Cicero, De Inventione

ToposText · Cicero · 287 sections

urn:cts:latinLit:phi0474.phi036:2.92
§ 2.92 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.
urn:cts:latinLit:phi0474.phi036:2.93
§ 2.93 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.
urn:cts:latinLit:phi0474.phi036:2.94
§ 2.94 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.
urn:cts:latinLit:phi0474.phi036:2.95
§ 2.95 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.”
urn:cts:latinLit:phi0474.phi036:2.96
§ 2.96 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 Eurotas, 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.
urn:cts:latinLit:phi0474.phi036:2.97
§ 2.97 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.
urn:cts:latinLit:phi0474.phi036:2.98
§ 2.98 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 ram 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 ram 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 ram 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.”
urn:cts:latinLit:phi0474.phi036:2.99
§ 2.99 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,
urn:cts:latinLit:phi0474.phi036:2.100
§ 2.100 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.
urn:cts:latinLit:phi0474.phi036:2.101
§ 2.101 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.
urn:cts:latinLit:phi0474.phi036:2.102
§ 2.102 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.
urn:cts:latinLit:phi0474.phi036:2.103
§ 2.103 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.
urn:cts:latinLit:phi0474.phi036:2.104
§ 2.104 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.
urn:cts:latinLit:phi0474.phi036:2.105
§ 2.105 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
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§ 2.106 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;
urn:cts:latinLit:phi0474.phi036:2.107
§ 2.107 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.
urn:cts:latinLit:phi0474.phi036:2.108
§ 2.108 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. 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 goodwill; or else he will prove that he has conceived hatred since; or else that all those services have been effaced by his subsequent 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.
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§ 2.109 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.
urn:cts:latinLit:phi0474.phi036:2.110
§ 2.110 It remains now to explain the principles which regulate the distribution of rewards and punishments. 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.
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§ 2.111 At present, let us consider the question of rewards. Lucius Licinius Crassus, the consul [95 BCE], 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.”
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§ 2.112 Now we will furnish some topics suitable for the investigation into the principles of rewards. 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 he 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.
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§ 2.113 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.
urn:cts:latinLit:phi0474.phi036:2.114
§ 2.114 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 practice 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;
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§ 2.115 and lastly, he will urge that other men will be repelled from the pursuit of virtue if he himself is denied the reward to which he is entitled. But the means of conferring the rewards are taken into consideration when any pecuniary reward is asked for; for then it is necessary to consider whether there is an abundance of land, and revenue, and money, or a dearth of them. The common topics are,—that it is desirable to increase the resources of the state, not to diminish them; and that he is a shameless man who is not content with gratitude in requital of his services, but who demands also solid rewards. But on the other hand, it may be urged, that it is a sordid thing to argue about money, when the question is about showing gratitude to a benefactor; and that the claimant is not asking wages for a piece of work, but honour such as is due for an important service. And we have now said enough about the statements of cases; now it seems necessary to speak of those controversies which turn upon the letter of the law.
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§ 2.116 The controversy turns upon the letter of the law when some doubt arises from the consideration of the exact terms in which it is drawn up. That arises from ambiguity, from the letter of the law, from its intention, from contrary laws, from ratiocination, and definition. But a controversy arises from ambiguity, when it is an obscure point what was the intention of the writer, because the written words mean two or even more different things. In this manner:—"The father of a family, when he was making his son his heir, left a hundredweight of silver plate to his wife, in these terms: “Let my heir give my wife a hundredweight of silver plate, consisting of such vessels as may be chosen.” After he was dead, the mother demands of her son some very magnificent vessels of very valuable carving. He says that he is only bound to give her those vessels which he himself chooses. Here, in the first place, it is necessary to show if possible that the will has not been drawn up in ambiguous terms, because all men in ordinary conversation are accustomed to employ that expression, whether consisting of one word or more, in that meaning in which the speaker hopes to show that this is to be understood.
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§ 2.117 Then it is desirable to prove that from both the preceding and subsequent language of the will, the real meaning which is being sought may be made evident. So that if all the words, or most of them, were considered separately by themselves, they would appear of doubtful meaning. But as for those which can be made intelligible by a consideration of the whole document, these have no business to be thought obscure. In the next place, it will be proper to draw one's conclusion as to the intentions which were entertained by the writer from all his other writings, and actions, and sayings, and his general disposition, and from the usual tenor of his life; and to scrutinise that very document in which this ambiguous phrase is contained which is the subject of the present inquiry, all over, in all its parts, so as to see whether there is anything opposite to that interpretation which we contend for, or contrary to that which the adversary insists on adopting. For it will be easy to consider what it is probable that the man who drew up the document intended, from its whole tenor, and from the character of the writer, and from those other circumstances which are characteristic of the persons concerned.
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§ 2.118 In the next place, it will be desirable to show, if the facts of the case itself afford any opportunity for doing so, that that meaning which the opposite party contends for, is a much more inconvenient one to adopt than that which we have assumed to be the proper one, because there is no possible means of carrying out or complying with that other meaning; but what we contend for can be accomplished with great ease and convenience. As in this law (for there is no objection to citing an imaginary one for the sake of giving an instance, in order to the more easy comprehension of the matter):—"Let not a prostitute have a golden crown. If such a case exists, it must be confiscated." Now, in opposition to a man who contended that that was to become public property in accordance with this law, it might be argued, “that there could be no way of making a prostitute public property, and there is no intelligible meaning for the law if that is what is to be adopted as its proper construction; but as to the confiscation of anything made of gold, the management and the result is easy, and there is no difficulty in it.”
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§ 2.119 And it will be desirable also to pay diligent attention to this point, whether if that sense is sanctioned which the opposite party contends for, any more advantageous, or honourable, or necessary object appears to have been omitted by the framer of the document in question. That will be done if we can prove that the object which we are attempting to prove is either honourable, or expedient, or necessary; and if we can also assert that the interpretation which our adversaries insist upon, is not at all entitled to such a character. In the next place, if there is in the law itself any controversy arising from any ambiguity, it will be requisite to take great care to show that the meaning which our adversaries adopt is provided for in some other law.
