Quintilian Institutio Oratoria 6.2

[1] The next subject which I was going to discuss was the peroration which some call the completion and others the conclusion. There are two kinds of peroration, for it may deal either with facts or with the emotional aspect of the case. The repetition and grouping of the facts, which the Greeks call ἀνακεφαλαίωσις and some of our own writers call the enumeration, serves both to refresh the memory of the judge and to place the whole of the case before his eyes, and, even although the facts may have made little impression on him in detail, their cumulative effect is considerable.

[2] This final recapitulation must be as brief as possible and, as the Greek term indicates, we must summarise the facts under the appropriate heads. For if we devote too much time thereto, the peroration will cease to be an enumeration and will constitute something very like a second speech. On the other hand the points selected for enumeration must be treated with weight and dignity, enlivened by apt reflexions and diversified by suitable figures; for there is nothing more tiresome than a dry repetition of facts, which merely suggests a lack of confidence in the judges' memory.

[3] There are however innumerable ways in which this may be done. The finest example is provided by Cicero's prosecution of Verres. ¹ Then follows the enumeration. Another admirable example ² may be found in the same speech where the enumeration of the temples which the praetor had despoiled takes the form of invoking the various deities concerned. We may also at times pretend to be in doubt whether we have not omitted something and to wonder what the accused will say in reply to certain points or what hope tile accuser can have after the manner in which we have refuted all the charges brought against us.

[4] But the most attractive form of peroration is that which we may use when we have an opportunity of drawing some argument from our opponent's speech, as for instance when we say or or

[5] But I must refrain from dealing with the various methods individually, for fear that the instances that I produce should be regarded as exhaustive, whereas our opportunities spring from the nature of the particular case, from the statements of our opponents and also from fortuitous circumstances. Nor must we restrict ourselves to recapitulating the points of our own speech, but must call upon our opponent to reply to certain questions.

[6] This however is only possible if there is time for him to do so and if the arguments which we have put forward are such as not to admit of refutation. For to challenge points which tell in our opponent's favour is not to argue against him, but to play the part of prompter to him.

[7] The majority of Athenians and almost all philosophers who have left anything in writing on the art of oratory have held that the recapitulation is the sole form of peroration. I imagine that the reason why the Athenians did so was that appeals to the emotions were forbidden to Athenian orators, a proclamation to this effect being actually made by the court-usher. ³ I am less surprised at the philosophers taking this view, for they regard susceptibility to emotion as a vice, and think it immoral that the judge should be distracted from the truth by an appeal to his emotions and that it is unbecoming for a good man to make use of vicious procedure to serve his ends. None the less they must admit that appeals to emotion are necessary if there are no other means for securing the victory of truth, justice and the public interest.

[8] It is however admitted by all that recapitulation may be profitably employed in other portions of the speech as well, if the case is complicated and a number of different arguments have been employed in the defence; though no one will doubt but that there are many cases, in which no recapitulation at all is necessary at any point, assuming, that is, that the cases are both brief and simple. This part of the peroration is common both to the prosecution and the defence.

[9] Both parties as a general rule may likewise employ the appeal to the emotions, but they will appeal to different emotions and the defender will employ such appeals with greater frequency and fulness. For the accuser has to rouse the judge, while the defender has to soften him. Still even the accuser will sometimes make his audience weep by the pity excited for the man whose wrongs he seeks to avenge, while the defendant will at times develop no small vehemence when he complains of the injustice of the calumny or conspiracy of which he is the victim. It will therefore be best to treat these duties separately: as I have already said, ⁴ they are much the same in the peroration as in the exordium, but are freer and wider in scope in the former.

[10] For our attempts to sway the judges are made more sparingly at the commencement of the speech, when it is enough that such an attempt should gain admittance and we have the whole speech before us. On the other hand in the peroration we have to consider what the feelings of the judge will be when he retires to consider his verdict, for we shall have no further opportunity to say anything and cannot any longer reserve arguments to be produced later.

[11] It is therefore the duty of both parties to seek to win the judge's goodwill and to divert it from their opponent, as also to excite or assuage his emotions. And the following brief rule may be laid down for the observation of both parties, that the orator should display the full strength of his case before the eyes of the judge, and, when he has made up his mind what points in his case actually deserve or may seem to deserve to excite envy, goodwill, dislike or pity, should dwell on those points by which he himself would be most moved were he trying the case.

