Institutio Oratoria

The following [*]( xvi. 45. Caecina had attempted to take possession of lands left him by will, but was driven off by armed force. Cicero has just pointed out that there were precedents for regarding the mere sight of armed men in occupation of the property claimed as sufficient proof of violence. ) provides an example of argument from something more difficult:

I beg you, Tubero, to remark that I, who do not hesitate to speak of my own deed, venture to speak of that performed by Ligarius

Has not Ligarius reason for hope, when I am permitted to intercede with you for another?

Really! Is the knowledge that the men were armed sufficient to prove that violence was offered, and the fact that he fell into their hands insufficient?

I think I should also add that arguments are drawn not merely from admitted facts, but from fictitious suppositions, which the Greeks style καθ᾽ ὑπόθεσιν and that this latter type of argument falls into all the same divisions as those which I have

When I speak of fictitious arguments I mean the proposition of something which, if true, would either solve a problem or contribute to its solution, and secondly the demonstration of the similarity of our hypothesis to the case under consideration. To make this the more readily intelligible to youths who have not yet left school, I will first of all illustrate it by examples of a kind familiar to the young.

There is a law to the effect that

the man who refuses to support his parents is liable to imprisonment.

Such arguments are specially useful when we are arguing against the letter of the law, and are thus employed by Cicero in the pro Caecina [*]( xix. 55. Quintilian merely quotes fragments of Cicero's arguments. The sense of the passages omitted is supplied in brackets. The interdict of the praetor had ordered Caecina's restoration. His adversary is represented by Cicero as attempting to evade compliance by verbal quibbles. ) :

[The interdict contains the words,] ' whence you or your household or your agent had driven him.' If your steward alone had driven me out, [it would not, I suppose, be your household but a member of your household that had driven me out]. . . . If indeed you owned no slave except the one who drove me out, [you would cry, 'If I possess a household at all, I admit that my household drove you out'].

But fictitious suppositions are also exceedingly useful when we are concerned with the quality of an act [*](pro Mur —. xxxix. 83. Cicero argues that Murena's election as consul is necessary to save the state from Catiline. If the jury now condemn him, they will be doing exactly what Catiline and his accomplices, now in arms in Etruria, would do if they could try him. ) :

If

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Catiline could try this case assisted by a jury composed of those scoundrels whom he led out with him he would condemn Lucius Murena.

If this had happened to you during dinner in the midst of your deep potations

If the state could speak.

Such in the main are the usual topics of proof as specified by teachers of rhetoric, but it is not sufficient to classify them generically in our instructions, since from each of them there arises an infinite number of arguments, while it is in the very nature of things impossible to deal with all their individual species. Those who have attempted to perform this latter task have exposed themselves in equal degree to two disadvantages, saying too much and yet failing to cover the whole ground.

Consequently the majority of students, finding themselves lost in an inextricable maze, have abandoned all individual effort, including even that which their own wits might have placed within their power, as though they were fettered by certain rigid laws, and keeping their eyes fixed upon their master have ceased to follow the guidance of nature.

But as it is not in itself sufficient to know that all proofs are drawn either from persons or things, because each of these groups is subdivided into a number of different heads so he who has learned that arguments must be drawn from antecedent, contemporary or subsequent facts will not be sufficiently instructed in the knowledge of the method of handling arguments to understand what arguments are to be drawn from the circumstances of each particular case;

especially as the majority of proofs are to be found in the special circumstances of individual cases and have

This type of argument may reasonably be described as drawn from circumstances, there being no other word to express the Greek περίστασις or from those things which are peculiar to any given case. For instance, in the case of the priest who having committed adultery desired to save his own life by means of the law [*]( This law and those which follow are imaginary laws invented for the purposes of the schools of rhetoric. ) which gave him the power of saving one life, the appropriate argument to employ against him would run as follows:

You would save more than one guilty person, since, if you were discharged, it would not be lawful to put the adulteress to death.

Again, take the case falling under the law which lays down that bankers may pay only half of what they owe, while permitted to recover the whole of what they are owed. One banker requires payment of the whole sum owed him by another banker. The appropriate argument supplied by the subject to the creditor is that there was special reason for the insertion of the clause [*]( The argument is far from clear. The case assumes that by a species of moratorium a banker may be released from payment of his debts in full to ordinary creditors. This moratorium does not however apparently apply to debts contracted between banker and banker. ) sanctioning the recovery of the whole of a debt by a banker, since there was no need of such a law as against others, inasmuch as all have the right to recover the whole of a debt from any save a banker.

But while some fresh considerations are bound to present themselves in every kind of subject, this is more especially the case in questions turning on

And these considerations must vary according to the complexity of laws and other documents, whether they are in agreement or contradictory, since fact throws light on fact and law on law as in the following argument:

I owed you no money: you never summoned me for debt, you took no interest from me, nay, you actually borrowed money from me.

Cicero in the pro Cluentio [*]( xxxvi. 98. The lex Iulia de ambitu contained a provision that the penlty (loss of civil rights) incurred by conviction for ambitus should be annulled if the condemned man could secure the conviction of another person for the same offence. ) says that Publius Popilius and Tiberius Gutta were not condemned for receiving bribes to give a false verdict, but for attempting to bribe the jury. What is his argument in support of this view? That their accusers, who were themselves found guilty of bribing the jury, were restored in accordance with law after winning their case.