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Book I

This webpage reproduces part of
a complete English translation of the
Rhetorica ad Herennium
published in the Loeb Classical Library,
1954

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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Book III

Rhetorica ad Herennium

p59 Book II

1 1 In the preceding Book, Herennius, I briefly set forth the causes with which the speaker must deal,1 and also the functions of his art to which he may well devote his pains, and the means by which he can most easily fulfil these functions.2 But since it was impossible to treat all the topics at once, and I had primarily to discuss the most important of them in order that the rest might prove easier for you to understand, I therefore decided to write first upon those that are the most difficult.

There are three kinds of causes: Epideictic, Deliberative, and Judicial. By far the most difficult is the judicial; that is why, I have disposed of this kind first of all. Of the five tasks of the speaker Invention is the most important3 and the most difficult. That topic too I shall virtually have disposed of in the present Book; small details will be postponed to Book III.4

2 I first undertook to discuss the six parts of a discourse. In the preceding Book I spoke about the Introduction, the Statement of Facts, and the Division,5 at no greater length than was necessary nor with less clarity than I judged you desired. I had next to discuss Proof and Refutation, conjointly. Hence I expounded the different Types of Issue and their subdivisions,6 and this at the same time showed p61how the Type of Issue and its subdivision are to be found in a given cause. Then I explained how the Point to Adjudicate is properly sought; this found, we must see that the complete economy of the entire speech is directed to it.7 After that I remarked that there are not a few causes8 to which several Types of Issue or their subdivisions are applicable.

2 It remained for me, as it seemed, to show by what method we can adapt the means of invention to each type of issue or its subdivision,9 and likewise what sort of technical arguments (which the Greeks call epicheiremata)10 one ought to seek11 or avoid;12 both of these departments belong to Proof and Refutation. Then finally I have explained what kind of Conclusions to speeches one ought to employ;13 the Conclusion was the last of the six parts of a discourse.

First, then, I shall investigate how we should handle causes representing each Type of Issue, and of course shall give primary consideration to that type which is the most important and most difficult.

3 In a Conjectural cause the prosecutor's Statement of Facts should contain, intermingled and interspersed in it, material inciting suspicion of the defendant, so that no act, no word, no coming or going, in short nothing that he has done may be thought to lack a motive. The Statement of Facts of the defendant's counsel should contain a simple and clear statement, and should also weaken suspicion.

p63 The scheme of the Conjectural Issue includes six divisions: Probability, Comparison, Sign, Presumptive Proof, Subsequent Behaviour, and Confirmatory Proof. I shall explain the meaning of each of these terms.

Through Probability14 one proves that the crime was profitable to the defendant, and that he has never abstained from this kind of foul practice. The subheads under Probability are Motive and Manner of Life.15

The Motive16 is what led the defendant to commit the crime, through the hope it gave him of winning advantages or avoiding disadvantages.17 The question is: Did he seek some benefit from the crime — honour, money, or power? Did he wish to satisfy some passion — love or a like overpowering desire? Or did he seek to avoid some disadvantage — enmities, ill repute, pain, or punishment? 3 4 Here the prosecutor, if the hope of gaining an advantage is in question, will disclose his opponent's passion; if the avoidance of a disadvantage is in question, he will enlarge upon his opponent's fear. The defendant's counsel, on the other hand, will, if possible, deny that there was a motive, or will at least vigorously belittle its importance; then he will say that it is unfair to bring under suspicion of wrongdoing every one to whom some profit has come from an act.

p65 5 Next the defendant's Manner of Life will be examined in the light of his previous conduct. First the prosecutor will consider whether the accused has ever committed a similar offence.18 If he does not find any, he will seek to learn whether the accused has ever incurred the suspicion of any similar guilt; and it will devolve upon him to make every effort to relate the defendant's manner of life to the motive which he has just exposed. For example, if the prosecutor contends that the motive for the crime was money, let him show that the defendant has always been covetous; if the motive was public honour, ambitious; he will thus be able to link the flaw in the defendant's character with the motive for the crime. If he cannot find a flaw consistent with the motive, let him find one that is not. If he cannot show that the defendant is covetous,19 let him show that he is a treacherous seducer; in short, if he possibly can, let him brand the defendant with the stigma of some one fault, or indeed, of as many faults as possible.20 Then, he will say, it is no wonder that the man who in that other instance acted so basely should have acted so criminally in this instance too.21 If the adversary enjoys a high reputation for purity and integrity, the prosecutor will say that deeds, not reputation, ought to be considered; that the defendant has previously concealed his misdeeds,22 and he will make it plain that the defendant is not guiltless of misbehaviour. The defendant's counsel will first show his client's upright life,23 if he can; if he cannot, he will have recourse to thoughtlessness, folly, youth, force, or undue influence. On these matters . . . censure ought not to be imposed for conduct extraneous to the present charge. If the speaker is seriously p67handicapped by the man's baseness and notoriety, he will first take care to say that false rumours have been spread about an innocent man, and will use the commonplace that rumour ought not to be believed. If none of these pleas is practicable, let him use the last resource of defence; let him say that he is not discussing the man's morals before censors, but the charges of his opponents before jurors.24

4 6 Comparison25 is used when the prosecutor shows that the act charged by him against his adversary has benefited no one but the defendant; or that no one but his adversary could have committed it; or that the adversary could not have committed it, or at least not so easily, by other means; or that, blinded by passion, his adversary failed to see any easier means. To meet this point the defendant's counsel ought to show that the crime benefited others as well, or that others as well could have done what is imputed to his client.

By Signs one shows that the accused sought an opportunity favourable to success. Sign26 has six divisions: the Place, the Point of Time, the Duration of Time, the Occasion, the Hope of Success, the Hope of Escaping Detection.

7 The Place is examined as follows: Was it frequented or deserted, always a lonely place, or deserted then at the moment of the crime? A sacred place or profane, public or private? What sort of places are adjacent? Could the victim have been seen or heard? I should willingly describe in detail p69which of these points is serviceable to the defence, and which to the prosecution, were it not that any one would in a given cause find this easy to determine. For of Invention it is only the first principles which ought to originate in theory; all the rest will readily be supplied by practice.

The Point of Time is examined as follows: In what season of the year, in what part of the day — whether at night or in the daytime — at what hour of the day27 or night, is the act alleged to have been committed, and why at such a time?

The Duration of Time will be considered in the following fashion: Was it long enough to carry this act through, and did the defendant know that there would be enough time to accomplish it? For it is only of slight importance that he had enough time to carry out the crime if he could not in advance have known or have forecast that that would be so.

The Occasion is examined as follows: Was it favourable for the undertaking, or was there a better occasion which was either let pass or not awaited?

Whether there was any Hope of Success will be investigated as follows: Do the above-mentioned signs coincide? Especially, do power, money, good judgement, foreknowledge, and preparedness appear on one side, and is it proved that on the other there were weakness, need, stupidity, lack of foresight, and unpreparedness? Hereby one will know whether the defendant should have had confidence in his success or not.

What Hope there was of Escaping Detection we seek to learn from confidants, eye-witnesses, or accomplices, freemen or slaves or both.28

p71 5 8 Through Presumptive Proof guilt is demonstrated by means of indications that increase certainty and strengthen suspicion. It falls into three periods: preceding the crime, contemporaneous with the crime, following the crime.29

In respect to the period preceding the crime, one ought to consider where the defendant was, where he was seen, whether he made some preparation, met any one, said anything, or showed any sign of having confidants, accomplices, or means of assistance; whether he was in a place, or there at a time, at variance with his custom. In respect to the period contemporaneous with the crime, we shall seek to learn whether he was seen in the act; whether some noise, outcry, or crash was heard; or, in short, whether anything was perceived by one of the senses — sight, hearing, touch, smell, or taste. In respect to the period following the crime, one will seek to discover whether after the act was completed there was left behind anything indicating that a crime was committed, or by whom it was committed. Indicating that it was committed: for example, if the body of the deceased is swollen and black and blue it signifies that the man was killed by poison. Indicating by whom it was committed: for example, if a weapon, or clothing, or something of the kind was left behind, or a footprint of the accused was discovered; p73if there was blood on his clothes; or if, after the deed was done, he was caught or seen in the spot where the crime is alleged to have been perpetrated.

For Subsequent Behaviour we investigate the signs which usually attend guilt or innocence.30 The prosecutor will, if possible, say that his adversary, when come upon, blushed, paled, faltered, spoke uncertainly, collapsed, or made some offer — signs of a guilty conscience. If the accused has done none of these things, the prosecutor will say his adversary had even so far in advance calculated what would actually happen to him that he stood his ground and replied with the greatest self-assurance — signs of audacity, and not of innocence. The defendant's counsel, if his client has shown fear, will say that he was moved,31 not by a guilty conscience, but by the magnitude of his peril; if his client has not shown fear, counsel will say that he was unmoved because he relied on his innocence.

6 9 Confirmatory Proof32 is what we employ finally, when suspicion has been established. It has special and common topics.33 The special topics are those which only the prosecution, or those which only the defence, can use. The common topics are those which are used now by the defence, and now by the prosecution, depending on the case. In a conjectural p75cause the prosecutor uses a special topic when he says that wicked men ought not to be pitied, and expatiates upon the atrocity of the crime. The defendant's counsel uses a special topic when he tries to win pity, and charges the prosecutor with slander. These topics are common to both prosecution and defence: to speak for34 or against witnesses, for or against the testimony given under torture, for or against presumptive proof, and for or against rumours.35

In favour of witnesses36 we shall speak under the heads: (a) authority and manner of life of the witnesses, and (b) the consistency of their evidence. Against witnesses, under the heads: (a) their base manner of living; (b) the contradictory character of their testimony; (c) if we contend that what they allege to have happened either could not have happened or did not happen, or that they could not have known it, or that it is partiality which inspires their words and inferences. These topics will appertain both to the discrediting and to the examination of witnesses.

7 10 We shall speak in favour of the testimony given under torture37 when we show that it was in order to discover the truth that our ancestors wished investigations to make use of torture and the rack, and that men are compelled by violent pain to tell all they know. Moreover, such reasoning will have p77the greater force if we give the confessions elicited under torture an appearance of plausibility by the same argumentative procedure as is used in treating any question of fact. And this, too, we shall have to do with the evidence of witnesses. Against the testimony given under torture we shall speak as follows: In the first place, our ancestors wished inquisitions to be introduced only in connection with unambiguous matters, when the true statement in the inquisition could be recognized and the false reply refuted; for example, if they sought to learn in what place some object was put, or if there was in question something like that which could be seen, or be verified by means of footprints, or be perceived by some like sign. We then shall say that pain ought not to be relied upon, because one person is less exhausted by pain, or more resourceful in fabrication, than another, and also because it is often possible to know or divine what the presiding justice wishes to hear, and the witness knows that when he has said this his pain will be at an end. Such reasoning will find favour, if, by a plausible argument, we refute the statements made in the testimony given under torture; and to accomplish this we should use the divisions under the Conjectural Issue which I have set forth above.38

11 In favour of presumptive proof, signs, and the other means of increasing suspicion it is advantageous to speak as follows: When there is a concurrence of many circumstantial indications and signs that agree with one another, the result ought to appear as clear fact, not surmise. Again, signs and presumptive proof deserve more credence than witnesses, for these first are presented precisely as they occurred in p79reality, whereas witnesses can be corrupted by bribery, or partiality, or intimation, or animosity.39 Against presumptive proof, signs, and the other provocatives of suspicion we shall speak in the following fashion: we shall show that nothing is safe from attack by suspicion, and then we shall weaken each and every reason for suspicion and try to show that it applies to us no more than to any one else; it is a shameful outrage to consider suspicion and conjecture, in the absence of witnesses, as sufficiently corroborative.

