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Rhetorica Ad Herennium
On the Theory of Public Speaking
Book I (17 Chapters, 27 Sections, 132 Footnotes)
Chapter I.
Sect. 1 My private affairs keep me so busy that I can hardly find enough leisure to devote to studies, and the little that is vouchsafed to me I have usually preferred to spend on philosophy. Yet your desire, Gaius Herennius, has spurred me to compose a work on the Theory of Public Speaking, lest you should suppose that in a matter which concerns you I either lacked the will or shirked the labour. And I have undertaken this project the more gladly because I knew that you had good grounds in wishing to learn rhetoric, for it is true that copiousness and facility in expression bear abundant fruit, if controlled by proper knowledge and a strict discipline of the mind.
That is why I have omitted to treat those topics which, for the sake of futile self-assertion, Greek writers​1 have adopted. For they, from fear of appearing to know too little, have gone in quest of notions irrelevant to the art, in order that the art might seem more difficult to understand. I, on the other hand, have treated those topics which seemed pertinent to the theory of public speaking. I have not been moved by hope of gain​2 or desire for glory, as the rest have been, in undertaking to write, but have done so in order that, by my painstaking work, I may gratify your wish. To avoid prolixity, I shall now begin my discussion of the subject, as soon as I have given you this one injunction: Theory without continuous practice in speaking is of little avail; from this you may understand that the precepts of theory offered ought to be applied in practice.
Chapter II.
Sect. 2 The task of the public speaker is to discuss capably those matters which law and custom have fixed for the uses of citizen­ship, and to secure as far as possible the agreement of his hearers.​3 There are three kinds​4 of causes which the speaker must treat: Epideictic, Deliberative, and Judicial.​5 The epideictic kind is devoted to the praise or censure of some particular person. The deliberative consists in the discussion of policy and embraces persuasion and dissuasion.​6 The judicial is based on legal controversy, and comprises criminal prosecution or civil suit, and defence.7
Now I shall explain what faculties the speaker should possess, and then show the proper means of treating these causes.8
Sect. 3 The speaker, then, should possess the faculties of Invention, Arrangement, Style, Memory, and Delivery.​9 Invention is the devising of matter, true or plausible, that would make the case convincing.​10 Arrangement is the ordering and distribution of the matter, making clear the place to which each thing is to be assigned. Style is the adaptation of suitable words and sentences to the matter devised. Memory is the firm retention in the mind of the matter, words, and arrangement. Delivery is the graceful regulation of voice, countenance, and gesture.
All these faculties we can acquire by three means: Theory, Imitation, and Practice.​11 By theory is meant a set of rules that provide a definite method and system of speaking. Imitation stimulates us to attain, in accordance with a studied method, the effectiveness of certain models in speaking. Practice is assiduous exercise and experience in speaking.
Since, then, I have shown what causes the speaker should treat and what kinds of competence he should possess, it seems that I now need to indicate how the speech can be adapted to the theory of the speaker's function.
Chapter III.
Sect. 4 Invention is used for the six parts of a discourse: the Introduction, Statement of Facts, Division, Proof, Refutation, and Conclusion.​12 The Introduction is the beginning of the discourse, and by it the hearer's mind is prepared​13 for attention. The Narration or Statement of Facts sets forth the events that have occurred or might have occurred.​14 By means of the Division we make clear what matters are agreed upon and what are contested, and announce what points we intend to take up. Proof is the presentation of our arguments, together with their corroboration.​15 Refutation is the destruction of our adversaries' arguments.​16 The Conclusion is the end of the discourse, formed in accordance with the principles of the art.
Along with the speaker's functions, in order to make the subject easier to understand, I have been led also to discuss the parts of a discourse, and to adapt these to the theory of Invention. It seems, then, that I must at this juncture first discuss the Introduction.17
Sect. 5 Given the cause, in order to be able to make a more appropriate Introduction, we must consider what kind of cause it is. The kinds of causes are four: honourable, discreditable, doubtful, and petty.​18 A cause is regarded as of the honourable kind when we either defend what seems to deserve defence by all men, or attack what all men seem in duty bound of the attack; for example, when we defend a hero, or prosecute a parricide. A cause is understood to be of the discreditable kind when something honourable is under attack or when something discreditable is being defended. A cause is of the doubtful kind when it is partly honourable and partly discreditable. A cause is of the petty kind when the matter brought up is considered unimportant.
Chapter IV.
Sect. 6 In view of these considerations, it will be in point to apply the theory of Introductions to the kind of cause. There are two kinds of Introduction: the Direct Opening, in Greek called the Proimion,19 and the Subtle Approach, called the Ephodos.​20 The Direct Opening straightway prepares the hearer to attend to our speech. Its purpose is to enable us to have hearers who are attentive, receptive, and well-disposed.​21 If our cause is of the doubtful kind, we shall build the Direct Opening upon goodwill, so that the discreditable part of the cause cannot be prejudicial to us. If our cause is of the petty kind, we shall make our hearers attentive. If our cause is of the discreditable kind, unless we have hit upon a means of capturing goodwill by attacking our adversaries, we must use the Subtle Approach, which I shall discuss later.​22 And finally, if our cause is of the honourable kind, it will be correct either to use the Direct Opening or not to use it.​23 If we wish to use it, we must show why the cause is honourable, or else briefly discuss what matters we are going to discuss. But if we do not wish to use the Direct Opening, we must begin our speech with a law, a written document, or some argument supporting our cause.
Sect. 7 Since, then, we wish to have our hearer receptive, well-disposed, and attentive, I shall disclose how each state can be brought about. We can have receptive hearers if we briefly summarise the cause and make them attentive; for the receptive hearer is one who is willing to listen attentively. We shall have attentive hearers by promising to discuss important, new, and unusual matters, or such as appertain to the commonwealth, or to the hearers themselves, or to the worship of the immortal gods; by bidding them listen attentively; and by enumerating the points we are going to discuss. Sect. 8 We can by four methods make our hearers well-disposed: by discussing our own person, the person of our adversaries, that of our hearers, and the facts themselves.24
Chapter V.
From the discussion of our own person we shall secure goodwill by praising our services without arrogance and revealing also our past conduct toward the republic, or toward our parents, friends, or the audience, and by making some reference to . . . provided that all such references are pertinent to the matter in question; likewise by setting forth our disabilities, need, loneliness, and misfortune,​25 and pleading for our hearers' aid, and at the same time showing that we have been unwilling to place our hope in anyone else.
From the discussion of the person of our adversaries we shall secure goodwill by bringing them into hatred, unpopularity, or contempt.​26 We shall force hatred upon them by addu­cing some base, high-handed, treacherous, cruel, impudent, malicious, or shameful act of theirs. We shall make our adversaries unpopular by setting forth their violent behaviour, their dominance, factiousness, wealth, lack of self-restraint, high birth, clients, hospitality, club allegiance, or marriage alliances, and by making clear that they rely more upon these supports than upon the truth. We shall bring our adversaries into contempt by presenting their idleness, cowardice, sloth, and luxurious habits.
From the discussion of the person of our hearers goodwill is secured if we set forth the courage, wisdom, humanity, and nobility of past judgements they have rendered, and if we reveal what esteem they enjoy and with what interest their decision is awaited.
From the discussion of the facts themselves we shall render the hearer well-disposed by extolling our own cause with praise and by contemptuously disparaging that of our adversaries.
Chapter VI.
Sect. 9 Now I must explain the Subtle Approach.​27 There are three occasions on which we cannot use the Direct Opening, and these we must consider carefully: (1) when our cause is discreditable, that is, when the subject itself alienates the hearer from us; (2) when the hearer has apparently been won over by the previous speakers of the opposition; (3) or when the hearer has become wearied by listening to the previous speakers.
If the cause has a discreditable character,​28 we can make our Introduction with the following points: that the agent, not the action, ought to be considered; that we ourselves are displeased with the acts which our opponents say have been committed, and that these are unworthy, yes, heinous. Next, when we have for a time enlarged upon this idea, we shall show that nothing of the kind has been committed by us. Or we shall set forth the judgement rendered by others in an analogous case, whether that cause be of equal, or less, or greater importance; then we shall gradually approach our own cause and establish the analogy. The same result is achieved if we deny an intention to discuss our opponents or some extraneous matter and yet, by subtly inserting the words,​29 do so.
Sect. 10 If the hearers have been convinced,​30 if our opponent's speech has gained their credence — and this will not be hard for us to know, since we are well aware of the means by which belief is ordinarily effected — if, then, we think belief has been effected, we shall make our Subtle Approach to the cause by the following means: the point which our adversaries have regarded as their strongest support we shall promise to discuss first; we shall begin with a statement made by the opponent, and particularly with that which he has made last; and we shall use Indecision,​31 along with an exclamation of astonishment: "What had I best say?" or "To what point shall I first reply?"
If the hearers have been fatigued by listening, we shall open with something that may provoke laughter​32 — a fable, a plausible fiction, a caricature, an ironical inversion on the meaning of a word, an ambiguity, innuendo, banter, a naïvety, an exaggeration, a recapitulation,​33 a pun, an unexpected turn,​34 a comparison, a novel tale, a historical anecdote, a verse, or a challenge or a smile of approbation directed at some one. Or we shall promise to speak otherwise than as we have prepared, and not to talk as others usually do; we shall briefly explain what the other speakers do and what we intend to do.
Chapter VII.
Sect. 11 Between the Subtle Approach and the Direct Opening there is the following difference. The Direct Opening should be such that by the straightforward methods I have prescribed we immediately make the hearer well-disposed or attentive or receptive; whereas the Subtle Approach should be such that we effect all these results covertly, through dissimulation,​35 and so can arrive at the same vantage-point in the task of speaking. But though this three-fold advantage — that the hearers constantly show themselves attentive, receptive, and well-disposed to us — is to be secured throughout the discourse, it must in the main be won by the Introduction to the cause.
Now, for fear that we may at some time use a faulty Introduction, I shall show what faults must be avoided. In the Introduction of a cause we must make sure that our style is temperate and that the words are in current use,​36 so that the discourse seems unprepared. An Introduction is faulty if it can be applied as well to a number of causes;​37 that is called a banal Introduction. Again, an Introduction which the adversary can use no less well is faulty, and that is called a common Introduction. That Introduction, again, is faulty which the opponent can turn to his own use against you. And again that is faulty which has been composed in too laboured a style, or is too long; and that which does not appear to have grown out of the cause itself in such a way as to have an intimate connection with the Statement of Facts; and, finally, that which fails to make the hearer well-disposed or receptive or attentive.
