Both parties appeal to the emotions, but to different ones, with the defence using emotion more frequently and more intensely. The prosecution has to arouse the judges, the defence must soothe them – although even the accuser sometimes seeks tears of pity for the victim he avenges, and the defendant at times must vehemently protest against outrageous slander or conspiracy. Thus it’s convenient to treat strategies for rousing and soothing, respectively. Techniques are similar to what I discussed in connection with the proem, although here, in the peroration, we have freer rein.
At the beginning of a speech we are more sparing in our attempt to sway the judges, since it’s enough to set out on our course, and the entire speech remains. In the epilogue, on the other hand, we have to consider the judge’s state of mind as he proceeds to deliberate, and we no longer have an opportunity to speak or hold arguments in reserve.
So both sides have the common task of winning the judge to their point of view and turning him against their adversary, rousing and settling his feelings. A brief rule can be given as follows for either side: the orator should examine all of the strengths of his case, and, having determined which, in reality or as presented, provoke envy, favour, dislike or pity, emphasize those that would affect him the most if he were judge. But it will be safer to consider this topic in detail.
In my discussion of the exordium I have already described factors that incline the judge towards the accuser. Certain considerations, which it is sufficient to outline at the beginning of a speech, must be treated in full in the peroration, especially if the accused is a violent, unpopular or dangerous sort, or if conviction will bring glory to the judges and acquittal damage their reputations.
For example, Calvus spoke especially well against Vatinius,1 when he said ‘you judges all know that bribery was committed, and everybody else knows that you know.’ In his Speeches against Verres,2 Cicero went so far as to argue that the bad reputation of the courts could be corrected by condemning the defendant (which is one of the methods mentioned earlier). If you are going to summon fear for the same purpose, better here than in the proem. I have already shared my thoughts on this matter in another book.
It’s possible to rouse envy, hatred and anger more freely in the summation. The defendant’s influence makes the judge resentful, his disgraceful conduct rouses hatred and his hostility to the proceedings rouses anger, that is, if he is aggressive, arrogant or indifferent, which can be sensed not only from his deeds or words but from his facial expression, dress and overall manner. When I was young the prosecutor of Cossutianus Capito3 was held in high regard for having spoken, in Greek, to this effect: ‘You are reluctant to show fear even of Caesar.’
For the accuser, it’s most important to make the crime seem especially atrocious and, if possible, exceptionally pitiable. Its atrocious character can arise from the act itself, the perpetrator, the victim, the intent, occasion, place or manner, all of which lend themselves to an infinite range of treatments.
Let’s say we are prosecuting a case of assault. First we speak about the deed itself, then if the victim was old, young, a magistrate, respectable, a good citizen, also if he was struck by someone vile and contemptible or in contrast by someone with too much power or by one who was especially obliged not to do so. Did it happen on a feast day or during a period when the courts were being severe in punishing this type of crime or at a time when the community was in turmoil? Did it happen at a theatre? a temple? a meeting of the assembly?
Resentment is more intense if the crime wasn’t committed by mistake or in a moment of anger, or if the anger was unjustified, for example the victim was helping his father or defending himself or running for office against the assailant, or if it appears that the assailant had intended to do something even worse. The manner of a crime is especially indicative of its atrocious nature, for example, if the act was done deliberately or with intent to insult the victim, as when Demosthenes seeks to rouse resentment against Medias by describing where on his body he was struck, the expression on his assailant’s face and his own costume on the occasion of the crime.4
Or, consider a prosecution for murder. Was it committed with a sword? fire? poison? one wound or many? immediately, or after tormenting the victim with anticipation? – all highly relevant considerations. The accuser will often make use of an appeal to pity by lamenting the misfortune of the one he avenges or the loss suffered by children and parents. He can stir the judges with an image of the future, describing what awaits those who have filed complaints about violence and wrongdoing if they don’t gain justice: exile from the city, loss of property or whatever else an opponent will force them to endure.
But more often the prosecutor’s task is to keep the judge from pitying the defendant and to incite him to do his duty courageously. You must anticipate what the opposition might say or do. For it makes judges more scrupulous about their responsibility and deprives the defence of any advantage if the latter are forced to restate arguments that have already been addressed by the prosecution and have thus lost their surprise value. For example, Messalla, in his prosecution of Aufidia, warned Servius Sulpicius not to mention the danger faced by the signatories or by the defendant herself.5 So too, Aeschines predicted the arguments Demosthenes would use in making a defence.6 Occasionally it will be necessary to tell the judges how they should respond to defence petitions. This is a type of recapitulation or reminder.
In support of the defendant, one can cite personal dignity and valour, the scars of war, and the nobility and deeds of ancestors. This last point Cicero and Asinius raised, almost as if in competition, with the one defending the elder Scaurus, the other defending the younger.7 It’s also helpful to explain the motivation behind the case, for example if the defendant seems to have roused enmity on account of an honourable deed, especially an act of generosity, decency or compassion. It will make his position seem more in line with justice if he can be shown merely to seek from the judges what he has granted to others. Reference can be made to the interests of the state, the renown of the judges, the precedent to be set by the decision and the memory of posterity.
