[8]
“Yes,
for the sentence is a sentence of infamy.” “Yes, if it arises from an
infamous action.” See, then, how iniquitously it happens, that because an action is
infamous, therefore a discreditable reputation should attach to it, but that a scandalous
action is not to be punished, because, if it were, it would involve a loss of reputation. It
is just as if any judex or recuperator were to say to me, “Why, you might have tried
it in an inferior court,—you might have obtained your rights by an easier and more
convenient process; therefore, either change your form of action, or else do not press me to
give my decision.” And yet he would appear more timid than a bold judge ought to
appear, or more covetous than it is right for a wise judge to be, if he were either to
prescribe to me how I should follow up my own rights, or if he were to be afraid himself to
give his decision in a matter which was brought before him. In truth, if the praetor, who
allows the trials to proceed, never prescribes to a claimant what form of action he wishes him
to adopt, consider how scandalous a thing it must be, when the matter is so far settled, for a
judge to ask what might have been done, or what can be done now, and not what has been done.
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