PR I3 2..0 This book belongs to THE LIBRARY VICTORIA UNIVERSITY Toronto 5, Canada THE LOEB CLASSICAL LIBRARY FOUNDED BY JAMES LOEB, LL.D. EDITED BY fT. E. PAGE, C.H., LITT.D. fE. CAPPS, ph.d., ll.d. tW. H. D. ROUSE, litt.d. L. A. POST, l.h.d. E. H. WARMINGTON, m.a., F.RjnsT.soc. QUINTILIAN III THE INSTITUTIO ORATORIA OF QUINTILIAN WITH AN ENGLISH TRANSLATION BY H. E. BUTLER, M.A., PROFESSOR Or LATIN IN LONDON UNIVKRSITT IN FOUR VOLUMES III CAMBRIDGE, MASSACHUSETTS HARVARD UNIVERSITY PRESS LONDON WILLIAM HEINEMANN LTD MCMUX First printed 1921 Reprinted 1943, 1953, 1959 ocs 1 Printed in Great Britain TABLE OF CONTENTS Tkr.-g. ROOK VII 3 Preface. — Ch. 1: Arrangement. — Ch. 2: Con- jecture.— Ch. 3: Definition. — Ch. 4: Quality. — Ch. 5 : Points of law.— Ch. 6 : The letter of the law and intention. — Ch. 7: Contradictory laws.— Ch. 8 : Syllogism.— Ch. 9: Ambiguity. —Ch. 10: Relation of various status or bases. Each case must be considered on its merits. Rules not possible for every case. book viii 177 Preface —Ch. 1: Style.— Ch. 2: Propriety of words. — Ch. 3 : Stylistic ornament ; merits and faults. — Ch. 4 : Amplification and diminution. — Ch. 5 : General reflexions and their value in oratory. — Ch. 6 : Tropes. BOOK IX 340 Ch. 1 : Figures of thought and of speech. — Ch. 2: Figures of thought considered in detail. — Ch. 3 : Figures of speech considered in detail. — Ch 4 : Artistic structure and rhythm ; metrical feet and their appropriate employment. INTRODUCTORY NOTE A considerable portion of the three books con- tained in this volume is of a highly technical character and of interest only to professed students of the technique of the ancient schools of rhetoric and the minuter points of Latin prose style. Even these portions contain not a little that is of general interest, but those which are likely to be most attractive to the general reader are VII. i and vi, the whole of VIII., and IX. i, 1-21, and iv, 1-57. Wherever discussion of bases occurs, the reader is referred back to III. vi, as the subject is too com- plicated to be dealt with in notes. Similarly for the Syllogism, Enthymeme or Epichaereme reference will be necessary to the passages indicated in the footnotes. H. E. B. vii SIGLA A = Codex Ambrosianus, 11th century. B = Agreement of Codices Bernensis, Bambergensis and Nostradamensis, 10th century. G = Codex Bambergensis where gaps in B have been supplied by an 11th-century hand. QUINTILIAN BOOK VII vol ru. M. FABII QUINTILIANI INSTITUTIONS ORATORIAE LIBER VII Prooemium De inventione, ut arbitror, satis dictum est. Neque enim ea demura, quae ad docendum perti- nent, exsecuti sumus, verum etiam motus animorum tractavimus. Sed ut opera exstruentibus satis non est saxa atque materiam et cetera aedificanti utilia congerere, nisi disponendis eis collocandisque arti- ficium manus adhibeatur, sic in dicendo quamlibet abundans rerum copia cumulum tantum habeat atque congestum, nisi illas eadem dispositio in ordinem digestas atque inter se commissas de- 2 vinxerit. Nee immerito secunda quinque partium posita est, cum sine ea prior nihil valeat. Neque enim quanquam fusis omnibus membris statua sit, nisi collocetur, et si quam in corporibus nostris aliorumve animalium partem permutes et transferase 1 cp. vi. iv. 1. Invention, arrangement, style, memory, delivery. THE INSTITUTIO ORATORIA OF QUINTILIAN BOOK VII Preface I think that enough has been said on the subject of invention. For I have dealt not merely with the methods by which we may instruct the judge, but also with the means of appealing to his emotions. But just as it is not sufficient for those who are erecting a building merely to collect stone and timber and other building materials, but skilled masons are required to arrange and place them, so in speaking, however abundant the matter may be, it will merely form a confused heap unless arrangement be em- ployed to reduce it to order and to give it connexion and firmness of structure. Nor is it without good reason that arrangement is treated as the second of the five departments of oratory,1 since without it the first is useless. For the fact that all the limbs of a statue have been cast does not make it a statue : they must be put together ; and if you were to inter- change some one portion of our bodies or of those of other animals with another, although the body would be in possession of all the same members QUINTILIAN licet habeat eadem omnia, prodigium sit tamen. Et artus etiam leviter loco moti perdunt quo viguerunt usum, et turbati exercitus sibi ipsi sunt 3 impedimento. Nee mihi videntur errare qui ipsam rerum naturam stare ordine putant, quo confuso peritura sint omnia. Sic oratio carens hac virtute tumultuetur necesse est et sine rectore fluitet nee cohaereat sibi, multa repetat, multa transeat, velut nocte in ignotis locis errans, nee initio nee fine proposito casum potius quam consilium sequatur. 4 Quapropter totus hie liber serviatdispositioni^quae quidem, si certa aliqua via tradi in oranes materias ullo modo posset, non tarn paucis contigisset. Sed cum infinitae litium formae fuerint futuraeque sint et tot saeculis nulla reperta sit causa, quae esset tota alteri similis, sapiat oportet actor et vigilet et inveniat et iudicet et consilium a se ipso petat. Neque infitias eo quaedam esse quae demonstrari possint, eaque non omittam. I. Sit igitur, ut supra significavi, divisio rerum plurium in singulas, partitio singularum in partes discretio, ordo recta quaedam collocatio prioribus 1 dispositioni, early editors : diviaioni, MSS. 1 v. x. 63. BOOK VII. Pr. 2-1. i as before, you would none the less have produced a monster. Again even a slight dislocation will deprive a limb of its previous use and vigour, and disorder in the ranks will impede the move- ments of an army. Nor can I regard as an error the assertion that order is essential to the existence of nature itself, for without order everything would go to wrack and ruin. Similarly if oratory lack this virtue, it cannot fail to be confused, but will be like a ship drifting without a helmsman, will lack cohesion, will fall into countless repetitions and omissions, and, like a traveller who has lost his way in unfamiliar country, will be guided solely by chance without fixed purpose or the least idea either of starting-point or goal. The whole of this book, therefore, will be devoted to arrangement, an art the acquisition of which would never have been such a rarity, had it been possible to lay down general rules which would suit all subjects. But since cases in the courts have always presented an infinite variety, and will continue to do so, and since through all the centuries there has never been found one single case which was exactly like any other, the pleader must rely upon his sagacity, keep his eyes open, exercise his powers of invention and judgment and look to himself for advice. On the other hand, I do not deny that there are some points which are capable of demonstration and which accordingly I shall be careful not to pass by. I. Division, as I have already stated,1 means the division of a group of things into its component parts, partition is the separation of an individual whole into its elements, order the correct disposition QUINTILIAN sequentia adnectens, dispositio utilis rerum ac 2 partium in locos distributio. Sed meminerimus ipsam dispositionem plerumque utilitate mutari nee eandem semper primam quaestionem ex utraque parte tractandam. Cuius rei, ut cetera exempla praeteream, Demosthenes quoque atque Aeschines possunt esse documento in iudicio Ctesiphontis diversum secuti ordinem, cum accusator a iure, quo videbatur potentior, coeperit, patronus omnia paene ante ius posuerit, quibus iudicem quaestioni legum 3 praepararet. Aliud enim alii docere prius expedit, alioqui semper petitoris arbitrio diceretur ; denique in accusatione mutua, cum se uterque defendat, priusquam adversarium arguat, omnium rerum ne- cesse est ordinem esse diversum. Igitur, quid ipse sim secutus, quod partim praeceptis partim usur- patum ratione cognoveraim promam nee unquam dissimulavi. 4 Erat mihi curae in controversiis forensibus nosse omnia, quae in causa versarentur. Nam in schola certa sunt et pauca et ante declamationem expo- nuntur, quae themata Graeci vocant, Cicero pro- 1 cp. in. x. 4. 2 cp vi. iv. 8; IV. ii. 28. 8 Top., 21. BOOK VII. j. 1-4 of tilings in such a way that what follows coheres with what precedes, while arrangement is the distri- bution of things and parts to the places which it is expedient that they should occupy. But we must 2 remember that arrangement is generally dependent on expediency, and that the same question will not always be discussed first by both parties. An example of what I mean, to quote no others, is provided by Demosthenes and Aeschines, who adopt a different order in the trial of Ctesiphon, since the accuser begins by dealing with the legal question involved, in which he thought he had the advantage, whereas the advocate for the defence treats practi- cally every other topic before coming to the question of law, with a view to preparing the judges for a consideration of the legal aspect of the case. For 3 it will often be expedient for the parties to place different points first ; otherwise the pleading would always be determined by the good pleasure of the prosecution. Finally, in a case of mutual accusation,1 where both parties have to defend themselves before accusing their antagonist, the order of everything must necessarily be different. I shall therefore set forth the method adopted by myself, about which I have never made any mystery : it is the result in part of instruction received from others, in part of my own reasoning. When engaged in forensic disputes I made it a 4 point to make myself familiar with every circum- stance connected with the case.2 (In the schools, of course, the facts of the case are definite and limited in number and are moreover set out before we begin to declaim : the Greeks call them themes, which Cicero3 translates by propositions.) When I QUINTILIAN posita. Cum haec in conspectu quodammodo collo- caveram, non minus pro adversa parte quam pro 5 mea cogitabam. Et primum (quod non difficile dictu est sed tamen ante omnia intuendum) con- stituebam, quid utraque pars vellet efficere, turn per quid, hoc modo. Cogitabam, quid primum petitor diceret. Id aut confessum erat aut contro- 6 versum. Si confessum, non poterat ibi esse quaestio. Transibam ergo ad responsum partis alterius, idem intuebar ; nonnunquam etiam quod inde obtinebatur confessum erat. Ubi primum coeperat non con- venire, quaestio oriebatur. Id tale est : Occidisli 7 kominem ; Occidi. Convenit ; transeo. Rationem reddere debet reus, quare occiderit. Adulterum, inquit, cum adultera occidere licet. Legem esse certum est. Tertium iam aliquid videndum est, in quo pugna consistat. Non fuerunt adulteri ; Fuerunt : 8 quaestio ; de facto ambigitur, coniectura est. In- terim et hoc tertium confessum est adulteros fuisse Sed tibi, inquit accusator, illos non licuit occidere ; exul enim eras, aut ignominiosus. De iure quaeritur. At si protinus dicenti Occidisti respondeatur Non occidi, statim pugna est. 1 I.e. a question as to facts, cv. vn. ii. BOOK VII. i. 4-8 had formed a general idea of these circumstances, I proceeded to consider them quite as much from my opponent's point of view as from my own. The 5 first point which I set myself to determine (it is easy enough to state, but is still all-important) was what each party desired to establish and then what means he was likely to adopt to that end. My method was as follows. I considered what the prosecutor would say first : his point must either be admitted or controversial : if admitted, no question could arise in this connexion. I therefore passed to 6 the answer of the defence and considered it from the same standpoint : even there the point was some- times one that was admitted. It was not until the parties ceased to agree that any question arose. Take for example the following case. " You killed a man." "Yes, I killed him." Agreed, I pass to the defence, which has to produce the motive for 7 the homicide. " It is lawful," he urges, "to kill an adulterer with his paramour." Another admitted point, for there is no doubt about the law. We must look for a third point where the two parties are at variance. "They were not adulterers," say the prosecution; "They were," say the defence. Here then is the question at issue : there is a doubt as to the facts, and it is therefore a question of conjecture.1 Sometimes even the third point may be admitted ; 8 it is granted that they were adulterers. " But," says the accuser, "you had no right to kill them, for you were an exile " or "had forfeited your civil rights." The question is now one of law. On the other hand, if when the prosecution says, " You killed them," the defence at once replies, " I did not," the issue is raised without more delay. QUINTILIAN Si explorandum est, ubi controversia incipiat, et considerari debet, quid primam quaestionem faciat.1 9 Intentio simplex, Occidit Saturninum Rabirius ; con- iuncta, Lege de sicariis commisit L. Varenus. Nayn C. Varenum occidendum et Cn. Varenum vulnerandum et Solarium item occidendum curavit.2 Nam sic di- versae propositiones erunt ; quod idem de petitio- nibus dictum sit. Verum in coniuncta propositione plures esse quaestiones ac status possunt, si aliud negat reus, aliud defendit, aliud a iure actionis excludit. In quo genere agenti est dispiciendum, quid quoque loco diluat. 10 Quod pertinet ad actorem, non plane dissentio a Celso, qui sine dubio Ciceronem secutus instat tamen huic parti vebementius, ut putet primo firnium aliquid esse ponendum, summo firmissimum, imbecilliora medio, quia et initio movendus sit iudex 11 et summo impellendus. At pro reo plerumque gravissimum quidque primum movendum est, ne illud spectans iudex reliquorum defensioni sit aver- sior. Interim tamen et hoc mutabitur, si leviora ilia palam falsa erunt, gravissimi defensio difficilior, 1 quid . . . faciat, Happel: quae . . . facit, AG. 2 curavit, Gesner : ca . . . A. : cadit, G. : cavit, SndhandA. 1 cp. v. xi. 6. 2 cp. v. xiii. 38. * cp. in. vi. 1 sq. * cp. in. vi. 23 and 52. io BOOK VII. i. 8-1 1 If it requires some search to discover where the dispute really begins, we must consider what consti- tutes the first question. The charge may be simple, 9 as for example " Rabirius killed Saturninus," l or complex like the following : " The offence committed by Lucius Varenus falls under the law of assassination . for he procured the murder of Gaius Varenus, the wounding of Gnaeus Varenus and also the murder of Salarius." 2 In the latter case there will be a number of propositions, a statement which also applies to civil suits as well. But in a complex case there may be a number of questions and bases : 3 for instance the accused may deny one fact, justify another and plead technical grounds to show4 that a third fact is not actionable. In such cases the pleader will have to consider what requires refutation and where that refutation should be placed. As regards the prosecutor, I do not altogether 10 disagree with Celsus, who, though no doubt in so doing he is following the practice of Cicero, insists with some vehemence on the view that the first place should be given to some strong argument, but that the strongest should be reserved to the end, while the weaker arguments should be placed in the middle, since the judge has to be moved at the be- ginning and forcibly impelled to a decision at the end. But with the defence it is different : the strongest 1 1 arguments as a rule require to be disposed of first, for fear that the judge through having his thoughts fixed on those arguments should regard the defence of other points with disfavour. Sometimes, however, this order is subject to alteration ; for example if the minor arguments are obviously false and the refu- tation of the most serious argument a matter of some QUINTILIAN ut detracta prius accusatoribus fide aggrediamur ultimum, iam iudicibus omnia vana esse credentibus. Opus erit tamen praefatione, qua et ratio reddatur dilati criminis et promittatur defensio, ne id quod 12 non statim diluemus timere videamur. Anteactae vitae crimina plerumque prima purganda sunt, ut id, de quo laturus est sententiam iudex, audire propitius incipiat. Sed hoc quoque pro Vareno Cicero in ultimum distulit, non quid frequentissime sed quid turn expediret intuitus. 13 Cum simplex intentio erit, videndum est, unum aliquid respondeamus an plura. Si unum, in re quaestionem instituamus an in scripto ; si in re,1 negandum sit quod obiicitur an tuendum ; si in scripto, in qua specie iuris pugna sit, et in ea, 14 de verbis an de voluntate quaeratur. Id ita con- sequemur, si intuiti fuerimus, quae sit lex quae litem faciat, hoc est, qua iudicium sit constitutum. Nam quaedam in scholasticis ponuntur ad coniun- gendam modo actae rei seriem, ut puta : Exposition qui agnoverit, solutis alimentis recipiat. Minus dido 1 in re, Regius : iure, MSS. 12 BOOK VII. i. 11-14 difficulty, we should attack it last of all, after discre- diting the prosecution by demonstrating the falsity of the former, thereby disposing the judges to be- lieve that all their arguments are equally unreliable. We shall, however, require to preface our remarks by explaining why we postpone dealing with the most serious charge, and by promising that we will deal with it at a later stage : otherwise the fact that we do not dispose of it at once may give the impression that we are afraid of it. Charges brought against the 12 past life of the accused should generally be dealt with first in order that the judge may be well-dis- posed to listen to our defence on that point on which he has to give his verdict. But Cicero in the pro J'areno postpones his treatment of such charges to the conclusion, being guided not by the general rule, but by the special circumstances of the case. When the accusation is simple, we must consider 13 whether to give a single answer to the charge or several. In the former case, we must decide whether the question is one of fact or of law : if it is one of fact, we must deny the fact or justify it : if, on the other hand, it is a question of law, we must decide on what special point the dispute arises and whether the question turns on the letter or the intention of the law. We shall do this by considering what the 14 law is which gives rise to the dispute, that is to say under what law the court has been constituted. In scholastic themes, for example, the laws are some- times stated merely with a view to connecting the arguments of the cases. Take the following case : " A father who recognises a son whom he has ex- posed in infancy, shall only take him back after paying for his keep. A disobedient son may be disinherited. *3 QUINTILIAN audientcm ft Hum liceat abdicate. Qui expositum recepit, imperat ei nuptias locupletis propinquae ; tile dcducere 15 vult Jiliam pauperis educatoris. Lex de expositis ad adfectum pertinet ; Judicium pendet ex lege abdi- cationis. Nee tamen semper ex una lege quaestio est, ut in antinomia. His spectatis apparebit circa quod pugna sit. 16 Coniuncta defensio est, qualis pro Rabirio : Si occidisset, recte Jecisset ; sed non occidit. Ubi vero multa contra unam propositionem dicimus, cogi- tandum est primum quidquid dici potest, turn ex his quo quidque loco dici expediat aestimandum. In quo non idem sentio, quod de propositionibus paulo ante, quodque de argumentis probationum loco concessi, posse aliquando nos incipere a firmioribus. 17 Nam vis quaestionum semper crescere debet et ad potentissima ab infirmissimis pervenire, sive sunt 18 eiusdem generis sive diversi. Iuris autem quaesti- ones solent esse nonnunquam ex aliis atque aliis conrlictionibus, facti semper idem spectant ; in 1 The first law is strictly irrelevant to the case, but can be employed by the son to stir the jury's emotions. He owes a deep debt of gratitude to his poor foster-father, and his love for his foster-sister is based on life-long acquaintance. The father, on the other hand, will urge that his payment for his son's nurture has discharged the debt due to the poor man and that his son is once more under the patria potestas. The introduction of the first law thus enables the pleader to introduce fresh arguments and is thus said to link up the arguments. 2 cp. in. vi. 46. and vii. 8 § 10. * v. xii. 14. 6 This statement amounts to no more than that there may be infinite complication where questions of law are con- H BOOK VII. i. 14-18 A man who took back a son whom he had exposed orders him to marry a wealthy neighbour. The son desires to marrv the daughter of the poor man who brought him up." The law about children who have 15 been exposed affords scope for emotional treatment, while the decision of the court turns on the law of disinheritance.1 On the other hand, a question may turn on more laws than one, as in cases of avrivofua or contradictory laws.2 It is by consideration of such points as these that we shall be able to determine the point of law out of which the dispute arises. As an example of complex defence I may quote 16 the pro Rabirio : " If he had killed him, he would have been justified in so doing : but he did not kill him." But when we advance a number of points in answer to a single proposition, we must first of all consider everything that can be said on the subject, and then decide which out of these points it is ex- pedient to select and where to put them forward. My views on this subject are not identical with those which I admitted a little while ago3 on the subject of propositions and on that of arguments in the section which I devoted to proofs,'1 to the effect that we may sometimes begin with the strongest. 17 For when we are defending, there should always be an increase of force in the treatment of questions and we should proceed from the weaker to the stronger, whether the points we raise are of the same or of a different character. Questions of law will often arise 18 from one ground of dispute after another, whereas questions of factare always concerned with one point ;5 cerned, but questions of fact are simple and there is but one point to be considered, " was such and such an act committed ? " QUINTILIAN utroque genere similis ordo est. Sed prius de dis- similibus, ex quibus infirmissimum quidque primum tractari oportet, ideo quod quasdam quaestiones exsecuti donare solemus et concedere ; neque enim transire ad alias possumus nisi omissis prioribus. 19 Quod ipsum ita fieri oportet, non ut damnasse eas videamur, sed omisisse, quia possimus etiam sine eis vincere. Procurator alicuius pecuniam petit ex fenore hereditario : potest incidere quaestio, an 20 huic esse procuratori liceat. Finge nos, postquam tractavimus earn, remittere vel etiam convinci : quaeretur, an ei, cuius nomine litigatur, procura- torem habendi sit ius. Discedamus hinc quoque : recipit materia quaestionem, an ille, cuius nomine agitur, heres sit feneratoris an ex asse heres. 21 Haec quoque concessa sint : quaeretur an debeatur. Contra nemo tam demens fuerit, ut cum id quod firmissimum duxerit se habere protulerit,1 remittat illud et ad leviora transcendat. Huic in schola simile est : Non abdicabis adoptatum ; ut hunc quoque, non virion fortem ; ut el for tern, non qui cuicunque2 volunlati tunc non paruerit ; ut in alia omnia subiectus sit, non 1 protulerit, Halm : omitted by MSS. * qui euicunque, W. Meyer: quicunque, MSS. 16 1 See iv. iv. 6. * cp. in. 6, 8. BOOK VII. i. 18-21 but the order to be followed is the same in both eases. We must, however, deal first with points that differ in character. In such cases the weakest should always be handled first, for the reason that there are occasions when after discussing a question we make a concession or present of it to our op- ponents : for we cannot pass on to others without dropping those which come first. This should be 19 done in such a way as to give the impression not that we regard the points as desperate, but that we have deliberately dropped them because we can prove our case without them. Suppose that the agent for a certain person claims the interest on a loan as due under an inheritance. The question may here arise whether such a claim can be made by an agent.1 Assume that, after discussing the question, 20 we drop it or that the argument is refuted. We then raise the question whether the person in whose name the action is brought has the right to employ an agent. Let us yield this point also.2 The case will still admit of our raising the question whether the person in whose name the suit is brought is heir to the person to whom the interest was due and again whether he is sole heir. Grant these 21 points also and we can still raise the question whether the sum is due at all ? On the other hand, no one will be so insane as to drop what he considers his strongest point and pass to others of minor import- ance. The following case from a scholastic theme is of a similar character. " You may not disinherit your adopted son. And if you may disinherit him qua adopted son, you may not disinherit one who is so brave. And if you may disinherit one who is so brave, you may not disinherit him because he has *7 QUINTILIAN propter optionem ; ut propter optionem, non propter talem optionem.1 Haec iuris quaestionum differentia 22 est. In factis autem ad idem tendentia sunt plura, ex quibus aliqua citra summam quaestionem remitti solent ; ut si is, cum quo furti agitur, dicat : Proba te habuisse, proba perdidisse, proba furto perdidisse, proba mea fraude. Priora enim remitti possunt, ultimum non potest. 23 Solebam et hoc facere,2 ut vel ab ultima specie (nam ea fere est, quae continet causam) retrorsum quaererem usque ad primam generalem quaestionem, vel a genere ad extremam speciem descenderem, 24 etiam in suasoriis. Ut deliberat Numa, an regnum offerentibus Romanis recipiat. Primum, id est genus, an regnandum, turn 3 an in civitate aliena, an Romae, an laturi sint Romani talem regem. Similiter in controversiis. Optet enim vir fortis alienam uxorem. Ultima species est, an optare possit alienam uxorem. Generale est, an quidquid optarit, accipere debeat. Inde, an ex privato, an nuptias, an maritum ha- 1 optionem . . . optionem, Obrccht : opinionem . . . opinionem, MSS. : ut propter optionem omitted by MSS. 2 facere is followed by praecipere, which is expunged by Meister as a gloss. 3 turn added by Christ. 1 The adopted son has done some heroic deed, bringing him under the scholastic law vir fortis optet quod uolet, " Let a hero choose what reward he will" (cp. v. x. 97). A scandalous choice might give ground for disinheriting him (cp. § 24 below), but the choice in question is not scandalous. 2 cp. v. x. 5, 6. The statement "man is an animal" is insufficient as a definition, "animal " being the genus. "Man is mortal " introduce a species, but one common to other animals. " Man is rational" introduces the ultima species. 18 BOOK VII. i. 21-24 not obeyed your every command ; and if he was bound to obey you in all else, you may not disinherit him on the ground of his choice of a reward ; and even if the choice of a reward may give just ground for disinheriting, that is not true of such a choice as he actually made." x Such is the nature of 22 dissimilarity where points of law are concerned. Where, however, the question is one of fact, there may be several points all tending to the same result, of which some may be dropped as not essential to the main issue, as for instance if a man accused of theft should say to his accuser, " Prove that you had the property, prove that you lost it, prove that it was stolen, prove that it was stolen by me." The first three can be dropped, but not the last. I used also to employ the following method. I 23 went back from the ultimate species (which generally contains the vital point of the case) to the first general question or descended from the genus to the ultimate species,2 applying this method even to de- liberative themes. For example, Numa is deliberating 24 whether to accept the crown offered him by the Romans. First he considers the general question, "Ought I to be a king?" Then, "Ought I to be king in a foreign state ? Ought I to be king at Rome? Are the Romans likely to put up with such a king as myself? " So too in controversial themes. Suppose a brave man to choose another man's wife as his reward. The ultimate species is found in the question whether he is allowed to choose another man's wife. The general question is whether he should be given whatever he chooses. Next come questions such as whether he can choose his reward from the property of private individuals, whether he 19 QUINTILIAN 25 bentis. Sed hoc non, quemadmodum dicitur, ita et quaeritur. Primum enim occurrit fere, quod est ultimum dicendum, ut hoc, Non debes alienam vxorem optare, ideoque divisionem perdit festinatio. Non oportet igitur offerentibus se contentum esse, sed quaerere aliquid quod ultra est,1 ne viduam quidem. Adhuc plus est,2 nihil ex privato. Ultimum retror- sum, quod idem a capite primum est, nihil iniquum. 26 Itaque propositione visa, quod est facillimum, co- gitemus, si fieri potest, quid naturale sit primum responderi. Id si, tanquam res agatur et nobis ipsis respondendi necessitas sit, intueri voluerimus, 27 occurret. Si id non contigerit, seponamus id quod primum se obtulerit, et ipsi nobiscum sic loquamur : Quid si hoc non esset ? id iterum et tertium et dum nihil sit reliqui. Itaque inferiora quoque scruta- bimur, quae tractata faciliorem nobis iudicem in 28 summa quaestione facient. Non dissimile huic est et illud praeceptum, ut a communibus ad propria 1 ease . . . ultra est, Spalding : esse quaere aliquidem ultra sit, AG. 1 est, Halm : si, A : se G. 1 cp. in. ix. 6. 20 BOOK VII. i. 24-28 can choose a bride as his reward, and if so, whether he can choose one who is already married. But in 25 our search for such questions we follow an order quite different from that which we employ in actual speaking.1 For that which as a rule occurs to us first, is just that which ought to come last in our speech : as for instance the conclusion, " You have no right to choose another man's wife." Consequently undue haste will spoil our division of the subject. We must not therefore be content with the thoughts that first offer themselves, but should press our inquiry further till we reach conclusions such as that he ought not even to choose a widow : a further advance is made when we reach the conclusion that he should choose nothing that is private property, or last of all we may go back to the question next in order to the general question, and conclude that he should choose nothing inequitable. Consequently 26 after surveying our opponent's proposition, an easy task, we should consider, if possible, what it is most natural to answer first. And, if we imagine the case as being actually pleaded and ourselves as under the necessity of making a reply, that answer will pro- bably suggest itself. On the other hand, if this is 27 impossible, we should put aside whatever first occurs to us and reason with ourselves as follows : " What if this were not the case ? " We must then repeat the process a second and a third time and so on, until nothing is left for consideration. Thus we shall examine even minor points, by our treatment of which we may perhaps make the judge all the better disposed to us when we come to the main issue. The rule that we should descend from the 28 comiTwn to the particular is much the same, since 21 QUINTILIAN veniamus. Fere enim communia generalia sunt. Commune est, Tyrannum occidit ; proprium, patrem1 tyrannum occidit; mulier occidit, uxor occidit. 29 Solebam et excerpere, quid mihi cum adversario conveniret, si modo id pro me erat, nee solum pre- mere eonfessionem, sed partiendo multiplicare, ut in ilia controversial Dux, qui competitorem patrem in stiff ragiis vicerat, captus est ; eunles ad redemptionem eius legati obvium habuerunt patrem reverlentem ab 30 hoslibus. Is legatis dixit : Sero itis. Excusserunt Mi patrem et aurum in sinu eius invenerunt ; ipsi perse- verarunt ire quo intenderant ; invenerunt ducem cruci Jixum, cuius vox J'uit : Cavete proditorem. Reus est pater. Quid convenit ? Prodiiio nobis praedicla est et praedicla a duce ; quaerimus proditorem. Te isse ad hostes fateris el isse clam et 2 ab his incolumem redisse, aurum relulisse et atirum occultum habuisse. 31 Nam, quod fecit, id nonnunquam potentius fit pro- positione ; quae si animos occupavit, prope aures ipsae defensioni praecluduntur. In totum autem congregatio criminum accusantem adiuvat, separatio defendentem. Solebam id, quod fieri et in argumentis dixi, in 1 patrem, added by Halm. 2 clam et, Regius: claret, AG. 1 v. x. G6. BOOK VII. i. 28-31 what is common is usually general. For example, " He killed a tyrant " is common, while " A tyrant was killed by his son, by a woman or by his wife " are all particular. I used also to note down separately whatever was 29 admitted both by my opponent and myself, provided it suited my purpose, and not merely to press any admissions that he might make, but to multiply them by partition, as for example in the following controversial theme : — " A general, who had stood against his father as a candidate and defeated him, was captured : the envoys who went to ransom him met his father returning from the enemy. He said to the envoys, ' You are too late.' They searched 30 the father and found gold in his pockets. They pursued their journey and found the general cruci- fied. He cried to them, ' Beware of the traitor.' The father is accused." What points are admitted by both parties? "We were told that there had been treason and told it by the general." We try to find the traitor. " You admit that you went to the enemy, that you did so by stealth, that you returned unscathed, that you brought back gold and had it concealed about your person." For an act of the 31 accused may sometimes be stated in such a way as to tell heavily against him, and if our statement makes a real impression on the mind of the judge, it may serve to close his ears to all that is urged by the defence. For as a general rule it is of advantage to the accuser to mass his facts together and to the defence to separate them. I used also, with reference to the whole material of the case, to do what I have already mentioned 1 as being done with arguments, namely, after first . 23 QUINTILIAN tota facere materia, ut propositis extra quae nihil esset omnibus, deinde ceteris remotis, solum id 32 superesset quod credi volebam, ut in praevari- eationum criminibus : Ut absolvatur reus, aid innocentia ipsius Jit aid inlerveniente aliqua potestate aut vi aut corruplo iudicio aid difficultate probationis aut praevari- catione. Kocentem fuisse con/ileris, nulla potestas ob- stitit, nulla vis, corruption iudicium non quereris, nulla probandi difficultas fuit : quid superest, nisi ut prae- 33 varicatio fuerit ? Si omnia amoliri non poteram, plura amoliebar. Hominem occisum esse constat, non in solitudine, ut a latronibus suspicer ; non praedae gratia, quia inspoliatus est; non hereditatis spe, quia pauper fuit : odium igitur in causa, cum sis 34 inimicus. Quae res autem faciliorem divisioni viam praestat, eadem inventioni quoque, excutere quid- quid dici potest, et velut reiectione facta ad op- timum pervenire. Accusatur Milo, quod Clodium Occident. Aut fecit aut non. Optimum erat negare ; sed non potest : occidit ergo aut iure aut iniuria utique. lure : aut voluntate aut necessitate, 24 BOOK VII. i. 31-34 setting forth all the facts without exception, I then disposed of all of them with the one exception of the fact which I wished to be believed. For example, in charges of collusion it may be argued as follows. "The means for securing the acquittal 32 of an accused person are strictly limited. His in- nocence may be established, some superior authority may intervene, force or bribery may be emploved, his guilt may be difficult to prove, or there may be collusion between the advocates. You admit that he was guilty ; no superior authority intervened, no violence was used and you make no complaint that the jury was bribed, while there was no difficulty about proving his guilt. What conclusion is left to us save that there was collusion ? " If I could not 33 dispose of all the points against me, I disposed of the majority. " It is acknowledged that a man was killed : but he was not killed in a solitary place, such as might lead me to suspect that he was the victim of robbers ; he was not killed for the sake of plunder, for nothing was taken from him ; he was not killed in the hope of inheriting his property, for he was poor : the motive must therefore have been hatred, since you are his enemy." The task not 34 merely of division, but of invention as well, is ren- dered materially easier by this method of examining all possible arguments and arriving at the best by a process of elimination. Milo is accused of killing Clodius. Either he did or did not do the deed. The best policy would be to deny the fact, but that is impossible. It is admitted then that he killed him. The act must then have been either right or wrong. We urge that it was right. If so, the act must have either been deliberate or under com- 25 QUINTILIAN 35 nam ignorantia praetendi non potest. Voluntas anceps est, sed, quia ita homines putant, attingenda defensio, ut id pro re publica fuerit. Necessitate ? subita igitur pugna, non praeparata; alter igitur insidiatus est. Uter? Profecto Clodius. Videsne, ut ipsa rerum necessitas deducat ad defensionem ? 36 Adhuc, aut utique voluit occidere insidiatorem Clodium aut non. Tutius, si noluit. Fecerunt ergo servi Milonis neque iubente neque sciente Milone. At haec tain timida defensio detrahit auctoritatem ill i ^ qua recte dicebamus occisum. 37 Adiicietur : Quod suos quisque servos in tali re facere voluisset. Hoc eo est utilius, quod saepe nihil placet et aliquid dicendum est. Intueamur ergo omnia : ita apparebit aut id quod optimum est aut id quod minime malum. Propositione aliquando ad- versarii utendum et esse nonnunquam communem earn, suo loco dictum est. Multis milibus versuum scio apud quosdam esse quaesitum, quomodo inveniremus, utra pars deberet 1 pro Mil. x. 29. 2 v. iv. 8. 26 BOOK VII. i. 34-37 pulsion of necessity, for it is impossible to plead ignorance. The intention is doubtful, but as it is 35 generally supposed to have existed, some attempt must be made to defend it and to show that it was for the good of the state. On the other hand, if we plead necessity, we shall argue that the fight was accidental and unpremeditated. One of the two parties then must have lain in wait for the other. Which was it ? Clodius without doubt. Do you see how inevitably we are led to the right method of defence by the logical necessity of the facts ? We 36 may carry the process further : either he wished to kill Clodius, who lay in wait for him, or he did not. The safer course is to argue that he did not wish to kill him. It was then the slaves of Milo who did the deed without Milo's orders or knowledge. But this line of defence shows a lack of courage and lessens the weight of our argument that Clodius was rightly killed. We shall therefore add the 37 words, " As every man would have wished his slaves to do under similar circumstances." 1 This method is all the more useful from the fact that often we can find nothing to say that really pleases us and yet have got to say something. Let us therefore con- sider every possible point ; for thus we shall dis- cover what is the best line for us to pursue, or at any rate what is least bad. Sometimes, as I have already said in the appropriate context,2 we may make good use of the statement of our opponent, since occasionally it is equally to the purpose of both parties. I am aware that some authors have written thousands of lines to show how we may discover which party ought to speak first. But in the actual 27 QUINTILIAN prior dicere ; quod in foro vel atrocitate formularum vel modo petitionum vel novissime sorte diiudicatur. 38 In schola quaeri nihil attinet, cum in declamationibus iisdem narrare et contradictiones solvere tarn ab actore quam a possessore concessum sit. Sed in plurimis controversiis ne inveniri quidem potest : ut in ilia, Qui Ires liberos habebat, oratorem, philosophum, medicum, testamento qualtuor partes fecit et singutas singulis dedit, unam eius esse voluit, qui essct utilissimus 39 civilati. Contendunt ; quis primus dicat, incertum est, propositio tamen certa ; ab eo enim, cuius perso- nam tuebimur, incipiendum erit. Et haec quidem de dividendo in universum praecipi possunt. 40 At quomodo inveniemus etiam illas occultiores quaestiones? scilicet, quomodo sententias, verba, figu- ras, colores : ingenio, cura, exercitatione. Non tamen fere unquam nisi imprudentem fugerint, si, ut dixi, na- 41 turam sequi ducem velit. Sed plerique eloquentiae famam adfectantes contenti sunt locis speciosis modo vel nihil ad probationem conferentibus. Alii nihil ultra ea quae x in oculos incurrunt exquirendum putant. Quod quo facilius appareat, unam de schola con- 1 ultra ea quae, M. Haupt, Madvig : vitare quae, A : vitare aquae, G. 1 Or perhaps "glosses," i. e. the giving of a special aspect to the case by skilful representation of facte. ■ § 26. 28 BOOK VII. i. 37-41 practice of the courts this is decided either by some brutally rigid formula, or by the character of the suit, or finally by lot. In the schools, on the other 38 hand, such an enquiry is mere waste of time, since the prosecution and the defence are indifferently permitted to state a case and refute it in the same declamation. But in the majority of controversial themes it is not even possible to discover who should speak first, as for instance in the following : "A certain man had three sons, an orator, a philosopher and a physician. In his will he divided his property into four portions, three of which he distributed equally among his sons, while the fourth was to go to the son who rendered the greatest service to his country." The sons dispute the point. 39 It is uncertain who should speak first, but our course is clear enough. For we shall begin with the son whose role we assume. So much for the general rules by which we should be guided in making our division. But how shall we discover those questions which 40 present abnormal difficulty? Just as we discover reflexions, words, figures or the appropriate nuances of style,1 namely by native wit, by study and by practice. None the less it will be rare for anyone who is not a fool to fail to discover them, so long as he is content, as I have said,2 to accept nature for a guide. Many, however, in their passionate desire to 41 win a reputation for eloquence are content to produce showy passages which contribute nothing to the proof of their case, while others think that their enquiry need not proceed further than that which meets the eve. To make my meaning clearer, I will cite a 29 QUINTILIAN troversiam, non ita sane difficillimam aut novam, 42 proponam in exemplum. Qui reo proditionis palri non adfuerit, exheres sit. Proditionis damnatus cum advocate exulefi Reo proditionis patri disertus Jilius adfuil, rasticus non adfuit : damnatus abiit cum advocato in exilium. Rusticus cum fortiter fecisset, praemii nomine impetravit restilutionem patris et fratris. Pater reversus intestatus decessit : petit rusticus partem bonorum, orator 43 lolum vindicat sibi. Hie illi eloquentes quibusque nos eirca lites raras sollicitiores ridiculi videmur, invadent personas favorabiles. Actio pro rustico contra di- sertum, pro viro forti contra imbellem, pro restitutore contra ingratum, pro eo, qui parte contentus sit, contra eum, qui fratri nihil dare ex paternis velit. 44 Quae omnia sunt in materia et multum iuvant, victoriam tamen non trahunt. In hac quaerentur sententiae, si fieri poterit, praecipites vel obscurae (nam ea nunc virtus est), et pulchre fuerit cum materia tumultu et clamore transactum. Illi vero, quibus propositum quidem melius, sed cura in 3° BOOK VII. i. 41-44 solitary example from the controversial themes of the schools ; it is neither novel nor complicated. " The man who refuses to appear in defence 42 of his father when accused of treason shall be disinherited : the man who is condemned for treason shall be banished together with his advocate. A father accused of treason was defended by one son who was a fluent speaker, while another son, who was uneducated, refused to appear for him. The father was condemned and banished with his advocate. The uneducated son performed some heroic act and demanded as a reward the restoration of his father and brother. The father returned and died intestate. The uneducated son claims a portion of his estate, the orator claims the whole for him- self." In this case those paragons of eloquence, 43 who laugh at us because we trouble our heads about cases that rarely occur, will always assume the popular role. They will defend the uneducated against the eloquent son, the brave against the coward, the son who secured the recall of his kin against the ungrateful son, the son who is content with a portion of the inheritance against the son who would refuse his brother a share in their patrimony. All these points are actually to be 44 found in the case and are of considerable import- ance, but they are not such as to render victory a certainty. In such a case they will, as far as possible, search for daring or obscure reflexions (for to-day obscurity is accounted a virtue), and they will think they have given the theme a brilliant treatment by ranting and raving over it. Those, on the other hand, whose ideals are higher, but who restrict themselves merely to the obvious, will note 3* QUINTILIAN 45 proximo est, haec velut innatantia videbunt : ex- cusatum esse rusticum, quod non interfuerit iudicio nihil collaturus patri ; sed ne disertum quidem habere, quod imputet reo, cum is damnatus sit ; dignum esse hereditate restitutorem ; avarum, im- pium, ingratum, qui dividere nolit cum fratre eoque sic merito ; quaestionem quoque illam primam scripti et voluntatis, qua non expugnata non sit sequentibus 46 locus. At qui naturam sequetur ilia cogitabit pro- fecto, primo hoc dicturum rusticum : Pater intestatus duos nos filios reliquil, partem iure gentium peto. Quis tam imperitus, quis tam procul a litteris, quin sic 47 incipiat, etiamsi nescierit, quid sit propositio ? Hanc communem omnium legem leviter adornabit ut iustam. Nempe sequetur, ut quaeramus, quid huic tam aequae postulationi respondeatur ? At id mani- festum est. Lex est, quae iubet exheredem esse eum qui patri prodilionis reo non adfuerit ; tu autem non adfuisti. Hanc propositionem necessaria sequitur legis laudatio et eius, qui non adfuerit, vituperatio. 48 Adhuc versamur in confessis ; redeat animus ad 1 Sc. in spite of his own eloquence. 