Book: The Orations of Marcus Tullius Cicero, Volume 4

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XXVIII. _C.F._ I understand the topics of panegyric and persuasion.
Now I am waiting to hear what is suited to judicial oratory, and I
think that that is the only subject remaining.

_C.P._ You are quite right. And of that kind of oratory the object is
equity, which is regarded, not in a single point of view only, but
very often by a sort of comparison: as when there is a dispute as to
who is the most appropriate prosecutor; or when the possession of an
inheritance is sought for without any express law, or without any
will. In which causes the question is, which alternative is the more
equitable or which is most equitable. And for these causes a supply of
arguments is sought for out of those topics of equity which will be
mentioned presently. And even before the decision is given, there is
often a dispute about the constitution of the bench of judges, when
the question is either whether the person who brings the action has a
right of action, or whether he has it at the present time, or whether
he has ceased to have it, or whether the action ought to be brought
under the provisions of this law, or according to that formula. And
if these points are not discussed, or settled, or decided, before the
case is brought into court, still they often have very great weight
even at the trial itself, when the case is stated in this way:--"You
demanded too much; you demanded it too late; it was not your business
to make such a demand at all; you ought not to have demanded it of me;
or you ought not to have done so under this law, or in accordance with
this formula, or in this court." And this class of cases belongs
to civil law, which depends on laws respecting public and private
affairs, or on precedent; and the knowledge of it seems to have been
neglected by most orators, but to us it appears very necessary for
speaking. Wherefore, as to arranging the right of action, as to
accepting or standing a trial, as to demurring to the illegality of
a proceeding, as to comparisons of justice, all which topics usually
belong to this class of oration, so that although they often get mixed
up with the judicial proceedings, still they appear to deserve to be
discussed separately; and therefore I separate them a little from the
judicial proceedings, more, however, as to the time at which they are
to be introduced into the discussion, than from any real diversity of
character. For all discussions which are introduced about civil law,
or about what is just and good, belong to that sort of discussion in
which we doubt what sort of thing such and such a thing which we are
going to mention is. And this question turns chiefly on equity and
right.

XXIX. In all causes, then, there are three degrees, of which one at
least is to be taken for the purposes of defence, if you are limited
to one. For you must either take your stand in denying that the act
imputed to you has been done at all, or in denying that that which you
admit to have been done has the effect which, and is of the character
which, the adversary asserts. Or if there can be no doubt as to the
action, or the proper name of the action, then you must deny that what
you are accused of is such as he states it to be; and you must urge
in your defence that what you have done must be admitted to be right.
Accordingly, the first objection,--the first point of conflict with
the adversary, as I may call it, depends on a kind of conjecture; the
second, on a kind of definition, or description, or notion of the
word; but the third plea is to be maintained by a discussion on
equity, and truth, and right, and on the becomingness to man of a
disposition inclined to pardon. And since he who defends ought
not always to resist the accuser by some objection, or denial, or
definition, or opposite principles of equity, but should also at times
advance general principles on which he founds his defence, the first
kind of objection has in it the principle of asserting the charge to
be unjust, an absolute denial of the fact; the second urges that the
definition given by the adversary does not apply to the action in
question the third consists in the advocate defending the action as
having been rightly done, without raising any dispute as to the name
of it.

In the next place, the accuser must oppose to every argument that,
which if it were not in the accusation, would prevent, there being any
cause at all. Therefore, those arguments which are brought forward in
that way, are said to be the foundations of causes, although those
which are brought forward in opposition to the plan of the defence,
are no more so in reality than the principles of the defence
themselves; but for the sake of distinction, we call that a reason
which is urged by the party on his trial in the way of demurrer for
the sake of repelling an accusation; and unless he had such a refuge
he would have nothing to allege by way of defence: but the foundation
of his defence is that which is alleged by way of undermining the
arguments of the adversary, without which the accusation can have no
ground to stand upon.

