Or if, when an inquiry is being carried on respecting one particular point, the speech is addressed to common topics; as if any one, while men are deliberating whether war shall be waged or not, were to devote himself wholly to the praises of peace, and not to proving that that particular war is inexpedient. Or if a false reason for anything be alleged, in this way:—Money is good because it is the thing which, above all others, makes life happy. Or if one is alleged which is invalid, as Plautus says:—
"Sure to reprove a friend for evident faults
Is but a thankless office; still 'tis useful,
And wholesome for a youth of such an age,
And so this day I will reprove my friend,
Whose fault is palpable."—Plautus, Frinummus, Act i. sc. 2,
l.1.
Or in this manner, if a man were to say, "Avarice is the greatest evil; for the desire of money causes great distress to numbers of people." Or it is unsuitable, in this manner:—"Friendship is the greatest good for there are many pleasures in friendship."
LI. The fourth manner of reprehension was stated to be that by which, in opposition to a solid argumentation, one equally, or still more solid, has been advanced. And this kind of argumentation is especially employed in deliberations when we admit that something which is said in opposition to us is reasonable, but still prove that that conduct which we are defending is necessary; or when we confess that the line of conduct which they are advocating is useful, and prove that what we ourselves are contending for is honourable. And we have thought it necessary to say thus much about reprehension; now we will lay down some rules respecting the conclusion.
Hermagoras places digression next in order, and then the ultimate conclusion. But in this digression he considers it proper to introduce some inferential topics, unconnected with the cause and with the decision itself, which contain some praise of the speaker himself, or some vituperation of the adversary, or else may lead to some other topic from which he may derive some confirmation or reprehension, not by arguing, but by expanding the subject by some amplification or other. If any one thinks that this is a proper part of an oration, he may follow Hermagoras. For precepts for embellishing, and praising, and blaming, have partly been already given by us, and partly will be given hereafter in their proper place. But we do not think it right that this part should be classed among the regular divisions of a speech, because it appears improper that there should be digressions, except to some common topics, concerning which subject we must speak subsequently. But it does not seem desirable to handle praise and vituperation separately, but it seems better that they should be considered as forming part of the argumentation itself. At present we will treat of the conclusion of an oration.
LII. The conclusion is the end and terminating of the whole oration. It has three parts,—enumeration, indignation, and complaint. Enumeration is that by which matters which have been related in a scattered and diffuse manner are collected together, and, for the sake of recollecting them, are brought under our view. If this is always treated in the same manner, it will be completely evident to every one that it is being handled according to some artificial system; but if it be done in many various ways, the orator will be able to escape this suspicion, and will not cause such weariness. Wherefore it will be desirable to act in the way which most people adopt, on account of its easiness; that is, to touch on each topic separately, and in that manner briefly to run over all sorts of argumentation; and also (which is, however, more difficult) to recount what portions of the subject you previously mentioned in the arrangement of the subject, as those which you promised to explain; and also to bring to the recollection of your hearers the reasonings by which you established each separate point, and then to ask of those who are hearing you what it is which they ought to wish to be proved to them; in this way:—"We proved this; we made that plain;" and by this means the hearer will recover his recollection of it, and will think that there is nothing besides which he ought to require.
And in these kinds of conclusions, as has been said before, it will be serviceable both to run over the arguments which you yourself have employed separately, and also (which is a matter requiring still greater art) to unite the opposite arguments with your own; and to show how completely you have done away with the arguments which were brought against you. And so, by a brief comparison, the recollection of the hearer will be refreshed both as to the confirmation which you adduced, and as to the reprehension which you employed. And it will be useful to vary these proceedings by other methods of pleading also. But you may carry on the enumeration in your own person, so as to remind your hearers of what you said, and in what part of your speech you said each thing; and also you may bring on the stage some other character, or some different circumstance, and then make your whole enumeration with reference to that. If it is a person, in this way:—"For if the framer of the law were to appear, and were to inquire of you why you doubted, what could you say after this, and this, and this has been proved to you?" And in this case, as also in our own character, it will be in our power to run over all kinds of argumentation separately: and at one time to refer all separate genera to different classes of the division, and at another to ask of the hearer what he requires, and at another to adopt a similar course by a comparison of one's own arguments and those of the opposite party.
But a different class of circumstance will be introduced if an enumerative oration be connected with any subject of this sort,—law, place, city, or monument, in this manner.—"What if the laws themselves could speak? Would not they also address this complaint to you? What more do you require, O judges when this, and this, and this has been already made plain to you?" And in this kind of argument it is allowable to use all these same methods. But this is given as a common precept to guide one in framing an enumeration, that out of every part of the argument, since the whole cannot be repeated over again, that is to be selected which is of the greatest weight, and that each point is to be run over as briefly as possible, so that it shall appear to be only a refreshing of the recollection of the hearers, not a repetition of the speech.
LIII. Indignation is a kind of speech by which the effect produced is, that great hatred is excited against a man, or great dislike of some proceeding is originated. In an address of this kind we wish to have this understood first, that it is possible to give vent to indignation from all those topics which we have suggested in laying down precepts for the confirmation of a speech. For any amplifications whatever, and every sort of indignation may be expressed, derived from those circumstances which are attributed to persons and to things, but still we had better consider those precepts which can be laid down separately with respect to indignation.
The first topic is derived from authority, when we relate what a great subject of anxiety that affair has been to the immortal gods, or to those whose authority ought to carry the greatest weight with it. And that topic will be derived from prophecies, from oracles, from prophets, from tokens, from prodigies, from answers, and from other things like these. Also from our ancestors, from kings, from states, from nations from the wisest men, from the senate, the people, the framers of laws. The second topic is that by which it is shown with amplification, by means of indignation, whom that affair concerns,—whether it concerns all men or the greater part of men, (which is a most serious business,) or whether it concerns the higher classes, such as those men are on whose authority the indignation which we are professing is grounded, (which is most scandalous,) or whether it affects those men who are one's equals in courage, and fortune, and personal advantages, (which is most iniquitous,) or whether it affects our inferiors, (which is most arrogant).
The third topic is that which we employ when we are inquiring what is likely to happen, if every one else acts in the same manner. And at the same time we point out if this man is permitted to act thus, that there will be many imitators of the same audacity, and then from that we shall be able to point out how much evil will follow.
The fourth topic is one by the use of which we show that many men are eagerly looking out to see what is decided, in order that they may be able to see by the precedent of what is allowed to one, what will be allowed to themselves also in similar circumstances.
The fifth topic is one by the use of which we show that everything else which has been badly managed, as soon as the truth concerning them is ascertained, may be all set right, that this thing, however, is one which, if it be once decided wrongly, cannot be altered by any decision, nor set right by any power.
The sixth topic is one by which the action spoken of is proved to have been done designedly and on purpose, and then we add this argument, that pardon ought not to be granted to an intentional crime.
The seventh topic is one which we employ when we say that any deed is foul, and cruel, and nefarious, and tyrannical; that it has been effected by violence or by the influence of riches—a thing which is as remote as possible from the laws and from all ideas of equal justice.
