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VII.2

This webpage reproduces a section of
Institutio Oratoria

by
Quintilian

published in Vol. III
of the Loeb Classical Library edition, 1920

The text is in the public domain.

This page has been carefully proofread
and I believe it to be free of errors.
If you find a mistake though,
please let me know!


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VII.5‑10

(Vol. III) Quintilian
Institutio Oratoria

Book VII

Chapters 3‑4

3 1 Conjecture is followed by definition. For the man who cannot assert that he has done nothing, must needs take refuge in the assertion that he has not committed the act which is alleged against him. Consequently the laws which govern definition are for the most part the same as those which govern conjecture, the only difference lying in the method to be employed in defence in cases such as those concerned with theft, deposits or adultery. For just as we say, p85"I have not committed theft, I never received a deposit, I am not guilty of adultery," so we say, "This is not theft, this is not a deposit, this is not adultery." 2 Sometimes we may pass from quality to definition, as in actions concerned with lunacy, cruelty and offences against the State. In such cases if it is impossible to assert that the acts alleged were right, we are left with such pleas as, "To use bad language to one's wife does not amount to cruelty." Definition is the statement of the fact called in question in appropriate, clear and concise language. 3 As I have already said,51 it consists mainly in the statement of genus, species, difference and property. For example, if you wish to define a horse (for I will take a familiar example), the genus is animal, the species mortal, the difference irrational (since man also is mortal) and the property neighing. Definition is employed by the orator for a number of different reasons. 4 For sometimes, though there may be no doubt as to a term, there is a question as to what it includes, or, on the other hand, there may be no doubt about the thing, but no agreement as to the term to be applied to it. When the term is agreed, but the thing doubtful, conjecture may sometimes come into play, as, for instance, in the question, "What is god?" 5 For the man who denies that god is a spirit permeating all things, assuredly asserts that the epithet "divine" is falsely applied to his nature, like Epicurus, who gives him a human form and makes him reside in the intermundane space. While both use the same term god, both have to employ conjecture to decide which of the two meanings is consistent with fact. 6 Sometimes again we have recourse to quality, as in the question, "What is p87rhetoric? Is it the power to persuade or the science of speaking well?" This form of question is of frequent occurrence in the courts. For instance, the question may arise whether a man caught in a brothel with another man's wife is an adulterer. Here there is no doubt about the name; it is the significance of the act which is in doubt, since the question is whether he has committed any sin at all. For if he has sinned, his sin can only be adultery. 7 There is a different type of question where the dispute is concerned with the term to be applied, which depends on the letter of the law: it is a form of question which can only arise in the courts from the actual words on which the dispute turns. Take as examples the questions, whether suicide is a form of homicide, or whether the man who forces a tyrant to kill himself can be considered a tyrannicide, or whether magical incantations are equivalent to the crime of poisoning. In all these cases there is no doubt about the facts, for it is well known that there is a difference between killing oneself and killing another, between slaying a tyrant and forcing him to suicide, between employing incantations and administering a deadly draught, but we enquire whether we are justified in calling them by the same name.

8 Though I hardly like to differ from Cicero,52 who follows many authorities in saying that definition is concerned with identity and difference (since he who denies the applicability of one term must always produce another term which he regards as preferable), for my own part I consider that definition falls into three types, which I may perhaps call species. 9 For at times it is convenient merely to p89enquire whether one particular term is applicable to a given thing, as in the question whether an act committed in a brothel is adultery. If we deny that it is adultery, there is no need to state what it should be called, since we have given a total denial to the charge. Secondly, there are occasions when the question is which of two terms is to be applied to a thing, as in the question whether an act is theft or sacrilege. It may be sufficient for the defence that it is not sacrilege, but it is still necessary to show what else it is, and therefore we must define both. 10 Thirdly, there are times when the question concerns things which are different in species, and we ask whether two different things are to be called by the same name, in spite of the fact that each has a special name of its own: for example, is the same name applicable both to a love-potion and a poison?53 But in all disputes of this kind the question is whether one thing is another thing as well, since the name in doubt does without question apply to something else. It is sacrilege to steal a sacred object from a temple; is it also sacrilege to steal private property from a temple? It is adultery to lie with another man's wife in one's own house; is it adultery to do so in a brothel? It is tyrannicide to slay a tyrant; is it tyrannicide to force him to slay himself? 11 Consequently the syllogism, to which I shall return later, is virtually a weaker form of definition, since while definition seeks to determine whether one thing has the same name as another, syllogism seeks to determine whether one thing is to be regarded as identical with another. 12 There is moreover great variety in definitions. For instance, persons will give different verbal expression to p91things about which they are really in agreement: thus rhetoric is defined as the science of speaking well, as the science of correct conception or correct expression of what we have to say, as the science of speaking in accordance with the excellence of an orator and again of speaking to the purpose. And we must take care to discover how it is that definitions, identical in meaning, differ in the form in which they are expressed. However, this is a subject for discussion and not for a quarrel. 13 Definition is sometimes required to explain rare or obscure words such as clarigatio54 or erctum citum,55 or again to explain familiar words such as penus56 or litus.57

