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This treatise was written a short time before the events which gave rise to the first Philippic. Cicero obtained an honorary lieutenancy, with the intention of visiting his son at Athens; on his way towards Rhegium he spent an evening at Velia with Trebatius, where he began this treatise, which he finished at sea, before he arrived in Greece. It is little more than an abstract of what had been written by Aristotle on the same subject, and which Trebatius had begged him to explain to him; and Middleton says, that as he had not Aristotle's essay with him, he drew this up from memory, and he appears to have finished it in a week, as it was the nineteenth of July that he was at Velia, and he sent this work to Trebatius from Rhegium on the twenty-seventh. He himself apologizes to Trebatius in the letter which accompanied it, (Ep. Fam. vii. 19,) for its obscurity, which, however, he says, was unavoidably caused by the nature of the subject.
I. We had begun to write, O Caius Trebatius, on subjects more important and more worthy of these books, of which we have published a sufficient number in a short time, when your request recalled me from my course. For when you were with me in my Tusculan villa, and when each of us was separately in the library opening such books as were suited to our respective tastes and studies, you fell on a treatise of Aristotle's called the Topics; which he has explained in many books; and, excited by the title, you immediately asked me to explain to you the doctrines laid down in those books. And when I had explained them to you, and told you that the system for the discovery of arguments was contained in them, in order that we might arrive, without making any mistake, at the system on which they rested by the way discovered by Aristotle, you urged me, modestly indeed, as you do everything, but still in a way which let me plainly see your eagerness to be gratified, to make you master of the whole of Aristotle's method. And when I exhorted you, (not so much for the sake of saving myself trouble, as because I really thought it advantageous for you yourself,) either to read them yourself, or to get the whole system explained to you by some learned rhetorician, you told me that you had already tried both methods. But the obscurity of the subject deterred you from the books; and that illustrious rhetorician to whom you had applied answered you, I suppose, that he knew nothing of these rules of Aristotle. And this I was not so much surprised at, namely, that that philosopher was not known to the rhetorician, inasmuch as he is not much known even to philosophers, except to a very few.
And such ignorance is the less excusable in them, because they not only ought to have been allured by those things which he has discovered and explained, but also by the incredible richness and sweetness of his eloquence. I could not therefore remain any longer in your debt, since you often made me this request, and yet appeared to fear being troublesome to me, (for I could easily see that), lest I should appear unjust to him who is the very interpreter of the law. In truth, as you had often written many things for me and mine, I was afraid that if I delayed obliging you in this, it would appear very ungrateful or very arrogant conduct on my part. But while we were together, you yourself are the best witness of how I was occupied; but after I left you, on my way into Greece, when neither the republic nor any friends were occupying my attention, and when I could not honourably remain amid the armies, (not even if I could have done so safely,) as soon as I came to Velia and beheld your house and your family, I was reminded of this debt; and would no longer be wanting to your silent request. Therefore, as I had no books with me, I have written these pages on my voyage, from memory; and I have sent them to you while on my journey, in order that by my diligence in obeying your commands, I might rouse you to a recollection of my affairs, although you do not require a reminder. But, however, it is time to come to the object which we have undertaken.
II. As every careful method of arguing has two divisions, --one of discovering, one of deciding,--Aristotle was, as it appears to me, the chief discoverer of each. But the Stoics also have devoted some pains to the latter, for they have diligently considered the methods of carrying on a discussion by that science which they call dialectics; but the art of discovering arguments, which is called topics, and which was more serviceable for practical use, and certainly prior in the order of nature, they have wholly disregarded. But we, since both arts are of the greatest utility, and since we intend to examine each if we have time, will now begin with that which is naturally the first.
As therefore the discovery of those things which are hidden is easy, if the place where they are hidden is pointed out and clearly marked; so, when we wish to examine any argument, we ought to know the topics,--for so they are called by Aristotle, being, as it were, seats from which arguments are derived. Therefore we may give as a definition, that a topic is the seat of an argument, and that an argument is a reason which causes men to believe a thing which would otherwise be doubtful. But of those topics in which arguments are contained, some dwell on that particular point which is the subject of discussion; some are derived from external circumstances. When derived from the subject itself, they proceed at times from it taken as a whole, at times from its parts, at times from some sign, and at others from things which are disposed in some manner or other towards the subject under discussion; but those topics are derived from external circumstances which are at a distance and far removed from the same subject.
But a definition is employed with reference to the entire matter under discussion which unfolds the matter which is the subject of inquiry as if it had been previously enveloped in mystery. The formula of that argument is of this sort: "Civil law is equity established among men who belong to the same city, for the purpose of insuring each man in the possession of his property and rights: and the knowledge of this equity is useful: therefore the knowledge of civil law is useful." Then comes the enumeration of the parts, which is dealt with in this manner: "If a slave has not been declared free either by the censor, or by the praetor's rod, or by the will of his master, he is not free: but none of those things is the case: therefore he is not free." Then comes the sign; when some argument is derived from the meaning of a word, in this way:--as the Aelian Sentian law orders an assiduus to support an assiduus, (1)
it orders a rich man to support a rich man, for a rich man is an assiduus, called so, Aelius says, from asse dando.
III. Arguments are also derived from things which bear some kind of relation to that which is the object of discussion. But this kind is distributed under many heads; for we call some connected with one another either by nature, or by their form, or by their resemblance to one another, or by their differences, or by their contrariety to one another, or by adjuncts, or by their antecedents, or by their consequents, or by what is opposed to each of them, or by causes, or by effects, or by a comparison with what is greater, or equal, or less.
Arguments are said to be connected together which are derived from words of the same kind. But words are of the same kind which, originating from one word, are altered in various ways; as "sapiens, sapienter, sapientia." The connexion of these words is called suzugia; from which arises an argument of this kind: "If the land is common, every one has a right to feed his cattle on it."
An argument is derived from the kind of word, thus: "Since all the money has been bequeathed to the woman, it is impossible that that ready money which was left in the house should not have been bequeathed. For the species is never separated from the genus as long as it retains its name: but ready money retains the name of money: therefore it is plain that it was bequeathed."
