 Book 5, Chapter 10, Part 2. In a similar way, division is valuable, both for proof and refutation. For proof, it is sometimes enough to establish one thing. To be a citizen, a man must either have been born or made such. For refutation, both points must be disproved. He was neither born nor made a citizen. This may be done in many ways, and constitutes a form of argument by elimination, whereby we show sometimes that the whole is false, sometimes that only that which remains after the process of elimination is true. An example of the first of these two cases would be, you say that you lent him money. Where you possessed it yourself, received it from another, found it, or stole it. If you did not possess it, received it from another, find or steal it, you did not lend it to him. The residue after elimination is shown to be true as follows. This lay, from whom you claim, was either born in your house, or bought, or given you, or left to you by will, or captured from the enemy, or belongs to another. By the elimination of the previous suppositions, he is shown to belong to another. This form of argument is risky, and must be employed with care. For if, inciting forth the alternatives, we chance to omit one, our whole case, and our audience will be moved to laughter. It is safer to do what the sister of thus in the procaitina, when he asks, if this is not the point at issue, what is? For thus, all other points are eliminated at one swoop. Or again, two contrary propositions may be advanced, either of which, if established, would suffice to prove the case. Take the following example from Cicero. There can be no one so hostile to Cloentius as not to grant me one thing. If it be a fact that the verdict then given was the result of bribery, the bribes must have preceded, either from habitus or opienicus. If I show that they did not proceed from habitus, I prove that they preceded from opienicus. If I demonstrate that they were given by opienicus, I clear habitus. Or we may give our opponent the choice between two alternatives, of which one must necessarily be true, and as a result, whichever he chooses, he will damage his case. Cicero does this in the pro-opio. Was the weapon snatched from his hands when he had attacked Cora, or when he was trying to commit suicide? And in the pro-areno. You have a choice between two alternatives. Either you must show that the choice of this route by Varanus was due to chance, or that it was the result of this man's persuasion and inducement. He then shows that either admission tells against his opponent. Once again, two propositions are stated of such a character that the admission of either involves the same conclusion, as in the sentence, we must philosophize, even though we ought not. Or as in the common dilemma, what is the use of a figure if its meaning is clear? And what is its use if it is unintelligible? Or he who is capable of enduring pain will lie if tortured, and so will he who cannot endure pain. As there are three divisions of time, so the orders of events fall into three stages. For everything has a beginning, growth and consummation, as for instance, a quarrel blows murder. Thus arise arguments, which lend each other mutual support, for the conclusion is inferred from the beginning, as in the following case. I cannot expect a purple striped toga when I see that the beginning of the web is black. Or the beginning may be inferred from the conclusion. For instance, the fact that Sulla resigned the dictatorship is an argument that Sulla did not take up arms with the intention of establishing a tyranny. Similarly, from the growth of a situation, we may infer either its beginning or its end, not only in questions of fact, but as regards points of equity, such as whether the conclusion is referable to the beginning, that is, should the man that began the quarrel be regarded as guilty of the bloodshed with which it ended? Arguments are also drawn from similarities. If self-control is a virtue, abstinence is also a virtue. If a guardian should be required to be faithful to his trust, so should an agent. To this class belongs the type of argument called epagoghiae by the Greeks, induction by Cicero. Or arguments may be drawn from unlikes. It does not follow that if joy is a good thing, pleasure also is a good thing. It does not follow that what applies to the case of a woman applies also to the case of a ward. Or from contraries, frugality is a good thing, since luxury is an evil thing. If he who does harm unwittingly deserves pardon, he who does good unwittingly does not deserve a reward. Or from contradictions. He who is wise is not a fool. Or from consequences necessary or probable. If justice is a good thing, we must give right judgment. If breach of faith is a bad thing, we must not deceive. And such arguments may also be reversed. Similar to these are the following arguments, which must, therefore, be classed under the same head, since it is to this that they naturally belong. A man has not lost what he never had. A man does not wittingly injure him whom he loves. If one man has appointed another as his heir, he regarded, still regards, and will continue to regard him with affection. However, such arguments, being uncontrovertible, are of the nature of absolute indications. These, however, I call consequent, or a coluta. Goodness, for instance, is consequent on wisdom. While, in regard to things which merely have taken place afterwards or will take place, I use the term, in-sequent, or parepomenna, though I do not regard the question of terminology as important. Give them any name you please, as long as the meaning is clear, and it is shown that the one depends on time, the other on the nature of things. I have, therefore, no hesitation in calling the following forms of argument also consequential, although they argue from the past to the future. Some, however, divide them into two classes, those concerned with action, as in the pro-opio. How could he detain against their will, those whom he was unable to take to the province against their will, and those concerned with time, as in the variants. If the 1st of January puts an end to the authority of the preacher's addict, why should the commencement of its authority not likewise date from the 1st of January? Both these instances are of such a nature that the argument is reversible, for it is a necessary consequence that those who could not be taken to the province against their will could not be retained against their will. So too, I feel clear that we should rank as consequential arguments those derived from facts which land each other mutual support, and are, by some, regarded as forming a separate kind of argument, which they call ectopros alela, arguments from things mutually related, while Cicero styles them arguments drawn from things to which the same line of reasoning applies. Take the following example. If it is honorable for the rodents to let out their harbor dues, it is honorable likewise for Hermokrian to take the contract, or what it is honorable to learn, it is also honorable to teach. Such also is the fine sentence of Domitius' offer, which has the same effect, though it is not identical in form. I accused you condemned. Arguments which prove the same thing from opposites are also mutually consequential. For instance, we may argue that he who says that the world was created, thereby implies that it is suffering decay, since this is the property of all created things. There is another, very similar form of argument, which consists in the inference of facts from their efficient causes, or the reverse, a process known as argument from causes. The conclusion is sometimes necessary, sometimes generally without being necessarily true. For instance, a body casts a shadow in the light, and the shadow wherever it falls indicates the presence of a body. There are other conclusions which, as I have said, are not necessary, whether as regards both cause and effect, or only one of the two. For instance, the sun collars the skin, but not everyone that is collared receives that collar from the sun. A journey makes the traveler dusty, but every journey does not produce dust, nor is everyone that is dusty just come from a journey. As examples of necessary conclusions on the other hand, I may cite the following. If wisdom makes a man good, a good man must needs be wise, and again, it is the part of a good man to act honorably, of a bad man to act dishonorably, or those who act honorably are considered good, those who act dishonorably are considered bad men. In these cases, the conclusion is correct. On the other hand, though exercise generally makes the body robust, not everyone who is robust is given to exercise, nor is everyone that is addicted to exercise robust. Nor again, because courage prevents our fearing death, is every man who has no fear of death to be regarded as a brave man, nor is the sun useless to man because it sometimes gives him a headache. Events such as the following belong, in the main, to the Hortitive Department of Oratory. Virtue brings renown, therefore it should be pursued, but the pursuit of pleasure brings ill-repute, therefore it should be shunned. But the warning that we should not necessarily search for the originating cause is just. An example of such error is provided by the speech of Medea, beginning, ha, with that never there in Pellians grove, as though her misery or guilt were due to the fact that there, the beams of fur had fallen to the ground, or I might cite the words addressed by Philoktitis to Paris. Had thou been other than thou art, then I had near been plunged in woe. By tracing back causes online such as these, we may arrive anywhere. But for the fact that Cicero has done so, I should regard it as absurd to add to these what is styled the conjugate argument, such as those who perform a just act act justly, a self-evident fact requiring no proof. Or again, every man has a common right to send his cattle to graze in a common pasture. Some call these arguments derived from causes or efficiencies, by the Greek name ekbaseis, that is, results. For in such cases, the only point considered is how one thing results from another. Those arguments, which prove the lesser from the greater, the greater from the less, or equals from equals, are styled opposite or comparative. A conjecture as to a fact is confirmed by argument from something greater in the following sentence. If a man commits sacrilege, he will also commit theft, from something less in a sentence such as, he who lies easily and openly will commit perjury. From something equal, in a sentence such as, he who has taken a bribe to give a false verdict will take a bribe to give false witness. Points of law may be proved in a similar manner, from something greater as in the sentence, if it is lawful to kill an adulterer, it is lawful to scourge him, from something less. If it is lawful to kill a man attempting theft by night, how much more lawful it is to kill one who attempts robbery with violence? From something equal, the penalty which is just in the case of parasite is also just in the case of metricide. In all these cases, we follow the syllogistic method. The following type of argument, on the other hand, is more serviceable in questions turning on definition or quality. If strength is good for the body, health is no less good. If theft is a crime, sacrilege is a greater crime. If abstinence is a virtue, so is self-control. If the world is governed by providence, the state also requires a government. If a house cannot be built without a plan, what of a whole city? If naval stores require careful supervision, so also do arms. I