XXX. But from the meeting and conflict, as it were, of the reasons
and of the corroborative proofs, a question arises, which I call a
dispute, in which the question is, what is the question before the
court, and what the dispute is about. For the first point which
the adversaries contend for implies an inquiry of large extent in
conjecture: as "Whether Decius has received the money;" in definition,
as "Whether Norbanus has committed treason against the people;" in
justice, as "Whether Opimius slew Gracchus lawfully." These questions
which come into conflict first by arguing and resisting, are, as I
have said, of wide extent and doubtful meaning. The comparison of the
arguments and corroborative proofs narrows the question in dispute. In
conjecture there is no dispute at all. For no one either can, or ought
to, or is accustomed to, give a reason for an act which he asserts
never took place. Therefore, in these causes the original question and
the ultimate dispute are one and the same thing. But in them, when the
assertion is advanced, "He did not commit treason in proceeding to
violent measures in respect to Caepio; for it was the first indignation
of the Roman people that prompted that violent conduct, and not the
conduct of the tribune: and the majesty, since it is identical
with the greatness of the Roman people, was rather increased than
diminished by retaining that man in power and office." And when the
reply is, "Majesty consists of the dignity of the empire and name of
the Roman people, which that man impairs, who excites sedition by
appealing to the violent passions of the multitude;" then comes the
dispute, Whether his conduct was calculated to impair that majesty,
who acted upon the inclinations of the roman people, so as to do a
thing which was both just and acceptable to them by means of violence.
But in such causes as these, when it is alleged in defence of the
accused party that something has been rightly done, or when it must be
admitted that it has been done, while the principle of the act is open
to discussion: as in the case of Opimius, "I did it lawfully, for the
sake of preserving the general safety and the republic;" and when
Decius replies, "You had no power or right to slay even the wickedest
of the citizens without a trial." Then arises the dispute, "Had
Opimius lawfully the power, for the sake of the safety of the
republic, to put to death a citizen who was overturning the republic,
without his being condemned?" And so those disputes which arise in
these controversies which are marked out by certain persons and times
become gradually infinite, and after the times and persons are put out
of the question, are again reduced to the form and rules under which
their merits can be discussed.

XXXI. But in corroborative arguments of the most important character,
those points must also be established which can be opposed to the
defence, being derived either from the letter of the law, or of
a will, or from the language of a judicial decision, or of a
stipulation, or of a covenant. And even this kind has no connexion
with those causes which depend upon conjecture. For when an action is
denied altogether, it cannot be impeached by reference to the letter
of the law. It does not even come under definition, as to the
character of the letter of the law itself. For although some
expression or other is to be defined by reference to the letter of the
law, so as to be sure what meaning it has: as when the question arises
out of a will, what is meant by provisions, or out of the covenant of
a lease, what are moveables or fixtures; then it is not the fact of
there being written documents, but the interpretation of what is
written, that gives rise to controversy. But when many things may be
implied by one expression, on account of the ambiguity of some word or
words, so that he who is speaking on the other side may be allowed to
draw the meaning of what is written as is advantageous to him, or in
fact, as he pleases; or, if the document be not drawn up in ambiguous
language, he may either deduce the wish and intention of the writer
from the words, or else say that he can defend what has been done by a
document which is perfectly different relating to the same facts; then
a dispute arises from a comparison of the two written documents; so
that the writings being ambiguous, it is a question which is most
strongly implied; and in a comparison between the letter and the
spirit of the documents an argument is adduced to show which the
judge is the most bound to be guided by; or in documents of a wholly
contradictory nature, which is the most to be approved.

But when the point in dispute is once established, then the orator
ought to keep in view, what is to be proved by all the arguments
derived from the different topics for discovering arguments. And
although it is quite sufficient for him who sees what is concealed in
each topic, and who has all those topics, as a kind of treasury of
arguments, at his fingers' ends; still we will touch upon those which
are peculiar to certain causes.

