' A species of ridicule espresBod in a pitliy aeatence. The esample prodQ<!«l requires tint we should eiplain the Cincian Isw. This canuot he done better than in the words of Dr. Hiddletoa, The buBineu of pleading. Bays hs. though a profeBsion of all others the mast laborions, yet wu not amoug ths Romans meroaQaiy, or undartoketi for any pay; for it w«a illegal to take money, or to accept eren a present for it; but the richest, the gteaMst. and the nohleet of Rotno freely oSered their talente to the service of their citizens, as the common guardiaiu and protectors of the iunoi^ut and distreased. Tliis was au institution as old a» KomulaB, who oaiigDed the patronage of the people to the patrlciasa or senators, witbuut fee or rewnrd; but in succeeding ages, when, through the UTariec of the nobles, it hod become e, custom for all clients to mole annual preaenta to thar patrona, by which the body of the citiKeuB was made tribntary as it were to the senate, U. Ciiioiu«, a tribnne, published a, law pruhibitiag all Benatots to take money or gifts ou any account, and especuUiy for pleading causes. This Cmaiaa htw was made in the yeai' of Rome 649; and recomniended to the people, ss Cicero tellB us, (De Saucct. 4,) by Quintua Fabius Maiimus, in tie eitretnity of his age, Caius Centa was one of the orators who opposed it. liry, uet. i, gives us the reason for paasmg tliia law, " Quid legem Cioniam de donia ct muneribuH, Qisi quia Teotigalia jam et atipeodiaria plehs ease aenatui cioperat!" It la also mentioned tiy Tacitus, Ain"J^l ^ 6- "Cousur^unt patres legemque Cinciam fliLgitant, qua 4aTetnr aalii^mtus ne quis ob caiiaam orandsjn pecuniara donumTe wmipiat." We also find from the asims author, (xL T,) that thia law was not well oliserred in Cicero's time: " prompta sibi eiempla quantia meniedibua P. Clodius aut C. Curia coucionarl aoliti sint;" so the smperor Claudius confined the feea to be allowed not to exceed a oertain auro, which amounted to SOL lit. Id, of our money, "Capiendia fiecuniis poauit modum usque ad dena sestertia, quem egressi repetundarum tenerontur," The Cincian law, says Dr. Taylor, has been well bommented upon by several of the modems, as Rancbinua il.; Var. vii.; Burgiua L; Elect, iviii.; Bud Brummerus. B, Turuebus understands tbe sense of the repartoe to be, that patrons were not to expect thenceforwaM to live upon gifts from their olients, but must buy wliatevor they wished to have. I * He wishes that labour were as eaay as case.
" Excluding him from the number of the knights, to whom a LaCM K^Ten at the public eipenae.
I I • OUAIOGE; OR, called out to him, and inquired nhat reasoa Antistiua could give his Either why hia horse was taken from him, when he was' an excellent, industrious, modest, frugal member of the colouy, rejoined, That I believe not a word of it. Some other Borts of jests are enumerated by the Greeks, as execrations, expressions of admiration, tlireats. But I think that I have divided these matters into too many heads already; for such as lie in the force and meaning of a word, are commonly easy to settle and define; but in general, as I observed before, tliey are heard raUier with approbation than laughter. Jokes, however, which lie in the subject and thought, arc, though iufinite in their varieties, reducible under a very few general heads; for it is by deceiving expectation, by satirising the tempera of othera, by playing humoroualy on oiu- own^ by comparing a thing with soinething worse, by dissembling, by uttering apparent absurdities, and by reproving folly, that laughter is excited; and he who would be a. facetious speaker, must be endowed with a uatural genius for such kinds of wit, as well aa with personal qualifications, BO that his very look may adapt itself to every species of the ridiculous; and the graver and more seiious such a person is, as is the caise with you, Crasaua, so much more humorous do the sayings which iall fi*om him generally appear.