2 See iv. iv. 32 BOOK VII. i. 44-48 the following points, which are, however, purely superficial. The uneducated son may be excused 45 for not appearing at the trial on the ground that he could contribute nothing to his father's defence : but even the orator has no claim on the gratitude of the accused, since the latter was condemned : 1 the man who secured the recall of his kin deserves to receive the inheritance, while the man who refuses to divide it with his brother, more especi- ally with a brother who has deserved so well of him, is avaricious, unnatural and ungrateful : they will further note that the first and essential question is that which turns on the letter and in- tention of the law ; unless this is first disposed of, all subsequent arguments must fall to the ground. 46 He, however, who follows the guidance of nature will assuredly reflect as follows : the first argument of the uneducated son will be, " My father died intestate and left two sons, my brother and myself; I claim a share in his estate by the law of nations." Who is so ignorant or so lacking in education as not to make this his opening, even though he does not know what is meant by a proposition ? 2 47 He will then proceed to extol, though with due moderation, the justice of this common law of nations. The next point for our consideration is what reply can be made to so equitable a demand ? The answer is clear: — "There is a law which disin- herits the man who fails to appear in his father's defence when the latter is accused of treason, and you failed to appear.'' This statement will be followed by the necessary praise of the law and denunciation of the man who failed to appear. So far we have been dealing entirely with 48 33 VOL. III. C QU1NTILIAN petitorem ; numquid non hoc cogitet necesse est, nisi qui sit plane hebes ? Si lex obstat, nulla lis est, inane indicium est. Atqui et legem esse et hoc, quod ea puniat, a rustico factum extra dubitationem est. 49 Quid ergo dicimus ? Ruslicus eram. Si lex l omnes complectitur, nihil proderit. Quaeramus ergo num infirmari in aliquam partem lex possit. Quid aliud (saepius dicam) natura permittit quam ut, cum verba contra sint, de voluntate quaeratur ? Generalis igitur quaestio, verbis an voluntate sit standum. Sed hoc in commune de iure omni disputandum semper nee unquam satis iudicatum est. Quaerendum igitur in hac ipsa, qua consistimus, an aliquid inveniri possit 60 quod scripto adversetur. Ergo, quisquis non adfuerit, exheres erit ? quisquis sine exceptione ? Iain se ilia vel ultro offerent argumenta : Et infans ? filius enim est et non adfuit ; et qui aberat et qui mili- labat et qui in legatione erat ? lam multum acti 1 lex, Halm : lexeram, AG. 34 BOOK VII. i. 48-50 admitted facts. Let us now return to the claimant. Unless he is hopelessly unintelligent, surely the following argument will suggest itself: — " If the law bars the way, there is no ground for action and the trial becomes a farce. But it is beyond question that the law exists and that the uneducated son did commit the offence for which it enacts a punish- ment." What then shall we say? "I had no education." But if the law applies to all men, it 49 will be of no avail to plead lack of education. We must therefore try to discover whether there be not some point on which the law can be invalidated. We turn for guidance to nature (a point on which I cannot insist- too often) ; what does she suggest save that when the letter of the law is against us, we should discuss its intention ? This introduces the general question whether we are to stand by the letter or the spirit. But if we argue this question on general grounds with reference to law in the abstract, we shall go on for ever ; it is a question that has never been decided. We must therefore restrict our enquiry to the particular law on which our case turns and try to find some argument against adhesion to the strict letter. Well, then, is 50 everyone who fails to appear in defence of his father to be disinherited ? Are there no exceptions to the rule ? At this point the following arguments will spontaneously suggest themselves. " Is an infant liable to the law ? " For we may imagine a case where the son is an infant and has failed to appear in his father's support. Again " does the law apply to a man who was away from home or absent on military service or on an embassy?" We have gained a considerable amount of ground ; for we I 35 QUINTILIAN est : potest aliquis non adfuisse et heres esse. 51 Transeat nunc idem ille, qui hoc1 cogitavit, ut ait Cicero, tibicinis Latini modo ad disertum. Ut ista concedam, tu nee infans es nee ahfuisti nee militasti. Num aliud occurrit quam illud, Sed ruslicus sum ? 52 Contra, quod palam est dici : 2 Ut agere non potueris, adsidere potuisti ; et verum est. Quare redeundum rustico ad animum legumlatoris : lmpietatem punire 53 voluit, ego autem impius non sum. Contra quod diser- tus, Tu impie Jecisti, inquit, cum exheredationem meritisti, licet te posted vel paenitentia vel ambitus ad hoc genus optionis adduxerit. Praeterea propter te damnatus est pater, videbaris enim de causa pronuntiasse. Ad haec rusticus : Tu vero in causa damnationis fuisti, multos offenderas, inhnicitias domui contraxeras. Haec coniec- turalia ; illud quoque, quod coloris loco rusticus dicit, patris fuisse tale consilium, ne universam domum periculo subiiceret. Haec prima quaestione 54 scripti et voluntatis continentur. Intendamus ultra animum videamusque, an aliquid inveniri praeterea possit. Quo id modo net ? Sedulo imitor quae- 1 hoc, added by Christ. 2 dici, Christ : dicit, MSS. 1 Pro Mur. xii. 26. The flule-pla3rer went from one actor to another, according as each required accompaniment. 36 BOOK VII. i. 50-54 have established the fact that a man may fail to appear for his father and still inherit. Our declaimer, 51 who has thought out this line of argument, must now- pass over like a Latin flute-player, as Cicero says,1 to the side of the eloquent son and reply, " Granted, but you are not an infant, you were not away from home nor absent on military service." Is there any answer to this except the previous reply, " I am an uneducated man " ? But to this there is the obvious 52 retort, " Even if you could not actually plead, you might have supported him by your presence," which is no more than the simple truth. The un- educated son must therefore return to the intention of the legislator. " He wished to punish unfilial conduct, but I am not unfilial." To this the 53 eloquent son will reply, "The action whereby you deserved disinheritance was unfilial, although peni- tence or desire for display may have subsequently led you to choose this as your reward. Further, it was owing to you that our father was condemned, since by absenting yourself you appeared to imply that you thought him guilty." The uneducated son replies, " Nay, you contributed to his condemna- tion, for you had given offence to many and made our family unpopular." These arguments are based on conjecture, as also will be the excuse put forward by the uneducated son to the effect that his father advised his absence, as he did not wish to emperil his whole family. All these arguments are involved in the preliminary question as to the letter and the intention of the law. Let us pursue the matter 54 further and see if we can discover any additional arguments. How is that to be done? I am deliber- ately imitating the actual train of thought of one 37 QUINTILIAN rentem, ut quaerere doceam, et omisso speciosiore stili genere ad utilitatem me summitto discentium. Omnes adhuc quaestiones ex persona petitoris ipsius duximus ; cur non aliquid circa patrem quae- rimus ? dictum non est, Quiquis x non adfuerit, exhcrcs 55 erit. Cur non conamur et sic quaerere, Num, cuicanquc quis non adfuerit ? Facimus hoc saepe in iis con- troversiis, in quibus petuntur in vincula qui parentes suos non alunt, ut earn quae testimonium in filium peregrinitatis reum dixit, eum, qui filium lenoni vendidit. In hoc, de quo loquimur, patre quid 56 apprehendi potest ? Damnatus est. Numquid igitur lex ad absolutos tantum patres pertinet? Dura prima fronte quaestio. Non desperemus ; credibile est hoc voluisse legumlatorem, ne auxilia liberorum innocentibus deessent. Sed hoc dicere rustico vere- cundum est, quia innocentem fuisse patrem fatetur. 57 Dat aliud argumentum coritroversiae Damnatus pro- m ditionis cum advocato exulet. Vix videtur posse fieri, ut poena filio in eodem patre, et si adfuerit et si non 1 quisquis, Spalding: cui quia, AG. 38 BOOK VII. i. 54-57 who is engaged in such an enquiry with a view to showing how such enquiry should be conducted. I shall therefore put aside the more showy kind of composition, and concern myself solely with such as may be of real profit to the student. So far we have derived all our questions from the character of the claimant. But why should we not make some enquiries into the character of the father ? Does not the law say that whoever fails to appear for his father is to be disinherited ? Why should we 55 not try asking whether this means that he is to be disinherited, whatever the character of the father for whom he failed to appear? Such a course is often adopted in those controversial themes in which we demand that sons who fail to maintain their parents should be cast into prison : take for example the case of the mother who gave evidence against her son when accused of being an alien, or of the father who sold his son to a procurer. What, then, is there in the present case that we lay hold of as regards the character of the father? He was 56 condemned. But does the law apply only to those cases where the father is acquitted ? At first sight the question is difficult. But let us not despair. It is probable that the intention of the legislator was that innocent parents should secure the support of their children. But the uneducated son will be ashamed to produce this argument, since he acknow- ledges that his father was innocent. There is, how- 57 ever, another line of argument which may be drawn from the enactment that the person condemned for treason should be banished together with his advocate. It seems almost impossible that in one and the same case a son should incur a penalty, 39 QU1NTILIAN adfuerit, constituta sit. Praeterea lex ad exules nulla pertinet. Non ergo credibile est de advocato damnati scriptum ; an possunt enim bona esse ulla 58exulis? Rusticus1 in utramque partem dubium facit ; disertus et verbis inhaerebit, in quibus nulla exceptio est, et propter hoc ipsum poenam esse constitutam eis qui non adfuerint, ne periculo exilii deterreantur advocatione, et rusticum innocenti non adfuisse dicet. Ulud protinus non indignum quod adnotetur, posse ex uno statu duas generales fieri quaestiones, an quisquis ? an cuicunque ? 59 Haec ex duabus personis quaesita sunt. Ex tertia autem, quae est adversarii, nulla oriri quaestio potest, quia nulla fit ei de sua parte controversia. Nondum tamen cura deficiat. Ista enim omnia dici possent etiam non restituto patre. Nee statim eo tendamus, quod occurrit ultro, a rustico restitutum. Qui sub- tiliter quaeret, aliquid spectabit ultra ; nam, ut genus species sequitur, ita speciem genus praecedit. 60 Fingamus ergo ab alio restitutum : ratiocinativa seu 1 rusticus, Begius : scolastica, AG. 1 in. vi. 1 sqq. The basis or main point on which the case turns is that of the intention of the law (voluntas). * i. «. the father and the uneducated sou. 40 BOOK VII. i. 57-60 both if he appeared in his father's defence and if he did not appear. Further, exiles are outlaws. Therefore the letter of the law cannot con- ceivably apply to the advocate of the condemned man. For how can an exile hold any property ? 58 The uneducated son raises a doubt as to the inter- pretation both of the letter and the spirit of the law. The eloquent son will cling to the strict letter of the law, which makes no exception, and will argue that the reason for enacting a penalty against those who fail to appear for their fathers was to prevent their being deterred from the defence of their fathers by the risk of banishment, and he will assert that his brother failed to appear in defence of his innocent father. It may therefore be worth while pointing out that two general questions may arise out of one basis — x for we may ask, " Is every- one who fails to appear liable to disinheritance ? " or " Is he bound to appear irrespective of the character of his father? " So far all our questions have been derived from 59 two of the persons involved.2 With regard to the third, this can give rise to no question, as there is no dispute about his portion of the inheritance. Still the time is not yet come to relax our efforts : for so far all the arguments might have been used even if the father had not been recalled from exile. But we must not betake ourselves at once to the obvious point that he was recalled by the agency of the uneducated son. A little ingenuity will lead us to look further afield : for as species comes after genus, so genus precedes species. Let us therefore assume that the father 60 was recalled by someone else. This will give rise 4i QUINTILIAN collectiva quaestio orietur, an restitutio pro sublatione iudicii sit et proinde valeat, ac si iudicium non fuisset. Ubi temptabit rusticus dicere ne impetrare quidem aliter potuisse suorum restitutionem uno praemio nisi patre proinde ac si accusatus non esset revocato, quae res advocati quoque poenam, 61 tanquam is non adfuisset, remiserit. Turn venimus ad id, quod primum occurrebat, a rustico esse resti- tutum patrem. Ubi rursus ratiocinamur, an restitutor aceipi debeat pro advocato, quando id praestiterit quod advocatus petiit, nee improbum sit pro simili 62 aceipi quod plus est. Reliqua iam aequitatis, utrius iustius sit desiderium. Id ipsum adhuc dividitur ; etiamsi uterque sibi totum vindicaret, nunc utique, cum alter semissem, alter universa fratre excluso. Sed his tractatis etiam habet magnum momentum apud iudices patris memoria, cum praesertim de bonis eius quaeratur. Erit ergo coniectura, qua 1 ep. in. vi. 15, 43, 46, 51 ; vn. viii. 1. 1 The reward to be chosen, it is argued, covered the recall of one person only. The only means by which both father and son could be recalled was by the restoration of the father, whot>e amnesty would ipso facto extend to the son as welL 42 BOOK VII. i. 60-62 to a question of the ratiocinative or syllogistic type,1 namely whether recall from exile cancels the sen- tence of the court and is tantamount to the trial never having taken place at all. The uneducated son will therefore attempt to argue that, being entitled to not more than one reward, there was no means by which he could have secured the recall of his kin save by the restoration of his father on the same terms as if he had never been accused, and that this fact carries with it the cancellation of the penalty incurred by his advocate, as though he had never defended his father at all.2 Our next point 6) will be that which first occurred to us, namely the plea that he was recalled by the agency of the uneducated son. At this point we are confronted by the question whether the son who secured his father's restoration is thereby to be regarded in the light of an advocate, since he secured for him precisely what his original advocate demanded for him, and it is not an unreasonable claim to ask that an action should be regarded as equivalent when it is really more than equivalent. The remaining 62 points turn on questions of equity, for we ask which of the two sons makes the juster claim. This question admits of still further division. The claim of the uneducated son would have been the juster even if both had claimed the whole property. How much more so when one claims only a half and the other the whole to the exclusion of his brother. And then, even after we have dealt with all these points, an appeal to the memory of his father will carry great weight with the judges, more especially as the dispute is about the father's estate. This will give rise to conjecture as to what the intentions 43 QUINTILIAN mente pater intestatus decesserit. Sed ea pertinet ad qualitatem ; alterius status instrumenturu est. 63 Plerumque autem in fine causarum de aequitate tractabitur, quia nihil libentius iudices audiunt. Aliquando tamen hunc ordinem mutabit utilitas, ut, si in iure minus fiduciae erit, aequitate iudicem praeparemus. 64 Nihil habui amplius quod in universum prae- ciperem. Nunc eamus per singulas causarum iudici- alium partes, quas ut persequi ad ultimam speciem, id est ad singulas lites controversiasque, non possum, ita de 1 generalibus scribere licet, ut, quae in quemque statum frequentissime incidant, tradam. Et, quia natura prima quaestio est, factumne sit, ab hoc ordiar. II. Coniectura omnis aut de re aut de animo est. Utriusque tria tempora, praeteritum, praesens, fu- turum. De re et generales quaestiones sunt et definitae, id est, et quae non continentur personis 2 et quae continentur. De animo quaeri non potest, nisi ubi persona est et de facto constat. Ergo cum de re agitur, aut quid factum sit in dubium venit aut quid fiat aut quid sit futurum, ut in generalibus, an atomorum concursu mundus sit effectus, an provi- 1 de, Regius : in, AG. I.e. qualitative, cp. in. vi. 43. cp. vii. i. 23. 44 BOOK VII. i. 62-11. 2 of the father were at the time of his dying intestate. This conjecture, however, involves a question of quality, and is employed in the service of a different basis.1 As a rule questions of equity are 63 best introduced at the conclusion of a case, since there is nothing to which the judges give more ready hearing. Sometimes, however, the interests of the case demand a change in this order ; for example if we regard our case as weak in point of law, it will be well to secure the good-will of the judge by dealing with the question of equity first. This concludes my general rules on this subject. 64 We will now proceed to consider the several parts of forensic cases, and although I cannot follow them to the ultimate species? that is to say, I cannot deal with individual suits and controversies, I shall be able to discuss them on general lines in such a way as to show what bases most of them involve. And since the first question naturally is whether an alleged fact has taken place, I will begin with this. II. All conjecture is concerned either with facts or intention. Each of these may occur in one of three times, past, present or future. Questions concerning facts are either general or definite, that is to say, those which involve consideration of persons and those which do not. Concerning in- 2 tentions there can be no questions which do not involve some person and where the facts of the case are not admitted. Therefore when the question turns on some fact, the point on which doubt arises is either what has been done, or what is being done, or what is likely to be done. For example, in general questions we discuss whether the universe has been formed of a concourse of atoms, or is governed by 45 QU1NTILIAN dentia regatur, an sit aliquando casurus; indefinitis: an parricidium coinmiserit Roscius, an regnum ad- fectet Manlius, an recte Verrem sit accusaturus 3 Q. Caecilius. In iudiciis praeteritum tempus maxime valet ; nemo enim accusat, nisi quae facta sunt. Nam quae fiant et quae futura sint ex praeteritis colliguntur. Quaeritur et unde quid ortum? ut pestilentia ira deum an intemperie caeli an corruptis aquis an noxio terrae halitu. Et quae causa facti ? ut, quare ad Troiam quinquaginta reges navigaverint iureiurando adacti an exemplo moti an gratificantes Atridis. Quae duo genera non multum inter se 4 distant. Ea vero, quae sunt praesentis temporis, si non argumentis, quae necesse est praecessisse, sed oculis deprehendenda sunt, non egent coniectura, ut si apud Lacedaemonios quaeratur, an Athenis muri fiant. Sed et illud, quod potest videri extra haec positum, coniecturae genus, cum de aliquo homine quaeritur, qui sit ; ut est quaesitum contra Urbiniae heredes, is qui x tanquam filius petebat 5 bona, Figulus esset an Sosipater. Nam et substantia 1 is qui, Spalding : si qui, A : si quis, G. 1 cv. iv. i. 11 aud vn. ii. 26. 46 BOOK VII. ii. 2-5 providence, or is likely some day to come to an end. In definite questions, on the other hand, we dis- cuss whether Roscius has murdered his father, whether Manlius is aiming at making himself king, or Quintus Caecilius will be justified in appearing as the accuser of Verres. In the law courts past time is of most importance, since all accusations are concerned with what has actually been done, while what is being done or is likely to be done is inferred from the past. We also enquire into origins. For instance, we enquire whether a pestilence be due to the anger of heaven, the inclement weather, the pollution of the water-supply, or the noxious vapours emitted by the earth. Again, we seek for the motives of an act. For example, we enquire whether the fifty kings who sailed against Troy did so because they were bound by their oath, or were moved to do so by righteous indignation, or merely desired to gratify the sons of Atreus. There is no very great difference between these two classes of question. As regards facts falling within the present, if they can be detected by the eye without anv reference to their logical antecedents being required, there will be no need of conjecture : let us suppose, for instance, that the Lacedaemonians are enquiring whether the Athenians are erecting fortifications. But although conjecture may seem entirelv foreign to this class of question, there are cases in which it it necessary, as in questions of personal identitv, which may be illustrated by the action brought against the heirs of Urbinia,1 where the question was whether the man who claimed the property as being the son of the deceased, was Figulus or Sosi- pater. In this case the actual person was before the 47 QUINTILIAN eius sub oculos venit, ut non possit quaeri, an sit, quomodo an ultra oceanum ; nee quid sit nee quale sit, sed quis sit? Verum hoc quoque genus litis ex praeterito pendet, an hie sit ex Urbinia natus Clusinius Figulus. Fuerunt autem tales nostris etiam temporibus controversiae, atque aliquae in meum 6 quoque patrocinium inciderunt. Animi coniectura non dubie in omnia tempora cadit, qua mente Ligarius in Africa merit, qua mente Pyrrhus foedus petat, quomodo laturus sit Caesar, si Ptolemaeus Pompeium occiderit. Quaeritur per coniecturam et qualitas circa modum, speciem, numerum, an sol maior quam terra, luna globosa an plana an acuta, unus mundus an plures. 7 Itemque extra naturales quaestiones, maius bellum Troianum an Peloponnesium, qualis clipeus Achillis, an unus Hercules. In iis autem, quae accusatione ac defensione constant, unum est genus, in quo quaeritur et de facto et de auctore ; quod interim coniunctam quae- stionem habet, cum * utrumque pariter negatur, interim separatum, cum et factum sit necne, et si 8 de facto constet, a quo factum sit ambigitur. Ipsum quoque factum aliquando simplicem quaestionem 1 cum, Halm : et, JISS. 1 cp, in. viii. 16. * cp. in. viii. 5(i. 43 BOOK VII. ii. 5-8 eyes of the court, so that there could be no question whether he existed (as there is, for instance, when we ask whether there exists any land beyond the Ocean) 1 nor what he was nor of what kind. The question was simply, who he was. But this kind of dispute also depends on past time. The problem is whether this man Clusinius Figulus was born of Urbinia. Such disputes have arisen even in our own day, indeed I myself have pleaded in such. On the other hand, conjecture as to intention is obviously concerned with all three times. We ask with what purpose Ligarius went to Africa, with what purpose Pyrrhus is asking for a treaty, and how Caesar will take it if Ptolemy kills Pompey.2 We may also employ conjecture to enquire into quality in questions dealing with size, species and number, such as whether the sun is greater than the earth, whether the moon is spherical, flat or conical, whether there is one universe or several, or, to go outside these physical speculations, whether the Trojan or the Peloponnesian war was the greatest, what was the nature of the shield of Achilles, or whether there was more than one Hercules. In forensic cases, however, which consist of accusation and defence, there is one kind of con- jecture by which we enquire both about an act and about its author. This sometimes treats the two questions together, as, for example, when both the act and the identity of the author are denied, and sometimes separately, as when the first enquiry, whether the act was committed, is followed by a second, where, the act being admitted, the question is by whom it was committed. The act itself again sometimes involves a single question, as, for example, 49 QU1NTILIAN habet, an homo perierit, aliquando duplicem, veneno an cruditate perierit. Alterum est genus de facto tantum, cum, si id certum sit, non potest de auctore dubitari ; tertium de auctore tantum, cum factum constat, sed a quo sit factum in controversiam venit. 9 Et hoc, quod tertio loco posui, non est simplex. Aut enim reus fecisse tantummodo se negat aut alium fecisse dicit. Sed ne in alterum quidem trans- ferendi criminis una forma est. Interdum enim sub- stituitur mutua accusatio, quam Graeci avTiKaTrjyopiav vocant, nostrorum quidam concertativam. Interdum in aliquam personam, quae extra discrimen iudicii 10 est, transfer tur, et alias certain, alias incertam ; et, cum certam, aut in extrariam aut in ipsius qui periit l voluntatem. In quibus similis atque in uvTLKaT-qyopia personarum, causarum, ceterorum comparatio est, ut Cicero pro Vareno in familiam Ancharianam, pro Scauro circa mortem Bostaris in 11 matrem avertens crimen facit. Est etiam illud huic contrarium comparationis genus, in quo uterque a se factum esse dicit ; et illud in quo non personae inter se sed res ipsae colliduntur, id est, non uter 1 periit, Badius : perit, cod. Argentorat : petit, AG. 1 i.e. mutual or reciprocal accusation, see vn. i. 3. So BOOK VII. ir. 8-1 1 whether a man is dead, and sometimes two, as, for instance, whether he died of poison or of some internal disease. Another form of conjecture is concerned with the act alone, it being admitted that if the act was really committed, there can be no doubt as to its author. A third form is concerned solely with the author, the act being admitted and the dispute turning on the question as to who committed it. This third form is complex. For the accused either 9 confines himself to denying that he did it or accuses another of having done it. Further, there is more than one way of transferring the charge to another. At times this results in mutual accusation, which the Greeks call avriKaTrp/opia, and some of our own authors cojicertative accusation.^ At times, on the other hand, the charge is transferred to some person who cannot be brought to trial, and may be either known or unknown : again, if the person is known, he may be someone outside the case or the victim himself, who may be alleged to have committed suicide. In such cases we compare characters, 10 motives and other circumstances in the same way as in cases of mutual accusation. Cicero, for instance, in the pro Vareno diverts the charge from the accused to the slaves of Ancharius and in the pro Scauro throws the suspicion of Bostar's murder upon his mother. There is also a different form of com- 11 parison, which comes into play when both parties claim the credit of some act, and yet another kind, when the question is not as between two persons, but as between two acts ; that is to say, the question is not which of the two committed an act, but which of two acts was committed. Finally, if the act and the identity of the author are both 51 QUINTILIAN fecerit, sed utrum factum sit. Cum de facto et de auctore constat, de animo quaeri potest. Nunc de singulis. Cum pariter negatur, hoc modo : Adulterium non commisi ; Tyrannidem non adfectavi. In caedis ac veneficii causis frequens est ilia divisio : 1 2 Non est factum ; et si est factum, ego non feci. Sed, cum dicimus, Proba hominem occisum, accusatoris tantum partes sunt ; a reo nihil dici contra praeter aliquas fortasse suspiciones potest, quas spargere quam maxime varie oportebit, quia, si unum aliquid adfirmaris, probandum est aut causa periclitandum. Nam cum inter id quod ab adversario et id quod a nobis propositum est quaeritur, videtur utique alte- rura verum ; ita everso quo defendimur, reliquum 13 est quo premimur, ut cum quaerimus de ambiguis signis cruditatis et veneni, nihil tertium est ideoque utraque pars, quod proposuit, tuetur. Interim autem ex re quaeritur, veneficium fuerit an cruditas ; cum aliqua ex ipsa citra personam quoque argumenta 14 ducuntur. Refert enim, convivium praecesserit lae- titia1 an tristitia, labor an otium,2 vigilia an quies. 1 laetitia, added by Philander. 2 labor an otium, Regius : laborantium, MSS. 52 BOOK VII. ii. 11-14 admitted, we may still raise the question of his intention. I shall now proceed to detail. As an example of joint denial covering both the act and the identity of the author we may take the following statements, "I have not committed adultery," "I have not sought to establish myself as tyrant." In cases of murder or poisoning the denial is often divided as follows: "The act was not committed, and, if it 12 was committed, it was not by me." But if the defence say, " Prove that the man was killed," the burden falls solely on the accuser, for the accused can say nothing more against the charge except perhaps in the way of casting certain suspicions, which he should throw out in the vaguest terms, since if you make one definite assertion, you will have to prove it or run the risk of losing your case. For when the question lies between our statement and that of our opponent, one or other will be regarded as true. Thus when the point on which we relied for our defence is overthrown, there is nothing left but the points that tell against us. For example, when the 13 question turns on symptoms, which may point either to poisoning or internal disease, there is no third course left open and consequently each party sticks to his statement. At times the question turns on the nature of the fact, whether, for instance, death was due to poisoning or internal disease, and argu- ments are introduced which are drawn from the circumstances alone without any reference to the person concerned. For example, it makes a differ- 14 ence whether the deceased was cheerful or depressed, had been working or taking his ease, had been awake or sleeping previous to the festive gathering that 53 QUINTILIAN Aetas quoque eius, qui periit, discrimen facit ; interest, subito defecerit an longiore valetudine consumptus sit. Liberior adhuc in utramque partem disputatio, si tantum subita mors in quaestionem 15 venit. Interim ex persona probatio rei petitur, ut propterea credibile sit venerium fuisse, quia crcdibile est ab hoc factum veneficium, vel contra. Cum vero de reo et de facto quaeritur, naturalis ordo est, ut prius factum esse accusator probet, deinde a reo factum. Si tamen plures in persona probationes 16 habuerit, convertet hunc ordinem. Defensor autem semper prius negabit esse factum, quia, si in hac parte vicerit, reliqua non necesse habet dicere ; victo superest, ut tueri se possit. Illic quoque, ubi de facto tantum controversia est, quod si probetur non possit de auctore dubitari, similiter argumenta et ex persona et ex re ducuntur, 17 sed in unam facti quaestionem, sicut in ilia contro- versia : (utendum est enim et his exemplis, quae sunt discentibus magis familiaria) Abdicalus medicinae sluduit. Cum pater eius aegrotaret, desperantibus de eo ceteris medicis, adhibitus sanaturum se dixit, si is 54 BOOK VII. ii. 14-17 was followed by his death. The age of the deceased is also an important factor, and it is desirable to know whether he died suddenly or after a long period of ill health. If the question turns only on his sudden death, both parties will have still freer scope for discussion. At times the character of the 15 accused may be adduced to prove the fact, and to make it likely that it was or was not a case of poisoning because the accused is or is not a likely person to have committed such an act. When, on the other hand, the enquiry concerns both the accused and the act, the natural order for the accuser to pursue is to commence by proving that the act has been committed and then to go on to show that it was committed by the accused. If, however, proofs of the authorship of the crime are more in number than the proofs of the commission, this order may be reversed. On the other hand, the 16 accused will always begin by denying the act, since if this can be successfully proved, there is no need to say anything more, while if it is not proved, there remain other means of defence. Similarly, when the dispute turns solely on the act and, the act being proved, there can be no doubt as to the author, arguments may be drawn in like manner both from the person and the facts, although with reference to the question of fact alone. Take the 17 following controversial theme as an example, for it is best to employ scholastic themes as illustrations since they are more familiar to the student. "A man who had been disinherited by his father took to the study of medicine. His father fell sick and, his life being despaired of by the other doctors, the son was called in, and said he would cure him if 55 QU1NTILIAN potionem a se datam bibisset. Pater, accept ae polionis epota parte, dixit venerium sibi datum; filius quod reliquum erat exhausil : pater decessit, Me parricidii 18 reus est. Manifestum, quis potionem dederit, quae si veneni fuit, nulla quaestio de auctore ; tamen, an venenum fuerit, ex argumentis a persona ductis colligetur. Superest tertium, in quo factum esse constat ali- quid, a quo sit factum, quaeritur. Cuius rei super- vacuum est ponere exemplum, cum plurima sint huiusmodi iudicia, ut hominem occisum esse mani- festum sit vel sacrilegium commissum, is autem, qui arguitur fecisse, neget. Ex hoc nascitur avriKa- rrjyopia ; utique enim factum esse convenit, quod 19 duo invicem obiiciunt. In quo quidem genere cau- sarum admonet Celsus fieri id in foro non posse ; quod neminem ignorare arbitror. De uno reo consilium cogitur, et etiam1 si qui sunt, qui invicem accusent, alterum iudicium praeferre necesse est. 20 Apollodorus quoque dvTiKaTrjyopiav duas esse contro- versias dixit, et sunt revera secundum forense ius duae lites. Potest tamen hoc genus in cognitionem venire senatus aut principis. Sed in iudicio quoque 1 et etiara, Christ: etiam et, AfSS. BOOK VII. ii. 17-20 he would take a draught prescribed by himself. The father after drinking part of the draught said that he had been poisoned : the son drank the remainder of the draught. The father died and the son is accused of parricide." There is no doubt 18 who administered the draught, and, if it was poison, there is no question as to the author : but the problem as to whether the draught was poison can only be decided by arguments drawn from the character of the accused. There remains a third type of conjectural case where the fact is admitted, and the only question is as to the author. It is unnecessary for me to quote examples, since such cases are of frequent occurrence. For example, it may be clear that a man has been killed or that sacrilege has been com- mitted, but the person accused of the crime may deny his guilt. It is from such circumstances that cases of mutual accusation arise, where it is admitted that the crime has been committed, but each party charges the other with being the author. With re- 19 gard to this class of case Celsus points out that they cannot actually occur in the courts, a fact which I imagine is familiar to all : for the jury is empanelled to try one accused person only, and even though the defence and the prosecution may accuse each other of the crime, the first case must be tried before the second. Apollodorus again stated that mutual 20 accusation involved two separate disputes, and this is of course in conformity with the practice of the courts, which insists on two separate trials. On the other hand, mutual accusation is possible in cases tried before the senate or the emperor, and even in the courts the fact of mutual accusation will involve 57 QUINTILIAN nihil interest actionum, utrum simul de utroque 21 pronuntietur an sententia de uno feratur.1 Quo in genere semper prior debebit esse defensio, primum quia natura potior est salus nostra quam adversarii pernicies, deinde quod plus habebimus in accusatione auctoritatis, si prius de innocentia nostra constiterit, postremum, quod ita demuni duplex causa erit. Nam qui dicit, Ego non occidi, habet reliquam partem, ut dicat, Tu occidisti ; at qui dicit, Tu occidisti* super- vacuum habet postea dicere, Ego non occidi. 22 Hae porro actiones constant comparatione ; ipsa comparatio non una via ducitur. Aut enim totam causam nostram cum tota adversarii causa compo- nimus aut singula argumenta cum singulis. Quorum utrum sit faciendum, non potest nisi ex ipsius litis utilitate cognosci : ut Cicero singula pro Vareno comparat in primo crimine ; etenim in posteriore 3 crimine persona alieni cum persona matris temere compararetur. Quare optimum est, si fieri poterit, ut singula vincantur a singulis ; sed si quando in partibus laborabimus, universitate pugnandum est. 23 Et sive invicem accusant, sive crimen reus citra accusationem in adversarium vertit (ut Roscius in 1 sententia . . feratur, Regius, Zumpt : etiamsi . . . fertur, MSS. * at qui dicit . . . occidisti, added by Regius. 3 etenim in posteriore crimine persona, Halm: est enim superior enim persona, AG (persona enim A). 1 The pro Vareno being lost, it is impossible to say to what this refers, and for the same reason Halm's con- jecture must be regarded as quite uncertain. 58 BOOK VII. ii. 20-23 no difference in the pleadings, since the same methods will be required whether the verdict is given on both charges simultaneously or only on one. In such cases the defence must always come 21 first for three reasons. In the first place, we natur- ally prefer to secure our own safety than to injure our opponent, while secondly, our accusation will carry greater weight if we have first proved our own innocence, and thirdly, we shall thus secure a double line of defence. For the man who says, "I did not kill him," is then free to go on to say, "You killed him," whereas it is superfluous for the man who says, "You killed him," to go on to say, "I did not kill him." Further, such cases consist of comparison, which 22 may be effected in different ways. For we may either compare our case in its entirety with that of our adversary, or we may compare individual arguments. The choice between these two methods can only be determined by the requirements of the case. For example, in the pro Vareno, Cicero, in dealing with the first charge, compares the individual arguments : for it would have been rash in connexion with the second charge to compare the position of a stranger with that of a mother.1 It is therefore best, if possible, to refute argument by individual argument : if, however, our individual arguments are weak, we shall try to secure success by comparison of case with case as a whole. But whether the case is 23 one of mutual accusation, or the accused throws the guilt upon his opponent without making any formal accusation (as Roscius 2 did without indicting 1 Roscins Amerinus, accused of parricide and defended by Cicero. 59 QUINTILIAN accusatores suos, quamvis reos non fecisset), sive in ipsos, quos sua manu periisse dicemus, factum de- flectitur, non aliter quam in iis quae mutuam accu- sationem habent utriusque partis argumenta inter 24 se comparantur. Id autem genus de quo novissime dixi non solum in scholis saepe tractatur, sed etiam in foro. Nam id est in causa Naevii Arpiniani solum quaesitum, praecipitata esset ab eo uxor an se ipsa sua sponte iecisset. Cuius actionem et quidem solam in hoc tempus emiseram, quod ipsum me fecisse du- ctum iuvenali cupiditate gloriae fateor. Nam ceterae, quae sub nomine meo feruntur,1 negligentia exci- pientium in quaestum notariorum corruptae minimam partem mei habent. 25 Est et alia duplex coniectura huic avTiKarrj-yopia diversa, de praemiis, ut in ilia controversia, Tyrannus suspicatus a medico suo datum sibi venerium torsit eum et, cum is dedisse se pernegaret, arcessit alterum medicum ; ille datum ei venerium dixit, sed. se antidotum daturum, et dedit ei potionem, qua epota tyrannus decessit. De praemio duo medici contendunt. Nam ut illic factum in adversarium transferentium, ita hie sibi vindi- 1 feruntur, cod. Monac: ...runtur, A: fecerunt, G. 6o BOOK VII. ii. 23-25 his accusers), or the responsibility for the deed be placed on the victims themselves, whom we allege to have perished by their own hand, the arguments for both sides of the case will be compared in exactly the same way as in cases of mutual accusa- tion. The class of case last mentioned by me is, 24 however, not merely of frequent occurrence in the schools, but sometimes actually occurs in the courts. For example, the sole question in the case of Naevius of Arpinum was whether he threw his wife out of the window or she threw herself. My speech in this case is the only one of all my pleadings that I have so far published, and I admit that I was led to do so merely by a youthful desire for glory. For the other speeches which circulate as mine have little in them that actually fell from my lips, having been corrupted by the carelessness of the shorthand-writers who took them down with a view to making money out of them. There is also another type of conjectural case 25 which, though it involves two questions, is different from cases of mutual accusation ; such cases are con- cerned with rewards and may be illustrated by the following controversial theme. " A tyrant, suspect- ing that his physician had given him poison, tortured him and, since he persisted in denying that he had done so, sent for a second physician. The latter asserted that poison had been administered, but that he would provide an antidote ; he gave him a draught : the tyrant drank it and died. Both physicians claim a reward for slaying the tyrant." Now just as in cases of mutual accusation where each party shifts the guilt to his opponent, so in this 61 QU1NTILIAN cantium personae, causae, facultates, tempora, 26 instrumenta, testimonia comparantur. Illud quo- que, etiamsi non est avTiKar-qyopla, simili tamen ratione tractatur, in quo citra accusationem quaeritur, utrum factum sit. Utraque enim pars suam exposi- tionem habet atque earn tuetur, ut in lite Urbiniana petitor dicit, Clusinium Figulum filium Urbiniae acie victa, in qua steterat, fugisse, iactatumque casibus variis, retentum etiam a rege, tandem in Italiam ac patriam suam Marrucinos 1 venisse atque ibi agnosci ; Pollio contra, servisse eum Pisauri dominis duobus, medicinam factitasse, manumissum alienae se familiae venali immiscuisse, a se rogantem,2 ut ei serviret, 27 em[)tum. Nonne tota lis constat duarum causarum comparatione et coniectura duplici atque diversa? Quae autem accusantium ac defendentium, eadem petentium et infitiantium ratio est. Ducitur coniectura primum a praeteritis. In his sunt personae, causae, consilia. Nam is ordo est, ut facere voluerit, potuerit, fecerit. Ideoque intu- 28 endum ante omnia, qualis sit de quo agitur. Accu- satoris autem est efficere ut, si quid obiecerit non 1 Marrucinos, Bonnell: Marginos, MSS. 2 a se rogantem, A : ac rogantem, arrogantem, other MSS. 1 cp. iv. i. 11. and vn. ii. 4. * For another meaning of vcnalis, newly -bought, see vin. ii. 8. 62 BOOK VII. ii. 25-28 case we compare the characters, motives, means, opportunities, instruments and evidence of the persons who claim the reward. There is yet another 26 type of case which, though not one of mutual accusation, is treated in the same way : I mean a case in which we enquire, without accusing any- one, which of two acts has taken place. For both parties make and defend their own statement of the case. Thus in the suit concerning the estate of Urbinia1 the claimant says that Clusinius Figulus, the son of Urbinia, on the defeat of the army in which he was serving, fled and after various misfortunes, being even even kept in captivity bv the king, at length returned to Italy and his own home in the Marrucine district, where he was recog- nised. To this Pollio replies that he had been a slave to two masters at Pisaurum, that he had practised medicine, and finally, after receiving his freedom, inserted himself into a gang of slaves who were for sale 2 and was at his own request pur- chased by himself. Does not the whole suit consist 27 of comparison between the two cases and of two different and opposite sets of conjecture ? But the method to be followed is identical whether the case be one of accusation and defence or of claim and denial of the claim. Conjecture is, in the first place, based on what is past, under which I include persons, causes and intent. For in dealing with a case we first ask what the accused intended to do, next what he was in a position to do, and lastly what he actually did. Consequently the first point on which we must fix our attention is the character of the accused. It is 28 the business of the accuser to make any charge that 63 QUINTILIAN solum turpe sit, seel etiam crimini, de quo est iudi- cium, quam niaxime conveniat. Nam si reum caedis impudicum vel adulterum vocet, laedat quidem infamia, minus tamen hoc ad fidem valeat quam si audacem, petulantem, crudelem, temerarium osten- 29 derit. Patrono, si fieri poterit, id agendum est ut obiecta vel neget vel defendat vel minuat ; proximum est ut a praesenti quaestione separet. Sunt enim pleraque non solum dissimilia, sed etiam aliquando contraria : ut si reus furti prodigus dicatur aut negligens. Neque enim videtur in eundem et con- 30 temptus pecuniae et cupiditas cadere. Si deerunt haec remedia, ad ilia declinandum est, non de hoc quaeri nee eum, qui aliquando peccaverit, utique commisisse omnia, et hanc fiduciam fuisse accusa- toribus falsa obiiciendi, quod laesum et vulneratum 31 reum speraverint1 hac invidia opprimi posse. Alii a propositione accusatoris contraque earn 2 loci oriuntur. Saepe a persona prior ducit argumenta defensor et interim generaliter, incredibile esse a filio patrem occisum, ab imperatore proditam hostibus patriam. Facile respondetur vel quod omnia scelera in malos 1 speraverint, Gesner : speravere, MSS. 1 contraque earn, Halm : contra quam, A : contra qua, 0. 