Book: The Orations of Marcus Tullius Cicero, Volume 4

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But the orator will weaken the suspicions arising from the
ratiocination, if he shall say either that the advantage intimated had
no existence, or a very slight one, or that it was a greater one to
others, or that it was no greater advantage to himself than to others,
or that it was a greater disadvantage than advantage to himself.
So that the magnitude of the advantage which is said to have been
desired, was not to be compared with the disadvantage which was really
sustained, or with the danger which was incurred. And all those topics
will be handled in the same manner in speaking of the avoiding of
disadvantage.

But if the prosecutor has said that the man on his trial was pursuing
what appeared to him to be an advantage, or was avoiding that which
appeared to him to be a disadvantage, even though he was mistaken in
that opinion, then the advocate for the defence must show that no one
can be so foolish as to be ignorant of the truth in such an affair.
And if that be granted, then the other position cannot be granted,
that the man ever doubted at all what the case was, but that he,
without the least hesitation, considered what was false as false,
and what was true as true. But if he doubted, then it was a proof of
absolute insanity for a man under the influence of a doubtful hope to
incur a certain danger.

But as the accuser when he is seeking to remove the guilt from others
must use the topics proper to an advocate for the defence; so the man
on his trial must use those topics which have been allotted to an
accuser, when he wishes to transfer an accusation from his own
shoulders to those of others.

IX. But conjectures will be derived from the person, if those things
which have been attributed to persons are diligently considered, all
of which we have mentioned in the first book; for sometimes some
suspicion arises from the name. But when we say the name, we mean also
the surname. For the question is about the particular and peculiar
name of a man, as if we were to say that a man is called Caldus
because he is a man of a hasty and sudden disposition; or that
ignorant Greeks have been deceived by men being called Clodius, or
Caecilius, or Marcus.

And we may also derive some suspicious circumstances from nature; for
all these questions, whether it is a man or a woman, whether he is of
this state or that one, of what ancestors a man is descended, who are
his relations, what is his age, what is his disposition, what bodily
strength, or figure, or constitution he has, which are all portions
of a man's nature, have much influence in leading men to form
conjectures.

Many suspicions also are engendered by men's way of life, when the
inquiry is how, and by whom, and among whom a man was brought up and
educated, and with whom he associates, and what system and habits of
domestic life he is devoted to.

Moreover, argumentation often arises from fortune; when we consider
whether a man is a slave or a free man, rich or poor, noble or
ignoble, prosperous or unfortunate; whether he now is, or has been,
or is likely to be a private individual or a magistrate; or, in fact,
when any one of those circumstances is sought to be ascertained which
are attributable to fortune. But as habit consists in some perfect
and consistent formation of mind or body, of which kind are virtue,
knowledge, and their contraries; the fact itself, when the whole
circumstances are stated, will show whether this topic affords any
ground for suspicion. For the consideration of the state of a
man's mind is apt to give good grounds for conjecture, as of his
affectionate or passionate disposition, or of any annoyance to which
he has been exposed; because the power of all such feelings and
circumstances is well understood, and what results ensue after any one
of them is very easy to be known.

But since study is an assiduous and earnest application of the mind
to any particular object with intense desire, that argument which the
case itself requires will easily be deduced from it. And again,
some suspicion will be able to be inferred from the intention;
for intention is a deliberate determination of doing or not doing
something. And after this it will be easy to see with respect to
facts, and events, and speeches, which are divided into three separate
times, whether they contribute anything to confirming the conjectures
already formed in the way of suspicion.

X. And those things indeed are attributed to persons, which when they
are all collected together in one place, it will be the business of
the accuser to use them as inducing a disapprobation of the person;
for the fact itself has but little force unless the disposition of the
man who is accused can be brought under such suspicion as to appear
not to be inconsistent with such a fault. For although there is no
great advantage in expressing disapprobation of any one's disposition,
when there is no cause why he should have done wrong, still it is but
a trifling thing that there should be a motive for an offence, if the
man's disposition is proved to be inclined to no line of conduct which
is at all discreditable. Therefore the accuser ought to bring into
discredit the life of the man whom he is accusing, by reference to
his previous actions, and to show whether he has ever been previously
convicted of a similar offence. And if he cannot show that, he must
show whether he has ever incurred the suspicion of any similar guilt;
and especially, if possible, that he has committed some offence or
other of some kind under the influence of some similar motive to this
which is in existence here, in some similar case, or in an equally
important case, or in one more important, or in one less important.
As, if with respect to a man who he says has been induced by money to
act in such and such a manner, he were able to show that any other
action of his in any case had been prompted by avarice.

And again it will be desirable in every cause to mention the nature,
or the manner of life, or the pursuits, or the fortune, or some one of
those circumstances which are attributed to persons, in connexion with
that cause which the speaker says was the motive which induced the man
on his trial to do wrong; and also, if one cannot impute anything to
him in respect of an exactly corresponding class of faults, to bring
the disposition of one's adversary into discredit by reference to some
very dissimilar class. As, if you were to accuse him of having done
so and so, because he was instigated by avarice; and yet, if you are
unable to show that the man whom you accuse is avaricious, you must
show that other vices are not wholly foreign to his nature, and that
on that account it is no great wonder if a man who in any affair has
behaved basely, or covetously, or petulantly, should have erred in
this business also. For in proportion as you can detract from
the honesty and authority of the man who is accused, in the same
proportion has the force of the whole defence been weakened.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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