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

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,
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Book II

Rhetorica ad Herennium

 p3  Book I

1 1 My private affairs keep me so busy that I can hardly find enough leisure to devote to studies, and the little that is vouchsafed to me I have usually preferred to spend on philosophy. Yet your desire, Gaius Herennius, has spurred me to compose a work on the Theory of Public Speaking, lest you should suppose that in a matter which concerns you I either lacked the will or shirked the labour. And I have undertaken this project the more gladly because I knew that you had good grounds in wishing to learn rhetoric, for it is true that copiousness and facility in expression bear abundant fruit, if controlled by proper knowledge and a strict discipline of the mind.

That is why I have omitted to treat those topics which, for the sake of futile self-assertion, Greek writers​1 have adopted. For they, from fear of appearing to know too little, have gone in quest of notions irrelevant to the art, in order that the art might seem more difficult to understand. I, on the other hand, have treated those topics which seemed  p5 pertinent to the theory of public speaking. I have not been moved by hope of gain​2 or desire for glory, as the rest have been, in undertaking to write, but have done so in order that, by my painstaking work, I may gratify your wish. To avoid prolixity, I shall now begin my discussion of the subject, as soon as I have given you this one injunction: Theory without continuous practice in speaking is of little avail; from this you may understand that the precepts of theory offered ought to be applied in practice.

2 2 The task of the public speaker is to discuss capably those matters which law and custom have fixed for the uses of citizen­ship, and to secure as far as possible the agreement of his hearers.​3 There are three kinds​4 of causes which the speaker must treat: Epideictic, Deliberative, and Judicial.​5 The epideictic kind is devoted to the praise or censure of some particular person. The deliberative consists in the discussion of policy and embraces persuasion and dissuasion.​6 The judicial is based on legal controversy, and comprises criminal prosecution or civil suit, and defence.7

Now I shall explain what faculties the speaker should possess, and then show the proper means of treating these causes.8

 p7  3 The speaker, then, should possess the faculties of Invention, Arrangement, Style, Memory, and Delivery.​9 Invention is the devising of matter, true or plausible, that would make the case convincing.​10 Arrangement is the ordering and distribution of the matter, making clear the place to which each thing is to be assigned. Style is the adaptation of suitable words and sentences to the matter devised. Memory is the firm retention in the mind of the matter, words, and arrangement. Delivery is the graceful regulation of voice, countenance, and gesture.

All these faculties we can acquire by three means: Theory, Imitation, and Practice.​11 By theory is meant  p9 a set of rules that provide a definite method and system of speaking. Imitation stimulates us to attain, in accordance with a studied method, the effectiveness of certain models in speaking. Practice is assiduous exercise and experience in speaking.

Since, then, I have shown what causes the speaker should treat and what kinds of competence he should possess, it seems that I now need to indicate how the speech can be adapted to the theory of the speaker's function.

3 4 Invention is used for the six parts of a discourse: the Introduction, Statement of Facts, Division, Proof, Refutation, and Conclusion.​12 The Introduction is the beginning of the discourse, and by it the hearer's mind is prepared​13 for attention. The Narration or Statement of Facts sets forth the events that have occurred or might have occurred.​14 By means of the Division we make clear what matters are agreed upon and what are contested, and announce what points we intend to take up. Proof is the presentation of our arguments, together with their corroboration.​15 Refutation is the destruction  p11 of our adversaries' arguments.​16 The Conclusion is the end of the discourse, formed in accordance with the principles of the art.

Along with the speaker's functions, in order to make the subject easier to understand, I have been led also to discuss the parts of a discourse, and to adapt these to the theory of Invention. It seems, then, that I must at this juncture first discuss the Introduction.17

5 Given the cause, in order to be able to make a more appropriate Introduction, we must consider what kind of cause it is. The kinds of causes are four: honourable, discreditable, doubtful, and petty.​18 A cause is regarded as of the honourable kind when we either defend what seems to deserve defence by all men, or attack what all men seem in duty bound of the attack; for example, when we defend a hero, or prosecute a parricide. A cause is understood to be of the discreditable kind when something honourable is under attack or when something discreditable is being defended. A cause is of the doubtful kind when it is partly honourable and partly discreditable. A cause is of the petty kind when the matter brought up is considered unimportant.

4 6 In view of these considerations, it will be in point to apply the theory of Introductions to the kind of cause. There are two kinds of Introduction: the Direct Opening, in Greek called the Proimion,19  p13 and the Subtle Approach, called the Ephodos.​20 The Direct Opening straightway prepares the hearer to attend to our speech. Its purpose is to enable us to have hearers who are attentive, receptive, and well-disposed.​21 If our cause is of the doubtful kind, we shall build the Direct Opening upon goodwill, so that the discreditable part of the cause cannot be prejudicial to us. If our cause is of the petty kind, we shall make our hearers attentive. If our cause is of the discreditable kind, unless we have hit upon a means of capturing goodwill by attacking our adversaries, we must use the Subtle Approach, which I shall discuss later.​22 And finally, if our cause is of the honourable kind, it will be correct either to use the Direct Opening or not to use it.​23 If we wish to use it, we must show why the cause is honourable, or else briefly discuss what matters we are going to discuss. But if we do not wish to use the Direct Opening, we must begin our speech with a law, a written document, or some argument supporting our cause.

7 Since, then, we wish to have our hearer receptive, well-disposed, and attentive, I shall disclose how each state can be brought about. We can have receptive hearers if we briefly summarise the cause and make  p15 them attentive; for the receptive hearer is one who is willing to listen attentively. We shall have attentive hearers by promising to discuss important, new, and unusual matters, or such as appertain to the commonwealth, or to the hearers themselves, or to the worship of the immortal gods; by bidding them listen attentively; and by enumerating the points we are going to discuss. 8 We can by four methods make our hearers well-disposed: by discussing our own person, the person of our adversaries, that of our hearers, and the facts themselves.24

5 From the discussion of our own person we shall secure goodwill by praising our services without arrogance and revealing also our past conduct toward the republic, or toward our parents, friends, or the audience, and by making some reference to . . . provided that all such references are pertinent to the matter in question; likewise by setting forth our disabilities, need, loneliness, and misfortune,​25 and pleading for our hearers' aid, and at the same time showing that we have been unwilling to place our hope in anyone else.

From the discussion of the person of our adversaries we shall secure goodwill by bringing them into hatred, unpopularity, or contempt.​26 We shall force hatred upon them by adducing some base, high-handed, treacherous, cruel, impudent, malicious, or  p17 shameful act of theirs. We shall make our adversaries unpopular by setting forth their violent behaviour, their dominance, factiousness, wealth, lack of self-restraint, high birth, clients, hospitality, club allegiance, or marriage alliances, and by making clear that they rely more upon these supports than upon the truth. We shall bring our adversaries into contempt by presenting their idleness, cowardice, sloth, and luxurious habits.

From the discussion of the person of our hearers goodwill is secured if we set forth the courage, wisdom, humanity, and nobility of past judgements they have rendered, and if we reveal what esteem they enjoy and with what interest their decision is awaited.

From the discussion of the facts themselves we shall render the hearer well-disposed by extolling our own cause with praise and by contemptuously disparaging that of our adversaries.

