XXVIII But the advocate for the defence will invalidate what is urged

by means of other statements from those topics which have already been

given. But the demurrer itself he will prove first of all, by dwelling

on the guilt and audacity of the man to whom he imputes the crime, and

by bringing it before the eyes of the judges with as much indignation

as possible if the case admits of it, and also with vehement

complaint, and afterwards by proving that the accused person chastised

the offence more lightly than the offender deserved, by comparing the

punishment inflicted with the injury done. In the next place, it will

be desirable to invalidate by opposite arguments those topics which

are handled by the prosecutor in such a way that they are capable of

being refuted and retorted, of which kind are the three last topics

which I have mentioned. But that most vehement attack of the

prosecutors, by which they attempt to prove that irregularity will be

introduced into all the courts of justice if power is given to any man

of inflicting punishment on a person who has not been convicted, will

have its force much weakened, first of all, if the injury be shown to

be such as appears intolerable not only to a good man but absolutely

to any freeman, and in the next place to be so manifest that it could

not have been denied even by the person who had done it, and moreover,

of such a kind that the person who did chastise it was the person

who above all others was bound to chastise it. So that it was not so

proper nor so honourable for that matter to be brought before a court

of justice as for it to be chastised in that manner in which, and by

that person by whom it was chastised, and lastly, that the case was

so notorious that there was no occasion whatever for a judicial

investigation into it. And here it will be proper to show, by

arguments and by other similar means, that there are very many things

so atrocious and so notorious, that it is not only not necessary, but

that it is not even desirable to wait for the slow proceedings of a

judicial trial.

There is a common topic for an accuser to employ against a person,

who, when he cannot deny the fact of which he is accused, still

derives some hope from his attempt to show that irregularity will be

introduced into all courts of justice by such proceedings. And here

there will come in the demonstration of the usefulness of judicial

proceedings, and the complaint of the misfortune of that person who

has been punished without being condemned; and the indignation to

be expressed against the audacity and cruelty of the man who has

inflicted the punishment. There is also a topic for the advocate for

the defence to employ, in complaining of the audacity of the person

whom he chastised; and in urging that the case ought to be judged

of, not by the name of the action itself, but with reference to the

intention of the person who committed it, and the cause for which, and

the time at which it was committed. And in pointing out what great

mischief will ensue either from the injurious conduct, or the

wickedness of some one, unless such excessive and undisguised audacity

were chastised by him whose reputation, or parents, or children, or

something else which either necessarily is, or at least ought to be

dear to every one, is affected, by such conduct.

XXIX. The transference of an accusation takes place when the

accusation of that crime which is imputed to one by the opposite party

is transferred to some other person or circumstance. And that is done

in two ways. For sometimes the motive itself is transferred,

and sometimes the act. We may employ this as an instance of the

transference of the motive:--"The Rhodians sent some men as

ambassadors to Athens. The quaestors did not give the ambassadors the

money for their expenses which they ought to have given them. The

ambassadors consequently did not go. They are impeached." The charge

brought against them is, "They ought to have gone." The denial is,

"They ought not." The question is, "Whether they ought." The reason

alleged is, "Because the money for their expenses, which is usually

given to ambassadors from the public treasury, was not given to them

by the quaestor." The argument brought to invalidate that reason is,

"Still you ought to have discharged the duty which was entrusted to

you by the public authority." The question for the decision of the

judges is, "Whether, as the money which ought to have been supplied

from the public treasury was not furnished to those men who were

appointed ambassadors, they were nevertheless bound to discharge the

duties of their embassy." In this class of inquiry, as in all the

other kinds, it will be desirable to see if anything can be assumed,

either from a conjectural statement of the case, or from any other

kind of statement. And after that, many arguments can be brought to

bear on this question, both from comparison, and from the transference

of the guilt to other parties.

But the prosecutor will, in the first place, if he can, defend the man

through whose fault the accused person says that that action was done;

and if he cannot, he will declare that the fault of the other party

has nothing to do with this trial, but only the fault of this man whom

he himself is accusing. Afterwards he will say that it is proper for

every one to consider only what is his own duty; and that if the one

party did wrong, that was no reason for the other doing wrong too. And

in the next place, that if the other man has committed a fault, he

ought to be accused separately as this man is, and that the accusation

of the one is not to be mixed up with the defence of the other.

But when the advocate for the defence has dealt with the other

arguments, if any arise out of other statements of the case, he will

argue in this way with reference to the transference of the charge to

other parties. In the first place, he will point out to whose fault

it was owing that the thing happened; and in the next place, as it

happened in consequence of the fault of some one else, he will point

out that he either could not or ought not to have done what the

prosecutor says he ought: that he could not, will be considered with

reference to the particulars of expediency, in which the force of

necessity is involved; that he ought not, with reference to the

honourableness of the proceeding. We will consider each part more

minutely when talking of the deliberative kind of argument. Then

he will say, that everything was done by the accused person which

depended on his own power; that less was done than ought to have been,

was the consequence of the fault of another person. After that,

in pointing out the criminality of that other person, it will be

requisite to show how great the good will and zeal of the accused

person himself was. And that must be established by proofs of this

sort--by his diligence in all the rest of the affair, by his previous

actions, or by his previous expressions. And it may be well to show

that it would have been advantageous to the man himself to have done

this, and disadvantageous not to have done it, and that to have done

it would have been more in accordance with the rest of his life, than

the not having done it, which, was owing to the fault of the other

party.

XXX But if the criminality is not to be transferred to some particular

person, but to some circumstance, as in this very case--"If the

quaestor had been dead, and on that account the money had not been

given to the ambassadors," then, as the accusation of the other party,

and the denial of the fault is removed, it will be desirable to employ

the other topics in a similar manner, and to assume whatever is

suitable to one's purpose from the divisions of admitted facts. But

common topics are usually nearly the same to both parties, and then,

after the previous topics are taken for granted, will suit either to

the greatest certainty. The accuser will use the topic of indignation

at the fact, the defender, when the guilt belongs to another and does

not attach to himself, will urge that he does not deserve to have any

punishment inflicted on him.

But the removal of the criminality from oneself is effected when the

accused person declares, that what is attributed to him as a crime

did not affect him or his duty, and asserts that if there was any

criminality in it, it ought not to be attributed to him. That kind of

dispute is of this sort--"In the treaty which was formerly made with

the Samnites, a certain young man of noble birth held the pig which

was to be sacrificed, by the command of the general. But when the

treaty was disavowed by the senate, and the general surrendered to the

Samnites, one of the senators asserted that the man who held the pig

ought also to be given up." The charge is, "He ought to be given up."

The denial is, "He ought not." The question is, "Whether he ought or

not." The reason is, "For it was no particular duty of mine, nor did

it depend on my power, being as young as I was, and only a private

individual, and while the general was present with the supreme

authority and command, to take care that the treaty was solemnised

with all the regular formalities." The argument to invalidate this

reason is, "But since you became an accomplice in a most infamous

treaty, sanctioned with the most formal solemnities of religion, you

ought to be surrendered." The question for the judges to decide is

"Whether, since a man who had no official authority was present, by

the command of the general, aiding and abetting in the adopting of

the treaty, and in that important religious ceremony, he ought to be

surrendered to the enemy or not." This kind of question is so far

different from the previous one, because in that the accused person

admits that he ought to have done what the prosecutor says ought

to have been done, but he attributes the cause to some particular

circumstance or person, which was a hindrance to his own intention,

without having recourse to any admission. For that has greater force,

which will be understood presently. But in this case a man ought

not to accuse the opposite party, nor to attempt to transfer the

criminality to another, but he ought to show that that has not and

never has had any reference whatever to himself, either in respect

of power or duty. And in this kind of cause there is this new

circumstance, that the prosecutor often works up a fresh accusation

out of the topics employed, to remove the guilt from the accused

person. As for instance,--"If any one accuses a man who, while he was

praetor, summoned the people to take up arms for an expedition, at

a time when the consuls were in the city." For as in the previous

instance the accused person showed that the matter in question had

no connexion with his duty or his power, so in this case also, the

prosecutor himself, by removing the action done from the duty and

power of the person who is put on his trial, confirms the accusation

by this very argument. And in this case it will be proper for each

party to examine, by means of all the divisions of honour and

expediency, by examples, and tokens, and by arguing what is the duty,

or right, or power of each individual, and whether he had that right,

and duty, and power which is the subject of the present discussion, or

not. But it will be desirable for common topics to be assumed from the

case itself, if there is any room in it for expressions of indignation

or complaint.

XXI. The admission of the fact takes place, when the accused person

does not justify the fact itself, but demands to be pardoned for it.

And the parts of this division of the case are two: purgation and

deprecation. Purgation is that by which (not the action, but) the

intention of the person who is accused, is defended. That has three

subdivisions,--ignorance, accident, necessity.

Ignorance is when the person who is accused declares that he did not

know something or other. As, "There was a law in a certain nation

that no one should sacrifice a calf to Diana. Some sailors, when in a

terrible tempest they were being tossed about in the open sea, made a

vow that if they reached the harbour which they were in sight of, they

would sacrifice a calf to the god who presided over that place. Being

ignorant of the law, when they landed, they sacrificed a calf." They

are prosecuted. The accusation is, "You sacrificed a calf to a god to

whom it was unlawful to sacrifice a calf." The denial consists in the

admission which has been already stated. The reason is, "I was not

aware that it was unlawful." The argument brought to invalidate that

reason is, "Nevertheless, since you have done what was not lawful, you

are according to the law deserving of punishment." The question for

the decision of the judge is, "Whether, as he did what he ought not to

have done, and was not aware that he ought not to have done so, he is

worthy of punishment or not."

But accident is introduced into the admission when it is proved that

some power of fortune interfered with his intention; as in this

case:--"There was a law among the Lacedaemonians, that if the

contractor failed to supply victims for a certain sacrifice, he should

be accounted guilty of a capital offence; and accordingly, the man who

had contracted to supply them, when the day of the sacrifice was at

hand, began to drive in cattle from the country into the city. It

happened on a sudden that the river Eurotus, which flows by Lacedaemon,

was raised by some violent storms, and became so great and furious

that the victims could not by any possibility be conveyed across. The

contractor, for the sake of showing his own willingness, placed all

the victims on the bank of the river, in order that every one on

the other side of the river might be able to see them. But though,

everyone was aware that it was the unexpected rise of the river

which hindered him from giving effect to his zeal, still some people

prosecuted him on the capital charge." The charge was, "The victims

which you were bound to furnish for the sacrifice were not furnished."

The reply was an admission of the fact. The reason alleged was, "For

the river rose on a sudden, and on that account it was impossible to

convey them across." The argument used to invalidate that reason

was, "Nevertheless, since what the law enjoins was not done, you are

deserving of punishment." The question for the decision of the judges

was, "Whether, as in that respect the contractor did not comply with

the law, being prevented by the unexpected rise of the river

which hindered his giving effect to his zeal, he is deserving of

punishment."

XXXII. But the plea of necessity is introduced when the accused person

is defended as having done what he is accused of having done under

the influence of compulsion. In this way:--"There is a law among the

Rhodians, that if any vessel with a beak is caught in their harbour,

it shall be confiscated. There was a violent storm at sea; the

violence of the winds compelled a vessel, against the will of her

crew, to take refuge in the harbour of the Rhodians. On this the

quaestor claims the vessel for the people. The captain of the ship

declared that it was not just that it should be confiscated." The

charge is, "A ship with a beak was caught in the harbour." The reply

is an admission of the fact. The reason given is, "We were driven

into the harbour by violence and necessity." The argument brought to

invalidate that reason is, "Nevertheless, according to the law that

ship ought to become the property of the people." The question for the

decision of the judge is, "Whether, as the law confiscates every ship

with a beak which is found in the harbour, and as this ship, in spite

of the endeavours of her crew, was driven into the harbour by the

violence of the tempest, it ought to be confiscated."

