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Cicero, De Oratore

-   Book 1 , 96-184


Translated by J.S.Watson (1860), with some minor alterations. Click on the L symbols to go to the Latin text of each section. Click on ** to go to the translator's footnotes.


Previous sections (1-95)  

[96] L   Here Sulpicius observed: "That has happened by accident, Crassus, which neither Cotta nor I expected, but which we both earnestly desired, I mean, that you should insensibly glide into a discourse of this kind. For, as we were coming hither, we thought it would be a pleasure, if, while you were talking on other matters, we might gather something worthy to be remembered from your conversation; but that you should go into a deep and full discussion on this very study, or art, or faculty, and penetrate into the heart of it, was what we could scarcely venture to hope. [97] For I, who from my early youth, have felt a strong affection for yon both, and even a love for Crassus, having never left his company, could never yet elicit a word from him on the method and art of speaking, though I not only solicited him myself, but endeavoured to move him through the agency of Drusus; on which subject you, Antonius, (I speak but the truth,) never failed to answer my requests and questioning, and have very often told me what you used to notice in speaking. [98] And since each of you has opened a way to these subjects of our research, and since Crassus was the first to commence this discourse, do us the favour to acquaint us fully and exactly what you think about the various kinds of eloquence. If we obtain this indulgence from you, I shall feel the greatest obligation to this school of yours, Crassus, and to your Tusculan villa, and shall prefer your suburban place of study to the famous Academy and Lyceum."    

{22.} [99] L   "Nay rather, Sulpicius," replied Crassus, "let us ask Antonius, who is both capable of doing what you desire, and, as I hear you say, has been accustomed to do so. As to myself, I acknowledge that I have always avoided any such kind of discourse, and have often declined to comply with your requests and appeals, as you just now observed. This I did, not from pride or want of politeness, nor because I was unwilling to aid your just and commendable aspirations, especially as I knew you to be eminently and above others formed and qualified by nature to become a speaker, but, in truth, from being unaccustomed to such kind of discussions, and from being ignorant of those principles which are laid down as foundations of the art." [100] "Then," said Cotta, "since we have got over what we thought the greatest difficulty, to induce you, Crassus, to speak at all upon these subjects, for the rest, it will be our own fault if we let you go before you have explained all that we have to ask." [101] "I believe I must answer," says Crassus, "as is usually written in the formulae for entering on inheritances, ** concerning such points as I know and shall be able." [102] "And which of us," responded Cotta, "can be so presuming as to desire to know or to be able to do anything that you do not know or cannot do?"   "Well, then," replied Crassus, "on condition that I may say that I cannot do what I cannot do, and that I may own that I do not know what I do not know, you may put questions to me at your pleasure."   "We shall, then, first ask of you," said Sulpicius, "what you think of what Antonius has proposed; whether you think that there is any art in speaking?"    "What!" exclaimed Crassus, "do you put a trifling question to me, as to some idle and talkative, though perhaps studious and learned Greek, on which I may speak according to my humour? When do you imagine that I have ever regarded or thought upon such matters, or have not always rather ridiculed the impudence of those men who, seated in the schools, would demand if any one, in a numerous assembly of persons, wished to ask any question, and desire him to speak? [103] This Gorgias of Leontini is said to have first done, who was thought to undertake and promise something vast, in pronouncing himself prepared to speak on all subjects on which any one should be inclined to hear him. But afterwards those men made it a common practice, and continue it to this day; so that there is no topic of such importance, or so unexpected, or so new, on which they do not profess that they will say all that can be said. [104] But if I had thought that you, Cotta, or you, Sulpicius, were desirous to hear such matters, I would have brought hither some Greek to amuse you with their manner of disputation; for there is with M. Piso, ** (a youth already addicted to this intellectual exercise, and one of superior talents, and of great affection for me,) the Peripatetic Staseas, a man with whom I am well acquainted, and who, as I perceive is agreed amongst the learned, is of the greatest eminence in his profession."    

{23.} [105] L   "Why do you speak to me," says Scaevola, "of this Staseas, this Peripatetic ? You must comply with the wishes of these young gentlemen, Crassus, who do not want the common, profitless talk of any Greek, or any empty declamation of the schools, but desire to know the opinions of a man in whose footsteps they long to tread, one who is the wisest and most eloquent of all men, who is not distinguished by petty books of precepts, but is the first, both in judgment and oratory, in cases of the greatest consequence, and in this seat of empire and glory. [106] For my part, as I always thought you a god in eloquence, so I have never attributed to you greater praises for oratory than for politeness; which you ought to show on this occasion especially, and not to decline a discussion on which two young men of such excellent ability invite you to enter." [107] "I am certainly," replied Crassus, "desirous to oblige them, nor shall I think it any trouble to speak briefly, as is my manner, what I think upon any point of the subject. And to their first question, (because I do not think it right for me to neglect your admonition, Scaevola,) I answer, that I think there is either no art of speaking at all, or but very little; but that all the disputation about it amongst the learned arises from a difference of opinion about the word. [108] For if art is to be defined according to what Antonius just now asserted, ** as lying in things thoroughly understood and fully known, such as are separated from the caprice of opinion and comprehended in the limits of science, there seems to me to be no art at all in oratory; since all the types of our forensic diction are varied, and suited to the common understanding of the people. [109] Yet if those things which have been observed in the practice and method of speaking, have been noted and chronicled by ingenious and skilful men, have been set forth in words, illustrated in their several kinds, and distributed into parts, (as I think may possibly be done,) I do not understand why speaking may not be deemed an art, if not according to the exact definition of Antonius, at least according to common opinion. But whether it be an art, or merely the resemblance of an art, it is not, indeed, to be neglected; yet we must understand that there are other things of more consequence for the attainment of eloquence."    