LIV. An eighth topic is one of which we avail ourselves to demonstrate that the crime which is the present subject of discussion is not a common one,—not one such as is often perpetrated. And, that is foreign to the nature of even men in a savage state, of the most barbarous nations, or even of brute beasts. Actions of this nature are such as are wrought with cruelty towards one's parents, or wife, or husband, or children, or relations, or suppliants; next to them, if anything has been done with inhumanity towards a man's elders,—towards those connected with one by ties of hospitality, —towards one's neighbours or one's friends,—to those with whom one has been in the habit of passing one's life,—to those by whom one has been brought up,—to those by whom one has been taught,—to the dead,—to those who are miserable and deserving of pity,—to men who are illustrious, noble, and who have been invested with honours and offices,—to those who have neither had power to injure another nor to defend themselves, such as boys, old men, women: by all which circumstances indignation is violently excited, and will be able to awaken the greatest hatred against a man who has injured any of these persons.
The ninth topic is one by which the action which is the subject of the present discussion is compared with others which are admitted on all hands to be offences. And in that way it is shown by comparison how much more atrocious and scandalous is the action which is the present subject of discussion.
The tenth topic is one by which we collect all the circumstances which have taken place in the performance of this action, and which have followed since that action, with great indignation at and reproach of each separate item, and by our description we bring the case as far as possible before the eyes of the judge before whom we are speaking, so that that which is scandalous may appear quite as scandalous to him as if he himself had been present to see what was done.
The eleventh topic is one which we avail ourselves of when we are desirous to show that the action has been done by him whom of all men in the world it least became to do it, and by whom indeed it ought to have been prevented if any one else had endeavoured to do it.
The twelfth topic is one by means of which we express our indignation that we should be the first people to whom this has happened, and that it has never occurred in any other instance.
The thirteenth topic is when insult is shown to have been added to injury, and by this topic we awaken hatred against pride and arrogance.
The fourteenth topic is one which we avail ourselves of to entreat those who hear us to consider our injuries as if they affected themselves; if they concern our children, to think of their own, if our wives have been injured, to recollect their own wives, if it is our aged relations who have suffered, to remember their own fathers or ancestors.
The fifteenth topic is one by which we say that those things which have happened to us appear scandalous even to foes and enemies, and as a general rule, indignation is derived from one or other of these topics.
LV. But complaint will usually take its origin from things of this kind. Complaint is a speech seeking to move the pity of the hearers. In this it is necessary in the first place to render the disposition of the hearer gentle and merciful, in order that it may the more easily be influenced by pity. And it will be desirable to produce that effect by common topics, such as those by which the power of fortune over all men is shown, and the weakness of men too is displayed, and if such an argument is argued with dignity and with impressive language, then the minds of men are greatly softened, and prepared to feel pity, while they consider their own weakness in the contemplation of the misfortunes of another.
Then the first topic to raise pity is that by which we show how great the prosperity of our clients was, and how great their present misery is.
The second is one which is divided according to different periods, according to which it is shown in what miseries they have been, and still are, and are likely to be hereafter.
The third topic is that by which each separate inconvenience is deplored, as, for instance, in speaking of the death of a man's son, the delight which the father took in his childhood, his love for him, his hope of him, the comfort he derived from him, the pains he took in his bringing up, and all other instances of the same sort, may be mentioned so as to exaggerate the complaint.
The fourth topic is one in which all circumstances which are discreditable or low or mean are brought forward, all circumstances which are unworthy of a man's age, or both, or fortune, or former honours or services, all the disasters which they have suffered or are liable to suffer.
The fifth topic is that by using which all disadvantages we brought separately before the eyes of the hearer, so that he who hears of them may seem to see them, and by the very facts themselves, and not only by the description of them, may be moved to pity as if he had been actually present.
The sixth topic is one by which the person spoken of is shown to be miserable, when he had no reason to expect any such fate; and that when he was expecting something else, he not only failed to obtain it, but fell into the most terrible misfortunes.
The seventh is one by which we suppose the fact of a similar mischance befalling the men who are listening to us, and require of them when they behold us to call to mind their own children, or their parents, or some one for whom they are bound to entertain affections.
The eighth is one by which something is said to have been done which ought not to have been done; or not to have been done which ought to have been. In this manner:—"I was not present, I did not see him, I did not hear his last words, I did not receive his last breath. Moreover, he died amid his enemies, he lay shamefully unburied in an enemy's country, being torn to pieces by wild beasts, and was deprived in death of even that honour which is the due of all men."
The ninth is one by which our speech is made to refer to things which are void both of language and sense; as if you were to adapt your discourse to a horse, a house, or a garment; by which topics the minds of those who are hearing, and who have been attached to any one, are greatly moved.
The tenth is one by which want, or weakness, or the desolate condition of any one is pointed out.
The eleventh is one in which is contained a recommendation to bury one's children, or one's parents, or one's own body, or to do any other such thing.
The twelfth is one in which a separation is lamented when you are separated from any one with whom you have lived most pleasantly,—as from a parent, a son, a brother, an intimate friend.
The thirteenth is one used when we complain with great indignation that we are ill-treated by those by whom above all others we least ought to be so,—as by our relations, or by friends whom we have served, and whom we have expected to be assistants to us; or by whom it is a shameful thing to be ill-treated,—as by slaves, or freedmen, or clients, or suppliants.
The fourteenth is one which is taken as an entreaty, in which those who hear us are entreated, in a humble and suppliant oration, to have pity on us.
The fifteenth is one in which we show that we are complaining not only of our own fortunes, but of those who ought to be dear to us.
The sixteenth is one by using which we show that our hearts are full of pity for others; and yet give tokens at the same time that it will be a great and lofty mind, and one able to endure disaster if any such should befall us. For often virtue and splendour, in which there is naturally great influence and authority, have more effect in exciting pity than humility and entreaties. And when men's minds are moved it will not be right to dwell longer on complaints; for, as Apollonius the rhetorician said, "Nothing dries quicker than a tear."
But since we have already, as it seems, said enough of all the different parts of a speech, and since this volume has swelled to a great size, what follows next shall be stated in the second book.
* * * * *
THE SECOND BOOK OF THE RHETORIC, OR OF THE TREATISE ON RHETORICAL INVENTION, OF M.T. CICERO.
I. Some men of Crotona, when they were rich in all kinds of resources, and when they were considered among the most prosperous people in Italy, were desirous to enrich the temple of Juno, which they regarded with the most religious veneration, with splendid pictures. Therefore they hired Zeuxis of Heraclea at a vast price, who was at that time considered to be far superior to all other painters, and employed him in that business. He painted many other pictures, of which some portion, on account of the great respect in which the temple is held, has remained to within our recollection; and in order that one of his mute representations might contain the preeminent beauty of the female form, he said that he wished to paint a likeness of Helen. And the men of Crotona, who had frequently heard that he excelled all other men in painting women, were very glad to hear this; for they thought that if he took the greatest pains in that class of work in which he had the greatest skill, he would leave them a most noble work in that temple.
