Book: The Orations of Marcus Tullius Cicero, Volume 4

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II. As every careful method of arguing has two divisions,--one of
discovering, one of deciding,--Aristotle was, as it appears to me, the
chief discoverer of each. But the Stoics also have devoted some pains
to the latter, for they have diligently considered the methods of
carrying on a discussion by that science which they call dialectics;
but the art of discovering arguments, which is called topics, and
which was more serviceable for practical use, and certainly prior in
the order of nature, they have wholly disregarded. But we, since both
parts are of the greatest utility, and since we intend to examine
each if we have time, will now begin with that which is naturally the
first.

As therefore the discovery of those things which are hidden is easy,
if the place where they are hidden is pointed out and clearly marked;
so, when we wish to examine any argument, we ought to know the
topics,--for so they are called by Aristotle, being, as it were,
seats from which arguments are derived. Therefore we may give as a
definition, that a topic is the seat of an argument, and that an
argument is a reason which causes men to believe a thing which would
otherwise be doubtful. But of those topics in which arguments are
contained, some dwell on that particular point which is the subject of
discussion; some are derived from external circumstances. When derived
from the subject itself, they proceed at times from it taken as a
whole, at times from its parts, at times from some sign, and at others
from things which are disposed in some manner or other towards the
subject under discussion; but those topics are derived from external
circumstances which are at a distance and far removed from the same
subject.

But a definition is employed with reference to the entire matter under
discussion which unfolds the matter which is the subject of inquiry as
if it had been previously enveloped in mystery. The formula of that
argument is of this sort: "Civil law is equity established among men
who belong to the same city, for the purpose of insuring each man in
the possession of his property and rights: and the knowledge of this
equity is useful: therefore the knowledge of civil law is useful."
Then comes the enumeration of the parts, which is dealt with in this
manner: "If a slave has not been declared free either by the censor,
or by the praetor's rod, or by the will of his master, he is not free:
but none of those things is the case: therefore he is not free." Then
comes the sign; when some argument is derived from the meaning of a
word, in this way:--As the Aelian Sentian law orders an assiduus[63] to
support an assiduus, it orders a rich man to support a rich man, for a
rich man is an assiduus, called so, as Aelius says, from _asse dando_.

III. Arguments are also derived from things which bear some kind of
relation to that which is the object of discussion. But this kind is
distributed under many heads; for we call some connected with one
another either by nature, or by their form, or by their resemblance to
one another, or by their differences, or by their contrariety to
one another, or by adjuncts, or by their antecedents, or by their
consequents, or by what is opposed to each of them, or by causes, or
by effects, or by a comparison with what is greater, or equal, or
less.

Arguments are said to be connected together which are derived from
words of the same kind. But words are of the same kind which,
originating from one word, are altered in various ways; as, "_sapiens,
sapienter, sapientia_." The connexion of these words is called [Greek:
suxugia]; from which arises an argument of this kind: "If the land is
common, every one has a right to feed his cattle on it."

An argument is derived from the kind of word, thus: "Since all the
money has been bequeathed to the woman, it is impossible that
that ready money which was left in the house should not have been
bequeathed. For the species is never separated from the genus as long
as it retains its name: but ready money retains the name of money:
therefore it is plain that it was bequeathed."

An argument is derived from the species, which we may sometimes name,
in order that it may be more clearly understood; in this manner: "If
the money was bequeathed to Fabia by her husband, on the supposition
that she was the mother of his family; if she was not his wife, then
nothing is due to her." For the wife is the genus: there are two kinds
of wife; one being those mothers of a family which become wives by
_coemptio_; the other kind are those which are only considered wives:
and as Fabia was one of those last, it appears that nothing was
bequeathed to her.

An argument is derived from similarity, in this way: "If those houses
have fallen down, or got into disrepair, a life-interest in which is
bequeathed to some one, the heir is not bound to restore or to repair
them, any more than he is bound to replace a slave, if a slave, a
life-interest in whom has been bequeathed to some one, has died."

