 I have now, my dear Marcella's victorious, 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 which 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. But now Domiciana's Augustus has entrusted me with the education of his sister's grandsons, and I should be undeserving of the honor 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. For it is clearly my duty to spare no pains in molding 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 training, for I would not be found to have disappointed the expectations of a prince preeminent in eloquence as in all other virtues. But no one is surprised at the frequency with which the greatest poets invoke them uses, 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. Assurably, 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 so much favor 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. 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 cases, 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. 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 could bear, and consequently have published several books on each individual point. I have ventured to treat them altogether, and foresee such infinite labor that I feel wary at the very thought of the task I have undertaken. But I have set my hand to the plow, and must not look back. My strength may fail me, but my courage must not fail. Chapter 1 The commencement or Exordium, 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. It may be because oime means a tune, and players on the liar have given the name of proem to the prelude which they perform to win the favor 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. Or it may be because oimos 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. This form of license arises from the fact that a sketch of the case is always given before actual declamation. Such kinds of Exordia may, however, be employed in the 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. The sole purpose of the Exordium is to prepare our audience in such a way that they will be disposed to land a ready ear to the rest of her 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. Those regards goodwill. 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 plaintive, the defendant and the judge. 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 preeminently 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 necessary for the parties themselves to create the impression that they have been forced to take legal action by some weighty and honorable reason or even by necessity. For 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 Massala. For men have a natural prejudice in favor 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. 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 heard without exciting the disapproval of the judges. As to the judge, it would be folly for me to warn speakers not to say or even hint anything against him, for the fact that such things do occur. Our opponent's advocate will sometimes provide us with material for our Exordia. 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 a zinnias did in his speech on behalf of the heirs of Herbinia, where he includes among the proofs of the weakness of the plaintiff's case the fact that he had secured Lebianus as his advocate. 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 readyer credence to those to whom they find it a pleasure to listen. The character of our client himself may, too, be treated in various ways. We may emphasize 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 we men, old men or wards are pleading in the character of wives, parents or children. 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 goodwill of the judges. 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 goodwill of the judge, not merely by praising him, which must be done with tact and in an artifice common to both parties, but 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. 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 case, 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 easygoing. It will, however, 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 favored 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 favor of those with whom they have a quarrel, and of committing injustice merely to avoid the appearance of partiality. 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 emphasize 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 by a chaotic delicacy. Further, if the judge is thought to have come into court with a prejudice in favor of one side, we must try to remove or strengthen that prejudice as circumstances may demand. Again, occasionally we shall have to calm the judge's fears, as Cicero does in the promilone, 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 variants. 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. 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, except in the very last resort. 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 indignant of the judge before he gives his decision, for even one who is no orator can threaten or lay in information. 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. On this subject, Virginia's falls into error, for he asserts that Theodorus lays down that some one reflection 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, but merely that the judge should be prepared for the most important of the questions that are to be raised. There's 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 reflections 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, the case is somewhat difficult, surely we should seek to win the goodwill 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 favor. If the main questions ought always to be treated at the beginning of a speech, we might dispense with the Exordium. 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 favor. It is not necessary to enumerate the points which are likely to gain us such favor, 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. 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. 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. But it is the function of the Exordium not nearly 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 proves successful. But Exordia are often drawn from matters which do not, strictly speaking, concern either cases or the person involved, though not unrelated to either. 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. As regards external circumstances which have a bearing on the case, I may mention time, which is introduced in the Exordium of the Procailio, place in the Prodeotaro, the appearance of the court in the Promilone, public opinion in the Verines, and finally, as I can not 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. Theophrastus adds that the Exordium may be drawn from the speech of one's opponent, as that of the Proctesi Fonte of the Mostonis 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. Confidence often labors under the disadvantage of being regarded as arrogance. But there are certain tricks for acquiring goodwill, 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. 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 will, when his mind must be stirred by hope, fear, admonition, and treaty, and even by falsehood, if it seems to us that it is likely to advance our case. We shall also find it a useful device for awakening 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. For, as regards the length of the Exordium, it should be 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 Procluentio of Cicero. 