Institutio Oratoria

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

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

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

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,

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

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

A most attractive form of exordium is that which draws its material from the speech of our opponent, if only for the reason that the fact of its not having been composed at home, but having been improvised on the spot to meet the needs of the case increases the orator's reputation for natural talent by the readiness with which it is produced and carries conviction owing to the simple and ordinary language in which it is clothed. As a result, even although the rest of the speech has been committed to writing and carefully elaborated, the whole of the speech will often be regarded as extempore, simply because its commencement is clearly not the result of previous study.

Indeed a certain simplicity in the thoughts, style, voice and look of the speaker will often produce so pleasing an effect in the exordium that even in a case where there is no room for doubt the confidence of the speaker should not reveal itself too openly. For as a rule the judge dislikes self-confidence in a pleader, and conscious of his rights tacitly demands the respectful deference of the orator.

No less care must be taken to avoid exciting any suspicion in this portion of our speech, and we should therefore give no hint of elaboration in the exordium, since any art that the orator may employ at this point seems to be directed solely at the judge.

But to avoid all display of art in itself requires consummate art: this admirable canon has been insisted on by all writers, though its force has been somewhat impaired by present conditions, since in certain trials, more especially those brought on capital charges or in the centumviral [*]( The court of the cettumviri was specially concerned with cases of inheritance. ) court, the judges themselves demand the most finished and

It is difficult to preserve the happy mean in carrying this precept into effect: but by a skilful compromise it will be possible to give the impression of speaking with care but without elaborate design. The old rule still holds good that no unusual word, no overbold metaphor, no phrase derived from the lumber-rooms of antiquity or from poetic licence should be detected in the exordium.

For our position is not yet established, the attention of the audience is still fresh and imposes restraint upon us: as soon as we have won their good-will and kindled their interest, they will tolerate such freedom, more especially when we have reached topics whose natural richness prevents any licence of expression being noticed in the midst of the prevailing splendour of the passage.

The style of the exrordiumn should not resemble that of our purple patches nor that of the argumentative and narrative portions of the speech, nor yet should it be prolix or continuously ornate: it should rather seem simple and unpremeditated, while neither our words nor our looks should promise too much. For a method of pleading which conceals its art and makes no vain display, being as the Greeks say ἀνεπίφατος [*](i.e. unobtrusive. ) will often be best adapted to insinuate its way into the minds of our hearers. But in all this we must be guided by the extent to which it is expedient to impress the minds of the judges.