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 argument.
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 the judicial class of causes, we will proceed in regular order to give topics and rules for the deliberative and demonstrative class of arguments; not that there is any cause which is not at all times conversant with some statement of the case or other; but because there are nevertheless some topics peculiar to these causes, not separated from the statement of the case, but adapted to the objects which are more especially kept in view by these kinds of argumentation.
For it seems desirable that in the judicial kind the proper end is equity; that is to say, some division of honesty. But in the deliberative kind Aristotle thinks that the proper object is expediency; we ourselves, that it is expediency and honesty combined. In the demonstrative kind it is honesty only. Wherefore, in this kind of cause also, some kinds of argumentation will be handled in a common manner, and in similar ways to one another. Some will be discussed more separately with reference to their object, which is what we must always keep in view in every kind of speech. And we should have no objection to give an example of each kind of statement of the case, if we did not see that, as obscure things are made more plain by speaking of them, so also things which are plain are sometimes made more obscure by a speech. At present let us go on to precepts of deliberation.
LII. Of matters to be aimed at there are three classes; and on the other hand there is a corresponding number of things to be avoided. For there is something which of its own intrinsic force draws us to itself, not catching us by any idea of emolument, but alluring us by its own dignity. Of this class are virtue, science, truth. And there is something else which seems desirable, not on account of its own excellence or nature, but on account of its advantage and of the utility to be derived from it—such as money. There are also some things formed of parts of these others in combination, which allure us and draw us after them by their own intrinsic character and dignity, and which also hold out some prospect of advantage to us, to induce us to seek it more eagerly, as friendship, and a fair reputation; and from these their opposites will easily be perceived, without our saying anything about them.
But in order that the principle may be explained in the more simple way, the rules which we have laid down shall be enumerated briefly. For those which belong to the first kind of discussion are called honourable things; those which belong to the second, are called useful things; but this third thing, because it contains some portion of what is honourable, and because the power of what is honourable is the more important part, is perceived to be altogether a compound kind, made up of a twofold division; still it derives its name from its better part, and is called honourable. From this it follows, that there are these parts in things which are desirable,—what is honourable, and what is useful. And these parts in things which are to be avoided,—what is dishonourable, and what is useless. Now to these two things there are two other important circumstances to be added,—necessity and affection: the one of which is considered with reference to force, the other with reference to circumstances and persons. Hereafter we will write more explicitly about each separately. At present we will explain first the principles of what is honourable.
LIII. That which either wholly or in some considerable portion of it is sought for its own sake, we call honourable: and as there are two divisions of it, one of which is simple and the other twofold, let us consider the simple one first. In that kind, then, virtue has embraced all things under one meaning and one name; for virtue is a habit of the mind, consistent with nature, and moderation, and reason. Wherefore, when we have become acquainted with all its divisions, it will be proper to consider the whole force of simple honesty.
It has then four divisions—prudence, justice, fortitude, and temperance. Prudence is the knowledge of things which are good, or bad, or neither good nor bad. Its parts are memory, intelligence, and foresight. Memory is that faculty by which the mind recovers the knowledge of things which have been. Intelligence is that by which it perceives what exists at present. Foresight is that by which anything is seen to be about to happen, before it does happen. Justice is a habit of the mind which attributes its proper dignity to everything, preserving a due regard to the general welfare. Its first principles proceed from nature. Subsequently some practices became established by universal custom, from a consideration of their utility; afterwards the fear of the laws and religion sanctioned proceedings which originated in nature, and had been approved of by custom.
Natural law is that which has not had its origin in the opinions of men, but has been implanted by some innate instinct, like religion, affection, gratitude, revenge, attention to one's superiors, truth. Religion is that which causes men to pay attention to, and to respect with fixed ceremonies, a certain superior nature which men call divine nature. Affection is that feeling under the influence of which kindness and careful attention is paid to those who are united to us by ties of blood, or who are devoted to the service of their country. Gratitude is that feeling in which the recollection of friendship, and of the services which we have received from another, and the inclination to requite those services, is contained. Revenge is that disposition by which violence and injury, and altogether everything which can be any injury to us, is repelled by defending oneself from it, or by avenging it. Attention is that feeling by which men obey when they think those who are eminent for worth or dignity, worthy of some special respect and honour. Truth is that by which those things which are, or which have been previously, or which are about to happen, are spoken of without any alteration.
LIV. Conventional law is a principle which has either derived its origin in a slight degree from nature, and then has been strengthened by habit, like religion; or, if we see any one of those things which we have already mentioned as proceeding from nature strengthened by habit; or, if there is anything to which antiquity has given the force of custom with the approbation of everybody: such as covenants, equity, cases already decided. A covenant is that which is agreed upon between two parties; equity is that which is equally just for every one; a case previously decided is one which has been settled by the authoritative decision of some person or persons entitled to pronounce it.
Legal right is that which is contained in that written form which is delivered to the people to be observed by them.
Fortitude is a deliberate encountering of danger and enduring of labour. Its parts are magnificence, confidence, patience, and perseverance. Magnificence is the consideration and management of important and sublime matters with a certain wide-seeing and splendid determination of mind. Confidence is that feeling by which the mind embarks in great and honourable courses with a sure hope and trust in itself. Patience is a voluntary and sustained endurance, for the sake of what is honourable or advantageous, of difficult and painful labours. Perseverance is a steady and lasting persistence in a well-considered principle.
