Institutio Oratoria

Consequently, while to devote one's life to the task of accusation, and to be tempted by the hope of reward to bring the guilty to trial is little better than making one's living by highway robbery, none the less to rid one's country of the pests that gnaw its vitals is conduct worthy of comparison with that of heroes, who champion their country's cause in the field of battle. For this reason men who were leaders of the state have not refused to undertake this portion of an orator's duty, and even young men of high rank have been regarded as giving their country a pledge of their devotion by accusing bad citizens, since it was thought that their hatred of evil and their readiness to incur enmity were proofs of their confidence in their own rectitude.

Such action was taken by Hortensius, the Luculli, Sulpicius, Cicero, Caesar and many others, among them both the Catos, of whom one was actually called the Wise, [*](i.e. Cato the Elder. ) while if the other is not regarded as wise, I do not know of any that can claim the title after him. On the other hand, this same orator of ours will not defend all and sundry: that haven of safety which his eloquence provides will never be opened to pirates as it is to others, and he will be led to undertake cases mainly by consideration of their nature.

However, since one man cannot undertake the cases of all litigants who are not, as many undoubtedly are, dishonest, he will be influenced to some extent by the character of the persons who recommend clients to his protection and also by the character of the litigants themselves, and will allow himself to be moved by

But he must put away from him two kinds of pretentious display, the one consisting in the officious proffering of his services to the powerful against those of meaner position, and the other, which is even more obtrusive, in deliberately supporting inferiors against those of high degree. For a case is not rendered either just or the reverse by the social position of the parties engaged. Nor, again, will a sense of shame deter him from throwing over a case which he has undertaken in the belief that it had justice on its side, but which his study of the facts has shown to be unjust, although before doing so he should give his client his true opinion on the case.

For, if we judge aright, there is no greater benefit that we can confer on our clients than this, that we should not cheat them by giving them empty hopes of success. On the other hand, no client that does not take his advocate into his counsel deserves that advocate's assistance, and it is certainly unworthy of our ideal orator that he should wittingly defend injustice. For if he is led to defend what is false by any of the motives which I mentioned above, [*](XII. i. 36.) his own action will still be honourable.

It is an open question whether he should never demand a fee for his services. To decide the question at first sight would be the act of a fool. For we all know that by far the most honourable course, and the one which is most in keeping with a liberal education and that temper of mind which we desiderate, is not to sell our services nor to debase the value of such a boon as eloquence, since there are not a few things which come to be regarded as

This much even the blind can see, as the saying is, and no one who is the possessor of sufficient wealth to satisfy his needs (and that does not imply any great opulence) will seek to secure an income by such methods without laying himself open to the charge of meanness. On the other hand, if his domestic circumstances are such as to require some addition to his income to enable him to meet the necessary demands upon his purse, there is not a philosopher who would forbid him to accept this form of recompense for his services, since collections were made even on behalf of Socrates, and Zeno, Cleanthes and Chrysippus took fees from their pupils.

Nor can I see how we can turn a more honest penny than by performance of the most honourable of tasks and by accepting money from those to whom we have rendered the most signal services and who, if they made no return for what we have done for them, would show themselves undeserving to have been defended by us. Nay, it is not only just, but necessary that this should be so, since the duties of advocacy and the bestowal of every minute of our time on the affairs of others deprive us of all other means of making money.

But we must none the less observe the happy mean, and it makes no small difference from whom we take payment, what payment we demand, and how long we continue to do so. As for the piratical practice of bargaining and the scandalous traffic of those who proportion their fees to the peril in which their would-be client stands, such a procedure will be eschewed even by those who are more than half scoundrels, more especially since the advocate who devotes himself

To conelude, then, the orator will not seek to make more money than is sufficient for his needs, and even if he is poor, he will not regard his payment as a fee, but rather as the expression of the principle that one good turn deserves another, since he will be well aware that he has conferred far more than he receives. For it does not follow that because his services ought not to be sold, they should therefore be unremunerated. Finally, gratitude is primarily the business of the debtor.

We have next to consider how a case should be studied, since such study is the foundation of oratory. There is no one so destitute of all talent as, after making himself thoroughly familiar with all the facts of his case, to be unable at least to communicate those facts to the judge.

But those who devote any serious attention to such study are very few indeed. For, to say nothing of those careless advocates who are quite indifferent as to what the pivot of the whole case may be, provided only there are points which, though irrelevant to the case, will give them the opportunity of declaiming in thunderous tones on the character of persons involved or developing some commonplace, there are some who are so perverted by vanity that, on the oft-repeated pretext that they are occupied by other business, they bid their client come to them on the day preceding the trial or early on the morning of the day itself, and sometimes even boast that they learnt up their case while sitting in court;

while others by

Further, I would not even tolerate the affectation of those who insist that their friends, and not themselves, should be instructed in the facts of the case, though this is a less serious evil, if the friends can be relied upon to learn and supply the facts correctly. But who can give such effective study to the case as the advocate himself? How can the intermediary, the go-between or interpreter, devote himself whole-heartedly to the study of other men's cases, when those who have got to do the actual pleading do not think it worth while to get up their own?

On the other hand, it is a most pernicious practice to rest content with a written statement of the case composed either by the litigant who betakes himself to an advocate because he finds that his own powers are not equal to the conduct of his case, or by some member of that class of legal advisers [*](Advocatus is here used in its original sense. By Quintilian's time it had come also to mean advocate, and is often so used by him elsewhere. ) who admit that they are incapable of pleading, and then proceed to take upon themselves the most difficult of all the tasks that confront the pleader. For if a man is capable of judging what should be said, what concealed, what avoided, altered or even invented, why should he not appear as orator himself, since he performs the far more difficult feat of making

Such persons would not, however, do so much harm if they would only put down all the facts as they occurred. But as it is, they add suggestions of their own, put their own construction on the facts and insert inventions which are far more damaging than the unvarnished truth. And then the advocate as a rule, on receiving the document, regards it as a crime to make any alteration, and keeps to it as faithfully as if it were a theme set for declamation in the schools. The sequel is that they are tripped up and have to learn from their opponents the case which they refused to learn from their own clients.

We should therefore above all allow the parties concerned ample time for an interview in a place free from interruption, and should even exhort them to set forth on the spot all the facts in as many words as they may choose to use and allowing them to go as far back as they please. For it is less of a drawback to listen to a number of irrelevant facts than to be left in ignorance of essentials. Moreover,

the orator will often detect both the evil and its remedy in facts which the litigant regarded as devoid of all importance, one way or the other. Further, the advocate who has got to plead the case should not put such excessive confidence in his powers of memory as to disdain to jot down what he has heard. Nor should one hearing be regarded as sufficient. The litigant should be made to repeat his statements at least once, not merely because certain points may have escaped him on the occasion of his first statement, as is extremely likely to happen if, as is often the case, he is a man of no education, but also that we may note whether he sticks to what he originally

For a large number of clients lie, and hold forth, not as if they were instructing their advocate in the facts of the case, but as if they were pleading with a judge. Consequently we must never be too ready to believe them, but must test them in every way, try to confuse them and draw them out.

For just as doctors have to do more than treat the ailments which meet the eye, and need also to discover those which he hid, since their patients often conceal the truth, so the advocate must look out for more points than his client discloses to him. After he considers that he has given a sufficiently patient hearing to the latter's statements, he must assume another character and adopt the rôle of his opponent, urging every conceivable objection that a discussion of the kind which we are considering may permit.