8 12 We shall speak in favour of rumour by saying that a report is not wont to be created recklessly and without some foundation, and that there was no reason for anybody wholly to invent and fabricate one; and, moreover, if other rumours usually are lies, we shall prove by argument that this one is true. We shall speak against rumours if we first show that many rumours are false, and cite examples of false report; if we say that the rumours were the invention of our enemies or of other men malicious and slanderous by nature; and if we either present some story invented against our adversaries which we declare to be in every mouth, or produce a true report carrying some disgrace to them, and say we yet have no faith in it for the reason that any person at all can produce and spread any disgraceful rumour or fiction about any other person. If, nevertheless, a rumour seems highly plausible, we can destroy its authority by logical argument.

p81 Because the Conjectural Issue is the hardest to treat and in actual causes40 needs to be treated most often, I have the more carefully examined all its divisions, in order that we may not be hindered by even the slightest hesitation or blunder, if only we have applied these precepts of theory in assiduous practice. Now let me turn to the subtypes of Legal Issue.

9 13 When the intention of the framer appears at variance with the letter of a text, speaking in support of the letter41 we shall employ the following topics: first, after the Statement of Facts, a eulogy of the framer and then the reading aloud of the text; next the questioning of our adversaries: Are they duly aware that this text was in a law, will, contract, or any other document involved in the cause?; then a comparison of the text with the admitted act of our adversaries: Which should the judge follow — a document carefully draughted, or an interpretation cunningly invented? After that the interpretation devised and given to the text by our adversaries will be disparaged and weakened. Then the question will be raised: What risk would the writer have run by adding an entry of that kind had he really intended it, or was it impossible to write it out in full? Then we shall ascertain the writer's situation and present the reason why he had in mind what he wrote, and show that that text is clear, concise, apt, complete, and planned with precision. Thereupon we shall cite examples of judgements rendered in favour of the text, although adversaries raised the issue of spirit and intention. Finally, we shall show the danger of departing from the letter of the text. The commonplace here is that against one who, though confessing p83that he has violated the mandates of a statute or the directions of a will, yet seeks to defend his act.

10 14 In favour of the intention we shall speak as follows: first we shall praise the framer for deft conciseness in having written only what was necessary; he did not think it necessary to write what could be understood without a text. Next we shall say that to follow the words literally and to neglect the intention is the method of a pettifogger.42 Then, we shall contend, the letter either cannot be carried out, or at least not without violation of Statute Law, Legal Custom, the Law of Nature, or Equity43 — all these, as no one will deny, the writer wished to be most strictly observed; but on the contrary, what we have done is absolutely just. Further, the interpretation of our adversaries is either no interpretation, or is unreasonable, unjust, impracticable, or inconsistent with past or subsequent interpretations, or is in disagreement with the common law44 or with other generally binding rules of law or with previous decisions. Next we shall cite instances of decisions rendered in favour of the intention and contrary to the letter, and then p85read and explain laws or contracts which had been written down in concise form and yet in which the intention of the framer is understood. The commonplace here is that against one who reads a text and does not interpret the writer's intention.

15 When two laws conflict, we must first see whether they have been superseded or restricted, and then whether their disagreement is such that one commands and the other prohibits, or one compels and the other allows. It will be a weak defence indeed for a person to say that he failed to do what one law ordained, because another law made it optional; for obligation is more binding than mere permission. So also it is a meagre defence for a person to show that he has observed the obligation of a law which has been superseded or restricted, without heeding the obligation of the later law. After these considerations we shall at once pass to the exposition, reading, and warm recommendation of the law favourable to us. Then we shall elucidate the intention of the opposing law and appropriate it for the advantage of our cause. Finally, we shall take over the theory of Law from the Absolute Juridical Issue, and examine with which side the departments of Law hold; this subtype of a Juridical Issue I shall discuss later.45

11 16 If a text is regarded as ambiguous, because it can be interpreted in two or more meanings, the treatment is as follows: first we must examine whether it is indeed ambiguous; then we must show how it would have been written if the writer had wished it to have the meaning which our adversaries give to it; next, that our interpretation is practicable, and practicable in conformity with the Honourable and the Right, with Statute Law, Legal Custom, p87the Law of Nature, or Equity;46 of our adversaries' interpretation the opposite is true; and the text is not ambiguous since one well understands which is the true sense. There are some who think that for the development of this kind of cause a knowledge of amphibolies as taught by the dialecticians is highly useful. I, however, believe that this knowledge is of no help at all, and is, I may even say, a most serious hindrance. In fact these writers are on the lookout for all amphibolies, even for such as yield no sense at all in one of the two interpretations. Accordingly, when some one else speaks, they are his annoying hecklers, and when he writes, they are his boring and also misty interpreters. And when they themselves speak, wishing to do so cautiously and deftly, they prove to be utterly inarticulate. Thus, in their fear to utter some ambiguity while speaking, they cannot even pronounce their own names. Indeed I shall refute the childish opinions of these writers by the most straightforward proofs whenever you wish. For the present it has not been out of place to make this protest, in order to express my contempt for the wordy learning of this school of inarticulateness.47

12 17 When we deal with the Issue of Definition, we shall first briefly define the term in question, as follows: "He impairs the sovereign majesty of the state who destroys the elements constituting its dignity. What are these, Quintus Caepio? The p89suffrage of the people and the counsel of the magistracy. No doubt, then, in demolishing the bridges of the Comitium, you have deprived the people of their suffrage and the magistracy of their counselling."48 Likewise, in reply: "He impairs the sovereign majesty of the state who inflicts damage upon its dignity. I have not inflicted, but rather prevented, damage, for I have saved the Treasury, resisted the licence of wicked men, and kept the majesty of the state from perishing utterly." Thus the meaning of the term is first explained briefly, and adapted to the advantage of our cause; then we shall connect our conduct with the explanation of the term; finally, the principle underlying the contrary definition will be refuted, as being false, inexpedient, disgraceful, or harmful — and here we shall borrow our means from the departments of Law treated under the Absolute Juridical Issue, which I shall soon discuss.49

18 In causes based on Transference we first examine whether one has the right to institute an action, claim, or prosecution50 in this matter, or whether it should not rather be instituted at another time, or under another law, or before another examiner. The pertinent means will be provided by Statute Law, Legal Custom, and Equity, which I shall discuss in connection with the Absolute Juridical Issue.51

In a cause based on Analogy52 we shall first seek to know whether there exists any like text or decision on matters of greater, less, or like importance; next p91whether that matter is in fact like or unlike the matter in question; then whether the absence of a text concerning the matter here involved was intentional, because the framer was unwilling to make any provision, or because he thought that there was provision enough thanks to the similar provisions in the other legal texts.

On the subdivisions of the Legal Issue I have said enough; now I shall turn back to the Juridical.53

13 19 We shall be dealing with an Absolute Juridical Issue when, without any recourse to a defence extraneous to the cause, we contend that the act itself which we confess having committed was lawful. Herein it is proper to examine whether the act was in accord with the Law. We can discuss this question, once a cause is given, when we know the departments of which the Law is constituted. The constituent departments, then, are the following: Nature, Statute, Custom, Previous Judgements, Equity, and Agreement.54

p93 To the Law of Nature55 belong the duties observed because of kinship or family loyalty. In accordance with this kind of Law parents are cherished by their children, and children by their parents.

Statute Law56 is that kind of Law which is sanctioned by the will of the people; for example, you are to appear before the court when summoned to do so.57

Legal Custom58 is that which, in the absence of any statute, is by usage endowed with the force of statute law; for example, the money you have deposited with a banker you may rightly seek from his partner.59

It is a Previous Judgement60 what on the same question a sentence has been passed or a decree interposed. These are often contradictory, according as one judge, praetor, consul, or tribune of the plebs has determined differently from another; and it often happens that on the very same matter one has decree or decided differently from another. For example, Marcus Drusus, city praetor, granted an action on breach of contract against an heir, whereas Sextus Julius refused to do so.61 Again, Gaius p95Caelius, sitting in judgement, acquitted62 of the charge of injury63 the man who had by name attacked the poet Lucilius on the stage, while Publius Mucius condemned64 the man who had specifically named the poet Lucius Accius. 20 Therefore, because different past judgements can be offered for a like case, we shall, when this comes to pass, compare the judges, the circumstances, and the number of decisions.

The Law rests on Equity65 when it seems to agree with truth and the general welfare; for example, a man who is more than sixty years old, and pleads illness, shall substitute an attorney for himself.66 Thus according to circumstances and a person's status virtually a new kind of Law may well be established.

It is Law founded on Agreement67 if the parties have made some contract between themselves — if there is some covenant between parties. There are agreements which must be observed according to statutes, as for example: "When parties have contract on the matter, party shall plead; if they do not have contract, party shall state outline of cause in the Comitium or the Forum before midday."68 There are also agreements which, independently of statutes, p97are binding by virtue of the covenant itself; these are said to obtain at Law.

These, then, are the divisions of Law by means of which one should demonstrate the injustice or establish the justice of an act — which we see to be the end sought in an Absolute Juridical cause.

14 21 When Comparison69 is used to examine whether it was better to do that which the defendant says he did, or that which the prosecutor says should have been done, it will be proper first to ascertain from the conflict which was the more advantageous, that is, more honourable, practicable, and profitable.70 Next we ought to discover whether the defendant himself should have decided which was the more advantageous, or whether the right to determine this belonged to others. Then the prosecutor, in accordance with the procedure in a conjectural cause, will interpose a suspicion leading to the belief that the defendant had not by his act intended to prefer the better to the worse, but had carried out the business with wilful fraud on some plausible ground. Let the defendant's counsel, on his side, refute the conjectural argument referred to above. Then the question will be whether this development could have been prevented from reaching such a pass. 22 These points thus treated, the prosecutor will use the commonplace against one who has preferred the disadvantageous to the advantageous when he lacked the right of decision. The defendant's counsel, on his part, will use a commonplace in the form of complaint against those who deem it equitable to prefer the ruinous to the advantageous; and at the same time let him ask the accusers, and the jurors themselves, what they would have done had they been in the defendant's place, p99and he will set before their eyes the time, the place, the circumstances, and the defendant's deliberations.

15 Shifting the Question of Guilt takes place when the defendant refers the reason for his act to the crime committed by others.71 First we must examine whether the Law permits the shifting of the issue of guilt to another; next we must see whether the offence which is being imputed to another is as serious as that with which the defendant is charged; then whether the defendant ought to have transgressed in the same way as another had previously; next, whether a judicial decision ought not to have been rendered before he committed his act; then, in the absence of a judicial decision on the offence which is being imputed to another, whether a decision ought now to be rendered on a matter which has never become to trial.72 Here the prosecutor's commonplace is against one who believes that violence ought to prevail over judicial decisions.73 Furthermore, he will ask his adversaries what would happen if everyone else should do the same as they, and should inflict punishment upon persons who have not been convicted, contending that the adversaries have set the example. What if the accuser himself had wished to do likewise? The defendant's counsel will set forth the atrocity of the crime committed by those to whom he is shifting the issue of guilt; he will present before the eyes of the hearers the circumstances, the place, and the time so that they may think that it was either impossible or inexpedient for the matter to come to trial.74

16 23 Through the Acknowledgement75 we plead for pardon. The Acknowledgement includes the Exculpation and the Plea for Mercy.

p101 The Exculpation is our denial that we acted with intent. Subheads under Plea of Exculpation are Necessity, Accident, and Ignorance. These are to be explained first, and then, as it seems, it will be best to return to the Plea for Mercy. One must first consider whether it was the defendant's fault that he was brought to this necessity.76 After that we must inquire what means he had to avoid or lighten this superior force. Next, did he who offers necessity as an excuse try to do, or to contrive, what he could against it? Then, cannot some grounds for suspicion be drawn from the procedure in a conjectural issue, which would signify that the deed attributed to necessity was premeditated? Finally, if there was some extreme necessity, is it proper to deem this a sufficient excuse?