Chapter VIII.
Concerning the Introduction I have said enough; next let me turn to the Narration or Statement of Facts. Sect. 12 There are three types of Statement of Facts.​38 It is one type when we set forth the facts and turn every detail to our advantage so as to win the victory, and this kind appertains to the causes on which a decision is to be rendered.​39 There is a second type which often enters into a speech as a means of winning belief or incriminating our adversary​40 or effecting a transition or setting the stage for something.​41 The third type​42 is not used in a cause actually pleaded in court, yet affords us convenient practice​43 for handling the first two types more advantageously in actual cases. Sect. 13 Of such narratives there are two kinds: one based on the facts, the other on the persons.44
The kind of narrative based on the exposition of the facts presents three forms: legendary, historical, and realistic. The legendary tale comprises events neither true nor probable, like those transmitted by tragedies.​45 The historical narrative is an account of exploits actually performed, but removed in time from the recollection of our age.​46 Realistic narrative recounts imaginary events, which yet could have occurred, like the plots of comedies.47
A narrative based on the persons should present a lively style and diverse traits of character,​48 such as austerity and gentleness, hope and fear, distrust and desire, hypocrisy and compassion, and the vicissitudes of life, such as reversal of fortune,​49 unexpected disaster, sudden joy, and a happy outcome. But it is in practice exercises that these types will be worked out.​50 How we should handle that type of Statement of Facts which belongs in actual causes I am about to explain.
Chapter IX.
Sect. 14 A Statement of Facts should have three qualities: brevity, clarity, and plausibility.​51 Since we know that these qualities are essential, we must learn how to achieve them.
We shall be able to make the Statement of Facts brief if we begin it at the place at which we need to begin; if we do not try to recount from the remotest beginning; if our Statement of Facts is summary and not detailed;​52 if we carry it forward, not to the furthermost point, but to the point to which we need to go; if we use no digressions and do not wander from the account we have undertaken to set forth; and if we present the outcome in such a way that the facts that have preceded can also be known, although we have not spoken of them. For example, if I should say that I have returned from the province, it would also be understood that I had gone to the province.​53 And in general it is better to pass by not only that which weakens the cause but also that which neither weakens nor helps it. Furthermore, we must guard against repeating immediately what we have said already, as in the following: "Simo came from Athens to Megara in the evening; when he came to Megara, he laid a trap for the maiden: after laying the trap he ravished her then and there."54
Sect. 15 Our Statement of Facts will be clear​55 if we set forth the facts in the precise order in which they occurred, observing their actual or probable sequence and chronology. Here we must see that our language is not confused,​56 involved, or unfamiliar, that we do not shift to another subject, that we do not trace the affair back to its remotest beginning, nor carry it too far forward, and that we do not omit anything pertinent. And our Statement of Facts will be clear if we follow the precepts on brevity that I have laid down,​57 for the shorter the Statement of Facts, the clearer will it be and the easier to follow.
Sect. 16 Our Statement of Facts will have plausibility​58 if it answer the requirements of the usual, the expected, and the natural; if account is strictly kept of the length of time, the standing of the persons involved, the motives in the planning, and the advantages offered by the scene of action, so as to obviate the argument in refutation that the time was too short, or that there was no motive, or that the place was unsuitable, or that the persons themselves could not have acted or been treated so. If the matter is true, all these precautions must none the less be observed in the Statement of Facts, for often the truth cannot gain credence otherwise. And if the matter is fictitious, these measures will have to be observed all the more scrupulously. Fabrication must be circumspect in those matters in which official documents or some person's unimpeachable guaranty will prove to have played a rôle.
In what I have thus far said I believe that I agree with the other writers on the art of rhetoric except for the innovations I have devised on Introductions by the Subtle Approach. I alone,​59 in contrast with the rest, have distinguished three occasions for the Subtle Approach, so as to provide us with a thoroughly sure method and a lucid theory of Introductions. Chapter X. Now as to the rest, since I must discuss the finding of arguments, a matter that makes unique demands upon the art of the speaker, I shall endeavour to exhibit an industry in research such as the importance of the subject demands — as soon as I have prefixed a few remarks on the Division of the cause.
Sect. 17 The Division​60 of the cause falls into two parts. When The Statement of Facts has been brought to an end, we ought first to make clear what we and our opponents agree upon, if there is agreement on the points useful to us,​61 and what remains contested, as follows: "Orestes killed his mother;​62 on that I agree with my opponents. But did he have the right to commit the deed, and was he justified in committing it? That is in dispute." Likewise in reply: "They admit that Agamemnon was killed by Clytemnestra; yet despite this they say that I ought not to have avenged my father."
Then, when we have done this, we should use the Distribution.​63 The Distribution has two parts: the Enumeration​64 and the Exposition.​65 We shall be using the Enumeration when we tell by number how many points we are going to discuss. The number ought not to exceed three; for otherwise, besides the danger that we may at some time include in the speech more or fewer points than we enumerated,​66 it instils in the hearer the suspicion of premeditation and artifice,​67 and this robs the speech of conviction. The Exposition consists in setting forth, briefly and completely, the points we intend to discuss.
Sect. 18 Now let me pass to Proof​68 and Refutation.​69 The entire hope of victory and entire method of persuasion rest on proof and refutation, for when we have submitted our arguments and destroyed those of the opposition, we have, of course, completely fulfilled the speaker's function. Chapter XI. We shall, then, be enabled to do both if we know the Type of Issue​70 which the cause presents. Others make these Types of Issue four.​71 My teacher​72 thought that there were three, and intending thereby to subtract any of the types they had discovered, but to demonstrate that one type which they should have taught as single and uncompounded they had divided into with distinct and separate types. The Issue is determined by the joining of the primary plea of the defence with the charge of the plaintiff. The Types of Issue are then, as I have said above, three: Conjectural, Legal, and Juridical.73
The Issue is Conjectural​74 when the controversy concerns a question of fact, as follows: In the forest Ajax, after realizing what in his madness he had done, fell on his sword. Ulysses appears, perceives that Ajax is dead, draws the bloody weapon from corpse. Teucer appears, sees his brother dead, and his brother's enemy with bloody sword in hand. He accuses Ulysses of a capital crime. Here the truth is sought by conjecture. The controversy will concern the fact.​75 And that is why the Issue in the cause is called Conjectural.
Sect. 19 The Issue is Legal​76 when some controversy turns upon the letter of a text or arises from an implication therein. A Legal Issue is divided into six subtypes: Letter and Spirit,​77 Conflicting Laws,​78 Ambiguity,​79 Definition,​80 Transference,​81 and Reasoning from Analogy.82
A controversy from Letter and Spirit arises when the framer's intention appears to be at variance with the letter of the text, as follows: Suppose a law which decrees that whoever have abandoned their ship in a storm shall lose all rights of title, and that their ship, if saved, and cargo as well, belong to those who have remained on board. Terrified by the storm's violence, all deserted the ship and took to the boat — all except one sick man who, on account of his illness, could not leave the ship and escape. By sheer chance the ship was driven safely to harbour. The invalid has come into possession of the ship, and the former owner claims it.​83 Here is a Legal Issue based on Letter and Spirit.84
Sect. 20 Controversy results from Conflicting Laws when one law orders or permits a deed while another forbids it, as follows: A law forbids one who has been convicted of extortion to speak before the Assembly.​85 Another law commands the augur to designate in the Assembly the candidate for the place of a deceased augur.​86 A certain augur convicted of extortion has designated the candidate for the place of a deceased augur. A penalty is demanded of him.​87 Here is a Legal Issue established from Conflicting Laws.
Chapter XII.
A controversy is created by Ambiguity when a text presents two or more meanings, as follows: The father of a family, when making his son his heir, in his will bequeathed silver vessels to his wife: "Let my heir give my wife thirty pounds' weight of silver vessels, 'such as shall be selected'." After his death the widow asks for some precious vessels of magnificent relief-work. The son contends that he owes her thirty pounds' weight of vessels "such as shall be selected" by him.​88 Here is a Legal Issue established from Ambiguity.
Sect. 21 A cause rests on Definition when the name by which an act should be called is in controversy. The following is an example: When Lucius Saturninus was about to introduce the grain law concerning the five-sixths as, Quintus Caepio, who was city quaestor during that time, explained to the Senate that the treasury could not endure so great a largess. The Senate decreed that if Saturninus should propose that law before the people he would appear to be doing so against the common weal. Saturninus proceeded with his motion. His colleagues interposed a veto; nevertheless he brought the lot-urn down for the vote. Caepio, when he sees Saturninus presenting his motion against the public welfare despite his colleagues' veto, attacks him with the assistance of some Conservatives, destroys the bridges,​89 throws down the ballot boxes, and blocks further action on the motion. Caepio is brought to trial for treason.​90 The Issue is Legal, and is established from Definition, for we are defining the actual term when we investigate what constitute treason.91
Sect. 22 A controversy is based on Transference when the defendant maintains that there must be a postponement of time or a change of plaintiff or judges.​92 This subtype of Issue the Greeks use in the proceedings before judges, we generally before the magistrate's tribunal.​93 We do, however, make some use of it in judicial proceedings. For example, if some one is accused of embezzlement, alleged to have removed silver vessels belonging to the state from a private place, he can say, when he has defined theft and embezzlement, that in his case the action ought to be one for theft and not embezzlement.​94 This subtype of Legal Issue rarely​95 presents itself in judicial proceedings for the following reasons: in a private action there are counterpleas accepted by the praetor,​96 and the plaintiff's fails unless he has had a cause of action; in public investigations the laws provide that, if it suits the defendant, a decision is first passed on whether the plaintiff is, or is not, permitted to make the charge.
Chapter XIII.
Sect. 23 The controversy is based on Analogy when a matter that arises for adjudication lacks a specifically applicable law, but an analogy is sought from other existing laws on the basis of a certain similarity to the matter in question. For example, a law reads: "If a man is raving mad, authority over his person and property shall belong to his agnates, or to the members of his gens."​97 Another law reads: "He who has been convicted of murdering his parent shall be completely wrapped and bound in a leather sack and thrown into a running stream."​98 Another law: "As the head of a family has directed regarding his household or his property, so shall the law hold good."​99 Another law: "If the head of a family dies intestate, his household and property shall belong to his agnates, or to the members of his gens."​100 Malleolus was convicted of matricide. Immediately after he had received sentence, his head was wrapped in a bag of wolf's hide, the "wooden shoes"​101 were put upon his feet, and he was led away to prison. His defenders bring tablets into the jail, write his will in his presence, witnesses duly attending. The penalty is exacted of him. His testamentary heirs enter upon their inheritance. Malleolus' younger brother, who had been one of the accusers in his trial, claims his inheritance by the law of agnation. Here no one specific law is adduced, and yet many laws are adduced, which for the basis for a reasoning by analogy to prove that Malleolus had or had not the right to make a will. It is a Legal Issue established from Analogy.
