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 soon as the judges grasp their point, they will either refuse to put him to the torture in view of his motive for desiring to be tortured, or will refuse to believe any confession he may make under torture. But, it will be urged,

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 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, they say, that is due not to his desire to die, but to bring odium on his son. For my part,

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 father. For in this case he does not pardon his son entirely, but cannot openly withdraw the evidence that he gave in the first trial, and while he does not inflict any worse penalty than disinheritance, he does not shrink from that. Further, the employment of the figure tells more heavily against the father than is fair and less against the son. The sense is quite uncertain. The simplest interpretation is perhaps that the father's action and the figura by which he defends himself show that his evidence in the previous trial was false. The son has been acquitted on the father's evidence, and the father by punishing him has put himself in a hopelessly false position.

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.

Here if the father pledges himself to pardon him, the dispute falls to the ground. If, on the other hand, he holds out no hope of pardon, though he will not necessarily be regarded as mad, he will certainly give the impression of cruelty and will prejudice the judge against him. Latro therefore showed admirable skill when he made the son say, You will kill me then? and the father reply, Yes, if I can. Si potero is ambiguous. It might mean If I have the heart to do so. Here lies the loophole for clemency to which Quintilian has referred. The elder Gallio treats the theme with greater tenderness, as was natural to a man of his disposition. He makes the father say, Be firm, my heart, be firm. Yesterday you were made of sterner stuff.

Akin to this are those figures of which the Greeks are so fond, by means of which they give gentle expression to unpleasing facts. Themistocles, for example, is believed to have urged the Athenians to commit their city to the protection of heaven, because to urge them to abandon it would have been too brutal an expression. Again the statesman Unknown. who advised that certain golden images of Victory should be melted down as a contribution to the war funds, modified his words by saying that they should make a proper use of their victories. But all such devices which consist in saying one thing, while intending something else to be understood, have a strong resemblance to allegory.

It has also been asked how figures may best be met. Some hold that they should always be exposed by the antagonist, just as hidden ulcers are laid open by the surgeon. It is true that this is often the right course, being the only means of refuting the charges which have been brought against us, and this is more especially the case when the question turns on the very point at which the figures are directed. But when the figures are merely employed as vehicles of abuse, it will sometimes even be wisest to show that we have a clear conscience by ignoring them.

Nay, even if too many figures have been used to permit us to take such a course, we may ask our opponents, if they have any confidence in the righteousness of their cause, to give frank and open expression to the charges which they have attempted to suggest by indirect hints, or at any rate to refrain from asking the judges not merely to understand, but even to believe things which they themselves are afraid to state in so many words.

It may even at times be found useful to pretend to misunderstand them; for which we may compare the well known story of the man who, when his opponent cried, Swear by the ashes of your father, See v. vi. 1. An oath might be taken by one of the parties as an alternative to evidence. In court such an oath might be taken only on the proposal of the defendant. The taking of such a proffered oath meant victory for the swearer. replied that he was ready to do so, whereupon the judge accepted the proposal, much to the indignation of the advocate, who protested that this would make the use of figures absolutely impossible; we may therefore lay it down as a general rule that such figures should only be used with the utmost caution.

There remains the third class of figure designed merely to enhance the elegance of our style, for which reason Cicero expresses the opinion that such figures are independent of the subject in dispute. As an illustration I may quote the figure which he uses in his speech Lost. An allusion presumably to the occasion when Clodius was found disguised as a woman at the mysteries of the Bona Dea. against Clodius: By these means he, being familiar with all our holy rites, thought that he might easily succeed in appeasing the gods.

Irony also is frequently employed in this connexion. But by far the most artistic device is to indicate one thing by allusion to another; take the case where a rival candidate speaks against an ex-tyrant who had abdicated on condition of his receiving an amnesty An example of this theme is preserved in the elder Seneca, Excerpt. controv. 5, 8. One candidate is permitted to speak against another. A tyrant has abdicated on condition of an amnesty and that any one who charged him with having been a tyrant should be liable to capital punishment. The ex-tyrant stands for a magistracy. The rival candidate speaks against him. The irony is in the last sentence. : I am not permitted to speak against you. Do you speak against me, as you may. But a little while ago I wished to kill you.

Another common device is to introduce an oath, like the speaker who, in defending a disinherited man, cried, So may I die leaving a son to be my heir. By this wish he expresses his disapproval of such acts as the disinheritance of a son. But this is not a figure which is much to be recommended, for as a rule the introduction of an oath, unless it is absolutely necessary, is scarcely becoming to a self-respecting man. Seneca made a neat comment to this effect when he said that oaths were for the witness and not for the advocate. Again, the advocate who drags in an oath merely for the sake of some trivial rhetorical effect, does not deserve much credit, unless he can do this with the masterly effect achieved by Demosthenes, which I mentioned above. §62.

But by far the most trivial form of figure is that which turns on a single word, although we find such a figure directed against Clodia by Cicero pro Cael. xiii. 32. The word is amica, which means either mistress or friend. : Especially when everybody thought her the friend of all men rather than the enemy of any.

I note that comparison is also regarded as a figure, although at times it is a form of proof, See v. xi. 32 (where for hredem read heredi with MSS.) The man to whom the usufruct of a house has been left will not restore it in the interests of the heir if it collapses: just as he would not replace a slave if he should die. and at others the whole case may turn upon it, E.g. when the accused admits that he is guilty of a crime, but seeks to show that his wrongdoing was the cause of greater good. while its form may be illustrated by the following passage from the pro Murena: pro Muren. ix. 22. You pass wakeful nights that you may be able to reply to your clients; he that he and his army may arrive betimes at their destination. You are roused by cockcrow, he by the bugle's reveille, and so on.