We have collected these examples of these three kinds of cases into

one place, because a similar rule for the arguments required for these

prevails in all of them. For in all of them, in the first place, it

is desirable, if the case itself affords any opportunity of doing so,

that a conjecture should be introduced by the accuser, in order that

that which it will be stated was not done intentionally, may be

demonstrated by some suspicious circumstances, to have been done

intentionally. In the next place, it will be well to introduce a

definition of necessity, or of accident, or of ignorance, and to add

instances to that definition, in which ignorance, or accident, or

necessity appear to have operated, and to distinguish between such

instances and the allegations put forward by the accused person, (that

is to say, to show that there is no resemblance between them,) because

this was a lighter or an easier matter, or one which did not admit of

any one's being ignorant respecting it, or one which gave no room for

accident or necessity. After that it must be shown that it might have

been avoided, and, that the accused person might have prevented it if

he had done this thing, or that thing, or that he might have guarded

against being forced to act in such a manner. And it is desirable to

prove by definitions that this conduct of his ought not to be called

imprudence, or accident, or necessity, but indolence, indifference, or

fatuity.

And if any necessity alleged appears to have in it anything

discreditable, it will be desirable for the opponent, by a chain of

common topics, to prove that it would have been better to suffer

anything, or even to die, rather than to submit to a necessity of the

sort. And then, from these topics, which have been already discussed

when we spoke of the question of fact, it will be desirable to inquire

into the nature of law and equity, and, as if we were dealing with

an absolute juridical question, to consider this point by itself

separately from all other points. And in this place, if there should

be an opportunity, it will be desirable to employ instances in which

there can be no room for any similar excuse, and also to institute a

comparison, showing that there would have been more reason to allow it

in them, and by reference to the divisions of deliberation, it may be

shown that it is admitted that that action which was committed by the

adversary is confessed to have been discreditable and useless, that

it is a matter of great importance, and one likely to cause great

mischief, if such conduct is overlooked by those who have authority to

punish it.

XXXIII. But the advocate for the defence will be able to convert all

these arguments, and then to use them for his own purposes. And

he will especially dwell on the defence of his intentions, and in

exaggerating the importance of that which was an obstacle to his

intentions, and he will show that he could not have done more than he

did do, and he will urge that in all things the will of the doer ought

to be regarded, and that it is quite impossible that he should be

justly convicted of not being free from guilt, and that under his name

the common powerlessness of mankind is sought to be convicted. Then,

too, he will say that nothing can be more scandalous than for a man

who is free from guilt, not also to be free from punishment. But the

common topics for the prosecutor to employ are these, one resting on

the confession of the accused person, and the other pointing out what

great licence for the violation of the law will follow, if it is once

laid down that the thing to be inquired into is not the action but

the cause of the action. The common topics for the advocate for the

defence to employ are, a complaint of that calamity which has taken

place by no fault of his, but in consequence of some overruling power,

and a complaint also of the power of fortune and the powerless

state of men, and an entreaty that the judges should consider his

intentions, and not the result. And in the employment of all these

topics it will be desirable that there should be inserted a complaint

of his own unhappy condition, and indignation at the cruelty of his

adversaries.

And no one ought to marvel, if in these or other instances he sees

a dispute concerning the letter of the law added to the rest of the

discussion. And we shall have hereafter to speak of this subject

separately, because some kinds of causes will have to be considered by

themselves, and with reference to their own independent merits,

and some connect with themselves some other kind of question also.

Wherefore, when everything is cleared up, it will not be difficult to

transfer to each cause whatever is suitable to that particular kind of

inquiry, as in all these instances of admission of the fact, there is

involved that dispute as to the law, which is called the question as

to the letter and spirit of the law. But as we were speaking of the

admission of the fact we gave rules for it. But in another place we

will discuss the letter and the spirit of the law. At present we will

limit our consideration to the other division of the admission of the

fact.

XXXIV. Deprecation is when it is not attempted to defend the action

in question, but entreaties to be pardoned are employed. This kind of

topic can hardly be approved of in a court of justice, because, when

the offence is admitted, it is difficult to prevail on the man who

is bound to be the chastiser of offences to pardon it. So that it is

allowable to employ that kind of address only when you do not rest the

whole cause on it. As for instance, if you were speaking in behalf of

some illustrious or gallant man, who has done great services to

the republic, you might, without appearing to have recourse to

deprecation, still employ it in this manner:--"But if, O judges, this

man, in return for the services which he has done you, and the zeal

which he has displayed in your cause at all times, were now, when he

himself is in such peril, to entreat you, in consideration of his many

good actions, to pardon this one error, it would only be what is due

both to your own character for clemency, and to his virtue, O judges,

for you to grant him this indulgence at his request." Then it will be

allowable to dwell upon the services which he has done, and by the

use of some common topic to lead the judges to feel an inclination to

pardon him.

Wherefore, although this kind of address has no proper place in

judicial proceedings, except to a certain limited extent; still,

because both the portion which is allowable must be employed at times,

and because it is often to be employed in all its force in the senate

or in the council, we will give rules for it also. For there was a

long deliberation in the senate and in the council about Syphax; and

there was a long discussion before Lucius Opimius and his bench of

assessors respecting Quintus Numitorius Pullus; and in this case the

entreaty for pardon had more influence than the strict inquiry into

the case. For he did not find it so easy to prove that he had always

been well affected towards the Roman people, by employing the

statement of the case founded on conjecture, as to show that it was

reasonable to pardon him on account of his subsequent services, when

he added the topics of deprecation to the rest of his defence.

XXXV. It will be desirable, therefore, for the man who entreats to be

pardoned for what he admits that he has done, to enumerate whatever

services of his he is able to, and, if possible, to show that they are

greater than those offences which he has committed, so that it may

appear that more good than evil has proceeded from him; and then to

put forward also the services done by his ancestors, if there are any

such; and also to show that he did what he did, not out of hatred, or

out of cruelty, but either through folly, or owing to the instigation

of some one, or for some other honourable or probable cause; and after

that to promise and undertake that he has been taught by this error of

his, and confirmed in his resolution also by the kindness of those who

pardon him, to avoid all such conduct in future. And besides this, he

may hold out a hope that he will hereafter be able, in some respect or

other, to be of great use to those who pardon him now; he will find it

serviceable to point out that he is either related to the judges,

or that he has been as far back as possible an hereditary friend

of theirs; and to express to them the earnestness of his good-will

towards them, and the nobility of the blood and dignity of those

men who are anxious for his safety. And all other qualities and

circumstances which, when attributable to persons, confer honour and

dignity on them, he, using no complaint, and avoiding all arrogance,

will point out as existing in himself, so that he may appear to

deserve some honour rather than any kind of punishment; and after that

it will be wise of him to mention other men who have been pardoned for

greater offences.

And he will do himself a great deal of good if he shows that he

himself, when in power, was merciful and inclined to pardon others.

And the offence of which he is now accused must be extenuated and

made to appear as trifling as possible; and it must be shown to be

discreditable, or at all events inexpedient, to punish such a man as

he is. After that it will be advisable to seek to move pity by use of

common topics, according to those rules which have been laid down in

the first book.

XXXVI. But the adversary will exaggerate the offences; he will say

that nothing was done ignorantly, but that everything was the result

of deliberate wickedness and cruelty. He will show that the accused

person has been pitiless, arrogant, and (if he possibly can) at all

times disaffected, and that he cannot by any possibility be rendered

friendly. If he mentions any services done by him, he will prove that

they were done for some private object, and not out of any good will;

or else he will prove that he has conceived hatred since or else that

all those services have been effaced by his frequent offences, or else

that his services are of less importance than his injuries, or that,

as he has already received adequate honours for his services, he ought

also to have punishment inflicted on him for the injuries which he has

committed. In the next place, he will urge that it is discreditable or

pernicious that he should be pardoned. And besides that, it will be

the very extremity of folly not to avail oneself of one's power over

a man, over whom one has often wished to have power, and that it is

proper to consider what feelings, or rather what hatred they ought to

entertain towards him. But one common topic to be employed will be

indignation at his offence, and another will be the argument, that it

is right to pity those who are in distress, owing to misfortune, and

not those who are in such a plight through their own wickedness.

Since, then, we have been dwelling so long on the general statement of

the case, on account of the great number of its divisions, in order

to prevent any one's mind from being so distracted by the variety

and dissimilarity of circumstances, and so led into some errors,

it appears right also to remind the reader of what remains to be

mentioned of that division of the subject, and why it remains. We have

said, that that was the juridical sort of examination in which

the nature of right and wrong, and the principles of reward and

punishment, were investigated. We have explained the causes in which

inquiry into right and wrong is proceeded with. It remains now to

explain the principles which regulate the distribution of rewards and

punishments.

XXXVII. For there are many causes which consist of a demand of some

reward. For there is often question before the judges of the rewards

to be conferred on prosecutors, and very often some reward is claimed

for them from the senate, or from the bench of judges. And it is not

advisable that any one should think that, when we are adducing some

instance which is under discussion in the senate, we by so doing are

abandoning the class of judicial examples. For whatever is said

with reference to approving or disapproving of a person, when the

consideration of the opinions of the judges is adapted to that form of

expression, that, even although it is treated with reference to the

language in which the opinion is couched, is a deliberative argument,

still, because it has especial reference to some person, it is to be

accounted also judicial. And altogether, a man who has diligently

investigated the meaning and nature of all causes will perceive that

they differ both in character and in form; but in the other divisions

he will see them all consistent with each other, and every one

connected with the other. At present, let us consider the question of

rewards. Lucius Licinius Crassus, the consul, pursued and destroyed a

band of people in the province of the Nearer Gaul, who were collected

together under no known or regular leader, and who had no name or

number of sufficient importance to be entitled enemies of the Roman

people; but still they made the province unsafe by their constant

sallies and piratical outbreaks. He returns to Rome. He demands a

triumph. Here, as also in the case of the employment of deprecation,

it does not at all concern us to supply reasons to establish and to

invalidate such a claim, and so to come before the judges; because,

unless some other statement of the case is also put forth, or some

portion of such statement, the matter for the decision of the judges

will be a simple one, and will be contained in the question itself. In

the case of the employment of deprecation, in this manner: "Whether

so and so ought to be punished." In this instance, in such a manner:

"Whether he ought to be rewarded."

Now we will furnish some topics suitable for the investigation into

the principles of rewards.

XXXVIII. The principle, then, on which rewards are conferred is

distributable into four divisions: as to the services done; the person

who has done them; the kind of reward which is to be conferred; and

the means of conferring it. The services done will be considered with

reference to their own intrinsic merits, and to the time, and to

the disposition of the man who did them, and to their attendant

circumstances. They will be examined with reference to their own

intrinsic merits, in this manner:--Whether they are important or

unimportant; whether they were difficult or easy; whether they are

of a common or extraordinary nature; whether they are considered

honourable on true or false principles. And with reference to the time

at which they were done:--If they were done at a time when we had need

of them; when other men could or would not help them; if they were

done when all other hope had failed. With reference to the disposition

of the man who did them:--If he did not do them with a view to any

advantage of his own, but if he did everything else for the express

purpose of being able to do this afterwards. And with reference to the

attendant circumstances:--If what was done appears not to have been

done by chance, but in consequence of some deliberate design, or if

chance appears to have hindered the design.