This variety in definition has caused some writers to include it under conjecture, others under quality and others again under legal questions. 14 Some, on the other hand, entirely reject the elaborate and formal methods of reasoning employed by dialectic, regarding such ingenuity as suited rather to quibbles over words in philosophical discussions than as likely to carry much weight in the performance of the duties of an orator. For though in dialogue definition may serve to fetter the person who has got to reply in chains of his own making, or may force him to silence, or even to reluctant confession of a point which tells against himself, it is of less use in forensic cases. 15 For there we have to persuade the judge, who, even though he may be tied and bound with our words, will still dissent in silence, unless he is brought really into touch with the actual facts. And what need has a pleader for such precision of definition? Even if I do not say that man is an animal, mortal and rational, surely I shall still be able, by setting forth the numerous properties of his p93body and mind in more general terms, to distinguish him from gods or dumb beasts. 16 Again, may not the same thing be defined in more than one way, as Cicero does when he says, "What do we mean when we say 'commonly': surely we mean 'by all men'?58 May it not be given a wide and varied treatment such as is frequently employed by all orators? For it is rare to find orators falling victims to that form of slavery introduced from the practice of the philosophers and tying themselves down to certain definite words; indeed it is absolutely forbidden by Marcus Antonius in the de Oratore59 of Cicero. 17 For it is a most dangerous practice, since, if we make a mistake in a single word, we are like to lose our whole case, and consequently the compromise adopted by Cicero in the pro Caecina60 is the safest course to follow; this consists in setting forth the facts without running any risks over the exactness of our terminology. These are his words: "Judges, the violence which threatens our lives and persons is not the only kind of violence: there is a much more serious form which by the threat of death fills our minds with panic and often turns them from their natural condition of stability." 18 Or again, we may prove before we define, as Cicero does in the Philippics,61 where he proves that Servius Sulpicius was killed by Antony and introduces his definition at the conclusion in the following terms:— "For assuredly the murderer was he who was the cause of his death." I would not, however, deny that such rules should be employed, if it will help our case, and that, if we can produce a definition which is at once strong and concise, it will be not merely an ornament to our speech, but will also produce the strongest impression, p95provided always that it cannot be overthrown.

