8. Whether an orator ought always to plead gratuitously, is a question which admits of discussion, and which it would be mere inconsiderateness to decide at once, and without reflection; for who is ignorant that it is by far the more honourable, and more worthy of the liberal arts and of the feelings which we expect to find in an orator, not to set a price on his efforts, and thus lower the estimation of so great a blessing as eloquence, as many things seem worthless in the eyes of the world for no other reason than that they may be purchased? 9. This, as the saying is, is clear enough even to the blind; nor will any pleader who has but a competency for himself, (and a little will suffice for a competency,) make a gain of his art without incurring the charge of meanness. But if his circumstances demand something more for his necessary requirements than he actually possesses, he may, according to the opinions of all wise men, allow a recompence to be made him ; since contributions were raised for the support even of Socrates; and Zeno, Cleanthes, and Chrysippus took fees from their scholars. 10. Nor do I see any more honourable way of gaining support than by the practice of a noble profession, and by receiving remuneration from those whom we have served, and who, if they made no return, would be unworthy of defence. Such a return, indeed, is not only just, but necessary, as the very labour and time devoted to other people's business precludes all possibility of making profit by any other means. 11. But in this respect also moderation is to be observed; and it makes a great difference from whom an orator receives fees, and how many, and for how long a time. The rapacious practice of making bargains, and the detestable traffic of those who ask a price proportioned to the risk of their clients, will never be adopted even by such as are but moderately dishonest, especially when he who defends good men and good causes has no reason to fear that any one whom he

* Let no one suppose that this assertion is at variance with what is stated in the sixth chapter of the first book of Xenophon's Memorabilia of Socrates; for the pay, on which the sophists lived luxuriously, differed greatly from a small contribution, given only when necessary, for the very simplest maintenance. Such a contribution seems to be indicated by the very obscure words of Aristoxenus given in Diogenes Laertius, ii. 20. Spalding.

He is not to continue to demand fees, after he has been enriched by the patronage which he has received. Spalding.

f

defends will be ungrateful; or, if such should be the case, I had rather that the client should be in fault than the pleader. 12. The orator, therefore, will entertain no desire of gaining more than shall be just sufficient, and, even if he be poor, will not receive anything as pay, but will consider it merely as a friendly acknowledgment of service, being conscious that he has conferred much more than he receives. Benefits of such a nature, because they are not to be sold, are not therefore to be thrown away; and it belongs to the obliged party to show gratitude.

CHAPTER VIII.

The orator must study a cause well before he ventures to plead it; he must examine all documents connected with it, and thoroughly weigh the statements of his client.

1. THE next thing to be considered is the mode of studying a cause, which constitutes the foundation of pleading; for no speaker can be imagined of such extremely slender powers, as, when he has carefully ascertained every particular in a cause, to be unable to state it at least to the judge. 2. But very few orators take sufficient trouble in this respect; for, to say nothing of those who are utterly careless, and who give themselves no concern on what the success of a cause depends, if there be but points which, though wholly unconnected with the case, but relating to characters involved in it, and leading to the usual flourishes on common-place topics, may afford them an opportunity for noisy declamation, there are some also whom vanity perverts, and who, (partly pretending that they are constantly occupied, and have always something which they must first dispatch, tell their client to come to them the day, or the very morning, before the trial, and sometimes even boast that they received their instructions while the court was sitting; 3. or, partly assuming a show of extraordinary ability, that they may be thought to understand things in a moment, making believe that they conceive and comprehend almost before they hear,) after they have chanted forth, with wonderful eloquence, and the loudest clamours of applause from

their partizans, much that has no reference either to the judge or to their client, are conducted back, in a thorough perspiration, and with a long train of attendants, through the forum.

4. Nor can I tolerate the foppishness of those who desire that their friends should be instructed in the causes which they have to plead; though, indeed there may be less harm done in this case, if the friends learn accurately and repeat accurately. But who will learn a cause with the same care as the pleader himself? How can the depositary, the mere instrument of communication in cases,* bestow his attention contentedly on other men's causes, when, even to those who are going to plead, their own causes are of so little moment?

5. But the most pernicious practice of all is, for an orator to be content with written memorials, which either the party who has recourse to an advocate, because he is unable to conduct his own cause, has drawn up, or which some one of that class of advocates has composed, who confess that they are incapable of pleading, and yet undertake that which is the most difficult part of a pleader's business. For why should not he, who can judge what ought to be said, what ought to be suppressed, or altered, or imagined, stand forth as an orator himself, when, what is far more difficult, he makes an orator? 6. Such composers of memorials, however, would be less mischievous, if they wrote down everything merely as it occurred; but they add motives and colouring, and inventions that do more harm than the plain truth;t and most of our orators, when they receive these farragos, think it wrong to make any change in them, but adhere to them as strictly as to cases proposed in the schools.‡ The consequence is, that they find themselves deceived, and learn the cause, which they would not learn from their own client, from the advocates of the opposite party. Let us allow plenty of time, then, and a place of interview free from interruption, to those who shall have occasion to consult us, and let us earnestly exhort them to state every particular off hand, however verbosely, or however far they may wish to go back; for it is a less inconvenience to listen to what is *Media litium manus.] Compare xi. 2, 3.