But, with respect to the man who did the service in question, it will

be requisite to consider in what manner he has lived, and what expense

or labour he has devoted to that object; whether he has at any time

done any other similar action; whether he is claiming a reward

for himself for what is in reality the result of another person's

exertions, or of the kindness of the gods. Whether he has ever, in the

case of any one else, pronounced that he ought not to be rewarded for

such a reason; or, whether he has already had sufficient honour paid

to him for what he has done; or, whether what has been done is an

action of such a sort that, if he had not done it, he would have been

deserving of punishment; but that he does not deserve reward for

having done it; or, whether he is premature in his demand for a

reward, and is proposing to sell an uncertain hope for a certain

reward; or, whether he claims the reward in order to avoid some

punishment, by its appearing as if the case had already been decided

in his favour.

XXXIX. But as to the question of the reward, it will be necessary to

consider what reward, how great a reward is claimed, and why it is

claimed; and also, to what reward, and to how great a reward, the

conduct in question is entitled. And in the next place, it will be

requisite to inquire what men had such honours paid them in the time

of our ancestors, and for what causes those honours were paid. And, in

the next place, it will be urged that they ought not to be made too

common. And this will be one common topic for any one who speaks in

opposition to a person who claims a reward;--that rewards for virtue

and eminent services ought to be considered serious and holy things,

and that they ought not to be conferred on worthless men, or to be

made common by being bestowed on men of no particular eminence. And

another will be, to urge that men will become less eager to practise

virtue when the reward of virtue has been made common; for those

things which are scarce and difficult of attainment appear honourable

and acceptable to men. And a third topic is, to put the question,

whether, if there are any instances of men who, in the times of our

ancestors, were thought worthy of such honours on account of their

eminent virtue, they will not be likely to think it some diminution

of their own glory, when they see that such men as these have such

rewards conferred on them. And then comes the enumeration of those

men, and the comparison of them with those against whom the orator is

speaking. But the topics to be used by the man who is claiming the

reward are, first of all, the exaggeration of his own action; and

next, the comparison of the actions of those men who have had rewards

conferred on them with his own; and lastly, he will urge that other

men will be repelled from the pursuit of virtue if he himself is

denied the reward to which he is entitled.

But the means of conferring the rewards are taken into consideration

when any pecuniary reward is asked for; for then it is necessary to

consider whether there is an abundance of land, and revenue, and

money, or a dearth of them. The common topics are,--that it is

desirable to increase the resources of the state, not to diminish

them; and that he is a shameless man who is not content with gratitude

in requital of his services, but who demands also solid rewards. But,

on the other hand, it may be urged, that it is a sordid thing to

argue about money, when the question is about showing gratitude to a

benefactor; and that the claimant is not asking wages for a piece of

work, but honour such as is due for an important service.

And we have now said enough about the statements of cases; now it

seems necessary to speak of those controversies which turn upon the

letter of the law.

XL. The controversy turns upon the letter of the law when some doubt

arises from the consideration of the exact terms in which it is drawn

up. That arises from ambiguity, from the letter of the law, from its

intention, from contrary laws, from ratiocination, and definition. But

a controversy arises from ambiguity, when it is an obscure point what

was the intention of the writer, because the written words mean two or

even more different things. In this manner:--"The father of a family,

when he was making his son his heir, left a hundredweight of silver

plate to his wife, in these terms:

"Let my heir give my wife a hundredweight of silver plate, consisting

of such vessels as may be chosen. After he was dead, the mother

demands of her son some very magnificent vessels of very valuable

carving. He says that he is only bound to give her those vessels which

he himself chooses." Here, in the first place, it is necessary to show

if possible that the will has not been drawn up in ambiguous terms,

because all men in ordinary conversation are accustomed to employ that

expression, whether consisting of one word or more, in that meaning in

which the speaker hopes to show that this is to be understood. Then

it is desirable to prove that from both the preceding and subsequent

language of the will, the real meaning which is being sought may

be made evident. So that if all the words, or most of them, were

considered separately by themselves, they would appear of doubtful

meaning. But as for those which can be made intelligible by a

consideration of the whole document, these have no business to be

thought obscure.

In the next place, it will be proper to draw one's conclusion as to

the intentions which were entertained by the writer from all his other

writings, and actions, and sayings, and his general disposition, and

from the usual tenor of his life; and to scrutinise that very document

in which this ambiguous phrase is contained which is the subject of

the present inquiry, all over, in all its parts, so as to see whether

there is anything opposite to that interpretation which we contend

for, or contrary to that which the adversary insists on adopting. For

it will be easy to consider what it is probable that the man who drew

up the document intended, from its whole tenor, and from the

character of the writer, and from those other circumstances which are

characteristic of the persons concerned. In the next place, it will

be desirable to show, if the facts of the case itself afford any

opportunity for doing so, that that meaning which the opposite party

contends for, is a much more inconvenient one to adopt than that which

we have assumed to be the proper one, because there is no possible

means of carrying out or complying with that other meaning; but what

we contend for can be accomplished with great ease and convenience.

As in this law (for there is no objection to citing an imaginary

one for the sake of giving an instance, in order to the more easy

comprehension of the matter):--"Let not a prostitute have a golden

crown. If such a case exists, it must be confiscated." Now, in

opposition to a man who contended that that was to become public

property in accordance with this law, it might be argued, "that there

could be no way of making a prostitute public property, and there is

no intelligible meaning for the law if that is what is to be adopted

as its proper construction; but as to the confiscation of anything

made of gold, the management and the result is easy, and there is no

difficulty in it."

XLI. And it will be desirable also to pay diligent attention to this

point, whether if that sense is sanctioned which the opposite party

contends for, any more advantageous, or honourable, or necessary

object appears to have been omitted by the framer of the document in

question. That will be done if we can prove that the object which

we are attempting to prove is either honourable, or expedient, or

necessary; and if we can also assert that the interpretation which our

adversaries insist upon, is not at all entitled to such a character.

In the next place, if there is in the law itself any controversy

arising from any ambiguity, it will be requisite to take great care to

show that the meaning which our adversaries adopt is provided for in

some other law. But it will be very serviceable indeed to point out

how the testator would have expressed himself, if he had wished the

interpretation which the adversary puts upon his words to be carried

into execution or understood. As for instance, in this cause, the one,

I mean, in which the question is about the silver plate, the woman

might argue, "That there was no use in adding the words 'as may be

chosen,' if the matter was left to the selection of the heir; for if

no such words had been inserted, there could have been no doubt at all

that the heir might have given whatever he himself chose. So that it

was downright madness, if he wished to take precautions in favour of

his heir, to add words which might have been wholly left out without

such omission prejudicing his heir's welfare."

Wherefore, it will be exceedingly advisable to employ this species of

argument in such causes:--"If he had written with this intention he

would not have employed that word; he would not have placed that word

in that place;" for it is from such particulars as these that it is

easiest to collect the intention of the writer. In the next place, it

is necessary to inquire when the document was drawn up, in order that

it may be understood what it was likely that he should have wished

at such a time. Afterwards it will be advisable to point out, by

reference to the topics furnished by the deliberative argument, what

is more useful and what more honourable to the testator to write, and

to the adversary to prove; and it will be well for both parties to

employ common topics, if there is any room for extending either

argument.

XLII. A controversy arises with respect to the letter of the document

and to its meaning, when one party employs the very words which are

set down in the paper; and the other applies all his arguments to that

which he affirms that the framer of the document intended. But the

intention of the framer of the document must be proved by the man who

defends himself, by reference to that intention, to have always the

same object in view and the same meaning; and it must also, either

by reference to the action or to some result, be adapted to the time

which the inquiry concerns. It must be proved always to have the same

object in view, in this way:--"The head of a house, at a time when he

had no children, but had a wife, inserted this clause in his will: 'If

I have a son or sons born to me, he or they is or are to be my heir

or heirs.' Then follow the ordinary provisions. After that comes the

following clause: 'If my son dies before he comes into the property,

which is held in trust for him, then,' says the clause, 'you shall be

my reversionary heir.' He never has a son. His next of kin raise a

dispute with the man who is named as the heir, in the case of the

testator's son dying before he comes into the property which his

guardians are holding for him." In this case it cannot be said that

the meaning of the testator ought to be made to suit the time or some

particular result, because that intention alone is proved on which the

man who is arguing against the language of the will relies, in order

to defend his own right to the inheritance.

There is another class of topics which introduce the question as to

the meaning of expressions, in which the mere simple intention of the

framer is not endeavoured to be proved, for that has the same weight

with reference to every period and every action; but it is argued that

it ought to be interpreted with reference to some particular action,

or to some event happening at that particular time. And that is

especially supported by the divisions of the juridical assumptive mode

of investigation. For then the comparison is instituted; as in the

case of "a man who, though the law forbad the gates to be opened

by night, did open them in a certain war, and admitted some

reinforcements into the town, in order to prevent their being

overwhelmed by the enemy if they remained outside the gates; because

the enemy were encamped close to the walls." Then comes the retorting

of the charge; as in the case of "that soldier who, when the common

law of all men forbad any one to kill a man, slew his own military

tribune who was attempting to offer violence to him." Then comes

the exculpation; as in the case of "that man who, when the law had

appointed some particular days within which he was to proceed on his

embassy, did not set out because the quaestor did not furnish him with

money for his expenses." Then comes the admission of the fact by way

of purgation, and also by the excuse of ignorance; as "in the case of

the sacrificing a calf;" and with reference to compulsion, as "in the

case of the beaked ship;" and with reference to accident, as "in the

case of the sudden rise of the river Eurotas." Wherefore, it is best

that the meaning should be introduced in such a way, as that the

framer of the law should be proved to have intended some one definite

thing; else in such a way that he should be proved to have meant this

particular thing, under these circumstances, and at this time.

XLIII. He, therefore, who is defending the exact language of the law,

will generally be able to use all these topics; and will always be

able to use the greater part of them. First of all, he will employ a

panegyric of the framer of it, and the common topic that those who

are the judges have no business to consider anything except what

is expressly stated in the law; and so much the more if any legal

document be brought forward, that is to say, either the law itself,

or some portion of the law. Afterwards--and this is a point of the

greatest importance--he will employ a comparison of the action or of

the charge brought by the opposite party with the actual words of the

law; he will show what is contained in the law, what has been done,

what the judge has sworn. And it will be well to vary this topic in

many ways, sometimes professing to wonder in his own mind what can be

said against this argument; sometimes recurring to the duty of the

judge, and asking of him what more he can think it requisite to

hear, or what further he expects; sometimes by bringing forward

the adversary himself, as if in the position of a person making an

accusation; that is to say, by asking him whether he denies that the

law is drawn up in that manner, or whether he denies that he himself

has contravened it, or disputed it. If he denies either of these

points, then one must avow that one will say no more; if he denies

neither of them, and yet continues to urge his arguments in opposition

to one, then one must say that it is impossible for any one ever to

expect to see a more impudent man. And it will be well to dwell on

this point as if nothing besides were to be said, as if nothing could

be said in contradiction, by reciting several times over what is

written; by often contrasting the conduct of the adversary with what

is written; and sometimes by recurring vehemently to the topic of the

judge himself; in which one will remind the judge of what oath he has

taken, of what his conduct is bound to be; and urge that there are two

causes on account of which a judge is bound to hesitate, one if the

law be obscurely worded, the other if the adversary denies anything.

But as in this instance the wording of the law is plain, and the

adversary admits every fact that is alleged, the judge has now nothing

to do but to fulfil the law, and not to interpret it.

