All argumentation is reprehended when anything, whether it be one

thing only, or more than one of those positions which are assumed, is

not granted, or if, though they are granted, it is denied that the

conclusion legitimately follows from them, or if it is shown that the

very kind of argumentation is faulty, or if in opposition to one

form and reliable sort of argumentation another is employed which is

equally firm and convincing. Something of those positions which have

been assumed is not granted when either that thing which the opposite

party says is credible is denied to be such, or when what they think

admits of a comparison with the present case is shown to be unlike

it, or when what has been already decided is either turned aside

as referring to something else, or is impeached as having been

erroneously decided, or when that which the opposite party have called

a proof is denied to be such, or if the summing up is denied in

some one point or in every particular, or if it is shown that the

enumeration of matters stated and proved is incorrect, or if the

simple conclusion is proved to contain something false. For everything

which is assumed for the purpose of arguing on, whether as necessary

or as only probable, must inevitably be assumed from these topics, as

we have already pointed out.

XLIII. What is assumed as something credible is invalidated, if it is

either manifestly false, in this way:--"There is the one who would not

prefer riches to wisdom." Or on the opposite side something credible

may be brought against it, in this manner--"Who is there who is not

more desirous of doing his duty than of acquiring money?" Or it may be

utterly and absolutely incredible, as if some one, who it is notorious

is a miser, were to say that he had neglected the acquisition of some

large sum of money for the sake of performing some inconsiderable

duty. Or if that which happens in some circumstances, and to some

persons, were asserted to happen habitually in all cases and to

everybody, in this way.--'Those men who are poor have a greater regard

for money than for duty.' 'It is very natural that a murder should

have been committed in that which is a desert place.' How could a man

be murdered in a much frequented place? Or if a thing which is done

seldom is asserted never to be done at all, as Curius asserts in his

speech in behalf of Fulvius, where he says, "No one can fall in love

at a single glance, or as he is passing by."

But that which is assumed as a proof may be invalidated by a

recurrence to the same topics as those by which it is sought to be

established. For in a proof the first thing to be shown is that it is

true, and in the next place, that it is one especially affecting the

matter which is under discussion, as blood is a proof of murder in the

next place, that that has been done which ought not to have been, or

that has not been done which ought to have been and last of all, that

the person accused was acquainted with the law and usages affecting

the matter which is the subject of inquiry. For all these circumstance

are matters requiring proof, and we will explain them more carefully,

when we come to speak about conjectural statements separately.

Therefore, each of these points in a reprehension of the statement of

the adversary must be laboured, and it must be shown either that such

and such a thing is no proof, or that it is an unimportant proof, or

that it is favourable to oneself rather than to the adversary, or that

it is altogether erroneously alleged, or that it may be diverted so as

to give grounds to an entirely different suspicion.

XLIV. But when anything is alleged as a proper object of comparison,

since that is a class of argument which turns principally on

resemblance, in reprehending the adversity it will be advisable to

deny that there is any resemblance at all to the case with which it is

attempted to institute the comparison. And that may be done if it

be proved to be different in genus or in nature, or in power, or

in magnitude, or in time or place, or with reference to the person

affected, or to the opinions generally entertained of it. And if it

be shown also in what classification that which is brought forward on

account of the alleged resemblance and in what place too the whole

genus with reference to which it is brought forward, ought to be

placed. After that it will be pointed out how the one thing differs

from the other, from which we shall proceed to show that a different

opinion ought to be entertained of that which is brought forward by

way of comparison, and of that to which it is sought to be compared.

And this sort of argument we especially require when that particular

argumentation which is carried on by means of induction is to be

reprehended. If any previous decision be alleged, since these are the

topics by which it is principally established, the praise of those who

have delivered such decision, the resemblance of the matter which is

at present under discussion to that which has already been the subject

of the decision referred to, that not only the decision is not found

fault with because it is mentioned, but that it is approved of by

every one, and by showing too, that the case which has been already

decided is a more difficult and a more important one than that which

is under consideration now. It will be desirable also to invalidate

it by arguments drawn from the contrary topics, if either truth or

probability will allow us to do so. And it will be necessary to take

care and notice whether the matter which has been decided has any real

connexion with that which is the present subject of discussion, and

we must also take care that no case is adduced in which any error has

been committed, so that it should seem that we are passing judgment on

the man himself who has delivered the decision referred to.

It is desirable further to take care that they do not bring forward

some solitary or unusual decision when there have been many decisions

given the other way. For by such means as this the authority of the

decision alleged can be best invalidated. And it is desirable that

those arguments which are assumed as probable should be handled in

this way.

XLV. But those which are brought forward as necessary, if they are

only imitations of a necessary kind of argumentation and are not so in

reality, may be reprehended in this manner. In the first place, the

summing up, which ought to take away the force of the admissions you

have made if it be a correct one, will never be reprehended, if it

be an incorrect one it may be attacked by two methods, either by

conversion or by the invalidating one portion of it. By conversion, in

this way.

"For if the man be modest, why should you

Attack so good a man? And if his heart

And face be seats of shameless impudence,

Then what avails your accusation

Of one who views all fame with careless eye?"

In this case, whether you say that he is a modest man or that he is

not, he thinks that the unavoidable inference is that you should not

accuse him. But that may be reprehended by conversion thus--"But

indeed, he ought to be accused, for if he be modest, accuse him, for

he will not treat your imputations against him lightly, but if he has

a shameless disposition of mind, still accuse him, for in that case he

is not a respectable man."

And again, the argument may be reprehended by an invalidating of

the other part of it--"But if he is a modest man, when he has

been corrected by your accusation he will abandon his error." An

enumeration of particulars is understood to be faulty if we either say

that something has been passed over which we are willing to admit, or

if some weak point has been included in it which can be contradicted,

or if there is no reason why we may not honestly admit it. Something

is passed over in such an enumeration as this.--"Since you have

that horse, you must either have bought it, or have acquired it by

inheritance, or have received it as a gift, or he must have been born

on your estate, or, if none of these alternatives of the case, you

must have stolen it. But you did not buy it, nor did it come to you by

inheritance, nor was it foaled on your estate, nor was it given to you

as a present, therefore you must certainly have stolen it."

This enumeration is fairly reprehended, if it can be alleged that the

horse was taken from the enemy, as that description of booty is not

sold. And if that be alleged, the enumeration is disproved, since that

matter has been stated which was passed over in such enumeration.

XLVI. But it will also be reprehended in another manner, if any

contradictory statement is advanced; that is to say, just by way of

example, if, to continue arguing from the previous case, it can be

shown that the horse did come to one by inheritance, or if it should

not be discreditable to admit the last alternative, as if a person,

when his adversaries said,--"You were either laying an ambush against

the owner, or you were influenced by a friend, or you were carried

away by covetousness," were to confess that he was complying with the

entreaties of his friend.

But a simple conclusion is reprehended if that which follows does not

appear of necessity to cohere with that which has gone before. For

this very proposition, "If he breathes, he is alive," "If it is day,

it is light," is a proposition of such a nature that the latter

statement appears of necessity to cohere with the preceding one. But

this inference, "If she is his mother, she loves him," "If he has ever

done wrong, he will never be chastised," ought to be reprehended in

such a manner as to show that the latter proposition does not of

necessity cohere with the former.

Inferences of this kind, and all other unavoidable conclusions, and

indeed all argumentation whatever, and its reprehension too, contains

some greater power and has a more extensive operation than is here

explained. But the knowledge of this system is such that it cannot

be added to any portion of this art, not that it does of itself

separately stand in need of a long time, and of deep and arduous

consideration. Wherefore those things shall be explained by us at

another time, and when we are dealing with another subject, if

opportunity be afforded us. At present we ought to be contented with

these precepts of the rhetoricians given for the use of orators. When,

therefore, any one of these points which are assumed is not granted,

the whole statement is invalidated by these means.

XLVII. But when, though these things are admitted, a conclusion is

not derived from them, we must consider these points too, whether any

other conclusion is obtained, or whether anything else is meant, in

this way,--If, when any one says that he is gone to the army, and any

one chooses to use this mode of arguing against him, "If you had come

to the army you would have been seen by the military tribunes, but you

were not seen by them, therefore you did not go to the army." On this

case, when you have admitted the proposition, and the assumption, you

have got to invalidate the conclusion, for some other inference has

been drawn, and not the one which was inevitable.

And at present, indeed, in order that the case might be more easily

understood, we have brought forward an example pregnant with a

manifest and an enormous error; but it often happens that an error

when stated obscurely is taken for a truth; when either you do not

recollect exactly what admissions you have made, or perhaps you have

granted something as certain which is extremely doubtful. If you have

granted something which is doubtful on that side of the question which

you yourself understand, then if the adversary should wish to adapt

that part to the other part by means of inference, it will be

desirable to show, not from the admission which you have made, but

from what he has assumed, that an inference is really established; in

this manner:--"If you are in need of money, you have not got money. If

you have not got money, you are poor. But you are in need of money,

for if it were not so you would not pay attention to commerce;

therefore you are poor." This is refuted in this way:--"When you said,

if you are in need of money you have not got money, I understood you

to mean, 'If you are in need of money from poverty, then you have

not got money;' and therefore I admitted the argument. But when you

assumed, 'But you are in need of money,' I understood you to mean,

'But you wish to have more money.' But from these admissions this

result, 'Therefore you are poor,' does not follow. But it would follow

if I had made this admission to you in the first instance, that any

one who wished to have more money, had no money at all."

XLVIII. But many often think that you have forgotten what admissions

you made, and therefore an inference which does not follow

legitimately is introduced into the summing up as if it did follow; in

this way:--"If the inheritance came to him, it is probable that he

was murdered by him." Then they prove this at considerable length.

Afterwards they assume, But the inheritance did come to him. Then the

inference is deduced; Therefore he did murder him. But that does

not necessarily follow from what they had assumed. Wherefore it is

necessary to take great care to notice both what is assumed, and what

necessarily follows from those assumptions. But the whole description

of argumentation will be proved to be faulty on these accounts; if

either there is any defect in the argumentation itself, or if it is

not adapted to the original intention. And there will be a defect in

the argumentation itself, if the whole of it is entirely false, or

common, or ordinary, or trifling, or made up of remote suppositions;

if the definition contained in it be faulty, if it be controverted,

if it be too evident, if it be one which is not admitted, or

discreditable, or objected to, or contrary, or inconstant, or adverse

to one's object.