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 in vetret, 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. 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 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. 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 Proligario. 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 Procailo, safe 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. The majority of writers consider that there are five kinds of causes, the honorable, the mean, the doubtful or ambiguous, the extraordinary and the obscure, or as they are called in Greek endoxon, adoxon, amphidoxon, paradoxon, and dusparakoluteton. To these some would add a sixth, the scandalous, which some again include under the heading of the mean, others under the extraordinary. The latter name is given to cases which are contrary to ordinary expectation. In ambiguous cases it is especially important to secure the goodwill of the judge, in the obscure to render him ready to receive instruction, in the mean to excite his attention. As regards the honorable, 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. Some therefore divide the exhortium into two parts, the introduction and the insinuation, making the former contain a direct appeal to the goodwill 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. 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 a classification by species impossible, and their enumeration, save under the most general heads, would be interminable. 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 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 goodwill as possible, the next best thing is to incur the minimum of actual dislike. 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. At times, like Cicero in his defense of Riberius Postmus, 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 red-ear credence, whether he defends or denies the action 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. 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 person's concerned. For emotions are not transferable at will, nor can we give the same forcible expression to another man's emotions that we should give to our own. 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 proves, 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. 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 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 various. He then goes on to show that the accusation which he has undertaken is really a defense of the allies, an orifice known as prolepsis, or anticipation. 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 Aplodoras 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 some bearing on it, to the opinion current as to the case itself, and so on add infinitum. To these, they add others relating to the elements of which every dispute is composed, such as persons, deeds, words, motifs, time, and place, occasions, and the like. Such views are, I admit, perfectly correct, but are covered by one or other of the three classes which I have mentioned, for if I can secure goodwill, 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 favoring our opponent. 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 defense, against whom, at what time and place, under what circumstances he has to speak, what is the popular opinion on the subject, what the prepositions 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. Nowadays, however, speakers think that anything with which they choose to start is a problem, and that whatever occurs to them, especially if it be a reflection 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 lose effect by being placed elsewhere. 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 be often regarded as extemporary, simply because its commencement is clearly not the result of private study. 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. 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, 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 centumveral court, the judges themselves demand the most finished and 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. It is difficult to preserve the happy mean in carrying this precept into effect, but by a skillful 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 license should be detected in the Exordium. 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 goodwill and kindled their interest they will tolerate such freedom, more especially when we have reached topics whose natural richness prevents any license of expression being noticed in the midst of the prevailing splendor of the passage. The style of the Exordium 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, unepiphatos, 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. There is no point in the whole speech where confusion of memory or loss of fluency has a worse effect. For a faulty Exordium is like a face seen with scars, and he who runs his ship ashore while leaving port is certainly the least efficient of pilots. 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 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. 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 favor we desire to win. 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. For the writers of textbooks 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. Moreover, the Mostonis turns to address Eskinis in his Exordium, while Cicero adopts the same device in several of his speeches, but more especially in the Proligario, where he turns to address Tuberow. His speech would have been much less effective if any other figure had been used, as will be all the more clearly realized if the whole of that most vigorous passage, you are then in possession, Tuberow, 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 Tuberow is then in possession of the most valuable advantage that can fall to an accuser. In the original form, Cicero attacks his opponent and presses him hard in the passage, as altered he would nearly have pointed out a fact. The same thing results if you alter the turn of the passage in the Mostonis. Again, did not Salist, 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 reflections 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? Finally, to remove all reason for feeling surprise at the employment of apostrophe, Cicero in his defense of Scorus 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 prorabirio and his speech in the defense of the same Scorus on a charge of extortion he employs illustrations, and in the Procluentio, as I have already pointed out, introduces division into heads. Still, such autophyses, 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 all the tropes, all of which are forbidden by our cautious and pedantic teachers of rhetoric, but which we shall nonetheless occasionally employ, unless indeed we are to disapprove of the magnificent example of irony in the Proligario, to which I have already referred a few pages back. 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 Exordium, but may be found in any or every portion of a speech. 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 such preparation unnecessary. Aristotle 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. 