64 BOOK VII. ii. 28-31 he may bring against the accused not merely dis- creditable, but as consistent as possible with the crime for which he is arraigned. For example, if he calls a man accused of murder a debauchee or an adulterer, the discredit attaching to such charges will no doubt tell against the accused, but will, on the other hand, do less to prove the case than if he shows him to be bold, insolent, cruel or reckless. On the other hand, counsel for the defence must, 29 as far as possible, aim at denying, excusing or extenuating such charges, or, if that be impossible, show that they are not relevant to the case. For there are many charges which not only have no mutual resemblance, but may even at times con- tradict each other, as for instance if a man accused of theft is called prodigal or careless. For it is not likely that one and the same man should at once despise money and covet it. If such means 30 of defence are not available, we must take refuge with the plea that the charges made are not relevant to the case, that because a man has com- mitted certain sins, it does not follow that he has committed all, and that the accusers ventured to make such false charges merely because they hoped by injuring and insulting the accused to be able to overwhelm him with the unpopularity thus created. There are also other topics which arise 31 from and against the statement of the case by the prosecution. The defence may begin by drawing arguments from the person involved, and will at times urge on general grounds that it is incredible that a father has been killed by his son or that a commander has betrayed his countrv to the enemy. The answer to such arguments is easv, for we may 65 vol- in. D QUINTILIAN cadant ideoque saepe deprehensa sint, vel quod 32 indignum1 sit crimina ipsa atrocitate defendi. In- terim proprie, quod est varium. Nam dignitas et tuetur reum et nonnunquam ipsa in argumentum facti convertitur, tanquam inde fuerit spes impuni- tatis; proinde paupertas, humilitas, opes, ut cuique 33 ingenio vis est, in diversum trahuntur. Probi vero mores et anteactae vitae integritas nunquam non plurimum profuerint. Si nihil obiicietur, patronus quidem in hoc vehementer incumbet, accusator autem ad praesentem quaestionem, de qua sola iudicium sit, cognitionem adligabit dicens neminem non aliquando coepisse peccare, nee per encaenia 2 34 ducendum scelus primum. Haec in respondendo. Sic autem praeparabit actione prima iudicum animos, ut noluisse potius obiicere quam non potuisse cre- datur. Eoque satius est omni se anteactae vitae abstinere convicio quam levibus aut frivolis aut manifesto falsis reum incessere, quia fides ceteris detrahitur; et qui nihil obiicit, omisisse credi potest 1 indignum, Aldine ed. : ingenuum, ingenium, MSS. 2 Encaenia is a feast in honour of the dedication of a new temple or building. The phrase is strange, but there seems no possibility of plausible emendation. The word is rare and not likely to be corrupt. Fro is the reading of the best MSS. 66 BOOK VII. ii. 31-34 urge that bad men are capable of every crime, as is shown by every-day occurrences, or that the atrocious nature of a crime is but a poor argument against its having been committed. At times we 32 may base our arguments on the special circumstances of the person involved. This may be done in various ways : rank, for example, may be pleaded in defence of the accused, or at times, on the other hand, may be employed to prove his guilt on the ground that he trusted to his rank to secure impunity. Similarly poverty, humble rank, wealth may be used as argu- ments for or against the accused according to the talent of the advocate. Upright character, however, 33 and the blamelessness of his past life are always of the utmost assistance to the accused. If no charge is made against his character, counsel for the defence will lay great stress on this fact, while the accuser will attempt to restrict the judge to the sole con- sideration of the actual issue which the court has to decide, and will say that there must always be a first step in crime and that a first offence is not to be regarded as the occasion for celebrating a feast in honour of the defendant's character. So 34 much for the methods of reply which will be em- ployed by the prosecution. But he will also in his opening speech endeavour to dispose the judges to believe that it is not so much that he is unable, as that he is unwilling to bring any charge against the character of the accused. Consequently it is better to abstain from casting any slur on the past life of the accused than to attack him with slight or frivolous charges which are manifestly false, since such a proceeding discredits the rest of our argument. Further, the advocate who brings 67 QUINTILIAN maledicta tanquam supervacua ; qui vana congerit, confitetur unum x in anteactis argumentum, in quibus 35 vinci quam tacere maluerit. Cetera, quae a per" sonis duci solent, in argumentorura locis exposuimus. Proxima est ex causis probatio, in quibus haec maxime spectantur, ira, odium, metus, cupiditas, spes ; nam reliqua in horum species cadunt. Quorum si quid in reum conveniet, accusatoris est efficere ut 2 ad quidquid faciendum causae valere videantur, easque quas in argumentum sumet augere ; si minus, 36 illuc conferenda est oratio, aut aliquas fortasse la- tentes fuisse aut nihil ad rem pertinere cur fecerit, si fecit, aut etiam dignius esse odio scelus, quod non habuerit causam. Patronus vero, quotiens poterit^ instabit huic loco, ut nihil credibile sit factum esse sine causa. Quod Cicero vehementissime multis orationibus tractat, praecipue tamen pro Vareno, qui omnibus aliis premebatur ; nam et damnatus est. 37 At, si proponitur, cur factum sit, aut falsam causam 1 unum, Spalding : vanum, MSS. 2 ut, added by Spalding. 1 v. x. 20, where argumenlorum loci are defined as " the dwellings of arguments, where they hide and where we must look for them. 68 BOOK VII. ii. 34-37 no charges against the accused may be believed to have omitted all reference to past offences on the ground that such reference was not necessary, while the advocate who heaps up baseless charges thereby admits that his only argument is to be found in the past life of the accused, and that he has deliberately preferred to risk defeat on this point rather than say nothing at all about it. As regards the other 35 arguments derived from character, I have already discussed them in connexion with "places" of argument.1 The next type of proof is derived from causes or motives, such as anger, hatred, fear, greed or hope, since all motives can be classified as species of one or other of these. If any of these motives can be plausibly alleged against the accused, it is the duty of the accuser to make it appear that such motives may lead a man to commit any crime, and to ex- aggerate the particular motives which he selects for the purpose of his argument. If no such motive can 36 be alleged, he must take refuge in suggesting that there must have been some hidden motive, or in asserting that, if he committed the act, all enquiry into motive is irrelevant or that a motiveless crime is even more abominable than one which has a motive. Counsel for the defence, on the other hand, will, wherever it be possible, emphasise the point that it is incredible that any act should be committed without a motive. Cicero develops this point with great energy in a number of his speeches, but more especially in his defence of Varenus, who had every- thing else against him and was as a matter of fact condemned. But if the prosecution do allege some 37 motive, he will either say that the motive alleged is 69 QUINTILIAN aut levem aut ignotam reo dicet. Possunt autem esse aliquae interim ignotae, an heredem habuerit, an accusaturus fuerit eum, a quo dicitur l occisus. Si alia defecerint, non utique spectandas esse causas ; nam quern posse reperiri, qui non metuat, oderit, 38 speret? plurimos tamen haec salva innocentia facere. Neque illud est omittendum, non omnes causas in omnibus personis valere. Nam ut alicui sit furandi causa paupertas, non erit idem in Curio Fabricioque momentum. 39 De causa prius an de persona dicendum sit, quaeritur, varieque est ab oratoribus factum, a Cicerone etiam praelatae frequenter causae. Mihi, si neutro litis condicio praeponderet, secundum naturam videtur incipere a persona. Nam hoc magis generale est rectiorque divisio, an ullum crimen 40 credibile, an hoc. Potest tamen id ipsum, sicut pleraque, vertere utilitas. Nee tantum causae voluntatis sunt quaerendae, sed interim et erroris, ut ebrietas, ignorantia. Nam ut haec in qualitate 1 dicitur, vulgo: dicetur, AG. 70 BOOK VII. ii. 37-40 false or inadequate or unknown to the accused. For it is possible that a man may be quite ignorant of motives imputed to him. He may not, for example, have known whether the man whom he is accused of having killed had appointed him his heir or intended to prosecute him. All else failing, we may urge that motives are not necessarily of importance. For what man is there who is not liable to the emotions of fear, hatred or hope, and yet numbers of persons act on these motives without committing crime ? Nor should we neglect the point 38 that all motives do not apply to all persons. For example, although poverty may in certain cases be a motive for theft, it will not have the same force with men such as Curius or Fabricius. The question has been raised as to whether we 39 should deal first with persons or motives, and different orators have given different answers : Cicero as a rule prefers to treat motives first. For my own part, if the circumstances of the case do not point strongly in either direction, I consider that the most natural course is to begiu by dealing with persons. For the enquiry whether any crime can credibly be imputed to such a man as the accused is of a more general character than the question whether some one particular crime can be imputed, and in addition involves a greater correctness in division. Still, in 40 many cases expediency may make it desirable to reverse the order. Further, we have to seek not merely motives affecting the will, but also causes leading to error, such as drunkenness or ignorance. For just as such considerations lessen the guilt of a crime when regarded from the point of view of its quality, so they tell heavily against the criminal as 7* QU1NTILIAN 41 crimen elevant, ita in coniectura premunt. Et persona quidem nescio an unquam, utique in vero actu rei, possit incidere, de qua neutra pars dicat ; de causis frequenter quaeri nihil attinet, ut in adul- teriis, ut in furtis, quia illas per se ipsa crimina secum habent. 42 Post liaec intuenda videntur et consilia, quae late patent ; an credibile sit, reuni sperasse id a se scelus effici posse, an ignorari, cum fecisset, an, etiamsi ignoratum non esset, absolvi vel poena levi transigi vel tardiore vel ex qua minus incommodi consecu- turus quam ex facto gaudii videretur, an etiam tanti 43 putaverit poenam subire ; post haec, an alio tempore et aliter facere vel facilius vel securius potuerit, ut dicit Cicero pro Mil one enumerans plurimas occa- siones, quibus ab eo Clodius impune occidi potuerit; praeterea, cur potissimum illo loco, illo tempore, illo modo sit aggressus, (qui et ipse diligentissime trac- 4 4 tatur pro eodem locus) an, etiamsi nulla ratione ductus est, impetu raptus sit et absque sententia, (nam vulgo dicitur scelera non habere consilium) an etiam consuetudine peccandi sit ablatus. 1 c. xiv. sqq. 72 BOOK VII. ii. 40-44 far as the question of fact is concerned. I should 41 imagine that there could never be a case, or at any rate an actual case in the courts, in which neither side said anything about the character of the persons involved ; but this is not true of causes and motives, for it is often wholly unnecessary to trouble ourselves about them, as, for example, in cases of theft or adultery, crimes which cam* their motives on the face of them. Next we must consider the intention, a term which 42 involves a number of questions, such as whether it is probable that the accused hoped that he would be able to carry such a crime into effect, or that it would escape detection when committed, or that, even if detected, it would be pardoned or punished but lightly or after considerable lapse of time, or that the inconvenience involved by the penalty would be outweighed by the pleasure resulting from the crime : or again, whether it was worth while incurring the penalty ; and further, whether he could 43 have done the deed at some other time and in some other way, or with greater ease or securitv, as Cicero says in the pro Milone,1 where he mentions the numerous occasions when his client could have killed Clodius with impunity. There is also the question why the accused should have chosen that particular place or time or means for the commission of the crime, a topic to which Cicero gives a thorough treatment in the same passage ; or whether, without 44 having the least reason for the deed, he was carried away by the impulse of the moment and acted without deliberate purpose (for it is a common saying that crimes are irrational), or finally, whether he was led astray by the fact that crime had become a habit with him. 73 QUINTILIAN Excussa prima parte, an voluerit, sequitur, an potuerit. Hie tractatur locus, tempus, ut furtum in loco cluso, frequenti, tempore vel diurno, cum testes 45 plures, vel nocturno, cum maior difficultas. Inspi- ciuntur itaque difficultates occasionesque, quae sunt plurimae ideoque exemplis non egent. Hie sequens locus talis est, ut, si fieri non potuit, sublata sit lis ; si potuit, sequatur quaestio an fecerit. Sed haec etiam ad animi coniecturam pertinent, nam et ex bis colligitur an speraverit. Ideo spectari debent et instrumenta, ut Clodii ac Milonis comitatus. 46 Quaestio, an fecerit, incipit a secundo tempore, id est praesenti, deinde coniuncto, quorum sunt sonus, clamor, gemitus ; insequentis latitatio, metus, similia. His accedunt signa, de quibus tractatum est, verba etiam et facta, quaeque antecesserunt quaeque in- 47 secuta sunt. Haec aut nostra sunt aut aliena. Sed verba nobis magis nocent et minus * prosunt nostra 1 et minus, Regius : aut minus magis, MSS. 1 cp. V. x. 45. * V. eh. ix. 74 BOOK VII. ii. 44-47 Having dealt with the question whether he intended to commit the crime, we proceed to the question whether he was in a position to commit it. Under this head we discuss the place and occasion of the offence. For instance, in a case of theft we ask whether it was committed in a secluded or frequented spot, in the daytime, when witnesses are more numerous, or by night, when success is more difficult. Consequently we shall consider all the circumstances 45 rendering the act difficult or easy of accomplishment ; these require no illustration, being numerous and familiar. This second topic is of such importance that, if it is impossible to give it satisfactory treat- ment, the case falls to the ground ; if, however, we succeed in dealing with it adequately, we must proceed to consider whether the accused actually committed the act. But this topic involves con- jecture as to intention, for it is from these facts that we infer whether he hoped for success or not. Therefore we must also consider the question of the means at his disposal, such, for example, as the retinues of Clodius and Milo. The question whether he actually did the deed 46 belongs, in the first place, to the second division of time, namely the present, and secondly to time that is almost, though not actually contemporary : under this latter head come circumstances such as noise, cries or groans,1 while concealment, fear and the like belong to subsequent time. To these must be added indications, which we have already discussed elsewhere,2 and words and acts antecedent or subse- quent to the crime. These words and acts are either 47 our own or those of others. With regard to words, our own do us greater harm and bring us less profit 75 QUINTILIAN quam aliena ; magis prosunt et minus nocent aliena quam nostra. Facta autem interim magis prosunt nostra, interim aliena, ut si quid, quod pro nobis sit, adversarius fecit ; semper vero magis nocent nostra 48 quam aliena. Est et ilia in verbis differentia, quod aut aperta sunt aut dubia. Seu nostra seu aliena sunt, infirmiora in utrumque sint necesse dubia ; tamen nostra saepe nobis nocent, ut in ilia contro- versia : Interrogates filius, ubi esset pater, dixit, Ubicun- que est, vivit ; at ille in puteo mortuus est inventus. 49 Aliena, quae sunt dubia, nunquam possunt nocere nisi aut incerto auctore aut mortuo. Node audita vox est, Cavele tyrannidem ; et, Interrogatus , cuius veneno moreretur, respondit, Non expedit tibi scire. Nam si est, qui possit interrogari, solvet ambiguitatem. 50 Cum autem dicta factaque nostra defendi solo ammo possint, aliena varie refutantur. De uno quidem maximo genere coniecturalium controversiarum locuti videmur, sed x in omnes aliquid ex his cadit. Nam furti, depositi, creditae 1 videmur sed, Spalding : videmus et, (J : videmur et, A. 76 BOOK VII. ii. 47-50 than do those of others, while those of others bring us greater profit and do us less harm than our own. On the other hand, with regard to deeds, it is some- times from our own and sometimes from those of others that we derive the greatest advantage, as, for example, when our opponent has done something which tells in our favour: but our own acts are always more injurious to our case than are those of others. Again, with regard to words, we must 48 distinguish between those whose meaning is clear and those whose significance is doubtful. The latter will necessarily give less assistance to either side, be they our own words or another's. On the other hand, any ambiguity in our own words will always tell against us, as, for example, in the following contro- versial theme. " A son, on being asked where his father was, replied : ' Wherever he is, he is alive.' But the father was found dead at the bottom of a well." When the ambiguity lies in words used by 49 others, they can never do us any harm, unless he who uttered them be unknown or dead ; I will give two illustrations of my meaning: "A cry was heard at night, ' Be on your guard against the establish- ment of a tyranny ' ; " and, " on being asked who had poisoned him, he replied : ' It is not fit that you should know.' " For if the speaker is available for examination, he will clear up the ambiguity. Finally, 50 whereas our own words and deeds can only be justi- fied by their intention, the deeds and words of others can be disposed of in a number of different ways. My remarks on this subject have, I think, been confined to one very important class of conjectural cases, but something of what I have said will apply to all cases. For example, in cases concerned with 77 QUINTILIAN pecuniae et a facultatibus argumenta veniunt, an fuerit, quod deponeretur, et a personis, an ullum deposuisse apud hunc, vel huic credidisse credibile sit, an petitorem calumniari, an reum infitiatorem 51 esse vel furem. Sed etiam in furti reo sicut in caedis quaeritur de facto et de auctore. Crediti et depositi duae quaestiones, sed nunquam iunetae, an datum sit, an redditum. Habent aliquid proprii adulterii causae, quod plerumque duorum discrimen est et de utriusque vita dicendum, quanquam et id quaeritur, an utrumque pariter defendi oporteat. Cuius rei consilium nascetur ex causa; nam si adiu- vabit pars altera, coniungam ; si nocebit, separabo. 62 Ne quis autem mihi putet temere excidisse, quod plerumque duorum crimen esse adulterium, non semper dixerim : potest accusari sola mulier incerti adulterii : Munera domi inventa sunt ; pecunia, amis auctor non exstat ; codicilli, dubiam ad quern scripti 53 In falso quoque ratio similis ; aut enim plures in 78 BOOK VII. ii. 50-53 theft, deposits and loans, arguments are derived both from possibilities (as when we enquire whether there was any money to deposit), and from persons, as when we raise the question whether it is credible that any- one deposited money with this man or trusted him with a loan, or that the claimant is bringing a false accusation, or that the accused repudiates his debt or is a thief. But even in the case of an accusation of 61 theft, just as in an accusation of murder, we enquire both into the act and the author, while in cases concerned with loans and deposits there are also two questions (though these are always distinct from one another), namely, whether the money was delivered and whether it has been repaid. Cases of adultery are marked by the following peculiarity, that, as a rule, the safety of two persons is involved, and it is necessary to say something of the past life of both, although some have raised the question whether both parties should be defended together. The line to be taken must depend on the circum- stances of the individual case: if the defence of one party lends support to the defence of the other, I should defend them conjointly ; if the reverse is the case, 1 should treat the two cases separately. How- 52 ever, that no one may think me somewhat hasty in saying that two persons are as a rule involved in charges of adultery, I would point out that I would not assert that this is always the case. The woman alone may be accused of adultery with a person unknown : we may say, " Gifts were found in the house, and money from some unknown source, and love-letters whose destination cannot be ascer- tained." The case is similar in accusations of 53 forgery : for either there are several accused or only 79 QUINTILIAN culpam vocantur aut unus. Et scriptor quidem semper tueri signatorem necesse habet, signator scriptorem non semper, nam et decipi potuit. Is autem, qui hos adhibuisse et cui id factum dicitur, et scriptorem et signatores defendet. Iidem argu- mentorum loci in causis proditionis et adfectatae tyrannidis. 54 Verum ilia scliolarum consuetudo ituris in forum potest nocere, quod omnia, quae in themate non sunt, pro nobis ducimus. Adulterium obiicis ; quis testis ? quis index ? Proditionem,1 quod prelium ? qais conscins ? Venenum ; ubi emi ? a quo ? quando ? quanti ? per quern dedi ? Pro reo tyrannidis adfectatae ; 55 vbi sunt arma 9 quos contraxi satellites ? Neque haec nego esse dicenda, et ipsis utendum pro parte suscepta. Nam et in foro aliqua, quando 2 adver- sarius probare non poterit, desiderabo. Sed in foro tantam illam facilitatem olim desideravimus, ubi non fere causa agitur, ut non aliquid ex his aut plura 56 ponantur. Huic simile est, quod in epilogis quidam, 1 Proditionem, added by Spalding. * aliqua quando, Spalding: aliquando, AG. 1 The writer will always support the signatory's state- ment that he signed the document. The signatory will not always support the writer ; e. g. he may not know the nature of the document which he signed. 1 cp. iv. ii. 28. As the examples which follow show, the declaimer assumes that his imaginary opponent has no good evidence to support his case : i. e. no witness, no informer, no weapons, no bodyguard. 8o BOOK VII. ii. 53-56 one. The writer of a document always regards it as necessary to support the signatory, but the signatory does not always support the writer of the document, for it is always possible that he has been deceived on the matter.1 On the other hand, the man who is said to have called in their services, and for whom the document is alleged to have been written, will always defend both writer and signatories. The arguments employed in cases of treason or attempted tvranny will be drawn from the same sources. But the custom prevalent in the schools of regard- 54 ing everything not definitely stated in the theme as being in the speaker's favour,2 is likely to prove harmful to students destined for practice in the courts. You bring a charge of adultery. " Who is your witness? who is your informer? " You charge me with treason. " What was my reward ? who was my accomplice ? " You charge me with poisoning. •• Where did I buy the poison, and from whom ? When did I buy it, what was the price, and whom did I employ to administer it ? " Or in defence of one charged with attempting to establish himself as tyrant, the declaimer will cry, * Where are my weapons, and what bodyguards have I ever collected?'' I do not deny that these questions 55 should be asked, or that we should use them as far as is permitted by the role whicli we have assumed ; for even in the courts I feel that it will be desirable to put such questions, if my opponent is not in a position to reply effectively ; but we have often felt the lack of such freedom in the courts, whereas in the schools there is scarcely a case where one or more examples of this method are not to be found. Similar to this is the practice which some 56 81 QUINTILIAN quibus volunt, liberos, parentes, nutrices accommo- dant, nisi quod magis concesseris ea, quae non sint posita, desiderare quam adiicere.1 De animo quomodo quaeratur, satis dictum est, cum ita diviserimus, an voluerit, an potuerit, an fecerit. Nam qua via tractatur, an voluerit, eadem, quo animo fecerit; id enim est, an male facere 57 voluerit. Ordo quoque rerum aut adfert aut detra- hit fidem ; multo scilicet magis res, prout ponuntur,2 congruunt aut repugnant. Sed haec nisi in ipso complexu causarum non deprehenduntur. Quaeren- dum tamen semper, quid cuique connectatur et quid consentiat. III. Sequitur coniecturam finitio. Nam, qui non potest dicere nihil fecisse, proximum habebit, ut dicat, non id fecisse, quod obiiciatur. Itaque pluribus legibus in iisdem quibus coniectura versatur, defensionis tantum genere mutato, ut in furtis, depositis, adulteriis. Nam, quemadmodum dicimus, 1 adiicere, Spalding: dicere, AG. 2 ponuntur, added by Spalding. 1 i.e. it is safer to ask the imaginary opponent "where is your evidence?" than to produce imaginary evidence ourselves. 2 § 27. BOOK VII. li. 56-m. 1 declaimers allow themselves in their perorations of assigning children, parents and nurses to their characters at will, though it is more reasonable to call for evidence which is not explicitly mentioned in the statement of the theme than to introduce it ourselves.1 With regard to the method to be followed when we enquire into intention, I have said enough in dividing the subject into three questions,2 namely, whether the accused intended to do the deed, whether he was in a position to do it and whether he actually did it. For the method of enquiring into the purpose with which an act was committed is identical with that employed in enquiring whether the deed was intended, since it amounts to asking whether a criminal act was intended. Further, the 57 order in which the facts are stated may either con- tribute to or detract from the credibility of our case ; for consistency and the reverse depend to a very great extent on the way the circumstances are arranged. But we shall be unable to detect these qualities unless we consider the circumstances in connexion with the case as a whole. None the less, it will always be necessary to consider what are best suited to be placed together. III. Conjecture is followed by definition. For the man who cannot assert that he has done nothing, must needs take refuge in the assertion that he has not committed the act which is alleged against him. Consequently the laws which govern definition are for the most part the same as those which govern con- jecture, the only difference lying in the method to be employed in defence in cases such as those concerned with theft, deposits or adultery. For just as we say, 83 QUINTILIAN Non feci furtum, non accept depositum, non commisi adulterium, ita, Non est hoc furtum, non est hoc deposi- 2 turn,1 non est hoc adulterium. Interim a qualitate ad finitionem descenditur, ut in actionibus dementiae, malae tractationis, rei publicae laesae ; in quibus si recte facta esse, quae obiiciuntur, dici non potest, illud succurrit, Non est male tractate uxorem verbis 2 laedere. Finitio igitur est rei propositae propria et dilucida et breviter coinprehensa vei'bis enuntiatio. 3 Constat maxime, sicut est dictum, genere, specie, differentibus, propriis : ut si finias equum, (noto enim maxime utar exemplo) genus est animal, species mortale, differentia irrationale, (nam et homo mortale erat) proprium hinniens. Haec adhi- 4 betur orationi pluribus causis. Nam turn est certum de nomine, sed quaeritur quae res ei subiicienda sit, turn res est manifesta, sed de nomine non constat- Cum de 3 nomine constat, de re dubium est, interim 5 coniectura est : ut si quaeratur, quid sit deus. Nam qui neget deum esse spiritum omnibus partibus im- , mixtum, non hoc dicat falsam esse divinae illius naturae appellationem, sicut Epicurus, qui humanam ei formam locumque inter mundos dedit? Nomine 6 uterque uno utitur ; utrum sit in re, coniectat. In- terim qualitas tractatur, ut quid sit rhetorice, vis 1 depositum, Badius: initiatio, AG: mutuatio, cod. Mon. 2 uxorem verbis, Spalding : rem publicam verbis, MSS. 3 sed . . . constat, Halm : et quod nomine constat, MSS. 1 v. x. 55. 84 BOOK VII. hi. 1-6 " I have not committed theft, I never received a deposit, I am not guilty of adultery," so we say, " This is not theft, this is not a deposit, this is not adultery." Sometimes we may pass from quality to definition, as in actions concerned with lunacy, cruelty and offences against the State. In such cases if it is impossible to assert that the acts alleged were right, we are left with such pleas as, " To use bad language to one's wife does not amount to cruelty." Definition is the statement of the fact called in question in appropriate, clear and concise language. As I have already said,1 it consists mainly in the statement of genus, species, difference and property. For example, if you wish to define a horse (lor I will take a familiar example), the genus is animal, the species mortal, the difference irrational (since man also is mortal) and the property neighing. Definition is employed by the orator for a number of different reasons. For sometimes, though there may be no doubt as to a term, there is a question as to what it includes, or, on the other hand, there may be no doubt about the thing, but no agreement as to the term to be applied to it. When the term is agreed, but the thing doubtful, conjecture may sometimes come into play, as, for instance, in the question, " What is god ? ' ' For the man who denies that god is a spirit permeating all things, assuredly asserts that the epithet "divine" is falsely applied to his nature, like Epicurus, who gives him a human form and makes him reside in the intermundane space. While both use the same term god, both have to em- ploy conjecture to decide which of the two meanings is consistent with fact. Sometimes again we have recourse to quality, as in the question, " What is 85 QUINTILIAN persuadendi an bene dicendi scientia. Quod genus est in iudiciis frequentissimum. Sic enim quaeritur, an deprehensus in lupanari cum aliena uxore adulter sit : quia non de appellatione, sed de vi facti eius ambigitur, an omnino peccaverit. Nam si peccavit, 7 non potest esse aliud quam adulter. Diversum est genus, cum controversia consistit in nomine, quod pendet ex scripto, nee versatur in iudiciis nisi propter verba quae litem faciunt : an, qui se inter- ficit, homicida sit ; an, qui tyrannum in mortem compulit, tyrannicida ; an carmina magorum vene- ficium. Res enim manifesta est, sciturque non idem esse occidere se quod alium, non idem occidere tyrannum quod compellere ad mortem, non idem carmina ac mortiferam potionem ; quaeritur tamen, an eodem nomine appellanda sint. 8 Quanquam autem dissentire vix audeo a Cicerone, qui multos secutus auctores dicit, finitionem esse de eodem et de altero, semper enim l neganti aliquod esse nomen dicendum quod sit potius : tamen equi- 9 dem 2 tris habeo velut species. Nam interim con- 1 enim, added by Regius. 2 equidem, Christ: eandem, AG. 1 cp. in. vi. 31. 86 BOOK VII. hi. 6-9 rhetoric ? Is it the power to persuade or the science of speaking well?" This form of question is of frequent occurrence in the courts. For instance, the question may arise whether a man caught in a brothel with another man's wife is an adulterer. Here there is no doubt about the name ; it is the significance of the act which is in doubt, since the question is whether he has committed any sin at all. For if he has sinned, his sin can only be adultery. There is a different type of question where the dispute is concerned with the term to be applied, which depends on the letter of the law : it is a form of question which can only arise in the courts from the actual words on which the dispute turns. Take as examples the questions, whether suicide is a form of homicide, or whether the man who forces a tyrant to kill himself can be considered a tyrannicide, or whether magical incantations are equivalent to the crime of poisoning. In all these cases there is no doubt about the facts, for it is well known that there is a difference between killing oneself and killing another, between slaying a tyrant and forcing him to suicide, between employing incantations and administering a deadly draught, but we enquire whether we are justified in calling them by the same name. Though I hardly like to differ from Cicero,1 who follows many authorities in saying that definition is concerned with identity and difference (since he who denies the applicability of one term must always produce another term which he regards as prefer- able), for my own part I consider that definition falls into three types, which I may perhaps call species For at times it is convenient merely to 87 QU1NTILIAN venit solum 1 quaerere, an hoc sit, ut an adulterium in lupanari. Cum hoc negamus, non necesse est dicere quid id vocetur, quia totum crimen infitiamur. Interim quaeritur, hoc an hoc ; furtum an sacrilegium. Non quin sufficiat non esse sacrilegium, sed quia necesse sit dicere quid sit aliud ; quo in loco utrum- 10 que finiendum est. Interim quaeritur in rebus specie diversis, an et hoc et hoc eodem modo sit appellan- dum, cum res utraque habet suum nomen, ut amato- rium, venenum. In omnibus autem huius generis litibus quaeritur, an etiam hoc, quia nomen de quo ambigitur utique in alia re certum est. Sacrilegium est rem sacram de templo surripere : an et privatum ? Adulterium cum aliena uxore domi coire : an et in lupanari ? Tyrannicidium occidere tyrannum : an et 1 1 in mortem compellere ? Ideoque avWoyta-fios, de quo postea dicam, velut infirmior est finitio, quia in hac quaeritur, an idem sit huius rei nomen quod alterius, illo, an proinde habenda sit haec atque ilia. 12 Est et talis finitionum 2 diversitas, ut qui idem sentiant, non iisdem verbis comprehendant : ut 1 solum, Zumpt: suum, AG. * finitionum, Regius: divisionum, MSS. 1 cp. vni. v. 31. 88 BOOK VII. hi. 9-12 enquire whether one particular term is applicable to a given thing, as in the question whether an act committed in a brothel is adultery. If we deny that it is adultery, there is no need to state what it should be called, since we have given a total denial to the charge. Secondly, there are occasions when the question is which of two terms is to be applied to a thing, as in the question whether an act is theft or sacrilege. It may be sufficient for the defence that it is not sacrilege, but it is still necessary to show what else it is, and therefore we must define both. Thirdly, there are times when the question 10 concerns things which are different in species, and we ask whether two different things are to be called by the same name, in spite of the fact that each has a special name of its own : for example, is the same name applicable both to a love-potion and a poison?1 But in all disputes of this kind the question is whether one thing is another thing as well, since the name in doubt does without question apply to something else. It is sacrilege to steal a sacred object from a temple ; is it also sacrilege to steal private property from a temple? It is adultery to lie with another man's wife in one's own house ; is it adultery to do so in a brothel? It is tvrannicide to slay a tyrant ; is it tyrannicide to force him to slay himself? Consequently the syllogism, to which 11 I shall return later, is virtually a weaker form of definition, since while definition seeks to determine whether one thing has the same name as another, syllogism seeks to determine whether one thing is to be regarded as identical with another. There is 12 moreover great variety in definitions. For instance, persons will give different verbal expression to 89 QUINTILIAN rhetorice bene dieendi scientia, et eadem bene in- veniendi et bene enuntiandi et dieendi secundum virtutem orationis et dieendi quod sit officii. Atque providendum ut, si sensu non pugnant, comprehen- sione dissentiant. Sed de his disputatur, non liti- 13 gatur. Opus est aliquando finitione obscurioribus et ignotioribus verbis ut, quid sit clarigatio, erctum citum ; l interim notis nomine verbis,5 quid sit penus, quid litus. Quae varietas efficit, ut earn quidam coniecturae, quidam qualitati, quidam legitimis quaestionibus 14 subiecerint. Quibusdam ne placuit quidem omnino subtilis haec et ad morem diabeticorum formata conclusio, ut in disputationibus potius arguta 3 ver- borum cavillatrix quam in oratoris officio multum adlatura momenti. Licet enim valeat in sermone tantum, ut constrictum vinculis suis eum qui respon- surus est vel tacere vel etiam invitum id quod sit contra cogat fateri, non eadem est tamen eius in 15 causis utilitas. Persuadendum enim iudici est, qui etiamsi verbis devinctus est, tamen, nisi ipsi rei accesserit, tacitus dissentiet. Agenti vero quae tanta est liuius praecisae comprehensionis necessitas ? An, si non dixero, Homo est animal mortale rationale, non potero, expositis tot corporis animique proprie- 1 erctum citum, Halm : erctus citus, A : ercet ut, 67. 2 verbis, early edd. : videbis, AG. ' arguta, Zumpt: arguments, AG. 1 A formal demand for redress under threat of war. 2 An undivided inheritance. * Store of provisions. * Shore, see v. xiv. 34, where its derivation is explained as qua fluctus eludit. 9° BOOK VII. hi. 12-15 things about which they are really in agreement : thus rhetoric is defined as the science of speaking well, as the science of correct conception or correct expression of what we have to say, as the science of speaking in accordance with the excellence oj an orator and again of speaking to the purpose. And we must take care to discover how it is that definitions, identical in meaning, differ in the form in which they are expressed. However, this is a subject for discussion and not for a quarrel. Definition is some- 13 times required to explain rare or obscure words such as clarigatio1 or erctum citum,2 or again to explain familiar words such as penus3 or lilus.* This variety in definition has caused some writers to include it under conjecture, others under quality and others again under legal questions. Some, on 14 the other hand, entirely reject the elaborate and formal methods of reasoning employed by dialectic, regarding such ingenuity as suited rather to quibbles over words in philosophical discussions than as likely to carry much weight in the performance of the duties of an orator. For though in dialogue defi- nition may serve to fetter the person who has got to reply in chains of his own making, or may force him to silence, or even to reluctant confession of a point which tells against himself, it is of less use in forensic cases. For there we have to persuade the 15 judge, who, even though he may be tied and bound with our words, will still dissent in silence, unless he is brought really into touch with the actual facts. And what need has a pleader for such precision of definition ? Even if I do not say that man is an animal, mortal and rational, surely I shall still be able, by setting forth the numerous properties of his 91 QUINTILIAN tatibus, latius oratione ducta, vel a dis eum vel a IG mutis discernere ? Quid quod nee uno modo defini- tur res eadem (ut facit Cicero : quid est aunt vulgo ? universos) jet latiore varioque tractatu, ut omnes oratores plerumque fecerunt ? Rarissima enim apud eos reperitur ilia ex consuetudine philosophorum ducta servitus [est certa servitus] x ad certa se verba adstringendi, idque faciendum in libris Ciceronis de 17 Oratore vetat M. Antonius. Nam est etiam pericu- losum, cum, si uno verbo sit erratum, tota causa cecidisse videamur ; optiinaque est media ilia via, qua utitur Cicero pro Caecina, ut res proponatur, verba non perielitentur. Etenim, reciperalores, non ea sola vis est quae ad corpus nostrum vitamque pervenit, sed cliam multo maior ea quae periculo mortis iniecto formidine animum perterritum loco saepe et cerlo statu 18 demovet. Aut, cum finitionem praecedit probatio, ut in Philippicis Cicero Servium Sulpicium occisum ab Antonio colligit et in clausula demum ita finit : Is enim profecto mortem attulit qui causa mortis fuit. Non negaverim tamen haec quoque, ut expediet causae, esse facienda, et si quando firme comprehendi poterit brevi complexu verborum finitio, esse id turn 1 Expunged by Halm. 1 l'ro Mur. xxxv. 73. 2 it xxv. 108 sjq. 3 xv. 42. « ix. iii. 7. 92 BOOK VII. hi. 15-18 body and mind in more general terms, to distinguish him from gods or dumb beasts. Again, may not the 16 same thing be defined in more than one way, as Cicero does when he says, " What do we mean when we say ' commonly ' : surely we mean ' by all men ' ?" * May it not be given a wide and varied treatment such as is frequently employed by all orators ? For it is rare to find orators falling victims to that form of slavery introduced from the practice of the philo- sophers and tying themselves down to certain definite words ; indeed it is absolutely forbidden by Marcus Antonius in the de Oratore* of Cicero. For it is a most dangerous practice, since, if we make 17 a mistake in a single word, we are like to lose our whole case, and consequently the compromise adopted by Cicero in the pro Caecina 3 is the safest course to follow ; this consists in setting forth the facts without running any risks over the exactness of our termi- nologv. These are his words : " Judges, the violence which threatens our lives and persons is not the only kind of violence : there is a much more serious form which by the threat of death fills our minds with panic and often turns them from their natural condition of stability." Or again, we may prove 18 before we define, as Cicero does in the Philippics,* where he proves that Senilis Sulpicius was killed by Antony and introduces his definition at the con- clusion in the following terms : — " For assuredly the murderer was he who was the cause of his death." I would not. however, deny that such rules should be employed, if it will help our case, and that, if we can produce a definition which is at once strong and concise, it will be not merely an ornament to our speech, but will also produce the strongest im- 93 QUINT1LIAN elegans turn etiam fortissimum, si modo erit ilia inexpugnabilis. 19 Eius certus ordo est, quid sit, an hoc sit. Et in hoc fere labor maior est, ut finitionem confirmes, quam ut in rem finitionem applices. In eo, quid sit, duplex opus est. Nam et nostra confirmanda est et 20 adversae partis destruenda finitio. Ideoque in schola, ubi nobis ipsi fingimus contradictionem, duos ponere debemus fines, quales utrinque esse optimi poterunt. At in foro providendum, num forte supervacua et nihil ad causam pertinens an ambigua an contraria an communis sit finitio; quorum nihil accidere nisi 21 agentis culpa potest. Ut recte autem finiamus, ita fiet, si prius in animo constituerimus quid velimus efficere. Sic enim accommodari ad voluntatem verba poterunt. Atque ut a notissimo exemplo, quo sit res lucidior, non recedamus : Qui privatum pecuniam 22 de templo surripuil, sacrilegii reus est. Culpa manifesta est ; quaestio est an huic crimini nomen quod est in lege conveniat. Ergo ambigitur an hoc sacrilegium 1 i, t. the thing under consideration. 94 BOOK VII UK 18-22 pression, provided always that it cannot be over- thrown. The order to be followed in definition is invariable. 19 We first ask what a thing is, and then, whether it is this.1 And there is generally more difficulty in the establishment than in the application of a definition. In determining what a thing is, there are two things which require to be done : we must establish our own definition and destroy that of our opponent. Consequently in the schools, where we ourselves 20 imagine our opponent's reply, we have to introduce two definitions, which should suit the respective sides of the case as well as it is in our power to make them. But in the courts we must give careful consideration to the question whether our definition may not be superfluous and irrelevant or ambiguous or inconsistent or even of no less service to our opponents than to ourselves, since it will be the fault of the pleader if any of these errors occur. On the other hand, we shall ensure the right definition, 21 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 22 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 95 QUINTILIAN sit? Accusator, quia de templo surrepta sit pecunia, utitur hoc nomine. Reus, quia privatam surripuerit, negat esse sacrilegium sed furtum fatetur. Actor ergo ita finiet, Sacrilegium est surripere aliquid de sacro ; Reus, Sacrilegium est surripere aliquid x sacri. 23 Uterque finitionem alterius impugnat. Ea duobus generibus evertitur, si aut falsa est aut parum plena. Nam illud tertium nisi stultis non accidit, ut nihil 24 ad quaestionem pertineat. [Falsa est, si dicas, Equus animal rationale; nam est equus animal sed irra- tionale. Quod autem commune cum alio est, desinet esse proprium.] 2 Hie reus falsam dicit esse finitionem accusatoris, accusator autem non potest dicere falsam rei ; nam est sacrilegium surripere aliquid sacri ; sed dicit parum plenam, adiiciendum enim aut ex sacro. 25 Maxim us autem usus in approbando refellendoque fine propriorum ac differentium, nonnunquam etiam etymologiae. Quae tamen omnia, sicut in ceteris, confirmat aequitas, nonnunquam et coniectura mentis. Etymologia maxime rare est : Quid enim est aliud tumultus, nisi perturbatio tanta, ut maior timor 26 oriatur ? Unde etiam nomen duclum est tumultus. Circa propria ac differentia magna subtilitas, ut cum quae- 1 de sacro . . . aliquid; added by early editors. 8 Falsa . . . proprium, expunged by Gesner. 1 Conjecture is here used in the ordinary sense, not the technical. 2 Cic. Phil. vin. i. 3. Tttmiiltus is here used by Cicero in its special sense, civil war or Gallic invasion. He derives it from timor multus. 3 cp. in. vft 25. 96 BOOK VII. hi. 22-26 it is theft. The prosecutor will therefore give the following definitions, " It is sacrilege to steal any- thing from a sacred place." The accused will reply with another definition, " It is sacrilege to steal something sacred." Each impugns the other's defi- nition. A definition may be overthrown on two 23 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, 24 " A horse is a rational animal," for though the horse is an animal, it is irrational. Again, a thing which is common to something else cannot be a property of the thing defined.] In the case under discussion, then, the accused alleges that the definition given by the accuser is false, whereas the accuser cannot do the same by his opponent's definition, since to steal a sacred object is undoubtedly sacrilege. He therefore alleges that the definition is too narrow and requires the addition of the words "or from a sacred place." But the most effective method of 25 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 con- jecture.1 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." 