The Orations of Marcus Tullius Cicero, Volume 4

by Marcus Tullius Cicero

At present we will begin with the conjectural statement of a case of which this example may be sufficient to be given—A man overtook another on his journey as he was going on some commercial expedition, and carrying a sum of money with him, he, as men often do entered into conversation with him on the way, the result of which was, that they both proceeded together with some degree of friendship, so that when they had arrived at the same inn, they proposed to sup together and to sleep in the same apartment. Having supped, they retired to rest in the same place. But when the innkeeper (for that is what is said to have been discovered since, after the man had been detected in another crime) had taken notice of one of them, that is to say, of him who had the money, he came by night, after he had ascertained that they were both sound asleep, as men usually are when tired, and took from its sheath the sword of the one who had not the money, and which sword he had lying by his side and slew the other man with it and took away his money, and replaced the bloody sword in the sheath, and returned himself to his bed.

But the man with whose sword the murder had been committed, rose long before dawn and called over and over again on his companion; he thought that he did not answer because he was overcome with sleep; and so he took his sword and the rest of the things which he had with him, and departed on his journey alone. The innkeeper not long afterwards raised an outcry that the man was murdered, and in company with some of his lodgers pursued the man who had gone away. They arrest him on his journey, draw his sword out of its sheath, and find it bloody, the man is brought back to the city by them, and put on his trial. On this comes the allegation of the crime, "You murdered him," and the denial, "I did not murder him," and from this is collected the statement of the case. The question in the conjectural examination is the same as that submitted to the judges, "Did he murder him, or not?"

V. Now we will set forth the topics one portion of which applies to all conjectural discussion. But it will be desirable to take notice of this in the exposition of these topics and of all the others, and to observe that they do not all apply to every discussion. For as every man's name is made up of some letters, and not of every letter, so it is not every store of arguments which applies to every argumentation, but some portion which is necessary applies to each. All conjecture, then, must be derived either from the cause of an action, or from the person, or from the case itself.

The cause of an action is divided into impulsion and ratiocination. Impulsion is that which without thought encourages a man to act in such and such a manner, by means of producing some affection of the mind, as love, anger, melancholy, fondness for wine, or indeed anything by which the mind appears to be so affected as to be unable to examine anything with deliberation and care, and to do what it does owing to some impulse of the mind, rather than in consequence of any deliberate purpose.

But ratiocination is a diligent and careful consideration of whether we shall do anything or not do it. And it is said to have been in operation, when the mind appears for some particular definite reason to have avoided something which ought not to have been done, or to have adopted something which ought to have been done, so that if anything is said to have been done for the sake of friendship, or of chastising an enemy, or under the influence of fear, or of a desire for glory or for money, or in short, to comprise everything under one brief general head, for the sake of retaining, or increasing, or obtaining any advantage; or, on the other hand, for the purpose of repelling, or diminishing, or avoiding any disadvantage;—for those former things must fall under one or other of those heads, if either any inconvenience is submitted to for the purpose of avoiding any greater inconvenience, or of obtaining any more important advantage; or if any advantage is passed by for the sake of obtaining some other still greater advantage, or of avoiding some more important disadvantage.

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

VI. But when the orator says that any one has done such and such an action, not through impulse, but in consequence of deliberate reasoning, he will then point out what advantage he has aimed at, or what inconvenience he has avoided, and he will exaggerate the influence of those motives as much as he can, so that as far as possible the cause which led the person spoken of to do wrong, may appear to have been an adequate one. If it was for the sake of glory that he did so and so, then he will point out what glory he thought would result from it; again, if he was influenced by desire of power, or riches, or by friendship, or by enmity; and altogether whatever the motive was, which he says was his inducement to the action, he will exaggerate as much as possible.

And he is bound to give great attention to this point, not only what the effect would have been in reality, but still more what it would have been in the opinion of the man whom he is accusing. For it makes no difference that there really was or was not any advantage or disadvantage, if the man who is accused believed that there would or would not be such. For opinion deceives men in two ways, when either the matter itself is of a different kind from that which it is believed to be, or when the result is not such as they thought it would be. The matter itself is of a different sort when they think that which is good bad, or, on the other hand, when they think that good which is bad. Or when they think that good or bad which is neither good nor bad, or when they think that which is good or bad neither bad nor good.

Now that this is understood, if any one denies that there is any money more precious or sweeter to a man than his brother's or his friend's life, or even than his own duty, the accuser is not to deny that; for then the blame and the chief part of the hatred will be transferred to him who denies that which is said so truly and so piously. But what he ought to say is, that the man did not think so; and that assertion must be derived from those topics which relate to the person, concerning whom we must speak hereafter.

VII. But the result deceives a person, when a thing has a different result from that which the persons who are accused are said to have thought it would have. As when a man is said to have slain a different person from him whom he intended to slay, either because he was deceived by the likeness or by some suspicion, or by some false indication; or that he slew a man who had not left him his heir in his will, because he believed that he had left him his heir. For it is not right to judge of a man's belief by the result, but rather to consider with what expectation, and intention, and hope he proceeded to such a crime; and to recollect that the matter of real importance is to consider with what intention a man does a thing, and not what the consequence of his action turns out to be.