If it cannot be shown that the person on his trial has been ever before implicated in any previous guilt, then that topic will come into play which we are to use for the purpose of encouraging the judges to think that the former character of the man has no bearing on the present question; for that he has formerly concealed his wickedness, but that he is now manifestly convicted; so that it is not proper that this case should be looked at with reference to his former life, but that his former life should now be reproved by this conduct of his, and that formerly he had either no opportunity of doing wrong, or no motive to do so. Or if this cannot be said, then we must have recourse to this last assertion,—that it is no wonder if he now does wrong for the first time, for that it is necessary that a man who wishes to commit sin, must some time or other commit it for the first time. If nothing whatever is known of his previous life, then it is best to pass over this topic, and to state the reason why it is passed over, and then to proceed at once to corroborate the accusation by arguments.
XI. But the advocate for the defence ought in the first place to show, if he can, that the life of the person who is accused has always been as honourable as possible. And he will do this best by recounting any well known services which he has rendered to the state in general, or any that he has done to his parents, or relations, or friends, or kinsmen, or associates, or even any which are more remarkable or more unusual, especially if they have been done with any extraordinary labour, or danger, or both, or when there was no absolute necessity, purely because it was his duty, or if he has done any great benefit to the republic, or to his parents, or to any other of the people whom I have just mentioned, and if, too, he can show that he has never been so influenced by any covetousness as to abandon his duty, or to commit any error of any description. And this statement will be the more confirmed, if when it is said that he had an opportunity of doing something which was not quite creditable with impunity, it can be shown at the same time that he had no inclination to do it.
But this very kind of argument will be all the stronger if the person on his trial can be shown to have been unimpeachable previously in that particular sort of conduct of which he is now accused, as, for instance, if he be accused of having done so and so for the sake of avarice, and can be proved to have been all his life utterly indifferent to the acquisition of money. On this indignation may be expressed with great weight, united with a complaint that it is a most miserable thing, and it may be argued that it is a most scandalous thing, to think that that was the man's motive, when his disposition during the whole of his life has been as unlike it as possible. Such a motive often harries audacious men into guilt, but it has no power to impel an upright man to sin. It is unjust, moreover, and injurious to every virtuous man, that a previously well-spent life should not be of the greatest possible advantage to a man at such a time, but that a decision should be come to with reference only to a sudden accusation which can be got up in a hurry, and with no reference to a man's previous course of life, which cannot be extemporised to suit an occasion, and which cannot be altered by any means.
But if there have been any acts of baseness in his previous life, or if they be said to have undeservedly acquired such a reputation, or if his actions are to be attributed by the envy, or love of detraction, or mistaken opinion of some people, either to ignorance, or necessity, or to the persuasion of young men, or to any other affection of mind in which there is no vice, or if he has been tainted with errors of a different kind, so that his disposition appears not entirely faultless, but still far remote from such a fault, and if his disgraceful or infamous course of life cannot possibly be mitigated by any speech,—then it will be proper to say that the inquiry does not concern his life and habits, but is about that crime for which he is now prosecuted, so that, omitting all former actions, it is proper that the matter which is in hand should be attended to.
XII. But suspicions may be derived from the fact itself, if the administration of the whole matter is examined into in all its parts; and these suspicions will arise partly from the affair itself when viewed separately, and partly from the persons and the affairs taken together. They will be able to be derived from the affair, if we diligently consider those circumstances which have been attributed to such affairs. And from them all the different genera, and most subordinate species, will appear to be collected together in this statement of the case.
It will therefore be desirable to consider in the first place what circumstances there are which are united to the affair itself,—that is to say, which cannot be separated from it, and with reference to this topic it will be sufficient to consider what was done before the affair in question took place from which a hope arose of accomplishing it, and an opportunity was sought of doing it, what happened with respect to the affair itself, and what ensued afterwards. In the next place, the execution of the whole affair must be dealt with for this class of circumstances which have been attributed to the affair has been discussed in the second topic.
So with reference to this class of circumstances we must have a regard to time, place, occasion, and opportunity, the force of each particular of which has been already carefully explained when we were laying down precepts for the confirmation of an argument. Wherefore, that we may not appear to have given no rules respecting these things, and that we may not, on the other hand, appear to have repeated the same things twice over, we will briefly point out what it is proper should be considered in each part. In reference to place, then, opportunity is to be considered; and in reference to time, remoteness; and in reference to occasion, the convenience suitable for doing anything; and with reference to facility, the store and abundance of those things by means of which anything is done more easily, or without which it cannot be done at all.
In the next place we must consider what is added to the affair, that is to say, what is greater, what is less, what is equally great, what is similar. And from these topics some conjecture is derived, if proper consideration is given to the question how affairs of greater importance, or of less, or of equal magnitude, or of similar character, are usually transacted. And in this class of subjects the result also ought to be examined into; that is to say, what usually ensues as the consequence of every action must be carefully considered; as, for instance, fear, joy, trepidation.
But the fourth part was a necessary consequence from those circumstances which we said were attendant on affairs. In it those things are examined which follow the accomplishment of an affair, either immediately or after an interval. And in this examination we shall see whether there is any custom, any action, any system, or practice, or habit, any general approval or disapproval on the part of mankind in general, from which circumstance some suspicion at times arises.
XIII. But there are some suspicions which are derived from the circumstances which are attributed to persons and things taken together. For many circumstances arising from fortune, and from nature, and from the way of a man's life, and from his pursuits and actions, and from chance, or from speeches, or from a person's designs, or from his usual habit of mind or body, have reference to the same things which render a statement credible or incredible, and which are combined with a suspicion of the fact.
For it is above all things desirable that inquiry should be made in this way, of stating the case first of all, whether anything could be done; in the next place, whether it could have been done by any one else; then we consider the opportunity, on which we have spoken before; then whether what has been done is a crime which one is bound to repent of; we must inquire too whether he had any hope of concealing it; then whether there was any necessity for his doing so; and as to this we must inquire both whether it was necessary that the thing should be done at all, or that it should be done in that manner. And some portion of these considerations refer to the design, which has been already spoken of as what is attributed to persons; as in the instance of that cause which we have mentioned. These circumstances will be spoken of as before the affair,—the facts, I mean, of his having joined himself to him so intimately on the march, of his having sought occasion to speak with him, of his having lodged with him, and supped with him. These circumstances were a part of the affair,—night, and sleep. These came after the affair,—the fact of his having departed by himself; of his having left his intimate companion with such indifference; of his having a bloody sword.
Part of these things refer to the design. For the question is asked, whether the plan of executing this deed appears to have been one carefully devised and considered, or whether it was adopted so hastily that it is not likely that any one should have gone on to crime so rashly. And in this inquiry we ask also whether the deed could have been done with equal ease in any other manner; or whether it could have happened by chance. For very often if there has been a want of money, or means, or assistants, there would not appear to have been any opportunity of doing such a deed. If we take careful notice in this way, we shall see that all these circumstances which are attributed to things, and those too which are attributed to persons, fit one another. In this case it is neither easy nor necessary, as it is in the former divisions, to draw distinctions as to how the accuser and how the advocate for the defence ought to handle each topic. It is not necessary, because, when the case is once stated, the circumstances themselves will teach those men, who do not expect to find everything imaginable in this treatise, what is suitable for each case; and they will apply a reasonable degree of understanding to the rules which are here laid down, in the way of comparing them with the systems of others. And it is not easy, because it would be an endless business to enter into a separate explanation with respect to every portion of every case; and besides, these circumstances are adapted to each part of the case in different manners on different occasions.
