Quintilian, Institutio Oratoria, Book 4
Harold Edgeworth Butler, Ed.

Book IV

pr. I have now, my dear Marcellus Victorius, completed the third book of the work which I have dedicated to you, and have nearly finished a quarter of my task, and am confronted with a motive for renewed diligence and increased anxiety as to the judgment it may be found to deserve. For up to this point we were merely discussing rhetoric between ourselves and, in the event of our system being regarded as inadequate by the world at large, were prepared to content ourselves with putting it into practice at home and to confine ourselves to the education of your son and mine. [2] But now Domitianus Augustus has entrusted me with the education of his sister's grandsons, and I should be undeserving of the honour conferred upon me by such divine appreciation, if I were not to regard this distinction as the standard by which the greatness of my undertaking must be judged. [3] For it is clearly my duty to spare no pains in moulding the character of my august pupils, that they may earn the deserved approval of the most righteous of censors. The same applies to their intellectual [p. 5] training, for I would not be found to have disappointed the expectations of a prince pre-eminent in eloquence as in all other virtues. [4] But no one is surprised at the frequency with which the greatest poets invoke the Muses not merely at the commencement of their works, but even further on when they have reached some important passage and repeat their vows and utter fresh prayers for assistance. [5] Assuredly therefore I may ask indulgence for doing what I omitted to do when I first entered on this task and calling to my aid all the gods and Himself before them all (for his power is unsurpassed and there is no deity that looks with such favour upon learning), beseeching him to inspire me with genius in proportion to the hopes that he has raised in me, to lend me propitious and ready aid and make me even such as he has believed me to be. [6] And this, though the greatest, is not the only motive for this act of religious devotion, but my work is of such a nature that, as it proceeds, I am confronted with greater and more arduous obstacles than have yet faced me. For my next task is to explain the order to be followed in forensic causes, which present the utmost complication and variety. I must set forth the function of the exordium, the method of the statement of facts, the cogency of proofs, whether we are confirming our own assertions or refuting those of our opponents, and the force of theperoration, whether we have to refresh the memory of the judge by a brief recapitulation of the facts, or to do what is far more effective, stir his emotions. [7] Some have preferred to give each of these points separate treatment, fearing that if they undertook them as a whole the burden would be greater than they [p. 7] could bear, and consequently have published several books on each individual point. I have ventured to treat them altogether and foresee such infinite labour that I feel weary at the very thought of the task I have undertaken. But I have set my hand to the plough and must not look back. My strength may fail me, but my courage must not fail.

1. The commencement or exorditum as we call it in Latin is styled a proem by the Greeks. This seems to me a more appropriate name, because whereas we merely indicate that we are beginning our task, they clearly show that this portion is designed as an introduction to the subject on which the orator has to speak. [2] It may be because οἴμη means a tune, and players on the lyre have given the name of proem to the prelude which they perform to win the favour of the audience before entering upon the regular contest for the prize, that orators before beginning to plead make a few introductory remarks to win the indulgence of the judges. [3] Or it may be because οἶμος in Greek means a way, that the practice has arisen of calling an introduction a proem. But in any case there can be no doubt that by proem we mean the portion of a speech addressed to the judge before he has begun to consider the actual case. And it is a mistaken practice which we adopt in the schools of always assuming in our exordia that the judge is already acquainted with the case. [4] This form of licence arises from the fact that a sketch of the case is always given before actual declamation.¹ Such kinds of exordia may, however, be employed in the [p. 9] courts, when a case comes on for the second time, but never or rarely on the first occasion, unless we are speaking before a judge who has knowledge of the case from some other source.

[5] The sole purpose of the exordium is to prepare our audience in such a way that they will be disposed to lend a ready ear to the rest of our speech. The majority of authors agree that this is best effected in three ways, by making the audience well-disposed, attentive and ready to receive instruction. I need hardly say that these aims have to be kept in view throughout the whole speech, but they are especially necessary at the commencement, when we gain admission to the mind of the judge in order to penetrate still further.

[6] As regards good-will, we secure that either from persons connected with the case or from the case itself. Most writers have divided these persons into three classes, the plaintiff, the defendant and the judge. [7] This classification is wrong, for the exordium may sometimes derive its conciliatory force from the person of the pleader. For although he may be modest and say little about himself, yet if he is believed to be a good man, this consideration will exercise the strongest influence at every point of the case. For thus he will have the good fortune to give the impression not so much that he is a zealous advocate as that he is an absolutely reliable witness. It is therefore pre-eminently desirable that he should be believed to have undertaken the case out of a sense of duty to a friend or relative, or even better, if the point can be made, by a sense of patriotism or at any rate some serious moral consideration. No doubt it is even more [p. 11] necessary for the parties themselves to create the impression that they have been forced to take legal action by some weighty and honourable reason or even by necessity. [8] But just as the authority of the speaker carries greatest weight, if his undertaking of the case is free from all suspicion of meanness, personal spite or ambition, so also we shall derive some silent support from representing that we are weak, unprepared, and no match for the powerful talents arrayed against us, a frequent trick in the exordia of Messala. [9] For men have a natural prejudice in favour of those who are struggling against difficulties, and a scrupulous judge is always specially ready to listen to an advocate whom he does not suspect to have designs on his integrity. Hence arose the tendency of ancient orators to pretend to conceal their eloquence, a practice exceedingly unlike the ostentation of our own times. [10] It is also important to avoid giving the impression that we are abusive, malignant, proud or slanderous toward any individual or body of men, especially such as cannot be hurt without exciting the disapproval of the judges. [11] As to the judge, it would be folly for me to warn speakers not to say or even hint anything against him, but for the fact that such things do occur. Our opponent's advocate will sometimes provide us with material for our exordium: we may speak of him in honorific terms, pretending to fear his eloquence and influence with a view to rendering them suspect to the judge, or occasionally, though very seldom, we may abuse him, as Asinius did in his speech on behalf of the heirs of Urbinia, where he includes among the proofs of the weakness of the plaintiff's case the fact that he has secured Labienus as his advocate. [p. 13] [12] Cornelius Celsus denies that such remarks can be considered as belonging to the exordium on the ground that they are irrelevant to the actual case. Personally I prefer to follow the authority of the greatest orators, and hold that whatever concerns the pleader is relevant to the case, since it is natural that the judges should give readier credence to those to whom they find it a pleasure to listen. [13] The character of our client himself may, too, be treated in various ways: we may emphasise his worth or we may commend his weakness to the protection of the court. Sometimes it is desirable to set forth his merits, when the speaker will be less hampered by modesty than if he were praising his own. Sex, age and situation are also important considerations, as for instance when women, old men or wards are pleading in the character of wives, parents or children. [14] For pity alone may move even a strict judge. These points, however, should only be lightly touched upon in the exordium, not run to death. As regards our opponent he is generally attacked on similar lines, but with the method reversed. For power is generally attended by envy, abject meanness by contempt, guilt and baseness by hatred, three emotions which are powerful factors to alienate the good-will of the judges. [15] But a simple statement will not suffice, for even the uneducated are capable of that: most of the points will require exaggeration or extenuation as expediency may demand: the method of treatment belongs to the orator, the points themselves belong to the case.

We shall win the good-will of the judge not merely by praising him, [16] which must be done with tact and is an artifice common to both parties, but [p. 15] by linking his praise to the furtherance of our own case. For instance, in pleading for a man of good birth we shall appeal to his own high rank, in speaking for the lowly we shall lay stress on his sense of justice, on his pity in pleading the cause of misfortune, and on his severity when we champion the victims of wrong, and so on. [17] I should also wish, if possible, to be acquainted with the character of the judge. For it will be desirable to enlist their temperaments in the service of our cause, where they are such as are like to be useful, or to mollify them, if they are like to prove adverse, just according as they are harsh, gentle, cheerful, grave, stern, or easy-going. It will, however, [18] sometimes happen that the judge is hostile to us and friendly to our adversaries. Such cases demand the attention of both parties and I am not sure that the party favoured by the judge does not require to handle the situation with even more care than his opponent. For perverse judges have sometimes a preposterous tendency to give judgment against their friends or in favour of those with whom they have a quarrel, and of committing injustice merely to avoid the appearance of partiality. [19] Again some have been judges in cases where their own interests were involved. I note, for instance, in the books of observations published by Septimius that Cicero appeared in such a case, while I myself, when I appeared on behalf of Queen Berenice, actually pleaded before her. In such cases we must be guided by the same principles that I have laid down above. The opponent of the judge will emphasise his confidence in the justice of his client's cause, while the advocate of his interests will express the fear that the judge may be influenced [p. 17] by a quixotic delicacy. [20] Further, if the judge is thought to have come into court with a prejudice in favour of one side, we must try to remove or strengthen that prejudice as circumstances may demand. Again occasionally we shall have to calm the judges' fears, as Cicero does in the pro Milone, where he strives to persuade them not to think that Pompey's soldiers have been stationed in the court as a threat to themselves. Or it may be necessary to frighten them, as Cicero does in the Verrines.² [21] There are two ways of bringing fear to bear upon the judges. The commonest and most popular is to threaten them with the displeasure of the Roman people or the transference of the juries to another class³; the second is somewhat brutal and is rarely employed, and consists in threatening them with a prosecution for bribery: this is a method which is fairly safe with a large body of judges, since it checks the bad and pleases the good members of the jury, but I should never recommend its employment with a single judge⁴ except in the very last resort. [22] But if necessity should drive us to such a course, we must remember that such threats do not come under the art of oratory, any more than appeals from the judgment of the court (though that is often useful), or the indictment of the judge before he gives his decision. For even one who is no orator can threaten or lay an information.

[23] If the case affords us the means of winning the favour of the judge, it is important that the points which seem most likely to serve to our purpose should be selected for introduction into the exordium. [p. 19] On this subject Verginius falls into error, for he asserts that Theodorus lays down that some one reflexion on each individual question that is involved by the case should be introduced into the exordium. As a matter of fact Theodorus does not say this, [24] but merely that the judge should be prepared for the most important of the questions that are to be raised. There is nothing to object to in this rule, save that he would make it of universal application, whereas it is not possible with every question nor desirable in every case. For instance, seeing that the plaintiff's advocate speaks first, and that till he has spoken the judge is ignorant of the nature of the dispute, how is it possible for us to introduce reflexions relating to all the questions involved? The facts of the case must be stated before that can be done. We may grant that some questions may be mentioned, for that will sometimes be absolutely necessary; but can we introduce all the most important questions, or in other words the whole case? If we do we shall have completed our statement of facts within the limits of the exordium. Again if, as often happens, [25] the case is somewhat difficult, surely we should seek to win the good-will of the judge by other portions of our speech sooner than thrust the main questions upon him in all their naked harshness before we have done anything to secure his favour. If the main questions ought always to be treated at the beginning of a speech, we might dispense with the exordium. [26] We shall then occasionally introduce certain points from the main questions into the exordium, which will exercise a valuable influence in winning the judge to regard us with favour. It is not necessary to enumerate [p. 21] the points which are likely to gain us such favour, because they will be obvious as soon as we have acquainted ourselves with the circumstances of each dispute, while in view of the infinite variety presented by cases it is out of the question to specify them here. [27] Just, however, as it is in the interest of our case to note and amplify these points, so it is also to rebut or at any rate lessen the force of anything that is damaging to our case. Again our case may justify an appeal to compassion with regard to what we have suffered in the past or are likely to suffer. [28] For I do not share the opinion held by some, that the exordium and the peroration are to be distinguished by the fact that the latter deals with the past, the former with the future. Rather I hold that the difference between them is this: in our opening any preliminary appeal to the compassion of the judge must be made sparingly and with restraint, while in the peroration we may give full rein to our emotions, place fictitious speeches in the mouths of our characters, call the dead to life, and produce the wife or children of the accused in court, practices which are less usual in exordia. [29] But it is the function of the exordium not merely to excite the feelings to which I have alluded, but to do all that is possible to show that our opponent's case is not deserving of them. It is advantageous to create the impression not merely that our fate will be deserving of pity, if we lose, but that our adversary will be swollen with outrageous insolence if he prove successful.

