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Hermogenes of Tarsus is said to have flourished during the time of Marcus Aurelius, AD 161-180, making this piece a part of what is sometimes called the second sophistic (from the early part of the first century until the death of Nero, AD 230). He is said to have been a prodigy who burned out early (by the age of 25). "On Stasis" is a difficult piece to read for many reasons. It is very technical in the sense that it introduces an entire lexicon, which means you have to learn a collection of new words and then pay close attention as he explains how the words interact. The piece also presumes its context, which makes if very difficult for us to fully understand how the advice is supposed to be received, since we don't share that context. This difficulty is exacerbated by the weird examples, full of adulterous wives and prostitute sons. One of the only clues Hermogenes drops as to context is when he uses the expression "themes for exercises" early on. This expression suggests that what we are looking at is advice for those who are practicing rhetoric, specifically the gymnismata or later exercises that involved making speeches on imaginary or historical themes. These practice speeches are known as declamations, and declamation was both a pedagogy and a leisure activity during the early years of the Christian era. While declamation was a pedagogy, and therefore would have been experienced as preparation for "real" rhetoric in the forum and the senate, in Rome and in the provinces, it was also appreciated as an art form and so was an activity that educated men practiced for the sake of self-promotion and entertainment. It had a practical purpose, in other words, but it came to be self-contained and self-referential. It became a world unto itself--a form of literature.]
The translation you are about to read is Malcolm Heath's. I've reproduced it here so I could annotate it, using for the most part yellow highlighting (turn it off) to draw attention to specific passages. In some places I've added very brief comments in [square brackets]. For those of you even more pressed for time than I am, here's a crib on stasis, and a crib on asystasis.
Heath, Malcom. Hermogenes on Issues: Strategies of Argument in Later Greek Rhetoric.
Philostratus. Lives of the Sophists.
Seneca the Elder. Declamations.
Wooten, Cecil. Hermogenes' on Types of Style.
Anderson, Graham. The Second Sophistic: a Cutlural Phenomenon in the Roman Empire.
Bonner, Stanley. Roman declamation in the late Republic and early Empire.
Bowersock, G.W. Approaches to the second sohistic.
--. Greek sophists in the Roman Empire.
Borg, Barbara E. Paideia: The world of the Second Sophistic.
Russell, D.A. Greek Declamation.
Winterbottom, Michael. Roman Declamation.
There are many important elements which constitute rhetoric as an art. These have of course been grasped from the beginning and set in order by practice over time, and their practical usefulness, both in deliberative and in judicial contexts and everywhere else, is manifest. But the most important, in my view, is that concerned with division and with demonstration. By this I do not mean the division of kinds into classes, or of wholes into parts; that is another major component of rhetoric, but is not my immediate concern. The present discussion deals with the division of political questions into what are known as heads. This subject is almost identical with the theory of invention, except that it does not include all the elements of invention.
First of all, we must state what is meant by a political[odd appelation] question. It is a rational dispute on a particular matter, based on the established laws or customs of any given people, concerned with what is considered just, honourable, advantageous, or all or some of these things together. It is not the function of rhetoric to investigate what is really and universally just, honourable, etc.
Such a dispute must be concerned with persons and with acts. There is of course a very great variety of these. An understanding of this variety makes it easy to grasp the divisions of questions into heads, and the number of divisions which are possible in general. As to persons, some can provide a basis for argument, and some cannot, but are place-holders for person. Those which can provide a basis for argument are, in descending order of argumentative force:
Clearly, these may occur in questions both singly and in multiple combinations; for example, Demosthenes was of course a father, a politician, an ambassador, and indeed even a soldier. This is the reason why determinate proper names have greater force. But one should assess the force of each individually, and use it as occasion allows.
These are the persons which provide a basis for argument. One should adhere to the topics of encomium and use whichever are relevant. Those which do not provide a basis for argument are:
There is a variety of acts, as well as of persons (starting again with those which afford the strongest basis for argument):
An exactly similar case is this: The father of a dissolute son goes missing; the son is charged with homicide. I realize that in some people's view there is no act to be judged in this case. But I doubt whether anyone would supply an explanation and what is known as a 'gloss' where there is no act to be judged; and the dissolute son will, in my view, have something to say in his own defence. In my view, it is only an equivalent act which provides no basis for judgement; e.g.: A poor man and a rich man both have beautiful wives, and each simultaneously apprehends the other coming out of his house; they bring reciprocal charges of adultery against each other. In this case the persons differ, and so provide a basis for argument, but the acts do not because they are equivalent.
Next we may infer from these points which questions have issue and can be divided, and which do not. Questions have issue if: (i) they involve either both a person and an act to be judged, or at least one of these; (ii) there are persuasive arguments on both sides which are different and have probative force; (iii) the verdict (which lies with the jury) is neither self-evident nor prejudiced, but can be brought to a conclusion.
If any one of these conditions is not satisfied, the question lacks issue. Questions which lack issue are to be classified as follows:
These would not be valid questions. There are other classes of question which are close to those lacking issue, but which are nevertheless used as themes for exercises:
This classification is not necessarily exhaustive.
We must now discuss the division of questions which do have issue. There is no point discussing the class of problems and their mode at present; the reason for learning classes and modes is to ensure that we use the appropriate styles of discourse when treating problems in exercise -- i.e. judicial subjects in a judicial style, deliberative subjects in a deliberative style, and epideictic subjects in an epideictic style, and each in a style suitably adapted to the subject-matter.
But it is of course impossible for anyone who has not yet studied the pure division of questions into their so-called heads, or who is unfamiliar with what are known as the issues of problems, to have a sound grasp of the things I have just mentioned. So it is completely senseless to teach the theory of types of style before these other subjects, especially since if we were to try to say anything about types of style at this point the discussion of the incidental material would be longer than that of our main subject. The theory of styles of discourse and their respective use is the subject of a separate and far from trivial treatise--in fact, a very important and advanced one. So for the present we should confine our discussion to division into heads.
Correct division is made possible by an understanding of the variety of persons and acts, and their force, and also of what is known as the issue of the question. The question of the origin of the term 'issue' (whether it is derived from the fact that the opposing parties 'take issue' with each other, or whatever) is one I leave for others to argue out. But leaving aside whether this is a common or indeed contingent name for all questions, to help us understand this subject I will first set it out here systematically, and then begin the division of heads with conjecture-- inevitably, as will become clear; then I will discuss the others in turn. The systematic presentation is as follows.
For any given question, assuming it has issue, one must first consider whether the matter to be judged is or is not clear.
If the matter is unclear, the issue is one of conjecture. Conjecture is a proof of the existence of an act that is unclear from a sign that is clear; e.g.: A man is apprehended burying a recently slain corpse in a remote place; he is charged with homicide. On the basis of the burial, which is clear, we investigate an act that is unclear, i.e. who committed the homicide? [interpretation of signs]
If the matter to be judged is clear, one must next consider whether it is complete or incomplete. By 'incomplete' I mean that when some deficiency is supplied a description is immediately available, and the act contains no further scope for enquiry. In such a case, the issue is one of definition. The issue of definition is an enquiry into the description of an act that is partially performed and partially deficient with regard to the completeness of its description. E.g.: A man steals private property from a temple; the legal penalty for temple-robbery is death, while the legal penalty for theft is twofold repayment; the man is prosecuted as a temple-robber, but claims to be a thief. If one adds that the property is sacred, the man is clearly a temple-robber, and the act contains no further scope for enquiry.