2 Great 26 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,8 97 QUINTILIAN ritur an addictus, quem lex servire, donee solvent, iubet, servus sit. Altera pars finit ita, Servus est, qui est iure in servitule ; altera, qui in servitute est eo hire, quo servus, aut, ut antiqui dixerunt, qui servitutem servit. Quae finitio, etiamsi distat aliquo, nisi tamen 27 propriis et differentibus adiuvatur, inanis est. Dicet enim adversarius, servire eum servitutem aut eo iure quo servum. Videamus ergo propria et differentia, quae libro quinto leviter in transitu attigeram. Servus, cum manumittitur, fit libertinus, addictus recepta libertate ingenuus ; servus invito domino libertatem non consequetur, addictus soluendo citra voluntatem domini consequetur : x ad servum nulla lex pertinet, addictus legem habet. Propria liberi, quod nemo babet nisi liber, praenomen, nomen, cognomen, tribum ; habet haec addictus. 28 Excusso quid sit, prope peracta est quaestio, an hoc sit. Id enim agimus ut sit causae nostrae conve- niens finitio. Potentissima est autem in ea qualitas, an amor insania. Hue pertinebunt probationes, quas addictus . . . consequetur, added by Regius. 1 V. x. GO. 98 BOOK VII. hi. 26-28 who is condemned by the law to remain in a state of servitude until he has paid his debt, is actually a slave. One party will advance the following defi- nition, " A slave is one who is legally in a state of servitude." The other will produce the definition, "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')." This definition, though it differs considerably from the other, will be quite useless unless it is supported by properties and differences. For the opponent will say that the 27 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.1 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 28 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 99 QUINTILIAN Cicero dicit propria* esse finitionis, ex antecedenti- bus, consequentibus, adiunctis, repugnantibus, causis, effectis, similibus ; de quorum argumentorum natura 29 dictum est. Breviter autem pro Caecina Cicero initia, causas, effecta, antecedentia, consequentia com plexus est : Quid igilur J'ugiebant? Propter metum Quid metuebant ? Vim videlicet. Potestis igitur principia negare, aim extrema concedatis ? Sed similitudine quo- que usus est, Quae vis in hello appellatur, ea in olio non 30 appellabitur ? Sed etiam ex contrario argumenta ducuntur, ut si quaeratur, amatorium venenum sit necne ; quia venenum amatorium non sit. Ulud alterum genus quo sit manifestius adolescen- tibus meis (meos enim semper adolescentes putabo), 31 hie quoque fictae controversiae utar exemplo. Iuvenes, qui convivere solebant, constituerunt, ut in litore cenarent. Unius, qui cenae defuerat, nomen tumido, quern exslruxe- rant, inseripserunt , Pater eius, a transmarina pere- grinutione cum ad litus idem appulisset, lecto nomine 32 suspendit se. Dicunlur ii causa mortis fuisse. Hie linitiu est aecusatoris. Per quern factum est, ut quis 1 Top. xxiii. 88. * v. x. 73. 3 xv. 44. 4 xv. 43. IOO BOOK VII. hi. 28-32 in our procedure belong those proofs which according to Cicero x are peculiar to definition, that is, proofs drawn from antecedents, consequents, adjuncts, con- traries, causes, effects and similarities, with the nature of which I have already dealt.2 I will, how- 29 ever, quote a passage from the pro Caccinaz 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 ? " But he also argued from similarity : * "Shall not that which is called violence in war be called violence in peace as well ? " Arguments may 30 also be drawn from contraries, as for instance in the question whether a love-potion can be a poison, in view of the fact that a poison is not a love-potion. In order that my young students (and I call them mine, because the young student is always dear to me) may form a clearer conception of this second kind of definition, I will once more quote a fictitious controversial theme. " Some young men who were 3 1 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 32 will run as follows : " The man whose act leads to another's death is the cause of his death." The definition given by the accused will be, " He who wittingly commits an act which must necessarily lead 101 QU1NTILIAN perieri't, causa mortis est ; rei est, Qui fecit quid sciens, per quod perire homini necesse est. Remota finitione accusatori sat est dicere, Causa 7nortis fuistis ; per vos enim factum est, ut homo perirel ; quia, nisi vos Mud 33 fecissetis, viveret. Contra, Non slatim, per quern factum est, ut quis periret, is damnaii debet, ut accusator, testis, iudex rei capitalis. Nee undecunque causa Jluxit, ibi culpa est : ut si quis profectionem suaserit aut amicum arcessierit trans mare et is naufragio pericrit, ad cenam 34 invitarit et is cruditate illic contractu decesserit. Nee fuerit in causa mortis solum adolescentium factum sed credulitas senis, in dolore ferundo injtrmilas ; denique, si fortior fuisset aut prudentior, viveret. Nee mala mente fecerunt ; et Me potxdt vel ex loco tumuli vel ex opere tumultuario suspicari non esse monumentum. Qui ergo puniri debent, in quibus omnia absunt x homicidae praeter manum ? 35 Est interim certa finitio, de qua inter utramque partem convenit : ut Cicero dicit, Maiesfas est in imperii atque in nominis populi Komani dignitate. Qua- eritur tamen, an maiestas minula sit, ut in causa Corne- 1 absunt, Teuffel : sunt, MSS. 1 Part. Or. xxx. 105. maiestatem imminuere = to commit l&se-majeste or treason. 102 BOOK VII. hi. 32-35 to another's death, is the cause of his death." With- out any formal definition it would be sufficient for the accuser to argue as follows : " 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 33 does not necessarily follow that the man whose act leads to another's death should be condemned forth- with. 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 34 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 he 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 35 both parties are agreed, as in the following example from Cicero : x " Majesty resides in the dignity of the Roman power and the Roman people." The question however, is, whether that majesty has been i°3 QUINTILIAN lii quaesitum est. Sed hie etiamsi x videri potest finitiva, tamen quia de finitione non ambigitur, iudicatio est qualitatis atque ad eum potius statum reducenda, ad cuius forte quidem venimus mentio- nem, sed erat ordine proximus locus. IV. Est autem qualitas alia de summo genere atque ea quidem non simplex. Nam et qualis sit cuiusque rei natura et quae forma quaeritur : an immortalis anima, an humana specie deus ; et de magnitudine ac numero, quantus sol, an unus mundus. Quae omnia coniectura quidem colligun- tur, quaestionem tamen habent in eo, qualia sint? 2 Haec et in suasoriis aliquando tractari solent, ut, si Caesar deliberet, an Britanniam impugnet, quae sit Oceani natura, an Britannia insula (nam turn ignora- batur), quanta in ea terra, quo numero militum aggredienda, in consilium ferendum sit. Eidem qualitati succedunt facienda ac non facienda, appe- tenda, vitanda ; quae in suasorias quidem maxime cadunt, sed in controversiis quoque sunt frequentia, hac sola differentia, quod illic de futuris hie de factis 3 agitur. Item demonstrativae partis omnia sunt in 1 etiamsi, Christ : etiam similis, MSS. 1 No fragments of the pro Cornelio contain any trace of this. 2 See in. vi. 31, sqq. * See in. iv. 12 sqq. 1 04 BOOK VII. in. 35-iv. 3 impaired, as for example in the case of Cornelius.1 But even although the case may seem to turn on definition, the point for decision is one of quality, since there is no doubt about the definition, and must be assigned to the qualitative basis.2 It is a mere accident that I have come to mention quality at this moment, but in point of fact quality is the matter that comes next in order for discussion. 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. Some- times, 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 delibera- tive 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 he 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 3 oratory involve a qualitative basis. 105 QUINTILIAN hoc statu : factum esse constat, quale sit factum quaeritur. Lis est omnis aut de praemio aut de poena aut de quantitate. Igitur x genus causae aut simplex aut comparativum. Illic, quid aequum, hie, quid aequius aut quid aequissimum sit, excutitur. Cum de poena iudicium est, a parte eius, qui causam dicit, aut defensio est criminis aut imminutio aut excusatio aut, ut quidam putant, deprecatio. 4 Defensio longe potentissima est, qua ipsum factum, quod obiicitur, dicimus honestum esse. Abdicatur aliquis, quod invito patre militant, honores petierit, uxorem duxerit : tuemur, quod fecimus. Hanc partem vocant Hermagorei kclt avrLX-rjipiv, ad intel- lectum id nomen referentes. Latine ad verbum translatam non invenio ; absoluta appellatur. Sed 5 enim de re sola quaestio, iusta sit ea necne. Iustum omne continetur natura vel constitutione ; natura, 6 quod fit secundum cuiusque rei dignitatem. Hinc sunt pietas, fides, continentia et talia. Adiiciunt et id, quod sit par. Verum 2 id non temere intuendum est : nam et vis contra vim et talio nihil habent adversum eum, qui prior fecit, iniusti ; et non, quo- niam res pares sunt, etiam id est iustum, quod antecessit. Ilia utrinque iusta, eadem lex, eadem 1 igitur, early edd. : agitur, A : egrum, G. * sit par. Verum, Regius: sit pfisum, MSS. 1 avrl\r)tyis 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. 106 BOOK VII. iv. 3-6 The facts are admitted, and the question turns on their quality, the dispute being entirely concerned with rewards or penalties or their quantity. The case is therefore of two kinds, simple or compara- tive, the former dealing with what is just, the latter with what is juster, or most just. When the point for decision is the penalty to be inflicted, the duty of the pleader will be to defend, extenuate or excuse the act on which the charge is based, or even, according to some, to plead for mercy. 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 koct avrikq^w by the followers of Hermagoras, that is, defence by objection, the term being used with reference to the purport of the defendant's plea.1 I can find no exact Latin transla- tion 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 107 QUINT1LIAN condicio; ac forsitan ne sint quidem paria, quae ulla parte sunt dissimilia. Constitutio est in lege, more, iudicato, pacto. 7 Alterum est defensionis genus, in quo factum per se hnprobabile adsumptis extrinsecus auxiliis tuemur ; id voeant kcit avriOicnv. Latine hoc quoque non ad verbum transferunt, adsumptiva enim dicitur causa. 8 In quo genere fortissimum est, si crimen causa facti tuemur, qualis est defensio Orestis, Horatii, Milonis. 'JvT€yK\t)fia dicitur, quia omnis nostra defensio con- stat eius accusatione, qui vindicatur : Occisus est, sed 9 latro ; excaecatus, sed raptor. Est et ilia ex causis facti ducta defensio priori contraria, in qua neque factum ipsum per se, ut in absoluta quaestione, de- fenditur neque ex contrario facto, sed ex aliqua utilitate aut rei publicae aut hominum multorum aut etiam ipsius adversarii, nonnunquam et nostra, si modo id erit, quod facere nostra causa fas sit ; quod sub extrario accusatore et legibus agente prodesse 1 i.e. from motives derived from facts lying outside the actual case. ioS BOOK VII. iv. 6-9 two parties must both come under the same law and the same conditions, and it would not perhaps be untrue to say that things can never be spoken of as like if there is any point in which they are dissimilar. Convention, on the other hand, is to be found in laws, customs, legal precedents and agreements. There is another form of defence by which we defend an act in itself indefensible by arguments drawn from without.1 This the Greeks call tear dvTtdeaiv, by opposition. Here again there is no Latin equivalent, since we call it defence by assump- tion. 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 dvreyicX^/xa, or counter-accusation, is emploved when our defence consists entirelv 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 alwavs 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 109 QUINTILIAN nunquam potest, in domesticis disceptationibus po- 10 test. Nam et filiis pater in iudicio abdicationis et maritus uxori, si malae tractationis accusabitur, et patri films, si dementiae causa erit, non inverecunde dicet multum sua interfuisse. In quo tamen in- commoda vitantis melior quam commoda petentis 11 est causa. Quibus similia etiam in vera rerum quaestione tractantur. Nam quae in scbolis abdica- torum, haec in foro exheredatorum a parentibus et bona apud centum viros repetentium ratio est; quae illic malae tractationis, hie rei uxoriae, cum quaeri- tur utrius culpa divortium factum sit ; quae illic 12 dementiae, hie petendi curatoris. Subiacet utilitati etiam ilia defensio, si peius aliquid futurum fuit. Nam in comparatione malorum boni locum obtinet levius : ut si Mancinus foedus Numantinum sic de- fendat, quod periturus, nisi id factum esset, fuerit exercitus. Hoc genus avTiaracrts Graece nominatur, comparativum nostri vocant. 1 3 Haec circa defensionem facti ; quae si neque per no BOOK VII. iv. 9-13 serve our turn if the dispute is of a domestic character. For example, in a suit concerned 10 with the question of disinheritance a father may, without reHecting 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 wife 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 11 also employed in questions that occur in real life. For the scholastic themes concerned with the dis- owning 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 centumviral 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 12 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 annihila- tion. This form of defence is called dvT«rrao-is by the Greeks, while we style it defence by comparison. Such are the methods by which we may 13 in QUINTILIAN se ipsa nee adhibitis auxiliis dabitur, proximum est in alium transferre crimen, si possumus. Ideoque etiam in hos, qui citra scriptum x sunt, status visa est cadere translatio Interdum ergo culpa in hominem relegatur, ut si Gracchus reus foederis Numantini, cuius metu leges populares tulisse in tribunatu vide- 14 retur,2 missum se ab imperatore suo diceret. In- terim derivatur in rem, ut si is, qui testamento quid iussus non fecerit, dicat per leges id fieri non potuisse. Hoc ixeTaaTacnv dicunt. Hinc quoque exclusis excusatio superest. Ea est aut ignorantiae, ut si quis fugitivo stigmata scripserit eoque ingenuo iudicato neget se liberum esse scisse ; aut necessitatis, ut cum miles ad commeatus diem non adfuit et dicit se fluminibus interclusum aut 15 valetudine. Fortuna quoque saepe substituitur cul- pae. Nonnunquam male fecisse nos sed bono animo dicimus. Utriusque rei multa et manifesta exempla sunt ; idcirco non est eorum necessaria expositio. 1 citra scriptum, Christ: etiain scriptum, AG. 8 videretur, Halm : videntur, AG. 1 i t. there are no legal grounds for alleging that the court is not competent to try the case, or the accuser to bring the charge, etc. See in. vi. 53, 78. 112 BOOK VII. iv. 13-15 defend an act. If it is impossible to defend an act either on its merits or with the assistance of arguments from without, the next best course will be to shift the charge, if possible, to another. It is for this reason that the basis of competence has been held to apply even to those who cannot plead the letter of the law in this connexion.1 In some cases, then, the blame will be thrown on a person : for example, Gracchus, when accused of making the treaty with the Numantines (and it was fear of this accusation that seems to have led him to bring forward the democratic laws of his tribune- ship) may plead that he made it as the representa- tive of his commander-in-chief. At times, on the 14 other hand, the blame may be shifted to some thing : for instance, a person who has failed to comply with some testamentary injunction may plead that the laws forbade such compliance. The Greek term for such shifting is fitTaaracrts. If these methods of defence are out of the question, we must take refuge in making excuses. We may plead ignorance. For example, if a man has branded a runaway slave and the latter is subsequently adjudged to be a free man, he may deny that he was cognisant of the truth. Or we may plead necessity ; for instance, if a soldier overstays his leave, he may plead that his return was delayed by floods or ill health. Again, the 15 blame is often cast upon fortune, while sometimes we assert that, although we undoubtedly did wrong, we did so with the best intentions. Instances of these two latter forms of excuse are, however, so numerous and obvious that there is no need for me to cite them here. i*3 QU1NTILIAN Si omnia, quae supra scripta sunt, deerunt, viden- dum, an imminui culpa possit. Hie est ille, qui 16 a quibusdam fieri solet, status quantitatis. Sed ea cum sit aut poenae aut honoris, ex qualitate facti constituitur, eoque nobis sub hoc esse statu videtur sicut eius quoque, quae ad numerum refertur a Graecis. Nam et TrrjXiKOTrjra et TrocrorqTa dicunt, nos utrumque appellatione una complectimur. 17 Ultima est deprecatio, quod genus causae plerique negarunt in iudicium unquam venire. Quin Cicero quoque pro Q. Ligario idem testari videtur, cum dicit, Causas, Caesar, egi tnultas equidem tecum, dum te in foro tenuit ratio honorum tuorum, eerie nunquam hoc modo : Ignoscite, iudices, erravit, lapsus est, non puta- 18 vit, si unquam postkac, et cetera. In senatu vero et apud populum et apud principem et ubicunque iuris dementia est, habet locum deprecatio. In qua plurimum valent ex ipso, qui reus est, haec tria ; vita praecedens, si innocens, si bene meritus, si spes in futurum innocenter victuri et in aliquo usu futuri ; 1 cp. in. vi. 23, 51, 53. 2 iroff6rr\s = quantity with reference to number ; nrj\tK6rifs = quantity with reference to magnitude. 3 Pro Lig. x. 30. 114 BOOK VII. iv. 15-18 If all the above-mentioned resources prove un- available, we must see whether it may not be possible to extenuate the offence. It is here that what some call the quantitative basis1 comes into play. But when quantity is considered in refer- 16 ence to punishment or reward, it is determined by the quality of the act, and therefore in my opinion comes under the qualitative basis, as also does quantity which is used with reference to number by the Greeks, who distinguish between ttoo-ott)? and TTT]\LK6rr)<; - : we, however, have only one name for the two. In the last resort we may plead for mercy, a though 17 most writers deny that this is ever admissible in the courts.3 Indeed Cicero himself seems to support this view in his defence of Quintus Ligarius where he says, " I have pleaded many causes, Caesar, some of them even in association with yourself, so long as your political ambitions prevented you from abandon- ing the bar, but never have I pleaded in words such as these, ' Forgive him, gentlemen, he erred, he made a slip, he did not think that it mattered, he will never do it again,"' and so on. On the other 18 hand, in addressing the senate, the people, the em- peror or any other authority who is in a position to show clemency, such pleas for mercy have a legitimate place. In such cases there are three points based on the circumstances of the accused which are most effective. The first is drawn from his previous life, if he has been blameless in his conduct and deserved well of the state, or if there is good hope that his conduct will be blameless for the future and likely to be of some use to his fellow men ; the second is operative if it appears that he has been sufficiently "5 QUINTILIAN praeterea si vel aliis incommodis vel praesenti peri- culo vel paenitentia videatur satis poenarum dedisse ; extra nobilitas, dignitas, propinqui, amici. 19 In eo tamen qui cognoscit plurimum ponendum, si laus eum misericordis potius quam reprehensio disso- luti consecutura est. Verum et in iudiciis, etiamsi non toto genere causae, tamen ex parte magna hie locus saepe tractatur. Nam et divisio frequens est, et- iamsi fecisset, ignoscendum fuisse idque in causis dubiis saepe praevaluit, et epilogi omnes in eadem 20 fere materia versari solent. Sed nonnunquam etiam rei totius hie summa constituta. An J vero si exhere- datum a se filium pater testatus fuerit elogio, prop- terea quod is meretricem amaverit, non omnis hie erit quaestio, an huic delicto pater debuerit igno- scere et centumviri tribuere debeant veniam ? Sed etiam in formulis, cum poenariae sunt actiones, ita causam partimur, an commissa sit poena, an exigi debeat. Id autem, quod illi viderunt, verum est, reum a iudicibus hoc defensionis modo liberari non posse. 21 De praemiis autem quaeruntur duo: an ullo sit 1 constituta. An, Zumpt : constitutam, O : conBtituta iam A. u6 BOOK VII. iv. 1 8-2 1 punished already on the ground that lie has suffered other misfortunes, or that his present peril is extreme, or that he has repented of his sin ; while thirdly we may base his appeal on his external circumstances, his birth, his rank, his connexions, his friendships. It is, however, on the judge that we shall pin our l'J highest hopes, if the circumstances be such that acquittal will result in giving him a reputation for clemency rather than for regrettable weakness. But even in the ordinary courts appeals for mercy are frequently employed to a large extent, although they will not colour the whole of our pleading. For the following form of division is common : — " Even if he had committed the offence, he would have deserved forgiveness," a plea which has often turned the balance in doubtful cases, while practically all perorations contain such appeals. Sometimes 20 indeed the whole case may rest on such considera- tions. For example, if a father has made an express declaration that he has disinherited his son because he was in love with a woman of the town, will not the whole question turn on the point whether it was the father's duty to pardon such an offence and whether it is the duty of the centumviral court to overlook it ? Nay, even in penal prosecutions governed by strict forms of law we raise two separate questions: first whether the penalty has been incurred, and secondly whether, if so, it ought to be inflicted. Still the view of the authorities to whom I have referred that an accused person cannot be saved from the clutches of the law by this method of defence is perfectly correct. With regard to rewards, there are two questions 21 which confront us : namely, whether the claimant is 117 QUINTILIAN dignus, qui petit, an tanto ; ex duobus, uter dignior ; ex pluribus, quis dignissimus. Quorum tractatus ex ipso meritorum genere ducuntur. Et intuebimur non rem tantum, sive adleganda sive comparanda erit, sed personam quoque ; nam et multum interest, tyrannum iuvenis occiderit an senex, vir an femina, 22 alienus an coniunctus ; et locum multipliciter, in civitate tyrannis assueta an libera semper, in arce an domi ; et quomodo factum sit, ferro an veneno ; et quo tempore, bello an pace, cum depositurus esset earn potestatem an cum aliquid novi sceleris ausurus. Habent in meritis gratiam periculum quoque et 23 difficultas. Similiter liberalitas a quo profecta sit, refert. Nam in paupere gratior quam in divite, dante beneficium quam reddente, patre quam orbo. Item in quam rem dederit et quo tempore et quo animo, id est, num in aliquam spem suam; similiter alia. Et ideo qualitas maxime oratoris recipit operam, quia in utramque partem plurimum 118 BOOK VII. iv. 21-23 deserving of any reward, and, if so, whether he de- serves so great a reward. If there are two claimants, we have to decide which is the more worthy of the two ; if there are a number, who is the most worthy. The treatment of these questions turns on the kind of merit possessed by the claimants. And we must consider not merely the act (whether it has merely to be stated or has to be compared with the acts of others), but the person of the claimant as well. For it makes a great difference whether a tyrannicide be young or old, man or woman, a stranger or a con- nexion. The place may also be discussed in a number 22 of ways : was the city in which the tyrant was killed one inured to tyranny or one which had always been free ? was he killed in the citadel or in his own house ? The means, too, and the time call for con- sideration: was he killed by poison or the sword? was he killed in time of peace or war, when he was intending to lay aside his power or to venture on some fresh crime ? Further, in considering the 23 question of merit, the danger and difficulty of the act will carry great weight, while with regard to liberality it will similarly be of importance to consider the character of the person from whom it proceeds. For liberality is more pleasing in a poor man than in a rich, in one who confers than in one who returns a benefit, in a father than in a childless man. Again, we must consider the immediate object of the gift, the occasion and the intention, that is to say, whether it was given in the hope of subsequent profit ; and so on with a number of similar considerations. The question of quality therefore makes the highest demands on the resources of oratory, since it affords the utmost scope for a display of talent on either side, 119 QUINTILIAN est ingenio loci, nee usquam tantum adfectus valent. 24 Nam coniectura extrinsecus quoque adductas fre- quenter probationes habet et argumenta ex materia suniit ; quale quidque videatur eloquentiae est opus ; hie regnat, hie imperat, hie sola vincit. Huic parti subiungit Verginius causas abdicationis, dementiae, malae tractationis, orbarum nuptias indi- centium. Nam et fere sic accidit, inventique sunt, 25 qui has materias officiorum vocarent. Sed alios quo- que nonnunquam leges hae recipiunt status. Nam et coniectura est aliquando in plerisque horurn, cum se vel non fecisse vel bona mente fecisse contendunt. Cuius generis exempla sunt multa. Et quid sit de- mentia ac mala tractatio, finitur. Nam leges iuris x plerumque quaestiones praecurrere solent, sed 2 ex 26 quibus causae non fiat status. Quod tamen facto defendi non poterit, iure nitetur : et quot et quibus causis abdicare non liceat, et in quae crimina malae tractationis actio non3 detur, et cui accusare de- mentiae non permittatur. 1 leges iuris, Spalding : iuris leges, MSS. 2 sed, Spalding : et, MSS. 8 non, added by Obrecht. 1 The general sense of 25 and 26 is clear. These cases do not always come under the status qualitatis : they not infre- quently come under the status coniecturalis and finitivus. They cannot, however, strictly be said to come under the status legalis, since although the leges of such scholastic themes do involve certain questions of law, these are not such as to con- stitute the status legalist. Still in the last resort such cases may be argued on legal grounds. The text adopted for the 120 BOOK VII. iv. 23-26 while there is no topic in which the emotional appeal is so effective. For conjecture has often to introduce 24 proofs from without and uses arguments drawn from the actual subject matter, whereas the real task of eloquence is to demonstrate qualify : there lies its kingdom, there its power, and there its unique victory. Verginius includes under quality cases concerned with disinheritance, lunacy, cruelty to a wife, and claims of female orphans to marry relatives. The questions thus involved are, it is true, frequently ques- tions of quality, while some writers style them ques- tions of moral obligation. But the laws governing 25 these cases sometimes admit of other bases. For example, conjecture is involved in quite a number of such cases, as when the accused urges either that he did not commit the act or, if he did, acted with the best intentions. I could quote many examples of this kind. Again, it is definition which tells us what precisely is meant by lunacy or cruelty to a wife.1 For as a rule the laws cited in such themes involve certain legal questions, though not to such an extent as to determine the basis of the case. But this not- 26 withstanding, if the actual fact cannot be defended, we may in the last resort base our defence on legal grounds, in which case we shall consider how many and what cases there are in which a father may not disinherit his son, what charges fail to justify an action for cruelty, and under what circumstances a son is not allowed to accuse his father of lunacy. last sentence of 25 is that which involves the least change, but it is highly obscure and the corruption may well lie deeper still. For the whole question of bases, which is highly technical, see III, vi. QU1NTILIAN 27 Abdicationum formae sunt duae, altera criminis perfecti, ut si abdicetur raptor, adulter, altera velut pendentis et adhuc in condicione positi, quales sunt, in quibus abdicatur filius, quia non pareat patri. Ilia semper asperam abdicantis actionem habet ; immuta- bile est enim, quod factum est ; haec ex parte blandam et suadenti similem ; mavult enim pater1 non abdicare ; at profiliis in utroque genere summis- 28 sam et ad satisfaciendum compositam. A quo dissen- suros scio, qui libenter patres figura laedunt ; quod non ausim dicere nunquam esse faciendum, potest enim materia incidere, quae hoc exigat ; certe vitandum est, quotiens aliter agi potest. Sed de figuris alio 29 libro tractabimus. Non dissimiles autem abdica- tionum actionibus sunt malae tractationis actiones ; nam et ipsae habent eandem in accusationibus mo- derationem. Dementiae quoque iudicia aut propter id, quod factum est, aut propter id quod adhuc fieri 30 vel non fieri potest instituuntur. Et actor in eo, quod factum est, liberum habet impetum, sic tamen ut factum accuset, ipsius patris tanquam valetudine lapsi misereatur ; in eo vero, cuius libera mutatio est, 1 pater non abdicare, Spalding •: pater abdicare, G. : quam abdicare, A. : pater corrigere quam abdicare, cod. Monac and early edd. 1 Literally conditional. The sense, however, is that the dis- inheritance is only conditional on the disobedience being continued. 2 Book IX. See especially IX. ii. 65 sqq. BOOK VII. iv. 27-30 Disinheritance may be of two kinds. In the first 27 case it is for a completed crime : for example, the son who is disinherited may be a ravisher or an adulterer: in the second case it is for a crime which is still in- complete and terminable * ; an instance of this will be the case where the son is disinherited because of disobedience to his father. The first form of disin- heritance always demands a certain harshness when the father pleads his case, since the act is irrevocable, whereas in the latter his pleading will be of a kindly and almost persuasive nature, since he would prefer not to disinherit him. On the other hand, the pleading of the sons should in both cases be of a subdued character and couched in a conciliatory tone. I know that those who delight in making 28 covert attacks upon the father under the disguise of some figure of speech will disagree with me : and I would not deny that their procedure may sometimes be justifiable, since the theme may con- ceivably be such as to demand it ; but it is certainly to be avoided wherever possible. However, I shall deal with the whole question of figures in a later book.2 The treatment of the theme of cruelty to a 29 wife is not unlike that of the theme of disinherit- ance ; for both demand a certain moderation on the part of the accuser. Cases concerned with lunacy arise either out of what has been done or out of something which may or may not be done in the future. In the former case the pleader is free to 30 attack as he will, but must none the less do so in such a manner that, while denouncing the act, he will yet express pity for the father on the ground that he has erred by reason of his infirmity. On the other hand, in the latter case, where the act has not "3 QUINTILIAN diu roget et suadeat et novissime dementiam rationi queratur obstare, non mores : quos quanto magis in praeteritum laudaverit, tanto facilius probabit morbo 31 esse mutatos. Reus, quotiens causa patietur, debebit esse in defensione moderatus, quia fere ira et conci- tatio furori sunt similia. Omnibus his commune est, quod rei non semper defensione facti, sed excusatione ac venia frequenter utuntur. Est enim domestica disceptatio, in qua et semel peccasse et per errorem et levius, quam obiiciatur, absolutioni nonnunquam sufficit. 32 Sed alia quoque multa controversiarum genera in qualitatem cadunt. Iniuriarum ; quanquam enim reus aliquando fecisse negat, plerumque tamen haec 33 actio facto atque animo continetur. De accusatore constituendo, quae iudicia divinationes vocantur ; in quo genere Cicero quidern, qui mandantibus sociis Verrem deferebat,1 hac usus est divisione, spec- tandum a quo maxime agi. velint ii quorum de ultione quaeritur, a quo minime velit is qui accusatur. 34 Frequentissimae tamen hae sunt quaestiones, uter 1 deferebat, Halm : defendebant, AG. : accusabat contra eos qui eum defeudebant, 2nd hand of A and early edd. 124 BOOK VII. iv. 30-34 yet taken place and there is nothing to prevent the father changing his purpose, he must hegin by a prolonged attempt to induce him to change his mind, and then, and only then, complain that it is madness and not depravity of character that prevents him from listening to the voice of reason ; and the more he praises his past character, the easier will it be to prove the change which it has undergone owing to the inroads of the disease. The accused, wherever 31 possible, must assume a temperate tone in his de- fence, for the reason that as a rule anger and excite- ment are near akin to madness. All these cases have this much in common, that the accused does not always defend his act, but often pleads excuse and asks for pardon. For these are domestic quarrels, in which the fact that the offence is an isolated case, due to error and of a less serious character than alleged, will sometimes suffice to secure an acquittal. There are, however, a number of other contro- 32 versial themes involving quality, as, for example, cases of assault. In these, although at times the accused denies that he committed the assault, the pleading as a rule is concerned with fact and in- tention. Then there are cases concerned with the 33 appointment of a prosecutor, which are known as divinations. In this connexion Cicero, who was in- dicting Verres on the instruction of our Sicilian allies, adopts the following division — to the effect that the main point for consideration is, by whom those the redress of whose wrongs forms the subject of the trial would prefer to be represented, and by whom the accused would least desire them to be repre- sented. But in the great majority of cases the 34 questions raised are, which claimant has the strongest "5 QUINTILIAN maiores causas habeat, uter plus industriae aut virium sit adlaturus ad accusaudum, uter id fide 35 meliore facturus. Tutelae praeterea ; in quo iudicio solet quaeri, an alia de re quam de calculis cognosci oporteat, an fidem praestare debeat tantum, non etiam consilium et eventum. Cui simile est male gestae procurations, quae in foro negotiorum ges- 36 torum ; nam et mandati actio est. Praeter haec finguntur in scholis et inscripti1 maleficii, in quibus aut hoc quaeritur, an inscriptum x sit aut hoc, an maleficium sit, raro utrumque. Male gestae lega- tionis apud Graecos et veris causis frequens, ubi iuris loco quaeri solet, an omnino aliter agere quam man- datum sit liceat, et quousque sit legatus, quoniam aliae in nuntiando, aliae in renuntiando 2 sunt, ut in Heio, qui testimonium in Verrem dixerat post perlatam 37 legationem. PI urimum tamen est in eo, quale sit fac- tum. Rei publicae laesae : hinc moventur quidem illae 1 inscripti . . . inscriptum, Caperonnier : scripti . . . facriptum, MSS. 2 aliae in nuntiando, added by Spalding. 126 BOOK VII. iv. 34-37 motives for undertaking the role of accuser, which is likely to bring the greatest energy or talent to the task, and which is likely to press the charge with the greatest sincerity. Next we may take cases 35 concerned with guardianship, in which it is usual to enquire whether it is necessary to investigate anvthing save the accounts, and whether anything can be demanded of the guardian except the honest execution of his trust ; his sagacity and the success of his administration being beside the mark. Cases of fraud on the part of an agent, which are stvled cases of conduct of business when they occur in the actual courts, are of a similar nature, since they also are concerned with the administration of a trust. In addition to these we have the fictitious 36 cases of the schools which deal with crimes not covered by the law, where the question is as a rule either whether the crime is really not covered by the law or whether it is a crime, though on rare occasions both questions are raised. Cases of misconduct on the part of an ambassador are of frequent occurrence among the Greeks, even in actual life : in these the legal question is raised whether it is lawful to deviate at all from one's instructions and for how long the accused was technically an ambassador, since in some cases the ambassador's duty is to convey a communi- cation to a foreign power and in others to bring one back. Take for example the case of Heius, who gave evidence against Verres after performing his duties as ambassador. But in such cases the most important question turns on the nature of the deed complained of. Next come cases of action contrary to the interests 37 of the state. In these we meet with legal quibbles as to what is the meaning of " action contrary to the 127 QUINT1LIAN iuris cavillationes, quid sit rem publicam laedere, et, laeserit an non profuerit, et, ab ipso an propter ipsum laesa sit : in facto tarnen plurimum est. Ingrati quoque, in quo genere quaeritur, an is cum quo agitur acceperit beneficium. Quod raro negan- 38 dum est ; ingratus est enim qui negat. Quantum acceperit, an reddiderit, an protinus qui non reddidit ingratus sit, an potuerit reddere, an id, quod exigebatur, debuerit, quo animo sit. Simpli- ciores illae iniusti repudii, sub qua lege controversiae illud proprium habent, quod a parte accusantis 39 defensio est, a l defendentis accusatio. Praeterea, cum quis rationem mortis in senatu reddit, ubi una quaestio est iuris, an is demum prohibendus sit, qui mori vult ut se legum actionibus subtrahat ; cetera qualitatis. Finguntur et testamenta, in quibus de sola qualitate 2 quaeratur, ut in controversia, quam supra exposui, in qua de parte patrimonii quarta, quam pater dignissimo ex filiis reliquerat, contendunt philosophus, medicus, orator. Quod idem accidit, si orbae nuptias indicant pares gradu, et si inter 40 propinquos de idoneo quaeratur. Sed mihi nee omnes persequi materias in animo est, fingi enim 1 a, Spakling : et, MSS. * qualitate, added by Christ. 1 i. e. the divorced wife defends her character, while the husband attacks her character. 2 Based on a law of Massilia, where the state provided poison for the would-be suicide, provided he could justify himself before the senate. 3 vii. i. 38. 128 BOOK VII. iv. 37-40 interests of the state," and whether the action of the accused was injurious or profitable, or whether the interests of the state suffered at his hands or merely on his account : but the most important question is that of fact. There are also cases of ingratitude ; in these we raise the question whether the accused has really received any kindness. It is only rarely that the fact can be denied, as denial is in itself a sign of ingratitude. But there are the further questions as to the extent of the kindness and whether it has been repaid. If it has not been 38 repaid, does this necessarily involve ingratitude? Was it in his power to repay? Did he really owe the return which was demanded of him? What is his intention? Somewhat simpler are cases of unjust divorce, a form of controversy which has this peculiarity, that the accuser defends and the de- fendant accuses.1 Further there are cases where 39 a senator sets forth to the senate the reasons which determine him to commit suicide,2 in which there is one legal question, namely, whether a man who desires to kill himself in order to escape the clutches of the law ought to be prevented from so doing, while the remaining questions are all concerned with quality. There are also fictitious cases concerned with wills, in which the only question raised is one of quality, as, for instance, in the controversial theme quoted above,8 where the philosopher, physician and orator all claim the fourth share which their father had left to the most worthy of his sons. The same is true of cases where suitors of equal rank claim the hand of an orphan and the question confronting her relatives is which is the most suitable. I do not, 40 however, intend to discuss every possible theme, 129 VOL. 111. F QUINTILIAN adhuc possunt ; nee omnes earum quaestiones, quia positionibus mutantur. Hoc tantum admiror Flavum, cuius apud me summa est auctoritas, cum artem scholae tantum componeret, tam anguste materiam qualitatis terminasse. 41 Quantitas quoque, ut dixi, etiamsi non semper, plerumque tamen eidem subiacet, seu modi est seu numeri. Sed modus aliquando constat aestimatione facti, quanta sit culpa, quantumve beneficium, ali- quando iure, cum id in controversiam venit, qua quis 42 lege puniendus vel honorandus sit : stuprator decern milia dare debeat, quae poena huic crimini constituta est, an, quia se stupratus suspendit, capite puniri tanquam causa mortis. Quo in genere falluntur, qui ita dicunt, tanquam inter duas leges quaeratur : nam de decern milibus nulla controversia est, quae non 43 petuntur. Iudicium redditur, an reus causa sit mor tis. In coniecturam quoque eadem species cadit, cum, perpetuo an quinquennali sit exilio multandus, in controversiam venerit ; nam an prudens caedem 44 commiserit quaeritur. Ilia quoque, quae ex numero 1 i. e. Verginius mentioned in § 24. § 16. * cp. iv. ii. G9. 13° BOOK VII. iv. 40-44 since fresh ones can always be invented, nor yet to deal with all the questions to which they give rise, since these vary with circumstances. But I cannot help expressing my astonishment that Flavus,1 for whose authority I have the highest respect, restricted the range of quality to such an extent in the text-book which he composed for the special guidance of the schools. Quantity also, as I have already stated,2 falls as a 41 rule, though not always, under the head of quality, whether it is concerned -with measure or number. Measure, however, sometimes consists in the valuation of a deed with a view to determining the amount of guilt or the amount of benefit involved, while, on the other hand, it sometimes turns on a point of law, when the dispute is under what law a man is to be punished or rewarded. For example is a 42 ravisher to pay 10,000 sesterces3 because that is the penalty appointed by law, or is he liable to capital punishment as a murderer because his victim hanged himself? In such cases those who plead as if there were a question between two laws, are wrong : for there is no dispute about the fine of 10,000, since it is not claimed by the prosecution. The 43 point on which judgment has to be delivered is whether the accused is guilty of causing his victim's death. The same type of case will also bring conjecture into plav, when, for example, the question in dispute is whether the accused shall be punished with banishment for life or for five years. For the question then is whether he caused his death willingly or not. Again, there are questions con- 44 cerned with numerical quantity which turn on a point of law, such as the questions whether thirty 131 QUINTILIAN ducitur, pendet ex iure, an Thrasybulo triginta praemia debeantur, et, cum duo fures pecuniam abstulerint, separatim quadruplum quisque an du- plum debeat. Sed hie quoque factum aestimatur et, tamen ius ipsum pendet ex qualitate. V. Qui neque fecisse se negabit neque aliud esse quod fecerit dicet neque factum defendet, necesse est in suo iure consistat, in quo plerumque actionis 2 est quaestio. Ea non semper, ut quidam putaverunt, iudicium antecedit, qualia sunt praetorum curiosa consilia, cum de iure accusatoris ambigitur ; sed in ipsis iudiciis frequentissime versatur. Est autem 1 duplex eius disceptationis condicio, quod aut intentio aut praescriptio habet controversiam. Ac fuerunt, qui praescriptionis statum facerent, tanquam ea non iisdem omnibus quibus ceterae leges quaestionibus 3 contineretur. Cum ex praescriptione lis pendet, de ipsa re quaeri non est necesse. Ignominioso Alius praescribit : de eo solo a iudicatio est, an liceat. Quotiens tamen poterimus, efficiendum est, ut de re quoque iudex bene sentiat ; sic enim iuri nostro 1 autem, Spalding: enim, M SS. 1 solo, Regius: loco, O: colo, A. 1 i.e. for his overthrow of the thirty tyrants ; cp. in. vi. 26. 2 cp. in. vi. 72. 132 BOOK VII. iv. 44-v. 3 rewards are due to Thrasybulus,1 or whether, when two thieves have stolen a sum of money, they are each to be required to refund fourfold or twofold. But in these cases, too, valuation of the act is necessary, and yet the point of law also turns on quality. V. He who neither denies nor defends his act nor asserts that it was of a different nature from that alleged, must take his stand on some point of law that tells in his favour, a form of defence which generally turns on the legality of the action brought against him. This question is not, however, as some 2 have held, always raised before the commencement of the trial, like the elaborate deliberations of the praetor when there is a doubt as to whether the prosecutor has any legal standing, but frequently comes up during the course of the actual trial. Such discussions fall into two classes, according as the point in dispute arises from an argument advanced by the prosecution or from some prescription 2 (or demurrer) put forward by the defence. There have indeed been some writers who have held that there is a special prescriptive basis; but prescription is covered by precisely the same questions that cover all other laws. When the dispute turns on prescription, there 3 is no need to enquire into the facts of the case itself. For example, a son puts forward a demurrer against his father on the ground that his father has forfeited his civil rights. The only point which has to be decided is whether the demurrer can stand. Still, wherever possible, we should attempt to create a favourable impression in the judge as to the facts of the case as well, since, if this be done, he will be all the more disposed to give an indulgent hearing 133 QUINTILIAN libentius indulgebit, ut in sponsionibus, quae ex interdictis fiunt, etiamsinon proprietatis est quaestio sed tantum possessionis, tamen non solum possedisse nos, sed etiain nostrum possedisse docere oportebit. 