Temperance is the form and well-regulated dominion of reason over lust and other improper affections of the mind. Its parts are continence, clemency, and modesty. Continence is that by which cupidity is kept down under the superior influence of wisdom. Clemency is that by which the violence of the mind, when causelessly excited to entertain hatred against some one else, is restrained by courtesy. Modesty is that feeling by which honourable shame acquires a valuable and lasting authority. And all these things are to be sought for themselves, even if no advantage is to be acquired by them. And it neither concerns our present purpose to prove this, nor is it agreeable to our object of being concise in laying down our rules.
But the things which are to be avoided for their own sake, are not those only which are the opposites to these; as indolence is to courage, and injustice to justice; but those also which appear to be near to and related to them, but which, in reality, are very far removed from them. As, for instance, diffidence is the opposite to confidence, and is therefore a vice; audacity is not the opposite of confidence, but is near it and akin to it, and, nevertheless, is also a vice. And in this manner there will be found a vice akin to every virtue, and either already known by some particular name—as audacity, which is akin to confidence; pertinacity, which is bordering on perseverance; superstition, which is very near religion,—or in some cases it has no fixed name. And all these things, as being the opposites of what is good, we class among things to be avoided. And enough has now been said respecting that class of honourable things which is sought in every part of it for itself alone.
LV. At present it appears desirable to speak of that in which advantage is combined with honour, and which still we style simply honourable. There are many things, then, which allure us both by their dignity and also by the advantage which may be derived from them: such as glory, dignity, influence, friendship. Glory is the fact of a person's being repeatedly spoken of to his praise; dignity is the honourable authority of a person, combined with attention and honour and worthy respect paid to him. Influence is a great abundance of power or majesty, or of any sort of resource. Friendship is a desire to do service to any one for the sake of the person himself to whom one is attached, combined with a corresponding inclination on his part towards oneself. At present, because we are speaking of civil causes, we add the consideration of advantage to friendship, so that it appears a thing to be sought for the sake of the advantage also: wishing to prevent those men from blaming us who think that we are including every kind of friendship in our definition.
But although there are some people who think that friendship is only to be desired on account of the advantage to be derived from it; some think it is to be desired for itself alone; and some, that it is to be desired both for its own sake and for the sake of the advantage to be derived from it. And which of these statements is the most true, there will be another time for considering. At present it may be laid down, as far as the orator is concerned, that friendship is a thing to be desired on both accounts. But the consideration of the different kinds of friendship, (since they are partly formed on religious considerations, and partly not; and because some friendships are old, and some new; and because some originated in kindness shown by our friends to us, and some in kindness shown by ourselves to them; and because some are more advantageous, and others less,) must have reference partly to the dignity of the causes in which it originates, partly to the occasion when it arises, and also to the services done, the religious motives entertained, and its antiquity.
LVI. But the advantages consist either in the thing itself, or in extraneous circumstances; of which, however, by far the greater portion is referable to personal advantage; as there are some things in the republic which, so to say, refer to the person of the state,—as lands, harbours, money, fleets, sailors, soldiery, allies; by all which things states preserve their safety and their liberty. There are other things also which make a thing more noble looking, and which still are less necessary; as the splendid decorating and enlarging of a city, or an extraordinary amount of wealth, or a great number of friendships and alliances. And the effect of all these things is not merely to make states safe and free from injury, but also noble and powerful. So that there appears to be two divisions of usefulness,—safety and power. Safety is the secure and unimpaired preservation of a sound state. Power is a possession of things suitable to preserving what is one's own, and to acquiring what belongs to another. And in all those things which have been already mentioned, it is proper to consider what is difficult to be done, and what can be done with ease. We call that a thing easy to be done, which can be done without great labour, or expense, or annoyance, or perhaps without any labour, expense, or annoyance at all, and in the shortest possible time. But that we call difficult to be done which, although it requires labour, expense, trouble and time, and has every possible characteristic of difficulty about it, or, at all events, the most numerous and most important ones, still, when these difficulties are encountered, can be completed and brought to an end.
Since, then, we have now discussed what is honourable and what is useful, it remains for us to say a little of those things which we have said are attached to these other things; namely, affection and necessity.
LVII. I think, then, that necessity means that which cannot be resisted by any power; that which cannot be softened nor altered. And that this may be made more plain, let us examine into the meaning of it by the light of examples, so as to see what its character and how great its power is. "It is necessary that anything made of wood must be capable of being burnt with fire. It is necessary that a mortal body should at some time or other die." And it is so necessary, that that power of necessity which we were just now describing requires it; which cannot by any force whatever be either resisted, or weakened, or altered. Necessities of this kind, when they occur in oratory, are properly called necessities; but if any difficult circumstances arise, then we shall consider in the previous examination whether it, the thing in question, be possible to be done. And it seems to me, that I perceive that there are some kinds of necessity which admit of additions, and some which are simple and perfect in themselves. For we say in very different senses:—"It is necessary for the people of Casilinum to surrender themselves to Hannibal;" and, "It is necessary that Casilinum should come into the power of Hannibal." In the one case, that is, in the first case, there is this addition to the proposition:—"Unless they prefer perishing by hunger." For if they prefer that, then it is not necessary for them to surrender. But in the latter proposition such an addition has no place; because whether the people of Casilinum choose to surrender, or prefer enduring hunger and perishing in that manner, still it is necessary that Casilinum must come into the power of Hannibal. What then can be effected by this division of necessity? I might almost say, a great deal, when the topic of necessity appears such as may be easily introduced. For when the necessity is a simple one, there will be no reason for our making long speeches, as we shall not be able by any means to weaken it; but when a thing is only necessary provided we wish to avoid or to obtain something, then it will be necessary to state what advantage or what honour is contained in that addition. For if you will take notice, while inquiring what this contributes to the advantage of the state, you will find that there is nothing which it is necessary to do, except for the sake of some cause which we call the adjunct. And, in like manner, you will find that there are many circumstances of necessity to which a similar addition cannot be made; of such sort are these:—"It is necessary that mortal men should die;" without any addition:—"It is not necessary for men to take food;" with this exception,—"Unless they have an objection to dying of hunger."