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§ 2.120 But it will be very serviceable indeed to point out how the testator would have expressed himself, if he had wished the interpretation which the adversary puts upon his words to be carried into execution or understood. As for instance, in this cause, the one, I mean, in which the question is about the silver plate, the woman might argue, “That there was no use in adding the words'as may be chosen,' if the matter was left to the selection of the heir; for if no such words had been inserted, there could have been no doubt at all that the heir might have given whatever he himself chose. So that it was downright madness, if he wished to take precautions in favour of his heir, to add words which might have been wholly left out without such omission prejudicing his heir's welfare.”
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§ 2.121 Wherefore, it will be exceedingly advisable to employ this species of argument in such causes:—"If he had written with this intention he would not have employed that word; he would not have placed that word in that place," for it is from such particulars as these that it is easiest to collect the intention of the writer. In the next place, it is necessary to inquire when the document was drawn up, in order that it may be understood what it was likely that he should have wished at such a time. Afterwards it will be advisable to point out, by reference to the topics furnished by the deliberative argument, what is more useful and what more honourable to the testator to write, and to the adversary to prove; and it will be well for both parties to employ common topics, if there is any room for extending either argument. A controversy arises with respect to the letter of the document and to its meaning, when one party employs the very words which are set down in the paper; and the other applies all his arguments to that which he affirms that the framer of the document intended.
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§ 2.122 But the intention of the framer of the document must be proved by the man who defends himself, by reference to that intention, to have always the same object in view and the same meaning; and it must also, either by reference to the action or to some result, be adapted to the time which the inquiry concerns. It must be proved always to have the same object in view, in this way:—"The head of a house, at a time when he had no children, but had a wife, inserted this clause in his will:'If I have a son or sons born to me, he or they is or are to be my heir or heirs.' Then follow the ordinary provisions. After that comes the following clause:'If my son dies before he comes into the property, which is held in trust for him, then,' says the clause,'you shall be my reversionary heir.' He never has a son. His next of kin raise a dispute with the man who is named as the heir, in the case of the testator's son dying before he comes into the property which his guardians are holding for him." In this case it cannot be said that the meaning of the testator ought to be made to suit the time or some particular result, because that intention alone is proved on which the man who is arguing against the language of the will relies, in order to defend his own right to the inheritance.
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§ 2.123 There is another class of topics which introduce the question as to the meaning of expressions, in which the mere simple intention of the framer is not endeavoured to be proved, for that has the same weight with reference to every period and every action; but it is argued that it ought to be interpreted with reference to some particular action, or to some event happening at that particular time. And that is especially supported by the divisions of the juridical assumptive mode of investigation. For then the comparison is instituted; as in the case of “a man who, though the law forbad the gates to be opened by night, did open them in a certain war, and admitted some reinforcements into the town, in order to prevent their being overwhelmed by the enemy if they remained outside the gates; because the enemy were encamped close to the walls.”
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§ 2.124 Then comes the retorting of the charge; as in the case of “that soldier who, when the common law of all men forbad any one to kill a man, slew his own military tribune who was attempting to offer violence to him.” Then comes the exculpation; as in the case of “that man who, when the law had appointed some particular days within which he was to proceed on his embassy, did not set out because the quaestor did not furnish him with money for his expenses.” Then comes the admission of the fact by way of purgation, and also by the excuse of ignorance; as “in the case of the sacrificing a calf;” and with reference to compulsion, as “in the case of the beaked ship;” and with reference to accident, as “in the case of the sudden rise of the river Eurotas.” Wherefore, it is best that the meaning should be introduced in such a way, as that the framer of the law should be proved to have intended some one definite thing; else in such a way that he should be proved to have meant this particular thing, under these circumstances, and at this time.
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§ 2.125 He, therefore, who is defending the exact language of the law, will generally be able to use all these topics; and will always be able to use the greater part of them. First of all, he will employ a panegyric of the framer of it, and the common topic that those who are the judges have no business to consider anything except what is expressly stated in the law; and so much the more if any legal document be brought forward, that is to say, either the law itself, or some portion of the law. Afterwards—and this is a point of the greatest importance—he will employ a comparison of the action or of the charge brought by the opposite party with the actual words of the law; he will show what is contained in the law, what has been done, what the judge has sworn. And it will be well to vary this topic in many ways, sometimes professing to wonder in his own mind what can be said against this argument; sometimes recurring to the duty of the judge, and asking of him what more he can think it requisite to hear, or what further he expects; sometimes by bringing forward the adversary himself, as if in the position of a person making an accusation; that is to say, by asking him whether he denies that the law is drawn up in that manner, or whether he denies that he himself has contravened it, or disputed it. If he denies either of these points, then one must avow that one will say no more;
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§ 2.126 if he denies neither of them, and yet continues to urge his arguments in opposition to one, then one must say that it is impossible for any one ever to expect to see a more impudent man. And it will be well to dwell on this point as if nothing besides were to be said, as if nothing could be said in contradiction, by reciting several times over what is written; by often contrasting the conduct of the adversary with what is written; and sometimes by recurring vehemently to the topic of the judge himself; in which one will remind the judge of what oath he has taken, of what his conduct is bound to be; and urge that there are two causes on account of which a judge is bound to hesitate, one if the law be obscurely worded, the other if the adversary denies anything.
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§ 2.127 But as in this instance the wording of the law is plain, aud the adversary admits every fact that is alleged, the judge has now nothing to do but to fulfil the law, and not to interpret it. When this point has been sufficiently insisted on, then it will be advisable to do away with the effect of those things which the adversary has been able to urge by way of objection. But such objections will be made if the framer of the law can be absolutely proved to have meant one thing, and written another; as in that dispute concerning the will which we mentioned just now: or some adventitious cause may be alleged why it was not possible or not desirable to obey the written law minutely.