[30] But exordia are often drawn from matters which do not, strictly speaking, concern either cases or the persons involved, though not unrelated to either. [p. 23] In such relation to persons stand not only wives and children of whom I have just spoken, but also relations, friends, and at times districts and states together with anything else that is like to suffer injury from the fall of the client whom we defend. [31] As regards external circumstances⁵ which have a bearing on the case, I may mention time, which is introduced in the exordium of the pro Caelio, place (in the pro Deiotaro),the appearance of the court (in the pro Milone),public opinion (in the Verrines),and finally, as I cannot mention all, the ill-repute of the law courts and the popular expectation excited by the case. None of these actually belong to the case, but all have some bearing on it. [32] Theophrastus adds that the exordium may be drawn from the speech of one's opponent, as that of the pro Ctesiphonte of Demosthenes appears to be, where he asks that he may be allowed to speak as he pleases and not to be restricted to the form laid down by the accuser in his speech.

[33] Confidence often labours under the disadvantage of being regarded as arrogance. But there are certain tricks for acquiring good-will, which though almost universal, are by no means to be neglected, if only to prevent their being first employed against ourselves. I refer to rhetorical expressions of wishing, detestation, entreaty, or anxiety. For it keeps the judge's attention on the alert, if he is led to think the case novel, important, scandalous, or likely to set a precedent, still more if he is excited by concern for himself or the common weal, when [p. 25] his mind must be stirred by hope, fear, admonition, entreaty and even by falsehood, if it seems to us that it is likely to advance our case. [34] We shall also find it a useful device for wakening the attention of our audience to create the impression that we shall not keep them long and intend to stick closely to the point. The mere fact of such attention undoubtedly makes the judge ready to receive instruction from us, but we shall contribute still more to this effect if we give a brief and lucid summary of the case which he has to try; in so doing we shall be following the method adopted by Homer and Virgil at the beginning of their poems. [35] For as regards the length of the exordium, it should propound rather than expound, and should not describe how each thing occurred, but simply indicate the points on which the orator proposes to speak. I do not think a better example of this can be found than the exordium to the pro Cluentio of Cicero. [36] “I have noted, judges, that the speech for the prosecution was divided into two parts: of these, the first seemed to rest and in the main to rely on the odium, now inveterate, arising from the trial before Junius, while the other appeared to touch, merely as a matter of form, and with a certain timidity and diffidence, on the question of the charge of poisoning, though it is to try this point that the present court has been constituted in accordance with the law.” All this, however, is easier for the defender than the prosecutor, since the latter has merely to remind the judge, while the former has to instruct him. [37] Nor shall any authority, however great, induce me to abandon my opinion that it is always desirable to render the judge attentive and ready to receive [p. 27] instruction. I am well aware that those who disagree with me urge that it is to the advantage of a bad case that its nature should not be understood; but such lack of understanding arises not from inattention on the part of the judge, but from his being deceived. [38] Our opponent has spoken and perhaps convinced him; we must alter his opinion, and this we cannot do unless we render him attentive to what we have to say and ready to be instructed. What are we to do then? I agree to the view that we should cut down, depreciate and deride some of our opponent's arguments with a view to lessening the attention shown him by the judge, as Cicero did in the pro Ligario. [39] For what was the purpose of Cicero's irony save that Caesar should be induced to regard the case as presenting only old familiar features and consequently to give it less attention? What was his purpose in the pro Caelio⁶ save to make the case seem far more trivial than had been anticipated?

It is, however, obvious that of the rules which I have laid down, some will be applicable to one case and some to another. [40] The majority of writers consider that there are five kinds of causes, the honourable, the mean, the doubtful or ambiguous, the extraordinary and the obscure, or as they are called in Greek, ἔνδοξον, ἄδοξον, ἀμφίδοξον, παράδοξον and δυσπαρακολούθητον. To these some would add a sixth, the scandalous, which some again include under the heading of the mean, others under the extraordinary. [41] The latter name is given to cases which are contrary to ordinary expectation. In ambiguous cases it is specially important to secure the good-will of the judge, in the obscure to render him ready to receive [p. 29] instruction, in the mean to excite his attention. As regards the honourable the very nature of the case is sufficient to win the approval of the judge; in the scandalous and extraordinary some kind of palliation is required.

[42] Some therefore divide the exordium into two parts, the introduction and the insinuation, making the former contain a direct appeal to the good-will and attention of the judge. But as this is impossible in scandalous cases, they would have the orator on such occasions insinuate himself little by little into the minds of his judges, especially when the features of the case which meet the eye are discreditable, or because the subject is disgraceful or such as to meet with popular disapproval, or again if the outward circumstances of the case are such as to handicap it or excite odium (as for instance when a patron appears against a client or a father against a son), or pity (as when our opponent is an old or blind man or a child). [43] To save the situation the rhetoricians lay down a number of rules at quite inordinate length: they invent fictitious cases and treat them realistically on the lines which would be followed in actual pleading. But these peculiar circumstances arise from such a variety of causes as to render classification by species impossible, and their enumeration save under the most general heads would be interminable. [44] The line to be adopted will therefore depend on the individual nature of each case. As a general principle, however, I should advise the avoidance of points which tell against us and concentrate on those which are likely to be of service. If the case itself is weak, we may derive help from the character of our client; if his character is doubtful, we may find salvation in the nature of [p. 31] the case. If both are hopeless, we must look out for something that will damage our opponent. For though it is desirable to secure as much positive good-will as possible, the next best thing is to incur the minimum of actual dislike. [45] Where we cannot deny the truth of facts that are urged against us, we must try to show that their significance has been exaggerated or that the purpose of the act was not what is alleged or that the facts are irrelevant or that what was done may be atoned for by penitence or has already been sufficiently punished. It is consequently easier for an advocate to put forward such pleas than for his client, since the former can praise without laying himself open to the charge of arrogance and may sometimes even reprove him with advantage to the case. [46] At times, like Cicero in his defence of Rabirius Postumus,⁷ he will pretend that he himself is strongly moved, in order to win the ear of the judge and to give the impression of one who is absolutely convinced of the truth of his cause, that so his statements may find all the readier credence whether he defends or denies the actions attributed to his client. Consequently it is of the first importance, wherever the alternative is open to us, to consider whether we are to adopt the character of a party to the suit or of an advocate. In the schools, of course, we have a free choice in the matter, but it is only on rare occasions that a man is capable of pleading his own case in the actual courts. [47] When we are going to deliver a declamation on a theme that turns largely on its emotional features, we must give it a dramatic character suited to the persons concerned. For emotions are not transferable at will, nor can we give the same forcible [p. 33] expression to another man's emotions that we should give to our own. [48] The circumstances which call for insinuation arise also in cases where the pleading of our opponent has made a powerful impression on the minds of the judges, or where the audience whom we have to address are tired. The first difficulty we shall evade by promising to produce our own proofs and by eluding the arguments of our opponents, the second by holding out hopes that we shall be brief and by the methods already mentioned for capturing the attention of the judges. [49] Again an opportune display of wit will often restore their flagging spirits and we may alleviate their boredom by the introduction of entertaining matter derived from any source that may be available. It will also be found advantageous to anticipate the objections that may be raised by our opponent, as Cicero⁸ does when he says “I know that some persons are surprised that one, who for such a number of years has defended so many and attacked none, should have come forward as the accuser of Verres,” he then goes on to show that the accusation which he has undertaken is really a defence of the allies, an artifice known as πρόληψις or anticipation. [50] Although this is at times a useful device, some of our declaimers employ it on practically every occasion, on the assumption that one should always start with the order thus reversed.

The adherents of Apollodorus reject the view stated above to the effect that there are only three respects in which the mind of the judge requires to be prepared, and enumerate many others, relating to the character of the judge, to opinions regarding matters which though outside the case have still [p. 35] some bearing on it, to the opinion current as to the case itself, and so on ad infinitum: to these they add others relating to the elements of which every dispute is composed, such as persons, deeds, words, motives, time and place, occasions and the like. Such views are, I admit, perfectly correct, [51] but are covered by one or other of the three classes which I have mentioned. For if I can secure good-will, attention and readiness to learn on the part of my judge, I cannot see what else I ought to require; even fear, which perhaps may be thought more than anything else to lie outside the considerations I have mentioned, secures the attention of the judge and deters him from favouring our opponent.

[52] It is not, however, sufficient to explain the nature of the exordium to our pupils. We must also indicate the easiest method of composing an exordium. I would therefore add that he who has a speech to make should consider what he has to say; before whom, in whose defence, against whom, at what time and place, under what circumstances he has to speak; what is the popular opinion on the subject, and what the prepossessions of the judge are likely to be; and finally of what we should express our deprecation or desire. Nature herself will give him the knowledge of what he ought to say first. [53] Nowadays, however, speakers think that anything with which they choose to start is a proem and that whatever occurs to them, especially if it be a reflexion that catches their fancy, is an exordium. There are, no doubt, many points that can be introduced into an exordium which are common to other parts of a speech, but the best test of the appropriateness of a point to any part of a speech is to consider whether it would [p. 37] lose effect by being placed elsewhere. [54] A most attractive form of exordium is that which draws its material from the speech of our opponent, if only for the reason that the fact of its not having been composed at home, but having been improvised on the spot to meet the needs of the case increases the orator's reputation for natural talent by the readiness with which it is produced and carries conviction owing to the simple and ordinary language in which it is clothed. As a result, even although the rest of the speech has been committed to writing and carefully elaborated, the whole of the speech will often be regarded as extempore, simply because its commencement is clearly not the result of previous study. [55] Indeed a certain simplicity in the thoughts, style, voice and look of the speaker will often produce so pleasing an effect in the exordium that even in a case where there is no room for doubt the confidence of the speaker should not reveal itself too openly. For as a rule the judge dislikes self-confidence in a pleader, and conscious of his rights tacitly demands the respectful deference of the orator. [56] No less care must be taken to avoid exciting any suspicion in this portion of our speech, and we should therefore give no hint of elaboration in the exordium, since any art that the orator may employ at this point seems to be directed solely at the judge. [57] But to avoid all display of art in itself requires consummate art: this admirable canon has been insisted on by all writers, though its force has been somewhat impaired by present conditions, since in certain trials, more especially those brought on capital charges or in the centumviral⁹ court, the judges themselves demand the most finished and [p. 39] elaborate speeches, think themselves insulted, unless the orator shows signs of having exercised the utmost diligence in the preparation of his speech, and desire not merely to be instructed, but to be charmed. [58] It is difficult to preserve the happy mean in carrying this precept into effect: but by a skilful compromise it will be possible to give the impression of speaking with care but without elaborate design. The old rule still holds good that no unusual word, no overbold metaphor, no phrase derived from the lumber-rooms of antiquity or from poetic licence should be detected in the exordium. [59] For our position is not yet established, the attention of the audience is still fresh and imposes restraint upon us: as soon as we have won their good-will and kindled their interest, they will tolerate such freedom, more especially when we have reached topics whose natural richness prevents any licence of expression being noticed in the midst of the prevailing splendour of the passage. [60] The style of the exrordiumn should not resemble that of our purple patches nor that of the argumentative and narrative portions of the speech, nor yet should it be prolix or continuously ornate: it should rather seem simple and unpremeditated, while neither our words nor our looks should promise too much. For a method of pleading which conceals its art and makes no vain display, being as the Greeks say ἀνεπίφατος¹⁰ will often be best adapted to insinuate its way into the minds of our hearers. But in all this we must be guided by the extent to which it is expedient to impress the minds of the judges.