Therefore, as I said before, it will be always proper to take into consideration the character of that exception which is added to the original proposition. For it will at all times have this influence, that either the necessity must be explained with reference to what is honourable, in this manner:—"It is necessary, if we wish to live with honour;" or with reference to safety, in this manner:—"It is necessary, if we wish to be safe;" or with reference to convenience, in this manner:—"It is necessary, if we are desirous to live without annoyance."
LVIII. And the greatest necessity of all appears to be that which arises from what is honourable; the next to it is that which arises from considerations of safety; the third and least important is that which has ideas of convenience involved in it. But this last can never be put in comparison with the two former. But it is often indispensable to compare these together; so that although honour is more precious than safety, there is still room to deliberate which one is to consult in the greatest degree. And as to this point, it appears possible to give a settled rule which may be of lasting application. For in whatever circumstances it can happen by any possibility that while we are consulting our safety, that slight diminution of honesty which is caused by our conduct may be hereafter repaired by virtue and industry, then it seems proper to have a regard for our safety. But when that does not appear possible, then we must think of nothing but what is honourable. And so in a case of that sort when we appear to be consulting our safety, we shall be able to say with truth that we are also keeping our eyes fixed on what is honourable, since without safety we can never attain to that end. And in these circumstances it will be desirable to yield to another, or to put oneself in another's place, or to keep quiet at present and wait for another opportunity. But when we are considering convenience, it is necessary to consider this point also,—whether the cause, as far as it has reference to usefulness, appears of sufficient importance to justify us in taking anything from splendour or honour. And while speaking on this topic, that appears to me to be the main thing, that we should inquire what that is which, whether we are desirous of obtaining or avoiding it, is something necessary; that is to say, what is the character of the addition; in order that, according as the matter is found to be, so we may exert ourselves, and consider the most important circumstances as being also the most necessary.
Affection is a certain way of looking at circumstances either with reference to the time, or to the result, or management of affairs, or to the desires of men, so that they no longer appear to be such as they were considered previously, or as they are generally in the habit of being considered. "It appears a base thing to go over to the enemy; but not with the view which Ulysses had when he went over. And it is a useless act to throw money into the sea; but not with the design which Aristippus had when he did so." There are, therefore, some circumstances which may be estimated with reference to the time at which and the intention with which they are done; and not according to their own intrinsic nature. In all which cases we must consider what the times require, or what is worthy of the persons concerned; and we must not think merely what is done, but with what intention, with what companions, and at what time, it is done. And from these divisions of the subject, we think that topics ought to be taken for delivering one's opinion.
LIX. But praise and blame must be derived from those topics which can be employed with respect to persons, and which we have already discussed. But if any one wishes to consider them in a more separate manner, he may divide them into the intention, and the person of the doer, and extraneous circumstances. The virtue of the mind is that concerning the parts of which we have lately spoken; the virtues of the body are health, dignity, strength, swiftness. Extraneous circumstances are honour, money, relationship, family, friends, country, power, and other things which are understood to be of a similar kind. And in all these, that which is of universal validity ought to prevail here; and the opposites will be easily understood as to their description and character.
But in praising and blaming, it will be desirable to consider not so much the personal character of, or the extraneous circumstances affecting the person of whom one is speaking, as how he has availed himself of his advantages. For to praise his good fortune is folly, and to blame it is arrogance; but the praise of a man's natural disposition is honourable, and the blame of it is a serious thing.
Now, since the principles of argumentation in every kind of cause have been set forth, it appears that enough has been said about invention, which is the first and most important part of rhetoric. Wherefore, since one portion of my work has been brought down to its end from the former book; and since this book has already run to a great length, what remains shall be discussed in subsequent books.
[The two remaining books are lost.]
THE ORATOR OF M.T. CICERO. ADDRESSED TO MARCUS BRUTUS.
This work was composed by Cicero soon after the battle of Pharsalia, and it was intended by him to contain the plan of what he himself considered to be the most perfect style of eloquence. In his Epistles to his Friends (vi. 18.) he tells Lepta that he firmly believed that he had condensed all his knowledge of the art of oratory in what he had set forth in this book.
I. I have, O Brutus, hesitated a long time and often as to whether it was a more difficult and arduous business to refuse you, when constantly requesting the same favour, or to do what you desired me to do. For to refuse a man to whom I was attached above all men, and whom I knew also to be most entirely devoted to me, especially when he was only asking what was reasonable, and desiring what was honourable to me, appeared to me to be very harsh conduct; and to undertake a matter of such importance as was not only difficult for any man to have the ability to execute in an adequate manner, but hard even to think of in a way suited to its importance, appeared to me to be scarcely consistent with the character of a man who stood in awe of the reproof of wise and learned men. For what is there more important than, when the dissimilarity between good orators is so great, to decide which is the best sort and as it were the best form of eloquence?
