Institutio Oratoria

It will also be desirable to throw the blame on others, so that it may be believed that the mother's action was instigated by their malice, and to assert that we will put up with every form of provocation, and will say nothing harsh in reply, so that, even although strong language may be absolutely necessary on our part, we may seem to be driven to use it against our will. Nay, if some charge has to be made against the mother, it will be the advocate's task to make it seem that he does so against the desire of the son and from a sense of duty to his client. Thus both son and advocate will win legitimate praise.

What I have said about mothers will apply to either parent; for I have known of litigation taking place between fathers and sons as well, after the emancipation [*](I.e. from the patria potestas by a fictitious form of sale. ) of the son. And when other relationships are concerned, we must take care to create the impression that we have spoken with reluctance and under stress of necessity and that we have been forbearing in our language; but the importance of so doing will vary according to the respect due to the persons concerned. The same courtesy should be observed in speaking on behalf of freedmen against their patrons.

The same respect is on occasion due to persons of high rank, and it may be necessary to offer justification for our freedom of speech to avoid giving the impression that we have shown ourselves insolent or ostentatious in our attack upon such persons. Consequently Cicero, although he intended to speak against Cotta [*](Cp. v. xiii. 20. P. Oppius, quaestor to M. Aurelius Cotta in Bithynia, was charged by Cotta in a letter to the Senate with misappropriation of supplies for his troops and with an attempt on his life. The speech in which Cicero defended Oppius (69 B.C.) is lost. ) with the utmost vehemence, and indeed the case of Publius Oppius was such that he could not do otherwise, prefaced his attack by pleading at some length the necessity imposed upon him by his duty to his client.

Sometimes, again, it will beseem us to spare or seem to spare our inferiors, more especially if they be young. Cicero [*]( See opening sections of pro Caclio. ) gives an example of such moderation in the way in which he deals with Atratinus in his defence of Caelius: he does not lash him like an enemy, but admonishes him almost like a father. For Atratinus was of noble birth and young, and the grievance which led him to bring the accusation was not unreasonable. But the task is comparatively easy in those cases in which it is to the judge, or even, it may be, to our audience that we have to indicate the reason for our moderation. The real difficulty arises when we are afraid of offending those against whom we are speaking.

The difficulties of Cicero when defending Murena were increased by the fact that he was opposed by two persons of this character, namely Marcus Cato and Servius Sulpicius. And yet in what courteous language, after allowing Sulpicius all the virtues, he refuses to admit that he has any idea of the way to conduct a candidature for the

And with what a light touch he deals with Cato! [*](Pro Muren. xxix. 60. ) He has the highest admiration for his character and desires to show that the fact that in certain respects it has become severe and callous is due not to any personal fault, but to the influence of the Stoic school of philosophy; in fact you would imagine that they were engaged not in a forensic dispute, but merely in some philosophical discussion.

This is undoubtedly the right method, and the safest rule in such cases will be to follow the practice of Cicero, namely, that, when we desire to disparage a man without giving offence, we should allow him to be the possessor of all other virtues and point out that it is only in this one respect that he falls short of his high standard, while we should, if possible, add some reason why this should be so, such, for example, as his being too obstinate or credulous or quick to anger, or acting under the influence of others.

(For we may generally find a way out of such embarrassments by making it clear throughout our whole speech that we not merely honour the object of our criticism, but even regard him with affection.) Further, we should have good cause for speaking thus and must do so not merely with moderation, but also give the impression that our action is due to the necessities of the case.

A different situation arises,

He had a more difficult task in his defence of Cluentius, [*]( Ch. 17 sqq. ) as it was necessary for him to denounce Scamander's guilt, although he had previously appeared for him. But he excuses his action with the utmost grace, alleging the importunity of those persons who had brought Scamander to him, and his own youth at the time, whereas it would have been a serious blot on his reputation, especially in connexion with a case of the most dubious character, if he had admitted that he was one who was ready to undertake the defence of guilty persons without asking awkward questions.

