Cicero in Theory and Practice: The Securing of Good Will in the Exordia of Five Forensic Speeches
L. Clarke has written, "In his early speeches Cicero followed more or less the prescriptions of the textbooks, but as he grew older and more experienced and became more
closely concerned with politics, he emancipated himself from them, and the speeches of his maturity are far away from the models of the schools."' WhUe I agree that Clarke is correct in observing a substantial difference between the early and the late Cicero, I am not convinced that this represents a shift away from the prescriptions of the textbooks. The problem is to determine how well the theory developed by Cicero in his De inventione, De oratore, and Orator—and reflected as well in the Rhetorica ad Herennium and QuintUian's Instituto Oratoria—corresponded to the actual forensic speeches of the period. This question of correspondence has too long been ignored by scholars both in the field of speech and of classical studies.
This paper explores the relationship between theory and prac-
'M. L. Clarke, Rhetoric at Rome: A Historical Survey, (London: Cohen and West, 1953), p. 66. Perhaps Cicero's comment that the De inventione was an immature and sterile work has produced a prejudice against its importance and has led to the general perception that Cicero abandoned prescriptive rules in his oratory and in his more mature theoretical works.
tice in Cicero's forensic speaking, specifically one of the most important functions of the exordium, securing the good will of the audience. The question is whether there is any correspondence between the prescriptive rules of the textbooks about how the speaker should secure good wiU, and how Cicero accomplished this in his forensic speeches.
To accomplish this purpose, this study is divided into three sections. The first synthesizes the material available from the textbooks of the period. The second reports the results of an examination of five forensic speeches of Cicero in the second. The five speeches are the Pro Roscio Amerino (80 B.C.), the Pro Cluentio (66 B.C.), the Pro Murena (63 B.C.), the Pro Caelio (56 B.C.) and the Pro Milone (52 B.C.). These speeches were selected because they cover most of Cicero's active speaking career, and because they were all cases which excited a great deal of public interest; thus we could expect to see Cicero at his best. The final section presents some conclusions based on the analysis of the speeches in light of the theory.
T H E R O M A N THEORY OF THE EXORDIUM
According to Cicero, before a patronus can know how best to secure the good wUl of the judges, he first must determine what their perception of the case was. Fortunately, early Roman rhetorical theory specified a finite number of cases: hottestum, admirabile, humile, anceps, and obscurum.- If the patronus believed that his audience was predisposed toward his client's innocence, he would be dealing with an honorable (honestum) case, and he could therefore be direct in his opening remarks.^ He could also be direct in some obscure (obscurum) cases in which either the judges were somewhat dull-witted or the substance of the case was very complicated. He could also directly go to the doubtful point in the ambiguous (att-ceps) case.
In cases in which the audience was hostUe to the cUent (admirabile), or in which the audience thought the case unworthy of serious attention (humile), Cicero advised the attorney to use the less
•Cicero, De inventione, i, 20. The author of the Rhetorica ad Herennium dropped the genus anceps from his list.
'The technical term for this type of opening is principium.
Cicero in Theory and Practice 95
direct method of opening (insinuatio). For example, if the case had created some kind of scandal, the speaker would do well to move away from offense to something more approved or to shift away from the prejudice of the jury to something which it looks on positively. LUcewise, if the defense counsel has noticed that the jury has been attentive to and apparendy convinced by the speeches of the prosecution, he should, according to the theory, either begin with the strongest charge, or the most recent charge, or express doubts as to where to begin.
Once the orator has ascertained the type of case and the type of introduction to use (principium or insinuatio), he would then begin looking for specific sources of securing the good wUl of the audience. Cicero identified four loci from which appeals to good will could be made: ab nostra, ab inimicorum persona, ab iudicum persona, a causa."
Although Cicero began with proofs from nostra persona, clearly he did not include the character of the advocate in that category, at least not in the De inventione.^ Rather he discussed generating appeals by referring without arrogance to the acts and services of the cUent, by weakening the charges against the client, by amplifying his misfortune, or by using prayers on his behalf.