That is false in which there is evidently a lie; in this

manner:--"That man cannot be wise who neglects money. But Socrates

neglected money; therefore he was not wise." That is common which does

not make more in favour of our adversaries than of ourselves; in

this manner:--"Therefore, O judges, I have summed up in a few words,

because I had truth on my side." That is ordinary which, if the

admission be now made, can be transferred also to some other case

which is not easily proved; in this manner:--"If he had not truth on

his side, O judges, he would never have risked committing himself to

your decision." That is trifling which is either uttered after the

proposition, in this way:--"If it had occurred to him, he would not

have done so;" or if a man wishes to conceal a matter manifestly

disgraceful under a trifling defence, in this manner:--

"Then when all sought your favour, when your hand

Wielded a mighty sceptre, I forsook you;

But now when all fly from you, I prepare

Alone, despising danger, to restore you."

XLIX. That is remote which is sought to a superfluous extent, in this

manner:--"But if Publius Scipio had not given his daughter Cornelia in

marriage to Tiberius Gracchus, and if he had not had the two Gracchi

by her, such terrible seditions would never have arisen. So that all

this distress appears attributable to Scipio." And like this is that

celebrated complaint--

"Oh that the woodman's axe had spared the pine

That long on Pelion's lofty summit grew."[57]

For the cause is sought further back than is at all necessary. That

is a bad definition, when it either describes common things in this

manner:--"He is seditious who is a bad and useless citizen;" for this

does not describe the character of a seditious man more than of an

ambitious one,--of a calumniator, than of any wicked man whatever,

in short. Or when it says anything which is false; in this

manner:--"Wisdom is a knowledge how to acquire money." Or when it

contains something which is neither dignified nor important; in this

way:--"Folly is a desire of inordinate glory." That, indeed, is one

folly; but this is defining folly by a species, not by its whole

genus. It is controvertible when a doubtful cause is alleged, for the

sake of proving a doubtful point; in this manner:--

"See how the gods who rule the realms above

And shades below, and all their motions sway,

Themselves are all in tranquil concord found."

That is self-evident, about which there is no dispute at all. As if

any one while accusing Orestes were to make it quite plain that his

mother had been put to death by him. That is a disputable definition,

when the very thing which we are amplifying is a matter in dispute.

As if any one, while accusing Ulysses, were to dwell on this point

particularly, that it is a scandalous thing that the bravest of

men, Ajax, should have been slain by a most inactive man. That is

discreditable which either with respect to the place in which it is

spoken, or to the man who utters it, or to the time at which it is

uttered, or to those who hear it, or to the matter which is the

subject of discussion, appears scandalous on account of the subject

being a discreditable one. That is an offensive one, which offends the

inclinations of those who hear it; as if any one were to praise the

judiciary law of Caepio before the Roman knights, who are themselves

desirous of acting as judges.

L. That is a contrary definition, which is laid down in opposition to

the actions which those who are the hearers of the speech have done;

as if any one were to be speaking before Alexander the Great against

some stormer of a city, and were to say that nothing was more inhuman

than to destroy cities, when Alexander himself had destroyed Thebes.

That is an inconsistent one, which is asserted by the same man in

different senses concerning the same case; as if any one, after he has

said that the man who has virtue is in need of nothing whatever for

the purpose of living well, were afterwards to deny that any one could

live well without good health; or that he would stand by a friend in

difficulty out of good-will towards him, for that then he would hope

that some good would accrue to himself by so doing.

That is an adverse definition, which in some particular is an actual

injury to one's own cause; as if any one were to extol the power, and

resources, and prosperity of the enemy, while encouraging his own

soldiers to fight. If some part of the argumentation is not adapted to

the object which is or ought to be proposed to one, it will be found

to be owing to some one of these defects. If a man has promised a

great many points and proved only a few; or if, when he is bound to

prove the whole, he speaks only of some portion; in this way:--The

race of women is avaricious; for Eriphyle sold the life of her husband

for gold. Or if he does not speak in defence of that particular point

which is urged in accusation; as if any one when accused of corruption

were to defend himself by the statement that he was brave; as Amphion

does in Euripides, and so too in Pacuvius, who, when his musical

knowledge is found fault with, praises his knowledge of philosophy.

Or if a part of conduct be found fault with on account of the bad

character of the man; as if any one were to blame learning on account

of the vices of some learned men. Or if any one while wishing to

praise somebody were to speak of his good fortune, and not of his

virtue; or if any one were to compare one thing with another in such

a manner as to think that he was not praising the one unless he was

blaming the other; or if he were to praise the one in such a manner as

to omit all mention of the other.

Or if, when an inquiry is being carried on respecting one particular

point, the speech is addressed to common topics; as if any one, while

men are deliberating whether war shall be waged or not, were to devote

himself wholly to the praises of peace, and not to proving that that

particular war is inexpedient. Or if a false reason for anything be

alleged, in this way:--Money is good because it is the thing which,

above all others, makes life happy. Or if one is alleged which is

invalid, as Plautus says:--

"Sure to reprove a friend for evident faults

Is but a thankless office; still 'tis useful,

And wholesome for a youth of such an age,

And so this day I will reprove my friend,

Whose fault is palpable."--_Plautus, Frinummus_, Act i. sc. 2,

l.1.

Or in this manner, if a man were to say, "Avarice is the greatest

evil; for the desire of money causes great distress to numbers of

people." Or it is unsuitable, in this manner:--"Friendship is the

greatest good for there are many pleasures in friendship."

LI. The fourth manner of reprehension was stated to be that by which,

in opposition to a solid argumentation, one equally, or still more

solid, has been advanced. And this kind of argumentation is especially

employed in deliberations when we admit that something which is said

in opposition to us is reasonable, but still prove that that conduct

which we are defending is necessary; or when we confess that the line

of conduct which they are advocating is useful, and prove that what

we ourselves are contending for is honourable. And we have thought it

necessary to say thus much about reprehension; now we will lay down

some rules respecting the conclusion.

Hermagoras places digression next in order, and then the ultimate

conclusion. But in this digression he considers it proper to introduce

some inferential topics, unconnected with the cause and with the

decision itself, which contain some praise of the speaker himself, or

some vituperation of the adversary, or else may lead to some other

topic from which he may derive some confirmation or reprehension, not

by arguing, but by expanding the subject by some amplification or

other. If any one thinks that this is a proper part of an oration, he

may follow Hermagoras. For precepts for embellishing, and praising,

and blaming, have partly been already given by us, and partly will be

given hereafter in their proper place. But we do not think it right

that this part should be classed among the regular divisions of a

speech, because it appears improper that there should be digressions,

except to some common topics, concerning which subject we must speak

subsequently. But it does not seem desirable to handle praise and

vituperation separately, but it seems better that they should be

considered as forming part of the argumentation itself. At present we

will treat of the conclusion of an oration.

LII. The conclusion is the end and terminating of the whole oration.

It has three parts,--enumeration, indignation, and complaint.

Enumeration is that by which matters which have been related in a

scattered and diffuse manner are collected together, and, for the sake

of recollecting them, are brought under our view. If this is always

treated in the same manner, it will be completely evident to every one

that it is being handled according to some artificial system; but if

it be done in many various ways, the orator will be able to escape

this suspicion, and will not cause such weariness. Wherefore it will

be desirable to act in the way which most people adopt, on account of

its easiness; that is, to touch on each topic separately, and in that

manner briefly to run over all sorts of argumentation; and also (which

is, however, more difficult) to recount what portions of the subject

you previously mentioned in the arrangement of the subject, as those

which you promised to explain; and also to bring to the recollection

of your hearers the reasonings by which you established each separate

point, and then to ask of those who are hearing you what it is which

they ought to wish to be proved to them; in this way:--"We proved

this; we made that plain;" and by this means the hearer will recover

his recollection of it, and will think that there is nothing besides

which he ought to require.

And in these kinds of conclusions, as has been said before, it will

be serviceable both to run over the arguments which you yourself have

employed separately, and also (which is a matter requiring still

greater art) to unite the opposite arguments with your own; and to

show how completely you have done away with the arguments which were

brought against you. And so, by a brief comparison, the recollection

of the hearer will be refreshed both as to the confirmation which you

adduced, and as to the reprehension which you employed. And it will be

useful to vary these proceedings by other methods of pleading also.

But you may carry on the enumeration in your own person, so as to

remind your hearers of what you said, and in what part of your speech

you said each thing; and also you may bring on the stage some other

character, or some different circumstance, and then make your whole

enumeration with reference to that. If it is a person, in this

way:--"For if the framer of the law were to appear, and were to

inquire of you why you doubted, what could you say after this, and

this, and this has been proved to you?" And in this case, as also in

our own character, it will be in our power to run over all kinds of

argumentation separately: and at one time to refer all separate genera

to different classes of the division, and at another to ask of the

hearer what he requires, and at another to adopt a similar course by a

comparison of one's own arguments and those of the opposite party.

But a different class of circumstance will be introduced if an

enumerative oration be connected with any subject of this sort,--law,

place, city, or monument, in this manner.--"What if the laws

themselves could speak? Would not they also address this complaint to

you? What more do you require, O judges when this, and this, and this

has been already made plain to you?" And in this kind of argument it

is allowable to use all these same methods. But this is given as a

common precept to guide one in framing an enumeration, that out of

every part of the argument, since the whole cannot be repeated over

again, that is to be selected which is of the greatest weight, and

that each point is to be run over as briefly as possible, so that

it shall appear to be only a refreshing of the recollection of the

hearers, not a repetition of the speech.

LIII. Indignation is a kind of speech by which the effect produced is,

that great hatred is excited against a man, or great dislike of some

proceeding is originated. In an address of this kind we wish to have

this understood first, that it is possible to give vent to indignation

from all those topics which we have suggested in laying down precepts

for the confirmation of a speech. For any amplifications whatever,

and every sort of indignation may be expressed, derived from those

circumstances which are attributed to persons and to things, but

still we had better consider those precepts which can be laid down

separately with respect to indignation.

The first topic is derived from authority, when we relate what a great

subject of anxiety that affair has been to the immortal gods, or to

those whose authority ought to carry the greatest weight with it.

And that topic will be derived from prophecies, from oracles, from

prophets, from tokens, from prodigies, from answers, and from other

things like these. Also from our ancestors, from kings, from states,

from nations from the wisest men, from the senate, the people, the

framers of laws. The second topic is that by which it is shown

with amplification, by means of indignation, whom that affair

concerns,--whether it concerns all men or the greater part of men,

(which is a most serious business,) or whether it concerns the higher

classes, such as those men are on whose authority the indignation

which we are professing is grounded, (which is most scandalous,) or

whether it affects those men who are one's equals in courage, and

fortune, and personal advantages, (which is most iniquitous,) or

whether it affects our inferiors, (which is most arrogant).