am content to treat this type of argument as a genus without going further. Others, however, divide it into species. For we may argue from several things to one or from one thing to several, hence arguments such as what has happened once may happen often. We may also argue from a part to the whole, from genus to species, from that which contains to that which is contained, from the difficult to the easy, from the remote to the near, and similarly from the opposites of all these to their opposites. Now, all these arguments deal with the greater or the less, or else with things that are equal. And if we follow up such fine distinctions, there will be no limit to our division into species. For the comparison of things is infinite. Things may be more pleasant, more serious, more necessary, more honorable, more useful. I say no more for fear of falling into that very gerulity which I deprecate. The number of examples of these arguments which I might quote is likewise infinite, but I will only deal with a very few. As an example of argument from something greater, take the following example from the Procaikina. Shall we suppose that that which alarms whole armies cause no alarm to a peaceful company of lawyers? As an instance of argument from something easier, take this passage from the speech against Claudius and Curio. Consider whether it would have been easy for you to secure the pretership when he in whose favor you withdrew failed to secure election. The following provides an example of argument from something more difficult. I beg you, Tubero, to remark that I, who do not hesitate to speak of my own deed, venture to speak of that performed by Legarius. And again, has not Legarius reason for hope when I am permitted to intercede with you for another? For an argument drawn from something less, take this passage from the Procaikina. Really, is the knowledge that the men were armed sufficient to prove that violence was offered and the fact that he fell into their hands insufficient? Well, then, to give a brief summary of the whole question, arguments are drawn from persons, causes, place and time, which letter we have divided into preceding, contemporary and subsequent, from resources under which we include instruments, from manner, that is, how a thing has been done, from definition, genus, species, difference, property, elimination, division, beginnings, increase, consummation, likes, unlikes, contradictions, consequence, efficiency, effects, results and comparison, which is subdivided into several species. I think I should also add that arguments are drawn not merely from admitted facts, but from fictitious oppositions, which the Greek style catipotes him, and that this letter type of argument falls into all the same divisions as those which I have mentioned above, since there may be as many species of fictitious arguments as there are of true arguments. When I speak of fictitious arguments, I mean the proposition of something which, if true, would either solve a problem or contribute to its solution, and secondly, the demonstration of the similarity of our hypotheses to the case under consideration. To make this the more readily intelligible to youths who have not yet left school, I will first of all illustrate it by examples of a kind familiar to the young. There is a law to the effect that the man who refuses to support his parents is liable to imprison it. A certain man fails to support his parents and nonetheless objects to going to prison. He advances the hypothesis that he would be exempt from such a penalty if he were a soldier, an infant, or if he were absent from home on the service of the state. Again, in the case of where a hero is allowed to choose his reward, we might introduce the hypotheses of his desiring to make himself a tyrant or to overthrow the temples of the gods. Such arguments are especially useful when we are arguing against the letter of the law and are thus employed by Cicero in the Prochaikina. The interdict contains the words, whence you or your household or your agent had driven him. If your steward alone had driven me out, it would not, I suppose, be your household, but a member of your household that had driven me out. If indeed you owned no slave except the one who drove me out, you would cry. If I possess a household at all, I admit that my household drove you out. Many other examples might be quoted from the same work, but fictitious oppositions are also exceedingly useful when we are concerned with the quality of an act. If Cataline should try this case assisted by a jury composed of those scoundrels whom he led out with him, he would condemn Lucius Morena. It is useful also for amplification. If this had happened to you during dinner in the midst of your deportations, or again, if the State could speak. Such, in the main, are the usual topics of proof as specified by teachers of rhetoric, but it is not sufficient to classify them generically in our instructions, since from each of them there arises an infinite number of arguments, while it is, in the very nature of things, impossible to deal with all their individual species. Though to have attempted to perform this latter task have exposed themselves in equal degree to two disadvantages, saying too much and yet failing to cover the whole ground. Consequently, the majority of students finding themselves lost in an inextricable maze have abandoned all individual effort, including even that which their own wits might have placed within their power, as though they were fettered by certain rigid laws, and keeping their eyes fixed upon their master have ceased to follow the guidance of nature. But as it is not in itself sufficient to know that all proofs are drawn either from persons or things, because each of these groups is subdivided into a number of different heads, so he who has learned that arguments must be drawn from antecedent, contemporary, or subsequent facts, will not be sufficiently instructed in the knowledge of the method of handling arguments to understand what arguments are to be drawn from the circumstances of each particular case, especially as the majority of proofs are to be found in the special circumstances of individual cases, and have no connection with any other dispute, and therefore, while they are the strongest, are also the least obvious, since, whereas we derive what is common to all cases from general rules, we have to discover for ourselves whatever is peculiar to the case which we have in hand. This type of argument may reasonably be described as drawn from circumstances, there being no other word to express the Greek peristasis, or from those things which are peculiar to any given case. For instance, in the case of the priest who having committed adultery desired to save his own life by means of the law, which gave him the power of saving one life, the appropriate argument to employ against him would run as follows. He would save more than one guilty person, since, if you were discharged, it would not be lawful to put the adulterous to death. For such an argument follows from the law, forbidding the execution of the adulterous apart from the adulterer. Again, take the case falling under the law which lays down that bankers may pay only half of what they owe, while permitted to recover the whole of what they are owed. One banker requires payment of the whole sum owed him by another banker. The appropriate argument supplied by the subject to the creditor is that there was special reason for the insertion of the clause, sanctioning the recovery of the whole of a debt by a banker, since there was no need of such a law as against others, inasmuch as all have the right to recover the whole of a debt from any save a banker. But while some fresh considerations are bound to present themselves in every kind of subject, this is more especially the case in questions turning on the letter of the law, since not merely individual words but still more whole phrases are frequently ambiguous. And these considerations must vary according to the complexity of laws and other documents, whether they are in agreement or contradictory, since fact throws light on fact and law on law, as in the following argument. I owed you no money, you never summoned me for debt, you took no interest from me, nay, you actually borrowed money from me. It is laid down by law that he who refuses to defend his father when accused of treason thereby loses his right to inherit. A son denies that he is liable to dispensality unless his father is acquitted. How does he support this contention? There's another law to the effect that a man found guilty of treason shall be banished and his advocate with him. Cicero in the Procluentio says that Publius Papilius and Iberius Gutta were not condemned for receiving bribes to give a false verdict, but for attempting to bribe a jury. What is his argument in support of this view? That their accusers, who were themselves found guilty of bribing the jury, were restored in accordance with law after winning their case. But the consideration as to what argument should be put forward requires no less care than the consideration of the manner in which we are to prove that which we have put forward. Indeed, in this connection invention, if not the most important, is certainly the first consideration. For, just as weapons are superfluous for one who does not know what his target is, so too, arguments are useless, unless you see in advance to what they are to be applied. This is a task for which no formal rules can be laid down. Consequently, though a number of orators who have studied the same rules will use similar kinds of arguments, one will discover a greater number of arguments to suit his case than another. Let us take as an example a controversial theme involving problems that have little in common with other cases. When Alexander destroyed Thebes, he found documents showing that the Thebans had lent a hundred talents to the Thessalians. These documents he presented to the Thessalians as a reward for the assistance they had given him in the campaign. Subsequently, the Thebans, after the restoration of their city by Cassander, demanded that the Thessalians should repay the money. The case is stride before the Amphitheonic Council. It is admitted that the Thebans lent the money and were not repaid. The whole dispute turns on the allegation that Alexander had excused the Thessalians from payment of the debt. It is also admitted that the Thessalians had received no money from Alexander. The question is therefore whether this gift is equivalent to his having given them money. What use will formal topics of argument be in such a case, unless I first convince myself that the gift of Alexander made no difference, that he had not the power to make it, and that he did not make it? The opening of the Thebans' plea presents no difficulty and is likely to win the approval of the judges since they are seeking to recover by right what was taken from them by force. But out of this point arises a violent controversy as to the right of war, since the Thessalians urge that kingdoms and peoples and the frontiers of nations and cities depend upon these rights. To meet this argument it is necessary to discover in what respect this case differs from others which are concerned with property that has fallen into the hands of the victor. The difficulty moreover lies not so much in the proof as in the way it should be put forward. We may begin by stating that the rights of war do not hold good in any matter which can be brought before a court of justice, and that what is taken by force of arms can only be retained by force of arms, and