Марк Туллий Цицерон
The Orations of Marcus Tullius Cicero, Volume 4
And, as we said that this would be exceedingly useful to the man who was relying on the letter of the law, to detract in some degree from that equity which appeared to be on the side of the adversary; so also it will be of the greatest advantage to the man who is speaking in opposition to the letter of the law, to convert something of the exact letter of the law to his own side of the argument, or else to show that something has been expressed ambiguously. And afterwards, to take that portion of the doubtful expression which may serve his own purpose, and defend it; or else to introduce some definition of a word, and to bring over the meaning of that word which seems unfavourable to him to the advantage of his own cause, or else, from what is set down in the law to introduce something which is not set down by means of ratiocination, which we will speak of presently. But in whatever matter, however little probable it may be, he defends himself by an appeal to the exact letter of the law, even when his case is full of equity, he will unavoidably gain a great advantage, because if he can withdraw from the cause of the opposite party that point on which it principally relies, he will mitigate and take off the effect of all its violence and energy. But all the rest of the common topics taken from the divisions of assumptive argument will suit each side of the question. It will also be suitable for him whose argument takes its stand on the letter of the law, to urge that laws ought to be looked at, not with reference to the advantage of that man who has violated them, but according to their own intrinsic value, and that nothing ought to be considered more precious than the laws. On the other side, the speaker will urge, that laws depend upon the intention of the framer of them, and upon the general advantage, not upon words, and also, how scandalous it is for equity to be overwhelmed by a heap of letters, and defended in vain by the intention of the man who drew up the law.
XLIX. But from contrary laws a controversy arises, when two or more laws appear to be at variance with one another In this manner—There is a law, "That he who has slain a tyrant shall receive the regard of men who conquer at Olympia, and shall also ask whatever he pleases of the magistrate, and the magistrate shall grant it to him." There is also another law—"When a tyrant is slain, the magistrate shall also put to death his five nearest relations." Alexander, who was the tyrant of Pherse, a city in Thessaly, was slain by his own wife, whose name was Thebe, at night, when he was in bed with her, she, as a reward, demands the liberty of her son whom she had by the tyrant. Some say that according to this law that son ought to be put to death. The matter is referred to a court of justice. Now in a case of this kind the same topics and the same rules will suit each side of the question, because each party is bound to establish his own law, and to invalidate the one contrary to it. First of all, therefore, it is requisite to show the nature of the laws, by considering which law has reference to more important, that is to say, to more honourable and more necessary matters. From which it results, that if two or more, or ever so many laws cannot all be maintained, because they are at variance with one another, that one ought to be considered the most desirable to be maintained, which appears to have reference to the most important matters. Then comes the question also, which law was passed last; for the newest law is the most important. And also, which law enjoins anything, and which merely allows it; for that which is enjoined is necessary, that which is allowed is optional. Also one must consider by which law a penalty is appointed for the violation of it; or which has the heaviest penalty attached to it; for that law must be the most carefully maintained which is sanctioned by the most severe penalties. Again, one must inquire which law enjoins, and which forbids anything; for it often happens that the law which forbids something appears by some exception as it were to amend the law which commands something. Then, too, it is right to consider which law comprehends the entire class of subjects to which it refers, and which embraces only a part of the question; which may be applied generally to many classes of questions, and which appears to have been framed to apply to some special subject. For that which has been drawn up with reference to some particular division of a subject, or for some special purpose, appears to come nearer to the subject under discussion, and to have more immediate connexion with the present action. Then arises the question, which is the thing which according to the law must be done immediately; which will admit of some delay or slackness in the execution. For it is right that that should be done first which must be done immediately. In the next place, it is well to take pains that the law one is advocating shall appear to depend on its own precise language; and that the law with a contrary sense should appear to be introduced with a doubtful interpretation, or by some ratiocination or definition, in order that that law which is expressed in plain language may appear to be the more solemn and efficient. After that it will be well to add the meaning of the law which is on one's own side according to the strict letter of it; and also to explain the opposite law so as to make it appear to have another meaning, in order that, if possible, they may not seem to be inconsistent with one another. And, last of all, it will be a good thing, if the cause shall afford any opportunity for so doing, to take care that on our principles both the laws may seem to be upheld, but that on the principle contended for by our adversaries one of them must be put aside. It will be well also to consider all the common topics and those which the cause itself furnishes, and to take them from the most highly esteemed divisions of the subjects of expediency and honour, showing by means of amplification which law it is most desirable to adhere to.