If the matter to be judged is clear and complete, the issue of the enquiry is one of the quality of the act, e.g. whether it is just, lawful, advantageous, or one of their opposites. The generic name for this is quality, but it may involve enquiry either into an act or into a verbal instrument. If it is concerned with a verbal instrument, the issue is legal; if it is concerned with an act, it is logical.
The logical issue can be divided in two: the enquiry may be concerned with a future act, or with a past act. If it is concerned with a future act, the issue is practical; for a practical dispute is one concerned with a future act--whether this should or should not happen, whether or not to grant this; e.g.: The Athenians deliberate whether they should bury the Persian dead at Marathon.
If the act being judged has already been performed [past], the generic term (analogous to 'quality' above) 'is juridical. Again, this can be divided in two as well: the defendant either will or will not concede that the act was a wrong and in some respect forbidden. If he denies altogether that the act was forbidden, the issue is counterplea; for counterplea arises out of the prosecution of some act not generally held to be actionable as if it were actionable; e.g.: A farmer disinherits his son for studying philosophy.
If the defendant concedes that the act in question was a wrong, the generic name is counterposition. This is divided as follows. The defendant will either accept all responsibility for what happened himself, or will transfer it to some external factor. If he accepts responsibility himself he makes a counterstatement; a counterstatement arises when the defendant, while conceding that he has done some wrong, sets against that some other benefit achieved as a result of that same wrong. If he transfers responsibility to some external factor, it may be to the actual victim, or to a third party. If to the victim, it is a counteraccusation; a counteraccusation arises when the defendant admits that he has done some wrong, but in turn accuses the victim of deserving to suffer what he did. If responsibility is transferred to a third party, a division can again be made: the defendant, while admitting that he has done some wrong, transfers responsibility either to an act or person capable of being held to account, which is a transference, or to one not capable of being held to account, but wholly unaccountable, which is a plea of mitigation. An example of transference: An ambassador is to set out within thirty days on receipt of , drachmas from the treasurer for travelling expenses; he does not receive them, and for this reason does not set out; he is brought to trial. An example of a plea of mitigation: The ten generals who fail to recover the bodies after a sea-battle because of a storm, and are brought to trial. (If anyone is inclined to dispute these definitions--I mean, of transference and mitigation--I will discuss them in greater detail in the section on counterposition.)
The logical issues can be recognized from these points; I now turn to legal issues.
The enquiry must be concerned with a verbal instrument; by Verbal instrument' I mean laws, wills, decrees, correspondence, definite proclamations, and in short everything given verbal expression. Such an enquiry may be concerned with one verbal instrument or several (by 'several' I mean to include instruments divided into two sections, where each of the two parties is seen to rest its case on one of the sections). If the enquiry is concerned with a single instrument (either about its single intent, or with one of its sections), the issue is one of letter and intent, letter and intent occurs when one party (usually the prosecution) advances the letter of the law while the other appeals to its intent; e.g.: It is a capital offence for an alien to ascend the city walls; during a siege an alien ascends the city wall and fights heroically; he is prosecuted under the law. Alternatively, one may compare an act with the letter by equating what is not made explicit in the law with what is made explicit; this is an assimilation, assimilation being the comparison of an act not made explicit in writing with what is explicit, where someone equates what is not explicit with what is. E.g.: The son of a (female) prostitute may not speak in the assembly, an injunction is sought to prevent the son of a man who has prostituted himself from speaking.
If the enquiry is concerned with two or more verbal instruments, or one divided into two sections, the issue is a conflict of law. A conflict of law arises when two or more verbal instruments, or one divided into two parts, which are not inherently contradictory come into conflict because of special circumstances. In general, this is a double enquiry into letter and intent; e.g.: A disinherited son shall not have a share in his father's property, a man who remains On board a ship abandoned during a storm shall become the owner of the ship; a disinherited son remains on board a ship abandoned during a storm, but his title is contested on the grounds that the ship belonged to his father. An example of conflict of laws arising from the division of one instrument: A victim of rape may choose either marriage or the death of the rapist; a man rapes two young women at the same time; one chooses to marry him, the other chooses his death.
The meaning of ambiguity is clear from the term. Ambiguity is a dispute concerning a verbal instrument arising from accentuation or syllabification. From accentuation, e.g.: If a prostitute wears gold ornaments, demosia esto; a prostitute is arrested wearing gold ornaments; she claims that the gold ornaments become public property (reading the law with the accent demosia), but the prosecution maintains that it is not the gold ornaments but the woman herself who becomes public property (reading with the accent demosia). Concerning syllabification, e.g.: A man has two sons, Leon and Pantaleon; in his will he writes 'I name as heir to my property pantaleon; each lays claim to the whole property, one reading Pantaleon as a single word ('Pantaleon'), the other dividing fanta and Leon ('in its entirety, Leon').
That is how to recognize these issues; but objection is different, and arises when the enquiry is about whether the case should be allowed to come to trial. In objection you will not, in the first instance, enquire whether something exists (as in conjecture), or what the thing which occurred was (as in definition), or the quality of the thing (as in the others), but simply whether there should be an enquiry about any of these points; it is a procedural exception. It has two species: one is documentary, and the enquiry is based on a verbal instrument; the other is non-documentary. The documentary type seeks to restrain the primary case by means of a procedural exception based on a verbal instrument, on which the enquiry focuses; e.g.: The same charge shall not be tried twice; a man is tried for homicide, and acquitted; later, when he consults an oracle, the god replies 'I do not give oracles to murderers'; he is charged again. The issue of the first argument is letter and intent; there then follows a conjectural argument as to whether he had committed homicide.
The non-documentary type likewise seeks to restrain the primary case by means of a procedural exception based on a verbal instrument, but the enquiry here is not concerned with the instrument, but with one of the circumstances of the act--i.e. place, time, person, cause, manner. We concede the act as such, but find fault with one of these by way of objection; e.g.: Both an adulterer and an adulteress may be summarily killed; a man kills the adulterer alone, but subsequently discovers his wife weep- ing at the adulterer's tomb and kills her; he is charged with homicide. It is of course the time and place with which we find fault in this case. This is how we recognize the so-called issues. We must now discuss the division of each. It should be understood that what will be said about conjecture (which will necessarily be discussed first) will apply to almost everything that follows; the discussion will naturally therefore be comparatively extensive.
When conjecture has both person and act subject to judgement it is divided thus: exception (in some cases); demand for evidence; motive; capacity, sequence of events; counterplea; objection; transposition of cause; persuasive defence; common quality. Exception arises in four ways:
If the exception is based on a verbal instrument, it is powerful and there is a complete procedural exception; otherwise it is weak, but gives some measure of assistance to the user. An example of one based on a verbal instrument, which as I say is a complete objection and procedural exception: A man tried for homicide is acquitted; subsequently he consults an oracle, and the god replies 'I do not give oracles to murderers'; he is brought to trial again. But 'the law forbids a second trial on the same charge'; so he enters an exception, and the first question is legal, based on the exception.
Demand for evidence: this is twofold: either there are or there are not witnesses.