The third topic is that which we employ when we are inquiring what is

likely to happen, if every one else acts in the same manner. And at

the same time we point out if this man is permitted to act thus, that

there will be many imitators of the same audacity, and then from that

we shall be able to point out how much evil will follow.

The fourth topic is one by the use of which we show that many men are

eagerly looking out to see what is decided, in order that they may be

able to see by the precedent of what is allowed to one, what will be

allowed to themselves also in similar circumstances.

The fifth topic is one by the use of which we show that everything

else which has been badly managed, as soon as the truth concerning

them is ascertained, may be all set right, that this thing, however,

is one which, if it be once decided wrongly, cannot be altered by any

decision, nor set right by any power.

The sixth topic is one by which the action spoken of is proved to have

been done designedly and on purpose, and then we add this argument,

that pardon ought not to be granted to an intentional crime.

The seventh topic is one which we employ when we say that any deed

is foul, and cruel, and nefarious, and tyrannical; that it has been

effected by violence or by the influence of riches--a thing which

is as remote as possible from the laws and from all ideas of equal

justice.

LIV. An eighth topic is one of which we avail ourselves to demonstrate

that the crime which is the present subject of discussion is not

a common one,--not one such as is often perpetrated. And, that is

foreign to the nature of even men in a savage state, of the most

barbarous nations, or even of brute beasts. Actions of this nature are

such as are wrought with cruelty towards one's parents, or wife, or

husband, or children, or relations, or suppliants; next to them,

if anything has been done with inhumanity towards a man's

elders,--towards those connected with one by ties of hospitality,

--towards one's neighbours or one's friends,--to those with

whom one has been in the habit of passing one's life,--to those

by whom one has been brought up,--to those by whom one has been

taught,--to the dead,--to those who are miserable and deserving of

pity,--to men who are illustrious, noble, and who have been invested

with honours and offices,--to those who have neither had power to

injure another nor to defend themselves, such as boys, old men, women:

by all which circumstances indignation is violently excited, and will

be able to awaken the greatest hatred against a man who has injured

any of these persons.

The ninth topic is one by which the action which is the subject of the

present discussion is compared with others which are admitted on all

hands to be offences. And in that way it is shown by comparison how

much more atrocious and scandalous is the action which is the present

subject of discussion.

The tenth topic is one by which we collect all the circumstances which

have taken place in the performance of this action, and which have

followed since that action, with great indignation at and reproach of

each separate item, and by our description we bring the case as far as

possible before the eyes of the judge before whom we are speaking, so

that that which is scandalous may appear quite as scandalous to him as

if he himself had been present to see what was done.

The eleventh topic is one which we avail ourselves of when we are

desirous to show that the action has been done by him whom of all men

in the world it least became to do it, and by whom indeed it ought to

have been prevented if any one else had endeavoured to do it.

The twelfth topic is one by means of which we express our indignation

that we should be the first people to whom this has happened, and that

it has never occurred in any other instance.

The thirteenth topic is when insult is shown to have been added

to injury, and by this topic we awaken hatred against pride and

arrogance.

The fourteenth topic is one which we avail ourselves of to entreat

those who hear us to consider our injuries as if they affected

themselves; if they concern our children, to think of their own, if

our wives have been injured, to recollect their own wives, if it is

our aged relations who have suffered, to remember their own fathers or

ancestors.

The fifteenth topic is one by which we say that those things which

have happened to us appear scandalous even to foes and enemies, and

as a general rule, indignation is derived from one or other of these

topics.

LV. But complaint will usually take its origin from things of this

kind. Complaint is a speech seeking to move the pity of the hearers.

In this it is necessary in the first place to render the disposition

of the hearer gentle and merciful, in order that it may the more

easily be influenced by pity. And it will be desirable to produce that

effect by common topics, such as those by which the power of fortune

over all men is shown, and the weakness of men too is displayed,

and if such an argument is argued with dignity and with impressive

language, then the minds of men are greatly softened, and prepared to

feel pity, while they consider their own weakness in the contemplation

of the misfortunes of another.

Then the first topic to raise pity is that by which we show how great

the prosperity of our clients was, and how great their present misery

is.

The second is one which is divided according to different periods,

according to which it is shown in what miseries they have been, and

still are, and are likely to be hereafter.

The third topic is that by which each separate inconvenience is

deplored, as, for instance, in speaking of the death of a man's son,

the delight which the father took in his childhood, his love for him,

his hope of him, the comfort he derived from him, the pains he took

in his bringing up, and all other instances of the same sort, may be

mentioned so as to exaggerate the complaint.

The fourth topic is one in which all circumstances which are

discreditable or low or mean are brought forward, all circumstances

which are unworthy of a man's age, or both, or fortune, or former

honours or services, all the disasters which they have suffered or are

liable to suffer.

The fifth topic is that by using which all disadvantages we brought

separately before the eyes of the hearer, so that he who hears of them

may seem to see them, and by the very facts themselves, and not only

by the description of them, may be moved to pity as if he had been

actually present.

The sixth topic is one by which the person spoken of is shown to be

miserable, when he had no reason to expect any such fate; and that

when he was expecting something else, he not only failed to obtain it,

but fell into the most terrible misfortunes.

The seventh is one by which we suppose the fact of a similar mischance

befalling the men who are listening to us, and require of them when

they behold us to call to mind their own children, or their parents,

or some one for whom they are bound to entertain affections.

The eighth is one by which something is said to have been done which

ought not to have been done; or not to have been done which ought to

have been. In this manner:--"I was not present, I did not see him,

I did not hear his last words, I did not receive his last breath.

Moreover, he died amid his enemies, he lay shamefully unburied in an

enemy's country, being torn to pieces by wild beasts, and was deprived

in death of even that honour which is the due of all men."

The ninth is one by which our speech is made to refer to things which

are void both of language and sense; as if you were to adapt your

discourse to a horse, a house, or a garment; by which topics the minds

of those who are hearing, and who have been attached to any one, are

greatly moved.

The tenth is one by which want, or weakness, or the desolate condition

of any one is pointed out.

The eleventh is one in which is contained a recommendation to bury

one's children, or one's parents, or one's own body, or to do any

other such thing.

The twelfth is one in which a separation is lamented when you are

separated from any one with whom you have lived most pleasantly,--as

from a parent, a son, a brother, an intimate friend.

The thirteenth is one used when we complain with great indignation

that we are ill-treated by those by whom above all others we least

ought to be so,--as by our relations, or by friends whom we have

served, and whom we have expected to be assistants to us; or by whom

it is a shameful thing to be ill-treated,--as by slaves, or freedmen,

or clients, or suppliants.

The fourteenth is one which is taken as an entreaty, in which those

who hear us are entreated, in a humble and suppliant oration, to have

pity on us.

The fifteenth is one in which we show that we are complaining not only

of our own fortunes, but of those who ought to be dear to us.

The sixteenth is one by using which we show that our hearts are full

of pity for others; and yet give tokens at the same time that it will

be a great and lofty mind, and one able to endure disaster if any such

should befall us. For often virtue and splendour, in which there is

naturally great influence and authority, have more effect in exciting

pity than humility and entreaties. And when men's minds are moved it

will not be right to dwell longer on complaints; for, as Apollonius

the rhetorician said, "Nothing dries quicker than a tear."

But since we have already, as it seems, said enough of all the

different parts of a speech, and since this volume has swelled to a

great size, what follows next shall be stated in the second book.

* * * * *

THE SECOND BOOK OF THE RHETORIC, OR OF THE TREATISE ON RHETORICAL

INVENTION, OF M.T. CICERO.

I. Some men of Crotona, when they were rich in all kinds of resources,

and when they were considered among the most prosperous people in

Italy, were desirous to enrich the temple of Juno, which they regarded

with the most religious veneration, with splendid pictures. Therefore

they hired Zeuxis of Heraclea at a vast price, who was at that time

considered to be far superior to all other painters, and employed

him in that business. He painted many other pictures, of which some

portion, on account of the great respect in which the temple is held,

has remained to within our recollection; and in order that one of his

mute representations might contain the preeminent beauty of the female

form, he said that he wished to paint a likeness of Helen. And the men

of Crotona, who had frequently heard that he excelled all other men in

painting women, were very glad to hear this; for they thought that if

he took the greatest pains in that class of work in which he had the

greatest skill, he would leave them a most noble work in that temple.

Nor were they deceived in that expectation: for Zeuxis immediately

asked of them what beautiful virgins they had; and they immediately

led him into the palaestra, and there showed him numbers of boys of

the highest birth and of the greatest beauty. For indeed, there was a

time when the people of Crotona were far superior to all other cities

in the strength and beauty of their persons; and they brought home

the most honourable victories from the gymnastic contests, with the

greatest credit. While, therefore, he was admiring the figures of the

boys and their personal perfection very greatly; "The sisters," say

they, "of these boys are virgins in our city, so that how great their

beauty is you may infer from these boys." "Give me, then," said he,

"I beg you, the most beautiful of these virgins, while I paint the

picture which I promised you, so that the reality may be transferred

from the breathing model to the mute likeness." Then the citizens of

Crotona, in accordance with a public vote, collected the virgins into

one place, and gave the painter the opportunity of selecting whom he

chose. But he selected five, whose names many poets have handed down

to tradition, because they had been approved by the judgment of the

man who was bound to have the most accurate judgment respecting

beauty. For he did not think that he could find all the component

parts of perfect beauty in one person, because nature has made nothing

of any class absolutely perfect in every part. Therefore, as if nature

would not have enough to give to everybody if it had given everything

to one, it balances one advantage bestowed upon a person by another

disadvantage.

II. But since the inclination has arisen in my mind to write a

treatise on the art of speaking, we have not put forth any single

model of which every portion was necessarily to be copied by us, of

whatever sort they might be; but, having collected together all the

writers on the subject into one place, we have selected what each

appears to have recommended which may be most serviceable, and we have

thus culled the flower from various geniuses. For of those who are

worthy of fame or recollection, there is no one who appears either to

have said nothing well, or everything admirably. So that it seemed

folly either to forsake the sensible maxims brought forward by any

one, merely because we are offended at some other blunder of his, or,

on the other hand, to embrace his faults because we have been tempted

by some sensible precept which he has also delivered.

But if in other pursuits also men would select all that was found most

sensible from many sources, instead of devoting themselves to one

fixed leader, they would err less on the side of arrogance; they

would not persist so much in error, and they would make less enormous

mistakes through ignorance. And if we had as deep an acquaintance with

this art as he had with that of painting, perhaps this work of ours

might appear as admirable in its kind as his picture did. For we have

had an opportunity of selecting from a much more copious store of

models than he had. He was able to make his selection from one city,

and from that number of virgins only which existed at that time and

place; but we have had opportunity of making our selection from all

the men who have ever lived from the very first beginning of this

science, being reduced to a system up to the present day, and taking

whatever we thought worth while from all the stores which lay open

before us.

