Book: The Orations of Marcus Tullius Cicero, Volume 4

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In the next place, it will be desirable to explain that comparative
kind of judicial decision as if it were a deliberative cause and
then afterwards to discuss it by the light thrown on it by rules for
deliberation. For let this be the question for judicial decision which
we have already mentioned--"As all the soldiers would have been lost
if they had not come to this agreement, was it better for the soldiers
to be lost, or to come to this agreement?" It will be desirable that
this should be dealt with with reference to the topics concerning
deliberation, as if the matter were to come to some consultation.

XXVI. But the advocate for the defence will take the topics in
accordance with which other statements of the case are made by the
accuser, and will prepare his own defence from those topics with
reference to the same statements. But all other topics which belong to
the comparison, he will deal with in the contrary manner.

The common topics will be these,--the accuser will press his charges
against the man who confesses some discreditable or pernicious action,
or both, but still seeks to make some defence, and will allege
the mischievous or discreditable nature of his conduct with great
indignation. The advocate for the defence will insist upon it, that no
action ought to be considered pernicious or discreditable, or, on the
other hand, advantageous or creditable, unless it is ascertained with
what intention, at what time, and on what account it was done. And
this topic is so common, that if it is well handled in this cause it
is likely to be of great weight in convincing the hearers. And there
is another topic, by means of which the magnitude of the service done
is demonstrated with very great amplification, by reference to the
usefulness, or honourableness, or necessity of the action. And there
is a third topic, by means of which the matter which is expressed in
words is placed before the eyes of those men who are the hearers, so
that they think that they themselves also would have done the same
things, if the same circumstances and the same cause for doing so had
happened to them at the same time.

The retorting of a charge takes place, when the accused person,
having confessed that of which he is accused, says that he did it
justifiably, being induced by the sin committed against him by the
other party. As in this case--"Horatius, when he had slain the three
Curiatii and lost his two brothers, returned home victorious. He saw
his sister not troubled about the death of her brothers, but at the
same time calling on the name of Curiatius, who had been betrothed to
her, with groans and lamentation. Being indignant, he slew the maid".
He is prosecuted.

The charge is, "You slew your sister wrongfully". The refutation is "I
slew her lawfully". The question is, "Whether he slew her lawfully".
The reason is, "Yes, for she was lamenting the death of enemies, and
was indifferent to that of her brothers, she was grieved that I and
the Roman people were victorious". The argument to invalidate this
reason is, "Still she ought not to have been put to death by her
brother without being convicted". On this the question for the
decision of the judges is, "Whether when Horatia was showing her
indifference to the death of her brothers, and lamenting that of the
enemy, and not rejoicing at the victory of her brother and of the
Roman people, she deserved to be put to death by her brother without
being condemned".

XXVII For this kind of cause, in the first place, whatever is given
out of the other statements of cases ought to be taken, as has been
already enjoined when speaking of comparison. After that, if there is
any opportunity of doing so, some statement of the case ought to be
employed by which he to whom the crime is imputed may be defended. In
the next place, we ought to argue that the fault which the accused
person is imputing to another, is a lighter one than that which he
himself committed; in the next place, we ought to employ some portion
of a demurrer, and to show by whom, and through whose agency, and
how, and when that matter ought to have been tried, or adjudged, or
decided. And at the same time, we ought to show that it was not proper
that punishment should have been inflicted before any judgment was
pronounced. Then we must also point out the laws and the course of
judicial proceeding by which that offence which the accused person
punished of his own accord, might have been chastised according to
precedent, and by the regular course of justice. In the next place, it
will be right to deny that it is proper to listen to the charge which
is brought by the accused person against his victim, when he who
brings it did not choose to submit it to the decision of the judges,
and it may be urged that one ought to consider that on which no
decision has been pronounced, as if it had not been done, and after
that to point out the impudence of those men who are now before
the judges accusing the man whom they themselves condemned without
consulting the judges, and are now bringing him to trial on whom they
have already inflicted punishment. After this we may say that it is
bringing irregularity into the courts of justice, and that the judges
will be advancing further than their power authorizes them, if they
pronounce judgment at the same time in the case of the accused person,
and of him whom the accused person impeaches. And in the next place,
we may point out if this rule is established, and if men avenge one
offence by another offence, and one injury by another injury, what
vast inconvenience will ensue from such conduct, and that if the
person who is now the prosecutor had chosen to do so too, there would
have been no need of this trial at all, and that if every one else
were to do so, there would be an end of all courts of justice.

