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such as agree to the former, namely, civil causes, will sufficiently appear.
And I shall begin with the conjectural state, which comes first in the order of inquiry. When therefore the accused person denies the fact, there are three things which the prosecutor has to consider: Whether he would have done it, whether he could, and whether he did it. And hence arise three topics; from the Will, the Power, and the Signs, or circumstances which attended the action. The affections of the mind discover the Will; as, passion, an old grudge, a desire of revenge, a resentment of an injury, and the like. Therefore Cicero argues from Clodius's hatred of Milo, that he designed his death, and thence infers that he was the aggressor in the combat between them, wherein Clodius was killed. This is what he principally endeavours to prove, and comes properly under this state: for Milo owned that he killed him, but alleged that he did it in his own defence. So that in regard to this point, which of them assaulted the other, the charge was mutual. The prospect of advantage may also be alleged to the same purpose. Hence it is said of L. Cassius, that whenever he sat as judge in a case of murder, he used to advise and move the court to examine to whom the advantage arose from the death of the deceased. And Cicero puts this to Antony concerning the death of Cæsar. If any one, says he, should bring you upon trial, and use that saying of Cassius, cui bono? who got by it? look to it, I beseech you, that you are not confounded. To these arguments may be added hope of impunity, taken either from the circumstances of the accused person, or of him who suffered the injury. For per
sons who have the advantage of interest, friends, power, or money, are apt to think they may easily escape; as likewise such who have formerly committed other crimes with impunity. Thus Cicero represents Clodius as hardened in vice, and above all the restraint of laws, from having so often escaped punishment upon committing the highest crimes. On the contrary, such a confidence is sometimes raised from the condition of the injured party, if he is indigent, obscure, timorous, or destitute of friends; much more if he has an ili reputation, or is loaded with popular hatred and resentment. It was this presumption of the obscurity of Roscius, who lived in the country, and of his want of interest at Rome, which encouraged his accusers to charge him with killing his father, as Cicero shows in his defence of him. Lastly, the temper of a person, his views, and manner of life, are considerations of great moment in this matter. For per. sons of bad morals, and such as are addicted to vice. are easily thought capable of committing any wickedness. Hence Sallust argues from the evil disposition and vicious life of Catiline, that he affected to raise himself upon the ruins of his country. The second head is the power of doing a thing; and there are three things which relate to this, the place, the time, and opportunity. As, if a crime is said to have been committed in a private place where no other person was present; or in the night; or when the injured person was unable to provide for his defence. Under this head may likewise be brought in the circumstances of the persons; as if the accused person was stronger, and so able to overpower the other; or more active, and so could easily make his escape. Cicero makes
great use of this topic in the case of Milo, and shows that Clodius had all the advantages of place, time, and opportunity, to execute his design of killing him. The third head are the signs, and circumstances which either preceded, accompanied, or followed the commission of the fact. So threats, or the accused person being seen at or near the place before the fact was committed, are circumstances that may probably precede murder; fighting, crying out, bloodshed, are such as accompany it; paleness, trembling, inconsistent answers, hesitation, or faltering of speech, something found upon the person accused which belonged to the deceased, are as such as follow. Thus Cicero proves that Clodius had threatened the death of Milo, and given out that he should not live above three days at the furthest. These arguments, taken from conjectures, are called presumptions, which, though they do not directly prove that the accused person committed the fact with which he is charged, yet when being laid together they appeared very strong, sentence by the Roman law might sometimes be given upon them to convict him.
These are the topics from which the prosecutor takes his arguments. Now the business of the defendant is to invalidate these. Therefore such as are brought from the will, he either endeavours to show are not true, or so weak as to merit very little regard. And he refutes those taken from the power, by proving that he wanted either opportunity or ability: as, if he can show that neither the place nor time, insisted on, was at all proper, or that he was then in another place. In like manner he will endeavour to confute the circumstances, if they cannot directly be denied, by show
ing that they are not such as do necessarily accompany the fact, but might have proceeded from other causes, though nothing of what is alleged had been committed; and it will be of great service to assign. some other probable cause. But sometimes the defendant does not only deny that he did the fact, but charges it upon another. Thus Cicero, in his oration for Roscius, not only defends him from each of these three heads, but likewise charges the fact upon his ac
I come now to the definitive state, which is principally concerned in defining and fixing the name proper to the fact. Though orators seldom make use of exact definitions, but commonly choose larger descriptions, taken from various properties of the subject or thing described.
The heads of argument in this state are much the same to both parties. For each of them defines the fact his own way, and endeavours to refute the other's definition. We may illustrate this by an example from Quintilian: A person is accused of socrilege, for stealing money out of a temple, which belonged to a private person. The fact is owned, but the question is, Whether it be properly sacrilege? The prosecutor calls it so, because it was taken out of a temple. But since the money belonged to a private person, the defendant denies it to be sacrilege, and says it is only simple theft. Now the reason why the defendant uses this plea, and insists upon the distinction, is, because by the Roman law the penalty of the theft was only four times the value of what was stolen; whereas sacrilege was punished with death. The prosecutor then forms his definition agreeably to his charge,
and says: To steal any thing out of a sacred place is sacrilege. But the defendant excepts against this definition as defective; and urges that it does not amount to sacrilege unless the thing stolen was likewise sacred. And this case might once perhaps have been a matter of controversy, since we find it expressly determined in the Pandects, that, An action of sacrilege should not lie, but only of theft, against any who should steal the goods of private persons deposited in a temple.
The second thing is the proof brought by each party to support his definition, as in the example given us by Cicero, of one, who carried his cause by bribery, and was afterwards prosecuted again upon an action of prevarication. Now if the defendant was cast upon this action, he was by the Roman law subjected to the penalty of the former prosecution. Here the prosecutor defines prevarication to be, any bribery or corruption in the defendant, with a design to pervert justice. The defendant therefore, on the other hand, restrains it to bribing only the prosecutor,
And if this latter sense agree better with the common acceptation of the word, the prosecutor in the third place pleads the intention of the law, which was to comprehend all bribery in judicial matters under the term of prevarication. In answer to which the defendant endeavours to show, either from the head of contràries, that a real prosecutor and a prevaricator are used as opposite terms in the law, or from the etymology of the word, that a prevaricator denotes one who pretends to appear in the prosecution of a cause, while in reality he favours the contrary side; and consequently that money given for this end only, can, in the sense of the law, be called prevarication.