L. From ratiocination there arises a controversy when, from what is written somewhere or other, one arrives at what is not written anywhere; in this way:—"If a man is mad, let those of his family and his next of kin have the regulation of himself and of his property." And there is another law—"In whatever manner a head of a family has made his will respecting his family and his property, so let it be." And another law—"If a head of a family dies intestate, his family and property shall belong to his relations and to his next of kin." A certain man was convicted of having murdered his father. Immediately, because he was not able to escape, wooden shoes were put upon his feet, and his mouth was covered with a leathern bag, and bound fast, then he was led away to prison, that he might remain there while a bag was got ready for him to be put into and thrown into a river. In the meantime some of his friends bring tablets to the prison, and introduce witnesses also; they put down those men as his heirs whom he himself desires; the will is sealed; the man is afterwards executed. There is a dispute between those who are set down as his heirs in the will, and his next of kin, about his inheritance. In this instance there is no positive law alleged which takes away the power of making a will from people who are in such a situation. But from other laws, both those which inflict a punishment of this character on a man guilty of such a crime, and those, too, which relate to a man's power of making a will, it is possible to come by means of ratiocination to a conclusion of this sort, that it is proper to inquire whether he had the power of making a will.
But we think that these and such as these are the common topics suitable to an argument of this description. In the first place, a panegyric upon, and a confirmation of that writing which you are producing. Then a comparison of the matter which is the subject of discussion, with that which is a settled case, in such a manner that the case which is under investigation may appear to resemble that about which there are settled and notorious rules. After that, one will express admiration, (by way of comparison), how it can happen that a man who admits that this is fair, can deny that other thing, which is either more equitable still, or which rests on exactly similar principles; then, too, one will contend that the reason why there is no precise law drawn up for such a case, is because, as there was one in existence applicable to the other case, the framer of that law thought that no one could possibly entertain a doubt in this case; and afterwards it will be well to urge that there are many cases not provided for in many laws, which beyond all question were passed over merely because the rule as to them could be so easily collected out of the other cases which were provided for; and last of all, it is necessary to point out what the equity of the case requires, as is done in a plain judicial case.
But the speaker who is arguing on the other side is bound to try and invalidate the comparison instituted, which he will do if he can show that that which is compared is different from that with which it is compared in kind, in nature, in effect, in importance, in time, in situation, in character, in the opinion entertained of it; if it is shown also in what class that which is adduced by way of comparison ought to stand, and in what rank that also ought to be considered, for the sake of which the other thing is mentioned. After that, it will be well to point out how one case differs from the other, so that it does not seem that any one ought to have the same opinion of both of them. And if he himself also is able to have recourse to ratiocination, he must use the same ratiocination which has been already spoken of. If he cannot, then he will declare that it is not proper to consider anything except what is written; that all laws are put in danger if comparisons are once allowed to be instituted; that there is hardly anything which does not seem somewhat like something else; that when there are many circumstances wholly dissimilar, still there are separate laws for each individual case; and that all things can be proved to be like or unlike to each other. The common topics derived from ratiocination ought to arrive by conjecture from that which is written to that which is not written; and one may urge that no one can embrace every imaginable case in a written law, but that he frames a law best who takes care to make one thing understood from another. One may urge, too, that in opposition to a ratiocination of this sort, conjecture is no better than a divination, and that it would be a sign of a very stupid framer of laws not to be able to provide for everything which he wished to.
LI. Definition is when a word is set down in a written document, whose exact meaning is inquired into, in this manner:—There is a law, "Whoever in a severe tempest desert their ship shall be deprived of all their property; the ship and the cargo shall belong to those men who remain by the ship." Two men, when they were sailing on the open sea, and when the ship belonged to one of them and the cargo to another, noticed a shipwrecked man swimming and holding out his hands to them. Being moved with pity they directed the ship towards him, and took the man into their vessel. A little afterwards the storm began to toss them also about very violently, to such a degree that the owner of the ship, who was also the pilot, got into a little boat, and from that he guided the ship as well as he could by the rope by which the boat was fastened to the ship, and so towed along; but the man to whom the cargo belonged threw himself on his sword in despair. On this the shipwrecked man took the helm and assisted the ship as far as he could. But after the waves went down and the tempest abated, the ship arrived in harbour. But the man who had fallen on his sword turned out to be but slightly wounded, and easily recovered of his wound. And then every one of these three men claimed the ship and cargo for his own. Every one of them relies on the letter of the law to support their claim, and a dispute arises as to the meaning of the words. For they seek to ascertain by definitions what is the meaning of the expressions "to abandon the ship," "to stand by the ship," and even what "the ship" itself is. And the question must be dealt with with reference to all the same topics as are employed in a statement of the case which turns upon a definition.