After that it may be pointed out, that even if the maiden who is now
accused by him of this crime had been convicted, he would not himself
have had any right to inflict punishment on her, so that it is a
shameful thing that the man who would have had no right to punish her,
even if she had been convicted, should have punished her without her
being even brought to trial at all. And then the accused person may
be called upon to produce the law which he says justifies his having
acted in such a manner.

After that, as we have enjoined when speaking of comparison, that that
which is mentioned in comparison should be disparaged by the accuser
as much as possible, so, too, in this kind of argument, it will be
advantageous to compare the fault of the party on whom the accusation
is retorted with the crime of the accused person who justified his
action as having been lawfully done. And after that it is necessary to
point out that that is not an action of such a sort, that on account
of it this other crime ought to have been committed. The last point,
as in the case of comparison, is the assumption of a judicial
decision, and the dilating upon it in the way of amplification, in
accordance with the rules given respecting deliberation.

XXVIII But the advocate for the defence will invalidate what is urged
by means of other statements from those topics which have already been
given. But the demurrer itself he will prove first of all, by dwelling
on the guilt and audacity of the man to whom he imputes the crime, and
by bringing it before the eyes of the judges with as much indignation
as possible if the case admits of it, and also with vehement
complaint, and afterwards by proving that the accused person chastised
the offence more lightly than the offender deserved, by comparing the
punishment inflicted with the injury done. In the next place, it will
be desirable to invalidate by opposite arguments those topics which
are handled by the prosecutor in such a way that they are capable of
being refuted and retorted, of which kind are the three last topics
which I have mentioned. But that most vehement attack of the
prosecutors, by which they attempt to prove that irregularity will be
introduced into all the courts of justice if power is given to any man
of inflicting punishment on a person who has not been convicted, will
have its force much weakened, first of all, if the injury be shown to
be such as appears intolerable not only to a good man but absolutely
to any freeman, and in the next place to be so manifest that it could
not have been denied even by the person who had done it, and moreover,
of such a kind that the person who did chastise it was the person
who above all others was bound to chastise it. So that it was not so
proper nor so honourable for that matter to be brought before a court
of justice as for it to be chastised in that manner in which, and by
that person by whom it was chastised, and lastly, that the case was
so notorious that there was no occasion whatever for a judicial
investigation into it. And here it will be proper to show, by
arguments and by other similar means, that there are very many things
so atrocious and so notorious, that it is not only not necessary, but
that it is not even desirable to wait for the slow proceedings of a
judicial trial.

There is a common topic for an accuser to employ against a person,
who, when he cannot deny the fact of which he is accused, still
derives some hope from his attempt to show that irregularity will be
introduced into all courts of justice by such proceedings. And here
there will come in the demonstration of the usefulness of judicial
proceedings, and the complaint of the misfortune of that person who
has been punished without being condemned; and the indignation to
be expressed against the audacity and cruelty of the man who has
inflicted the punishment. There is also a topic for the advocate for
the defence to employ, in complaining of the audacity of the person
whom he chastised; and in urging that the case ought to be judged
of, not by the name of the action itself, but with reference to the
intention of the person who committed it, and the cause for which, and
the time at which it was committed. And in pointing out what great
mischief will ensue either from the injurious conduct, or the
wickedness of some one, unless such excessive and undisguised audacity
were chastised by him whose reputation, or parents, or children, or
something else which either necessarily is, or at least ought to be
dear to every one, is affected, by such conduct.

