Rhetorica ad Herennium, Liber Secundus
Book II
1 I. In the first book, Herennius, I set out briefly what causes the orator must take up, in what duties of the art he must labour, and by what method he could most easily attain those duties. But since everything could not be said at once, and the most important matters had to be written first so that the rest might seem easier for you to grasp, I resolved to write down first those that were the most difficult.
There are three kinds of causes: demonstrative, deliberative and judicial. The judicial is by far the most difficult; therefore I have dealt with it first, both here and in the earlier book. Of the orator’s five duties, invention is both the first and the most difficult. This too will be almost completely finished in this book; small parts of it will be carried over into the third volume.
2 I began by writing of the six parts of a speech. In the first book I spoke of the introduction, the statement of facts and the division, neither in more words than was necessary nor less clearly than I thought you wished; then it was necessary to speak jointly of proof and refutation. For this reason I laid open the kinds of issues and their parts, and in the same course showed how, once a cause is set, the issue and the part of the issue are to be found. Then I taught how the point for judgment ought to be sought; and, once it is found, care must be taken that the whole plan of the entire speech is brought to bear upon it. Afterwards I warned that there are many causes to which several issues, or parts of issues, may be adapted.
II. What remained was to show by what method inventions could be adapted to each issue or part of an issue, and likewise what sort of arguments, which the Greeks call epicheiremata, should be followed and what sort avoided; both of which belong to proof and to refutation. Lastly I taught what sort of conclusions of speeches ought to be used, which was the last place among the six parts of a speech.
First, then, we shall inquire how each cause ought to be handled, and we shall by all means consider first the one that is first and most difficult.
In a conjectural cause the accuser’s statement of facts ought to contain suspicions interspersed and scattered, so that nothing is thought to have been done or said, nowhere gone or come, nothing at all done without a reason. The defender’s statement ought to give a simple and clear exposition, with a lessening of the suspicion.
The method of this issue is divided into six parts: the probable, the comparison, the sign, the argument, the consequence and the confirmation. I shall explain what each of them is worth.
The probable is that by which it is proved that it was to the person’s advantage to do wrong, and that he was never free from similar baseness. It is divided into motive and manner of life.
Motive is that which led a man to the crime through hope of advantages or avoidance of disadvantages, when it is asked whether he sought some advantage by the crime, whether office, money or power; whether he wished to satisfy some desire of love or of a similar passion, or whether he sought to avoid some disadvantage: enmity, disgrace, pain, punishment. 4 III. Here the accuser will point out the adversary’s greed in hope of advantage, and in avoidance of disadvantage will magnify his fear. The defender, however, will deny that there was a motive if he can, or will greatly diminish it; then he will say that it is unjust that all to whom some benefit has come from any affair should be summoned into suspicion of crime.
5 Next, a man’s manner of life will be examined from his earlier deeds. First the accuser will consider whether he ever did something similar. If he does not find this, he will ask whether he ever came under similar suspicion; and he must be intent on adapting the man’s life to the motive of the crime which he set out a little before, in this way: if he says that he acted for the sake of money, let him show that he was always avaricious; if for honour, that he was ambitious; thus he will be able to fasten the fault of character to the motive of the crime. If he cannot find a like fault to match the motive, let him find an unlike one. If he cannot show him avaricious, let him show him a corrupter and a traitor; if in any way he can, let him stain him with some vice, or with as many vices as possible; then say that it is no wonder that one who did that deed did this also so wickedly. If the adversary is thought to be very chaste and upright, he will say that deeds, not reputation, ought to be considered; that the man formerly concealed his disgraceful acts; that he will make it plain that the man is not free from the crime. The defender will first show a blameless life, if he can; if he cannot, he will take refuge in thoughtlessness, folly, youth, force, persuasion; and on these matters he will say that blame for things outside this charge ought not to be assigned. But if the man is heavily burdened with baseness and disgrace, he will first take pains to say that false rumours about an innocent man have been spread, and will use the commonplace that rumours ought not to be believed. If none of this can be done, let him use the last defence: let him say that he is speaking not about the man’s character before censors, but about the charges of his adversaries before judges.
IV. The comparison is when the accuser shows that what he charges his adversary with doing was of advantage to no one else except the defendant, or that no one else could have accomplished it except the adversary, or that the man himself could not have done it by other means, or not as conveniently, or that he avoided other, more convenient means because of his passion. At this point the defender must show either that it was to the advantage of others also, or that others also could have done what he himself is accused of doing.
The sign is that by which it is shown that a suitable ability to carry out the deed was sought. It is divided into six parts: place, time, space of time, opportunity, hope of accomplishing, hope of concealing.
whether the place was deserted at the time the deed was done, and whether he was in that place; what kind of places adjoin it; whether the victim could have been seen or overheard.
what is fitting for the defendant and what for the accuser, we would not shrink from writing out, were it not that anyone can easily judge it once the cause is set. For the beginnings of invention must come from the art; the rest practice will easily supply.
Time is inquired into thus: what time of year, what hour, by night or by day, on what day, at what hour of the night the deed is said to have been done, and why at such times.
Space of time will be considered thus: whether it was long enough to carry out that deed, and whether he knew that there would be enough time to accomplish it; for it matters little that there was enough time to accomplish it if that could not be known beforehand and provided for by calculation.
Opportunity is examined: whether it was suitable for undertaking the deed, or whether there was another, better one, which either was past or was not expected.
