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

BOOK I.

But the man with whose sword the murder had been committed, rose long before dawn and called over and over again on his companion; he thought that he did not answer because he was overcome with sleep; and so he took his sword and the rest of the things which he had with him, and departed on his journey alone. The innkeeper not long afterwards raised an outcry that the man was murdered, and in company with some of his lodgers pursued the man who had gone away. They arrest him on his journey, draw his sword out of its sheath, and find it bloody, the man is brought back to the city by them, and put on his trial. On this comes the allegation of the crime, "You murdered him," and the denial, "I did not murder him," and from this is collected the statement of the case. The question in the conjectural examination is the same as that submitted to the judges, "Did he murder him, or not?" V. Now we will set forth the topics one portion of which applies to all conjectural discussion. But it will be desirable to take notice of this in the exposition of these topics and of all the others, and to observe that they do not all apply to every discussion. For as every man's name is made up of some letters, and not of every letter, so it is not every store of arguments which applies to every argumentation, but some portion which is necessary applies to each. All conjecture, then, must be derived either from the cause of an action, or from the person, or from the case itself.

The cause of an action is divided into impulsion and ratiocination. Impulsion is that which without thought encourages a man to act in such and such a manner, by means of producing some affection of the mind, as love, anger, melancholy, fondness for wine, or indeed anything by which the mind appears to be so affected as to be unable to examine anything with deliberation and care, and to do what it does owing to some impulse of the mind, rather than in consequence of any deliberate purpose. But ratiocination is a diligent and careful consideration of whether we shall do anything or not do it. And it is said to have been in operation, when the mind appears for some particular definite reason to have avoided something which ought not to have been done, or to have adopted something which ought to have been done, so that if anything is said to have been done for the sake of friendship, or of chastising an enemy, or under the influence of fear, or of a desire for glory or for money, or in short, to comprise everything under one brief general head, for the sake of retaining, or increasing, or obtaining any advantage; or, on the other hand, for the purpose of repelling, or diminishing, or avoiding any disadvantage;--for those former things must fall under one or other of those heads, if either any inconvenience is submitted to for the purpose of avoiding any greater inconvenience, or of obtaining any more important advantage; or if any advantage is passed by for the sake of obtaining some other still greater advantage, or of avoiding some more important disadvantage.

This topic is as it were a sort of foundation of this statement of the case; for nothing that is done is approved of by any one unless some reason be shown why it has been done. Therefore the accuser, when he says that anything has been done in compliance with some impulse, ought to exaggerate that impulse, and any other agitation or affection of the mind, with all the power of language and variety of sentiments of which he is master, and to show how great the power of love is, how great the agitation of mind which arises from anger, or from any one of those causes which he says was that which impelled any one to do anything. And here we must take care, by an enumeration of examples of men who have done anything under the influence of similar impulse, and by a collation of similar cases, and by an explanation of the way in which the mind itself is affected, to hinder its appearing marvellous if the mind of a man has been instigated by such influence to some pernicious or criminal action.

VI. But when the orator says that any one has done such and such an action, not through impulse, but in consequence of deliberate reasoning, he will then point out what advantage he has aimed at, or what inconvenience he has avoided, and he will exaggerate the influence of those motives as much as he can, so that as far as possible the cause which led the person spoken of to do wrong, may appear to have been an adequate one. If it was for the sake of glory that he did so and so, then he will point out what glory he thought would result from it; again, if he was influenced by desire of power, or riches, or by friendship, or by enmity; and altogether whatever the motive was, which he says was his inducement to the action, he will exaggerate as much as possible. And he is bound to give great attention to this point, not only what the effect would have been in reality, but still more what it would have been in the opinion of the man whom he is accusing. For it makes no difference that there really was or was not any advantage or disadvantage, if the man who is accused believed that there would or would not be such. For opinion deceives men in two ways, when either the matter itself is of a different kind from that which it is believed to be, or when the result is not such as they thought it would be. The matter itself is of a different sort when they think that which is good bad, or, on the other hand, when they think that good which is bad. Or when they think that good or bad which is neither good nor bad, or when they think that which is good or bad neither bad nor good.

