§6.5.1his pro nostra facultate tractatis non dubitassem transire protinus ad dispositionem, quae ordine ipso sequitur, nisi vererer ne, quoniam fuerunt qui iudicium inventioni subiungerent, praeterisse hunc locum quibusdam viderer, qui mea quidem opinione adeo partibus operis huius omnibus connexus ac mixtus est, ut ne a sententiis quidem aut verbis saltem singulis possit separari, nec magis arte traditur quam gustus aut odor.
Having treated of these matters according to our ability, I should not have hesitated to pass on immediately to arrangement, which follows in the very order, if I were not afraid lest, since there have been some who annexed judgment to invention, I might seem to some to have passed over this topic, which in my opinion is so connected and mixed with all parts of this work that it cannot be separated even from sentences or at least from single words, nor is it transmitted by art any more than taste or smell.
§6.5.2ideoque nos, quid in quaque re sequendum cavendumque sit, docemus ac deinceps docebimus, ut ad ea iudicium dirigatur.
And therefore we teach and shall hereafter teach what is to be followed and avoided in each matter, so that judgment may be directed to those things.
praecipiam igitur, ne, quod effici non potest, aggrediamur, ut contraria vitemus et communia, ne quid in eloquendo corruptum, obscurum sit? referatur oportet ad sensus, qui non docentur.
Shall I therefore prescribe that we should not attempt what cannot be accomplished, so that we may avoid contraries and commonplaces, lest there be anything corrupt or obscure in speaking? These must be referred to the senses, which are not taught.
§6.5.3nec multum a iudicio credo distare consilium, nisi quod illud ostendentibus se rebus adhibetur, hoc latentibus et aut omnino nondum repertis aut dubiis.
Nor do I believe that counsel differs much from judgment, except that the latter is applied to things that show themselves, the former to those that are latent, and either not yet found at all or doubtful.
et iudicium frequentissime certum est, consilium vero est ratio quaedam alte petita et plerumque plura perpendens et comparans habensque in se et inventionem et iudicationem.
And judgment is very frequently certain, but counsel is a certain reason sought from deep sources, and usually weighing and comparing several things, and having in itself both invention and judgment.
§6.5.4sed ne de hoc quidem praecepta in universum exspectanda sunt.
But not even concerning this should rules be expected in general.
nam ex re sumitur cuius locus ante actionem est frequenter; nam Cicero summo consilio videtur in Verrem vel contrahere tempora dicendi maluisse quam in eum annum, quo erat Q. Hortensius consul futurus, incidere.
For it is taken from the case, the place of which is frequently before the pleading; for Cicero, with the highest counsel, seems to have preferred to shorten the times of speaking in the case against Verres, rather than to fall into that year in which Quintus Hortensius was to be consul.
§6.5.5et in ipsis actionibus primum ac potentissimum obtinet locum; nam, quid dicendum, quid tacendum, quid differendum sit, exigere consilii est; negare sit satis an defendere, ubi prooemio utendum et quali, narrandumne et quomodo, iure prius pugnandum an aequo, qui sit ordo utilissimus, tum omnes colores, aspere an leniter an etiam summisse loqui expediat.
And in the pleadings themselves it holds the first and most powerful place; for to determine what should be said, what concealed, what deferred, is the part of counsel; whether it be enough to deny or to defend, where an exordium should be used and of what kind, whether there should be a narrative and how, whether we should fight first by law or equity, what order is most useful, and then all the colors, whether it is expedient to speak harshly or gently or even submissively.
§6.5.6sed haec quoque, ut quisque passus est locus, monuimus, idemque in reliqua parte faciemus; pauca tamen exempli gratia ponam, quibus manifestius appareat quid sit, quod demonstrari posse praeceptis non arbitror.
But these things also we have advised, as each topic permitted, and we shall do the same in the remaining part; yet I will set down a few things by way of example, that it may appear more clearly what that is which I do not think can be demonstrated by rules.