And Aristotle, indeed, has collected together all the ancient writers

on this art, from the first writer on the subject and inventor of it,

Tisias, and has compiled with great perspicuity the precepts of each

of them, mentioning them by name, after having sought them out with

exceeding care; and he has disentangled them with great diligence

and explained their difficulties; and he has so greatly excelled the

original writers themselves in suavity and brevity of diction, that no

one is acquainted with their precepts from their own writings, but all

who wish to know what maxims they have laid down, come back to him as

to a far more agreeable expounder of their meaning.

And he himself has set before us himself and those too who had lived

before his time, in order that we might be acquainted with the method

of others, and with his own. And those who have followed him, although

they have expended a great deal of labour on the most profound and

important portions of philosophy, as he himself also, whose example

they were following, had done, have still left us many precepts on the

subject of speaking. And other masters of this science have also come

forward, taking their rise, as it were in other springs, who have also

been of great assistance in eloquence, as far at least as artificial

rules can do any good. For there lived at the same time as Aristotle,

a great and illustrious rhetorician, named Isocrates, though we have

not entirely discovered what his system was.

But we have found many lessons respecting their art from his pupils

and from those who proceeded immediately afterwards from this school.

III. From these two different families, as it were, the one of which,

while it was chiefly occupied with philosophy, still devoted some

portion of its attention to the rhetorical science, and the other was

wholly absorbed in the study and teaching of eloquence, but both kinds

of study were united by their successors, who brought to the aid of

their own pursuits those things which appeared to have been profitably

said by either of them, and those and the others their predecessors

are the men whom we and all our countrymen have proposed to ourselves

as models, as far as we were able to make them so, and we have also

contributed something from our own stores to the common stock.

But if the things which are set forth in these books deserved to

be selected with such great eagerness and care as they were, then

certainly, neither we ourselves nor others will repent of our

industry. But if we appear either rashly to have passed over some

doctrine of some one worth noticing, or to have adopted it without

sufficient elegance, in that case when we are taught better by some

one, we will easily and cheerfully change our opinion. For what is

discreditable is, not the knowing little, but the persisting foolishly

and long in what one does not understand, because the one thing is

attributed to the common infirmity of man, but the other to the

especial fault of the individual.

Wherefore we, without affirming anything positively, but making

inquiry at the same time, will advance each position with some doubt,

lest while we gain this trifling point of being supposed to have

written this treatise with tolerable neatness, we should lose that

which is of the greater importance, the credit, namely, of not

adopting any idea rashly and arrogantly. But this we shall endeavour

to gain both at present and during the whole course of our life with

great care, as far as our abilities will enable us to do so. But at

present, lest we should appear to be too prolix, we will speak of the

other points which it seems desirable to insist on.

Therefore, while we were explaining the proper classification of this

art, and its duties, and its object, and its subject matter, and its

divisions, the first book contained an account of the different kinds

of disputes, and inventions, and statements of cases, and decisions.

After that, the parts of a speech were described, and all necessary

precepts for all of them were laid down. So that we not only discussed

other topics in that book with tolerable distinctness, we spoke

at that same time in a more scattered manner of the topics of

confirmation and reprehension; and at present we think it best to give

certain topics for confirming and reprehending, suited to every class

of causes. And because it has been explained with some diligence in

the former book, in what manner argumentations ought to be handled, in

this book it will be sufficient to set forth the arguments which have

been discovered for each kind of subject simply, and without any

embellishment, so that, in this book, the arguments themselves may be

found, and in the former, the proper method of polishing them. So that

the reader must refer the precepts which are now laid down, to the

topics of confirmation and reprehension.

IV. Every discussion, whether demonstrative, or deliberative, or

judicial, must be conversant with some kind or other of statement of

the case which has been explained in the former book; sometimes with

one, sometimes with several. And though this is the case, still as

some things can be laid down in a general way respecting everything,

there are also other rules and different methods separately laid down

for each particular kind of discussion. For praise, or blame, or the

statement of an opinion, or accusation, or denial, ought all to effect

different ends. In judicial investigations the object of inquiry is,

what is just, in demonstrative discussion the question is what is

honourable, in deliberations, in our opinion, what we inquire is, what

is honourable and at the same time expedient. For the other writers

on this subject have thought it right to limit the consideration of

expediency to speeches directed to persuasion or dissuasion.

Those kinds of discussions then whose objects and results are

different, cannot be governed by the same precepts. Not that we are

saying now that the same statement of the case is not admissible in

all of them, but some kinds of speech arise from the object and kind

of the discussion, if it refers to the demonstration of some kind of

life, or to the delivery of some opinion. Wherefore now, in explaining

controversies, we shall have to deal with causes and precepts of a

judicial kind, from which many precepts also which concern similar

disputes will be transferred to other kinds of causes without much

difficulty. But hereafter we will speak separately of each kind.

At present we will begin with the conjectural statement of a case

of which this example may be sufficient to be given--A man overtook

another on his journey as he was going on some commercial expedition,

and carrying a sum of money with him, he, as men often do entered into

conversation with him on the way, the result of which was, that they

both proceeded together with some degree of friendship, so that when

they had arrived at the same inn, they proposed to sup together and to

sleep in the same apartment. Having supped, they retired to rest in

the same place. But when the innkeeper (for that is what is said to

have been discovered since, after the man had been detected in another

crime) had taken notice of one of them, that is to say, of him who had

the money, he came by night, after he had ascertained that they were

both sound asleep, as men usually are when tired, and took from its

sheath the sword of the one who had not the money, and which sword he

had lying by his side and slew the other man with it and took away

his money, and replaced the bloody sword in the sheath, and returned

himself to his bed.

But the man with whose sword the murder had been committed, rose

long before dawn and called over and over again on his companion; he

thought that he did not answer because he was overcome with sleep; and

so he took his sword and the rest of the things which he had with him,

and departed on his journey alone. The innkeeper not long afterwards

raised an outcry that the man was murdered, and in company with some

of his lodgers pursued the man who had gone away. They arrest him on

his journey, draw his sword out of its sheath, and find it bloody, the

man is brought back to the city by them, and put on his trial. On this

comes the allegation of the crime, "You murdered him," and the denial,

"I did not murder him," and from this is collected the statement of

the case. The question in the conjectural examination is the same as

that submitted to the judges, "Did he murder him, or not?"

V. Now we will set forth the topics one portion of which applies to

all conjectural discussion. But it will be desirable to take notice of

this in the exposition of these topics and of all the others, and to

observe that they do not all apply to every discussion. For as every

man's name is made up of some letters, and not of every letter, so it

is not every store of arguments which applies to every argumentation,

but some portion which is necessary applies to each. All conjecture,

then, must be derived either from the cause of an action, or from the

person, or from the case itself.

The cause of an action is divided into impulsion and ratiocination.

Impulsion is that which without thought encourages a man to act in

such and such a manner, by means of producing some affection of

the mind, as love, anger, melancholy, fondness for wine, or indeed

anything by which the mind appears to be so affected as to be unable

to examine anything with deliberation and care, and to do what it does

owing to some impulse of the mind, rather than in consequence of any

deliberate purpose.

But ratiocination is a diligent and careful consideration of whether

we shall do anything or not do it. And it is said to have been in

operation, when the mind appears for some particular definite reason

to have avoided something which ought not to have been done, or to

have adopted something which ought to have been done, so that if

anything is said to have been done for the sake of friendship, or of

chastising an enemy, or under the influence of fear, or of a desire

for glory or for money, or in short, to comprise everything under

one brief general head, for the sake of retaining, or increasing, or

obtaining any advantage; or, on the other hand, for the purpose of

repelling, or diminishing, or avoiding any disadvantage;--for those

former things must fall under one or other of those heads, if either

any inconvenience is submitted to for the purpose of avoiding any

greater inconvenience, or of obtaining any more important advantage;

or if any advantage is passed by for the sake of obtaining some

other still greater advantage, or of avoiding some more important

disadvantage.

This topic is as it were a sort of foundation of this statement of the

case; for nothing that is done is approved of by any one unless some

reason be shown why it has been done. Therefore the accuser, when he

says that anything has been done in compliance with some impulse,

ought to exaggerate that impulse, and any other agitation or affection

of the mind, with all the power of language and variety of sentiments

of which he is master, and to show how great the power of love is, how

great the agitation of mind which arises from anger, or from any one

of those causes which he says was that which impelled any one to do

anything. And here we must take care, by an enumeration of examples of

men who have done anything under the influence of similar impulse, and

by a collation of similar cases, and by an explanation of the way in

which the mind itself is affected, to hinder its appearing marvellous

if the mind of a man has been instigated by such influence to some

pernicious or criminal action.

VI. But when the orator says that any one has done such and such

an action, not through impulse, but in consequence of deliberate

reasoning, he will then point out what advantage he has aimed at,

or what inconvenience he has avoided, and he will exaggerate the

influence of those motives as much as he can, so that as far as

possible the cause which led the person spoken of to do wrong, may

appear to have been an adequate one. If it was for the sake of glory

that he did so and so, then he will point out what glory he thought

would result from it; again, if he was influenced by desire of power,

or riches, or by friendship, or by enmity; and altogether whatever the

motive was, which he says was his inducement to the action, he will

exaggerate as much as possible.

And he is bound to give great attention to this point, not only what

the effect would have been in reality, but still more what it would

have been in the opinion of the man whom he is accusing. For it makes

no difference that there really was or was not any advantage or

disadvantage, if the man who is accused believed that there would or

would not be such. For opinion deceives men in two ways, when either

the matter itself is of a different kind from that which it is

believed to be, or when the result is not such as they thought it

would be. The matter itself is of a different sort when they think

that which is good bad, or, on the other hand, when they think that

good which is bad. Or when they think that good or bad which is

neither good nor bad, or when they think that which is good or bad

neither bad nor good.

Now that this is understood, if any one denies that there is any money

more precious or sweeter to a man than his brother's or his friend's

life, or even than his own duty, the accuser is not to deny that; for

then the blame and the chief part of the hatred will be transferred to

him who denies that which is said so truly and so piously. But what

he ought to say is, that the man did not think so; and that assertion

must be derived from those topics which relate to the person,

concerning whom we must speak hereafter.

VII. But the result deceives a person, when a thing has a different

result from that which the persons who are accused are said to have

thought it would have. As when a man is said to have slain a different

person from him whom he intended to slay, either because he was

deceived by the likeness or by some suspicion, or by some false

indication; or that he slew a man who had not left him his heir in his

will, because he believed that he had left him his heir. For it is not

right to judge of a man's belief by the result, but rather to consider

with what expectation, and intention, and hope he proceeded to such

a crime; and to recollect that the matter of real importance is to

consider with what intention a man does a thing, and not what the

consequence of his action turns out to be.

