Institutio Oratoria

In such cases the defence must always come first for three reasons. In the first place, we naturally prefer to secure our own safety than to injure our opponent, while secondly, our accusation will carry greater weight if we have first proved our own innocence, and thirdly, we shall thus secure a double line of defence. For the man who says,

I did not kill him,

You killed him,

You killed him,

I did not kill him.

Further, such cases consist of comparison, which may be effected in different ways. For we may either compare our case in its entirety with that of our adversary, or we may compare individual arguments. The choice between these two methods can only be determined by the requirements of the case. For example, in the pro Vareno, Cicero, in dealing with the first charge, compares the individual arguments: for it would have been rash in connexion with the second charge to compare the position of a stranger with that of a mother. [*]( The pro Vareno being lost, it is impossible to say to what this refers, and for the same reason Halm's conjecture must be regarded as quite uncertain. ) It is therefore best, if possible, to refute argument by individual argument: if, however, our individual arguments are weak, we shall try to secure success by comparison of case with case as a whole.

But whether the case is one of mutual accusation, or the accused throws the guilt upon his opponent without making any formal accusation (as Roscius [*]( Roscius Amerinus, accused of parricide and defended by Cicero. ) did without indicting

The class of case last mentioned by me is, however, not merely of frequent occurrence in the schools, but sometimes actually occurs in the courts. For example, the sole question in the case of Naevius of Arpinum was whether he threw his wife out of the window or she threw herself. My speech in this case is the only one of all my pleadings that I have so far published, and I admit that I was led to do so merely by a youthful desire for glory. For the other speeches which circulate as mine have little in them that actually fell from my lips, having been corrupted by the carelessness of the shorthand-writers who took them down with a view to making money out of them.

There is also another type of conjectural case which, though it involves two questions, is different from cases of mutual accusation; such cases are concerned with rewards and may be illustrated by the following controversial theme.

A tyrant, suspecting that his physician had given him poison, tortured him and, since he persisted in denying that he had done so, sent for a second physician. The latter asserted that poison had been administered, but that he would provide an antidote; he gave him a draught: the tyrant drank it and died. Both physicians claim a reward for slaying the tyrant.

There is yet another type of case which, though not one of mutual accusation, is treated in the same way: I mean a case in which we enquire, without accusing anyone, which of two acts has taken place. For both parties make and defend their own statement of the case. Thus in the suit concerning the estate of Urbinia [*](cp. i. 11. and VII. ii. 4. ) the claimant says that Clusinius Figulus, the son of Urbinia, on the defeat of the army in which he was serving, fled and after various misfortunes, being even even kept in captivity by the king, at length returned to Italy and his own home in the Marrucine district, where he was recognised. To this Pollio replies that he had been a slave to two masters at Pisaurum, that he had practised medicine, and finally, after receiving his freedom, inserted himself into a gang of slaves who were for sale [*]( For another meaning of venalis, newly-bought, see VIII. ii. 8. ) and was at his own request purchased by himself.