19 The order to be followed in definition in invariable. We first ask what a thing is, and then, whether it is this.62 And there is generally more difficulty in the establishment than in the application of a definition. In determining what a thing is, there are two things which require to be done: we must establish our own definition and destroy that of our opponent. 20 Consequently in the schools, where we ourselves imagine our opponent's reply, we have to introduce two definitions, which should suit the respective sides of the case as well it is in our power to make them. But in the courts we must give careful consideration to the question whether our definition may not be superfluous and irrelevant or ambiguous or inconsistent or even of no less service to our opponents than to ourselves, since it will be the fault of the pleader if any of these errors occur. 21 On the other hand, we shall ensure the right definition, of we first make up our minds what it is precisely that we desire to effect: for, this done, we shall be able to suit our words to serve our purpose. To make my meaning clearer, I will follow my usual practice and quote a familiar example. "A man who has stolen private money for a temple is accused of sacrilege." 22 There is no doubt about his guilt: the question is whether the name given by the law applies to the charge. It is therefore debated whether the act constitutes sacrilege. The accuser employs this term on the ground that the money was stolen from a temple: the accused denies that the act is sacrilege, on the ground that the money stolen was private property, but admits that p97it is theft. The prosecutor will therefore give the following definitions, "It is sacrilege to steal anything from a sacred place." The accused will reply with another definition, "It is sacrilege to steal something sacred." Each impugns the other's definition. 23 A definition may be overthrown on two grounds: it may be false or it may be too narrow. There is indeed a possible third ground, namely irrelevance, but this is a fault which no one save a fool will commit. 24 It is a false definition if you say, "A horse is a rational animal," for though the horse is an animal, it is irrational. Again, a thing which is common to something else cannot be a property of the thing defined. In the case under discussion, then, the accused alleges that the definition given by the accuser is false, whereas the accuser cannot do the same by his opponent's definition, since to steal a sacred object is undoubtedly sacrilege. He therefore alleges that the definition is too narrow and requires the addition of the words "or from a sacred place." 25 But the most effective method of establishing and refuting definitions is derived from the examination of properties and differences, and sometimes even from considerations of etymology, while all these considerations will, like others, find further support in equity and occasionally in conjecture.63 Etymology is rarely of assistance, but the following will provide an example of its use. "For what else is a 'tumult' but a disturbance of such violence as to give rise to abnormal alarm? And the name itself is derived from this fact."64 26 Great ingenuity may be exercised with regard to properties and differences, as for instance in the question whether a person assigned to his creditor for debt,65 p99who is condemned by the law to remain in a state of servitude until he has paid his debt, is actually a slave. One party will advance the following definition, "A slave is one who is legally in a state of servitude." The other will produce the definition, "A slave is one who is in a state of servitude on the same terms as a slave (or, to use the older phrase, 'who serves as a slave')." This definition, though it differs considerably from the other, will be quite useless unless it is supported by properties and differences. 27 For the opponent will say that the person in question is actually serving as a slave or is legally in a state of servitude. We must therefore look for properties and differences, to which in passing I devoted a brief discussion in my fifth book.66 A slave when manumitted becomes a freedman: a man who is assigned for debt becomes a free man on the restoration of his liberty. A slave cannot acquire his freedom without the consent of his master: a man assigned for debt can acquire it by paying his debt without the consent of his master being necessary. A slave is outside the law; a man assigned for debt is under the law. Turning to properties, we may note the following which are possessed by none save the free, the three names (praenomen, nomen and cognomen) and membership of a tribe, all of which are possessed by the man assigned for debt.

28 By settling what a thing is we have come near to determining its quality, for our purpose is to produce a definition that is applicable to our case. Now the most important element in a definition is provided by quality, as, for example, in the question whether love be a form of madness. To this point p101in our procedure belong those proofs which according to Cicero67 are peculiar to definition, that is, proofs drawn from antecedents, consequents, adjuncts, contraries, causes, effects and similarities, with the nature of which I have already dealt.68 29 I will, however, quote a passage from the pro Caecina69 in which Cicero includes brief proofs drawn from origins, causes, effects, antecedents and consequents: "Why then did they fly? Because they were afraid. What were they afraid of? Obviously of violence. Can you then deny the beginning, when you have admitted the end?" But he also argued from similarity:70 "Shall not that which is called violence in war be called violence in peace as well?" 30 Arguments may also be drawn from contraries, as for instance in the question whether a love-potion can be a poison, in view of the fact that a poison is not a love-potion.

In order that my young students (and I call them mine, because the young student is always dear to me) may form a clearer conception of this second kind of definition, I will once more quote a fictitious controversial theme. 31 "Some young men who were in the habit of making merry together decided to dine on the sea-shore. One of their party failed to put in an appearance, and they raised a tomb to him and inscribed his name thereon. His father on his return from overseas chanced to land at this point of the shore, read the name and hung himself. It is alleged that the youths were the cause of his death." 32 The definition produced by the accuser will run as follows: "The man whose act leads to another's death is the cause of his death." The definition given by the accused will be, "He who wittingly commits an act which must necessarily lead p103to another's death, is the cause of his death." Without any formal definition it would be sufficient for the accuser to argue as follows: "You were the cause of his death, for it was your act that led to his death: but for your act he would still be alive." 33 To which the accused might answer, "It does not necessarily follow that the man whose act leads to another's death should be condemned forthwith. Were this so, the accuser, witnesses and judges in a capital case would all be liable to condemnation. Nor is the cause of death always a guilty cause. Take for instance the case of a man who persuades another to go on a journey or sends for his friend from overseas, with the result that the latter perishes in a shipwreck, or again the case of a man who invites another to dine, with the result that the guest dies of indigestion. 34 Nor is the act of the young men to be regarded as the sole cause of death. The credulity of the old man and his inability to bear the shock of grief were contributory causes. Finally, had he been wiser or made of sterner stuff, he would still be alive. Moreover the young men acted without the least thought of doing harm, and the father might have suspected them from the position of the tomb and the traces of haste in its construction that it was not a genuine tomb. What ground then is there for condemning them, for everything else that constitutes homicide is lacking save only the contributory act?"