An argument is derived from difference, thus: "It does not follow, if
a man has bequeathed to his wife all the money which belonged to him,
that therefore he bequeathed all which was down in his books as due to
him; for there is a great difference whether the money is laid up in
his strong box, or set down as due in his accounts."

An argument is derived from contraries, thus: "That woman to whom her
husband has left a life-interest in all his property, has no right, if
his cellars of wine and oil are left full, to think that they belong
to her; for the use of them is what has been bequeathed to her, and
not the misuse: and they are contrary to one another."

IV. An argument is derived from adjuncts, thus: "If a woman has made
a will who has never given up her liberty by marriage, it does not
appear that possession ought to be given by the edict of the praetor
to the legatee under that will; for it is added, that in that case
possession would seem proper to be given by that same edict, according
to the wills of slaves, or exiles, or infants."

Arguments are derived from antecedents, and consequents, and
contradictories, in this way. From antecedents: "If a divorce has been
caused by the fault of the husband, although the woman has demanded
it, still she is not bound to leave any of her dowry for her
children."

From consequents: "If a woman having married a man with whom she had
no right of intermarriage, has demanded a divorce, since the children
who have been born do not follow their father, the father has no right
to keep back any portion of the woman's dowry."

From contradictories: "If the head of a family has left to his wife in
reversion after his son the life-interest in the female slaves, and
has made no mention of any other reversionary heir, if the son dies,
the woman shall not lose her life-interest. For that which has once
been given to any one by will, cannot be taken away from the
legatee to whom it has been given without his consent; for it is a
contradiction for any one to have a right to receive a thing, and yet
to be forced to give it up against his will."

An argument is derived from efficient causes, in this way: "All men
have a right to add to a common party wall, a wall extending its whole
length, either solid or on arches; but if any one in demolishing the
common wall should promise to pay for any damages which may arise from
his action, he will not be bound to pay for any damage sustained or
caused by such arches: for the damage has been done, not by the party
which demolished the common wall, but in consequence of some fault in
the work, which was built in such a manner as to be unable to support
itself."

An argument is derived from what has been done, in this way: "When a
woman becomes the wife of a man, everything which has belonged to
the woman now becomes the property of the husband under the name of
dowry."

But in the way of comparison there are many kinds of valid arguments;
in this way: "That which is valid in a greater affair, ought to be
valid in a less: so that, if the law does not regulate the limits in
the city, still more will it not compel any one to turn off the water
in the city." Again, on the other hand: "Whatever is valid in a
smaller matter ought to be valid also in a greater one. One may
convert the preceding example." Also, "That which is valid in a
parallel case ought to be valid in this which is a parallel case." As,
"Since the usurpation of a farm depends on a term of two years, the
law with respect to houses ought to be the same." But in the law
houses are not mentioned, and so they are supposed to come under the
same class as all other things, the property in which is determined by
one year's use. Equity then must prevail, which requires similar laws
in similar cases.[64]

But those arguments which are derived from external circumstances
are deduced chiefly from authority. Therefore the Greeks call
argumentations of that kind [Greek: atechuoi], that is, devoid of
art. As if you were to answer in this way:--"In the case of some one
building a roof for the purpose of covering a common wall, Publius
Scaevola asserted that there was no right of carrying that roof so
far that the water which ran off it should run on to any part of any
building which did not belong to the owner of the roof. This I affirm
to be law."

V. By these topics then which have been explained, a means of
discovering and proving every sort of argument is supplied, as if they
were elements of argument. Have we then said enough up to this point?
I think we have, as far at least as you, an acute man and one deeply
skilled in law, are concerned. But since I have to deal with a man who
is very greedy when the feast in question is one of learning, I will
prosecute the subject so that I will rather put forth something more
than is necessary, than allow you to depart unsatisfied. As, then,
each separate one of those topics which I have mentioned has its own
proper members, I will follow them out as accurately as I can; and
first of all I will speak of the definition itself.

