Institutio Oratoria

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

propose after making a few preliminary remarks on the subject to give a frank expression of my own views, or in other words to set forth what I perceive to have been the practice of the most distinguished orators.

Tile term enthymeme [*](For this chapter see note prefixed to Index.) is applied not merely to the actual argument, that is to say, the matter adduced to prove something else, but also to its expression, the nature of which, as I have already pointed out, is twofold. [*](cp. v. x. 2. ) It may be drawn from denial of consequents, when it will consist of a proposition immediately followed by a proof, as in the following passage from the pro Ligario; [*]( vi. 19. The cause helped by heaven is that of Caesar. cp. Lucan's victrix causa deis placuit, sed victa Catoni. )

At that point the justice of the cause was doubtful, since there was something to be said on both sides. But now we can only regard that cause as superior, which even the gods supported.

It may on the other hand be drawn from incompatibles, in which case the proof will be much stronger; indeed some restrict the title of enthymeme [*](cp. v. x. 2. ) to this form of argument. The following passage from the pro Milone [*](xxix. 79. The death is that of Clodius.) of Cicero will provide a parallel:

You are then sitting there to avenge the death of a man whom you would refuse to restore to life, even if you thought it within your power to do so.

This form of argument may even at times consist of a number of clauses, as in the following passage from the same speech [*](xvi. 41.) :

Was he resolved then to kill to the dissatisfaction of some a man whom he refused to kill to the satisfaction of all? Are we to believe that he did not hesitate, in defiance of the law and

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despite the unfavourable circumstances both of time and place and the risk involved to his own life, to kill one whom he did not venture to kill when he might have done so legally, at his own time and place and without the least danger to himself?

The most effective kind of enthymeme seems however to be that in which a reason is subjoined to a dissimilar or contrary proposition as in the following passage from Demosthenes [*](in Androt. § 7; in Aristocr. § 99. ) :

For if at any time an act has been committed contrary to law and you have imitated it, it does not therefore follow that you should go scot free; on the contrary it is an additional reason why you should be condemned. For if any of those who transgressed the law had been condemned, you would not have proposed this, and further, if you are condemned, no one else will propose anything of the kind.

As regards the epicheieme, some authorities hold that it consists of four, five, and even six parts. Cicero [*](de Inv. I. xxxvii. 67. ) urges that there are not more than five at most, i.e. the major premise and its reason, the minor premise and its proof, and fifthly the conclusion. But since at times the major premise does not require a reason nor the minor a proof, while occasionally even the conclusion is not necessary, he holds that the epicheireme may consist of only four, three, or even two parts.