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it :-as when we advise to the doing of a thing from this motive, that whether it succeed or not it will yet be of service to undertake it. So, after the great victory gained by Themistocles over the Persian fleet at the straits of Salamis, Mardonius advised Xerxes to return into Asia himself, lest the report of his defeat should occasion an insurrection in his absence; but to leave behind him an army of three hundred thousand men under his command; with which if he should conquer Greece, the chief glory of the conquest would redound to Xerxes; but, if the design miscarried, the disgrace would fall upon his generals.
These are the principal heads which furnish the orator with proper arguments in giving advice. Cicero in his oration for the Manilian law, where he endeavours to persuade the Roman people to choose Pompey for their general in the Mithridatic war, reasons from three of these topics, into which he divides his whole discourse; namely, the necessity of the war, the greatness of it, the choice of a proper general. Under the first of these he shows that the war was necessary from four considerations; the honour of the Roman state, the safety of their allies, their own revenues and the fortunes of many of their fellow citizens, which, were all highly concerned in it, and called upon them to put a stop to the growing power of king Mithridates by which they were all greatly endangered. So that this argument is taken from the head of necessity. The second, in which he treats of the greatness of the war, is founded upon the topic of possibility. For though he shows the power of Mithridates to be very great, yet not so formidable but that he might be subdued; as was evident from the many advantages Lu
cullus had gained over him and his associates. In the third head he endeavours to prevail with them to entrust the management of the war in the hands of Pompey, whom he describes as a consummate general for his skill in military affairs, courage, authority, and success, in all which qualities he represents him as superior to any other of their generals whom they could at that time make choice of. The design of all which was to persuade them they might have very good reason to hope for success, and a happy event of the war under his conduct. So that the whole force of his reasoning under this head is drawn from probability. These are the three general topics which make up that fine discourse; each of which is indeed supported by divers other arguments and considerations, which will be obvious in perusing the oration itself, and therefore need not be here enumerated. On the contrary, in another oration he endeavours to dissuade the senate from consenting to a peace with Mark Antony, because it was base, dangerous, and impracticable.
But no small skill and address are required in giving advice. For, since the tempers and sentiments of mankind, as well as their circumstances, are very different and various, it is often necessary to accommodate the discourse to their inclinations and opinions of things and therefore the weightiest arguments are not always the most proper and the fittest to be used on all occasions. Cicero, who was an admirable master of this art, and knew perfectly well how to suit what he said to the taste and relish of his hearers, in treating upon this subject, distinguishes mankind into two sorts the ignorant and unpolished, who always
prefer profit to honour; and such as are more civilized and polite, who prefer honour and reputation to all other things. Wherefore they are to be moved by these different views: praise, glory, and virtue, influence the one; while the other is only to be engaged by a prospect of gain and pleasure. Besides, it is plain, that the generality of mankind are much more inclined to avoid evils than to pursue what is good, and to keep clear of scandal and disgrace than to practise what is truly generous and noble. Persons likewise of a different age act from different principles; young men for the most part view things in another light from those who are older and have had more experience, and consequently are not to be influenced from the same motives. Every nation also has its particular customs, manners, and polity, which give a different turn to the genius of the inhabitants. The speech of Alexander, made to his soldiers before he engaged the Persians, as we have it in Curtius, is finely wrought up in this respect. For, as his army was composed of different nations, the parts of his discourse are admirably well suited to their several views in prosecuting the war. He reminds his countrymen, the Macedonians, of their former victories in Europe; and tells them, that Persia is not to be the boundary of their conquest, but they are to extend them further than either Hercules or Bacchus had done that Bactra and the Indies would be theirs, and that what they saw was but a small part of what they were to possess: that neither the rocks of Illyrium, nor the mountains of Thrace, but the spoils of the whole East were now before them that the conquest would be so easy they would scarce have occa
sion to draw their swords, but they might push the enemy with their bucklers. Then he reminds them of their subduing the Athenians under his father Philip, and the late conquest of Boeotia, the victory at the river Granicus, and the many cities and countries now behind them and under their subjection. When he addresses the Greeks, he tells them, they are now going to engage with those that had been the enemies of their country, first by the insolence of Darius, and afterwards of Xerxes, who would have de prived them even of the necessaries of life, who destroyed their temples, demolished their towns, and violated both their sacred and civil rights. And then directing his discourse to the Illyrians and Thracians, who were accustomed to live by plunder, he encouraged them with the prospect of booty from the rich armour and furniture of the Persians, which they might be masters of with the greatest ease; and tells them, they would now exchange their barren mountains and snowy hills for the fertile country and fields of Persia.
Of Arguments suited to judicial Discourses.
In judicial controversies there are two parties, the plaintiff or prosecutor, and the defendant or person charged. The subject of them is always something past. And the end proposed by them Cicero calls equity, or right and equity; the former of which arises from the laws of the country, and the latter from reason and the nature of things. For at Rome the prætors had a court of equity, and were empowered, in many cases relating to property, to relax the rigour
of the written laws. But as this subject is very copious, and causes may arise from a great variety of things, writers have reduced them to three heads, which they call states, to some one of which all judicial proceedings may be referred; namely, whether a thing is, what it is, or how it is. By the state of a cause therefore is meant the principal question in dispute, upon which the whole affair depends; which, if it stops in the first inquiry, and the defendant denies the fact, the state is called conjectural; but if the fact be acknowledged, and yet denied to be what the adversary calls it, it is termed definitive; but if there is no dispute either about the fact or its name, but only the justice of it, it is called the state of quality ; as was shown more largely before. But I then considered these states only in a general view, and deferred the particular heads of argument proper for each of them to this judicial kind of discourses; where they most frequently occur, and from which examples may easily be accommodated to other subjects. And this is what I am now particularly to treat of.
All judicial causes are either private or public. They are called private, which relate to the right of particular persons; and they are likewise called civil causes, as they are conversant about matters of property. Public causes are those which relate to public justice and the government of the state; which are also called criminal, because by them crimes are prosecuted, whether capital or those of a less heinous nature. I shall take the heads of the arguments only from this latter kind, because they are more copious and easy to be illustrated by examples: from which