Book 5

There have been certain writers of no small authority who have held that the sole duty of the orator was to instruct: in their view appeals to the emotions were to be excluded for two reasons, first on the ground that all disturbance of the mind was a fault, and secondly that it was wrong to distract the judge from the truth by exciting his pity, bringing influence to bear, and the like. Further, to seek to charm the audience, when the aim of the orator was merely to win success, was in their opinion not only superfluous for a pleader, but hardly worthy of a self-respecting man.

The majority however, while admitting that such arts undoubtedly formed part of oratory, held that its special and peculiar task is to make good the case which it maintains and refute that of its opponent.

Whichever of these views is correct (for at this point I do not propose to express my own opinion), they will regard this book as serving a very necessary purpose, since it will deal entirely with the points on which they lay such stress, although all that I have already said on the subject of judicial causes is subservient to the same end.

For the purpose of the exordium and the slatement of facts is merely to prepare the judge for these points, while it would be a work of supererogation to know the bases of cases or to consider the other points dealt with above, unless we intend to proceed to the consideration of the proof Finally, of the five parts into which we divided judicial cases, any single one other than the proof may on occasion be dispensed with. But there can be no suit in which the proof is not absolutely necessary. With regard to the rules to be observed in this connexion, we shall, I think, be wisest to follow our previous method of classification and show first what is common to all cases and then proceed to point out those which are peculiar to the several kinds of cases.

1. To begin with it may be noted that the division laid down by Aristotle has met with almost universal approval. It is to the effect that there are some proofs adopted by the orator which lie outside the art of speaking, and others which he himself deduces or, if I may use the term, begets out of his case. The former therefore have been styled ἄτεχνοι or inartificial proofs, the latter ἔντεχνοι or artificial.

To the first class belong decisions of previous courts, rumours, evidence extracted by torture, documents, oaths, and witnesses, for it is with these that the majority of forensic arguments are concerned. But though in themselves they involve no art, all the powers of eloquence are as a rule required to disparage or refute them. Consequently in my opinion those who would eliminate the whole of this class of proof from their rules of oratory, deserve the strongest condemnation.

It is not, however, my intention to embrace all that can be said for or against these views. I do not for instance propose to lay down rules for commonplaces, a task requiring infinite detail, but merely to sketch out the general lines and method to be followed by the orator. The method once indicated, it is for the individual orator not merely to employ his powers on its application, but on the invention of similar methods as the circumstances of the case may demand. For it is impossible to deal with every kind of case, even if we confine ourselves to those which have actually occurred in the past without considering those which may occur in the future.

As regards decisions in previous courts, these fall under three heads. First, we have matters on which judgment has been given at some time or other in cases of a similar nature: these are, however, more correctly termed precedents, as for instance where a father's will has been annulled or confirmed in opposition to his sons. Secondly, there are judgments concerned with the case itself; it is from these that the name praeiudicium is derived: as examples I may cite those passed against Oppianicus or by the senate against Milo. Thirdly, there are judgments passed on the actual case, as for example in cases where the accused has been deported, or where renewed application is made for the recognition of an individual as a free man, or in portions of cases tried in the centumviral court which come before two different panels of judges.

Such previous decisions are as a rule confirmed in two ways: by the authority of those who gave the decision and by the likeness between the two cases. As for their reversal, this can rarely be obtained by denouncing the judges, unless they have been guilty of obvious error. For each of those who are trying the case wishes the decision given by another to stand, since he too has to give judgment and is reluctant to create a precedent that may recoil upon himself.

Consequently, as regards the first two classes, we must, if possible, take refuge in some dissimilarity between the two cases, and two cases are scarcely ever alike in all their details. If, however, such a course is impossible and the case is the same as that on which the previous decision was given, we must complain of the negligence shown in the conduct of the previous case or of the weakness of the parties condemned, or of undue influence employed to corrupt the witnesses, or again of popular prejudice or ignorance which reacted unfavourably against our client; or else we must consider what has occurred since to alter the aspect of the case.

If none of these courses can be adopted, it will still be possible to point out that the peculiar circumstances of many trials have led to unjust decisions; hence condemnations such as that of Rutilius and acquittals such as those of Clodius and Catiline. We must also ask the judges to consider the facts of the case on their merits rather than make their verdict the inevitable consequence of a verdict given by others.

When, however, we are confronted by decrees of the senate, or ordinances of emperors or magistrates, there is no remedy, unless we can make out that there is some difference, however small, between the cases, or that the same persons or persons holding the same powers have made some subsequent enactment reversing the former decision. Failing this, there will be no case for judgment.

With regard to rumour and common report, one party will call them the verdict of public opinion and the testimony of the world at large; the other will describe them as vague talk based on no sure authority, to which malignity has given birth and credulity increase, an ill to which even the most innocent of men may be exposed by the deliberate dissemination of falsehood on the part of their enemies. It will be easy for both parties to produce precedents to support their arguments.

A like situation arises in the case of evidence extracted by torture: one party will style torture an infallible method of discovering the truth, while the other will allege that it also often results in false confessions, since with some their capacity of endurance makes lying an easy thing, while with others weakness makes it a necessity. It is hardly worth my while to say more on the subject, as the speeches both of ancient and modern orators are full of this topic.

Individual cases may however involve special considerations in this connexion. For if the point at issue is whether torture should be applied, it will make all the difference who it is who demands or offers it, who it is that is to be subjected to torture, against whom the evidence thus sought will tell, and what is the motive for the demand. If on the other hand torture has already been applied, it will make all the difference who was in charge of the proceedings, who was the victim and what the nature of the torture, whether the confession was credible or consistent, whether the witness stuck to his first statement or changed it under the influence of pain, and whether he made it at the beginning of the torture or only after it had continued some time. The variety of such questions is as infinite as the variety of actual cases.

It is also frequently necessary to speak against documents, for it is common knowledge that they are often not merely rebutted, but even attacked as forgeries. But as this implies either fraud or ignorance on the part of the signatories, it is safer and easier to make the charge one of ignorance, because by so doing we reduce the number of the persons accused.

But our proceedings as a whole will draw their arguments from the circumstances of the case at issue. For example, it may be incredible that an incident occurred as stated in the documents, or, as more often happens, the evidence of the documents may be overthrown by other proofs which are likewise of an inartificial nature; if, for example, it is alleged that the person, whose interests are prejudiced by the document, or one of the signatories was absent when the document was signed, or deceased before its signature, or if the dates disagree, or events preceding or following the writing of the document are inconsistent with it. Even a simple inspection of a document is often sufficient for the detection of forgery.

With regard to oaths, parties either offer to take an oath themselves, or refuse to accept the oath of their opponent, demand that their opponent should take an oath or refuse to comply with a similar demand when proffered to themselves. To offer to take an oath unconditionally without demanding that one's opponent should likewise take an oath is as a rule a sign of bad faith.

If, however, anyone should take this course, he will defend his action by appealing to the blamelessness of his life as rendering perjury on his part incredible, or by the solemn nature of the oath, with regard to which he will win all the greater credence, if without the least show of eagerness to take the oath he makes it clear that he does not shrink from so solemn a duty. Or again, if the case is such as to make this possible, he will rely on the trivial nature of the point in dispute to win belief, on the ground that he would not incur the risk of the divine displeasure when so little is at stake. Or, finally, he may in addition to the other means which he employs to win his case offer to take an oath as a culminating proof of a clear conscience.

The man who refuses to accept his opponent's offer to take an oath, will allege that the inequality of their respective conditions are not the same for both parties and will point out that many persons are not in the least afraid of committing perjury, even philosophers having been found to deny that the gods intervene in human affairs; and further that he who is ready to take an oath without being asked to do so, is really proposing to pass sentence on his own case and to show what an easy and trivial thing he thinks the oath which he offers to take.

On the other hand the man who proposes to put his opponent on oath appears to act with moderation, since he is making his adversary a judge in his own case, while he frees the actual judge from the burden of coming to a decision, since the latter would assuredly prefer to rest on another man's oath than on his own.

This fact makes the refusal to take an oath all the more difficult, unless indeed the affair in question be of such a nature that it cannot be supposed that the facts are known to the person asked to take the oath. Failing this excuse, there is only one course open to him: he must say that his opponent is trying to excite a prejudice against him and is endeavouring to give the impression that he has real ground for complaint though he is not in a position to win his case; consequently, though a dishonest man would eagerly have availed himself of the proposal, he prefers to prove the truth of his statements rather than leave a doubt in anyone's mind as to whether he has committed perjury or no.

But in my young days advocates grown old in pleading used to lay it down as a rule that we should never be in a hurry to propose that our opponent should take an oath, just as we should never allow him the choice of a judge nor select our judge from among the supporters of the opposite side: for if it is regarded as a disgrace to such a supporter to say anything against his client, it is surely a still worse disgrace that he should do anything that will harm his client's case.

It is, however, the evidence that gives the greatest trouble to advocates. Evidence may be given either in writing or orally by witnesses present in court. Documentary evidence is easier to dispose of. For it is likely that the deponent was less ashamed of himself in the presence of a small number of witnesses, and his absence from court is attacked as indicating a lack of confidence. If we cannot call the character of the deponent in question, we may attack the witnesses to his signature.

Further there is always a certain tacit prejudice against documentary evidence, since no one can be forced to give such evidence save of his own free will, whereby he shows that he harbours unfriendly feelings towards the person against whom he bears witness. On the other hand an advocate should be chary of denying that a friend may give true evidence against a friend or an enemy against an enemy, provided they are persons of unimpeachable credit. But the subject admits of copious discussion, from whichever side it be regarded.

The task of dealing with the evidence of witnesses present in court is, however, one of great difficulty, and consequently whether defending or impugning them the orator employs a twofold armoury in the shape of a set speech and examination. In set speeches it is usual to begin with observations either on behalf of or against witnesses in general.

In so doing we introduce a commonplace, since one side will contend that there can be no stronger proof than that which rests on human knowledge, while the other, in order to detract from their credibility, will enumerate all the methods by which false evidence is usually given.

The next procedure is the common practice of making a special attack, which all the same involves impugning the validity of evidence given by large numbers of persons. We know, for instance, that the evidence of entire nations and whole classes of evidence have been disposed of by advocates. For example, in the case of hearsay evidence, it will be urged that those who produce such evidence are not really witnesses, but are merely reporting the words of unsworn persons, while in cases of extortion, those who swear that they paid certain sums to the accused are to be regarded not as witnesses, but as parties to the suit.

Sometimes however the advocate will direct his speech against single individuals. Such a form of attack may be found in many speeches, sometimes embedded in the speech for the defence and sometimes published separately like the speech against the evidence of Vatinius.

The whole subject, therefore, demands a thorough investigation, as the task which we have in hand is the complete education of an orator. Otherwise the two books written on this subject by Domitius Afer would suffice. I attended his lectures when he was old and I was young, and consequently have the advantage not merely of having read his book, but of having heard most of his views from his own lips. He very justly lays down the rule that in this connexion it is the first duty of an orator to make himself thoroughly acquainted with the case, a remark which of course applies to all portions of a speech.

How such knowledge may be acquired I shall explain when I come to the appropriate portion of this work. This knowledge will suggest material for the examination and will supply weapons ready to the speaker's hand: it will also indicate to him the points for which the judge's mind must be prepared in the set speech. For it is by the set speech that the credit of witnesses should be established or demolished, since the effect of evidence on the individual judge depends on the extent to which he has been previously influenced in the direction of believing the witness or the reverse. And since there are two classes of witnesses those who testify of their own free will and those who are summoned to attend in the public courts of whom the former are available to either party, the latter solely to the accusers, we must distinguish between the duties of the advocate who produces witnesses and the advocate who refutes them.

He who produces a voluntary witness is in a position to know what he is likely to say: consequently the task of examining him would seem to be rendered easier. But even here such cases make a great demand on the acumen and watchfulness of the advocate, who must see that his witness is neither timid, inconsistent nor imprudent.

For the opposing counsel have a way of making a witness lose his head or of leading him into some trap; and once a witness trips, he does more harm to his own side than he would have done good, had he retained his composure and presence of mind. The advocate must therefore put his witnesses through their paces thoroughly in private before they appear in court and must test them by a variety of questions such as may well be put to them by his opponent. The result will be that they will not contradict themselves or, if they do make some slip, can be set upon their feet again by a timely question from the advocate who produces them.

Still, even in the case of witnesses whose evidence is consistent, we must be on our guard against treachery. For such witnesses are often put up by one's opponent and, after promising to say everything that will help our case, give answers of exactly the opposite character and carry more weight by the admission of facts which tell against us than they would have done had they disproved them.

We must therefore discover what motives they have for doing our opponent a hurt, and the fact that they were once his enemies will not suffice our purpose: we must find out whether they have ceased to be ill-disposed to him or whether they desire by means of their evidence to effect a reconciliation with him, in order to assure ourselves that they have not been bribed or repented of their previous attitude and changed their purpose. Such precautions are necessary even with witnesses who know that what they propose to say is true; but it is still more necessary with those who promise to give false evidence.

For experience shows that they are more likely to repent of their purpose, their promises are less to be relied on, and, if they do keep their promise, their evidence is easier to refute.

Witnesses appearing in answer to a subpoena may be divided into two classes: those who desire to harm the accused, and those who do not. The accuser sometimes is aware of their disposition, sometimes unaware. For the moment let us assume that he is aware of their disposition, although I must point out that in either case the utmost skill is required in their examination.

For if an advocate is producing a witness who is desirous of harming the accused, he must avoid letting this desire become apparent, and must not at once proceed to question him on the point at issue. On the contrary this point must be approached by a circuitous route in such a manner as to make it seem that the statement which the witness is really desirous of making has been forced from him. Again lie should not press the witness too much, for fear he should impair his credit by the glibness with which lie answers every question, but should draw from him just so much as may seem reasonable to elicit from a single witness.

On the other hand in the case of a witness who is reluctant to tell the truth, the essential for successful examination is to extort the truth against his will This can only be done by putting questions which have all the appearance of irrelevance. If this he done, he will give replies which he thinks can do no harm to the party which he favours, and subsequently will be led on from the admissions which he has made to a position which renders it impossible for him to deny the truth of the facts which he is reluctant to state.

For just as in a set speech we usually collect detached arguments which in themselves seem innocuous to the accused, but taken together prove the case against him, so we must ask the reluctant witness a number of questions relative to acts antecedent or subsequent to the case, places, dates, persons, etcetera, with a view to luring him into some reply which will force him to make the admissions which we desire or to contradict his previous evidence.

If this fails, we must content ourselves with making it clear that he is reluctant to tell what he knows, and lead him with a view to tripping him up on some point or other, even though it be irrelevant to the case; we must also keep him in the witness-box for an unusual length of time, so that by saying everything that can be said and more than is necessary on behalf of the accused, he may be rendered suspect to the judge. Thus he will do the accused no less harm than if he had told the truth against him.

But if (to proceed to our second supposition) the advocate does not know what the intentions of the witness may be, he must advance gradually inch by inch and sound him by examination and lead him step by step to the particular reply which it is desired to elicit.

But since these witnesses are sometimes so artful that their first replies are designed to meet the wishes of the questioner, in order to win all the greater credit when subsequently they answer in a very different way, it will be the duty of the advocate to dismiss a suspect witness while he can still do so with advantage.

In the case of advocates for the defence examination is in some respects easier, in some more difficult. It is more difficult because it is rarely possible for them to have any previous knowledge of what the witness is likely to say, and easier because, when they come to cross-examine, they know what he has already said.

Consequently in view of the uncertainty involved, there is need for careful inquiry with a view to discovering the character of the witness against the accused and what are his motives for hostility and what its extent: and all such points about the witness should be set forth in advance and disposed of, whether we desire to represent the evidence against the accused as instigated by hatred, envy, bribery or influence. Further, if our opponents bring forward only a small number of witnesses, we must attack them on that head; if on the other hand they produce an excessive number, we must accuse them of conspiracy: if the witnesses are persons of inconspicuous rank, we must minimise their importance, while if they are powerful, we shall accuse our adversaries of bringing undue influence to bear.

It will, however, be still more helpful if we expose the motives which they have for desiring to injure the accused, and these will vary according to the nature of the case and the parties concerned. For the other lines of argument mentioned above are often answered by the employment of commonplaces on similar lines, since the prosecutor, if he produce but few witnesses of inconspicuous rank, can parade the simple honesty of his methods on the ground that he has produced none save those who are in a position to know the real facts, while if he produce a number of distinguished witnesses, it is even easier to commend them to the court.

