Institutio Oratoria

It is, however, on the judge that we shall pin our highest hopes, if the circumstances be such that acquittal will result in giving him a reputation for clemency rather than for regrettable weakness. But even in the ordinary courts appeals for mercy are frequently employed to a large extent, although they will not colour the whole of our pleading. For the following form of division is common:—

Even if he had committed the offence, he would have deserved forgiveness,

Sometimes indeed the whole case may rest on such considerations. For example, if a father has made an express declaration that he has disinherited his son because lie was in love with a woman of the town, will not the whole question turn on the point whether it was the father's duty to pardon such an offence and whether it is the duty of the centumviral court to overlook it? Nay, even in penal prosecutions governed by strict forms of law we raise two separate questions: first whether the penalty has been incurred, and secondly whether, if so, it ought to be inflicted. Still the view of the authorities to whom I have referred that an accused person cannot be saved from the clutches of the law by this method of defence is perfectly correct.

With regard to rewards, there are two questions which confront us: namely, whether the claimant is

The place may also be discussed in a number of ways: was the city in which the tyrant was killed one inured to tyranny or one which had always been free? was he killed in the citadel or in his own house? The means, too, and the time call for consideration: was he killed by poison or the sword? was he killed in time of peace or war, when he was intending to lay aside his power or to venture on some fresh crime?

Further, in considering the question of merit, the danger and difficulty of the act will carry great weight, while with regard to liberality it will similarly be of importance to consider the character of the person from whom it proceeds. For liberality is more pleasing in a poor man than in a rich, in one who confers than in one who returns a benefit, in a father than in a childless man. Again, we must consider the immediate object of the gift, the occasion and the intention, that is to say, whether it was given in the hope of subsequent profit; and so on with a number of similar considerations. The question of quality therefore makes the highest demands on the resources of oratory, since it affords the utmost scope for a display of talent on either side,

For conjecture has often to introduce proofs from without and uses arguments drawn from the actual subject matter, whereas the real task of eloquence is to demonstrate quality: there lies its kingdom, there its power, and there its unique victory. Verginius includes under quality cases concerned with disinheritance, lunacy, cruelty to a wife, and claims of female orphans to marry relatives. The questions thus involved are, it is true, frequently questions of quality, while some writers style them questions of moral obligation.

But the laws governing these cases sometimes admit of other bases. For example, conjecture is involved in quite a number of such cases, as when the accused urges either that he did not commit the act or, if he did, acted with the best intentions. I could quote many examples of this kind. Again, it is definition which tells us what precisely is meant by lunacy or cruelty to a wife. [*]( The general sense of 25 and 26 is clear. These cases do not always come under the status qualitatis: they not infrequently come under the status coniecturalis and finitivus. They cannot however, strictly be said to come under the states legalis, since although the leges of such scholastic themes do involve certain questions of law, these are not such as to constitute the status legally. Still in the last resort such cases may be argued on legal grounds. The text adopted for the last sentence of 25 is that which involves the least change, but it is highly obscure and the corruption may well lie deeper still. For the whole question of bases, which is highly technical, see III, vi. ) For as a rule the laws cited in such themes involve certain legal questions, though not to such an extent as to determine the basis of the case.

But this notwithstanding, if the actual fact cannot be defended, we may in the last resort base our defence on legal grounds, in which case we shall consider how many and what cases there are in which a father may not disinherit his son, what charges fail to justify an action for cruelty, and under what circumstances a son is not allowed to accuse his father of lunacy.

Disinheritance may be of two kinds. In the first case it is for a completed crime: for example, the son who is disinherited may be a ravisher or an adulterer: in the second case it is for a crime which is still incomplete and terminable [*]( Literally conditional. The sense, however, is that the disinheritance is only conditional on the disobedience being continued. ) ; an instance of this will be the case where the son is disinherited because of disobedience to his father. The first form of disinheritance always demands a certain harshness when the father pleads his case, since the act is irrevocable, whereas in the latter his pleading will be of a kindly and almost persuasive nature, since he would prefer not to disinherit him. On the other hand, the pleading of the sons should in both cases be of a subdued character and couched in a conciliatory tone.

I know that those who delight in making covert attacks upon the father under the disguise of some figure of speech will disagree with me: and I would not deny that their procedure may sometimes be justifiable, since the theme may conceivably be such as to demand it; but it is certainly to be avoided wherever possible. However, I shall deal with the whole question of figures in a later book. [*](Book IX. See especially IX. ii. 65 sqq.)

The treatment of the theme of cruelty to a wife is not unlike that of the theme of disinheritance; for both demand a certain moderation on the part of the accuser. Cases concerned with lunacy arise either out of what has been done or out of something which may or may not be done in the future.

In the former case the pleader is free to attack as he will, but must none the less do so in such a manner that, while denouncing the act, he will yet express pity for the father on the ground that he has erred by reason of his infirmity. On the other hand, in the latter case, where the act has not

The accused, wherever possible, must assume a temperate tone in his defence, for the reason that as a rule anger and excitement are near akin to madness. All these cases have this much in common, that the accused does not always defend his act, but often pleads excuse and asks for pardon. For these are domestic quarrels, in which the fact that the offence is an isolated case, due to error and of a less serious character than alleged, will sometimes suffice to secure an acquittal.

There are, however, a number of other controversial themes involving quality, as, for example, cases of assault. In these, although at times the accused denies that he committed the assault, the pleading as a rule is concerned with fact and intention.

Then there are cases concerned with the appointment of a prosecutor, which are known as divinations. In this connexion Cicero, who was indicting Verres on the instruction of our Sicilian allies, adopts the following division-to the effect that the main point for consideration is, by whom those the redress of whose wrongs forms the subject of the trial would prefer to be represented, and by whom the accused would least desire them to be represented.