{24.} [110] L   Antonius then observed, that he was very strongly of the same opinion as Crassus; for he neither adopted such a definition of art as those preferred who attributed all the powers of eloquence to art, nor did he repudiate it entirely, as most of the philosophers had done. "But I imagine, Crassus," added he, "that you will gratify these two young men, if you will specify those particulars which you think may be more conducive to oratory than art itself." [111] "I will indeed mention them," said he, "since I have engaged to do so, but must beg you not to publish my trifling remarks; though I will keep myself under such restraint as not to seem to speak like a master, or artist, but like one of the number of private citizens, moderately versed in the practice of the forum, and not altogether ignorant; not to have offered anything from myself, but to have accidentally fallen in with the course of your conversation. [112] Indeed, when I was a candidate for office, I used, at the time of canvassing, to send away Scaevola from me, telling him I wanted to be foolish, that is, to solicit with flattery, a thing that cannot be done to any purpose unless it be done foolishly; and that he was the only man in the world in whose presence I should least like to play the fool; and yet fortune has appointed him to be a witness and spectator of my folly. ** For what is more foolish than to speak about speaking, when speaking itself is never otherwise than foolish, except it is absolutely necessary? " [113] "Proceed, however, Crassus," said Scaevola; "for I will take upon myself the blame which you fear."    

{25.} "I am, then, of opinion," said Crassus, "that nature and genius in the first place contribute most aid to speaking; and that to those writers on the art, to whom Antonius just now alluded, it was not skill and method in speaking, but natural talent that was wanting; for there ought to be certain lively powers in the mind ** and understanding, which may be acute to invent, fertile to explain and adorn, and strong and retentive to remember; [114] and if any one imagines that these powers may be acquired by art, (which is false, for it is very well if they can be animated and excited by art; but they certainly cannot by art be ingrafted or instilled, since they are all the gifts of nature,) what will he say of those qualities which are certainly born with the man himself, volubility of tongue, tone of voice, strength of lungs, and a peculiar conformation and aspect of the whole countenance and body ? [115] I do not say, that art cannot improve in these particulars, (for am not ignorant that what is good may be made better by education, and what is not very good may be in some degree polished and amended;) but there are some persons so hesitating in their speech, so inharmonious in their tone of voice, or so unwieldy and rude in the air and movements of their bodies, that, whatever power they possess either from genius or art, they can never be reckoned in the number of accomplished speakers; while there are others so happily qualified in these respects, so eminently adorned with the gifts of nature, that they seem not to have been born like other men, but moulded by some divinity. [116] It is, indeed, a great task and enterprise for a person to undertake and profess, that while every one else is silent, he alone must be heard on the most important subjects, and in a large assembly of men; for there is scarcely any one present who is not sharper and quicker to discover defects in the speaker than merits; and thus whatever offends the hearer effaces the recollection of what is worthy of praise. [117] I do not make these observations for the purpose of altogether deterring young men from the study of oratory, even if they be deficient in some natural endowments. For who does not perceive that to C. Caelius, my contemporary, a new man, the mere mediocrity in speaking, which he was enabled to attain, was a great honour ? Who does not know that Q. Varius, your equal in age, a clumsy, uncouth man, has obtained his great popularity by the cultivation of such faculties as he has ?    

{26.} [118] L   "But as our inquiry regards the complete orator, we must imagine, in our discussion, an orator from whom every kind of fault is abstracted, and who is adorned with every kind of merit. For if the multitude of suits, if the variety of cases, if the rabble and barbarism of the forum, afford room for even the most wretched speakers, we must not, for that reason, take our eyes from the object of out inquiry. In those arts, in which it is not indispensable usefulness that is sought, but liberal amusement for the mind, how nicely, how almost fastidiously, do we judge! For there are no suits or controversies which can force men, though they may tolerate indifferent orators in the forum, to endure also bad actors upon the stage. [119] The orator therefore must take the most studious precaution not merely to satisfy those whom he necessarily must satisfy, but to seem worthy of admiration to those who are at liberty to judge impartially. If you would know what I myself think, I will express to you, my intimate friends, what I have hitherto never mentioned, and thought that I never should mention. To me, those who speak best, and speak with the utmost ease and grace, appear, if they do not commence their speeches with some timidity, and show some confusion in the exordium, to have almost lost the sense of shame, though it is impossible that such should not be the case; ** [120] for the better qualified a man is to speak, the more he fears the difficulties of speaking, the uncertain success of a speech, and the expectation of the audience. But he who can produce and deliver nothing worthy of his subject, nothing worthy of the name of an orator, nothing worthy the attention of his audience, seems to me, though he be ever so confused while he is speaking, to be downright shameless; for we ought to avoid a character for shamelessness, not by exhibiting shame, but by not doing that which does not become us. [121] But the speaker who has no shame (as I see to be the case with many) I regard as deserving, not only of rebuke, but of personal castigation. Indeed, what I often observe in you I very frequently experience in myself, that I turn pale in the outset of my speech, and feel a tremor through my whole thoughts, as it were, and limbs. When I was a young man, I was on one occasion so timid in commencing an accusation, that I owed to Q. Maximus ** the greatest of obligations for immediately dismissing the assembly, as soon as he saw me absolutely disheartened and incapacitated through fear." [122] Here they all signified assent, looked significantly at one another, and began to talk together; for there was a wonderful modesty in Crassus, which however was not only no disadvantage to his oratory, but even an assistance to it, by giving it the recommendation of probity,    

{27.} Antonius soon after said, "I have often observed, as you mention, Crassus, that both you and other most accomplished orators, although in my opinion none was ever equal to you, have felt some agitation in entering upon their speeches. When I inquired into the reason of this, and considered why a speaker, the more ability he possessed, felt the greater fear in speaking, I found that there were two causes of such timidity: one, that those whom experience [123] and nature had formed for speaking, well knew that the event of a speech did not always satisfy expectation even in the greatest orators; and thus, as often as they spoke, they feared, not without reason, that what sometimes happened might happen then; [124] the other (of which I am often in the habit of complaining) is, that men, tried and approved in other arts, if they ever do anything with less success than usual, are thought either to have lacked interest in it, or to have failed in performing what they knew how to perform from ill health. 'Roscius,' they say, 'would not act today,' or, 'he was indisposed.' But if any deficiency is seen in the orator, it is thought to proceed from want of sense; [125] and want of sense admits of no excuse, because nobody is supposed to have wanted sense because he 'was indisposed,' or because 'such was his inclination.' Thus we undergo a severer judgment in oratory, and judgment is pronounced upon us as often as we speak; if an actor is once mistaken in an attitude, he is not immediately considered to be ignorant of attitude in general; but if any fault is found in a speaker, there prevails for ever, or at least for a very long time, a notion of his stupidity.    

