§7.4.12subiacet utilitati etiam illa defensio, si peius aliquid futurum fuit.
This defense also is subordinated to utility, if something worse was going to happen.
nam in comparatione malorum boni locum obtinet levius: ut si Mancinus foedus Numantinum sic defendat, quod periturus, nisi id factum esset, fuerit exercitus.
For in a comparison of evils, the lighter holds the place of a good: as if Mancinus should thus defend the treaty of Numantia, on the ground that the army would have perished unless that had been done.
hoc genus ἀντίστασις Graece nominatur, comparativum nostri vocant.
This genus is named antistasis in Greek; our people call it comparative.
§7.4.13haec circa defensionem facti; quae si neque per se ipsa nec adhibitis auxiliis dabitur, proximum est in alium transferre crimen, si possumus.
These are the matters concerning the defense of the deed; which if it is given neither by itself nor by employing aids, the next thing is to transfer the crime to another, if we can.
ideoque etiam in hos, qui citra scriptum sunt, status visa est cadere translatio Interdum ergo culpa in hominem relegatur, ut si Gracchus reus foederis Numantini, cuius metu leges populares tulisse in tribunatu videretur, missum se ab imperatore suo diceret.
And therefore even to these cases, which are outside of written law, the status of translation has seemed to apply. Sometimes, therefore, the blame is relegated to a person, as if Gracchus, when accused on account of the treaty of Numantia, from fear of which he was thought to have proposed popular laws during his tribuneship, should say that he was sent by his commander.
§7.4.14interim derivatur in rem, ut si is, qui testamento quid iussus non fecerit, dicat per leges id fieri non potuisse.
Sometimes it is diverted to a thing, as if he who has not done what he was ordered to do by a will should say that it could not be done through the laws.
hoc μετάστασιν dicunt.
This they call metastasis.
hinc quoque exclusis excusatio superest.
From here also, for those who are excluded, excuse remains.
ea est aut ignorantiae, ut si quis fugitivo stigmata scripserit eoque ingenuo iudicato neget se liberum esse scisse; aut necessitatis, ut cum miles ad commeatus diem non adfuit et dicit se fluminibus interclusum aut valetudine.
That is either of ignorance, as if someone should brand a runaway slave and, upon his being judged free-born, deny that he knew he was free; or of necessity, as when a soldier has not been present on the day of his leave and says that he was shut off by rivers or by illness.
§7.4.15fortuna quoque saepe substituitur culpae.
Fortune also is often substituted for blame.
nonnunquam male fecisse nos sed bono animo dicimus.
Sometimes we say that we did wrong but with a good intention.
utriusque rei multa et manifesta exempla sunt; idcirco non est eorum necessaria expositio.
There are many and manifest examples of both things; therefore their exposition is not necessary.
si omnia, quae supra scripta sunt, deerunt, videndum, an imminui culpa possit.
If all things which have been written above are lacking, we must see whether the blame can be mitigated.
hic est ille, qui a quibusdam fieri solet, status quantitatis.
Here is that status of quantity, which is accustomed to be established by some.
§7.4.16sed ea cum sit aut poenae aut honoris, ex qualitate facti constituitur, eoque nobis sub hoc esse statu videtur sicut eius quoque, quae ad numerum refertur a Graecis.
But since that is either of penalty or of honor, it is established from the quality of the deed, and therefore it seems to us to be under this status, just as that of the one which is referred to number by the Greeks.
nam et πηλικότητα et ποσότητα dicunt, nos utrumque appellatione una complectimur.
For they say both pelikoteta and posoteta, while we embrace both under a single appellation.
§7.4.17ultima est deprecatio, quod genus causae plerique negarunt in iudicium unquam venire.