An argument is derived from the species, which we may sometimes name, in order that it may be more clearly understood, in this manner: "If the money was bequeathed to Fabia by her husband, on the supposition that she was the mother of his family; if she was not his wife, then nothing is due to her." For the wife is the genus: there are two kinds of wife; one being those mothers of a family which become wives by coemptio; the other kind are those which are only considered wives: and as Fabia was one of those last, it appears that nothing was bequeathed to her.
An argument is derived from similarity, in this way: "If those houses have fallen down, or got into disrepair, a life interest in which is bequeathed to some one, the heir is not bound to restore or to repair them, any more than he is bound to replace a slave, if a slave, a life-interest in whom has been bequeathed to some one, has died."
An argument is derived from difference, thus: "It does not follow, if a man has bequeathed to his wife all the money which belonged to hirn, that therefore he bequeathed all which was down in his books as due to him; for there is a great difference whether the money is laid up in his strong box, or set down as due in his accounts."
An argument is derived from contraries, thus: "That woman to whom her husband has left a life-interest in all his property, has no right, if his cellars of wine and oil are left full, to think that they belong to her; for the use of them is what has been bequeathed to her, and not the misuse: and they are contrary to one another."
IV. An argument is derived from adjuncts, thus: "If woman has made a will who has never given up her liberty by marriage, it does not appear that possession ought to be given by the edict of the praetor to the legatee under that will; for it is added, that in that case possession would seem proper to be given by that same edict, according to the wills of slaves, or exiles, or infants."
Arguments are derived from antecedents, and consequents, and contradictories, in this way. From antecedents: "If a divorce has been caused by the fault of the husband, although the woman has demanded it, still she is not bound to leave any of her dowry for her children."
From consequents: "If a woman having married a man with whom she had no right of intermarriage, has demanded a divorce, since the children who have been born do not follow their father, the father has no right to keep back any portion of the woman's dowry."
From contradictories: "If the head of a family has left to his wife in reversion after his son the life-interest in the female slaves, and has made no mention of any other reversionary heir, if the son dies, the woman shall not lose her life-interest. For that which has once been given to any one by will, cannot be taken away from the legatee to whom it has been given without his consent; for it is a contradiction for any one to have a right to receive a thing, and yet to be forced to give it up against his will."
An argument is derived from efficient causes, in this way: "All men have a right to add to a common party wall, a wall extending its whole length, either solid or on arches; but if any one in demolishing the common wall should promise to pay for any damages which may arise from his action, he will not be bound to pay for any damage sustained or caused by such arches: for the damage has been done, not by the party which demolished the common wall, but in consequence of some fault in the work, which was built in such a manner as to be unable to support itself."
An argument is derived from what has been done, in this way: "When a woman becomes the wife of a man, everything which has belonged to the woman now becomes property of the husband under the name of dowry."
But in the way of comparison there are many kinds of valid arguments; in this way: "That which is valid in a greater affair, ought to be valid in a less: so that, if the law does not regulate the limits in the city, still more will it not compel any one to turn off the water in the city." Again, on the other hand: "Whatever is valid in a smaller matter ought to be valid also in a greater one. One may convert the preceding example." Also, "That which is valid in a parallel case ought to be valid in this which is a parallel case." As, "Since the usurpation of a farm depends on a term of two years, the law with respect to houses ought to be the same." But in the law houses are not mentioned, and so they are supposed to come under the same class as all other things, the property in which is determined by one year's use. Equity then must prevail, which requires similar laws in similar cases. (2)
But those arguments which are derived from external circumstances are deduced chiefly from authority. Therefore the Greeks call argumentations of that kind atechnoi, that is, devoid of art. As if you were to answer in this way:--"In the case of some one building a roof for the purpose of covering a common wall, Publius Scaevola asserted that there was no right of carrying that roof so far that the water which ran off it should run on to any part of any building which did not belong to the owner of the roof. This I affirm to be law."
V. By these topics then which have been explained, a means of discovering and proving every sort of argument is supplied, as if they were elements of argument. Have we then said enough up to this point? I think we have, as far at least as you, an acute man and one deeply skilled in law, are concerned. But since I have to deal with a man who is very greedy when the feast in question is one of learning, I will prosecute the subject so that I will rather put forth something more than is necessary, than allow you to depart unsatisfied. As, then, each separate one of those topics which I have mentioned has its own proper members, I will follow them out as accurately as I can; and first of all I will speak of the definition itself.
Definition is a speech which explains that which is defined. But of definitions there are two principal kinds: one, of those things which exist; the other, of those which are understood. The things which I call existing are those which can be seen or touched; as a farm, a house, a wall, a gutter, a slave, an ox, furniture, provisions, and so on; of which kind of things some require at times to be defined by us. Those things, again, I say have no existence, which are incapable of being touched or proved, but which can be perceived by the mind and understood; as if you were to define usucaption, guardianship, nationality, or relationship; all, things which have no body, but which nevertheless have a certain conformation plainly marked out and impressed upon the mind, which I call the notion of them. They often require to be explained by definition while we are arguing about them.
And again, there are definitions by partition, and others by division: by partition, when the matter which is to be defined is separated, as it were, into different members; as if any one were to say that civil law was that which consists of laws, resolutions of the senate, precedents, the authority of lawyers, the edicts of magistrates, custom, and equity. But a definition by division embraces every form which comes under the entire genus which is defined; in this way: "Alienation is the surrender of anything which is a man's private property, or a legal cession of it to men who are able by law to avail themselves of such cession."
VI. There are also other kinds of definitions, but these have no connexion with the subject of this book; we have only got to say what is the manner of expressing a definition. This, then, is what the ancients prescribe: that when you have taken those things which are common to the thing which you wish to define with other things, you must pursue them till you make out of them altogether some peculiar property which cannot be transferred to anything else. As this: "An inheritance is money." Up to this point the definition is common, for there are many kinds of money. Add what follows: "which by somebody's death comes to some one else." It is not yet a definition, for money belonging to the dead can be possessed in many ways without inheritance. Add one word, "lawfully." By this time the matter will appear distinguished from general terms, so that the definition may stand thus:--"An inheritance is money which by somebody's death has lawfully come to some one else." It is not enough yet. Add, "without being either bequeathed by will, or held as some one else's property." The definition is complete. Again, take this:--"Those are gentiles who are of the same name as one another." That is insufficient. "And who are born of noble blood." Even that is not enough. "Who have never had any ancestor in the condition of a slave." Something is still wanting. "Who have never parted with their franchise." This, perhaps, may do. For I am not aware that Scaevola, the pontiff, added anything to this definition. And this principle holds good in each kind of definition, whether the thing to be defined is something which exists, or something which is understood.