{28.} [126] L   "But in what you observed, as to there being many things in which, unless the orator has a full supply of them from nature, he cannot be much assisted by a master I agree with you entirely; and, in regard to that point, I have always expressed the greatest approval for that eminent teacher, Apollonius of Alabanda, ** who, though he taught for pay, would not suffer such as he judged could never become orators, to waste their effort with him; and he sent them away with exhortations and encouragements to each of them to pursue that peculiar art for which he thought him naturally qualified. [127] To the acquirement of other arts it is sufficient for a person to resemble a man, and to be able to comprehend in his mind, and retain in his memory, what is instilled, or, if he is very dull, inculcated into him; no volubility of tongue is necessary, no quickness of utterance; none of those things which we cannot form for ourselves, aspect, countenance, look, voice. [128] But in an orator, the acuteness of the logicians, the wisdom of the philosophers, the language almost of poetry, the memory of lawyers, the voice of tragedians, the gesture almost of the best actors, is required. Nothing therefore is more rarely found among mankind than a consummate orator; for qualifications which professors of other arts are commended for acquiring in a moderate degree, each in his respective pursuit, will not be praised in the orator, unless they are all combined in him in the highest possible excellence."    

[129] L   "Yet observe," said Crassus, "how much more diligence is used in one of the light and trivial arts than in this, which is acknowledged to be of the greatest importance; for I often hear Roscius say, that 'he could never yet find a pupil that he was thoroughly satisfied with; not that some of them were not worthy of approbation, but because, if they had any fault, he himself could not endure it.' Nothing indeed is so much noticed, or makes an impression of such lasting continuance on the memory, as that in which you give any sort of offence. [130] To judge therefore of the accomplishments of the orator by comparison with this stage-actor, do you not observe how everything is done by him unexceptionably; everything with the utmost grace; everything in such a way as is becoming, and as moves and delights all? He has accordingly long attained such distinction, that in whatever pursuit a man excels, he is called a Roscius in his art. For my own part, while I desire this finish and perfection in an orator, of which I fall so far short myself, I act audaciously; for I wish indulgence to be granted to myself, while I grant none to others; for I think that he who has not abilities, who is faulty in action, who, in short, lacks a graceful manner, should be sent off, as Apollonius advised, to that for which he has a capacity."    

{29.} [131] L   "Would you then," said Sulpicius, "desire me, or our friend Cotta, to learn the civil law, or the military art? ** for who can ever possibly arrive at that perfection of yours, that high excellence in every accomplishment?"   "It was," replied Crassus, "because I knew that there was in both of you excellent and noble talents for oratory, that I have expressed myself fully on these matters; nor have I adapted my remarks more to deter those who had not abilities, than to encourage you who had; and though I perceive in you both consummate capacity and industry, yet I may say that the advantage of personal appearance, on which I have perhaps said more than the Greeks are wont to say, are in you, Sulpicius, even godlike. [132] For any person better qualified for this profession by gracefulness of motion, by his very carriage and figure, or by the fulness and sweetness of his voice, I think that I have never heard speak; endowments which those, to whom they are granted by nature in an inferior degree, may yet succeed in managing, in such measure as they possess them, with judgment and skill, and in such a manner as not to be unbecoming; for that is what is chiefly to be avoided, and concerning which it is most difficult to give any rules for instruction, not only for me, who talk of these matters like a private citizen, but even for Roscius himself, whom I often hear say that the most essential part of art is to be becoming, which yet is the only thing that cannot be taught by art. [133] But, if it is agreeable, let us change the subject of conversation, and talk like ourselves a little, not like rhetoricians."    

"By no means," said Cotta, "for we must now entreat you (since you retain us in this study, and do not dismiss us to any other pursuit) to tell us something of your own abilities, whatever they are, in speaking; for we are not inordinately ambitious; we are satisfied with that mediocrity of eloquence of yours; and what we inquire of you is (that we may not attain more than that humble degree of oratory at which you have arrived) ** what you think, since you say that the endowments to be derived from nature are not very deficient in us, we ought to endeavour to acquire in addition."    

{20.} [134] L   Crassus, smiling, replied, "What do you think is wanting to you, Cotta, but a passionate inclination, and a sort of ardour like that of love, without which no man will ever attain anything great in life, and especially such distinction as you desire? Yet I do not see that you need any encouragement to this pursuit; indeed, as you press rather hard even upon me, I consider that you burn with an extraordinarily fervent affection for it. [135] But I am aware that a desire to reach any point avails nothing, unless you know what will lead and bring you to the mark at which you aim. Since therefore you lay but a light burden upon me, and do not question me about the whole art of the orator, but about my own ability, little as it is, I will set before you a course, not very obscure, or very difficult, or grand, or imposing, the course of my own practice, which I was accustomed to pursue when I had opportunity, in my youth, to apply to such studies."    

[136] L   "O day much wished for by us, Cotta!" exclaimed Sulpicius; "for what I could never obtain, either by entreaty, or stratagem, or scrutiny, (so that I was unable, not only to see what Crassus did, with a view to meditation or composition, but even to gain a notion of it from his secretary and reader, Diphilus,) I hope we have now secured, and that we shall learn from himself all that we have long desired to know."    

{31.} [137] L   "I conceive, however," proceeded Crassus, "that when you have heard me, you will not so much admire what I have said, as think that, when you desired to hear, there was no good reason for your desire; for I shall say nothing abstruse, nothing to answer your expectation, nothing either previously unheard by you, or new to any one. In the first place, I will not deny that, as becomes a man well born and liberally educated, I learned those trite and common precepts of teachers in general; [138] first, that it is the business of an orator to speak in a manner adapted to persuade; next, that every speech is either upon a question concerning a matter in general, without specification of persons or times, or concerning a matter referring to certain persons and times. [139] But that, in either case, whatever falls under controversy, the question with regard to it is usually, whether such a thing has been done, or, if it has been done, of what nature it is, or by what name it should be called; or, as some add, whether it seems to have been done rightly or not. [140] That controversies arise also on the interpretation of writing, in which anything has been expressed ambiguously, or contradictorily, or so that what is written is at variance with the writer's evident intention; and that there are certain lines of argument adapted to all these cases. [141] But that of such subjects as are distinct from general questions, part come under the head of judicial proceedings, part under that of deliberations; and that there is a third kind which is employed in praising or censuring particular persons. That there are also certain common places on which we may insist in judicial proceedings, in which equity is the object; others, which we may adopt in deliberations, all which are to be directed to the advantage of those to whom we give counsel; others in panegyric, in which all must be referred to the dignity of the persons commended. [142] That since all the business and art of an orator is divided into five parts, ** he ought first to find out what he should say; next, to dispose and arrange his matter, not only in a certain order, but with a sort of power and judgment; then to clothe and deck his thoughts with language; then to secure them in his memory; and lastly, to deliver them with dignity and grace. [143] I had learned and understood also, that before we enter upon the main subject, the minds of the audience should be conciliated by an exordium; next, that the case should be clearly stated; then, that the point in controversy should be established; then, that what we maintain should be supported by proof, and that whatever was said on the other side should be refuted; and that, in the conclusion of our speech, whatever was in our favour should be amplified and enforced, and whatever made for our adversaries should be weakened and invalidated.    