XXXII. In conjecture, then, when the person on his trial takes refuge
in denial of the fact, these are the two first things for the accuser
to consider, (I say accuser, meaning every kind of plaintiff or
commencer of an action; for even without any accuser, in the strict
sense of the word, these same kinds of controversies may frequently
arise;) however, these are his first points for consideration, the
cause and the event. When I say the cause, I mean the reason for doing
a thing. When I say the event, I mean that which was done. And this
same division of cases was made just now, when speaking of the topics
of persuasion. For the rules which were given in deliberating upon the
future, and how they ought to have a bearing upon utility, or a power
of producing effects, a man who is arguing upon a fact is bound to
collect, so as to show that they must have been useful to the man whom
he is accusing, and that the act might possibly have been done by him.
The question of utility, as far as it depends upon conjecture, is
opened, if the accused person is said to have done the act of which he
is accused, either out of the hope of advantage or the fear of injury.
And this argument has the greater weight, the greater the advantages
or disadvantages anticipated are said to be. With reference to the
motive for an action we take into consideration also the feelings of
minds, if any recent anger, or long-standing grudge, or desire for
revenge, or indignation at an injury; if any eagerness for honour, or
glory, or command, or riches; if any fear of danger, any debt, any
difficulties in pecuniary matters, have had influence; if the man is
bold, or fickle, or cruel, or intemperate, or incautious, or foolish,
or loving, or excitable, or given to wine; if he had any hope of
gaining his point, or any expectation of concealing his conduct; or,
if that were detected, any hope of repelling the charge, or breaking
through the danger, or even postponing it to a subsequent time; or if
the penalty to be inflicted by a court of justice is more trifling
than the prize to be gained by the act; or if the pleasure of the
crime is greater than the pain of the conviction.

It is generally by such circumstances as these that the suspicion of
an act is confirmed, when the causes why he should have desired it are
found to exist in the party accused, together with the means of
doing it. But in his will we look for the benefit which he may have
calculated on from the attainment of some advantage, or the avoidance
of some disadvantage, so that either hope or fear may seem to have
instigated him, or else some sudden impulse of the mind, which impels
men more swiftly to evil courses than even considerations of utility.
So this is enough to have said about the causes.

_C.F._ I understand; and I ask you now what the events are which you
have said are produced by such causes?

XXXIII. _C.P._ They are certain consequential signs of what is past,
certain traces of what has been done, deeply imprinted, which have a
great tendency to engender suspicion, and are, as it were, a silent
evidence of crimes, and so much the more weighty because all causes
appear as a general rule to be able to give ground for accusations,
and to show for whose advantage anything was; and these arguments have
an especial propriety of reference to those who are accused, such as a
weapon, a footstep, blood, the detection of anything which appears to
have been carried off or taken away; or any reply inconsistent with
the truth, or any hesitation, or trepidation, or the fact of the
accused person having been seen with any one whose character is such
as to give rise to suspicion; or of his having been seen himself in
that very place in which the action was done; or paleness, or tremor,
or any writing, or anything having been sealed up or deposited
anywhere. For these are circumstances of such a nature as to make the
charge full of suspicion, either in connexion with the act itself, or
with the time previous or subsequent to it. And if they are not so,
still it will be proper to rely on the causes themselves, and on the
means which the accused person had of doing the action, with the
addition of that general argument, that he was not so insane as to be
unable to avoid or conceal any indications of the action, so as to be
discovered and to give ground for an accusation. On the other hand,
there is that common topic, that audacity is joined to rashness, not
to prudence. Besides, there comes the topic suited to amplification,
that we are not to wait for his confessing; that offences are proved
by arguments; and here, too, precedents will be adduced. And thus much
about arguments.

