Conjecture relates to fact and intention, and to three divisions of time, § 1-6. The question may regard the fact and the agent at the same time, or the fact only, or the agent only, 7-10. Concerning both together, 11-15. Concerning the fact only, 16, 17. Concerning the agent; anticatēgoria, 18-21. Comparison managed in several ways, 22-24. Conjecture sometimes twofold, 25-27. Proof from persons, 28-34. From motives and causes, 35-41. Intentions, opportunities, place, time, 42, 43. Consideration whether the accused had the power to do the act with which he is charged, 44, 45. Whether he did it, 46-49. Other considerations in different causes, 50-53. Error carried from the schools into the forum, 54-57. 1. All conjecture has reference either to fact or intent. To each belong three parts of time: the past, the present, and the future. Concerning fact, there are both general and particular questions, that is, such as are not limited to the consideration of certain circumstances and such as are so limited. 2. About intent there can be no question, unless where there is a person concerned and a fact is admitted. When the question, then, is about a fact, it is to be considered either what has been done, what is being done, or what is going to be done. Thus, in general questions, we inquire whether the world was formed by a fortuitous concourse of atoms, whether it is ruled by a providence, and whether it will one day fall to pieces. In particular questions, we inquire whether Roscius has committed parricide, whether Manlius is aspiring to sovereignty, and whether Caecilius will justly prosecute Verres. 3. In judicial pleadings, we are most concerned with past time, for no man accuses another but for something that has been done, because what is actually taking place or is likely to take place is inferred from the past. We may also inquire whence a thing has proceeded, as, concerning a pestilence, whether it arose from the anger of the gods, from the bad state of the atmosphere, or from the corruption of the waters, or from noxious exhalations from the ground. Concerning a fact, too, what was the cause of it, such as why did fifty princes sail to Troy, whether from being bound by an oath, or from being led by example, or from a desire to oblige the sons of Atreus? These two kinds of questions are not very different. 4. As to matters that concern the present time, if they are not to be discovered by proofs, from circumstances which must have preceded, but by the senses, they have nothing to do with conjecture, such as if it should be asked at Lacedaemon whether walls are in the course of erection at Athens. But the position of conjecture, which may seem foreign to this head, also has a place under it, as in inquiries about the identity of an individual. For example, in the action against the heirs of Urbinia, it was a question whether he who laid claim to the property as a son was Figulus or Sosipater. 5. The person of the man was under the eye of the court, so that it could not be inquired whether he was (as we inquire whether anything is beyond the ocean), nor what he was, nor of what nature, but who he was. This kind of question, however, depends for decision on the past, as whether this Clusinius Figulus was born of Urbinia. Such causes have been tried in my time, and some of them have come under my advocacy. 6. Conjecture with regard to intent has reference doubtless to all the parts of time, as with what intent was Ligarius in Africa? With what intent does Pyrrhus solicit peace? How will Caesar feel if Ptolemy kills Pompey? Questions of conjecture and quality are made with regard to magnitude, species, and number, such as whether the sun is greater than the earth; whether the moon is spherical, plane, or conical; and whether there is only one world or several. 7. Nor are such questions confined to physical subjects, for we inquire whether the Trojan or Peloponnesian war was the greater, what sort of shield was that of Achilles, and whether there was but one Hercules. But in judicial causes, which consist of accusation and defense, there is a first kind of conjectural question in which the inquiry is about an act and the author of it. This sometimes embraces the two questions in one, and both are alike denied. Sometimes, it considers them separately, as when it is first inquired whether or not the act was committed and, if so, by whom. 8. The consideration of the act itself, also, sometimes embraces a single question, as whether a man died, or sometimes two questions, as whether he died of poison or disease of the stomach. There is a second kind of conjectural question which regards the act only, when, if the act be admitted, there can be no doubt as to the author of it. There is also a third, which has reference only to the author when the act is acknowledged, but it is disputed by whom it was committed. 