sistence; Let it be lawful for a father to disinherit a son who is disobedient to his admonitions. A father who has taken back a son that he had exposed, requires him to marry a rich relation; the son wishes to marry the daughter of the poor person that brought him up. 15. The law regarding children exposed is a subject for moving the feelings; but the decision depends on the law concerning disinheritance. Nor does the question always rest on one law only, but sometimes on more than one, as in a case of άvrivouía, or contradictory laws.† This matter being considered, it will be seen about what points the question is.

A complex defence is such as that in Cicero's speech for Rabirius: If he had killed Saturninus, he would have acted rightly; but he did not kill him. 16. But when we advance many arguments against one proposition, we must consider, in the first place, all the points that can be advanced, and must then settle in what part of our speech it is expedient that each should be stated. 17. In regard to this matter, I do not hold the same opinion which I expressed a little above‡ concerning propositions, and to which I assented in respect to arguments, (in the place in which I treated of proofs,§) that we may sometimes begin with the stronger; for, in refutation, the force of our questions ought always to increase, and to proceed from the weakest to the strongest, whether they be of the same or a different kind. 18. But questions of law may sometimes arise from one ground of dispute after another; those of fact look always to one point; in both, however, the order is the same. But let us speak first of such as are of different kinds, the weakest of which ought to be discussed first.

Hence it is that, after considering some questions, we concede or grant them to the opposite party; for we cannot pass to others unless by dismissing those that come first. 19. This ought to be done in such a manner, that we may not appear to have despaired of them, but to have set them aside, because

*The first of the two laws has no influence in deciding the case; it merely affords a subject for either party to excite the feelings; for the father will say that he took back his exposed son; the son will say that while he was exposed he was brought up by the poor man; and thus each party will have an affecting topic for eloquence. Turnebus. † III. 6, 46, and viii. 7. Sect. 10. § V. 12, 14.

we can establish our cause without them. An agent demands money from a person for interest on an inheritance: a question may arise whether he who is acting as agent has a right to be an agent." 20. Suppose that we, after we have discussed this question, give it up, or are defeated upon it, the next question may be, whether he in whose name the action is brought, has a right to have an agent. Suppose that we give way on this point also, the cause may admit of the question whether he, in whose name the suit is instituted, is heir to the person to whom the interest is due, and sole heir. 21. If these points also be granted, it may be asked whether the money is really due. On the other hand, nobody would be so foolish as to yield what he considered his strongest point, and pass on to others of minor importance. Similar to the preceding case is one that is given in the schools: You must not disinherit an adopted son; though you may disinherit this adopted son, you must not disinherit one who has deserved well of his country; though you may disinherit one who has deserved well of his country, you may not disinherit whatever deserving son has not obeyed your will; though he may have been bound to obey your will in all other things, you may not disinherit him for not having obeyed it in regard to an option, or, if you may disinherit him for an option, not for such an option as this. Such is the dissimilarity in questions of law. 22. But in matters of fact there may be several questions all tending to the same object as if, for instance, a person who is on trial for theft, should say to the accuser, Prove that you had the property; prove that you lost it; prove that you lost it by theft; prove that you lost it by my theft. The first three points may be conceded; the last cannot.

I

23. I used also very frequently§ to adopt this method. went back from the last species (for it is that which commonly contains the point for decision) to the first general question, or descended from the genus to the last species;|| and that even in deliberative causes. 24. Suppose, for example, that Numa deliberates whether he shall accept kingly power when

* IV. 4, 6.

+ III. 6, 8.

See v. 10, 97. § Præcipuè.] I cannot satisfy myself as to the force of this adverb Spalding.

See note on v. 10, 5.

the Romans offer it. First arises the general question, Whether he ought to reign at all; then follow the particular questions, Whether he ought to reign in a country not his own; whether at Rome; whether the Romans will tolerate such a king as himself. The case is similar in matters of controversy: Suppose a man who has deserved well of his country makes choice of another man's wife: the last special question is, Whether a man can make choice of another's wife: The general question is, Whether he who has deserved well of his country ought to receive whatever he makes the object of his choice ;* then follow the inquiries, whether he can choose from the property of a private person; whether he can demand a woman in marriage; whether he can demand one who has a husband. 25. But these questions are not set forth in our speech in the same order in which they occur to us;t for that in general occurs first which is to be expressed last, as thus, You ought not to make choice of another man's wife. Hence haste spoils division. We should not, therefore, content ourselves with what offers; but should inquire something further, as, whether he may not even make choice of a widow; something further still, as, whether he may not choose anything belonging to a private person; or last of all, going back to what is next to the general question, whether he may not make choice of anything unlawful. 26. Examining the proposition of our adversary, therefore, as is very easy, let us decide, if possible, what it is natural should be answered first; and this, if we but contemplate the cause as being actually pleaded, and the necessity laid upon us of replying at once, will readily occur to us.

