Refutation twofold, § 1. Why it is more difficult to defend than to accuse, 2, 3. Deprecation not to be adopted without some ground of defense, 4-6. Nothing to be gained by silence in regard to matters that cannot be defended, 7-11. We may attack some of our adversary's arguments in a body, some singly, 12-14. What arguments may be easily refuted, 15, 16. What arguments of our adversary may be turned to our advantage, 17, 18. Many will fall under conjecture, definition, quality, 19-21. Some of the adversary's arguments may be treated as unworthy of notice, 22. Precedents, which he assumes to be applicable to his case, we must endeavor to prove inapplicable, 23, 24. We may repeat the statements of the adversary so as to weaken them, 25-27. We may sometimes expose the whole charge, sometimes particular parts of it, 28. How we make arguments common to both sides adverse to us; how discrepancies in the pleading of the adversary are to be exposed, 29-33. Some faults easily shown, 34, 35. Not to neglect arguments of our adversary, and not to be too anxious to refute them all, 36, 37. How far we should spare our adversary personally, 38-44. Some pleaders, in endeavoring to expose their adversaries, give occasion against themselves, 45-48. Sometimes, however, we may represent that there are contradictions in his statements, 49, 50. A pleader ought to appear confident of the justice of his cause, 51, 52. Order which we must observe in supporting our own arguments and refuting those of the opposite party, 53-55. We must support our proofs and refutations by the power of eloquence, 56-58. Foolish dispute between Theodorus and Apollodorus, 59, 60. 1. Refutation may be understood in two senses, for the part of the defender consists wholly in refutation, and whatever is said by either party in opposition to the other requires to be refuted. It is properly in the latter sence that the fourth place is assigned to it in judicial pleadings. But the manner of conducting both is similar, for the principles of argument in refutation can be drawn from no other sources than those used in affirmation, nor is the nature of the commonplaces, or thoughts, or words, or figures, at all different. 2. It has, in general, little to do with moving the passions. It is not without reason, however, that it is thought more difficult (as Cicero often testifies) to defend than to accuse. In the first place, accusation is more simple, for a charge may be brought in one way, but may be overthrown in many, and it is sufficient for the accuser, in general, that what he advances appear true, while the defendant has to deny, to justify, to take exceptions, to excuse, to deprecate, to soften, to extenuate, to avert, to affect contempt, to ridicule, and accordingly, on the accuser's side, the pleading is for the most part straightforward and, so to speak, open-mouthed, while on that of the defendant, a thousand turns and artifices are required. 3. The accuser, too, generally sets forth what he has previously meditated at leisure; the defendant has frequently to oppose what is entirely unexpected. The accuser produces his witnesses; the defendant has to refute him by arguments drawn from the cause itself. The accuser finds matter for his speech in the odiousness of the charges, even though they are false as parricide, for instance, or sacrilege, or treachery to the state, which the defendant can only deny. Hence, even moderate speakers have succeeded in accusations, while none but the most eloquent have proved able defenders. To dispatch what I mean in a word, it is as much easier to accuse than to defend as it is to make wounds than to cure them. 4. It is a point of great importance to consider what the opposite party has said, and in what manner. We must first of all examine, therefore, whether that which we have to answer belongs properly to the cause or has been introduced into it extrinsically, for if it be inherent in the cause, we must either deny it, justify it, or prove that the action is illegally brought; besides these, there is scarcely any means of defense in any kind of trial. 5. Deprecation, at least such as is without appearance of defense, is extremely rare and is made only before judges who are confined to no certain form of decision. Even those pleadings before Caius Caesar and the Triumviri on behalf of men of the opposite party, though they depend chiefly on intreaty, also mingle with it some defensive arguments, for it is surely the expression of a bold defender to exclaim, "What object have we had in view, Tubero, but that we might have the power which Caesar now has?" 6. But if on any occasion, in pleading for another before a sovereign prince or any other personage who may condemn or acquit at his pleasure, we have to say that he whose cause we undertake is worthy indeed of death, but of such a character that his life may be spared by a merciful judge, we must consider, first of all, that we shall not have to do with an adversary, but with an arbitrator, and in the next that we shall have to adopt the style of deliberate rather