{32.} [144] L   "I had heard also what is taught about the adornment of a speech; in regard to which it is first directed that we should speak correctly and in pure Latin; next, intelligibly and with perspicuity; then gracefully; then suitably to the dignity of the subject, and as it were becomingly; and I had made myself acquainted with the rules relating to every particular. [145] Moreover, I had seen art applied to those things which are properly endowments of nature; for I had gone over some precepts concerning action, and some concerning artificial memory, which were short indeed, but requiring much exercise; matters on which almost all the learning of those artificial orators is employed; and if I should say that it is of no assistance, I should say what is not true; for it conveys some hints to admonish the orator, as it were, to what he should refer each part of his speech, and to what points he may direct his view, so as not to wander from the object which he has proposed to himself. [146] But I consider that with regard to all precepts the case is this, not that orators by adhering to them have obtained distinction in eloquence; but that certain persons have noticed what men of eloquence practised of their own accord, and formed rules accordingly; ** so that eloquence has not sprung from art, but art from eloquence; not that, as I said before, I entirely reject art, for it is, though not essentially necessary to oratory, yet proper for a man of liberal education to learn. [147] And by you, my young friends, some preliminary exercise must be undergone; though indeed you are already on the course; but those ** who are to enter upon a race, and those who are preparing for what is to be done in the forum, as their field of battle, may alike previously learn, and try their powers, by practising in sport." [148] "That sort of exercise," said Sulpicius, "is just what we wanted to understand; but we desire to hear more at large what you have briefly and cursorily delivered concerning art; though such matters are not strange even to us. Of that subject, however, we shall inquire hereafter; at present we wish to know your sentiments on exercise."    

{33.} [149] L   "I like that method," replied Crassus, "which you are accustomed to practise, namely, to put forward a case similar to those which are brought on in the forum, and to speak upon it, as nearly as possible, as if it were a real case. ** But in such efforts the majority of students exercise only their voice (and not even that skilfully), and try their strength of lungs, and volubility of tongue, and please themselves with a torrent of their own words; in which exercise what they have heard deceives them, that men by speaking succeed in becoming speakers. [150] For it is truly said also, that men by speaking badly make sure of becoming bad speakers. In those exercises, therefore, although it be useful even frequently to speak spontaneously, yet it is mere advantageous, after taking time to consider, to speak with greater preparation and accuracy. But the chief point of all is that which (to say the truth) we hardly ever practise (for it requires great labour, which most of us avoid); I mean, to write as much as possible. Writing is said to be the best and most excellent modeller and teacher of oratory; and not without reason; for if what is meditated and considered easily surpasses sudden and extemporary speech, a constant and diligent habit of writing will surely be of more effect than meditation and consideration itself; [151] since all the arguments relating to the subject on which we write, whether they are suggested by art, or by a certain power of genius and understanding, will present themselves, and occur to us, while we examine and contemplate it in the full light of our intellect; and all the thoughts and words, which are the most expressive of their kind, must of necessity come under and submit to the keenness of our judgment while writing; and a fair arrangement and collocation of the words is effected by writing, in a certain rhythm and measure, not poetical, but oratorical. [152] Such are the qualities which bring applause and admiration to good orators; nor will any man ever attain them, unless after long and great practice in writing, however resolutely he may have exercised himself in extemporary speeches; and he who comes to speak after practice in writing brings this advantage with him, that though he speak on the spur of the moment, yet what he says will bear a resemblance to something written; and if ever, when he comes to speak, he brings anything with him in writing, the rest of his speech, when he departs from what is written, will flow on in a similar strain. [153] As, when a boat has once been impelled forward, though the rowers suspend their efforts, the vessel herself still keeps her motion and course during the intermission of the impulse and force of the oars; so, in a continued stream of oratory, when written matter fails, the rest of the speech maintains a similar flow, being impelled by the resemblance and force acquired from what was written.    

{34.} [154] L   "But in my daily exercises I used, when a youth, to adopt chiefly that method which I knew that Gaius Carbo, my adversary, ** generally practised; which was, that, having selected some stirring piece of poetry, or read over such a portion of a speech as I could retain in my memory, I used to declaim upon what I had been reading in other words, chosen with all the judgment that I possessed. But at length I perceived that in that method there was this inconvenience, that Ennius, if I exercised myself on his verses, or Gracchus, if I laid one of his orations before me, had forestalled such words as were peculiarly appropriate to the subject, and such as were the most elegant and altogether the best; so that, if I used the same words, it profited nothing; if others, it was even prejudicial to me, as I accustomed myself to use such as were less eligible. [155] Afterwards I thought it proper, and continued the practice at a rather more advanced age, ** to translate the speeches of the best Greek orators; ** by fixing upon which I gained this advantage, that while I rendered into Latin what I had read in Greek, I not only used the best words, and yet such as were of common occurrence, but also formed some words by imitation, which would be new to our countrymen, taking care, however, that they were unobjectionable.    

