Institutio Oratoria

As regards decisions in previous courts, these fall under three heads. First, we have matters on which judgment has been given at some time or other in cases of a similar nature: these are, however, more correctly termed precedents, as for instance where a father's will has been annulled or confirmed in opposition to his sons. Secondly, there are judgments concerned with the case itself; it is from these that the name praeiudicium is derived: as examples I may cite those passed against Oppianicus [*](pro Cluent. xvii. sqq. ) or by the senate against Milo. [*](pro Mil. v.) Thirdly, there are judgments passed on the actual case, as for example in cases where the accused has been deported, [*]( Banished persons who have been accused afresh after their restoration. ) or where renewed application is made for the recognition of an individual as a free man, [*]( When a slave claimed his liberty by assertio through a representative known as assertor, his case was not disposed of once and for all by a first failure, but the claim might be presented anew. ) or in portions of cases tried in the centumviral court which come before two different panels of judges. [*]( The meaning is not clear. The Latin suggests that portions of a case might be tried by two panels sitting separately, while the case as a whole was tried by the two panels sitting conjointly. The hasta (spear) was the symbol of the centumviral court. cp. XI. i. 78. )

Such previous decisions are as a rule confirmed in two ways: by the authority of those who gave the decision and by the likeness between the two cases. As for their reversal, this can rarely be

Consequently, as regards the first two classes, we must, if possible, take refuge in some dissimilarity between the two cases, and two cases are scarcely ever alike in all their details. If, however, such a course is impossible and the case is the same as that on which the previous decision was given, we must complain of the negligence shown in the conduct of the previous case or of the weakness of the parties condemned, or of undue influence employed to corrupt the witnesses, or again of popular prejudice or ignorance which reacted unfavourably against our client; or else we must consider what has occurred since to alter the aspect of the case.