Institutio Oratoria

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.

If none of these courses can be adopted, it will still be possible to point out that the peculiar circumstances of many trials have led to unjust decisions; hence condemnations such as that of Rutilius [*]( Publius Rutilius Rufus condemned for extortion while governor of Asia, owing to a conspiracy of the publicans against him. He went into voluntary exile at Mitylene and was highly honoured by the people of Asia. 91 B.C. ) and acquittals such as those of Clodius and Catiline. We must also ask the judges to consider the facts of the case on their merits rather than make their verdict the inevitable consequence of a verdict given by others.

When, however, we are confronted by decrees of the senate, or ordinances of emperors or magistrates, there is no remedy, unless we can make out that there is some difference, however small, between the cases, or that the same persons or persons holding the same powers have made some subsequent enactment reversing the former decision. Failing this, there will be no case for judgment.

With regard to rumour and common report, one party will call them the verdict of public opinion and the testimony of the world at large; the other will describe them as vague talk based on no sure authority, to which malignity has given birth and credulity increase, an ill to which even the most innocent of men may be exposed by the deliberate dissemination of falsehood on the part of their enemies. It will be easy for both parties to produce precedents to support their arguments.

A like situation arises in the case of evidence extracted by torture: one party will style torture an infallible method of discovering the truth, while the other will allege that it also often results in false confessions, since with some their capacity of endurance makes lying an easy thing, while with others weakness makes it a necessity. It is hardly worth my while to say more on the subject, as the speeches both of ancient and modern orators are full of this topic.