Institutes of Oratory
On the Education of an Orator
1. There have been authors [Aristotle, Rhet. i. 1, 4], and some, indeed, of high reputation, who have thought that the sole duty of an orator is to inform. Excitement of the feelings, they considered, was to be prohibited, for two reasons; first, because all perturbation of the mind is an evil [according to the Stoics]; and, secondly, because it is inexcusable for a judge to be diverted from the truth by pity, anger, or any similar passion; and to aim at pleasing the audience, when the object of speaking is to gain victory, they regarded not only as needless in a pleader, but scarcely worthy even of a man. 2. Many, too, who doubtless did not exclude those arts from the department of the orator, considered, nevertheless, that his proper and peculiar office was to establish his own propositions and to refute those of his adversary.
3. Whichsoever of these opinions is right, (for I do not here offer my own judgment,) this book must appear, in the estimation of both parties, extremely necessary, as the entire subject of it is proof and refutation; to which all that has hitherto been said on judicial causes is subservient. 4. For there is no other object either in an introduction or a narrative than to prepare the judge; and to know the states of causes, and to contemplate all the other matters of which I have treated above, would be useless, unless we proceed to proof. 5. In fine, of the five parts into which we have distinguished judicial pleading, whatever other may occasionally be unnecessary in a cause, there certainly never occurs a suit in which proof is not required.
As to directions regarding it, I think that I shall make the best division of them, by first showing what are applicable to all kinds of questions, and next, by enlarging on what are peculiar to the several sorts of causes.
1. In the first place, then, the division which has been laid down by Aristotle [Rhet. i. 1, 2] has gained the approbation of almost all rhetoricians; namely, that there are some proofs which an orator adopts that are unconnected with the art of speaking, and others which he himself extracts, and, as it were, produces, from his cause. Hence they have called the one sort ατεχνοι, "inartificial," and the other εντεχνοι, "artificial." 2. Of the former kind, are precognitions, public reports, evidence extracted by torture, writings, oaths, and the testimony of witnesses, with which the greater part of forensic pleadings are wholly concerned.
But though these species of proof are devoid of art in themselves, they yet require, very frequently, to be supported or overthrown with the utmost force of eloquence; and those writers, therefore, appear to me highly deserving of blame, who have excluded all this kind of proofs from the rules of art. 3. It is not, however, my intention to collect all that is usually said for and against these points; for I do not design to lay down common places, which would be a task of infinite labor, but merely to point out a general method and plan. The way being shown, each must exert his ability, not only to follow it, but to find out similar courses, as the nature of particular cases may require; since no one can speak of all kinds of causes, even among such as have occurred, to say nothing of such as may occur.
1. As to precognitions, the whole matter of them ranges itself under three heads; first, cases which have been already decided under similar circumstances, and which may more properly be termed precedents; as about wills of fathers which have been annulled or ratified in opposition to their children; secondly, judgments relative to the cause itself, (from which also is derived the name,) such as those which are said to have been pronounced upon Oppianicus [Cicero pro Cluent. c. 17, seqq.], and those of the senate upon Milo [Cic. pro Mil. c. 5], or, thirdly, when sentence has already been given on the same affair, as in the case of persons that have been sent out of the country, of appeals in regard to personal liberty [whoever thought that he was unjustly detained in slavery might procure an assertor to make application for his liberty by a judicial process, he himself being unable to plead his own cause. This was called causa liberalis], and of divisions in the judgments of the centumviri, when they have been separated into two parties [Pliny speaks of quadruplicia centumviralia, Epist. i. 18, 3; vi. 33, 2]. 2. Precognitions are established chiefly by two things; the authority of those who have given judgment, and the similitude of the cases in question; as for the annulling of them, it is rarely obtained by reproaching the judges, unless there be a manifest error in them; for each of the judges wishes the sentence of another to stand firm, remembering that he himself is also to pronounce a sentence, and being unwilling to offer a precedent which may recoil upon himself.
3. The pleader must have recourse, therefore, in the first two cases, if the matter allow, to the discovery of some dissimilarity in the cases; (and there is scarcely one exactly like another in all particulars;) or, if that course be impossible, or the cause be the same, some negligence in the pleadings must be exposed, or we must complain of the weakness of the parties against whom judgment was given, or influence that corrupted the witnesses, or of public odium, or ignorance; or we must find something that has since occurred to affect the cause. 4. If none of these allegations be possible, we may observe that many motives on trials have led to unjust sentences, and that through such influence Rutilius [Publius Rutilius Rufus was found guilty of extortion, A.U.C. 662, in consequence of a conspiracy of the publicani against him, he having defended Asia from their injustice. His property, being confiscated, was found to be too small to pay the fine laid upon him, and, at the same time, to have been obtained by the most honorable means. See Dion Cass. p. Reim. 44. He was a Stoic, and pupil of Panaetius, and Seneca frequently mentions him in conjunction with Socrates as an example of wisdom and fortitude in enduring adversity. See Sen. de Prov. c. 3; de Tranq. Anim. c. 15; de Vit. Beat. c. 18; de Benef. v. 17, 37; Epist. 24, 67, 79; also Duker ad Flor. iii. 17, 3; Vell. Pat. ii. 13, 2. Ernesti Clav. Cic. v. Rutilius: Schneider ad Cic. Brut. c. 30] was condemned, and Clodius and Catiline [Cicero joins the same three names together in his speech against Piso, c. 39. Catiline was accused of connection with a vestal virgin, A.U.C. 682, and of extortion, A.U.C. 688. From the first charge he escaped by the influence of Terentia, the wife of Cicero, whose sister Fabia is said to have been the vestal with whom he was concerned; of the second he was acquitted through the prevarication of Clodius the accuser; see Cic. in Fragm. apud Asc, Pedian. in Orat, Cic. contria Anton. p. 146, 151] acquitted. The judges may also be solicited rather to examine the question themselves than to rest their faith on the verdict of others. 5. But against decrees of the senate, and the ordinances of princes or magistrates, there is no remedy, unless some difference, however small, be discovered in the cases, or some subsequent determination of the same persons, or personages of the same dignity, at variance with the former. If nothing of the kind be discoverable, there will be no case for judgment.
Common fame and report, one party will call the consent of the whole people, and a sort of public evidence; the other will term it mere talk without any certain authority, to which malignity has given rise, and credulity augmentation; an evil which may affect every man, even the most innocent, through the artifice of enemies spreading falsehood. Examples will not be wanting to support either representation.
1. The case is similar with regard to evidence exacted by torture, which is a frequent subject of discussion: as one side will call torture an infallible means for discovering truth, the other will represent it as a cause of the utterance of falsehood; because to some persons ability to endure makes lying easy, to others weakness renders it necessary. To what purpose should I say more on this subject? The pleadings of the ancients and the moderns are alike full of instances. 2. Yet under this head there will be circumstances peculiar to certain cases; for if the question be about applying the torture, it will make a great difference who it is that demands it, and whom he demands or offers for it, and against whom, and from what motive; or, if the torture has been applied, who presided at it, who it was that was tortured, and how; whether he uttered what was incredible or consistent; whether he persisted in his first assertions, or made any change in them; whether he confessed at the commencement of the torture, or after it had proceeded for some time; questions which are as numberless as the variety of cases.
1. Against writings, too, pleaders have often spoken, and must often speak, as we know that it is common for documents not only to be set aside, but to be charged with being forged. As there must, in the latter case, be either guilt or ignorance on the part of those who signed them, ignorance will be the safer and lighter charge; because the number of those whom we actually accuse will be smaller. 3. But the whole of such a proceeding must rest on arguments drawn from the particular case; if, for example, it is difficult to prove, or even incredible, that what the writing states occurred; or if (as more frequently happens) it may be overthrown by proofs equally inartificial; if he to whose prejudice the deed was signed, or any one of those who signed it, can be said to have been absent at the time, or to have died before it; if dates disagree; or if anything that occurred before or after is at variance with what is written. Even a mere inspection is often sufficient to discover forgery.
1. As to an oath, parties going to law either offer their own, or refuse to receive that of their adversary when offered; or they require one from him, or refuse to take one when required from themselves. For a person to offer to take an oath himself, without allowing his opponent to take his, is commonly a sign of bad faith. 2. He, however, who shall do so, must either shelter himself under such purity of moral conduct as to make it incredible that he will commit perjury, or under the influence of religion; (in regard to which he will gain more credit if he act in such a manner as not to appear to come forward with eagerness to take his oath, and yet not to shrink from taking it;) or on the small importance of the cause, should such be its nature, for the sake of which he would hardly incur the divine displeasure; or if, in addition to other means of gaining his cause, he offers his oath, superabundantly, as it were, as the testimony of a pure conscience.
3. He who shall be unwilling to receive the oath of his adversary, will allege the inequality of the terms, and remark that the fear of taking an oath is lightly regarded by many, as even philosophers have been found to deny that the gods pay any attention to human affairs; and that he who is ready to swear without any one putting him to his oath, is disposed to give sentence himself in his own cause, and to show how light and easy a thing he considers the obligation by which he offers to bind himself [if he himself is at the pains of bringing forward many arguments and proofs, and the other party is excused from doing anything more than taking his oath]. 4. But he who offers to accept his adversary's oath, besides appearing to act with moderation, as he makes his opponent the arbiter of the cause, relieves the judge also, to whom the decision belongs, from a heavy responsibility, since he would certainly rest rather on another man's oath than on his own [for the judges took an oath to give just judgment, and whatever sentence they pronounced was pronounced on their oath].
5. Hence the refusal to take oath becomes the more difficult, unless the affair in question happens to be such that it cannot be supposed to be known to the party. If this excuse be wanting, there will be but one course left for him, which is to say that odium is sought to be excited against him by his opponent, whose object is to make it appear that he has ground for complaint in a cause in which he cannot obtain victory; and, accordingly, though a dishonest man would have eagerly availed himself of such a proposal, he himself would rather prove what he asserts than leave it doubtful in the mind of any one whether he were guilty of perjury.
6. But, in my younger days, men who had grown old in pleading used to lay it down as a rule that we should never give our opponent the option of taking his oath; as also that he should never be allowed the choice of a judge [in the appointment of the judges by lot, we ought not to yield to the wish and option of our adversary; nor in choosing an arbiter in a case]; and that a judge should not be taken from the counsellors [by this word we are not to understand pleaders, but those persons whom Asconius, in Divinationem, p. 20, mentions as attending their friends on trials] of the opposite party; since, if it was thought dishonorable in an advocate to speak against his client, it should assuredly be considered more dishonorable to do anything that would injure him.
1. The greatest efforts of pleaders, however, are employed about evidence. Evidence is given either in writing, or by witnesses present in court. The opposition to writings is the more simple; for shame may seem to have had less preventive power in the presence of only a few witnesses [less than it would have in an open court where testimony is given orally], and absence may be unfavorably represented as intimating self distrust. If the character of the writer is open to no reflection, we may perhaps throw some discredit on that of the witnesses to it. 2. Besides, a secret feeling is entertained unfavorable to all who offer evidence in writing, as no man gives it in that way unless of his own free-will [other witnesses were summoned, and obliged to give evidence at a certain time; those who gave their testimony in writing gave it voluntarily], and thus shows that he is no friend to the party against whom he deposes. Yet a pleader on the opposite side should not be ready to admit that a friend may not speak truth on behalf of a friend, or an enemy against an enemy, if the credit of either be unimpeached. But the subject, in both its bearings, furnishes much matter for consideration.
3. With witnesses who are present there may be great contention, and we accordingly engage, whether against them or for them, with the double force of regular speeches and interrogatories. 4. In regular speeches, we commonly offer observations, first of all, for and against witnesses in general. This is a common topic for argument; one side maintaining that there is no evidence stronger than that which rests on human knowledge, and the other, to detract from the credit of such knowledge, enumerating every cause by which testimony is rendered false.
5. The next step is, when pleaders make special attacks, though on bodies of men; for we know that the testimonies of whole nations have been invalidated by orators, as well as whole classes of evidence; as in the case of hear-say witnesses, for pleaders maintain that they are not in reality witnesses, but mere reporters of the words of unsworn individuals; and in cases of extortion, those who swear that they have paid money to the accused, are to be regarded as parties in the prosecution, not as witnesses. 6. Sometimes a pleader's remarks are directed against individual witnesses; a kind of attack which we find in many pleadings, sometimes combined with a defense, and sometimes given separately, as that of Cicero on the witness Vatinius [he had given evidence against Publius Sextius when defended by Cicero, who, Epist. ad Lentulum i. 9, and ad Q. Fratr. ii. 4, observes that he attacked him with great vehemence on that occasion].
7. Let me therefore consider the whole subject, as I have taken upon myself to attempt the entire education of an orator; otherwise, the two books composed on this head by Domitius Afer would have been sufficient, a rhetorician whom I attended with great respect when he was old and I was young, so that the contents of his books were not only read by me, but learned from his own mouth. He very justly makes it a rule that it is the great business of an orator, in regard to this part of his cause, to gain a thorough knowledge of the whole of it; but it is a rule to be observed in regard to every part. 8. How this knowledge may be attained, I shall show when I arrive at the part of my work destined for that subject. Such knowledge will suggest matter for questions, and supply, as it were, weapons to the hand; and it will also show us for what the mind of the judge should be prepared by our speech; as it is by a regular address that the credit of witnesses should be either established or overthrown; since every judge is affected by testimony just as he has been previously influenced to believe or disbelieve it.
9. Since, then, there are two sorts of witnesses, those who appear voluntarily, and those whom the judge commonly summons on public trial according to law, (of the first of which kinds either party may avail themselves, while the latter is conceded only to accusers,) let us distinguish the duty of the pleader who produces witnesses from that of him who refutes their testimony.
10. He that produces a voluntary witness, may know what he has to say, and consequently appears to have the easier task in examining him. But even this undertaking requires penetration and watchfulness; and we must be cautious that the witness may not appear timid, or inconsistent, or foolish; 11. for witnesses are confused, or caught in snares, by the advocates on the opposite side, and, when they are once caught, they do more harm than they would have done service if they had been firm and resolute. They should therefore be well exercised before they are brought into court, and tried with various interrogatories, such as are likely to be put by an advocate on the other side. By this means they will either be consistent in their statements, or, if they stumble at all, will be set upon their feet again, as it were, by some opportune question from him by whom they were brought forward.
12. But even in regard to those who are consistent in their evidence, we must be on our guard against treachery; for they are often thrown in our way by the opposite party, and, after promising everything favorable, give answers of a contrary character, and have the more weight against us when they do not refute what is to our prejudice, but confess the truth of it. 13. We must inquire, therefore, what motives they appear to have for declaring against our adversary; nor is it sufficient to know that they were his enemies; we must ascertain whether they have ceased to be so; whether they may not seek reconciliation with him at our expense; whether they have been bribed; or whether they may not have changed their purpose from penitential feelings; precautions, not only necessary in regard to witnesses who know that which they intend to say is true, but far more necessary in respect to those who promise to say what is false. 14. For they are more likely to repent, and their promises are more to be suspected; and even if they keep to their word, it is much more easy to refute them.
15. Of witnesses who are summoned to give evidence, some are willing to hurt the accused party, and some unwilling; and the accuser sometimes knows their inclination, and is sometimes ignorant of it. Let us suppose for the moment that he knows it; yet, in either case, there is need of the greatest circumspection on the part of him who examines them. 16. If he find the witness disposed to prejudice the accused, he ought to take the utmost care that his disposition may not show itself; and he should not question him at once on the point for decision, but proceed to it circuitously, so that what the examiner chiefly wants him to say, may appear to be wrung from him.
Nor should he press him with too many interrogatories, lest the witness, by replying freely to everything, should invalidate his own credit; but he should draw from him only so much as it may seem reasonable to elicit from one witness. 17. But in the case of one who will not speak the truth unless against his will, the great happiness in an examiner is, to extort from him what he does not wish to say; and this cannot be done otherwise than by questions that seem wide of the matter in hand; for to these he will give such answers as he thinks will not hurt his party; and then, from various particulars which he may confess, he will be reduced to the inability of denying what he does not wish to acknowledge. 18. For as, in a set speech, we commonly collect detached arguments, which, taken singly, seem to bear but lightly on the accused, but by the combination of which we succeed in proving the charge, so a witness of this kind must be questioned on many points regarding antecedent and subsequent circumstances, and concerning places, times, persons, and other subjects; so that he may be brought to give some answer; after which he must either acknowledge what we wish, or contradict what he himself has said.
19. If we do not succeed in that object, it will then be manifest that he is unwilling to speak; and he must be led on to other matters, that he may be caught tripping, if possible, on some point, though it be unconnected with the cause; he may also he detained an extraordinary time, that by saying everything, and more than the case requires, in favor of the accused, he may make himself suspected by the judge; and he will thus do no less damage to the accused than if he had stated the truth against him. 20. But if (as we supposed in the second place) the accuser be ignorant of the witness's disposition, he must sound his inclination cautiously, interrogating him, as we say, step by step, and leading him gradually to the answer which is necessary to be elicited from him. 21. But as there is sometimes such art in witnesses, that they answer at first according to an examiner's wish, in order to gain greater credit when they afterwards speak in a different way, it is wise in an orator to dismiss a suspected witness before he does any harm.
22. For advocates that appear on behalf of defendants, the examination of witnesses is in one respect more easy, and in another more difficult, than for those who are on the side of the prosecutor. It is more difficult on this account, that they can seldom or ever know, before the trial, what the witness is going to say; and it is more easy, inasmuch as they know, when he comes to be questioned, what he has said. 23. Under the uncertainty, therefore, which there is in the matter, great caution and inquisition is necessary, to ascertain what sort of character he is that prosecutes the defendant; what feeling he entertains against him; and from what motives: and all such matters are to be exposed and set aside in our pleading, whether we would have the witnesses appear to have been instigated by hatred, or by envy, or by desire of favor, or by money.
If the opposite party, too, produce but few witnesses, we may reflect on their small number; if they are extraordinarily numerous, we may insinuate that they are in conspiracy; if they are of humble rank, we may speak with contempt of their meanness; if persons of consequence, we may deprecate their influence. 24. It will be of most effect, however, to expose the motives on which the witnesses speak against the defendant, which may be various, according to the nature of causes and the parties engaged in them; for to such representations as I have just mentioned, the opposite party can answer with common-place arguments; as, when the witnesses are few and humble, the prosecutor can boast of his simple honesty, in having sought for none but such as were acquainted with the case in hand; while to commend a large number, or persons of consideration, is a somewhat easier task. 25. But occasionally, as we have to commend witnesses, so we have to decry them, whether their testimony be read in our pleading, or they be summoned to give it personally. Such attempts were more easy and frequent in the times [what times those were, it is not easy to say. That witnesses were examined in the age of Cicero, either before or during the pleadings, is not apparent either from his speeches or from the testimony of any other writers] when the witnesses were not examined after the pleading was ended. As to what we should say against the witnesses respectively, it can only be drawn from their individual characters.
26. The manner of questioning witnesses remains to be considered. In this part of our duty, the principal point is to know the witness well; for if he is timid, he may be frightened; if foolish, misled; if irascible, provoked; if vain, flattered; if prolix, drawn from the point. If, on the contrary, a witness is sensible and self-possessed, he may be hastily dismissed, as malicious and obstinate; or he may be confuted, not with formal questioning, but with a short address from the defendant's advocate; or he may be put out of countenance, if opportunity offer, by a jest; or, if anything can be said against his moral character, his credit may be overthrown by infamous charges. 27. It has been advantageous, on certain occasions, not to press too severely on men of probity and modesty; for those who would have fought against a determined assailant are softened by gentle treatment.
Every question is either about some point within the cause or on some point without it. On matters within the cause, the advocate of the accused, as we also directed the accuser, may frequently, by putting questions a little widely, and on subjects from which no suspicion will arise, and by comparing previous with subsequent answers, reduce witnesses to such a dilemma as to extort from them against their will what may be of service to his own cause. 28. On this point there is certainly no instruction or exercise given in the schools; and excellence in it depends rather on natural acuteness, or experience, than anything else.
If any model, however, ought to be pointed out for imitation, the only one that I can recommend is that which may be drawn from the dialogues of the Socratic philosophers, and especially Plato, in which the questions are so artful, that, though the respondent answers correctly to most of them, the matter is nevertheless brought to the conclusion which the questioner wishes to establish. 29. Fortune sometimes favors us, by causing something to be said by a witness that is inconsistent with the rest of his evidence; and sometimes (as more frequently happens) she makes one witness say what is at variance with the evidence of another; but an ingenious mode of interrogation will often lead methodically to that which is so frequently the effect of chance.
30. On matters without the cause, also, many serviceable questions are often put to a witness; as concerning the character of other witnesses; concerning his own; whether anything dishonorable or mean can be laid to the charge of any of them; whether they have any friendship with the prosecutor, or enmity against the defendant; in replying to which they are likely to say something of which we may take advantage, or may be convicted of falsehood or malevolence. 31. But all questioning ought to be extremely circumspect, because a witness often utters smart repartees in answer to the advocates, and is thus regarded with a highly favorable feeling by the audience in general. Questions should be put, too, as far as possible, in familiar language, that the person under examination, who is very frequently illiterate, may clearly understand, or at least may not pretend that he does not understand; an artifice which throws no small damp on the spirit of the examiner.
32. As to those disgraceful practices of sending a suborned witness to sit on the benches of the opposite party, that in being called from thence he may do him the more damage, either by speaking directly against the person on whose side he had placed himself, or by assuming, after having appeared to benefit him by his evidence, airs of impudence and folly, by which he not only discredits his own testimony, but detracts from the weight of that of others who may have been of service; I mention them, not that they may be adopted, but that they may be shunned.
There is frequently a collision between written attestations on the one side and the witnesses who appear in person on the other; and this furnishes matter of debate for both parties; the one resting their arguments on the oaths of the witnesses, and the other on the unanimity of those who signed the depositions. 33. There is often a question, too, between the witnesses and the arguments; it being argued, on the one side, that there is in the witnesses knowledge of facts and regard for their oaths, and in the arguments nothing but mere subtlety; on the other side, that witnesses are procured by favor, fear, money, malice, hatred, friendship, or solicitation, while arguments are drawn from the nature of the subject; that in hearing witnesses the judge trusts to himself, in listening to arguments, to another. 34. Such questions are common to numbers of causes; they have always been, and always will be, subjects for violent discussion.
Sometimes there are witnesses on both sides, and the question arises, with regard to themselves, Which of them are the most respectable? with regard to the cause, Which of them have given the most credible evidence? and, with regard to the litigating parties, Which may have had most influence over the witnesses?
35. To these kinds of evidence, if any one wishes to add what are called supernatural testimonies, from responses, oracles, and omens, let him be reminded that there are two modes of treating them, the one general, in respect to which there is an eternal dispute between the Stoics and Epicureans, whether the world is governed by a divine providence; the other special, in reference to certain parts [as when we inquire, for example, whether a knowledge of the future can be obtained by inspecting the entrails of victims, or not] of supernatural evidence, as they happen severally to affect the question. 36. For the credit of oracles may be established or overthrown in one way, and that of soothsayers, augurs, diviners, and astrologers, in another, as the nature of the things themselves is entirely different.
In supporting or demolishing such circumstances in a cause the voice of the pleader has much to do; as if, for instance, expressions have been uttered under the effects of wine, or in sleep, or in madness, or if information has been caught from the mouth of children; for in regard to all such individuals,' one party will say that they do not feign, and the other that they mean nothing.
37. The mode of proof by witnesses may not only be offered with great effect, but may also be greatly missed where it is not produced: You gave me the money: who counted it? where? whence did he come? You accuse me of poisoning: where did I buy the poison? from whom? for how much? by whose agency did I administer it? who had any knowledge of the deed? Almost all these points Cicero discusses in his speech for Cluentius under a charge of poisoning.
Such are the remarks which I have ventured to offer, as briefly as I could, concerning inartificial proofs.
1. The other sort of proofs, which come wholly under the head of art, and consist in matters adapted to produce belief, is, for the most part, either altogether neglected, or very lightly touched upon by those rhetoricians who, avoiding arguments, as repulsive and rugged, repose themselves in more agreeable spots, and, (like those who are said by the poets, on being charmed with the taste of a certain herb among the Lotophagi, or with the song of the Sirens, to have preferred pleasure to security,) while pursuing an empty semblance of glory, fail to obtain that success for which eloquence is exerted.
2. But other efforts of oratory, which run through the continued course of a speech, are designed as aids or embellishments to the arguments of a cause, and add to those sinews, by which it is strengthened, the appearance of a body, as it were, superinduced upon them; so that if anything is said to have been done, perchance, through anger, or fear, or covetousness, we can expatiate somewhat fully on the nature of those passions; and, in similar accessory parts, we praise, blame, exaggerate, extenuate, describe, deter, complain, console, exhort. 3. Such oratorical efforts may be of great service in treating matters which are certain, or of which we speak as being certain; and I would not deny that there is some advantage in pleasing, and very much in exciting the feelings; but pleasure and excitement have the most effect when the judge thinks that he has acquired a full knowledge of the cause; knowledge which we cannot convey to him but by arguments and by every other means in support of facts.
4. But before I distinguish the different sorts of artificial proofs, I think it necessary to intimate that there are certain qualities common to all kinds of proof. For there is no question which does not relate either to a thing or to a person; nor can there be any grounds for argument, except respecting matters that affect things or persons; and these matters are either to be considered by themselves or referred to something else; 5. nor can there be any proof except from things consequent or opposite, [aut ex consequentibus aut ex repugnantibus. Lacking ex antecedentibus in conformity with Aristotle Analyt. prior. i. 27; consequents, antecedents, and opposites] which we must seek either in the time that preceded the alleged fact, in the time at which it took place, or in the time that followed it; nor can anything be proved but from some other thing, which must either be greater or less than it, or equal to it.
6. As for arguments, they arise either from general questions, which may be considered in themselves, apart from from any connection with things or persons, or from the cause itself, when anything is found in it not derived from common reasoning, but peculiar to that point on which the decision is to be pronounced. Of all conclusions, moreover, some are necessary, some probable, some not impossible.
7. Of all proofs, too, there are four forms. Because one thing is, another is not: as, It is day, therefore it is not night; because there is one thing, there is also another: as, The sun is above the earth, therefore it is day; because one thing is not, another is: as, It is not night, therefore it is day; because one thing is not, another is not: as, He is not a rational being, therefore he is not a man. Having promised these general remarks, I shall proceed to particulars.
1. All artificial proof, then, depends on indications, or arguments, or examples. I am aware that indications are thought by many [Cicero Topic, c. 1, 12] a species of arguments; and I had, in consequence, two motives for distinguishing them; the first, that indications generally, almost always, belong to inartificial proofs; for a blood-stained garment, a shriek, a livid spot, and similar particulars, are circumstances of the same nature as writings, reports, and depositions; they are not invented by the orator, but communicated to him with the cause itself; 2. the second, that neither can indications, if they are certain, be arguments, because, where there are certain indications, there is no question, and there can be no room for argument except upon a controverted point; nor, if they are uncertain, can they be arguments, but have themselves need of arguments.
3. All artificial proofs, then, as I say, are distinguished, first of all, into two kinds, one in which the conclusion is necessary, the other in which it is not necessary. The former are those which cannot be otherwise, and which the Greeks call τεκμηρια, or αλυτα σημεια; these scarcely seem to me to come under the rules of art; for when there is an irrefutable indication, there can be no ground for dispute. 4. This happens whenever a thing must be, or must have been; or cannot be, or cannot have been; and this being stated in a cause, there can be no contention about the point.
5. This kind of proofs is considered with reference to all times, past, present, and future; for that she who has had a child must have lain with a man regards the past; that there must be waves when a strong wind has fallen on the sea, concerns the present; and that he whose heart is wounded must die, relates to the future. [The reader may think it a whimsical observation, but I cannot help thinking that the three examples here brought are strong evidences, or, to speak in our author's terms, presumptions [signa, "indications"] of the antiquity of the gospel history; unless we suppose, contrary to all credibility, that Quintilian stumbled upon them by chance. We here see the facts of our Saviour's birth, his miracles, and his resurrection, attacked in the strongest manner.] In like manner it is impossible that there can be harvest where there has been no sowing; that a person can be at Rome when he is at Athens; or that he who is without a scar can have been wounded with a sword.
6. Some have the same force when reversed; as, a man who breathes must be alive, and a man who is alive must breathe; but others are not reversible; for it does not follow that, because he who walks must move, therefore he who moves must walk. 7. It is consequently possible that she who has not had a child may have had connection with a man; that where there are waves, there may yet be no wind on the sea; that the heart of him who dies may not have been wounded; and, in like manner, that there may have been sowing, when there was no harvest; that he who was not at Athens, may not have been at Rome; and that he who is marked with a scar may not have been wounded with a sword.
8. The other sort of indications are those from which there is no absolutely necessary conclusion, and which the Greeks call εικοτα: these, though they are not sufficient of themselves to remove all doubt, yet, when they are combined with others, are of great weight.
9. That from which something else is inferred, as from blood is suspected murder, the Greeks term, as I said, σημειον, that is, signum, "a sign;" though some of our writers have used the word indicium, "an indication," and others vestigium, "a trace." But as the blood that stained a garment may have proceeded from a sacrifice or may have flowed from the nose, it does not necessarily follow that he who has a blood-stained garment has committed a murder.
10. Yet, though it is not a sufficient proof of itself, still, when combined with other circumstances, it cannot but be regarded as evidence; as if the man with the blood-stained garment was the enemy of him who was killed; if he had previously threatened his life; if he was in the same place with him; to which circumstances when some presumptive proof is added, it makes what was suspected appear certain. 11. Among such indications, however, there are some which either side may interpret in its own way, as livid spots, and swelling of the body; for they may seem to be the effects either of poison or intemperance, and a wound in the breast, from which people may argue that he in whom it is found has perished either by his own hand or by that of another. The strength of such indications is proportioned to the support which they receive from other circumstances.
