Institutio Oratoria

For at times we may include in a single proposition the refutation of an argument which our opponent has constructed of a number of different points. For instance, if the accuser allege that the accused had a number of motives for committing a crime, we may make a general denial of the fact without dealing singly with each alleged motive, because the fact that a man has had a motive for committing a

It will however as a rule be expedient for the prosecution to employ massed arguments, and for the accused to refute them in detail. We must, however, also consider the manner in which we should refute the arguments of our opponent. If his statements be obviously false, it will be sufficient to deny them. This is done by Cicero in the pro Cluentio, [*](lx. 168.) where he denies that the man alleged by the accuser to have fallen dead on the spot after drinking the contents of the cup, died on the same day.

Again, it requires no skill to rebut arguments which are obviously contradictory, superfluous or foolish, and consequently I need give no examples nor instructions as to the method to be employed. There is also the type of charge which is known as obscure, where it is alleged that an act was committed in secret without witnesses or any evidence to prove it: this suffers from an inherent weakness, since the fact that our opponent can produce no proof is sufficient for our purpose: the same applies to arguments which are irrelevant to the case.

It is, however, sometimes an orator's duty to make it appear that some argument of his opponent is contradictory or irrelevant or incredible or superfluous or really favourable to his own client. Oppius [*](cp. § 21 and v. x 69. ) is charged with having embezzled the supplies intended to feed the troops. It is a serious charge, but Cicero shows that it contradicts other charges, since the same accusers also charged Oppius with desiring to corrupt the army by bribes.

The accuser of Cornelius offers to produce witnesses to show that he read out the law when tribune [*](cp. IV. ii. 13. ) : Cicero makes this argument

As regards other charges, they may all be dealt with by very similar methods. For they may be demolished either by conjecture, when we shall consider whether they are true, by definition, when we shall examine whether they are relevant to the case, by quality, when we shall consider whether they are dishonourable, unfair, scandalous, inhuman, cruel, or deserve any other epithet coming under the head of quality.

Such questions have to be considered, not merely in connection with the statement of the charges or the reasons alleged, but with reference to the nature of the case in its entirety. For instance, the question of cruelty is considered with regard to the charge of high treason brought against Rabirius [*]( Rabirius was accused of causing the death of Saturninus forty years after the event. ) by Labienus; of inhumanity in the case of Tubero who accused Ligarius when he was an exile and attempted to prevent Caesar from pardoning him; of arrogance as in the case of the charge brought against Oppius [*]( P. Oppius, quaestor to M. Aurelius Cotta in Bithynia, was charged by Cotta in a letter to the senate with misappropriation of supplies for the troops and with an attempt on his life. Cicero defended him in 69 B.C. The speech is lost. ) on the strength of a letter of Cotta.

Similarly, it may be shown that charges are hasty, insidious or vindictive. The strongest argument, however, which can be brought against a charge is that it involves peril to the community or to the judges themselves; we find an example of the former in the pro Tullio, [*](cp. IV. ii. 131. The speech is lost. ) where Cicero says

Who ever laid down such a principle as this, or who could be allowed, without grave peril to the community, to kill a man, just because he asserts that he feared that he himself might be

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killed by him?

On the other hand there are certain arguments which at times may best be treated with contempt, as being trivial or irrelevant. This course is frequently pursued by Cicero, indeed this affectation of indifference is sometimes carried so far that we trample disdainfully under foot arguments which we should never succeed in refuting by counter-argument.

Since, however, the majority of such arguments are based on similarity, we must make diligent search to discover if any discrepancy is to be found in what is put forward. It is easy to do this where points of law are concerned. For the law was drafted to cover cases quite other than the present, and consequently it is all the easier to show the difference between case and case. As to parallels drawn from dumb animals or inanimate objects, they are easy to make light of.

Examples drawn from facts, if damaging to our case, must be treated in various ways: if they are ancient history, we may call them legendary, while if they are undoubted, we may lay stress on their extreme dissimilarity. For it is impossible for two cases to be alike in every detail. For instance, if the case of Ahala,2 by whom Maelius was killed, is quoted to justify Nasica for the slaying of Tiberius Gracchus, we may argue that Maelius was endeavouring to make himself king, while all that Gracchus had done was to bring forward laws in the interest of the people, and that while Ahala was Master of the Horse, Nasica was a private citizen. In the last resort, if all else prove unavailing, we must see if

With regard to my statement that the manner in which the accuser stated his charges was of importance, I would point out in this connexion that if he has spoken but feebly, we may repeat his actual words; while, if he has used bitter and violent language, we may restate the facts in milder terms, as Cicero does in the pro Cornelio, where he says,

He put his hand to the tablet containing the law

and we may do this in such a way as to defend our client; for instance, if our client is addicted to luxury, we may say,

He has been charged with living in a somewhat too liberal style.

But we must never under any circumstances repeat our opponent's charges together with their proofs, nor emphasise any of his points by amplifying them, unless we do so with a view to making light of them, as for instance in the following passage [*](pro. Mur. ix. 21. ) :

You have been with the army, he says, and have not set foot in the forum for so many years, and do you now on returning after so long an interval seek to compete for a post of high dignity with those who have made the forum their home?

Again, when we are replying to the accuser we may sometimes set forth the whole charge, as Cicero does in the pro Scauro with reference to the death of Bostar, [*](cp. IV. i. 69. Scaurus was accused of extortion in Sardinia, and of having murdered a certain Bostar at a banquet. ) where he virtually parodies the speech of his opponent, or we may take a number of points raised in the course of the accusation and put them together as in the pro Vareno : [*](cp. v. x. 69. )

They have asserted that, when he was

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journeying with Pompulenus through a lonely stretch of country, he fell in with the slaves of Ancharius, that Pompulenus was then killed and Varenus imprisoned on the spot until such time as this man should indicate what he wished to be done with him.

Common arguments [*](i.e. are easy to make use of. ) are readily appropriated, not merely because they can be used by either party, but because they are of greater service to the speaker who is replying; for I shall not scruple to repeat the warning which I have often given already; the speaker who is first to employ such an argument makes it tell against himself.

For an argument must needs tell against a speaker if it be one which his opponent can use with effect.

But, you say, it is not probable that a crime of this magnitude was designed by Marcus Cotta. Is it probable then that a crime of this magnitude was attempted by Oppius?

accuses Ligarius of having been in Africa, and complains that Ligarius refused to allow him to land in Africa. At times, however, some ill-advised statement by our opponent will give us an opportunity of demolishing his arguments. This is specially likely to occur with speakers who have a passion for producing impressive thoughts: for the temptation to air their eloquence is such that they take no heed of what they have said already, being absorbed by the topic immediately before them to the detriment of the interests of the case as a whole.

What is there likely to tell so heavily against Cluentius as the stigma inflicted by the censors? What can be more damaging than the fact that Egnatius disinherited his son on the ground that lie had been bribed to give a false verdict in the trial in which Cluentius secured the condemnation of Oppianicus? But Cicero [*](pro Cluent. xlviii. 135. )

shows that the two facts tell against one another.

But, Attius, I would urge you to give the closest consideration to the following problem. Which do you desire to carry the greater weight—the judgment of the censors, or of Egnatius? If the latter, you regard the judgment of the censors in other cases as counting for little, since they expelled this same Gnaeus Egnatius, on whose authority you lay such stress, from his place in the senate. On the other hand, if you attach most weight to the judgment of the censors, I must point out that the censors retained the younger Egnatius, whom his father disinherited by an act resembling a censorial decision, in his position as senator, although they had expelled his father.