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Top. XXV. ‘Another, to consider whether it ever was, or is still, possible to improve (do better, more advantageously, under more favourable conditions,) in any other way (by following any other course, by any alteration of time, place, conditions, circumstances), any (bad) advice (which the counsellor is charged with having given, Vict.), or anything which he is doing, or ever has done (anything wrong that he is either meditating or has committed), (you infer) that, if this be not so (if he has not taken advantage of these possible improvements, which would have contributed to the success of his advice or design), he is not guilty at all; because (no one would ever neglect such opportunities if he had it in his power to avail himself of them) no one, intentionally and with full knowledge, ever prefers the worse to the better.’ It seems from the omission of συμβουλεύει and πράττει, and the prominence given to πέπραχεν the past act in the explanation of the reason, that although this topic may be applied to deliberative oratory, it is much more usual and useful in defending yourself or a client in a court of law. You say, My client cannot be guilty of the act with which you charge him, for he could have done it much better, would be much more likely to have been successful, in some other way; at some other time, and place, or under other circumstances: therefore, since he has not chosen to do the thing in the best way that he could, and at the same time had full knowledge of what was the best way of doing it, it is plain that he has not done it now under less favourable circumstances. This is excellently illustrated by Victorius from another passage of Cic. pro Mil. XVI 41. In retorting upon Clodius the charge of lying in wait to assassinate, he first enumerates several favourable opportunities which Milo had previously neglected to avail himself of, and asks whether it was likely that, having acted thus, he should now choose an occasion when time and circumstances were so much less favourable, to carry out such a design: Quem igitur cum omnium gratia noluit (occidere), hunc voluit cum aliquorum querela? quem iure, quem loco, quem tempore, quem impune non est ausus, hunc iniuria, iniquo loco, alieno tempore, periculo capitis, non dubitavit occidere?

‘But there is a fallacy in this: for it often does not become clear till afterwards (after the commission of the act) how the thing might have been better done, whereas before it was anything but clear’.

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