35 Sometimes we have a settled definition on which both parties are agreed, as in the following example from Cicero:71 "Majesty resides in the dignity of the Roman power and the Roman people." The question however, is, whether that majesty has been p105impaired, as for example in the case of Cornelius.72 But even although the case may seem to turn on definition, the point for decision is one of quality, since there is no doubt about the definition, and must be assigned to the qualitative basis.73 It is a mere accident that I have come to mention quality at this moment, but in point of fact quality is the matter that comes next in order for discussion.

4 1 In speaking of quality we sometimes use the word in its most general sense, which covers a number of different questions. For we enquire sometimes into the nature and form of things: as for instance whether the soul is immortal or whether god is to be conceived of in human form. Sometimes, on the other hand, the question turns on size and number, as, for instance, what is the size of the sun or whether there are more worlds than one. In all these cases we arrive at our conclusions by conjecture, yet each involves a question of quality. 2 Such questions are sometimes treated in deliberative themes: for example, if Caesar is deliberating whether to attack Britain, he must enquire into the nature of the Ocean, consider whether Britain is an island (a fact not then ascertained), and estimate the size and the number of troops which he will require for the invasion. Under the same head of quality fall questions whether certain things should be done or not and certain objects sought or avoided: such topics are specially adapted for deliberative themes, but occur with some frequency in controversial themes as well, the only difference being that in the latter we deal with what is past and in the former with the future. 3 Similarly all the topics of demonstrative74 oratory involve a qualitative basis. p107The facts are admitted, and the question turns on their quality, the dispute being entirely concerned with rewards or penalties or their quantity. The case is therefore of two kinds, simple or comparative, the former dealing with what is just, the latter with what is juster, or most just. When the point for decision is the penalty to be inflicted, the duty of the pleader will be to defend, extenuate or excuse the act on which the charge is based, or even, according to some, to plead for mercy.

4 By far the strongest line that can be taken in defence is to assert that the act which forms the subject of the charge is actually honourable. A man is disinherited because he went on military service, stood for office or married without his father's consent. We defend this act. This form of defence is called κατ᾽ ἀντίληψιν by the followers of Hermagoras, that is, defence by objection, the term being used with reference to the purport of the defendant's plea.75 I can find no exact Latin translation of the term; we call it an absolute defence. But in such case the question is concerned with the justice or injustice of the act alone. 5 Justice is either natural or conventional. Natural justice is found in actions of inherent worth. 6 Under this head come the virtues of piety, loyalty, self-control and the like. But this view must not be adopted without consideration: for to retaliate, or meet violence with violence on the one hand, does not imply injustice on the part of the aggressor, while on the other hand it does not follow that the first act was just merely because the two acts were alike. In cases where there is justice on both sides, the p109two parties must both come under the same law and the same conditions, and it would not perhaps be untrue to say that things can never be spoken of as like if there is any point in which they are dissimilar. Convention, on the other hand, is to be found in laws, customs, legal precedents and agreements.