Now, having explained all those argumentations which are adapted to the judicial class of causes, we will proceed in regular order to give topics and rules for the deliberative and demonstrative class of arguments; not that there is any cause which is not at all times conversant with some statement of the case or other; but because there are nevertheless some topics peculiar to these causes, not separated from the statement of the case, but adapted to the objects which are more especially kept in view by these kinds of argumentation.
For it seems desirable that in the judicial kind the proper end is equity; that is to say, some division of honesty. But in the deliberative kind Aristotle thinks that the proper object is expediency; we ourselves, that it is expediency and honesty combined. In the demonstrative kind it is honesty only. Wherefore, in this kind of cause also, some kinds of argumentation will be handled in a common manner, and in similar ways to one another. Some will be discussed more separately with reference to their object, which is what we must always keep in view in every kind of speech. And we should have no objection to give an example of each kind of statement of the case, if we did not see that, as obscure things are made more plain by speaking of them, so also things which are plain are sometimes made more obscure by a speech. At present let us go on to precepts of deliberation.
LII. Of matters to be aimed at there are three classes; and on the other hand there is a corresponding number of things to be avoided. For there is something which of its own intrinsic force draws us to itself, not catching us by any idea of emolument, but alluring us by its own dignity. Of this class are virtue, science, truth. And there is something else which seems desirable, not on account of its own excellence or nature, but on account of its advantage and of the utility to be derived from it—such as money. There are also some things formed of parts of these others in combination, which allure us and draw us after them by their own intrinsic character and dignity, and which also hold out some prospect of advantage to us, to induce us to seek it more eagerly, as friendship, and a fair reputation; and from these their opposites will easily be perceived, without our saying anything about them.
But in order that the principle may be explained in the more simple way, the rules which we have laid down shall be enumerated briefly. For those which belong to the first kind of discussion are called honourable things; those which belong to the second, are called useful things; but this third thing, because it contains some portion of what is honourable, and because the power of what is honourable is the more important part, is perceived to be altogether a compound kind, made up of a twofold division; still it derives its name from its better part, and is called honourable. From this it follows, that there are these parts in things which are desirable,—what is honourable, and what is useful. And these parts in things which are to be avoided,—what is dishonourable, and what is useless. Now to these two things there are two other important circumstances to be added,—necessity and affection: the one of which is considered with reference to force, the other with reference to circumstances and persons. Hereafter we will write more explicitly about each separately. At present we will explain first the principles of what is honourable.
LIII. That which either wholly or in some considerable portion of it is sought for its own sake, we call honourable: and as there are two divisions of it, one of which is simple and the other twofold, let us consider the simple one first. In that kind, then, virtue has embraced all things under one meaning and one name; for virtue is a habit of the mind, consistent with nature, and moderation, and reason. Wherefore, when we have become acquainted with all its divisions, it will be proper to consider the whole force of simple honesty.
It has then four divisions—prudence, justice, fortitude, and temperance. Prudence is the knowledge of things which are good, or bad, or neither good nor bad. Its parts are memory, intelligence, and foresight. Memory is that faculty by which the mind recovers the knowledge of things which have been. Intelligence is that by which it perceives what exists at present. Foresight is that by which anything is seen to be about to happen, before it does happen. Justice is a habit of the mind which attributes its proper dignity to everything, preserving a due regard to the general welfare. Its first principles proceed from nature. Subsequently some practices became established by universal custom, from a consideration of their utility; afterwards the fear of the laws and religion sanctioned proceedings which originated in nature, and had been approved of by custom.
Natural law is that which has not had its origin in the opinions of men, but has been implanted by some innate instinct, like religion, affection, gratitude, revenge, attention to one's superiors, truth. Religion is that which causes men to pay attention to, and to respect with fixed ceremonies, a certain superior nature which men call divine nature. Affection is that feeling under the influence of which kindness and careful attention is paid to those who are united to us by ties of blood, or who are devoted to the service of their country. Gratitude is that feeling in which the recollection of friendship, and of the services which we have received from another, and the inclination to requite those services, is contained. Revenge is that disposition by which violence and injury, and altogether everything which can be any injury to us, is repelled by defending oneself from it, or by avenging it. Attention is that feeling by which men obey when they think those who are eminent for worth or dignity, worthy of some special respect and honour. Truth is that by which those things which are, or which have been previously, or which are about to happen, are spoken of without any alteration.