24 If the defendant says that he erred through ignorance,77 the first question will be: Could he or could he not have been uninformed? Next, did he or did he not make an effort to inform himself? Then, is his ignorance attributable to accident or to his own fault? For a person who declares that his reason fled because of wine or love or anger, will appear to have lacked comprehension through fault of character rather than ignorance;78 he will therefore not justify himself on the ground of ignorance, but will taint himself with guilt.79 Finally, by means of the procedure in a conjectural issue, we shall seek to discover whether he was or was not informed, and consider whether ignorance should be sufficient justification when it is established that the deed was committed.

p103 When the cause of the crime is attributed to accident,80 and counsel for the defence maintains that his client should be pardoned on that ground, it appears that all the points to be considered are precisely those prescribed above for necessity; for all these three divisions of Exculpation are so closely interrelated that virtually the same rules can be applied to them all.

Commonplaces81 in these causes are the following: that of the prosecutor against one who confesses a crime, yet holds the jurors up by prolix speech-making; for the defence, on humanity and pity,82 that it is the intention which should always be considered, and that unintentional acts ought not to be regarded as crimes.

17 25 We shall use the Plea for Mercy83 when we confess the crime without attributing it to ignorance, chance, or necessity, and yet beg for pardon. Here the ground for pardoning is sought in the following topics: if it seems evident that the good deeds of the suppliant have been more numerous or more weighty than the bad; if he is endowed with some virtue, or with good birth; if there is any hope that he will be of service in the event that he departs unpunished; if the suppliant himself is shown to have been gentle and compassionate84 in power; if in committing his mistakes he was moved not by hatred or cruelty, but by a sense of duty and right endeavour; if on a similar ground others also have been pardoned; if, in the event that we acquit him, no peril from him appears likely to be our lot in p105the future; if as a result of that acquittal no censure will accrue either from our fellow-citizens or from some other state. 26 Commonplaces: on humanity, fortune, pity, and the mutability of things. All these commonplaces, reversed, will be used by the adversary, what will also amplify and recount the defendant's transgressions. Such a cause is not admissible in the courts, as I showed in Book I,85 but because it is admissible either before the Senate or a council, I have decided that I should not pass it over.

When we wish to Reject the Responsibility, we shall throw the blame for our crime either upon some circumstance or upon another person.86 If upon a person, we must first examine whether the person to whom the responsibility is transferred had as much influence as the defendant will represent; next, whether the defendant could somehow have resisted this influence honourably or safely;87 and, even if the conditions are in fullest measure such as the defendant represents them to be, whether it is nevertheless proper to make allowances to him just because he acted on another's persuasion. Then we shall turn the controversy into one of fact and examine in detail whether there was premeditation. If the responsibility is transferred to some circumstance, virtually these same precepts and all those that I have set forth on Necessity88 are to be observed.

18 27 Since I believe that I have fully shown what arguments are advantageous used in each type of judicial cause, it seems to follow that I should p107explain how to develop89 these arguments elegantly and completely. To be sure, it is in general not hard to devise matter which should serve to support a cause, but to polish what has been devised and to give it a ready delivery is very hard. Indeed it is this faculty which keeps us from dwelling longer than necessary on the same topics, from returning again and again to the same place, abandoning a chain of argument before it has been completed, and making an inappropriate transition to the next argument. By the following method, therefore, we can ourselves remember what we have said in each place, and the hearer can perceive and remember the distribution of the parts in the whole cause and also in each particular argument.

28 The most complete and perfect argument, then, is that which is comprised of five parts: the Proposition, the Reason, the Proof of the Reason, the Embellishment, and the Résumé.90 Through the p109Proposition91 we set forth summarily what we intend to prove. The Reason, by means of a brief explanation subjoined, sets forth the causal basis for the Proposition, establishing the truth of what we are urging. The Proof of the Reason corroborates, by means of additional arguments, the briefly presented Reason. Embellishment we use in order to adorn and enrich the argument, after the Proof has been established. The Résumé is a brief conclusion, drawing together the parts of the argument.

Hence, to make the most complete use of these five parts, we shall develop an argument as follows:92

19 "We shall show that Ulysses had a motive in killing Ajax."93

"Indeed he wished to rid himself of his bitterest enemy, from whom, with good cause, he feared extreme danger to himself.94

"He saw that, with Ajax alive, his own life would be unsafe; he hoped by the death of Ajax to secure his own safety; it was his habit to plan an enemy's destruction by whatsoever wrongful means, when he could not by rightful, as the undeserved death of Palamedes bears witness.95 Thus the fear of danger p111encouraged him to slay the man from whom he dreaded vengeance, and, in addition, the habit of wrong-doing robbed him of his scruples at undertaking the evil deed.96

29 "Now not only do all men have a motive even in their least peccadillos, but certainly they are attracted by some sure reward when they enter upon crimes which are by far the most heinous. If the hope of gaining money has led many a man to wrongdoing, if from greed for power not a few have tainted themselves with crime, if numerous men have trafficked for a paltry profit with arrant deceit, who will find it strange that Ulysses, when under stress of acute terror, did not refrain from crime? A hero most brave, most upright, most implacable against his foes, harassed by a wrong, roused to anger — him the frightened, malevolent, guilt-conscious, guileful man wished to destroy; the treacherous man did not wish his bitter enemy to stay alive. To whom, pray, will this seem strange? For when we see wild beasts rush eagerly and resolutely to attack one another, we must not think it incredible that this creature, too — a wild, cruel, inhuman spirit — set out passionately to destroy his enemy; especially since in beasts we see no reasoning, good or bad, while he, we know, always had designs, ever so many, and ever so base."97

30 "If, then, I have promised to give the motive which impelled Ulysses to enter upon the crime, and if I have shown that the reckoning of a bitter enmity and the fear of danger were the factors, it must p113unquestionably be acknowledged that he had a motive for his crime."98

An argument comprised of the five parts is, then, the most complete, but its use is not always necessary. There is a time when the Résumé should be dispensed with — if the matter is brief enough to be readily embraced by the memory. There is a situation, too, in which the Embellishment should be omitted — if the matter proves to be too meagre for amplification and adornment. And if the argument is brief and the matter also slight or insignificant, then both the Embellishment and the Résumé should be left out. This rule which I have just set forth is to be observed for the last two parts in every argument.99 The fullest argument, therefore, is fivefold, the briefest threefold, and the mean fourfold, lacking either the Embellishment or the Résumé.

20 31 Defective arguments100 are of two kinds: one can be refuted101 by the adversary, and so belongs to the cause proper; the other, although likewise invalid, does not need to be refuted. If I do not add examples, you will be unable clearly to distinguish those arguments which it is proper to refute in rebuttal, and those which it is proper to ignore in disdainful silence and to abstain from refuting. This knowledge of defective arguments will confer a double advantage. It will warn us to avoid a fault in arguing, and teach us skilfully to reprehend a fault not avoided by others.

Since, then, I have shown that a perfect and full argument consists of five parts,102 let us consider the p115faults to be avoided in each single part of the argument, so that we may ourselves be able to shun these faults, and by the following rules test the argument of our adversaries in all its parts and undermine it in some one of these.

32 The Proposition is defective when an assertion based on some one part or on a majority of individuals, but not necessarily applicable to all, is referred to all, as if one should argue as follows: "All the poor would rather do wrong and acquire riches than do right and remain poor." If a speaker has presented this sort of Proposition in an argument, without caring to ask of what nature the Reason or the Proof of the Reason is to be, we shall easily refute his Proposition by showing that what is true of one dishonest poor man is being falsely and unjustly applied to all the poor.103

33 Again, the Proposition is defective when a rare occurrence is declared to be absolutely impossible, as follows: "No one can fall in love at a single glance, or as he is passing by."104 For inasmuch as some have fallen in love at first sight, and yet the speaker has said "no one," it is of no significance whatsoever that the experience occurs but rarely, provided we understand that it sometimes does occur, or even only that it can occur.

21 Again, the Proposition is defective when we submit that we have made a complete enumeration of the possibilities and pass by some pertinent one,105 as follows: "Since, then, it is established that the man was killed, he must have been killed by robbers, or by enemies, or by you, whom in his will he made p117part-heir. In that place robbers have never been seen. He had no enemy. If he was not killed by robbers, of whom there were none, nor by enemies, of whom he had none, it remains that he was slain by you." We shall refute a Proposition of this type by showing that others besides those whom the speaker has enumerated could have undertaken the crime.106 Here, for example, when he has said that the murder must have been committed by robbers, or by enemies, or by us, we shall say that it could have been committed by the man's slaves or by our co‑heirs. When we have in this way upset the enumeration made by our accusers, we have left ourselves wider room for defence. This then is another mistake always to be avoided in the Proposition — the omission of some pertinent item when we think that we have included all.

34 Again, the Proposition is defective if it is based on a false enumeration and we present fewer possibilities than there are in reality, as follows: "There are two things, men of the jury, which ever impel men to crime: luxury and greed."107 "But what about love?," some one will say, "ambition,108 superstition, the fear of death,109 the passion for power, and, in short, p119the great multitude of other motives?" Again the enumeration is false when the possibilities are fewer than we present, as follows: "There are three emotions that agitate all men: fear, desire, and worry." Indeed it had been enough to say fear and desire, since worry is necessarily conjoined with both.

22 Again, the Proposition is defective if it traces things too far back, as follows: "Stupidity is the mother and matter of all evils. She gives birth to boundless desires. Furthermore, boundless desires have neither end nor limit. They breed avarice. Avarice, further, drives men to any crime you will. Thus it is avarice which has led our adversaries to take this crime upon themselves."110 Here what was said last was enough for a Proposition, lest we copy Ennius and the other poets, who are licensed to speak as follows: "O that in Pelion's woods the firwood timbers had not fallen to the ground, cut down by axes, and that therefrom had not commenced the undertaking to begin the ship which now is named with the name of Argo, because in it sailed the picked Argive heroes who were seeking the golden fleece of the ram from the Colchians, with guile, at King Pelias' command. For then never would my mistress, misled, have set foot away from home."111 Indeed here p121it were adequate, if poets had a care for mere adequacy, to say: "Would that my misled mistress had not set foot away from home." In the Proposition, then, we must also carefully guard against this tracing of things back to their remotest origin; for the Proposition does not, like many others, need to be refuted, but is on its own account defective.112

23 35 The Reason is defective if it is inappropriate to the Proposition because either weak or groundless. It is weak when it does not conclusively demonstrate the correctness of the Proposition, as in Plautus: "To reprove a friend for a fault that deserves reproof is a thankless task, but in season useful and profitable." That is the Proposition. Let us see what Reason is presented: "For113 today I shall severely reprove my friend for a fault that much deserves reproof." His reckoning of what is useful is based on what he himself is about to do, and not on what it is proper to do. A Reason is groundless when it rests on a false supposition, as follows: "One must not flee from love, for it engenders the truest friendship."114 Or as follows: "One must spurn philosophy, for it p123produces inactivity and sloth."115 If all these Reasons were not false, we should also be obliged to admit the truth of their Propositions.

