Since, then, all deliberation turns on these two points, let us first speak of utility, which is conversant about the distinction between advantages and disadvantages. But of advantages, some are necessarily such; as life, chastity, liberty, or as children, wives, relations, parents; and some are not necessarily such; and of these last, some are to be sought for their own sakes, as those which are classed among the duties or virtues, and others are to be desired because they produce some advantage, as riches and influence. But of those advantages which are sought for their own sake, some are sought for their honourableness, some for their convenience, which is inherent in them: those are sought for their honourableness which proceed from those virtues which have been mentioned a little while ago, which are intrinsically praiseworthy on their own account; but those are sought on account of some inherent advantage which are desirable as to goods of fortune or of the body: some of which are to a certain extent combined with honourableness, as honour, and glory; some have no connexion with that, as strength, beauty, health, nobleness, riches, troops of dependents. There is also a certain sort of matter, as it were, which is subordinate to what is honourable, which is most particularly visible in friendship. But friendships are seen in affection and in love. For regard for the gods, and for our parents, and for our country, and for those men who are eminent for wisdom or power, is usually referred to affection; but wives, and children, and brothers, and others whom habit and intimacy has united with us, although they are bound to us by affection, yet the principal tie is love. As, then, you know now what is good in these things, it is easily to be understood what are the contrary qualities.
XXV. But if we were able always to preserve what is best, we should not have much need of deliberation, since that is usually very evident. But because it often happens on account of some peculiarity in the times, which has great weight, that expediency is at variance with what is honourable, and since the comparison of the two principles gives rise to deliberation, lest we should either pass over what is seasonable, on account of some considerations of dignity, or what is honourable on account of some idea of expediency, we may give examples to guide us in explaining this difficulty. And since an oration must be adapted not only to truth, but also to the opinions of the hearers, let us first consider this, that there are two kinds of men: one of them unlettered and rustic, always preferring what is expedient to what is honourable; the other, accomplished and polite, preferring dignity to everything. Therefore, the one class sets its heart upon, praise, honour, glory, good faith, justice, and every virtue; but the other regards only gain, emolument, and profit. And even pleasure, which is above all things hostile to virtue, and which adulterates the nature of what is good by a treacherous imitation of it, which all men of grosser ideas eagerly follow, and which prefers that spurious copy, not only to what is honourable, but even to what is necessary, must often be praised in a speech aiming at persuasion, when you are giving counsel to men of that sort.
XXVI. This also must be considered, how much greater eagerness men display in fleeing from what is disadvantageous, than in seeking what is advantageous; for they are in the same manner not so zealous in seeking what is honourable, as in avoiding what is base. For who ever seeks for honour, or glory, or praise, or any kind of credit as earnestly as he flees from ignominy, infamy, contumely, and disgrace? For these things are attended with great pain. There is a class of men born for honour, not corrupted by evil training and perverted opinions—on which account, when exhorting or persuading, we must keep in view the object of teaching them by what means we may be able to arrive at what is good, and to avoid what is evil. But before men who have been properly brought up we shall dwell chiefly on praise and honourableness, and speak chiefly of those kinds of virtues which are concerned in maintaining and increasing the general advantage of men. But if we are speaking before uneducated and ignorant men, then we shall set before them profits, emoluments, pleasures, and the means of escaping pain; we shall also introduce the mention of insult and ignominy; for no one is such a clown, as not (even though honour itself may have no influence on him) to be greatly moved by insult and disgrace.
Wherefore we must find out from what has been already said, what has reference to utility; but as to what is possible to be done or not, with reference to which people usually inquire also how easily a thing can be done, and how far it is desirable that it should be done, we must consider chiefly with reference to those causes which produce each separate result. For there are some causes which of themselves produce results, and some which only contribute to the production of a result. Therefore, the first are called efficient causes; and the last are classed as such, that without them a thing cannot be brought about. Again, of efficient causes, some are complete and perfect in themselves; some are accessory to, and, as it were, partners in the production of the result in question. And of this kind the effect is very much diversified, being sometimes greater or less; so that which is the most efficacious is often called the only cause, though it is in reality but the main one. There are also other causes which, either on account of their origin or on account of their result, are called efficient causes. But when the question is, what is best to be done, then it is either utility or the hope of doing it which urges men's minds to agree with the speaker. And since we have now said enough about utility, let us speak of the means of effecting it.
