 Book 4, chapters 3 and 4 of On the Education of an Orator, by Quintilian, translated by H. E. Butler. This LibriVox recording is in the public domain. Chapter 3. In the natural order of things, the statement of facts is followed by the verification, for it is necessary to prove the points which were stated with the proof in view. But before I enter on this portion, I have a few words to say on the opinions held by certain rhetoricians. Most of them are in the habit, as soon as they have completed the statement of facts, of digressing to some pleasant and attractive topic with a view to securing the utmost amount of favor from their audience. This practice originated in the display of the schools of declamation, and then extended to the courts as soon as causes came to be pleaded, not for the benefit of the parties concerned, but to enable the advocates to flaunt their talents. I imagine that they fear that if the slender stream of concise statement, such as is generally required, were followed by the pugnacious tone inevitable in the arguing of the case, the speech would fall flat owing to the postponement of the pleasures of a more expensive eloquence. The objection to this practice lies in the fact that they do this without the slightest consideration of the difference between case and case, or reflecting whether what they are doing will in any way assist them on the assumption that it is always expedient and always necessary. Consequently, they transfer striking thoughts from the places which they should have occupied elsewhere and concentrate them in this portion of the speech, a practice which involves either the repetition of a number of things that they have already said, or their omission from the place which was really theirs owing to the fact that they have already been said. I admit, however, that this form of digression can be advantageously appended, not merely to the statement effects, but to each of the different questions, or to the questions as a whole, so long as the case demand, or at any rate, permitted. Indeed, such a practice confers great distinction and adornment on a speech, but only if the digression fits in well with the rest of the speech and follows naturally on what has preceded, not if it is thrust in like a wedge parting what should naturally come together. For there is no part of a speech so closely connected with any other as the statement with the proof, though, of course, such a digression may be intended as the conclusion of the statement and the beginning of the proof. There will therefore sometimes be room for digression. For example, if the end of the statement has been concerned with some specially horrible theme, we may embroider the theme as though our indignation must find immediate vent. This, however, should only be done if there is no question about the facts, otherwise, it is more important to verify your charge than to heighten it, since the horrible nature of a charge is in favor of the accused until the charge is proved. For it is just the most flagrant crimes that are the most difficult to prove. Again, a digression may be advantageous if, after setting forth the services rendered by your client to his opponent, you denounce the latter for his ingratitude, or after producing a variety of charges in your statement, you point out the serious danger in which the advancement of such charges is likely to involve you. But all of these digressions should be brief. For as soon as he has heard the facts set forth in order, the judge is in a hurry to get to the proof and desires to satisfy himself of the correctness of his impressions at the earliest possible moment. Further, care must be taken not to nullify the effects of the statement by diverting the minds of the court to some other theme and wearing them by useless delay. But though such digressions are not always necessary at the end of the statement, they may form a very useful preparation for the examination of the main question, for especially if, at first sight, it presents an aspect unfavorable to our case, if we have to support a harsh law or demand severe punishment. For this is the place for inserting what may be regarded as a second exordium, with a view to exciting or mollifying the judge or disposing him to land a favoring ear to our proofs. Moreover, we can do this with all the greater freedom and vehemence at this stage of the proceedings, since the case is already known to the judge. We shall therefore employ such utterances as emollients to soften the harder elements of our statement, in order that the ears of the jury may be more ready to take in what we have to say in the sequel, and to grant us the justice which we ask. For it is hard to persuade a man to do anything against the grain. It is also important on such occasions to know whether the judge prefers equity or a strict interpretation of the law, since the necessity for such digression will vary accordingly. Such passages may also serve as a kind of peroration after the main question. The Greeks call this parequasis, the Romans egressus or egressio, digression. They may, however, as I have said, be of various kinds and may deal with different themes in any portion of the speech. For instance, we may extoll persons or places, describe regions, record historical or even legendary occurrences. As examples, I may cite the praise of Sicily in the rape of prosopine in the Varines, or the famous recital of the virtues of Nea's Pompeias in the Procornelio, where the great order, as though the course of his eloquence had been broken by the mere mention of the General's name, interrupts the topic on which he had already embarked and digresses forthwith to sing his praises. Parequasis may, I think, be defined as the handling of some theme which must, however, have some bearing on the case in a passage that involves digression from the logical order of our speech. I do not see, therefore, why it should be assigned a special position immediately following on the statement effects any more than I understand why they think that the name is applicable only to digression where some statement has to be made, when there are so many different ways in which a speech may leave the direct route. For whatever we say that falls outside the five divisions of the speech already laid down is a digression, whether it expresses indignation, pity, hatred, rebuke, excuse, conciliation, or be designed to rebut invective. Other similar occasions for digression on points not involved by the question at issue arise when we amplify or abridge a topic, make any kind of emotional appeal or introduce any of those topics which add such charm and elegance to oratory, topics that is to say such as luxury, avarice, religion, duty, but these would hardly seem to be digressions as they are so closely attached to arguments on similar subjects that they form part of the texture of the speech. There are, however, a number of topics which are inserted in the midst of matter which has no connection with them, when, for example, we strive to excite, admonish, appease, and treat or praise the judge. Such passages are innumerable. Some will have been carefully prepared beforehand, while others will be produced to suit the occasion or the necessity of the moment, if anything extraordinary should occur in the course of our pleading, such as an interruption, the intervention of some individual or a disturbance. For example, this made it necessary for Cicero to digress even in the Exordium when he was defending Milo, as is clear from the short speech which he made on that occasion. For the orator who makes some preface to the main question or proposes to follow up his proofs with a passage designed to commend them to the jury, may digress at some length. On the other hand, if he breaks away in the middle of his speech, he should not be long in returning to the point from which he departed. Chapter 4 After the statement affects, some place the proposition which they regard as forming a division of a forensic speech. I have already expressed my opinion on this view, but it seems to me that the beginning of every proof is a proposition, such as often occurs in the demonstration of the main question and sometimes even in the annunciation of individual arguments, more especially of those which are called epiheremata, but for the moment I shall speak of the first kind. It is not always necessary to employ it. The nature of the main question is sometimes sufficiently clear without any proposition, especially if the statement affects ends exactly where the question begins. Consequently, the recapitulation generally employed in the case of arguments is sometimes placed immediately after the statement affects. The affair took place, as I have described, gentlemen. He that Lady Ambush was defeated, violence was conquered by violence, or rather I should say audacity was crushed by valor. Sometimes proposition is highly advantageous, more especially when the fact cannot be defended and the question turns on the definition of the fact, as for example in the case of the man who has taken the money of a private individual from a temple, we shall say, my client is charged with sacrilege. It is for you to decide whether it was sacrilege, so that the judge may understand that his sole duty is to decide whether the charge is tantamount to sacrilege. The same method may be employed in obscure or complicated cases, not merely to make the case clearer, but sometimes also to make it more moving. This effect will be produced if we at once support our pleading with some such words as a following. It is expressly stated in the law that for any foreigner who goes up onto the wall the penalty is death. You are undoubtedly a foreigner, and there is no question but that you went up onto the wall. The conclusion is that you must submit to the penalty. For this proposition forces a confession upon our opponent, and to a certain extent accelerates the decision of the court. It does more than indicate the question, it contributes to its solution. Propositions may be single, double or manifold. This is due to more than one reason. For several charges may be combined, as when Socrates was accused of corrupting the youth and of introducing new superstitions. While single propositions may be made up of a number of arguments, as for instance when Eskenes is accused of misconduct as an ambassador, on the ground that he lied, failed to carry out his instructions, wasted time and accepted bribes. The defense may also contain several propositions. For instance, against a claim for money we may urge, your claim is invalid, for you had no right to act as agent, nor had the party whom you represent any right to employ an agent. Further, he is not the heir of the man from whom it is asserted that I borrowed the money, nor am I his debtor. These propositions can be multiplied at pleasure, but it is sufficient to give an indication of my meaning. If propositions are put forward singly with the proofs appended, they will form several distinct propositions. If they are combined, they are all under the head of partition. A proposition may also be put forward unsupported, as is generally done in conjectural cases. The formal accusation is one of murder, but I also charge the accused with theft. Or it may be accompanied by a reason. Ius Cornelius is guilty of an offense against the state, for when he was tribune of the plebs, he himself read out his bill to the public assembly. In addition to these forms of proposition, we can also introduce a proposition of our own, such as I accuse him of adultery, or may use the proposition of our opponent, such as the charge brought against me is one of adultery. Or finally, we may employ a proposition which is common to both