36 Again, a Reason is weak if the causal basis which it submits for the Proposition is not a compelling one. For example, Pacuvius: "The goddess Fortune is mad, blind, and stupid, some philosophers maintain. They declare that she stands upon a revolving globe of stone;116 whither Chance impels the stone, thither, they say, does Fortune fall. She is blind, they repeat, for that she fails wholly to perceive whereto she attaches herself. Moreover they declare that she is mad because she is cruel, uncertain, and inconstant; stupid because she knows not how to tell worthy from unworthy. But there are other philosophers who, on the contrary, deny that in our wretched life there any such thing as Fortune; there is, they say, Blind Accident. That this is more like the truth, is proved by the actual experience of life; even as Orestes now was king, and now became a beggar. Surely by the shipwreck of his property was this brought to pass, and did not befall by Chance or Fortune."117 Pacuvius here uses a weak Reason when they say that it is truer to ascribe the guidance of events to Accident rather than to Fortune, for whichever of these philosophical theories p125you hold, it could have happened that one who had been a king became a beggar.

24 37 Again, a Reason is weak when it appears to be presented as the Reason, but says precisely the same as was said in the Proposition,118 as follows: "A great evil to mankind is greed, for the reason that men wrestle with great and many ills on account of the boundless passion for money." Here the reason merely repeats in other words what has been said in the Proposition.

Again, a Reason is weak if the causal basis which it submits for the Proposition is inadequate to the demands of the subject,119 as follows: "Wisdom is useful because the wise have been in the habit of cultivating a sense of duty." Or, "It is useful to have true friends, for thus you may have persons with whom you can jest." In Reasons of this kind the Proposition is supported not by a universal or absolute reason, but by a feeble one.

Again, the Reason is weak if it can at choice be applied to another Proposition,120 as in the case of Pacuvius, who presents the same reason for calling Fortune blind as for calling her stupid.121

38 In the Proof of the Reason, there are many faults to be avoided in our discourse and also to be watched for in that of our adversaries. These must be considered the more carefully because an accurate Proof of the Reason supplies the most cogent support of the whole argument.

p127 Students in the rhetorical schools, therefore, in Proving the Reason, use a Dilemma,122 as follows: "You treat me, father, with undeserved wrong. For if you think Cresphontes wicked, why did you give me to him for wife? But if he is honourable, why do you force me to leave such a one against his will and mine?" Such a Dilemma will either be reversed against the user, or be rebutted in a single term.123 Reversed, as follows: "My daughter, I do not treat you with any undeserved wrong. If he is honourable, I have given him you in marriage; but if he is wicked, I shall by divorce free you from your ills." It will be a rebuttal in a single term if one or the other alternative is confuted, as follows: "You say: 'For if you think Cresphontes wicked, why did you give me to him for wife?' I thought him honourable. I erred. Too late I came to know him, and knowing him, I fly from him."124 25 39 Thus the rebuttal of a dilemma of this type is twofold: the first fuller, the second easier to invent.

p129 Again, the Proof of the Reason is faulty when we misapply a sign designating a variety of things in such a way as to indicate specifically a single thing,125 as follows: "Since he is pale, he must have been sick," or: "She must have become a mother, since she is holding a baby boy in her arms."126 These indications do not of themselves offer definite proof, but if there is concurrence of other like indications, such signs increase probability not a little.

Again, there is a fault when that which is directed against the adversary can as well fit some one else or the speaker himself,127 as follows: "Wretched are they who marry wives." "Yet you have married a second."128

Again, that is faulty which presents a banal defence, as follows: "He was led into crime by anger — or youth — or love."129 For if excuses of this sort are admitted, the greatest crimes will escape unpunished.

Again it is a fault to assume as certain, on the ground that "it is universally agreed upon," a thing which is still in dispute, as follows: "Ho! Look you, the gods who guide the movements of the beings that dwell above and below keep peace among themselves p131and join in concord."130 Thus Thesprotus, as Ennius has presented him, uses this example on his own authority, as though he had already demonstrated the fact by reasons sufficiently conclusive.

40 Again, that is faulty which appears to be pronounced too late, as it were, and after the matter has been concluded,131 as follows: "If it had entered my mind, fellow-citizens, I should not have been guilty of allowing the matter to come to such a pass, for I should have done this or that; but at the time this thought escaped me."

Again, there is a fault when that which stands as a manifest transgression is yet cloaked by some defence,132 as follows: "When all men were seeking you out and you had a most prosperous kingdom, I forsook you; now that all have deserted you, I, alone, in greatest peril, prepare to restore you."133

26 Again, that is faulty which can be taken in another sense than the speaker intended;134 for example, if some influential demagogue should in a speech before the Assembly say: "It is better to submit to kings than to bad laws." In fact, these words, though they may be uttered by way of amplification without sinister intent, are nevertheless because of the speaker's influence sure to breed a terrible suspicion.

41 Again, it is a fault to use false or general definitions;135 false, as if one should say that there is no p133injury except in the form of battery or of insulting language;136 general, like that which can be equally well applied to something else, as if one should say: "An informer, in short, is worthy of death; for he is a wicked and dangerous citizen." The speaker has offered a definition no more appropriate to an informer than to a thief, assassin, or traitor.

Again, it is a fault to advance proof what has been put in question,137 as if one should charge another with theft, and accordingly declare that he is a wicked, greedy, and deceitful man — and the evidence for this is that he has stolen from the speaker.138

Again, it is a fault to refute one disputed point by another disputed point,139 as follows: "You should not be satisfied, Censors, when this defendant says that he was unable to be present as he had sworn he would be. I ask, would he have given this same excuse to the tribe of the soldiers if he had failed to appear for military duty?" This is faulty because a matter not clearly settled or adjudged, but entangled with difficulties and based on a like point of dispute is cited as an example.

42 Again, a fault is present when a matter about which there is the sharpest controversy is not clearly settled and is allowed to pass as though it were agreed upon, as follows: "Plainly speaks the oracle's response if you would understand. He commands that the arms be given to a warrior such as was he who bore them, should we be zealous to take Pergamum. This warrior I profess to be. It is but fair p135that I have the use of my cousin's arms and that they be awarded me, either because I am his kin or, if you will, because I rival him in valour."140

Again, it is a fault to be inconsistent with oneself in one's own discourse and to contradict what one has said before, as follows: "On what ground shall I impeach him?", and then to develop this thought by the following reflection: "For if he has a conscience, why should you impeach an honourable man? But if he has a shameless character, to what avail then would you impeach one who, when he has heard the charge, deems it of little account?" 27 He seems to have provided himself with a sound enough reason for not making the accusation. What does he say next? "Now at last I will finish you off from the very first thread."141

43 Again, that is faulty which is said against the convictions of the judge or the audience142 — if the party to which they are devoted, or men whom they hold dear, should be attacked, or the sentiments of the hearer outraged by some fault of this kind.

Again, it is a fault not to prove everything which in the Proposition you have promised to prove.143

Again, one must beware of talking on a different subject from the one in dispute144 — and in regard to this kind of fault one must take care not to add anything to, or omit anything from, the subject, and not to change the question at issue and turn to quite p137another; like the case of Zethus and Amphion in Pacuvius — their controversy, begun on the subject of music, ends in a disputation on the theory of wisdom and the utility of virtue.145

Again, care must be taken that the prosecutor's charge shall not bear on one point, and the Exculpation of the defence on another. Many speakers on the side of the defence are often intentionally guilty of this irrelevance when pressed by the difficulties of their cause; for example, if a man accused of having sought a magistracy by bribery should say that in the army he had often received military gifts from generals. If we carefully watch for this fault in the speech of our adversaries we shall often detect that they have nothing to say to the point.

44 Again, it is a fault to disparage an art or science or any occupation because of the faults of those engaged in it,146 as in the case of those who blame rhetoric because of the blameworthy life of some orator.147

Again, it is a fault, when you establish that a crime was committed, to believe you are thereby proving that it was committed by a specific person, as follows: "It is established that the corpse was disfigured, swollen, and discoloured; therefore the man was killed by poison." Then, if the speaker concentrates, p139as many do, on proving that poison was administered, he will be harassed by a not insignificant fault. The question is not whether the crime was committed, but who committed it.

28 45 Again, it is a fault in making a comparison to bring out one term and either suppress mention of the other, or treat it rather cursorily;148 for example, if in deciding by a comparison whether it is better for the populace to receive, or not to receive, wheat, the speaker should on the one hand really take care to enumerate the benefits, but on the other should pass over the disadvantages and whatever he wishes to suppress, or should mention only those disadvantages which are least serious.149

Again, it is a fault in making a comparison to think it necessary to disparage one thing when you praise the other;150 for example, if the question should arise, who are to be held in greater honour for services to the Roman republic, the Albensians or the Pinnensian Vestini,151 and the speaker should attack one or the other. Indeed it is not necessary, if you prefer one, to disparage the other; for you can manage, when you have given greater praise to one, to allot some portion of praise to the other, so that you may not be thought to have combated the truth under influence of partiality.

p141 Again, it is a fault to build upon a name or appellation a dispute which usage can best decide.152 For example, Sulpicius153 had opposed his veto to the recall of the exiles who had not been permitted to plead their cause; later he changed his mind, and proposing the same law, said he was offering a different proposal, because he had changed the name. For, he said, he was recalling not "exiles," but "those ejected by violence" — as though the dispute concerned the name by which to call those people, or as though all to whom water and fire have been formally forbidden are not called exiles. True, we perhaps excuse Sulpicius if he had a reason for doing this.154 Yet let us understand that it is a fault to raise a controversy on account of a change in names.

29 46 Since Embellishment consists of similes, examples, amplifications, previous judgements, and the other means which serve to expand and enrich the argument, let us consider the faults which attach to these.

p143 A Simile is defective if it is inexact in any aspect, and lacks a proper ground for the comparison, or is prejudicial to him who presents it.155

An Example is defective if it is either false, and hence refutable, or base, and hence not to be imitated, or if it implies more or less than the matter demands.156

The citing of a Previous Judgement will be faulty157 if the judgement applies to an unlike matter, or one not in dispute, or if it is discreditable, or is of such a kind that previous decisions either in greater number or of greater appropriateness can be offered by our adversaries.

Again, it is a fault, when our adversaries admit a fact, to devote an argument to establishing it as a fact;158 for it should rather be amplified.

Again, it is a fault to amplify what one should prove;159 for example, if a man should charge another with homicide, and before he has presented conclusive arguments, should amplify the crime, avowing that there is nothing more shameful than homicide. The question is, in fact, not whether the deed is or is not shameful, but whether it was committed.

The Résumé is defective if it does not include every point in the exact order in which it has been presented; if it does not come to a conclusion briefly;160 and if the summary does not leave something precise and stable, so as to make clear what the Proposition p145was, then what has been established by the Reason, by the Proof of the Reason, and by the argument as a whole.

30 47 Conclusions, among the Greeks called epilogoi,161 are tripartite, consisting of the Summing Up, Amplification, and Appeal to Pity. We can in four places use a Conclusion: in the Direct Opening, after the Statement of Facts, after the strongest argument, and in the Conclusion of the speech.

The Summing Up162 gathers together and recalls the points we have made — briefly, that the speech may not be repeated in entirety, but that the memory of it may be refreshed; and we shall reproduce all the points in the order in which they have been presented, so that the hearer, if he has committed them to memory, is brought back to what he remembers. Again, we must take care that the Summary should not be carried back to the Introduction or the Statement of Facts. Otherwise the speech will appear to p147have been fabricated163 and devised with elaborate pains so as to demonstrate the speaker's skill, advertise his wit, and display his memory. Therefore the Summary must take its beginning from the Division. Then we must in order and briefly set forth the points treated in the Proof and Refutation.

