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Марк Туллий Цицерон
The Orations of Marcus Tullius Cicero, Volume 4

XVIII Now, if there be more matters to be defined,—as for instance, if we inquire whether he is a thief or a sacrilegious person who has stolen sacred vessels from a private house,—we shall have to employ many definitions, and then the whole cause will have to be dealt with on a similar principle. But it is a common topic to dwell on the wickedness of that man who endeavours to wrest to his own purposes not only the effect of things, but also the meaning of words, in order both to do as he pleases, and to call what he does by whatever name he likes.

Then the first topic to be used by an advocate for the defence, is also a brief and plain definition of a name, adopted in accordance with the opinion of men. In this way—To diminish the majesty of the people is to usurp some of the public powers when you are not invested with any office. And then the confirmation of this definition is derived from similar instances and similar principles. Afterwards comes the separation of one's own action from that definition. Then comes the common topic by which the expediency or honesty of the action is increased.

Then comes the reprehension of the definition of the opposite party, which is also derived from all the same topics as those which we have prescribed to the accuser. And afterwards other arguments will be adduced besides the common topic. But that will be a common topic for the advocate of the defence to use, by which he will express indignation that the accuser not only alters facts in order to bring him into danger, but that he attempts also to alter words. For those common topics which are assumed either for the purpose of demonstrating the falsehood of the accusations of the prosecutor, or for exciting pity, or for expressing indignation at an action, or for the purpose of deterring people from showing pity, are derived from the magnitude of the danger, not from the nature of the cause. Wherefore they are incidental not to every cause, but to every description of cause. We have made mention of them in speaking of the conjectural statement of a case, but we shall use induction when the cause requires.

XIX But when the pleading appears to require some translation, or to need any alteration, either because he is not pleading who ought to do so, or he is not pleading with the man he ought, or before the men whom he ought to have for hearers, or in accordance with the proper law, or under liability to the proper punishment, or in reference to the proper accusation, or at the proper time, it is then called a transferable statement of the case. We should require many examples of this if we were to inquire into every sort of translation, but because the principle on which the rules proceed is similar, we have no need of a superfluity of instances. And in our usual practice it happens from many causes that such translations occur but seldom. For many actions are prevented by the exceptions allowed by the praetors, and we have the civil law established in such a way that that man is sure to lose his cause who does not conduct it as he ought. So that those actions greatly depend on the state of the law. For there the exceptions are demanded, and an opportunity is allowed of conducting the cause in some manner, and every formula of private actions is arranged. But in actual trials they occur less frequently, and yet, if they ever do occur at all, they are such that by themselves they have less strength, but they are confirmed by the assumption of some other statement in addition to them. As in a certain trial which took place "When a certain person had been prosecuted for poisoning, and, because he was also accused of parricide, the trial was ordered to proceed out of its regular order, when in the accusation some charges were corroborated by witnesses and arguments, but the parricide was barely mentioned, it was proper for the advocate for the defence to dwell much and long on this circumstance, as, nothing whatever was proved respecting the death of the accused person's parent, and therefore that it was a scandalous thing to inflict that punishment on him which is inflicted on parricides, but that that must inevitably be the case if he were convicted, since that it is added as one of the counts of the indictment, and since it is on that account that the trial has been ordered to be taken out of its regular order. Therefore if it is not right that that punishment should be inflicted on the criminal, it is also not right that he should be convicted, since that punishment must inevitably follow a conviction." Here the advocate for the defence, by bringing the commutation of the punishment into his speech, according to the transferable class of topics, will invalidate the whole accusation. But he will also confirm the alteration by a conjectural statement of the case when employed in defending his client on the other charges.

XX But we may give an example of translation in a cause, in this way—When certain armed men had come for the purpose of committing violence, and armed men were also prepared on the other side, and when one of the armed men with his sword cut off the hand of a certain Roman knight who resisted his violence, the man whose hand had been cut off brings an action for the injury. The man against whom the action is brought pleads a demurrer before the praetor, without there being any prejudice to a man on trial for his life. The man who brings the action demands a trial on the simple fact, the man against whom the action is brought says that a demurrer ought to be added. The question is—"Shall the demurrer be allowed or not?" The reason is—"No, for it is not desirable in an action for damages that there should be any prejudged decision of a crime, such as is the subject of inquiry when assassins are on their trial." The arguments intended to invalidate this reason are—"The injuries are such that it is a shame that a decision should not be come to as early as possible." The thing to be decided is—"Whether the atrocity of the injuries is a sufficient reason why, while that point is before the tribunal, a previous decision should be given concerning some greater crime, concerning which a tribunal is prepared." And this is the example. But in every cause the question ought to be put to both parties, by whom, and by whose agency, and how, and when it is desirable that the action should be brought, or the decision given; or what ought to be decided concerning that matter.

