Abstract
It is well-known that the Roman orator Cicero had a good knowledge of Greek orators and used their works as models to develop his own art of reasoning. Therefore, to understand the strategies he applied in his speeches, it is reasonable to briefly look at and analyse certain speeches whose argumentative strategy could serve as models for him. The first two speeches from Antiphon’s First Tetralogy, a model example of accusation and defence in a murder case with little hard evidence, offer a very interesting example of strategic manoeuvring, where both sides rely almost exclusively on probabilistic arguments to refute the claims made by the other. Lysias’ speech On the Olive Stump, shows an interesting development on Antiphon’s First Tetralogy in that the orator provides a defence of a young Athenian businessman aspiring for an office in the Areopagus by contrasting probabilistic arguments against him with favourable ones and at the same time offering an effective counter-accusation. Another speech from Lysias, called In Defence of Matitheos, provides an example for the Thematic replacement heuremes. The orator carefully moves to replace his defence argument with a catalogue of past merits in proof of Mantitheos’ innocence. Demosthenes’ speech On the False Embassy attempts to turn a highly complicated political argument to the orator’s favour by using a seemingly straightforward historical narrative which simplifies and streamlines the events to show the defendant’s past actions in the best possible light.
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- 1.
Cf. Chap. 1 n. 4. His translation of Dem. 18 and Aesch. 3 serves as a further proof for Cicero’s esteem for his Greek predecessors. In the extant introduction to this work called the De optimo genere oratorum, he also mentions Lysias (10), Isocrates (17), Plato (16) and Thucydides (15) as models for imitation. We can be quite certain that Cicero in fact read widely these authors. However, it seems from his remarks (esp. 7–13) that Cicero is mainly concerned with stylistic features of the speeches and pays less attention to the study of argumentative strategies.
- 2.
In Brutus 316 he describes his training in Asia with the Greek rhetor Molon of Rhodes
- 3.
- 4.
The lack of narrative poses several questions. Editions from Aldus onwards suggest a lacuna in 4. However, none of the four tetralogies contain a long narrative, so it may only be a few words missing here, as well. The easiest answer would be that model speeches should keep facts to a bare minimum and therefore go without a detailed story. More intricate would be the supposition that Antiphon tries to show that the orator can manipulate and re-evaluate facts by transposing factual details to places other than the beginning of the speech. In other speeches of Antiphon, such as in the On the Murder of Herodes, we also find similarly short narratives interspersed with argumentation.
- 5.
This is because slave testimony without torture was not considered admissible in Athenian courts, and also because the slave told his last words to strangers without the prosecutor being present. It seems curious that neither side discusses the credibility of the passers-by, who according to 2.1.9 will appear in the trial, although 2.2.7 suggests that they were the relatives of the murdered, which sounds like a somewhat improbable coincidence.
- 6.
It is very important to note the expression in 2.1.2. The words there may mean on the one hand that probability can be of any kind, implying that weaker probabilities should also be assigned great credit due to the difficulty of the demonstration. On the other hand, the expression may imply that the prosecution is allowed to look for probabilities outside the murder in strict sense, a justification for the inclusion of 5–8. The speaker pretends that in reality he does not present the probable inferences, but only propositions from which the jury should conclude whether or not the defendant committed the crime.
- 7.
What we should mean by ‘ordinary cases’ in 2.1.1 is of course not further defined. Perhaps we could think of crimes such as theft or adultery, which do not often go to court for the simple reason that laws give definite directions on how to settle them. But these possibilities cannot be true, as the speaker thinks about signs by which one can easily discover that a crime was committed. It seems more likely that ‘ordinary’ in this case is just a hypothetical opposite of the cunning machinations allegedly performed by the defendant.
- 8.
See especially: 2.1.5. The subtlety of the formulation lies in the (unfounded) implication that the defendant had already considered himself guilty. That consideration is presented as if it were the defendant’s self-confession (cf. 2.1.6.).
- 9.
The argument in its details looks remarkable. The conclusion of the legal wrangles is drawn in the end of 6. Such an extreme choice may not be certain, so the speaker needs to go further and supply the premises based on psychological observation, which end in a positive dilemma as proof that the murder was necessary. He is going to score points regardless of whether or not the murderer would be discovered.
- 10.
As the speaker expresses it in 9.
- 11.
Cf. Gagarin (1997, p. 129) and Arist. Rhet. 1376a17.
- 12.
The speaker still has to say that he would have preferred to present direct evidence, had he had more witnesses to come forward. Strangely, he does not count those witnesses who reported the words of the dying slave. Cf. 2.1.9.
- 13.
This hypothesis, however, does not suggest cooperation between the murderers and the prosecution, a line that Cicero pursues similarly with probabilities in Rosc. Am.
- 14.
Maidment (1968) remarks about 2.2.4 that ‘he (sc. the defence) too is obliged from the nature of the case to resort to proof by elimination.’ In our view, however, the acknowledgment of the prosecution’s line of argument is only seeming and tactical, because that will secure an easy elimination of the charges without the necessity of presenting other possible perpetrators, contrary to 2.2.2.