Amplification is the principle of using Commonplaces to stir164 the hearers. To amplify an accusation it will be most advantageous to draw commonplaces from ten formulae.

48 (1) The first commonplace165a is taken from authority, when we call to mind of what great concern the matter under discussion has been to the immortal gods, or to our ancestors, or kings, states, barbarous nations, sages, the Senate; and again, especially how sanction has been provided in these matters by laws.

(2) The second commonplace165b is used when we consider who are affected by these acts on which our charge rest; whether all men, which is a most shocking thing; or our superiors, such as are those p149from whom the commonplace of authority is taken; or our peers, those in the same situation as we with respect to qualities of character, physical attributes, and external circumstances;166 or our inferiors, whom in all these respects we excel.

(3) By means of the third commonplace167 we ask what would happen if the same indulgence should be granted to all culprits, and show what perils and disadvantages would ensue from indifference to this crime.

(4) By means of the fourth commonplace168 we show that if we indulge this man, many others will be the more emboldened to commit crimes — something which the anticipation of a judicial sentence has hitherto checked.

(5) By the fifth commonplace169a we show that if once judgement is pronounced otherwise than as we urge, there will be nothing which can remedy the harm or correct the jurors' error. Here it will be in point for us to make a comparison with other mistakes, so as to show that other mistakes can either be moderated by time or corrected designedly, but that so far as the present mistake is concerned, nothing will serve either to alleviate or to amend it.

49 (6) By means of the sixth commonplace169b we show that the act was done with premeditation, and declare that for an intentional crime there is no excuse, although a rightful plea of mercy is provided for an unpremeditated act.

(7) By means of the seventh commonplace169c we show it is a foul crime, cruel, sacrilegious, and tyrannical; such a crime as the outraging of women, or one of those crimes that incite wars and life-and‑death struggles with enemies of the state.

p151 (8) By means of the eighth commonplace170 we show that it is not a common but a unique crime, base, nefarious, and unheard‑of, and therefore must be the more promptly and drastically avenged.

(9) The ninth commonplace consists of comparison171 of wrongs, as when we shall say it is a more heinous crime to debauch a free-born person than to steal a sacred object, because the one is done from unbridled licentiousness and the other from need.

(10) By the tenth commonplace we shall examine sharply, incriminatingly, and precisely, everything that took place in the actual execution of the deed and all the circumstances that usually attend such an act, so that by the enumeration of the attendant circumstances the crime may seem to be taking place and the action to unfold before our eyes.172

31 50 We shall stir Pity173 in our hearers by recalling the vicissitudes of fortune; by comparing the prosperity we once enjoyed with our present adversity;174 by enumerating and explaining the results that will follow for us if we lose the case;175 by entreating those whose pity we seek to win, and by submitting ourselves to their mercy; by revealing what will befall our parents, children, and other kinsmen through our disgrace,176 and at the same time p153showing that we grieve not because of our own straits but because of their anxiety and misery; by disclosing the kindness, humanity, and sympathy we have dispensed to others; by showing that we have ever, or for a long time, been in adverse circumstances; by deploring our fate or bad fortune; by showing that our heart will be brave and patient of adversities. The Appeal to Pity must be brief, for nothing dries more quickly than a tear.177

In the present Book I have treated virtually the most obscure topics in the whole art of rhetoric; therefore this Book must end here. The remaining rules, so far as seems best, I shall carry over to Book III. If you study the material that I have presented, both with and without me, with care equal to the pains I have taken in assembling it, I, on my part, shall reap the fruit of my labour in your sharing the knowledge with me, and you, on yours, will praise my diligence and rejoice in the learning you have acquired. You will have greater understanding of the precepts of rhetoric, and I shall be more eager to discharge the rest of my task. But that this will be so I know quite well, for I know you well. Let me turn at once to the other rules, so that I may gratify your very proper wish — and this it gives me the greatest pleasure to do.


The Loeb Editor's Notes:

1 1.ii.2.

2 1.ii.3.

3 Cicero, De Inv. 1.vii.9: princeps omnium partium.

4 3.i.1‑viii.15.

5 1.iii.4‑x.18.

6 1.x.18‑xv.25.

7 1.xvi.25‑xvii.27.

8 Implied in 1.xvii.27.

9 The scheme of organization under Proof and Refutation is as follows: (a) The Types of Issue (1.x.18 to end of Bk. 1); (b) Invention applied to the Types of Issue (2.ii.3‑xvii.26); (c) the tractatio of the arguments devised by Invention (2.xviii.27‑xxix.46).

10 ἐπιχειρήματα.

11 2.xviii.27‑xix.30.

12 2.xx.31‑xxix.46.

13 2.xxx.47‑xxxi.50.

14 εἰκός.

15 αἰτία and ἀγωγή (see Anon. Seg. 182, in Spengel-Hammer 1[2].384). The Rhet. ad Alex., ch. 7 (1428AB), divides the Probable into natural feelings (φύσις), habit (ἔθος), and love of gain (κέρδος). Cicero, De Inv. 2.v.16 ff., derives all conjecture from consideration of the motive, the person, and the act, distinguishing in motive passion (impulsio) and premeditation (ratiocinatio). Quintilian, 7.2.7 ff., treats conjecture from the point of view of the act and the author (his identity, his intention [animus]).

16 Cf. Cicero, De Inv. 2.v.17‑viii.28.

17 Cf. in Aristotle, Rhet. 2.23 (1399B 30ff.), the topos of Inducements and Deterrents; and see note on 2.xxi.34 below.

18 Cf. Cicero, De Inv. 2.x.32.

19 Cf. Cicero, De Inv. 2.x.33.

20 Quintilian, 7.2.34, discusses charges based on the past life of the defendant.

21 Cf. Cicero, De Inv. 2.x.33 and 2.xvi.50.

22 Cf. Cicero, De Inv. 2.x.34.

23 Cf. Cicero, De Inv. 2.xi.35.

24 Cf. Cicero, De Inv. 2.xi.37. In Gellius, 14.2.8, a man against whom the claim of a sum of money was made pleads that the case concerns a claim before a private judge, and not a question of morals before the censors.

25 Cf. Cicero, De Inv. 2.vii.24.

26 σημεῖον. Different from the usual signum of the rhetoricians; see Rhet. ad Alex., chaps. 7 (1428A), 12 (1430B‑1431A), and 14 (1431AB), Aristotle, Rhet. 1.2 (1357AB); Cicero, De Inv. 1.xxx.48, and Quintilian, 5.9.1 ff.; also Kroll, Philologus 89 (1934), 334‑341. Cf. Cicero, Pro Caelio 22.53: "I might in my speech search every lurking-place of suspicion. No motive, no place, no opportunity, no accomplice, no hope of succeeding in the crime, no hope of escaping detection, no means at all, no trace of heinous guilt will be found."

27 For the genitive form die, see W. M. Lindsay, The Latin Language, Oxford, 1894, pp382‑3; Neue-Wagener, Formenlehre der latein. Sprache (3rd ed., Leipzig, 1902), 1.573‑4; Kühner-Holzweissig, Ausführliche Grammatik der latein. Sprache (2nd ed., Hannover, 1912), 1.405‑6.

28 Cf. Aristotle, Rhet. 2.5 (1383A): "We feel confidence if . . . there are means of aid — either numerous means or great, or both numerous and great."

29 Cf. Cicero, De Inv. 2.xiii.43. Argumentum is virtually equivalent to the σημεῖον (fallible sign) of the Rhet. ad Alex. (ch. 12, 1430B). The tradition thus antedates Aristotle and persisted against his theory of σημεῖον, which joined with εἰκός (the probable proposition) in forming the material of the enthymeme (E. M. Cope, An Introd. to Aristotle's Rhetoric, London and Cambridge, 1867, pp160 ff.). The communes loci dealing with the περιστάσεις are akin to the Aristotelian kind of topoi, but are not specifically Aristotelian. They belong in the Hermagorean system of Issues, but the specific division of σημεῖα into three periods goes back to pre-Aristotelian rhetorical theory (Rhet. ad Alex., l.c.). Neocles (first or second Christian century) in Anon. Seg. 153 (Spengel-Hammer 1[2].379) divides probabilities, signs, and examples into three types according to the same chronological scheme, "as cloud indicating storm, smoke fire, and blood murder." Σημεῖα and εἰκότα were used by the Attic orators as early as Antiphon, and by Thucydides; see Friedrich Solmsen, Die Entwicklung der aristotelischen Logik und Rhetorik (Neue Philol. Untersuch. 4), Berlin, 1929, pp26‑7, and Antiphon-studien (Neue Philol. Untersuch. 8), Berlin, 1931, pp50 ff.

30 Cf. Galen, De symptom. different. (ed. Kühn, 7.43), "the symptom (σύμπτωμα) which some physicians call ἐπιγέννημα (after-symptom); Chrysippus, fragm. 125, ed. Alfred Gercke, Jahrbücher für Class. Philol., Suppl. 14 (1885), 738: κατ᾽ ἐπακολούθημά τι καὶ σύμπτωμα.

31 Defensor is here used as if it meant reus. Cf. also the last sentence under Comparison in 2.iv.6, and in 2.xiv.22; 2.xv.22, end; Cicero, De Inv. 2.xxviii.83 and 86, and 2.xxix.88; and Wenger, Institutes of the Roman Law of Procedure, p91, note 44.

32 βεβαίωσις in Rhet. ad Alex., ch. 36 (1442B).

33 The treatment of commonplaces goes back to Protagoras and Gorgias (Cicero, Brutus 12.46‑7, Quintilian, 3.1.12). On the topoi of Aristotle see Cope, An Introd. to Aristotle's Rhetoric, pp124‑131. Cf. Cicero, De Inv. 2.xv.48, who makes a twofold classification of the matters amplified: doubtful and certain; Quintilian, 5.12.15‑16; and note on 2.xxx.47 below.

34 For a, ab meaning on the side of cf. 2.xxvii.43 (ab reo), and see Schmalz-Hoffmann, p523.

35 The non-technical means of persuasion (πίστεις ἄτεχνοι), those that are not inherent in the art, that are not supplied by our own efforts. See Aristotle, Rhet. 1.2 (1355B) and 1.15 (1375A), who lists five: laws, witnesses, contracts, evidence given under torture, and the oath. The theory is pre-Aristotelian; cf. Rhet. ad Alex., chaps. 7 (1428A) and 14 (1431B) ff., on the supplementary proofs (ἐπίθετοι πίστεις): the speaker's own opinion, witnesses, admissions under torture, and oaths. The employment of these proofs long antedated argumentation in the law-courts; when argumentation came into being its first function was to interpret these "already existing" proofs.

36 μάρτυρες.

37 βάσανοι. To be distinguished from iudicii quaestio (1.xvi.26). Torture was administered under the direction of the court, but not in the presence of the jury. The torture of free men was not legal.

38 2.ii.3‑v.8.

39 For the same sentiment cf. Anon. Seg. 189, in Spengel-Hammer 1(2).386; Hermogenes, De Stat. 3 (ed. Rabe, pp45‑6); also Aristotle, Rhet. 1.15 (1376A): The speaker who lacks witnesses on his side will argue "that probabilities cannot be bribed to mislead the court, and are never convicted of false witness."

40 ἀληθινὰ πράγματα (Longinus, in Spengel-Hammer 1[2].195.18), as distinguished from school exercises; cf. 4.xliv.58.

