The Orations of Marcus Tullius Cicero, Volume 4

by Marcus Tullius Cicero

It will be proper to deal with this kind of cause by reference to these topics, and to employ the principles of, and rules for the other statements of cases also. And especially to employ conjectures for the purpose of invalidating that which those who are accused will compare with the act which is alleged against them as a crime. And that will be done if either that result which the advocates for the defence say would have happened unless that action had been performed which is now brought before the court, be denied to have been likely to ensue; or if it can be proved that it was done with a different object and in a different manner from that stated by the man who is on his trial. The confirmation of that statement, and also the argument used by the opposite party to invalidate it, must both be derived from the conjectural statement of the case. But if the accused person is brought before the court, because of his action coming under the name of some particular crime, (as is the case in this instance, for the man is prosecuted for treason), it will be desirable to employ a definition and the rules for a definition.

XXV. And this usually takes place in this kind of examination, so that it is desirable to employ both conjecture and definition. But if any other kind of inquiry arises, it will be allowable on similar principles to transfer to it the rules for that kind of inquiry. For the accuser must of all things take pains to invalidate, by as many reasons as possible, the very fact on account of which the person on his trial thinks that it is granted to him that he was right. And it is easy to do so, if he attempts to overturn that argument by as many statements of the case as he can employ.

But comparison itself, when separated from the other kinds of discussion, will be considered according to its own intrinsic power, if that which is mentioned in the comparison is shown, either not to have been honourable, or not to have been useful, or not to have been necessary, or not so greatly useful, or not so very honourable, or not so exceedingly necessary.

In the next place it is desirable for the accuser to separate the action which he himself is accusing, from that which the advocate for the defence compares with it. And he will do that if he shows that it is not usually done in such a manner, and that it ought not to be done so, and that there is no reason why this thing should be done on this account; for instance, that those things which have been provided for the sake of safety, should be surrendered to the enemy for the sake of safety. Afterwards it will be desirable to compare the injury with the benefit, and altogether to compare the action which is impeached with that which is praised by the advocate for the defence or which is attempted to be proved as what must inevitably have ensued, and then, by disparaging the one at the same time to exaggerate the importance of the mischief caused by the other. That will be effected if it be shown that that which the person on his trial avoided was more honourable, more advantageous, and more necessary than that which he did. But the influence and character of what is honourable, and useful, and necessary, will be ascertained in the rules given for deliberation.

In the next place, it will be desirable to explain that comparative kind of judicial decision as if it were a deliberative cause and then afterwards to discuss it by the light thrown on it by rules for deliberation. For let this be the question for judicial decision which we have already mentioned—"As all the soldiers would have been lost if they had not come to this agreement, was it better for the soldiers to be lost, or to come to this agreement?" It will be desirable that this should be dealt with with reference to the topics concerning deliberation, as if the matter were to come to some consultation.

XXVI. But the advocate for the defence will take the topics in accordance with which other statements of the case are made by the accuser, and will prepare his own defence from those topics with reference to the same statements. But all other topics which belong to the comparison, he will deal with in the contrary manner.

The common topics will be these,—the accuser will press his charges against the man who confesses some discreditable or pernicious action, or both, but still seeks to make some defence, and will allege the mischievous or discreditable nature of his conduct with great indignation. The advocate for the defence will insist upon it, that no action ought to be considered pernicious or discreditable, or, on the other hand, advantageous or creditable, unless it is ascertained with what intention, at what time, and on what account it was done. And this topic is so common, that if it is well handled in this cause it is likely to be of great weight in convincing the hearers. And there is another topic, by means of which the magnitude of the service done is demonstrated with very great amplification, by reference to the usefulness, or honourableness, or necessity of the action. And there is a third topic, by means of which the matter which is expressed in words is placed before the eyes of those men who are the hearers, so that they think that they themselves also would have done the same things, if the same circumstances and the same cause for doing so had happened to them at the same time.

The retorting of a charge takes place, when the accused person, having confessed that of which he is accused, says that he did it justifiably, being induced by the sin committed against him by the other party. As in this case—"Horatius, when he had slain the three Curiatii and lost his two brothers, returned home victorious. He saw his sister not troubled about the death of her brothers, but at the same time calling on the name of Curiatius, who had been betrothed to her, with groans and lamentation. Being indignant, he slew the maid". He is prosecuted.

The charge is, "You slew your sister wrongfully". The refutation is "I slew her lawfully". The question is, "Whether he slew her lawfully". The reason is, "Yes, for she was lamenting the death of enemies, and was indifferent to that of her brothers, she was grieved that I and the Roman people were victorious". The argument to invalidate this reason is, "Still she ought not to have been put to death by her brother without being convicted". On this the question for the decision of the judges is, "Whether when Horatia was showing her indifference to the death of her brothers, and lamenting that of the enemy, and not rejoicing at the victory of her brother and of the Roman people, she deserved to be put to death by her brother without being condemned".

XXVII For this kind of cause, in the first place, whatever is given out of the other statements of cases ought to be taken, as has been already enjoined when speaking of comparison. After that, if there is any opportunity of doing so, some statement of the case ought to be employed by which he to whom the crime is imputed may be defended. In the next place, we ought to argue that the fault which the accused person is imputing to another, is a lighter one than that which he himself committed; in the next place, we ought to employ some portion of a demurrer, and to show by whom, and through whose agency, and how, and when that matter ought to have been tried, or adjudged, or decided. And at the same time, we ought to show that it was not proper that punishment should have been inflicted before any judgment was pronounced. Then we must also point out the laws and the course of judicial proceeding by which that offence which the accused person punished of his own accord, might have been chastised according to precedent, and by the regular course of justice. In the next place, it will be right to deny that it is proper to listen to the charge which is brought by the accused person against his victim, when he who brings it did not choose to submit it to the decision of the judges, and it may be urged that one ought to consider that on which no decision has been pronounced, as if it had not been done, and after that to point out the impudence of those men who are now before the judges accusing the man whom they themselves condemned without consulting the judges, and are now bringing him to trial on whom they have already inflicted punishment. After this we may say that it is bringing irregularity into the courts of justice, and that the judges will be advancing further than their power authorizes them, if they pronounce judgment at the same time in the case of the accused person, and of him whom the accused person impeaches. And in the next place, we may point out if this rule is established, and if men avenge one offence by another offence, and one injury by another injury, what vast inconvenience will ensue from such conduct, and that if the person who is now the prosecutor had chosen to do so too, there would have been no need of this trial at all, and that if every one else were to do so, there would be an end of all courts of justice.