De nuptiis Philologiae et Mercurii, Book V (De rhetorica), part 1 of 4 (about §§ 425-453)
Meanwhile trumpets sounded and a hoarse song of the salpinx rang through the air, and heaven bellowed back with an unknown clangor: the gods were thrown into confusion and took fright, and the common throng of the lesser heavenly beings trembled; their hearts, ignorant of the cause, shuddered lest the crimes of the old Phlegra be renewed. Then the Rivers and Fauns, Pales, Ephialtes and the Nymphs of the glens looked back at the chiefs and, astonished, saw them rise with no motion, and wondered at the tranquil calm in their sacred breasts, speaking in turns. Then Silvanus, who by chance had just set down his cypress, stirred and trembling, was stretching out an unarmed right hand, calling for the Delian bow and for Hercules’ weapons; Portunus, sighing, demanded a trident-pointed spear; Gradivus’ spear he did not dare ask for; Saturn, accustomed to rustic war, sought his sickle; and each, distrustful of himself, looked back to the weapons of the Thunderer.
But while the great plebs of the earthly gods were thus disturbed, behold, a woman came in, of somewhat low stature and of great confidence, distinguished also by the beauty of her face, with a crested helmet and a head crowned with regal majesty, and in her hands weapons that gleamed with a kind of lightning flash, with which she was wont either to strike her friends or to wound her adversaries. Her under-armour dress was covered by a mantle wound about her shoulders in the Latin manner, variegated with the light of all figures, and displaying the forms of all; her breast was girt with a belt of the most exquisite colors of gems. When in her advance she clashed her weapons, you would say that thunder crackled, as if from the shock of a lightning cloud with bursting reports. In short, it was believed that she could hurl thunderbolts like Jove. For like a queen powerful over all things, she could drive wherever she wished and lead away from wherever she wished, turn to tears and rouse to rage and change into other looks and feelings, both cities and armies, whatever hosts of peoples she could. She was said to have tamed the senate, the rostra and the courts among the Romulean race, and in Athens to have turned the council-house, the gymnasia and the theatres at will and to have thrown all Greece into confusion from the foundations. When she spoke, what a look and sound of voice, what excellence and loftiness of speech! It was worth even the gods’ while to hear the genius of so great an invention, the eloquence of so fertile an abundance, the treasure of so capacious a memory and recollection. What order of arrangement, how fitting a modulation of delivery, what gesture in motion, what depth in conception! Finally, slender in small matters, easy in moderate ones, a flame in exaltation. And she made all docile in doubtful things, yielding in persuasion, discordant in clash, arrogant in praises. But when with the attestation of a public name she had cried out for some advantage, all things seemed to fluctuate, to be mingled, to burn. This woman, then, pouring forth a golden voice and certain gems of diadems and kingdoms, was followed by a huge train of illustrious men. Among them, nearest to her, two shone forth in different dress and nation, of whom one was wrapped in a Greek cloak and the other in the trabea. The sound of their speech was different, though the one said he too had learned Greek at Athens, and was held ready in the studies of the gymnasia and in the altercations ever resisting the Academy. Both, however, were new men and had come forth from the lap of poverty. And since a Quirinal knight begot one, the industry of a smith the other, they so flourished in excellence of tongue that after the fates of the senate-houses and undeserved deaths they climbed to the stars by virtue and surpassed the ages by the immortality of glory. Of the one, however, whom the people of Athens and the cloaked bands followed, this report had agreed: that he was most keen and more violent than the storms and roar of an indignant ocean. Finally, a verse of this kind was reported of him: “a terrible man, he might soon blame even the blameless.”
