Institutio Oratoria

It is therefore the duty of both parties to seek to win the judge's goodwill and to divert it from their opponent, as also to excite or assuage his emotions. And the following brief rule may be laid down for the observation of both parties, that the orator should display the full strength of his case before the eyes of the judge, and, when he has made up his mind what points in his case actually deserve or may seem to deserve to excite envy, goodwill, dislike or pity, should dwell on those points by which he himself would be most moved were he trying the case.

But it will be safer to discuss these considerations in detail. The points likely to commend the accuser to the judge have already been stated in my remarks on the exordium. [*]( IV. i 5 sq. ) There are however certain things which require fuller treatment in the peroration than in the exordium, where it is sufficient merely to outline them. This fuller treatment is specially required if the accused be a man of violent, unpopular or dangerous character or if the

Calvus for example in his speech against Vatinius makes an admirable remark:

You know, gentlemen, that bribery has been committed and everybody knows that you know it.

The peroration also provides freer opportunities for exciting the passions of jealousy, hatred or anger. As regards the circumstances likely to excite such feelings in the judge, jealousy will be produced by the influence of the accused, hatred by the disgraceful nature of his conduct, and anger by his disrespectful attitude to the court, if, for instance, he be contumacious, arrogant or studiously indifferent: such anger may be aroused not merely by specific acts or words, but by his looks, bearing and manner. In this connexion the remark made by the accuser of Cossutianus Capito [*]( See Tac. Ann. xiii. 33. Cossutianus was condemned for extortion in his province. His accuser is not known. ) in my young days was regarded with great approval: the words used were Greek, but may be translated thus:—

You blush to fear even Caesar.

The best way however for the accuser to excite the feelings of the judge is to make the charge which he brings against the accused seem as atrocious or, if feasible, as deplorable as possible. Its atrocity may be enhanced by considerations of the nature of the act, the position of its author or the victim, the

Suppose that we are complaining that our client has been beaten. We must first speak of the act itself; we shall then proceed to point out that the victim was an old man, a child, a magistrate, an honest man or a benefactor to the state; we shall also point out that the assailant was a worthless and contemptible fellow, or (to take the opposite case) was in a position of excessive power or was the last man who should have given the blow, or again that the occasion was a solemn festival, or that the act was committed at a time when such crimes were punished with special severity by the courts or when public order was at a dangerously low ebb. Again the hatred excited by the act will be enhanced if it was committed in the theatre, in a temple, or at a public assembly,

and if the blow was given not in mistake or in a moment of passion or, if it was the result of passion which was quite unjustifiable, being due to the fact that the victim had gone to the assistance of his father or had made some reply or was a candidate for the same office as his assailant; or finally we may hint that he wished to inflict more serious injury than he succeeded in inflicting. But it is the manner of the act that contributes most to the impression of its atrocity, if, for example, the blow was violent or insulting: thus Demosthenes [*](in Mid. 72. ) seeks to excite hatred against Midias by emphasising the position of the blow, the attitude of the assailant and the expression of his face.

It is in this connexion that we shall have to consider whether a man was killed by sword or fire or poison, by one wound or several, and

The judges may also be moved by drawing a picture of the future, of the fate which awaits those who have complained of violence and wrong, if they fail to secure justice. They must go into exile, give up their property or endure to the end whatever their enemy may choose to inflict upon them.

But it will more frequently be the duty of the accuser to divert the judge from all the temptations to pity which the accused will place before him, and to incite him to give a strong and dispassionate verdict. It will also be his duty in this connexion to forestall the arguments and actions to which his opponent seems likely to have recourse. For it makes the judge more cautious in observing the sanctity of his oath and destroys the influence of those who are going to reply to us when the arguments used by the defence have already been dealt with by the prosecution, since they lose their novelty. An instance of this will be found in the speech of Messala against Aufidia, [*](cp. IV. ii. 106. See note prefixed to Index. 207. ) where he warns Servius Sulpicius not to talk about the peril which threatens the signatories to the document and the defendant herself. Again Aesehines [*](in Ctes.) foretells the line of defence which Demosthenes will pursue. There are also occasions when the judges should be told what answer they should make to requests on behalf of the accused, a proceeding which is a form of recapitulation.

If we turn to the defendant, we must note that

the cause which has brought the accused into peril may serve to produce the same effect, if, for example, it appears that he has incurred enmity on account of some honourable action: above all his goodness, humanity or pity may be emphasised with this end in view. For it adds to the apparent justice of his claim, if all that he asks of the judge is that he should grant to him what he himself has granted to others. We may also in this connexion lay stress on the interests of the state, the glory which will accrue to the judges, the importance of the precedent which their verdict will set and the place it will hold in the memory of after generations.

But the appeal which will carry most weight is the appeal to pity, which not merely forces the judge to change his views, but even to betray his emotion by tears. Such appeals to pity will be based either on the previous or present sufferings of the accused, or on those which await him if condemned. And the force of our appeal will be doubled if we contrast the fortune which he now enjoys with that to which he will be reduced, if he fail.

In this connexion great play may be made by reference to the age and sex of the accused, or to his nearest and dearest, that is, his children, parents and kindred, all of which topics are treated in

Alas, unhappy that I am! Alas, my unfortunate friend! You succeeded by the agency of those who are now your judges in recalling me to my native land, and cannot I through the same agency retain you in yours?

Who would have endured to hear Milo pleading for his life, when he admitted that he had killed a man of noble birth because it was his duty to do so? Consequently Cicero sought to win the judges' goodwill for Milo by emphasising the staunchness of his character, and himself assumed the role of suppliant. Impersonation may also be employed with profit in such passages, and by impersonations I mean fictitious speeches supposed to be uttered, such as an advocate puts into the mouth of his client. The bare facts are no doubt moving in themselves; but when we pretend that the persons concerned themselves are speaking, the personal note adds to the emotional effect.