In the Orator, though, Cicero showed an awareness of the necessity of the advocate's making a good impression on the jury. There he wrote that "there are, for instance, two appeals which, if well-handled by the orator, arouse admiration for his eloquence. One, which the Greeks call T/^IKO? or 'expressive character,' is related to men's nature and character, their habits and all their intercourse of life . . . rfdiKOs is above all courteous and agreeable, adapted to win goodwill."* Such a concern on the part of the orator for his own character necessarUy led to some practical advice for establishing his character during the speech, especially during the introduction. The orator should, therefore, say that he undertook
'Cicero, De inv., i, 22; ad Her., i, 8; Quintilian, Institutio Oratoria, iv, 1, 6. 'George Kennedy, "The Rhetoric of Advocacy in Greece and Rome," American
Journal of Philology, 89 (1968), p. 433. Kennedy argued that, at this point in Cicero's career, because of the influence of Greek rhetorical theory and Greek court procedures, which seldom include an "attorney", Roman rhetoricians had not yet developed a treatment of the advocate as a contributor to the success or failure of the case. In fact, I think that a good case can be made for Quintilian as the first to really develop this issue.
'Cicero, Orator, 128.
96 RHETORICA
the case because of friendship, because of hatred of his opponent, because of its importance for the state, or because his client is a victim of injustice and in need of friends.^
The advocate could also generate ample reasons for the judges looking favorably on his own client by destroying the credibility of his opponents (ab inimicorum persona). He might, for example, attempt to bring them into hatred by demonstrating that their deeds are base, proud, cruel, or malicious. In addition, he could discuss their arrogant use of power, political influence, wealth, and family connections, and thus show them to be unpopular. FinaUy, they can be made contemptible by revealing their laziness, carelessness, zealous desires, and luxurious idleness.
To use the jurors as a source of winning good wiU, the speaker ought to give an account of their wise, merciful, and courageous acts, and also show how eagerly their judgment is anticipated. This must be done, though, without excessive flattery. Finally, good wUl can be derived from the circumstances if we praise our own case and depreciate the one of our opponents. '
Cicero generally followed this theory in his later De oratore, though there was one important change in his thinking which was not present in the De inventione. Cicero added that the introduction should not be drawn from something outside the case, but rather from its very "guts" (ex ipsis visceribus). Therefore, he wrote, "after the whole case has been thoroughly examined and analyzed, and after its topics have been discovered and developed, we must consider what type of introduction we will use." ' From this viewpoint, the introduction is something which naturally grows out of the speech, and consequently will prepare the audience to listen as well as get their attention. The primary artistic purpose for the orator, then, is to devise appeals which will secure the audience's good will.
Thus there are three conclusions we can draw about the theory of the exordium which wUl shed light upon any analysis of the
^Ad Her., Hi, 34; Inst. Or., iv, 1, 7; Aristotle, Rhetorica ad Alexandrum, 1442b, 12-16.
'Cicero is so brief on this last point that it is almost impossible to tell what he means. 1 have taken it to mean the external circumstances surrounding the trial. 1 am supported in this opinion by one of the most influential and learned scholars of Cicero, Quintilian. He saw Cicero's description of the scene at the court in the Pro Milone as an appeal a causa.
'Cicero, De oratore, ii, 78, 318.
Cicero in Theory and Practice 97
speeches. First, before any real determination of Cicero's strategy can be made, we must understand the circumstances of the case. This wUl signal how Cicero will approach the introduction and what kinds of issues he may develop. Next, whUe we can look at appeals to the jury and to the facts of the case as sources of securing good will, we also need to recognize that, theoretically, Cicero viewed appeals derived from the character of the client and of the opponents as most influential. Finally, we should observe to what extent Cicero used himself and his own character in setting up the main parts of his introduction. It is to these questions that we now turn our attention in the five forensic speeches which he delivered over a period of nearly thirty years.
PRO ROSCIO AMERINO (80 B.C.)
Cicero's first causa publica was, of course, the Pro Roscio Amerino. The case was an important one because it helped to establish Cicero, then 26 years of age, as one of Rome's leading advocates. But from a strategic standpoint, the case presented several difficulties. The major difficulty involved the public sentiment aroused by the recent events. In the few years prior to the trial, Sulla had won successive victories over Mithridates, Carbo, and Marius. With the passage of the lex Valeria, Sulla received "full powers from the hands of the people to reorganize the constitution as dictator.'"" One of the first moves under the new law was to eliminate his opposition through the use of proscriptions. Nicol described the situation in the following way: "Heedless and callous of life, culpably indulgent to his own favorites and partisans, (Sulla) made no attempt to check or control the carnival of murder. . . Men grew accustomed to the daily sight of the forced sales of confiscated property, over which Sulla himself sometimes deigned to preside."" Though the estimates differ, at least forty senators and sixteen hundred equites were indiscriminately murdered before the Usts were closed in the summer of 81 B.C.'^
When Roscius was tried for the murder of his father, only
'"H. H. ScuUard, From the Gracchi to Nero, (London: Methuen, 1959), pp. 76-81. "J. Nicol, M. Tulli Ciceronis pro Sexto Roscio Amerino oratio, (Cambridge: The Uni
versity Press, 1906), pp. x-xi. '^Scullard, From the Cracchi to Nero, p. 81.
