The Orations of Marcus Tullius Cicero, Volume 4

by Marcus Tullius Cicero

XVI. Now we will proceed to explain what common topics are usually available in a conjectural statement of a case. As for instance—that it is proper to place confidence in suspicions, or that it is not proper, that it is proper to believe witnesses, or that it is not proper, that it is proper to believe examinations, or that it is not proper, that it is proper to pay attention to the previous course of a man's life, or that it is not proper, that it is quite natural that a man who has done so and so should have committed this crime also, or that it is not natural, that it is especially necessary to consider the motive, or that it is not necessary. And all these common topics, and any others which arise out of any argument peculiar to the cause in hand, may be turned either way.

But there is one certain topic for an accuser by which he exaggerates the atrocity of an action, and there is another by which he says that it is not necessary to pity the miserable. That, too, is a topic for an advocate for the defence by which the false accusations of the accusers are shown up with indignation, and that by which pity is endeavoured to be excited by complaints. These and all other common topics are derived from the same rules from which the other systems of arguments proceed, but those are handled in a more delicate, and acute, and subtle manner, and these with more gravity, and more embellishment, and with carefully selected words and ideas. For in them the object is, that that which is stated may appear to be true. In these, although it is desirable to preserve the appearance of truth, still the main object is to give importance to the statement. Now let us pass on to another statement of the case.

XVII. When there is a dispute as to the name of a thing because the meaning of a name is to be defined by words, it is called a definitive statement. By way of giving an example of this, the following case may be adduced. Caius Flaminius, who as consul met with great disasters in the second Punic war, when he was tribune of the people, proposed, in a very seditious manner, an agrarian law to the people, against the consent of the senate, and altogether against the will of all the nobles. While he was holding an assembly of the people, his own father dragged him from the temple. He is impeached of treason. The charge is—"You attacked the majesty of the people in dragging down a tribune of the people from the temple." The denial is—"I did not attack the majesty of the people." The question is—"Whether he attacked the majesty of the people or not?" The argument is—"I only used the power which I legitimately had over my own son." The denial of this argument is—"But a man who, by the power belonging to him as a father, that is to say, as a private individual, attacks the power of a tribune of the people, that is to say, the power of the people itself, attacks the majesty of the people." The question for the judges is—"Whether a man attacks the majesty of the people who uses his power as a father in opposition to the power of a tribune?" And all the arguments must be brought to bear on this question.

And, that no one may suppose by any chance that we are not aware that some other statement of the case may perhaps be applicable to this cause, we are taking that portion only for which we are going to give rules. But when all parts have been explained in this book, any one, if he will only attend diligently, will see every sort of statement in every sort of cause, and all their parts, and all the discussions which are incidental to them. For we shall mention them all.

The first topic then for an accuser is a short and plain definition, and one in accordance with the general opinion of men, of that name, the meaning of which is the subject of inquiry. In this manner—"To attack the majesty of the people is to detract from the dignity, or the rank, or the power of the people, or of those men to whom the people has given power." This definition being thus briefly set forth in words, must be confirmed by many assertions and reasons and must be shown to be such as you have described it. Afterwards it will be desirable to add to the definition which you have given, the action of the man who is accused, and to add it too with reference to the character which you have proved it to have. Take for instance—"to attack the majesty of the people." You must show that the adversary does attack the majesty of the people, and you must confirm this whole topic by a common topic, by which the atrocity or indignity of the fact, and the whole guilt of it, and also our indignation at it, may be increased.

After that it will be desirable to invalidate the definition of the adversaries, but that will be invalidated if it be proved to be false. This proof must be deduced from the belief of men concerning it, when we consider in what manner and under what circumstances men are accustomed to use that expression in their ordinary writing or talking. It will also be invalidated if the proof of that description be shown to be discreditable or useless, and if it be shown what disadvantages will ensue if that position be once admitted. And it will be derived from the divisions of honour and usefulness, concerning which we will give rules when we lay down a system of deliberations. And if we compare the definition given by our adversaries with our own definition, and prove our own to be true, and honourable, and useful, and theirs to be entirely different. But we shall seek out things like them in an affair of either greater, or less, or equal importance, from which our description will be proved.

XVIII Now, if there be more matters to be defined,—as for instance, if we inquire whether he is a thief or a sacrilegious person who has stolen sacred vessels from a private house,—we shall have to employ many definitions, and then the whole cause will have to be dealt with on a similar principle. But it is a common topic to dwell on the wickedness of that man who endeavours to wrest to his own purposes not only the effect of things, but also the meaning of words, in order both to do as he pleases, and to call what he does by whatever name he likes.

Then the first topic to be used by an advocate for the defence, is also a brief and plain definition of a name, adopted in accordance with the opinion of men. In this way—To diminish the majesty of the people is to usurp some of the public powers when you are not invested with any office. And then the confirmation of this definition is derived from similar instances and similar principles. Afterwards comes the separation of one's own action from that definition. Then comes the common topic by which the expediency or honesty of the action is increased.

Then comes the reprehension of the definition of the opposite party, which is also derived from all the same topics as those which we have prescribed to the accuser. And afterwards other arguments will be adduced besides the common topic. But that will be a common topic for the advocate of the defence to use, by which he will express indignation that the accuser not only alters facts in order to bring him into danger, but that he attempts also to alter words. For those common topics which are assumed either for the purpose of demonstrating the falsehood of the accusations of the prosecutor, or for exciting pity, or for expressing indignation at an action, or for the purpose of deterring people from showing pity, are derived from the magnitude of the danger, not from the nature of the cause. Wherefore they are incidental not to every cause, but to every description of cause. We have made mention of them in speaking of the conjectural statement of a case, but we shall use induction when the cause requires.

XIX But when the pleading appears to require some translation, or to need any alteration, either because he is not pleading who ought to do so, or he is not pleading with the man he ought, or before the men whom he ought to have for hearers, or in accordance with the proper law, or under liability to the proper punishment, or in reference to the proper accusation, or at the proper time, it is then called a transferable statement of the case. We should require many examples of this if we were to inquire into every sort of translation, but because the principle on which the rules proceed is similar, we have no need of a superfluity of instances. And in our usual practice it happens from many causes that such translations occur but seldom. For many actions are prevented by the exceptions allowed by the praetors, and we have the civil law established in such a way that that man is sure to lose his cause who does not conduct it as he ought. So that those actions greatly depend on the state of the law. For there the exceptions are demanded, and an opportunity is allowed of conducting the cause in some manner, and every formula of private actions is arranged. But in actual trials they occur less frequently, and yet, if they ever do occur at all, they are such that by themselves they have less strength, but they are confirmed by the assumption of some other statement in addition to them. As in a certain trial which took place "When a certain person had been prosecuted for poisoning, and, because he was also accused of parricide, the trial was ordered to proceed out of its regular order, when in the accusation some charges were corroborated by witnesses and arguments, but the parricide was barely mentioned, it was proper for the advocate for the defence to dwell much and long on this circumstance, as, nothing whatever was proved respecting the death of the accused person's parent, and therefore that it was a scandalous thing to inflict that punishment on him which is inflicted on parricides, but that that must inevitably be the case if he were convicted, since that it is added as one of the counts of the indictment, and since it is on that account that the trial has been ordered to be taken out of its regular order. Therefore if it is not right that that punishment should be inflicted on the criminal, it is also not right that he should be convicted, since that punishment must inevitably follow a conviction." Here the advocate for the defence, by bringing the commutation of the punishment into his speech, according to the transferable class of topics, will invalidate the whole accusation. But he will also confirm the alteration by a conjectural statement of the case when employed in defending his client on the other charges.