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§ 2.128 If it is stated that the framer of the law meant one thing, and wrote another, then he who appeals to the letter of the law will say that it is our business not to discuss the intention of a man who has left us a plain proof of that intention, to prevent our having any doubt about it; and that many inconveniences must ensue if the principle is laid down that we may depart from the letter of the law. For that then those who frame laws will not think that the laws which they are making will remain firm; and those who are judges will have no certain principle to follow, if once they get into the habit of departing from the letter of the law. But if the intention of the framer of the law is what is to be looked at, then it is he, and not his adversaries, who relies on the meaning of the lawgiver. For that that person comes much nearer to the intention of the framer of a law who interprets it from his own writings, than he who does not look at the meaning of the framer of the law by that writing of his own which he has left to be as it were an image of his meaning, but who investigates it under the guidance of some private suspicions of his own.
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§ 2.129 If the party who stands on the meaning of the lawgiver brings forward any reasons, then, in the first place, it will be necessary to reply to those reasons; to urge how absurd it is for a man not to deny that he has acted contrary to the law, but at the same time to give some reason for having acted so. Then one will say too that all things are turned upside down; that formerly prosecutors were in the habit of trying to persuade the judges that the person who was being prosecuted before them was implicated in some fault, and of alleging some reasons which had instigated him to commit this fault; but that now the accused person himself is giving the reasons why he has offended against the laws.
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§ 2.130 Then it will be proper to introduce this division, each portion of which will have many lines of argument suitable to it: in the first place, that there is no law with reference to which it is allowable to allege any reasons contrary to the law; in the next place, that if such a course is admissible in any law, this is such a law that it is not admissible with respect to it; and lastly, that, even if such reasons ever might be alleged, at all events this is not such a reason. The first part of the argument is confirmed by pretty nearly the same topics as these: that the framer of the law was not deficient in either ability, or pains, or any faculty requisite to enable him to express plainly what his intention was; that it would not have been either displeasing or difficult to him to insert such an exception as that which the opposite party contends for in his law, if he thought any exception requisite; and in fact, that those people who frame laws often do insert clauses of exceptions.
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§ 2.131 After that it is well to enumerate some of the laws which have exceptional clauses attached to them, and to take especial care to see whether in the law itself which is under discussion there is any exception made in any chapter, or whether the same man who framed this law has made exceptions in other laws, so that it may be more naturally inferred that he would have made exceptions in this one, if he had thought exceptions requisite; and it will be well also to show that to admit of a reason for violating the law is the same thing as abrogating the law, because when once such a reason is taken into consideration, it is no use to consider it with reference to the law, inasmuch as it is not stated in the law. And if such a principle is once laid down; then a reason for violating the law, and a licence to do so, is given to every one, as soon as they perceive that you as judges decide the matter in a way which depends on the ability of the man who has violated the law, and not with reference to the law which you have sworn to administer. Then, too, one must point out that all principles on which judges are to judge, and citizens are to live, will be thrown into confusion if the laws are once departed from; for the judges will not have any rules to follow, if they depart from what is set down in the law, and no principles on which they can reprove others for having acted in defiance of the law.
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§ 2.132 And that all the rest of the citizens will be ignorant what they are to do, if each of them regulates all his actions according to his own ideas, and to whatever whim or fancy comes into his head, and not according to the common statute law of the state. After that it will be suitable to ask the judges why they occupy themselves at all with the business of other people;—why they allow themselves to be harassed in discharging the offices of the republic, when they might often spend the time in promoting their own ends and private interests;—why they take an oath in a certain form;—why they assemble at a regular time and go away at a regular time;—why no one of them ever alleges any reason for being less frequent in his discharge of his duty to the republic, except such as is set down in some formal law as an exception. And one may ask, whether they think it right that they should be bound down and exposed to so much inconvenience by the laws, and at the same time allow our adversaries to disregard the laws.
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§ 2.133 After that it will be natural to put the question to the judges, whether, when the party accused himself endeavours to set down in the law, as an exception, that particular case in which he admits that he has violated the law, they will consent to it. And to ask also, whether what he has actually done is more scandalous and more shameless than the exception which he wishes to insert in the law;—what indeed can be more shameless? Even if the judges were inclined to make such an addition to the law, would the people permit it? One might also press upon them that this is even a more scandalous measure, when they are unable to make an alteration in the language and letter of the law, to alter it in the actual facts, and to give a decision contrary to it;
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§ 2.134 and besides, that it is a scandalous thing that anything should be taken from the law, or that the law should be abrogated or changed in any part whatever, without the people having any opportunity of knowing, or approving, or disapproving of what is done; that such conduct is calculated to bring the judges themselves into great odium; that it is not the proper time nor opportunity for amending the laws; that this ought only to be brought forward in an assembly of the people, and only to be done by the people; that if they now do so, the speaker would like to know who is the maker of the new law, and who are to obey it; that he sees actions impending, and wishes to prevent them; that as all such proceedings as these are exceedingly useless and abundantly discreditable, the law, whatever it is like, ought, while it exists, to be maintained by the judges, and hereafter, if it is disapproved of, to be amended by the people. Besides this, if there were no written law, we should take great trouble to find one; and we should not place any confidence in that man, not even if he were in no personal danger himself; but now, when there is a written law, it is downright insanity to attend to what that man says who has violated the law, rather than to the language of the law itself. By these and similar arguments it is proved that it is not right to admit any excuse which is contrary to the letter of the law.
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§ 2.135 The second part is that in which it is desirable to prove that if such a proceeding is right with respect to other laws, it is not advisable with respect to this one. This will be shown if the law appears to refer to matters of the greatest importance, and usefulness, and honourableness, and sanctity; so that it is disadvantageous, or discreditable, or impious not to obey the law as carefully as possible in such a matter. Or the law may be proved to have been drawn up so carefully, and such great diligence may be shown to have been exercised in framing each separate provision of it, and in making every exception that was allowable, that it is not at all probable that anything proper to be inserted has been omitted in so carefully considered a document. The third topic is one exceedingly necessary for a man who is arguing in defence of the letter of the law; by which it may be urged, that even if it is decent for an excuse to be admitted contrary to the letter of the law, still that excuse which is alleged by his adversaries is of all others the least proper to be so alleged.