consequently wherever the rights of war holds good there is no room for the functions of a judge, while on the contrary where the functions of the judge come into play the rights of war cease to have any force. The reason why it is necessary to discover this principle is to enable us to bring the following argument into play that prisoners of war are free on returning to their native land, just because the gains of war cannot be retained except by the exercise of the same violence by which they were acquired. Another peculiar feature of the case is that it is tried before the Amphithionic Council, and you will remember that we have to employ different methods in pleading a case before the centumural court and before an arbitrator, though the problems of the cases may be identical. Secondly, we may urge that the right to refuse payment could not have been conferred by the victor because he possesses only what he holds, but a right, being incorporeal, cannot be grasped by the hand. It is more difficult to discover this principle then, once discovered, to defend it with arguments such as that the position of an heir and a conqueror are fundamentally different, since right passes to the one and property to the other. It is further an argument peculiar to the subject matter of the case that the right over a public debt could not have passed to the victor, because the repayment of a sum of money lent by a whole people is due to them all, and as long as any single one of them survives, he is creditor for the whole amount. But the Thebans were never all of them to a man in Alexander's power. The force of this argument resides in the fact that it is not based on any external support, but holds good in itself. Proceeding to the third line of argument, we may note that the first portion of it is of a more ordinary type, namely that the right to repayment is not based on the actual document, a plea which can be supported by many arguments. Bout may also be thrown on Alexander's purpose. Did he intend to honor them or to trick them? Another argument peculiar to the subject, indeed it practically introduces a new discussion, is that the Thebans may be regarded as having in virtue of their restoration recovered the right, even though it be admitted that they had lost it. Again, Cassandra's purpose may be discussed, but as the case is being pleaded before the Amphithionic Council, we shall find that the most powerful plea that can be urged is that of equity. I make these remarks, not because I think that a knowledge of the places from which arguments may be derived is useless, as I thought so, I should have passed them by. But to prevent those who have learned these rules from neglecting other considerations, and regarding themselves as having a perfect and absolute knowledge of the whole subject, and to make them realize that unless they acquire a thorough knowledge of the remaining points which I am about to discuss, they will be the possessors of what I can only call a dumb science. For the discovery of arguments was not the result of the publication of textbooks, but every kind of argument was put forward before any rules were laid down, and it was only later that writers of rhetoric noted them and collected them for publication. A proof of this is the fact that the examples which they use are old and quoted from the orators, while they themselves discover nothing new, or that has not been said before. The creators of the art were therefore the orators, though we owe a debt of gratitude also to those who have given us a shortcut to knowledge. For thanks to them, the arguments discovered by the genius of earlier orators have not got to be hunted down and noted in detail. But this does not suffice to make an orator any more than it suffices to learn the art of gymnastics in school. The body must be assisted by continual practice, self-control, diet, and above all by nature. On the other hand, none of these are sufficient in themselves without the aid of art. I would also have students of oratory consider that all the forms of argument which I have just set forth cannot be found in every case, and that when the subject on which we have to speak has been propounded, it is no use considering each separate type of argument and knocking at the door of each with a view to discovering whether they may chance to serve to prove our point, except while we are in the position of mere learners without any knowledge of actual practice. Such a process merely retards the process of speaking to an incalculable extent if it is always necessary for us to try each single argument and thus learn by experiment what is apt and suitable to our case. In fact, I am not sure that it will not be an actual obstacle to progress, unless a certain innate penetration and a power of rapid divination seconded by study lead us straight to the arguments which suit our case. For just as the melody of the voice is most pleasing when accompanied by the lyre, yet if the musicians hand be slow, and unless he first look at the strings and take their measure, hesitate as to which strings match the several notes of the voice, it would be better that he should content himself with the natural music of the voice unaccompanied by any instrument. Even so, our theory of speaking must be adapted, and, like the lyre, attuned to such rules as these. But it is only by constant practice that we can secure that just as the hands of the musician, even though his eyes be turned elsewhere, produce bass, treble, or intermediate tones by force of habit, so the thought of the orator should suffer no delay owing to the variety and number of possible arguments, but that the latter should present themselves uncalled and, just as letters and syllables require no thought on the part of a writer, so arguments should spontaneously follow the thought of the orator. The third kind of proof, which is drawn into the service of the case from without, is styled a paradigma by the Greeks, who apply the term to all comparisons of like with like, but more especially to historical parallels. Roman writers have, for the most part, preferred to give the name of comparison, should that which the Greeks style parabolae, while they translate paradigma by example, although this letter involves comparison, while the former is of the nature of an example. For my own part, I prefer with a view to making my purpose easier of apprehension to regard both as paradigmata, and to call them examples. Nor am I afraid of being thought to disagree with Cicero, although he does separate comparison from example. For he divides all arguments into two classes, induction and resuscitation, just as most Greeks divided into paradigmata and epicheremata, explaining paradigma as a rhetorical induction. The method of argument chiefly used by Socrates was of this nature. When he had asked a number of questions to which his adversary could only agree, he finally inferred the conclusion of the problem under discussion from its resemblance to the points already conceded. This method is known as induction, and though it cannot be used in a sad speech, it is usual in a speech to assume that which takes the form of a question in dialogue. For instance, take the following question. What is the finest form of fruit? Is it not that which is best? This will be admitted. What of the horse? What is the finest? Is it not that which is the best? Several more questions of the same kind follow. Last comes the question. What of men? Is not he the finest type who is best? The answer can only be in the affirmative. Such a procedure is most valuable in the examination of witnesses, but is differently employed in a sad speech. For there, the orator either answers his own questions or makes an assumption of that which in dialogue takes the form of a question. What is the finest fruit? The best, I should imagine. What is the finest horse? The swiftest. So too, the finest type of man is not he that is noblest of birth, but he that is most excellent in virtue. All arguments of this kind, therefore, must be from things like or unlike or contrary. Similes are, it is true, sometimes employed for the embellishment of the speech as well, but I will deal with them in their proper place. At present, I am concerned with the use of similitude in proof. The most important of proofs of this class is that which is most properly styled example, that is to say, the inducing of some past action, real or assumed, which may serve to persuade the audience of the truth of the point which we are trying to make. We must therefore consider whether the parallel is complete or only partial, that we may know whether to use it in its entirety or merely to select those portions which are serviceable. We argue from the like when we say, Saturninus was justly killed, as were the Gracchi, from the unlike when we say, Brutus killed his sons for plotting against the state, while Manlius condemned his son to death for his valor. From the contrary, when we say, Marcellus restored the works of art which had been taken from the Syracusans who were our enemies, while Veres took the same works of art from our allies. The same divisions apply also to such forms of proof in Panagyric or denunciation. It will also be found useful when we are speaking of what is likely to happen to refer to historical parallels. For instance, if the Order asserts that Dionysus is asking for a bodyguard, that with their armed assistance he may establish himself as Tyrant, he may induce the parallel case of Pysistratus who secured the supreme power by similar means. But while examples may at times, as in the last instance, apply in their entirety, at times we shall argue from the greater to the less, or from the less to the greater. Cities have been overthrown by the violation of the marriage bond. What punishment then will meet the case of adultery? Fluke players have been recalled by the state to the city which they had left. How much more, then, is it just that leading citizens who have rendered good service to their country should be recalled from that exile to which they have been driven by envy? Arguments from un-likes are most useful in exhortation. Courage is more remarkable in a woman than in a man. Therefore, if we wish to kindle someone's ambition to the performance of herbroic deeds, we shall find that parallels drawn from the case of Horatius and Torquatus will carry less weight than that of the woman by whose hand Pyrrhus was lain. And if we wish to urge a man to meet death, the cases of Cato and Cipio will carry less weight than that of Lucretia. These are, however, arguments from the greater to the less. Let me then give you separate examples of these classes of argument from the pages of Cicero, for where should I find better? The following passage from the Promurena is an instance of argument from the like. For it happened then, I myself, when a candidate, had two patricians as competitors, the one a man of the most unscrupulous and reckless character, the other a most excellent and respectable citizen. Ye I defeated Caroline by force of merit, and Galba by my popularity. The Promilone will give us an example of argument from the greater to the less. They say that he who confesses to having killed a man is not fit to look upon the light of day. Where is the city in which men are such fools as to argue this? It is Rome itself, the city whose first trial on a capital charge was that of Marcus Horatius, the bravest of men, who, though the city had not yet attained its freedom, was nonetheless acquitted by the assembly of the Roman people, in spite of the fact that he confessed that he had slain his sister