But in persons, the first things considered are the natural qualities of health, figure, strength, age, and whether they are male or female. And all these concern the body alone. But the qualities of the mind, or how they are affected, depends on virtues, vices, arts, and want of art, or in another sense, on desire, fear, pleasure, or annoyance. And these are the natural circumstances which are principally considered.
In fortune, we look at a man's race, his friends, his children, his relations, his kinsmen, his wealth, his honours, his power, his estates, his freedom, and also at all the contraries to these circumstances. But in respect of place, some things arise from nature as, whether a place is on the coast or at a distance from the sea, whether it is level or mountainous, whether it is smooth or rough, wholesome or pestilential, shady or sunny, these again are fortuitous circumstances,—whether a place is cultivated or uncultivated frequented or deserted, full of houses or naked, obscure or ennobled by the traces of mighty exploits, consecrated or profane.
XI. But in respect of time, one distinguishes between the present, and the past, and the future. And in these divisions there are the further subdivisions of ancient, recent, immediate, likely to happen soon, or likely to be very remote. In time there are also these other divisions, which mark, as it were natural sections of time as winter, spring, summer and autumn. Or again, the periods of the year: as a month, a day, a night, an hour, a season, all these are natural divisions. There are other accidental divisions such as days of sacrifice, days of festival, weddings. Again, facts and events are either designed or unintentional, and these last arise either from pure accident, or from some agitation of mind, by accident when a thing has happened in a different way from what was expected,—from some agitation, when either forgetfulness, or mistake, or fear, or some impulse of desire has been the acting cause. Necessity, too, must be classed among the causes of unintentional actions or results.
Again, of good and bad things there are three classes. For they can exist either in men's minds or bodies, or they may be external to both of these materials, then, as far as they are subordinate to argument, all the parts must be carefully turned over in the mind, and conjectures bearing on the subject before us must be derived from each part.
There is also another class of arguments which is derived from traces of a fact, as a weapon, blood, an outcry which has been raised, trepidation, changes of complexion, inconsistency of explanation, trembling, or any of these circumstances which can be perceived by our senses, or if anything appears to have been prepared, or communicated to any one, or if anything has been seen or heard, or if any information has been given.
But of probabilities some influence us separately by their own weight, some, although they appear trifling by themselves, still, when all collected together, have great influence. And in such probabilities as these there are sometimes some unerring and peculiar distinguishing characteristics of things. But what produces the surest belief in a probability is, first of all, a similar instance, then the similarity of the present case to that instance sometimes even a fable, though it is an incredible one, has its influence, nevertheless, on men's minds.
XII.C. F.What next? What is the principle of definition, and what is the system of it?
C. P.There is no doubt but that definition belongs to the genus, and is distinguishable by a certain peculiarity of the characteristics which it mentions, or else by a number of common circumstances, from which we may extract something which looks like a peculiar property. But since there is often very great disagreement about what are peculiar properties, we must often derive our definitions from contraries, often from things dissimilar, often from things parallel. Wherefore descriptions also are often suitable in this kind of address, and an enumeration of consequences, and above all things, an explanation of the names and terms employed, is most effectual.
C. F.You have now then explained nearly all the questions which arise about a fact, or about the name given to such fact. The next thing is, when the fact itself and its proper title are agreed upon, that a doubt arises as to what its character is.
C. P.You are quite right.
C. F.What divisions, then, are there in this part of the argument?
C. P.One urges either that what has been done has been lawfully done, for the sake either of warding off or of avenging an injury, or under pretext of piety, or chastity, or religion, or one's country, or else that it has been done through necessity, out of ignorance, or by chance. For those things which have been done in consequence of some motion or agitation of the mind, without any positive intention, have, in legal proceedings, no defence if they are impeached, though they may have an excuse if discussed on principles unfettered by strict rules of law. In this class of discussion, in which the question is, what the character of the act is, one inquires, in the terms of the controversy, whether the act has been rightly and lawfully done or not; and the discussion on these points turns on a definition of the before-mentioned topics.
C. F.Since, then, you have divided the topics to give credit to an oration into confirmation and reprehension, and since you have fully discussed the one, explain to me now the subject of reprehension.
C. P.You must either deny the whole of what the adversary has assumed in argumentation, if you can show it to be fictitious or false, or you must refute what he has assumed as probable. First of all, you must urge that he has taken what is doubtful as if it were certain; in the next place, that the very same things might be said in cases which were evidently false; and lastly, that these things which he has assumed do not produce the consequences which he wishes to be inferred from them. And you must attack his details, and by that means break down his whole argument. Instances also must be brought forward which were overruled in a similar discussion; and you must wind up with the complaints of the condition of the general danger, if the life of innocent men is exposed to the ingenuity of men devoted to calumny.
XIII.C. F.Since I know now whence arguments can be derived which have a tendency to create belief, I am waiting to hear how they are severally to be handled in speaking.
C. P.You seem to be inquiring about argumentation, and as to how to develop arguments.
C. F.That is the very thing that I want to know.
C. P.The development, then, of an argument is argumentation; and that is when you assume things which are either certain or at least probable, from which to derive a conclusion, which taken by itself is doubtful, or at all events not very probable. But there are two kinds of arguing, one of which aims directly at creating belief, the other principally looks to exciting such and such feelings. It goes straight on when it has proposed to itself something to prove, and assumed grounds on which it may depend; and when these have been established, it comes back to its original proposition, and concludes. But the other kind of argumentation, proceeding as it were backwards and in an inverse way, first of all assumes what it chooses, and confirms it; and then, having excited the minds of the hearers, it throws on to the end that which was its original object. But there is this variety, and a distinction which is not disagreeable in arguing, as when we ask something ourselves, or put questions, or express some command, or some wish, as all these figures are a kind of embellishment to an oration. But we shall be able to avoid too much sameness, if we do not always begin with the proposition which we desire to establish, and if we do not confirm each separate point by dwelling on it separately, and if we are at times very brief in our explanation of what is sufficiently clear, and if we do not consider it at all times necessary to sum up and enumerate what results from these premises when it is sufficiently clear.
XIV.C. F.What comes next? Is there any way or any respect in which those things which are said to be devoid of art, and which you said just now were accessories to the main argument, require art?
