But as it is not in itself sufficient to know that all proofs are drawn either from persons or things, because each of these groups is subdivided into a number of different heads so he who has learned that arguments must be drawn from antecedent, contemporary or subsequent facts will not be sufficiently instructed in the knowledge of the method of handling arguments to understand what arguments are to be drawn from the circumstances of each particular case;

especially as the majority of proofs are to be found in the special circumstances of individual cases and have no connexion with any other dispute, and therefore while they are the strongest, are also the least obvious, since, whereas we derive what is common to all cases from general rules, we have to discover for ourselves whatever is peculiar to the case which we have in hand.

This type of argument may reasonably be described as drawn from circumstances, there being no other word to express the Greek περίστασις or from those things which are peculiar to any given case. For instance, in the case of the priest who having committed adultery desired to save his own life by means of the law This law and those which follow are imaginary laws invented for the purposes of the schools of rhetoric. which gave him the power of saving one life, the appropriate argument to employ against him would run as follows: You would save more than one guilty person, since, if you were discharged, it would not be lawful to put the adulteress to death. For such an argument follows from the law forbidding the execution of the adulteress apart from the adulterer.

Again, take the case falling under the law which lays down that bankers may pay only half of what they owe, while permitted to recover the whole of what they are owed. One banker requires payment of the whole sum owed him by another banker. The appropriate argument supplied by the subject to the creditor is that there was special reason for the insertion of the clause The argument is far from clear. The case assumes that by a species of moratorium a banker may be released from payment of his debts in full to ordinary creditors. This moratorium does not however apparently apply to debts contracted between banker and banker. sanctioning the recovery of the whole of a debt by a banker, since there was no need of such a law as against others, inasmuch as all have the right to recover the whole of a debt from any save a banker.

But while some fresh considerations are bound to present themselves in every kind of subject, this is more especially the case in questions turning on the letter of the law, since not merely individual words, but still more whole phrases are frequently ambiguous.

And these considerations must vary according to the complexity of laws and other documents, whether they are in agreement or contradictory, since fact throws light on fact and law on law as in the following argument: I owed you no money: you never summoned me for debt, you took no interest from me, nay, you actually borrowed money from me. It is laid down by law that he who refuses to defend his father when accused of treason thereby loses his right to inherit. A son denies that he is liable to this penalty unless his father is acquitted. How does he support this contention? There is another law to the effect that a man found guilty of treason shall be banished and his advocate with him.

Cicero in the pro Cluentio xxxvi. 98. The lex Iulia de ambitu contained a provision that the penlty (loss of civil rights) incurred by conviction for ambitus should be annulled if the condemned man could secure the conviction of another person for the same offence. says that Publius Popilius and Tiberius Gutta were not condemned for receiving bribes to give a false verdict, but for attempting to bribe the jury. What is his argument in support of this view? That their accusers, who were themselves found guilty of bribing the jury, were restored in accordance with law after winning their case.

But the consideration as to what argument should be put forward requires no less care than the consideration of the manner in which we are to prove that which we have put forward. Indeed in this connexion invention, if not the most important, is certainly the first consideration. For, just as weapons are superfluous for one who does not know what his target is, so too arguments are useless, unless you see in advance to what they are to be applied. This is a task for which no formal rules can be laid down.

Consequently, though a number of orators, who have studied the same rules, will use similar kinds of arguments, one will discover a greater number of arguments to suit his case than another. Let us take as an example a controversial theme involving problems that have little in common with other cases.

When Alexander destroyed Thebes, he found documents showing that the Thebans had lent a hundred talents to the Thessalians. These documents he presented to the Thessalians as a reward for the assistance they had given him in the campaign. Subsequently the Thebans, after the restoration of their city by Cassander, demanded that the Thessalians should repay the money. The case is tried before the Amphictyonic council. It is admitted that the Thebans lent the money and were not repaid.

The whole dispute turns on the allegation that Alexander had excused the Thessalians from payment of the debt. It is also admitted that the Thessalians had received no money from Alexander. The question is therefore whether his gift is equivalent to his having given them money.