9. But that which I have specified in the third place is not always confined to one question, for the accused person may either simply deny that he himself committed the act or may assert that another committed it. Nor is there only one mode of throwing the charge upon another person, for sometimes there arises mutual accusation, which the Greeks call ἀντιχατηγονρία (anticatēgoria), and some of our writers accusatio concertativa. Sometimes the guilt is thrown upon some person not implicated in the cause. This person is sometimes known and sometimes unknown, and when it is thrown upon one that is known, it may be imputed to one out of the question, or to the deceased as having killed himself intentionally. 10. In these cases, there is a comparison of persons, motives, and other things similar to that which there is in ἀντιχατηγονρία. For example, in pleading for Varenus, Cicero throws a suspicion of guilt on the slaves of Ancharius, and in speaking for Scaurus, turns the imputation of Bostar's death on his mother. 11. There is also a contrary kind of comparison in which each party claims the credit of some act, and another in which not persons, but only facts are opposed—that is, when it is inquired not which of two persons did a thing, but which of two things was done. When the question is settled about the act and the agent, we may then inquire about the intention. I now proceed to speak of particulars. When a charge is denied, both as to the act and the agent, it is denied in this way: "I have not committed adultery" or "I have not aspired to regal power." On trials for murder and poisoning, such a distinction as the following is very common: "The deed has not been committed, or if it has been, I am not guilty of it." 12. But when the defense says, "Prove that the man was murdered," the weight of the argument falls wholly on the accuser, for the defense can say nothing else against him except perhaps some suspicions which ought to be thrown out as vaguely as possible, because if we assert a point fairly, we must make it good or be in danger of being found guilty. For when the question lies between what is advanced by our opponent and what is advanced by ourselves, the statement of either party may be presumed to be true. So also, when the point on which we take our stand is overthrown, we may be hard pressed on all remaining points. 13. But when a cause turns on the ambiguous symptoms of disease of the stomach or poisoning, there is no third point, and therefore each side must hold to what it has alleged. Sometimes when arguments are drawn from circumstances, independently of any consideration of the person, the question is about the nature of the thing itself, whether it was poisoning or disease of the stomach. 14. For it is important to inquire whether the banquet was preceded by joy or gloom, toil or ease, wakefulness or sleep. The age of the deceased, too, may have some influence on the decision, and it is of consequence to know whether he died suddenly or was wasted with long illness. If only sudden death calls for consideration, there will be a still wider field of discussion for both parties. 15. Sometimes proof respecting an act is sought from the character of the accused party, as "it is credible that poisoning was the cause of death because it is credible that poisoning was committed by the accused," or "it is incredible that the accused was guilty of poisoning; therefore it is incredible that poisoning was the cause of death." But when there is a question at the same time regarding the person accused and the deed of which he is accused, the natural order of things is for the accuser to prove first of all that the deed was committed and then that it was committed by the accused. If, however, he find more proofs bearing on the person, he may change that order. 16. The accused, on the other hand, will make it his first object to deny that the deed was committed, because if he succeeds in establishing that point, he has no need to say anything further. But if he is defeated on it, there may remain some other means for him to establish his innocence. Also, in cases where there is a dispute about fact only and where if the fact is proved, there can be no doubt as to the agent, arguments are in like manner drawn from persons and from circumstances, though with regard to the question of fact simply. 17. This is the case in the following subject of controversy (for I must adduce such examples as are most familiar to students): "A son, who had been disinherited by his father, devoted himself to the study of medicine. His father fell sick, and every other physician despaired of saving his life. The son was consulted and said he could cure him if the father would take a draught he would give him. The father, after drinking part of the draught, said he had been poisoned, and the son drank what was left. The father died, and the son was accused of parricide." 