The other, however, whom consular purple and the laurel of an extinguished conspiracy crowned, as soon as he entered the council-house of the gods, rejoicing that he had come into the sight of Jove, began to cry out more joyfully: “O fortunate us, O happy republic, O renowned glory of my consulship!” After these, however, in various bands you would have seen orators, now retired, displaying the height and merits of illustrious tongues, Aeschines, Isocrates and Lysias, then in the toga-wearing bands the Sosantii, the Gracchi, Regulus, Pliny and Fronto. But before all of them, and before the woman herself, the leader of all, an old man went ahead, bearing a standard and a guiding rod in the manner of a Roman lictor, and on the tip of that same rod a raven with a golden beak flew before the woman as she came, as an auspice. He who carried the little rod was called Tisias and seemed older and loftier than all. For both his juniors and the rest, looking at that leader herself, he spoke of the raven set on top as a common pledge and his daughter. By this sign very many of the gods were moved and believed that she was a most noble woman, but either a kinswoman of Apollo, if she was Greek, or, if from the Romulean race, of the Corvini. To this riddle was added that, undaunted and of readier confidence, she kissed the breast of both Pallas and Cyllenius himself, revealing tokens of a certain close familiarity. In short, some of the gods, amid the trembling at the herald’s trumpet and the wonder at the friendship of the gods, uncertain, wished to question the diviner Phoebus, Jove the greatest not yet inquiring, and tumultuously asked who she was. Then she, looking at all the gods and somewhat more moved, began thus: “Father Jove the greatest and the rest of the heaven-dwellers, whom I have often entreated in very many causes, and the very assembly of the celestial session I call to witness that I deem nothing more inconsistent or unseemly for me than that I, who always in the forum and the courts have accused very many and defended many others, and who, having striven with all my strength for glory in the contest, have procured for myself the heralding of deserved results from the fates of the perils, am now before you, O gods, to whom it seemed pleasing to take the likeness [and the price] of immortality, unwillingly compelled to recall the admonitions of the schoolboys of youth and the meagre precepts of a hackneyed art. Nor does want ascribe this to us, since swarming ranks of followers are at hand, and since, apart from those who, disturbing the hearts and senses of all, have even broken the benches of the knowing, I have others who have written out the minutiae of precepts and the inventions of the inmost art; but between both the pillar of followers shines forth, my Tully, who not only thundered in the forum, senate and rostra with the majesty of a grand-speaking faculty, but also, devising the precepts of the art itself, consecrated very many books to the uses of the ages. Since this is so, the modesty of grandeur long since earned, and the glory of a celebrated name so far as possible, would refuse to run through these first beginnings, were not what you command also tending toward the reward of immortality, and did not confidence of perpetuity kindle me to carry it out, Jove, with the gods, commanding even the beginnings. I shall gird myself, then, to run through these drier matters, likely to please less indeed than I am wont to please in public, although if the assent of Pallas’s ears and the Arcadian reasoning shared in a favoring majesty, not even now shall I displease before you, O greatest heaven-dwellers. For I am Rhetoric herself, whom some have called an art, others a virtue, others a discipline. An art because I am taught, although Plato objects to this word. They call me a virtue who have found that the science of speaking well is in me. And those who are not ignorant that the inmost reason of speaking can be learned and acquired boldly assert that I am a discipline.
My OFFICE is to speak aptly for persuading; the END is to persuade by speech what is proposed. These words I attest from my Cicero, by whose very examples I shall consistently make use of myself, led through all the recesses of instruction. The matter is twofold, where and whence the speech is made: WHERE, [as] when I approach the members of the question itself; WHENCE, when the things found and words are united. The QUESTION itself is either DEFINITE or INDEFINITE. Definite, when it arises about a certain deed and points to a person, as in the Roscian case it is asked, by Cicero, whether Roscius killed his father. Indefinite is that which asks generally whether something is to be sought, as whether one should philosophize is discussed in the Hortensius. In the former I contend frequently and constantly, and it pleased the Greeks to name it hypothesis. In the indefinite, which claims for itself confidence in establishing a universal, I engage rather when I approach leisure and disputations, although very often the part itself which is called thesis has furnished me, panting more loftily in causes, with thonged spears and javelins of great force. Another in the Scaurian case occurs, when with a disputation interposed it is discussed “from what causes sudden death comes,” and in the speech for Milo likewise whether the world is governed by prudence. In short, some of my followers, moved by very keen and subtle reasoning, attest that there is no hypothesis [question], for all that is handled in defence of the accused and against them in accusations can be applied to general questions.
Now that the parts of my office are five is not doubtful. For there are invention, arrangement, elocution, memory and delivery. For judgment, which is said by some, is ascribed to all the parts, and therefore cannot rightly be counted a part itself, although the management of judgment examines what is to be said and what to be silent about. INVENTION is the keen and searching grasp of questions and arguments. ARRANGEMENT is that which assigns order to things. ELOCUTION is that which seizes words, proper or transferred, which makes new ones and composes old. MEMORY is the firm custody of things and words. DELIVERY is the moderation of voice and gesture according to the dignity of things and words. But of these invention is certainly the chief, whose work is to search out the questions of the cause and to find arguments fit for proof. Of questions there are two kinds. Some are principal, others incidental. The principal are the states from which the cause arises, which Tully calls constitutions, in De Inventione and often. The INCIDENTAL are those which arise while the cause is being handled, while by refuting arguments or writings it is drawn out into several questions, as the principal is whether Milo killed Clodius rightly, the incidental, which of the two laid snares for the other.