Definition is a speech which explains that which is defined. But of
definitions there are two principal kinds: one, of those things which
exist; the other, of those which are understood. The things which I
call existing are those which can be seen or touched; as a farm, a
house, a wall, a gutter, a slave, an ox, furniture, provisions, and so
on; of which kind of things some require at times to be defined by us.
Those things, again, I say have no existence, which are incapable of
being touched or proved, but which can be perceived by the mind
and understood; as if you were to define usucaption, guardianship,
nationality, or relationship; all, things which have no body, but
which nevertheless have a certain conformation plainly marked out and
impressed upon the mind, which I call the notion of them. They often
require to be explained by definition while we are arguing about them.

And again, there are definitions by partition, and others by division:
by partition, when the matter which is to be defined is separated, as
it were, into different members; as if any one were to say that civil
law was that which consists of laws, resolutions of the senate,
precedents, the authority of lawyers, the edicts of magistrates,
custom, and equity. But a definition by division embraces every form
which comes under the entire genus which is defined; in this way:
"Alienation is the surrender of anything which is a man's private
property, or a legal cession of it to men who are able by law to avail
themselves of such cession."

VI. There are also other kinds of definitions, but they have no
connexion with the subject of this book; we have only got to say what
is the manner of expressing a definition. This, then, is what the
ancients prescribe: that when you have taken those things which are
common to the thing which you wish to define with other things, you
must pursue them till you make out of them altogether some peculiar
property which cannot be transferred to anything else. As this: "An
inheritance is money." Up to this point the definition is common, for
there are many kinds of money. Add what follows: "which by somebody's
death comes to some one else." It is not yet a definition, for
money belonging to the dead can be possessed in many ways without
inheritance. Add one word, "lawfully." By this time the matter will
appear distinguished from general terms, so that the definition may
stand thus:--"An inheritance is money which by somebody's death has
lawfully come to some one else." It is not enough yet. Add, "without
being either bequeathed by will, or held as some one else's property."
The definition is complete. Again, take this:--"Those are _gentiles_
who are of the same name as one another." That is insufficient. "And
who are born of noble blood." Even that is not enough. "Who have never
had any ancestor in the condition of a slave." Something is still
wanting. "Who have never parted with their franchise." This, perhaps,
may do. For I am not aware that Scaevola, the pontiff, added anything
to this definition. And this principle holds good in each kind of
definition, whether the thing to be defined is something which exists,
or something which is understood.

VII. But we have shown now what is meant by partition, and by
division. But it is necessary to explain more clearly wherein
they differ. In partition, there are as it were members; as of a
body--head, shoulders, hands, sides, legs, feet, and so on. In
division there are forms which the Greeks call [Greek: ideae]; our
countrymen who treat of such subjects call them species. And it is not
a bad name, though it is an inconvenient one if we want to use it in
different cases. For even if it were Latin to use such words, I
should not like to say _specierum_ and _speciebus_. And we have often
occasion to use these cases. But I have no such objection to saying
_formarum_ and _formis_; and as the meaning of each word is the same,
I do not think that convenience of sound is wholly to be neglected.

Men define genus and species or form in this manner:--"Genus is
a notion relating to many differences. Species is a notion, the
difference of which can be referred to the head and as it were
fountain of the genus." I mean by notion that which the Greeks call
sometimes [Greek: _ennoia_], and sometimes [Greek: _enoprolaepsis_].
It is knowledge implanted and previously acquired of each separate
thing, but one which requires development. Species, then, are those
forms into which genus is divided without any single one being
omitted; as if any one were to divide justice into law, custom, and
equity. A person who thinks that species are the same things as parts,
is confounding the art; and being perplexed by some resemblance,
he does not distinguish with sufficient acuteness what ought to be
distinguished. Often, also, both orators and poets define by metaphor,
relying on some verbal resemblance, and indeed not without giving a
certain degree of pleasure. But I will not depart from your examples
unless I am actually compelled to do so.

Aquillius, then, my colleague and intimate friend, was accustomed,
when there was any discussion about shores, (all of which you lawyers
insist upon it are public,) to define them to men who asked to whom
that which was shore belonged, in this way: "Wherever the waves
dashed;" that is, as if a man were to define youth as the flower of
a man's age, or old age as the setting of life. Using a metaphor, he
departs from the words proper to the matter in hand and to his own
art. This is enough as to definition. Let us now consider the other
points.