XLIV. When this point has been sufficiently insisted on, then it will

be advisable to do away with the effect of those things which the

adversary has been able to urge by way of objection. But such

objections will be made if the framer of the law can be absolutely

proved to have meant one thing, and written another; as in that

dispute concerning the will which we mentioned just now: or some

adventitious cause may be alleged why it was not possible or not

desirable to obey the written law minutely. If it is stated that the

framer of the law meant one thing, and wrote another, then he who

appeals to the letter of the law will say that it is our business not

to discuss the intention of a man who has left us a plain proof of

that intention, to prevent our having any doubt about it; and that

many inconveniences must ensue if the principle is laid down that we

may depart from the letter of the law. For that then those who frame

laws will not think that the laws which they are making will remain

firm; and those who are judges will have no certain principle to

follow if once they get into the habit of departing from the letter of

the law. But if the intention of the framer of the law is what is to

be looked at, then it is he, and not his adversaries, who relies on

the meaning of the lawgiver. For that that person comes much nearer to

the intention of the framer of a law who interprets it from his own

writings, than he who does not look at the meaning of the framer of

the law by that writing of his own which he has left to be as it were

an image of his meaning, but who investigates it under the guidance of

some private suspicions of his own.

If the party who stands on the meaning of the lawgiver brings forward

any reasons, then, in the first place, it will be necessary to reply

to those reasons; to urge how absurd it is for a man not to deny that

he has acted contrary to the law, but at the same time to give some

reason for having acted so. Then one will say too that all things are

turned upside down; that formerly prosecutors were in the habit of

trying to persuade the judges that the person who was being prosecuted

before them was implicated in some fault, and of alleging some reasons

which had instigated him to commit this fault; but that now the

accused person himself is giving the reasons why he has offended

against the laws. Then it will be proper to introduce this division,

each portion of which will have many lines of argument suitable to it:

in the first place, that there is no law with reference to which it

is allowable to allege any reasons contrary to the law; in the next

place, that if such a course is admissible in any law, this is such a

law that it is not admissible with respect to it; and lastly, that,

even if such reasons ever might be alleged, at all events this is not

such a reason.

XLV. The first part of the argument is confirmed by pretty nearly the

same topics as these: that the framer of the law was not deficient in

either ability, or pains, or any faculty requisite to enable him to

express plainly what his intention was; that it would not have been

either displeasing or difficult to him to insert such an exception as

that which the opposite party contends for in his law, if he thought

any exception requisite; and in fact, that those people who frame

laws often do insert clauses of exceptions. After that it is well to

enumerate some of the laws which have exceptional clauses attached to

them, and to take especial care to see whether in the law itself which

is under discussion there is any exception made in any chapter, or

whether the same man who framed this law has made exceptions in other

laws, so that it may be more naturally inferred that he would have

made exceptions in this one, if he had thought exceptions requisite;

and it will be well also to show that to admit of a reason for

violating the law is the same thing as abrogating the law, because

when once such a reason is taken into consideration it is no use to

consider it with reference to the law, inasmuch as it is not stated in

the law. And if such a principle is once laid down, then a reason for

violating the law, and a licence to do so, is given to every one, as

soon as they perceive that you as judges decide the matter in a way

which depends on the ability of the man who has violated the law, and

not with reference to the law which you have sworn to administer.

Then, too, one must point out that all principles on which judges are

to judge, and citizens are to live, will be thrown into confusion if

the laws are once departed from; for the judges will not have any

rules to follow, if they depart from what is set down in the law, and

no principles on which they can reprove others for having acted in

defiance of the law. And that all the rest of the citizens will be

ignorant what they are to do, if each of them regulates all his

actions according to his own ideas, and to whatever whim or fancy

comes into his head, and not according to the common statute law of

the state.

After that it will be suitable to ask the judges why they occupy

themselves at all with the business of other people;--why they allow

themselves to be harassed in discharging the offices of the republic,

when they might often spend the time in promoting their own ends and

private interests;--why they take an oath in a certain form;--why they

assemble at a regular time and go away at a regular time;--why no

one of them ever alleges any reason for being less frequent in his

discharge of his duty to the republic, except such as is set down in

some formal law as an exception. And one may ask, whether they think

it right that they should be bound down and exposed to so much

inconvenience by the laws, and at the same time allow our adversaries

to disregard the laws. After that it will be natural to put the

question to the judges whether, when the party accused himself

endeavours to set down in the law, as an exception, that particular

case in which he admits that he has violated the law, they will

consent to it. And to ask also, whether what he has actually done is

more scandalous and more shameless than the exception which he wishes

to insert in the law;--what indeed can be more shameless? Even if the

judges were inclined to make such an addition to the law, would the

people permit it? One might also press upon them that this is even a

more scandalous measure, when they are unable to make an alteration in

the language and letter of the law, to alter it in the actual facts,

and to give a decision contrary to it; and besides, that it is a

scandalous thing that anything should be taken from the law, or that

the law should be abrogated or changed in any part whatever, without

the people having any opportunity of knowing, or approving, or

disapproving of what is done; that such conduct is calculated to bring

the judges themselves into great odium; that it is not the proper time

nor opportunity for amending the laws; that this ought only to be

brought forward in an assembly of the people, and only to be done by

the people; that if they now do so, the speaker would like to know

who is the maker of the new law, and who are to obey it; that he

sees actions impending, and wishes to prevent them; that as all

such proceedings as these are exceedingly useless and abundantly

discreditable, the law, whatever it is like, ought, while it exists,

to be maintained by the judges, and hereafter, if it is disapproved

of, to be amended by the people. Besides this, if there were no

written law, we should take great trouble to find one; and we should

not place any confidence in that man, not even if he were in no

personal danger himself; but now, when there is a written law, it is

downright insanity to attend to what that man says who has violated

the law, rather than to the language of the law itself. By these and

similar arguments it is proved that it is not right to admit any

excuse which is contrary to the letter of the law.

XLVI. The second part is that in which it is desirable to prove that

if such a proceeding is right with respect to other laws, it is not

advisable with respect to this one. This will be shown if the

law appears to refer to matters of the greatest importance, and

usefulness, and honourableness, and sanctity; so that it is

disadvantageous, or discreditable, or impious not to obey the law as

carefully as possible in such a matter. Or the law may be proved to

have been drawn up so carefully, and such great diligence may be shown

to have been exercised in framing each separate provision of it, and

in making every exception that was allowable, that it is not at all

probable that anything proper to be inserted has been omitted in so

carefully considered a document.

The third topic is one exceedingly necessary for a man who is arguing

in defence of the letter of the law; by which it may be urged, that

even if it is decent for an excuse to be admitted contrary to

the letter of the law, still that excuse which is alleged by his

adversaries is of all others the least proper to be so alleged. And

this topic is necessary for him on this account,--because the man who

is arguing against the letter of the law ought always to have some

point of equity to allege on his side. For it is the greatest possible

impudence for a man who wishes to establish some point in opposition

to the exact letter of the law, not to attempt to fortify himself in

so doing, with the assistance of the law. If therefore the accuser in

any respect weakens the defence by this topic, he will appear in

every respect to have more justice and probability in favour of

his accusation. For all the former part of his speech has had this

object,--that the judges should feel it impossible, even if they

wished it, to avoid condemning the accused person; but this part has

for its object the making them wish to give such a decision, even if

it were not inevitable.

And that result will be obtained, if we use those topics by which

guilt may be proved not to be in the man who defends himself, by using

the topic of comparison, or by getting rid of the accusation, or by

recrimination, or by some species of confession, (concerning all which

topics we have already written with all the precision of which we were

capable,) and if we take those which the case will admit of for the

purpose of throwing discredit on the argument of our adversary;--or

if reasons and arguments are adduced to show why or with what design

those expressions were inserted in the law or will in question, so

that our side of the question may appear established by the meaning

and intention of the writer, and not only by the language which he has

employed. Or the fact may be proved by other statements and arguments.

XLVII. But any one who speaks against the letter of the law will first

of all introduce that topic by which the equity of the excuse is

proved; or he will point out with what feelings, with what design, and

on what account he did the action in question. And whatever excuse he

alleges he will defend according to some of the rules which I have

already given with respect to assumptions. And when he has dwelt on

this topic for some time, and set forth the principles of his conduct

and the equity of his cause in the most specious manner he can, he

will also add, in opposition to the arguments of his adversaries,

that it is from these topics for the most part that excuses which are

admissible ought to be drawn. He will urge that there is no law which

sanctions the doing of any disadvantageous or unjust action; that all

punishments which are enacted by the laws have been enacted for the

sake of chastising guilt and wickedness; that the very framer of the

laws, if he were alive, would approve of this conduct, and would

have done the very same thing himself if he had been in similar

circumstances. And that it is on this account that the framer of the

law appointed judges of a certain rank and age, in order that there

might be men, not capable merely of reading out what he had written,

which any boy might do, but able also to understand his thoughts and

to interpret his intentions. He will add, that that framer of the law,

if he had been intrusting the laws which he was drawing up to foolish

men and illiterate judges, would have set down everything with the

most scrupulous diligence; but, as it is, because he was aware what

sort of men were to be the judges, he did not put down many things

which appeared to him to be evident; and he expected that you would be

not mere readers of his writings, but interpreters of his intentions.

Afterwards he will proceed to ask his adversaries--"What would you

say if I had done so and so?" "What would you think if so and so had

happened?" "Suppose any one of those things had happened which would

have had a most unfailing excuse, or a most undeniable necessity,

would you then have prosecuted me?" But the law has nowhere made any

such exception. It follows, therefore, that it is not every possible

circumstance which is mentioned in the written law but that some

things which are self-evident are guarded against by unexpressed

exceptions. Then he will urge, that nothing could be carried on

properly either by the laws or by any written document whatever, or

even in daily conversation, or in the commands given in a private

household, if every one chose to keep his eyes on the exact language

of the order, and not to take into consideration the intentions of him

who uttered the order.

XLVIII. After that he will be able, by reference to the divisions

of usefulness and honour, to point out how inexpedient or how

dishonourable that would have been which the opposite party say ought

to have been done, or to be done now. And on the other hand, how

expedient and how honourable that is which we have done, or demand

should be done. In the next place, he will urge that we set a value on

our laws not on account of their wording, which is a slight and

often obscure indication of their intention, but on account of the

usefulness of those things concerning which they are written, and the

wisdom and diligence of those men who wrote them. Afterwards he will

proceed to describe what the law is, so that it shall appear to

consist of meanings, not of words; and that the judge may appear to be

obedient to the law, who follows its meaning and not its strict words.

After that he will urge how scandalous it is that he should have the

same punishment inflicted on him who has violated the law out of some

mere wickedness and audacity, as on the man who, on account of some

honourable or unavoidable reason, has departed not from the spirit of

the law, but from its letter. And by these and similar arguments

he will endeavour to prove that the excuse is admissible, and is

admissible in this law, and that the excuse which he himself is

alleging ought to be admitted.

And, as we said that this would be exceedingly useful to the man who

was relying on the letter of the law, to detract in some degree from

that equity which appeared to be on the side of the adversary; so also

it will be of the greatest advantage to the man who is speaking in

opposition to the letter of the law, to convert something of the exact

letter of the law to his own side of the argument, or else to show

that something has been expressed ambiguously. And afterwards, to

take that portion of the doubtful expression which may serve his own

purpose, and defend it; or else to introduce some definition of

a word, and to bring over the meaning of that word which seems

unfavourable to him to the advantage of his own cause, or else, from

what is set down in the law to introduce something which is not set

down by means of ratiocination, which we will speak of presently. But

in whatever matter, however little probable it may be, he defends

himself by an appeal to the exact letter of the law, even when his

case is full of equity, he will unavoidably gain a great advantage,

because if he can withdraw from the cause of the opposite party that

point on which it principally relies, he will mitigate and take off

the effect of all its violence and energy. But all the rest of the

common topics taken from the divisions of assumptive argument will

suit each side of the question. It will also be suitable for him whose

argument takes its stand on the letter of the law, to urge that laws

ought to be looked at, not with reference to the advantage of that man

who has violated them, but according to their own intrinsic value, and

that nothing ought to be considered more precious than the laws. On

the other side, the speaker will urge, that laws depend upon the

intention of the framer of them, and upon the general advantage,

not upon words, and also, how scandalous it is for equity to be

overwhelmed by a heap of letters, and defended in vain by the

intention of the man who drew up the law.