[61] There is no point in the whole speech where confusion of memory or loss of fluency has a worse effect, [p. 41] for a faulty exordium is like a face seamed with scars; and he who runs his ship ashore while leaving port is certainly the least efficient of pilots. [62] The length of the exordium will be determined by the case; simple cases require a short introduction only, longer exordia being best suited to cases which are complicated, suspect or unpopular. As for those who have laid it down as a law applying to all exordia that they should not be more than four sentences long, they are merely absurd. On the other hand undue length is equally to be avoided, lest the head should seem to have grown out of all proportion to the body and the judge should be wearied by that which ought to prepare him for what is to follow. [63] The figure which the Greeks call apostrophe, by which is meant the diversion of our words to address some person other than the judge, is entirely banned by some rhetoricians as far as the exordium is concerned, and for this they have some reason, since it would certainly seem to be more natural that we should specially address ourselves to those whose favour we desire to win. [64] Occasionally however some striking expression of thought is necessary in the exordium which can be given greater point and vehemence if addressed to some person other than the judge. In such a case what law or what preposterous superstition is to prevent us from adding force to such expression of our thought by the use of this figure? [65] For the writers of text-books do not forbid it because they regard it as illicit, but because they think it useless. Consequently if its utility be proved, we shall have to employ it for the very reason for which we are now forbidden to do so. [66] Moreover Demosthenes [p. 43] turns to address Aeschines in his exordium,¹¹ while Cicero adopts the same device in several of his speeches, but more especially in the pro Ligario,¹² where he turns to address Tubero. [67] His speech would have been much less effective, if any other figure had been used, as will be all the more clearly realised, if the whole of that most vigorous passage “You are, then, in possession, Tubero, of the most valuable advantage that can fall to an accuser etc.” be altered so as to be addressed to the judge. For it is a real and most unnatural diversion of the passage, which destroys its whole force, if we say “Tubero is then in possession of the most valuable advantage that can fall to an accuser.” [68] In the original form Cicero attacks his opponent and presses him hard, in the passage as altered he would merely have pointed out a fact. The same thing results if you alter the turn of the passage in Demosthenes. Again did not Sallust when speaking against Cicero himself address his exordium to him and not to the judge? In fact he actually opens with the words “I should feel deeply injured by your reflexions on my character, Marcus Tullius,” wherein he followed the precedent set by Cicero in his speech against Catiline where he opens with the words “How long will you continue to abuse our patience?” [69] Finally to remove all reason for feeling surprise at the employment of apostrophe, Cicero in his defence of Scaurus,¹³ on a charge of bribery (the speech is to be found in his Notebooks; for he defended him twice) actually introduces an imaginary person speaking on behalf of the accused, while in his pro Rahirio and his speech in defence of this same Scaurus on a charge of extortion he [p. 45] employs illustrations, and in the pro Cluentio, as I have already pointed out, introduces division into heads. [70] Still such artifices, although they may be employed at times to good effect, are not to be indulged in indiscriminately, but only when there is strong reason for breaking the rule. The same remark applies to simile (which must however be brief), metaphor and other tropes, all of which are forbidden by our cautious and pedantic teachers of rhetoric, but which we shall none the less occasionally employ, unless indeed we are to disapprove of the magnificent example of irony in the pro Ligario to which I have already referred a few pages back. [71] The rhetoricians have however been nearer the truth in their censure of certain other faults that may occur in the exordium. The stock exordium which can be suited to a number of different cases they style vulgar; it is an unpopular form but can sometimes be effectively employed and has often been adopted by some of the greatest orators. The exordium which might equally well be used by our opponent, they style common. That which our opponent can turn to his own advantage, they call interchangeable, that which is irrelevant to the case, detached, and that which is drawn from some other speech, transferred. In addition to these they censure others as long and others as contrary to rule. Most of these faults are however not peculiar to the exordinum, but may be found in any or every portion of a speech.

[72] Such are the rules for the exordium, wherever it is employed. It may however sometimes be dispensed with. For occasionally it is superfluous, if the judge has been sufficiently prepared for our speech without it or if the case is such as to render [p. 47] such preparation unnecessary. Aristotle¹⁴ indeed says that with good judges the exordium is entirely unnecessary. Sometimes however it is impossible to employ it, even if we desire to do so, when, for instance, the judge is much occupied, when time is short or superior authority forces us to embark upon the subject right away. [73] On the other hand it is at times possible to give the force of an exordium to other portions of the speech. For instance we may ask the judges in the course of our statement of the facts or of our arguments to give us their best attention and good-will, a proceeding which Prodicus recommended as a means of wakening them when they begin to nod. A good example is the following:¹⁵ [74] “Gaius Varenus, he who was killed by the slaves of Ancharius—I beg you, gentlemen, to give me your best attention at this point.” Further if the case involves a number of different matters, each section must be prefaced with a short introduction, such as “Listen now to what follows,” or “I now pass to the next point.” Even in the proof there are many passages which perform the same function as an exordium, such as the passage in the pro Cluentio¹⁶ where Cicero introduces an attack on the censors and in the pro Murena¹⁷ when he apologises to Servius. But the practice is too common to need illustration.

[76] However on all occasions when we have employed the exordium, whether we intend to pass to the statement of facts or direct to the proof, our intention should be mentioned at the conclusion of the introduction, with the result that the transition to what follows will be smooth and easy. [77] There is indeed a pedantic and childish affectation in vogue in the schools of [p. 49] marking the transition by some epigram and seeking to win applause by this feat of legerdemain. Ovid is given to this form of affectation in his Metamorphoses, but there is some excuse for him owing to the fact that he is compelled to weld together subjects of the most diverse nature so as to form a continuous whole. [78] But what necessity is there for an orator to gloss over his transitions or to attempt to deceive the judge, who requires on the contrary to be warned to give his attention to the sequence of the various portions of the speech? For instance the first part of our statement of the facts will be wasted, if the judge does not realise that we have reached that stage. [79] Therefore, although we should not be too abrupt in passing to our statement of facts, it is best to do nothing to conceal our transition. Indeed, if the statement of fact on which we are about to embark is somewhat long and complicated, we shall do well to prepare the judge for it, as Cicero often does, most notably in the following passage:¹⁸ “The introduction to my exposition of this point will be rather longer than usual, but I beg you, gentlemen, not to take it ill. For if you get a firm grasp of the beginning, you will find it much easier to follow what comes last.” This is practically all that I can find to say on the subject of the exordium.

II. It is a most natural and frequently necessary proceeding, that after preparing the mind of the judge in the manner described above we should indicate the nature of the subject on which he will have to give judgment: that is the statement of facts. [2] In dealing with this question I shall deliberately pass over the divisions made by certain writers, who make too many classes and err on the side of subtlety. For [p. 51] they demand an explanation dealing not only with the facts of the case which is before the court, but with the person involved (as in the sentence,¹⁹ “Marcus Lollius Palicanus, a Picentine of humble birth, a man gifted with loquacity rather than eloquence”) or of the place where an incident occurred (as in the sentence²⁰ “Lampsacus, gentlemen, is a town situated on the Hellespont”), or of the time at which something occurred (as in the verse²¹

“In early spring, when on the mountains hoar
The snows dissolve),
”

or of the causes of an occurrence, such as the historians are so fond of setting forth, when they explain the origin of a war, a rebellion or a pestilence. Further they style some statements of fact “complete,” and others “incomplete, [3] ” a distinction which is self-evident. To this they add that our explanation may refer to the past (which is of course the commonest form), the present (for which compare Cicero's²² remarks about the excitement caused among the friends of Chrysogonus when his name was mentioned), or of the future (a form permissible only to prophets): for hypotyposis or picturesque description cannot be regarded as a statement of facts. [4] However let us pass to matters of more importance.

The majority regard the statement of facts as being indispensable: but there are many considerations which show that this view is erroneous. In the first place there are some cases which are so brief, that they require only a brief summary rather than a full statement of the facts. [5] This may apply to both parties to a suit, as for instance in cases where there is no necessity for explanation or where the facts are [p. 53] admitted and the whole question turns on a point of law, as it so often does in the centumviral court, as for example when we discuss, whether the heir of a woman who has died intestate should be her son or brother, or whether puberty is to be reckoned by age or by physical development. The same situation arises also in cases where the facts admit of full statement, but are well known to the judge or have been correctly set forth by a previous speaker. [6] Sometimes again the statement of facts can be dispensed with only by one party, who is generally the plaintiff, either because it is sufficient for him to make a simple summary of his case or because it is more expedient for him to do so. It may, for instance, suffice to say, “I claim repayment of a certain sum of money which was lent on certain conditions” or “I claim a legacy in accordance with the terms of the will.” It is for the other party to explain why these sums are not due to the plaintiff. [7] Again it is sometimes sufficient and expedient to summarise a case in one sentence such as “I say that Horatius killed his sister.” For the judge will understand the whole charge from this simple affirmation: the sequence of events and the motive for the deed will be matters for the defence to expound. [8] On the other hand in some cases the accused may dispense with the statement of facts, when for instance the charge can neither be denied nor palliated, but turns solely on some point of law: the following case will illustrate my meaning. A man who has stolen from a temple money belonging to a private individual is accused of sacrilege: in such a case a confession will be more seemly than a full statement of facts: “We do not deny that the [p. 55] money was taken from the temple; but the accuser is bringing a false accusation in charging my client with sacrilege, since the money was not consecrated, but private property: it is for you to decide whether under these circumstances sacrilege has been committed.”

[9] While however I think that there are occasional cases where the statement of facts may be dispensed with, I disagree with those who say that there is no statement of facts when the accused simply denies the charge. This opinion is shared by Cornelius Celsus who holds that most cases of murder and all of bribery and extortion fall into this class. [10] For he thinks that the only statement of facts is that which gives a general account of the charge before the court. Yet he himself acknowledges that Cicero employed the statement of facts in his defence of Rabirius Postumus, in spite of the fact that Cicero denies that any money came into the hands of Rabirius (and this was the question at issue) and gives no explanations relating to the actual charge in his statement of facts. [11] For my part I follow the very highest authorities in holding that there are two forms of statement of facts in forensic speeches, the one expounding the facts of the case itself, the other setting forth facts which have a bearing on the case. [12] I agree that a sentence such as “I did not kill the man” does not amount to a statement of facts: but there will be a statement of facts, occasionally, too, a long one, in answer to the arguments put forward by the accuser: it will deal with the past life of the accused, with the causes which have brought an innocent man into peril, and other circumstances such as show the charge to be incredible. [13] For the [p. 57] accuser does not merely say “You killed him,” but sets forth the facts proving his assertion: tragedy will provide an example, where Teucer accuses Ulysses of murdering Ajax, and states that he was found in a lonely place near the lifeless body of his enemy with a blood-stained sword in his hands. To this Ulysses does not merely reply that he did not do the deed, but adds that he had no quarrel with Ajax, the contest between them having been concerned solely with the winning of renown: he then goes on to say how he came to be in the lonely place, how he found Ajax lying lifeless and drew the sword from the wound. Then follow arguments based on these facts. [14] But even when the accuser says “You were found on the spot where your enemy was killed” and the accused says “I was not,” a statement of facts is involved; for he must say where he was. Consequently cases of bribery and extortion will require as many statements of this kind as there are charges: the charges themselves will be denied, but it will be necessary to counter the arguments of the accuser either singly or all together by setting forth the facts in quite a different light. [15] Is it, I ask you, irrelevant for one accused of bribery to set forth his parentage, his past life and the services on which he relied for success in his candidature? And if a man is indicted for extortion, will it not be to his advantage to set forth not merely his past record, but also the reasons which have made the whole province or the accuser or a witness hostile to himself? [16] If these are not statements of facts, neither is the first portion of Cicero's²³ defence of Cluentius, beginning with the words “Aulus Cluentius Habitus.” For there he says nothing about the charge [p. 59] of poisoning, but confines himself entirely to setting forth the reasons for the hostility of Cluentius' mother to her son. [17] There are also statements which do not set forth the facts of the case itself, but facts which are none the less relevant to the case: the speaker's purpose may be to illustrate the case by some parallel, as in the passage in the Verrines²⁴ about Lucius Domitius who crucified a shepherd because he admitted that he had used a hunting spear to kill the boar which he had brought him as a present; [18] or he may desire to dispel some charge that is irrelevant to the case as in the passage of the speech for Rabirius Postumus,²⁵ which runs as follows: “For when he came to Alexandria, gentlemen, the only means of saving his money which the king suggested to Postumus was that he should take charge of the royal household and act as a kind of steward.” Or the orator may desire to heighten the effect of his charges, as Cicero²⁶ does in his description of the journey of Verres.

