§9.2.68vera negotia nunquam adhuc habuerunt hanc silentii necessitatem; sed aliam huic similem, verum multo ad agendum difficiliorem, cum personae potentes obstant, sine quarum reprehensione teneri causa non possit.
Actual lawsuits have never yet had this necessity of silence; but they have another similar to it, indeed much more difficult to handle, when powerful persons stand in the way, without censuring whom the case cannot be maintained.
§9.2.69ideoque hoc parcius et circumspectius faciendum est, quia nihil interest, quomodo offendas, et aperta figura perdit hoc ipsum quod figura est.
And therefore this must be done more sparingly and circumspectly, because it makes no difference how you offend, and an open figure loses the very fact that it is a figure.
ideoque a quibusdam tota res repudiatur, sive intelligatur sive non intelligatur.
Therefore, the whole practice is rejected by some, whether it is understood or not.
sed licet modum adhibere; in primis, ne sint manifestae.
But it is permitted to observe moderation; especially, that they should not be manifest.
non erunt autem, si non ex verbis dubiis et quasi duplicibus petentur, quale est in suspecta nuru, duxi uxorem, quae patri placuit; §9.2.70aut, quod est multo ineptius, compositionibus ambiguis, ut in illa controversia, in qua infamis amore filiae virginis pater raptam eam interrogat, a quo vitiata sit, quis te, inquit, rapuit? tu, pater, nescis? §9.2.71res ipsae perducant iudicem ad suspicionem, et amoliamur cetera, ut hoc solum supersit; in quo multum etiam adfectus iuvant et interrupta silentio dictio et cunctationes.
They will not be so, however, if they are not sought from doubtful and, as it were, double-meaning words, such as in the case of the suspected daughter-in-law: "I married a wife who pleased my father"; Or, what is much more inept, by ambiguous word-arrangements, as in that controversy in which a father, infamous for his love for his virgin daughter, asks her after she has been abducted, by whom she was defiled, and says: "Who abducted you?" and she replies: "Do you, father, not know?" Let the facts themselves lead the judge to suspicion, and let us clear away other things so that this alone remains; in which passion also helps much, and a delivery broken by silence, and hesitations.
sic enim fiet, ut iudex quaerat illud nescio quid ipse, quod fortasse non crederet, si audiret, et ei, quod a se inventum existimat, credat.
For in this way it will happen that the judge himself seeks that certain something which he would perhaps not believe if he heard it, and believes in that which he thinks has been discovered by himself.
§9.2.72sed ne si optimae quidem sint, esse debent frequentes.
But even if they are of the best kind, they ought not to be frequent.
nam densitate ipsa figurae aperiuntur, nec offensae minus habent, sed auctoritatis; nec pudor videtur, quod non palam obiicias, sed diffidentia.
For by their very density figures are revealed, and they do not have less of offense, but less of authority; and what you do not openly charge seems not to be modesty, but lack of confidence.
in summa, sic maxime iudex credit figuris, si nos putat nolle dicere.
In short, the judge believes figures most when he thinks we do not wish to speak.
§9.2.73equidem et in personas incidi tales et in rem quoque, quod est magis rarum, quae obtineri nisi hac arte non posset.
Indeed, I myself have fallen in with such persons and also with a case, which is rarer, which could not be won except by this art.
ream tuebar, quae subiecisse dicebatur mariti testamentum, et dicebantur chirographum marito exspiranti heredes dedisse; et verum erat.
I was defending a female defendant who was said to have substituted her husband's will, and the heirs were said to have given a signed document to the dying husband; and it was true.
§9.2.74nam, quia per leges institui uxor non poterat heres, id fuerat actum, ut ad eam bona per hoc tacitum fideicommissum pervenirent.
For because by law a wife could not be appointed heir, it had been so managed that the property should come to her through this tacit trust.
et caput quidem tueri facile erat, si hoc diceremus palam, sed peribat hereditas.
And indeed, it was easy to protect her life if we said this openly, but the inheritance would be lost.
ita ergo fuit nobis agendum, ut iudices illud intelligerent factum, delatores non possent apprehendere ut dictum; et contigit utrumque.
Therefore, we had to plead in such a way that the judges understood that fact had occurred, while the informers could not seize upon it as having been said; and both things happened.
quod non inseruissem, veritus opinionem iactantiae, nisi probare voluissem in foro quoque esse his figuris locum.
I would not have inserted this, fearing the reputation of boasting, unless I had wished to prove that there is a place for these figures in the forum as well.
quaedam etiam, §9.2.75quae probare non possis, figura potius spargenda sunt.
Certain things, too, which you cannot prove, should rather be scattered by a figure.
haeret enim nonnunquam telum illud occultum, et hoc ipso, quod non apparet, eximi non potest; at si idem dicas palam, et defenditur et probandum est.
For that hidden weapon sometimes sticks, and by this very fact, that it does not appear, it cannot be extracted; but if you say the same thing openly, it is both defended against and must be proved.
§9.2.76cum autem obstat nobis personae reverentia, (quod secundum posuimus genus) tanto cautius dicendum est, quanto validius bonos inhibet pudor quam metus.
But when respect for a person stands in our way (which we placed as the second kind), we must speak all the more cautiously, as modesty restrains good men more powerfully than fear.
hic vero tegere nos iudex quod sciamus et verba vi quadam veritatis erumpentia credat coercere.
Here, indeed, let the judge believe that we are covering up what we know, and that we are restraining words that break out by a certain force of truth.
nam quanto magis aut ipsi, in quos dicimus, aut iudices aut adsistentes oderint hanc maledicendi lasciviam, si velle nos credant? aut quid interest quomodo dicatur,
For how much more will either those very persons against whom we speak, or the judges, or the bystanders, hate this wantonness of speaking ill, if they believe we wish to do so?
§9.2.77cum et res et animus intelligitur? quid dicendo denique proficimus, nisi ut palam sit facere nos quod ipsi sciamus non esse faciendum? atqui praecipue prima, quibus praecipere coeperam, tempora hoc vitio laborarunt.
Or what difference does it make how it is said, when both the matter and the intention are understood? What indeed do we gain by speaking, except that it is plain that we are doing what we ourselves know ought not to be done? And yet, especially the first times when I began to teach labored under this vice.
dicebant enim libenter tales controversias, quae difficultatis gratia placent, cum sint multo faciliores.
For they willingly spoke such controversies which please on account of their difficulty, though they are much easier.