Institutio Oratoria

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

v7-9 p.429

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

v7-9 p.431

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,

while demanding the utmost rigour of the law from the judges, suggests a loophole for clemency, not openly, for that would imply a pledge on our part, but by giving a plausible suspicion of our meaning. This device is employed in a number of controversial themes, among them the following.

A ravisher, unless within thirty days he secure pardon both from his own father and the father of the ravished girl, shall be put to death. A man who has succeeded in securing pardon from the father of the girl, but not from his own, accuses the latter of madness.