C. P.Indeed they do. Nor are they called devoid of art because they really are so, but because it is not the art of the orator which produces them, but they are brought to him from abroad, as it were, and then he deals with them artistically; and this is especially the case as to witnesses. For it is often necessary to speak of the whole class of witnesses, and to show how weak it is; and to urge that arguments refer to facts, testimony to inclination; and one must have recourse to precedents of cases where witnesses were not believed; and with respect to individual witnesses, if they are by nature vain, trifling, discreditable, or if they have been influenced by hope, by fear, by anger, by pity, by bribery, by interest; and they must be compared with the authority of the witnesses in the case cited, where the witnesses were not believed. Often, also, one must resist examinations under torture, because many men, out of a desire to avoid pain, have often told lies under torture; and have preferred dying while confessing a falsehood to suffering pain while persisting in their denial. Many men, also, have been indifferent to the preservation of their own life, as long as they could save those who were dearer to them than they were to themselves; others, owing to the nature of their bodies, or to their being accustomed to pain, or because they feared punishment and execution, have endured the violence of torture; others, also, have told lies against those whom they hated. And all these arguments are to be fortified by instances. Nor is it at all uncertain that (since there are instances on both sides of a question, and topics also for forming conjectures on both sides) contrary arguments must be used in contrary cases. There is, also, another method of disparaging witnesses, and examinations under torture; for often those answers which have been given may be attacked very cleverly, if they have been expressed rather ambiguously or inconsistently, or with any incredible circumstances; or in different ways by different witnesses.
XV.C. F.The end of the oration remains to be spoken of by you; and that is included in the peroration, which I wish to hear you explain?
C. P.The explanation of the peroration is easy; for it is divided into two parts, amplification and enumeration. And the proper place for amplification is in the peroration, and also in the course of the oration there are opportunities of digressing for the purpose of amplification, by corroborating or refuting something which has been previously said. Amplification, then, is a kind of graver affirmation, which by exciting feelings in the mind conciliates belief to one's assertion. It is produced by the kind of words used, and by the facts dwelt upon. Expressions are to be used which have a power of illustrating the oration; yet such as are not unusual, but weighty, full-sounding, sonorous, compound, well-invented, and well-applied, not vulgar; borrowed from other subjects, and often metaphorical, not consisting of single words, but dissolved into several clauses, which are uttered without any conjunction between them, so as to appear more numerous. Amplification is also obtained by repetition, by iteration, by redoubling words, and by gradually rising from lower to loftier language; and it must be altogether a natural and lively sort of speech, made up of dignified language, well suited to give a high idea of the subject spoken of. This then is amplification as far as language goes. To the language there must be adapted expression of tone, of countenance, and gesture, all in harmony together and calculated to rouse the feelings of the hearers. But the cause must be maintained both by language and action, and carried on according to circumstances. For, because these appear very absurd when they are more vehement than the subject will bear, we must diligently consider what is becoming to each separate speaker, and in each separate case.
XVI. The amplification of facts is derived from all the same topics as those arguments which are adduced to create belief. And above all things, a number of accumulated definitions carries weight with it, and a repeated assertion of consequents, and a comparison of contrary and dissimilar facts, and of inconsistent circumstances. Causes too, and those things which arise from causes, and especially similarities and instances, are efficacious; so also are imaginary characters. Lastly, mute things may be introduced as speaking, and altogether all things are to be employed (if the cause will allow of them) which are considered important; and important things are divisible into two classes. For there are some things which seem important by nature, and some by use. By nature, as heavenly and divine things, and those things the causes of which are obscure, as those things which are wonderful on the earth and in the world, from which and from things resembling which, if you only take care, you will be able to draw many arguments for amplifying the dignity of the cause which you are advocating. By use; which appear to be of exceeding benefit or exceeding injury to men; and of these there are three kinds suitable for amplification.
For men are either moved by affection, for instance, by affections for the gods, for their country, or for their parents; or by love, as for their wives, their brothers, their children, or their friends; or by honourableness, as by that of the virtues, and especially of those virtues which tend to promote sociability among men, and liberality. From them exhortations are derived to maintain them; and hatred is excited against, and commiseration awakened for those by whom they are violated.
XVII. It is a very proper occasion for having recourse to amplification, when these advantages are either lost, or when there is danger of losing them. For nothing is so pitiable as a man who has become miserable after having been happy. And this is enough to move us greatly, if any one falls from good fortune; and if he loses all his friends; and if we have it briefly explained to us what great happiness he is losing or has lost, and by what evils he is overwhelmed, or is about to be overwhelmed. For tears soon dry, especially at another's misfortunes. Nor is there anything which it is less wise to exhaust than amplification. For all diligence attends to minutiae; but this topic requires only what is on a large scale. Here again is a matter for a man's judgment, what kind of amplification we should employ in each cause. For in those causes which are embellished for the sake of pleasing the hearers, those topics must be dealt with, which can excite expectation, admiration, or pleasure. But in exhortations the enumerations of instances of good and bad fortune, and instances and precedents, are arguments of great weight. In trials those topics are the most suitable for an accuser which tend to excite anger; those are usually the most desirable for a person on his trial which relate to raising pity. But some times the accuser ought to seek to excite pity, and the advocate for the defence may aim at rousing indignation.
Enumeration remains; a topic sometimes necessary to a panegyrist, not often to one who is endeavouring to persuade; and more frequently to a prosecutor than to a defendant. It has two turns, if you either distrust the recollection of those men before whom you are pleading, either on account of the length of time that has elapsed since the circumstances of which you are speaking, or because of the length of your speech; in this case your cause will have the more strength if you bring up numberless corroborative arguments to strengthen your speech, and explain them with brevity. And the defendant will have less frequent occasion to use them, because he has to lay down propositions which are contrary to them: and his defence will come out best if it is brief, and full of pungent stings. But in enumeration, it will be necessary to avoid letting it have the air of a childish display of memory; and he will best avoid that fault who does not recapitulate every trifle, but who touches on each particular briefly, and dwells only on the more weighty and important points.
XVIII.C. F.Since you have now discussed the orator himself and his oration, explain to me now the topic of questions, which you reserved for the last of the three.
C. P.There are, as I said at the beginning, two kinds of questions: one of which, that which is limited to times and persons, I call the cause; the other, which is infinite, and bounded neither by times nor by persons, I call the proposition. But consultation is, as it were, a part of the cause and controversy. For in the definite there is what is infinite, and nevertheless everything is referred to it. Wherefore, let us first speak of the proposition; of which there are two kinds: one of investigation; the end of this science, as for instance, whether the senses are to be depended upon; the other of action, which has reference to doing something: as if any one were to inquire by what services one ought to cultivate friendship. Again, of the former, namely, of investigation, there are three kinds: whether a thing is, or is not; what it is; of what sort it is. Whether it is or not, as whether right is a thing existing by nature or by custom. But what a thing is, as whether that is right which is advantageous to the greater number. And again, what sort of a thing anything is, as whether to live justly is useful or not.
But of action there are two kinds. One having reference to pursuing or avoiding anything; as for instance, by what means you can acquire glory, or how envy may be avoided. The other, which is referred to some advantage or expediency; as how the republic ought to be managed, or how a man ought to live in poverty.
But again in investigation, when the question is whether a thing is, or is not, or has been, or is likely to be. One kind of question is, whether anything can be effected; as when the question is whether any one can be perfectly wise. Another question is, how each thing can be effected; as for instance, by what means virtue is engendered, by nature, or reason, or use. And of this kind are all those questions in which, as in obscure subjects or those which turn on natural philosophy, the causes and principles of things are explained.