Still, an appeal to pity has the greatest effect. It inclines the judges in your direction and all but forces them to reveal their feelings through their tears. Pity will be sought on the basis of prior or current sufferings of the defendant or the sufferings that await him if condemned. These can be made to seem twice as bad if we discuss his past and potential future status. It’s also worthwhile to call attention to the age and sex of the accused, to his loved ones, namely children, parents and close relations, all of which can be handled in various ways. Sometimes the speaker will emphasize his own close relationship to the defendant, for example Cicero in his speech For Milo:8
O wretched me! O unlucky you! You, Milo, were able to restore me to the country by appealing to these men right here. Will I not be able to retain you in this country by appealing to them as well?
This approach is particularly useful if, as was then the case, the accused is not in a position to beg on his own behalf. For who could stand it if Milo beseeched the court for his own acquittal, given his admission that he had indeed, albeit out of necessity, killed a man of noble rank? And so Cicero sought the favour of the judges by emphasizing Milo’s distinction, and did the weeping for him.
Especially useful in such circumstances are prosopopoeiae, or speeches impersonating others, of the sort an advocate might put in the mouth of a client. The bare facts can stir emotion, but when we speak in the voice of others, their personalities intensify the effect. It is as if the judge is encountering the voice and feeling not of someone lamenting another’s fate, but of the wretches themselves whose silent appearance alone would summon tears. And although it is very moving for a defendant to utter his own laments, it can be even more effective for those laments to be uttered by an impersonator, just as an actor is more effective in stirring emotions when he performs a fictional role on stage than when he speaks in his own person. For example, Cicero, who composed no entreaties for Milo, but instead commended him to the judges for his distinguished character, indirectly supplied him with words befitting the lament of a courageous man, saying:
In vain all my labours! My false hopes! My useless plans!9
An appeal to pity should never be lengthy. Not without reason do we say that nothing dries faster than tears. Time lessens real sorrows; no wonder the semblance of suffering that we fashion in speaking disappears so quickly. If we drag out our lament, the listener grows tired of the tears, takes a mental break and resumes the more intellectual approach which the emotional assault had curtailed. We must not let the effect fizzle out, but should instead abandon the emotion just when we have made it most intense. Nor are we to expect that anyone will weep for long over another’s troubles. In this portion of a speech, then, more than anywhere else, our eloquence must swell, because any expression that does not augment the earlier effect seems to detract from it, and emotion that grows weak easily vanishes.
Action is as important as speech when it comes to summoning tears. This is why defence counsel routinely have their clients appear dirty and ungroomed, along with their children and parents, while the prosecution will display a sword smeared with gore, bone-fragments plucked from wounds, blood-drenched clothing, unbandaged wounds and battered bodies stripped bare. The effect of such displays is enormous as they all but guide the minds of men into the event itself, as when the bloody toga of Julius Caesar10 carried at the head of his funeral procession stirred the Roman people to a frenzy. Everybody knew that he had been killed and that his corpse had been placed on the bier. But the robe drenched with blood made the image of the crime so vivid that it seemed not that Caesar had been killed, but that he was being killed right then and there.
Still, I wouldn’t recommend a practice that I have read of and even witnessed, in which the actual crime is depicted on a placard or canvas with the intent of angering the judge at its atrocity. How childish an orator must be to think that a drawing will speak more effectively than his eloquence! On the other hand, I know for a fact that mourning clothes and squalor, on the defendant and his relatives, have been advantageous, and that prayers of entreaty have saved the day. Appealing to the judges by all that is near and dear to them, especially if the defendant too has a wife and children, will be useful, and calling upon the gods gives the appearance of a clean conscience. Falling on the ground and grasping the knees of the judges can also make a difference, unless the status and prior life of the defendant keep him from doing so. Some deeds must be defended as boldly as they were committed, although there must be a reasonable basis for our insistence. Otherwise overconfidence might cause resentment.
Cicero gives an excellent example of such techniques in his defence of Lucius Murena against very distinguished accusers.11 He persuaded the court that nothing was more advantageous in the then-current state of affairs than that both consuls (including Murena) take office on the first of January. Of course there is no need for such an argument nowadays, when the safety of the state relies on the attention and protection of a single leader and can hardly be imperilled by the outcome of any given trial.
I have spoken about prosecutors and defendants because appeals to emotion are especially important in public trials. But perorations of both sorts are employed in private cases as well, with one side epending on a point-by-point summary of evidence, and the other depending on tears, at least if the status or reputation of the litigant is at risk. To play the tragedian in a minor dispute is like dressing a baby in the mask and boots of Hercules!