Whether there was any hope of accomplishing it will be examined in this way: if the signs mentioned above concur, and if besides it appears that on one side there were strength, money, planning, knowledge and preparation, and on the other side weakness, poverty, folly, thoughtlessness and want of preparation are shown; by this he will be able to know whether he ought to have lost hope. What the hope of concealing was is inquired into from accomplices, witnesses, helpers, free persons or slaves or both.
8 V. The argument is that by which a matter is proved against a man by surer proofs and a firmer suspicion. It is divided into three times: the past, the present and the consequent.
In past time one must consider where he was, where he was seen, with whom he was seen, whether he made any preparation, whether he met anyone, whether he said anything, whether he had anything to do with accomplices, helpers and aids; whether he was in any place contrary to his custom or at an improper time. In the present time it will be asked whether he was seen while he was doing it, whether any noise, shout or clatter was heard, or finally whether anything was perceived by any sense, by sight, hearing, touch, smell or taste; for any one of these senses can raise a suspicion. In the consequent time it will be examined whether anything was left behind after the deed that indicates either that a crime was committed or by whom it was done. That it was committed, in this way: if the body of the dead man is discoloured with swelling and bruising, it shows that he was killed by poison. By whom it was done, in this way: if a weapon, a garment or something of the kind was left, or if some trace of the deed was found; if there is blood on his clothes; if he was caught or seen, when the business was over, in the place where the deed is said to have been done.
The consequence is when it is asked what signs usually follow the guilty and the innocent. The accuser will say, if he can, that the adversary, when he was confronted, blushed, turned pale, faltered, spoke inconsistently, collapsed, promised something; which are signs of a guilty conscience. If the defendant did none of these things, the accuser will say that he had so far rehearsed what would happen to him that he resisted and answered with the greatest assurance; which are signs of boldness, not of innocence. The defender, if he was frightened, will say that he was shaken by the greatness of the danger, not by a consciousness of wrongdoing; if he was not frightened, he will say that, relying on his innocence, he was not shaken.
VI. The confirmation is what we use last, when the suspicion has been established. It has special and common topics. Special topics are those which only the accuser can use, and those which only the defender can. Common topics are those which in one cause are handled by the defendant, in another by the accuser. In a conjectural cause the accuser’s special topic is when he says that the wicked ought not to be pitied, and when he magnifies the atrocity of the crime. The defender’s special topic is when he seeks pity and charges the accuser with false accusation. The common topics, shared by accuser and defender, are: from witnesses, against witnesses; from examinations under torture, against such examinations; from arguments, against arguments; from rumours, against rumours.
From witnesses we shall speak according to the authority and life of the witnesses and the consistency of their testimonies. Against witnesses: according to the baseness of their lives and the inconsistency of their testimonies; we shall say either that what they say could not have happened or did not happen, or that they could not have known it, or that they speak and argue out of partisanship. These points will serve both for disproving and for questioning witnesses. 10 VII. From examinations under torture we shall speak when we show that our ancestors wished inquiry to be made by torments and torture for the sake of finding the truth, and that men are compelled by the greatest pain to say whatever they know; and moreover this argument will be more firmly established if we draw what has been said, by arguing along the same paths by which every conjecture is handled, to a probable suspicion; and the same will have to be done with testimonies. Against examinations we shall speak thus: first, that our ancestors wished torture to be applied in certain matters, where what was truthfully said could be known and what was falsely declared under examination could be refuted, as for example where something was placed, or if there were anything similar that could be seen or proved by tracks or perceived by some like sign; next, that pain is not to be trusted, because one man is more yielding to pain than another, one more ingenious at inventing, and finally because he can often know or guess what the questioner wishes to hear; and when he has said it, he understands that an end of pain will come to him. This argument will be approved if we refute by probable reasoning what was said under examinations; and this must be done by the parts of conjecture which we set out before. 11 From arguments and signs and the other topics by which suspicion is increased it is fitting to speak thus: When many arguments and signs concur and agree with one another, the matter ought to seem plain, not merely suspected. Likewise, signs and arguments ought to be trusted more than witnesses, for the former are set out just as the events really happened, whereas witnesses can be corrupted by bribe or favour or fear or enmity. Against arguments and signs and the other suspicions we shall speak thus: by showing that there is nothing of which anyone could not be accused by suspicions; then we shall weaken each suspicion in turn and take pains to show that it fits us no more than any other person; it is an unworthy thing that conjecture and suspicion without witnesses should be thought a sufficient foundation. 12 VIII. From rumours we shall speak if we say that report is not wont to arise at random without something underlying it; and if we say that there was no reason why anyone should have made it up and invented it; and besides, if others are usually false, we shall argue that this one is true. Against rumours we shall speak first by teaching that there are many false rumours, and shall use examples of cases in which the report was false; and we shall say that our enemies or men naturally spiteful and slanderous invented it; and we shall bring against our adversaries some invented tale which we say is on everyone’s lips, or we shall produce a true rumour that brings them some disgrace, and yet say that we do not credit that rumour, because any single man can put out a rumour, however shameful, about anyone he pleases, and spread a made-up story. Nevertheless, if a rumour seems very probable, by argument we shall be able to take away belief in the report.