sides, such as the question and dispute between myself and my opponent is which of the two is next of kin to the deceased who died interstate. Sometimes we may even couple contradictory propositions, as for instance, I say this, my opponent says that. We may at times produce the effect of a proposition, even though it is not in itself a proposition, by adding after the statement of facts some phrase such as the following. These are the points on which you will give your decision, thereby reminding the judge to give special attention to the question and giving him a fillip to emphasize the point that we have finished the statement of facts and are beginning the proof, so that when we start to verify our statements he may realize that he has reached a fresh stage where he must begin to listen with renewed attention. CHAPTER V Partition may be defined as the enumeration in order of our own propositions, those of our adversary or both. It is held by some that this is indispensable on the ground that it makes the case clearer and the judge more attentive and more ready to be instructed if he knows what we are speaking about and what we are going subsequently to speak about. Others on the contrary think that such a course is dangerous to the speaker on two grounds, namely that sometimes we may forget to perform what we have promised and may on the other hand come upon something which we have omitted in the partition. But this will never happen to anyone unless he is either a fool or has come into court without thinking out his speech in detail beforehand. Besides, what can be simpler or clearer than a straightforward partition? It follows nature as a guide and the adhesion to a definite method is actually of the greatest assistance to the speaker's memory. Therefore, I cannot approve the view even of those who lay down that partition should not extend beyond the length of three propositions. No doubt there is a danger if our partition is too complicated, that it may slip the memory of the judge and disturb his attention. But that is no reason why it should be tied down to a definite number of propositions, since the case may quite conceivably require more. There are further reasons why we should sometimes dispense with partition. In the first place, there are many points which can be produced in a more attractive manner, if they appear to be discovered on the spot, and not to have been brought ready made from our study, but rather to have sprung from the requirements of the case itself while we were speaking. Thus, we get those not-umpleasing figures, such as, It has almost escaped me, I had forgotten, or you do well to remind me. For if we set forth all that we propose to prove in advance, we shall deprive ourselves of the advantage springing from the charm of novelty. Sometimes we shall even have to hoodwink the judge, and work upon him by various artifices, so that he may think that our aim is other than it really is. For there are cases when a proposition may be somewhat startling. If the judge foresees this, he will shrink from it in advance, like a patient who catches sight of the surgeon's knife before the operation. On the other hand, if we have given him no preliminary notice, and our words take him unawares without his interest in them having been previously roused by any warning, we shall gain a credence which we should not have secured had we stated that we were going to raise at point. At times we must not merely avoid distinguishing between the various questions, but must omit them altogether, while our audience must be distracted by appeals to the emotion and their attention diverted. For the duty of the orator is not merely to instruct. The power of eloquence is greatest in emotional appeals. Now, there is no room for passion if we devote our attention to minute and microscopic division at a time when we are seeking to mislead the judgment of the person who is trying the case. Again, there are certain arguments which are weak and trivial when they stand alone, but which have great force when produced in a body. We must therefore concentrate such arguments, and our tactics should be those of a sudden charge in mass. This however is a practice which should be resorted to but rarely, and only under extreme necessity when reason compels us to take a course which is apparently irrational. In addition, it must be pointed out that in any partition there's always some one point of such special importance that when the judge has heard it, he's impatient with the remainder, which he regards as superfluous. Consequently, if we have to prove or refute a number of points, partition will be both useful and attractive, since it will indicate in order what we propose to say on each subject. On the other hand, if we are defending one point on various grounds, partition will be unnecessary. If you were to make a partition such as the following, I will not say that the character of my client is such as to render him incapable of murder. I will only say that he had no motive for murder, and that at the time when the deceased was killed, he was overseas. In that case, all the proofs which you propose to bring before this, the final proof, must need seem superfluous to the judge, for the judge is always in a hurry to reach the most important point. If he has a patient disposition, he will merely make a silent appeal to the advocate, whom he will treat as bound by his promise. On the other hand, if he's busy or holds exalted position or is intolerant by nature, he will insist in no very courteous manner on his coming to the point. For these reasons, there are someone who disapprove of the partition adopted by Cicero in the Procluentio, where he premises that he is going to show first that no man was ever arraigned for greater crimes or on stronger evidence than O'Pianicus, secondly that previous judgments had been passed by those very judges by whom he was condemned, and finally that Cluentius made no attempt to bribe the jury, but that his opponent did. They argue that if the third point can be proved, there is no need to have urged the two preceding. On the other hand, he will find no one so unreasonable or so foolish as to deny that the partition in the Promorena is admirable. I understand, gentlemen, that the accusation falls into three parts. The first is percing my client's character, the second dealing with his candidature for the magistracy, and the third with charges of bribery. These words make the case as clear as possible, and no one division renders any other superfluous. There are also a number who are in doubt as to a form of defense which I may exemplify as follows. If I murdered him, I did right, but I did not murder him. What they ask is the value of the first part, if the second can be proved, since they are mutually inconsistent, and if anyone employs both arguments we should believe neither. His contention is partially justified, we should employ the second alone, only if the fact can be proved without a doubt. But if we have any doubt as to being able to prove the stronger argument, we shall do well to rely on both. Different arguments move different people. He who thinks that the act was committed may regard it as a just act, while he who is deaf to the plea that the act was just may perhaps believe that it was never committed. Anyone who is confident of his powers as a marksman may be content with one shaft, whereas he who has no such confidence will do well to launch several, and give fortune a chance to come to his assistance. Cicero in the Promilone reveals the utmost skill in showing first that Claudius laid an ambush for Milo, and then, in adding as a supernumerary argument that even if he had not done so, he was nevertheless so bad a citizen that his slaying could only have done credit to the patriotism of this lair, and redounded to his glory. I would not however entirely condemn the order mentioned above, since there are certain arguments which, though hardened themselves, may serve to soften those which come after. The proverb, if you want to get your due, you must ask for something more, is not wholly unreasonable. Still, no one should interpret it to mean that you must stop short of nothing. For the Greeks are right when they lay down as a rule that we should not attempt the impossible. But whenever the double-barrel defense of which I am speaking is employed, we must aim at making the first argument support the credibility of the second, for he who might without danger to himself have confessed to the commission of the act can have no motive for lying when he denies the commission. Above all, it is important, whenever we suspect that the judge desires a proof other than that on which we are engaged, to promise that we will satisfy him on the point fully and without delay, more especially if the question is one of our client's honor. But it will often happen that a discreditable case has the law on its side, and to prevent the judge giving us only a grudging and reluctant hearing on the point of law, we shall have to warn them with some frequency that we shall shortly proceed to defend our client's honor and integrity if they will only wait a little and allow us to follow the order of our proofs. We may also, at times, pretend to say certain things against the wishes of our clients, as Cicero does in the Procluentio when he discusses the law dealing with judicial corruption. Occasionally, we may stop as though interrupted by our clients, while often we shall address them and exhort them to let us act as we think best. Thus, we shall make a gradual impression on the mind of the judge and, buoyed up by the hope that we are going to clear our client's honor, he will be less ill-disposed towards the harder portions of our proof. And when he has accepted these, he will be all-readier to listen to our defense of our client's character. Thus, the two points will render mutual assistance to each other. The judge will be more attentive to our legal proofs owing to his hope that we shall proceed to a vindication of character, and better disposed to accept that vindication because we have proved our point of law. But although partition is neither always necessary nor useful, it will, if judiciously employed, greatly add to the lucidity and grace of our speech. For it not only makes our arguments clearer by isolating the points from the crowd in which they would otherwise be lost and placing them before the eyes of the judge, but relieves his attention by assigning a definite limit to certain parts of our speech, just as our fatigue upon a journey is relieved by reading the distances on the milestones which we pass. For it is a pleasure to be able to measure how much of our task has been accomplished, and the knowledge of what remains to do stimulates us to fresh effort over the labor that still awaits us. For nothing needs seem long when it is definitely known how far it is to the end. Quintus Hortensius deserves the high praise which has been awarded him for the care which he took over his partitions, although Cicero more than once indulges in kindly mockery of his habit of counting his headings on his fingers. For there is a limit to gesture, and we must be especially careful to avoid excessive minuteness and any suggestion of articulated structure in our partition. If our divisions are too small, they cease to be limbs and become fragments, and consequently detract not a little from the authority of our speech. Moreover, those who are ambitious of this sort of reputation, in order that they may appear to enhance the nicety and the exhaustive nature of their division, introduce what is superfluous and subdivide things which naturally form a single whole. The result of their labors is, however, not so much to