" But now I think that you, AntoniuB, who said^ that yoa would repose during my disconrse, as in some place of refreshment, wiU, as if you had stopped in the Fomptine Marsh, neither a pleasant nor a wholesome region, consider that you have rested long enough, and will proceed to complete the remainder of your journey." " I will," said Antonius, "having been veiy pleasantly entertained by you, and having also acquired instruction, as well as encouragement, to indulge in jesting; for I am no longer afraid lest any one should charge me with levity in that respect, since you have produced such authorities as the Fabricii, the Africani, the Maximi, the Catos, and the Lepidi, in its favour. But you have heard what you desired from lae, at least such points as it was necessary to consider and detail with parreported by those who wished to <!. t^XII.] ON THE CHAItACTER OP THE ORATOR. 309 ticular accuracy; the rest are more easy, and avise wLolly from what hag been already said.
LXXII. ' "For when I have entered upon a cause, and traced out all its bearingB in my mind, as far aa I could possibly do bo; when I bave ascertained and contemplated the proper arguments for tbc case, and those particulars by wbiciithefeelingsof the judges maybe conciliated or excited, I I then, consider what strong or weak points tie cause contains; for hai'dly any subject can be called into question and controversy in pleading, which has not both; hut to what degree is the chief concern. la pleading, my usual method is, to fis oa whatever strong points a cause has, and to illustrato and make the moat of them, dwelling on them, insisting on them, clinging to them; but to hold back from tbc weak and defective points, in sudi a way that I may not appear to ahun them, but that their whole force may be dissembled and overwhelmed^ by the ornament and amplification of the strong parts. If the cause turn upon arguments, I maintain chiefly such as are the strongest, whether they are several or whether there be but one; but if the cause depend on the conciliation or excitement of the feelings of the judges, I apply myself chiefly to that part which is best adapted to move men's minds. Finally, the principal point for consideration on this head is, that if my speech can be made more effective by refuting my adversary, than by supporting my own side of tha question, I employ all my weapons against him; but if my own case can be more easily supported, than that on the other sido can be confuted, I endeavour to withdrawthe attention of the judges from the opposite party's defence, and to fis it on my own. In conclusion, I adopt, on my own responsibility, two courses which appear to me most easy (since I cannot attempt ■what is more difficult): one, that I make, sometimes, no reply at all to a troublesome or difficult ailment or point; {and at Euch forbearance perhaps somebody may reasonably laugh; for who is there that cannot practise it 1 but I am now speaking of my own abUitics, not those of others; and I confess that, if any particular press very hard upon me, I usually retreat ' Antooiua iretuma to tlie point from which lie bad digresaed at ( DE OKATORE j OB, from it, but in BUch a manner as not only not to appear to flee with my aliield tlirown away, bnt even with it thrown o\er my ehoulders; adopting, at the same time, a certain pomp and parade of lougunge, and a mode of flight that resembles fightuig; and keeping upon, my gunrd in auch a way, that I seem to have retired, not to avoid my enemy, but to choose more adyantogeous gronnd.;) the other is one which I think most of all worthy of the orator's precaution and foresight, and which generally oocasiona mo very great ansiety: I am accustomed to study not so much to benefit the causes which I undertake, as not to injure them; not bnt that an orator must aim at both objects; but it is however a much gi-eater disgrace to him to be thought to have damaged a cautie, thau not to have profited it, LXXIII. " But what are you saying among yourselves ou this subject, Catulus? Do you slight what I say, as indeed it deserves to be slighted!" " By no means," rejoined Catulus; " but Ciesar seemed desirous to say something on the point." " Let him say it, then, with alt my heart," continued Antonius, " whether he wish to confute, or to question me."