than of judicial oratory, for we shall have to counsel him to prefer the praise of humanity to the pleasure of vengeance 7. As for pleadings before judges who must give sentence according to law, it would be ridiculous to offer precepts in regard to those who confess their guilt. Charges, therefore, which cannot be denied or set aside by taking exceptions on a point of law, must be justified, whatever be their nature, or we must abandon our cause. Of negation I have specified two forms: that the matter in question did not happen, or that what did happen is not the matter in question. What cannot be justified, or set aside on a point of law, must necessarily be denied, not only if a definition of it may prove in our favor, but even if nothing but simple denial is left to us. 8. If witnesses be produced, we may say much against them; if writings, we may descant on the resemblance of hands. Certainly nothing can be worse than confession. When there is no ground either for justification or denial, the last resource for maintaining our cause is legal exception. 9. But, it may be said, there are some charges which can neither be denied nor justified, and to which no legal exception can be taken. A woman is accused, for instance, of adultery, who, after being a widow a year, had a child; here there can be no case for the judge. It is, therefore, most foolishly directed that what cannot be justified should be pretended to be forgotten and passed in silence, for that is the point on which the judge has to pronounce. 10. But if what the accuser alleges be foreign to the cause, or merely accessory to it, I should prefer to say in the defense that it has nothing to do with the question, that it is needless to dwell upon it, and that it is of less importance than our adversary represents it. Or I might, indeed, in such a case, pardon the pretense of forgetfulness to which I just now alluded, for a good advocate ought not to fear a slight censure for negligence if he can thus save his client. 11. We must consider also whether we ought to attack the charges of an accuser in a body, or overthrow them one by one. We may assail a number at once, if they are either so weak that they may be borne down in a mass, or so annoying that it is not expedient to engage them in detail, for we must then struggle with our whole force, and, if I may be allowed the expression, must fight with the enemy front to front. 12. Sometimes, if it be difficult to refute the allegations on the other side, we may compare our arguments with those of our opponents, provided there be a probability of making ours appear the stronger. Such arguments against us as are strong from their number must be separated, as, in the example which I gave a little above, "You were the heir of the deceased; you were poor; you were harassed for a large sum of money by your creditors; you had offended the deceased, and you know that he purposed to alter his will." 13. These arguments, taken together, have much weight, but if you divide them and consider them separately, they will be like a great flame, which had its strength from a large mass of fuel, but which will dwindle away when that which nourished it is withdrawn, or like large rivers, which, if they are divided into rivulets, become fordable in any part. The form of our refutation, therefore, must be adapted to the interest of our cause; we may sometimes state the arguments of our adversary separately and sometimes collect them into a body. 14. For in certain cases, what our opponent has deduced from several particulars, it will be sufficient for us to include in a single proposition. For example, if the accuser shall say that the defendant had many motives for committing the crime with which he charges him, we may, without recapitulating all the alleged motives, deny simply that the argument from the motives ought to be regarded, because it is not to be supposed that every man who had a motive for committing a crime has committed it. 15. Yet it is best for the prosecutor, in general, to group arguments and for the defendant to disperse them. But the defendant must consider in what manner that which has been stated by the prosecutor must be refuted. If it be evidently false, it will be sufficient to deny it, as Cicero, in pleading for Cluentius, denies that he, whom the accuser had affirmed to have fallen down dead on drinking from a cup, died the same day. 16. To refute allegations that are inconsistent, idle, or foolish requires no art, and it is therefore unnecessary to give either precepts or examples concerning them. That also which is said to have been done in secret (they call it the obscure kind of charge) and without witness or proof is sufficiently weak in itself (for it is enough that the adversary cannot attest it), and it is the same with whatever has no reference to the question. 