And in this topic this will be the great point for the accuser, if he

is able to show that no one else had any reason for doing so at all.

And the thing next in importance will be to show that no one else had

such great or sufficient reason for doing so. But if others appear

also to have had a motive for doing so, then we must show that they

had either no power, or no opportunity, or no inclination to do it.

They had no power if it can be said that they did not know it, or were

not in the place, or were unable to have accomplished it; they had no

opportunity, if it can be proved that any plan, any assistants, any

instruments, and all other things which relate to such an action, were

wanting to them. They had no inclination, if their disposition can be

said to be entirely alien to such conduct, and unimpeachable. Lastly,

whatever arguments we allow a man on his trial to use in his defence,

the very same the prosecutor will employ in delivering others from

blame. But that must be done with brevity, and many arguments must be

compressed into one, in order that he may not appear to be accusing

the man on his trial for the sake of defending some one else, but to

be defending some one else with a view to strengthen his accusation

against him.

VIII. And these are for the most part the things which must be done

and considered by an accuser. But the advocate for the defence will

say, on the other hand, either that there was no motive at all, or, if

he admits that there was, he will make light of it, and show that it

was a very slight one, or that such conduct does not often proceed

from such a motive. And with reference to this topic it will be

necessary to point out what is the power and character of that motive,

by which the person on his trial is said to have been induced to

commit any action; and in doing this it is requisite to adduce

instances and examples of similar cases, and the actual nature of

such a motive is to be explained as gently as possible, so that the

circumstance which is the subject of the discussion may be explained

away, and instead of being considered as a cruel and disorderly act,

may be represented as something more mild and considerate, and still

the speech itself may be adapted to the mind of the hearer, and to a

sort of inner feeling, as it were, in his mind.

But the orator will weaken the suspicions arising from the

ratiocination, if he shall say either that the advantage intimated had

no existence, or a very slight one, or that it was a greater one to

others, or that it was no greater advantage to himself than to others,

or that it was a greater disadvantage than advantage to himself.

So that the magnitude of the advantage which is said to have been

desired, was not to be compared with the disadvantage which was really

sustained, or with the danger which was incurred. And all those topics

will be handled in the same manner in speaking of the avoiding of

disadvantage.

But if the prosecutor has said that the man on his trial was pursuing

what appeared to him to be an advantage, or was avoiding that which

appeared to him to be a disadvantage, even though he was mistaken in

that opinion, then the advocate for the defence must show that no one

can be so foolish as to be ignorant of the truth in such an affair.

And if that be granted, then the other position cannot be granted,

that the man ever doubted at all what the case was, but that he,

without the least hesitation, considered what was false as false,

and what was true as true. But if he doubted, then it was a proof of

absolute insanity for a man under the influence of a doubtful hope to

incur a certain danger.

But as the accuser when he is seeking to remove the guilt from others

must use the topics proper to an advocate for the defence; so the man

on his trial must use those topics which have been allotted to an

accuser, when he wishes to transfer an accusation from his own

shoulders to those of others.

IX. But conjectures will be derived from the person, if those things

which have been attributed to persons are diligently considered, all

of which we have mentioned in the first book; for sometimes some

suspicion arises from the name. But when we say the name, we mean also

the surname. For the question is about the particular and peculiar

name of a man, as if we were to say that a man is called Caldus

because he is a man of a hasty and sudden disposition; or that

ignorant Greeks have been deceived by men being called Clodius, or

Caecilius, or Marcus.

And we may also derive some suspicious circumstances from nature; for

all these questions, whether it is a man or a woman, whether he is of

this state or that one, of what ancestors a man is descended, who are

his relations, what is his age, what is his disposition, what bodily

strength, or figure, or constitution he has, which are all portions

of a man's nature, have much influence in leading men to form

conjectures.

Many suspicions also are engendered by men's way of life, when the

inquiry is how, and by whom, and among whom a man was brought up and

educated, and with whom he associates, and what system and habits of

domestic life he is devoted to.

Moreover, argumentation often arises from fortune; when we consider

whether a man is a slave or a free man, rich or poor, noble or

ignoble, prosperous or unfortunate; whether he now is, or has been,

or is likely to be a private individual or a magistrate; or, in fact,

when any one of those circumstances is sought to be ascertained which

are attributable to fortune. But as habit consists in some perfect

and consistent formation of mind or body, of which kind are virtue,

knowledge, and their contraries; the fact itself, when the whole

circumstances are stated, will show whether this topic affords any

ground for suspicion. For the consideration of the state of a

man's mind is apt to give good grounds for conjecture, as of his

affectionate or passionate disposition, or of any annoyance to which

he has been exposed; because the power of all such feelings and

circumstances is well understood, and what results ensue after any one

of them is very easy to be known.

But since study is an assiduous and earnest application of the mind

to any particular object with intense desire, that argument which the

case itself requires will easily be deduced from it. And again,

some suspicion will be able to be inferred from the intention;

for intention is a deliberate determination of doing or not doing

something. And after this it will be easy to see with respect to

facts, and events, and speeches, which are divided into three separate

times, whether they contribute anything to confirming the conjectures

already formed in the way of suspicion.

X. And those things indeed are attributed to persons, which when they

are all collected together in one place, it will be the business of

the accuser to use them as inducing a disapprobation of the person;

for the fact itself has but little force unless the disposition of the

man who is accused can be brought under such suspicion as to appear

not to be inconsistent with such a fault. For although there is no

great advantage in expressing disapprobation of any one's disposition,

when there is no cause why he should have done wrong, still it is but

a trifling thing that there should be a motive for an offence, if the

man's disposition is proved to be inclined to no line of conduct which

is at all discreditable. Therefore the accuser ought to bring into

discredit the life of the man whom he is accusing, by reference to

his previous actions, and to show whether he has ever been previously

convicted of a similar offence. And if he cannot show that, he must

show whether he has ever incurred the suspicion of any similar guilt;

and especially, if possible, that he has committed some offence or

other of some kind under the influence of some similar motive to this

which is in existence here, in some similar case, or in an equally

important case, or in one more important, or in one less important.

As, if with respect to a man who he says has been induced by money to

act in such and such a manner, he were able to show that any other

action of his in any case had been prompted by avarice.

And again it will be desirable in every cause to mention the nature,

or the manner of life, or the pursuits, or the fortune, or some one of

those circumstances which are attributed to persons, in connexion with

that cause which the speaker says was the motive which induced the man

on his trial to do wrong; and also, if one cannot impute anything to

him in respect of an exactly corresponding class of faults, to bring

the disposition of one's adversary into discredit by reference to some

very dissimilar class. As, if you were to accuse him of having done

so and so, because he was instigated by avarice; and yet, if you are

unable to show that the man whom you accuse is avaricious, you must

show that other vices are not wholly foreign to his nature, and that

on that account it is no great wonder if a man who in any affair has

behaved basely, or covetously, or petulantly, should have erred in

this business also. For in proportion as you can detract from

the honesty and authority of the man who is accused, in the same

proportion has the force of the whole defence been weakened.

If it cannot be shown that the person on his trial has been ever

before implicated in any previous guilt, then that topic will come

into play which we are to use for the purpose of encouraging the

judges to think that the former character of the man has no bearing

on the present question; for that he has formerly concealed his

wickedness, but that he is now manifestly convicted; so that it is not

proper that this case should be looked at with reference to his former

life, but that his former life should now be reproved by this conduct

of his, and that formerly he had either no opportunity of doing wrong,

or no motive to do so. Or if this cannot be said, then we must have

recourse to this last assertion,--that it is no wonder if he now does

wrong for the first time, for that it is necessary that a man who

wishes to commit sin, must some time or other commit it for the first

time. If nothing whatever is known of his previous life, then it is

best to pass over this topic, and to state the reason why it is passed

over, and then to proceed at once to corroborate the accusation by

arguments.

XI. But the advocate for the defence ought in the first place to show,

if he can, that the life of the person who is accused has always been

as honourable as possible. And he will do this best by recounting any

well known services which he has rendered to the state in general,

or any that he has done to his parents, or relations, or friends, or

kinsmen, or associates, or even any which are more remarkable or more

unusual, especially if they have been done with any extraordinary

labour, or danger, or both, or when there was no absolute necessity,

purely because it was his duty, or if he has done any great benefit to

the republic, or to his parents, or to any other of the people whom I

have just mentioned, and if, too, he can show that he has never been

so influenced by any covetousness as to abandon his duty, or to commit

any error of any description. And this statement will be the more

confirmed, if when it is said that he had an opportunity of doing

something which was not quite creditable with impunity, it can be

shown at the same time that he had no inclination to do it.

But this very kind of argument will be all the stronger if the person

on his trial can be shown to have been unimpeachable previously in

that particular sort of conduct of which he is now accused, as, for

instance, if he be accused of having done so and so for the sake

of avarice, and can be proved to have been all his life utterly

indifferent to the acquisition of money. On this indignation may be

expressed with great weight, united with a complaint that it is a most

miserable thing, and it may be argued that it is a most scandalous

thing, to think that that was the man's motive, when his disposition

during the whole of his life has been as unlike it as possible. Such a

motive often harries audacious men into guilt, but it has no power to

impel an upright man to sin. It is unjust, moreover, and injurious to

every virtuous man, that a previously well-spent life should not be of

the greatest possible advantage to a man at such a time, but that a

decision should be come to with reference only to a sudden accusation

which can be got up in a hurry, and with no reference to a man's

previous course of life, which cannot be extemporised to suit an

occasion, and which cannot be altered by any means.

But if there have been any acts of baseness in his previous life, or

if they be said to have undeservedly acquired such a reputation, or if

his actions are to be attributed by the envy, or love of detraction,

or mistaken opinion of some people, either to ignorance, or necessity,

or to the persuasion of young men, or to any other affection of mind

in which there is no vice, or if he has been tainted with errors of

a different kind, so that his disposition appears not entirely

faultless, but still far remote from such a fault, and if his

disgraceful or infamous course of life cannot possibly be mitigated by

any speech,--then it will be proper to say that the inquiry does not

concern his life and habits, but is about that crime for which he is

now prosecuted, so that, omitting all former actions, it is proper

that the matter which is in hand should be attended to.

XII. But suspicions may be derived from the fact itself, if the

administration of the whole matter is examined into in all its parts;

and these suspicions will arise partly from the affair itself when

viewed separately, and partly from the persons and the affairs taken

together. They will be able to be derived from the affair, if we

diligently consider those circumstances which have been attributed

to such affairs. And from them all the different genera, and most

subordinate species, will appear to be collected together in this

statement of the case.

