Partitiones Oratoriae

Translated by Thothica

1 hr 22 min

SIGLA

P = Codex Parisinus 7231, tenth century p = Codex Parisinus 7696, tenth century codd. dett. = the inferior codices, transcribed in the fifteenth century

CICERO. I should like, father, to hear from you in Latin the things you have taught me in Greek about the theory of speaking — provided you have the leisure and are willing. FATHER. Is there anything, my dear Cicero, that I should prefer to your being as learned as possible? And as for leisure, in the first place I have it in abundance, since at last I have been given the chance to get away from Rome; and in the second place I would gladly set those studies of yours before even my most pressing concerns.
C. Then would you be willing, just as you regularly question me in Greek in due order, for me in turn to question you in Latin on the same subjects? P. By all means, if you wish. For in this way I shall see that you remember what you have learned, and you will hear in order the things you ask about.
C. Into how many parts is the whole science of speaking to be divided? P. Three. C. Tell me which. P. First, the faculty of the orator himself; next, the speech; then, the question. C. In what does the faculty itself consist? P. In matter and in words. But both the matter and the words have to be found and arranged. Properly speaking, in the case of matter we speak of "invention," in the case of words of "expression." Arrangement, though it is common to both, is nonetheless referred to invention. Voice, movement, expression of face, and all delivery are the companions of expression; and the guardian of all these things is memory.
C. And of the speech, how many parts are there? P. Four. Two of them serve to instruct the listener about the matter — the narrative and the proof; two serve to move the mind — the introduction and the peroration. C. And the question — what parts has it? P. The unlimited, which I call a thesis, and the limited, which I name a case.
C. Since, then, invention is the orator's first task, what will he look for? P. He will look for the way to win belief from those he wishes to persuade, and the way to stir emotion in their minds. C. By what means is belief produced? P. By arguments, which are drawn from topics either inherent in the matter itself or brought in from outside. C. What do you call topics? P. Those in which arguments lie hidden. C. What is an argument?
P. A probable thing discovered for the purpose of producing belief. C. How, then, do you divide those two kinds? P. Those that are thought to require no art I call external — for example, testimonies; the inherent are those that cling to the matter itself. C. What kinds of testimony are there? P. Divine and human. Divine, such as oracles and auspices, prophecies, and the responses of priests, soothsayers, and interpreters; human, which is considered on the basis of authority, of intention, of speech whether freely given or extorted — under which fall things written, agreements, promises, sworn statements, and answers obtained under examination.
C. What are the ones you call inherent? P. Those fixed in the matters themselves, such as: definition; the contrary; things that are related to the matter itself, or to its contrary, or are like or unlike, in agreement or in disagreement; things that are as it were conjoined or as it were at variance with one another; the causes of the matters under discussion; the consequences of causes, that is, the effects produced from the causes; distributions, the kinds of the parts or the parts of the kinds; the origins of things and, so to speak, their forerunners, in which some element of argument lies; and comparisons of things — what is greater, what equal, what less — in which either the natures of things or their capacities are compared.
C. Shall we, then, take arguments from all those topics? P. On the contrary, we shall search and inquire through all of them, but we shall apply judgment, so that we always throw out the trivial ones, and sometimes pass over even those that are commonplace and not essential. C. Since you have answered about belief, I should like to hear about emotion. P. You ask about it in its proper place; but what you want will be set out more fully when I come to the theory of the speech itself and of questions.
C. What follows, then? P. When you have found your material, to arrange it; and in the unlimited question the order is roughly the same as the one I have set out for the topics, while in the limited question one must apply in addition those means that pertain to the movements of the mind. C. How, then, do you work this out? P. I have general rules for producing belief and for stirring emotion. Since belief is a firm conviction, and emotion is an agitation of the mind directed toward pleasure, distress, desire, or fear — for these are the kinds, and the parts of each single kind are several — I adapt the whole arrangement to the end of the question. For in the thesis the end is belief, in the case it is belief and emotion. So when I have spoken about the case, in which the thesis is contained, I shall have spoken about both. C. What, then, have you to say about the case?
P. That it is distinguished by the kind of audience. For the one who listens is either a mere hearer or a judge, that is, one who decides the matter and the verdict; so it is either that the listener may be pleased, or that he may decide something. And he decides either about the past, like a juror, or about the future, like a senator. Thus there are these three kinds: the judicial, the deliberative, and the display kind — which, because it is brought chiefly into eulogies, already has its own name from that use.
C. What aims does the orator set himself in these three kinds? P. In display, to give pleasure; in a trial, either the severity or the clemency of the juror; in persuasion, either the hope or the alarm of the one deliberating. C. Why, then, do you set out the kinds of cases at this point? P. So that I may adapt the theory of arrangement to the end of each.
C. In what way, exactly? P. Because in those speeches whose end is to give pleasure, the orders of arrangement are various. For either the stages of time are observed, or the distributions by kinds; or we ascend from the lesser to the greater, or descend from the greater to the lesser; or we vary all this with an uneven variety, when we weave small things in with great, simple with combined, obscure with clear, glad with sad, incredible with probable — all of which belong to display.
C. And in deliberation, what do you look to? P. Introductions that are either not long or often none at all. For those who deliberate are ready to listen for their own sake. Nor, indeed, is there often much need to narrate; for narrative is of past or present things, whereas persuasion is of things to come. Therefore the whole speech is to be directed to belief and to emotion.
C. And in trials, what is the arrangement? P. It is not the same for the prosecutor and for the defendant, because the prosecutor follows the order of events and arranges the individual arguments like spears in his hand, sets them out forcefully, draws his conclusion sharply, supports his case with documents, decrees, and testimonies, dwells rather carefully on the separate points, makes use of those rules of speaking that have force to rouse the mind, and in the rest of his speech, departing a little from his course, allows himself some digression, and is more forceful in the peroration. For his aim is to make the juror angry.
C. What must be done on the contrary side, for the defendant? P. Everything far otherwise. The introductions must be designed to win goodwill; the narratives either cut short, where they are damaging, or left out altogether, if they are wholly troublesome; the supports set up for belief must be either dissolved on their own terms, or obscured, or buried under digressions; and the perorations directed toward pity. C. Can we, then, always keep the order of arrangement that we wish? P. By no means; for the ears of the listener regulate the prudent and far-sighted orator: whatever they reject must be altered.
C. Set out next what the rules of the speech itself and of the words are. P. There is one kind of expression that flows of its own accord; another that is turned about and altered. The first power is in single words, the second in their combination. Single words are to be found; their combination is to be arranged. And single words are partly native, partly invented. Native are those that are signified by the senses; invented are those that are made from the native ones and coined anew, by likeness, or imitation, or inflection, or the joining together of words.
And there is also this distinction in words: one by nature, the other by treatment. By nature, in that some are more sonorous, more grand, lighter, and in a certain way more polished, and others the opposite; by treatment, when either the proper terms of things are used, or words added to a name, or new words, or old ones, or words modified and in a way inflected by the orator — such as those that are transferred or substituted, or those of which we as it were make extravagant use, or those by which we cast a veil, or those that we raise to incredible heights, or those with which we adorn the matter more strikingly than the usage of ordinary speech allows.
C. I have the matter of single words; now I ask about combination. P. Certain rhythms must be observed in combination, and a proper sequence of words. The rhythms the ears themselves measure, so that you neither fall short, in words, of what you have set out to say, nor run over. As for the sequence, the speech must not be thrown into confusion by genders, numbers, tenses, persons, or cases. For just as in single words what is not Latin, so in combined words what does not follow in sequence is to be censured.
