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Cicero, De Oratore

-   Book 1 , 185-265


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 (96-184)   

{41.} [185] L   "Since I have spoken of the audacity, let me also censure the indolence and inertness of mankind. For if the study of the law were illimitable and arduous, yet the greatness of the advantage ought to impel men to undergo the labour of learning it; but, by the immortal gods, I would not say this in the hearing of Scaevola, unless he himself were accustomed to say it, namely, that there is no science whose attainment seems to him more easy than this. [186] It is, indeed, for certain reasons, thought otherwise by most people, first, because those of old, who were at the head of this science, would not, for the sake of securing and extending their own influence, allow their art to be made public; in the next place, when it was published, the forms of actions at law being first set forth by Gnaeus Flavius, there were none who could compose a general system of those matters arranged under regular heads. For nothing can be reduced into a science, unless he who understands the matters of which he would form a science, has previously gained such knowledge as to enable him to constitute a science out of subjects in which there has never yet been any science. [187] I perceive that, from desire to express this briefly, I have expressed it rather obscurely; but I will make an effort to explain myself, if possible, with more clarity.    

{42.} "All things which are now comprised in sciences, were formerly unconnected, and in a state, as it were, of dispersion; as in music, numbers, sounds, and measures; in geometry, lines, figures, spaces, magnitudes; in astronomy, the revolution of the heavens, the rising, setting, and other motions of the stars; in grammar, the study of the poets, the knowledge of history, the interpretation of words, the peculiar tone of pronunciation; and finally, in this very art of oratory, invention, embellishment, arrangement, memory, delivery, seemed of old not to be fully understood by any, and to be wholly unconnected. [188] A certain extraneous art was therefore applied, adopted from another department of knowledge, ** which the philosophers wholly claim to themselves, an art which might serve to cement things previously separate and uncombined, and unite them in a kind of system.    

"Let then the end proposed in civil law be the preservation of legitimate and practical equity in the affairs and lawsuits of the citizens. [189] The general heads of it are then to be noted, and reduced to a certain number, as few as may be. A general head is that which comprehends two or more particulars, similar to one another by having something in common, but differing in species. Particulars are included under the general heads from which they spring. All names, which are given either to general heads, or particulars, must be limited by definitions, showing what exact meaning they have. A definition is a short and concise specification of whatever properly belongs to the thing which we would define. [190] I should add examples on these points, were I not sensible to whom my discourse is addressed. I will now comprise what I proposed in a short space. For if I should have leisure to do what I have long meditated, or if any other person should undertake the task while I am occupied or accomplish it after my death, (I mean, to digest, first of all, the whole civil law under general heads, which are very few; next, to branch out those general heads, as it were, into members; then to explain the peculiar nature of each by a definition;) you will have a complete system of civil law, large and full indeed, but neither difficult nor obscure. [191] In the meantime, while what is unconnected is being combined, a person may, even by gathering here and there, and collecting from all parts, be furnished with a competent knowledge of the civil law.    

{43.} "Do you not observe that Gaius Aculeo, ** a Roman knight, a man of the most acute genius in the world, but of little learning in other sciences, who now lives, and has always lived with me, understands the civil law so well, that none even of the most skilful, if you except my friend Scaevola here, can be preferred to him? [192] Everything in it, indeed, is set plainly before our eyes, connected with our daily habits, with our intercourse among men, and with the forum, and is not contained in a vast quantity of writing, or many large volumes; for the elements that were at first published by several writers are the same; and the same things, with the change of a few words, have been repeatedly written by the same authors. [193] Added to this, that the civil law may be more readily learned and understood, there is (what most people little imagine) a wonderful pleasure and delight in acquiring a knowledge of it. For, whether any person is attracted by the study of antiquity, ** there is, in every part of the civil law, in the pontifical books, and in the Twelve Tables, abundance of instruction as to ancient matters, since not only the original sense of words is thence understood, but certain kinds of law proceedings illustrate the customs and lives of our ancestors; or if he has a view to the science of government (which Scaevola judges not to belong to the orator, but to science of another sort), he will find it all comprised in the Twelve Tables, every advantage of civil government, and every part of it being there described; or if authoritative and vaunting philosophy delight him, (I will speak very boldly,) he will find there the sources of all the philosophers' disputations, which lie in civil laws and enactments; [194] for from these we perceive that virtue is above all things desirable, since honest, just, and conscientious industry is ennobled with honours, rewards, and distinctions; but the vices and frauds of mankind are punished by fines, ignominy, imprisonment, stripes, banishment, and death; and we are taught, not by disputations endless and full of discord, but by the authority and mandate of the laws, to hold our appetites in subjection, to restrain all our passions, to defend our own property, and to keep our thoughts, eyes, and hands, from that of others.    

{44.} [195] L   "Though all the world exclaim against me, I will say what I think: that single little book of the Twelve Tables, if any one look to the fountains and sources of laws, seems to me, assuredly, to surpass the libraries of all the philosophers, both in weight of authority, and in extent of usefulness. [196] And if our country has our love, as it ought to have in the highest degree, our country, I say, of which the force and natural attraction is so strong, that one of the wisest of mankind preferred his Ithaca, fixed, like a little nest, among the roughest of rocks, to immortality itself, with what affection ought we to be warmed towards such a country as ours, which, pre-eminently above all other countries, is the seat of virtue, empire, and dignity? Its spirit, customs, and discipline ought to be our first objects of study, both because our country is the parent of us all, and because as much wisdom must be thought to have been employed in framing such laws, as in establishing so vast and powerful an empire. [197] You will receive also this pleasure and delight from the study of the law, that you will then most readily comprehend how far our ancestors excelled other nations in wisdom, if you compare our laws with those of their Lycurgus, Draco, and Solon. It is indeed incredible how undigested and almost ridiculous is all civil law, except our own; on which subject I am accustomed to say much in. my daily conversation, when I am praising the wisdom of our countrymen above that of all other men, and especially of the Greeks. For these reasons have I declared, Scaevola, that the knowledge of the civil law is indispensable to those who would become accomplished orators.    

{45.} [198] L   "And who does not know what an accession of honour, popularity, and dignity, such knowledge, even of itself, brings with it to those who are eminent in it? As, therefore, among the Greeks, men of the lowest rank, induced by a trifling reward, offer themselves as assistants to the pleaders on trials (men who are by them called pragmatici ), ** so in our city, on the contrary, every personage of the most eminent rank and character, such as that Aelius Sextus, ** who, for his knowledge in the civil law, was called by our great poet {Ennius},

          'A man of thought and prudence, nobly wise'

and many besides, who, after arriving at distinction by means of their ability, attained such influence, that in answering questions on points of law, ** they found their authority of more weight than even their ability. [199] For ennobling and dignifying old age, indeed, what can be a more honourable resource than the interpretation of the law? For myself, I have, even from my youth, been securing this resource, not merely with a view to benefit in pleadings in the forum, but also for an honour and ornament to the decline of life; so that, when my strength begins to fail me (for which the time is even now almost approaching), I may, by that means, preserve my house from solitude. For what is more noble than for an old man, who has held the highest honours and offices of the state, to be able justly to say for himself, that which the Pythian Apollo says in Ennius, that he is the person from whom, if not nations and kings, yet all his fellow-citizens, solicit advice,

          'Uncertain how to act; whom, by my aid,
          I send away undoubting, full of counsel,
          No more with rashness things perplexed to sway;'  

[200] L   for without doubt the house of an eminent lawyer is the oracle of the whole city. Of this fact the gate and vestibule of our friend Quintus Mucius is a proof, which, even in his very infirm state of health, and advanced age, is daily frequented by a vast crowd of citizens, and by persons of the highest rank and splendour.    