VII. But we have shown now what is meant by partition, and by division. But it is necessary to explain more clearly wherein they differ. In partition, there are as it were members; as of a body--head, shoulders, hands, sides, legs, feet, and so on. In division there are forms which the Greeks call ideai; our countrymen who treat of such subjects call them species. And it is not a bad name, though it is an inconvenient one if we want to use it in different cases. For even if it were Latin to use such words, I should not like to say specierum and speciebus. And we have often occasion to use these cases. But I have no such objection to saying formarum and formis; and as the meaning of each word is the same, I do not think that convenience of sound is wholly to be neglected.
Men define genus and species or form in this manner:-- "Genus is a notion relating to many differences. Species is a notion, the difference of which can be referred to the head and as it were fountain of the genus." I mean by notion that which the Greeks call sometimes ennoia, and sometimes prolêpsis. It is knowledge implanted and previously acquired of each separate thing, but one which requires development. Species, then, are those forms into which genus is divided without any single one being omitted; as if any one were to divide justice into law, custom, and equity. A person who thinks that species are the same things as parts, is confounding the art; and being perplexed by some resemblance, he does not distinguish with sufficient acuteness what ought to be distinguished. Often, also, both orators and poets define by metaphor, relying on some verbal resemblance, and indeed not without giving a certain degree of pleasure. But I will not depart from your examples unless I am actually compelled to do so.
Aquillius, then, my colleague and intimate friend, was accustomed, when there was any discussion about shores, (all of which you lawyers insist upon it are public,) to define them to men who asked to whom that which was shore belonged, in this way: "Wherever the waves dashed;" that is, as if a man were to define youth as the flower of a man's age, or old age as the setting of life. Using a metaphor, he departs from the words proper to the matter in hand and to his own art. This is enough as to definition. Let us now consider the other points.
VIII. But we must employ partition in such a manner as to omit no part whatever. As if you wish to partition guardianship, you would act ignorantly if you were to omit any kind. But if you were partitioning off the different formulas of stipulations or judicial decisions, then it is not a fault to omit something in a matter which is of boundless extent. But in division it is a fault; for there is a settled number of species which are subordinate to each genus. The distribution of the parts is often more interminable still, like the drawing streams from a fountain. Therefore in the art of an orator, when the genus of a question is once laid down, the number of its species is added absolutely; but when rules are given concerning the embellishments of words and sentences, which are called schêmata, the case is different; for the circumstances are more infinite: so that it may be understood from this also what the difference is which we assert to exist between partition and division. For although the words appear nearly equivalent to one another still, because the things are different, the expressions are also established as not synonymous to one another.
Many arguments are also derived from observation, and that is when they are deduced from the meaning of a word, which the Greeks call etumologia; or as we might translate it, word for word, veriloquium. But we, while avoiding the novel appearance of a word which is not very suitable, call this kind of argument notatio, because words are the notes by which we distinguish things. And therefore Aristotle calls the same source of argument sumbolon, which is equivalent to the Latin nota. But when it is known what is meant we need not be so particular about the name. In a discussion then, many arguments are derived from words by means of observation; as when the question is asked, what is postliminiun (I do not mean what are the objects to which this word applies, for that would be division, which is something of this sort: "Postliminium applies to a man, a ship, a mule with panniers, a horse, a mare who is accustomed to be bridled")--but when the meaning of the word itself, postliminium, is asked, and when the word itself is observed. And in this our countryman, Servius, as it seems, thinks that there is nothing to be observed except post, and he insists upon it that liminium is a mere extension of the word; as in finitimus, legitimus, oeditimus, timus has no more meaning than tullius has in meditullius.
But Scaevola, the son of Publius Scaevola, thinks the word is a compound one, so that it is made up of post and limen. So that those things which have been alienated from us, when they have come into the possession of our enemies, and, as it were, departed from their own threshold, then when they have returned behind that same threshold, appear to have returned postliminio. By which definition even the cause of Mancinus may be defended by saying that he returned postliminio,--that he was not surrendered, inasmuch as he was not received. For that no surrender and no gift can be understood to have taken place if there has been no reception of it.
IX. We next come to that topic which is derived from those things which are disposed in some way or other to that thing which is the subject of discussion. And I said just now that it was divided into many parts. And the first topic is derived from combination, which the Greeks call suzugia, being a kindred thing to observation, which we have just been discussing; as, if we were only to understand that to be rain-water which we saw to have been collected from rain; Mucius would come, who, because the words pluvia and pluendo were akin, would say that all water ought to be kept out, which had been increased by raining. But when an argument is derived from a genus, then it will not be necessary to trace it back to its origin; we may often stop on this side of that point, provided that which is deduced is higher than that for which it is deduced; as, "Rain-water in its ultimate genus is that which descends from heaven and is increased by showers;" but in reference to its more proximate sense, under which the right of keeping it off is comprised, the genus is, mischievous rain-water. The subordinate species of that genus are waters which injure through a natural defect of the place, or those which are injurious on account of the works of man: for one of these kinds may be restrained by an arbitrator; but not the other.
Again, this argumentation is handled very advantageously, which is derived from a species, when you pursue all the separate parts by tracing them back to the whole; in this way: "If that is dolus malus when one thing is aimed at, and another pretended;" we may enumerate the different modes in which that can be done, and then under some one of them we may range that which we are trying to prove has been done dolo malo. And that kind of argument is usually accounted one of the most irrefragable of all.
X. The next thing is similarity, which is a very extensive topic; but one more useful for orators and for philosophers than for men of your profession. For although all topics belong to every kind of discussion, so as to supply arguments for each, still they occur more abundantly in discussions on some subjects, and more sparingly in others. Therefore the genera are known to you; but when you are to employ them the questions themselves will instruct you. For there are resemblances which by means of comparisons arrive at the point they aim at; in this manner: "If a guardian is bound to behave with good faith, and a partner, and any one to whom you have entrusted anything, and any one who has undertaken a trust, then so ought an agent." This argument, arriving at the point at which it aims by a comparison of many instances, is called induction; which in Greek is called epagôgê; and it is the kind of argument which Socrates employed a great deal in his discourses.