The qualities common to single and combined words are these five, as it were the lights of speech: clarity, brevity, plausibility, vividness, charm. Clarity will be achieved by ordinary, proper, well-arranged words, by a period rounded off, or by pauses, or by the cutting short of words; obscurity, on the other hand, comes either from length or from compression of the speech, or from ambiguity, or from the inflection and substitution of words. Brevity is brought about by single words, by saying each thing only once, and by serving no end except that of speaking clearly. Speech is of the plausible kind if it is not too neat and polished, if there is authority and weight in the words, and if the thoughts are either weighty or suited to the opinions and characters of men.
Speech is vivid if the words are chosen and set down with weight, and are transferred, and heightened, and added to a name, and doubled, and signifying the same thing, and not at variance with the very action and representation of the matter. For this is the part of speech that sets the matter, as it were, almost before the eyes; for it is this sense that is most engaged, though the others too, and most of all the mind itself, can be moved. But all the things that have been said about clear speech apply also to this vivid kind. For the vivid is somewhat more than the merely clear. By the one we are brought to understand, by the other we seem to see.
Speech will be of the charming kind, first, by elegance and by the pleasantness of words that are sonorous and smooth; next, by a combination that has neither harsh collisions nor disjointed and gaping intervals, and is rounded off not by a long winding course but by one suited to the breath of the voice, and that has a likeness and balance of words — when, drawing from opposite words, words answer equal to equal, and when words referred back to the same word are set down doubled and twinned, or even repeated more often still; and when the structure of words is now bound together by conjunctions, now relaxed, as it were, by the loosening of them.
Speech will also become charming when you say something unusual, unheard-of, or new. Whatever is marvelous gives pleasure too; and most of all that speech moves us which stirs some emotion in the mind, and which conveys the lovable character of the orator himself. This character is expressed either by marking out his own judgment and a humane and generous disposition, or by an inflection of the discourse, when — for the sake either of magnifying another or of belittling himself — the orator seems to say one thing and to mean another, and this seems done out of courtesy rather than out of vanity. But there are many rules of charm that make a speech either more obscure or less plausible. And so here too we must judge for ourselves what the case demands.
C. It remains, then, for you to speak about turned and altered speech. P. That whole kind lies in the alteration of words, which, in the case of single words, is so handled that the speech is either expanded out of a word or contracted into a word: out of a word, when either a proper word, or one signifying the same thing, or a coined word, is drawn out into several words; out of a phrase, when either a definition is recalled into a single word, or the words taken up are removed, or the circumlocutions are set straight, or by combination one word is made out of two.
In combined words a threefold alteration can be applied — not of the words but only of their order: so that, when a thing has once been said straightforwardly, just as nature herself brought it forth, the order is inverted and the same thing is said as it were back to front and in reverse, and then the same thing in a broken and intermixed fashion. And the practice of expression turns chiefly upon this whole class of variation.
C. Delivery follows next, I suppose. P. It does; and indeed it is what the orator must vary above all to match the weight both of the matter and of the words. For it makes a speech clear and vivid and plausible and charming not by words but by variety of voice, by bodily movement, by the expression of the face — which will have the greatest force if they agree with the character of the speech and follow its force and variety.
C. Does anything else remain for you concerning the orator himself? P. Nothing at all except memory, which is in a way the twin of writing and, in an unlike kind, very like it. For as writing consists of the marks of letters and of that on which the marks themselves are impressed, so the operation of memory uses places as it were for wax, and arranges images in them as it were for letters.
C. Since, then, the whole faculty of the orator has been set out, what have you to say about the rules of the speech? P. That it has four parts, of which the first and the last serve to move the mind — for it is by the openings and perorations that the mind is to be roused — while the second, the narrative, and the third, the proof, give the speech its credibility. But amplification, although it has its own place — often, indeed, the first, and almost always the last — must nonetheless be employed throughout the rest of the course of the speech, and most of all when something has been either confirmed or refuted. And so it has great force toward credibility as well; for amplification is a kind of forceful argumentation: as that other kind is for the sake of instructing, so this is for the sake of moving.
C. Go on, then, and set out for me those four parts in order. P. I shall, and I shall begin first with the introductions, which are drawn either from persons or from the matters themselves. They are employed for the sake of three things: that we may be heard with goodwill, with understanding, and with attention. The first place for these lies in the persons — our own, those of the judges, those of our adversaries; from whom the means of winning goodwill are provided either by our own merits, or by our standing, or by some kind of virtue, especially generosity, sense of duty, justice, and good faith; and by attributing the contrary qualities to the adversaries, and by pointing to some connection or ground or hope of agreement with those who judge; and, if any hatred or offense has been stirred up against us, this must be removed or lessened, by explaining it away, or extenuating it, or balancing it, or pleading for indulgence.
That we may be heard with understanding, and likewise with attention, the beginning must be made from the matters themselves. But the listener learns most easily and grasps what is at issue if you embrace at the outset the kind and nature of the case, if you define, if you divide, and if you neither hinder his comprehension by a confusion of parts nor his memory by their multitude; and the things that will presently be said about clear narrative can rightly be transferred here as well.
That we may be heard with attention, we shall achieve by one of three things: for we shall set out something either great, or necessary, or connected with the very persons before whom the matter is being tried. Let this too be among the rules: that if ever the moment itself, or the matter, or the place, or someone's intervention, or an interruption, or some remark of the adversary's — and especially in the peroration — gives us an opening to say something fittingly to the occasion, we should not let it slip; and many of the things we shall say in their proper place about amplification can be transferred to the rules for introductions.
C. And in the narrative, what is to be observed? P. Since narrative is the unfolding of events and, as it were, the seat and foundation for establishing credibility, those things are to be observed in it above all which are observed in nearly all the other parts of speaking too; some of these are necessary, others taken up for the sake of adornment. For it is necessary that we narrate clearly and plausibly, but we add charm as well.
So, for narrating clearly, we shall call back those same earlier rules of explaining and making vivid, among which is that brevity which is most often praised in narrative, and of which I have spoken above. The narrative will be plausible if the things narrated agree with the persons, the times, and the places; if a cause is given for each act and event; if they seem to be supported by testimony; if they are joined with the opinion, the authority, the law, the custom, and the religion of men; if the integrity of the narrator is conveyed, his good standing, his reliability, the truthfulness of his speech, and the trustworthiness of his life. A narrative is charming that contains moments of wonder, of suspense, unexpected outcomes, interposed movements of the mind, dialogues of persons, griefs, angers, fears, joys, desires. But let us now pass on to the rest.
C. Surely the things that pertain to producing credibility come next. P. So it is; and these are divided into confirmation and refutation. For in confirming we wish to prove our own case, in refuting to overturn the contrary. Since, then, of everything that comes into dispute it is asked either whether it is or is not, or what it is, or of what kind it is, in the first conjecture has force, in the second definition, in the third reasoning. C. I grasp that distribution. Now I ask about the topics of conjecture.
P. It rests entirely upon things that are probable and upon the proper marks of things. But let us, for the sake of instruction, call probable that which generally happens so — as that youth is more prone to lust — and let us call a proper mark an argument that is never otherwise and declares a thing with certainty — as smoke declares fire. Probabilities will be found from the parts and, as it were, the limbs of the narrative. They are found in persons, in places, in times, in deeds, in outcomes, in the very natures of the matters and affairs.