{46.} [201] L   "It requires no very long explanation to show why I think the public laws ** also, which concern the state and government, as well as the records of history, and the precedents of antiquity, ought to be known to the orator; for as in cases and trials relative to private affairs, his language is often to be borrowed from the civil law, and therefore, as we said before, the knowledge of the civil law is necessary to the orator; so in regard to cases affecting public matters, before our courts, in assemblies of the people, and in the senate, all the history of these and of past times, the authority of public law, the system and science of governing the state, ought to be at the command of orators occupied with affairs of government, as the very groundwork of their speeches. ** [202] For we are not contemplating, in this discourse, the character of an everyday pleader, bawler, or ranter, but that of a man, who, in the first place, may be, as it were, the high-priest of this profession, for which, though nature herself has given rich endowments to man, yet it was thought to be a god that gave it, so that the very thing which is the distinguishing property of man, might not seem to have been acquired by ourselves, but bestowed upon us by some divinity; who, in the next place, can move with safety even amid the weapons of his adversaries, distinguished not so much by a herald's caduceus, ** as by his title of orator; who, likewise, is able, by means of his eloquence, to expose guilt and deceit to the hatred of his countrymen, and to restrain them by penalties; who can also, with the shield of his genius, protect innocence from punishment; who can rouse a spiritless and desponding people to glory, or reclaim them from infatuation, or inflame their rage against the guilty, or mitigate it, if incited against the virtuous; who, finally, whatever feeling in the minds of men his object and case require, can either excite or calm it by his eloquence. [203] If any one supposes that this power has either been sufficiently set forth by those who have written on the art of speaking, or can be set forth by me in so brief a space, he is greatly mistaken, and understands neither my inability, nor the magnitude of the subject. For my own part, since it was your desire, I thought that the fountains ought to be shown you, from which you might draw, and the roads which you might pursue, not so that I should become your guide (which would be an endless and unnecessary labour), but so that I might point out to you the way, and, as the practice is, might hold out my finger towards the spring." **    

{47.} [204] L   "To me," remarked Scaevola, "enough appears to have been said by you, and more than enough, to stimulate the efforts of these young men, if they are but studiously inclined; for as they say that the illustrious Socrates used to observe that his object was attained if any one was by his exhortations sufficiently incited to desire to know and understand virtue; (since to those who were persuaded to desire nothing so much as to become good men, what remained to be learned was easy;) so I consider that if you wish to penetrate into those subjects which Crassus has set before you in his remarks, you will, with the greatest ease, arrive at your object, after this course and gate has been opened to you." [205] "To us," said Sulpicius, "these instructions are exceedingly pleasant and delightful; but there are a few things more which we still desire to hear, especially those which were touched upon so briefly by you, Crassus, in reference to oratory as an art, when you confessed that you did not despise them, but had learned them. If you will speak somewhat more at length on those points, you will satisfy all the eagerness of our long desire. For we have now heard to what objects we must direct our efforts, a point which is of great importance; but we long to be instructed in the ways and means of pursuing those objects."     [206] "Then," said Crassus, "(since I, to detain you at my house with less difficulty, have rather complied with your desires, than my own habit or inclination,) what if we ask Antonius to tell us something of what he still keeps in reserve, and has not yet made known to us, (on which subjects he complained, a while ago, that a book has already dropped from his pen,) and to reveal to us his mysteries in the art of speaking?"   "As you please," said Sulpicius, "for, if Antonius speaks, we shall still learn what you think." [207] "I request of you then, Antonius," said Crassus, "since this task is put upon men of our time of life by the studious inclinations of these youths, to deliver your sentiments upon these subjects which, you see, are required from you."    

{48.} "I see plainly, and understand indeed," replied Antonius, "that I am caught, not only because those things are required from me in which I am ignorant and unpractised, but because these young men do not permit me to avoid, on the present occasion, what I always carefully avoid in my public pleadings, namely, not to speak after you, Crassus. [208] But I will enter upon what you desire the more boldly, as I hope the same thing will happen to me in this discussion as usually happens to me at the bar, that no flowers of rhetoric will be expected from me. For I am not going to speak about art, which I never learned, but about my own practice; and those very particulars which I have entered in my common-place book are of this kind, ** not expressed with anything like learning, but just as they are treated in business and pleadings; and if they do not meet with approbation from men of your extensive knowledge, you must blame your own unreasonableness, in requiring from me what I do not know; and you must praise my affability, since I make no difficulty in answering your questions, being induced, not by my own judgment, but your earnest desire." [209] "Go on, Antonius," answered Crassus, "for there is no danger that you will say anything otherwise than so prudently that no one here will repent of having prompted you to speak."    

"I will go on, then," said Antonius, "and will do what I think ought to be done in all discussions at the commencement; I mean, that the subject, whatever it may be, on which the discussion is held, should be defined; so that the discourse may not be forced to wander and stray from its course, from the disputants not having the same notion of the matter under debate. [210] If, for instance, it were inquired, 'What is the art of a general?' I should think that we ought to settle, at the outset, what a general is; and when he was defined to be a commander for conducting a war, we might then proceed to speak of troops, of encampments, of marching in battle array, of engagements, of besieging towns, of provisions, of laying and avoiding ambushes, and other matters relative to the management of a war; and those who had the capacity and knowledge to direct such affairs I should call generals; and should adduce the examples of the Africani and Maximi, and speak of Epaminondas, and Hannibal, and men of such character. [211] But if we should inquire what sort of character he is, who should contribute his experience, and knowledge, and zeal to the management of the state, I should give this sort of definition, that he who understands by what means the interests of the republic are secured and promoted, and employs those means, is worthy to be esteemed a director in affairs of government, and a leader in public councils; and I should mention Publius Lentulus, that princeps senatus, ** and Tiberius Gracchus the father, and Quintus Metellus, and Publius Africanus, and Gaius Laelius, and others without number, as well of our own city as of foreign states. [212] But if it should be asked, 'Who truly deserved the name of a lawyer?' I should say that he deserves it who is learned in the laws, and that general usage ** which private persons observe in their intercourse in the community, who can give an answer on any point, can plead, and can take precautions for the interests of his client; and I should name Sextus Aelius, Manius Manilius, Publius Mucius, as distinguished in those respects. {49.} In like manner, to notice sciences of a less important character, if a musician, if a grammarian, if a poet were the subject of consideration, I could state that which each of them possesses, and than which nothing more is to be expected from each. Even of the philosopher himself, who alone, from his abilities and wisdom, professes almost everything, there is a sort of definition, signifying, that he who studies to learn the powers, nature, and causes of all things, divine and human, and to understand and explain the whole science of living virtuously, may justly deserve this title.    