98 RHETORICA
Cicero rose to his defense. Scholars differ about his motives for undertaking the case. Kennedy has argued that Cicero knew that his client would be acquitted because the case was so well-known that any jury tampering would be immediately recognized and that the influence of Chrysogonus had already been minimized." Donkin and Freese beUeve just the opposite. Donkin wrote that "the trial would be the first held for a murder after a long interruption of all judicial business, so that the strictest procedure could be expected from the jury, the voice of justice having been sUent so long."" Freese concurred in this opinion and added that "public opinion was in favor of the first condemnation of the first person accused of such a crime . ."'=̂ Indeed, the speech itself bears out such a conclusion. The prosecution was so sure of conviction that its representative, Erucius, had used an exordium gotten up for another case. (82) It would appear, then, that when Cicero rose to speak, the judges were somewhat hostile to his client. Reacting to the merciless bloodletting of the proscriptions and aware of, if not intimidated by, the power of Sulla via Chrysogonus, they were ready to sew Sextus Roscius up in a sack.
Cicero immediately began to work at winning their good wUl. In this speech, he was especially careful to touch aU the bases. He characterized his client (ab nostra persona) in a brilliant antithesis as one who was ruined, who was sorrowful at the loss of his father, who was even now in danger of his own life (13). He also mentioned the iniquitous times and crimes which prevented him from speaking as appropriately and as freely as he could, an appeal to the case (a causa—1 & 9). By far, however, his most successful attempts to secure the good will of his audience came from the opponents, the jury, and himself.
Cicero used his own character extensively in this speech, both to secure the good will of the audience and to dupe the prosecution. His opening words, in fact, were an explanation of why he, so young, inexperienced, and lacking authority, should have undertaken this case. He acknowledged the problems of the situation and the consequences resulting from men of great authority speak-
"George Kennedy, The Art of Rhetoric in the Roman World, (Princeton, New Jersey: Princeton University Press, 1972), p. 152.
'*E. H. Donkin, M. Tulli Ciceronis pro Sexto Roscio Amerino oratio ad iudices, (London: Macmillan and Company, 1901), p. xvii.
''Cicero, Pro Sexto Roscio Amerino, trans, by John Henry Freese, (London; William Heinemann LTD, 1930), p. 112.
Cicero in Theory and Practice 99
ing on such an issue, and then he fell back on the topoi for introductions. He had, we discover, been pressed into service by his friends and under such circumstances could not refuse."* Later on, Cicero said that he had accepted the case neque ut satis firmo praesidio defen-sus Sextus Roscius, verum uti ne omnino desertus esset (84). Finally, toward the end of his introduction, Cicero acknowledged that he was duty-bound to defend Roscius, and that regardless of the weight of that burden, he would continue to bear it (10).
The character of the jury, particularly of the presiding officer, Marcus Fannius, did not escape his attention. He reminded the jurors that they had been elected to the senate because of their worth (dignitas), and that they had been appointed to court by the senate because of their strict sense of justice (severitas) (8). He also reminded them that he was relying on their fides et sapientia to lighten the burden caused by his own sense of duty (10). Then, turning to Marcus Fannius, Cicero alluded to a previous manly deed which he had performed in a similar case (11). Finally, having turned to the jury once more, he pleaded with them to summon all of their courage to resist the villany and audacity of the prosecution so that the murders which had taken place in the Senate would not stain the Forum (12).
Cicero's most brilliant attempts to conciliate the audience, however, were reserved for his characterizations of the prosecution. He described them as having covered up the real reason for the trial (5). He vividly portrayed the extensive abuse of power in securing the estate of the elder Sextus Roscius. The court resounded with Cicero's words that Chrysogonus hoped "to squander and consume in luxurious living that which he had obtained through his wicked deed (6)." A litfle later we are led to believe that Chrysogonus thought that the courts should help in disposing of the young Sextus (8). Finally, in the antithesis mentioned above, the accusers are shown to have illegally seized the property of Cicero's client, to have made attempts on Roscius' life, and to be in fact the ones who should be on trial (13).