But at times, just as we have to praise individual witnesses, so we may have to demolish them, whether their evidence has been given in documentary form or they have been summoned to appear in person. This was easier and of more frequent occurrence in the days when the examination of the witnesses was not deferred till after the conclusion of the pleading. With regard to what we should say against individual witnesses, no general rules can be laid down: it will depend on the personality of the witness.

It remains to consider the technique to be followed in the examination of witnesses. The first essential is to know your witness. For a timid witness may be terrorised, a fool outwitted, an irascible man provoked, and vanity flattered. The shrewd and self-possessed witness, on the other hand, must be dismissed at once as being malicious and obstinate; or refuted, not by cross-examination, but by a brief speech from the counsel for the defence; or may be put out of countenance by some jest, if a favourable opportunity presents itself; or, if his past life admits of criticism, his credit may be overthrown by the scandalous charges which can be brought against him.

It has been found advantageous at times when confronted with an honest and respectable witness to refrain from pressing him hard, since it is often the case that those who would have defended themselves manfully against attack are mollified by courtesy. But every question is either concerned with the case itself or with something outside the case. As regards the first type of question counsel for the defence may, by adopting a method which I have already recommended for the prosecutor, namely by commencing his examination with questions of an apparently irrelevant and innocent character and then by comparing previous with subsequent replies, frequently lead witnesses into such a position that it becomes possible to extort useful admissions from them against their will.

The schools, it is true, give no instruction either as to theory or practice in this subject, and skill in examination comes rather from natural talent or practice. If, however, I am asked to point out a model for imitation, I can recommend but one, namely that which may be found in the dialogues of the Socratics and more especially of Plato, in which the questions put are so shrewd that although individually as a rule the answers are perfectly satisfactory to the other side, yet the questioner reaches the conclusion at which he is aiming.

Fortune sometimes is so kind that a witness gives an answer involving some inconsistency, while at times (and this is a more frequent occurrence) one witness contradicts another. But acute examination methodically conducted will generally reach the same result which is so often reached by chance.

There are also a number of points strictly irrelevant to the case on which questions may be put with advantage. We may for example ask questions about the past life of other witnesses or about the witness' own character, with a view to discovering whether they can be charged with some disgraceful conduct, or degrading occupation, with friendship with the prosecutor or hostility toward the accused, since in replying to such questions they may say something which will help our cause or may be convicted of falsehood or of a desire to injure the accused. But above all our examination must be circumspect, since a witness will often launch some smart repartee in answering counsel for the defence and thereby win marked favour from the audience in general. Secondly, we must put our questions as far as possible in the language of everyday speech that the witness, who is often an uneducated man, may understand our meaning, or at any rate may have no opportunity of saying that he does not know what we mean, a statement which is apt to prove highly disconcerting to the examiner.

I must however express the strongest disapproval of the practice of sending a suborned witness to sit on the benches of the opposing party, in order that on being called into the witness-box from that quarter he may thereby do all the more damage to the case for the accused by speaking against the party with whose adherents he was sitting or, while appearing to help him by his testimony, deliberately giving his evidence in such an extravagant and exaggerated manner, as not only to detract from the credibility of his own statements, but to annul the advantage derived from the evidence of those who were really helpful. I mention this practice not with a view to encourage it, but to secure its avoidance. Documentary evidence is not frequently in conflict with oral. Such a circumstance may be turned to advantage by either side. For one party will rest its case on the fact that the witness is speaking on oath, the other on the unanimity of the signatories.

Again there is often a conflict between the evidence and the arguments. One party will argue that the witnesses know the facts and are bound by the sanctity of their oath, while the arguments are nought but ingenious juggling with the facts. The other party will argue that witnesses are procured by influence, fear, money, anger, hatred, friendship, or bribery, whereas arguments are drawn from nature; in giving his assent to the latter the judge is believing the voice of his own reason, in accepting the former he is giving credence to another.

Such problems are common to a number of cases, and are and will always be the subject of vehement debate. Sometimes there are witnesses on both sides and the question arises with regard to themselves as to which are the more respectable in character, or with regard to the case, which have given the more credible evidence, with regard to the parties to the case, which has brought the greater influence to bear on the witnesses.

If to this kind of evidence anyone should wish to add evidence of the sort known as supernatural, based on oracles, prophecies and omens, I would remind him that there are two ways in which these may be treated. There is the general method, with regard to which there is an endless dispute between the adherents of the Stoics and the Epicureans, as to whether the world is governed by providence. The other is special and is concerned with particular departments of the art of divination, according as they may happen to affect the question at issue.

For the credibility of oracles may be established or destroyed in one way, and that of soothsayers, augurs, diviners and astrologers in another, since the two classes differ entirely in nature. Again the task of establishing or demolishing such evidence as the following will give the orator plenty to do; as for example if certain words have been uttered under the influence of wine, in sleep or in a fit of madness, or if information has been picked up from the mouths of children, whom the one party will assert to be incapable of invention, while the other will assert that they do not know what they are saying.

The following method may not merely be used with great effect, but may even be badly missed when it is not employed. You gave me the money. Who counted it out? Where did this occur and from what source did the money come? You accuse me of poisoning. Where did I buy the poison and from whom? What did I pay for it and whom did I employ to administer it? Who was my accomplice? Practically all these points are discussed by Cicero in dealing with the charge of poisoning in the pro Cluentio. This concludes my observations upon inartificial proofs. I have stated them as briefly as I could.

The second class of proofs are wholly the work of art and consist of matters specially adapted to produce belief. They are, however, as a rule almost entirely neglected or only very lightly touched on by those who, avoiding arguments as rugged and repulsive things, confine themselves to pleasanter regions and, like those who, as poets tell, were bewitched by tasting a magic herb in the land of the Lotus-eaters or by the song of the Sirens into preferring pleasure to safety, follow the empty semblance of renown and are robbed of that victory which is the aim of eloquence.

And yet those other forms of eloquence, which have a more continuous sweep and flow, are employed with a view to assisting and embellishing the arguments and produce the appearance of super inducing a body upon the sinews, on which the whole case rests; thus if it is asserted that some act has been committed under the influence of anger, fear or desire, we may expatiate at some length on the nature of each of these passions. It is by these same methods that we praise, accuse, exaggerate, attenuate, describe, deter, complain, console or exhort.

But such rhetorical devices may be employed in connexion with matters about which there is no doubt or at least which we speak of as admitted facts. Nor would I deny that there is some advantage to be gained by pleasing our audience and a great deal by stirring their emotions. Still, all these devices are more effective, when the judge thanks he has gained a full knowledge of the facts of the case, which we can only give him by argument and by the employment of every other known means of proof.

Before, however, I proceed to classify the various species of artificial proof, I must point out that there are certain features common to all kinds of proof. For there is no question which is not concerned either with things or persons, nor can there be any ground for argument save in connexion with matters concerning things or persons, which may be considered either by themselves or with reference to something else;

while there can be no proof except such as is derived from things consequent or things opposite, which must be sought for either in the time preceding, contemporaneous with or subsequent to the alleged fact, nor can any single thing be proved save by reference to something else which must be greater, less than or equal to it.

As regards arguments, they may be found either in the questions raised by the case, which may be considered by themselves quite apart from any connexion with individual things or persons, or in the case itself, when anything is discovered in it which cannot be arrived at by the light of common reason, but is peculiar to the subject on which judgment has to be given. Further, all proofs fall into three classes, necessary, credible, and not impossible.

Again there are four forms of proof. First, we may argue that, because one thing is, another thing is not; as It is day and therefore not night. Secondly, we may argue that, because one thing is, another thing is; as The sun is risen, thereit is day. Thirdly, it may be argued that because one thing is not, another thing is; as It is not night, therefore it is day. Finally, it may be argued that, because one thing is not, another thing is not; as He is not a reasoning being, therefore he is not a man. These general remarks will suffice by way of introduction and I will now proceed to details.

Every artificial proof consists either of indications, arguments or examples. I am well aware that many consider indications to form part of the arguments. My reasons for distinguishing them are twofold. In the first place indications as a rule come under the head of inartificial proofs: for a bloodstained garment, a shriek, a dark blotch and the like are all evidence analogous to documentary or oral evidence and rumours; they are not discovered by the orator, but are given him with the case itself.

My second reason was that indications, if indubitable, are not arguments, since they leave no room for question, while arguments are only possible in controversial matters. If on the other hand they are doubtful, they are not arguments, but require arguments to support them.

The two first species into which artificial proofs may be divided are, as I have already said, those which involve a conclusion and those which do not. The former are those which cannot be otherwise and are called τεκμήρια, by the Greeks, because they are indications from which there is no getting away. These however seem to me scarcely to come under the rules of art. For where an indication is irrefutable, there can be no dispute as to facts.

This happens whenever there can be no doubt that something is being or has been done, or when it is impossible for it to be or have been done. In such cases there can be no dispute as to the fact. This kind of proof may be considered in connexion with past, present or future time.

For example, a woman who is delivered of a child must have had intercourse with a man, and the reference is to the past. When there is a high wind at sea, there must be waves, and the reference is to the present. When a man has received a wound in the heart, he is bound to die, and the reference is to the future. Nor again can there be a harvest where no seed has been sown, nor can a man be at Rome when he is at Athens, nor have been wounded by a sword when he has no scar. Some have the same force when reversed:

a man who breathes is alive, and a man who is alive breathes. Some again cannot be reversed: because he who walks moves it does not follow that he who moves walks.

So too a woman, who has not been delivered of a child, may have had intercourse with a man, there may be waves without a high wind, and a man may die without having received a wound in the heart. Similarly seed may be sown without a harvest resulting, a man, who was never at Athens, may never have been at Rome, and a man who has a scar may not have received a sword-wound.

There are other indications or εἰκότα, that is probabilities, as the Greeks call them, which do not involve a necessary conclusion. These may not be sufficient in themselves to remove doubt, but may yet be of the greatest value when taken in conjunction with other indications.

The Latin equivalent of the Greek σημεῖον is signum, a sign, though some have called it indicium, an indication, or vestigium, a trace. Such signs or indications enable us to infer that something else has happened; blood for instance may lead us to infer that a murder has taken place. But bloodstains on a garment may be the result of the slaying of a victim at a sacrifice or of bleeding at the nose. Everyone who has a bloodstain on his clothes is not necessarily a murderer.

But although such an indication may not amount to proof in itself, yet it may be produced as evidence in conjunction with other indications, such for instance as the fact that the man with the bloodstain was the enemy of the murdered man, had threatened him previously or was in the same place with him. Add the indication in question to these, and what was previously only a suspicion may become a certainty.

On the other hand there are indications which may be made to serve either party, such as livid spots, swellings which may be regarded as symptoms either of poisoning or of bad health, or a wound in the breast which may be treated as a proof of murder or of suicide. The force of such indications depends on the amount of extraneous support which they receive.

Hermagoras would include among such indications as do not involve a necessary conclusion, an argument such as the following, Atalanta cannot be a virgin, as she has been roaming the woods in the company of young men. If we accept this view, I fear that we shall come to treat all inferences from a fact as indications. None the less such arguments are in practice treated exactly as if they were indications.

Nor do the Areopagites, when they condemned a boy for plucking out the eyes of quails, seem to have had anything else in their mind than the consideration that such conduct was an indication of a perverted character which might prove hurtful to many, if he had been allowed to grow up. So, too, the popularity of Spurius Maelius and Marcus Manlius was regarded as an indication that they were aiming at supreme power.

However, I fear that this line of reasoning will carry us too far. For if it is an indication of adultery that a woman bathes with men, the fact that she revels with young men or even an intimate friendship will also be indications of the same offence. Again depilation, a voluptuous gait, or womanish attire may be regarded as indications of effeminacy and unmanliness by anyone who thinks that such symptoms are the result of an immoral character, just as blood is the result of a wound: for anything, that springs from the matter under investigation and comes to our notice, may properly be called an indication.

Similarly it is also usual to give the names of signs to frequently observed phenomena, such as prognostics of the weather which we may illustrate by the Vergilian

For wind turns Phoebe's face to ruddy gold and

The crow

With full voice, good-for-naught, invites the rain.

If these phenomena are caused by the state of the atmosphere, such an appellation is correct enough.

For if tile moon turns red owing to the wind, her hue is certainly a sign of wind. And if, as the same poet infers, the condensation and rarification of the atmosphere causes that concert of bird-voices of which he speaks, we may agree in regarding it as a sign. We may further note that great things are sometimes indicated by trivial signs, witness the Vergilian crow; that trivial events should be indicated by signs of greater importance is of course no matter for wonder.

I now turn to arguments, the name under which we comprise the ἐνθυμήματα, ἐπιχειρήματα, and ἀποδείξεις of the Greeks, terms which, in spite of their difference, have much the same meaning. For the enthymeme (which we translate by commentun or commentatio, there being no alternative, though we should be wiser to use the Greek name) has three meanings: firstly it means anything conceived in the mind (this is not however the sense of which I am now speaking);

secondly it signifies a proposition with a reason, and thirdly a conclusion of an argument drawn either from denial of consequents or from incompatibles; although there is some controversy on this point. For there are some who style a conclusion from consequents an epicheireme, while it will be found that the majority hold the view that an epicheireme is a conclusion from incompatibles: wherefore Cornificius styles it a contrarium or argument from contraries. Some again call it a rhetorical syllogism, others an incomplete syllogism, because its parts are not so clearly defined or of the same number as those of the regular syllogism, since such precision is not specially required by the orator. Valgius translates ἐπιχείρημα by aggressio, that is an attempt. It would however, in my opinion, be truer to say that it is not our handling of the subject, but the thing itself which we attempt which should be called an ἐπιχείρημα, that is to say the argument by which we try to prove something and which, even if it has not yet been stated in so many words, has been clearly conceived by the mind.

Others regard it not as an attempted or imperfect proof, but a complete proof, falling under the most special species of proof; consequently, according to its proper and most generally received appellation it must be understood in the sense of a definite conception of some thought consisting of at least three parts. Some call an ἐπιχείρημα a reason, but Cicero is more correct in calling it a reasoning, although he too seems to derive this name from the syllogism rather than anything else; for he calls the syllogistic basis a ratiocinative basis and quotes philosophers to support him. And since there is a certain kinship between a syllogism and an epicheireme, it may be thought that he was justified in his use of the latter term.

An ἀπόδεξις is a clear proof; hence the use of the term γραμμικαὶ ἀποδείξεις, linear demonstrations by the geometricians. Caecilius holds that it differs from the epicheireme solely in the kind of conclusion arrived at and that an apodeixis is simply an incomplete epicheireme for the same reason that we said an enthymeme differed from a syllogism. For an epicheireme is also part of a syllogism. Some think that an apodeixis is portion of an epicheireme, namely the part containing the proof.

But all authorities, however much they may differ on other points, define both in the same way, in so far as they call both a method of proving what is not certain by means of what is certain. Indeed this is the nature of all arguments, for what is certain cannot be proved by what is uncertain. To all these forms of argument the Greeks give the name of πίστεις, a term which, though the literal translation is fides a warrant of credibility, is best translated by probatio proof. But argument has several other meanings.

For the plots of plays composed for acting in the theatre are called arguments, while Pedianus, when explaining the themes of the speeches of Cicero, says The argument is as follows. Cicero himself in writing to Brutus says, Fearing that I might transfer something from that source to my Cato, although the argument is quite different. It is thus clear that all subjects for writing are so called.

Nor is this to be wondered at, since the term is also in common use among artists; hence the Vergilian phrase A mighty argument. Again a work which deals with a number of different themes is called rich in argument. But the sense with which we are now concerned is that which provides proof Celsus indeed treats the terms, proof, indication, credibility, attempt, simply as different names for the same things, in which, to my thinking, he betrays a certain confusion of thought.

For proof and credibility are not merely the result of logical processes, but may equally be secured by inartificial arguments. Now I have already distinguished signs or, as he prefers to call them, indications from arguments. Consequently, since an argument is a process of reasoning which provides proof and enables one thing to be inferred from another and confirms facts which are uncertain by reference to facts which are certain, there must needs be something in every case which requires no proof.