I have explained the types of Legal Issue. Now let me discuss the Juridical Issue.
Chapter XIV.
Sect. 24 An Issue is Juridical​102 when there is agreement on the act, but the right or wrong of the act is in question. Of this Issue there are two subtypes, one called Absolute,​103 the other Assumptive.104
It is an Absolute Issue when we contend that the act in and of itself, without our drawing on any extraneous considerations, was right. For example, a certain mime abused the poet Accius by name on the stage. Accius sues him on the ground of injuries. The player makes no defence except to maintain that it was permissible to name a person under whose name dramatic works were given to be performed on the stage.105
The Issue is Assumptive when the defence, in itself insufficient, is established by drawing on extraneous matter. The Assumptive subtypes are four: Acknowledgement of the Charge,​106 Rejection of the Responsibility,​107 Shifting of the Question of Guilt,​108 Comparison with the Alternative Course.109
The Acknowledgement​110 is the defendant's plea for pardon. The Acknowledgement includes the Exculpation​111 and the Plea for Mercy.​112 The Exculpation is the defendant's denial that he acted with intent.​113 Under Plea of Exculpation are three subheads: Ignorance,​114 Accident,​115 and Necessity;​116 accident, as in the case of Caepio​117 before the tribunes of the plebs on the loss of his army; ignorance, as in the case of the man who, before opening the tablets of the will by the terms of which his brother's slave had been manumitted, exacted punishment of the slave for having slain his master;​118 necessity, as in the case of the soldier who overstayed his leave because the floods had blocked the roads.​119 It is a Plea for Mercy when the defendant confesses the crime and premeditation, yet begs for compassion.​120 In the courts this is rarely practicable,​121 except when we speak in defence of one whose good deeds are numerous and notable; for example, interposing as a commonplace in amplification: "Even if he had done this, it would still be appropriate to pardon him in view of his past services; but he does not at all beg for pardon." Such a cause, then, is not admissible in the courts, but is admissible before the Senate, or a general, or a council.122
Chapter XV.
Sect. 25 A cause rests on the Shifting of the Question of Guilt when we do not deny our act but plead that we were driven to it by the crimes of others, as in the case of Orestes when he defended himself by diverting the issue of guilt from himself to his mother.123
A cause rests on the Rejection of the Responsibility when we repudiate, not the act charged, but the responsibility, and either transfer it to another person or attribute it to some circumstance. An example of the transference of responsibility to another person: if an accusation should be brought against the confessed slayer of Publius Sulpicius, and he should defend his act by invoking an order of the consuls, declaring that they not only commanded the act but also gave reason why it was lawful.​124 An example of attribution to a circumstance: if a person should be forbidden by a plebiscite to do what a will has directed him to do.
A cause rests on Comparison with the Alternative Course when we declare that it was necessary for us to do one or the other of the two things, and that the one we did was the better. This cause is of the following sort: Gaius Popilius, hemmed in by the Gauls, and quite unable to escape, entered into a parley with the enemy's chiefs. He came away with consent to lead his army out on condition that he abandon his baggage. He considered it better to lose his baggage than his army. He led out his army and left the baggage behind. He is charged with treason.125
Chapter XVI.
I believe that I have made clear what the Types of Issue are and what are their subdivisions. Now I must illustrate the proper ways and means of treating these, first indicating what both sides in a cause ought to fix upon as the point to which the complete economy of the entire speech should be directed.
Sect. 26 Immediately upon finding the Type of Issue, then, we must seek the Justifying Motive.​126 It is this which determines the action and comprises the defence. Thus Orestes (for the sake of clarity, to adhere to this particular action) confesses that he slew his mother. Unless he had advanced a Justifying Motive for the act, he will have ruined his defence. He therefore advances one; were it not interposed, there would not even be an action. "For she," says he, "had slain my father."​127 Thus, as I have shown, the Justifying Motive is what comprises the defence; without it not even the slightest doubt could exist which would delay his condemnation.
Upon finding the Motive advanced in Justification we must seek the Central Point​128 of the Accusation, that is, that which comprises the accusation and is presented in opposition to the Justifying Motive of the defence which I have discussed above. This will be established as follows: When Orestes has used the Justifying Motive: "I had the right to kill my mother, for she had slain my father," the prosecutor will use his Central Point: "Yes, but not by your hand ought she to have been killed or punished without a trial."129
From the Justifying Motive of the defence and the Central Point of the Accusation must arise the Question for Decision, which we call the Point to Adjudicate and the Greeks the krinomenon. That will be established from the meeting of the prosecutor's Central Point and the defendant's Justifying Motive, as follows: When Orestes says that he killed his mother to avenge his father, was it right for Clytemnestra to be slain by her son without a trial? This, then, is the proper method of finding the Point to Adjudicate. Once the Point to Adjudicate is found, the complete economy of the entire speech ought to be directed to it.
Chapter XVII.
Sect. 27 The Points to Adjudicate will be found in this way in all Types of Issue and their subdivisions, except the conjectural.​130 Here the Justifying Motive for the act is not in question, for the act is denied, near is the Central Point of the Accusation sought, for no Justifying Motive has been advanced. Therefore the Point to Adjudicate is established from the Accusation​131 and the Denial,​132 as follows: Accusation: "You killed Ajax." Denial: "I did not." The Point to Adjudicate: Did he kill him? The complete economy of both speeches must, as I have said above, be directed to this Point to Adjudicate. If there are several Types of Issue or their subdivisions in one cause, there will also be several Points to Adjudicate, but all these, too, will be determined by a like method.
I have taken great pains to discuss briefly and clearly the matters that have had to be treated up to this point. Now, since this Book has grown to sufficient length, it will be more convenient in turn to expound other matters in a second Book, so that the great amount of material may not tire you and slacken your attention. If I dispatch these matters too slowly for your eagerness, you will have to attribute that to the magnitude of the subject and also to the demands of my other occupations. Yet I shall make speed, and compensate by diligence for the time taken up by my affairs, to the end that, by this gift, in token of your courtesy towards me and my own interest in you, I may grant your desire in most bounti­ful measure.

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# Rhetorica Ad Herennium
## On the Theory of Public Speaking
### Book I
#### Chapter I.
***(sect. 1)*** My private affairs keep me so busy that I can hardly find enough leisure to devote to studies, and the little that is vouchsafed to me I have usually preferred to spend on philosophy. Yet your desire, Gaius Herennius, has spurred me to compose a work on the Theory of Public Speaking, lest you should suppose that in a matter which concerns you I either lacked the will or shirked the labour. And I have undertaken this project the more gladly because I knew that you had good grounds in wishing to learn rhetoric, for it is true that copiousness and facility in expression bear abundant fruit, if controlled by proper knowledge and a strict discipline of the mind.
That is why I have omitted to treat those topics which, for the sake of futile self-assertion, Greek writers<sup>​1</sup> have adopted. For they, from fear of appearing to know too little, have gone in quest of notions irrelevant to the art, in order that the art might seem more difficult to understand. I, on the other hand, have treated those topics which seemed pertinent to the theory of public speaking. I have not been moved by hope of gain​<sup>​2</sup> or desire for glory, as the rest have been, in undertaking to write, but have done so in order that, by my painstaking work, I may gratify your wish. To avoid prolixity, I shall now begin my discussion of the subject, as soon as I have given you this one injunction: Theory without continuous practice in speaking is of little avail; from this you may understand that the precepts of theory offered ought to be applied in practice.
#### Chapter II.
***(sect. 2)*** The task of the public speaker is to discuss capably those matters which law and custom have fixed for the uses of citizen­ship, and to secure as far as possible the agreement of his hearers.​<sup>3</sup> There are three kinds<sup>​4</sup> of causes which the speaker must treat: Epideictic, Deliberative, and Judicial.<sup>​5</sup> The epideictic kind is devoted to the praise or censure of some particular person. The deliberative consists in the discussion of policy and embraces persuasion and dissuasion.<sup>​6</sup> The judicial is based on legal controversy, and comprises criminal prosecution or civil suit, and defence.<sup>7</sup>
Now I shall explain what faculties the speaker should possess, and then show the proper means of treating these causes.<sup>8</sup>
***(sect. 3)*** The speaker, then, should possess the faculties of Invention, Arrangement, Style, Memory, and Delivery.<sup>​9</sup> Invention is the devising of matter, true or plausible, that would make the case convincing.​<sup>10</sup> Arrangement is the ordering and distribution of the matter, making clear the place to which each thing is to be assigned. Style is the adaptation of suitable words and sentences to the matter devised. Memory is the firm retention in the mind of the matter, words, and arrangement. Delivery is the graceful regulation of voice, countenance, and gesture.
All these faculties we can acquire by three means: Theory, Imitation, and Practice.<sup>​11</sup> By theory is meant a set of rules that provide a definite method and system of speaking. Imitation stimulates us to attain, in accordance with a studied method, the effectiveness of certain models in speaking. Practice is assiduous exercise and experience in speaking.
Since, then, I have shown what causes the speaker should treat and what kinds of competence he should possess, it seems that I now need to indicate how the speech can be adapted to the theory of the speaker's function.
#### Chapter III.
***(sect. 4)*** Invention is used for the six parts of a discourse: the Introduction, Statement of Facts, Division, Proof, Refutation, and Conclusion.<sup>​12</sup> The Introduction is the beginning of the discourse, and by it the hearer's mind is prepared<sup>​13</sup> for attention. The Narration or Statement of Facts sets forth the events that have occurred or might have occurred.<sup>​14</sup> By means of the Division we make clear what matters are agreed upon and what are contested, and announce what points we intend to take up. Proof is the presentation of our arguments, together with their corroboration.<sup>​15</sup> Refutation is the destruction of our adversaries' arguments.<sup>​16</sup> The Conclusion is the end of the discourse, formed in accordance with the principles of the art.
