Institutio Oratoria

Similarly, it may be shown that charges are hasty, insidious or vindictive. The strongest argument, however, which can be brought against a charge is that it involves peril to the community or to the judges themselves; we find an example of the former in the pro Tullio, [*](cp. IV. ii. 131. The speech is lost. ) where Cicero says

Who ever laid down such a principle as this, or who could be allowed, without grave peril to the community, to kill a man, just because he asserts that he feared that he himself might be

v4-6 p.325

killed by him?

On the other hand there are certain arguments which at times may best be treated with contempt, as being trivial or irrelevant. This course is frequently pursued by Cicero, indeed this affectation of indifference is sometimes carried so far that we trample disdainfully under foot arguments which we should never succeed in refuting by counter-argument.

Since, however, the majority of such arguments are based on similarity, we must make diligent search to discover if any discrepancy is to be found in what is put forward. It is easy to do this where points of law are concerned. For the law was drafted to cover cases quite other than the present, and consequently it is all the easier to show the difference between case and case. As to parallels drawn from dumb animals or inanimate objects, they are easy to make light of.

Examples drawn from facts, if damaging to our case, must be treated in various ways: if they are ancient history, we may call them legendary, while if they are undoubted, we may lay stress on their extreme dissimilarity. For it is impossible for two cases to be alike in every detail. For instance, if the case of Ahala,2 by whom Maelius was killed, is quoted to justify Nasica for the slaying of Tiberius Gracchus, we may argue that Maelius was endeavouring to make himself king, while all that Gracchus had done was to bring forward laws in the interest of the people, and that while Ahala was Master of the Horse, Nasica was a private citizen. In the last resort, if all else prove unavailing, we must see if

With regard to my statement that the manner in which the accuser stated his charges was of importance, I would point out in this connexion that if he has spoken but feebly, we may repeat his actual words; while, if he has used bitter and violent language, we may restate the facts in milder terms, as Cicero does in the pro Cornelio, where he says,

He put his hand to the tablet containing the law

and we may do this in such a way as to defend our client; for instance, if our client is addicted to luxury, we may say,

He has been charged with living in a somewhat too liberal style.

But we must never under any circumstances repeat our opponent's charges together with their proofs, nor emphasise any of his points by amplifying them, unless we do so with a view to making light of them, as for instance in the following passage [*](pro. Mur. ix. 21. ) :

You have been with the army, he says, and have not set foot in the forum for so many years, and do you now on returning after so long an interval seek to compete for a post of high dignity with those who have made the forum their home?

Again, when we are replying to the accuser we may sometimes set forth the whole charge, as Cicero does in the pro Scauro with reference to the death of Bostar, [*](cp. IV. i. 69. Scaurus was accused of extortion in Sardinia, and of having murdered a certain Bostar at a banquet. ) where he virtually parodies the speech of his opponent, or we may take a number of points raised in the course of the accusation and put them together as in the pro Vareno : [*](cp. v. x. 69. )

They have asserted that, when he was

v4-6 p.329

journeying with Pompulenus through a lonely stretch of country, he fell in with the slaves of Ancharius, that Pompulenus was then killed and Varenus imprisoned on the spot until such time as this man should indicate what he wished to be done with him.

Common arguments [*](i.e. are easy to make use of. ) are readily appropriated, not merely because they can be used by either party, but because they are of greater service to the speaker who is replying; for I shall not scruple to repeat the warning which I have often given already; the speaker who is first to employ such an argument makes it tell against himself.

For an argument must needs tell against a speaker if it be one which his opponent can use with effect.

But, you say, it is not probable that a crime of this magnitude was designed by Marcus Cotta. Is it probable then that a crime of this magnitude was attempted by Oppius?

accuses Ligarius of having been in Africa, and complains that Ligarius refused to allow him to land in Africa. At times, however, some ill-advised statement by our opponent will give us an opportunity of demolishing his arguments. This is specially likely to occur with speakers who have a passion for producing impressive thoughts: for the temptation to air their eloquence is such that they take no heed of what they have said already, being absorbed by the topic immediately before them to the detriment of the interests of the case as a whole.

What is there likely to tell so heavily against Cluentius as the stigma inflicted by the censors? What can be more damaging than the fact that Egnatius disinherited his son on the ground that lie had been bribed to give a false verdict in the trial in which Cluentius secured the condemnation of Oppianicus? But Cicero [*](pro Cluent. xlviii. 135. )

shows that the two facts tell against one another.

But, Attius, I would urge you to give the closest consideration to the following problem. Which do you desire to carry the greater weight—the judgment of the censors, or of Egnatius? If the latter, you regard the judgment of the censors in other cases as counting for little, since they expelled this same Gnaeus Egnatius, on whose authority you lay such stress, from his place in the senate. On the other hand, if you attach most weight to the judgment of the censors, I must point out that the censors retained the younger Egnatius, whom his father disinherited by an act resembling a censorial decision, in his position as senator, although they had expelled his father.

the folly

and attribute personal faults to circumstances, as for instance if a speaker should attack the decemvirate instead of Appius. They will also contradict what is obvious, speak ambiguously, lose sight of the main issue of the case, or give replies which have no relation to the charges made. This latter procedure may, it is true, be occasionally employed when we have a bad case which requires to be supported by arguments drawn from matters foreign to the case. The trial of Verres provides an example; when accused of peculation it was alleged that he had shown courage and energy in his defence of Sicily against the pirates.

The same rules apply to objections which we may have to meet. But there is one point which requires special attention, since in such cases many speakers fall into two very different faults. For some even in the courts will pass by such objections when raised by their opponents as troublesome and vexatious details, and, contenting themselves with the arguments which they have brought ready-made

On the other hand there are some who surfer from excess of zeal, and think it their duty to reply to every word and even every trifling reflexion, a task which is at once endless and superfluous. For it is not the case. but the pleader, whom they are refuting. Personally I should always prefer that a speaker should reveal his eloquence in such a way that, if what he says advances his case, the credit will be given to his talent and not to the nature of his case, while if what he says damages his case the blame will attach to the case and not to his powers.

Consequently when we come across denunciations such as that directed against Rullus for the obscurity of his language, [*](de Leq. Agr. II. v. 13. ) or against Piso for his utter incapacity as a speaker, [*](in Pis. i. 30, etc. ) or against Antony [*](Phil. ii. 4, iii, 4, xiii. 19, etc. ) for his lack of taste and his complete ignorance both of words and things, we shall give then our sanction as reasonable concessions to passion and just resentment, and as useful in stirring up hatred against those whom it is desired to render unpopular.

The method of reply to our opponent's counsel should be on different lines. Sometimes however we are justified in attacking, not merely their manner of speaking, but also their character, their appearance, their gait or bearing. Indeed, in his attack on Quintius, Cicero [*](pro Cluents xl. III. ) does not confine himself to these topics, but even attacks his purple-bordered toga that goes trailing to his heels: for Quintius had caused Cluentius grave

Sometimes, in order to dispel the unpopularity excited by bitter criticism, the latter may be disposed of by a jest, as for example Cicero disposes of Triarius. For to the allegation that the pillars destined for the house of Scaurus were carried on waggons through the city streets he replied, [*](pro Scauro xxii. 46. )

I got my pillars from the quarries of Alba, and had them brought in panniers!