(i) E.g.: A girl's mother told her daughter's suitor that the girl would die sooner than be married to him; the girl died with symptoms of poisoning; when the father interrogates the servant-women he learns nothing more about the poisoning, but is told of his wife's adultery with the suitor; he charges the wife with poisoning. Here there are witnesses, i.e. the servant-women. She will not, therefore, demand witnesses, but will attack them, arguing that they are untrustworthy, since 'slaves are by nature hostile to their masters'; and 'since we accept that even free people are not always trustworthy, we should hardly trust slaves'; one could find more points. One should also oppose witnesses to witnesses, and examine which are more trustworthy (as Demosthenes does in Against Conon). This should generally be your technical principle regarding witnesses: either attack them on the grounds that they give evidence out of partiality or enmity, or because of personal relationships, or for private gain, or because they are untrustworthy because of their age.
(ii) If there are no witnesses, the defendant will demand them, using the following points: person (e.g. who gave it?), act (what did he give?), place (where?), manner (how?), time (when?), cause (why?); he will use all of these, or those which are relevant. The prosecutor will argue that proof from facts is more trustworthy than that from witnesses: 'For facts cannot be persuaded, and do not seek to ingratiate themselves with anyone by what they say, as witnesses often do; but as they are in reality, so they appear under examination.
Motive and capacity arise from the attributes of the person, i.e. the topics of encomium. When the person is determinate, more or less all of the topics will be relevant; otherwise, we will use those consistent with the arguments we discover. E.g. a rich young man: here you have his age and his fortune as bases for arguments, and their concomitants. The topics of encomium are of course as follows: birth, rearing, education, age, physical and spiritual nature, occupations, achievements (which is the strongest head), fortune (e.g. rich, poor, etc.). These weigh on both sides when forming the base of an argument in either part (i.e. both in motive and in capacity), but some carry more weight in one than in the other; e.g. fortune is more apposite in capacity, just as age is in motive. Seeing that this is so, one should elaborate these points wherever one of them seems more apposite.
One should examine the motive and capacity not only of those persons brought to trial, but of all those given in the problem. E.g. the prosecutor of the rich youth who maintains disinherited sons and is charged with conspiring to establish a tyranny is stronger when the quality of disinherited sons is examined. So in all conjectures one should consider all the persons about whom a judgement can be formed. Sequence of events generally belongs to the prosecutor; it arises, and can be amplified, from the same points as the demand for evidence (i.e. who? what? where? how? when? why?).
If this belongs to the prosecutor only, all the remaining heads except objection belong to the defendant, if there is the opportunity to use them all. But if the sequence of events is common (and a conjecture of this kind is occasionally found), the remaining heads too will be common to both. An example of conjecture with common sequence of events: A charge of conspiring to establish a tyranny lay against a certain man; his brother, having fought heroically, asked as his reward that the indictment be struck out; this was granted; the man did establish a tyranny, the brother overthrows him, and is charged with complicity. The prosecutor will exploit the striking out of the indictment and the circumstances surrounding that, while the defendant will exploit the killing and the circumstances surrounding that; and each party must refute the arguments of the other.
It is not possible for the sequence of events to belong to the defendant alone. Counterplea is not always relevant. If one is brought to trial on the basis of one's own acts counterplea will certainly be relevant; but if on the basis of other people's acts, it will not. It runs along the lines: This is permissible, and not forbidden.' Example: A rich youth maintains all disinherited sons, and is charged with conspiring to establish a tyranny. He will argue that it is permissible to maintain any people one wants.
Objection is always opposed to counterplea, not just in conjecture but wherever it is found. If one of the opposed parties uses either one of these (I mean, counterplea and objection), the other will certainly use the other. Objection may be by refutation or by counter-representation. Refutation is forcible--one will deny that the act is in fact permissible-- while the counter-representation proves that even if it is permissible, it is not permissible in this way and on these conditions. E.g.: An adolescent who uses cosmetics is charged with prostitution. The prosecutor will insist forcibly that it is not permissible for males to wear cosmetics and then that, even if it is permissible, it is not permitted in this way and on these conditions. It is not easy to say which should be used first (refutation or counter-representation); the order varies according to the nature of the facts. One should beware that in certain cases denying from the outset that something is permissible may be extremely arrogant; it can be stronger placed second, and one should proceed in whichever way the requirements of the case demand.
Transposition of cause arises in relation to the sequence of events. That is based on words, acts, or feelings:
One should realize that all these are found in all conjectures, but each is elaborated in the appropriate one.
If the trial arises out of what others have done the transposition of cause will be speculative and (in a sense) self-contradictory. E.g.: The enemy erect a statue of a triple-hero; he is charged with treason. He will say that they erected it out of admiration for him, or to set an example to their own people, or to appease him, or wanting to excite envy against him. Not all of these can be true, and this is why I say that speculative glosses should be found in a conjecture of this kind. If a man is brought to trial because of his own acts, he will say either one thing, or several things which are at least consistent; e.g.: A man begging at night is charged with robbery. He will say that he did it at night because he was ashamed, and because he does not want to make himself unpopular by begging from those he meets during the day, and because people are more generous then, being relaxed in attitude, and so forth. These are many reasons, but they are not mutually inconsistent.
The persuasive defence is an inversion of the sequence of events. The points which the one party uses as indications that something is the case, the other party will use as indications that it is not the case. E.g.: "Where you look and cry, you will establish yourself as tyrant': 'But if I had been intending to be a tyrant, I would not have looked and so exposed my intentions. [huh?]
This head is omitted in some cases. It is omitted whenever the indications on the basis of which the case is brought are necessary concomitants of the act about which judgement is being made; e.g. it is necessary for someone conspiring to establish a tyranny to prepare arms. Consider, then: Pericles' house is struck by lightning, and a thousand suits of armour are found; he is charged with conspiring to establish a tyranny.
He cannot say here: 'If I had been intending to be a tyrant, I would not have prepared arms.' In these cases the prosecutor will sometimes argue out the sequence of events in the manner of a definition, as in the case of the adolescent using cosmetics and charged with prosecution; the prosecutor will argue forcibly that using cosmetics is prostitution in itself. Here too the plausible defence is omitted, but in its place one should introduce into the corresponding head the argument that the facts are not convertible. This is the only point on which one can insist here; e.g.:
Those who intend to be tyrants prepare arms, but it does not follow that those who prepare arms are conspiring to establish a tyranny, for it is possible to prepare arms for some other purpose.' And: 'Male prostitutes use cosmetics, but it does not follow that men who use cosmetics are necessarily also prostitutes; for it is possible to use cosmetics for some other reason.' And he will say, obviously, all the things that are found also in the transposition of cause.
Common quality are epilogues and second speeches. They arise in all questions, not just in conjecture. Prosecutors, after their proofs, run through the charge in the manner of a common topic (e.g. against a tyrant, a brothel-keeper, or whatever the charge may be) and summarize each of the relevant points, as Demosthenes does, e.g.: 'I want to draw together the charges; I have shown that he has made no true statement' etc.; defendants too summarize the points in a similar way, but make a different use of them, appealing for pity and stirring up emotion. Here the presentation of children, wives, relatives, and so forth is useful; the prosecutor will of course rebut these things by an argument from advantage. The so-called heads of purpose are common to both sides here, i.e. legality, justice, advantage, feasibility, honour.
In general, epilogues are developed from the same topics as prologues, and have the same force. Both are introduced for the sake of emotion (e.g. fear, anger, pity, envy, etc.). They differ in that prologues prepare for the acceptance or rejection of a given emotion, while in epilogues the heads are used to intensify or moderate it, and to enhance what is already complete. Epilogues and prologues also differ in that epilogues are rhythmically free, and advance each of the arguments discovered at some length, not briefly as in the prologues; but this will be discussed in more detail in my treatment of the prologue.