[213] L   "The orator, however, since it is about him that we are considering, I do not conceive to be exactly the same character that Crassus makes him, who seemed to me to include all knowledge of all matters and sciences, under the single profession and name of an orator; but I regard him as one who can use words agreeable to hear, and thoughts adapted to prove, not only in cases that are pleaded in the forum, but in cases in general. Him I call an orator, and would have him besides accomplished in delivery and action, and with a certain degree of wit. [214] But our friend Crassus seemed to me to define the faculty of an orator, not by the proper limits of his art, but by the almost immense limits of his own genius; for, by his definition, he delivered the helm of civil government into the hands of his orator; a point, which it appeared very strange to me, Scaevola, that you should grant him; when the senate has often given its assent on affairs of the utmost consequence to yourself, though you have spoken briefly and without ornament. And M. Scaurus, who I hear is in the country, at his villa not far off, a man eminently skilled in affairs of government, if he should hear that the authority which his gravity and counsels hear with them, is claimed by you, Crassus, as you say that it is the property of the orator, he would, I believe, come hither without delay, and frighten us out of our talk by his very countenance and aspect; who, though he is no contemptible speaker, yet depends more upon his judgment in affairs of consequence, than upon his ability in speaking; [215] and, if any one has abilities in both these ways, he who is of authority in the public councils, and a good senator, is not on those accounts an orator; and if he that is an eloquent and powerful speaker be also eminent in civil administration, he did not acquire his political knowledge ** through oratory. Those talents differ very much in their nature, and are quite separate and distinct from each other; nor did Marcus Cato, Publius Africanus, Quintus Metellus, Gaius Laelius, who were all eloquent, give lustre to their own speeches, and to the dignity of the republic, by the same art and method.    

{50.} It is not enjoined, let me observe, by the nature of things, or by any law or custom, that one man must not know more than one art; [216] and therefore, though Pericles was the best orator in Athens, and was also for many years director of the public counsels in that city, the talent for both those characters must not be thought to belong to the same art because it existed in the same man; nor if Publius Crassus was both an orator and a lawyer, is the knowledge of the civil law for that reason included in the power of speaking. [217] For if every man who, while excelling in any art or science, has acquired another art or science in addition, shall represent that his additional knowledge is a part of that in which he previously excelled, ** we may, by such a mode of argument, pretend that to play well at ball or duodecim scripta, ** is a part of the knowledge of civil law, because Publius Mucius was skilled in both; and, by similar reasoning, those whom the Greeks call physikoi, 'natural philosophers,' may be regarded as poets, because Empedocles the natural philosopher wrote an excellent poem. But not even the philosophers themselves, who would have everything, as their own right, to be theirs, and in their possession, have the confidence to say that geometry or music is a part of philosophy, because all acknowledge Plato to have been eminently excellent in those sciences. [218] And if it be still your pleasure to attribute all sciences to the orator, it will be better for us, rather, to express ourselves to this effect, that since eloquence must not be bald and unadorned, but marked and distinguished by a certain pleasing variety of manifold qualities, it is necessary for a good orator to have heard and seen much, to have gone over many subjects in thought and reflection, and many also in reading; though not so as to have taken possession of them as his own property, but to have tasted of them as things belonging to others. For I confess that the orator should be a knowing man, not quite a beginner or novice in any subject, not utterly ignorant or inexperienced in any business of life.    

{51.} [219] L   "Nor am I deterred, Crassus, by those tragic arguments of yours, ** on which the philosophers dwell most of all; I mean, when you said, that no man can, by speaking, excite the passions of his audience, or calm them when excited, (in which efforts it is that the power and greatness of an orator are chiefly seen,) unless one who has gained a thorough insight into the nature of all things, and the dispositions and motives of mankind; on which account philosophy must of necessity be studied by the orator; a study in which we see that the whole lives of men of the greatest talent and leisure are spent; the copiousness and magnitude of whose learning and knowledge I not only do not despise but greatly admire; but, for us who are engaged in so busy a state, and such occupations in the forum, it is sufficient to know and say just so much about the manners of mankind as is not inconsistent with human nature. For what great and powerful orator, whose object was to make a judge angry with his adversary, ever hesitated, because he was ignorant what anger was, whether 'a heat of temper,' or 'a desire of vengeance for pain received'? ** [220] Who, when he wished to stir up and inflame other passions in the minds of the judges or people by his eloquence, ever uttered such things as are said by the philosophers? part of whom deny that any passions whatever should be excited in the mind, and say that they who rouse them in the breasts of the judges are guilty of a heinous crime, and part, who are inclined to be more tolerant, and to accommodate themselves more to the realities of life, say that such emotions ought to be but very moderate and gentle. [221] But the orator, by his eloquence, represents all those things which, in the common affairs of life, are considered evil and troublesome, and to be avoided, as heavier and more grievous than they really are; and at the same time amplifies and embellishes, by power of language, those things which to the majority of mankind seem inviting and desirable; nor does he wish to appear so very wise among fools, as that his audience should think him impertinent or a pedantic Greek, or, though they very much approve his understanding, and admire his wisdom, yet should feel uneasy that they themselves are but idiots to him; [222] but he so effectually penetrates the minds of men, so works upon their senses and feelings, that he has no occasion for the definitions of philosophers, or to consider in the course of his speech, 'whether the chief good lies in the mind or in the body;' 'whether it is to be defined as consisting in virtue or in pleasure;' 'whether these two can be united and coupled together;' or 'whether,' as some think, 'nothing certain can be known, nothing clearly perceived and understood;' questions in which I acknowledge that a vast multiplicity of learning, and a great abundance of varied reasoning is involved: [223] but we seek something of a far different character; we want a man of superior intelligence, sagacious by nature and from experience, who can acutely divine what his fellow-citizens, and all those whom he wishes to convince on any subject by his eloquence, think, feel, imagine, or hope. 