XXIX. The transference of an accusation takes place when the
accusation of that crime which is imputed to one by the opposite party
is transferred to some other person or circumstance. And that is done
in two ways. For sometimes the motive itself is transferred,
and sometimes the act. We may employ this as an instance of the
transference of the motive:--"The Rhodians sent some men as
ambassadors to Athens. The quaestors did not give the ambassadors the
money for their expenses which they ought to have given them. The
ambassadors consequently did not go. They are impeached." The charge
brought against them is, "They ought to have gone." The denial is,
"They ought not." The question is, "Whether they ought." The reason
alleged is, "Because the money for their expenses, which is usually
given to ambassadors from the public treasury, was not given to them
by the quaestor." The argument brought to invalidate that reason is,
"Still you ought to have discharged the duty which was entrusted to
you by the public authority." The question for the decision of the
judges is, "Whether, as the money which ought to have been supplied
from the public treasury was not furnished to those men who were
appointed ambassadors, they were nevertheless bound to discharge the
duties of their embassy." In this class of inquiry, as in all the
other kinds, it will be desirable to see if anything can be assumed,
either from a conjectural statement of the case, or from any other
kind of statement. And after that, many arguments can be brought to
bear on this question, both from comparison, and from the transference
of the guilt to other parties.

But the prosecutor will, in the first place, if he can, defend the man
through whose fault the accused person says that that action was done;
and if he cannot, he will declare that the fault of the other party
has nothing to do with this trial, but only the fault of this man whom
he himself is accusing. Afterwards he will say that it is proper for
every one to consider only what is his own duty; and that if the one
party did wrong, that was no reason for the other doing wrong too. And
in the next place, that if the other man has committed a fault, he
ought to be accused separately as this man is, and that the accusation
of the one is not to be mixed up with the defence of the other.

But when the advocate for the defence has dealt with the other
arguments, if any arise out of other statements of the case, he will
argue in this way with reference to the transference of the charge to
other parties. In the first place, he will point out to whose fault
it was owing that the thing happened; and in the next place, as it
happened in consequence of the fault of some one else, he will point
out that he either could not or ought not to have done what the
prosecutor says he ought: that he could not, will be considered with
reference to the particulars of expediency, in which the force of
necessity is involved; that he ought not, with reference to the
honourableness of the proceeding. We will consider each part more
minutely when talking of the deliberative kind of argument. Then
he will say, that everything was done by the accused person which
depended on his own power; that less was done than ought to have been,
was the consequence of the fault of another person. After that,
in pointing out the criminality of that other person, it will be
requisite to show how great the good will and zeal of the accused
person himself was. And that must be established by proofs of this
sort--by his diligence in all the rest of the affair, by his previous
actions, or by his previous expressions. And it may be well to show
that it would have been advantageous to the man himself to have done
this, and disadvantageous not to have done it, and that to have done
it would have been more in accordance with the rest of his life, than
the not having done it, which, was owing to the fault of the other
party.

XXX But if the criminality is not to be transferred to some particular
person, but to some circumstance, as in this very case--"If the
quaestor had been dead, and on that account the money had not been
given to the ambassadors," then, as the accusation of the other party,
and the denial of the fault is removed, it will be desirable to employ
the other topics in a similar manner, and to assume whatever is
suitable to one's purpose from the divisions of admitted facts. But
common topics are usually nearly the same to both parties, and then,
after the previous topics are taken for granted, will suit either to
the greatest certainty. The accuser will use the topic of indignation
at the fact, the defender, when the guilt belongs to another and does
not attach to himself, will urge that he does not deserve to have any
punishment inflicted on him.