XIX. But of that kind in which the question is what that is which is the subject of discussion, there are two sorts; in the one of which one must discuss whether one thing is the same as another, or different from it; as whether pertinacity is the same as perseverance. But in the other one must give a description and representation as it were of some genus; as for instance, what sort of a man a miser is, or what pride is.
But in the third kind, in which the question is what sort of thing something is, we must speak either of its honesty, or of its utility, or of its equity. Of its honesty thus. Whether it is honourable to encounter danger or unpopularity for a friend. But of its expediency thus. Whether it is expedient to occupy oneself in the conduct of state affairs. But of its equity thus. Whether it is just to prefer one's friend to one's relations. And in the same kind of discussion, in which the question is what sort of thing something is, there arises another kind of way of arguing. For the question is not simply what is honourable, what is expedient, what is equitable; but also by comparison, which is more honourable, which is more expedient, which is more equitable; and even which is most honourable, which is most expedient, which is most equitable. Of which kind are those speculations, which is the most excellent dignity in life. And all these questions, as I have said before, are parts of investigation.
There remains the question of action. One kind of which is conversant with the giving of rules which relate to principles of duty; as, for instance, how one's parents are to be reverenced. And the other to tranquillising the minds of men and healing them by one's oration; as in consoling affliction, in repressing ill-temper, in removing fear, or in allaying covetousness. And this kind is exactly opposed to that by means of which the speaker proposes to engender those same feelings of the mind, or to excite them, which it is often requisite to do in amplifying an oration. And these are nearly all the divisions of consultation. XX.C. F.I understand you. But I should like to hear from you what in these divisions is the proper system for discovering and arranging the heads of one's discourse.
C. P.What? Do you think it is a different one, and not the same which has been explained, so that everything may be deduced from the same topics, both to create belief, and to discover arguments? But the system of arrangement which has been explained as appropriate to other kinds of speeches may be transferred to this also.
Since therefore we have now investigated the entire arrangement of the consultations which we proposed to discuss, the kinds of causes are now the principal things which remain. And their species is twofold; one of which aims at affording gratification to the ears, while the whole object of the other is to obtain, and prove, and effect the purpose which it has in view. Therefore the former is called embellishment, and as that may be a kind of extensive operation, and sufficiently various, we have selected one instance of it which we adopt for the purpose of praising illustrious men, and of vituperating the wicked ones. For there is no kind of oration which can be either more fertile in its topics, or more profitable to states, or in which the orator is bound to have a more extensive acquaintance with virtues and vices. But the other class of causes is conversant either with the foresight of the future, or with discussions on the past. One of which topics belongs to deliberation and the other to judgment. From which division three kinds of causes have arisen; one, which, from the best portion of it, is called that of panegyric; another that of deliberation; the third that of judicial decisions. Wherefore let us first, if you please, discuss the first.
C. F.Certainly, I do please.
XXI.C. P.And the systems of blaming and praising, which have influence not only on speaking well but also on living honourably, I will explain briefly; and I will begin from the first principles of praise and blame. For everything is to be praised which is united with virtue; and everything which is connected with vice is to be blamed. Wherefore the end of the one is honour, of the other baseness. But this kind of discourse is composed of the narration and explanation of facts, without any argumentations, in a way calculated to handle the feelings of the mind gently rather than to create belief or to confirm it in a suitable manner. For they are not doubtful points which are established in this way; but those which being certain, or at least admitted as certain, are enlarged upon. Wherefore the rules for narrating them and enlarging upon them must be sought for from among those which have been already laid down.
And since in these causes the whole system has reference generally to the pleasure and entertainment of the hearer, the speakers must employ in them all the beauties of those separate expressions which have in them the greatest amount of sweetness. That is, he must often use newly-coined words, and old-fashioned words, and metaphorical language; and in the very construction of his periods he must often compare like with like, and parallel cases with parallel. He must have recourse to contrasts, to repetitions, to harmoniously-turned sentences, formed not like verses, but to gratify the sensations of the ears by as it were a suitable moderation of expression. And those ornaments are frequently to be employed, which are of a marvellous and unexpected character, and also those which are full of monsters, and prodigies, and oracles. And also those things must be mentioned which appeared to have befallen the man of whom the orator is speaking in consequence of some divine interposition, or decree of destiny. For all the expectation and admiration of the hearer, and all unexpected terminations, contribute to the pleasure which is felt in listening to the orator.
XXII. But since advantages or evils are of three classes, external, affecting the mind, or affecting the body, the first are external which are derived from the genus; and this being praised in brief and moderate terms, or, if it is discreditable, being passed over; if it is of a lowly nature, being either passed over, or handled in such a way as to increase the glory of him whom you are praising. In the next place, if the case allows it, we must speak of his fortune and his abilities, and after that of his personal qualifications; among which it is very natural to praise his beauty, which is one of the greatest indications of virtue. After that we must come to his actions. The arrangement is threefold. For we must have regard either to the order of time, or the most recent actions must be spoken of first, or else many and various actions of his must be classified according to the different kinds of virtue which they display. But this topic of virtues and vices, which is a very extensive one, will now be brought into a very brief and narrow compass, instead of the many and various volumes in which philosophers have discussed it.
The power of virtue then is twofold, for virtue is distinguished either by theory or by practice. For that which is called prudence, or shrewdness, or (if we must have the most dignified title for it) wisdom, is all theoretical. But that which is praised as regulating the passions, and restraining the feelings of the mind, finds its exercise in practice. And its name is temperance. And prudence when exerted in a man's own business is called domestic, when displayed in the affairs of the state is called civil prudence. But temperance in like manner is divided according to its sphere of action, whether displayed in a man's own affairs, or in those of the state. And it is discerned in two ways with respect to advantages, both by not desiring what it has not got, and by abstaining from what it is in its power to get. Again, in the case of disadvantages it is also twofold; for that quality which resists impending evils is called fortitude; that which bears and endures the evil that is present is termed patience. And that which embraces these two qualities is called magnanimity. And one of the forms of this virtue is shown in the use of money. And at the same time loftiness of spirit in supporting disadvantages, and especially injuries, and everything of the sort, being grave, sedate, and never turbulent. But that division of virtue which is exercised between one being and another is called justice. And that when exercised towards the gods is called religion; towards one's relations, affection; towards all the world, goodness; when displayed in things entrusted to one, good faith; as exhibited in moderation of punishment, lenity; when it develops itself in goodwill towards an individual its name is friendship.