However, since you repeat your entreaties, I will attempt the task, not so much from any hope that I entertain of accomplishing it, as from my willingness to attempt it. For I had rather that you should find fault with my prudence in thus complying with your eager desire, than with my friendship in refusing to attempt it.
You ask me then, and indeed you are constantly asking me, what kind of eloquence I approve of in the highest degree, and which sort of oratory I consider that to which nothing can be added, and which I therefore think the highest and most perfect kind. And in answering this question I am afraid lest, if I do what you wish, and give you an idea of the orator whom you are asking for, I may check the zeal of many, who, being discouraged by despair, will not make an attempt at what they have no hope of succeeding in. But it is good for all men to try everything, who have ever desired to attain any objects which are of importance and greatly to be desired. But if there be any one who feels that he is deficient either in natural power, or in any eminent force of natural genius, or that he is but inadequately instructed in the knowledge of important sciences, still let him hold on his course as far as he can. For if a man aims at the highest place, it is very honourable to arrive at the second or even the third rank. For in the poets there is room not only for Homer (to confine myself to the Greeks), or for Archilochus, or Sophocles, or Pindar, but there is room also for those who are second to them, or even below the second. Nor, indeed, did the nobleness of Plato in philosophical studies deter Aristotle from writing; nor did Aristotle himself, by his admirable knowledge and eloquence, extinguish the zeal in those pursuits of all other men.
II. And it is not only the case that eminent men have not been deterred by such circumstances from the highest class of studies, but even those artists have not renounced their art who have been unable to equal the beauty of the Talysus which we have seen at Rhodes, or of the Coan Venus. Nor have subsequent sculptors been so far alarmed at the statue of the Olympian Jove, or of the Shield-bearer, as to give up trying what they could accomplish, or how far they could advance; and, indeed, there has been so vast a multitude of those men, and each of them has obtained so much credit in his own particular walk, that, while we admire the most perfect models, we have also approbation to spare for those who come short of them.
But in the case of orators—I mean Greek orators—it is a marvellous thing how far one is superior to all the rest. And yet when Demosthenes flourished there were many illustrious orators, and so there were before his time, and the supply has not failed since. So that there is no reason why the hopes of those men, who have devoted themselves to the study of eloquence, should be broken, or why their industry should languish. For even the very highest pitch of excellency ought not to be despaired of; and in perfect things those things are very good which are next to the most perfect.
And I, in depicting a consummate orator, will draw a picture of such an one as perhaps never existed. For I am not asking who he was, but what that is than which nothing can be more excellent. And perhaps the perfection which I am looking for does not often shine forth, (indeed I do not know whether it ever has been seen,) but still in some degree it may at times be discoverable, among some nations more frequently, and among others more sparingly. But I lay down this position, that there is nothing of any kind so beautiful which has not something more beautiful still from which it is copied,—as a portrait is from a person's face,—though it can neither be perceived by the eyes or ears, or by any other of the senses; it is in the mind only, and by our thoughts, that we embrace it. Therefore, though we have never seen anything of any kind more beautiful than the statues of Phidias and than those pictures which I have named, still we can imagine something more beautiful. Nor did that great artist, when he was making the statue of Jupiter or of Minerva, keep in his mind any particular person of whom he was making a likeness; but there dwelt in his mind a certain perfect idea of beauty, which he looked upon, and fixed his eyes upon, and guided his art and his hand with reference to the likeness of that model.
III. As therefore there is in forms and figures something perfect and superexcellent, the appearance of which is stamped in our minds so that we imitate it, and refer to it everything which falls under our eyes; so we keep in our mind an idea of perfect eloquence, and seek for its resemblance with our ears.
Now Plato, that greatest of all authors and teachers, not only of understanding, but also of speaking, calls those forms of things ideas; and he affirms that they are not created, but that they exist from everlasting, and are kept in their places by reason and intelligence: that all other things have their rising and setting, their ebb and flow, and cannot continue long in the same condition. Whatever there is, therefore, which can become a subject of discussion as to its principle and method, is to be reduced to the ultimate form and species of its class.
And I see that this first beginning of mine is derived not from the discussions of orators, but from the very heart of philosophy, and that it is old-fashioned and somewhat obscure, and likely to incur some blame, or at all events to provoke some surprise. For men will either wonder what all this has to do with that which is the subject of our inquiry, and they will be satisfied with understanding the nature of the facts, so that it may not seem to be without reason that we have traced their origin so far back; or else they will blame us for hunting out for unaccustomed paths, and abandoning those in ordinary use.
But I am aware that I often appear to say things which are novel, when I am in reality saying what is very old, only not generally known. And I confess that I have been made an orator, (if indeed I am one at all,) or such as I am, not by the workshops of the rhetoricians, but by the walks of the Academy. For that is the school of manifold and various discourses, in which first of all there are imprinted the footsteps of Plato. But the orator is to a great extent trained and assisted by his discussions and those of other philosophers. For all that copiousness, and forest, as it were, of eloquence, is derived from those men, and yet is not sufficient for forensic business; which, as these men themselves used to say, they left to more rustic muses. Accordingly this forensic eloquence, being despised and repudiated by philosophy, has lost many great and substantial helps; but still, as it is embellished with flowery language and well-turned periods, it has had some popularity among the people, and has had no reason to fear the judgment or prejudice of a few. And so popular eloquence has been lost to learned men, and elegant learning to eloquent ones.
