1 The beginning of Book 4 further sets forth the author's attitude to the Greek writers on rhetoric (who these are specifically is uncertain); cf. also 3.xxiii.38. For his attitude to philosophical studies see the end of Book 4.

2 Apparently text-books on public speaking sold well; see Theodore Birt, Rhein. Mus. 72 (1917/18), 311‑16.

3 The definition is that of Hermagoras, to whom the function (ἔργον) of the perfect orator is τὸ τεθὲν πολιτικὸν ζήτημα διατίθεσθαι κατὰ τὸ ἐνδεχόμενον πειστικῶς. See Sextus Empiricus, Adv. Rhet. 62, ed. Fabricius, 2.150. Cf. Cicero, De Inv. 1.v.6.

4 γένη.

5 ἐπιδεικτικόν, συμβουλευτικόν, δικανικόν. The scheme is Aristotelian (Rhet. 1.3, 1358B) but in essence older. The author's emphasis in the first two books, on the judicial kind, is characteristically Hellenistic (e.g., Hermagorean). The better tradition indicates that originally rhetoric was concerned with the judicial kind, and was later extended to the other two fields. For a study of the three genera see D. A. G. Hinks, Class. Quarterly 30 (1936), 170‑6. Cf. Cicero, De Inv. 1.v.7.

6 προτροπή and ἀποτροπή.

7 κατηγορία, δίκη, ἀπολογία.

8 2.ii.2 below.

9 εὕρεσις, τάξις or οἰκονομία, λέξις or ἑρημνεία or φράσις, μνήμη, ὑπόκρισις. The pre-Aristotelian rhetoric, represented by the Rhet. ad Alexandrum, treated the first three (without classifying them); Aristotle would add Delivery (Rhet. 3.1, 1403B), and his pupil Theophrastus did so (see note on 3.xi.19 below). When precisely in the Hellenistic period Memory was added as a fifth division by the Rhodian or the Pergamene school, we do not know. These faculties (res; see also 1.ii.3) are referred to in 2.i.1 below (cf. 1.iii.4) as the speaker's functions (officia = ἔργα τοῦ ῥήτορος). Quintilian, 3.3.11 ff., considers them as departments or constituent elements of the art (partes rhetorices) rather than as opera (= officia); so also here at 3.i.1, 3.viii.15, 3.xvi.28, and Cicero, De Inv. 1.vii.9. ἔργον is an Aristotelian concept (cf. the definition of rhetoric in Rhet. 1.1‑2, 1355B), and Aristotle was the first to classify the (major) functions. Our author here gives the usual order of the divisions; so also Cicero, De Oratore 1.31.142. Diogenes Laertius, 7.43, presents the Stoic scheme: Invention, Style (φράσις), Arrangement, and Delivery. A goodly number of rhetorical systems were actually based on these ἔργα (e.g., in most part Cicero's and Quintilian's); others were based on the divisions of the discourse (μόρια λόγου). See K. Barwick, Hermes 57 (1922), 1 ff.; Friedrich Solmsen, Amer. Journ. Philol. 62 (1941), 35‑50, 169‑90. Our author conflates the two schemes he has inherited; see especially 1.ii.3‑iii.4 , 2.i.1‑ii.2, and the Introduction to the present volume, p. xviii.

10 The concept goes back at least as far as Plato (e.g., Phaedrus 236A); see Aristotle, Rhet. 1.2 (1355B), on finding artistic proofs.