7 There is another form of defence by which we defend an act in itself indefensible by arguments drawn from without.76 This the Greeks call κατ᾽ ἀντίθεσιν, by opposition. Here again there is no Latin equivalent, since we call it defence by assumption. 8 The strongest line to take in this form of defence is to defend the act forming the subject of the charge by appealing to its motive. An example of this is provided by the defence put forward on behalf of Orestes, Horatius or Milo. The term ἀντέκλημα, or counter-accusation, is employed when our defence consists entirely in accusing the person whom our opponents are seeking to vindicate. "He was killed, but he was a robber; he was blinded, but he was a ravisher." 9 There is another form of defence based on an appeal to the motives of the act which is the opposite of that which I have just described. It consists not in defending the act per se, as we do when we employ the absolute defence, nor in opposing another act to it, but in appealing to the interests of the State, of a number of persons, of our opponent himself or finally at times of ourselves, provided always that the act in question is such as we might lawfully do it in our own interests. If, however, the accuser is a stranger and insists on the letter of the law, this form of defence will invariably be useless, though it may p111serve our turn if the dispute is of a domestic character. 10 For example, in a suit concerned with the question of disinheritance a father may, without reflecting on himself, say to his sons that his act was of importance to his own interests, and the same plea may be urged by a husband accused of cruelty by his wife or a son who alleges that his father is insane. But in such cases the position of the man who seeks to avoid loss is stronger than that of him who aims at positive advantage. 11 Precisely similar methods are also employed in questions that occur in real life. For the scholastic themes concerned with the disowning of children are on exactly the same footing as the cases of sons disinherited by their parents which are tried in the public courts, or of those claims for the recovery of property which are tried in the centumviral court: themes dealing with cruelty find an actual parallel in those cases in which the wife claims the restoration of her dowry, and the question is whose fault it was that led to the divorce: and again the theme where the son accuses his father of madness has its analogy in cases where a suit is brought for the appointment of a guardian. 12 Under the same heading as the appeal to public or personal interest comes the plea that the act in question prevented the occurrence of something worse. For in a comparison of evils the lesser evil must be regarded as a positive good: for example, Mancinus may defend the treaty made with the Numantines on the ground that it saved the army from annihilation. This form of defence is called ἀντίστασις by the Greeks, while we style it defence by comparison.

13 Such are the methods by which we may p113defend an act. If it is impossible to defend an act either on its merits or with the assistance of arguments from without, the next best course will be to shift the charge, if possible, to another. It is for this reason that the basis of competence has been held to apply even to those who cannot plead the letter of the law in this connexion.77 In some cases, then, the blame will be thrown on a person: for example, Gracchus, when accused of making the treaty with the Numantines (and it was fear of this accusation that seems to have led him to bring forward the democratic laws of his tribuneship) may plead that he made it as the representative of his commander-in‑chief. 14 At times, on the other hand, the blame may be shifted to some thing: for instance, a person who has failed to comply with some testamentary injunction may plead that the laws forbade such compliance. The Greek term for such shifting is μετάστασις.

If these methods of defence are out of the question, we must take refuge in making excuses. We may plead ignorance. For example, if a man has branded a runaway slave and the latter is subsequently adjudged to be a free man, he may deny that he was cognisant of the truth. Or we may plead necessity; for instance, if a soldier overstays his leave, he may plead that his return was delayed by floods or ill health. 15 Again, the blame is often cast upon fortune, while sometimes we assert that, although we undoubtedly did wrong, we did so with the best intentions. Instances of these two latter forms of excuse are, however, so numerous and obvious that there is no need for me to cite them here.

p115 If all the above-mentioned resources prove unavailable, we must see whether it may not be possible to extenuate the offence. It is here that what some call the quantitative basis78 comes into play. 16 But when quantity is considered in reference to punishment or reward, it is determined by the quality of the act, and therefore in my opinion comes under the qualitative basis, as also does quantity which is used with reference to number by the Greeks, who distinguish between νοσότης and πηλικότης:79 we, however, have only one name for the two.

17 In the last resort we may plead for mercy, althoughº most writers deny that this is ever admissible in the courts.80 Indeed Cicero himself seems to support this view in his defence of Quintus Ligarius where he says, "I have pleaded many causes, Caesar, some of them even in association with yourself, so long as your political ambitions prevented you from abandoning the bar, but never have I pleaded in words such as these, 'Forgive him, gentlemen, he erred, he made a slip, he did not think that it mattered, he will never do it again,' " and so on. 18 On the other hand, in addressing the senate, the people, the emperor or any other authority who is in a position to show clemency, such pleas for mercy have a legitimate place. In such cases there are three points based on the circumstances of the accused which are most effective. The first is drawn from his previous life, if he has been blameless in his conduct and deserved well of the state, or if there is good hope that his conduct will be blameless for the future and likely to be of some use to his fellow men; the second is operative if it appears that he has been sufficiently p117punished already on the ground that he has suffered other misfortunes, or that his present peril is extreme, or that he has repented of his sin; while thirdly we may base his appeal on his external circumstances, his birth, his rank, his connexions, his friendships.