Another kind of resemblance is obtained by comparison, when one thing is compared to some other single thing, and like to like; in this way: "As if in any city there is a dispute as to boundaries, because the boundaries of fields appear more extensive than those of cities, you may find it impossible to bring an arbitrator to settle the question of boundaries; so if rain-water is injurious in a city, since the whole matter is one more for country magistrates, you may not be able to bring an arbitrator to settle the question of keeping off rain-water." Again, from the same topic of resemblance, examples are derived; as, "Crassus in Curius's trial used many examples, speaking of the man who by his will had appointed his heir in such a manner, that if he had had a son born within ten months of his death, and that son had died before coming into possession of the property held in trust for him, the reversionary heir would succeed to the inheritance. And the enumeration of precedents which Crassus brought forward prevailed." And you are accustomed to use this style of argument very frequently in replies. Even fictitious examples have all the force of real ones, but they belong rather to the orator than to you lawyers, although you also do use them sometimes, but in this way: "Suppose a man had given a slave a thing which a slave is by law incapable of receiving, is it on that account the act of the man who received it? or has he, who gave that present to his slave, on that account taken any obligations on himself?" And in this kind of argument orators and philosophers are allowed to make even dumb things talk; so that the dead may be raised from the shades below, or that anything which intrinsically is absolutely impossible, may, for the sake of adding force to the argument, or diminishing, be spoken of as real: and that figure is called hyperbole. And they may say other marvellous things; but theirs is a wider field. Still, out of the same topics, as I have said before, arguments are derived for the most important and the most trivial inquiries.
XI. After similarity there follows difference between things; which is as different as possible from the preceding topic; still it is the same art which finds out resemblances and dissimilarities. These are instances of the same sort:-- "If you have contracted a debt to a woman, you can pay her without having recourse to a trustee; but what you owe to a minor, whether male or female, you cannot pay in the same manner."
The next topic is one which is derived from contraries. But the genera of contraries are several. One is of such things as differ in the same kind; as wisdom and folly. But those things are said to be in the same kind, which, when they are proposed, are immediately met by certain contraries, as if placed opposite to them: as slowness is contrary to rapidity, and not weakness. From which contraries such arguments as these are deduced:--"If we avoid folly, let us pursue wisdom; and if we avoid wickedness, let us pursue goodness." These things, as they are contrary qualities in the same class, are called opposites. For there are other contraries, which we may call in Latin, privantia, and which the Greeks call sterêtika. For the preposition in deprives the word of that force which it would have if in were not prefixed; as, "dignity, indignity--humanity, inhumanity," and other words of the same kind, the manner of dealing with which is the same as that of dealing with other kinds which I have called opposites. For there are also other kinds or contraries; as those which are compared to something or other; as, "twofold and simple; many and few; long and short; greater and less." There are also those very contrary things which are called negatives, which the Greeks call apophatika: as, "If this is the case, that is not." For what need is there for an instance? only let it be understood that in seeking for an argument it is not every contrary which is suitable to be opposed to another.
XII. But I gave a little while ago an instance drawn from adjuncts; showing that many things are added as accessories, which ought to be admitted, if we decided that possession ought to be given by the praetor's edict, in compliance with the will which that person made who had no right whatever to make a will. But this topic has more influence in conjectural causes, which are frequent in courts of justice, when we are inquiring either what is, or what has been, or what is likely to be, or what possibly may happen. And the form of the topic itself is as follows. But this topic reminds us to inquire what happened before the transaction of which we are speaking, or at the same time with the transaction, or after the transaction. "This has nothing to do with the law, you had better apply to Cicero," our friend Gallus used to say, if any one brought him any cause which required an inquiry into matters of fact. But you will prefer that no topic of the art which I have begun to treat of should be omitted by me, lest if you should think that nothing was to be written here except what had reference to yourself, you should seem to be too selfish. This then is for the most part an oratorical topic; not only not much suited to lawyers, but not even to philosophers. For the circumstances which happened before the matter in question are inquired into, such as any preparation, any conferences, any place, any prearranged convivial meeting. And the circumstances which happened at the same time with the matter in question, are the noise of footfalls, the noise of men, the shadow of a body, or anything of that sort. The circumstances subsequent to the matter in question are, blushing, paleness, trepidation, or any other tokens of agitation or consciousness; and besides these, any such fact as a fire extinguished, a bloody sword, or any circumstance which can excite a suspicion of such an act.
XIII. The next topic is one peculiar to dialecticians; derived from consequents, and antecedents, and inconsistencies; and this one is very different from that drawn from differences. For adjuncts, of which we were speaking just now, do not always exist, but consequents do invariably. I call those things consequents which follow an action of necessity. And the same rule holds as to antecedents and inconsistencies; for whatever precedes each thing, that of necessity coheres with that theme; and whatever is inconsistent with it is of such a nature that it can never cohere with it. As then this topic is distributed in three divisions, into consequence, antecession, and inconsistency, there is one single topic to help us find the argument, but a threefold way of dealing with it. For what difference does it make, when you have once assumed that the ready money is due to the woman to whom all the money has been bequeathed, whether you conclude your argument in this way:--"If coined money is money, it has been bequeathed to the woman; but coined money is money; therefore it has been bequeathed to her,"--or in this way: "If ready money has not been bequeathed to her, then ready money is not money; but ready money is money; therefore it has been bequeathed to her;"--or in this way: "The cases of money not having been bequeathed, and of ready money not having been bequeathed, are identical; but money was bequeathed to her; therefore ready money was bequeathed to her?"
But the dialecticians call that conclusion of the argument in which, when you have first made an assumption, that which is connected with it follows as a consequence of the assumption, the first mood of the conclusion; and when, because you have denied the consequence, it follows that that also to which it was a consequence must be denied also, that is the second mood. But when you deny some things in combination, (and then another negation is added to them,) and from these things you assume something, so that what remains is also done away with, that is called the third mood of the conclusion. From this are derived those results of the rhetoricians drawn from contraries, which they call enthymemes. Not that every sentence may not be legitimately called an enthymeme; but, as Homer on account of his preeminence has appropriated the general name of poet to himself as his own among all the Greeks; so, though every sentence is an enthymeme, still, because that which is made up of contraries appears the most acute argument of the kind, that alone has possessed itself of the general name as its own peculiar distinction. Its kinds are these:--"Can you fear this man, and not fear that one?"--"You condemn this woman, against whom you bring no accusation; and do you say that this other one deserves punishment, whom you believe to deserve reward?"--"That which you do know is no good; that which you do not know is a great hindrance to you."