" Indeed, Antonins," said Ctesar, " I have always been tha man to say of you as an orator, that you appeared to me iu your speeches the most guarded of all men, and that it was your peculiar merit, that nothing was ever spoken by yoa that could injure him for whom you spoke. And I well remember, that, on entering into a convetsation with Craasus here concerning yon, in the hearing of a large company, and Craasus having largely extolled your eloquence, I said, that amongst your other merits this wo^ even the principal, that you not only said all that ought to bo said, but also uever said anything that ought not to be said; and I recollect that be then observed to me, that your other qualities deserved the highest degree of praise, but that to speak what waa not to the purpose, and to injure one's own client, was the conduct of an unprincipled and perfidious peraon; and, consequently, that he did not appear to him to be a good pleader, who avoided doing so, though he who did so was certainly dishonest. Now, if you please, Antonius, I would wish you to show why you think it a matter of such importance, to do no harm to a cause; so much so, that nothing in an orator appears to yon of greater consequence."
I 5 CHABiCTER OF THE OIUTOR.
LXSI V. " I will readily tell you, Ciesar," replied Aiitoniufl, " what 1 mean; but do jou. Bud all who are hero, remamlet this, that I am not speaking of the divine pgwer of the complete orator, but of my own humlile efforts aud practice. The remark of Crassus is indeed that of an excellent and singular genius; to whom it a^eared something like a prodigy, that any orator could poaaibiy be found, who could do any mischief la speaking, and injure him whom he had to defeni For he judges from himself; as his force of intellect is Buch, that he thinks no man speaks what mokes against himself, uuless on purpose; but I am not alluding to any supereminent and illnstrioua power, but to common and almost universal sense.
Amongst the Greeks, Themistocles the Athenian is reported to have possessed an incredible compass of understanding and genius; and a certain person of learning and singular accom-- plishments ia said to have gone to him, and ofiei'ed to teach him the aii of memory, an art then first made public When lie inquired what that art could do for him, the professor replied, that it woidd enable him to remember everything; when Themistocles rejoined, that he would oblige him much more if he could iuatmct him how to forget, rather than to remember, what he chose. Do yon conceive what force and vigour of genius, how powerful and extensive a capacity, there was in that great maul who answered in such a manner that we may understand that notliing, which had once entered his mind, could ever slip out of it; and to whom it was much more desirable to ho enabled to forget what he did not wish to remember, than to remember whatever he had onco heard or seen. But neither on account of this answer of Themistocles are wa to forbear to cultivate our memory; nor is my precaution and timidity in pleading causes to he slighted on account of the excellent understanding of Crassus; for neither the one nor the other of them has given mc any additional ability, but has merely sigoiiied his own. There are numbers of points^ in causes that call for circumspection in every part ' Antoaius mentjons sevao ways ly which tta indiBcration of iie orator may be of prejudice to the caaae, to illuatrBte hia last observation: — 1. By imtatiog awitaeaB, who woold not havB injured his client witliont provocation. 2. By not giving way whon Oia argumenta press too hard upon liim, he may lose but csubb. 3. By eitoUuig tboBe quor lities in lus ulient which ooght to be extenuated, he may do miwhipF. 4. By throwing iniectiTeB npon those who aro entitlpd to the ortcem « « i£ your speech, that jou may cot stumble, that you may not fiill oTer anything. Oftentimes eome witness either does no mischief, or does leaa, if he bo not provoked; my client entreats me, the advocates prew me, to inveigh ogainat him, to abuse him, or, finally, to plague him with questions; I am not moved, I do not comply, I wiE'uot gratily them; yet I gain no commendations; for ignorant people can more easily blame what you say injudiciously, than praise you fur what you discreetly leave unnoticed. In auoh a case how nmch harm may be done if you oHead a witness who is passionate, or one who is a man of sense, or of influential character? for he has the will to do you mischief &Tjm his passion, the power in his understanding, and the means in hia reputation; nor, if Crassus never commits this offence, is that a reason that manyarenotguilty of it, andoften; on which account nothing ever appears to me more ignominious, than when from any observation, or reply, or question, of a pleader, such remarks as this follow: He has ruined — Whomi /lis advenaryt No truly, hvi liinuelf and his client.