Along with the speaker's functions, in order to make the subject easier to understand, I have been led also to discuss the parts of a discourse, and to adapt these to the theory of Invention. It seems, then, that I must at this juncture first discuss the Introduction.<sup>17</sup>
***(sect. 5)*** Given the cause, in order to be able to make a more appropriate Introduction, we must consider what kind of cause it is. The kinds of causes are four: honourable, discreditable, doubtful, and petty.<sup>​18</sup> A cause is regarded as of the honourable kind when we either defend what seems to deserve defence by all men, or attack what all men seem in duty bound of the attack; for example, when we defend a hero, or prosecute a parricide. A cause is understood to be of the discreditable kind when something honourable is under attack or when something discreditable is being defended. A cause is of the doubtful kind when it is partly honourable and partly discreditable. A cause is of the petty kind when the matter brought up is considered unimportant.
#### Chapter IV.
***(sect. 6)*** In view of these considerations, it will be in point to apply the theory of Introductions to the kind of cause. There are two kinds of Introduction: the Direct Opening, in Greek called the Proimion,<sup>19</sup> and the Subtle Approach, called the Ephodos.<sup>​20</sup> The Direct Opening straightway prepares the hearer to attend to our speech. Its purpose is to enable us to have hearers who are attentive, receptive, and well-disposed.​<sup>21</sup> If our cause is of the doubtful kind, we shall build the Direct Opening upon goodwill, so that the discreditable part of the cause cannot be prejudicial to us. If our cause is of the petty kind, we shall make our hearers attentive. If our cause is of the discreditable kind, unless we have hit upon a means of capturing goodwill by attacking our adversaries, we must use the Subtle Approach, which I shall discuss later.<sup>​22</sup> And finally, if our cause is of the honourable kind, it will be correct either to use the Direct Opening or not to use it.<sup>​23</sup> If we wish to use it, we must show why the cause is honourable, or else briefly discuss what matters we are going to discuss. But if we do not wish to use the Direct Opening, we must begin our speech with a law, a written document, or some argument supporting our cause.
***(sect. 7)*** Since, then, we wish to have our hearer receptive, well-disposed, and attentive, I shall disclose how each state can be brought about. We can have receptive hearers if we briefly summarise the cause and make them attentive; for the receptive hearer is one who is willing to listen attentively. We shall have attentive hearers by promising to discuss important, new, and unusual matters, or such as appertain to the commonwealth, or to the hearers themselves, or to the worship of the immortal gods; by bidding them listen attentively; and by enumerating the points we are going to discuss. ***(sect. 8)*** We can by four methods make our hearers well-disposed: by discussing our own person, the person of our adversaries, that of our hearers, and the facts themselves.<sup>24</sup>
#### Chapter V.
From the discussion of our own person we shall secure goodwill by praising our services without arrogance and revealing also our past conduct toward the republic, or toward our parents, friends, or the audience, and by making some reference to . . . provided that all such references are pertinent to the matter in question; likewise by setting forth our disabilities, need, loneliness, and misfortune,<sup>​25</sup> and pleading for our hearers' aid, and at the same time showing that we have been unwilling to place our hope in anyone else.
From the discussion of the person of our adversaries we shall secure goodwill by bringing them into hatred, unpopularity, or contempt.​<sup>26</sup> We shall force hatred upon them by addu­cing some base, high-handed, treacherous, cruel, impudent, malicious, or shameful act of theirs. We shall make our adversaries unpopular by setting forth their violent behaviour, their dominance, factiousness, wealth, lack of self-restraint, high birth, clients, hospitality, club allegiance, or marriage alliances, and by making clear that they rely more upon these supports than upon the truth. We shall bring our adversaries into contempt by presenting their idleness, cowardice, sloth, and luxurious habits.
From the discussion of the person of our hearers goodwill is secured if we set forth the courage, wisdom, humanity, and nobility of past judgements they have rendered, and if we reveal what esteem they enjoy and with what interest their decision is awaited.
From the discussion of the facts themselves we shall render the hearer well-disposed by extolling our own cause with praise and by contemptuously disparaging that of our adversaries.
#### Chapter VI.
***(sect. 9)*** Now I must explain the Subtle Approach.​<sup>27</sup> There are three occasions on which we cannot use the Direct Opening, and these we must consider carefully: (1) when our cause is discreditable, that is, when the subject itself alienates the hearer from us; (2) when the hearer has apparently been won over by the previous speakers of the opposition; (3) or when the hearer has become wearied by listening to the previous speakers.
If the cause has a discreditable character,<sup>​28</sup> we can make our Introduction with the following points: that the agent, not the action, ought to be considered; that we ourselves are displeased with the acts which our opponents say have been committed, and that these are unworthy, yes, heinous. Next, when we have for a time enlarged upon this idea, we shall show that nothing of the kind has been committed by us. Or we shall set forth the judgement rendered by others in an analogous case, whether that cause be of equal, or less, or greater importance; then we shall gradually approach our own cause and establish the analogy. The same result is achieved if we deny an intention to discuss our opponents or some extraneous matter and yet, by subtly inserting the words,<sup>​29</sup> do so.
***(sect. 10)*** If the hearers have been convinced,​<sup>30</sup> if our opponent's speech has gained their credence — and this will not be hard for us to know, since we are well aware of the means by which belief is ordinarily effected — if, then, we think belief has been effected, we shall make our Subtle Approach to the cause by the following means: the point which our adversaries have regarded as their strongest support we shall promise to discuss first; we shall begin with a statement made by the opponent, and particularly with that which he has made last; and we shall use Indecision,​<sup>31</sup> along with an exclamation of astonishment: "What had I best say?" or "To what point shall I first reply?"
If the hearers have been fatigued by listening, we shall open with something that may provoke laughter<sup>​32</sup> — a fable, a plausible fiction, a caricature, an ironical inversion on the meaning of a word, an ambiguity, innuendo, banter, a naïvety, an exaggeration, a recapitulation,​<sup>33</sup> a pun, an unexpected turn,<sup>​34</sup> a comparison, a novel tale, a historical anecdote, a verse, or a challenge or a smile of approbation directed at some one. Or we shall promise to speak otherwise than as we have prepared, and not to talk as others usually do; we shall briefly explain what the other speakers do and what we intend to do.
#### Chapter VII.
***(sect. 11)*** Between the Subtle Approach and the Direct Opening there is the following difference. The Direct Opening should be such that by the straightforward methods I have prescribed we immediately make the hearer well-disposed or attentive or receptive; whereas the Subtle Approach should be such that we effect all these results covertly, through dissimulation,​<sup>35</sup> and so can arrive at the same vantage-point in the task of speaking. But though this three-fold advantage — that the hearers constantly show themselves attentive, receptive, and well-disposed to us — is to be secured throughout the discourse, it must in the main be won by the Introduction to the cause.
Now, for fear that we may at some time use a faulty Introduction, I shall show what faults must be avoided. In the Introduction of a cause we must make sure that our style is temperate and that the words are in current use,<sup>​36</sup> so that the discourse seems unprepared. An Introduction is faulty if it can be applied as well to a number of causes;<sup>​37</sup> that is called a banal Introduction. Again, an Introduction which the adversary can use no less well is faulty, and that is called a common Introduction. That Introduction, again, is faulty which the opponent can turn to his own use against you. And again that is faulty which has been composed in too laboured a style, or is too long; and that which does not appear to have grown out of the cause itself in such a way as to have an intimate connection with the Statement of Facts; and, finally, that which fails to make the hearer well-disposed or receptive or attentive.
#### Chapter VIII.
Concerning the Introduction I have said enough; next let me turn to the Narration or Statement of Facts. ***(sect. 12)*** There are three types of Statement of Facts.<sup>​38</sup> It is one type when we set forth the facts and turn every detail to our advantage so as to win the victory, and this kind appertains to the causes on which a decision is to be rendered.​<sup>39</sup> There is a second type which often enters into a speech as a means of winning belief or incriminating our adversary<sup>​40</sup> or effecting a transition or setting the stage for something.<sup>​41</sup> The third type<sup>​42</sup> is not used in a cause actually pleaded in court, yet affords us convenient practice<sup>​43</sup> for handling the first two types more advantageously in actual cases. ***(sect. 13)*** Of such narratives there are two kinds: one based on the facts, the other on the persons.<sup>44</sup>
The kind of narrative based on the exposition of the facts presents three forms: legendary, historical, and realistic. The legendary tale comprises events neither true nor probable, like those transmitted by tragedies.<sup>​45</sup> The historical narrative is an account of exploits actually performed, but removed in time from the recollection of our age.<sup>​46</sup> Realistic narrative recounts imaginary events, which yet could have occurred, like the plots of comedies.<sup>47</sup>
A narrative based on the persons should present a lively style and diverse traits of character,<sup>​48</sup> such as austerity and gentleness, hope and fear, distrust and desire, hypocrisy and compassion, and the vicissitudes of life, such as reversal of fortune,<sup>​49</sup> unexpected disaster, sudden joy, and a happy outcome. But it is in practice exercises that these types will be worked out.<sup>​50</sup> How we should handle that type of Statement of Facts which belongs in actual causes I am about to explain.
#### Chapter IX.
***(sect. 14)*** A Statement of Facts should have three qualities: brevity, clarity, and plausibility.<sup>​51</sup> Since we know that these qualities are essential, we must learn how to achieve them.
We shall be able to make the Statement of Facts brief if we begin it at the place at which we need to begin; if we do not try to recount from the remotest beginning; if our Statement of Facts is summary and not detailed;<sup>​52</sup> if we carry it forward, not to the furthermost point, but to the point to which we need to go; if we use no digressions and do not wander from the account we have undertaken to set forth; and if we present the outcome in such a way that the facts that have preceded can also be known, although we have not spoken of them. For example, if I should say that I have returned from the province, it would also be understood that I had gone to the province.<sup>​53</sup> And in general it is better to pass by not only that which weakens the cause but also that which neither weakens nor helps it. Furthermore, we must guard against repeating immediately what we have said already, as in the following: "Simo came from Athens to Megara in the evening; when he came to Megara, he laid a trap for the maiden: after laying the trap he ravished her then and there."<sup>54</sup>
***(sect. 15)*** Our Statement of Facts will be clear<sup>​55</sup> if we set forth the facts in the precise order in which they occurred, observing their actual or probable sequence and chronology. Here we must see that our language is not confused,<sup>​56</sup> involved, or unfamiliar, that we do not shift to another subject, that we do not trace the affair back to its remotest beginning, nor carry it too far forward, and that we do not omit anything pertinent. And our Statement of Facts will be clear if we follow the precepts on brevity that I have laid down,<sup>​57</sup> for the shorter the Statement of Facts, the clearer will it be and the easier to follow.