11 τέχνη (also παιδεία, ἐπιστήμη, μάθησις, scientia, doctrina), μίμησις, γυμνασία (also ἄσκησις, μελέτη, ἐμπειρία, συνήθεία, declamatio). The usual triad, Nature (φύσις, natura, ingenium, facultas), Theory and Practice, can be traced back to Protagoras, Plato (Phaedrus 269D), and Isocrates (e.g., Antid. 187; Adv. Soph. 14‑18, where Imitation is also included). Cf. also Aristotle in Diogenes Laertius 5.18; Cicero, De Inv. 1.i.2, De Oratore 1.4.14; Dionysius Halic. in Syrianus, Scholia Hermog., ed. Rabe, 1.4‑5; Tacitus, Dialog. de Orator., ch. 33; Plutarch, De liberis educ. 4 (2A); and see Paul Shorey, Trans. Am. Philol. Assn. 40 (1909), 185‑201. Imitation is presumed to have been emphasized in the Pergamene school of rhetors under Stoic influence. Quintilian, 3.5.1, tells us that it was classed by some writers as a fourth element, which he yet subordinates to Theory. On Imitation cf. Antonius in Cicero, De Oratore 2.21.89 ff.; Dionysius Halic., De Imitat. (Opuscula 2.197‑217, ed. Usener-Radermacher); Quintilian, 10.1.20 ff.; Eduard Stemplinger, Das Plagiat in der Griech. Lit., Leipzig and Berlin, 1912, pp81 ff.; Kroll, "Rhetorik", coll. 1113 ff.; Paulus Otto, Quaestiones selectae ad libellum qui est περὶ ὕψους spectantes, diss. Kiel, 1906, pp6‑19; G. C. Fiske, Lucilius and Horace, Madison, 1920, ch. 1; J. F. D'Alton, Roman Literary Theory and Criticism, London, New York, and Toronto, 1931, pp426 ff.; Richard McKeon, "Literary Criticism and the Concept of Imitation in Antiquity," Mod. Philol. 34, 1 (1936), 1‑35, and esp. pp26 ff.; D. L. Clark, "Imitation: Theory and Practice in Roman Rhetoric," Quart. Journ. Speech 37, 1 (1951), 11‑22. "Exercise" refers to the progymnasmata, of which our treatise and Cicero's De Inv. show the first traces in Latin rhetoric, and to the "suasoriae" (deliberationes) and "controversiae" (causae) in which the treatise abounds. See also 4.xliv.58 (Refining). The divorce between praeexercitamenta and exercitationes belongs to the Augustan period.

12 The author's treatment of the parts of a discourse differs from that of Aristotle, who, in Rhet. 3.13 (1414A) ff., discusses them — Proem, Statement of Facts, Proof, and Conclusion — with all three kinds of oratory in view, not only the judicial, under Arrangement. Note that Invention is applied concretely to the parts of the discourse; in 1.xi.18 ff. below the Issues are subjoined to Proof and Refutation. Cf. Cicero, De Inv. 1.xiv.19. The Stoic scheme included Proem, Statement of Facts, Replies to Opponents, and Conclusion (Diogenes Laertius 7.43).

13 πρασκευάζεται. The concept is Isocratean. Cf. Rhet. ad Alex., ch. 29 (1436A); Dionysius Halic., De Lys. 17; Anon. Seg. 5 and 9 (Spengel-Hammer 1[2].353‑4); Rufus 4 (Spengel-Hammer 1[2].399); Anon., in Rabe, Proleg. Sylloge, p62.

14 This definition is translated directly from a Greek original; see Hermogenes, Progymn. 2 (ed. Rabe, p4), Syrianus, Scholia Hermog. (ed. Rabe 2.170), Theon 4 (Spengel 2.78). Cf. Cicero, De Inv. 1.xix.27.

15 Cf. Cicero, De Inv. 1.xxiv.34.

16 Cf. Cicero, De Inv. 1.xlii.78 (reprehensio).

17 πρόλογος, probably.

18 ἔνδοξον, παράδοξον, ἀμφίδοξον, ἄδοξον, the σχήματα ὑποθέσεων, later sometimes called figurae materiarum or controversiarum. The classification is on a moral basis. These genera causarum are not to be confused with the three genera causarum treated in 1.ii.2 above. Most rhetoricians (e.g., Cicero, De Inv. 1.xv.20) treated also a fifth kind, obscurum (δυσπαρακολούθητον), and some included six kinds (see Quintilian, 4.1.40). The division into four σχήματα is Hermagorean (cf. Augustine, De Rhet. 1.17 ff., in Halm, pp147 ff.), and here our author conflates Hermagorean doctrine with the pre-Aristotelian doctrine of the Proem; see Georg Thiele, Hermagoras, Strassburg, 1893, pp113‑121.

