Book: The Orations of Marcus Tullius Cicero, Volume 4

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XXXIII. But the advocate for the defence will be able to convert all
these arguments, and then to use them for his own purposes. And
he will especially dwell on the defence of his intentions, and in
exaggerating the importance of that which was an obstacle to his
intentions, and he will show that he could not have done more than he
did do, and he will urge that in all things the will of the doer ought
to be regarded, and that it is quite impossible that he should be
justly convicted of not being free from guilt, and that under his name
the common powerlessness of mankind is sought to be convicted. Then,
too, he will say that nothing can be more scandalous than for a man
who is free from guilt, not also to be free from punishment. But the
common topics for the prosecutor to employ are these, one resting on
the confession of the accused person, and the other pointing out what
great licence for the violation of the law will follow, if it is once
laid down that the thing to be inquired into is not the action but
the cause of the action. The common topics for the advocate for the
defence to employ are, a complaint of that calamity which has taken
place by no fault of his, but in consequence of some overruling power,
and a complaint also of the power of fortune and the powerless
state of men, and an entreaty that the judges should consider his
intentions, and not the result. And in the employment of all these
topics it will be desirable that there should be inserted a complaint
of his own unhappy condition, and indignation at the cruelty of his
adversaries.

And no one ought to marvel, if in these or other instances he sees
a dispute concerning the letter of the law added to the rest of the
discussion. And we shall have hereafter to speak of this subject
separately, because some kinds of causes will have to be considered by
themselves, and with reference to their own independent merits,
and some connect with themselves some other kind of question also.
Wherefore, when everything is cleared up, it will not be difficult to
transfer to each cause whatever is suitable to that particular kind of
inquiry, as in all these instances of admission of the fact, there is
involved that dispute as to the law, which is called the question as
to the letter and spirit of the law. But as we were speaking of the
admission of the fact we gave rules for it. But in another place we
will discuss the letter and the spirit of the law. At present we will
limit our consideration to the other division of the admission of the
fact.

XXXIV. Deprecation is when it is not attempted to defend the action
in question, but entreaties to be pardoned are employed. This kind of
topic can hardly be approved of in a court of justice, because, when
the offence is admitted, it is difficult to prevail on the man who
is bound to be the chastiser of offences to pardon it. So that it is
allowable to employ that kind of address only when you do not rest the
whole cause on it. As for instance, if you were speaking in behalf of
some illustrious or gallant man, who has done great services to
the republic, you might, without appearing to have recourse to
deprecation, still employ it in this manner:--"But if, O judges, this
man, in return for the services which he has done you, and the zeal
which he has displayed in your cause at all times, were now, when he
himself is in such peril, to entreat you, in consideration of his many
good actions, to pardon this one error, it would only be what is due
both to your own character for clemency, and to his virtue, O judges,
for you to grant him this indulgence at his request." Then it will be
allowable to dwell upon the services which he has done, and by the
use of some common topic to lead the judges to feel an inclination to
pardon him.

Wherefore, although this kind of address has no proper place in
judicial proceedings, except to a certain limited extent; still,
because both the portion which is allowable must be employed at times,
and because it is often to be employed in all its force in the senate
or in the council, we will give rules for it also. For there was a
long deliberation in the senate and in the council about Syphax; and
there was a long discussion before Lucius Opimius and his bench of
assessors respecting Quintus Numitorius Pullus; and in this case the
entreaty for pardon had more influence than the strict inquiry into
the case. For he did not find it so easy to prove that he had always
been well affected towards the Roman people, by employing the
statement of the case founded on conjecture, as to show that it was
reasonable to pardon him on account of his subsequent services, when
he added the topics of deprecation to the rest of his defence.