It will therefore be desirable to consider in the first place what

circumstances there are which are united to the affair itself,--that

is to say, which cannot be separated from it, and with reference to

this topic it will be sufficient to consider what was done before the

affair in question took place from which a hope arose of accomplishing

it, and an opportunity was sought of doing it, what happened with

respect to the affair itself, and what ensued afterwards. In the next

place, the execution of the whole affair must be dealt with for this

class of circumstances which have been attributed to the affair has

been discussed in the second topic.

So with reference to this class of circumstances we must have a

regard to time, place, occasion, and opportunity, the force of each

particular of which has been already carefully explained when we were

laying down precepts for the confirmation of an argument. Wherefore,

that we may not appear to have given no rules respecting these things,

and that we may not, on the other hand, appear to have repeated the

same things twice over, we will briefly point out what it is proper

should be considered in each part. In reference to place, then,

opportunity is to be considered; and in reference to time, remoteness;

and in reference to occasion, the convenience suitable for doing

anything; and with reference to facility, the store and abundance

of those things by means of which anything is done more easily, or

without which it cannot be done at all.

In the next place we must consider what is added to the affair, that

is to say, what is greater, what is less, what is equally great, what

is similar. And from these topics some conjecture is derived, if

proper consideration is given to the question how affairs of greater

importance, or of less, or of equal magnitude, or of similar

character, are usually transacted. And in this class of subjects the

result also ought to be examined into; that is to say, what usually

ensues as the consequence of every action must be carefully

considered; as, for instance, fear, joy, trepidation.

But the fourth part was a necessary consequence from those

circumstances which we said were attendant on affairs. In it those

things are examined which follow the accomplishment of an affair,

either immediately or after an interval. And in this examination we

shall see whether there is any custom, any action, any system, or

practice, or habit, any general approval or disapproval on the part of

mankind in general, from which circumstance some suspicion at times

arises.

XIII. But there are some suspicions which are derived from the

circumstances which are attributed to persons and things taken

together. For many circumstances arising from fortune, and from

nature, and from the way of a man's life, and from his pursuits

and actions, and from chance, or from speeches, or from a person's

designs, or from his usual habit of mind or body, have reference to

the same things which render a statement credible or incredible, and

which are combined with a suspicion of the fact.

For it is above all things desirable that inquiry should be made in

this way, of stating the case first of all, whether anything could be

done; in the next place, whether it could have been done by any one

else; then we consider the opportunity, on which we have spoken

before; then whether what has been done is a crime which one is

bound to repent of; we must inquire too whether he had any hope of

concealing it; then whether there was any necessity for his doing so;

and as to this we must inquire both whether it was necessary that the

thing should be done at all, or that it should be done in that manner.

And some portion of these considerations refer to the design, which

has been already spoken of as what is attributed to persons; as in the

instance of that cause which we have mentioned. These circumstances

will be spoken of as before the affair,--the facts, I mean, of his

having joined himself to him so intimately on the march, of his having

sought occasion to speak with him, of his having lodged with him,

and supped with him. These circumstances were a part of the

affair,--night, and sleep. These came after the affair,--the fact

of his having departed by himself; of his having left his intimate

companion with such indifference; of his having a bloody sword.

Part of these things refer to the design. For the question is asked,

whether the plan of executing this deed appears to have been one

carefully devised and considered, or whether it was adopted so hastily

that it is not likely that any one should have gone on to crime so

rashly. And in this inquiry we ask also whether the deed could have

been done with equal ease in any other manner; or whether it could

have happened by chance. For very often if there has been a want of

money, or means, or assistants, there would not appear to have been

any opportunity of doing such a deed. If we take careful notice

in this way, we shall see that all these circumstances which are

attributed to things, and those too which are attributed to persons,

fit one another. In this case it is neither easy nor necessary, as it

is in the former divisions, to draw distinctions as to how the accuser

and how the advocate for the defence ought to handle each topic. It

is not necessary, because, when the case is once stated, the

circumstances themselves will teach those men, who do not expect to

find everything imaginable in this treatise, what is suitable for each

case; and they will apply a reasonable degree of understanding to the

rules which are here laid down, in the way of comparing them with the

systems of others. And it is not easy, because it would be an endless

business to enter into a separate explanation with respect to every

portion of every case; and besides, these circumstances are adapted to

each part of the case in different manners on different occasions.

XIV. Wherefore it will be desirable to consider what we have now set

forth. And our mind will approach invention with more ease, if it

often and carefully goes over both its own relation and that of

the opposite party, of what has been done; and if, eliciting what

suspicions each part gives rise to, it considers why, and with what

intention, and with what hopes and plans, each thing was done. Why it

was done in this manner rather than in that; why by this man rather

than by that; why it was done without any assistant, or why with this

one; why no one was privy to it, or why somebody was, or why this

particular person was; why this was done before; why this was not done

before; why it was done in this particular instance; why it was done

afterwards; what was done designedly, or what came as a consequence of

the original action; whether the speech is consistent with the facts

or with itself; whether this is a token of this thing, or of that

thing, or of both this and that, and which it is a token of most; what

has been done which ought not to have been done, or what has not been

done which ought to have been done.

When the mind considers every portion of the whole business with this

intention, then the topics which have been reserved, will come into

use, which we have already spoken of; and certain arguments will

be derived from them both separately and unitedly. Part of which

arguments will depend on what is probable, part on what is necessary;

there will be added also to conjecture questions, testimony, reports.

All of which things each party ought to endeavour by a similar use of

these rules to turn to the advantage of his own cause. For it will be

desirable to suggest suspicions from questions, from evidence, and

from some report or other, in the same manner as they have been

derived from the cause, or the person, or the action.

Wherefore those men appear to us to be mistaken who think that this

kind of suspicion does not need any regular system, and so do those

who think that it is better to give rules in a different manner about

the whole method of conjectural argument. For all conjecture must be

derived from the same topics; for both the cause of every rumour and

the truth of it will be found to arise from the things attributed to

him who in his inquiry has made any particular statement, and to him

who has done so in his evidence. But in every cause a part of the

arguments is joined to that cause alone which is expressed, and it is

derived from it in such a manner that it cannot be very conveniently

transferred from it to all other causes of the same kind; but part

of it is more rambling, and adapted either to all causes of the same

kind, or at all events to most of them.

XV. These arguments then which can be transferred to many causes,

we call common topics. For a common topic either contains some

amplification of a well understood thing,--as if any one were desirous

to show that a man who has murdered his father is worthy of the very

extremity of punishment; and this topic is not to be used except when

the cause has been proved and is being summed up;--or of a doubtful

matter which has some probable arguments which can be produced on the

other side of the question also; as a man may say that it is right to

put confidence in suspicions, and, on the contrary, that it is not

right to put confidence in suspicions. And a portion of the common

topics is employed in indignation or in complaint, concerning which we

have spoken already. A part is used in urging any probable reason on

either side.

But an oration is chiefly distinguished and made plain by a sparing

introduction of common topics, and by giving the hearers actual

information by some topics, and by confirming previously used

arguments in the same way. For it is allowable to say something common

when any topic peculiar to the cause is introduced with care; and when

the mind of the hearer is refreshed so as to be inclined to attend to

what follows, or is reawakened by everything which has been already

said. For all the embellishments of elocution, in which there is a

great deal both of sweetness and gravity, and all things, too, which

have any dignity in the invention of words or sentences, are bestowed

upon common topics.

Wherefore there are not as many common topics for orators as there are

for lawyers. For they cannot be handled with elegance and weight, as

their nature requires, except by those who have acquired a great flow

of words and ideas by constant practice. And this is enough for us to

say in a general way concerning the entire class of common topics.

XVI. Now we will proceed to explain what common topics are usually

available in a conjectural statement of a case. As for instance--that

it is proper to place confidence in suspicions, or that it is not

proper, that it is proper to believe witnesses, or that it is not

proper, that it is proper to believe examinations, or that it is not

proper, that it is proper to pay attention to the previous course of a

man's life, or that it is not proper, that it is quite natural that a

man who has done so and so should have committed this crime also, or

that it is not natural, that it is especially necessary to consider

the motive, or that it is not necessary. And all these common topics,

and any others which arise out of any argument peculiar to the cause

in hand, may be turned either way.

But there is one certain topic for an accuser by which he exaggerates

the atrocity of an action, and there is another by which he says that

it is not necessary to pity the miserable. That, too, is a topic for

an advocate for the defence by which the false accusations of the

accusers are shown up with indignation, and that by which pity is

endeavoured to be excited by complaints. These and all other common

topics are derived from the same rules from which the other systems

of arguments proceed, but those are handled in a more delicate, and

acute, and subtle manner, and these with more gravity, and more

embellishment, and with carefully selected words and ideas. For in

them the object is, that that which is stated may appear to be true.

In these, although it is desirable to preserve the appearance of

truth, still the main object is to give importance to the statement.

Now let us pass on to another statement of the case.

XVII. When there is a dispute as to the name of a thing because the

meaning of a name is to be defined by words, it is called a definitive

statement. By way of giving an example of this, the following case may

be adduced. Caius Flaminius, who as consul met with great disasters in

the second Punic war, when he was tribune of the people, proposed, in

a very seditious manner, an agrarian law to the people, against the

consent of the senate, and altogether against the will of all the

nobles. While he was holding an assembly of the people, his own father

dragged him from the temple. He is impeached of treason. The charge

is--"You attacked the majesty of the people in dragging down a tribune

of the people from the temple." The denial is--"I did not attack the

majesty of the people." The question is--"Whether he attacked the

majesty of the people or not?" The argument is--"I only used the power

which I legitimately had over my own son." The denial of this argument

is--"But a man who, by the power belonging to him as a father, that is

to say, as a private individual, attacks the power of a tribune of the

people, that is to say, the power of the people itself, attacks the

majesty of the people." The question for the judges is--"Whether a man

attacks the majesty of the people who uses his power as a father in

opposition to the power of a tribune?" And all the arguments must be

brought to bear on this question.

And, that no one may suppose by any chance that we are not aware that

some other statement of the case may perhaps be applicable to this

cause, we are taking that portion only for which we are going to give

rules. But when all parts have been explained in this book, any one,

if he will only attend diligently, will see every sort of statement

in every sort of cause, and all their parts, and all the discussions

which are incidental to them. For we shall mention them all.