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 goodwill. A proceeding which Prodicas recommended as a means of wakening them when they begin to nod. A good example is the following. Gaius Varinas, 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 my next point. Even in the proof, there are many passages which perform the same function as an Exordium, such as the passage in the Procluentio where Cicero introduces an attack on the censors, and in the Promurena when he apologizes to Sirius. But the practice is too common to need illustration. 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. There is indeed a pedantic and childish affectation in vogue in the schools of marking the transition by some epigram, and seeking to be in applause by the suite of Legerdemain. Ovid is given to this form of affectation in his metamorphosis, but there is some excuse for him, owing to the fact that he is compelled to weld together subjects of the most diverse nature to best form a continuous whole. But why 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 realize that we have reached that stage. 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. 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. Chapter 2, Part 1 of On the Education of an Orator by Quintilian, translated by H. E. Butler, Tisley-Rivox Recording, is in the public domain. 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 we will have to give judgment. That is the statement of facts. 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 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, Marcus Lolius Polycanus, a Byzantine of humble birth, a man gifted with locustity rather than eloquence, or of the place where an incident occurred, as in the sentence, L'Emsicus, gentlemen, is a town situated on the Hellespunt, or of time at which something occurred, as in the verse, in early spring, when on the mountain's whore 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, 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's remarks about the excitement caused among the friends of Chrysalganus when his name was mentioned, or of the future, a form permissible only to prophets, for hypoteposis or picturesque description cannot be regarded as a statement of facts. However, that is passed 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. 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 admitted, and the whole question turns on a point of law, as it so often does in the centumveral court, as for example when we discuss whether the heir of a woman who has died interstate 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 a full statement, but are well known to the judge or have been correctly set forth by a previous speaker. 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 the 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. Again, it is sometimes sufficient and expedient to summarize 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 defense to expound. On the other hand, in some cases, the accused may dispense with the statement of facts, when for instance the charge can either be denied nor palliated, but turned 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 seemingly than a full statement of facts. We do not deny that the 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. 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 Celsius, who holds that most cases of murder and all of bribery and extortion fall into this class, 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 defense of Riberius Postimus, in spite of the fact that Cicero denies that any money came into the hands of Riberius, and this was the question at issue, and gives no explanation relating to the actual charge in his statement of facts. 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. 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 to a long one, an 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. For the accuser does not merely say you killed him, but sets forth the facts proving his assertion. Tragedy will provide an example, where Tusser accuses Ulysses of murdering Ajax, and states that he was found in a lonely place near the lifeless body of his enemy with a bloodstained 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. 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 altogether, by setting forth the facts in quite a different light. 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 best record, but also the reasons which have made the whole province, or the accuser, or a witness hostile to himself? If these are not statements of fact, neither is the first portion of Cistero's defense of Cluentius, beginning with the words Aulus Cluentius Habitus. For there he says nothing about the charge of poisoning, but confines himself entirely to setting forth the reasons for the hostility of Cluentius' mother to her son. There are also statements which do not set forth the facts of the case itself, but facts which are nonetheless relevant to the case. The speaker's purpose may be to illustrate the case by some parallel, as in the passage in the Verians about Lucius the Mishis, 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. Or he may desire to dispel some charge that is irrelevant to the case, as in the passage of the speech for rebellious posthumous which runs as follows. For when he came to Alexandria gentlemen, the only means of saving his money which the king suggested to posthumous 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 Cistero does in his description of the Journey of Veres. Sometimes a fictitious statement is employed, either to stir the emotions of the judges, as in that passage of the Poroschio Amerino dealing with Chrysalgonus, to which I refer just recently, or to entertain them with a show of wit, as in the passage of the Procluentio describing the brother Cepaceus. Sometimes again, a digression may be introduced to add beauty to the speech, as in the passage about Proserpine in the Verians 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. 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 favorable to our case. 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. At times again, we may pretend that we are repeating the facts for the benefit of some new member of the jury, at times that we do so with a view to letting every bystander as well realize the gross unfairness of our opponent's assertions. Under these circumstances, our statement must be diversified by a free use of figures to avoid wearing 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. Besides, if we are always to regard as superfluous a statement of facts made before a judge who's familiar with the case, we may even go so far as to regard it as superfluous at times to plead the case at all. There's a further question which is still more frequently raised as to whether the statement of facts should always follow immediately on the Exordian. 