{52.} "He must penetrate the inmost recesses of the mind of every class, age, and rank; and must ascertain the sentiments and notions of those before whom he is pleading, ** or intends to plead; [224] but his books of philosophy he must reserve to himself, for the leisure and tranquillity of such a Tusculan villa as this, and must not, when he is to speak on justice and honesty, borrow from Plato; who, when he thought that such subjects were to be illustrated in writing, imagined in his pages a new kind of commonwealth; so much was that which he thought necessary to be said of justice, at variance with ordinary life and the general customs of the world. [225] But if such notions were received in existing communities and nations, who would have permitted you, Crassus, though a man of the highest character, and the chief leader in the city, to utter what you addressed to a vast assembly of your fellow-citizens? ** 'Deliver us from these miseries, deliver us from the jaws of those whose cruelty cannot be satiated even with blood; suffer us not to be slaves to any but yourselves as a people, whom we both can and ought to serve.' I say nothing about the word miseries, in which, as the philosophers say, ** a man of fortitude cannot be; I say nothing of the jaws from which you desire to be delivered, that your blood may not he drunk by an unjust sentence; a thing which they say cannot happen to a wise man; but how dare you say that not only yourself, but the whole senate, whose cause you were then pleading, were slaves ? [226] Can virtue, Crassus, possibly be enslaved, according to those whose precepts you make necessary to the science of an orator; virtue which is ever and alone free, and which, though our bodies be captured in war, or bound with fetters, yet ought to maintain its rights and liberty inviolate in all circumstances? ** And as to what you added, that the senate not only can but ought to be slaves to the people, what philosopher is so effeminate, so languid, so enervated, so eager to refer everything to bodily pleasure or pain, as to allow that the senate should be the slaves of the people, to whom the people themselves have delivered the power, like certain reins as it were, to guide and govern them?    

{53.} [227] L   "Accordingly, when I regarded these words of yours as the divinest eloquence, Publius Rutilius Rufus, ** a man of learning, and devoted to philosophy, observed that what you had said was not only injudicious, but base and dishonourable. The same Rutilius used severely to censure Servius Galba, whom he said he very well remembered, because, when Lucius Scribonius brought an accusation against him, and Marcus Cato, a bitter and implacable enemy to Galba, had spoken with rancour and vehemence against him before the assembled people of Rome, (in a speech which he published in his Origines, **) [228] Rutilius, I say, censured Galba, for holding up, almost upon his shoulders, Quintus, the orphan son of Gaius Sulpicius Gallus, his near relation, that he might, through the memory of his most illustrious father, draw tears from the people, and for recommending two little sons of his own to the guardianship of the public, and saying that he himself (as if he was making his will in the ranks before a battle, ** without balance or writing tables, **) appointed the people of Rome protectors of their orphan condition. As Galba, therefore, laboured under the ill-opinion and dislike of the people, Rutilius said that he owed his deliverance to such tragic tricks as these; and I see it is also recorded in Cato's book, that if he had not employed children and tears, he would have suffered. Such proceedings Rutilius severely condemned, and said banishment, or even death, was more eligible than such meanness. [229] Nor did he merely say this, but thought and acted accordingly; for being a man, as you know, of exemplary integrity, a man to whom no person in the city was superior in honesty and sincerity, he not only refused to supplicate his judges, but would not allow his case to be pleaded with more ornament or freedom of language than the simple plainness of truth carried with it. ** Small was the part of it he assigned to Cotta here, his sister's son, and a youth of great eloquence; and Quintus Mucius also took some share in his defence, speaking in his usual manner, without ostentation, but simply and with perspicuity. [230] But if you, Crassus, had then spoken, you, who just now said that the orator must seek assistance from those disputations in which the philosophers indulge, to supply himself with matter for his speeches, if you had been at liberty to speak for Publius Rutilius, not after the manner of philosophers, but in your own way, although his accusers had been, as they really were, accursed and mischievous citizens, and worthy of the severest punishment, yet the force of your eloquence would have rooted all their unwarrantable cruelty from the bottom of their hearts. But, as it was, a man of such a character was lost, because his case was pleaded in such a manner as if the whole affair had been transacted in the imaginary republic of Plato. Not a single individual uttered a groan; not one of the advocates gave vent to an exclamation; no one showed any appearance of grief; no one complained; no one supplicated, no one implored the mercy of the public. In short, no one even stamped a foot on the trial, for fear, I suppose, of renouncing the doctrine of the Stoics.    

{54.} [231] L   "Thus a Roman, of consular dignity, imitated the illustrious Socrates of old, who, as he was a man of the greatest wisdom and had lived in the utmost integrity, spoke for himself, when on trial for his life, in such a manner as not to seem a suppliant or prisoner, but the lord and master of his judges. Even when Lysias. a most eloquent orator, brought him a written speech, which, if he pleased, he might learn by heart and repeat at his trial, he willingly read it over, and said it was written in a manner very well suited to the occasion; but, said he, if you had brought me Sicyonian shoes, ** I should not wear them, though they might be easy and suit my feet, because they would be effeminate; so that speech seems to me to be eloquent and becoming an orator, but not fearless and manly. In consequence, he also was condemned, not only by the first votes, by which the judges only decided whether they should acquit or condemn, but also by those which, in conformity with the laws, they were obliged to give afterwards. [232] For at Athens, if the accused person was found guilty, and if his crime was not capital, there was a sort of estimation of punishment; and when sentence was to be finally given by the judges, the criminal was asked what degree of punishment he acknowledged himself, at most, to deserve; and when this question was put to Socrates, he answered, that he deserved to be distinguished with the noblest honours and rewards, and to be daily maintained at the public expense in the prytaneion; an honour which, amongst the Greeks, is accounted the very highest. [233] By which answer his judges were so exasperated, that they condemned the most innocent of men to death. But had he been acquitted, (which, indeed, though it is of no concern to us, yet I could wish to have been the case, because of the greatness of his genius,) how could we have patience with those philosophers who now, though Socrates was condemned for no other crime but want of skill in speaking, maintain that the precepts of oratory should be learned from themselves, who are disciples of Socrates? With these men I have no dispute as to which of the two sciences is superior, or carries more truth in it; I only say that the one is distinct from the other, and that oratory may exist in the highest perfection without philosophy.    

{55.} [234] L   "In bestowing such warm approbation on the civil law, Crassus, I see what was your motive; when you were speaking, I did not see it. ** In the first place, you were willing to oblige Scaevola, whom we ought all to esteem most deservedly for his singularly excellent disposition; and seeing his science unassisted and unadorned, you have enriched it with your eloquence as with a dowry, and decorated it with a profusion of ornaments. In the next, as you had spent much pains and labour in the acquisition of it, (since you had in your own house one ** who encouraged and instructed you in that study,) you were afraid that you might lose the fruit of your industry, if you did not magnify the science by your eloquence. [235] But I have no dispute with the science; let it be of as much consequence as you represent it; for without doubt it is of great and extensive concern, having relation to multitudes of people, and has always been held in the highest honour; and our most eminent citizens have ever been, and are still, at the head of the profession of it; but take care, Crassus, lest, while you strive to adorn the knowledge of the civil law with new and foreign ornaments, you spoil and denude her of what is granted and accorded to her as her own. [236] For if you were to say, that he who is a lawyer is also an orator, and that he who is an orator is also a lawyer, you would make two excellent branches of knowledge, each equal to the other, and sharers of the same dignity; but now you allow that a man may be a lawyer without the eloquence which we are considering, and that there have been many such; and you deny that a man can be an orator who has not acquired a knowledge of law. Thus the lawyer is, of himself, nothing with you but a sort of wary and acute legalist, an instructor in actions, ** a repeater of formulae, a catcher at syllables; but because the orator has frequent occasion for the aid of the law in his pleadings, you have of necessity joined legal knowledge to eloquence as a handmaid and attendant.    