IV. Let this then be laid down among the first principles, (and it will be better understood presently,)—that the eloquent man whom we are looking for cannot be rendered such without philosophy. Not indeed that there is everything necessary in philosophy, but that it is of assistance to an orator as the wrestling-school is to an actor; for small things are often compared with great ones. For no one can express wide views, or speak fluently on many and various subjects, without philosophy. Since also, in the Phaedrus of Plato, Socrates says that this is what Pericles was superior to all other orators in, that he had been a pupil of Anaxagoras the natural philosopher. And it was owing to him, in his opinion, (though he had learnt also many other splendid and admirable accomplishments,) that he was so copious and imaginative, and so thoroughly aware—which is the main thing in eloquence—by what kinds of speeches the different parts of men's minds are moved.
And we may draw the same conclusion from the case of Demosthenes; from whose letters it may be gathered what a constant pupil of Plato's he was. Nor, indeed, without having studied in the schools of philosophers, can we discern the genus and species of everything; nor explain them by proper definitions; nor distribute them into their proper divisions; nor decide what is true and what is false; nor discern consequences, perceive inconsistencies, and distinguish what is doubtful. Why should I speak of the nature of things, the knowledge of which supplies such abundance of topics to oratory? or of life, and duty, and virtue, and manners? for what of all these things can be either spoken of or understood without a long study of those matters?
V. To these numerous and important things there are to be added innumerable ornaments, which at that time were only to be derived from those men who were accounted teachers of oratory. The consequence is, that no one applies himself to that genuine and perfect eloquence, because the study requisite for understanding those matters is different from that which enables me to speak of them; and because it is necessary to go to one class of teachers to understand the things, and to another to learn the proper language for them. Therefore Marcus Antonius, who in the time of our fathers was considered to be the most eminent of all men alive for eloquence, a manly nature very acute and eloquent, in that one treatise which he has left behind him, says that he has seen many fluent speakers, but not one eloquent orator, in truth, he had in his mind a model of eloquence which in his mind he saw, though he could not behold it with his eyes. But he, being a man of the most acute genius, (as indeed he was,) and feeling the want of many things both in himself and other men, saw absolutely no one who had fairly a right to be called eloquent. But if he did not think either himself or Lucius Crassus eloquent, then he certainly must have had in his mind some perfect model of eloquence; and as that had nothing wanting, he felt himself unable to include those who had anything or many things wanting in that class.
Let us then, O Brutus, if we can, investigate the nature of this man whom Antonius never beheld, or who perhaps has never even existed; and if we cannot imitate and copy him exactly, (which indeed Antonius said was scarcely possible for a god to do,) still we may perhaps be able to explain what he ought to be like.
VI. There are altogether three different kinds of speaking, in each of which there have been some eminent men; but very few (though that is what we are now looking for) who have been equally eminent in all. For some have been grandiloquent men, (if I may use such an expression,) with an abundant dignity of sentiments and majesty of language, —vehement, various, copious, authoritative; well adapted and prepared to make an impression on and effect a change in men's feelings: an effect which some have endeavoured to produce by a rough, morose, uncivilized sort of speaking, not elaborated or wrought up with any care; and others employ a smooth, carefully prepared, and well rounded off style.
On the other hand, there are men neat, acute, explaining everything, and making matters clearer, not nobler, polished up with a certain subtle and compressed style of oratory; and in the same class there are others, shrewd, but unpolished, and designedly resembling rough and unskilful speakers; and some who, with the same barrenness and simplicity, are still more elegant, that is to say, are facetious, flowery, and even slightly embellished.
But there is another class, half-way between these two, and as it were compounded of both of them, endowed neither with the acuteness of the last-mentioned orators, nor with the thunder of the former; as a sort of mixture of both, excelling in neither style; partaking of both, or rather indeed (if we would adhere to the exact truth) destitute of all the qualifications of either. Those men go on, as they say, in one uniform tenor of speaking, bringing nothing except their facility and equalness of language; or else they add something, like reliefs on a pedestal, and so they embellish their whole oration, with trifling ornaments of words and ideas.
VII. Now, whoever have by themselves arrived at any power in each of these styles of oratory, have gained a great name among orators; but we must inquire whether they have sufficiently effected what we want. For we see that there have been some men who have been ornate and dignified speakers, being at the same time shrewd and subtle arguers. And I wish that we were able to find a model of such an orator among the Latins. It would be a fine thing not to be forced to have recourse to foreign instances, but to be content with those of our own country. But though in that discourse of mine which I have published in the Brutus, I have attributed much credit to the Latins,—partly to encourage others, and partly out of affection for my own countrymen,—I still recollect that I by far prefer Demosthenes to all other men, inasmuch as he adapted his energy to that eloquence which I myself feel to be such, and not to that which I have ever had any experience of in any actual instance. He was an orator than whom there has never existed one more dignified, nor more wise, nor more temperate. And therefore it is well that we should warn those men whose ignorant conversation is getting to have some notoriety and weight, who wish either to be called Attic speakers, or who really wish to speak in the Attic style, to fix their admiration on this man above all others, than whom I do not think Athens itself more Attic. For by so doing they may learn what Attic means, and may measure eloquence by his power and not by their own weakness; for at present every one praises just that which he thinks that he himself is able to imitate. But still I think it not foreign to my present subject to remind those who are endowed with but a weak judgment, what is the peculiar merit of the Attic writers.