Because the conjectural issue is the most difficult to handle and has to be handled most often in real causes, I have examined all its parts the more carefully, so that we might not be hindered by even the smallest hesitation or stumbling, if we have joined constant practice to this method of instruction. Now let us pass to the parts of the legal issue. 13 IX. When the intention of the writer seems to disagree with the writing, if we speak for the letter, we shall use these topics: after the statement of facts, first praise of the writer; then a reading of the writing; then a question whether the adversaries knew well that this was written in the law or will or stipulation or any other document that bears upon the case; then a comparison of what is written with what the adversaries say they have done; then, which the judge ought to follow, what was carefully written down or what was cleverly thought up; then the meaning devised by the adversaries and attributed to the writing will be despised and weakened. Then it will be asked what danger there would have been if he had wished to add it in writing, or whether it could not have been written out. Then a meaning will be found by us and the reason offered why the writer meant what he wrote; and it will be shown that the writing is clear, brief, suitable, complete and based on a sure reason. Then examples will be given of cases in which, when meaning and intention were pleaded by the adversaries, judgment was nevertheless given for the letter. Then it will be shown how dangerous it is to depart from the letter. A commonplace against the man who, though he admits that he has acted against what is enacted by law or set down in a will, nevertheless seeks a defence of his act. 14 X. For the intention we shall speak thus: first we shall praise the writer’s convenience and brevity, in that he wrote only what was necessary and thought that what could be understood without writing need not be written. Then we shall say that it is the part of a quibbler to follow words and letters and neglect the intention. Then that what is written either cannot be done, or cannot be done lawfully, by custom, by nature, by what is fair and good, all of which no one will say the writer wished to be done in the most upright way; but what we have done was done most justly. Then that the opposite meaning is either no meaning, or foolish, or unjust, or impossible to carry out, or inconsistent with the preceding and following provisions, or at odds with common right or with other common laws or with previous judgments. Then we shall use an enumeration of examples judged by intention and against the letter, then a reading and exposition of laws or stipulations briefly extracted, in which the intention of the writers is plain. A commonplace against the man who recites the writing and does not interpret the writer’s intention.
15 When two laws disagree with each other, we must see first whether there is any repeal or partial repeal, then whether the laws disagree in that one commands and the other forbids, or in that one compels and the other permits. For the defence of one who says he did not do what he was compelled to do, when the other law permitted it, will be weak; for a command is stronger than a permission. Likewise that defence is thin which shows that was done which the law enacted that had been repealed or partially repealed, while what was enacted by the later law was neglected. When these points have been considered, we shall at once use an exposition, reading and praise of our own law. Then we shall unravel the intention of the opposing law and draw it to the advantage of our cause. Then we shall take from the absolute juridical issue the principle of right and ask which parts of right favour which side; of which part of the juridical issue we shall speak later.
16 XI. If a writing is thought to be ambiguous, so that it can be drawn into two or more meanings, it must be handled thus: first it must be asked whether it is ambiguous; then it must be shown how it would have been written if the writer had wished what the adversaries interpret to be done; then that what we interpret both can be done and can be done honourably, rightly, lawfully, by custom, by nature, in goodness and fairness; and what the adversaries interpret, the contrary; and that it is not ambiguously written, since it is understood which meaning is true. There are those who think that knowledge of ambiguities, as put forward by the dialecticians, greatly helps in handling this kind of cause. We, however, think it is not only of no help but rather a very great hindrance. For all those men hunt after ambiguities, even those which on one side can bear no meaning at all. And so they are tiresome interrupters of other people’s speech, and interpreters of writing both odious and obscure; and while they wish to speak cautiously and clearly, they are found most tongue-tied. Thus, while they fear in speaking to say anything ambiguous, they cannot pronounce their own name. But their childish opinions we shall refute, whenever you wish, with the soundest reasons. For the present it was not out of place to interpose this, that we may despise the chattering teaching of this incapacity. 17 XII. When we use definition, we shall first bring forward a brief definition of the term, in this way: “He diminishes the majesty of the state who takes away those things on which the greatness of the state rests. What are these, Quintus Caepio? The votes of the people and the counsel of the magistrates. You, then, deprived the people of its vote and the magistrate of his counsel when you broke down the bridges.” Likewise from the contrary side: “He diminishes majesty who inflicts injury on the greatness of the state. I did not inflict injury but prevented it; for I preserved the treasury, I resisted the lust of the wicked, I did not allow all majesty to perish.” First, then, the meaning of the term is set out briefly and adapted to the advantage of the cause; then our act will be joined to the description of the term; then the reasoning of the opposing description will be refuted, if it is false or useless or base or unjust—a point to be taken from the parts of right in the absolute juridical issue, of which we shall now speak. 18 In issues of transfer it is first asked whether anyone has an action, claim or prosecution in that matter, whether at another time, under another law, or by another claimant. These points will be found in laws and customs, in fairness and goodness; of which we shall speak in the absolute juridical issue. In the rational cause it will first be asked whether in greater, lesser or similar matters something similar has been written or judged; then whether that matter is like or unlike the matter at issue; then whether it was deliberately that nothing was written on that matter, because the lawgiver did not wish to provide for it, or because he thought it sufficiently provided for by the likeness of the other provisions.
Enough has been said of the parts of the legal issue; now we shall return to the juridical. 19 XIII. We shall use the absolute juridical issue when we say that the very thing which we admit to have done was done rightfully, without adding any outside defence. In it, it is fitting to ask whether it was done by right. Once the cause is set, we shall be able to speak on this if we have learned from what parts right is made up. It consists, then, of these parts: nature, law, custom, judgment, fairness and goodness, agreement.