XIV. Wherefore it will be desirable to consider what we have now set forth. And our mind will approach invention with more ease, if it often and carefully goes over both its own relation and that of the opposite party, of what has been done; and if, eliciting what suspicions each part gives rise to, it considers why, and with what intention, and with what hopes and plans, each thing was done. Why it was done in this manner rather than in that; why by this man rather than by that; why it was done without any assistant, or why with this one; why no one was privy to it, or why somebody was, or why this particular person was; why this was done before; why this was not done before; why it was done in this particular instance; why it was done afterwards; what was done designedly, or what came as a consequence of the original action; whether the speech is consistent with the facts or with itself; whether this is a token of this thing, or of that thing, or of both this and that, and which it is a token of most; what has been done which ought not to have been done, or what has not been done which ought to have been done.
When the mind considers every portion of the whole business with this intention, then the topics which have been reserved, will come into use, which we have already spoken of; and certain arguments will be derived from them both separately and unitedly. Part of which arguments will depend on what is probable, part on what is necessary; there will be added also to conjecture questions, testimony, reports. All of which things each party ought to endeavour by a similar use of these rules to turn to the advantage of his own cause. For it will be desirable to suggest suspicions from questions, from evidence, and from some report or other, in the same manner as they have been derived from the cause, or the person, or the action.
Wherefore those men appear to us to be mistaken who think that this kind of suspicion does not need any regular system, and so do those who think that it is better to give rules in a different manner about the whole method of conjectural argument. For all conjecture must be derived from the same topics; for both the cause of every rumour and the truth of it will be found to arise from the things attributed to him who in his inquiry has made any particular statement, and to him who has done so in his evidence. But in every cause a part of the arguments is joined to that cause alone which is expressed, and it is derived from it in such a manner that it cannot be very conveniently transferred from it to all other causes of the same kind; but part of it is more rambling, and adapted either to all causes of the same kind, or at all events to most of them.
XV. These arguments then which can be transferred to many causes, we call common topics. For a common topic either contains some amplification of a well understood thing,—as if any one were desirous to show that a man who has murdered his father is worthy of the very extremity of punishment; and this topic is not to be used except when the cause has been proved and is being summed up;—or of a doubtful matter which has some probable arguments which can be produced on the other side of the question also; as a man may say that it is right to put confidence in suspicions, and, on the contrary, that it is not right to put confidence in suspicions. And a portion of the common topics is employed in indignation or in complaint, concerning which we have spoken already. A part is used in urging any probable reason on either side.
But an oration is chiefly distinguished and made plain by a sparing introduction of common topics, and by giving the hearers actual information by some topics, and by confirming previously used arguments in the same way. For it is allowable to say something common when any topic peculiar to the cause is introduced with care; and when the mind of the hearer is refreshed so as to be inclined to attend to what follows, or is reawakened by everything which has been already said. For all the embellishments of elocution, in which there is a great deal both of sweetness and gravity, and all things, too, which have any dignity in the invention of words or sentences, are bestowed upon common topics.
Wherefore there are not as many common topics for orators as there are for lawyers. For they cannot be handled with elegance and weight, as their nature requires, except by those who have acquired a great flow of words and ideas by constant practice. And this is enough for us to say in a general way concerning the entire class of common topics.
XVI. Now we will proceed to explain what common topics are usually available in a conjectural statement of a case. As for instance—that it is proper to place confidence in suspicions, or that it is not proper, that it is proper to believe witnesses, or that it is not proper, that it is proper to believe examinations, or that it is not proper, that it is proper to pay attention to the previous course of a man's life, or that it is not proper, that it is quite natural that a man who has done so and so should have committed this crime also, or that it is not natural, that it is especially necessary to consider the motive, or that it is not necessary. And all these common topics, and any others which arise out of any argument peculiar to the cause in hand, may be turned either way.
But there is one certain topic for an accuser by which he exaggerates the atrocity of an action, and there is another by which he says that it is not necessary to pity the miserable. That, too, is a topic for an advocate for the defence by which the false accusations of the accusers are shown up with indignation, and that by which pity is endeavoured to be excited by complaints. These and all other common topics are derived from the same rules from which the other systems of arguments proceed, but those are handled in a more delicate, and acute, and subtle manner, and these with more gravity, and more embellishment, and with carefully selected words and ideas. For in them the object is, that that which is stated may appear to be true. In these, although it is desirable to preserve the appearance of truth, still the main object is to give importance to the statement. Now let us pass on to another statement of the case.
XVII. When there is a dispute as to the name of a thing because the meaning of a name is to be defined by words, it is called a definitive statement. By way of giving an example of this, the following case may be adduced. Caius Flaminius, who as consul met with great disasters in the second Punic war, when he was tribune of the people, proposed, in a very seditious manner, an agrarian law to the people, against the consent of the senate, and altogether against the will of all the nobles. While he was holding an assembly of the people, his own father dragged him from the temple. He is impeached of treason. The charge is—"You attacked the majesty of the people in dragging down a tribune of the people from the temple." The denial is—"I did not attack the majesty of the people." The question is—"Whether he attacked the majesty of the people or not?" The argument is—"I only used the power which I legitimately had over my own son." The denial of this argument is—"But a man who, by the power belonging to him as a father, that is to say, as a private individual, attacks the power of a tribune of the people, that is to say, the power of the people itself, attacks the majesty of the people." The question for the judges is—"Whether a man attacks the majesty of the people who uses his power as a father in opposition to the power of a tribune?" And all the arguments must be brought to bear on this question.
And, that no one may suppose by any chance that we are not aware that some other statement of the case may perhaps be applicable to this cause, we are taking that portion only for which we are going to give rules. But when all parts have been explained in this book, any one, if he will only attend diligently, will see every sort of statement in every sort of cause, and all their parts, and all the discussions which are incidental to them. For we shall mention them all.
The first topic then for an accuser is a short and plain definition, and one in accordance with the general opinion of men, of that name, the meaning of which is the subject of inquiry. In this manner—"To attack the majesty of the people is to detract from the dignity, or the rank, or the power of the people, or of those men to whom the people has given power." This definition being thus briefly set forth in words, must be confirmed by many assertions and reasons and must be shown to be such as you have described it. Afterwards it will be desirable to add to the definition which you have given, the action of the man who is accused, and to add it too with reference to the character which you have proved it to have. Take for instance—"to attack the majesty of the people." You must show that the adversary does attack the majesty of the people, and you must confirm this whole topic by a common topic, by which the atrocity or indignity of the fact, and the whole guilt of it, and also our indignation at it, may be increased.
After that it will be desirable to invalidate the definition of the adversaries, but that will be invalidated if it be proved to be false. This proof must be deduced from the belief of men concerning it, when we consider in what manner and under what circumstances men are accustomed to use that expression in their ordinary writing or talking. It will also be invalidated if the proof of that description be shown to be discreditable or useless, and if it be shown what disadvantages will ensue if that position be once admitted. And it will be derived from the divisions of honour and usefulness, concerning which we will give rules when we lay down a system of deliberations. And if we compare the definition given by our adversaries with our own definition, and prove our own to be true, and honourable, and useful, and theirs to be entirely different. But we shall seek out things like them in an affair of either greater, or less, or equal importance, from which our description will be proved.
XVIII Now, if there be more matters to be defined,—as for instance, if we inquire whether he is a thief or a sacrilegious person who has stolen sacred vessels from a private house,—we shall have to employ many definitions, and then the whole cause will have to be dealt with on a similar principle. But it is a common topic to dwell on the wickedness of that man who endeavours to wrest to his own purposes not only the effect of things, but also the meaning of words, in order both to do as he pleases, and to call what he does by whatever name he likes.
