Book: The Orations of Marcus Tullius Cicero, Volume 4

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XLIII. 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; 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.
But as in this instance the wording of the law is plain, and 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.

XLIV. 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. 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.

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. 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.

XLV. 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. 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. 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. 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; 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.

XLVI. 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. 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.

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.

XLVII. 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; 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.
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.

XLVIII. 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.

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. 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.

XLIX. 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 regard 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 Pherse, 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. 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; 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. 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.

L. 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." 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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