Otherwise there will be nothing by which we can prove anything; there must be something which either is or is believed to be true, by means of which doubtful things may be rendered credible. We may regard as certainties, first, those things which we perceive by the senses, things for instance that we hear or see, such as signs or indications; secondly, those things about which there is general agreement, such as the existence of the gods or the duty of loving one's parents;

thirdly, those things which are established by law or have passed into current usage, if not throughout the whole world, at any rate in the nation or state where the case is being pleaded—there are for instance many rights which rest not on law, but on custom; finally, there are the things which are admitted by either party, and whatever has already been proved or is not disputed by our adversary.

Thus for instance it may be argued that since the world is governed by providence, the state should similarly be governed by some controlling power: it follows that the state must be so governed, once it is clear that the world is governed by providence.

Further, the man who is to handle arguments correctly must know the nature and meaning of everything and their usual effects. For it is thus that we arrive at probable arguments or εἰκότα as the Greeks call them.

With regard to credibility there are three degrees. First, the highest, based on what usually happens, as for instance the assumption that children are loved by their parents. Secondly, there is the highly probable, as for instance the assumption that a man in the enjoyment of good health will probably live till to-morrow. The third degree is found where there is nothing absolutely against an assumption, such as that a theft committed in a house was the work of one of the household.

Consequently Aristotle in the second book of his Rhetoric has made a careful examination of all that commonly happens to things and persons, and what things and persons are naturally adverse or friendly to other things or persons, as for instance, what is the natural result of wealth or ambition or superstition, what meets with the approval of good men, what is the object of a soldier's or a farmer's desires, and by what means everything is sought or shunned.

For my part I do not propose to pursue this subject. It is not merely a long, but an impossible or rather an infinite task; moreover it is within the compass of the common understanding of mankind. If, however, anyone wishes to pursue the subject, I have indicated where he may apply.

But all credibility, and it is with credibility that the great majority of arguments are concerned, turns on questions such as the following: whether it is credible that a father has been killed by his son, or that a father has committed incest with his daughter, or to take questions of an opposite character, whether it is credible that a stepmother has poisoned her stepchild, or that a man of luxurious life has committed adultery; or again whether a crime has been openly committed, or false evidence given for a small bribe, since each of these crimes is the result of a special cast of character as a rule, though not always; if it were always so, there would be no room for doubt, and no argument.

Let us now turn to consider the places of arguments, although some hold that they are identical with the topics which I have already discussed above. But I do not use this term in its usual acceptance, namely, commonplaces directed against luxury, adultery, and the like, but in the sense of the secret places where arguments reside, and from which they must be drawn forth.

For just as all kinds of produce are not provided by every country, and as you will not succeed in finding a particular bird or beast, if you are ignorant of the localities where it has its usual haunts or birthplace, as even the various kinds of fish flourish in different surroundings, some preferring a smooth and others a rocky bottom, and are found on different shores and in divers regions (you will for instance never catch a sturgeon or wrasse in Italian waters), so not every kind of argument can be derived from every circumstance, and consequently our search requires discrimination.

Otherwise we shall fall into serious error, and after wasting our labour through lack of method we shall fail to discover the argument which we desire, unless assisted by some happy chance. But if we know the circumstances which give rise to each kind of argument, we shall easily see, when we come to a particular place, what arguments it contains.

Firstly, then, arguments may be drawn from persons; for, as I have already said, all arguments fall into two classes, those concerned with things and those concerned with persons, since causes, time, place, occasion, instruments, means and the like are all accidents of things. I have no intention of tracing all the accidents of persons, as many have done, but shall confine myself to those from which arguments may be drawn.

Such are birth, for persons are generally regarded as having some resemblance to their parents and ancestors, a resemblance which sometimes leads to their living disgracefully or honourably, as the case may be; then there is nationality, for races have their own character, and the same action is not probable in the case of a barbarian, a Roman and a Greek;

country is another, for there is a like diversity in the laws, institutions and opinions of different states; sex, since for example a man is more likely to commit a robbery, a woman to poison; age, since different actions suit different ages; education and training, since it makes a great difference who were the instructors and what the method of instruction in each individual case;

bodily constitution, for beauty is often introduced as an argument for lust, strength as an argument for insolence, and their opposites for opposite conduct; fortune, since the same acts are not to be expected from rich and poor, or from one who is surrounded by troops of relations, friends or clients and one who lacks all these advantages; condition, too, is important, for it makes a great difference whether a man be famous or obscure, a magistrate or a private individual, a father or a son, a citizen or a foreigner, a free man or a slave, married or unmarried, a father or childless.

Nor must we pass by natural disposition, for avarice, anger, pity, cruelty, severity and the like may often be adduced to prove the credibility or the reverse of a given act; it is for instance often asked whether a man's way of living be luxurious, frugal or parsimonious. Then there is occupation, since a rustic, a lawyer, a man of business, a soldier, a sailor, a doctor all perform very different actions.

We must also consider the personal ambitions of individuals, for instance whether they wish to be thought rich or eloquent, just or powerful. Past life and previous utterances are also a subject for investigation, since we are in the habit of inferring the present from the past. To these some add passion, by which they mean some temporary emotion such as anger or fear; they also add design, which may refer to the past, present or future. These latter, however, although accidents of persons, should be referred to that class of arguments which we draw from causes, as also should certain dispositions of mind, for example when we inquire whether one man is the friend or enemy of another.

Names also are treated as accidents of persons; this is perfectly true, but names are rarely food for argument, unless indeed they have been given for some special reasons, such as the titles of Wise, Great, Pious, or unless the name has suggested some special thought to the bearer. Lentulus for instance had the idea of conspiracy suggested to him by the fact that according to the Sibylline books and the Responses of the soothsayers the tyranny was promised to three members of the Cornelian family, and he considered himself to be the third in succession to Sulla and Cinna, since he too bore the name Cornelius.

On tile other hand the conceit employed by Euripides where he makes Eteocles taunt his brother Polynices on the ground that his name is evidence of character, is feeble in the extreme. Still a name will often provide the subject for a jest, witness the frequent jests of Cicero on the name of Verres. Such, then, and the like are the accidents of persons. It is impossible to deal with them all either here or in other portions of this work, and I must content myself with pointing out the lines on which further enquiry should proceed.

I now pass to things: of these actions are the most nearly connected with persons and must therefore be treated first. In regard to every action the question arises either Why or Where or When or How or By what means the action is performed.

Consequently arguments are drawn from the causes of past or future actions. The matter of these causes, by some called ὕλη, by others δύναμις, falls into two genera, which are each divided into four species. For the motive for any action is as a rule concerned with the acquisition, increase, preservation and use of things that are good or with the avoidance, diminution, endurance of things that are evil or with escape there from. All these considerations carry great weight in deliberative oratory as well.

But right actions have right motives, while evil actions are the result of false opinions, which originate in the things which men believe to be good or evil. Hence spring errors and evil passions such as anger, hatred, envy, desire, hope, ambition, audacity, fear and others of a similar kind. To these accidental circumstances may often be added, such as drunkenness or ignorance, which serve sometimes to excuse and sometimes to prove a charge, as for instance when a man is said to have killed one person while lying in wait for another. Further, motives are often discussed not merely to convict the accused of the offence with which he is charged, but also to defend him when he contends that his action was right, that is to say proceeded from an honourable motive, a theme of which I have spoken more fully in the third book.

Questions of definition are also at times intimately connected with motives. Is a man a tyrannicide if he kills a tyrant by whom he has been detected in the act of adultery? Or is lie guilty of sacrilege who tore down arms dedicated in a temple to enable him to drive the enemy from the city?

Arguments are also drawn from place. With a view to proving our facts we consider such questions as whether a place is hilly or level, near the coast or inland, planted or uncultivated, crowded or deserted, near or far, suitable for carrying out a given design or the reverse. This is a topic which is treated most carefully by Cicero in his pro Milone.

These points and the like generally refer to questions of fact, but occasionally to questions of law as well. For we may ask whether a place is public or private, sacred or profane, our own or another's, just as where persons are concerned we ask whether a man is a magistrate, a father, a foreigner.

Hence arise such questions as the following. You have stolen private money, but since you stole it from a temple, it is not theft but sacrilege. You have killed adulterers, an act permitted by law, but since the act was done in a brothel, it is murder. "You have committed an assault, but since the object of your assault was a magistrate, the crime is lèse-majesté.

Similarly it may be urged in defence, The act was lawful, because I was a father, a magistrate. But such points afford matter for argument when there is a controversy as to the facts, and matter for enquiry when the dispute turns on a point of law. Place also frequently affects the quality of an action, for the same action is not always lawful or seemly under all circumstances, while it makes considerable difference in what state the enquiry is taking place, for they differ both in custom and law.

Further arguments drawn from place may serve to secure approval or the reverse. Ajax for instance in Ovid says:—

What! do we plead our cause before the ships?

And is Ulysses there preferred to me?

Again one of the many charges brought against Milo was that he killed Clodius on the monument of his ancestors.

Such arguments may also carry weight in deliberative oratory, as may those drawn from time, which I shall now proceed to discuss. Time may, as I have said elsewhere, be understood in two different senses, general and special. The first sense is seen in words and phrases such as now, formerly, in the reign of Alexander, in the days of the siege of Troy, and whenever we speak of past, present or future. The second sense occurs when we speak either of definite periods of time such as in summer, in winter, by night, by day, or of fortuitous periods such as in time of pestilence, in time of war, during a banquet.

Certain Latin writers have thought it a sufficient distinction to call the general sense time, and the special times. In both senses time is of importance in advisory speeches and demonstrative oratory, but not so frequently as in forensic.

For questions of law turn on time, while it also determines the quality of actions and is of great importance in questions of fact; for instance, occasionally it provides irrefragable proofs, which may be illustrated by a case which I have already cited, when one of the signatories to a document has died before the day on which it was signed, or when a person is accused of the commission of some crime, although he was only an infant at the time or not yet born.

Further, all kinds of arguments may easily be drawn either from facts previous to a certain act, or contemporary or subsequent. As regards antecedent facts the following example will illustrate my meaning; You threatened to kill him, you went out by night, you started before him. Motives of actions may also belong to past time.

Some writers have shown themselves over-subtle in their classification of the second class of circumstances, making a sound was heard an example of circumstances combined with an act and a shout was raised an instance of circumstances attached to an act. As regards subsequent circumstances I may cite accusations such as You hid yourself, you fled, livid spots and swellings appeared on the corpse. The counsel for the defence will employ the same divisions of time to discredit the charge which is brought against him.

In these considerations are included everything in connexion with words and deeds, but in two distinct ways. For some things are done because something else is like to follow, and others because something else has previously been done, as for instance, when the husband of a beautiful woman is accused of having acted as a procurer on the ground that he bought her after she was found guilty of adultery, or when a debauched character is accused of parricide on the ground that he said to his father You have rebuked me for the last time. For in the former case the accused is not a procurer because he bought the woman, but bought her because he was a procurer, while in the latter the accused is not a parricide because he used these words, but used them because lie intended to kill his father.

With regard to accidental circumstances, which also provide matter for arguments, these clearly belong to subsequent time, but are distinguished by a certain special quality, as for instance if I should say, Scipio was a better general than Hannibal, for he conquered Hannibal; He was a good pilot, for he was never shipwrecked; He was a good farmer, for he gathered in huge harvests; or referring to bad qualities, He was a prodigal, for he squandered his patrimony; His life was disgraceful, for he was hated by all.

We must also consider the resources possessed by the parties concerned, more especially when dealing with questions of fact; for it is more credible that a smaller number of persons were killed by a larger, a weaker party by a stronger, sleepers by men that were wide awake, the unsuspecting by the well-prepared, while the converse arguments may be used to prove the opposite.

Such considerations arise both in deliberative and forensic oratory: in the latter they occur in relation to two questions, namely, whether some given person had the will, and whether lie had the power to do the deed; for hope will often create the will to act. Hence the well-known inference in Cicero: Clodius lay in wait for Milo, not Milo for Clodius, for Clodius had a retinue of sturdy slaves, while Milo was with a party of women; Clodius was mounted, Milo in a carriage, Clodius lightly clad, Milo hampered by a cloak.

With resources we may couple instruments, which form part of resources and means. But sometimes instruments will provide us with indications as well, as for instance if we find a javelin sticking in a dead body.

To these we may add manner, the Greek τρόπος, in regard to which we ask how a thing was done. Manner is concerned sometimes with quality and the letter of the law (we may for instance argue that it was unlawful to kill an adulterer by poison), sometimes with questions of fact, as for example if I argue that an act was committed with a good intent and therefore openly, or with a bad intent and therefore treacherously, by night, in a lonely place.

In all cases, however, in which we enquire into the nature and meaning of an act, and which can be considered by themselves apart from all considerations of persons and all else that gives rise to the actual cause, there are clearly three points to which we must give attention, namely Whether it is, What it is and Of what kind it is. But as there are certain places of argument which are common to all three questions, this triple division is impracticable and we must therefore consider these questions rather in connexion with those places in which they most naturally arise.

Arguments, then, may be drawn from definition, sometimes called finitio and sometimes finis. Definition is of two kinds. We may ask whether a particular quality is a virtue or make a definition precede and ask what is the nature of a virtue. Such a definition is either stated in general terms, such as Rhetoric is the science of speaking well, or in detail, such as Rhetoric is the science of correct conception, arrangement and utterance, coupled with a retentive memory and a dignified delivery. Further, we may define a word by giving its content as in the preceding instances, or by etymology: we may for instance explain assiduus by deriving it from as and do, locuples by deriving it from copia locorum, pecuniosus from copiapecorum. Genus, species, difference and property seem more especially to afford scope for definition, for we derive arguments from all of these.

Genus is of little use when we desire to prove a species, but of great value for its elimination. A tree is not necessarily a plane tree, but that which is not a tree is certainly not a plane tree; again, a virtue is not necessarily the virtue of justice, but that which is not a virtue is certainly not justice. We must proceed from the genus to the ultimate species; for example, to say that man is an animal will not suffice; for animal merely gives us the genus: nor yet will the addition of the words subject to death be adequate; for although this epithet gives us a species, it is common to other animals as well. If, however, we define man as a rational animal, we need nothing further to make our meaning clear.

On the other hand species will give us clear proof of genus, but is of little service for its elimination. For example, justice is always a virtue, but that which is not justice may still be a virtue, such as fortitude, constancy or self-control. Genus therefore cannot be eliminated by species unless all the species included in the genus be eliminated, as for instance in the following sentence: That which is neither rational nor mortal nor an animal is not a man.

To these they add property and difference. Properties serve to establish definitions, differences to overthrow them. A property is that which happens to one particular object and that alone; speech and laughter for instance are properties of man. Or it may be something specially belonging to an object, but not to it alone; heating for instance is a property of fire. The same thing may also have a number of properties: light and heat are both properties of fire. Consequently, the omission of any property in a definition will impair it, but the introduction of a property, whatever it may be, will not necessarily establish a definition.

We have, however, often to consider what is a property of some given object; for example, if it should be asserted, on the ground of etymology, that the peculiar property of a tyrannicide is to kill tyrants, we should deny it: for an executioner is not ipso facto a tyrannicide, if he executes a tyrant who has been delivered to him for the purpose, nor again is he a tyrannicide who kills a tyrant unwittingly or against his will.

What is not a property will be a difference: it is, for instance, one thing to be a slave, and another to be in a state of servitude; hence the distinction raised in connexion with persons assigned to their creditors for debt: A slave, if he is manumitted becomes a freedman, but this is not the case with one who is assigned. There are also other points of difference which are dealt with elsewhere.

Again, the term difference is applied in cases when the genus is divided into species and one species is subdivided. Animal, for instance, is a genus, mortal a species, while terrestrial or biped is a difference: for they are not actually properties, but serve to show the difference between such animals and quadrupeds or creatures of the sea. This distinction, however, comes under the province not so much of argument as of exact definition. Cicero separates genus and species, which latter he calls form, from definition and includes them under relation. For example, if a person to whom another man has left all his silver should claim all his silver money as well, he would base his claim upon genus; on the other hand if when a legacy has been left to a married woman holding the position of materfamilias, it should be maintained that the legacy is not due to a woman who never came into the power of her husband, the argument is based on species, since there are two kinds of marriage. Cicero further shows that definition is assisted by division, which he distinguishes from partition, making the latter the dissection of a whole into its parts and the former the division of a genus into its forms or species. The number of parts he regards as being uncertain, as for instance the elements of which a state consists; the forms or species are, however, certain, as for instance the number of forms of government, which we are told are three, democracy, oligarchy, and monarchy. It is true that he does not use these illustrations, since, as he was writing to Trebatius, he preferred to draw his examples from law. I have chosen my illustrations as being more obvious. Properties have relation to questions of fact as well; for instance, it is the property of a good man to act rightly, of an angry man to be violent in speech or action, and consequently we believe that such acts are committed by persons of the appropriate character, or not committed by persons of inappropriate character. For just as certain persons possess certain qualities, so certain others do not possess certain qualities, and the argument is of precisely the same nature, though from opposite premises.

