Institutio Oratoria

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.

IV. In speaking of quality we sometimes use the word in its most general sense, which covers a number of different questions. For we enquire sometimes into the nature and form of things: as for instance whether the soul is immortal or whether god is to be conceived of in human form. Sometimes, on the other hand, the question turns on size and number, as, for instance, what is the size of the sun or whether there are more worlds than one. In all these cases we arrive at our conclusions by conjecture, yet each involves a question of quality.

Such questions are sometimes treated in deliberative themes: for example, if Caesar is deliberating whether to attack Britain, he must enquire into the nature of the Ocean, consider whether Britain is an island (a fact not then ascertained), and estimate its size and the number of troops which lie will require for the invasion. Under the same head of quality fall questions whether certain things should be done or not and certain objects sought or avoided: such topics are specially adapted for deliberative themes, but occur with some frequency in controversial themes as well, the only difference being that in the latter we deal with what is past and in the former with the future.

Similarly all the topics of demonstrative [*]( See III. iv. 12 sqq. ) oratory involve a qualitative basis.

By far the strongest line that can be taken in defence is to assert that the act which forms the subject of the charge is actually honourable. A man is disinherited because he went on military service, stood for office or married without his father's consent. We defend this act. This form of defence is called κατ᾽ ἀντίληψιν by the followers of Hermagoras, that is, defence by objection, the term being used with reference to the purport of the defendant's plea. [*](ἀντίληψις is the technical term for this form of defence which turns not on the facts, but on the justice of the case. The meaning of ad intellectum id nomen referentes is obscure. If the words are correct (and no satisfactory correction seems possible), their meaning must be that the defence turns not on the act, but on its significance and equity. If any change is made in the text, the simplest course is to delete the words as a gloss which has crept into the text. ) I can find no exact Latin translation of the term; we call it an absolute defence. But in such cases the question is concerned with the justice or injustice of the act alone.

Justice is either natural or conventional. Natural justice is found in actions of inherent worth.

Under this head come the virtues of piety, loyalty, self-control and the like. To these some add the rendering of like for like. But this view must not be adopted without consideration: for to retaliate, or meet violence with violence on the one hand, does not imply injustice on the part of the aggressor, while on the other hand it does not follow that the first act was just merely because the two acts were alike. In cases where there is justice on both sides, the

There is another form of defence by which we defend an act in itself indefensible by arguments drawn from without. [*](i. e. from motives derived from facts lying outside the actual case. ) This the Greeks call κατ᾽ ἀντίθεσιν by opposition. Here again there is no Latin equivalent, since we call it defence by assumption.

The strongest line to take in this form of defence is to defend the act forming the subject of the charge by appealing to its motive. An example of this is provided by the defence put forward on behalf of Orestes, Horatius or Milo. The term ἀντέγκλημα, or counter-accusation, is employed when our defence consists entirely in accusing the person whom our opponents are seeking to vindicate.

He was killed, but he was a robber; he was blinded, but he was a ravisher.

There is another form of defence based on an appeal to the motives of the act which is the opposite of that which I have just described It consists not in defending the act per se, as we do when we employ the absolute defence, nor in opposing another act to it, but in appealing to the interests of the State, of a number of persons, of our opponent himself or finally at times of ourselves, provided always that the act in question is such as we might lawfully do in our own interests. If, however, the accuser is a stranger and insists on the letter of the law, this form of defence will invariably be useless, though it may

For example, in a suit concerned with the question of disinheritance a father may, without reflecting on himself, say to his sons that his act was of importance to his own interests, and the same plea may be urged by a husband accused of cruelty by his wile or a son who alleges that his father is insane. But in such cases the position of the man who seeks to avoid loss is stronger than that of him who aims at positive advantage.

Precisely similar methods are also employed in questions that occur in real life. For the scholastic themes concerned with the disowning of children are on exactly the same footing as the cases of sons disinherited by their parents which are tried in the public courts, or of those claims for the recovery of property which are tried in the centum viral court: themes dealing with cruelty find an actual parallel in those cases in which the wife claims the restoration of her dowry, and the question is whose fault it was that led to the divorce: and again the theme where the son accuses his father of madness has its analogy in cases where a suit is brought for the appointment of a guardian.

Under the same heading as the appeal to public or personal interest comes the plea that the act in question prevented the occurrence of something worse. For in a comparison of evils the lesser evil must be regarded as a positive good: for example, Mancinus may defend the treaty made with the Numantines on the ground that it saved the army from annihilation. This form of defence is called ἀντίστασις by the Greeks, while we style it defence by comparison.