Then the first topic to be used by an advocate for the defence, is also a brief and plain definition of a name, adopted in accordance with the opinion of men. In this way—To diminish the majesty of the people is to usurp some of the public powers when you are not invested with any office. And then the confirmation of this definition is derived from similar instances and similar principles. Afterwards comes the separation of one's own action from that definition. Then comes the common topic by which the expediency or honesty of the action is increased.
Then comes the reprehension of the definition of the opposite party, which is also derived from all the same topics as those which we have prescribed to the accuser. And afterwards other arguments will be adduced besides the common topic. But that will be a common topic for the advocate of the defence to use, by which he will express indignation that the accuser not only alters facts in order to bring him into danger, but that he attempts also to alter words. For those common topics which are assumed either for the purpose of demonstrating the falsehood of the accusations of the prosecutor, or for exciting pity, or for expressing indignation at an action, or for the purpose of deterring people from showing pity, are derived from the magnitude of the danger, not from the nature of the cause. Wherefore they are incidental not to every cause, but to every description of cause. We have made mention of them in speaking of the conjectural statement of a case, but we shall use induction when the cause requires.
XIX But when the pleading appears to require some translation, or to need any alteration, either because he is not pleading who ought to do so, or he is not pleading with the man he ought, or before the men whom he ought to have for hearers, or in accordance with the proper law, or under liability to the proper punishment, or in reference to the proper accusation, or at the proper time, it is then called a transferable statement of the case. We should require many examples of this if we were to inquire into every sort of translation, but because the principle on which the rules proceed is similar, we have no need of a superfluity of instances. And in our usual practice it happens from many causes that such translations occur but seldom. For many actions are prevented by the exceptions allowed by the praetors, and we have the civil law established in such a way that that man is sure to lose his cause who does not conduct it as he ought. So that those actions greatly depend on the state of the law. For there the exceptions are demanded, and an opportunity is allowed of conducting the cause in some manner, and every formula of private actions is arranged. But in actual trials they occur less frequently, and yet, if they ever do occur at all, they are such that by themselves they have less strength, but they are confirmed by the assumption of some other statement in addition to them. As in a certain trial which took place "When a certain person had been prosecuted for poisoning, and, because he was also accused of parricide, the trial was ordered to proceed out of its regular order, when in the accusation some charges were corroborated by witnesses and arguments, but the parricide was barely mentioned, it was proper for the advocate for the defence to dwell much and long on this circumstance, as, nothing whatever was proved respecting the death of the accused person's parent, and therefore that it was a scandalous thing to inflict that punishment on him which is inflicted on parricides, but that that must inevitably be the case if he were convicted, since that it is added as one of the counts of the indictment, and since it is on that account that the trial has been ordered to be taken out of its regular order. Therefore if it is not right that that punishment should be inflicted on the criminal, it is also not right that he should be convicted, since that punishment must inevitably follow a conviction." Here the advocate for the defence, by bringing the commutation of the punishment into his speech, according to the transferable class of topics, will invalidate the whole accusation. But he will also confirm the alteration by a conjectural statement of the case when employed in defending his client on the other charges.
XX But we may give an example of translation in a cause, in this way—When certain armed men had come for the purpose of committing violence, and armed men were also prepared on the other side, and when one of the armed men with his sword cut off the hand of a certain Roman knight who resisted his violence, the man whose hand had been cut off brings an action for the injury. The man against whom the action is brought pleads a demurrer before the praetor, without there being any prejudice to a man on trial for his life. The man who brings the action demands a trial on the simple fact, the man against whom the action is brought says that a demurrer ought to be added. The question is—"Shall the demurrer be allowed or not?" The reason is—"No, for it is not desirable in an action for damages that there should be any prejudged decision of a crime, such as is the subject of inquiry when assassins are on their trial." The arguments intended to invalidate this reason are—"The injuries are such that it is a shame that a decision should not be come to as early as possible." The thing to be decided is—"Whether the atrocity of the injuries is a sufficient reason why, while that point is before the tribunal, a previous decision should be given concerning some greater crime, concerning which a tribunal is prepared." And this is the example. But in every cause the question ought to be put to both parties, by whom, and by whose agency, and how, and when it is desirable that the action should be brought, or the decision given; or what ought to be decided concerning that matter.
That ought to be assumed from the divisions of the law, concerning which we must speak hereafter; and we then ought to argue as to what is usually done in similar cases, and to consider whether, in this instance, out of wickedness, one course is really adopted and another pretended; or whether the tribunal has been appointed and the action allowed to proceed through folly or necessity, because it could not be done in any other manner, or owing to an opportunity which offered for acting in such a manner; or whether it has been done rightly without any interruption of any sort. But it is a common topic to urge against the man who seeks to avail himself of a demurrer to an action, that he is fleeing from a decision and from punishment, because he has no confidence in the justice of his cause. And that, owing to the demurrer, everything will be in confusion, if matters are not conducted and brought into court as they ought to be; that is to say, if it is either pleaded against a man it ought not, or with an improper penalty, or with an improper charge, or at an improper time; and this principle applies to any confusion of every sort of tribunal. Those three statements of cases then, which are not susceptible of any decisions, must be treated in this manner. At present let us consider the question and its divisions on general principles.
XXI. When the fact and the name of the action in question is agreed upon, and when there is no dispute as to the character of the action to be commenced; then the effect, and the nature, and the character of the business is inquired into. We have already said, that there appear to be two divisions of this; one which relates to facts and one which relates to law. It is like this: "A certain person made a minor his heir, but the minor died before he had come into the property which was under the care of guardians. A dispute has arisen concerning the inheritance which came to the minor, between those who are the reversionary heirs of the father of the minor,—the possession belongs to the reversionary heirs." The first statement is that of the next of kin—"That money, concerning which he, whose next of kin we are, said nothing in his will, belongs to us." The reply is—"No, it belongs to us who are the reversionary heirs according to the will of his father." The thing to be inquired into is—To whom does it rightfully belong? The argument is—"For the father made a will for himself and for his son as long as the latter was a minor, wherefore it is quite clear that the things which belonged to the son are now ours, according to the will of the father." The argument to upset this is—"Aye, the father made his own will, and appointed you as reversionary heir, not to his son, but himself. Wherefore, nothing except what belonged to him himself can be yours by his will." The point to be determined is, whether any one can make a will to affect the property of his son who is a minor, or, whether the reversionary heirs of the father of the family himself, are not the heirs of his son also as long as he is a minor. And it is not foreign to the subject, (in order that I may not, on the one hand, omit to mention it, or, on the other, keep continually repeating it,) to mention a thing here which has a bearing on many questions. There are causes which have many reasons, though the grounds of the cause are simple, and that is the case when what has been done, or what is being defended, may appear right or natural on many different accounts, as in this very cause. For this further reason may be suggested by the heirs—"For there cannot be more heirs than one of one property, for causes quite dissimilar, nor has it ever happened, that one man was heir by will, and another by law, of the same property." This, again, is what will be replied, in order to invalidate this—"It is not one property only; because one part of it was the adventitious property of the minor, whose heir no one had been appointed by will at that time, in the case of anything happening to the minor, and with respect to the other portion of the property, the inclination of the father, even after he was dead, had the greatest weight, and that, now that the minor is dead, gives the property to his own heirs."
The question to be decided is, "Whether it was one property?" And then, if they employ this argument by way of invalidating the other, "That there can be many heirs of one property for quite dissimilar causes," the question to be decided arises out of that argument, namely "Whether there can be more heirs than one, of different classes and character, to one property?"