Nor were they deceived in that expectation: for Zeuxis immediately asked of them what beautiful virgins they had; and they immediately led him into the palaestra, and there showed him numbers of boys of the highest birth and of the greatest beauty. For indeed, there was a time when the people of Crotona were far superior to all other cities in the strength and beauty of their persons; and they brought home the most honourable victories from the gymnastic contests, with the greatest credit. While, therefore, he was admiring the figures of the boys and their personal perfection very greatly; "The sisters," say they, "of these boys are virgins in our city, so that how great their beauty is you may infer from these boys." "Give me, then," said he, "I beg you, the most beautiful of these virgins, while I paint the picture which I promised you, so that the reality may be transferred from the breathing model to the mute likeness." Then the citizens of Crotona, in accordance with a public vote, collected the virgins into one place, and gave the painter the opportunity of selecting whom he chose. But he selected five, whose names many poets have handed down to tradition, because they had been approved by the judgment of the man who was bound to have the most accurate judgment respecting beauty. For he did not think that he could find all the component parts of perfect beauty in one person, because nature has made nothing of any class absolutely perfect in every part. Therefore, as if nature would not have enough to give to everybody if it had given everything to one, it balances one advantage bestowed upon a person by another disadvantage.
II. But since the inclination has arisen in my mind to write a treatise on the art of speaking, we have not put forth any single model of which every portion was necessarily to be copied by us, of whatever sort they might be; but, having collected together all the writers on the subject into one place, we have selected what each appears to have recommended which may be most serviceable, and we have thus culled the flower from various geniuses. For of those who are worthy of fame or recollection, there is no one who appears either to have said nothing well, or everything admirably. So that it seemed folly either to forsake the sensible maxims brought forward by any one, merely because we are offended at some other blunder of his, or, on the other hand, to embrace his faults because we have been tempted by some sensible precept which he has also delivered.
But if in other pursuits also men would select all that was found most sensible from many sources, instead of devoting themselves to one fixed leader, they would err less on the side of arrogance; they would not persist so much in error, and they would make less enormous mistakes through ignorance. And if we had as deep an acquaintance with this art as he had with that of painting, perhaps this work of ours might appear as admirable in its kind as his picture did. For we have had an opportunity of selecting from a much more copious store of models than he had. He was able to make his selection from one city, and from that number of virgins only which existed at that time and place; but we have had opportunity of making our selection from all the men who have ever lived from the very first beginning of this science, being reduced to a system up to the present day, and taking whatever we thought worth while from all the stores which lay open before us.
And Aristotle, indeed, has collected together all the ancient writers on this art, from the first writer on the subject and inventor of it, Tisias, and has compiled with great perspicuity the precepts of each of them, mentioning them by name, after having sought them out with exceeding care; and he has disentangled them with great diligence and explained their difficulties; and he has so greatly excelled the original writers themselves in suavity and brevity of diction, that no one is acquainted with their precepts from their own writings, but all who wish to know what maxims they have laid down, come back to him as to a far more agreeable expounder of their meaning.
And he himself has set before us himself and those too who had lived before his time, in order that we might be acquainted with the method of others, and with his own. And those who have followed him, although they have expended a great deal of labour on the most profound and important portions of philosophy, as he himself also, whose example they were following, had done, have still left us many precepts on the subject of speaking. And other masters of this science have also come forward, taking their rise, as it were in other springs, who have also been of great assistance in eloquence, as far at least as artificial rules can do any good. For there lived at the same time as Aristotle, a great and illustrious rhetorician, named Isocrates, though we have not entirely discovered what his system was.
But we have found many lessons respecting their art from his pupils and from those who proceeded immediately afterwards from this school.
III. From these two different families, as it were, the one of which, while it was chiefly occupied with philosophy, still devoted some portion of its attention to the rhetorical science, and the other was wholly absorbed in the study and teaching of eloquence, but both kinds of study were united by their successors, who brought to the aid of their own pursuits those things which appeared to have been profitably said by either of them, and those and the others their predecessors are the men whom we and all our countrymen have proposed to ourselves as models, as far as we were able to make them so, and we have also contributed something from our own stores to the common stock.
But if the things which are set forth in these books deserved to be selected with such great eagerness and care as they were, then certainly, neither we ourselves nor others will repent of our industry. But if we appear either rashly to have passed over some doctrine of some one worth noticing, or to have adopted it without sufficient elegance, in that case when we are taught better by some one, we will easily and cheerfully change our opinion. For what is discreditable is, not the knowing little, but the persisting foolishly and long in what one does not understand, because the one thing is attributed to the common infirmity of man, but the other to the especial fault of the individual.
Wherefore we, without affirming anything positively, but making inquiry at the same time, will advance each position with some doubt, lest while we gain this trifling point of being supposed to have written this treatise with tolerable neatness, we should lose that which is of the greater importance, the credit, namely, of not adopting any idea rashly and arrogantly. But this we shall endeavour to gain both at present and during the whole course of our life with great care, as far as our abilities will enable us to do so. But at present, lest we should appear to be too prolix, we will speak of the other points which it seems desirable to insist on.
Therefore, while we were explaining the proper classification of this art, and its duties, and its object, and its subject matter, and its divisions, the first book contained an account of the different kinds of disputes, and inventions, and statements of cases, and decisions. After that, the parts of a speech were described, and all necessary precepts for all of them were laid down. So that we not only discussed other topics in that book with tolerable distinctness, we spoke at that same time in a more scattered manner of the topics of confirmation and reprehension; and at present we think it best to give certain topics for confirming and reprehending, suited to every class of causes. And because it has been explained with some diligence in the former book, in what manner argumentations ought to be handled, in this book it will be sufficient to set forth the arguments which have been discovered for each kind of subject simply, and without any embellishment, so that, in this book, the arguments themselves may be found, and in the former, the proper method of polishing them. So that the reader must refer the precepts which are now laid down, to the topics of confirmation and reprehension.
IV. Every discussion, whether demonstrative, or deliberative, or judicial, must be conversant with some kind or other of statement of the case which has been explained in the former book; sometimes with one, sometimes with several. And though this is the case, still as some things can be laid down in a general way respecting everything, there are also other rules and different methods separately laid down for each particular kind of discussion. For praise, or blame, or the statement of an opinion, or accusation, or denial, ought all to effect different ends. In judicial investigations the object of inquiry is, what is just, in demonstrative discussion the question is what is honourable, in deliberations, in our opinion, what we inquire is, what is honourable and at the same time expedient. For the other writers on this subject have thought it right to limit the consideration of expediency to speeches directed to persuasion or dissuasion.
Those kinds of discussions then whose objects and results are different, cannot be governed by the same precepts. Not that we are saying now that the same statement of the case is not admissible in all of them, but some kinds of speech arise from the object and kind of the discussion, if it refers to the demonstration of some kind of life, or to the delivery of some opinion. Wherefore now, in explaining controversies, we shall have to deal with causes and precepts of a judicial kind, from which many precepts also which concern similar disputes will be transferred to other kinds of causes without much difficulty. But hereafter we will speak separately of each kind.