19 It is, however, on the judge that we shall pin our highest hopes, if the circumstances be such that acquittal will result in giving him a reputation for clemency rather than for regrettable weakness. But even in the ordinary courts appeals for mercy are frequently employed to a large extent, although they will not colour the whole of our pleading. For the following form of division is common:— "Even if he had committed the offence, he would have deserved forgiveness," a plea which has often turned the balance in doubtful cases, while practically all perorations contain such appeals. 20 Sometimes indeed the whole case may rest on such considerations. For example, if a father has made an express declaration that he has disinherited his son because he was in love with a woman of the town, will not the whole question turn on the point whether it was the father's duty to pardon such an offence and whether it is the duty of the centumviral court to overlook it? Nay, even in penal prosecutions governed by strict forms of law we raise two separate questions: first whether the penalty has been incurred, and secondly whether, if so, it ought to be inflicted. Still the view of the authorities to whom I have referred, that an accused person cannot be saved from the clutches of the law by this method of defence, is perfectly correct.

21 With regard to rewards, there are two questions which confront us: namely, whether the claimant is p119deserving of any reward, and, if so, whether he deserves so great a reward. If there are two claimants, we have to decide which is the more worthy of the two; if there are a number, who is the most worthy. The treatment of these questions turns on the kind of merit possessed by the claimants. And we must consider not merely the act (whether it has merely to be stated or has to be compared with the acts of others), but the person of the claimant as well. For it makes a great difference whether a tyrannicide be young or old, man or woman, a stranger or a connexion. 22 The place may also be discussed in a number of ways: was the city in which the tyrant was killed one inured to tyranny or one which had always been free? was he killed in the citadel or in his own house? The means, too, and the time call for consideration: was he killed by poison or the sword? was he killed in time of peace or war, when he was intending to lay aside his power or to venture on some fresh crime? 23 Further, in considering the question of merit, the danger and difficulty of the act will carry great weight, while with regard to liberality it will similarly be of importance to consider the character of the person from whom it proceeds. For liberality is more pleasing in a poor man than in a rich, in one who confers than in one who returns a benefit, in a father than in a childless man. Again, we must consider the immediate object of the gift, the occasion and the intention, that is to say, whether it was given in the hope of subsequent profit; and so on with a number of similar considerations. The question of quality therefore makes the highest demands on the resources of oratory, since it affords the utmost scope for a display of talent on either side, p121while there is no topic in which the emotional appeal is so effective. 24 For conjecture has often to introduce proofs from without and uses arguments drawn from the actual subject matter, whereas the real task of eloquence is to demonstrate quality: there lies its kingdom, there its power, and there its unique victory.

Verginius includes under quality cases concerned with disinheritance, lunacy, cruelty to a wife, and claims of female orphans to marry relatives. The questions thus involved are, it is true, frequently questions of quality, while some writers style them questions of moral obligation. 25 But the laws governing these cases sometimes admit of other bases. For example, conjecture is involved in quite a number of such cases, as when the accused urges either that he did not commit the act or, if he did, acted with the best intentions. I could quote many examples of this kind. Again, it is definition which tells us what precisely is meant by lunacy or cruelty to a wife.81 For as a rule the laws cited in such themes involve certain legal questions, though not to such an extent as to determine the basis of the case. 26 But this notwithstanding, if the actual fact cannot be defended, we may in the last resort base our defence on legal grounds, in which case we shall consider how many and what cases there are in which a father may not disinherit his son, what charges fail to justify an action for cruelty, and under what circumstances a son is not allowed to accuse his father of lunacy.