increase the number of their divisions as to diminish their importance, and after all is done and they have split up their argument into a thousand tiny compartments, they fall into that very obscurity which the partition was designed to eliminate. The proposition, whether single or multiple, must, on every occasion when it can be employed with profit, be clear and lucid. For what could be more discreditable than that a portion of the speech whose sole purpose is to prevent obscurity elsewhere should itself be obscure? Secondly, it must be brief and must not be burdened with a single superfluous word, for we are not explaining what we are saying but what we are going to say. We must also ensure that it is free alike from omissions and from redundants. Redundants, as a rule, occurs through our dividing into species when it would be sufficient to divide into genera or through the addition of species after stating the genus. The following will serve as an example. I will speak of virtue, justice and abstinence. But justice and abstinence are species of the genus virtue. Our first partition will be between admitted and disputed facts. Admitted facts will then be divided into those acknowledged by your opponent and those acknowledged by yourselves. Disputed facts will be divided into those which we and those which our opponents allege. But the worst fault of all is to treat your points in an order different from that which was assigned them in your proposition. End of chapter 5. Book 5, chapters 1 to 6 of On the Education of an Orator by Quintilian, translated by H. E. Butler. This LibriVox recording is in the public domain. Book 5, Preface. There have been certain writers of no small authority who have held that the sole duty of the orator was to instruct. In their view, appeals to the emotions were to be excluded for two reasons. First, on the ground that all disturbance of the mind was a fault. And secondly, that it was wrong to distract the judge from the truth by exciting his pity, bringing influence to bearer and the like. Further, to seek to charm the audience when the aim of the orator was merely to win success was, in their opinion, not only superfluous for a pleader but hardly worthy of a self-respecting man. The majority, however, while admitting that such arts undoubtedly formed part of oratory, held that its special and peculiar task is to make good the case which it maintains and refute that of its opponent. Whichever of these views is correct, for at this point I do not propose to express my own opinion, they will regard this book as serving a very necessary purpose since it will deal entirely with the points on which they lay such stress, although all that I have already said on the subject of judicial causes is subservient to the same end. For the purpose of the exhortium and the statement of facts is merely to prepare the judge for these points, while it would be a work of supererogation to know the basis of cases or to consider the other points dealt with above unless we intend to proceed to the consideration of the proof. Finally, of the five parts into which we divided judicial cases, any single one other than the proof may, on occasion, be dispensed with. But there can be no suit in which the proof is not absolutely necessary. With regard to the rules to be observed in this connection, we shall, I think, be wisest to follow our previous method of classification and show first what is common to all cases, and then proceed to point out those which are peculiar to the several kinds of cases. To begin with, it may be noted that the division laid down by Aristotle has met with almost universal approval. It is to the effect that there are some proofs adopted by the orator which lie outside the art of speaking, and others which he himself deduces, or, if I may use the term, begets out of his case. The former, therefore, have been styled atechnoi or inartificial proofs, the latter entechnoi or artificial. To the first class belong decisions of previous courts, rumors, evidence extracted by torture, documents, oaths and witnesses, for it is with these that the majority of forensic arguments are concerned. But, though in themselves they involve no art, all the powers of eloquence are, as a rule, required to disparage or refute them. Consequently, in my opinion, those who would eliminate the whole of this class of proof from their rules of oratory deserve the strongest condemnation. It is not, however, my intention to embrace all that can be said for or against these views. I do not, for instance, propose to lay down rules for common places, a task requiring infinite detail, but merely to sketch out the general lines and method to be followed by the orator. The method once indicated it is for the individual orator, not merely to employ his powers on its application, but on the invention of similar methods, as the circumstances of the case may demand. For it is impossible to deal with every kind of case, even if we confine ourselves to those which have actually occurred in the past without considering those which may occur in the future. Chapter 2 As regards decisions in previous courts, these fall under three heads. First, we have matters on which judgment has been given, at some time or other, in cases of a similar nature. These are, however, more correctly termed precedents, as for instance, where a father's will has been annulled or confirmed in opposition to his son's. Secondly, there are judgments concerned with the case itself. It is from these that the name Praiudicium is derived. As examples, I may cite those passed against Opianicus or by the Senate against Milo. Thirdly, there are judgments passed on the actual case, as for example, in cases where the accused has been deported or where renewed application is made for the recognition of an individual as a free man or in portions of cases tried in the centumveral court, which come before two different panels of judges. Such previous decisions are, as a rule, confirmed in two ways, by the authority of those who gave the decision and by the likeness between the two cases. As for the reversal, this can rarely be obtained by denouncing the judges, unless they have been guilty of obvious error. For each of those who are trying the case wishes the decision given by another to stand, since he too has to give judgment and is reluctant to create a precedent that may recoil upon himself. Consequently, as regards the first two cases, we must, if possible, take refuge in some dissimilarity between the two cases, and two cases are scarcely ever alike in all their details. If, however, such a course is impossible and the case is the same as that on which the previous decision was given, we must complain of the negligence shown in the conduct of the previous case or of the weakness of the parties condemned or of undue influence employed to corrupt the witnesses or, again, of popular prejudice or ignorance which reacted unfavorably against our client. Or else, we must consider what has occurred since to alter the aspect of the case. If none of these courses can be adopted, it will still be possible to point out that the peculiar circumstances of many trials have led to unjust decisions, hence condemnations such as that of Rutilius and acquittals such as those of Claudius and Catiline. We must also ask the judges to consider the facts of the case on their merits, rather than make their verdict the inevitable consequence of a verdict given by others. When, however, we are confronted by decrees of the Senate or ordinances of emperors or magistrates, there is no remedy, unless we can make out that the sum difference, however small, between the cases or that the same persons or persons holding the same powers have made some subsequent enactment reversing the former decision. Failing this, there will be no case for judgment. Chapter 3 With regard to rumor and common report, one party will call them the verdict of public opinion and the testimony of the world at large. The other will describe them as vague talk, based on no-sure authority, to which malignity has given birth and credulity increase, and ill to which even the most innocent of men may be exposed by the deliberate dissemination of falsehood on the part of their enemies. It will be easy for both parties to produce precedents to support their arguments. Chapter 4 A like situation arises in the case of evidence extracted by torture. One party will style torture an infallible method of discovering the truth, while the other will allege that it also often results in false confessions, since, with some, their capacity of endurance makes lying an easy thing, while with others, weakness makes it a necessity. It is hardly worth my while to say more on the subject, as the speeches, both of ancient and modern orators, are full of this topic. Individual cases may, however, involve special considerations in this connection. For, if the point at issue is whether torture should be applied, it will make all the difference who it is who demands or offers it, who it is that is to be subjected to torture, against whom the evidence thus sought will tell, and what is the motive for the demand. If, on the other hand, torture has already been applied, it will make all the difference who was in charge of the proceedings, who was the victim, and what the nature of the torture, whether the confession was credible or consistent, whether the witness stuck to his first statement or changed it under the influence of pain, and whether he made it at the beginning of the torture or only after it had continued some time. The variety of such questions is as infinite as the variety of actual cases. It is also frequently necessary to speak against documents, for it is common knowledge that they are often not merely rebutted, but even attacked as forgeries. But as this implies, either fraud or ignorance on the part of the signatories, it is safer and easier to make the charge one of ignorance, because by so doing we reduce the number of the persons accused. But our proceedings as a whole will draw their arguments from the circumstances of the case at issue. For example, it may be incredible that an incident occurred as stated in the documents, or, as more often happens, the evidence of the documents may be overthrown by other approves, which are likewise of an inartificial nature. If, for example, it is alleged that the person whose interests are prejudiced by the document, or one of the signatories was absent when the document was signed, or deceased before its signature, or if the dates disagree, or events preceding or following the writing of the document are inconsistent with it. Even a simple inspection of a document is often sufficient for the detection of forgery. Chapter 6 With regard to oaths, parties either offer to take an oath themselves or refuse to accept the oath of their opponent, demand that their opponent should take an oath, or refuse to comply with a similar demand when proffered to themselves. To offer to take an oath unconditionally without demanding that one's opponent should likewise take an oath is, as a rule, a sign of bad faith. If, however, anyone should take this course, he will defend his action by appealing to the blamelessness of his life as rendering perjury on his part incredible, or by the solemn nature of the oath, with regard to which he will win all the greater credence. If, without the least show of eagerness to take the oath, he makes it clear that he does not shrink from so solemn a duty. Or again, if the case is such as to make this possible, he will rely on the trivial nature of the point in dispute to win belief on the ground that he would not incur the risk of divine displeasure when so little is at stake. Or, finally, he