6 9 Now I must explain the Subtle Approach.​27 There are three occasions on which we cannot use the Direct Opening, and these we must consider carefully: (1) when our cause is discreditable, that is, when the subject itself alienates the hearer from us; (2) when the hearer has apparently been won over by the previous speakers of the opposition; (3) or when the hearer has become wearied by listening to the previous speakers.

If the cause has a discreditable character,​28 we can make our Introduction with the following points: that the agent, not the action, ought to be considered; that we ourselves are displeased with the acts which our opponents say have been committed, and that  p19 these are unworthy, yes, heinous. Next, when we have for a time enlarged upon this idea, we shall show that nothing of the kind has been committed by us. Or we shall set forth the judgement rendered by others in an analogous case, whether that cause be of equal, or less, or greater importance; then we shall gradually approach our own cause and establish the analogy. The same result is achieved if we deny an intention to discuss our opponents or some extraneous matter and yet, by subtly inserting the words,​29 do so.

10 If the hearers have been convinced,​30 if our opponent's speech has gained their credence — and this will not be hard for us to know, since we are well aware of the means by which belief is ordinarily effected — if, then, we think belief has been effected, we shall make our Subtle Approach to the cause by the following means: the point which our adversaries have regarded as their strongest support we shall promise to discuss first; we shall begin with a statement made by the opponent, and particularly with that which he has made last; and we shall use Indecision,​31 along with an exclamation of astonishment: "What had I best say?" or "To what point shall I first reply?"

If the hearers have been fatigued by listening, we shall open with something that may provoke laughter​32 — a fable, a plausible fiction, a caricature, an ironical inversion on the meaning of a word, an ambiguity, innuendo, banter, a naïvety, an exaggeration,  p21 a recapitulation,​33 a pun, an unexpected turn,​34 a comparison, a novel tale, a historical anecdote, a verse, or a challenge or a smile of approbation directed at some one. Or we shall promise to speak otherwise than as we have prepared, and not to talk as others usually do; we shall briefly explain what the other speakers do and what we intend to do.

7 11 Between the Subtle Approach and the Direct Opening there is the following difference. The Direct Opening should be such that by the straightforward methods I have prescribed we immediately make the hearer well-disposed or attentive or receptive; whereas the Subtle Approach should be such that we effect all these results covertly, through dissimulation,​35 and so can arrive at the same vantage-point in the task of speaking. But though this three-fold advantage — that the hearers constantly show themselves attentive, receptive, and well-disposed to us — is to be secured throughout the discourse, it must in the main be won by the Introduction to the cause.

Now, for fear that we may at some time use a faulty Introduction, I shall show what faults must be avoided. In the Introduction of a cause we must make sure that our style is temperate and that the words are in current use,​36 so that the discourse seems unprepared. An Introduction is faulty if it can be applied as well to a number of causes;​37 that is called a banal Introduction. Again, an Introduction which the adversary can use no less well is faulty, and that  p23 is called a common Introduction. That Introduction, again, is faulty which the opponent can turn to his own use against you. And again that is faulty which has been composed in too laboured a style, or is too long; and that which does not appear to have grown out of the cause itself in such a way as to have an intimate connection with the Statement of Facts; and, finally, that which fails to make the hearer well-disposed or receptive or attentive.

8 Concerning the Introduction I have said enough; next let me turn to the Narration or Statement of Facts. 12 There are three types of Statement of Facts.​38 It is one type when we set forth the facts and turn every detail to our advantage so as to win the victory, and this kind appertains to the causes on which a decision is to be rendered.​39 There is a second type which often enters into a speech as a means of winning belief or incriminating our adversary​40 or effecting a transition or setting the stage for something.​41 The third type​42 is not used in a cause actually pleaded in court, yet affords us convenient practice​43 for handling the first two types more advantageously in actual cases. 13 Of such narratives there are two kinds: one based on the facts, the other on the persons.44

The kind of narrative based on the exposition of the facts presents three forms: legendary, historical, and realistic. The legendary tale comprises events neither true nor probable, like those transmitted by  p25 tragedies.​45 The historical narrative is an account of exploits actually performed, but removed in time from the recollection of our age.​46 Realistic narrative recounts imaginary events, which yet could have occurred, like the plots of comedies.47

A narrative based on the persons should present a lively style and diverse traits of character,​48 such as austerity and gentleness, hope and fear, distrust and desire, hypocrisy and compassion, and the vicissitudes of life, such as reversal of fortune,​49 unexpected disaster, sudden joy, and a happy outcome. But it is in practice exercises that these types will be worked out.​50 How we should handle that type of Statement of Facts which belongs in actual causes I am about to explain.

9 14 A Statement of Facts should have three qualities: brevity, clarity, and plausibility.​51 Since we know that these qualities are essential, we must learn how to achieve them.

We shall be able to make the Statement of Facts brief if we begin it at the place at which we need to begin; if we do not try to recount from the remotest beginning; if our Statement of Facts is summary and  p27 not detailed;​52 if we carry it forward, not to the furthermost point, but to the point to which we need to go; if we use no digressions and do not wander from the account we have undertaken to set forth; and if we present the outcome in such a way that the facts that have preceded can also be known, although we have not spoken of them. For example, if I should say that I have returned from the province, it would also be understood that I had gone to the province.​53 And in general it is better to pass by not only that which weakens the cause but also that which neither weakens nor helps it. Furthermore, we must guard against repeating immediately what we have said already, as in the following: "Simo came from Athens to Megara in the evening; when he came to Megara, he laid a trap for the maiden: after laying the trap he ravished her then and there."54

15 Our Statement of Facts will be clear​55 if we set forth the facts in the precise order in which they occurred, observing their actual or probable sequence and chronology. Here we must see that our language is not confused,​56 involved, or unfamiliar, that we do not shift to another subject, that we do not trace the affair back to its remotest beginning, nor carry it too far forward, and that we do not omit anything pertinent. And our Statement of Facts will be clear if we follow the precepts on brevity that I have laid down,​57 for the shorter the Statement of Facts, the clearer will it be and the easier to follow.

 p29  16 Our Statement of Facts will have plausibility​58 if it answer the requirements of the usual, the expected, and the natural; if account is strictly kept of the length of time, the standing of the persons involved, the motives in the planning, and the advantages offered by the scene of action, so as to obviate the argument in refutation that the time was too short, or that there was no motive, or that the place was unsuitable, or that the persons themselves could not have acted or been treated so. If the matter is true, all these precautions must none the less be observed in the Statement of Facts, for often the truth cannot gain credence otherwise. And if the matter is fictitious, these measures will have to be observed all the more scrupulously. Fabrication must be circumspect in those matters in which official documents or some person's unimpeachable guaranty will prove to have played a rôle.

In what I have thus far said I believe that I agree with the other writers on the art of rhetoric except for the innovations I have devised on Introductions by the Subtle Approach. I alone,​59 in contrast with the rest, have distinguished three occasions for the Subtle Approach, so as to provide us with a thoroughly sure method and a lucid theory of Introductions. 10 Now as to the rest, since I must discuss the finding of arguments, a matter that makes unique demands upon the art of the speaker, I shall endeavour to exhibit an industry in research such as the importance of the subject demands — as soon as I have prefixed a few remarks on the Division of the cause.

 p31  17 The Division​60 of the cause falls into two parts. When The Statement of Facts has been brought to an end, we ought first to make clear what we and our opponents agree upon, if there is agreement on the points useful to us,​61 and what remains contested, as follows: "Orestes killed his mother;​62 on that I agree with my opponents. But did he have the right to commit the deed, and was he justified in committing it? That is in dispute." Likewise in reply: "They admit that Agamemnon was killed by Clytemnestra; yet despite this they say that I ought not to have avenged my father."