In persons, the things first considered are those of nature — health, figure, strength, age, the distinctions of male and female; and these indeed are in the body. As for the mind, it is considered either how it is disposed — by virtues, vices, skills, ineptitudes — or how it is stirred — by desire, fear, pleasure, distress. And these things are considered in nature; under fortune are family, friendships, children, kindred, connections, wealth, honors, powers, riches, freedom, and the things contrary to these.
In places there are both those natural features — whether they are by the sea or far from it, level or mountainous, smooth or rough, healthful or pestilent, shaded or sunny — and those accidental ones: cultivated or uncultivated, frequented or deserted, built up or waste, obscure or made famous by the traces of great deeds, consecrated or profane.
In times the present, past, and future are distinguished; and within these the long past, the recent, the present, the soon-to-come, and the at-some-time-to-come. There are also in times those features that mark, as it were, the nature of the time, such as winter, summer, or the seasons of the year, such as a month, a day, a night, an hour, a spell of weather — which are natural; and the accidental: sacrifices, festival days, weddings.
Now deeds and outcomes are matters either of deliberation or of want of foresight, which lies either in chance or in some disturbance of the mind: in chance, when something has fallen out otherwise than was expected; in disturbance, when forgetfulness, or error, or some cause of fear or desire has carried one away. Necessity too must be reckoned under want of foresight. Of good and evil things there are three kinds; for they can be either in the mind, or in the body, or outside. With this material, then, supplied for argument, all the parts will have to be surveyed in the mind, and from each a conjecture must be drawn toward the matter at issue.
There is also another kind of argument that is drawn from the traces of the deed — such as a weapon, blood, an outcry, faltering, a change of color, inconsistent speech, trembling, or anything else that can be perceived by the senses; also if something was prepared beforehand, if it was shared with someone, if afterward something was seen, heard, or disclosed.
Now probabilities partly move us singly by their own weight, and partly, even if they seem slight in themselves, nonetheless accomplish much when they are heaped together. And among these probabilities there are sometimes also certain and proper marks of things. But what produces the greatest credibility toward likeness to truth is, first, an example, then a likeness drawn from a similar matter; sometimes too a story, even if it is incredible, nonetheless moves men.
C. And of definition, what is the method and the way? P. There is no doubt that a definition is declared by the genus and by a certain property, or even by the frequent listing of common features, from which it becomes clear what is proper. But since great disagreement generally arises over the properties, one must often define from contraries, often too from unlike things, often from things equal. For this reason descriptions are often suited to this kind, and an enumeration of consequences; and above all the explanation of a term and a name has great force.
C. The things that are asked about a deed, and about the naming of a deed, have now nearly all been set out. Surely, then, those things remain which, when both the deed is settled and the name is settled, are called in doubt as to of what kind they are? P. It is just as you say. C. What, then, are the parts in that kind? P. Either that the deed was done rightfully, or for the sake of repelling injury, or avenging pain, or out of natural affection, or out of regard for chastity, or out of religion, or in the name of the fatherland, or finally out of necessity, ignorance, or accident.
For the things that are done from a movement and disturbance of the mind, without reason, have no defenses against a charge in regular trials, though they can have them in free debates. In this kind, in which it is asked of what sort a thing is, the dispute usually turns on whether or not it was done rightfully; and the argument over this must be drawn from the description of the topics.
C. Come now: since you had divided the credibility of a speech into confirmation and refutation, and the one has been dealt with, set out now about refuting. P. Either the whole of what the adversary has assumed in his argument must be denied, if you can show it to be fabricated or false; or the things that have been taken as probable must be refuted: first, that doubtful things have been taken as certain; then, that the same may be said even of things plainly false; finally, that from what he has assumed his conclusion does not follow. And it ought to come about that, as the individual points are broken, so the whole is broken. Examples too must be brought to mind in which belief was withheld in a similar dispute; and the danger of a common peril must be lamented, if the life of the innocent is laid open to the wits of accusing men.
C. Since I have how the things pertaining to credibility are found, I am waiting to learn how each is handled in the actual speaking. P. You seem to be asking about argumentation, which is the unfolding of an argument. C. That is precisely what I am asking.
P. It is, then, as was said above, the unfolding of an argument that constitutes argumentation; but it is accomplished when you have assumed things either undoubted or probable, from which you may produce that which seems in itself either doubtful or less probable. There are two kinds of arguing, one of which looks straight to credibility, the other turns aside to emotion. The straight kind, then, is when one has proposed something to be proved and has assumed the grounds on which he relies, and, these being confirmed, has come back to his proposition and drawn his conclusion. That other argumentation, as it were backwards and in reverse, first assumes what it wishes and confirms it, and then, after the minds have been stirred, throws in at the very end the thing that ought to have been proposed.
There is also that variety in arguing, and a not unpleasant distinction, when we put questions to ourselves, or inquire, or command, or wish — which, along with many others, are ornaments of the thought. And we shall be able to avoid monotony by not always beginning from the proposition; and if we do not confirm everything by argument, but sometimes set down briefly the things that will be plain enough; and we shall not be obliged always to draw the conclusion that follows from them, if that is plain.
C. What of those things that are called "without art," which you said just now were "taken up"? Do they too in any way require art? P. They do require it; and they are not called "without art" because they are such, but because the orator's art does not give birth to them — yet, though brought to him from outside, he handles them nonetheless with art, and especially in the case of witnesses.
For, both about the whole class of witnesses, how unreliable it is, much must often be said, and that arguments are proper to the matter, whereas testimonies are matters of will; and examples must be used, where credit has not been given to witnesses; and, about individual witnesses, whether they are by nature unreliable, or fickle, or under disgrace, or driven by hope, by fear, by anger, by pity, by reward, or led by favor; and they must be compared with the superior authority of those witnesses to whom, nonetheless, credit was not given.
Often, too, examination under torture must be resisted, since many, fleeing pain, have very often lied under torment and preferred to die by confessing what was false than to suffer pain by denying what was true; many, too, have neglected their own life in order to set free those dearer to them than they were to themselves; while others, whether by the constitution of their bodies, or by habituation to pain, or through fear of punishment and death, have endured the force of the torments; and others have lied against those whom they hated. And these things must be supported by examples.
Nor is it obscure that, since there are examples on either side, and likewise topics for forming a conjecture, contrary things must be taken up against contraries. And, besides, another method too comes into play in the matter of witnesses and examinations. For often the things that have been said, if they were said ambiguously, or inconsistently, or incredibly, or even differently by different persons, are subtly refuted.
C. There remains for you the last part of the speech, which lies in the peroration, about which I should very much like to hear. P. The exposition of the peroration is easier. For it is divided into two parts, amplification and enumeration. The proper place for heightening is here, in the peroration, though in the very course of the speech, when something has been confirmed or refuted, opportunities are given for digressing toward amplification.
Amplification, then, is a kind of weightier affirmation that wins credibility in the speaking by the movement of the mind. It is accomplished both by the kind of words and by the matter. The words to be set down are those that have power to make things vivid and are not at variance with usage — weighty, full, sonorous, joined, coined, compounded, not common, heightened, and above all transferred. So much for single words; but in continuous passages they are to be disconnected — said, that is, without conjunction — so that they may seem more.
There is amplification, too, in words referred back, repeated, doubled, and in those that mount by degrees from the lower to the higher; and in general the speech is always, as it were, more natural and less elaborate, yet packed with weighty words, and more suited to amplification. So much for words, to which delivery, agreeing and apt, is fitted for moving the mind. But both in words and in delivery the case must be weighed and the matter handled accordingly. For since these things, when they are weightier than the case bears, seem quite absurd, one must judge carefully what befits each occasion.