XXII Therefore, in one statement of the case, it has been understood how there are more reasons than one, more topics than one to invalidate such reasons, and besides that, more questions than one for the decision of the judge. Now let us look to the rules for this class of question. We must consider in what the rights of each party, or of all the parties (if there are many parties to the suit), consist. The beginning, then, appears derived from nature; but some things seem to have become adopted in practice for some consideration of expediency which is either more or less evident to us. But afterwards things which were approved of, or which seemed useful, either through habit, or because of their truth, appeared to have been confirmed by laws, and some things seem to be a law of nature, which it is not any vague opinion, but a sort of innate instinct that implants in us, as religion, piety, revenge for injuries, gratitude, attention to superiors, and truth. They call religion, that which is conversant with the fear of, and ceremonious observance paid to the gods; they call that piety, which warns us to fulfil our duties towards our country, our parents, or others connected with us by ties of blood, gratitude is that which retains a recollection of honours and benefits conferred on one, and acts of friendship done to one, and which shows itself by a requital of good offices, revenge for injuries is that by which we repel violence and insult from ourselves and from those who ought to be dear to us, by defending or avenging ourselves, and by means of which we punish offences, attention to superiors, they call the feeling under the influence of which we feel reverence for and pay respect to those who excel us in wisdom or honour or in any dignity, truth, they style that habit by which we take care that nothing has been or shall be done in any other manner than what we state. And the laws of nature themselves are less inquired into in a controversy of this sort, because they have no particular connexion with the civil law of which we are speaking and also, because they are somewhat remote from ordinary understandings. Still it is often desirable to introduce them for the purpose of some comparison, or with a view to add dignity to the discussion.
But the laws of habit are considered to be those which without any written law, antiquity has sanctioned by the common consent of all men. And with reference to this habit there are some laws which are now quite fixed by their antiquity. Of which sort there are many other laws also, and among them far the greatest part of those laws which the praetors are in the habit of including in their edicts. But some kinds of law have already been established by certain custom, such as those relating to covenants, equity, formal decisions. A covenant is that which is agreed upon between two parties, because it is considered to be so just that it is said to be enforced by justice, equity is that which is equal to all men, a formal decision is that by which something has been established by the declared opinion of some person or persons authorized to pronounce one. As for regular laws, they can only be ascertained from the laws. It is desirable, then, by trying over every part of the law, to take notice of and to extract from these portions of the law whatever shall appear to arise out of the case itself, or out of a similar one, or out of one of greater or less importance. But since, as has been already said, there are two kinds of common topics, one of which contains the amplification of a doubtful matter, and the other of a certain one, we must consider what the case itself suggests, and what can be and ought to be amplified by a common topic. For certain topics to suit every possible case cannot be laid down, and perhaps in most of them it will be necessary at times to rely on the authority of the lawyers, and at times to speak against it. But we must consider, in this case and in all cases, whether the case itself suggests any common topics besides those which we have mentioned.
Now let us consider the juridical kind of inquiry and its different divisions. XXIII The juridical inquiry is that in which the nature of justice and injustice, and the principle of reward or punishment, is examined. Its divisions are two, one of which we call the absolute inquiry, and the other the one which is accessory. That is the absolute inquiry which itself contains in itself the question of right and not right, not as the inquiry about facts does, in an overhand and obscure manner, but openly and intelligibly. It is of this sort.—When the Thebans had defeated the Lacedaemonians in war, as it was nearly universal custom among the Greeks, when they were waging war against one another, for those who were victorious to erect some trophy on their borders, for the sake only of declaring their victory at present, not that it might remain for ever as a memorial of the war, they erected a brazen trophy. They are accused before the Amphictyons, that is, before the common council of Greece. The charge is, "They ought not to have done so." The denial is, "We ought." The question is, "Whether they ought." The reason is, "For we gained such glory by our valour in that war, that we wished to leave an everlasting memorial of it to posterity." The argument adduced to invalidate this is, "But still it is not right for Greeks to erect an eternal memorial of then enmity to Greeks." The question to be decided is, "As for the sake of celebrating their own excessive valour Greeks have erected an imperishable monument of their enmity to Greeks, whether they have done well or ill?" We, therefore, have now put this reason in the mouth of the Thebans, in order that this class of cause which we are now considering might be thoroughly understood. For if we had furnished them with that argument which is perhaps the one which they actually used, "We did so because our enemies warred against us without any considerations of justice and piety," we should then be digressing to the subject of retorting an accusation, of which we will speak hereafter. But it is manifest that both kinds of question are incidental to this controversy. And arguments must be derived for it from the same topics as those which are applicable to the cause depending on matters of fact, which has been all ready treated of. But to take many weighty common topics both from the cause itself, if there is any opportunity for employing the language of indignation or complaint, and also from the advantage and general character of the law, will be not only allowable, but proper, if the dignity of the cause appears to require such expedients.
XXIV. At present let us consider the assumptive portion of the juridical inquiry. But it is then called assumptive, when the fact cannot be proved by its own intrinsic evidence, but is defended by some argument brought from extraneous circumstances. Its divisions are four in number: comparison, the retort of the accusation, the refutation of it as far as regards oneself, and concession.
Comparison is when any action which intrinsically cannot be approved, is defended by reference to that for the sake of which it was done. It is something of this sort:—"A certain general, when he was blockaded by the enemy and could not escape by any possible means, made a covenant with them to leave behind his arms and his baggage, on condition of being allowed to lead away his soldiers in safety. And he did so. Having lost his arms and his baggage, he saved his men, beyond the hopes of any one. He is prosecuted for treason." Then comes the definition of treason. But let us consider the topic which we are at present discussing.
The charge is, "He had no business to leave behind the arms and baggage." The denial is, "Yes, he had." The question is, "Whether he had any right to do so?" The reason for doing so is, "For else he would have lost all his soldiers." The argument brought to invalidate this is either the conjectural one, "They would not have been lost," or the other conjectural one, "That was not your reason for doing so." And from this arise the questions for decision: "Whether they would have been lost?" and, "Whether that was the reason why he did so?" Or else, this comparative reason which we want at this minute: "But it was better to lose his soldiers than to surrender the arms and baggage to the enemy." And from this arises the question for the decision of the judges: "As all the soldiers must have been lost unless they had come into this covenant, whether it was better to lose the soldiers, or to agree to these conditions?"
It will be proper to deal with this kind of cause by reference to these topics, and to employ the principles of, and rules for the other statements of cases also. And especially to employ conjectures for the purpose of invalidating that which those who are accused will compare with the act which is alleged against them as a crime. And that will be done if either that result which the advocates for the defence say would have happened unless that action had been performed which is now brought before the court, be denied to have been likely to ensue; or if it can be proved that it was done with a different object and in a different manner from that stated by the man who is on his trial. The confirmation of that statement, and also the argument used by the opposite party to invalidate it, must both be derived from the conjectural statement of the case. But if the accused person is brought before the court, because of his action coming under the name of some particular crime, (as is the case in this instance, for the man is prosecuted for treason), it will be desirable to employ a definition and the rules for a definition.
XXV. And this usually takes place in this kind of examination, so that it is desirable to employ both conjecture and definition. But if any other kind of inquiry arises, it will be allowable on similar principles to transfer to it the rules for that kind of inquiry. For the accuser must of all things take pains to invalidate, by as many reasons as possible, the very fact on account of which the person on his trial thinks that it is granted to him that he was right. And it is easy to do so, if he attempts to overturn that argument by as many statements of the case as he can employ.