17. It is the business of a pleader, however, at times, to represent the statements of the adversary in such a way that they may either appear contradictory, or foreign to the question, or incredible, or superfluous, or favorable to our side rather than his own. It is a charge against Oppius that he embezzled the provisions intended for the soldiers, a grave accusation; but Cicero shows that it was inconsistent with other charges brought by the same prosecutors, who accused Oppius, at the same time, of attempting to corrupt the soldiers with largesses. 18. The accuser of Cornelius engages to produce witnesses to testify he read the law when tribune; this charge Cicero renders ineffectual by admitting it. Quintus Caecilius solicits the office of prosecuting Verres, because he had been Verres' quaestor, but Cicero made that very circumstance appear in his own favor. 19. As to other charges, the mode of refuting them all is much the same, for they are either to be examined by conjecture, whether they are true; by definition, whether they properly concern the cause; or with regard to their quality, whether they are dishonorable, unjust, scandalous, inhuman, cruel, or deserve any other designation that falls under the head of quality. 20. It is to be considered, indeed, not only with regard to the first charges in an action, but throughout the whole of it, whether it be excessively rigorous, as that of Labienus against Rabirius, under the lex perduellionis; or unfeeling, as that of Tubero against Ligarius, whom he accused when an exile, and exerted himself to the utmost to prevent Caesar from pardoning him; or presumptuous, as that against Oppius when he was accused on a letter of Cotta. 21. In like manner, other actions may be contemplated and shown to be rash, insidious, or vindictive. But the strongest allegation that you can bring against an action is either that it is fraught with danger to the public, as Cicero says in his defense of Tullius, "who has ever laid down such a maxim, or to whom could it be permitted without danger to the whole community, to kill a man because he says that he is apprehensive of being killed by him?" or to the judges themselves, as Cicero, speaking for Oppius, exhorts the judges at some length that "they should not sanction that kind of action against the equestrian order." 22. For some arguments, again, contempt may be at times expressed, as being frivolous or having nothing to do with the question, a course which Cicero frequently adopts, and this affectation of contempt is sometimes carried so far that we trample with disdain, as it were, upon that which we should be unable to refute by regular argument. 23. But since the greater part of such charges is founded upon resemblances, we must, in refuting them, use our utmost efforts to discover some discrepancy in what is stated. This is most easily found in legal questions, for the law to which we refer was assuredly made with reference to other matters than that under consideration, and so much more easily may variation in the different cases be made to appear. As to comparisons drawn from brute animals or inanimate objects, it is easy to elude them. 24. As to examples from historical facts, if they bear hard upon us, they may be met in various ways: if they are ancient, we may treat them as fabulous, and if they cannot be doubted, we may endeavor to show that they are inapplicable to the case, for it is impossible that two cases should be alike in all respects. For instance, if Scipio Nasica, after killing Gracchus, should be defended on the resemblance of his act to that of Ahala, by whom Maelius was killed, it may be said that "Maelius aspired to sovereignty, but that Gracchus only brought forward some popular laws, that Ahala was master of the horse, but Nasica a private individual." If all other means fail us, we must then see whether it can be shown that even the fact adduced as a precedent was not justifiable. What is to be understood with regard to examples is also to be observed with regard to previous judgments. 25. From the remark which I made above, that it is important to notice in what manner the accuser stated his charges, I wish it to be understood, that if he has expressed himself but feebly, his very words may be repeated by ourselves, or if he has used fierce and violent language, we may reproduce his matter in milder terms. 26. As Cicero says in his defense of Cornelius, "He took hold of the tablet of the law," and this we may do with a certain degree of deference to our client, so that if we have to speak on behalf of a man of pleasure, we may observe that a rather free course of life has been imputed to him, and so we call a person "frugal" instead of "niggardly," or "free of speech" instead of "slanderous." 27. We must at any rate take care not to repeat our adversary's charges with their proofs or to amplify any point in them, unless such as we mean to ridicule, as is done in the following passage from Cicero: "You have been with the army," says he, "for so many years you have not set foot in the forum and, when you return after so long an interval of time, do you contend for honors with those who have made the forum as it were their dwelling-place?" 