The consideration of quality may have regard to more points than one in any matter, § 1-3. The strongest kind of defense is when the accused says that they deed laid to his charge was blameless, 4-6. We may defend an act by extrinsic aids, 7-12. Another mode of proceeding is to transfer the guilt to another, 13, 14. We may consider whether the weight of the charge can be extenuated, 15-16. Deprecation, 17-20. Questions about rewards, 21-23. Considerations of quality admit the highest efforts of the orator, 24. Causes which Virginius puts under this head, 25-31. Other species of causes, 32-34. 1. AS to quality, it is sometimes considered in the most comprehensive sense, and in reference to more points than one; for it is sometimes a question what is the nature of a thing, and what is its form, as whether the soul is immortal, and whether God is of human shape; sometimes the inquiry is about magnitude and number, as what is the size of the sun? Are there more worlds than one? All such questions are indeed to be solved by conjecture, but they involve the question of quality. 2. They are also often treated in deliberative questions, as, if Caesar should deliberate whether he should make war on Britain, he would have to inquire what is the nature of the ocean there; whether Britain is an island (for the point was then unknown); what extent of land there is in it; and with what number of forces it would be proper to attack it. Under the head of quality, too, falls the consideration of what ought to be done or not done; to be sought or to be avoided; matters which enter most into deliberative questions, but also present themselves frequently in judicial pleadings, the only difference being that in one case the question regards the future, in the other the past. 3. All that relates, too, to the demonstrative kind of oratory falls under the consideration of quality; it is admitted that something has been done; it is to be shown what sort of a thing has been done. All judicial causes relate either to reward, or to punishment, or to the measure of one or the other. The first kind of cause is accordingly either simple or comparative, in the former we inquire what is just; in the latter, what is more just; or what is most just. When the point for decision has respect to punishment, there is offered on the part of him who is accused, either justification of the charge, or extenuation of it, or excuse, or, as some think, deprecation. 4. Of these the most efficient is justification, by which we make it appear that the act, which is laid to the charge of the accused, was unobjectionable. A son is disinherited because he has served in the army, or been a candidate for office, or taken a wife, without the consent of his father; the father justifies what he has done. The followers of Hermagoras call this kind of defense κατ᾽ ἀντίληψιν (kat' antilēpsin) , "contrasumption," using that term with reference to the mind of the pleader. I find no literal translation of the word in Latin; but it is called defensio absoluta, "absolute defense." 5. The sole question, however, is respecting the act, whether it is just or not. Whatever is just, is founded either on nature or on human institutions. 6. On nature is based whatever is consonant to dignity of anything, in which designation are comprehended the virtues piety, integrity, continence, etc. Some also add to render like for like; but that is not to be lightly admitted; for though violence opposed to violence, or retaliation, may offer no injustice towards him who has been the aggressor, yet it does not follow that. because the act of each party is similar, tile first act was just. Where there is strict justice on both sides, there is the same law, and the same condition; and perhaps no acts can be regarded as equal that are in any respect dissimilar. Human institutions consist of laws customs, decisions, arguments. 7. There is another mode of defense, in which we justify an act in itself indefensible by aids drawn from without; the Greeks call this defense κατ᾽ ἀντίθεσιν (antithesin), "by opposition." The Latins also do not render this literally, for among them it is called causa assumptiva, "defense by assumption." 8. In this kind of defense the strongest plea is when we justify the act by the motive of it; such is the plea of Orestes, Horatius, and Milo. It is also called ἀντέγκλημα (antenklēma), "recrimination," because all our defense depends on accusing the person who is indicated by the other party: He was killed, but he was a robber; he was emasculated, but he was a ravisher. 9. There is also another kind of defense derived from the motives of an act, which differs from that just mentioned, and in which a deed is neither justified on its own ground, as in the absolute defense, nor by opposing another deed to it, but on the representation of its having been of some service to our country, or to some body of men, or even to our adversary, or sometimes to ourselves, provided it be such a deed as we might lawfully do for our own benefit; an argument which can be of no profit with regard to an accuser who is a stranger to us, and who; prosecutes us according to the letter of the law, but which may be of use in reference to family disputes. 10. For a father may without presumption say to his children, on a trial for renouncing them, or a husband to his wife, if he is accused of treating her ill, or a son to his father, whom he seeks to prove insane, that what he has done was for his own interest; but, in such cases, the plea of escaping loss is much better than that of aiming at advantage. 11. Cases similar to those of the schools have to be conducted in trials about real occurrences; for the case of the renounced children in the schools is in the forum a case of children actually disinherited by their parents, and seeking to recover their property before the centumviri; the case of ill-treatment in the schools is in the forum a case of restoring a wife's dowry, in which the question is, through whose fault the divorce was caused; and that which in the schools is a case of insanity is in the forum a suit for appointing a guardian. 