18. Here it is known who gave the draught, and if it was poison, there can be no doubt as to the author of the poisoning. But whether it was poison must be decided by arguments arising from the character of the accused. There remains a third kind of conjectural cause, in which it is admitted that a deed has been done, but there is a question about the author of it. Of such cases, it is superfluous to give an example, since abundance of trials on such points occur, as when it is acknowledged that a man has been killed, or that sacrilege has been committed, but the person who is accused of the deed denies that he is guilty of it. Hence arises ἀντιχατηγονρία or recrimination, it being admitted that a deed has been done, while each party charges the other with the commission of it. 19. As to this kind of cause, Celsus tells us that it cannot occur in the forum, a fact of which I suppose no one is ignorant. The judges are assembled to decide the case of one accused person, and if the accused and the accuser bring charges against each other, the judges must choose which of the two cases they will try. 20. Apollodorus also says that ἀντιχατηγονρία includes two causes, and according to the practice of the forum, there are doubtless two distinct cases. Yet this kind of conjectural cause may come under the cognizance of the senate or the emperor. But even on ordinary trials, it requires no difference in the pleadings, for the decision that is given affects both parties, though sentence is pronounced only on one. 21. In this kind of cause, the defense must always have the precedence because, first, protecting ourselves is more important than injuring our adversary; secondly, we shall have greater weight in accusing if our own innocence is first established; and, lastly, it is only by this order of things that the cause can become double, for he who says, "I did not kill," leaves it free for himself to add "you killed." But he who first says, "you killed," renders it superfluous to say afterwards, "I did not kill." 22. Such causes, moreover, depend on comparison, which is managed in more than one way, for we either set the whole of our cause against the whole cause of our adversary, or particular arguments on our side against particular arguments on his. Which of these two modes ought to be adopted in any case can only be decided by considering which is the more likely to be of service to it. In regard to the first head of accusation, Cicero, in his pleading for Varenus, compares argument with argument, for he has the advantage since a stranger is but rashly compared with a mother. It is best, therefore, that particular arguments should, if possible, be overthrown by particular arguments, but if we find a difficulty as to certain parts, we must fight with the whole force of our cause in a body. 23. But whether the parties accuse one another, whether the accused turns the guilt on the accuser without any formal accusation (as Roscius throws it on his accusers, though he does not bring them before the judges), or whether a deed be attributed to persons whom we assert to have perished by their own hand, the arguments of the two parties are matched in the same way as in causes which involve recrimination. 24. That species, however, of which I spoke last is often handled not only in the schools, but also in the forum, for in the case of Naevius of Arpinum, the question was merely whether his wife had been thrown down by him or had thrown herself down of her own accord. My pleading in that cause is the only one that I have hitherto published, and I acknowledge that I was induced to publish it by a youthful desire for fame. As for the other pleadings which are circulated under my name, they are so corrupted by the carelessness of the shorthand writers who took them down for profit that they contain very little genuine matter of mine. 25. There is also another kind of conjectural cause that involves two questions, differs from ἀντιχατηγονρία, and relates to rewards, as in the following case: "A tyrant, suspecting that poison had been given him by his physician, put him to the torture. As he persisted in denying that he had given poison, the tyrant sent for another physician, who said that poison had been given him, but that he would administer an antidote. He then gave the tyrant a draught, and immediately after drinking it, the tyrant died." The two physicians dispute about the reward for tyrannicide, and as in a case of ἀντιχατηγονρία, where each party endeavors to throw the blame on the opposite, so in this case, where each party makes a claim, persons, motives, means, opportunities, instruments, and evidence are brought into comparison. 26. Though there is no recrimination in it, another kind of case also is treated in the same manner as one of recrimination—that in which it is inquired, without accusing anyone, which of two things has taken place. For each side makes its own statement and supports it. For example, in the suit concerning the property of Urbinia, the claimant says that Clusinius Figulus, the son of Urbinia, fled after finding the army in which he was serving defeated. He was thrown into various adventures, and even kept prisoner by a king, before making his way at length into Italy to his native place, Margini, where he was recognized. Pollio, on the other hand, asserts that he was a slave to two masters at Pisaurum, that he practiced medicine, and that being set free, he joined himself to another person's company of slaves and was purchased after requesting permission to serve with them. 27. Does not the whole action consist of a comparison of two allegations and two distinct questions for conjecture? But the mode of proceeding, for those who either claim property or resist claims to it, is the same as that for persons prosecuting and defending in civil