On the other hand, when we are pleading before a judge, who has special reasons for being hostile to us or is for some personal motive ill-disposed to the cause which we have undertaken, although it may be difficult to persuade him, the method which we should adopt in speaking is simple enough: we shall pretend that our confidence in his integrity and in the justice of our cause is such that we have no fears. We must play upon his vanity by pointing out that the less he indulges his own personal enmity or interest, the greater will be the reputation for

The same method may be adopted if our case should chance to be sent back to the same judges from whom we have appealed: but we may further, if the case should permit, plead that we were forced to take the action which we did or were led to it by error or suspicion. [*](I.e. apologise for refusing to accept his original judgement. ) The safest course will therefore be to express our regret, apologise for our fault and employ every means to induce the judge to feel compunction for his anger.

It will also sometimes happen that a judge may have to try the same case on which he has previously given judgment. In such circumstances the method commonly adopted is to say that we should not have ventured to dispute his sentence before any other judge, since he alone would be justified in revising it: but (and in this we must be guided by the circumstances of the case) we may allege that certain facts were not known on the previous occasion or certain witnesses were unavailable, or, though this must be advanced with the utmost caution and only in the last resort, that our clients' advocates were unequal to their task.

And even if we have to plead a case afresh before different judges, as may occur in a second trial of a claim to freedom or in cases in the centumviral courts, which are divided between two different panels, it will be most seemly, if we have lost our case before the first panel, to say nothing against the judges who tried the case on that occasion. But this is a subject with which I dealt at some length in the passage where I discussed proofs. [*]( ii. 1, where, as here, it is indicated that different portions of a case might be tried by two panels of centumviri sitting separately. The centumviral court dealt mainly with cases of inheritance. ) It may happen that we have to censure actions in others, of which we have been guilty ourselves,

Again, there have been cases where persons condemned for bribery have indicted others for the same offence with a view to recovering their lost position: [*]( See v. x. 108 note and with reference to pro Clu. xxxvi. 98. ) for this the schools provide a parallel in the theme where a luxurious youth accuses his father of the same offence. I do not see how this can be done with decorum unless we succeed in discovering some difference between the two cases, such as character, age, motives, circumstances of time and place or intention.

Tubero, for example, alleges that he was a young man at the time and went thither in the company of his father, who had been sent by the senate not to take part in the war, but to purchase corn, and further that he left the party as soon as he could, whereas Ligarius clung to the party and gave his support, not to Gnaeus Pompeius, who was engaged with Caesar in a struggle for the supreme power, though both wished to preserve the state, but to Juba and the Africans who were the sworn enemies of Rome.

The easiest course, however, is to denounce another's guilt, while admitting our own in the same connexion. However, that is the part of an informer, not of a pleader. But if there is no excuse available, penitence is our only hope. For the man who is converted to the hatred of his own errors, may perhaps be regarded as sufficiently reformed.

For there are occasionally circumstances which from the very nature of the case may make such an attitude not unbecoming, as, for example, in the case where the father disinherits a son born of a harlot because that son has married a harlot, a case

He will say that it is the prayer of all parents that their sons should be better men than themselves (for example, if a daughter also had been born to him, the harlot, her mother, would have wished her to be chaste), or that he himself was in a humbler position (for a man in such a position is permitted to marry a harlot), [*]( The lex lulex de maritandis ordiaibus (18 B.C. ) forbade the marriage of a senator with a prostitute. ) or that he had no father to warn him; and further that there was an additional reason against his son's conduct, namely, that he should not revive the old family scandal nor reproach his father with his marriage and his mother with the hard necessity of her former life, nor give a bad example to his own children in their turn. We may also plausibly suggest that there is some particularly shameful feature in the character of the harlot married by the son, which the father cannot under existing circumstances tolerate. There are other possible arguments which I pass by: for I am not now engaged in declamation, but am merely pointing out that there are occasions when the speaker may turn his own drawbacks to good account.

More arduous difficulties confront us when we have to deal with a complaint of some shameful act such as rape, more especially when this is of an unnatural kind. I do not refer to cases when the victim himself is speaking. For what should he do but groan and weep and curse his existence, so that the judge will understand his grief rather than hear it articulately expressed? But the victim's advocate will have to exhibit similar emotions, since the