- 15.
e.g. that he paid somebody else to carry out the murder (cf. 2.2.8, 2.3.5, 2.4.8) or that he associated with other enemies of the murdered man to get rid of him. It is clear from 2.3, the prosecution’s second speech, that he is unable to present new proof but only answers to the defence’s points, which suggests the weakness of his position.
- 16.
The defendant does not go into details about how much other enemies were involved in legal or other battles with the dead man, so we may suppose that others suffered similar troubles as he did. Probable inferences work better with less precision of proof.
- 17.
This was, of course, impossible with a dead slave. However, the prosecution did not insist that the defendant has to be judged guilty on this account, but most probably applied it as a supportive proof with restricted validity.
- 18.
Note that the speaker uses here the peculiar opposition of probabilities and truth, instead of the normal antinomy of probabilities versus facts (cf. 2.1.2, 2.3.8, 2.4.8, Gorgias Pal. 5, 24).
- 19.
Although we said at the beginning of this analysis that we cannot really talk about heuremes in our case as the audience and other elements of a real case are missing, the strategy itself is worth noting. For the ‘contrastive probabilities’ heureme see Sect. 2.3.
- 20.
Dion. Hal. Lys. 15. (Usher 2000, p. 54). To describe a class of cases that Lysias preferred to choose, Dionysius uses the word amarturoi logoi, which does not necessarily mean that no testimony was available, but that these were inadequate for a proper demonstration. Dionysius’s remark echoes the well-known phrase about the sophists’ art ‘to make the weaker case look the stronger’.
- 21.
- 22.
For the analysis of the speech see G. Tahin, On the Strategy of Antiphon 5 (forthcoming).
- 23.
The hesitation can be read as an ingenious variety of the dubitatio. It serves as a strong premise for the assumption that the prosecution ignored even the most basic probabilities in order to create a case out of nothing. According to Bolonyai (2003, p. 158), Lysias deliberately confuses the meaning of elaa, olive tree, moria, fruit-bearing sacred olives, and sēkos, dead sacred olive-stump to prove that the text of the indictment bears the mark of fabrication, whereas he knew clearly what he was charged with.
- 24.
The statement is, of course, ambiguous, due to the vagueness of the term ‘olive tree’. As it is, we cannot decide with absolute certainty whether the defence attempts to prove on the other hand that there was neither common olive tree (elaa) nor sacred in his land at all, or on the other hand that there was neither sacred olive tree (moria) nor sacred olive stump (sēkos) there. Cf. Todd (2000, pp. 77–78).
- 25.
Especially in the years 411–8, when the land had no owner for three years. (cf. 4 and Bolonyai 2003, pp. 159–160). The general argument on war damages of Attica in 5–9 is again vague enough to support any kind of assumption. It is important, however, that the defence does not make any certain claim that the uprooting took place in reality.
- 26.
It remains to be found out why the prosecution was so careless as to put the date of the uprooting to 397/6, when the landlord could easily offer a range of evidence for these years about the absence of any olive tree from his land. The defence suggests that the prosecution is a young and inexperienced sycophant. (23) Was Nicomachos really so foolish? This allegation may sound too simple to accept. After all, the landlord, a wealthy Athenian could as a last resort to bribing the tenants and the officials.
- 27.
This proposition may suggest that the prosecution based his argument on the motive of profit, as well. But this is just a hypothesis, and it may well be that it was only the defence who wanted to argue on the basis of profit and attempted to ignore other probabilities, e.g. that he cut the tree down simply to get rid of a nuisance. The assumption of profit itself sounds somewhat strange. What great profit could the man gain from removing a sacred tree from his land?
- 28.
Cf. 12 The assumption that the defendant acts shrewdly could, however, also imply that he not only knew well in what ways such a crime can come to light, but that he was also able to avoid being detected, for example by bribing the witnesses. To counter that suspicion, he also has to prove his integrity later in 24–9.
- 29.
cf. Gor. Pal. 22–3, 34. That seemingly unimportant remark gains relevance, if we remember that the speaker himself failed to provide witnesses for the crucial first 5 days, when he purchased, but had not yet rented out his land. Moreover, the majority of his speech consists of circumstantial probable arguments, so he might also believe that his case could not be decided except by ‘words’.
- 30.
Which, after all, also means that it is in fact possible to avoid detection, depending on where the land lies etc., and that the registration of the trees may not have been flawless.
- 31.
This claim may also be debated. Cf. 2; Carey (1990, p. 120) and Bolonyai (2003, pp. 173–174). With respect to the supervision of olive trees, the defence’s argument is inconsistent. He pretends (esp. in 24–5) that the supervisors surveyed the dead olive stumps as well, whereas they kept a record of fruit-bearing olives only.
- 32.
- 33.
A technique which may explain Antiph. Tetr. 1.2.2. We may suppose that it was not expected of the accused to name someone whom he considers the real culprit, but his probability of innocence could gain a lot it if he does.
- 34.
