Hermagoras's method of proceeding; the question, § 1-3. The mode of defense, 4-6. The point for decision, 7, 8. The ground or substance of the cause, 9. The question and the point for decision may be conjoined or separate, according to the nature of the cause, 10-17. Opinions of Cicero, 18-20. Hermagoras too fond of nice subdivisions, 21-25. Method of Theodorus, 26, 27. Conclusion, 28. 1. WHEN these matters are settled, Hermagoras thinks that we must next consider what is the question, the mode of defense, the point for judgment, the συνέχον (synechon), or point "containing" the accusation, or, as some call it, the firmamentum, or "foundation" of the cause. "Question," in its more general sense, is understood to mean everything on which two or more plausible opinions may be advanced. 2. But in regard to judicial matters, it is to be taken in two senses: one, when we say that a cause involves several questions, among which we include even those of least importance; the other, when we mean the great question on which a cause turns. It is of the second that I now speak, and it is from this that the state has its origin: status conjecturalis, "Has a thing been done?"; status definitivus, "What has been done?"; and status qualitatis, "Has it been justifiably done?" 3. These interrogatories Hermagoras, Apollodorus, and many other writers properly call "questions"; Theodorus, as I observed, terms them "general heads," and the minor questions, or those dependent on them, "special heads," as it admitted that one question may arise from another question and that a species may be divided into species. 4. This principal question of all, then, they call the ζήτημα (zētēma). The mode of defense is that process by which what is admitted to have been done is justified. To exemplify it, why should I not use that instance which almost all writers have adopted? "Orestes killed his mother": this is admitted, but he says that he killed her justly. The state will then be that of quality, the question, "Whether he killed her justly?" The ground of defense will be that Clytemnestra killed her husband, the father of Orestes. this is called the αἴτιον (aition). The point for judgment, the κρινόμενον (krinomenon), will be, in this case, whether even a mother guilty of such a crime ought to be killed by her son. 5. Some have made a distinction between αἴτιον (aition) and αἰτία (aitia), making the first signify the cause for which a trial becomes necessary, as the killing of Clytemnestra, the second, the ground on which the deed is justified, as the killing of Agamemnon. But such has been the disagreement as to the sense of these words, that some call aitia the cause of the trial and aition the cause of the deed, while others use them in senses exactly contrary. Among the Latins, some have adopted the terms initium, "commencement," and ratio, "reason," while some include both under the same term. 6. Cause also appears to arise from cause, αἴτιον ἐξ αἰτίον, as, "Clytemnestra killed Agamemnon because he had sacrificed their common daughter, and brought home a captive as his concubine." The same authors are of opinion that in one question, there may be several grounds of defense, as, for example, "if Orestes adds another cause for having killed his mother, namely, that he was forced to obey an oracle," and that whatever number of causes for the deed may be alleged, there are the same number of points for judgment, as it will also be a point for judgment whether he ought to have obeyed the oracle. 7. But even one alleged cause for a deed may, as I conceive, give rise to several questions and points for judgment, as in the case of the man, who, after he had killed his wife on catching her in adultery, subsequently killed the adulterer, who at first escaped, in the forum. The alleged cause for the deed is but one, "He was an adulterer," but several questions and points for judgment may arise, as whether it was lawful to kill him at that time or in that place. 8. But as when there are several questions, and all have their states, there is yet but one state in the cause to which everything is referred, so there is but one proper point for judgment on which the decision is pronounced. 9. As to the συνέχον (synechon), which, as I said, some call continens, others firmamentum, and Cicero "the strongest argument of the defender, and the fittest point for adjudication," some regard it as that after which nothing remains to be ascertained, some as that which is the strongest point for adjudication. 10. The reason of the deed is not a point for consideration in all causes, for what reason for the deed need be sought when the deed is altogether denied? But when the reason of the deed is an object of consideration, they deny that the ultimate point for decision rests on the same ground as the first question, an observation which Cicero makes both in his Rhetorica and his Partitiones. 11. For when it is said, "It was done; it was not done; was it done?" the question rests on conjecture, and the judication rests on the same ground as the question, because the first question and the ultimate decision are about the same point. But when it is said, "Orestes killed his mother; he killed her justly; no, but unjustly; did he kill her justly?" the question rests on the consideration of quality, but this is not yet the point for decision. When then will it be? After the statement, "She had killed my father; but you ought not, therefore, to have killed your mother; ought Orestes to have killed her?" Here is the point for decision. 12. The fundamental point of the defense I will give in the words of Cicero himself: "if Orestes were inclined to say that the disposition of his mother towards his father, towards himself and his sisters, towards his kingdom, and towards the reputation of his race and family, had been of such a nature that her children felt of all people most obliged to inflict punishment on her." 13. Others also use such examples as these: "the law says, let him who has exhausted his patrimony not be allowed to address the people; but the defendant exhausted his upon public works," and the question then is, "whether whoever has exhausted his patrimony is not to be allowed," and the point for judgment, "whether he who has exhausted his patrimony in such a way is not to be allowed." 