VIII. But we must employ partition in such a manner as to omit no part
whatever. As if you wish to partition guardianship, you would act
ignorantly if you were to omit any kind. But if you were partitioning
off the different formulas of stipulations or judicial decisions, then
it is not a fault to omit something in a matter which is of boundless
extent. But in division it is a fault; for there is a settled number
of species which are subordinate to each genus. The distribution of
the parts is often more interminable still, like the drawing streams
from a fountain. Therefore in the art of an orator, when the genus
of a question is once laid down, the number of its species is added
absolutely; but when rules are given concerning the embellishments of
words and sentences, which are called [Greek: _schaemata_], the case
is different; for the circumstances are more infinite: so that it may
be understood from this also what the difference is which we assert to
exist between partition and division. For although the words appear
nearly equivalent to one another still, because the things are
different, the expressions are also established as not synonymous to
one another.

Many arguments are also derived from observation, and that is when
they are deduced from the meaning of a word, which the Greeks call
[Greek: _etumologia_]; or as we might translate it, word for word,
_veriloquium_. But we, while avoiding the novel appearance of a word
which is not very suitable, call this kind of argument _notatio_,
because words are the notes by which we distinguish things. And
therefore Aristotle calls the same source of argument [Greek:
_sunbolou_], which is equivalent to the Latin _nota_. But when it is
known what is meant we need not be so particular about the name. In
a discussion then, many arguments are derived from words by means
of observation; as when the question is asked, what is a
_postliminium_--(I do not mean what are the objects to which this word
applies, for that would be division, which is something of this sort:
"_Postliminium_ applies to a man, a ship, a mule with panniers, a
horse, a mare who is accustomed to be bridled")--but when the meaning
of the word itself, _postliminium_, is asked, and when the word itself
is observed. And in this our countryman, Servius, as it seems, thinks
that there is nothing to be observed except _post_, and he insists
upon it that _liminium_ is a mere extension of the word; as in
_finitimus, legitimus, ceditimus, timus_ has no more meaning than
_tullius_ has in _meditullius_.

But Scaevola, the son of Publius Scaeaevola, thinks the word is a
compound one, so that it is made up of _post_ and _limen_. So that
those things which have been alienated from us, when they have come
into the possession of our enemies, and, as it were, departed from
their own threshold, then when they have returned behind that same
threshold, appear to have returned _postliminio_. By which definition
even the cause of Mancinus may be defended by saying that he returned
_postliminio_,--that he was not surrendered, inasmuch as he was not
received. For that no surrender and no gift can be understood to have
taken place if there has been no reception of it.

IX. We next come to that topic which is derived from those things
which are disposed in some way or other to that thing which is the
subject of discussion. And I said just now that it was divided into
many parts. And the first topic is derived from combination, which the
Greeks call [Greek: sizugia], being a kindred thing to observation,
which we have just been discussing, as, if we were only to understand
that to be rain-water which we saw to have been collected from rain,
Mucius would come, who, because the words _pluna_ and _pluendo_ were
akin, would say that all water ought to be kept out which had been
increased by raining. But when an argument is derived from a genus,
then it will not be necessary to trace it back to its origin, we may
often stop on this side of that point, provided that which is deduced
is higher than that for which it is deduced, as, "Rain water in its
ultimate genus is that which descends from heaven and is increased by
showers," but in reference to its more proximate sense, under which
the right of keeping it off is comprised, the genus is, mischievous
rain water. The subordinate species of that genus are waters which
injure through a natural defect of the place, or those which are
injurious on account of the works of man: for one of these kinds may
be restrained by an arbitrator, but not the other.

Again, this argumentation is handled very advantageously, which is
derived from a species when you pursue all the separate parts by
tracing them back to the whole, in this way "If that is _dolus malus_
when one thing is aimed at, and another pretended," we may enumerate
the different modes in which that can be done, and then under some one
of them we may range that which we are trying to prove has been done
_dolo malo_. And that kind of argument is usually accounted one of the
most irrefragable of all.

