Institutio Oratoria

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.

For then the judge seems no longer to be listening to a voice bewailing another's ills, but to hear the voice and feelings of the unhappy victims, men whose appearance alone would call forth his tears even though they uttered never a word. And as their plea would awaken yet greater pity if they urged it with their own lips, so it is rendered to some extent all the more effective when it is, as it were, put into their mouth by their advocate: we may draw a parallel from the stage,

although he will not put entreaties into Milo's mouth, and prefers to commend him by his staunchness of character, still lends him words in the form of such complaint as may become a brave man. [*](pro Mil. xxxiv. 94. )

Alas!

my labours have been in vain! Alas for my blighted hopes! Alas for my baffled purpose!

Time assuages even genuine grief, and it is therefore inevitable that the semblance of grief portrayed in our speech should vanish yet more rapidly. And if we spend too much time over such portrayal our hearer grows weary of his tears, takes a breathing space, and returns once more to the rational attitude from which lie has been distracted by the impulse of the moment.

We must not, therefore, allow the effect which we have produced to fall flat, and must consequently abandon our appeal to the emotion just when that emotion is at its height, nor must we expect anyone to weep for long over another's ills. For this reason our eloquence ought to be pitched higher in this portion of our speech than in any other, since, wherever it fails to add something to what has preceded, it seems even to diminish its previous effect, while a diminuendo is merely a step towards the rapid disappearance of the emotion.

Actions as well as words may be employed to move the court to tears. Hence the custom of

The impression produced by such exhibitions is generally enormous, since they seem to bring the spectators face to face with the cruel facts. For example, the sight of the bloodstains on the purple-bordered toga of Gaius Caesar, which was carried at the head of his funeral procession, aroused the Roman people to fury. They knew that he had been killed; they had even seen his body stretched upon the bier: but his garment, still wet with his blood, brought such a vivid image of the crime before their minds, that Caesar seemed not to have been murdered, but to be being murdered before their very eyes.

Still I would not for this reason go so far as to approve a practice of which I have read, and which indeed I have occasionally witnessed, of bringing into court a picture of the crime painted on wood or canvas, that the judge might be stirred to fury by the horror of the sight. For the pleader who prefers a voiceless picture to speak for him in place of his own eloquence must be singularly incompetent.

On the other hand, I know that the wearing of mourning and the presentation of an unkempt appearance, and the introduction of relatives similarly arrayed, has proved of value, and that entreaties have been of great service to save the accused from condemnation. The practice therefore of appealing to the judges by all that is near and dear to them will be

Invocation of the gods, again, usually gives the impression that the speaker is conscious of the justice of his cause, while it may produce a good effect if the accused throws himself on the ground and embraces the knees of the judges, unless his character, his past life and station prohibit a resort to this device: for there are some acts which require to be defended with no less boldness than was required for their commission. But we must take care not to carry matters with too high a hand, for fear of creating a bad impression by an appearance of over-confidence. [*](i.e. although such entreaties are effective, they cannot always be employed. Thus they would have been out of place in the case of Milo, whose character was such that it was necessary to defend him with a boldness worthy of the boldness required to perform the deed of which he was accused. Still we must not carry such methods ( e.g. such as Cicero employs on behalf of Milo) too far. )

The most effective of all such methods was in times past that by which more than anything else Cicero is considered to have saved Lucius Murena [*](pro Mur. xxxvii. 79. ) from the attacks of his accusers, who were men of the greatest distinction. For he persuaded the court that nothing was more necessary in view of the critical position of affairs than that Murena should assume the consulship on the thirty-first of December. This form of appeal is now, however, almost entirely obsolete, since the safety of the state is to-day dependent on the watchful care of a single ruler, and cannot conceivably be imperilled by the result of a trial.