[156] L   "As to the exertion and exercise of the voice, of the breath, of the whole body, and of the tongue itself; they do not so much require art as labour; but in those matters we ought to be particularly careful whom we imitate and whom we would wish to resemble. Not only orators are to be observed by us, but even actors, lest by bad habits we contract any awkwardness or ungracefulness. [157] The memory is also to be exercised, by learning accurately by heart as many of our own writings, and those of others, as we can. In exercising the memory, too, I shall not object if you accustom yourself to adopt that plan of referring to places and figures which is taught in treatises on the art. ** Your language must then be brought forth from this domestic and private exercise, into the midst of the field, into the dust and clamour, into the camp and military array of the forum; you must acquire practice in everything; you must try the strength of your understanding; and your private studies must be exposed to the light of reality. [158] The poets must also be studied; an acquaintance must be formed with history; the writers and teachers in all the liberal arts and sciences must be read, and turned over, and must, for the sake of exercise, be praised, interpreted, corrected, censured, refuted; you must dispute on both sides of every question; and whatever may seem maintainable on any point, must be brought forward and illustrated. [159] The civil law must be thoroughly studied; laws in general must be understood; all antiquity must be known; the usages of the senate, the nature of our government, the rights of our allies, our treaties and conventions, and whatever concerns the interests of the state, must be learned. A certain intellectual grace must also be extracted from every kind of refinement, with which, as with salt, every oration must be seasoned. I have poured forth to you all I had to say, and perhaps any citizen whom you had laid hold of in any company whatever, would have replied to your inquiries on these subjects equally well."   

{35.} [160] L   When Crassus had uttered these words a silence ensued. But though enough seemed to have been said in the opinion of the company present, in reference to what had been proposed, yet they thought that he had concluded his speech more abruptly than they could have wished. Scaevola then said, "What is the matter, Cotta? why are you silent ? Does nothing more occur to you which you would wish to ask Crassus?" [161] "Nay," he replied, "that is the very thing of which I am thinking; for the rapidity of his words was such, and his speech was winged with such speed, that though I perceived its force and energy I could scarcely see its track and course; and, as if I had come into some rich and well-furnished house, where the furniture ** was not unpacked, nor the plate set out, nor the pictures and statues placed in view, but a multitude of all these magnificent things laid up and heaped together; so just now, in the speech of Crassus, I saw his opulence and the riches of his genius, through veils and curtains as it were; but when I desired to take a nearer view, there was scarcely opportunity for taking a glance at them; I can therefore neither say that I am wholly ignorant of what he possesses, nor that I have plainly ascertained and beheld it." [162] "Then," said Scaevola, "why do you not act in the same way as you would do, if you had really come into a house or villa full of rich furniture? If everything was put by as you describe, and you had a great curiosity to see it, you would not hesitate to ask the master to order it to be brought out, especially if he was your friend; in like manner you will now surely ask Crassus to bring forth into the light that profusion of splendid objects which are his property, (and of which, piled together in one place, we have caught a glimpse, as it were through a lattice, ** as we passed by,) and set everything in its proper situation." [163] "I rather ask you, Scaevola," says Cotta, "to do that for me; (for modesty forbids Sulpicius and myself to ask of one of the most eminent of mankind, who has ever held in contempt this kind of disputation, such things as he perhaps regards only as rudiments for children;) but do you oblige us in this, Scaevola, and prevail on Crassus to unfold and enlarge upon those matters which he has crowded together, and crammed into so small a space in his speech." [164] "Indeed," said Scaevola, "I desired that before, more upon your account than my own; nor did I feel so much longing for this discussion from Crassus, as I experience pleasure from his speeches in pleading. But now, Crassus, I ask you also on my own account, that since we have so much more leisure than has been allowed us for long time, you would not think it troublesome to complete the edifice which you have commenced; for I see a finer and better plan of the whole work than I could have imagined, and one of which I strongly approve."    

{36.} [165] L   "I cannot sufficiently wonder," says Crassus, "that even you, Scaevola, should require of me that which I do not understand like those who teach it, and which is of such a nature, that if I understood it ever so well, it would be unworthy of your wisdom and attention."   "Say you so?" replied Scaevola. "If you think it scarcely worthy of my age to listen to those ordinary precepts, commonly known everywhere, can we possibly neglect those other matters which you said must be known by the orator, respecting the dispositions and manners of mankind, the means by which the minds of men are excited or calmed, history, antiquity, the administration of the republic, and finally of our own civil law itself? For I knew that all this science, this abundance of knowledge, was within the compass of your understanding, but had never seen such rich furniture in the outfit of an orator."    

[166] L   "Can you then," says Crassus, "(to omit other things innumerable and without limit, and come to your study, the civil law,) can you account them orators, for whom Scaevola, ** though in haste to go to the Campus Martius, waited several hours, sometimes laughing and sometimes angry, while Hypsaeus, in the loudest voice, and with a multitude of words, was trying to obtain of Marcus Crassus, the praetor, that the party whom he defended might be allowed to lose his suit; and Gnaeus Octavius, a man of consular dignity, in a speech of equal length, refused to consent that his adversary should lose his case, and that the party for whom he was speaking should be released from the ignominious charge of having been unfaithful in his guardianship, and from all trouble, through the folly of his antagonist?" ** [167] "I should have thought such men," replied Scaevola, "(for I remember Mucius ** told me the story,) not only unworthy of the name of orators, but unworthy even to appear to plead in the forum."   "Yet," replied Crassus, "those advocates neither wanted eloquence, nor method, nor abundance of words, but a knowledge of the civil law: for in this case one, in bringing his suit, sought to recover more damages than the law of the Twelve Tables allowed, and, if he had gained those damages, would have lost his case: the other thought it unjust that he himself should be proceeded against for more than was allowed in that sort of action, and did not understand that his adversary, if he proceeded in that manner, would lose his suit.    