The first topic then for an accuser is a short and plain definition,

and one in accordance with the general opinion of men, of that name,

the meaning of which is the subject of inquiry. In this manner--"To

attack the majesty of the people is to detract from the dignity, or

the rank, or the power of the people, or of those men to whom the

people has given power." This definition being thus briefly set forth

in words, must be confirmed by many assertions and reasons and must

be shown to be such as you have described it. Afterwards it will be

desirable to add to the definition which you have given, the action

of the man who is accused, and to add it too with reference to the

character which you have proved it to have. Take for instance--"to

attack the majesty of the people." You must show that the adversary

does attack the majesty of the people, and you must confirm this whole

topic by a common topic, by which the atrocity or indignity of the

fact, and the whole guilt of it, and also our indignation at it, may

be increased.

After that it will be desirable to invalidate the definition of the

adversaries, but that will be invalidated if it be proved to be false.

This proof must be deduced from the belief of men concerning it,

when we consider in what manner and under what circumstances men

are accustomed to use that expression in their ordinary writing or

talking. It will also be invalidated if the proof of that description

be shown to be discreditable or useless, and if it be shown what

disadvantages will ensue if that position be once admitted. And

it will be derived from the divisions of honour and usefulness,

concerning which we will give rules when we lay down a system

of deliberations. And if we compare the definition given by our

adversaries with our own definition, and prove our own to be true, and

honourable, and useful, and theirs to be entirely different. But we

shall seek out things like them in an affair of either greater, or

less, or equal importance, from which our description will be proved.

XVIII Now, if there be more matters to be defined,--as for instance,

if we inquire whether he is a thief or a sacrilegious person who has

stolen sacred vessels from a private house,--we shall have to employ

many definitions, and then the whole cause will have to be dealt with

on a similar principle. But it is a common topic to dwell on the

wickedness of that man who endeavours to wrest to his own purposes not

only the effect of things, but also the meaning of words, in order

both to do as he pleases, and to call what he does by whatever name he

likes.

Then the first topic to be used by an advocate for the defence, is

also a brief and plain definition of a name, adopted in accordance

with the opinion of men. In this way--To diminish the majesty of the

people is to usurp some of the public powers when you are not invested

with any office. And then the confirmation of this definition is

derived from similar instances and similar principles. Afterwards

comes the separation of one's own action from that definition. Then

comes the common topic by which the expediency or honesty of the

action is increased.

Then comes the reprehension of the definition of the opposite party,

which is also derived from all the same topics as those which we have

prescribed to the accuser. And afterwards other arguments will be

adduced besides the common topic. But that will be a common topic

for the advocate of the defence to use, by which he will express

indignation that the accuser not only alters facts in order to bring

him into danger, but that he attempts also to alter words. For

those common topics which are assumed either for the purpose of

demonstrating the falsehood of the accusations of the prosecutor, or

for exciting pity, or for expressing indignation at an action, or for

the purpose of deterring people from showing pity, are derived from

the magnitude of the danger, not from the nature of the cause.

Wherefore they are incidental not to every cause, but to every

description of cause. We have made mention of them in speaking of the

conjectural statement of a case, but we shall use induction when the

cause requires.

XIX But when the pleading appears to require some translation, or to

need any alteration, either because he is not pleading who ought to

do so, or he is not pleading with the man he ought, or before the men

whom he ought to have for hearers, or in accordance with the proper

law, or under liability to the proper punishment, or in reference to

the proper accusation, or at the proper time, it is then called a

transferable statement of the case. We should require many examples of

this if we were to inquire into every sort of translation, but because

the principle on which the rules proceed is similar, we have no need

of a superfluity of instances. And in our usual practice it happens

from many causes that such translations occur but seldom. For many

actions are prevented by the exceptions allowed by the praetors, and

we have the civil law established in such a way that that man is sure

to lose his cause who does not conduct it as he ought. So that

those actions greatly depend on the state of the law. For there the

exceptions are demanded, and an opportunity is allowed of conducting

the cause in some manner, and every formula of private actions is

arranged. But in actual trials they occur less frequently, and yet, if

they ever do occur at all, they are such that by themselves they have

less strength, but they are confirmed by the assumption of some other

statement in addition to them. As in a certain trial which took place

"When a certain person had been prosecuted for poisoning, and, because

he was also accused of parricide, the trial was ordered to proceed

out of its regular order, when in the accusation some charges were

corroborated by witnesses and arguments, but the parricide was barely

mentioned, it was proper for the advocate for the defence to dwell

much and long on this circumstance, as, nothing whatever was proved

respecting the death of the accused person's parent, and therefore

that it was a scandalous thing to inflict that punishment on him which

is inflicted on parricides, but that that must inevitably be the case

if he were convicted, since that it is added as one of the counts of

the indictment, and since it is on that account that the trial has

been ordered to be taken out of its regular order. Therefore if it is

not right that that punishment should be inflicted on the criminal, it

is also not right that he should be convicted, since that punishment

must inevitably follow a conviction." Here the advocate for the

defence, by bringing the commutation of the punishment into his

speech, according to the transferable class of topics, will invalidate

the whole accusation. But he will also confirm the alteration by a

conjectural statement of the case when employed in defending his

client on the other charges.

XX But we may give an example of translation in a cause, in this

way--When certain armed men had come for the purpose of committing

violence, and armed men were also prepared on the other side, and when

one of the armed men with his sword cut off the hand of a certain

Roman knight who resisted his violence, the man whose hand had been

cut off brings an action for the injury. The man against whom the

action is brought pleads a demurrer before the praetor, without there

being any prejudice to a man on trial for his life. The man who brings

the action demands a trial on the simple fact, the man against whom

the action is brought says that a demurrer ought to be added. The

question is--"Shall the demurrer be allowed or not?" The reason

is--"No, for it is not desirable in an action for damages that there

should be any prejudged decision of a crime, such as is the subject of

inquiry when assassins are on their trial." The arguments intended to

invalidate this reason are--"The injuries are such that it is a shame

that a decision should not be come to as early as possible." The

thing to be decided is--"Whether the atrocity of the injuries is a

sufficient reason why, while that point is before the tribunal, a

previous decision should be given concerning some greater crime,

concerning which a tribunal is prepared." And this is the example. But

in every cause the question ought to be put to both parties, by whom,

and by whose agency, and how, and when it is desirable that the action

should be brought, or the decision given; or what ought to be decided

concerning that matter.

That ought to be assumed from the divisions of the law, concerning

which we must speak hereafter; and we then ought to argue as to what

is usually done in similar cases, and to consider whether, in this

instance, out of wickedness, one course is really adopted and another

pretended; or whether the tribunal has been appointed and the action

allowed to proceed through folly or necessity, because it could not be

done in any other manner, or owing to an opportunity which offered for

acting in such a manner; or whether it has been done rightly without

any interruption of any sort. But it is a common topic to urge against

the man who seeks to avail himself of a demurrer to an action, that

he is fleeing from a decision and from punishment, because he has

no confidence in the justice of his cause. And that, owing to the

demurrer, everything will be in confusion, if matters are not

conducted and brought into court as they ought to be; that is to

say, if it is either pleaded against a man it ought not, or with an

improper penalty, or with an improper charge, or at an improper time;

and this principle applies to any confusion of every sort of tribunal.

Those three statements of cases then, which are not susceptible of any

decisions, must be treated in this manner. At present let us consider

the question and its divisions on general principles.

XXI. When the fact and the name of the action in question is agreed

upon, and when there is no dispute as to the character of the action

to be commenced; then the effect, and the nature, and the character of

the business is inquired into. We have already said, that there appear

to be two divisions of this; one which relates to facts and one which

relates to law. It is like this: "A certain person made a minor his

heir, but the minor died before he had come into the property which

was under the care of guardians. A dispute has arisen concerning

the inheritance which came to the minor, between those who are the

reversionary heirs of the father of the minor,--the possession belongs

to the reversionary heirs." The first statement is that of the next of

kin--"That money, concerning which he, whose next of kin we are, said

nothing in his will, belongs to us." The reply is--"No, it belongs

to us who are the reversionary heirs according to the will of his

father." The thing to be inquired into is--To whom does it rightfully

belong? The argument is--"For the father made a will for himself and

for his son as long as the latter was a minor, wherefore it is

quite clear that the things which belonged to the son are now ours,

according to the will of the father." The argument to upset this

is--"Aye, the father made his own will, and appointed you as

reversionary heir, not to his son, but himself. Wherefore, nothing

except what belonged to him himself can be yours by his will." The

point to be determined is, whether any one can make a will to affect

the property of his son who is a minor, or, whether the reversionary

heirs of the father of the family himself, are not the heirs of his

son also as long as he is a minor. And it is not foreign to the

subject, (in order that I may not, on the one hand, omit to mention

it, or, on the other, keep continually repeating it,) to mention a

thing here which has a bearing on many questions. There are causes

which have many reasons, though the grounds of the cause are simple,

and that is the case when what has been done, or what is being

defended, may appear right or natural on many different accounts, as

in this very cause. For this further reason may be suggested by the

heirs--"For there cannot be more heirs than one of one property, for

causes quite dissimilar, nor has it ever happened, that one man was

heir by will, and another by law, of the same property." This, again,

is what will be replied, in order to invalidate this--"It is not one

property only; because one part of it was the adventitious property of

the minor, whose heir no one had been appointed by will at that time,

in the case of anything happening to the minor, and with respect to

the other portion of the property, the inclination of the father, even

after he was dead, had the greatest weight, and that, now that the

minor is dead, gives the property to his own heirs."

The question to be decided is, "Whether it was one property?" And

then, if they employ this argument by way of invalidating the other,

"That there can be many heirs of one property for quite dissimilar

causes," the question to be decided arises out of that argument,

namely "Whether there can be more heirs than one, of different classes

and character, to one property?"

XXII Therefore, in one statement of the case, it has been understood

how there are more reasons than one, more topics than one to

invalidate such reasons, and besides that, more questions than one for

the decision of the judge. Now let us look to the rules for this class

of question. We must consider in what the rights of each party, or of

all the parties (if there are many parties to the suit), consist. The

beginning, then, appears derived from nature; but some things seem to

have become adopted in practice for some consideration of expediency

which is either more or less evident to us. But afterwards things

which were approved of, or which seemed useful, either through habit,

or because of their truth, appeared to have been confirmed by laws,

and some things seem to be a law of nature, which it is not any

vague opinion, but a sort of innate instinct that implants in us,

as religion, piety, revenge for injuries, gratitude, attention to

superiors, and truth. They call religion, that which is conversant

with the fear of, and ceremonious observance paid to the gods; they

call that piety, which warns us to fulfil our duties towards our

country, our parents, or others connected with us by ties of blood,

gratitude is that which retains a recollection of honours and benefits

conferred on one, and acts of friendship done to one, and which shows

itself by a requital of good offices, revenge for injuries is that by

which we repel violence and insult from ourselves and from those who

ought to be dear to us, by defending or avenging ourselves, and by

means of which we punish offences, attention to superiors, they call

the feeling under the influence of which we feel reverence for and pay

respect to those who excel us in wisdom or honour or in any dignity,

truth, they style that habit by which we take care that nothing has

been or shall be done in any other manner than what we state. And the

laws of nature themselves are less inquired into in a controversy of

this sort, because they have no particular connexion with the civil

law of which we are speaking and also, because they are somewhat

remote from ordinary understandings. Still it is often desirable to

introduce them for the purpose of some comparison, or with a view to

add dignity to the discussion.