This is the division of a complete, simple conjecture. But some conjectures are incomplete, and also there are double conjectures, complete and incomplete, in which we will use a double division as well. We must now discuss these.
An incomplete case based only on acts has issue; this is when the person provides no grounds for judgement and the act is single. E.g.: A man is apprehended burying a recently slain corpse in a remote place; he is charged with homicide. This does not have motive and capacity, but is divided under all the other heads, just as in a complete case.
An incomplete, simple conjecture based only on person cannot arise in my view, this will be very clear, I think, if one considers what was said a little while ago about acts which provide grounds for judgement. Some have posited as an example of an incomplete simple case, claiming that only the person is being judged: The father of a dissolutes son goes missing; the son is charged with homicide. First I will ask them whether there is no sequence of events here. There is: the disappearance of the father; this is a matter not of person but of act. And will we not require a transposition of cause from him? This too--otherwise, what will the defence be? So how can there be a case if there is no act? Further, will he not use the persuasive defence? He will, in my view. So how is such a case incomplete?
However, the facts here have less force than in the case of the man burying the recently slain corpse. For in all conjectures the sequence of events has less force when someone is brought to trial because of what others have done, especially when it is not directly referred to him, as in the case of Archidamus being tried for receiving bribes because Pericles recorded in his accounts an expenditure of fifty talents for 'necessary expedients'. So there cannot be a simple conjecture based only on persons, in my view, although there can be a double one. But first we must discuss the complete double conjecture.
A complete double case arises when there are two persons and two acts which provide grounds for judgement; e.g.: Aeschines and Demosthenes, on returning from the embassy to Philip, bring reciprocal charges of receiving bribes against each other, since the one (Demosthenes) is found burying gold, the other (Aeschines) is found to have composed a defence on a charge of ambassadorial corruption. Here the demand for evidence is omitted, since it is equally balanced; but the other heads should be used in two ways by both sides; e.g.: 'I would not have wished to act corruptly as ambassador for such-and-such a reason, but you would have done for such-and-such a reason,' and likewise in the other heads we shall develop arguments by opposing one thing to another. Dividing and presenting one's defence through all the heads in one section, and in another presenting one's accusation under the same heads lacks competitive energy and is extremely tedious; so one should interlink them.
A double, incomplete case based on acts is when only the acts provide grounds for judgement; e.g.: Two politicians go on an embassy to a tyrant and on their return bring reciprocal charges of receiving bribes against each other, since the one is found burying gold, and the other is found to have composed a defence on a charge of ambassadorial corruption. Here the persons are equivalent, and so provide no basis for argument; the acts differ, and so do provide a basis for argument. Again, therefore, motive and capacity are omitted, but the case will be divided into the other heads just like the complete double case by opposed arguments.
A double conjecture based only on persons arises when only the persons provide grounds for judgement; e.g.: A hero dies with symptoms of poisoning; he had a stepmother and a captive concubine, who bring reciprocal charges against each other. Here only motive and capacity are the bases of argument, these being by nature characteristic of person, and all the other heads are equally balanced.
There are in addition to these three other classes of double conjecture, which we call conjunct incident, pre-confirmatory, and co-confirmatory. Incident conjecture arises when the transposition of cause raises a whole question, and it is necessary to give that too a complete division. E.g.: A man convicted of treason is to be held under arrest by the general until he reveals his accomplices; a general convicted of treason is held in the house of a fellow-general, who kills him, alleging that he had found him with his wife; the second general is charged with complicity. Here after the sequence of events the defendant uses the transposition of cause that 'I killed an adulterer'; so a second question is encountered: is it probable that he committed adultery while a prisoner and is it probable that the wife would give herself to such a man? After the division of this question, the defendant will come back again to the persuasive defence of the original conjecture.
Pre-confirmatory conjecture arises when in advance of the main question the truth or falsity of some other fact requires prior confirmation by conjecture. E.g.: A rich general arrested the three sons of his poor enemy as traitors; he executed two, who made no confession under torture, and the third, who confessed to treason before torture; the father takes no action, and the general charges him with complicity. Each side has something to establish first: the rich man that they were traitors, the poormanthat they were not; then, granting by concession that they were traitors, the poor man will offer a defence on his own behalf.
Co-confirmatory conjecture arises when the indications of the act are established through each other. E.g.: Prisoners are to be released for the Thesmophoria; a man who suspects his servant of adultery with his wife places him under restraint during an absence abroad; the servant is freed by the wife for the Thesmophoria and absconds; subsequently the man is found murdered, and the wife is charged with complicity. The man's having been killed by the servant is established by the adultery, the adultery is established by the servant's having killed him; in general, they are mutually supporting--in conjunction, of course, with the other points (the man's suspicion, the wife's freeing him, and so forth). This differs from pre-confirmatory conjecture, because there the questions are separate from each other, but here they are all established by means of each other.
In addition to these there is conjecture based on intention, which is argued purely on intention, the act and person both being clear, e.g.: A stepmother wounded her son and killed her stepson, apparently mad; she recovers and is charged with homicide. A conjecture of this kind differs from a plea of mitigation, because there the factor to which responsibility is transferred is agreed upon (e.g. pity, torture, etc.), while here the question is whether she was or was not mad. It might be possible to discover other classes of conjecture, but there is no point going into endless detail. In my view, whatever other kind there may be will be found to be some kind of combination of these; clearly, the division in those cases will not be difficult for anyone who has examined these kinds.
The division of definition is: presentation; definition; counterdefinition; assimilation; legislator's intention; importance; relative importance; one of the counterpositions (in some cases); if this is relevant, objection and counterplea will be found to follow immediately, then quality and inten- tion.
The presentation is actually the sequence of events.
The definition distinguishes the act, and arises from the things passed over in the sequence of events. E.g.: A philosopher persuades a tyrant to abdicate and claims the reward. The presentation: 'I put an end to the tyranny, and should receive a reward.' (Clearly, he will amplify this statement from the concomitants of the sequence of events.) The definition from what is passed over: 'This is not tyrannicide'--which is defined as the thing which is passed over, i.e. killing him.
The counterdefinition is in turn based on what has been done, e.g.: 'No, it is putting an end to the tyranny.'
The assimilation draws both together; it is of course the person claiming the reward who will argue that these do not differ from each other. In general, assimilation in all cases opposes definition in just the same way that we have said counterplea opposes objection; whichever of them one party uses, the other party will certainly use the other.
Legislator's intention will be argued out by both sides for their own advantage.
Importance will show that what has occurred is important.
Relative importance: that it is in fact a greater thing to put an end to tyranny without slaughter and riot and disorder than with them.
The counterposition is not relevant in this example, but is often found in other questions; e.g.: A man finds a eunuch with his wife and kills him as an adulterer; he is charged with homicide. After the question who is an adulterer has been concluded through the points already mentioned, he will make the counteraccusation that he deserved to die. Necessarily the objection will follow, i.e. that he should have brought the man to trial and accused him; and once the objection has been found, there will also be a counterplea, that it was legitimate.