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§ 2.136 And this topic is necessary for him on this account,—because the man who is arguing against the letter of the law ought always to have some point of equity to allege on his side. For it is the greatest possible impudence for a man who wishes to establish some point in opposition to the exact letter of the law, not to attempt to fortify himself in so doing, with the assistance of the law. If therefore the accuser in any respect weakens the defence by this topic, he will appear in every respect to have more justice and probability in favour of his accusation. For all the former part of his speech has had this object,—that the judges should feel it impossible, even if they wished it, to avoid condemning the accused person; but this part has for its object the making them wish to give such a decision, even if it were not inevitable.
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§ 2.137 And that result will be obtained, if we use those topics by which guilt may be proved not to be in the man who defends himself, by using the topic of comparison, or by getting rid of the accusation, or by recrimination, or by some species of confession, (concerning all which topics we have already written with all the precision of which we were capable,) and if we take those which the case will admit of for the purpose of throwing discredit on the argument of our adversary;—or if reasons and arguments are adduced to show why or with what design those expressions were inserted in the law or will in question, so that our side of the question may appear established by the meaning and intention of the writer, and not only by the language which he has employed. Or the fact may be proved by other statements and arguments.
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§ 2.138 But any one who speaks against the letter of the law will first of all introduce that topic by which the equity of the excuse is proved; or he will point out with what feelings, with what design, and on what account he did the action in question. And whatever excuse he alleges he will defend according to some of the rules which I have already given with respect to assumptions. And when he has dwelt on this topic for some time, and set forth the principles of his conduct and the equity of his cause in the most specious manner he can, he will also add, in opposition to the arguments of his adversaries, that it is from these topics for the most part that excuses which are admissible ought to be drawn. He will urge that there is no law which sanctions the doing of any disadvantageous or unjust action; that all punishments which are enacted by the laws have been enacted for the sake of chastising guilt and wickedness;
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§ 2.139 that the very framer of the laws, if he were alive, would approve of this conduct, and would have done the very same thing himself if he had been in similar circumstances. And that it is on this account that the framer of the law appointed judges of a certain rank and age, in order that there might be men, not capable merely of reading out what he had written, which any boy might do, but able also to understand his thoughts and to interpret his intentions. He will add, that that framer of the law, if he had been intrusting the laws which he was drawing up to foolish men and illiterate judges, would have set down everything with the most scrupulous diligence; but, as it is, because he was aware what sort of men were to be the judges, he did not put down many things which appeared to him to be evident; and he expected that you would be not mere readers of his writings, but interpreters of his intentions.
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§ 2.140 Afterwards he will proceed to ask his adversaries—"What would you say if I had done so and so?" “What would you think if so and so had happened?” “Suppose any one of those things had happened which would have had a most unfailing excuse, or a most undeniable necessity, would you then have prosecuted me?” But the law has nowhere made any such exception. It follows, therefore, that it is not every possible circumstance which is mentioned in the written law but that some things which are self-evident are guarded against by unexpressed exceptions. Then he will urge, that nothing could be carried on properly either by the laws or by any written document whatever, or even in daily conversation, or in the commands given in a private household, if every one chose to keep his eyes on the exact language of the order, and not to take into consideration the intentions of him who uttered the order.
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§ 2.141 After that he will be able, by reference to the divisions of usefulness and honour, to point out how inexpedient or how dishonourable that would have been which the opposite party say ought to have been done, or to be done now. And on the other hand, how expedient and how honourable that is which we have done, or demand should be done. In the next place, he will urge that we set a value on our laws not on account of their wording, which is a slight and often obscure indication of their intention, but on account of the usefulness of those things concerning which they are written, and the wisdom and diligence of those men who wrote them. Afterwards he will proceed to describe what the law is, so that it shall appear to consist of meanings, not of words; and that the judge may appear to be obedient to the law, who follows its meaning and not its strict words. After that he will urge how scandalous it is that he should have the same punishment inflicted on him who has violated the law out of some mere wickedness and audacity, as on the man who, on account of some honourable or unavoidable reason, has departed not from the spirit of the law, but from its letter. And by these and similar arguments he will endeavour to prove that the excuse is admissible, and is admissible in this law, and that the excuse which he himself is alleging ought to be admitted.
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§ 2.142 And, as we said that this would be exceedingly useful to the man who was relying on the letter of the law, to detract in some degree from that equity which appeared to be on the side of the adversary; so also it will be of the greatest advantage to the man who is speaking in opposition to the letter of the law, to convert something of the exact letter of the law to his own side of the argument, or else to show that something has been expressed ambiguously. And afterwards, to take that portion of the doubtful expression which may serve his own purpose, and defend it; or else to introduce some definition of a word, and to bring over the meaning of that word which seems unfavourable to him to the advantage of his own cause; or else, from what is set down in the law to introduce something which is not set down by means of ratiocination, which we will speak of presently.
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§ 2.143 But in whatever matter, however little probable it may be, he defends himself by an appeal to the exact letter of the law, even when his case is full of equity, he will unavoidably gain a great advantage, because if he can withdraw from the cause of the opposite party that point on which it principally relies, he will mitigate and take off the effect of all its violence and energy. But all the rest of the common topics taken from the divisions of assumptive argument will suit each side of the question. It will also be suitable for him whose argument takes its stand on the letter of the law, to urge that laws ought to be looked at, not with reference to the advantage of that man who has violated them, but according to their own intrinsic value; and that nothing ought to be considered more precious than the laws. On the other side, the speaker will urge, that laws depend upon the intention of the framer of them, and upon the general advantage, not upon words; and also, how scandalous it is for equity to be overwhelmed by a heap of letters, and defended in vain by the intention of the man who drew up the law.