p123 27 Disinheritance may be of two kinds. In the first case it is for a completed crime: for example, the son who is disinherited may be a ravisher or an adulterer: in the second case it is for a crime which is still incomplete and terminable;82 an instance of this will be the case where the son is disinherited because of disobedience to his father. The first form of disinheritance always demands a certain harshness when the father pleads his case, since the act is irrevocable, whereas in the latter his pleading will be of a kindly and almost persuasive nature, since he would prefer not to disinherit him. On the other hand, the pleading of the sons would in both cases be of a subdued character and couched in a conciliatory tone. 28 I know that those who delight in making covert attacks upon the father under the disguise of some figure of speech will disagree with me: and I would not deny that their procedure may sometimes be justifiable, since the theme may conceivably be such as to demand it; but it is certainly to be avoided wherever possible. However, I shall deal with the whole question of figures in a later book.83 29 The treatment of the theme of cruelty to a wife is not unlike that of the theme of disinheritance; for both demand a certain moderation on the part of the accuser. Cases concerned with lunacy arise either out of what has been done or out of something which may or may not be done in the future. 30 In the former case the pleader is free to attack as he will, but must none the less do so in such a manner that, while denouncing the act, he will yet express pity for the father on the ground that he has erred by reason of his infirmity. On the other hand, in the latter case, where the act has not p125yet taken place and there is nothing to prevent the father changing his purpose, he must begin by a prolonged attempt to induce him to change his mind, and then, and only then, complain that it is madness and not depravity of character that prevents him from listening to the voice of reason; and the more he praises his past character, the easier will it be to prove the change which it has undergone owing to the inroads of the disease. 31 The accused, wherever possible, must assume a temperate tone in his defence, for the reason that as a rule anger and excitement are near akin to madness. All these cases have this much in common, that the accused does not always defend his act, but often pleads excuse and asks for pardon. For these are domestic quarrels, in which the fact that the offence is an isolated case, due to error and of a less serious character than alleged, will sometimes suffice to secure an acquittal.

32 There are, however, a number of other controversial themes involving quality, as, for example, cases of assault. In these, although at time the accused denies that he committed the assault, the pleading as a rule is concerned with fact and intention. 33 Then there are cases concerned with the appointment of a prosecutor, which are known as divinations. In this connexion Cicero, who was indicting Verres on the instruction of our Sicilian allies, adopts the following division — to the effect that the main point for consideration is, by whom those the redress of whose wrongs forms the subject of the trial would prefer to be represented, and by whom the accused would least desire them to be represented. 34 But in the great majority of cases the questions raised are, which claimant has the strongest p127motives for undertaking the rôle of accuser, which is likely to bring the greatest energy or talent to the task, and which is likely to press the charge with the greatest sincerity. 35 Next we may take cases concerned with guardianship, in which it is usual to enquire whether it is necessary to investigate anything save the accounts, and whether anything can be demanded of the guardian except the honest execution of his trust; his sagacity and the success of his administration being beside the mark. Cases of fraud on the part of an agent, which are styled cases of conduct of business when they occur in the actual courts, are of a similar nature, since they also are concerned with the administration of a trust. 36 In addition to these we have the fictitious cases of the schools which deal with crimes not covered by the law, where the question is as a rule either whether the crime is really not covered by the law or whether it is a crime, though on rare occasions both questions are raised. Cases of misconduct on the part of an ambassador are of frequent occurrence among the Greeks, even in actual life: in these the legal question is raised whether it is lawful to deviate at all from one's instructions and for how long the accused was technically an ambassador, since in some cases the ambassador's duty is to convey a communication to a foreign power and in others to bring one back. Take for example the case of Heius, who gave evidence against Verres after performing his duties as ambassador. But in such cases the most important question turns on the nature of the deed complained of. 37 Next come cases of action contrary to the interests of the state. In these we meet with legal quibbles as to what is the meaning of "action contrary to the p129interests of the state," and whether the action of the accused was injurious or profitable, or whether the interests of the state suffered at his hands or merely on his account: but the most important question is that of fact. There are also cases of ingratitude; in these we raise the question whether the accused has really received any kindness. It is only rarely that the fact can be denied, as denial is in itself a sign of ingratitude. But there are the further questions as to the extent of the kindness and whether it has been repaid. 38 If it has not been repaid, does this necessarily involve ingratitude? Was it in his power to repay? Did he really owe the return which was demanded of him? What is his intention? Sometimes simpler are cases of unjust divorce, a form of controversy which has this peculiarity, that the accuser defends and the defendant accuses.84 39 Further there are cases where a senator sets forth to the senate the reasons which determine him to commit suicide,85 in which there is one legal question, namely, whether a man who desires to kill himself in order to escape the clutches of the law ought to be prevented from so doing, while the remaining questions are all concerned with quality. There are also fictitious cases concerned with wills, in which the only question raised is one of quality, as, for instance, in the controversial theme quoted above,86 where the philosopher, physician and orator all claim the fourth share which their father had left to the most worthy of his sons. The same is true of cases where suitors of equal rank claim the hand of an orphan and the question confronting her relatives is which is the most suitable. 40 I do not, however, intend to discuss every possible theme, p131since fresh ones can always be invented, nor yet to deal with all the questions to which they give rise, since these vary with circumstances. But I cannot help expressing my astonishment that Flavus,87 for whose authority I have the highest respect, restricted the range of quality to such an extent in the text-book which he composed for the special guidance of the schools.