The principal states, then, are three in number: whether it is, what it is, of what sort it is. WHETHER IT IS is conjecture, as whether Roscius killed his father. WHAT IT IS is definition, as whether Cornelius diminished the majesty. OF WHAT SORT is quality, as whether Saturninus was rightly killed. But lest perhaps it move you that I pass over a fourth state, which Hermagoras invented, the subtler reason is to call it not a state but a part of quality, which I shall show in its exposition. Now it must be said how the states are found in a cause. They are found, then, through the charge and the rebuttal. THE CHARGE is the objection of that deed which has come into judgment. THE REBUTTAL is a kind of resistance to the charge, as if it is said, “you killed your father,” “I did not kill him.” From these two voices running against each other arises the question, which is called the STATE, because there, as it were, the battle-line of actions is drawn up for fighting. But it is easy to see what is answered to the crime charged. What is not easy is what ought to be charged, whether the deed, as “you killed a man,” or the name of the deed, as “you committed homicide.” And although it seems the same, yet in the former charge, if it is denied, it will be conjecture, when he says “I did not kill”; in this one, where the name of the thing is charged, it may also seem to be definition, if he says “I did not commit homicide,” whoever the man is, or when an innocent man is killed. But if you charge not the deed but the name of the crime, by the denial of the other side it will not be manifest which state arises. For you would not know what he denies who denies thus, “I did not commit homicide,” whether because he cut the throat of no man or because the killing of a tyrant is not called homicide. What must be charged, then, is that very thing that was done, so that, if the adversary denies it, you have conjecture; if, that being conceded, he excludes the name of the crime, you charge definition. But if, the deed and the name of the deed being conceded, he says that it was lawful or fitting for him to do it, quality is in the cause, which deals either with the thing or with the action: with the thing, as “Milo was allowed to do it”; with the action, whether it is lawful to appeal to the tribunes for a slave or a bound debtor, whether it is lawful for a disgraced person to hold an assembly. This kind of quality is called transference. Likewise we must take care not to charge what is the office of the hearer, and so make quality alone the state. For he who hears the cause has the purpose of effecting something, that is, either to condemn someone or to acquit.
Of hearers there are three kinds. One is of him who decides something according to equity, and he is properly the JUDGE. Another is of him who, doubtful about honor or advantage that is uncertain, and not able to resolve it, awaits the persuasion of another’s opinion: the DELIBERATOR. The third kind is of him who weighs the honor or shame of a deed by free estimation; it is fitting to call him the ESTIMATOR. These, then, are the three kinds of causes contained in the hypothesis, that is, judicial, deliberative and demonstrative. But since doubt about their office leads away the hearers of all the aforesaid, the difference and the proper character of each must be sought. For the judge also, whose office is to condemn or acquit the accused, to give or take away possession, before he has learned the cause, is in doubt how to use his office. And he who deliberates is carried off by an ambiguous opinion of mind. And the arbiter of praise manages by estimating contemplation whether anyone is rightly praised. But since these offices are drawn in different directions, we especially note the difference in how they vary in times. For deliberation holds a question of future time only: as if Cato should deliberate whether he ought to kill himself rather than look upon the victorious Caesar. But the judicial kind is found sometimes in past, sometimes in future time. But in the past it is only conjecture about the deed. From the future, quality frequently arises, as will be asserted more readily in its place. The laudatory kind also consists wholly in past deeds, but is distinguished from the judicial kind by a thin line. For it is one thing to acquit the innocent by the command of equity, another to follow the glorious with praises on contemplation of distinguished merits. Add that in the judicial kind the hearer is in doubt about matters belonging to others [each both about his own and about external matters], in the laudatory the estimator listens to whether true and fitting things are mentioned, although newer flatteries have contributed this, that the one praised becomes the arbiter of his own praise.
We ought therefore to look more attentively lest we charge what belongs to the office of the hearer, as if it is said to Verres that he is to be condemned. For he answers that he is not to be condemned, and whether he is to be condemned will appear as quality alone. Therefore the charge arises from the objection of the deed, as if you say to the same, “you plundered Sicily,” he will answer, “I did not do it,” and conjecture is formed. For it is foolish to charge that which remains in the judge’s decision, or the certain name of the deed, and not the crime itself. One must take care likewise that, when some law or writing is handled in the cause, the charge is not taken from the law, as if you say, “the law forbade you to climb the wall as a foreigner,” but rather say, “you climbed the wall,” so that if he denies it, the fight is not about the law but about the deed, to which the law yields; if he confesses the deed, then he will seem to have acted against the law. But if, the deed being denied, the law or any writing is read out, the contention will seem superfluous, since the dispute concerns not law but truth. Many are deceived by this fault.