Now that this is understood, if any one denies that there is any money more precious or sweeter to a man than his brother's or his friend's life, or even than his own duty, the accuser is not to deny that; for then the blame and the chief part of the hatred will be transferred to him who denies that which is said so truly and so piously. But what he ought to say is, that the man did not think so; and that assertion must be derived from those topics which relate to the person, concerning whom we must speak hereafter. VII. But the result deceives a person, when a thing has a different result from that which the persons who are accused are said to have thought it would have. As when a man is said to have slain a different person from him whom he intended to slay, either because he was deceived by the likeness or by some suspicion, or by some false indication; or that he slew a man who had not left him his heir in his will, because he believed that he had left him his heir. For it is not right to judge of a man's belief by the result, but rather to consider with what expectation, and intention, and hope he proceeded to such a crime; and to recollect that the matter of real importance is to consider with what intention a man does a thing, and not what the consequence of his action turns out to be.

And in this topic this will be the great point for the accuser, if he is able to show that no one else had any reason for doing so at all. And the thing next in importance will be to show that no one else had such great or sufficient reason for doing so. But if others appear also to have had a motive for doing so, then we must show that they had either no power, or no opportunity, or no inclination to do it. They had no power if it can be said that they did not know it, or were not in the place, or were unable to have accomplished it; they had no opportunity, if it can be proved that any plan, any assistants, any instruments, and all other things which relate to such an action, were wanting to them. They had no inclination, if their disposition can be said to be entirely alien to such conduct, and unimpeachable. Lastly, whatever arguments we allow a man on his trial to use in his defence, the very same the prosecutor will employ in delivering others from blame. But that must be done with brevity, and many arguments must be compressed into one, in order that he may not appear to be accusing the man on his trial for the sake of defending some one else, but to be defending some one else with a view to strengthen his accusation against him.

VIII. And these are for the most part the things which must be done and considered by an accuser. But the advocate for the defence will say, on the other hand, either that there was no motive at all, or, if he admits that there was, he will make light of it, and show that it was a very slight one, or that such conduct does not often proceed from such a motive. And with reference to this topic it will be necessary to point out what is the power and character of that motive, by which the person on his trial is said to have been induced to commit any action; and in doing this it is requisite to adduce instances and examples of similar cases, and the actual nature of such a motive is to be explained as gently as possible, so that the circumstance which is the subject of the discussion may be explained away, and instead of being considered as a cruel and disorderly act, may be represented as something more mild and considerate, and still the speech itself may be adapted to the mind of the hearer, and to a sort of inner feeling, as it were, in his mind. But the orator will weaken the suspicions arising from the ratiocination, if he shall say either that the advantage intimated had no existence, or a very slight one, or that it was a greater one to others, or that it was no greater advantage to himself than to others, or that it was a greater disadvantage than advantage to himself. So that the magnitude of the advantage which is said to have been desired, was not to be compared with the disadvantage which was really sustained, or with the danger which was incurred. And all those topics will be handled in the same manner in speaking of the avoiding of disadvantage.

But if the prosecutor has said that the man on his trial was pursuing what appeared to him to be an advantage, or was avoiding that which appeared to him to be a disadvantage, even though he was mistaken in that opinion, then the advocate for the defence must show that no one can be so foolish as to be ignorant of the truth in such an affair. And if that be granted, then the other position cannot be granted, that the man ever doubted at all what the case was, but that he, without the least hesitation, considered what was false as false, and what was true as true. But if he doubted, then it was a proof of absolute insanity for a man under the influence of a doubtful hope to incur a certain danger. But as the accuser when he is seeking to remove the guilt from others must use the topics proper to an advocate for the defence; so the man on his trial must use those topics which have been allotted to an accuser, when he wishes to transfer an accusation from his own shoulders to those of others. IX. But conjectures will be derived from the person, if those things which have been attributed to persons are diligently considered, all of which we have mentioned in the first book; for sometimes some suspicion arises from the name. But when we say the name, we mean also the surname. For the question is about the particular and peculiar name of a man, as if we were to say that a man is called Caldus because he is a man of a hasty and sudden disposition; or that ignorant Greeks have been deceived by men being called Clodius, or Caecilius, or Marcus.