Quality is based on the concomitants of person: if the person is determinate, obviously from all the topics of encomium; if indeterminate, then if it is one of the persons which can be judged (e.g. father, or one of those mentioned already in the section on person) we will consider the concomitants in our speech; if wholly indeterminate, we will base on the act in this case a conjectural argument about what he was in the past and will be in the future if acquitted or convicted (for we will argue about quality on both sides).
Intention will likewise be used as a basis for argument by both parties: with what intention did he do such-and-such, and with what intention does he accuse or oppose, and so forth.
The common quality will be argued out here in conjunction with quality of person and intention.
As there are several classes of conjecture, so too of definition. The one already discussed is simple, the others are double.
First is that called counterdescription, when the defendant opposes one description to another. E.g.: A man steals private property from a temple, and is brought to trial as a temple-robber; he claims to be a thief, and requests the penalty of twofold repayment. Just as with double conjee- tures, you will divide this by doubling the heads and opposing head to head; e.g.: You are a temple-robber, not a thief; for theft is such-and-such, and temple-robbery is such-and-such,' and so on for the rest. The defendant will use the argument in a similar way, but inverting it.
Second is that named by inclusion, when the defendant offers a counterdescription and the prosecutor says that he is liable under both descriptions. This is quite similar to counterdescription; we will explain the difference by giving an appropriate example: A man serving as ambassador places his daughter in the care of the general; he rapes her; on his return, the father charges him with harming the public interest; the general offers to pay the , drachma fine laid down for a rapist. Here when the defendant says 'I am a rapist, but have not harmed the public interest,' the prosecutor says that he is liable to both charges (i.e. both for rape and for harming the public interest), since if he denies that the other committed rape, of course he acquits him of harming the public interest; if there is no rape, of course there is no crime against the public interest either. For this reason, the two are interlinked; for it is not possible to bring an accusation of harming the public interest if he acquits him of rape. Demosthenes did this in Against Meidias; when Meidias maintains that there was an assault and a private wrong rather than a crime against the public interest respecting the festival, Demosthenes draws the two together (the assault and the crime with respect to the festival), to avoid undermining the crime with respect to the festival by dismissing the assault; for unless the assault is established in advance, the crime with respect to the festival does not stand up either. But in counterdescription the speaker rejects one description ' i (e.g.: You are not a thief, but a temple-robber'). The difference is that there the act attends on the charge by nature (e.g. a temple-robber must of necessity be a thief, since a temple-robber is of course a thief of sacred property); but being a rapist does not follow on harming the public interest, since it is possible to harm the public interest in other ways. So here the prosecutor will include both in his speech, there he distinguishes one from the other. So this case has this head in its division over and above counterdescription, and the division is of course different as compared to counterdescription for this reason.
Third is the double according to person. It arises when an act has been performed as a whole by two persons, or in some other way has to do with two persons. E.g.: Sons succeed to priesthoods; a man who has a son fights heroically and requests to take over the priesthood of another man, who also has a son; this is granted; both men die, and the sons contest the priesthood. The question is, who is the son of the priest? The original state of affairs favours one (i.e. being born in the priesthood), the final one the other (i.e. his father died while still being priest). You will divide this in much the same way, opposing head to head.
Fourth is the incident, when (as in conjecture) another whole question arises in the middle of the heads. E.g.: An uninitiated man sees the mysteries in a dream; he tells someone what he saw, and asks whether it is so; the man he asks agrees, and is brought to trial for revealing the mysteries. The question is, what is it to reveal the mysteries? This proceeds as far as relative importance; then another question arises--who is the uninitiate? And you will divide this too into all the heads as far as relative importance, then you make the remaining heads common to both questions. The fifth class is that called dual definition, which arises when the question concerns two descriptions applied to one person that are not counterdescriptions; e.g.: A priest must be pure and of pure parentage; a man kills his father as an adulterer, and is excluded from the priesthood. The question is, who is pure and who is of pure parentage? One must first go through one completely under all the heads, then commence the other from the beginning.
So much for definition.
Presentation is as in definition. Part of right is the same as the counterplea, but differs in that here it is placed straightforwardly at the beginning without argument, in the place of an exception, but there it is handled differently. E.g.: A painter paints a shipwreck and displays it at the harbour; no one puts into port; he is charged with harming the public interest. The presentation is obvious; the part of right is that it is inappropriate to be brought to trial for things which no law forbids.
Person: 'Even if that is appropriate, nevertheless private citizens should not be tried for harming the public interest, but politicians, ambassadors, generals, and the like. These people would have the capacity to harm the public interest, since they perform public duties, but private citizens cannot.'
Definition: 'Indictments for harming the public interest have other grounds, for example, for betraying ships, walls, allies, and things of that sort.' The assimilation necessarily follows: 'Both these things and the others are a crime against the public interest, and there is no difference. There are many ways of committing a crime, and the fact that someone has not to committed a crime in all of them will not give him immunity, he is to be punished even if he commits a crime in one way.' This point will, of course, be developed. Each side will use legislator's intention, if relevant, for its own advantage.
Importance: that what occurred is serious. Relative importance: that it is more serious than what is cited in defence, e.g. that causing a shortage of all necessities because none of the merchants puts into port is more serious than betraying ships or walls. In these (i.e. importance and relative importance) the sequence of events necessarily arises.
The reply to this, as we learned in conjecture, is the counterplea: 'It is permissible and no law forbids it.' Then the objection, by refutation if there is opportunity: 'It is not in fact permissible'; and by counter-representation: 'Even if it is permissible, it is not so on these conditions and in this way.'
The counterposition in this case is a counterstatement, e.g.: 'I acted on behalf of mariners, so that they should know the harm they would probably come to if they sailed at the wrong time, and so take care.'
Second objection: 'You should have offered your advice in a different way.' And if the prosecutor uses an objection, the defendant too will again use a counterplea, e.g.: 'Each gives advice as he is able, and is not forbidden to do so; the politician by his speeches, the painter by his art.'
The thesis is consequent; the thesis in this instance is that everyone should be useful to the community as he is able. The prosecutor will also use it sometimes, inverting it; e.g. that one should not abuse arts to the detriment of the common good. We have learned in definition how quality and intention are argued. We have made these comments not as a division--many points have been passed over--but just so as to indicate the nature of the heads.
There are several kinds of counterplea also. Two of them are simple, and (principally) two double, although certain combinations occur so that more can be found; but anyone who has learned only the classes just mentioned can avoid errors in the division of those too, so we will discuss only these. Of the simple, one involves judgement based on the act itself; e.g.:Alcibiades, having been recalled from exile after the battle of Cyzicus, has the events of the Sicilian expedition portrayed on drinking-cups, and is charged with harming the public interest. This is divided only into the previously mentioned heads as relevant.