VIII. The prudence of the hearers has always been the regulator of the eloquence of the orators. For all men who wish to be approved of, regard the inclination of those men who are their hearers, and form and adapt themselves entirely which of the Greek rhetoricians ever drew any of his rules from Thucydides? Oh, but he is praised universally. I admit that, but it is on the ground that he is a wise, conscientious, dignified relater of facts, not that he was pleading causes before tribunals, but that he was relating wars in a history. Therefore, he was never accounted an orator; nor, indeed, should we have ever heard of his name if he had not written a history, though he was a man of eminently high character and of noble birth. But no one ever imitates the dignity of his language or of his sentiments, but when they have used some disjointed and unconnected expressions, which they might have done without any teacher at all, then they think that they are akin to Thucydides. I have met men too who were anxious to resemble Xenophon, whose style is, indeed, sweeter than honey, but as unlike as possible to the noisy style of the forum.
X Let us then return to the subject of laying a foundation for the orator whom we desire to see, and of furnishing him with that eloquence which Antonius had never found in any one. We are, O Brutus, undertaking a great and arduous task, but I think nothing difficult to a man who is in love. But I am and always have been in love with your genius, and your pursuits, and your habits. Moreover, I am every day more and more inflamed not only with regret,—though I am worn away with that while I am wishing to enjoy again our meetings and our daily association, and your learned discourse,—but also with the admirable reputation of your incredible virtues, which, though different in their kind, are united by your prudence. For what is so different or remote from severity as courtesy? And yet who has ever been considered either more conscientious or more agreeable than you? And what is so difficult as, while deciding disputes between many people, to be beloved by all of them? Yet you attain this end, of dismissing in a contented and pacified frame of mind the very parties against whom you decide. Therefore, while doing nothing from motives of interest you still contrive that all that you do should be acceptable. And therefore, of all the countries on earth, Gaul is now the only one which is not affected by the general conflagration, while you yourself enjoy your own virtues in peace, knowing that your conduct is appreciated in this bright Italy, and surrounded as you are by the flower and strength of the citizens.
And what an exploit is that, never, amid all your important occupations, to interrupt your study of philosophy! You are always either writing something yourself or inviting me to write something. Therefore, I began this work as soon as I had finished my Cato, which I should never have meddled with, being alarmed at the aspect of the times, so hostile to virtue, if I had not thought it wicked not to comply with your wishes, when you were exhorting me and awaking in me the recollection of that man who was so dear to me, and I call you to witness that I have only ventured to undertake this subject after many entreaties on your part, and many refusals on mine. For I wish that you should appear implicated in this fault, so that if I myself should appear unable to support the weight of such a subject, you may bear the blame of having imposed such a burden on me, and I only that of having undertaken it. And then the credit of having had such a commission given me by you, will make amends for the blame which the deficiency of my judgment will bring upon me.
XI. But in everything it is very difficult to explain the form (that which is called in Greek [Greek: charaktaer]) of perfection, because different things appear perfection to different people. I am delighted with Ennius, says one person, because he never departs from the ordinary use of words. I love Pacuvius, says another, all his verses are so ornamented and elaborate while Ennius is often so careless. Another is all for Attius. For there are many different opinions, as among the Greeks, nor is it easy to explain which form is the most excellent. In pictures one man is delighted with what is rough harsh looking, obscure, and dark, others care only for what is neat cheerful and brilliant. Why should you, then give any precise command or formula, when each is best in its own kind, and when there are many kinds? However, these difficulties have not repelled me from this attempt, and I have thought that in everything there is some point of absolute perfection even though it is not easily seen, and, that it can be decided on by a man who understands the matter.
But since there are many kinds of speeches, and those different, and as they do not all fall under one form, the form of panegyric, and of declamation, and of narration, and of such discourses as Isocrates has left us in his panegyric, and many other writers also who are called sophists; and the form also of other kinds which have no connexion with forensic discussion, and of the whole of that class which is called in Greek [Greek: epideiktikon], and which is made up as it were for the purpose of being looked at—for the sake of amusement, I shall omit at the present time. Not that they deserve to be entirely neglected; for they are as it were the nursery of the orator whom we wish to draw; and concerning whom we are endeavouring to say something worth hearing.
XII. From this form is derived fluency of words; from it also the combination and rhythm of sentences derives a freer licence. For great indulgence is shown to neatly turned sentences; and rhythmical, steady, compact periods are always admissible. And pains are taken purposely, not disguisedly, but openly and avowedly, to make one word answer to another, as if they had been measured together and were equal to each other. So that words opposed to one another may be frequently contrasted, and contrary words compared together, and that sentences may be terminated in the same manner, and may give the same sound at their conclusion; which, when we are dealing with actual causes, we do much more seldom, and certainly with more disguise. But, in his Panathenaic oration, Isocrates avows that he diligently kept that object in view; for he composed it not for a contest in a court of justice, but to delight the ears of his hearers.
They say that Thrasymachus of Chalcedon, and Gorgias of Leontini, were the first men who taught this science; after him Theodorus of Byzantium, and many others whom Socrates in the Phaedrus calls [Greek: logodaidaloi]; who have said many things very tolerably clever, but which seem as if they had arisen at the moment, trifling, and like animals which change their colour, and too minutely painted. And this is what makes Herodotus and Thucydides the more admirable; for though they lived at the same time with those men whom I have named, still they kept aloof as far as possible from such amusements, or I should rather say from such follies. For one of them flows on like a tranquil river, without any attempts at facetiousness; the other is borne on in a more impetuous course, and relates warlike deeds in a warlike spirit; and they are the first men by whom, as Theophrastus says, history was stirred up to dare to speak in a more fluent and adorned style than their predecessors had ventured on.