[19] Sometimes a fictitious statement is employed either to stir the emotions of the judges, as in that passage of the proo Roscio Amerino²⁷ dealing with Chrysogonus to which I referred just recently, or to entertain them with a show of wit, as in the passage of the pro Cluentio²⁸ describing the brothers Caepasius: sometimes again a digression may be introduced to add beauty to the speech, as in the passage about Proserpine in the Verrines,²⁹ beginning “It was here that a mother is once said to have sought her daughter.” All these examples serve to show that he who denies a charge may not necessarily refrain from stating, but may actually state that very fact which he denies.

[p. 61] [20] Even the assertion which I made above to the effect that a statement of facts familiar to the judge is superfluous, is not to be taken too literally. My meaning is that it may be dispensed with, if the judge knows not merely what has been done, but takes a view of the facts which is favourable to our case. [21] For the purpose of the statement of facts is not merely to instruct, but rather to persuade the judge. Therefore, when we desire to influence him in some way or other, although he may require no instruction, we shall preface our statement with some such remarks as these: “I know that you are aware of the general nature of the case, but I trust you will not take it ill if I ask you to consider each point in detail.” [22] At times again we may pretend that we are repeating the facts for the benefit of some new member of the jury,³⁰ at times that we do so with a view to letting every bystander as well realise the gross unfairness of our opponents' assertions. Under these circumstances our statement must be diversified by a free use of figures to avoid wearying those to whom the facts are familiar: we shall for instance use phrases such as “You remember,” “It may perhaps be superfluous to dwell on this point,” “But why should I say more, as you are well acquainted with the fact?”, “You are not ignorant how this matter stands” and so on. [23] Besides, if we are always to regard as superfluous a statement of facts made before a judge who is familiar with the case, we may even go so far as to regard it as superfluous at times to plead the case at all.

[24] There is a further question which is still more frequently raised, as to whether the statement of facts should always follow immediately on the [p. 63] exordium. Those who hold that it should always do so must be admitted to have some reason on their side. For since the purpose of the exordium is to make the judge more favourably disposed and more attentive to our case and more amenable to instruction, and since the proof cannot be brought forward until the facts of the case are known, it seems right that the judge should be instructed in the facts without delay. [25] But the practice may be altered by circumstances, unless it is contended that Cicero in his magnificent published defence of Milo delayed his statement too long by placing three questions before it; or unless it is argued that, if it bad been held to be impermissible to defend a man at all who acknowledged that he had killed another, or if Milo's case had already been prejudged and condemnation passed by the senate, or if Gnaeus Pompeius, who in addition to exerting his influence in other ways had surrounded the court with an armed guard, had been regarded with apprehension as hostile to the accused, it would have served his case to set forth how Clodius had set an ambush for Milo. [26] These three questions, then, served the purpose of an exordium, since they all of them were designed to prepare the minds of the judges. Again in the pro Vareno Cicero delayed his statement of facts until he had first rebutted certain allegations put forward by the prosecution. This may be done with advantage whenever we have not merely to rebut the charge, but to turn the tables on our opponents: thus after first rebutting the charge, we make our statement of facts the opening of an incrimination of the other party just as in actual fighting we are most [p. 65] concerned to parry our adversary's blows before we strike him ourselves. [27] There will also not infrequently be certain cases, in which it is easy to rebut the charge that is under trial, but the conduct of which is hampered by the past life of our client and the many and serious crimes which he has committed. We must dispose of these first, in order that the judge may give a favourable hearing to our defence of the actual facts which form the question at issue. For example, if we have to defend Marcus Caelius, the best course for his advocate to adopt will be to meet the imputations of luxury, wantonness and immorality which are made against him before we proceed to the actual charge of poisoning. It is with these points that the speech of Cicero in his defence is entirely concerned. Is he then to go on to make a statement about the property of Palla and explain the whole question of rioting, a charge against which Caelius has already defended himself in the speech which he delivered on his own behalf? [28] We however are the victims of the practice of the schools in accordance with which certain points or themes as we call them are put forward for discussion, outside which our refutation must not go, and consequently a statement of facts always follows the exordium. It is this too that leads declaimers to take the liberty of inserting a statement of facts even when they speak second for their side. [29] For when they speak for the prosecution they introduce both a statement of facts, as if they were speaking first, and a refutation of the arguments for the defence, as if they were replying: and they are right in so doing. For since declamation is merely an exercise in forensic pleading, why should they not qualify themselves to [p. 67] speak either first or second³¹? Those however who do not understand the reason for such a practice, think that when they appear in the courts they should stick to the custom of the schools with which they have become familiar. [30] But even scholastic rhetoricians occasionally substitute a brief summary for the full statement of the facts. For what statement of the case can be made when a wife is accusing a jealous husband of maltreating her, or a father is indicting his son turned Cynic before the censors for indecent behaviour³²? In both cases the charge can be sufficiently indicated by one word placed in any part of the speech. But enough of these points.

[31] I will now proceed to the method to be adopted in making our statement of facts. The statement of facts consists in the persuasive exposition of that which either has been done, or is supposed to have been done, or, to quote the definition given by Apollodorus, is a speech instructing the audience as to the nature of the case in dispute. Most writers, more especially those of the Isocratean school, hold that it should be lucid, brief and plausible (for it is of no importance if we substitute clear for lucid, or credible or probable for plausible). [32] I agree with this classification of its qualities, although Aristotle³³ disagrees with Isocrates on one point, and pours scorn on his injunction to be brief, as though it were necessary that a statement should be either long or short and it were impossible to hit the happy mean. The followers of Theodorus on the other hand recognise only plausibility on the ground that it is not always expedient that our exposition should be either short or clear. [33] It will be necessary [p. 69] therefore for me to devote some care to the differentiation of the various features of this portion of a speech, in order that I may show under what circumstances each is specially useful.

The statement will be either wholly in our favour or wholly in that of our opponent or a mixture of both. If it is entirely in our own favour, we may rest content with the three qualities just mentioned, the result of which is to make it easier for the judge to understand, remember and believe what we say. [34] Now I should regret that anyone should censure my conduct in suggesting that a statement which is wholly in our favour should be plausible, when as a matter of fact it is true. There are many things which are true, but scarcely credible, just as there are many things which are plausible though false. It will therefore require just as much exertion on our part to make the judge believe what we say when it is true as it will when it is fictitious. [35] These good qualities, which I have mentioned above, do not indeed cease to be virtues in other portions of the speech; for it is our duty to avoid obscurity in every part of our pleading, to preserve due proportion throughout and to say nothing save what is likely to win belief. But they require special observance in that portion of the speech which is the first from which the judge can learn the nature of the case: if at this stage of the proceedings he fails to understand, remember or believe what we say, our labour is but lost in the remainder of the speech.

[36] We shall achieve lucidity and clearness in our statement of facts, first by setting forth our story in words which are appropriate, significant and free from any taint of meanness, but not on the other [p. 71] hand farfetched or unusual, and secondly by giving a distinct account of facts, persons, times, places and causes, while our delivery must be adapted to our matter, so that the judge will take in what we say with the utmost readiness. [37] This latter virtue is disregarded by the majority of speakers who are used to the noisy applause of a large audience, whether it be a chance gathering or an assembly of claqueurs, and consequently are unnerved by the attentive silence of the courts. They feel that they have fallen short of eloquence, if they do not make everything echo with noise and clamour; they think that to state a matter simply is suited only to everyday speech such as falls within the capacity of any uneducated man, while all the time it is hard to say whether they are less willing or less capable of performing a task which they despise on account of its supposed easiness. [38] For even when they have tried everything, they will never find anything more difficult in the whole range of oratory than that which, once heard, all think they would have said,— a delusion due to the fact that they regard what has been said as having no merit save that of truth. But it is just when an orator gives the impression of absolute truth that he is speaking best. [39] As it is, when such persons as these get a fair field for stating their case, they select this as the precise occasion for affected modulations of the voice, throwing back their heads, thumping their sides and indulging in every kind of extravagance of statement, language and style. As a result, while the speech, from its very monstrosity, meets with applause, the case remains unintelligible. However, let us pass to another subject; my aim is to win favour for [p. 73] pointing out the right road rather than to give offence by rebuking such perversity.

[40] The statement of facts will be brief, if in the first place we start at that point of the case at which it begins to concern the judge, secondly avoid irrelevance, and finally cut out everything the removal of which neither hampers the activities of the judge nor harms our own case. [41] For frequently conciseness of detail is not inconsistent with length in the whole. Take for instance such a statement as the following: “I came to the harbour, I saw a ship, I asked the cost of a passage, the price was agreed, I went on board, the anchor was weighed, we loosed our cable and set out.” Nothing could be terser than these assertions, but it would have been quite sufficient to say “I sailed from the harbour.” And whenever the conclusion gives a sufficiently clear idea of the premisses, we must be content with having given a hint which will enable our audience to understand what we have left unsaid. [42] Consequently when it is possible to say “I have a young son,” it is quite superfluous to say, “Being desirous of children I took a wife, a son was born whom I acknowledged and reared and brought up to manhood.” For this reason some of the Greeks draw a distinction between a concise statement (the word they use is σύντομος) and a brief statement, the former being free from all superfluous matter, while the latter may conceivably omit something that requires to be stated. [43] Personally, when I use the word brevity, I mean not saying less, but not saying more than occasion demands. As for repetitions and tautologies and diffuseness, which some writers of textbooks tell us we must avoid, I pass them by; [p. 75] they are faults which we should shun for other reasons beside our desire for brevity. [44] But we must be equally on our guard against the obscurity which results from excessive abridgment, and it is better to say a little more than is necessary than a little less. For though a diffuse irrelevance is tedious, the omission of what is necessary is positively dangerous. [45] We must therefore avoid even tile famous terseness of Sallust (though in his case of course it is a merit), and shun all abruptness of speech, since a style which presents no difficulty to a leisurely reader, flies past a hearer and will not stay to be looked at again; and whereas the reader is almost always a man of learning, the judge often comes to his panel from the country side and is expected to give a decision on what he can understand. Consequently we must aim, perhaps everywhere, but above all in our statement of facts, at striking the happy mean in our language, and the happy mean may be defined as saving just what is necessary and just what is sufficient. [46] By “just what is necessary” I mean not the bare minimum necessary to convey our meaning; for our brevity must not be devoid of elegance, without which it would be merely uncouth: pleasure beguiles the attention, and that which delights us ever seems less long, just as a picturesque and easy journey tires us less for all its length than a difficult short cut through an arid waste. [47] And I would never carry my desire for brevity so far as to refuse admission to details which may contribute to the plausibility of our narrative. Simplify and curtail your statement of facts in every direction and you will turn it into something more like a confession. Moreover, the [p. 77] circumstances of the case will often necessitate a long statement of facts, in which case, as I have already enjoined, the judge should be prepared for it at the conclusion of the exordium. Next we must put forth all our art either to shorten it or to render it less tedious. [48] We must do what we can to make it less long by postponing some points, taking care however to mention what it is that we propose to postpone. Take the following as an example. “As regards his motives for killing him, his accomplices and the manner in which he disposed his ambush, I will speak when I come to the proof. [49] ” Some things indeed may be omitted altogether from our marshalling of the facts, witness the following example from Cicero,³⁴ “Fulcinius died; there are many circumstances which attended that event, but as they have little bearing on this case, I shall pass them by.” Division of our statement into its various heads is another method of avoiding tedium: for example, “I will tell you first what preceded this affair, then what occurred in its actual development, and finally you shall hear its sequel.” [50] Such a division will give the impression of three short statements rather than of one long one. At times it will be well to interrupt our narrative by interjecting some brief remark like the following: “You have heard what happened before: now learn what follows.” The judge will be refreshed by the fact that we have brought our previous remarks to a close and will prepare himself for what may be regarded as a fresh start. [51] If however after employing all these artifices our array of facts is still long, it will not be without advantage to append a summary at the end of it as a reminder: Cicero does this even at the close of a [p. 79] brief statement of facts in the pro Ligario:³⁵ “To this day, Caesar, Quintus Ligarius is free from all blame: he left his home not merely without the least intention of joining in any war, but when there was not the least suspicion of any war etc.”

