It also would not be amiss to become acquainted, if possible, with his character. For, according as his temper is, harsh or mild, pleasant or grave, severe or easy, the cause should be made to incline toward the side which corresponds with his disposition, or to admit some mitigation or softening where it runs counter to it.
It may happen sometimes, too, that the judge is our enemy, or the opponent's friend. This is a circumstance requiring the circumspection of both parties, yet I think the favored advocate should behave with great caution, for a judge of a biased disposition will sometimes choose to pass sentence against his friends, or in favor of those to whom he bears enmity, that he may not appear to act with injustice.
AROUSING EMOTIONS
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.
MATERIAL FOR THE INTRODUCTION
Besides persons and causes, the exordium likewise is sometimes taken from their adjuncts, that is, from things relating to the cause and persons. To persons are applicable not only the pledges above mentioned, but affinities, friendships, sometimes cities and whole countries are also likely to suffer by the person's misfortunes.
Theophrastus adds another kind of exordium, taken from the pleading of the orator who speaks first. Such seems to be that of Demosthenes for Ctesiphon, in which he requests the judges to please permit him to reply as he thinks suitable rather than to follow the rules prescribed by the accuser.