Here is another warning: it makes a great difference, in my judgement, how the client adapts himself to the speaker during the epilogue. Sometimes it is the client’s inexperience, stiffness, clumsy or awkward behaviour that spoils the effect, so the speaker must take extra precautions. Believe it or not, I have even seen clients undermining their patrons by showing no expression or changing seats at an inappropriate moment or by some action or expression that sparks laughter, even when the presentation is taking a turn for the dramatic.
Once a patron transferred a little girl, who was said to be the sister of his opponent (for this was the subject of litigation), to the opposite benches, as if he would leave her on her brother’s lap. But the brother, whom I had warned in advance, had left the room. The patron, an eloquent man on other occasions, was rendered speechless by the unexpected turn of events, and carried the infant back to his side, quite awkwardly.
Another orator thought it would be of great benefit to the defendant to display the image of her husband, but it only caused repeated laughter. For the men who were assigned the task of presenting the portrait, not knowing what an epilogue was, kept uncovering the image whenever the speaker looked in their direction. Being a wax impression taken from an old man’s cadaver, it was hideous, and its repeated display ruined the effect of the rest of the oration. What happened to Glyco, whose cognomen was Spiridion, is also well known. When he asked a little boy he had led into court why he was crying, the boy answered: because my tutor is pinching me. But nothing is more instructive about the perils of a peroration than the story Cicero tells about the Caepasii.12
Still, even unexpected events can be handled by a speaker who finds it easy to adapt his performance. Those who stick to the script either grow silent during these incidents or say things that are very often untrue. Hence ‘he extends his suppliant hands to your knees’ or ‘the wretch clings to his children’ or ‘he cries “look at me” ’ even though nothing of the sort is happening. This kind of mistake is the fault of the schools, where we freely make things up, and whatever we want is taken as a given. Reality doesn’t work this way. When a young pleader challenged Cassius,13 ‘Why do you glare at me with angry countenance, Severus?’, the latter brilliantly responded, ‘I was doing nothing of the sort, but if that’s what you’ve written, take a look’, and scowled at him as theatrically as he could.
Something especially to keep in mind: never try to summon tears unless you intend to use the full force of your talent. As effective as an appeal to pity can be when it succeeds, it leaves the audience cold when it fails. A weak speaker would be better off letting the judges figure things out on their own. For the appearance, voice and expression of the defendant too often become a source of amusement to men they are intended to sway. The speaker must take careful stock of his abilities and recognize how great a burden he would be assuming. There is no middle ground here: the performance is met with tears – or laughter.
Of course, the task of the epilogue includes dispelling pity as well as summoning it. We can lead back to justice the judges who have been moved to tears, sometimes through a steady explanation, sometimes with a clever quip, for example ‘Give the boy some bread so he stops crying.’ Or, as counsel said to a heavyset litigant, whose adversary, again a boy, had been carried about among the judges by his own advocate, ‘What am I supposed to do? I can’t hoist you!’
But there’s no need for clowning. Thus, I don’t approve of that once-distinguished orator who, when his opponent had brought forth some little boys during his epilogue, scattered dice among them, which they began to fight over. Their lack of awareness of the seriousness of their situation could just as easily have aroused the audience’s pity. Also mistaken was the speaker who, when the prosecution had displayed the bloody sword that was said to be the murder weapon, immediately, as if in terror, hurried from the benches and, when summoned to speak, peaked out from the audience with his head partly covered and asked whether ‘that fellow with the sword’ had gone away. He got a laugh, but still looked ridiculous.
Theatrical effects of this sort can be diminished by eloquence. Cicero provides a good example when he speaks very gravely about the portrait of Saturninus in defence of Rabirius14 or in his defence of Varenus15 uses many witticisms to counter the appearance in court of a young man whose wound kept being unbandaged.
Epilogues can be of a gentler sort, for example, when we ingratiate ourselves with an adversary who happens to be a person worthy of great respect, or when we offer some friendly advice or encourage reconciliation. Passienus handled this well when he represented his own wife Domitia in a suit to recover money from her brother Ahenobarbus.16 For when he had spoken at length about their relationship, he went on to discuss their fortunes, which were both enormous, saying: ‘There is nothing either of you needs less than what you are arguing about.’
Appeals to emotion, even if they seem characteristic of the proem or the peroration, where indeed they do occur most frequently, nevertheless are sometimes welcome in other sections, provided they are brief and much is kept in reserve. But in the conclusion, if ever, it is permitted to draw on all the sources of eloquence. For if we have spoken well so far, we will have the goodwill of the judges, and, having steered clear of the rocky shoals, can unfurl all our sails. Because the chief task of the epilogue is amplification, it is perfectly acceptable to deploy grand and elevated words and thoughts. It’s time to stir up the whole theatre, so to speak, now that we’ve reached the point at which the tragic and comic playwrights of old would command the audience ‘applaud!’17