In a similar way division is valuable both for proof and refutation. For proof, it is sometimes enough to establish one thing. To be a citizen, a man must either have been born or made such. For refutation, both points must be disproved: he was neither born nor made a citizen.

This may be done in many ways, and constitutes a form of argument by elimination, whereby we show sometimes that the whole is false, sometimes that only that which remains alter the process of elimination is true. An example of the first of these two cases would be: You say that you lent him money. Either you possessed it yourself, received it from another, found it or stole it. If you did not possess it, receive it from another, find or steal it, you did not lend it to him.

The residue after elimination is shown to be true as follows: This slave whom you claim was either born in your house or bought or given you or left you by will or captured from the enemy or belongs to another. By the elimination of the previous suppositions he is shown to belong to another. This form of argument is risky and must be employed with care; for if, in setting forth the alternatives, we chance to omit one, our whole case will fail, and our audience will be moved to laughter. It is safer to do what Cicero does in the pro Caecina, when he asks, If this is not the point at issue, what is? For thus all other points are eliminated at one swoop. Or again two contrary propositions may be advanced, either of which if established would suffice to prove the case. Take the following example from Cicero: There can be no one so hostile to Cluentius as not to grant me one thing: if it be a fact that the verdict then given was the result of bribery, the bribes must have proceeded either from Habitus or Oppianicus: if I show that they did not proceed from Habitus I prove that they proceeded from Oppianicus: if I demonstrate that they were given by Oppianicus, I clear Habitus.

Or we may give our opponent the choice between two alternatives of which one must necessarily be true, and as a result, whichever he chooses, lie will damage his case. Cicero does this in the pro Oppio:

Was the weapon snatched from his hands when he had attacked Cotta, or when he was trying to commit suicide? and in the pro Vareno:

You have a choice between two alternatives: either you must show that the choice of this route by Varenus was due to chance or that it was the result of this man's persuasion and inducement. He then shows that either admission tells against his opponent. Sometimes again, two propositions are stated of such a character that the admission of either involves the same conclusion, as in the sentence, We must philosophise, even though we ought not, or as in the common dilemma, What is the use of a figure, if its meaning is clear? And what is its use, if it is unintelligible? or, He who is capable of enduring pain will lie if tortured, and so will he who cannot endure pain.

As there are three divisions of time, so the order of events falls into three stages. For everything has a beginning, growth and consummation, as for instance a quarrel, blows, murder. Thus arise arguments which lend each other mutual support; for the conclusion is inferred from the beginnings, as in the following case: I cannot expect a purple-striped toga, when I see that the beginning of the web is black; or the beginning may be inferred from the conclusion: for instance the fact that Sulla resigned the dictatorship is an argument that Sulla did not take up arms with the intention of establishing a tyranny.

Similarly from the growth of a situation we may infer either its beginning or its end, not only in questions of fact but as regards points of equity, such as whether the conclusion is referable to the beginning, that is, Should the man that began the quarrel be regarded as guilty of the bloodshed with which it ended? Arguments are also drawn from similarities:

If self-control is a virtue, abstinence is also a virtue. If a guardian should be required to be faithful to his trust, so should an agent. To this class belongs the type of argument called ἐπαγωγή by the Greeks, induction by Cicero. Or arguments may be drawn from unlikes: It does not follow that if joy is a good thing, pleasure also is a good thing: It does not follow that what applies to the case of a woman applies also to the case of a ward. Or from contraries: Frugality is a good thing, since luxury is an evil thing: If war is the cause of ill, peace will prove a remedy: If he who does harm unwittingly deserves pardon, he who does good unwittingly does not deserve a reward.

Or from contradictions: He who is wise is not a fool. Or from consequences necessary or probable: If justice is a good thing, we must give right judgment: If breach of faith is a bad thing, we must not deceive. And such arguments may also be reversed. Similar to these are the following arguments, which must therefore be classed under this same head, since it is to this that they naturally belong: A man has not lost what he never had: A man does not wittingly injure him whom he loves: If one man has appointed another as his heir, he regarded, still regards and will continue to regard him with affection. However, such arguments, being incontrovertible, are of the nature of absolute indications.

These, however, I call consequent or ἀκόλουθα goodness, for instance, is consequent on wisdom: while in regard to things which merely have taken place afterwards or will take place I use the term insequent or παρεπόμενα, though I do not regard the question of terminology as important. Give them any name you please, as long as the meaning is clear and it is shown that the one depends on time, the other on the nature of things.

I have therefore no hesitation in calling the following forms of argument also consequential, although they argue from the past to the future: some however divide them into two classes, those concerned with action, as in the pro Oppio, How could he detain against their will those whom he was unable to take to the province against their will? and those concerned with time, as in the Verrines,

If the first of January puts an end to the authority of the praetor's edict, why should the commencement of its authority not likewise date from the first of January?

Both these instances are of such a nature that the argument is reversible. For it is a necessary consequence that those who could not be taken to the province against their will could not be retained against their will.

So too I feel clear that we should rank as consequential arguments those derived from facts which lend each other mutual support and are by some regarded as forming a separate kind of argument, which they call ἐκ τῶν πρὸς ἄλληλα, arguments from things mutually related, while Cicero styles them arguments drawn from things to which the same line of reasoning applies; take the following example: If it is honourable for the Rhodians to let out their harbour dues, it is honourable likewise for Hermocreon to take the contract, or What it is honourable to learn, it is also honourable to teach. Such also is the fine sentence of Domitius Afer, which has the same effect, though it is not identical in form: I accused, you condemned. Arguments which prove the same thing from opposites are also mutually consequential; for instance, we may argue that he who says that the world was created thereby implies that it is suffering decay, since this is the property of all created things.

There is another very similar form of argument, which consists in the inference of facts from their efficient causes or the reverse, a process known as argument from causes. The conclusion is sometimes necessary, sometimes generally without being necessarily true. For instance, a body casts a shadow in the light, and the shadow wherever it falls indicates the presence of a body.

There are other conclusions which, as I have said, are not necessary, whether as regards both cause and effect or only one of the two. For instance, the sun colours the skin, but not everyone that is coloured receives that colour from the sun; a journey makes the traveller dusty, but every journey does not produce dust, nor is everyone that is dusty just come from a journey.

As examples of necessary conclusions on the other hand I may cite the following: If wisdom makes a man good, a good man must needs be wise; and again, It is the part of a good man to act honourably, of a bad man to act dishonourably, or Those who act honourably are considered good, those who act dishonourably are considered bad men. In these cases the conclusion is correct. On the other hand, though exercise generally makes the body robust, not everyone who is robust is given to exercise, nor is everyone that is addicted to exercise robust. Nor again, because courage prevents our fearing death, is every man who has no fear of death to be regarded as a brave man; nor is the sun useless to man because it sometimes gives him a headache.

Arguments such as the following belong in the main to the hortative department of oratory:— Virtue brings renown, therefore it should be pursued; but the pursuit of pleasure brings ill-repute, therefore it should be shunned. But the warning that we should not necessarily search for the originating cause is just: an example of such error is provided by the speech of Medea beginning

Ah! would that never there in Pelion's grove, as though her misery or guilt were due to the fact that there

The beams of fir had fallen to the ground;

or I might cite the words addressed by Philoctetes to Paris,

Hadst thou been other than thou art, then I

Had ne'er been plunged in woe.

By tracing back causes on lines such as these we may arrive anywhere.

But for the fact that Cicero has done so, I should regard it as absurd to add to these what is styled the conjugate argument, such as Those who perform a just act, act justly, a self-evident fact requiring no proof; or again, Every man has a common right to send his cattle to graze in a common pasture.

Some call these arguments derived from causes or efficients by the Greek name ἐκβάσεις that is, results; for in such cases the only point considered is how one thing results from another. Those arguments which prove the lesser from the greater or the greater from the less or equals from equals are styled apposite or comparative.

A conjecture as to a fact is confirmed by argument from something greater in the following sentence: If a man commit sacrilege, he will also commit theft; from something less, in a sentence such as He who lies easily and openly will commit perjury; from something equal in a sentence such as He who has taken a bribe to give a false verdict will take a bribe to give false witness.

Points of law may be proved in a similar manner; from something greater, as in the sentence If it is lawful to kill an adulterer, it is lawful to scourge him; from something less, If it is lawful to kill a man attempting theft by night, how much more lawful is it to kill one who attempts robbery with violence; from something equal, The penalty which is just in the case of parricide is also just in the case of matricide. In all these cases we follow the syllogistic method.

The following type of argument on the other hand is more serviceable in questions turning on definition or quality. If strength is good for the body, health is no less good. If theft is a crime, sacrilege is a greater crime. If abstinence is a virtue, so is self-control. If the world is governed by providence, the state also requires a government. If a house cannot be built without a plan, what of a whole city? If naval stores require careful supervision, so also do arms.

I am content to treat this type of argument as a genus without going further; others however divide it into species. For we may argue from several things to one or from one thing to several; hence arguments such as What has happened once may happen often. We may also argue from a part to a whole, from genus to species, from that which contains to that which is contained, from the difficult to the easy, from the remote to the near, and similarly from the opposites of all these to their opposites.

Now all these arguments deal with the greater or the less or else with things that are equal, and if we follow up such fine distinctions, there will be no limit to our division into species. For the comparison of things is infinite; things may be more pleasant, more serious, more necessary, more honourable, more useful. I say no more for fear of falling into that very garrulity which I deprecate.

The number of examples of these arguments which I might quote is likewise infinite, but I will only deal with a very few. As an example of argument from something greater take the following example from the pro Caecina

Shall we suppose that that which alarms whole armies caused no alarm to a peaceful company of lawyers? As an instance of argument from something easier, take this passage from the speech against Clodius and Curio:

Consider whether it would have been easy for you to secure the praetorship, when he in whose favour you withdrew failed to secure election?

The following provides an example of argument from something more difficult: I beg you, Tubero, to remark that I, who do not hesitate to speak of my own deed, venture to speak of that performed by Ligarius; and again, Has not Ligarius reason for hope, when I am permitted to intercede with you for another? For an argument drawn from something less take this passage from the pro Caecinaa: Really! Is the knowledge that the men were armed sufficient to prove that violence was offered, and the fact that he fell into their hands insufficient? Well, then, to give a brief summary of the whole question, arguments are drawn from persons, causes, place and time (which latter we have divided into preceding, contemporary and subsequent), from resources (under which we include instruments), from manner (that is, how a thing has been done), from definition, genus, species, difference, property, elimination, division, beginnings, increase, consummation, likes, unlikes, contradictions, consequents, efficients, effects, results, and comparison, which is subdivided into several species.

I think I should also add that arguments are drawn not merely from admitted facts, but from fictitious suppositions, which the Greeks style καθ᾽ ὑπόθεσιν and that this latter type of argument falls into all the same divisions as those which I have mentioned above, since there may be as many species of fictitious arguments as there are of true arguments.

When I speak of fictitious arguments I mean the proposition of something which, if true, would either solve a problem or contribute to its solution, and secondly the demonstration of the similarity of our hypothesis to the case under consideration. To make this the more readily intelligible to youths who have not yet left school, I will first of all illustrate it by examples of a kind familiar to the young.

There is a law to the effect that the man who refuses to support his parents is liable to imprisonment. A certain man fails to support his parents and none the less objects to going to prison. He advances the hypothesis that he would be exempt from such a penalty if he were a soldier, an infant. or if he were absent from home on the service of the state. Again in the case where a hero is allowed to choose his reward we might introduce the hypotheses of his desiring to make himself a tyrant or to overthrow the temples of the gods.

Such arguments are specially useful when we are arguing against the letter of the law, and are thus employed by Cicero in the pro Caecina: [The interdict contains the words,] ' whence you or your household or your agent had driven him.' If your steward alone had driven me out, [it would not, I suppose, be your household but a member of your household that had driven me out].... If indeed you owned no slave except the one who drove me out, [you would cry, 'If I possess a household at all, I admit that my household drove you out']. Many other examples might be quoted from the same work.

But fictitious suppositions are also exceedingly useful when we are concerned with the quality of an act: If Catiline could try this case assisted by a jury composed of those scoundrels whom he led out with him he would condemn Lucius Murena. It is useful also for amplification: If this had happened to you during dinner in the midst of your deep potations; or again, If the state could speak.

Such in the main are the usual topics of proof as specified by teachers of rhetoric, but it is not sufficient to classify them generically in our instructions, since from each of them there arises an infinite number of arguments, while it is in the very nature of things impossible to deal with all their individual species. Those who have attempted to perform this latter task have exposed themselves in equal degree to two disadvantages, saying too much and yet failing to cover the whole ground.

Consequently the majority of students, finding themselves lost in an inextricable maze, have abandoned all individual effort, including even that which their own wits might have placed within their power, as though they were fettered by certain rigid laws, and keeping their eyes fixed upon their master have ceased to follow the guidance of nature.

But as it is not in itself sufficient to know that all proofs are drawn either from persons or things, because each of these groups is subdivided into a number of different heads so he who has learned that arguments must be drawn from antecedent, contemporary or subsequent facts will not be sufficiently instructed in the knowledge of the method of handling arguments to understand what arguments are to be drawn from the circumstances of each particular case;

especially as the majority of proofs are to be found in the special circumstances of individual cases and have no connexion with any other dispute, and therefore while they are the strongest, are also the least obvious, since, whereas we derive what is common to all cases from general rules, we have to discover for ourselves whatever is peculiar to the case which we have in hand.

This type of argument may reasonably be described as drawn from circumstances, there being no other word to express the Greek περίστασις or from those things which are peculiar to any given case. For instance, in the case of the priest who having committed adultery desired to save his own life by means of the law which gave him the power of saving one life, the appropriate argument to employ against him would run as follows: You would save more than one guilty person, since, if you were discharged, it would not be lawful to put the adulteress to death. For such an argument follows from the law forbidding the execution of the adulteress apart from the adulterer.

Again, take the case falling under the law which lays down that bankers may pay only half of what they owe, while permitted to recover the whole of what they are owed. One banker requires payment of the whole sum owed him by another banker. The appropriate argument supplied by the subject to the creditor is that there was special reason for the insertion of the clause sanctioning the recovery of the whole of a debt by a banker, since there was no need of such a law as against others, inasmuch as all have the right to recover the whole of a debt from any save a banker.

But while some fresh considerations are bound to present themselves in every kind of subject, this is more especially the case in questions turning on the letter of the law, since not merely individual words, but still more whole phrases are frequently ambiguous.

And these considerations must vary according to the complexity of laws and other documents, whether they are in agreement or contradictory, since fact throws light on fact and law on law as in the following argument: I owed you no money: you never summoned me for debt, you took no interest from me, nay, you actually borrowed money from me. It is laid down by law that he who refuses to defend his father when accused of treason thereby loses his right to inherit. A son denies that he is liable to this penalty unless his father is acquitted. How does he support this contention? There is another law to the effect that a man found guilty of treason shall be banished and his advocate with him.

Cicero in the pro Cluentio says that Publius Popilius and Tiberius Gutta were not condemned for receiving bribes to give a false verdict, but for attempting to bribe the jury. What is his argument in support of this view? That their accusers, who were themselves found guilty of bribing the jury, were restored in accordance with law after winning their case.

But the consideration as to what argument should be put forward requires no less care than the consideration of the manner in which we are to prove that which we have put forward. Indeed in this connexion invention, if not the most important, is certainly the first consideration. For, just as weapons are superfluous for one who does not know what his target is, so too arguments are useless, unless you see in advance to what they are to be applied. This is a task for which no formal rules can be laid down.

Consequently, though a number of orators, who have studied the same rules, will use similar kinds of arguments, one will discover a greater number of arguments to suit his case than another. Let us take as an example a controversial theme involving problems that have little in common with other cases.

