The Orations of Marcus Tullius Cicero, Volume 4

Part 7 out of 11

on that account it is no great wonder if a man who in any affair has
behaved basely, or covetously, or petulantly, should have erred in
this business also. For in proportion as you can detract from
the honesty and authority of the man who is accused, in the same
proportion has the force of the whole defence been weakened.

If it cannot be shown that the person on his trial has been ever
before implicated in any previous guilt, then that topic will come
into play which we are to use for the purpose of encouraging the
judges to think that the former character of the man has no bearing
on the present question; for that he has formerly concealed his
wickedness, but that he is now manifestly convicted; so that it is not
proper that this case should be looked at with reference to his former
life, but that his former life should now be reproved by this conduct
of his, and that formerly he had either no opportunity of doing wrong,
or no motive to do so. Or if this cannot be said, then we must have
recourse to this last assertion,--that it is no wonder if he now does
wrong for the first time, for that it is necessary that a man who
wishes to commit sin, must some time or other commit it for the first
time. If nothing whatever is known of his previous life, then it is
best to pass over this topic, and to state the reason why it is passed
over, and then to proceed at once to corroborate the accusation by

XI. But the advocate for the defence ought in the first place to show,
if he can, that the life of the person who is accused has always been
as honourable as possible. And he will do this best by recounting any
well known services which he has rendered to the state in general,
or any that he has done to his parents, or relations, or friends, or
kinsmen, or associates, or even any which are more remarkable or more
unusual, especially if they have been done with any extraordinary
labour, or danger, or both, or when there was no absolute necessity,
purely because it was his duty, or if he has done any great benefit to
the republic, or to his parents, or to any other of the people whom I
have just mentioned, and if, too, he can show that he has never been
so influenced by any covetousness as to abandon his duty, or to commit
any error of any description. And this statement will be the more
confirmed, if when it is said that he had an opportunity of doing
something which was not quite creditable with impunity, it can be
shown at the same time that he had no inclination to do it.

But this very kind of argument will be all the stronger if the person
on his trial can be shown to have been unimpeachable previously in
that particular sort of conduct of which he is now accused, as, for
instance, if he be accused of having done so and so for the sake
of avarice, and can be proved to have been all his life utterly
indifferent to the acquisition of money. On this indignation may be
expressed with great weight, united with a complaint that it is a most
miserable thing, and it may be argued that it is a most scandalous
thing, to think that that was the man's motive, when his disposition
during the whole of his life has been as unlike it as possible. Such a
motive often harries audacious men into guilt, but it has no power to
impel an upright man to sin. It is unjust, moreover, and injurious to
every virtuous man, that a previously well-spent life should not be of
the greatest possible advantage to a man at such a time, but that a
decision should be come to with reference only to a sudden accusation
which can be got up in a hurry, and with no reference to a man's
previous course of life, which cannot be extemporised to suit an
occasion, and which cannot be altered by any means.

But if there have been any acts of baseness in his previous life, or
if they be said to have undeservedly acquired such a reputation, or if
his actions are to be attributed by the envy, or love of detraction,
or mistaken opinion of some people, either to ignorance, or necessity,
or to the persuasion of young men, or to any other affection of mind
in which there is no vice, or if he has been tainted with errors of
a different kind, so that his disposition appears not entirely
faultless, but still far remote from such a fault, and if his
disgraceful or infamous course of life cannot possibly be mitigated by
any speech,--then it will be proper to say that the inquiry does not
concern his life and habits, but is about that crime for which he is
now prosecuted, so that, omitting all former actions, it is proper
that the matter which is in hand should be attended to.

XII. But suspicions may be derived from the fact itself, if the
administration of the whole matter is examined into in all its parts;
and these suspicions will arise partly from the affair itself when
viewed separately, and partly from the persons and the affairs taken
together. They will be able to be derived from the affair, if we
diligently consider those circumstances which have been attributed
to such affairs. And from them all the different genera, and most
subordinate species, will appear to be collected together in this
statement of the case.

It will therefore be desirable to consider in the first place what
circumstances there are which are united to the affair itself,--that
is to say, which cannot be separated from it, and with reference to
this topic it will be sufficient to consider what was done before the
affair in question took place from which a hope arose of accomplishing
it, and an opportunity was sought of doing it, what happened with
respect to the affair itself, and what ensued afterwards. In the next
place, the execution of the whole affair must be dealt with for this
class of circumstances which have been attributed to the affair has
been discussed in the second topic.

So with reference to this class of circumstances we must have a
regard to time, place, occasion, and opportunity, the force of each
particular of which has been already carefully explained when we were
laying down precepts for the confirmation of an argument. Wherefore,
that we may not appear to have given no rules respecting these things,
and that we may not, on the other hand, appear to have repeated the
same things twice over, we will briefly point out what it is proper
should be considered in each part. In reference to place, then,
opportunity is to be considered; and in reference to time, remoteness;
and in reference to occasion, the convenience suitable for doing
anything; and with reference to facility, the store and abundance
of those things by means of which anything is done more easily, or
without which it cannot be done at all.

In the next place we must consider what is added to the affair, that
is to say, what is greater, what is less, what is equally great, what
is similar. And from these topics some conjecture is derived, if
proper consideration is given to the question how affairs of greater
importance, or of less, or of equal magnitude, or of similar
character, are usually transacted. And in this class of subjects the
result also ought to be examined into; that is to say, what usually
ensues as the consequence of every action must be carefully
considered; as, for instance, fear, joy, trepidation.

But the fourth part was a necessary consequence from those
circumstances which we said were attendant on affairs. In it those
things are examined which follow the accomplishment of an affair,
either immediately or after an interval. And in this examination we
shall see whether there is any custom, any action, any system, or
practice, or habit, any general approval or disapproval on the part of
mankind in general, from which circumstance some suspicion at times

XIII. But there are some suspicions which are derived from the
circumstances which are attributed to persons and things taken
together. For many circumstances arising from fortune, and from
nature, and from the way of a man's life, and from his pursuits
and actions, and from chance, or from speeches, or from a person's
designs, or from his usual habit of mind or body, have reference to
the same things which render a statement credible or incredible, and
which are combined with a suspicion of the fact.

For it is above all things desirable that inquiry should be made in
this way, of stating the case first of all, whether anything could be
done; in the next place, whether it could have been done by any one
else; then we consider the opportunity, on which we have spoken
before; then whether what has been done is a crime which one is
bound to repent of; we must inquire too whether he had any hope of
concealing it; then whether there was any necessity for his doing so;
and as to this we must inquire both whether it was necessary that the
thing should be done at all, or that it should be done in that manner.
And some portion of these considerations refer to the design, which
has been already spoken of as what is attributed to persons; as in the
instance of that cause which we have mentioned. These circumstances
will be spoken of as before the affair,--the facts, I mean, of his
having joined himself to him so intimately on the march, of his having
sought occasion to speak with him, of his having lodged with him,
and supped with him. These circumstances were a part of the
affair,--night, and sleep. These came after the affair,--the fact
of his having departed by himself; of his having left his intimate
companion with such indifference; of his having a bloody sword.

Part of these things refer to the design. For the question is asked,
whether the plan of executing this deed appears to have been one
carefully devised and considered, or whether it was adopted so hastily
that it is not likely that any one should have gone on to crime so
rashly. And in this inquiry we ask also whether the deed could have
been done with equal ease in any other manner; or whether it could
have happened by chance. For very often if there has been a want of
money, or means, or assistants, there would not appear to have been
any opportunity of doing such a deed. If we take careful notice
in this way, we shall see that all these circumstances which are
attributed to things, and those too which are attributed to persons,
fit one another. In this case it is neither easy nor necessary, as it
is in the former divisions, to draw distinctions as to how the accuser
and how the advocate for the defence ought to handle each topic. It
is not necessary, because, when the case is once stated, the
circumstances themselves will teach those men, who do not expect to
find everything imaginable in this treatise, what is suitable for each
case; and they will apply a reasonable degree of understanding to the
rules which are here laid down, in the way of comparing them with the
systems of others. And it is not easy, because it would be an endless
business to enter into a separate explanation with respect to every
portion of every case; and besides, these circumstances are adapted to
each part of the case in different manners on different occasions.

XIV. Wherefore it will be desirable to consider what we have now set
forth. And our mind will approach invention with more ease, if it
often and carefully goes over both its own relation and that of
the opposite party, of what has been done; and if, eliciting what
suspicions each part gives rise to, it considers why, and with what
intention, and with what hopes and plans, each thing was done. Why it
was done in this manner rather than in that; why by this man rather
than by that; why it was done without any assistant, or why with this
one; why no one was privy to it, or why somebody was, or why this
particular person was; why this was done before; why this was not done
before; why it was done in this particular instance; why it was done
afterwards; what was done designedly, or what came as a consequence of
the original action; whether the speech is consistent with the facts
or with itself; whether this is a token of this thing, or of that
thing, or of both this and that, and which it is a token of most; what
has been done which ought not to have been done, or what has not been
done which ought to have been done.

When the mind considers every portion of the whole business with this
intention, then the topics which have been reserved, will come into
use, which we have already spoken of; and certain arguments will
be derived from them both separately and unitedly. Part of which
arguments will depend on what is probable, part on what is necessary;
there will be added also to conjecture questions, testimony, reports.
All of which things each party ought to endeavour by a similar use of
these rules to turn to the advantage of his own cause. For it will be
desirable to suggest suspicions from questions, from evidence, and
from some report or other, in the same manner as they have been
derived from the cause, or the person, or the action.

Wherefore those men appear to us to be mistaken who think that this
kind of suspicion does not need any regular system, and so do those
who think that it is better to give rules in a different manner about
the whole method of conjectural argument. For all conjecture must be
derived from the same topics; for both the cause of every rumour and
the truth of it will be found to arise from the things attributed to
him who in his inquiry has made any particular statement, and to him
who has done so in his evidence. But in every cause a part of the
arguments is joined to that cause alone which is expressed, and it is
derived from it in such a manner that it cannot be very conveniently
transferred from it to all other causes of the same kind; but part
of it is more rambling, and adapted either to all causes of the same
kind, or at all events to most of them.

XV. These arguments then which can be transferred to many causes,
we call common topics. For a common topic either contains some
amplification of a well understood thing,--as if any one were desirous
to show that a man who has murdered his father is worthy of the very
extremity of punishment; and this topic is not to be used except when
the cause has been proved and is being summed up;--or of a doubtful
matter which has some probable arguments which can be produced on the
other side of the question also; as a man may say that it is right to
put confidence in suspicions, and, on the contrary, that it is not
right to put confidence in suspicions. And a portion of the common
topics is employed in indignation or in complaint, concerning which we
have spoken already. A part is used in urging any probable reason on
either side.

But an oration is chiefly distinguished and made plain by a sparing
introduction of common topics, and by giving the hearers actual
information by some topics, and by confirming previously used
arguments in the same way. For it is allowable to say something common
when any topic peculiar to the cause is introduced with care; and when
the mind of the hearer is refreshed so as to be inclined to attend to
what follows, or is reawakened by everything which has been already
said. For all the embellishments of elocution, in which there is a
great deal both of sweetness and gravity, and all things, too, which
have any dignity in the invention of words or sentences, are bestowed
upon common topics.

Wherefore there are not as many common topics for orators as there are
for lawyers. For they cannot be handled with elegance and weight, as
their nature requires, except by those who have acquired a great flow
of words and ideas by constant practice. And this is enough for us to
say in a general way concerning the entire class of common topics.