[52] The statement of fact will be credible, if in the first place we take care to say nothing contrary to nature, secondly if we assign reasons and motives for the facts on which the inquiry turns (it is unnecessary to do so with the subsidiary facts as well), and if we make the characters of the actors in keeping with the facts we desire to be believed: we shall for instance represent a person accused of theft as covetous, accused of adultery as lustful, accused of homicide as rash, or attribute the opposite qualities to these persons if we are defending them: further we must do the same with place, time and the like. [53] It is also possible to treat the subject in such a way as to give it an air of credibility, as is done in comedy and farce. For some things have such natural sequence and coherence that, if only the first portion of your statement is satisfactory, the judge will himself anticipate what you have got to say in the later part. [54] It will also be useful to scatter some hints of our proofs here and there, but in such a way that it is never forgotten that we are making a statement of facts and not a proof. Sometimes, however, we must also support our assertions by a certain amount of argument, though this must be short and simple: for instance in a case of poisoning we shall say, “He was perfectly well when he drank, he fell suddenly to the ground, and blackness and swelling of the body immediately supervened.” [55] The same result is produced by [p. 81] preparatory remarks such as the following: “The accused is a strong man and was fully armed, while his opponents were weak, unarmed and suspecting no evil.” We may in fact touch on everything that we propose to produce in our proof; while making our statement of facts, as for instance points connected with persons, cause, place, time, the instrument and occasion employed. [56] Sometimes, when this resource is unavailable, we may even confess that the charge, though true, is scarcely credible, and that therefore it must be regarded as all the more atrocious; that we do not know how the deed was done or why, that we are filled with amazement, but will prove our case. [57] The best kind of preparatory remarks are those which cannot be recognised as such: Cicero,³⁶ for instance, is extraordinarily happy in the way he mentions in advance everything that shows that Clodius lay in wait for Milo and not Milo for Clodius. The most effective stroke of all is his cunning feint of simplicity: “Milo, on the other hand, having been in the senate all day till the house rose, went home, changed his shoes and clothes, and waited for a short time, while his wife was getting ready, as is the way with women.” [58] What an absence of haste and premeditation this gives to Milo's proceedings. And the great orator secures this effect not merely by producing facts which indicate the slow and tardy nature of Milo's departure, but by the use of the ordinary language of everyday speech and a careful concealment of his art. Had he spoken otherwise, his words would by their very sound have warned the judge to keep an eye on the advocate. [59] The majority of readers regard this passage as lacking in distinction, but this very fact merely serves [p. 83] to show how the art which is scarce detected by a reader succeeded in hoodwinking the judge. It is qualities of this kind that make the statement of facts credible. [60] If a student requires to be told that we must avoid contradiction and inconsistency in our statement of facts, it will be vain to attempt to instruct him on the remaining points, although some writers of text-books produce this precept as if it were a mystery only discovered by their own personal penetration.

[61] To these three qualities some add magnificence of diction or μεγαλοπρέπεια as they call it this quality is not, however, suitable to all cases. For what place has language that rises above the ordinary level in the majority of private suits dealing with loans, letting and hiring and interdicts? Nor yet is it always expedient, as may be inferred from the passage just cited from the pro Milone. [62] We must remember, too, that there are many cases in which confession, excuse or modification are necessary with regard to our statements: and magnificence is a quality wholly out of keeping with such procedure. Magnificence of diction is therefore no more specially appropriate to the statement of facts than language calculated to excite pity or hatred, or characterised by dignity, charm or wit. Each of these qualities is admirable in its proper place, but none can be regarded as the peculiar and inalienable property of this portion of the speech.

[63] Theodectes asserts that the statement of facts should not merely be magnificent, but attractive in style. But this quality again though suitable enough to the statement of facts, is equally so in other portions of the speech. There are others [p. 85] who add palpability, which the Greeks call ἐνάργεια. [64] And I will not conceal the fact that Cicero³⁷ himself holds that more qualities are required. For in addition to demanding that it should be plain, brief and credible, he would have it clear, characteristic and worthy of the occasion. But everything in a speech should be characteristic and worthy of the occasion as far as possible. Palpalility, as far as I understand the term, is no doubt a great virtue, when a truth requires not merely to be told, but to some extent obtruded, still it may be included under lucidity. Some, however, regard this quality as actually being injurious at times, on the ground that in certain cases it is desirable to obscure the truth. This contention is, however, absurd. [65] For he who desires to obscure the situation, will state what is false in lieu of the truth, but must still strive to secure an appearance of palpability for the facts which he narrates.

[66] A chance turn of the discussion has led us to a difficult type of statement of facts. I will therefore proceed to speak of those in which the facts are against us. Under such circumstances some have held that we should omit the statement of facts altogether. Nothing can be more easy, except perhaps to throw up the case altogether. But suppose you undertake a case of this kind with some good reason. It is surely the worst art to admit the badness of the case by keeping silence. We can hardly hope that the judge will be so dense as to give a decision in favour of a case which he knows we were unwilling to place before him. [67] I do not of course deny that just as there may be some points which you should deny in your statement [p. 87] of facts, others which you should add, and yet again others that you should alter, so there may be some which you should pass over in silence. But still only those points should be passed over which we ought and are at liberty to treat in this way. This is sometimes done for the sake of brevity, as in the phrase “He replied as he thought fit.” [68] We must therefore distinguish between case and case. In those where there is no question of guilt but only of law, we may, even though the facts he against us, admit the truth. “He took money from the temple, but it was private property, and therefore he is not guilty of sacrilege. He abducted a maiden, but the father³⁸ can have no option as to his fate. [69] He assaulted a freeborn boy, and the latter hanged himself, but that is no reason for the author of the assault to be awarded capital punishment as having caused his death; he will instead pay 10,000 sesterces, the fine imposed by law for such a crime.” But even in making these admissions we may to some extent lessen the odium caused by the statement of our opponent. For even our slaves extenuate their own faults. [70] In some cases, too, we may mitigate a bad impression by words which avoid the appearance of a statement of facts. We may say, for instance, “He did not, as our opponent asserts, enter the temple with the deliberate intention of theft nor seek a favourable occasion for the purpose, but was led astray by the opportunity, the absence of custodians, and the sight of the money (and money has always an undue influence on the mind of man), and so yielded to temptation. What does that matter? He committed the offence and is a thief. It is [p. 89] useless to defend an act to the punishment of which we can raise no objection.” [71] Again we may sometimes go near condemning our client ourselves. “Do you wish me to say that you were under the influence of wine? that you made a mistake? that the darkness deceived you? That may be true. But still you committed an assault on a freeborn boy; pay your 10,000 sesterces.” Sometimes we may fortify our case in advance by a preliminary summary, from which we proceed to the full statement of facts. [72] All the evidence points to the guilt of three sons who had conspired against their father. After drawing lots they entered their father's bedroom while he slept, one following the other in the order predetermined and each armed with a sword. None of them had the heart to kill him, he woke and they confessed all. [73] If, however, the father, who has divided his estate among them and is defending them when accused of parricide, pleads as follows: “As regards my defence against the law, it suffices to point out, that these young men are charged with parricide in spite of the fact that their father still lives and is actually appearing on behalf of his children. What need is there for me to set forth the facts as they occurred since the law does not apply to them? But if you desire me to confess my own guilt in the matter, I was a hard father to them and watched over my estate, which would have been better managed by them, with miserly tenacity.” [74] And if he then should add, “they were spurred to attempt the crime by others who had more indulgent fathers; but their real feelings towards their father have been proved by the result; they could not bring themselves to [p. 91] kill him. It would have been quite unnecessary for them to take an oath to kill him, if they had really had the heart to do the deed, while the only explanation of their drawing lots is that each of them wished to avoid the commission of the crime.” If such were his pleading, all these pleas would, such as they are, find the judges all the more disposed to mercy, since the brief defence offered in the first summary statement would have paved the way for them. [75] But if the question is whether an act has been committed or what its nature may be, even though everything be against us, how can we avoid a statement of facts without gross neglect of our case? The accuser has made a statement of facts facts, and has done so not merely in such a way as to indicate what was done, but has added such comments as might excite strong prejudice against us and made the facts seem worse than they are by the language which he has used. On the top of this have come the proofs, while the peroration has kindled the indignation of the judges and left them full of anger against us. [76] The judge naturally waits to hear what we can state in our behalf. If we make no statement, he cannot help believing that our opponent's assertions are correct and that their tone represents the truth. What are we to do then? Are we to restate the same facts? Yes, if the question turns on the nature of the act, as it will if there is no doubt about the commission, but we must restate them in a different way, alleging other motives and another purpose and putting a different complexion on the case. [77] Some imputations we may mitigate by the use of other words; luxury will be softened down into generosity, [p. 93] avarice into economy, carelessness into simplicity, and I shall seek to win a certain amount of favour or pity by look, voice and attitude. Sometimes a frank confession is of itself sufficient to move the jury to tears. And I should like to ask those who differ from me whether they are prepared to defend what they have refused to state, or no. [78] For if they refuse either to defend or to state the facts, they will be giving away their whole case. If, on the other hand, they do propose to put in a defence, they must at least, as a rule, set forth what they intend to justify. Why then not state fully facts which can be got rid of and must in fact be pointed out to make that possible? [79] Or again what difference is there between a proof and a statement of facts save that the latter is a proof put forward in continuous form, while a proof is a verification of the facts as put forward in the statement? Let us consider therefore whether under such circumstances the statement should not be somewhat longer and fuller than usual, since we shall require to make some preliminary remarks and to introduce certain special arguments (note that I say arguments, and not argumentation), while it will add greatly to the force of our defence if we assert not once nor twice that we shall prove what we say is true and that the significance of the facts cannot be brought out by one opening statement, bidding them wait, delay forming their opinions and hope for the best. [80] Finally it is important to include in our statement anything that can be given a different complexion from that put upon it by our opponent. Otherwise even an exordium will be superfluous in a case of this kind. For what is its purpose if [p. 95] not to make the judge better disposed for the investigation of the case? And yet it will be agreed that the exordium is never more useful than when it is necessary to divert the judge from some prejudice that he has formed against us. [81] Conjectural³⁹ cases, on the other hand—that is to say questions of fact—require a statement, which will more often deal with the circumstances from which a knowledge of the point at issue may be derived than with the actual point which is under trial. When the accuser states these circumstances in such a manner as to throw suspicion on the case for the defence, and the accused has consequently to dispel that suspicion, the facts must be presented to the judge in quite a different light by the latter. [82] But, it may be urged, some arguments are strong when put forward in bulk, but far less effective when employed separately. My answer is that this remark does not affect the question whether we ought to make a statement of fact, but concerns the question how it should be made. For what is there to prevent us from amassing and producing a number of arguments in the statement, if that is likely to help our cause? Or from subdividing our statement of facts and appending the proofs to their respective sections and so passing on to what remains to be said? [83] Neither do I agree with those who assert that the order of our statement of facts should always follow the actual order of events, but have a preference for adopting the order which I consider most suitable. For this purpose we can employ a variety of figures. Sometimes, when we bring up a point in a place better suited to our purpose, we may pretend that it had escaped our notice; [p. 97] occasionally, too, we may inform the judge that we shall adhere to the natural order for the remainder of our statement, since by so doing we shall make our case clearer, while at times after stating a fact, we may append the causes which preceded it. [84] For there is no single law or fixed rule governing the method of defence. We must consider what is most advantageous in the circumstances and nature of the case, and treat the wound as its nature dictates, dressing at once or, if the dressing can be delayed, applying a temporary bandage. [85] Again I do not regard it as a crime to repeat a statement of a fact more than once, as Cicero does in the pro Cluentio. It is not merely permissible, but sometimes necessary, as in trials for extortion and all complicated cases; and only a lunatic will allow a superstitious observance of rules to lead him counter to the interests of his case. [86] The reason for placing the statement of facts before the proof is to prevent the judge from being ignorant of the question at issue. Why then, if each individual point has to be proved or refuted, should not each individual point be stated as well? If my own experience may be trusted, I know that I have followed this practice in the courts, whenever occasion demanded it, and my procedure has been approved both by learned authorities and the judges themselves, while the duty of setting forth the case was generally entrusted to me. I am not boasting, for there are many with whom I have been associated as counsel, who can bring me to book if I lie. [87] On the other hand this is no reason for not following the order of events as a general rule. Indeed inversion of the order has at times a most unhappy effect, as for example if you should mention [p. 99] first that a woman has brought forth and then that she has conceived, or that a will has been read and then that it has been signed. In such cases, if you should happen to have mentioned the later incident, it is better to say nothing about the former, which must quite obviously have come first.