When Alexander destroyed Thebes, he found documents showing that the Thebans had lent a hundred talents to the Thessalians. These documents he presented to the Thessalians as a reward for the assistance they had given him in the campaign. Subsequently the Thebans, after the restoration of their city by Cassander, demanded that the Thessalians should repay the money. The case is tried before the Amphictyonic council. It is admitted that the Thebans lent the money and were not repaid.

The whole dispute turns on the allegation that Alexander had excused the Thessalians from payment of the debt. It is also admitted that the Thessalians had received no money from Alexander. The question is therefore whether his gift is equivalent to his having given them money.

What use will formal topics of argument be in such a case, unless I first convince myself that the gift of Alexander made no difference, that he had not the power to make it, and that he did not make it? The opening of the Thebans' plea presents no difficulty and is likely to win the approval of the judges, since they are seeking to recover by right what was taken from them by force. But out of this point arises a violent controversy as to the right of war, since the Thessalians urge that kingdoms and peoples and the frontiers of nations and cities depend upon these rights.

To meet this argument it is necessary to discover in what respect this case differs from others which are concerned with property that has fallen into the hands of the victor: the difficulty moreover lies not so much in the proof as in the way it should be put forward. We may begin by stating that the rights of war do not hold good in any matter which can be brought before a court of justice, and that what is taken by force of arms can only be retained by force of arms, and consequently, wherever the rights of war hold good, there is no room for the functions of a judge, while on the contrary where the functions of the judge come into play, the rights of war cease to have any force.

The reason why it is necessary to discover this principle is to enable us to bring the following argument into play: that prisoners of war are free on returning to their native land just because the gains of war cannot be retained except by the exercise of the same violence by which they were acquired. Another peculiar feature of the case is that it is tried before the Amphictyonic council, and you will remember that we have to employ different methods in pleading a case before the centumviral court and before an arbitrator, though the problems of the cases may be identical.

Secondly we may urge that the right to refuse payment could not have been conferred by the victor because he possesses only what he holds, but a right, being incorporeal, cannot be grasped by the hand. It is more difficult to discover this principle than, once discovered, to defend it with arguments such as that the position of an heir and a conqueror are fundamentally different, since right passes to the one and property to the other.

It is further an argument peculiar to the subject matter of the case that the right over a public debt could not have passed to the victor, because the repayment of a sum of money lent by a whole people is due to them all, and as long as any single one of them survives, he is creditor for the whole amount: but the Thebans were never all of them to a man in Alexander's power.

The force of this argument resides in the fact that it is not based on any external support, but holds good in itself. Proceeding to the third line of argument we may note that the first portion of it is of a more ordinary type, namely that the right to repayment is not based on the actual document, a plea which can be supported by many arguments. Doubt may also be thrown on Alexander's purpose: did he intend to honour them or to trick them? Another argument peculiar to the subject (indeed it practically introduces a new discussion) is that the Thebans may be regarded as having in virtue of their restoration recovered the right even though it be admitted that they had lost it. Again Cassander's purpose may be discussed, but, as the case is being pleaded before the Amphictyonic council, we shall find that the most powerful plea that can be urged is that of equity.

I make these remarks, not because I think that a knowledge of the places from which arguments may be derived is useless (had I thought so, I should have passed them by)but to prevent those who have learnt these rules from neglecting other considerations and regarding themselves as having a perfect and absolute knowledge of the whole subject, and to make them realise that, unless they acquire a thorough knowledge of the remaining points which I am about to discuss, they will be the possessors of what I can only call a dumb science.

For the discovery of arguments was not the result of the publication of text-books, but every kind of argument was put forward before any rules were laid down, and it was only later that writers of rhetoric noted them and collected them for publication. A proof of this is the fact that the examples which they use are old and quoted from the orators, while they themselves discover nothing new or that has not been said before.

The creators of the art were therefore the orators, though we owe a debt of gratitude also to those who have given us a short cut to knowledge. For thanks to them the arguments discovered by the genius of earlier orators have not got to be hunted out and noted down in detail. But this does not suffice to make an orator any more than it suffices to learn the art of gymnastic in school: the body must be assisted by continual practice, self control, diet and above all by nature; on the other hand none of these are sufficient in themselves without the aid of art.

I would also have students of oratory consider that all the forms of argument which I have just set forth cannot be found in every case, and that when the subject on which we have to speak has been propounded, it is no use considering each separate type of argument and knocking at the door of each with a view to discovering whether they may chance to serve to prove our point, except while we are in the position of mere learners without any knowledge of actual practice.

Such a proceeding merely retards the process of speaking to an incalculable extent, if it is always necessary for us to try each single argument and thus learn by experiment what is apt and suitable to our case. In fact I am not sure that it will not be an actual obstacle to progress unless a certain innate penetration and a power of rapid divination seconded by study lead us straight to the arguments which suit our case.

For just as the melody of the voice is most pleasing when accompanied by the lyre, yet if the musician's hand be slow and, unless he first look at the strings and take their measure, hesitate as to which strings match the several notes of the voice, it would be better that he should content himself with the natural music of the voice unaccompanied by any instrument; even so our theory of speaking must be adapted and, like the lyre, attuned to such rules as these.

But it is only by constant practice that we can secure that, just as the hands of the musician, even though his eyes be turned elsewhere, produce bass, treble or intermediate notes by force of habit, so the thought of the orator should suffer no delay owing to the variety and number of possible arguments, but that the latter should present themselves uncalled and, just as letters and syllables require no thought on the part of a writer, so arguments should spontaneously follow the thought of the orator.

The third kind of proof, which is drawn into the service of the case from without, is styled a παράδειγμα by the Greeks, who apply the term to all comparisons of like with like, but more especially to historical parallels. Roman writers have for the most part preferred to give the name of comparison to that which the Greeks style παραβολή, while they translate παράδειγμα by example, although this latter involves comparison, while the former is of the nature of an example.

For my own part, I prefer with a view to making my purpose easier of apprehension to regard both as παραδείγματα and to call them examples. Nor am I afraid of being thought to disagree with Cicero, although he does separate comparison from example. For he divides all arguments into two classes, induction and ratiocination, just as most Greeks divide it into παραδείγματα and ἐπιχειρήματα, explaining παράδειγμα as a rhetorical induction.

The method of argument chiefly used by Socrates was of this nature: when he had asked a number of questions to which his adversary could only agree, he finally inferred the conclusion of the problem under discussion from its resemblance to the points already conceded. This method is known as induction, and though it cannot be used in a set speech, it is usual in a speech to assume that which takes the form of a question in dialogue.

For instance take the following question: What is the finest form of fruit? Is it not that which is best? This will be admitted. What of the horse? What is the finest? Is it not that which is the best? Several more questions of the same kind follow. Last comes the question for the sake of which all the others were put: What of man? Is not he the finest type who is best? The answer can only be in the affirmative.

Such a procedure is most valuable in the examination of witnesses, but is differently employed in a set speech. For there the orator either answers his own questions or makes an assumption of that which in dialogue takes the form of a question. What is the finest fruit? The best, I should imagine. What is the finest horse? The swiftest. So too the finest type of man is not he that is noblest of birth, but he that is most excellent in virtue. All arguments of this kind, therefore, must be from things like or unlike or contrary. Similes are, it is true, sometimes employed for the embellishment of the speech as well, but I will deal with them in their proper place; at present I am concerned with the use of similitude in proof.

The most important of proofs of this class is that which is most properly styled example, that is to say the adducing of some past action real or assumed which may serve to persuade the audience of the truth of the point which we are trying to make. We must therefore consider whether the parallel is complete or only partial, that we may know whether to use it in its entirety or merely to select those portions which are serviceable. We argue from the like when we say, Saturninus was justly killed, as were the Gracchi; from the unlike when we say,

Brutus killed his sons for plotting against the state, while Manlius condemned his son to death for his valoulr; from the contrary when we say, Marcellus restored the works of art which had been taken from the Syracusans who were our enemies, while Verres took the same works of art from our allies. The same divisions apply also to such forms of proof in panegyric or denunciation.

It will also be found useful when we are speaking of what is likely to happen to refer to historical parallels: for instance if the orator asserts that Dionysius is asking for a bodyguard that with their armed assistance he may establish himself as tyrant, he may adduce the parallel case of Pisistratus who secured the supreme power by similar means.

But while examples may at times, as in the last instance, apply in their entirety, at times we shall argue from the greater to the less or from the less to the greater. Cities have been overthrown by the violation of the marriage bond. What punishment then will meet the case of adultery? Fluteplayers have been recalled by the state to the city which they had left. How much more then is it just that leading citizens who have rendered good service to their country should be recalled from that exile to which they have been driven by envy.

Arguments from unlikes are most useful in exhortation. Courage is more remarkable in a woman than in a man. Therefore, if we wish to kindle someone's ambition to the performance of heroic deeds, we shall find that parallels drawn from the cases of Horatius and Torquatus will carry less weight than that of the woman by whose hand Pyrrhus was slain, and if we wish to urge a man to meet death, the cases of Cato and Scipio will carry less weight than that of Lucretia. These are however arguments from the greater to the less.

Let me then give you separate examples of these classes of argument from the pages of Cicero; for where should I find better? The following passage from the pro Murena is an instance of argument from the like: For it happened that I myself when a candidate had two patricians as competitors, the one a man of the most unscrupulous and reckless character, the other a most excellent and respectable citizen. Yet I defeated Catiline by force of merit and Galba by my popularity.

The pro Milone will give us an example of argument from the greater to the less: They say that he who confesses to having killed a man is not fit to look upon the light of day. Where is the city in which men are such fools as to argue thus? It is Rome itself, the city whose first trial on a capital charge was that of Marcus Horatius, the bravest of men, who, though the city had not yet attained its freedom, was none the less acquitted by the assembly of the Roman people, in spite of the fact that he confessed that he had slain his sister with his own hand. The following is an example of argument from the less to the greater: I killed, not Spurius Maelius, who by lowering the price of corn and sacrificing his private fortune fell under the suspicion of desiring to make himself king, because it seemed that he was courting popularity with the common people overmuch, and so on till we come to, No, the man I killed (for my client would not shrink from the avowal, since his deed had saved his country) was he who committed abominable adultery even in the shrines of the gods; then follows the whole invective against Clodius.

Arguments from unlikes present great variety, for they may turn on kind, manner, time, place, etcetera, almost every one of which Cicero employs to overthrow the previous decisions that seemed to apply to the case of Cluentius, while he makes use of argument from contraries when lie minimises the importance of the censorial stigma by praising Scipio Africanus, who in his capacity of censor allowed one whom he openly asserted to have committed deliberate perjury to retain his horse, because no one had appeared as evidence against him, though he promised to come forward himself to bear witness to his guilt, if any should be found to accuse him. I have paraphrased this passage because it is too long to quote.

A brief example of a similar argument is to be found in Virgil,

But he, whom falsely thou dost call thy father,

Even Achilles, in far other wise

Dealt with old Priam, and Priam was his foe.

Historical parallels may however sometimes be related in full, as in the pro Milone: When a military tribune serving in the army of Gaius Marius, to whom he was related, made an assault upon the honour of a common soldier, the latter killed him; for the virtuous youth preferred to risk his life by slaying him to suffering such dishonour. And yet the great Marius acquitted him of all crime and let him go scot free.

On the other hand in certain cases it will be sufficient merely to allude to the parallel, as Cicero does in the same speech: For neither the famous Servilius Ahala nor Publius Nasica nor Lucius Opimius nor the Senate during my consulship could be cleared of serious guilt, if it were a crime to put wicked men to death. Such parallels will be adduced at greater or less length according as they are familiar or as the interests or adornment of our case may demand.

A similar method is to be pursued in quoting from the fictions of the poets, though we must remember that they will be of less force as proofs. The same supreme authority, the great master of eloquence, shows us how we should employ such quotations.

For an example of this type will be found in the same speech: And it is therefore, gentlemen of' the jury, that men of the greatest learning have recorded in their fictitious narratives that one who had killed his mother to avenge his father was acquitted, when the opinion of men was divided as to his guilt, not merely by the decision of a deity, but by the vote of the wisest of goddesses.

Again those fables which, although they did not originate with Aesop (for Hesiod seems to have been the first to write them), are best known by Aesop's name, are specially attractive to rude and uneducated minds, which are less suspicious than others in their reception of fictions and, when pleased, readily agree with the arguments from which their pleasure is derived. Thus Menenius Agrippa is said to have reconciled the plebs to the patricians by his fable of the limbs' quarrel with the belly. Horace also did not regard the employment of fables as beneath the dignity even of poetry; witness his lines that narrate What the shrewd fox to the sick lion told. The Greeks call such fables αἶνοι (tales) and, as I have already remarked, Aesopean or Libyan stories, while some Roman writers term them apologues, though the name has not found general acceptance.

Similar to these is that class of proverb which may be regarded as an abridged fable and is understood allegorically: The burden is not mine to carry, he said, the ox is carrying panniers.

Simile has a force not unlike that of example, more especially when drawn from things nearly equal without any admixture of metaphor, as in the following case: Just as those who have been accustomed to receive bribes in the Campus Martius are specially hostile to those whom they suspect of having withheld the money, so in the present case the judges came into court with a strong prejudice against the accused.

For παραβολή, which Cicero translates by comparison, is often apt to compare things whose resemblance is far less obvious. Nor does it merely compare the actions of men as Cicero does in the pro Murena: But if those who have just come into harbour from the high seas are in the habit of showing the greatest solicitude in warning those who are on the point of leaving port of the state of the weather, the likelihood of falling in with pirates, and the nature of the coasts which they are like to visit (for it is a natural instinct that we should take a kindly interest in those who are about to face the dangers from which we have just escaped), what think you should be my attitude who am now in sight of land after a mighty tossing on the sea, towards this man who, as I clearly see, has to face the wildest weather? On the contrary, similes of this kind are sometimes drawn from dumb animals and inanimate objects.

Further, since similar objects often take on a different appearance when viewed from a different angle, I feel that I ought to point out that the kind of comparison which the Greeks call εἰκών, and which expresses the appearance of things and persons (as for instance in the line of Cassius —

Who is he yonder that doth writhe his face

Like some old man whose feet are wrapped in wool?)

should be more sparingly used in oratory than those comparisons which help to prove our point. For instance, if you wish to argue that the mind requires cultivation, you would use a comparison drawn from the soil, which if neglected produces thorns and thickets, but if cultivated will bear fruit; or if you are exhorting someone to enter the service of the state, you will point out that bees and ants, though not merely dumb animals, but tiny insects, still toil for the common weal.

Of this kind is the saying of Cicero: As our bodies can make no use of their members without a mind to direct them, so the state can make no use of its component parts, which may be compared to the sinews, blood and limbs, unless it is directed by law. And just as he draws this simile in the pro Cluentio from the analogy of the human body, so in the pro Cornelio he draws a simile from horses, and in the pro Archia from stones.

As I have already said, the following type of simile comes more readily to hand: As oarsmen are useless without a steersman, so soldiers are useless without a general. Still it is always possible to be misled by appearances in the use of simile, and we must therefore use our judgment in their employment. For though a new ship is more useful than one which is old, this simile will not apply to friendship: and again, though we praise one who is liberal with her money, we do not praise one who is liberal with her embraces. In these cases there is similitude in the epithets old and liberal, but their force is different, when applied to ships and friendship, money and embraces.

Consequently, it is allimportant in this connexion to consider whether the simile is really applicable. So in answering those Socratic questions which I mentioned above, the greatest care must be taken to avoid giving an incautious answer, such as those given by the wife of Xenophon to Aspasia in the dialogue of Aeschines the Socratic: the passage is translated by Cicero as follows:

Tell me, pray, wife of Xenophon, if your neighbour has finer gold ornaments than you, would you prefer hers or yours? Hers, she replied. Well, then, if her dress and the rest of her ornaments are more valuable than yours, which would you prefer, hers or yours?

Hers, she replied. Come, then, said she, if her husband is better than yours, would you prefer yours or hers? At this the wife of Xenophon not unnaturally blushed; for she had answered ill in replying that she would prefer her neighbour's gold ornaments to her own, since it would be wrong to do so. If on the other hand she had replied that she would prefer her ornaments to be of the same quality as those of her neighbour, she might have answered without putting herself to the blush that she would prefer her husband to be like him who was his superior in virtue.

