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ded. For if this was once made to appear,
the lawfulness of Milo's killing Clodius, which was the grand question or thing to be proved, might be inferred, as an allowed consequence from it. This will be evident, by throwing Milo's argument, as used by Cicero, into the form of a syllogism :
An assassinator is larefully killed:
whom he assassinated. If the minor proposition of this syllogism was granted, no one would deny the conclusion; for the Roman law allowed of self-defence. But as Cicero was very sensible this would not be admitted, so he takes much pains to bring the court into the belief of it. Now where the argument brought in defence of the second question is contested, or the orator supposes that it may be so, and therefore supports that with another argument, this occasions a third question consequent upon the former; and in like manner he may proceed to a fourth. But be they more or fewer, they are to be considered but as one chain of subordinate questions dependent upon the first. And though each of them has its particular state, yet none of these is what rhetoricians call The State of the Cause, which is to be understood only of the principal question. And if, as it frequently happens, the first or principal question is itself directly proved from more than one argument, this makes no other difference, but that each of these arguments, so far as they are followed by others to support them, become a distinct series of subordinate questions, all dependent upon the first. As when Cicero endeavours to prove, that Roscius did not kill his father from two reasons or arguments ;-because he had neither any cause to move him to such a barbarous action, nor any opportunity for it.
Moreover, besides these subordinate questions, there are also incidental ones often introduced, which have some reference to the principal question, and contribute towards the proof of it, though they are not necessarily connected with it, or dependent upon it. And each of these also has its State, though different from that of the Cause. For every question, or point of controversy, must be stated, before it can be made the subject of disputation. And it is for this reason that every new argument advanced by an orator is called a question, because it is considered as a fresh matter of controversy. In Cicero's defence of Milo we meet with several of this sort of questions, occasioned by some aspersions which had been thrown out by the Clodian party to the prejudice of Milo. As, That he was unworthy to see the light who owned he had killed a man. For Milo before his trial had openly confessed he killed Clodius. So likewise, That the senate had declared the killing of Clodius was an illegal action. And further, That Pompey, by making a new law to settle the manner of Milo's trial, had given his judgment against Milo. Now to each of these Cicero replies, before he proceeds to the principal question. And therefore, though the question, in which the state of a controversy consists, is said by Quintilian to arise from the first conflict of causes, yet we find by this
instance of Cicero that it is not always the first question in order upon which the orator treats.
But it sometimes happens that the same eause or controversy contains in it more than one state. Thus in judicial causes every distinct charge occasions a new state. All Cicero's orations against Verres relate to one cause, founded
a law of the Romans against un. just exactions made by their
provinces upon the inhabitants; but as that prosecution is made up of as many charges as there are orations, every charge or inditement has its different state. So likewise his oration in defence of Cælius has two states, in answer to a double charge made against him by his adversaries : one, for borrowing money of Clodia, in order to bribe certain slaves to kill a foreign embassador; and the other, for an attempt afterward to poison Clodia herself. Besides which there were also several other matters of a less heinous nature, which had been thrown upon him by his accusers, with a design, very likely, to render the two principal charges more credible ; to which Cicero first replies in the same manner as in his defence of Milo.
Though all the examples we have hitherto brought to illustrate this subject have been taken from judicial cases, yet not only these, but very frequently discourses of the deliberative kind, and sometimes those of the demonstrative, are managed in a controversial way. And all controversies have their state. And, therefore, Quintilian very justly observes, that states belong both to general and particular, questions, and to all sorts of causes demonstra
tire, deliberative, and judicial. In Cicero's oration for the Manilian law, this is the main point in dispute between him and those who opposed that law : Whether Pompey was the fittest person to be intrusted with the management of the war against Mithridates? This is a subject of the deliberative kind. And of the same nature was that debate in the senate concerning the demolition of Carthage. For the matter in dispute between Cato, who argued for it, and those who were of the contrary opinion, seems to have been this: Whether it was for the interest of the Romans to demolish Carthage?
As to the number of these states, both Cicero and Quintilian reduce them to three. I shall recite. Quintilian's reason which he gives for this opinion. We must, says he, agree with those whose authority Cicero follows, who tell us that three things may be inquired into in all disputes ; whether a thing is, what it is, and how it is. And this is the method which nature prescribes. For in the first place it is necessary the thing should exist, about which the dispute is: because no judgment can be made either of its nature or quality till its existence be manifest; which is therefore the first question. But though it be manifest that a thing is, it does not presently appear what it is; and when this is known, the quality yet remains : and after these three are settled, no further inquiry is necessary. Thus far Quintilian. Now the first of these three states is called the conjectural state; as if it be inquired, Whether one person killed another. This always follows upon the denial of a fact by one of the parties, as was the case of
Roscius. And it receives its name from hence, that the judge is left, as it were, to conjecture whether the fact was really committed or not, from the evidence produced on the other side. The second is called the definitive state, when the fact is not denied, but the dispute turns upon the nature of it, and what name is proper to give it; as in that example of Cicero: Whether to take a sacred thing out of a private house be theft or sacrilege? For in this case it is necessary to settle the distinct notion of those two crimes, and show their difference. The third is called the state of quality, when the contending parties are agreed both as to the fact, and the nature of it; but the dispute is: Whether it be just or unjust, profitable or unprofitable, and the like: as in the cause of Milo. Aristotle, and from him Vossius, add a fourth state, namely of quantity, as; Whether an injury be so great as it is said to be. But Quintilian thinks this may be referred to some or other of the preceding states; since it depends upon the circumstances of the fact, as the intention, time, place, or the like.
From what has been said upon this subject, the use of it may in a good measure appear. For whoever engages in a controversy ought in the first place to consider with himself the main question in dispute, to fix it well in his mind, and keep it constantly in his view; without which he will be very liable to ramble from the point, and bewilder both himself and his hearers. And it is no less the business of the hearers principally to attend to this; by which means they will be helped to distinguish and separate from the principal question what is only incidental, and