At present we will begin with the conjectural statement of a case of which this example may be sufficient to be given—A man overtook another on his journey as he was going on some commercial expedition, and carrying a sum of money with him, he, as men often do entered into conversation with him on the way, the result of which was, that they both proceeded together with some degree of friendship, so that when they had arrived at the same inn, they proposed to sup together and to sleep in the same apartment. Having supped, they retired to rest in the same place. But when the innkeeper (for that is what is said to have been discovered since, after the man had been detected in another crime) had taken notice of one of them, that is to say, of him who had the money, he came by night, after he had ascertained that they were both sound asleep, as men usually are when tired, and took from its sheath the sword of the one who had not the money, and which sword he had lying by his side and slew the other man with it and took away his money, and replaced the bloody sword in the sheath, and returned himself to his bed.
But the man with whose sword the murder had been committed, rose long before dawn and called over and over again on his companion; he thought that he did not answer because he was overcome with sleep; and so he took his sword and the rest of the things which he had with him, and departed on his journey alone. The innkeeper not long afterwards raised an outcry that the man was murdered, and in company with some of his lodgers pursued the man who had gone away. They arrest him on his journey, draw his sword out of its sheath, and find it bloody, the man is brought back to the city by them, and put on his trial. On this comes the allegation of the crime, "You murdered him," and the denial, "I did not murder him," and from this is collected the statement of the case. The question in the conjectural examination is the same as that submitted to the judges, "Did he murder him, or not?"
V. Now we will set forth the topics one portion of which applies to all conjectural discussion. But it will be desirable to take notice of this in the exposition of these topics and of all the others, and to observe that they do not all apply to every discussion. For as every man's name is made up of some letters, and not of every letter, so it is not every store of arguments which applies to every argumentation, but some portion which is necessary applies to each. All conjecture, then, must be derived either from the cause of an action, or from the person, or from the case itself.
The cause of an action is divided into impulsion and ratiocination. Impulsion is that which without thought encourages a man to act in such and such a manner, by means of producing some affection of the mind, as love, anger, melancholy, fondness for wine, or indeed anything by which the mind appears to be so affected as to be unable to examine anything with deliberation and care, and to do what it does owing to some impulse of the mind, rather than in consequence of any deliberate purpose.
But ratiocination is a diligent and careful consideration of whether we shall do anything or not do it. And it is said to have been in operation, when the mind appears for some particular definite reason to have avoided something which ought not to have been done, or to have adopted something which ought to have been done, so that if anything is said to have been done for the sake of friendship, or of chastising an enemy, or under the influence of fear, or of a desire for glory or for money, or in short, to comprise everything under one brief general head, for the sake of retaining, or increasing, or obtaining any advantage; or, on the other hand, for the purpose of repelling, or diminishing, or avoiding any disadvantage;—for those former things must fall under one or other of those heads, if either any inconvenience is submitted to for the purpose of avoiding any greater inconvenience, or of obtaining any more important advantage; or if any advantage is passed by for the sake of obtaining some other still greater advantage, or of avoiding some more important disadvantage.
This topic is as it were a sort of foundation of this statement of the case; for nothing that is done is approved of by any one unless some reason be shown why it has been done. Therefore the accuser, when he says that anything has been done in compliance with some impulse, ought to exaggerate that impulse, and any other agitation or affection of the mind, with all the power of language and variety of sentiments of which he is master, and to show how great the power of love is, how great the agitation of mind which arises from anger, or from any one of those causes which he says was that which impelled any one to do anything. And here we must take care, by an enumeration of examples of men who have done anything under the influence of similar impulse, and by a collation of similar cases, and by an explanation of the way in which the mind itself is affected, to hinder its appearing marvellous if the mind of a man has been instigated by such influence to some pernicious or criminal action.
VI. But when the orator says that any one has done such and such an action, not through impulse, but in consequence of deliberate reasoning, he will then point out what advantage he has aimed at, or what inconvenience he has avoided, and he will exaggerate the influence of those motives as much as he can, so that as far as possible the cause which led the person spoken of to do wrong, may appear to have been an adequate one. If it was for the sake of glory that he did so and so, then he will point out what glory he thought would result from it; again, if he was influenced by desire of power, or riches, or by friendship, or by enmity; and altogether whatever the motive was, which he says was his inducement to the action, he will exaggerate as much as possible.
And he is bound to give great attention to this point, not only what the effect would have been in reality, but still more what it would have been in the opinion of the man whom he is accusing. For it makes no difference that there really was or was not any advantage or disadvantage, if the man who is accused believed that there would or would not be such. For opinion deceives men in two ways, when either the matter itself is of a different kind from that which it is believed to be, or when the result is not such as they thought it would be. The matter itself is of a different sort when they think that which is good bad, or, on the other hand, when they think that good which is bad. Or when they think that good or bad which is neither good nor bad, or when they think that which is good or bad neither bad nor good.
Now that this is understood, if any one denies that there is any money more precious or sweeter to a man than his brother's or his friend's life, or even than his own duty, the accuser is not to deny that; for then the blame and the chief part of the hatred will be transferred to him who denies that which is said so truly and so piously. But what he ought to say is, that the man did not think so; and that assertion must be derived from those topics which relate to the person, concerning whom we must speak hereafter.
VII. But the result deceives a person, when a thing has a different result from that which the persons who are accused are said to have thought it would have. As when a man is said to have slain a different person from him whom he intended to slay, either because he was deceived by the likeness or by some suspicion, or by some false indication; or that he slew a man who had not left him his heir in his will, because he believed that he had left him his heir. For it is not right to judge of a man's belief by the result, but rather to consider with what expectation, and intention, and hope he proceeded to such a crime; and to recollect that the matter of real importance is to consider with what intention a man does a thing, and not what the consequence of his action turns out to be.
And in this topic this will be the great point for the accuser, if he is able to show that no one else had any reason for doing so at all. And the thing next in importance will be to show that no one else had such great or sufficient reason for doing so. But if others appear also to have had a motive for doing so, then we must show that they had either no power, or no opportunity, or no inclination to do it. They had no power if it can be said that they did not know it, or were not in the place, or were unable to have accomplished it; they had no opportunity, if it can be proved that any plan, any assistants, any instruments, and all other things which relate to such an action, were wanting to them. They had no inclination, if their disposition can be said to be entirely alien to such conduct, and unimpeachable. Lastly, whatever arguments we allow a man on his trial to use in his defence, the very same the prosecutor will employ in delivering others from blame. But that must be done with brevity, and many arguments must be compressed into one, in order that he may not appear to be accusing the man on his trial for the sake of defending some one else, but to be defending some one else with a view to strengthen his accusation against him.
