m guilt, and that under his name
the common powerlessness of mankind is sought to be convicted. Then,
too, he will say that nothing can be more scandalous than for a man
who is free from guilt, not also to be free from punishment. But the
common topics for the prosecutor to employ are these, one resting on
the confession of the accused person, and the other pointing out what
great licence for the violation of the law will follow, if it is once
laid down that the thing to be inquired into is not the action but
the cause of the action. The common topics for the advocate for the
defence to employ are, a complaint of that calamity which has taken
place by no fault of his, but in consequence of some overruling power,
and a complaint also of the power of fortune and the powerless
state of men, and an entreaty that the judges should consider his
intentions, and not the result. And in the employment of all these
topics it will be desirable that there should be inserted a complaint
of his own unhappy condition, and indignation at the cruelty of his
adversaries.

And no one ought to marvel, if in these or other instances he sees
a dispute concerning the letter of the law added to the rest of the
discussion. And we shall have hereafter to speak of this subject
separately, because some kinds of causes will have to be considered by
themselves, and with reference to their own independent merits,
and some connect with themselves some other kind of question also.
Wherefore, when everything is cleared up, it will not be difficult to
transfer to each cause whatever is suitable to that particular kind of
inquiry, as in all these instances of admission of the fact, there is
involved that dispute as to the law, which is called the question as
to the letter and spirit of the law. But as we were speaking of the
admission of the fact we gave rules for it. But in another place we
will discuss the letter and the spirit of the law. At present we will
limit our consideration to the other division of the admission of the
fact.

XXXIV. Deprecation is when it is not attempted to defend the action
in question, but entreaties to be pardoned are employed. This kind of
topic can hardly be approved of in a court of justice, because, when
the offence is admitted, it is difficult to prevail on the man who
is bound to be the chastiser of offences to pardon it. So that it is
allowable to employ that kind of address only when you do not rest the
whole cause