LIV. Conventional law is a principle which has either derived its origin in a slight degree from nature, and then has been strengthened by habit, like religion; or, if we see any one of those things which we have already mentioned as proceeding from nature strengthened by habit; or, if there is anything to which antiquity has given the force of custom with the approbation of everybody: such as covenants, equity, cases already decided. A covenant is that which is agreed upon between two parties; equity is that which is equally just for every one; a case previously decided is one which has been settled by the authoritative decision of some person or persons entitled to pronounce it.
Legal right is that which is contained in that written form which is delivered to the people to be observed by them.
Fortitude is a deliberate encountering of danger and enduring of labour. Its parts are magnificence, confidence, patience, and perseverance. Magnificence is the consideration and management of important and sublime matters with a certain wide-seeing and splendid determination of mind. Confidence is that feeling by which the mind embarks in great and honourable courses with a sure hope and trust in itself. Patience is a voluntary and sustained endurance, for the sake of what is honourable or advantageous, of difficult and painful labours. Perseverance is a steady and lasting persistence in a well-considered principle.
Temperance is the form and well-regulated dominion of reason over lust and other improper affections of the mind. Its parts are continence, clemency, and modesty. Continence is that by which cupidity is kept down under the superior influence of wisdom. Clemency is that by which the violence of the mind, when causelessly excited to entertain hatred against some one else, is restrained by courtesy. Modesty is that feeling by which honourable shame acquires a valuable and lasting authority. And all these things are to be sought for themselves, even if no advantage is to be acquired by them. And it neither concerns our present purpose to prove this, nor is it agreeable to our object of being concise in laying down our rules.
But the things which are to be avoided for their own sake, are not those only which are the opposites to these; as indolence is to courage, and injustice to justice; but those also which appear to be near to and related to them, but which, in reality, are very far removed from them. As, for instance, diffidence is the opposite to confidence, and is therefore a vice; audacity is not the opposite of confidence, but is near it and akin to it, and, nevertheless, is also a vice. And in this manner there will be found a vice akin to every virtue, and either already known by some particular name—as audacity, which is akin to confidence; pertinacity, which is bordering on perseverance; superstition, which is very near religion,—or in some cases it has no fixed name. And all these things, as being the opposites of what is good, we class among things to be avoided. And enough has now been said respecting that class of honourable things which is sought in every part of it for itself alone.
LV. At present it appears desirable to speak of that in which advantage is combined with honour, and which still we style simply honourable. There are many things, then, which allure us both by their dignity and also by the advantage which may be derived from them: such as glory, dignity, influence, friendship. Glory is the fact of a person's being repeatedly spoken of to his praise; dignity is the honourable authority of a person, combined with attention and honour and worthy respect paid to him. Influence is a great abundance of power or majesty, or of any sort of resource. Friendship is a desire to do service to any one for the sake of the person himself to whom one is attached, combined with a corresponding inclination on his part towards oneself. At present, because we are speaking of civil causes, we add the consideration of advantage to friendship, so that it appears a thing to be sought for the sake of the advantage also: wishing to prevent those men from blaming us who think that we are including every kind of friendship in our definition.
But although there are some people who think that friendship is only to be desired on account of the advantage to be derived from it; some think it is to be desired for itself alone; and some, that it is to be desired both for its own sake and for the sake of the advantage to be derived from it. And which of these statements is the most true, there will be another time for considering. At present it may be laid down, as far as the orator is concerned, that friendship is a thing to be desired on both accounts. But the consideration of the different kinds of friendship, (since they are partly formed on religious considerations, and partly not; and because some friendships are old, and some new; and because some originated in kindness shown by our friends to us, and some in kindness shown by ourselves to them; and because some are more advantageous, and others less,) must have reference partly to the dignity of the causes in which it originates, partly to the occasion when it arises, and also to the services done, the religious motives entertained, and its antiquity.
LVI. But the advantages consist either in the thing itself, or in extraneous circumstances; of which, however, by far the greater portion is referable to personal advantage; as there are some things in the republic which, so to say, refer to the person of the state,—as lands, harbours, money, fleets, sailors, soldiery, allies; by all which things states preserve their safety and their liberty. There are other things also which make a thing more noble looking, and which still are less necessary; as the splendid decorating and enlarging of a city, or an extraordinary amount of wealth, or a great number of friendships and alliances. And the effect of all these things is not merely to make states safe and free from injury, but also noble and powerful. So that there appears to be two divisions of usefulness,—safety and power. Safety is the secure and unimpaired preservation of a sound state. Power is a possession of things suitable to preserving what is one's own, and to acquiring what belongs to another. And in all those things which have been already mentioned, it is proper to consider what is difficult to be done, and what can be done with ease. We call that a thing easy to be done, which can be done without great labour, or expense, or annoyance, or perhaps without any labour, expense, or annoyance at all, and in the shortest possible time. But that we call difficult to be done which, although it requires labour, expense, trouble and time, and has every possible characteristic of difficulty about it, or, at all events, the most numerous and most important ones, still, when these difficulties are encountered, can be completed and brought to an end.