XXIII. And all these virtues are visible in practice. But there are others, which are as it were the handmaidens and companions of wisdom; one of which distinguishes between and decides what arguments in a discussion are true or false, and what follows from what premises. And this virtue is wholly placed in the system and theory of arguing; but the other virtue belongs to the orator. For eloquence is nothing but wisdom speaking with great copiousness; and while derived from the same source as that which is displayed in disputing, is more rich, and of wider application, better suited to excite the minds of men and to work on the feelings of the common people. But the guardian of all the virtues, which avoids all conspicuousness, and yet attains the greatest eminence of praise, is modesty. And these are for the most part certain habits of mind, so affected and disposed as to be each of them distinguished from one another by some peculiar kind of virtue; and according as everything is done by one of them, in the same proportion must it be honourable and in the highest degree praiseworthy. But there are other habits also of a well-instructed mind which has been cultivated beforehand as it were, and prepared for virtue by virtuous pursuits and accomplishments: as in a man's private affairs, the studies of literature, as of tunes and sounds, of measurement, of the stars, of horses, of hunting, of arms. In the affairs of the commonwealth his eager pursuit of some particular kind of virtue, which he selects as his especial object of devotion, in discharging his duty to the gods, or in showing careful and remarkable affection to his relations, his friends, or those connected with family ties of hospitality. And these then are the different kinds of virtue. But those of vice are their exact contraries.
But these also must be examined carefully, so that those vices may not deceive us which appear to imitate virtue. For cunning tries to assume the character of prudence, and moroseness, in despising pleasures, wishes to be taken for temperance; and pride, which puffs a man up, and which affects to despise legitimate honours, seeks to vaunt itself as magnanimity; prodigality calls itself liberality, audacity imitates courage, hardhearted sternness imitates patience, bitterness justice, superstition religion, weakness of mind lenity, timidity modesty, captiousness and carping at words wishes to pass for acuteness in arguing, and an empty fluency of language for this oratorical vigour at which we are aiming. And those, too, appear akin to virtuous pursuits, which run to excess in the same class.
Wherefore all the force of praise or blame must be derived from these divisions of virtues and vices. But in the whole context, as it were, of the oration, these points must above all others be made clear,—how each person spoken of has been born, how he has been educated, how he has been trained, and what are his habits; and if any great or surprising thing has happened to any one, especially if anything which has happened should appear to have befallen him by the interposition of the gods; and also whatever the person in question has thought, or said, or done, must be adapted to the different kinds of virtue which have been enumerated, and from the same topics we must inquire into the causes of things, and the events, and the consequences. Nor ought the death of those men, whose life is praised, to be passed over in silence; provided only, there be anything noticeable either in the manner of their death, or in the consequences which have resulted from their death.
XXIV.C. F.I have attended to what you say, and I have learnt briefly, not only how to praise another, but also how to endeavour to deserve to be praised myself. Let us, then, consider in the next place what system and what rules we are to observe in delivering our sentiments.
C. P.In deliberation, then, the end aimed at is utility, to which everything is referred in giving counsel, and in delivering our sentiments, so that the first thing which requires to be noticed by any one who is advising or dissuading from such and such a course of action is what is possible to be done, or what is impossible; or what is necessary to be done, or what is unnecessary. For if a thing be impossible there is no use in deliberating about it, however desirable it may be; and if a thing be necessary, (when I say necessary, I mean such that without it we cannot be safe or free), then that must be preferred to everything else which is either honourable or advantageous in public affairs. But when the question is, What can be done? we must also consider how easily it can be done: for the things which are very difficult are often to be considered in the same light as if they were totally impossible. And when we are discussing necessity, although there may be something which is not absolutely necessary, still we must consider of how much importance it is. For that which is of very great importance indeed, is often considered necessary. Therefore, as this kind of cause consists of persuasion and dissuasion, the speaker who is trying to persuade, has a simple course before him; if a thing is both advantageous and possible, let it be done. The speaker who is trying to dissuade his hearers from some course of action, has a twofold division of his labour. One, if it is not useful it must not be done; the other, if it is impossible it must not be undertaken. And so, the speaker who is trying to persuade must establish both these points; the one whose object it is to dissuade, may be content with invalidating either.
Since, then, all deliberation turns on these two points, let us first speak of utility, which is conversant about the distinction between advantages and disadvantages. But of advantages, some are necessarily such; as life, chastity, liberty, or as children, wives, relations, parents; and some are not necessarily such; and of these last, some are to be sought for their own sakes, as those which are classed among the duties or virtues, and others are to be desired because they produce some advantage, as riches and influence. But of those advantages which are sought for their own sake, some are sought for their honourableness, some for their convenience, which is inherent in them: those are sought for their honourableness which proceed from those virtues which have been mentioned a little while ago, which are intrinsically praiseworthy on their own account; but those are sought on account of some inherent advantage which are desirable as to goods of fortune or of the body: some of which are to a certain extent combined with honourableness, as honour, and glory; some have no connexion with that, as strength, beauty, health, nobleness, riches, troops of dependents. There is also a certain sort of matter, as it were, which is subordinate to what is honourable, which is most particularly visible in friendship. But friendships are seen in affection and in love. For regard for the gods, and for our parents, and for our country, and for those men who are eminent for wisdom or power, is usually referred to affection; but wives, and children, and brothers, and others whom habit and intimacy has united with us, although they are bound to us by affection, yet the principal tie is love. As, then, you know now what is good in these things, it is easily to be understood what are the contrary qualities.
XXV. But if we were able always to preserve what is best, we should not have much need of deliberation, since that is usually very evident. But because it often happens on account of some peculiarity in the times, which has great weight, that expediency is at variance with what is honourable, and since the comparison of the two principles gives rise to deliberation, lest we should either pass over what is seasonable, on account of some considerations of dignity, or what is honourable on account of some idea of expediency, we may give examples to guide us in explaining this difficulty. And since an oration must be adapted not only to truth, but also to the opinions of the hearers, let us first consider this, that there are two kinds of men: one of them unlettered and rustic, always preferring what is expedient to what is honourable; the other, accomplished and polite, preferring dignity to everything. Therefore, the one class sets its heart upon, praise, honour, glory, good faith, justice, and every virtue; but the other regards only gain, emolument, and profit. And even pleasure, which is above all things hostile to virtue, and which adulterates the nature of what is good by a treacherous imitation of it, which all men of grosser ideas eagerly follow, and which prefers that spurious copy, not only to what is honourable, but even to what is necessary, must often be praised in a speech aiming at persuasion, when you are giving counsel to men of that sort.
XXVI. This also must be considered, how much greater eagerness men display in fleeing from what is disadvantageous, than in seeking what is advantageous; for they are in the same manner not so zealous in seeking what is honourable, as in avoiding what is base. For who ever seeks for honour, or glory, or praise, or any kind of credit as earnestly as he flees from ignominy, infamy, contumely, and disgrace? For these things are attended with great pain. There is a class of men born for honour, not corrupted by evil training and perverted opinions—on which account, when exhorting or persuading, we must keep in view the object of teaching them by what means we may be able to arrive at what is good, and to avoid what is evil. But before men who have been properly brought up we shall dwell chiefly on praise and honourableness, and speak chiefly of those kinds of virtues which are concerned in maintaining and increasing the general advantage of men. But if we are speaking before uneducated and ignorant men, then we shall set before them profits, emoluments, pleasures, and the means of escaping pain; we shall also introduce the mention of insult and ignominy; for no one is such a clown, as not (even though honour itself may have no influence on him) to be greatly moved by insult and disgrace.