with his own hand. The Follum is an example of argument from the less to the greater. I killed, not Spirius Melius, who, by lowering the price of corn and sacrificing his private fortune, fell under the suspicion of desiring to make himself king, because it seemed that he was courting popularity with the common people over much. And so on, till we come to, no, the man I killed, for my client would not shrink from the avowal, since his deed had saved his country, was he who committed abominable adultery, even in the shrines of the gods, then follows the whole invective against Claudius. Arguments from unlike present great variety, for they may turn on kind, manner, time, place, etc., almost every one of which sister employs to overthrow the previous decisions that seem to apply to the case of Cluentes. While he makes use of argument from contraries, when he minimizes the importance of the sensorial stigma by praising Scipio Africanus, who, in his capacity of censor, allowed one whom he openly asserted to have committed deliberate perjury to retain his horse, because no one had appeared as evidence against him, though he promised to come forward himself to be a witness to his guilt, if any should be found to accuse him. I have paraphrased this passage, because it is too long to quote. A brief example of a similar argument is to be found in Virgil. But he, whom falsely thou dost call thy father, even Achilles, in far otherwise dealt with old Priam, and Priam was his foe. Historical parallels may, however, sometimes be related in full, as in the Promilone, when a military tribune serving in the army of Gaius Marius, to whom he was related, made an assault upon the honor of a common soldier, the latter killed him, for the virtuous youth preferred to risk his life by slaying him to suffering such dishonor. And yet, the great Marius acquitted him of all crime and let him go scot-free. On the other hand, in certain cases, it will be sufficient merely to allude to the parallel, as this true does in the same speech. For neither the famous Servilius Ahala, nor Publius Nazica, nor Lucius Epimius, nor the Senate, during my consulship, could be cleared of serious guilt if it were a crime to put wicked men to death. Such parallels will be induced at greater or less length, according as they are familiar, or as the interests or adornment of our case may demand. A similar method is to be pursued in quoting from the fictions of the poets, though we must remember that they will be of less force as proofs. The same supreme authority, the great master of eloquence, shows us how we should employ such quotations. For an example of this type will be found in the same speech. And it is therefore, gentlemen of the jury, that men of the greatest learning have recorded in their fictitious narratives that one who had killed his mother to avenge his father was acquitted, when the opinion of men was divided as to his guilt, not merely by the decision of a deity, but by the vote of the wisest of goddesses. Again, those fables which, at length, they did not originate with Issa, for Hesiod seems to have been the first to write them, are best known by Issa's name, are especially attractive to rude and uneducated minds, which are less suspicious than others in their reception of fictions, and, when pleased, readily agree with the arguments from which their pleasure is derived. Thus Menenia's agrippa is said to have reconciled the plebs to the patricians by his fable of the limb squirreled with the belly. Horrors also did not regard the employment of fables as beneath the dignity, even of poetry, witness his lines at narrate, what the shrewd fox to the sick lion told. The Greeks call such fables Ainoi, tales, and, as I have already remarked, Issapean or Libyan stories, while some Roman writers term them epilogues, though the name has not found general acceptance. Similar to these is that class of proverb, which may be regarded as an abridged fable, and is understood allegorically. The burden is not mine to carry, he said. The ox is carrying pen years. Similarly has a force not unlike that of example, more especially when drawn from things nearly equal, without any admixture of metaphor, as in the following case. Just as those who have been accustomed to receive bribes in the campus marches are especially hostile to those whom they suspect of having withheld the money, so, in the present case, the judges came into court with a strong prejudice against the accused. For Parabolet, which Cicero translates by comparison, is often apt to compare things whose resemblance is far less obvious. Nor does it nearly compare the actions of men as Cicero does in the promurena. But if those who have just come into harbor from the high seas are in the habit of showing the greatest solicitude in warning those who are on the point of leaving port of the state of the weather, the likelihood of falling in with pirates and the nature of the coasts which they are like to visit, for it is a natural instinct that we should take a kindly interest in those who are about to face the dangers from which we have just escaped. What think you should be my attitude, who am now in sight of land after a mighty tossing on the sea, towards this man who, as I clearly see, has to face the wildest weather? On the contrary, similes of this kind are sometimes drawn from dumb animals and inanimate objects. Further, since similar objects often take on a different appearance when viewed from a different angle, I feel that I ought to point out that the kind of comparison which the Greeks call achon and which expresses the appearance of things and persons, as for instance in the line of Cassius, who is he yonder that doth writhe his face like some old man whose feet are wrapped in wool, should be more sparingly used in oratory than those comparisons which help prove our point. For instance, if you wish to argue that the mind requires cultivation, you would use a comparison drawn from the soil which, if neglected, produces thorns and thickets, but if cultivated will bear fruit. Or if you are exhorting someone to enter the service of the state, you will point out that bees and ants, though not merely dumb animals but tiny insects, still toil for the common wheel. Of this kind is the saying of Cicero, as our bodies can make no use of their members without a mind to direct them, so the state can make no use of its component parts which may be compared to the sinews, blood and limbs, unless it is directed by law. And just as he draws the simile in the procluentio from the analogy of the human body, so in the procornelio he draws a simile from horses and in the proarchia from stones. As I have already said, the following type of simile comes more readily to hand. As oarsmen are useless without a steersman, so soldiers are useless without a general. Still it is always possible to be misled by appearances in the use of simile, and we must therefore use our judgment in their employment. For though a new ship is more useful than one which is old, this simile will not apply to friendship. And again, though we praise one who is liberal with her money, we do not praise one who is liberal with her embraces. In these cases, there is similitude in the epithets old and liberal, but their force is different when applied to ships and friendship, money and embraces. Consequently, it is all important in this connection to consider whether the simile is really applicable. So, in answering those Socratic questions which I mentioned above, the greatest care must be taken to avoid giving an unconscious answer, such as those given by the wife of Xenophon to Aspasia in the dialects of Eskenes the Socratic. The passage is translated by Cicero as follows. Tell me, pray, wife of Xenophon, if your neighbor has finer gold ornaments than you, would you prefer hers or yours? Hers, she replied. While then, if her dresses and the rest of her ornaments are more valuable than yours, which would you prefer? Hers or yours? Hers, she replied. Come then, said she. If her husband is better than yours, would you prefer yours or hers? At this the wife of Xenophon not unnaturally plushed, for she had answered ill and replying that she would prefer her neighbor's gold ornaments to her own, since it would be wrong to do so. If, on the other hand, she had replied that she would prefer her ornaments to be of the same quality as those of her neighbor, she might have answered without putting herself to the blush that she would prefer her husband to be like him who was superior in virtue. I am aware that some writers have shown pedantic zeal and making a minute classification of similes, and have pointed out that there is lesser similitude, such as that of a monkey to a man, or a statue when first blocked out to its original. A greater similitude, for which compare the proverb as like as egg to egg. A similitude in things dissimilar, an elephant for instance, and an ant both belong to the genus animal. And dissimilitude in things similar, puppies and kids for example, are unlike the parents, for they differ from them in point of age. So too they distinguish between contraries, some are opposites as night today, some hurtful as cold water to a fever, some contradictory as truth to falsehood, and some negative as things which are not hard when contrasted with things which are hard. But I cannot see that such distinctions have any real bearing on the subject under discussion. It is more important for a purpose to note that arguments may be drawn from similar, opposite and dissimilar points of law. As an example of the first, take the following passage from the topica of Cicero, where he argues that a man to whom the usufruct of a house has been left will not restore it in the interest of the air if it collapses, just as he would not replace a slave if he should die. The following will provide an example of an argument drawn from opposite points of law. The absence of a formal contract is no bar to the legality of a marriage provided the parties cohabit by mutual consent. An instance of an argument drawn from the similar points of law occurs in the procaikina of Cicero. If anyone had driven me from my house by armed violence, I should have ground for action against him. Have I then no ground if he has prevented me from entering my house? The similar points may be illustrated by the following example. Because a man has bequeathed all his silver to a given person, and this bequest is regarded as including silver coin, as well as plate, it does not follow that he intended all outstanding debts to be paid to the legality. Some draw distinction between analogy and similarity, but personally, I regard the former as included under the latter. For the statement that the relation of 1 to 10 is the same as that of 10 to 100 certainly involves similarity, just as does the statement that a bad citizen may be compared to an actual enemy. But arguments of this kind are carried still further. If connection with a male slave is disgraceful to the mistress of the house, so is the connection of the master with a female slave. If pleasure is an end sought by dumb animals, so also must it be with men. But these arguments may readily be met by arguments from dissimilars. It is not the same thing for the master of the house to have intercourse with a female slave, as for the mistress to have intercourse with a male slave. Nor does it follow that because dumb animals pursue pleasure, reasoning beings should do likewise. Or they may even be met by arguments from opposites, as for instance, because pleasure is an end sought by dumb animals, it should not be sought by reasoning