VIII. And these are for the most part the things which must be done and considered by an accuser. But the advocate for the defence will say, on the other hand, either that there was no motive at all, or, if he admits that there was, he will make light of it, and show that it was a very slight one, or that such conduct does not often proceed from such a motive. And with reference to this topic it will be necessary to point out what is the power and character of that motive, by which the person on his trial is said to have been induced to commit any action; and in doing this it is requisite to adduce instances and examples of similar cases, and the actual nature of such a motive is to be explained as gently as possible, so that the circumstance which is the subject of the discussion may be explained away, and instead of being considered as a cruel and disorderly act, may be represented as something more mild and considerate, and still the speech itself may be adapted to the mind of the hearer, and to a sort of inner feeling, as it were, in his mind.
But the orator will weaken the suspicions arising from the ratiocination, if he shall say either that the advantage intimated had no existence, or a very slight one, or that it was a greater one to others, or that it was no greater advantage to himself than to others, or that it was a greater disadvantage than advantage to himself. So that the magnitude of the advantage which is said to have been desired, was not to be compared with the disadvantage which was really sustained, or with the danger which was incurred. And all those topics will be handled in the same manner in speaking of the avoiding of disadvantage.
But if the prosecutor has said that the man on his trial was pursuing what appeared to him to be an advantage, or was avoiding that which appeared to him to be a disadvantage, even though he was mistaken in that opinion, then the advocate for the defence must show that no one can be so foolish as to be ignorant of the truth in such an affair. And if that be granted, then the other position cannot be granted, that the man ever doubted at all what the case was, but that he, without the least hesitation, considered what was false as false, and what was true as true. But if he doubted, then it was a proof of absolute insanity for a man under the influence of a doubtful hope to incur a certain danger.
But as the accuser when he is seeking to remove the guilt from others must use the topics proper to an advocate for the defence; so the man on his trial must use those topics which have been allotted to an accuser, when he wishes to transfer an accusation from his own shoulders to those of others.
IX. But conjectures will be derived from the person, if those things which have been attributed to persons are diligently considered, all of which we have mentioned in the first book; for sometimes some suspicion arises from the name. But when we say the name, we mean also the surname. For the question is about the particular and peculiar name of a man, as if we were to say that a man is called Caldus because he is a man of a hasty and sudden disposition; or that ignorant Greeks have been deceived by men being called Clodius, or Caecilius, or Marcus.
And we may also derive some suspicious circumstances from nature; for all these questions, whether it is a man or a woman, whether he is of this state or that one, of what ancestors a man is descended, who are his relations, what is his age, what is his disposition, what bodily strength, or figure, or constitution he has, which are all portions of a man's nature, have much influence in leading men to form conjectures.
Many suspicions also are engendered by men's way of life, when the inquiry is how, and by whom, and among whom a man was brought up and educated, and with whom he associates, and what system and habits of domestic life he is devoted to.
Moreover, argumentation often arises from fortune; when we consider whether a man is a slave or a free man, rich or poor, noble or ignoble, prosperous or unfortunate; whether he now is, or has been, or is likely to be a private individual or a magistrate; or, in fact, when any one of those circumstances is sought to be ascertained which are attributable to fortune. But as habit consists in some perfect and consistent formation of mind or body, of which kind are virtue, knowledge, and their contraries; the fact itself, when the whole circumstances are stated, will show whether this topic affords any ground for suspicion. For the consideration of the state of a man's mind is apt to give good grounds for conjecture, as of his affectionate or passionate disposition, or of any annoyance to which he has been exposed; because the power of all such feelings and circumstances is well understood, and what results ensue after any one of them is very easy to be known.
But since study is an assiduous and earnest application of the mind to any particular object with intense desire, that argument which the case itself requires will easily be deduced from it. And again, some suspicion will be able to be inferred from the intention; for intention is a deliberate determination of doing or not doing something. And after this it will be easy to see with respect to facts, and events, and speeches, which are divided into three separate times, whether they contribute anything to confirming the conjectures already formed in the way of suspicion.
X. And those things indeed are attributed to persons, which when they are all collected together in one place, it will be the business of the accuser to use them as inducing a disapprobation of the person; for the fact itself has but little force unless the disposition of the man who is accused can be brought under such suspicion as to appear not to be inconsistent with such a fault. For although there is no great advantage in expressing disapprobation of any one's disposition, when there is no cause why he should have done wrong, still it is but a trifling thing that there should be a motive for an offence, if the man's disposition is proved to be inclined to no line of conduct which is at all discreditable. Therefore the accuser ought to bring into discredit the life of the man whom he is accusing, by reference to his previous actions, and to show whether he has ever been previously convicted of a similar offence. And if he cannot show that, he must show whether he has ever incurred the suspicion of any similar guilt; and especially, if possible, that he has committed some offence or other of some kind under the influence of some similar motive to this which is in existence here, in some similar case, or in an equally important case, or in one more important, or in one less important. As, if with respect to a man who he says has been induced by money to act in such and such a manner, he were able to show that any other action of his in any case had been prompted by avarice.
And again it will be desirable in every cause to mention the nature, or the manner of life, or the pursuits, or the fortune, or some one of those circumstances which are attributed to persons, in connexion with that cause which the speaker says was the motive which induced the man on his trial to do wrong; and also, if one cannot impute anything to him in respect of an exactly corresponding class of faults, to bring the disposition of one's adversary into discredit by reference to some very dissimilar class. As, if you were to accuse him of having done so and so, because he was instigated by avarice; and yet, if you are unable to show that the man whom you accuse is avaricious, you must show that other vices are not wholly foreign to his nature, and that on that account it is no great wonder if a man who in any affair has behaved basely, or covetously, or petulantly, should have erred in this business also. For in proportion as you can detract from the honesty and authority of the man who is accused, in the same proportion has the force of the whole defence been weakened.
If it cannot be shown that the person on his trial has been ever before implicated in any previous guilt, then that topic will come into play which we are to use for the purpose of encouraging the judges to think that the former character of the man has no bearing on the present question; for that he has formerly concealed his wickedness, but that he is now manifestly convicted; so that it is not proper that this case should be looked at with reference to his former life, but that his former life should now be reproved by this conduct of his, and that formerly he had either no opportunity of doing wrong, or no motive to do so. Or if this cannot be said, then we must have recourse to this last assertion,—that it is no wonder if he now does wrong for the first time, for that it is necessary that a man who wishes to commit sin, must some time or other commit it for the first time. If nothing whatever is known of his previous life, then it is best to pass over this topic, and to state the reason why it is passed over, and then to proceed at once to corroborate the accusation by arguments.
XI. But the advocate for the defence ought in the first place to show, if he can, that the life of the person who is accused has always been as honourable as possible. And he will do this best by recounting any well known services which he has rendered to the state in general, or any that he has done to his parents, or relations, or friends, or kinsmen, or associates, or even any which are more remarkable or more unusual, especially if they have been done with any extraordinary labour, or danger, or both, or when there was no absolute necessity, purely because it was his duty, or if he has done any great benefit to the republic, or to his parents, or to any other of the people whom I have just mentioned, and if, too, he can show that he has never been so influenced by any covetousness as to abandon his duty, or to commit any error of any description. And this statement will be the more confirmed, if when it is said that he had an opportunity of doing something which was not quite creditable with impunity, it can be shown at the same time that he had no inclination to do it.
