1 the claimant says that Clusinius Figulus,
the son of Urbinia, on the defeat of the army
in which he was serving, fled and after various
misfortunes, being even even kept in captivity by
the king, at length returned to Italy and his own
home in the Marrucine district, where he was recognised. To this Pollio replies that he had been a
slave to two masters at Pisaurum, that he had
practised medicine, and finally, after receiving his
freedom, inserted himself into a gang of slaves who
were for sale2 and was at his own request purchased by himself.
[27]
Does not the whole suit consist
of comparison between the two cases and of two
different and opposite sets of conjecture? But the
method to be followed is identical whether the case
be one of accusation and defence or of claim and
denial of the claim.
Conjecture is, in the first place, based on what is
past, under which I include persons, causes and
intent. For in dealing with a case we first ask
what the accused intended to do, next what he was
in a position to do, and lastly what he actually did.
Consequently the first point on which we must fix
our attention is the character of the accused.
[28]
It is
the business of the accuser to make any charge that
[p. 65]
he may bring against the accused not merely discreditable, but as consistent as possible with the
crime for which he is arraigned. For example, if
he calls a man accused of murder a debauchee or
an adulterer, the discredit attaching to such charges
will no doubt tell against the accused, but will, on
the other hand, do less to prove the case than if
he shows him to be bold, insolent, cruel or reckless.
[29]
On the other hand, counsel for the defence must,
as far as possible, aim at denying, excusing or
extenuating such charges, or, if that be impossible,
show that they are not relevant to the case. For
there are many charges which not only have no
mutual resemblance, but may even at times contradict each other, as for instance if a man accused
of theft is called prodigal or careless. For it is
not likely that one and the same man should at
once despise money and covet it.
[30]
If such means
of defence are not available, we must take refuge
with the plea that the charges made are not
relevant to the case, that because a man has committed certain sins, it does not follow that he has
committed all, and that the accusers ventured to
make such false charges merely because they hoped
by injuring and insulting the accused to be able
to overwhelm him with the unpopularity thus
created.
[31]
There are also other topics which arise
from and against the statement of the case by the
prosecution. The defence may begin by drawing
arguments from the person involved, and will at
times urge on general grounds that it is incredible
that a father has been killed by his son or that a
commander has betrayed his country to the enemy.
The answer to such arguments is easy, for we may
[p. 67]
urge that bad men are capable of every crime, as
is shown by every-day occurrences, or that the
atrocious nature of a crime is but a poor argument
against its having been committed.
[32]
At times we
may base our arguments on the special circumstances
of the person involved. This may be done in various
ways: rank, for example, may be pleaded in defence
of the accused, or at times, on the other hand, may
be employed to prove his guilt on the ground that
he trusted to his rank to secure impunity. Similarly
poverty, humble rank, wealth may be used as arguments for or against the accused according to the
talent of the advocate.
[33]
Upright character, however,
and the blamelessness of his past life are always of
the utmost assistance to the accused. If no charge
is made against his character, counsel for the defence
will lay great stress on this fact, while the accuser
will attempt to restrict the judge to the sole consideration of the actual issue which the court has
to decide, and will say that there must always be
a first step in crime and that a first offence is not
to be regarded as the occasion for celebrating a
feast in honour of the defendant's character.
[34]
So
much for the methods of reply which will be employed by the prosecution. But he will also in his
opening speech endeavour to dispose the judges to
believe that it is not so much that he is unable,
as that he is unwilling to bring any charge against
the character of the accused. Consequently it is
better to abstain from casting any slur on the past
life of the accused than to attack him with slight
or frivolous charges which are manifestly false,
since such a proceeding discredits the rest of
our argument. Further, the advocate who brings
[p. 69]
no charges against the accused may be believed to
have omitted all reference to past offences on the
ground that such reference was not necessary, while
the advocate who heaps up baseless charges thereby
admits that his only argument is to be found in the
past life of the accused, and that he has deliberately
preferred to risk defeat on this point rather than
say nothing at all about it.
[35]
As regards the other
arguments derived from character, I have already
discussed them in connexion with “places” of
argument.3
The next type of proof is derived from causes or
motives, such as anger, hatred, fear, greed or hope,
since all motives can be classified as species of one
or other of these. If any of these motives can be
plausibly alleged against the accused, it is the duty
of the accuser to make it appear that such motives
may lead a man to commit any crime, and to exaggerate the particular motives which he selects for
the purpose of his argument.