12. Of indications, which are presumptions indeed, but from which no necessary conclusion follows, Hermagoras thinks the following an example: Atalanta is not a virgin, because she strolls through the woods with young men. If we admit such a circumstance as a presumption, I fear that we shall make everything that has any reference to a fact a presumption. Such circumstances are however treated by rhetoricians as presumptive proofs. 13. Nor do the Areopagites, when they condemned a boy to death for picking out the eyes of quails, [the boy might have bred the quails for the game called ortygocopia, which was much practiced among the Greeks, and concerning which Gesner refers to Pollux Onomast. vii. 136, ix. 108] appear to have had any other thought than that such an act was the indication of a cruel disposition, likely to do mischief to many if he should be allowed to reach maturity. Hence also the popularity of Spuriiis Maelius and Marcus Manlius was regarded as an indication that they were aspiring to sovereignty.
14. But I am afraid that this mode of reasoning would carry us too far; for if a woman's bathing with men is a sign that she is an adulteress, it will be a sign of the same nature if she takes her meals with young men, or if she enjoys the intimate friendship of any man; as a person might perhaps call a depilated skin, a sauntering walk, and a delicate dress, signs of effeminacy and unmanliness, if he thinks that they proceed from corrupt morals, as blood flows from a wound; a sign being properly that which, proceeding from a matter about which there is a question, falls under our own observation. 15. Those appearances, also, which, as they are constantly noticed, are vulgarly called signs, such as prognostics of the weather, The golden moon is red from the approach of wind, and The mischievous crow calls for rain with a loud voice [Virg. Georg. i. 481, 388], may, if they have their causes from the state of the atmosphere, receive that appellation; 16. for if the moon is red from the influence of wind, its redness is a sign of wind; and if, as the same poet infers, a condensed or rarefied atmosphere gives rise to a chattering of birds [Virg. Georg. i. 419], we shall consider such chattering also a sign. We may likewise observe that small things are sometimes signs of great, as this very chattering of the crow; that greater things are signs of less, nobody wonders.
1. I now proceed to speak of arguments; for under this term we include all that the Greeks call ενθυμηματα, επιχειρηματα, and αποδειξεις, of which, though there is some difference in the names, yet the meaning is nearly the same. The word enthymema, (which we translate, indeed, as we cannot render it otherwise, by commentum or commentatio, but we had better use the Greek word itself,) has three meanings; one, which signifies everything that is conceived in the mind; (but with this meaning we have now no concern;) another, which signifies a proposition with a reason; 2. a third, which signifies a conclusion of an argument, deduced from consequents or opposites; although with regard to this sense authors differ; for some call a conclusion from consequents an epicheirema; but more will be found of opinion that a conclusion from opposites [Cicero Topic. c. 13] only should be called an enthymeme; and hence Cornificius gives it the appellation contrarium. 3. Some have called it a rhetorical syllogism, others an imperfect syllogism, because it is not comprised in distinct parts, or in the same number of parts, as the regular syllogism, such exactness, indeed, not being required in the orator.
4. Valgius calls the epicheirema aggressio, "attempt." Celsus thinks that it is not our management of the subject, but the subject itself which we attempt, (that is, the argument by which we propose to prove anything, and which, though not yet set forth in words, is fully conceived in the mind,) that is called an epicheirema. 6. Others are of opinion that it is not an intended or imperfect proof, but a complete one, proceeding even to the last species [ultimam speciem. Porphyry called it το ειδικωτατον ειδος. The more common appellation is species infima], that ought to receive this appellation; and hence its proper acceptation, and that which is most in use, is that in which it is understood to be a certain comprehension of a thought which consists at least of three parts [the major, minor, and conclusion. See Cic. De Inv. i. 34]. 6. Some have called an epicheirema a reason, Cicero [De Inv. i. 31, 34], more happily, a reasoning; although he seems to have taken that name rather from the syllogism than from anything else; for he calls the status syllogisticus a "ratiocinatory state," and gives examples from the philosophers; and, as there is some affinity between the syllogism and the epicheirema, he may be thought to have adopted that term judiciously.
7. As to the αποδειξις, it is an evident proof; and hence the term γραμμικαι αποδειξις, "linear demonstrations," among geometers. Caecilius thinks that it differs from the epicheirema only in the manner of its conclusion, and that an αποδειξις is an imperfect epicheirema, for the same reason for which we said an enthymeme differs from a syllogism; for an enthymeme is a part of a syllogism. Some think that the apodeixis is included in the epicheirema, and is the part of it which contains the proof. 8. But authors, however different in other respects, concur in defining both of them so far similarly, as to say that the reasoning in them is from that which is certain in order to give confirmation to that which is doubtful; a quality which is common to all arguments, for what is certain is never deduced from what is uncertain. To all these forma of argument the Greeks give the general name of πιστεις, which we might by a literal interpretation render fides, "faith;" but we shall make the sense of it clearer if we call it proof.
9. But the word argument has itself also several significations; for the subjects of plays, composed for acting on the stage, are called arguments; Asconius Pedianus, in explaining the topics of the orations of Cicero, says The argument is this: Cicero himself, in writing to Brutus, says, "Fearing lest I should bring from thence any evil upon my Cato, though the argument was far from similar," etc.; whence it appears that every subject for writing is so called. 10. Nor is this wonderful, when the word is common even among artisans [artificers not only call the material on which they work argumentum, but also the elaboration and construction of their material. Thus Cicero in Verr. iv. 56 says ex ebore diligentissime perfecta argumenta in valvis erant]; Virgil [Aen. vii. 791] also has argumentum ingens, "a great argument;" and a work of any considerable number of heads is vulgarly called argumentosum, "argumentative."
But we have now to speak of that sense of the word argument, which includes proof, indication, credibility, aggression, which are all used as names for the same thing, but, in my opinion, with too little distinction. 11. For proof and credibility are established not only by arguments dependent on reasoning, but by such as are called inartificial. As to signs, which Celsus [ille] calls indications, I have already distinguished them from arguments.
Since, then, an argument is a process of reasoning affording a proof, by which one thing is gathered from another, and which establishes what is doubtful by reference to what is certain, there must assuredly be something in a cause that does not require proof; for unless there be something which is true, or which appears true, and from which support may be gained for what is doubtful, there will be no ground on which we can prove anything. 12. As certainties, accordingly, we have, in the first place, what is perceived by the senses, as what we see, what we hear, as signs or indications; next, what is admitted by the general consent of mankind, as, that there are gods, and that respect is to be paid to parents; 13. also, what is established by the laws, or what is passed into general usage, with the concurrence, if not of the whole world, at least of that community or people among whom we have to plead, as indeed, in what is called legal right, most points are settled, not by positive laws, but by common custom; and, lastly, whatever is agreed between the two parties, whatever is proved, or whatever our adversary does not dispute.
14. For thus will arise an argument, As the world is governed by a providence, the state ought to be governed by some ruling power; showing that if it is acknowledged that the world is governed by a providence, the state ought likewise to be governed. 15. But to him who would handle arguments properly, the nature and quality of all things whatever ought to be known, as well as their general effects; for it is by such knowledge that arguments called εικοτα, "probable," are established. 16. Now of probability there are three degrees; one, which rests on very strong grounds, because that to which it is applied generally happens, as that children are loved by their parents; a second, somewhat more inclined to uncertainty, as that he who is in good health to-day will live till to-morrow; a third, which is only not repugnant to credibility, as that a theft committed in a house was committed by one of the household.
17. Hence it is that Aristotle, in his second book on the Art of Rhetoric [in the first seventeen chapters], has so carefully considered what generally attends on various things and persons, and what things or what persons nature has rendered friendly or unfriendly to other things or other persons; as, what accompanies riches, or ambition, or superstition; what the good approve; what the bad pursue; what soldiers or husbandmen desire; and by what means things are severally shunned or sought. 18. But this subject I do not intend to pursue; for it is not only long, but even impracticable, or rather infinite; and it is plain, moreover, to the common understanding of all. If any one shall desire, however, to be enlightened upon it, I have shown him from whom [Aristotle] he may seek instruction.
19. But all probability, on which the far greater part of reasoning depends, flows from sources of this nature, whether it be credible that a father was killed by his son; that a father committed incest with his daughter; and, again, whether poisoning be credible in a step-mother, or adultery in a man of licentious life, also, whether it be credible that a crime was committed in the sight of the whole world, or that false testimony was given for a small bribe; because each of these crimes proceeds from a peculiar cast, as it were, of character; I mean generally, not always, else all reasoning about them would be absolute certainty, and not mere probable argument.
20. Let us now examine the places of arguments; although, indeed, the topics of which I have previously spoken are regarded as places of argument by some rhetoricians. By places, let me observe, I mean, not common places, in the sense in which the word is generally understood, in reference to luxury, adultery, or such subjects; but the seats of arguments, in which they lie concealed, and from which they must be drawn forth. 21. For as all kinds of fruits are not produced in all countries, and as you will be unable to find a bird or a beast, if you are ignorant where it is usually produced or makes its abode, and as, among the several kinds of fishes, some delight in a smooth and others in a rocky bottom of the water, while particular sorts are confined to particular regions or coasts, and you could not attract the ellops [a fish that was thought a delicacy by the ancients; Pliny H. N. ix. 17, 27; xxxii. 11, 54] or the scarus [this the Romans also thought a delicacy; mentioned by Horace, Ovid, Martial, Pliny, and Petronius] to our shores, so every kind of argument is not to be got from every place, and is consequently not everywhere to be sought; 22. otherwise there would be much wandering about, and, after enduring the utmost labor, we should not be able to find, unless by chance, that for which we should seek without method. But if we ascertain where particular arguments offer themselves, we shall, when we come to the place where they lie, easily discern what is in it.
23. First of all, then, arguments are to be drawn from persons; there being, as I said, a general division of all arguments into two kinds, those which concern things, and those which concern persons; and the accidents of things being cause, time, place, opportunity, instruments, manner, and the like. As to persons, I do not undertake to treat of every particular concerning them, as most rhetoricians have done, but only of those topics from which arguments may be drawn.
24. These, then, are, birth, for people are mostly thought similar in character to their fathers and forefathers, and sometimes derive from their origin motives for living an honorable or dishonorable life; nation, for every nation has its peculiar manners, and the same thing will not be alike probable in regard to a Barbarian, a Roman, and a Greek; 25. country, for, in like manner, the laws, institutions, and opinions of states have their peculiarities; sex, for you would more readily believe a charge of robbery with regard to a man, and poisoning with regard to a woman; age, for different modes of action belong to different periods of life; education and discipline, for it makes a difference by whom, and in what manner a person has been brought up; 26. bodily constitution, for beauty is often drawn into an argument for libertinism, and strength for insolence, and the contrary qualities for contrary conduct; fortune, for the same charge is not equally credible in reference to a rich and a poor man, in reference to one who is surrounded with relations, friends, and clients, and one who is destitute of all such support; condition, for it makes a great difference whether a man is illustrious or obscure, a magistrate or a private person, a father or a son, a citizen or a foreigner, free or a slave, married or a bachelor, the father of children or childless; 27. natural disposition, for avarice, passionateness, sensibility, cruelty, austerity, and other similar affections of the mind, frequently either cause credit to be given to an accusation or to be withheld from it; manner of living, for it is often a matter of inquiry whether a person is luxurious, or parsimonious, or mean; occupations, for a countryman, a lawyer, a trader, a soldier, a mariner, a physician, act in very different ways.
28. We must consider also what a person affects, whether he would wish to appear rich or eloquent, just or powerful. Previous doings and sayings, too, are to be taken into account; for the present is commonly estimated from the past. To these some add commotion of the mind, which they wish to be understood in the sense of a temporary excitement of the feelings, as anger, or fear; 29. and designs, which respect the present, past, and future, but these, though they are accidents of persons, should yet be referred, I think, as considered in themselves, to that species of argument which we derive from motives; as also certain dispositions of mind, in regard to which it is considered whether a particular person is a friend or an enemy of another person.
30. They specify also the name among the topics of argument in regard to a person; and the name must certainly be termed an accident of a person, but it is rarely the foundation of any reasoning, unless when it has been given for some cause, as Sapiens, Magnus, Plenus, or has suggested some thought to the bearer of it, as Lentulus's [see Sallust, Cat. 47; Orat. in Catil. iii 4] name led him to think of joining the conspiracy of Catiline, because dominion was said to be promised by the Sibylline books and the predictions of the soothsayers to three Cornelii, and he believed himself, as he was a Cornelius, to be the third after Sylla and Cinna. 31. As to the conceit of Euripides [Phoeniss. 639, 640], where the brother of Polynices reflects on his name, as an argument of his disposition, it is extremely poor. For jesting, however, occasion is frequently furnished by a name, and Cicero has more than once indulged in it in his pleadings against Verres. Such, and of such a nature, are the common subjects of argument with regard to persons. All I cannot enumerate, either under this head or under others, but content myself with showing the way to those who may inquire farther.
32. I now come to things, among which actions are most closely connected with persons, and must therefore be first considered. In regard, then, to everything that is done, the question is, either why, or where, or when, or in what manner, or by what means, it was done. 33. Arguments are consequently derived from the motives for actions done or to be done; the matter of which motives, which some of the Greek writers call υλη and others δυναμις, they divide into two kinds, subdividing each kind into four species; for the motive for any action is generally connected with the acquisition, the augmentation, the preservation, or the enjoyment, of some good, or the avoidance, diminution, endurance, of some evil, or delivery from it; considerations which have great weight in all our deliberations.
34. But right actions have such motives; wrong ones, on the contrary, proceed from false notions; for the origin of them is from the objects which men fancy to be good or evil; and hence arise errors of conduct, and corrupt passions, among which may be reckoned anger, envy, hatred, avarice, presumption, ambition, audacity, timidity, and other feelings of a similar nature. Sometimes fortuitous circumstances are added, as drunkenness, or mistake, which sometimes serve to excuse, and sometimes to give weight to a charge, as when a man is said to have killed one person while he was lying in wait for another. 35. Motives, moreover, are constantly investigated not only to establish, but to repel, accusations, as when an accused person maintains that he acted rightly, that is, from a laudable motive; on which point I have spoken more fully in the third book. 36. Questions of definition, too, sometimes depend upon motives, as whether he is a tyrannicide who killed a tyrant by whom he had been caught in adultery; and whether he is guilty of sacrilege who took down arms suspended in a temple to drive enemies out of his city.
37. Arguments are also drawn from places; for it often concerns the proof of a fact, whether the scene of it was mountainous or level, maritime or inland, planted or uncultivated, frequented or lonely, near or distant, suitable or unsuitable for the alleged purpose; considerations which Cicero treats with very great effect in his defense of Milo. 38. These and similar points most commonly relate to questions of fact, but sometimes also to questions of law, as whether a place be private or public, sacred or profane, our own or belonging to another, as we consider in regard to a person whether he be a magistrate, or a father, or a foreigner. 39. For hence questions arise; as, You have taken the money of a private individual, but, as you took it from a temple, your crime is not mere theft, but sacrilege.— You have killed an adulterer, an act which the law allows, but as you committed it in a brothel, it is murder.— You have done violence, but as you did it to a magistrate, an action for treason may be brought against you.
40. Or, on the other hand, a person may argue, I had a right to act in such a way, for I was a father, or I was a magistrate. But it is to be observed that arguments derived from place afford matter for dispute as to questions of fact as well as regarding points of law. Place, too, frequently affects the quality of an action; for the same act is not allowable or becoming in all places alike; and it is likewise of consequence before what people a question is tried; for every people has its peculiar customs and laws, 41. Place has also influence in commendation or disparagement; as Ajax says in Ovid [Metam. xiii. 5], Agimus ante rates causam, et mecum confertur Ulysses? "Do we plead our cause before the ships, and is Ulysses compared with me?" To Milo, too, it was made a subject of reproach, among other things, that Clodius had been killed by him amidst the monuments of his ancestors. 43. Place has influence, moreover, in deliberative oratory, as well as time, some remarks on which I shall subjoin.
Of time, as I have already observed in another place, there are two acceptations, since it is viewed either generally or specially. Generally, as when we say, now, formerly, in the time of Alexander, during the struggle at the siege of Troy; or whatever relates to the present, past, or future. Specially, when we speak of received divisions of time, as in the summer, in the winter, by day, by night, or of accidental occurrences at any particular period, as during a pestilence, in a war, at a banquet. 43. Some of our Latin authors have thought that sufficient distinction was made if they called time in general merely time, and special portions of it times.
To say nothing more on that point, regard to time in both senses is to be had both in deliberative and epideictic, but most frequently in judicial, pleading. 44. For it gives rise to questions of law [for instance, if a man surprises an adulterer, who escapes for the time, but is killed by him on a subsequent occasion], and determines the quality of actions, and has great influence in questions of fact, since it sometimes offers Irrefragable proofs, as if a person should be said (as I supposed above) to have signed a deed when he died before the date of it, or to have done something wrong when he was quite an infant or even not born. 45. Besides it is to be observed that arguments of all kinds are readily drawn either from circumstances that preceded the fact in question, or occurred at the same time with it, or happened after it: From previous circumstances, as, You threatened the deceased with death, you went out at night, you went before him on the road; and motives for deeds, too, relate to time past: 46. From contemporaneous circumstances, which some have distinguished more nicely than was necessary, dividing them into that which is combined with an act, as, A noise was heard, and that which is attached to an act, as A cry was raised: From subsequent circumstances, as, You concealed yourself; you fled; discolorations and swellings appeared on the body. The defendant also will direct his thoughts to the same divisions of time in order to discredit the charge that is brought against him.
47. In these considerations is included all that concerns deeds and words; but under two aspects; for some things are done because something else will follow; and others because something else was done before; as when it is alleged against a man accused of trafficking in women, that he bought a beautiful woman who had been found guilty of adultery; or against a rake accused of parricide that he had said to his father, You shall not reproach me any more; for the former is not a trafficker in women because he bought the woman, but he bought her because he was a trafficker in women; and the latter did not kill his father because he uttered those words, but uttered the words because he meditated killing his father.
48. As to fortuitous occurrences, which also afford ground for arguments, they doubtless belong to subsequent time, but are generally distinguished by some peculiarity in the persons whom they concern; as if I should say, Scipio was a better general than Hannibal; he defeated Hannibal.— He was a good pilot; he never suffered shipwreck.— He was a good husband-man; he raised large crops. Or, in reference to bad qualities, He was extravagant; he exhausted his patrimony.— He lived disgracefully; he was disliked by all.
49. We must also, especially in questions of fact, regard the means of which a party was possessed; for probability inclines us to suppose that a smaller number was killed by a larger, a weaker by a stronger, people asleep by people awake, the unsuspecting by the well prepared. Opposite states of things lead to opposite conclusions. 50. Such points we regard in deliberative speeches; and in judicial pleadings we keep them in view with reference to two considerations, whether a person had the inclination, and whether he had the power; for hope depending on power, often gives rise to inclination. Hence that conjecture in Cicero [Pro Mil. c. 10]: "Clodius lay in wait for Milo, not Milo for Clodius; Clodius was attended with a body of stout slaves, Milo with a party of women; Clodius was travelling on horseback, Milo in a carriage; Clodius was unencumbered, Milo enveloped in a cloak."
51. Under means, also, we may include instruments, for they form part of appliances and resources; and presumptive proofs, too, sometimes arise from instruments, as when a sharp weapon is found sticking in a dead body. 52. To all this is to be added manner, which the Greeks call τροπος, in reference to which the question is, How a thing was done? And it has relation both to the quality of an act and to the interpretation of writings, as if we should deny that it is lawful to kill an adulterer with poison, and say that he ought to have been killed with a sword. It may concern questions of fact also; as if I should say that a thing was done with a good intention, and therefore openly; or with a bad intention, and therefore insidiously, in the night, and in a lonely place.
53. But in regard to every matter, about the quality or nature of which there is any question, and which we contemplate independently of persons and all else that constitutes a cause, three points are doubtless to be considered, whether it is, what it is, and of what nature it is. But as certain topics of argument are common to all these, the three cannot be divided, and must accordingly be introduced under the heads under which they respectively happen to fall.
54. Arguments, then, are drawn from definition, (ex finitione seu fine, for both terms are in use,) of which there are two modes; for we either inquire simply whether such a thing is a virtue, or with a definition previously given, what virtue is. Such definition we either express in a general way, as, Rhetoric is the art of speaking well, or with an enumeration if particulars, as Rhetoric is the art of rightly conceiving, arranging, and expressing our thoughts, with an unfailing memory and with propriety of action. 55. We also define a thing either by its nature, as in the preceding example, or by reference to etymology, as when we derive the sense of assiduus from aes and do, that of locuples from copia locorum, or that of pecuniosus from copia pecorum.
To definitions seem especially to belong genus, species, difference, property. 56. From all these arguments are deduced. Genus can do little to establish species, but very much to set it aside; what is a tree, therefore, is not necessarily a plane tree, but what is not a tree, is certainly not a plane tree; nor can that which is not a virtue be justice; and therefore we must proceed from the genus to the ultimate species [Cicero Topic. c. 6]; as to say, Man is an animal, is not enough, for animal is the genus; and to say that he is mortal, though it expresses a species, is but a definition common to other animals; but if we say that he is rational, nothing will be wanting to signify what we wish. 57. On the contrary, species affords a strong proof of genus, but has little power to disprove it; for that which is justice is certainly a virtue, while that which is not justice may be a virtue, if it is fortitude, prudence, or temperance. A genus, therefore, will never be disproved by proving a species, unless all the species, which are included under that genus, be set aside, as That which is neither mortal nor immortal is not an animal.
58. To genus and species writers add properties and differences. By properties a definition is established; by differences it is overthrown. A property is that which either belongs only to one object, as speech and laughter to man, or belongs to it, but not to it alone, as heat is a property of fire. There may be also many properties of the same thing, as fire, for instance, shines as well as heats. Consequently, whatever property is omitted in a definition, will weaken it; but it is not every property introduced in it that will establish it. 59. It is very often a question, too, what is a property of something under consideration; for instance, if it be asserted, on the etymology of the word, "It constitutes a man a tyrannicide to kill a tyrant," we may deny it, for if an executioner should kill a tyrant delivered to him to be put to death, he would not be called a tyrannicide, nor would a man be called so that had killed a tyrant unawares or unwillingly.
60. But that which is not a peculiar property will be a difference; as it is one thing to be a slave and another to serve; whence there is this distinction with regard to addicti, or insolvent debtors sentenced to serve their creditors: He who is a slave, if he is set free, becomes a freedman; but this is not the case with an addictus; and there are other points of difference between them, of which I shall speak in another place. 61. They call that also a difference, by which, when the genus is distinguished into species, a species itself is particularized; as, Animal is the genus; mortal, a species, terrestrial or two-footed, a difference; for we have not yet come to property, though the animal is distinguished from the aquatic or the four-footed; but such distinction belongs, not so much to argument, as to exact expression of definition.
62. Cicero separates genus and species, which latter he calls form, from definition, and puts them under relation; as, for example, if a person to whom all the silver of another person has been bequeathed, should claim also the coined silver, he would found his claim upon genus; but if a person, when a legacy has been left to a woman who should have been a materfamilias to her husband, denies that it ought to be paid to her who never came into her husband's power, he reasons from species, because there are two sorts of marriages. [The two sorts of marriages were per coemptionem, when the woman was delivered into the hand and power of the man, and was then called materfamilias; the other was citra coemptionem, when the connection was formed by cohabitation. See Cic. pro Flacc. 34.]
C3. Cicero [Topic. c. 5, 7] also shows that definition is assisted by division, which he makes distinct from partition, partition being the distribution of a whole into its parts, division that of a genus into its forms or species. The number of parts, he says, is uncertain [of forms there is always a certain number, and to omit any one of them in a definition is a fault; but the number of parts is frequently infinite]; for instance, the parts of which a state consists; but that of forms, certain, as the number of forms of government, which we understand to be three, that in which the power is in the hands of the people, that in which it is in those of a few, and that in which it is in those of one. 64. He, indeed, does not use these examples, because, writing to Trebatius [III. 11, 18], he preferred taking his instances from law. I have given such, as I think, plainer.
Properties have reference also to questions dependent on conjecture [that, is, to the status termed conjecturalis by the rhetoricians; commonly called quaestio de facto]; for, as it is the property of a good man to act rightly, and of a passionate man to be violent in his language, it is supposed that he who acts rightly is a good man, and that he who is violent in his language is a passionate one; and such as act or speak otherwise are supposed to be of opposite characters; for when certain qualities are not in certain persons, the inference, though from opposite premises, is of a similar nature. [For example, as it is the part of a merciful man not to do wanton injury, I shall infer, if a man commits wanton injury, that he is not merciful.]
65. Division, in a similar way, serves to prove and to refute. For proof it is sometimes sufficient to establish one half; as in this example: A man, to be a citizen, must either have been born a citizen, or have been made one; but in refuting you must overthrow both particulars, and show that he was neither born nor made a citizen. 66. This mode of reasoning is manifold; and there is a form of argument by successive removals [Cicero, Inv. i. 29, calls it enumeration, several particulars being enumerated, and all overthrown except one, which is then considered as proved], by which a whole allegation is sometimes proved to be false, and sometimes a portion of it, which is left after successive removals, is shown to be true. A whole allegation is proved to be false in this manner: You say that you lent this money: Either then you had it of your own, or you received it from some one else, or you found it, or you stole it: If you neither had it of your own, nor received it from any one, nor etc., you did not lend it. 67. What is left is established as true in this way: This slave, whom you claim as your own, was either born in your house, or bought by you, or given to you, or left to you by will, or captured by you from the enemy, — or he belongs to another person: when it is shown that the suppositions are all unfounded, except the last, it will be clear that the slave belongs to another.
This kind of argumentation is dangerous, and must be conducted with great wariness, for if we omit one particular in the enumeration, our whole edifice will fall to the ground, to the amusement of our audience. 68. That mode is safer which Cicero uses in his speech for Caecina [C. 13], when he asks, If this is not the point in question, what is it? for thus all other points are set aside at once. That also is safer, in which two contrary propositions are advanced, of which it is sufficient for our purpose to establish either; as in this example from Cicero [Pro Cluent. c. 23]: There is certainly no one so unfavorable to Cluentius as not to grant me one thing: If it is certain that those judges were bribed, they must have been bribed either by Habitus or by Oppianicus; if I show that they were not bribed by Habitus, I prove that they were bribed by Oppianicus; if I make it appear that they were bribed by Oppianicus, I clear Habitus from suspicion.
69. Or liberty may be granted to our adversary to choose one of two propositions, of which one must necessarily be true, and, whichsoever he chooses, it may be proved to be adverse to his cause. This is a mode which Cicero adopts in pleading for Oppius [Marcus Aurelius Cotta, proconsul of Bithynia, had dismissed his quaesor Publius Oppius on suspicion of embezzling the public money and plotting against his life, of which he was afterwards accused, and defended by Cicero. See Dion. Cass. b. xxxvi. p. Reim. 100]: Whether was it when he was aiming at Cotta, or when he was attempting to kill himself, that the weapon was snatched from his hand? And in that for Varenus: The option is granted you, whether you would prefer to say that Varenus took that road by chance, or at the instigation and persuasion of the other; and he then shows that either supposition is equally adverse to the accuser.
70. Sometimes two propositions are stated of such a nature, that from either, if adopted, the same consequence follows: as in the common adage, We must philosophize, though we must not philosophize [a saying of Neoptolemus in a tragedy of Ennius, to that effect, is cited by Cicero de Orat. ii. 37]; or in the still more common question. To what purpose is a figure, if the subject is intelligible? to what purpose if it is not intelligible? and in this saying, He who can endure pain, will tell lies under torture; he who cannot endure pain will tell lies.
71. As there are three parts of time, so the order of things is comprised in three stages of progress; for everything has a beginning, an increase, and a completion; as first, for instance, there is a quarrel, then one man's blood is shed, then that of several. Here then is an origin for arguments supporting one another; for the end may be inferred from the beginning; as in the common saying, I cannot expect a toga praetexta when I see the commencement of the web black; or the beginning may be argued from the end; as the resignation of the dictatorship may be made an argument that Sylla did not take arms with the object of making himself a tyrant. 72. From the increase of a thing, in like manner, arguments may be drawn with regard both to its beginning and its end; and that not only in conjectures as to matters of fact, but in the consideration of points of law: as, Is the end referable to the beginning? that is, Ought the blood shed to be imputed to him with whom the quarrel began?
73. Arguments are also drawn from similarities: If continence be a virtue, abstinence is also a virtue; If a guardian ought to give security, so likewise should an agent. This argument is of the nature of that which the Greeks call επαγωγν, Cicero [Topic. c. 10; De Inv. i. 31] induction. From dissimilarities: If joy is a good, pleasure is not therefore necessarily a good: What is lawful in regard to a woman, is not also lawful in regard to a minor. [An example from Cicero, Topic. c. 11: "If you have contracted a debt to a woman, you can pay her without having recourse to a trustee; but what you owe to a minor you cannot pay in the same manner."] From contrarieties: Frugality is a good, for extravagance is an evil: If war is the cause of sufferings, peace will be the remedy of them: If he deserves pardon who has done an injury unawares, he does not merit reward who has done a service unawares. 74. From contradictions; He who is wise, is not a fool. From consequences or adjuncts: If justice is a good, we ought to judge with justice: If deceit is an evil, we must not deceive; and such propositions may be reversed.
Nor are the arguments that follow dissimilar to these; so that they may properly be ranged under the same head, to which, indeed, they naturally belong: What a man never had he has not lost: A person whom we love we shall not knowingly injure: For a person whom a man has resolved to make his heir, he has had, has, and will have, affection. But as such arguments are incontrovertible, they partake of the nature of necessary indications [signorum immutabilium]. 75. The latter sort, however, I call arguments from what is consequent, or what the Greeks call ακολουθον, as goodness is consequent upon wisdom; (what merely follows, that is, happens afterwards, or will be, I would distinguish by the Greek term παρεπομενον.)