XVI. Now we will proceed to explain what common topics are usually
available in a conjectural statement of a case. As for instance--that
it is proper to place confidence in suspicions, or that it is not
proper, that it is proper to believe witnesses, or that it is not
proper, that it is proper to believe examinations, or that it is not
proper, that it is proper to pay attention to the previous course of a
man's life, or that it is not proper, that it is quite natural that a
man who has done so and so should have committed this crime also, or
that it is not natural, that it is especially necessary to consider
the motive, or that it is not necessary. And all these common topics,
and any others which arise out of any argument peculiar to the cause
in hand, may be turned either way.

But there is one certain topic for an accuser by which he exaggerates
the atrocity of an action, and there is another by which he says that
it is not necessary to pity the miserable. That, too, is a topic for
an advocate for the defence by which the false accusations of the
accusers are shown up with indignation, and that by which pity is
endeavoured to be excited by complaints. These and all other common
topics are derived from the same rules from which the other systems
of arguments proceed, but those are handled in a more delicate, and
acute, and subtle manner, and these with more gravity, and more
embellishment, and with carefully selected words and ideas. For in
them the object is, that that which is stated may appear to be true.
In these, although it is desirable to preserve the appearance of
truth, still the main object is to give importance to the statement.
Now let us pass on to another statement of the case.

XVII. When there is a dispute as to the name of a thing because the
meaning of a name is to be defined by words, it is called a definitive
statement. By way of giving an example of this, the following case may
be adduced. Caius Flaminius, who as consul met with great disasters in
the second Punic war, when he was tribune of the people, proposed, in
a very seditious manner, an agrarian law to the people, against the
consent of the senate, and altogether against the will of all the
nobles. While he was holding an assembly of the people, his own father
dragged him from the temple. He is impeached of treason. The charge
is--"You attacked the majesty of the people in dragging down a tribune
of the people from the temple." The denial is--"I did not attack the
majesty of the people." The question is--"Whether he attacked the
majesty of the people or not?" The argument is--"I only used the power
which I legitimately had over my own son." The denial of this argument
is--"But a man who, by the power belonging to him as a father, that is
to say, as a private individual, attacks the power of a tribune of the
people, that is to say, the power of the people itself, attacks the
majesty of the people." The question for the judges is--"Whether a man
attacks the majesty of the people who uses his power as a father in
opposition to the power of a tribune?" And all the arguments must be
brought to bear on this question.

And, that no one may suppose by any chance that we are not aware that
some other statement of the case may perhaps be applicable to this
cause, we are taking that portion only for which we are going to give
rules. But when all parts have been explained in this book, any one,
if he will only attend diligently, will see every sort of statement
in every sort of cause, and all their parts, and all the discussions
which are incidental to them. For we shall mention them all.

The first topic then for an accuser is a short and plain definition,
and one in accordance with the general opinion of men, of that name,
the meaning of which is the subject of inquiry. In this manner--"To
attack the majesty of the people is to detract from the dignity, or
the rank, or the power of the people, or of those men to whom the
people has given power." This definition being thus briefly set forth
in words, must be confirmed by many assertions and reasons and must
be shown to be such as you have described it. Afterwards it will be
desirable to add to the definition which you have given, the action
of the man who is accused, and to add it too with reference to the
character which you have proved it to have. Take for instance--"to
attack the majesty of the people." You must show that the adversary
does attack the majesty of the people, and you must confirm this whole
topic by a common topic, by which the atrocity or indignity of the
fact, and the whole guilt of it, and also our indignation at it, may
be increased.

After that it will be desirable to invalidate the definition of the
adversaries, but that will be invalidated if it be proved to be false.
This proof must be deduced from the belief of men concerning it,
when we consider in what manner and under what circumstances men
are accustomed to use that expression in their ordinary writing or
talking. It will also be invalidated if the proof of that description
be shown to be discreditable or useless, and if it be shown what
disadvantages will ensue if that position be once admitted. And
it will be derived from the divisions of honour and usefulness,
concerning which we will give rules when we lay down a system
of deliberations. And if we compare the definition given by our
adversaries with our own definition, and prove our own to be true, and
honourable, and useful, and theirs to be entirely different. But we
shall seek out things like them in an affair of either greater, or
less, or equal importance, from which our description will be proved.

XVIII Now, if there be more matters to be defined,--as for instance,
if we inquire whether he is a thief or a sacrilegious person who has
stolen sacred vessels from a private house,--we shall have to employ
many definitions, and then the whole cause will have to be dealt with
on a similar principle. But it is a common topic to dwell on the
wickedness of that man who endeavours to wrest to his own purposes not
only the effect of things, but also the meaning of words, in order
both to do as he pleases, and to call what he does by whatever name he

Then the first topic to be used by an advocate for the defence, is
also a brief and plain definition of a name, adopted in accordance
with the opinion of men. In this way--To diminish the majesty of the
people is to usurp some of the public powers when you are not invested
with any office. And then the confirmation of this definition is
derived from similar instances and similar principles. Afterwards
comes the separation of one's own action from that definition. Then
comes the common topic by which the expediency or honesty of the
action is increased.

Then comes the reprehension of the definition of the opposite party,
which is also derived from all the same topics as those which we have
prescribed to the accuser. And afterwards other arguments will be
adduced besides the common topic. But that will be a common topic
for the advocate of the defence to use, by which he will express
indignation that the accuser not only alters facts in order to bring
him into danger, but that he attempts also to alter words. For
those common topics which are assumed either for the purpose of
demonstrating the falsehood of the accusations of the prosecutor, or
for exciting pity, or for expressing indignation at an action, or for
the purpose of deterring people from showing pity, are derived from
the magnitude of the danger, not from the nature of the cause.
Wherefore they are incidental not to every cause, but to every
description of cause. We have made mention of them in speaking of the
conjectural statement of a case, but we shall use induction when the
cause requires.

XIX But when the pleading appears to require some translation, or to
need any alteration, either because he is not pleading who ought to
do so, or he is not pleading with the man he ought, or before the men
whom he ought to have for hearers, or in accordance with the proper
law, or under liability to the proper punishment, or in reference to
the proper accusation, or at the proper time, it is then called a
transferable statement of the case. We should require many examples of
this if we were to inquire into every sort of translation, but because
the principle on which the rules proceed is similar, we have no need
of a superfluity of instances. And in our usual practice it happens
from many causes that such translations occur but seldom. For many
actions are prevented by the exceptions allowed by the praetors, and
we have the civil law established in such a way that that man is sure
to lose his cause who does not conduct it as he ought. So that
those actions greatly depend on the state of the law. For there the
exceptions are demanded, and an opportunity is allowed of conducting
the cause in some manner, and every formula of private actions is
arranged. But in actual trials they occur less frequently, and yet, if
they ever do occur at all, they are such that by themselves they have
less strength, but they are confirmed by the assumption of some other
statement in addition to them. As in a certain trial which took place
"When a certain person had been prosecuted for poisoning, and, because
he was also accused of parricide, the trial was ordered to proceed
out of its regular order, when in the accusation some charges were
corroborated by witnesses and arguments, but the parricide was barely
mentioned, it was proper for the advocate for the defence to dwell
much and long on this circumstance, as, nothing whatever was proved
respecting the death of the accused person's parent, and therefore
that it was a scandalous thing to inflict that punishment on him which
is inflicted on parricides, but that that must inevitably be the case
if he were convicted, since that it is added as one of the counts of
the indictment, and since it is on that account that the trial has
been ordered to be taken out of its regular order. Therefore if it is
not right that that punishment should be inflicted on the criminal, it
is also not right that he should be convicted, since that punishment
must inevitably follow a conviction." Here the advocate for the
defence, by bringing the commutation of the punishment into his
speech, according to the transferable class of topics, will invalidate
the whole accusation. But he will also confirm the alteration by a
conjectural statement of the case when employed in defending his
client on the other charges.

XX But we may give an example of translation in a cause, in this
way--When certain armed men had come for the purpose of committing
violence, and armed men were also prepared on the other side, and when
one of the armed men with his sword cut off the hand of a certain
Roman knight who resisted his violence, the man whose hand had been
cut off brings an action for the injury. The man against whom the
action is brought pleads a demurrer before the praetor, without there
being any prejudice to a man on trial for his life. The man who brings
the action demands a trial on the simple fact, the man against whom
the action is brought says that a demurrer ought to be added. The
question is--"Shall the demurrer be allowed or not?" The reason
is--"No, for it is not desirable in an action for damages that there
should be any prejudged decision of a crime, such as is the subject of
inquiry when assassins are on their trial." The arguments intended to
invalidate this reason are--"The injuries are such that it is a shame
that a decision should not be come to as early as possible." The
thing to be decided is--"Whether the atrocity of the injuries is a
sufficient reason why, while that point is before the tribunal, a
previous decision should be given concerning some greater crime,
concerning which a tribunal is prepared." And this is the example. But
in every cause the question ought to be put to both parties, by whom,
and by whose agency, and how, and when it is desirable that the action
should be brought, or the decision given; or what ought to be decided
concerning that matter.

That ought to be assumed from the divisions of the law, concerning
which we must speak hereafter; and we then ought to argue as to what
is usually done in similar cases, and to consider whether, in this
instance, out of wickedness, one course is really adopted and another
pretended; or whether the tribunal has been appointed and the action
allowed to proceed through folly or necessity, because it could not be
done in any other manner, or owing to an opportunity which offered for
acting in such a manner; or whether it has been done rightly without
any interruption of any sort. But it is a common topic to urge against
the man who seeks to avail himself of a demurrer to an action, that
he is fleeing from a decision and from punishment, because he has
no confidence in the justice of his cause. And that, owing to the
demurrer, everything will be in confusion, if matters are not
conducted and brought into court as they ought to be; that is to
say, if it is either pleaded against a man it ought not, or with an
improper penalty, or with an improper charge, or at an improper time;
and this principle applies to any confusion of every sort of tribunal.
Those three statements of cases then, which are not susceptible of any
decisions, must be treated in this manner. At present let us consider
the question and its divisions on general principles.

XXI. When the fact and the name of the action in question is agreed
upon, and when there is no dispute as to the character of the action
to be commenced; then the effect, and the nature, and the character of
the business is inquired into. We have already said, that there appear
to be two divisions of this; one which relates to facts and one which
relates to law. It is like this: "A certain person made a minor his
heir, but the minor died before he had come into the property which
was under the care of guardians. A dispute has arisen concerning
the inheritance which came to the minor, between those who are the
reversionary heirs of the father of the minor,--the possession belongs
to the reversionary heirs." The first statement is that of the next of
kin--"That money, concerning which he, whose next of kin we are, said
nothing in his will, belongs to us." The reply is--"No, it belongs
to us who are the reversionary heirs according to the will of his
father." The thing to be inquired into is--To whom does it rightfully
belong? The argument is--"For the father made a will for himself and
for his son as long as the latter was a minor, wherefore it is
quite clear that the things which belonged to the son are now ours,
according to the will of the father." The argument to upset this
is--"Aye, the father made his own will, and appointed you as
reversionary heir, not to his son, but himself. Wherefore, nothing
except what belonged to him himself can be yours by his will." The
point to be determined is, whether any one can make a will to affect
the property of his son who is a minor, or, whether the reversionary
heirs of the father of the family himself, are not the heirs of his
son also as long as he is a minor. And it is not foreign to the
subject, (in order that I may not, on the one hand, omit to mention
it, or, on the other, keep continually repeating it,) to mention a
thing here which has a bearing on many questions. There are causes
which have many reasons, though the grounds of the cause are simple,
and that is the case when what has been done, or what is being
defended, may appear right or natural on many different accounts, as
in this very cause. For this further reason may be suggested by the
heirs--"For there cannot be more heirs than one of one property, for
causes quite dissimilar, nor has it ever happened, that one man was
heir by will, and another by law, of the same property." This, again,
is what will be replied, in order to invalidate this--"It is not one
property only; because one part of it was the adventitious property of
the minor, whose heir no one had been appointed by will at that time,
in the case of anything happening to the minor, and with respect to
the other portion of the property, the inclination of the father, even
after he was dead, had the greatest weight, and that, now that the
minor is dead, gives the property to his own heirs."