Then, when we have done this, we should use the Distribution.​63 The Distribution has two parts: the Enumeration​64 and the Exposition.​65 We shall be using the Enumeration when we tell by number how many points we are going to discuss. The number ought not to exceed three; for otherwise, besides the danger that we may at some time include in the speech more or fewer points than we enumerated,​66 it instils in the hearer the suspicion of premeditation and artifice,​67 and this robs the speech of conviction. The Exposition consists in setting forth, briefly and completely, the points we intend to discuss.

 p33  18 Now let me pass to Proof​68 and Refutation.​69 The entire hope of victory and entire method of persuasion rest on proof and refutation, for when we have submitted our arguments and destroyed those of the opposition, we have, of course, completely fulfilled the speaker's function. 11 We shall, then, be enabled to do both if we know the Type of Issue​70 which the cause presents. Others make these Types of Issue four.​71 My teacher​72 thought that there were three, and intending thereby to subtract any of the types they had discovered, but to demonstrate that one type which they should have taught as single and uncompounded they had divided into with distinct and separate types. The Issue is determined by the joining of the primary plea of the defence with the charge of the plaintiff. The Types of Issue  p35 are then, as I have said above, three: Conjectural, Legal, and Juridical.73

The Issue is Conjectural​74 when the controversy concerns a question of fact, as follows: In the forest Ajax, after realizing what in his madness he had done, fell on his sword. Ulysses appears, perceives that Ajax is dead, draws the bloody weapon from corpse. Teucer appears, sees his brother dead, and his brother's enemy with bloody sword in hand. He accuses Ulysses of a capital crime. Here the truth is sought by conjecture. The controversy will concern the fact.​75 And that is why the Issue in the cause is called Conjectural.

19 The Issue is Legal​76 when some controversy turns upon the letter of a text or arises from an implication therein. A Legal Issue is divided into six subtypes: Letter and Spirit,​77 Conflicting Laws,​78 Ambiguity,​79 Definition,​80 Transference,​81 and Reasoning from Analogy.82

A controversy from Letter and Spirit arises when the framer's intention appears to be at variance with the letter of the text, as follows: Suppose a law which decrees that whoever have abandoned their ship in a storm shall lose all rights of title, and that their ship, if saved, and cargo as well, belong to those who have remained on board. Terrified by the storm's violence, all deserted the ship and took to the  p37 boat — all except one sick man who, on account of his illness, could not leave the ship and escape. By sheer chance the ship was driven safely to harbour. The invalid has come into possession of the ship, and the former owner claims it.​83 Here is a Legal Issue based on Letter and Spirit.84

20 Controversy results from Conflicting Laws when one law orders or permits a deed while another forbids it, as follows: A law forbids one who has been convicted of extortion to speak before the Assembly.​85 Another law commands the augur to designate in the Assembly the candidate for the place of a deceased augur.​86 A certain augur convicted of extortion has designated the candidate for the place of a deceased augur. A penalty is demanded of him.​87 Here is a Legal Issue established from Conflicting Laws.

12 A controversy is created by Ambiguity when a text presents two or more meanings, as follows: The father of a family, when making his son his heir, in his will bequeathed silver vessels to his wife: "Let my heir give my wife thirty pounds' weight of silver vessels, 'such as shall be selected'." After his death the widow asks for some precious vessels of magnificent relief-work. The son contends that he owes her thirty pounds' weight of vessels "such as shall be selected" by him.​88 Here is a Legal Issue established from Ambiguity.

 p39  21 A cause rests on Definition when the name by which an act should be called is in controversy. The following is an example: When Lucius Saturninus was about to introduce the grain law concerning the five-sixths as, Quintus Caepio, who was city quaestor during that time, explained to the Senate that the treasury could not endure so great a largess. The Senate decreed that if Saturninus should propose that law before the people he would appear to be doing so against the common weal. Saturninus proceeded with his motion. His colleagues interposed a veto; nevertheless he brought the lot-urn down for the vote. Caepio, when he sees Saturninus presenting his motion against the public welfare despite his colleagues' veto, attacks him with the assistance of some Conservatives, destroys the bridges,​89 throws down the ballot boxes, and blocks further action on the motion. Caepio is brought to trial for treason.​90 The Issue is Legal, and is established from Definition, for we are defining the actual term when we investigate what constitute treason.91

22 A controversy is based on Transference when the defendant maintains that there must be a postponement of time or a change of plaintiff or judges.​92 This  p41 subtype of Issue the Greeks use in the proceedings before judges, we generally before the magistrate's tribunal.​93 We do, however, make some use of it in judicial proceedings. For example, if some one is accused of embezzlement, alleged to have removed silver vessels belonging to the state from a private place, he can say, when he has defined theft and embezzlement, that in his case the action ought to be one for theft and not embezzlement.​94 This subtype of Legal Issue rarely​95 presents itself in judicial proceedings for the following reasons: in a private action there are counterpleas accepted by the praetor,​96 and the plaintiff's fails unless he has had a cause of action; in public investigations the laws provide that, if it suits the defendant, a decision is first passed on whether the plaintiff is, or is not, permitted to make the charge.

13 23 The controversy is based on Analogy when a matter that arises for adjudication lacks a specifically applicable law, but an analogy is sought from other existing laws on the basis of a certain similarity to the matter in question. For example, a law reads: "If a man is raving mad, authority over his person and property shall belong to his agnates, or to the members of his gens."​97 Another law reads: "He who has been convicted of murdering his parent shall  p43 be completely wrapped and bound in a leather sack and thrown into a running stream."​98 Another law: "As the head of a family has directed regarding his household or his property, so shall the law hold good."​99 Another law: "If the head of a family dies intestate, his household and property shall belong to his agnates, or to the members of his gens."​100 Malleolus was convicted of matricide. Immediately after he had received sentence, his head was wrapped in a bag of wolf's hide, the "wooden shoes"​101 were put upon his feet, and he was led away to prison. His defenders bring tablets into the jail, write his will in his presence, witnesses duly attending. The penalty is exacted of him. His testamentary heirs enter upon their inheritance. Malleolus' younger brother, who had been one of the accusers in his trial, claims his inheritance by the law of agnation. Here no one specific law is adduced, and yet many laws are adduced, which for the basis for a reasoning by analogy to prove that Malleolus had or had not the right to make a will. It is a Legal Issue established from Analogy.

I have explained the types of Legal Issue. Now let me discuss the Juridical Issue.