XIV. This kind of disputing is very closely connected with the mode of discussion adopted by you lawyers in reply, and still more closely with that adopted by philosophers, as they share with the orators in the employment of that general conclusion which is drawn from inconsistent sentences, which is called by dialecticians the third mood, and by rhetoricians an enthymeme. There are many other moods used by the rhetoricians, which consist of disjunctive propositions:--"Either this or that is the case; but this is the case; then that is not the case." And again:-- "Either this or that is the case; but this is not the case; then that is the case." And these conclusions are valid, because in a disjunctive proposition only one alternative can be true. And from those conclusions which I have mentioned above, the former is called by the dialecticians the fourth mood, and the latter the fifth. Then they add a negation of conjunctive propositions; as, "It is not both this and that; but it is this; therefore it is not that." This is the sixth mood. The seventh is, "It is not both this and that, but it is not this; therefore it is that." From these moods innumerable conclusions are derived, in which nearly the whole science of dialectics consists. But even those which I have now explained are not necessary for this present discussion.
XV. The next topic is drawn from efficient circumstances, which are called causes; and the next from the results produced by these efficient causes. I have already given instances of these, as of the other topics, and those too drawn from civil law; but these have a wider application.
There are then two kinds of causes; one which of its own force to a certainty produces that effect which is subordinate to it; as, "Fire burns;" the other is that which has no nature able to produce the effect in question, though still that effect cannot be produced without it; as, if any one were to say, that "brass was the cause of a statue; because a statue cannot be made without it." Now of this kind of causes which are indispensable to a thing being done, some are quiet, some passive, some, as it were, senseless; as, place, time, materials, tools, and other things of the same sort. But some exhibit a sort of preparatory process towards the production of the effect spoken of; and some of themselves do contribute some aid to it; although it is not indispensable; as meeting may have supplied the cause to love; love to crime. From this description of causes depending on one another in infinite series, is derived the doctrine of fate insisted on by the Stoics. And as I have thus divided the genera of causes, without which nothing can be effected, so also the genera of the efficient causes can be divided in the same manner. For there are some causes which manifestly produce the effect, without any assistance from any quarter; others which require external aid; as for instance, wisdom alone by herself makes men wise; but whether she is able alone to make men happy is a question.
XVI. Wherefore, when any cause efficient as to some particular end has inevitably presented itself in a discussion, it is allowable without any hesitation to conclude that what that cause must inevitably effect is effected. But when the cause is of such a nature that it does not inevitably effect the result, then the conclusion which follows is not inevitable. And that description of causes which has an inevitable effect does not usually engender mistakes; but this description, without which a thing cannot take place, does often cause perplexity. For it does not follow, because sons cannot exist without parents, that there was therefore any unavoidable cause in the parents to have children. This, therefore, without which an effect cannot be produced, must be carefully separated from that by which it is certainly produced. For that is like--
Would that the lofty pine on Pelion's brow
For if the beam of fir had never fallen to the ground, that Argo would not have been built; and yet there was not in the beams any unavoidably efficient power. But when
"The fork'd and fiery bolt of Jove"
was hurled at Ajax's vessel, that ship was then inevitably burnt.
And again, there is a difference between causes, because some are such that without any particular eagerness of mind, without any expressed desire or opinion, they effect what is, as it were, their own work; as for instance, "that everything must die which has been born." But other results are effected either by some desire or agitation of mind, or by habit, or nature, or art, or chance. By desire, as in your case, when you read this book; by agitation, as in the case of any one who fears the ultimate issue of the present crisis; by habit, as in the case of a man who gets easily and rapidly in a passion; by nature, as vice increases every day; by art, as in the case of a man who paints well; by chance, as in the case of a man who has a prosperous voyage. None of these things are without some cause, and yet none of them are wholly owing to any single cause. But causes of this kind are not necessary ones.
XVII. But in some of these causes there is a uniform operation, and in others there is not. In nature and in art there is uniformity; but in the others there is none. But still of those causes which are not uniform, some are evident, others are concealed. Those are evident which touch the desire or judgment of the mind; those are concealed which are subject to fortune: for as nothing is done without some cause, this very obscure cause, which works in a concealed manner, is the issue of fortune. Again, these results which are produced are partly unintended, partly intentional. Those are unintended which are produced by necessity; those are intentional which are produced by design. But those results which are produced by fortune are either unintended or intentional. For to shoot an arrow is an act of intention; to hit a man whom you did not mean to hit is the result of fortune. And this is the topic which you use like a battering-ram in your forensic pleadings; if a weapon has flown from the man's hand rather than been thrown by him. Also agitation of mind may be divided into absence of knowledge and absence of intention. And although they are to a certain extent voluntary, (for they are diverted from their course by reproof or by admonition,) still they are liable to such emotions that even those acts of theirs which are intentional sometimes seem either unavoidable, or at all events unintentional.
The whole topic of these causes then being now fully explained, from their differences there is derived a great abundance of arguments in all the important discussions of orators and philosophers. And in the cases which you lawyers argue, if there is not so plentiful a stock, what there are, are perhaps more subtle and shrewd. For in private actions the decisions in the most important cases appear to me to depend a great deal on the acuteness of the lawyers. For they are constantly present, and are taken into counsel; and they supply weapons to able advocates whenever they have recourse to their professional wisdom.
In all those judicial proceedings then, in which the words "according to good faith" are added, or even those words, "as ought to be done by one good man to another;" and above all, in all cases of arbitration respecting matrimonial rights, in which the words " juster and better" occur, the lawyers ought to be always ready. For they know what "dishonest fraud," or "good faith," or "just," or "good" mean. They are acquainted with the law between partners; they know what the man who has the management of the affairs of another is bound to do with respect to him whose affairs he manages; they have laid down rules to show what the man who has committed a charge of another, and what he who has had it committed to him, ought to do; what a husband ought to confer on his wife, and a wife on her husband. It will, therefore, when they have by diligence arrived at a proper understanding of the topics from which the necessary arguments are derived, be in the power not only of orators and philosophers, but of lawyers also, to discuss with abundance of argument all the questions which can arise for their consideration.