But about names I am not anxious; every one may use what terms he pleases, provided that the character of the things themselves be understood, and that the one be regarded as dependent on time, and the other on the nature of things. 76. Accordingly, I do not hesitate to call the following forms of argument consequential, (though from what precedes in order of time they give an indication of what is to follow in order of time,) of which some have sought to make two kinds: the first regarding action, as exemplified in Cicero's speech for Oppius [Sect. 69]: Those whom he could not lead forth into the province against their will, how could he detain against their will? the other regarding time, as shown in this passage against Verres [Lib. i. c. 42]: If the Kalends of January put an end to the authority of the praetor's edict, why does not the commencement of its authority bear date from the Kalends of January? 77. Both these examples are of such a nature that if you reverse the propositions they lead to an opposite conclusion; for it is also a necessary consequence that they who could not have been retained against their will, could not have been led forth against their will.
78. Those arguments, too, which are drawn from particulars that mutually support each other, and which some rhetoricians wish to be deemed of a peculiar kind, (they call them εκ των προς αλληλα [Aristot. Rhet. ii. 23, 3], Cicero [De Inv. i. 20] terms them ex rebus sub eandem rationem venientibus,) I would rank with those of necessary consequence; as, If it is honorable for the Rhodians to let their customs, it is also honorable in Hermocreon to farm them; and, what it is proper to learn, it is also proper to teach. 79. Of which nature is the happy saying of Domitius Afer, not expressed in this manner, but having a similar effect: I accused, you condemned. [There is a similar expression in Ovid Metam. xiii. 308.] There is also a kind of argument from two propositions relatively consequent, and which proves the same thing from opposite statements; as, He who says that the world was produced, says also that it will come to an end; for everything which is produced comes to an end.
80. Similar to this is the kind of argument by which that which is done is inferred from that which does, or the contrary; which rhetoricians call an argument from causes. Sometimes the consequence necessarily happens, sometimes generally, though not necessarily. Thus a body, for example, casts a shadow in the light, and, wherever there is a shadow, it necessarily proves that there is a body. 81. Sometimes, as I said, the consequence is not necessary, whether with reference to the cause and the effect together, or to the cause or effect severally. Thus, The sun darkens the skin; but it does not necessarily follow that he whose skin is dark has been darkened by the sun. A road makes a man dusty: but it is not every road that throws up dust; nor does it follow that every man who is dusty has been on a road.
82. Arguments of necessary consequence both from cause and effect are such as these: If it is wisdom that makes a man good, a good man is necessarily wise; and so, It is the part of a good man to act uprightly, of a bad man to act dishonorably; and accordingly those who act uprightly are considered good, and those who act dishonorably, bad; and this is a just conclusion. But if we say that exercise generally makes the body strong, it will not follow that whoever is strong, has taken exercise, or that whoever has taken exercise, is strong; nor, because fortitude secures us from fearing death, will it follow that whoever does not fear death is to be thought a man of fortitude; nor if the sun gives men the head-ache, does it follow that the sun is not useful to men. 83. The following kind of argument belongs chiefly to the suasory department of oratory: Virtue confers glory, therefore it is to be followed; pleasure brings infamy, therefore it is to be avoided.
84. But we are judiciously admonished by writers on oratory that causes are not to be sought too far back; as Medea, for example, says in the play [Eurip. Med. v. 3], "Would that never in the grove of Pelion," as if "the felling of a fir-tree to the earth" there had had the effect of producing her misery or guilt; or as Philoctetes says to Paris [in the Philoctetes of Accius, as Philander supposes], "If you had controlled your passion, I should not now be miserable;" for, retracing causes in this way, we may arrive at any point whatever.
85. To these I should think it ridiculous to add what they call the conjugate argument, had not Cicero [Cic. Topic. 3. Aristot. Topic. ii. 3; Rhetor, i. 7, 27] introduced it. An example of it is, That they who do a just thing do justly, which certainly needs no proof, any more than Quod compascuum est, compascere licere, "On a common pasture it is common to every man to send his cattle to feed."
66. Some call those arguments, which I have specified as drawn from causes or efficients, by another name, εκζασεις, that is, issues, for nothing is indeed considered in them but how one thing results from another.
Arguments called apposite or comparative are such as prove the greater from the less, the less from the greater, or equals from equals. 87. A conjecture about a fact is supported by arguing from something greater: as, If a man commits sacrilege, he will also commit an ordinary theft; from something less, as, He who readily and boldly tells a lie, will commit perjury; from something equal, as, He who has taken a bribe to pronounce unjust judgment, will also take a bribe to bear false witness. 88. A question about a point of law is supported in a similar way: from something greater, as, If it is lawful to kill an adulterer, it is also lawful to scourge him; from something less, as, If it is lawful to kill a thief in the night, how much more is it lawful to kill an armed robber? from something equal, as, The punishment which is justly pronounced on him who has killed his father, it also justly pronounced on him who has killed his mother. All these arguments find a place in causes in which we proceed by syllogism.
89. The following forms are more suitable for questions dependent on definition or quality: If strength is good for bodies, health is not less so: If theft is a crime, much more it sacrilege: If abstinence is a virtue, so is continence: If the world is ruled by a providence, a state must be directed by a government: If a house cannot be built without a plan, what are we to think of the conduct of a fleet or an army? 90. To me it would be sufficient to notice this form merely as a genus, but it is divided by others into species; for arguments are deduced by them from several things to one, and from one to several, (as in the common remark, What happens once, may happen often,) from a part to the whole, from genus to species, from that which contains to that which is contained, from the more difficult to the more easy, from the more remote to the nearer, and from the opposites of all these to their opposites, 91. but such arguments are all of the same nature; for they are drawn from greater things and less, or from things of equal force; and, if we pursue such distinctions, there will he no end of particularization; for the comparison of things is infinite, and, if we enumerate every kind, we must specify things that are more pleasant, more agreeable, more necessary, more honorable, more useful. But let me abstain from speaking of more, lest I fall into that prolixity which I wish to avoid.
92. As to the examples of this kind of arguments, their number is incalculable; but I will notice only a very few. From the greater, in Cicero's speech for Caecina [C. 15]: Shall that which alarms armed troops be thought to have caused no alarm in a company of lawyers? From the easier, in his speech against Clodius and Curio: Consider whether you could so easily have been made praetor, when he, to whom you had given way, was not made praetor? 93. From the more difficult, in his speech for Ligarius [Cicero pro Ligar. c. 3]: Observe, I pray you, Tubero, that I, who do not hesitate to speak of my own act, speak boldly of that of Ligarius; and, in the same speech [C. 10], Has not Ligarius ground for hope, when liberty is granted me to intercede with you even for another? From the less, in his speech for Caecina [C. 16]: Is the knowledge that there were armed men a sufficient ground for you to prove that violence was committed, and is the fact of having fallen into their hands insufficient?
94. To sum up the whole in a few words, then, arguments are drawn from persons, causes, places, time, (of which we distinguished three parts, the preceding, the coincident, and the subsequent,) manner, (that is, how a thing has been done,) means, (under which we included instruments,) definition, genus, species, differences, peculiarities, removal, division, beginning, increase, completion, similarity, dissimilarity, contraries, consequences, causes, effects, issues, connection, comparison; each of which is divided into several species.
95. It seems necessary to be added that arguments are deduced not only from acknowledged facts, but from fictions or suppositions, or, as the Greeks say, καθ υποθεσιν: and this kind of arguments is found in all the same forms as the other kinds, because there may be as many species of fictitious as of true arguments. 96. By using fiction, I here mean advancing something, which, if it were true, would either solve a question, or assist to solve it, and then showing the resemblance of the point supposed to the point under consideration. That young men, who have not yet left the school, may understand this process the better, I will illustrate it by some examples more suitable to that age. 97. The law is, that he who does not maintain his parents is to be imprisoned; a man does not maintain his parents, and yet pleads that he ought not to go to prison; he will perhaps have recourse to supposition, if he were a soldier, if he were an infant, if he were absent from home on the public service.
And to oppose the option [to those who had displayed eminent bravery in the field permission was given to choose some reward] of a man distinguished for bravery, we might use the supposition, if he ask for supreme power, or for the overthrow of temples. 98. This is a form of argument of great force against the letter of a law. Cicero adopts it in his defense of Caecina [C. 19]: whence you, or your slaves, or your steward — if your steward alone had driven me out — but if you have not even a single slave but him who drove me out —; and there are several other examples in that speech. 99. But the same sort of fiction is of great use in considering the quality of an act [Pro Muraen. c. 39]: If Catiline, with the troop of villains that he took with him, could judge of this affair, he would condemn Lucius Muraena. It serves also for amplification: If this had happened to you at supper over those monstrous cups of yours [Cic. Philipp. ii. 25] — and, If the republic had a voice [Cic. Catilin. i. 7].
100. These are the common topics of proofs which we find specified, and which it is hardly satisfactory to mention under general heads, as a numberless multitude of arguments springs from each of them, nor, on the other hand, does the nature of things allow us to pursue them through all their species; a task which those who have attempted have incurred the double disadvantage of saying too much and of not saying all. 101. Hence most students of rhetoric, when they have fallen into these inexplicable labyrinths, have, as being fettered by the inflexible restrictions of rules, lost all power of action, even that which they ought to have from their own mind, and, keeping their eyes fixed on a master, have ceased to follow the guidance of nature.
102. But as it is not sufficient to know that all proofs are to be drawn from persons or from things, because each of these general heads branches out into an infinity of others, so he who shall have learned that arguments are to be deduced from preceding or coincident or subsequent circumstances, will not necessarily be qualified to judge what arguments proper for any particular cause are to be deduced from such circumstances; 103. especially as most proofs are taken from what is inherent in the nature of a cause, and have nothing in common with any other cause; and these proofs, while they are the strongest, are also the least obvious, because, though we learn from rules what is common to all causes, what is peculiar to any particular cause we have to discover for ourselves.
104. This kind of arguments we may well call arguments from circumstances, (as we cannot otherwise express the Greek word περιστασις,) or from those things which are proper to any individual cause. Thus in the case of the priest guilty of adultery [a case very similar to this is treated in the 284th of the Declamations attributed to Quintilian, of which the title is this: "Let a priest have the power of saving one person from capital punishment: let it be lawful to kill adulterers: a man surprises a priest in the commission of adultery, and, putting him to death, though he claimed his iife on the ground of the law, is accused of murder"], who, by virtue of the law by which he had the power of saving a life, wished to save his own life, the argument proper to the cause, in opposing him, would be, you would not save one criminal only, for, if you are released, it will not be lawful to kill the adulteress [Dig. xlviii. 5, 32]; for this argument the law supplies, which prohibits killing the adulteress without the adulterer.
106. Thus, too, in that controversy, in which the law is, that the bankers might pay the half of what they owed, but demand payment of the whole of what was due to them, and one banker requires the whole of his debt from another banker, the proper argument for the creditor, from the nature of the cause, is, "that it was expressly inserted in the law that a banker might demand the whole of a debt, for with regard to other people, there was no need of a law, as every one had the right of exacting a debt in full except from a banker." [In concluding thus the creditor makes an admission against himself, for, if a banker was not required to pay more than half his debts, he himself could not expect from his debtor more than half of what was owing to him.] 106. But many new considerations present themselves in every kind of subject, and especially in those cases which depend upon writing, because there is often ambiguity, not only in single words, but, still more, in words taken together.
107. These points for consideration must necessarily vary, from the complication of laws and other written documents produced to support or overthrow them, as one fact brings to light another, and one point of law leads to the consideration of another: as, I owed you no money; why? you never summoned me for a debt; you took no interest from me; you even borrowed money from me yourself. A law says, A son who does not defend his father when accused of treason is to be disinherited; a son denies that he is amenable to this law unless his father be acquitted; and what is his proof? Another law, which says that he who is found guilty of treason is to be sent into exile with his defender. 108. Cicero, in his speech for Cluentius, says that Publius Popilius and Tiberius Gutta were found guilty, not of having bribed the judges, but of having tried to bribe them. What is the proof? That their accusers, who were themselves found guilty of trying to bribe, were reinstated, according to law [whoever was convicted under any law, might, if he proved another person guilty under the same law, be reinstated in his former condition. See Dig. xlviii. 14], after having proved Popilius and Gutta guilty of the same offense.
109. But no less care ought to be taken as to what you advance, than as to the manner in which what you advance is to be proved. Here the power of invention, if not the greatest, is certainly the first requisite; for as arrows are useless to him who knows not at what he should aim, so arguments are useless to him who has not ascertained to what point they are to he applied. 110. This is what cannot be attained by art; and accordingly, though several orators, after having studied the same rules, will doubtless use arguments of a similar kind, yet some will devise more arguments for their purpose than others. Let the following cause, which involves questions by no means common with other causes, be given as an example. 111. When Alexander had demolished Thebes, he found a document in which it was stated that the Thebans had lent the Thessalians a hundred talents. Of this document Alexander made a present to the Thessalians, as he had had their assistance in the siege. But subsequently, when the Thebans were re-established by Cassander, they demanded payment of the money from the Thessalians.
The cause was pleaded before the Amphictyons. It was admitted that the Thebans had lent a hundred talents, and had not been repaid. 112. The whole controversy depends on this point, that Alexander is said to have made the present to the Thessalians. But it is admitted also that no money was given by Alexander to the Thessalians; and it is therefore a question whether that which was given was the same as if he had given them money. 113. Of what profit, then, will grounds of argument be, unless I first settle that the gift of Alexander was of no avail, that he could not give, and that he did not give. The commencement of the pleading on the part of the Thebans is at once easy and such as to conciliate favor, as they seek to recover as their right that which was taken from them by force; but then a sharp and vehement dispute arises about the rights of war, the Thessalians alleging that upon those rights depend kingdoms and people, and the boundaries of nations and cities.
114. We have therefore to discover, on the other side, how this cause differs from causes concerning other things that fall into the hands of a conqueror; and the difficulty in this respect lies not so much in the proof as in the proposition to be advanced. We may state in the first place, that, in regard to whatever can be brought before a court of justice the right of war can have no power; that things taken away by arms cannot be retained except by arms; that, consequently, where arms prevail, the judge has no power, and that when the judge has power, arms have none. 115. Such a statement is first to be made, that an argument, such for example as the following, may be brought to support it: That prisoners of war, if they effect a return into their country, are at once free, because what is taken by force of arms cannot be held except by force of arms. It is peculiar to the cause, also, that the Amphictyons are the judges in it. (For, concerning the same question, there is one mode of proceeding before the centumviri and another before a private judge [privati judices were appointed on arbitrations, and on many kinds of trials, by the praetor, being themselves almost all private individuals, and accustomed to have the assistance of lawyers in their proceedings, as Aquilius assisted in the cause of Quinctius in Cicero].)
116. On the second head, we may allege that the right [the right to withhold the payment of the money to the Thebans] to the money could not have been given by Alexander to the Thessalians, as right can belong only to him who holds it, and, being incorporeal, cannot be grasped in the hand. This is a proposition more difficult to conceive, than it is, when you have conceived it, to support it with arguments; such, for example, as the following: that the condition of an inheritor is different from that of a conqueror, because right passes to the one, and the mere property to the other. 117. It is also an argument peculiar to the cause itself that the right over what was owing to a whole people could not have passed into the hands of the conqueror, because what a whole people had lent, was due to them all, and as long as a single one of them survived, he was a creditor for the whole sum; and that all the Thebans had not fallen into the power of Alexander. 118. This argument, such is its force, is not upheld by external support, but sustains itself by itself.
On the third head the commencement of the argumentation will rest on the more obvious assertion that the right did not lie in the writing [though Alexander gave the Thessalians the document by which it appeared that they had borrowed a hundred talents from the Thebans, it did not follow that the Thessalians were thus freed from the obligation of payment], a proposition which may be supported by many confirmations. The intention of Alexander may also be brought into question, and it may be inquired whether he meant to oblige or to deceive the Thessalians. It is likewise an argument peculiar to the cause, and the commencement, as it were, of a new discussion, that the Thebans, even though it be admitted that they lost their right, must be thought to have recovered it by their re-establishment. Under this head may be inquired, too, what were the views of Cassander? But all pleading on behalf of equity had the highest influence with the Amphictyons.
119. I make these observations, not because I think that the knowledge of the general topics from which arguments are drawn is useless, (for if I had thought so, I should have given no precepts respecting them,) but that those who have studied them, may not think themselves, while they neglect other points, complete and consummate masters of their art; and may understand, that unless they acquire other accomplishments, on which I shall soon give instructions, they will have attained but dumb knowledge. 120. For the power of finding arguments was not a result of the publication of books on rhetoric; all kinds of arguments were conceived before any instruction was given respecting them; and writers afterwards published the forms of them when they were observed and collected.
It is a proof of this fact, that writers on rhetoric use old examples of argumentation, extracting them from the orators, and producing nothing new of their own, or anything that has not been said before. 121. The real authors of the art, therefore, are the orators; though certainly some thanks are due to those by whom our labor has been diminished; for the arguments which preceding orators have discovered, one after another, by the aid of their natural genius, it is not necessary for us to seek, and yet they are all accurately known to us. But this is not sufficient to make an orator, any more than to have studied in the palaestra is sufficient to make an athlete, unless the body be also strengthened by exercise, continence, food, and, above all, by constitutional vigor; while, on the other hand, all these advantages are of no avail without the assistance of art.
122. Let students of eloquence consider also, that every point to which I have called their attention is not to be found in every cause; and that, when a subject for discussion is brought before them, they need not search for every topic of argument, and knock as it were, at its door, to know whether it will answer, and serve to prove what they desire; they need not do this, I say, unless while they are still learners, and destitute of experience. 123. Such examination, indeed, would render the process of speaking infinitely slow, if it were always necessary to examine the several kinds of arguments, and ascertain, by trial, which of them is fit and proper for our purpose; and I know not whether all rules for argument would not be a hindrance to us, unless a certain penetration of mind, engendered in us by nature and exercised by study, conducted us straight to all the considerations suited to any particular cause.
124. For, as the accompaniment of a stringed instrument, when joined to the notes of the voice, is a great assistance to it, yet, if the hand of the player be slow, and hesitates to which string each note of the voice corresponds, until every string has been sounded and examined, it would be better for the singer to be content with what his unassisted power of voice enables him to accomplish. Thus, too, our system of study ought to be fitted and applied, as it were, after the manner of a stringed instrument, to rules of this nature; 125. but such an effect is not to be produced without great practice, in order that, as the hand of the musician, though he be attending to something else, is yet led by habit to produce grave, acute, or intermediate notes, so the variety and number of arguments in a case may not embarrass the judgment of the orator, but may present and offer themselves to his aid; and that, as letters and syllables require no meditation on the part of the writer, so reasons may follow the orator as of their own accord.
1. The third sort of proofs, which are introduced into causes from without, the Greeks call παραδειγματα: a term which they apply to all kinds of comparison of like with like, and especially to examples that rest on the authority of history. Our rhetoricians, for the most part, have preferred to give the name of comparison to that which the Greek calls παραζολη, and to render παραδειγμα by example. Example however partakes of comparison, and comparison of example. 2. For myself, that I may the better explain my object, let me include both under the word παραδειγμα, and translate it by example. Nor do I fear that in this respect I may be thought at variance with Cicero [De Inv. i. 30], though he distinguishes comparison from example; for he divides [De Inv. i. 31] all argumentation into two parts, induction [επαγωγη] and reasoning [συλλογισμος], as most of the Greeks [Aristot. Rhet. i. 2, 8] divide it into παραδειγματα and επιχειρηματα, and call the παραδειγμα rhetorical induction.
Indeed the mode of argument which Socrates chiefly used was of this nature; for when he had asked a number of questions, to which his adversary was obliged to reply in the affirmative, he at last inferred the point about which the question was raised, and to which his antagonist had already admitted something similar; this method was induction. This cannot be done in a regular speech; but what is asked in conversation is assumed in a speech. 4. Suppose that a question of this kind be put: What is the most noble fruit? Is it not that which is the best? This will at once be granted. And which is the most noble horse? Is it not that which is the best? This, and perhaps more questions to the same effect, will readily be admitted. Last of all will be asked the question with a view to which the others were put. And among men who is the most noble? Is it not he who is the best? and this may also be allowed. 5. This mode of interrogation is of great effect in questioning witnesses; but in a continuous speech there is a difference; for there the orator replies to himself: What fruit is the most noble? The best, I should suppose. What horse? That surely which is the swiftest. And thus he is the best of men, who excels most, not in nobleness of birth but in merit.
All arguments, therefore, of this kind, must either be from things similar, or dissimilar, or contrary. Similitudes are sometimes sought, merely for the embellishment of speech; but I will speak on that subject when the progress of my work requires me to do so; at present I am to pursue what relates to proof. 6. Of all descriptions of proof the most efficacious is that which we properly term example; that is, the adducing of some historical fact, or supposed fact, intended to convince the hearer of that which we desire to impress upon him. We must consider, therefore, whether such fact is completely similar to what we wish to illustrate, or only partly so; that we may either adopt the whole of it, or only such portion of it as may serve our purpose.
It is a similitude when we say, Saturninus was justly killed, as were the Gracchi. 7. A dissimilitude, when we say, Brutus put his children to death for forming traitorous designs on their country; Manlius punished the valor of his son with death. A contrariety, when we say, Marcellus restored the ornaments of their city to the Syracusans, who were our enemies; Verres took away like ornaments from our allies [Cicero in Verr. iv. 55]. Proof in eulogy and censure [that is, in the epideictic or demonstrative department of oratory] has the same three varieties. 8. In regard also to matters of which we may speak as likely to happen [that is, in the deliberative department of oratory], exhortation drawn from similar occurrences is of great effect; as if a person, for example, on remarking that Dionysius requested guards for his person, in order that, with the aid of their arms, he might make himself tyrant, should support his remark with the example that Pisistratus secured absolute power in the same manner.
9. But, as some examples are wholly similar, such as the last which I gave, so there are others by which an argument for the less is drawn from the greater, or an argument for the greater from the less. For the violation of the marriage-bed cities have been destroyed [an allusion to the Trojan war]; what punishment is proper to be inflicted on an adulterer?— Flute-players, when they have retired from the city [Livy, ix. 80: "The fluteplayera, being prohibited by the preceding censors from having their maintenance, according to ancient usage, in the temple of Jupiter, withdrew, in a body, from discontent, to Tibur; so that there was nobody in the city to supply music at the sacrifices. The senate, actuated by religious feelings, sent deputies to Tibur to use their efforts to effect the return of those men," &c.], have been publicly recalled; and how much more ought eminent men of the city, who have deserved well of their country, and who have withdrawn from popular odium, to be brought back from exile? [applicable to the recall of Cicero].
10. But unequal comparisons are of most effect in exhortation. Courage is more deserving of admiration in a woman than in a man; and, therefore, if a person is to be excited to a deed of valor, the examples of Horatius and Torquatus will not have so much influence over him as that of the woman by whose hand Pyrrhus was killed; and, to nerve a man to die, the deaths of Cato and Scipio will not be so efficient as that of Lucretia; though these are arguments from the greater to the less.
11. Let me then set before my reader examples of each of these kinds, extracted from Cicero; for from whom can I adduce better? An example of the similar is the following from the speech for Muraena [C. 8]; For it happened to myself, that I stood candidate with two patricians, the one the most abandoned, and the other the most virtuous and excellent of mankind; yet in dignity I was superior to Catiline, and in influence to Galba. 12. An argument from the greater to the less is found in the speech for Milo [C. 3]: They deny that it is lawful for him, who confesses that he has killed a human being, to behold the light of day; but in what city is it, I ask, that these most foolish of men thus argue? In that city assuredly, which saw the first trial in it for a capital offence in the case of the brave Horatius, who, though the state was not then made free, was nevertheless acquitted in a public assembly of the Roman people, even though he confessed that he had killed his sister with his own hand.
Another from the less to the greater is found in the same speech [C. 27]: I killed, not Spurius Maelius, who, because, by lowering the price of corn, and by lavishing his patrimony, he appeared to court the populace too much, incurred the suspicion of aspiring to royalty, &c., but him, (for Milo would dare to avow the act when he had freed his country from peril,) whose shameless licentiousness was carried even to the couches of the gods, &c., with the whole of the invective against Clodius.
13. Arguments from dissimilar things have many sources; for they depend on kind, manner, time, place, and other circumstances, by the aid of which Cicero [Pro Cluent. 32-52] overthrows nearly all the previous judgments that appeared to have been formed against Cluentius, while, by an example of contrast, he attacks [Pro Cluent. c. 48] at the same time the animadversion of the censors, extolling the conduct of Scipio Africanus who, when censor, had allowed a knight, whom he had publicly pronounced to have formally committed perjury, to retain his horse ["to pass his horse." On the ides of July the Roman knights passed in review before the censors, who deprived of their horses such of them as they deemed unworthy of being retained in the equestrian order], because no one appeared to accuse him, though he himself offered to bear witness to his guilt if any one thought proper to deny it.
These examples I do not cite in the words of Cicero only because they are too long. 14. But there is a short example of contrast in Virgil [Aen. ii. 539].
At non ille, satum quo te mentiris, Achilles,
16. Instances taken from history we may sometimes relate in full; as Cicero in his speech for Milo [C. 4]. When a military tribune, in the army of Caius Marius, and a relative of that general, offered dishonorable treatment to a soldier, he was killed by the soldier whom he had thus insulted; for, being a youth of proper feeling, he chose rather to risk his life than to suffer dishonor; and that eminent commander accounted him blameless, and inflicted no punishment on him. 16. To other instances it will be sufficient to allude, as Cicero in the same speech [C. 3]: For neither could Servilius Ahala, or Publius Nasica, or Lucius Opimius, or the senate during my consulship, have been considered otherwise than criminal, if it be unlawful for wicked men to be put to death. Such examples will be introduced at greater or less length, according as they are more or less known, or as the interest or embellishment of the subject may require.
17. The same is the case with regard to examples taken from fictions of the poets, except that less weight will be attributed to them. How we ought to treat them, the same excellent author and master of eloquence instructs us; 18. for an example of this kind also will be found in the speech already cited: Learned men, therefore, judges, have not without reason preserved the tradition, in fictitious narratives, that he who had killed his mother for the sake of avenging his father, was acquitted, when the opinions of men were divided, by the voice not only of a divinity, but of the divinity of Wisdom herself. 19. Those moral fables, too, which, though they were not the invention of Aesop [Plutarch, Conviv. Sept. Sap., expresses himself of the same opinion], (for Hesiod appears to have been the original inventor of them,) are most frequently mentioned under the name of Aesop, are adapted to attract the minds, especially of rustic and illiterate people, who listen less suspiciously than others to fictions, and, charmed by the pleasure which they find in them, put faith in that which delights them.
20. Thus, Menenius Agrippa is said to have reconciled the people to the senators by that well-known fable about the members of the human body revolting against the belly [Livy, ii. 32]; and Horace, even in a regular poem, has not thought the use of this kind of fable to be disdained; as in the verses [Hor. Ep. i. 1, 73],
Quod dixit vulpes agroto cauta Ieoni, &c.
To the sick lion what the wily fox
The Greeks called this kind of composition, αινος [equivalent to μυθος, a "tale" or "story;" see Odyas. xiv. 508, with the note of Eustathius. Hesiod, Op. et. Di. 200, calls the fable of the hawk and nightingale αινος. See also Aesch. Ag. 1482; Soph. Phil. 1380], αισωπειος λογος, as I remarked, and λιζυκος [Fabric. Bibl. Gr. ubi supra]; some of our writers have given it the turn apologatio, or "apologue," which has not been received into general use. 21. Similar to this is that sort of παροιμια, which is, as it were, a shorter fable, and is understood allegorically: as a person may say, Non nostrum onus; bos elitellas: "The burden is not mine; the ox, as they say, is carrying the panniers." [Cicero Ep. ad Att. v. 15.]
22. Next to example, comparison is of the greatest effect, especially that which is made between things nearly equal, without any mixture of metaphor: As those who have been accustomed to receive money in the Campus Martins, are generally most adverse to those candidates whose money they suppose to be withheld, so judges of a similar disposition came to the tribunal with a hostile feeling towards the defendant. 23. Παραζολη, which Cicero [De Inv. i. 30] calls comparison, frequently brings things less obvious into assimilation. Nor is it only like proceedings of men that are compared by this figure, (as in the comparison which Cicero makes in his speech for Muraena [C. 2], If those who have already come off the sea into harbor, are accustomed to warn, with the greatest solicitude, those who are setting sail from the harbor, in regard to storms, and pirates and coasts, because nature inspires us with kindly feelings towards those who are entering on the same dangers through which we have passed, how, let me ask you, must I, who just see land after long tossing on the waves, feel affected towards him by whom I see that the greatest tempests must be encountered?) but similitudes of this kind are also taken from dumb animals, and even from inanimate objects.
24. Since, too, the appearance of like objects is different in different aspects, I ought to admonish the learner, that that species of comparison which the Greeks call εικων, and by which the very image of things or persons is represented, (as Cassius [of Parma] says, for instance, Who is that making such grimaces, like those of an old man with his feet wrapped in wool?) is more rare in oratory than that by which what we enforce is rendered more credible; as, if you should say that the mind ought to be cultivated, you would compare it with land, which, if neglected, produces briars and thorns, but, when tilled, supplies us with fruit; or, if you would exhort men to engage in the service of the state, you would show that even bees and ants, animals not only mute but extremely diminutive, labor nevertheless in common.
25. Of this kind is the following comparison of Cicero [Pro Cluent. c. 53]: As our bodies can make no use of their several parts, the nerves, or the blood, or the limbs, without the aid of a mind, so is a state powerless without laws. But as he borrows this comparison from the human body in his speech for Cluentius, so, in that for Cornelius [see iv. 4, 8], he adopts one from horses, and in that for Archias [C. 8] one from stones. 26. Such as the following are, as I said, more ready to present themselves: As rowers are inefficient without a steersman, so are soldiers without a general.
But the appearance of similitude is apt to mislead us, and judgment is accordingly to be employed in the use of it; for we must not say that as a new ship is more serviceable than an old one, so it is with friendship; nor that, as the woman is to be commended who is liberal of her money to many, so she is to be commended who is liberal of her beauty to many. The allusions to age and liberality have a similarity in these examples; but it is one thing to be liberal of money, and another to be reckless of chastity.