19 προοίμιον, "Prelude"; see Aristotle, Rhet. 3.14 (1414B), Quintilian, 4.1.2 ff., Anon. Seg. 4, in Spengel-Hammer 1(2).352‑3. Cf. Cicero, De Inv. 1.xv.20.

20 ἔφοδος. The term is used in Oxyr. Pap. 3.27, in a rhetorical treatise of perhaps the beginning of the fourth century B.C. In Isaeus 3, Dionysius Halic. comments on Isaeus' use of ἔφοδοι. Cf. also Anon., in Rabe, Proleg. Syll., p206, and Anon., Proleg. Invent., in Walz 7(1).54.

21 The hearer is to be rendered προσεκτικός, εὐμαθής, εὔνους. Cf. Cicero, De Inv. 1.xvi.22‑3. The doctrine is pre-Aristotelian; see, e.g., Rhet. ad Alex., ch. 29 (1436A), and Epist. Socrat. 30.4 on Isocrates. Aristotle, Rhet. 3.14 (1415A), includes Receptiveness under Attention. Cicero, Part. Orat. 8.28, gives three aims for the Direct Opening; ut amice, ut intellegenter, ut attente audiamur. For the importance of Attention in present-day rhetoric, cf. J. A. Winans, Public Speaking, New York, 1917, p194: "Persuasion is the process of indu­cing others to give fair, favourable, or undivided attention to propositions."

22 1.vi.9 ff.

23 Cf. Rhet. ad Alex., ch. 29 (1437B): "If there is no prejudice against ourselves or our speech or our subject, we shall set forth our Proposition immediately at the beginning, appealing for attention and a benevolent hearing afterwards."

24 So Aristotle, Rhet. 3.14 (1415A), and Anon. Seg. 7 (Spengel-Hammer 1[2].353‑4): ἐκ τοῦ αὐτοῦ or τοῦ λέγοντος, ἐκ τοῦ ἐναντίου or ἀντιδίκου, ἐκ τῶν ἀκροατῶν or δικαζόντων, ἐκ τῶν πραγμάτων. Cf. also Cicero, De Inv. 1.xvi.22. Here as throughout the first two books the author is dealing with judicial oratory.

25 πάθος, here assigned to the Introduction, also has a place in the Conclusion; see 2.xxx.48‑xxxi.50 below. Thus the author accords with the early Greek rhetoric based on the divisions of the discourse. Nowhere does he make a profound analytical study of the emotions such as we find in Aristotle, Rhet., Bk. II. In Anon. Seg. 6 (Spengel-Hammer 1[2].353) are listed five emotions of the hearer which play a part in the function of the Proem: pity, anger, fear, hate, and desire.

26 ἔχθρα or μῖσος, φθόνος, ὀργή.

27 In Cicero, De Inv. 1.xvii.23, the Subtle Approach is specifically used in the admirabile genus causae. The three causae of Cicero correspond to the "occasions" classified by our author. Anon. Seg. 21 ff. (Spengel-Hammer 1[2].357 ff.) gives four occasions on which the Prooemion should be dispensed with, and discusses the view that it must always be used.

28 Cf. Cicero, De Inv. 1.xvii.24.

29 παραφθέγγεσθαι.

30 Cf. Cicero, De Inv. 1.xvii.25.

31 See 4.xxix.40 below.

32 Note that humour enters the rhetorical system under the Introduction. Aristotle, Rhet. 3.14 (1415A), also discusses the place of laughter in the Proem. This classification of eighteen means of provoking laughter must have been a recent accession to rhetorical theory; cf. the summary in Cicero, De Oratore 2.61.248 ff. On wit and humour in ancient rhetoric, see E. Arndt, De ridiculi doctrina rhetorica, Bonn, 1904; Mary A. Grant, The Ancient Rhetorical Theories of the Laughable, Madison, 1924; and Wilhelm Kroll in P.‑W., art "Rhetorik," coll. 1076‑7. Cf. also Wilhelm Süss, Neue Jahrb. 23 (1920), 28‑45.