LXXV. " This Crassus thicks can never happen but through perfidiouHuess; but I very frequently observe that persons by no means dishonest do mischief in causes. In regard to that particular which I mentioned before, that I ara used to retreat, or, to speak more plainly, to flee from those points which would press hard on my side of the question, how much harm do others do when they neglect this, saunter in the enemy's camp, and dismiss their own guards? Do thev occasion but slight detriment to their causes, when they either strengthen the supports of their adversaries or inflame the wounds which they cannot heal? What harm do they cause when they pay no regard to the characters of those whom they defend? If they do not mitigate by extenuation and favour of the judgea. 5, By upbraidin.^ Uia BivBrsary with the eame dsfents that are itt somo of the j udgea; of -wliich Philip's doriaioa of n dwu'figh evideace, before Lticiua Aurifei, who was still lower in stature, was an inatanoe mentioned before. 6. He may plsad bis own caune rather than that of his client; which blamo Cicero Heoma to have incurred in hia orBtioa for PubliiU! Sextius, a cauao in whisb he was wanuly and specially interested. WhooTer hae any inclination to read thii history of Uuit triaL may find it in Dr. Middietoa'a Life of Cicoro, ToL il p.45,&c. 7. By the use of false or repugnant arguments, or auoh:e foreign to tlio usage of the bar and judicial proceedings. B.
those qualities in them that excite ill-will, but make them more obnoxous to it by commending aud estolliug them, how much mischief ia caused by suoh managementl Or whnt if, ■without any precautionary language, you throw bitter and contumelious invectives upon popular persons, in fevour with the judges, do you not alienate their feelings from you? Or what if there be vioea or bad qualities in one or more of the judges, and yon, in upbraiding your adversaries with such demerits, are not aware that you are attacking the judges, is it a small error which you then commit! Or what if^ while you are speaking for another, you make his cause your own, or, taking aSront, are carried away from the question by pafflion, and start aside from the subject, do you occasion no harm!
In this respect I am estfiemed too patient and forbearing, not because I willingly hear myself abused, but because I am nn-TTilling to lose sight of the cause; as, for instance, when I reproved you youreelf, Sulpicius, for attackiug an agent, not me your adversary.' From such conduct, however, I acquire this advantage, that if any one does abuse me, he ia thought to be either ill-tempered or out of his wits. Or if in your arguments you shall state anything either manifestly felse, or contradictoiy to what you have said or are going to say, or foreign in its natiwe to the practice of trials and of the forum, do you occasioix no damage to your cause? Why need I say mora on this head? My whole care is oonstantiy devoted to this^bject, {for I will repeat it firequently,) to effect, if I con, some good by speaking; but if not, to do at least no harm, LXXVI. " I now return therefore to that point, Catulus, on which you a little while ago accorded me praise; the order aud arrangement of facts and topics of argument. On this bead, two methods may be observed; one, which the nature of causes dictates; the other, which ia suggested by tho orator's judgment and prudence. For, to premise something before we come to the maiu point; then to explain the matter in question; tlicn to support it by strengthening our own arguments, and refuting those on the other side; nest, to ' Quad miniatTatorest pelercs, noa adtertarjum. The mtnisirofor was a witcesf. from wbaso evidence ActoniuB bad dnivra arguments. £llendt. Whether by adfcaiOTivi ja meant AntoDius or not, ie, as HenrichaBQ anye, uncertEun. Ellendt thinks that Antooiufl is nnt meant. I have however differed from him, os tho contest seema indicate that Antonius is meant.
earn up, and came to the peroration; is a mode oFspeakiiig that nature herself presciihes. But to determine how we should arraoige the pai-ticulara that are to be advanced in order to prove, to inform, to persuade, more peouliailj belongs to the orator's discretion. For many arguments occur to him; many, that seem likely to be of service to his pleading; butEome of tliem are so trifling as to be utterly contemptible; Bomo, if they ore of any assiHtanae at all, are Eometimea of snch a nature, that!there ia some defect inherent in them; while that which appears to be advantageous, is not of such import that it need be advanced in conjunction with auythiug prejudicial And as to those arguments which are to the purpose, and deserving of trust, if they are (as it often happei^) very numerous, I thiuk that sueh of them as are of least weight, or as are of the same tendency with others of greater force, ought t« be set aside, and excluded altogether from our pleading. I myself, indeed, in collectiug proo^ make it a practice rather to weigh than to count them.
