Remarks on altercation, § 1-5. Too much neglected by some pleaders, 6, 7. Qualifications requisite for success in it; acuteness, knowledge of the case, good temper, attention to the main question, 8-13. Further observations, 14-16. We may dissemble our strength, in order to mislead our adversary, 17, 18. Disposition of the judge to be observed, 19, 20. The student should exercise himself in this department, 21. Order of proofs is important, 22. 1. IT might appear that I should not enter upon precepts concerning altercation until I have treated of every particular regarding continuous speaking, for recourse is had to altercation last of all. But because it depends on invention alone, and can have no concern with arrangement, nor requires any great ornament from style, or much assistance from memory or delivery, I think that before I proceed to the second of the five parts, I shall treat of this, which is connected wholly with the first, in a proper place if I speak of it here. 2. It is a matter which other writers have neglected, perhaps because sufficient regard seemed to have been paid to it in the other rules of the art. For altercation consists either in attack or defense, concerning which a considerable number of directions have been given, since whatever is proper with regard to proofs in a continued speech must also necessarily be applicable to the brevity and conciseness of altercation, in which no other topics are introduced than are in the rest of the pleading. They are only treated in another manner, that is, by way of question and answer. Almost all that is necessary to be observed with respect to this head has been noticed by me in the part relating to witnesses. 3. Yet, as I am pursuing this work on an extensive plan, and as an orator cannot be called accomplished without ability in altercation, let me devote a little particular attention to this point also, which, indeed, in some causes, contributes greatly to ensure success. 4. For as, with regard to the general quality of an action, when it is considered whether it was justly done or otherwise, continuous speaking is most required, which also sufficiently sets forth, for the most part, questions of definition or exception, as well as all those in which a fact is admitted or inferred by conjecture from artificial proof. So in those causes (a very numerous class) which either depend solely on proofs called inartificial, or such as are of a mixed kind, the heat of altercation is frequently most fierce. Nor should we say that advocates point their swords at each other in any part of a cause more closely than in this. 5. For the strongest arguments must here be inculcated on the mind of the judge. Whatever we promised in the course of our pleading must be made good, and the false allegations of the opposite party must be refuted. There is no part of a cause, indeed, in which the judge is more attentive, and some pleaders, though but of moderate power in speaking, have, by their excellence in disputation, gained a just title to the name of advocates. 6. But satisfied with having bestowed on their clients the showy labor of declamation, some, on the other hand, quit the benches at the close of it, attending with a crowd of flatterers and leaving to ignorant and mean practitioners the conduct of the battle which ought to decide the cause. 7. Accordingly, in private causes, we may see some advocates chosen for pleading and others for the establishment of proofs. But if these duties are to be divided, the latter is surely of more importance than the former. It is dishonorable to oratory to say that inferior pleaders profit their clients more than those of greater ability. At public trials, however, the voice of the crier cites him who has pleaded as well as the other advocates. 8. For such disputation, then, there is need, in the first place, of a quick and active intellect, and of a ready and keen judgment. For we have no time to reflect, but must speak at once, and aim a blow at our adversary at the same time that we parry his attempt on ourselves. As it is of the greatest importance, therefore, to every part of an orator's duty, to know his whole cause not only accurately, but familiarly, so it is of the utmost necessity, in altercation with our adversary, to have a thorough knowledge of all the characters, instruments, times, and places connected with it. Otherwise, we shall often be put to silence, or, if others suggest replies to us, we must, from necessary haste to speak, unreasoningly acquiesce in what they say. Therefore, it will sometimes happen that in trusting to others, we shall have to blush for their folly. Nor is the matter made clear by these monitors. 9. Some advocates, too, try undisguisedly to bring us to a quarrel, for we may see many of them, transported apparently with wrath, calling upon the judge to attend and saying that what is suggested is contrary to fact. He who is to decide the cause should understand the evil to which is kept out of sight. 10. He who would be a good disputant, therefore, must be free from the vice of passionateness, for no affection of the mind is a greater enemy to reason. It carries us out of the cause, leads us frequently to offer and incur gross insults, and sometimes draws upon us the indignation of the judges themselves. Moderation is better, and sometimes even sufferance, for allegations made by the opposite party must not only be refuted, but must be held up to contempt, must be undervalued and ridiculed. Nor can wit find any better place for exercise than this. Such is the case as long as matters are conducted with order and due respect to us, but against turbulent adversaries we must show a bold face and oppose impudence with firmness. 