But comparison itself, when separated from the other kinds of discussion, will be considered according to its own intrinsic power, if that which is mentioned in the comparison is shown, either not to have been honourable, or not to have been useful, or not to have been necessary, or not so greatly useful, or not so very honourable, or not so exceedingly necessary.
In the next place it is desirable for the accuser to separate the action which he himself is accusing, from that which the advocate for the defence compares with it. And he will do that if he shows that it is not usually done in such a manner, and that it ought not to be done so, and that there is no reason why this thing should be done on this account; for instance, that those things which have been provided for the sake of safety, should be surrendered to the enemy for the sake of safety. Afterwards it will be desirable to compare the injury with the benefit, and altogether to compare the action which is impeached with that which is praised by the advocate for the defence or which is attempted to be proved as what must inevitably have ensued, and then, by disparaging the one at the same time to exaggerate the importance of the mischief caused by the other. That will be effected if it be shown that that which the person on his trial avoided was more honourable, more advantageous, and more necessary than that which he did. But the influence and character of what is honourable, and useful, and necessary, will be ascertained in the rules given for deliberation.
In the next place, it will be desirable to explain that comparative kind of judicial decision as if it were a deliberative cause and then afterwards to discuss it by the light thrown on it by rules for deliberation. For let this be the question for judicial decision which we have already mentioned—"As all the soldiers would have been lost if they had not come to this agreement, was it better for the soldiers to be lost, or to come to this agreement?" It will be desirable that this should be dealt with with reference to the topics concerning deliberation, as if the matter were to come to some consultation.
XXVI. But the advocate for the defence will take the topics in accordance with which other statements of the case are made by the accuser, and will prepare his own defence from those topics with reference to the same statements. But all other topics which belong to the comparison, he will deal with in the contrary manner.
The common topics will be these,—the accuser will press his charges against the man who confesses some discreditable or pernicious action, or both, but still seeks to make some defence, and will allege the mischievous or discreditable nature of his conduct with great indignation. The advocate for the defence will insist upon it, that no action ought to be considered pernicious or discreditable, or, on the other hand, advantageous or creditable, unless it is ascertained with what intention, at what time, and on what account it was done. And this topic is so common, that if it is well handled in this cause it is likely to be of great weight in convincing the hearers. And there is another topic, by means of which the magnitude of the service done is demonstrated with very great amplification, by reference to the usefulness, or honourableness, or necessity of the action. And there is a third topic, by means of which the matter which is expressed in words is placed before the eyes of those men who are the hearers, so that they think that they themselves also would have done the same things, if the same circumstances and the same cause for doing so had happened to them at the same time.
The retorting of a charge takes place, when the accused person, having confessed that of which he is accused, says that he did it justifiably, being induced by the sin committed against him by the other party. As in this case—"Horatius, when he had slain the three Curiatii and lost his two brothers, returned home victorious. He saw his sister not troubled about the death of her brothers, but at the same time calling on the name of Curiatius, who had been betrothed to her, with groans and lamentation. Being indignant, he slew the maid". He is prosecuted.
The charge is, "You slew your sister wrongfully". The refutation is "I slew her lawfully". The question is, "Whether he slew her lawfully". The reason is, "Yes, for she was lamenting the death of enemies, and was indifferent to that of her brothers, she was grieved that I and the Roman people were victorious". The argument to invalidate this reason is, "Still she ought not to have been put to death by her brother without being convicted". On this the question for the decision of the judges is, "Whether when Horatia was showing her indifference to the death of her brothers, and lamenting that of the enemy, and not rejoicing at the victory of her brother and of the Roman people, she deserved to be put to death by her brother without being condemned".
XXVII For this kind of cause, in the first place, whatever is given out of the other statements of cases ought to be taken, as has been already enjoined when speaking of comparison. After that, if there is any opportunity of doing so, some statement of the case ought to be employed by which he to whom the crime is imputed may be defended. In the next place, we ought to argue that the fault which the accused person is imputing to another, is a lighter one than that which he himself committed; in the next place, we ought to employ some portion of a demurrer, and to show by whom, and through whose agency, and how, and when that matter ought to have been tried, or adjudged, or decided. And at the same time, we ought to show that it was not proper that punishment should have been inflicted before any judgment was pronounced. Then we must also point out the laws and the course of judicial proceeding by which that offence which the accused person punished of his own accord, might have been chastised according to precedent, and by the regular course of justice. In the next place, it will be right to deny that it is proper to listen to the charge which is brought by the accused person against his victim, when he who brings it did not choose to submit it to the decision of the judges, and it may be urged that one ought to consider that on which no decision has been pronounced, as if it had not been done, and after that to point out the impudence of those men who are now before the judges accusing the man whom they themselves condemned without consulting the judges, and are now bringing him to trial on whom they have already inflicted punishment. After this we may say that it is bringing irregularity into the courts of justice, and that the judges will be advancing further than their power authorizes them, if they pronounce judgment at the same time in the case of the accused person, and of him whom the accused person impeaches. And in the next place, we may point out if this rule is established, and if men avenge one offence by another offence, and one injury by another injury, what vast inconvenience will ensue from such conduct, and that if the person who is now the prosecutor had chosen to do so too, there would have been no need of this trial at all, and that if every one else were to do so, there would be an end of all courts of justice.
After that it may be pointed out, that even if the maiden who is now accused by him of this crime had been convicted, he would not himself have had any right to inflict punishment on her, so that it is a shameful thing that the man who would have had no right to punish her, even if she had been convicted, should have punished her without her being even brought to trial at all. And then the accused person may be called upon to produce the law which he says justifies his having acted in such a manner.
After that, as we have enjoined when speaking of comparison, that that which is mentioned in comparison should be disparaged by the accuser as much as possible, so, too, in this kind of argument, it will be advantageous to compare the fault of the party on whom the accusation is retorted with the crime of the accused person who justified his action as having been lawfully done. And after that it is necessary to point out that that is not an action of such a sort, that on account of it this other crime ought to have been committed. The last point, as in the case of comparison, is the assumption of a judicial decision, and the dilating upon it in the way of amplification, in accordance with the rules given respecting deliberation.
XXVIII But the advocate for the defence will invalidate what is urged by means of other statements from those topics which have already been given. But the demurrer itself he will prove first of all, by dwelling on the guilt and audacity of the man to whom he imputes the crime, and by bringing it before the eyes of the judges with as much indignation as possible if the case admits of it, and also with vehement complaint, and afterwards by proving that the accused person chastised the offence more lightly than the offender deserved, by comparing the punishment inflicted with the injury done. In the next place, it will be desirable to invalidate by opposite arguments those topics which are handled by the prosecutor in such a way that they are capable of being refuted and retorted, of which kind are the three last topics which I have mentioned. But that most vehement attack of the prosecutors, by which they attempt to prove that irregularity will be introduced into all the courts of justice if power is given to any man of inflicting punishment on a person who has not been convicted, will have its force much weakened, first of all, if the injury be shown to be such as appears intolerable not only to a good man but absolutely to any freeman, and in the next place to be so manifest that it could not have been denied even by the person who had done it, and moreover, of such a kind that the person who did chastise it was the person who above all others was bound to chastise it. So that it was not so proper nor so honourable for that matter to be brought before a court of justice as for it to be chastised in that manner in which, and by that person by whom it was chastised, and lastly, that the case was so notorious that there was no occasion whatever for a judicial investigation into it. And here it will be proper to show, by arguments and by other similar means, that there are very many things so atrocious and so notorious, that it is not only not necessary, but that it is not even desirable to wait for the slow proceedings of a judicial trial.