The amplification of the matter is taken from all those same topics from which were taken the things mentioned for credibility; and the greatest force lies in massed definitions, the heaping up of consequences, the clash of contraries, of unlike things, and of things at war with one another, and in causes and the things that arise from causes, and most of all in likenesses and examples; in fictitious persons too, and let even mute things speak; and in general those things are to be employed, if the case allows, which are reckoned great — of which there are two kinds.
For some things seem great by nature, others by use: by nature, such as the heavenly bodies, the divine, and those things whose causes are obscure, such as the marvels that exist on earth and in the universe — from which, and from things like them, if you attend, very many resources for amplification are at hand; by use, those that seem to men either to benefit or to harm more powerfully, of which there are three kinds for amplification. For men are moved either by affection, as for the gods, the fatherland, parents; or by love, as for brothers, spouses, children, intimates; or by what is honorable, as for the virtues, and most of all for those that serve the fellowship of men and generosity. From these, exhortations are drawn to hold fast to such things, and hatreds are roused against those by whom they have been violated, and pity is born.
The proper place for heightening lies in things lost, or in the danger of losing them. For nothing is so pitiable as a man become wretched out of happiness. And this whole power to move lies in expressing briefly the fortune from which a man falls, and from whose affection he is torn, what he loses or has lost, and into what evils he is or will be plunged. For a tear soon dries, especially over the misfortunes of others. Nor should anything in amplification be too minutely examined, for all painstaking detail is petty, whereas this place calls for grand things.
Let it now be a matter of judgment what kind of heightening we use in each case. For in those cases that are adorned for the sake of pleasure, those topics are to be handled which can move expectation, wonder, and delight; in exhortations the enumerations of goods and evils, and examples, have the greatest force. In trials the prosecutor generally uses what pertains to anger, the defendant for the most part what pertains to pity; yet sometimes the prosecutor too must move pity, and the defender anger.
Enumeration remains, never necessary for the eulogist, not often for the one who persuades, more often for the prosecutor than for the defendant. There are two occasions for it: if either you distrust the memory of those before whom you plead, by reason of an interval of time or the length of the speech, or if, with the supports of the speech massed together and set out briefly, the case will have greater force.
The defendant should use it more rarely, because contraries must be set down, and the dissolving of them will not show up in brevity, while the stings will prick. But in enumeration it must be avoided that the parade of memory seem childishly affected. He will escape this who does not repeat every least thing, but, touching each point briefly, grasps the very weights of the matters.
C. Since you have spoken both about the orator himself and about the speech, set out for me now that part of the question which you proposed as the last of the three. P. There are two kinds of question, as I said at the beginning, one of which, limited by times and persons, I call a case; the other, unlimited, marked off by no persons or times, I call a thesis. But the thesis is, as it were, a part of the case; for the unlimited is contained in the limited, and yet all things are referred to it.
For this reason let us speak first about the thesis, of which there are two kinds: one of knowledge, whose end is the knowing of a thing, as whether the senses are true; the other of action, which is referred to doing something, as if one were to ask by what duties friendship is to be cultivated. Again, of the former kind there are three sorts: whether a thing is or is not, what it is, and of what kind it is. Whether it is or is not: as whether right exists in nature or in custom. What it is: thus, whether right is that which is useful to the greater part. Of what kind it is: thus, whether to live justly is useful.
Of action there are two kinds: one for pursuing or avoiding something, as by what means you can attain glory or how ill-will may be shunned; the other referred to some advantage and use, as how the commonwealth is to be administered, or how one must live in poverty.
Again, out of the deliberation of knowledge, where it is asked whether a thing is or is not, or has been or will be, one kind of question is whether something can be brought about — as when it is asked whether anyone can be perfectly wise; the other, in what way each thing comes about — as in what manner virtue is produced, by nature, or by reason, or by practice. To this kind belong all those questions in which, as in obscure and natural inquiries, the causes and reasons of things are unfolded.
Of that other kind, in which it is asked what the thing under discussion is, there are two: in the one it must be argued whether a thing is other or the same, as obstinacy and perseverance; in the other a description of some kind and, as it were, an image must be expressed, as what sort the miser is, or who the proud man is.
In the third kind, in which it is asked of what sort a thing is, one must speak either of what is honorable, or of what is useful, or of what is fair. Of the honorable, thus: whether it is honorable to undergo danger or ill-will for a friend. Of the useful, thus: whether it is useful to engage in the administration of the commonwealth. Of the fair, thus: whether it is fair to set friends before kinsmen. And within this same kind, in which it is asked of what sort a thing is, there arises another kind of argument. For it is not asked simply what is honorable, what useful, what fair, but also, by comparison, what is more honorable, more useful, more fair, and indeed what is most honorable, most useful, most fair — to which kind belongs the question what manner of life carries the highest dignity. And these things that I have mentioned all belong to knowledge.
There remain the questions of action: of which one is the kind that lays down rules, which pertains to the theory of duty, as in what way parents are to be honored; the other pertains to soothing minds and healing them by speech, as in consoling griefs, in checking anger, in calming fear, or in lessening desire. Contrary to this kind is the kind of argument directed to those same movements of the mind which, in amplifying a speech, must often be either produced or roused.
And this is roughly the division of theses. C. I have understood; but I ask what the method is, in these, of finding and arranging the material. P. Why, do you suppose there is any other than the very one already set out — that all things are drawn from the same topics for credibility and for invention? And the method of arrangement set out for the others will be transferred here. C. Since, then, the whole division of theses and cases is known, the kinds and rules remain for us.
P. Quite so. And of these the form is twofold: one pursues the delight of the ears; the other, that it may secure justice, proves, and accomplishes what it undertakes — whence the whole contest is taken up. And so that former kind is called display; and since it can be a wide and quite varied kind, we select out of it the one we take up for praising famous men and for blaming the wicked. For there is no kind of speech that can be either richer in material for speaking, or more useful to states, or in which the orator is more occupied with the recognition of virtues and vices. The remaining kind of cases is concerned either with foresight about future time or with debate about the past; one of which belongs to deliberation, the other to trials.
Out of this division three kinds of cases have arisen: one, named from the better part, eulogy; the second, deliberation; the third, that of trials. For this reason let us, if you please, discuss the first first. C. I am quite willing. P. And I shall set out briefly the methods of praising and blaming, which serve not only for speaking well but also for living honorably; and I shall begin from the starting points of both praise and blame.
For all things that are joined with virtue are assuredly to be praised, and those joined with vices to be blamed. For this reason the end of the one is honor, of the other disgrace. This kind of speaking is accomplished by narrating and setting out deeds, which, without any arguments, is suited rather to handling the movements of the mind gently than to producing or confirming belief. For things doubtful are not confirmed, but things that are certain, or are set down as certain, are heightened. For this reason the rules of narrating and of amplifying will be drawn from what has been said before.
And since in these cases almost the whole method is referred to the pleasure and delight of the listener, one must employ in them an ornamented style and the distinctive marks of individual words, which have the most charm — this comes about if we frequently use words coined, or old, or transferred — and the very structure of words, so that equal often answers to equal and like to like, and contraries, and twinned phrases, and clauses rounded off rhythmically — not after the likeness of verses, but after a certain measure of words, suited, as it were, to filling the sense of the ears.
And one should employ more frequently those ornaments of the matter as well, whether marvelous, or unexpected, or signified by portents, prodigies, and oracles, or things that will seem to have befallen the man we are treating by some divine and fated power. For all the expectation, and wonder, and unforeseen outcome on the listener's part hold a certain pleasure in the hearing.