The question to be decided is, "Whether it was one property?" And
then, if they employ this argument by way of invalidating the other,
"That there can be many heirs of one property for quite dissimilar
causes," the question to be decided arises out of that argument,
namely "Whether there can be more heirs than one, of different classes
and character, to one property?"

XXII Therefore, in one statement of the case, it has been understood
how there are more reasons than one, more topics than one to
invalidate such reasons, and besides that, more questions than one for
the decision of the judge. Now let us look to the rules for this class
of question. We must consider in what the rights of each party, or of
all the parties (if there are many parties to the suit), consist. The
beginning, then, appears derived from nature; but some things seem to
have become adopted in practice for some consideration of expediency
which is either more or less evident to us. But afterwards things
which were approved of, or which seemed useful, either through habit,
or because of their truth, appeared to have been confirmed by laws,
and some things seem to be a law of nature, which it is not any
vague opinion, but a sort of innate instinct that implants in us,
as religion, piety, revenge for injuries, gratitude, attention to
superiors, and truth. They call religion, that which is conversant
with the fear of, and ceremonious observance paid to the gods; they
call that piety, which warns us to fulfil our duties towards our
country, our parents, or others connected with us by ties of blood,
gratitude is that which retains a recollection of honours and benefits
conferred on one, and acts of friendship done to one, and which shows
itself by a requital of good offices, revenge for injuries is that by
which we repel violence and insult from ourselves and from those who
ought to be dear to us, by defending or avenging ourselves, and by
means of which we punish offences, attention to superiors, they call
the feeling under the influence of which we feel reverence for and pay
respect to those who excel us in wisdom or honour or in any dignity,
truth, they style that habit by which we take care that nothing has
been or shall be done in any other manner than what we state. And the
laws of nature themselves are less inquired into in a controversy of
this sort, because they have no particular connexion with the civil
law of which we are speaking and also, because they are somewhat
remote from ordinary understandings. Still it is often desirable to
introduce them for the purpose of some comparison, or with a view to
add dignity to the discussion.

But the laws of habit are considered to be those which without any
written law, antiquity has sanctioned by the common consent of all
men. And with reference to this habit there are some laws which are
now quite fixed by their antiquity. Of which sort there are many other
laws also, and among them far the greatest part of those laws which
the praetors are in the habit of including in their edicts. But some
kinds of law have already been established by certain custom, such as
those relating to covenants, equity, formal decisions. A covenant
is that which is agreed upon between two parties, because it is
considered to be so just that it is said to be enforced by justice,
equity is that which is equal to all men, a formal decision is that by
which something has been established by the declared opinion of some
person or persons authorized to pronounce one. As for regular laws,
they can only be ascertained from the laws. It is desirable, then, by
trying over every part of the law, to take notice of and to extract
from these portions of the law whatever shall appear to arise out of
the case itself, or out of a similar one, or out of one of greater or
less importance. But since, as has been already said, there are two
kinds of common topics, one of which contains the amplification of a
doubtful matter, and the other of a certain one, we must consider what
the case itself suggests, and what can be and ought to be amplified by
a common topic. For certain topics to suit every possible case cannot
be laid down, and perhaps in most of them it will be necessary at
times to rely on the authority of the lawyers, and at times to speak
against it. But we must consider, in this case and in all cases,
whether the case itself suggests any common topics besides those which
we have mentioned.

Now let us consider the juridical kind of inquiry and its different
divisions. XXIII The juridical inquiry is that in which the nature of
justice and injustice, and the principle of reward or punishment, is
examined. Its divisions are two, one of which we call the absolute
inquiry, and the other the one which is accessory. That is the
absolute inquiry which itself contains in itself the question of right
and not right, not as the inquiry about facts does, in an overhand and
obscure manner, but openly and intelligibly. It is of this sort.--When
the Thebans had defeated the Lacedaemonians in war, as it was nearly
universal custom among the Greeks, when they were waging war against
one another, for those who were victorious to erect some trophy
on their borders, for the sake only of declaring their victory at
present, not that it might remain for ever as a memorial of the war,
they erected a brazen trophy. They are accused before the Amphictyons,
that is, before the common council of Greece. The charge is, "They
ought not to have done so." The denial is, "We ought." The question
is, "Whether they ought." The reason is, "For we gained such glory
by our valour in that war, that we wished to leave an everlasting
memorial of it to posterity." The argument adduced to invalidate this
is, "But still it is not right for Greeks to erect an eternal memorial
of then enmity to Greeks." The question to be decided is, "As for the
sake of celebrating their own excessive valour Greeks have erected an
imperishable monument of their enmity to Greeks, whether they have
done well or ill?" We, therefore, have now put this reason in the
mouth of the Thebans, in order that this class of cause which we
are now considering might be thoroughly understood. For if we had
furnished them with that argument which is perhaps the one which
they actually used, "We did so because our enemies warred against us
without any considerations of justice and piety," we should then be
digressing to the subject of retorting an accusation, of which we will
speak hereafter. But it is manifest that both kinds of question are
incidental to this controversy. And arguments must be derived for
it from the same topics as those which are applicable to the cause
depending on matters of fact, which has been all ready treated of.
But to take many weighty common topics both from the cause itself, if
there is any opportunity for employing the language of indignation or
complaint, and also from the advantage and general character of the
law, will be not only allowable, but proper, if the dignity of the
cause appears to require such expedients.

XXIV. At present let us consider the assumptive portion of the
juridical inquiry. But it is then called assumptive, when the fact
cannot be proved by its own intrinsic evidence, but is defended by
some argument brought from extraneous circumstances. Its divisions
are four in number: comparison, the retort of the accusation, the
refutation of it as far as regards oneself, and concession.

Comparison is when any action which intrinsically cannot be approved,
is defended by reference to that for the sake of which it was done. It
is something of this sort:--"A certain general, when he was blockaded
by the enemy and could not escape by any possible means, made a
covenant with them to leave behind his arms and his baggage, on
condition of being allowed to lead away his soldiers in safety. And he
did so. Having lost his arms and his baggage, he saved his men, beyond
the hopes of any one. He is prosecuted for treason." Then comes the
definition of treason. But let us consider the topic which we are at
present discussing.

The charge is, "He had no business to leave behind the arms and
baggage." The denial is, "Yes, he had." The question is, "Whether he
had any right to do so?" The reason for doing so is, "For else he
would have lost all his soldiers." The argument brought to invalidate
this is either the conjectural one, "They would not have been lost,"
or the other conjectural one, "That was not your reason for doing so."
And from this arise the questions for decision: "Whether they would
have been lost?" and, "Whether that was the reason why he did so?" Or
else, this comparative reason which we want at this minute: "But it
was better to lose his soldiers than to surrender the arms and baggage
to the enemy." And from this arises the question for the decision of
the judges: "As all the soldiers must have been lost unless they had
come into this covenant, whether it was better to lose the soldiers,
or to agree to these conditions?"

It will be proper to deal with this kind of cause by reference to
these topics, and to employ the principles of, and rules for the other
statements of cases also. And especially to employ conjectures for the
purpose of invalidating that which those who are accused will compare
with the act which is alleged against them as a crime. And that will
be done if either that result which the advocates for the defence say
would have happened unless that action had been performed which is now
brought before the court, be denied to have been likely to ensue; or
if it can be proved that it was done with a different object and in a
different manner from that stated by the man who is on his trial. The
confirmation of that statement, and also the argument used by the
opposite party to invalidate it, must both be derived from the
conjectural statement of the case. But if the accused person is
brought before the court, because of his action coming under the name
of some particular crime, (as is the case in this instance, for the
man is prosecuted for treason), it will be desirable to employ a
definition and the rules for a definition.

XXV. And this usually takes place in this kind of examination, so that
it is desirable to employ both conjecture and definition. But if
any other kind of inquiry arises, it will be allowable on similar
principles to transfer to it the rules for that kind of inquiry. For
the accuser must of all things take pains to invalidate, by as many
reasons as possible, the very fact on account of which the person on
his trial thinks that it is granted to him that he was right. And it
is easy to do so, if he attempts to overturn that argument by as many
statements of the case as he can employ.

But comparison itself, when separated from the other kinds of
discussion, will be considered according to its own intrinsic power,
if that which is mentioned in the comparison is shown, either not to
have been honourable, or not to have been useful, or not to have been
necessary, or not so greatly useful, or not so very honourable, or not
so exceedingly necessary.

In the next place it is desirable for the accuser to separate the
action which he himself is accusing, from that which the advocate for
the defence compares with it. And he will do that if he shows that it
is not usually done in such a manner, and that it ought not to be done
so, and that there is no reason why this thing should be done on this
account; for instance, that those things which have been provided for
the sake of safety, should be surrendered to the enemy for the sake of
safety. Afterwards it will be desirable to compare the injury with the
benefit, and altogether to compare the action which is impeached with
that which is praised by the advocate for the defence or which is
attempted to be proved as what must inevitably have ensued, and then,
by disparaging the one at the same time to exaggerate the importance
of the mischief caused by the other. That will be effected if it
be shown that that which the person on his trial avoided was more
honourable, more advantageous, and more necessary than that which
he did. But the influence and character of what is honourable, and
useful, and necessary, will be ascertained in the rules given for

In the next place, it will be desirable to explain that comparative
kind of judicial decision as if it were a deliberative cause and
then afterwards to discuss it by the light thrown on it by rules for
deliberation. For let this be the question for judicial decision which
we have already mentioned--"As all the soldiers would have been lost
if they had not come to this agreement, was it better for the soldiers
to be lost, or to come to this agreement?" It will be desirable that
this should be dealt with with reference to the topics concerning
deliberation, as if the matter were to come to some consultation.

XXVI. But the advocate for the defence will take the topics in
accordance with which other statements of the case are made by the
accuser, and will prepare his own defence from those topics with
reference to the same statements. But all other topics which belong to
the comparison, he will deal with in the contrary manner.

The common topics will be these,--the accuser will press his charges
against the man who confesses some discreditable or pernicious action,
or both, but still seeks to make some defence, and will allege
the mischievous or discreditable nature of his conduct with great
indignation. The advocate for the defence will insist upon it, that no
action ought to be considered pernicious or discreditable, or, on the
other hand, advantageous or creditable, unless it is ascertained with
what intention, at what time, and on what account it was done. And
this topic is so common, that if it is well handled in this cause it
is likely to be of great weight in convincing the hearers. And there
is another topic, by means of which the magnitude of the service done
is demonstrated with very great amplification, by reference to the
usefulness, or honourableness, or necessity of the action. And there
is a third topic, by means of which the matter which is expressed in
words is placed before the eyes of those men who are the hearers, so
that they think that they themselves also would have done the same
things, if the same circumstances and the same cause for doing so had
happened to them at the same time.

The retorting of a charge takes place, when the accused person,
having confessed that of which he is accused, says that he did it
justifiably, being induced by the sin committed against him by the
other party. As in this case--"Horatius, when he had slain the three
Curiatii and lost his two brothers, returned home victorious. He saw
his sister not troubled about the death of her brothers, but at the
same time calling on the name of Curiatius, who had been betrothed to
her, with groans and lamentation. Being indignant, he slew the maid".
He is prosecuted.