14 24 An Issue is Juridical​102 when there is agreement on the act, but the right or wrong of the act is in question. Of this Issue there are two subtypes, one called Absolute,​103 the other Assumptive.104

 p45  It is an Absolute Issue when we contend that the act in and of itself, without our drawing on any extraneous considerations, was right. For example, a certain mime abused the poet Accius by name on the stage. Accius sues him on the ground of injuries. The player makes no defence except to maintain that it was permissible to name a person under whose name dramatic works were given to be performed on the stage.105

The Issue is Assumptive when the defence, in itself insufficient, is established by drawing on extraneous matter. The Assumptive subtypes are four: Acknowledgement of the Charge,​106 Rejection of the Responsibility,​107 Shifting of the Question of Guilt,​108 Comparison with the Alternative Course.109

The Acknowledgement​110 is the defendant's plea for pardon. The Acknowledgement includes the Exculpation​111 and the Plea for Mercy.​112 The Exculpation is the defendant's denial that he acted with intent.​113 Under Plea of Exculpation are three subheads: Ignorance,​114 Accident,​115 and Necessity;​116 accident, as in the case of Caepio​117 before the tribunes of the plebs on the loss of his army; ignorance, as in the case of the man who, before opening the tablets of the will by the terms of which his brother's slave had been  p47 manumitted, exacted punishment of the slave for having slain his master;​118 necessity, as in the case of the soldier who overstayed his leave because the floods had blocked the roads.​119 It is a Plea for Mercy when the defendant confesses the crime and premeditation, yet begs for compassion.​120 In the courts this is rarely practicable,​121 except when we speak in defence of one whose good deeds are numerous and notable; for example, interposing as a commonplace in amplification: "Even if he had done this, it would still be appropriate to pardon him in view of his past services; but he does not at all beg for pardon." Such a cause, then, is not admissible in the courts, but is admissible before the Senate, or a general, or a council.122

15 25 A cause rests on the Shifting of the Question of Guilt when we do not deny our act but plead that we were driven to it by the crimes of others, as in the case of Orestes when he defended himself by diverting the issue of guilt from himself to his mother.123

A cause rests on the Rejection of the Responsibility when we repudiate, not the act charged, but the responsibility, and either transfer it to another person or attribute it to some circumstance. An example of the transference of responsibility to another person: if an accusation should be brought against the confessed slayer of Publius Sulpicius, and he should defend his act by invoking an order of the consuls, declaring that they not only commanded the  p49 act but also gave reason why it was lawful.​124 An example of attribution to a circumstance: if a person should be forbidden by a plebiscite to do what a will has directed him to do.

A cause rests on Comparison with the Alternative Course when we declare that it was necessary for us to do one or the other of the two things, and that the one we did was the better. This cause is of the following sort: Gaius Popilius, hemmed in by the Gauls, and quite unable to escape, entered into a parley with the enemy's chiefs. He came away with consent to lead his army out on condition that he abandon his baggage. He considered it better to lose his baggage than his army. He led out his army and left the baggage behind. He is charged with treason.125

16 I believe that I have made clear what the Types of Issue are and what are their subdivisions. Now I must illustrate the proper ways and means of treating these, first indicating what both sides in a cause ought to fix upon as the point to which the complete economy of the entire speech should be directed.

 p51  26 Immediately upon finding the Type of Issue, then, we must seek the Justifying Motive.​126 It is this which determines the action and comprises the defence. Thus Orestes (for the sake of clarity, to adhere to this particular action) confesses that he slew his mother. Unless he had advanced a Justifying Motive for the act, he will have ruined his defence. He therefore advances one; were it not interposed, there would not even be an action. "For she," says he, "had slain my father."​127 Thus, as I have shown, the Justifying Motive is what comprises the defence; without it not even the slightest doubt could exist which would delay his condemnation.

Upon finding the Motive advanced in Justification we must seek the Central Point​128 of the Accusation, that is, that which comprises the accusation and is presented in opposition to the Justifying Motive of the defence which I have discussed above. This will be established as follows: When Orestes has used the Justifying Motive: "I had the right to kill my mother, for she had slain my father," the prosecutor will use his Central Point: "Yes, but not by your hand ought she to have been killed or punished without a trial."129

From the Justifying Motive of the defence and the Central Point of the Accusation must arise the Question for Decision, which we call the Point to  p53 Adjudicate and the Greeks the krinomenon. That will be established from the meeting of the prosecutor's Central Point and the defendant's Justifying Motive, as follows: When Orestes says that he killed his mother to avenge his father, was it right for Clytemnestra to be slain by her son without a trial? This, then, is the proper method of finding the Point to Adjudicate. Once the Point to Adjudicate is found, the complete economy of the entire speech ought to be directed to it.

17 27 The Points to Adjudicate will be found in this way in all Types of Issue and their subdivisions, except the conjectural.​130 Here the Justifying Motive for the act is not in question, for the act is denied, near is the Central Point of the Accusation sought, for no Justifying Motive has been advanced. Therefore the Point to Adjudicate is established from the Accusation​131 and the Denial,​132 as follows: Accusation: "You killed Ajax." Denial: "I did not." The Point to Adjudicate: Did he kill him? The complete economy of both speeches must, as I have said above, be directed to this Point to Adjudicate. If there are several Types of Issue or their subdivisions in one cause, there will also be several Points to Adjudicate, but all these, too, will be determined by a like method.

I have taken great pains to discuss briefly and clearly the matters that have had to be treated up to this point. Now, since this Book has grown to sufficient length, it will be more convenient in turn to expound other matters in a second Book, so that the great amount of material may not tire you and slacken your attention. If I dispatch these matters too slowly for your eagerness, you will have to  p55 attribute that to the magnitude of the subject and also to the demands of my other occupations. Yet I shall make speed, and compensate by diligence for the time taken up by my affairs, to the end that, by this gift, in token of your courtesy towards me and my own interest in you, I may grant your desire in most bounti­ful measure.

The Loeb Editor's Notes:

1 The beginning of Book 4 further sets forth the author's attitude to the Greek writers on rhetoric (who these are specifically is uncertain); cf. also 3.xxiii.38. For his attitude to philosophical studies see the end of Book 4.

2 Apparently text-books on public speaking sold well; see Theodore Birt, Rhein. Mus. 72 (1917/18), 311‑16.

3 The definition is that of Hermagoras, to whom the function (ἔργον) of the perfect orator is τὸ τεθὲν πολιτικὸν ζήτημα διατίθεσθαι κατὰ τὸ ἐνδεχόμενον πειστικῶς. See Sextus Empiricus, Adv. Rhet. 62, ed. Fabricius, 2.150. Cf. Cicero, De Inv. 1.v.6.

4 γένη.

5 ἐπιδεικτικόν, συμβουλευτικόν, δικανικόν. The scheme is Aristotelian (Rhet. 1.3, 1358B) but in essence older. The author's emphasis in the first two books, on the judicial kind, is characteristically Hellenistic (e.g., Hermagorean). The better tradition indicates that originally rhetoric was concerned with the judicial kind, and was later extended to the other two fields. For a study of the three genera see D. A. G. Hinks, Class. Quarterly 30 (1936), 170‑6. Cf. Cicero, De Inv. 1.v.7.

6 προτροπή and ἀποτροπή.

7 κατηγορία, δίκη, ἀπολογία.

8 2.ii.2 below.