Wherefore we must find out from what has been already said, what has reference to utility; but as to what is possible to be done or not, with reference to which people usually inquire also how easily a thing can be done, and how far it is desirable that it should be done, we must consider chiefly with reference to those causes which produce each separate result. For there are some causes which of themselves produce results, and some which only contribute to the production of a result. Therefore, the first are called efficient causes; and the last are classed as such, that without them a thing cannot be brought about. Again, of efficient causes, some are complete and perfect in themselves; some are accessory to, and, as it were, partners in the production of the result in question. And of this kind the effect is very much diversified, being sometimes greater or less; so that which is the most efficacious is often called the only cause, though it is in reality but the main one. There are also other causes which, either on account of their origin or on account of their result, are called efficient causes. But when the question is, what is best to be done, then it is either utility or the hope of doing it which urges men's minds to agree with the speaker. And since we have now said enough about utility, let us speak of the means of effecting it.
XXVII. And on this point of the subject we must consider with whom, and against whom, and at what time, and in what place we are to do such and such a thing, also what means of arms, money, allies, or those other things which relate to the doing of any particular thing we have it in our power to employ. Nor must we consider only those means which we have, but those circumstances also which are unfavourable to us. And if in the comparison the advantages preponderate, then we must persuade our hearers, not only that what we are advising can be effected, but we must also take care that it shall appear easy, manageable, and agreeable. But if we are dissuading from any particular course, then we must either disparage the utility of it, or we must make the most of the difficulties of doing it, not having recourse to other rules, but to the same topics as are used when trying to persuade our hearers to anything. And whether persuading or dissuading, the speaker must have a store of precedents, either modern, which will be the best known, or ancient, which will perhaps have the most weight. And in this kind of discourse he must consider how he may be able often to make what is useful or necessary appear superior to what is honourable, orvice versâ. But sentiments of this kind will have great weight in influencing men's minds, (if it is desirable to make an impression on them,) which relate either to the gratification of people's desires, or to the glutting of hatred, or to the avenging of injury. But if the object is to repress the feelings of the hearers, then they must be reminded of the uncertainty of fortune, of the doubtfulness of future events, and of the risk there may be of retaining their existing fortune, if it is good; and on the other hand, of the danger of its lasting if it is bad. And these are topics for a peroration. But in expressing one's opinions, the opening ought to be short, for the orator does not come forth as a suppliant, as if he were speaking before a judge, but as an exhorter and adviser. Wherefore, he ought to settle beforehand with what intention he is going to speak, what his object is, what the subject of his discourse is to be, and he ought to exhort his hearers to listen to him while he detains them but a short time. And the whole of his oration ought to be simple, and dignified, and embellished rather by its sentiments than by its expressions.
XXVIII.C.F.I understand the topics of panegyric and persuasion. Now I am waiting to hear what is suited to judicial oratory, and I think that that is the only subject remaining.
C.P.You are quite right. And of that kind of oratory the object is equity, which is regarded, not in a single point of view only, but very often by a sort of comparison: as when there is a dispute as to who is the most appropriate prosecutor; or when the possession of an inheritance is sought for without any express law, or without any will. In which causes the question is, which alternative is the more equitable or which is most equitable. And for these causes a supply of arguments is sought for out of those topics of equity which will be mentioned presently. And even before the decision is given, there is often a dispute about the constitution of the bench of judges, when the question is either whether the person who brings the action has a right of action, or whether he has it at the present time, or whether he has ceased to have it, or whether the action ought to be brought under the provisions of this law, or according to that formula. And if these points are not discussed, or settled, or decided, before the case is brought into court, still they often have very great weight even at the trial itself, when the case is stated in this way:—"You demanded too much; you demanded it too late; it was not your business to make such a demand at all; you ought not to have demanded it of me; or you ought not to have done so under this law, or in accordance with this formula, or in this court." And this class of cases belongs to civil law, which depends on laws respecting public and private affairs, or on precedent; and the knowledge of it seems to have been neglected by most orators, but to us it appears very necessary for speaking. Wherefore, as to arranging the right of action, as to accepting or standing a trial, as to demurring to the illegality of a proceeding, as to comparisons of justice, all which topics usually belong to this class of oration, so that although they often get mixed up with the judicial proceedings, still they appear to deserve to be discussed separately; and therefore I separate them a little from the judicial proceedings, more, however, as to the time at which they are to be introduced into the discussion, than from any real diversity of character. For all discussions which are introduced about civil law, or about what is just and good, belong to that sort of discussion in which we doubt what sort of thing such and such a thing which we are going to mention is. And this question turns chiefly on equity and right.
XXIX. In all causes, then, there are three degrees, of which one at least is to be taken for the purposes of defence, if you are limited to one. For you must either take your stand in denying that the act imputed to you has been done at all, or in denying that that which you admit to have been done has the effect which, and is of the character which, the adversary asserts. Or if there can be no doubt as to the action, or the proper name of the action, then you must deny that what you are accused of is such as he states it to be; and you must urge in your defence that what you have done must be admitted to be right. Accordingly, the first objection,—the first point of conflict with the adversary, as I may call it, depends on a kind of conjecture; the second, on a kind of definition, or description, or notion of the word; but the third plea is to be maintained by a discussion on equity, and truth, and right, and on the becomingness to man of a disposition inclined to pardon. And since he who defends ought not always to resist the accuser by some objection, or denial, or definition, or opposite principles of equity, but should also at times advance general principles on which he founds his defence, the first kind of objection has in it the principle of asserting the charge to be unjust, an absolute denial of the fact; the second urges that the definition given by the adversary does not apply to the action in question the third consists in the advocate defending the action as having been rightly done, without raising any dispute as to the name of it.
In the next place, the accuser must oppose to every argument that, which if it were not in the accusation, would prevent, there being any cause at all. Therefore, those arguments which are brought forward in that way, are said to be the foundations of causes, although those which are brought forward in opposition to the plan of the defence, are no more so in reality than the principles of the defence themselves; but for the sake of distinction, we call that a reason which is urged by the party on his trial in the way of demurrer for the sake of repelling an accusation; and unless he had such a refuge he would have nothing to allege by way of defence: but the foundation of his defence is that which is alleged by way of undermining the arguments of the adversary, without which the accusation can have no ground to stand upon.
