§7.2.37si proponitur, cur factum sit, aut falsam causam aut levem aut ignotam reo dicet.
If it is proposed why it was done, the advocate will call it either a false cause, or a light one, or one unknown to the defendant.
possunt autem esse aliquae interim ignotae, an heredem habuerit, an accusaturus fuerit eum, a quo dicitur occisus.
Moreover, there can be some causes that are sometimes unknown, such as whether he had an heir, or whether he was about to accuse him by whom he is said to have been killed.
si alia defecerint, non utique spectandas esse causas; nam quem posse reperiri, qui non metuat, oderit, speret?
If other remedies fail, we must argue that causes are not in any case to be regarded; for who can be found who does not fear, hate, or hope?
§7.2.38plurimos tamen haec salva innocentia facere.
Yet very many people do these things while preserving their innocence.
neque illud est omittendum, non omnes causas in omnibus personis valere.
Nor is that to be omitted, that not all causes are valid for all persons.
nam ut alicui sit furandi causa paupertas, non erit idem in Curio Fabricioque momentum.
For though poverty may be a cause of stealing for someone, it will not have the same weight in Curius and Fabricius.
§7.2.39de causa prius an de persona dicendum sit, quaeritur, varieque est ab oratoribus factum, a Cicerone etiam praelatae frequenter causae.
Whether we should speak first of the cause or of the person is asked, and it has been done variously by orators, and by Cicero even the causes were frequently preferred.
mihi, si neutro litis condicio praeponderet, secundum naturam videtur incipere a persona.
To me, if the condition of the lawsuit does not preponderate in either direction, it seems according to nature to begin with the person.
nam hoc magis generale est rectiorque divisio, an ullum crimen credibile, an hoc.
For this is more general and is a more correct division: whether any crime is credible, or whether this crime is.
§7.2.40potest tamen id ipsum, sicut pleraque, vertere utilitas.
Yet utility itself, like most things, can change this.
nec tantum causae voluntatis sunt quaerendae, sed interim et erroris, ut ebrietas, ignorantia.
And we must inquire not only into causes of volition, but sometimes also of error, such as drunkenness and ignorance.
nam ut haec in qualitate crimen elevant, ita in coniectura premunt.
For as these in quality elevate the crime, so in conjecture they press hard upon it.
§7.2.41et persona quidem nescio an unquam, utique in vero actu rei, possit incidere, de qua neutra pars dicat; de causis frequenter quaeri nihil attinet, ut in adulteriis, ut in furtis, quia illas per se ipsa crimina secum habent.
And as for the person, I do not know whether there can ever happen a case, at least in a real trial, about which neither party speaks; whereas to inquire about causes is frequently of no relevance, as in adulteries and thefts, because these crimes carry their causes with them by themselves.
§7.2.42post haec intuenda videntur et consilia, quae late patent; an credibile sit, reum sperasse id a se scelus effici posse, an ignorari, cum fecisset, an, etiamsi ignoratum non esset, absolvi vel poena levi transigi vel tardiore vel ex qua minus incommodi consecuturus quam ex facto gaudii videretur, an etiam tanti putaverit poenam subire; §7.2.43post haec, an alio tempore et aliter facere vel facilius vel securius potuerit, ut dicit Cicero pro Milone enumerans plurimas occasiones, quibus ab eo Clodius impune occidi potuerit; praeterea, cur potissimum illo loco, illo tempore, illo modo sit aggressus, (qui et ipse diligentissime tractatur pro eodem locus) an, §7.2.44etiamsi nulla ratione ductus est, impetu raptus sit et absque sententia, (nam vulgo dicitur scelera non habere consilium) an etiam consuetudine peccandi sit ablatus.
After these, plans also seem to be inspected, which lie open widely; whether it is credible that the defendant hoped that this crime could be accomplished by himself, or would be unknown when he had done it, or, even if it were not unknown, that he would be acquitted or get off with a light punishment or a slower one, or one from which he would seem to derive less inconvenience than joy from the deed, or whether he even thought it worth while to undergo the punishment; after these, whether he could have done it at another time and otherwise, either more easily or more securely, as Cicero says in defence of Milo, enumerating very many occasions on which Clodius could have been killed by him with impunity; besides, why he attacked most of all in that place, at that time, and in that manner, (which topic itself is also treated most diligently in defence of the same man) or, even if he was led by no reason, whether he was carried away by impulse and without planning (for it is commonly said that crimes have no plan), or whether he was also carried away by a habit of sinning.
excussa prima parte, an voluerit, sequitur, an potuerit.
Having examined the first part, whether he willed it, there follows whether he could have done it.
hic tractatur locus, tempus, ut furtum in loco cluso, frequenti, tempore vel diurno, cum testes plures, vel nocturno, cum maior difficultas.
Here is treated place and time, as theft in a closed place, in a crowded place, or in the daytime when there are more witnesses, or at night when the difficulty is greater.
§7.2.45inspiciuntur itaque difficultates occasionesque, quae sunt plurimae ideoque exemplis non egent.
Thus difficulties and opportunities are inspected, which are very numerous and therefore do not need examples.
hic sequens locus talis est, ut, si fieri non potuit, sublata sit lis; si potuit, sequatur quaestio an fecerit.
Here the following topic is of such a kind that, if it could not be done, the lawsuit is removed; if it could, there follows the question whether he did it.
sed haec etiam ad animi coniecturam pertinent, nam et ex his colligitur an speraverit.
But these also belong to the conjecture of the mind, for from these also it is gathered whether he hoped.
ideo spectari debent et instrumenta, ut Clodii ac Milonis comitatus.
Therefore, instruments must also be regarded, such as the retinues of Clodius and Milo.
quaestio, §7.2.46an fecerit, incipit a secundo tempore, id est praesenti, deinde coniuncto, quorum sunt sonus, clamor, gemitus; insequentis latitatio, metus, similia.
The question whether he did it begins from the second time, that is, the present, then from the conjoined time, of which are sound, cry, groan; of the following time, hiding, fear, and the like.
his accedunt signa, de quibus tractatum est, verba etiam et facta, quaeque antecesserunt quaeque insecuta sunt.
To these are added signs, of which we have treated, words also and deeds, both those which preceded and those which followed.
§7.2.47haec aut nostra sunt aut aliena.
These are either ours or of others.
sed verba nobis magis nocent et minus prosunt nostra quam aliena; magis prosunt et minus nocent aliena quam nostra.
But our own words hurt us more and profit us less than those of others; those of others profit us more and hurt us less than our own.
facta autem interim magis prosunt nostra, interim aliena, ut si quid, quod pro nobis sit, adversarius fecit; semper vero magis nocent nostra quam aliena.
Deeds, however, sometimes our own profit us more, sometimes those of others, as if the adversary did something which is in our favor; but our own deeds always hurt us more than those of others.