may, in addition to the other means which he employs to win his case, offer to take an oath as a culminating proof of a clear conscience. The man who refuses to accept his opponent's offer to take an oath will allege that the inequality of their respective conditions are not the same for both parties, and will point out that many persons are not, in the least, afraid of committing perjury, even philosophers having been found to deny that the gods interfere in human affairs. And further, that he, who is ready to take an oath without being asked to do so, is really proposing to pass sentence on his own case and to show what an easy and trivial thing he thinks the oath which he offers to take. On the other hand, the man who proposes to put his opponent on oath appears to act with moderation, since he is making his adversary a judge in his own case, while he frees the actual judge from the burden of coming to a decision, since the latter would assuredly prefer to rest on another man's oath than on his own. This fact makes the refusal to take an oath all the more difficult, unless indeed the affair in question be of such a nature that it cannot be supposed that the facts are known to the person asked to take the oath. Failing this excuse, there is only one course open to him. He must say that his opponent is trying to excite a prejudice against him and is endeavoring to give the impression that he has real ground for complaint, though he is not in a position to win his case. Consequently, though a dishonest man would eagerly have availed himself of the proposal, he prefers to prove the truth of his statements rather than leave a doubt in anyone's mind as to whether he had committed perjury or no. But in my young days, advocates grown old in pleading used to lay down as a rule that we should never be in a hurry to propose that our opponent should take an oath, just as we should never allow him the choice of a judge, nor select our judge from among the supporters of the opposite side. For, if it is regarded as a disgrace to such a supporter to say anything against his client, it is surely a still worse disgrace that he should do anything that will harm his client's case. End of chapter 6 Book 5, chapter 7 of On the Education of an Orator by Quintilian, translated by H. E. Butler. This LibriVox recording is in the public domain. Chapter 7 It is however the evidence that gives the greatest trouble to advocates. Evidence may be given either in writing or orally by witnesses present in court. Documentary evidence is easier to dispose of, for it is likely that the opponent was less ashamed of himself in the presence of a small number of witnesses and his absence from court is attacked as indicating a lack of confidence. If we cannot call the character of the opponent in question, we may attack the witnesses to his signature. Further, there is always a certain tacit prejudice against documentary evidence, since no one can be forced to give such evidence save of his own free will, whereby he shows that he harbors unfriendly feelings towards the persons against whom he bears witness. On the other hand, an advocate should be cherry of denying that a friend may give true evidence against a friend or an enemy against an enemy, provided they are persons of unimpeachable credit, but the subject admits of copious discussions from whichever side it be regarded. The task of dealing with the evidence of witnesses present in court is, however, one of great difficulty and consequently, whether defending or impugning them, the orator employs a two-fold armory in the shape of a sad speech and examination. In sad speeches, it is usual to begin with observations either on behalf of or against witnesses in general. In so doing, we introduce a commonplace, since one side will contend that there can be no stronger proof than that which rests on human knowledge, while the other, in order to detract from their credibility, will enumerate all the methods by which false evidence is usually given. The next procedure is the common practice of making a special attack, which, all the same, involves impugning the validity of evidence given by large numbers of persons. We know, for instance, that the evidence of entire nations and whole classes of evidence have been disposed of by advocates. For example, in the case of hearsay evidence, it will be urged that those who produce such evidence are not really witnesses, but are merely reporting the words of unsworn persons, while in cases of extortion, those who swear that they paid certain sums to the accused are to be regarded not as witnesses, but as parties to the suit. Sometimes, however, the advocate will direct his speech against single individuals. Such a form of attack may be found in many speeches, sometimes embedded in the speech for the defense, and sometimes published separately, like the speech against the evidence of Vatinius. The whole subject, therefore, demands a thorough investigation, as the task which we have in hand is the complete education of an orator. Otherwise, the two books written on the subject by the misious author would suffice. I attended his lectures when he was old and I was young, and consequently have the advantage, not merely of having read his book, but of having heard most of his views from his own lips. He very justly lays down the rule that, in this connection, it is the first duty of an orator to make himself thoroughly acquainted with the case, a remark which, of course, applies to all portions of a speech. How such knowledge may be acquired, I shall explain when I come to the appropriate portion of this work. This knowledge will suggest material for the examination, and will supply weapons ready to the speaker's hand. It will also indicate to him the points for which the judge's mind must be prepared in the set speech. For it is by the set speech that the credit of witnesses should be established or demolished, since the effect of evidence on the individual judge depends on the extent to which he has been previously influenced in the direction of believing the witness or the reverse. And since there are two classes of witnesses, those who testify of their own free will, and those who are summoned to attend in the public courts, of whom the former are available to either party, the latter solely to the accusers, we must distinguish between the duties of the advocate who produces witnesses and the advocate who refutes them. He who produces a voluntary witness is in a position to know what he's likely to say. Consequently, the task of examining him would seem to be rendered easier. But even here such cases make a great demand on the acumen and watchfulness of the advocate, who must see that his witness is neither timid, inconsistent nor imprudent. For the opposing counsel have a way of making a witness lose his head, or of leading him into some trap, and once a witness trips, he does more harm to his own side than he would have done good, had he retained his composure and presence of mind. The advocate must therefore put his witnesses through their paces thoroughly, in private, before they appear in court, and must test them by a variety of questions such as may well be put to them by his opponent. The result will be that they will not contradict themselves, or, if they do make some slip, can be set upon their feet again by a timely question from the advocate who produces them. Still, even in the case of witnesses whose evidence is consistent, we must be on our guard against treachery. For such witnesses are often put up by one's opponent, and, after promising to say everything that will help our case, give answers of exactly the opposite character, and carry more weight by the admission of facts which tell against us than they would have done had they disproved them. He must therefore discover what motives they have for doing our opponent a hurt, and the fact that they were once his enemies will not suffice our purpose. He must find out whether they have ceased to be ill-disposed to him, or whether they desire by means of their evidence to effect a reconciliation with him, in order to assure ourselves that they have not been bribed or repented of their previous attitude and change their purpose. Such precautions are necessary even with witnesses who know that what they propose to say is true, but it is still more necessary with those who promise to give false evidence. For experience shows that they are more likely to repent of their purpose, their promises are less to be relied on, and, if they do keep their promise, their evidence is easier to refute. Witnesses appearing in a way to a subpoena may be divided into two classes, those who desire to harm the accused and those who do not. The accuser sometimes is aware of their disposition, sometimes unaware. For the moment, let us assume that he is aware of their disposition, although I must point out that in either case, the utmost skill is required in their examination. For, if an advocate is producing a witness who is desirous of harming the accused, he must avoid letting this desire become apparent, and must not at once proceed to question him on the point at issue. On the contrary, this point must be approached by a circuitous route, in such a manner as to make it seem that the statement which the witness is really desirous of making has been forced from him. Again, he should not press the witness too much, for fear he should impair his credit by the glibness with which he answers every question, but should draw from him just so much as may seem reasonable to elicit from a single witness. On the other hand, in the case of a witness who is reluctant to tell the truth, the essential for successful examination is to extort the truth against his will. This can only be done by putting questions which have all the appearance of irrelevance. If this be done, he will give replies which he thinks can do no harm to the party which he favors, and subsequently, will be led on from the admissions which he has made to a position which renders it impossible for him to deny the truth of the facts which he is reluctant to state. For just as in a sad speech, we usually collect detached arguments which in themselves seem innocuous to be accused, but taken together prove the case against him, so we must ask the reluctant witness a number of questions relative to acts antecedent or subsequent to the case, places, dates, persons, etc., with a view to luring him into some reply which will force him to make the admissions which we desire, or to contradict his previous evidence. If this fails, we must content ourselves with making it clear that he is reluctant to tell what he knows, and lead him with a view to tripping him up on some point or other, even though it be irrelevant to the case. We must also keep him in the witness box for an unusual length of time, so that by saying everything that can be said, and more than is necessary on behalf of the accused, he may be rendered suspect to the judge. Thus he will do the accused no less harm than if he had told the truth against him. But if, to proceed to our second supposition, the advocate does not know what the intentions of the witness may be, he must advance gradually, inch by inch, and sound him by examination, and lead him step by step to the particular reply which it is desired to elicit. But since these witnesses are sometimes so artful that their first replies are designed to meet the wishes of the questioner, in order to win all the greater credit when subsequently they answer in a very different way, it will be the duty of the advocate to dismiss a suspect witness while he can still do so with advantage. In the case of advocates for the defense, examination is, in some respects, easier, in