The Orations of Marcus Tullius Cicero, Volume 4

by Marcus Tullius Cicero

VIII. But we must employ partition in such a manner as to omit no part whatever. As if you wish to partition guardianship, you would act ignorantly if you were to omit any kind. But if you were partitioning off the different formulas of stipulations or judicial decisions, then it is not a fault to omit something in a matter which is of boundless extent. But in division it is a fault; for there is a settled number of species which are subordinate to each genus. The distribution of the parts is often more interminable still, like the drawing streams from a fountain. Therefore in the art of an orator, when the genus of a question is once laid down, the number of its species is added absolutely; but when rules are given concerning the embellishments of words and sentences, which are called [Greek: schaemata], the case is different; for the circumstances are more infinite: so that it may be understood from this also what the difference is which we assert to exist between partition and division. For although the words appear nearly equivalent to one another still, because the things are different, the expressions are also established as not synonymous to one another.

Many arguments are also derived from observation, and that is when they are deduced from the meaning of a word, which the Greeks call [Greek: etumologia]; or as we might translate it, word for word, veriloquium. But we, while avoiding the novel appearance of a word which is not very suitable, call this kind of argument notatio, because words are the notes by which we distinguish things. And therefore Aristotle calls the same source of argument [Greek: sunbolou], which is equivalent to the Latin nota. But when it is known what is meant we need not be so particular about the name. In a discussion then, many arguments are derived from words by means of observation; as when the question is asked, what is a postliminium—(I do not mean what are the objects to which this word applies, for that would be division, which is something of this sort: "Postliminium applies to a man, a ship, a mule with panniers, a horse, a mare who is accustomed to be bridled")—but when the meaning of the word itself, postliminium, is asked, and when the word itself is observed. And in this our countryman, Servius, as it seems, thinks that there is nothing to be observed except post, and he insists upon it that liminium is a mere extension of the word; as in finitimus, legitimus, ceditimus, timus has no more meaning than tullius has in meditullius.

But Scaevola, the son of Publius Scaeaevola, thinks the word is a compound one, so that it is made up of post and limen. So that those things which have been alienated from us, when they have come into the possession of our enemies, and, as it were, departed from their own threshold, then when they have returned behind that same threshold, appear to have returned postliminio. By which definition even the cause of Mancinus may be defended by saying that he returned postliminio,—that he was not surrendered, inasmuch as he was not received. For that no surrender and no gift can be understood to have taken place if there has been no reception of it.

IX. We next come to that topic which is derived from those things which are disposed in some way or other to that thing which is the subject of discussion. And I said just now that it was divided into many parts. And the first topic is derived from combination, which the Greeks call [Greek: sizugia], being a kindred thing to observation, which we have just been discussing, as, if we were only to understand that to be rain-water which we saw to have been collected from rain, Mucius would come, who, because the words pluna and pluendo were akin, would say that all water ought to be kept out which had been increased by raining. But when an argument is derived from a genus, then it will not be necessary to trace it back to its origin, we may often stop on this side of that point, provided that which is deduced is higher than that for which it is deduced, as, "Rain water in its ultimate genus is that which descends from heaven and is increased by showers," but in reference to its more proximate sense, under which the right of keeping it off is comprised, the genus is, mischievous rain water. The subordinate species of that genus are waters which injure through a natural defect of the place, or those which are injurious on account of the works of man: for one of these kinds may be restrained by an arbitrator, but not the other.

Again, this argumentation is handled very advantageously, which is derived from a species when you pursue all the separate parts by tracing them back to the whole, in this way "If that is dolus malus when one thing is aimed at, and another pretended," we may enumerate the different modes in which that can be done, and then under some one of them we may range that which we are trying to prove has been done dolo malo. And that kind of argument is usually accounted one of the most irrefragable of all.

X. The next thing is similarity, which is a very extensive topic, but one more useful for orators and for philosophers than for men of your profession. For although all topics belong to every kind of discussion, so as to supply arguments for each, still they occurs more abundantly in discussions on some subjects, and more sparingly in others. Therefore the genera are known to you, but when you are to employ them the questions themselves will instruct you. For there are resemblances which by means of comparisons arrive at the point they aim at, in this manner. "If a guardian is bound to behave with good faith, and a partner, and any one to whom you have entrusted anything, and any one who has undertaken a trust then so ought an agent." This argument, arriving at the point at which it aims by a comparison of many instances, is called induction, which in Greek is called [Greek: ipago]. and it is the kind of argument which Socrates employed a great deal in his discourses.