XLIX. But from contrary laws a controversy arises, when two or more

laws appear to be at variance with one another In this manner--There

is a law, "That he who has slain a tyrant shall receive the regard of

men who conquer at Olympia, and shall also ask whatever he pleases of

the magistrate, and the magistrate shall grant it to him." There is

also another law--"When a tyrant is slain, the magistrate shall also

put to death his five nearest relations." Alexander, who was the tyrant

of Pherse, a city in Thessaly, was slain by his own wife, whose name

was Thebe, at night, when he was in bed with her, she, as a reward,

demands the liberty of her son whom she had by the tyrant. Some say

that according to this law that son ought to be put to death. The

matter is referred to a court of justice. Now in a case of this

kind the same topics and the same rules will suit each side of the

question, because each party is bound to establish his own law, and

to invalidate the one contrary to it. First of all, therefore, it is

requisite to show the nature of the laws, by considering which law has

reference to more important, that is to say, to more honourable and

more necessary matters. From which it results, that if two or more,

or ever so many laws cannot all be maintained, because they are at

variance with one another, that one ought to be considered the most

desirable to be maintained, which appears to have reference to the

most important matters. Then comes the question also, which law was

passed last; for the newest law is the most important. And also, which

law enjoins anything, and which merely allows it; for that which is

enjoined is necessary, that which is allowed is optional. Also one

must consider by which law a penalty is appointed for the violation

of it; or which has the heaviest penalty attached to it; for that law

must be the most carefully maintained which is sanctioned by the most

severe penalties. Again, one must inquire which law enjoins, and which

forbids anything; for it often happens that the law which forbids

something appears by some exception as it were to amend the law which

commands something. Then, too, it is right to consider which law

comprehends the entire class of subjects to which it refers, and which

embraces only a part of the question; which may be applied generally

to many classes of questions, and which appears to have been framed to

apply to some special subject. For that which has been drawn up with

reference to some particular division of a subject, or for some

special purpose, appears to come nearer to the subject under

discussion, and to have more immediate connexion with the present

action. Then arises the question, which is the thing which according

to the law must be done immediately; which will admit of some delay or

slackness in the execution. For it is right that that should be done

first which must be done immediately. In the next place, it is well to

take pains that the law one is advocating shall appear to depend on

its own precise language; and that the law with a contrary sense

should appear to be introduced with a doubtful interpretation, or by

some ratiocination or definition, in order that that law which is

expressed in plain language may appear to be the more solemn and

efficient. After that it will be well to add the meaning of the law

which is on one's own side according to the strict letter of it; and

also to explain the opposite law so as to make it appear to have

another meaning, in order that, if possible, they may not seem to be

inconsistent with one another. And, last of all, it will be a good

thing, if the cause shall afford any opportunity for so doing, to take

care that on our principles both the laws may seem to be upheld, but

that on the principle contended for by our adversaries one of them

must be put aside. It will be well also to consider all the common

topics and those which the cause itself furnishes, and to take them

from the most highly esteemed divisions of the subjects of expediency

and honour, showing by means of amplification which law it is most

desirable to adhere to.

L. From ratiocination there arises a controversy when, from what

is written somewhere or other, one arrives at what is not written

anywhere; in this way:--"If a man is mad, let those of his family and

his next of kin have the regulation of himself and of his property."

And there is another law--"In whatever manner a head of a family has

made his will respecting his family and his property, so let it be."

And another law--"If a head of a family dies intestate, his family

and property shall belong to his relations and to his next of kin." A

certain man was convicted of having murdered his father. Immediately,

because he was not able to escape, wooden shoes were put upon his

feet, and his mouth was covered with a leathern bag, and bound fast,

then he was led away to prison, that he might remain there while a bag

was got ready for him to be put into and thrown into a river. In

the meantime some of his friends bring tablets to the prison, and

introduce witnesses also; they put down those men as his heirs whom he

himself desires; the will is sealed; the man is afterwards executed.

There is a dispute between those who are set down as his heirs in the

will, and his next of kin, about his inheritance. In this instance

there is no positive law alleged which takes away the power of making

a will from people who are in such a situation. But from other laws,

both those which inflict a punishment of this character on a man

guilty of such a crime, and those, too, which relate to a man's power

of making a will, it is possible to come by means of ratiocination to

a conclusion of this sort, that it is proper to inquire whether he had

the power of making a will.

But we think that these and such as these are the common topics

suitable to an argument of this description. In the first place, a

panegyric upon, and a confirmation of that writing which you are

producing. Then a comparison of the matter which is the subject of

discussion, with that which is a settled case, in such a manner that

the case which is under investigation may appear to resemble that

about which there are settled and notorious rules. After that, one

will express admiration, (by way of comparison), how it can happen

that a man who admits that this is fair, can deny that other thing,

which is either more equitable still, or which rests on exactly

similar principles; then, too, one will contend that the reason why

there is no precise law drawn up for such a case, is because, as there

was one in existence applicable to the other case, the framer of that

law thought that no one could possibly entertain a doubt in this case;

and afterwards it will be well to urge that there are many cases not

provided for in many laws, which beyond all question were passed over

merely because the rule as to them could be so easily collected out

of the other cases which were provided for; and last of all, it is

necessary to point out what the equity of the case requires, as is

done in a plain judicial case.

But the speaker who is arguing on the other side is bound to try and

invalidate the comparison instituted, which he will do if he can show

that that which is compared is different from that with which it is

compared in kind, in nature, in effect, in importance, in time, in

situation, in character, in the opinion entertained of it; if it is

shown also in what class that which is adduced by way of comparison

ought to stand, and in what rank that also ought to be considered, for

the sake of which the other thing is mentioned. After that, it will be

well to point out how one case differs from the other, so that it does

not seem that any one ought to have the same opinion of both of them.

And if he himself also is able to have recourse to ratiocination, he

must use the same ratiocination which has been already spoken of. If

he cannot, then he will declare that it is not proper to consider

anything except what is written; that all laws are put in danger if

comparisons are once allowed to be instituted; that there is hardly

anything which does not seem somewhat like something else; that when

there are many circumstances wholly dissimilar, still there are

separate laws for each individual case; and that all things can be

proved to be like or unlike to each other. The common topics derived

from ratiocination ought to arrive by conjecture from that which is

written to that which is not written; and one may urge that no one can

embrace every imaginable case in a written law, but that he frames a

law best who takes care to make one thing understood from another. One

may urge, too, that in opposition to a ratiocination of this sort,

conjecture is no better than a divination, and that it would be a

sign of a very stupid framer of laws not to be able to provide for

everything which he wished to.

LI. Definition is when a word is set down in a written document, whose

exact meaning is inquired into, in this manner:--There is a law,

"Whoever in a severe tempest desert their ship shall be deprived of

all their property; the ship and the cargo shall belong to those men

who remain by the ship." Two men, when they were sailing on the open

sea, and when the ship belonged to one of them and the cargo to

another, noticed a shipwrecked man swimming and holding out his hands

to them. Being moved with pity they directed the ship towards him, and

took the man into their vessel. A little afterwards the storm began to

toss them also about very violently, to such a degree that the owner

of the ship, who was also the pilot, got into a little boat, and from

that he guided the ship as well as he could by the rope by which the

boat was fastened to the ship, and so towed along; but the man to whom

the cargo belonged threw himself on his sword in despair. On this

the shipwrecked man took the helm and assisted the ship as far as he

could. But after the waves went down and the tempest abated, the ship

arrived in harbour. But the man who had fallen on his sword turned out

to be but slightly wounded, and easily recovered of his wound. And

then every one of these three men claimed the ship and cargo for his

own. Every one of them relies on the letter of the law to support

their claim, and a dispute arises as to the meaning of the words.

For they seek to ascertain by definitions what is the meaning of the

expressions "to abandon the ship," "to stand by the ship," and even

what "the ship" itself is. And the question must be dealt with with

reference to all the same topics as are employed in a statement of the

case which turns upon a definition.

Now, having explained all those argumentations which are adapted to

the judicial class of causes, we will proceed in regular order to

give topics and rules for the deliberative and demonstrative class

of arguments; not that there is any cause which is not at all times

conversant with some statement of the case or other; but because there

are nevertheless some topics peculiar to these causes, not separated

from the statement of the case, but adapted to the objects which are

more especially kept in view by these kinds of argumentation.

For it seems desirable that in the judicial kind the proper end

is equity; that is to say, some division of honesty. But in the

deliberative kind Aristotle thinks that the proper object is

expediency; we ourselves, that it is expediency and honesty combined.

In the demonstrative kind it is honesty only. Wherefore, in this kind

of cause also, some kinds of argumentation will be handled in a common

manner, and in similar ways to one another. Some will be discussed

more separately with reference to their object, which is what we must

always keep in view in every kind of speech. And we should have no

objection to give an example of each kind of statement of the case, if

we did not see that, as obscure things are made more plain by speaking

of them, so also things which are plain are sometimes made more

obscure by a speech. At present let us go on to precepts of

deliberation.

LII. Of matters to be aimed at there are three classes; and on the

other hand there is a corresponding number of things to be avoided.

For there is something which of its own intrinsic force draws us to

itself, not catching us by any idea of emolument, but alluring us by

its own dignity. Of this class are virtue, science, truth. And there

is something else which seems desirable, not on account of its own

excellence or nature, but on account of its advantage and of the

utility to be derived from it--such as money. There are also some

things formed of parts of these others in combination, which allure us

and draw us after them by their own intrinsic character and dignity,

and which also hold out some prospect of advantage to us, to induce

us to seek it more eagerly, as friendship, and a fair reputation;

and from these their opposites will easily be perceived, without our

saying anything about them.

But in order that the principle may be explained in the more simple

way, the rules which we have laid down shall be enumerated briefly.

For those which belong to the first kind of discussion are called

honourable things; those which belong to the second, are called useful

things; but this third thing, because it contains some portion of what

is honourable, and because the power of what is honourable is the more

important part, is perceived to be altogether a compound kind, made up

of a twofold division; still it derives its name from its better part,

and is called honourable. From this it follows, that there are these

parts in things which are desirable,--what is honourable, and what is

useful. And these parts in things which are to be avoided,--what is

dishonourable, and what is useless. Now to these two things there

are two other important circumstances to be added,--necessity and

affection: the one of which is considered with reference to force, the

other with reference to circumstances and persons. Hereafter we will

write more explicitly about each separately. At present we will

explain first the principles of what is honourable.

LIII. That which either wholly or in some considerable portion of it

is sought for its own sake, we call honourable: and as there are two

divisions of it, one of which is simple and the other twofold, let us

consider the simple one first. In that kind, then, virtue has embraced

all things under one meaning and one name; for virtue is a habit

of the mind, consistent with nature, and moderation, and reason.

Wherefore, when we have become acquainted with all its divisions, it

will be proper to consider the whole force of simple honesty.

It has then four divisions--prudence, justice, fortitude, and

temperance. Prudence is the knowledge of things which are good, or

bad, or neither good nor bad. Its parts are memory, intelligence,

and foresight. Memory is that faculty by which the mind recovers the

knowledge of things which have been. Intelligence is that by which it

perceives what exists at present. Foresight is that by which anything

is seen to be about to happen, before it does happen. Justice is a

habit of the mind which attributes its proper dignity to everything,

preserving a due regard to the general welfare. Its first principles

proceed from nature. Subsequently some practices became established by

universal custom, from a consideration of their utility; afterwards

the fear of the laws and religion sanctioned proceedings which

originated in nature, and had been approved of by custom.