7.

† Aliqua pejora veris.] While they endeavour to throw into the shade the true difficulties in a cause, they often introduce, through want of skill, what is far more injurious than the truth would be. This is Rollin's view of the words. He takes veris for a dative, but, an it app without necessity. See iv. 2, 28.

superfluous than to be left ignorant of what is essential. 8. Frequently, too, the orator will find both the evil and the remedy in particulars which to the client appeared to have no weight on either side of the question. Nor should a pleader have so much confidence in his memory as to think it too great trouble to write down what he hears.

Nor should he be content with hearing only once; the client should be required to repeat the same things again and again; not only because some things might have escaped his memory at the first recital, especially if he be, as is often the case, an illiterate person; but also that we may see whether he tells exactly the same story; for many state what is false, and, as if they were not stating their case but pleading it, address themselves, not as to an advocate, but as to a judge. 9. We must never therefore place too much reliance on a client; but he must be sifted, and cross-examined, and obliged to tell the truth; for as, by physicians, not only apparent ailments are to be cured, but even such as are latent are to be discovered, even though the persons who require to be healed conceal them, so an advocate must look for more than is laid before him. 10. When he has exercised sufficient patience in listening, he must assume another character, and act the part of the adversary; he must state whatever can possibly be imagined on the other side, and whatever the nature of the case will allow in such a discuss n of it. The client must be questioned sharply, and pressed hard; for, by searching into every particular, we sometimes discover truth where we least expected to find it.

11. In a word, the best advocate for learning the merits of a cause is he that is least credulous; for a client is often ready to promise everything; offering a cloud of witnesses, and sealed documents quite ready, † and averring that the adversary himself will not even offer opposition on certain points. 12. It is therefore necessary to examine all the writings relating to a case; it is not sufficient to inspect them; they must be read through; for very frequently they are either not at all such as they were asserted to be, or they contain less than was stated, or

* Testem populum.] Il a la faveur du peuple. Gedoyn. He has the whole world on his side, according to his own statement.

+ Paratisimas consignationes.] See Turneb. Adv. ii. 27. These consig. nationes are sealed documents given in evidence, of which Quintilian speaks in b. v. c. 7. In the third chapter of this book, sect. 5, ho calls them testationes. Capperonier. Comp. Cicero pro Quint. F. c. 6.

they are mixed with matters that may injure the client's cause, or they say too much, and lose all credit from appearing to be exaggerated. 13. We may often, too, find a thread broken,* or wax disturbed,† or signatures without attestation; all which points, unless we settle them at home, will embarrass us unexpectedly in the forum; and evidence which we are obliged to give up will damage a cause more than it would have suffered from none having been offered.

14. An advocate will also bring out many points which his client regarded as having no bearing on the case, if he but go over all the grounds which I have previously specified for arguments; and as it will be by no means convenient to review all these, and try them one by one, while we are pleading, for the reasons which I have given,§ so, in studying a cause, it will be necessary to examine minutely what sort of characters are concerned in it, what times, or places, or practices, or documents, have any reference to it, and all other particulars, from which not only artificial proofs¶ may be drawn, but it may be ascertained what witnesses are to be feared, and how they are to be refuted; for it makes a great difference whether an accused person suffers under envy, or dislike, or contempt, of which the first is generally directed against superiors, the second against equals, and the third upon inferiors. 15. After having thus thoroughly examined a cause, and brought before his eyes everything that may promote or hinder its success, let him, in the third place, put himself in the place of the judge, and imagine the cause to be pleaded before him; and whatever arguments would move him most if he had really te pass sentence on the matter, let him suppose that those arguments will have most effect upon any judge before whom it may be brought. Thus the result will seldom deceive him; or, if it does, it will be the fault of the judge.

* Linum ruptum.] The thread which was passed three times round the document, and affixed to it with a seal. Gesner refers to Paullus, Sent. v. 25, 25; Sueton. Ner. c. 17.

Turbata cera.] Burmann reads turbatam ceram, with Salmasius də Mod. Usur. p. 451. To the ablative, however, as Spalding observes, there is no objection in regard to construction.

B. v. c. 10.

S V. 10, 125; comp. Cic. de Orat. ii. 34. Gesner.

Instituta.] This word must be understood as referring to customs habits, and modes of pleading among the people where the cause i tried. Spalding. ¶ B. v. c. 1.