But this very kind of argument will be all the stronger if the person on his trial can be shown to have been unimpeachable previously in that particular sort of conduct of which he is now accused, as, for instance, if he be accused of having done so and so for the sake of avarice, and can be proved to have been all his life utterly indifferent to the acquisition of money. On this indignation may be expressed with great weight, united with a complaint that it is a most miserable thing, and it may be argued that it is a most scandalous thing, to think that that was the man's motive, when his disposition during the whole of his life has been as unlike it as possible. Such a motive often harries audacious men into guilt, but it has no power to impel an upright man to sin. It is unjust, moreover, and injurious to every virtuous man, that a previously well-spent life should not be of the greatest possible advantage to a man at such a time, but that a decision should be come to with reference only to a sudden accusation which can be got up in a hurry, and with no reference to a man's previous course of life, which cannot be extemporised to suit an occasion, and which cannot be altered by any means.
But if there have been any acts of baseness in his previous life, or if they be said to have undeservedly acquired such a reputation, or if his actions are to be attributed by the envy, or love of detraction, or mistaken opinion of some people, either to ignorance, or necessity, or to the persuasion of young men, or to any other affection of mind in which there is no vice, or if he has been tainted with errors of a different kind, so that his disposition appears not entirely faultless, but still far remote from such a fault, and if his disgraceful or infamous course of life cannot possibly be mitigated by any speech,—then it will be proper to say that the inquiry does not concern his life and habits, but is about that crime for which he is now prosecuted, so that, omitting all former actions, it is proper that the matter which is in hand should be attended to.
XII. But suspicions may be derived from the fact itself, if the administration of the whole matter is examined into in all its parts; and these suspicions will arise partly from the affair itself when viewed separately, and partly from the persons and the affairs taken together. They will be able to be derived from the affair, if we diligently consider those circumstances which have been attributed to such affairs. And from them all the different genera, and most subordinate species, will appear to be collected together in this statement of the case.
It will therefore be desirable to consider in the first place what circumstances there are which are united to the affair itself,—that is to say, which cannot be separated from it, and with reference to this topic it will be sufficient to consider what was done before the affair in question took place from which a hope arose of accomplishing it, and an opportunity was sought of doing it, what happened with respect to the affair itself, and what ensued afterwards. In the next place, the execution of the whole affair must be dealt with for this class of circumstances which have been attributed to the affair has been discussed in the second topic.
So with reference to this class of circumstances we must have a regard to time, place, occasion, and opportunity, the force of each particular of which has been already carefully explained when we were laying down precepts for the confirmation of an argument. Wherefore, that we may not appear to have given no rules respecting these things, and that we may not, on the other hand, appear to have repeated the same things twice over, we will briefly point out what it is proper should be considered in each part. In reference to place, then, opportunity is to be considered; and in reference to time, remoteness; and in reference to occasion, the convenience suitable for doing anything; and with reference to facility, the store and abundance of those things by means of which anything is done more easily, or without which it cannot be done at all.
In the next place we must consider what is added to the affair, that is to say, what is greater, what is less, what is equally great, what is similar. And from these topics some conjecture is derived, if proper consideration is given to the question how affairs of greater importance, or of less, or of equal magnitude, or of similar character, are usually transacted. And in this class of subjects the result also ought to be examined into; that is to say, what usually ensues as the consequence of every action must be carefully considered; as, for instance, fear, joy, trepidation.
But the fourth part was a necessary consequence from those circumstances which we said were attendant on affairs. In it those things are examined which follow the accomplishment of an affair, either immediately or after an interval. And in this examination we shall see whether there is any custom, any action, any system, or practice, or habit, any general approval or disapproval on the part of mankind in general, from which circumstance some suspicion at times arises.
XIII. But there are some suspicions which are derived from the circumstances which are attributed to persons and things taken together. For many circumstances arising from fortune, and from nature, and from the way of a man's life, and from his pursuits and actions, and from chance, or from speeches, or from a person's designs, or from his usual habit of mind or body, have reference to the same things which render a statement credible or incredible, and which are combined with a suspicion of the fact.
For it is above all things desirable that inquiry should be made in this way, of stating the case first of all, whether anything could be done; in the next place, whether it could have been done by any one else; then we consider the opportunity, on which we have spoken before; then whether what has been done is a crime which one is bound to repent of; we must inquire too whether he had any hope of concealing it; then whether there was any necessity for his doing so; and as to this we must inquire both whether it was necessary that the thing should be done at all, or that it should be done in that manner. And some portion of these considerations refer to the design, which has been already spoken of as what is attributed to persons; as in the instance of that cause which we have mentioned. These circumstances will be spoken of as before the affair,—the facts, I mean, of his having joined himself to him so intimately on the march, of his having sought occasion to speak with him, of his having lodged with him, and supped with him. These circumstances were a part of the affair,—night, and sleep. These came after the affair,—the fact of his having departed by himself; of his having left his intimate companion with such indifference; of his having a bloody sword.
Part of these things refer to the design. For the question is asked, whether the plan of executing this deed appears to have been one carefully devised and considered, or whether it was adopted so hastily that it is not likely that any one should have gone on to crime so rashly. And in this inquiry we ask also whether the deed could have been done with equal ease in any other manner; or whether it could have happened by chance. For very often if there has been a want of money, or means, or assistants, there would not appear to have been any opportunity of doing such a deed. If we take careful notice in this way, we shall see that all these circumstances which are attributed to things, and those too which are attributed to persons, fit one another. In this case it is neither easy nor necessary, as it is in the former divisions, to draw distinctions as to how the accuser and how the advocate for the defence ought to handle each topic. It is not necessary, because, when the case is once stated, the circumstances themselves will teach those men, who do not expect to find everything imaginable in this treatise, what is suitable for each case; and they will apply a reasonable degree of understanding to the rules which are here laid down, in the way of comparing them with the systems of others. And it is not easy, because it would be an endless business to enter into a separate explanation with respect to every portion of every case; and besides, these circumstances are adapted to each part of the case in different manners on different occasions.
XIV. Wherefore it will be desirable to consider what we have now set forth. And our mind will approach invention with more ease, if it often and carefully goes over both its own relation and that of the opposite party, of what has been done; and if, eliciting what suspicions each part gives rise to, it considers why, and with what intention, and with what hopes and plans, each thing was done. Why it was done in this manner rather than in that; why by this man rather than by that; why it was done without any assistant, or why with this one; why no one was privy to it, or why somebody was, or why this particular person was; why this was done before; why this was not done before; why it was done in this particular instance; why it was done afterwards; what was done designedly, or what came as a consequence of the original action; whether the speech is consistent with the facts or with itself; whether this is a token of this thing, or of that thing, or of both this and that, and which it is a token of most; what has been done which ought not to have been done, or what has not been done which ought to have been done.