9 εὕρεσις, τάξις or οἰκονομία, λέξις or ἑρημνεία or φράσις, μνήμη, ὑπόκρισις. The pre-Aristotelian rhetoric, represented by the Rhet. ad Alexandrum, treated the first three (without classifying them); Aristotle would add Delivery (Rhet. 3.1, 1403B), and his pupil Theophrastus did so (see note on 3.xi.19 below). When precisely in the Hellenistic period Memory was added as a fifth division by the Rhodian or the Pergamene school, we do not know. These faculties (res; see also 1.ii.3) are referred to in 2.i.1 below (cf. 1.iii.4) as the speaker's functions (officiaἔργα τοῦ ῥήτορος). Quintilian, 3.3.11 ff., considers them as departments or constituent elements of the art (partes rhetorices) rather than as opera (= officia); so also here at 3.i.1, 3.viii.15, 3.xvi.28, and Cicero, De Inv. 1.vii.9. ἔργον is an Aristotelian concept (cf. the definition of rhetoric in Rhet. 1.1‑2, 1355B), and Aristotle was the first to classify the (major) functions. Our author here gives the usual order of the divisions; so also Cicero, De Oratore 1.31.142. Diogenes Laertius, 7.43, presents the Stoic scheme: Invention, Style (φράσις), Arrangement, and Delivery. A goodly number of rhetorical systems were actually based on these ἔργα (e.g., in most part Cicero's and Quintilian's); others were based on the divisions of the discourse (μόρια λόγου). See K. Barwick, Hermes 57 (1922), 1 ff.; Friedrich Solmsen, Amer. Journ. Philol. 62 (1941), 35‑50, 169‑90. Our author conflates the two schemes he has inherited; see especially 1.ii.3‑iii.4 , 2.i.1‑ii.2, and the Introduction to the present volume, p. xviii.

10 The concept goes back at least as far as Plato (e.g.Phaedrus 236A); see Aristotle, Rhet. 1.2 (1355B), on finding artistic proofs.

11 τέχνη (also παιδεία, ἐπιστήμη, μάθησις, scientia, doctrina), μίμησις, γυμνασία (also ἄσκησις, μελέτη, ἐμπειρία, συνήθεία, declamatio). The usual triad, Nature (φύσις, natura, ingenium, facultas), Theory and Practice, can be traced back to Protagoras, Plato (Phaedrus 269D), and Isocrates (e.g.Antid. 187; Adv. Soph. 14‑18, where Imitation is also included). Cf. also Aristotle in Diogenes Laertius 5.18; Cicero, De Inv. 1.i.2, De Oratore 1.4.14; Dionysius Halic. in Syrianus, Scholia Hermog., ed. Rabe, 1.4‑5; Tacitus, Dialog. de Orator., ch. 33; Plutarch, De liberis educ. 4 (2A); and see Paul Shorey, Trans. Am. Philol. Assn. 40 (1909), 185‑201. Imitation is presumed to have been emphasized in the Pergamene school of rhetors under Stoic influence. Quintilian, 3.5.1, tells us that it was classed by some writers as a fourth element, which he yet subordinates to Theory. On Imitation cf. Antonius in Cicero, De Oratore 2.21.89 ff.; Dionysius Halic., De Imitat. (Opuscula 2.197‑217, ed. Usener-Radermacher); Quintilian, 10.1.20 ff.; Eduard Stemplinger, Das Plagiat in der Griech. Lit., Leipzig and Berlin, 1912, pp81 ff.; Kroll, "Rhetorik", coll. 1113 ff.; Paulus Otto, Quaestiones selectae ad libellum qui est περὶ ὕψους spectantes, diss. Kiel, 1906, pp6‑19; G. C. Fiske, Lucilius and Horace, Madison, 1920, ch. 1; J. F. D'Alton, Roman Literary Theory and Criticism, London, New York, and Toronto, 1931, pp426 ff.; Richard McKeon, "Literary Criticism and the Concept of Imitation in Antiquity," Mod. Philol. 34, 1 (1936), 1‑35, and esp. pp26 ff.; D. L. Clark, "Imitation: Theory and Practice in Roman Rhetoric," Quart. Journ. Speech 37, 1 (1951), 11‑22. "Exercise" refers to the progymnasmata, of which our treatise and Cicero's De Inv. show the first traces in Latin rhetoric, and to the "suasoriae" (deliberationes) and "controversiae" (causae) in which the treatise abounds. See also 4.xliv.58 (Refining). The divorce between praeexercitamenta and exercitationes belongs to the Augustan period.

12 The author's treatment of the parts of a discourse differs from that of Aristotle, who, in Rhet. 3.13 (1414A) ff., discusses them — Proem, Statement of Facts, Proof, and Conclusion — with all three kinds of oratory in view, not only the judicial, under Arrangement. Note that Invention is applied concretely to the parts of the discourse; in 1.xi.18 ff. below the Issues are subjoined to Proof and Refutation. Cf. Cicero, De Inv. 1.xiv.19. The Stoic scheme included Proem, Statement of Facts, Replies to Opponents, and Conclusion (Diogenes Laertius 7.43).

13 πρασκευάζεται. The concept is Isocratean. Cf. Rhet. ad Alex., ch. 29 (1436A); Dionysius Halic., De Lys. 17; Anon. Seg. 5 and 9 (Spengel-Hammer 1[2].353‑4); Rufus 4 (Spengel-Hammer 1[2].399); Anon., in Rabe, Proleg. Sylloge, p62.

14 This definition is translated directly from a Greek original; see Hermogenes, Progymn. 2 (ed. Rabe, p4), Syrianus, Scholia Hermog. (ed. Rabe 2.170), Theon 4 (Spengel 2.78). Cf. Cicero, De Inv. 1.xix.27.

15 Cf. Cicero, De Inv. 1.xxiv.34.

16 Cf. Cicero, De Inv. 1.xlii.78 (reprehensio).

17 πρόλογος, probably.

18 ἔνδοξον, παράδοξον, ἀμφίδοξον, ἄδοξον, the σχήματα ὑποθέσεων, later sometimes called figurae materiarum or controversiarum. The classification is on a moral basis. These genera causarum are not to be confused with the three genera causarum treated in 1.ii.2 above. Most rhetoricians (e.g.Cicero, De Inv. 1.xv.20) treated also a fifth kind, obscurum (δυσπαρακολούθητον), and some included six kinds (see Quintilian, 4.1.40). The division into four σχήματα is Hermagorean (cf. Augustine, De Rhet. 1.17 ff., in Halm, pp147 ff.), and here our author conflates Hermagorean doctrine with the pre-Aristotelian doctrine of the Proem; see Georg Thiele, Hermagoras, Strassburg, 1893, pp113‑121.

19 προοίμιον, "Prelude"; see Aristotle, Rhet. 3.14 (1414B), Quintilian, 4.1.2 ff., Anon. Seg. 4, in Spengel-Hammer 1(2).352‑3. Cf. Cicero, De Inv. 1.xv.20.

20 ἔφοδος. The term is used in Oxyr. Pap. 3.27, in a rhetorical treatise of perhaps the beginning of the fourth century B.C. In Isaeus 3, Dionysius Halic. comments on Isaeus' use of ἔφοδοι. Cf. also Anon., in Rabe, Proleg. Syll., p206, and Anon., Proleg. Invent., in Walz 7(1).54.

21 The hearer is to be rendered προσεκτικός, εὐμαθής, εὔνους. Cf. Cicero, De Inv. 1.xvi.22‑3. The doctrine is pre-Aristotelian; see, e.g.Rhet. ad Alex., ch. 29 (1436A), and Epist. Socrat. 30.4 on Isocrates. Aristotle, Rhet. 3.14 (1415A), includes Receptiveness under Attention. Cicero, Part. Orat. 8.28, gives three aims for the Direct Opening; ut amice, ut intellegenter, ut attente audiamur. For the importance of Attention in present-day rhetoric, cf. J. A. Winans, Public Speaking, New York, 1917, p194: "Persuasion is the process of inducing others to give fair, favourable, or undivided attention to propositions."