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 Exordian is to make the judge more favorably 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 instructing the facts without delay, but the practice may be altered by circumstances, unless it is contented that Cicero in his magnificent published defense of Milo delayed his statement too long by placing three questions before it, or unless it is argued that if he had 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 Nea's Pompeyas, 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 Claudius had set an ambush for Milo. These three questions then serve the purpose of an Exordian, since all of them were designed to prepare the minds of the judges. Again, in the provareno Cicero delayed the 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 concerned to parry our adversaries' blows before we strike him ourselves. There will also nothing frequently 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 favorable hearing to our defense of the actual facts which form the question at issue. For example, if we have to defend Marcus Cilius, 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 defense is entirely concerned. Is he then to go on to make a statement about the property of Pala and explain the whole question of rioting, a charge again which Cilius has already defended himself in the speech which he delivered on his own behalf? 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 the claimers to take the liberty of inserting a statement of facts even when they speak second for their side. 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 defense 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 speak either first or second? 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. 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 turns cynic before the censors for indecent behavior? In both cases, the charge can be sufficiently indicated by one word placed in any part of the speech. But enough of these points. 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 Isocrates in 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. I agree with this classification of its qualities, although Aristotle 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 Theodoras, on the other hand, recognize only plausibility on the ground that it is not always expedient that our exposition should be either short or clear. It will be necessary 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 especially useful. The statement will be either wholly in our favor or wholly in that of our opponent, or a mixture of both. If it is entirely in our own favor, 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. Now, I should regret that anyone should censure my conduct in suggesting that a statement which is wholly in our favor 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. These good qualities which I have mentioned above do not indeed cease to be virtuous 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 labor is but lost in the remainder of the speech. 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 hand far-fetched 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. The 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 clackers, 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 clamor. 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. 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. 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 favor for pointing out the right road, rather than to give offense by rebuking such perversity. The statement of fact 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. 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 lost our cable and set out. Nothing could be tercerer 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 premises, we must be content with having given a hint, which will enable our audience to understand what we have left unsaid. Consequently, when it is possible to say I have a young son, it is quite superfluous to say, being desires 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 syntamos, and a brief statement, the former being free from all superfluous matter, while the latter may conceivably omit something that requires to be stated. 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, they are faults which we should shun for other reasons beside our desire for brevity. But we must be equally on our guard against the obscurity which results from excessive abridgement, 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. We must therefore avoid even the famous terceness of cellist, 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 countryside and is expected to give a decision on what he can understand. Consequently, we must aim, perhaps everywhere, but above all in our statement effects at striking the happy mean in our language, and the happy mean may be defined as saying just what is necessary and just what is sufficient. 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 shortcut through an arid waste. 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 effects in every direction, and you will turn it into something more like a confession. Moreover, the 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 last tedious. We must do what we can to make it last 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. Some things indeed may be omitted altogether from our marshaling of the facts. Witness the following example from Cicero. Falsinius died. There are many circumstances which attended that event, but as they have little bearing on this case, I shall pass them by. The vision of our statement into its various heads is another method of avoiding tedium, for example. I will tell you first what preceded the affair, then what occurred in its actual development, and finally you shall hear its sequel. Such a division will give the impression of three short statements, rather than 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. 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 brief statement of facts in the Proligario. To this day, Caesar, Quintus Ligarias is free from all blame. He left his home not nearly without the least intention of joining in any war, but when there was not the least suspicion of any war, etc. The statement of facts 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. 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. 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 supprevent. The same result is produced by 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. 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. The best kind of preparatory remarks are those which cannot be recognized as such. Cicero, for instance, is extraordinarily happy in the way he mentions in advance everything that shows that Claudius lay in wait for Milo, and not Milo for Claudius. The most effective stroke of all is his cunning faint 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. 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 in 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. The majority of readers regard this passage as lacking in distinction, but this very fact merely serves 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 effects credible. If a student requires to be told that we must avoid contradiction and inconsistency in our statement of facts, it will be vain to attain to instruct him on the remaining points, although some writers of textbooks produce this precept as if it were a mystery only discovered by their own personal penetration. To these three qualities some add magnificence of diction, or megaloprepia, 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, latin, and hiring, and interdates? Nor yet is it always expedient, as may be inferred from the passage just cited from the promilone. 