But since good and evil things lie in three kinds, let the first be the external things, which are drawn from family; this, when it has been briefly and modestly praised — or, if it is infamous, passed over, or, if it is humble, either passed over or touched on so as to heighten the glory of the man you praise — then, if the matter allows, one must speak about his fortunes and resources. Afterward, about the goods of the body; among which, since it most of all signifies, as it were, virtue, beauty is most easily praised.
Then one must come to deeds, whose arrangement is threefold: for either the order of times is to be kept, or each most recent thing is to be told first, or many and various deeds are to be sorted into the proper kinds of the virtues. But this topic of the virtues and vices, opening up most widely out of many and varied discussions, will now be confined to a certain narrow and brief compass.
The force of virtue, then, is twofold: for virtue is discerned either in knowledge or in action. For what is called prudence, what cleverness, and what by its weightiest name is called wisdom, this is strong in knowledge alone. But that which is praised for moderating desires and ruling the movements of the mind has its function in action; and its name is temperance. And that prudence, in private matters, is usually called domestic; in public matters, civil.
Temperance, likewise, is distributed into private matters and common ones, and is discerned in two ways in things that are advantageous: both by not seeking after the things that are absent, and by abstaining from those that are in one's power. In things disadvantageous it is likewise twofold: for that which stands against approaching evils is called fortitude, while that which bears and endures what is already present is named patience. But that which embraces these under a single kind is called greatness of mind; to which belong generosity in the use of money, and at once loftiness of mind in meeting misfortunes, and especially injuries, and everything that is of that kind.
The part that is placed in fellowship is called justice; and, toward the gods, it is religion; toward parents, dutiful affection; in matters entrusted, good faith; in moderating the impulse to chastise, mildness; in goodwill, it is named friendship. And these virtues are discerned in action. But there are others that are, as it were, the handmaids and companions of wisdom; one of which distinguishes and judges what is true and false in argument, and what follows from given premises — a virtue placed wholly in the method and science of arguing; the other is the oratorical virtue.
For eloquence is nothing else than wisdom speaking copiously; which, drawn from the same source as that virtue exercised in argument, is fuller and broader and better suited to the movements of the mind and the feelings of the common people. And the guardian of all the virtues — fleeing disgrace and pursuing praise above all — is a sense of shame. And these are roughly certain habits of the mind, so disposed and so constituted that each is distinguished from the rest by its own proper kind of virtue; and according as each thing is done in accordance with these, so it must be honorable and supremely worthy of praise.
There are, besides, certain other habits of the mind, as it were tilled and prepared toward virtue by right studies and arts: in private matters, the study of letters, of numbers and sounds, of measurement, of the stars, of horsemanship, of hunting, of arms; in common matters, inclinations rather strongly given to cultivating some particular kind of virtue, or to devoting oneself to divine things, or to cherishing parents, friends, and guests with special and signal care. And these things belong to the virtues. But of the vices the kinds are contrary.
And they must be discerned carefully, lest those vices deceive us which seem to imitate virtue. For malice imitates prudence; brutality, temperance, in spurning pleasures; pride imitates greatness of mind, in raising oneself too high, and disdain, in despising honors; prodigality imitates generosity; rashness, fortitude; brutal hardness, patience; bitterness, justice; superstition, religion; softness of mind, mildness; timidity, the sense of shame; and that wrangling and quibbling over words imitates that prudence in argument, while a certain empty fluency of speaking imitates this oratorical power. And things that are excessive within the same class seem like good pursuits.
For this reason the whole power of praising and blaming will be drawn from these parts of the virtues and vices; but in the whole, as it were, fabric of the speech these things are to be made vivid above all: how each man was born, how he was reared, how he was trained and formed in character; and if anything great or incredible has befallen anyone, and especially if it could seem to have happened by divine power; then what each has felt, said, and done will be referred to the proposed kinds of the virtues, and from those topics of invention the causes of things, their outcomes, and their consequences will be sought. Nor, indeed, should the death of those whose life is to be praised be passed over in silence, if only there is anything to be noted either in the very manner of death or in the things that followed after death.
C. I have received and learned briefly not only how I might praise another, but also how I might strive to be able rightly to be praised myself. Let us see next, in delivering an opinion, what path and what rules we are to hold. P. In deliberation, then, the end is advantage, to which all things in giving counsel and stating an opinion are so referred that the one who advises for or against must first see what can or cannot be done, and what is or is not necessary. For if something cannot be brought about, deliberation is removed, however useful it may be; and if something is necessary — and that is necessary without which we cannot be safe or free — it is to be set, in civil reasoning, before the remaining honorable things and advantages.
But when it is asked what can be done, one must also see how easily it can be done. For things that are very difficult are often to be regarded just as if they could not be brought about. And when we attend to necessity, even if something will not seem necessary, it must nonetheless be considered how great it is. For what is of very great importance is often held to be as good as necessary.
And so, since this kind of case consists of persuading and dissuading, the one who advises is offered a simple line: if it is both useful and can be done, let it be done; the one who dissuades a twofold one: the first, if it is not useful, let it not be done; the second, if it cannot be done, let it not be undertaken. Thus the persuader must teach both points, while for the dissuader it is enough to undermine one. Therefore, since the whole of counsel turns on these two things, let us first speak about advantage, which lies in distinguishing goods from evils. Of goods, some are necessary, such as life, chastity, freedom, children, spouses, brothers, parents; others are not necessary.
(combined with 85 in the source numbering)
And of these some are sought for the sake of their honor itself, others for some advantage: for honor, those that proceed from those virtues of which a little while ago I spoke, which are praiseworthy in themselves; for some advantage, those that are to be sought among the goods of the body or of fortune. Of these some are, as it were, joined with a certain honor, such as office and glory; others are separate, such as strength, beauty, health, such as noble birth, riches, a body of dependents.
There is also a kind of material, as it were, subjected to honor, which is seen most of all in friendships. And friendships are discerned by affection and by love. For both the reverence paid to the gods, and that to parents and to the fatherland, and to those men who excel either in wisdom or in resources, are usually referred to affection; whereas spouses and children and brothers and others whom familiarity and intimacy have joined to us, although they too are held by affection itself, are nonetheless held most of all by love. In these matters, then, since they are goods, it is easy to understand what their contraries are.
And if we could always hold to the best things, we should hardly need much counsel, since indeed they are evident. But because, owing to circumstances, which have the greatest force, it very often comes about that advantage contends with honor, and the conflict of these things generally produces deliberations, lest either the opportune be abandoned for the sake of dignity or the honorable for the sake of advantage — to unraveling this difficulty let us refer our rules.
And since speech must be adapted not only to the truth but also to the opinions of those who listen, let us first understand this: that there are two kinds of men, one untaught and boorish, which always sets advantage before honor, the other refined and polished, which sets dignity before all things. And so to this latter kind praise, honor, glory, good faith, justice, and every virtue are held out, while to those others gain, profit, and produce are held out. And even pleasure, which is most hostile to virtue and falsely corrupts it by imitating the nature of the good, which every most brutal man pursues most keenly and sets not only before honorable things but even before necessary ones — pleasure, in persuasion, when you give counsel to that kind of men, is often indeed to be praised.