I am aware that some writers have shown pedantic zeal in making a minute classification of similes, and have pointed out that there is lesser similitude (such as that of a monkey to a man or a statue when first blocked out to its original), a greater similitude (for which compare the proverb As like as egg to egg), a similitude in things dissimilar (an elephant, for instance, and an ant both belong to the genus animal),and dissimilitude in things similar (puppies and kids, for example, are unlike the parents, for they differ from them in point of age).

So too they distinguish between contraries: some are opposites, as night to day, some hurtful, as cold water to a fever, some contradictory, as truth to falsehood, and some negative, as things which are not hard when contrasted with things which are hard. But I cannot see that such distinctions have any real bearing on the subject under discussion.

It is more important for our purpose to note that arguments may be drawn from similar, opposite, and dissimilar points of law. As an example of the first, take the following passage from the Topica of Cicero, where he argues that a man to whom the usufruct of a house has been left will not restore it in the interests of the heir if it collapses; just as lie would not replace a slave if he should die. The following will provide an example of an argument drawn from opposite points of law: The absence of a formal contract is no bar to the legality of a marriage, provided the parties cohabit by mutual consent, since the signing of a formal document will count for nothing in the absence of such mutual consent. An instance of an argument drawn from dissimilar points of law occurs in the pro Caecina of Cicero:

If anyone had driven me from my house by armed violence, I should have ground for action against him. Have I then no ground, if he has prevented me from entering my house? Dissimilar points may be illustrated by the following example: Because a man has bequeathed all his silver to a given person and this bequest is regarded as including silver coin as well as plate, it does not follow that he intended all outstanding debts to be paid to the legatee.

Some draw a distinction between analogy and similarly, but personally I regard the former as included under the latter. For the statement that the relation of 1 to 10 is the same as that of 10 to certainly involves similarity, just as does the statement that a bad citizen may be compared to an actual enemy. But arguments of this kind are carried still further: If connexion with a male slave is disgraceful to the mistress of the house, so is the connexion of the master with a female slave. If pleasure is an end sought by dumb animals, so also must it be with men.

But these arguments may readily be met by arguments from dissimilars: It is not the same thing for the master of the house to have intercourse with a female slave as for the mistress to have intercourse with a male slave; nor does it follow that because dumb animals pursue pleasure, reasoning beings should do likewise. Or they may even be met by arguments from opposites; as for instance, Because pleasure is an end sought by dumb animals, it should not be sought by reasoning beings.

Authority also may be drawn from external sources to support a case. Those who follow the Greeks, who call such arguments κρίσεις, style them judgments or adjudications, thereby referring not to matters on which judicial sentence has been pronounced (for such decisions form examples or precedents), but to whatever may be regarded as expressing the opinion of nations, peoples, philosophers, distinguished citizens, or illustrious poets. Nay, even common sayings and popular beliefs may be found to be useful. For they form a sort of testimony, which is rendered all the more impressive by the fact that it was not given to suit special cases, but was the utterance or action of minds swayed neither by prejudice or influence, simply because it seemed the most honourable or honest thing to say or do.

For instance, if I am speaking of the misfortunes of this mortal life, surely it will help me to adduce the opinion of those nations who hold that we should weep over the new-born child and rejoice over the dead. Or if I am urging the judge to shew pity, surely my argument may be assisted by the fact that Athens, the wisest of all states, regarded pity not merely as an emotion, but even as a god. Again, do we not regard the precepts of the Seven Wise Men as so many rules of life? If an adulteress is on her trial for poisoning, is she not already to be regarded as condemned by the judgment of Marcus Cato, who asserted that every adulteress was as good as a poisoner? As for reflexions drawn from the poets, not only speeches, but even the works of the philosophers, are full of them; for although the philosophers think everything inferior to their own precepts and writings, they have not thought it beneath their dignity to quote numbers of lines from the poets to lend authority to their statements.

Again, a remarkable example of the weight carried by authority is provided by the fact that when the Megarians disputed the possession of Salamis with the Athenians, the latter prevailed by citing a line from Homer, which is not however found in all editions, to the effect that Ajax united his ships with those of the Athenians.

Generally received sayings also become common property owing to the very fact that they are anonymous, as, for instance, Friends are a treasure, or Conscience is as good as a thousand witnesses, or, to quote Cicero, In the words of the old proverb, birds of a feather flock together. Sayings such as these would not have acquired immortality had they not carried conviction of their truth to all mankind.

Some include under this head the supernatural authority that is derived from oracles, as for instance the response asserting that Socrates was the wisest of mankind: indeed, they rank it above all other authorities. Such authority is rare, but may prove useful. It is employed by Cicero in his speech on the Replies of the Soothsayers and in the oration in which he denounced Catiline to the people, when he points to the statue of Jupiter crowning a column, and again in the pro Ligario, where lie admits the cause of Caesar to be the better because the gods have decided in his favour. When such arguments are inherent in the case itself they are called supernatural evidence; when they are adduced from without they are styled supernatural arguments.

Sometimes, again, it may be possible to produce some saying or action of the judge, of our adversary or his advocate in order to prove our point. There have therefore been some writers who have regarded examples and the use of authorities of which I am speaking as belonging to inartificial proofs, on the ground that the orator does not discover them, but receives them readymade. But the point is of great importance.

For witnesses and investigation and the like all make some pronouncement on the actual matter under trial, whereas arguments drawn from without are in themselves useless, unless the pleader has the wit to apply them in such a manner as to support the points which he is trying to make.

Such in the main are the views about proof which I have either heard from others or learned by experience. I would not venture to assert that this is all there is to be said; indeed I would exhort students to make further researches on the subject, for I admit the possibilities of making further discoveries. Still anything that may be discovered will not differ greatly from what I have said here. I will now proceed to make a few remarks as to how proofs should be employed.

It has generally been laid down that an argument to be effective must be based on certainty; for it is obviously impossible to prove what is doubtful by what is no less doubtful. Still some things which are adduced as proof require proof themselves. You killed your husband, for you were an adulteress.

Adultery must first be proved: once that is certain it can be used as an argument to prove what is uncertain. Your javelin was found in the body of the murdered man. He denies that it was his. If this point is to serve as a proof, it must itself be proved. It is, however, necessary in this connection to point out that there are no stronger proofs than those in which uncertainty has been converted into certainty. You committed the murder, for your clothes were stained with blood. 'This argument is not so strong if the accused admits that his clothes were bloodstained as if the fact is proved against his denial. For if he admits it, there are still a number of ways in which the blood could have got on to his clothes: if on the other hand he denies it, lie makes his whole case turn on this point, and if his contention is disproved, he will he unable to make a stand on any subsequent ground. For it will be thought that he would never have told a lie in denying the allegation, unless he had felt it a hopeless task to justify himself if he admitted it.

In insisting on our strongest arguments we must take them singly, whereas our weaker arguments should be massed together: for it is undesirable that those arguments which are strong in themselves should have their force obscured by the surrounding matter, since it is important to show their true nature: on the other hand arguments which are naturally weak will receive mutual support if grouped together.

Consequently arguments which have no individual force on the ground of strength will acquire force in virtue of their number, since all tend to prove the same thing. For instance, if one man is accused of having murdered another for the sake of his property, it may be argued as follows: You had expectations of succeeding to the inheritance, which was moreover very large: you were a poor man, and at the time in question were specially hard pressed by your creditors: you had also offended him whose heir you were, and knew that he intended to alter his will. These arguments are trivial and commonplace in detail, but their cumulative force is damaging. They may not have the overwhelming force of a thunderbolt, but they will have all the destructive force of hail.

There are certain arguments, which must not merely be stated, but supported as well. If we say, The motive for the crime was greed, we must show the force of greed as a motive: if we say that anger was the motive, we must show the sway that this passion has over the minds of men. Thus our arguments will not only be strengthened, but will be more ornamental as well, since we shall have produced something more than a mere fleshless skeleton. It also makes an enormous difference, supposing that we allege hatred as the motive for a crime, whether such hatred was due to envy, injury or unlawful influence, whether it was recent or of long standing, whether it was directed against an inferior, an equal or a superior, against a stranger or a relative. There are special methods for the treatment of all these arguments, and tile treatment to be selected will depend on the interests of the case which we are defending.

On tile other hand we must not always burden the judge with all the arguments we have discovered, since by so doing we shall at once bore him and render him less inclined to believe us. For he will hardly suppose those proofs to be valid which we ourselves who produce them regard as insufficient. On the other hand, where the facts are fairly obvious, it would be as foolish to argue about them as to bring some artificial light into broad sunlight.

To these proof's some authorities would add those which they call pathetic or emotional. Aristotle indeed holds that the strongest argument in support of a speaker is that he is a good man. This no doubt is the best support, but to seem good is also of value, though the semblance is but a bad second to the reality.

Of this nature is the noble defence of Scaurus. Quintus Varius of Sucro asserts that Aemilius Scaurus has betrayed the interests of the Roman people: Aemilius Scaurus denies it. A similar defence is said to have been employed by Iphicrates: he asked Aristophon who was accusing him on a similar charge of treason whether lie would consent to betray his country for a bribe: when Aristophon replied in the negative, he continued, Have I then done what you would have refused to do?

We must however take the character of the judge into consideration and seek out such arguments as will appeal to him. I have already spoken of this in the rules which I laid down for the exordium and for deliberative oratory.

Another form of proof is provided by asseveration as in I did this, You told me this, or O outrageous crime! and the like. Every pleading should contain some such asseverations; if it does not, the loss will be considerable. Still asseverations must not be regarded as supports of the first importance, since they can be produced by either party in the same case with the same emphasis.

A more forcible kind of proof is that drawn from character and supported by some plausible reason, as for instance, It is not likely that a wounded man or one who has lost his son would accuse anyone who is not guilty, since if he accused an innocent man, he would free the real offender from all risk of punishment. It is from such arguments that fathers seek support when pleading against their sons or one relative against another.

The further question has been raised as to whether the strongest arguments should be placed first, to take possession of the judge's mind, or last, to leave an impression on it; or whether they should be divided between the commencement and close of the proof, adopting the Homeric disposition of placing the weakest in the centre of the column, so that they may derive strength from their neighbours. But in the disposition of our arguments we must be guided by the interests of the individual case: there is only one exception to this general rule in my opinion, namely, that we should avoid descending from the strongest proofs to the weakest.

I have been content to give a brief outline of my views concerning these points, and have put them forward in such a way as to show as clearly as was in my power the various topics and kinds of arguments. Others have dealt with the subject at greater length, preferring to deal with the whole subject of commonplaces and to show how each topic may be treated.

This seems to me unnecessary, since it is as a rule obvious what should be said against the injurious conduct or avarice of our opponents, or against a hostile witness or powerful friends; to say everything on all these subjects is an endless task, as endless in fact as if I were to attempt to lay down rules for dealing with every dispute that can ever occur and all the questions, arguments and opinions thereby involved.

I do not venture to suppose that I have pointed out all the circumstances that may give rise to arguments, but I think that I have done so in the majority of cases. This was a task which required all the more careful handling because the declamations, which we used to employ as foils wherewith to practise for the duels of the forum, have long since departed from the true form of pleading and, owing to the fact that they are composed solely with the design of giving pleasure, have become flaccid and nerveless: indeed, declaimers are guilty of exactly the same offence as slave-dealers who castrate boys in order to increase tile attractions of their beauty.

For just as the slave-dealer regards strength and muscle, and above all, the beard and other natural characteristics of manhood as blemishes, and softens down all that would be sturdy if allowed to grow, on the ground that it is harsh and hard, even so we conceal the manly form of eloquence and power of speaking closely and forcibly by giving it a delicate complexion of style and, so long as what we say is smooth and polished, are absolutely indifferent as to whether our words have any power or no.

But I take Nature for my guide and regard any man whatsoever as fairer to view than a eunuch, nor can I believe that Providence is ever so indifferent to what itself has created as to allow weakness to be an excellence, nor again can I think that the knife can render beautiful that which, if produced in the natural course of birth, would be regarded as a monster. A false resemblance to the female sex may in itself delight lust, if it will, but depravity of morals will never acquire such ascendancy as to succeed in giving real value to that to which it has succeeded in giving a high price.

Consequently, although this debauched eloquence (for I intend to speak with the utmost frankness) may please modern audiences by its effeminate and voluptuous charms, I absolutely refuse to regard it as eloquence at all: for it retains not the slightest trace of purity and virility in itself, not to say of these qualities in the speaker.

When the masters of sculpture and painting desired to carve or paint forms of ideal beauty, they never fell into the error of taking some Bagoas or Megabyzus as models, but rightly selected the well-known Doryphorus, equally adapted either for the fields of war or for the wrestling school, and other warlike and athletic youths as types of physical beauty. Shall we then, who are endeavouring to mould the ideal orator, equip eloquence not with weapons but with timbrels?

Consequently, let the youth whom we are training devote himself, as far as in him lies, to the imitation of truth and, in view of the fact that the battles of the forum that await him are not few, let him strive for victory in the schools and learn how to strike the vitals of his foe and protect his own; and let his instructor insist on his doing this above all else and reserve his special approval for the mastery of this art. For though young men may be lured to evil practices by praise, they still prefer to be praised for what is right.

At the present time the misfortune is that teachers more often than not pass over what is necessary in silence, and utility is not accounted one of the good qualities of eloquence. But I have dealt with these points in another work, and shall often have to recur to them in this. I will now return to my prescribed course.

Refitation may be understood in two senses. For the duty of the defence consists wholly in refutation, while whatever is said by our opponents must be rebutted, whether we are speaking for the defence or the prosecution. It is in this sense that refutation is assigned the fourth place in pleadings, but the methods required in either case are identical. For the principles of argument in refutation can only be drawn from the same sources as those used in proof, while topics and thoughts, words and figures will all be on the same lines.

As a rule no strong appeal to the emotions is made in refutation. It is not, however, without reason that, as Cicero so often testifies, the task of defence has always been considered harder than that of prosecution. In the first place accusation is a simpler task: for the charge is put forward in one definite form, but its refutation may take a number of different forms, since as a rule it is sufficient for the accuser that his charge should be true, whereas counsel for the defence may deny or justify the facts, raise the question of competence, make excuses, plead for mercy, soften, extenuate, or divert the charge, express contempt or derision. The task of the accuser is consequently straightforward and, if I may use the phrase, vociferous; but the defence requires a thousand arts and stratagems.

Moreover the prosecutor generally produces a speech which he has prepared at home, while the counsel for the defence has frequently to deal with quite unexpected points. The prosecutor brings forward his witnesses, while counsel for the defence has to refute the charge by arguments drawn from the case itself. The prosecutor draws his material from the odium excited by the charges, even though it have no justification, denouncing parricide, sacrilege, or treason, whereas counsel for the defence can only deny them. Consequently quite moderate speakers have proved adequate in prosecution, while no one can be a good counsel for the defence unless he possesses real eloquence. In a word, it is just so much easier to accuse than to defend as it is easier to inflict than to heal a wound.

The nature of the arguments put forward by our opponent and the manner in which he produces them will, however, make an enormous difference to our task. We must therefore first consider what it is to which we have to reply, whether it is part and parcel of the actual case or has been introduced from circumstances lying outside the case. For in the former case we must deny or justify the facts or raise the question of competence: for these are practically the sole methods of defence available in the courts. Pleas for mercy, which are not in any sense a method of actual defence, can rarely be used, and only before judges who are not limited to some precise form of verdict. Even those speeches delivered before Gaius Caesar and the triumvirs on behalf of members of the opposite party, although they do employ such pleas for mercy, also make use of the ordinary methods of defence. For I think you will agree with me that the following passage contains arguments of a strongly defensive character: What was our object, Tubero, save that we might have the power that Caesar has now But if, when pleading before the emperor or any other person who has power either to acquit or condemn, it is incumbent on us to urge that, while our client has committed an offence that deserves the death penalty, it is still the duty of a merciful judge to spare him despite his sins, it must be noted in the first place that we have to deal, not with our adversary, but with the judge, and secondly that we shall have to employ the deliberative rather than the forensic style. For we shall urge the judge to fix his desire rather on the glory that is won by clemency than on the pleasure that is given by vengeance.