XIII. Isocrates lived in the age next to theirs; who is at all times praised by us above all other orators of his class, even though you, O Brutus, sometimes object in a jesting though not in an unlearned spirit. But you will very likely agree with me when you know why I praise him. For as Thrasymachus appeared to him to be too concise with his closely measured rhythm, and Gorgias also, though they are the first who are said to have laid down any rules at all for the harmony of sentences; and as Thucydides was somewhat too abrupt and not sufficiently round, if I may use such an expression; he was the first who adopted a system of dilating his ideas with words, and filling them up with better sounding sentences; and as by his own practice he formed those men who were afterwards accounted the most eminent men in speaking and writing, his house got to be reckoned a perfect school of eloquence. Therefore, as I, when I was praised by our friend Cato, could easily bear to be blamed by the rest; so Isocrates appears to have a right to despise the judgment of other men, while he has the testimony of Plato to pride himself on. For, as you know, Socrates is introduced in almost the last page of the Phaedrus speaking in these words:—"At present, O Phaedrus, Isocrates is quite a young man; but still I delight in telling the expectations which I have of him." "What are they?" says he. "He appears to me to be a man of too lofty a genius to be compared to Lysias and his orations: besides, he has a greater natural disposition for virtue; so that it will not be at all strange if, when he has advanced in age, he will either surpass all his contemporaries who turn their attention to eloquence, and in this kind of oratory, to the study of which he is at present devoted, as if they were only boys; or, if he is not content with such a victory, he will then feel some sort of divine inspiration prompting him to desire greater things. For there is a deep philosophy implanted by nature in this man's mind." This was the augury which Socrates forms of him while a young man. But Plato writes it of him when he has become an old man, and when he is his contemporary, and a sort of attacker of all the rhetoricians. And Isocrates is the only one whom he admires. And let those men who are not fond of Isocrates allow me to remain in error in the company of Socrates and Plato.
That then is a delightful kind of oratory, free, fluent, shrewd in its sentiments, sweet sounding in its periods, which is found in that demonstrative kind of speaking which we have mentioned. It is the peculiar style of sophists; more suitable for display than for actual contest; appropriate to schools and exhibitions; but despised in and driven from the forum. But because eloquence is first of all trained by this sort of food, and afterwards gives itself a proper colour and strength, it appeared not foreign to our subject to speak of what is as it were the cradle of an orator. However, all this belongs to the schools, and to display: let us now descend into the battle-field and to the actual struggle.
XIV. As there are three things which the orator has to consider; what he is saying; and in what place, and in what manner he is saying each separate thing; it seems on all accounts desirable to explain what is best as to each separate subject, though in rather a different manner from that in which it is usually explained in laying down the principles of the science. We will give no regular rules, (for that task we have not undertaken,) but we will present an outline and sketch of perfect eloquence; nor will we occupy ourselves in explaining by what means it is acquired, but only what sort of thing it appears to us to be.
And let us discuss the two first divisions very briefly. For it is not so much that they have not an important reference to the highest perfection, as that they are indispensable, and almost common to other studies also. For to plan and decide on what you will say are important points, and are as it were the mind in the body; still they are parts of prudence rather than of eloquence; and yet what matter is there in which prudence is not necessary? This orator, then, whom we wish to describe as a perfect one, must know all the topics suited to arguments and reasons of this class. For since whatever can possibly be the subject of any contest or controversy, gives rise to the inquiry whether it exists, and what it is, and what sort of thing it is; while we endeavour to ascertain whether it exists, by tokens; what it is, by definitions; what sort of thing it is, by divisions of right and wrong; and in order to be able to avail himself of these topics the orator,—I do not mean any ordinary one, but the excellent one whom I am endeavouring to depict,—always, if he can, diverts the controversy from any individual person or occasion. For it is in his power to argue on wider grounds concerning a genus than concerning a part; as, whatever is proved in the universal, must inevitably be proved with respect to a part. This inquiry, then, when diverted from individual persons and occasions to a discussion of a universal genus, is called a thesis. This is what Aristotle trained young men in, not after the fashion of ordinary philosophers, by subtle dissertations, but in the way of rhetoricians, making them argue on each side, in order that it might be discussed with more elegance and more copiousness; and he also gave them topics (for that is what he called them) as heads of arguments, from which every sort of oration might be applied to either side of the question.
XV. This orator of ours then (for what we are looking for is not some declaimer out of a school, or some pettifogger from the forum, but a most accomplished and perfect orator), since certain topics are given to him, will run through all of them; he will use those which are suitable to his purpose according to their class; he will learn also from what source those topics proceed which are called common. Nor will he make an imprudent use of his resources, but he will weigh everything, and make a selection. For the same arguments have not equal weight at all times, or in all causes. He will, therefore, exercise his judgment, and he will not only devise what he is to say, but he will also weigh its force. For there is nothing more fertile than genius, especially of the sort which has been cultivated by study. But as fertile and productive corn-fields bear not only corn, but weeds which are most unfriendly to corn, so sometimes from those topics there are produced arguments which are either trifling, or foreign to the subject, or useless; and the judgment of the orator has great room to exert itself in making a selection from them. Otherwise how will he be able to stop and make his stand on those arguments which are good and suited to his purpose? or how to soften what is harsh, and to conceal what cannot be denied, and, if it be possible, entirely to get rid of all such topics? or how will he be able to lead men's minds away from the objects on which they are fixed, or to adduce any other argument which, when opposed to that of his adversaries, may be more probable than that which is brought against him?