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§ 2.144 But from contrary laws a controversy arises, when two or more laws appear to be at variance with one another. In this manner:—There is a law, “That he who has slain a tyrant shall receive the reward of men who conquer at Olympia; and shall also ask whatever he pleases of the magistrate, and the magistrate shall grant it to him.” There is also another law—"When a tyrant is slain, the magistrate shall also put to death his five nearest relations." Alexander, who was the tyrant of Pherae, a city in Thessaly, was slain by his own wife, whose name was Thebe, at night, when he was in bed with her; she, as a reward, demands the liberty of her son whom she had by the tyrant. Some say that according to this law that son ought to be put to death. The matter is referred to a court of justice. Now in a case of this kind the same topics and the same rules will suit each side of the question; because each party is bound to establish his own law, and to invalidate the one contrary to it.
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§ 2.145 First of all, therefore, it is requisite to show the nature of the laws, by considering which law has reference to more important, that is to say, to more honourable and more necessary matters. From which it results, that if two or more, or ever so many laws cannot all be maintained, because they are at variance with one another, that one ought to be considered the most desirable to be maintained, which appears to have reference to the most important matters. Then comes the question also, which law was passed last; for the newest law is the most important. And also, which law enjoins anything, and which merely allows it; for that which is enjoined is necessary, that which is allowed is optional. Also one must consider by which law a penalty is appointed for the violation of it; or which has the heaviest penalty attached to it;
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§ 2.146 for that law must be the most carefully maintained which is sanctioned by the most severe penalties. Again, one must inquire which law enjoins, and which forbids anything; for it often happens that the law which forbids something appears by some exception as it were to amend the law which commands something. Then, too, it is right to consider which law comprehends the entire class of subjects to which it refers, and which embraces only a part of the question; which may be applied generally to many classes of questions, and which appears to have been framed to apply to some special subject. For that which has been drawn up with reference to some particular division of a subject, or for some special purpose, appears to come nearer to the subject under discussion, and to have more immediate connexion with the present action. Then arises the question, which is the thing which according to the law must be done immediately; which will admit of some delay or slackness in the execution. For it is right that that should be done first which must be done immediately.
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§ 2.147 In the next place, it is well to take pains that the law one is advocating shall appear to depend on its own precise language; and that the law with a contrary sense should appear to be introduced with a doubtful interpretation, or by some ratiocination or definition, in order that that law which is expressed in plain language may appear to be the more solemn and efficient. After that it will be well to add the meaning of the law which is on one's own side according to the strict letter of it; and also to explain the opposite law so as to make it appear to have another meaning, in order that, if possible, they may not seem to be inconsistent with one another. And, last of all, it will be a good thing, if the cause shall afford any opportunity for so doing, to take care that on our principles both the laws may seem to be upheld, but that on the principle contended for by our adversaries one of them must be put aside. It will be well also to consider all the common topics and those which the cause itself furnishes, and to take them from the most highly esteemed divisions of the subjects of expediency and honour, showing by means of amplification which law it is most desirable to adhere to.
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§ 2.148 From ratiocination there arises a controversy when, from what is written somewhere or other, one arrives at what is not written anywhere; in this way:—"If a man is mad, let those of his family and his next of kin have the regulation of himself and of his property." And there is another law—"In whatever manner a head of a family has made his will respecting his family and his property, so let it be." And another law—"If a head of a family dies intestate, his family and property shall belong to his relations and to his next of kin."
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§ 2.149 A certain man was convicted of having murdered his father. Immediately, because he was not able to escape, wooden shoes were put upon his feet, and his mouth was covered with a leathern bag, and bound fast, then he was led away to prison, that he might remain there while a bag was got ready for him to be put into and thrown into a river. In the meantime some of his friends bring tablets to the prison, and introduce witnesses also; they put down those men as his heirs whom he himself desires; the will is sealed; the man is afterwards executed. There is a dispute between those who are set down as his heirs in the will, and his next of kin about his inheritance. In this instance there is no positive law alleged which takes away the power of making a will from people who are in such a situation. But from other laws, both those which inflict a punishment of this character on a man guilty of such a crime, and those, too, which relate to a man's power of making a will, it is possible to come by means of ratiocination to a conclusion of this sort, that it is proper to inquire whether he had the power of making a will.
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§ 2.150 But we think that these and such as these are the common topics suitable to an argument of this description. In the first place, a panegyric upon, and a confirmation of that writing which you are producing. Then a comparison of the matter which is the subject of discussion, with that which is a settled case, in such a manner that the case which is under investigation may appear to resemble that about which there are settled and notorious rules. After that, one will express admiration, (by way of comparison), how it can happen that a man who admits that this is fair, can deny that other thing, which is either more equitable still, or which rests on exactly similar principles; then, too, one will contend that the reason why there is no precise law drawn up for such a case, is because, as there was one in existence applicable to the other case, the framer of that law thought that no one could possibly entertain a doubt in this case;
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§ 2.151 and afterwards it will be well to urge that there are many cases not provided for in many laws, which beyond all question were passed over merely because the rule as to them could be so easily collected out of the other cases which were provided for; and last of all, it is necessary to point out what the equity of the case requires, as is done in a plain judicial case. But the speaker who is arguing on the other side is bound to try and invalidate the comparison instituted, which he will do if he can show that that which is compared is different from that with which it is compared in kind, in nature, in effect, in importance, in time, in situation, in character, in the opinion entertained of it; if it is shown also in what class that which is adduced by way of comparison ought to stand, and in what rank that also ought to be considered, for the sake of which the other thing is mentioned. After that, it will be well to point out how one case differs from the other, so that it does not seem that any one ought to have the same opinion of both of them.
