Institutio Oratoria

if we first make up our minds what it is precisely that we desire to effect: for, this done, we shall be able to suit our words to serve our purpose. To make my meaning clearer, I will follow my usual practice and quote a familiar example.

A man who has stolen private money from a temple is accused of sacrilege.

There is no doubt about his guilt; the question is whether the name given by the law applies to the charge. It is therefore debated whether the act constitutes sacrilege. The accuser employs this term on the ground that the money was stolen from a temple: the accused denies that the act is sacrilege, on the ground that the money stolen was private property, but admits that

It is sacrilege to steal anything from a sacred place.

It is sacrilege to steal something sacred.

A definition may be overthrown on two grounds: it may be false or it may be too narrow. There is indeed a possible third ground, namely irrelevance, but this is a fault which no one save a fool will commit.

[It is a false definition if you say,

A horse is a rational animal,

or from a sacred place.

But the most effective method of establishing and refuting definitions is derived from the examination of properties and differences, and sometimes even from considerations of etymology, while all these considerations will, like others, find further support in equity and occasionally in conjecture. [*]( Conjecture is here used in the ordinary sense, not the technical. ) Etymology is rarely of assistance, but the following will provide an example of its use.

For what else is a 'tumult' but a disturbance of such violence as to give rise to abnormal alarm? And the name itself is derived from this fact.

Great ingenuity may be exercised with regard to properties and differences, as for instance in the question whether a person assigned to his creditor for debt, [*](cp. III. vi. 25. )

A slave is one who is legally in a state of servitude.

A slave is one who is in a state of servitude on the same terms as a slave (or, to use the older phrase, 'who serves as a slave').

For the opponent will say that the person in question is actually serving as a slave or is legally in a state of servitude. We must therefore look for properties and differences, to which in passing I devoted a brief discussion in my fifth book. [*](V. x. 60.) A slave when manumitted becomes a freedman: a man who is assigned for debt becomes a free man on the restoration of his liberty. A slave cannot acquire his freedom without the consent of his master: a man assigned for debt can acquire it by paying his debt without the consent of his master being necessary. A slave is outside the law; a man assigned for debt is under the law. Turning to properties, we may note the following which are possessed by none save the free, the three names (praenomen, nomen and cognomen) and membership of a tribe, all of which are possessed by the man assigned for debt.

By settling what a thing is we have come near to determining its identity, for our purpose is to produce a definition that is applicable to our case. Now the most important element in a definition is provided by quality, as, for example, in the question whether love be a form of madness. To this point

I will, however, quote a passage from the pro Caecina [*](XV. 44.) in which Cicero includes brief proofs drawn from origins, causes, effects, antecedents and consequents:

Why then did they fly? Because they were afraid. What were they afraid of? Obviously of violence. Can you then deny the beginning, when you have admitted the end?

Shall not that which is called violence in war be called violence in peace as well

Some young men who were in the habit of making merry together decided to dine on the sea-shore. One of their party failed to put in an appearance, and they raised a tomb to him and inscribed his name thereon. His father on his return from overseas chanced to land at this point of the shore, read the name and hung himself. It is alleged that the youths were the cause of his death.

The definition produced by the accuser will run as follows:

The man whose act leads to another's death is the cause of his death.

He who wittingly commits an act which must necessarily lead

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to another's death, is the cause of his death.

You were the cause of his death, for it was your act that led to his death: but for your act he would still be alive.

To which the accused might answer,

It does not necessarily follow that the man whose act leads to another's death should be condemned forthwith. Were this so, the accuser, witnesses and judges in a capital case would all be liable to condemnation. Nor is the cause of death always a guilty cause. Take for instance the case of a man who persuades another to go on a journey or sends for his friend from overseas, with the result that the latter perishes in a shipwreck, or again the case of a man who invites another to dine, with the result that the guest dies of indigestion. Nor is the act of the young men to be regarded as the sole cause of death. The credulity of the old man and his inability to bear the shock of grief were contributory causes. Finally, had lie been wiser or made of sterner stuff, he would still be alive. Moreover the young men acted without the least thought of doing harm, and the father might have suspected from the position of the tomb and the traces of haste in its construction that it was not a genuine tomb. What ground then is there for condemning them, for everything else that constitutes homicide is lacking save only the contributory act?

Sometimes we have a settled definition on which both parties are agreed, as in the following example from Cicero: [*](Part. Or. xxx. 105. maiestatem iminuere = to commit lèse-majesté or treason. )

Majesty resides in the dignity of the Roman power and the Roman people.