***(sect. 16)*** Our Statement of Facts will have plausibility​<sup>58</sup> if it answer the requirements of the usual, the expected, and the natural; if account is strictly kept of the length of time, the standing of the persons involved, the motives in the planning, and the advantages offered by the scene of action, so as to obviate the argument in refutation that the time was too short, or that there was no motive, or that the place was unsuitable, or that the persons themselves could not have acted or been treated so. If the matter is true, all these precautions must none the less be observed in the Statement of Facts, for often the truth cannot gain credence otherwise. And if the matter is fictitious, these measures will have to be observed all the more scrupulously. Fabrication must be circumspect in those matters in which official documents or some person's unimpeachable guaranty will prove to have played a rôle.
In what I have thus far said I believe that I agree with the other writers on the art of rhetoric except for the innovations I have devised on Introductions by the Subtle Approach. I alone,<sup>​59</sup> in contrast with the rest, have distinguished three occasions for the Subtle Approach, so as to provide us with a thoroughly sure method and a lucid theory of Introductions. ***(Chapter X.)*** Now as to the rest, since I must discuss the finding of arguments, a matter that makes unique demands upon the art of the speaker, I shall endeavour to exhibit an industry in research such as the importance of the subject demands — as soon as I have prefixed a few remarks on the Division of the cause.
***(sect. 17)*** The Division<sup>​60</sup> of the cause falls into two parts. When The Statement of Facts has been brought to an end, we ought first to make clear what we and our opponents agree upon, if there is agreement on the points useful to us,<sup>​61</sup> and what remains contested, as follows: "Orestes killed his mother;<sup>​62</sup> on that I agree with my opponents. But did he have the right to commit the deed, and was he justified in committing it? That is in dispute." Likewise in reply: "They admit that Agamemnon was killed by Clytemnestra; yet despite this they say that I ought not to have avenged my father."
Then, when we have done this, we should use the Distribution.<sup>​63</sup> The Distribution has two parts: the Enumeration<sup>​64</sup> and the Exposition.​<sup>65</sup> We shall be using the Enumeration when we tell by number how many points we are going to discuss. The number ought not to exceed three; for otherwise, besides the danger that we may at some time include in the speech more or fewer points than we enumerated,<sup>​66</sup> it instils in the hearer the suspicion of premeditation and artifice,​<sup>67</sup> and this robs the speech of conviction. The Exposition consists in setting forth, briefly and completely, the points we intend to discuss.
***(sect. 18)*** Now let me pass to Proof<sup>​68</sup> and Refutation.<sup>​69</sup> The entire hope of victory and entire method of persuasion rest on proof and refutation, for when we have submitted our arguments and destroyed those of the opposition, we have, of course, completely fulfilled the speaker's function. ***(Chapter XI.)*** We shall, then, be enabled to do both if we know the Type of Issue<sup>​70</sup> which the cause presents. Others make these Types of Issue four.<sup>​71</sup> My teacher​<sup>72</sup> thought that there were three, and intending thereby to subtract any of the types they had discovered, but to demonstrate that one type which they should have taught as single and uncompounded they had divided into with distinct and separate types. The Issue is determined by the joining of the primary plea of the defence with the charge of the plaintiff. The Types of Issue are then, as I have said above, three: Conjectural, Legal, and Juridical.<sup>73</sup>
The Issue is Conjectural​<sup>74</sup> when the controversy concerns a question of fact, as follows: In the forest Ajax, after realizing what in his madness he had done, fell on his sword. Ulysses appears, perceives that Ajax is dead, draws the bloody weapon from corpse. Teucer appears, sees his brother dead, and his brother's enemy with bloody sword in hand. He accuses Ulysses of a capital crime. Here the truth is sought by conjecture. The controversy will concern the fact.<sup>​75</sup> And that is why the Issue in the cause is called Conjectural.
***(sect. 19)*** The Issue is Legal​<sup>76</sup> when some controversy turns upon the letter of a text or arises from an implication therein. A Legal Issue is divided into six subtypes: Letter and Spirit,<sup>​77</sup> Conflicting Laws,<sup>​78</sup> Ambiguity,​<sup>79</sup> Definition,<sup>​80</sup> Transference,<sup>​81</sup> and Reasoning from Analogy.<sup>82</sup>
A controversy from Letter and Spirit arises when the framer's intention appears to be at variance with the letter of the text, as follows: Suppose a law which decrees that whoever have abandoned their ship in a storm shall lose all rights of title, and that their ship, if saved, and cargo as well, belong to those who have remained on board. Terrified by the storm's violence, all deserted the ship and took to the boat — all except one sick man who, on account of his illness, could not leave the ship and escape. By sheer chance the ship was driven safely to harbour. The invalid has come into possession of the ship, and the former owner claims it.<sup>​83</sup> Here is a Legal Issue based on Letter and Spirit.<sup>84</sup>
***(sect. 20)*** Controversy results from Conflicting Laws when one law orders or permits a deed while another forbids it, as follows: A law forbids one who has been convicted of extortion to speak before the Assembly.<sup>​85</sup> Another law commands the augur to designate in the Assembly the candidate for the place of a deceased augur.<sup>​86</sup> A certain augur convicted of extortion has designated the candidate for the place of a deceased augur. A penalty is demanded of him.<sup>​87</sup> Here is a Legal Issue established from Conflicting Laws.
#### Chapter XII.
A controversy is created by Ambiguity when a text presents two or more meanings, as follows: The father of a family, when making his son his heir, in his will bequeathed silver vessels to his wife: "Let my heir give my wife thirty pounds' weight of silver vessels, 'such as shall be selected'." After his death the widow asks for some precious vessels of magnificent relief-work. The son contends that he owes her thirty pounds' weight of vessels "such as shall be selected" by him.<sup>​88</sup> Here is a Legal Issue established from Ambiguity.
***(sect. 21)*** A cause rests on Definition when the name by which an act should be called is in controversy. The following is an example: When Lucius Saturninus was about to introduce the grain law concerning the five-sixths as, Quintus Caepio, who was city quaestor during that time, explained to the Senate that the treasury could not endure so great a largess. The Senate decreed that if Saturninus should propose that law before the people he would appear to be doing so against the common weal. Saturninus proceeded with his motion. His colleagues interposed a veto; nevertheless he brought the lot-urn down for the vote. Caepio, when he sees Saturninus presenting his motion against the public welfare despite his colleagues' veto, attacks him with the assistance of some Conservatives, destroys the bridges,<sup>​89</sup> throws down the ballot boxes, and blocks further action on the motion. Caepio is brought to trial for treason.<sup>​90</sup> The Issue is Legal, and is established from Definition, for we are defining the actual term when we investigate what constitute treason.<sup>91</sup>
***(sect. 22)*** A controversy is based on Transference when the defendant maintains that there must be a postponement of time or a change of plaintiff or judges.<sup>​92</sup> This subtype of Issue the Greeks use in the proceedings before judges, we generally before the magistrate's tribunal.<sup>​93</sup> We do, however, make some use of it in judicial proceedings. For example, if some one is accused of embezzlement, alleged to have removed silver vessels belonging to the state from a private place, he can say, when he has defined theft and embezzlement, that in his case the action ought to be one for theft and not embezzlement.<sup>​94</sup> This subtype of Legal Issue rarely<sup>​95</sup> presents itself in judicial proceedings for the following reasons: in a private action there are counterpleas accepted by the praetor,<sup>​96</sup> and the plaintiff's fails unless he has had a cause of action; in public investigations the laws provide that, if it suits the defendant, a decision is first passed on whether the plaintiff is, or is not, permitted to make the charge.
#### Chapter XIII.
***(sect. 23)*** The controversy is based on Analogy when a matter that arises for adjudication lacks a specifically applicable law, but an analogy is sought from other existing laws on the basis of a certain similarity to the matter in question. For example, a law reads: "If a man is raving mad, authority over his person and property shall belong to his agnates, or to the members of his gens."<sup>​97</sup> Another law reads: "He who has been convicted of murdering his parent shall be completely wrapped and bound in a leather sack and thrown into a running stream."​<sup>98</sup> Another law: "As the head of a family has directed regarding his household or his property, so shall the law hold good."​<sup>99</sup> Another law: "If the head of a family dies intestate, his household and property shall belong to his agnates, or to the members of his gens."<sup>​100</sup> Malleolus was convicted of matricide. Immediately after he had received sentence, his head was wrapped in a bag of wolf's hide, the "wooden shoes"<sup>​101</sup> were put upon his feet, and he was led away to prison. His defenders bring tablets into the jail, write his will in his presence, witnesses duly attending. The penalty is exacted of him. His testamentary heirs enter upon their inheritance. Malleolus' younger brother, who had been one of the accusers in his trial, claims his inheritance by the law of agnation. Here no one specific law is adduced, and yet many laws are adduced, which for the basis for a reasoning by analogy to prove that Malleolus had or had not the right to make a will. It is a Legal Issue established from Analogy.
I have explained the types of Legal Issue. Now let me discuss the Juridical Issue.