XXXV. It will be desirable, therefore, for the man who entreats to be
pardoned for what he admits that he has done, to enumerate whatever
services of his he is able to, and, if possible, to show that they are
greater than those offences which he has committed, so that it may
appear that more good than evil has proceeded from him; and then to
put forward also the services done by his ancestors, if there are any
such; and also to show that he did what he did, not out of hatred, or
out of cruelty, but either through folly, or owing to the instigation
of some one, or for some other honourable or probable cause; and after
that to promise and undertake that he has been taught by this error of
his, and confirmed in his resolution also by the kindness of those who
pardon him, to avoid all such conduct in future. And besides this, he
may hold out a hope that he will hereafter be able, in some respect or
other, to be of great use to those who pardon him now; he will find it
serviceable to point out that he is either related to the judges,
or that he has been as far back as possible an hereditary friend
of theirs; and to express to them the earnestness of his good-will
towards them, and the nobility of the blood and dignity of those
men who are anxious for his safety. And all other qualities and
circumstances which, when attributable to persons, confer honour and
dignity on them, he, using no complaint, and avoiding all arrogance,
will point out as existing in himself, so that he may appear to
deserve some honour rather than any kind of punishment; and after that
it will be wise of him to mention other men who have been pardoned for
greater offences.

And he will do himself a great deal of good if he shows that he
himself, when in power, was merciful and inclined to pardon others.
And the offence of which he is now accused must be extenuated and
made to appear as trifling as possible; and it must be shown to be
discreditable, or at all events inexpedient, to punish such a man as
he is. After that it will be advisable to seek to move pity by use of
common topics, according to those rules which have been laid down in
the first book.

XXXVI. But the adversary will exaggerate the offences; he will say
that nothing was done ignorantly, but that everything was the result
of deliberate wickedness and cruelty. He will show that the accused
person has been pitiless, arrogant, and (if he possibly can) at all
times disaffected, and that he cannot by any possibility be rendered
friendly. If he mentions any services done by him, he will prove that
they were done for some private object, and not out of any good will;
or else he will prove that he has conceived hatred since or else that
all those services have been effaced by his frequent offences, or else
that his services are of less importance than his injuries, or that,
as he has already received adequate honours for his services, he ought
also to have punishment inflicted on him for the injuries which he has
committed. In the next place, he will urge that it is discreditable or
pernicious that he should be pardoned. And besides that, it will be
the very extremity of folly not to avail oneself of one's power over
a man, over whom one has often wished to have power, and that it is
proper to consider what feelings, or rather what hatred they ought to
entertain towards him. But one common topic to be employed will be
indignation at his offence, and another will be the argument, that it
is right to pity those who are in distress, owing to misfortune, and
not those who are in such a plight through their own wickedness.

Since, then, we have been dwelling so long on the general statement of
the case, on account of the great number of its divisions, in order
to prevent any one's mind from being so distracted by the variety
and dissimilarity of circumstances, and so led into some errors,
it appears right also to remind the reader of what remains to be
mentioned of that division of the subject, and why it remains. We have
said, that that was the juridical sort of examination in which
the nature of right and wrong, and the principles of reward and
punishment, were investigated. We have explained the causes in which
inquiry into right and wrong is proceeded with. It remains now to
explain the principles which regulate the distribution of rewards and
punishments.

XXXVII. For there are many causes which consist of a demand of some
reward. For there is often question before the judges of the rewards
to be conferred on prosecutors, and very often some reward is claimed
for them from the senate, or from the bench of judges. And it is not
advisable that any one should think that, when we are adducing some
instance which is under discussion in the senate, we by so doing are
abandoning the class of judicial examples. For whatever is said
with reference to approving or disapproving of a person, when the
consideration of the opinions of the judges is adapted to that form of
expression, that, even although it is treated with reference to the
language in which the opinion is couched, is a deliberative argument,
still, because it has especial reference to some person, it is to be
accounted also judicial. And altogether, a man who has diligently
investigated the meaning and nature of all causes will perceive that
they differ both in character and in form; but in the other divisions
he will see them all consistent with each other, and every one
connected with the other. At present, let us consider the question of
rewards. Lucius Licinius Crassus, the consul, pursued and destroyed a
band of people in the province of the Nearer Gaul, who were collected
together under no known or regular leader, and who had no name or
number of sufficient importance to be entitled enemies of the Roman
people; but still they made the province unsafe by their constant
sallies and piratical outbreaks. He returns to Rome. He demands a
triumph. Here, as also in the case of the employment of deprecation,
it does not at all concern us to supply reasons to establish and to
invalidate such a claim, and so to come before the judges; because,
unless some other statement of the case is also put forth, or some
portion of such statement, the matter for the decision of the judges
will be a simple one, and will be contained in the question itself. In
the case of the employment of deprecation, in this manner: "Whether
so and so ought to be punished." In this instance, in such a manner:
"Whether he ought to be rewarded."