[88] Sometimes, too, we get false statements of facts; these, as far as actual pleading in the courts is concerned, fall into two classes. In the first case the statement depends on external support; Publius Clodius, for instance, relied on his witnesses when he stated that he was at Interamna on the night when he committed abominable sacrilege at Rome. The other has to be supported by the speaker's native talent, and sometimes consists simply in an assumption of modesty, which is, I imagine, the reason why it is called a gloss,⁴⁰ while at other times it will be concerned with the question at issue. [89] Whichever of these two forms we employ, we must take care, first that our fiction is within the bounds of possibility, secondly that it is consistent with the persons, dates and places involved and thirdly that it presents a character and sequence that are not beyond belief: if possible, it should be connected with something that is admittedly true and should be supported by some argument that forms part of the actual case. For if we draw our fictions entirely from circumstances lying outside the case, the liberty which we have taken in resorting to falsehood will stand revealed. [90] Above all we must see that we do not contradict ourselves, a slip which is far from rare on the part of spinners of fiction: for some things may put a most favourable complexion on portions of our case, and yet fail to agree as a whole. Further, what we say [p. 101] must not be at variance with the admitted truth. Even in the schools, if we desire a gloss, we must not look for it outside the facts laid down by our theme. [91] In either case the orator should bear clearly in mind throughout his whole speech what the fiction is to which he has committed himself, since we are apt to forget our falsehoods, and there is no doubt about the truth of the proverb that a liar should have a good memory. [92] But whereas, if the question turns on some act of our own, we must make one statement and stick to it, if it turns on an act committed by others, we may cast suspicion on a number of different points. In certain controversial themes of the schools, however, in which it is assumed that we have put a question and received no reply, we are at liberty to enumerate all the possible answers that might have been given. [93] But we must remember only to invent such things as cannot be checked by evidence: I refer to occasions when we make our own minds speak (and we are the only persons who are in their secret) or put words in the mouth of the dead (for what they say is not liable to contradiction) or again in the mouth of someone whose interests are identical with ours (for he will not contradict), or finally in the mouth of our opponent (for he will not be believed if he does deny). [94] Glosses drawn from dreams and superstitions have long since lost their value, owing to the very ease with which they can be invented. But it will avail us little to use glosses in a statement of fact, unless they are consistent throughout the whole of our speech, more especially as certain things can only be proved by persistent assertion. [95] Take for instance the case of the parasite who claims as his son a young man who has been [p. 103] thrice disinherited by a wealthy father and thrice restored to his own. He will be able to put forward as a gloss or plea that poverty was the reason why he exposed the child, that he assumed the role of a parasite because his son was in the house in question and, lastly, that the reason why the young man was thrice disinherited was simply that he was not the son of the man who disinherited him. [96] But unless every word that he utters reveals an ardent paternal affection, hatred for his wealthy opponent and anxiety on behalf of the youth, who will, he knows, be exposed to serious danger if he remains in the house where he is the victim of such dislike, he will be unable to avoid creating the suspicion that he has been suborned to bring the action.

[97] It sometimes happens in the controversial themes of the schools, though I doubt whether it could ever occur in the courts, that both sides employ the same gloss and support it on their own behalf. [98] An example of this may be found in the theme which runs as follows. “A wife has stated to her husband that her stepson has attempted to seduce her and that a time and place have been assigned for their meeting: the son has brought the same charge against his stepmother, with the exception that a different time and place are mentioned. The father finds the son in the place mentioned by the wife, and the wife in the place mentioned by the son. He divorces her, and then, as she says nothing in her own defence, disinherits the son.” No defence can be put forward for the son which is not also a defence of the stepmother. [99] However, what is common to both sides of the case will be stated, and then arguments will be drawn from a comparison of [p. 105] the characters of the two parties, from the order in which they laid information against each other and from the silence of the divorced wife. [100] Still we must not ignore the fact that there are some cases which do not admit of any form of gloss, but must be defended forthright. An example is provided by the case of the rich man who scourged the statue of a poor man who was his enemy, and was subsequently indicted for assault. Here no one can deny that the act was outrageous, but it may be possible to maintain that it is not punishable by law.

[101] If, however, part of the statement of facts tells in our favour and part against us, we must consider whether in view of the circumstances of the case the parts in question should be blent or kept apart. If the points which are damaging to our case be in the majority, the points which are in its favour will be swamped. Under those circumstances it will be best to keep them apart and, after setting forth and proving the points which help our case, to meet the rest by employing the remedies mentioned above. [102] If, on the other hand, it be the points in our favour which predominate, we may even blend them with the others, since thus the traitors in our camp will have less force. None the less these points, both good and bad, must not be set forth naked and helpless: those in our favour must be supported by some argument, and then reasons must be added why the points which tell against us should not be believed; since if we do not distinguish clearly between the two, it is to be feared that those which are favourable may suffer from their bad company.

[103] Further rules are laid down with regard to the [p. 107] statement of fact, forbidding us to indulge in digression, apostrophe or argumentation or to put our words into the mouths of others. Some even add that we should make no appeal to the passions. These rules should for the most part be observed, indeed they should never be infringed unless the circumstances absolutely demand it. [104] If our statement is to be clear and brief, almost anything can be justified sooner than digression. And if we do introduce a digression, it must always be short and of such a nature that we give the impression of having been forced from our proper course by some uncontrollable emotion. The passage in Cicero⁴¹ about the marriage of Sasia is a good example of this. [105] “What incredible wickedness in a woman! Unheard of in the history of mankind till she dared the sin! What unbridled and unrestrained lust, what amazing daring! One might have thought that, even if she had no regard for the vengeance of heaven and the opinion of man, she would at least have dreaded that night of all nights and those torches that lighted her to the bridal bed: that she would have shrunk in horror from the threshold of her chamber, from her daughter's room and the very walls that had witnessed her former marriage.” [106] As to addressing another in place of the judge, it may be a means of making a point with greater brevity and give it greater force. On this subject I hold the same view that I expressed in dealing with the exordium, as I do on the subject of impersonation. This artifice however is employed not only by Servius Sulpicius in his speech on behalf of Aufidia, when he cries “Am I to suppose that you were drowsed with sleep or weighed down by some [p. 109] heavy lethargy?” but by Cicero⁴² as well, when in a passage which, like the above, belongs to the statement of facts, in speaking of the ships' captains he says, “You will give so much to enter, etc.” [107] Again in the pro Clueniio⁴³ does not the conversation between Staienus and Bulbus conduce to speed and enhance the credibility of the statements ? In case it should be thought that Cicero did this without design (quite an incredible supposition in his case), I would point out that in the Partitiones⁴⁴ he lays it down that the statement of facts should be characterised by passages which will charm and excite admiration or expectation, and marked by unexpected turns, conversations between persons and appeals to every kind of emotion. [108] We shall, as I have already said, never argue points in the statement of facts, but we may sometimes introduce arguments, as for example Cicero does in the pro Ligario,⁴⁵ when he says that he ruled his province in such a way that it was to his interest that peace should continue. We shall sometimes also, if occasion demand, insert a brief defence of the facts in the statement and trace the reasons that led up to them. [109] For we must state our facts like advocates, not witnesses. A statement in its simplest form will run as follows, “Quintus Ligarius went out as legate to C. Considius.” But how will Cicero⁴⁶ put it ? “Quintus Ligarius,” he says, “set out for Africa as legate to Gaius Considius at a time when there was no thought of war.” And again elsewhere⁴⁷ [110] he says, “Not only not to war, but to a country where there was no thought of war.” And when the sense would have been sufficiently clear had he [p. 111] said no more than “Quintus Ligarius would not suffer himself to be entangled in any transaction,”⁴⁸ he adds “for he had his eyes fixed on home and wished to return to his own people.” Thus he made what he stated credible by giving a reason for it and at the same time coloured it with emotion.

[111] I am therefore all the more surprised at those who hold that there should be no appeal to the emotions in the statement of facts. If they were to say “Such appeals should be brief and not on the scale on which they are employed in tile peroration,” I should agree with them; for it is important that the statement should be expeditious. But why, while I am instructing the judge, should I refuse to move him as well? [112] Why should I not, if it is possible, obtain that effect at the very opening of the case which I am anxious to secure at its conclusion, more especially in view of the fact that I shall find the judge far more amenable to the cogency of my proof, if I have previously filled his mind with anger or pity? [113] Does not Cicero,⁴⁹ in his description of the scourging of a Roman citizen, in a few brief words stir all the emotions, not merely by describing the victim's position, the place where the outrage was committed and the nature of the punishment, but also by praising the courage with which he bore it? For he shows us a man of the highest character who, when beaten with rods, uttered not a moan nor an entreaty, but only cried that lie was a Roman citizen, thereby bringing shame on his oppressor and showing his confidence in the law. [114] Again does he not throughout the whole of his statement excite the warmest indignation at the misfortunes of Philodamus⁵⁰ and move [p. 113] us even to tears when he speaks of his punishment and describes, or rather shows us as in a picture, the father weeping for the death of his son and the son for the death of his father? [115] What can any peroration present that is more calculated to stir our pity? If you wait for the peroration to stir your hearer's emotions over circumstances which you have recorded unmoved in your statement of facts, your appeal will come too late. The judge is already familiar with them and hears their mention without turning a hair, since he was unstirred when they were first recounted to him. Once the habit of mind is formed, it is hard to change it.