{56.} [237] L   "But as to your wonder at the effrontery of those advocates who, though they were ignorant of small things, profess great ones, or who ventured, in the management of cases, to treat of the most important points in the civil law, though they neither understood nor had ever learned them, the defence on both charges is easy and ready. For it is not at all surprising that he who is ignorant in what form of words a contract of marriage is made, should be able to defend the case of a woman who has formed such a contract; nor, though the same skill in steering is requisite for a small as for a large vessel, is he therefore, who is ignorant of the form of words by which an estate is to be divided, incapable of pleading a case relative to the division of an estate. ** [238] For though you appealed to cases of great consequence, pleaded before the centumviri, that turned upon points of law, what case was there amongst; them all, which could not have been ably pleaded by an eloquent man unacquainted with law? in all which cases, as in the case of Manius Curius, which was lately pleaded by you, ** and that of Gaius Hostilius Mancinus, ** and that of the boy who was born of a second wife, without any notice of divorce having been sent to the first, ** there was the greatest disagreement among the most skilful lawyers on points of law. [239] I ask, then, how in these cases a knowledge of the law could have aided the orator, when that lawyer must have had the superiority, who was supported, not by his own, but a foreign art, not by knowledge of the law, but by eloquence? I have often heard that, when Publius Crassus was a candidate for the aedileship, and Servius Galba, though older than he, and even of consular dignity, attended upon him to promote his interest, (having betrothed Crassus's daughter to his son Gaius,) there came a countryman to Crassus to consult him on some matter of law; and when he had taken Crassus aside, and laid the affair before him, and received from him such an answer as was rather right than suited to his wishes, Galba, seeing him look dejected, called him by his name, and asked him on what matter he had consulted Crassus; when, having heard his case, and seeing the man in great trouble, [240] 'I perceive,' said he, 'that Crassus gave you an answer while his mind was anxious, and pre-occupied with other affairs.' He then took Crassus by the hand, and said, 'Now then, how came it into your head to give this man such an answer?' Crassus, who was a man of great legal knowledge, confidently repeated that the matter was exactly as he had stated in his answer, and that there could be no doubt. But Galba, referring to a variety and multiplicity of matters, adduced abundance of similar cases, and used many arguments for equity against the strict letter of law; while Crassus, as he could not maintain his ground in the debate, (for, though he was numbered among the eloquent, he was by no means equal to Galba,) had recourse to authorities, and showed what he had asserted in the books of his brother Publius Mucius, ** and in the commentaries of Sextus Aelius; though he allowed, at the same time, that Galba's arguments had appeared to him plausible, and almost true.    

{57.} [241] L   "But cases which are of such a kind, that there can be no doubt of the law relative to them, do not usually come to be tried at all. Does any one claim an inheritance under a will, which the father of a family made before he had a son born? Nobody; because it is clear that by the birth of a son the will is cancelled. ** Upon such points of law, therefore, there are no questions to be tried. The orator, accordingly, may be ignorant of all this part of the law relative to controversies, ** which is without doubt the far greater part; [242] but on those points which are disputed, even among the most skilful lawyers, it will not be difficult for the orator to find some writer of authority on that side, whichsoever it be, that he is to defend, from whom, when he has received his javelins ready for throwing, he will hurl them with the arm and strength of an orator. Unless we are to suppose, indeed, (I would wish to make the observation without offending this excellent man Scaevola,) that you, Crassus, defended the case of Manius Curius out of the writings and rules of your father-in-law. Did you not, on the contrary, undertake the defence of equity, the support of wills, and the intention of the dead? [243] Indeed, in my opinion, (for I was frequently present and heard you,) you won the far greater number of votes by your wit, humour, and charming banter, when you joked upon the extraordinary acuteness, and expressed admiration of the genius, of Scaevola, who had discovered that a man must be born before he can die; and when you adduced many cases, both from the laws and decrees of the senate, as well as from common life and intercourse, not only acutely, but facetiously and sarcastically, in which, if we attended to the letter, and not the spirit, nothing would result. The trial, therefore, was attended with abundance of mirth and pleasantry; but of what service your knowledge of the civil law was to you upon it, I do not understand; your great power in speaking, united with the utmost humour and grace, certainly was of great service. [244] Even Mucius himself, the defender of the father's right, who fought as it were for his own patrimony, what argument did he propose in the case, when he spoke against you, that appeared to be drawn from the civil law? What particular law did he recite? What did he explain in his speech that was unintelligible to the unlearned? The whole of his speech was employed upon one point; that is, in maintaining that what was written ought to be valid. But every boy is exercised on such subjects by his master, when he is instructed to support, in such cases as these, sometimes the written letter, sometimes equity. [245] In that case of the soldier, I presume, if you had defended either him or the heir, you would have had recourse to the cases of Hostilius, ** and not to your own power and talent as an orator. Nay, rather, if you had defended the will, you would have argued in such a manner, that the entire validity of all wills whatsoever would have seemed to depend upon that single trial; or, if you had pleaded the case of the soldier, you would have raised his father, with your usual eloquence, from the dead; you would have placed him before the eyes of the audience; he would have embraced his son, and with tears have recommended him to the centumviri; you would have forced the very stones to weep and lament, so that all that clause, as the tongue had declared, would seem not to have been written in the Twelve Tables, which you prefer to all libraries, but in some mere formula of a teacher.    

{58.} [246] L   "As to the indolence of which you accuse our youth, for not learning that science, because, in the first place, it is very easy, (how easy it is, let them consider who strut about before us, presuming on their knowledge of the science, as if it were extremely difficult; and do you yourself also consider that point, who say, that it is an easy science, which you admit as yet to be no science at all, but say that if somebody shall ever learn some other science, so as to be able to make this a science, it will then be a science;) and because, in the next place, it is full of pleasure, (but as to that matter, every one is willing to leave the pleasure to yourself, and is content to be without it, for there is not one of the young men who would not rather, if he must get anything by heart, learn the 'Teucer' of Pacuvius than the Manilian laws ** on buying and selling;) [247] and, in the third place, because you think, that, from love to our country, we ought to acquire a knowledge of the practices of our ancestors; do you not perceive that the old laws are either grown out of date from their very antiquity, or are set aside by such as are new? ** As to your opinion, that men are rendered good by learning the civil law, because, by laws, rewards are appointed for virtue, and punishments for vice; I, for my part, imagined that virtue was instilled into mankind (if it can be instilled by any means) by instruction and persuasion, not by menaces, and force, and terror. As to the maxim that we should avoid evil, we can understand how good a thing it is to do so without a knowledge of the law. [248] And as to myself, to whom alone you allow the power of managing cases satisfactorily, without any knowledge of law, I make you, Crassus, this answer: that I never learned the civil law, nor was ever at a loss for the want of knowledge in it, in those cases which I was able to defend in the courts. ** It is one thing to be a master in any pursuit or art, and another to be neither stupid nor ignorant in common life, and the ordinary customs of mankind. [249] May not every one of us go over our farms, or inspect our country affairs, for the sake of profit or delight at least? ** No man lives without using his eyes and understanding, so far as to be entirely ignorant what sowing and reaping is; or what pruning vines and other trees means; or at what season of the year, and in what manner, those things are done. If, therefore, any one of us has to look at his grounds, or give any directions about agriculture to his steward, or any orders to his bailiff, must we study the books of Mago the Carthaginian, ** or may we be content with our ordinary knowledge? Why, then, with regard to the civil law, may we not also, especially as we are worn out in lawsuits and public business, and in the forum, be sufficiently instructed, to such a degree at least as not to appear foreigners and strangers in our own country? [250] Or, if any case, a little more obscure than ordinary, should be brought to us, it would, I presume, be difficult to communicate with our friend Scaevola here; although indeed the parties, whose concern it is, bring nothing to us that has not been thoroughly considered and investigated. If there is a question about the nature of a thing itself under consideration; if about boundaries; (as we do not go in person to view the property itself **) if about writings and bonds; ** we of necessity have to study matters that are intricate and often difficult; and if we have to consider laws, or the opinions of men skilled in law, need we fear that we shall not be able to understand them, if we have not studied the civil law from our youth ?    