XVIII. Conjoined to this topic of causes is that topic which is supplied by causes [sc. that topic of the effects of causes]. For as cause indicates effect so what has been effected points out what the efficient cause has been. This topic ordinarily supplies to orators and poets, and often to philosophers also, that is to say, to those who have an elegant and argumentative and rich style of eloquence, a wonderful store of arguments, when they predict what will result from each circumstance. For the knowledge of causes produces a knowledge of effects.
The remaining topic is that of comparison, the genus and instances of which have been already explained, as they have in the case of the other topics. At present we must explain the manner of dealing with this one. Those things then are compared which are greater than one another, or less than one another, or equal to one another. In which these points are regarded; number, appearance, power, and some particular relation to some particular thing.
Things will be compared in number thus: so that more advantages may be preferred to fewer; fewer evils to more; more lasting advantages to those which are more short-lived; those which have an extensive application to those the effect of which is narrowed: those from which still further advantages may be derived, and those which many people may imitate and reproduce.
Things again will be compared with reference to their appearance, so that those things may be preferred which are to be desired for their own sake, to those which are only sought for the sake of something else: and so that innate and inherent advantages may be preferred to acquired and adventitious ones; complete good to mixed good; pleasant things to things less pleasant; honourable things to such as are merely useful; easy things to difficult ones; necessary to unnecessary things; one's own advantage to that of others; rare things to common ones; desirable things to those which you can easily do without; things complete to things which are only begun; wholes to parts; things proceeding on reason to things void of reason; voluntary to necessary things; animate to inanimate things; things natural to things not natural; things skilfully produced by art to things with which art has no connexion.
But power in a comparison is perceived in this way: efficient cause is more important than one which effects nothing; those causes which can act by themselves are superior to those which stand in need of the aid of others; those which are in our power are preferable to those which are in the power of another; lasting causes surpass those which are uncertain; things of which no one can deprive us are better than things which can be easily taken away.
But the way in which people or things are disposed towards some things is of this sort: the interests of the chief citizens are more important than those of the rest: and also, those things which are more agreeable, which are approved of by more people, or which are praised by the most virtuous men, are preferable. And as in a comparison these things are the better, so those which are contrary to them are the worse.
But the comparison between things like or equal to each other has no elation or submission; for it is on equal terms: but there are many things which are compared on account of their very equality; which are usually concluded in this manner: "If to assist one's fellow-citizens with counsel and personal aid deserves equal praise, those men who act as counsellors ought to enjoy an equal glory with those who are the actual defenders of a state." But the first premise is certainly the case; therefore so must the consequent be.
Every rule necessary for the discovery of arguments is now concluded; so that as you have proceeded from definition, from partition, from observation, from words connected with one another, from genus, from species, from similarity, from difference, from contraries, from accessories, from consequents, from antecedents, from things inconsistent with one another, from causes, from effects, from a comparison with greater, or lesser, or equal things,--there is no topic of argument whatever remaining to be discovered.
XIX. But since we originally divided the inquiry in such a way that we said that other topics also were contained in the very matter which was the subject of inquiry; (but of those we have spoken at sufficient length:) that others were derived from external subjects; and of these we will say a little; although those things have no relation whatever to your discussions. But still we may as well make the whole thing complete, since we have begun it. Nor are you a man who takes no delight in anything except civil law; and since this treatise is dedicated to you, though not so exclusively but that it will also come into the hands of other people, we must take pains to be as serviceable as possible to those men who are addicted to laudable pursuits.
This sort of argumentation then which is said not to be founded on art, depends on testimony. But we call everything testimony which is deduced from any external circumstances for the purpose of implanting belief. Now it is not every one who is of sufficient weight to give valid testimony; for authority is requisite to make us believe things. But it is either a man's natural character or his age which invests him with anthority. The authority derived from a man's natural character depends chiefly on his virtue; but on his age there are many things which confer authority; genius, power, fortune, skill, experience, necessity, and sometimes even a concourse of accidental circumstances. For men think able and opulent men, and men who have been esteemed during a long period of their lives, worthy of being believed. Perhaps they are not always right; but still it is not easy to change the sentiments of the common people; and both those who form judgments and those who adopt vague opinions shape everything with reference to them. For those men who are eminent for those qualities which I have mentioned, seem to be eminent for virtue itself. But in the other circumstances also which I have just enumerated, although there is in them no appearance of virtue, still sometimes belief is confirmed by them, if either any skill is displayed,-- for the influence of knowledge in inspiring belief is very great; or any experience, --for people are apt to believe those who are men of experience.
XX. Necessity also engenders belief, which sways both bodies and minds. For what men say when worn out with tortures, and stripes, and fire, appears to be uttered by truth itself. And those statements which proceed from agitation of mind, such as pain, cupidity, passion, and fear, because those feelings have the force of necessity, bring authority and belief. And of this kind are those circumstances from which at times the truth is discovered; childhood, sleep, ignorance, drunkenness, insanity. For children have often indicated something, though ignorant to what it related; and many things have often been discovered by sleep, and wine, and insanity. Many men also have without knowing it fallen into great difficulties, as lately happened to Stalenus; who said things in the hearing of certain excellent men, though a wall was between them, which, when they were revealed and brought before a judicial tribunal, were thought so wicked that he was rightly convicted of a capital offence. And we have heard something similar concerning Pausanias the Lacedaemonian.
But the concourse of fortuitous events is often of this kind; when anything has happened by chance to interrupt, when anything was being done or said which it was desirable should not have been done or said. Of this kind is that multitude of suspicions of treason which were heaped upon Palamedes. And circumstances of this kind are sometimes scarcely able to be refuted by truth itself. Of this kind too is ordinary report among the common people; which is as it were the testimony of the multitude.
But those things which create belief on account of the virtue of the witness are of a two-fold kind; one of which is valid on account of nature, the other by industry. For the virtue of the gods is eminent by nature; but that of men, because of their industry.