33 Of the adversary's argument, perhaps.

34 παρὰ προσδοκίαν.

35 λαθραίως δι’ ἑτέρων λόγων. Anon., Proleg. Invent., in Walz 7(1).54.14‑16, gives the same precept.

36 Anon. Seg. 19 (Spengel-Hammer 1[2].356) makes the same point.

37 Cf. Cicero, De Inv. 1.xviii.26.

38 διήγησις. Cf. Cicero, De Inv. 1.xix.27.

39 διηγήσεις ἐπὶ κριτῶν λεγόμεναι.

40 διαβολή.

41 Incidental Narrative (παραδιήγησις); cf. Quintilian, 9.2.107, and Anon. Seg. 61 (Spengel-Hammer 1[2].364‑5), who distinguishes it from Digression (παρέκβασις).

42 διηγήσεις καθ’ ἑαυτάς.

43 The reference is to the progymnasmata (praeexercitamenta). Narratio provided the first exercises imposed by the rhetor; see Quintilian, 2.4.1, and Jean Cousin, Études sur Quintilien, Paris, 1936, 1.113.

44 According to τὰ πράγματα or τὰ πρόσωπα.

45 μῦθος, but see Cousin, op. cit., 1.113, note 4. Cf. Aristotle, Poetics 9 (1451A): "The poet's function is to describe, not the things that actually have happened, but the kind of things that might well happen — that are possible in the sense of being either probable or inevitable." But it is doubtless the miraculous element in tragedies that is here in mind; see the example of fabula in Cicero, De Inv. 1.xix.27.

46 ἱστορία.

47 πλάσμα. Cf. argumentum (Presumptive Proof) in 2.ii.3, and argumentatio (argument) in 2.ii.2 below.

48 Cf. the figure notatio (Character Delineation), 4.l.63 below.

49 Cf. Cicero, Epist. ad Fam. 51.2.4, on writing history: "For nothing is so suited to the delight of the reader as are shifting circumstances and the vicissitudes of fortune." Concerning our author's doctrine of narratio as reflecting Hellenistic ideas on historiography and story writing, see R. Reitzenstein, Hellenistische Wundererzählungen, Leipzig, 1906, pp84 ff., and for further interpretations of these sections dealing with narratio (and of Cicero, De Inv. 1.xix.27), Karl Barwick, Hermes 63, 3 (1928), 261‑87, and Friedrich Pfister, Hermes 68, 4 (1933), 457‑60.

50 The narratio is developed (tractatio = ἐξεργασία) in the progymnasmata.

51 συντομία, σαφήνεια, πιθανότης. The precept is Isocratean (see Quintilian, 4.2.31‑2) or even older (see Octave Navarre, Essai sur la rhétorique grecque avant Aristote, Paris, 1900, p246). Aristotle, Rhet. 3.16 (1416B), scorns the injunction of brevity in favour of the "proper mean." Cf. Cicero, De Inv. 1.xx.28.

52 Presented κεφαλαιωδῶς, not μερικῶς.

53 Doxapatres (eleventh century), in Walz 2.230, gives the same example; it is doubtless Greek in origin.

54 The author of these iambic trimeters and the name of the comedy from which they come are both unknown. Cf. Plautus, Miles Gloriosus 439: quae heri Athenis Ephesum adveni vesperi.

55 Cf. Cicero, De Inv. 1.xx.29.

56 ὑπερβατῶς, in inverted order.

57 In 1.ix.14 above.

58 Cf. Cicero, De Inv. 1.xxi.29‑30.

59 See note on 1.vi.9 above. Our author's doctrine of the Subtle Approach is Greek in origin, although we know no specific Greek source for the three occasions. That Cicero in De Inv. presents a like classification makes our author's claim difficult to explain; see the Introduction to the present volume, pp. xxix‑xxx.