Since, then, we have now discussed what is honourable and what is useful, it remains for us to say a little of those things which we have said are attached to these other things; namely, affection and necessity.
LVII. I think, then, that necessity means that which cannot be resisted by any power; that which cannot be softened nor altered. And that this may be made more plain, let us examine into the meaning of it by the light of examples, so as to see what its character and how great its power is. "It is necessary that anything made of wood must be capable of being burnt with fire. It is necessary that a mortal body should at some time or other die." And it is so necessary, that that power of necessity which we were just now describing requires it; which cannot by any force whatever be either resisted, or weakened, or altered. Necessities of this kind, when they occur in oratory, are properly called necessities; but if any difficult circumstances arise, then we shall consider in the previous examination whether it, the thing in question, be possible to be done. And it seems to me, that I perceive that there are some kinds of necessity which admit of additions, and some which are simple and perfect in themselves. For we say in very different senses:—"It is necessary for the people of Casilinum to surrender themselves to Hannibal;" and, "It is necessary that Casilinum should come into the power of Hannibal." In the one case, that is, in the first case, there is this addition to the proposition:—"Unless they prefer perishing by hunger." For if they prefer that, then it is not necessary for them to surrender. But in the latter proposition such an addition has no place; because whether the people of Casilinum choose to surrender, or prefer enduring hunger and perishing in that manner, still it is necessary that Casilinum must come into the power of Hannibal. What then can be effected by this division of necessity? I might almost say, a great deal, when the topic of necessity appears such as may be easily introduced. For when the necessity is a simple one, there will be no reason for our making long speeches, as we shall not be able by any means to weaken it; but when a thing is only necessary provided we wish to avoid or to obtain something, then it will be necessary to state what advantage or what honour is contained in that addition. For if you will take notice, while inquiring what this contributes to the advantage of the state, you will find that there is nothing which it is necessary to do, except for the sake of some cause which we call the adjunct. And, in like manner, you will find that there are many circumstances of necessity to which a similar addition cannot be made; of such sort are these:—"It is necessary that mortal men should die;" without any addition:—"It is not necessary for men to take food;" with this exception,—"Unless they have an objection to dying of hunger."
Therefore, as I said before, it will be always proper to take into consideration the character of that exception which is added to the original proposition. For it will at all times have this influence, that either the necessity must be explained with reference to what is honourable, in this manner:—"It is necessary, if we wish to live with honour;" or with reference to safety, in this manner:—"It is necessary, if we wish to be safe;" or with reference to convenience, in this manner:—"It is necessary, if we are desirous to live without annoyance."
LVIII. And the greatest necessity of all appears to be that which arises from what is honourable; the next to it is that which arises from considerations of safety; the third and least important is that which has ideas of convenience involved in it. But this last can never be put in comparison with the two former. But it is often indispensable to compare these together; so that although honour is more precious than safety, there is still room to deliberate which one is to consult in the greatest degree. And as to this point, it appears possible to give a settled rule which may be of lasting application. For in whatever circumstances it can happen by any possibility that while we are consulting our safety, that slight diminution of honesty which is caused by our conduct may be hereafter repaired by virtue and industry, then it seems proper to have a regard for our safety. But when that does not appear possible, then we must think of nothing but what is honourable. And so in a case of that sort when we appear to be consulting our safety, we shall be able to say with truth that we are also keeping our eyes fixed on what is honourable, since without safety we can never attain to that end. And in these circumstances it will be desirable to yield to another, or to put oneself in another's place, or to keep quiet at present and wait for another opportunity. But when we are considering convenience, it is necessary to consider this point also,—whether the cause, as far as it has reference to usefulness, appears of sufficient importance to justify us in taking anything from splendour or honour. And while speaking on this topic, that appears to me to be the main thing, that we should inquire what that is which, whether we are desirous of obtaining or avoiding it, is something necessary; that is to say, what is the character of the addition; in order that, according as the matter is found to be, so we may exert ourselves, and consider the most important circumstances as being also the most necessary.