beings. Authority also may be drawn from external sources to support a case. Those who follow the Greeks, who call such arguments Crises, style them judgments or adjudications, thereby referring not to matters on which judicial sentence has been pronounced, for such decisions form examples or precedents, but to whatever may be regarded as expressing the opinion of nations, peoples, philosophers, distinguished citizens, or illustrious poets. May even common sayings and popular beliefs may be found to be useful, for they form a sort of testimony, which is rendered all the more impressive by the fact that it was not given to suit special cases, but was the utterance or action of minds swayed neither by prejudice or influence, simply because it seemed the most honorable or honest thing to say or do. For instance, if I am speaking of the misfortunes of this mortal life, surely it will help me to reduce the opinion of those nations who hold that we should weep over the newborn child and rejoice over the dead. Or if I am urging the judge to show pity, surely my argument may be assisted by the fact that Athens, the wisest of all states, regarded pity not merely as an emotion, but even as a God. Again, do we not regard the precepts of the seven wise men as so many rules of life? If an adulteress is on her trial for poisoning, it should not already be regarded as condemned by the judgment of Marcus Cato, who asserted that every adulteress was as good as a poisoner. As for reflections drawn from the poets, not only speeches, but even the works of the philosophers are full of them. For although the philosophers think everything inferior to their own precepts and writings, they have not thought it beneath their dignity to quote numbers of lines from the poets to lend authority to their statements. Again, a remarkable example of the weight carried by authority is provided by the fact that when the Magarians disputed the possession of Salamis with the Athenians, the latter prevailed by citing a line from Homer, which is not however found in all editions, to the effect that Ajax united his ships with those of the Athenians. Generally, received sayings also become common property, owing to the very fact that they are anonymous, as for instance, friends are a treasure, or conscience is as good as a thousand witnesses, or to quote Cicero, in the words of the old proverb, birds of a feather flock together. Sayings such as these would not have acquired immortality had they not carried conviction of their truth to all mankind. Some include under his head the supernatural authority that is derived from oracles, as for instance, the response asserting that Socrates was the wisest of mankind. Indeed, they rank it above all other authorities. Such authority is rare, but may prove useful. It is employed by Cicero in his speech on the replies of the soothsayers, and in the oration in which he denounced Catalan to the people, when he points to the statue of Jupiter crowning a column, and again in the Proligario, where he admits the cause of Caesar to be the better because the gods have decided in his favor. When such arguments are inherent in the case itself, they are called supernatural evidence. When they are deuced from without, they are styled supernatural arguments. Sometimes again, it may be possible to produce some saying or action of the judge of our adversary of his advocate in order to prove our point. There have, therefore, been some writers who have regarded examples and the usable authorities of which I am speaking as belonging to inartificial proofs on the ground that the orator does not discover them, but receives them ready made. But the point is of great importance. For witnesses and investigation and the like all make some pronouncement on the actual matter under trial, whereas arguments drawn from without are in themselves useless, unless the pleader has the wit to apply them in such a manner as to support the points which he is trying to make. End of Chapter 11. Book 5 Chapter 12 of On the Education of an Orator by Quintilian, translated by H. E. Butler, this LibriVox recording is in the public domain. Chapter 12. Such in the main are the views about proof which I have either heard from others or learned by experience. I would not venture to assert that this is all there is to be said. Indeed, I would exhort students to make further researches on the subject, for I admit the possibilities of making further discoveries. Still anything that may be discovered will not differ greatly from what I have said here. I will now proceed to make a few remarks as to how proofs should be employed. It has generally been laid down that an argument to be effective must be based on certainty, for it is obviously impossible to prove what is doubtful by what is no less doubtful. Still some things which are adduced as proof require proof themselves. You killed your husband, for you were an adulteress. Adultery must first be proved. Once that is certain, it can be used as an argument to prove what is uncertain. Your javelin was found in the body of the murdered man. He denies that it was his. If the point is to serve as a proof, it must itself be proved. It is, however, necessary in this connection to point out that there are no stronger proofs than those in which uncertainty has been converted into certainty. You committed the murder, for your clothes were stained with blood. This argument is not so strong if the accused admits that his clothes were bloodstained as if the fact is proved against his denial, for if he admits it there are still a number of ways in which the blood could have got onto his clothes. If, on the other hand, he denies it, he makes his whole case turn on this point, and if his contention is disproved, he will be unable to make a stand on any subsequent ground. For it will be thought that he would never have told a lie in denying the allegation unless he had felt it a hopeless task to justify himself if he admitted it. In insisting on our strongest arguments, we must take them singly, whereas our weaker arguments should be masked together, for it is undesirable that those arguments which are strong in themselves should have their force obscured by the surrounding matter, since it is important to show their true nature. On the other hand, arguments which are naturally weak will receive mutual support if grouped together. Consequently, arguments which have no individual force on the ground of strength will acquire force in virtue of their number, since all tend to prove the same thing. For instance, if one man is accused of having murdered another for the sake of his property, it may be argued as follows. You had expectations of succeeding to the inheritance, which was moreover very large. You were a poor man, and at the time in question were especially hard-pressed by your creditors. You had also offended him whose air you were, and knew that he intended to alter his will. These arguments are trivial and commonplace in detail, but their cumulative force is damaging. They may not have the overwhelming force of a thunderbolt, but they will have all the destructive force of hail. There are certain arguments which must not merely be stated, but supported as well. If we say, the motive for the crime was greed, we must show the force of greed as a motive. If we say that anger was the motive, we must show the suede this passion has over the minds of men. Thus our arguments will not only be strengthened, but will be more ornamental as well, since we shall have produced something more than a mere fleshless skeleton. It also makes an enormous difference, supposing that we allege hatred as the motive for a crime, whether such hatred was due to envy, injury, or unlawful influence, whether it was recent, or of long-standing, whether it was directed against an inferior, an equal, or a superior, against a stranger or a relative. There are special methods for the treatment of all these arguments, and the treatment to be selected will depend on the interests of the case which we are defending. On the other hand, we must not always burden the judge with all the arguments we have discovered, since by doing so, we shall at once bore him, and render him less inclined to believe us. For he will hardly suppose those proofs to be valid which we ourselves who produce them regard as insufficient. On the other hand, where the facts are fairly obvious, it would be as foolish to argue about them as to bring some artificial light into broad sunlight. To these proofs, some authorities would add those which they call pathetic, or emotional. Aristotle, indeed, holds that the strongest argument in support of a speaker is that he is a good man. This no doubt is the best support, but to seem good is also a value, though the semblance is but a bad second to the reality. Of this nature is the noble defense of Scorus. Quintus Varius of Sucro asserts that Emilius Scorus has betrayed the interests of the Roman people. Emilius Scorus denies it. A similar defense is said to have been employed by Ephikrates. He asks Aristophan, who was accusing him on a similar charge of treason, whether he would consent to betray his country for a bribe. When Aristophan replied in the negative, he continued, Have I then done what you would have refused to do? We must, however, take the character of the judge into consideration, and seek out such arguments as will appeal to him. I have already spoken of this in the rules which I laid down for the Exordium and for the Liberative Oratory. Another form of proof is provided by Asciteration, as in, I did this, you told me this, or, oh, outrageous crime and the like. Every pleading should contain some such assaverations. If it does not, the loss will be considerable. Still, assaverations must not be regarded as supports of the first importance, since they can be produced by either party in the same case with the same emphasis. A most forcible kind of proof is that drawn from character and supported by some plausible reason, as for instance, it is not likely that a wounded man or one who has lost his son would accuse anyone who is not guilty, since if he accused an innocent man, he would free the real offender from all risk of punishment. It is from such arguments that fathers seek support when pleading against their sons, or one relative against another. The further question has been raised as to whether the strongest arguments should be placed first to take possession of the judge's mind, or last to leave an impression upon it, or whether they should be divided between the commencement and close of the proof, adopting the hameric disposition of placing the weakest in the center of the column, so that they may derive strength from their neighbors. But in the disposition of our arguments, we must be guided by the interests of the individual case. There is only one exception to this general rule in my opinion, namely, that we should avoid descending from the strongest proofs to the weakest. I have been content to give a brief outline of my views concerning these points, and have put them forward in such a way as to show as clearly as was in my power the various topics and kinds of arguments. Others have dealt with the subject at greater length, preferring to deal with the whole subject of common places, and to show how each topic may be treated. This seems to me unnecessary, since it is, as a rule, obvious, what should be said against the injurious conduct or avarice of our opponents, or against a hostile witness or powerful friends. To say everything on all these subjects is an endless task, as endless in fact, as if I were to attempt to