41 Quantity also, as I have already stated,88 falls as a rule, though not always, under the head of quality, whether it is concerned with measure or number. Measure, however, sometimes consists in the valuation of a deed with a view to determining the amount of guilt or the amount of benefit involved, while, on the other hand, it sometimes turns on a point of law, when the dispute is under what law man is to be punished or rewarded. 42 For example is a ravisher to pay 10,000 sesterces89 because that is the penalty appointed by law, or is he liable to capital punishment as a murderer because his victim hanged himself? In such cases those who plead as if there were a question between two laws, are wrong: for there is no dispute about the fine of 10,000, since it is not claimed by the prosecution. 43 The point on which judgment has to be delivered is whether the accused is guilty of causing his victim's death. The same type of case will also bring conjecture into play, when, for example, the question in dispute is whether the accused shall be punished with banishment for life or for five years. For the question then is whether he caused his death willingly or not. 44 Again, there are questions concerned with numerical quantity which turn on a point of law, such as the questions whether thirty p133rewards are due to Thrasybulus,90 or whether, when two thieves have stolen a sum of money, they are each to be required to refund fourfold or twofold. But in these cases, too, valuation of the act is necessary, and yet the point of law also turns on quality.


The Translator's Notes:

51 V.X.55.

52 cp. III.VI.31.

53 cp. VIII.V.31.

54 A formal demand for redress under threat of war.

55 An undivided inheritance.

56 Store of provisions.

57 Shore, see V.XIV.34, where its derivation is explained as qua fluctus eludit.

58 Pro Mur. xxxv.73.

59 II.XXV.108 sqq.

60 xv.42.

61 IX.III.7.

62 i.e. the thing under consideration.

63 Conjecture is here used in the ordinary sense, not the technical.

64 Cic. Phil. VIII.I.3. Tumultus is here used by Cicero in its special sense, civil war or Gallic invasion. He derives it from timor multus.

65 cp. III.VI.25.

66 V.X.60.

67 Top. xxiii.88.

68 V.X.73.

69 xv.44.

70 xv.43.

71 Part. Or. xxx.105. maiestatem imminuere = to commit lèse-majesté or treason.

72 No fragments of the pro Cornelio contain any trace of this.

73 See III.VI.31, sqq.

74 See III.IV.12 sqq.

75 ἀντίληψις is the technical term for this form of defence which turns not on the facts, but on the justice of the case. The meaning of ad intellectum id nomen referentes is obscure. If the words are correct (and no satisfactory correction seems possible), their meaning must be that the defence turns not on the act, but on its significance and equity. If any change is made in the text, the simplest course is to delete the words as a gloss which has crept into the text.

76 i.e. from motives derived from facts lying outside the actual case.

77 i.e. there are no legal grounds for alleging that the court is not competent to try the case, or the accuser to bring the charge, etc. See III.VI.53, 78.

78 cp. III.VI.23, 51, 53.

79 ποσότης = quantity with reference to number; πηλικότης = quantity with reference to magnitude.

80 Pro Lig. x.30.

81 The general sense of 25 and 26 is clear. These cases do not always come under the status qualitatis: they not infrequently come under the status coniecturalis and finitivus. They cannot, however, strictly be said to come under the status legalis, since although the leges of such scholastic themes do involve certain questions of law, these are not such as to constitute the status legalis. Still in the last resort such cases may be argued on legal grounds. The text adopted for the (p121)last sentence of 25 is that which involves the least change, but it is highly obscure and the correction may well lie deeper still. For the whole question of bases, which is highly technical, see III.vi.

82 Literally conditional. The sense, however, is that the disinheritance is only conditional on the disobedience being continued.

83 Book IX. See especially IX.II.65 sqq.

84 i.e. the divorced wife defends her character, while the husband attacks her character.

85 Based on a law of Massilia, where the state provided poison for the would‑be suicide, provided he could justify himself before the senate.

86 VII.I.38.

87 i.e. Verginius mentioned in § 24.

88 § 16.

89 cp. IV.II.69.

90 i.e. for his overthrow of the thirty tyrants; cp. III.VI.26.


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