XXX. But from the meeting and conflict, as it were, of the reasons and of the corroborative proofs, a question arises, which I call a dispute, in which the question is, what is the question before the court, and what the dispute is about. For the first point which the adversaries contend for implies an inquiry of large extent in conjecture: as "Whether Decius has received the money;" in definition, as "Whether Norbanus has committed treason against the people;" in justice, as "Whether Opimius slew Gracchus lawfully." These questions which come into conflict first by arguing and resisting, are, as I have said, of wide extent and doubtful meaning. The comparison of the arguments and corroborative proofs narrows the question in dispute. In conjecture there is no dispute at all. For no one either can, or ought to, or is accustomed to, give a reason for an act which he asserts never took place. Therefore, in these causes the original question and the ultimate dispute are one and the same thing. But in them, when the assertion is advanced, "He did not commit treason in proceeding to violent measures in respect to Caepio; for it was the first indignation of the Roman people that prompted that violent conduct, and not the conduct of the tribune: and the majesty, since it is identical with the greatness of the Roman people, was rather increased than diminished by retaining that man in power and office." And when the reply is, "Majesty consists of the dignity of the empire and name of the Roman people, which that man impairs, who excites sedition by appealing to the violent passions of the multitude;" then comes the dispute, Whether his conduct was calculated to impair that majesty, who acted upon the inclinations of the roman people, so as to do a thing which was both just and acceptable to them by means of violence. But in such causes as these, when it is alleged in defence of the accused party that something has been rightly done, or when it must be admitted that it has been done, while the principle of the act is open to discussion: as in the case of Opimius, "I did it lawfully, for the sake of preserving the general safety and the republic;" and when Decius replies, "You had no power or right to slay even the wickedest of the citizens without a trial." Then arises the dispute, "Had Opimius lawfully the power, for the sake of the safety of the republic, to put to death a citizen who was overturning the republic, without his being condemned?" And so those disputes which arise in these controversies which are marked out by certain persons and times become gradually infinite, and after the times and persons are put out of the question, are again reduced to the form and rules under which their merits can be discussed.
XXXI. But in corroborative arguments of the most important character, those points must also be established which can be opposed to the defence, being derived either from the letter of the law, or of a will, or from the language of a judicial decision, or of a stipulation, or of a covenant. And even this kind has no connexion with those causes which depend upon conjecture. For when an action is denied altogether, it cannot be impeached by reference to the letter of the law. It does not even come under definition, as to the character of the letter of the law itself. For although some expression or other is to be defined by reference to the letter of the law, so as to be sure what meaning it has: as when the question arises out of a will, what is meant by provisions, or out of the covenant of a lease, what are moveables or fixtures; then it is not the fact of there being written documents, but the interpretation of what is written, that gives rise to controversy. But when many things may be implied by one expression, on account of the ambiguity of some word or words, so that he who is speaking on the other side may be allowed to draw the meaning of what is written as is advantageous to him, or in fact, as he pleases; or, if the document be not drawn up in ambiguous language, he may either deduce the wish and intention of the writer from the words, or else say that he can defend what has been done by a document which is perfectly different relating to the same facts; then a dispute arises from a comparison of the two written documents; so that the writings being ambiguous, it is a question which is most strongly implied; and in a comparison between the letter and the spirit of the documents an argument is adduced to show which the judge is the most bound to be guided by; or in documents of a wholly contradictory nature, which is the most to be approved.
But when the point in dispute is once established, then the orator ought to keep in view, what is to be proved by all the arguments derived from the different topics for discovering arguments. And although it is quite sufficient for him who sees what is concealed in each topic, and who has all those topics, as a kind of treasury of arguments, at his fingers' ends; still we will touch upon those which are peculiar to certain causes.
XXXII. In conjecture, then, when the person on his trial takes refuge in denial of the fact, these are the two first things for the accuser to consider, (I say accuser, meaning every kind of plaintiff or commencer of an action; for even without any accuser, in the strict sense of the word, these same kinds of controversies may frequently arise;) however, these are his first points for consideration, the cause and the event. When I say the cause, I mean the reason for doing a thing. When I say the event, I mean that which was done. And this same division of cases was made just now, when speaking of the topics of persuasion. For the rules which were given in deliberating upon the future, and how they ought to have a bearing upon utility, or a power of producing effects, a man who is arguing upon a fact is bound to collect, so as to show that they must have been useful to the man whom he is accusing, and that the act might possibly have been done by him. The question of utility, as far as it depends upon conjecture, is opened, if the accused person is said to have done the act of which he is accused, either out of the hope of advantage or the fear of injury. And this argument has the greater weight, the greater the advantages or disadvantages anticipated are said to be. With reference to the motive for an action we take into consideration also the feelings of minds, if any recent anger, or long-standing grudge, or desire for revenge, or indignation at an injury; if any eagerness for honour, or glory, or command, or riches; if any fear of danger, any debt, any difficulties in pecuniary matters, have had influence; if the man is bold, or fickle, or cruel, or intemperate, or incautious, or foolish, or loving, or excitable, or given to wine; if he had any hope of gaining his point, or any expectation of concealing his conduct; or, if that were detected, any hope of repelling the charge, or breaking through the danger, or even postponing it to a subsequent time; or if the penalty to be inflicted by a court of justice is more trifling than the prize to be gained by the act; or if the pleasure of the crime is greater than the pain of the conviction.
It is generally by such circumstances as these that the suspicion of an act is confirmed, when the causes why he should have desired it are found to exist in the party accused, together with the means of doing it. But in his will we look for the benefit which he may have calculated on from the attainment of some advantage, or the avoidance of some disadvantage, so that either hope or fear may seem to have instigated him, or else some sudden impulse of the mind, which impels men more swiftly to evil courses than even considerations of utility. So this is enough to have said about the causes.
C.F.I understand; and I ask you now what the events are which you have said are produced by such causes?
XXXIII.C.P.They are certain consequential signs of what is past, certain traces of what has been done, deeply imprinted, which have a great tendency to engender suspicion, and are, as it were, a silent evidence of crimes, and so much the more weighty because all causes appear as a general rule to be able to give ground for accusations, and to show for whose advantage anything was; and these arguments have an especial propriety of reference to those who are accused, such as a weapon, a footstep, blood, the detection of anything which appears to have been carried off or taken away; or any reply inconsistent with the truth, or any hesitation, or trepidation, or the fact of the accused person having been seen with any one whose character is such as to give rise to suspicion; or of his having been seen himself in that very place in which the action was done; or paleness, or tremor, or any writing, or anything having been sealed up or deposited anywhere. For these are circumstances of such a nature as to make the charge full of suspicion, either in connexion with the act itself, or with the time previous or subsequent to it. And if they are not so, still it will be proper to rely on the causes themselves, and on the means which the accused person had of doing the action, with the addition of that general argument, that he was not so insane as to be unable to avoid or conceal any indications of the action, so as to be discovered and to give ground for an accusation. On the other hand, there is that common topic, that audacity is joined to rashness, not to prudence. Besides, there comes the topic suited to amplification, that we are not to wait for his confessing; that offences are proved by arguments; and here, too, precedents will be adduced. And thus much about arguments.