11. For there are some speakers of such a hardened front that they assail us with loud bluster, interrupt us in the middle of a speech, and confuse and disturb the whole proceedings. These we must be so far from imitating that we must vigorously repel them. Their insolence must be put down, and we must at times appeal to the judges or presiding magistrates that the times for speaking may be fairly observed. It is no task for an indolent mind, or an excessively modest character. That which is called honesty often bears a false name and should rather be called imbecility. 12. What is of the greatest value in disputation is acuteness, which doubtless does not come from art (since what is natural is not taught), but may be improved by art. 13. The chief requisite is to keep the point in dispute and that which we wish to establish constantly before our eyes, because if we keep to one object, we shall not be led into useless altercation or waste the time due to the cause in railing. If our adversary commits such errors, we shall have the pleasure of taking advantage of them. 14. All occasions may be turned to advantage for those who have meditated carefully what may be objected on the opposite side or what replies may be made on their own. It is a kind of artifice employed at times, however, to contrive that certain points, which have been concealed in the course of the pleading, may be suddenly brought forth in the subsequent altercation, starting out as it were in an unexpected sally or a spring from an ambush. This is a plan which may be adopted when there is some particular in the cause on which we cannot speak satisfactorily at once, but which we can make clear when time is given us for consideration. 15. It is best to bring forward that which is secure and solid at the commencement of our proceedings, so we may insist upon it the oftener and the longer. It seems scarcely necessary to direct that a disputant should not be turbulent and clamorous merely like people who are utterly strangers to learning, for audacity, though it may be troublesome to the adversary, is at the same time hateful to the judge. 16. It is inexpedient, too, to contend long for a point which you cannot carry, for it is better to yield where you must be conquered. If there are several points in dispute, the good faith which we show with regard to one will cause us to be more trusted with respect to others; if there be but one point, a lighter penalty may be inflicted on us in consequence of a candid acknowledgment. To persist in vindicating a fault, especially when it is exposed, is to commit another fault. 17. While the contest is undecided, there is great skill and artifice in drawing on our adversary when wandering from the point and forcing him to go as far from it as possible in such a way that he may exult at times in false hopes of success. Some points in our evidence may accordingly be kept back with advantage, for our opponents will perhaps press for them with importunity and risk the whole of their cause on what they think that we cannot produce, adding authority to our proofs by the earnestness with which they demand them. 18. It may be of use, too, at times to abandon some point to our adversary which he may think in his favor, in order that while he is grasping it, he may let slip something of greater importance; or to offer him his choice of two things, either of which he will choose to his disadvantage. This course may be adopted with more effect in altercation than in regular pleading, because in the one we reply to ourselves, and in the other we convict our adversary, as it were, on his own confession. 19. It is the part of an acute pleader to observe, above all, by what remarks the judge is most impressed, and to what he listens with disapprobation, a circumstance which may often be discovered from his looks and sometimes from some word or gesture. He ought then to insist upon whatever promotes his object, and to withdraw adroitly from whatever is prejudicial to him. It is in such a way that physicians act. They continue or cease to give medicines just as they see that they are relished or loathed by the patient. 20. Sometimes if it is difficult to make a point we have stated clear, we may raise another question and fix the attention of the judge, if possible, upon it, for when you yourself cannot answer to a thing, what is to be done but to find something else to which your opponent may be unable to answer? 21. In regard to most parts of a disputation, as I observed, the same is to be said as in regard to the examination of witnesses, the difference being only with respect to persons, as in the one case the contest is between advocates, and in the other between the witness and the advocate. But to exercise one's self in disputation is much easier, for it is possible and may be of the greatest advantage to choose, in conjunction with someone engaged in the same studies, a subject, either true or fictitious, for discussion, and to take different sides upon it after the manner of altercations in the courts, a practice which may also be adopted in respect to the simple sort of questions. 22. I would also have an advocate understand in what order his various proofs should be brought before the judge in such disputations, and the same plan may be adopted with regard to them as with regard to the arguments in his speech, namely, that the strongest be placed first and last, for the former dispose the judge to believe him and the latter to decide in his favor.
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