Lucius Seneca - Yale Required Reading - Collected Works (Vol. 2)

"When I have acquired a thorough understanding of the business and the case, it immediately becomes my consideration what ground there may be for doubt. For of all points that are disputed among mankind, whether the case is of a criminal nature, as concerning an act of violence; or controversial, as concerning an inheritance; or deliberative, as on going to war; or personal, as in panegyric; or argumentative, as on modes of life; there is nothing in which the inquiry is not either what has been done, or is being done, or will be done, or of what nature a thing is, or how it should be designated.

"Our cases, such at least as concern criminal matters, are generally defended by the plea of not guilty; for in charges of extortion of money, which are the most important, the facts are almost all to be denied; and in those of bribery to procure offices, it is seldom in our power to distinguish munificence and liberality from corruption and criminal largess. In accusations of stabbing, or poisoning, or embezzlement of the public money, we necessarily deny the charge. On trials, therefore, the first kind of cases is that which arises from dispute as to the fact. In deliberations, the discussion generally springs from a question as to what is to be done, rarely about anything present or already done. But often the question is not whether a thing is a fact or not, but of what nature it is; as when the consul, Gaius Carbo, in my hearing, defended the case of Opimius before the people, he denied no circumstance of the death of Gaius Gracchus, but maintained that it was a lawful act for the good of his country; or, as when Publius Africanus replied to the same Carbo, ( then tribune of the people, engaging in political affairs with very different views, 14and asking a question about the death of Tiberius Gracchus, ) 'that he seemed to have been lawfully put to death.' But every thing may be asserted to have been done lawfully, which is of such a kind that it may be said that it ought to have been done, or was properly or necessarily done, or done unawares, or by accident. Then the question, 'what a thing should be called,' arises when there is a dispute by what term an act should be designated; as was the great point of dispute between myself and our friend Sulpicius in Norbanus's case; for though I admitted most of the charges made by him on the other side, I still denied that treason had been committed by Norbanus; on the signification of which word, by the Apuleian law, 15the whole case depended. And in this type of cases some lay it down as a rule, that both parties should define clearly and briefly the term that gives rise to the question. This seems to me extremely puerile; for it is quite a different thing from defining words, when any dispute arises among the learned about matters relating to science; as when it is inquired, what is an art, what is a law, what is a state? On which occasions reason and learning direct, that the whole force of the thing which you define should be expressed in such a manner that there be nothing omitted or superfluous; but this neither Sulpicius did in that case, nor did I attempt to do it; for each of us, to the best of our abilities, enlarged with the utmost copiousness of language upon what it was to commit treason. Since, in the first place, a definition, if one word is objectionable, or may be added or taken away, is often wrested out of our hands; and in the next, the very practice itself savours of school learning and almost puerile exercise; and besides, it cannot penetrate into the mind and understanding of the judge, for it glides off before it has made any impression.

"But in that kind of cases in which it is disputed of what nature any thing is, the contest often arises from the interpretation of writing; when there can be no controversy but about something that is doubtful. For even the case, in which the written letter differs from the intention, involves a type of doubt, which is cleared up when the words which are wanting are supplied; and such addition being made, it is maintained that the intention of the writing was clear; and if any doubt arises from contradictory writings, it is not a new kind of controversy that arises, but a case of the former sort is doubled; 16and this can either never be determined, or must be so determined, that by supplying the omitted words, the writing which we defend, whichever of the two it is, may be rendered complete. Thus, of those cases which arise from a controversy about a writing, when anything is expressed ambiguously, there exists but one kind. But as there are many sorts of ambiguities, (which they who are called logicians seem to me to understand better than other men; while those of our profession, who ought to know them full as well, seem to be ignorant of them,) so that is the most frequent in occurrence, either in discourse or writing, when a question arises from a word or words being left out. They make another mistake when they distinguish this type of cases, which consist in the interpretation of writing, from those in which it is disputed of what nature a thing is; for there is nowhere so much dispute respecting the exact nature of a thing as in regard to writing, which is totally separated from controversy concerning fact. There are in all, therefore, three sorts of matters, which may possibly fall under doubt and discussion; what is now done, what has been done, or what is to be done; what the nature of a thing is, or how it should be designated; for as to the question which some Greeks add, whether a thing be rightly done, it is wholly included in the inquiry, what the nature of the thing is.

"But to return to my own method. When, after hearing and understanding the nature of a case, I proceed to examine the subject matter of it, I settle nothing until I have ascertained to what point my whole speech, bearing immediately on the question and case, must be directed. I then very diligently consider two other points; the one, how to recommend myself, or those for whom I plead; the other, how to sway the minds of those before whom I speak to that which I desire. Thus the whole business of speaking rests upon three things for success in persuasion; that we prove what we maintain to be true; that we conciliate those who hear; that we produce in their minds whatever feeling our cause may require. For the purpose of proof, two kinds of matter present themselves to the orator; one, consisting of such things as are not invented by him, but, as appertaining to the case, are judiciously treated by him, as deeds, testimonies, covenants, contracts, examinations, laws, acts of the senate, precedents, decrees, opinions of lawyers, and whatever else is not found out by the orator, but brought under his notice by the case and by his clients; the other, consisting entirely in the orator's own reasoning and arguments: so that, as to the former head, he has only to handle the arguments with which he is furnished; as to the latter, to invent arguments likewise. Those who profess to teach eloquence, after dividing cases into several kinds, suggest a number of arguments for each kind; which method, though it may be better adapted to the instruction of youth, in order that when a case is proposed to them they may have something to which they may refer, and from whence they may draw forth arguments ready prepared; yet it shows a slowness of mind to pursue the rivulets, instead of seeking for the fountain-head; and it becomes our age and experience to derive what we want to know from the source, and to ascertain the spring from which everything proceeds.

"But that first kind of matters which are brought before the orator, ought to be the constant subject of our contemplation for general practice in affairs of that nature. For in support of deeds and against them, for and against evidence, for and against examinations by torture, and in other subjects of that sort, we usually speak either of each kind in general and abstractedly, or as confined to particular occasions, persons, and cases; and such commonplaces ( I speak to you, Cotta and Sulpicius ) you ought to keep ready and prepared with much study and meditation. It would occupy too much time at present to show by what means we should confirm or invalidate testimony, deeds, and examinations. These matters are all to be attained with a moderate share of capacity, though with very great practice; and they require art and instruction only so far, as they should be illustrated with certain embellishments of language. So also those which are of the other kind, and which proceed wholly from the orator, are not difficult of invention, but require perspicuous and correct exposition. As these two things, therefore, are the objects of our inquiry in cases, first, what we shall say, and next, how we shall say it; the former, which seems to be wholly concerned with art, though it does indeed require some art, is yet an affair of but ordinary understanding, namely, to see what ought to be said; the latter is the department in which the divine power and excellence of the orator is seen; I mean in delivering what is to be said with elegance, copiousness, and variety of language.