27. We must therefore consider, above all things, in this kind of illustration, whether what we apply is a proper comparison; just as in the Socratic mode of questioning, of which I spoke a little above, we must take care that we do not answer rashly; as Xenophon's wife, in the Dialogues of Aeschines Socraticus, makes inconsiderate replies to Aspasia; 28. a passage which Cicero [De Inv. i. 31. The passage was part of a dialogue in Aeschines Socraticus, entitled Aspasia, which is now lost] translates thus: Tell me, I pray you, wife of Xenophon, if your female neighbor had better gold than you have, would you prefer hers or your own? Hers, replied she. And if she had dress and other ornaments suited to women, of more value than those which you have, would you prefer your own or hers? Hers, assuredly, said she. Tell me then, added Aspasia, if she had a better husband than you have, whether would you prefer your husband or hers?
29. At this question the woman blushed; and not without reason; for she had answered incautiously at first, in saying that she would rather have her neighbor's gold than her own; as covetousness is unjustifiable. But if she had answered that she would prefer her own gold to be like the better gold of her neighbor, she might then have answered, consistently with modesty, that she would prefer her husband to be like the better husband of her neighbor.
30. I know that some writers have, with useless diligence, distinguished comparison into several almost imperceptibly different kinds, and have said that there is a minor similitude, as that of an ape to a man, or that of imperfectly formed statues to their originals; and a greater similitude, as an egg, we say, is not so like an egg, as &c.; and that there is also similitude in things unlike, as in an ant and an elephant in genus, both being animals, and dissimilitude in things that are like, as whelps are unlike to dogs and kids to goats, for they differ in age. 31. They say, too, that there are different kinds of contraries: such as an opposite, as night to day; such as are hurtful, as cold water to fever; such as are repugnant, as truth to falsehood; such as are negatively opposed, as hard things to those which are not hard. But I do not see that such distinctions have any great concern with my present subject.
32. It is more to our purpose to observe, that arguments are drawn from similar, opposite, and dissimilar points of law. From similar, as Cicero shows, in his Topics [C. 3], that the heir, to whom the possession of a house for his life has been bequeathed, will not rebuild it if it falls down, because he would not replace a slave if he should die. From opposite points, as, There is no reason why there should not be a valid marriage between parties who unite with mutual consent, even if no contract has been signed; for it would be to no purpose that a contract had been signed, if it should be proved that there was no consent to the marriage. 33. From dissimilar points, as in the speech of Cicero for Caecina [C. 12]; Since, if any one had compelled me to quit my house by force, I should have ground for an action against him, shall I have no ground for action if a man prevents me by force from entering it? Dissimilar points may be thus stated: If a man who has bequeathed another all his silver may be considered to have left him all his coined silver, it is not on that account to be supposed that he intended all that was on his books to be given to him.
34. Some have separated analogy from similitude; I consider it comprehended in similitude. For when we say, As one is to ten, so are ten to a hundred, there is a similitude, as much as there is when we say, As is an enemy, so is a bad citizen. But arguments from similitude are carried still further; as, If a connection with a male slave is disgraceful to a mistress, a connection with a female slave is disgraceful to a master. If pleasure is the chief object of brutes, it may also be that of men. 35. But an argument from what is dissimilar in the cases very easily meets such propositions: It is not the same thing for a master to form a connection with a female slave as for a mistress to form one with a male slave; or from what is contrary: Because it is the chief object of brutes, it should for that very reason not be the chief object of rational beings.
36. Among external supports for a cause, are also to be numbered authorities. Those who follow the Greeks, by whom they are termed κρισεις, call them judicia or judicationes, "judgments" or "adjudications," not on matters on which a judicial sentence has been pronounced, (for such matters must be considered as precedents,) but on whatever can be adduced as expressing the opinions of nations or people, or of wise men, eminent political characters, or illustrious poets. 37. Nor will even common sayings, established by popular belief, be without their use in this way; for they are a kind of testimonies, and are so much the stronger, as they are not invented to serve particular cases, but have been said and confirmed by minds free from hatred or partiality, merely because they appeared most agreeable to virtue and truth.
38. If I speak of the calamities of life, will not the opinion of those nations [as the Trausi in Thrace, Herod, v. 4, and the Essedones, Pomp. Mel. ii. 1] support me, who witness births with tears, and deaths with joy? Or if I recommend mercy to a judge, will it not support my application to observe that the eminently wise nation of the Athenians regarded mercy not as a mere affection of the mind, but as a deity? [There was a well-known altar to Ελεος, Mercy or Pity, in the forum at Athens; see Apollod. Bibl. ii. 8] 39. As for the precepts of the seven wise men, do we not consider them as so many rules of life? If an adulteress is accused of poisoning, does she not seem already condemned by the sentence of Cato, who said that every adulteress was also ready to become a poisoner? With maxims from the poets, not only the compositions of orators are filled, but the books also of philosophers who, though they think everything else inferior to their own teaching and writings, have yet not disdained to seek authority from great numbers of verses.
40. Nor is it a mean example of the influence of poetry, that when the Megareans and Athenians contended for the possession of the isle of Salamis, the Megareans were overcome by the Athenians on the authority of a verse of Homer [Il. ii. 558. See Arist. Rhet. i. 15, 13; and Strabo p. 394. Plutarch, in his Life of Solon, says that there was a report that Solon forged the verse] (which, however, is not found in every edition,) signifying that Ajax united his ships with those of the Athenians. 41. Sayings, too, which have been generally received, become as it were common property, for the very reason that they have no certain author; such as Where there are friends, there is wealth; Conscience is instead of a thousand witnesses; and, as Cicero [De Sonectute, c. 3] has it, Like people, as it is in the old proverb, generally join themselves with like. Such sayings, indeed, would not have endured from time immemorial, had they not been thought true by everybody.
43. By some writers, the authority of the gods, as given in oracles, is specified under this head, and placed, indeed, in the first rank; for instance, the oracle that Socrates was the wisest of men. To this an allusion is rarely made, though Cicero appeals to it in his speech De Aruspicum responsis, and in his oration against Catiline [III. 8, 9], when he points the attention of the people to the statue of Jupiter placed upon the column, and in pleading for Ligarius [C. 6], when he allows that the cause of Caesar is the better as the gods have given judgment to that effect. Such attestations, when they are peculiarly inherent in the cause, are called divine testimonies; when they are adduced from without, arguments. 43. Sometimes, too, we may have an opportunity of availing ourselves of a saying or act of the judge, or of our adversary, or of the advocate that pleads against us, to support the credit of what we assert.
Hence there have been some that have placed examples and authorities in the number of inartificial proofs, as the orator does not invent them, but merely adopts them. 44. But there is a great difference; for witnesses, and examinations, and like matters, decide on the subject that is before the judges; while arguments from without, unless they are made of avail, by the ingenuity of the pleader, to support his allegations, have no force.
1. Such are the notions, for the most part, which I have hitherto held concerning proof, either as conveyed to me by others, or as gathered from my own experience. I have not the presumption to intimate that what I have said on the subject is all that can be said; on the contrary, I exhort the student to search after me, and allow the possibility of more being discovered; but whatever is added, will be pretty much the same with what I have stated. I will now subjoin a few remarks on the mode in which we must make use of proofs.
2. It is generally laid down as a principle that a proof must be something certain, for how can what is doubtful be proved by what is doubtful? Yet some things, which we allege in proof of something else, require proof themselves. You killed your husband, for you were an adulteress. Here we must bring proof as to the adultery, that, when that point appears to be established, it may become a proof of the other which is doubtful. Your weapon was found in the body of the murdered man; the accused denies that the weapon is his; and we must establish this circumstance in order to prove the charge.
3. But it is one of the admonitions necessary to be given here, that no proofs are stronger than those which have been shown to be certain after having appeared to be doubtful. You committed the murder, for you had your apparel stained with blood. Here the allegation that his apparel was stained with blood is not so strong an argument against the accused if he admits it, as if he denies it and it is proved; for if he admits it, his apparel may have been stained with blood from many causes, but if he denies it, he hinges his cause on that very point, and, if he is convicted on that point, he can make no stand on anything that follows; since it will be thought that he would not have had recourse to falsehood to deny the fact, if he had not despaired of justifying himself if he admitted it.
4. We must insist on the strongest of our arguments singly; the weaker must be advanced in a body; for the former kind, which are strong in themselves, we must not obscure by surrounding matter, but take care that they may appear exactly as they are; the other sort, which are naturally weak, will support themselves by mutual aid; and, therefore, if they cannot prevail from being strong, they will prevail from being numerous, as the object of all is to establish the same point. 5. Thus, if any person should accuse another of having killed a man for the sake of his property, and should say, You expected to succeed to the inheritance, and a large Inheritance it was; you were poor, and were greatly harassed by your creditors; and you had offended him to whom you were heir, and knew that he intended to alter his will; the allegations, considered separately, have little weight and nothing peculiar, but, brought forward in a body, they produce a damaging effect, if not with the force of a thunderbolt, at least with that of a shower of hail.
6. Some arguments it is not sufficient merely to advance; they must be supported; as, if you say that covetousness was the cause of a crime, you must show how great the influence of covetousness is; or if you say anger, you must observe how much power that passion has over the minds of men; thus the arguments will be both stronger in themselves, and will appear with more grace, from not presenting, as it were, their limbs unapparelled or denuded of flesh. 7. If, again, we rest a charge upon a motive of hatred, it will be of importance to show whether it arose from envy, or from injury, or from ambition; whether it was old or recent; whether it was entertained towards an inferior, an equal, or a superior, a stranger or a relative; for all such circumstances require peculiar consideration, and must be turned to the advantage of the side which we defend.
8. Yet we must not load a judge with all the arguments that we can invent; for such an accumulation would both tire his patience and excite his mistrust, since he can hardly suppose those proofs sufficiently valid, which we ourselves, who offer them, seem to regard as unsatisfactory. On the other hand, to argue in support of a matter that is clear, is as foolish as to bring a common taper into the brightest sunshine.
9. To these kinds of proof some add those which they call pathetic, παθητικας, drawn from the feelings; and Aristotle, indeed, thinks that the most powerful argument on the part of him who speaks is that he be a good man; and as this will have the best effect, so to seem good ranks next to it, though far below it 10. Hence that noble defense of Scaurus [Val. Max. iii. 7, 8]: Quintus Varius of Sucro says that Aemilius Scaurus has betrayed the interests of the people of Rome; Aemilius Scaurus denies it. Iphicrates, too, is said to have justified himself in a similar manner [Aristot. Rhet. ii. 23, 7]; for having asked Aristophon, by whom, as accuser, he was charged with a like offense, whether he would betray his country on receiving a sum of money, and Aristophon having replied that he would not, Have I, then, rejoined Iphicrates, done what you would not do? 11. But we must consider what is the character of the judge before whom we plead, and ascertain what is likely to appear most probable to him; a point on which I have spoken both in my directions regarding the exordium, and on those regarding deliberative oratory.
12. There is another mode of proof in asseveration: I did this: You told me this: O horrible deed! and the like. Such affirmations ought not to be wanting in any pleading, and, if they are wanting, their absence has a very ill effect. They are not to be accounted, however, as great supports, because they may be made on either side, in the same cause, with equal positiveness. 13. Those proofs are stronger which are drawn from the character of a person, and have some credible reason to support them: as, It is not likely that a wounded man, or one whose son has been murdered, would mean to accuse any other than the guilty person; since, if he makes a charge against an innocent person, he would let the guilty escape punishment. It is from such reasoning that fathers seek support when they accuse their sons [alleging that they would not bring them to judgment unless they felt compelled]; or others, whoever they may be, that accuse their own relatives.
14. It is also inquired, whether the strongest arguments should be placed in front, that they may take forcible possession of the judge's mind, or in the rear, that they may leave an impression upon it, or partly in front and partly in the rear, so that, according to Homer's arrangement [Iliad, iv. 299. See Cic. de Orat. ii. 77], the weakest may be in the middle; or whether they should be in a progressive order, commencing with the weakest. But the disposition of the arguments must be such as the nature of the cause requires; a rule, as I think, with only one exception, that our series must not descend from the strongest to the weakest.
15. Contenting myself with giving these brief intimations respecting arguments, I have offered them in such a way as to show, with as much clearness as I could, the topics and heads from which they are derived. Some writers have descanted on them more diffusely, having thought proper to speak of the whole subject of common places, and to show in what manner every particular topic may be treated. 16. But to me such detail appeared superfluous; for it occurs almost to every person what is to be said against envy, or avarice, or a malicious witness, or powerful friends, and to speak on all such subjects would be an endless task, as much as if I should undertake to enumerate all the questions, arguments, and opinions in all cases now depending, or that will ever arise. 17. I have not the confidence to suppose that I have pointed out all the sources of argument, but I consider that I have specified the greater number.
Such specification required the greater care, as the declamations, in which we used to exercise ourselves, as military men with foils, [velut praepilatis, sc. hastis. Salmasius de Cruce, pag. 301, proves that praepilatae hastae were spears with soft balls fixed on the point to prevent them from inflicting a wound] for the battles of the forum, have for some time past departed from the true resemblance of pleading, and being composed merely to please, are destitute of vigor, there being the same evil practice among declaimers, assuredly, as that which slave-dealers adopt, when they try to add to the beauty of young fellows by depriving them of their virility. 18. For as slave-dealers regard strength and muscles, and more especially the beard and other distinctions which nature has appropriated to males, as at variance with grace, and soften down, as being harsh, whatever would be strong if it were allowed its full growth, so we cover the manly form of eloquence, and the ability of speaking closely and forcibly, with a certain delicate texture of language, and, if our words be but smooth and elegant, think it of little consequence what vigor they have.
19. But to me, who look to nature, any man, with the full appearance of virility, will be more pleasing than a eunuch; nor will divine providence ever be so unfavorable to its own work as to ordain that weakness be numbered among its excellences; nor shall I think that an animal is made beautiful by the knife, which would have been a monster if it had been born in the state to which the knife has reduced it. Let a deceitful resemblance to the female sex serve the purposes of licentiousness if it will, but licentiousness will never attain such power as to render that, which it has rendered valuable for its own purposes, also honorable. 20. Such effeminate eloquence, therefore, however audiences, overcome with pleasure, may applaud it, I (for I shall speak what I think) shall never consider worthy of the name of eloquence, language which bears in it not the least indication of manliness or purity, to say nothing of gravity or sanctity, in the speaker.
21. When the most eminent sculptors and painters, if they sought to represent the highest personal beauty in stone or on canvas, never fell into the error of taking a Bagoas or Megabyzus for their model, but choose a young Doryphorus [alluding to the statue of Polycletus, Plin. H. N. xxxiv. 8. See also Cic. Brut. c. 86; Orat. c. 2], fitted alike for war or the palaestra, and consider the persons of other warlike youths and athletes truly graceful, shall I, who study to form a perfect orator, give him, not the arms, but the tinkling cymbals, of eloquence? 22. Let the youth whom I am instructing, therefore, devote himself, as much as he can, to the imitation of truth, and, as he is to engage in frequent contests in the forum, let him aspire to victory in the schools, and learn to strike at the vital parts of his adversary and to protect his own.
Let the preceptor exact such manly exercise above all things, and bestow the highest commendation on it when it is displayed; for though youth are enticed by praise to what is faulty, they nevertheless rejoice at being commended for what is right. 23. At present, there is this evil among teachers, that they pass over necessary points in silence, and the useful is not numbered among the requisites of eloquence. But these matters have been considered by me in another work [perhaps the treatise de Causis Corruptae Eloquentiae, which is lost], and must frequently be noticed in this. I now return to my prescribed course.
1. Refutation may be understood in two senses; for the part of the defender consists wholly in refutation; and whatever is said by either party in opposition to the other, requires to be refuted. It is properly in the latter sense that the fourth place [there are five parts in a cause, or judicial pleading, the exordium, the statement of facts, the confirmation, the refutation, and the peroration] is assigned to it in judicial pleadings. But the manner of conducting both is similar; for the principles of argument in refutation can be drawn from no other sources than those used in affirmation; nor is the nature of the common places, or thoughts, or words, or figures, at all different. 2. It has, in general, little to do with moving the passions.
It is not without reason, however, that it is thought more difficult (as Cicero often testifies) to defend than to accuse. In the first place, accusation is more simple, for a charge may be brought in one way, but may be overthrown in many; and it is sufficient for the accuser, in general, that what he advances appear true; while the defendant has to deny, to justify, to take exceptions, to excuse, to deprecate, to soften, to extenuate, to avert, to affect contempt, to ridicule; and accordingly, on the accuser's side, the pleading is for the most part straight-forward and, so to speak, open-mouthed; while on that of the defendant a thousand turns and artifices are required.
3. The accuser, too, generally sets forth what he has previously meditated at leisure; the defendant has frequently to oppose what is entirely unexpected. The accuser produces his witnesses; the defendant has to refute him by arguments drawn from the cause itself. The accuser finds matter for his speech in the odiousness of the charges, even though they are false, as parricide, for instance, or sacrilege, or treachery to the state; which the defendant can only deny. Hence even moderate speakers have succeeded in accusations; while none but the most eloquent have proved able defenders; for, to dispatch what I mean in a word, it is as much more easy to accuse than to defend, as it is to make wounds than to cure them.
4. It is a point of great importance to consider what the opposite party has said, and in what manner. We must first of ail examine, therefore, whether that which we have to answer belongs properly to the cause, or has been introduced into it extrinsically; for if it be inherent in the cause, we must either deny it, or justify it, or prove that the action is illegally brought; besides these there is scarcely any means of defense in any kind of trial. 5. Deprecation, at least such as is without appearance of defense, is extremely rare, and before such judges only as are confined to no certain form of decision; and even those pleadings [as Cicero for Ligarius] before Caius Caesar and the Triumviri, in behalf of men of the opposite party, though they depend chiefly on entreaty, yet mingle with it some defensive arguments; for it is surely the expression of a bold defender to exclaim [Pro Ligar. c. 4], What object have we had in view, Tubero, but that we might have the power which Caesar now has?
6. But if on any occasion, in pleading for another before a sovereign prince, or any other personage who may condemn or acquit at his pleasure, we have to say that he whose cause we undertake is worthy indeed of death, but of such a character that his life may be spared by a merciful judge, we must consider, first of all, that we shall not have to do with an adversary, but with an arbitrator, and, in the next, that we shall have to adopt the style of deliberative rather than of judicial oratory; for we shall have to counsel him to prefer the praise of humanity to the pleasure of vengeance. 7. As for pleadings before judges that must give sentence according to law, it would be ridiculous to offer precepts in regard to those who confess their guilt. Charges, therefore, which cannot be denied, or set aside by taking exceptions on a point of law, must be justified, whatever be their nature, or we must abandon our cause.
Of negation I have specified two forms; that the matter in question did not happen, or that what did happen is not the matter in question. What cannot be justified, or set aside on a point of law, must necessarily be denied, not only if a definition of it may prove in our favor, but even if nothing but simple denial is left to us. 8. If witnesses be produced, we may say much against them; if writings, we may descant on the resemblance of hands. Certainly nothing can be worse than confession. When there is no ground either for justification or denial, the last resource for maintaining our cause is legal exception. 9. But, it may be said, there are some charges which can neither be denied nor justified, and to which no legal exception can be taken.
A woman is accused, for instance, of adultery, who, after being a widow a year, had a child; here there can be no case for the judge. It is, therefore, most foolishly directed that what cannot be justified should be pretended to be forgotten and passed in silence, for that is the point on which the judge has to pronounce. 10. But if what the accuser alleges be foreign to the cause, or merely accessory to it, I should prefer to say in the defense that it has nothing to do with the question, that it is needless to dwell upon it, and that it is of less importance than our adversary represents it; or I might, indeed, in such a case, pardon the pretense of forgetfulness to which I just now alluded; for a good advocate ought not to fear a slight censure for negligence if he can thus save his client.
11. We must consider also whether we ought to attack the charges of an accuser in a body, or overthrow them one by one. We may assail a number at once, if they are either so weak that they may be borne down in a mass, or so annoying that it is not expedient to engage them in detail; for we must then struggle with our whole force, and, if I may be allowed the expression, must fight with the enemy front to front. 12. Sometimes, if it be difficult to refute the allegations on the other side, we may compare our arguments with those of our opponents, provided there be a probability of making ours appear the stronger. Such arguments against us as are strong from their number must be separated; as, in the example which I gave a little above, You were the heir of the deceased; you were poor; you were harassed for a large sum of money by your creditors; you had offended the deceased, and you know that he purposed to alter his will.
13. These arguments, taken together, have much weight; but if you divide them, and consider them separately, they will be like a great flame, which had its strength from a large mass of fuel, but which will dwindle away when that which nourished it is withdrawn, or like large rivers, which, if they are divided into rivulets, become fordable in any part. The form of our refutation, therefore, must be adapted to the interest of our cause; we may sometimes state the arguments of our adversary separately, and sometimes collect them into a body; 14. for, in certain cases, what our opponent has deduced from several particulars, it will be sufficient for us to include in a single proposition; for example, if the accuser shall say that the defendant had many motives for committing the crime with which he charges him, we may, without recapitulating all the alleged motives, deny simply that the argument from the motives ought to be regarded, because it is not to be supposed that every man who had a motive for committing a crime has committed it. 15. Yet it is best for the prosecutor, in general, to group arguments and for the defendant to disperse them.
But the defendant must consider in what manner that which has been stated by the prosecutor must be refuted. If it be evidently false, it will be sufficient to deny it; as Cicero, in pleading for Cluentius [C. 60], denies that he, whom the accuser had affirmed to have fallen down dead on drinking from a cup, died the same day. 16. To refute allegations that are inconsistent, or idle, or foolish, requires no art, and it is therefore unnecessary to give either precepts or examples concerning them. That also which is said to have been done in secret, (they call it the obscure kind of charge,) and without witness or proof, is sufficiently weak in itself (for it is enough that the adversary cannot attest it); and it is the same with whatever has no reference to the question.
17. It is the business of a pleader, however, at times, to represent the statements of the adversary in such a way that they may either appear contradictory, or foreign to the question, or incredible, or superfluous, or favorable to our side rather than his own. It is a charge against Oppius [C. 10, sect. 69] that he embezzled the provisions intended for the soldiers; a grave accusation; but Cicero shows that it was inconsistent with other charges brought by the same prosecutors, who accused Oppius, at the same time, of attempting to corrupt the soldiers with largesses. 18. The accuser of Cornelius engages to produce witnesses of the law having been read by him when tribune; this charge Cicero renders ineffectual by admitting it. Quintus Caecilius solicits the office of prosecuting Verres, because he had been Verres' quaestor; but Cicero [Divinat. in Quint. Caecil. c. 2, 6, 11, et passim. He was a Jew by birth, according to Plutarch, life of Cicero, as well as the other Caecilius mentioned by Quintilian] made that very circumstance appear in his own favor.
19. As to other charges, the mode of refuting them all is much the same; for they are either to be examined by conjecture, whether they are true; or by definition, whether they properly concern the cause; or, with regard to their quality, whether they are dishonorable, unjust, scandalous, inhuman, cruel, or deserve any other designation that falls under the head of quality. 20. It is to be considered, indeed, not only with regard to the first charges in an action, but throughout the whole of it, whether it be excessively rigorous, as that of Labienus against Rabirius, under the lex perduellionis [Rabirius was an aged senator, accused of having caused the death of the Tribune Saturninus, forty years after that event had taken place. Labienus brought the charge against him at the instigation of Julius Caesar, who wished to deter the senate from taking up arms against the popular party. The accusation was made, not on the ground of laesa majestas, as was usual, but under the old lex perduellionis, the severity of which is apparent from Livy, i. 26. The duumviri appointed to try the cause, in conformity with that law, were Julius Caesar himself and his relative Lucius Caesar, by whom he was condemned, and would have been put to death had he not appealed to the people. The people, too, would have ratified his condemnation, had it not been for a stratagem of Quintus Metellus Celer, who removed the military flag that waved over the Janiculum, and thus, according to ancient usage, broke off the proceedings. See Dion Cass. xxxvii. 24-28; and Cic. pro Rabirio passim.]; or unfeeling, as that of Tubero against Ligarius, whom he accused when an exile, and exerted himself to the utmost to prevent Caesar from pardoning him; or presumptuous, as that against Oppius when he was accused on a letter of Cotta.
21. In like manner other actions may be contemplated, and shown to be rash, insidious, or vindictive. But the strongest allegation that you can bring against an action, is, either that it is fraught with danger to the public, as Cicero says in his defense of Tullius, who has ever laid down such a maxim, or to whom could it be permitted without danger to the whole community, to kill a man because he says that he is apprehensive of being killed by him? or to the judges themselves, as Cicero, speaking for Oppius, exhorts the judges at some length that they should not sanction that kind of action against the equestrian order. 23. For some arguments, again, contempt may be at times expressed, as being frivolous or having nothing to do with the question; a course which Cicero frequently adopts; and this affectation of contempt is sometimes carried so far, that we trample with disdain as it were upon that which we should be unable to refute by regular argument.
33. But since the greater part of such charges is founded upon resemblances, we must use our utmost efforts, in refuting them, to discover some discrepancy in what is stated. This is most easily found in legal questions; for the law, to which we refer, was assuredly made with reference to other matters than that under consideration; and so much more easily may variation in the different cases be made to appear [scarcely any two cases being entirely similar]. As to comparisons drawn from brute animals, or inanimate objects, it is easy to elude them.
24. As to examples from historical facts, if they bear hard upon us, they may be met in various ways; if they are ancient, we may treat them as fabulous; if they cannot be doubted, we may endeavor to show that they are inapplicable to the case; for it is impossible that two cases should be alike in all respects; for instance, if Scipio Nasica, after killing Gracchus, should be defended on the resemblance of his act to that of Ahala [iii. 7, 21; v. 9, 13], by whom Maelius was killed, it may be said that Maelius aspired to sovereignty, but that Gracchus only brought forward some popular laws; that Ahala was master of the horse, but Nasica a private individual. If all other means fail us, we must then see whether it can be shown that even the fact adduced as a precedent was not justifiable. What is to be understood with regard to examples, is also to be observed with regard to previous judgments.
25. From the remark which I made above, that it is of important to notice in what manner the accuser stated his charges, I wish it to be understood, that if he has expressed himself but feebly, his very words may be repeated by ourselves; or, if he has used fierce and violent language, we may reproduce his matter in milder terms; 26. as Cicero says in his defense of Cornelius, He took hold of the tablet of the law; and this we may do with a certain degree of deference to our client; so that, if we have to speak on behalf of a man of pleasure, we may observe that a rather free course of life has been imputed to him; and so we call a person frugal instead of niggardly, or free of speech instead of slanderous. 27. We must at any rate take care not to repeat our adversary's charges with their proofs, or to amplify any point in them, unless such as we mean to ridicule, as is done in the following passage from Cicero [Pro Muraen. c. 9]: You have been with the army, says he; for so many years you have not set foot in the forum; and, when you return after so long an interval of time, do you contend for honors with those who have made the forum as it were their dwelling-place?
28. In replies, too, the whole accusation may be sometimes repeated; a mode which Cicero adopts in his defense of Scaurus with reference to Bostar [iv. 1, 69. Scaurus was accused of having caused the death of Bostar], speaking in the character of his antagonist; or, if we do not repeat the whole, we may take parts of it, and put them together, as in Cicero's defense of Varenus [v. 10, 69]: When he was travelling through fields and solitary places with Pompulenus, they met, as they said, the slaves of Ancharius, when Pompulenus was killed, and Varenus immediately after bound, and kept in custody till his father should signify what he wished to be done with him. Such a mode may always be adopted when the order of facts stated by the accuser appears improbable, and may be deprived of credit by a comment. Sometimes points which prejudice us collectively may be separated; and this is generally the safest method. Sometimes the parts of a reply are naturally independent of each other; of which no example need be given.
29. Common arguments are easily apprehended, not only because they may be used by either party, but because they are of more service to the defendant than to the prosecutor; for I think it no trouble to repeat what I have often intimated, that he who is the first to employ a common argument, renders it adverse to him; for that is adverse to him which his opponent can use equally well. You say it is not probable that Marcus Cotta contemplated so great a crime; and is it credible, then, that Oppius attempted to commit so great a crime? 30. But it is the part of a skillful pleader to discover in the case of his adversary particulars that are at variance with one another, or that may be made to appear at variance; and such contradictions are sometimes evident on the very face of a statement, as those noticed by Cicero on the trial of Caelius [Cic. pro Cael. c. 13]; Clodia says that she lent Caelius money, which is a sign of great friendship on her part; yet alleges that poison was prepared for her by Caelius, which is a sign of the most violent hatred on his.
31. So, in his speech for Ligarius [C. 3], Tubero, says he, makes it a crime in Ligarius that he was in Africa; and yet complains that he himself was not admitted into Africa by Ligarius. Sometimes an inadvertent remark of our opponent affords us an opportunity of exposing his statements; an opportunity given chiefly by those who are fond of fine thoughts, and who, enticed by some opening for their eloquence, do not sufficiently regard what they assert, fixing their attention on the passage before them, and not on the whole scope of the cause.
33. What could appear more prejudicial to Cluentius [Cic. pro Cluent. c. 48] than the mark of infamy set on him by the censors? What could have seemed more to his disadvantage than that the son of Egnatius [the son of Egnatius had been one of the judices on the trial of Oppianicus] had been disinherited by his father for the very crime of corrupt judgment by which Cluentius had procured the condemnation of Oppianicus? 33. But Cicero shows that these two facts contradict one another: But I think that you, Accius, should consider carefully whether you would have the judgment of the censors, or that of Egnatius, to carry the greater weight. If that of Egnatius, you think that judgment light which the censors have pronounced against others, for they expelled this very Egnatius, whom you represent as a man of authority, from the senate. If that of the censors, they retained Egnatius the son, whom his father had disinherited by exercising censorial functions, in the senate, when they ejected his father from it.