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§ 2.152 And if he himself also is able to have recourse to ratiocination, he must use the same ratiocination which has been already spoken of. If he cannot, then he will declare that it is not proper to consider anything except what is written; that all laws are put in danger if comparisons are once allowed to be instituted; that there is hardly anything which does not seem somewhat like something else; that when there are many circumstances wholly dissimilar, still there are separate laws for each individual case; and that all things can be proved to be like or unlike to each other. The common topics derived from ratiocination ought to arrive by conjecture from that which is written to that which is not written; and one may urge that no one can embrace every imaginable case in a written law, but that he frames a law best who takes care to make one thing understood from another.
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§ 2.153 One may urge, too, that in opposition to a ratiocination of this sort, conjecture is no better than a divination, and that it would be a sign of a very stupid framer of laws not to be able to provide for everything which he wished to. Definition is when a word is set down in a written document, whose exact meaning is inquired into, in this manner:—There is a law, “Whoever in a severe tempest desert their ship shall be deprived of all their property; the ship and the cargo shall belong to those men who remain by the ship.” Two men, when they were sailing on the open sea, and when the ship belonged to one of them and the cargo to another, noticed a shipwrecked man swimming and holding out his hands to them. Being moved with pity they directed the ship towards him, and took the man into their vessel.
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§ 2.154 A little afterwards the storm began to toss them also about very violently, to such a degree that the owner of the ship, who was also the pilot, got into a little boat, and from that he guided the ship as well as he could by the rope by which the boat was fastened to the ship, and so towed along; but the man to whom the cargo belonged threw himself on his sword in despair. On this the shipwrecked man took the helm and assisted the ship as far as he could. But after the waves went down and the tempest abated, the ship arrived in harbour. But the man who had fallen on his sword turned out to be but slightly wounded, and easily recovered of his wound. And then every one of these three men claimed the ship and cargo for his own. Every one of them relies on the letter of the law to support their claim, and a dispute arises as to the meaning of the words. For they seek to ascertain by definitions what is the meaning of the expressions “to abandon the ship,” “to stand by the ship,” and even what “the ship” itself is. And the question must be dealt with with reference to all the same topics as are employed in a statement of the case which turns upon a definition.
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§ 2.155 Now, having explained all those argumentations which are adapted to the judicial class of causes, we will proceed in regular order to give topics and rules for the deliberative and demonstrative class of arguments; not that there is any cause which is not at all times conversant with some statement of the case or other; but because there are nevertheless some topics peculiar to these causes, not separated from the statement of the case, but adapted to the objects which are more especially kept in view by these kinds of argumentation.
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§ 2.156 For it seems desirable that in the judicial kind the proper end is equity; that is to say, some division of honesty. But in the deliberative kind Aristotle thinks that the proper object is expediency; we ourselves, that it is expediency and honesty combined. In the demonstrative kind it is honesty only. Wherefore, in this kind of cause also, some kinds of argumentation will be handled in a common manner, and in similar ways to one another. Some will be discussed more separately with reference to their object, which is what we must always keep in view in every kind of speech. And we should have no objection to give an example of each kind of statement of the case, if we did not see that, as obscure things are made more plain by speaking of them, so also things which are plain are sometimes made more obscure by a speech. At present let us go on to precepts of deliberation.
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§ 2.157 Of matters to be aimed at there are three classes; and on the other hand there is a corresponding number of things to be avoided. For there is something which of its own intrinsic force draws us to itself, not catching us by any idea of emolument, but alluring us by its own dignity. Of this class are virtue, science, truth. And there is something else which seems desirable, not on account of its own excellence or nature, but on account of its advantage and of the utility to be derived from it—such as money. There are also some things formed of parts of these others in combination, which allure us and draw us after them by their own intrinsic character and dignity, and which also hold out some prospect of advantage to us, to induce us to seek it more eagerly, as friendship, and a fair reputation; and from these their opposites will easily be perceived, without our saying anything about them.
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§ 2.158 But in order that the principle may be explained in the more simple way, the rules which we have laid down shall be enumerated briefly. For those which belong to the first kind of discussion are called honourable things; those which belong to the second, are called useful things; but this third thing, because it contains some portion of what is honourable, and because the power of what is honourable is the more important part, is perceived to be altogether a compound kind, made up of a twofold division; still it derives its name from its better part, and is called honourable. From this it follows, that there are these parts in things which are desirable,—what is honourable, and what is useful. And these parts in things which are to be avoided,—what is dishonourable, and what is useless. Now to these two things there are two other important circumstances to be added,—necessity and affection: the one of which is considered with reference to force, the other with reference to circumstances and persons. Hereafter we will write more explicitly about each separately. At present we will explain first the principles of what is honourable.
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§ 2.159 That which either wholly or in some considerable portion of it is sought for its own sake, we call honourable: and as there are two divisions of it, one of which is simple and the other twofold, let us consider the simple one first. In that kind, then, virtue has embraced all things under one meaning and one name; for virtue is a habit of the mind, consistent with nature, and moderation, and reason. Wherefore, when we have become acquainted with all its divisions, it will be proper to consider the whole force of simple honesty. It has then four divisions—prudence, justice, fortitude, and temperance.
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§ 2.160 Prudence is the knowledge of things which are good, or bad, or neither good nor bad. Its parts are memory, intelligence, and foresight. Memory is that faculty by which the mind recovers the knowledge of things which have been. Intelligence is that by which it perceives what exists at present. Foresight is that by which anything is seen to be about to happen, before it does happen. Justice is a habit of the mind which attributes its proper dignity to everything, preserving a due regard to the general welfare. Its first principles proceed from nature. Subsequently some practices became established by universal custom, from a consideration of their utility; afterwards the fear of the laws and religion sanctioned proceedings which originated in nature, and had been approved of by custom.