28. In replies, too, the whole accusation may be sometimes repeated, a mode which Cicero adopts in his defense of Scaurus with reference to Bostar, speaking in the character of his antagonist, or if we do not repeat the whole, we may take parts of it, and put them together, as in Cicero's defense of Varenus: "When he was travelling through fields and solitary places with Pompulenus, they met, as they said, the slaves of Ancharius, when Pompulenus was killed, and Varenus immediately after bound and kept in custody till his father should signify what he wished to be done with him." Such a mode may always be adopted when the order of facts stated by the accuser appears improbable and may be deprived of credit by a comment. Sometimes points which prejudice us collectively may be separated, and this is generally the safest method. Sometimes the parts of a reply are naturally independent of each other, of which no example need be given. 29. Common arguments are easily apprehended, not only because they may be used by either party, but because they are of more service to the defendant than to the prosecutor, for I think it no trouble to repeat what I have often intimated: that he who is the first to employ a common argument renders it adverse to him, for that is adverse to him which his opponent can use equally well. "You say it is not probable that Marcus Cotta contemplated so great a crime, and is it credible, then, that Oppius attempted to commit so great a crime?" 30. But it is the part of a skilful pleader to discover in the case of his adversary particulars that are at variance with one another or that may be made to appear at variance, and such contradictions are sometimes evident on the very face of a statement, as those noticed by Cicero on the trial of Caelius: "Clodia says that she lent Caelius money, which is a sign of great friendship on her part, yet alleges that poison was prepared for her by Caelius, which is a sign of the most violent hatred on his." 31. So, in his speech for Ligarius, "Tubero," says he, "makes it a crime in Ligarius that he was in Africa, and yet complains that he himself was not admitted into Africa by Ligarius." Sometimes an inadvertent remark of our opponent affords us an opportunity of exposing his statements, an opportunity given chiefly by those who are fond of fine thoughts, and who, enticed by some opening for their eloquence, do not sufficiently regard what they assert, fixing their attention on the passage before them, and not on the whole scope of the cause. 32. What could appear more prejudicial to Cluentius than the mark of infamy set on him by the censors? What could have seemed more to his disadvantage than that the son of Egnatius had been disinherited by his father for the very crime of corrupt judgment by which Cluentius had procured the condemnation of Oppianicus? 33. But Cicero shows that these two facts contradict one another:
34. As to some faults, there is far more folly in committing them than acuteness in noting them. I mean such as advancing a disputable for an indisputable argument, a controverted for an acknowledged fact, a point common to many causes, for one peculiar to the cause in hand, or introducing anything vulgar, superfluous, too late for the purpose, or incredible. For it is incident to incautious speakers to aggravate a charge when it is still to be proved; to dispute about an act when the question is about the agent; to attempt what is impossible; to break off a discussion as finished when it is scarcely commenced; to prefer speaking of the party instead of the cause; to attribute to things the faults of persons, as, for example, accusing the decemviral power instead of Appius; to contradict what is evident; to say what may be taken in another sense from that which they intend; to lose sight of the main point of the cause; and to reply to something that is not asserted. 35. This mode of reply, indeed, may be adopted as an artifice in some cases, as when a bad cause requires to be supported by foreign aid; thus, when Verres was accused of extortion, he was defended for having bravely and actively defended Sicily against pirates. 36. The same rules may be given with regard to objections that we may have to encounter, but they require the more attention in this case, as many speakers fall into two opposite errors as to objections. Some, even in the forum, neglect them as matters troublesome and disagreeable, and being content, for the most part, with what they have premeditated, they speak as if they had no opponent, an error which is still more common in the schools, in which not only are objections disregarded, but the declamations themselves are in general so framed that nothing can be said on the opposite side. 37. Others, erring from too great caution, think that they must reply, if not to every word, at least to every thought or even the lightest insinuation of their adversary, a task which is endless and superfluous, for then it is the cause that is refuted and not the pleader. For my own part, I shall consider a speaker eloquent only when he speaks in such a way that whatever he says to benefit his party, the credit of it may seem to be due to his talent and not to his cause, and, if he says anything to injure his party, the blame of it may seem attributable to his cause and not to his talent. 