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Lastly, the prosecutor pleads, it is unreasonable that he, who does not deny the fact, should escape by a cavil about a word. But the defendant insists upon his explication, as agreeable to the law, and says the fact is misrepresented and blackened by affixing to it a wrong name.
The third state is that of quality, in which the dispute turns upon the justice of an action. And here the defendant does not deny he did the thing he is charged with, but asserts it to be right and equitable, from the circumstances of the case, and the motives which induced him to it.
And first, he sometimes alleges the reason of doing it was in order to prevent some other thing of worse consequence, which would otherwise have happened. We have an instance of this in the life of Epaminondas, who, with two other generals joined in the command with him, marched the Theban army into Peloponnesus against the Lacedæmonians ; but by the influence of a contrary faction at home their commissions were superseded, and other generals sent to command the army. But Epaminondas, being sensible that if he obeyed this order at that time it would be attended with the loss of the whole army, and consequently the ruin of the state, refused to do it; and having persuaded the other generals to do the like, they happily finished the war in which they were engaged ; and upon their return home, Epaminondas taking the whole matter upon himself, on his trial was acquitted. The arguments proper in this case are taken from the justice, usefulness, or necessity of the action. The accuser therefore will plead, that the fact was not just, profitable, nor necessary, considered
either in itself, or comparatively with that for the sake of which it is said to have been done. And he will endeavour to show, that what the defendant assigns for the reason of what he did, might not have happened as he pretends. Besides, he will represent of what ill consequence it must be, if such crimes go unpunished. The defendant, on the other hand, will argue
from the same heads, and endeavour to prove the fact was just, useful, or necessary. And he will further urge, that no just estimate can be made of any action but from the circumstances which attend it; as the design, occasion, and motives for doing it; which he will represent in the most favourable light to his own cause, and endeavour to set them in such a view as to induce others to think they could not but have done the same in the like circumstances.
Again ; the cause of an action is sometimes charged by the defendant upon the party who received the damage, or some other person who either made it necessary, or enjoined him to do it. The first of these was Milo's plea for killing Clodius, because he assaulted him with a design to take away his life. Here the fact is not denied as in the case of Roscius above mentioned, under the conjectural state, but justified from the reason of doing it. For that an assassinator might justly be killed, Cicero shows both from law and reason. The accuser therefore in such a case will, if there be room for it, deny the truth of this allegation. So the friends of Clodius affirmed that Milo was the aggressor, and not Clodius; which Cicero, in his defence of Milo, principally labours to refute.
In the second case the prosecutor will say, no one ought to offend because another has offended first ; which defeats the course of public justice, renders the laws useless, and destroys the authority of the magistrate. The defendant, on the other hand, will endeavour to represent the danger and necessity of the case, which required an immediate remedy, and in that manner; and urges that it was vain and impracticable to wait for redress in the ordinary way, and therefore no ill consequence can arise to the public. Thus Cicero in defending Sextius, who was prosecuted for a riot, in bringing armed men into the forum, shows that his design was only to repel force with force; which was then necessary, there being no other means left for the people to assemble, who were excluded by a mob of the contrary party. Of the third case we have also an example in Cicero, who tells us, that, in making a league between the Romans and Samnites, a certain young nobleman was ordered by the Roman general to hold the swine (designed for a sacrifice;) but the senate afterwards disapproving the ternis, and delivering up their general to the Samnites, it was moved, whether this young man ought not likewise to begiren up. Those who were for it might say, that to allege the command of another is not a sufficient plea for doing an ill action. And this is what the Roman law now expressly declares. But in answer to that it might be replied ; that it was his duty to obey the command of his general, who was answerable for his own orders, and not those who were obliged to execute them; and therefore to give up this young nobleman would be to punish one person for the fault of another. Lastly, a fact is sometimes rather excused than defended, by pleading that it was not done designedly, or with any ill intent. This is called concession, and contains two parts, apology, and entreaty. The former represents the matter as the effect of inadvertency, chance or necessity. Aristotle gives us an example of inadvertency or imprudence in a woman at Athens, who gave a young man a love portion which killed him ; for which she was tried, but acquitted. Though afterwards this was made criminal by the Roman law. The case of Adrastus, as related by Herodotus, is an instance of chance; who being intrusted by Cræsus with the care of his son, as they were hunting, killed him accidentally with a javelin which he threw at a boar. It is necessity, when a person excuses his making a default from stress of weather, sickness, or the like. Thus Cicero pleaded his illness, contracted by the fatigue of a long journey, as an excuse for not appearing in the senate upon the summons of Mark Antony; who threatened to oblige him to it by pulling his house down. But what the defendant here attributes to inadvertency, chance, or necessity, the opposite party will attribute to design, negligence, or some other culpable reason ; and represent it as a matter injurious to the public to introduce such precedents; and also produce instances, if that can be done, were the like excuses have not been admitted. On the other hand, the defendant will insist on his innocence, and show the hardship and severity of judging men's actions rather by the event than from the intention : that such a procedure makes no difference between the innocent and the guilty, but must necessarily involve many honest men in ruin and destruction, discourage all virtuous and generous designs, and turn greatly to the prejudice of human society. He will also consider the instances alleged by the accuser, and show the
difference between them and his own case. And, lastly, he will have recourse to entreaty, or a submissive address to the equity and clemency of the court or party offended, for pardon ; as Cicero has done in his oration to Cæsar, in favour of Ligarius.
These instances are sufficient to show the nature of the arguments suited to judicial discourses, which are deduced from a variety of the general topics.
Of the Character and Address of an Orator. Having in several discourses considered and explained the first part of invention, which furnishes the orator with such arguments as are necessary for the proof of his subject, I am next to show what are the
proper means to conciliate the minds of his hearers, to gain their affection, and to recommend both himself and what he says to their good opinion and esteem. For the parts of invention are commonly thus distinguished ; that the first respects the subject of the discourse, the second the speaker, and the third the hearers. Now the second of these, which is what I am at present to explain, is by Quintilian called a propriety of manners. And in order to express this, it is necessary, as he tells us, that every thing appear easy and natural, and the disposition of the speaker be discovered by his words. We may form an easy conception of this from the conduct of such persons who are most nearly concerned in each other's welfare. As when relations or friends converse together upon any affairs of importance, the temper and disposition of the speaker plainly shows itself by his words and manner of address. And what nature here directs to