{37.} [168] L   "Within these few days, ** while we were sitting at the tribunal of our friend Quintus Pompeius, the city praetor, did not a man who is ranked among the eloquent pray that the benefit of the ancient and usual exception, of which sum there is time for payment, might be allowed to a party from whom a sum of money was demanded; an exception which he did not understand to be made for the benefit of the creditor; so that if the defendant ** had proved to the judge that the action was brought for the money before it became due, the plaintiff, ** on bringing a fresh action, would be precluded by the exception, that the matter had before come into judgment. [169] What more disgraceful therefore can possibly be said or done, than that he who has assumed the character of an advocate, ostensibly to defend the causes and interests of his friends, to assist the distressed, to relieve such as are sick at heart, and to cheer the afflicted, should so err in the slightest and most trivial matters, as to seem an object of pity to some, and of ridicule to others? [170] I consider my relation, Publius Crassus, who from his wealth had the surname of Dives, ** to have been, in many other respects, a man of taste and elegance, but especially worthy of praise and commendation on this account, that (as he was the brother of Publius Scaevola) ** he was accustomed to observe to him, that neither could he ** have satisfied the claims of the civil law if he had not added the power of speaking (which his son here, who was my colleague in the consulate, has fully attained); nor had he himself ** begun to practise, and plead the cases of his friends, before he had gained a knowledge of the civil law. [171] What sort of character was the illustrious Marcus Cato? Was he not possessed of as great a share of eloquence as those times and that age ** would admit in this city, and at the same time the most learned of all men in the civil law? I have been speaking for some time the more timidly on this point, because there is with us a man ** eminent in speaking, whom I admire as an orator beyond all others; but who has ever held the civil law in contempt. [172] But, as you desired to learn my sentiments and opinions, I will conceal nothing from you, but, as far as I am able, will communicate to you my thoughts upon every subject.    

{38.} "The almost incredible, unparalleled, and divine power of genius in Antonius appears to me, although wanting in legal knowledge, to be able easily to sustain and defend itself with the aid of other weapons of reason; let him therefore be an exception; but I shall not hesitate to condemn others, by my sentence, of lack of effort in the first place, and of lack of modesty in the next. [173] For to flutter about the forum, to loiter in courts of justice and at the tribunals of the praetors, to undertake private suits in matters of the greatest concern, in which the question is often not about fact, but about equity and law, to swagger in cases heard before the centumviri, ** in which the laws of prescriptive rights, of guardianship, of kindred, ** of agnation, ** of alluvions, circumluvions, ** of bonds, of transferring property, of party walls, lights, stillicidia, ** of wills, transgressed or established, and innumerable other matters are debated, when a man is utterly ignorant what is properly his own, and what his neighbour's, why any person is considered a citizen or a foreigner, a slave or a freeman, is a proof of extraordinary impudence. [174] It is ridiculous arrogance for a man to confess himself unskilful in navigating smaller vessels, and yet say that he has learned to pilot galleys with five banks of oars, or even larger ships. You who are deceived by a quibble of your adversary in a private company, you who set your seal to a deed for your client, in which that is written by which he is outdone; can I think that any case of greater consequence ought to be entrusted to you? Sooner assuredly shall he who upsets a two-oared boat in the harbour steer the vessel of the Argonauts in the Euxine Sea.    

[175] L   "But what if the cases are not trivial, but often of the utmost importance, in which disputes arise concerning points of civil law ? What impudence must that advocate have who dares to appear in cases of such a nature without any knowledge of that law? What case, for instance, could be of more consequence than that of the soldier, of whose death a false report was brought home from the army, and his father, through giving credit to that report, altered his will, and appointed another person, whom he thought proper, to be his heir; and after the father himself died, the affair, when the soldier returned home and instituted a suit for his paternal inheritance, came on to be heard before the centumviri? The point assuredly in that case was a question of civil law: whether a son could be disinherited of his father's possessions, whom the father neither appointed his heir by will, nor disinherited by name? **    

{39.} [176] L   "On the point too which the centumviri decided between the Marcelli and the Claudii, two patrician families, when the Marcelli said that an estate, which had belonged to the son of a freedman, reverted to them by right of lineage, and the Claudii alleged that the property of the man reverted to them by right of clanship, was it not necessary for the pleaders in that case to speak upon all the rights of lineage and clanship? ** [177] As to that other matter also, which we have heard was contested at law before the centumviri, when an exile came to Rome, (who had the privilege of living in exile at Rome, if he attached himself to any citizen as a patron,) and died intestate, was not, in a case of that nature, the law of attachment, ** obscure and indeed unknown, expounded and illustrated by the pleader? [178] When I myself lately defended the case of Sergius Orata, on a private suit against our friend Antonius, did not my whole defence turn upon a point of law? For when Marius Gratidianus had sold a house to Orata, and had not specified, in the deed of sale, that any part of the building owed service, ** we argued, that for whatever encumbrance attended the thing sold, if the seller knew of it, and did not make it known, he ought to indemnify the purchaser. ** [179] In this kind of action our friend Marcus Bucculeius, a man not a fool in my opinion, and very wise in his own, and one who has no aversion to the study of law, made a mistake lately, in an affair of a somewhat similar nature. For when he sold a house to Lucius Fufius, he engaged, in the act of conveyance, that the window-lights should remain as they then were. But Fufius, as soon as a building began to rise in some part of the city, which could but just be seen from that house, brought an action against Bucculeius, on the ground that whatever portion of the sky was intercepted, at however great a distance, the window-light underwent a change. ** [180] Amidst what a concourse of people too, and with what universal interest, was the famous case between Manius Curius and Marcus Coponius lately conducted before the centumviri ! On which occasion Quintus Scaevola, my equal in age, and my colleague, ** a man of all others the most learned in the practice of the civil law, and of most acute genius and discernment, a speaker most polished and refined in his language, and indeed, as I am accustomed to remark, the best orator among the lawyers, and the best lawyer among the orators, argued the law from the letter of the will, and maintained that he who was appointed second heir, after a posthumous son should be born and die, could not possibly inherit, unless such posthumous son had actually been born, and had died before he came out of tutelage: I, on the other side, argued that he who made the will had this intention, that if there was no son at all who could come out of tutelage, Manius Curius should be his heir. Did either of us, in that case, fail to exert ourselves in citing authorities, and precedents, and forms of wills, that is, to dispute on the profoundest points of civil law? **    