On the other hand, when we are pleading before judges who have to give their verdict in accordance with the prescriptions of law, it would be absurd to give them advice as to how they should deal with a criminal who admits his guilt. Consequently, when it is impossible either to deny the facts or to raise the question of competence, we must attempt to justify the facts as best we can, or else throw up the case. I have pointed out that there are two ways in which a fact can be denied: it can be denied absolutely, or it may be denied that a fact is of the nature alleged. When it is impossible to plead justification or to raise the question of competence, we must deny the facts, and that not merely when a definition of the facts will serve our case, but even when nothing except an absolute denial is left for us.

If witnesses are produced, there is much that may be said to discredit them; if a document is put forward, we may hold forth on the similarity of the handwritings. In any case there can be no worse course than confession of guilt. When denial and justification are both impossible, we must as a last resort base our defence on the legal point of competence.

Still, there are some cases in which none of these three courses is possible. She is accused of adultery on the ground that after a widowhood of twelve months she was delivered of a child. In this case there is no ground for dispute. Consequently I regard as the height of folly the advice that is given in such cases, that what cannot be defended should be ignored and passed over in silence, at any rate if the point in question is that on which the judge has to give his decision.

On the other hand, if the allegation is irrelevant to the actual case and no more than accessory, I should prefer simply to state that it has nothing to do with the question at issue, that it is not worth our attention, and that it has not the importance given to it by our opponent, though in such a case I should be prepared to pardon a policy of ignoring the charge such as I have just mentioned. For a good advocate ought not to be afraid of incurring a trivial censure for negligence, if such apparent negligence is likely to save his client.

We must further consider whether we should attack our opponent's arguments en masse or dispose of them singly. We shall adopt the former course if the arguments are so weak that they can be overthrown simultaneously, or so embarrassing that it would be inexpedient to grapple with them individually. For in such a case we must fight with all the force at our disposal and make a frontal attack. Sometimes, if it is difficult to refute the statements made by our opponents, we may compare our arguments with theirs, at least if by such a procedure it is possible to prove the superiority of our own. On the other hand, those arguments which rely on their cumulative force must be analysed individually, as for example in the case which I cited above: You were the heir, you were poor and were summoned by your creditors for a large sum: you had offended him and knew that he intended to change his will.

The cumulative force of these arguments is damaging. But if you refute them singly, the flame which derived its strength from the mass of fuel will die down as soon as the material which fed it is separated, just as if we divert a great stream into a number of channels we may cross it where we will. We shall therefore adapt our method of refutation to the exigencies of our case, now dealing with individual arguments and now treating them in bulk.

For at times we may include in a single proposition the refutation of an argument which our opponent has constructed of a number of different points. For instance, if the accuser allege that the accused had a number of motives for committing a crime, we may make a general denial of the fact without dealing singly with each alleged motive, because the fact that a man has had a motive for committing a crime does not prove that he has actually committed it.

It will however as a rule be expedient for the prosecution to employ massed arguments, and for the accused to refute them in detail. We must, however, also consider the manner in which we should refute the arguments of our opponent. If his statements be obviously false, it will be sufficient to deny them. This is done by Cicero in the pro Cluentio, where he denies that the man alleged by the accuser to have fallen dead on the spot after drinking the contents of the cup, died on the same day.

Again, it requires no skill to rebut arguments which are obviously contradictory, superfluous or foolish, and consequently I need give no examples nor instructions as to the method to be employed. There is also the type of charge which is known as obscure, where it is alleged that an act was committed in secret without witnesses or any evidence to prove it: this suffers from an inherent weakness, since the fact that our opponent can produce no proof is sufficient for our purpose: the same applies to arguments which are irrelevant to the case.

It is, however, sometimes an orator's duty to make it appear that some argument of his opponent is contradictory or irrelevant or incredible or superfluous or really favourable to his own client. Oppius is charged with having embezzled the supplies intended to feed the troops. It is a serious charge, but Cicero shows that it contradicts other charges, since the same accusers also charged Oppius with desiring to corrupt the army by bribes.

The accuser of Cornelius offers to produce witnesses to show that he read out the law when tribune: Cicero makes this argument superHuous by admitting it. Quintus Caecilius demands to be entrusted with the task of accusing Verres on the ground that he had been the latter's quaestor: Cicero actually makes this argument tell in his own favour.

As regards other charges, they may all be dealt with by very similar methods. For they may be demolished either by conjecture, when we shall consider whether they are true, by definition, when we shall examine whether they are relevant to the case, by quality, when we shall consider whether they are dishonourable, unfair, scandalous, inhuman, cruel, or deserve any other epithet coming under the head of quality.

Such questions have to be considered, not merely in connection with the statement of the charges or the reasons alleged, but with reference to the nature of the case in its entirety. For instance, the question of cruelty is considered with regard to the charge of high treason brought against Rabirius by Labienus; of inhumanity in the case of Tubero who accused Ligarius when he was an exile and attempted to prevent Caesar from pardoning him; of arrogance as in the case of the charge brought against Oppius on the strength of a letter of Cotta.

Similarly, it may be shown that charges are hasty, insidious or vindictive. The strongest argument, however, which can be brought against a charge is that it involves peril to the community or to the judges themselves; we find an example of the former in the pro Tullio, where Cicero says Who ever laid down such a principle as this, or who could be allowed, without grave peril to the community, to kill a man, just because he asserts that he feared that he himself might be killed by him? An instance of the latter occurs in the pro Oppio, where Cicero warns the judges at some length not to permit such an action to be brought against the equestrian order.

On the other hand there are certain arguments which at times may best be treated with contempt, as being trivial or irrelevant. This course is frequently pursued by Cicero, indeed this affectation of indifference is sometimes carried so far that we trample disdainfully under foot arguments which we should never succeed in refuting by counter-argument.

Since, however, the majority of such arguments are based on similarity, we must make diligent search to discover if any discrepancy is to be found in what is put forward. It is easy to do this where points of law are concerned. For the law was drafted to cover cases quite other than the present, and consequently it is all the easier to show the difference between case and case. As to parallels drawn from dumb animals or inanimate objects, they are easy to make light of.

Examples drawn from facts, if damaging to our case, must be treated in various ways: if they are ancient history, we may call them legendary, while if they are undoubted, we may lay stress on their extreme dissimilarity. For it is impossible for two cases to be alike in every detail. For instance, if the case of Ahala,2 by whom Maelius was killed, is quoted to justify Nasica for the slaying of Tiberius Gracchus, we may argue that Maelius was endeavouring to make himself king, while all that Gracchus had done was to bring forward laws in the interest of the people, and that while Ahala was Master of the Horse, Nasica was a private citizen. In the last resort, if all else prove unavailing, we must see if we can show that the action adduced as a parallel was itself unjustifiable. These remarks as to examples apply also to previous decisions in the courts.

With regard to my statement that the manner in which the accuser stated his charges was of importance, I would point out in this connexion that if he has spoken but feebly, we may repeat his actual words; while, if he has used bitter and violent language, we may restate the facts in milder terms, as Cicero does in the pro Cornelio, where he says, He put his hand to the tablet containing the law:

and we may do this in such a way as to defend our client; for instance, if our client is addicted to luxury, we may say, He has been charged with living in a somewhat too liberal style. So, too, we may call a mean man thrifty and a slanderous tongue free.

But we must never under any circumstances repeat our opponent's charges together with their proofs, nor emphasise any of his points by amplifying them, unless we do so with a view to making light of them, as for instance in the following passage: You have been with the army, he says, and have not set foot in the forum for so many years, and do you now on returning after so long an interval seek to compete for a post of high dignity with those who have made the forum their home?

Again, when we are replying to the accuser we may sometimes set forth the whole charge, as Cicero does in the pro Scauro with reference to the death of Bostar, where he virtually parodies the speech of his opponent, or we may take a number of points raised in the course of the accusation and put them together as in the pro Vareno: They have asserted that, when he was journeying with Pompulenus through a lonely stretch of country, he fell in with the slaves of Ancharius, that Pompulenus was then killed and Varenus imprisoned on the spot until such time as this man should indicate what he wished to be done with him. Such a procedure is useful, if the sequence of facts alleged by the prosecution is incredible, and likely to lose its force by restatement. Sometimes, on the other hand, we may destroy the cumulative force of a number of statements by refuting them singly; in fact this is generally the safest course. Sometimes, again, the different portions of our reply will be independent of one another, a case which requires no illustration.

Common arguments are readily appropriated, not merely because they can be used by either party, but because they are of greater service to the speaker who is replying; for I shall not scruple to repeat the warning which I have often given already; the speaker who is first to employ such an argument makes it tell against himself.

For an argument must needs tell against a speaker if it be one which his opponent can use with effect. But, you say, it is not probable that a crime of this magnitude was designed by Marcus Cotta. Is it probable then that a crime of this magnitude was attempted by Oppius? On the other hand it is a task for a real artist to discover inconsistencies, real or apparent, in the speech of his opponent, though such inconsistencies are sometimes evident from the bare facts, as for instance in the case of Caelius, where Clodia asserts on the one hand that she lent Caelius money, which is an indication of great intimacy, and on the other hand that he got poison to murder her, which is a sign of violent hatred. Tubero similarly accuses Ligarius of having been in Africa, and complains that Ligarius refused to allow him to land in Africa. At times, however, some ill-advised statement by our opponent will give us an opportunity of demolishing his arguments. This is specially likely to occur with speakers who have a passion for producing impressive thoughts: for the temptation to air their eloquence is such that they take no heed of what they have said already, being absorbed by the topic immediately before them to the detriment of the interests of the case as a whole.

What is there likely to tell so heavily against Cluentius as the stigma inflicted by the censors? What can be more damaging than the fact that Egnatius disinherited his son on the ground that lie had been bribed to give a false verdict in the trial in which Cluentius secured the condemnation of Oppianicus? But Cicero shows that the two facts tell against one another. But, Attius, I would urge you to give the closest consideration to the following problem. Which do you desire to carry the greater weight—the judgment of the censors, or of Egnatius? If the latter, you regard the judgment of the censors in other cases as counting for little, since they expelled this same Gnaeus Egnatius, on whose authority you lay such stress, from his place in the senate. On the other hand, if you attach most weight to the judgment of the censors, I must point out that the censors retained the younger Egnatius, whom his father disinherited by an act resembling a censorial decision, in his position as senator, although they had expelled his father. As regards errors such as the following, the folly shown in their commission is out of all proportion to the skill required to deal with them: I refer to mistakes such as advancing a disputable argument as indisputable, a controversial point as admitted, a point common to a number of cases as peculiar to the case in hand, or the employment of trite, superfluous, or incredible arguments. For careless speakers are liable to commit a host of errors: they will exaggerate a charge which has still got to be proved, will argue about an act when the question is who committed it, will attempt impossibilities, drop an argument as if it were complete, whereas it is scarcely begun, speak of the individual in preference to the case, and attribute personal faults to circumstances, as for instance if a speaker should attack the decemvirate instead of Appius. They will also contradict what is obvious, speak ambiguously, lose sight of the main issue of the case, or give replies which have no relation to the charges made. This latter procedure may, it is true, be occasionally employed when we have a bad case which requires to be supported by arguments drawn from matters foreign to the case. The trial of Verres provides an example; when accused of peculation it was alleged that he had shown courage and energy in his defence of Sicily against the pirates.

The same rules apply to objections which we may have to meet. But there is one point which requires special attention, since in such cases many speakers fall into two very different faults. For some even in the courts will pass by such objections when raised by their opponents as troublesome and vexatious details, and, contenting themselves with the arguments which they have brought ready-made from their study, will speak as if their opponent did not exist. This error is of course far more common in the schools, for there objections are not merely disregarded, but the subjects for declamation are generally framed in such a way that there is nothing to be said on the opposite side.

On the other hand there are some who surfer from excess of zeal, and think it their duty to reply to every word and even every trifling reflexion, a task which is at once endless and superfluous. For it is not the case. but the pleader, whom they are refuting. Personally I should always prefer that a speaker should reveal his eloquence in such a way that, if what he says advances his case, the credit will be given to his talent and not to the nature of his case, while if what he says damages his case the blame will attach to the case and not to his powers.

Consequently when we come across denunciations such as that directed against Rullus for the obscurity of his language, or against Piso for his utter incapacity as a speaker, or against Antony for his lack of taste and his complete ignorance both of words and things, we shall give then our sanction as reasonable concessions to passion and just resentment, and as useful in stirring up hatred against those whom it is desired to render unpopular.

The method of reply to our opponent's counsel should be on different lines. Sometimes however we are justified in attacking, not merely their manner of speaking, but also their character, their appearance, their gait or bearing. Indeed, in his attack on Quintius, Cicero does not confine himself to these topics, but even attacks his purple-bordered toga that goes trailing to his heels: for Quintius had caused Cluentius grave embarrassment by his turbulent harangues.

Sometimes, in order to dispel the unpopularity excited by bitter criticism, the latter may be disposed of by a jest, as for example Cicero disposes of Triarius. For to the allegation that the pillars destined for the house of Scaurus were carried on waggons through the city streets he replied, I got my pillars from the quarries of Alba, and had them brought in panniers! Such tactics are more readily allowed against an accuser, for the duties of counsel for the defence sometimes force him to make such personal attacks.

On the other hand there is no objection to complaining of the conduct of the advocates on either side, so long as our complaint follows accepted practice and does not overstep the limits imposed by good manners; I refer to complaints such as that our opponents have abridged, obscured or postponed the discussion of some point, or with deliberate cunning have avoided discussing it at all.

A change in the tactics of defence is also often selected for censure. For example, Attius in his speech against Cluentius complains that Cicero insists on the letter of the law, and Aeschines in his speech against Ctesiphon complains that Demosthenes refuses to consider the legal aspect of the case. It is however necessary to issue a special warning to declaimers that they should not put forward objections that can easily be met or assume that their opponent is a fool. As it is, owing to our tendency to think that the subject-matter of our speech may be drawn from our own fancy, florid commonplaces and epigrams designed to bring down the house occur to our minds with the utmost readiness, with the result that we should do well to bear in mind the lines:

A shrewd retort! Could it be otherwise?

A foolish question makes for smart replies.

But such a practice will be fatal in the courts, where we have to answer our opponent and not ourselves. It is said that Accius, when asked why he did not turn advocate in view of the extraordinary skill in making apt replies which his tragedies revealed, replied that in his plays the characters said what he himself wanted them to say, whereas in the courts his adversaries would probably say just what he least wanted them to say.

It is therefore ridiculous in exercises which prepare the student for the actual courts to consider what answer can be made before ever giving a thought to what the opposing counsel is likely to say. And a good teacher should commend a pupil no less for his skill in thinking out arguments that may be put forward for the opposite side than in discovering arguments to prove his own case.

Again, there is another practice which is always permissible in the schools, but rarely in the courts. For when we speak first as claimants in a real case, how can we raise objections, seeing that our opponent has so far said nothing?

Still, many fall into this error either because they have acquired the habit in declamation or simply owing to a passion for hearing their own voice, thereby affording fine sport to those who reply: for sometimes the latter will remark sarcastically that they never said anything of the kind and have no intention of saying anything so idiotic, and sometimes that they are grateful for the admirable warnings so kindly given by their opponent: but most often they will say, and this is the strongest line that they can take, that their opponent would never have replied to objections which had never been raised had he not realised that these objections were justified and been driven to admit it by his consciousness of the fact.

We may find an example of this in the pro Cluentio of Cicero: You have frequently asserted that you are informed that I intend to base my defence on the letter of the law. Really! I suppose that my friends have secretly betrayed me, and that there is one among those whom I believe to be my friends who reports my designs to my opponent. Who gave you this information? Who was the traitor? And to whom did I ever reveal my design? No one, I think, is to blame. It must have been the law itself that told you. But there are some who, not content with raising imaginary objections, develop whole passages on such themes, saying that they know their opponents will say this and will proceed to argue thus and thus. I remember that Vibius Crispus in our own day disposed of this practice very neatly, for he was a humorous fellow with a very pretty wit: I do not make those objections which you attribute to me, he said, for what use would it be to make them twice?

Sometimes however it may be possible to put forward something not unlike such objections, if some point included by our opponent in the depositions which he produces has been discussed among his advocates: for then we shall be replying to something which they have said and not to an objection which has been invented by ourselves; or again, this will be possible if the case is of such a nature that we are in a position to state certain definite objections which are absolutely essential to our opponent's case: for instance, if stolen goods have been discovered in a house, the accused must of necessity allege either that they were brought there without his knowledge or deposited with him or given to him and we may therefore answer all these points even although they have not been put forward.