#### Chapter XIV.
***(sect. 24)*** An Issue is Juridical​<sup>102</sup> when there is agreement on the act, but the right or wrong of the act is in question. Of this Issue there are two subtypes, one called Absolute,<sup>​103</sup> the other Assumptive.<sup>104</sup>
It is an Absolute Issue when we contend that the act in and of itself, without our drawing on any extraneous considerations, was right. For example, a certain mime abused the poet Accius by name on the stage. Accius sues him on the ground of injuries. The player makes no defence except to maintain that it was permissible to name a person under whose name dramatic works were given to be performed on the stage.<sup>105</sup>
The Issue is Assumptive when the defence, in itself insufficient, is established by drawing on extraneous matter. The Assumptive subtypes are four: Acknowledgement of the Charge,<sup>​106</sup> Rejection of the Responsibility,<sup>​107</sup> Shifting of the Question of Guilt,<sup>​108</sup> Comparison with the Alternative Course.<sup>109</sup>
The Acknowledgement<sup>​110</sup> is the defendant's plea for pardon. The Acknowledgement includes the Exculpation<sup>​111</sup> and the Plea for Mercy.<sup>​112</sup> The Exculpation is the defendant's denial that he acted with intent.<sup>​113</sup> Under Plea of Exculpation are three subheads: Ignorance,<sup>​114</sup> Accident,<sup>​115</sup> and Necessity;<sup>​116</sup> accident, as in the case of Caepio<sup>​117</sup> before the tribunes of the plebs on the loss of his army; ignorance, as in the case of the man who, before opening the tablets of the will by the terms of which his brother's slave had been manumitted, exacted punishment of the slave for having slain his master;​<sup>118</sup> necessity, as in the case of the soldier who overstayed his leave because the floods had blocked the roads.<sup>​119</sup> It is a Plea for Mercy when the defendant confesses the crime and premeditation, yet begs for compassion.​<sup>120</sup> In the courts this is rarely practicable,<sup>​121</sup> except when we speak in defence of one whose good deeds are numerous and notable; for example, interposing as a commonplace in amplification: "Even if he had done this, it would still be appropriate to pardon him in view of his past services; but he does not at all beg for pardon." Such a cause, then, is not admissible in the courts, but is admissible before the Senate, or a general, or a council.<sup>122</sup>
#### Chapter XV.
***(sect. 25)*** A cause rests on the Shifting of the Question of Guilt when we do not deny our act but plead that we were driven to it by the crimes of others, as in the case of Orestes when he defended himself by diverting the issue of guilt from himself to his mother.<sup>123</sup>
A cause rests on the Rejection of the Responsibility when we repudiate, not the act charged, but the responsibility, and either transfer it to another person or attribute it to some circumstance. An example of the transference of responsibility to another person: if an accusation should be brought against the confessed slayer of Publius Sulpicius, and he should defend his act by invoking an order of the consuls, declaring that they not only commanded the act but also gave reason why it was lawful.<sup>​124</sup> An example of attribution to a circumstance: if a person should be forbidden by a plebiscite to do what a will has directed him to do.
A cause rests on Comparison with the Alternative Course when we declare that it was necessary for us to do one or the other of the two things, and that the one we did was the better. This cause is of the following sort: Gaius Popilius, hemmed in by the Gauls, and quite unable to escape, entered into a parley with the enemy's chiefs. He came away with consent to lead his army out on condition that he abandon his baggage. He considered it better to lose his baggage than his army. He led out his army and left the baggage behind. He is charged with treason.<sup>125</sup>
#### Chapter XVI.
I believe that I have made clear what the Types of Issue are and what are their subdivisions. Now I must illustrate the proper ways and means of treating these, first indicating what both sides in a cause ought to fix upon as the point to which the complete economy of the entire speech should be directed.
***(sect. 26)*** Immediately upon finding the Type of Issue, then, we must seek the Justifying Motive.<sup>​126</sup> It is this which determines the action and comprises the defence. Thus Orestes (for the sake of clarity, to adhere to this particular action) confesses that he slew his mother. Unless he had advanced a Justifying Motive for the act, he will have ruined his defence. He therefore advances one; were it not interposed, there would not even be an action. "For she," says he, "had slain my father."<sup>​127</sup> Thus, as I have shown, the Justifying Motive is what comprises the defence; without it not even the slightest doubt could exist which would delay his condemnation.
Upon finding the Motive advanced in Justification we must seek the Central Point​<sup>128</sup> of the Accusation, that is, that which comprises the accusation and is presented in opposition to the Justifying Motive of the defence which I have discussed above. This will be established as follows: When Orestes has used the Justifying Motive: "I had the right to kill my mother, for she had slain my father," the prosecutor will use his Central Point: "Yes, but not by your hand ought she to have been killed or punished without a trial."<sup>129</sup>
From the Justifying Motive of the defence and the Central Point of the Accusation must arise the Question for Decision, which we call the Point to Adjudicate and the Greeks the krinomenon. That will be established from the meeting of the prosecutor's Central Point and the defendant's Justifying Motive, as follows: When Orestes says that he killed his mother to avenge his father, was it right for Clytemnestra to be slain by her son without a trial? This, then, is the proper method of finding the Point to Adjudicate. Once the Point to Adjudicate is found, the complete economy of the entire speech ought to be directed to it.
#### Chapter XVII.
***(sect. 27)*** The Points to Adjudicate will be found in this way in all Types of Issue and their subdivisions, except the conjectural.​<sup>130</sup> Here the Justifying Motive for the act is not in question, for the act is denied, near is the Central Point of the Accusation sought, for no Justifying Motive has been advanced. Therefore the Point to Adjudicate is established from the Accusation​<sup>131</sup> and the Denial,​<sup>132</sup> as follows: Accusation: "You killed Ajax." Denial: "I did not." The Point to Adjudicate: Did he kill him? The complete economy of both speeches must, as I have said above, be directed to this Point to Adjudicate. If there are several Types of Issue or their subdivisions in one cause, there will also be several Points to Adjudicate, but all these, too, will be determined by a like method.
I have taken great pains to discuss briefly and clearly the matters that have had to be treated up to this point. Now, since this Book has grown to sufficient length, it will be more convenient in turn to expound other matters in a second Book, so that the great amount of material may not tire you and slacken your attention. If I dispatch these matters too slowly for your eagerness, you will have to attribute that to the magnitude of the subject and also to the demands of my other occupations. Yet I shall make speed, and compensate by diligence for the time taken up by my affairs, to the end that, by this gift, in token of your courtesy towards me and my own interest in you, I may grant your desire in most bounti­ful measure.

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My private affairs keep me so busy that I can hardly find enough leisure to devote to studies, and the little that is vouchsafed to me I have usually preferred to spend on philosophy. Yet your desire, Gaius Herennius, has spurred me to compose a work on the Theory of Public Speaking, lest you should suppose that in a matter which concerns you I either lacked the will or shirked the labour. And I have undertaken this project the more gladly because I knew that you had good grounds in wishing to learn rhetoric, for it is true that copiousness and facility in expression bear abundant fruit, if controlled by proper knowledge and a strict discipline of the mind.
That is why I have omitted to treat those topics which, for the sake of futile self-assertion, Greek writers​ have adopted. For they, from fear of appearing to know too little, have gone in quest of notions irrelevant to the art, in order that the art might seem more difficult to understand. I, on the other hand, have treated those topics which seemed pertinent to the theory of public speaking. I have not been moved by hope of gain​ or desire for glory, as the rest have been, in undertaking to write, but have done so in order that, by my painstaking work, I may gratify your wish. To avoid prolixity, I shall now begin my discussion of the subject, as soon as I have given you this one injunction: Theory without continuous practice in speaking is of little avail; from this you may understand that the precepts of theory offered ought to be applied in practice.
The task of the public speaker is to discuss capably those matters which law and custom have fixed for the uses of citizen­ship, and to secure as far as possible the agreement of his hearers.​ There are three kinds​ of causes which the speaker must treat: Epideictic, Deliberative, and Judicial.​ The epideictic kind is devoted to the praise or censure of some particular person. The deliberative consists in the discussion of policy and embraces persuasion and dissuasion.​ The judicial is based on legal controversy, and comprises criminal prosecution or civil suit, and defence.
Now I shall explain what faculties the speaker should possess, and then show the proper means of treating these causes.
The speaker, then, should possess the faculties of Invention, Arrangement, Style, Memory, and Delivery.​ Invention is the devising of matter, true or plausible, that would make the case convincing.​ Arrangement is the ordering and distribution of the matter, making clear the place to which each thing is to be assigned. Style is the adaptation of suitable words and sentences to the matter devised. Memory is the firm retention in the mind of the matter, words, and arrangement. Delivery is the graceful regulation of voice, countenance, and gesture.
All these faculties we can acquire by three means: Theory, Imitation, and Practice.​ By theory is meant a set of rules that provide a definite method and system of speaking. Imitation stimulates us to attain, in accordance with a studied method, the effectiveness of certain models in speaking. Practice is assiduous exercise and experience in speaking.
Since, then, I have shown what causes the speaker should treat and what kinds of competence he should possess, it seems that I now need to indicate how the speech can be adapted to the theory of the speaker's function.
Invention is used for the six parts of a discourse: the Introduction, Statement of Facts, Division, Proof, Refutation, and Conclusion.​ The Introduction is the beginning of the discourse, and by it the hearer's mind is prepared​ for attention. The Narration or Statement of Facts sets forth the events that have occurred or might have occurred. By means of the Division we make clear what matters are agreed upon and what are contested, and announce what points we intend to take up. Proof is the presentation of our arguments, together with their corroboration.​ Refutation is the destruction of our adversaries' arguments.​ The Conclusion is the end of the discourse, formed in accordance with the principles of the art.
Along with the speaker's functions, in order to make the subject easier to understand, I have been led also to discuss the parts of a discourse, and to adapt these to the theory of Invention. It seems, then, that I must at this juncture first discuss the Introduction.
Given the cause, in order to be able to make a more appropriate Introduction, we must consider what kind of cause it is. The kinds of causes are four: honourable, discreditable, doubtful, and petty.​ A cause is regarded as of the honourable kind when we either defend what seems to deserve defence by all men, or attack what all men seem in duty bound of the attack; for example, when we defend a hero, or prosecute a parricide. A cause is understood to be of the discreditable kind when something honourable is under attack or when something discreditable is being defended. A cause is of the doubtful kind when it is partly honourable and partly discreditable. A cause is of the petty kind when the matter brought up is considered unimportant.
In view of these considerations, it will be in point to apply the theory of Introductions to the kind of cause. There are two kinds of Introduction: the Direct Opening, in Greek called the Proimion, and the Subtle Approach, called the Ephodos.​ The Direct Opening straightway prepares the hearer to attend to our speech. Its purpose is to enable us to have hearers who are attentive, receptive, and well-disposed.​ If our cause is of the doubtful kind, we shall build the Direct Opening upon goodwill, so that the discreditable part of the cause cannot be prejudicial to us. If our cause is of the petty kind, we shall make our hearers attentive. If our cause is of the discreditable kind, unless we have hit upon a means of capturing goodwill by attacking our adversaries, we must use the Subtle Approach, which I shall discuss later.​ And finally, if our cause is of the honourable kind, it will be correct either to use the Direct Opening or not to use it.​ If we wish to use it, we must show why the cause is honourable, or else briefly discuss what matters we are going to discuss. But if we do not wish to use the Direct Opening, we must begin our speech with a law, a written document, or some argument supporting our cause.
Since, then, we wish to have our hearer receptive, well-disposed, and attentive, I shall disclose how each state can be brought about. We can have receptive hearers if we briefly summarise the cause and make them attentive; for the receptive hearer is one who is willing to listen attentively. We shall have attentive hearers by promising to discuss important, new, and unusual matters, or such as appertain to the commonwealth, or to the hearers themselves, or to the worship of the immortal gods; by bidding them listen attentively; and by enumerating the points we are going to discuss. We can by four methods make our hearers well-disposed: by discussing our own person, the person of our adversaries, that of our hearers, and the facts themselves.