suits. Grounds for conjecture are drawn in the first place from the past, in which are comprehended persons, motives, intentions. The order in which we have to consider evidence as to any act is whether the accused had the will to do it, had the power to do it, and whether he actually did it. 28. Therefore we must consider first the character of the accused. It is the business of the accuser to make whatever he imputes to the accused appear not only disgraceful, but as consistent as possible with the crime for which he is brought to trial. For instance, if he reproaches a man accused of murder with being incontinent or adulterous, such dishonorable imputations will indeed hurt him, but will be of less avail to support the charge than if he prove him to be daring, headstrong, cruel, or rash. 29. The advocate for the accused, on the other hand, must make it his object, if possible, to refute, justify, or extenuate such allegations, or if he find it impracticable to do so, the next thing is to separate them from the question before the court. Many imputations of that nature are not only irreconcilable with the charge, but tend to overthrow it, for example, if a man accused of theft is represented as prodigal or careless of his property, for disregard of money and covetousness do not seem likely to meet in the same character. 30. If such means of defense fail, he must have recourse to the remark that the question has no reference to the imputation; that he who has committed one offense has surely not been guilty of all kinds of offenses; or that the accusers had the audacity to make such false charges only because they hoped that the accused, injured and wounded by them, would be overwhelmed by the weight of slander. 31. Other allegations may be made by the accusers, against which common-place arguments rise in opposition. In such a case, the advocate of the accused may commence with arguments drawn from his character, sometimes generally, as, "It is incredible that a father should have been killed by his son, or that a general should have betrayed his country to the enemy." Such arguments may be easily answered, by saying that every sort of crime may be committed by the bad and is, indeed, daily detected among them, or that it is monstrous that charges should be denied on the ground of their atrocity. 32. Sometimes arguments from character are particular, a mode which may have various results. For example, dignity sometimes supports an accused person, and at other times, it is turned into a proof of his guilt, on the representation that the hope of impunity was conceived from it. In a like manner, poverty, humility, and wealth are set in different lights according to the ability of each party. 33. Good morals, however, and integrity in the past time of life, must always be of great influence in favor of an accused party. If no attack is made on his character, his advocate will dwell strongly on that circumstance, while the accuser will try to confine the attention of the court to the question before it, on which alone judgment is to be pronounced, and will observe that every offender must have committed a first offense and that the commencement of guilt is not to be celebrated by a feast of glorification. 34. Such will be the observations which the accuser will make in reply, but in the early part of his pleading, he will impress the mind of the judge in such a way as to be thought unwilling to throw out imputations rather than unable. Therefore, it is better for the accuser to abstain from casting any reflection on the past life of the accused than to attack him with light or frivolous charges, or those that are manifestly false, because the credit of his other statements would thus be diminished. He who throws out no imputations may be thought to have abstained from them as being superfluous, while he who throws out groundless imputations shows that his only chance of success lay in attacking the past life of the accused, a point on which he chose rather to be defeated than to be silent. 35. Other considerations, derived from the character of individuals, I have fully noticed where I have treated of the sources of arguments. The next sort of proof is derived from motives, chiefly anger, hatred, fear, avarice, and hope, for all others fall under some variety of these. If any of them are attributable to the accused, it is the accuser's duty to make it appear that motives may stimulate a person to any act whatever, and to exaggerate the force of those motives on which he lays hold for the support of his arguments. 36. If none are attributable to the accused, the accuser may shape his speech to insinuate there may have been latent motives or may observe there is no purpose in considering the accused's motive, if it is apparent he commited the crime, or he may say the crime is even more detestable because there is no motive. The advocate of the accused, on the other hand, will insist, as often as possible, that it is incredible that any crime can have been committed without a motive. Cicero dwells on this consideration with great force in many of his speeches, especially in that for Varenus, who had everything else against him and was in consequence condemned. 