The charge is, "You slew your sister wrongfully". The refutation is "I
slew her lawfully". The question is, "Whether he slew her lawfully".
The reason is, "Yes, for she was lamenting the death of enemies, and
was indifferent to that of her brothers, she was grieved that I and
the Roman people were victorious". The argument to invalidate this
reason is, "Still she ought not to have been put to death by her
brother without being convicted". On this the question for the
decision of the judges is, "Whether when Horatia was showing her
indifference to the death of her brothers, and lamenting that of the
enemy, and not rejoicing at the victory of her brother and of the
Roman people, she deserved to be put to death by her brother without
being condemned".

XXVII For this kind of cause, in the first place, whatever is given
out of the other statements of cases ought to be taken, as has been
already enjoined when speaking of comparison. After that, if there is
any opportunity of doing so, some statement of the case ought to be
employed by which he to whom the crime is imputed may be defended. In
the next place, we ought to argue that the fault which the accused
person is imputing to another, is a lighter one than that which he
himself committed; in the next place, we ought to employ some portion
of a demurrer, and to show by whom, and through whose agency, and
how, and when that matter ought to have been tried, or adjudged, or
decided. And at the same time, we ought to show that it was not proper
that punishment should have been inflicted before any judgment was
pronounced. Then we must also point out the laws and the course of
judicial proceeding by which that offence which the accused person
punished of his own accord, might have been chastised according to
precedent, and by the regular course of justice. In the next place, it
will be right to deny that it is proper to listen to the charge which
is brought by the accused person against his victim, when he who
brings it did not choose to submit it to the decision of the judges,
and it may be urged that one ought to consider that on which no
decision has been pronounced, as if it had not been done, and after
that to point out the impudence of those men who are now before
the judges accusing the man whom they themselves condemned without
consulting the judges, and are now bringing him to trial on whom they
have already inflicted punishment. After this we may say that it is
bringing irregularity into the courts of justice, and that the judges
will be advancing further than their power authorizes them, if they
pronounce judgment at the same time in the case of the accused person,
and of him whom the accused person impeaches. And in the next place,
we may point out if this rule is established, and if men avenge one
offence by another offence, and one injury by another injury, what
vast inconvenience will ensue from such conduct, and that if the
person who is now the prosecutor had chosen to do so too, there would
have been no need of this trial at all, and that if every one else
were to do so, there would be an end of all courts of justice.

After that it may be pointed out, that even if the maiden who is now
accused by him of this crime had been convicted, he would not himself
have had any right to inflict punishment on her, so that it is a
shameful thing that the man who would have had no right to punish her,
even if she had been convicted, should have punished her without her
being even brought to trial at all. And then the accused person may
be called upon to produce the law which he says justifies his having
acted in such a manner.

After that, as we have enjoined when speaking of comparison, that that
which is mentioned in comparison should be disparaged by the accuser
as much as possible, so, too, in this kind of argument, it will be
advantageous to compare the fault of the party on whom the accusation
is retorted with the crime of the accused person who justified his
action as having been lawfully done. And after that it is necessary to
point out that that is not an action of such a sort, that on account
of it this other crime ought to have been committed. The last point,
as in the case of comparison, is the assumption of a judicial
decision, and the dilating upon it in the way of amplification, in
accordance with the rules given respecting deliberation.

XXVIII But the advocate for the defence will invalidate what is urged
by means of other statements from those topics which have already been
given. But the demurrer itself he will prove first of all, by dwelling
on the guilt and audacity of the man to whom he imputes the crime, and
by bringing it before the eyes of the judges with as much indignation
as possible if the case admits of it, and also with vehement
complaint, and afterwards by proving that the accused person chastised
the offence more lightly than the offender deserved, by comparing the
punishment inflicted with the injury done. In the next place, it will
be desirable to invalidate by opposite arguments those topics which
are handled by the prosecutor in such a way that they are capable of
being refuted and retorted, of which kind are the three last topics
which I have mentioned. But that most vehement attack of the
prosecutors, by which they attempt to prove that irregularity will be
introduced into all the courts of justice if power is given to any man
of inflicting punishment on a person who has not been convicted, will
have its force much weakened, first of all, if the injury be shown to
be such as appears intolerable not only to a good man but absolutely
to any freeman, and in the next place to be so manifest that it could
not have been denied even by the person who had done it, and moreover,
of such a kind that the person who did chastise it was the person
who above all others was bound to chastise it. So that it was not so
proper nor so honourable for that matter to be brought before a court
of justice as for it to be chastised in that manner in which, and by
that person by whom it was chastised, and lastly, that the case was
so notorious that there was no occasion whatever for a judicial
investigation into it. And here it will be proper to show, by
arguments and by other similar means, that there are very many things
so atrocious and so notorious, that it is not only not necessary, but
that it is not even desirable to wait for the slow proceedings of a
judicial trial.

There is a common topic for an accuser to employ against a person,
who, when he cannot deny the fact of which he is accused, still
derives some hope from his attempt to show that irregularity will be
introduced into all courts of justice by such proceedings. And here
there will come in the demonstration of the usefulness of judicial
proceedings, and the complaint of the misfortune of that person who
has been punished without being condemned; and the indignation to
be expressed against the audacity and cruelty of the man who has
inflicted the punishment. There is also a topic for the advocate for
the defence to employ, in complaining of the audacity of the person
whom he chastised; and in urging that the case ought to be judged
of, not by the name of the action itself, but with reference to the
intention of the person who committed it, and the cause for which, and
the time at which it was committed. And in pointing out what great
mischief will ensue either from the injurious conduct, or the
wickedness of some one, unless such excessive and undisguised audacity
were chastised by him whose reputation, or parents, or children, or
something else which either necessarily is, or at least ought to be
dear to every one, is affected, by such conduct.

XXIX. The transference of an accusation takes place when the
accusation of that crime which is imputed to one by the opposite party
is transferred to some other person or circumstance. And that is done
in two ways. For sometimes the motive itself is transferred,
and sometimes the act. We may employ this as an instance of the
transference of the motive:--"The Rhodians sent some men as
ambassadors to Athens. The quaestors did not give the ambassadors the
money for their expenses which they ought to have given them. The
ambassadors consequently did not go. They are impeached." The charge
brought against them is, "They ought to have gone." The denial is,
"They ought not." The question is, "Whether they ought." The reason
alleged is, "Because the money for their expenses, which is usually
given to ambassadors from the public treasury, was not given to them
by the quaestor." The argument brought to invalidate that reason is,
"Still you ought to have discharged the duty which was entrusted to
you by the public authority." The question for the decision of the
judges is, "Whether, as the money which ought to have been supplied
from the public treasury was not furnished to those men who were
appointed ambassadors, they were nevertheless bound to discharge the
duties of their embassy." In this class of inquiry, as in all the
other kinds, it will be desirable to see if anything can be assumed,
either from a conjectural statement of the case, or from any other
kind of statement. And after that, many arguments can be brought to
bear on this question, both from comparison, and from the transference
of the guilt to other parties.

But the prosecutor will, in the first place, if he can, defend the man
through whose fault the accused person says that that action was done;
and if he cannot, he will declare that the fault of the other party
has nothing to do with this trial, but only the fault of this man whom
he himself is accusing. Afterwards he will say that it is proper for
every one to consider only what is his own duty; and that if the one
party did wrong, that was no reason for the other doing wrong too. And
in the next place, that if the other man has committed a fault, he
ought to be accused separately as this man is, and that the accusation
of the one is not to be mixed up with the defence of the other.

But when the advocate for the defence has dealt with the other
arguments, if any arise out of other statements of the case, he will
argue in this way with reference to the transference of the charge to
other parties. In the first place, he will point out to whose fault
it was owing that the thing happened; and in the next place, as it
happened in consequence of the fault of some one else, he will point
out that he either could not or ought not to have done what the
prosecutor says he ought: that he could not, will be considered with
reference to the particulars of expediency, in which the force of
necessity is involved; that he ought not, with reference to the
honourableness of the proceeding. We will consider each part more
minutely when talking of the deliberative kind of argument. Then
he will say, that everything was done by the accused person which
depended on his own power; that less was done than ought to have been,
was the consequence of the fault of another person. After that,
in pointing out the criminality of that other person, it will be
requisite to show how great the good will and zeal of the accused
person himself was. And that must be established by proofs of this
sort--by his diligence in all the rest of the affair, by his previous
actions, or by his previous expressions. And it may be well to show
that it would have been advantageous to the man himself to have done
this, and disadvantageous not to have done it, and that to have done
it would have been more in accordance with the rest of his life, than
the not having done it, which, was owing to the fault of the other

XXX But if the criminality is not to be transferred to some particular
person, but to some circumstance, as in this very case--"If the
quaestor had been dead, and on that account the money had not been
given to the ambassadors," then, as the accusation of the other party,
and the denial of the fault is removed, it will be desirable to employ
the other topics in a similar manner, and to assume whatever is
suitable to one's purpose from the divisions of admitted facts. But
common topics are usually nearly the same to both parties, and then,
after the previous topics are taken for granted, will suit either to
the greatest certainty. The accuser will use the topic of indignation
at the fact, the defender, when the guilt belongs to another and does
not attach to himself, will urge that he does not deserve to have any
punishment inflicted on him.

But the removal of the criminality from oneself is effected when the
accused person declares, that what is attributed to him as a crime
did not affect him or his duty, and asserts that if there was any
criminality in it, it ought not to be attributed to him. That kind of
dispute is of this sort--"In the treaty which was formerly made with
the Samnites, a certain young man of noble birth held the pig which
was to be sacrificed, by the command of the general. But when the
treaty was disavowed by the senate, and the general surrendered to the
Samnites, one of the senators asserted that the man who held the pig
ought also to be given up." The charge is, "He ought to be given up."
The denial is, "He ought not." The question is, "Whether he ought or
not." The reason is, "For it was no particular duty of mine, nor did
it depend on my power, being as young as I was, and only a private
individual, and while the general was present with the supreme
authority and command, to take care that the treaty was solemnised
with all the regular formalities." The argument to invalidate this
reason is, "But since you became an accomplice in a most infamous
treaty, sanctioned with the most formal solemnities of religion, you
ought to be surrendered." The question for the judges to decide is
"Whether, since a man who had no official authority was present, by
the command of the general, aiding and abetting in the adopting of
the treaty, and in that important religious ceremony, he ought to be
surrendered to the enemy or not." This kind of question is so far
different from the previous one, because in that the accused person
admits that he ought to have done what the prosecutor says ought
to have been done, but he attributes the cause to some particular
circumstance or person, which was a hindrance to his own intention,
without having recourse to any admission. For that has greater force,
which will be understood presently. But in this case a man ought
not to accuse the opposite party, nor to attempt to transfer the
criminality to another, but he ought to show that that has not and
never has had any reference whatever to himself, either in respect
of power or duty. And in this kind of cause there is this new
circumstance, that the prosecutor often works up a fresh accusation
out of the topics employed, to remove the guilt from the accused
person. As for instance,--"If any one accuses a man who, while he was
praetor, summoned the people to take up arms for an expedition, at
a time when the consuls were in the city." For as in the previous
instance the accused person showed that the matter in question had
no connexion with his duty or his power, so in this case also, the
prosecutor himself, by removing the action done from the duty and
power of the person who is put on his trial, confirms the accusation
by this very argument. And in this case it will be proper for each
party to examine, by means of all the divisions of honour and
expediency, by examples, and tokens, and by arguing what is the duty,
or right, or power of each individual, and whether he had that right,
and duty, and power which is the subject of the present discussion, or
not. But it will be desirable for common topics to be assumed from the
case itself, if there is any room in it for expressions of indignation
or complaint.