22 ff.

23 Cf. Rhet. ad Alex., ch. 29 (1437B): "If there is no prejudice against ourselves or our speech or our subject, we shall set forth our Proposition immediately at the beginning, appealing for attention and a benevolent hearing afterwards."

24 So Aristotle, Rhet. 3.14 (1415A), and Anon. Seg. 7 (Spengel-Hammer 1[2].353‑4): ἐκ τοῦ αὐτοῦ or τοῦ λέγοντος, ἐκ τοῦ ἐναντίου or ἀντιδίκου, ἐκ τῶν ἀκροατῶν or δικαζόντων, ἐκ τῶν πραγμάτων. Cf. also Cicero, De Inv. 1.xvi.22. Here as throughout the first two books the author is dealing with judicial oratory.

25 πάθος, here assigned to the Introduction, also has a place in the Conclusion; see‑xxxi.50 below. Thus the author accords with the early Greek rhetoric based on the divisions of the discourse. Nowhere does he make a profound analytical study of the emotions such as we find in Aristotle, Rhet., Bk. II. In Anon. Seg. 6 (Spengel-Hammer 1[2].353) are listed five emotions of the hearer which play a part in the function of the Proem: pity, anger, fear, hate, and desire.

26 ἔχθρα or μῖσος, φθόνος, ὀργή.

27 In Cicero, De Inv. 1.xvii.23, the Subtle Approach is specifically used in the admirabile genus causae. The three causae of Cicero correspond to the "occasions" classified by our author. Anon. Seg. 21 ff. (Spengel-Hammer 1[2].357 ff.) gives four occasions on which the Prooemion should be dispensed with, and discusses the view that it must always be used.

28 Cf. Cicero, De Inv. 1.xvii.24.

29 παραφθέγγεσθαι.

30 Cf. Cicero, De Inv. 1.xvii.25.

31 See 4.xxix.40 below.

32 Note that humour enters the rhetorical system under the Introduction. Aristotle, Rhet. 3.14 (1415A), also discusses the place of laughter in the Proem. This classification of eighteen means of provoking laughter must have been a recent accession to rhetorical theory; cf. the summary in Cicero, De Oratore 2.61.248 ff. On wit and humour in ancient rhetoric, see E. Arndt, De ridiculi doctrina rhetorica, Bonn, 1904; Mary A. Grant, The Ancient Rhetorical Theories of the Laughable, Madison, 1924; and Wilhelm Kroll in P.‑W., art "Rhetorik," coll. 1076‑7. Cf. also Wilhelm Süss, Neue Jahrb. 23 (1920), 28‑45.

33 Of the adversary's argument, perhaps.

34 παρὰ προσδοκίαν.

35 λαθραίως δι’ ἑτέρων λόγων. Anon., Proleg. Invent., in Walz 7(1).54.14‑16, gives the same precept.

36 Anon. Seg. 19 (Spengel-Hammer 1[2].356) makes the same point.

37 Cf. Cicero, De Inv. 1.xviii.26.

38 διήγησις. Cf. Cicero, De Inv. 1.xix.27.

39 διηγήσεις ἐπὶ κριτῶν λεγόμεναι.

40 διαβολή.

41 Incidental Narrative (παραδιήγησις); cf. Quintilian, 9.2.107, and Anon. Seg. 61 (Spengel-Hammer 1[2].364‑5), who distinguishes it from Digression (παρέκβασις).

42 διηγήσεις καθ’ ἑαυτάς.

43 The reference is to the progymnasmata (praeexercitamenta). Narratio provided the first exercises imposed by the rhetor; see Quintilian, 2.4.1, and Jean Cousin, Études sur Quintilien, Paris, 1936, 1.113.

44 According to τὰ πράγματα or τὰ πρόσωπα.

45 μῦθος, but see Cousin, op. cit., 1.113, note 4. Cf. Aristotle, Poetics 9 (1451A): "The poet's function is to describe, not the things that actually have happened, but the kind of things that might well happen — that are possible in the sense of being either probable or inevitable." But it is doubtless the miraculous element in tragedies that is here in mind; see the example of fabula in Cicero, De Inv. 1.xix.27.

46 ἱστορία.

47 πλάσμα. Cf. argumentum (Presumptive Proof) in 2.ii.3, and argumentatio (argument) in 2.ii.2 below.

48 Cf. the figure notatio (Character Delineation), 4.l.63 below.

49 Cf. Cicero, Epist. ad Fam. 51.2.4, on writing history: "For nothing is so suited to the delight of the reader as are shifting circumstances and the vicissitudes of fortune." Concerning our author's doctrine of narratio as reflecting Hellenistic ideas on historiography and story writing, see R. Reitzenstein, Hellenistische Wundererzählungen, Leipzig, 1906, pp84 ff., and for further interpretations of these sections dealing with narratio (and of Cicero, De Inv. 1.xix.27), Karl Barwick, Hermes 63, 3 (1928), 261‑87, and Friedrich Pfister, Hermes 68, 4 (1933), 457‑60.

50 The narratio is developed (tractatioἐξεργασία) in the progymnasmata.

51 συντομία, σαφήνεια, πιθανότης. The precept is Isocratean (see Quintilian, 4.2.31‑2) or even older (see Octave Navarre, Essai sur la rhétorique grecque avant Aristote, Paris, 1900, p246). Aristotle, Rhet. 3.16 (1416B), scorns the injunction of brevity in favour of the "proper mean." Cf. Cicero, De Inv. 1.xx.28.

52 Presented κεφαλαιωδῶς, not μερικῶς.

53 Doxapatres (eleventh century), in Walz 2.230, gives the same example; it is doubtless Greek in origin.

54 The author of these iambic trimeters and the name of the comedy from which they come are both unknown. Cf. Plautus, Miles Gloriosus 439: quae heri Athenis Ephesum adveni vesperi.

55 Cf. Cicero, De Inv. 1.xx.29.

56 ὑπερβατῶς, in inverted order.

57 In 1.ix.14 above.

58 Cf. Cicero, De Inv. 1.xxi.29‑30.

59 See note on above. Our author's doctrine of the Subtle Approach is Greek in origin, although we know no specific Greek source for the three occasions. That Cicero in De Inv. presents a like classification makes our author's claim difficult to explain; see the Introduction to the present volume, pp. xxix‑xxx.

60 "Outlining of the case," the Analysis. προκατασκευή, a combination of προέκθεσις and μερισμός. In Cicero, De Inv. 1.xxii.31‑xxiii.33, partitio. Cf. the figure divisio, 4.xl.52 below.

61 Martianus Capella, 5.556, makes the same point for the partitio.

62 A favourite theme of the rhetoricians; cf. also 1.xv.25 and 1.xvi.26 below, Cicero, De Inv. 1.xiii.18‑xiv.19, 1.xxii.31, Quintilian, 3.11.4 ff., 3.5.11, 7.4.8.

63 Cf. the figure distributio, 4.xxxv.47, and distributio, the Broken Tone of Debate, 3.xiii.23 below.

64 Cf. the enumeratio (Summing Up) of below. Quintilian, 4.5.24, praises Hortensius for the great pains he took with his Partitions, "although Cicero often lightly mocks him for counting his points on his fingers."

65 ἔκθεσις. Cf. the expositio (Proposition of an argument) in 2.xx.32, and note on 2.xviii.28 below.