60 "Outlining of the case," the Analysis. προκατασκευή, a combination of προέκθεσις and μερισμός. In Cicero, De Inv. 1.xxii.31‑xxiii.33, partitio. Cf. the figure divisio, 4.xl.52 below.

61 Martianus Capella, 5.556, makes the same point for the partitio.

62 A favourite theme of the rhetoricians; cf. also 1.xv.25 and 1.xvi.26 below, Cicero, De Inv. 1.xiii.18‑xiv.19, 1.xxii.31, Quintilian, 3.11.4 ff., 3.5.11, 7.4.8.

63 Cf. the figure distributio, 4.xxxv.47, and distributio, the Broken Tone of Debate, 3.xiii.23 below.

64 Cf. the enumeratio (Summing Up) of 2.xxx.47 below. Quintilian, 4.5.24, praises Hortensius for the great pains he took with his Partitions, "although Cicero often lightly mocks him for counting his points on his fingers."

65 ἔκθεσις. Cf. the expositio (Proposition of an argument) in 2.xx.32, and note on 2.xviii.28 below.

66 Cf. Cicero, Brutus 60.217 on Curio: "His memory was so altogether wanting that at times when he had announced three points he would add a fourth or miss the third."

67 See note on 4.vii.10 below.

68 πίστις, κατασκευὴ κεφαλαίων.

69 ἀνασκευή. In the Rhet. ad Alex., ch. 7 (1428A), Refutation is considered as one of seven subheads under Proof; see also ch. 13 (1431A).

70 I follow the practice, perhaps begun by Thomas Wilson, Arte of Rhetorique (first ed. 1553), ed. G. H. Mair, Oxford, 1910, p89, of translating constitutio (or status [= στάσις], the term used by Cicero, except in De Inv., and by most other rhetoricians) as "Issue." The constitutio (= σύστασις, most probably; see S. F. Bonner, Class. Rev. 61 [1947], 84‑6) is the conjoining of two conflicting statements, thus forming the centre of the argument and determining the character of the case; for a study of the meaning of status; and of constitutio see A. O. L. Dieter, Speech Monographs 17, 4 (1950), 345‑69. Our author makes use of the status system only for judicial oratory, the examples being drawn from both criminal and civil causes. Adumbrated in pre-Aristotelian rhetoric (where it was close to Attic procedure), as well as in Aristotle's Rhetoric, it was developed principally by Hermagoras. Stoic and Aristotelian dialectic exerted an influence in its evolution. The terminology and Roman examples show that our author assimilated the Greek theory. His system differs considerably from that of Hermagoras; see Kroehnert, pp21 ff.; Hermann Netzker, Hermagoras, Cicero, Cornificius quae docuerint de "statibus", Kiel diss., 1879, and "Die constitutio legitima des Cornificius," Neue Jahrbücher 133 (1886), 411‑16; Heinrich Weber, Ueber die Quellen der Rhet. ad Her. des Cornificius, Zurich diss., 1886; Thiele, Hermagoras; Walter Jaeneke, De statuum doctrina ab Hermogene tradita, Leipzig, 1904; Claus Peters, De rationibus inter artem rhetoricam quarti et primi saeculi intercedentibus, Kiel diss., 1907, pp10 ff.; Kroll in P.‑W., art. "Rhetorik," coll. 1090‑5. Cicero's system in De Inv. 1.viii.10 ff. differs from that of our author. Cf. Quintilian, 3.6.1 ff. Most critics see our author as a follower of Marcus Antonius in his system of status cf. Quintilian, 3.6.45 ff. (note that legalis, not legitimus is the term used for the "Legal" Issue by the followers of Antonius), and Kroehnert, loc. cit. Modern students of Roman Law for the most part think that from the juristic point of view, as against the rhetorical, the status system was over-intricate and impractical; see note on 2.xiii.19 below.