Natural law is that which has not had its origin in the opinions of

men, but has been implanted by some innate instinct, like religion,

affection, gratitude, revenge, attention to one's superiors, truth.

Religion is that which causes men to pay attention to, and to respect

with fixed ceremonies, a certain superior nature which men call

divine nature. Affection is that feeling under the influence of which

kindness and careful attention is paid to those who are united to us

by ties of blood, or who are devoted to the service of their country.

Gratitude is that feeling in which the recollection of friendship,

and of the services which we have received from another, and the

inclination to requite those services, is contained. Revenge is that

disposition by which violence and injury, and altogether everything

which can be any injury to us, is repelled by defending oneself from

it, or by avenging it. Attention is that feeling by which men obey

when they think those who are eminent for worth or dignity, worthy of

some special respect and honour. Truth is that by which those things

which are, or which have been previously, or which are about to

happen, are spoken of without any alteration.

LIV. Conventional law is a principle which has either derived its

origin in a slight degree from nature, and then has been strengthened

by habit, like religion; or, if we see any one of those things which

we have already mentioned as proceeding from nature strengthened by

habit; or, if there is anything to which antiquity has given the

force of custom with the approbation of everybody: such as covenants,

equity, cases already decided. A covenant is that which is agreed upon

between two parties; equity is that which is equally just for every

one; a case previously decided is one which has been settled by the

authoritative decision of some person or persons entitled to pronounce

it.

Legal right is that which is contained in that written form which is

delivered to the people to be observed by them.

Fortitude is a deliberate encountering of danger and enduring of

labour. Its parts are magnificence, confidence, patience, and

perseverance. Magnificence is the consideration and management of

important and sublime matters with a certain wide-seeing and splendid

determination of mind. Confidence is that feeling by which the mind

embarks in great and honourable courses with a sure hope and trust in

itself. Patience is a voluntary and sustained endurance, for the

sake of what is honourable or advantageous, of difficult and painful

labours. Perseverance is a steady and lasting persistence in a

well-considered principle.

Temperance is the form and well-regulated dominion of reason over lust

and other improper affections of the mind. Its parts are continence,

clemency, and modesty. Continence is that by which cupidity is kept

down under the superior influence of wisdom. Clemency is that by which

the violence of the mind, when causelessly excited to entertain hatred

against some one else, is restrained by courtesy. Modesty is that

feeling by which honourable shame acquires a valuable and lasting

authority. And all these things are to be sought for themselves, even

if no advantage is to be acquired by them. And it neither concerns our

present purpose to prove this, nor is it agreeable to our object of

being concise in laying down our rules.

But the things which are to be avoided for their own sake, are not

those only which are the opposites to these; as indolence is to

courage, and injustice to justice; but those also which appear to

be near to and related to them, but which, in reality, are very far

removed from them. As, for instance, diffidence is the opposite to

confidence, and is therefore a vice; audacity is not the opposite of

confidence, but is near it and akin to it, and, nevertheless, is also

a vice. And in this manner there will be found a vice akin to every

virtue, and either already known by some particular name--as audacity,

which is akin to confidence; pertinacity, which is bordering on

perseverance; superstition, which is very near religion,--or in

some cases it has no fixed name. And all these things, as being the

opposites of what is good, we class among things to be avoided. And

enough has now been said respecting that class of honourable things

which is sought in every part of it for itself alone.

LV. At present it appears desirable to speak of that in which

advantage is combined with honour, and which still we style simply

honourable. There are many things, then, which allure us both by their

dignity and also by the advantage which may be derived from them:

such as glory, dignity, influence, friendship. Glory is the fact of

a person's being repeatedly spoken of to his praise; dignity is the

honourable authority of a person, combined with attention and honour

and worthy respect paid to him. Influence is a great abundance of

power or majesty, or of any sort of resource. Friendship is a desire

to do service to any one for the sake of the person himself to whom

one is attached, combined with a corresponding inclination on his part

towards oneself. At present, because we are speaking of civil causes,

we add the consideration of advantage to friendship, so that it

appears a thing to be sought for the sake of the advantage also:

wishing to prevent those men from blaming us who think that we are

including every kind of friendship in our definition.

But although there are some people who think that friendship is only

to be desired on account of the advantage to be derived from it; some

think it is to be desired for itself alone; and some, that it is to be

desired both for its own sake and for the sake of the advantage to be

derived from it. And which of these statements is the most true, there

will be another time for considering. At present it may be laid down,

as far as the orator is concerned, that friendship is a thing to be

desired on both accounts. But the consideration of the different

kinds of friendship, (since they are partly formed on religious

considerations, and partly not; and because some friendships are old,

and some new; and because some originated in kindness shown by our

friends to us, and some in kindness shown by ourselves to them; and

because some are more advantageous, and others less,) must have

reference partly to the dignity of the causes in which it originates,

partly to the occasion when it arises, and also to the services done,

the religious motives entertained, and its antiquity.

LVI. But the advantages consist either in the thing itself, or in

extraneous circumstances; of which, however, by far the greater

portion is referable to personal advantage; as there are some

things in the republic which, so to say, refer to the person of the

state,--as lands, harbours, money, fleets, sailors, soldiery, allies;

by all which things states preserve their safety and their liberty.

There are other things also which make a thing more noble looking,

and which still are less necessary; as the splendid decorating and

enlarging of a city, or an extraordinary amount of wealth, or a great

number of friendships and alliances. And the effect of all these

things is not merely to make states safe and free from injury, but

also noble and powerful. So that there appears to be two divisions of

usefulness,--safety and power. Safety is the secure and unimpaired

preservation of a sound state. Power is a possession of things

suitable to preserving what is one's own, and to acquiring what

belongs to another. And in all those things which have been already

mentioned, it is proper to consider what is difficult to be done, and

what can be done with ease. We call that a thing easy to be done,

which can be done without great labour, or expense, or annoyance, or

perhaps without any labour, expense, or annoyance at all, and in the

shortest possible time. But that we call difficult to be done which,

although it requires labour, expense, trouble and time, and has every

possible characteristic of difficulty about it, or, at all events, the

most numerous and most important ones, still, when these difficulties

are encountered, can be completed and brought to an end.

Since, then, we have now discussed what is honourable and what is

useful, it remains for us to say a little of those things which we

have said are attached to these other things; namely, affection and

necessity.

LVII. I think, then, that necessity means that which cannot be

resisted by any power; that which cannot be softened nor altered. And

that this may be made more plain, let us examine into the meaning of

it by the light of examples, so as to see what its character and how

great its power is. "It is necessary that anything made of wood must

be capable of being burnt with fire. It is necessary that a mortal

body should at some time or other die." And it is so necessary, that

that power of necessity which we were just now describing requires it;

which cannot by any force whatever be either resisted, or weakened,

or altered. Necessities of this kind, when they occur in oratory, are

properly called necessities; but if any difficult circumstances arise,

then we shall consider in the previous examination whether it, the

thing in question, be possible to be done. And it seems to me, that

I perceive that there are some kinds of necessity which admit of

additions, and some which are simple and perfect in themselves. For

we say in very different senses:--"It is necessary for the people of

Casilinum to surrender themselves to Hannibal;" and, "It is necessary

that Casilinum should come into the power of Hannibal." In the one

case, that is, in the first case, there is this addition to the

proposition:--"Unless they prefer perishing by hunger." For if they

prefer that, then it is not necessary for them to surrender. But in

the latter proposition such an addition has no place; because whether

the people of Casilinum choose to surrender, or prefer enduring hunger

and perishing in that manner, still it is necessary that Casilinum

must come into the power of Hannibal. What then can be effected by

this division of necessity? I might almost say, a great deal, when the

topic of necessity appears such as may be easily introduced. For when

the necessity is a simple one, there will be no reason for our making

long speeches, as we shall not be able by any means to weaken it; but

when a thing is only necessary provided we wish to avoid or to obtain

something, then it will be necessary to state what advantage or what

honour is contained in that addition. For if you will take notice,

while inquiring what this contributes to the advantage of the state,

you will find that there is nothing which it is necessary to do,

except for the sake of some cause which we call the adjunct. And,

in like manner, you will find that there are many circumstances of

necessity to which a similar addition cannot be made; of such sort

are these:--"It is necessary that mortal men should die;" without

any addition:--"It is not necessary for men to take food;" with this

exception,--"Unless they have an objection to dying of hunger."

Therefore, as I said before, it will be always proper to take into

consideration the character of that exception which is added to the

original proposition. For it will at all times have this influence,

that either the necessity must be explained with reference to what is

honourable, in this manner:--"It is necessary, if we wish to live

with honour;" or with reference to safety, in this manner:--"It is

necessary, if we wish to be safe;" or with reference to convenience,

in this manner:--"It is necessary, if we are desirous to live without

annoyance."

LVIII. And the greatest necessity of all appears to be that which

arises from what is honourable; the next to it is that which arises

from considerations of safety; the third and least important is that

which has ideas of convenience involved in it. But this last can

never be put in comparison with the two former. But it is often

indispensable to compare these together; so that although honour is

more precious than safety, there is still room to deliberate which one

is to consult in the greatest degree. And as to this point, it appears

possible to give a settled rule which may be of lasting application.

For in whatever circumstances it can happen by any possibility that

while we are consulting our safety, that slight diminution of honesty

which is caused by our conduct may be hereafter repaired by virtue and

industry, then it seems proper to have a regard for our safety. But

when that does not appear possible, then we must think of nothing but

what is honourable. And so in a case of that sort when we appear to be

consulting our safety, we shall be able to say with truth that we

are also keeping our eyes fixed on what is honourable, since without

safety we can never attain to that end. And in these circumstances it

will be desirable to yield to another, or to put oneself in another's

place, or to keep quiet at present and wait for another opportunity.

But when we are considering convenience, it is necessary to consider

this point also,--whether the cause, as far as it has reference to

usefulness, appears of sufficient importance to justify us in taking

anything from splendour or honour. And while speaking on this topic,

that appears to me to be the main thing, that we should inquire what

that is which, whether we are desirous of obtaining or avoiding it,

is something necessary; that is to say, what is the character of the

addition; in order that, according as the matter is found to be, so we

may exert ourselves, and consider the most important circumstances as

being also the most necessary.

Affection is a certain way of looking at circumstances either with

reference to the time, or to the result, or management of affairs, or

to the desires of men, so that they no longer appear to be such as

they were considered previously, or as they are generally in the habit

of being considered. "It appears a base thing to go over to the enemy;

but not with the view which Ulysses had when he went over. And it is a

useless act to throw money into the sea; but not with the design

which Aristippus had when he did so." There are, therefore, some

circumstances which may be estimated with reference to the time at

which and the intention with which they are done; and not according to

their own intrinsic nature. In all which cases we must consider what

the times require, or what is worthy of the persons concerned; and we

must not think merely what is done, but with what intention, with what

companions, and at what time, it is done. And from these divisions of

the subject, we think that topics ought to be taken for delivering

one's opinion.

LIX. But praise and blame must be derived from those topics which

can be employed with respect to persons, and which we have already

discussed. But if any one wishes to consider them in a more separate

manner, he may divide them into the intention, and the person of the

doer, and extraneous circumstances. The virtue of the mind is that

concerning the parts of which we have lately spoken; the virtues

of the body are health, dignity, strength, swiftness. Extraneous

circumstances are honour, money, relationship, family, friends,

country, power, and other things which are understood to be of a

similar kind. And in all these, that which is of universal validity

ought to prevail here; and the opposites will be easily understood as

to their description and character.