[36]
If no such motive can
be alleged, he must take refuge in suggesting that
there must have been some hidden motive, or in
asserting that, if he committed the act, all enquiry
into motive is irrelevant or that a motiveless crime
is even more abominable than one which has a
motive. Counsel for the defence, on the other hand,
will, wherever it be possible, emphasise the point
that it is incredible that any act should be committed
without a motive. Cicero develops this point with
great energy in a number of his speeches, but more
especially in his defence of Varenus, who had everything else against him and was as a matter of fact
condemned.
[37]
But if the prosecution do allege some
motive, he will either say that the motive alleged is
[p. 71]
false or inadequate or unknown to the accused. For
it is possible that a man may be quite ignorant of
motives imputed to him. He may not, for example,
have known whether the man whom he is accused
of having killed had appointed him his heir
or intended to prosecute him. All else failing,
we may urge that motives are not necessarily of
importance. For what man is there who is not
liable to the emotions of fear, hatred or hope, and
yet numbers of persons act on these motives without
committing crime?
[38]
Nor should we neglect the point
that all motives do not apply to all persons. For
example, although poverty may in certain cases be a
motive for theft, it will not have the same force with
men such as Curius or Fabricius.
[39]
The question has been raised as to whether we
should deal first with persons or motives, and different
orators have given different answers: Cicero as a rule
prefers to treat motives first. For my own part, if
the circumstances of the case do not point strongly
in either direction, I consider that the most natural
course is to begin by dealing with persons. For the
enquiry whether any crime can credibly be imputed
to such a man as the accused is of a more general
character than the question whether some one
particular crime can be imputed, and in addition
involves a greater correctness in division.
[40]
Still, in
many cases expediency may make it desirable to
reverse the order. Further, we have to seek not
merely motives affecting the will, but also causes
leading to error, such as drunkenness or ignorance.
For just as such considerations lessen the guilt of a
crime when regarded from the point of view of its
quality, so they tell heavily against the criminal as
[p. 73]
far as the question of fact is concerned.
[41]
I should
imagine that there could never be a case, or at any rate
an actual case in the courts, in which neither side said
anything about the character of the persons involved;
but this is not true of causes and motives, for it is
often wholly unnecessary to trouble ourselves about
them, as, for example, in cases of theft or adultery,
crimes which carry their motives on the face of them.
[42]
Next we must consider the intention, a term which
involves a number of questions, such as whether it is
probable that the accused hoped that he would be
able to carry such a crime into effect, or that it
would escape detection when committed, or that,
even if detected, it would be pardoned or punished
but lightly or after considerable lapse of time, or
that the inconvenience involved by the penalty
would be outweighed by the pleasure resulting from
the crime: or again, whether it was worth while
incurring the penalty;
[43]
and further, whether he could
have done the deed at some other time and in some
other way, or with greater ease or security, as Cicero
says in the pro Milone,4 where he mentions the
numerous occasions when his client could have killed
Clodius with impunity. There is also the question
why the accused should have chosen that particular
place or time or means for the commission of the
crime, a topic to which Cicero gives a thorough
treatment in the same passage;
[44]
or whether, without
having the least reason for the deed, he was carried
away by the impulse of the moment and acted
without deliberate purpose (for it is a common
saying that crimes are irrational), or finally, whether
he was led astray by the fact that crime had become
a habit with him.
[p. 75]
Having dealt with the question whether he
intended to commit the crime, we proceed to the
question whether he was in a position to commit it.
Under this head we discuss the place and occasion of
the offence. For instance, in a case of theft we ask
whether it was committed in a secluded or frequented
spot, in the daytime, when witnesses are more
numerous, or by night, when success is more difficult.
[45]
Consequently we shall consider all the circumstances
rendering the act difficult or easy of accomplishment;
these require no illustration, being numerous and
familiar. This second topic is of such importance
that, if it is impossible to give it satisfactory treatment, the case falls to the ground; if, however, we
succeed in dealing with it adequately, we must
proceed to consider whether the accused actually
committed the act. But this topic involves conjecture as to intention, for it is from these facts that
we infer whether he hoped for success or not.
Therefore we must also consider the question of
the means at his disposal, such, for example, as the
retinues of Clodius and Milo.
[46]
The question whether he actually did the deed
belongs, in the first place, to the second division of
time, namely the present, and secondly to time that
is almost, though not actually contemporary: under
this latter head come circumstances such as noise,
cries or groans,5
This work is licensed under a
Creative Commons Attribution-ShareAlike 3.0 United States License.
An XML version of this text is available for download, with the additional restriction that you offer Perseus any modifications you make. Perseus provides credit for all accepted changes, storing new additions in a versioning system.