When the mind considers every portion of the whole business with this intention, then the topics which have been reserved, will come into use, which we have already spoken of; and certain arguments will be derived from them both separately and unitedly. Part of which arguments will depend on what is probable, part on what is necessary; there will be added also to conjecture questions, testimony, reports. All of which things each party ought to endeavour by a similar use of these rules to turn to the advantage of his own cause. For it will be desirable to suggest suspicions from questions, from evidence, and from some report or other, in the same manner as they have been derived from the cause, or the person, or the action.
Wherefore those men appear to us to be mistaken who think that this kind of suspicion does not need any regular system, and so do those who think that it is better to give rules in a different manner about the whole method of conjectural argument. For all conjecture must be derived from the same topics; for both the cause of every rumour and the truth of it will be found to arise from the things attributed to him who in his inquiry has made any particular statement, and to him who has done so in his evidence. But in every cause a part of the arguments is joined to that cause alone which is expressed, and it is derived from it in such a manner that it cannot be very conveniently transferred from it to all other causes of the same kind; but part of it is more rambling, and adapted either to all causes of the same kind, or at all events to most of them.
XV. These arguments then which can be transferred to many causes, we call common topics. For a common topic either contains some amplification of a well understood thing,—as if any one were desirous to show that a man who has murdered his father is worthy of the very extremity of punishment; and this topic is not to be used except when the cause has been proved and is being summed up;—or of a doubtful matter which has some probable arguments which can be produced on the other side of the question also; as a man may say that it is right to put confidence in suspicions, and, on the contrary, that it is not right to put confidence in suspicions. And a portion of the common topics is employed in indignation or in complaint, concerning which we have spoken already. A part is used in urging any probable reason on either side.
But an oration is chiefly distinguished and made plain by a sparing introduction of common topics, and by giving the hearers actual information by some topics, and by confirming previously used arguments in the same way. For it is allowable to say something common when any topic peculiar to the cause is introduced with care; and when the mind of the hearer is refreshed so as to be inclined to attend to what follows, or is reawakened by everything which has been already said. For all the embellishments of elocution, in which there is a great deal both of sweetness and gravity, and all things, too, which have any dignity in the invention of words or sentences, are bestowed upon common topics.
Wherefore there are not as many common topics for orators as there are for lawyers. For they cannot be handled with elegance and weight, as their nature requires, except by those who have acquired a great flow of words and ideas by constant practice. And this is enough for us to say in a general way concerning the entire class of common topics.
XVI. Now we will proceed to explain what common topics are usually available in a conjectural statement of a case. As for instance—that it is proper to place confidence in suspicions, or that it is not proper, that it is proper to believe witnesses, or that it is not proper, that it is proper to believe examinations, or that it is not proper, that it is proper to pay attention to the previous course of a man's life, or that it is not proper, that it is quite natural that a man who has done so and so should have committed this crime also, or that it is not natural, that it is especially necessary to consider the motive, or that it is not necessary. And all these common topics, and any others which arise out of any argument peculiar to the cause in hand, may be turned either way.
But there is one certain topic for an accuser by which he exaggerates the atrocity of an action, and there is another by which he says that it is not necessary to pity the miserable. That, too, is a topic for an advocate for the defence by which the false accusations of the accusers are shown up with indignation, and that by which pity is endeavoured to be excited by complaints. These and all other common topics are derived from the same rules from which the other systems of arguments proceed, but those are handled in a more delicate, and acute, and subtle manner, and these with more gravity, and more embellishment, and with carefully selected words and ideas. For in them the object is, that that which is stated may appear to be true. In these, although it is desirable to preserve the appearance of truth, still the main object is to give importance to the statement. Now let us pass on to another statement of the case.
XVII. When there is a dispute as to the name of a thing because the meaning of a name is to be defined by words, it is called a definitive statement. By way of giving an example of this, the following case may be adduced. Caius Flaminius, who as consul met with great disasters in the second Punic war, when he was tribune of the people, proposed, in a very seditious manner, an agrarian law to the people, against the consent of the senate, and altogether against the will of all the nobles. While he was holding an assembly of the people, his own father dragged him from the temple. He is impeached of treason. The charge is—"You attacked the majesty of the people in dragging down a tribune of the people from the temple." The denial is—"I did not attack the majesty of the people." The question is—"Whether he attacked the majesty of the people or not?" The argument is—"I only used the power which I legitimately had over my own son." The denial of this argument is—"But a man who, by the power belonging to him as a father, that is to say, as a private individual, attacks the power of a tribune of the people, that is to say, the power of the people itself, attacks the majesty of the people." The question for the judges is—"Whether a man attacks the majesty of the people who uses his power as a father in opposition to the power of a tribune?" And all the arguments must be brought to bear on this question.
And, that no one may suppose by any chance that we are not aware that some other statement of the case may perhaps be applicable to this cause, we are taking that portion only for which we are going to give rules. But when all parts have been explained in this book, any one, if he will only attend diligently, will see every sort of statement in every sort of cause, and all their parts, and all the discussions which are incidental to them. For we shall mention them all.
The first topic then for an accuser is a short and plain definition, and one in accordance with the general opinion of men, of that name, the meaning of which is the subject of inquiry. In this manner—"To attack the majesty of the people is to detract from the dignity, or the rank, or the power of the people, or of those men to whom the people has given power." This definition being thus briefly set forth in words, must be confirmed by many assertions and reasons and must be shown to be such as you have described it. Afterwards it will be desirable to add to the definition which you have given, the action of the man who is accused, and to add it too with reference to the character which you have proved it to have. Take for instance—"to attack the majesty of the people." You must show that the adversary does attack the majesty of the people, and you must confirm this whole topic by a common topic, by which the atrocity or indignity of the fact, and the whole guilt of it, and also our indignation at it, may be increased.
After that it will be desirable to invalidate the definition of the adversaries, but that will be invalidated if it be proved to be false. This proof must be deduced from the belief of men concerning it, when we consider in what manner and under what circumstances men are accustomed to use that expression in their ordinary writing or talking. It will also be invalidated if the proof of that description be shown to be discreditable or useless, and if it be shown what disadvantages will ensue if that position be once admitted. And it will be derived from the divisions of honour and usefulness, concerning which we will give rules when we lay down a system of deliberations. And if we compare the definition given by our adversaries with our own definition, and prove our own to be true, and honourable, and useful, and theirs to be entirely different. But we shall seek out things like them in an affair of either greater, or less, or equal importance, from which our description will be proved.
XVIII Now, if there be more matters to be defined,—as for instance, if we inquire whether he is a thief or a sacrilegious person who has stolen sacred vessels from a private house,—we shall have to employ many definitions, and then the whole cause will have to be dealt with on a similar principle. But it is a common topic to dwell on the wickedness of that man who endeavours to wrest to his own purposes not only the effect of things, but also the meaning of words, in order both to do as he pleases, and to call what he does by whatever name he likes.
Then the first topic to be used by an advocate for the defence, is also a brief and plain definition of a name, adopted in accordance with the opinion of men. In this way—To diminish the majesty of the people is to usurp some of the public powers when you are not invested with any office. And then the confirmation of this definition is derived from similar instances and similar principles. Afterwards comes the separation of one's own action from that definition. Then comes the common topic by which the expediency or honesty of the action is increased.