XXXIV. But if there is also a sufficiency of witnesses, the first thing will be to praise the party accused, and to say that he himself has taken care not to be convicted by argument; that he could not escape from witnesses: then each of the witnesses must be praised, (and we have stated already what are the things for which people can be praised;) and in the next place, it must be urged that it is possible for it to be quite justifiable not to yield to a specious argument, (inasmuch as such an one is often false,) but quite impossible to refuse belief to a good and trusty man, unless there is some fault in the judge. And then, too, if the witnesses are obscure or insignificant, we must say that a man's credit is not to be estimated by his fortune, but that those are the most trustworthy witnesses on every point who have the easiest means of knowing the truth of the matter under discussion. If the fact of an examination of slaves under torture having taken place, or a demand that such should take place, will assist the cause, then in the first place the general character of such examinations must be extolled: we must speak of the power of bodily pain; of the opinion of our ancestors, who would certainly have abolished the whole system if they had not approved of it; of the customs of the Athenians and Rhodians, very wise men, among whom (and that is a most terrible thing) even freemen and citizens are tortured; of the principles also of the most prudent of our own countrymen, who though they are unwilling to allow slaves to be examined against their masters, still did allow of such examination in the case of incest and conspiracy,—and in fact such an examination took place in my consulship. That declamation which men are in the habit of using to throw discredit on such examinations must be laughed out of court, and called studied and childish. Then a belief must be inculcated that the examination has been conducted with care, and without any partiality; and the answers given in the examination must be weighed by arguments and by conjecture. And these are for the most part the divisions of an accusation.
XXXV. But the first division of a defence is the invalidating of the motives alleged for the action,—either as having no real existence, or as not having been so important, or as not having been likely to influence any one but the person accused; or we may urge that he could have attained the same object more easily; or that he is not a man of such habits, or of such a character; or that he was not so much a slave to sudden impulses, or at all events not to such trifling ones. And the advocate for the defence will disparage the means alleged to be in the power of the accused person, if he shows that either strength, or courage, or power, or resources were wanting to him; or that the time was unfavourable, or the place unsuitable; or that there were many witnesses, not one of whom he would have chosen to trust; or that he was not such a fool as to undertake a deed which he could not conceal; nor so senseless as to despise the penalties of the law and the courts of justice. And he will do away with the effect of the consequences alleged, by explaining that those things are not certain proofs of an act which might have happened even if the act had never been done; and he will dwell on the details, and urge that they belong as much to what he himself alleges was the fact, as to that which is at present the ground of accusation: or if he agrees with the accuser on those points, still he will say that ought to be of avail rather as a defence to himself against danger, than as an engine for injuring his safety; and he will run down the whole body of witnesses and examinations under torture, generally, and also in detail as far as he can, by the use of the topics of reprehension which have been explained already. The openings of these causes which are intended to excite suspicion by their bitterness will be thus laid down by the accuser; and the general danger of all intrigues will be denounced; and men's minds will be excited so as to listen attentively. But the person who is being accused will bring forward complaints of charges having been trumped up against him, and suspicions ferreted out from all quarters; and he will speak of the intrigues of the accuser, and also of the common danger of all citizens from such proceedings: and so he will try to move the minds of the judges to pity, and to excite their good-will in some degree. But the narration of the accuser will be a separate count, as it were, which will contain an explanation of every sort of transaction liable to suspicion, with every kind of argument scattered over it, and all the topics for the defence discredited. But the speaker for the defence must pass over or discredit all the arguments employed to raise suspicion, and will limit himself to a narration of the actual facts and events which have taken place. But in the corroboration of our own arguments, and in the invalidation of those of our adversaries, it will be often the object of the accuser to rouse the feelings of the minds of his hearers, and of the advocate for the defence to pacify them. And this will be the course of both of them especially in the peroration. The one must have recourse to a reiteration of his arguments, and to a general accumulation of them together; the other, when he has once clearly explained his own cause, refuting the statements of his adversary, must have recourse to enumeration; and, when he has effaced every unfavourable impression, then at the end he will endeavour to move the pity of his judges.
XXXVI.C.F.I think I know now how conjecture ought to be dealt with. Let me hear you now on the subject of definition.
C.P.With respect to that the rules which are given are common to the accuser and the defender. For whichever of them by his definition and description of a word makes the greatest impression on the feelings and opinions of the judges, and whichever keeps nearest to the general meaning of the word, and to that preconceived opinion which those who are the hearers have adopted in their minds, must inevitably get the better in the discussion. For this kind of topic is not handled by a regular argumentation, but by shaking out, as it were, and unfolding the word; so that, if, for instance, in the case of a criminal acquitted through bribery and then impeached a second time, the accuser were to define prevarication to be the utter corruption of a tribunal by an accused person; and the defender were to urge a counter definition, that it is not every sort of corruption which is prevarication, but only the bribing of a prosecutor by a defendant: then, in the first place, there would be a contest between the different alleged meanings of the word; in which case, though the definition, if given by the speaker for the defence, approaches nearest to general usage and to the sense of common conversation, still the accuser relies on the spirit of the law, for he says that it ought not to be admitted that those men who framed the laws considered a judicial decision as ratified when wholly corrupt, but that if even one judge be corrupted, the decision should be annulled. He relies on equity; he urges that the law ought to have been framed differently, if that was what was meant; but that the truth is, that whatever kinds of corruption could possibly exist were all meant to be included under the one term prevarication. But the speaker for the defence will bring forward on his side the usage of common conversation; and he will seek the meaning of the word from its contrary; from a genuine accuser, to whom a prevarication is the exact opposite; or from consequents, because the tablets are given to the judge by the accuser; and from the name itself, which signifies a man who in contrary causes appears to be placed, as it were, in various positions. But still he himself will be forced to have recourse to topics of equity, to the authority of precedents, and to some dangerous result. And this may be a general rule, that when each has stated his definition, keeping as accurately as he can to the common sense and meaning of the word, he should then confirm his own meaning and definition by similar definitions, and by the examples of those men who have spoken in the same way.
And in this kind of cause that will be a common topic for the accuser,—that it must never be permitted that the man who confesses a fact, should defend himself by a new interpretation of the name of it. But the defender must rely on those general principles of equity which I have mentioned, and he must complain that, while that is on his side, he is weighed down not by facts, but by the perverted use of a word; and while speaking thus he will be able to introduce many topics suited to aid him in discovering arguments. For he will avail himself of resemblances, and contrarieties, and consequences; and although both parties will do this, still the defendant, unless his cause is evidently ridiculous, will do so more frequently. But the things which are in the habit of being said, for the sake of amplification, or in the way of digression, or when men are summing up, are introduced either to excite hatred, or pity, or to work on the feelings of the judges by means of those arguments which have been already given; provided that the importance of the facts, or the envy of men, or the dignity of the parties, will allow of it.