12. Under the head of advantage comes also the plea that something worse would have happened if the defendant had not acted as he did; for in a comparison of evils the less is to be regarded as a good; for example, if Mancinus should justify the treaty with Numantia on the ground that, if it had not been made, the whole Roman army would have been destroyed. This species of defense is called in Greek ἀντίστασις (antistatis), "balancing." Some rhetoricians call it comparison. 13. Such are the modes of proceeding in defense of an act; but if a defense can neither be sustained on the motive of the act itself, nor by extrinsic aid, our next course is to transfer the charge, if we find it possible, on another party. Hence translation, or "exception," has been regarded as forming one of those states which have been previously mentioned. Sometimes, then, the blame is thrown on a person, as if Gracchus, being accused of concluding the Numantine treaty, (through fear of which accusation he seems to have passed his popular laws in his tribuneship,) should say that he was sent to conclude it by his general. 14. Sometimes it is cast on some circumstance, as if a person who had been directed to do something in the will of another, and had not done it, should say that it was rendered impossible by the laws. This the Greeks call μετάστασις (metastasis), "transference." Should these modes of defense fail us, there remains excuse, founded either on ignorance or on necessity. On ignorance: as if a person should brand another as a fugitive slave, and, after he is decided by law to be a freeman, should excuse himself by saying that he did not know that he was free. On necessity: as when a soldier does not present himself at the end of his furlough, and alleges that he was hindered by floods or by sickness. 15. Chance, also, is sometimes represented as the cause of a fault. Sometimes, too, we state that we have certainly erred, but that we acted with a good intention. Of both these kinds of excuses examples are so numerous and obvious that to offer any here is unnecessary. If, again, none of those means which have been mentioned can avail us, we must see whether the charge can be extenuated. This is what is by some said to be the state of quantity. 16. But quantity, when it relates either to penalty or reward, is decided by the quality of the deed, and accordingly appears to me to fall under the state of quality, as well as quantity used with reference to number. The Greeks have the terms πηλικότης (pēlikotēs), "magnitude," and ποσότης (posotēs), "multitude;" we include both under the same term. 17. The last method of all is deprecation; a mode of address which most rhetoricians do not allow to be admissible into judicial pleadings; and Cicero himself, in his speech for Quintus Ligarius, seems to declare himself of the same opinion, when he says, I have pleaded many causes, Caesar, and even in conjunction with yourself, while regard to your public duties retained you in the forem, but I certainly never stooped so far as to say. "Forgive him, judges, he has erred, he has offended, he did not think of what he was doing; if he ever do so again," etc. 18. But in the senate, before the people or the emperor, and wherever there is power to relax the law, deprecation finds its place. It sometimes derives its greatest efficacy from the character of the accused himself, if it appear, from his previous life, that there are these three kinds of merit in him: that he has lived innocently, that he has been serviceable to others, and that he affords expectation that he will conduct himself blamelessly for the future, and make himself of some use to the world; and if, in addition, he seems to have already suffered sufficient, either from other inconveniences, from his present imminent peril, or from penitential feelings. Sometimes, too, external circumstances give weight to deprecation, as nobility, dignity and the support of relatives and friends. 19. Most dependence however is to be placed on the judge, if we can make it appear that, should he spare the accused, commendation for clemency, rather than blame for weakness, will attend him. But even in common causes, deprecation is often introduced, though not through the whole course of a cause, yet in a great portion of it; for there is frequently such a distinction as this made: Even if he had been guilty of the charge, he ought to be pardoned; a method which has often had great effect in doubtful questions; and all perorations contain some portion of entreaty. 20. Sometimes, too, the accused rests the whole of his cause on this ground; for instance, if a father has disinherited his son, and testified by an express declaration that he did so because he had formed a connection with a courtezan; for the whole question, in this case, is whether the father ought not to have pardoned such a fault, and whether the centumviri ought not to be indulgent to it. But even under strict forms of law, and in penal prosecutions, we make the distinction in pleading whether the penalty has been incurred, and whether it ought to be inflicted. However, what the rhetoricians thought, is true, that a criminal cannot be rescued from the law solely by this mode of defense. 21. With respect to rewards, two questions are to be considered; whether a party claiming a reward is deserving of any; and whether he is deserving of so great a reward as he claims. If there be two claimants, which of them is the more worthy; if several, which is the most worthy. 