§7.4.33de accusatore constituendo, quae iudicia divinationes vocantur; in quo genere Cicero quidem, qui mandantibus sociis Verrem deferebat, hac usus est divisione, spectandum a quo maxime agi velint ii quorum de ultione quaeritur, a quo minime velit is qui accusatur.
Concerning the selection of an accuser, which trials are called 'divinations'; in which kind Cicero indeed, who was prosecuting Verres on behalf of the allies who entrusted him, used this division: that it must be considered from whom those whose revenge is sought especially wish the action to be conducted, and from whom the accused least wishes it.
frequentissimae tamen hae sunt quaestiones, §7.4.34uter maiores causas habeat, uter plus industriae aut virium sit adlaturus ad accusandum, uter id fide meliore facturus.
Yet these questions are most frequent: which of the two has more important causes, which is going to bring more industry or strength to the prosecution, and which is going to do it with better faith.
§7.4.35tutelae praeterea; in quo iudicio solet quaeri, an alia de re quam de calculis cognosci oporteat, an fidem praestare debeat tantum, non etiam consilium et eventum.
Moreover, actions of guardianship; in which trial it is usually asked whether the inquiry ought to be concerning any matter other than accounts, or whether the guardian ought to guarantee good faith only, and not also advice and the outcome.
cui simile est male gestae procurationis, quae in foro negotiorum gestorum; nam et mandati actio est.
Similar to this is the action of bad management of procuration, which in the forum is called 'management of affairs'; for there is also an action of mandate.
§7.4.36praeter haec finguntur in scholis et inscripti maleficii, in quibus aut hoc quaeritur, an inscriptum sit aut hoc, an maleficium sit, raro utrumque.
Besides these, there are devised in the schools actions of 'unwritten crime', in which either this is asked, whether it is unwritten, or this, whether it is a crime, rarely both.
male gestae legationis apud Graecos et veris causis frequens, ubi iuris loco quaeri solet, an omnino aliter agere quam mandatum sit liceat, et quo usque sit legatus, quoniam aliae in nuntiando, aliae in renuntiando sunt, ut in Heio, qui testimonium in Verrem dixerat post perlatam legationem.
The action of bad management of an embassy is frequent among the Greeks and even in real causes, where in place of law it is usually asked whether it is permitted to act entirely otherwise than has been mandated, and how far one is an ambassador, since there are some circumstances in delivering a message, and others in reporting back, as in the case of Heius, who had given testimony against Verres after his embassy had been completed.
§7.4.37plurimum tamen est in eo, quale sit factum.
Yet the greatest part is in what kind of deed it was.
rei publicae laesae: hinc moventur quidem illae iuris cavillationes, quid sit rem publicam laedere, et, laeserit an non profuerit, et, ab ipso an propter ipsum laesa sit: in facto tamen plurimum est.
In actions of 'injury to the state', from here indeed those legal cavils are raised: what it is to injure the state, and whether he injured it or simply did not benefit it, and whether it was injured by him himself or on account of him; yet the greatest part is in the deed.
ingrati quoque, in quo genere quaeritur, an is cum quo agitur acceperit beneficium. quod raro negandum est; ingratus est enim qui negat.
Also in the action of 'ingratitude', in which kind it is asked whether the person against whom the action is brought received a benefit; which is rarely to be denied, for he who denies it is ungrateful.
§7.4.38quantum acceperit, an reddiderit, an protinus qui non reddidit ingratus sit, an potuerit reddere, an id, quod exigebatur, debuerit, quo animo sit.
How much he received, whether he returned it, whether he who did not return it is immediately ungrateful, whether he was able to return it, whether he owed that which was demanded, and with what intention he acted.
simpliciores illae iniusti repudii, sub qua lege controversiae illud proprium habent, quod a parte accusantis defensio est, a defendentis accusatio.