4 Sed frequentius etiam quaeritur de intentione. Vir fortis optet, quod volet. Nego illi dandum, quidquid optaverit : non habeo praescriptionem, sed tamen voluntate contra verba praescriptionis modo utor. In utroque autem genere status iidem sunt. 5 Porro lex omnis aut tribuit aut adimit aut punit aut iubet aut v'etat aut permittit. Litem habet aut propter se ipsam aut propter alteram, quaestionem 6 aut in scripto aut in voluntate. Scriptum aut apertum est aut obscurum aut ambiguum. Quod de legibus dico, idem accipi volo de testamentis, pactis, stipulationibus, omni denique scripto, idem de voce. Et quoniam quattuor eius generis quaestiones vel status facimus, singulos percurram. VI. Scripti et voluntatis frequentissima inter con- sultos quaestio est, et pars magna controversi iuris hinc pendet ; quo minus id accidere in scholis mirum est, ubi etiam ex industria fingitur. Eius genus unum est, in quo et de scripto et de voluntate 1 sponsio (= wager) was a form of suit in which the litigant promised to pay a sum of money if he lost his case. The interdict was an order issued by the praetor commanding or prohibiting certain action. It occurred chiefly in disputes about property. 1 i.e. an imaginary law of the schools of rhetoric. '34 BOOK VII. v. 3-V1. i to our point of law j for example, in actions taking the form of a wager and arising out of interdicts,1 even though the question is concerned solely with actual possession, the question as to the right to possession not heing raised, it will be desirable to prove not merely that the property was actually in our possession, but that it was ours to possess. On 4 the other hand, the question more frequently turns on intention. Take the law 2 " Let a hero choose what reward he will." I deny that he is entitled to receive whatever he chooses. I cannot put forward any formal demurrer, but none the less I use the inten- tion as against the letter of the law just as I should use a demurrer. In both cases the basis is the same. Moreover every law either gives or takes away, 5 punishes or commands, forbids or permits, and involves a dispute either on its own account or on account of another law, while the question whfch it involves will turn either on the letter or the intention. The letter is either clear or obscure or ambiguous. 6 And what I say with reference to laws will apply equally to wills, agreements, contracts and every form of document ; nay, it will apply even to verbal agreements. And since I have classified such cases under four questions or bases, I will deal with each in turn. VI. Lawyers frequently raise the question of the letter and the intention of the law, in fact a large proportion of legal disputes turn on these points. We need not therefore be surprised that such questions occur in the schools as well, where they are often invented with this special purpose. One form of this kind of question is found in cases where the enquiry turns both on the letter and the spirit 135 QUINTILIAN 2 quaeritur. Id turn accidit, cum est in lege aliqua obscuritas. In ea aut uterque suam interpretationem confirmat, adversarii subvertit : ut hie, Fur quad- ruplum solvai. Duo surripuerunt pariler decern milia ; petuntur ab ulroque quadragena ; Mi postulant, ut vicena conferant ; nam et actor dicit hoc esse quadruplum quod petat, et rei hoc quod offerant ; voluntas quoque 3 utrinque defenditur. Aut, cum de altero intellectu certum est, de altero dubium : Ex meretrice natus tie conlionetur. Quae Jtlium hahebat, proxtare coepit : prohibetur adolescens contione. Nam de eius filio, quae ante partum meretrix fuit, certum est : an eadem huius causa sit, dubium est, quia ex hac natus est, 4 antequam meretrix esset.1 Solet et illud quaeri, quo referatur, quod scriptum est, Bis de eadem re ne sit actio ; id est, hoc bis ad actorem an ad actionem ? Haec ex iure obscuro. Alterum genus est ex manifesto ; quod qui solum viderunt, hunc statum plani et voluntatis appellarunt. In hoc altera pars scripto nititur, altera voluntate. 1 antequam . • . esset, Regius i et haec . . . e»t, MSS. 136 BOOK VII. vi. 1-4 of a law. Such questions arise when the law presents some obscurity. Under these circumstances both parties will seek to establish their own interpretation of the passage and to overthrow that advanced by their opponent. Take for example the following case. " A thief shall refund four times the amount of his theft. Two thieves have jointly stolen 10,000 sesterces. 40,000 are claimed from each. They claim that they are liable only to pay 20,000 each." The accuser will urge that the sum which he claims is fourfold the amount stolen ; the accused will urge that the sum which they offer to pay is fourfold. The intention of the law will be pleaded by both parties. On the other hand, the dispute may turn on a passage of the law which is clear in one sense and doubtful in another. " The son of a harlot shall not address the people. A woman who had a son became a prostitute. The youth is forbidden to address the people." Here there is no doubt about the son of one who was a prostitute before his birth, but it is doubtful whether the law applies to the case of one born before his mother became a prostitute. Another question which is not infrequently raised is as to the interpretation of the law forbidding an action to be brought twice on the same dispute, the problem being whether the word twice refers to the prosecutor or the prosecution. Such are the points arising out of the obscurity of the law. A second form of question turns on some passage where the meaning is clear. Those who have given exclusive attention to this class of question call it the basis concerned with the obvious expression of the law and its intention. In such circumstances one party will rest their case on the letter, the other 137 QUINTILIAN 5 Sed contra scriptum tribus generibus occurritur. Unum est, in quo ipso patet, semper id servari non posse : Liberi parentes alant aid vinciantur; non enim adligabitur infans. Hie erit ad alia transitus, et divisio, num quisquis non aluerit, num hie propter 6 hoc. Secundum * tale genus controversiarum, in quo nullum argumentum est, quod ex lege ipsa peti possit, sed de eo tantum, de quo lis est, quaerendum est.2 Peregtinus, si murum ascendent, capite puniatur. Cum hostes murum ascendissent, peregrinus eos depulit ; 7 petitur ad supplicium. Non erunt hie separatae quaestiones, an quisquis, an hie, quia nullum potest adferri argumentum contra scriptum vehementius eo quod in lite est ; sed hoc tantum, an ne servandae quidem civitatis causa. Ergo aequitate et voluntate pugnandum. Fieri tamen potest, ut ex aliis legibus exempla ducamus, per quae appareat semper stari scripto non posse, ut Cicero pro Caecina fecit. 8 Tertium, cum in ipsis verbis legis reperimus aliquid, per quod probemus aliud legumlatorem voluisse, ut 1 Secundum, Christ : quidam, MSS. * est, Halm : sit, MSS. 138 BOOK VII. vi. 5-8 on the intention of the law. There are three different methods in which we may combat the letter. The first comes into play where it is clear that it is impossible always to observe the letter of the law. " Children shall support their parents under penalty of imprisonment." It is clear, in the first place, that this cannot apply to an infant. At this point we shall turn to other possible exceptions and distinguish as follows. " Does this apply to everyone who refuses to support his parent ? Has this particular individual incurred the penalty by this particular act?" The second arises in scholastic themes where no argu- ment can be drawn from the particular law, but the question is concerned solely with the subject of the dispute. * A foreigner who goes up on to the wall shall be liable to capital punishment. The enemy had scaled the wall and were driven back by a foreigner. His punishment is demanded." In this case we shall not have two separate questions, namely, whether every foreigner who goes up on the wall is liable to the penalty, and whether this particular foreigner is liable, since no more forcible argument can be brought against the application of the letter of the law than the fact in dispute, but the only question to be raised will be whether a foreigner may not go on to the wall even for the purpose of saving the city. Therefore we shall rest our case on equity and the intention of the law. It is, however, sometimes possible to draw examples from other laws to show that we cannot always stand by the letter, as Cicero did in his defence of Caecina. The third method becomes operative when we find something in the actual words of the law which enables us to prove that the intention of the legislator was different. 139 QUINTILIAN in hac controversia : Qui node cum ferro deprehensus Jtierit, adligetur. Cum anulo ferreo inventum magi- stratus adligavit. Hie quia est verbum in lege depre- hensus, satis etiam signification videtur, non contineri lege nisi noxium ferrum. 9 Sed ut qui voluntate nitetur scriptum, quotiens poterit, infirmare debebit, ita, qui scriptum tuebitur, adiuvare se etiam voluntate temptabit. In testa- mentis et ilia aecidunt, ut voluntas manifesta sit, scriptum nihil sit : ut in iudicio Curiano, in quo nota 10 L. Crassi et Scaevolae fuit contentio. Substitutus heres erat, si postumus ante tutelae annos de- cessisset. Non est natus. Propinqui bona sibi vindicabant. Quis dubitaret, quin ea voluntas fuisset testantis, ut is non nato filio heres esset, qui mortuo? 1 1 sed hoc non scripserat. Id quoque, quod huic con- trarium est, accidit nuper, ut esset scriptum, quod appareret scriptorem noluisse. Qui sestertium nummum quinque milia legaverat, cum emendaret testamentum, sublatis sestertiis minimis, argenti pondo posuit, quinque milia manserunt. Apparuit tamen, quinque pondo dari voluisse, quia ille in argento legati 12 modus et inauditus erat et incredibilis. Sub hoc statu generales sunt quaestiones, scripto an voluntate 1 About 384 sesterces go to the pound of silver. 140 BOOK VII. vi. 8-12 The following theme will provide an example. "Any- one who is caught at night with steel in his hands shall be thrown into prison. A man is found wear- ing a steel ring, and is imprisoned by the magistrate." In this case the use of the word caught is sufficient proof that the word steel was only intended by the law in the sense of a weapon of offence. But just as the advocate who rests his case on the 9 intention of the law must wherever possible impugn the letter of the law, so he who defends the letter of the law must also seek to gain support from the intention. Again, in cases concerned with wills it sometimes happens that the intention of the testator is clear, though it has not been expressed in writing : an example of this occurs in the trial of Curius, which gave rise to the well-known argument between Lucius Crassus and Scaevola. A second heir had 10 been appointed in the event of a posthumous son dying while a minor. No posthumous son was born. The next of kin claimed the property. Who could doubt that the intention of the testator was that the same man should inherit in the event of the son not being born who would have inherited in the event of his death ? But he had not written this in his will. Again, the opposite case, that is to say, 11 when what is written is obviously contrary to the intention of the writer, occurred quite recently. A man who had made a bequest of 5000 sesterces, on altering his will erased the word sesterces and inserted pounds of silver.1 But it was clear that he had meant not 5000 but 5 pounds of silver, because the weight of silver mentioned in the bequest was unparalleled and incredible. The same basis includes such general 12 questions as to whether we should stand by the 141 QUINTILIAN standum sit, quae fuerit scribentis voluntas ; trac- tatus omnes qualitatis aut coniecturae, de quibus satis dictum arbitror. VII. Proximum est de legibus contrariis dicere, quia inter omnes artium scriptores constitit, in antinomia duos esse scripti et voluntatis status ; neque immerito ; quia, cum lex legi obstat, et l utrinque contra scriptum dicitur et quaestio est de voluntate; in utraque id ambigitur, an utique ilia 2 lege sit utendum. Omnibus autem manifestum est nunquam esse legem legi contrariam iure ipso, quia, si diversum ius esset, alterum altero abrogaretur, sed eas casu collidi et eventu. 3 Colliduntur autem aut pares inter se, ut si optio tyrannicidae et viri fortis comparentur, utrique data quod velit petendi potestate ; hie meritorum, tem- poris, praemii collatio est ; aut secum ipsae, ut duorum fortium, duorum tyrannicidarum, duarum raptarum, in quibus non potest esse alia quaestio, quam temporis, utra prior sit, aut qualitatis, utra iustior sit petitio. Diversae quoque leges confligunt 4 aut similes aut impares.2 Diversae, quibus etiam 1 obstat et, Halm : obstet, MSS. * aut impares. Diversae, Christ : ut duae, AG. 1 See in. vi. 46. 2 Both claiming the reward allotted by the law. 3 Two women, both dishonoured by one man, put in different claims, both of which are provided for as alternatives in the same law. A. demands the ravisher's death, B. demands his hand in marriage. 142 BOOK VII. vi. 12-vn. 4 letter or the intention of the document, and what was the purpose of the writer, while for the treat- ment of such questions we must have recourse to quality or conjecture, with which I think I have dealt in sufficient detail. VII. The next subject which comes up for dis- cussion is that of contrary laws.1 For all writers of text-books are agreed that in such cases there are two bases involving the letter and the intention of the law respectively. This view is justified by the fact that, when one law contradicts another, both parties attack the letter and raise the question of intention, while the point in dispute, as regards each law, is whether we should be guided by it at all. But it is clear to everybody that one law cannot contradict another in principle (since if there were two different principles, one law would cancel the other), and that the laws in question are brought into collision purely by the accidents of chance. When two laws clash, they may be of a similar nature, as for instance if we have to compare two cases in which a tyrannicide and a brave man are given the choice of their reward, both being granted the privilege of choosing whatever they desire. In such a case we compare the deserts of the claimants, the occasions of the respective acts and the nature of the rewards claimed. Or the same law may be in conflict with itself, as in the case where we have two brave men,2 two tyrannicides 2 or two ravished women,3 when the question must turn either on time (that is, whose claim has priority) or on quality (that is, whose claim is the more just). Again, we may have a conflict between diverse, similar or dissimilar laws. Diverse laws are those against which arguments *43 QUINTILIAN citra adversam legem contradici possit, ut in hac controversia : Magistraius ab arce ne discedat; vir fortis optei quod volet : impunitalem magistrates petit.1 Vel alia nulla obstante quaeri potest, vir fortis an, quidquid optarit, accipere debeat. Et in legem2 magistratus multa dicentur, quibus scriptum ex- pugnatur; si incendium in arce fuerit, si in hostes 6 decurrendum. Similes, contra quas nihil opponi potest nisi lex altera : Tyrannicidae imago in gymnasio ponatur ; contra, Mulieris imago in gymnasio3 ne ponatur. Mulier tyrannum occidit. Nam neque mu- lieris imago ullo alio casu poni potest nee tyrannici- 6 dae ullo alio casu summoveri. Impares sunt, cum alteri multa opponi possunt, alteri nihil nisi quod in lite est : ut cum vir fortis impunitatem desertoris petit. Nam contra legem viri fortis, ut supra x vir fortis . . . petit, added by Christ : it is possible that no insertion is necessary, the heading Magistratus . . . discedat being considered by Q. as sufficient indication of a familiar theme. * legem, added by Halm. 3 ponatur ; contra . . . gymnasio, added by Regiut. 144 BOOK VII. vii. 4-6 may be brought without reference to any contra. dictory law. The following theme will provide an example. "A magistrate shall not quit the citadel. One who has rendered heroic service to his country may choose what reward he pleases. A magistrate who left his post and saved his country, demands an amnesty for his conduct." In this case, even though there be no other law covering the case, we may raise the question whether a hero ought to be granted anything he chooses to claim. Again, many conclusive arguments may be brought against the letter of the law restricting the movements of the magistrate : for example, a fire may have broken out in the citadel, or a sally against the enemy may have been necessary. Laws are styled similar when no- thing can be opposed to one except the other. "Tyrannicides shall have their statues set up in the gymnasium. A statue of a woman shall not be set up in the gymnasium. A woman killed a tyrant." Here are two conflicting laws : for a woman's statue cannot under any other circumstances be erected in the gymnasium, while there is no other circumstance which can bar the erection of the statue of a tyrannicide in the gymnasium. Laws are styled dissimilar when many arguments can be urged against one, while the only point which can be urged against the other is the actual subject of dispute. An example is provided by the case in which a brave man demands the pardon of a deserter as his reward. For there are many arguments, as I have shown above, which can be urged against the law permitting a hero to choose whatever reward he will, but the letter of the law dealing with the crime of desertion cannot be overthrown under any circum- 145 QUINTILIAN ostendi, nmlta dicuntur ; adversus desertores scripta non potest nisi optione subverti. 7 Item aut confessum ex utraque parte ius est aut dubium. Si confessum est, haec fere quaeruntur, utra lex potentior ; ad deos pertineat an ad homines, rem publicam an privates, de honore an de poena, de magnis rebus an de parvis ; permittat an vetet an 8 imperet. Solet tractari et, utra sit antiquior, sed velut potentissimum, utra minus perdat ; ut in de- sertore et viro forti, quod illo non occiso lex tota tollatur, occiso, sit reliqua viro forti alia optio. Plurimum tamen est in hoc, utrum fieri sit melius atque aequius ; de quo nihil praecipi nisi proposita 9 materia potest. Si dubium, aut alteri aut invicem utrique de iure fit controversia, ut in re tali : Palri in /ilium, patrono in libertum mantis iniectio sit ; liberty heredcm sequantur. Liberti jilium quidam fecit heredem : invicem pelitur mantis iniectio ; et pater dicit sibi ius in filium esse, et patronus x negat ius patris illi fuisse, quia ipse in manu patroni fuerit. 1 dicit . . . et patrouus, added by Halm. I46 BOOK VII. vii. 6-9 stances save the choice of rewards to which I have just referred. Again, the point of law is either admitted by 7 both parties or disputed. If it be admitted, the questions which are raised will as a rule be such as the following. Which of the two laws is the most stringent? Does it concern gods or men, the state or private individuals, reward or punishment, great things or small ? Does it permit, forbid or command ? Another common question is which of 8 the two laws is the oldest ; but the most important question is which of the two laws will suffer less by its contravention, as for example in the case of the hero and the deserter just mentioned, in which case, if the deserter is not put to death, the whole law is ignored, whereas, if he be put to death, the hero will still have another choice left open to him. It is, however, of the utmost importance to consider which course is best from the point of view of morality and justice, a problem for the solution of which no general rules can be laid down, as it will depend on the special circumstances of the case. If, 9 on the other hand, the point of law is disputed, either one party or both in turn will argue the point. Take the following case as an example. "A father shall be empowered to arrest his son, and a patron to arrest his freedman. Freedmen shall be transferred to their patron's heir. A certain man appointed the son of a freedman as his heir. The son of the freed- man and the freedman himself both claim the right to arrest the other." Here the father claims his right over the son, while the son, in virtue of his new position as patron, denies that his father possessed the rights of a father, because he was in the power of his patron. 147 QUINTILIAN 10 Duplices leges sicut duae colliduntur: ut Nothus ante legitimum natus, legilimus sit; post legitimum, tantum civis. Quod de legibus, idem de senatus- consultis dictum ; quae si aut inter se pugnent aut obstent legibus, non tamen aliud sit eius status nomen. VIII. Syllogismus habet aliquid simile scripto et voluntatis quia semper pars in eo altera scripto nititur, sed hoc interest, quod illic dicitur contra scriptum, hie supra scriptum ; illic qui verba defendit, hoc agit ut fiat utique quod scriptum est; hie, ne aliud quam scriptum est. Ei nonnulla etiam cum finitione coniunctio : nam saepe, si finitio 2 infirma est, in syllogismum delabitur. Sit enim lex : Venefica capile puniatur. Saepe se verberanti marito uxor amatorium 1 dedit ; eundem repudiavit ; per propinquos rogata ut rediret non est reversa ; suspendit se maritus. Mulier veneficii rea est. Fortissima est actio dicentis amatorium venenum esse. Id erit finitio ; quod si parum valebit, fiet syllogismus, ad quem, velut 1 se verberanti marito uxor amatorium, Victor (p. 373, II.): severantia moritorium, 6 : se . . . rantis maritorium, A. 1 See in. vi. 96. * See in. vi. 43 sqq. 148 BOOK VII. vii. io-vm. 2 Laws containing two provisions may conflict with 10 themselves in exactly the same way as two laws may conflict. The following will serve as an illustration. " The bastard born before a legitimate son shall rank as legitimate, the bastard born after the legitimate son shall only rank as a citizen." * All that I have said about laws will also apply to decrees of the senate. If decrees of the senate conflict with one another or with the laws, the basis will be the same as if laws only were concerned. VIII. The syllogistic basis2 has some resemblance to the basis concerned with the letter and intention of the law, since whenever it comes into play, one party rests his case on the letter : there is, however, this difference between the two bases, that in the latter we argue against the letter, in the present beyond the letter, while in the latter the party defending the letter aims at securing that in any case the letter may be carried into effect, whereas in the present his aim will be to prevent anything except the letter being carried into effect. The syllogism is sometimes employed in conjunction with definition : for often if the definition be weak it takes refuge in the syllogism. Assume a law to run as follows : " A woman who is 2 a poisoner shall be liable to capital punishment. A wife gave her husband a love-potion to cure him of his habit of beating her. She also divorced him. On being asked by her relatives to return to him, she refused. The husband hung himself. The woman is accused of poisoning." The strongest line for the accuser to take will be to assert that the love-potion was a poison. This involves definition. If it proves weak, we shall have recourse to the syllogism, to which we shall proceed after virtually 149 QUINTILIAN remissa priore contentione, veniemus, an proinde puniri debeat, ac si virum veneno necasset ? 3 Ergo hie status ducit ex eo quod scriptum est id quod incertum est ; quod quoniam ratione colligitur, ratiocinativus dicitur. In has autem fere species venit an, quod semel ius est, idem et saepius. Incesti damnata et praecipitata de saxo vixit ; re- petitur. An, quod in uno, et in pluribus. Qui duos uno tempore tyrannos occidit, duo praemia petit. An 4 quod ante, et postea. Raptor profugit, rapta nupsit, reverso illo petit optionem. An, quod in toto, idem in parte. Aratrum accipere pignori non licet, vomerem accepit. An, quod in parte, idem in toto. Lanas 5 evehere Tarento non licet, ores evexil. In his syllogismus et scripto nititur ; nam satis cautum esse dicit. Postulo, ut praecipitetur incesta ; lex est; et rapta 1 See in. vi. 43, 61. * i. e. the death of the ravisher, see n. on vil. vii. 3. 15° BOOK VII. vm. 2-5 dropping our previous argument, and which we shall employ to decide the question whether she does not deserve to be punished for administering the love- potion no less than if she had caused her husband's death by poison. The syllogistic basis, then, deduces from the letter of the law that which is uncertain ; and since this conclusion is arrived at by reason, the basis is called ratiocinatice.1 It may be subdivided into the follow- ing species of question. If it is right to do a thing once, is it right to do it often ? Example : " A priestess found guilty of unchastity is thrown from the Tarpeian rock and survives. It is demanded that she shall be thrown down again." If the law grants a privilege with reference to one thing, does it grant it with reference to a number ? Example : "A man kills two tyrants together and claims two rewards." If a thing is legal before a certain occurrence, is it legal after it? Example: "The ravisher took refuge in flight. His victim married. The ravisher returned and the woman demands to be allowed her choice." 2 Is that which is lawful with regard to the whole, lawful with regard to a part ? Example : " It is forbidden to accept a plough as security. He accepted a ploughshare." Is that which is lawful with regard to a part, lawful with regard to the whole ? Example : " It is forbidden to export wool from Tarentum : he exported sheep." In all these cases the syllogism rests on the letter of the law as well : for the accuser urges that the provisions of the law are precise. He will say, " I demand that the priestess who has broken her vows be cast down : it is the law," or " The ravished woman demands the exercise of the I51 QUINTILIAN optionem petit, et in ove lanae sunt, similiter alia. 6 Sed quia responderi potest, non est scriptum, ut bis praecipitetur damnaia, ut quandoque rapta optet, id tyrannicida duo praemia accipiat, nihil de vomere caution, nihil de ovibus : ex eo, quod manifestum est, colligitur quod dubium est. Maioris pugnae est ex scripto ducere quod scriptum non est ; an, quia hoc, et hoc.1 Qui patrem Occident, culleo insuatur : matrem occidit. Ex domo in ius educere ne liceat : ex tabernaculo eduxit. 7 In hoc genere haec quaeruntur, an, quotiens propria lex non est, simili sit utendum, an id de quo agitur ei de quo scriptum est simile sit. Simile autem et maius est et par et minus. In illo priore, an satis lege cautum sit, an, etsi parum cautum est, et hoc sit utendum. In utroque de voluntate legumlatoris. Sed de aequo tractatus potentissimi. IX. Amphiboliae species sunt innumerabiles, adeo ut philosophorum quibusdam nullum videatur esse verbum quod non plura significet ; genera ad- moduni pauca ; aut enim vocibus accidit singulis aut coniunctis. 1 et hoc, added by 2nd hand of A. 153 BOOK VII. vm. 5-1X. i choice permitted her by law," or " Wool grows on sheep," and so on. But to this we may reply, "The law does not prescribe that the condemned woman should be thrown down twice, that the ravished woman should exercise her choice under all circumstances, that the tyrannicide should receive two rewards, while it makes no mention of plough- shares or of sheep." Thus we infer what is doubtful from what is certain. It is a more difficult task to deduce from the letter of the law that which is not actually prescribed by the letter, and to argue because that is the case, so also is this. Take the following problems. "The man who kills his father shall be sewn up in a sack. He killed his mother," or " It is illegal to drag a man from his own house into the court. He dragged him from his tent." Under this heading come questions such as the following : if there is not a special law applicable to the case, ought we to have recourse to an analogous law ? is the point in question similar to what is contained in the letter of the law ? Now it should be noted that what is similar may be greater, equal or less. In the first case we enquire whether the provisions of the law are sufficient, or, if they are insufficient, whether we should have recourse to this other law. In both cases it is a question of the intention of the legislator. But the most effective form of treatment in such cases will be to appeal to equity. IX. I turn to the discussion of ambiguity, which will be found to have countless species : indeed, in the opinion of certain philosophers, there is not a single word which has not a diversity of meanings. There are, however, very few genera, since ambiguity must occur either in a single word or in a group of words. 153 QUINTILIAN 2 Singula ad fe runt errorem, cum pluribus rebus aut hominibus eadem appellatio est (6/>twvu/Aia dicitur), ut gallus, avem an gentem an nomen an fortunam corporis significet, incertum est ; et Aiax, Telamonius an Oi'lei filius. Verba quoque quaedam diversos 3 intellectus habent, ut cerno. Quae arabiguitas pluri- mis modis accidit. Unde fere lites, praecipue ex testamentis, cum de libertate aut etiam de heredi- tate contendunt ii quibus idem nomen est, aut 4 quid sit legatum quaeritur. Alterum est, in quo alia integro verbo significatio est, alia diviso, ut ingenua et anncnncntum et Corvinum, ineptae sane cavillationis, ex qua tamen Graeci controversias ducunt : inde enim avA^-rots ilia vulgata, cum quae- ritur, utrum aula, quae ter ceciderit, an tibicina, si 5 ceciderit, debeat publicari. Tertia est ex compositis, ut si quis corpus suum in culto loco poni iubeat, circaque monumentum multum agri ab heredibus in tutelam cinerum, ut solent, leget, sit litis occasio 6 cultum locum dixerit an incultum.1 Sic apud 1 locum . . . incultum, added by Zumpt. 1 See or decide or separate. * Inye7iuaf a freeborn woman ; in genua, on to the knees. Armamentum, equipment ; arma mention, arms, chin. Corvinum, ace. of name Corvinus; cor vinum, heart, wine. 154 BOOK VII. ix. 2-6 Single words give rise to error, when the same noun applies to a number of things or persons (the Greeks call this hoinonymy) : for example, it is un- certain with regard to the word gallus whether it means a cock or a Gaul or a proper name or an emasculated priest of Cybele ; while Ajax may refer either to the son of Telamon or the son of Oileus. Again, verbs likewise may have different meanings, as, for example, cerno.1 This ambiguity crops up in many ways, and gives rise to disputes, more especially in connexion with wills, when two men of the same name claim their freedom or, it may be, an inherit- ance, or again, when the enquiry turns on the precise nature of the bequest. There is another form of ambiguity where a word has one meaning when entire and another when divided, as, for example, ingenua, armamentum or Corvinum.* The disputes arising from such ambiguities are no more than childish quibbles, but nevertheless the Greeks are in the habit of making them the subject for con- troversial themes, as, for example, in the notorious case of the avXrjrpU, when the question is whether it is a hall which has fallen down three times {avkrj Tpi's) or a flute-player who fell down that is to be sold. A third form of ambiguity is caused by the use of compound words; for example, if a man orders his body to be buried in a cultivated spot, and should direct, as is often done, a considerable space of land surrounding his tomb to be taken from the land left to his heirs with a view to preserving his ashes from outrage, an occasion for dispute may be afforded by the question whether the words mean " in a culti- vated place" (in culto loco) or "in an uncultivated place" (inculto loco). Thus arises the Greek theme 155 QUINTILIAN Graecos contendunt AcW et UavraXeow, cum scriptura dubia est, bona omnia Ac'ovrt an bona Ilai'TaA.e'oi'Ti relicta sint. In coniunctis plus ambiguitatis est. Fit autem per casus, ut 7 Aio te, Aeacida, Romanos vincere posse. Per collocationem, ubi dubium est, quid quo referri oporteat, ac frequentissime, cum quidem medium est, cum utrinque possit trahi, ut de Troilo Vergilius, Lora tenens tamen. Hie, utrum teneat tamen lora an, quamvis teneat, tamen trahatur, quaeri potest. 8 Unde controversia ilia, Testamento quidam iussit poni statuam auream haslam tenentem. Quaeritur, statua hastam tenens aurea esse debeat an hasta esse aurea in statua alterius materiae ? Fit per flexum idem magis : Quinquaginta ubi erant centum inde occidit Achilles. 9 Saepe, utri duorum antecedentium sermo sub- iunctus sit, in dubio est : unde et controversia, Heres 1 i. e. whether he wrote irdvra heovrt or navraXeovrt. * Enn. Ann. 1S6. An ambiguous oracle quoted by Cicero {de Div. II. lvi. ). It might equally mean that Rome or Pyrrhus would conquer. Cp. the oracle given to Croesua : "If thou cross the Halys, thou shalt destroy a mighty empire." 8 Am. i. 477. * "Achilles slew fifty out of a hundred," or "a. hundred out of fifty." Translated from a Greek line in Arist. Soph. El. i. 4. [irivr^Kovr avSpwv tKarby Xlire Stos 'A^iWevs). Quin- quaginta is the object of occidit. Faulty reading might make it go with ubi erant, leaving centum as the object of occidit, and making nonsense of the line. I56 BOOK VII. ix. 6-9 about Leon and Pantaleon, who go to law because the handwriting of a will makes it uncertain whether the testator has left all his property to Leon or his property to Pantaleon.1 Groups of words give rise to more serious am- biguity. Such ambiguity may arise from doubt as to a case, as in the following passage : 2 — " I say that you, O prince of Aeacus' line, Rome can o'erthrow." Or it may arise from the arrangement of the words, 7 which makes it doubtful what the exact reference of some word or words may be, more especially when there is a word in the middle of the sentence which may be referred either to what precedes or what follows, as in the line of Virgil3 which describes Troilus as lora tenens tamen, where it may be disputed whether the poet means that he is still holding the reins, or that, although he holds the reins, he is still dragged along. The 8 controversial theme, "A certain man in his will ordered his heirs to erect ( statu am auream haxtam tenentem,' " turns on a similar ambiguitv ; for it raises the question whether it is the statue holding the spear which is to be of gold, or whether the spear should be of gold and the statue of some other material. The same result is even more frequently produced by a mistaken inflexion of the voice, as in the line : quinquaginta ubi erant centum inde occidit Achilles.* It is also often doubtful to which of two antecedents 9 a phrase is to be referred. Hence we get such con- 157 QUINTILIAN mens uxori meae dare damnas esto argenti quod elegeiit pondo centum. Uter eligat, quaeritur. Verum id, quod ex his primum est, mutatione casuum, sequens divisione verborum aut translatione 10 emendatur, tertium adiectione. Accusativi gemi- natione facta amphibolia solvitur ablativo, ut illud, Lachetem audivi percussissc Demean fiat a Lachete percussum Demean. Sed ablativo ipsi, ut in primo diximus, inest naturalis amphibolia. Caelo decurrit aperto : utrum per apertum caelum, an cum apertum 11 esset. Divisio respiratione et mora constat: statuam, deinde auream hastam ; vel statuam auream, deinde hastam. Adiectio talis est, argentum, quod elegeiit ipse, ut heres intelligatur, vel ipsa, ut uxor. Adiectione facta amphibolia, qualis sit, Nos x flentes illos depre- 12 hendimus, detractione solvetur. Pluribus verbis em- endandum, ubi est id, quod quo referatur dubium est, et ipsum 2 est ambiguum. Heres mens dare illi damnas 1 Nos, Badius : Nunc, MSS. : Hunc, Spalding. 1 ipsum, later MSS. : ipse est, AG. i See § 11. a i. vii. 3. 3 Apparently a misquotation of Virg. Aen. v. 212, pelago decurrit aperto. * Does this mean we found them weeping, or we found them weeping for v,a ! The ambiguity is eliminated by the removal of nos. '58 BOOK VII. ix. 9-12 troversial themes as, " My heir shall be bound to give my wife a hundred pounds of silver according to choice/' where it is left uncertain which of the two is to make the choice. But in these examples of ambiguity, the first may be remedied by a change of case, the second by separating 1 the words or altering their position, the third by some addition.1 Ambiguity resulting from 10 the use of two accusatives may be removed by the substitution of the ablative : for example, Lachetem audivi percussisse Demeam (I heard that Demea struck Laches, or that L. struck D.) may be rendered clear by writing a Lachete percussum Demeam (that D. was struck by L.). There is, however, a natural am- biguity in the ablative case itself, as I pointed out in the first book.2 For example, caelo decurrit operlo3 leaves it doubtful whether the poet means he hastened down " through the open sky," or " when the sky was opened for him to pass." Words may 11 be separated by a breathing space or pause. We may, for instance, say statuam, and then, after a slight pause, add auream hast am, or the pause may come between statuam auream and hastam. The addition referred to above would take the form quod elegerit ipse, where ipse will show that the reference to the heir, or quod elegerit ipsa, making the reference to the wife. In cases where ambiguity is caused by the addition of a word, the difficulty may be eliminated by the removal of a word, as in the sentence nos jientes illos deprehendimus* Where it 12 is doubtful to what a word or phrase refers, and the word or phrase itself is ambiguous, we shall have to alter several words, as, for example, in the sentence, " My heir shall be bound to give him all his own 159 QUINTILIAN esto omnia sua. In quod genus incidit Cicero loquens de C. Fannio ; Is soceri institute, quern, quia cooptatus in augurum collegium non erat, non admodum diligebat, praeserlim cum ille Q. Scaevolam sibi minorem natu generum practulisset. Nam sibi et ad socerum referri 13 et ad Fannium potest. Productio quoque in scripto et correptio in dubio relicta causa est ambiguitatis, ut in hoc, Cato. Aliud enim ostendit brevis secunda syllaba casu nominativo, aliud eadem syllaba producta casu dativo aut ablativo.1 Plurimae praeterea sunt aliae species, quas persequi nihil necesse est. 14 Nee refert, quo modo sit facta amphibolia aut quo resolvatur. Duas enim res significari manifestum est et, quod ad scriptum vocemve pertinet, in utramque partem par est. Ideoque frustra praecipitur, ut in hoc statu vocem ipsam ad nostram partem conemur vertere. Nam, si id fieri potest, amphibolia non est. 15 Amphiboliae autem omnis erit in his quaestio ; aliquando, uter sit secundum naturam magis sermo, semper, utrum sit aequius, utrum is, qui scripsit ac dixit, voluerit. Quarum in utramque partem satis ex his, quae de coniectura et qualitate diximus, praeceptum est. 1 aliud eadem . . . ablativo, added by Regius. 1 Brut. xxvi. 101. The sentence continues, "(an act of which Laelius said by way of excuse that he had given the augurship not to his younger son-in-law, but to his elder daughter), Fannius, I say, despite his lack of affection for Laelius, in obedience to his instructions attended the lectures of Panaetins." 1 se. of the adjective cuius, shrewd. 160 BOOK VII. ix. 12-is property," where "his own" is ambiguous. Cicero commits the same fault when he says of Gaius Fannius,1 "He following the instructions of his father-in-law, for whom, because he had not been elected to the college of augurs, he had no great affection, especially as he had given Quintus Scaevola, the younger of his sons-in-law, the preference over himself . . ." For over himself' may refer either to his father-in-law or to Fannius. Again, another source 13 of ambiguity arises from leaving it doubtful in a written document whether a syllable is long or short. Cato, for example, means one thing in the nomina- tive when its second syllable is short, and another in the dative or ablative when the same syllable is long.2 There are also a number of other forms of ambiguity which it is unnecessary for me to describe at length. Further, it is quite unimportant how ambiguity 14 arises or how it is remedied. For it is clear in all cases that two interpretations are possible, and as far as the written or spoken word is concerned, it is equally important for both parties. It is therefore a perfectly futile rule which directs us to endeavour, in connexion with this basis, to turn the word in question to suit our own purpose, since, if this is feasible, there is no ambiguity. In cases of 15 ambiguity the only questions which confront us will be, sometimes which of the two interpretations is most natural, and always which interpretation is most equitable, and what was the intention of the person who wrote or uttered the words. I have, however, given sufficient instructions in the course of my remarks on conjecture and quality, as to the method of treating such questions, whether by the prosecution or the defence. 161 VOL. III. G QUINTILIAN X. Est autem quaedam inter hos status cognatio. Nam et in finitione, quae sit voluntas nominis, quaeritur, et in syllogismo, qui secundus a finitione status est,1 spectatur quid voluerit scriptor ; et con- trarias leges duos esse scripti et voluntatis status apparet. Rursus et finitio quodamraodo est amphi- bolia, cum in duas partes diducatur intellectus 2 nominis. Scriptum et voluntas habet in verbis iuris 2 quaestionem, quod idem antinomia petitur. Ideoque omnia haec quidam scriptum et voluntatem esse dixerunt, alii in scripto et voluntate amphiboliam esse, quae facit quaestionem. Sed distincta sunt ; aliud est enim obscurum ius, aliud ambiguum. 3 Igitur finitio in natura ipsa nominis quaestionem habet generalem, et quae esse etiam citra complexum causae possit ; scriptum et voluntas de eo disputat iure quod est in lege, syllogismus de eo quod non est. Amphiboliae lis in diversum trahit, legum 4 contrariarum ex diverso pugna est. Neque immerito 1 After est AG read quae, which is expunged by Regius. 1 iuris, Spalding : * * ocis, A. : iocis, G. 1 ill. vi. 54. * See ch. viii. 1. 162 BOOK VII. x. 1-4 X. There is, however, a certain affinity between all these bases.1 For in definition we enquire into the meaning of a term, and in the syllogism, which is closely connected with definition* we consider what was the meaning of the writer, while it is obvious that in the case of contrary laws there are two bases, one concerned with the letter, and the other with the intention. Again, definition is in itself a kind of ambiguity, since it brings out two meanings in the same term. The basis concerned with the letter and the intention of the law involves a legal question as regards the interpretation of the words, which is identical with the question arising out of contrary lan-s. Consequently some writers have asserted that all these bases may be resolved into those concerned with the letter and intention, while others hold that in all cases where the letter and the intention of a document have to be considered, it is ambiguity that gives rise to the question at issue. But all these bases are really distinct, for an obscure point of law is not the same as an ambiguous point of law. Definition, then, involves a general question as to the actual nature of a term, a question which may conceivably have no connexion whatsoever with the content of the case in point. In investigations as to the letter and the intention, the dispute turns on the provisions contained in the law, whereas the syllogism deals with that which is not contained in the law. In disputes arising out of ambiguity we are led from the ambiguous phrase to its conflicting meanings, whereas in the case of contrary laws the fight starts from the conflict of their provisions. The distinction between these bases has therefore been rightly accepted by the most learned of 163 QUINTILIAN et recepta est a doctissimis haec differentia et apud plurimos ac prudentissimos durat. Et de hoc quidem genere dispositions, etiamsi 5 non omnia, tradi tamen aliqua potuerunt. Sunt alia quae, nisi proposita de qua dicendum est materia, viam docendi non praebeant. Non enim causa tantum1 universa in quaestiones ac locos diducenda2 est, sed hae ipsae partes habent rursus ordinem suum. Nam et in prooemio primum est aliquid et secundum ac deinceps, et quaestio omnis ac locus habet suam dispositionem ut theses etiam simplices. 6 Nisi3 forte satis erit dividendi peritus, qui contro- versiam in haec diduxerit,4 an omne praemium viro forti dandum sit, an ex privato, an nuptiae, an eius quae nupta sit, an hae ; deinde, cum fuerit de prima quaestione dicendum, passim et ut quidque in men- tem veniet miscuerit, non primum in ea scierit 7 esse tractandum, verbis legis standum sit an volun- tate, buius ipsius particulae aliquod initium fecerit, deinde proxima subnectens struxerit orationem, ut 1 tantum, added by Halm. * diducenda, Regius: dicenda, AG. 8 nisi, Obrecht : si, MSS. * diduxerit, Regixis : dixerit, MSS. 1 cp. ii. iv. 24 ; in. v. 8. 164 BOOK VII. x. 4-7 rhetoricians, and is still adopted by the majority and the wisest of the teachers of to-day. It has not been possible in this connexion to give instructions which will cover the arrangement to be adopted in every case, though I have been able to wive some. There are other details concerning which I can give no instructions without a statement of the particular case on which the orator has to speak. For not only must the whole case be analysed into its component topics and questions, but these sub- divisions themselves require to be arranged in the order which is appropriate to them. For example, in the exordium each part has its own special place, first, second and third, etc., while each question and topic requires to be suitably arranged, and the same is true even of isolated general questions.1 For it will not, I imagine, be represented that sufficient skill in division is possessed by the man who, after re- solving a controversial theme into questions such as the following, whether a hero is to be granted any reward that he may claim, whether he is allowed to claim private property, whether he may demand any woman in marriage, whether he may claim to marry a woman who already possesses a husband, or this particular woman, then, although it is his duty to deal with the first question first, proceeds to deal with them indiscriminately as each may happen to occur to him, and ignores the fact that the first point which should be discussed is whether we should stand by the letter or the intention of the law, and fails to follow the natural order, which demands that after beginning with this question he should then proceed to introduce the subsidiary questions, thereby making the structure of his speech 165 QUINTILIAN pars hominis est manus, eius digiti, illorum quoque articuli. Hoc est quod scriptor demonstrare non 8 possit, nisi certa definitaque materia. Sed quid una faciet aut altera, quin imino centum ac mille in re infinita1? Praeceptoris est, in alio atque alio genere cotidie ostendere, quis ordo sit rerum et quae copulatio, ut paulatim fiat usus et ad similia transitus. Tradi enim omnia, quae ars efficit, non possunt. 