71 Hermagoras taught four Types of Issue; see note on Transference, 1.xi.19, below.

72 See Introduction, pp. xxi ff., esp. p. xxiii.

73 For the spelling iuridicalis see Stroebel, Tulliana, p20.

74 στοχασμός. Cf. Cicero, De Inv. 1.viii.11.

75 See the progymnasma in 2.xviii.28‑xix.30 below. Resenting the award of the arms of Achilles to Ulysses, Ajax goes mad and slaughters a flock of sheep, thinking them his enemies. Cf. Hermogenes, De Stat. 3 (ed. Rabe, pp49 and 54): A man is discovered burying in a lonely place the body of a person recently slain, and is charged with murder; Fortunatianus 1.6 (Halm, p85) and 1.8 (Halm, p87).

76 στάσις νομική. Cf. Cicero, De Inv. 1.xiii.17.

77 στάσις κατὰ ῥητὸν καὶ διάνοιαν. Cf. the sententia (Maxim) of 4.xvii.24 below.

78 ἀντινομία.

79 ἀμφιβολία.

80 ὅρος.

81 μετάληψις. Procedural in nature. Cf. translatio criminis, 1.xiv.24, and the figure translatio, 4.xxxiv.45 below. Hermagoras was the first to enter this among the Types of Issue; see Cicero, De Inv. 1.xi.16, and Quintilian, 3.6.60.

82 συλλογισμός.

83 This controversia is of Greek origin; cf. Hermogenes, De Stat. 2 (ed. Rabe, p41), Fortunatianus 1.26 (Halm, pp100 f.) and Cicero, De Inv. 2.li.153.

84 On the importance of this type of rhetorical discussion for juristic theory see note on 2.xiii.19 below.

85 Doubtless the law of C. Servilius Glaucia de pecuniis repetundis (111 B.C.).

86 The law of Cn. Domitius Ahenobarbus de sacerdotiis passed in 104 B.C. and repealed by Sulla in (?) 81 B.C., is here indicated.

87 When specifically the case came up we do not know; Marx, Proleg., p108, conjectures c. 100 B.C.

88 Cf. Cicero, De Inv. 2.xl.116; Lucilius 16.552‑3.

89 At the Comitia; over these the voters passed in single file to the saepta in the Campus Martius to deposit their votes.

90 Probably in his second tribunate in 100 B.C., L. Appuleius Saturninus proposed his law fixing the fee for grain at five-sixths of an as (for a modius); the lex Sempronia frumentaria of 123 had set the price at almost eight times that amount. It is uncertain whether the bill passed. Caepio was in 99 B.C. charged with treason, but was acquitted. Cf. 2.xii.17 (the supposed defence by Caepio), and for Saturninus 4.xxii.31 and 4.liv.67. This Q. Servilius Caepio was the son of the Q. Servilius Caepio referred to in 1.xiv.24 below.

91 Literally, what constitutes "impairing the sovereign majesty" of the state. Cf. 2.xii.17 and 4.xxv.35 below. The crimen maiestatis minutae was invented probably in 103 B.C.; the Lex Appuleia de maiestate attempted to define the offence. See Hugh Last, Camb. Anc. History 9.160‑1. Cf. Antonius on the trial of Norbanus (95 B.C.) in Cicero, De Oratore 2.25.107 ff., 2.39.164.

92 Anglo-American procedure has no specific analogue to the term translatio as here defined, nor indeed was this status suited to Roman juristic procedure. See Theodor Schwalbach, Zeitschr. der Savigny-Stiftung für Rechtsgeschichte, Romanist. Abt., 2 (1881), 209‑32; Moriz Wlassak, Der Ursprung der römischen Einrede (Festschr. Leopold Pfaff, Vienna, 1910, pp12 ff.; and Artur Steinwenter, Sav. Zeitschr. 65 (1947), 69‑120, esp. p81, and pp104‑5. Note also raro venit in iudicium below.

93 The Romans in the preliminary proceedings before the magistrate, where the issue is defined; the Greeks in the actual trial before the judge.