XXVII. And on this point of the subject we must consider with whom, and against whom, and at what time, and in what place we are to do such and such a thing, also what means of arms, money, allies, or those other things which relate to the doing of any particular thing we have it in our power to employ. Nor must we consider only those means which we have, but those circumstances also which are unfavourable to us. And if in the comparison the advantages preponderate, then we must persuade our hearers, not only that what we are advising can be effected, but we must also take care that it shall appear easy, manageable, and agreeable. But if we are dissuading from any particular course, then we must either disparage the utility of it, or we must make the most of the difficulties of doing it, not having recourse to other rules, but to the same topics as are used when trying to persuade our hearers to anything. And whether persuading or dissuading, the speaker must have a store of precedents, either modern, which will be the best known, or ancient, which will perhaps have the most weight. And in this kind of discourse he must consider how he may be able often to make what is useful or necessary appear superior to what is honourable, or vice versâ. But sentiments of this kind will have great weight in influencing men's minds, (if it is desirable to make an impression on them,) which relate either to the gratification of people's desires, or to the glutting of hatred, or to the avenging of injury. But if the object is to repress the feelings of the hearers, then they must be reminded of the uncertainty of fortune, of the doubtfulness of future events, and of the risk there may be of retaining their existing fortune, if it is good; and on the other hand, of the danger of its lasting if it is bad. And these are topics for a peroration. But in expressing one's opinions, the opening ought to be short, for the orator does not come forth as a suppliant, as if he were speaking before a judge, but as an exhorter and adviser. Wherefore, he ought to settle beforehand with what intention he is going to speak, what his object is, what the subject of his discourse is to be, and he ought to exhort his hearers to listen to him while he detains them but a short time. And the whole of his oration ought to be simple, and dignified, and embellished rather by its sentiments than by its expressions.
XXVIII. C.F. I understand the topics of panegyric and persuasion. Now I am waiting to hear what is suited to judicial oratory, and I think that that is the only subject remaining.
C.P. You are quite right. And of that kind of oratory the object is equity, which is regarded, not in a single point of view only, but very often by a sort of comparison: as when there is a dispute as to who is the most appropriate prosecutor; or when the possession of an inheritance is sought for without any express law, or without any will. In which causes the question is, which alternative is the more equitable or which is most equitable. And for these causes a supply of arguments is sought for out of those topics of equity which will be mentioned presently. And even before the decision is given, there is often a dispute about the constitution of the bench of judges, when the question is either whether the person who brings the action has a right of action, or whether he has it at the present time, or whether he has ceased to have it, or whether the action ought to be brought under the provisions of this law, or according to that formula. And if these points are not discussed, or settled, or decided, before the case is brought into court, still they often have very great weight even at the trial itself, when the case is stated in this way:—"You demanded too much; you demanded it too late; it was not your business to make such a demand at all; you ought not to have demanded it of me; or you ought not to have done so under this law, or in accordance with this formula, or in this court." And this class of cases belongs to civil law, which depends on laws respecting public and private affairs, or on precedent; and the knowledge of it seems to have been neglected by most orators, but to us it appears very necessary for speaking. Wherefore, as to arranging the right of action, as to accepting or standing a trial, as to demurring to the illegality of a proceeding, as to comparisons of justice, all which topics usually belong to this class of oration, so that although they often get mixed up with the judicial proceedings, still they appear to deserve to be discussed separately; and therefore I separate them a little from the judicial proceedings, more, however, as to the time at which they are to be introduced into the discussion, than from any real diversity of character. For all discussions which are introduced about civil law, or about what is just and good, belong to that sort of discussion in which we doubt what sort of thing such and such a thing which we are going to mention is. And this question turns chiefly on equity and right.
XXIX. In all causes, then, there are three degrees, of which one at least is to be taken for the purposes of defence, if you are limited to one. For you must either take your stand in denying that the act imputed to you has been done at all, or in denying that that which you admit to have been done has the effect which, and is of the character which, the adversary asserts. Or if there can be no doubt as to the action, or the proper name of the action, then you must deny that what you are accused of is such as he states it to be; and you must urge in your defence that what you have done must be admitted to be right. Accordingly, the first objection,—the first point of conflict with the adversary, as I may call it, depends on a kind of conjecture; the second, on a kind of definition, or description, or notion of the word; but the third plea is to be maintained by a discussion on equity, and truth, and right, and on the becomingness to man of a disposition inclined to pardon. And since he who defends ought not always to resist the accuser by some objection, or denial, or definition, or opposite principles of equity, but should also at times advance general principles on which he founds his defence, the first kind of objection has in it the principle of asserting the charge to be unjust, an absolute denial of the fact; the second urges that the definition given by the adversary does not apply to the action in question the third consists in the advocate defending the action as having been rightly done, without raising any dispute as to the name of it.
