Institutio Oratoria

He had a more difficult task in his defence of Cluentius, [*]( Ch. 17 sqq. ) as it was necessary for him to denounce Scamander's guilt, although he had previously appeared for him. But he excuses his action with the utmost grace, alleging the importunity of those persons who had brought Scamander to him, and his own youth at the time, whereas it would have been a serious blot on his reputation, especially in connexion with a case of the most dubious character, if he had admitted that he was one who was ready to undertake the defence of guilty persons without asking awkward questions.

On the other hand, when we are pleading before a judge, who has special reasons for being hostile to us or is for some personal motive ill-disposed to the cause which we have undertaken, although it may be difficult to persuade him, the method which we should adopt in speaking is simple enough: we shall pretend that our confidence in his integrity and in the justice of our cause is such that we have no fears. We must play upon his vanity by pointing out that the less he indulges his own personal enmity or interest, the greater will be the reputation for

The same method may be adopted if our case should chance to be sent back to the same judges from whom we have appealed: but we may further, if the case should permit, plead that we were forced to take the action which we did or were led to it by error or suspicion. [*](I.e. apologise for refusing to accept his original judgement. ) The safest course will therefore be to express our regret, apologise for our fault and employ every means to induce the judge to feel compunction for his anger.

It will also sometimes happen that a judge may have to try the same case on which he has previously given judgment. In such circumstances the method commonly adopted is to say that we should not have ventured to dispute his sentence before any other judge, since he alone would be justified in revising it: but (and in this we must be guided by the circumstances of the case) we may allege that certain facts were not known on the previous occasion or certain witnesses were unavailable, or, though this must be advanced with the utmost caution and only in the last resort, that our clients' advocates were unequal to their task.

And even if we have to plead a case afresh before different judges, as may occur in a second trial of a claim to freedom or in cases in the centumviral courts, which are divided between two different panels, it will be most seemly, if we have lost our case before the first panel, to say nothing against the judges who tried the case on that occasion. But this is a subject with which I dealt at some length in the passage where I discussed proofs. [*]( ii. 1, where, as here, it is indicated that different portions of a case might be tried by two panels of centumviri sitting separately. The centumviral court dealt mainly with cases of inheritance. ) It may happen that we have to censure actions in others, of which we have been guilty ourselves,

Again, there have been cases where persons condemned for bribery have indicted others for the same offence with a view to recovering their lost position: [*]( See v. x. 108 note and with reference to pro Clu. xxxvi. 98. ) for this the schools provide a parallel in the theme where a luxurious youth accuses his father of the same offence. I do not see how this can be done with decorum unless we succeed in discovering some difference between the two cases, such as character, age, motives, circumstances of time and place or intention.

Tubero, for example, alleges that he was a young man at the time and went thither in the company of his father, who had been sent by the senate not to take part in the war, but to purchase corn, and further that he left the party as soon as he could, whereas Ligarius clung to the party and gave his support, not to Gnaeus Pompeius, who was engaged with Caesar in a struggle for the supreme power, though both wished to preserve the state, but to Juba and the Africans who were the sworn enemies of Rome.

The easiest course, however, is to denounce another's guilt, while admitting our own in the same connexion. However, that is the part of an informer, not of a pleader. But if there is no excuse available, penitence is our only hope. For the man who is converted to the hatred of his own errors, may perhaps be regarded as sufficiently reformed.

For there are occasionally circumstances which from the very nature of the case may make such an attitude not unbecoming, as, for example, in the case where the father disinherits a son born of a harlot because that son has married a harlot, a case

He will say that it is the prayer of all parents that their sons should be better men than themselves (for example, if a daughter also had been born to him, the harlot, her mother, would have wished her to be chaste), or that he himself was in a humbler position (for a man in such a position is permitted to marry a harlot), [*]( The lex lulex de maritandis ordiaibus (18 B.C. ) forbade the marriage of a senator with a prostitute. ) or that he had no father to warn him; and further that there was an additional reason against his son's conduct, namely, that he should not revive the old family scandal nor reproach his father with his marriage and his mother with the hard necessity of her former life, nor give a bad example to his own children in their turn. We may also plausibly suggest that there is some particularly shameful feature in the character of the harlot married by the son, which the father cannot under existing circumstances tolerate. There are other possible arguments which I pass by: for I am not now engaged in declamation, but am merely pointing out that there are occasions when the speaker may turn his own drawbacks to good account.