But in praising and blaming, it will be desirable to consider not

so much the personal character of, or the extraneous circumstances

affecting the person of whom one is speaking, as how he has availed

himself of his advantages. For to praise his good fortune is folly,

and to blame it is arrogance; but the praise of a man's natural

disposition is honourable, and the blame of it is a serious thing.

Now, since the principles of argumentation in every kind of cause have

been set forth, it appears that enough has been said about invention,

which is the first and most important part of rhetoric. Wherefore,

since one portion of my work has been brought down to its end from the

former book; and since this book has already run to a great length,

what remains shall be discussed in subsequent books.

[_The two remaining books are lost_.]

THE ORATOR OF M.T. CICERO. ADDRESSED TO MARCUS BRUTUS.

This work was composed by Cicero soon after the battle of Pharsalia,

and it was intended by him to contain the plan of what he himself

considered to be the most perfect style of eloquence. In his Epistles

to his Friends (vi. 18.) he tells Lepta that he firmly believed that

he had condensed all his knowledge of the art of oratory in what he

had set forth in this book.

I. I have, O Brutus, hesitated a long time and often as to whether

it was a more difficult and arduous business to refuse you, when

constantly requesting the same favour, or to do what you desired me to

do. For to refuse a man to whom I was attached above all men, and whom

I knew also to be most entirely devoted to me, especially when he was

only asking what was reasonable, and desiring what was honourable to

me, appeared to me to be very harsh conduct; and to undertake a matter

of such importance as was not only difficult for any man to have the

ability to execute in an adequate manner, but hard even to think of

in a way suited to its importance, appeared to me to be scarcely

consistent with the character of a man who stood in awe of the reproof

of wise and learned men. For what is there more important than, when

the dissimilarity between good orators is so great, to decide which is

the best sort and as it were the best form of eloquence?

However, since you repeat your entreaties, I will attempt the task,

not so much from any hope that I entertain of accomplishing it, as

from my willingness to attempt it. For I had rather that you should

find fault with my prudence in thus complying with your eager desire,

than with my friendship in refusing to attempt it.

You ask me then, and indeed you are constantly asking me, what kind

of eloquence I approve of in the highest degree, and which sort of

oratory I consider that to which nothing can be added, and which I

therefore think the highest and most perfect kind. And in answering

this question I am afraid lest, if I do what you wish, and give you an

idea of the orator whom you are asking for, I may check the zeal of

many, who, being discouraged by despair, will not make an attempt at

what they have no hope of succeeding in. But it is good for all men to

try everything, who have ever desired to attain any objects which are

of importance and greatly to be desired. But if there be any one who

feels that he is deficient either in natural power, or in any eminent

force of natural genius, or that he is but inadequately instructed in

the knowledge of important sciences, still let him hold on his course

as far as he can. For if a man aims at the highest place, it is very

honourable to arrive at the second or even the third rank. For in

the poets there is room not only for Homer (to confine myself to the

Greeks), or for Archilochus, or Sophocles, or Pindar, but there is

room also for those who are second to them, or even below the second.

Nor, indeed, did the nobleness of Plato in philosophical studies deter

Aristotle from writing; nor did Aristotle himself, by his admirable

knowledge and eloquence, extinguish the zeal in those pursuits of all

other men.

II. And it is not only the case that eminent men have not been

deterred by such circumstances from the highest class of studies, but

even those artists have not renounced their art who have been unable

to equal the beauty of the Talysus[58] which we have seen at Rhodes,

or of the Coan Venus. Nor have subsequent sculptors been so far

alarmed at the statue of the Olympian Jove, or of the Shield-bearer,

as to give up trying what they could accomplish, or how far they could

advance; and, indeed, there has been so vast a multitude of those men,

and each of them has obtained so much credit in his own particular

walk, that, while we admire the most perfect models, we have also

approbation to spare for those who come short of them.

But in the case of orators--I mean Greek orators--it is a marvellous

thing how far one is superior to all the rest. And yet when

Demosthenes flourished there were many illustrious orators, and so

there were before his time, and the supply has not failed since. So

that there is no reason why the hopes of those men, who have devoted

themselves to the study of eloquence, should be broken, or why

their industry should languish. For even the very highest pitch of

excellency ought not to be despaired of; and in perfect things those

things are very good which are next to the most perfect.

And I, in depicting a consummate orator, will draw a picture of such

an one as perhaps never existed. For I am not asking who he was, but

what that is than which nothing can be more excellent. And perhaps the

perfection which I am looking for does not often shine forth, (indeed

I do not know whether it ever has been seen,) but still in some degree

it may at times be discoverable, among some nations more frequently,

and among others more sparingly. But I lay down this position, that

there is nothing of any kind so beautiful which has not something more

beautiful still from which it is copied,--as a portrait is from a

person's face,--though it can neither be perceived by the eyes or

ears, or by any other of the senses; it is in the mind only, and by

our thoughts, that we embrace it. Therefore, though we have never seen

anything of any kind more beautiful than the statues of Phidias and

than those pictures which I have named, still we can imagine something

more beautiful. Nor did that great artist, when he was making the

statue of Jupiter or of Minerva, keep in his mind any particular

person of whom he was making a likeness; but there dwelt in his mind

a certain perfect idea of beauty, which he looked upon, and fixed

his eyes upon, and guided his art and his hand with reference to the

likeness of that model.

III. As therefore there is in forms and figures something perfect and

superexcellent, the appearance of which is stamped in our minds so

that we imitate it, and refer to it everything which falls under our

eyes; so we keep in our mind an idea of perfect eloquence, and seek

for its resemblance with our ears.

Now Plato, that greatest of all authors and teachers, not only of

understanding, but also of speaking, calls those forms of things

ideas; and he affirms that they are not created, but that they

exist from everlasting, and are kept in their places by reason and

intelligence: that all other things have their rising and setting,

their ebb and flow, and cannot continue long in the same condition.

Whatever there is, therefore, which can become a subject of discussion

as to its principle and method, is to be reduced to the ultimate form

and species of its class.

And I see that this first beginning of mine is derived not from the

discussions of orators, but from the very heart of philosophy, and

that it is old-fashioned and somewhat obscure, and likely to incur

some blame, or at all events to provoke some surprise. For men will

either wonder what all this has to do with that which is the subject

of our inquiry, and they will be satisfied with understanding the

nature of the facts, so that it may not seem to be without reason that

we have traced their origin so far back; or else they will blame

us for hunting out for unaccustomed paths, and abandoning those in

ordinary use.

But I am aware that I often appear to say things which are novel, when

I am in reality saying what is very old, only not generally known.

And I confess that I have been made an orator, (if indeed I am one at

all,) or such as I am, not by the workshops of the rhetoricians, but

by the walks of the Academy. For that is the school of manifold and

various discourses, in which first of all there are imprinted the

footsteps of Plato. But the orator is to a great extent trained and

assisted by his discussions and those of other philosophers. For all

that copiousness, and forest, as it were, of eloquence, is derived

from those men, and yet is not sufficient for forensic business;

which, as these men themselves used to say, they left to more rustic

muses. Accordingly this forensic eloquence, being despised and

repudiated by philosophy, has lost many great and substantial helps;

but still, as it is embellished with flowery language and well-turned

periods, it has had some popularity among the people, and has had no

reason to fear the judgment or prejudice of a few. And so popular

eloquence has been lost to learned men, and elegant learning to

eloquent ones.

IV. Let this then be laid down among the first principles, (and it

will be better understood presently,)--that the eloquent man whom we

are looking for cannot be rendered such without philosophy. Not indeed

that there is everything necessary in philosophy, but that it is of

assistance to an orator as the wrestling-school is to an actor; for

small things are often compared with great ones. For no one can

express wide views, or speak fluently on many and various subjects,

without philosophy. Since also, in the Phaedrus of Plato, Socrates says

that this is what Pericles was superior to all other orators in, that

he had been a pupil of Anaxagoras the natural philosopher. And it was

owing to him, in his opinion, (though he had learnt also many other

splendid and admirable accomplishments,) that he was so copious and

imaginative, and so thoroughly aware--which is the main thing in

eloquence--by what kinds of speeches the different parts of men's

minds are moved.

And we may draw the same conclusion from the case of Demosthenes; from

whose letters it may be gathered what a constant pupil of Plato's

he was. Nor, indeed, without having studied in the schools of

philosophers, can we discern the genus and species of everything; nor

explain them by proper definitions; nor distribute them into their

proper divisions; nor decide what is true and what is false; nor

discern consequences, perceive inconsistencies, and distinguish what

is doubtful. Why should I speak of the nature of things, the knowledge

of which supplies such abundance of topics to oratory? or of life, and

duty, and virtue, and manners? for what of all these things can be

either spoken of or understood without a long study of those matters?

V. To these numerous and important things there are to be added

innumerable ornaments, which at that time were only to be derived from

those men who were accounted teachers of oratory. The consequence is,

that no one applies himself to that genuine and perfect eloquence,

because the study requisite for understanding those matters is

different from that which enables me to speak of them; and because it

is necessary to go to one class of teachers to understand the things,

and to another to learn the proper language for them. Therefore Marcus

Antonius, who in the time of our fathers was considered to be the most

eminent of all men alive for eloquence, a manly nature very acute and

eloquent, in that one treatise which he has left behind him, says that

he has seen many fluent speakers, but not one eloquent orator, in

truth, he had in his mind a model of eloquence which in his mind he

saw, though he could not behold it with his eyes. But he, being a man

of the most acute genius, (as indeed he was,) and feeling the want of

many things both in himself and other men, saw absolutely no one who

had fairly a right to be called eloquent. But if he did not think

either himself or Lucius Crassus eloquent, then he certainly must

have had in his mind some perfect model of eloquence; and as that

had nothing wanting, he felt himself unable to include those who had

anything or many things wanting in that class.

Let us then, O Brutus, if we can, investigate the nature of this man

whom Antonius never beheld, or who perhaps has never even existed; and

if we cannot imitate and copy him exactly, (which indeed Antonius said

was scarcely possible for a god to do,) still we may perhaps be able

to explain what he ought to be like.

VI. There are altogether three different kinds of speaking, in each of

which there have been some eminent men; but very few (though that is

what we are now looking for) who have been equally eminent in all. For

some have been grandiloquent men, (if I may use such an expression,)

with an abundant dignity of sentiments and majesty of language,

--vehement, various, copious, authoritative; well adapted and prepared

to make an impression on and effect a change in men's feelings: an

effect which some have endeavoured to produce by a rough, morose,

uncivilized sort of speaking, not elaborated or wrought up with any

care; and others employ a smooth, carefully prepared, and well rounded

off style.

On the other hand, there are men neat, acute, explaining everything,

and making matters clearer, not nobler, polished up with a certain

subtle and compressed style of oratory; and in the same class there

are others, shrewd, but unpolished, and designedly resembling rough

and unskilful speakers; and some who, with the same barrenness and

simplicity, are still more elegant, that is to say, are facetious,

flowery, and even slightly embellished.

But there is another class, half-way between these two, and as it were

compounded of both of them, endowed neither with the acuteness of the

last-mentioned orators, nor with the thunder of the former; as a sort

of mixture of both, excelling in neither style; partaking of both, or

rather indeed (if we would adhere to the exact truth) destitute of all

the qualifications of either. Those men go on, as they say, in one

uniform tenor of speaking, bringing nothing except their facility and

equalness of language; or else they add something, like reliefs on a

pedestal, and so they embellish their whole oration, with trifling

ornaments of words and ideas.

