[2]See Vasaly, Representations, pp. 160-1 and especially Rosc. Am. 46-7.

[3]The tactic is used in De Oratore 1.55 (cf. 1.43), but without comment there or elsewhere. Nor is it systematically discussed in the modern literature; cf. n.19.

[4]Of course none of this assumes that Cicero gives a "fair" presentation of the other sides' views, but he will have had to base his appropriation on what they said. (I will make the sense of "base on" more specific below.) Otherwise, the device seems to lose its point. In fact, it would reduce Cicero's own credibility if he attributed totally alien material to them. This is confirmed, in my opinion, by the fact that in most cases we can reconstruct a plausible reason for the opposition to advance the considerations of which Cicero takes advantage.

[5]It is conceivable that the original objection had more to do with the necessity of a consul's maintaining an irreproachable moral standard, and thus was closely related to the following objection that the proposer of a law on ambitus ought not defend someone on that charge. But such an objection would amount to the claim that a consul (or any other magistrate) would be tainted by conducting a criminal defense, and there is no evidence for that claim anywhere else.

[6]Of course we soon learn (Mur. 4) that the benefit consists in ensuring that there will be two consuls to defend against Catiline.

[7]By contrast, in Mur. 4-6 Cicero responds to two further objections: that as proposer of a law on ambitus he ought not to defend someone on that charge, and that as the harsh suppressor of the conspiracy, he ought not to ask for leniency for anyone else. In that speech Cicero merely replies that these considerations are irrelevant to the present case, instead of transvaluing them.

[8]The argument in pro Plancio can itself be read as a reversal based on the prosecution's claims about the achievements of Laterensis after his quaestorship "[Laterensem] Cyrenis liberalem in publicanos, iustum in socios fuisse" (Planc. 63; for dating see F. Münzer, "Iuventus [16]," RE 10.2 [1919]: 1366). The prosecution's original claim had little to do with place, however; Cicero picks up on the single word Cyrenis.

[9]On the strategy in which the orator aligns himself with the prosecutor, see C. P. Craig, "The Accusator as Amicus: An Original Roman Tactic of Ethical Argumentation," TAPA 111 (1981): 31-37, esp. 32-3, 35.

[10]The letters were read aloud by Antony (Phil. 2.7) and acknowledged by Cicero (Phil. 2.9).

[11]Asconius 41.18C claims that this is the sole argument of the original speech.

[12]See C. P. Craig, Form as Argument in Cicero's Speeches: A Study of Dilemma (Atlanta, 1993), p. 172, under his A.2 for a list of many examples.

[13]Asc. 41.14-18C: "Itaque cum insidias Milonem Clodio fecisse posuissent accusatores, quia falsum id erat--nam forte illa rixa commissa fuerat--Cicero apprehendit et contra Clodium Miloni fecisse insidias disputavit, eoque tota oratio eius." It is not impossible that Asconius' report is here dependent on Cicero's text, but he clearly had access to (and interest in) a variety of materials no longer extant, and speeches of Cicero's opponents (at least in notable trials) apparently survived even beyond his own day (Quint. 10.1.23).

[14]The reason for Cicero's insistence on a plea of self-defence (cf. Asc. 41.9-14C) is a matter of some speculation; see A. Lintott, "Cicero and Milo," JRS 64 (1974): 61-78, A. Stone, "Pro Milone: Cicero's Second Thoughts," Antichthon 14 (1980): 88-111, esp. 91, and M. Clark and J. Reubel, "Philosophy and Rhetoric in Cicero's Pro Milone," RhM 128 (1985): 57-72. We should also compare the tendency in Cicero's murder trials (Rosc. Am., Clu.) to accuse the prosecution of the crime.

[15]Roland Barthes noted the same strategy (preemptive appropriation) in Racine's Phèdre, albeit in more abstract form (Sur Racine [Paris, 1960], p. 119).

[16]While Cicero overstates the strength (and especially the religiosity) of the governor/quaestor relationship in this speech, L. A. Thompson, "The Relationship Between Provincial Quaestors and their Commanders-in-Chief," Historia 11 (1962): 339-55 makes it clear that the relationship ideally followed a father/son model, and violating it could reasonably be construed as an offense against pietas.