More arduous difficulties confront us when we have to deal with a complaint of some shameful act such as rape, more especially when this is of an unnatural kind. I do not refer to cases when the victim himself is speaking. For what should he do but groan and weep and curse his existence, so that the judge will understand his grief rather than hear it articulately expressed? But the victim's advocate will have to exhibit similar emotions, since the

In many cases it is desirable to soften the harshness of our language by the infusion of a more conciliatory tone, as, for example, Cicero did in his speech [*](Now lost.) dealing with the children of the proscribed. What fate could be more cruel than that the children of men of good birth and the descendants of distinguished ancestors should be excluded from participation in public life? For this reason that supreme artist in playing on the minds of men admits that it is hard, but asserts that the constitution is so essentially dependent on the laws of Sulla, that their repeal would inevitably involve its destruction. Thus he succeeded in creating the impression that lie was doing something on behalf of those very persons against whom he spoke. [*]( Cicero argued that it was better that a few should suffer unjustly than that the state should be upset by admitting them to office. But he admitted that their case was hard and suggested that it was better for them to live in an orderly state than run the risks in which revolution would involve them as well as others. )

I have already [*]( iii. 28. ) pointed out, in dealing with the subject of jests, how unseemly it is to take the position in life of individuals as the target for our gibes, and also have urged that we should refrain from insulting whole classes, races or communities. But at times our duty toward our client will force us to say something on the general character of a whole class of people, such as freedmen, soldiers, tax farmers or the like.

In all these cases the usual remedy is to create the impression that it is with reluctance that we introduce topics which must give pain, while further we shall avoid attacking everything, and even while using the language of reproof with regard to the essential point of attack, shall make up for our censure by praising our victims in some other connexion.

For example, if we charge soldiers with rapacity, we shall

With regard to foreign nations, Cicero's practice varies. When he intends to disparage the credibility of Greek witnesses he admits their distinction in learning and literature and professes his admiration for their nation. [*](E.g. pro Flacco xxvi. ) On the other hand, he has nothing but contempt for the Sardinians [*]( In a fragment of pro Scauro. ) and attacks the Allobroges as the enemies of Rome. [*](pro Font. viii. ) In all these cases none of his remarks, at the time they were made, were inconsistent with or adverse to the claims of decorum.

If there be anything offensive in the subject on which we have to speak, it may be toned down by a studied moderation in our language; for example, we may describe a brutal character as being unduly severe, an unjust man as led astray by prejudice, an obstinate man as unreasonably tenacious of his opinion. And there are a large number of cases where we should attempt to defeat our opponents by reasoning, which forms the gentlest of all methods of attack.

To these remarks I would add that all extravagance of any kind is indecorous, and consequently statements which are in sufficient harmony with the facts will none the less lose all their grace unless they are modified by a certain restraint. It is hard

I think I should also add a few brief words to the effect that not only very different rhetorical virtues have their special admirers, but that they are often praised by the same persons. For instance, there is one passage [*]( See Or. rxiii. 76. In this and the next passage Quintilian does not quote, but paraphrases. ) in Cicero where he writes that the best style is that which we think we can easily acquire by imitation, but which we find is really beyond our powers. But in another passage [*]( See Or. xxviii. 97. ) he says that his aim was not to speak in such a manner that everyone should be confident that he could do the same, but rather in a style that should be the despair of all.

These two statements may seem to be inconsistent, but as a matter of fact both alike deserve the praise which they receive. The difference is due to the fact that cases differ in character. Those of minor importance are admirably suited by the simplicity and negligence of unaffected language, whereas cases of greater moment are best suited by the grand style. Cicero is pre-eminent in both. Now while eminence in one of these styles may seem to the inexperienced to be within their grasp, those who understand know that they are capable of eminence in neither.