Another involves judgement based on the act itself and some other contingency, as in the case of the painter who paints a shipwreck, and is brought to trial when no one puts into port. Also in this case: After the battle of Chaeroneia Philip sends a message offering a choice between recovering the two thousand prisoners or the thousand dead; Demosthenes argues successfully for the choice of the thousand; Philip executes the prisoners; Demosthenes is charged with harming the public interest. In counterpleas of this kind there is a special head besides those already mentioned, the exception; this can be placed before the other heads, or in the middle of them, or in general in whatever way is advantageous. It is: 'On what grounds are you bringing me to trial? If for the things done subsequently, it is not right to hold someone accountable for what others do, not even if they are close relatives, still less when they are enemies and not related in any way. But if for the advice I gave or what I did at the outset, you should have spoken against me or resisted me at the time. And if you did oppose and were defeated, you are now attacking and accusing not only me, but also those who voted for me, or failed to restrain me. But if you did not oppose and did not restrain, either you had something better to say or do but passed it over at the time, in which case you stand convicted of being an enemy of the common good; or else you had nothing to say against me and are equally liable as me for the same ignorance of subsequent events and what occurred without anyone anticipating them. You deserve to suffer a penalty, if you think that I do.' Also, in counterpleas of this kind, before the relevant counterposition one should certainly use the head of mitigation; e.g.: 'No one knows the future; so I too cannot be held to account for my ignorance.' Someone expert in the whole art of rhetoric will treat this as is appropriate; knowledge of division, which is this treatise's only subject-matter, is not enough--knowledge of treatment is also needed. So much for simple counterpleas.
Of double counterpleas, one is by combination, the other by distinction. By combination, when there are two charges and neither charge can stand separately, but only in combination with the other. E.g.: Someone opposes everyone's proposals but offers none of his own; he is charged with harming the public interest. Here it is obvious that there are two counterpleas, since it is permissible both to speak and to refrain from speaking; also that there are likewise two counterpositions, e.g. 'I oppose; for it is right to oppose what speakers say in error,' and 'I do not speak; there is no need to speak about matters which are not pressing.' But a distinctive feature of this class is the need for defendants to make a distinction and speak separately about each, and for prosecutors to link the two together.
A double counterplea by distinction arises when there are two charges which can be judged separately from each other; e.g.: A man has frequently changed wives and adopted many children; he is charged with living immorally. Here, similarly, the prosecutor will interlink the charges and the defendant will distinguish them. However, it is clear that the prosecution links together for the sake of amplification two things which could in fact be judged separately, while the defendant distinguishes them for the sake of diminution; but in the previous instance, this occurs not simply for the sake of amplification or diminution, but because the act cannot be subjected to judgement otherwise than by being introduced in this way.
I said that there can be further classes of counterplea. For example, this kind differs from those previously mentioned; e.g.: Two men who had charged each other with adultery drop the charges and exchange wives; they are charged with living immorally. First of all, there are two persons being judged; then there are four counterpleas, the same for each of them; e.g. it is permissible to bring a charge, and again to drop a charge; it is permissible to marry whoever one chooses, and to divorce one's existing wife; none of these things is forbidden, and the prosecutor must refute each of them. The approach on both sides, for the prosecutor and the defendant, is clear from what has already been said. There are other kinds of counterplea, which it would be pointless to discuss here; every counterplea can be divided by anyone who follows correctly what has already been said.
All counterpositions are divided: presentation; definition (in some cases), with its concomitants as far as relative importance; intent; counterposition as such--whichever shares the name of the question's issue (i.e. counterstatement, counteraccusation, transference, mitigation); alternative intent; objection; relative importance; forcible definition; thesis; second objection; counterplea; quality and intention.
The presentation is obviously from the events that have occurred.
We will use definition when it is relevant, just as we have already explained in counterplea; after the amplification of course comes sequence of events, in reply to which the defendant will use intent. As an [ example: A hero killed his son for prostituting himself, and is charged with homicide. Definition is not relevant. After the presentation the prosecutor will place the sequence of events, since definition is not relevant. In reply to that, the defendant will use intent, asserting that the argument should be based not just on what was done, but also on the intention with which it was done: first, that he was not hostile to or scheming against the son; secondly, that he acted reluctantly, but out of necessity.
Then the counterposition; in this case a counteraccusation is relevant he deserved it; and he will develop the common topic against a male prostitute (in every counteraccusation the counterposition takes the form of a common topic). He will also say something by way of counterstatement, that he did this on behalf of the victim himself. In general, all counterpositions are--by and large--interlinked with each other, and not only with each other but also with the other issues.
The alternative intent belongs to the prosecutor, that it was not for this purpose but for some other. It should be realized that even if this head is not very appropriate in the present case, in others it is found both extremely appropriate and very useful.
Objection: he should have done it in some other way than this. Relative importance belongs to both parties, trying to show in opposition to each other whether the benefit or the crime is more important.
Forcible definition likewise belongs to both parties. This head will be easier to recognize in the following question: During a famine under siege, the general unsuccessfully advocates giving battle by sortie; he then secretly cuts through a section of the wall; there is a victorious sortie; the general is subsequently charged with harming the public interest.
The forcible definition, then, is that this is not in fact a victory, so much as the capture and overthrow of the city. And, correspondingly, on the defendant's side, that this is not in fact to have cut through the wall, so much as to have restored it when breached. The thesis follows consequentially: 'A general should, in whatever way opportunity allows, serve the city, even if the citizens are sometimes opposed because of ignorance of the best course of action, and he should do a small amount of damage instead of a great amount.' This is common to all counterpositions.
The second objection in turn belongs to the prosecutor: 'He should have to discussed this matter with the assembly and the army officers.' The counterplea: 'I was a general, and empowered to act,' or 'As a father, I was permitted to take decisions about my son.' In general, we will use the relevant heads as occasion allows.
We have learned how quality and intention arise in definition.
Some of those who have, under the title of the art of rhetoric, written on the part concerned with division have tried to say that there are classes of counterstatement, and indeed of the other counterpositional issues. They did not aim to show us any difference in their division, as we have done in counterplea and the others; that would perhaps have been worthwhile. Their point is that one class is private, another public, another mixed, and so forth. This is the same mistake as in discussions of classes and modes. For this is useful to those considering private and public discourse; but I doubt whether there is any call for someone who is still unfamiliar with division to know these things. To someone who lacks this knowledge, what would be the use of the distinction of questions into private and public?
Some have not differentiated mitigation from transference in terms of accountability and non-accountability, they have simply said that arguments transferring the crime to some external factor are all transference (e.g. a storm, torture, or something else of that nature), and defined only arguments transferring the crime to the individual's own internal state as belonging to mitigation (e.g. pity, sleep, etc.). This maybe satisfactory-- there is no difference except in the use of the term 'mitigation', which one would often find good use for even in cases of transference; and, con- versely, in what are agreed to be mitigations one will use transference. This is not, in my view, a matter of division, but of knowing how to use opportunities and how to treat ideas correctly.
The practical issue is divided: legality, justice; advantage; feasibility, honour; consequence. It may be documentary or non-documentary. The documentary is that in which the question is based on a verbal instrument, e.g.: The law prescribes that a declaration of war should be debated over three days; when Philip occupies Elateia Demosthenes proposes an immediate sortie. The non-documentary is that not based on a verbal instrument; e.g.: After the Pylos campaign Cleon requests the tide 'Pythian'.
Legality in the documentary class falls under one of the legal issues, and is divided accordingly, we will discuss legal issues in due course. In the non-documentary class, custom should be treated as a basis for argument as if it had the force of law, e.g.: "Your request is unprecedented; no one has ever made a request of this nature or magnitude before.' We will handle this by refutation and counter-representation. Counter-representation: e.g.: After the Pylos campaign Cleon requests the title 'Pythian': 'Your request is unprecedented': 'Indeed it is--my achievements are unprecedented as well.' Refutation: 'But actually it is not unprecedented; in fact, Pericles received the tide "Olympian".' The 0ccasion will show which should be used first (refutation or counter-representation), as we laid down in conjecture.