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 especially appropriate to the statement effects than language calculated to excite piety or hatred or characterized 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. Theodectes asserts that the statement effect should not merely be magnificent, but attractive in style. But this quality again, though suitable enough to the statement effect, is equally so in other portions of the speech. There are others who add palpability, which the Greeks call anargeia, and I will not conceal the fact that Cistro 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. Palpability, 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 truth. This contention is, however, absurd. 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. And the Section 2. Book 4, Chapter 2, Part 2 of On the Education of an Orator by Quintilian, translated by H. E. Butler. This Librivox recording is in the public domain. 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. I do not, of course, deny that just as there may be some points which you should deny in your statement 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. 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 be 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 father can have no option as to his fate. 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 cesterces, 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 extend their own faults. In some cases, too, we may mitigate a bad impression by words which avoid the appearance of a statement of facts. We must say, for instance, he did not, as our opponent asserts, enter the temple with the deliberate intention of theft, nor seek a favorable 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 a man, and so yielded to temptation. What does that matter? He committed the offense and is a thief. It is useless to defend and act to the punishment of which we can raise no objection. 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 cesterces. Sometimes we may fortify our case in advance by a preliminary summary, from which we proceed to the full statement of facts. 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 order predetermined, and each armed with a sword. None of them had the heart to kill him. He woke and they confessed all. If, however, the father who has divided his estate among them and is defending them when accused of parasite pleads as follows. As regards my defense against the law, it suffices to point out that these young men are charged with parasite 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. And if you then should add, they were spurred to attempt the crime by others who had more indulgent fathers, but the real feelings toward their father have been proved by the result. They could not bring themselves to 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 most disposed to mercy, since the brief defense offered in the first summary statement would have paved the way for them. 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, 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 proves, while the peroration has kindled the indignation of the judge and left them full of anger against us. 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 acts, as it will if there's 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. Some imputations we may mitigate by the use of other words, luxury will be softened down into generosity, avarice into economy, carelessness into simplicity, and I shall seek to win a certain amount of favor 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 know. 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 defense, they must, at least as a rule, set forth what they intend to justify. Why they're not statefully facts which can be got rid of, and must in fact be pointed out to make that possible? 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 defense 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. 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 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. Conjectural 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 delivered 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 defense 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. 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? 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. 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. For there is no single law or fixed rule governing the method of defense. 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. Again, I do not regard it as a crying to repeat a statement of fact more than once, as this rule does in the Procluentio. 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. 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. 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 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 come first. 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 Claudius, for instance, relied on his witnesses, when he stated that he was at Interremna 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, while at other times it will be concerned with the question at issue. Whichever of these two forms we employ, we must take care, first that our fiction is within the bounds of possibility, second that it is consistent with the person's 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. 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 favorable complexion on portions of our case, and yet fail to agree as a whole. Further, what we say 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. 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, there's no doubt about the truth of the proverb that a liar should have a good memory. 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. But we must remember only to invent such things as cannot be checked by evidence. I refer to occasions when we make our own mind 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. 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 facts, unless they are consistent throughout the whole of our speech, more especially as certain things can only be proved by persistent assertion. Take for instance the case of the parasite who claims as his son a young man who has been thrice disinherited by a wealthy farmer, 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. 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 subworn to bring the action. 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. 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 a sign 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 defense, disinherits the son. No defense can be put forward for the son, which is not also a defense of the stepmother. However, what is common to both sides of the case will be stated, and then arguments will be drawn from a comparison of 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. 