[12] But it will be safer to discuss these considerations in detail. The points likely to commend the accuser to the judge have already been stated in my remarks on the exordium. ⁵ There are however certain things which require fuller treatment in the peroration than in the exordium, where it is sufficient merely to outline them. This fuller treatment is specially required if the accused be a man of violent, unpopular or dangerous character or if the condemnation of the accused is likely to cover the judges with glory or his acquittal with disgrace.

[13] Calvus for example in his speech against Vatinius makes an admirable remark: Cicero again in the Verrines ⁶ says that the ill-name acquired by the courts may be effaced by the condemnation of Verres, a statement that comes under the head of the conciliatory methods mentioned above. The appeal to tear also, if it is necessary to employ it to produce a like effect, occupies a more prominent place in the peroration than in the exordium, but I have expressed my views on this subject in an earlier book. ⁷

[14] The peroration also provides freer opportunities for exciting the passions of jealousy, hatred or anger. As regards the circumstances likely to excite such feelings in the judge, jealousy will be produced by the influence of the accused, hatred by the disgraceful nature of his conduct, and anger by his disrespectful attitude to the court, if, for instance, he be contumacious, arrogant or studiously indifferent: such anger may be aroused not merely by specific acts or words, but by his looks, bearing and manner. In this connexion the remark made by the accuser of Cossutianus Capito ⁸ in my young days was regarded with great approval: the words used were Greek, but may be translated thus:—

[15] The best way however for the accuser to excite the feelings of the judge is to make the charge which he brings against the accused seem as atrocious or, if feasible, as deplorable as possible. Its atrocity may be enhanced by considerations of the nature of the act, the position of its author or the victim, the purpose, time, place and manner of the act: all of which may be treated with infinite variety.

[16] Suppose that we are complaining that our client has been beaten. We must first speak of the act itself; we shall then proceed to point out that the victim was an old man, a child, a magistrate, an honest man or a benefactor to the state; we shall also point out that the assailant was a worthless and contemptible fellow, or (to take the opposite case) was in a position of excessive power or was the last man who should have given the blow, or again that the occasion was a solemn festival, or that the act was committed at a time when such crimes were punished with special severity by the courts or when public order was at a dangerously low ebb. Again the hatred excited by the act will be enhanced if it was committed in the theatre, in a temple, or at a public assembly,

[17] and if the blow was given not in mistake or in a moment of passion or, if it was the result of passion which was quite unjustifiable, being due to the fact that the victim had gone to the assistance of his father or had made some reply or was a candidate for the same office as his assailant; or finally we may hint that he wished to inflict more serious injury than he succeeded in inflicting. But it is the manner of the act that contributes most to the impression of its atrocity, if, for example, the blow was violent or insulting: thus Demosthenes ⁹ seeks to excite hatred against Midias by emphasising the position of the blow, the attitude of the assailant and the expression of his face.

[18] It is in this connexion that we shall have to consider whether a man was killed by sword or fire or poison, by one wound or several, and whether he was slain on the spot or tortured by being kept in suspense. The accuser will also frequently attempt to excite pity by complaining of the fate of the man whom he is seeking to avenge or of the desolation which has fallen upon his children or parents.

[19] The judges may also be moved by drawing a picture of the future, of the fate which awaits those who have complained of violence and wrong, if they fail to secure justice. They must go into exile, give up their property or endure to the end whatever their enemy may choose to inflict upon them.

[20] But it will more frequently be the duty of the accuser to divert the judge from all the temptations to pity which the accused will place before him, and to incite him to give a strong and dispassionate verdict. It will also be his duty in this connexion to forestall the arguments and actions to which his opponent seems likely to have recourse. For it makes the judge more cautious in observing the sanctity of his oath and destroys the influence of those who are going to reply to us when the arguments used by the defence have already been dealt with by the prosecution, since they lose their novelty. An instance of this will be found in the speech of Messala against Aufidia, ¹⁰ where he warns Servius Sulpicius not to talk about the peril which threatens the signatories to the document and the defendant herself. Again Aesehines ¹¹ foretells the line of defence which Demosthenes will pursue. There are also occasions when the judges should be told what answer they should make to requests on behalf of the accused, a proceeding which is a form of recapitulation.

