Institutio Oratoria

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.