34. As to some faults, there is far more folly in committing them than acuteness in noting them. I mean such as advancing a disputable for an indisputable argument, a controverted for an acknowledged fact, a point common to many causes, for one peculiar to the cause in hand, or introducing anything vulgar, superfluous, too late for the purpose, or incredible. For it is incident to incautious speakers to aggravate a charge, when it is still to be proved; to dispute about an act when the question is about the agent; to attempt what is impossible; to break off a discussion as finished when it is scarcely commenced; to prefer speaking of the party instead of the cause; to attribute to things the faults of persons, as, for example, accusing the decemviral power instead of Appius; to contradict what is evident; to say what may be taken in another sense from that which they intend; to lose sight of the main point of the cause; to reply to something that is not asserted. 35. This mode of reply, indeed, may be adopted as an artifice in some cases, as when a bad cause requires to be supported by foreign aid; thus when Verres [Cicero in Verr. v. 1] was accused of extortion, he was defended for having bravely and actively defended Sicily against pirates.
36. The same rules may be given with regard to objections that we may have to encounter; but they require the more attention in this case, as many speakers fall into two opposite errors as to objections. Some, even in the forum, neglect them as matters troublesome and disagreeable, and content, for the most part, with what they have premeditated, speak as if they had no opponent; an error which is still more common in the schools, in which not only are objections disregarded, but the declamations themselves are in general so framed, that nothing can be said on the opposite side. 37. Others, erring from too great caution, think that they must reply, if not to every word, at least to every thought or insinuation, even the lightest, of their adversary; a task which is endless and superfluous; for then it is the cause that is refuted, and not the pleader. For my own part, I shall consider a speaker eloquent only when he speaks in such a way that whatever he says to benefit his party, the credit of it may seem to be due to his talent and not to his cause, and, if he says anything to injure his party, the blame of it may seem attributable to his cause and not to his talent.
38. Invectives, such as that against Rullus [Cic. De Lege Agraria, ii. 5] for the obscurity of his language, against Piso [Cic. in Pis, c. 1 and 30] for his foolishness of speech, against Antony [Philipp. ii. 4; iii. 4; xiii. 19] for his ignorance of things and words, as well for his stolidity, are allowed to passion or just resentment, and are of effect in exciting dislike towards those whom the speaker may wish to render hateful. 39. The mode of reply adopted towards advocates should be different; though at times not only their mode of speech, but even their character, their look, their walk, their air, are excusably attacked; as Cicero, in speaking against Quintius [Cic. pro Cluent. c. 40], assails not only such personal peculiarities, but even his purple-bordered toga descending to his heels; for Quintius had pressed hard upon Cluentius by his turbulent harangues.
40. Sometimes, for the purpose of effacing an unpleasant impression, what is said severely by one party is eluded with a jest by the other. In this way Triarius was mocked by Cicero; for when he had observed that the pillars of the house of Scaurus were conveyed through the city on waggons, Cicero retorted, And I, who have pillars from the Alban mount, had them brought in panniers. Such ridicule is more freely allowed against an accuser, whom concern for his client sometimes leads a defender to assail with severity.
41. But what is allowed against all pleaders, without any violation of good manners, is complaint, if they can be said to have craftily passed in silence, or abbreviated, or obscured, or put off any point. 42. A change in the direction of the defense, too, is often a subject of blame; a point on which Accius [Cic. pro Cluent. c 62] objects in pleading against Cluentius, and Aeschines in his speech against Ctesiphon, Accius complaining that Cicero would adhere only to the letter of the law, and Aeschines that Demosthenes would say nothing on the subject of the law. But our declaimers should be especially admonished not to offer such objections as may be easily answered, or imagine that their opponent is an absolute fool. But as fertile common-places, and thoughts that may please the multitude, occur to us, we make to ourselves matter for our speeches, molding it to our fancy; so that this verse may be not disadvantageously borne in mind:
Non male respondit; male enim prior ille rogarat.
43. Such a practice will be fatal to us in the forum, where we shall have to reply to our adversary, and not to ourselves. It is said that Accius being asked why he did not plead causes, when he displayed in his tragedies such power in making able replies, gave this reason, that on the stage he made his characters say what he wished, but that in the forum his adversaries would say what he did not wish. 44. It is therefore ridiculous in exercises which are preparatory to the forum, to consider what reply may be made before we consider what objections may be offered; and a good teacher ought to commend a pupil when he ably imagines anything favorable to the opposite side as much as when he conceives anything serviceable to his own.
45. There is another practice with regard to objections that seems to be always permissible in the schools, but ought rarely to be allowed in the forum. For where when we have to speak first on the side of the prosecutor, in a real cause, how can we make replies to objections, when our opponent has not yet spoken? 46. Many speakers, however, fall into this absurdity, whether from a habit contracted in the schools, or from fondness for speaking, and afford amusement and sport to those who answer them, and who sometimes jestingly remark that they said nothing, and could have said nothing so foolish; sometimes, that they have been well reminded by their opponent, and thank him for his assistance; but most frequently, what is, indeed, a very strong argument in their favor, that their opponent would never have replied to objections that had not been made, unless he knew that such objections were well founded, and had been impelled to acknowledge their justice by the voice of conscience.
47. Thus Cicero, in his speech for Cluentius [C. 52] says, You have repeatedly observed, that you are informed that I intend to defend this cause by the aid of the letter of the law. Is it so? Am I then to suppose that I am secretly betrayed by my friends? Is there some one among those, whom I fancy to be my friends, that reports my designs to the enemy? Who is it that told you of my intention? Who has been so perfidious? To whom have I communicated it? No one, I conceive, is to blame; it was, doubtless, the law itself that informed you. 48. But some, not content with answering imaginary objections, amplify whole portions of them, saying that they knew the opposite party would say so and so, and support their assertions with such and such arguments. This practice Vibius Crispus, a man of pleasing and refined humor, very happily ridiculed when I was at the bar: I, said he, in reply to an opponent of that sort, do not make those objections, for to what purpose is it that they should be twice made?
49. Sometimes, however, something like an answer to an objection may be made, if anything be comprised in the depositions on the part of the adversary be discussed in a private consultation of advocates, for we shall then reply to something said by the opposite party and not to anything imagined by ourselves; or if the cause be of such a nature that we can state certain objections besides which no others can be offered; as, for example, when stolen goods are found in a house, he who is accused of having stolen them must, if he deny the charge, necessarily say either that they were brought thither without his knowledge, or deposited with him, or given to him; to all which allegations we may reply, even though they have not been advanced. 50. In the schools, too, we may very properly obviate objections, so as to exercise ourselves for speaking in both places, the first and the second, on the side of the prosecutor. Unless we do so, we shall never acquire practice in combating objections, as we have no adversary to whom we are called upon to reply.
51. It is also a fault in a pleader to be too anxious, and to labor at removing every thing that stands in his way; for such solicitude excites distrust in the judge; and very frequently arguments, which, if stated off hand, would have removed all doubt, but which are tardily advanced through excessive precaution, lose credit, because the advocate himself seems to think something additional necessary to support what he alleges. An orator, therefore, should carry confidence in his manner, and speak as if he had the highest assurance of the success of his cause. 52. This quality, like all others, is eminently apparent in Cicero; for his extraordinary affectation of security is like security itself; and there is such authority in his language as supplies the place of proof, so that we do not venture to doubt his statements. But he who can perceive what is the strongest point in his adversary's case and his own, will easily judge what arguments he will have to oppose or to urge.
53. As to order, there is no part of a cause in which it will give us less trouble; for, if we are the prosecutors, we have first to support our own allegations, and then to refute what is brought against them; if we are defendants, we have to commence with refutation. 54. But from what we advance against any objection there arise other objections, and sometimes to a great extent; as the hands [manus; see scholiast on Statius Theb. vi. 788; see also Lucan. vi. 190; Ammian. Marcell. xxiv. 4, 18] of gladiators, which are called the second, become the third, if the first was intended to provoke the assault of the adversary, and the fourth, if the challenge be repeated, so as to make it necessary to stand on guard twice and to attack twice; and this process may lead still further.
55. Refutation includes also that simple kind of proof of which I have given an example above, proceeding from the feelings, and consisting in mere affirmation, such as that of Scaurus, of which I have already spoken; and I know not whether such sort of proof may not even be used more frequently when a denial is made. But the chief object of each party must be to see where the main point lies; for it too frequently happens in a cause that many points are disputed, while judgment is to be passed on few.
56. In these particulars consists the art of proving and refuting; but it requires to be supported and embellished by the powers of the speaker; for however well adapted our arguments may be to establish our case, they will nevertheless be but weak unless they are urged with extraordinary vigor by him who uses them. 57. Those common-place observations, accordingly, concerning witnesses, written evidence, arguments, and other matters of the kind, produce great impression on the minds of the judges; as well as those peculiarly arising from the cause, in which we praise or blame any action, show that it is just or unjust, or make it appear greater or less, worse or better, than it really is. Of these some are useful in the comparison of one argument with another, others in the comparison of several, others in influencing the decision of a whole cause. 58. Some, too, serve to prepare the mind of the judge, others to confirm it in the opinions which he has already formed; and such preparation or confirmation has reference sometimes to particular heads, and may be offered as may be suitable for each.
59. I wonder, therefore, that it should have been disputed, and with no small acrimony, between two leaders of opposite sects as it were, whether arguments from moral considerations should accompany each particular head, as Theodorus would have it, or whether the judge should be informed before his feelings are excited, as Apollodorus directs; as if no middle course could be pursued, and as if nothing could he ordered to suit the interests of the cause. But it is men who do not speak in the forum themselves that give these directions; and their systems of rules, which they have composed at leisure and at ease, are disturbed by the necessary confusion of battle. 60. For almost all authors, who have set forth methods of speaking, as a kind of mysteries [compare Cic. de Orat. i. 47], have bound us not only to certain subjects for our arguments, but by fixed laws as to the form of expressing them. But having offered these few remarks on this head, I shall not shrink from communicating what I myself think about it, that is, what I observe to have been the practice of the most eminent orators.
1. The term enthymeme rhetoricians apply not only to the argument itself, that is the matter which is used for the proof of any thing else, but to the conclusion of the argument, which they make, as I said. twofold; one from consequents, which consists of a proposition and a proof immediately following it; as in this passage of Cicero's speech for Ligarius [C. 6]: The cause was then doubtful, became there was something that might be sustained on each side; but now that side must be deemed the stronger to which even the gods have given support; this is an enthymeme, for it contains a proposition and a reason, but no logical conclusion, and is therefore an imperfect syllogism; 2. the other from opposites, which some call the only form of enthymeme, and in which the proof is much stronger.
Such is that in the speech of Cicero for Milo: You sit therefore as avengers of the death of a man to whom you would be unwilling to restore life even if you thought it could be restored by your means. 3. This form is sometimes made to consist of several clauses, of which we have an example by the same orator on behalf of the same client: Him, therefore, whom he would not kill to the satisfaction of all, was he willing to kill to the dissatisfaction of some? Him, whom he did not dare to kill with the sanction of the law, in a favorable place, at a favorable time, and with impunity, did he boldly resolve to kill unjustly, in an unfavorable place, at an unfavorable time, and at the hazard of his own life? 4. But the best kind of enthymeme appears to be that in which a reason is subjoined to a proposition dissimilar or opposite, as in this passage of Demosthenes [In Androtlonem, p. Reisk. 595]: For, if acts have at times been committed against the laws, and you have imitated them, it does not follow that you should therefore escape punishment, but much rather that you should be condemned; for if any of the violators of laws had been condemned, you would not have written this, and, if you are condemned, no other will write anything similar.
5. Of the epicheirema [Quintilian, after noticing several opinions about the parts of an epicheirema, at last adopts that of Aristotle, that there are three necessary parts of it, the proposition, the assumption, and the concluson] four, five, and even six parts are made by some rhetoricians; Cicero [De Inv. i, 37; Script. ad Herenn. ii. 18] makes at most five; the proposition, or major, with its reason; the assumption, or minor, with its proof; and, as the fifth, the conclusion; but as the major has sometimes no need of a reason, and the minor no need of proof, and as there is sometimes, too, no need of a conclusion, he thinks that the epicheirema may at times consist of only four, or three, or even two parts.
6. To me, as well as to the greater number of authors, there appears to be not more than three; for such is the nature of reasoning, that there must be something about which there is a question, and something by which it is to be proved; and a third may be added as resulting from the agreement of the two former. Thus there will be first the proposition, or major; secondly, the assumption, or minor; and thirdly, the conclusion; for the reason of the first part and the proof of the second may be included in those parts to which they are attached. 7. Let us take, accordingly, an example of the five parts from Cicero [De Inv. i. 34]: Those things are better managed which are regulated by some plan than those which are conducted without any fixed design; "this," says Cicero, "they call the first part, and think that it ought to be established with various reasons and the most copious eloquence possible."
For myself, I consider the whole proposition with its reasons as but one part; else, if the reasoning be called a part, and that reasoning be various, there must necessarily be various parts. 8. He then gives the assumption, or minor: But of all things nothing is managed better than the whole world; "and," he adds, "of this assumption they introduce its proof as a fourth part;" but I say the same concerning the assumption as concerning the proposition. 9. "In the fifth place," he continues, "they place the conclusion, which either infers that only which necessarily results from all the preceding parts, as, Therefore the world is regulated by some plan; or, after briefly bringing together the proposition and assumption, adds what is collected from them, as, But if those things are better managed which are regulated by a plan than those which are conducted without a plan, and if of all things nothing is managed better than the whole world, it follows therefore that the world is regulated by a plan." A third part I accordingly admit.
10. In the three parts, however, which I have made, there is not always the same form. There is one form in which the same is expressed in the conclusion as in the major proposition: The soul is immortal, for whatever has its motion from itself, is immortal: But the soul has its motion from itself: Therefore the soul is immortal. This form prevails not only in detached arguments, but throughout all causes, such at least as are simple, and in the various questions in causes [quaestiones are to be distinguished from the causa universa]. 11. For all causes and all questions have a first proposition: as, You have committed sacrilege; and, It is not every one that has killed a man that is guilty of murder: and attached to this a proposition, a reason, (which, however, is more expanded in causes and portions of causes than in detached arguments,) and, lastly, a conclusion, in which they commonly show, either by a full enumeration of particulars, or a short recapitulation, what they have established. In this kind of epicheirema the proposition is doubtful, for it is about the proposition that the question is.
12. In another form the conclusion is not indeed the same as the major proposition, but has the same force: Death is nothing to us, for what is dissolved into its elements, is without consciousness; and that which is without consciousness is nothing to us. In a third form the proposition is not the same as the conclusion: All animated things are better than things inanimate: But nothing is better than the world: The world therefore is animated. What is here the conclusion might be made the major proposition; for the reasoning might be stated thus: The world is animated, for all animated things are better than things inanimate.
13. But this major proposition is either an acknowledged truth as in the last example, or requires proof, as, He who wishes to lead a happy life, ought to become a philosopher; this is not universally admitted; and the conclusion cannot be drawn unless the premises be established. The minor proposition, too, is sometimes universally acknowledged, as, But all wish to live a happy life, and sometimes requires to be proved, as, What is dissolved into its elements is void of consciousness, for it is uncertain whether the soul, when detached from the body, may not be immortal, or exist at least for a certain time. I may observe that what some call the assumption, or minor proposition, others call the reason.
14. But the epicheirema differs in no respect from the syllogism, except that the syllogism has a greater number of forms, and infers truth from truth; while the epicheirema is generally employed about probabilities; for if it were always possible to prove what is disputed by what is acknowledged, there would scarcely be any work for the orator in the matter; since what need would there be of superior ability to reason thus: 16. The property belongs to me, for I am the only son of the deceased, or, I am the sole heir, since by the laws respecting property the property of a testator is given to the heir according to the purport of the will; and to me therefore the property belongs.
16. But when the reason given becomes itself a matter of dispute, we must render that certain by which we seek to prove what is uncertain; for instance, if it be said by the adversary, You are not his son, or, You are not legitimate, or, You are not the only son, or, again, You are not the heir, or, The will is not valid, or, You are not capable of inheriting, or, You have co-heirs, we must establish a just ground on which the property ought to be adjudged to us. 17. But when a long chain of reasoning intervenes, a recapitulatory conclusion is requisite. In other cases, a proposition and reason may often be sufficient [Cic. Pro Mil. c. 4]: The laws are silent amidst arms, and do not require their sanction to be waited for, when he who would wait for it must suffer an unjust death before a just penalty could be exacted. Hence it has been observed that the form of enthymeme which rests upon consequents is similar to a reason.
Sometimes, again, a single proposition is judiciously given alone, without any reason, as that which we just now cited, The laws are silent amidst arms. 18. We may also commence with the reason, and then draw a conclusion, as, in the same speech, But if the twelve tables allow a thief to be killed with impunity under any circumstances, and a thief in the day if he defend himself with a weapon, who can suppose that in whatever case a man has been killed, he who killed him must suffer punishment? Cicero has also made some variation in this form, and put the reason in the third place: When he sees that the sword is sometimes put into our hands by the laws themselves. 19. The following sentence, again, takes the form of that which precedes: But how can death be unjustly inflicted on a lier-in-wait and a robber? This is the proposition. What is the object of our escorts, of our weapons? This is the reason. Which certainly we should not be allowed to have, if we were under no circumstances to make use of them. This is a conclusion from the proposition and the reason.
20. This mode of argument is refuted in three ways; that is, it is attacked in each of its parts; for the proposition may be combated, or the assumption, or the conclusion, or sometimes all the three. For example, the proposition that He is justly killed who lies in wait to kill, may be combated, for the first question in the defense of Milo is, Whether he should be allowed to live who confesses that a man has been killed by his hand? 21. The assumption, or minor proposition, may be assailed by all the arts which I have mentioned in the chapter on refutation. As to the reason, we may observe that it is sometimes true when the proposition to which it is attached is false; and that a false reason is sometimes attached to a true proposition. Virtue is a good, is a true proposition; but if any one add as a reason, because it makes men rich, a false reason is given for a true proposition.
22. As to the conclusion, it is either denied to be just when it expresses something different from what can be fairly deduced from the premises, or is alleged to have nothing to do with the question: A lier-in-wait is justly put to death, for he who prepared himself to offer violence as an enemy, ought also to be repelled as an enemy; Clodius, therefore, as an enemy, was justly put to death: here the conclusion is false, for it has not yet been proved that Clodius was a lier-in-wait. 23. On the other hand, it would be a just conclusion to say, A lier-in-wait, therefore, as an enemy, was justly put to death, but it would be nothing to the purpose; for it had not previously been proved that Clodius was a lier-in-wait. But though the proposition and reason may be true, and the conclusion false, yet if the proposition and reason are false, the conclusion cannot be true.
24. The enthymeme is called by some an oratorical syllogism, by others a part of a syllogism, because the syllogism has always its regular proposition and conclusion, and establishes by means of all its parts that which it has proposed; while the enthymeme is satisfied if merely what is stated in it be understood. 26, A syllogism is of this form: Virtue is the only good, for that only is good of which none can make an ill use: But none can make an ill use of virtue: Therefore virtue is the only good: the enthymeme will consist only of the consequents, Virtue is a good, because none can make an ill use of it.
A negative syllogism will be of this nature: Money is not a good, for that is not a good of which any one can make a bad use: But any one can make a bad use of money: Therefore money is not a good: here the enthymeme will consist of the opposites: Is money a good, when any one can make a bad use of it? 28. The following sentence has the syllogistic form: If money, which consists of coined silver, comes under the general term silver, he that bequeathed all his silver bequeathed also his money consisting in coined silver: But he did bequeath all his silver: Therefore he bequeathed also his money consisting of silver; but for an orator it is sufficient to say, When he bequeathed all his silver, he bequeathed also his money which consists of silver.
27. I think that I have now gone through the mysteries of those who deliver precepts on rhetoric. But judgment must be exercised in applying such directions as I have given. For though I do not think it unlawful to use syllogisms occasionally in a speech, yet I should by no means like it to consist wholly of syllogisms, or to be crowded with a mass of epicheiremata and enthymemes, for it would then resemble the dialogues and disputations of logicians, rather than oratorical pleading; and the two differ widely from one another. 28. Your men of learning, who are seeking for truth amongst men of learning, examine every point with the utmost minuteness and scrupulosity, with the view of bringing it to clearness and certainty, claiming to themselves the offices of discovering and judging what is right, of which they call the one τοπικη, "the art of finding arguments," and the other κριτικη, "the power of judging of their soundness;" 29. but we orators must compose our speeches to suit the judgment of others, and must frequently speak before people altogether uneducated, or at least ignorant of any other literature than what we teach them, and unless we allure them by gratification, attract them by force, and occasionally excite their feelings, we shall never impress upon them what is just and true.
30. Oratory should be rich and brilliant; but it will have neither of those qualities, if it be pieced out of regular and frequent syllogisms, expressed almost always in the same form, for it will then incur contempt from appearing mean, and aversion from looking servile; if it is copious, it will excite satiety; if it attempts to be swelling, it will meet disdain. 31. Let it hold its course, therefore, not along foot-paths, but through open fields; let it not be like subterranean springs confined in narrow channels, but flow like broad rivers through whole valleys, forcing a way wherever it does not find one. For what is a greater misery to speakers than to be slaves to certain rules, like children imitating copies set them, and, as the Greeks proverbially express it, taking constant care of the coat which their mother has given them? [This proverb is given by Plutarch in his first oration de Alexandri Fortuna, vol. ii. p. 330 B.]
32. Must there always be proposition and conclusion, from consequents and opposites? Is the speaker not to animate his reasoning, to amplify it, to vary and diversify it with a thousand figures, making his language appear to grow and spring forth naturally, and not to be manufactured, looking suspicious from its art, and showing everywhere the fashioning of the master? What true orator has ever spoken in such a way? In Demosthenes himself are not the traces to be found of such regularity and art very few? Yet the Greeks of our own day (the only respect in which they act less judiciously than ourselves) bind their thoughts as it were in chains, connecting them in an inexplicable series, proving what is undisputed, confirming what is admitted, and calling themselves, in these points, imitators of the ancients; but if they are asked whom they imitate, they will never give an answer.
33. Of figures I shall speak in another place. At present, it seems necessary only to add, that I do not agree with those who think that arguments are always to be expressed in a pure, lucid, and precise style, but neither copious nor ornate. That they should be precise and perspicuous indeed, I admit, and, on matters of little consequence, set forth in plain language, and in terms as appropriate and familiar as possible; but, if the subject be of a higher nature, I think that no ornament should be withheld from them, provided that it causes no obscurity.
34. For a metaphor often throws a flood of light on a subject; so much so, that even lawyers, whose solicitude about the propriety of words is extreme, venture to call litus, "the sea-shore," the part where the wave eludit, "sports." [See Cic. Topic. c. 7. "Aquillius,—when there was any discussion about shores, all of which you maintain to be public,—used to define a shore qua fiuctus eluderet, where the wave sported."—See also Cicero de Nat. Deor. ii. 39.] 35. The more rugged a subject is, too, by nature, the more we must recommend it by charms of expression; argument is less suspected when it is disguised, and to please the hearer contributes greatly to convince him. Otherwise we must pronounce Cicero deserving of censure, for using, in the heat of his argumentation, the metaphorical expressions, The laws are silent amid arms, and, The sword is sometimes presented to us by the laws themselves. But moderation must be observed in the use of such figures, that, while they are an embellishment to a subject, they may never be an encumbrance to it.
1. Having entered upon this undertaking, Marcellus Victor, principally at your request, but with a desire, at the same time, that some profit to well-disposed youth might arise from my labors, I have applied to it recently with great diligence, from the necessity, almost, of the office conferred upon me, yet with a regard also to my own gratification, thinking that I should leave this work to my son, whose remarkable ability deserved even the most anxious attention of a father, as the best portion of his inheritance, so that if the fates should cut me off before him, as would have been but just and desirable, he might still have his father's precepts to guide him. 2. But while I was pursuing my design day and night, and hastening the completion of it, through fear of being prevented by death, fortune sent so sudden an affliction upon me, that the result of my industry interests no one less than myself, for I have lost by a second severe bereavement that son, of whom I had conceived the highest expectations; and in whom I reposed my only hopes for the solace of my age. [He means the loss of his son, at the age of ten years. He had previously lost another at the age of five.]
3. What shall I now do? Or what further use can I suppose that there is for me upon the earth, when the gods thus animadvert upon me? When I had just begun to write the book which I have published, On the Causes of the Corruption of Eloquence [this work is lost], it happened that I was struck with a similar blow. It would have been best for me, therefore, to have thrown that inauspicious work, and whatever ill-omened learning there is in me, into the flames of that premature funeral pile which was to consume what I loved, and not to have wearied my unnatural prolongation of life with new and additional anxieties. 4. What parent, of right feelings at least, would pardon me, if I could pursue my studies with my accustomed diligence, and would not hate my insensibility, if I had any other use for my voice than to accuse the gods for causing me to survive all my children, and to testify that divine providence pays no regard to terrestrial affairs?
If such neglect of the gods is not visible in my own person, to whom nothing can be objected but that I am still alive, it is certainly manifest in the fate of those whom cruel death has condemned to perish so undeservedly, their mother having been previously snatched from me, who, after giving birth to a second son, before she had completed her nineteenth year, died, though cut off prematurely, a happy death [happy in not having seen the deaths of her children]. 5. By that one calamity I was so deeply afflicted, that no good fortune could ever afterwards render me completely happy; for, exhibiting every virtue that can grace a woman, she not only caused incurable grief to her husband, but, being of so girlish an age, especially when compared with my own, her loss might be counted even as that of a daughter.
6. I consoled myself, however, with my surviving children; and she, knowing, what was contrary to the order of nature, though she herself desired it, that I should be left alive, escaped the greatest of pangs in her untimely death. My younger son dying, first of the two, when he had just passed his fifth year, took from me, as it were, the sight of one of my eyes. 7. I am not ostentatious of my misfortunes, nor desirous to exaggerate the causes which I have for tears; on the contrary, I wish that I had some mode of lessening them; but how can I forbear to contemplate what beauty he showed in his countenance, what sweetness in his expressions, what nascent fire in his understanding, and what substantial tokens he gave, (such as I know are scarcely credible in one so young,) not only of calm but of deep thought?
Such a child, even if he had been the son of a stranger, would have won my love. 8. It was the will, too, of insidious fortune, with a view to torture me the more severely, that he should show more affection for me than for any one else, that he should prefer me to his nurses, to his grandmother who was educating him, and to all such as gain the love of children of that age. I, therefore, feel indebted to that grief which I experienced a few months before for the loss of his excellent mother, whose character is beyond all praise, for I have less reason to mourn on my own, than to rejoice on her account.
9. I then rested for my only hope and pleasure on my younger son, my little Quintilian, and he might have sufficed to console me, for he did not put forth merely flowers, like the other, but, having entered his tenth year, certain and well-formed fruits. 10. I swear by my own sufferings, by the sorrowful testimony of my feelings, by his own shade, the deity that my grief worships, that I discerned in him such excellences of mind, (not in receiving instruction only, for which, in a long course of experience, I have seen no child more remarkable, or in steady application, requiring, even at that age, as his teachers know, no compulsion, but in indications of honorable, pious, humane, and generous feelings,) that the dread of such a thunder-stroke might have been felt even from that cause, as it has been generally observed, that precocious maturity is most liable to early death, and that there reigns some malignant influence to destroy our fairest hopes, in order that our enjoyments may not be exalted beyond what is appointed to man.
11. He had also every adventitious advantage, agreeableness and clearness of voice, sweetness of tone, and a peculiar faculty in sounding every letter in either language, as if he had been born to speak that only. But these were still only promising appearances; he had greater qualities, fortitude, resolution, and strength to resist pain and fear; for with what courage, with what admiration on the part of his physicians, did he endure an illness of eight months! How did he console me at the last! How, when he was losing his senses, and unable to recognize me, did he fix his thoughts in delirium only on learning! 12. O disappointment of my hopes! Did I endure, my son, to contemplate your eyes sinking in death, and your breath taking its flight? Could I, after embracing your cold and lifeless body, and receiving your last breath, breathe again the common air? Justly do I deserve the affliction which I endure, and the thoughts which affect me!
13. Have I, your parent, lost you, when just raised, by being adopted by a man of consular dignity, to the hopes of enjoying all the honors of your father [father by adoption]; you, who were destined to be son-in-law to the praetor, your maternal uncle; you who, in the opinion of all, were a candidate for the highest distinctions of Attic eloquence, surviving myself only to grieve? May my sufferings at least, if not my obstinate clinging to life, make atonement to you during the rest of my existence! We in vain impute all our ills to the injustice of fortune, for no man grieves long but through his own fault. [A Stoic saying. The tenet, however, was not peculiar to the Stoic sect, but common to all the ancients, and was supported by the example of the Epicurean Atticus. See Plin. H. N. ii. 7.] 14. But I still live, and some occupation for life must be sought, and I must put faith in the learned, who have pronounced letters the only consolation in adversity.
If the present violence of my grief, however, should in time subside, so that some other thought may be admitted among so many sorrowful reflections, I shall not unreasonably crave pardon for the delay in my work; for who can wonder that my studies were interrupted, when it must rather appear wonderful that they were not relinquished entirely? 15. Should anything, then, in this part of my work, appear less finished than that which I commenced when less oppressed with affliction, let it be excused on account of the rigorousness of fortune, who, if she has not extinguished the moderate power of mind which I previously possessed, has at least succeeded in weakening it. But let me, on this very account, rouse myself to action with the greater spirit, since, though it is difficult for me to bear her oppression, it is easy for me to despise it, for she has left nothing further to inflict upon me, and has educed for me, out of my calamities, a security which, though unhappy, is certainly stable. 16. It is right to look favorably on my efforts, too, for this reason, that I persevere for no interest of my own, but that all my pains are devoted to the service of others, if what I write, indeed, be of any service. My work, like the acquisitions of my fortune, I, unhappy that I am, shall not leave to those for whom I designed it.
1. What was to follow [when the progress of the work was interrupted by the death of his son], was the peroration, which some have termed the completion, and others the conclusion. There are two species of it, the one comprising the substance of the speech, and the other adapted to excite the feelings.
