XXVIII But the advocate for the defence will invalidate what is urged by means of other statements from those topics which have already been given.  But the demurrer itself he will prove first of all, by dwelling on the guilt and audacity of the man to whom he imputes the crime, and by bringing it before the eyes of the judges with as much indignation as possible if the case admits of it, and also with vehement complaint, and afterwards by proving that the accused person chastised the offence more lightly than the offender deserved, by comparing the punishment inflicted with the injury done.  In the next place, it will be desirable to invalidate by opposite arguments those topics which are handled by the prosecutor in such a way that they are capable of being refuted and retorted, of which kind are the three last topics which I have mentioned.  But that most vehement attack of the prosecutors, by which they attempt to prove that irregularity will be introduced into all the courts of justice if power is given to any man of inflicting punishment on a person who has not been convicted, will have its force much weakened, first of all, if the injury be shown to be such as appears intolerable not only to a good man but absolutely to any freeman, and in the next place to be so manifest that it could not have been denied even by the person who had done it, and moreover, of such a kind that the person who did chastise it was the person who above all others was bound to chastise it.  So that it was not so proper nor so honourable for that matter to be brought before a court of justice as for it to be chastised in that manner in which, and by that person by whom it was chastised, and lastly, that the case was so notorious that there was no occasion whatever for a judicial investigation into it.  And here it will be proper to show, by arguments and by other similar means, that there are very many things so atrocious and so notorious, that it is not only not necessary, but that it is not even desirable to wait for the slow proceedings of a judicial trial.

There is a common topic for an accuser to employ against a person, who, when he cannot deny the fact of which he is accused, still derives some hope from his attempt to show that irregularity will be introduced into all courts of justice by such proceedings.  And here there will come in the demonstration of the usefulness of judicial proceedings, and the complaint of the misfortune of that person who has been punished without being condemned; and the indignation to be expressed against the audacity and cruelty of the man who has inflicted the punishment.  There is also a topic for the advocate for the defence to employ, in complaining of the audacity of the person whom he chastised; and in urging that the case ought to be judged of, not by the name of the action itself, but with reference to the intention of the person who committed it, and the cause for which, and the time at which it was committed.  And in pointing out what great mischief will ensue either from the injurious conduct, or the wickedness of some one, unless such excessive and undisguised audacity were chastised by him whose reputation, or parents, or children, or something else which either necessarily is, or at least ought to be dear to every one, is affected, by such conduct.