And we may also derive some suspicious circumstances from nature; for all these questions, whether it is a man or a woman, whether he is of this state or that one, of what ancestors a man is descended, who are his relations, what is his age, what is his disposition, what bodily strength, or figure, or constitution he has, which are all portions of a man's nature, have much influence in leading men to form conjectures. Many suspicions also are engendered by men's way of life, when the inquiry is how, and by whom, and among whom a man was brought up and educated, and with whom he associates, and what system and habits of domestic life he is devoted to. Moreover, argumentation often arises from fortune; when we consider whether a man is a slave or a free man, rich or poor, noble or ignoble, prosperous or unfortunate; whether he now is, or has been, or is likely to be a private individual or a magistrate; or, in fact, when any one of those circumstances is sought to be ascertained which are attributable to fortune. But as habit consists in some perfect and consistent formation of mind or body, of which kind are virtue, knowledge, and their contraries; the fact itself, when the whole circumstances are stated, will show whether this topic affords any ground for suspicion. For the consideration of the state of a man's mind is apt to give good grounds for conjecture, as of his affectionate or passionate disposition, or of any annoyance to which he has been exposed; because the power of all such feelings and circumstances is well understood, and what results ensue after any one of them is very easy to be known.

But since study is an assiduous and earnest application of the mind to any particular object with intense desire, that argument which the case itself requires will easily be deduced from it. And again, some suspicion will be able to be inferred from the intention; for intention is a deliberate determination of doing or not doing something. And after this it will be easy to see with respect to facts, and events, and speeches, which are divided into three separate times, whether they contribute anything to confirming the conjectures already formed in the way of suspicion. X. And those things indeed are attributed to persons, which when they are all collected together in one place, it will be the business of the accuser to use them as inducing a disapprobation of the person; for the fact itself has but little force unless the disposition of the man who is accused can be brought under such suspicion as to appear not to be inconsistent with such a fault. For although there is no great advantage in expressing disapprobation of any one's disposition, when there is no cause why he should have done wrong, still it is but a trifling thing that there should be a motive for an offence, if the man's disposition is proved to be inclined to no line of conduct which is at all discreditable. Therefore the accuser ought to bring into discredit the life of the man whom he is accusing, by reference to his previous actions, and to show whether he has ever been previously convicted of a similar offence. And if he cannot show that, he must show whether he has ever incurred the suspicion of any similar guilt; and especially, if possible, that he has committed some offence or other of some kind under the influence of some similar motive to this which is in existence here, in some similar case, or in an equally important case, or in one more important, or in one less important. As, if with respect to a man who he says has been induced by money to act in such and such a manner, he were able to show that any other action of his in any case had been prompted by avarice.

And again it will be desirable in every cause to mention the nature, or the manner of life, or the pursuits, or the fortune, or some one of those circumstances which are attributed to persons, in connexion with that cause which the speaker says was the motive which induced the man on his trial to do wrong; and also, if one cannot impute anything to him in respect of an exactly corresponding class of faults, to bring the disposition of one's adversary into discredit by reference to some very dissimilar class. As, if you were to accuse him of having done so and so, because he was instigated by avarice; and yet, if you are unable to show that the man whom you accuse is avaricious, you must show that other vices are not wholly foreign to his nature, and that on that account it is no great wonder if a man who in any affair has behaved basely, or covetously, or petulantly, should have erred in this business also. For in proportion as you can detract from the honesty and authority of the man who is accused, in the same proportion has the force of the whole defence been weakened.

If it cannot be shown that the person on his trial has been ever before implicated in any previous guilt, then that topic will come into play which we are to use for the purpose of encouraging the judges to think that the former character of the man has no bearing on the present question; for that he has formerly concealed his wickedness, but that he is now manifestly convicted; so that it is not proper that this case should be looked at with reference to his former life, but that his former life should now be reproved by this conduct of his, and that formerly he had either no opportunity of doing wrong, or no motive to do so. Or if this cannot be said, then we must have recourse to this last assertion,--that it is no wonder if he now does wrong for the first time, for that it is necessary that a man who wishes to commit sin, must some time or other commit it for the first time. If nothing whatever is known of his previous life, then it is best to pass over this topic, and to state the reason why it is passed over, and then to proceed at once to corroborate the accusation by arguments.