Now we will furnish some topics suitable for the investigation into
the principles of rewards.

XXXVIII. The principle, then, on which rewards are conferred is
distributable into four divisions: as to the services done; the person
who has done them; the kind of reward which is to be conferred; and
the means of conferring it. The services done will be considered with
reference to their own intrinsic merits, and to the time, and to
the disposition of the man who did them, and to their attendant
circumstances. They will be examined with reference to their own
intrinsic merits, in this manner:--Whether they are important or
unimportant; whether they were difficult or easy; whether they are
of a common or extraordinary nature; whether they are considered
honourable on true or false principles. And with reference to the time
at which they were done:--If they were done at a time when we had need
of them; when other men could or would not help them; if they were
done when all other hope had failed. With reference to the disposition
of the man who did them:--If he did not do them with a view to any
advantage of his own, but if he did everything else for the express
purpose of being able to do this afterwards. And with reference to the
attendant circumstances:--If what was done appears not to have been
done by chance, but in consequence of some deliberate design, or if
chance appears to have hindered the design.

But, with respect to the man who did the service in question, it will
be requisite to consider in what manner he has lived, and what expense
or labour he has devoted to that object; whether he has at any time
done any other similar action; whether he is claiming a reward
for himself for what is in reality the result of another person's
exertions, or of the kindness of the gods. Whether he has ever, in the
case of any one else, pronounced that he ought not to be rewarded for
such a reason; or, whether he has already had sufficient honour paid
to him for what he has done; or, whether what has been done is an
action of such a sort that, if he had not done it, he would have been
deserving of punishment; but that he does not deserve reward for
having done it; or, whether he is premature in his demand for a
reward, and is proposing to sell an uncertain hope for a certain
reward; or, whether he claims the reward in order to avoid some
punishment, by its appearing as if the case had already been decided
in his favour.

XXXIX. But as to the question of the reward, it will be necessary to
consider what reward, how great a reward is claimed, and why it is
claimed; and also, to what reward, and to how great a reward, the
conduct in question is entitled. And in the next place, it will be
requisite to inquire what men had such honours paid them in the time
of our ancestors, and for what causes those honours were paid. And, in
the next place, it will be urged that they ought not to be made too
common. And this will be one common topic for any one who speaks in
opposition to a person who claims a reward;--that rewards for virtue
and eminent services ought to be considered serious and holy things,
and that they ought not to be conferred on worthless men, or to be
made common by being bestowed on men of no particular eminence. And
another will be, to urge that men will become less eager to practise
virtue when the reward of virtue has been made common; for those
things which are scarce and difficult of attainment appear honourable
and acceptable to men. And a third topic is, to put the question,
whether, if there are any instances of men who, in the times of our
ancestors, were thought worthy of such honours on account of their
eminent virtue, they will not be likely to think it some diminution
of their own glory, when they see that such men as these have such
rewards conferred on them. And then comes the enumeration of those
men, and the comparison of them with those against whom the orator is
speaking. But the topics to be used by the man who is claiming the
reward are, first of all, the exaggeration of his own action; and
next, the comparison of the actions of those men who have had rewards
conferred on them with his own; and lastly, he will urge that other
men will be repelled from the pursuit of virtue if he himself is
denied the reward to which he is entitled.

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.

XL. 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. 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. 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."

XLI. 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. 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."

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.

XLII. 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. 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.

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." 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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