Right by nature is what is observed on account of kinship or dutiful affection, by which right parents are cherished by their children and children by their parents.
Right by law is what is established by the command of the people; for example, that you go to court when you are summoned.
Right by custom is what has been in use without law just as if it were lawful; for example, that what you have charged as paid to a banker you may rightly demand from his partner.
A matter judged is one on which sentence has been passed or a decree interposed. These are often different, so that one thing pleased one judge, praetor, consul or tribune of the plebs, and another pleased another; and it happens that on the same matter different men have often decreed or judged differently; for example: Marcus Drusus, the city praetor, granted an action when suit on a mandate was brought against an heir; Sextus Julius did not grant it.
Likewise: Gaius Caelius, as judge, acquitted of injury a man who had attacked the poet Lucilius by name on the stage; Publius Mucius condemned a man who had named the poet Lucius Accius. 20 Therefore, since cases decided differently on a similar ground can be produced, when this occurs we shall compare judge with judge, time with time, number with number of judgments.
Right by fairness and goodness is what appears to pertain to truth and the common advantage; for example, that a man older than sixty years, or one whom illness hinders, may appoint a representative. From this it is fitting that even new right be established, according to the occasion and the dignity of the man.
Right by agreement exists if the parties have bound themselves to anything between them, or if anything has been agreed among them. Some agreements are such as must be observed under the laws, in this way: “When they settle the matter, let him plead; if they do not settle it, let them present the case in the comitium or in the forum before noon.” There are likewise agreements which, without laws, are observed by mutual consent, and which are said to be binding by right.
By these parts, then, it is fitting that wrong be shown and right confirmed, which is what appears to be done in the absolute juridical issue.
21 XIV. When by comparison it is asked whether it was better to do what the defendant says he did, or what the accuser says ought to have been done, it will be fitting first to ask which was more advantageous on comparison, that is, which was more honourable, easier, more expedient. Then it will be necessary to ask whether he himself ought to have judged, or whether the power belonged to him. Then the accuser will interpose a suspicion drawn from the conjectural issue, why it should be thought that the act was not done on the principle of putting the better before the worse, but that the business was carried out with evil intent for some probable motive. The defender will refute in reply the conjectural argument of which we spoke before. Then it will be asked whether it could have been avoided that he come into that 22 position. When these points have been so treated, the accuser will use a commonplace against the man who put the useless before the useful when he had no power to decide. The defender, against those who hold it right that a ruinous thing be put before a useful one, will use a commonplace of complaint; and at the same time let him ask the accusers and the judges themselves what they would have done had they been in that place, and he will set before their eyes the time, the place, the matter and his own deliberation. XV. Transfer of the charge is when the defendant shifts the cause of the act to the wrongdoing of others. First it must be asked whether the charge is rightly transferred to another; then it must be seen whether the wrong that is transferred to another is as great as that which the defendant is said to have undertaken; then, whether he ought to have done wrong in a matter in which another had done wrong before; then, whether a trial ought to have been held first; then, since no trial has been held on that charge which is transferred to another, whether a trial ought to be held on a matter that has not come to trial. The accuser’s commonplace is against the man who thinks that violence ought to count for more than proofs. And the accuser will ask the adversaries what will happen if others do the same, taking punishment on men uncondemned, because they say that these men did the same. What if the accuser himself had wished to do the same? The defender will set forth the atrocity of the wrongdoing of those to whom he transfers the charge; he will set the matter, place and time before the eyes, so that those who hear may judge that it either could not have come to trial or would have been useless for it to do so. 23 XVI. Concession is that by which we ask to be pardoned. It is divided into excuse and plea for mercy.
Excuse is when we deny that we acted deliberately. It is divided into necessity, chance and thoughtlessness. These parts are to be shown first; then it seems we should return to the plea for mercy. First it must be considered whether it was by fault that the situation came to necessity. Then it must be asked how that force could have been avoided and lightened. Then, whether the man who ascribes the cause to necessity tried what he could have done or devised against it. Then, whether any suspicions can be drawn from the conjectural issue which show that what is said to have fallen out of necessity was done deliberately. Then, if there was indeed some necessity, whether it is fitting that it be thought a sufficient reason. 24 If the defendant says he erred through thoughtlessness, first it will be asked whether he could have been ignorant or could not; then whether pains were taken that it be known or not; then whether he was ignorant by chance or by fault. For one who says that through wine or love or anger he lost his reason will seem to have been ignorant through a fault of mind, not through thoughtlessness; therefore he will not defend himself by thoughtlessness but will burden himself with fault. Then, by the conjectural issue, it will be asked whether he knew or was ignorant, and it will be considered whether thoughtlessness ought to be a sufficient protection when it is agreed that the act was done.
When the cause is referred to chance, and the defender says on that account that the defendant ought to be pardoned, all the same points seem to be considered which were prescribed about necessity. For indeed all these three parts of excuse are neighbours to one another, so that nearly the same things can be adapted to all of them.
Commonplaces in these causes: the accuser’s, against the man who, though he confesses that he did wrong, nevertheless detains the judges with speech; the defender’s, on humanity and mercy: that in all matters it is fitting that intention be regarded; that what was not done deliberately ought not to count as a fault.