On the other hand, in the schools we are quite justified in answering both statements and imaginary objections; for by these means we shall train ourselves at one and the same time for speaking either first or second. Unless we do this, we shall have no chance of employing objections, since there is no adversary to whom we can reply.

There is another serious fault into which pleaders fall: the anxious over-elaboration of points. Such a procedure makes his case suspect to the judges, while frequently arguments which, if stated without more ado, would have removed all doubt, lose their force owing to the delay caused by the elaborate preparations made for their introduction, due to the tact that the advocate thinks that they require additional support. Our orator must therefore adopt a confident manner, and should always speak as if he thought his case admirable. This quality, like all other good qualities, is particularly evident in Cicero.

For the extraordinary care which he takes gives the impression of confidence and carries such weight when lie speaks that it does not permit us to feel the least doubt and has all the force of genuine proof. Further, the advocate who knows what are the strongest points in his own and his opponent's case will easily be able to decide what points it will be most necessary for him to emphasise or to counter.

As regards order, there is no part of a case which involves less trouble. For, if we are prosecuting, our first duty will be to prove our own case, our second to refute the arguments brought against it. If, on the other hand, we are defending, we must begin by refutation.

But from our answers to objections fresh objections will arise, a process which may be carried to some length. The strokes of gladiators provide a parallel. If the first stroke was intended to provoke the adversary to strike, the second will lead to the third, while if the challenge be repeated it will lead to the fourth stroke, so that there will be two parries and two attacks. And tile process may be prolonged still further.

But refutation also includes that simple form of proof, which I described above, based on an appeal to the emotions and mere assertion; for an example see the words of Scaurus which I have already quoted. Nay, I am not sure that this form of proof is not actually of more frequent occurrence when something is denied. It is, however, specially important for both parties that they should see where the main issue lies. For it often happens that the points raised in pleading are many, although those on which a decision is given are few.

Such are the elements of the methods of proof and refutation, but they require to be embellished and supported by the powers of the speaker. For although our arguments may be admirably adapted to express what we desire, they will none the less be slight and weak unless the orator makes a special effort to give them life.

Consequently the commonplaces on the subject of witnesses, documentary evidence, arguments and the like make a great impression on the minds of the judges, as also do those topics which are peculiar to the case, those I mean in which we praise or blame any action or show that it is just or unjust, or make it seem more or less important or more or less harsh than it really is. Of these topics some are adapted to the comparison of individual arguments, others to the comparison of a number, while others may serve to influence the success or failure of the whole case.

Some again prepare the mind of the judge, while others confirm it in opinions already formed. But such preparation or confirmation will sometimes apply to the whole case, sometimes only to particular portions, and must therefore be employed with due regard to circumstances.

I am consequently surprised that there should be a violent dispute between the leaders of two opposite schools as to whether such commonplaces should be applied to individual questions (which is the view of Theodorus), or whether the judge should be instructed in the facts before any appeal is made to his feelings (the latter being the view of Apollodorus), as though no middle course were possible and no regard were to be had to the exigencies of the case itself. Those who lay down such rules have no experience of speaking in the actual courts, the result being that text-books composed in the calm leisure of the study are sadly upset by the necessities of forensic strife.

For practically all those who have set forth the law of speaking as though it were a profound mystery, have tied us down not merely to fixed topics for argument, but to definite rules as to how we should draw our conclusions.

propose after making a few preliminary remarks on the subject to give a frank expression of my own views, or in other words to set forth what I perceive to have been the practice of the most distinguished orators.

Tile term enthymeme is applied not merely to the actual argument, that is to say, the matter adduced to prove something else, but also to its expression, the nature of which, as I have already pointed out, is twofold. It may be drawn from denial of consequents, when it will consist of a proposition immediately followed by a proof, as in the following passage from the pro Ligario;

At that point the justice of the cause was doubtful, since there was something to be said on both sides. But now we can only regard that cause as superior, which even the gods supported. Here we have a proposition and a reason, but no formal conclusion: it is therefore tile incomplete syllogism known as an enthymeme.

It may on the other hand be drawn from incompatibles, in which case the proof will be much stronger; indeed some restrict the title of enthymeme to this form of argument. The following passage from the pro Milone of Cicero will provide a parallel: You are then sitting there to avenge the death of a man whom you would refuse to restore to life, even if you thought it within your power to do so.

This form of argument may even at times consist of a number of clauses, as in the following passage from the same speech: Was he resolved then to kill to the dissatisfaction of some a man whom he refused to kill to the satisfaction of all? Are we to believe that he did not hesitate, in defiance of the law and despite the unfavourable circumstances both of time and place and the risk involved to his own life, to kill one whom he did not venture to kill when he might have done so legally, at his own time and place and without the least danger to himself?

The most effective kind of enthymeme seems however to be that in which a reason is subjoined to a dissimilar or contrary proposition as in the following passage from Demosthenes: For if at any time an act has been committed contrary to law and you have imitated it, it does not therefore follow that you should go scot free; on the contrary it is an additional reason why you should be condemned. For if any of those who transgressed the law had been condemned, you would not have proposed this, and further, if you are condemned, no one else will propose anything of the kind.

As regards the epicheieme, some authorities hold that it consists of four, five, and even six parts. Cicero urges that there are not more than five at most, i.e. the major premise and its reason, the minor premise and its proof, and fifthly the conclusion. But since at times the major premise does not require a reason nor the minor a proof, while occasionally even the conclusion is not necessary, he holds that the epicheireme may consist of only four, three, or even two parts.

Personally however follow the majority of authorities in holding that there are not more than three parts. For it follows from the very nature of reasoning that there must be something to form the subject of enquiry and something else to provide the proof, while the third element which has to be added may be regarded as resulting from the agreement of the two previous elements. Thus the first part will be the major, the second the minor premise and the third the conclusion. For the confirmation and development of both premises may reasonably be included in the parts to which they belong.

Let us then take an example from Cicero of the epicheireme consisting of five parts. Those things which are controlled by reason are better governed than those which are not. This they call the first part and consider that it requires to be established by various reasons and a copious display of eloquence. Personally I hold that the whole of this together with its reason forms but one part. Otherwise, if the reason is to be treated as a separate part and if there are a variety of reasons, this will involve an addition to the number of parts. Next he produces the minor premise:

But there is nothing better administered than the universe. The proof of this minor premise is treated as the fourth part of the epicheireme. My criticism of this statement is identical with my criticism of the preceding.

The fifth place they assign to the conclusion which either merely makes the necessary inference from the preceding parts (i.e. Therefore the universe is governed by reason) or after briefly bringing major and minor premise together adds what is deduced from them with the following result: But if on the one hand things that are controlled by reason are better governed than things which are not and on the other nothing is better administered than the universe, then it follows that the universe is governed by reason. As regards this part of the epicheireme I agree.

I have said that the epicheireme consists of three parts: its form is not however invariable. There is firstly the form in which the conclusion is identical with what has already been stated in the major premise. The soul is immortal, since whatever derives its motion from itself is immortal. But the soul derives its motion from itself. Therefore the soul is immortal. This process occurs not merely in individual arguments, but in whole cases, provided they are of a simple character, and also in questions.

For cases and questions always have first a major premise, such as You have committed sacrilege, or Not everyone who has killed a man is guilty of murder. Second comes a reason, which is stated at greater length in cases and questions than in separate arguments, while finally comes the conclusion in which as a rule they set forth the point they have proved either by enumeration of particulars or in the form of a hasty conclusion. In this type of epicheireme the major premise is doubtful, since it is still under investigation.

There is another form of conclusion which is not actually identical with the major premise, but has the same force Death is nothing to us, for that which is dissolved into its elements is devoid of' feeling, and that which is devoid of feeling is nothing to us. There is a third form in which the major premise and the conclusion are different. All animate things are better than inanimate, but there is nothing better than the universe, wherefore the universe is animate. It may be thought that in this case there is no real major premise, since it would be possible to state the reasoning in the following form: The universe is animate, for all things animate are better than inanimate, etcetera.

This major premise is either an admitted fact as in the last example or requires to be proved as in the following: He who wishes to live a happy life, must be a philosopher: for this is not an acknowledged truth, and the premises must be established before we can arrive at the conclusion. Sometimes again the minor premise is an admitted fact, as for instance, But all men wish to live a happy life, while sometimes it requires to be proved, as for example the statement quoted above, That which is dissolved into its elements is devoid of feeling, since it is doubtful whether the soul is immortal after its release from the body or only continues to exist for a time. Some call this a minor premise, some a reason.

There is no difference between the epicheireme and the syllogism, except that the latter has a number of forms and infers truth from truth, whereas the epicheireme is frequently concerned with statements that are no more than credible. For if it were always possible to prove controversial points from admitted premises, the orator would have little to do in this connexion.

For what skill does it require to say, The property is mine, for I am the only son of the deceased, or I am the sole heir, since possession of the testator's estate is given by the law of property in accordance with the terms of his will: the property therefore belongs to me?

But when the reason given is itself disputable, we must establish the certainty of the premises by which we are proposing to prove what is uncertain. For example, if our opponent says You are not his son or You are illegitimate or You are not his only son; or, again, You are not his heir or The will is invalid or You are not entitled to inherit or You have co-heirs, we must prove the validity of the reason on which we base our claim that the property should be adjudicated to us.

But when a reason of unusual length intervenes, it is necessary to state the final conclusion, otherwise the major premise and the reason would suffice. Laws are silent in the midst of arms, and do not require us to await their sanction when the circumstances are such that he who would await their sanction is certain to be the victim of an unjust penalty before ever the just penalty can be claimed.

Hence it has been asserted that the form of enthymeme which is based on denial of consequents resembles a reason. But sometimes, again, it is sufficient to state a single proposition as in the example just quoted, The laws are silent in the midst of arms.

We may also begin with the reason and then proceed to the conclusion as in another passage from the same speech: But if the Twelve Tables permitted the killing of a thief by night under any circumstances, and by day if he used a weapon to defend himself, who is there who will contend that the slayer must be punished under whatever circumstances a man has been killed? 'The process is still further varied by Cicero, and the reason placed third, as in the phrase, When he sees that the sword is sometimes placed in our hands by the laws themselves.

On the other hand, he places the various parts in the regular order in the following instance: How can it be unjust to kill a robber who lies in wait for his victim? Next comes the reason: What is the object of our escorts and our swords? Last comes the conclusion resulting from the major premise and the reason: Which we certainly should not be permitted to have, if we were absolutely forbidden to use them.

This form of proof may be countered in three ways, that is to say it may be attacked in all its parts. For either the major premise or the minor or the conclusion or occasionally all three are refuted. The major premise is refuted in the following case: I was justified in killing him, as he lay in wait for me. For the very first question in the defence of Milo is whether it is right that he who confesses that he has killed a man should look upon the light of day.

The minor premise is refuted by all the methods which we mentioned in dealing with refutation. As to the reason it must be pointed out that it is sometimes true when the proposition to which it is attached is not true, but may on the other hand sometimes be false although the proposition is true. For example, Virtue is a good thing is true, but if the reason, Because it brings us wealth, be added, we shall have an instance of a true major premise and a false reason.

With regard to the conclusion, we may either deny its truth when it infers something which does not logically result from the premises, or we may treat it as irrelevant. The truth is denied in the following case: We are justified in killing one who lies in wait for us; for since, like an enemy, he threatens us with violence, we ought to repulse his attack as though he were an enemy: therefore Milo was justified in killing Clodius as an enemy. The conclusion is not valid, since we have not yet proved that Clodius lay in wait for him But the conclusion that we are therefore justified in killing one who lies in wait for us is perfectly true, though irrelevant to the case, for it is not yet clear that Clodius lay in wait for Milo.

But while the major premise and the reason may both be true and the conclusion false, yet if both are false, the conclusion can never be true.

Some call the enthymeme a rhetorical syllogism, while others regard it as a part of the syllogism, because whereas the latter always has its premises and conclusion and effects its proof by the employment of all its parts, the ethymeme is content to let its proof be understood without explicit statement.

The following is an example of a syllogism: Virtue is the only thing that is good, for that alone is good which no one can put to a bad use: but no one can make a bad use of virtue; virtue therefore is good. The enthymeme draws its conclusion from denial of consequents. Virtue is a good thing because no one can put it to a bad use. On the other hand take the following syllogism. Money is not a good thing; for that is not good which can be put to a bad use: money may be put to a bad use; therefore money is not a good thing. The enthymeme draws its conclusion from incompatibles. Can money be a good thing when it is possible to put it to a bad use?

The following argument is couched in syllogistic form: If money in the form of silver coin is silver, the man who bequeathed all his silver to a legatee, includes all money in the form of coined silver: but he bequeathed all his silver: therefore he included in the bequest all money in the form of coined silver. But for the orator it will be sufficient to say, Since he bequeathed all his silver, he included in his bequest all his silver money.

I think I have now dealt with all the precepts of those who treat oratory as a mystery. But these rules still leave scope for free exercise of the judgment. For although I consider that there are occasions when the orator may lawfully employ the syllogism, I am far from desiring him to make his whole speech consist of or even be crowded with a mass of epicheiremes and enthymemes. For a speech of that character would resemble dialogues and dialectical controversies rather than pleadings of the kind with which we are concerned, and there is an enormous difference between the two.

For in the former we are confronted with learned men seeking for truth among men of learning; consequently they subject everything to a minute and scrupulous inquiry with a view to arriving at clear and convincing truths, and they claim for themselves the tasks of invention and judgment, calling the former τοπική or the art of selecting the appropriate material for treatment, and the latter κριτική or the art of criticism.

We on the other hand have to compose our speeches for others to judge, and have frequently to speak before an audience of men who, if not thoroughly ill-educated, are certainly ignorant of such arts as dialectic: and unless we attract them by the charm of our discourse or drag them by its force, and occasionally throw them off their balance by an appeal to their emotions, we shall be unable to vindicate the claims of truth and justice.

Eloquence aims at being rich, beautiful and commanding, and will attain to none of these qualities if it be broken up into conclusive inferences which are generally expressed in the same monotonous form: on the contrary its meanness will excite contempt, its severity dislike, its elaboration satiety, and its sameness boredom.

Eloquence therefore must not restrict itself to narrow tracks, but range at large over the open fields. Its streams must not be conveyed through narrow pipes like the water of fountains, but flow as mighty rivers flow, filling whole valleys; and if it cannot find a channel it must make one for itself. For what can be more distressing than to be fettered by petty rules, like children who trace the letters of the alphabet which others have first written for them, or, as the Greeks say, insist on keeping the coat their mother gave them. Are we to have nothing but premises and conclusions from consequents and incompatibles? Must not the orator breathe life into the argument and develop it?

Must lie not vary and diversify it by a thousand figures, and do all this in such a way that it seems to come into being as the very child of nature, not to reveal an artificial manufacture and a suspect art nor at every moment to show traces of an instructor's hand? What orator ever spoke thus? Even in Demosthenes we find but few traces of such a mechanism. And yet the Greeks of to-day are even more prone than we are (though this is the only point in which their practice is worse than ours) to bind their thoughts in fetters and to connect them by an inexorable chain of argument, making inferences where there was never any doubt, proving admitted facts and asserting that in so doing they are following the orators of old, although they always refuse to answer the question who it is that they are imitating. However of figures I shall speak elsewhere.

For the present I must add that I do not even agree with those who hold that arguments should always be expressed in language which is not only pure, lucid and distinct, but also as free as possible from all elevation and ornateness. I readily admit that arguments should be distinct and clear, and further that in arguments of a minor character the language and words should be as appropriate and as familiar as possible.

But if the subject be one of real importance every kind of ornament should be employed, so long as it does nothing to obscure our meaning. For metaphor will frequently throw a flood of light upon a subject: even lawyers, who spend so much trouble over the appropriateness of words, venture to assert that the word litus is derived from eludere, because the shore is a place where the waves break in play.

Further, the more unattractive the natural appearance of anything, the more does it require to be seasoned by charm of style: moreover, an argument is often less suspect when thus disguised, and the charm with which it is expressed makes it all the more convincing to our audience. Unless indeed we think that Cicero was in error when he introduced phrases such as the following into an argumentative passage: The laws are silent in the midst of arms, and A sword is sometimes placed in our hands by the laws themselves. However, we must be careful to observe a happy mean in the employment of such embellishments, so that they may prove a real ornament and not a hindrance.