lay down rules for dealing with every dispute that can ever occur, and all the questions, arguments, and opinions thereby involved. I do not venture to suppose that I have pointed out all the circumstances that may give rise to arguments, but I think that I have done so in the majority of cases. This was a task which required all the more careful handling, because the declamations, which we used to employ as foils were with to practice for the duels of the forum, have long since departed from the true form of pleading, and owing to the fact that they are composed solely with the design of giving pleasure, have become flaccid and nervous. Indeed, the claimers are guilty of exactly the same offence as slave dealers, who castrate boys in order to increase the attractions of their beauty. For just as the slave dealer regards strength and muscle, and above all, the beard, and other natural characteristics of manhood as blemishes, and softens down all that would be sturdy if allowed to grow, on the ground that it is harsh and hard. Even so, we conceal the manly form of eloquence and power of speaking, closely and forcibly, by giving it a delicate complexion of style. And so long as what we say is smooth and polished, are absolutely indifferent as to whether our words have any power or not. But I take nature for my guide, and regard any man whatsoever as fairer to view than a new nook, nor can I believe that providence is ever so indifferent to what itself has created as to allow weakness to be an excellence, nor again can I think that the knife can render beautiful that which, if produced in the natural course of birth, would be regarded as a monster. A false resemblance to the female sex may in itself delight lust, if it will, but the privacy of morals will never acquire such ascendancy as to succeed in giving real value to that to which it has succeeded in giving a high price. Consequently, although this debauched eloquence, for I intend to speak with the utmost frankness, may please modern audiences, by its effeminate and voluptuous charms, I absolutely refuse to regard it as eloquence at all, for it retains not the slightest trace of purity and virility in itself, not to say of these qualities in the speaker. When the masters of sculpture in hand desired to carve or paint forms of ideal beauty, they never fell into the error of taking some bagoas or megabises as models, but rightly selected the well-known doriferous, equally adapted either for the fields of war or for the wrestling school, and other warlike and athletic youths as types of physical beauty. Shall we then, who are endeavoring to mold the ideal orator, equip eloquence not with weapons, but with timbrels? Consequently, let the youth whom we are training devote himself, as far as in him lies, to the imitation of truth, and in view of the fact that the battles of the forum that await him are not few, let him strive for victory in the schools and learn how to strike the vitals of his foe and protect his own, and let his instructor insist on his doing this above all else, and reserve his special approval for the master of this art. For though young men may be lured to evil practices by praise, they still prefer to be praised for what is right. At the present time, the misfortune is that teachers more often than not pass over what is necessary in silence, and utility is not accounted one of the good qualities of eloquence. But I have dealt with these points in another work, and shall often have to recur to them in this. I will now return to my prescribed course. Refutation may be understood in two senses. For the duty of the defense consists wholly in refutation, while whatever is said by our opponents must be rebutted whether we are speaking for the defense or the prosecution. It is in this sense that refutation is assigned the fourth place in pleadings, but the methods required in either case are identical. For the principles of argument in refutation can only be drawn from the same sources as those used in proof, while topics and thoughts, words and figures will all be on the same lines. As a rule, no strong appeal to the emotions is made in refutation. It is not, however, without reason that, as Cicero so often testifies, the task of defense has always been considered harder than that of prosecution. In the first place, accusation is a simpler task, for the charge is put forward in one definite form, but its refutation may take a number of different forms, since, as a rule, it is sufficient for the accuser that his charge should be true, whereas counsel for the defense may deny or justify the facts, raise the question of competence, make excuses, plead for mercy, soften, extenuate or divert the charge, express contempt or derision. The task of the accuser is consequently straightforward, and if I may use the phrase vociferous, but the defense requires a thousand arts and stratagems. Moreover, the prosecutor generally produces a speech which he has prepared at home, while the counsel for the defense has frequently to deal with quite unexpected points. The prosecutor brings forward his witnesses, while counsel for the defense has to refute the charge by arguments drawn from the case itself. The prosecutor draws his material from the odium excited by the charges, even though it have no justification, denouncing parasite, sacrilege or treason, whereas counsel for the defense can only deny them. Consequently, quite moderate speakers have proved adequate in prosecution, while no one can be a good counsel for the defense unless he possesses real eloquence. In a word, it is just so much easier to accuse than to defend as it is easier to inflict than to heal a wound. The nature of the arguments put forward by our opponent and the manner in which he produces them will, however, make an enormous difference to our task. We must therefore first consider what it is to which we have to reply, whether it is part and parcel of the actual case or has been introduced from circumstances lying outside the case, for in the former case we must deny or justify the facts or raise the question of competence, for these are practically the sole methods of defense available in the courts. Please, for mercy, which are not in any sense a method of actual defense can rarely be used and only before judges who are not limited to some precise form of verdict. Even those speeches delivered before Gaius Caesar and the triumvers on behalf of members of the opposite party, although they do employ such pleas for mercy, also make use of the ordinary methods of defense, for I think you will agree with me that the following passage contains arguments of a strongly defensive character. What was our object to burrow? Save that we might have the power that Caesar has now. But if, when pleading before the emperor or any other person who has power either to acquit or condemn, it is incumbent on us to urge that, while our client has committed an office that deserves the death penalty, it is still the duty of a merciful judge to spare him, despite his sins. It must be noted in the first place that we have to deal, not with our adversary, but with the judge, and secondly that we shall have to employ the deliberative rather than the forensic style, for we shall urge the judge to fix his desire rather on the glory that is won by clemency than on the pleasure that is given by vengeance. On the other hand, when we are pleading before judges who have to give their verdict in accordance with the prescriptions of law, it would be absurd to give them advice as to how they should deal with a criminal who admits his guilt. Consequently, when it is impossible either to deny the facts or to raise the question of competence, we must attempt to justify the facts as best we can, or else throw up the case. I have pointed out that there are two ways in which a fact can be denied. It can be denied absolutely, or it may be denied that a fact is of the nature alleged. When it is impossible to plead justification or to raise the question of competence, we must deny the facts, and that not merely when a definition of the facts will serve our case, but even when nothing except an absolute denial is left for us. If witnesses are produced, there is much that may be said to discredit them. If a document is put forward, we may hold forth on the similarity of the hand writings. In any case, there can be no worse course than confession of guilt. When denial and justification are both impossible, we must, as a last resort, base our defense on the legal point of competence. Still, there are some cases in which none of these three courses is possible. She is accused of adultery on the ground that after a widowhood of 12 months, she was delivered of a child. In this case, there is no ground for dispute. Consequently, I regard as the height of folly the advice that is given in such cases, that what cannot be defended should be ignored and passed over in silence, at any rate, if the point in question is that on which the judge has to give his decision. On the other hand, if the allegation is irrelevant to the actual case and no more than accessory, I should prefer simply to state that it has nothing to do with the question at issue, that it is not worth our attention, and that it has not the importance given to it by our opponent, though in such a case, I should be prepared to pardon a policy of ignoring the charge such as I have just mentioned. For a good advocate, I'll not be afraid of incurring a trivial censure for negligence if such apparent negligence is likely to save his client. We must further consider whether we should attack our opponent's arguments en masse or dispose of them singly. We shall adopt the former course if the arguments are so weak that they can be overthrown simultaneously or so embarrassing that it would be inexpedient to grapple with them individually. For in such a case, we must fight with all the force at our disposal and make a frontal attack. Sometimes, if it is difficult to refute the statements made by our opponents, we may compare our arguments with theirs, at least if by such a procedure it is possible to prove the superiority of our own. On the other hand, those arguments which rely on their cumulative force must be analyzed individually, as for example in the case which I cited above. You were the heir, you were poor, and were summoned by your creditors for a large sum. You had offended him and knew that he intended to change his will. The cumulative force of these arguments is damaging, but if you refute them singly, the flame which derived its strength from the mass of fuel will die down as soon as the material which fed it is separated. Just as if we divert a great stream into a number of channels, we may cross it where we will. We shall therefore adapt our method of refutation to the exigencies of our case, now dealing with individual arguments and now treating them in bulk. For, at times, we may include in a single proposition the refutation of an argument which our opponent has constructed of a number of different points. For instance, if the accuser alleged that the accused had a number of motives for committing a crime, we may make a general denial of the fact without dealing singly with each alleged motive, because the fact that a man has had a motive for committing a crime does not prove that he has actually committed it. It will, however, as a rule, be expedient for the prosecution to employ massed arguments and for the accused to refute them in detail. We must, however, also consider the manner in which we should refute the argument of our opponents. If his statements be obviously false, it