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Book 5 - Chapter 2
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Previous judgments. The authority of those who deliver them to be considered. Similitude in cases; how to be refuted.
1. AS to precognitions, the whole matter of them ranges itself under three heads: first, cases which have been already decided under similar circumstances, and which may more properly be termed precedents, as about wills of fathers which have been annulled or ratified in opposition to their children; secondly, judgments relative to the cause itself (from which also is derived the name), such as those which are said to have been pronounced upon Oppianicus and those of the senate upon Milo; or, thirdly, when sentence has already been given on the same affair, as in the case of persons that have been sent out of the country, of appeals in regard to personal liberty, and of divisions in the judgments of the centumviri, when they have been separated into two parties. 2. Precognitions are established chiefly by two things: the authority of those who have given judgment and the similitude of the cases in question. As for the annulling of them, it is rarely obtained by reproaching the judges, unless there be a manifest error in them, for each of the judges wishes the sentence of another to stand firm, remembering that he himself is also to pronounce a sentence and being unwilling to offer a precedent which may recoil upon himself. 3. The pleader must have recourse, therefore, in the first two cases, if the matter allow, to the discovery of some dissimilarity in the cases (and there is scarcely one exactly like another in all particulars) or, if that course be impossible or the cause be the same, some negligence in the pleadings must be exposed, or we must complain of the weakness of the parties against whom judgment was given, or influence that corrupted the witnesses, or of public odium, or ignorance, or we must find something that has since occurred to affect the cause. 4. If none of these allegations be possible, we may observe that many motives on trials have led to unjust sentences, and that through such influence, Rutilius was condemned, and Clodius and Catiline acquitted. The judges may also be solicited rather to examine the question themselves than to rest their faith on the verdict of others. 5. But against decrees of the senate, and the ordinances of princes or magistrates, there is no remedy, unless some difference, however small, be discovered in the cases, or some subsequent determination of the same persons or personages of the same dignity, at variance with the former. If nothing of the kind be discoverable, there will be no case for judgment.
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