Institutio Oratoria

As regards good-will, we secure that either from persons connected with the case or from the case itself. Most writers have divided these persons into three classes, the plaintiff, the defendant and the judge.

This classification is wrong, for the exordium may sometimes derive its conciliatory force from the person of the pleader. For although he may be modest and say little about himself, yet if he is believed to be a good man, this consideration will exercise the strongest influence at every point of the case. For thus he will have the good fortune to give the impression not so much that he is a zealous advocate as that he is an absolutely reliable witness. It is therefore pre-eminently desirable that he should be believed to have undertaken the case out of a sense of duty to a friend or relative, or even better, if the point can be made, by a sense of patriotism or at any rate some serious moral consideration. No doubt it is even more

But just as the authority of the speaker carries greatest weight, if his undertaking of the case is free from all suspicion of meanness, personal spite or ambition, so also we shall derive some silent support from representing that we are weak, unprepared, and no match for the powerful talents arrayed against us, a frequent trick in the exordia of Messala.

For men have a natural prejudice in favour of those who are struggling against difficulties, and a scrupulous judge is always specially ready to listen to an advocate whom he does not suspect to have designs on his integrity. Hence arose the tendency of ancient orators to pretend to conceal their eloquence, a practice exceedingly unlike the ostentation of our own times.

It is also important to avoid giving the impression that we are abusive, malignant, proud or slanderous toward any individual or body of men, especially such as cannot be hurt without exciting the disapproval of the judges.

As to the judge, it would be folly for me to warn speakers not to say or even hint anything against him, but for the fact that such things do occur. Our opponent's advocate will sometimes provide us with material for our exordium: we may speak of him in honorific terms, pretending to fear his eloquence and influence with a view to rendering them suspect to the judge, or occasionally, though very seldom, we may abuse him, as Asinius did in his speech on behalf of the heirs of Urbinia, where he includes among the proofs of the weakness of the plaintiff's case the fact that he has secured Labienus as his advocate.

Cornelius Celsus denies that such remarks can be considered as belonging to the exordium on the ground that they are irrelevant to the actual case. Personally I prefer to follow the authority of the greatest orators, and hold that whatever concerns the pleader is relevant to the case, since it is natural that the judges should give readier credence to those to whom they find it a pleasure to listen.

The character of our client himself may, too, be treated in various ways: we may emphasise his worth or we may commend his weakness to the protection of the court. Sometimes it is desirable to set forth his merits, when the speaker will be less hampered by modesty than if he were praising his own. Sex, age and situation are also important considerations, as for instance when women, old men or wards are pleading in the character of wives, parents or children.

For pity alone may move even a strict judge. These points, however, should only be lightly touched upon in the exordium, not run to death. As regards our opponent he is generally attacked on similar lines, but with the method reversed. For power is generally attended by envy, abject meanness by contempt, guilt and baseness by hatred, three emotions which are powerful factors to alienate the good-will of the judges.

But a simple statement will not suffice, for even the uneducated are capable of that: most of the points will require exaggeration or extenuation as expediency may demand: the method of treatment belongs to the orator, the points themselves belong to the case. We shall win the good-will of the judge not merely by praising him,

which must be done with tact and is an artifice common to both parties, but

I should also wish, if possible, to be acquainted with the character of the judge. For it will be desirable to enlist their temperaments in the service of our cause, where they are such as are like to be useful, or to mollify them, if they are like to prove adverse, just according as they are harsh, gentle, cheerful, grave, stern, or easy-going. It will, however,

sometimes happen that the judge is hostile to us and friendly to our adversaries. Such cases demand the attention of both parties and I am not sure that the party favoured by the judge does not require to handle the situation with even more care than his opponent. For perverse judges have sometimes a preposterous tendency to give judgment against their friends or in favour of those with whom they have a quarrel, and of committing injustice merely to avoid the appearance of partiality.

Again some have been judges in cases where their own interests were involved. I note, for instance, in the books of observations published by Septimius that Cicero appeared in such a case, while I myself, when I appeared on behalf of Queen Berenice, actually pleaded before her. In such cases we must be guided by the same principles that I have laid down above. The opponent of the judge will emphasise his confidence in the justice of his client's cause, while the advocate of his interests will express the fear that the judge may be influenced

Further, if the judge is thought to have come into court with a prejudice in favour of one side, we must try to remove or strengthen that prejudice as circumstances may demand. Again occasionally we shall have to calm the judges' fears, as Cicero does in the pro Milone, where he strives to persuade them not to think that Pompey's soldiers have been stationed in the court as a threat to themselves. Or it may be necessary to frighten them, as Cicero does in the Verrines. [*](i. 15.)

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.