respecting theft, deposits, and loans of money, arguments are derived both from possibilities, as whether there was any money that could have been deposited, and from persons, as whether it was credible that such a person deposited money with such another person, or whether it was credible that he lent money to such a person; whether it is probable that the prosecutor is a slanderer, or that the defendant is an impostor or a thief. 51. But even in the case of a person accused of theft, as in cases of murder, there is an inquiry about the deed and the author of it. In regard to cases of loan and deposit there are two questions, but always separate,* whether the money was given, and, whether it was returned. Cases of adultery have this peculiarity, that two parties are generally imperilled in them, and that something must be said of the past life of both; a question, however, may arise, in some cases, whether both ought not to be defended together; but the decision of this point must depend on the nature of the case; for if the defence of one party will support the other, I should take them together, if it is likely to be injurious to it, I would separate them. 52. But lest any one may think me inconsiderate in saying that adultery is generally a charge against two persons, but not always, I would add that a woman alone may be accused of adultery with an unknown person: Presents, it may be said, have been found in her house, and money, of which the giver has not been discovered; and love letters, of which it is doubtful to whom they were written. 53. In regard to forged writing the case is similar; for either several persons may be charged with the crime, or one only. The writer of an instrument however will always find it necessary to guarantee the signature of the person who has signed it; but the person who has signed it cannot always guarantee the handwriting of him who is said to have written it; for he may be deceived. But he who is said to have engaged their services, and for whom the instrument is alleged to have been written, will have to support both the writer and all who signed the writing. The sources of proof are similar in cases of treason and of aspiring to sovereignty. * In regard to a deposit it may sometimes be inquired whether the accuser really deposited money, and whether it was ever returned; but these questions will hardly be asked at the same time. Turnebus. + See b. v. c. 5; and c. 10, sect 19. 54 But the custom in the schools, of considering everything in our favour that is not in the argument laid down for us,* may be prejudicial to young men proceeding to the forum. You accuse me of adultery: who is witness? who testifies to the fact? of treason: what reward have I received?† who was privy to the transaction? of administering poison: where did I buy it? from whom? when? for how much? through whose hands did I convey it? Or we plead in defence of one accused of aspiring to tyranny, where were his arms? what guards had he assembled ? 55. I do not deny that such questions may be asked, or that we may urge them on behalf of the party whom we defend; for I myself would call for such proofs in the forum, if I should find my adversary not in a condition to give them. But in the forum we miss the facility for asking such questions that there is in the schools, where scarcely a single cause is pleaded in which some argument of this kind, or perhaps several, are not advanced. 56. Similar is the ease with which some declaimers, in their perorations, assign parents, children, or nurses, to whomsoever they please. Yet we may more reasonably allow a speaker to call for proofs that are not offered than to discuss them as if they were offered. How we must examine as to intention, was sufficiently signified when we distinguished § the three points of inquiry, whether a person had the will, whether he had the power, and whether he did the deed; for in the same manner as it is inquired whether a person had the will, so it is inquired with what intent he acted, that is to say whether he intended to do an evil act. 57. The order in which circumstances are stated, also, either adds to the credit of the statement, or detracts from it; and so much the more as the circumstances are more or less consistent or inconsistent with each other. But these qualities are not discovered but by reference to the connexion of a cause throughout. Yet we must always observe what particular agrees or suits with any other particular. See iv. 2, 28. + Quis index? quod pretium ?] Spalding very justly supposes that the word proditionem has fallen out of the text between index and quod. I have accordingly inserted "of treason" in the translation. All the texts have quos contraxi satellites, but the context seems to require contraxit. § Sect. 27. CHAPTER III. Of definition, it has something in common with conjecture and quality, $ 1, 2. Various reasons why it is used, 3-7. Three species of it, 8-11. Other diversities, more suited to philosophical discussions than to the business of the orator, 12-16. We must beware of defining too subtilely, 17, 18. Method in definition, 19-22. How a definition is overthrown, 23-27. A general definition may be adapted to our own cause, 28-34. Some concluding remarks, 35, 36. 1. NEXT to conjecture respecting a fact comes definition of it, for he who is unable to prove that he has done nothing, will try, in the next place, to make it appear that he has not done that which is laid to his charge. Definition is accordingly managed, for the most part, by the same methods as con jecture, the kind of defence only being changed,* as we may see in cases of theft, deposits, or adultery; for as we say, I have not been guilty of theft, I did not receive a deposit, I have not committed adultery, so we say, what I did is not theft, what I received was not a deposit, what I committed is not adultery. 