XXXIV. But if there is also a sufficiency of witnesses, the first
thing will be to praise the party accused, and to say that he himself
has taken care not to be convicted by argument; that he could not
escape from witnesses: then each of the witnesses must be praised,
(and we have stated already what are the things for which people
can be praised;) and in the next place, it must be urged that it is
possible for it to be quite justifiable not to yield to a specious
argument, (inasmuch as such an one is often false,) but quite
impossible to refuse belief to a good and trusty man, unless there is
some fault in the judge. And then, too, if the witnesses are obscure
or insignificant, we must say that a man's credit is not to be
estimated by his fortune, but that those are the most trustworthy
witnesses on every point who have the easiest means of knowing the
truth of the matter under discussion. If the fact of an examination of
slaves under torture having taken place, or a demand that such should
take place, will assist the cause, then in the first place the general
character of such examinations must be extolled: we must speak of
the power of bodily pain; of the opinion of our ancestors, who would
certainly have abolished the whole system if they had not approved of
it; of the customs of the Athenians and Rhodians, very wise men, among
whom (and that is a most terrible thing) even freemen and citizens
are tortured; of the principles also of the most prudent of our own
countrymen, who though they are unwilling to allow slaves to be
examined against their masters, still did allow of such examination in
the case of incest and conspiracy,--and in fact such an examination
took place in my consulship. That declamation which men are in the
habit of using to throw discredit on such examinations must be laughed
out of court, and called studied and childish. Then a belief must be
inculcated that the examination has been conducted with care, and
without any partiality; and the answers given in the examination must
be weighed by arguments and by conjecture. And these are for the most
part the divisions of an accusation.

XXXV. But the first division of a defence is the invalidating of the
motives alleged for the action,--either as having no real existence,
or as not having been so important, or as not having been likely to
influence any one but the person accused; or we may urge that he could
have attained the same object more easily; or that he is not a man
of such habits, or of such a character; or that he was not so much a
slave to sudden impulses, or at all events not to such trifling ones.
And the advocate for the defence will disparage the means alleged
to be in the power of the accused person, if he shows that either
strength, or courage, or power, or resources were wanting to him; or
that the time was unfavourable, or the place unsuitable; or that there
were many witnesses, not one of whom he would have chosen to trust; or
that he was not such a fool as to undertake a deed which he could not
conceal; nor so senseless as to despise the penalties of the law and
the courts of justice. And he will do away with the effect of the
consequences alleged, by explaining that those things are not certain
proofs of an act which might have happened even if the act had never
been done; and he will dwell on the details, and urge that they belong
as much to what he himself alleges was the fact, as to that which is
at present the ground of accusation: or if he agrees with the accuser
on those points, still he will say that ought to be of avail rather as
a defence to himself against danger, than as an engine for injuring
his safety; and he will run down the whole body of witnesses and
examinations under torture, generally, and also in detail as far as
he can, by the use of the topics of reprehension which have been
explained already. The openings of these causes which are intended to
excite suspicion by their bitterness will be thus laid down by the
accuser; and the general danger of all intrigues will be denounced;
and men's minds will be excited so as to listen attentively. But the
person who is being accused will bring forward complaints of charges
having been trumped up against him, and suspicions ferreted out from
all quarters; and he will speak of the intrigues of the accuser, and
also of the common danger of all citizens from such proceedings: and
so he will try to move the minds of the judges to pity, and to excite
their good-will in some degree. But the narration of the accuser will
be a separate count, as it were, which will contain an explanation
of every sort of transaction liable to suspicion, with every kind
of argument scattered over it, and all the topics for the defence
discredited. But the speaker for the defence must pass over or
discredit all the arguments employed to raise suspicion, and will
limit himself to a narration of the actual facts and events which have
taken place. But in the corroboration of our own arguments, and in the
invalidation of those of our adversaries, it will be often the object
of the accuser to rouse the feelings of the minds of his hearers, and
of the advocate for the defence to pacify them. And this will be the
course of both of them especially in the peroration. The one must
have recourse to a reiteration of his arguments, and to a general
accumulation of them together; the other, when he has once clearly
explained his own cause, refuting the statements of his adversary,
must have recourse to enumeration; and, when he has effaced every
unfavourable impression, then at the end he will endeavour to move the
pity of his judges.

XXXVI. _C.F._ I think I know now how conjecture ought to be dealt
with. Let me hear you now on the subject of definition.