Testimonies of this kind are nearly divine: first of all, that of oration, (for oracles were so called from that very same word, as there is in them the oration of the gods;) then that of things in which there are, as it were, many divine works; first of all, the word itself, and its whole order and ornaments; then the airy fiights and songs of birds; then the sound and heat of that same air; and the numerous prodigies of divers kinds seen on the earth; and also, the power of foreseeing the future by means of the entrails of victims: many things, too, which are shown to the living by those who are asleep: from all which topics the testimonies of the gods are at times adduced so as to create belief.
In the case of a man, the opinion of his virtue is of the greatest weight. For opinion goes to this extent, that those men have virtue, not only who do really possess it, but those also who appear to possess it. Therefore, those men whom they see endowed with genius and diligence and learning, and whose life they see is consistent and approved of, like Cato, and Laelius, and Scipio, and many others, they consider such men as they themselves would wish to be. And not only do they think them such who enjoy honours conferred on them by the people, and who busy themselves with affairs of state, but also those who are orators, and philosophers, and poets, and historians; from whose sayings and writings authority is often sought for to establish belief.
XXI. Having thus explained all the topics serviceable for arguing, the first thing to be understood is, that there is no discussion whatever to which some topic or other is not applicable; and on the other hand, that it is not every topic which is applicable to every discussion; but that different topics are suited to different subjects.
There are two kinds of inquiry: one, infinite; the other, definite. The definite one is that which the Greeks call hypothesis, and we, a cause; the infinite one, that which they call thesis, and which we may properly term a proposition.
A cause is determined by certain persons, places, times, actions, and things, either all or most of them; but a proposition is declared in some one of those things, or in several of them, and those not the most important: therefore, a proposition is a part of a cause. But the whole inquiry is about some particular one of those things in which causes are contained; whether it be one, or many, or sometimes all. But of inquiries, concerning whatever thing they are, there are two kinds; one theoretical, the other practical. Theoretical inquiries are those of which the proposed aim is science; as "If it is inquired whether right proceeds from nature, or from some covenant, as it were, and bargain between men." But the following are instances of practical inquiry: "Whether it is the part of a wise man to meddle with statesmanship." The inquiries into theoretical matters are threefold; as what is inquired is, whether a thing exists, or what it is, or what its character is. The first of these queries is explained by conjecture; the second, by definition; the third, by distinctions of right and wrong.
The method of conjecture is distributed into four parts; one of which is, when the inquiry is whether something exists; a second, when the question is, whence it has originated; a third, when one seeks to know what cause produced it; the fourth is that in which the alterations to which the subject is liable are examined: "Whether it exists or not; whether there is anything honourable, anything intrinsically and really just; or whether these things only exist in opinion." But the inquiry whence it has originated, is when an inquiry is such as this, "Whether virtue is implanted by nature or whether it can be engendered by instruction." But the efficient cause is like this, as when an inquiry is, "By what means eloquence is produced." Concerning the alterations of anything, in this manner: "Whether eloquence can by any alteration be converted into a want of eloquence."
XXII. But when the question is what a thing is; the notion is to be explained, and the property, and the division, and the partition. For these things are all attributed to definition. Description also is added, which the Greeks called charaktêr. A notion is inquired into in this way: "Whether that is just which is useful to that person who is the more powerful.'' Property, in this way: "Whether melancholy is incidental to man alone, or whether beasts also are liable to it." Division, and also partition, in this manner: "Whether there are three descriptions of good things." Description, like this: "What sort of person a miser is; what sort of person a flatterer;" and other things of that sort, by which the nature and life of a man are described.
But when the inquiry is what the character of something is, the inquiry is conducted either simply, or by way of comparison. Simply, in this way: "Whether glory is to be sought for." By way of comparison, in this way: "Whether glory is to be preferred to riches." Of simple inquiries there are three kinds; about seeking for or avoiding anything, about the right and the wrong; about what is honourable and what is discreditable. But of inquiries by way of comparison there are two; one of the thing itself and something else; one of something greater and something else. Of seeking for and avoiding a thing, in this way: "Whether riches are to be sought for: whether poverty is to be avoided." Concerning right and wrong: "Whether it is right to revenge oneself, whoever the person may be from whom one has received an injury." Concerning what is honourable and what is discreditable: "Whether it is honourable to die for one's country." But of the other kind of inquiry, which has been stated to be twofold, one is about the thing in question and something else; as if it were asked, "What is the difference between a friend and a flatterer, between a king and tyrant?" The other is between something greater and something less; as if it were asked, "Whether eloquence is of more consequence than the knowledge of civil law." And this is enough about theoretical inquiries.
It remains to speak of practical ones; of which there are two kinds: one relating to one's duty, the other to engendering, or calming, or utterly removing any affection of the mind. Relating to duty thus: as when the question is, "Whether children ought to be had." Relating to influencing the mind, when exhortations are delivered to men to defend the republic, or when they are encouraged to seek glory and praise: of which kind of addresses are complaints, and encouragements, and tearful commiseration; and again, speeches extinguishing anger, or at other times removing fear, or repressing the exultation of joy, or effacing melancholy. As these different divisions belong to general inquiries, they are also transferable to causes.
XXIII. But the next thing to be inquired is, what topics are adapted to each kind of inquiry; for all those which we have already mentioned are suitable to most kinds; but still, different topics, as I have said before, are better suited to different investigations. Those arguments are the most suitable to conjectural discussion which can be deduced from causes, from effects, or from dependent circumstances. But when we have need of definition, then we must have recourse to the principles and science of defining. And akin to this is that other argument also which we said was employed with respect to the subject in question and something else; and that is a species of definition. For if the question is, "Whether pertinacity and perseverance are the same thing," it must be decided by definitions. And the topics which are incidental to a discussion of this kind are those drawn from consequents, or antecedents, or inconsistencies, with the addition also of those two topics which are deduced from causes and effects. For if such and such a thing is a consequence of this, but not a consequence of that; or if such and such a thing is a necessary antecedent to this, but not to that; or if it is inconsistent with this, but not with that; or if one thing is the cause of this, and another the cause of that; or if this is effected by one thing, and that by another thing; from any one of these topics it may be discovered whether the thing which is the subject of discussion is the same thing or something else.
