Institutio Oratoria

It is, however, on the judge that we shall pin our highest hopes, if the circumstances be such that acquittal will result in giving him a reputation for clemency rather than for regrettable weakness. But even in the ordinary courts appeals for mercy are frequently employed to a large extent, although they will not colour the whole of our pleading. For the following form of division is common:—

Even if he had committed the offence, he would have deserved forgiveness,

Sometimes indeed the whole case may rest on such considerations. For example, if a father has made an express declaration that he has disinherited his son because lie was in love with a woman of the town, will not the whole question turn on the point whether it was the father's duty to pardon such an offence and whether it is the duty of the centumviral court to overlook it? Nay, even in penal prosecutions governed by strict forms of law we raise two separate questions: first whether the penalty has been incurred, and secondly whether, if so, it ought to be inflicted. Still the view of the authorities to whom I have referred that an accused person cannot be saved from the clutches of the law by this method of defence is perfectly correct.

With regard to rewards, there are two questions which confront us: namely, whether the claimant is

The place may also be discussed in a number of ways: was the city in which the tyrant was killed one inured to tyranny or one which had always been free? was he killed in the citadel or in his own house? The means, too, and the time call for consideration: was he killed by poison or the sword? was he killed in time of peace or war, when he was intending to lay aside his power or to venture on some fresh crime?

Further, in considering the question of merit, the danger and difficulty of the act will carry great weight, while with regard to liberality it will similarly be of importance to consider the character of the person from whom it proceeds. For liberality is more pleasing in a poor man than in a rich, in one who confers than in one who returns a benefit, in a father than in a childless man. Again, we must consider the immediate object of the gift, the occasion and the intention, that is to say, whether it was given in the hope of subsequent profit; and so on with a number of similar considerations. The question of quality therefore makes the highest demands on the resources of oratory, since it affords the utmost scope for a display of talent on either side,

For conjecture has often to introduce proofs from without and uses arguments drawn from the actual subject matter, whereas the real task of eloquence is to demonstrate quality: there lies its kingdom, there its power, and there its unique victory. Verginius includes under quality cases concerned with disinheritance, lunacy, cruelty to a wife, and claims of female orphans to marry relatives. The questions thus involved are, it is true, frequently questions of quality, while some writers style them questions of moral obligation.