The language which Cicero used reinforced this picture. Chrysogonus possessed potentia, an unconstitutional power, and what
^''Pro Roscio Amerino, 4. It was quite a company of friends who had encouraged him, including members of the Metelli and perhaps even Pompey himself. A. M. Ward, "The Early Relationship between Cicero and Pompey until 80 B.C.," Phoanix, 24 (1970), pp. 119-129.
100 RHETORICA
was worse, he was still adulescens, not yet a man. His friends were sicarios et gladiatores, and he was connected with sanguinem, au-daciam, and calamitatem. He forcibly seized (invaserit) the estate of the RoscU, and as a result of his ill-gotten inheritance he was able to live a Ufe of extravagance (luxuries). Cicero, then, in this speech, clearly was able to demonstrate the arrogant abuse of power and its consequences, and so concluded his attempt to secure the good wiU of the audience.
PRO CLUENTIO (66 B . C )
The Pro Cluentio provides an altogether different look at Ciceronian exordia. The immediate charge in the case was that Cluentius had poisoned his step-father, Oppianicus.^The immediate charge, however, grew out of an eight-year-old feud between Cluentius, his mother Sassia, and Oppianicus. Eight years before this trial, Cluentius had successfully prosecuted Oppianicus on the charge of poisoning him. Because "the bribery at the trial was scandalous and did much to bring the senatorial juries into disrepute,"" that trial had attracted a great deal of public notoriety. In the present trial, Cicero attempted to show that Oppianicus had committed the bribery, but Peterson has shown convincingly that Cluentius had most likely out-bribed Oppianicus, thus securing his conviction.''
Because of the previous trial, the court and the people were hostile toward Cluentius. This was most unfortunate, because, in light of the best evidence, Cluentius was probably innocent of the charge. Three years before the case came into court, Oppianicus had faUen from his horse, and, since he was a sickly man at the time, had died from his injuries. Sassia, his wife, hoped to get even with Cluentius and immediately put some of Oppianicus' slaves to the torture before witnesses to secure a confession of Cluentius' guilt. She was unable to do so until three years later she caught one of her slaves stealing. After some plea bargaining with the slave to
''See G. S. Hoenigswald, "The Murder Charges in Cicero's Pro Cluentio," Transactions and Proceedings of the American Philological Association, 93 (1962), pp. 109-123 for a discussion of the murder charges. Hoenigswald concluded that Cluentius was indeed guilty of murde.'ing Oppianicus, a conclusion 1 find unsupported by the facts, even though he made a good case.
"ScuUard, From the Gracchi to Nero, p. 94. "W. Peterson, M. Tulli Ciceronis pro A. Cluentio oratio, (London; Macmillan and
Company, 1898), Introduction.
Cicero in Theory and Practice 101
get some evidence against Cluentius, she cajoled the younger Oppianicus into prosecuting her son.
In the exordium of the Pro Cluentio, we see Cicero beginning to manipulate the rules to fit his specific needs. He made no reference to Cluentius in the introduction and only a token reference to the prosecution. Likewise, he said very little about himself in the opening except to say that he was confused as to where to begin (4). Most of the time, he dealth with the prejudice surrounding the case, and with the judges, in trying to secure good will.
At the very beginning of the speech, Cicero observed that the prosecution had divided the case into two parts, prejudice and charges, a division which he would also follow. After four brief references to the charges, however, Cicero turned his attention exclusively to the prejudice surrounding the case (a causa). He referred to the case as suited more to the disorderly rabble of a public meeting than to the calm deliberation of the Roman court (2). He also recognized that even though public opinion had been against his cUent for eight years, he was wUling to defend Cluentius (7).
If the jury was to decide prudently in this case, Cicero argued, they would have to be able to rise above the common prejudice. Thus Cicero began his appeal to the good will based on the jurors themselves (ab iudicum persona). He appealed directly to their good will, and he praised them for their abiUty to help men withstand the tide of prejudice; at the same time he Unked their decision with the welfare of the state (3). He reminded them of the past deeds of the court and exhorted them to hold to that ancient characteristic of a fair trial, to punish guilt though no prejudice is found, and to put aside prejudice when there is no guilt (5). Finally, in a very eloquent passage, Cicero hoped that "your court and bench, which the prosecution thought would be horrible and dreadful to Cluentius, will be a great port and haven for this storm-tossed person of bad luck (7)." So Cicero spent most of his time in the introduction trying to overcome the prejudice against his client first by acknowledging that such prejudice existed, and then by appealing to the past record of the courts and the talent of the present jury.