[116] For my own part (for I will not conceal my opinion, though it rests rather on actual examples than on rules), I hold that the statement of fact more than any portion of the speech should be adorned with the utmost grace and charm. But much will depend on the nature of the subject which we have to set forth. [117] In slighter cases, such as are the majority of private suits, the decoration must be restrained and fit close to the subject, while the utmost care must be exercised in choice of words. The words which in our purple passages are swept along by the force of our eloquence and lost in the profusion of our language, must in cases such as these be clear and, as Zeno says, “steeped with meaning.” The rhythm should be unobtrusive, but as attractive as possible, [118] while the figures must neither be derived from poetry nor such as are contrary to current usage, though warranted by the authority of antiquity (for it is important that our language should be entirely normal), but should be designed to relieve tedium by their variety and should be frequently [p. 115] changed to relax the strain of attention. Thus we shall avoid repeating the same terminations and escape monotony of rhythm and a stereotyped turn of phrase. For the statement of facts lacks all the other allurements of style and, unless it is characterised by this kind of charm, will necessarily fall flat. [119] Moreover there is no portion of a speech at which the judge is more attentive, and consequently nothing that is well said is lost. And the judge is, for some reason or other, all the more ready to accept what charms his ear and is lured by pleasure to belief. [120] When on the other hand the subject is on a larger scale, we have a chance to excite horror by our narration of abominable wrongs or pity by a tale of woe: but we must do so in such a way as not to exhaust our stock of emotions on the spot, but merely to indicate our harrowing story in outline so that it may at once be clear what the completed picture is like to be. [121] Again I am far from disapproving of the introduction of some striking sentence designed to stimulate the judge's jaded palate. The best way of so doing is the interposition of a short sentence like the following: “Milo's slaves did what everyone would have wished his own slaves to do under similar circumstances”⁵¹: at times we may even be a little more daring and produce something like the following: “The mother-in-law wedded her son-in-law: there were no witnesses, none to sanction the union, and the omens were dark and sinister.”⁵² [122] If this was done in days when every speech was designed for practical purposes rather than display and the courts were far stricter than to-day, how much more should we do it now, when the passion for producing a [p. 117] thrill of pleasure has forced its way even into cases where a man's life or fortunes are in peril? I shall say later to what extent I think we should indulge popular taste in this respect: in the meantime I shall admit that some such indulgence is necessary. [123] A powerful effect may be created if to the actual facts of the case we add a plausible picture of what occurred, such as will make our audience feel as if they were actual eyewitnesses of the scene. Such is the description introduced by Marcus Caelius in his speech against Antonius. “For they found him lying prone in a drunken slumber, snoring with all the force of his lungs, and belching continually, while the most distinguished of his female companions sprawled over every couch, and the rest of the seraglio lay round in all directions. [124] They however perceived the approach of the enemy and, half-dead with terror, attempted to arouse Antonius, called him by name, heaved up his head, but all in vain, while one whispered endearing words into his ear, and another slapped him with some violence. At last he recognised the voice and touch of each and tried to embrace her who happened to be nearest. Once wakened he could not sleep, but was too drunk to keep awake, and so was bandied to and fro between sleeping and waking in the hands of his centurions and his paramours.” Could you find anything more plausible in imagination, more vehement in censure or more vivid in description?

[125] There is another point to which I must call attention, namely the credit which accrues to the statement of facts from the authority of the speaker. Now such authority should first and foremost be the reward of our manner of life, but may also be conferred [p. 119] by our style of eloquence. For the more dignified and serious our style, the greater will be the weight that it will lend to our assertions. [126] It is therefore specially important in this part of our speech to avoid anything suggestive of artful design, for the judge is never more on his guard than at this stage. Nothing must seem fictitious, nought betray anxiety; everything must seem to spring from the case itself rather than the art of the orator. [127] But our modern orators cannot endure this and imagine that their art is wasted unless it obtrudes itself, whereas as a matter of fact the moment it is detected it ceases to be art. We are the slaves of applause and think it the goal of all our effort. And so we betray to the judges what we wish to display to the bystanders.

[128] There is also a kind of repetition of the statement which the Greeks call ἐπιδιηγήσις. It belongs to declamation rather than forensic oratory, and was invented to enable the speaker (in view of the fact that the statement should be brief) to set forth his facts at greater length and with more profusion of ornament, as a means of exciting indignation or pity. I think that this should be done but rarely and that we should never go to the extent of repeating the statement in its entirety. For we can attain the same result by a repetition only of parts. Anyone, however, who desires to employ this form of repetition, should touch but lightly on the facts when making his statement and should content himself with merely indicating what was done, while promising to set forth how it was done more fully when the time comes for it.

[129] Some hold that the statement of facts should always begin by referring to some person, whom we must [p. 121] praise if he is on our side, and abuse if he is on the side of our opponents. It is true that this is very often done for the good reason that a law-suit must take place between persons. [130] Persons may however also be introduced with all their attendant circumstances, if such a procedure is likely to prove useful. For instance, “The father of my client, gentlemen, was Aulus Cluentius Habitus, a man whose character, reputation and birth made him the leading man not only in his native town of Larinum, but in all the surrounding district.”⁵³ [131] Or again they may be introduced without such circumstances, as in the passage beginning “For Quintus Ligarius etc.”⁵⁴ Often, too, we may commence with a fact as Cicero does in the pro Tullio⁵⁵: “Marcus Tullius has a farm which he inherited from his father in the territory of Thurium,” or Demosthenes in the speech in defence of Ctesiphonl,⁵⁶—“On the outbreak of the Phocian war.”

[132] As regards the conclusion of the statement of facts, there is a controversy with those who would have the statement end where the issue to be determined begins. Here is an example. “After these events the praetor Publius Dolabella issued an interdict in the usual form dealing with rioting and employment of armed men, ordering, without any exception, that Aebutius should restore the property from which he had ejected Caecina. He stated that he had done so. A sum of money was deposited. It is for you to decide to whom this money is to go.”⁵⁷ This rule can always be observed by the prosecutor, but not always by the defendant.

III. In the natural order of things the statement of fact is followed by the verification. For it [p. 123] is necessary to prove the points which we stated with the proof in view. But before I enter on this portion, I have a few words to say on the opinions held by certain rhetoricians. Most of them are in the habit, as soon as they have completed the statement of facts, of digressing to some pleasant and attractive topic with a view to securing the utmost amount of favour from their audience. [2] This practice originated in the display of the schools of declaration and thence extended to the courts as soon as causes came to be pleaded, not for the benefit of the parties concerned, but to enable the advocates to flaunt their talents. I imagine that they feared that if the slender stream of concise statement, such as is generally required, were followed by the pugnacious tone inevitable in the arguing of the case, the speech would fall flat owing to the postponement of the pleasures of a more expansive eloquence. [3] The objection to this practice lies in the fact that they do this without the slightest consideration of the difference between case and case or reflecting whether what they are doing will in any way assist them, on the assumption that it is always expedient and always necessary. Consequently they transfer striking thoughts from the places which they should have occupied elsewhere and concentrate them in this portion of the speech, a practice which involves either the repetition of a number of things that they have already said or their omission from the place which was really theirs owing to the fact that they have already been said. [4] I admit however that this form of digression can be advantageously appended, not merely to the statement of facts, but to each of the different questions or to the questions as a whole, [p. 125] so long as the case demand, or at any rate permit it. Indeed such a practice confers great distinction and adornment on a speech, but only if the digression fits in well with the rest of the speech and follows naturally on what has preceded, not if it is thrust in like a wedge parting what should naturally come together. [5] For there is no part of a speech so closely connected with any other as the statement with the proof, though of course such a digression may be intended as the conclusion of the statement and the beginning of the proof There will therefore sometimes be room for digression; for example if the end of the statement has been concerned with some specially horrible theme, we may embroider the theme as though our indignation must find immediate vent. [6] This, however, should only be done if there is no question about the facts. Otherwise it is more important to verify your charge than to heighten it, since the horrible nature of a charge is in favour of the accused, until the charge is proved. For it is just the most flagrant crimes that are the most difficult to prove. [7] Again a digression may be advantageous if after setting forth the services rendered by your client to his opponent you denounce the latter for his ingratitude, or after producing a variety of charges in your statement, you point out the serious danger in which the advancement of such charges is likely to involve you. [8] But all these digressions should be brief. For as soon as he has heard the facts set forth in order, the judge is in a hurry to get to the proof and desires to satisfy himself of the correctness of his impressions at the earliest possible moment. Further, care must be taken not to nullify the effect of the statement by [p. 127] diverting the minds of the court to some other theme and wearying them by useless delay.

[9] But, though such digressions are not always necessary at the end of the statement, they may form a very useful preparation for the examination of the main question, more especially if at first sight it presents an aspect unfavourable to our case, if we have to support a harsh law or demand severe punishment. For this is the place for inserting what may be regarded as a second exordium with a view to exciting or mollifying the judge or disposing him to lend a favouring ear to our proofs. Moreover we can do this with all the greater freedom and vehemence at this stage of the proceedings since the case is already known to the judge. [10] We shall therefore employ such utterances as emollients to soften the harder elements of our statement, in order that the ears of the jury may be more ready to take in what we have to say in the sequel and to grant us the justice which we ask. For it is hard to persuade a man to do anything against the grain. [11] It is also important on such occasions to know whether the judge prefers equity or a strict interpretation of the law, since the necessity for such digression will vary accordingly.

[12] Such passages may also serve as a kind of peroration after the main question. The Greeks call this παρέκβασις, the Romans egressus or egressio (digression). They may however, as I have said, be of various kinds and may deal with different themes in any portion of the speech. For instance we may extol persons or places, describe regions, record historical or even legendary occurrences. [13] As examples I may cite the praise of Sicily and the rape [p. 129] of Proserpine⁵⁸ in the Verrines, or the famous recital of the virtues of Gneius Pompeius in the pro Cornelio,⁵⁹ where the great orator as though the course of his eloquence had been broken by the mere mention of the general's name, interrupts the topic on which he had already embarked and digresses forthwith to sing his praises. [14] παρέκβασις may, I think, be defined as the handling of some theme, which must however have some bearing on the case, in a passage that involves digression from the logical order of our speech. I do not see therefore why it should be assigned a special position immediately following on the statement of facts any more than I understand why they think that the name is applicable only to a digression where some statement has to be made, when there are so many different ways in which a speech may leave the direct route. [15] For whatever we say that falls outside the five divisions of the speech already laid down is a digression, whether it express indignation, pity, hatred, rebuke, excuse, conciliation or be designed to rebut invective. Other similar occasions for digression on points not involved by the question at issue arise when we amplify or abridge a topic, make any kind of emotional appeal or introduce any of those topics which add such charm and elegance to oratory, topics that is to say such as luxury, avarice, religion, duty: but these would hardly seem to be digressions as they are so closely attached to arguments on similar subjects that they form part of the texture of the speech. [16] There are however a number of topics which are inserted in the midst of matter which has no connexion with them, when for example we strive to excite, admonish, appease, entreat or praise the judge. Such passages are [p. 131] innumerable. Some will have been carefully prepared beforehand, while others will be produced to suit the occasion or the necessity of the moment, if anything extraordinary should occur in the course of our pleading, such as an interruption, the intervention of some individual or a disturbance. [17] For example, this made it necessary for Cicero to digress even in the exordium when he was defending Milo, as is clear from the short speech⁶⁰ which he made on that occasion. But the orator who makes some preface to the main question or proposes to follow up his proofs with a passage designed to commend them to the jury, may digress at some length. On the other hand, if he breaks as say in the middle of his speech, he should not be long in returning to the point from which he departed.

IV. After the statement of facts some place the proposition⁶¹ which they regard as forming a division of a forensic speech. I have already expressed my opinion of this view.⁶² But it seems to me that the beginning of every proof is a proposition, such as often occurs in the demonstration of the main question and sometimes even in the enunciation of individual arguments, more especially of those which are called ἐπιχειρήματα⁶³ But for the moment I shall speak of the first kind. It is not always necessary to employ it. [2] The nature of the main question is sometimes sufficiently clear without any proposition, especially if the statement of facts ends exactly where the question begins. Consequently the recapitulation generally employed in the case of arguments is sometimes placed immediately after the statement of facts. “The affair took place, as I have described, gentlemen: he that laid the ambush was defeated, [p. 133] violence was conquered by violence, or rather I should say audacity was crushed by valour.”⁶⁴ [3] Sometimes proposition is highly advantageous, more especially when the fact cannot be defended and the question turns on the definition of the fact; as for example in the case of the man who has taken the money of a private individual from a temple: we shall say, “My client is charged with sacrilege. It is for you to decide whether it was sacrilege,” so that the judge may understand that his sole duty is to decide whether the charge is tantamount to sacrilege. [4] The same method may be employed in obscure or complicated cases, not merely to make the case clearer, but sometimes also to make it more moving. This effect will be produced, if we at once support our pleading with some such words as the following: “It is expressly stated in the law that for any foreigner who goes up on to the wall the penalty is death. You are undoubtedly a foreigner, and there is no question but that you went up on to the wall. The conclusion is that you must submit to the penalty.” For this proposition forces a confession upon our opponent and to a certain extent accelerates the decision of the court. It does more than indicate the question, it contributes to its solution.