{59.} "Is the knowledge of the civil law, then, of no advantage to the orator? I cannot deny that every kind of knowledge is of advantage, especially to him whose eloquence ought to be adorned with variety of matter; but the things which are absolutely necessary to an orator are numerous, important, and difficult, so that I would not distract his industry among too many studies. [251] Who can deny that the gesture and grace of Roscius are necessary in the orator's action and deportment? Yet nobody would advise youths that are studying oratory to labour in forming their attitudes like players. What is so necessary to an orator as the voice? Yet, by my recommendation, no student in eloquence will be a slave to his voice like the Greeks and tragic actors, ** who pass whole years in sedentary declamation, and daily, before they venture upon delivery, raise their voice by degrees as they sit, and, when they have finished pleading, sit down again, and lower and recover it, as it were, through a scale, from the highest to the deepest tone. If we should do this, they whose cases we undertake would be condemned, before we had repeated the paean and the (?) munio ** as often as is prescribed. [252] But if we must not employ ourselves upon gesture, which is of great service to the orator, or upon the culture of the voice, which alone is a great recommendation and support of eloquence; and if we can only improve in either, in proportion to the leisure afforded us in this field of daily business; how much less must we apply to the occupation of learning the civil law? of which we may learn the chief points without regular study, and which is also unlike those other matters in this respect, that power of voice and gesture cannot be got suddenly, or caught up from another person, but a knowledge of the law, as far as it is useful in any case, may be gained on the shortest possible notice, either from learned men or from books. [253] Those eminent Greek orators, therefore, as they are unskilled in the law themselves, have, in their lawsuits, men acquainted with the law to assist them, who are, as you before observed, called pragmatici. In this respect our countrymen act far better, as they would have the laws and judicial decisions supported by the authority of men of the highest rank. But the Greeks would not have neglected, if they had thought it necessary, to instruct the orator in the civil law, instead of allowing him a pragmaticus for an assistant.    

{60.} [254] L   "As to your remark, that age is preserved from solitude by the science of the civil law, we may perhaps also say that it is preserved from solitude by a large fortune. But we are inquiring, not what is advantageous to ourselves, but what is necessary for the orator. Although (since we take so many points of comparison with the orator from one sort of artist) Roscius, whom we mentioned before, is accustomed to say, that, as age advances upon him, he will make the measures of the flute-player slower, and the notes softer. But if he who is restricted to a certain modulation of numbers and feet, meditates, notwithstanding, something for his ease in the decline of life, how much more easily can we? I will not say lower our tones, but alter them entirely? [255] For it is no secret to you, Crassus, how many and how various are the modes of speaking; a variety which I know not whether you yourself have not been the first to exhibit to us, since you have for some time spoken more softly and gently than you used to do; nor is this mildness in your eloquence, which carries so high authority with it, less approved than your former vast energy and exertion; and there have been many orators, as we hear of Scipio and Laelius, who always spoke in a tone only a little raised above that of ordinary conversation, but never exerted their lungs or throats like Servius Galba. But if you shall ever be unable or unwilling to speak in this manner, are you afraid that your house, the house of such a man and such a citizen, will, if it be not frequented by the litigious, be deserted by the rest of mankind ? For my part, I am so far from having any similar feeling with regard to my own house, that I not only do not think that comfort for my old age is to be expected from a multitude of clients, but look for that solitude which you dread, as for a safe harbour; for I esteem relaxation to be the most agreeable solace in the last stage of life.    

[256] "Those other branches of knowledge (though they certainly assist the orator) I mean general history, and jurisprudence, and the ways of the ancients, and a variety of precedents I will, if ever I have occasion for them, borrow from my friend Longinus, ** an excellent man, and one of the greatest erudition in such matters. Nor will I dissuade these youths from reading everything, hearing everything, and acquainting themselves with every liberal study, and all polite learning, as you just now recommended; but, upon my word, they do not seem likely to have too much time, if they are inclined to pursue and practise all that you, Crassus, have dictated; for you seemed to me to impose upon their youth obligations almost too severe, (though almost necessary I admit, for the attainment of their desires,) [257] since extemporary exercises upon stated cases, and accurate and studied meditations, and practice in writing, which you truly called the modeller and finisher of the art of speaking, are tasks of much difficulty; and that comparison of their own composition with the writings of others, and impromptu discussion, on the work of another by way of praise or censure, confirmation or refutation, demand no ordinary exertion, either of memory or powers of imitation.    

{61.} [258] L   "But what you added was appalling, and indeed will have, I fear, a greater tendency to deter than to encourage. You would have every one of us a Roscius in our profession; and you said that what was excellent did not so much attract approbation, as what was faulty produced outright disgust; but I do not think that imperfection is so disparagingly regarded in us as in the actors; [259] and I observe, accordingly, that we are often heard with the utmost attention, even when we are hoarse, for the interest of the subject itself and of the case detains the audience; while Aesopus, if he has the least hoarseness, is hissed; for offence is taken at those, from whom nothing is expected but to please the ear, whenever the least reduction of that pleasure occurs. But in eloquence there are many qualities that captivate; and, if they are not all of the highest excellence, and yet most of them are praiseworthy, those that are of the highest excellence must necessarily excite admiration.    

