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.

So far we have been dealing entirely with

If the law bars the way, there is no ground for action and the trial becomes a farce. But it is beyond question that the law exists and that the uneducated son did commit the offence for which it enacts a punishment.

I had no education.

But if the law applies to all men, it will be of no avail to plead lack of education. We must therefore try to discover whether there be not some point on which the law can be invalidated. We turn for guidance to nature (a point on which I cannot insist too often); what does she suggest save that when the letter of the law is against us, we should discuss its intention? This introduces the general question whether we are to stand by the letter or the spirit. But if we argue this question on general grounds with reference to law in the abstract, we shall go on for ever; it is a question that has never been decided. We must therefore restrict our enquiry to the particular law on which our case turns and try to find some argument against adhesion to the strict letter.

Well, then, is everyone who fails to appear in defence of his father to be disinherited? Are there no exceptions to the rule? At this point the following arguments will spontaneously suggest themselves.

Is an infant liable to the law?

does the law apply to a man who was away from home or absent on military service or on an embassy?

Our declaimer, who has thought out this line of argument, must now pass over like a Latin flute-player, as Cicero says, [*](Pro Mur. xii. 26. The flute-player went from one actor to another, according as each required accompaniment. ) to the side of the eloquent son and reply,

Granted, but you are not an infant, you were not away from home nor absent on military service.

I am an uneducated man

But to this there is the obvious retort,

Even if you could not actually plead, you might have supported him by your presence,

He wished to punish unfilial conduct, but I am not unfilial.

To this the eloquent son will reply,

The action whereby you deserved disinheritance was unfilial, although penitence or desire for display may have subsequently led you to choose this as your reward. Further, it was owing to you that our father was condemned, since by absenting yourself you appeared to imply that you thought him guilty.

Nay, you contributed to his condemnation, for you had given offence to many and made our family unpopular.

Let us pursue the matter further and see if we can discover any additional arguments. How is that to be done? I am deliberately imitating the actual train of thought of one

Why should we not try asking whether this means that he is to be disinherited, whatever the character of the father for whom he failed to appear? Such a course is often adopted in those controversial themes in which we demand that sons who fail to maintain their parents should be cast into prison: take for example the case of the mother who gave evidence against her son when accused of being an alien, or of the father who sold his son to a procurer. What, then, is there in the present case that we lay hold of as regards the character of the father?