41 Cf. Cicero, De Inv. 2.xliii.125.

42 ἀκριωοδίκαιος. Cf. Cicero, Pro Caecina 23.65: [People who feel that they have equity on their side say that] "a pettifogger follows the letter; a good juror defends the will and intention of the framer."

43 The departments of Law, considered in 2.xiii.19‑20 below.

44 κοινὸν δίκαιον, the "unwritten statutes of heaven that stand fast for ever" (ἄγραπτα κἀσφαλῆ θεῶν νόμιμα) of Sophocles, Antig. 454‑5. (Sophocles apparently echoes an argument used by Pericles in an actual case; see Lysias, Adv. Andoc. 10). Cf. Aristotle, Rhet. 1.10 (1368B): "By universal law I mean all the unwritten principles that are supposed to be acknowledged by all mankind"; 1.13 (1373B): "For indeed there is, as all men to some extent divine, a natural and universal notion of right and wrong, binding on them even if they have no mutual intercourse or covenant"; 1.15 (1375A): "It is clear that if the written law is adverse to our case, he [the speaker] must appeal to the universal law, and to the principles of equity as representing a higher order of justice. [He must say] that [the judge's obligation to decide] 'according to my best judgement' means that the judge will not be guided simply and solely by the letter of the statute" (tr. Lane Cooper); Cope, An Introd. to Aristotle's Rhetoric, pp239‑44. Cf. also the Stoic Chrysippus in Diogenes Laertius 7.88: "The common law, the right reason pervading all things;" and Cicero, De Offic. 3.17.69.

45 See 2.xiii.19‑20.

46 Honesta res and rectum are defined in 3.ii.3 below, the departments of Law in 2.xiii.19‑20 below.

47 Isocrates, Panath. 26‑28, on the so‑called eristic discussions "which our young men take greater pleasure in than they ought," holds them unsuitable for grown men. In Cicero, De Oratore 2.26.111, Antonius blames the rhetoricians for not knowing ambiguities as well as the dialecticians understood them (see also Orator 32.115), whereas Dionysius Halic., De Composit. Verb., ch. 4, says that treatises such as those of Chrysippus dealing, among others, with ambiguous propositions offer no benefit to civil oratory, at least with respect to charm and beauty of style. The contempt for dialectic is Epicurean; cf. Diogenes Laertius 10.31: "Dialectic the Epicureans reject as superfluous"; Cicero, De Fin. 1.7.22, on Epicurus: "He does not show how to detect ambiguities"; ibid., 2.6.18. Chrysippus maintained that every word is by nature ambiguous, while Diodorus Cronus asserted that no word is ambiguous (Gellius 11.12).

48 Our author here resumes the controversy between Saturninus and Caepio treated in 1.xii.21 above.

49 2.xiii.19‑20 below.

50 For the meaning of these terms see Moriz Wlassak, Sav. Zeitschr. 42 (1921), 408 ff., and Sitzungsber. Akad. der Wissensch. in Wien (Philos.-hist. Kl.) 202, 3 (1924), 168, note 37; Wenger, Institutes of the Roman Law of Civil Procedure, p259, note 10, and p416. All enforceable rights are exhausted by the triad: actio refers to the legis actio, petitio comprehends obligations without regard to the form of the legal procedure, and persecutio refers probably to the rights in general embraced under prosecution, including such praetorian remedies outside an ordinary lawsuit as interdicta (see Greenidge, The Legal Procedure of Cicero's Time, pp75‑8, Wenger, pp245 ff.) and in integrum restitutiones (see Wenger, pp244‑5).

51 2.xiii.19‑20 below.

52 Arising from a gap in the law, which is filled by a process of deduction.

53 See 1.xiv.24 above.

54 Cf. Cicero, De Inv. 2.liii.160 ff. Johannes Stroux ("Summum ius summa iniuria," in Festschr. Speiser-Sarasin, Leipzig, 1926, and "Griechische Einflüsse auf die Entwickl. der röm. Rechtswissensch. gegen Ende der republikan. Zeit," in Atti del Congr. Internaz. di diritto Rom. (Roma), Pavia, 1934, 1.111‑132; now both printed as Röm. Rechtswissensch. und Rhetorik, Potsdam, 1949) argues that rhetorical theory had a substantial influence on Roman jurisprudence (the sequence being from Greek philosophy to Greek rhetoric, thence to Roman rhetoric, finally to Roman juristic theory and practice), but many students of Roman Law believe that, though useful for pleading, it was not of real significance for directing judicial decisions. Thus the status system as a whole seems to have had no influence upon the jurists, with the possible exception of the doctrines of Letter and Spirit and of Definition (1.xi.19, 2.ix.13‑x.14; 1.xii.21, 2.xii.17); cf., for example, Quintilian, 7.6.1. The rhetorician's method of interpretation is rationalistic and schematic, the jurist's is casuistic. See A. A. Schiller, Virginia Law Rev. 17 (1941), 733‑768, esp. 750 ff.; Fritz Schulz, Principles of Roman Law, Oxford, 1936, pp129 ff., and History of Roman Legal Science, Oxford, 1946, pp53 ff., 71 ff.; J. Himmelschein, "Studien zu der antiken Hermeneutica iuris, in Symbolae Friburgens. in honorem Ottonis Lenel, Leipzig, 1935, pp373‑424; Artur Steinwenter, "Rhetorik und römischer Zivilprozess," Sav. Zeitschr. 67 (1947), 69‑120; H. F. Jolowicz, Historical Introduction to the Study of Roman Law, 2nd ed., Cambridge, 1952, pp576 f. Note, too, that such sources of Law as the Edict and the responsa prudentium are missing from our author's list; see Jolowicz, ch. 5. On the philosophical (Stoic) background of our author's theory of Law see also Kroll, Philologus 90 (1935), 211‑215.

55 φύσις. In the Roman conception ius civile is the Law which each people forms for itself and is peculiar to its state; the ius gentium (not the modern law of nations), on the other hand, is the Law common to all peoples. The latter became identified with Natural Law, which was originally a Greek concept. See Gaius, Inst. 1.1, and Elemér Balogh, in Studi in onore di Pietro Bonfante (Milan, 1930), 4.677‑9. Alfred Pernice, Sav. Zeitschr. 22 (1901), 62‑3, denying the juristic value of these "sources of Law," points out that Nature cannot be a source of positive Law. Cf. Cicero, De Inv. 2.xxii.67.

56 νόμος. The definition, as against the others in this section, is Roman; cf. Gaius, Inst. 1.3: "A statute is a command and ordinance of the people." But our author's definition seems too inclusive; for example, not every action of a Popular Assembly made Law. On sanctio (consecration) see Mommsen, p882, and p901, note 5.

57 Twelve Tables 1.1.

58 συνήθεια. Students of Roman jurisprudence deny that the concept of customary law held by the rhetoricians (to whom it was useful, for tradition is a valid source for argumentation) was as such employed by the jurists of this period. See Pernice, Sav. Zeitschr. 22 (1901), 59 ff.; Artur Steinwenter, in Studi in onore di Pietro Bonfante, 2.421‑40; A. A. Schiller, Virginia Law Rev. 24 (1938), 268‑82; Fritz Schulz, History of Roman Legal Science, p74; C. W. Westrup, Introd. to Early Roman Law III, (Copenhagen and London, 1939), 127 ff.

59 One of only a few situations in Roman private law described as of customary origin; see Schiller, Virg. Law Rev. 24.275.

60 κεκριμένον.

61 M. Livius Drusus was praetor urbanus c. 115 B.C., Sextus Julius Caesar in 123 B.C.

62 C. Caelius (Caldus? See P. F. Girard, Mélanges de droit romain [Paris, 1923] 2.398, note 2), before 103 B.C. The mimi specialised in broad and coarse humour (iocus illiberalis). Lucilius used licence in attacking other men (e.g., the poets Accius and Pacuvius), but resented attacks upon himself.

63 See R. E. Smith, "The Law of Libel at Rome," Class. Quart. 44 (1951), 171‑2.

64 Publius Mucius Scaevola, probably in 136 B.C. See 1.xiv.24 above.

65 Corresponds to καλὸν καὶ δίκαιον, ἐπιεικές, ἴσον, yet the Roman term emphasizes the social point of view, implying more than "fairness." The bonum is connected with bona fides. See Fritz Pringsheim, "Bonum et Aequum," Sav. Zeitschr. 52 (1932), 78‑155; Westrup, op. cit., III, 1.21 ff. The definition is philosophical, and Greek in origin, but the illustration is from Roman law. According to Stroux, "Summum ius summa iniuria," the Aristotelian doctrine of equity came to the Roman Forum through the Peripatetic and Academic writers, and thence to the interpretatio iuris, but most students deny such an influence upon the Roman jurists, or minimize it. See Ernst Levy, Sav. Zeitschr. 48 (1928), 668‑78; Schiller, Virg. Law Rev. 27.753 ff.; Schulz, History of Roman Legal Science, pp74 f.

66 This is the earliest text expressly mentioning substitution in Roman procedure. On procedural representation see Wenger, Institutes of the Roman Law of Civil Procedure, pp88 ff.

67 συνάλλαγμα.

68 Twelve Tables 1.6‑9. The Comitium adjoined the Forum on the northwest; although the two areas were not separated by a natural line, each kept its separate identity until the middle of the second century B.C.

69 Our author now turns to the Assumptive Juridical Issue. Cf. 1.xiv.24 and 1.xv.25 above, and Cicero's fuller, and generally clearer, treatment in De Inv. 2.xxiv.72 ff.; also the figure Comparison (similitudo), 4.xlv.59 below.

70 Cf. the definition of Advantage, 3.ii.3 below.

71 Cf. 1.xv.25 above, and Cicero, De Inv. 2.xxvi.78 ff. (relatio criminis).

72 Cf. Cicero, De Inv. 2.xxvii.80 f.

73 The problem is that exploited in tragedy, concerning the right to take justice into one's own hands.

74 Cf. Cicero, De Inv. 2.xxviii.84 f.

75 Cf. Cicero, De Inv. 2.xxxi.94.

76 Cf. Cicero, De Inv. 2.xxii.98 ff.

77 Cf. Cicero, De Inv. 2.xxxi.95, and Rhet. ad Alex., ch. 4 (1427A).

78 Cf. Aristotle, Eth. Nic. 3.3 (1111 A24): "For it is perhaps a mistake to say that acts committed through anger or desire are involuntary."

79 The Rhet. ad Alex., ch. 7 (1429A), admits such a defence as a last resort.

80 Cf. Cicero, De Inv. 2.xxxi.96.

81 Cf. Cicero, De Inv. 2.xxxiii.101 f.

82 For the commonplaces on pity see also 2.xvii.26 and especially 2.xxxi.50 below.

83 Cf. Cicero, De Inv. 2.xxxv.106, and Pro Ligario.

84 For mansuetus et misericors cf. Sallust, Cat. 54.2 (on Caesar), 52.11 and 52.27 (Cato), and 34.1 (Q. Marcius); Cicero, Pro Murena 41.90, Pro Sulla 33.93.

85 1.xiv.24. Cf. Cicero, De Inv. 2.xxxiv.105.

86 Cicero, De Inv. 2.xxix.86‑xxx.94, considers also the situation (remotio rei) in which the defendant denies that the act he is charged with concerned him or his duty. Cf. also the Exculpation, 2.xvi.23 above.

87 See the definition of Advantage, 3.ii.3 below.

88 2.xvi.23 above.