XXI. The admission of the fact takes place, when the accused person
does not justify the fact itself, but demands to be pardoned for it.
And the parts of this division of the case are two: purgation and
deprecation. Purgation is that by which (not the action, but) the
intention of the person who is accused, is defended. That has three
subdivisions,--ignorance, accident, necessity.

Ignorance is when the person who is accused declares that he did not
know something or other. As, "There was a law in a certain nation
that no one should sacrifice a calf to Diana. Some sailors, when in a
terrible tempest they were being tossed about in the open sea, made a
vow that if they reached the harbour which they were in sight of, they
would sacrifice a calf to the god who presided over that place. Being
ignorant of the law, when they landed, they sacrificed a calf." They
are prosecuted. The accusation is, "You sacrificed a calf to a god to
whom it was unlawful to sacrifice a calf." The denial consists in the
admission which has been already stated. The reason is, "I was not
aware that it was unlawful." The argument brought to invalidate that
reason is, "Nevertheless, since you have done what was not lawful, you
are according to the law deserving of punishment." The question for
the decision of the judge is, "Whether, as he did what he ought not to
have done, and was not aware that he ought not to have done so, he is
worthy of punishment or not."

But accident is introduced into the admission when it is proved that
some power of fortune interfered with his intention; as in this
case:--"There was a law among the Lacedaemonians, that if the
contractor failed to supply victims for a certain sacrifice, he should
be accounted guilty of a capital offence; and accordingly, the man who
had contracted to supply them, when the day of the sacrifice was at
hand, began to drive in cattle from the country into the city. It
happened on a sudden that the river Eurotus, which flows by Lacedaemon,
was raised by some violent storms, and became so great and furious
that the victims could not by any possibility be conveyed across. The
contractor, for the sake of showing his own willingness, placed all
the victims on the bank of the river, in order that every one on
the other side of the river might be able to see them. But though,
everyone was aware that it was the unexpected rise of the river
which hindered him from giving effect to his zeal, still some people
prosecuted him on the capital charge." The charge was, "The victims
which you were bound to furnish for the sacrifice were not furnished."
The reply was an admission of the fact. The reason alleged was, "For
the river rose on a sudden, and on that account it was impossible to
convey them across." The argument used to invalidate that reason
was, "Nevertheless, since what the law enjoins was not done, you are
deserving of punishment." The question for the decision of the judges
was, "Whether, as in that respect the contractor did not comply with
the law, being prevented by the unexpected rise of the river
which hindered his giving effect to his zeal, he is deserving of

XXXII. But the plea of necessity is introduced when the accused person
is defended as having done what he is accused of having done under
the influence of compulsion. In this way:--"There is a law among the
Rhodians, that if any vessel with a beak is caught in their harbour,
it shall be confiscated. There was a violent storm at sea; the
violence of the winds compelled a vessel, against the will of her
crew, to take refuge in the harbour of the Rhodians. On this the
quaestor claims the vessel for the people. The captain of the ship
declared that it was not just that it should be confiscated." The
charge is, "A ship with a beak was caught in the harbour." The reply
is an admission of the fact. The reason given is, "We were driven
into the harbour by violence and necessity." The argument brought to
invalidate that reason is, "Nevertheless, according to the law that
ship ought to become the property of the people." The question for the
decision of the judge is, "Whether, as the law confiscates every ship
with a beak which is found in the harbour, and as this ship, in spite
of the endeavours of her crew, was driven into the harbour by the
violence of the tempest, it ought to be confiscated."

We have collected these examples of these three kinds of cases into
one place, because a similar rule for the arguments required for these
prevails in all of them. For in all of them, in the first place, it
is desirable, if the case itself affords any opportunity of doing so,
that a conjecture should be introduced by the accuser, in order that
that which it will be stated was not done intentionally, may be
demonstrated by some suspicious circumstances, to have been done
intentionally. In the next place, it will be well to introduce a
definition of necessity, or of accident, or of ignorance, and to add
instances to that definition, in which ignorance, or accident, or
necessity appear to have operated, and to distinguish between such
instances and the allegations put forward by the accused person, (that
is to say, to show that there is no resemblance between them,) because
this was a lighter or an easier matter, or one which did not admit of
any one's being ignorant respecting it, or one which gave no room for
accident or necessity. After that it must be shown that it might have
been avoided, and, that the accused person might have prevented it if
he had done this thing, or that thing, or that he might have guarded
against being forced to act in such a manner. And it is desirable to
prove by definitions that this conduct of his ought not to be called
imprudence, or accident, or necessity, but indolence, indifference, or

And if any necessity alleged appears to have in it anything
discreditable, it will be desirable for the opponent, by a chain of
common topics, to prove that it would have been better to suffer
anything, or even to die, rather than to submit to a necessity of the
sort. And then, from these topics, which have been already discussed
when we spoke of the question of fact, it will be desirable to inquire
into the nature of law and equity, and, as if we were dealing with
an absolute juridical question, to consider this point by itself
separately from all other points. And in this place, if there should
be an opportunity, it will be desirable to employ instances in which
there can be no room for any similar excuse, and also to institute a
comparison, showing that there would have been more reason to allow it
in them, and by reference to the divisions of deliberation, it may be
shown that it is admitted that that action which was committed by the
adversary is confessed to have been discreditable and useless, that
it is a matter of great importance, and one likely to cause great
mischief, if such conduct is overlooked by those who have authority to
punish it.

XXXIII. But the advocate for the defence will be able to convert all
these arguments, and then to use them for his own purposes. And
he will especially dwell on the defence of his intentions, and in
exaggerating the importance of that which was an obstacle to his
intentions, and he will show that he could not have done more than he
did do, and he will urge that in all things the will of the doer ought
to be regarded, and that it is quite impossible that he should be
justly convicted of not being free from guilt, and that under his name
the common powerlessness of mankind is sought to be convicted. Then,
too, he will say that nothing can be more scandalous than for a man
who is free from guilt, not also to be free from punishment. But the
common topics for the prosecutor to employ are these, one resting on
the confession of the accused person, and the other pointing out what
great licence for the violation of the law will follow, if it is once
laid down that the thing to be inquired into is not the action but
the cause of the action. The common topics for the advocate for the
defence to employ are, a complaint of that calamity which has taken
place by no fault of his, but in consequence of some overruling power,
and a complaint also of the power of fortune and the powerless
state of men, and an entreaty that the judges should consider his
intentions, and not the result. And in the employment of all these
topics it will be desirable that there should be inserted a complaint
of his own unhappy condition, and indignation at the cruelty of his

And no one ought to marvel, if in these or other instances he sees
a dispute concerning the letter of the law added to the rest of the
discussion. And we shall have hereafter to speak of this subject
separately, because some kinds of causes will have to be considered by
themselves, and with reference to their own independent merits,
and some connect with themselves some other kind of question also.
Wherefore, when everything is cleared up, it will not be difficult to
transfer to each cause whatever is suitable to that particular kind of
inquiry, as in all these instances of admission of the fact, there is
involved that dispute as to the law, which is called the question as
to the letter and spirit of the law. But as we were speaking of the
admission of the fact we gave rules for it. But in another place we
will discuss the letter and the spirit of the law. At present we will
limit our consideration to the other division of the admission of the

XXXIV. Deprecation is when it is not attempted to defend the action
in question, but entreaties to be pardoned are employed. This kind of
topic can hardly be approved of in a court of justice, because, when
the offence is admitted, it is difficult to prevail on the man who
is bound to be the chastiser of offences to pardon it. So that it is
allowable to employ that kind of address only when you do not rest the
whole cause on it. As for instance, if you were speaking in behalf of
some illustrious or gallant man, who has done great services to
the republic, you might, without appearing to have recourse to
deprecation, still employ it in this manner:--"But if, O judges, this
man, in return for the services which he has done you, and the zeal
which he has displayed in your cause at all times, were now, when he
himself is in such peril, to entreat you, in consideration of his many
good actions, to pardon this one error, it would only be what is due
both to your own character for clemency, and to his virtue, O judges,
for you to grant him this indulgence at his request." Then it will be
allowable to dwell upon the services which he has done, and by the
use of some common topic to lead the judges to feel an inclination to
pardon him.

Wherefore, although this kind of address has no proper place in
judicial proceedings, except to a certain limited extent; still,
because both the portion which is allowable must be employed at times,
and because it is often to be employed in all its force in the senate
or in the council, we will give rules for it also. For there was a
long deliberation in the senate and in the council about Syphax; and
there was a long discussion before Lucius Opimius and his bench of
assessors respecting Quintus Numitorius Pullus; and in this case the
entreaty for pardon had more influence than the strict inquiry into
the case. For he did not find it so easy to prove that he had always
been well affected towards the Roman people, by employing the
statement of the case founded on conjecture, as to show that it was
reasonable to pardon him on account of his subsequent services, when
he added the topics of deprecation to the rest of his defence.

XXXV. It will be desirable, therefore, for the man who entreats to be
pardoned for what he admits that he has done, to enumerate whatever
services of his he is able to, and, if possible, to show that they are
greater than those offences which he has committed, so that it may
appear that more good than evil has proceeded from him; and then to
put forward also the services done by his ancestors, if there are any
such; and also to show that he did what he did, not out of hatred, or
out of cruelty, but either through folly, or owing to the instigation
of some one, or for some other honourable or probable cause; and after
that to promise and undertake that he has been taught by this error of
his, and confirmed in his resolution also by the kindness of those who
pardon him, to avoid all such conduct in future. And besides this, he
may hold out a hope that he will hereafter be able, in some respect or
other, to be of great use to those who pardon him now; he will find it
serviceable to point out that he is either related to the judges,
or that he has been as far back as possible an hereditary friend
of theirs; and to express to them the earnestness of his good-will
towards them, and the nobility of the blood and dignity of those
men who are anxious for his safety. And all other qualities and
circumstances which, when attributable to persons, confer honour and
dignity on them, he, using no complaint, and avoiding all arrogance,
will point out as existing in himself, so that he may appear to
deserve some honour rather than any kind of punishment; and after that
it will be wise of him to mention other men who have been pardoned for
greater offences.

And he will do himself a great deal of good if he shows that he
himself, when in power, was merciful and inclined to pardon others.
And the offence of which he is now accused must be extenuated and
made to appear as trifling as possible; and it must be shown to be
discreditable, or at all events inexpedient, to punish such a man as
he is. After that it will be advisable to seek to move pity by use of
common topics, according to those rules which have been laid down in
the first book.

XXXVI. But the adversary will exaggerate the offences; he will say
that nothing was done ignorantly, but that everything was the result
of deliberate wickedness and cruelty. He will show that the accused
person has been pitiless, arrogant, and (if he possibly can) at all
times disaffected, and that he cannot by any possibility be rendered
friendly. If he mentions any services done by him, he will prove that
they were done for some private object, and not out of any good will;
or else he will prove that he has conceived hatred since or else that
all those services have been effaced by his frequent offences, or else
that his services are of less importance than his injuries, or that,
as he has already received adequate honours for his services, he ought
also to have punishment inflicted on him for the injuries which he has
committed. In the next place, he will urge that it is discreditable or
pernicious that he should be pardoned. And besides that, it will be
the very extremity of folly not to avail oneself of one's power over
a man, over whom one has often wished to have power, and that it is
proper to consider what feelings, or rather what hatred they ought to
entertain towards him. But one common topic to be employed will be
indignation at his offence, and another will be the argument, that it
is right to pity those who are in distress, owing to misfortune, and
not those who are in such a plight through their own wickedness.