XVII. We shall use the plea for mercy when we admit that we have done wrong, and say neither that we did it thoughtlessly nor by chance nor of necessity, and yet ask to be pardoned. Here the ground for pardon is sought from these topics: if there appear to be more or greater services than offences; if there is some virtue or nobility in the one who pleads; if there is some hope that he will be of use in future if he departs without punishment; if the suppliant himself is shown to have been gentle and merciful when in power; if what he did wrong he did not from hatred or cruelty but moved by duty and upright zeal; if on such a ground others also have been pardoned; if no danger from him to us seems likely if we let him go; if no blame will be incurred either from our citizens or from any state 26 on that account. Commonplaces: on humanity, fortune, mercy, the changing of affairs. All these topics will be used from the contrary side by the one who speaks against, with amplification and an enumeration of the offences. This cause cannot become judicial, as we showed in the first book, but, because it can come before the senate or a council, it did not seem right to pass it over.
When we wish to remove the charge from ourselves, we shall lay the cause of our wrongdoing either on a thing or on a person. If the cause is laid on a person, it will first have to be asked whether the one on whom the cause is laid could do as much as the defendant will show; and in what way he could have been resisted honourably or without danger; if that is granted in the fullest measure, whether it is fitting that the defendant be pardoned because he acted at another’s prompting. Then the matter will be drawn into a conjectural dispute and it will be set out whether the act was done deliberately. If the cause is laid on some thing, nearly these same points and all that we prescribed about necessity will have to be considered.
27 XVIII. Since we seem to have shown sufficiently what arguments it is fitting to use in each kind of judicial cause, it seems to follow that we should teach how we can handle the arguments themselves elegantly and perfectly. For it is generally not difficult to find what helps the cause, but it is most difficult to polish what has been found and to deliver it readily. For this makes us neither linger longer than enough on the same topics, nor turn back again and again to the same points, nor leave an argument begun, nor pass awkwardly to another in turn. And so by this method we shall ourselves be able to remember what we have said at each point, and the hearer will be able to grasp and remember the arrangement both of the whole cause and of each single argument. 28 The most complete and perfect argument, then, is the one divided into five parts: the proposition, the reason, the proof of the reason, the embellishment, the summing up. The proposition is that by which So that we may use these five parts most completely, we shall handle an argument in this way:
XIX. “We shall show that Ulysses had a reason for killing Ajax.
he wished, from whom he feared, not without cause, the greatest danger to himself.
he was accustomed, if he could not by right, to contrive destruction for an enemy by any wrong, to which the unworthy death of Palamedes bears witness. Therefore both the fear of danger urged him to destroy the one from whom he dreaded punishment, and the habit of wrongdoing removed hesitation in undertaking the crime.
29 “For all men, while they undertake even the smallest offences with a reason, then indeed attempt to undertake those that are by far the greatest crimes led on by some sure gain. If hope of money has led many into wrongdoing, if very many have stained themselves with crime through desire of power, if many have not refrained from the greatest fraud for a slight profit, … A brave man, most upright, relentless in pursuing enmities, provoked by injury and roused by anger, a timid man, guilty, conscious of his own wrongdoing and treacherous, wished to destroy; a faithless man did not want a most bitter enemy to be safe. To whom, then, will this seem strange? For when we see wild beasts go eager and erect to harm another beast, we must not think it incredible that this man’s savage, cruel and inhuman mind also set out eagerly for the ruin of his enemy, especially since in beasts we see no reason, good or bad, while in this man we understand that there were always many and very bad reasons.
30 “If, then, I promised to give the cause that led Ulysses to the crime, and if I have shown that the bitterest enmity and fear of danger intervened, there is no doubt that he must admit there was a motive for the crime.”
The most complete argument, then, is the one that consists of five parts, but it is not always necessary to use it. At times the summing up must be omitted, if the matter is short enough to be easily held in memory; at times the embellishment must be passed over, if the matter seems too poor to be amplified and adorned. But if the argument is both short and the matter slight or humble, then both embellishment and summing up must be omitted. In every argument this rule that I have set out about the last two parts must be observed. The fullest argument, then, is the fivefold; the briefest is the threefold; the middle one, with either embellishment or summing up removed, is the fourfold.
XX. There are two kinds of faulty arguments: one that can be censured by the adversary, which bears on the cause; the other which, though trifling, does not need censure. Which are those that ought to be refuted by censure, and which silently despised and avoided without censure, you will not be able to understand clearly unless I add examples. This knowledge of faulty arguments will bring a twofold benefit. For it will warn us to avoid fault in argument and will teach us to censure suitably the fault which others have not avoided.
Since, then, we have shown that a perfect and full argument consists of five parts, in each single part of the argument let us consider what faults are to be avoided, so that we may ourselves keep away from these faults, and by this instruction test the arguments of our adversaries in all their parts and shake them at some point.
32 An exposition is faulty when something is ascribed to all that is not necessarily the attribute of all, but only of some or of the greater part; as if someone were to put it thus: “… to acquire riches rather than keep to duty in poverty.” If anyone has set out an argument in this way, without taking care to ask what sort of reason or proof of the reason there is, we shall easily censure the exposition itself by showing that what is true of some wicked poor man is falsely and unjustly laid on all the poor.
33 Likewise an exposition is faulty when what happens rarely is denied to happen at all, in this way: “No one can fall in love at a single glance, even in passing.” For when some one has fallen in love at a single glance, and the speaker has said no one, it makes no difference at all that it happens rarely, provided that it is understood to happen sometimes or at least to be able to happen.
