§7.4.1est autem qualitas alia de summo genre atque ea quidem non simplex.
But there is another kind of quality belonging to the highest genus, and it is indeed not simple.
nam et qualis sit cuiusque rei natura et quae forma quaeritur: an immortalis anima, an humana specie deus; et de magnitudine ac numero, quantus sol, an unus mundus.
For both the nature of each thing, what it is, and its form are inquired into: whether the soul is immortal, whether God has a human form; and concerning magnitude and number, how large the sun is, or whether there is only one world.
quae omnia coniectura quidem colliguntur, quaestionem tamen habent in eo, qualia sint? haec et in suasoriis aliquando tractari solent,
All of these are indeed gathered by conjecture, yet they involve a question in this point: what quality do they have?
§7.4.2ut, si Caesar deliberet, an Britanniam impugnet, quae sit Oceani natura, an Britanniam insula (nam tum ignorabatur), quanta in ea terra, quo numero militum aggredienda, in consilium ferendum sit.
These are also accustomed to be treated sometimes in suasoriae, as, if Caesar should deliberate whether to attack Britain, there must be brought into counsel what the nature of the Ocean is, whether Britain is an island (for that was then unknown), how large the land is, and with what number of soldiers it should be attacked.
eidem qualitati succedunt facienda ac non facienda, appetenda, vitanda; quae in suasorias quidem maxime cadunt, sed in controversiis quoque sunt frequentia, hac sola differentia, quod illic de futuris hic de factis agitur.
To this same quality succeed things to be done and not to be done, things to be sought and to be avoided; which indeed fall especially into suasoriae, but are also frequent in controversiae, with this sole difference, that there the discussion is about future events, here about past actions.
§7.4.3item demonstratiuae partis omnia sunt in hoc statu: factum esse constat, quale sit factum quaeritur.
Likewise, all matters of the demonstrative branch are in this status: it is established that the deed was done, and the question is what quality the deed has.
lis est omnis aut de praemio aut de poena aut de quantitate.
Every dispute is either about a reward, or a punishment, or quantity.
igitur genus causae aut simplex aut comparativum.
Therefore, the genus of the cause is either simple or comparative.
illic, quid aequum, hic, quid aequius aut quid aequissimum sit, excutitur.
In the former, what is equitable is examined; in the latter, what is more equitable or most equitable.
cum de poena iudicium est, a parte eius, qui causam dicit, aut defensio est criminis aut imminutio aut excusatio aut, ut quidam putant, deprecatio.
When the judgment is about a punishment, on the part of the defendant there is either a defense of the crime, or a mitigation, or an excuse, or, as some think, a plea for mercy.
§7.4.4defensio longe potentissima est, qua ipsum factum, quod obiicitur, dicimus honestum esse.
Defense is by far the most powerful, by which we say that the very deed which is charged is honorable.
abdicatur aliquis, quod invito patre militarit, honores petierit, uxorem duxerit: tuemur, quod fecimus.
Someone is disinherited because he went to war, sought offices, or married a wife against his father's will: we defend what we did.
hanc partem vocant Hermagorei κατ᾽ ἀντίλημψιν, ad intellectum id nomen referentes.
The followers of Hermagoras call this branch kat' antilempsin, referring the name to mental comprehension.
Latine ad verbum translatam non invenio; absoluta appellatur.
I do not find it translated literally into Latin; it is called absolute.
sed enim de re sola quaestio, iusta sit ea necne.
For indeed the question is about the action alone, whether it is just or not.
§7.4.5iustum omne continetur natura vel constitutione; natura, quod fit secundum cuiusque rei dignitatem.
Everything just is contained either in nature or in institution; by nature, what is done according to the dignity of each thing.
§7.4.6hinc sunt pietas, fides, continentia et talia.
Hence arise piety, good faith, self-control, and the like.
adiiciunt et id, quod sit par.
They also add that which is equal.
verum id non temere intuendum est: nam et vis contra vim et talio nihil habent adversum eum, qui prior fecit, iniusti; et non, quoniam res pares sunt, etiam id est iustum, quod antecessit.
But this must not be looked at carelessly: for both force against force and retaliation contain nothing unjust against him who did it first; and it is not the case that, since the actions are equal, that which preceded is also just.
illa utrinque iusta, eadem lex, eadem condicio; ac forsitan ne sint quidem paria, quae ulla parte sunt dissimilia.
Those things are just on both sides which share the same law, the same condition; and perhaps things that are in any part dissimilar are not even equal.
constitutio est in lege, more, iudicato, pacto.
Institution consists in law, custom, precedent, and pact.
§7.4.7alterum est defensionis genus, in quo factum per se improbabile adsumptis extrinsecus auxiliis tuemur; id vocant κατ᾽ ἀντίθεσιν Latine hoc quoque non ad verbum transferunt, adsumptiva enim dicitur causa.
The other kind of defense is that in which we protect a deed, which is in itself indefensible, by assuming external aids; this they call kat' antithesin, which in Latin they also do not translate literally, for it is called an assumptive cause.
in quo genere fortissimum est, §7.4.8si crimen causa facti tuemur, qualis est defensio Orestis, Horatii, Milonis.
In this genus the strongest is: if we defend the crime by the cause of the deed, such as is the defense of Orestes, Horatius, and Milo.
Ἀντέγκλημα dicitur, quia omnis nostra defensio constat eius accusatione, qui vindicatur: occisus est, sed latro; excaecatus, sed raptor. §7.4.9est et illa ex causis facti ducta defensio priori contraria, in qua neque factum ipsum per se, ut in absoluta quaestione, defenditur neque ex contrario facto, sed ex aliqua utilitate aut rei publicae aut hominum multorum aut etiam ipsius adversarii, nonnunquam et nostra, si modo id erit, quod facere nostra causa fas sit; quod sub extrario accusatore et legibus agente prodesse nunquam potest, in domesticis disceptationibus potest.
It is called antegklema, because our entire defense consists in the accusation of the person who is avenged: "he was killed, but he was a robber"; "he was blinded, but he was a rapist." There is also that defense drawn from the causes of the deed which is contrary to the former, in which neither the deed itself is defended by itself, as in an absolute question, nor by a contrary deed, but from some utility either of the state, or of many men, or even of the opponent himself, and sometimes our own, provided only that it be something which it is lawful to do for our own sake; which can never be of benefit under an external accuser and one acting according to the laws, but can be in domestic disputes.
§7.4.10nam et filiis pater in iudicio abdicationis et maritus uxori, si malae tractationis accusabitur, et patri filius, si dementiae causa erit, non inverecunde dicet multum sua interfuisse.
For both a father to his sons in a trial of disinheritance, and a husband to his wife if he is accused of ill-treatment, and a son to his father if it is a case of madness, will say without shame that it was of great importance to his own interest.
in quo tamen incommoda vitantis melior quam commoda petentis est causa.
In which, however, the case of one avoiding disadvantages is better than that of one seeking advantages.
§7.4.11quibus similia etiam in vera rerum quaestione tractantur.
Similar things to these are also treated in the real investigation of matters.
nam quae in scholis abdicatorum, haec in foro exheredatorum a parentibus et bona apud centumviros repetentium ratio est; quae illic malae tractationis, hic rei uxoriae, cum quaeritur utrius culpa divortium factum sit; quae illic dementiae, hic petendi curatoris.
For the principles which exist in the schools concerning the disinherited are the same in the forum for those who are disinherited by parents and reclaim their property before the centumviri; those which are of ill-treatment there are of the wife's property here, when it is asked by whose fault the divorce was made; those which are of madness there are of seeking a curator here.