[260] L   "To return therefore to our first consideration, let the orator be, as Crassus described him, one who can speak in a manner adapted to persuade; and let him strictly devote himself to those things which are of common practice in civil communities, and in the forum, and, laying aside all other studies, however high and noble they may be, let him apply himself day and night, if I may say so, to this one pursuit, and imitate him to whom doubtless the highest excellence in oratory is conceded, Demosthenes the Athenian, in whom there is said to have been so much ardour and perseverance, that he overcame, first of all, the impediments of nature by pains and diligence; and, though his voice was so inarticulate that he was unable to pronounce the first letter of the very art which he was so eager to acquire, he accomplished so much by practice that no one is thought to have spoken more distinctly; [261] and though his breath was short, he effected such improvement by holding it in while he spoke, that in one sequence of words (as his writings show) two risings and two fallings of his voice were included; ** and he also (as is related), after putting pebbles into his mouth, used to pronounce several verses at the highest pitch of his voice without taking breath, not standing in one place, but walking forward, and mounting a steep ascent. [262] With such encouragements as these, I sincerely agree with you, Crassus, that youths should be incited to study and industry; other accomplishments which you have collected from various and distinct arts and sciences, though you have mastered them all yourself, I regard as unconnected with the proper business and duty of an orator."    

{62.} When Antonius had concluded these observations, Sulpicius and Cotta appeared to be in doubt whose discourse of the two seemed to approach nearer to the truth. [263] Crassus then said, "You make our orator a mere mechanic, Antonius, but I am not certain whether you are not really of another opinion, and whether you are not practising upon us your wonderful skill in refutation, in which no one was ever your superior; a talent of which the exercise belongs properly to orators, but has now become common among philosophers, especially those who are accustomed to speak fully and fluently on both sides of any question proposed. [264] But I did not think, especially in the hearing of these young men, that merely such an orator was to be described by me, as would pass his whole life in courts of justice, and would carry thither nothing more than the necessity of his cases required; but I contemplated something greater, when I expressed my opinion that the orator, especially in such a republic as ours, ought to be deficient in nothing that could adorn his profession. But, since you have confined the whole business of an orator within such narrow limits, you will explain to us with less difficulty what you have determined as to oratorical ** duties and rules; I think, however, that this may be done tomorrow, for we have talked enough for today. [265] And Scaevola, since he has arranged to go to his own Tusculan home, ** will now rest a little till the heat is abated; and let us also, as the day is so far advanced, consult our health." ** The proposal pleased the whole company. Scaevola then said, "Indeed, I could wish that I had not made an appointment with Laelius to go to that part of the Tusculan territory today. I would willingly hear Antonius;" and, as he rose from his seat, he smiled and added, "for he did not offend me so much when he pulled our civil law to pieces, as he amused me when he professed himself ignorant of it."

Book 2



FOOTNOTES


(1)   From philosophy. 

(2)   This Aculeo married Cicero's aunt by the mother's side, as he tells us in the beginning of the second book of this treatise, c. 1, and his sons by that marriage, cousins to Cicero and his brother Quintus, were all bred up together with them, in a method approved by L. Crassus, the chief character in this dialogue, and by those very masters under whom Crassus himself had been. B. 

(3)   Orellius retains haec aliena studia, in his text, but acknowledges aliena to be corrupt. Wyttenbach conjectured antiqua studia, for antiquitatis studia. Ellendt observes that Madvig proposed Aeliana, from Lucius Aelius Stilo, the master of Varro, extolled by Cicero, Brut. 56; Acad. i. 2, 8; Legg. ii. 23. See Suetonius, de Ill. Gramm. c. 3; and Aul. Gell. x. 21. This conjecture, says Henrichsen, will suit very well with the word haec, which Crassus may be supposed to have used, because Aelius Stilo was then alive, and engaged in those studies. 

(4)   It appears from Quintilian and Juvenal, that this was a Roman custom as well as Greek, under the emperors; they are also mentioned by Ulpian. But in Cicero's time the Patroni causarum, or advocates, though they studied nothing but oratory, and were in general ignorant of the law, yet did not make use of any of these low people called Pragmatici, as the Greeks did at that time, but upon any doubts on the law, applied themselves to men of the greatest reputation in that science, such as the Scaevolae. But under the emperors there was not the same encouragement for these great men to study that science; the orators, therefore, fell of necessity into the Greek custom. Quint, xii. 3: 'Neque ego sum nostri moris ignarus, oblitusve eorum, qui velut ad Arculas sedent, et tela agentibus subministrant, neque idem Graecos nescio factitare, unde nomen his Pragmaticorum datum est.'  Juv. Sat. vii. 123:    Si quater egisti, si contigit aureus unus,    Inde cadunt partes ex foedere Pragmaticorum. B. 

(5)   As the collection of forms published by Flavius, and from him called Ius civile Flavianum, soon grew defective, as new contracts arose every day, another was afterwards compiled, or rather only made public, by Sextus Aelius, for the forms seem to have been composed as the different emergencies arose, by such of the patricians as understood the law, and to have been by them secreted to extend their own influence; however, this collection, wherein were many new forms adapted to the cases and circumstances which had happened since the time of Flavius, went under the title of Jus Aelianum, from this Aelius here praised by Ennius. B. 

(6)   The custom Respondendi de Iure, and the interpretations and decisions of the learned, were so universally approved, that, although they were unwritten, they became a new species of law, and were called Auctoritas, or Responsa Prudentum. This custom continued to the time of Augustus without interruption, who selected particular lawyers, and gave them the sanction of a patent; but then grew into desuetude, till Hadrian renewed this office or grant, which made so considerable a branch of the Roman law. B. 

(7)   Iura publica. Dr. Taylor, in his History of the Roman Law, p. 62, has given us the heads of the Roman Ius publicum, which were: religion and divine worship; peace and war legislation; exchequer and res fisci; escheats; the prerogative; law of treasons; taxes and imposts; coinage; jurisdiction; magistracies; regalia; embassies; honours and titles; colleges, schools, corporations; castles and fortifications; fairs, mercats, staple; forests; naturalization. B. 

(8)   Tanquam aliqua materies. Ernesti's text, says Orellius, has alia, by mistake. Aliqua is not very satisfactory. Nobbe, the editor of Tauchnitz's text, retains Ernesti's alia. 

(9)   The herald's caduceus, or wand, renders his person inviolable. Pearce. 

(10)   Ut fieri solet. Ernesti conjectures ut dici solet. Ellendt thinks the common reading right, requiring only that we should understand a commonstrantibus. 

(11)   Not recorded with any elegance, but in the plain style in which I am now going to express myself. Ernesti. 

(12)   Principem illum. Nempe senatus. He was consul with Gnaeus Domitius, 162 B.C.   Ellendt. 

(13)   The unwritten law. 

(14)   Aliquam scientiam. For aliquam Manutius conjectured illam, which Lambinus, Ernesti, and Mueller approve. Wyttenbach suggested alienam, which has been adopted by Schutz and Orellius. I have followed Manutius. 

(15)   Sciet--excellet. The commentators say nothing against these futures. 

(16)   Duodecim scriptis. This was a game played with counters on a board, moved according to throws of the dice, but different from our backgammon. The reader may find all that is known of it in Adam's Roman Antiquities, p. 423, and Smith's Dict. of Gr. and Rom. Ant. art. Latrunculi. 

(17)   Istis tragoediis tuis. Persons are said tragoedias in nugis agere, who make a small matter great by clamouring over it, as is done by actors in tragedies. Proust. See b. ii. c. 51; Quint. vi. 1. 36. 