some more difficult. It is more difficult because it is rarely possible for them to have any previous knowledge of what the witness is likely to say, and easier because when they come to cross-examine, they know what he has already said. Consequently, in view of the uncertainty involved, there is need for a careful angry, with a view to discovering the character of the witness against the accused, and what are his motives for hostility and what its extent. And all such points about the witness should be set forth in advance and disposed of, whether we desire to represent the evidence against the accused as instigated by hatred, envy, bribery, or influence. Further, if our opponent brings forward only a small number of witnesses, we must attack them on that head. If, on the other hand, they produce an excessive number, we must minimize their importance, while if they are powerful, we shall accuse our adversaries of bringing undue influence to bear. It will, however, be still more helpful if we expose the motives which they have for desiring to injure the accused, and these will vary according to the nature of the case and the party's concern. For the other lines of argument mentioned above are often answered by the employment of common places on similar lines, since the prosecutor, if he produced but few witnesses of inconspicuous rank, can parade the simple honesty of his methods on the ground that he had produced none, save those who are in position to know the real facts, while if he produced a number of distinguished witnesses, it is even easier to commend them to the court. But, at times, just as we have to praise individual witnesses, so we may have to demolish them, whether their evidence has been given in documentary form, or they have been summoned to appear in person. This was easier and of more frequent occurrence in the days when the examination of the witnesses was not deferred till after the conclusion of the pleading. With regard to what we should say against individual witnesses, no general rules can be laid down, it will depend on the personality of the witness. It remains to consider the technique to be followed in the examination of witnesses. The first essential is to know your witness, for a timid witness may be terrorized, a full outwitted, an arrestable man provoked, and vanity flattered. The shrewd and self-possessed witness, on the other hand, must be dismissed at once as being malicious and obstinate, or refuted, not by cross-examination, but by a brief speech from the counsel for the defense, or may be put out of countenance by some jest if a favorable opportunity presents itself, or if his past life admits of criticism, his credit may be overthrown by the scandalous charges which can be brought against him. It has been found advantageous at times when confronted with an honest and respectable witness to refrain from pressing him hard, since it is often the case that those who would have defended themselves manfully against attack are mollified by courtesy. But every question is either concerned with the case itself or with something outside the case. As regards to the first type, when counsel for the defense may, by adopting a method which I have already recommended for the prosecutor, namely by commencing his examination with questions of an apparently irrelevant and innocent character, and then by comparing previous with subsequent replies, frequently lead witnesses into such a position that it becomes possible to extort useful admissions from them against their will. The schools, it is true, give no instruction either as to theory or practice in the subject, and skill in examination comes rather from natural talent or practice. If, however, I am asked to point out a model for imitation, I can recommend but one, namely that which may be found in the dialogues of the socratics, and more especially of Plato, in which the questions put are so shrewd that although individually as a rule the answers are perfectly satisfactory to the other side, yet the questioner reaches the conclusion at which he is aiming. Fortune sometimes is so kind that a witness gives an answer involving some inconsistency while at times, and this is a more frequent occurrence, one witness contradicts another. But acute examination methodically conducted will generally reach the same result, which is so often reached by chance. There are also a number of points strictly irrelevant to the case on which questions may be put with advantage. We may, for example, ask questions about the past life of other witnesses, or about the witness's own character with a view to discovering whether they can be charged with some disgraceful conduct or degrading occupation, with friendship with the prosecutor or hostility toward the accused. Since, in replying to such questions, they may say something which will help our cause, or may be convicted of falsehood or of a desire to injure the accused. But above all, our examination must be circumspect, since a witness will often launch some smart repartee in answering counsel for the defense, and thereby win marked favor from the audience in general. Secondly, we must put our questions as far as possible in the language of everyday speech, that the witness, who is often an uneducated man, may understand our meaning, or at any rate, may have no opportunity of saying that he does not know what we mean, a statement which is apt to prove highly disconcerting to the examiner. I must, however, express the strongest disapproval of the practice of sending a subborn witness to sit on the benches of the opposing party. In order that on being called into the witness box from backwater, he may thereby do all the more damage to the case for the accused, by speaking against the party with whose adherence he was sitting, or, while appearing to help him by his testimony, deliberately giving his evidence in such an extravagant and exaggerated manner, as not only to detract from the credibility of his own statements, but to know the advantage derived from the evidence of those who were really helpful. I mention this practice not with a view to encourage it, but to secure its avoidance. Documentary evidence is frequently in conflict with oral. Such a circumstance may be turned to advantage by either side. For one party will rest its case on the fact that the witness is speaking on oath, the other on the unanimity of the signatories. Again, there is often a conflict between the evidence and the arguments. One party will agree that the witnesses know the facts and are bound by the sanctity of their oath, while the arguments are not but ingenious juggling with the facts. The other party will argue that witnesses are procured by influence, fear, money, anger, hatred, friendship, or bribery, whereas arguments are drawn from nature. In giving his assent to the latter, the judge is believing the voice of his own reason. In accepting the former, he is giving credence to another. Such problems are common to a number of cases, and are and always will be the subject of vehement debate. Sometimes there are witnesses on both sides, and the question arises with regard to themselves as to which are the more respectable in character, or with regard to the case which have given the more credible evidence, or with regard to the parties to the case which has brought the greater influence to bear on the witnesses. If to this kind of evidence anyone should wish to add evidence of the sword known as Supernatural, based on oracles, prophecies, and omens, I would remind him that there are two ways in which these may be treated. There is the general method, with regard to which there is an endless dispute between the adherence of the Stoics and the Epicureans as to whether the world is governed by Providence. The other is special, and is concerned with particular departments of the art of divination, according as they may happen to affect the question at issue. For the credibility of oracles may be established or destroyed in one way, and that of soothsayers, augurs, diviners, and astrologers in another, since the two classes differ entirely in nature. Again, the task of establishing or demolishing such evidence as the following will give the orator plenty to do. As for example, if certain words have been uttered under the influence of wine and sleep or in a fit of madness, or if information has been picked up from the mouths of children, whom the one party will assert to be incapable of invention, or the other will assert that they do not know what they are saying. The following method may not merely be used with great effect, but may even be badly missed when it is not employed. You gave me the money. Who counted it out? Where did this occur and from what source did the money come? You accused me of poisoning. Where did I buy the poison and from whom? What did I pay for it and whom did I employ to administer it? Who was my accomplice? Practically, all these points are discussed by Cicero in dealing with the charge of poisoning in the Procluentio. This concludes my observations upon inartificial proofs. I have stated them as briefly as I could. The second class of proofs are wholly the work of art, and consist of matters specially adapted to produce belief. They are, however, as a rule almost entirely neglected, or only very lightly touched on by those who, avoiding arguments as rugged and repulsive things, can find themselves to pleasanter regions, and, like those who, as poets tell, were bewitched by tasting a magic herb in the land of the lotus eaters, or by the song of the sirens into preferring pleasure to safety, follow the empty semblance of renown, and are robbed of that victory which is the aim of eloquence. And yet those other forms of eloquence, which have a more continuous sweep and flow, are employed with a view to assisting and embellishing the agreements, and produce the appearance of superinducing a body upon the sinews on which the whole case rests. Thus, if it is asserted that some act has been committed under the influence of anger, fear, or desire, we may expatiate at some length on the nature of each of these passions. It is by these same methods that we praise, accuse, exaggerate, attenuate, describe, deter, complain, console, or exhort. But such rhetorical devices may be employed in connection with matters about which there is no doubt, or at least which we speak of as admitted facts. Nor would I deny that there is some advantage to be gained by pleasing our audience, and a great deal by stirring their emotions. Still, all these devices are more effective when the judge thinks he has gained a full knowledge of the facts of the case, which we can only give him by argument, and by the employment of every other known means of proof. Before, however, I proceed to classify the various species of artificial proof, I must point out that there are certain features common to all kinds of proof, for there is no question which is not concerned either with things or persons, nor can there be any ground for argument save in connection with matters concerning things or persons, which may be considered either by themselves or with reference to something else. While there can be no proof except such as is derived from things consequent or things opposite, which must be sought for either in the time preceding, contemporaneous with, or subsequent to the alleged fact, nor can any single thing be proved saved by reference to something else which must be greater, less than, or equal to it. As regards arguments, they may be found either in the questions raised by the case, which may be considered by themselves quite apart from any connection with individual things or persons, or in the case of itself, when anything is discovered