The Orations of Marcus Tullius Cicero, Volume 4 · Marcus Tullius Cicero

BOOK I.

Wherefore, although this kind of address has no proper place in judicial proceedings, except to a certain limited extent; still, because both the portion which is allowable must be employed at times, and because it is often to be employed in all its force in the senate or in the council, we will give rules for it also. For there was a long deliberation in the senate and in the council about Syphax; and there was a long discussion before Lucius Opimius and his bench of assessors respecting Quintus Numitorius Pullus; and in this case the entreaty for pardon had more influence than the strict inquiry into the case. For he did not find it so easy to prove that he had always been well affected towards the Roman people, by employing the statement of the case founded on conjecture, as to show that it was reasonable to pardon him on account of his subsequent services, when he added the topics of deprecation to the rest of his defence.

XXXV. It will be desirable, therefore, for the man who entreats to be pardoned for what he admits that he has done, to enumerate whatever services of his he is able to, and, if possible, to show that they are greater than those offences which he has committed, so that it may appear that more good than evil has proceeded from him; and then to put forward also the services done by his ancestors, if there are any such; and also to show that he did what he did, not out of hatred, or out of cruelty, but either through folly, or owing to the instigation of some one, or for some other honourable or probable cause; and after that to promise and undertake that he has been taught by this error of his, and confirmed in his resolution also by the kindness of those who pardon him, to avoid all such conduct in future. And besides this, he may hold out a hope that he will hereafter be able, in some respect or other, to be of great use to those who pardon him now; he will find it serviceable to point out that he is either related to the judges, or that he has been as far back as possible an hereditary friend of theirs; and to express to them the earnestness of his good-will towards them, and the nobility of the blood and dignity of those men who are anxious for his safety. And all other qualities and circumstances which, when attributable to persons, confer honour and dignity on them, he, using no complaint, and avoiding all arrogance, will point out as existing in himself, so that he may appear to deserve some honour rather than any kind of punishment; and after that it will be wise of him to mention other men who have been pardoned for greater offences.

And he will do himself a great deal of good if he shows that he himself, when in power, was merciful and inclined to pardon others. And the offence of which he is now accused must be extenuated and made to appear as trifling as possible; and it must be shown to be discreditable, or at all events inexpedient, to punish such a man as he is. After that it will be advisable to seek to move pity by use of common topics, according to those rules which have been laid down in the first book. XXXVI. But the adversary will exaggerate the offences; he will say that nothing was done ignorantly, but that everything was the result of deliberate wickedness and cruelty. He will show that the accused person has been pitiless, arrogant, and (if he possibly can) at all times disaffected, and that he cannot by any possibility be rendered friendly. If he mentions any services done by him, he will prove that they were done for some private object, and not out of any good will; or else he will prove that he has conceived hatred since or else that all those services have been effaced by his frequent offences, or else that his services are of less importance than his injuries, or that, as he has already received adequate honours for his services, he ought also to have punishment inflicted on him for the injuries which he has committed. In the next place, he will urge that it is discreditable or pernicious that he should be pardoned. And besides that, it will be the very extremity of folly not to avail oneself of one's power over a man, over whom one has often wished to have power, and that it is proper to consider what feelings, or rather what hatred they ought to entertain towards him. But one common topic to be employed will be indignation at his offence, and another will be the argument, that it is right to pity those who are in distress, owing to misfortune, and not those who are in such a plight through their own wickedness.

Since, then, we have been dwelling so long on the general statement of the case, on account of the great number of its divisions, in order to prevent any one's mind from being so distracted by the variety and dissimilarity of circumstances, and so led into some errors, it appears right also to remind the reader of what remains to be mentioned of that division of the subject, and why it remains. We have said, that that was the juridical sort of examination in which the nature of right and wrong, and the principles of reward and punishment, were investigated. We have explained the causes in which inquiry into right and wrong is proceeded with. It remains now to explain the principles which regulate the distribution of rewards and punishments.