That ought to be assumed from the divisions of the law, concerning which we must speak hereafter; and we then ought to argue as to what is usually done in similar cases, and to consider whether, in this instance, out of wickedness, one course is really adopted and another pretended; or whether the tribunal has been appointed and the action allowed to proceed through folly or necessity, because it could not be done in any other manner, or owing to an opportunity which offered for acting in such a manner; or whether it has been done rightly without any interruption of any sort. But it is a common topic to urge against the man who seeks to avail himself of a demurrer to an action, that he is fleeing from a decision and from punishment, because he has no confidence in the justice of his cause. And that, owing to the demurrer, everything will be in confusion, if matters are not conducted and brought into court as they ought to be; that is to say, if it is either pleaded against a man it ought not, or with an improper penalty, or with an improper charge, or at an improper time; and this principle applies to any confusion of every sort of tribunal. Those three statements of cases then, which are not susceptible of any decisions, must be treated in this manner. At present let us consider the question and its divisions on general principles.

XXI. When the fact and the name of the action in question is agreed upon, and when there is no dispute as to the character of the action to be commenced; then the effect, and the nature, and the character of the business is inquired into. We have already said, that there appear to be two divisions of this; one which relates to facts and one which relates to law. It is like this: "A certain person made a minor his heir, but the minor died before he had come into the property which was under the care of guardians. A dispute has arisen concerning the inheritance which came to the minor, between those who are the reversionary heirs of the father of the minor,—the possession belongs to the reversionary heirs." The first statement is that of the next of kin—"That money, concerning which he, whose next of kin we are, said nothing in his will, belongs to us." The reply is—"No, it belongs to us who are the reversionary heirs according to the will of his father." The thing to be inquired into is—To whom does it rightfully belong? The argument is—"For the father made a will for himself and for his son as long as the latter was a minor, wherefore it is quite clear that the things which belonged to the son are now ours, according to the will of the father." The argument to upset this is—"Aye, the father made his own will, and appointed you as reversionary heir, not to his son, but himself. Wherefore, nothing except what belonged to him himself can be yours by his will." The point to be determined is, whether any one can make a will to affect the property of his son who is a minor, or, whether the reversionary heirs of the father of the family himself, are not the heirs of his son also as long as he is a minor. And it is not foreign to the subject, (in order that I may not, on the one hand, omit to mention it, or, on the other, keep continually repeating it,) to mention a thing here which has a bearing on many questions. There are causes which have many reasons, though the grounds of the cause are simple, and that is the case when what has been done, or what is being defended, may appear right or natural on many different accounts, as in this very cause. For this further reason may be suggested by the heirs—"For there cannot be more heirs than one of one property, for causes quite dissimilar, nor has it ever happened, that one man was heir by will, and another by law, of the same property." This, again, is what will be replied, in order to invalidate this—"It is not one property only; because one part of it was the adventitious property of the minor, whose heir no one had been appointed by will at that time, in the case of anything happening to the minor, and with respect to the other portion of the property, the inclination of the father, even after he was dead, had the greatest weight, and that, now that the minor is dead, gives the property to his own heirs."

The question to be decided is, "Whether it was one property?" And then, if they employ this argument by way of invalidating the other, "That there can be many heirs of one property for quite dissimilar causes," the question to be decided arises out of that argument, namely "Whether there can be more heirs than one, of different classes and character, to one property?"