PRO MURENA (63 B.C.)
The introduction to the speech on behalf of Lucius Licinius Murena seems at first glance to be something of an anomaly in the corpus of Ciceronian forensic speeches. In his attempt to secure the
102 RHETORICA
good will of the judges, Cicero completely ignored the character of the judges and the case. He barely touched on the character of the prosecution, and his only appeal ab nostra persona was a prayer for Murena. When he prayed, however, he used language which recalled the pristine virtues of old Roman society.'" It was a prayer calculated to remind the judges of the past deeds of Rome and thus secure their good will. Indeed, Cicero was apparenfly so remiss in using the standard sources of securing good will that he dealt with the case itself in only the first two of the ten paragraphs of the introduction. The rest of the time he devoted to talking about himself. Before looking at the remainder of the introduction, we must first determine what led up to the case and what was happening during the trial.
In 63 B.C., four men sought the consulate: L. Licinius Murena, Servius Sulpicius Rufus, Decimus Junius Brutus, and Lucius Ser-gius Catilina. Cicero, in an attempt to prevent a Catilinarian victory through bribery, pushed through the senate the lex Tullia de ambitu. Upon its passage, Cato proclaimed that he would prosecute whoever won, since bribery was common practice. When Brutus and Murena were elected, Cato joined with Sulpicius in the prosecution of Murena, though Brutus, Cato's brother-in-law, escaped prosecution.
Meanwhile Catiline, frustrated in his attempt to secure power constitutionally, resumed his efforts to seize power with his army. Prior to the Pro Murena, Cicero had delivered the first two speeches against Catiline and had encouraged his departure. While this trial was taking place, CatiUne had joined himself to Manlius' army at Faesulae, and Antonius, Cicero's colleague, had taken the field against him. Catiline, then, had openly shown himself to be an enemy of the state. The real issue then as Cicero understood it was not judicial (the guilt or innocence of Murena), but rather political. For while there could be little doubt about the guilt of Murena, to condemn him, a consul elect, at a time when the state was in jeopardy was more dangerous than to acquit a guUty man.'' Because of the overriding importance of the political issue, Cicero probably viewed the case as honestum, and therefore did not think
'•"Pro Murena, 1. The specific phrases are inihi fidei magistratuique meo, bene atque feliciter eveniret, and ob eiusdem hominis consulatum una cum salute obtinendum. Freese has identified these as passages from archaic Latin formulae: J. H. Freese, M. Tulli Ciceronis pro L. Murena oratio ad iudices, (London; Macmillan and Co., 1898).
-'Freese, M. Tulli Ciceronis pro L. Murena oratio ad iudices, pp. xx-xxi.
Cicero in Theory and Practice 103
it necessary to dwell at length on appeals to an audience already favorably disposed toward his position.
There is one more element in the situation which helps to explain the nature of this introduction. Both of the major prosecutors in the case had probably begun their speeches with an attack on Cicero.'' Sulpicius impugned Cicero's character by arguing that Cicero had betrayed their friendship when he accepted the defense of Murena. Cato continued the attack when he argued that Cicero had abused his power as consul by defending a client against an accusation brought under the lex Tullia de ambitu. The hope of the prosecution was to destroy whatever antecedent ethos Cicero might have brought to the trial not only as Rome's first orator, but now as Rome's first citizen.'^
Cicero recognized the centrality of his own character, and very early in the introduction he moved to deal with the attacks on it. He said at the end of the second paragraph, "Before 1 begin to speak about Murena, I will say a few things in my own defense, not because my defense is more important at this time than the defense of Murena, but so that when my action is approved by you, I may be able to repel the attack of his enemies on his honor, fame, and all his fortunes with great authority (2)." In his response to Cato Cicero used two logical topoi and one commonplace drawn from the res publica to refute the claim that he had abused his office.'* Cicero then dealt with Sulpicius in summary fashion by arguing that Sulpicius too had given advice to opponents of his friends, and that he, Cicero, had an obligation of friendship to Murena as well (8-10). By linking his own character with the preservation of the state, Cicero thus relied both on the instability of the political situation and on his own influence as consul to secure acquittal for
^D. M. Ayers, "Cato's Speech Against Murena," Classical journal, 49 (1953-1954), pp. 245-253; R. W. Husband, "The Prosecution of Murena," Classical Journal, 12(1917), pp. 102-118.