XXXVII. For there are many causes which consist of a demand of some reward. For there is often question before the judges of the rewards to be conferred on prosecutors, and very often some reward is claimed for them from the senate, or from the bench of judges. And it is not advisable that any one should think that, when we are adducing some instance which is under discussion in the senate, we by so doing are abandoning the class of judicial examples. For whatever is said with reference to approving or disapproving of a person, when the consideration of the opinions of the judges is adapted to that form of expression, that, even although it is treated with reference to the language in which the opinion is couched, is a deliberative argument, still, because it has especial reference to some person, it is to be accounted also judicial. And altogether, a man who has diligently investigated the meaning and nature of all causes will perceive that they differ both in character and in form; but in the other divisions he will see them all consistent with each other, and every one connected with the other. At present, let us consider the question of rewards.

Lucius Licinius Crassus, the consul, pursued and destroyed a band of people in the province of the Nearer Gaul, who were collected together under no known or regular leader, and who had no name or number of sufficient importance to be entitled enemies of the Roman people; but still they made the province unsafe by their constant sallies and piratical outbreaks. He returns to Rome. He demands a triumph. Here, as also in the case of the employment of deprecation, it does not at all concern us to supply reasons to establish and to invalidate such a claim, and so to come before the judges; because, unless some other statement of the case is also put forth, or some portion of such statement, the matter for the decision of the judges will be a simple one, and will be contained in the question itself. In the case of the employment of deprecation, in this manner: "Whether so and so ought to be punished." In this instance, in such a manner: "Whether he ought to be rewarded." Now we will furnish some topics suitable for the investigation into the principles of rewards.

XXXVIII. The principle, then, on which rewards are conferred is distributable into four divisions: as to the services done; the person who has done them; the kind of reward which is to be conferred; and the means of conferring it. The services done will be considered with reference to their own intrinsic merits, and to the time, and to the disposition of the man who did them, and to their attendant circumstances. They will be examined with reference to their own intrinsic merits, in this manner:--Whether they are important or unimportant; whether they were difficult or easy; whether they are of a common or extraordinary nature; whether they are considered honourable on true or false principles. And with reference to the time at which they were done:--If they were done at a time when we had need of them; when other men could or would not help them; if they were done when all other hope had failed. With reference to the disposition of the man who did them:--If he did not do them with a view to any advantage of his own, but if he did everything else for the express purpose of being able to do this afterwards. And with reference to the attendant circumstances:--If what was done appears not to have been done by chance, but in consequence of some deliberate design, or if chance appears to have hindered the design.

But, with respect to the man who did the service in question, it will be requisite to consider in what manner he has lived, and what expense or labour he has devoted to that object; whether he has at any time done any other similar action; whether he is claiming a reward for himself for what is in reality the result of another person's exertions, or of the kindness of the gods. Whether he has ever, in the case of any one else, pronounced that he ought not to be rewarded for such a reason; or, whether he has already had sufficient honour paid to him for what he has done; or, whether what has been done is an action of such a sort that, if he had not done it, he would have been deserving of punishment; but that he does not deserve reward for having done it; or, whether he is premature in his demand for a reward, and is proposing to sell an uncertain hope for a certain reward; or, whether he claims the reward in order to avoid some punishment, by its appearing as if the case had already been decided in his favour.

XXXIX. But as to the question of the reward, it will be necessary to consider what reward, how great a reward is claimed, and why it is claimed; and also, to what reward, and to how great a reward, the conduct in question is entitled. And in the next place, it will be requisite to inquire what men had such honours paid them in the time of our ancestors, and for what causes those honours were paid. And, in the next place, it will be urged that they ought not to be made too common. And this will be one common topic for any one who speaks in opposition to a person who claims a reward;--that rewards for virtue and eminent services ought to be considered serious and holy things, and that they ought not to be conferred on worthless men, or to be made common by being bestowed on men of no particular eminence. And another will be, to urge that men will become less eager to practise virtue when the reward of virtue has been made common; for those things which are scarce and difficult of attainment appear honourable and acceptable to men. And a third topic is, to put the question, whether, if there are any instances of men who, in the times of our ancestors, were thought worthy of such honours on account of their eminent virtue, they will not be likely to think it some diminution of their own glory, when they see that such men as these have such rewards conferred on them. And then comes the enumeration of those men, and the comparison of them with those against whom the orator is speaking. But the topics to be used by the man who is claiming the reward are, first of all, the exaggeration of his own action; and next, the comparison of the actions of those men who have had rewards conferred on them with his own; and lastly, he will urge that other men will be repelled from the pursuit of virtue if he himself is denied the reward to which he is entitled.