XXII Therefore, in one statement of the case, it has been understood how there are more reasons than one, more topics than one to invalidate such reasons, and besides that, more questions than one for the decision of the judge. Now let us look to the rules for this class of question. We must consider in what the rights of each party, or of all the parties (if there are many parties to the suit), consist. The beginning, then, appears derived from nature; but some things seem to have become adopted in practice for some consideration of expediency which is either more or less evident to us. But afterwards things which were approved of, or which seemed useful, either through habit, or because of their truth, appeared to have been confirmed by laws, and some things seem to be a law of nature, which it is not any vague opinion, but a sort of innate instinct that implants in us, as religion, piety, revenge for injuries, gratitude, attention to superiors, and truth. They call religion, that which is conversant with the fear of, and ceremonious observance paid to the gods; they call that piety, which warns us to fulfil our duties towards our country, our parents, or others connected with us by ties of blood, gratitude is that which retains a recollection of honours and benefits conferred on one, and acts of friendship done to one, and which shows itself by a requital of good offices, revenge for injuries is that by which we repel violence and insult from ourselves and from those who ought to be dear to us, by defending or avenging ourselves, and by means of which we punish offences, attention to superiors, they call the feeling under the influence of which we feel reverence for and pay respect to those who excel us in wisdom or honour or in any dignity, truth, they style that habit by which we take care that nothing has been or shall be done in any other manner than what we state. And the laws of nature themselves are less inquired into in a controversy of this sort, because they have no particular connexion with the civil law of which we are speaking and also, because they are somewhat remote from ordinary understandings. Still it is often desirable to introduce them for the purpose of some comparison, or with a view to add dignity to the discussion.

But the laws of habit are considered to be those which without any written law, antiquity has sanctioned by the common consent of all men. And with reference to this habit there are some laws which are now quite fixed by their antiquity. Of which sort there are many other laws also, and among them far the greatest part of those laws which the praetors are in the habit of including in their edicts. But some kinds of law have already been established by certain custom, such as those relating to covenants, equity, formal decisions. A covenant is that which is agreed upon between two parties, because it is considered to be so just that it is said to be enforced by justice, equity is that which is equal to all men, a formal decision is that by which something has been established by the declared opinion of some person or persons authorized to pronounce one. As for regular laws, they can only be ascertained from the laws. It is desirable, then, by trying over every part of the law, to take notice of and to extract from these portions of the law whatever shall appear to arise out of the case itself, or out of a similar one, or out of one of greater or less importance. But since, as has been already said, there are two kinds of common topics, one of which contains the amplification of a doubtful matter, and the other of a certain one, we must consider what the case itself suggests, and what can be and ought to be amplified by a common topic. For certain topics to suit every possible case cannot be laid down, and perhaps in most of them it will be necessary at times to rely on the authority of the lawyers, and at times to speak against it. But we must consider, in this case and in all cases, whether the case itself suggests any common topics besides those which we have mentioned.

Now let us consider the juridical kind of inquiry and its different divisions. XXIII The juridical inquiry is that in which the nature of justice and injustice, and the principle of reward or punishment, is examined. Its divisions are two, one of which we call the absolute inquiry, and the other the one which is accessory. That is the absolute inquiry which itself contains in itself the question of right and not right, not as the inquiry about facts does, in an overhand and obscure manner, but openly and intelligibly. It is of this sort.—When the Thebans had defeated the Lacedaemonians in war, as it was nearly universal custom among the Greeks, when they were waging war against one another, for those who were victorious to erect some trophy on their borders, for the sake only of declaring their victory at present, not that it might remain for ever as a memorial of the war, they erected a brazen trophy. They are accused before the Amphictyons, that is, before the common council of Greece. The charge is, "They ought not to have done so." The denial is, "We ought." The question is, "Whether they ought." The reason is, "For we gained such glory by our valour in that war, that we wished to leave an everlasting memorial of it to posterity." The argument adduced to invalidate this is, "But still it is not right for Greeks to erect an eternal memorial of then enmity to Greeks." The question to be decided is, "As for the sake of celebrating their own excessive valour Greeks have erected an imperishable monument of their enmity to Greeks, whether they have done well or ill?" We, therefore, have now put this reason in the mouth of the Thebans, in order that this class of cause which we are now considering might be thoroughly understood. For if we had furnished them with that argument which is perhaps the one which they actually used, "We did so because our enemies warred against us without any considerations of justice and piety," we should then be digressing to the subject of retorting an accusation, of which we will speak hereafter. But it is manifest that both kinds of question are incidental to this controversy. And arguments must be derived for it from the same topics as those which are applicable to the cause depending on matters of fact, which has been all ready treated of. But to take many weighty common topics both from the cause itself, if there is any opportunity for employing the language of indignation or complaint, and also from the advantage and general character of the law, will be not only allowable, but proper, if the dignity of the cause appears to require such expedients.