From the discussion of our own person we shall secure goodwill by praising our services without arrogance and revealing also our past conduct toward the republic, or toward our parents, friends, or the audience, and by making some reference to . . . provided that all such references are pertinent to the matter in question; likewise by setting forth our disabilities, need, loneliness, and misfortune,​ and pleading for our hearers' aid, and at the same time showing that we have been unwilling to place our hope in anyone else.
From the discussion of the person of our adversaries we shall secure goodwill by bringing them into hatred, unpopularity, or contempt.​ We shall force hatred upon them by addu­cing some base, high-handed, treacherous, cruel, impudent, malicious, or shameful act of theirs. We shall make our adversaries unpopular by setting forth their violent behaviour, their dominance, factiousness, wealth, lack of self-restraint, high birth, clients, hospitality, club allegiance, or marriage alliances, and by making clear that they rely more upon these supports than upon the truth. We shall bring our adversaries into contempt by presenting their idleness, cowardice, sloth, and luxurious habits.
From the discussion of the person of our hearers goodwill is secured if we set forth the courage, wisdom, humanity, and nobility of past judgements they have rendered, and if we reveal what esteem they enjoy and with what interest their decision is awaited.
From the discussion of the facts themselves we shall render the hearer well-disposed by extolling our own cause with praise and by contemptuously disparaging that of our adversaries.
Now I must explain the Subtle Approach.​ There are three occasions on which we cannot use the Direct Opening, and these we must consider carefully: (1) when our cause is discreditable, that is, when the subject itself alienates the hearer from us; (2) when the hearer has apparently been won over by the previous speakers of the opposition; (3) or when the hearer has become wearied by listening to the previous speakers.
If the cause has a discreditable character,​ we can make our Introduction with the following points: that the agent, not the action, ought to be considered; that we ourselves are displeased with the acts which our opponents say have been committed, and that these are unworthy, yes, heinous. Next, when we have for a time enlarged upon this idea, we shall show that nothing of the kind has been committed by us. Or we shall set forth the judgement rendered by others in an analogous case, whether that cause be of equal, or less, or greater importance; then we shall gradually approach our own cause and establish the analogy. The same result is achieved if we deny an intention to discuss our opponents or some extraneous matter and yet, by subtly inserting the words,​ do so.
If the hearers have been convinced,​ if our opponent's speech has gained their credence — and this will not be hard for us to know, since we are well aware of the means by which belief is ordinarily effected — if, then, we think belief has been effected, we shall make our Subtle Approach to the cause by the following means: the point which our adversaries have regarded as their strongest support we shall promise to discuss first; we shall begin with a statement made by the opponent, and particularly with that which he has made last; and we shall use Indecision,​ along with an exclamation of astonishment: "What had I best say?" or "To what point shall I first reply?"
If the hearers have been fatigued by listening, we shall open with something that may provoke laughter​ — a fable, a plausible fiction, a caricature, an ironical inversion on the meaning of a word, an ambiguity, innuendo, banter, a naïvety, an exaggeration, a recapitulation,​ a pun, an unexpected turn,​ a comparison, a novel tale, a historical anecdote, a verse, or a challenge or a smile of approbation directed at some one. Or we shall promise to speak otherwise than as we have prepared, and not to talk as others usually do; we shall briefly explain what the other speakers do and what we intend to do.
Between the Subtle Approach and the Direct Opening there is the following difference. The Direct Opening should be such that by the straightforward methods I have prescribed we immediately make the hearer well-disposed or attentive or receptive; whereas the Subtle Approach should be such that we effect all these results covertly, through dissimulation,​ and so can arrive at the same vantage-point in the task of speaking. But though this three-fold advantage — that the hearers constantly show themselves attentive, receptive, and well-disposed to us — is to be secured throughout the discourse, it must in the main be won by the Introduction to the cause.
Now, for fear that we may at some time use a faulty Introduction, I shall show what faults must be avoided. In the Introduction of a cause we must make sure that our style is temperate and that the words are in current use,​ so that the discourse seems unprepared. An Introduction is faulty if it can be applied as well to a number of causes;​ that is called a banal Introduction. Again, an Introduction which the adversary can use no less well is faulty, and that is called a common Introduction. That Introduction, again, is faulty which the opponent can turn to his own use against you. And again that is faulty which has been composed in too laboured a style, or is too long; and that which does not appear to have grown out of the cause itself in such a way as to have an intimate connection with the Statement of Facts; and, finally, that which fails to make the hearer well-disposed or receptive or attentive.
Concerning the Introduction I have said enough; next let me turn to the Narration or Statement of Facts. There are three types of Statement of Facts.​ It is one type when we set forth the facts and turn every detail to our advantage so as to win the victory, and this kind appertains to the causes on which a decision is to be rendered.​ There is a second type which often enters into a speech as a means of winning belief or incriminating our adversary​ or effecting a transition or setting the stage for something.​ The third type​ is not used in a cause actually pleaded in court, yet affords us convenient practice​ for handling the first two types more advantageously in actual cases. Of such narratives there are two kinds: one based on the facts, the other on the persons.
The kind of narrative based on the exposition of the facts presents three forms: legendary, historical, and realistic. The legendary tale comprises events neither true nor probable, like those transmitted by tragedies.​ The historical narrative is an account of exploits actually performed, but removed in time from the recollection of our age. Realistic narrative recounts imaginary events, which yet could have occurred, like the plots of comedies.
A narrative based on the persons should present a lively style and diverse traits of character,​ such as austerity and gentleness, hope and fear, distrust and desire, hypocrisy and compassion, and the vicissitudes of life, such as reversal of fortune,​ unexpected disaster, sudden joy, and a happy outcome. But it is in practice exercises that these types will be worked out.​ How we should handle that type of Statement of Facts which belongs in actual causes I am about to explain.
A Statement of Facts should have three qualities: brevity, clarity, and plausibility.​ Since we know that these qualities are essential, we must learn how to achieve them.
We shall be able to make the Statement of Facts brief if we begin it at the place at which we need to begin; if we do not try to recount from the remotest beginning; if our Statement of Facts is summary and not detailed;​ if we carry it forward, not to the furthermost point, but to the point to which we need to go; if we use no digressions and do not wander from the account we have undertaken to set forth; and if we present the outcome in such a way that the facts that have preceded can also be known, although we have not spoken of them. For example, if I should say that I have returned from the province, it would also be understood that I had gone to the province.​ And in general it is better to pass by not only that which weakens the cause but also that which neither weakens nor helps it. Furthermore, we must guard against repeating immediately what we have said already, as in the following: "Simo came from Athens to Megara in the evening; when he came to Megara, he laid a trap for the maiden: after laying the trap he ravished her then and there."
Our Statement of Facts will be clear​ if we set forth the facts in the precise order in which they occurred, observing their actual or probable sequence and chronology. Here we must see that our language is not confused,​ involved, or unfamiliar, that we do not shift to another subject, that we do not trace the affair back to its remotest beginning, nor carry it too far forward, and that we do not omit anything pertinent. And our Statement of Facts will be clear if we follow the precepts on brevity that I have laid down,​ for the shorter the Statement of Facts, the clearer will it be and the easier to follow.
Our Statement of Facts will have plausibility​ if it answer the requirements of the usual, the expected, and the natural; if account is strictly kept of the length of time, the standing of the persons involved, the motives in the planning, and the advantages offered by the scene of action, so as to obviate the argument in refutation that the time was too short, or that there was no motive, or that the place was unsuitable, or that the persons themselves could not have acted or been treated so. If the matter is true, all these precautions must none the less be observed in the Statement of Facts, for often the truth cannot gain credence otherwise. And if the matter is fictitious, these measures will have to be observed all the more scrupulously. Fabrication must be circumspect in those matters in which official documents or some person's unimpeachable guaranty will prove to have played a rôle.
In what I have thus far said I believe that I agree with the other writers on the art of rhetoric except for the innovations I have devised on Introductions by the Subtle Approach. I alone,​ in contrast with the rest, have distinguished three occasions for the Subtle Approach, so as to provide us with a thoroughly sure method and a lucid theory of Introductions. Now as to the rest, since I must discuss the finding of arguments, a matter that makes unique demands upon the art of the speaker, I shall endeavour to exhibit an industry in research such as the importance of the subject demands — as soon as I have prefixed a few remarks on the Division of the cause.
The Division​ of the cause falls into two parts. When The Statement of Facts has been brought to an end, we ought first to make clear what we and our opponents agree upon, if there is agreement on the points useful to us,​ and what remains contested, as follows: "Orestes killed his mother;​ on that I agree with my opponents. But did he have the right to commit the deed, and was he justified in committing it? That is in dispute." Likewise in reply: "They admit that Agamemnon was killed by Clytemnestra; yet despite this they say that I ought not to have avenged my father."
Then, when we have done this, we should use the Distribution.​ The Distribution has two parts: the Enumeration​ and the Exposition.​ We shall be using the Enumeration when we tell by number how many points we are going to discuss. The number ought not to exceed three; for otherwise, besides the danger that we may at some time include in the speech more or fewer points than we enumerated,​ it instils in the hearer the suspicion of premeditation and artifice,​ and this robs the speech of conviction. The Exposition consists in setting forth, briefly and completely, the points we intend to discuss.
Now let me pass to Proof​ and Refutation.​ The entire hope of victory and entire method of persuasion rest on proof and refutation, for when we have submitted our arguments and destroyed those of the opposition, we have, of course, completely fulfilled the speaker's function. We shall, then, be enabled to do both if we know the Type of Issue​ which the cause presents. Others make these Types of Issue four.​ My teacher​ thought that there were three, and intending thereby to subtract any of the types they had discovered, but to demonstrate that one type which they should have taught as single and uncompounded they had divided into with distinct and separate types. The Issue is determined by the joining of the primary plea of the defence with the charge of the plaintiff. The Types of Issue are then, as I have said above, three: Conjectural, Legal, and Juridical.
The Issue is Conjectural​ when the controversy concerns a question of fact, as follows: In the forest Ajax, after realizing what in his madness he had done, fell on his sword. Ulysses appears, perceives that Ajax is dead, draws the bloody weapon from corpse. Teucer appears, sees his brother dead, and his brother's enemy with bloody sword in hand. He accuses Ulysses of a capital crime. Here the truth is sought by conjecture. The controversy will concern the fact.​ And that is why the Issue in the cause is called Conjectural.