"Inst. Or., iv, 1, 7. Quintilian has here written about antecedent ethos, and he was, as far as 1 can determine now, the first to discuss it. He observed that while the attorney may not be able to say much about himself, "yet, if he is believed to be a good man, this consideration will exercise the strongest influence at every point of the case."
"The two topoi are a similitudine (3) where Cicero compared this case to a suit in a contractual dispute and a consequentibus (4) where he discussed the consequences of the state appointing an attorney. Cicero then argued in the commonplace drawn from the republic, that "if this be so, duty should not so much call me to defend the fortunes of a friend as the state ought to call a consul to defend the common safety." (5)
104 RHETORICA
his client. His appeals to the good will of the audience, as a result, were based almost exclusively on his own character.
PRO CAELIO (56 B . C )
The Pro Caelio, whUe perhaps not significant politically, was nonetheless a cause celebre and attracted great public attention. Austin has examined the charges lodged agamst Caelius, but his explanation of them is somewhat unsatisfactory.'= His analysis, following Cicero's handling of the case, suggested that Clodia was the principal in the case, and that the case was initiated at her request. But, as Dorey has suggested, the real action surrounded Caelius' second action against Bestia, and that Clodia's part was only subsidiary. Using this analysis, we can understand better why the prosecution brought the last three charges: de bonis Pallae, de Dione, and de veneno in Clodia parato. The prosecution hoped to discredit Caelius personally, socially, and politically so that his second action against Bestia would not succeed.'" Of course, if the prosecution was to succeed, the testimony of Clodia had to have been perceived as credible.
Cicero attempted to secure the good will of the audience in this case primarily from two sources, a causa and ab inimicorum persona.^^ He invented a fictitious character who then expressed surprise at the strange events of the case. He expected that the crime must be tanta atrocitas (so heinous) and that eo negledo civitas stare non possit (if it were neglected, the city would not be able to stand), because the case took place during the pubUc games and festival days (1). He sympathized with the jurors who were unable to share in the common leisure because duty demanded their presence in the court. Thus, indirectly he was able to allude to the character of the jury.
Cicero saved his most potent salvos for the character of the adversaries, particularly of Clodia whose testimony was so impor-
-•̂ R. G. Austin, M. Tulli Ciceronis pro Caelio oratio, (Oxford; The Clarendon Press, 1960), pp. 152-154. E. Crownover also accepted this analysis in "The Clash between Clodia and Cicero," Classical journal, 30 (1934), pp. 137-147.
-'T. A. Dorey, "Cicero, Clodia, and the Pro Caelio," Greece & Rome, 5 (1958), pp. 175-180.
-'There is one reference to nostra persona in 1 where Cicero described Caelius as a young man endowed with brilliant talent, diligence, and influence. There is no direct appeal drawn from the character of the jurors or from Cicero himself.
Cicero in Theory and Practice 105
tant. Clodia was described, though not named, as a meretrix who was using her riches to bring this accusation against Caelius. Cicero portrayed her passion as so strong that this imagined person says that it must be restrained. Her passion and her hatred for Caelius were alleged to have been the foundation for the case. In short. Cicero returned to discussing the abuse of power as a means of securing the good wUl of the audience, an appeal he had used so effectively in the Pro Roscio.
Up to this point in the speech, Cicero has followed fairly closely the prescriptive rules of the textbooks. Yet his treatment of Atrati-nus represents a shift away from these rules. Nowhere in the theoretical writings can one find any suggestion that the orator should praise the prosecution as a means of securing good wiU. In this speech, however, Cicero clearly used his comments about Atrati-nus for that very reason. Cicero excused Atratinus' attack on several grounds. First, he recognized that Atratinus was performing a filial duty by prosecuting CaeUus (1). Moreover, Cicero explained that Atratinus might have been ordered to do it, or that because of his youth, Atratinus might have hoped to gain some advantage (2). Whatever the motive which prompted Atratinus' speech, Cicero stood ready to forgive him. There was, however, a more important reason for Cicero's behavior—that is, his friendship with Bestia. Consequently, by excusing Atratinus, especially on the grounds of friendship, Cicero was able to draw himself indirectly into the introduction and thus provide another positive base for securing the good will of the audience.