XXIV. At present let us consider the assumptive portion of the juridical inquiry. But it is then called assumptive, when the fact cannot be proved by its own intrinsic evidence, but is defended by some argument brought from extraneous circumstances. Its divisions are four in number: comparison, the retort of the accusation, the refutation of it as far as regards oneself, and concession.

Comparison is when any action which intrinsically cannot be approved, is defended by reference to that for the sake of which it was done. It is something of this sort:—"A certain general, when he was blockaded by the enemy and could not escape by any possible means, made a covenant with them to leave behind his arms and his baggage, on condition of being allowed to lead away his soldiers in safety. And he did so. Having lost his arms and his baggage, he saved his men, beyond the hopes of any one. He is prosecuted for treason." Then comes the definition of treason. But let us consider the topic which we are at present discussing.

The charge is, "He had no business to leave behind the arms and baggage." The denial is, "Yes, he had." The question is, "Whether he had any right to do so?" The reason for doing so is, "For else he would have lost all his soldiers." The argument brought to invalidate this is either the conjectural one, "They would not have been lost," or the other conjectural one, "That was not your reason for doing so." And from this arise the questions for decision: "Whether they would have been lost?" and, "Whether that was the reason why he did so?" Or else, this comparative reason which we want at this minute: "But it was better to lose his soldiers than to surrender the arms and baggage to the enemy." And from this arises the question for the decision of the judges: "As all the soldiers must have been lost unless they had come into this covenant, whether it was better to lose the soldiers, or to agree to these conditions?"

It will be proper to deal with this kind of cause by reference to these topics, and to employ the principles of, and rules for the other statements of cases also. And especially to employ conjectures for the purpose of invalidating that which those who are accused will compare with the act which is alleged against them as a crime. And that will be done if either that result which the advocates for the defence say would have happened unless that action had been performed which is now brought before the court, be denied to have been likely to ensue; or if it can be proved that it was done with a different object and in a different manner from that stated by the man who is on his trial. The confirmation of that statement, and also the argument used by the opposite party to invalidate it, must both be derived from the conjectural statement of the case. But if the accused person is brought before the court, because of his action coming under the name of some particular crime, (as is the case in this instance, for the man is prosecuted for treason), it will be desirable to employ a definition and the rules for a definition.

XXV. And this usually takes place in this kind of examination, so that it is desirable to employ both conjecture and definition. But if any other kind of inquiry arises, it will be allowable on similar principles to transfer to it the rules for that kind of inquiry. For the accuser must of all things take pains to invalidate, by as many reasons as possible, the very fact on account of which the person on his trial thinks that it is granted to him that he was right. And it is easy to do so, if he attempts to overturn that argument by as many statements of the case as he can employ.

But comparison itself, when separated from the other kinds of discussion, will be considered according to its own intrinsic power, if that which is mentioned in the comparison is shown, either not to have been honourable, or not to have been useful, or not to have been necessary, or not so greatly useful, or not so very honourable, or not so exceedingly necessary.

In the next place it is desirable for the accuser to separate the action which he himself is accusing, from that which the advocate for the defence compares with it. And he will do that if he shows that it is not usually done in such a manner, and that it ought not to be done so, and that there is no reason why this thing should be done on this account; for instance, that those things which have been provided for the sake of safety, should be surrendered to the enemy for the sake of safety. Afterwards it will be desirable to compare the injury with the benefit, and altogether to compare the action which is impeached with that which is praised by the advocate for the defence or which is attempted to be proved as what must inevitably have ensued, and then, by disparaging the one at the same time to exaggerate the importance of the mischief caused by the other. That will be effected if it be shown that that which the person on his trial avoided was more honourable, more advantageous, and more necessary than that which he did. But the influence and character of what is honourable, and useful, and necessary, will be ascertained in the rules given for deliberation.

In the next place, it will be desirable to explain that comparative kind of judicial decision as if it were a deliberative cause and then afterwards to discuss it by the light thrown on it by rules for deliberation. For let this be the question for judicial decision which we have already mentioned—"As all the soldiers would have been lost if they had not come to this agreement, was it better for the soldiers to be lost, or to come to this agreement?" It will be desirable that this should be dealt with with reference to the topics concerning deliberation, as if the matter were to come to some consultation.

XXVI. But the advocate for the defence will take the topics in accordance with which other statements of the case are made by the accuser, and will prepare his own defence from those topics with reference to the same statements. But all other topics which belong to the comparison, he will deal with in the contrary manner.