22. The decisions of such questions depend on the species of merit in the claimants. We have accordingly to regard not only the act of any claimant, whether as represented to the judges, or as compared with the acts of others, but also his character; for it makes a great difference whether the person who has killed a tyrant is a young or an old man; whether a man or a woman; whether a stranger or a relative; and we must consider the place, too, on several accounts; whether it were in a state accustomed to tyranny, or one that had been always free; in the citadel, or at his own house; as also the manner, whether by sword or by poison; and at what time, whether during war or in peace; when he was about to resign his power, or when he was going to attempt some new wickedness. Among the recommendations of such an act, also, are to be reckoned the loss of popularity, the risk incurred, and the difficulty surmounted. 23. In regard to liberality, likewise, it is important to consider from what sort of character it has proceeded; for it is more pleasing in a poor than a rich man; in one who confers, than in one who requites, an obligation; in a person who has children than in one who is childless. We ought to inquire, too, what degree of benefaction he has bestowed, at what time, and with what object, that is, whether with any expectations of advantage to himself. Similar points are to be considered in a similar manner. The question of quality, accordingly, calls for the greatest resources of the orator; for there is a vast field for ability, whichever side the speaker takes, and the feelings have nowhere greater influence. 24. Conjecture also frequently admits proofs adduced from extrinsic circumstances; and employs arguments derived from the nature of the subject; but to show the quality of an act is the business of eloquence; and it is here that she reigns, predominates, and triumphs. Under this head Virginius puts cases of disinheritance, insanity, ill-treatment of a wife, and those of female orphans suing for marriage with relatives. For the most part, indeed, such cases actually come under the consideration of qualities, and some writers have been found to call them questions of moral obligation. 25. But the laws respecting these matters sometimes admit also other states;18 for conjecture enters occasionally into many such questions, as when the accused parties; for instance, maintain that they have not done what is laid to their charge, or that they did it with a good intention. Examples of such cases are abundant; and those of insanity and ill-treatment depend on definition. For laws often give rise to considerations of equity, when it has to be shown for what reasons equity would not be observed by a strict adherence to the law. 26. What is not justifiable as a legal act, may be defended on the ground of equity. We have to consider, too, in how many and what cases it is unlawful for a father to disinherit his son; under what charges a suit for ill-treatment is inadmissible; and in what circumstances a son is not allowed to accuse his father of insanity. 27. Of disinheriting there are two forms the one for a crime completed, as when a son is disinherited for having committed rape or adultery; the other for a crime as it were incomplete, and still dependent on a condition, as when a son is disinherited because he continues disobedient to his father. The one is attended with rigorous proceedings on the part of the father; (for what is done is irrevocable;) the other is in some degree mild, and of an admonitory nature; for the father shows that he is more inclined to correct his son than to renounce him; but in either case the pleading on the part of the son ought to be in a submissive tone, and adapted to make due satisfaction to the father. 28. I know that those pleaders, who are ready to make attacks on fathers under cover of a figure of speech, will not allow the justice of this remark; attacks which I would not say should never be made, (for cases may occur that demand them,) but they should certainly be avoided when it is possible to proceed in any other manner. But of figures I shall treat in another book. 29. The suits of wives on account of ill-treatment are similar to those of sons in regard to disinheritance; for they require the same moderation in stating charges. As to actions on account of insanity, they are brought either on the ground of something that has taken place, or something that may or may not hereafter take place. 30. In regard to what has taken place, the pleader for the son has an open field for attack, but he should make his attack in such a way as exposes only the conduct of the father, while he should manifest pity for the father himself, as being disordered in mind from weakness of body. But in regard to that which has not taken place, and which admits of a change of purpose, he should use much solicitation and persuasion, and at last express his regret that infirmity, not immorality, obscures his reason; and the more he praises his previous goodness of character, the more easily will he prove that it has been changed by disease. 31. The accused party himself, as often as the case allows, should observe calmness in making his defense; for anger and excitement are indications of insanity. What is common to all such causes, is, that the accused parties do not always attempt a justification of their conduct, but frequently have recourse to apology and entreaties for pardon. For in family disputes it is often sufficient to secure acquittal, if it can be shown that a person has offended but once, or through mistake, or less gravely than is laid to his charge. 32. But many other kinds of suits come under the consideration of quality; as those for assault; for though the accused sometimes denies that he committed any assault, yet the decision generally depends on the nature of the act and the apparent intent. 33. Another kind of questions are those about appointing an accuser, which are called divinations; as to which Cicero, who accused Verres at the solicitation of the allies, adopts the following division: that we must consider by whom those, for whom redress is sought, would most desire the cause to be conducted, and by whom the party, who is accused, would least wish it to be conducted. 