There is a common topic for an accuser to employ against a person, who, when he cannot deny the fact of which he is accused, still derives some hope from his attempt to show that irregularity will be introduced into all courts of justice by such proceedings. And here there will come in the demonstration of the usefulness of judicial proceedings, and the complaint of the misfortune of that person who has been punished without being condemned; and the indignation to be expressed against the audacity and cruelty of the man who has inflicted the punishment. There is also a topic for the advocate for the defence to employ, in complaining of the audacity of the person whom he chastised; and in urging that the case ought to be judged of, not by the name of the action itself, but with reference to the intention of the person who committed it, and the cause for which, and the time at which it was committed. And in pointing out what great mischief will ensue either from the injurious conduct, or the wickedness of some one, unless such excessive and undisguised audacity were chastised by him whose reputation, or parents, or children, or something else which either necessarily is, or at least ought to be dear to every one, is affected, by such conduct.
XXIX. The transference of an accusation takes place when the accusation of that crime which is imputed to one by the opposite party is transferred to some other person or circumstance. And that is done in two ways. For sometimes the motive itself is transferred, and sometimes the act. We may employ this as an instance of the transference of the motive:—"The Rhodians sent some men as ambassadors to Athens. The quaestors did not give the ambassadors the money for their expenses which they ought to have given them. The ambassadors consequently did not go. They are impeached." The charge brought against them is, "They ought to have gone." The denial is, "They ought not." The question is, "Whether they ought." The reason alleged is, "Because the money for their expenses, which is usually given to ambassadors from the public treasury, was not given to them by the quaestor." The argument brought to invalidate that reason is, "Still you ought to have discharged the duty which was entrusted to you by the public authority." The question for the decision of the judges is, "Whether, as the money which ought to have been supplied from the public treasury was not furnished to those men who were appointed ambassadors, they were nevertheless bound to discharge the duties of their embassy." In this class of inquiry, as in all the other kinds, it will be desirable to see if anything can be assumed, either from a conjectural statement of the case, or from any other kind of statement. And after that, many arguments can be brought to bear on this question, both from comparison, and from the transference of the guilt to other parties.
But the prosecutor will, in the first place, if he can, defend the man through whose fault the accused person says that that action was done; and if he cannot, he will declare that the fault of the other party has nothing to do with this trial, but only the fault of this man whom he himself is accusing. Afterwards he will say that it is proper for every one to consider only what is his own duty; and that if the one party did wrong, that was no reason for the other doing wrong too. And in the next place, that if the other man has committed a fault, he ought to be accused separately as this man is, and that the accusation of the one is not to be mixed up with the defence of the other.
But when the advocate for the defence has dealt with the other arguments, if any arise out of other statements of the case, he will argue in this way with reference to the transference of the charge to other parties. In the first place, he will point out to whose fault it was owing that the thing happened; and in the next place, as it happened in consequence of the fault of some one else, he will point out that he either could not or ought not to have done what the prosecutor says he ought: that he could not, will be considered with reference to the particulars of expediency, in which the force of necessity is involved; that he ought not, with reference to the honourableness of the proceeding. We will consider each part more minutely when talking of the deliberative kind of argument. Then he will say, that everything was done by the accused person which depended on his own power; that less was done than ought to have been, was the consequence of the fault of another person. After that, in pointing out the criminality of that other person, it will be requisite to show how great the good will and zeal of the accused person himself was. And that must be established by proofs of this sort—by his diligence in all the rest of the affair, by his previous actions, or by his previous expressions. And it may be well to show that it would have been advantageous to the man himself to have done this, and disadvantageous not to have done it, and that to have done it would have been more in accordance with the rest of his life, than the not having done it, which, was owing to the fault of the other party.
XXX But if the criminality is not to be transferred to some particular person, but to some circumstance, as in this very case—"If the quaestor had been dead, and on that account the money had not been given to the ambassadors," then, as the accusation of the other party, and the denial of the fault is removed, it will be desirable to employ the other topics in a similar manner, and to assume whatever is suitable to one's purpose from the divisions of admitted facts. But common topics are usually nearly the same to both parties, and then, after the previous topics are taken for granted, will suit either to the greatest certainty. The accuser will use the topic of indignation at the fact, the defender, when the guilt belongs to another and does not attach to himself, will urge that he does not deserve to have any punishment inflicted on him.
But the removal of the criminality from oneself is effected when the accused person declares, that what is attributed to him as a crime did not affect him or his duty, and asserts that if there was any criminality in it, it ought not to be attributed to him. That kind of dispute is of this sort—"In the treaty which was formerly made with the Samnites, a certain young man of noble birth held the pig which was to be sacrificed, by the command of the general. But when the treaty was disavowed by the senate, and the general surrendered to the Samnites, one of the senators asserted that the man who held the pig ought also to be given up." The charge is, "He ought to be given up." The denial is, "He ought not." The question is, "Whether he ought or not." The reason is, "For it was no particular duty of mine, nor did it depend on my power, being as young as I was, and only a private individual, and while the general was present with the supreme authority and command, to take care that the treaty was solemnised with all the regular formalities." The argument to invalidate this reason is, "But since you became an accomplice in a most infamous treaty, sanctioned with the most formal solemnities of religion, you ought to be surrendered." The question for the judges to decide is "Whether, since a man who had no official authority was present, by the command of the general, aiding and abetting in the adopting of the treaty, and in that important religious ceremony, he ought to be surrendered to the enemy or not." This kind of question is so far different from the previous one, because in that the accused person admits that he ought to have done what the prosecutor says ought to have been done, but he attributes the cause to some particular circumstance or person, which was a hindrance to his own intention, without having recourse to any admission. For that has greater force, which will be understood presently. But in this case a man ought not to accuse the opposite party, nor to attempt to transfer the criminality to another, but he ought to show that that has not and never has had any reference whatever to himself, either in respect of power or duty. And in this kind of cause there is this new circumstance, that the prosecutor often works up a fresh accusation out of the topics employed, to remove the guilt from the accused person. As for instance,—"If any one accuses a man who, while he was praetor, summoned the people to take up arms for an expedition, at a time when the consuls were in the city." For as in the previous instance the accused person showed that the matter in question had no connexion with his duty or his power, so in this case also, the prosecutor himself, by removing the action done from the duty and power of the person who is put on his trial, confirms the accusation by this very argument. And in this case it will be proper for each party to examine, by means of all the divisions of honour and expediency, by examples, and tokens, and by arguing what is the duty, or right, or power of each individual, and whether he had that right, and duty, and power which is the subject of the present discussion, or not. But it will be desirable for common topics to be assumed from the case itself, if there is any room in it for expressions of indignation or complaint.
XXI. The admission of the fact takes place, when the accused person does not justify the fact itself, but demands to be pardoned for it. And the parts of this division of the case are two: purgation and deprecation. Purgation is that by which (not the action, but) the intention of the person who is accused, is defended. That has three subdivisions,—ignorance, accident, necessity.
Ignorance is when the person who is accused declares that he did not know something or other. As, "There was a law in a certain nation that no one should sacrifice a calf to Diana. Some sailors, when in a terrible tempest they were being tossed about in the open sea, made a vow that if they reached the harbour which they were in sight of, they would sacrifice a calf to the god who presided over that place. Being ignorant of the law, when they landed, they sacrificed a calf." They are prosecuted. The accusation is, "You sacrificed a calf to a god to whom it was unlawful to sacrifice a calf." The denial consists in the admission which has been already stated. The reason is, "I was not aware that it was unlawful." The argument brought to invalidate that reason is, "Nevertheless, since you have done what was not lawful, you are according to the law deserving of punishment." The question for the decision of the judge is, "Whether, as he did what he ought not to have done, and was not aware that he ought not to have done so, he is worthy of punishment or not."
