Institutio Oratoria

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

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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!

On the other hand there is no objection to complaining of the conduct of the advocates on either side, so long as our complaint follows accepted practice and does not overstep the limits imposed by good manners; I refer to complaints such as that our opponents have abridged, obscured or postponed the discussion of some point, or with deliberate cunning have avoided discussing it at all.

A change in the tactics of defence is also often selected for censure. For example, Attius [*](pro Cluent. Iii. ) in his speech against Cluentius complains that Cicero insists on the letter of the law, and Aeschines [*]( Aesch. in Ctes. § 206. cp. also III. vi. 3. ) in his speech against Ctesiphon complains that Demosthenes refuses to consider the legal aspect of the case. It is however necessary to issue a special warning to declaimers that they should not put forward objections that can easily be met or assume that their opponent is a fool. As it is, owing to our tendency to think that the subject-matter of our speech may be drawn from our own fancy, florid commonplaces and epigrams designed to bring down the house occur to our minds with the utmost

1. A shrewd retort! Could it be otherwise?
2. A foolish question makes for smart replies.

Origin unknown.

But such a practice will be fatal in the courts, where we have to answer our opponent and not ourselves. It is said that Accius, when asked why he did not turn advocate in view of the extraordinary skill in making apt replies which his tragedies revealed, replied that in his plays the characters said what he himself wanted them to say, whereas in the courts his adversaries would probably say just what he least wanted them to say.