38. Invectives—such as that against Rullus for the obscurity of his language, against Piso for his foolishness of speech, or against Antony for his ignorance of things and words, as well for his stolidity—are allowed to passion or just resentment, and are effective in exciting dislike towards those whom the speaker may wish to render hateful. 39. The mode of reply adopted towards advocates should be different, though at times not only their mode of speech, but even their character, their look, their walk, or their air are excusably attacked. For example, Cicero, in speaking against Quintius, assails not only such personal peculiarities, but even his purple-bordered toga descending to his heels, for Quintius had pressed hard upon Cluentius by his turbulent harangues. 40. Sometimes, for the purpose of effacing an unpleasant impression, what is said severely by one party is eluded with a jest by the other. In this way Triarius was mocked by Cicero, for when he had observed that the pillars of the house of Scaurus were conveyed through the city on wagons, Cicero retorted, "And I, who have pillars from the Alban mount, had them brought in panniers." Such ridicule is more freely allowed against an accuser, whom a defender sometimes assails with severity out of concern for his client. 41. But what is allowed against all pleaders, without any violation of good manners, is complaint, if they can be said to have craftily passed in silence, or abbreviated, or obscured, or put off any point. 42. A change in the direction of the defense, too, is often a subject of blame, a point on which Accius objects in pleading against Cluentius; Aeschines in his speech against Ctesiphon; Accius complaining that Cicero would adhere only to the letter of the law; and Aeschines that Demosthenes would say nothing on the subject of the law. But our declaimers should be especially admonished not to offer such objections as may be easily answered, or imagine that their opponent is an absolute fool. But as fertile commonplaces, and thoughts that may please the multitude, occur to us, we make for ourselves matter for our speeches, molding it to our fancy, so that this verse may be not disadvantageously borne in mind: Non male respondit; male enim prior ille rogârat. 43. Such a practice will be fatal to us in the forum, where we shall have to reply to our adversary and not to ourselves. It is said that Accius, being asked why he did not plead causes when he displayed in his tragedies such power in making able replies, gave this reason, "that on the stage he made his characters say what he wished, but that in the forum his adversaries would say what he did not wish." 44. It is therefore ridiculous in exercises which are preparation for the forum to consider what reply may be made before we consider what objections may be offered, and a good teacher ought to commend a pupil when he ably imagines anything favorable to the opposite side as much as when he conceives anything serviceable to his own. 45. There is another practice with regard to objections that seems to be always permissible in the schools, but ought rarely to be allowed in the forum. For when we have to speak first on the side of the prosecutor, in a real cause, how can we make replies to objections when our opponent has not yet spoken? 46. Many speakers, however, fall into this absurdity, whether from a habit contracted in the schools, or from fondness for speaking, and they afford amusement and sport to those who answer them, who sometimes jestingly remark that they said nothing and could have said nothing so foolish, or sometimes, that they have been well reminded by their opponent and thank him for his assistance. But most frequently, it is, indeed, a very strong argument in their favor, that their opponent would never have replied to objections that had not been made, unless he knew that such objections were well founded and had been impelled to acknowledge their justice by the voice of conscience. 47. Thus Cicero, in his speech for Cluentius says,
48. But some, not content with answering imaginary objections, amplify whole portions of them, saying that they knew the opposite party would say so and so and support their assertions with such and such arguments. This practice Vibins Crisptus, a man of pleasing and refined humor, very happily ridiculed when I was at the bar: "I," said he, in reply to an opponent of that sort, "do not make those objections, for to what purpose is it that they should be twice made?" 49. Sometimes, however, something like an answer to an objection may be made, if anything be comprised in the depositions on the part of the adversary be discussed in a private consultation of advocates, for we shall then reply to something said by the opposite party and not to anything imagined by ourselves, or if the cause be of such a nature that we can state certain objections besides which no others can be offered. For example, when stolen goods are found in a house, he who is accused of having stolen them must, if he deny the charge, necessarily say either that they were brought there without his knowledge, or deposited with him, or given to him, to all of which allegations we may reply, even though they have not been advanced. 