XXI. Likewise an exposition is faulty when we show that we have gathered up all the possibilities and pass over some suitable one, in this way: “Since, then, it is agreed that the man was killed, he must have been killed either by robbers, or by enemies, or by you, whom he was making heir in part by his will. Robbers were never seen in that place; he had no enemy; it remains, if he was killed neither by robbers nor by enemies, because the former were not there and he had not the latter, that he was killed by you.” In an exposition of this kind we shall use censure if we show that others besides those he has gathered could have undertaken the crime; as in this example, when he has said that the man must have been killed by robbers or enemies or by us, we shall say that it could have been by the household or by our co-heirs. When in this way we have overthrown their enumeration, we shall have left ourselves a wider ground of defence. This too, then, is to be avoided in an exposition, that when we seem to have gathered everything, we leave out some suitable part. 34 Likewise an exposition is faulty which rests on a false enumeration, either if when there are more we name fewer, in this way: “There are two things, judges, that drive all men to crime: luxury and avarice.” What of religious scruple? What of fear of death? What of desire of power? What, finally, of many others? Likewise an enumeration is false when there are fewer and we name more, in this way: “There are three things that trouble all men: fear, desire, distress.” For it would have been enough to say fear and desire, since distress must be joined to both.
XXII. Likewise an exposition is faulty which is traced back too far, in this way: “Folly is the mother and material of all evils. She bears boundless desires. Boundless desires, moreover, are unlimited and immoderate. These bring forth avarice. Avarice, moreover, drives a man to any crime you like. Therefore our adversaries, led on by avarice, have committed this deed.” Here it was enough to state what was said last, that we may not imitate Ennius and the other poets, to whom it is allowed to speak in this way:
Would that in the grove of Pelion the fir-timbers had never fallen to the ground, felled by axes, and that from them the beginning of building the ship now called the Argo had never been made, in which chosen men of Argos were borne to seek the golden fleece of the ram from the Colchians, by the command of King Pelias, through guile; for then my mistress, wandering, would never have set foot out of her home.
For here it would have been enough to say, if the poets cared only for what was sufficient:
Would that my mistress, wandering, had never set foot out of her home. This tracing back from the very beginning, therefore, is greatly to be avoided in expositions. For it does not need censure, as very many others do, but is faulty of itself. 35 XXIII. A reason is faulty when it is not suited to the exposition, either through weakness or through emptiness. A reason is weak when it does not show necessarily that the matter is as the exposition states, as in Plautus:
To rebuke a friend for a deserved offence is a thankless act, but in the course of life useful and profitable.
This is the exposition. Let us see what reason is brought:
For I shall soundly rebuke my friend today for the offence he has deserved.
From what he himself is going to do, not from what it is fitting to do, he reasons what is useful. A reason is empty when it rests on a false cause, in this way: “Love is not to be shunned, for from it springs the truest friendship.” Or in this way: “Philosophy is to be avoided for it brings sloth and idleness.” For if these reasons were not false, we should admit that their expositions also are true. 36 Likewise a reason is weak when it brings a cause that does not necessarily belong to the exposition, as Pacuvius does:
The philosophers say that Fortune is mad and blind and brutish, and they declare that she stands on a round rolling stone; to wherever Chance has pushed the stone, they assert, Fortune falls. They repeat that she is blind for this reason, that she sees nothing to which she may attach herself; and they say she is mad because she is cruel, uncertain and unstable; brutish, because she cannot tell the worthy from the unworthy. But there are other philosophers who deny that Fortune has any place in a wretched life; they declare it is rashness. Experience itself, by trial, teaches that this is more likely; as Orestes was just now a king and has just now become a beggar. By shipwreck, surely, then, this was brought about, not by chance or by For here Pacuvius uses a weak reason when he says that things are done more truly by rashness than by Fortune. For on either opinion of the philosophers it could have happened that one who had been a king became a beggar.
37 XXIV. Likewise a reason is weak when it seems to be offered as a reason but says the same as was said in the exposition, in this way: “Avarice is a great evil to men, because men are afflicted with great and many troubles on account of their boundless desire for money.” For here the same thing is said in other words by way of reason that was said in the exposition.
Likewise a reason is weak when it supplies a cause of the exposition less suitable than the matter requires, in this way: “… are accustomed to practise piety.” Likewise: “It is useful to have true friends, for you may have people with whom you can joke.” For in reasons of this kind the exposition is confirmed not by a whole and complete reason but by a feeble one.
Likewise a reason is weak when it can be adapted to another exposition as well, as Pacuvius does, who brings the same reason why Fortune is called blind and why she is called brutish.
38 In the proof of the reason there are many faults to be avoided in our own speech and observed in that of our adversaries, and they must be considered the more carefully because a careful proof of the reason confirms the whole argument most powerfully.
Students, then, in proving the reason, use a double conclusion, in this way:
I am wronged by you, father, undeservedly; for if you think Cresphontes wicked, why did you give me to him in marriage? But if he is upright, why do you force me, unwilling, to leave one so good, he unwilling too?
What is concluded in this way will either be turned back from the opposite side or be censured from one simple part. From the opposite side, in this way:
I do you no undeserved wrong, daughter.
If he is upright, I gave you to him; but if he is wicked, I shall free you from your troubles by divorce.
