The Orations of Marcus Tullius Cicero, Volume 4

by Marcus Tullius Cicero

C.P. With respect to that the rules which are given are common to the accuser and the defender. For whichever of them by his definition and description of a word makes the greatest impression on the feelings and opinions of the judges, and whichever keeps nearest to the general meaning of the word, and to that preconceived opinion which those who are the hearers have adopted in their minds, must inevitably get the better in the discussion. For this kind of topic is not handled by a regular argumentation, but by shaking out, as it were, and unfolding the word; so that, if, for instance, in the case of a criminal acquitted through bribery and then impeached a second time, the accuser were to define prevarication to be the utter corruption of a tribunal by an accused person; and the defender were to urge a counter definition, that it is not every sort of corruption which is prevarication, but only the bribing of a prosecutor by a defendant: then, in the first place, there would be a contest between the different alleged meanings of the word; in which case, though the definition, if given by the speaker for the defence, approaches nearest to general usage and to the sense of common conversation, still the accuser relies on the spirit of the law, for he says that it ought not to be admitted that those men who framed the laws considered a judicial decision as ratified when wholly corrupt, but that if even one judge be corrupted, the decision should be annulled. He relies on equity; he urges that the law ought to have been framed differently, if that was what was meant; but that the truth is, that whatever kinds of corruption could possibly exist were all meant to be included under the one term prevarication. But the speaker for the defence will bring forward on his side the usage of common conversation; and he will seek the meaning of the word from its contrary; from a genuine accuser, to whom a prevarication is the exact opposite; or from consequents, because the tablets are given to the judge by the accuser; and from the name itself, which signifies a man who in contrary causes appears to be placed, as it were, in various positions. But still he himself will be forced to have recourse to topics of equity, to the authority of precedents, and to some dangerous result. And this may be a general rule, that when each has stated his definition, keeping as accurately as he can to the common sense and meaning of the word, he should then confirm his own meaning and definition by similar definitions, and by the examples of those men who have spoken in the same way.

And in this kind of cause that will be a common topic for the accuser,—that it must never be permitted that the man who confesses a fact, should defend himself by a new interpretation of the name of it. But the defender must rely on those general principles of equity which I have mentioned, and he must complain that, while that is on his side, he is weighed down not by facts, but by the perverted use of a word; and while speaking thus he will be able to introduce many topics suited to aid him in discovering arguments. For he will avail himself of resemblances, and contrarieties, and consequences; and although both parties will do this, still the defendant, unless his cause is evidently ridiculous, will do so more frequently. But the things which are in the habit of being said, for the sake of amplification, or in the way of digression, or when men are summing up, are introduced either to excite hatred, or pity, or to work on the feelings of the judges by means of those arguments which have been already given; provided that the importance of the facts, or the envy of men, or the dignity of the parties, will allow of it.

XXXVII. C.F. I understand that. Now I wish to hear you speak of that part which, when the question is what is the character of such and such a transaction, will be suitable both for the accusation and also for the defence.

C.P. In a cause of that kind those who are accused confess that they did the very thing for which they are blamed; but since they allege that they did it lawfully, it is necessary for us to explain the whole principles of law. And that is divided into two principal divisions,—natural law and statute law. And the power of each of these is again distributed into human law and divine law; one of which refers to equity and the other to religion. But the power of equity is two-fold: one part of which is upheld by considerations of what is straightforward, and true, and just, and, as it is said, equitable and virtuous; the other refers chiefly to requiting things done to one suitably,—which in the case of that which is to be requited being a kindness, is called gratitude, but when it is an injury, it is called revenge. And these principles are common both to natural and statute law. But there are also other divisions of law; for there is both the written and the unwritten law,—each of which is maintained by the rights of nations and the customs of our ancestors. Again, written law is divided into public law and private law. Public law is laws, resolutions of the senate, treaties; private law is accounts, covenants, agreements, stipulations.

But those laws which are unwritten, owe their influence either to custom or to some agreement between, and as it were to the common consent of men. And indeed it is in some degree prescribed to us by the laws of nature, that we are to uphold our customs and laws. And since the foundations of equity have been briefly explained in this manner, we ought to meditate carefully, with reference to causes of this kind, on what is to be said in our speeches about nature, and laws, and the customs of our ancestors, and the repelling of injuries, and revenge, and every portion of human rights. If a man has done anything unintentionally, or through necessity, or by accident, which men would not be excused for doing if they did it of their own accord and intentionally, by way of deprecating punishment for the action he should implore pardon and indulgence, founding his petition on many topics of equity. I have now explained as well as I could every kind of controversy, unless there is anything besides which you wish to know.