in it which cannot be arrived at by the light of common reason, but is peculiar to the subject on which judgment has to be given. Further, all proofs fall into three classes, necessary, credible, and not impossible. Again, there are four forms of proof. First, we may argue that, because one thing is another thing is not, as it is they and therefore not night. Secondly, we may argue that, because one thing is another thing is, as the sun is risen, therefore it is they. Thirdly, it may be argued that, because one thing is not another is, as it is not night, therefore it is day. Finally, it may be argued that, because one thing is not another thing is not, as he is not a reasoning being, therefore he is not a man. These general remarks will suffice by way of introduction, and I will now proceed to details. Chapter 9 Every artificial proof consists either of indications, arguments, or examples. I am well aware that many consider indications to form part of the arguments. My reasons for distinguishing them are twofold. In the first place, indications, as a rule, come under the head of inartificial proofs. For a bloodstained garment, a shriek, a dark blotch, and the like are all evidence analogous to the documentary or oral evidence and rumors. They are not discovered by the orator, but are given him with the case itself. My second reason was that indications, if indubitable, are not arguments, since they leave no room for question, while arguments are only possible in controversial matters. If, on the other hand, they are doubtful, they are not arguments, but require arguments to support them. The two first species into which artificial proofs may be divided are, as I have already said, those which involve a conclusion, and those which do not. The former are those which cannot be otherwise, and are called techmeria by the Greeks, because they are indications from which there is no getting away. These, however, seem to me scarcely to come under the rules of art. For, where an indication is irrefutable, there can be no dispute as to facts. This happens whenever there can be no doubt that something is being or has been done, or when it is impossible for it to be or have been done. In such cases, there can be no dispute as to the fact. This kind of proof may be considered in connection with past, present, or future time. For example, a woman who is delivered of a child must have had intercourse with a man, and the reference is to the past. When there is a high wind at sea, there must be waves, and the reference is to the present. When a man has received a wound in the heart, he is bound to die, and the reference is to the future. Nor again can there be a harvest where no seed has been sown. Nor can a man be at Rome when he is at Athens. Nor have been wounded by a sword when he has no scar. Some have the same force when reversed. A man who breathes is alive, and a man who is alive breathes. Some again cannot be reversed, because he who walks moves. It does not follow that he who moves walks. So to a woman who has not been delivered of a child may have had intercourse with a man. There may be waves without a high wind, and the man may die without having received the wound in the heart. Similarly, seed may be sown without a harvest resulting. A man who was never at Athens may never have been at Rome, and a man who has a scar may not have received a sword wound. There are other indications of a cotta, that is, probabilities, as the Greeks call them, which do not involve a necessary conclusion. These may not be sufficient in themselves to remove doubt, but may yet be of the greatest value when taken in conjunction with other indications. The Latin equivalent of the Greek semeon is signum, a sign, though some have called it indicium, an indication, or vestigium, a trace. Such signs or indications enable us to infer that something else has happened. Blood, for instance, may lead us to infer that a murder has taken place. But blood stains on a garment may be the result of the slaying of a victim at a sacrifice, or of bleeding at the nose. Everyone who has a blood stain on his clothes is not necessarily a murderer. But although such an indication may not amount to proof in itself, yet it may be produced as evidence in conjunction with other indications, such, for instance, as the fact that the man with the blood stain was the enemy of the murdered man, had threatened him previously, or was in the same place with him. Add the indication and question to these, and what was previously only a suspicion may become a certainty. On the other hand, there are indications which may be made to serve either party, such as livid spots, swellings which may be regarded as symptoms either of poisoning or of bad health, or a wound in the breast which may be treated as a proof of murder or of suicide. The force of such indications depends on the amount of extraneous support which they receive. Hermagoras would include among such indications as do not involve a necessary conclusion and arguments such as the following. Atalanta cannot be a virgin, as she has been roaming the woods in the company of young men. If we accept this view, I fear that we shall come to treat all inferences from a fact as indications. Nonetheless, such arguments are in practice treated exactly as if they were indications. Nor do the Aerophagites, when they condemned a boy for plucking out the eyes of quails, seem to have had anything else in their mind than the consideration that such conduct was an indication of a perverted character which might prove hurtful to many if he had been allowed to grow up. So, too, the popularity of Spirius Melius and Marcus Melius was regarded as an indication that they were aiming at supreme power. However, I fear that this line of reasoning will carry us too far. 4. If it is an indication of adultery that a woman bathes with men, the fact that she revels with young men or even an intimate friendship will also be indications of the same offense. Again, depilation of a lupus gait or womanish attire may be regarded as indications of effeminacy and unmendliness by anyone who thinks that such symptoms are the result of an immoral character, just as blood is a result of a wound. For anything that springs from the matter under investigation and comes to our notice may properly be called an indication. Similarly, it is also usual to give the names of signs to frequently observed phenomena, such as prognostics of the weather, which we may illustrate by the Virgilian, for wind turns Phoebe's face to ruddy gold, and the crow with full voice, good for not, invites the rain. If these phenomena are caused by the state of the atmosphere, such an appellation is correct enough, for if the moon turns red owing to the wind, her hue is certainly a sign of wind, and if, as the same poet infers, the condensation and rarefication of the atmosphere causes that concert of bird voices of which he speaks, we may agree in regarding it as a sign. We may further note that great things are sometimes indicated by trivial signs, witness the Virgilian crow. That trivial event, should be indicated by signs of greater importance, is, of course, no matter for wonder. CHAPTER X I now turn to arguments, the name under which we comprise the enthimemata, epihemata, and apodaxes of the Greeks, terms which, in spite of their difference, have much the same meaning. For the enthimemi, which we translate by commentum, or commentatio, there being no alternative, though it should be wiser to use the Greek name, has three meanings. Firstly, it means anything conceived in the mind. This is not, however, the sense of which I am now speaking. Secondly, it signifies a proposition with a reason, and thirdly, a conclusion of an argument, drawn either from denial of consequence or from incompatibles. Although, there is some controversy on this point. For there are some who style a conclusion from consequence and epiheme, while it will be found that the majority hold the view that an enthimemi is a conclusion from incompatibles, wherefore, corneficius styles it a contrarium or argument from contraries. Some again call it a rhetorical syllogism, others an incomplete syllogism, because its parts are not so clearly defined or of the same number as those of the regular syllogism, since such precision is not specially required by the orator. Valgius translates epiherema by aggresio, that is, an attempt. It would, however, in my opinion, be truer to say that it is not our handling of the subject, but the thing itself which we attempt, which should be called an epiherema, that is to say, the argument by which we try to prove something, in which, even if it has not yet been stated in so many words, has been clearly conceived by the mind. Others regard it not as an attempted or imperfect proof, but a complete proof falling under the most special species of proof. Consequently, according to its proper and most generally received appellation, it must be understood in the sense of a definite conception of some thought consisting of at least three parts. Some call an epiherema a reason, but Cicero is more correct in calling it a reasoning, although he too seems to derive this name from the syllogism rather than anything else, for he calls the syllogistic basis a racial-cinetive basis and quotes philosophers to support him. And, since there is a certain kinship between a syllogism and epihereme, it may be thought that he was justified in his use of the latter term. An apothexis is a clear proof, hence the use of the term gramikai apothexis, linear demonstrations by the geometricians. Cicilius holds that it differs from the epihereme solely in the kind of conclusion arrived at, and that an apothexis is simply an incomplete epihereme, for the same reason that we said an anthememe differed from a syllogism, for an epihereme is also part of a syllogism. Some think that an apothexis is a portion of an epihereme, namely the part containing the proof, but all authorities, however much they may differ on other points, define both in the same way, insofar as they call both a method of proving what is not certain by means of what is certain. Indeed, this is the nature of all arguments, for what is certain cannot be proved by what is uncertain. To all these forms of argument, the Greeks give the name of pistes, a term which, though the literal translation is fides, a warrant of credibility, is best translated by probatio, proof. But argument has several other meanings. For the plots of plays composed for acting in the theatre are called arguments, while Pedianus, when explaining the themes of the speeches of Cicero, says the argument is as follows. Cicero himself in writing to Brutus says, fearing that I might transfer something from that source to Myceto, although the argument is quite different. It is thus clear that all subjects for writing are so called, nor is this to be wondered at, since the term is also in common use among artists, hence the Virgilian phrase, a mighty argument. Again, a work which deals with a number of different themes is called rich in argument. But the sense with which we are now concerned is that which provides proof. Celsus, indeed, treats the terms, proof, indication, credibility, attempt, simply as different names for the same things, in which, to my thinking, he betrays a certain confusion of thought. For proof and credibility are not merely the result of logical processes, but may equally be secured by inartificial arguments. Now, I have already distinguished signs or, as he prefers to call them, indications from arguments. Consequently, since an argument is a process of reasoning which provides proof, and enables one thing to be inferred from another, and confirms facts which are uncertain by reference