It will be censured from one simple part if one or other part of the double conclusion is dissolved, in this way:
I was mistaken; afterwards I learned, and I flee what I have learned.”
Likewise a proof of the reason is faulty when we misuse as a certain sign of one thing something that signifies several things, in this way: “Since she is pale, she must have been ill”; or “She must have given birth, since she carries a baby.” For these things of themselves are not certain signs; but if the other similar circumstances also concur, such signs do somewhat increase the suspicion.
Likewise it is faulty when what is said against the adversary can apply either to another or to the speaker himself, in this way:
Likewise faulty is that which has a commonplace defence, in this way: “Led by anger, or youth, or love, he did wrong.” For if pleas of this kind are accepted, the greatest offences will pass away unpunished.
It is also a fault when something is taken as certain which is agreed by all to be still in dispute, in this manner:
Hey you, gods, who hold the power over the motions of the heavens above and below, you who reconcile peace among themselves and bring about concord.
For Ennius brought in the Thesprotian using this example as though by right, as if he had already shown by sufficiently certain reasons that it was so.
40 It is also a fault when something is said as though the business were already done and over, in this manner: “If it had come into my mind, citizens, I should not have allowed matters to come to this pass, for I should have done this or that; but at that time this reasoning escaped me.”
It is also a fault when something that rests on an open offense is nevertheless covered by some defense, in this manner:
When all sought you, in your most flourishing kingdom, I left you; now, forsaken by all and in the utmost danger, I alone prepare to restore you.
XXVI. It is also a fault when a statement can be taken in a different sense from that in which it was made. This is of the following sort: if some powerful and factious man should say in an assembly, “It is better to have kings than to have bad laws.” For even though this can be said without malice, to magnify a point, still, because of the power of the speaker it is not said without grave suspicion.
41 It is also a fault to use false or commonplace definitions. False ones are of this sort: if someone should say that an injury is nothing except what consists of a beating or an insult.
Commonplace definitions are those that can just as well be transferred to another case, as if someone should say: “An informer, to put it briefly, is a capital offender, for he is a wicked and pestilent citizen.” For he has offered no more a definition of an informer than of a thief, an assassin or a traitor.
It is also a fault to take as proof what lies within the matter under inquiry, as if someone accusing a man of theft should say that he is a wicked, greedy, and deceitful fellow, and that the proof of this is that he committed theft against him.
It is also a fault to resolve one controversy by another, in this manner: “It is not fitting, censors, that he should satisfy you by saying that he could not be present as he had sworn. What? If he had not come to the army, would he say the same to the military tribune?” This is a fault because a case that is not settled or decided, but is entangled and rests on a similar controversy, is brought forward as an example. 42 It is also a fault when the point on which the chief controversy rests is scarcely made clear and is left as though already settled, in this manner:
The speech speaks openly, if you understand:
I am pleased that such arms be given to one like him who bore them, if we strive to take possession of Pergamum.
Such a one I declare myself to be; it is right that I enjoy them.
Either as a kinsman or as a rival in valor.
It is also a fault for a speaker to disagree with himself in his own speech and to say the opposite of what he said before, in this manner: “For what reason should I accuse this man?”, and then to unfold it by reasoning it out:
For if he is respectful, why should you accuse one who is upright? But if he possesses a shameless disposition of mind, why should you accuse one who esteems what he hears as of small account?
XXVII. He seems, by no unsuitable reasoning, to have shown himself why he should not accuse. What next? What does he say?
Now I shall unravel you from the very beginning.
43 It is also a fault when something is said against the inclination of the judge or of those who hear, if the parties they favor or the men they hold dear are injured, or the inclination of the hearer is offended by some fault of this kind.
It is also a fault not to prove all the things that you promised in the statement of facts.
We must also take care lest the speaker talk of one matter when the controversy is about another; and in a fault of this kind it must be considered that nothing be added to the matter, or taken away from it, or the whole cause changed and turned into another cause; as in Pacuvius, where Zethus and Amphion have a controversy about music, which, by a dispute brought in, is spent upon the nature of wisdom and the usefulness of virtue.
We must also consider that the prosecutor’s accusation does not embrace one thing while the defender’s defense clears another, which many defendants often do on purpose, forced by the narrow limits of their case; as if someone, accused of having sought office by bribery, should say that he was often decorated with military gifts by the commanders in the army. If we observe this carefully in the speech of our adversaries, we shall often find that they have nothing to say on the point at issue. 44 It is also a fault to disparage an art, a science, or some pursuit because of the faults of those engaged in it; as those who disparage rhetoric because of the blameworthy life of some orator.
It is also a fault, because it is agreed that a thing has been done wrongly, to think it shown that it was done by a certain man, in this manner: “It is agreed that the dead man was disfigured, swollen, and discolored in body; therefore he was killed by poison.” Then, if it were so, as many do, that poison has been given, he would be struggling under no slight fault. For the question is not whether it was done, but by whom it was done.
It is also a fault, in comparing things, to think it necessary to disparage the one when you praise the other; for example, if the question is which of two peoples should be held in greater honor, the Albenses or the Vestini of Pinna, for having benefited the commonwealth of the Roman people, and the speaker should offend the one. For it is not necessary, if you rank one above the other, to disparage the other; for it can happen that, while you praise one more, you assign some share of praise to the other, lest you be thought to have fought eagerly against the truth.