More simple are those actions of 'unjust divorce', under which law controversies have this peculiar feature, that there is a defense on the side of the accuser, and an accusation on the side of the defender.
§7.4.39praeterea, cum quis rationem mortis in senatu reddit, ubi una quaestio est iuris, an is demum prohibendus sit, qui mori vult ut se legum actionibus subtrahat; cetera qualitatis.
In addition, when someone renders a reason for his death in the senate, where there is one question of law, whether only he who wishes to die to withdraw himself from legal actions should be prevented; the rest belong to quality.
finguntur et testamenta, in quibus de sola qualitate quaeratur, ut in controversia, quam supra exposui, in qua de parte patrimonii quarta, quam pater dignissimo ex filiis reliquerat, contendunt philosophus, medicus, orator.
Wills are also devised in which only quality is inquired into, as in the controversy which I set forth above, in which a philosopher, a physician, and an orator contend for a fourth part of the patrimony, which a father had left to the most worthy of his sons.
quod idem accidit, si orbae nuptias indicant pares gradu, et si inter propinquos de idoneo quaeratur.
The same thing happens if fatherless daughters claim marriages with those equal in degree, and if among relatives it is inquired who is the suitable person.
§7.4.40sed mihi nec omnes persequi materias in animo est, fingi enim adhuc possunt; nec omnes earum quaestiones, quia positionibus mutantur.
But it is not my intention to pursue all materials, for they can still be devised; nor all of their questions, because they are changed by the positions.
hoc tantum admiror Flavum, cuius apud me summa est auctoritas, cum artem scholae tantum componeret, tam anguste materiam qualitatis terminasse.
I only wonder at this, that Flavus, whose authority with me is very great, although he was composing a textbook only for the school, terminated the material of quality so narrowly.
§7.4.41quantitas quoque, ut dixi, etiamsi non semper, plerumque tamen eidem subiacet, seu modi est seu numeri.
Quantity also, as I have said, even if not always, yet mostly is subject to the same status, whether it is of degree or of number.
sed modus aliquando constat aestimatione facti, quanta sit culpa, quantumve beneficium, aliquando iure, cum id in controversiam venit, qua quis lege puniendus vel honorandus sit: §7.4.42stuprator decem milia dare debeat, quae poena huic crimini constitute est, an, quia se stupratus suspendit, capite puniri tanquam causa mortis.
But degree sometimes consists in the estimation of the deed, how great the fault is or how great the benefit, and sometimes in the law, when it comes into controversy by which law anyone ought to be punished or honored: whether a rapist ought to give ten thousand sesterces, which penalty is established for this crime, or, because the victim of the rape hanged himself, he should be punished with death as being the cause of death.
quo in genere falluntur, qui ita dicunt, tanquam inter duas leges quaeratur: nam de decem milibus nulla controversia est, quae non petuntur.
In which kind they are deceived who speak as if it were a question between two laws; for concerning the ten thousand there is no controversy, as they are not demanded.
§7.4.43iudicium redditur, an reus causa sit mortis.
The judgment is rendered on whether the accused is the cause of death.
in coniecturam quoque eadem species cadit, cum, perpetuo an quinquennali sit exilio multandus, in controversiam venerit; nam an prudens caedem commiserit quaeritur.
The same species falls also into conjecture, when it comes into controversy whether he is to be punished with perpetual or five-year exile; for it is asked whether he committed the slaughter knowingly.
§7.4.44illa quoque, quae ex numero ducitur, pendet ex iure, an Thrasybulo triginta praemia debeantur, et, cum duo fures pecuniam abstulerint, separatim quadruplum quisque an duplum debeat.
That quantity also which is drawn from number depends on law: whether thirty rewards are owed to Thrasybulus, and, when two thieves have stolen money, whether each owes fourfold separately or twofold.
sed hic quoque factum aestimatur et, tamen ius ipsum pendet ex qualitate.
But here also the deed is estimated, and yet the law itself depends on quality.