But accident is introduced into the admission when it is proved that some power of fortune interfered with his intention; as in this case:—"There was a law among the Lacedaemonians, that if the contractor failed to supply victims for a certain sacrifice, he should be accounted guilty of a capital offence; and accordingly, the man who had contracted to supply them, when the day of the sacrifice was at hand, began to drive in cattle from the country into the city. It happened on a sudden that the river Eurotus, which flows by Lacedaemon, was raised by some violent storms, and became so great and furious that the victims could not by any possibility be conveyed across. The contractor, for the sake of showing his own willingness, placed all the victims on the bank of the river, in order that every one on the other side of the river might be able to see them. But though, everyone was aware that it was the unexpected rise of the river which hindered him from giving effect to his zeal, still some people prosecuted him on the capital charge." The charge was, "The victims which you were bound to furnish for the sacrifice were not furnished." The reply was an admission of the fact. The reason alleged was, "For the river rose on a sudden, and on that account it was impossible to convey them across." The argument used to invalidate that reason was, "Nevertheless, since what the law enjoins was not done, you are deserving of punishment." The question for the decision of the judges was, "Whether, as in that respect the contractor did not comply with the law, being prevented by the unexpected rise of the river which hindered his giving effect to his zeal, he is deserving of punishment."
XXXII. But the plea of necessity is introduced when the accused person is defended as having done what he is accused of having done under the influence of compulsion. In this way:—"There is a law among the Rhodians, that if any vessel with a beak is caught in their harbour, it shall be confiscated. There was a violent storm at sea; the violence of the winds compelled a vessel, against the will of her crew, to take refuge in the harbour of the Rhodians. On this the quaestor claims the vessel for the people. The captain of the ship declared that it was not just that it should be confiscated." The charge is, "A ship with a beak was caught in the harbour." The reply is an admission of the fact. The reason given is, "We were driven into the harbour by violence and necessity." The argument brought to invalidate that reason is, "Nevertheless, according to the law that ship ought to become the property of the people." The question for the decision of the judge is, "Whether, as the law confiscates every ship with a beak which is found in the harbour, and as this ship, in spite of the endeavours of her crew, was driven into the harbour by the violence of the tempest, it ought to be confiscated."
We have collected these examples of these three kinds of cases into one place, because a similar rule for the arguments required for these prevails in all of them. For in all of them, in the first place, it is desirable, if the case itself affords any opportunity of doing so, that a conjecture should be introduced by the accuser, in order that that which it will be stated was not done intentionally, may be demonstrated by some suspicious circumstances, to have been done intentionally. In the next place, it will be well to introduce a definition of necessity, or of accident, or of ignorance, and to add instances to that definition, in which ignorance, or accident, or necessity appear to have operated, and to distinguish between such instances and the allegations put forward by the accused person, (that is to say, to show that there is no resemblance between them,) because this was a lighter or an easier matter, or one which did not admit of any one's being ignorant respecting it, or one which gave no room for accident or necessity. After that it must be shown that it might have been avoided, and, that the accused person might have prevented it if he had done this thing, or that thing, or that he might have guarded against being forced to act in such a manner. And it is desirable to prove by definitions that this conduct of his ought not to be called imprudence, or accident, or necessity, but indolence, indifference, or fatuity.
And if any necessity alleged appears to have in it anything discreditable, it will be desirable for the opponent, by a chain of common topics, to prove that it would have been better to suffer anything, or even to die, rather than to submit to a necessity of the sort. And then, from these topics, which have been already discussed when we spoke of the question of fact, it will be desirable to inquire into the nature of law and equity, and, as if we were dealing with an absolute juridical question, to consider this point by itself separately from all other points. And in this place, if there should be an opportunity, it will be desirable to employ instances in which there can be no room for any similar excuse, and also to institute a comparison, showing that there would have been more reason to allow it in them, and by reference to the divisions of deliberation, it may be shown that it is admitted that that action which was committed by the adversary is confessed to have been discreditable and useless, that it is a matter of great importance, and one likely to cause great mischief, if such conduct is overlooked by those who have authority to punish it.
XXXIII. But the advocate for the defence will be able to convert all these arguments, and then to use them for his own purposes. And he will especially dwell on the defence of his intentions, and in exaggerating the importance of that which was an obstacle to his intentions, and he will show that he could not have done more than he did do, and he will urge that in all things the will of the doer ought to be regarded, and that it is quite impossible that he should be justly convicted of not being free from guilt, and that under his name the common powerlessness of mankind is sought to be convicted. Then, too, he will say that nothing can be more scandalous than for a man who is free from guilt, not also to be free from punishment. But the common topics for the prosecutor to employ are these, one resting on the confession of the accused person, and the other pointing out what great licence for the violation of the law will follow, if it is once laid down that the thing to be inquired into is not the action but the cause of the action. The common topics for the advocate for the defence to employ are, a complaint of that calamity which has taken place by no fault of his, but in consequence of some overruling power, and a complaint also of the power of fortune and the powerless state of men, and an entreaty that the judges should consider his intentions, and not the result. And in the employment of all these topics it will be desirable that there should be inserted a complaint of his own unhappy condition, and indignation at the cruelty of his adversaries.
And no one ought to marvel, if in these or other instances he sees a dispute concerning the letter of the law added to the rest of the discussion. And we shall have hereafter to speak of this subject separately, because some kinds of causes will have to be considered by themselves, and with reference to their own independent merits, and some connect with themselves some other kind of question also. Wherefore, when everything is cleared up, it will not be difficult to transfer to each cause whatever is suitable to that particular kind of inquiry, as in all these instances of admission of the fact, there is involved that dispute as to the law, which is called the question as to the letter and spirit of the law. But as we were speaking of the admission of the fact we gave rules for it. But in another place we will discuss the letter and the spirit of the law. At present we will limit our consideration to the other division of the admission of the fact.
XXXIV. Deprecation is when it is not attempted to defend the action in question, but entreaties to be pardoned are employed. This kind of topic can hardly be approved of in a court of justice, because, when the offence is admitted, it is difficult to prevail on the man who is bound to be the chastiser of offences to pardon it. So that it is allowable to employ that kind of address only when you do not rest the whole cause on it. As for instance, if you were speaking in behalf of some illustrious or gallant man, who has done great services to the republic, you might, without appearing to have recourse to deprecation, still employ it in this manner:—"But if, O judges, this man, in return for the services which he has done you, and the zeal which he has displayed in your cause at all times, were now, when he himself is in such peril, to entreat you, in consideration of his many good actions, to pardon this one error, it would only be what is due both to your own character for clemency, and to his virtue, O judges, for you to grant him this indulgence at his request." Then it will be allowable to dwell upon the services which he has done, and by the use of some common topic to lead the judges to feel an inclination to pardon him.
Wherefore, although this kind of address has no proper place in judicial proceedings, except to a certain limited extent; still, because both the portion which is allowable must be employed at times, and because it is often to be employed in all its force in the senate or in the council, we will give rules for it also. For there was a long deliberation in the senate and in the council about Syphax; and there was a long discussion before Lucius Opimius and his bench of assessors respecting Quintus Numitorius Pullus; and in this case the entreaty for pardon had more influence than the strict inquiry into the case. For he did not find it so easy to prove that he had always been well affected towards the Roman people, by employing the statement of the case founded on conjecture, as to show that it was reasonable to pardon him on account of his subsequent services, when he added the topics of deprecation to the rest of his defence.