LXXVII. " Since, too, aa I have often observed, we bring over people in general to our opinions by three methods, by instructing their understandings, conciliating their bens' . volenoe, or exciting their passions, one only of these three methods is to be professed by us, so that we may appear to desire nothing else but to instruct; the other two, like blood throughout the body, ought to be diffused through the whole of our pleading; for both the beginning, and the other carts of 3 speech, on whicli we will by-and-by say a few words, ought to have this power in a great degree, so that they may penetrate the minds of those before whom we plead, in order to excite them. But in those parts of the speech which, though they do not convince by argument, yet by soUcitation and excitement produce great eifect, though their proper place is chiefly in the exordium and the peroration, still, to noake a digression from what you have proposed and are discussing for the sake of exciting the passions, is often advantageous. Since, after the statement of the case has been made, au opportunity often presents itself of making a digi'ession to rouse the feelings of the audience; or this may be properly dona after the confirmation of our own aipnuents, or tlie refutation of those on the other side, or in either place, or in aU, i" cause has sufficient copiousness and importance; and CEABACTEB OP THE OHAT causes are the most considerable, and moat pregiumt with matter for amplifioLtiou and embellishment, which afford the m.ost frequent opportunities for that kind of digression in which you may descant on those points by which the passions of tho.audience are either excited or calmed. ' Iii touching on this matter, I cannot but blame those who place the argunieuts to which they trust least in the front; and, in like manner^ I think that they commit an error, who, if ever they employ several advocates, {a practice which never had my approbtition,) will have him to speak first in whom they confide least, and rank the others also according to their abilities. "^ For a cause requires that the eirpectationa of the audience should be met with all possible expedition; and if nothing to satisfy them be oSered in the commencement, much more labour is necessary in the sequel; for that case is in a bad condition which does not at tho commencement of the pleading at naoo appear to he the better. For this reason, as, in regard to pleaders,^ he who is the most able fihould apeak fii-st, so in regard to a speech, let the ailments of most weight be put foremost; yet so that this rule be obsei'ved with respect to both, that some of superior efficiency be reserved for tho peroration; if any are but of moderate strength, (for to the, weak no place should be given at all,) they may be thrown into the main body and into the midst of the group. All these things being duly considered, it is then my custom to think last of that which is to be spoken first, namely, what exordium I shall adopt. For whenever I have felt inclined to think of that first, nothing occurs to me but what is jejune, or nugatory, or vulgar and ordinary.
LXXVIII. " The beginnings of speeches ought always to be accurate and judicious, well furnished with thoughts, and happy in expression, as well as peculiarly suited to their respective causes. For our earliest acquaintance with a speech as it were, and the first recommendation of it to our notice, is at the commencement; which ought at once to propitiate and attract the audience. In regard to thia point, ' l/i in qiuique eomm Dunimuni puUml em, ila evn primtm tol/unt dUere. " JW lu each of them they think tljat tliere ia least, bo ihey wiah him to epeak EraL" • Ut in oratore. Schutz conjectureB in omtoribm, but he had tatter, u Ellendt obaerreH, baTe conJECtnred ix oral<irib«t. But the text may I cannot bat feel astomsbed, not indeed at EUch as have pwd no attention to the art, but at a man of singular eloquence and eradition, I mean Philippua, who generally rises to speak with so little preparation, that he knows not what 'word he shall utter first; and he says, that when be hi» warmed his arm, then it is bis cuatom to begin to fight; but,he does not consider that tbosofrom whom he takes this simile hurl their first lances gently, so aa to preserve the utmost grace ia their action, and at the same time to husband their strength. JTor is there any doubt, but that the beginning oE a speech ought very seldom to bo vehement and pugnacious; but if even in the combat of gladiators for life, which is decided by the sword, many passes are made previous to the actual encounter, which appear to be intended, not for miacbie^ but for display, how much more iiaturally ia such prelude to be expected in a speech, in which an exhibition of force is not more required than gratification! Besides, there is nothing in the wbole nature of things that is all produced at once, and tliat springs entire into being in an instant; and nature heraeif hna introduced everything that ia done and accomplished most energetically with a moderate beginning. Nor is the esordinm of a speech to be sought from without, or from anything unconnected with the subject, but to be derived from the very essence of the cause.