66 Cf. Cicero, Brutus 60.217 on Curio: "His memory was so altogether wanting that at times when he had announced three points he would add a fourth or miss the third."

67 See note on 4.vii.10 below.

68 πίστις, κατασκευὴ κεφαλαίων.

69 ἀνασκευή. In the Rhet. ad Alex., ch. 7 (1428A), Refutation is considered as one of seven subheads under Proof; see also ch. 13 (1431A).

70 I follow the practice, perhaps begun by Thomas Wilson, Arte of Rhetorique (first ed. 1553), ed. G. H. Mair, Oxford, 1910, p89, of translating constitutio (or status [= στάσις], the term used by Cicero, except in De Inv., and by most other rhetoricians) as "Issue." The constitutio (= σύστασις, most probably; see S. F. Bonner, Class. Rev. 61 [1947], 84‑6) is the conjoining of two conflicting statements, thus forming the centre of the argument and determining the character of the case; for a study of the meaning of status; and of constitutio see A. O. L. Dieter, Speech Monographs 17, 4 (1950), 345‑69. Our author makes use of the status system only for judicial oratory, the examples being drawn from both criminal and civil causes. Adumbrated in pre-Aristotelian rhetoric (where it was close to Attic procedure), as well as in Aristotle's Rhetoric, it was developed principally by Hermagoras. Stoic and Aristotelian dialectic exerted an influence in its evolution. The terminology and Roman examples show that our author assimilated the Greek theory. His system differs considerably from that of Hermagoras; see Kroehnert, pp21 ff.; Hermann Netzker, Hermagoras, Cicero, Cornificius quae docuerint de "statibus", Kiel diss., 1879, and "Die constitutio legitima des Cornificius," Neue Jahrbücher 133 (1886), 411‑16; Heinrich Weber, Ueber die Quellen der Rhet. ad Her. des Cornificius, Zurich diss., 1886; Thiele, Hermagoras; Walter Jaeneke, De statuum doctrina ab Hermogene tradita, Leipzig, 1904; Claus Peters, De rationibus inter artem rhetoricam quarti et primi saeculi intercedentibus, Kiel diss., 1907, pp10 ff.; Kroll in P.‑W., art. "Rhetorik," coll. 1090‑5. Cicero's system in De Inv. 1.viii.10 ff. differs from that of our author. Cf. Quintilian, 3.6.1 ff. Most critics see our author as a follower of Marcus Antonius in his system of status cf. Quintilian, 3.6.45 ff. (note that legalis, not legitimus is the term used for the "Legal" Issue by the followers of Antonius), and Kroehnert, loc. cit. Modern students of Roman Law for the most part think that from the juristic point of view, as against the rhetorical, the status system was over-intricate and impractical; see note on 2.xiii.19 below.

71 Hermagoras taught four Types of Issue; see note on Transference, 1.xi.19, below.

72 See Introduction, pp. xxi ff., esp. p. xxiii.

73 For the spelling iuridicalis see Stroebel, Tulliana, p20.

74 στοχασμός. Cf. Cicero, De Inv. 1.viii.11.

75 See the progymnasma in 2.xviii.28‑xix.30 below. Resenting the award of the arms of Achilles to Ulysses, Ajax goes mad and slaughters a flock of sheep, thinking them his enemies. Cf. Hermogenes, De Stat. 3 (ed. Rabe, pp49 and 54): A man is discovered burying in a lonely place the body of a person recently slain, and is charged with murder; Fortunatianus 1.6 (Halm, p85) and 1.8 (Halm, p87).

76 στάσις νομική. Cf. Cicero, De Inv. 1.xiii.17.

77 στάσις κατὰ ῥητὸν καὶ διάνοιαν. Cf. the sententia (Maxim) of 4.xvii.24 below.

78 ἀντινομία.

79 ἀμφιβολία.

80 ὅρος.

81 μετάληψις. Procedural in nature. Cf. translatio criminis, 1.xiv.24, and the figure translatio, 4.xxxiv.45 below. Hermagoras was the first to enter this among the Types of Issue; see Cicero, De Inv. 1.xi.16, and Quintilian, 3.6.60.

82 συλλογισμός.

83 This controversia is of Greek origin; cf. Hermogenes, De Stat. 2 (ed. Rabe, p41), Fortunatianus 1.26 (Halm, pp100 f.) and Cicero, De Inv.

84 On the importance of this type of rhetorical discussion for juristic theory see note on 2.xiii.19 below.

85 Doubtless the law of C. Servilius Glaucia de pecuniis repetundis (111 B.C.).

86 The law of Cn. Domitius Ahenobarbus de sacerdotiis passed in 104 B.C. and repealed by Sulla in (?) 81 B.C., is here indicated.

87 When specifically the case came up we do not know; Marx, Proleg., p108, conjectures c. 100 B.C.

88 Cf. Cicero, De Inv. 2.xl.116; Lucilius 16.552‑3.

89 At the Comitia; over these the voters passed in single file to the saepta in the Campus Martius to deposit their votes.

90 Probably in his second tribunate in 100 B.C., L. Appuleius Saturninus proposed his law fixing the fee for grain at five-sixths of an as (for a modius); the lex Sempronia frumentaria of 123 had set the price at almost eight times that amount. It is uncertain whether the bill passed. Caepio was in 99 B.C. charged with treason, but was acquitted. Cf. 2.xii.17 (the supposed defence by Caepio), and for Saturninus 4.xxii.31 and 4.liv.67. This Q. Servilius Caepio was the son of the Q. Servilius Caepio referred to in 1.xiv.24 below.

91 Literally, what constitutes "impairing the sovereign majesty" of the state. Cf. 2.xii.17 and 4.xxv.35 below. The crimen maiestatis minutae was invented probably in 103 B.C.; the Lex Appuleia de maiestate attempted to define the offence. See Hugh Last, Camb. Anc. History 9.160‑1. Cf. Antonius on the trial of Norbanus (95 B.C.) in Cicero, De Oratore 2.25.107 ff., 2.39.164.

92 Anglo-American procedure has no specific analogue to the term translatio as here defined, nor indeed was this status suited to Roman juristic procedure. See Theodor Schwalbach, Zeitschr. der Savigny-Stiftung für Rechtsgeschichte, Romanist. Abt., 2 (1881), 209‑32; Moriz Wlassak, Der Ursprung der römischen Einrede (Festschr. Leopold Pfaff, Vienna, 1910, pp12 ff.; and Artur Steinwenter, Sav. Zeitschr. 65 (1947), 69‑120, esp. p81, and pp104‑5. Note also raro venit in iudicium below.

93 The Romans in the preliminary proceedings before the magistrate, where the issue is defined; the Greeks in the actual trial before the judge.

94 Despite the alteration, the source of this controversia may originally have been Aristotle, Rhet. 1.13 (1374A): "It often happens that a man may admit . . . theft, but not that the act was sacrilege (on the ground that the thing stolen was not the property of a god)." Cf. Cicero, De Inv. 1.viii.11; Quintilian, 3.6.41 and 5.10.39; Hermogenes, De Stat. 2 (ed. Rabe, p37) and 4 (ed. Rabe, p62); Sopater, in Walz 8.102‑5; also Rabe, Proleg. Syll., pp218, 253, and 336. On peculatus publicus see Mommsen, pp764 ff.