The Issue is Legal​ when some controversy turns upon the letter of a text or arises from an implication therein. A Legal Issue is divided into six subtypes: Letter and Spirit,​ Conflicting Laws,​ Ambiguity,​ Definition,​ Transference,​ and Reasoning from Analogy.
A controversy from Letter and Spirit arises when the framer's intention appears to be at variance with the letter of the text, as follows: Suppose a law which decrees that whoever have abandoned their ship in a storm shall lose all rights of title, and that their ship, if saved, and cargo as well, belong to those who have remained on board. Terrified by the storm's violence, all deserted the ship and took to the boat — all except one sick man who, on account of his illness, could not leave the ship and escape. By sheer chance the ship was driven safely to harbour. The invalid has come into possession of the ship, and the former owner claims it.​ Here is a Legal Issue based on Letter and Spirit.
Controversy results from Conflicting Laws when one law orders or permits a deed while another forbids it, as follows: A law forbids one who has been convicted of extortion to speak before the Assembly.​ Another law commands the augur to designate in the Assembly the candidate for the place of a deceased augur.​ A certain augur convicted of extortion has designated the candidate for the place of a deceased augur. A penalty is demanded of him.​ Here is a Legal Issue established from Conflicting Laws.
A controversy is created by Ambiguity when a text presents two or more meanings, as follows: The father of a family, when making his son his heir, in his will bequeathed silver vessels to his wife: "Let my heir give my wife thirty pounds' weight of silver vessels, 'such as shall be selected'." After his death the widow asks for some precious vessels of magnificent relief-work. The son contends that he owes her thirty pounds' weight of vessels "such as shall be selected" by him.​ Here is a Legal Issue established from Ambiguity.
A cause rests on Definition when the name by which an act should be called is in controversy. The following is an example: When Lucius Saturninus was about to introduce the grain law concerning the five-sixths as, Quintus Caepio, who was city quaestor during that time, explained to the Senate that the treasury could not endure so great a largess. The Senate decreed that if Saturninus should propose that law before the people he would appear to be doing so against the common weal. Saturninus proceeded with his motion. His colleagues interposed a veto; nevertheless he brought the lot-urn down for the vote. Caepio, when he sees Saturninus presenting his motion against the public welfare despite his colleagues' veto, attacks him with the assistance of some Conservatives, destroys the bridges,​ throws down the ballot boxes, and blocks further action on the motion. Caepio is brought to trial for treason.​ The Issue is Legal, and is established from Definition, for we are defining the actual term when we investigate what constitute treason.
A controversy is based on Transference when the defendant maintains that there must be a postponement of time or a change of plaintiff or judges.​ This subtype of Issue the Greeks use in the proceedings before judges, we generally before the magistrate's tribunal.​ We do, however, make some use of it in judicial proceedings. For example, if some one is accused of embezzlement, alleged to have removed silver vessels belonging to the state from a private place, he can say, when he has defined theft and embezzlement, that in his case the action ought to be one for theft and not embezzlement.​ This subtype of Legal Issue rarely​ presents itself in judicial proceedings for the following reasons: in a private action there are counterpleas accepted by the praetor,​ and the plaintiff's fails unless he has had a cause of action; in public investigations the laws provide that, if it suits the defendant, a decision is first passed on whether the plaintiff is, or is not, permitted to make the charge.
The controversy is based on Analogy when a matter that arises for adjudication lacks a specifically applicable law, but an analogy is sought from other existing laws on the basis of a certain similarity to the matter in question. For example, a law reads: "If a man is raving mad, authority over his person and property shall belong to his agnates, or to the members of his gens."​ Another law reads: "He who has been convicted of murdering his parent shall be completely wrapped and bound in a leather sack and thrown into a running stream."​ Another law: "As the head of a family has directed regarding his household or his property, so shall the law hold good."​ Another law: "If the head of a family dies intestate, his household and property shall belong to his agnates, or to the members of his gens."​ Malleolus was convicted of matricide. Immediately after he had received sentence, his head was wrapped in a bag of wolf's hide, the "wooden shoes"​ were put upon his feet, and he was led away to prison. His defenders bring tablets into the jail, write his will in his presence, witnesses duly attending. The penalty is exacted of him. His testamentary heirs enter upon their inheritance. Malleolus' younger brother, who had been one of the accusers in his trial, claims his inheritance by the law of agnation. Here no one specific law is adduced, and yet many laws are adduced, which for the basis for a reasoning by analogy to prove that Malleolus had or had not the right to make a will. It is a Legal Issue established from Analogy.
I have explained the types of Legal Issue. Now let me discuss the Juridical Issue.
An Issue is Juridical​ when there is agreement on the act, but the right or wrong of the act is in question. Of this Issue there are two subtypes, one called Absolute,​ the other Assumptive.
It is an Absolute Issue when we contend that the act in and of itself, without our drawing on any extraneous considerations, was right. For example, a certain mime abused the poet Accius by name on the stage. Accius sues him on the ground of injuries. The player makes no defence except to maintain that it was permissible to name a person under whose name dramatic works were given to be performed on the stage.
The Issue is Assumptive when the defence, in itself insufficient, is established by drawing on extraneous matter. The Assumptive subtypes are four: Acknowledgement of the Charge,​ Rejection of the Responsibility,​ Shifting of the Question of Guilt,​ Comparison with the Alternative Course.
The Acknowledgement is the defendant's plea for pardon. The Acknowledgement includes the Exculpation​ and the Plea for Mercy.​ The Exculpation is the defendant's denial that he acted with intent.​ Under Plea of Exculpation are three subheads: Ignorance,​ Accident,​ and Necessity;​ accident, as in the case of Caepio​ before the tribunes of the plebs on the loss of his army; ignorance, as in the case of the man who, before opening the tablets of the will by the terms of which his brother's slave had been manumitted, exacted punishment of the slave for having slain his master;​ necessity, as in the case of the soldier who overstayed his leave because the floods had blocked the roads.​ It is a Plea for Mercy when the defendant confesses the crime and premeditation, yet begs for compassion.​ In the courts this is rarely practicable,​ except when we speak in defence of one whose good deeds are numerous and notable; for example, interposing as a commonplace in amplification: "Even if he had done this, it would still be appropriate to pardon him in view of his past services; but he does not at all beg for pardon." Such a cause, then, is not admissible in the courts, but is admissible before the Senate, or a general, or a council.
A cause rests on the Shifting of the Question of Guilt when we do not deny our act but plead that we were driven to it by the crimes of others, as in the case of Orestes when he defended himself by diverting the issue of guilt from himself to his mother.
A cause rests on the Rejection of the Responsibility when we repudiate, not the act charged, but the responsibility, and either transfer it to another person or attribute it to some circumstance. An example of the transference of responsibility to another person: if an accusation should be brought against the confessed slayer of Publius Sulpicius, and he should defend his act by invoking an order of the consuls, declaring that they not only commanded the act but also gave reason why it was lawful.​ An example of attribution to a circumstance: if a person should be forbidden by a plebiscite to do what a will has directed him to do.
A cause rests on Comparison with the Alternative Course when we declare that it was necessary for us to do one or the other of the two things, and that the one we did was the better. This cause is of the following sort: Gaius Popilius, hemmed in by the Gauls, and quite unable to escape, entered into a parley with the enemy's chiefs. He came away with consent to lead his army out on condition that he abandon his baggage. He considered it better to lose his baggage than his army. He led out his army and left the baggage behind. He is charged with treason.
I believe that I have made clear what the Types of Issue are and what are their subdivisions. Now I must illustrate the proper ways and means of treating these, first indicating what both sides in a cause ought to fix upon as the point to which the complete economy of the entire speech should be directed.
Immediately upon finding the Type of Issue, then, we must seek the Justifying Motive.​ It is this which determines the action and comprises the defence. Thus Orestes (for the sake of clarity, to adhere to this particular action) confesses that he slew his mother. Unless he had advanced a Justifying Motive for the act, he will have ruined his defence. He therefore advances one; were it not interposed, there would not even be an action. "For she," says he, "had slain my father."​ Thus, as I have shown, the Justifying Motive is what comprises the defence; without it not even the slightest doubt could exist which would delay his condemnation.
Upon finding the Motive advanced in Justification we must seek the Central Point​ of the Accusation, that is, that which comprises the accusation and is presented in opposition to the Justifying Motive of the defence which I have discussed above. This will be established as follows: When Orestes has used the Justifying Motive: "I had the right to kill my mother, for she had slain my father," the prosecutor will use his Central Point: "Yes, but not by your hand ought she to have been killed or punished without a trial."
From the Justifying Motive of the defence and the Central Point of the Accusation must arise the Question for Decision, which we call the Point to Adjudicate and the Greeks the krinomenon. That will be established from the meeting of the prosecutor's Central Point and the defendant's Justifying Motive, as follows: When Orestes says that he killed his mother to avenge his father, was it right for Clytemnestra to be slain by her son without a trial? This, then, is the proper method of finding the Point to Adjudicate. Once the Point to Adjudicate is found, the complete economy of the entire speech ought to be directed to it.
The Points to Adjudicate will be found in this way in all Types of Issue and their subdivisions, except the conjectural.​ Here the Justifying Motive for the act is not in question, for the act is denied, near is the Central Point of the Accusation sought, for no Justifying Motive has been advanced. Therefore the Point to Adjudicate is established from the Accusation and the Denial,​ as follows: Accusation: "You killed Ajax." Denial: "I did not." The Point to Adjudicate: Did he kill him? The complete economy of both speeches must, as I have said above, be directed to this Point to Adjudicate. If there are several Types of Issue or their subdivisions in one cause, there will also be several Points to Adjudicate, but all these, too, will be determined by a like method.
I have taken great pains to discuss briefly and clearly the matters that have had to be treated up to this point. Now, since this Book has grown to sufficient length, it will be more convenient in turn to expound other matters in a second Book, so that the great amount of material may not tire you and slacken your attention. If I dispatch these matters too slowly for your eagerness, you will have to attribute that to the magnitude of the subject and also to the demands of my other occupations. Yet I shall make speed, and compensate by diligence for the time taken up by my affairs, to the end that, by this gift, in token of your courtesy towards me and my own interest in you, I may grant your desire in most bounti­ful measure.

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17 Chapters
27 Sections
132 Footnotes
5825 Words