What use will formal topics of argument be in such a case, unless I first convince myself that the gift of Alexander made no difference, that he had not the power to make it, and that he did not make it? The opening of the Thebans' plea presents no difficulty and is likely to win the approval of the judges, since they are seeking to recover by right what was taken from them by force. But out of this point arises a violent controversy as to the right of war, since the Thessalians urge that kingdoms and peoples and the frontiers of nations and cities depend upon these rights.

To meet this argument it is necessary to discover in what respect this case differs from others which are concerned with property that has fallen into the hands of the victor: the difficulty moreover lies not so much in the proof as in the way it should be put forward. We may begin by stating that the rights of war do not hold good in any matter which can be brought before a court of justice, and that what is taken by force of arms can only be retained by force of arms, and consequently, wherever the rights of war hold good, there is no room for the functions of a judge, while on the contrary where the functions of the judge come into play, the rights of war cease to have any force.

The reason why it is necessary to discover this principle is to enable us to bring the following argument into play: that prisoners of war are free on returning to their native land just because the gains of war cannot be retained except by the exercise of the same violence by which they were acquired. Another peculiar feature of the case is that it is tried before the Amphictyonic council, cp. § 118. The Amphictyonic Council of Delphi in the fourth century B.C. had come to be an international council, in which the great majority of the states of Greece were represented. and you will remember that we have to employ different methods in pleading a case before the centumviral court and before an arbitrator, though the problems of the cases may be identical.

Secondly we may urge that the right to refuse payment could not have been conferred by the victor because he possesses only what he holds, but a right, being incorporeal, cannot be grasped by the hand. i.e. a right can only be transferred by the possessor, not by force or seizure. It is more difficult to discover this principle than, once discovered, to defend it with arguments such as that the position of an heir and a conqueror are fundamentally different, since right passes to the one and property to the other.

It is further an argument peculiar to the subject matter of the case that the right over a public debt could not have passed to the victor, because the repayment of a sum of money lent by a whole people is due to them all, and as long as any single one of them survives, he is creditor for the whole amount: but the Thebans were never all of them to a man in Alexander's power.

The force of this argument resides in the fact that it is not based on any external support, but holds good in itself. Proceeding to the third line of argument we may note that the first portion of it is of a more ordinary type, namely that the right to repayment is not based on the actual document, a plea which can be supported by many arguments. Doubt may also be thrown on Alexander's purpose: did he intend to honour them or to trick them? Another argument peculiar to the subject (indeed it practically introduces a new discussion) is that the Thebans may be regarded as having in virtue of their restoration recovered the right even though it be admitted that they had lost it. Again Cassander's purpose may be discussed, but, as the case is being pleaded before the Amphictyonic council, we shall find that the most powerful plea that can be urged is that of equity.

I make these remarks, not because I think that a knowledge of the places See V. x. 20. from which arguments may be derived is useless (had I thought so, I should have passed them by)but to prevent those who have learnt these rules from neglecting other considerations and regarding themselves as having a perfect and absolute knowledge of the whole subject, and to make them realise that, unless they acquire a thorough knowledge of the remaining points which I am about to discuss, they will be the possessors of what I can only call a dumb science.

For the discovery of arguments was not the result of the publication of text-books, but every kind of argument was put forward before any rules were laid down, and it was only later that writers of rhetoric noted them and collected them for publication. A proof of this is the fact that the examples which they use are old and quoted from the orators, while they themselves discover nothing new or that has not been said before.

The creators of the art were therefore the orators, though we owe a debt of gratitude also to those who have given us a short cut to knowledge. For thanks to them the arguments discovered by the genius of earlier orators have not got to be hunted out and noted down in detail. But this does not suffice to make an orator any more than it suffices to learn the art of gymnastic in school: the body must be assisted by continual practice, self control, diet and above all by nature; on the other hand none of these are sufficient in themselves without the aid of art.