In the next place, the accuser must oppose to every argument that, which if it were not in the accusation, would prevent, there being any cause at all. Therefore, those arguments which are brought forward in that way, are said to be the foundations of causes, although those which are brought forward in opposition to the plan of the defence, are no more so in reality than the principles of the defence themselves; but for the sake of distinction, we call that a reason which is urged by the party on his trial in the way of demurrer for the sake of repelling an accusation; and unless he had such a refuge he would have nothing to allege by way of defence: but the foundation of his defence is that which is alleged by way of undermining the arguments of the adversary, without which the accusation can have no ground to stand upon.
XXX. But from the meeting and conflict, as it were, of the reasons and of the corroborative proofs, a question arises, which I call a dispute, in which the question is, what is the question before the court, and what the dispute is about. For the first point which the adversaries contend for implies an inquiry of large extent in conjecture: as "Whether Decius has received the money;" in definition, as "Whether Norbanus has committed treason against the people;" in justice, as "Whether Opimius slew Gracchus lawfully." These questions which come into conflict first by arguing and resisting, are, as I have said, of wide extent and doubtful meaning. The comparison of the arguments and corroborative proofs narrows the question in dispute. In conjecture there is no dispute at all. For no one either can, or ought to, or is accustomed to, give a reason for an act which he asserts never took place. Therefore, in these causes the original question and the ultimate dispute are one and the same thing. But in them, when the assertion is advanced, "He did not commit treason in proceeding to violent measures in respect to Caepio; for it was the first indignation of the Roman people that prompted that violent conduct, and not the conduct of the tribune: and the majesty, since it is identical with the greatness of the Roman people, was rather increased than diminished by retaining that man in power and office." And when the reply is, "Majesty consists of the dignity of the empire and name of the Roman people, which that man impairs, who excites sedition by appealing to the violent passions of the multitude;" then comes the dispute, Whether his conduct was calculated to impair that majesty, who acted upon the inclinations of the roman people, so as to do a thing which was both just and acceptable to them by means of violence. But in such causes as these, when it is alleged in defence of the accused party that something has been rightly done, or when it must be admitted that it has been done, while the principle of the act is open to discussion: as in the case of Opimius, "I did it lawfully, for the sake of preserving the general safety and the republic;" and when Decius replies, "You had no power or right to slay even the wickedest of the citizens without a trial." Then arises the dispute, "Had Opimius lawfully the power, for the sake of the safety of the republic, to put to death a citizen who was overturning the republic, without his being condemned?" And so those disputes which arise in these controversies which are marked out by certain persons and times become gradually infinite, and after the times and persons are put out of the question, are again reduced to the form and rules under which their merits can be discussed.
XXXI. But in corroborative arguments of the most important character, those points must also be established which can be opposed to the defence, being derived either from the letter of the law, or of a will, or from the language of a judicial decision, or of a stipulation, or of a covenant. And even this kind has no connexion with those causes which depend upon conjecture. For when an action is denied altogether, it cannot be impeached by reference to the letter of the law. It does not even come under definition, as to the character of the letter of the law itself. For although some expression or other is to be defined by reference to the letter of the law, so as to be sure what meaning it has: as when the question arises out of a will, what is meant by provisions, or out of the covenant of a lease, what are moveables or fixtures; then it is not the fact of there being written documents, but the interpretation of what is written, that gives rise to controversy. But when many things may be implied by one expression, on account of the ambiguity of some word or words, so that he who is speaking on the other side may be allowed to draw the meaning of what is written as is advantageous to him, or in fact, as he pleases; or, if the document be not drawn up in ambiguous language, he may either deduce the wish and intention of the writer from the words, or else say that he can defend what has been done by a document which is perfectly different relating to the same facts; then a dispute arises from a comparison of the two written documents; so that the writings being ambiguous, it is a question which is most strongly implied; and in a comparison between the letter and the spirit of the documents an argument is adduced to show which the judge is the most bound to be guided by; or in documents of a wholly contradictory nature, which is the most to be approved.
But when the point in dispute is once established, then the orator ought to keep in view, what is to be proved by all the arguments derived from the different topics for discovering arguments. And although it is quite sufficient for him who sees what is concealed in each topic, and who has all those topics, as a kind of treasury of arguments, at his fingers' ends; still we will touch upon those which are peculiar to certain causes.