37. But if a motive is alleged by the accuser for the crime, the advocate of the accused may say that the motive is false or frivolous or unknown to the accused. Motives may sometimes be imputed to the accused which unknown to him. For instance, it could not be known, he may say, whether the deceased intended to make his accused killer his heir or designed to prosecute him. If other grounds of defense fail, we may say that motives are not necessarily to be regarded, for what person can be found that does not fear, hate, and hope? Yet, most entertain those feelings without violating the moral duties. 38. Nor must the advocate omit to observe that all kinds of motives do not prevail with all kinds of persons, for though poverty may incite some persons to steal, it could have no influence with a Curius or a Fabricius. 39. It is often asked whether we should speak of the motive or the person first, and different courses have been adopted by different orators, with Cicero generally giving precendence to motives. But unless the nature of a cause gives a preponderance to either, to me it seems more natural to commence with the person, since it is a more general proposition, and a more justly division, for the accuser to say, for example, that either the charge is credible of no one or is credible of the accused. 40. Yet regard to convenience may change that order, as it changes many other things. Nor are motives for the willful commission of an act only to be sought, but motives that may have misled to the commission of it, as drunkenness or ignorance, for as these lessen the culpability when the quality of an act is considered, so they tend greatly to establish a question regarding fact. 41. However, I know not whether a person can ever be the subject of a charge (I mean in a real cause) without one or other party speaking of him. But it is often superfluous to inquire about motives, as in cases of adultery and theft, because the crimes themselves carry their motives on the face of them. 42. In the next place, it seems necessary to look to intentions, which opens a wide field for consideration: whether it be probable that the accused hoped that such a crime could be executed by him; that when he had committed it, it would not be known; or that, if it were known, it would be forgiven or visited with light or tardy punishment, or one from which he would feel a less portion of inconvenience than he would experience of gratification from the commission of the deed; or whether he thought it worth so much to undergo the penalty. 43. Afterwards, it may be considered whether he might have done the deed at another time or in another way, with greater facility or security. Such a method was adopted by Cicero in defense of Milo, when he specifies the number of occasions on which Clodius might have been killed by Milo with impunity. Besides, we may ask why the accused should have preferred to make an attack in that place, or at that time, or in that manner (arguments which are also most ably enforced in the same pleading). 44. Again, if he was led by no design, was he hurried away by impulse and without reason (for it is a common saying that crimes have no reasons) or was he led away by a habit of vice? Having discussed the first point, whether he had the will, we next consider whether he had the power. Under this head are contemplated place and time, as with respect to a theft, whether it was committed in a solitary or frequented place; in the daytime, when there might have been many witnesses; or in the night, when the difficulty of proof is greater. 45. Indeed, we should be taken into consideration all obstacles and opportunities, which are numerous and well known, requiring no examples. This second head is of such a nature that if the crime could not have been committed, the trial comes to nothing. If it could, the question follows, "Did the accused commit it?" But these considerations respect also conjecture as to intention, for it is inferred from these whether he hoped to effect his purpose. In consequence, means ought also to be regarded, as in the suites of Clodius and Milo. 46. The question of whether the accused committed the crime commences with the second division of time: the present and that which is closely connected with it, to which belong noise, cries, groans, or anything similar, and subsequent time, to which belong concealment, terror, and such circumstances. To these are added all kinds of signs or indications, of which I have already treated, as well as words and acts, both such as preceded and such as followed. 47. These words and acts are either our own or those of others. But some words hurt us less than others. Our own words hurt us more and profit us less than those of others, while those of others profit us more and hurt us less than our own. As for acts, sometimes our own profit us more, and sometimes those of others, as when our adversary has done anything that appears in our favor. But our own words always hurt us more than those of others. 