94 Despite the alteration, the source of this controversia may originally have been Aristotle, Rhet. 1.13 (1374A): "It often happens that a man may admit . . . theft, but not that the act was sacrilege (on the ground that the thing stolen was not the property of a god)." Cf. Cicero, De Inv. 1.viii.11; Quintilian, 3.6.41 and 5.10.39; Hermogenes, De Stat. 2 (ed. Rabe, p37) and 4 (ed. Rabe, p62); Sopater, in Walz 8.102‑5; also Rabe, Proleg. Syll., pp218, 253, and 336. On peculatus publicus see Mommsen, pp764 ff.

95 Cf. Victorinus, in Halm, p276.

96 These counterpleas accepted by the praetor allege new states of fact or of law; although the defendant accepts the intentio in the plaintiff's formula, he urges the praetor to permit the insertion of an exceptio in the formula. See A. H. J. Greenidge, The Legal Procedure of Cicero's Time, Oxford, 1901, pp178‑181, 229‑235; E. Rabel, Sav. Zeitschr. 32 (1911), 413‑23; Leopold Wenger, Institutes of the Roman Law of Civil Procedure, tr. O. H. Fisk, New York, 1940, pp155 ff. Cf. Cicero, De Inv. 1.vii.10 and 2.xix.57‑xx.61. Cicero in De Inv. (2.xix.57) and our author supply the first references to the exceptio in extant literature. See Friedrich von Velsen, Sav. Zeitschr. 21 (1900), 104‑5.

97 Twelve Tables 5.7a.

98 Marx (Proleg., p107; see also R. Reitzenstein, Gnomon 5 [1929], 605‑6) affirms, and Mommsen (p643, note 6) denies, the genuineness of this law; it is omitted in Cicero, De Inv. 2.l.148.

99 Twelve Tables 5.3.

100 Cf. Twelve Tables 5.4‑5.

101 Cf. Cicero, De Inv. 2.l.149, and on this (ritualistic) form of punishment Mommsen, pp921‑3; Alfred Pernice, Sav. Zeitschr. 17 (1896), 210 ff.; Max Radin, Journ. Rom. Studies 10 (1920), 119‑30; Rudolf Düll, Atti del Congr. Internaz. di Diritto Rom. (Roma), Pavia, 1935, 2.363‑408. According to Livy, Periochae 68, Malleolus was the first (101 B.C.) to suffer this punishment.

102 στάσις δικαιολογική. Cf. Cicero, De Inv. 1.xi.15, 2.xxiii.69 ff.

103 κατ’ ἀντίληψιν.

104 κατ’ ἀντίθεσιν.

105 The mime was condemned; see 2.xiii.19 below. This type of controversia is Greek in origin; cf. Hermogenes, De Stat. 11, ed. Rabe, pp88‑9 (but belonging to the subtype of Legal Issue based on Analogy; see 1.xiii.23 above), and Sopater, in Walz 8.383‑4. See also Sulpitius Victor 39, in Halm, p337.

106 συγγνώμη.

107 μετάστασις.

108 ἀντέγκλημα.

109 ἀντίστασις.

110 Cf. 2.xvi.23 and 2.xxvii.43 below, and Cicero, De Inv. 1.xi.15.

111 κάθαρσις.

112 παραίτησις.

113 ἐκ προνοίας. Voluntary acts = τὰ ἑκούσια, involuntary = τὰ ἀκούσια.

114 ἄγνοια.

115 τύχη, ἀτυχία, ἀτύχημα.

116 ἄνάγκη, βία.

117 In 105 B.C., Q. Servilius Caepio, through his failure to coöperate with his colleague Mallius, brought upon the army a disastrous defeat at Arausio at the hands of the Cimbri, Teutones, and their allies. Caepio's proconsular imperium was abrogated, and by the motion of the tribunus plebis, L. Cassius Longinus, he lost senatorial rank (104 B.C.). Cicero, Brutus 35.135, says of Caepio that the fortunes of war were imputed to him as a crime.

