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 the
peroration,
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
class
3; 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 judge
4 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 circumstances
5 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 Cicero
8 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 centumviral
9 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. Aristotle
14 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 sentence
20