Because it skirted the central issue of Caelius' second prosecution of Bestia and shifted the attention to a suggestion that Clodia had brought the case, this introduction is a perfect example of insinuatio. Quintilian observed that Cicero diverted the attention of the judges away from the central question and led them to believe that his portrayal of the central issue of the case was valid.'" In so doing, he also managed to secure their good wUl and thus secure a favorable hearing for his client.
PRO MILONE (52 B . C )
If ever anybody faced a hostile situation, clearly Cicero did so in his defense of MUo. MUo had openly kUled Clodius after months
"""Inst. Or., ix, 2, 39.
106 RHETORICA
of feuding between their two gangs. Terrified at the violence which followed Clodius's death, the Senate made Pompey dictator and gave him a senatus consultum. Pompey proceeded to pass a new law de vi, and specifically mentioned the murder of Clodius as falling under it. He also revised the court procedure and omitted Cicero's friends from prospective jury duty in the case. During the first day of the trial, the Clodians created such confusion by their threats and clamoring that Pompey was forced to use his troops to impose order in the court. Furthermore, on the night before Cicero spoke, the tribune Plancus addressed a contio, and urged the people to be present in court to influence the jury against MUo." Conditions could hardly have been less favorable for any advocate.
The introduction of the Pro Milone reflects a return to the textbook sources of securing good wUI. WhUe he did not use himself much as a source of such an appeal, Cicero did develop appeals from the other sources. He appealed to the potestas, audoritas, fides, virtus, and sapientia of the jurors (4). He characterized the opposition as rash, as excited, as men plotting plunderings, burnings, and every sort of disaster against the common welfare (3).
In this speech, though, Cicero most often exploited the situation confronting the court and the character of Milo. Almost the entire first two paragraphs of the speech described in vivid detaU the scene in the court. Soldiers had replaced the traditional ring of Usteners. They had been stationed in the court and also at the temples overlooking the court. The case was described as having an unprecedented form (nova forma) and was being pleaded before an unprecedented type of court (novi iudici).
It was the character of Milo which received the most attention. From the very beginning of the speech, MUo was pictured as the bravest of men, one who cared more for the safety of the state than for his own well-being (I), and one who always supported loyal citizens against agitators (5). Later on, in a praeteritio (to use the later
•̂'R. W. Husband, "The Prosecution of Milo: A Case of Homicide with a Plea of Self-defense," Classical WfeWy, 8(1914-1915), pp. 148-149. See also J. N. Settle, "The Trial of Milo and the Other Pro Milone," Transactions and Proceedings of the American Philological Association, 94 (1963), pp. 268-280. Settle attempted to argue that the Pro Milone which we have today is essentially the speech which Cicero gave in the court that day. He convincingly argued that Cicero rarely completely edited his speeches. While 1 find many of his ideas compelling, 1 am still disturbed bv the closeness of the textbook and the oratory throughout the Pro Milone. This more than anything else suggests a careful reworking of the speech that was delivered.
Cicero in Theory and Practice 107
term of GUbert Austin), Cicero managed to mention Milo's achievements as tribune and cited his many outstanding deeds on behalf of the state (6).
This is an interesting strategy when we remember that not only did the people know that Milo had killed Clodius, but also that they knew that he, like Clodius, was a gang leader and consequently unpopular. Yet this portrayal is completely consistent with Cicero's overall strategy in the speech. Because Clodius' murder was public knowledge, Cicero could not defend MUo on the Conjectural Issue. His defense rested on the Issue of Definition (It was self-defense, not murder) and on the Qualitative Issue (MUo was justified in killing Clodius). Unless Cicero could describe Milo's character positively, his defense would fail. So this positive picture which Cicero painted in the introduction, while not consistent with the facts, nevertheless suited his strategy and was calculated to secure a favorable hearing for later arguments.
There is one more departure here from a strictly textbook approach. One can find no advice in the textbooks which recommends that the orator could or should publicize his private fears which have arisen from undertaking a case. No doubt Cicero himself had felt this fear before, perhaps when he challenged Chrysogonus and Sulla in the Pro Roscio Amerino, yet in the five speeches examined here he never expressed any fear except in the Pro Milone. The careful reader of Ciceronian speeches will automatically suspect some ulterior motive whenever he departs from his customary treatment. This case is no exception. The expressed fear is certainly genuine, but by making it known, Cicero probably hoped to identify himself with the jurors, who themselves probably feared reprisals arising from their verdict, and by making this identification to secure their good will. So for the last time, Cicero brought himself into the introduction, albeit in an indirect way, to reinforce his efforts to conciliate the jury.