89 Tractatio and inventio supplement each other; Cicero, De Oratore 2.41.176: "We now see that it is by no means enough to find what to say, unless you are able to handle it (id inventum tractare) skilfully once found;" cf. also ibid., 2.27.120. The tradition is Isocratean; Paneg. 9: "For the deeds of the past are a heritage common to us all, but the ability to make full use (= χρῆσις) of them at the proper time, in each instance to form the right conceptions about them, and to set these forth in a finished style, is the special gift of them that know." Cf. 1.ii.2, 2.ii.2, 3.iv.7, 3.vi.11.

90 Cicero, De Inv. 1.xxxvii.67, divides the deductive argument (argumentatio per ratiocinationem) into propositio, propositionis approbatio, assumptio, assumptionis approbatio, and complexio.

While Aristotle in forming arguments constructs the enthymeme in close analogy with the logical syllogism (e.g., Rhet. 1.2, 1356B), our author, with the practical speaker in mind in this meagre treatment, shows little interest in the syllogistic form. The epicheireme is more complicated than the enthymeme (of which it is a later name). Aristotle's enthymeme (and, later, also Quintilian's [epicheireme]; see 5.14.6) comprised two premises and conclusion; the epicheireme normally comprised four premises. Aristotle took the premises for granted; the later rhetoricians thought it necessary to prove each. The epicheireme may have developed under Stoic influence. Cicero, De Inv. 1.xxxv.61, makes it clear that the quinquepartite epicheireme grew out of Aristotle's syllogism; Theophrastus, following observations of Isocrates, may have been the first to introduce it into rhetoric. Cicero's syllogistic form (ratiocinatio) is logical; he treats it on a par with Socratic induction. See Cicero, De Inv. 1.xxxiv.57 ff.; Quintilian, 5.10.1 ff. and 5.14.5 ff.; Wilhelm Kroll, Das Epicheirema, in Sitzungsber. Akad. der Wissensch. in Wien (Philos-hist. Kl.), 216.2 (1936); Friedrich Solmsen, Amer. Journ. Philol. 62 (1941), 39 ff., 169 ff. It is doubtful whether the epicheireme as here described was very widely used in actual oratory.

91 πρότασις, λῆμμα, hereafter in Book 2 called expositio by our author.

92 Cf. Cicero, De Inv. 1.xxxviii.68.

93 The Proposition. Here begins a progymnasma (σύγκρισις of persons). The theme was first taken up in 1.xi.18 above. Thiele, Hermagoras, pp159‑163, conjectures that the source of both theme (originally a ὅπλων κρίσις or an Αἴας of tragedy) and treatment by five-fold epicheireme is Hermagoras. Cf. Quintilian, 4.2.13; Ulysses replies that he did not do the deed, and had no quarrel with Ajax, and that their conflict was concerned only with renown.

94 The Reason.

95 Ulysses hated Palamedes because he had exposed Ulysses' deceit in feigning madness so as to avoid joining the Greek expedition to Troy, and because Ulysses envied his fame for wisdom. According to another tradition this hatred arose from the severe reproof Palamedes dealt out to Ulysses for returning empty-handed from a foraging expedition. The stories of the vengeance also differ. Ulysses and Diomedes induced him to descend into a well in order to find alleged treasure, and then stoned him; or they drowned him while he was fishing; or with Agamemnon they bribed a servant of Palamedes to conceal under Palamedes' bed a forged letter from Priam offering a bribe of gold, accused Palamedes of treachery, and when the letter (or gold) was discovered, caused him to be stoned by the Greeks.

96 The Proof of the Reason.

97 The Embellishment. Quintilian, 5.14.6, knows of the exornatio as a part of the epicheireme.

98 The Résumé.

99 Arrangement accommodated to circumstance, as in 3.ix.17 below. Cf. Cicero, De Inv. 1.xxxix.70 ff.

100 Our author omitted to use a transition here. Cicero, De Inv. 1.xlii.78 ff., rightly considers the defective arguments under Refutation (reprehensio).

101 Reprehensioλύσις.

102 Cf. Cicero, De Inv. 1.xlii.79.

103 The fallacy of False Generalization. Cf. Cicero, De Inv. 1.xliii.80.

104 In Cicero, De Inv. 1.xliii.80, this observation is assigned to the speech delivered by C. Scribonius Curio (first of the three orators of that name, praetor in 121 B.C.) in defence of Servius Fulvius in a prosecution for incest. According to Cicero, Brutus 32.122, the speech was once esteemed a masterpiece.

105 The fallacy of Incomplete Disjunction. Cf. Cicero, De Inv. 1.xlv.84.

106 Cf. Cicero, De Inv. 1.xlv.85.

107 Cf. Cato in Livy, 34.4.1 ff.: "Often have you heard me complain . . . that the state is suffering from the two opposing vices, luxury and greed, which have been the curse and destruction of every great empire;" Cicero, Pro S. Rosc. Am. 27.75: "The city creates luxury; from luxury greed inevitably springs, and from greed bursts forth audacity, the source of every crime and wrong;" Longinus, De Sublim. 44.6:º "For the love of money . . . and the love of pleasure enslave us;" Isocrates, Antid. 217: "Well then, I say that every man does everything he does for the sake of pleasure or gain or glory;" Aristotle, Rhet. 1.10 (1369A): "Thus every act of men is necessarily done from one or other of seven causes: chance, nature, compulsion, habit, calculation, passion, or desire."

108 Aristotle, Polit. 2.9 (1271A), declares greed and ambition to be the commonest motives of crime; cf. also Timon the Misanthrope in Stobaeus, 3.10.53: "The components of evil are greed and the love of glory"; and Hor. Serm. 1.4.25‑6: "Take anyone at all from amid a crowd — he is suffering from either greed or some wretched ambition."

109 The sentiment is Epicurean; cf., for example, Lucretius 1.80 ff., 3.59 ff.

110 In Theon 5 (Spengel 2.99 and 105) and in Stobaeus, 3.10.37, Bion of Borysthenes (first half 3rd century B.C.) is quoted as saying that avarice is mother city (μητρόπολις) of all evil; in Diogenes Laertius, 6.50, the saying is attributed to Diogenes the Cynic (fourth century B.C.). This sentiment was popular in the rhetorical schools and philosophical diatribes. Cf. Sallust, Cat. 10: "These [the lust for money and the lust for power] were, I might say, the source (materies) of all evils"; Calpurnius Flaccus 8: "A man long happy is substance (materia) for all disasters," and see also Otto, s.v. "avaritia" 5, p51.

111 Medea's nurse in the Prologue of Ennius' Medea Exul, which was a reproduction of Euripides' Medea. Ennius here observed the sequence of causes more carefully than Euripides had done; see Schol. in Eurip., Med. 1.1 ff., ed. Ed. Schwartz, 2.140 ff. Cf. Cicero, De Inv. 1.xlix.91; Quintilian, 5.10.83; Ribbeck, 1.49‑50.

112 Its faultiness is self-evident. Cf. Plato, Sophist 252C: "They do not need others to refute them, but, as the saying goes, they have an enemy and adversary who dwells in the same house with them."

113 Trinummus 23‑6. A proper translation would be: "For instance, today." Nam, here appearing in colloquial speech, introduces a particular instance of a general statement; it is transitional rather than confirmatory, and so the charge that Megaronides uses a false syllogism is unjust. Cicero, De Inv. 1.l.95, is guilty of the same misunderstanding. See W. M. Lindsay, Syntax of Plautus, Oxford, 1907, p100.

114 Cf. Aristotle, Rhet. 2.24 (1401B), illustrating, among the sham enthymemes, the topos from a sign (a single instance used to prove the rule): "For example, one might say that lovers are of service to their countries, for it was the love of Harmodius and Aristogeiton which brought about the downfall of the tyrant Hipparchus."

115 Cf. R. W. Emerson in "The American Scholar": "Inaction is cowardice, but there can be no scholar without the heroic mind." For other echoes of the opposition to philosophy and art see 2.xxvii.43 and 4.xxxii.43.

116 Cf. the like portrayal of Fortune in Cebetis Tabula (probably first Christian century), ch. 7 (ed. Praechter, p6), and Shakespeare, Henry V, 3.6.26 ff.; also Otto, s.v. "fortuna" 1, p142.

117 We do not know to which play this fragment (from a prologue, perhaps) is to be assigned. Ribbeck, 1.145, conjectures Chryses; Marx, and Warmington, 2.319, Dulorestes; L. A. Post, Hermiona. For the genitive form re (last verse) see p68, note a.

118 Cf. Cicero, De Inv. 1.l.95.

119 Very like the type of fallacy in 2.xxiii.36 above.

120 An Introduction similarly defective is called banal in 1.vii.11 above.

121 2.xxiii.36 above.

122 δίλημμα, διλήμματον. Complexio in Cicero, De Inv. 1.xxix.45, and in Servius on Virgil, Aen. 2.675. Cf. in Aristotle, Rhet. 2.23 (1399A), No. 14 of the 28 lines of argument from which to draw enthymemes, the topos of criss-cross consequences; Hermogenes, De Inv. 4.6 (ed. Rabe, pp192‑4); and also the figure Division, 4.xl.52 below.

123 Cf. Cicero, De Inv. 1.xlv.83; he uses an example which our author gives in 2.xxvi.42 to illustrate the vice of inconsistency.

124 The verses in this section have been referred either to a Greek school of rhetoric where exercises were set on the Cresphontes of Euripides or to Ennius' Cresphontes; see Marx, Proleg., p132, and Ribbeck, 1.33, but also Johannes Tolkiehn, Berl. philol. Wochenschr. 37 (1917), 828‑89, who believes that the first four verses belong to the Ennian play. Our author seems here to have forgotten what precisely constitutes Proof of the Reason; cf. his definition in 2.xviii.28 above, and the illustration in 2.xix.29.

In the event that the conditions here mirrored are Roman, the daughter must have remained in the potestas of her father if he divorced her from her husband without her consent. This, then, would be an early reference to marriage without manus.

125 Cf. Cicero, De Inv. 1.xliii.81.

126 Cf. Aristotle's examples of the infallible kind of sign in Rhet. 1.2 (1357B): "He is sick, for he has a fever," and "She has had a child, for she has milk"; also Anal. Pr. 2.27 (70A).

127 This is the "common" argument; cf. Cicero, De Inv. 1.xlviii.90, and Quintilian, 5.13.29. Faults such as those treated from here on are described briefly by Quintilian in 5.13.34 f.

128 From a comedy (?) by an unknown author; yet Ribbeck, 1.300‑1, suspects that the verse may belong to a dispute between Jason and Medea in Ennius' Medea.

129 Cf. 2.xvi.24 above.

130 Probably from the Thyestes of Ennius; see Vahlen, pp. ccx and 183. Thesprotus is perhaps interceding to reconcile the estranged brothers Atreus and Thyestes. But if the reading Chrespontem (E threspontem) is correct, the verses are from the Cresphontes of Ennius; see Ribbeck, 1.34. Cf. Cicero, De Inv. 1.xlix.91.

131 Cf. Cicero, De Inv. 1.xlviii.90.

132 Cf. Cicero, De Inv. 1.xlviii.90.

133 Assigned to the Medus of Pacuvius; Medea is speaking to Aeetes.

134 Cicero, De Inv. 1.xlvii.88, gives a different treatment of ambiguity.

135 Cf. Cicero, De Inv. 1.lxix.91. The "general definition" represents the same kind of fault as the last type of weak Reason in 2.xxiv.37 above.

136 See the definition of iniuria in 4.xxv.35 below.

137 The fallacy of Begging the Question.

138 Cf. Aristotle, Rhet. 2.24 (1401B), illustrating, among the sham enthymemes, the topos from a "sign": "Suppose that some one calls Dionysius a thief 'because he is a rogue.' There is, of course, no logical argument here; not every rogue is a thief, though every thief is a rogue."