The repetition and summing-up of heads, which is called by the Greeks ανακεφαλαιωσις, and by some of the Latins enumeration, is intended both to refresh the memory of the judge, to set the whole cause at once before his view, and to enforce such arguments in a body as had produced an insufficient effect in detail. 2. In this part of our speech, what we repeat ought to be repeated as briefly as possible, and we must, as is intimated by the Greek term, run over only the principal heads; for, if we dwell upon them, the result will be, not a recapitulation, but a sort of second speech. What we may think necessary to recapitulate, must be put forward with some emphasis, enlivened by suitable remarks, and varied with different figures, for nothing is more offensive than mere straightforward repetition, as if the speaker distrusted the judge's memory.
The figures which we may employ are innumerable; and Cicero affords us an excellent example in his pleading against Verres, 3. If your father himself were your judge, what would he say when these things were proved against you? where he subjoins an enumeration of particulars; and there is another instance, in which the same orator, in the same speech, enumerates, on invoking the gods, all the temples spoiled by Verres in his praetorship. We may also sometimes affect to doubt whether something has not escaped us, and to wonder what our opponents will reply to such or such a point, or what hope the accuser can have when our case is so fully established. 4. But what affords us the greatest gratification, is the opportunity of drawing some argument from the speech of our adversary, as when we say, He has omitted this point in the cause; or, He made it his object to oppress us with odium; or, He had recourse to entreaty, and not without reason, when he knew so and so.
5. But I must not go through such figures of speech, severally, lest those which I may now notice should be thought the only ones that can be used; since opportunities for varying our forms of speech spring from the nature of particular causes, from the remarks of the adversary, and even from fortuitous circumstances. Nor must we recapitulate only the points of our own case, but call also upon our opponent to reply to certain questions. 6. But this can only be done when there is time for further speaking, and when we have advanced what cannot be refuted; for to challenge the adversary on facts which make strongly for him, is to be, not his opponent, but his prompter.
7. This has been thought by most of the Attic orators, and by almost all the philosophers, who have left anything written on the art of oratory, the only legitimate kind of peroration; a tenet which the Attic orators adopted, I suppose, for this reason, that at Athens an orator was prohibited even by an officer of the court from attempting to excite the feelings. At the philosophers I am less surprised, since with them all excitement of the feelings is accounted vicious; nor is it consistent with morality, in their opinion, that the judge should be thus diverted from truth, or becoming a good man to use vicious means. Yet they will allow that to move the feelings is justifiable, if what is true, and just, and subservient to the public good, cannot be established by any other method.
8. It is admitted however among all orators that a recapitulation may be made with advantage even in other parts of a pleading, if the cause be complex and require to be supported by numerous arguments; while nobody doubts, on the other hand, that there are many short and simple causes in which recapitulation is by no means necessary. This part of the peroration is common alike both to the prosecutor and the defendant.
9. Both of them also have recourse to the excitement of the feelings; but the defendant more rarely, the prosecutor more frequently and with greater earnestness; for the prosecutor has to rouse the judge, while the defendant's business is to soothe him. But the prosecutor at times produces tears from the pity which he expresses for the matter for which he seeks redress; and the defendant sometimes inveighs with great vehemence at the injustice of the calumny or conspiracy of which he is the object. It is therefore most convenient to divide these duties [those of exciting and soothing], which are for the most part similarly introduced, as I said, in the exordium, but are in the peroration more free and full.
10. A feeling of the judge in our favor is sought but modestly at the commencement, when it is sufficient that it be just admitted, and when the whole speech is before us; but in the peroration we have to mark with what sort of feeling the judge will proceed to consider his sentence, as we have then nothing more to say, and no place is left us for which we can reserve further arguments. 11. It is therefore common to each party to endeavor to attract the favor of the judge towards himself, to withdraw it from his adversary, to excite the feelings and to compose them; and this very brief admonition may be given to both parties, that a pleader should bring the whole force of his cause before his view, and, when he has noticed what, among its various points, is likely, or may be made likely, to excite disapprobation or favor, dislike or pity, should dwell on those particulars by which he himself, if he were judge, would be most impressed. 13. But it is safer for me to consider the parts of each separately.
What recommends the prosecutor to the judge, I have already noticed in the precepts which I have given for the exordium. Some particulars, however, which it is sufficient to intimate in the commencement, must be stated more fully in the conclusion, especially if the cause be undertaken against a violent, odious, or dangerous character, or if the condemnation of the accused will be an honor to the judges, and his acquittal a disgrace to them. 13. Thus Calvus [I. 6, 42] makes an admirable remark in his speech against Vatinius, You know, judges, that bribery has been committed, and all men know that you know it. Cicero, too, in pleading against Verres [Act. i. 15], observes that the disrepute which had fallen on the courts might be effaced by the condemnation of Verres; and this is one of the conciliatory modes of address to which I have before alluded.
If intimidation, too, is to be used, in order to produce a similar effect [fear itself makes the judge unwilling to be unjust to the accuser], it has a more forcible position here than in the exordium. What my opinion is on this point, I have already stated in another book. 14. It is possible also to excite jealousy, hatred, or indignation, more freely in the peroration than elsewhere; in regard to which feelings, the influence of the accused contributes to excite jealousy, ill-reputation, hatred, and disrespect for the judge, (if the accused be contumacious, arrogant, or full of assurance,) indignation, the judge being often influenced, not only by an act or word, but by look, air, or manner.
The accuser [it appears from Tacitus, Ann. xiii. 33, that Cossutianus Capito was condemned for extortion in his province of Cilicia. See also Juv. viii. 92] of Cossutianus Capito was thought, when I was young, to have made a very happy remark, in Greek [it had become customary to plead occasionally in Greek since the time of Molo the tutor of Cicero: Val. Max. ii. 2, 3], indeed, but to this effect, You are ashamed to fear even Caesar. 15. But the most effective way for the accuser to excite the feelings of the judge, is to make that which he lays to the charge of the accused appear the most atrocious act possible, or, if the subject allow, the most deplorable. Atrocity is made to appear from such considerations as these, What has been done, by whom, against whom, with what feeling, at what time, in what place, in what manner; all which have infinite ramifications.
16. We complain that somebody has been beaten; we must first speak of the act; and then state whether the sufferer was an old man, or a youth, or a magistrate, or a man of high character, or one who has deserved well of his country; also whether he was struck by some vile contemptible fellow; or, on the other hand, by some tyrannical person, or by some one from whom he ought least of all to have received such treatment; also whether he was struck, as it might be, on a solemn festival, or when prosecutions for similar offences were being rigorously conducted, or at a time when the government was unsettled, or, as to place, in a theatre, in a temple, in a public assembly, for under such circumstances the offence is aggravated; 17. also whether it can be proved that he was not struck by mistake, or in a sudden fit of passion, or, if in a passion, with great injustice, when, perhaps, he was taking the part of his father, or had made some reply [the injustice, which the aggressor committed, had not been borne by the young man in silence. Compare Terent. Phorm. Prol. 19] to the aggressor, or was standing for office in opposition to him; and whether the aggressor would have proceeded to greater violence than he actually committed.
But the manner contributes most to the heinousness of the act, if he struck the person violently, or insultingly; as Demosthenes excites odium against Meidias by alluding to the part of his body which was struck, and the look and mien of the striker. 18. A man has been killed; we must consider whether it was with a sword, or fire, or poison; with one wound or with several; whether suddenly, or whether he was made to languish in tortures; all which considerations have great effect in this way [that is, in heightening the heinousness of the charge].
The accuser, also, often attempts to excite pity, as when he bewails the sad fate of him whose cause he is pleading, or the destitution of his children or parents. 19. He may also move the judges by a representation of the future, showing what will be the consequences to those who complain of violence and injustice, unless their cause be avenged; that they must flee from their country, sacrifice their property, or endure everything that their enemies may be disposed to inflict on them. 20. But it is more frequently the part of the accuser to guard the feelings of the judge against that pity which the accused would seek to excite, and to urge him to give judgment with boldness. In doing so, he may also anticipate what he thinks his opponent likely to say or do; for this course makes the judges more cautious in adhering to the sacredness of their oath, and diminishes the influence of those who have to reply, since what has been once stated by the accuser, will, if urged in favor of the accused, be no longer new; thus, Servius Sulpicius, in pleading against Aufidia, admonishes the judges that the danger to the witnesses from those persons was not to be brought against him. It is also previously intimated by Aeschines [see Reisk. Orat. iii. 597, 608; Steph. Ixxxiii. 28-84, 23; 611-623; St. Ixxxiv. 33-86, 30] what sort of defense Demosthenes was likely lo use. Judges may sometimes be instructed, too, as to answers which they should make to those who may solicit them in favor of the defendant; an instruction which is a species of recapitulation.
21. As to a party on trial, his dignity, or manly pursuits, or wounds received in war, or nobility of birth, or the services of his ancestors, may be subjects of recommendation to him. This kind of considerations Cicero and Aslnius Pollio have urged even emulously, Cicero [see iv. 1, 69. Val. Max. viii. 1, 10] for Scaurus the father, and Pollio fur Scaurus the son. 22. The cause, also, which has brought him into danger, may be pleaded in his favor, if he appear, for example, to have incurred enmity for some honorable act, and his goodness, humanity, pity, may especially be eulogized; for a person seems justly to solicit from the judge that which he himself has shown to others.
In this part of a speech [he means that such allusions may be made in the peroration as well as in the exordium], too, allusions may be made to the public good, to the honor of the judges, to precedent, to regard for posterity. 23. But that which produces the most powerful impression is pity, which not only forces the judge to change his opinions, but to manifest the feelings in his breast even by tears. Pity will be excited by dwelling either on that which the accused has suffered, or on that which he is actually suffering, or on that which awaits him if he be condemned; representations which have double force, when we show from what condition he has fallen, and into what condition he is in danger of falling.
24. To these considerations age and sex may add weight, as well as objects of affection, I mean children, parents, and other relatives; and all these matters may be treated in various ways. Sometimes also the advocate numbers himself among his client's connections, as Cicero in his speech for Milo [C. 37]: O unhappy that I am! O unfortunate that thou art! Could you, Milo, by means of those who are this day your judges, recall me into my country, and cannot I, by means of the same judges, retain you in yours? 25. This is a very good resource, if, as was then the case, entreaty is unsuited to the party who is accused; for who would endure to hear Milo supplicating for his life, when he acknowledged that he had killed a nobleman because he deserved to be killed? Cicero, therefore, sought to gain Milo the favor of the judges for his magnanimity, and took upon himself the part of suppliant for him.
In this part of a speech prosopopeiae are extremely effective, that is, fictitious addresses delivered in another person's character, such as are suitable either to a prosecutor or defendant. Even mute objects may touch the feelings, either when we speak to them ourselves, or represent them as speaking. 26. But the feelings are very strongly moved by the personification of characters; for the judge seems not to be listening to an orator lamenting the sufferings of others, but to hear with his own ears the expressions and tones of the unfortunate suppliants themselves, whose presence, even without speech, would be sufficient to call forth tears; and as their pleadings would excite greater pity if they themselves uttered them, so they are in some degree more effective when they are spoken apparently by their own mouth in a personification; as with actors on the stage, the same voice and the same pronunciation have greater power to excite the feelings when accompanied with a mask representing the character. 27. Cicero, accordingly, though he puts no entreaties into the mouth of Milo, but rather commends him to favor for his firmness of mind, has yet attributed to him words and lamentations not unworthy of a man of spirit; O labors, undertaken by me in vain! O deceitful hopes! O thoughts, cherished by me to no purpose!
Yet our supplications for pity should not be long; as it is observed, not without reason, that nothing dries sooner than tears. 28. For, since time lessens even natural sorrows, the representation of sorrow, which we produce in a speech, must lose its effect still sooner; and, if we are prolix in it, the hearer, wearied with tears, will recover his tranquillity, and return from the emotion which had surprised him to the exercise of his reason. 29. Let us not allow the impressions that we make, therefore, to cool, but, when we have raised the feelings of our audience to the utmost, let us quit the subject, and not expect that any person will long bewail the misfortunes of another. Not only in other parts of our speech, accordingly, but most of all in this part, our eloquence ought gradually to rise; for whatever does not add to that which has been said, seems even to take away from it, and the feeling which begins to subside soon passes away.
30. We may excite tears, however, rot only by words, but by acts; and hence it become a practice to exhibit persons on their trial in a squalid and pitiful garb, accompanied with their children and parents; hence, too, we see blood-stained swords produced by accusers, with fractured bones extracted from wounds, and garments spotted with blood; we behold wounds unbound, and scourged backs exposed to view. 31. The effect of such exhibitions is generally very strong, so that they fix the attention of the spectators on the act as if it were committed before their eyes.
The blood-stained toga of Julius Caesar, when exhibited in the forum, excited the populace of Rome almost to madness. It was known that he was killed; his body was even stretched on the bier; yet his robe, drenched in blood, excited such a vivid idea of the crime, that Caesar seemed not to have been assassinated, but to be subjected to assassination at that very moment. 32. But I would not for that reason approve of a device of which I have read, and which I have myself seen adopted, a representation, displayed in a painting or on a curtain, of the act at the atrocity of which the judge was to be shocked. For how conscious must a pleader be of his inefficiency, who thinks that a dumb picture will speak better for him than his own words? 33. But a humble garb, and wretched appearance, on the part as well of the accused as of his relatives, has, I know, been of much effect; and I am aware that entreaties have contributed greatly to save accused persons from death.
To implore mercy of the judges, therefore, by the defendant's dearest objects of affection, (that is to say, if he has children, wife, or parents,) will be of great advantage, as well as to invoke the gods, since such invocation seems to proceed from a clear conscience. 34. To fall prostrate, also, and embrace the knees of the judge, may be allowable at times, unless the character of the accused, and his past life and station, dissuade him from such humiliation; for there are some deeds that ought to be defended with the same boldness with which they were committed. But regard is to be had to the defendant's dignity, with such caution that an offensive confidence may not appear in him.
35. Among all arguments for a client, the most potent, in former times, was that by means of which Cicero seems chiefly to have saved Lucius Muraena from the eminent men who were his accusers, when he persuaded them that nothing was more advantageous for the state of things at that period than that Muraena should enter on his consulship the day before the Kalends of January. [Cicero pro Flacc. c. 39, says that it was by this argument that he saved Muraena.] But this kind of argument is wholly set aside in our days, as everything depends on the care and protection of our sovereign, and cannot be endangered by the issue of any single cause.
36. I have spoken of prosecutors and defendants, because it is on their trials that the pathetic is chiefly employed. But private causes [in private causes there was properly only petitor and unde petitur. In public causes, prosecutor and defendant] also admit both kinds of perorations, that which consists in a recapitulation of proofs, and that which depends on the excitement of the feelings, the latter having place whenever the accused party is in danger either as to station or as to character; for to attempt such tragic pleadings in trifling causes would be like trying to adjust the mask and buskins of Hercules on an infant.
37. Nor is it improper for me to intimate, that much of the success of a peroration depends, in my opinion, on the manner in which the defendant, who is presented before the judge, accommodates his demeanor to that of him who pleads in his favor; for ignorance, rusticity, stiffness, and vulgarity in a client sometimes damp a pleader's efforts; and against such untowardness he should take diligent precaution. 38. I have seen the behavior of clients quite at variance with the language of their advocate, showing no concern in their countenance, laughing without reason, and, by some act or look, making even others laugh, especially when anything was delivered at all theatrically.
39. On one occasion, an advocate led over a girl, who was said to be the sister of the adverse party, (for it was about that point that the controversy was,) to the opposite benches [the defendant was on the right hand seats; the accuser on the left. The advocate, therefore, transferred the girl from his own seat to that of his adversary, with a view to produce a moving scene], as if intending to leave her in the arms of her brother; but the brother, previously instructed by me, had gone off; and the advocate, although an eloquent man at other times, was struck dumb by his unexpected disappearance, and, with his ardor cooled, took his little girl back again. 40. Another advocate, pleading for a woman who was on her trial, thought it would have a great effect to exhibit the likeness of her deceased husband; but the image excited little else but laughter; for the persons whose business it was to produce it, being ignorant what a peroration meant, displayed it to view whenever the advocate looked towards them, and, when it was brought still more into sight at the conclusion, it destroyed the effect of all his previous eloquence by its ugliness, being a mere cast from an old man's dead body. [That such casts were taken among the ancients, appears from what Pliny says of Lysistratus, H. N. xxxv. 12.]
41. It is well known, too, what happened to Glycon [a Greek rhetorician, mentioned several times with respect by Seneca the father; for instance, p. 151, ed. Bip.], surnamed Spiridion: A little boy, whom he brought into court, and asked Why he was weeping, replied, "That he had had his ears pulled by his tutor." But nothing is better adapted to show the dangers attendant on perorations, than the story of Cicero about the Cepasii. 42. Yet all such mishaps are easily remedied by those who can alter the fashion of their speech; but those who cannot vary from what they have composed, are either struck dumb at such occurrences, or, as is frequently the case, say what is not true; for hence are such impertinences as these; He is raising his supplicating hands towards your knees, or, He is locked, unhappy man, in the embraces of his children, or, See, he recalls my attention, &c.; though the client does no single thing of all that his advocate attributes to him.
43. These absurdities come from the schools, in which we give play to our imagination freely and with impunity, because whatever we wish is supposed to be done; but reality does not allow of such suppositions, and Cassius Severus made a most happy retort to a young orator who said, "Why look you so sternly on me, Severus?" "I did not, I assure you," replied Cassius, "but you had written those words, I suppose, in your notes, and so here is a look for you," when he threw on him as terrible a glance as he could possibly assume.
4i. The student ought above all things to be admonished, also, that an orator should not attempt to excite tears, unless he be endowed with extraordinary genius; for as the effect on the feelings, if he succeeds, is extremely powerful, so, if he is unsuccessful, the result is vapidity; and a middling pleader had better leave the pathos to the quiet meditations of the judges; 45. for the look, tone, and even the very face, of a defendant called to stand before the judges, are a laughing-stock to such persons as they do not move. Let a pleader, therefore, in such a case, carefully measure and contemplate his strength, and consider how difficult a task he will have to undertake. In the result there will be no medium; he will either provoke tears or laughter.
46. But the business of a peroration is not only to excite feelings of pity, but also to deaden them, either by a set speech, which may recall the judges, when shaken by compassion, to considerations of justice, or by some jocose remark, as, Give the child a cake, that he may leave off crying; or, as a pleader said to his corpulent client, whose opponent, a mere child, had been carried round among the judges by his advocate, What shall I do? I cannot carry you.
47. But such pleasantries must have nothing of buffoonery; and I cannot
praise the orator, though he was among the most eminent of
his time, who, when some children were brought in at the peroration by the opposite party, threw some playthings
[talus; bones from the pastern of cloven footed animals, with
60. There are also perorations of a milder sort, in which we seek to pacify an adversary, if his character, for instance, be such that respect is due to him, or in which we give him some friendly admonition, and exhort him to concord; a kind of peroration that was admirably managed by Passienus [the husband of Agrippina, and step-father of Nero. He had been previously married to Domitia], when he pleaded the cause of his wife Domitia, to recover a sum of money, against her brother Aenobarbus, for, after he had enlarged on their relationship, he added some remarks on their fortune, of which both had abundance, saying, There is nothing of which you have less need than that about which you are contending.
51. But all these addresses to the feelings, though they are thought by some to have a place only in the exordium and the peroration, in which indeed they are most frequently introduced, are admissible also in other parts, but more sparingly, as it is from them that the decision of the cause must be chiefly evolved; but in the peroration, if anywhere, we may call forth all the resources of eloquence; 52. for if we have treated the other parts successfully, we are secure of the attention of the judges at the conclusion; where, having passed the rocks and shallows on our voyage, we may expand our sails in safety; and, as amplification forms the greatest part of a peroration, we may use language and thoughts of the greatest magnificence and elegance. It is then that we may shake the theatre, when we come to that with which the old tragedies and comedies were concluded, Plaudite, "Give us your applause."
53. But in other parts we must work upon the feelings, as occasion for working on any of them may present itself, for matters of a horrible or lamentable nature should never be related without exciting in the mind of the judges a feeling in conformity with them; and when we discuss the quality of any act, a remark addressed to the feelings may be aptly subjoined to the proof of each particular point. 54. And when we plead a complicated cause, consisting, it may be said, of several causes, we shall be under the necessity of using, as it were, several perorations; as Cicero has done in his pleading against Verres; for he has lamented over Philodamus [In Verr. i. 30], over the captains of the vessels [V. 45, 46], over the tortures of the Roman citizens [V. 53, 58], and over several other of that praetor's victims. 55. Some call these μερικοι επιλογοι, by which they mean parts of a divided peroration; but to me they seem not so much parts as species of perorations; for the very terms επιλογος and peroratio show, clearly enough, that the conclusion of a speech is implied.
1. But though the peroration is a principal part of judicial causes, and is chiefly concerned with the feelings, and though I have of necessity, therefore, said something of the feelings in treating of it, yet I could not bring the whole of that subject under one head, nor indeed should I have been justified in doing so. A duty of the orator, accordingly, still remains to be considered, which is of the greatest efficacy in securing his success, and is of far more difficulty than any of those already noticed, I mean that of influencing the minds of the judges, and of molding and transforming them, as it were, to that disposition which we wish them to assume. 2. With regard to this point, I have touched on a few particulars, such as the subject called forth, but so as rather to show what ought to be done than how we may be able to effect it. The nature of the whole subject must now be considered more deeply.
Throughout the whole of any cause, as I remarked, there is room for addresses to the feelings. The nature of the feelings is varied, and not to be treated cursorily; nor does the whole art of oratory present any subject that requires greater study. 3. As to other matters, moderate and limited powers of mind, if they be but aided by learning and practice, may invigorate them, and bring them to some fruit; certainly there are, and always have been, no small number of pleaders, who could find out, with sufficient skill, whatever would be of service to establish proofs; and such men I do not despise, though I consider that their ability extends no farther than to the communication of instruction to the judge; and, to say what I think, I look upon them as fit only to explain causes to eloquent pleaders; but such as can seize the attention of the judge, and lead him to whatever frame of mind he desires, forcing him to weep or feel angry as their words influence him, are but rarely to be found.
4. But it is this power that is supreme in causes; it is this that makes eloquence effective. As to arguments, they generally arise out of the cause, and are more numerous on the side that has the greater justice; so that he who gains his cause by force of arguments, will only have the satisfaction of knowing that his advocate did not fail him. 5. But when violence is to be offered to the minds of the judges, and their thoughts are to be drawn away from the contemplation of truth, then it is that the peculiar duty of the orator is required. This the contending parties cannot teach; this cannot be put into written instructions. Proofs in our favor, it is true, may make the judge think our cause the better, but impressions on his feelings make him wish it to be the better, and what he wishes he also believes.
6. For when judges begin to feel indignant, to favor, to hate, to pity, they fancy that their own cause is concerned; and, as lovers are not competent judges of beauty, because passion overpowers the sense of sight, so a judge, when led away by his feelings, loses the faculty of discerning truth; he is hurried along as it were by a flood, and yields to the force of a torrent, 7. What effect arguments and witnesses have produced, it is only the final decision that proves; but the judge, when his feelings are touched by the orator, shows, while he is still sitting and hearing, what his inclination is. When the tear, which is the great object in most perorations, swells forth, is not the sentence plainly pronounced? To this end, then, let the orator direct his efforts; this is his work, this his labor [hoc opus, hic labor est. Virg. Aen. vi. 128]; without this everything else is bare and meager, weak and unattractive; so true is it, that the life and soul of eloquence is shown in the effect produced on the feelings.
8. Of feelings, as we are taught by the old writers, there are two kinds; one, which the Greeks included under the term παθος, which we translate rightly and literally by the word "passion;" the other, to which they give the appellation ηθος, for which, as I consider, the Roman language has no equivalent term; it is rendered, however, by mores, "manners;" whence that part of philosophy, which the Greeks call ηθικη, is called moralis, "moral."
9. But when I consider the nature of the thing, it appears to me that it is not so much mores in general that is meant, as a certain proprietas morum, or "propriety of manners;" for under the word mores is comprehended every habitude of the mind. The more cautious writers, therefore, have chosen rather to express the sense than to interpret the words, and have designated the one class of feelings as the more violent, the other as the more gentle and calm; under παθος they have included the stronger passions, under ηθος the gentler, saying that the former are adapted to command, the latter to persuade, the former to disturb, the latter to conciliate.
10. Some of the very learned add that the effect of the παθος is but transitory; but while I admit that this is more generally the case, I consider that there are some subjects which require a permanent strain of παθος to run through the whole of them. Addresses however to the milder feelings require not less art and practice, though they do not call for so much energy and vehemence; and they enter into the majority of causes, or rather, in some sense. into all; 11. for as nothing is treated by the orator that may not be referred either to παθος or ηθος, whatever is said concerning honor or advantage, concerning things that may be done or may not be done, is very properly included under the term ethic.
Some think that commendation and palliation are the peculiar duties of the ηθος, and I do not deny that they fall under that head, but I do not allow that they are its only object. 19. I would also add that παθος and ηθος are sometimes of the same nature, the one in a greater and the other in a less degree, as love, for instance, will be παθος,and friendship ηθος, and sometimes of a different nature, as παθος, in a peroration, will excite the judges, and ηθος soothe them.
But I must develop more precisely the force of the term ηθος, as it seems not to be sufficiently intimated by the word itself 13. The ηθος, of which we form a conception, and which we desire to find in speakers, is recommended, above all, by goodness, being not only mild and placid, but for the most part pleasing and polite, and amiable and attractive to the hearers; and the greatest merit in the expression of it, is, that it should seem to flow from the nature of the things and persons with which we are concerned, so that the moral character of the speaker may clearly appear, and be recognized as it were, in his discourse.
14. This kind of ηθος ought especially to prevail between persons closely connected, as often as they endure anything from each other, or grant pardon, or satisfaction, or offer admonition, all which should be free from anger, or dislike. But the ηθος of a father towards his son, of a guardian towards his ward, of a husband towards his wife, (all of whom manifest affection for those with whom they are offended, and throw blame upon them by no other means than showing that they love them,) is very different from that which is shown by an old man towards a young one from whom he has received an insult, or from that of a man of rank towards an inferior who has been disrespectful to him, (for the man of rank may only be provoked, the old man must also be concerned.)
15. Of the same character, though less affecting to the feelings, are solicitations for forgiveness, or apologies for the amours of youth. Sometimes, too, a little gentle raillery of another person's heat [the heat which others exhibit in blaming or accusing those whom we have undertaken to defend] may have its source in the ηθος, though it does not proceed from such a source only. But what more peculiarly belongs to it is simulation of some virtue, of making satisfaction to some one, and ειρωνεια in asking questions, which means something different from that which it expresses. 16. Hence also springs that stronger appeal to the feelings, adapted to draw the dislike of the judge on an over-bearing adversary, when, by feigning submission to him, we imply a quiet censure on his presumption; for the very fact that we yield to him, proves him to be arrogant and insupportable; and orators who are fond of invective, or affect liberty of speech, are not aware how much more effective it is thus to throw odium on an opponent than to reproach him, since that kind of treatment renders him disliked, while reproach would bring dislike on ourselves. 17. The feeling arising from our love and regard for our friends and relatives is, we may say, of an intermediate character, being stronger than ηθος and weaker than παθος.
It is not without significance, too, that we call those exercises of the schools ηθη, in which we are accustomed to represent the characters of the rustic, the superstitious, the avaricious, the timid, agreeably to the thesis proposed for discussion. For as ηθη are manners, we, in imitating manners, adapt our speech to them.
18. All this species of eloquence, however, requires the speaker to be a man of good character, and of pleasing manners. The virtues which he ought to praise, if possible, in his client, he should possess, or be thought to possess, himself. Thus he will be a great support to the causes that he undertakes, to which he will bring credit by his own excellent qualities. But he who, while he speaks, is thought a bad man, must certainly speak ineffectively; for he will not be thought to speak sincerely; if he did, his ηθος, or character, would appear. 19. With a view to credibility, accordingly, the style of speaking in this kind of oratory should be calm and mild; it requires, at least, nothing of vehemence, elevation, or sublimity; to speak with propriety, in a pleasing manner, and an air of probability, is sufficient for it; and the middling sort of eloquence is therefore most suitable.
20. What the Greeks call παθος, and we, very properly, affectus, is quite different from that which is referred to the ηθος: and that I may mark, as exactly as I can, the diversity between them, I would say that the one is similar to comedy, the other to tragedy. This kind of eloquence is almost wholly engaged in exciting anger, hatred, fear, envy, or pity; and from what sources its topics are to be drawn is manifest to all, and has been mentioned by me in speaking of the exordium and peroration. 21. Fear, however, I wish to be understood in two senses, that which we feel ourselves, and that which we cause to others; and I would observe that there are two sorts of invidia, "dislike," one that makes invidum, "envious," and another that makes invidiosum, "disliked." The first is applied to persons, the second to things; and it is with this that eloquence has the greater difficulty; for though some things are detestable in themselves, as parricide, murder, poisoning, others require to be made to appear so. 22. Such representation is made, either by showing that what we have suffered is more grievous than evils ordinarily considered great; as in these lines of Virgil [Aen. iii. 321],
O felix una ante alias Priamea virgo,
O happy thou above all other maids,
(for how wretched was the lot of Andromache, if that of Polyxena, compared with hers, was happy!) 23. or by magnifying some injury that we have received, so as to make even injuries that are far less appear intolerable; as, If you had struck me, you would have been inexcusable; but you wounded me. But those points I shall consider with more attention, when I come to speak of amplification. In the mean time, I shall content myself with observing that the object of the pathetic is not only that those things may appear grievous and lamentable, which in reality are so, but also that those which are generally regarded as inconsiderable, may seem intolerable; as when we say that there is more injury in a verbal insult than in a blow, or that there is more punishment in dishonor than in death.
24. For such is the power of eloquence, that it not only impels the judge to that to which he is led by the nature of the matter before him, but excites feelings which are not suggested by it, or strengthens such as are suggested. This is what the Greeks call δεινωσις, language adding force to things unbecoming, cruel, detestable; in which excellence, more than in any other, Demosthenes showed his extraordinary power.
