§9.2.87ego in universum neque oratoris puto esse unquam praevaricari, neque litem intelligo, in qua pars utraque idem velit, neque tam stultum quemquam, qui, si vivere vult, mortem potius male petat quam omnino non petat.
Generally, I do not think that it is ever the part of an orator to collude with the opponent, nor do I understand a lawsuit in which both parties wish for the same thing, nor that anyone is so foolish that, if he wishes to live, he would rather seek death in a bad way than not seek it at all.
§9.2.88non tamen nego esse controversias huiusmodi figuratas, ut est illa, reus parricidii, quod fratrem occidisset, damnatum iri videbatur; pater pro testimonio dixit cum se iubente fecisse; absolutum abdicat.
However, I do not deny that there are figured controversies of this kind, such as that one: a defendant accused of parricide, because he had killed his brother, seemed about to be condemned; the father spoke in testimony that he had done it by his order; when he was acquitted, the father disinherits him.
nam neque in totum filio parcit nec, quod priore iudicio adfirmavit, mutare palam potest et, ut non durat ultra poenam abdicationis, ita abdicat tamen; et alioqui figura in patrem plus facit, quam licet, in filium minus.
For he neither spares his son entirely, nor can he openly change what he affirmed in the prior trial, and, while he does not extend the punishment beyond that of disinheritance, yet he disinherits him; and otherwise the figure does more than is allowed against the father, and less against the son.
§9.2.89ut autem nemo contra id, quod vult, dicit, ita potest melius aliquid velle quam dicit, quo modo ille abdicatus, qui a patre, ut filium expositum et ab eo educatum solutis alimentis recipiat, postulat, revocari fortasse mavult, non tamen quod petit non vult.
But just as no one speaks against what he wishes, so he can wish for something better than what he says, in the manner of that disinherited son who demands of his father that he receive back, upon payment for his maintenance, his son who had been exposed and brought up by another; he perhaps prefers to be recalled himself, yet he does not wish not to have what he petitions for.
§9.2.90est latens et illa significatio qua, cum ius asperius petitur a iudice fit tamen spes aliqua clementiae, non palam, ne paciscamur, sed per quandam credibilem suspicionem, ut in multis controversiis, sed in hac quoque: raptor, nisi intra tricesimum diem et raptae patrem et suum exoraverit, pereat; qui exorato raptae patre suum non exorat, agit cum eo dementia. §9.2.91nam si promittat hic pater, lis tollitur; si nullam spem faciat, ut non demens, crudelis certe videatur et a se iudicem avertat.
There is also that latent significance by which, when a harsher right is demanded of the judge, some hope of clemency is nevertheless created, not openly, lest we seem to make a bargain, but through a certain credible suspicion, as in many controversies, and in this one also: "Let a ravisher perish unless within thirty days he has persuaded both the father of the ravished girl and his own; he who, having persuaded the father of the ravished girl, does not persuade his own, sues him for dementia." For if this father should promise, the dispute is ended; if he should give no hope, though he might not seem mad, he would certainly seem cruel and would alienate the judge from himself.
latro igitur optime, occides ergo? — si potero. remissius et pro suo ingenio pater Gallio, dura, anime, dura; here fortior fuisti. §9.2.92confinia sunt his celebrata apud Graecos schemata, per quae res asperas mollius significant.
Therefore, Latro put it excellently: "Will you then kill him?" — "If I can." More gently and according to his own disposition, Gallio put it in the father's person: "Endure, my soul, endure; yesterday you were stronger." Bordering on these are the figures celebrated among the Greeks, through which they express harsh things more softly.
nam Themistocles suasisse existimatur Atheniensibus, ut urbem apud deos deponerent, quia durum erat dicere, ut relinquerent.
For Themistocles is thought to have urged the Athenians to deposit their city with the gods, because it was harsh to say that they should abandon it.
et, qui Victorias aureas in usum belli conflari volebat, ita declinavit, victoriis utendum esse. totum autem allegoriae simile est aliud dicere aliud intelligi velle.
And he who wished golden Victories to be melted down for the use of war, evaded it thus: "that we must make use of our victories." But the whole practice of saying one thing and wishing another to be understood is similar to allegory.
§9.2.93quaesitum etiam est, quomodo responderi contra figuras oporteret.
It has also been asked how one ought to reply to figures.
et quidam semper ex diverso aperiendas putaverunt, sicut latentia vitia rescinduntur.
And some have thought they should always be opened up from the opposite side, just as latent defects are lanced.
idque sane frequentissime faciendum est; aliter enim dilui obiecta non possunt, utique cum quaestio in eo consistit, quod figurae petunt.
And this indeed must be done very frequently; for otherwise the charges cannot be diluted, especially when the question consists in that which the figures aim at.
at cum maledicta sunt tantum, et non intelligere interim bonae conscientiae est.
But when they are mere insults, sometimes not to understand them is a sign of a good conscience.
§9.2.94atque etiam si fuerint crebriores figurae quam ut dissimulari possint, postulandum est, ut nescio quid illud, quod adversarii obliquis sententiis significare voluerint, si fiducia sit, obiiciant palam, aut certe non exigant ut, quod ipsi non audent dicere, id iudices non modo intelligant, sed etiam credant.
And even if the figures are too frequent to be ignored, it must be demanded that, if they have confidence, they should bring out openly whatever that is which our adversaries wished to signify by oblique sentiments, or at least they should not require that what they themselves do not dare to say, the judges should not only understand but also believe.
§9.2.95utilis aliquando etiam dissimulatio est, ut in eo (nota enim fabula est), qui, cum esset contra eum dictum, iura per paris tui cineres, paratum se esse respondit, et iudex condicione usus est, clamante multum advocato schemata de rerum natura tolli, ut protinus etiam praeceptum sit, eiusmodi figuris utendum temere non esse.
Sometimes even dissimulation is useful, as in the case of him (for the story is well known) who, when it had been said against him, "Swear by the ashes of your equal," replied that he was ready, and the judge accepted the condition, while the advocate cried out loudly that figures were being banished from the nature of things, so that immediately it was even prescribed that such figures should not be used rashly.
§9.2.96tertium est genus, in quo sola melius dicendi petitur occasio; ideoque id Cicero non putat esse positum in contentione.
The third is the class in which only an opportunity for speaking better is sought; and therefore Cicero does not think it is placed in actual contention.
tale est illud, quo idem utitur in Clodium: quibus iste, qui omnia sacrificia nosset, facile ab se deos placari posse arbitrabatur.
Such is that which the same writer uses against Clodius: "by which that fellow, who knew all the sacrifices, thought the gods could easily be appeased by him."