Comparison is when any action which intrinsically cannot be approved, is defended by reference to that for the sake of which it was done.  It is something of this sort:—­“A certain general, when he was blockaded by the enemy and could not escape by any possible means, made a covenant with them to leave behind his arms and his baggage, on condition of being allowed to lead away his soldiers in safety.  And he did so.  Having lost his arms and his baggage, he saved his men, beyond the hopes of any one.  He is prosecuted for treason.”  Then comes the definition of treason.  But let us consider the topic which we are at present discussing.

The charge is, “He had no business to leave behind the arms and baggage.”  The denial is, “Yes, he had.”  The question is, “Whether he had any right to do so?” The reason for doing so is, “For else he would have lost all his soldiers.”  The argument brought to invalidate this is either the conjectural one, “They would not have been lost,” or the other conjectural one, “That was not your reason for doing so.”  And from this arise the questions for decision:  “Whether they would have been lost?” and, “Whether that was the reason why he did so?” Or else, this comparative reason which we want at this minute:  “But it was better to lose his soldiers than to surrender the arms and baggage to the enemy.”  And from this arises the question for the decision of the judges:  “As all the soldiers must have been lost unless they had come into this covenant, whether it was better to lose the soldiers, or to agree to these conditions?”

It will be proper to deal with this kind of cause by reference to these topics, and to employ the principles of, and rules for the other statements of cases also.  And especially to employ conjectures for the purpose of invalidating that which those who are accused will compare with the act which is alleged against them as a crime.  And that will be done if either that result which the advocates for the defence say would have happened unless that action had been performed which is now brought before the court, be denied to have been likely to ensue; or if it can be proved that it was done with a different object and in a different manner from that stated by the man who is on his trial.  The confirmation of that statement, and also the argument used by the opposite party to invalidate it, must both be derived from the conjectural statement of the case.  But if the accused person is brought before the court, because of his action coming under the name of some particular crime, (as is the case in this instance, for the man is prosecuted for treason), it will be desirable to employ a definition and the rules for a definition.

XXV.  And this usually takes place in this kind of examination, so that it is desirable to employ both conjecture and definition.  But if any other kind of inquiry arises, it will be allowable on similar principles to transfer to it the rules for that kind of inquiry.  For the accuser must of all things take pains to invalidate, by as many reasons as possible, the very fact on account of which the person on his trial thinks that it is granted to him that he was right.  And it is easy to do so, if he attempts to overturn that argument by as many statements of the case as he can employ.