CONCLUSIONS
At the beginning of this paper, I suggested that I would attempt to determine to what extent Cicero's speaking corresponded to this prescriptive writings concerning exordia, and to summarize some general characteristics of Ciceronian oratory. The analysis of the speeches supports three conclusions: (I) that Cicero understood
108 R H E T O R I C A
and used effectively the textbook sources of securing the good will; (2) that he often times developed his own character in reinforcing the more traditional appeals; and (3) that he took the material for his introductions ex ipsis visceribus (from the very heart of each case).
That Cicero clearly understood and effectively used the sources of securing good will has been amply demonstrated above. He was not, however, rigid in his development of appeals to the good will of the jury. While he used all the appeals in the Pro Roscio Amerino and the Pro Milone, he barely included appeals ab nostra persona in the Pro Cluentio, Pro Murena, and the Pro Caelio. He likewise tended to avoid extreme appeals ab iudicum persona, perhaps because of the possibility of being overly flattering and thus being perceived as overbearing. Contrary to theory which seemed to favor appeals based on the character of the client and of the adversaries, Cicero in these five speeches usually appealed on the basis of the character of the adversaries and on the basis of the case. Whenever he developed the character of the adversaries, he did it in such a way as to contrast the righteousness of his client to the utterly despicable nature of the prosecution. In the one example where he praised a prosecutor, he did it in such a way as to emerge as the paragon of virtue. So too Cicero always manipulated the iniquitous times to his advantage as with prejudice in the Pro Cluentio and with the festivities in the Pro Caelio.
Cicero also effectively used his own character to secure the good will of the audience. In two speeches, the Pro Roscio and the Pro Murena, he directly developed his character, while in the Pro Caelio and the Pro Milone, he constructed such appeals by insinuation. Personal character development usually appeared as reinforcing his use of the more traditional sources for securing good will, but in the Pro Murena it was the only fully developed appeal. (Perhaps because Cicero recognized the importance of the ethos of advocate particularly in that speech, he thought it necessary to discuss this topic later in his Orator. Whatever interpretation we might give to this event, this is clearly a case of theory growing out of practice.)
Finally, we can conclude that Cicero usuaUy drew the material for his opening remarks out of the central issues of the case. In the Pro Cluentio, for example, we saw how much prejudice surrounded the case and how Cicero immediately went to the heart of the problem in the introduction. Likewise, in the Pro Caelio, Cicero opened
Cicero in Theory and Practice 109
with statements about the riches of a certain meretrix, her unbridled passion, and her hatred for another, all of which he referred to in his later discussion of the case. He accomplished the same thing in the Pro Roscio Amerino by developing the topics of audacity and power in the introduction. On two occasions, however, Cicero stepped outside the case to discover sources of appeal. In both the Pro Caelio and the Pro Milone, he referred to events which, though affecting the atmosphere of the court, had little to do with the substance of the trial.
What than can we say about Clarke's observation that as Cicero involved himself more with politics, he abandoned the prescriptive rules of the textbooks? The above conclusions suggest that Clarke is misguided in his assessment of Ciceronian oratory, at least in respect to introductions. Only if we assume that every introduction ought to include every source for appealing to good will and ought to foUow the models taught to school boys, can we accept Clarke's judgement. Even in the De inventione, Cicero realized the need for spontaneity and variation in introducing cases." We would expect his introductions to focus on different appeals not only so that he could avoid the faults of the exordium, but also so that he could emphasize those points which were central to his defense. Because Cicero used the same sources ad benevolentiam conciliandam about which he wrote in his rhetorical works, we can conclude that there is a strong correspondence between theory and practice in Cicero's exordia even if Cicero usually adapted that theory to fit his own immediate needs.
One more observation needs to be made. Perhaps we have been too hasty in dismissing De inventione as an important classical treatise. We recognize its implications for understanding later Latin rhetorics (Halm's Rhetores Mini minores) and medieval rhetorics, but we quickly move on to Orator, De oratore, and Quintilian when considering the nature of rhetoric and oratory in the Roman republic. Much of the material presented in this paper encourages a reexamination of the De inventione as an important treatise for understanding the complexities of Roman oratory.
*De inv., i, 26. In this section, Cicero discussed several common faults of the introduction. One of the faults to be avoided is using a common introduction, one that seems appropriate to any case. Moreover, in the De oratore, one of the main arguments is that while rules cannot be completely ignored they must always be used artistically to meet the requirements of the case.