Since, then, we have been dwelling so long on the general statement of
the case, on account of the great number of its divisions, in order
to prevent any one's mind from being so distracted by the variety
and dissimilarity of circumstances, and so led into some errors,
it appears right also to remind the reader of what remains to be
mentioned of that division of the subject, and why it remains. We have
said, that that was the juridical sort of examination in which
the nature of right and wrong, and the principles of reward and
punishment, were investigated. We have explained the causes in which
inquiry into right and wrong is proceeded with. It remains now to
explain the principles which regulate the distribution of rewards and

XXXVII. For there are many causes which consist of a demand of some
reward. For there is often question before the judges of the rewards
to be conferred on prosecutors, and very often some reward is claimed
for them from the senate, or from the bench of judges. And it is not
advisable that any one should think that, when we are adducing some
instance which is under discussion in the senate, we by so doing are
abandoning the class of judicial examples. For whatever is said
with reference to approving or disapproving of a person, when the
consideration of the opinions of the judges is adapted to that form of
expression, that, even although it is treated with reference to the
language in which the opinion is couched, is a deliberative argument,
still, because it has especial reference to some person, it is to be
accounted also judicial. And altogether, a man who has diligently
investigated the meaning and nature of all causes will perceive that
they differ both in character and in form; but in the other divisions
he will see them all consistent with each other, and every one
connected with the other. At present, let us consider the question of
rewards. Lucius Licinius Crassus, the consul, pursued and destroyed a
band of people in the province of the Nearer Gaul, who were collected
together under no known or regular leader, and who had no name or
number of sufficient importance to be entitled enemies of the Roman
people; but still they made the province unsafe by their constant
sallies and piratical outbreaks. He returns to Rome. He demands a
triumph. Here, as also in the case of the employment of deprecation,
it does not at all concern us to supply reasons to establish and to
invalidate such a claim, and so to come before the judges; because,
unless some other statement of the case is also put forth, or some
portion of such statement, the matter for the decision of the judges
will be a simple one, and will be contained in the question itself. In
the case of the employment of deprecation, in this manner: "Whether
so and so ought to be punished." In this instance, in such a manner:
"Whether he ought to be rewarded."

Now we will furnish some topics suitable for the investigation into
the principles of rewards.

XXXVIII. The principle, then, on which rewards are conferred is
distributable into four divisions: as to the services done; the person
who has done them; the kind of reward which is to be conferred; and
the means of conferring it. The services done will be considered with
reference to their own intrinsic merits, and to the time, and to
the disposition of the man who did them, and to their attendant
circumstances. They will be examined with reference to their own
intrinsic merits, in this manner:--Whether they are important or
unimportant; whether they were difficult or easy; whether they are
of a common or extraordinary nature; whether they are considered
honourable on true or false principles. And with reference to the time
at which they were done:--If they were done at a time when we had need
of them; when other men could or would not help them; if they were
done when all other hope had failed. With reference to the disposition
of the man who did them:--If he did not do them with a view to any
advantage of his own, but if he did everything else for the express
purpose of being able to do this afterwards. And with reference to the
attendant circumstances:--If what was done appears not to have been
done by chance, but in consequence of some deliberate design, or if
chance appears to have hindered the design.

But, with respect to the man who did the service in question, it will
be requisite to consider in what manner he has lived, and what expense
or labour he has devoted to that object; whether he has at any time
done any other similar action; whether he is claiming a reward
for himself for what is in reality the result of another person's
exertions, or of the kindness of the gods. Whether he has ever, in the
case of any one else, pronounced that he ought not to be rewarded for
such a reason; or, whether he has already had sufficient honour paid
to him for what he has done; or, whether what has been done is an
action of such a sort that, if he had not done it, he would have been
deserving of punishment; but that he does not deserve reward for
having done it; or, whether he is premature in his demand for a
reward, and is proposing to sell an uncertain hope for a certain
reward; or, whether he claims the reward in order to avoid some
punishment, by its appearing as if the case had already been decided
in his favour.

XXXIX. But as to the question of the reward, it will be necessary to
consider what reward, how great a reward is claimed, and why it is
claimed; and also, to what reward, and to how great a reward, the
conduct in question is entitled. And in the next place, it will be
requisite to inquire what men had such honours paid them in the time
of our ancestors, and for what causes those honours were paid. And, in
the next place, it will be urged that they ought not to be made too
common. And this will be one common topic for any one who speaks in
opposition to a person who claims a reward;--that rewards for virtue
and eminent services ought to be considered serious and holy things,
and that they ought not to be conferred on worthless men, or to be
made common by being bestowed on men of no particular eminence. And
another will be, to urge that men will become less eager to practise
virtue when the reward of virtue has been made common; for those
things which are scarce and difficult of attainment appear honourable
and acceptable to men. And a third topic is, to put the question,
whether, if there are any instances of men who, in the times of our
ancestors, were thought worthy of such honours on account of their
eminent virtue, they will not be likely to think it some diminution
of their own glory, when they see that such men as these have such
rewards conferred on them. And then comes the enumeration of those
men, and the comparison of them with those against whom the orator is
speaking. But the topics to be used by the man who is claiming the
reward are, first of all, the exaggeration of his own action; and
next, the comparison of the actions of those men who have had rewards
conferred on them with his own; and lastly, he will urge that other
men will be repelled from the pursuit of virtue if he himself is
denied the reward to which he is entitled.

But the means of conferring the rewards are taken into consideration
when any pecuniary reward is asked for; for then it is necessary to
consider whether there is an abundance of land, and revenue, and
money, or a dearth of them. The common topics are,--that it is
desirable to increase the resources of the state, not to diminish
them; and that he is a shameless man who is not content with gratitude
in requital of his services, but who demands also solid rewards. But,
on the other hand, it may be urged, that it is a sordid thing to
argue about money, when the question is about showing gratitude to a
benefactor; and that the claimant is not asking wages for a piece of
work, but honour such as is due for an important service.

And we have now said enough about the statements of cases; now it
seems necessary to speak of those controversies which turn upon the
letter of the law.

XL. The controversy turns upon the letter of the law when some doubt
arises from the consideration of the exact terms in which it is drawn
up. That arises from ambiguity, from the letter of the law, from its
intention, from contrary laws, from ratiocination, and definition. But
a controversy arises from ambiguity, when it is an obscure point what
was the intention of the writer, because the written words mean two or
even more different things. In this manner:--"The father of a family,
when he was making his son his heir, left a hundredweight of silver
plate to his wife, in these terms:

"Let my heir give my wife a hundredweight of silver plate, consisting
of such vessels as may be chosen. After he was dead, the mother
demands of her son some very magnificent vessels of very valuable
carving. He says that he is only bound to give her those vessels which
he himself chooses." Here, in the first place, it is necessary to show
if possible that the will has not been drawn up in ambiguous terms,
because all men in ordinary conversation are accustomed to employ that
expression, whether consisting of one word or more, in that meaning in
which the speaker hopes to show that this is to be understood. Then
it is desirable to prove that from both the preceding and subsequent
language of the will, the real meaning which is being sought may
be made evident. So that if all the words, or most of them, were
considered separately by themselves, they would appear of doubtful
meaning. But as for those which can be made intelligible by a
consideration of the whole document, these have no business to be
thought obscure.

In the next place, it will be proper to draw one's conclusion as to
the intentions which were entertained by the writer from all his other
writings, and actions, and sayings, and his general disposition, and
from the usual tenor of his life; and to scrutinise that very document
in which this ambiguous phrase is contained which is the subject of
the present inquiry, all over, in all its parts, so as to see whether
there is anything opposite to that interpretation which we contend
for, or contrary to that which the adversary insists on adopting. For
it will be easy to consider what it is probable that the man who drew
up the document intended, from its whole tenor, and from the
character of the writer, and from those other circumstances which are
characteristic of the persons concerned. In the next place, it will
be desirable to show, if the facts of the case itself afford any
opportunity for doing so, that that meaning which the opposite party
contends for, is a much more inconvenient one to adopt than that which
we have assumed to be the proper one, because there is no possible
means of carrying out or complying with that other meaning; but what
we contend for can be accomplished with great ease and convenience.

As in this law (for there is no objection to citing an imaginary
one for the sake of giving an instance, in order to the more easy
comprehension of the matter):--"Let not a prostitute have a golden
crown. If such a case exists, it must be confiscated." Now, in
opposition to a man who contended that that was to become public
property in accordance with this law, it might be argued, "that there
could be no way of making a prostitute public property, and there is
no intelligible meaning for the law if that is what is to be adopted
as its proper construction; but as to the confiscation of anything
made of gold, the management and the result is easy, and there is no
difficulty in it."

XLI. And it will be desirable also to pay diligent attention to this
point, whether if that sense is sanctioned which the opposite party
contends for, any more advantageous, or honourable, or necessary
object appears to have been omitted by the framer of the document in
question. That will be done if we can prove that the object which
we are attempting to prove is either honourable, or expedient, or
necessary; and if we can also assert that the interpretation which our
adversaries insist upon, is not at all entitled to such a character.
In the next place, if there is in the law itself any controversy
arising from any ambiguity, it will be requisite to take great care to
show that the meaning which our adversaries adopt is provided for in
some other law. But it will be very serviceable indeed to point out
how the testator would have expressed himself, if he had wished the
interpretation which the adversary puts upon his words to be carried
into execution or understood. As for instance, in this cause, the one,
I mean, in which the question is about the silver plate, the woman
might argue, "That there was no use in adding the words 'as may be
chosen,' if the matter was left to the selection of the heir; for if
no such words had been inserted, there could have been no doubt at all
that the heir might have given whatever he himself chose. So that it
was downright madness, if he wished to take precautions in favour of
his heir, to add words which might have been wholly left out without
such omission prejudicing his heir's welfare."

Wherefore, it will be exceedingly advisable to employ this species of
argument in such causes:--"If he had written with this intention he
would not have employed that word; he would not have placed that word
in that place;" for it is from such particulars as these that it is
easiest to collect the intention of the writer. In the next place, it
is necessary to inquire when the document was drawn up, in order that
it may be understood what it was likely that he should have wished
at such a time. Afterwards it will be advisable to point out, by
reference to the topics furnished by the deliberative argument, what
is more useful and what more honourable to the testator to write, and
to the adversary to prove; and it will be well for both parties to
employ common topics, if there is any room for extending either

XLII. A controversy arises with respect to the letter of the document
and to its meaning, when one party employs the very words which are
set down in the paper; and the other applies all his arguments to that
which he affirms that the framer of the document intended. But the
intention of the framer of the document must be proved by the man who
defends himself, by reference to that intention, to have always the
same object in view and the same meaning; and it must also, either
by reference to the action or to some result, be adapted to the time
which the inquiry concerns. It must be proved always to have the same
object in view, in this way:--"The head of a house, at a time when he
had no children, but had a wife, inserted this clause in his will: 'If
I have a son or sons born to me, he or they is or are to be my heir
or heirs.' Then follow the ordinary provisions. After that comes the
following clause: 'If my son dies before he comes into the property,
which is held in trust for him, then,' says the clause, 'you shall be
my reversionary heir.' He never has a son. His next of kin raise a
dispute with the man who is named as the heir, in the case of the
testator's son dying before he comes into the property which his
guardians are holding for him." In this case it cannot be said that
the meaning of the testator ought to be made to suit the time or some
particular result, because that intention alone is proved on which the
man who is arguing against the language of the will relies, in order
to defend his own right to the inheritance.

