Institutio Oratoria

There is another form of defence based on an appeal to the motives of the act which is the opposite of that which I have just described It consists not in defending the act per se, as we do when we employ the absolute defence, nor in opposing another act to it, but in appealing to the interests of the State, of a number of persons, of our opponent himself or finally at times of ourselves, provided always that the act in question is such as we might lawfully do in our own interests. If, however, the accuser is a stranger and insists on the letter of the law, this form of defence will invariably be useless, though it may

For example, in a suit concerned with the question of disinheritance a father may, without reflecting on himself, say to his sons that his act was of importance to his own interests, and the same plea may be urged by a husband accused of cruelty by his wile or a son who alleges that his father is insane. But in such cases the position of the man who seeks to avoid loss is stronger than that of him who aims at positive advantage.

Precisely similar methods are also employed in questions that occur in real life. For the scholastic themes concerned with the disowning of children are on exactly the same footing as the cases of sons disinherited by their parents which are tried in the public courts, or of those claims for the recovery of property which are tried in the centum viral court: themes dealing with cruelty find an actual parallel in those cases in which the wife claims the restoration of her dowry, and the question is whose fault it was that led to the divorce: and again the theme where the son accuses his father of madness has its analogy in cases where a suit is brought for the appointment of a guardian.

Under the same heading as the appeal to public or personal interest comes the plea that the act in question prevented the occurrence of something worse. For in a comparison of evils the lesser evil must be regarded as a positive good: for example, Mancinus may defend the treaty made with the Numantines on the ground that it saved the army from annihilation. This form of defence is called ἀντίστασις by the Greeks, while we style it defence by comparison.

Such are the methods by which we may

At times, on the other hand, the blame may be shifted to some thing: for instance, a person who has failed to comply with some testamentary injunction may plead that the laws forbade such compliance. The Greek term for such shifting is μετάστασις. If these methods of defence are out of the question, we must take refuge in making excuses. We may plead ignorance. For example, if a man has branded a runaway slave and the latter is subsequently adjudged to be a free man, he may deny that he was cognisant of the truth. Or we may plead necessity; for instance, if a soldier overstays his leave, he may plead that his return was delayed by floods or ill health.