48. There is also this difference to be observed in words—they are either plain or equivocal, but whether they are our own or those of others, those which are equivocal must necessarily be less effective either to benefit or to injure. Our own, however, are often injurious to us, as in the well known case, "A son being asked where his father was replied, 'wherever he is, he is drinking,' and he was found dead in a well." 49. The words of another which are equivocal can never hurt us unless when their author is uncertain or dead, as in the cases, "A voice was heard in the night, 'Beware of tyrannical power,'" and, "A dying man being asked from whom he received the poison of which he was dying, replied, 'It is not expedient for you to know,'" for if there be any one that can be questioned as to the meaning, he will put an end to the ambiguity. 50. But while our own words and acts can be justified only by reference to the intention, those of others may be refuted in various ways. In what I have said, I have spoken, I think, chiefly with reference to one kind of conjectural cause; but something of this is applicable to all kinds of causes. In questions respecting theft, deposits, and loans of money, arguments are derived both from possibilities, as whether there was any money that could have been deposited, and from persons, as whether it was credible that such a person deposited money with such another person, or whether it was credible that he lent money to such a person, or whether it is probable that the prosecutor is a slanderer, or that the defendant is an impostor or a thief. 51. But even in the case of a person accused of theft, as in cases of murder, there is an inquiry about the deed and the author of it. In regard to cases of loan and deposit, there are two but always separate questions: whether the money was given, and whether it was returned. Cases of adultery have this peculiarity, that two parties are generally imperiled in them and that something must be said of the past life of both. However, in some cases a question may arise as to whether both should be defended together. The decision of this point must depend on the nature of the case, for if the defense of one party will support the other, I should take them together. But if one is likely to be injurious to the other, I would separate them. 52. But lest anyone may think me inconsiderate in saying that adultery is generally, but not always a charge against two persons, I would add that a woman alone may be accused of adultery with an unknown person: "presents," it may be said, "have been found in her house, and money, of which the giver has not been discovered; and love letters, of which it is doubtful to whom they were written." 53. In regard to forged writing, the case is similar, for either several persons may be charged with the crime or one only. The writer of an instrument, however, will always find it necessary to guarantee the signature of the person who has signed it, but the person who has signed it cannot always guarantee the handwriting of him who is said to have written it, for he may be deceived. But he who is said to have engaged their services, and for whom the instrument is alleged to have been written, will have to support both the writer and all who signed the writing. The sources of proof are similar in cases of treason and of aspiring to sovereignty. 54. The school custom of considering everything in our favor that is not in the argument laid down for us may be prejudicial to young men proceeding to the forum. You accuse me of adultery: "Who is witness? Who testifies to the fact?" Of treason: "What reward have I received? Who was privy to the transaction?" Of administering poison: "Where did I buy it? From whom? When? For how much? Through whose hands did I convey it?" Or we plead in defense of one accused of aspiring to tyranny: "Where were his arms? What guards had he assembled?" 55. I do not deny that such questions may be asked or that we may urge them on behalf of the party whom we defen,; for I myself would call for such proofs in the forum if I should find my adversary not in a condition to give them. But in the forum, we miss the facility for asking such questions that there is in the schools, where scarcely a single cause is pleaded in which some argument of this kind, or perhaps several, are not advanced. 56. Similar is the ease with which some declaimers, in their perorations, assign parents, children, or nurses to whomsoever they please. Yet we may more reasonably allow a speaker to call for proofs not offered than to discuss them as if they were. How we must examine as to intention was sufficiently signified when we distinguished the three points of inquiry: whether a person had the will, whether he had the power, and whether he did the deed. In the same manner as it is inquired whether a person had the will, so it is inquired with what intent he acted, that is to say whether he intended to do an evil act. 57. Also, the order in which circumstances are stated either adds to the credit of the statement or detracts from it, and so much the more if the circumstances are more or less consistent or inconsistent with each other. But these qualities are not discovered except by reference to the connection of a cause throughout. Yet we must always observe what particular agrees with or suits any other particular.
|