[21] If we turn to the defendant, we must note that his worth, nis manly pursuits, the scars from wounds received in battle, his rank and the services rendered by his ancestors, will all commend him to the goodwill of the judges. Cicero, ¹² as I have already pointed out, and Asinius both make use of this form of appeal: indeed they may almost be regarded as rivals in this respect, since Cicero employed it when defending the elder Scaurus, Asinius when defending the son. Again,

[22] the cause which has brought the accused into peril may serve to produce the same effect, if, for example, it appears that he has incurred enmity on account of some honourable action: above all his goodness, humanity or pity may be emphasised with this end in view. For it adds to the apparent justice of his claim, if all that he asks of the judge is that he should grant to him what he himself has granted to others. We may also in this connexion lay stress on the interests of the state, the glory which will accrue to the judges, the importance of the precedent which their verdict will set and the place it will hold in the memory of after generations.

[23] But the appeal which will carry most weight is the appeal to pity, which not merely forces the judge to change his views, but even to betray his emotion by tears. Such appeals to pity will be based either on the previous or present sufferings of the accused, or on those which await him if condemned. And the force of our appeal will be doubled if we contrast the fortune which he now enjoys with that to which he will be reduced, if he fail.

[24] In this connexion great play may be made by reference to the age and sex of the accused, or to his nearest and dearest, that is, his children, parents and kindred, all of which topics are treated in different ways. Sometimes the advocate himself may even assume the role of close intimacy with his client, as Cicero does in the pro Milone, ¹³ where he cries: Such a method is especially serviceable when, as was the case with Milo, entreaty is not in keeping with the character of the accused.

[25] Who would have endured to hear Milo pleading for his life, when he admitted that he had killed a man of noble birth because it was his duty to do so? Consequently Cicero sought to win the judges' goodwill for Milo by emphasising the staunchness of his character, and himself assumed the role of suppliant. Impersonation may also be employed with profit in such passages, and by impersonations I mean fictitious speeches supposed to be uttered, such as an advocate puts into the mouth of his client. The bare facts are no doubt moving in themselves; but when we pretend that the persons concerned themselves are speaking, the personal note adds to the emotional effect.

[26] For then the judge seems no longer to be listening to a voice bewailing another's ills, but to hear the voice and feelings of the unhappy victims, men whose appearance alone would call forth his tears even though they uttered never a word. And as their plea would awaken yet greater pity if they urged it with their own lips, so it is rendered to some extent all the more effective when it is, as it were, put into their mouth by their advocate: we may draw a parallel from the stage, where the actor's voice and delivery produce greater emotional effect when he is speaking in an assumed role than when he speaks in his own character. Consequently Cicero, to quote him once again,

[27] although he will not put entreaties into Milo's mouth, and prefers to commend him by his staunchness of character, still lends him words in the form of such complaint as may become a brave man. ¹⁴ he says, Appeals to pity should, however, always be brief, and there is good reason for the saying that nothing dries so quickly as tears. ¹⁵

[28] Time assuages even genuine grief, and it is therefore inevitable that the semblance of grief portrayed in our speech should vanish yet more rapidly. And if we spend too much time over such portrayal our hearer grows weary of his tears, takes a breathing space, and returns once more to the rational attitude from which lie has been distracted by the impulse of the moment.

[29] We must not, therefore, allow the effect which we have produced to fall flat, and must consequently abandon our appeal to the emotion just when that emotion is at its height, nor must we expect anyone to weep for long over another's ills. For this reason our eloquence ought to be pitched higher in this portion of our speech than in any other, since, wherever it fails to add something to what has preceded, it seems even to diminish its previous effect, while a diminuendo is merely a step towards the rapid disappearance of the emotion.

[30] Actions as well as words may be employed to move the court to tears. Hence the custom of bringing accused persons into court wearing squalid and unkempt attire, and of introducing their children and parents, and it is with this in view that we see blood-stained swords, fragments of bone taken from the wound, and garments spotted with blood, displayed by the accusers, wounds stripped of their dressings, and scourged bodies bared to view.