The common topics will be these,—the accuser will press his charges against the man who confesses some discreditable or pernicious action, or both, but still seeks to make some defence, and will allege the mischievous or discreditable nature of his conduct with great indignation. The advocate for the defence will insist upon it, that no action ought to be considered pernicious or discreditable, or, on the other hand, advantageous or creditable, unless it is ascertained with what intention, at what time, and on what account it was done. And this topic is so common, that if it is well handled in this cause it is likely to be of great weight in convincing the hearers. And there is another topic, by means of which the magnitude of the service done is demonstrated with very great amplification, by reference to the usefulness, or honourableness, or necessity of the action. And there is a third topic, by means of which the matter which is expressed in words is placed before the eyes of those men who are the hearers, so that they think that they themselves also would have done the same things, if the same circumstances and the same cause for doing so had happened to them at the same time.

The retorting of a charge takes place, when the accused person, having confessed that of which he is accused, says that he did it justifiably, being induced by the sin committed against him by the other party. As in this case—"Horatius, when he had slain the three Curiatii and lost his two brothers, returned home victorious. He saw his sister not troubled about the death of her brothers, but at the same time calling on the name of Curiatius, who had been betrothed to her, with groans and lamentation. Being indignant, he slew the maid". He is prosecuted.

The charge is, "You slew your sister wrongfully". The refutation is "I slew her lawfully". The question is, "Whether he slew her lawfully". The reason is, "Yes, for she was lamenting the death of enemies, and was indifferent to that of her brothers, she was grieved that I and the Roman people were victorious". The argument to invalidate this reason is, "Still she ought not to have been put to death by her brother without being convicted". On this the question for the decision of the judges is, "Whether when Horatia was showing her indifference to the death of her brothers, and lamenting that of the enemy, and not rejoicing at the victory of her brother and of the Roman people, she deserved to be put to death by her brother without being condemned".

XXVII For this kind of cause, in the first place, whatever is given out of the other statements of cases ought to be taken, as has been already enjoined when speaking of comparison. After that, if there is any opportunity of doing so, some statement of the case ought to be employed by which he to whom the crime is imputed may be defended. In the next place, we ought to argue that the fault which the accused person is imputing to another, is a lighter one than that which he himself committed; in the next place, we ought to employ some portion of a demurrer, and to show by whom, and through whose agency, and how, and when that matter ought to have been tried, or adjudged, or decided. And at the same time, we ought to show that it was not proper that punishment should have been inflicted before any judgment was pronounced. Then we must also point out the laws and the course of judicial proceeding by which that offence which the accused person punished of his own accord, might have been chastised according to precedent, and by the regular course of justice. In the next place, it will be right to deny that it is proper to listen to the charge which is brought by the accused person against his victim, when he who brings it did not choose to submit it to the decision of the judges, and it may be urged that one ought to consider that on which no decision has been pronounced, as if it had not been done, and after that to point out the impudence of those men who are now before the judges accusing the man whom they themselves condemned without consulting the judges, and are now bringing him to trial on whom they have already inflicted punishment. After this we may say that it is bringing irregularity into the courts of justice, and that the judges will be advancing further than their power authorizes them, if they pronounce judgment at the same time in the case of the accused person, and of him whom the accused person impeaches. And in the next place, we may point out if this rule is established, and if men avenge one offence by another offence, and one injury by another injury, what vast inconvenience will ensue from such conduct, and that if the person who is now the prosecutor had chosen to do so too, there would have been no need of this trial at all, and that if every one else were to do so, there would be an end of all courts of justice.

After that it may be pointed out, that even if the maiden who is now accused by him of this crime had been convicted, he would not himself have had any right to inflict punishment on her, so that it is a shameful thing that the man who would have had no right to punish her, even if she had been convicted, should have punished her without her being even brought to trial at all. And then the accused person may be called upon to produce the law which he says justifies his having acted in such a manner.

After that, as we have enjoined when speaking of comparison, that that which is mentioned in comparison should be disparaged by the accuser as much as possible, so, too, in this kind of argument, it will be advantageous to compare the fault of the party on whom the accusation is retorted with the crime of the accused person who justified his action as having been lawfully done. And after that it is necessary to point out that that is not an action of such a sort, that on account of it this other crime ought to have been committed. The last point, as in the case of comparison, is the assumption of a judicial decision, and the dilating upon it in the way of amplification, in accordance with the rules given respecting deliberation.