And this must be seen, how much more men flee evils than pursue goods. For they do not so much seek honorable things as shun base ones. For who has ever so sought after honor, glory, praise, or any distinction as he flees ignominy, infamy, insult, and disgrace? The fact that the grief at these things is heavy is weighty witness that the human race, born for honor, has been corrupted by bad upbringing and depraved opinions. For this reason, in exhorting and persuading, our aim will indeed be this: to teach how we may attain goods and avoid evils;
but before well-trained men we shall speak chiefly of praise and of honor, and shall handle most of all those kinds of virtue that are concerned with guarding and increasing the common advantage of men. But if we speak before the untaught and unskilled, let profits, gains, pleasures, and the avoidings of pain be brought forward; let insults too and ignominies be added. For there is no one so boorish that, even if honor itself moves him less, insult and disgrace do not move him greatly. For this reason what looks to advantage will be found from the things that have been said;
but what can be brought about — in which it is also usually asked how easily it can be done and how expedient it is — must be considered chiefly from the causes that bring each thing about. And of causes there are several kinds. For some are those that themselves accomplish the result, others that contribute some force toward accomplishing it. And so let the former be called efficient; let the rest be placed in the kind such that without them the thing cannot be accomplished.
An efficient cause, again, is one of two sorts: one absolute and complete in itself, the other helping toward something and, as it were, a partner in producing the effect; the force of this latter kind is various, and often either greater or less. But there are other causes that are called efficient on account either of a beginning or of an outcome. And when it is asked what is best to do, either advantage or the hope of accomplishing impels minds to assent.
And since we have now spoken about advantage, let us speak about the method of accomplishing. In this whole kind it must be inquired with whom and against whom, at what time, or in what place, or with what resources of arms, of money, of allies, or of those things that pertain to accomplishing each end, we may be able to act. And we must see not only the things that are at our disposal, but also those that will be opposed. And if, on comparison, our side has the advantage, it must be persuaded not only that what we urge can be done, but care must also be taken that those things seem easy, ready, and pleasant. Those who dissuade, on the other hand, must either undermine the advantage or set forth the difficulties of accomplishing, and that not from other rules, but from the same topics of persuasion.
Each side, indeed, should have for amplification an abundance of examples, either recent ones, that they may be the more familiar, or old ones, that they may have the more authority; and one should be especially practiced in this kind, so as to be able often to set useful and necessary things before honorable ones, or these before those. For moving minds, those thoughts will be most effective, if minds are to be roused, that pertain to filling desires, or to glutting hatred, or to avenging injuries. But if they are to be restrained, one must warn them about the uncertain state of fortune and the doubtful outcomes of things to come, and about keeping their own fortunes, if these are prosperous, or, if they are adverse, about their peril. And these are the topics of the peroration.
The introductions in delivering opinions ought to be brief. For the orator does not come as a suppliant, as to a judge, but as an exhorter and an actor. For this reason he ought to set out in what spirit he speaks, what he wishes, on what matters he is going to speak, and to exhort, speaking briefly, that he be heard. But the whole speech ought to be plain and weighty, and more adorned in its thoughts than in its words.
C. I have now understood the topics of eulogy and of persuasion. Now I am waiting for those that are suited to trials; and I think this one kind remains for us. P. You understand rightly. And the end of this kind is fairness, which is considered not simply but sometimes by comparison — as when there is a dispute about which is the truest accuser, or when possession of an inheritance is sought without a law or without a testament; in which cases it is asked what is more fair and most fair, for which cases the means of argument is sought from those topics of fairness that will presently be spoken of.
And even before the trial there is usually a contest about the constituting of the trial itself, when it is asked whether the one who brings the action has a right of action, or whether it now exists, or whether it has now ceased to exist, or whether the action lies under this law, in these terms. These things, even if they have not been disputed, judged, or settled before the matter comes to trial, nonetheless often have very great weight in the trials themselves, when it is said: You have claimed too much; you have claimed too late; the claim was not yours; not against me, not under this law, not in these words, not in this court.
The kind of these cases is placed in the civil law, which lies in the law or custom concerning private and public matters; and the knowledge of this, neglected by most orators, seems to us necessary for speaking. For this reason, about constituting actions, about taking up or undergoing trials, about excepting against the unfairness of an action, about securing fairness — since these are roughly of the kind that, although they often slip into the trial itself, nonetheless seem to be handled before the trial — I set them a little apart from trials, more by the time of acting than by any difference of kind. For all things that are disputed about civil law, or about the equitable and the good, fall under that form of cases in which it is in doubt of what sort a thing is, of which we are about to speak, which consists chiefly in fairness and in law.
In all cases, then, there are three stages, of which some one must be taken up — if you cannot take more — for the sake of resistance. For one must take a stand either so as to deny that the thing at issue was done, or, if you admit it was done, to deny that it has such force and is the thing the adversary charges; or, if there can be no dispute about the deed or about the naming of the deed, to deny that what you are accused of is of the kind he says, and to defend that what you did was right and is to be conceded.
Thus that first stand, and as it were the clash with the adversary, is to be handled by a certain conjecture; the second, by the definition and shaping of a word; the third, by argument about what is fair, right, and humane, toward winning pardon. And since the one who defends ought always not only to resist by some definite stand — by denying, or by defining, or by setting fairness against the charge — but also to put forward the ground of his refusal, that first stand has, as its ground against an unfair charge, the very denial and disavowal of the deed; the second, that there is not in the thing what is set down by the adversary in his word; the third, that he defends as right what he admits was done, without any dispute about its name.
Then to each ground the accuser must oppose that which, if it were not in the accusation, the case could not exist at all. And so the things thus brought to bear are to be called the "sustaining points" of cases — though indeed the things brought against the grounds of the defense are no more the sustaining points of cases than the grounds of the defense themselves. But for the sake of distinction let us call "the ground" that which is brought by the defendant to refuse and ward off the charge, and without which he would have nothing to defend; and "the support," that which is brought against, to undermine the ground, and without which the accusation could not stand.
From the clash and, as it were, the collision of the ground and the support there arises a certain question, which I call the point at issue; in which it is usually asked what comes into the trial and what is disputed. For the first contest of the adversaries has a diffuse question — as, in conjecture: Did Decius take the money? in definition: Did Norbanus diminish the majesty of the state? in fairness: Did Opimius lawfully kill Gracchus? These, which have their first contest from accusing and resisting, are, as I said, broad and diffuse. The contest of grounds and supports draws the point at issue into a narrow compass. In conjecture there is none of it. For no one can, or ought, or is wont to give a ground for what he denies was done. And so in these cases the first question and the final point at issue are one and the same.
But in those others, where it is said thus: He did not diminish the majesty of the state in acting rather turbulently in the matter of Caepio; for it was the just grief of the people, not the tribune's action; and majesty, since it is a certain greatness of the Roman people in maintaining its power and right, was rather increased than diminished; and where the rejoinder is made thus: Majesty lies in the dignity of the empire and the name of the Roman people, and he diminishes it who, through the force of a mob, drives the matter to sedition — there will arise that point at issue: Did he diminish the majesty of the state who, by the will of the Roman people, carried out by force a thing pleasing and fair?
But in those cases where it is defended that something was rightly done or ought to be conceded, when a ground for the deed has been put forward — as by Opimius: I acted lawfully, for the sake of the safety of all and the preservation of the commonwealth, and the rejoinder has been made by Decius: Not even the most criminal citizen could you lawfully kill without a trial, by any right — there arises that point at issue: Could one rightly, for the sake of the commonwealth's safety, kill an uncondemned citizen who was overturning the state? Thus those points at issue, which arise in these disputes that are marked off by definite persons and times, become again unlimited when the persons and times are removed, and are again recalled to the form and method of theses.
