Institutio Oratoria

We may carry the process further: either he wished to kill Clodius, who lay in wait for him, or he did not. The safer course is to argue that he did not wish to kill him. It was then the slaves of Milo who did the deed without Milo's orders or knowledge. But this line of defence shows a lack of courage and lessens the weight of our argument that Clodius was rightly killed.

We shall therefore add the words,

As every man would have wished his slaves to do under similar circumstances.

In the schools, on the other hand, such an enquiry is mere waste of time, since the prosecution and the defence are indifferently permitted to state a case and refute it in the same declamation. But in the majority of controversial themes it is not even possible to discover who should speak first, as for instance in the following:

A certain man had three sons, an orator, a philosopher and a physician. In his will he divided his property into four portions, three of which he distributed equally among his sons, while the fourth was to go to the son who rendered the greatest service to his country.

The sons dispute the point. It is uncertain who should speak first, but our course is clear enough. For we shall begin with the son whose role we assume. So much for the general rules by which we should be guided in making our division.

But how shall we discover those questions which present abnormal difficulty? Just as we discover reflexions, words, figures or the appropriate nuances of style, [*]( Or perhaps glosses, i. e. the giving of a special aspect to the case by skilful representation of facts. ) namely by native wit, by study and by practice. None the less it will be rare for anyone who is not a fool to fail to discover them, so long as he is content, as I have said, [*](§ 26.) to accept nature for a guide.

Many, however, in their passionate desire to win a reputation for eloquence are content to produce showy passages which contribute nothing to the proof of their case, while others think that their enquiry need not proceed further than that which meets the eye. To make my meaning clearer, I will cite a

The man who refuses to appear in defence of his father when accused of treason shall be disinherited: the man who is condemned for treason shall be banished together with his advocate. A father accused of treason was defended by one son who was a fluent speaker, while another son, who was uneducated, refused to appear for him. The father was condemned and banished with his advocate. The uneducated son performed some heroic act and demanded as a reward the restoration of his father and brother. The father returned and died intestate. The uneducated son claims a portion of his estate, the orator claims the whole for himself.

In this case those paragons of eloquence, who laugh at us because we trouble our heads about cases that rarely occur, will always assume the popular rôle. They will defend the uneducated against the eloquent son, the brave against the coward, the son who secured the recall of his kin against the ungrateful son, the son who is content with a portion of the inheritance against the son who would refuse his brother a share in their patrimony.

All these points are actually to be found in the case and are of considerable importance, but they are not such as to render victory a certainty. In such a case they will, as far as possible, search for daring or obscure reflexions (for to-day obscurity is accounted a virtue), and they will think they have given the theme a brilliant treatment by ranting and raving over it. Those, on the other hand, whose ideals are higher, but who restrict themselves merely to the obvious, will note

The uneducated son may be excused for not appearing at the trial on the ground that he could contribute nothing to his father's defence: but even the orator has no claim on the gratitude of the accused, since the latter was condemned: [*](Sc. in spite of his own eloquence. ) the man who secured the recall of his kin deserves to receive the inheritance, while the man who refuses to divide it with his brother, more especially with a brother who has deserved so well of him, is avaricious, unnatural and ungrateful: they will further note that the first and essential question is that which turns on the letter and intention of the law; unless this is first disposed of, all subsequent arguments must fall to the ground.

He, however, who follows the guidance of nature will assuredly reflect as follows: the first argument of the uneducated son will be,

My father died intestate and left two sons, my brother and myself; I claim a share in his estate by the law of nations.

He will then proceed to extol, though with due moderation, the justice of this common law of nations. The next point for our consideration is what reply can be made to so equitable a demand? The answer is clear:—

There is a law which disinherits the man who fails to appear in his father's defence when the latter is accused of treason, and you failed to appear.