2. Sometimes we proceed from quality to definition. as in actions regarding madness, bad treatment of a wife, and offences against the state, in which, if it cannot be said that what is laid to the charge of the accused was rightly done, it remains to say, that to act thus is not to be mad, to treat a wife ill, to injure the state. Definition, then, is an explication of something in question, proper, clear, and concisely expressed. 3. It consists chiefly, as has been said,† in the notification of genus, species, differences, and peculiarities; as, to define a horse (for I shall adopt a well known example), the genus is animal, the species mortal, the difference irrational (for man is also a mortal animal,) and the peculiarity neighing. 4. Definition is frequently used in pleading causes, for many reasons; for some- 1 times parties are agreed upon the term, but differ as to what is to be included under it; and sometimes the thing is clear, but there is a doubt as to the term to be applied to it. When there is an agreement about the name, and a doubt about the For in conjectural cases the fact is simply denied; in cases of definition an objection is made to the term applied to the fact. This is the change which Quintilian means. Turnebus. + V. 10, 55. thing the decision sometimes depends upon conjecture; as when it is asked, what is God? 5. For he* who denies that God is a spirit, diffused through every part of the universe, does not say that the term divine is improperly applied to his nature, like Epicurus, who has given him a human form, and a place in the spaces between the worlds. Both† use one term, but are in doubt which of the two naturest is consistent with the reality. 6. Sometimes it is quality that is to be considered, as, What is oratory? is it the power of persuading, or the art of speaking well? This kind of question is very common in civil causes; thus it is inquired, whether a man found with another man's wife in a brothel is an adulterer? because the question is not about the name, but the quality of the act, and whether the man has been guilty of any offence at all; for if he has committed any offence, he can be nothing else but an adulterer. 7. It is a definition of a quite different kind when the question is wholly about a term, the application of which depends on the letter of the law, and which would not be discussed in a court of justice, but for the words which give rise to the dispute. Thus it is inquired, whether he who kills himself is a murderer; whether he who forced a tyrant to kill himself is a tyrannicide; and whether the incantations of magicians are poisons; for about the thing itself there is no controversy, as it is known to all men that it is not the same to kill one's self as to kill another, to kill a tyrant as to drive him to suicide, to recite incantations as to administer a draught of poison, but it is a question whether they do not, respectively, come under the same denomination. 8. Though I hardly dare to dissent from Cicero,§ who, following many authorities, says that definition is always concerned about a thing itself and something else, (as he that denies that a certain term is applicable to a certain thing, is obliged to show what term would be more applicable,) yet I consider that there are, as it were, three species of it.|| 9. For sometimes it is convenient to put a question thus: *The Stoic. + Both the Stoic and the Epicurean. Spalding. A diffused spirit or a human form. Spalding. § See iii. 6, 31. I follow Regius's reading in eandem tres habeo velut species. Most texts omit in. Gesner and Capperonier would read in eadem. When we Is that adultery which is committed in a brothel? deny that it is adultery, it is not necessary to show by what term it ought to be called, for we deny the whole charge. Sometimes the inquiry is made thus: Is this act theft or sacrilege? Not but that it is sufficient for the defence that it is not sacrilege; still it is necessary to show what else it is: and consequently both theft and sacrilege must be defined. 10. Sometimes, again, it is a question with regard to things of different species, whether one can come under the same denomination as the other, when each has its own proper appellation, as a philtre,* and a dose of poison. But in all disputes of this kind the question is whether this also comes under the same term, because the term, about which the dispute is, is acknowledged to be applicable to something else. It is sacrilege to steal what is sacred from a temple; is it also sacrilege to steal from it private property? It is adultery to lie with another man's wife in her own house? is it also adultery to lie with her in a brothel? It is tyrannicide to kill a tyrant; is it also tyrannicide to drive a tyrant to kill himself? 11. Accordingly syllogism, of which I shall speak hereafter,† is, as it were, a weaker kind of definition; because in the one, it is inquired whether the same term is applicable to the thing in question as is applicable to something else; and, in the other, whether one thing is not to be reasoned about in the same manner as another. 12. There is also so much difference in definitions, that it is doubtful, as some think, whether the same thing can be defined in more than one form of words: as, whether rhetoric can be defined not only as the art of speaking well, but also as that In the eighth chapter of this book. * VIII. 5, 31. Est et talis finitionum diversitas, ut quidam sentiunt, num idem diversis verbis comprehendatur.] So stands this passage in all the editions, but who has been satisfied with it, I know not; though some of the commentators pass it in silence. Spalding conjectures ut qui idem sentient, non iisdem verbis comprehendant; but he proposes this conjecture with timidity, and it has the disadvantage of necessitating the change of rhetorice and scientia, immediately following, into the accusative case. What I have given is nearly a translation of the Abbé Gedoyn's French: "Les definitions sont si diverses, selon quelques-uns. que cette diversité donne lieu de douter si une chose peut se definir dans des termes differents." The unsatisfactory state of the text seems to arise from something having fallen out of it. |