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§ 2.161 Natural law is that which has not had its origin in the opinions of men, but has been implanted by some innate instinct, like religion, affection, gratitude, revenge, attention to one's superiors, truth. Religion is that which causes men to pay attention to, and to respect with fixed ceremonies, a certain superior nature which men call divine nature. Affection is that feeling under the influence of which kindness and careful attention is paid to those who are united to us by ties of blood, or who are devoted to the service of their country. Gratitude is that feeling in which the recollection of friendship, and of the services which we have received from another, and the inclination to requite those services, is contained. Revenge is that disposition by which violence and injury, and altogether everything which can be any injury to us, is repelled by defending oneself from it, or by avenging it. Attention is that feeling by which men obey when they think those who are eminent for worth or dignity, worthy of some special respect and honour. Truth is that by which those things which are, or which have been previously, or which are about to happen, are spoken of without any alteration.
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§ 2.162 Conventional law is a principle which has either derived its origin in a slight degree from nature, and then has been strengthened by habit, like religion; or, if we see any one of those things which we have already mentioned as proceeding from nature strengthened by habit; or, if there is anything to which antiquity has given the force of custom with the approbation of everybody: such as covenants, equity, cases already decided. A covenant is that which is agreed upon between two parties; equity is that which is equally just for every one; a case previously decided is one which has been settled by the authoritative decision of some person or persons entitled to pronounce it. Legal right is that which is contained in that written form which is delivered to the people to be observed by them.
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§ 2.163 Fortitude is a deliberate encountering of danger and enduring of labour. Its parts are magnificence, confidence, patience, and perseverance. Magnificence is the consideration and management of important and sublime matters with a certain wide seeing and splendid determination of mind. Confidence is that feeling by which the mind embarks in great and honourable courses with a sure hope and trust in itself. Patience is a voluntary and sustained endurance, for the sake of what is honourable or advantageous, of difficult and painful labours.
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§ 2.164 Perseverance is a steady and lasting persistence in a well-considered principle. Temperance is the form and well-regulated dominion of reason over lust and other improper affections of the mind. Its parts are continence, clemency, and modesty. Continence is that by which cupidity is kept down under the superior influence of wisdom. Clemency is that by which the violence of the mind, when causelessly excited to entertain hatred against some one else, is restrained by courtesy. Modesty is that feeling by which honourable shame acquires a valuable and lasting authority. And all these things are to be sought for themselves, even if no advantage is to be acquired by them. And it neither concerns our present purpose to prove this, nor is it agreeable to our object of being concise in laying down our rules.
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§ 2.165 But the things which are to be avoided for their own sake, are not those only which are the opposites to these; as indolence is to courage, and injustice to justice; but those also which appear to be near to and related to them, but which, in reality, are very far removed from them. As, for instance, diffidence is the opposite to confidence, and is therefore a vice; audacity is not the opposite of confidence, but is near it and akin to it, and, nevertheless, is also a vice. And in this manner there will be found a vice akin to every virtue, and either already known by some particular name—as audacity, which is akin to confidence; pertinacity, which is bordering on perseverance; superstition, which is very near religion,—or in some cases it has no fixed name. And all these things, as being the opposites of what is good, we class among things to be avoided. And enough has now been said respecting that class of honourable things which is sought in every part of it for itself alone.
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§ 2.166 At present it appears desirable to speak of that in which advantage is combined with honour, and which still we style simply honourable. There are many things, then, which allure us both by their dignity and also by the advantage which may be derived from them: such as glory, dignity, influence, friendship. Glory is the fact of a person's being repeatedly spoken of to his praise; dignity is the honourable authority of a person, combined with attention and honour and worthy respect paid to him. Influence is a great abundance of power or majesty, or of any sort of resource. Friendship is a desire to do service to any one for the sake of the person himself to whom one is attached, combined with a corresponding inclination on his part towards oneself. At present, because we are speaking of civil causes, we add the consideration of advantage to friendship, so that it appears a thing to be sought for the sake of the advantage also: wishing to prevent those men from blaming us who think that we are including every kind of friendship in our definition.
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§ 2.167 But although there are some people who think that friendship is only to be desired on account of the advantage to be derived from it; some think it is to be desired for itself alone; and some, that it is to be desired both for its own sake and for the sake of the advantage to be derived from it. And which of these statements is the most true, there will be another time for considering. At present it may be laid down, as far as the orator is concerned, that friendship is a thing to be desired on both accounts.
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§ 2.168 But the consideration of the different kinds of friendship, (since they are partly formed on religious considerations, and partly not; and because some friendships are old, and some new; and because some originated in kindness shown by our friends to us, and some in kindness shown by ourselves to them; and because some are more advantageous, and others less,) must have reference partly to the dignity of the causes in which it originates, partly to the occasion when it arises, and also to the services done, the religious motives entertained, and its antiquity. 56 But the advantages consist either in the thing itself, or in extraneous circumstances; of which, however, by far the greater portion is referable to personal advantage; as there are some things in the republic which, so to say, refer to the person of the state,—as lands, harbours, money, fleets, sailors, soldiers, allies; by all which things states preserve their safety and their liberty. There are other things also which make a thing more noble looking, and which still are less necessary; as the splendid decorating and enlarging of a city, or an extraordinary amount of wealth, or a great number of friendships and alliances.
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§ 2.169 And the effect of all these things is not merely to make states safe and free from injury, but also noble and powerful. So that there appears to be two divisions of usefulness,—safety and power. Safety is the secure and unimpaired preservation of a sound state. Power is a possession of things suitable to preserving what is one's own, and to acquiring what belongs to another. And in all those things which have been already mentioned, it is proper to consider what is difficult to be done, and what can be done with ease. We call that a thing easy to be done, which can be done without great labour, or expense, or annoyance, or perhaps without any labour, expense, or annoyance at all, and in the shortest possible time. But that we call difficult to be done which, although it requires labour, expense, trouble and time, and has every possible characteristic of difficulty about it, or, at all events, the most numerous and most important ones, still, when these difficulties are encountered, can be completed and brought to an end.
