Nor shall any authority, however great, induce me to abandon my opinion that it is always desirable to render the judge attentive and ready to receive instruction. I am well aware that those who disagree with me urge that it is to the advantage of a bad case that its nature should not be understood; but such lack of understanding arises not from inattention on the part of the judge, but from his being deceived.

Our opponent has spoken and perhaps convinced him; we must alter his opinion, and this we cannot do unless we render him attentive to what we have to say and ready to be instructed. What are we to do then? I agree to the view that we should cut down, depreciate and deride some of our opponent's arguments with a view to lessening the attention shown him by the judge, as Cicero did in the pro Ligario.

For what was the purpose of Cicero's irony save that Caesar should be induced to regard the case as presenting only old familiar features and consequently to give it less attention? What was his purpose in the pro Caelio pro Cael. 31. save to make the case seem far more trivial than had been anticipated? It is, however, obvious that of the rules which I have laid down, some will be applicable to one case and some to another.

The majority of writers consider that there are five kinds of causes, the honourable, the mean, the doubtful or ambiguous, the extraordinary and the obscure, or as they are called in Greek, ἔνδοξον, ἄδοξον, ἀμφίδοξον, παράδοξον and δυσπαρακολούθητον. To these some would add a sixth, the scandalous, which some again include under the heading of the mean, others under the extraordinary.

The latter name is given to cases which are contrary to ordinary expectation. In ambiguous cases it is specially important to secure the good-will of the judge, in the obscure to render him ready to receive instruction, in the mean to excite his attention. As regards the honourable the very nature of the case is sufficient to win the approval of the judge; in the scandalous and extraordinary some kind of palliation is required.

Some therefore divide the exordium into two parts, the introduction and the insinuation, making the former contain a direct appeal to the good-will and attention of the judge. But as this is impossible in scandalous cases, they would have the orator on such occasions insinuate himself little by little into the minds of his judges, especially when the features of the case which meet the eye are discreditable, or because the subject is disgraceful or such as to meet with popular disapproval, or again if the outward circumstances of the case are such as to handicap it or excite odium (as for instance when a patron appears against a client or a father against a son), or pity (as when our opponent is an old or blind man or a child).

To save the situation the rhetoricians lay down a number of rules at quite inordinate length: they invent fictitious cases and treat them realistically on the lines which would be followed in actual pleading. But these peculiar circumstances arise from such a variety of causes as to render classification by species impossible, and their enumeration save under the most general heads would be interminable.

The line to be adopted will therefore depend on the individual nature of each case. As a general principle, however, I should advise the avoidance of points which tell against us and concentrate on those which are likely to be of service. If the case itself is weak, we may derive help from the character of our client; if his character is doubtful, we may find salvation in the nature of the case. If both are hopeless, we must look out for something that will damage our opponent. For though it is desirable to secure as much positive good-will as possible, the next best thing is to incur the minimum of actual dislike.

Where we cannot deny the truth of facts that are urged against us, we must try to show that their significance has been exaggerated or that the purpose of the act was not what is alleged or that the facts are irrelevant or that what was done may be atoned for by penitence or has already been sufficiently punished. It is consequently easier for an advocate to put forward such pleas than for his client, since the former can praise without laying himself open to the charge of arrogance and may sometimes even reprove him with advantage to the case.

At times, like Cicero in his defence of Rabirius Postumus, pro Rab. i. 1. he will pretend that he himself is strongly moved, in order to win the ear of the judge and to give the impression of one who is absolutely convinced of the truth of his cause, that so his statements may find all the readier credence whether he defends or denies the actions attributed to his client. Consequently it is of the first importance, wherever the alternative is open to us, to consider whether we are to adopt the character of a party to the suit or of an advocate. In the schools, of course, we have a free choice in the matter, but it is only on rare occasions that a man is capable of pleading his own case in the actual courts.

When we are going to deliver a declamation on a theme that turns largely on its emotional features, we must give it a dramatic character suited to the persons concerned. For emotions are not transferable at will, nor can we give the same forcible expression to another man's emotions that we should give to our own.

The circumstances which call for insinuation arise also in cases where the pleading of our opponent has made a powerful impression on the minds of the judges, or where the audience whom we have to address are tired. The first difficulty we shall evade by promising to produce our own proofs and by eluding the arguments of our opponents, the second by holding out hopes that we shall be brief and by the methods already mentioned for capturing the attention of the judges.

Again an opportune display of wit will often restore their flagging spirits and we may alleviate their boredom by the introduction of entertaining matter derived from any source that may be available. It will also be found advantageous to anticipate the objections that may be raised by our opponent, as Cicero Div. in Caec. i. 1. does when he says I know that some persons are surprised that one, who for such a number of years has defended so many and attacked none, should have come forward as the accuser of Verres, he then goes on to show that the accusation which he has undertaken is really a defence of the allies, an artifice known as πρόληψις or anticipation.

Although this is at times a useful device, some of our declaimers employ it on practically every occasion, on the assumption that one should always start with the order thus reversed. The adherents of Apollodorus reject the view stated above to the effect that there are only three respects in which the mind of the judge requires to be prepared, and enumerate many others, relating to the character of the judge, to opinions regarding matters which though outside the case have still some bearing on it, to the opinion current as to the case itself, and so on ad infinitum: to these they add others relating to the elements of which every dispute is composed, such as persons, deeds, words, motives, time and place, occasions and the like. Such views are, I admit, perfectly correct,

but are covered by one or other of the three classes which I have mentioned. For if I can secure good-will, attention and readiness to learn on the part of my judge, I cannot see what else I ought to require; even fear, which perhaps may be thought more than anything else to lie outside the considerations I have mentioned, secures the attention of the judge and deters him from favouring our opponent.

It is not, however, sufficient to explain the nature of the exordium to our pupils. We must also indicate the easiest method of composing an exordium. I would therefore add that he who has a speech to make should consider what he has to say; before whom, in whose defence, against whom, at what time and place, under what circumstances he has to speak; what is the popular opinion on the subject, and what the prepossessions of the judge are likely to be; and finally of what we should express our deprecation or desire. Nature herself will give him the knowledge of what he ought to say first.

Nowadays, however, speakers think that anything with which they choose to start is a proem and that whatever occurs to them, especially if it be a reflexion that catches their fancy, is an exordium. There are, no doubt, many points that can be introduced into an exordium which are common to other parts of a speech, but the best test of the appropriateness of a point to any part of a speech is to consider whether it would lose effect by being placed elsewhere.