§6.5.7laudatur consilium Demosthenis, quod, cum suaderet bellum Atheniensibus parum id prospere expertis, nihil adhuc factum esse ratione monstrat.
The counsel of Demosthenes is praised, because, when he was advising war to the Athenians who had experienced it with little success, he showed by reason that nothing had yet been done as it ought to be.
poterat enim emendari negligentia; at, si nihil esset erratum, melioris in posterum spei non erat ratio.
For negligence could be amended; but if no error had been committed, there was no reason for better hope for the future.
§6.5.8idem, cum offensam vereretur, si obiurgaret populi segnitiam in asserenda libertate rei publicae, maiorum laude uti maluit, qui rem publicam fortissime administrassent.
The same, when he feared giving offense if he should rebuke the sluggishness of the people in asserting the liberty of the state, preferred to make use of the praise of their ancestors, who had administered the state most bravely.
nam et faciles habuit aures, et natura sequebatur, ut meliora probantes peiorum paeniteret.
For he both had favorable ears, and it followed naturally that those who approved the better should repent of the worse.
§6.5.9Ciceronis quidem vel una pro Cluentio quamlibet multis exemplis sufficiet oratio.
Indeed, even the single speech of Cicero for Cluentius will suffice for any number of examples.
nam quod in eo consilium maxime mirer? primamne expositionem, qua matri, cuius filium premebat auctoritas, abstulit fidem? an quod iudicii corrupti crimen transferre in adversarium maluit quam negare propter inveteratam, ut ipse dicit, infamiam? an quod in re invidiosa legis auxilio novissime est usus, quo genere defensionis etiam offendisset nondum praemollitas iudicum mentes? an quod se ipsum invito Cluentio facere testatus est?
For what counsel in it should I most admire? His first exposition, by which he took away credit from the mother, whose authority pressed hard upon her son? Or that he preferred to transfer the charge of a corrupted trial to the adversary rather than deny it, on account of the inveterate infamy, as he himself says? Or that in an invidious matter he used the aid of the law last of all, by which kind of defense he would even have offended the minds of the judges not yet softened? Or that he testified that he did this himself against the will of Cluentius?
§6.5.10quid pro Milone? quod non ante narravit, quam praeiudiciis omnibus reum liberaret? quod insidiarum invidiam in Clodium vertit, quanquam revera fuerat pugna fortuita? quod factum et laudavit et tamen voluntate Milonis removit? quod illi preces non dedit et in earum locum ipse successit? infinitum est enumerare, ut Cottae detraxerit auctoritatem, ut pro Ligario se opposuerit, Cornelium ipsa confessionis fiducia eripuerit.
What in the speech for Milo? That he did not narrate before he freed the accused from all prejudices? That he turned the hatred of the plot upon Clodius, although in reality it had been an accidental encounter? That he both praised the deed and yet removed it from the will of Milo? That he did not give him entreaties, and in their place succeeded himself? It is endless to enumerate how he detracted from the authority of Cotta, how he opposed himself for Ligarius, how he rescued Cornelius by the very confidence of his confession.
§6.5.11illud dicere satis habeo, nihil esse non modo in orando, sed in omni vita prius consilio, frustraque sine eo tradi ceteras artes, plusque vel sine doctrina prudentiam quam sine prudentia facere doctrinam.
I hold it sufficient to say this: that there is nothing, not only in pleading, but in all life, prior to counsel, and that without it the other arts are transmitted in vain, and that prudence does more even without learning than learning without prudence.
aptare etiam orationem locis, temporibus, personis est eiusdem virtutis.
To adapt also the speech to places, times, persons is of the same virtue.
sed hic quia latius fusus est locus mixtusque cum elocutione, tractabitur cum praecipere de apte dicendo coeperimus.
But because this topic is more widely diffused and mixed with elocution, it will be treated when we begin to teach concerning speaking appropriately.