The last is the plea for mercy, which kind of cause most have denied ever comes into judgment.
quin Cicero quoque pro Q. Ligario idem testari videtur, cum dicit, causas, Caesar, egi multas equidem tecum, dum te in foro tenuit ratio honorum tuorum, certe nunquam hoc modo: Ignoscite, indices, erravit, lapsus est, non putavit, si unquam posthac, et cetera. §7.4.18in senatu vero et apud populum et apud principem et ubicunque iuris dementia est, habet locum deprecatio.
Indeed, Cicero also seems to testify to the same in defense of Q. Ligarius when he says: "I have indeed, Caesar, pleaded many causes with you, while the calculation of your offices kept you in the forum, certainly never in this manner: 'Forgive, judges, he erred, he slipped, he did not think, if ever hereafter,' and so forth." But in the senate, and before the people, and before the prince, and wherever there is the madness of law, a plea for mercy has its place.
in qua plurimum valent ex ipso, qui reus est, haec tria; vita praecedens, si innocens, si bene meritus, si spes in futurum innocenter victuri et in aliquo usu futuri; praeterea si vel aliis incommodis vel praesenti periculo vel paenitentia videatur satis poenarum dedisse; extra nobilitas, dignitas, propinqui, amici.
In which these three things from the defendant himself are most powerful: his past life, if innocent, if well-deserving, if there is hope for the future of his living innocently and being of some use; besides, if he seems to have paid enough penalties either by other disadvantages, or by present danger, or by repentance; externally, nobility, dignity, relations, friends.
§7.4.19in eo tamen qui cognoscit plurimum ponendum, si laus eum misericordis potius quam reprehensio dissoluti consecutura est.
Yet the greatest weight must be placed on the one who judges, if praise of being merciful rather than blame of being lax is going to follow him.
verum et in iudiciis, etiamsi non toto genere causae, tamen ex parte magna hic locus saepe tractatur.
But even in trials, although not in the whole kind of cause, yet in a great part this topic is often treated.
nam et divisio frequens est, etiamsi fecisset, ignoscendum fuisse idque in causis dubiis saepe praevaluit, et epilogi omnes in eadem fere materia versari solent.
For the division is frequent, 'even if he had done it, he ought to have been forgiven,' and this has often prevailed in doubtful cases, and all epilogues are accustomed to turn on nearly the same material.
§7.4.20sed nonnunquam etiam rei totius hic summa constituta.
But sometimes even the chief point of the whole matter is established here.
an vero si exheredatum a se filium pater testatus fuerit elogio, propterea quod is meretricem amaverit, non omnis hic erit quaestio, an huic delicto pater debuerit ignoscere et centumviri tribuere debeant veniam? sed etiam in formulis, cum poenariae sunt actiones, ita causam partimur, an commissa sit poena, an exigi debeat.
For if a father has testified in a codicil that his son was disinherited by him because he loved a prostitute, will not the whole question here be whether the father ought to have forgiven this offense and the centumviri ought to grant pardon? But even in the formulae, when the actions are penal, we divide the case in this way: whether the penalty has been incurred, and whether it ought to be exacted.
id autem, quod illi viderunt, verum est, reum a iudicibus hoc defensionis modo liberari non posse.
But that which those writers saw is true, that a defendant cannot be freed from the judges by this mode of defense.
§7.4.21de praemiis autem quaeruntur duo: an ullo sit dignus, qui petit, an tanto; ex duobus, uter dignior; ex pluribus, quis dignissimus.
But concerning rewards, two things are inquired: whether he who seeks is worthy of any reward, and whether of so much; out of two, which is the more worthy; out of many, who is the most worthy.
quorum tractatus ex ipso meritorum genere ducuntur.
The treatments of which are drawn from the very kind of services.
et intuebimur non rem tantum, sive adleganda sive comparanda erit, sed personam quoque; nam et multum interest, tyrannum iuvenis occiderit an senex, vir an femina, alienus an coniunctus;
And we shall look not only at the deed, whether it must be set forth or compared, but also at the person; for it makes a great difference whether a young man killed a tyrant or an old man, a man or a woman, a stranger or a relative;