There is another class of topics which introduce the question as to
the meaning of expressions, in which the mere simple intention of the
framer is not endeavoured to be proved, for that has the same weight
with reference to every period and every action; but it is argued that
it ought to be interpreted with reference to some particular action,
or to some event happening at that particular time. And that is
especially supported by the divisions of the juridical assumptive mode
of investigation. For then the comparison is instituted; as in the
case of "a man who, though the law forbad the gates to be opened
by night, did open them in a certain war, and admitted some
reinforcements into the town, in order to prevent their being
overwhelmed by the enemy if they remained outside the gates; because
the enemy were encamped close to the walls." Then comes the retorting
of the charge; as in the case of "that soldier who, when the common
law of all men forbad any one to kill a man, slew his own military
tribune who was attempting to offer violence to him." Then comes
the exculpation; as in the case of "that man who, when the law had
appointed some particular days within which he was to proceed on his
embassy, did not set out because the quaestor did not furnish him with
money for his expenses." Then comes the admission of the fact by way
of purgation, and also by the excuse of ignorance; as "in the case of
the sacrificing a calf;" and with reference to compulsion, as "in the
case of the beaked ship;" and with reference to accident, as "in the
case of the sudden rise of the river Eurotas." Wherefore, it is best
that the meaning should be introduced in such a way, as that the
framer of the law should be proved to have intended some one definite
thing; else in such a way that he should be proved to have meant this
particular thing, under these circumstances, and at this time.

XLIII. He, therefore, who is defending the exact language of the law,
will generally be able to use all these topics; and will always be
able to use the greater part of them. First of all, he will employ a
panegyric of the framer of it, and the common topic that those who
are the judges have no business to consider anything except what
is expressly stated in the law; and so much the more if any legal
document be brought forward, that is to say, either the law itself,
or some portion of the law. Afterwards--and this is a point of the
greatest importance--he will employ a comparison of the action or of
the charge brought by the opposite party with the actual words of the
law; he will show what is contained in the law, what has been done,
what the judge has sworn. And it will be well to vary this topic in
many ways, sometimes professing to wonder in his own mind what can be
said against this argument; sometimes recurring to the duty of the
judge, and asking of him what more he can think it requisite to
hear, or what further he expects; sometimes by bringing forward
the adversary himself, as if in the position of a person making an
accusation; that is to say, by asking him whether he denies that the
law is drawn up in that manner, or whether he denies that he himself
has contravened it, or disputed it. If he denies either of these
points, then one must avow that one will say no more; if he denies
neither of them, and yet continues to urge his arguments in opposition
to one, then one must say that it is impossible for any one ever to
expect to see a more impudent man. And it will be well to dwell on
this point as if nothing besides were to be said, as if nothing could
be said in contradiction, by reciting several times over what is
written; by often contrasting the conduct of the adversary with what
is written; and sometimes by recurring vehemently to the topic of the
judge himself; in which one will remind the judge of what oath he has
taken, of what his conduct is bound to be; and urge that there are two
causes on account of which a judge is bound to hesitate, one if the
law be obscurely worded, the other if the adversary denies anything.
But as in this instance the wording of the law is plain, and the
adversary admits every fact that is alleged, the judge has now nothing
to do but to fulfil the law, and not to interpret it.

XLIV. When this point has been sufficiently insisted on, then it will
be advisable to do away with the effect of those things which the
adversary has been able to urge by way of objection. But such
objections will be made if the framer of the law can be absolutely
proved to have meant one thing, and written another; as in that
dispute concerning the will which we mentioned just now: or some
adventitious cause may be alleged why it was not possible or not
desirable to obey the written law minutely. If it is stated that the
framer of the law meant one thing, and wrote another, then he who
appeals to the letter of the law will say that it is our business not
to discuss the intention of a man who has left us a plain proof of
that intention, to prevent our having any doubt about it; and that
many inconveniences must ensue if the principle is laid down that we
may depart from the letter of the law. For that then those who frame
laws will not think that the laws which they are making will remain
firm; and those who are judges will have no certain principle to
follow if once they get into the habit of departing from the letter of
the law. But if the intention of the framer of the law is what is to
be looked at, then it is he, and not his adversaries, who relies on
the meaning of the lawgiver. For that that person comes much nearer to
the intention of the framer of a law who interprets it from his own
writings, than he who does not look at the meaning of the framer of
the law by that writing of his own which he has left to be as it were
an image of his meaning, but who investigates it under the guidance of
some private suspicions of his own.

If the party who stands on the meaning of the lawgiver brings forward
any reasons, then, in the first place, it will be necessary to reply
to those reasons; to urge how absurd it is for a man not to deny that
he has acted contrary to the law, but at the same time to give some
reason for having acted so. Then one will say too that all things are
turned upside down; that formerly prosecutors were in the habit of
trying to persuade the judges that the person who was being prosecuted
before them was implicated in some fault, and of alleging some reasons
which had instigated him to commit this fault; but that now the
accused person himself is giving the reasons why he has offended
against the laws. Then it will be proper to introduce this division,
each portion of which will have many lines of argument suitable to it:
in the first place, that there is no law with reference to which it
is allowable to allege any reasons contrary to the law; in the next
place, that if such a course is admissible in any law, this is such a
law that it is not admissible with respect to it; and lastly, that,
even if such reasons ever might be alleged, at all events this is not
such a reason.

XLV. The first part of the argument is confirmed by pretty nearly the
same topics as these: that the framer of the law was not deficient in
either ability, or pains, or any faculty requisite to enable him to
express plainly what his intention was; that it would not have been
either displeasing or difficult to him to insert such an exception as
that which the opposite party contends for in his law, if he thought
any exception requisite; and in fact, that those people who frame
laws often do insert clauses of exceptions. After that it is well to
enumerate some of the laws which have exceptional clauses attached to
them, and to take especial care to see whether in the law itself which
is under discussion there is any exception made in any chapter, or
whether the same man who framed this law has made exceptions in other
laws, so that it may be more naturally inferred that he would have
made exceptions in this one, if he had thought exceptions requisite;
and it will be well also to show that to admit of a reason for
violating the law is the same thing as abrogating the law, because
when once such a reason is taken into consideration it is no use to
consider it with reference to the law, inasmuch as it is not stated in
the law. And if such a principle is once laid down, then a reason for
violating the law, and a licence to do so, is given to every one, as
soon as they perceive that you as judges decide the matter in a way
which depends on the ability of the man who has violated the law, and
not with reference to the law which you have sworn to administer.
Then, too, one must point out that all principles on which judges are
to judge, and citizens are to live, will be thrown into confusion if
the laws are once departed from; for the judges will not have any
rules to follow, if they depart from what is set down in the law, and
no principles on which they can reprove others for having acted in
defiance of the law. And that all the rest of the citizens will be
ignorant what they are to do, if each of them regulates all his
actions according to his own ideas, and to whatever whim or fancy
comes into his head, and not according to the common statute law of
the state.

After that it will be suitable to ask the judges why they occupy
themselves at all with the business of other people;--why they allow
themselves to be harassed in discharging the offices of the republic,
when they might often spend the time in promoting their own ends and
private interests;--why they take an oath in a certain form;--why they
assemble at a regular time and go away at a regular time;--why no
one of them ever alleges any reason for being less frequent in his
discharge of his duty to the republic, except such as is set down in
some formal law as an exception. And one may ask, whether they think
it right that they should be bound down and exposed to so much
inconvenience by the laws, and at the same time allow our adversaries
to disregard the laws. After that it will be natural to put the
question to the judges whether, when the party accused himself
endeavours to set down in the law, as an exception, that particular
case in which he admits that he has violated the law, they will
consent to it. And to ask also, whether what he has actually done is
more scandalous and more shameless than the exception which he wishes
to insert in the law;--what indeed can be more shameless? Even if the
judges were inclined to make such an addition to the law, would the
people permit it? One might also press upon them that this is even a
more scandalous measure, when they are unable to make an alteration in
the language and letter of the law, to alter it in the actual facts,
and to give a decision contrary to it; and besides, that it is a
scandalous thing that anything should be taken from the law, or that
the law should be abrogated or changed in any part whatever, without
the people having any opportunity of knowing, or approving, or
disapproving of what is done; that such conduct is calculated to bring
the judges themselves into great odium; that it is not the proper time
nor opportunity for amending the laws; that this ought only to be
brought forward in an assembly of the people, and only to be done by
the people; that if they now do so, the speaker would like to know
who is the maker of the new law, and who are to obey it; that he
sees actions impending, and wishes to prevent them; that as all
such proceedings as these are exceedingly useless and abundantly
discreditable, the law, whatever it is like, ought, while it exists,
to be maintained by the judges, and hereafter, if it is disapproved
of, to be amended by the people. Besides this, if there were no
written law, we should take great trouble to find one; and we should
not place any confidence in that man, not even if he were in no
personal danger himself; but now, when there is a written law, it is
downright insanity to attend to what that man says who has violated
the law, rather than to the language of the law itself. By these and
similar arguments it is proved that it is not right to admit any
excuse which is contrary to the letter of the law.

XLVI. The second part is that in which it is desirable to prove that
if such a proceeding is right with respect to other laws, it is not
advisable with respect to this one. This will be shown if the
law appears to refer to matters of the greatest importance, and
usefulness, and honourableness, and sanctity; so that it is
disadvantageous, or discreditable, or impious not to obey the law as
carefully as possible in such a matter. Or the law may be proved to
have been drawn up so carefully, and such great diligence may be shown
to have been exercised in framing each separate provision of it, and
in making every exception that was allowable, that it is not at all
probable that anything proper to be inserted has been omitted in so
carefully considered a document.

The third topic is one exceedingly necessary for a man who is arguing
in defence of the letter of the law; by which it may be urged, that
even if it is decent for an excuse to be admitted contrary to
the letter of the law, still that excuse which is alleged by his
adversaries is of all others the least proper to be so alleged. And
this topic is necessary for him on this account,--because the man who
is arguing against the letter of the law ought always to have some
point of equity to allege on his side. For it is the greatest possible
impudence for a man who wishes to establish some point in opposition
to the exact letter of the law, not to attempt to fortify himself in
so doing, with the assistance of the law. If therefore the accuser in
any respect weakens the defence by this topic, he will appear in
every respect to have more justice and probability in favour of
his accusation. For all the former part of his speech has had this
object,--that the judges should feel it impossible, even if they
wished it, to avoid condemning the accused person; but this part has
for its object the making them wish to give such a decision, even if
it were not inevitable.

And that result will be obtained, if we use those topics by which
guilt may be proved not to be in the man who defends himself, by using
the topic of comparison, or by getting rid of the accusation, or by
recrimination, or by some species of confession, (concerning all which
topics we have already written with all the precision of which we were
capable,) and if we take those which the case will admit of for the
purpose of throwing discredit on the argument of our adversary;--or
if reasons and arguments are adduced to show why or with what design
those expressions were inserted in the law or will in question, so
that our side of the question may appear established by the meaning
and intention of the writer, and not only by the language which he has
employed. Or the fact may be proved by other statements and arguments.