{40.} [181] L   "I forbear to mention many examples of cases of the greatest consequence, which are indeed without number. It may often happen that even very important cases may turn upon a point of law; for, as an example, Publius Rutilius, the son of Marcus, when tribune of the people, ordered Gaius Mancinus, a most noble and excellent man, and of consular dignity, to be expelled from the senate; on the occasion when the chief herald had given him up to the Numantines, according to a decree of the senate, passed on account of the odium which he had incurred by his treaty with that people, and they would not receive him, ** and he had then returned home, and had not hesitated to take his place in the senate; the tribune, I say, ordered him to be expelled from  the house, maintaining that he was not a citizen; because it was a received tradition, that he whom his own father, or the people, had sold, or the chief herald had given up, had no postliminium ** or right of return. [182] What more important case or argument can we find, among all the variety of civil transactions, than one concerning the rank, the citizenship, the liberty, the condition of a man of consular dignity, especially as the case depended, not on any charge which he might deny, but on the interpretation of the civil law? In a like case, but concerning a person of inferior rank, it was inquired among our ancestors, whether, if a person belonging to a state in alliance with Rome had been in slavery amongst us, and gained his freedom, and afterwards returned home, he returned by the right of postliminium, and lost the citizenship of this city. [183] May not a dispute arise on a point of civil law respecting liberty, than which no case can be of more importance, when the question is, for example, whether he who is enrolled as a citizen, by his master's consent, is free at once, or when the lustrum is completed? As to the case also, that happened in the memory of our fathers, when the father of a family, who had come from Spain to Rome, and had left a wife pregnant in that province, and married another at Rome, without sending any notice of divorce to the former, and died intestate, after a son had been born of each wife, did a small matter come into controversy, when the question was concerning the rights of two citizens, I mean concerning the boy who was born of the latter wife and his mother, who, if it were adjudged that a divorce was effected from a former wife by a certain set of words, and not by a second marriage, would be deemed a concubine? [184] For a man, then, who is ignorant of these and other similar laws of his own country, to wander about the forum with a great crowd at his heels, erect and haughty, looking hither and thither with a gay and assured face and air, offering and tendering protection to his clients, assistance to his friends, and the light of his genius and counsel to almost all his fellow-citizens, is it not to be thought in the highest degree scandalous?

Following sections (185-265)



FOOTNOTES

  

(1)   Cretionibus. An heir was allowed a certain time to determine, cernere, whether he would enter upon an estate bequeathed to him, or not. See Cic. ad Att. xi. 12; xiii. 46; Gaius, Instit. ii. l64; Ulpian, Fragm. xxii. 27; Heinecc. Syntagm. ii. 14, 17. 

(2)   Marcus Pupius Piso Calpurnianus, to whom Cicero was introduced by his father, that he might profit by his learning and experience. See Ascon. Pedian. ad Pison. 26; Cic. Brut. 67; De Nat. Deor. 7, 16. 

(3)   C. xx. 

(4)   See Val. Max. iv. 5. 4. 

(5)   Animi atque ingenii celeres quidam motus. This sense of motus, as Ellendt observes, is borrowed from the Greek kinesis, by which the philosophers intimated an active power, as, without motion, all things would remain unchanged, and nothing be generated. See Matth. ad Cic. pro Sext. 68, 143. 

(6)   Tametsi id accidere non potest. 'Quamvis id fieri non possit, ut qui optime dicit, in exordio non perturbetur.' Proust. 

(7)   He seems to be Quintus Fabius Maximus Eburnus, who was consul 116 B.C., and who, it is probable, presided as praetor on the occasion of which Crassus speaks. Ellendt. 

(8)   A town of Caria. The Apollonius mentioned above, c. 17, was Apollonius Molon, a native of Rhodes. Proust. 

(9)   The young Roman nobles were accustomed to pursue one of three studies, jurisprudence, eloquence, or war. Proust. 

(10)   Cotta speaks ironically. 

(11)   Invention, disposition, embellishment, memory, and delivery. See ii. 19. Ellendt. 

(12)   Atque id egisse. Most critics have supposed these words in some way faulty. Gesner conjectured, atque digessisse; Lambinus, atque in artem redegisse; Ernesti, ad artemque redegisse. Ellendt supposes that id egisse may mean ei rei operam dedisse. 

(13)   Sed iis, qui ingrediuntur. Orellius and Ellendt retain this reading, though Ernesti had long before observed that there is no verb on which iis can be considered as dependent, and that we must read ii or hi as a nominative to the following possunt. 

(14)   Quam maxime ad veritatem accommodate, 'with as much adaptation as possible to truth.'

(15)   See c. x. 

(16)   Adolescens. When he imitated the practice of Carbo, he was, he says, adolescentulus. 

(17)   A practice recommended by Quintilian, x. 5. 

(18)   This is sufficiently explained in book ii. c. 87. See also Quint xi. 2. 

(19)   Veste. Under this word is included tapestry, coverings of couches, and other things of that sort. 

(20)   An illustration, says Proust, borrowed from the practice of trader who allow goods, on which they set a high value, to be seen only through lattice-work. 

(21)   Not Quintus Scaevola the augur, the father-in-law of Crassus, in whose presence Crassus is speaking, but another Quintus Scaevola, who was an eminent lawyer, and held the office of pontifex; but at the time to which Crassus alludes he was tribune of the people, 105 B.C.   Proust. 

(22)   The case was as follows: As Scaevola the pontiff was going into the Campus Martius, to the election of consuls, he passed, in his way, through the forum, where he found two orators in much litigation, and blundering grievously through ignorance of the civil law. One of them was Hypsaeus, the other Gnaeus Octavius, who had been consul 128 B.C. Hypsaeus was accusing some guardian of maladministration of the fortunes of his ward. This sort of case was called iudicium tutelae. Octavius defended the guardian. The judge of this controversy was Marcus Crassus, then city praetor, 105 B.C. He that was condemned on such a trial, was decreed to pay damages to his ward to the amount of what his affairs had suffered through his means, and, in addition, by the law of the Twelve Tables, was to pay something by way of fine. But if the ward, or his advocate, sought to recover more from the defendant than was due, he lost his cause. Hypsaeus proceeded in this manner, and therefore ought to have been nonsuited. Octavius, an unskilful defender of his client, should have rejoiced at this, for if he had made the objection and proved it, he would have obtained his cause; but he refused to permit Hypsaeus to proceed for more than was due, though such proceeding would, by the law, have been fatal to his suit. Proust. 

(23)   Quintus Mucius Scaevola, mentioned in the last note but one. 