139 Cf. the last fault considered in 2.xxv.39 above.

140 Perhaps from the Armorum Iudium of Accius (Warmington, 2.362) rather than from the play of the same name by Pacuvius (Marx, Proleg., p132); see Tolkiehn, Berl. Philol. Wochenschr. 37 (1917), 827‑8. Ajax speaks for the arms of Achilles which Agamemnon, on Athena's advice, later awarded to Ulysses.

141 The fragment is from a tragedy by an unknown author. The example was a favourite of the rhetoricians. Cf. Cicero, De Inv. 1.xlv.83, 1.l.93; Victorinus, in Halm, p253: C. Julius Victor, ch. 12, in Halm, p414.

142 Cf. Cicero, De Inv. 1.xlix.92, and De Oratore 2.75.304‑5.

143 Cf. Cicero, De Inv. 1.l.94.

144 The fallacy of Shifting Ground. Cf. Cicero, De Inv. 1.l.94.

145 The twins in the Antiopa (as in the Antiope of Euripides) engage in a famous debate: the practical Zethus, hostile to culture, finds fault with Amphion's love of music, and urges the virile active life of farming, cattle breeding, and war; the cultivated Amphion praises music and the life of contemplation. Amphion yields "to his brother's mood" so far as to still his lyre; see Hor. Epist. 1.18.43‑4. Cf. Cicero, De Inv. 1.l.94, De Oratore 2.37.155, De Re Publ. 1.18, and Callicles in Plato, Gorgias 485E ff. The separation of musical from philosophical studies represents a Roman point of view.

146 The argument is not ad rem but ad hominem; the fallacy of Ignoring the Question. Cf. Cicero, De Inv. 1.l.94.

147 Cf. Quintilian, 12.1.32: "Let us banish from our hearts the notion that eloquence, the fairest of all things, can combine with vicious character"; Philodemus, Rhet. 2.270, ed. Sudhaus: "But it is clear to all that many orators are very able, yet in character thoroughly depraved;" Plato, Gorgias 457A, and Ludwig Radermacher, Artium Scriptores, Sitzungsber. Österreich. Akad. (philos.-hist. Klasse) 227, 3 (Vienna, 1951), 45.

148 Cf. Cicero, De Inv. 1.l.94. Yet this procedure is not faulty when followed in the Statement of Facts; see De Inv. 1.xxi.30.

149 A deliberative problem; our author has in the first two books been emphasizing the judicial kind.

150 Cf. Cicero, De Inv. 1.l.94.

151 Most probably for her faithfulness to Rome in the Marsic War, in which she gallantly withstood a siege, Alba Fucens, a city of the Aequi on the borders of the Marsi in Central Italy, was rewarded with the status of municipium; Pinna (or Penna), at the foot of the Apennines, a chief city of the Vestini, was also faithful to Rome (although the other Vestini were in revolt) and endured a hard siege.

152 Cf. Horace, Ars Poet. 72: "Usage (ususconsuetudoσυνήθεια), in whose hands lie the decision (arbitrium), rights (ius), and standard (norma) of speaking"; Demetrius, De Elocut. 2.86: "Usage, which is our teacher always," and 2.87, in which he makes usage his "standard" (κανώνnorma).

153 In 90 B.C., after the outbreak of the Marsic War, the tribune L. Varius Hybrida introduced a law on treason directed against the senatorial leaders; it inquired into the actions of those who helped or advised the allies to take up arms against Rome. Sulpicius' law in 88 restored the exiles who had been condemned without a hearing either by the Varian Commission or by the court established under the Lex Plautia Iudiciaria of 90/89, but was itself later in the year repealed by Sulla. Why Sulpicius had earlier voted against a proposal to recall the exiles is not clear, for many of these belonged to his own party. The grounds for the veto were probably constitutional, and the new form of the proposal may have been intended to avoid constitutional objections that the decisions of the courts were being nullified; or perhaps popular opinion pressed him to change his mind. It was through the interdiction of fire and water, the symbol of the community, that the capital sentence was carried into effect. See Ernst Levy, Die röm. Kapitalstrafe, Sitzungsber. Heidelberg. Akad. (philos.-hist. Klasse) 21, 5 (1930‑31), 14 ff.

154 The author here seems to betray bias in favour of the Popular party; but see the Introduction to the present volume, pp. xxiii f.

155 Cf. Cicero, De Inv. 1.lxiv.82.

156 Aristotle, Rhet. 2.25 (1403A). Quintilian, 5.13.24, Anon. Seg. 187 (Spengel-Hammer 1[2].385), and Apsines, Ars Rhet. 9 (Spengel-Hammer 1[2].283‑5) treat the invalidation of examples (λύσεις παραδειγμάτων).

157 Cf. Cicero, De Inv. 1.xliv.82.

158 Cf. Cicero, De Inv. 1.xlix.92.

159 Two functions are differentiated, the logical and emotional; see 2.xxx.47 ff. below. Cf. Cicero, De Inv. 1.xlix.92; in Aristotle, Rhet. 2.24 (1401B), the topos (among the sham enthymemes) of indignation (δείνωσις) — the speaker amplifies the deed without having proved his case.

160 Cf. Cicero, De Inv. 1.xxxvii.67.

161 ἐπίλογοι. The Isocratic theory of the Conclusion was also tripartite; to Theodectes (whose rhetorical system was based on the parts of the discourse) its functions are to stir the emotions, especially anger and pity, to praise or blame, and to recall what has been said. See Hugo Rabe, Proleg. Syll., Leipzig, 1931, pp32 and 216; Anon. Seg. 208‑9, in Spengel-Hammer 1(2).389; Friedrich Solmsen in Hermes 67 (1932). The Rhet. ad Alex., ch. 36 (1444B‑1445A), discusses the part played in Conclusions by the Summary and Conciliation of the Audience (including the Appeal to Pity), together with Discrediting the Opponent. To Aristotle, Rhet. 3.19 (1419B), the Conclusion has four functions: to conciliate the audience and discredit the opponent, to modify and depreciate, to excite the emotions required by the case, and to review what has been said. Cicero, De Inv. 1.lii.98, divides conclusio into Summing Up, Invective (indignatio, δείνωσις), and Appeal to Pity (conquestio); in Part. Orat. 15.52 ff. the peroratio is restricted (doubtless because the work is in the form of an isagogic dialogue) to two divisions, Amplification and Summing Up, Invective and Appeal to Pity being subordinate to Amplification. Anon. Seg. 203 (Spengel-Hammer 1[2].454) considers the Conclusion as dealing with either facts (τὸ πρακτικόν) or emotions (τὸ παθητικόν), placing the Summary in the former class; so also Quintilian, 6.1.1.

162 ἀνάμνησις, ἀνακεφαλαίωσις. In Rhet. ad Alex., ch. 20 (1433B), παλιλλογία. Cf. Rhet. ad Alex., l.c.: "When Summing Up we shall recapitulate either in the form of a division or a recommendation of policy or of a question or of an enumeration;" Cicero, Part. Orat. 17.59: "there are two occasions for the Summing Up — if you mistrust the memory of those before whom you are pleading whether on account of the length of time elapsed [since the events you have been discussing took place] or on account of the length of your speech, or if, by repeatedly presenting arguments that strengthen your speech and setting these forth briefly, your case will have more force; Quintilian, 6.1.1: "The Summing Up . . . both refreshes the memory of the iudex and at the same time places the whole case before his eyes." Cf. the enumeratio of 1.x.17 above, and complexio, the Résumé of an argument 2.xviii.28 above.

163 See note on 4.vii.10 below.

164 The purpose of Amplification is δείνωσις (indignatio in 4.xv.22 and 4.xxxix.51, iracundia in 3.xiii.24). Note that the loci communes (see note on 2.vi.9 above) are here attached to Amplification (αὔξησις), which, in turn, is a subhead under the Conclusion. The theory of Amplification was first formed for epideictic; Gorgias, Tisias (Plato, Phaedrus 267A), and Isocrates gave it prominence. Cf. Cicero, Part. Orat. 15.52: "The right place for Amplification is in the Peroration; but also in the course of the speech there are opportunities to digress for the sake of amplification, when some point has been proved or refuted. Amplification is, then, a more impressive affirmation, so to speak, which by moving the mind winds belief in speaking;" 8.27: "Although Amplification has its own proper place, often in the opening of a speech, and almost always at the end, yet it is to be used also in other parts of the discourse, especially when a point has been proved or refuted." Cicero, De Inv. 1.liii.100‑liv.105, gives five additional loci for invective; his No. 12 is like our author's No. 8. There are correspondences between our author's commonplaces and those listed in Aristotle, Rhet. 1.14 (1374B‑1375A); cf.e.g., μόνος ἢ πρῶτος (our author's No. 8), τὸ θηριωδέστερον ἀδίκημα (No. 7), ἐκ προνοίας (No. 6), ἴασις (No. 5); on correspondences with those in the Rhet. ad Alex. see Claus Peters, pp100‑101. Peters, and Octave Navarre, Essai sur la Rhétorique Grecque avant Aristote, Paris, 1900, pp304 ff., illustrate the use made of several of these commonplaces by Greek orators. See Walter Plöbst, Die Auxesis, diss. Munich, 1911.

165a 165b Cf. Cicero, De Inv. 1.liii.101.

166 Cf. 3.vi.10 below.

167 Cf. Cicero, De Inv. 1.liii.101 and 2.xxxii.100; the locus qui efficitur ex causis in Top. 18.67.

168 Cf. Cicero, De Inv. 1.liii.102; Rhet. ad Alex., ch. 4 (1427A).

169a 169b 169c Cf. Cicero, De Inv. 1.liii.102.

170 Cf. Cicero, De Inv. 1.liv.103.

171 ἄντιπαραβολή. See the example of the grand style, 4.viii.12 below, for a use of this commonplace. Cf. Quintilian, 6.2.21: "For some things are heinous in themselves, such as parricide, murder, poisoning, but other things have to be made to seem heinous;" and Cicero, De Inv. 1.liv.104.

172 ἐκτύπωσις. Cf. the figures descriptio, 4.xxxix.51, and demonstratio, 4.lv.68 below; Cicero, De Inv. 1.liv.104.

173 ἔλεος, οἶκτος. Cicero's treatment in De Inv. 1.lv.106‑lvi.109 is fuller, listing sixteen loci of conquestio. Karl Aulitzky, Wiener Studien 39 (1917), 26‑49, believes that Cicero and our author here use a common Roman source which may derive from Apollonius ὁ μαλακός. That the Appeal to Pity belongs in the Conclusion of a forensic speech is a concept of pre-Aristotelian rhetoric; cf. Rhet. ad Alex., ch. 36 (1445A).

174 Cf. Cicero, Part. Orat. 17.57: "For nothing is so pitiable as a man who has become pitiable after having been happy." Aristotle, Poetics, ch. 13 (1452B‑1453).

175 So also Rhet. ad Alex., ch. 36 (1445A), and Quintilian, 6.1.19.

176 Quintilian, 6.1.18, offers similar advice to the accuser who is exciting pity for the man he is seeking to avenge.

177 The proverb is attributed by Cicero, in De Inv. 1.lvi.109, to Apollonius the rhetorician, who is perhaps to be identified with Apollonius ὁ μαλακός (born c. 160 B.C.) rather than with Apollonius Molon, Cicero's teacher. Both ὁ μαλακός and Molon (later) taught at Rhodes. For a study of the proverb see G. D. Kellogg, Amer. Journ. Philol. 28 (1907), 301‑10.


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