With respect to the third kind of inquiry, in which the question is what the character of the matter in question is, those things are incidental to the comparison which were enumerated just now under the topic of comparison. But in that kind of inquiry where the question is about what is to be sought for or avoided, those arguments are employed which refer to advantages or disadvantages, whether affecting the mind or body, or being external. And again, when the inquiry is not what is honourable or discreditable, all our argument must be addressed to the good or bad qualities of the mind.
But when right and wrong are being discussed, all the topics of equity are collected. These are divided in a twofold manner, as to whether they are such by nature or owing to institutions. Nature has two parts to perform, to defend itself, and to indicate right. But the agreements which establish equity are of a threefold character: one part is that which rests on laws; one depends on convenience; the third is founded on and established by antiquity of custom. And again, equity itself is said to be of a threefold nature: one division of it having reference to the gods above; another, to the shades below; a third, to mankind. The first is called piety; the second, sanctity; the third, justice or equity.
XXIV. I have said enough about propositions. There are now a few things which require to be said about causes. For they have many things in common with propositions.
There are then three kinds of causes; having for their respective objects, judgment, deliberation, and panegyric. And the object of each points out what topics we ought to employ in each. For the object of judicial judgment is right; from which also it derives its name. And the divisions of right were explained when we explained the divisions of equity. The object of deliberation is utility; of which the divisions have also been already explained when we were treating of things to be desired. The object of panegyric is honour; concerning which also we have already spoken.
But inquiries which are definite are all of them furnished with appropriate topics, as if they belonged to themselves, being divided into accusation and defence. And in them there are these kinds of argumentation. The accuser accuses a person of an act; the advocate for the defence opposes one of these excuses: either that the thing imputed has not been done; or that, if it has been done, it deserves to be called by a different name; or that it was done lawfully and rightly. Therefore, the first is called a defence either by way of denial or by way of conjecture; the second is called a defence by definition; the third, although it is an unpopular name, is called the judicial one.
XXV. The arguments proper to these excuses, being derived from the topics which we have already set forth, have been explained in our oratorical rules. But the refutation of an accusation, in which there is a repelling of a charge, which is called in Greek stasis, is in Latin called status. On which there is founded, in the first place, such a defence as may effectually resist the attack. And also, in the deliberations and panegyrics the same refutations often have place. For it is often denied that those things are likely to happen which have been stated by some or other in his speech as sure to take place; if it can be shown either that they are actually impossible, or that they cannot be brought about without extreme difficulty. And in this kind of argumentation the conjectural refutation takes place. But when there is any discussion about utility, or honour, or equity, and about those things which are contrary to one another, then come in denials, either of the law or of the name of the action. And the same is the case in panegyrics. For one may either deny that that has been done which the person is praised for; or else that it ought to bear that name which the praiser has conferred on it, or else one may altogether deny that it deserves any praise at all, as not having been done rightly or lawfully. And Caesar employed all these different kinds of denial with exceeding impudence when speaking against my friend Cato. But the contest which arises from a denial is called by the Greeks krinomenon; I, while writing to you, prefer calling it "the precise point in dispute." But for the parts within which this discussion on the point in dispute is contained, they may be called the containing parts; being as it were the foundations of the defence; and if they are taken away there would be no defence at all. But since in arguing controversies there ought to be nothing which has more weight than the law itself, we must take pains to have the law as our assistant and witness. And in this there are, as it were, other new denials, which are called legitimate subjects of discussion. For then it is urged in defence, that the law does not say what the adversary states it to say, but something else. And that happens when the terms of the law are ambiguous, so that they can be understood in two different senses. Then the intention of the framer is opposed to the letter of the law; so that the question is, whether the words or the intention ought to have the greatest validity. Then again, another law is adduced contrary to this law. So there are three kinds of doubts which can give rise to a dispute with respect to every written document; ambiguity of expression, discrepancy between the expression and the intention, and also written documents opposed to the one in question. For this is evident; that these kinds of disputes are no more incidental to laws than to wills, or covenants, or to anything else which is contained in writing. And the way to treat these topics is explained in other books.
XXVI. Nor is it only entire pleadings which are assisted by these topics, but the same are useful in the separate parts of an oration; being partly peculiar and partly general. As in the opening of a speech, in which the orator must employ peculiar topics in order to render his hearers well disposed to him, and docile, and attentive. And also he must attend to his relations of facts, so that they may have a bearing on his object, that is to say, that they may be plain, and brief, and intelligible, and credible, and respectable, and dignified: for although these qualities ought to be apparent throughout the whole speech, still they are peculiarly necessary in any narration. But since the belief which is given to a narration is engendered by persuasiveness, we have already, in the treatises which we have written on the general subject of oratory, explained what topics they are which have the greatest power to persuade the hearers. But the peroration has other points to attend to, and especially amplification; the effect of which ought to be, that the mind of the hearer is agitated or tranquillized by it; and if it has already been affected in that way, that the whole speech shall either increase its agitation, or calm it more completely.
For this kind of peroration, by which pity, and anger, and hatred, and envy, and similar feelings of the mind are excited, rules are furnished in those books, which you may read over with me whenever you like. But as to the point on which I have known you to be anxious, your desires ought now to be abundantly satisfied. For, in order not to pass over anything which had reference to the discovery of arguments in every sort of discussion, I have embraced more topics than were desired by you; and I have done as liberal sellers often do when they have sold a house or a farm, the movables being all excepted from the sale, still give some of them to the purchaser, which appear to be well placed as ornaments or conveniences. And so we have chosen to throw in some ornaments that were not strictly your due, in addition to that with which we had bound ourselves to furnish you.
1. <Yonge, p. 460, note 1> Assiduus. Prop. sitting down, seated, and so, well to do in the world, rich. The derivation ab assis duendis is therefore to be rejected. Servius Tullius divided the Roman people into two classes, assidui, i.e. the rich, who could sit down and take their ease, and proletarii, or capite censi, the poor."--Diddle, in voc. Assiduus, quoting this passage. One does not see, however, why Aelius and Cicero should not understand the meaning and derivation of a Latin word. Smith's Dict. Ant. takes no notice of the word at all.
2. [Yonge, p. 463, note 1]: See chap. x.
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