It is also a fault to build a controversy over a name and word, a matter which usage can best decide; as Sulpicius, who had interposed his veto against the recall of exiles who had not been permitted to plead their cause, afterwards, his purpose changed, when he was proposing the same law, said that he was proposing a different one because of the change of names; for he said he was recalling not exiles but men driven out by force. As if the controversy had been over the name by which they were to be called, or as if all those who have been forbidden water and fire were not called exiles. But perhaps we forgive him if he acted with a reason; let us nevertheless understand that it is a fault to raise a controversy because of a change of names. 46 XXIX. Since embellishment consists of comparisons, examples, amplifications, previous judgments, and the other things that serve to increase and enrich the argumentation, let us consider what the faults are in these matters.
A comparison is faulty if it is unlike in some part and does not have an equal ground of comparison, or if it damages the very man who brings it forward.
An example is faulty if it is either false, so that it may be refuted, or dishonorable, so that it ought not to be imitated, or greater or less than the case requires.
A previous judgment will be faultily brought forward if it is brought forward about an unlike case, or about a matter on which there is no controversy, or about a dishonorable one, or of such a kind that more or more suitable judgments can be brought forward by the adversaries.
It is also a fault to argue about something that the adversaries confess to have been done and to make plain that it was done; for that ought to be amplified.
It is also a fault to amplify what ought to be proved, in this manner: as if someone, accusing a man of having killed a human being, before he has brought forward sufficiently suitable arguments, should heighten the offense and say that nothing is more shameful than to kill a man. For the question is not whether it is shameful or not, but whether it was done.
A conclusion is faulty if it does not embrace first what was said first, if it is not concluded briefly, and if it does not leave from the enumeration something certain and settled, so that it may be understood what was proposed in the argumentation, what next by the reason, what by the confirmation of the reason, what has been demonstrated by the whole argumentation. 47 XXX. Conclusions, which among the Greeks are called epilogues, are of three parts. For they consist of enumeration, amplification, and appeal to pity. We can use conclusions in four places: in the beginning, after the statement of facts, after the strongest argument, and in the conclusion.
Enumeration is that by which we gather together and remind the hearers of the matters on which we have spoken, briefly, so that the speech may be renewed, not repeated; and in order we shall recount whatever has been said, so that the hearer, if he has committed it to memory, may be led back to what he himself remembers. We must also take care that the enumeration of the speech is not repeated from the exordium or the statement of facts. For a speech will seem feigned and composed with deliberate labor, for the sake of showing off art, displaying talent, and exhibiting memory. Therefore the beginning of the enumeration must be taken from the division. Then, in order, the matters which will have been treated in the confirmation and the refutation must be briefly set forth.
Amplification is that which is taken by way of a commonplace for the sake of stirring the hearers. The commonplaces for increasing a charge will most conveniently be taken from ten precepts. 48 The first topic is taken from authority, when we recall how great a concern that matter was to the immortal gods or to our ancestors, kings, states, nations, the wisest men, the senate; and above all how it has been sanctioned by laws on these matters.
The second topic is when we consider to whom the things of which we complain pertain: whether to all, which is the most atrocious; or to superiors, such as those from whom the commonplace of authority is taken; or to equals, that is, those placed in the same circumstances of mind, body, and fortune; or to inferiors, who are surpassed in all these respects.
The third topic is that by which we inquire what will happen if the same thing is allowed to all, and, this being neglected, we shall show what dangers and disadvantages will follow.
The fourth topic is that by which it is shown that, if this man is permitted, many will be more eager for wrongdoing, whom hitherto the expectation of judgment holds back.
The fifth topic is when we show that, if once a different judgment is given, there will be nothing that can remedy the harm or correct the error of the judges. In this topic it will not be unsuitable to use a comparison with other matters, to show that other things can be quieted by time or corrected by counsel, but that nothing will be a help to soften or correct this. 49 The sixth topic is when we show that the deed was done on purpose, and say that for a voluntary crime there is no excuse, while for one done in ignorance a just plea for mercy is ready.
The seventh topic is that by which we show the deed to be foul, cruel, wicked, and tyrannical; such as outrages upon women, or something of those things for which wars are undertaken and men fight with enemies for their lives.
The eighth topic is that by which we show the wrong to be not common but singular, loathsome, wicked, and unusual; for which it must be avenged the more speedily and severely.
The ninth topic is that which consists of a comparison of offenses, as when we shall say that it is a greater crime to violate a freeborn person than to rob a temple, because the one is done through poverty, the other through intemperate arrogance.
and at the same time show that we grieve for their anxiety and misery, not for our own misfortunes; if we disclose our own mildness, kindness, and compassion which we have shown toward others; if we show that we have always, or for a long time, been in misfortune; if we lament our fate or fortune; if we show that our spirit will be brave and patient of hardships. The appeal to pity must be brief, for nothing dries faster than a tear.
We have treated in this book almost the most obscure topics of the whole art; therefore let this be the limit of this volume. The remaining precepts we shall carry over, as far as seems good, into the third book. If you will consider these things carefully, both with us and without us, as we have carefully written them, we shall gain the fruit of our industry from your knowledge, and you yourself will praise our diligence and rejoice in your understanding; you will be more learned in the precepts of the art, and we more eager to complete what remains. But I know well that this will be so, for I am not ignorant of you. Let us now pass on to the other precepts, that we may gratify your most upright wish, as we do most gladly.