The Orations of Marcus Tullius Cicero, Volume 4

by Marcus Tullius Cicero

If deliberation and demonstration are kinds of causes, then the divisions of any one kind cannot rightly be considered causes; for the same matter may appear to be a class to one person, and a division to another; but it cannot appear both a class and a division to the same person. But deliberation and demonstration are kinds of argument; for either there is no kind of argument at all, or there is the judicial kind alone, or there are all three kinds, the judicial and the demonstrative and the deliberative. Now, to say there is no kind of argument at the same time that he says that there are many arguments, and is giving precepts for them, is foolishness. How, too, is it possible that there should be one kind only, namely the judicial, when deliberation and demonstration in the first place do not resemble one another, and are exceedingly different from the judicial kind, and have each their separate object to which they ought to be referred. It follows, then, that there are three kinds of arguments. Deliberation and demonstration cannot properly be considered divisions of any kind of argument. He was wrong, therefore, when he said that they were divisions of a general statement of the case.

X. But if they cannot properly be considered divisions of a kind of argument, much less can they properly be considered divisions of a division of an argument. But all statement of the case is a division of an argument. For the argument is not adapted to the statement of the case, but the statement of the case is adapted to the argument. But demonstration and deliberation cannot be properly considered divisions of a kind of argument, because they are separate kinds of arguments themselves. Much less can they properly be considered divisions of that division, as he calls them. In the next place, if the statement of the case, both itself as a whole; and also any portion of that statement, is a repelling of an accusation, then that which is not a repelling of an accusation is neither a statement of a case, nor a portion of a statement of a case; but if that which is not a repelling of an attack is not a statement of a case, nor a portion of a statement of a case, then deliberation and demonstration are neither a statement of a case, nor a portion of a statement of a case. If, therefore, a statement of a case, whether it be the whole statement or some portion of it, be a repelling of an accusation, then deliberation and demonstration are neither a statement of a case, nor any portion of such statement. But he himself asserts that it is a repelling of an accusation. He must therefore assert also that demonstration and deliberation are neither a statement of a case, nor a portion of such a statement. And he will be pressed by the same argument whether he calls the statement of a case the original assertion of his cause by the accuser, or the first speech in answer to such accusation by the advocate of the defence. For all the same difficulties will attend him in either case.

In the next place a conjectural argument cannot, as to the same portion of it, be at the same time both a conjectural one and a definitive one. Again, a definitive argument cannot, as to the same portion of it, be at the same time both a definitive argument and one in the form and character of a demurrer. And altogether, no statement of a case, and no portion of such a statement, can at one and the same time both have its own proper force and also contain the force of another kind of argument. Because each kind of argument is considered simply by its own merits, and according to its own nature; and if any other kind be united with it, then it is the number of statements of a case that is doubled, and not the power of the statement that is increased.

But a deliberative argument, both as to the same portion of it and also at the same time, very frequently has a statement of its case both conjectural, and general, and definitive, and in the nature of a demurrer; and at times it contains only one statement, and at times it contains many such. Therefore it is not itself a statement of the case, nor a division of such statement: and the same thing must be the case with respect to demonstration. These, then, as I have said before, must be considered kinds of argument, and not divisions of any statement of the subject.

XI. This statement of the case then, which we call the general one, appears to us to have two divisions,—one judicial and one relating to matters of fact. The judicial one is that in which the nature of right and wrong, or the principles of reward and punishment, are inquired into. The one relating to matters of fact is that in which the thing taken into consideration is what is the law according to civil precedent, and according to equity; and that is the department in which lawyers are considered by us to be especially concerned.

And the judicial kind is itself also distributed under two divisions,—one absolute, and one which takes in something besides as an addition, and which may be called assumptive. The absolute division is that which of itself contains in itself an inquiry into right and wrong. The assumptive one is that which of itself supplies no firm ground for objection, but which takes to itself some topics for defence derived from extraneous circumstances. And its divisions are four,—concession, removal of the accusation from oneself, a retorting of the accusation, and comparison. Concession when the person on his trial does not defend the deed that has been done, but entreats to be pardoned for it: and this again is divided into two parts,—purgation and deprecation. Purgation is when the fact is admitted, but when the guilt of the fact is sought to be done away. And this may be on three grounds,—of ignorance, of accident, or of necessity. Deprecation is when the person on his trial confesses that he has done wrong, and that he has done wrong on purpose, and nevertheless entreats to be pardoned. But this kind of address can be used but very rarely. Removal of the accusation from oneself is when the person on his trial endeavours by force of argument and by influence to remove the charge which is brought against him from himself to another, so that it may not fix him himself with any guilt at all. And that can be done in two ways,—if either the cause of the deed, or the deed itself, is attributed to another. The cause is attributed to another when it is said that the deed was done in consequence of the power and influence of another; but the deed itself is attributed to another when it is said that another either might have done it, or ought to have done it. The retorting of an accusation takes place when what is done is said to have been lawfully done because another had previously provoked the doer wrongfully. Comparison is, when it is argued that some other action has been a right or an advantageous one, and then it is contended that this deed which is now impeached was committed in order to facilitate the accomplishment of that useful action.

In the fourth kind of statement of a case, which we call the one which assumes the character of a demurrer, that sort of statement contains a dispute, in which an inquiry is opened who ought to be the accuser or pleader, or against whom, or in what manner, or before whom, or under what law, or at what time the accusation ought to be brought forward; or when something is urged generally tending to alter the nature of, or to invalidate the whole accusation. Of this kind of statement of a case Hermagoras is considered the inventor: not that many of the ancient orators have not frequently employed it, but because former writers on the subject have not taken any notice of it, and have not entered it among the number of statements of cases. But since it has been thus invented by Hermagoras, many people have found fault with it, whom we considered not so much to be deceived by ignorance (for indeed the matter is plain enough) as to be hindered from admitting the truth by some envy or fondness for detraction.

XII. We have now then mentioned the different kinds of statements of cases, and their several divisions. But we think that we shall be able more conveniently to give instances of each kind, when we are furnishing a store of arguments for each kind. For so the system of arguing will be more clear, when it can be at once applied both to the general classification and to the particular instance.

When the statement of the case is once ascertained, then it is proper at once to consider whether the argument be a simple or a complex one, and if it be a complex one, whether it is made up of many subjects of inquiry, or of some comparison. That is a simple statement which contains in itself one plain question, in this way—"Shall we declare war against the Corinthians, or not?" That is a complex statement consisting of several questions in which many inquiries are made, in this way.—"Whether Carthage shall be destroyed, or whether it shall be restored to the Carthaginians, or whether a colony shall be led thither." Comparison is a statement in which inquiry is raised in the way of contest, which course is more preferable, or which is the most preferable course of all, in this way.—"Whether we had better send an army into Macedonia against Philip, to serve as an assistance to our allies, or whether we had better retain it in Italy, in order that we may have as numerous forces as possible to oppose to Hannibal." In the next place, we must consider whether the dispute turns on general reasoning, or on written documents, for a controversy with respect to written documents, is one which arises out of the nature of the writing.

XIII And of that there are five kinds which have been separated from statements of cases. For when the language of the writing appears to be at variance with the intention of the writer, then two laws or more seem to differ from one another, and then, too, that which has been written appears to signify two things or more. Then also, from that which is written, something else appears to be discovered also, which is not written, and also the effect of the expressions used is inquired into, as if it were in the definitive statement of the case, in which it has been placed. Wherefore, the first kind is that concerning the written document and the intention of it; the second arises from the laws which are contrary to one another, the third is ambiguous, the fourth is argumentative, the fifth we call definitive.