XXXII. In conjecture, then, when the person on his trial takes refuge in denial of the fact, these are the two first things for the accuser to consider, (I say accuser, meaning every kind of plaintiff or commencer of an action; for even without any accuser, in the strict sense of the word, these same kinds of controversies may frequently arise;) however, these are his first points for consideration, the cause and the event. When I say the cause, I mean the reason for doing a thing. When I say the event, I mean that which was done. And this same division of cases was made just now, when speaking of the topics of persuasion. For the rules which were given in deliberating upon the future, and how they ought to have a bearing upon utility, or a power of producing effects, a man who is arguing upon a fact is bound to collect, so as to show that they must have been useful to the man whom he is accusing, and that the act might possibly have been done by him. The question of utility, as far as it depends upon conjecture, is opened, if the accused person is said to have done the act of which he is accused, either out of the hope of advantage or the fear of injury. And this argument has the greater weight, the greater the advantages or disadvantages anticipated are said to be. With reference to the motive for an action we take into consideration also the feelings of minds, if any recent anger, or long-standing grudge, or desire for revenge, or indignation at an injury; if any eagerness for honour, or glory, or command, or riches; if any fear of danger, any debt, any difficulties in pecuniary matters, have had influence; if the man is bold, or fickle, or cruel, or intemperate, or incautious, or foolish, or loving, or excitable, or given to wine; if he had any hope of gaining his point, or any expectation of concealing his conduct; or, if that were detected, any hope of repelling the charge, or breaking through the danger, or even postponing it to a subsequent time; or if the penalty to be inflicted by a court of justice is more trifling than the prize to be gained by the act; or if the pleasure of the crime is greater than the pain of the conviction.
It is generally by such circumstances as these that the suspicion of an act is confirmed, when the causes why he should have desired it are found to exist in the party accused, together with the means of doing it. But in his will we look for the benefit which he may have calculated on from the attainment of some advantage, or the avoidance of some disadvantage, so that either hope or fear may seem to have instigated him, or else some sudden impulse of the mind, which impels men more swiftly to evil courses than even considerations of utility. So this is enough to have said about the causes.
C.F. I understand; and I ask you now what the events are which you have said are produced by such causes?
XXXIII. C.P. They are certain consequential signs of what is past, certain traces of what has been done, deeply imprinted, which have a great tendency to engender suspicion, and are, as it were, a silent evidence of crimes, and so much the more weighty because all causes appear as a general rule to be able to give ground for accusations, and to show for whose advantage anything was; and these arguments have an especial propriety of reference to those who are accused, such as a weapon, a footstep, blood, the detection of anything which appears to have been carried off or taken away; or any reply inconsistent with the truth, or any hesitation, or trepidation, or the fact of the accused person having been seen with any one whose character is such as to give rise to suspicion; or of his having been seen himself in that very place in which the action was done; or paleness, or tremor, or any writing, or anything having been sealed up or deposited anywhere. For these are circumstances of such a nature as to make the charge full of suspicion, either in connexion with the act itself, or with the time previous or subsequent to it. And if they are not so, still it will be proper to rely on the causes themselves, and on the means which the accused person had of doing the action, with the addition of that general argument, that he was not so insane as to be unable to avoid or conceal any indications of the action, so as to be discovered and to give ground for an accusation. On the other hand, there is that common topic, that audacity is joined to rashness, not to prudence. Besides, there comes the topic suited to amplification, that we are not to wait for his confessing; that offences are proved by arguments; and here, too, precedents will be adduced. And thus much about arguments.
XXXIV. But if there is also a sufficiency of witnesses, the first thing will be to praise the party accused, and to say that he himself has taken care not to be convicted by argument; that he could not escape from witnesses: then each of the witnesses must be praised, (and we have stated already what are the things for which people can be praised;) and in the next place, it must be urged that it is possible for it to be quite justifiable not to yield to a specious argument, (inasmuch as such an one is often false,) but quite impossible to refuse belief to a good and trusty man, unless there is some fault in the judge. And then, too, if the witnesses are obscure or insignificant, we must say that a man's credit is not to be estimated by his fortune, but that those are the most trustworthy witnesses on every point who have the easiest means of knowing the truth of the matter under discussion. If the fact of an examination of slaves under torture having taken place, or a demand that such should take place, will assist the cause, then in the first place the general character of such examinations must be extolled: we must speak of the power of bodily pain; of the opinion of our ancestors, who would certainly have abolished the whole system if they had not approved of it; of the customs of the Athenians and Rhodians, very wise men, among whom (and that is a most terrible thing) even freemen and citizens are tortured; of the principles also of the most prudent of our own countrymen, who though they are unwilling to allow slaves to be examined against their masters, still did allow of such examination in the case of incest and conspiracy,—and in fact such an examination took place in my consulship. That declamation which men are in the habit of using to throw discredit on such examinations must be laughed out of court, and called studied and childish. Then a belief must be inculcated that the examination has been conducted with care, and without any partiality; and the answers given in the examination must be weighed by arguments and by conjecture. And these are for the most part the divisions of an accusation.