XXXVIII. C.F. I wish to know that which appears to me to be the only point left,—what is to be done when the discussion turns upon expressions in written documents.

C.P. You are right to ask: for when that is explained I shall have discharged the whole of the task which I have undertaken. The rules then which relate to ambiguity are common to both parties. For each of them will urge that the signification which he himself adopts is the one suited to the wisdom of the framer of the document; each of them will urge that that sense which his adversary says is to be gathered from the ambiguous expression in the writing, is either absurd, or inexpedient, or unjust, or discreditable, or again that it is inconsistent with other written expressions, either of other men, or, if possible, of the same man. And he will urge further that the meaning which he himself contends for is the one which would have been intended by every sensible and respectable man; and that such an one would express himself more plainly if the case were to come over again, and that the meaning which he asserts to be the proper one has nothing in it to which objection can be made, or with which any fault can be found; but that if the contrary meaning is admitted, many vices, many foolish, unjust, and inconsistent consequences must follow. But when it appears that the writer meant one thing and wrote another, then he who relies on the letter of the law must first explain the circumstances of the case, and then recite the law; then he must press his opponent, repeat the law, reiterate it, and ask him whether he denies that that is the expression contained in the writing, or whether he denies the facts of the case. After that he must invoke the judge to maintain the letter of the law. When he has dwelt on this sort of corroborative argument he must amplify his case by praising the law, and attack the audacity of the man who, when he has openly violated it, and confesses that he has done so, still comes forward and defends his conduct. Then he must invalidate the defence when his opponent says that the writer meant one thing and wrote another, and say that it is intolerable that the meaning of the framer of the law should be explained by any one else in preference to the law itself. Why did he write down such words if he did not mean them? Why does the opponent, while he neglects what is plainly written, bring forward what is not written anywhere? Why should he think that men who were most careful in what they wrote are to be convicted of extreme folly? What could have hindered the framer of this law from making this exception which the opponent contends that he intended to make, if he really had intended it? He will then bring forward those instances where the same writer has made a similar exception, or if he cannot do that, at least he will cite cases where others have made similar exceptions. For a reason must be sought for, if it is possible to find one, why this exception was not made in this case. The law must be stated to be likely to be unjust, or useless, or else that there is a reason for obeying part of it, and for abrogating part; it must be that the argument of the opponent and the law are at variance. And then, by way of amplification, it will be proper, both in other parts of the speech, and above all in the peroration, to speak with great dignity and energy about the desirableness of maintaining the laws, and of the danger with which all public and private affairs are threatened.

XXXIX. But he who defends himself by appeals to the spirit and intention of the law, will urge that the force of the law depends on the mind and design of the framer, not on words and letters. And he will praise him for having mentioned no exceptions in his law, so as to leave no refuge for offences, and so as to bind the judge to interpret the intention of the law according to the actions of each individual. Then he must cite instances in which all equity will be disturbed if the words of the law are attended to and not the meaning. Then all cunning and false accusation must be endeavoured to be put before the judge in an odious light, and complaints uttered in a tone of indignation. If the action in question has been done unintentionally, or by accident, or by compulsion, rather than in consequence of any premeditation,—and actions of those kinds we have already discussed,—then it will be well to use the same topics of equity to counteract the effect of the harshness of the language.

But if the written laws contradict one another, then the connexion of art is such, and most of its principles are so connected and linked together, that the rules which we a little while ago laid down for cases of ambiguity, and which have just been given with reference to the letter and spirit of the law, may be all transferred to this third division also. For the topics by which, in the case of an ambiguous expression, we defended that meaning which is favourable to our argument must also be used to defend the law which is favourable to us when there are inconsistent laws. In the next place, we must contrive to defend the spirit of one law, and the letter of the other. And so the rules which were just now given relating to the spirit and letter of the law may all be transferred to this subject.

XL. I have now explained to you all the divisions of oratory which have prevailed, as laid down by the academy to which we are devoted, and if it had not been for that academy they could not have been discovered, or understood, or discussed. For the mere act of division, and of definition, and the distribution of the partitions of a doubtful question, and the understanding the topics of arguments, and the arranging the argumentation itself properly, and the discerning what ought to be assumed in arguing, and what follows from what has been assumed, and the distinguishing what is true from what is false, and what is probable from what is incredible, and refuting assumptions which are not legitimate, or which are inappropriate, and discussing all these different points either concisely as those do who are called dialecticians, or copiously as an orator should do, are all fruits of the practice in disputing with acuteness and speaking with fluency, which is instilled into the disciples of that academy. And without a knowledge of these most important arts how can an orator have either energy or variety in his discourse, so as to speak properly of things good or bad, just or unjust, useful or useless, honourable or base?