14. Or consider the case of the Auruncan soldier, who killed the tribune Caius Lusius when he made dishonorable advances to him, in which the question is, "whether he killed him justly," the ground of defense, "that he made dishonorable advances," the point for judgment, "whether it were lawful for a person to be killed uncondemned; whether it were lawful for a tribune to be killed by a soldier." 15. Some also regard the question, as in one state, and the point for decision in another; for example, the question "whether Milo did right in killing Clodius" is in the state of quality, but the point for decision, "whether Clodius lay in wait for Milo," is in the state of conjecture. 16. They say also that a cause often strays into some matter which does not properly belong to the question, and on which the decision is pronounced. I am not at all of their opinion, for the question, for instance, "whether every man who has exhausted his patrimony is forbidden to address the people," must have its decision. Therefore, the question and the point for decision will not be different, but there will be more than one question and more than one point for decision. 17. In the case of Milo, too, is not the question of fact considered with reference to the question of quality? For if Clodius lay in wait, it follows that he was justly killed. But when the cause goes into some other matter and recedes from the question which was first proposed, the question will be in the state in which the point for decision is. 18. Respecting these matters, even Cicero is in some degree at variance with himself, for in his Rhetorica, as I said above, he has followed Hermagoras, and in his Topica, he expresses himself of opinion that κρινόμενον (krinomenon), the "point of judgment," is the consideration arising from the state, and in addressing Trebatius, a lawyer of his time, he calls it "the point about which the discussion is" and terms the particulars in which that point is contained continentia, the "containing particulars" and the firmamenta, "supports," as it were, of the defense, without which there would be no defense at all. 19. But in his Partitiones Oratoriae he calls the firmamentum that which is opposed to the defense, because the continens, the "containing point," as it is the first thing, is advanced by the accuser, while the ratio, "mode of defense," proceeds from the defendant. From the opposition of the ratio and firmamentum arises the question for decision. Therefore, those authors who have made the state, the containing point, and the question for decision to be all the same and who have pronounced the containing point to be that without which there would be no discussion, have settled the matter more judiciously and concisely. 20. In this "containing point," they seem to me to have included both allegations, "that Orestes killed his mother, and that Clytemnestra killed Agamemnon." The same writers think that the state and the point for judgment always concur, and indeed any other opinion would have been at variance with their views. 21. But this studied subtlety about names of things is but ostentatious labor and has only been noticed by me that I might not appear to have given too little consideration to the work which I have taken in hand. A master who teaches without affectation need not split his mode of teaching into such minute distinctions. 22. Excessive subdivision is a fault into which many rhetoricians have fallen, and especially Hermagoras, a man otherwise of great sagacity, deserving of admiration on many accounts, and censurable only for too anxious diligence, so that even what we blame in him is not unworthy of some degree of commendation. 23. But the way which I follow is far shorter and for that reason plainer, and will neither fatigue the learner with long windings, nor enervate the body of his language by portioning it out into minute particulars. For he who sees what point it is that comes into controversy; what the opposite side wishes to do with regard to it, and by what means; what his own side has to do (a particular especially to be regarded), cannot be without a full understanding of all the matters on which I have just spoken. 24. Nor can there, we may say, be any person not utterly devoid of sense and a stranger to all practice in pleading that does not know what it is that gives rise to a discussion (which is called by the rhetoricians the cause and the containing point); what is the question between two parties; on what point judgment must be given; and which three things are indeed all the same. For the subject of the question is that which comes into controversy, and judgment is given respecting that which is the subject of the question. 25. But we do not perpetually keep our attention fixed on these matters, but moved with the desire of obtaining praise by whatever means or carried away with the pleasure of speaking, we allow ourselves to wander from our subject. Matter without the cause is always more abundant than within it, for in the controversy itself there is indeed comparatively little, and everything else is beyond its limits; in the one case, we speak only of matters in which we have been instructed, in the other, on whatever we please. 26. Nor is it so much to be charged upon ourselves that we should discover the question, the containing point, and the point for judgment (for to discover them is easy), as that we should always look steadily to our object, or at least, if we digress from it, should recover sight of it, lest, while we are striving for applause, our arms should drop from our grasp. 27. The school of Theodorus, as I said, distinguishes everything into heads, under which term several particulars are comprehended. Under the first, only the main question, the same as the state; under the next, other questions, which refer to the main question; under the third, the proposition with its proofs. The word is used in the same sense in which we say caput rei est, "it is the head of the business"; in Menander, κεφάλαιόν ἐστι (kephalaion esti). But, in general, whatever is to be proved will be a head, whether of greater or lesser importance. 28. Since I have now set forth, even more circumstantially than was requisite, what is taught on these points by the writers of books on rhetoric, and since I have already specified the several parts of judicial causes, my next book shall treat of proems or exordia.
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