will be sufficient to deny them. This is done by Cicero in the Procluentio, where he denies that the man alleged by the accuser to have fallen dead on the spot after drinking the contents of the cup died on the same day. Again, it requires no skill to rebut arguments which are obviously contradictory, superfluous or foolish, and consequently, I need give no examples nor instructions as to the method to be employed. There is also the type of charge which is known as obscure, where it is alleged that an act was committed in secret without witnesses or any evidence to prove it. This suffers from an inherent weakness, since the fact that our opponent can produce no proof is sufficient for our purpose. The same applies to arguments which are irrelevant to the case. It is, however, sometimes an orator's duty to make it appear that some argument of his opponent is contradictory or irrelevant or incredible or superfluous or really favorable to his own client. Opius is charged with having embezzled the supplies intended to feed the troops. It is a serious charge, but Cicero shows that it contradicts other charges, since the same accusers also charged Opius with desiring to corrupt the army by bribes. The accuser of Cornelius offers to produce witnesses to show that he read out the law when tribune. Cicero makes this argument superfluous by admitting it. Quintus Sicilius demands to be entrusted with the task of accusing Varys on the ground that he had been the latter's questor. Cicero actually makes this argument tell in his own favor. As regards other charges, they may all be dealt with by very similar methods, for they may be demolished either by conjecture when we shall consider whether they are true, by definition when we shall examine whether they are relevant to the case, by quality when we shall consider whether they are dishonorable, unfair, scandalous, inhuman, cruel, or deserve any other epithet coming under the head of quality. Such questions have to be considered, not merely in connection with the statement of the charges or the reasons alleged, but with reference to the nature of the case in its entirety. For instance, the question of cruelty is considered with regard to the charge of high treason brought against Rebirius by Labianus, of inhumanity in the case of Tibero who accused Ligarius when he was in exile and attempted to prevent Caesar from pardoning him, of arrogance as in the case of the charge brought against Opius on the strength of a letter of Cara. Similarly, it may be shown that charges are hasty, insidious, or vindictive. The strongest argument, however, which can be brought against a charge is that it involves peril to the community or to the judges themselves. We find an example of the former in the Prattulio where Cicero says, whoever laid down such a principle as this, or who could be allowed without grave peril to the community, to kill a man just because he asserts that he feared that he himself might be killed by him. An instance of the letter occurs in the Proopio where Cicero warns the judges at some length not to permit such an action to be brought against the equestrian order. On the other hand, there are certain arguments which at times may best be treated with contempt as being trivial or irrelevant. This course is frequently pursued by Cicero. Indeed, this affectation of indifference is sometimes carried so far that we trample disdainfully underfoot arguments which we should never succeed in refuting by counter-argument. Since, however, the majority of such arguments are based on similarity, we must make diligent search to discover if any discrepancy is to be found in what is put forward. It is easy to do this where points of law are concerned. For the law was drafted to cover cases quite other than the present, and consequently, it is all the easier to show the difference between case and case. As to parallels drawn from dumb animals or inanimate objects, they are easy to make light of. Examples drawn from facts, if damaging to our case, must be treated in various ways. If they are ancient history, we may call them legendary. While if they are undoubted, we may lay stress on their extreme dissimilarity, for it is impossible for two cases to be alike in every detail. For instance, in the case of Ahala, by whom Milius was killed, it is quoted to justify Nesica for the slaying of Tiberius Grecus. We may argue that Milius was endeavouring to make himself king, while all that Grecus had done was to bring forward laws in the interest of the people, and that while Ahala was master of the horse, Nesica was a private citizen. In the last resort, if all else proved unavailing, we must see if we can show that the action adduced as a parallel was itself unjustifiable. These remarks as to examples apply also to private decisions in the courts. With regard to my statement that the manner in which the accuser stated his charges was of importance, I would point out in this connection that if he had spoken but feebly, we may repeat his actual words, while if he has used bitter and violent language, we may restate the facts in milder terms, as he showed us in the procoronellio where he says, he put his hand to the tablet containing the law, and we do this in such a way as to defend our client. For instance, if our client is addicted to luxury, we may say, he has been charged with living in a somewhat too liberal style. So, too, we may call a mean man thrifty and aslandrous, tongue free. But we must never, under any circumstances, repeat our opponent's charges together with their proves, nor emphasize any of his points by amplifying them, unless we do so with a view to making light of them, as for instance in the following passage. You have been with the army, he says, and have not set foot in the forum for so many years, and do you now, on returning after so long an interval, seek to compete for a post of high dignity with those who have made the forum their home? Again, when we are replying to the accuser, we may sometimes set forth the whole charge, as Cicero does in the proscauro, with reference to the death of Bostor, where he virtually parodies the speech of his opponent. Or we may take a number of points raised in the course of the accusation and put them together as in the provareno. They have asserted that, when he was journeying with Pompilenus through a lonely stretch of country, he fell in with the slaves of Uncarious. The Pompilenus was then killed, and Varinas imprisoned on the spot, until such time as this man should indicate what he wished to be done with him. Such a procedure is useful, if the sequence effects alleged by the prosecution is incredible, and likely to lose its force by restatement. Sometimes, on the other hand, we may destroy the cumulative force of a number of statements by refuting them singly. In fact, this is generally the safest course. Sometimes, again, the different portions of our reply will be independent of one another, a case which requires no illustration. Common arguments are readily appropriated, not merely because they can be used by either party, but because they are of greater service to the speaker who is replying. For I shall not struple to repeat the warning which I have often given already. The speaker who is first to employ such an argument makes it tell against himself. For an argument must needs tell against a speaker if it be one which his opponent can use with effect. But, you say, it is not probable that a crime of this magnitude was designed by Marcus Cotta. Is it probable, then, that a crime of this magnitude was attempted by Opius? On the other hand, it is a task for a real artist to discover inconsistencies, real or apparent, in the speech of his opponent, though such inconsistencies are sometimes evident from the bare facts, as for instance in the case of Cilius, where Claudia asserts on the one hand that she lends Cilius money, which is an indication of great intimacy, and on the other hand that he got poisoned to murder her, which is a sign of violent hatred. Tuberow similarly accuses Ligarius of having been in Africa and complains that Ligarius refused to allow him to land in Africa. At times, however, some ill advised statement by our opponent will give us an opportunity of demolishing his arguments. This is especially likely to occur with speakers who have a passion for producing impressive thoughts, for the temptation to air their eloquence is such that they take no heed of what they have said already, being absorbed by the topic immediately before them to the detriment of the interests of the case as a whole. What is there likely to tell so heavily against Cilius as the stigma inflicted by the censors? What can be more damaging than the fact that Ignatius disinherited his son on the ground that he had been bribed to give a false verdict in the trial in which Cilius secured the condemnation of Opianicus, but Cicero shows that the two facts tell against one another. But, Asius, I would urge you to give the closest consideration to the following problem. Which do you desire to carry the greater weight, the judgment of the censors or of Ignatius? If the latter, you regard the judgment of the censors in other cases as counting for little, since they expel this same Nias Ignatius on whose authority you lay such stress from his place in the senate. On the other hand, if you attach most weight to the judgment of the censors, I must point out that the censors retained the younger Ignatius, whom his father disinherited by an act resembling a sensorial decision in his position as senator, although they had expelled his father. As regards errors such as the following, the fault is shown in their commission is out of all proportion to the skill required to deal with them. I refer to mistakes such as advancing a disputable argument as indisputable, a controversial point as admitted, a point common to a number of cases as peculiar to the case in hand, or the employment of trite, superfluous or incredible arguments. For careless speakers are liable to commit a host of errors. They will exaggerate a charge which has still got to be proved. They will argue about an act when the question is who committed it. They will attempt impossibilities, drop an argument as if it were complete, whereas it is scarcely begun. Speak of the individual in preference to the case, and attribute personal faults to circumstances, as for instance if a speaker should attack the Decemberate instead of Apius. They will also contradict what is obvious, speak ambiguously, lose sight of the main issue of the case, or give replies which have no relation to the charge as made. This latter procedure may, it is true, be occasionally employed when we have a bad case which requires to be supported by arguments drawn from matters foreign to the case. The trial of various provides an example. When accused of speculation it was alleged that he had shown courage and energy in his defense of Sicily against the pirates. The same rules apply to objections which we may have to meet. But there is one point which requires special attention, since in such cases many speakers fall into two very different faults. For some event in the courts will pass by such objections when raised by their opponents as troublesome and vexatious details, and contending themselves with the arguments which they have brought ready made from their study will speak as if their opponent did not exist. This error is of course far more common in the schools. For there, objections are not merely disregarded, but the subjects for declamation are generally framed in such a way that there is nothing to be said on the opposite