25. If I thought it sufficient merely to adhere to the precepts that have been delivered, I should do enough for this part of my work by omitting nothing that I have read or learned, that is at all reasonable, on the subject; but it is my intention to open the deepest recesses of the topic on which we have entered, and to set forth what I have acquired, not from any teacher, but from my own experience, and under the guidance of nature herself. 26. The chief requisite, then, for moving the feelings of others, is, as far as I can judge, that we ourselves be moved; for the assumption of grief, and anger, and indignation, will be often ridiculous, if we adapt merely our words and looks, and not our minds, to those passions.
For what else is the reason that mourners, when their grief is fresh at least, are heard to utter exclamations of the greatest expressiveness, and that anger sometimes produces eloquence even in the ignorant, but that there are strong sensations in them, and sincerity of feeling? 27. In delivering, therefore, whatever we wish to appear like truth, let us assimilate ourselves to the feelings of those who are truly affected, and let our language proceed from such a temper of mind as we would wish to excite in the judge. Will he grieve, let me ask, who shall hear me, that speak for the purpose of moving him, expressing myself without concern? Will he he angry, if the orator who seeks to excite him to anger, and to force him to it, shows no like feeling? Will he shed tears at the words of one who pleads with dry eyes?
28. Such results are impossible. We are not burned without fire, or wet without moisture; nor does one thing give to another the color which it has not itself. Our first object must be, therefore, that what we wish to impress the judge may impress ourselves, and that we may be touched ourselves before we begin to touch others.
29. But by what means, it may be asked, shall we be affected, since our feelings are not in our own power? I will attempt to say something also on this point. What the Greeks call φαντασιας we call visiones; images by which the representations of absent objects are so distinctly represented to the mind, that we seem to see them with our eyes, and to have them before us. 30. Whoever shall best conceive such images, will have the greatest power in moving the feelings. A man of such lively imagination some call ευφαντασιωτος, being one who can vividly represent to himself things, voices, actions, with the exactness of reality; and this faculty may readily he acquired by ourselves if we desire it.
When, for example, while the mind is unoccupied, and we are indulging in chimerical hopes, and dreams, as of men awake, the images of which I am speaking beset us so closely, that we seem to be on a journey, on a voyage, in a battle, to be haranguing assemblies of people, to dispose of wealth which we do not possess, and not to be thinking but acting, shall we not turn this lawless power of our minds to our advantage? 31. I make a complaint that a man has been murdered; shall I not bring before my eyes everything that is likely to have happened when the murder occurred? Shall not the assassin suddenly sally forth? Shall not the other tremble, cry out, supplicate, or flee? Shall I not behold the one striking, the other falling? Shall not the blood, and paleness, and last gasp of the expiring victim, present itself fully to my mental view?
33. Hence will result that εναργεια, which is called by Cicero illustration and evidentness, which seems not so much to narrate as to exhibit; and our feelings will be moved not less strongly than if we were actually present at the affairs of which we are speaking. Are not the following descriptions to be numbered among representations of this nature?
Excussi manibus radii, revolutaque pensa:
33. —Levique patens in pectore vulnus:
And that of the horse at the funeral of Pallas,
Has not the same poet also conceived with the deepest feeling the idea of a man's dying moments, when he says
—Et dulces moriens reminiscitur Argos,
34. Where there is occasion for moving compassion, too, we must endeavor to believe, and to feel convinced, that the evils of which we complain have actually happened to ourselves. We must imagine ourselves to be those very persons for whom we lament as having suffered grievous, undeserved, and pitiable treatment; we must not plead their cause as that of another, but must endeavor to feel for a time their sufferings; and thus we shall say for them what we should in similar circumstances say for ourselves. 35. I have often seen actors, both in tragedy and comedy, when they laid aside their mask after going through some distressing scene, quit the theatre weeping; and if the mere delivery of what is written by another can add such force to fictitious feelings, what effect ought we to produce, when we should feel what we express, and may be moved at the condition of those who are on their trial?
36. In the schools, also, it would be proper for learners to feel moved with the subjects on which they speak, and imagine that they are real, especially as we discuss matters there more frequently as parties concerned than as advocates. We assume the character of an orphan, of a person that has been shipwrecked, or one that is in danger of losing his life; but to what purpose is it to assume their characters, if we do not adopt their feelings? This art I thought should not be concealed from the reader, the art by which I myself (whatever is or was my real power) conceive that I have attained at least some reputation for ability; and I have often been so affected, that not only tears, but paleness, and sorrow, similar to real sorrow, have betrayed my emotions.
1. Very different from this is the talent which, by exciting laughter in the judge, dispels melancholy affections, diverting his mind from too intense application to the subject before it, recruiting at times its powers, and reviving it after disgust and fatigue.
2. How difficult it is to succeed in that way, even the two greatest of all orators, the one the prince of Greek and the other of Latin eloquence, afford us sufficient proof. Most think that the faculty was altogether wanting to Demosthenes [Cicero, Orat. c. 26, in noticing the general opinion that Demosthenes wanted humor, says that he had much urbanitas; and Plutarch in his Life of Demosthenes mentions some of his jests], and moderation in the management of it to Cicero. Demosthenes, certainly, cannot be thought to have been unwilling to cultivate it, as his jests, though very few, and by no means correspondent to his other excellences, plainly show that jocularity was not disliked by him, but that it had not been liberally bestowed on him by nature. 3. But as for our own countryman, he was regarded, not only when not engaged in pleading, but even in his public speeches, as too much an affecter of pleasantry. To myself, whether I judge rightly in that respect, or whether I err through immoderate admiration for our great master of eloquence, there appears to have been an extraordinary vein of delicate wit in him.
4. For in his common conversation, in disputes, and in examining witnesses, he uttered more jokes than any other orator; the dull jests in his orations against Verres he attributed to others, repeating them as a part of his evidence; and the more vulgar they are, the more probable is it that they were not of his invention, but had been circulated among the people, 5. I could wish, too, that his freedman Tiro, or whoever it was that published the three books of his jests, had been more sparing as to their number, and had used greater judgment in selecting than industry in gathering; for he would then have been less exposed to calumniators, who, however, as in regard to all the productions of his genius, can more easily discover what may be taken away than what may be added.
6. But what causes the chief difficulty in respect to jesting is, that a saying adapted to excite laughter is generally based on false reasoning, and has always something low in it; it is often purposely sunk into buffoonery; it is never honorable to him who is the subject of it; while the judgments of the hearers with regard to it will be various, as a thing which is estimated, not by any certain reasoning, but by some impulse, I know not whether inexplicable, of the mind. 7. Certainly I think that it has not been sufficiently explained by any one, though many have attempted explanations, whence laughter proceeds, which is excited, not only by actions or words, but sometimes even by a touch of the body.
Besides, it is not by one kind of jests only that it is produced; for not merely witty and agreeable acts or sayings, but what is said or done foolishly, angrily, fearfully, are equally the objects of laughter; and thus the origin of it is doubtful, as laughter is not far from derision. 8. Cicero has said [De Orat. ii. 59] that it has its seat in some deformity or offensiveness, and if this is made to appear in others, the result is called raillery, but if what we say recoils on ourselves, it is but folly.
Though laughter may appear, however, a light thing, as it is often excited by buffoons, mimics, and even fools, yet it has power perhaps more despotic than any thing else, such as can by no means be resisted. 9. It bursts forth in people even against their will, and extorts a confession of its influence not only from the face and the voice, but shakes the whole frame with its vehemence. It often changes, too, as I said, if the tendency of the greatest affairs, as it very frequently dissipates both hatred and anger. 10. Of this the young Tarentines afford an instance, who, having spoken, at a banquet, with great freedom about king Pyrrhus, and being called before him to account for their conduct, when the fact could neither be denied nor justified, saved themselves by a fortunate laugh and jest; for one of them said, Ah! if our flagon had not failed us, we should have murdered you; and by this pleasantry the whole odium of the charge was dispelled.
11. But though I should not venture to say that this talent, whatever it is, is certainly independent of art, (for it may be cultivated by observation, and rules relating to it have been composed both by Greek and Latin writers,) yet I may fairly assert that it chiefly depends on nature and opportunity. 12. Nature, moreover, has influence in it, not only so far that one man is more acute and ready than another in inventing jokes, (for such facility may certainly be increased by study,) but that there is in certain persons a peculiar grace in their manner and look, so that the same things that they say, would, if another were to say them, appear less happy.
13. As to opportunity, and circumstances, they have such effect, that not only unlearned persons, but even peasants, when favored by them, make witty repartees to such as are first to address them; for all facetiousness appears to greater advantage in reply than in attack. [So Cicero de Orat. ii. 56, sub fin.] 14. It adds to the difficulty, that there is no exercise in this department, nor any instructors in it. It is true that at convivial meetings, and in the familiar intercourse of life, many jesters are to be met; but their number arises from the circumstance that men improve in jesting by daily practice; the wit that suits the orator is rare, and is not cultivated on its own account, but sent for practice to the school of the world.
15. Yet there would be no objection to subjects being invented for this exercise, so that fictitious causes might be pleaded with a mixture of jesting, or particular theses might be proposed to youth exclusively for such practice. 16. Even those very pleasantries, which are and are called jokes, and in which we are accustomed to indulge on certain days of festal license [as the Bacchanalia and Saturnalia, at which wits contended in uttering jokes for prizes], might, if they were produced with some degree of method, or if some serious matter were mingled with them, prove of considerable advantage to the orator; but now they are merely the diversion of youth, or of people amusing themselves.
17. In reference to the subject of which we are treating, we commonly use several words to express the same thing; but, if we consider them separately, each will be found to have its own peculiar signification. The term urbanity [urbanitas] is applied to it, by which is meant, I observe, a style of speaking which exhibits in the choice of words, in tone, and in manner, a certain taste of the city, and a tincture of erudition derived from conversation with the learned; something, in a word, of which rusticity is the reverse. 18. That that is graceful [venustum], which is expressed with grace and agreeableness, is evident. Salt [salsum] we understand in common conversation only as something to make us laugh; but this notion is not founded in nature; though certainly whatever is to make us laugh must be salt. Cicero [Orat. c. 26] says that everything salt is in the taste of the Attics, but not because the Attics were most of all people inclined to laughter; and when Catullus [Epigr. in Quintiam et Lesbiam] says of a woman, There is not a grain of salt in her whole body, he does not mean that there is nothing in her body to excite laughter.
19. That therefore will be salt which is not insipid [insulsum]; and salt will be a natural seasoning of language, which is perceived by a secret taste, as food is tasted by the palate, and which enlivens discourse and keeps it from becoming wearisome. As salt, too, mixed with food rather liberally, but not so as to be in excess, gives it a certain peculiar relish, so salt in language has a certain charm, which creates in us a thirst, as it were, for hearing more. 20. Nor do I conceive that the facetum is confined solely to that which excites laughter; for, if such were the case, Horace [Sat. i. 10, 44] would not have said that "the facetum in poetry had been granted by nature to Virgil."
I think it rather a term for grace and a certain polished elegance; and it is in this sense that Cicero in his letters quotes these words of Brutus: Nae illi pedes faceti ac deliciis ingredienti molles, "Graceful indeed are her feet, and move gently and with delicacy as she walks;" an expression similar to that of Horace, Molle atque facetum Virgilio. 21. Jest [jocus] we understand as something contrary to that which is serious; for to feign, to intimidate, and to promise, are sometimes modes of jesting. Dicacitas [jocularity; jocular attacks on individuals] is doubtless derived from dico, and is common to every species of jesting, but it properly signifies language that attacks a person in order to raise a laugh against him. Thus they say that Demosthenes was urbanus, "witty," but deny that he was dicax, "gifted with the faculty of humorous raillery."
22. But what belongs properly to the subject of which we are treating is that which excites laughter; and thus all discussion on the topic is entitled by the Greeks περι γελοιου. Its primary division is the same as that of every other kind of speech, as it must lie either in things or in words. 23. The application of it is very simple; for we try either to make others the subject of laughter, or ourselves, or something that is foreign to both. What proceeds from others we either blame, or refute, or make light of, or rebut, or elude.
As to what concerns ourselves, we speak of it with something of ridicule, and, to adopt a word of Cicero's [De Orat. ii. 71], utter subabsurda, "apparent absurdities;" for the same things that, if they fell from us unawares, would be silly, are thought, if we express them with dissimulation, extremely humorous. 24. The third kind, as Cicero also remarks, consists in deceiving expectation, in taking words in a sense different from that in which the speaker uses them, and in allusions to other things, which affect neither ourselves nor others, and which I therefore call intermediate or neutral.
25. In the second place, we either do, or say, things intended to excite a laugh. Laughter may be raised by some act of humor, with a mixture, sometimes, of gravity, as Marcus Caelius [the breaking of the chair of Caelius by Isauricus, when he was flattering the people with the hopes of an abolition of debts, is mentioned by Dio Cassius, lib. xiii] the praetor, when the consul Isauricus broke his curule chair, had another fixed with straps, as the consul was said to have been once beaten with a strap by his father; sometimes without due regard to decency, as in the story of Caelius's box [see Cic. pro Cael. c. 25-29], which is becoming neither to an orator nor to any man of proper character. 26. The same may be said of looks and gestures to provoke laughter, from which there may certainly be some amusement, and so much the more when they do not seem to aim at raising a laugh; for nothing is more silly than what is offered as witty. Gravity, however, adds much to the force of jests, and the very circumstance that he who utters a joke does not laugh, makes others laugh; yet sometimes a humorous look, and cast of countenance, and gesture, may be assumed, provided that certain bounds are observed.
27. What is said in jest, moreover, is either gay and cheerful, as most of the jokes of Aulus Galba [whether he was the Galba mentioned by Juvenal, v. 4, by Martial, i. 42, x. 20, and by Plutarch, vol. ii. p. 700 A., it is vain to conjecture]; or malicious, as those of the late Junius Bassus; or bitter, as those of Cassius Severus; or inoffensive, as those of Domitius Afer. But it makes a great difference where we indulge in jests. At entertainments, and in common conversation, a more free kind of speech is allowed to the humbler class of mankind, amusing discourse to all. 28. To offend we should always be unwilling; and the inclination to lose a friend rather than a joke should be far from us. In the very battles of the forum I should wish it to be in my power to use mild words, though it is allowed to speak against our opponents with contumely and bitterness, as it is permitted us to accuse openly, and to seek the life of another according to law; but in the forum, as in other places, to insult another's misfortune is thought inhuman, either because the insulted party may be free from blame, or because similar misfortune may fall on him who offers the insult.
A speaker is first of all to consider, therefore, what his own character is; in what sort of cause he is to speak; before whom; against whom; and what he should say. 29. Distortion of features and gesture, such as is the object of laughter in buffoons, is by no means suited to an orator. Scurrilous jests, too, and such as are used in low comedy, are utterly unbecoming his character. As for indecency, it should be so entirely banished from his language, that there should not be the slightest possible allusion to it; and if it should be imputable, on any occasion, to his adversary, it is not in jest that he should reproach him with it. 30. Though I should wish an orator, moreover, to speak with wit, I should certainly not wish him to seem to affect wit; and he must not therefore speak facetiously as often as he can, but must rather lose a joke occasionally, than lower his dignity.
31. No one will endure a prosecutor jesting in a cause of a horrible, or a defendant in one of a pitiable, nature. There are some judges also of too grave a disposition to yield willingly to laughter. It will sometimes occur, too, that reflections which we make on our adversary may apply to the judge, or even to our own client. 32. Some orators have been found indeed, who would not lose a jest that might recoil even on themselves; as was the case with Sulpicius Longus, who, though he was himself an ugly man, remarked that a person, against whom he appeared on a trial for his right to freedom [judicio liberali, in which the point to be tried is whether the party is to be a slave or free], had not even the face of a free man; when Domitius Afer, in reply to him, said, On your conscience, Longus, do you think that he who has an ugly face cannot he a free man?
33. We must take care, also, that what we say of this sort may not appear petulant, insulting, unsuitable to the place and time, or premeditated and brought from our study. As to jests on the unfortunate, they are, as I said above, unfeeling. Some persons, too, are of such established authority, and such known respectability, that insolence in addressing them could not but hurt ourselves. 34. Regarding our friends a remark has already been made; and it concerns the good sense, not merely of an orator, but of every reasonable being, not to assail in this way one whom it is dangerous to offend, lest bitter enmity, or humiliating satisfaction, be the consequence. Raillery is also indulged injudiciously that applies to many; if, for example, whole nations, or orders, or conditions, or professions, be attacked by it. Whatever a good man says, he will say with dignity and decency; for the price of a laugh is too high, if it is raised at the expense of propriety.
35. Whence laughter may be fairly excited, and from what topics it is generally drawn, it is very difficult to say; for if we would go through all the species of subjects for it, we should find no end, and should labor in vain. 36. For the topics from which jests may be elicited, are not less numerous than those from which what we call thoughts may be derived [see Cicero de Orat. ii. 61], nor are they of a different nature, since in jocularity also there is invention and expression, and a display of the force of eloquence, as consisting partly in the choice of words, and partly in the use of figures of speech.
37. But I may say in general that laughter is educed either from corporeal peculiarities in him against whom we speak, or from his state of mind, as collected from his actions and words, or from exterior circumstances relating to him; for under these three heads fall all kinds of animadversion, which, if applied severely, is of a serious, if lightly, of a ludicrous character. Such subjects for jests are either pointed out to the eye, or related in words, or indicated by some happy remark. 38. But an opportunity rarely offers of bringing them before the eye, as Lucius Julius did, who having said to Helvius Mancia [Cicero de Orat. ii. 66], when he was repeatedly clamoring against him, I will now show what you are like, and Mancia persisting, and asking him to show him what he was like, he pointed with his finger to the figure of a Gaul painted on a Cimbrian shield, which Mancia was acknowledged exactly to resemble; there were shops round the forum, and the shield was hung over one of them as a sign.
39. To relate a jocular story is eminently ingenious, and suitable to an orator; as Cicero in his speech for Cluentius [C. 21] tells a story about Cepasius and Fabricius, and Marcus Caelius that of the contention of Decimus Laelius and his colleague when they were hastening into their province. But in all such recitals elegance and grace of statement is necessary, and what the orator adds of his own should be the most humorous part of it. 40. So the retirement of Fabricius from the court is thus set off by Cicero [Pro Cluent c. 21]: When Cepasius, therefore, thought that he was speaking with the utmost skill, and had drawn forth those solemn words from the innermost stores of his art, Look on the old age of Caius Fabricius, when, I say, he had, to embellish his speech, repeated the word look several times, he himself looked, but Fabricius had gone off from his seat with his head hanging down, and what he adds besides, (for the passage is well known,) when there is nothing in reality told but that Fabricius left the court.
41. Caelius also has invented every circumstance of his narrative most happily, and especially the last: How he, in following, crossed over, whether in a ship, or a fisherman's boat, nobody knew; but the Sicilians, a lively and jocular sort of people, said that he took his seat on a dolphin, and sailed across like another Arion.
42. Cicero [Orat. c. 26] thinks that humor is shown in recital, and jocularity in smart attacks or defenses. Domitius Afer showed extraordinary wit in narration; and many stories of this kind are to be found in his speeches; but books of his shorter witticisms have also been published. 43. Raillery may also be displayed not in mere shooting of words, as it were, and short efforts of wit, but in longer portions of a pleading, as that which Cicero relates of Crassus against Brutus in his second book De Oratore [C. 55], and in some other passages [Pro Cluent. c. 51].
44. When Brutus, in accusing Cneius Plancus, had shown, by the mouths of two readers, that Lucius Crassus, the advocate of Plancus, had recommended, in his speech on the colony of Narbonne, measures contrary to those which he had proposed in speaking on the Servilian law, Crassus on his part called up three readers, to whom he gave the Dialogues of Brutus's father to read, and as one of those dialogues contained a discourse held on his estate at Privernum, another on that at Alba, and another on that at Tibur, he asked Brutus where all those lands were. But Brutus had sold them all, and, for having made away with his father's estates, was considered to have dishonored himself. Similar gratification from narrative attends on the repetition of apologues, and sometimes on historical anecdotes.
45. But the brevity observed in jocular sayings has something more of point and liveliness. It may be employed in two ways, in attack or in reply; and the nature of the two is in a great degree the same; for nothing can be said in aggression that may not also be said in retort. 46. Yet there are some points that seem to belong more peculiarly to reply. What is said in attack, those who are heated with anger often utter; what is said in rejoinder, is generally produced in a dispute, or in examining witnesses. But as there are innumerable topics from which jokes may be drawn, I must repeat that they are not all suitable for the orator. 47. In the first place, those obscure jokes do not become him, which depend on double meanings, and are captious as the jests of an Atellan farce [the Atellanae fabulae were a species of farce or low comedy, having their name from Atella, a town of the Osci, where they had their origin. Livy, vii. 2]; nor such as are uttered by the lowest class of people, and which out of ambiguity produce obloquy; nor even such as sometimes fell from Cicero, though not in his pleadings, as when he said, for instance, on occasion of a candidate for office, who was reported to be the son of a cook, soliciting a vote from another person in his presence, Ego quoque tibi favebo [the jest consists in the play on quoque for coque. "I also will support you," or, "I, cook, will support you."].
48. Not that all words which have two meanings are to be excluded from our speech, but because they rarely have a good effect unless when they are well supported by the matter. Of which sort there is not only a joke of Cicero, almost scurrilous, on Isauricus, the same that I mentioned above, I wonder what is the reason that your father, the most steady of men, left us a son of so varied a character as yourself, 49. but another excellent jest of his, of the same nature, uttered when the accuser of Milo advanced in proof of an ambush having been laid for Clodius, that Milo had turned aside to Bovillae before the ninth hour, to wait till Clodius should leave his villa, and asked several times when Clodius was killed, Cicero replied, Late; a repartee which is alone sufficient to prevent this sort of jests from being wholly rejected. 50. Nor do ambiguous words only signify more things than one, but even things of the most opposite nature; as Nero said of a dishonest slave, That no one was more trusted in his house; that nothing was shut or sealed up from him [Cicero de Orat. ii. 61].
51. Such ambiguity may be carried so far as to be even enigmatical; as in the jest of Cicero on Pletorius, the accuser of Fonteius, whose mother, he said, had had a school while she was alive, and masters after she was dead; the truth was, that women of bad character were said to have frequented her house while she was alive, and that her goods were sold after her death; so that school is here used metaphorically, and masters ambiguously. [The word magistri, "masters," as appears from several passages in Cicero's letters, was a term applied to those who had the charge of property sold for debt under the praetor's edict.]
52. This kind of jest often falls into metalepsis [a figure by which the consequent is put for that which precedes]; as Fabius Maximus [he was consul A.U.C. 743; Tacit. Ann. i. 5], remarking on the smallness of the presents which were given by Augustus to his friends, said that his congiaria were heminaria, congiarium signifying both a gratuity and a measure, and the word heminarium being employed to show the littleness of the gratuities. [The word congiarium is from congius, a liquid measure containing nearly six pints English, which, when wine or oil was distributed on certain occasions among the people, was the quantity usually given to each person. Liv. xxv. 2. The hemina was the twelfth part of the congius.] 53. This sort of jest is as poor as is the play upon names, by adding, taking away, or altering letters; as I have seen, for instance, a man named Acisculus called Pacisculus [from paciscor, to make a bargain], because of some bargain that he had made; another named Placidus called Acidus for the sourness of his temper; and Tullius, because he was a thief, called Tollius [from tollo, to take away]. 54. But pleasantries of this nature succeed better in allusions to things than to names.
Thus Domitius Afer very happily said of Manlius Sura, who, while he was pleading, darted to and fro, leaped up, tossed about his hands, and let fall and re-adjusted his toga, Non agere sed satagere, that "he was not merely doing business in the pleading, but over-doing it." The employment of the word satagere is a very good joke in itself, though there was no resemblance to any other word. 55. Such jests are made by adding or taking away an aspirate, or by joining two words together; modes in general equally poor, but sometimes passable. Similar, too, is the nature of all jokes that are made upon names; many of which are repeated, as the conceits of others, by Cicero against Verres; in one place, that, as he was called Verres, he was destined verrere omnia, "to sweep away everything;" in another, that being Verres, "a boar-pig," he had been more troublesome to Hercules, whose temple he had pillaged, than the boar of Erymanthus [In Verr. iv. 43]; in another, that he was a bad Sacerdos who had left so vicious a Verres; because Verres had been the successor of Sacerdos [In Verr. i. 46]. 56. Fortune, however, sometimes affords an opportunity of indulging happily in a jest of this kind; as Cicero, in his speech for Caecina [C. 10], remarked upon a witness named Sextus Clodius Phormio, that he was not less black, or less bold, than the Phormio of Terence.
57. But jests which are derived from peculiarities in things are more spirited and elegant. Resemblances are most conducive to the production of them, especially if the allusion be to something meaner and of less consideration; a sort of pleasantry to which the ancients were attached, who called Lentulus Spinther [from his resemblance to an inferior actor of that name. Val. Max. ix. 14, 4] and Scipio Serapion [because he resembled a victimarius, or dealer in animals for sacrifice, of that name. Val. Max. ix. 14, 3]. 58. But such jests are taken not only from human beings, but from other animals; thus, when I was young, Junius Bassus, a man of extraordinary jocularity, was called a white ass; and Sarmentus [we are made acquainted with Sarmentus by Horace, Sat. i. 5. That he was a favorite of Augustus, appears from Plutarch, vol ii. p. 943], or Publius Blessus, called Junius, a black man, lean and crook-backed, an iron clasp [from his bent figure]. This mode of exciting laughter is now very common. 59. Such comparisons are sometimes made undisguisedly, and sometimes insinuated in the way of inference. Of the former sort is the remark of Augustus, who, when a soldier was timidly holding out a memorial to him, said, Do not shrink back, as if you were offering a piece of money to an elephant.
60. Jokes sometimes rest on some fanciful comparison: as that which Vatinius made, when, being on his trial, and Calvus pleading against him, he wiped his forehead with a white handkerchief, and the accuser made the circumstance the subject of a reflection on him. Although I lie under an accusation, returned Vatinius, I eat white bread. [Persons under accusation generally wore a dark dress.] 61. An application of one thing to another, from some similarity between them, is still more ingenious; as when we adapt, as it were, to one purpose, that which is intended for another. This may very well be called an imagination; as, for instance, when, at one of Caesar's triumphs, models in ivory of the towns which he had taken were carried in procession, and, a few days after, at a triumph of Fabius Maximus [Caesar's lieutenant-general in Spain; consul A.U.C. 709], models in wood of those which Fabius had taken were exhibited, Chrysippus [Chrysippus Vettius, the freedman of Cyrus, and as architect, ae he appears to have been in Gaul, and was perhaps in the retinue of Caesar. See Cicero ad Div. vii. 11; ad Att. xiv. 9] observed that Fabius's wooden models were the cases of Caesar's ivory ones.
That was something similar which Podo [the poet Caius Podo Albinovanus] said of a mirmillo, who was pursuing a retiarius, but did not strike him, He wishes to take him alive. 62. Similitude is united with ambiguity; as Aulus Galba said to a player at ball who was standing to catch the ball very much at his ease, You stand as if you were one of Caesar's candidates [a candidate for office recommended by the emperor was consequently sure of being elected]; for in the word "stand" there is ambiguity; the "ease" is similar in both cases. This it is sufficient to have noticed. 63. But there is very frequently a mixture of different kinds of pleasantry; and that indeed is the best which is the most varied.
A like use may be made of things that are dissimilar. A
Roman knight, to whom, as he was drinking at the public
games [after the time of Augustus this practice became
common enough; see the commentators on Martial,
i. 12, 27], Augustus had sent an attendant with the message, If
I wish to dine, I retire to my house, replied, You, Augustus, are
not afraid of losing your place. 64. From contraries there
are many kinds of jokes. It was not the same sort of jest
with which Augustus addressed an officer whom he dismissed
with dishonor [see Macrob. Sat. ii. 4, whence we learn that the officer was
I will add a third, though respect for its author prevents me from giving his name, You are more libidinous than any eunuch; where doubtless expectation is deceived by something contrary to that was looked for. Of similar origin, though different from any of the preceding, is the observation of Marcus Vestinius, when he was told that some nasty follow was dead, He will then at length, said he, cease to stink. 65. But I should overload my book with examples, and make it similar to such as are composed to excite laughter, if I should go through all the sorts of jests uttered by the ancients.
From all modes of argument, there is the same facility for extracting jokes. Thus Augustus, in speaking of two actors in pantomime, who vied with each other in gesticulation, employed definition, calling the one a dancer, and the other an interrupter of dancing. 66. Galba used distinction, when he replied to one who asked him for his cloak. You cannot have it, for, if it does not rain, you will not want it, and, if it does rain, I shall wear it myself. From genus, species, peculiarities, differences, connections, adjuncts, consequents, antecedents, contrarieties, causes, effects, comparisons of things equal, greater, and less, similar matter for jesting is extracted. 67. It is found, too, in all the figures of speech.
Are not many jokes made καθ υπερβολην, by the aid of hyperbole? Cicero gives us one example, in reference to a very tall man, that he had struck his head against the arch of Fabius [Cicero de Orat. ii. 66. The arch of Fabius was so called from having been built by Fabius Allobrogicus]; and another is afforded in what Oppius said of the family of the Lentuli, of which the children were invariably shorter than their parents, that it would by propagation come to nothing. 68. As for irony, is it not in itself, when employed very gravely, a species of joking?
Domitius Afer used it very happily, when he said to Didius Gallus, who had made great solicitations for a province, and, after obtaining it, complained as if he were forced to accept it. Well, do something for the sake of the commonwealth. Cicero, too, employed it very sportively, on a report of the death of Vatinius, for which the authority was said to be far from certain, In the meantime, said he, I will enjoy the interest [if the capital on which interest is paid me, be but imaginary, I may still make the most of the interest]. 69. Cicero used also to say, allegorically, of Marcus Caelius, who was better at accusing than defending, that he had a good right-hand, but a bad left [the sword was held in the right hand, to attack; the shield in the left, to defend]. Julius used the antonomasia, when he said Ferrum Accium Noevium incidisse.
