Institutio Oratoria

There are two ways of bringing fear to bear upon the judges. The commonest and most popular is to threaten them with the displeasure of the Roman people or the transference of the juries to another class [*](e.g. in the Verrines Cicero points out to the jury, then drawn entirely from senators, that they are on their trial. If they fail in their duty, the constitution of the panels will be altered and the equites be admitted as well. ) ; the second is somewhat brutal and is rarely employed, and consists in threatening them with a prosecution for bribery: this is a method which is fairly safe with a large body of judges, since it checks the bad and pleases the good members of the jury, but I should never recommend its employment with a single judge [*]( It must be borne in mind that iudex may be a juryman forming one of a large panel, or a single judge trying a civil action. ) except in the very last resort.

But if necessity should drive us to such a course, we must remember that such threats do not come under the art of oratory, any more than appeals from the judgment of the court (though that is often useful), or the indictment of the judge before he gives his decision. For even one who is no orator can threaten or lay an information.

If the case affords us the means of winning the favour of the judge, it is important that the points which seem most likely to serve to our purpose should be selected for introduction into the exordium.

but merely that the judge should be prepared for the most important of the questions that are to be raised. There is nothing to object to in this rule, save that he would make it of universal application, whereas it is not possible with every question nor desirable in every case. For instance, seeing that the plaintiff's advocate speaks first, and that till he has spoken the judge is ignorant of the nature of the dispute, how is it possible for us to introduce reflexions relating to all the questions involved? The facts of the case must be stated before that can be done. We may grant that some questions may be mentioned, for that will sometimes be absolutely necessary; but can we introduce all the most important questions, or in other words the whole case? If we do we shall have completed our statement of facts within the limits of the exordium. Again if, as often happens,

the case is somewhat difficult, surely we should seek to win the good-will of the judge by other portions of our speech sooner than thrust the main questions upon him in all their naked harshness before we have done anything to secure his favour. If the main questions ought always to be treated at the beginning of a speech, we might dispense with the exordium.

We shall then occasionally introduce certain points from the main questions into the exordium, which will exercise a valuable influence in winning the judge to regard us with favour. It is not necessary to enumerate

Just, however, as it is in the interest of our case to note and amplify these points, so it is also to rebut or at any rate lessen the force of anything that is damaging to our case. Again our case may justify an appeal to compassion with regard to what we have suffered in the past or are likely to suffer.

For I do not share the opinion held by some, that the exordium and the peroration are to be distinguished by the fact that the latter deals with the past, the former with the future. Rather I hold that the difference between them is this: in our opening any preliminary appeal to the compassion of the judge must be made sparingly and with restraint, while in the peroration we may give full rein to our emotions, place fictitious speeches in the mouths of our characters, call the dead to life, and produce the wife or children of the accused in court, practices which are less usual in exordia.

But it is the function of the exordium not merely to excite the feelings to which I have alluded, but to do all that is possible to show that our opponent's case is not deserving of them. It is advantageous to create the impression not merely that our fate will be deserving of pity, if we lose, but that our adversary will be swollen with outrageous insolence if he prove successful.

But exordia are often drawn from matters which do not, strictly speaking, concern either cases or the persons involved, though not unrelated to either.

As regards external circumstances [*]( In the pro Caelio (c. 1) Cicero calls attention to the fact that the trial is taking place during a festival, all other legal business being suspended. In the pro Deiotaro (c. 2) he calls attention to the unusual surroundings, the speech being delivered in a private house. For the pro Milone see § of this chapter. In the first Verrme (c. 1) he remarks that it is generally believed that the corruption of the courts is such that it is practically impossible to secure the condemnation of a wealthy man. ) which have a bearing on the case, I may mention time, which is introduced in the exordium of the pro Caelio, place (in the pro Deiotaro ),the appearance of the court (in the pro Milone ),public opinion (in the Verrines ),and finally, as I cannot mention all, the ill-repute of the law courts and the popular expectation excited by the case. None of these actually belong to the case, but all have some bearing on it.

Theophrastus adds that the exordium may be drawn from the speech of one's opponent, as that of the pro Ctesiphonte of Demosthenes appears to be, where he asks that he may be allowed to speak as he pleases and not to be restricted to the form laid down by the accuser in his speech.

Confidence often labours under the disadvantage of being regarded as arrogance. But there are certain tricks for acquiring good-will, which though almost universal, are by no means to be neglected, if only to prevent their being first employed against ourselves. I refer to rhetorical expressions of wishing, detestation, entreaty, or anxiety. For it keeps the judge's attention on the alert, if he is led to think the case novel, important, scandalous, or likely to set a precedent, still more if he is excited by concern for himself or the common weal, when

We shall also find it a useful device for wakening the attention of our audience to create the impression that we shall not keep them long and intend to stick closely to the point. The mere fact of such attention undoubtedly makes the judge ready to receive instruction from us, but we shall contribute still more to this effect if we give a brief and lucid summary of the case which he has to try; in so doing we shall be following the method adopted by Homer and Virgil at the beginning of their poems.

For as regards the length of the exordium, it should propound rather than expound, and should not describe how each thing occurred, but simply indicate the points on which the orator proposes to speak. I do not think a better example of this can be found than the exordium to the pro Cluentio of Cicero.

I have noted, judges, that the speech for the prosecution was divided into two parts: of these, the first seemed to rest and in the main to rely on the odium, now inveterate, arising from the trial before Junius, while the other appeared to touch, merely as a matter of form, and with a certain timidity and diffidence, on the question of the charge of poisoning, though it is to try this point that the present court has been constituted in accordance with the law.

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

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.