VII. Now, whoever have by themselves arrived at any power in each of

these styles of oratory, have gained a great name among orators; but

we must inquire whether they have sufficiently effected what we want.

For we see that there have been some men who have been ornate and

dignified speakers, being at the same time shrewd and subtle arguers.

And I wish that we were able to find a model of such an orator among

the Latins. It would be a fine thing not to be forced to have recourse

to foreign instances, but to be content with those of our own country.

But though in that discourse of mine which I have published in the

Brutus, I have attributed much credit to the Latins,--partly

to encourage others, and partly out of affection for my own

countrymen,--I still recollect that I by far prefer Demosthenes to all

other men, inasmuch as he adapted his energy to that eloquence which

I myself feel to be such, and not to that which I have ever had any

experience of in any actual instance. He was an orator than whom

there has never existed one more dignified, nor more wise, nor more

temperate. And therefore it is well that we should warn those men

whose ignorant conversation is getting to have some notoriety and

weight, who wish either to be called Attic speakers, or who really

wish to speak in the Attic style, to fix their admiration on this man

above all others, than whom I do not think Athens itself more Attic.

For by so doing they may learn what Attic means, and may measure

eloquence by his power and not by their own weakness; for at present

every one praises just that which he thinks that he himself is able

to imitate. But still I think it not foreign to my present subject to

remind those who are endowed with but a weak judgment, what is the

peculiar merit of the Attic writers.

VIII. The prudence of the hearers has always been the regulator of

the eloquence of the orators. For all men who wish to be approved of,

regard the inclination of those men who are their hearers, and form

and adapt themselves entirely which of the Greek rhetoricians

ever drew any of his rules from Thucydides? Oh, but he is praised

universally. I admit that, but it is on the ground that he is a wise,

conscientious, dignified relater of facts, not that he was pleading

causes before tribunals, but that he was relating wars in a history.

Therefore, he was never accounted an orator; nor, indeed, should we

have ever heard of his name if he had not written a history, though he

was a man of eminently high character and of noble birth. But no one

ever imitates the dignity of his language or of his sentiments, but

when they have used some disjointed and unconnected expressions, which

they might have done without any teacher at all, then they think that

they are akin to Thucydides. I have met men too who were anxious to

resemble Xenophon, whose style is, indeed, sweeter than honey, but as

unlike as possible to the noisy style of the forum.

X Let us then return to the subject of laying a foundation for

the orator whom we desire to see, and of furnishing him with that

eloquence which Antonius had never found in any one. We are, O Brutus,

undertaking a great and arduous task, but I think nothing difficult to

a man who is in love. But I am and always have been in love with your

genius, and your pursuits, and your habits. Moreover, I am every day

more and more inflamed not only with regret,--though I am worn away

with that while I am wishing to enjoy again our meetings and our daily

association, and your learned discourse,--but also with the admirable

reputation of your incredible virtues, which, though different in

their kind, are united by your prudence. For what is so different or

remote from severity as courtesy? And yet who has ever been considered

either more conscientious or more agreeable than you? And what is

so difficult as, while deciding disputes between many people, to be

beloved by all of them? Yet you attain this end, of dismissing in a

contented and pacified frame of mind the very parties against whom you

decide. Therefore, while doing nothing from motives of interest

you still contrive that all that you do should be acceptable. And

therefore, of all the countries on earth, Gaul[59] is now the only one

which is not affected by the general conflagration, while you yourself

enjoy your own virtues in peace, knowing that your conduct is

appreciated in this bright Italy, and surrounded as you are by the

flower and strength of the citizens.

And what an exploit is that, never, amid all your important

occupations, to interrupt your study of philosophy! You are always

either writing something yourself or inviting me to write something.

Therefore, I began this work as soon as I had finished my Cato, which

I should never have meddled with, being alarmed at the aspect of the

times, so hostile to virtue, if I had not thought it wicked not to

comply with your wishes, when you were exhorting me and awaking in me

the recollection of that man who was so dear to me, and I call you to

witness that I have only ventured to undertake this subject after many

entreaties on your part, and many refusals on mine. For I wish that

you should appear implicated in this fault, so that if I myself should

appear unable to support the weight of such a subject, you may bear

the blame of having imposed such a burden on me, and I only that

of having undertaken it. And then the credit of having had such a

commission given me by you, will make amends for the blame which the

deficiency of my judgment will bring upon me.

XI. But in everything it is very difficult to explain the form (that

which is called in Greek [Greek: charaktaer]) of perfection, because

different things appear perfection to different people. I am delighted

with Ennius, says one person, because he never departs from the

ordinary use of words. I love Pacuvius, says another, all his verses

are so ornamented and elaborate while Ennius is often so careless.

Another is all for Attius. For there are many different opinions, as

among the Greeks, nor is it easy to explain which form is the most

excellent. In pictures one man is delighted with what is rough harsh

looking, obscure, and dark, others care only for what is neat cheerful

and brilliant. Why should you, then give any precise command or

formula, when each is best in its own kind, and when there are many

kinds? However, these difficulties have not repelled me from this

attempt, and I have thought that in everything there is some point of

absolute perfection even though it is not easily seen, and, that it

can be decided on by a man who understands the matter.

But since there are many kinds of speeches, and those different, and

as they do not all fall under one form, the form of panegyric, and of

declamation, and of narration, and of such discourses as Isocrates has

left us in his panegyric, and many other writers also who are called

sophists; and the form also of other kinds which have no connexion

with forensic discussion, and of the whole of that class which is

called in Greek [Greek: epideiktikon], and which is made up as it were

for the purpose of being looked at--for the sake of amusement, I

shall omit at the present time. Not that they deserve to be entirely

neglected; for they are as it were the nursery of the orator whom we

wish to draw; and concerning whom we are endeavouring to say something

worth hearing.

XII. From this form is derived fluency of words; from it also the

combination and rhythm of sentences derives a freer licence. For

great indulgence is shown to neatly turned sentences; and rhythmical,

steady, compact periods are always admissible. And pains are taken

purposely, not disguisedly, but openly and avowedly, to make one word

answer to another, as if they had been measured together and were

equal to each other. So that words opposed to one another may be

frequently contrasted, and contrary words compared together, and that

sentences may be terminated in the same manner, and may give the same

sound at their conclusion; which, when we are dealing with actual

causes, we do much more seldom, and certainly with more disguise. But,

in his Panathenaic oration, Isocrates avows that he diligently kept

that object in view; for he composed it not for a contest in a court

of justice, but to delight the ears of his hearers.

They say that Thrasymachus of Chalcedon, and Gorgias of Leontini,

were the first men who taught this science; after him Theodorus of

Byzantium, and many others whom Socrates in the Phaedrus calls [Greek:

logodaidaloi]; who have said many things very tolerably clever, but

which seem as if they had arisen at the moment, trifling, and like

animals which change their colour, and too minutely painted. And this

is what makes Herodotus and Thucydides the more admirable; for though

they lived at the same time with those men whom I have named, still

they kept aloof as far as possible from such amusements, or I should

rather say from such follies. For one of them flows on like a tranquil

river, without any attempts at facetiousness; the other is borne on

in a more impetuous course, and relates warlike deeds in a warlike

spirit; and they are the first men by whom, as Theophrastus says,

history was stirred up to dare to speak in a more fluent and adorned

style than their predecessors had ventured on.

XIII. Isocrates lived in the age next to theirs; who is at all times

praised by us above all other orators of his class, even though you,

O Brutus, sometimes object in a jesting though not in an unlearned

spirit. But you will very likely agree with me when you know why I

praise him. For as Thrasymachus appeared to him to be too concise with

his closely measured rhythm, and Gorgias also, though they are the

first who are said to have laid down any rules at all for the harmony

of sentences; and as Thucydides was somewhat too abrupt and not

sufficiently round, if I may use such an expression; he was the first

who adopted a system of dilating his ideas with words, and filling

them up with better sounding sentences; and as by his own practice he

formed those men who were afterwards accounted the most eminent men in

speaking and writing, his house got to be reckoned a perfect school

of eloquence. Therefore, as I, when I was praised by our friend Cato,

could easily bear to be blamed by the rest; so Isocrates appears to

have a right to despise the judgment of other men, while he has the

testimony of Plato to pride himself on. For, as you know, Socrates is

introduced in almost the last page of the Phaedrus speaking in these

words:--"At present, O Phaedrus, Isocrates is quite a young man; but

still I delight in telling the expectations which I have of him."

"What are they?" says he. "He appears to me to be a man of too lofty

a genius to be compared to Lysias and his orations: besides, he has a

greater natural disposition for virtue; so that it will not be at all

strange if, when he has advanced in age, he will either surpass all

his contemporaries who turn their attention to eloquence, and in this

kind of oratory, to the study of which he is at present devoted, as if

they were only boys; or, if he is not content with such a victory, he

will then feel some sort of divine inspiration prompting him to desire

greater things. For there is a deep philosophy implanted by nature

in this man's mind." This was the augury which Socrates forms of him

while a young man. But Plato writes it of him when he has become an

old man, and when he is his contemporary, and a sort of attacker of

all the rhetoricians. And Isocrates is the only one whom he admires.

And let those men who are not fond of Isocrates allow me to remain in

error in the company of Socrates and Plato.

That then is a delightful kind of oratory, free, fluent, shrewd in

its sentiments, sweet sounding in its periods, which is found in that

demonstrative kind of speaking which we have mentioned. It is the

peculiar style of sophists; more suitable for display than for actual

contest; appropriate to schools and exhibitions; but despised in and

driven from the forum. But because eloquence is first of all trained

by this sort of food, and afterwards gives itself a proper colour and

strength, it appeared not foreign to our subject to speak of what is

as it were the cradle of an orator. However, all this belongs to the

schools, and to display: let us now descend into the battle-field and

to the actual struggle.

XIV. As there are three things which the orator has to consider; what

he is saying; and in what place, and in what manner he is saying each

separate thing; it seems on all accounts desirable to explain what is

best as to each separate subject, though in rather a different

manner from that in which it is usually explained in laying down the

principles of the science. We will give no regular rules, (for that

task we have not undertaken,) but we will present an outline and

sketch of perfect eloquence; nor will we occupy ourselves in

explaining by what means it is acquired, but only what sort of thing

it appears to us to be.

And let us discuss the two first divisions very briefly. For it is

not so much that they have not an important reference to the highest

perfection, as that they are indispensable, and almost common to

other studies also. For to plan and decide on what you will say are

important points, and are as it were the mind in the body; still they

are parts of prudence rather than of eloquence; and yet what matter is

there in which prudence is not necessary? This orator, then, whom we

wish to describe as a perfect one, must know all the topics suited to

arguments and reasons of this class. For since whatever can possibly

be the subject of any contest or controversy, gives rise to the

inquiry whether it exists, and what it is, and what sort of thing it

is; while we endeavour to ascertain whether it exists, by tokens; what

it is, by definitions; what sort of thing it is, by divisions of right

and wrong; and in order to be able to avail himself of these topics

the orator,--I do not mean any ordinary one, but the excellent one

whom I am endeavouring to depict,--always, if he can, diverts the

controversy from any individual person or occasion. For it is in his

power to argue on wider grounds concerning a genus than concerning

a part; as, whatever is proved in the universal, must inevitably be

proved with respect to a part. This inquiry, then, when diverted from

individual persons and occasions to a discussion of a universal genus,

is called a thesis. This is what Aristotle trained young men in, not

after the fashion of ordinary philosophers, by subtle dissertations,

but in the way of rhetoricians, making them argue on each side,

in order that it might be discussed with more elegance and more

copiousness; and he also gave them topics (for that is what he called

them) as heads of arguments, from which every sort of oration might be

applied to either side of the question.