70. Jocularity also admits all figures of thought, called by the Greeks σχηματα διανοιας, under which some have ranked the various species of jests; for we ask questions, and express doubt, and affirm, and threaten, and wish; and we make some remarks as if in compassion, and others with anger. But everything is jocular that is evidently pretended.
71. To laugh at foolish remarks is very easy; for they are ridiculous in themselves; but some addition of our own increases the wit. Titus Maximus foolishly asked Carpathius as he was going out of the theatre, Whether he had seen the play; when Carpathius made the question appear more ridiculous by replying, No, for I was playing at ball in the orchestra.
72. Refutation admits of jesting either in the form of denial, retort, defense, or extenuation. Manius Curius made a good repartee by way of denial; for when his accuser had had him painted on a curtain [we must suppose that the curtain was divided into compartments, and that some scene of his life was represented in each compartment], everywhere either stripped and in prison in consequence of gambling, or being redeemed by his friends, Was I, then, he replied, never successful?
73. Retort we use sometimes undisguisedly, as Cicero in reply to Vibius Curius, who was telling falsehood concerning his age, said, Then, when we declaimed in the schools together, you were not born; sometimes with feigned assent, as the same orator said to Fabia, Dolabella'e wife, who observed that she was thirty years old, No doubt, for I have heard you say so these twenty years. 74. Sometimes in place of what you deny, something more cutting is happily substituted: as Junius Bassus, when Domitia, the wife of Passienus, complained that he had said, as a charge of meanness against her, that she used to sell old shoes, replied, No, indeed, I never said any such thing; I said that you used to buy them. A defense a Roman knight made with some humor, replying to Augustus, who reproached him with having eaten up his patrimony, I thought it was my own.
75. Of extenuation there are two modes; a person may make light of another's claims to indulgence, or of some boast that he utters. Thus Caius Caesar [Caius Julius Caesar Strabo, cousin to the dictator's father] said to Pomponius, who was showing a wound which he had received in his mouth in the sedition of Sulpicius, and which he boasted that he had received in fighting for Caesar, When you are fleeing, never look back. Or it may extenuate some fault imputed to us, as Cicero said to those who reproached him with having at sixty years of age married Publilia [whom he married after he divorced Terentia. Ad Att. xii. 32] a virgin, To-morrow she will be a woman. 76. Some call this kind of jest consequent, and similar to that of Cicero when he said that Curio, who always began his pleadings with an excuse for his age, would find his exordium every day more easy, because the reply seems naturally to follow and attach itself to the remark.
77. But one kind of extenuation is a suggestion of a reason, such as Cicero gave to Vatinius, who, having the gout, but wishing to appear improved in health, said that he could walk two miles a-day, The days, rejoined Cicero, are very long. Augustus made a similar answer to the people of Tarraco, who told him that a palm-tree had grown on his altar in their city: It shows, said he, how often you make a fire on it. 78. Cassius Severus transferred a charge from himself to others; for when he was reproached by the praetor that his advocates had insulted Lucius Varus an Epicurean, a friend of Caesar, he replied, I do not know what sort of characters committed the insult, but suppose that they must have been Stoics.
Of rebutting a jest there are many ways; the most happy is that which is aided by some resemblance in the words, as Trachalus, when Suellius said to him, If this is so, you go into exile, replied, And if it is not so, you return into exile. 79. Cassius Severus, when a person made it a charge against him that Proculeius had forbidden him his house, eluded the charge by replying, Do I ever then go to Proculeius's house? Thus one jest is eluded by another; as the Emperor Augustus, when the Gauls had made him a present of a collar of a hundred pounds weight, and Dolabella had said in jest, though with some solicitude as to the event of the jest, Distinguish me, General, with the honor of the collar, replied, I had rather distinguish you with the honor of a civic crown [which was made of oak leaves]; 80. and one falsehood may also be eluded by another; as when a person said in the hearing of Galba that he had bought in Sicily for one victoriatus [a small coin, the half of a denarius] a lamprey five feet long, Galba rejoined that it was not at all surprising, as they grew so long there that the fishermen used them for ropes.
81. Opposed to the negative is the pretence of confession, which also has much wit. Thus Domitius Afer, when he was pleading against a freedman of Claudius Caesar, and a person of the same condition as the party against whom he was pleading called out from the opposite side of the court, Do you then always speak against the freedmen of Caesar? replied, Always, and yet, by Hercules, I produce no effect [it is known from Tacitus, Suetonius, and Dio Cassius, how much Claudius was under the government of his freedmen]. Similar to confession is not to deny what is alleged, though it be evidently false, and though opportunity for an excellent answer be suggested by it; as Catulus, when Pliilippus said to him, Why do you bark? replied, Because I see a thief [Cicero de Orat. ii. 54].
82. To joke upon one's self, is, I may say, the part only of a buffoon, and is by no means allowable in an orator. It may be done in as many ways as we joke upon others: therefore, though it be too common, I pass it over. 83. Whatever, moreover, is expressed scurrilously or passionately, is, though it may raise a laugh, unworthy of a man of respectability. Thus I know a man who said to an inferior person, that had addressed him with too little respect, I will inflict a blow on your head, and bring an action against you for hurting my hand by the hardness of your head. At such a saying it is doubtful whether the hearers ought to laugh or feel indignation.
84. There remains to be noticed the kind of joke that consists in deceiving expectation [Cicero de Orat. ii. 70], or taking the words of another in a sense different from that in which he uses them; and of all sorts of jests these may be said to be the happiest. But an unexpected turn may be adopted even by one who attacks; such as that of which Cicero gives an example: What is wanting to this man except fortune and virtue? Or as that of Domitius Afer: For pleading causes he is a man excellently apparelled.
Or it may be used in anticipating the answer of another person. Thus Cicero, on hearing a false report of the death of Vatinius, asked his freedman Ovinias, Is all well? and, when he said All is well, rejoined, He is then dead? 85. Great laughter attends on simulation and dissimulation, which may be thought similar and almost the same, but simulation is the act of one who pretends to feel a certain persuasion in his mind; dissimulation that of one who feigns not to understand another's meaning. Domitius Afer used simulation, when, on some persons reiterating at a trial that Celsina knew the facts, (who was a woman of some influence,) he asked, Who is he? wishing to make it appear that he thought Celsina a man.
86. Cicero used dissimulation when a witness, named Sextus Annalis, had given testimony against a person whom he was defending, and the prosecutor several times pressed him, crying, Tell us, Marcus Cicero, whether you can say anything of Sextus Annalis; Cicero immediately began to recite from the sixth book of the Annals of Ennius [dic, said the prosecutor, de Sexto Annali: Cicero repeated a verse de Sexto Annali, or de Sexto Ennii Annalium libro],
Quis potis ingentis causae evolvere belli?
87. For this kind of jest ambiguity doubtless affords the most frequent opportunity; as it did to Cascellius [Cascellius Aulus, the famous lawyer mentioned by Hor. Epist. ad Pis. 371], who, when a person consulting him said, I wish to divide my ship [meaning, to divide or share the freight of it with some other person], rejoined, You will lose it then. But the thoughts are often sent in another direction, by a remark being turned off from something of greater to something of less consequence; as when the person who was asked what he thought of a man caught in adultery, replied that he was slow [Cicero de Orat. ii. 68].
88. Of a similar nature is that which is said in such a manner as to convey a suspicion of the meaning; as in an example to be found in Cicero [De Orat. ii. 69]. When a man was lamenting that his wife had hung herself on a fig-tree, I beg you, said another to him, to give me a slip of that tree, that I may plant it; for the meaning, though not expressed, is very well understood. 89. Indeed all facetiousness lies in expressing things with some deviation from the natural and genuine sense of the words employed; and this is wholly done by misrepresenting our own or other people's thoughts, or by stating something that cannot be. 90. Juba [Juba the historian, whom Julius Caesar led in triumph, and Augustus restored to his kingdom] misrepresented the thought of another, when he said to a man that complained of having been bespattered by his horse, What! do you think me a Hippocentaur? [The person who complained seems to have said, "You have bespattered me," when the spattering had proceeded from the horse.]
Caius Cassius misrepresented his own, when he said to a soldier hurrying to the field without his sword, Ah! comrade, you will use your fist well; and Galba did the same when some fish, which had been partly eaten the day before, were put upon the table with their other side uppermost: Let us make haste to eat, said he, for there are people under the table supping upon the same dish. Of the same sort is the jest of Cicero on Curius, which I have just mentioned, for it was impossible that he should not have been born when he was declaiming. 91. There is a certain misrepresentation, too, that has its origin in irony, of which Caius Caesar gives us an example; for when a witness said that his groin had been wounded by the accused person, and it was easy to show why he had wished to wound that part of his body rather than any other, Caesar preferred to say, What could he do, when you had a helmet and a coat of mail?
92. But the best of all simulation is that which is directed against one who simulates, such as that which was employed in the following instance by Domitius Afer: He had by him a will which had been made some time, and a man whom he had taken into his friendship since the date of it, hoping to gain something if he should alter it, told him a story of his own invention, for the purpose of asking him whether he should advise an old chief centurion, who had already made his will, to make another, By no means do so, said Domitius, for you will offend him.
93. But the most agreeable of all such pleasantries, are such as are good-natured, and, so to speak, easy of digestion; such as that which the same orator once addressed to an ungrateful client, who avoided recognition from him one day in the forum; he sent this message to him by an attendant: Are you not obliged to me for not having seen you? Or as that which he addressed to his steward, who, when he was unable to give an account of the money in his hands, remarked several times, ''I have eaten no bread, and I drink water;" Sparrow, said Domitius, return what you ought to return. These kinds of jokes they call jokes applicable to character. 94. It is a pleasing sort of jest, too, that lays less to the charge of another than might be laid; thus when a candidate for office applied to Domitius Afer for his vote, saying, "I have always respected your family," Domitius, when he might have boldly denied the assertion, said, I believe you, and it is true.
It is sometimes amusing to speak of one's self. That, too, which, if said regarding a person in his absence, would be ill-natured, is, when uttered as an attack upon him to his face, a mere subject for laughter. 95. Such was the remark of Augustus, when a soldier was requesting something unreasonable of him, and Marcianus, whom he suspected of intending to ask of him something unjust, came up at the time: I will no more do what you ask, comrade, said he to the soldier, than I will do that which Marcianus is going to ask. 96. Verses also, aptly quoted, have given great effect to witticisms, whether introduced entire and just as they are, (a thing so easy, that Ovid has composed a book against bad poets in verses taken from the Tetrastichs of Macer,) and this mode of citation is the more agreeable if it be seasoned with something of ambiguity, as in Cicero's remark upon Marcius, a man of much cunning and artifice, when he was suspected of unfair dealing in a cause,
Nisi qua Ulixes rate evasit Laertius,
97. or with some little change in the words; as when Cicero jested on a senator, who, having been always thought extremely foolish, was, after inheriting an estate, called upon first to give his vote in the senate, saying,
Cujus haereditas est quam vocant sapientiam,
putting haereditas, "estate," for facilitas, "faculty;" or by inventing verses similar to some well-known verses, which is called a parody. 98. Or proverbs may be aptly applied, as a person said to a man of bad character who had fallen down, and asked to be helped up, Let some one take you up who does not know you [compare Hor. Epist. i. 17, 62].
To take a jest from history shows learning; as Cicero did, on the trial of Verres; for when he was examining a witness, Hortensius observed, "I do not understand these enigmas;" But you ought, replied Cicero, as you have a Sphinx at home; for he had received from Verres a brazen Sphinx of great value.
99. As to apparent absurdities, they consist in an imitation of
foolish sayings, and would, if they were not affected, be foolish;
as that of the man who, when the people expressed their
wonder that he had bought a low candlestick, said to them,
It will serve me for breakfast [prandia, similar to our breakfasts, required
smaller apparatus than were used for dinner]. But some that are very like
absurdities, and that seem to be said without any reason at all,
are extremely pointed; as when the slave of Dolabella was
asked whether his master had advertised a sale of his property,
he replied, He has sold his house [by this reply he
signified that his master was reduced to sell
everything; for the house which a person inhabits will be the last thing
that he will sell]. 100. Persons taken by surprise
sometimes get rid of their embarrassment by a jest. Thus when an
advocate asked a witness who said that he had been
wounded by the person on trial, "whether he had a scar to
show," and the witness showed a large one on his groin. He
ought, observed the advocate, to have aimed at your side
[my client ought to have aimed at your side, and at a
mortal part, and you would then have been prevented from giving evidence against
101. These are the most usual sources, that I have either found indicated by others, or discovered for myself, from which jests may be derived; but I must repeat, that there are as many subjects for facetiousness as for gravity; all which persons, places, occasions, and chances, which are almost infinite, suggest to us. 102. I have therefore touched upon these points that I might not seem to neglect them; and what I have said on the practice and manner of jesting was, though unsatisfactory, nevertheless necessary.
To these Domitius Marsus, who wrote a very carefully studied treatise on Urbanitas, "urbanity," adds some examples of sayings that are not laughable, but admissible even into the gravest speeches; they are elegantly expressed, and rendered agreeable by a certain peculiar kind of wit; they are indeed urbana, "urbane," or "polished," but have nothing to do with the ridiculous. 103. Nor was his work intended to treat of laughter, but of urbanitas, which, he says, is peculiar to our city, and was not at all understood till a late period, after it became common for the term urbs, though the proper name was not added, to be taken as signifying Rome.
104. He thus defines it: "Urbanitas is a certain power of thought, comprised in a concise form of expression, and adapted to please and excite mankind, with reference to every variety of feeling, being especially fitted either to repel or to attack, as circumstances or persons may render necessary." But this definition, if we take from it the particular of conciseness, may be considered as embracing all the excellences of language; for, if it concerns things and persons, to say what property applies to each of them is the part of consummate eloquence; and why he made it a necessary condition that it should be concise, I do not know.
105. But, in the same book, a little farther on, he defines another kind of urbanitas, peculiar to narrative, (which has been displayed, he says, in many speakers,) in the following manner, adhering, as he states, to the opinion of Cato: "A man of urbanitas will be one from whom many good sayings and repartees shall have proceeded, and who, in common conversation, at meetings, at entertainments, in assemblies of the people, and, in short, everywhere, speaks with humor and propriety. Whatever orator shall deliver himself in this way, laughter will follow." 106. But if we receive these definitions, whatever is said well, will also have the character of urbanitas.
To a writer who proposed such specifications, it was natural to make such a division of urbane sayings as to call some serious, some jocose, and others intermediate; for this division applies to all properly expressed thoughts. 107. But to me, even some sayings that are jocose, appear not to be expressed with sufficient urbanitas, which, in my judgment, is a character of oratory in which there is nothing incongruous, nothing coarse, nothing unpolished, nothing barbarous to be discovered, either in the thoughts, or the words, or the pronunciation, or the gestures; so that it is not to be looked for so much in words considered singly, as in the whole complexion of a speech; like Atticism among the Greeks, which was a delicacy of taste peculiar to the city of Athens.
108. Yet that I may not do injustice to the judgment of Marsus, who was a very learned man, I will add that he distinguishes urbanitas, as applied to serious sayings, into the commendatory, the reproachful, and the intermediate. Of the commendatory be gives an example from Cicero, in his speech for Ligarius [C. 12], when he says to Caesar, Thou who art wont to forget nothing but injuries. 109. Of the reproachful he gives as an instance what Cicero wrote to Atticus [Ad Att. viii. 7, comp. Plutarch, vol. ii. p. 205; Macrob. Saturn. ii. 3] concerning Pompey and Caesar: I have one whom I can avoid; one whom I can follow, I have not.
Of the intermediate, which he calls apopthegmatic, he cites as a specimen these other words of Cicero [In Catil. iv. 2]: that death could never be either grievous to a brave man, or premature to a man who has attained the consulship, or calamitous to a wise man. All these passages are very happily expressed; but why they should be peculiarly distinguished by the character of urbanitas, I do not see. 110. If it is not the whole complexion of a composition, (as it appears to me,) that entitles it to this distinction, and if the term is to be applied to single expressions, I should rather give the character of urbanitas to those sayings which are of the kind called droll, but which yet are not droll, such as the following: 111. It was said of Asinius Pollio, who could adapt himself alike either to business or to pleasure, that he was a man for all hours; and of a pleader, who spoke with ease extemporaneously, that he had all his wit in ready cash.
Such, too, was the saying of Pompey, which Marsus notices, addressed to Cicero, who expressed distrust of his party; go over to Caesar, then, and you will fear me. [As Cicero was constantly saying that he was afraid of Caesar and his army, Pompey said to him, Go over to Caesar, and you will then fear me, you who are always afraid of the enemy.] Though this, if it had been uttered on a less important occasion, or in another spirit, or by any other person than Pompey, might have been numbered among droll sayings. 112. To these may be added what Cicero wrote to Cerellia [a learned and philosophical lady with whom Cicero had some correspondence, of which the sentence in the text is the only remaining fragment. See Dio Cass. b. xlvi. p. 461, ed. Reim], assigning a reason why he so patiently endured the proceedings of Caesar: These things must be borne, either with the mind of a Cato or with the stomach of a Cicero; for the word stomach carries with it something like a jest.
These reflections, which struck me with regard to the definitions of Marsus, I could not withhold from my readers; in which, though I may have erred, I have not deceived them, having pointed out at the same time a different opinion, which it is free for those, who approve it, to follow.
1. It might appear that I should not enter upon precepts concerning discussion [altercatio is disputation consisting in answers and replies, which is not interrupted by any questions from the opposite party. There is an excellent example of altercatio in Cicero's Epist. ad Att. i. 16] until I have treated of every particular regarding continuous speaking; for recourse is had to discussion last of all [that is, after the regular pleading of the cause]; but, as it depends on invention alone, and can have no concern with arrangement, nor requires any great ornament from style, or much assistance from memory or delivery, I think that, before I proceed to the second of the five parts, I shall treat of this, which is connected wholly with the first, in a not improper place, if I speak of it here.
2. It is a matter which other writers have neglected, perhaps because sufficient regard seemed to have been paid to it in the other rules of the art; for it consists either in attack or defense, concerning which a considerable number of directions have been given; since whatever is proper with regard to proofs in a continued speech, must also necessarily be applicable to the brevity and conciseness of discussion, in which no other topics are introduced than are in the rest of the pleading; they are only treated in another manner, that is, by way of question and answer.
Almost all that is necessary to be observed with respect to this head has been noticed by me in the part relating to witnesses. 3. Yet, as I am pursuing this work on an extensive plan, and as an orator cannot be called accomplished without ability in discussion, let me devote a little particular attention to this point also, which, indeed, in some causes, contributes greatly to insure success. 4. For as, with regard to the general quality of an action, when it is considered whether it was justly done or otherwise, continuous speaking is most required, which also sufficiently sets forth, for the most part, questions of definition or exception, as well as all those in which a fact is admitted, or inferred, by conjecture from artificial proof; so in those causes, (a very numerous class,) which either depend solely on proofs called inartificial, or such as are of a mixed kind, the heat of discussion is frequently most fierce; nor should we say that advocates point their swords at each other in any part of a cause more closely than in this.
5. For the strongest arguments must here be inculcated on the mind of the judge; whatever we promised in the course of our pleading must be made good; and the false allegations of the opposite party must be refuted. There is no part of a cause, indeed, in which the judge is more attentive; and some pleaders, though but of moderate power in speaking, have, by their excellence in disputation, gained a just title to the name of advocates. 6. But some, on the other hand, satisfied with having bestowed on their clients the showy labor of declamation, quit the benches at the close of it, attended with a crowd of flatterers, and leave to ignorant and mean practitioners the conduct of the battle which ought to decide the cause.
7. Accordingly, in private causes, we may see some advocates chosen for pleading and others for the establishment of proofs. But if these duties are to be divided, the latter is surely of more importance than the former; and it is dishonorable to oratory to say that inferior pleaders profit their clients more than those of greater ability. At public trials, however, the voice of the crier cites him who has pleaded [he cannot go off, as in private causes] as well as the other advocates.
8. For such disputation, then, there is need, in the first place, of a quick and active intellect, and of a ready and keen judgment. For we have no time to reflect, but must speak at once, and aim a blow at our adversary at the same time that we parry his attempt on ourselves. As it is of the greatest importance, therefore, to every part of an orator's duty, to know his whole cause not only accurately, but familiarly, so it is of the utmost necessity, in altercation with our adversary, to have a thorough knowledge of all the characters, instruments, times, and places connected with it; otherwise we shall often be put to silence, or, if others suggest replies to us, we must, from necessary haste to speak, unreasoningly acquiesce in what they say; whence it will sometimes happen that in trusting to others, we shall nave to blush for their folly.
Nor is the matter made clear by these monitors. 9. Some advocates, too, try undisguisedly to bring us to a quarrel; for we may see many of them, transported apparently with wrath, calling upon the judge to attend, and saying that what is suggested is contrary to fact, and that he who is to decide the cause should understand the evil which is kept out of sight. 10. He who would be a good disputant, therefore, must be free from the vice of passionateness: for no affection of the mind is a greater enemy to reason; it carries us out of the cause, leads us, frequently, to offer and incur gross insults, sometimes draws upon us the indignation of the judges themselves.
Moderation is better, and sometimes even sufferance; for allegations made by the opposite party must not only be refuted, but must be held up to contempt, must be undervalued and ridiculed; nor can wit find any better place for exercise than this. Such is the case as long as matters are conducted with order and due respect to us; but against turbulent adversaries we must show a bold face, and oppose impudence with firmness. 11. For there are some speakers of such a hardened front that they assail us with loud bluster, interrupt us in the middle of a speech, and confuse and disturb the whole proceedings; these we must be so far from imitating, that we must vigorously repel them; their insolence must be put down; and we must at times appeal to the judges or presiding magistrates that the times for speaking may be fairly observed. It is no task for an indolent mind, or an excessively modest character; and that which is called honesty often bears a false name, and should rather be called imbecility.
12. What is of the greatest value in disputation is acuteness, which doubtless does not come from art; (since what is natural is not taught;) but it may be improved by art. 13. The chief requisite is, to keep the point in dispute, and that which we wish to establish, constantly before our eyes; because, if we keep to one object, we shall not be led into useless altercation, or waste the time due to the cause in railing; and, if our adversary commit such errors, we shall have the pleasure of taking advantage of them.
14. To those who have meditated carefully what may be objected on the opposite side, or what replies may be made on their own, all occasions may be turned to advantage. It is a kind of artifice employed at times, however, to contrive that certain points, which have been concealed in the course of the pleading, may be suddenly brought forth in the subsequent discussion; starting out as it were in an unexpected sally, or a spring from an ambush. This is a plan which may be adopted when there is some particular in the cause on which we cannot speak satisfactorily at once, but which we can make clear when time is given us for consideration.
15. What is secure and solid, it will be best to bring forward at the commencement of our proceedings, that we may insist upon it the oftener and the longer. It seems scarcely necessary to direct that a disputant should not be turbulent and clamorous merely, like people who are utterly strangers to learning; for audacity, though it may be troublesome to the adversary, is at the same time hateful to the judge. 16. It is inexpedient, too, to contend long for a point which you cannot carry; for where you must be conquered, it is better to yield; because, if there be several points in dispute, the good faith which we show with regard to one will cause us to be more trusted with respect to others, or, if there be but one point, a lighter penalty may be inflicted on us in consequence of a candid acknowledgment. To persist in vindicating a fault, especially when it is exposed, is to commit another fault.
17. While the contest is undecided, there is great skill and artifice in drawing on our adversary when wandering from the point, and forcing him to go as far from it as possible, in such a way that he may exult at times in false hopes of success. Some points in our evidence may accordingly with advantage be kept back; for our opponents will perhaps press for them with importunity, and risk the whole of their cause on what they think that we cannot produce, adding authority to our proofs by the earnestness with which they demand them.
18. It may be of use, too, at times, to abandon some point to our adversary, which he may think in his favor, in order that, while he is grasping it, he may let slip something of greater importance; or to offer him his choice of two things, either of which he will choose to his disadvantage; a course which may be adopted with more effect in discussion than in regular pleading, because in the one we reply to ourselves, and in the other we convict our adversary, as it were, on his own confession.
19. It is the part of an acute pleader to observe, above all, by what remarks the judge is most impressed, and to what he listens with disapprobation; a circumstance which may often be discovered from his looks, and sometimes from some word or gesture. He ought then to insist upon whatever promotes his object, and to withdraw adroitly from whatever is prejudicial to him. It is in such a way that physicians act; they continue or cease to give medicines, just as they see that they are relished or loathed by the patient. 20. Sometimes, if it is not easy to make a point that we have stated clear, we may raise another question, and fix the attention of the judge, if possible, upon it; for when you yourself cannot answer to a thing, what is to be done but to find something else to which your opponent may be unable to answer?
21. In regard to most parts of a disputation, as I observed, the same is to be said as in regard to the examination of witnesses, the difference being only with respect to persons; as in the one case the contest is between advocates, and in the other between the witness and the advocate. But to exercise one's self in disputation is much more easy; for it is possible, and may be of the greatest advantage, to choose, in conjunction with some one engaged in the same studies, a subject, either true or fictitious, for discussion, and to take different sides upon it after the manner of altercations in the courts; a practice which may also be adopted in respect to the simple sort of questions.
22. I would also have an advocate understand in what order his various proofs should be brought before the judge in such disputations; and the same plan may be adopted with regard to them as with regard to the arguments in his speech, namely, that the strongest be placed first and last; for the former dispose the judge to believe him, and the latter to decide in his favor.
1. Having treated of this head to the best of my ability, I should not hesitate to pass at once to disposition, which follows next in order, were I not apprehensive that, as there are writers who place judgment under invention, I might be thought by some to have purposely omitted that subject, though it is a quality, in my opinion, so blended and mixed with every part of oratory that its influence is inseparable from even a single thought or word; and it is not communicable by art any more than taste or smell. 2. All that I can do, accordingly, is to teach, and persevere in teaching, what is to be imitated or avoided in each department of the art, in order that judgment may be exercised in reference to it. I shall continue to teach, therefore, that we must not attempt what cannot be accomplished; that we must avoid all arguments that are contradictory or common to both sides; and that nothing in our speech must be barbarous or obscure; but the observance of all such rules must be under the guidance of common sense, which cannot be taught.
3. From judgment I do not consider that sagacity greatly differs, except that judgment is employed about things which are evident in themselves, and sagacity about things that are obscure, having either not been noticed at all, or being of a doubtful nature. Judgment is very often sure; sagacity is a certain reasoning, as it were, from the depths of things, generally weighing and comparing different arguments, and exercising the faculties both of invention and arbitration. 4. But such observations are not to be taken as universally true; for sagacity is often exercised on some circumstance that precedes the pleading of a cause; as Cicero, in pleading against Verres, appears with great sagacity to have preferred occupying a shorter time with his speech to prolonging it to the year in which Quintus Hortensius was to be consul. [When Cicero saw that it was in contemplation to prolong the proceedings to another year and another praetorship, and to rescue the accused by the aid of Hortensius and Metellus, who would then be consuls, he contrived to avoid protracting his pleading, and spending time on increasing the number of his charges, and called witnesses to support each individual charge that he had made, consigning them to Hortensius for examination; a mode by which Hortensius was so fatigued, that he ceased to offer further opposition; and Verres, despairing of support, went of his own accord into exile. Asconius Pedianus.]
5. In the conduct of a pleading, sagacity holds the first and most influential place; for it is required to determine what we ought to say, what to suppress, and what to defer; whether it be better to deny a fact, or to justify it; when we should use an exordium, and of what kind; whether we should give a statement of facts, and in what form; whether we should rest our case on law or on equity; what order is the most eligible; what style we should adopt, and whether it be expedient to speak boldly, gently, or humbly. 6. But upon these points I have already, as occasion has allowed, given some directions, and I shall continue to do so in the rest of my work. I will make a few remarks here, however, by way of example, that it may be more clearly understood what it is that I think cannot be taught by rules of art.
7. The sagacity of Demosthenes is commended in this respect, that, when he was recommending war to the Athenians, who had previously tried it with little success, he showed that nothing had been done in it with prudent management, so their neglect might be made amends for, whereas if no error had been committed, there would have been no ground for better hopes for the future. 8. The same orator, too, when he feared to give offence if he reproached the people for their indolence in maintaining the liberty of their country, preferred to dwell on the praise of their ancestors, who had governed it with such effect; for he thus found them willing to listen, and it naturally followed that, while they approved of the better, they repented of the worse.
9. As to Cicero, his speech for Cluentius alone is worth an infinity of examples. For what proof of sagacity in it shall I admire most? The opening of the case, in which he deprives the mother, whose influence bore hard upon her son, of all credit? Or his determination to transfer the guilt of having bribed the judges on the adverse party, rather than deny it, on account, as he says, of the notorious infamy of their judgment? Or his recourse, last of all, in so odious an affair, to the support of the law, a mode of defense by which he would have alienated the feelings of the judges, if they had not been previously softened? Or his protestation that he adopted that course contrary to the inclination of Cluentius?
10. Or what shall I commend in his speech for Milo? That he made no statement of the case until he had removed the prejudices entertained against the accused? That he threw the odium of having lain in wait upon Clodius, though the encounter was in reality fortuitous? That he commended the deed, and yet exculpates Milo from having intentionally committed it? That he put no supplications into the mouth of his client, but took the character of suppliant on himself?
It would be endless to enumerate all the proofs of sagacity that he exhibits; how he divests Cotta of all credit; how he opposes himself in the place of Ligarius; how he rescues Cornelius by alleging the openness of his confession. 11. I think it sufficient to observe, that there is nothing, not only in oratory, but in the whole conduct of life, more valuable than sagacity; that without it all instruction is given in vain; and that judgment can do more without learning than learning without judgment; for it is the part of that virtue to adapt our speech to places, circumstances, and characters. But as this part of my subject is somewhat comprehensive, and is intimately connected with oratorical effect, it shall be noticed when I proceed to give directions on speaking with propriety.