9 Nam quis pictor omnia, quae in rerum natura sunt, adumbrare didicit? sed percepta semel imitandi ratione adsimulabit quidquid acceperit. Quis non faber vasculum aliquod, quale nunquam viderat, fecit? 10 Quaedam vero non docentium sunt, sed discentium. Nam medicus, quid in quoque valetudinis genere faciendum sit, quid quibusque signis providendum, docebit; vim sentiendi pulsus venarum, coloris modos, spiritus meatum, caloris distantiam, quae sui cuiusque sunt ingenii, non dabit. Quare plurima petamus a nobis et cum causis deliberemus cogite 1 in re infinita, Rollin: in re finita quae materia in se finita, O : in re finitaque materia ars finita, A. 1 fecerit and struxerit are both negatived by the preceding non. It is impossible to reproduce the conciseness of the original. 166 BOOK VII. x. 7-10 as regular as that of the human body, of which, for example, the hand is a part, while the fingers are parts of the hand, and the joints of the fingers.1 It is precisely this method of arrangement which it is impossible to demonstrate except with reference to some definite and specific case. But it is clearly S useless to take one or two cases, or even a hundred or a thousand, since their number is infinite. It is the duty of the teacher to demonstrate daily in one kind of case after another what is the natural order and connexion of the parts, so that little by little his pupils may gain the experience which will enable them to deal with other cases of the same character. For it is quite impossible to teach everything that can be accomplished by art. For example, what 9 painter has ever been taught to reproduce everything in nature ? But once he has acquired the general principles of imitation, he will be able to copy what- ever is given him. What vase-maker is there who has not succeeded in producing a vase of a type which he had never previously seen ? There are, however, some things which depend 10 not on the teacher, but on the learner. For example, a physician will teach what treatment should be adopted for different diseases, what the dangers are against which he must be on his guard, and what the symptoms by which they may be recognised. But he will not be able to communicate to his pupil the gift of feeling the pulse, or appreciating the variations of colour, breathing and temperature : this will depend on the talent of the individual. Therefore, in most instances, we must rely on ourselves, and must study cases with the utmost care, never 167 QUINTILIAN musque homines ante invenisse artem quani docuisse. 1 1 Ilia enim potentissima est, quaeque vere dicitur oeconomica totius causae dispositio, quae nullo modo constitui nisi velut in re praesente potest : ubi adsumendum prooemium, ubi omittendum, ubi uten- dum expositione continua, ubi partita, ubi ab initiis incipiendum, ubi more Homerico e mediis vel 12 ultimis, ubi omnino non exponendum, quando a nostris, quando ab adversariorum propositionibus incipiamus, quando a firmissimis probationibus, quando a levioribus ; qua in causa praeponendae prooemiis quaestiones, qua praeparatione praemuni- endae, quid iudicis animus accipere possit statim dictum, quo paulatim deducendus, singulis an uni- versis opponenda refutatio, reservandi perorationi an per totam actionem diffundendi adfectus, de iure prius an de aequitate dicendum ; anteacta crimina an de quibus iudicium est prius obiicere vel diluere 13 conveniat ; si multiplices causae erunt, quis ordo faciendus, quae testimonia tabulaeve cuiusque generis in actione recitandae, quae reservandae. Haec est velut imperatoria virtus copias suas partientis ad 1 cp. in. iii. 9. 168 BOOK VII. x. 11-13 forgetting that men discovered our art before ever they proceeded to teach it. For the most effective, 11 and what is justly styled most economical l arrange- ment of a case as a whole, is that which cannot be determined except when we have the specific facts before us. It consists in the power to determine when the exordium is necessary and when it should be omitted ; when we should make our statement of facts continuous, and when we should subdivide it ; when we should begin at the very beginning, when, like Homer, start at the middle or the end; when 12 we should omit the statement of facts altogether; when we should begin bv dealing with the arguments advanced by our opponents, and when with our own ; when we should place the strongest proofs first and when the weakest; in what cases we should prefix questions to the exordium, and what preparation is necessary to pave the way for these questions ; what arguments the judge will accept at once, and to what he requires to be led by degrees ; whether we should refute our opponent's arguments as a whole or in detail ; whether we should reserve emotional appeals for the peroration or distribute them through- out the whole speech ; whether we should speak first of law or of equity ; whether we should first advance (or refute) charges as to past offences or the charges connected with the actual trial ; or, again, if the 13 case is complicated, what order we should adopt, what evidence or documents of any kind should be read out in the course of our speech, and what reserved for a later stage. This gift of arrangement is to oratory what generalship is to war. The skilled commander will know how to distribute his forces 169 QUINTILIAN casus proeliorum, retinentis partes per castella tuenda custodiendasve urbes, petendos commeatus, obsidenda itinera, mari denique ac terra dividentis. 14 Sed haec in oratione praestabit, cui omnia adfuerint, natura, doctrina, studium. Quare nemo exspectet, ut alieno tantum labore sit disertus. Vigilandum, durandum,1 enitendum, pallendum est, facienda sua cuique vis, suus usus, sua ratio, non respiciendum ad haec, sed in promptu habenda, nee tanquam 15 tradita sed tanquam innata. Nam via demonstrari potest, velocitas sua cuique est; verum ars satis praestat, si copias eloquentiae ponit in medio ; 16 nostrum est uti eis scire. Neque enim partium est demum dispositio, sed in his ipsis primus aliquis sensus et secundus et tertius ; qui non modo ut sint ordine collocati, laborandum est, sed ut inter se vincti atque ita cohaerentes, ne commissura per- 17 luceat; corpus sit, non membra. Quod ita con- tinget, si et quid cuique conveniat viderimus et verba verbis applicarimus non pugnantia, sed quae invicem complectantur. Ita res non diversae dis- tantibus ex locis quasi invicem ignotae collidentur, sed aliqua societate cum prioribus ac sequentibus 1 durandum, Bonnell : dicendum, A. : dicat iterum, O. 170 BOOK VII. x. 13-17 for battle, what troops he should keep back to garrison forts or guard cities, to secure supplies, or guard communications, and what dispositions to make by land and by sea. But to possess this gift, our 14 orator will require all the resources of nature, learning and industrious study. Therefore let no man hope that he can acquire eloquence merely by the labour of others. He must burn the midnight oil, persevere to the end and grow pale with study : he must form his own powers, his own experience, his own methods : he must not require to hunt for his weapons, but must have them ready for immediate use, as though they were born with him and not derived from the instruction of others. The road 15 may be pointed out, but our speed must be our own. Art has done enough in publishing the resources of eloquence, it is for us to know how to use them. And it is not enough merely to arrange 16 the various parts : each several part has its own internal economy, according to which one thought will come first, another second, another third, while we must struggle not merely to place these thoughts in their proper order, but to link them together and give them such cohesion that there will be no trace of any suture : they must form a body, not a congeries of limbs. This end will be attained if we note what 17 best suits each position, and take care that the words which we place together are such as will not clash, but will mutually harmonise. Thus different facts will not seem like perfect strangers thrust into uncongenial company from distant places, but will be united with what precedes and follows by an intimate bond of union, with the result that our 171 QUINTILIAN copulatae tenebuntur,1 ac videbitur non solum composita oratio, sed etiam continua. Verum longius fortasse progredior fallente transitu et a dispositione ad elocutionis praecepta labor, quae proximus liber inchoabit. 1 copulatae tenebuntur, Halm, : scopula tenebunt, G : se copula tenebunt, A (se 2nd hand). 172 BOOK VII. x. 17 speech will give the impression not merely of having been put together, but of natural continuity. I fear, however, that I have been lured on from one thing to another and have advanced somewhat too far, since I find myself gliding from the subject of arrange- ment to the discussion of the general rules of style, which will form the opening theme of the next book. 173 BOOK VIII LIBER VIII Prooemium His fere, quae in proximos quinque libros collata sunt, ratio inveniendi atque inventa disponendi continetur, quam ut per omnes numeros penitus cognoscere ad summam scientiae necessarium est, ita incipientibus brevius ac simplicius tradi magis 2 convenit. Aut enim difficultate institutionis tam numerosae atque perplexae deterreri solent, aut eo tempore, quo praecipue alenda ingenia atque indul- gentia quadam enutrienda sunt, asperiorum tractatu rerum atteruntur, aut, si haec sola didicerunt, satis se ad eloquentiam instructos arbitrantur, aut quasi ad certas quasdarn dicendi leges adligati conatum 3 omnem reformidant. Unde existimant accidisse ut, qui diligentissimi artium scriptores exstiterint, ab eloquentia longissime fuerint. Via tamen opus est incipientibus, sed ea plana et cum ad ingrediendum turn ad demonstrandum expedita. Eligat itaque 176 BOOK VIII Preface The observations contained in the preceding five books approximately cover the method of invention and the arrangement of the material thus provided. It is absolutely necessary to acquire a thorough knowledge of this method in all its details, if we desire to become accomplished orators, but a simpler and briefer course of instruction is more suitable for beginners. For they tend either to be deterred from 2 study by the difficulties of so detailed and complicated a course, or lose heart at having to attempt tasks of such difficulty just at the very period when their minds need special nourishment and a more attrac- tive form of diet, or think that when they have learned this much and no more, they are fully equipped for the tasks of eloquence, or finally, re- garding themselves as fettered by certain fixed laws of oratory, shrink from making any effort on their own initiative. Consequently, it has been held that 3 those who have exercised the greatest care in writing text-books of rhetoric have been the furthest removed from genuine eloquence. Still, it is abso- lutely necessary to point out to beginners the road which they should follow, though this road must be smooth and easy not merely to enter, but to indicate. Consequently, our skilful instructor should select all 177 QUINTILIAN peritus ille praeceptor ex omnibus optima et tradat ea demum in praesentia quae placet, remota re- futandi cetera mora. Sequentur enim discipuli, quo 4 duxeris. Mox cum robore dicendi crescet etiam eruditio. Iidem primo solum iter credant esse in quod inducentur, mox illud cognituri etiam optimum. Sunt autem neque obscura neque ad percipiendum difficilia quae scriptores diversis opinionibus perti- 5 naciter tuendis involverunt. Itaque in toto artis huiusce tractatu difficilius est iudicare quid doceas quam, cum iudicaris, docere, praecipueque in duabus his partibus perquam sunt pauca, circa quae si is qui instituitur non repugnaverit, pronum ad cetera habiturus est cursum. 6 Nempe enim plurimum in hoc laboris exhausimus, ut ostenderemus rhetoricen bene dicendi scientiam et utilem et artem et virtutem esse ; materiam eius res omnes de quibus dicendum esset; eas in tribus fere generibus, demonstrative, deliberativo, iudici- alique reperiri ; orationem porro omnem constare l78 BOOK VIII. Pr. 3-6 that is best in the various writers on the subject and content himself for the moment with imparting those precepts of which he approves, without wasting time over the refutation of those which he does not approve. For thus your pupils will follow where you lead. Later, as they acquire strength in speaking, 4 their learning will grow in proportion. To begin with, they may be allowed to think that there is no other road than that on which we have set their feet, and it may be left to time to teach them what is actually the best. It is true that writers on rhetoric have, by the pertinacity with which they have defended their opinions, made the principles of the science which they profess somewhat com- plicated ; but these principles are in reality neither obscure nor hard to understand. Consequently, if 5 we regard the treatment of the art as a whole, it is harder to decide what we should teach than to teach it, once the decision has been made. Above all, in the two departments which I have mentioned, the necessary rules are but few in number, and if the pupil gives them ready acceptance, he will find that the path to further accomplishment presents no difficulty. I have, it is true, already expended much labour 6 on this portion of my task ; for I desired to make it clear that rhetoric is the science of speaking well, that it is useful, and further, that it is an art and a virtue. I wished also to show that its subject matter consists of everything on which an orator may be called to speak, and is, as a rule, to be found in three classes of oratory, demonstrative, deliberative, and forensic ; that every speech is composed of matter and words, and that as regax*ds matter we must 179 QUINTILIAN rebus et verbis ; in rebus intuendam inventionem, in verbis elocutionem, in utroque x collocationem, quae memoria conplecteretur, actio commendaret. 7 Oratoris officium docendi, movendi, delectandi par- tibus contineri, ex quibus ad docendum expositio et argumentatio, ad movendum adfectus pertinerent, quos per omnem quidem causam sed maxime tamen in ingressu ac fine dominari. Nam delectationem, quamvis in utroque sit eorum, magis tamen proprias 8 in elocutione partes habere. Quaestiones alias in- finitas, alias finitas quae personis, temporibus, locis continerentur. In omni porro materia tria esse quaerenda, an sit, quid sit, quale sit. His adiicie- bamus demonstrativam laude ac vituperatione con- stare. In ea quae ab ipso de quo diceremus, quae post eum acta essent, intuendum. Hoc opus trac- 9 tatu honestorum utiliumque constare. Suasoriis accedere tertiam partem ex coniectura, possetne fieri et an esset futurum de quo deliberaretur. Hie praecipue diximus spectandum, quis, apud quem, quid diceret. Iudicialium causarum alias in singulis, alias in pluribus controversiis consistere, et in 1 utroque, Halm : utraque, AG. 180 BOOK VIII. Pr. 6-9 study invention, as regards words, style, and as regards both, arrangement, all of which it is the task of memory to retain and delivery to render attractive. I attempted to show that the duty of 7 the orator is composed of instructing, moving and delighting his hearers, statement of facts and argu- ment falling under the head of instruction, while emotional appeals are concerned with moving the audience and, although they may be employed throughout the case, are most effective at the be- ginning and end. As to the element of charm, I pointed out that, though it may reside both in facts and words, its special sphere is that of style. I 8 observed that there are two kinds of questions, the one indefinite, the other definite, and involving the consideration of persons and circumstances of time and place ; further, that whatever our subject mat- ter, there are three questions which we must ask, is it ? what is it ? and of' what kind is it ? To this I added that demonstrative oratory consists of praise and denunciation, and that in this connexion we must consider not merely the acts actually per- formed by the person of whom we were speaking, but what happened after his death. This task I showed to be concerned solely with what is honour- able or expedient. I remarked that in deliberative 9 oratory there is a third department as well which depends on conjecture, for we have to consider whether the subject of deliberation is possible or likely to happen. At this point I emphasised the importance of considering who it is that is speaking, before whom he is speaking, and what he says. As regards forensic cases, I demonstrated that some turn on one point of dispute, others on several, and 181 QUINTILIAN quibusdam intentionem modo statum facere, modo depulsionem ; x depulsionem porro omnem infitia- tione duplici, factumne et an hoc factum esset, 10 praeterea defensione ac translatione constare. Quae- stionem aut ex scripto esse aut ex facto ; facto,2 de rerum fide, proprietate, qualitate ; scripto, de verborum vi aut voluntate, in quibus vis turn causa- rum turn actionum inspici soleat, quae aut scripti et voluntatis aut ratiocinativa aut ambiguitatis aut 11 legum contrariarum specie continentur. In omni porro causa iudiciali quinque esse partes, quarum exordio conciliari audientem, narratione doceri, pro- batione 3 proposita confirmari, refutatione contra dicta dissolvi, peroratione 4 aut memoriam refici aut 12 animos inoveri. His argumentandi et adficiendi locos et quibus generibus concitari, placari, resolvi iudices oporteret, adiecimus. Accessit ratio divi- sionis. Credere modo qui discet velit materiam quandam variam esse,5 et in qua multa etiam sine doctrina praestare debeat per se ipsa natura, ut haec 1 statum . . . depulsionem, added by Happel, following Schiitz. t facto, added by Spalding. 3 doceri, probatione, added by Meister. * contra dicta, added by Halm : dissolvi, peroratione, added by Aldine edn. 6 materiam quandam variam esse, Happel : certa quaedam varia est and the like, MSS. 182 BOOK VIII. Pr. 9-12 that whereas in some cases it is the attack, in others it is the defence that determines the basis ; that every defence rests on denial, which is of two kinds, since we may either deny that the act was com- mitted or that its nature was that alleged, while it further consists of justification and technical pleas to show that the action cannot stand. I proceeded 10 to show that questions must turn either on some- thing written or something done : in the latter case we have to consider the truth of the facts together with their special character and quality ; in the former we consider the meaning or the intention of the words, with reference to which we usually examine the nature of all cases, criminal or civil, which fall under the heads of the letter and intention, the syllogism, ambiguity or contrary laws. I went on to point out that in all forensic cases the 1 1 speech consists of five parts, the exordium designed to conciliate the audience, the statement of facts designed to instruct him, the proof which confirms our own propositions, the refutation which overthrows the arguments of our opponents, and the peroration which either refreshes the memory of our hearers or plays upon their emotions. I then dealt with the 12 sources of arguments and emotion, and indicated the means by which the judges should be excited, placated, or amused. Finally I demonstrated the method of division. But I would ask that the student who is really desirous of learning should believe that there are also a variety of subjects with regard to which nature itself should provide much of the requisite knowledge without any assistance from formal teaching, so that the precepts of which I have spoken may be regarded not so much as 183 QUINTILIAN de quibus dixi non tam inventa a praeceptoribus quam cum fierent observata esse videantur. 13 Plus exigunt laboris et curae quae sequuntur. Hinc enim iam elocutionis rationem tractabimus, partem operis, ut inter omnes oratores convenit, difficillimam. Nam et M. Antonius, cuius supra mentionem habuimus, cum a se disertos visos esse multos ait, eloquentem neminem : diserto satis putat dicere quae oporteat, ornate autem dicere 14 proprium esse eloquentissimi. Quae virtus si usque ad eum in nullo reperta est, ac ne in ipso quidem aut L. Crasso, certum est et in his et in prioribus earn desideratam, quia difficillima fuit. Et Marcus Tullius inventionem quidem ac dispositionem pru- 15 dentis hominis putat, eloquentiam oratoris, ideoque praecipue circa praecepta partis huius laboravit. Quod eum merito fecisse etiam ipso rei, de qua loquimur, nomine palam declaratur. Eloqui enim 4 est omnia, quae mente conceperis, promere atque ad audientes perferre ; sine quo supervacua sunt priora et similia gladio condito atque intra vaginam 16 suam haerenti. Hoc itaque maxime docetur, hoc nullus nisi arte adsequi potest, hie studium plurimum adhibendum, hoc exercitatio petit, hoc 1 After enim the iVSS. give hoc which is deleted by Gesner. 1 de Or. I. xxi. 94. * Cic. Or. xiv. 44 ; 184 BOOK VIII. Pr. 12-16 having been discovered by the professors of rhetoric as having been noted by them when they presented themselves. The points which follow require greater care and 13 industry. For I have now to discuss the theory of style, a subject which, as all orators agree, presents the greatest difficulty. For Marcus Antonius, whom I mentioned above, states that he has seen many good, but no really eloquent speakers, and holds that, while to be a good speaker it is sufficient to say what is necessarv, onlv the really eloquent speaker can do this in ornate and appropriate lan- guage.1 And if this excellence was to be found in 14 no~orator up to his own day, and not even in himself or Lucius Crassus, we may regard it as certain that the reason why they and their predecessors lacked this gift was its extreme difficulty of acquisition. Again, Cicero 2 holds that, while invention and arrangement are within the reach of any man of good sense, eloquence belongs to the orator alone, and consequently it was on the rules for the cultiva- tion of eloquence that he expended the greatest care. That he was justified in so doing is shown 15 clearly by the actual name of the art of which I am speaking. For the verb eloqui means the production and communication to the audience of all that the speaker has conceived in his mind, and without this power all the preliminary accomplishments of oratory are as useless as a sword that is kept permanently concealed within its sheath. Therefore it is on this 16 that teachers of rhetoric concentrate their atten- tion, since it cannot possibly be acquired without the assistance of the rules of art : it is this which is the chief object of our study, the goal of all 185 QUINTILIAN imitatio, hie omnis aetas consumitur, hoc maxime orator oratore praestantior, hoc genera ipsa dicendi 17 aliis aliapotiora. Neque enim Asiani aut quocunque alio genere corrupti res non viderunt aut eas non collocaverunt neque, quos aridos vocamus, stulti aut in causis caeci fuerunt ; sed his iudicium in elo- quendo ac modus, illis vires defuerunt, ut appareat in hoc et vitium et virtutem esse dicendi. 18 Non ideo tamen sola est agenda cura verborum. Occurram enim necesse est et, velut in vestibulo protinus apprehensuris hanc confessionem meam, resistam iis qui, omissa rerum (qui nervi sunt in causis) diligentia, quodam inani circa voces studio senescunt, idque faciunt gratia decoris, qui est in dicendo mea quidem opinione pulcherrimus, sed 19 cum sequitur non cum adfectatur. Corpora sana et integri sanguinis et exercitatidne firmata ex iisdem his speciem accipiunt ex quibus vires, namque et colorata et adstricta et lacertis expressa sunt ; at eadem si quis volsa atque fucata muliebriter comat, 186 BOOK VIII. Pr. 16-19 our exercises and all our efforts at imitation, and it is to this that we devote the energies of a lifetime ; it is this that makes one orator surpass his rivals, this that makes one style of speaking preferable to another. The failure of the orators of the Asiatic 17 and other decadent schools did not lie in their inability to grasp or arrange the facts on which they had to speak, nor, on the other hand, were those who professed what we call the dry style of oratory either fools or incapable of understanding the cases in which they were engaged. No, the fault of the former was that they lacked taste and restraint in speaking, while the latter lacked power, whence it is clear that it is here that the real faults and virtues of oratory are to be found. This does not, however, mean that we should 18 devote ourselves to the study of words alone. For I am compelled to offer the most prompt and deter- mined resistance to those who would at the very portals of this enquiry lay hold of the admissions I have just made and, disregarding the subject matter which, after all, is the backbone of any speech, devote themselves to the futile and crippling study of words in a vain desire to acquire the gift of elegance, a gift which I myself regard as the fairest of all the glories of oratory, but only when it is natural and unaffected. Healthy bodies, enjoying 19 a good circulation and strengthened by exercise, acquire grace from the same source that gives them strength, for they have a healthy complexion, firm flesh and shapely thews. But, on the other hand, the man who attempts to enhance these physical graces by the effeminate use of depilatories and cos- metics, succeeds merely in defacing them by the 187 QUINTILIAN 20 foedissima sint ipso formae labore. Et cultus con- cessus atque magnificus addit hominibus, ut Graeco versu testatum est, auctoritatem ; at muliebris et luxuriosus non corpus exornat, sed detegit mentem. Similiter ilia translucida et versicolor quorundam elocutio res ipsas effeminat, quae illo verborum habitu vestiantur. Curam ergo verborum, rerum 21 volo esse sollicitudinem. Nam plerumque optima rebus cohaerent et cernuntur suo lumine ; at nos quaerimus ilia, tanquam lateant semper seque sub- ducant. Ita nunquam putamus circa id esse de quo dicendum est, sed ex aliis locis petimus et inventis 22 vim adferimus. Maiore animo aggredienda eloquen- tia est, quae si toto corpore valet, ungues polfre et capillum reponere non existimabit ad curam suam pertinere. Sed evenit plerumque ut in hac diligentia deterior 23 etiam fiat oratio, primum, quia sunt optima minime arcessita et simplicibus atque ab ipsa veritate pro- fectis similia. Nam ilia, quae curam fatentur et ficta atque composita videri etiam volunt, nee gratiam consequuntur et fid em amittunt propter id quod sensus obumbrantur et velut laeto gramine sata 24 strangulantur.1 Nam et quod recte dici potest cir- cumimus amore verborum et quod satis dictum est 1 obumbrantur . . . strangulantur, Spalding : obumbrant , . . strangulant, MSS. 188 BOOK VIII. Pr. 19-24 very care which he bestows on them. Again, a 20 tasteful and magnificent dress, as the Greek poet tells us, lends added dignity to its wearer : but effeminate and luxurious apparel fails to adorn the body and merely reveals the foulness of the mind. Similarly, a translucent and iridescent style merely serves to emasculate the subject which it arrays with such pomp of words. Therefore I would have the orator, while careful in his choice of words, be even more concerned about his subject matter. For, as a 21 rule, the best words are essentially suggested by the subject matter and are discovered by their own intrinsic light. But to-day we hunt for these words as though they were always hiding themselves and striving to elude our grasp. And thus we fail to realise that they are to be found in the subject of our speech, and seek them elsewhere, and, when we have found them, force them to suit their context. It is with a more virile spirit that we should pursue 22 eloquence, who, if only her whole body be sound, will never think it her duty to polish her nails and tire her hair. The usual result of over-attention to the niceties of style is the deterioration of our eloquence. The 23 main reason for this is that those words are best which are least far-fetched and give the impression of simplicity and reality. For those words which are obviously the result of careful search and even seem to parade their self-conscious art, fail to attain the grace at which they aim and lose all appearance of sincerity because they darken the sense and choke the good seed by their own luxuriant overgrowth. For in 24 our passion for words we paraphrase what might be said in plain language, repeat what we have already 189 QUINTILIAN repetimus et quod uno verbo patet pluribus one- ramus et pleraque significare melius putamus quam dicere. Quid quod nihil iam proprium placet, dum 25 parum creditur disertum quod et alius dixisset? A corruptissimo quoque poetarum figuras seu trans- lationes mutuamur, turn demum ingeniosi scilicet, si ad intelligendos nos opus sit ingenio. Atqui satis aperte Cicero praeceperat, in dicendo vitium vel maximum esse a vulgari genere orationis atque a 26 consuetudine communis sensus abhorrere. Sed ille est durus atque ineruditus ; nos melius, quibus sordet omne quod natura dictavit, qui non ornamenta quaerimus sed lenocinia, quasi vero sit ulla verborum nisi rei cohaerentium virtus ; quae ut propria sint et dilucida et ornata et apte collocentur, si tota vita laborandum est, omnis studiorum fructus amis- 27 sus est. Atqui plerosque videas haerentes circa singula et dum inveniunt et dum inventa ponderant ac dimetiuntur. Quod si idcirco fieret ut semper optimis uterentur, abominanda tamen haec infelicitas erat, quae et cursum dicendi refrenat et calorem 28 cogitationis extinguit mora et diffidentia. Miser 1 de Or. i. iii. 12. 190 BOOK VIII. Pr. 24-28 said at sufficient length, pile up a number of words where one would suffice, and regard allusion as better than directness of speech. So, too, all directness of speech is at a discount, and we think no phrase eloquent that another could conceivably have used. We borrow figures and metaphors from the 25 most decadent poets, and regard it as a real sign of genius that it should require a genius to under- stand our meaning. And yet Cicero l long since laid down this rule in the clearest of language, that the worst fault in speaking is to adopt a style in- consistent with the idiom of ordinary speech and contrary to the common feeling of mankind. But 26 nowadays our rhetoricians regard Cicero as lacking both polish and learning ; we are far superior, for we look upon everything that is dictated by nature a"s~beneatli our notice, and seek not for thje_Jtme ornaments of speech, but for meretricious finery, as though there were any real virtue in words save in their power to represent Tacts. And if we have to spend all our life in the laborious effort to discover words which will at once be brilliant, appropriate and lucid, and to arrange them with exact precision, we lose all the fruit of our studies. And yet we see 27 the majority of modern speakers wasting their time over the discovery of single words and over the elaborate weighing and measurement of such words when once discovered. Even if the special aim of such a practice were always to secure the best words, such an ill-starred form of industry would be much to be deprecated, since it checks the natural current of our speech and extinguishes the warmth of imagination by the delay and loss of self-confidence which it occasions. For the orator who cannot 28 191 QUINTILIAN enim et, ut sic dicam, pauper orator est qui nullum verbum aequo animo perdere potest. Sed ne perdet quidem, qui rationem loquendi primum cognoverit, turn lectione multa et idonea copiosam sibi ver- borum supellectilem compararit et huic adhibuerit artem collocandi, deinde haec omnia exercitatione plurima roborarit, ut semper in promptu sint et 29 ante oculos. Namque ei qui id fecerit simul x res cum suis nominibus occurrent. Sed opus est studio praecedente et acquisita facultate et quasi reposita. Namque ista quaerendi, iudicandi, comparandi an- xietas, dum discimus, adhibenda est, non dum dicimus. Alioqui sicut, qui patrimonium non para- runt, sub diem quaerunt, ita in oratione, qui non 30 satis laboravit. Sin praeparata dicendi vis fuerit, erunt in officio, non ut requisita respondere, sed ut semper sensibus inhaerere videantur atque eos 31 ut umbra corpus sequi. Sed2 in hac ipsa cura est aliquid satis. Nam cum Latina, significantia, ornata, cum apte sunt collocata, quid amplius laboremus? Quibusdam tamen nullus est finis calumniandi se et cum singulis paene syllabis commoriendi, qui etiam, 1 ei qui fecerit, simul, Halm: hii quid fecerit sic, O i illi qui id fecerit sic, A. (illi qui id, 2nd hand). * sequi. Sed, Balm : sequis, G. : sequitur, A. 192 BOOK VIII. Pr. 28-31 endure to lose a single word is like a man plunged in griping poverty. On the other hand, if he will only first form a true conception of the principles of eloquence, accumulate a copious supply of words by wide and suitable reading, apply the art of arrange- ment to the words thus acquired, and finally, by continual exercise, develop strength to use his acquisitions so that every word is ready at hand and lies under his very eyes, he will never lose a single word. For the man who follows these in- 29 structions will find that facts and words appropriate to their expression will present themselves spon- taneously. But it must be remembered that a long course of preliminary study is necessary and that the requisite ability must not merely be acquired, but carefully stored for use ; for the anxiety devoted to the search for words, to the exercise of the critical faculty and the power of comparison is in its place while we are learning, but not when we are speaking. Otherwise, the orator who has not given sufficient attention to preliminary study will be like a man who, having no fortune, lives from hand to mouth. If, on the other hand, the powers of speech 30 have been carefully cultivated beforehand, words will yield us ready service, not merely turning up when we search for them, but dwelling in our thoughts and following them as the shadow follows the body. There are, however, limits even to this 31 form of study ; for when our words are good Latin, full of meaning, elegant and aptly arranged, why should we labour further? And yet there are some who are never weary of morbid self-criticism, who throw themselves into an agony of mind almost over separate syllables, and even when they have 193 VOL. III. H QU1NTILIAN cum optima sunt reperta, quaerunt aliquid quod sit magis antiquum, remotum, inopinatum, nee intel- ligunt iacere sensus in oratione, in qua verba lau- 32 dantur. Sit igitur cura elocutionis quam maxima, dum sciamus tamen nihil verborum causa esse faciendum, cum verba ipsa rerum gratia sint re- perta; quorum ea sunt maxime probabilia, quae sensum animi nostri optime promunt atque in animis 33 iudicum quod nos volumus efficiunt. Ea debent praestare sine dubio et admirabilem et iucundam orationem, verum admirabilem non sic, quomodo pro- digia miramur, et iucundam non deformi voluptate sed cum laude ac dignitate coniuncta. 1. Igitur, quam Graeci <f>pdariv vocant, Latine dici- mus elocutionem. Ea spectatur verbis aut singulis aut coniunctis. In singtdis intuendum est ut sint Latina, perspicua, ornata, ad id quod efficere volumus accommodata, in coniunctis, ut emendata, ut collo- 2 cata, ut figurata. Sed ea, quae de ratione Latine atque emendate loquendi ftierunt dicenda, in libro primo, cum de grammatice loqueremur, exsecuti sumus. Verum illic tantum ne vitiosa essent prae- cepimus; hie non alienum est admonere ut sint quam minime peregrina et externa. Multos enim, 194 BOOK VIII. Pn. 31-1. 2 discovered the best words for their purpose look for some word that is older, less familiar, and less obvious, since they cannot bring themselves to realise that when a speech is praised for its words, it implies that its sense is inadequate. While, then, 32 style calls for the utmost attention, we must always bear in mind that nothing should be done for the sake of words only, since words were invented merely to give expression to things : and those words are the most satisfactory which give the best expression to the thoughts of our mind and produce the effect which we desire upon the minds of the judges. Such words will assuredly be productive 33 of a style that will both give pleasure and awaken admiration ; and the admiration will be of a kind far other than that which we bestow on portents, while the pleasure evoked by the charm will have nothing morbid about it, but will be praiseworthy and dignified. I. What the Greeks call cfapacns, we in Latin call e/ocutio or style. Style is revealed both in individual words and in groups of words. As regards the former, we must see that they are Latin, clear, elegant and well-adapted to produce the desired effect. As regards the latter, they must be correct, aptly placed and adorned with suitable figures. I have already, 2 in the portions of the first book dealing with the subject of grammar, said all that is necessary on the way to acquire idiomatic and correct speech. But there my remarks were restricted to the pre- vention of positive faults, and it is well that I should now point out that our words should have nothing provincial or foreign about them. For you will find 195 QUINTILIAN quibus loquendi ratio non desit, invenias quos curiose potius loqui dixeris quam Latine, quomodo et ilia Attica anus Theophrastum, hominem alioqui disertis- simum, adnotata unius adfectatione verbi, hospitem dixit nee alio se id deprehendisse interrogata respon- 3 dit, quam quod nimium Attice loqueretur. Et in Tito Livio, mirae f'acundiae virOj putat inesse Pollio Asinius quandam Patavinitatem. Quare, si fieri po- test et verba omnia et vox huius alumnuni urbis oleant, ut oratio Roinana plane videatur, non civitate donata. II. Perspicuitas in verbis praecipuam habet pro- prietatem, sed proprietas ipsa non simpliciter aeci- pitur. Primus enim intellectus est sua cuiusque rei appellatio, qua non semper utemur ; nam et obscena 2 vitabimus et sordida et humilia. Sunt autem bumilia infra dignitatem rerum aut ordinis. In quo vitio cavendo non mediocriter errare quidam solent, qui omnia quae sunt in usuj1 etiamsi causae necessitas postulet, reformidant ; ut ille, qui in actione Ibericas herbas, se solo nequicquam intelligente, dicebat, nisi irridens hanc vanitatem Cassius Severus spartum 3 dicere eum velle indicasset. Nee video quare clarus orator duratos muria pisces nitidius esse crediderit 1 in, Regius : sine, MS8. 196 BOOK VIII. i. 2-n. 3 that there are a number of writers by no means deficient in style whose language is precious rather than idiomatic. As an illustration of my meaning I would remind you of the story of the old woman at Athens, who, when Theophrastus, a man of no mean eloquence, used one solitary word in an affected way, immediately said that he was a foreigner, and on being asked how she detected it, replied that his language was too Attic for Athens. Again Asinius Pollio held that Livy, for all his 3 astounding eloquence, showed traces of the idiom of Padua. Therefore, if possible, our voice and all our words should be such as to reveal the native of this city, so that our speech may seem to be of genuine Roman origin, and not merely to have been presented with Roman citizenship. II. Clearness results above all from propriety in the use of words. But propriety is capable of more than one interpretation. In its primary sense it means calling things by their right names, and is consequently sometimes to be avoided, for our language must not be obscene, unseemly or mean. Language may be described as mean when it is 2 beneath the dignity of the subject or the rank of the speaker. Some orators fall into serious error in their eagerness to avoid this fault, and are afraid of all words that are in ordinary use, even although they may be absolutely necessary for their purpose. There was, for example, the man who in the course of a speech spoke of "Iberian grass," a meaningless phrase intelligible only to himself. Cassius Severus, however, by way of deriding his affectation, explained that he meant Spanish broom. Nor do I see why 3 a certain distinguished orator thought " fishes con- 197 QUINTILIAN quam ipsum id quod vitabat.1 In hac autem pro- prietatis specie, quae nominibus ipsis cuiusque rei utitur, nulla virtus est, at quod ei contrarium est, vitium. Id apud nos impropriurn, axvpov apud 4 Graecos vocatur, quale est, tantum sperare dolorem, aut, quod in oratione Dolabellae emendatum a Cicerone adnotavi, mortem ferre, aut, qualia nunc laudantur a quibusdam, quorum est, de cruce verba ceciderunt. Non tamen quidquid non erit proprium, protinus et improprii vitio laborabit, quia primum omnium multa 5 sunt et Graece et Latine non denominata. Nam et, qui iaculum emittit, iaculari dicitur, qui pilam aut sudem, appellatione privatim sibi adsignata caret; et ut, lapidate quid sit, manifestum est, ita glebarum G testarumque iactus non habet nomen. Unde abusio, quae Kara^piqcns dicitur, necessaria. Translatio quo- que, in qua vel maximus est orationis ornatus, verba non suis rebus accommodat. Quare proprietas non ad nomen, sed ad vim significandi refertur nee 7 auditu, sed intellectu perpendenda est. Secundo modo dicitur proprium inter plura, quae sunt eius- 1 vitabat, Aldine ed. : videbat, MSS. 1 Probably salaam enta. * Aen. iv. 419. 3 Presumably in the sense, "He spoke like one in bodily pain." BOOK VIII. ii. 3-7 served in brine" a more elegant phrase than the word which he avoided.1 But while there is no special merit in the form of propriety which consists in calling things by their real names, it is a fault to fly to the opposite extreme. This fault we call impropriety, while the Greeks call it aicvpov. As 4 examples I may cite the Virgilian,2 " Never could I have hoped for such great woe," or the phrase, which I noted had been corrected by Cicero in a speech of Dolabella's, "To bring death," or again, phrases of a kind that win praise from some of our contemporaries, such as, " His words fell from the cross." 3 On the other hand, everything that lacks appropriateness will not necessarily suffer from the fault of positive impropriety, because there are, in the first place, many things which have no proper term either in Greek or Latin. For example, the 5 verb iaculari is specially used in the sense of " to throw a javelin," whereas there is no special verb appropriated to the throwing of a ball or a stake. So, too, while lapidare has the obvious meaning of "to stone," there is no special word to describe the throwing of clods or potsherds. Hence abuse or 6 catachresis of words becomes necessary, while meta- phor, also, which is the supreme ornament of oratory, applies words to things with which they have strictly no connexion. Consequently propriety turns not on the actual term, but on the meaning of the term, and must be tested by the touchstone of the understanding, not of the ear. The second sense 7 in which the word propriety is used occurs when there are a number of things all called bv the same name : in this case the original term from which the others are derived is styled the proper term. 199 QUINTILIAN dem nominis, id unde cetera ducta sunt ; ut vertex est contorta in se aqua vel quidquid aliud similiter vertitur, inde propter flexurn capillorum pars summa capitis, ex hoc id quod in montibus eminentissimum. Recte dixeris haec omnia vertices, proprie tamen 8 unde initium est. Sic soleae et turdi pisces et cetera. Tertius est huic diversus modus, cum res communis pluribus in uno aliquo habet nomen eximium, ut carmen funebre proprie naenia et tabernaculum ducis augurale. Item, quod commune et aliis nomen intellectu alicui rei peculiariter tribuitur, ut urbem Romam accipimus et venules novicios et Corinlhia aera, cum sint urbes aliae quoque et venalia multa et tarn aurum et argentum quam aes Corinthium. Sed ne 9 in his quidem virtus oratoris inspicitur. At illud iam non mediocriter probandum, quod hoc etiam laudari modo solet, ut proprie dictum, id est, quo nihil inveniri possit significantius : ut Cato dixit, C. Caesarem ad evertendam rem publicum sobrium acces- sisse j ut Virgilius deduct um carmen, et Horatius acrevi 10 tilriam Hannibalemque dirum.. In quo modo illud 1 Lit. i. e. in the proper sense the sole of the foot and a thrush. 2 Suet. Cues. 53. 3 Ed. vi. 5. 4 Odes I. xii. 1, and in. vi. 36. BOOK VIII. n. 7-10 For example, the word vertex means a whirl of water, or of anything else that is whirled in a like manner : then, owing to the fashion of coiling the hair, it comes to mean the top of the head, while finally, from this sense it derives the meaning of the highest point of a mountain. All these things may correctly be called vertices, but the proper use of the term is the first. So, too, solea and tardus 8 are employed as names of fish, to mention no other cases.1 The third kind of propriety is found in the case where a thing which serves a number of purposes has a special name in some one par- ticular context ; for example, the proper term for a funeral song is naenia, and for the general's tent augurale. Again, a term which is common to a number of things may be applied in a proper or special sense to some one of them. Thus we use urbs in the special sense of Rome, venales in the special sense of newly-purchased slaves, and Cor- inthia in the special sense of bronzes, although there are other cities besides Rome, and many other things which may be styled venales besides slaves, and gold and silver are found at Corinth as well as bronze. But the use of such terms implies no special excellence in an orator. There 9 is, however, a form of propriety of speech which deserves the highest praise, that is to say, the employment of words with the maximum of signi- ficance, as, for instance, when Cato2 said that " Caesar was thoroughly sober when he undertook the task of overthrowing the constitution," or as Virgil3 spoke of a " thin-drawn strain," and Horace* of the "shrill pipe," and "dread Hannibal." Some 10 also include under this head that form of pro- QUINTILIAN quoque est a quibusdam traditum proprii genus ex appositis (epitheta dicuntur) : ut dulcis musti et cum dentibus albis. De quo genere alio loco dicendum 1 1 est. Etiam quae bene translata sunt propria dici solent. Interim autem quae sunt in quoque prae- cipua proprii locum accipiunt, ut Fabius inter plures imperatorias virtutes Cunctalor est appellatus. Pos- sunt videri verba, quae plus significant quam elo- quuntur, in parte ponenda perspicuitatis ; intellectum enim adiuvant. Ego tamen libentius emphasin retu- lerim ad ornatum orationis, quia non ut intelligatur efficit, sed ut plus intelligatur. 