Institutio Oratoria

It is but a step from this to practice in the comparison of the respective merits of two characters. This is of course a very similar theme to the preceding, but involves a duplication of the subject matter and deals not merely with the nature of virtues and vices, but with their degree as well. But the method to be followed in panegyric and invective will be dealt with in its proper place, as it forms the third department of rhetoric. [*](Book III. chap. vii.)

As to commonplaces (I refer to those in which we denounce vices themselves such as adultery, gambling or profligacy without attacking particular persons), they come straight from the courts and, if we add the name of the defendant, amount to actual accusations. As a rule, however, the general character of a commonplace is usually given a special turn: for instance we make our adulterer blind, our gambler poor and our profligate far advanced in years. Sometimes too they entail

for we may speak on behalf of luxury or love, while a pimp or a parasite may be defended in such a way that we appeal as counsel not for the character itself, but to rebut some specific charge that is brought against him.

Theses on the other hand are concerned with the comparison of things and involve questions such as

Which is preferable, town or country life?

Which deserves the greatest praise, the lawyer or the soldier?

Other theses too belong entirely to the deliberative class of oratory, as for instance the questions as to

Whether marriage is desirable

Whether a public career is a proper object of ambition.

My own teachers used to prepare us for conjectural cases by a form of exercise which was at once useful and attractive: they made us discuss and develop questions such as

Why in Sparta is Venus represented as wearing armour?

Why is Cupid believed to be a winged boy armed with arrows and a torch?

That certain topics such as the question as to

This practice— for I am not going to postpone expressing my judgment on it—I used to regard a confession of extreme weakness. For how can such men find appropriate arguments in the course of actual cases which continually present new and different features? How can they answer the points that their opponents may bring up? how deal a rapid counterstroke in debate or cross-examine a witness? if, even in those matters which are of common occurrence and crop up in the majority of cases, they cannot give expression to the most familiar thoughts except in words prepared so far in advance.

And when they produce the same passage in a number of different cases, they must come to loathe it like food that has grown cold or stale, and they can hardly avoid a feeling of shame at displaying this miserable piece of furniture to an audience whose memory must have detected it so many times already: like the furniture of the ostentatious poor, it is sure to shew signs of wear through being used for such a variety of different purposes.

Also it must be remembered that there is hardly a single commonplace of such universal application that it will fit any actual case, unless some special link is provided to connect it with

either because it is out of keeping with the circumstances or like most of its kind is inappropriately employed not because it is wanted, but because it is ready for use. Some speakers, for example, introduce the most long-winded commonplaces just for the sake of the sentiments they contain, whereas rightly the sentiments should spring from the context.

Such disquisitions are at once ornamental and useful, only if they arise from the nature of the case. But the most finished eloquence, unless it tend to the winning of the case, is to say the least superfluous and may even defeat its own purpose. However I must bring this digression to a close.

The praise or denunciation of laws requires greater powers; indeed they should almost be equal to the most serious tasks of rhetoric. The answer to the question as to whether this exercise is more nearly related to deliberative or controversial oratory depends on custom and law and consequently varies in different states. Among the Greeks the proposer of a law was called upon to set forth his case before a judge, [*](i.e. a court of nomothetae appointed by the Athenian assembly, who examined the provisions of the proposed law. ) while in Rome it was the custom to urge the acceptance or rejection of a law before the public assembly. But in any case the arguments advanced in such cases are few in number and of a definite type. For there are only three kinds of law, sacred, public and private.

This division is of rhetorical value chiefly when a law is to be praised. For example the orator may advance from praise to praise by a series of gradations, praising an enactment first because it is law, secondly because it is public, and, finally, designed for the support of religion. As regards the questions

Doubts may be raised as to whether the mover is legally in a position to propose a law, as happened in the case of Publius Clodius, whose appointment as tribune of the plebs was alleged to be unconstitutional. [*]( Clodius was a patrician and got himself made a plebeian by adoption to enable him to hold the tribunate. The question of the legality of this procedure is discussed by Cicero in the de Domo, 13–17. ) Or the legality of the proposal itself may be impugned in various ways; it may for instance be urged that the law was not promulgated within seventeen [*]( Lit. within the space of three market-days. nundinum =9 days, the second market-day being the ninth, and forming the last day of the first nundinum and the first of the second. Similarly the third market-day is the last day of the second nundinum and the first of the third. ) days, or was proposed, or is being proposed on an improper day, or in defiance of the tribunicial veto or the auspices or any other legal obstacle, or again that it is contrary to some existing law.

But such points are not suitable to elementary rhetorical exercises, which are not concerned with persons, times or particular cases. Other subjects, whether the dispute be real or fictitious, are generally treated on the following lines.

The fault must lie either in the words or the matter. As regards the words, the question will be whether they are sufficiently clear or contain some ambiguity, and as regards the matter whether the law is consistent with itself or should be retrospective or apply to special individuals. The point however which is most commonly raised is the question whether the law is right or expedient.

I am well aware that many rhetoricians introduce a number of sub-divisions in connexion with this latter enquiry. I however include under the term right all such qualities as justice, piety and religion. Justice is however usually discussed under various aspects. A question may be raised about the acts with which the law is concerned, as to whether they

Again expediency is sometimes determined by the nature of things, sometimes by the circumstances of the time. Another common subject of controversy is whether a law can be enforced, while one must not shut one's eyes to the fact that exception is sometimes taken to laws in their entirety, but sometimes only in part, examples of both forms of criticism being found in famous speeches.

I am well aware, too, that there are laws which are not proposed with a view to perpetuity, but are concerned with temporary honours or commands, such as the lex Manilia [*]( The lex Manilia proposed to give Pompey the command against Mithridates. ) which is the subject of one of Cicero's speeches. This however is not the place for instructions on this topic, since they depend on the special circumstances of the matters under discussion, not on their general characteristics.