But the laws of habit are considered to be those which without any

written law, antiquity has sanctioned by the common consent of all

men. And with reference to this habit there are some laws which are

now quite fixed by their antiquity. Of which sort there are many other

laws also, and among them far the greatest part of those laws which

the praetors are in the habit of including in their edicts. But some

kinds of law have already been established by certain custom, such as

those relating to covenants, equity, formal decisions. A covenant

is that which is agreed upon between two parties, because it is

considered to be so just that it is said to be enforced by justice,

equity is that which is equal to all men, a formal decision is that by

which something has been established by the declared opinion of some

person or persons authorized to pronounce one. As for regular laws,

they can only be ascertained from the laws. It is desirable, then, by

trying over every part of the law, to take notice of and to extract

from these portions of the law whatever shall appear to arise out of

the case itself, or out of a similar one, or out of one of greater or

less importance. But since, as has been already said, there are two

kinds of common topics, one of which contains the amplification of a

doubtful matter, and the other of a certain one, we must consider what

the case itself suggests, and what can be and ought to be amplified by

a common topic. For certain topics to suit every possible case cannot

be laid down, and perhaps in most of them it will be necessary at

times to rely on the authority of the lawyers, and at times to speak

against it. But we must consider, in this case and in all cases,

whether the case itself suggests any common topics besides those which

we have mentioned.

Now let us consider the juridical kind of inquiry and its different

divisions. XXIII The juridical inquiry is that in which the nature of

justice and injustice, and the principle of reward or punishment, is

examined. Its divisions are two, one of which we call the absolute

inquiry, and the other the one which is accessory. That is the

absolute inquiry which itself contains in itself the question of right

and not right, not as the inquiry about facts does, in an overhand and

obscure manner, but openly and intelligibly. It is of this sort.--When

the Thebans had defeated the Lacedaemonians in war, as it was nearly

universal custom among the Greeks, when they were waging war against

one another, for those who were victorious to erect some trophy

on their borders, for the sake only of declaring their victory at

present, not that it might remain for ever as a memorial of the war,

they erected a brazen trophy. They are accused before the Amphictyons,

that is, before the common council of Greece. The charge is, "They

ought not to have done so." The denial is, "We ought." The question

is, "Whether they ought." The reason is, "For we gained such glory

by our valour in that war, that we wished to leave an everlasting

memorial of it to posterity." The argument adduced to invalidate this

is, "But still it is not right for Greeks to erect an eternal memorial

of then enmity to Greeks." The question to be decided is, "As for the

sake of celebrating their own excessive valour Greeks have erected an

imperishable monument of their enmity to Greeks, whether they have

done well or ill?" We, therefore, have now put this reason in the

mouth of the Thebans, in order that this class of cause which we

are now considering might be thoroughly understood. For if we had

furnished them with that argument which is perhaps the one which

they actually used, "We did so because our enemies warred against us

without any considerations of justice and piety," we should then be

digressing to the subject of retorting an accusation, of which we will

speak hereafter. But it is manifest that both kinds of question are

incidental to this controversy. And arguments must be derived for

it from the same topics as those which are applicable to the cause

depending on matters of fact, which has been all ready treated of.

But to take many weighty common topics both from the cause itself, if

there is any opportunity for employing the language of indignation or

complaint, and also from the advantage and general character of the

law, will be not only allowable, but proper, if the dignity of the

cause appears to require such expedients.

XXIV. At present let us consider the assumptive portion of the

juridical inquiry. But it is then called assumptive, when the fact

cannot be proved by its own intrinsic evidence, but is defended by

some argument brought from extraneous circumstances. Its divisions

are four in number: comparison, the retort of the accusation, the

refutation of it as far as regards oneself, and concession.

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.

But comparison itself, when separated from the other kinds of

discussion, will be considered according to its own intrinsic power,

if that which is mentioned in the comparison is shown, either not to

have been honourable, or not to have been useful, or not to have been

necessary, or not so greatly useful, or not so very honourable, or not

so exceedingly necessary.

In the next place it is desirable for the accuser to separate the

action which he himself is accusing, from that which the advocate for

the defence compares with it. And he will do that if he shows that it

is not usually done in such a manner, and that it ought not to be done

so, and that there is no reason why this thing should be done on this

account; for instance, that those things which have been provided for

the sake of safety, should be surrendered to the enemy for the sake of

safety. Afterwards it will be desirable to compare the injury with the

benefit, and altogether to compare the action which is impeached with

that which is praised by the advocate for the defence or which is

attempted to be proved as what must inevitably have ensued, and then,

by disparaging the one at the same time to exaggerate the importance

of the mischief caused by the other. That will be effected if it

be shown that that which the person on his trial avoided was more

honourable, more advantageous, and more necessary than that which

he did. But the influence and character of what is honourable, and

useful, and necessary, will be ascertained in the rules given for

deliberation.

In the next place, it will be desirable to explain that comparative

kind of judicial decision as if it were a deliberative cause and

then afterwards to discuss it by the light thrown on it by rules for

deliberation. For let this be the question for judicial decision which

we have already mentioned--"As all the soldiers would have been lost

if they had not come to this agreement, was it better for the soldiers

to be lost, or to come to this agreement?" It will be desirable that

this should be dealt with with reference to the topics concerning

deliberation, as if the matter were to come to some consultation.

XXVI. But the advocate for the defence will take the topics in

accordance with which other statements of the case are made by the

accuser, and will prepare his own defence from those topics with

reference to the same statements. But all other topics which belong to

the comparison, he will deal with in the contrary manner.

The common topics will be these,--the accuser will press his charges

against the man who confesses some discreditable or pernicious action,

or both, but still seeks to make some defence, and will allege

the mischievous or discreditable nature of his conduct with great

indignation. The advocate for the defence will insist upon it, that no

action ought to be considered pernicious or discreditable, or, on the

other hand, advantageous or creditable, unless it is ascertained with

what intention, at what time, and on what account it was done. And

this topic is so common, that if it is well handled in this cause it

is likely to be of great weight in convincing the hearers. And there

is another topic, by means of which the magnitude of the service done

is demonstrated with very great amplification, by reference to the

usefulness, or honourableness, or necessity of the action. And there

is a third topic, by means of which the matter which is expressed in

words is placed before the eyes of those men who are the hearers, so

that they think that they themselves also would have done the same

things, if the same circumstances and the same cause for doing so had

happened to them at the same time.

The retorting of a charge takes place, when the accused person,

having confessed that of which he is accused, says that he did it

justifiably, being induced by the sin committed against him by the

other party. As in this case--"Horatius, when he had slain the three

Curiatii and lost his two brothers, returned home victorious. He saw

his sister not troubled about the death of her brothers, but at the

same time calling on the name of Curiatius, who had been betrothed to

her, with groans and lamentation. Being indignant, he slew the maid".

He is prosecuted.

The charge is, "You slew your sister wrongfully". The refutation is "I

slew her lawfully". The question is, "Whether he slew her lawfully".

The reason is, "Yes, for she was lamenting the death of enemies, and

was indifferent to that of her brothers, she was grieved that I and

the Roman people were victorious". The argument to invalidate this

reason is, "Still she ought not to have been put to death by her

brother without being convicted". On this the question for the

decision of the judges is, "Whether when Horatia was showing her

indifference to the death of her brothers, and lamenting that of the

enemy, and not rejoicing at the victory of her brother and of the

Roman people, she deserved to be put to death by her brother without

being condemned".

XXVII For this kind of cause, in the first place, whatever is given

out of the other statements of cases ought to be taken, as has been

already enjoined when speaking of comparison. After that, if there is

any opportunity of doing so, some statement of the case ought to be

employed by which he to whom the crime is imputed may be defended. In

the next place, we ought to argue that the fault which the accused

person is imputing to another, is a lighter one than that which he

himself committed; in the next place, we ought to employ some portion

of a demurrer, and to show by whom, and through whose agency, and

how, and when that matter ought to have been tried, or adjudged, or

decided. And at the same time, we ought to show that it was not proper

that punishment should have been inflicted before any judgment was

pronounced. Then we must also point out the laws and the course of

judicial proceeding by which that offence which the accused person

punished of his own accord, might have been chastised according to

precedent, and by the regular course of justice. In the next place, it

will be right to deny that it is proper to listen to the charge which

is brought by the accused person against his victim, when he who

brings it did not choose to submit it to the decision of the judges,

and it may be urged that one ought to consider that on which no

decision has been pronounced, as if it had not been done, and after

that to point out the impudence of those men who are now before

the judges accusing the man whom they themselves condemned without

consulting the judges, and are now bringing him to trial on whom they

have already inflicted punishment. After this we may say that it is

bringing irregularity into the courts of justice, and that the judges

will be advancing further than their power authorizes them, if they

pronounce judgment at the same time in the case of the accused person,

and of him whom the accused person impeaches. And in the next place,

we may point out if this rule is established, and if men avenge one

offence by another offence, and one injury by another injury, what

vast inconvenience will ensue from such conduct, and that if the

person who is now the prosecutor had chosen to do so too, there would

have been no need of this trial at all, and that if every one else

were to do so, there would be an end of all courts of justice.

After that it may be pointed out, that even if the maiden who is now

accused by him of this crime had been convicted, he would not himself

have had any right to inflict punishment on her, so that it is a

shameful thing that the man who would have had no right to punish her,

even if she had been convicted, should have punished her without her

being even brought to trial at all. And then the accused person may

be called upon to produce the law which he says justifies his having

acted in such a manner.

After that, as we have enjoined when speaking of comparison, that that

which is mentioned in comparison should be disparaged by the accuser

as much as possible, so, too, in this kind of argument, it will be

advantageous to compare the fault of the party on whom the accusation

is retorted with the crime of the accused person who justified his

action as having been lawfully done. And after that it is necessary to

point out that that is not an action of such a sort, that on account

of it this other crime ought to have been committed. The last point,

as in the case of comparison, is the assumption of a judicial

decision, and the dilating upon it in the way of amplification, in

accordance with the rules given respecting deliberation.