50. In the schools, too, we may very properly obviate objections, so as to exercise ourselves for speaking in both places, the first and the second, on the side of the prosecutor. Unless we do so, we shall never acquire practice in combating objections, as we have no adversary to whom we are called upon to reply. 51. It is also a fault in a pleader to be too anxious and to labor at removing everything that stands in his way; for such solicitude excites distrust in the judge, and very frequently arguments, which, if stated off hand, would have removed all doubt, but which are tardily advanced through excessive precaution, lose credit because the advocate himself seems to think something additional is necessary to support what he alleges. An orator, therefore, should carry confidence in his manner and speak as if he had the highest assurance of the success of his cause, 52. This quality, like all others, is eminently apparent in Cicero, for his extraordinary affectation of security is like security itself, and there is such authority in his language as supplies the place of proof, so that we do not venture to doubt his statements. But he who can perceive what is the strongest point in his adversary's case and his own will easily judge what arguments he will have to oppose or to urge. 53. As to order, there is no part of a cause in which it will give us less trouble; for, if we are the prosecutors, we have first to support our own allegations, and then to refute what is brought against them; if we are defendants, we have to commence with refutation. 54. But from what we advance against any objection there arise other objections, and sometimes to a great extent; as the hands of gladiators, which are called the second, become the third, if the first was intended to provoke the assault of the adversary, and the fourth, if the challenge be repeated, so as to make it necessary to stand on guard twice and to attack twice; and this process may lead still further. 55. Refutation includes also that simple kind of proof of which I have given an example above, proceeding from the feelings and consisting in mere affirmation, such as that of Scaurus, of which I have already spoken; and I know not whether such sort of proof may not even be used more frequently when a denial is made. But the chief object of each party must be to see where the main point lies, for it too frequently happens in a cause that many points are disputed, while judgment is to be passed on few. 56. In these particulars consists the art of proving and refuting, but it requires to be supported and embellished by the powers of the speaker, for however well adapted our arguments may be to establish our case, they will nevertheless be weak unless they are urged with extraordinary vigor by him who uses them. 57. Those commonplace observations, accordingly, concerning witnesses, written evidence, arguments, and other matters of the kind, produce great impression on the minds of the judges, as well as those peculiarly arising from the cause, in which we praise or blame any action, show that it is just or unjust, or make it appear greater or less, worse or better, than it really is. Of these, some are useful in the comparison of one argument with another, others in the comparison of several, others in influencing the decision of a whole cause. 58. Some, too, serve to prepare the mind of the judge, others to confirm it in the opinions which he has already formed; and such preparation or confirmation has reference sometimes to particular heads and may be offered as may be suitable for each. 59. I wonder, therefore, that it should have been disputed, and with no small acrimony, between two leaders of opposite sects as it were, whether arguments from moral considerations should accompany each particular head, as Theodorus would have it, or whether the judge should be informed before his feelings are excited, as Apollodorus directs, as if no middle course could be pursued and as if nothing could be ordered to suit the interests of the cause. But it is men who do not speak in the forum themselves that give these directions, and the systems of rules which they have composed at leisure and at ease are disturbed by the necessary confusion of battle. 60. For almost all authors who have set forth methods of speaking, as a kind of mysteries, have bound us not only to certain subjects for our arguments, but by fixed laws as to the form of expressing them. But having offered these few remarks on this head, I shall not shrink from communicating what I myself think about it, that is, what I observe to have been the practice of the most eminent orators.
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