(18)   See Aristotle, Rhetor. ii. 2; Cic. Tusc.. Quaest. iv. 

(19)   Most copies have aget; Pearce, with the minority, prefers agit. 

(20)   These words are taken from a speech which Crassus had a short time before delivered in an assembly of the people, and in which he had made severe complaints of the Roman knights, who exercised their judicial powers with severity and injustice, and gave great trouble to the senate. Crassus took the part of the senate, and addressed the exhortation in the text to the people. Proust. Crassus was supporting the Servilian law. Manutius. 

(21)   Ut illi aiunt. The philosophers, especially the Stoics, who affirmed that the wise man alone is happy. Ellendt. 

(22)   See the Paradox of Cicero on the words Omnes sapientes liberi, omnes stulti servi. 

(23)   Mentioned by Cic. Brut. c. 30. Proust. He was a perfect Stoic. Ellendt. 

(24)   A work on the origin of the people and cities of Italy, and other matters, now lost. Cic. Brut. c. 85; Corn. Nep. Life of Cato, c. 3. 

(25)   When a soldier, in the hearing of three or more of his comrades, named some one his heir in case he should fall in the engagement. 

(26)   When a person, in the presence of five witnesses and a libripens, assigned his property to somebody as his heir. Gaius, ii. 101; Aul. Gell. xv. 27. 

(27)   He was falsely accused of extortion in his province of Asia, and, being condemned, was sent into exile. Cic. Brut. c. 30. Proust. 

(28)   Shoes made at Sicyon, and worn only by the effeminate and luxurious. Lucret. iv. 1121. 

(29)   Tum, quum dicebas, non videbam. Many copies omit the negative, an omission approved by Ernesti, Henrichsen, and Ellendt. 

(30)   Either Scaevola, the father-in-law of Crassus, or Lucius Coelius Antipater, whom Cicero mentions in his Brutus. Proust. 

(31)   Praeco actionum. One who informs those who are ignorant of law when the courts will be open; by what kind of suit any person must prosecute his claims on any other person; and acts in law proceedings as another sort of praeco acts at auctions. Strobaeus. 

(32)   Herctum cieri--herciscundae familiae. Co-heirs, when an estate descended amongst them, were, by the Roman law, bound to each other by the action familiae herciscundae; that is, to divide the whole family inheritance, and settle all the accounts which related to it. Just. Inst. iii. 28. 4. The word herctum, says Festus, signifies whole or undivided, and cio, to divide; so, familiam herctam ciere was to divide the inheritance of the family, which two words, herctum ciere, were afterwards contracted into herciscere: hence this law-term used here, familiam herciscere. Servius has, therefore, from Donatus, thus illustrated a passage in Virgil, at the end of the VIIth Aeneid,    Citae Metium in diversa quadrigae    Distulerant.     Citae, says he, is a law-term, and signifies divided, as hercto non cito, the inheritance being undivided. Citae quadrigae, therefore, in that passage, does not mean quick or swift, as is generally imagined, but drawing different ways. B.  

(33)   See c. 39. 

(34)   C. 40. 

(35)   C. 40 

(36)   The Crassus here mentioned was Publius Crassus Dives, brother of Publius Mucius, Pontifex Maximus. See c. 37. Ellendt. 

(37)   Cicero pro Caecina, c. 25; Gaius, ii. 138. 

(38)   Omnem hanc partem iuris in controversiis. For in controversiis Lanibinus and Ernesti would read, from a correction in an old copy, incontroversi; but as there is no authority for this word, Ellendt, with Bakius, prefers non controversi. With this alteration, the sense will be 'all this uncontroverted part of the law.'

(39)   Certain legal formulae, of which some lawyer named Hostilius was the author. Ernesti. 

(40)   Manilianos--leges. They were formulae which those who wished not to be deceived might use in buying and selling; they are called actiones by Varro, R. R. ii. 5, 11. . . . The author was Manius Manilius, an eminent lawyer, who was consul 151 B.C.   Ernesti.

(41)   There is no proper grammatical construction in this sentence. Ernesti observes that it is, perhaps, in some way unsound. 

(42)   In Iure. 'Apud tribunal praetoris.' Ernesti. 

(43)   I translate the conclusion of this sentence in conformity with the text of Orellius, who puts tamen at the end of it, instead of letting it stand at the beginning of the next sentence, as is the case in other editions. His interpretation is, invisere saltem. 'Though we be much occupied, yet we can visit our farms.' 

(44)   He wrote eight-and-twenty books on country affairs in the Punic language, which were translated into Latin, by order of the senate, by Cassius Dionysius of Utica. See Varro, R. R. i. 1; and Columella. who calls him the father of farming. Proust. 

(45)   Quum in rem praesentem non venimus. We do not go ad locum, unde praesentes rem et fines inspicere possimus. Ellendt. 

(46)   Perscriptionibus. Perscriptio is considered by Ellendt to signify a draft or cheque to be presented to a banker. 

(47)   Graecorum more et tragoedorum. Lambinus would strike out et, on the authority of three manuscripts; and Pearce thinks that the conjunction ought to be absent. Ernesti thinks that some substantive belonging to Graecorum has dropped out of the text. A Leipsic edition, he observes, has Graecorum more sophistarum et tragoedorum, but on what authority he does not know. 

(48)   Paeanem aut munionem. The word munionem is corrupt. Many editions have nomium, which is left equally unexplained. The best conjectural emendation, as Orellius observes, is nomum, proposed by a critic of Jena.

(49)   Ernesti supposes him to be Gaius Cassius Longinus, who is mentioned by Cicero, pro Planco, c. 24. 

(50)   In one period or sentence he twice raised and twice lowered his voice: he raised it in the former members of the period, and lowered it in the latter; and this he did in one breath. Proust. This seems not quite correct. Cicero appears to mean, that of the two members the voice was once raised and once lowered in each. 

(51)   Orellius's text has praeceptis oratoris; but we must undoubtedly read oratoriis with Pearce. 

(52)   Atticus was exceedingly pleased with this treatise, and commended it extremely, but objected to the removal of Scaevola from the conversation, after he had been introduced into the first dialogue. Cicero defends himself by the example of their 'god Plato,' as he calls him, in his book De Republica; where the scene being laid in the house of an old gentleman, Cephalus, the old man, after bearing a part in the first conversation, excuses himself, saying, that he must go to prayers, and returns no more, Plato not thinking it suitable to his age to be detained in the company through so long a discourse. With greater reason, therefore, he says that he had used the same caution in the case of Scaevola; since it was not to be supposed that a person of his dignity, extreme age, and infirm health, would spend several successive days in another man's house: that the first day's dialogue related to his particular profession, but the other two chiefly to the rules and precepts of the art, at which it was not proper for one of Scaevola's temper and character to be present only as a hearer. Ad Attic, iv. 16. B. 

(53)   Retire from the heat, like Scaevola, and take rest.



Book 2



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