XXXV. But the first division of a defence is the invalidating of the motives alleged for the action,—either as having no real existence, or as not having been so important, or as not having been likely to influence any one but the person accused; or we may urge that he could have attained the same object more easily; or that he is not a man of such habits, or of such a character; or that he was not so much a slave to sudden impulses, or at all events not to such trifling ones. And the advocate for the defence will disparage the means alleged to be in the power of the accused person, if he shows that either strength, or courage, or power, or resources were wanting to him; or that the time was unfavourable, or the place unsuitable; or that there were many witnesses, not one of whom he would have chosen to trust; or that he was not such a fool as to undertake a deed which he could not conceal; nor so senseless as to despise the penalties of the law and the courts of justice. And he will do away with the effect of the consequences alleged, by explaining that those things are not certain proofs of an act which might have happened even if the act had never been done; and he will dwell on the details, and urge that they belong as much to what he himself alleges was the fact, as to that which is at present the ground of accusation: or if he agrees with the accuser on those points, still he will say that ought to be of avail rather as a defence to himself against danger, than as an engine for injuring his safety; and he will run down the whole body of witnesses and examinations under torture, generally, and also in detail as far as he can, by the use of the topics of reprehension which have been explained already. The openings of these causes which are intended to excite suspicion by their bitterness will be thus laid down by the accuser; and the general danger of all intrigues will be denounced; and men's minds will be excited so as to listen attentively. But the person who is being accused will bring forward complaints of charges having been trumped up against him, and suspicions ferreted out from all quarters; and he will speak of the intrigues of the accuser, and also of the common danger of all citizens from such proceedings: and so he will try to move the minds of the judges to pity, and to excite their good-will in some degree. But the narration of the accuser will be a separate count, as it were, which will contain an explanation of every sort of transaction liable to suspicion, with every kind of argument scattered over it, and all the topics for the defence discredited. But the speaker for the defence must pass over or discredit all the arguments employed to raise suspicion, and will limit himself to a narration of the actual facts and events which have taken place. But in the corroboration of our own arguments, and in the invalidation of those of our adversaries, it will be often the object of the accuser to rouse the feelings of the minds of his hearers, and of the advocate for the defence to pacify them. And this will be the course of both of them especially in the peroration. The one must have recourse to a reiteration of his arguments, and to a general accumulation of them together; the other, when he has once clearly explained his own cause, refuting the statements of his adversary, must have recourse to enumeration; and, when he has effaced every unfavourable impression, then at the end he will endeavour to move the pity of his judges.
XXXVI. C.F. I think I know now how conjecture ought to be dealt with. Let me hear you now on the subject of definition.
C.P. With respect to that the rules which are given are common to the accuser and the defender. For whichever of them by his definition and description of a word makes the greatest impression on the feelings and opinions of the judges, and whichever keeps nearest to the general meaning of the word, and to that preconceived opinion which those who are the hearers have adopted in their minds, must inevitably get the better in the discussion. For this kind of topic is not handled by a regular argumentation, but by shaking out, as it were, and unfolding the word; so that, if, for instance, in the case of a criminal acquitted through bribery and then impeached a second time, the accuser were to define prevarication to be the utter corruption of a tribunal by an accused person; and the defender were to urge a counter definition, that it is not every sort of corruption which is prevarication, but only the bribing of a prosecutor by a defendant: then, in the first place, there would be a contest between the different alleged meanings of the word; in which case, though the definition, if given by the speaker for the defence, approaches nearest to general usage and to the sense of common conversation, still the accuser relies on the spirit of the law, for he says that it ought not to be admitted that those men who framed the laws considered a judicial decision as ratified when wholly corrupt, but that if even one judge be corrupted, the decision should be annulled. He relies on equity; he urges that the law ought to have been framed differently, if that was what was meant; but that the truth is, that whatever kinds of corruption could possibly exist were all meant to be included under the one term prevarication. But the speaker for the defence will bring forward on his side the usage of common conversation; and he will seek the meaning of the word from its contrary; from a genuine accuser, to whom a prevarication is the exact opposite; or from consequents, because the tablets are given to the judge by the accuser; and from the name itself, which signifies a man who in contrary causes appears to be placed, as it were, in various positions. But still he himself will be forced to have recourse to topics of equity, to the authority of precedents, and to some dangerous result. And this may be a general rule, that when each has stated his definition, keeping as accurately as he can to the common sense and meaning of the word, he should then confirm his own meaning and definition by similar definitions, and by the examples of those men who have spoken in the same way.