[31] The impression produced by such exhibitions is generally enormous, since they seem to bring the spectators face to face with the cruel facts. For example, the sight of the bloodstains on the purple-bordered toga of Gaius Caesar, which was carried at the head of his funeral procession, aroused the Roman people to fury. They knew that he had been killed; they had even seen his body stretched upon the bier: but his garment, still wet with his blood, brought such a vivid image of the crime before their minds, that Caesar seemed not to have been murdered, but to be being murdered before their very eyes.

[32] Still I would not for this reason go so far as to approve a practice of which I have read, and which indeed I have occasionally witnessed, of bringing into court a picture of the crime painted on wood or canvas, that the judge might be stirred to fury by the horror of the sight. For the pleader who prefers a voiceless picture to speak for him in place of his own eloquence must be singularly incompetent.

[33] On the other hand, I know that the wearing of mourning and the presentation of an unkempt appearance, and the introduction of relatives similarly arrayed, has proved of value, and that entreaties have been of great service to save the accused from condemnation. The practice therefore of appealing to the judges by all that is near and dear to them will be of great service to the accused, especially if he, too, has children, a wife and parents.

[34] Invocation of the gods, again, usually gives the impression that the speaker is conscious of the justice of his cause, while it may produce a good effect if the accused throws himself on the ground and embraces the knees of the judges, unless his character, his past life and station prohibit a resort to this device: for there are some acts which require to be defended with no less boldness than was required for their commission. But we must take care not to carry matters with too high a hand, for fear of creating a bad impression by an appearance of over-confidence. ¹⁶

[35] The most effective of all such methods was in times past that by which more than anything else Cicero is considered to have saved Lucius Murena ¹⁷ from the attacks of his accusers, who were men of the greatest distinction. For he persuaded the court that nothing was more necessary in view of the critical position of affairs than that Murena should assume the consulship on the thirty-first of December. This form of appeal is now, however, almost entirely obsolete, since the safety of the state is to-day dependent on the watchful care of a single ruler, and cannot conceivably be imperilled by the result of a trial.

[36] I have spoken of accusers and accused because it is in situations involving danger that the emotional appeal is most serviceable. But private cases also admit of both kinds of peroration, namely, that which consists in the recapitulation of the proofs and that which takes the form of an appeal for pity, the latter being employed when the position or reputation of the litigant seems to be in danger. For to embark on such tragic methods in trivial cases would be like putting the mask and buskins of Hercules on a small child.

[37] It is also worth while pointing out that, in my opinion, the manner in which the client whose sorrows we parade before the court conforms his behaviour to the methods of his advocate is of the utmost importance. For sometimes our appeal falls flat owing to the ignorance, rusticity, indifference or uncouthness of our client, and it is consequently most important that the advocate should take all necessary precautions in this connexion.

[38] I have often seen clients whose behaviour was wholly out of keeping with the line adopted by their counsel, since their expression showed not the slightest emotion, while they displayed a most unseasonable cheerfulness and even aroused laughter by their looks or actions; such incongruity is especially frequent when the appeal is of a theatrical character.

[39] On one occasion an advocate produced a girl alleged to be the sister of the opposing party (for it was on this point that the dispute turned) and led her across to the benches occupied by his opponents as though to leave her in the arms of her brother: I however had given tile brother timely warning and he had left his seat. The advocate, although as a rule an eloquent speaker, was struck dumb by the unexpected turn of events and took his little girl back again in the tamest possible manner.

[40] There was another advocate who was defending a woman who thought to secure a great effect by producing the portrait of her husband, but sent the court into repeated peals of laughter. For the persons entrusted with the duty of handing in the portrait had no idea of the nature of a peroration and displayed it whenever the advocate looked their way, and when at last it was produced at the proper moment it destroyed all the good effect of his previous eloquence by its hideousness, for it was a wax cast taken from an old man's corpse.

[41] We are also familiar with the story of what happened to Glycon, nicknamed Spiridion. He asked a boy whom he produced in court why he was crying; to which the boy replied, that his paedagogus was pinching him. But the most effective warning as to the perils which beset the peroration is the story told by Cicero ¹⁸ about the Caepasii.

[42] But all these perils may be boldly faced by those who have no difficulty in changing their line of pleading. Those however who cannot get away from what they have written, are reduced to silence by such emergencies or else led into making false statements, as for instance if an advocate should say, or or although the person in question is doing none of these things.