side. On the other hand, there are some who suffer from excess of zeal, and think it their duty to reply to every word, and even every trifling reflection, a task which is at once endless and superfluous. For it is not the case but the pleader whom they are refuting. Personally, I should always prefer that a speaker should reveal his eloquence in such a way that, if what he says advances his case, the credit will be given to his talent, and not to the nature of his case. While, if what he says damages his case, the blame will attach to the case and not to his powers. Consequently, when we come across denunciations such as that directed against rulers for the obscurity of his language, or against Piso for his utter incapacity as a speaker, or against Antony for his lack of taste and his complete ignorance both of words and things, we shall give them our sanction as reasonable concessions to passion and just resentment, and as useful in stirring up hatred against those whom it is desired to render unpopular. The method of reply to our opponent's counsel should be on different lines. Sometimes, however, we are justified in attacking, not merely their manner of speaking, but also their character, their appearance, their gait or bearing. Indeed, in his attack on Quintius, Cicero does not confine himself to these topics, but even attacks his purple border toga that goes trailing to his heels, for Quintius had caused Cloentius grave embarrassment by his turbulent herrings. Sometimes, in order to dispel the unpopularity excited by a bitter criticism, the latter may be disposed of by a jest, as for example Cicero disposes of triaries. For to the allegation that the pillars destined for the house of Scoras were carried on wagons through the city streets, he replied, I got my pillars from the quarries of Alba and had them brought in paneers. Such tactics are more readily allowed against an accuser, for the duties of counsel for the defense sometimes force him to make such personal attacks. On the other hand, there is no objection to complaining of the conduct of the advocates on either side, so long as our complaint follows accepted practice and does not overstep the limits imposed by good manners. I refer to complaints such as that our opponents have abridged, obscured, or postponed the discussion of some point, or with deliberate cunning have avoided discussing it at all. A change in the tactics of defense is also often selected for censure. For example, Adias, in his speech against Cloentius, complains that Cicero insists on the letter of the law, and Eskenes, in his speech against Ctesiphon, complains that the Mostonis refuses to consider the legal aspect of the case. It is, however, necessary to issue a special warning to the claimers that they should not put forward opinions that can easily be met or assume that their opponent is a fool, as it is owing to our tendency to think that the subject matter of our speech may be drawn from our own fancy. Florid commonplaces and epigrams designed to bring down the house occur to our minds with the utmost readiness, with the result that we should do well to bear in mind these lines. A shrewd retort, could it be otherwise? A foolish question makes for smart replies. But such a practice will be fatal in the courts, where we have to answer our opponent and not ourselves. It is said that Esius, when asked why he did not turn advocate, in view of the extraordinary skill in making apt replies, which his tragedy revealed, replied that in his place the character said what he himself wanted them to say, whereas in the courts his adversaries would probably say just what he least wanted them to say. It is therefore ridiculous in exercises which prepare the student for the actual courts to consider what answer can be made before ever giving a thought to what the opposing council is likely to say. And the good teacher should command a pupil no less for his skill in thinking out arguments that may be put forward for the opposite side than in discovering arguments to prove his own case. Again, there is another practice which is always permissible in the schools, but rarely in the courts. For when we speak first as claimants in a real case, how can we raise objections, seeing that our opponent has so far said nothing? Still, many fall into this error, either because they have acquired the habit in declination or simply owing to a passion for hearing their own voice, thereby affording fine sport to those who reply. For sometimes the letter will remark sarcastically that they never said anything of the kind and have no intention of saying anything so idiotic, and sometimes that they are grateful for the admirable warning so kindly given by their opponent, but most often they will say, and this is the strongest line they can take, that their opponent would never have replied to objections which had never been raised had he not realized that these objections were justified and been driven to admit it by his consciousness of the fact. We may find an example of this in the Procluentio of Cicero. You have frequently asserted that you are informed that I intend to base my defense on the letter of the law. Really, I suppose that my friends have secretly betrayed me, and that there is one among those whom I believe to be my friends who reports my designs to my opponent, who gave you this information, who was the traitor, and to whom did I ever reveal my design? No one, I think, is to blame. It must have been the Lloyd self that told you. But there are some who, not content with raising imaginary objections, develop whole passages on such themes, saying that they know their opponents will say this and will proceed to argue thus and thus. I remember that Vibhia's Christmas in our own day disposed of this practice very neatly, for he was a humorous fellow with a very pretty wit. I do not make those objections which you attribute to me, he said. For what use would it be to make them twice? Sometimes, however, it may be possible to put forward something not unlike such objections, if some point included by our opponent in the depositions which he produces has been discussed among his advocates, for then we shall be replying to something which they have said, and not to an objection which has been invented by ourselves. Or, again, this will be possible, if the case is of such a nature that we are in position to state certain definite objections which are absolutely essential to our opponent's case. For instance, if stolen goods have been discovered in a house, the accused must of necessity allege, either that they were brought there without his knowledge or deposited with him or given to him. And we may therefore answer all these points, even although they have not been put forward. On the other hand, in the schools, we are quite justified in answering both statements and imaginary objections, for by these means we shall train ourselves at one and the same time for speaking either first or second. Unless we do this, we shall have no chance of employing objections, since there is no adversary to whom we can reply. There is another serious fault into which pleaders fall, the anxious over elaboration of points. Such a procedure makes his case suspect to the judges, while frequently arguments which, if stated without more ado, would have removed all doubt, lose their force owing to the delay caused by the elaborate preparations made for their introduction, due to the fact that the advocate thinks that they require additional support. Our order must therefore adopt a confident manner, and should always speak as if he thought his case admirable. This quality, like all other good qualities, is particularly evident in Cicero. For the extraordinary care which he takes gives the impression of confidence and carries such weight when he speaks that it does not permit us to feel the least doubt, and has all the force of genuine proof. Further, the advocate who knows what the strongest points in his own and his opponent's case will easily be able to decide what points it will be most necessarily for him to emphasize or to counter. As regards order, there is no part of a case which involves less trouble. For, if we are prosecuting, our first duty will be to prove our own case, our second to refute the arguments brought against it. If, on the other hand, we are defending, we must begin by refutation. But, from our answers to objections, fresh objections will arise, a process which may be carried to some length. The strokes of gladiators provide a parallel. If the first stroke was intended to provoke the adversary to strike, the second will lead to the third, while if the challenge be repeated, it will lead to the fourth stroke so that there will be two parries and two attacks. And the process may be prolonged still further. But refutation also includes that simple form of proof which I described above, based on an appeal to the emotions and mere assertion. For an example, see the words of scores which I have already quoted. Nay, I am not sure that this form of proof is not actually of more frequent occurrence when something is denied. It is, however, especially important for both parties that they should see where the main issue lies. For it often happens that the points raised in pleading are many, although those on which a decision is given are few. Such are the elements of the methods of proof and refutation, but they require to be embellished and supported by the powers of the speaker. For, although our arguments may be admirably adapted to express what we desire, they will nonetheless be slight and weak, unless the oratory makes a special effort to give them life. Consequently, the common places on the subject of witnesses, documentary evidence, arguments and the like, make a great impression on the minds of the judges, as also do those topics which are peculiar to the case, those I mean in which we praise or blame any action, or show that it is just or unjust, or make it seem more or less important, or more or less harsh than it really is. Of these topics, some are adapted to the comparison of individual arguments, other to the comparison of a number, while others may serve to influence the success or failure of the whole case. Some again, prepare the mind of the judge while others confirm it in opinions already formed, but such preparation or confirmation will sometimes apply to the whole case, sometimes only to particular portions, and must therefore be employed with due regard to circumstances. I am consequently surprised that there should be a violent dispute between the leaders of two opposite schools as to whether such common places should be applied to individual questions, which is the view of Theodorus, or whether the judge should be instructed in the facts before any appeal is made to his feelings, the latter being the view of Epilodorus, as though no middle course were possible and no regard were to be had to the exigencies of the case itself. Those who lay down such rules have no experience of speaking in the actual courts. The result being that textbooks composed in the calm leisure of the study are sadly upset by the necessities of forensic strife. For practically all those who have set forth the law of speaking, as though it were a profound mystery, have tied us down, not merely to fix topics for argument, but to definite rules as to how we should draw our conclusions. I propose, after making a few preliminary remarks on the subject, to give a frank expression of my own views, or, in other words, to set forth what I perceive to have been the practice of the most distinguished orators. End of Chapter 13