"Let my heir give my wife a hundredweight of silver plate, consisting of such vessels as may be chosen. After he was dead, the mother demands of her son some very magnificent vessels of very valuable carving. He says that he is only bound to give her those vessels which he himself chooses." Here, in the first place, it is necessary to show if possible that the will has not been drawn up in ambiguous terms, because all men in ordinary conversation are accustomed to employ that expression, whether consisting of one word or more, in that meaning in which the speaker hopes to show that this is to be understood. Then it is desirable to prove that from both the preceding and subsequent language of the will, the real meaning which is being sought may be made evident. So that if all the words, or most of them, were considered separately by themselves, they would appear of doubtful meaning. But as for those which can be made intelligible by a consideration of the whole document, these have no business to be thought obscure.

In the next place, it will be proper to draw one's conclusion as to the intentions which were entertained by the writer from all his other writings, and actions, and sayings, and his general disposition, and from the usual tenor of his life; and to scrutinise that very document in which this ambiguous phrase is contained which is the subject of the present inquiry, all over, in all its parts, so as to see whether there is anything opposite to that interpretation which we contend for, or contrary to that which the adversary insists on adopting. For it will be easy to consider what it is probable that the man who drew up the document intended, from its whole tenor, and from the character of the writer, and from those other circumstances which are characteristic of the persons concerned. In the next place, it will be desirable to show, if the facts of the case itself afford any opportunity for doing so, that that meaning which the opposite party contends for, is a much more inconvenient one to adopt than that which we have assumed to be the proper one, because there is no possible means of carrying out or complying with that other meaning; but what we contend for can be accomplished with great ease and convenience.

As in this law (for there is no objection to citing an imaginary one for the sake of giving an instance, in order to the more easy comprehension of the matter):--"Let not a prostitute have a golden crown. If such a case exists, it must be confiscated." Now, in opposition to a man who contended that that was to become public property in accordance with this law, it might be argued, "that there could be no way of making a prostitute public property, and there is no intelligible meaning for the law if that is what is to be adopted as its proper construction; but as to the confiscation of anything made of gold, the management and the result is easy, and there is no difficulty in it."

XLI. And it will be desirable also to pay diligent attention to this point, whether if that sense is sanctioned which the opposite party contends for, any more advantageous, or honourable, or necessary object appears to have been omitted by the framer of the document in question. That will be done if we can prove that the object which we are attempting to prove is either honourable, or expedient, or necessary; and if we can also assert that the interpretation which our adversaries insist upon, is not at all entitled to such a character. In the next place, if there is in the law itself any controversy arising from any ambiguity, it will be requisite to take great care to show that the meaning which our adversaries adopt is provided for in some other law. But it will be very serviceable indeed to point out how the testator would have expressed himself, if he had wished the interpretation which the adversary puts upon his words to be carried into execution or understood. As for instance, in this cause, the one, I mean, in which the question is about the silver plate, the woman might argue, "That there was no use in adding the words 'as may be chosen,' if the matter was left to the selection of the heir; for if no such words had been inserted, there could have been no doubt at all that the heir might have given whatever he himself chose. So that it was downright madness, if he wished to take precautions in favour of his heir, to add words which might have been wholly left out without such omission prejudicing his heir's welfare."