But among the weightiest supports these too must be placed, if any things drawn from the wording of a law, or a testament, or the very words of the court, or some stipulation or guarantee, are set against the defense as contrary. Yet not even this kind comes into those cases that are contained by conjecture. For what is denied to have been done cannot be proved by a document. Nor indeed does the wording itself come into definition by its kind. For even if some word from a document must be defined as to what force it has — as when it is asked, from testaments, what the "provisions" are, or, from the law about an estate, what counts as "fixtures removed" — it is not the kind of the document but the interpretation of the word that makes the dispute.
But when either several things are signified by the document, on account of the ambiguity of a word or of words, so that the one who speaks against may draw the meaning of the document to whatever is to his advantage and his wish; or, if it is not written ambiguously, when he either draws the intention and meaning of the writer away from his words, or defends himself by another document written contrary to the same effect — then the point at issue arises from a contest about the wording: so that in ambiguities it is disputed what is chiefly signified; in the contest of the wording and the intention, which the judge should rather follow; in contrary documents, which is the more to be approved.
When the point at issue has been established, the orator ought to have his proposition, into which all the arguments, drawn from the topics of invention, may be brought together. And although this is enough for one who sees what lies hidden in each topic, and who has those topics marked, as it were, like treasuries of arguments, nonetheless we shall touch on the things proper to particular cases.
In conjecture, then, when the defendant is denying, these first two things are for the accuser — but I call "accuser" anyone who acts and claims, for these same kinds of disputes can be handled in cases even without an accusation — but these two are first for him: cause and outcome. By "cause" I mean the reason for doing; by "outcome," that which has been done. And the very division of causes was distributed a little while ago among the topics of persuasion.
For the things that were laid down, in taking counsel, about future time — namely, why it would seem either to have advantage or the means of accomplishment — these same things the one who argues about a deed must gather, so that he may show why the things were both useful to the one he accuses and could have been accomplished by him. Conjecture is moved by advantage, if the one accused is said to have acted either in hope of goods or in fear of evils — which becomes sharper the greater those things are set down to be in either kind. The movements of the mind too look toward the cause of the deed:
if there is recent anger, old hatred, a desire for revenge, the pain of an injury, a craving for honor, glory, power, money; if there is fear of danger, debt, the straits of a household; if the man is bold, fickle, cruel, ungovernable, incautious, foolish, in love, of a disturbed mind, drunk; if there was hope of accomplishing, or a belief that it could be concealed, or, if exposed, that the charge could be warded off, or the peril broken through, or put off to a distant time; or if the punishment from the court was lighter than the reward of the deed; or if the pleasure of the crime was greater than the pain of condemnation.
For by these things, roughly, suspicion of the deed is confirmed, when both the grounds of the will in the defendant and the means are found. In the will, advantage is sought from the gaining of some benefit and the avoiding of some harm, so that either hope or fear may seem to have impelled him, or some sudden movement of the mind, which drives toward wrongdoing even more quickly than a reasoned reckoning of advantage. For this reason let these things be said about the cause.
C. I grasp this; and I ask what those outcomes are that you said are produced from causes. P. Certain consequent signs of the past deed, and, as it were, the traces it has stamped; which indeed stir suspicion most of all, and are, as it were, the silent testimonies of crimes — and the weightier for this, that whereas the causes seem in common to be able to incriminate and accuse all who had any interest in the matter, these particularly touch those very men who are accused: such as a weapon, a footprint, blood, something caught hold of that seems to have been carried off or snatched away, an inconsistent answer, hesitation, faltering, having been seen with someone from which suspicion arises, having been seen in the very place where the crime was committed, pallor, trembling, something written, sealed, or deposited. For such things are of the kind that produce a suspicious charge either in the act itself, or even before it was done, or afterward.
And if these signs are lacking, one must nonetheless rely on the causes themselves and the means of accomplishing, with that general argument added: that the man was not so out of his mind as to be unable to escape or conceal the indications of the deed, or so open as to leave room for a charge. The contrary general topic: that boldness is joined with rashness, not with prudence.
There follows that topic for amplification: that one must not wait until he confesses; that wrongs are convicted by arguments; and here too examples will be set down.
And so much for arguments. But if there is also the means of witnesses, first this very kind must be praised, and it must be said that, lest the defendant be held by arguments, he himself by his own caution contrived that witnesses could not escape him; then let the individual witnesses be praised — what things are praiseworthy has been said; then that, even a firm argument, because it is nonetheless often false, may rightly not be believed, but a good and steadfast man cannot, without a fault on the judge's part, fail to be believed. And also, if the witnesses are obscure or of slight standing, it must be said that credit is not to be weighed by fortune, or that those are the most reliable witnesses of any matter who can most easily know what is at issue. But if examinations held, or the demand that they be held, will help the case, the kind of examinations must first be confirmed; one must speak of the force of pain, of the opinion of our forefathers, who would surely have rejected the whole practice if they had not approved it;
of the institutions of the Athenians, the Rhodians, most learned men, among whom even — what is most bitter — free men and citizens are put to the torture; of the institutions too of our own most prudent men, who, although they were unwilling that slaves be examined against their masters, nonetheless thought there should be an examination concerning incest, and concerning the conspiracy that was made in my consulship. The argument too which they are accustomed to use to weaken examinations must be ridiculed, and said to be rehearsed and childish. Then credit must be carefully established that the inquiry was made diligently and without partiality, and the things said in the examination must be weighed by arguments and conjecture. And these are roughly the members of an accusation.
The defense, on the other hand, consists first in undermining the causes: that they either did not exist, or were not so great, or not for him alone, or that he could have gained the same thing more conveniently; or that he is not of such character, not of such a life; or that there were no movements of the mind, or none so ungovernable. He will also use the undermining of the means, if he shows that strength, or spirit, or resources, or wealth were lacking; or that the time was wrong, or the place unsuitable, or that there were many onlookers, none of whom he could have trusted; or that he was not so open as to undertake what he could not conceal, nor so out of his mind as to despise penalties and trials.
The consequences he will dissolve by explaining that those are not certain indications of the deed, since they could follow even when nothing has been committed; and he will take his stand on the individual ones, defending them either as proper to the things he himself will say were done, rather than to the crime, or as common to him and the accuser, and as bound to count for his peril rather than against his safety; and the whole class of witnesses and examinations, and what he can in individual instances, he will refute from the topics of refutation that have been spoken of before.
The introductions of these cases will be set down by the accuser so as to suggest suspicion toward bitterness, and the common danger of plots will be proclaimed, and minds will be roused to attention. By the defendant, on the other hand, complaint will be brought forward of a charge concocted and of suspicions gathered together, and of the accuser's plots, and likewise of the common danger; and minds will be drawn to pity, and the goodwill of the judges moderately gathered. The accuser's narrative will be, as it were, a suspicious unfolding of the business carried out member by member, with all the arguments scattered through it and the defenses obscured. For the defender, with the arguments of the suspicions either passed over or obscured, the outcomes and accidents of the matters themselves are to be narrated.
In confirming our own arguments and undermining the contrary ones, the accuser will often have to rouse the movements of the mind, the defendant to soften them. And this above all each must do in the peroration: the one by a massing and a complete heaping up of arguments; the other, if he has plainly explained his case by refuting it, by enumeration — how he has dissolved each point — and by pity at the very end.