to facts which are certain, there must need to be something in every case which requires no proof, otherwise, there will be nothing by which we can prove anything. There must be something which either is or is believed to be true, by means of which doubtful things may be rendered credible. We may regard as certainties. First, those things which we perceive by the senses, things, for instance, that we hear or see, such as signs or indications. Secondly, those things about which there is general agreement, such as the existence of the gods or the duty of loving one's parents. Thirdly, those things which are established by law or have passed into current usage, if not throughout the whole world, at any rate, in the nation or state where the case is being pleaded. There are, for instance, many rights which rest not on law, but on custom. Finally, there are the things which are admitted by either party, and whatever has already been proved or is not disputed by our adversary. Thus, for instance, it may be argued that, since the world is governed by providence, the state should similarly be governed by some controlling power. It follows that the state must be so governed, once it is clear that the world is governed by providence. Further, the man who is to handle arguments correctly must know the nature and meaning of everything and their usual effects. Four, it is thus that we arrive at probable arguments or acotta, as the Greeks call them. With regard to credibility, there are three degrees. First, the highest, based on what usually happens, as for instance, the assumption that children are loved by their parents. Secondly, there is the highly probable, as for instance, the assumption that a man in the enjoyment of good health will probably live till tomorrow. The third degree is found where there is nothing absolutely against an assumption, such as that a theft committed in a house was the work of one of the household. Consequently, Aristotle, in the second book of his rhetoric, has made a careful examination of all that commonly happens to things or persons, as for instance, what is the natural result of wealth or ambition or superstition? What meets with the approval of good men? What is the object of a soldier's or a farmer's desires? And by what means everything is sought or shunned? For my part, I do not propose to pursue this subject. It is not nearly a long, but an impossible or rather an infinite task. Moreover, it is within the compass of the common understanding of mankind. If, however, anyone wishes to pursue the subject, I have indicated where he may apply. But all credibility, and it is with credibility that the great majority of arguments are concerned, turns on questions such as the following. Whether it is credible that a father has been killed by his son, or that a father has committed incest with his daughter, or to take questions of an opposite character, whether it is credible that a stepmother has poisoned her stepchild, or that a man of luxurious life has committed adultery, or again, whether a crime has been openly committed or false evidence given for a small bribe, since each of these crimes is the result of a special cast of character as a rule, though not always. If it were always so, there would be no room for doubt and no argument. Let us now turn to consider the places of arguments, although some hold that they are identical with the topics which I have already discussed above. But I do not use this term in its usual acceptance, namely common places, directed against luxury, adultery, and the like, but in the sense of the secret places where arguments reside, and from which they must be drawn forth. Four, just as all kinds of produce are not provided by every country, and as you will not succeed in finding a particular bird or beast, if you are ignorant of the localities where it has its usual haunts or birthplace, as even the various kinds of fish flourish in different surroundings, some preferring a smooth and others a rocky bottom, and are found on different shores and in diverse regions, you will for instance never catch a sturgeon or wrass in Italian waters, so not every kind of argument can be derived from every circumstance, and consequently our speech requires discrimination. Otherwise, we shall fall into a serious error, and after wasting our labor through lack of method, we shall fail to discover the argument which we desire, unless assisted by some happy chance. But if we know the circumstances which give rise to each kind of argument, we shall easily see when we come to a particular place what arguments it contains. Firstly then, arguments may be drawn from persons, for, as I have already said, all arguments fall into two classes, those concerned with things, and those concerned with persons, since causes, time, place, occasion, instruments, means, and the like, are all accidents of things. I have no intention of tracing all the accidents of persons, as many have done, but shall confine myself to those from which arguments may be drawn. Such are birth, for persons are generally regarded as having some resemblance to their parents and ancestors, a resemblance which sometimes leads to their living disgracefully or honorably, as the case may be. Then, there is nationality, for races have their own character, and the same action is not probable in the case of a barbarian, a Roman, and a Greek. Country is another, for there is a like diversity in the laws, institutions, and opinions of different states. Sex, since, for example, a man is more likely to commit a robbery, a woman to poison. Age, since different actions suit different ages. Education and training, since it makes a great difference who were the instructors, and what the method of instruction in each individual case. Body constitution, for beauty, is often introduced as an argument for lust, strength as an argument for insolence, and their opposites for opposite conduct. Fortune, since the same acts are not to be expected from rich and poor, or from one who is surrounded by troops of relations, friends or clients, and one who lacks all these advantages. Condition too is important, for it makes a great difference whether a man be famous or obscure, a magistrate or a private individual, a father or a son, a citizen or a foreigner, a free man or a slave, married or unmarried, a father or childless. Nor must we pass by natural disposition, for avarice, anger, pity, cruelty, severity, and the like may often be adduced to prove the credibility or the reverse of a given act. It is, for instance, often asked whether a man's way of living be luxurious, frugal or parsimonious. Then, there is occupation, since a rustic, a lawyer, a man of business, a soldier, a sailor, a doctor, all perform very different actions. We must also consider the personal ambitions of individuals, for instance, whether they wish to be thought rich or eloquent, just or powerful. Past life and previous utterances are also a subject for investigation, since we are in the habit of inferring the present from the past. To these some add passion, by which they mean some temporary emotion, such as anger or fear. They also add design, which may refer to the past, present or future. These latter, however, although accidents of persons, should be referred to that class of arguments which we draw from causes, as also should certain dispositions of mind, for example, when we inquire whether one man is the friend or enemy of another. Names also are treated as accidents of persons. This is perfectly true, but names are rarely food for argument, unless they have been given for some special reasons, such as the titles of wise, great, pious, or unless the name has suggested some special thought to the bearer. Lentilus, for instance, had the idea suggested to him by the fact that, according to the Sibylane books and the responses of the soothsayers, the tyranny was promised to three members of the Cornelian family, and he considered himself to be the third in succession to Sulla and Synna, since he too bore the name Cornelius. On the other hand, the conceit employed by Euripides, where he makes Italichles taunt his brother Polynesus on the ground that his name is evidence of character, is feeble in the extreme. Still, a name will often provide the subject for a jest, witness the frequent jests of Cicero on the name of Varys. Such, then, and the like are the accidents of persons. It is impossible to deal with them all either here or in other portions of this work, and I must content myself with pointing out the lines on which further enquiries should proceed. I now pass to things. Of these, actions are the most nearly connected with persons, and must therefore be treated first. In regard to every action, the question arises either why, or where, or when, or how, or by what means the action is performed. Consequently, arguments are drawn from the causes of past or future actions. The matter of these causes, by some called Hülle, by others Dunamis, falls into two genera, which are each divided into four species. For the motive for any action is, as a rule, concerned with the acquisition, increase, preservation, and use of things that are good, or with the avoidance, diminution, endurance of things that are evil, or with escape therefrom. All these considerations carry great weight in deliberative oratory as well, but right actions have right motives, while evil actions are the result of false opinions which originate in the things which men believe to be good or evil. Hence, spring errors and evil passions, such as anger, hatred, envy, desire, hope, ambition, audacity, fear, and others of a similar kind. To these accidental circumstances may often be added such as drunkenness or ignorance, which serve sometimes to excuse and sometimes to prove a charge, as for instance when a man is said to have killed one person while lying in wait for another. Further, motives are often discussed not nearly to convict the accused of the offense with which he is charged, but also to defend him when he contends that his action was right, that is to say, preceded from an honorable motive, a theme of which I have spoken more fully in the third book. Questions of definition are also at times intimately connected with motives, as a man a tyrannicide if he kills a tyrant by whom he has been detected in the act of adultery, or is he guilty of sacrilege, who tore down arms dedicated in a temple to enable him to drive the enemy from the city. Arguments are also drawn from place. With a view to proving our facts, we consider such questions as whether a place is hilly or level, near the coast or inland, planted or uncultivated, crowded or deserted, near or far, suitable for carrying out a given design or the reverse. This is a topic which is treated most carefully by Cicero in his promilone. These points and the like generally refer to questions of fact, but occasionally to questions of law as well. For we may ask whether a place is public or private, sacred or profane, our own or another's, just as where persons are concerned, we ask whether a man is a magistrate, a father, a foreigner. Hence arise such questions as the following. You have stolen private money, but since you stole it from a temple, it is not theft but sacrilege. You have killed adulterers, an act permitted by law, but since the act was done in a brothel, it is murder. You have committed an assault, but since the object of your assault was a magistrate, the crime is les majestés. Similarly, it may be urged in defense. The act was lawful because I was a father, a magistrate, but such points afford matter for argument when there is a controversy as to the facts, and matter for inquiry when the dispute turns on a point of law. Place also frequently