[43] Such faults are due to the practice of the schools, where we are free to feign what we will with impunity, because we are at liberty to invent facts. But this is impossible when we are confronted with realities, and it was an excellent remark that Cassius made to a young orator who said, To which he replied, And he fixed his eyes on him with the most ferocious scowl that he could muster.

[44] There is one point which it is specially important to remember, that we should never attempt to move our audience to tears without drawing on all the resources of our eloquence. For while this form of emotional appeal is the most effective of all, when successful, its failure results in anti-climax, and if the pleader is a feeble speaker he would have been wiser to leave the pathos of the situation to the imagination of the judges.

[45] For look and voice and even the expression on the face of the accused to which the attention of the court is drawn will generally awaken laughter where they fail to awaken compassion. Therefore the pleader must measure and make a careful estimate of his powers, and must have a just comprehension of the difficulty of the task which he contemplates. For there is no halfway house in such matters between tears and laughter.

[46] The task of the peroration is not however confined to exciting pity in the judges: it may also be required to dispel the pity which they feel, either by a set speech designed to recall them from their tears to a consideration of the justice of the case, or by a few witticisms such as, or the remark made by counsel to a corpulent client, whose opponent, a mere child, had been carried round the court by his advocate,

[47] Such jests should not however descend to buffoonery. Consequently I cannot give my approval to the orator, although he was one of the most distinguished speakers of his day, who, when his opponent brought in some children to enhance the effect of his peroration, threw some dice among them, with the result that they began to scramble for them. For their childish ignorance of the perils with which they were threatened might in itself have awakened compassion.

[48] For the same reason I cannot commend the advocate who, when his opponent the accuser produced a bloodstained sword in court, fled suddenly from the benches as though in an agony of terror, and then, when his turn came to plead, peeped out of the crowd with his head half covered by his robe and asked whether the man with the sword had gone away. For though he caused a laugh, he made himself ridiculous.

[49] Still, theatrical effects of the kind we are discussing can be dispelled by the power of eloquence. Cicero provides most admirable examples of the way in which this may be done both in the pro Rabirio ¹⁹ where he attacks the production in court of the portrait of Saturninus in the most dignified language, and in the pro Vareno where he launches a number of witticisms against a youth whose wound had been unbound at intervals in the course of the trial.

[50] There are also milder kinds of peroration in which, if our opponent is of such a character that he deserves to be treated with respect, we strive to ingratiate ourselves with him or give him some friendly warning or urge him to regard us as his friends. This method was admirably employed by Passienus when he pleaded in a suit brought by his wife Domitia against her brother Ahenobarbus for the recovery of a sum of money: he began by making a number of remarks about the relationship of the two parties and then, referring to their wealth, which was in both cases enormous, added,

[51] All these appeals to emotion, although some hold that they should be confined to the exordium and the peroration, which are, I admit, the places where they are most often used, may be employed in other portions of the speech as well, but more briefly, since most of them must be reserved for the opening or the close. But it is in tile peroration, if anywhere, that we must let loose the whole torrent of our eloquence.

[52] For, if we have spoken well in the rest of our speech, we shall now have the judges on our side, and shall be in a position, now that we have emerged from the reefs and shoals, to spread all our canvas, while since the chief task of the peroration consists of amplification, we may legitimately make free use of words and reflexions that are magnificent and ornate. It is at the close of our drama that we must really stir the theatre, when we have reached the place for the phrase with which the old tragedies and comedies used to end,

[53] In other portions of the speech we must appeal to the emotions as occasion may arise. For it would clearly be wrong to set forth facts calling for horror and pity without any such appeal, while, if the question arises as to the quality of any fact, such an appeal may justifiably be subjoined to the proofs of the fact in question.

[54] When we are pleading a complicated case which is really made up of several cases, it will be necessary to introduce a number of passages resembling perorations, as Cicero does in the Vetrines, where he laments over Philodamus, the ships' captains, the crucifixion of the Roman citizen, and a number of other tragic incidents.

[55] Some call these μερικοὶ ἐπίλογοι, by which they mean a peroration distributed among different portions of a speech. I should regard them rather as species than as parts of the peroration, since the terms epilogue and peroration both clearly indicate that they form the conclusion of a speech.