(24)   The cause was this. One man owed another a sum of money, to be paid, for instance, in the beginning of January; the plaintiff would not wait till that time, but brought his action in December; the ignorant lawyer who was for the defendant, instead of contesting with the plaintiff this point, that he demanded his money before it was due, (which if he had proved, the plaintiff would have lost his cause,) only prayed the benefit of the exception, which forbade an action to be brought for money before the day of payment, and so only put off the cause for that time. This he did not perceive to be a clause inserted for the advantage of the plaintiff, that he might know when to bring his suit. Thus the plaintiff, when the money became due, was at liberty to bring a new action, as if this matter had never come to trial, which action he could never have brought, if the first had been determined on the other point, namely, its having been brought before the money was due; for then the defendant might have pleaded a former judgment, and precluded the plaintiff from his second action. See Justin. Instit. iv. 13. 5. de re iudicata. 'Of which sum there is a time for payment,' were words of form in the exception from whence it was nominated; as, 'That the matter had before come into judgment,' were in the other exception re iudicata. Proust. B. See Gaius, Instit. iv. 131, and Heffter, Obs. on Gaius, iv. 23, p. 109 seq. Ellendt. 

(25)   Infitiator. The defendant or debtor. 

(26)   Petitor. The plaintiff or creditor. 

(27)   Publius Licinius Crassus Mucianus, son of Publius Mucius Scaovola, who had been adopted into the Licinian family. He was consul with Lucius Valerius Flaccus, 131 B.C. . . . But the name of Dives had previously been in the family of the Crassi, for Publius Crassus. who was consul with Publius Africanus, 205 B.C., was so called. Ellendt. 

(28)   By birth. He had his name of Crassus from adoption, as stated in the preceding note. 

(29)   Publius Scaevola, his brother. In the phrase, neque illum in iure civili satis illi arti facere posse, the words illi arti are regarded by Ernesti and Orellius as spurious, but Ellendt thinks them genuine, explaining in iure civili by quod ad ius civile attinet. I have followed Orellius and Ernesti in my translation. 

(30)   Publius Crassus. 

(31)   Illa tempora atque illa aetas. By tempora is meant the state of the times as to political affairs; by aetas, the period of advancement in learning and civilization which Rome had reached. 

(32)   Antonius. 

(33)   A body of inferior iudices, chosen three out of each tribe, so that the full number was a hundred and five. They took cognisance of such minor causes as the praetor entrusted to their decision. 

(34)   Gentilitatum. Kindred or family. Persons of the same family or descent had certain peculiar rights, e.g. in entering upon an inheritance, in undertaking guardianship. In such rights slaves, freedmen, and capite deminuti had no participation. See Cic. Top. 6, 29. Proust. 

(35)   The agnati, as a brother by the same father, a brother's son or grandson, an uncle's son or grandson, had their peculiar rights. See Gaius, i. 156. 

(36)   About these, various controversies might arise; as, when the force of a river has detached a portion from your land, and added it to that of your neighbour, to whom does that portion belong? Or if trees have been carried away from your land to that of your neighbour, and have taken root there, etc. Proust. 

(37)   When a person was obliged to let the water, which dropped from his house, run into the garden or area of his neighbour; or to receive the water that fell from his neighbour's house into his area. Adam's Roman Antiquities, p. 49. 

(38)   For he who had a son under his power should have taken care to institute him his heir, or to disinherit him by name; since if a father pretermitted or passed over his son in silence, the testament was of no effect. Just. Inst. ii. 13. And if the parents disinherited their children without cause, the civil law was, that they might complain that such testaments were invalid, under colour that their parents were not of sound mind when they made them. Just. Inst. ii. 18. B. 

(39)   The son of a freedman of the Claudian family had died without making a will, and his property fell by law to the Claudii: but there were two families of them, the Claudii Pulchri, who were patricians, and the Claudii Marcelli, who were plebeians; and these two families went to law about the possession of the dead man's property. The patrician Claudii (whose family was the eldest of the name) claimed the inheritance by right of gens, on the ground that the freedman was of the gens Claudia, of which their family was the chief; . . . while the Claudii Marcelli, or plebeian Claudii, claimed it by right of stirps, on the ground that the freedman was more nearly related to them than to the Pulchri. Pearce. The term gens was used in reference to patricians; that of stirps, to plebeians. Proust.  

(40)   Ius applicationis. This was a right which a Roman quasi-patronus had to the estate of a foreign client dying intestate. He was called quasi-patronus, because none but Roman citizens could have patrons. The difficulty in this cause proceeded from the obscurity of the law on which this kind of right was founded. 

(41)   The services of city estates are those which appertain to buildings. It is required by city services that neighbours should bear the burdens of neighbours; and, by such services, one neighbour may be permitted to place a beam upon the wall of another; may be compelled to receive the droppings and currents from the gutter-pipes of another man's house upon his own house, area, or sewer; or may be exempted from receiving them; or may be restrained from raising his house in height, lest he should darken the habitation of his neighbour. Harris's Justinian, ii. 3.  

(42)   There is a more particular statement of this cause between Gratidianus and rata in Cicero's De Off., iii. 16. The Roman law, in that particular founded on the law of nature, ordained, to avoid deceit in bargain and sale, that the seller should give notice of all the bad qualities in the thing sold which he knew of, or pay damages to the purchaser for his silence; to which law Horace alludes, Sat. iii. 2:    Mentem nisi litigiosus    Exciperet dominus cum venderet.     But if he told the faults, or they were such as must be seen by a person using common care, the buyer suffered for his negligence, as Horace again indicates, Epist ii. 2:    Ille feret pretium poenae securus opinor:    Prudens emisti vitiosum. Dicta tibi est Lex.     See also Grotius, ii. 12, and Puffendorf, v. 3. s. 4, 5. B. 

(43)   The mistake of Bucculeius seems to have consisted in this; he meant to restrain Fufius from raising the house in height, which might darken, or making any new windows which might overlook, some neighbouring habitation which belonged to him; but by the use of words adapted by law for another purpose, he restrained himself from building within the prospect of those windows already made in the house which Fufius purchased. B. 

(44)   In the consulship. 

(45)   This celebrated case is so clearly stated by Cicero as to require no explanation. It was gained by Crassus, the evident intention of the testator prevailing over the letter of the will. It is quoted as a precedent by Cicero, pro Caecina, c. 18. 

(46)   See Florus, ii. 18; Vell. Pat. ii. 1. 

(47)   See Cic. Topic. c. 8; Gaius, i. 129; Aul. Gell. vii. 18. 


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