[5] Propositions may be single, double or manifold: this is due to more than one reason. For several charges may be combined, as when Socrates was accused of corrupting the youth and of introducing new superstitions; while single propositions may be made up of a number of arguments, as for instance when Aeschines is accused of misconduct as an ambassador on the ground that he lied, failed to [p. 135] carry out his instructions, wasted time and accepted bribes. [6] The defence may also contain several propositions: for instance against a claim for money we may urge, “Your claim is invalid; for you had no right to act as agent nor had the party whom you represent any right to employ an agent: further, he is not the heir of the man from whom it is asserted that I borrowed the money, nor am I his debtor.” [7] These propositions can be multiplied at pleasure, but it is sufficient to give an indication of my meaning. If propositions are put forward singly with the proofs appended, they will form several distinct propositions: if they are combined, they fall under the head of partition.

[8] A proposition may also be put forward unsupported, as is generally done in conjectural cases: “The formal accusation is one of murder, but I also charge the accused with theft.” Or it may be accompanied by a reason: “Gaius Cornelius is guilty of an offence against the state; for when he was tribune of the plebs, he himself read out his bill to the public assembly.”⁶⁵ I In addition to these forms of proposition we can also introduce a proposition of our own, such as “I accuse him of adultery,” or may use the proposition of our opponent, such as “The charge brought against me is one of adultery,” or finally we may employ a proposition which is common to both sides, such as “The question in dispute between myself and my opponent is, which of the two is next-of-kin to the deceased who died intestate.” Sometimes we may even couple contradictory propositions, as for instance “I say this, my opponent says that.”

[p. 137] [9] We may at times produce the effect of a proposition, even though it is not in itself a proposition, by adding after the statement of facts some phrase such as the following: “These are the points on which you will give your decision,” thereby reminding the judge to give special attention to the question and giving him a fillip to emphasise the point that we have finished the statement of facts and are beginning the proof, so that when we start to verify our statements he may realise that he has reached a fresh stage where he must begin to listen with renewed attention.

V. Partition may be defined as the enumeration in order of our own propositions, those of our adversary or both. It is held by some that this is indispensable on the ground that it makes the case clearer and the judge more attentive and more ready to be instructed, if he knows what we are speaking about and what we are going subsequently to speak about. [2] Others, on the contrary, think that such a course is dangerous to the speaker on two grounds, namely that sometimes we may forget to perform what we have promised and may, on the other hand, come upon something which we have omitted in the partition. But this will never happen to anyone unless he is either a fool or has come into court without thinking out his speech in detail beforehand. [3] Besides, what can be simpler or clearer than a straightforward partition ? It follows nature as a guide and the adhesion to a definite method is actually of the greatest assistance to the speaker's memory. Therefore I cannot approve the view even of those who lay down that partition should not extend beyond the length of three propositions. No doubt there is a danger, if our partition is too complicated, that it [p. 139] may slip the memory of the judge and disturb his attention. But that is no reason why it should be tied down to a definite number of propositions, since the case may quite conceivably require more. [4] There are further reasons why we should sometimes dispense with partition. In the first place there are many points which can be produced in a more attractive manner, if they appear to be discovered on the spot and not to have been brought ready made from our study, but rather to have sprung from the requirements of the case itself while we were speaking. Thus we get those not unpleasing figures such as “It has almost escaped me,” “I had forgotten,” or “You do well to remind me.” For if we set forth all that we propose to prove in advance, we shall deprive ourselves of the advantage springing from tile charm of novelty. [5] Sometimes we shall even have to hoodwink the judge and work upon him by various artifices so that he may think that our aim is other than what it really is. For there are cases when a proposition may be somewhat startling: if the judge foresees this, he will shrink from it in advance, like a patient who catches sight of the surgeon's knife before the operation. On the other hand, if we have given him no preliminary notice and our words take him unawares, without his interest in them having been previously roused by any warning, we shall gain a credence which we should not have secured had we stated that we were going to raise the point. [6] At times we must not merely avoid distinguishing between the various questions, but must omit them altogether, while our audience must be distracted by appeals to the emotion and their attention diverted. For the duty of the orator is not [p. 141] merely to instruct: the power of eloquence is greatest in emotional appeals. Now there is no room for passion if we devote our attention to minute and microscopic division at a time when we are seeking to mislead the judgment of the person who is trying the case. [7] Again, there are certain arguments which are weak and trivial when they stand alone, but which have great force when produced in a body. We must, therefore, concentrate such arguments, and our tactics should be those of a sudden charge in mass. This, however, is a practice which should be resorted to but rarely and only under extreme necessity when reason compels us to take a course which is apparently irrational. [8] In addition it must be pointed out that in any partition there is always some one point of such special importance, that when the judge has heard it he is impatient with the remainder, which he regards as superfluous. Consequently if we have to prove or refute a number of points partition will be both useful and attractive, since it will indicate in order what we propose to say on each subject. On the other hand, if we are defending one point on various grounds partition will be unnecessary. [9] If you were to make a partition such as the following, “I will not say that the character of my client is such as to render him incapable of murder, I will only say that he had no motive for murder and that at the time when the deceased was killed he was overseas,” in that case all the proofs which you propose to bring before this, the final proof, must needs seem superfluous to the judge. [10] For the judge is always in a hurry to reach the most important point. If he has a patient disposition he will merely make a silent appeal to the advocate, [p. 143] whom he will treat as bound by his promise. On the other hand, if he is busy, or holds exalted position, or is intolerant by nature, he will insist in no very courteous manner on his coming to the point. [11] For these reasons there are some who disapprove of the partition adopted by Cicero in the pro Cluentio,⁶⁶ where he premises that he is going to show, first, “that no man was ever arraigned for greater crimes or on stronger evidence than Oppianicus,” secondly, “that previous judgments had been passed by those very judges by whom he was condemned,” and finally, “that Cluentius made no attempt to bribe the jury, but that his opponent did.” They argue that if the third point can be proved, there is no need to have urged the two preceding. [12] On the other hand you will find no one so unreasonable or so foolish as to deny that the partition in the pro Murena⁶⁷ is admirable. “I understand, gentlemen, that the accusation falls into three parts, the first aspersing my client's character, the second dealing with his candidature for the magistracy, and the third with charges of bribery.” These words make the case as clear as possible, and no one division renders any other superfluous.

[13] There are also a number who are in doubt as to a form of defence which I may exemplify as follows: “If I murdered him, I did right; but I did not murder him.”⁶⁸ What, they ask, is the value of the first part, if the second can be proved, since they are mutually inconsistent, and if anyone employs both arguments, we should believe neither? This contention is partially justified; we should employ the [p. 145] second alone only if the fact can be proved without a doubt. [14] But if we have any doubts as to being able to prove the stronger argument, we shall do well to rely on both. Different arguments move different people. He who thinks that the act was committed may regard it as a just act, while he who is deaf to the plea that the act was just may perhaps believe that it was never committed: one who is confident of his powers as a marksman may be content with one shaft, whereas he who has no such confidence will do well to launch several and give fortune a chance to come to his assistance. [15] Cicero in the pro Milone reveals the utmost skill in showing first that Clodius laid an ambush for Milo and then in adding as a supernumerary argument that, even if he had not done so, he was nevertheless so bad a citizen that his slaying could only have done credit to the patriotism of the slayer and redounded to his glory. [16] I would not however entirely condemn the order mentioned above,⁶⁹ since there are certain arguments which, though hard in themselves, may serve to soften those which come after. The proverb, “If you want to get your due, you must ask for something more,”⁷⁰ [17] is not wholly unreasonable. Still no one should interpret it to mean that you must stop short of nothing. For the Greeks are right when they lay it down as a rule that we should not attempt the impossible. But whenever the double-barrelled defence of which I am speaking is employed, we must aim at making the first argument support the credibility of the second. For he who might without danger to himself have confessed to the commission of the act, can have no motive for lying when he denies the commission.

[p. 147] [18] Above all it is important, whenever we suspect that the judge desires a proof other than that on which we are engaged, to promise that we will satisfy him on the point fully and without delay, more especially if the question is one of our client's honour. [19] But it will often happen that a discreditable case has the law on its side, and to prevent the judges giving us only a grudging and reluctant hearing on the point of law, we shall have to warn them with some frequency that we shall shortly proceed to defend our client's honour and integrity, if they will only wait a little and allow us to follow the order of our proofs. [20] We may also at times pretend to say certain things against the wishes of our clients, as Cicero⁷¹ does in the pro Cluentio when he discusses the law dealing with judicial corruption. Occasionally we may stop, as though interrupted by our clients, while often we shall address them and exhort them to let us act as we think best. Thus we shall make a gradual impression on the mind of the judge, and, buoyed up by the hope that we are going to clear our client's honour, he will be less ill-disposed toward the harder portions of our proof. And when he has accepted these, [21] he will be all the readier to listen to our defence of our client's character. Thus the two points will render mutual assistance to each other; the judge will be more attentive to our legal proofs owing to his hope that we shall proceed to a vindication of character and better disposed to accept that vindication because we have proved our point of law.

[22] But although partition is neither always necessary nor useful, it will, if judiciously employed, greatly [p. 149] add to the lucidity and grace of our speech. For it not only makes our arguments clearer by isolating the points from the crowd in which they would otherwise be lost and placing them before the eyes of the judge, but relieves his attention by assigning a definite limit to certain parts of our speech, just as our fatigue upon a journey is relieved by reading the distances on the milestones which we pass. [23] For it is a pleasure to be able to measure how much of our task has been accomplished, and the knowledge of what remains to do stimulates us to fresh effort over the labour that still awaits us. For nothing need seem long, when it is definitely known how far it is to the end. [24] Quintus Hortensius deserves the high praise which has been awarded him for the care which he took over his partitions, although Cicero more than once indulges in kindly mockery of his habit of counting his headings on his fingers. For there is a limit to gesture, and we must be specially careful to avoid excessive minuteness and any suggestion of articulated structure in our partition. If our divisions are too small, [25] they cease to be limbs and become fragments, and consequently detract not a little from the authority of our speech. Moreover, those who are ambitious of this sort of reputation, in order that they may appear to enhance the nicety and tile exhaustive nature of their division, introduce what is superfluous and subdivide things which naturally form a single whole. The result of their labours is, however, not so much to increase the number of their divisions as to diminish their importance, and after all is done and they have split up their argument into a thousand tiny compartments, they fall into that very obscurity which the partition was designed to eliminate.

[p. 151] [26] The proposition, whether single or multiple, must, on every occasion when it can be employed with profit, be clear and lucid; for what could be more discreditable than that a portion of the speech, whose sole purpose is to prevent obscurity elsewhere, should itself be obscure? Secondly it must be brief and must not be burdened with a single superfluous word; for we are not explaining what we are saying, but what we are going to say. [27] We must also ensure that it is free alike from omissions and from redundance. Redundance as a rule occurs through our dividing into species when it would be sufficient to divide into genera, or through the addition of species after stating the genus. The following will serve as an example: “I will speak of virtue, justice and abstinence.” But justice and abstinence are species of tile genus virtue. [28] Our first partition will be between admitted and disputed facts. Admitted facts will then be divided into those acknowledged by our opponent and those acknowledged by ourselves. Disputed facts will be divided into those which we and those which our opponents allege. But the worst fault of all is to treat your points in an order different from that which was assigned them in your proposition.