Wherefore, it will be exceedingly advisable to employ this species of argument in such causes:--"If he had written with this intention he would not have employed that word; he would not have placed that word in that place;" for it is from such particulars as these that it is easiest to collect the intention of the writer. In the next place, it is necessary to inquire when the document was drawn up, in order that it may be understood what it was likely that he should have wished at such a time. Afterwards it will be advisable to point out, by reference to the topics furnished by the deliberative argument, what is more useful and what more honourable to the testator to write, and to the adversary to prove; and it will be well for both parties to employ common topics, if there is any room for extending either argument.

XLII. A controversy arises with respect to the letter of the document and to its meaning, when one party employs the very words which are set down in the paper; and the other applies all his arguments to that which he affirms that the framer of the document intended. But the intention of the framer of the document must be proved by the man who defends himself, by reference to that intention, to have always the same object in view and the same meaning; and it must also, either by reference to the action or to some result, be adapted to the time which the inquiry concerns. It must be proved always to have the same object in view, in this way:--"The head of a house, at a time when he had no children, but had a wife, inserted this clause in his will: 'If I have a son or sons born to me, he or they is or are to be my heir or heirs.' Then follow the ordinary provisions. After that comes the following clause: 'If my son dies before he comes into the property, which is held in trust for him, then,' says the clause, 'you shall be my reversionary heir.' He never has a son. His next of kin raise a dispute with the man who is named as the heir, in the case of the testator's son dying before he comes into the property which his guardians are holding for him." In this case it cannot be said that the meaning of the testator ought to be made to suit the time or some particular result, because that intention alone is proved on which the man who is arguing against the language of the will relies, in order to defend his own right to the inheritance.

There is another class of topics which introduce the question as to the meaning of expressions, in which the mere simple intention of the framer is not endeavoured to be proved, for that has the same weight with reference to every period and every action; but it is argued that it ought to be interpreted with reference to some particular action, or to some event happening at that particular time. And that is especially supported by the divisions of the juridical assumptive mode of investigation. For then the comparison is instituted; as in the case of "a man who, though the law forbad the gates to be opened by night, did open them in a certain war, and admitted some reinforcements into the town, in order to prevent their being overwhelmed by the enemy if they remained outside the gates; because the enemy were encamped close to the walls." Then comes the retorting of the charge; as in the case of "that soldier who, when the common law of all men forbad any one to kill a man, slew his own military tribune who was attempting to offer violence to him." Then comes the exculpation; as in the case of "that man who, when the law had appointed some particular days within which he was to proceed on his embassy, did not set out because the quaestor did not furnish him with money for his expenses." Then comes the admission of the fact by way of purgation, and also by the excuse of ignorance; as "in the case of the sacrificing a calf;" and with reference to compulsion, as "in the case of the beaked ship;" and with reference to accident, as "in the case of the sudden rise of the river Eurotas." Wherefore, it is best that the meaning should be introduced in such a way, as that the framer of the law should be proved to have intended some one definite thing; else in such a way that he should be proved to have meant this particular thing, under these circumstances, and at this time.

XLIII. He, therefore, who is defending the exact language of the law, will generally be able to use all these topics; and will always be able to use the greater part of them. First of all, he will employ a panegyric of the framer of it, and the common topic that those who are the judges have no business to consider anything except what is expressly stated in the law; and so much the more if any legal document be brought forward, that is to say, either the law itself, or some portion of the law. Afterwards--and this is a point of the greatest importance--he will employ a comparison of the action or of the charge brought by the opposite party with the actual words of the law; he will show what is contained in the law, what has been done, what the judge has sworn. And it will be well to vary this topic in many ways, sometimes professing to wonder in his own mind what can be said against this argument; sometimes recurring to the duty of the judge, and asking of him what more he can think it requisite to hear, or what further he expects; sometimes by bringing forward the adversary himself, as if in the position of a person making an accusation; that is to say, by asking him whether he denies that the law is drawn up in that manner, or whether he denies that he himself has contravened it, or disputed it. If he denies either of these points, then one must avow that one will say no more; if he denies neither of them, and yet continues to urge his arguments in opposition to one, then one must say that it is impossible for any one ever to expect to see a more impudent man.

Ideas discussed in this chapter

Text from Project Gutenberg, public domain in the United States.

Open in the reader →