C. I think I now know how conjecture is to be handled. Now let us hear about definition. P. In this kind, common rules are given to the accuser and the defender. For whichever of the two, in defining and describing a word, penetrates more into the sense and opinion of the judge, and whichever comes nearer and closer to the common force of the word and the same notion of that word which those who hear will have already half-formed in their minds — he must necessarily win. For this kind is not handled by argument,
but, as it were, by unfolding and shaking out the word: so that, if — when the money has been acquitted in the defendant and the case is recalled — the accuser defines collusion as every corruption of the court by the defendant, while the defender defines it not as every corruption but only the accuser's corruption by the defendant, let this contest be first of all about words; in which, even if the defender's definition comes nearer to the usage and intention of speech, the accuser will nonetheless rely on the intention of the law; for he says that those who wrote the laws ought not to be proved,
that, lest the verdict should be held valid, if the whole was corrupt — if one accuser was corrupt — they would not rescind it; he relies on fairness and utility, as if a law were to be written, and he says that whatever it would then embrace in corrupt trials, they embraced with the one word "collusion";
but the defender appeals to the usage of speech, and recovers the force of the word from the contrary, as if the accuser were turned about, to whom the contrary name is "the collusive one"; and from the consequences, in that this letter is usually given to the judge against the accuser; and from the very name, which signifies one who in opposing causes seems to be placed, as it were, with his legs astride. Yet even this man must take refuge in the topics of fairness, in the authority of decided matters, in some end of peril; and let this be a common rule: that when each has defined as closely as he could to the common sense and force of the word, then by likenesses and by the examples of those who have so spoken let him confirm his definition and his meaning.
And let the accuser, in this kind of case, have that general topic: that it must by no means be conceded that one who confesses the deed should defend himself by the interpretation of a word; but the defender must both rely on that fairness which I have set out, and, when it makes for him, complain that he is being pressed not by the matter but by a distortion of the word. In this kind he will be able to survey most of the topics of invention; for he will use both likenesses and contraries and consequences — though each side does so, the defendant nonetheless, unless his case is plainly absurd, more frequently.
For the sake of amplification, the things they will wish to say either when they digress from the case or when they make their peroration will be taken, toward either hatred, or pity, or moving the minds of the judges in every way, from the things set down before — provided the greatness of the matters, or of the persons, or the ill-will or dignity, calls for it.
C. I have those things; now I should like to hear what it is fitting to inquire on either side when it is disputed of what sort something is. P. In this kind the accused confess that they did the very thing for which they are blamed; but since they say they did it rightfully, the whole theory of right must be set out by us. This is divided into two first parts, nature and law, and the force of each kind is distributed into divine and human right; of these the one belongs to fairness, the other to religion.
And the force of fairness is twofold: one of which is defended by the straight reckoning of the true and the just and, as it is said, the equitable and the good; the other pertains to the returning of a favor in turn — which in a benefit is called gratitude, in an injury, punishment. And these are common to nature and to law; but proper to law are both the things that are written and the things that are kept without writing, either by the law of nations or by the custom of our forefathers. Of written things, again, one kind is private, another public: public, a law, a decree of the senate, a treaty; private, account-books, a pact, an agreement, a stipulation. The things that are not written are maintained either by usage or by the agreements of men and, as it were, common consent. And this above all — that we should guard our own customs and laws — is in a way prescribed by natural right.
And since the sources, as it were, of fairness have been briefly disclosed, we shall have to have prepared, for this kind of case, the things that will have to be said in our speeches about nature, about laws, about the custom of our forefathers, about repelling injury, about avenging it, about every part of right. If anyone has done something through want of foresight, or necessity, or accident, which would not be conceded to those who did it of their own accord and will, indulgence for the pardoning of that deed must be sought by way of deprecation, which will be drawn from very many topics of fairness. I have set out, as briefly as I could, about every kind of dispute — unless you require something further besides.
C. There is indeed that one thing which I see now remains: of what sort it is when the point at issue turns on documents. P. You understand rightly; for when this has been set out, I shall have completed the whole task of my promise. There are, then, common rules for two adversaries in a matter of ambiguity. For each will defend that the meaning on which he himself relies is worthy of the writer's prudence; each will defend that what the adversary says is to be understood from the ambiguous wording is absurd, or useless, or unfair, or base, or even that it is at variance with the other documents, whether of other men or — especially if he can manage it — of the same man; and that the very thing and meaning which he defends, any prudent and just man, if a free hand were given, would have written, but more plainly;
and that the meaning which he says can be signified has in it nothing either captious or faulty; whereas, if they should approve the contrary, many faulty, foolish, unfair, and contradictory things would follow. But when the writer seems to have meant one thing and written another, the one who relies on the document must, after setting out the matter, make use of a reading aloud, then press the adversary, repeat, renew, ask whether he either denies the document or denies that he acted against it.
Afterward let him call the judge to the force of the document. Having used this confirmation, let him amplify the matter by praising the law, and refute the boldness of the man who, although he has openly acted against it and admits it, nonetheless is present and defends the deed. Then let him weaken the defense: that, when the adversary says the writer wished one thing, meant another, wrote another, it is not to be borne that the meaning of the proposer should be unfolded by anyone rather than by the law. Why did he write thus, if he did not mean thus? Why, when he has neglected the things that are plainly written, does he bring forward things written nowhere? Why does he think that most prudent men in writing are to be condemned for the height of folly? What hindered the writer from making an exception of that which the adversary, as if it had been excepted, says he followed?
He will use those examples in which the same writer, or — if he cannot do that — in which others, excepted what they thought ought to be excepted. A reason too must be sought, if any can be found, why an exception was not made: it will be said that the law would be either unfair or useless, or that there is one cause for obeying, another for abrogating; that the adversary's voice is at variance with the law's. Then, for the sake of amplification, about preserving the laws, about the danger to public and private affairs — both in other places and especially in the peroration — one must speak with great weight and force.
But he who will defend himself by the intention and will of the law will defend that the force of the law is placed in the design and mind of the writer, not in the words and letters, and will praise the fact that he made no exception in the law, lest byways be given to wrongdoings, and so that the judge might interpret the mind of the law from each man's deed. Then he must use examples in which all fairness is thrown into confusion if obedience is rendered to the words of the laws and not to their meaning.
Then let that kind of cleverness and false accusation be drawn into the judge's hatred with a certain invidious complaint. And if a case of want of foresight comes up, which pertains not to wrongdoing but to accident or necessity — the kind we touched on a little while ago — pardon must be sought, by the same thoughts of fairness, against the bitterness of the words. But if documents are at variance with one another, the chain of the art is so great, and most things are so connected and fitted to one another, that the rules we gave a little while ago about ambiguity, and those just now about meaning and document, may be transferred, the same, to this third kind of case.
For by those topics by which, in an ambiguity, we defend the meaning that helps us, by those same, in contrary laws, our own law must be defended. Then it must be brought about that we defend the meaning of one document by the words of the other. Thus the things we have just prescribed about document and meaning we shall transfer here, all of them.
All the divisions of oratory have now been set out for you — those that have indeed blossomed out of that Academy of ours, and without which they can neither be found, nor understood, nor handled. For both the dividing itself, and defining, and dividing the parts of an ambiguity, and knowing the topics of arguments, and drawing the argumentation itself to a conclusion, and seeing what is to be assumed in arguing and what follows from the things assumed, and distinguishing true things from false, probable from incredible, and discerning them, and censuring things badly assumed or badly concluded, and treating the same matters now narrowly, like those who are called dialecticians, now broadly, as befits an orator — all this belongs to that exercise of subtle disputation and of the art of speaking copiously.
But concerning things good and evil, fair and unfair, useful and useless, honorable and base, what capacity or abundance can an orator have without those arts of the greatest matters? For this reason, my dear Cicero, let the things I have set out be for you, as it were, indications of those springs; and if you reach them, with these same guides or with others, then you will come to know both these very things better and other and far greater things. C. Indeed I shall, and with great zeal too, my father; and of all your most splendid gifts I look for none greater.