Judges have also their private opinions and prejudices, which we must
either strengthen or weaken, according as we see necessary. Fear, too,
sometimes must be removed, as Cicero, in his defense of Milo, endeavors
to assure the judges that Pompey's army, drawn up about the Forum, is
for their protection; and sometimes there will be an occasion to
intimidate them, as the same orator does in one of his pleadings against
Verres.
There are two ways of proceeding in this last case, the first plausible,
and frequently used, as when it is hinted to them that the Roman people
might entertain an ill opinion of them, or that there might be an appeal
from their judgment; the other desperate, and not so much used, as when
threatened with prosecution themselves if they suffer themselves to be
corrupted. This is a hazardous point, and is conducted with more safety
to the orator when in a large assembly where corrupt judges are
restrained by fear, and the upright have the majority. But I would never
counsel this before a single judge, unless every other resource was
wanting. If necessity requires it, I can not say that it is the business
of the art of oratory to give directions in the matter, any more than to
lodge an appeal, tho that, too, is often of service, or to cite the
judge in justice before he passes sentence, for to threaten, denounce,
or indict may be done by any one else as well as the orator.
If the cause itself should furnish sufficient reason for gaining the
good will of the judge, out of this whatever is most specious and
favorable may be inserted in the exordium. It will be unnecessary to
enumerate all the favorable circumstances in causes, they being easily
known from the state of facts; besides, no exact enumeration can take
place on account of the great diversity of law-suits. It is the cause
itself, therefore, that must teach us to find and improve these
circumstances; and, in like manner, with a circumstance that may make
against us the cause will inform us how it may either be made entirely
void, or at least invalidated.
From the cause compassion also sometimes arises, whether we have
already suffered or are likely to suffer anything grievous. For I am not
of the opinion of those who to distinguish the exordium from the
peroration, will have the one to speak of what is past and the other of
what is to come. They are sufficiently distinguished without this
discrimination. In the exordium the orator ought to be more reserved,
and ought only to throw out some hints of the sentiments of compassion
he designs to excite in the minds of the judges; whereas in the
peroration he may pour out all the passions, introduce persons speaking,
and make the dead to come forth, as it were, out of their graves, and
recommend to the judges the care of their dearest pledges. All these
particulars are seldom executed in the exordium. But the manner just
pointed out, it will be very proper to observe in it, and to wear down
all impressions to the contrary made by the opposite side, that as our
situation will be deplorable if we should be defeated in our
expectations, so, on the other hand, the behavior of our opponent would
be insolent and haughty.