affects the quality of an action, for the same action is not always lawful or seemly under all circumstances, while it makes considerable difference in what state the inquiry is taking place, for they differ both in custom and law. Further argument drawn from place may serve to secure approval or the reverse. Ajax, for example, in Ovid says, What? Do we plead our cause before the ships? And is Ulysses there a preferred to me? Again, one of the many charges brought against Milo was that he killed Claudius on the monument of his ancestors. Such arguments may also carry weight in deliberative oratory, as may those drawn from time which I shall now proceed to discuss. Time may, as I have said elsewhere, be understood in two different senses, general and special. The first sense is seen in words and phrases such as now, formally, in the reign of Alexander, in the days of the siege of Troy, and whenever we speak of past, present or future. The second sense occurs when we speak either of definite periods of time, such as in summer, in winter, by night, by day, or of fortuitous periods such as in time of pestilence, in time of war, during a banquet. Certain Latin writers have thought it a sufficient distinction to call the general sense time and the special times. In both senses, time is of importance in advisory speeches and demonstrative oratory, but not so frequently as in forensic. For questions of law turn on time, while it also determines the quality of actions and is of great importance in questions of fact. For instance, occasionally it provides irrefregable proves, which may be illustrated by a case which I have already cited, when one of the signatories to a document has died before the day on which it was signed, or when a person is accused of the commission of some crime, although he was only an infant at the time or not yet born. Further, all kinds of arguments may easily be drawn either from facts previous to a certain act or contemporary or subsequent. As regards antecedent facts, the following example will illustrate my meaning. You threatened to kill him. You went out by night. You started before him. Motives of actions may also belong to pastime. Some writers have shown themselves over-subtle in their classification of the second class of circumstances, making a sound was heard, an example of circumstances combined with an act, and a shout was raised, an instance of circumstances attached to an act. As regards subsequent circumstances, I may cite accusations such as, you hit yourself, you fled, livid spots and swellings appeared on the corpse. The counsel for the defense will employ the same divisions of time to discredit the charge which is brought against him. In these considerations are included everything in connection with words and deeds, but in two distinct ways. For some things are done because something else is like to follow, and others because something else has previously been done, as for instance when the husband of a beautiful woman is accused of having acted as a procurer on the ground that he bought her after she was found guilty of adultery, or when a debauched character is accused of parasite on the ground that he said to his father, you have rebuked me for the last time. For in the former case, the accused is not a procurer because he bought the woman, but bought her because he was a procurer, while in the latter the accused is not a parasite because he used these words, but used them because he intended to kill his father. With regard to accidental circumstances which also provide matter for arguments, these clearly belong to subsequent time, but are distinguished by a certain special quality, as for instance, if I should say, CPO was a better general than Hannibal, for he conquered Hannibal. He was a good pilot, for he was never shipwrecked. He was a good farmer, for he gathered in huge harvests. Or referring to bad qualities, he was a prodigal, for he squandered his patrimony. His life was disgraceful, for he was hated by all. We must also consider the resources possessed by the parties concerned, more especially when dealing with questions of fact, for it is more credible that a smaller number of persons were killed by a larger, a weaker party by a stronger, sleepers by men that were wide awake, the unsuspecting by the well-prepared, while the converse arguments may be used to prove the opposite. Such considerations arise both in deliberative and forensic oratory, in the latter they occur in relation to two questions, namely whether some given person had the will and whether he had the power to do the deed, for hope will often create the will to act. Hence the well-known inference in Cicero, Claudius lay in wait for Milo, not Milo for Claudius, for Claudius had a retinue of sturdy slaves, while Milo was with a party of women. Claudius was mounted, Milo in a carriage, Claudius lightly clad, Milo hampered by a cloak. With resources we make couple instruments which form part of resources and means, but sometimes instruments will provide us with indications as well, as for instance if we find a javelin sticking in a dead body. To these we may add manor, the Greek tropos, in regard to which we ask how a thing was done. Manor is concerned sometimes with quality and the letter of the law. We may for instance argue that it was unlawful to kill an adulterer by poison, sometimes with questions of fact, as for example if I argue that an act was committed with a good intent and therefore openly or with a bad intent and therefore treacherously by night in a lonely place. In all cases however, in which we enquire into the nature and meaning of an act and which can be considered by themselves apart from all considerations of persons and all else that gives rise to the actual cause, there are clearly three points to which we must give attention, namely whether it is, what it is, and of what kind it is. But as there are certain places of argument which are common to all three questions, this triple division is impracticable and we must therefore consider these questions rather in connection with those places in which they most naturally arise. Arguments then may be drawn from definition sometimes called finitio and sometimes finis. Definition is of two kinds. We may ask whether a particular quality is a virtue or make a definition precede and ask what is the nature of a virtue. Such a definition is either stated in general terms such as rhetoric is a science of speaking well or in detail such as rhetoric is a science of correct conception, arrangement and utterance coupled with a retentive memory and a dignified delivery. Further we may define a word by giving its content as in the preceding instances or by a terminology. We may for instance explain acidos by deriving it from az and do. Locoples by deriving it from copia locorum, pecuniosus from copia pecorum. Genus, species, difference and property seem more especially to afford scope for definition for we derive arguments from all of these. Genus is of little use when we desire to prove a species but of great value for its elimination. A tree is not necessarily a plain tree but that which is not a tree is certainly not a plain tree. Again, virtue is not necessarily the virtue of justice but that which is not a virtue is certainly not justice. We must proceed from the genus to the ultimate species for example to say that man is an animal will not suffice for animal merely gives us the genus nor yet will the addition of the words subject to death be adequate for although this epithet gives us a species it is common to other animals as well. If however we define men as a rational animal we need nothing further to make our mention clear. On the other hand, species will give us clear proof of genus but is of little service for its elimination. For example, justice is always a virtue but that which is not justice may still be a virtue such as fortitude constancy or self-control. Genus therefore cannot be eliminated by species unless all the species included in the genus be eliminated as for instance in the following sentence that which is neither rational nor mortal nor an animal is not a man. To these they add property and difference. Properties serve to establish definitions differences to overthrow them. A property is that which happens to one particular object and that alone. Speech and laughter for instance are properties of men or it may be something specially belonging to an object but not to it alone. Heating for instance is a property of fire. The same thing may also have a number of properties light and heat are both properties of fire. Consequently the omission of any property in a definition will impair it but the introduction of a property whatever it may be will not necessarily establish a definition. We have however often to consider what is a property of some given object. For example, if it should be asserted on the ground of a tomology that the peculiar property of a tyrannicide is to kill tyrants who should deny it. For an executioner is not Ipsofacto a tyrannicide if he executes a tyrant who has been delivered to him for the purpose. Nor again is he a tyrannicide who kills a tyrant unwittingly or against his will. What is not a property will be a difference. It is for instance one thing to be a slave and another to be in a state of servitude. Hence the distinction raised in connection with persons assigned to their creditors for debt. A slave if he is manumitted becomes a fridman but this is not the case with one who is assigned. There are also other points of difference which are dealt with elsewhere. Again the term difference is applied in cases when the genus is divided into species and one species is subdivided. Animal for instance is a genus mortal a species while terrestrial or biped is a difference for they are not actually properties but serve to show the difference between such animals and quadrupeds or creatures of the sea. This distinction however comes under the province not so much of argument as of exact definition. Cicero separates genus and species which letter he calls form from definition and includes them under relation. For example if a person to whom another man has left all his silver should claim all his silver money as well he would base his claim upon genus. On the other hand if when a legacy has been left to a married woman holding the position of mater familias it should be maintained that the legacy is not due to a woman who never came into the power of her husband. The argument is based on species since there are two kinds of marriage. Cicero further shows that definition is assisted by division which he distinguishes from partition making the letter the dissection of a whole into its parts and the former the division of a genus into its forms or species. The number of parts he regards as being uncertain as for instance the elements of which a state consists. The forms or species are however certain as for instance the number of forms of government which we are told are three democracy oligarchy and monarchy. It is true that he does not use these illustrations since as he was writing to Trebeches he preferred to draw his examples from law. I have chosen my illustrations as being more obvious. Properties have relation to questions of fact as well for instance it is the property of a good man to act rightly of an angry man to be violent in speech or action and consequently we believe that such acts are committed by persons of the appropriate character or not committed by persons of inappropriate character for just as certain persons possess certain qualities so certain others do not possess certain qualities and the argument is of precisely the same nature though from opposite premises. End of chapter 10 part 1