XI. But the advocate for the defence ought in the first place to show, if he can, that the life of the person who is accused has always been as honourable as possible. And he will do this best by recounting any well known services which he has rendered to the state in general, or any that he has done to his parents, or relations, or friends, or kinsmen, or associates, or even any which are more remarkable or more unusual, especially if they have been done with any extraordinary labour, or danger, or both, or when there was no absolute necessity, purely because it was his duty, or if he has done any great benefit to the republic, or to his parents, or to any other of the people whom I have just mentioned, and if, too, he can show that he has never been so influenced by any covetousness as to abandon his duty, or to commit any error of any description. And this statement will be the more confirmed, if when it is said that he had an opportunity of doing something which was not quite creditable with impunity, it can be shown at the same time that he had no inclination to do it.

But this very kind of argument will be all the stronger if the person on his trial can be shown to have been unimpeachable previously in that particular sort of conduct of which he is now accused, as, for instance, if he be accused of having done so and so for the sake of avarice, and can be proved to have been all his life utterly indifferent to the acquisition of money. On this indignation may be expressed with great weight, united with a complaint that it is a most miserable thing, and it may be argued that it is a most scandalous thing, to think that that was the man's motive, when his disposition during the whole of his life has been as unlike it as possible. Such a motive often harries audacious men into guilt, but it has no power to impel an upright man to sin. It is unjust, moreover, and injurious to every virtuous man, that a previously well-spent life should not be of the greatest possible advantage to a man at such a time, but that a decision should be come to with reference only to a sudden accusation which can be got up in a hurry, and with no reference to a man's previous course of life, which cannot be extemporised to suit an occasion, and which cannot be altered by any means.

But if there have been any acts of baseness in his previous life, or if they be said to have undeservedly acquired such a reputation, or if his actions are to be attributed by the envy, or love of detraction, or mistaken opinion of some people, either to ignorance, or necessity, or to the persuasion of young men, or to any other affection of mind in which there is no vice, or if he has been tainted with errors of a different kind, so that his disposition appears not entirely faultless, but still far remote from such a fault, and if his disgraceful or infamous course of life cannot possibly be mitigated by any speech,--then it will be proper to say that the inquiry does not concern his life and habits, but is about that crime for which he is now prosecuted, so that, omitting all former actions, it is proper that the matter which is in hand should be attended to. XII. But suspicions may be derived from the fact itself, if the administration of the whole matter is examined into in all its parts; and these suspicions will arise partly from the affair itself when viewed separately, and partly from the persons and the affairs taken together. They will be able to be derived from the affair, if we diligently consider those circumstances which have been attributed to such affairs. And from them all the different genera, and most subordinate species, will appear to be collected together in this statement of the case.

It will therefore be desirable to consider in the first place what circumstances there are which are united to the affair itself,--that is to say, which cannot be separated from it, and with reference to this topic it will be sufficient to consider what was done before the affair in question took place from which a hope arose of accomplishing it, and an opportunity was sought of doing it, what happened with respect to the affair itself, and what ensued afterwards. In the next place, the execution of the whole affair must be dealt with for this class of circumstances which have been attributed to the affair has been discussed in the second topic. So with reference to this class of circumstances we must have a regard to time, place, occasion, and opportunity, the force of each particular of which has been already carefully explained when we were laying down precepts for the confirmation of an argument. Wherefore, that we may not appear to have given no rules respecting these things, and that we may not, on the other hand, appear to have repeated the same things twice over, we will briefly point out what it is proper should be considered in each part. In reference to place, then, opportunity is to be considered; and in reference to time, remoteness; and in reference to occasion, the convenience suitable for doing anything; and with reference to facility, the store and abundance of those things by means of which anything is done more easily, or without which it cannot be done at all.

Ideas discussed in this chapter

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

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