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§ 2.170 Since, then, we have now discussed what is honourable and what is useful, it remains for us to say a little of those things which we have said are attached to these other things; namely, affection and necessity. I think, then, that necessity means that which cannot be resisted by any power; that which cannot be softened nor altered. And that this may be made more plain, let us examine into the meaning of it by the light of examples, so as to see what its character and how great its power is. “It is necessary that anything made of wood must be capable of being burnt with fire. It is necessary that a mortal body should at some time or other die.” And it is so necessary, that that power of necessity which we were just now describing requires it; which cannot by any force whatever be either resisted, or weakened, or altered. Necessities of this kind, when they occur in oratory, are properly called necessities; but if any difficult circumstances arise, then we shall consider in the previous examination whether it, the thing in question, be possible to be done.
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§ 2.171 And it seems to me, that I perceive that there are some kinds of necessity which admit of additions, and some which are simple and perfect in themselves. For we say in very different senses:—"It is necessary for the people of Casilinum to surrender themselves to Hannibal;" and, “It is necessary that Casilinum should come into the power of Hannibal.” In the one case, that is, in the first case, there is this addition to the proposition—"Unless they prefer perishing by hunger." For if they prefer that, then it is not necessary for them to surrender. But in the latter proposition such an addition has no place; because whether the people of Casilinum choose to surrender, or prefer enduring hunger and perishing in that manner, still it is necessary that Casilinum must come into the power of Hannibal. What then can be effected by this division of necessity? I might almost say, a great deal, when the topic of necessity appears such as may be easily introduced. For when the necessity is a simple one, there will be no reason for our making long speeches, as we shall not be able by any means to weaken it;
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§ 2.172 but when a thing is only necessary provided we wish to avoid or to obtain something, then it will be necessary to state what advantage or what honour is contained in that addition. For if you will take notice, while inquiring what this contributes to the advantage of the state, you will find that there is nothing which it is necessary to do, except for the sake of some cause which we call the adjunct. And, in like manner, you will find that there are many circumstances of necessity to which a similar addition cannot be made; of such sort are these:—"It is necessary that mortal men should die;" without any addition:—"It is not necessary for men to take food;" with this exception,—"Unless they have an objection to dying of hunger."
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§ 2.173 Therefore, as I said before, it will be always proper to take into consideration the character of that exception which is added to the original proposition. For it will at all times have this influence, that either the necessity must be explained with reference to what is honourable, in this manner:—"It is necessary, if we wish to live with honour;" or with reference to safety, in this manner:—"It is necessary, if we wish to be safe;" or with reference to convenience, in this manner:—"It is necessary, if we are desirous to live without annoyance."
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§ 2.174 And the greatest necessity of all appears to be that which arises from what is honourable; the next to it is that which arises from considerations of safety; the third and least important is that which has ideas of convenience involved in it. But this last can never be put in comparison with the two former. But it is often indispensable to compare these together; so that although honour is more precious than safety, there is still room to deliberate which one is to consult in the greatest degree. And as to this point, it appears possible to give a settled rule which may be of lasting application. For in whatever circumstances it can happen by any possibility that while we are consulting our safety, that slight diminution of honesty which is caused by our conduct may be hereafter repaired by virtue and industry, then it seems proper to have a regard for our safety. But when that does not appear possible, then we must think of nothing but what is honourable. And so in a case of that sort when we appear to be consulting our safety, we shall be able to say with truth that we are also keeping our eyes fixed on what is honourable, since without safety we can never attain to that end. And in these circumstances it will be desirable to yield to another, or to put oneself in another's place, or to keep quiet at present and wait for another opportunity. But when we are considering convenience, it is necessary to consider this point also,—whether the cause, as far as it has reference to usefulness, appears of sufficient importance to justify us in taking anything from splendour or honour.
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§ 2.175 And while speaking on this topic, that appears to me to be the main thing, that we should inquire what that is which, whether we are desirous of obtaining or avoiding it, is something necessary; that is to say, what is the character of the addition; in order that, according as the matter is found to be, so we may exert ourselves, and consider the most important circumstances as being also the most necessary.
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§ 2.176 Affection is a certain way of looking at circumstances either with reference to the time, or to the result, or management of affairs, or to the desires of men, so that they no longer appear to be such as they were considered previously, or as they are generally in the habit of being considered. “It appears a base thing to go over to the enemy; but not with the view which Ulysses had when he went over. And it is a useless act to throw money into the sea; but not with the design which Aristippus had when he did so.” There are, therefore, some circumstances which may be estimated with reference to the time at which and the intention with which they are done; and not according to their own intrinsic nature. In all which cases we must consider what the times require, or what is worthy of the persons concerned; and we must not think merely what is done, but with what intention, with what companions, and at what time, it is done. And from these divisions of the subject, we think that topics ought to be taken for delivering one's opinion.
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§ 2.177 But praise and blame must be derived from those topics which can be employed with respect to persons, and which we have already discussed. But if any one wishes to consider them in a more separate manner, he may divide them into the intention, and the person of the doer, and extraneous circumstances. The virtue of the mind is that concerning the parts of which we have lately spoken; the virtues of the body are health, dignity, strength, swiftness. Extraneous circumstances are honour, money, relationship, family, friends, country, power, and other things which are understood to be of a similar kind. And in all these, that which is of universal validity ought to prevail here; and the opposites will be easily understood as to their description and character.
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§ 2.178 But in praising and blaming, it will be desirable to consider not so much the personal character of, or the extraneous circumstances affecting the person of whom one is speaking, as how he has availed himself of his advantages. For to praise his good fortune is folly, and to blame it is arrogance; but the praise of a man's natural disposition is honourable, and the blame of it is a serious thing. Now, since the principles of argumentation in every kind of cause have been set forth, it appears that enough has been said about invention, which is the first and most important part of rhetoric. Wherefore, since one portion of my work has been brought down to its end from the former book; and since this book has already run to a great length, what remains shall be discussed in subsequent books. [Books 3,4 not preserved].

Via ToposText (topostext.org), a project of the Aikaterini Laskaridis Foundation created by Brady Kiesling. Translated by Charles Duke Yonge (1812-1891). Composed ca. 45 BCE. Licence: public domain. Source.