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 scorched 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. If, however, part of the statement of fact tells in our favor and part against us, we must consider whether, in view of the circumstances of the case, the parts in question should be blend or kept apart. If the points which are damaging to our case be in the majority, the points which are in its favor 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. If, on the other hand, it be the points in our favor which predominate, we may even blend them with the others, since thus the traitors in our camp will have less force. Nonetheless, these points, both good and bad, must not be set forth naked and helpless. Those in our favor must be supported by some argument, and then reasons must be added why the points which are 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 favorable may suffer from their bad company. Further rules are laid down with regard to the statement of fact, forbidding us to indulge in digression, apostrophe, or argumentation, or to put out words in 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. 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 Cicero about the marriage of Sassia is a good example of this. 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 men, 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. 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. The artifice, however, is employed not only by Servius Sulpisius in his speech on behalf of Ophidia when he cries, Am I to suppose that you were drowsed with sleep or weighed down by some heavy lethargy? But by Cicero as well, when in a passage which, like the above, belongs to the statement of fact, in speaking of the ship's captains, he says, you will give so much to enter, etc. Again, in the Procluentio, does not the conversation between Steyenas and Bulbas conduce to speed and enhance the credibility of the statements. In case you should be thought that Cicero did this without design, quite an incredible supposition in his case, I would point out that in the Partitiones, he lays it down that the statement of fact should be characterized 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. We shall, as I have already said, never argue points in the statement of fact, but we may sometimes introduce arguments, as for example Cicero does in the Proligario, 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 occasioned demand, insert a brief defense of the facts in the statement and trace the reasons that led up to them, 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 legged to Gaius Concidius. But how will Cicero put it? Quintus Ligarius, he says, set out for Africa as legged to Gaius Concidius, at a time when there was no thought of war, and again elsewhere, 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 said no more than Quintus Ligarius would not suffer himself to be entangled in any transaction, 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 colored it with emotion. I am therefore all the most surprised at those who hope 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 the pareration, 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? 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. There is not Cicero in his description of the scourging of a Roman citizen, and a few brief words stir all the emotions, not nearly 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 he was a Roman citizen, thereby bringing shame on his oppressor and showing his confidence in the law. Again, does he not, throughout the whole of his statement, excite the warmest indignation at the misfortunes of Philodamus, and move 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? What can any parloration present that is more calculated to stir our pity? If you wait for the parloration to stir your hearer's emotions over circumstances which you have recorded unmoved in your statement of fact, your appeal will come too late. The judge is already familiar with them, and hears their mention without turning a hair, since he was unsteered when they were first recounted to him. Once the habit of mind is formed, it is hard to change it. 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 facts, 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. 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, 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 changed to relax the strain of attention. Thus, we shall avoid repeating the same terminations and escape monotony and a stereotype turn of phrase. For the statement of facts lacks all the other allurements of style, and, unless it is characterized by this kind of charm, will necessarily fall flat. Moreover, there is no portion of a speech at which the judge is more attentive, and consequently nothing that is well-sad 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 believe. 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. 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. 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. If this was done in days when every speech was designed for practical purposes rather than display, and the courts were far stricter than today, how much more should we do it now, when the passion for producing a thrill of pleasure has forced its way even into cases where immense 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. 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 to the scene. Such is the description introduced by Marcus Cilius 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. 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 recognized the voice and touch of each, and tried to embrace her who happened to be nearest. Once awakened, he could not sleep, or 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 most vivid in description? There's 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 comforted 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. It is therefore especially 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, not betray anxiety. Everything must seem to spring from the caves itself, rather than the art of the orator. 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 seizes 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. There's also a kind of repetition of the statement, which the Greeks call epidiagesis. It belongs to the acclamation 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 nor 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 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. Some hold that the statement of facts should always begin by referring to some person, whom we must 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 lawsuit must take place between persons. 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 all excluentious habitus, a man whose character, reputation, and birth made him the leading man, not only in his native town of Lourinum, but in all the surrounding district. Or again, they may be introduced without such circumstances as in the passage beginning for Quintus Ligarius, etc. Often, too, we may commence with a fact, as Cicero does in the Protulio. Marcus Tullius has a farm, which he inherited from his father in the territory of Thurium, or the Mostonis in the speech and defense of Teziphon. On the outbreak of the Foshen War, 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's an example. After these events, the preter Publius Dolabella issued an interdict in the usual form, dealing with rioting and employment of armed men, ordering, without any exception, that Ibusius should restore the property from which he had ejected Cicina. 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. This rule can always be observed by the prosecutor, but not always by the defendant. End of chapter 2