1 2 At obscuritas fit verbis iam 1 ab usu remotis : ut si commentaries quis pontificum et vetustissima foedera et exoletos scrutatus auctores id ipsum petat ex his quae inde contraxerit, quod non intelliguntur. Hinc enim aliqui famam eruditionis adfectant, ut quaedam 13 soli scire videantur. Fallunt etiam verba vel regioni- bus quibusdam magis familiaria vel artium propria, ut Atabulus ventus et navis saccaria et in mah cosa- num.2. Quae vel vitanda apud iudicem ignarum significationum earum vel interpretanda sunt, sicut 1 iam, Halm: etiam, AG. 2 The meaning is not known and no satisfactory emendation has been made. 1 Georg. i. 295 and Aen. xi. G81. 2 Sc. ch. vi. 3 See ix. ii. 64. 4 An Apulian term for the Scirocco. What is the peculi- arity of a sack-ship is unknown. It is possible that with Haupt we should read stlataria, "a broad-beamed merchant- vessel. BOOK VIII. ii. 10-13 priely which is derived from characteristic epithets, such as in the Virgilian l phrases, "sweet unfer- mented wine," or "with white teeth." But of this sort of propriety I shall have to speak else- where.2 Propriety is also made to include the appro- 11 priate use of words in metaphor, while at times the salient characteristic of an individual comes to he attached to him as a proper name : thus Fabius was called " Cunctator," the Delayer, on account of the most remarkable of his many military virtues. Some, perhaps, may think that words which mean more than they actually say deserve mention in connexion with clearness, since they assist the understanding. I, however, prefer to place emphasis3 among the ornaments of oratory, since it does not make a thing intelligible, but merely more intelligible. Obscurity, on the other hand, results from the 12 employment of obsolete words, as, for instance, if an author should search the records of the priests, the earliest treaties and the works of long-forgotten writers with the deliberate design of collecting words that no man living understands. For there are persons who seek to gain a reputation for erudi- tion by such means as this, in order that they may be regarded as the sole depositories of certain forms of knowledge. Obscurity may also be pro- 13 duced by the use of words which are more familiar in certain districts than in others, or which are of a technical character, such as the wind called "Atabalus,"4 or a "sack-ship," or in vialo cosanum. Such expressions should be avoided if we are plead- ing before a judge who is ignorant of their meaning, or, if used, should be explained, as may have to be done in the case of what are called homonyms. For 203 QUINTILIAN in his, quae homonyma vocantur : ut, Taurus animal sit an mons an signum in coelo an nomen hominis an radix arboris, nisi distinctum non intelligetur. 14 Plus tamen est obscuritatis in contextu et conti- nuatione sermonis et plures modi. Quare nee sit tarn longus, ut eum prosequi non possit intentio, nee traiectione vel ultra modum 1 hyperbato finis eius differatur. Quibus adhuc peior est mixtura verborum, qualis in illo versu. Saxa vocant Itali, mediis quae in Jluctibus, aras. 15 Etiam interiectione (qua et oratores et historici fre- quenter utuntur, ut medio sermone aliquem inserant sensum) impediri solet intellectus, nisi quod interpo- nitur breve est. Nam Vergilius illo loco, quo pullum equinum describit, cum dixisset, Nee vanos horret strepitus, compluribus insertis alia figura quinto demum versu redit, Turn, si qua sonum procul anna dedere, Stare loco nescit. 16 Vitanda in primis ambiguitas, non haec solum, de cuius genere supra dictum est, quae incertum intel- lectum facit, ut Chremetem audivi percussisse Demean, 1 transiectione vel ultra modum,' Spalding: transiectio intra modum (domum G ), AG. 1 Reference unknown. * See vm. vi. 62. 3 A en. i. 109. The awkwardness of the order cannot be brought out in English. * Georg. iii. 79-83. * See vn. ix. 10. 204 BOOK VIII. ii. 13-16 example, the word taunts may be unintelligible un- less we make it clear whether we are speaking of a bull, or a mountain, or a constellation, or the name of a man, or the root of a tree.1 A greater source of obscurity is, however, to be 14 found in the construction and combination of words, and the ways in which this may oecur are still more numerous. Therefore, a sentence should never be so long that it is impossible to follow its drift, nor should its conclusion be unduly postponed by trans- *AP • position or an excessive use of hyperbaton? Still - ■, \ .- ^ worse is the result when the order of the words is confused as in the line 3 j(r " In the midmost sea Rocks are there by Italians altars called." Again, parenthesis, so often employed by orators 15 and historians, and consisting in the insertion of one sentence in the midst of another, may seriously hinder the understanding of a passage, unless the insertion is short. For example, in the passage where Vergil 4 describes a colt, the words " Nor fears he empty noises," are followed by a number of remarks of a totally different form, and it is only four lines later that the poet returns to the point and says, " Then, if the sound of arms be heard afar, How to stand still he knows not." Above all, ambiguity must be avoided, and by 16 ambiguity I mean not merely the kind of which I have already spoken, where the sense is uncertain, as in the clause Chremetem audivi percussisse Demean,5 QUINTILIAN sed ilia quoque, quae, etiamsi turbare non potest sensum, in idem tamen verborum vitium incidit, ut si quis dicat, visum a se hominem librum scribentem. Nam etiamsi librum ab homine scribi patet, male tamen composuerit feceritque ambiguum, quantum in ipso fuit. • 17 Est etiam in quibusdam turba inanium verborum, qui, dum communem loquendi morem reformidant, ducti specie nitoris circumeunt omnia copiosa lo- quacitate, eo quod1 dicere nolunt ipsa2 ; deinde illam seriem cum alia simili iungentes miscentesque, ultra 18 quam ullus spiritus durare possit, extendunt. In hoc malum a quibusdam etiam laboratur; neque id novum vitium est, cum iam apud Titum Livium inveniam fuisse praeceptorem aliquem, qui discipulos obscurare quae dicerent iuberet, Graeco verbo utens (tkotutov. Unde ilia scilicet egregia laudatio : Tanto 19 melior ; ne ego ijuidem intellexi. Alii brevitatem ae- mulati necessaria quoque orationi subtrahunt verba et, velut satis sit scire ipsos quid dicere velint, quantum ad alios pertineat, nihil putant. At ego otiosum sermonem dixerim, quern auditor suo ingenio intelligit. Quidam, emutatis in perversum dicendi 1 eo quod, Halm : et quod or et quae, MSS. 2 ipsa ; deinde, Christ : ipsam deinde, MSS. 1 i. e. and not the man by the book ! 2 Perhaps in his letter to his son, for which see n. v. 20. 206 BOOK VIII. ii. 16-19 but also that form of ambiguity which, although it does not actually result in obscuring the sense, falls into the same verbal error as if a man should say visum a se hominem librum scribentem (that he had seen a man writing a book). For although it is clear that the book was being written by the man,1 the sentence is badly put together, and its author has made it as ambiguous as he could. Again, some writers introduce a whole host of 17 useless words ; for, in their eagerness to avoid ordinary methods of expression, and allured by false ideals of beauty they wrap up everything in a multitude of words simply and solely because they are unwilling to make a direct and simple state- ment of the facts : and then they link up and involve one of those long-winded clauses with others like it, and extend their periods to a length beyond the compass of mortal breath. Some even expend 13 an infinity of toil to acquire this vice, which, by the way, is nothing new : for I learn from the pages of Livy2 that there was one, a teacher, who instructed his pupils to make all they said obscure, using the Greek word <tk6ti<tov ("darken it.") It was this same habit that gave rise to the famous words of praise, " So much the better : even I could not understand you." Others are consumed with a 19 passion for brevity and omit words which are actually necessary to the sense, regarding it as a matter of complete indifference whether their mean- ing is intelligible to others, so long as thev know what they mean themselves. For my own part, I regard as useless words which make such a demand upon the ingenuity of the hearer. Others, again, succeed in committing the same fault by a per- 207 QUINTILIAN 20 figuris, idem vitium consequuntur. Pessima vero sunt aSiavorjTa, hoc est, quae verbis aperta occultos sensus habent, ut cum ductus est caecus secundum viam stare,1 et, qui suos artus morsu lacerasset, 21 fingitur in scholis supra se cubasse. Ingeniosa haec et fortia et ex ancipiti diserta creduntur, pervasitque2 iam multos ista persuasio, ut id iam demum eleganter atque exquisite dictum putent, quod interpretandum sit. Sed auditoribus etiam nonnullis grata sunt haec, quae cum intellexerunt acumine suo delectantur et gaudent, non quasi audierint sed quasi invenerint. 22 Nobis prima sit virtus perspicuitas, propria verba, rectus ordo, non in longum dilata conclusio, nihil neque desit neque superfluat: ita sermo et doctis probabilis et planus imperitis erit. Haec eloquendi observatio. Nam rerum perspicuitas quo modo prae- 23 standa sit, diximus in praeceptis narrationis. Similis autem ratio est in omnibus. Nam si neque pauciora quam oportet neque plura neque inordinata aut indistincta dixerimus, erunt dilucida et negligenter quoque audientibus aperta ; quod et ipsum in consilio 1 cum ductus, A : conductus, G : cum dictns, Spalding : viam A : vitam, G. This sentence is unintelligible. Halm reads cum dictus est caecus secundum vitam (G.) stare, which might conceivably be intended to mean ' as when the blind man was said to stand there to gain his living, ' a rare icse of vita. 2 pervasitque, Badius : persuasitque, MSS. 1 Like a wild beast devouring his prey. 2oS BOOK VIII. ii. 19-23 verse misuse of figures. Worst of all are the 20 phrases which the Greeks call dhiavorjra, that is to say, expressions which, though their meaning is obvious enough on the surface, have a secret mean- ing, as for example in the phrase cum ductus est cnecus secundum viam stare, or where the man, who is supposed in the scholastic theme to have torn his oAvn limbs- with his teeth, is said to have lain upon himself.1 Such expressions are regarded as ingenious, 21 daring and eloquent, simply because of their ambi- guity, and quite a number of persons have become infected by the belief that a passage which requires a commentator must for that very reason be a masterpiece of elegance. Nay, there is even a class of hearer who find a special pleasure in such pas- sages ; for the fact that they can provide an answer to the riddle fills them with an ecstasy of self-con- gratulation, as if they had not merely heard the phrase, but invented it. For my own part, I regard clearness as the first 22 essential of a good style : there must be propriety in our words, their order must be straightforward, the conclusion of the period must not be long post- poned, there must be nothing lacking and nothing superfluous. Thus our language will be approved by the learned and clear to the uneducated. I am speaking solely of clearness in style, as I have already dealt with clearness in the presentation of facts in the rules I laid down for the statement of the case. But the general method is the same 23 in both. For if what we say is not less nor more than is required, and is clear and systematically arranged, the whole matter will be plain and obvious even to a not too attentive audience. For we must 209 QUINTILIAN est habendum, non semper tam esse acrem iudicis intentionem, ut obscuritatem apud se ipse discutiat et tenebris orationis inferat quoddam intelligentiae suae lumen, sed multis eum frequenter cogitationibus avocari, nisi tam clara fuerint, quae dicemus, ut in animum eius oratio, ut sol in oculos, etiamsi in earn 24 non intendatur, incurrat. Quare non, ut intelligere possit, sed, ne omnino possit non intelligere, cur- andum. Propter quod etiam repetimus saepe, quae non satis percepisse eos qui cognoscunt putamus : Quae causa utique nostra culpa dicta obscurius est : ad planiora et communia magis verba dcscendimus ; cum id ipsum optime fiat, quod nos aliquid non optime fecisse simulamus. III. Venio nunc ad ornatum, in quo sine dubio plus quam in ceteris dicendi partibus sibi indulget orator. Nam emendate quidem ac lucide dicentium tenue praemium est, magisque ut vitiis carere quam ut aliquam magnam virtutem adeptus esse videaris. 2 Inventio cum imperitis saepe communis, dispositio modicae doctrinae credi potest ; si quae sunt artes altiores, plerumque occultantur, ut artes sint ; deni- que omnia haec ad utilitatem causarum solam refe- renda sunt. Cultu vero atque ornatu se quoque 210 BOOK VIII. ii. 23-m. 2 never forget that the attention of the judge is not always so keen that he will dispel obscurities with- out assistance, and bring the light of his intelligence to bear on the dark places of our speech. On the contrary, he will have many other thoughts to dis- tract him unless what we say is so clear that our words will thrust themselves into his mind even when he is not giving us his attention, just as the sunlight forces itself upon the eyes. Therefore 24 our aim must be not to put him in a position to understand our argument, but to force him to understand it. Consequently we shall frequently repeat anything which we think the judge has failed to take in as he should. We shall say, for example, " I fear that this portion of our case has been somewhat obscurely stated : the fault is mine, and I will therefore re-state it in plainer and simpler language " ; for the pretended admission of a fault on our part creates an excellent impression. III. I now come to the subject of ornament, in which, more than in any other department, the orator undoubtedly allows himself the greatest indulgence. For a speaker wins but trifling praise if he does no more than speak with correctness and lucidity ; in fact his speech seems rather to be free from blemish than to have any positive merit. Even the un- 2 trained often possess the gift of invention, and no great learning need be assumed for the satisfactory arrangement of our matter, while if any more recondite art is required, it is generally concealed, since unconcealed it would cease to be an art, while all these qualities are employed solelv to serve the interests of the actual case. On the other hand, by the employment of skilful ornament the orator 211 QUINTILIAN commendat ipse qui dicit et in ceteris indicium doctorum, in hoc vero etiam popularem laudem petit, nee fortibus modo, sed etiam fulgentibus armis 3 proeliatur. An x in causa Cicero Cornelii consecutus esset docendo iudicem tantum et utiliter demum ac Latine perspicueque dicendo, ut populus Romanus admirationem suam non acclamatione tantum, sed etiam plausu confiteretur ? Sublimitas profecto et magnificentia et nitor et auctoritas expressit ilium 4 fragorem. Nee tam insolita laus esset prosecuta dicentem, si usitata et ceteris similis fuisset oratio. Atque ego illos credo, qui aderant, nee sensisse quid facerent nee sponte iudicioque plausisse, sed velut mente captos et quo essent in loco ignaros erupisse in hunc voluptatis adfectum. 5 Sed ne causae quidem parum confert idem hie orationis ornatus. Nam, qui libenter audiunt, et magis attendunt et facilius credunt, plerumque ipsa delectatione capiuntur, nonnunquam admiratione auferuntur. Nam et ferrum ipsum2 adfert oculis terroris aliquid, et fulmina ipsa non tam nos con- funderent, si vis eorum tantum, non etiam ipse fulgor 6 timeretur. Recteque Cicero his ipsis ad Brutum 1 An, added by Spalding. 2 ipsum, added by Christ. 1 Now lost. BOOK VIII. m. 2-6 commends himself at the same time, and whereas his other accomplishments appeal to the considered judgment of the learned, this gift appeals to the enthusiastic approval of the world at large, and the speaker who possesses it fights not merely with effective, but with flashing weapons. If in his defence of Cornelius Cicero had confined himself merely to instructing the judge and speaking in clear and idio- matic Latin without a thought beyond the interests of his case, would he ever have compelled the Roman people to proclaim their admiration not merely by acclamation, but by thunders of applause ? No, it was the sublimity and splendour, the brilliance and the weight of his eloquence that evoked such clamor- ous enthusiasm. Nor, again, would his words have been greeted with such extraordinary approbation if his speech had been like the ordinary speeches of every day. In my opinion the audience did not know what they were doing, their applause sprang neither from their judgment nor their will ; they were seized with a kind of frenzy and, unconscious of the place in which they stood, burst forth spontaneously into a perfect ecstasy of delight. But rhetorical ornament contributes not a little to the furtherance of our case as well. For when our audience find it a pleasure to listen, their attention and their readiness to believe what they hear are both alike increased, while they are generally filled with delight, and sometimes even transported by admiration. The flash of the sword in itself strikes something of terror to the eye, and we should be less alarmed by the thunderbolt if we feared its violence alone, and not its flash as well. Cicero was right when, in one of his letters l to Brutus, he 213 QUINTILIAN verbis quadam in epistola seribit, Nam eloquentiam, quae admiralionem non habet, nullam iudico. Eandem Aristoteles quoque petendam maxime putat. Sed hie ornatus (repetam enim) virilis et fortis et sanctus sit nee effeminatam levitatem et fueo emen- 7 titum colorem amet, sanguine et viribus niteat. Hoc autem adeo verum est ut, cum in hac maxime parte sint vicina virtutibus vitia, etiam, qui vitiis utuntur, virtutum tamen iis nomen imponant. Quare nemo ex corruptis dicat me inimicum esse culte dicentibus. Non banc esse virtutem nego, sed illis earn non 8 tribuo. An ego fundum cultiorem putem, in quo mihi quis ostenderit lilia et violas et anemonas, fontes surgentes, quam ubi plena messis aut graves fructu vites erunt? Sterilem platanum tonsasque myrtos quam maritam ulmum et uberes oleas praeoptaverim ? Habeant ilia divites licet, quid essent, si aliud nihil 9 haberent? Nullusne ergo etiam frugiferis adhi- bendus est decor ? Quis negat ? Nam et in ordi- nem certaque intervalla redigam meas arbores. Quid illo quincunce speciosius qui, in quamcunque partem spectaveris, rectus est? Sed protinus in id quoque prodest, ut terrae sucum aequaliter trahat. 10 Sur<rentia in altum cacumina oleae ferro coercebo ; 1 llhet. in. ii. 5. 2 In the introduction to this book, 19. 8 Quincunx. The formation may be thus represented 214 BOOK VIII. in. 6-10 wrote, " Eloquence which evokes no admiration is, in my opinion, unworthy of the name." Aristotle1 likewise thinks that the excitement of admiration should be one of our first aims. But such ornament must, as I have already said,2 be bold, manly and chaste, free from all effeminate smoothness and the false hues derived from artificial dyes, and must glow with health and vigour. So true 7 is this, that although, where ornament is concerned, vice and virtue are never far apart, those who employ a vicious style of embellishment disguise their vices with the name of virtue. Therefore let none of our decadents accuse me of being an enemy to those who speak with grace and finish. I do not deny the existence of such a virtue, I merely deny that they possess it. Shall I regard a farm as a model of good 8 cultivation because its owner shows me lilies and violets and anemones and fountains of living water in place of rich crops and vines bowed beneath their clusters ? Shall I prefer the barren plane and myrtles trimly clipped, to the fruitful olive and the elm that weds the vine ? No, let such luxuries delight the rich : but where would their wealth be if they had nought save these ? Again, is beauty an object of no con- 9 sideration in the planting of fruit trees ? Certainly not ! For my trees must be planted in due order and at fixed intervals. What fairer sight is there than rows of trees planted in echelon 8 which present straight lines to the eye from whatever angle they be viewed ? But it has an additional advantage, since this form of plantation enables every tree to derive an equal share of moisture from the soil. When the 10 tops of my olive trees rise too high, I lop them away, with the result that their growth expands laterally 215 QUINTILIAN in orbem se formosius fundet et protinus fructum ramis pluribus feret. Decentior equus, cuius ad- stricta ilia, sed idem velocior. Pulcher aspectu est 1 athleta, cuius lacertos exercitatio expressit, idem 1 1 certamini paratior. Nunquam vera species ab utili- tate dividitur. Sed hoc quidem discernere modici iudicii est. Illud observatione dignius, quod hie ipse honestus ornatus materiae genere esse debebit2 variatus. Atque, ut a prima divisione ordiar, non idem demon- strativis et deliberativis et iudicialibus causis con- veniet. Namque illud genus ostentationi compo- situm solam petit audientium voluptatem, ideoque omnes dicendi artes aperit ornatumque orationis exponit, ut quod non insidietur nee ad victoriam sed 12 ad solum finem laudis et gloriae tendat. Quare, quidquid erit sententiis populare, verbis nitidum, figuris iucundum, translationibus magnificum, compo- sitione elaboratum, velut institor quidam eloquentiae intuendum et paene pertractandum dabit. Nam 13 eventus ad ipsum, non ad causam refertur. At ubi res agitur et vera dimicatio est, ultimus sit famae locus. Praeterea ne decet quidem, ubi maxima rerum momenta versantur, de verbis esse sollicitum. 1 est, Halm : sit, MSS. * esse debebit, Halm: decidit, AG. 2l6 BOOK VIII. m. 10-13 in a manner that is at once more pleasing to the eye and enables them to bear more fruit owing to the increase in the number of branches. A horse whose Hanks are compact is not only better to look upon, but swifter in speed. The athlete whose muscles have been formed by exercise is a joy to the eye, but he is also better fitted for the contests in which he must engage. In fact true beauty and usefulness 11 always go hand in hand. It does not, however, require any special ability to discern the truth of this. It is more important to note that such seemly ornament must be varied to suit the nature of the material to which it is applied. To begin with the primary classification of oratory, the same form of ornament will not suit demon- strative, deliberative and forensic speeches. For the oratory of display aims solely at delighting the audience, and therefore develops all the resources of eloquence and deploys all its ornament, since it seeks not to steal its way into the mind nor to wrest the victory from its opponent, but aims solely at honour and glory. Consequently the orator, like the hawker 12 who displays his wares, will set forth before his audience for their inspection, nay, almost for their handling, all his most attractive reflexions, all the brilliance that language and the charm that figures can supply, together with all the magnificence of metaphor and the elaborate art of composition that is at his disposal. For his success concerns himself, and not his cause. But when it is a question of facts, 13 and he is confronted by the hard realities of battle, his last thought will be for his personal glory. Nay, it is even unseemly to trouble overmuch about words when the greatest interests are at stake. I would 217 QUINTILIAN Neque hoc eo pertinet, ut in his nullus sit ornatus, sed uti pressior et severior et minus confessus, prae- 14 cipue materiae accommodatus. Nam et in suadendo suhlimius aliquid senatus, concitatius populus, et in iudiciis publicae capitalesque causae poscunt accu- ratius dicendi genus. At privatum consilium causas- que paucorum, ut frequenter accidit, calculorum purus sermo et dissimilis curae magis decuerit. An non pudeat certam creditam periodis postulare aut circa stillicidia adfici aut in mancipii redhibitione sudare ? 15 Sed ad propositum. Et quoniam orationis tarn ornatus quam perspicuitas aut in singulis verbis est aut in pluribus positus, quid separata, quid iuncta exigant, consideremus. Quanquam enim rectissime traditum est, perspicuitatem propriis, ornatum trans- latis verbis magis egere, sciamus nihil ornatum esse 1G quod sit improprium. Sed cum idem frequentissime plura significent (quod awww/xia vocatur), iam sunt aliis alia honestiora, sublimiora, nitidiora, iucundiora, vocaliora. Nam ut syllabae e litteris melius sonan- tibus clariores sunt, ita verba e syllabis magis vocalia et, quo plus quodque spiritus habet, auditu pulchrius. 218 BOOK VIII. in. 13-16 not assert that such themes afford no scope for ornament, hut such ornament as is employed must he of a more severe, restrained and less ohvious character ; ahove all, it must be adapted to the matter in hand. For whereas in deliberative oratory 14 the senate demand a certain loftiness and the people a certain impetuosity of eloquence, the public cases of the courts and those involving capital punishment demand a more exact style. On the other hand, in private deliberations and lawsuits about trifling sums of money (and there are not a few of these) it is more appropriate to employ simple and apparently un- studied language. For we should be ashamed to demand the repayment of a loan in rolling periods, or to display poignant emotion in a case concerned with water-droppings, or to work ourselves into a per- spiration over the return of a slave to the vendor. But I am wandering from the point. Since rhetorical ornament, like clearness, may 15 reside either in individual words or groups of words, we must consider the requirements of both cases. For although the canon, that clearness mainly requires propriety of language and ornament the skilful use of metaphor, is perfectly sound, it is desirable that we should realise that without pro- priety ornament is impossible. But as several words IG may often have the same meaning (they are called synonyms), some will be more distinguished, sub- lime, brilliant, attractive or euphonious than others. For as those syllables are the most pleasing to the ear which are composed of the more euphonious letters, thus words composed of such syllables will sound better than others, and the more vowel sounds they contain the more attractive they will be to hear. 219 QUINTILIAN Et quod facit syllabarum, idem verborum quoque inter se copulatio, ut aliud alii iunctum melius sonet. 17 Diversus tamen usus. Nam rebus atrocibus verba etiam ipso auditu aspera magis convenient. In uni- versum quidem optima simplicium creduntur, quae aut maxime exclamant aut sono sunt iucundissima. Et honesta quidem turpibus potiora semper nee sor- 18 didis unquam in oratione erudita locus. Clara ilia atque sublimia plerumque materiae modo discernenda sunt. Quod alibi magnificum, tumidum alibi, et quae humilia circa res magnas, apta circa minores videntur. Ut autem in oratione nitida notabile humilius verbum et velut macula, ita a sermone tenui sublime nitidumque discordat fitque corrup- 19 turn, quia in piano tumet. Quaedam non tarn ratione quam sensu iudicantur, ut illud, Caesa iungebant foedera porca, fecit elegans fictio nominis, quod si fuisset porco, vile erat. In quibusdam ratio manifesta est. Kisimus, et merito nuper poetam, qui dixerat Praetextam in cista mures rosere camilli. 1 Aen. viii. C41. 1 Camillus originally means a " young boy." 220 BOOK VIII. m. 16-19 The same principle governs the linking of word with word ; some arrangements will sound better than others. But words require to be used in different 17 ways. For example, horrible things are best de- scribed bv words that are actually harsh to the ear. But as a general rule it may be laid down that the best words, considered individually, are those which are fullest or most agreeable in sound. Again, elegant words are always to be preferred to those which are coarse, and there is no room for low words in the speech of a cultivated man. The choice of striking or sublime words will be 18 determined by the matter in hand ; for a word that in one context is magnificent may be turgid in another, and words which are all too mean to describe great things may be suitable enough when applied to subjects of less importance. And just as a mean word embedded in a brilliant passage attracts special attention, like a spot on a bright surface, so if our style be of a plain character, sublime and brilliant words will seem incongruous and tasteless excrescences on a flat surface. In 19 some cases instinct, and not reason, must supply the touchstone, as, for example, in the line : 1 "A sow was slain to ratify their pacts." Here the poet, by inventing the word porca, suc- ceeded in producing an elegant impression, whereas if he had used the masculine porcus, the very reverse would have been the case. In some cases, however, the incongruity is obvious enough. It was only the other day that we laughed with good reason at the poet who wrote : "The youngling mice had gnawed Within its chest the purple-bordered gown.2" QUINTILIAN 20 At Vergilii miramur illud, Saepe exiguus mus. Nam epitheton l proprium effecit, ne plus exspecta- remus, et casus singularis magis decuit, et clausula ipsa unius syllabae non usitata addidit gratiam. Imitatus est itaque utrumque Horatius, Nascetur ridiculus mus. 21 Nee augenda semper oratio sed summittenda non- nunquam est. Vim rebus aliquando verborum ipsa humilitas adfert. An, cum dicet in Pisonem Cicero, Cum tibi tola cognatio serraco advehatur, incidisse videtur in sordidum nomen, non eo contemptum hominis, quern destructum volebat, auxisse ? Et 22 alibi, Caput opponis, cum eo coruscans.2 Unde in- terim gratus fit iocis decor,3 qualis est ille apud M. Tullium Pusio, qui cum maiore sorore cubitabat, et, Flavius, qui cornicum oculos confixit, et pro Milone illud Hetis tu Rti/io, et Erucius Antoniaster. Id tamen in declamatoribus est notabilius laudarique me puero solebat, Da patri panem ; et in eodem, Etiam canem 23 pascis. Res quidem praecipue in scholis anceps et 1 Epitheton is followed by the words exiguus aptum, which are bracketed as a gloss by Christ. 2 coruscans, IV. Freund: conificans, MSS. 3 gratus fit iocis decor, Christ : grati idiotis de quo, AG. 1 Georg. i. 181. 2 A. P. 139. 8 Fr. 10. 4 pro L'ael. xv. 36. 5 pro Mur. xi. 25. Our equivalent is "catch a weasel asleep." 6 pro Mil. xxii. 60. Rufio, a slave name = red head. 7 From the lost pro Vareno. "Erucius, Antonius' ape." 8 A declamation turning on the law that sons must support their parents. 222 BOOK VIII. hi. 20-23 On the other hand, we admire Virgil 1 when he 20 says : " Oft hath the tiny mouse," etc. For here the epithet is appropriate and prevents our expecting too much, while the use of the singular instead of the plural, and the unusual monosyllabic conclusion of the line, both add to the pleasing effect. Horace 2 accordingly imitated Virgil in both these points, when he wrote, "The fruit shall be a paltry mouse." Again, our style need not always dwell on the 21 heights : at times it is desirable that it should sink. For there are occasions when the very meanness of the words employed adds force to what we say. When Cicero, in his denunciation of Piso,3 says, " When your whole family rolls up in a dray," do you think that his use of the word dray was accidental, and was not designedly used to increase his audience's contempt for the man he wished to bring to ruin : The same is true when he says elsewhere, " You put down your head and butt him." This device may also 22 serve to carry off a jest, as in the passage of Cicero where he talks of the " little sprat of a boy who slept with his elder sister," * or where he speaks of" Flavius, who put out the eyes of crows," 5 or, again, in the pro Milone,6 cries, " Hi, there ! Rufio ! " and talks of "Erucius Antoniaster." 7 On the other hand, this practice becomes more obtrusive when employed in the schools, like the phrase that was so much praised in my boyhood, U Give your father bread," or in the same declamation, " You feed even your dog." 8 But such tricks do not always come off, especially in 23 223 QUINTILIAN frequenter causa risus, nunc utique, cum haec exerci- tatio procul a veritate seiuncta laboret incredibili verborum fastidio ac sibi magnam partem sermonis absciderit. 24 Cum sint autem verba propria, ficta, translata, pro- priis dignitatem dat antiquitas. Namque et sancti- orem et magis admirabilem faciunt orationem, quibus non quilibet fuerit usurus, eoque ornamento acerrimi 25 iudicii P. Vergilius unice est usus. Olli enim et quianam et moerus J et pone et pellacia 2 aspergunt illam, quae etiam in picturis est gratissima, vetustatis inimitabilem arti auctoritatem. Sed utendum modo, nee ex ultimis tenebris repetenda. Satis est vetus quaeso ; quid necesse est quaiso 3 dicere ? oppido quidem4 usi sunt paulum tempore nostro superiores, vereor, ut iam nos ferat quisquam ; certe anlegerio, cuius eadem significatio est, nemo nisi ambitiosus 25 utetur. Acrumnosumb quid opus est? tanquam parum sit, si dicatur quid horridum. Reor tolerabile, aulumo tragicum, prolem dicere inusitatum est,6 pro- sapiam insulsum. Quid multa ? totus prope mutatus 27 est sermo. Quaedam tamen adhuc vetera vetustate 1 moerus, 0. Bibbeck: mus, AG. 2 pellacia, Bibbeck : pollicerent or policent, MSS. 3 quaiso, Gerlz: quam, MSS. * quidem, Halm : quam, MSS. 8 aerumnosum, Zumpt: erumnas, AG. * dicere inusitatum est, Halm : dicendi versum ei, AG. 1 Archaic for Mi. * Because. 8 Archaic for murus (Aen. x. 24.). * Behind. 8 Deceitfulness (Aen. ii. 90). 6 quaeso = pray, oppido = quite, exactly. 224 BOOK VIII. hi. 23-27 the schools, and often turn the laugh against the speaker, particularly in the present day, when de- clamation has become so far removed from reality and labours under such an extravagant fastidiousness in the choice of words that it has excluded a good half of the language from its vocabulary. Words are proper, newly-coined or metaphorical. In 24 the case of proper words there is a special dignity conferred by antiquity, since old words, which not everyone would think of using, give our style a venerable and majestic air : this is a form of ornament of which Virgil, with his perfect taste, has made unique use. For his employment of words such as 25 olli,1 qaianam,2 moerns,3 pone* and pellaciab gives his work that impressive air of antiquity which is so attractive in pictures, but which no art of man can counterfeit. But we must not overdo it, and such words must not be dragged out from the deepest darkness of the past. Quaeso is old enough : what need for us to say quaiso ? 6 Oppido was still used by my older contemporaries, but I fear that no one would tolerate it now. At any rate, anlegerio,7 which means the same, would certainly never be used by anyone who was not possessed with a passion for notoriety. What need have we of aeruninosum ? 8 It 26 is surely enough to call a thing korridum. Reor mav be tolerated, autumo 9 smacks of tragedy, proles 10 has become a rarity, while prosapia u stamps the man who uses it as lacking taste. Need I say more ? Almost the whole language has changed. But there 27 are still some old words that are endeared to us by 7 Quite, very. 8 Wretched. • Assert. 10 Offspring. n Stock, family. 225 I QUINTILIAN ipsa gratius nitent, quaedam et necessario interim sumuntur, ut nuncupare et fari; multa alia etiam audentius inseri possunt sed ita demum, si non appareat adfectatio, in quam mirifice Vergilius : 28 Corinthiorum amalor iste verboruvi, Thuci/dides Britannus, Atticae febris, Tau Gallicum, al, min, et sil ut male elisit ; 1 Ita omnia ista verba miscuit fratri. 29 Cimber hie fuit, a quo fratrem necatum hoc Cieeronis dicto notatum est, Germanum Cimber occidit. Nee minus noto Sallustius epigrammate incessitur: Et verba antiqui mult um f urate Catonis, Crispe, Iugurlkinae conditor historiae. 30 Odiosa cura ; nam et cuilibet facilis et hoc pessima, quod eius2 studiosus non verba rebus aptabit, sed res extrinsecus arcesset, quibus haec verba conveniant. Fingere, ut primo libro dixi, Graecis magis conces- sum est, qui sonis etiam quibusdam et adfectibus non dubitaverunt nomina aptare, non alia libertate quam qua illi primi homines rebus appellationes dederunt. 31 Nostri autem in iungendo aut in derivando paulum 1 al min et sil ut male elisit, Schenlcl following Wagner : enim et spinet male illisit and the like, MSti. See Ausonius, Idyll xii. Grammaticomast 5. For sil Biicheler would read sphin. * eius, Gesner : rei, AG. 1 Name, speak. 2 Galal. ii. 8 Phil. XI. vi. 14. A pun on the two meanings of germanus, brother and German. * i. v. 70. 226 BOOK VIII. in. 27-31 their antique sheen, while there are others that we cannot avoid using occasionally, such, for example, as nuncupare and fart1: there are yet others which it requires some daring to use, but which may still be employed so long as we avoid all appearance of that affectation which Virgil 2 has derided so cleverly : " Britain's Thucydides, whose mad Attic brain 28 Loved word-amalgams like Corinthian bronze, First made a horrid blend of words from Gaul, Tau, al, min, sil and God knows how much else, Then mixed them in a potion for his brother ! " This was a certain Cimber who killed his brother, 29 a fact which Cicero recorded in the words, a Cimber has killed his brother German."3 The epigram against Sallust is scarcely less well known : " Crispus, you, too, Jugurtha's fall who told, And filched such store of words from Cato old." It is a tiresome kind of affectation ; any one can 30 practise it, and it is made all the worse by the fact that the man who catches the infection will not choose his words to suit his facts, but will drag in irrelevant facts to provide an opportunity for the use of such words. The coining of new words is, as I stated in the first book,4 more permissible in Greek, for the Greeks did not hesitate to coin nouns to represent certain sounds and emotions, and in truth they were taking no greater liberty than was taken by the first men when they gave names to things. Our 31 own writers have ventured on a few attempts at composition and derivation, but have not met with 227 QU1NTILIAN aliquid ausi vix in hoc satis recipiimtur. Nam me- mini iuvenis admodum inter Pomponium ac Senecam etiam praefationibus esse tractatum, an gradus elimi- nat in tragoedia dici oportuisset. At veteres ne expectorat quidem timuerunt ; et sane eiusdem notae 32 est exanimat. In tractu et declinatione talia sunt, qualia apud Ciceronem bcatitas et beatitudo ; quae dura quidem sentit esse, verumtamen usu putat posse molliri. Nee a verbis modo, sed a nominibus quoque derivata sunt quaedam, ut a Cicerone Sulla- 33 turil ab Asinio Fimbriatum et Figulalum. Multa ex Graeco formata nova ac plurima a Verginio 1 Flavo, quorum dura quaedam admodum videntur, ut queens 2 et essentia; quae cur tantopere aspernemur nihil video, nisi quod iniqui iudices adversus nos sumus ideoque paupertate sermonis laboramus. Quaedam 34 tamen perdurant. Nam et quae Vetera nunc sunt, fuerunt olim nova, et quaedam sunt in usu perquam recentia, ut Messala primus reatum, munerarium Augustus primus dixerunt. Piralicam quoque ut musicam et fabricam dici adhuc vetabant 3 mei prae- ceptores. Favorem et urbanum Cicero nova credit. Nam et in epistola ad Brutum Bum, inquit, amorem et eum, ut hoc verbo ular, favorem in consilium advo- 1 Verginio, Spalding : Sergio, MSS. * queens, Balm : quae ens, MSS. 3 vetabant, Halm : dubitabant, MSS. om. by A. 1 Sc. "moves his steps beyond the threshold." 2 " banishes from his heart." 3 Be Nat. B. I. xxxiv. 95. * ad AU. ix. x. 6. " Desires to be a second Sulla." 6 Metamorphosed into Figulus. Presumably refers to Clusinius Figulus, see vii. ii. 26. • See ii. xiv. 2. 228 BOOK VIII. m. 31-34 much success. I remember in my young days there was a dispute between Pomponius and Seneca which even found its way into the prefaces of their works, as to whether gracilis eliminal l was a phrase which ought to have been allowed in tragedy. But the ancients had no hesitation about using even expcctorat ,2 and, after all, it presents exactly the same formation as exanimat. Of the coining of words by expansion 32 and inflexion we have examples, such as the Cicero- nian 3 beatitas and beatitudo, forms which he feels to be somewhat harsh, though he thinks they may be softened by use. Derivatives may even be fashioned from proper names, quite apart from ordinary words, witness Sullaturit * in Cicero and Fiinbriatus and Figu- latus5 in Asinius. Many new words have been 33 coined in imitation of the Greeks,6 more especially by Verginius Flavus, some of which, such as queens and essentia, are regarded as unduly harsh. But I see no reason why we should treat them with such contempt, except, perhaps, that we are highly self-critical and suffer in consequence from the poverty of our language. Some new formations do, however, succeed in establishing themselves. For words which now 34 are old, once were new, and there are some words in use which are of quite recent origin, such as reatus,1 invented by Messala, and munerarius* invented by Augustus. So, too, my own teachers still persisted in banning the use of words, such as piratic a, musica and fabrica, while Cicero regards favor and urbanus as but newly introduced into the language. For in a letter to Brutus he says, eum amorer et cum, ut hoc The condition of an accused person. The giver of a gladiatorial show. 22g QUINTILIAN 35 cabo. Et ad Appium Pulchrum, Te, hominevi non solum sapientem verum eliam, ut mine loquimur, vrbanum. Idem putat a Terentio primum dictum esse obse- quium, Caecilius a Sisenna albente caelo. Cervicem videtur Hortensius primus dixisse, nam veteres pluraliter appellabant. Audendum itaque ; neque enim accedo Celso, qui ab oratore verba fingi vetat. 36 Nam, cum sint eorum alia (ut dicit Cicero) nativa, id est, quae significata sunt primo sensu, alia reperta, quae ex his facta sunt, ut iam nobis ponere alia, quam quae illi rudes homines primique fecerunt, fas non sit, at derivare, flectere, coniungere, quod natis 37 postea concessum est, quando desiit licere ? Sed, si quid periculosius finxisse videbimur, quibusdam re- mediis praemuniendum est : Ut ita dicam, Si licet dicere, Quodam modo, Permittite mihi sic uti. Quod idem etiam in iis, quae licentius translata erunt, proderit, nihilque non tuto dici potest, in quo non falli iudicium nostrum sollicitudine ipsa manifestum erit. Qua de re Graecum illud elegantissimum est, quo praecipitur irpoeirnT\r)<T<Ttiv rfj virepfioXr}. 38 Translata probari nisi in contextu sermonis non 1 This letter is lost : " I will -call that love and that favour, if I may use the word, to be my counsellors. " 2 ad Fain. in. viii. 3. " You who are not merely wise, but, as we say nowadays, urbane." 3 " When the sky grew white (at dawn)." 4 Part Or. v. 16. s Ar. Rhet. in. vii. 9. 230 BOOK VIII. in. 34-38 verbo utar, favorcm in consilium advocaho,1 while to 35 Appius Pulcher he writes, te hominem non solum sapi- entem, verum etiam, ut nunc loquimur, urbanum.* He also thinks that Terence was the first to use the word obsequium, while Caecilius asserts that Sisenna was the first to use the phrase albente caelo.3 Hor- tensius seems to have been the first to use cervix in the singular, since the ancients confined themselves to the plural. We must not then be cowards, for I cannot agree with Celsus when he forbids orators to coin new words. For some words, as Cicero4 says, 36 are native, that is to say, are used in their original meaning, while others are derivative, that is to say, formed from the native. Granted then that we are not justified in coining entirely new words having no resemblance to the words invented by primitive man, I must still ask at what date we were first forbidden to form derivatives and to modify and compound words, processes which were un- doubtedly permitted to later generations of mankind. If, however, one of our inventions seems a little 37 risky, we must take certain measures in advance to save it from censure, prefacing it by phrases such as "so to speak," "if I may say so," "in a certain sense," or "if you will allow me to make use of such a word." The same practice may be followed in the case of bold metaphors, and it is not too much to say that almost anything can be said with safety provided we show by the very fact of our anxiety that the word or phrase in question is not due to an error of judgment. The Greeks have a neat saying on this subject, advising us to be the first to blame our own hyperbole.6 The metaphorical use of words cannot be recom- 38 QUINT1L1AN possunt. Itaque de singulis verbis satis dictum, quae, ut alio loco ostendi, per se nullam virtutem habent. Sed ne inornata sunt quidem, nisi cum sunt infra rei, de qua loquendum est, dignitatem, excepto 39 si obscena nudis nominibus enuntientur. Quod viderint, qui non putant esse vitanda, quia nee sit vox ulla natura turpis et, si qua est rei deformitas, alia quoque appellatione quacunque ad intellectum eundem nihilominus perveniat. Ego Romani pudoris more contentus, ut iam respondi talibus, verecundiam silentio vindicabo. 40 Iam hinc igitur ad rationem sermonis coniuncti transeamus. Cuius ornatus in haec duo prima divi- ditur, quam concipiamus elocutionem, quo modo efferamus. Nam primum est, ut liqueat, augere quid velimus an minuere, concitate dicere an moderate, laete an severe, abundanter an presse, aspere an leniter, magnifice an subtiliter, graviter an urbane. 41 Turn, quo translationum1 genere, quibus figuris, quali- bus sententiis, quo modo, qua postremo collocatione id, quod intendimus, efficere possimus. Ceterum dicturus, quibus ornetur oratio, prius ea, quae sunt huic contraria laudi, attingam ; nam prima 42 virtus est vitio carere. Igitur ante omnia ne spere- mus ornatam orationem fore, quae probabilis non erit. 1 translationum, II aim : translationem, A : translatione, G. 1 I. v. 3. 