But besides those three states which I have asserted, they have said that there are four or five others arising from the quality of the writing. Although these obtain their parts in the division of the cause, they are never born in the principal place, because unless there is something to be proved, no one reads out a law or some form of writing for proving. That which is proved is the state, which always arises from the first conflict. The other questions or controversies are to be held incidental. Thus the method of finding the state will be easy when neither the name of the act admitted, nor the office of the hearer, nor a law or some writing is put in the place of the charge [which could be objected]. So such a charge, “you killed a man,” and rebuttal, “I did not kill,” the question arises from these, “did he kill?”, in which the state will be conjecture. But when the accused opposes the right of the deed to the charge, quality arises, as when Milo is not accused of not having done it but the contention is about the right of the deed. For he confessed that he had killed Clodius but that he had done it rightly. To this rebuttal a reason is subjoined, which is not single or simple. For one and the same deed can seem justifiable for various causes, as this same thing, that Milo had killed a man who laid snares, was one reason, another that he said he had slain an enemy of the republic and one suspected of aiming at tyranny. In these assertions quality is indeed made, but its diverse species break forth. For first relative, second comparative quality shines. But if to the charge there is opposed not the right of the deed but the denial of the name, although the denial is said in the place of rebuttal, yet it will not make conjecture, because not the deed but the name of the deed is destroyed, as in this case it is an action for adultery. When a husband, having repudiated his wife, found the seducer, he accuses him of adultery. The accused replies and does not deny the deed but excludes the name of adultery and asks what adultery is, which is a DEFINITIVE CONTROVERSY. Conjecture, then, is the denial of the deed itself; definition is the denial not of the act admitted but of the name, and therefore also the rebuttal of the crime imputed, because when another name is put on the deed, the imminent danger of the objected charge is denied, as in this charge: “you stole cups of the temple from the house of the priest; you committed sacrilege.” He replies: “I took the cups indeed, but because it was from a house and not the temple, it should be called theft and not sacrilege.” In this too there seems to be another denial of the deed. For this does not look to an injury of the gods but to the loss of the priest, since the cups are taken from a house. Here each must be treated by definition, that is, both what sacrilege is and what theft is.
Now must be spoken of quality, whose manifold nature first desires a division of parts, that, when these have been run through, the property of each may be explained. Quality, then, is either of the thing or of the action. Of the thing, when the reason or cause of the deed that has come into judgment is handled, or when it is disputed what ought to be done, as whether Milo rightly cut Clodius’s throat, or whether Tully’s house ought to be restored. Of the action, however, when it is asked whether the action should be admitted and a judgment held. This part, since it is weighed by the equity of law, we rightly and more subtly gather among the species of quality, but Hermagoras otherwise, who wished to distinguish it from quality as a new constitution and to call it transference or prescription. But of this later. Quality is estimated either of future time or of past. And of the past it is JURIDICAL, of the future NEGOTIAL QUALITY. In both there is an assertion of right. In the juridical, assertions of nature are engaged; in the negotial, those of law or custom. The juridical is divided into the absolute and the assumptive. THE ABSOLUTE is that which defends the deed itself by its own nature and right. THE ASSUMPTIVE is that which, finding nothing probable in the deed itself, takes refuge in the cause itself and alleges it as just [that he ought to have done it], as when Milo cannot say that it was lawful to cut a man’s throat, he established as the cause of killing the snares of Clodius. It received the name assumptive because, since it cannot defend the deed absolutely, it flees to the causes. This assumptive, then, has four parts: relation, removal, comparison, concession. RELATION is when, having confessed the deed, one shifts the blame onto him whom he struck, as Milo upon Clodius, Orestes upon his mother, Horatius upon his sister, who said he had slain her for this reason, that, provoked by her insult, he had been driven to the deed. REMOVAL is when the crime charged is removed to another person or to another thing than the one who is attacked. To another person, as Tiberius Gracchus to Mancinus, who was the author of making the treaty, which both the senate and the people had disapproved. Likewise in such a case: “let an envoy who has not set out within thirty days be punished with death. The quaestor gave the envoy no expenses. The time elapsed. The accused replies and removes the crime charged to the quaestor.” To another thing, however, he removes if, delayed by illness, he removes the cause of his delay to his misfortune. The deed itself is removed if it is said to have belonged to another’s power, or the cause, if it is said that something happened by another’s fault. COMPARISON is what I have learned is called COMPENSATION by later writers, not when a benefit of another time is substituted