Then comes the reprehension of the definition of the opposite party, which is also derived from all the same topics as those which we have prescribed to the accuser. And afterwards other arguments will be adduced besides the common topic. But that will be a common topic for the advocate of the defence to use, by which he will express indignation that the accuser not only alters facts in order to bring him into danger, but that he attempts also to alter words. For those common topics which are assumed either for the purpose of demonstrating the falsehood of the accusations of the prosecutor, or for exciting pity, or for expressing indignation at an action, or for the purpose of deterring people from showing pity, are derived from the magnitude of the danger, not from the nature of the cause. Wherefore they are incidental not to every cause, but to every description of cause. We have made mention of them in speaking of the conjectural statement of a case, but we shall use induction when the cause requires.
XIX But when the pleading appears to require some translation, or to need any alteration, either because he is not pleading who ought to do so, or he is not pleading with the man he ought, or before the men whom he ought to have for hearers, or in accordance with the proper law, or under liability to the proper punishment, or in reference to the proper accusation, or at the proper time, it is then called a transferable statement of the case. We should require many examples of this if we were to inquire into every sort of translation, but because the principle on which the rules proceed is similar, we have no need of a superfluity of instances. And in our usual practice it happens from many causes that such translations occur but seldom. For many actions are prevented by the exceptions allowed by the praetors, and we have the civil law established in such a way that that man is sure to lose his cause who does not conduct it as he ought. So that those actions greatly depend on the state of the law. For there the exceptions are demanded, and an opportunity is allowed of conducting the cause in some manner, and every formula of private actions is arranged. But in actual trials they occur less frequently, and yet, if they ever do occur at all, they are such that by themselves they have less strength, but they are confirmed by the assumption of some other statement in addition to them. As in a certain trial which took place "When a certain person had been prosecuted for poisoning, and, because he was also accused of parricide, the trial was ordered to proceed out of its regular order, when in the accusation some charges were corroborated by witnesses and arguments, but the parricide was barely mentioned, it was proper for the advocate for the defence to dwell much and long on this circumstance, as, nothing whatever was proved respecting the death of the accused person's parent, and therefore that it was a scandalous thing to inflict that punishment on him which is inflicted on parricides, but that that must inevitably be the case if he were convicted, since that it is added as one of the counts of the indictment, and since it is on that account that the trial has been ordered to be taken out of its regular order. Therefore if it is not right that that punishment should be inflicted on the criminal, it is also not right that he should be convicted, since that punishment must inevitably follow a conviction." Here the advocate for the defence, by bringing the commutation of the punishment into his speech, according to the transferable class of topics, will invalidate the whole accusation. But he will also confirm the alteration by a conjectural statement of the case when employed in defending his client on the other charges.
XX But we may give an example of translation in a cause, in this way—When certain armed men had come for the purpose of committing violence, and armed men were also prepared on the other side, and when one of the armed men with his sword cut off the hand of a certain Roman knight who resisted his violence, the man whose hand had been cut off brings an action for the injury. The man against whom the action is brought pleads a demurrer before the praetor, without there being any prejudice to a man on trial for his life. The man who brings the action demands a trial on the simple fact, the man against whom the action is brought says that a demurrer ought to be added. The question is—"Shall the demurrer be allowed or not?" The reason is—"No, for it is not desirable in an action for damages that there should be any prejudged decision of a crime, such as is the subject of inquiry when assassins are on their trial." The arguments intended to invalidate this reason are—"The injuries are such that it is a shame that a decision should not be come to as early as possible." The thing to be decided is—"Whether the atrocity of the injuries is a sufficient reason why, while that point is before the tribunal, a previous decision should be given concerning some greater crime, concerning which a tribunal is prepared." And this is the example. But in every cause the question ought to be put to both parties, by whom, and by whose agency, and how, and when it is desirable that the action should be brought, or the decision given; or what ought to be decided concerning that matter.
That ought to be assumed from the divisions of the law, concerning which we must speak hereafter; and we then ought to argue as to what is usually done in similar cases, and to consider whether, in this instance, out of wickedness, one course is really adopted and another pretended; or whether the tribunal has been appointed and the action allowed to proceed through folly or necessity, because it could not be done in any other manner, or owing to an opportunity which offered for acting in such a manner; or whether it has been done rightly without any interruption of any sort. But it is a common topic to urge against the man who seeks to avail himself of a demurrer to an action, that he is fleeing from a decision and from punishment, because he has no confidence in the justice of his cause. And that, owing to the demurrer, everything will be in confusion, if matters are not conducted and brought into court as they ought to be; that is to say, if it is either pleaded against a man it ought not, or with an improper penalty, or with an improper charge, or at an improper time; and this principle applies to any confusion of every sort of tribunal. Those three statements of cases then, which are not susceptible of any decisions, must be treated in this manner. At present let us consider the question and its divisions on general principles.
XXI. When the fact and the name of the action in question is agreed upon, and when there is no dispute as to the character of the action to be commenced; then the effect, and the nature, and the character of the business is inquired into. We have already said, that there appear to be two divisions of this; one which relates to facts and one which relates to law. It is like this: "A certain person made a minor his heir, but the minor died before he had come into the property which was under the care of guardians. A dispute has arisen concerning the inheritance which came to the minor, between those who are the reversionary heirs of the father of the minor,—the possession belongs to the reversionary heirs." The first statement is that of the next of kin—"That money, concerning which he, whose next of kin we are, said nothing in his will, belongs to us." The reply is—"No, it belongs to us who are the reversionary heirs according to the will of his father." The thing to be inquired into is—To whom does it rightfully belong? The argument is—"For the father made a will for himself and for his son as long as the latter was a minor, wherefore it is quite clear that the things which belonged to the son are now ours, according to the will of the father." The argument to upset this is—"Aye, the father made his own will, and appointed you as reversionary heir, not to his son, but himself. Wherefore, nothing except what belonged to him himself can be yours by his will." The point to be determined is, whether any one can make a will to affect the property of his son who is a minor, or, whether the reversionary heirs of the father of the family himself, are not the heirs of his son also as long as he is a minor. And it is not foreign to the subject, (in order that I may not, on the one hand, omit to mention it, or, on the other, keep continually repeating it,) to mention a thing here which has a bearing on many questions. There are causes which have many reasons, though the grounds of the cause are simple, and that is the case when what has been done, or what is being defended, may appear right or natural on many different accounts, as in this very cause. For this further reason may be suggested by the heirs—"For there cannot be more heirs than one of one property, for causes quite dissimilar, nor has it ever happened, that one man was heir by will, and another by law, of the same property." This, again, is what will be replied, in order to invalidate this—"It is not one property only; because one part of it was the adventitious property of the minor, whose heir no one had been appointed by will at that time, in the case of anything happening to the minor, and with respect to the other portion of the property, the inclination of the father, even after he was dead, had the greatest weight, and that, now that the minor is dead, gives the property to his own heirs."