95 Cf. Victorinus, in Halm, p276.

96 These counterpleas accepted by the praetor allege new states of fact or of law; although the defendant accepts the intentio in the plaintiff's formula, he urges the praetor to permit the insertion of an exceptio in the formula. See A. H. J. Greenidge, The Legal Procedure of Cicero's Time, Oxford, 1901, pp178‑181, 229‑235; E. Rabel, Sav. Zeitschr. 32 (1911), 413‑23; Leopold Wenger, Institutes of the Roman Law of Civil Procedure, tr. O. H. Fisk, New York, 1940, pp155 ff. Cf. Cicero, De Inv. 1.vii.10 and 2.xix.57‑xx.61. Cicero in De Inv. (2.xix.57) and our author supply the first references to the exceptio in extant literature. See Friedrich von Velsen, Sav. Zeitschr. 21 (1900), 104‑5.

97 Twelve Tables 5.7a.

98 Marx (Proleg., p107; see also R. Reitzenstein, Gnomon 5 [1929], 605‑6) affirms, and Mommsen (p643, note 6) denies, the genuineness of this law; it is omitted in Cicero, De Inv. 2.l.148.

99 Twelve Tables 5.3.

100 Cf. Twelve Tables 5.4‑5.

101 Cf. Cicero, De Inv. 2.l.149, and on this (ritualistic) form of punishment Mommsen, pp921‑3; Alfred Pernice, Sav. Zeitschr. 17 (1896), 210 ff.; Max Radin, Journ. Rom. Studies 10 (1920), 119‑30; Rudolf Düll, Atti del Congr. Internaz. di Diritto Rom. (Roma), Pavia, 1935, 2.363‑408. According to Livy, Periochae 68, Malleolus was the first (101 B.C.) to suffer this punishment.

102 στάσις δικαιολογική. Cf. Cicero, De Inv. 1.xi.15, 2.xxiii.69 ff.

103 κατ’ ἀντίληψιν.

104 κατ’ ἀντίθεσιν.

105 The mime was condemned; see 2.xiii.19 below. This type of controversia is Greek in origin; cf. Hermogenes, De Stat. 11, ed. Rabe, pp88‑9 (but belonging to the subtype of Legal Issue based on Analogy; see 1.xiii.23 above), and Sopater, in Walz 8.383‑4. See also Sulpitius Victor 39, in Halm, p337.

106 συγγνώμη.

107 μετάστασις.

108 ἀντέγκλημα.

109 ἀντίστασις.

110 Cf. 2.xvi.23 and 2.xxvii.43 below, and Cicero, De Inv. 1.xi.15.

111 κάθαρσις.

112 παραίτησις.

113 ἐκ προνοίας. Voluntary acts = τὰ ἑκούσια, involuntary = τὰ ἀκούσια.

114 ἄγνοια.

115 τύχη, ἀτυχία, ἀτύχημα.

116 ἄνάγκη, βία.

117 In 105 B.C., Q. Servilius Caepio, through his failure to coöperate with his colleague Mallius, brought upon the army a disastrous defeat at Arausio at the hands of the Cimbri, Teutones, and their allies. Caepio's proconsular imperium was abrogated, and by the motion of the tribunus plebis, L. Cassius Longinus, he lost senatorial rank (104 B.C.). Cicero, Brutus 35.135, says of Caepio that the fortunes of war were imputed to him as a crime.

118 Manumitted, the slave was answerable for his crime to the courts, and not subject to domestic punishment. The controversia is doubtless Greek in origin. Cf. Quintilian, 7.4.14.

119 The controversia is Greek in origin; the like situation is presented in De Inv. 2.xxxi.96. Cf. Quintilian, 7.4.14.

120 Cf. Cicero, De Inv. 2.xxxiv.104.

121 The court was obliged to render a verdict strictly on the law, and could not lessen the punishment. See also Quintilian, 5.13.5 and 7.4.17 ff.

122 Especially that of a magistrate; cf. Mommsen, pp149 f. and note 5, and Wenger, Institutes of the Roman Law of Civil Procedure, p32.

123 Cf. 1.x.17 above, and 1.xvi.26 below.

124 P. Sulpicius Rufus was among those proscribed by Sulla in 88 B.C. Pursued by Sulla's horsemen, he took refuge in a villa at Laurentum, where he was betrayed by a slave and murdered. His head was exhibited on the rostra. The slave was set free by Sulla's orders and then hurled down the Tarpeian Rock. Cf. Appian, Bell. Civil. 1.7.60: "[Sulpicius and others] had been voted enemies of Rome, and anyone who came upon them had been authorized to kill them with impunity or to bring them before the consuls [Cornelius Sulla and Quintus Pompeius]." Velleius Paterculus, 2.19, says that Sulpicius and his followers were declared exiles by formal decree (lege lata). It was forbidden to bury Sulpicius' body; see 4.xxii.31 below. If this controversia was not merely a school exercise, and the murderer was actually called to account, that may have been in the year 87, when Sulpicius' party again came into power. See the notes on 4.xiv.20, xxiv.33, xxviii.38, xxxiv.45, lii.65, and also 2.xxviii.45.

125 Cf. Cicero, De Inv. 2.xxiv.72. According to the historians, after L. Cassius Longinus in the war against the Cimbri and their allies fell (in 107 B.C.) at the hands of the Tigurini in Gaul, C. Popilius Laenas, legate, made a pact: the Roman survivors would, in return for hostages and half of their possessions, leave in safety. The Roman band went under the yoke of the Tigurini.​a No mention is here made of the hostages nor of passing under the yoke, nor does the amount of the baggage agree precisely with that in the historical accounts. The charge of treason was made in 106 by the tribune C. Caelius Caldus; a fragment of the defence appears in 4.xxiv.34 below. Popilius went into exile, but perhaps after a later trial under Saturninus' law of treason of 103 B.C.

126 Ratioτὸ συνέχον, firmamentumτὸ αἴτιον. Cicero misconstrued firmamentum in De Inv. 1.xiv.19; cf. Part. Orat. 29.103, Quintilian, 3.11.19, Volkmann, pp100‑108, Thiele, Hermagoras, pp67‑78, Jaeneke, De statuum doctrina ab Hermogene tradita, p111.

127 Cf. 1.x.17 and 1.xv.25 above.

128 Cf. in Aristotle, Rhet. 2.23 (1397AB), the third of the 28 topoi from which to draw enthymemes, the topos from correlative terms: "And if 'well' or 'justly' is true of the person to whom a thing is done, you may argue that it is true of the doer. But here the argument may be fallacious; for, granting that the man deserved what he got, it does not follow that he deserved it from you" (tr. Lane Cooper), and in 2.24 (1401B), the fallacy of omission illustrated by the argument in Theodectes' Orestes. For the argument as used in other Greek tragedies, cf. Tyndareüs in Euripides, Orestes 538‑9: "My daughter, dying, paid her debt to justice, but that she died at his hand was not meet," and Castor, addressing Orestes in Electra 1244: "Your mother now has but justice, but your deed is not just."

129 κρινόμενον, Hermagorean doctrine.

130 Cf. Cicero, De Inv. 1.xiv.19.

131 κατάφασις.

132 ἀπόφασις.

Thayer's Note:

a For "passing under the yoke", see the last paragraph of the article Jugum in Smith's Dictionary of Greek and Roman Antiquities and my note there.

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