for the crime, but when the deed is defended by right, because some advantage would follow from it. For if the merit of another time is mentioned as if in grace of compensation, it should rather be moved to the deprecatory quality, which is contained in the species of pardon; but this contends that it rightly acted, as that reply of Verres: “I sold the tithes at a great price,” which compensates the deed by the utility of the benefit. In this part there is a confession of the deed, but an allegation of merit excludes the enormity of the charge. But in that other, there is one confession of the crime and the deed, but either one clears oneself of intent or, purgation ceasing, breathes toward the pity of humanity. This quality of pardon, however, is distinguished in two assertions: purgation and deprecation. PURGATION is when, the crime confessed, we clear the mind and will; its modes, undoubtedly, are three, that is, imprudence, chance, necessity. Imprudence is when we remove something from our wish and knowledge, as “a man in hunting threw a javelin at a beast and killed a man hidden in the nets,” which part is called error, and under it are placed ignorance, drunkenness, forgetfulness, folly, madness and the rest which excuse the error of the one who commits it. CHANCE, however, the event relieves of guilt, as one who did not come with the victims to the sacred day because he met with the swelling of a river. He committed a crime by NECESSITY who at a general’s command cut the throat of an innocent man. Among these modes the difference is that imprudence deceives, chance prevents, necessity compels. DEPRECATION, however, associates no pleading but sighs toward the humility of entreating and prayers. The other questions, which they call incidental states, let those attend who have learned such things, in such a way that the first uttering of the voice forms the demonstration within. For most often the second strikes the force of the charge, as in this: “let the brave man have what reward he wishes: the man who acted bravely asks as reward the marriage of another man’s wife.” In this he who asks the reward, because he thinks there is none on the other side, charges nothing, but the husband, the contradictor, charges, although he seems to rise in the second place. To him the brave man will oppose by rebuttal, as though the accuser sought the reward he had demanded, contending that the reward is just, as though he defended some deed by right. Likewise the legal questions, which I have mentioned as incident to causes like states, are not reckoned by the same rule, since they break forth in the second conflict. For the first is assigned to quality. That rule of charge and rebuttal, therefore, is disturbed in the aforesaid part of quality. Now I shall take up in due order what the Greeks call to krinomenon (the point for judgment). For when the charge and rebuttal marked the state and constitution, if it is conjecture it will equally furnish the reason for the judgment. For there is nothing which can be weighed by the judgment except the denial itself. In quality, however, or definition in another place, where the state appears, it is necessary that the [confessed] rebuttal of the deed have a reason, which the accuser likewise weakens, and a kind of secondary question is begotten through the reason and the impugning of the reason. Here the matter for judgment can be engaged, and it is what the estimator may weigh by the reason of the just, that in any cause every state can exist. And the reasons are many and the infirmations numerous, and likewise the seeds of judgments abundant, when one deed is defended by manifold reason, as Tully for Milo, that he killed a man who laid snares and an enemy of public peace. In these, then, that state will rather appear which the orator has taken for the advantage of the defence. That reason also is for the most part collected from the orator’s construction, and then, as if rationally, other states will emerge, and so the writing is brought forward for proofs. Hence will arise the LEGAL JUDGMENT, of which there are five species. One is when in the writing something or several things are contained ambiguously, which is called by the Greeks amphibolia, as from the community of a name a thing is often confused, as in this: “a man bequeathed a BULL,” a name by which he had had a very precious slave. But the heir gave a bull, that is, an ox, because he made the ambiguous name a question. Likewise from the distinction of names by syllable, as a man had two relatives, one named Lesius and the other Milesius, and, constituting his heir, spoke thus: “LET THE HEIR BE MILESI.” By this ambiguity of distinction a dispute arose, while “let me be heir” distinguishes the man who was called Lesius; the other, with the continuous joining of the name, says Milesius is the heir. There are also modes which dialectical construction comprehends. Likewise the species of the writing-question is that which emerges from the words and the sense of the writing, as in this: “let a foreigner not climb the wall. A man, in a besieged city, climbed it and cast down the enemy. He is accused.” Here the accused relies on the sense of the law, the accuser on the words. The third kind of question is when contrary laws clash with each other on both sides, as in that: “let a male not enter the temple of Ceres.” Likewise: “let him who has not brought help to his parents be punished. A son, entering the temple of Ceres, brought help to his mother who was being beaten there. He is accused.” The diversity of laws makes the conflict here, whose interpretation is brought into collision, so that it may appear which should rather be obeyed.