[17]W. Stroh, Taxis und Taktik (Stuttgart, 1975), p. 180 and Craig, Form as Argument, p. 62 claim that Cicero distorts Caecilius' (potential) argument about the quaestorship by detaching the claim that he was Verres' quaestor from the claim that he had subsequently been injured by Verres. While this argument from motive may have been Caecilius' central point, the parallel to pro Sulla suggests that he may well have intended to claim greater knowledge of the evidence as well.

[18]Two further examples: Milo's prosecutors apparently claimed that he killed Clodius to secure his political position (Mil. 34: obstabat in spe consulatus Miloni Clodius). But, Cicero objects, Milo's greatest political asset was Clodius' opposition. As long as the people feared Clodius they would continue to support and elect Milo. Now Milo would have to rely on more conventional (Mil. 34: usitatis) means to command support. Hence: "Non modo igitur nihil prodest sed obest etiam mors Clodi" (Mil. 34). Personal political advantage would have directed Milo to spare Clodius, not kill him. Here the shared assumption is that Milo did (or did not) kill Clodius on the basis of deliberate, political calculation. In Sestius' trial the prosecutor had referred to Cicero and his political allies as a natio optimatium (Sest. 96, 132). The force of this objection lies in the separatist implications of natio (cf. OLD, s.v. natio 2, 4). Cicero accepts the whole phrase but emphasizes instead optimatium and its opt- root. On Cicero's tendentious definitions (Sest. 96, 97) optimatium is a very general term, which eliminates the negative implications of natio. Presumably the prosecutor used the term ironically, but in so doing he gave Cicero the opportunity to claim a monopoly on virtue.

[19]Nor, for that matter, is it much noted in modern works. Vasaly, Representations, p. 158 notes its appearance in pro Roscio, but is concerned with other issues and so does not discuss the strategy as such.

[20]Cicero's list is slightly more expansive than Aristotle's (Rhet. 1375a24-5; cf. 1355b37): laws, witnesses, contracts, torture, oaths.

[21]There is a distant relative to be found in the humorous topic at De Or. 2.286: "Saepe etiam facete concedas adversario id ipsum, quod tibi ille detrahit." This, however, is reversal without appropriation. In Cicero's example Laelius replies to a humble man's accusations that he (Laelius) was not worthy of his ancestors "At hercule...tu tuis dignus." The response gains a certain topicality from the opponent's claim, but it is hard to discern any proposition, explicit or implicit, which is derived from the opponent.

[22]F. Rohde, Cicero, Quae de Inventione Praecepit, Quatenus Secutus Sit in Orationibus Generis Iudicalis (diss. Koenigsburg, 1903), p. 130.

[23]George Kennedy ("The Rhetoric of Advocacy in Greece and Rome," AJP 89 [1968]: 419-36, p. 436) has observed that ancient rhetorical theory lagged behind oratorical practice. The original observation is sound, and it is worthwhile to point out that the present discussion provides another example. However, "lag" is a description, not an explanation (especially when orator and rhetorician are the same person--Cicero). The argument here about categories points out one of the factors (there are doubtless others) that causes the phenomenon in question.

[24]Vasaly, Representations, p. 187 makes this connection for Rosc. Am.

[25]The value of various sorts of evidence (witnesses, documents, etc.) was of course the subject of a variety of rhetorical topoi pro and con (Rhet. Her. 2.9-14; Cic. De Or. 2.118-9, Part. Or. 49-51, Top. 73-8; Quint. 5.2-7). Many of these arguments do not strictly reverse each other in practice since the orator will often not make claims about an entire category ("documents are unreliable"), but about particular members of that category ("this document has been forged"). In these examples the conflict is one of fact.

[26]Clu. 138-42 shows that such inconsistency could be embarrassing, though not necessarily fatal, if pointed out by the opposition. This was perhaps more of a problem for Cicero than for orators who published less.