Justice falls under one of the juridical issues, and is divided into heads accordingly, as opportunity allows. Advantage is twofold: usefulness and necessity. E.g.: 'Accepting Olynthus as an ally is useful; or rather, it is necessary if we are to prevent Philip increasing his power at our expense by taking the city.' You will argue this out in two ways: what will the result be if we adopt the course of action under consideration, and what will the result be if we do not? Each of these you will argue out in four ways, e.g.: 'If we choose this our existing advantages will remain and advantages which we do not now have will be gained in addition; conversely, we will dispense with our existing disadvantages, and we will acquire no additional ones that we do not have at present. If we do not choose this, our existing advantages will be lost, and those which we do not have but stand to gain will not be gained; conversely, our existing disadvantages will remain, and others which we do not now have will be gained in addition.'
Feasibility you will subdivide, first of all showing that it is not difficult, using refutation; then showing by counter-representation that even if it is difficult, it is necessary, and that one must submit to toil and danger for worthwhile objectives, and also to avoid running into more serious difficulties; then, that it is in fact easy. If the subject is war or something of that kind, consider feasibility on the basis of the attributes of the persons, as Demosthenes does in the Second Olynthian--Philip's condition (his despondency), the state of his foreign relations (e.g. the Thessalians, the Illyrians), finance, 'his mercenaries and guards infantry', and what follows. Corresponding to this was the examination of Athenian power, the reason why Demosthenes passed it over can of course be shown by anyone who examines the speech in the light of theory. The division demands it, but there is no cause for surprise if it is passed over, since some of the other heads are omitted in accordance with nature there as well, and we often make omissions, not only in the practical issue but everywhere else as well. Art shows the method of division, but art must be adapted to the nature of the facts as opportunity allows. The one is a matter of invention, the other a matter of judgement; in particular, we will not use everything that invention generates in a speech--we should only say whatever we judge appropriate.
Honour is treated similarly to advantage. E.g.: What reputation that we now enjoy will remain, and what reputation that we currendy do not enjoy will be acquired if we do adopt the course of action under consideration? What existing disgrace shall we set aside and what disgrace not currendy existing, but anticipated, shall we avoid acquiring? Conversely, if we do not adopt this course of action, what existing shame will we fail to set aside, and what shame currendy not existing will overtake us? What existing reputation will disappear, and what reputation not exist- ing but potential will fail to be added?'
Consequence is handled hypothetically for both outcomes; e.g.: Whether we are victorious or not, it is to our advantage to give aid, and indeed even simply to vote to give aid.' As in the Philippics, e.g.: 'Even if you do not in fact do as I think you ought, the resolution will not be one by any means to be taken lighdy, by god; either he will hold back out of fear, knowing that you are prepared, or he will ignore it and be caught off guard'; and: Whether those who are seeking alliance with us are i defeated without us or win without us, the result will in each case be against our interests,' as in On behalf of Megalopolis.
Objection can, in turn, be documentary or non-documentary.
The documentary class is a complete procedural exception, and the prior question is found to be about one of the legal issues, which we will discuss in due course, as has been said. Sometimes the prior question is analysed according to definition. The question following the exception will be divided according to one of the other logical issues. E.g.:Anyone opposing a law must oppose within thirty days of it being passed; it shall not be permissible thereafter. While the poor man is serving as ambassador, his rich enemy proposes a law excluding those with property of less than five talents from public office or speaking in the assembly, the poor man returns after the thirty days, and wishes to oppose the law. The prior enquiry follows letter and intent: when and to whom does the law prescribe opposition within thirty days--not to ambassadors or those abroad, and so forth. The second enquiry follows the practical issue, whether the proposal made is lawful, just, etc. Here too a second argument byway of exception is relevant, e.g.: 'Because you do not have property of five talents or more, you are not empowered to speak'; it is clear how he will counter this too from the nature of the facts: because the enquiry is still about whether the law needs judicial review it cannot be invoked as already valid.
The non-documentary class is divided: presentation; exception based on a verbal instrument; objection; assimilation; definition; counterposi-tion; second objection; counterplea; thesis; quality and intention. E.g.: A man who has fought heroically asks for and is granted the death of a citizen; he is found to have killed him already, and is charged with homicide. Presentation: Tou are a murderer.'
Exception: 'I will not give an account for someone handed over to me by the people to be killed.'
Objection: When he was killed he had not been handed over.' The speaker objects, of course, to the element of time; he concedes the act, but seeks judgement on the circumstance of the act, inasmuch as that the people would not in fact have granted it had he been present and spoken in opposition.
Assimilation: 'It makes no difference whether at one time or another.'
(We are saying this not byway of a division, but to indicate the nature of the heads; there is a great deal to be said here by those making a division.)
Definition: 'It makes every difference.' Counterposition: 'Seeing that the people voted against him, he deserved death.' Second objection: "You should have stated that you had killed him and that he deserved to be slaughtered, and asked for immunity.' ao The counterplea follows on these points: 'I was free to ask for whatever I wanted, and you should not be laying down the manner in which I ought to have made my request.'
Thesis: is it right to permit these things? Or: is it right to put brave men into the hands of malicious prosecutors? Quality and intention, as in what precedes.
The enquiry on the basis of letter and intent is divided: presentation of the verbal instrument; intent; exclusion of further distinctions; legislator's intention; assimilation; definition; counterposition; objection; relative importance; forcible definition; thesis; second objection; counterplea; quality and intention.
The presentation is the actual occurrence contrary to the terms of the document; e.g.: It is a capital offence for an alien to ascend the city walls; in wartime a man ascended the walls and fought heroically, he is brought to trial under the law. The presentation is You ascended.' Intent is the basis of two arguments, that of the legislator and that of the man held to account. Of the legislator, e.g. when he speaks of peo- pie ascending the walls, when and on what condition and for what reason? Of the person subject to the verbal instrument, e.g.: 'One should not consider only whether I ascended the walls, but also my intention in doing so, and the fact that it was not with hostile intention.' The exclusion of farther distinctions belongs to the party appealing to the letter of the verbal instrument; e.g.: The legislator made none of these further distinctions, but said straightforwardly that aliens should not ascend the walls.'
The second intent is common to both parties. The defendant uses it in meeting the exclusion of further distinctions; e.g.: The legislator thought there was no need to make further distinctions about things that are obvious by enjoining that those with friendly intention should not be subject to the ban.' The prosecutor will say that he thought it absurd under any circumstances to allow aliens to ascend the walls.
Assimilation, that making or not making further distinctions makes no difference to the document, which is clear even without that. Definition: it makes a great difference in every way. The counterposition is the actual occurrence, and the defendant will have more advantage here. Objection: e.g.: "You should have done it in another way, and 'It was possible for you to benefit the city, if you chose, without breaking the law.'
Relative importance: as in counterpositionals, whether the benefit or the crime is more important. It is common to both parties. The rest of the heads will also be argued as in the counterpositionals.
Conflict of law is a kind of double letter and intent, as I defined it in the systematic introduction of the issues. It shares most of the heads with that issue--doubled, naturally--but it also has a distinctive element of its own, as will become clear. It is to be divided thus: presentation of the verbal instrument; intent; alternative presentation of the verbal instrument; alternative intent. Of the subsequent heads, some are generally omitted because they are equally balanced; e.g. these are followed as in letter and intent by the exclusion of further distinctions, second legislator's intent, assimilation, and (in reply to that) definition; but these seem in a sense to be equally balanced, since much the same can be said on both sides, and it is difficult to be able to use them. However, the heads after these are obvious, i.e.: counterposition; objection; relative importance; forcible definition; thesis; second objection; counterplea; then quality and intention. A distinctive head over and above the division in letter and intent is the question of which includes and which is included by the other, i.e. which outcome will abrogate neither of the verbal instruments. This head will be placed after relative importance.