XLVII. But any one who speaks against the letter of the law will first
of all introduce that topic by which the equity of the excuse is
proved; or he will point out with what feelings, with what design, and
on what account he did the action in question. And whatever excuse he
alleges he will defend according to some of the rules which I have
already given with respect to assumptions. And when he has dwelt on
this topic for some time, and set forth the principles of his conduct
and the equity of his cause in the most specious manner he can, he
will also add, in opposition to the arguments of his adversaries,
that it is from these topics for the most part that excuses which are
admissible ought to be drawn. He will urge that there is no law which
sanctions the doing of any disadvantageous or unjust action; that all
punishments which are enacted by the laws have been enacted for the
sake of chastising guilt and wickedness; that the very framer of the
laws, if he were alive, would approve of this conduct, and would
have done the very same thing himself if he had been in similar
circumstances. And that it is on this account that the framer of the
law appointed judges of a certain rank and age, in order that there
might be men, not capable merely of reading out what he had written,
which any boy might do, but able also to understand his thoughts and
to interpret his intentions. He will add, that that framer of the law,
if he had been intrusting the laws which he was drawing up to foolish
men and illiterate judges, would have set down everything with the
most scrupulous diligence; but, as it is, because he was aware what
sort of men were to be the judges, he did not put down many things
which appeared to him to be evident; and he expected that you would be
not mere readers of his writings, but interpreters of his intentions.
Afterwards he will proceed to ask his adversaries--"What would you
say if I had done so and so?" "What would you think if so and so had
happened?" "Suppose any one of those things had happened which would
have had a most unfailing excuse, or a most undeniable necessity,
would you then have prosecuted me?" But the law has nowhere made any
such exception. It follows, therefore, that it is not every possible
circumstance which is mentioned in the written law but that some
things which are self-evident are guarded against by unexpressed
exceptions. Then he will urge, that nothing could be carried on
properly either by the laws or by any written document whatever, or
even in daily conversation, or in the commands given in a private
household, if every one chose to keep his eyes on the exact language
of the order, and not to take into consideration the intentions of him
who uttered the order.

XLVIII. After that he will be able, by reference to the divisions
of usefulness and honour, to point out how inexpedient or how
dishonourable that would have been which the opposite party say ought
to have been done, or to be done now. And on the other hand, how
expedient and how honourable that is which we have done, or demand
should be done. In the next place, he will urge that we set a value on
our laws not on account of their wording, which is a slight and
often obscure indication of their intention, but on account of the
usefulness of those things concerning which they are written, and the
wisdom and diligence of those men who wrote them. Afterwards he will
proceed to describe what the law is, so that it shall appear to
consist of meanings, not of words; and that the judge may appear to be
obedient to the law, who follows its meaning and not its strict words.
After that he will urge how scandalous it is that he should have the
same punishment inflicted on him who has violated the law out of some
mere wickedness and audacity, as on the man who, on account of some
honourable or unavoidable reason, has departed not from the spirit of
the law, but from its letter. And by these and similar arguments
he will endeavour to prove that the excuse is admissible, and is
admissible in this law, and that the excuse which he himself is
alleging ought to be admitted.

And, as we said that this would be exceedingly useful to the man who
was relying on the letter of the law, to detract in some degree from
that equity which appeared to be on the side of the adversary; so also
it will be of the greatest advantage to the man who is speaking in
opposition to the letter of the law, to convert something of the exact
letter of the law to his own side of the argument, or else to show
that something has been expressed ambiguously. And afterwards, to
take that portion of the doubtful expression which may serve his own
purpose, and defend it; or else to introduce some definition of
a word, and to bring over the meaning of that word which seems
unfavourable to him to the advantage of his own cause, or else, from
what is set down in the law to introduce something which is not set
down by means of ratiocination, which we will speak of presently. But
in whatever matter, however little probable it may be, he defends
himself by an appeal to the exact letter of the law, even when his
case is full of equity, he will unavoidably gain a great advantage,
because if he can withdraw from the cause of the opposite party that
point on which it principally relies, he will mitigate and take off
the effect of all its violence and energy. But all the rest of the
common topics taken from the divisions of assumptive argument will
suit each side of the question. It will also be suitable for him whose
argument takes its stand on the letter of the law, to urge that laws
ought to be looked at, not with reference to the advantage of that man
who has violated them, but according to their own intrinsic value, and
that nothing ought to be considered more precious than the laws. On
the other side, the speaker will urge, that laws depend upon the
intention of the framer of them, and upon the general advantage,
not upon words, and also, how scandalous it is for equity to be
overwhelmed by a heap of letters, and defended in vain by the
intention of the man who drew up the law.

XLIX. But from contrary laws a controversy arises, when two or more
laws appear to be at variance with one another In this manner--There
is a law, "That he who has slain a tyrant shall receive the regard of
men who conquer at Olympia, and shall also ask whatever he pleases of
the magistrate, and the magistrate shall grant it to him." There is
also another law--"When a tyrant is slain, the magistrate shall also
put to death his five nearest relations." Alexander, who was the tyrant
of Pherse, a city in Thessaly, was slain by his own wife, whose name
was Thebe, at night, when he was in bed with her, she, as a reward,
demands the liberty of her son whom she had by the tyrant. Some say
that according to this law that son ought to be put to death. The
matter is referred to a court of justice. Now in a case of this
kind the same topics and the same rules will suit each side of the
question, because each party is bound to establish his own law, and
to invalidate the one contrary to it. First of all, therefore, it is
requisite to show the nature of the laws, by considering which law has
reference to more important, that is to say, to more honourable and
more necessary matters. From which it results, that if two or more,
or ever so many laws cannot all be maintained, because they are at
variance with one another, that one ought to be considered the most
desirable to be maintained, which appears to have reference to the
most important matters. Then comes the question also, which law was
passed last; for the newest law is the most important. And also, which
law enjoins anything, and which merely allows it; for that which is
enjoined is necessary, that which is allowed is optional. Also one
must consider by which law a penalty is appointed for the violation
of it; or which has the heaviest penalty attached to it; for that law
must be the most carefully maintained which is sanctioned by the most
severe penalties. Again, one must inquire which law enjoins, and which
forbids anything; for it often happens that the law which forbids
something appears by some exception as it were to amend the law which
commands something. Then, too, it is right to consider which law
comprehends the entire class of subjects to which it refers, and which
embraces only a part of the question; which may be applied generally
to many classes of questions, and which appears to have been framed to
apply to some special subject. For that which has been drawn up with
reference to some particular division of a subject, or for some
special purpose, appears to come nearer to the subject under
discussion, and to have more immediate connexion with the present
action. Then arises the question, which is the thing which according
to the law must be done immediately; which will admit of some delay or
slackness in the execution. For it is right that that should be done
first which must be done immediately. In the next place, it is well to
take pains that the law one is advocating shall appear to depend on
its own precise language; and that the law with a contrary sense
should appear to be introduced with a doubtful interpretation, or by
some ratiocination or definition, in order that that law which is
expressed in plain language may appear to be the more solemn and
efficient. After that it will be well to add the meaning of the law
which is on one's own side according to the strict letter of it; and
also to explain the opposite law so as to make it appear to have
another meaning, in order that, if possible, they may not seem to be
inconsistent with one another. And, last of all, it will be a good
thing, if the cause shall afford any opportunity for so doing, to take
care that on our principles both the laws may seem to be upheld, but
that on the principle contended for by our adversaries one of them
must be put aside. It will be well also to consider all the common
topics and those which the cause itself furnishes, and to take them
from the most highly esteemed divisions of the subjects of expediency
and honour, showing by means of amplification which law it is most
desirable to adhere to.

L. From ratiocination there arises a controversy when, from what
is written somewhere or other, one arrives at what is not written
anywhere; in this way:--"If a man is mad, let those of his family and
his next of kin have the regulation of himself and of his property."
And there is another law--"In whatever manner a head of a family has
made his will respecting his family and his property, so let it be."
And another law--"If a head of a family dies intestate, his family
and property shall belong to his relations and to his next of kin." A
certain man was convicted of having murdered his father. Immediately,
because he was not able to escape, wooden shoes were put upon his
feet, and his mouth was covered with a leathern bag, and bound fast,
then he was led away to prison, that he might remain there while a bag
was got ready for him to be put into and thrown into a river. In
the meantime some of his friends bring tablets to the prison, and
introduce witnesses also; they put down those men as his heirs whom he
himself desires; the will is sealed; the man is afterwards executed.
There is a dispute between those who are set down as his heirs in the
will, and his next of kin, about his inheritance. In this instance
there is no positive law alleged which takes away the power of making
a will from people who are in such a situation. But from other laws,
both those which inflict a punishment of this character on a man
guilty of such a crime, and those, too, which relate to a man's power
of making a will, it is possible to come by means of ratiocination to
a conclusion of this sort, that it is proper to inquire whether he had
the power of making a will.

But we think that these and such as these are the common topics
suitable to an argument of this description. In the first place, a
panegyric upon, and a confirmation of that writing which you are
producing. Then a comparison of the matter which is the subject of
discussion, with that which is a settled case, in such a manner that
the case which is under investigation may appear to resemble that
about which there are settled and notorious rules. After that, one
will express admiration, (by way of comparison), how it can happen
that a man who admits that this is fair, can deny that other thing,
which is either more equitable still, or which rests on exactly
similar principles; then, too, one will contend that the reason why
there is no precise law drawn up for such a case, is because, as there
was one in existence applicable to the other case, the framer of that
law thought that no one could possibly entertain a doubt in this case;
and afterwards it will be well to urge that there are many cases not
provided for in many laws, which beyond all question were passed over
merely because the rule as to them could be so easily collected out
of the other cases which were provided for; and last of all, it is
necessary to point out what the equity of the case requires, as is
done in a plain judicial case.

But the speaker who is arguing on the other side is bound to try and
invalidate the comparison instituted, which he will do if he can show
that that which is compared is different from that with which it is
compared in kind, in nature, in effect, in importance, in time, in
situation, in character, in the opinion entertained of it; if it is
shown also in what class that which is adduced by way of comparison
ought to stand, and in what rank that also ought to be considered, for
the sake of which the other thing is mentioned. After that, it will be
well to point out how one case differs from the other, so that it does
not seem that any one ought to have the same opinion of both of them.
And if he himself also is able to have recourse to ratiocination, he
must use the same ratiocination which has been already spoken of. If
he cannot, then he will declare that it is not proper to consider
anything except what is written; that all laws are put in danger if
comparisons are once allowed to be instituted; that there is hardly
anything which does not seem somewhat like something else; that when
there are many circumstances wholly dissimilar, still there are
separate laws for each individual case; and that all things can be
proved to be like or unlike to each other. The common topics derived
from ratiocination ought to arrive by conjecture from that which is
written to that which is not written; and one may urge that no one can
embrace every imaginable case in a written law, but that he frames a
law best who takes care to make one thing understood from another. One
may urge, too, that in opposition to a ratiocination of this sort,
conjecture is no better than a divination, and that it would be a
sign of a very stupid framer of laws not to be able to provide for
everything which he wished to.

LI. Definition is when a word is set down in a written document, whose
exact meaning is inquired into, in this manner:--There is a law,
"Whoever in a severe tempest desert their ship shall be deprived of
all their property; the ship and the cargo shall belong to those men
who remain by the ship." Two men, when they were sailing on the open
sea, and when the ship belonged to one of them and the cargo to
another, noticed a shipwrecked man swimming and holding out his hands
to them. Being moved with pity they directed the ship towards him, and
took the man into their vessel. A little afterwards the storm began to
toss them also about very violently, to such a degree that the owner
of the ship, who was also the pilot, got into a little boat, and from
that he guided the ship as well as he could by the rope by which the
boat was fastened to the ship, and so towed along; but the man to whom
the cargo belonged threw himself on his sword in despair. On this
the shipwrecked man took the helm and assisted the ship as far as he
could. But after the waves went down and the tempest abated, the ship
arrived in harbour. But the man who had fallen on his sword turned out
to be but slightly wounded, and easily recovered of his wound. And
then every one of these three men claimed the ship and cargo for his
own. Every one of them relies on the letter of the law to support
their claim, and a dispute arises as to the meaning of the words.
For they seek to ascertain by definitions what is the meaning of the
expressions "to abandon the ship," "to stand by the ship," and even
what "the ship" itself is. And the question must be dealt with with
reference to all the same topics as are employed in a statement of the
case which turns upon a definition.

Now, having explained all those argumentations which are adapted to


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