[27]Although our extant declamations are (certainly) post-Ciceronian, and the term declamatio used of these exercises is (possibly) a product of Cicero's adulthood, the practices seem to go back at least to the time of his education. See S. F. Bonner, Roman Declamation in the Late Republic and Early Empire (Liverpool, 1949), pp. 1-31, and M. Winterbottom, "Cicero and the Silver Age," Entretiens sur l'Antiquité Classique 28 (1981): 237-74 [Éloquence et rhétorique chez Cicéron], pp. 254-6.

[28]The translations are those of M. Winterbottom's Loeb edition of the Elder Seneca (Cambridge, 1974).

[29]What follows is also valid for the few historically situated (though not always very specifically or accurately) contraversiae: 3.8, 4.2, 4.8, 6.5, 7.2 (related to Cicero), 8.2, 9.1, 9.2, 10.5.

[30]For both the argument and the detail of this paragraph I am indebted to an unpublished paper by Matthew B. Roller, "Color-blindness: Cicero's Death and Declamatory Versions of History in the Early Empire" (MS, Johns Hopkins).

[31]For other such remarks and more general discussion of the treatment of Cicero in the first century A. D., see Winterbottom, "Silver Age," pp. 241-4.

[32]On the extent and historical context of this process of "dehistoricization" see W. M. Bloomer, Valerius Maximus and the Rhetoric of the New Nobility (Chapel Hill, 1992), pp. 11-58.

[33]Of course they are free to emphasize different aspects of the schematization, as Asconius (41.22-4C) points out of the arguments from opportunity in Milo's trial in 52.

[34]This particular example is a "reverse argument from probability" (Arist. Rhet. 1402a18-20, there attributed to Corax, one of the legendary discoverers of rhetoric), a form that is not common in Roman oratory. The general form of the argument claims the defendant would have anticipated the prosecutor's argument from probability and would therefore not have committed the crime. For the history of this argument see M. Gagarin, "The Nature of Proofs in Antiphon," CP 85 (1990): 22-32, p. 30. This form of appropriation can be applied against any argument from probability, and its universal applicability is obvious. The transparently mechanical nature of the argument reduces its value and thus the frequency of its use. By contrast, the other appropriations Cicero uses are much more specific to their respective circumstances. He changes the basis of evaluation from ethical to practical (or vice versa; Sull., Div. Caec.), appeals to Roman traditions (Rosc., Div. Caec.), or produces relevant exempla from his own life (Planc.). Inventio as described above will incline the orator to produce such appropriations, but it does not automatically create them for him.

[35]H. Gotoff, "Oratory: the Art of Illusion," HSCP 95 (1993): 289-313, pp. 301-7.

[36]See A. Afzelius, "Zwei Episoden aus dem Leben Ciceros," C+M 5 (1942): 209-17, p.214 and Vasaly, Representations, pp. 168-9.

[37]Quint. 5.10.12-13: "Pro certis autem habemus...ea in quae communi opinione consensum est: `deos esse,' `praestandum pietatem parentibus.'"

³⁸Quint. 5.10.12: "Pro certis autem habemus primum quae sensibus percipiuntur, ut quae videmus audimus." (cf. Vasaly, Representations, pp. 255-7).

[39]Cf. Asconius 70.13-15C (speaking of an exemplum): "Non praeterire autem vos volo esse oratoriae calliditatis ius ut, cum opus est, eisdem rebus ab utraque parte vel a contrariis utantur." If valid the hypothesis presented here ought to hold for Greek oratory as well, since the rhetorical theory (or at least the oral tradition from which theory is eventually inferred) is largely the same and the trial situation similarly adversarial. In fact, a very cursory check of the corpus of Attic orators turned up several examples: Andoc. Mys. 137-9, Antiphon Chor. 17, Lys. 24.10-11. Cf. also the references to Antiphon's tetralogies above and the reversal of an "anticipated" argument at Isae. Cleo. 36-38.

[40]Cf. R. G. Austin (ed. and comm.), Cicero: pro M. Caelio Oratio³ (Cambridge, 1960), pp. 46, 48.

[41]In Phil. 2.11-14 even this is not the case; a man's tenure of a magistracy would have been clearly understood as relevant to his moral character.

[42]I would like to thank Christopher Craig, Michael Gagarin, M. Gwyn Morgan, and CP's anonymous readers for their generous help in the shaping of this paper.