232 BOOK VIII. hi. 38-42 mended except in connected discourse. Enough has now been said on the subject of single words, which, as I have pointed out elsewhere,1 have no intrinsic value of their own. On the other hand, there is no word which is intrinsically ugly unless it be beneath the dignity of the subject on which we have to speak, excepting always such words as are nakedly obscene. I would commend this remark to those 39 who do not think it necessary to avoid obscenity on the ground that no word is indecent in itself and that, if a thing is revolting, its unpleasantness will be realised clearly enough by whatever name it is called. Accordingly, I shall content myself with following the good old rules of Roman modesty and, as I have already replied to such persons, shall vindicate the cause of decency by saying no more on this unpleasant subject. Let us now pass to consider connected discourse. 40 Its adornment may be effected, primarily, in two ways ; that is to say, we must consider first our ideal of style, and secondly how we shall express this ideal in actual words. The first essential is to realise clearly what we wish to enhance or attenuate, to express with vigour or calm, in luxuriant or austere language, at length or with conciseness, with gentle- ness or asperity, magnificence or subtlety, gravity or wit. The next essential is to decide by what kind of 41 metaphor, figures, reflexions, methods and arrange- ment we may best produce the effect which we desire. But, before I discuss ornament, I must first touch upon its opposite, since the first of all virtues is the avoidance of faults. Therefore we must not expect 42 any speech to be ornate that is not, in the first place, 233 QUINTILIAN Probabile autem Cicero id genus dicit, quod non nimis est comptum.1 Non quia corai expolirique non debeat (nam et haec ornatus pars est) sed quia 43 vitium est ubique quod nimium est. Itaque vult esse auctoritatem in verbis, sententias vel graves vel aptas opinionibus hominum ac moribus. His enim salvis, licet assumere ea quibus illustrem fieri oratio- nem putat, delecta, translata, superlata, ad nomen adiuncta, duplicata et idem significantia atque ab ipsa actione atque ab imitation e rerum non abhorrentia. 44 Sed quoniam vitia prius demonstrare aggressi sumus, ab hoc initium 2 sit, quod KaK(fx<^a.rov vocatur, sive mala consuetudine in obscenum intellectum sermo detortus est (ut duclare exercitus et patrare bella, apud Sallustium dicta sancte et antique riden- tibus, si dis placet ; quam culpam non scribentium 45 quidem iudico sed legentium, tamen vitandam, qua- tenus verba honesta moribus perdidimus, et vincenti- bus iam 3 vitiis cedendum est) sive iunctura deformi- ter sonat, ut, si cam hominibus notis loqui nos dicimus, nisi hoc ipsum hominibus medium sit, in praefanda 1 nimis est comptum, Cicero : nimis est dictum, AG. : plus minusve quam dicet (decet, edd.), codd. dctt. 8 ab hoc initium, Balm: vel hoc initium, AG. : vel hoc vitium vulgo. 3 iam, Spalding : etiam, AG. 1 Part. Or., vi. 19. * ductare might mean ad libidinem abducere. patrare helium might mean paedicare formosum. 234 BOOK VIII. hi. 42-45 acceptable. An acceptable style is defined by Cicero * as one which is not over-elegant : not that our style docs not require elegance and polish, which are essential parts of ornament, but that excess is always a vice. He desires, therefore, that our 43 words should have a certain weight about them, and that our thoughts should be of a serious cast or, at anv rate, adapted to the opinions and character of mankind. These points once secured, we may proceed to employ those expressions which he regards as conferring distinction on style, that is to say, specially selected words and phrases, metaphor, hyperbole, appropriate epithets, repetitions, syno- nyms and all such language as may suit our case and provide an adequate representation of the facts. But since my first task is to point out the faults to 44 be avoided, I will begin by calling attention to the fault known as KaAcc/i^arov, a term applied to the employment of language to which perverted usage has given an obscene meaning : take, for example, phrases such as ductare exercitus and patrare bellurn,2 which were employed by Sallust in their old and irreproachable sense, but, 1 regret to say, cause amusement in certain quarters to-day. This, how- ever, is not, in my opinion, the fault of the writer, but of his readers ; still it is one to be avoided, for we 45 have perverted the purity of language by our own corruption, and there is no course left to us but to give ground before the victorious advance of .vice. The same term is also applied in the cases where an unfortunate collocation of words produces an obscene suggestion. For example, in the phrase cum homini- bus nods loqui, unless hominibus is placed between cum and notis, we shall commit ourselves to a phrase 235 QUINTILIAN videmur incidere, quia ultima prioris syllabae littera, quae exprimi nisi labris coeuntibus non potest, aut intersistere nos indecentissime cogit aut continuata 46 cum insequente in naturam eius corrumpitur. Ali- aeque coniunctiones aliquid simile faciunt, quas persequi libenter est in eo vitio, quod vitandum dicimus, commorantis. Sed divisio quoque adfert eandem iniuriam pudori, ut si intercapedinis nomina- 47 tivo casu quis utatur. Nee scripto modo id accidit, sed etiam sensu plerique obscene intelligere, nisi caveris, cupiunt (ut apud Ovidium Quacqi/e1 latent meliora putat) et ex verbis, quae longissime ab ob- scenitate absunt, occasionem turpitudinis rapere. Siquidem Celsus Ka.K€/jL(f>iTov apud Vergilium putat: Incipiunt agitata tumescere. Quod si recipias, nihil loqui tutum est. 48 Deformitati proximum est humilitatis vitium, Tonreivwo-w vocant, qua rei magnitudo vel dignitas minuitur : ut Saxea est verruca in summo montis vertice. Cui natura contrarium, sed errore par est, parvis dare si qua, MSS. of Ovid. 1 i.e. pronouncing cunnotis. 1 intercapedo, of which the last two syllables might give rise to unseemly laughter ; pedo = " break wind." 3 Met. i. 502. 4 Georg. i. 357. 6 From an unknown tragedian. 236 BOOK VIII. in. 45-48 which will require some apology, since the final letter of the first syllable, which cannot be pronounced without closing the lips, will force us either to pause in a most unbecoming manner, or by assimilation to the 11 which follows1 will produce a most objection- able suggestion. I might quote other collocations 46 of words which are liable to the same objection, but to discuss them in detail would be to fall into that very fault which I have just said should be avoided. A similar offence against modesty may be caused by the division of words, as, for example, by the use of the nominative of intercapedinis.2 And it is not 47 merely in writing that this may occur, but you will find, unless you exercise the greatest care, that there are a number of persons who take pleasure in putting an indecent interpretation on words, thinking, as Ovid 3 says : "that whatsoe'er is hid is best of all." Nay, an obscene meaning may be extracted even from words which are as far removed from indecency as possible. Celsus, for example, detects an instance of Ka.KefjL<f>a.Tov in the Virgilian 4 phrase : incipiunt agitata tumescere ; but if this point of view be accepted, it will be risky to say anything at all. Next to indecency of expression comes meanness, 48 styled Ta7T€«coo-is, when the grandeur or dignity of anything is diminished by the words used, as in the line : " There is a rocky wart upon the mountain's brow." 5 The opposite fault, which is no less serious, consists 237 QUINTILIAN excedentia modum nomina, nisi cum ex industria risus inde captatur. Itaque nee parricidain nequam dixeris hominem nee deditum forte meretrici ne- farium; quia alterum parum, alterum nimium est. 49 Proinde quaedam hebes, sordida, ieiuna, tristis, in- grata, vilis oratio est ; quae vitia facillime fient manifesta contrariis virtutibus. Nam primum acute-, secundum nitido, tertium copioso, deinceps hilari, iucundo, accurato diversum est. 50 Vitari debet l et /AtiWis, cum sermoni deest aliquid, quo minus plenus sit ; quanquam id obscurae potius quam inornatae orationis est vitium. Sed hoc quoque, cum a prudentibus fit, schema dici solet, sicut TcurroAoyta, id est eiusdem verbi aut sermonis iteratio. 51 Haec enim, quanquam non magnopere a summis auctoribus vitata, interim vitium videri potest, in quod saepe incidit etiam Cicero securus tarn parvae observationis, sicut hoc loco, Non solum igitur Mud iudicium iudicii simile, iudices, non fuit. Interim mutato nomine c7ravaA.?7t/us dicitur, atque est et ipsum inter schemata; quorum exempla illo loco quaerenda, quo virtutes erunt. 62 Peior hac 6/xoet'Scta, quae nulla varietatis gratia levat taedium atque est tota coloris unius, qua maxime deprehenditur carens arte oratio ; eaque et in sententiis et in figuris et in compositione longe 1 debet, added bij Halm. 1 Pro Cluent. xxxv. 96. To bring out the effect criticised by Cicero, iudicium must be translated "judgment." But "trial" is required to give the correct sense. iiravaX-q^is = repetition. 8 IX. ii. 238 BOOK VIII. hi. 48-52 in calling small things by extravagant names, though such a practice is permissible when deliberately designed to raise a laugh. Consequently we must not call a parricide a scamp, nor a man who keeps a harlot a villain, since the first epithet is too weak and the second too strong. This fault will result in 49 making our language dull, or coarse, jejune, heavy, unpleasing or slovenly, all of which faults are best realised by reference to the virtues which are their opposites, that is, point, polish, richness, liveliness, charm, and finish. We must also avoid /xctwcrt?, a term applied to 50 meagreness and inadequacy of expression, although it is a fault which characterises an obscure style rather than one which lacks ornament. But meiosis may be deliberately employed, and is then called a figure, as also is tautology, which means the repetition of a word or phrase. The latter, though not avoided 51 with special care even by the best authors, may sometimes be regarded as a fault : it is, in fact, a blemish into which Cicero not infrequently falls through indifference to such minor details : take, for example, the following passage,1 "Judges, this judgment was not merely unlike a judgment." It is sometimes given another name, kiraid\r]ij/is, under which appellation it is ranked among figures, of which I shall give examples when I come to the discussion of stylistic virtues.2 A worse fault is 6/iotiScta, or sameness, a term 52 applied to a style which has no variety to relieve its tedium, and which presents a uniform monotony of hue. This is one of the surest signs of lack of art, and produces a uniquely unpleasing effect, not merely on the mind, but on the ear, on account of its sarne- 239 QUINTILIAN non animis solum sed etiam auribus est ingratissima. 53 Vitanda etiam1 /xaKpokoyia, id est longior quam oportet sermo : ut apud T. Livium, Legati non impetrata pace retro domum, wide venerant, abiernnt. Sed huic vicina periphrasis virtus habetur. Est et TrXeovaa-/j.6<; vitium, cum supervacuis verbis oratio oneratur : Ego oculis 54 meis vidi ; sat est eiiim vidi. Emendavit hoc etiam urbane in Hirtio Cicero, cui sapasim 2 cum decla- mans /ilium a malre decern mensibus in utero latum esse dixisset, Quid ? aliae, in quit, in perula 3 solent ferre ? Nonnunquam tamen illud genus, cuius exemplum priore loco posui, adfirmationis gratia adhibetur : Vocemque his auribus hausi. 55 At vitium erit, quotiens otiosum fuerit et supererit, non cum adiicietur. Est etiam, quae Trepiepyia voca- tur, supervacua, ut sic dixerim, operositas, ut a diligenti curiosus et a religione superstitio distat. Atque, ut semel finiam, verbum omne, quod neque intellectum adiuvat neque ornatum, vitiosum dici potest. 56 KaKo'^Xov, id est mala adfectatio, per omne dicendi genus peccat. Nam et tumida et pusilla et praedulcia et abundantia et arcessita et exultantia sub idem 1 etiam added by Christ. 2 cui sapasim cum, A : cusapastium, G, while equally "meaningless readings are given by later MSS. R. Unger suggested cum is Pasiphaam, Volkmann cum is apud ipsum. 3 perula, I'asserat: penula, MSS. 1 Fr. 62, Hertz. 2 perula means "a small wallet." But it is noteworthy that in Apul. Met. V. xiv. it is used = uterus, and the double- entendre was probably current in Cicero's time. • Ae-n.. iv. 359. 240 BOOK VIII. in. 52-56 ness of thought, the uniformity of its figu-es, and the monotony of its structure. We must also avoid 53 macrology, that is, the employment of more words than are necessary, as, for instance, in the sentence of Livy, " The ambassadors, having failed to obtain peace, went back home, whence they had come." x On the other hand, periphrasis, which is akin to this blemish, is regarded as a virtue. Another fault is pleonasm, when we overload our style with a super- fluity of words, as in the phrase, " I saw it with my eyes," where "I saw it" would have been sufficient. Cicero passed a witty comment on a 54 fault of this kind in a declamation of Hirtius when he said that a child had been carried for ten months in his mother's womb. "Oh," he said, "I suppose other women carry them in their bags."2 Some- times, however, the form of pleonasm, of which I have just given an example, may have a pleasing effect when employed for the sake of emphasis, as in the Virgilian phrase 3 : " With mine own ears his voice I heard." But whenever the addition is not deliberate, but 55 merely tame and redundant, it must be regarded as a fault. There is also a fault entitled Trepupyta. which I may perhaps translate by superfluous elaboration, which differs from its corresponding virtue much as fussiness differs from industry, and superstition from religion. Finally, every word which neither helps the sense nor the style may be regarded as faulty. Cacozelia, or perverse affectation, is a fault in every 56 kind of style : for it includes all that is turgid, trivial, luscious, redundant, far-fetched or extrava- gant, while the same name is also applied to virtues 241 QUINTILIAN nomen cadunt. Denique KaKofyXov vocatur, quid- quid est ultra virtutem, quotiens ingenium iudicio caret et specie boni fallitur, omnium in eloquentia vitiorum pessimum. Nam cetera parum vitantur, 57 hoc petitur. Est autem totuin in elocutione. Nam rerum vitia sunt stultum, commune, contrarium, supervacuum ; corrupta oratio in verbis maxime im- propriis, redundantibus, comprehensione obscura compositione fracta, vocum similium aut ambigua- 58 rum puerili captatione consistit. Est autem omne KaKotrjXov utique falsum, etiamsi non omne falsum KdKotyXov' est enim quod l dicitur aliter, quam se natura habet et quam oportet et quam sat est. Totidem autem generibus corrumpitur oratio quot ornatur. Sed de hac parte et in alio nobis opere plenius dictum est et in hoc saepe tractatur et adhuc spargetur omnibus locis. Loquentes enim de ornatu subinde, quae sint vitanda similia virtutibus vitia, dicemus. 59 Sunt inornata et haec : quod male dispositum est, id avoLKovofxrjTov, quod male figuratum, id do-x^a-rio-rov, quod male collocatum, id KaKocrvvOerov vocant. Sed de dispositione diximus; de figuris et compositione dicemus. SapSicrftos quoque appellatur quaedam mixta ex varia ratione linguarum oratio, ut si Atticis Dorica, Ionica, Aeolica etiam dicta confundas. 1 I have added est enim quod as the simplest way of filling up an obvious gap. Victor gives cacozelon vero est quod dicitur. 1 The lost De causis corruptae eloquent iae. 242 BOOK VIII. m. 56-59 carried to excess, when the mind loses its critical sense and is misled by the false appearance of beauty, the worst of all offences against style, since other faults are due to carelessness, but this is deliberate. This form of affectation, however, affects 57 style alone. For the employment of arguments which might equally well be advanced by the other side, or are foolish, inconsistent or superfluous, are all faults of matter, whereas corruption of style is revealed in the employment of improper or redundant words, in obscurity of meaning, effeminacy of rhythm, or in the childish search for similar or ambiguous expressions. Further, it always involves insincerity, 58 even though all insincerity does not imply affectation. For it consists in saying something in an unnatural or unbecoming or superfluous manner. Style may, however, be corrupted in precisely the same number of ways that it may be adorned. But I have dis- cussed this subject at greater length in another work,1 and have frequently called attention to it in this, while I shall have occasion to mention it con- tinually in the remaining books. For in dealing with ornament, I shall occasionally speak of faults which have to be avoided, but which are hard to distinguish from virtues. To these blemishes may be added faulty arrange- 59 ment or avoLKovofjuqrov, the faulty use of figures or dcr^7]fia.TicrTov} and the faulty collocation of words or K.a.Ko<Tvv6(.Tov. But, as I have already discussed arrangement, I will confine myself to the considera- tion of figures and structure. There is also a fault known as SapSicr/xo?, which consists in the indis- criminate use of several different dialects, as, for instance, would result from mixing Doric, Ionic, and 243 QUINTILIAN 60 Cui simile vitium est apud nos, si quis sublimia humilibus, Vetera novis, poetica vulgaribus misceat. Id enim tale monstrum, quale Horatius in prima parte libri de arte poetica fingit : Humano capiti cervicem pictor equinam lungere si velit, et cetera ex diversis naturis subiiciat. 61 Ornatum est, quod perspicuo ac probabili plus est. Eius primi sunt gradus in eo quod velis concipiendo et1 exprimendo, tertius, qui haec nitidiora faciat, quod proprie dixeris cultum. Itaque evapyeiav, cuius in praeceptis narrationis feci mentionem, quia plus est evidentia vel, ut alii dicunt, repraesentatio quam perspicuitas, et illud patet, hoc se quodammodo 62 ostendit, inter ornamenta ponamus. Magna virtus est res de quibus loquimur clare atque, ut cerni videantur, enuntiare. Non enim satis efficit neque, ut debet, plene dominatur oratio, si usque ad aures valet atque ea sibi iudex, de quibus cognoscit, narrari credit, non exprimi et oculis mentis ostendi. 63 Sed quoniam pluribus modis accipi solet non equidem in omnes earn particulas secabo,2 quarum 1 The plural primi gradus followed by tertius demands the addition of some other verb beside exprimendo. I have added concipiendo et. 2 secabo, Regius : locabo, AG. 1 A. P. 1. » iv. ii. 63. 244 BOOK VIII. in. 60-63 even Aeolic words with Attic. A similar fault is 60 found amongst ourselves, consisting in the indis- criminate mixture of grand words with mean, old with new, and poetic with colloquial, the result being a monstrous medley like that described by Horace in the opening portion of his Ars poetica,1 " If a painter choose To place a man's head on a horse's neck," and, he proceeds to say, should add other limbs from different animals. The ornate is something that goes beyond what 61 is merely lucid and acceptable. It consists firstly in forming a clear conception of what we wish to say, secondly in giving this adequate expression, and thirdly in lending it additional brilliance, a process which may correctly be termed embellish- ment. Consequently we must place among ornaments that ivdpyeia which I mentioned in the rules which I laid down for the statement of facts,2 because vivid illustration, or, as some prefer to call it, representa- tion, is something more than mere clearness, since the latter merely lets itself be seen, whereas the former thrusts itself upon our notice. It is a great 62 gift to be able to set forth the facts on which we are speaking clearly and vividly. For oratory fails of its full effect, and does not assert itself as it should, if its appeal is merely to the hearing, and if the judge merely feels that the facts on which he has to give his decision are being narrated to him, and not displayed in their living truth to the eyes of the mind. But since different 63 views have been held with regard to this art of representation, I shall not attempt to divide it into 245 QUINTILIAN ambitiose a quibusdam numerus augetur, sed maxime necessarias attingam. Est igitur unum genus, quo tota rerum imago quodammodo verbis depingitur : Constitit in digitos extemplo arrectus uterque et cetera, quae nobis illam pugilum congredientium faciem ita ostendunt, ut non clarior futura fuerit 64 spectantibus. Plurimum in hoc genere sicut in ceteris eminet Cicero. An quisquam tarn procul a concipiendis imaginibus rerum abest, ut non, cum ilia in Verrem legit, Stetit soleatus praetor populi Romani cum pallio purpureo tnnicaque talari muliercula nixus in litore, non solum ipsos intueri videatur et locum et habitum, sed quaedam etiam ex iis, 65 quae dicta non sunt, sibi ipse adstruat ? Ego certe mihi cernere videor et vultum et oculos et deformes utriusque blanditias et eorum qui aderant tacitam 66 aversationem ac timidam verecundiam. Interim ex pluribus efficitur ilia quam conamur exprimere facies, ut est apud eundem (namque ad omnium ornandi virtutum exemplum vel unus sufficit) in descriptione convivii luxuriosi : Videbar videre alios intrantes, alios autem exeuntes, quosdam ex vino vacillantes, quosdam 1 A en. v. 426. 2 v. xxxiii. 86. 3 From the lost pro G'allio. 246 BOOK VIII. m. 63-66 all its different departments, whose number is ostentatiously multiplied by certain writers, but shall content myself with touching on those which appear to me to be absolutely necessary. There is, then, to begin with, one form of vividness which con- sists in giving an actual word-picture of a scene, as in the passage beginning, "Forthwith each hero tiptoe stood erect."1 Other details follow which give us such a picture of the two boxers confronting each other for the fight, that it could not have been clearer had we been actual spectators. Cicero is supreme in this 64 department, as in others. Is there anybody so in- capable of forming a mental picture of a scene that, when he reads the following passage from the Verrines,2 he does not seem not merely to see the actors in the scene, the place itself and their very dress, but even to imagine to himself other details that the orator does not describe ? " There on the shore stood the praetor, the representative of the Roman people, with slippered feet, robed in a purple cloak, a tunic streaming to his heels, and leaning on the arm of this worthless woman." For my own 65 part, I seem to see before my eyes his face, his eves, the unseemly blandishments of himself and his para- mour, the silent loathing and frightened shame of those who viewed the scene. At times, again, the 66 picture which we endeavour to present is fuller in detail, as, for example, in the following description of a luxurious banquet, which is also from Cicero,3 since he by himself is capable of supplying admirable examples of every kind of oratorical ornament : " I seemed to see some entering, some leaving the room, 247 QUJNTILIAN hesterna ex polatione oscitanies. Humus erat immunda, lutulenta vino, coronis languidulis et spirits cooperta 67 piscium. Quid plus videret qui intrasset ? Sic et urbium captarum crescit miseratio. Sine dubio enim, qui dicit expugnatam esse civitatem, complectitur omnia quaecunque talis fortuna recipit, sed in adfectus 68 minus penetrat brevis hie velut nuntius. At si aperias haec, quae verbo uno inclusa erant, ap- parebunt effusae per domus ac templa flammae et ruentium tectorum fragor et ex diversis clamoribus unus quidam sonus, aliorum fuga incerta, alii ex- treme- complexu suorum cohaerentes et infantium feminarumque ploratus et male usque in ilium diem 69 servati fato senes ; turn ilia profanorum sacrorumque direptio, efferentium praedas repetentiumque dis- cursus et acti ante suum quisque praedonem eatenati et conata retinere infantem suum mater et, sicubi maius lucrum est, pugna inter victores. 70 Licet enim haec omnia, ut dixi, complectatur eversio, minus est tamen totum dicere quam omnia. Consequemur autem, ut manifesta sint, si fuerint versimilia ; et licebit etiam falso adfingere quidquid 248 BOOK VIII. in. 66-70 some reeling under the influence of the wine, others yawning with )resterday's potations. The floor was foul with wine-smears, covered with wreaths half- withered and littered with fishbones." What more 67 would any man have seen who had actually entered the room ? So, too, we may move our hearers to tears by the picture of a captured town. For the mere statement that the town was stormed, while no doubt it embraces all that such a calamity in- volves, has all the curtness of a dispatch, and fails to penetrate to the emotions of the hearer. But if 68 we expand all that the one word " stormed " includes, we shall see the flames pouring from house and temple, and hear the crash of falling roofs and one confused clamour blent of many cries : we shall behold some in doubt whither to fly, others clinging to their nearest and dearest in one last embrace, while the wailing of women and children and the laments of old men that the cruelty of fate should have spared them to see that day will strike upon our ears. Then will come the pillage of treasure 69 sacred and profane, the hurrying to and fro of the plunderers as they carry off" their booty or return to seek for more, the prisoners driven each before his own inhuman captor, the mother struggling to keep her child, and the victors fighting over the richest of the spoil. For though, as I have already said, the sack of a city includes all these things, it is less effective to tell the whole news at once than to recount it detail by detail. And we shall secure 70 the vividness we seek, if only our descriptions give the impression of truth, nay, we may even add fictitious incidents of the type which commonly occur. The same vivid impression ma}' be produced 249 QUINTILIAN fieri solet. Continget eadem claritas etiam ex accidentibus : Mihi frigidus hoiror Membra quatit, gelidusque coit formidine sanguis. Et El trepidae vialres pressere ad pcctora natos. 71 Atque huius summae, iudicio quidem meo, virtutis facillima est via. Naturam intueamur, hanc sequ- amur. Omnis eloquentia circa opera vitae est, ad se refert quisque quae audit, et id facillime accipiunt animi, quod agnoscunt. 72 Praeclare vero ad inferendam rebus lucem repertae sunt similitudines ; quarum aliae sunt, quae proba- tions gratia inter argumenta ponuntur, aliae ad exprimendam rerurn imaginem compositae, quod est huius loci proprium : hide lupi ceu Raptores atra in nebula. Et Avi similis, quae circum lilora, circum Piscosos scopulos humilis volat aequora iuxta. 73 Quo in genere id est praecipue custodiendum, ne id, quod similitudinis gratia adscivimus, aut ob- scurum sit aut ignotum. Debet enim, quod illus- trandae alterius rei gratia assumitur, ipsum esse 1 Aen. iii. 29. * Aen. vii. 518. 3 Aen. ii. 355. * ^en. iv. 254. 250 BOOK VIII. hi. 70-73 also by the mention of the accidents of each situation : " Chill shudderings shake my limbs And all my blood is curdled cold with fear ; " 1 or " And trembling mothers clasped Their children to their breast." 2 Though the attainment of such effects is, in my 71 opinion, the highest of all oratorical gifts, it is far from difficult of attainment. Fix your eyes on nature and follow her. All eloquence is concerned with the activities of life, while every man applies to himself what he hears from others, and the mind is always_readiest to accept_what it recognises to_ be true to nature. The invention of similes has also provided an 72 admirable means of illuminating our descriptions. Some of these are designed for insertion among our arguments to help our proof, while others are devised to make our pictures yet more vivid ; it is with this latter class of simile that I am now specially concerned. The following are good examples : — "Thence like fierce wolves beneath the cloud of night," 3 or u Like the bird that flies 4 Around the shore and the fish-haunted reef, Skimming the deep." In employing this form of ornament we must be 73 especially careful that the subject chosen for our simile is neither obscure nor unfamiliar : for any- thing that is selected for the purpose of illuminating 251 QUINTILIAN clarius eo quod illuminat. Quare poetis quidem permittamus sane eiusmodi exempla : Qualis ubi hibernam Lyciam Xanthique jluenta Dcserit aid Dclum matemam in visit Apollo. Non idem oratorem decebit, ut occultis aperta 74 demonstret. Sed illud quoque, de quo in argu- ments diximus, similitudinis genus ornat orationem facitque sublimem, floridam, iucundam, mirabilem. Nam quo quaeque longius petita est, hoc plus 75 adfert novitatis atque inexspectata magis est. Ilia vulgaria videntur et utilia tantum ad conciliandam fidem : Ut terram cultu, sic animum disciplinis meliorem uberioremque fieri, et Ut medici abalienata morbis membra praecidant, ita turpes ac perniciosos, etiamsi nobis sangidne cohaereant, ampidandos. lam sublimius illud pro Archia ; Saxa atque solitudines voci re- spondent, besliae saepc immanes cantu Jlectuntur atque 76 consistunt et cetera. Quod quidem genus a quibus- dam declamatoria maxime licentia corruptum est. Nam et falsis utuntur nee Hla iis, quibus similia videri volunt, applicant. Quorum utrumque in his 1 Aen. iv. 14.*}. 2 v. xi. 22. 3 Fro Arch. viii. 19. 252 BOOK VIII. in. 73-76 something else must itself be clearer than that which it is designed to illustrate. Therefore while we may permit poets to employ such similes as : — "As when Apollo wintry Lycia leaves, And Xanthus' streams, or visits Delos' isle, His mother's home," a it would be quite unsuitable for an orator to illustrate something quite plain by such obscure allusions. But even the type of simile which I discussed in 74 connexion with arguments 2 is an ornament to oratory, and serves to make it sublime, rich, attractive or striking, as the case may be. For the more remote the simile is from the subject to which it is applied, the greater will be the impression of novelty and the unexpected which it produces. The following type 75 may be regarded as commonplace and useful onlv as helping to create an impression of sincerity : " As the soil is improved and rendered more fertile by culture, so is the mind by education," or "As physicians amputate mortified limbs, so must we lop away foul and dangerous criminals, even though they be bound to us by ties of blood." Far finer is the following from Cicero's 3 defence of Archias : " Rock and deserts reply to the voice of man, savage beasts are oft-times tamed by the power of music and stay their onslaught," and the rest. This type 76 of simile has, however, sadly degenerated in the hands of some of our declaimers owing to the license of the schools. For they adopt false comparisons, and even then do not apply them as they should to the subjects to which they wish them to provide a parallel. Both these faults are exemplified in two similes which were on the lips of everyone *53 QUINTILIAN est, quae me iuvene uhique cantari solebant, Mag- norum jlumitium nuvigabiles fontes sunt, et Generosioris 77 arboris statim planta cum fructu est. In omni autem parabole aut praecedit similitudo, res sequitur, aut praecedit res et similitudo sequitur. Sed interim libera et separata est ; interim, quod longe optimum est, cum re, cuius est imago, connectitur, collatione invicem respondente, quod facit redditio contraria, 78 quae dvra7ro8ocrts dicitur. Praecedit similitudo ilia, cuius modo feci mentionem : Inde lupi ceu Raplores atra in nebula. Sequitur in primo Georgicon post longam de bellis civilibus atque externis conquestionem : Ut, cum carceribus sese ejfudere quadrigae, Addunt in spatia ; et frusira retinacida tendens Fertur equis auriga, neque audit currus habenas. 79 Sed hae sunt sine antapodosi. Redditio autem ilia rem utramque, quam comparat, velub subiicit oculis et pariter ostendit. Cuius praeclara apud Vergilium multa reperio exempla, sed oratoriis potius utendum est. Dicit Cicero pro Murena, Ut aiunt in Graecis artificibus eos auloedos esse, qui cilharoedi fieri non poluerint, sic apud nos videmus, qui oratores evadere non 1 Aen. ii. 355. * Geury. i. 512. 8 Pro Mur. xiii. 29. 254 BOOK VIII. hi. 76-79 when I was a young man, " Even the sources of mighty rivers are navigable," and "The generous tree bears fruit while it is yet a sapling." In every 77 comparison the simile either precedes or follows the subject which it illustrates. But sometimes it is free and detached, and sometimes, a far better arrangement, is attached to the subject which it illustrates, the correspondence between the resem- blances being exact, an effect produced by reciprocal representation, which the Greeks style avTair68o<ris. For example, the simile already quoted, 78 "Thence like fierce wolves beneath the cloud of night," » precedes its subject. On the other hand, an example of the simile following its subject is to be found in the first Georgic, where, after the long lamentation over the wars civil and foreign that have afflicted Rome, there come the lines : "As when, their barriers down, the chariots speed Lap after lap ; in vain the charioteer Tightens the curb : his steeds ungovernable Sweep him away nor heeds the car the rein." 2 There is, however, no antapodosis in these similes. 79 Such reciprocal representation places both subjects of egrnparlmm t>eTbi-e our very eyes, displaying them side by side. Virgil provides many remarkable ex- amples, but it will be better for me to quote from oratory. In the pro Murena Cicero 3 says, " As among Greek musicians (for so they say), only those turn flute-players that cannot play the lyre, so here at Rome we see that those who cannot acquire the art of oratory betake themselves to the study of the 255 QUINTILIAN 80 potuerint, eos ad iuris studium devenire. Illud pro eodem iam paene poetico spiritu, sed tamen cum sua redditione, quod est ad ornatum accommodatius : Nam ui tempestates saepe certo aliquo caeli signo com- moventur, saepe improvisae nulla ex certa ratione ob.scura aliqua ex causa concilanlur, sic in hac comitiorum tempestate populari saepe intelligas, quo signo commota sit, saepe ita obscura est, ut sine causa excitata videatur. 8 1 Sunt et illae breves, Vagi per silvas ritu ferarum, et illud Ciceronis in Clodium, Quo ex iudicio velut ex incendio nudus ejfugit. Quibus similia possunt eui- cunque etiam ex cotidiano sermone succurrere. Huic subiacet virtus non solum aperte ponendi rem 82 ante oculos, sed circumcise atque velociter. Ac merito laudatur brevitas integra ; sed ea minus praestat, quotiens nihil dicit, nisi quod necesse est (fipaxyXoyiav vocant, quae reddetur inter schemata), est vero pulcherrima, cum plura paucis complectimur, quale Sallustii est, Mithridates corpore ingenti, perinde armatus. Hoc male imitantes sequitur obscuritas. 83 Vicina praedictae sed amplior virtus est e/t^acrts, 1 Pro Mur. xvii. 36. * Now lost. 256 BOOK VIII. iii. 79-83 law." There is also another simile in the same 80 speech,1 which is almost worthy of a poet, but in virtue of its reciprocal representation is better adapted for ornament: "For as tempests are generally pre- ceded by some premonitory signs in the heaven, but often, on the other hand, break forth for some obscure reason without any warning whatsoever, so in the tempests which sway the people at our Roman elections we are not seldom in a position to discern their origin, and yet, on the other hand, it is fre- quently so obscure that the storm seems to have burst without any apparent cause." We find also 81 shorter similes, such as " Wandering like wild beasts through the woods,'' or the passage from Cicero's speech against Clodius : 2 " He fled from the court like a man escaping naked from a fire." Similar examples from everyday speech will occur to everyone. Such comparisons reveal the gift not merely of placing a thing vividly before the eye, but of doing so with rapidity and without waste of detail. The 82 praise awarded to perfect brevity is well-deserved ; but, on the other hand, brachyiogy, which I shall deal with when I come to speak of figures, that is to say, the brevity that says nothing more than what is absolutely necessary, is less effective, although it may be employed with admirable results when it expresses a great deal in a very few words, as in Sallust's description of Mithridates as "huge of stature, and armed to match." But unsuccessful attempts to imitate this form of terseness result merely in obscurity. A virtue which closely resembles the last, but 83 is on a grander scale, is emphasis, which succeeds 257 VOL. III. K QUINTILIAN altiorem praebens intellectum quam quern verba per se ipsa declarant. Eius duae sunt species, altera, quae plus significat quam dicit, altera, quae etiam id 84 quod non dicit. Prior est et apud Homerum, cum Menelaus Graios in equum descendisse ait (nam verbo uno magnitudinem eius ostendit), et apud Vergilium, Demissum lapsi per funem ; nam sic quoque altitudo demonstrata est. Idem, Cyclopa cum iacuisse dixit per antrum, prodigiosum illud corpus spatio loci men- 85 sus est. Sequens positum in voce aut omnino suppressa aut etiam abscisa. Supprimitur vox, ut fecit pro Ligario Cicero : Quodsi in hac tanta fortuna bonitas tanta non esset, quam tu per te, per te inquam, obtines : intelligo, quid loquar. Tacuit enim illud, quod nihilominus accipimus, non deesse homines, qui ad crudelitatem eum impellant. Absciditur per airoo-noTrrjaiv' quae, quoniam est figura, reddetur suo 86 loco. Est in vulgaribus quoque verbis emphasis : Virum esse oporlet, et Homo est Me, et Vivcndum est. Adeo similis est arti plerumque natura. Non tamen satis eloquentiae est, ea, de quibus 1 Od. xi. 523. 2 Ami. ii. 262. * Jen. iii. 631. * v. 15: The passage goes on, "Then your victory would have brought bitter grief in its train. For how many of the victors would have wished you to be cruel !" Where then is the supprtssio? Quintilian is probably quoting from memory and has forgotten the context. * IX. ii. 54 ; iii. 60. 258 BOOK VIII. in. 83-86 in revealing a deeper meaning than is actually expressed by the words. There are two kinds of emphasis : the one means more than it says, the other often means something which it does not actually say. An example of the former is found 84 in Homer,1 where he makes Menelaus say that the Greeks descended into the Wooden Horse, indicating its size by a single verb. Or again, there is the following example by Virgil : 2 " Descending by a rope let down," a phrase which in a similar manner indicates the height of the horse. The same poet,3 when he savs that the Cyclops lay stretched "throughout the cave," by taking the room occupied as the standard of measure, gives an impression of the giant's immense bulk. The second kind of emphasis con- 85 sists either in the complete suppression of a word or in the deliberate omission to utter it. As an example of complete suppression I may quote the following passage from the pro Ligario,* where Cicero says: "But if your exalted position were not matched by your goodness of heart, a quality which is all your own, your very own — I know well enough what I am saying " Here he sup- presses the fact, which is none the less clear enough to us, that he does not lack counsellors who would incite him to cruelty. The omission of a word is pro- duced by aposiopesis, which, however, being a figure, shall be dealt with in its proper place.5 Emphasis is 86 also found in the phrases of every dav, such as " Be a man ! " or " He is but mortal," or " We must live ! " So like, as a rule, is nature to art. It is not, however, sufficient for eloquence to set *59 QUINTILIAN dicat, clare atque evidenter ostendere ; sed sunt 87 multi ac varii excolendae orationis modi. Nam ipsa ilia atpeXeia simplex et inadfectata hahet quendam purum, qualis etiam in feminis amatur, ornatum, et sunt quaedam velut e tenui diligentia circa pro- prietatem significationemque munditiae. Alia copia 88 locuples, alia floribus laeta. Virium non unum genus ; nam, quidquid in suo genere satis effectum est, valet. Praecipua tamen eius opera SeiVwo-ts in exaggeranda indignitate et in ceteris altitudo quae- dam, (ftavTao-ia in concipiendis visionibus, i£epyaaia in efficiendo velut opere proposito, cui adiicitur iTTtiepyaaca, repetitio probationis eiusdem et cumu- 89 lus ex abundanti, ivipytia. confinis his (est enim ab agendo dicta) et cuius propria sit virtus non esse, quae dicuntur, otiosa. Est et amarum quiddam, quod fere in contumelia est positum, quale Cassii : Quid fades, cum in bona tua invasero, hoc est, cum te docuero nescire maledicere? Et acre, ut illud Crassi, Ego te consulem putem, cum tu me non putes senatorem ? Sed vis oratoris omnis in augendo minuendoque consistit. 1 Cassius Severus was famous for his powers of abuse. His opponent was abusive. Cassius says that he will take a leaf out of his book and show him what real abuse is. 260 BOOK VIII. in. 86-89 forth its theme in brilliant and vivid language : there are many different ways of embellishing our style. For even that absolute and unaffected sim- 87 plicity which the Greeks call d0c'A.eia has in it a certain chaste ornateness such as we admire also in women, while a minute accuracy in securing pro- priety and precision in our words likewise produces an impression of neatness and delicacy. Again copiousness may consist either in wealth of thought or luxuriance of language. Force, too, may be 88 shown in different ways ; for there will always be force in anything that is in its own way effective. Its most important exhibitions are to be found in the following : SeiVwo-is, or a certain sublimity in the exaggerated denunciation of unworthy conduct, to mention no other topics ; (pavraa-ia, or imagination, which assists us to form mental pictures of things ; i$epyaaia, or finish, which produces completeness of effect ; iire$epyacria, an intensified form of the pre- ceding, which reasserts our proofs and clinches the argument by repetition ; and Ivlpyeia, or vigour, a 89 near relative of all these qualities, which derives its name from action and finds its peculiar function in securing that nothing that we say is tame. Bitterness, which is generally employed in abuse, may be of service as in the following passage from Cassius : " What will you do when I invade your special province, that is, when I show that, as far as abuse is concerned, you are a mere ignoramus?"1 Pungency also may be employed, as in the following remark of Crassus : " Shall I regard you as a consul, when you refuse to regard me as a senator ? " But the real power of oratory lies in enhancing or attenuating the force 261 QUINTILIAN Utrique parti totidem modi, ex quibus praecipuos attingemus ; reliqui similes erunt ; sunt autem positi 90 in rebus et verbis. Sed, quae sit rerum inventio ac ratio, tractavimus ; nunc, quid elocutio attollat aut deprimat, dicendum. IV. Prima est igitur amplificandi vel minuendi species in ipso rei nomine : ut cum eum, qui sit caesus, occisum, eum, qui sit improbus, latronem, contraque eum, qui pulsavit, attigisse, qui vulneravit, laesisse dicimus. Utriusque pariter exemplum est pro M. Caelio : Si vidua libere, proterva petulanter, dives effuse, libidinosa meretricio more viveret, adulterum ego putarem, 2 si qui hanc paulo liherius salutasset ? Nam et impudi- cara meretricem vocavit, et eum, cui longus cum ilia fuerat usus, Uberius salulasse. Hoc genus increscit ac fit manifestius, si ampliora verba cum ipsis nomini- bus, pro quibus ea posituri sumus, conferantur: ut Cicero in Verrem, Non enim furem sed ereptorem, non adulterum sed expugnatorem pudicitiae, non sacrilegum sed hostem sacrorum religionumque, non sicarium sed 1 xvi. 38. * Verr. i. iii. 9. 262 BOOK VIII. hi. 89-iv. 2 of words. Each of these departments has the same number of methods ; I shall touch on the more im- portant ; those omitted will be of a like character, while all are concerned either with words or things. I have, however, already dealt with the methods of 90 invention and arrangement, and shall therefore now concern myself with the way in which style may elevate or depress the subject in hand. IV. The first method of amplification or attenuation is to be found in the actual word employed to describe a thing. For example, we may say that a man who was beaten was murdered, or that a dis- honest fellow is a robber, or, on the other hand, we may say that one who struck another merely touched him, and that one who wounded another merely hurt him. The following passage from the pro Caelio,1 provides examples of both : "If a widow lives freely, if being by nature bold she throws restraint to the winds, makes wealth an excuse for luxurv, and strong passions for playing the harlot, would this be a reason for my regarding a man who was somewhat free in his method of saluting her to be an adulterer?" For here he calls an immodest 2 woman a harlot, and says that one who had long been her lover saluted her with a certain freedom. This sort of amplification may be strengthened and made more striking by pointing the com- parison between words of stronger meaning and those for which we propose to substitute them, as Cicero does in denouncing Verres : 2 " I have brought before you, judges, not a thief, but a plunderer ; not an adulterer, but a ravisher ; not a mere com- mitter of sacrilege, but the enemy of all religious observance and all holy things ; not an assassin, 263 QUINTILIAN criidelissimum carnificem civium sociorujnque in vestrum 3 indicium adduximus. Illo enim modo ut sit multum, hoc etiam plus ut sit efficitur. Quattuor tamen maxime generibus video constare amplificationeru, incremento, comparatione, ratiocinatione, congerie. Incrementum est potentissimum, cum magna videntur etiam quae inferiora sunt. Id aut uno gradu fit aut pluribus et pervenit non modo ad summum sed interim quodammodo supra summum. 4 Omnibus his sufficit vel unum Ciceronis exemplum : F acinus est vincire civem Romanum, scelus verberare, prope parricidium necare : quid dicam in crucem tollere ? Nam et, si tantum verberatus esset, uno gradu in- creverat, ponendo etiam id esse j'acinus, quod erat 6 inferius ; et, si tantum occisus esset, per plures gradus ascenderat ; cum vero dixerit, prope parnci- dium necare, supra quod nihil est, adiecit quid dicam i?i crucem tollere ? Ita, cum id, quod maximum est, occupasset, necesse erat in eo, quod ultra est, verba 6 deficere. Fit et aliter supra summum adiectio, ut apud Vergilium de Lauso : quo pulchrior alter Non fuit, excepto Laurentis corpore Tumi. Summum est enim, quo pulchrior alter non fuit ; huic 1 Verr. V. lxvi. 170. * Aen. vii. 649. 264 BOOK VIII. iv. 2-6 but a bloodthirsty butcher who has slain our fellow- citizens and our allies." In this passage the 3 first epithets are bad enough, but are rendered still worse by those which follow. I consider, however, that there are four principal methods of amplification : augmentation, comparison, reasoning and accumulation. Of these, augmentation is most impressive when it lends grandeur even to comparative insignificance. This may be effected either by one step or by several, and may be carried not merely to the highest degree, but sometimes even beyond it. A single example from Cicero1 will suffice to 4 illustrate all these points. "It is a sin to bind a Roman citizen, a crime to scourge him, little