Another kind of resemblance is obtained by comparison, when one thing is compared to some other single thing, and like to like, in this way "As if in any city there is a dispute as to boundaries because the boundaries of fields appear more extensive than those of cities, you may find it impossible to bring an arbitrator to settle the question of boundaries, so if rain water is injurious in a city, since the whole matter is one more for country magistrates, you may not be able to bring an arbitrator to settle the question of keeping off rain-water" Again, from the same topic of resemblance, examples are derived, as, "Crassus in Cunus's trial used many examples, speaking of the man who by his will had appointed his heir in such a manner, that if he had had a son born within ten months of his death, and that son had died before coming into possession of the property held in trust for him, the revisionary heir would succeed to the inheritance. And the enumeration of precedents which Crassus brought forward prevailed". And you are accustomed to use this style of argument very frequently in replies. Even fictitious examples have all the force of real ones, but they belong rather to the orator than to you lawyers, although you also do use them sometimes, but in this way. "Suppose a man had given a slave a thing which a slave is by law incapable of receiving, is it on that account the act of the man who received it? or has he, who gave that present to his slave on that account taken any obligations on himself?" And in this kind of argument orators and philosophers are allowed to make even dumb things talk, so that the dead man be raised from the shades below, or that anything which intrinsically is absolutely impossible, may, for the sake of adding force to the argument, or diminishing, be spoken of as real and that figure is called hyperbole. And they may say other marvellous things, but theirs is a wider field. Still, out of the same topics, as I have said before, arguments are derived for the most important and the most trivial inquiries.

XI After similarity there follows difference between things, which is as different as possible from the preceding topic, still it is the same art which finds out resemblances and dissimilarities. These are instances of the same sort—"If you have contracted a debt to a woman, you can pay her without having recourse to a trustee, but what you owe to a minor, whether male or female; you cannot pay in the same manner."

The next topic is one which is derived from contraries. But the genera of contraries are several. One is of such things as differ in the same kind; as wisdom and jolly. But those things are said to be in the same kind, which, when they are proposed, are immediately met by certain contraries, as if placed opposite to them: as slowness is contrary to rapidity, and not weakness. From which contraries such arguments as these are deduced:—"If we avoid folly, let us pursue wisdom; and if we avoid wickedness, let us pursue goodness." These things, as they are contrary qualities in the same class, are called opposites. For there are other contraries, which we may call in Latin, privantia, and which the Greeks call [Greek: steraetika]. For the preposition in deprives the word of that force which it would have if in were not prefixed; as, "dignity, indignity—humanity, inhumanity," and other words of the same kind, the manner of dealing with which is the same as that of dealing with other kinds which I have called opposites. For there are also other kinds or contraries; as those which are compared to something or other; as, "twofold and simple; many and few; long and short; greater and less." There are also those very contrary things which are called negatives, which the Greeks call [Greek: steraetika]: as, "If this is the case, that is not." For what need is there for an instance? only let it be understood that in seeking for an argument it is not every contrary which is suitable to be opposed to another.

XII. But I gave a little while ago an instance drawn from adjuncts; showing that many things are added as accessories, which ought to be admitted, if we decided that possession ought to be given by the praetor's edict, in compliance with the will which that person made who had no right whatever to make a will. But this topic has more influence in conjectural causes, which are frequent in courts, of justice, when we are inquiring either what is, or what has been, or what is likely to be, or what possibly may happen. And the form of the topic itself is as follows. But this topic reminds us to inquire what happened before the transaction of which we are speaking, or at the same time with the transaction, or after the transaction. "This has nothing to do with the law, you had better apply to Cicero," our friend Gallus used to say, if any one brought him any cause which required an inquiry into matters of fact. But you will prefer that no topic of the art which I have begun to treat of should be omitted by me, lest if you should think that nothing was to be written here except what had reference to yourself, you should seem to be too selfish. This then is for the most part an oratorical topic; not only not much suited to lawyers, but not even to philosophers. For the circumstances which happened before the matter in question are inquired into, such as any preparation, any conferences, any place, any prearranged convivial meeting. And the circumstances which happened at the same time with the matter in question, are the noise of footfalls, the noise of men, the shadow of a body, or anything of that sort. The circumstances subsequent to the matter in question are, blushing, paleness, trepidation, or any other tokens of agitation or consciousness; and besides these, any such fact as a fire extinguished, a bloody sword, or any circumstance which can excite a suspicion of such an act.