XXXV. It will be desirable, therefore, for the man who entreats to be pardoned for what he admits that he has done, to enumerate whatever services of his he is able to, and, if possible, to show that they are greater than those offences which he has committed, so that it may appear that more good than evil has proceeded from him; and then to put forward also the services done by his ancestors, if there are any such; and also to show that he did what he did, not out of hatred, or out of cruelty, but either through folly, or owing to the instigation of some one, or for some other honourable or probable cause; and after that to promise and undertake that he has been taught by this error of his, and confirmed in his resolution also by the kindness of those who pardon him, to avoid all such conduct in future. And besides this, he may hold out a hope that he will hereafter be able, in some respect or other, to be of great use to those who pardon him now; he will find it serviceable to point out that he is either related to the judges, or that he has been as far back as possible an hereditary friend of theirs; and to express to them the earnestness of his good-will towards them, and the nobility of the blood and dignity of those men who are anxious for his safety. And all other qualities and circumstances which, when attributable to persons, confer honour and dignity on them, he, using no complaint, and avoiding all arrogance, will point out as existing in himself, so that he may appear to deserve some honour rather than any kind of punishment; and after that it will be wise of him to mention other men who have been pardoned for greater offences.
And he will do himself a great deal of good if he shows that he himself, when in power, was merciful and inclined to pardon others. And the offence of which he is now accused must be extenuated and made to appear as trifling as possible; and it must be shown to be discreditable, or at all events inexpedient, to punish such a man as he is. After that it will be advisable to seek to move pity by use of common topics, according to those rules which have been laid down in the first book.
XXXVI. But the adversary will exaggerate the offences; he will say that nothing was done ignorantly, but that everything was the result of deliberate wickedness and cruelty. He will show that the accused person has been pitiless, arrogant, and (if he possibly can) at all times disaffected, and that he cannot by any possibility be rendered friendly. If he mentions any services done by him, he will prove that they were done for some private object, and not out of any good will; or else he will prove that he has conceived hatred since or else that all those services have been effaced by his frequent offences, or else that his services are of less importance than his injuries, or that, as he has already received adequate honours for his services, he ought also to have punishment inflicted on him for the injuries which he has committed. In the next place, he will urge that it is discreditable or pernicious that he should be pardoned. And besides that, it will be the very extremity of folly not to avail oneself of one's power over a man, over whom one has often wished to have power, and that it is proper to consider what feelings, or rather what hatred they ought to entertain towards him. But one common topic to be employed will be indignation at his offence, and another will be the argument, that it is right to pity those who are in distress, owing to misfortune, and not those who are in such a plight through their own wickedness.
Since, then, we have been dwelling so long on the general statement of the case, on account of the great number of its divisions, in order to prevent any one's mind from being so distracted by the variety and dissimilarity of circumstances, and so led into some errors, it appears right also to remind the reader of what remains to be mentioned of that division of the subject, and why it remains. We have said, that that was the juridical sort of examination in which the nature of right and wrong, and the principles of reward and punishment, were investigated. We have explained the causes in which inquiry into right and wrong is proceeded with. It remains now to explain the principles which regulate the distribution of rewards and punishments.
XXXVII. For there are many causes which consist of a demand of some reward. For there is often question before the judges of the rewards to be conferred on prosecutors, and very often some reward is claimed for them from the senate, or from the bench of judges. And it is not advisable that any one should think that, when we are adducing some instance which is under discussion in the senate, we by so doing are abandoning the class of judicial examples. For whatever is said with reference to approving or disapproving of a person, when the consideration of the opinions of the judges is adapted to that form of expression, that, even although it is treated with reference to the language in which the opinion is couched, is a deliberative argument, still, because it has especial reference to some person, it is to be accounted also judicial. And altogether, a man who has diligently investigated the meaning and nature of all causes will perceive that they differ both in character and in form; but in the other divisions he will see them all consistent with each other, and every one connected with the other. At present, let us consider the question of rewards. Lucius Licinius Crassus, the consul, pursued and destroyed a band of people in the province of the Nearer Gaul, who were collected together under no known or regular leader, and who had no name or number of sufficient importance to be entitled enemies of the Roman people; but still they made the province unsafe by their constant sallies and piratical outbreaks. He returns to Rome. He demands a triumph. Here, as also in the case of the employment of deprecation, it does not at all concern us to supply reasons to establish and to invalidate such a claim, and so to come before the judges; because, unless some other statement of the case is also put forth, or some portion of such statement, the matter for the decision of the judges will be a simple one, and will be contained in the question itself. In the case of the employment of deprecation, in this manner: "Whether so and so ought to be punished." In this instance, in such a manner: "Whether he ought to be rewarded."
Now we will furnish some topics suitable for the investigation into the principles of rewards.
XXXVIII. The principle, then, on which rewards are conferred is distributable into four divisions: as to the services done; the person who has done them; the kind of reward which is to be conferred; and the means of conferring it. The services done will be considered with reference to their own intrinsic merits, and to the time, and to the disposition of the man who did them, and to their attendant circumstances. They will be examined with reference to their own intrinsic merits, in this manner:—Whether they are important or unimportant; whether they were difficult or easy; whether they are of a common or extraordinary nature; whether they are considered honourable on true or false principles. And with reference to the time at which they were done:—If they were done at a time when we had need of them; when other men could or would not help them; if they were done when all other hope had failed. With reference to the disposition of the man who did them:—If he did not do them with a view to any advantage of his own, but if he did everything else for the express purpose of being able to do this afterwards. And with reference to the attendant circumstances:—If what was done appears not to have been done by chance, but in consequence of some deliberate design, or if chance appears to have hindered the design.
But, with respect to the man who did the service in question, it will be requisite to consider in what manner he has lived, and what expense or labour he has devoted to that object; whether he has at any time done any other similar action; whether he is claiming a reward for himself for what is in reality the result of another person's exertions, or of the kindness of the gods. Whether he has ever, in the case of any one else, pronounced that he ought not to be rewarded for such a reason; or, whether he has already had sufficient honour paid to him for what he has done; or, whether what has been done is an action of such a sort that, if he had not done it, he would have been deserving of punishment; but that he does not deserve reward for having done it; or, whether he is premature in his demand for a reward, and is proposing to sell an uncertain hope for a certain reward; or, whether he claims the reward in order to avoid some punishment, by its appearing as if the case had already been decided in his favour.
XXXIX. But as to the question of the reward, it will be necessary to consider what reward, how great a reward is claimed, and why it is claimed; and also, to what reward, and to how great a reward, the conduct in question is entitled. And in the next place, it will be requisite to inquire what men had such honours paid them in the time of our ancestors, and for what causes those honours were paid. And, in the next place, it will be urged that they ought not to be made too common. And this will be one common topic for any one who speaks in opposition to a person who claims a reward;—that rewards for virtue and eminent services ought to be considered serious and holy things, and that they ought not to be conferred on worthless men, or to be made common by being bestowed on men of no particular eminence. And another will be, to urge that men will become less eager to practise virtue when the reward of virtue has been made common; for those things which are scarce and difficult of attainment appear honourable and acceptable to men. And a third topic is, to put the question, whether, if there are any instances of men who, in the times of our ancestors, were thought worthy of such honours on account of their eminent virtue, they will not be likely to think it some diminution of their own glory, when they see that such men as these have such rewards conferred on them. And then comes the enumeration of those men, and the comparison of them with those against whom the orator is speaking. But the topics to be used by the man who is claiming the reward are, first of all, the exaggeration of his own action; and next, the comparison of the actions of those men who have had rewards conferred on them with his own; and lastly, he will urge that other men will be repelled from the pursuit of virtue if he himself is denied the reward to which he is entitled.