XXXVII.C.F.I understand that. Now I wish to hear you speak of that part which, when the question is what is the character of such and such a transaction, will be suitable both for the accusation and also for the defence.
C.P.In a cause of that kind those who are accused confess that they did the very thing for which they are blamed; but since they allege that they did it lawfully, it is necessary for us to explain the whole principles of law. And that is divided into two principal divisions,—natural law and statute law. And the power of each of these is again distributed into human law and divine law; one of which refers to equity and the other to religion. But the power of equity is two-fold: one part of which is upheld by considerations of what is straightforward, and true, and just, and, as it is said, equitable and virtuous; the other refers chiefly to requiting things done to one suitably,—which in the case of that which is to be requited being a kindness, is called gratitude, but when it is an injury, it is called revenge. And these principles are common both to natural and statute law. But there are also other divisions of law; for there is both the written and the unwritten law,—each of which is maintained by the rights of nations and the customs of our ancestors. Again, written law is divided into public law and private law. Public law is laws, resolutions of the senate, treaties; private law is accounts, covenants, agreements, stipulations.
But those laws which are unwritten, owe their influence either to custom or to some agreement between, and as it were to the common consent of men. And indeed it is in some degree prescribed to us by the laws of nature, that we are to uphold our customs and laws. And since the foundations of equity have been briefly explained in this manner, we ought to meditate carefully, with reference to causes of this kind, on what is to be said in our speeches about nature, and laws, and the customs of our ancestors, and the repelling of injuries, and revenge, and every portion of human rights. If a man has done anything unintentionally, or through necessity, or by accident, which men would not be excused for doing if they did it of their own accord and intentionally, by way of deprecating punishment for the action he should implore pardon and indulgence, founding his petition on many topics of equity. I have now explained as well as I could every kind of controversy, unless there is anything besides which you wish to know.
XXXVIII.C.F.I wish to know that which appears to me to be the only point left,—what is to be done when the discussion turns upon expressions in written documents.
C.P.You are right to ask: for when that is explained I shall have discharged the whole of the task which I have undertaken. The rules then which relate to ambiguity are common to both parties. For each of them will urge that the signification which he himself adopts is the one suited to the wisdom of the framer of the document; each of them will urge that that sense which his adversary says is to be gathered from the ambiguous expression in the writing, is either absurd, or inexpedient, or unjust, or discreditable, or again that it is inconsistent with other written expressions, either of other men, or, if possible, of the same man. And he will urge further that the meaning which he himself contends for is the one which would have been intended by every sensible and respectable man; and that such an one would express himself more plainly if the case were to come over again, and that the meaning which he asserts to be the proper one has nothing in it to which objection can be made, or with which any fault can be found; but that if the contrary meaning is admitted, many vices, many foolish, unjust, and inconsistent consequences must follow. But when it appears that the writer meant one thing and wrote another, then he who relies on the letter of the law must first explain the circumstances of the case, and then recite the law; then he must press his opponent, repeat the law, reiterate it, and ask him whether he denies that that is the expression contained in the writing, or whether he denies the facts of the case. After that he must invoke the judge to maintain the letter of the law. When he has dwelt on this sort of corroborative argument he must amplify his case by praising the law, and attack the audacity of the man who, when he has openly violated it, and confesses that he has done so, still comes forward and defends his conduct. Then he must invalidate the defence when his opponent says that the writer meant one thing and wrote another, and say that it is intolerable that the meaning of the framer of the law should be explained by any one else in preference to the law itself. Why did he write down such words if he did not mean them? Why does the opponent, while he neglects what is plainly written, bring forward what is not written anywhere? Why should he think that men who were most careful in what they wrote are to be convicted of extreme folly? What could have hindered the framer of this law from making this exception which the opponent contends that he intended to make, if he really had intended it? He will then bring forward those instances where the same writer has made a similar exception, or if he cannot do that, at least he will cite cases where others have made similar exceptions. For a reason must be sought for, if it is possible to find one, why this exception was not made in this case. The law must be stated to be likely to be unjust, or useless, or else that there is a reason for obeying part of it, and for abrogating part; it must be that the argument of the opponent and the law are at variance. And then, by way of amplification, it will be proper, both in other parts of the speech, and above all in the peroration, to speak with great dignity and energy about the desirableness of maintaining the laws, and of the danger with which all public and private affairs are threatened.
XXXIX. But he who defends himself by appeals to the spirit and intention of the law, will urge that the force of the law depends on the mind and design of the framer, not on words and letters. And he will praise him for having mentioned no exceptions in his law, so as to leave no refuge for offences, and so as to bind the judge to interpret the intention of the law according to the actions of each individual. Then he must cite instances in which all equity will be disturbed if the words of the law are attended to and not the meaning. Then all cunning and false accusation must be endeavoured to be put before the judge in an odious light, and complaints uttered in a tone of indignation. If the action in question has been done unintentionally, or by accident, or by compulsion, rather than in consequence of any premeditation,—and actions of those kinds we have already discussed,—then it will be well to use the same topics of equity to counteract the effect of the harshness of the language.
But if the written laws contradict one another, then the connexion of art is such, and most of its principles are so connected and linked together, that the rules which we a little while ago laid down for cases of ambiguity, and which have just been given with reference to the letter and spirit of the law, may be all transferred to this third division also. For the topics by which, in the case of an ambiguous expression, we defended that meaning which is favourable to our argument must also be used to defend the law which is favourable to us when there are inconsistent laws. In the next place, we must contrive to defend the spirit of one law, and the letter of the other. And so the rules which were just now given relating to the spirit and letter of the law may all be transferred to this subject.
XL. I have now explained to you all the divisions of oratory which have prevailed, as laid down by the academy to which we are devoted, and if it had not been for that academy they could not have been discovered, or understood, or discussed. For the mere act of division, and of definition, and the distribution of the partitions of a doubtful question, and the understanding the topics of arguments, and the arranging the argumentation itself properly, and the discerning what ought to be assumed in arguing, and what follows from what has been assumed, and the distinguishing what is true from what is false, and what is probable from what is incredible, and refuting assumptions which are not legitimate, or which are inappropriate, and discussing all these different points either concisely as those do who are called dialecticians, or copiously as an orator should do, are all fruits of the practice in disputing with acuteness and speaking with fluency, which is instilled into the disciples of that academy. And without a knowledge of these most important arts how can an orator have either energy or variety in his discourse, so as to speak properly of things good or bad, just or unjust, useful or useless, honourable or base?
Let these rules then, my Cicero, which I have now explained to you, be to you a sort of guide to those fountains of eloquence, and if under my instruction or that of others you arrive at them, you will then acquire a clearer understanding of these things and of others which are much more important.
C.F.I will strive to arrive at them with great eagerness, my father; and I do not think that there is any greater advantage which I can derive even from your many excellent kindnesses to me.