But the removal of the criminality from oneself is effected when the
accused person declares, that what is attributed to him as a crime
did not affect him or his duty, and asserts that if there was any
criminality in it, it ought not to be attributed to him. That kind of
dispute is of this sort--"In the treaty which was formerly made with
the Samnites, a certain young man of noble birth held the pig which
was to be sacrificed, by the command of the general. But when the
treaty was disavowed by the senate, and the general surrendered to the
Samnites, one of the senators asserted that the man who held the pig
ought also to be given up." The charge is, "He ought to be given up."
The denial is, "He ought not." The question is, "Whether he ought or
not." The reason is, "For it was no particular duty of mine, nor did
it depend on my power, being as young as I was, and only a private
individual, and while the general was present with the supreme
authority and command, to take care that the treaty was solemnised
with all the regular formalities." The argument to invalidate this
reason is, "But since you became an accomplice in a most infamous
treaty, sanctioned with the most formal solemnities of religion, you
ought to be surrendered." The question for the judges to decide is
"Whether, since a man who had no official authority was present, by
the command of the general, aiding and abetting in the adopting of
the treaty, and in that important religious ceremony, he ought to be
surrendered to the enemy or not." This kind of question is so far
different from the previous one, because in that the accused person
admits that he ought to have done what the prosecutor says ought
to have been done, but he attributes the cause to some particular
circumstance or person, which was a hindrance to his own intention,
without having recourse to any admission. For that has greater force,
which will be understood presently. But in this case a man ought
not to accuse the opposite party, nor to attempt to transfer the
criminality to another, but he ought to show that that has not and
never has had any reference whatever to himself, either in respect
of power or duty. And in this kind of cause there is this new
circumstance, that the prosecutor often works up a fresh accusation
out of the topics employed, to remove the guilt from the accused
person. As for instance,--"If any one accuses a man who, while he was
praetor, summoned the people to take up arms for an expedition, at
a time when the consuls were in the city." For as in the previous
instance the accused person showed that the matter in question had
no connexion with his duty or his power, so in this case also, the
prosecutor himself, by removing the action done from the duty and
power of the person who is put on his trial, confirms the accusation
by this very argument. And in this case it will be proper for each
party to examine, by means of all the divisions of honour and
expediency, by examples, and tokens, and by arguing what is the duty,
or right, or power of each individual, and whether he had that right,
and duty, and power which is the subject of the present discussion, or
not. But it will be desirable for common topics to be assumed from the
case itself, if there is any room in it for expressions of indignation
or complaint.

XXI. The admission of the fact takes place, when the accused person
does not justify the fact itself, but demands to be pardoned for it.
And the parts of this division of the case are two: purgation and
deprecation. Purgation is that by which (not the action, but) the
intention of the person who is accused, is defended. That has three
subdivisions,--ignorance, accident, necessity.

Ignorance is when the person who is accused declares that he did not
know something or other. As, "There was a law in a certain nation
that no one should sacrifice a calf to Diana. Some sailors, when in a
terrible tempest they were being tossed about in the open sea, made a
vow that if they reached the harbour which they were in sight of, they
would sacrifice a calf to the god who presided over that place. Being
ignorant of the law, when they landed, they sacrificed a calf." They
are prosecuted. The accusation is, "You sacrificed a calf to a god to
whom it was unlawful to sacrifice a calf." The denial consists in the
admission which has been already stated. The reason is, "I was not
aware that it was unlawful." The argument brought to invalidate that
reason is, "Nevertheless, since you have done what was not lawful, you
are according to the law deserving of punishment." The question for
the decision of the judge is, "Whether, as he did what he ought not to
have done, and was not aware that he ought not to have done so, he is
worthy of punishment or not."