It iSj therefore, after the wbole cause has been considered and es^mined, and after every argument has been excogitated and prepared, that you must determine what sort of esordinm to adopt; for thus it will easily be settled,^ as it will be drawn from those points which are most fertile in arguments, or in those matters on which I said^ yon ought often to moke digressions. Thus our exordia will give additional weight, when they are drawn from the most intimate parts of our defence; and it will be showa that they are not < " not eommon,'and cannot be transferred to other causes, that they havo wholly grown out of the cause under sideration, LXXIX. " But every eiordinm ought either to convey intimation of the whole matter in hand, or some introduction COI^H .] ON THE CUAR4CIER OP THE OliATOr- 317 and support ki tho cause, or Eomcthing of ornament and dignity. But, like Testibulce and approaches to houssB and temples, so the introductions that we prefix to causes should be suited to the importitnco of the subjects. In small and unimportant' cauaea, therefore, it is often moro advisable to commence with the subject-matter itself without any prefiioe. But, when we are to use an esordium, (as will generally be the case,) oiir matter for it may be derived either from the Guitar, from the adversary, from the subject, or from those before whom we plead. From the suitor (I coll all those BuitoTB whom a suit concerns) we may deduce such particulars OS characterise a worthy, generous, or unfortunate man, or one deserving of compassion; or such pnrticulars aa avail agatuBt a false accusation. From the adversary we may deduce almost the contrary particulars from the i»me points.
From, the subject, if the matter under consideration be cruel, or heinous, or beyond expectation, or undeserved, or pitiable, or savouring of ingratitude or indignity, or unprecedented, or not admitting restitution or satisfiictioa. From those before whom we plead we may draw such conBiderations, as to procure their benevolence and good opinion; an object better attained in the course of pleading than by direct entreaty. This object indeed is to be kept in view throughout the whole oration, and especially in the conclusion; but many esordia, however, aro wholly based upon it; for the Greeks recommend us to make the judge, at the very commencement, attentive and desirous of information; and such hints are useful, but not more proper for the exordium than for other parts; but they are indeed easier'^ to be observed in the beginning, because the audience are then most attentive, when they are in expectation of the whole affair, and they may also, in the commencement, be more easily informed, as the particulars stated in the outset are generally of greater perspicuity than those which are spoken hy way of argument, or refutation, in the body of the pleading. But we shall derive the greatest abundance and variety of matter for exordia, either to concihate or to arouse the judge, from those * It^rtqueniiiut cauii). Ivfrtgtanr caula is a eaaae at the pleading of which few auditors are likel; to atteod. ifi-nesf i • FaciUora rtiam in principtii. Ellendt jnatly obaaryeB tlat eiiiwi. ' ' nipt, and tliat aiiknt should protiablj be substituted foe it.
"1 points in the cause which are adapted to create emo the mind; yet the whole of these ought not to be brought forward in the exordium; the judge should only receive a (" impulse at the outset, so that the rest of our speech oome with full force npon him when he is already imprei in om- favour.
LXXX, " Let the esordium, also, be so connected with sequel of the speech, that it may not appear, like a muaioi&n's prelude, to be somethiug attached merely from imaginsr tion, but a coherent member of the whole body; for some speakers, when they have dehvered their premeditated exordium, make such a transition to what is to follow, that they seem positively unwilling to have an audience. But a prolusion of that kind ought not to be like that of gladiato^' who VffnndiBh spears before the fight, of which they make use in the encounter; but shoold be such, that speakers re even use as weapons tlic thoughts which they advanced the prelude.