The question whether the prosecution had any legal basis for the accusation is again debated. Most scholars, who assume that there was such a special law on testing the elected officials, refer to Lysias 26.9-10, where the speaker refers to a particular chapter of the law. Cf. Bolonyai (2003, pp. 309 and 417), MacDowell (1995, p. 168), Hansen (1983, pp. 188–189), Edwards and Usher (1985, p. 252). The hypothetical case in 26.10., however, may prove only that the members of the boule could, if they agreed, bar the prospective applicant from entering the council and there was no automatic refusal. Mantitheos appeals to this in 8, which may also be proof that members of the cavalry could indeed enter to the boule and even hold higher offices.
- 35.
That would mean of course a reinterpretation of the original charge. Confirming one’s loyalty is a vaguer issue and a much easier argumentative task than disproving a clear direct evidence of military service.
- 36.
He and his father most probably were not exiled, otherwise he could not have been on a serious business trip in corn-trading. Also, he fails to provide witnesses that he did not take part in the battle of Munichia against the returning democrats, which can be taken as an argumentum e silentio that he did support the Thirty.
- 37.
As Usher called it in 367. The argument can be summarised in one question. ‘Is someone who has behaved in such a way throughout his life likely to have behaved in the (contrary) way described on the present occasion?’ Cf. Antiph. 5. Her. 74–9, Lys. 21. 1–11, 26. 21–2, Isocr. 16. Although in a more restricted form, the argument is still accepted in present-day court practice.
- 38.
Cicero is very much fond of this type of heureme, although he never uses it in such a plain form as Lysias does. One of the finest examples in the Ciceronian corpus is the Pro Cluentio, where the major charge, the poisoning of the young Oppianicus, is presented by Cicero as an irrelevant accusation against his client compared with the prejudice created by the disgraceful iudicium Iunianum.
- 39.
- 40.
Yunis gives an excellent summary of Demosthenes’ art of narrative in his translation of the Fals. Leg. in Yunis (2005). ‘Demosthenes’ argument derives its punch from the quasi-historical narrative of events in which it is embedded. One would say quasi-historical, because, while the narrative comprehends a core of indisputable, commonly accepted facts, Demosthenes focuses not on objectivity or disinterested truth. Rather he makes the audience draw strong moral inferences. By depicting the protagonists in action – Aeschines colluding with Philip, Demosthenes resisting the attempts – Demosthenes supplies the basis for his fiercely expressed judgments condemning the traitor and defending himself.’
- 41.
Aeschines’ innocence is generally accepted today, e.g. by Harris (1995). Aeschines himself (2.118) throws the blame on Fortune and Philip, and claims that his just promises could not have been materialized as a result of political contingencies.
- 42.
As he discusses Philip’s philopragmosyne, meddlesomeness, in various places in Phil. 1. and Olyn. 1.4. Aeschines could have quoted these words with slight modification in his own defence, as well.
- 43.
In the defence speech, Aeschines strikes back exactly with those arguments where his opponent left himself undefended. He claims that Demosthenes himself advocated the peace together with Philocrates after the first embassy. If his account of the first embassy (2.20-44) can be credited, it shows that the enemies shared much in their political objectives, and inconsistency was not a prerogative of any side.
- 44.
The argument has a clear dividing line in 181, by which Demosthenes presents all his major arguments concerning his plan in 4, therefore our analysis will go as far as that point.
- 45.
Cf. Pickard-Cambridge (2003).
- 46.
Demosthenes says in 13 that Aeschines must have been bribed by that time. But that is a mere hypothesis without any proof, which tells more about Demosthenes’ construction of argument, rather than the establishment of a firm conclusion. In fact, he takes his conclusion forward before proving it.
- 47.
It seems from this statement that the indictment of Hypereides came after the trial of Aeschines. On the question of Philocrates’ guilt see Hyp. Eux. 28, Dem. 20, 21, Aesch. 3.79-81. Aeschines gives an equally vague answer to this argument in 2.6.
- 48.
Introduced in the form of a procataleipsis, which addresses the most pressing point of Demosthenes’ argument, the lack of direct evidence. Demosthenes’ confident and sophistic answer circumvents the problem ingeniously. Should we conclude from this that facts and direct evidence are two different classes of proof?
- 49.
Crucial information is missing from 123 to 124. The ambassadors ‘left’ the ill Aeschines behind to check the ‘saviour’ of the Phocians. What measures did Demosthenes intend to propose and how did the sick ambassador prevent him from doing so? The fact that Aeschines remained at home proves nothing of any suspected treason.
- 50.
Confusing the narrative sequence is a convenient technique to distort facts, which would not look suspicious in a linear time scale. In the present case, it would become clear that it was Philip who left the ambassadors waiting; their hesitance could have been caused by forbearence, in order to avoid an arrogant encounter with the invader.
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Tahin, G. (2014). Cicero’s Models: Heuristic Arguments in the Greek Orators. In: Heuristic Strategies in the Speeches of Cicero. Argumentation Library, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-319-01799-0_4
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