Institutio Oratoria

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.

It is therefore ridiculous in exercises which prepare the student for the actual courts to consider what answer can be made before ever giving a thought to what the opposing counsel is likely to say. And a good teacher should commend a pupil no less for his skill in thinking out arguments that may be put forward for the opposite side than in discovering arguments to prove his own case.

Again, there is another practice which is always permissible in the schools, but rarely in the courts. For when we speak first as claimants in a real case, how can we raise objections, seeing that our opponent has so far said nothing?

Still, many fall into this error either because they have acquired the habit in declamation or simply owing to a passion for hearing their own voice, thereby affording fine sport to those who reply: for sometimes the latter will remark sarcastically that they never said anything of the kind and have no intention of saying anything so idiotic, and sometimes that they are grateful for the admirable

We may find an example of this in the pro Cluentio [*](lii. 143.) of Cicero:

You have frequently asserted that you are informed that I intend to base my defence on the letter of the law. Really! I suppose that my friends have secretly betrayed me, and that there is one among those whom I believe to be my friends who reports my designs to my opponent. Who gave you this information? Who was the traitor? And to whom did I ever reveal my design? No one, I think, is to blame. It must have been the law itself that told you.

not content with raising imaginary objections, develop whole passages on such themes, saying that they know their opponents will say this and will proceed to argue thus and thus. I remember that Vibius Crispus in our own day disposed of this practice very neatly, for he was a humorous fellow with a very pretty wit:

I do not make those objections which you attribute to me,

for what use would it be to make them twice?

Sometimes however it may be possible to put forward something not unlike such objections, if some point included by our opponent in the depositions which he produces has been discussed among his advocates [*]( The exact purport is not clear. The reference would seem to be to information as to the line of defence likely to be adopted, which has leaked out during a discussion of the written evidence by the advocati or legal advisers of the patronus. But see note prefixed to Index. ) : for then we shall be replying to something which they have said and not to an objection which has been invented by ourselves; or again, this will be possible if the case is of such a nature that we

On the other hand, in the schools we are quite justified in answering both statements and imaginary objections; for by these means we shall train ourselves at one and the same time for speaking either first or second. Unless we do this, we shall have no chance of employing objections, since there is no adversary to whom we can reply.

There is another serious fault into which pleaders fall: the anxious over-elaboration of points. Such a procedure makes his case suspect to the judges, while frequently arguments which, if stated without more ado, would have removed all doubt, lose their force owing to the delay caused by the elaborate preparations made for their introduction, due to the tact that the advocate thinks that they require additional support. Our orator must therefore adopt a confident manner, and should always speak as if he thought his case admirable. This quality, like all other good qualities, is particularly evident in Cicero.

For the extraordinary care which he takes gives the impression of confidence and carries such weight when lie speaks that it does not permit us to feel the least doubt and has all the force of genuine proof. Further, the advocate who knows what are the strongest points in his own and his opponent's case will easily be able to decide what points it

As regards order, there is no part of a case which involves less trouble. For, if we are prosecuting, our first duty will be to prove our own case, our second to refute the arguments brought against it. If, on the other hand, we are defending, we must begin by refutation.

But from our answers to objections fresh objections will arise, a process which may be carried to some length. The strokes [*]( Not enough is known of gladiatorial fighting to render this passage fully intelligible. ) of gladiators provide a parallel. If the first stroke was intended to provoke the adversary to strike, the second will lead to the third, while if the challenge be repeated it will lead to the fourth stroke, so that there will be two parries and two attacks. And tile process may be prolonged still further.

But refutation also includes that simple form of proof, which I described above, [*](v. xii. 12.) based on an appeal to the emotions and mere assertion; for an example see the words of Scaurus which I have already quoted. [*](v. xii. 10.) Nay, I am not sure that this form of proof is not actually of more frequent occurrence when something is denied. It is, however, specially important for both parties that they should see where the main issue lies. For it often happens that the points raised in pleading are many, although those on which a decision is given are few.

Such are the elements of the methods of proof and refutation, but they require to be embellished and supported by the powers of the speaker. For although our arguments may be admirably adapted to express what we desire, they will none the less be slight and weak unless the orator makes a special effort to give them life.

Consequently the

Some again prepare the mind of the judge, while others confirm it in opinions already formed. But such preparation or confirmation will sometimes apply to the whole case, sometimes only to particular portions, and must therefore be employed with due regard to circumstances.

I am consequently surprised that there should be a violent dispute between the leaders of two opposite schools as to whether such commonplaces should be applied to individual questions (which is the view of Theodorus), or whether the judge should be instructed in the facts before any appeal is made to his feelings (the latter being the view of Apollodorus), as though no middle course were possible and no regard were to be had to the exigencies of the case itself. Those who lay down such rules have no experience of speaking in the actual courts, the result being that text-books composed in the calm leisure of the study are sadly upset by the necessities of forensic strife.

For practically all those who have set forth the law of speaking as though it were a profound mystery, [*](cp. v. xiv. 27. ) have tied us down not merely to fixed topics for argument, but to definite