_C.P._ With respect to that the rules which are given are common to
the accuser and the defender. For whichever of them by his definition
and description of a word makes the greatest impression on the
feelings and opinions of the judges, and whichever keeps nearest to
the general meaning of the word, and to that preconceived opinion
which those who are the hearers have adopted in their minds, must
inevitably get the better in the discussion. For this kind of topic
is not handled by a regular argumentation, but by shaking out, as it
were, and unfolding the word; so that, if, for instance, in the case
of a criminal acquitted through bribery and then impeached a second
time, the accuser were to define prevarication to be the utter
corruption of a tribunal by an accused person; and the defender were
to urge a counter definition, that it is not every sort of corruption
which is prevarication, but only the bribing of a prosecutor by a
defendant: then, in the first place, there would be a contest between
the different alleged meanings of the word; in which case, though
the definition, if given by the speaker for the defence, approaches
nearest to general usage and to the sense of common conversation,
still the accuser relies on the spirit of the law, for he says that it
ought not to be admitted that those men who framed the laws considered
a judicial decision as ratified when wholly corrupt, but that if even
one judge be corrupted, the decision should be annulled. He relies on
equity; he urges that the law ought to have been framed differently,
if that was what was meant; but that the truth is, that whatever kinds
of corruption could possibly exist were all meant to be included under
the one term prevarication. But the speaker for the defence will bring
forward on his side the usage of common conversation; and he will seek
the meaning of the word from its contrary; from a genuine accuser,
to whom a prevarication is the exact opposite; or from consequents,
because the tablets are given to the judge by the accuser; and from
the name itself, which signifies a man who in contrary causes appears
to be placed, as it were, in various positions. But still he himself
will be forced to have recourse to topics of equity, to the authority
of precedents, and to some dangerous result. And this may be a general
rule, that when each has stated his definition, keeping as accurately
as he can to the common sense and meaning of the word, he should then
confirm his own meaning and definition by similar definitions, and by
the examples of those men who have spoken in the same way.

And in this kind of cause that will be a common topic for the
accuser,--that it must never be permitted that the man who confesses a
fact, should defend himself by a new interpretation of the name of it.
But the defender must rely on those general principles of equity which
I have mentioned, and he must complain that, while that is on his
side, he is weighed down not by facts, but by the perverted use of a
word; and while speaking thus he will be able to introduce many topics
suited to aid him in discovering arguments. For he will avail himself
of resemblances, and contrarieties, and consequences; and although
both parties will do this, still the defendant, unless his cause is
evidently ridiculous, will do so more frequently. But the things which
are in the habit of being said, for the sake of amplification, or in
the way of digression, or when men are summing up, are introduced
either to excite hatred, or pity, or to work on the feelings of the
judges by means of those arguments which have been already given;
provided that the importance of the facts, or the envy of men, or the
dignity of the parties, will allow of it.

XXXVII. _C.F._ I understand that. Now I wish to hear you speak of that
part which, when the question is what is the character of such and
such a transaction, will be suitable both for the accusation and also
for the defence.

_C.P._ In a cause of that kind those who are accused confess that they
did the very thing for which they are blamed; but since they allege
that they did it lawfully, it is necessary for us to explain the
whole principles of law. And that is divided into two principal
divisions,--natural law and statute law. And the power of each of
these is again distributed into human law and divine law; one of which
refers to equity and the other to religion. But the power of equity
is two-fold: one part of which is upheld by considerations of what is
straightforward, and true, and just, and, as it is said, equitable and
virtuous; the other refers chiefly to requiting things done to one
suitably,--which in the case of that which is to be requited being a
kindness, is called gratitude, but when it is an injury, it is called
revenge. And these principles are common both to natural and statute
law. But there are also other divisions of law; for there is both the
written and the unwritten law,--each of which is maintained by the
rights of nations and the customs of our ancestors. Again, written
law is divided into public law and private law. Public law is laws,
resolutions of the senate, treaties; private law is accounts,
covenants, agreements, stipulations.

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