34. Such questions as the following, however, are most frequent: which of two pleaders has the stronger reasons for desiring to be the accuser; which of the two will bring the greater energy or ability to support the impeachment; which will carry it forward with greater integrity. 35. To these are to be added also questions respecting guardianship, in which it is usual to inquire whether regard ought to be had to anything else besides accounts; whether honesty only is required to be observed, and not also care as to speculations and consequences. Similar to these are cases of mismanagement of agency, or, in the forum, cases of misconduct of business; for an action may be brought for the mismanagement of anything intrusted to another. 36. Besides these, there are imagined in the schools cases of crimes not mentioned in the laws; cases in which it is either inquired whether the act in question is really not mentioned in the laws, or whether it be really a crime. Both these inquiries rarely occur in the same case. Among the Greeks there were often prosecutions, and not in imaginary cases, for misconduct on embassies; where it was a common question, on the ground of equity, whether it is at all allowable for an ambassador to act otherwise that he has been instructed; and for how long a period the accused was an ambassador; since some ambassadors terminate their office with the delivery of their message; as in the case of Heius, who, after his message was delivered, gave his testimony against Verres. But much depends on the quality of the act with which the ambassador is charged. 37. Another sort of accusation is that of having acted contrary to the interests of the state. From such accusations arise a thousand legal cavillings: as, what it is to act contrary to the interests of the state; whether the accused has injured the state; or merely neglected to serve it; and whether it was injured by him or only on his account. But in these cases, again, much depends on the nature of the supposed act. Another charge is that of ingratitude; and in cases of that kind it is inquired whether the party against whom the charge is brought really received any kindness; an inquiry which is rarely to be answered in the negative; for he who denies the receipt of a kindness which he has received, fixes the charge of ingratitude on himself. 38. Additional inquiries are, what was the extent of the kindness that he received; whether he made any return at all; whether he who has made no return ought necessarily to be convicted of ingratitude; whether he could have made any return; whether he ought to have made that return which was demanded of him; and what is his general disposition. Such as follow are of a more simple kind, as that of unjust divorce; cases of which, as regards the law, have this peculiarity, that the defense is on the side of the accuser, and the accusation on that of the defendant. 39. That, too, in which a person makes a statement to the senate of the reasons that prompt him to kill himself; where the only point of law is, whether he who desires to die, that he may withdraw himself from legal proceedings against him, ought not to be prevented from killing himself; all other considerations depend on quality. Cases are also imagined regarding wills, in which the question has reference to quality alone, as in the case which I have detailed above, where a philosopher, a physician, and an orator, contend for the fourth part of their father's property, which he had bequeathed to the most worthy of his children. It is a similar case when suitors, equal in rank, claim marriage with a female orphan relative, and when the only question is about the most deserving among the competitors. 40. But it is not my intention to go through all such sorts of cases; (for more might still be imagined;) nor are the questions that arise from them common to all alike, but are varied by circumstances. I only wonder that Flavus, whose authority is deservedly great with me, restricted the subject of quality, when he was composing a work merely for schools, within such narrow limits. 41. Quantity also, whether with respect to measure or number, falls generally, as I said, if not always, under the head of quality; but measure is sometimes determined by the equitable estimation of an action, as when it is inquired, how great an offense has been committed, or how great an obligation received, and sometimes by strict legality, as when it is disputed, under what law, a person is to be punished or rewarded. 42. Thus, if he who has insulted a youth ought to pay ten thousand sesterces (which is the penalty appointed for such an offense.) ought he, if the youth whom he has dishonored hangs himself, to be punished capitally, as being the cause of his death? In such a case, those are deceived who plead as if there were a question between two laws; for, in regard to the ten thousand sesterces there is no controversy, since they are not claimed. 43. The point to be decided is, whether the accused was the cause of the young man's death. The same sort of question, regarding measure also, resolves itself, at times, into a question of fact, as when it is disputed, whether a person, who has killed another, should be condemned to perpetual banishment, or to banishment for five years; the point for decision is, whether he committed the murder intentionally or not. 44. Such a question as the following, too, which arises from number, depends for decision on law: whether thirty rewards be due to Thrasybulus for removing thirty tyrants: and when two thieves have carried off a sum of money, whether each of them ought to restore fourfold or only double. But in such cases the act is taken into estimation, and yet the question of law: depends on quality.
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