118 Manumitted, the slave was answerable for his crime to the courts, and not subject to domestic punishment. The controversia is doubtless Greek in origin. Cf. Quintilian, 7.4.14.

119 The controversia is Greek in origin; the like situation is presented in De Inv. 2.xxxi.96. Cf. Quintilian, 7.4.14.

120 Cf. Cicero, De Inv. 2.xxxiv.104.

121 The court was obliged to render a verdict strictly on the law, and could not lessen the punishment. See also Quintilian, 5.13.5 and 7.4.17 ff.

122 Especially that of a magistrate; cf. Mommsen, pp149 f. and note 5, and Wenger, Institutes of the Roman Law of Civil Procedure, p32.

123 Cf. 1.x.17 above, and 1.xvi.26 below.

124 P. Sulpicius Rufus was among those proscribed by Sulla in 88 B.C. Pursued by Sulla's horsemen, he took refuge in a villa at Laurentum, where he was betrayed by a slave and murdered. His head was exhibited on the rostra. The slave was set free by Sulla's orders and then hurled down the Tarpeian Rock. Cf. Appian, Bell. Civil. 1.7.60: "[Sulpicius and others] had been voted enemies of Rome, and anyone who came upon them had been authorized to kill them with impunity or to bring them before the consuls [Cornelius Sulla and Quintus Pompeius]." Velleius Paterculus, 2.19, says that Sulpicius and his followers were declared exiles by formal decree (lege lata). It was forbidden to bury Sulpicius' body; see 4.xxii.31 below. If this controversia was not merely a school exercise, and the murderer was actually called to account, that may have been in the year 87, when Sulpicius' party again came into power. See the notes on 4.xiv.20, xxiv.33, xxviii.38, xxxiv.45, lii.65, and also 2.xxviii.45.

125 Cf. Cicero, De Inv. 2.xxiv.72. According to the historians, after L. Cassius Longinus in the war against the Cimbri and their allies fell (in 107 B.C.) at the hands of the Tigurini in Gaul, C. Popilius Laenas, legate, made a pact: the Roman survivors would, in return for hostages and half of their possessions, leave in safety. The Roman band went under the yoke of the Tigurini.​ No mention is here made of the hostages nor of passing under the yoke, nor does the amount of the baggage agree precisely with that in the historical accounts. The charge of treason was made in 106 by the tribune C. Caelius Caldus; a fragment of the defence appears in 4.xxiv.34 below. Popilius went into exile, but perhaps after a later trial under Saturninus' law of treason of 103 B.C.

126 Ratio = τὸ συνέχον, firmamentum = τὸ αἴτιον. Cicero misconstrued firmamentum in De Inv. 1.xiv.19; cf. Part. Orat. 29.103, Quintilian, 3.11.19, Volkmann, pp100‑108, Thiele, Hermagoras, pp67‑78, Jaeneke, De statuum doctrina ab Hermogene tradita, p111.

127 Cf. 1.x.17 and 1.xv.25 above.

128 Cf. in Aristotle, Rhet. 2.23 (1397AB), the third of the 28 topoi from which to draw enthymemes, the topos from correlative terms: "And if 'well' or 'justly' is true of the person to whom a thing is done, you may argue that it is true of the doer. But here the argument may be fallacious; for, granting that the man deserved what he got, it does not follow that he deserved it from you" (tr. Lane Cooper), and in 2.24 (1401B), the fallacy of omission illustrated by the argument in Theodectes' Orestes. For the argument as used in other Greek tragedies, cf. Tyndareüs in Euripides, Orestes 538‑9: "My daughter, dying, paid her debt to justice, but that she died at his hand was not meet," and Castor, addressing Orestes in Electra 1244: "Your mother now has but justice, but your deed is not just."

129 κρινόμενον, Hermagorean doctrine.

130 Cf. Cicero, De Inv. 1.xiv.19.

131 κατάφασις.

132 ἀπόφασις.