All this will be clear from an example; e.g.: A disinherited son shall not have a share in his father's property, a man who remains on board a ship abandoned during a storm shall become the owner of the ship; a disinherited son remains on board his father's ship when it is abandoned during a storm, and is prohibited from taking possession. Presentation of the verbal instrument. 'As a disinherited son, you have no share in your father's property.'
'He means, presumably, when someone makes a claim to inherit or succeed to any part of his father's property under the laws applying to children, not when the claim is made as a stranger standing in no relation.'
Then follows the alternative presentation of the law. 'Especially when the law explicitly grants title to the person who remains on board ship.' The alternative intent is a reply to this: 'But it grants this subject to the proviso that the property is not that of the father, that it is a stranger's, that one is not disinherited, that one is not prohibited by law.' Then there is the exclusion of farther distinctions; whichever side uses this, the other side too will be able to use it, and it is equally balanced. One might in fact be able to treat it in a division; at present we are not dividing, but indicating the heads, and they are clear. Consequent on this head, definition and assimilation are also equally balanced.
However, the second intent, which is the intention of the legislator, is argued differently by each side with reference to both laws. E.g.: "Why does the legislator exclude a disinherited son from his father's property?' The prosecutor will say, 'Because he thought someone hateful to his father unworthy to have a share in any of his property'; the defendant: 'No, the aim was to force them to earn their living by working for themselves and exposing themselves to dangers, and so cast off the idleness and self-indulgence which led to their disinheritance. This is what I have done by remaining on board ship.' Conversely, cWhy does he grant the ship to the man who remains on board?': 'So that mariners will be steadfast in the face of danger,' or whatever either side devises. (As I have often stressed, I am not giving a division here; I make these remarks to give an indication of the heads.)
The counterposition is double on both sides; e.g.: 'But you are disinherited,' and here there is an attack in the manner of a common topic. The other party: 'But I remained on the ship'; here there is something in the nature of a counterstatement, and a description of the circumstances of the storm. The objection too is double: the disinherited son will say 'It would be unjust to exclude me from tide to the ship, even if I were such a person; this is not the occasion for these charges'; the other party: "You should have displayed your courage in other circumstances, not in these.'
The relative importance--which of the laws it is better to maintain-- if there is opportunity to say that one law is old, the other recent; one enacted by Solon, if such is the case, the other by so-and-so; the one is common, the other private; the one is concerned with extremely seriousmatters, the other with minor ones; that if the one is undermined, the community will suffer severe harm, but little or none if the other is undermined.
In addition to these there is also the head which is more distinctive to conflict of law, which is inclusive and which is included, i.e. which outcome will abrogate neither of the laws. The nature of this head is hard to discern in the present case; it will be clearer in the light of this question: A man raped two young women at the same time; one chooses marriage, the other the rapist's death. The one who demands his death will say that he will pay a penalty to both if he dies, but if he marries the other woman half of the law will be nullified.
Forcible definition: that the ship belongs not, in fact, to the father but to the storm; or that it is not the father's property, but no one else's either. The thesis and what follows, if relevant, are argued out as in counter-positionals.
Assimilation is divided: presentation of the fact; letter, assimilation; definition; legislator's intention; importance; forcible definition; relative importance; counterposition (in some cases); if this is relevant then an objection will also be found, and counterplea will certainly follow, then quality and intention.
In general, except for the different order of the first heads, assimilation is divided as is definition. This will be clearer in the light of an example; e.g.: It is illegal to ridicule anyone by name in comedy, someone introduces characters in a comedy with identifiable masks, and is brought to trial under the law as having ridiculed by name in comedy.
Presentation of the fact ^You subject citizens to ridicule in comedy illegally.'
Letter. 'But I named no one; that is what the law prohibits.'
Assimilation: that there is no difference between the two.
Definition: there is every difference.
Legislator's intention is common: what was the legislator's aim in prohibiting this? The prosecutor will say: The aim was to abolish straight- forward, unaccountable slander of any citizen on any charge these people like'; the defendant will say: This is not the reason; he wanted people to be subject to reproof through comedy, and therefore did not ban comedy outright; but he did not want records left for subsequent generations, or for contemporaries, containing abuse of any citizen. In the absence of names the reproof comes about by means of masks, but the record for subsequent time is removed as is the slander before others.'
Importance: as in definition, that what occurred is important.
Forcible definition: that this is in fact to ridicule by name in comedy.
Relative importance and subsequent heads are all argued out as in definition.
There are many classes of assimilation, all of which you will divide in the same way, however, examples may be set down. They arise either on the basis of: (i) the equal, like the one discussed above; (ii) the greater, e.g.: It is permissible to execute exiles who try to return; someone whips an exile who is trying to return, and is charged with unlawful punishment. He argues: "Whoever grants the greater also grants the lesser'; (iii) the contrary, e.g.: A hero shall receive a reward; the general executes a deserter, and is charged with homicide. He will use a counteraccusa- tion not on its own, but in conjunction with the points mentioned above. (iv) the lesser, on the basis of its consequences; e.g.: It is permissible to brand adulterers; someone kills an adulterer while branding him, and is charged with homicide. He argues: "Whoever grants the antecedent also grants the consequences that ensue from it.'
Ambiguity is divided: presentation of the verbal instrument; alternative presentation of the same instrument in accordance with the ambiguity, legislator's intent; inclusive and included; counterposition; objection; thesis; quality and intention.
One should be aware that if ambiguity is treated as a self-sufficient question, it is inevitably pedantic and correspondingly somewhat frigid in respect of division. But if it is part of a question, its division is useful. This is exhibited in all invented questions based on oracles and prophecies. For consideration of the heads, take this question: If a prostitute wears gold ornaments, demosia esto; a prostitute is arrested wearing gold
ornaments; someone maintains that she is public property (reading demosia esto), but she denies that she is public property herself, claiming that the ornaments are (reading demosia esto).
Presentation of the verbal instrument: The law requires that you are public property.'
Alternative presentation in accordance with the ambiguity. 'Not me but the gold ornaments.'
Legislator's intention is argued by both sides for their own advantage; e.g.: The legislator took this to deserve punishment...'--one party will say'... the severest punishment', but she will say:'... punishment, but moderate, just as he assigned proportionate penalties for other crimes.'
Inclusive and included: that if the prostitute becomes public property, so do the ornaments; but if only the ornaments become public property the prostitute goes free.
The counterposition follows immediately, it is by way of counteraccu-sation, and the prosecutor goes through an argument against the prostitute in the manner of a common topic.
This is followed in turn by objection; e.g.: 'Granted that she is a prostitute, she enjoys the distinctive rights of this profession--not to be like free women, nor to be subject to the same expectations.' And obviously her advocate will appeal to pity at this point, advancing her poverty or something of that sort.
Quality and intention as in the above. It so happens in this question that the argument based on intention is extensive--whether she wore the gold ornaments out of contempt for the law or simply out of ignorance.