But accident is introduced into the admission when it is proved that
some power of fortune interfered with his intention; as in this
case:--"There was a law among the Lacedaemonians, that if the
contractor failed to supply victims for a certain sacrifice, he should
be accounted guilty of a capital offence; and accordingly, the man who
had contracted to supply them, when the day of the sacrifice was at
hand, began to drive in cattle from the country into the city. It
happened on a sudden that the river Eurotus, which flows by Lacedaemon,
was raised by some violent storms, and became so great and furious
that the victims could not by any possibility be conveyed across. The
contractor, for the sake of showing his own willingness, placed all
the victims on the bank of the river, in order that every one on
the other side of the river might be able to see them. But though,
everyone was aware that it was the unexpected rise of the river
which hindered him from giving effect to his zeal, still some people
prosecuted him on the capital charge." The charge was, "The victims
which you were bound to furnish for the sacrifice were not furnished."
The reply was an admission of the fact. The reason alleged was, "For
the river rose on a sudden, and on that account it was impossible to
convey them across." The argument used to invalidate that reason
was, "Nevertheless, since what the law enjoins was not done, you are
deserving of punishment." The question for the decision of the judges
was, "Whether, as in that respect the contractor did not comply with
the law, being prevented by the unexpected rise of the river
which hindered his giving effect to his zeal, he is deserving of
punishment."

XXXII. But the plea of necessity is introduced when the accused person
is defended as having done what he is accused of having done under
the influence of compulsion. In this way:--"There is a law among the
Rhodians, that if any vessel with a beak is caught in their harbour,
it shall be confiscated. There was a violent storm at sea; the
violence of the winds compelled a vessel, against the will of her
crew, to take refuge in the harbour of the Rhodians. On this the
quaestor claims the vessel for the people. The captain of the ship
declared that it was not just that it should be confiscated." The
charge is, "A ship with a beak was caught in the harbour." The reply
is an admission of the fact. The reason given is, "We were driven
into the harbour by violence and necessity." The argument brought to
invalidate that reason is, "Nevertheless, according to the law that
ship ought to become the property of the people." The question for the
decision of the judge is, "Whether, as the law confiscates every ship
with a beak which is found in the harbour, and as this ship, in spite
of the endeavours of her crew, was driven into the harbour by the
violence of the tempest, it ought to be confiscated."

We have collected these examples of these three kinds of cases into
one place, because a similar rule for the arguments required for these
prevails in all of them. For in all of them, in the first place, it
is desirable, if the case itself affords any opportunity of doing so,
that a conjecture should be introduced by the accuser, in order that
that which it will be stated was not done intentionally, may be
demonstrated by some suspicious circumstances, to have been done
intentionally. In the next place, it will be well to introduce a
definition of necessity, or of accident, or of ignorance, and to add
instances to that definition, in which ignorance, or accident, or
necessity appear to have operated, and to distinguish between such
instances and the allegations put forward by the accused person, (that
is to say, to show that there is no resemblance between them,) because
this was a lighter or an easier matter, or one which did not admit of
any one's being ignorant respecting it, or one which gave no room for
accident or necessity. After that it must be shown that it might have
been avoided, and, that the accused person might have prevented it if
he had done this thing, or that thing, or that he might have guarded
against being forced to act in such a manner. And it is desirable to
prove by definitions that this conduct of his ought not to be called
imprudence, or accident, or necessity, but indolence, indifference, or
fatuity.

And if any necessity alleged appears to have in it anything
discreditable, it will be desirable for the opponent, by a chain of
common topics, to prove that it would have been better to suffer
anything, or even to die, rather than to submit to a necessity of the
sort. And then, from these topics, which have been already discussed
when we spoke of the question of fact, it will be desirable to inquire
into the nature of law and equity, and, as if we were dealing with
an absolute juridical question, to consider this point by itself
separately from all other points. And in this place, if there should
be an opportunity, it will be desirable to employ instances in which
there can be no room for any similar excuse, and also to institute a
comparison, showing that there would have been more reason to allow it
in them, and by reference to the divisions of deliberation, it may be
shown that it is admitted that that action which was committed by the
adversary is confessed to have been discreditable and useless, that
it is a matter of great importance, and one likely to cause great
mischief, if such conduct is overlooked by those who have authority to
punish it.

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