27. But if it should not occur, let us set aside that which occurs to us first, and reason with ourselves thus: What, if it were otherwise? questioning ourselves a second and a third time, until nothing remain for consideration. Thus we shall examine even the minutest points, which, if well treated, will make the judge more inclined to listen to us on the main

* V. 10, 97; vii. 10, 6.

In our speech questions are not disposed in the same order in which they occur to us in meditation and investigation; for what occurs to us first is generally the hypothesis, or ground of controversy; but it is to be placed last, other questions being put before it.

bus

See iii. 9, 6, and note.

Turno

point. 28. With this process the rule that " we should descend from what is common to what is particular," is not much at variance; for what is common is mostly general. Some person has killed a tyrant, is a common or general proposition; a certain person has killed a tyrant,* a woman has killed him, his wife has killed him,† are particular propositions. 29. I used also to select those points in which I agreed, with my opponent, provided they were to my purpose, and not only to press such matters as he admitted, but to multiply them by division; as in this case: "A general, who, in a competition for public honours, had come off superior to his father, was taken prisoner by the enemy; certain deputies, going to ransom him, met the father on the road as he was returning from the enemy's camp, who said to them, 'You are going too late.' 30. The deputies searched the father, and found a sum of money in gold concealed in the breast of his robe; they then proceeded to their place of destination, and found the general fixed to a cross, who uttered the words, Beware of the traitor.' The father was accused." What is admitted on both sides? That treason was signified, and signified by the general. We try to find the traitor. You admit that you went to the enemy, and went secretly; that you. returned in safety, brought away gold, and had the gold concealed.

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31. What the accused has done, is sometimes set forth very forcibly in the statement of the case, and, if it takes possession of the mind of the judge, his ears are almost closed against the defence. In general, it is to the advantage of the accuser to amass facts, and of the defendant to separate them. I used also to do, with regard to the whole subject of a cause, that which I noticed§ as being done in regard to arguments; that is to say, stating all the particulars that could possibly be urged against me, and overthrowing them one after another, I left nothing remaining but that which I wished to be believed. 32. Thus, in charges of prevarication,||

* Virum tamen tyrannum occidit.] There seems to be some unsoundness in the text here; there is a variety of readings.

†The allusion is to Alexander of Phere, who was killed by his wife Thebe. See Cicero de Inv. ii. 49. § V. 10, 66.

See Seneca, Controv. xxii.

Those advocates are said to prevaricate who set aside true charges

it may be argued, The accused could have been acquitted only by the establishment of his innocence, or by the intervention of some authority, or by force or bribes having been offered to the judges, or through the difficulty of proof, or through prevarication: That he was guilty you admit; no authority inte posed; there was no force offered; you do not complain that the judges were bribed; there was no difficulty in the way of proof; and what remains, then, but that there must have been prevarication? 33. If I could not set aside all the points against me, I at least set aside the greater number. For instance, It is acknowledged that a man was killed; not in a solitary place, to lead me to suspect that he was killed by robbers; not for the sake of booty, for he was not rifled; not in the hope of inheriting anything, for he was poor; Malice must then have been the cause: But who was his enemy? 34. This method, of examining everything that can be said, and of rejecting as it were one particular after another, in order to arrive at the strongest point, not only facilitates the art of division, but also that of invention. Thus, Milo is accused of killing Clodius: He either killed him or did not kill him: It would be safest to deny that he killed him, but if that cannot be done, it must be allowed that he killed him either justly or unjustly; and we must doubtless say justly: He killed him then either intentionally or through necessity; for ignorance cannot be pretended: 35. Whether there was intention, is doubtful, but, as people think that there was, we must attempt some defence of it, and say that the intention was to serve his country. Or shall we say that he killed him through necessity? The encounter with him was then accidental, and not premeditated; one of them therefore was lying in wait: Which of the two? Assuredly Clodius. Do you see how the necessary chain of circumstances leads us to the ground of defence? 36. Let us consider further: He certainly either wished to kill the lier-inwait Clodius, or he did not; it is safer if we can say that he did not: Then the attendants of Milo must have done the deed, without orders from Milo, and without his knowledge. But this timid mode of defence detracts from the credit of

and proofs, and put forward such as are groundless, acting in collusion with the accused person. We call those prevaricators, says Ulpian, who betray the cause, which they profess to support, to their adver aries. Capperonier.