Institutio Oratoria

It is important, too, that the figure should

Who dishonoured you?

My father, do you not know?

The facts themselves must be allowed to excite the suspicions of the judge, and we must clear away all other points, leaving nothing save what will suggest the truth. In doing this we shall find emotional appeals, hesitation and words broken by silences most effective. For thus the judge will be led to seek out the secret which he would not perhaps believe if he heard it openly stated, and to believe in that which he thinks he has found out for himself. But however excellent our figures,

they must not be too numerous. For overcrowding will make them obvious, and they will become ineffective without becoming inoffensive, while the fact that we make no open accusation will seem to be due not to modesty, but to lack of confidence in our own cause. In fact, we may sum up the position thus: our figures will have most effect upon the judge when he thinks that we use them with reluctance.

I myself have come across persons whom it was impossible to convince by other means: I have even come across a much rarer thing, namely, a case which could only be proved by recourse to such devices. I was defending a woman who was alleged to have forged her husband's will, and the heirs were stated to have given a bond [*]( The bond was to the effect that they would make over the property to the wife; the existence of such a bond proved the wife innocent, since it was a virtual confirmation of the will, of which it showed the husband to have cognisance. But the bond was not valid in the eye of the law and such tacita fideicommissa were illegal, since the wife could not inherit; consequently the admission of the existence of the bond would have involved the loss of the inheritance, which on information being laid (cp. delatores ) would have lapsed to the state. Caput is the civil status of the wife. With regard to dicebantur, the writing is careless, as it suggests that the statement was made by the prosecution, which was, of course, not the case. ) to the husband on his deathbed, which latter assertion was true.

For since the wife could not legally be appointed

Some things, again, which cannot be proved, may, on the other hand, be suggested by the employment of some figure. For at times such hidden shafts will stick, and the fact that they are not noticed will prevent their being drawn out, whereas if the same point were stated openly, it would be denied by our opponents and would have to be proved.

When, however, it is respect for some person that hampers us (which I mentioned as the second condition [*](See § 66.) under which such figures may be used), all the greater caution is required because the sense of shame is a stronger deterrent to all good men than fear. In such cases the judge must be impressed with the fact that we are hiding what we know and keeping back the words which our natural impulse to speak out the truth would cause to burst from our lips. For those against whom we are speaking, together with the judges and our audience, would

And what difference does it make how we express ourselves, when both the facts and our feelings are clearly understood? And what good shall we do by expressing ourselves thus except to make it clear that we are doing what we ourselves know ought not to be done? And yet in the days when I first began to teach rhetoric, this failing was only too common. For declaimers selected by preference those themes which attracted them by their apparent difficulty, although as a matter of fact they were much easier than many others.

For straightforward eloquence requires the highest gifts to commend itself to the audience, while these circuitous and indirect methods are merely the refuge of weakness, for those who use them are like men who, being unable to escape from their pursuers by speed, do so by doubling, since this method of expression, which is so much affected, is really not far removed from jesting. Indeed it is positively assisted by the tact that the hearer takes pleasure in detecting the speaker's concealed meaning, applauds his own penetration and regards another man's eloquence as a compliment to himself.

Consequently it was not merely in cases where respect for persons prevented direct speaking (a circumstance which as a rule calls for caution rather than figures ) that they would have recourse to figurative methods, but they made room for them even under circumstances where they were useless or morally inadmissible, as for example in a case where a father, who had secretly slain his son whom he suspected of incest with his mother,

But what could be more discreditable to the accused than that he should have kept such a wife? What could be more damaging than that he who is accused because he appears to have harboured the darkest suspicions against his wife, should by his defence confirm the charge which he is required to refute? If such speakers had only placed themselves in the position of the judges, they would have realised how little disposed they would have been to put up with pleading on such lines, more especially in cases where the most abominable crimes were insinuated against parents.

However, since we have lighted on this topic, let us devote a little more time to considering the practice of the schools. For it is in the schools that the orator is trained, and the methods adopted in pleading ultimately depend on the methods employed in declamation. I must therefore say something of those numerous cases in which figures have been employed which were not merely harsh, but actually contrary to the interests of the case.

A man condemned for attempting to establish himself as tyrant shall be tortured to make him reveal the names of his accomplices. The accuser shall choose what reward he pleases. A certain man has secured the condemnation of his father and demands as his reward that he should not be tortured. The father opposes his choice.

Everyone who pleaded for the father indulged in figurative insinuations against the son, on the assumption that the father would, when tortured, be likely to name him as one of his accomplices. But what could be more foolish? For as

it is possible that this was his motive. May be. But he should then disguise his motive, in order that he may effect his purpose. But what will it profit us (and by us I mean the declaimers) to have realised this motive, unless we declare it as well? Well, then, if the case were being actually pleaded in the courts, should we have disclosed this secret motive in such a way? Again, if this is not the real motive, the condemned man may have other reasons for opposing his son; he may think that the law should be carried out or be unwilling to accept such a kindness from the hands of his accuser, or (and this is the line on which I personally should insist) he may intend to persist in declaring his innocence even under torture.

Consequently the usual excuse advanced by such declaimers to the effect that the inventor of the theme meant the defence to proceed on these lines, will not always serve their purpose. It is possible that this was not the inventor's wish. However, let us assume that it was. Are we then to speak like fools merely because he thought like a fool? Personally I hold that, even in actual cases, we should often disregard the wishes of the litigant.

Further, in such cases speakers fall into the frequent error of assuming that certain persons say one thing and mean another: this is more especially the case where it is assumed that a man asks permission to die. Take, for example, the following controversial theme.

A man who had shown himself a heroic soldier in

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the past, on the occasion of a subsequent war demanded exemption from service in accordance with the law, on the ground that he was fifty years of age, but exemption being refused owing to the opposition of his son, he deserted on being compelled to go into the fight. The son, who had borne himself like a hero in the same battle, asks for his father's pardon as a reward. The father opposes his choice.

Yes,

that is due not to his desire to die, but to bring odium on his son.

I laugh at the fears which they manifest on his behalf, as though they were in peril of death themselves, and at the way in which they allow their terror to influence their line of pleading; for they forget how many precedents there are for suicide and how many reasons there may be why a hero turned deserter should wish for death.

But it would be waste of time to expatiate on one controversial theme. I would lay it down as a general rule that an orator should never put forward a plea that is tantamount to collusion, and I cannot imagine a lawsuit arising in which both parties have the same design, nor conceive that any man who wishes to live could be such a fool as to put forward an absurd plea for death, when he might refrain from pleading for it at all. [*]( The father does not wish to die, but merely to bring odium on his son, i.e. he is saying one thing and meaning another, for his real desire is to save his life. Consequently, despite their quarrel, both parties are aiming at the same thing, the saving of the father, while the father's plea is practically tantamount to collusion ( praevaricatio ) with his opponent. ) I do not, however,

deny that there are controversial themes of this kind where figures may legitimately be employed, as, for example, the following:

A man was accused of unnatural murder on the ground that he had killed his brother, and it seemed probable that he would be condemned. His father gave evidence in his defence, stating that the murder had been committed on his orders. The son was acquitted, but disinherited by the

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father.

But, while no one ever speaks against the view which he wishes to prevail, he may wish something of greater importance than what he actually says. Thus the disinherited son who asks his father to take back another son whom he had exposed, and who had been brought up by himself, on payment for his maintenance, while he may prefer that he himself should be reinstated, may all the same be perfectly sincere in his demand on behalf of his brother. Again, a kind of tacit hint may be employed, which,