And with what diligence will he marshal the arguments with which he has provided himself? since that is the second of his three objects. He will make all the vestibule, if I may so say, and the approach to his cause brilliant; and when he has got possession of the minds of his hearers by his first onset, he will then invalidate and exclude all contrary arguments; and of his own strongest arguments some he will place in the van, some he will employ to bring up the rear, and the weaker ones he will place in the centre.
And thus we have described in a brief and summary manner what this perfect orator should be like in the two first parts of speaking. But, as has been said before, in these parts, (although they are weighty and important,) there is less skill and labour than in the others.
XVI. But when he has found out what to say, and in what place he is to say it, then comes that which is by far the most important division of the three, the consideration of the manner in which he is to say it. For that is a well-known saying which our friend Carneades used to repeat:—"That Clitomachus said the same things, but that Charmadas said the same things in the same manner." But if it is of so much consequence in philosophy even, how you say a thing, when it is the matter which is looked at there rather than the language, what can we think must be the case in causes in which the elocution is all in all? And I, O Brutus, knew from your letters that you do not ask what sort of artist I think a consummate orator ought to be, as far as devising and arranging his arguments; but you appeared to me to be asking rather what kind of eloquence I considered the best. A very difficult matter, and, indeed, by the immortal gods! the most difficult of all matters. For as language is a thing soft and tender, and so flexible that it follows wherever you turn it, so also the various natures and inclinations of men have given rise to very different kinds of speaking.
Some men love a stream of words and great volubility, placing all eloquence in rapidity of speech. Others are fond of distinct and broadly marked intervals, and delays, and taking of breath. What can be more different? Yet in each kind there is something excellent. Some labour to attain a gentle and equable style, and a pure and transparent kind of eloquence; others aim at a certain harshness and severity in their language, a sort of melancholy in their speech: and as we have just before divided men, so that some wish to appear weighty, some light, some moderate, so there are as many different kinds of orators as we have already said that there are styles of oratory.
XVII. And since I have now begun to perform this duty in a more ample manner than you did require it of me, (for though the question which you put to me has reference only to the kind of oration, I have also in my answer given you a brief account of the invention and arrangement of arguments,) even now I will not speak solely of the manner of making a speech, but I will touch also on the manner of conducting an action. And so no part whatever will be omitted: since nothing need be said in this place of memory, for that is common to many arts.
But the way in which it is said depends on two things,—on action and on elocution. For action is a sort of eloquence of the body, consisting as it does of voice and motion. Now there are as many changes of voice as there are of minds, which are above all things influenced by the voice. Therefore, that perfect orator which our oration has just been describing, will employ a certain tone of voice regulated by the way in which he wishes to appear affected himself, and by the manner also in which he desires the mind of his hearer to be influenced. And concerning this I would say more if this was the proper time for laying down rules concerning it, or if this was what you were inquiring about. I would speak also of gesture, with which expression of countenance is combined. And it is hardly possible to express of what importance these things are, and what use the orator makes of them. For even people without speaking, by the mere dignity of their action, have often produced all the effect of eloquence; and many really eloquent men, by their ungainly delivery have been thought ineloquent. So that it was not without reason that Demosthenes attributed the first, and second, and third rank to action. For if eloquence without action is nothing, but action without eloquence is of such great power, then certainly it is the most important part of speaking.
XVIII. He, then, who aims at the highest rank in eloquence, will endeavour with his voice on the stretch to speak energetically; with a low voice, gently, with a sustained voice, gravely, and with a modulated voice, in a manner calculated to excite compassion.
For the nature of the voice is something marvellous, for all its great power is derived from three sounds only, the grave sound, the sharp sound, and the moderate sound, and from these comes all that sweet variety which is brought to perfection in songs. But there is also in speaking a sort of concealed singing, not like the peroration of rhetoricians from Phrygia or Caria, which is nearly a chant, but that sort which Demosthenes and Aeschines mean when the one reproaches the other with the affected modulation of his voice. Demosthenes says even more, and often declares that Aeschines had a very sweet and clear voice. And in this that point appears to me worth noting, with reference to the study of aiming at sweetness in the voice. For nature of herself, as if she were modulating the voices of men, has placed in every one one acute tone, and not more than one, and that not more than two syllables back from the last, so that industry may be guided by nature when pursuing the object of delighting the ears. A good voice also is a thing to be desired, for it is not naturally implanted in us, but practice and use give it to us. Therefore, the consummate orator will vary and change his voice, and sometimes straining it, sometimes lowering it, he will go through every degree of tone.
And he will use action in such a way that there shall be nothing superfluous in his gestures. His attitude will be erect and lofty, the motion of the feet rare, and very moderate, he will only move across the tribune in a very moderate manner, and even then rarely, there will be no bending of the neck, no clenching of the fingers, no rise or fall of the fingers in regular time, he will rather sway his whole body gently, and employ a manly inclination of his side, throwing out his arm in the energetic parts of his speech, and drawing it back in the moderate ones. As to his countenance, which is of the greatest influence possible next to the voice, what dignity and what beauty will be derived from its expression! And when you have accomplished this, then the eyes too must be kept under strict command, that there may not appear to be anything unsuitable, or like grimace. For as the countenance is the image of the mind, so are the eyes the informers as to what is going on within it. And their hilarity or sadness will be regulated by the circumstances which are under discussion.