Institutio Oratoria

Quintilian

Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.

This final recapitulation must be as brief as possible and, as the Greek term indicates, we must summarise the facts under the appropriate heads. For if we devote too much time thereto, the peroration will cease to be an enumeration and will constitute something very like a second speech. On the other hand the points selected for enumeration must be treated with weight and dignity, enlivened by apt reflexions and diversified by suitable figures; for there is nothing more tiresome than a dry repetition of facts, which merely suggests a lack of confidence in the judges' memory.

There are however innumerable ways in which this may be done. The finest example is provided by Cicero's prosecution of Verres. [*](V. lii. 136)

If your own father were among your judges, what would he say when these facts were proved against you?

Then follows the

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enumeration. Another admirable example [*](ib. lxxii. ) may be found in the same speech where the enumeration of the temples which the praetor had despoiled takes the form of invoking the various deities concerned. We may also at times pretend to be in doubt whether we have not omitted something and to wonder what the accused will say in reply to certain points or what hope tile accuser can have after the manner in which we have refuted all the charges brought against us.

But the most attractive form of peroration is that which we may use when we have an opportunity of drawing some argument from our opponent's speech, as for instance when we say

He omitted to deal with this portion of tile case,

He preferred to crush us by exciting odium against us,

He had good reason for resorting to entreaty, since lie knew certain facts.

But I must refrain from dealing with the various methods individually, for fear that the instances that I produce should be regarded as exhaustive, whereas our opportunities spring from the nature of the particular case, from the statements of our opponents and also from fortuitous circumstances. Nor must we restrict ourselves to recapitulating the points of our own speech, but must call upon our opponent to reply to certain questions.

This however is only possible if there is time for him to do so and if the arguments which we have put forward are such as not to admit of refutation. For to challenge points which tell in our opponent's favour is not to argue against him, but to play the part of prompter to him.

The majority of Athenians and almost all philosophers who have left anything in writing on the art of oratory have held that the recapitulation is the sole form of peroration. I

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imagine that the reason why the Athenians did so was that appeals to the emotions were forbidden to Athenian orators, a proclamation to this effect being actually made by the court-usher. [*]( Athenaens (xiii. 6, 590 E) states that a law against appeals to the emotions was passed at Athens after Hyperides' defence of 'hryne ( see xv. 9.). But there is no real evidence for the existence of such a law save in cases tried before the Areopagps (see Arist. Rhet. I. i. 5). Appeals for pity were as freely employed in the ordinary courts of Athens during the fourth century as at Rome. When Xenophon ( Mem. iv. iv. 4) says that Socrates refused to beg mercy of his judges contrary to the law, he seems to refer to the spirit, not the letter. ) I am less surprised at the philosophers taking this view, for they regard susceptibility to emotion as a vice, and think it immoral that the judge should be distracted from the truth by an appeal to his emotions and that it is unbecoming for a good man to make use of vicious procedure to serve his ends. None the less they must admit that appeals to emotion are necessary if there are no other means for securing the victory of truth, justice and the public interest.

It is however admitted by all that recapitulation may be profitably employed in other portions of the speech as well, if the case is complicated and a number of different arguments have been employed in the defence; though no one will doubt but that there are many cases, in which no recapitulation at all is necessary at any point, assuming, that is, that the cases are both brief and simple. This part of the peroration is common both to the prosecution and the defence.

Both parties as a general rule may likewise employ the appeal to the emotions, but they will appeal to different emotions and the defender will employ such appeals with greater frequency and fulness. For the accuser has to rouse the judge, while the defender has to soften him. Still even the accuser will sometimes make his audience weep by the pity excited for the man whose wrongs he seeks to avenge, while the defendant will at times develop no small vehemence when he complains of the injustice of the calumny or conspiracy of which

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he is the victim. It will therefore be best to treat these duties separately: as I have already said, [*](IV. i. 27, 28.) they are much the same in the peroration as in the exordium, but are freer and wider in scope in the former.

For our attempts to sway the judges are made more sparingly at the commencement of the speech, when it is enough that such an attempt should gain admittance and we have the whole speech before us. On the other hand in the peroration we have to consider what the feelings of the judge will be when he retires to consider his verdict, for we shall have no further opportunity to say anything and cannot any longer reserve arguments to be produced later.

It is therefore the duty of both parties to seek to win the judge's goodwill and to divert it from their opponent, as also to excite or assuage his emotions. And the following brief rule may be laid down for the observation of both parties, that the orator should display the full strength of his case before the eyes of the judge, and, when he has made up his mind what points in his case actually deserve or may seem to deserve to excite envy, goodwill, dislike or pity, should dwell on those points by which he himself would be most moved were he trying the case.