X. The next thing is similarity, which is a very extensive topic, but
one more useful for orators and for philosophers than for men of
your profession. For although all topics belong to every kind of
discussion, so as to supply arguments for each, still they occurs more
abundantly in discussions on some subjects, and more sparingly in
others. Therefore the genera are known to you, but when you are to
employ them the questions themselves will instruct you. For there are
resemblances which by means of comparisons arrive at the point they
aim at, in this manner. "If a guardian is bound to behave with good
faith, and a partner, and any one to whom you have entrusted anything,
and any one who has undertaken a trust then so ought an agent." This
argument, arriving at the point at which it aims by a comparison of
many instances, is called induction, which in Greek is called [Greek:
_ipago_]. and it is the kind of argument which Socrates employed a
great deal in his discourses.

Another kind of resemblance is obtained by comparison, when one thing
is compared to some other single thing, and like to like, in this way
"As if in any city there is a dispute as to boundaries because the
boundaries of fields appear more extensive than those of cities, you
may find it impossible to bring an arbitrator to settle the question
of boundaries, so if rain water is injurious in a city, since the
whole matter is one more for country magistrates, you may not be
able to bring an arbitrator to settle the question of keeping off
rain-water" Again, from the same topic of resemblance, examples are
derived, as, "Crassus in Cunus's trial used many examples, speaking of
the man who by his will had appointed his heir in such a manner, that
if he had had a son born within ten months of his death, and that son
had died before coming into possession of the property held in trust
for him, the revisionary heir would succeed to the inheritance.
And the enumeration of precedents which Crassus brought forward
prevailed". And you are accustomed to use this style of argument very
frequently in replies. Even fictitious examples have all the force of
real ones, but they belong rather to the orator than to you lawyers,
although you also do use them sometimes, but in this way. "Suppose a
man had given a slave a thing which a slave is by law incapable of
receiving, is it on that account the act of the man who received it?
or has he, who gave that present to his slave on that account taken
any obligations on himself?" And in this kind of argument orators and
philosophers are allowed to make even dumb things talk, so that the
dead man be raised from the shades below, or that anything which
intrinsically is absolutely impossible, may, for the sake of adding
force to the argument, or diminishing, be spoken of as real and that
figure is called hyperbole. And they may say other marvellous things,
but theirs is a wider field. Still, out of the same topics, as I have
said before, arguments are derived for the most important and the most
trivial inquiries.

XI After similarity there follows difference between things, which is
as different as possible from the preceding topic, still it is the
same art which finds out resemblances and dissimilarities. These are
instances of the same sort--"If you have contracted a debt to a woman,
you can pay her without having recourse to a trustee, but what you
owe to a minor, whether male or female; you cannot pay in the same
manner."

The next topic is one which is derived from contraries. But the genera
of contraries are several. One is of such things as differ in the same
kind; as wisdom and jolly. But those things are said to be in the same
kind, which, when they are proposed, are immediately met by certain
contraries, as if placed opposite to them: as slowness is contrary to
rapidity, and not weakness. From which contraries such arguments as
these are deduced:--"If we avoid folly, let us pursue wisdom; and if
we avoid wickedness, let us pursue goodness." These things, as they
are contrary qualities in the same class, are called opposites. For
there are other contraries, which we may call in Latin, _privantia_,
and which the Greeks call [Greek: _steraetika_]. For the preposition
_in_ deprives the word of that force which it would have if _in_ were
not prefixed; as, "dignity, indignity--humanity, inhumanity," and
other words of the same kind, the manner of dealing with which is
the same as that of dealing with other kinds which I have called
opposites. For there are also other kinds or contraries; as those
which are compared to something or other; as, "twofold and simple;
many and few; long and short; greater and less." There are also those
very contrary things which are called negatives, which the Greeks call
[Greek: _steraetika_]: as, "If this is the case, that is not." For
what need is there for an instance? only let it be understood that in
seeking for an argument it is not every contrary which is suitable to
be opposed to another.

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