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III.7‑11

This webpage reproduces a section of
Institutio Oratoria

by
Quintilian

published in Vol. II
of the Loeb Classical Library edition, 1920

The text is in the public domain.

This page has been carefully proofread
and I believe it to be free of errors.
If you find a mistake though,
please let me know!


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IV.2

(Vol. II) Quintilian
Institutio Oratoria

p3 Book IV

Chapter 1

PREFACE

I have now, my dear Marcellus Victorius, completed the third book of the work which I have dedicated to you, and have nearly finished a quarter of my task,a 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. 2 But now Domitianus Augustus has entrusted me with the education of his sister's grandsons, and I should be undeserving of the honour conferred upon me by such divine appreciation, if I were not to regard this distinction as the standard by which the greatness of my undertaking must be judged. 3 For it is clearly my duty to spare no pains in moulding the character of my august pupils, that they may earn the deserved approval of the most righteous of censors. The same applies to their intellectual p5training, for I would not be found to have disappointed the expectations of a prince pre-eminent in eloquence as in all other virtues. 4 But no one is surprised at the frequency with which the greatest poets invoke the Muses not merely at the commencement of their works, but even further on when they have reached some important passage and repeat their vows and utter fresh prayers for assistance. 5 Assuredly therefore I may ask indulgence for doing what I omitted to do when I first entered on this task and calling to my aid all the gods and Himself before them all (for his power is unsurpassed and there is no deity that looks with so much favour upon learning),b beseeching him to inspire me with genius in proportion to the hopes that he has raised in me, to lend me propitious and ready aid and make me even such as he has believed me to be. 6 And this, though the greatest, is not the only motive for this act of religious devotion, but my work is of such a nature that, as it proceeds, I am confronted with greater and more arduous obstacles than have yet faced me. For my next task is to explain the order to be followed in forensic 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. 7 Some have preferred to give each of these points separate treatment, fearing that if they undertook them as a whole the burden would be greater than they p7could bear, and consequently have published several books on each individual point. I have ventured to treat them altogetherº and foresee such infinite labour that I feel weary at the very thought of the task I have undertaken. But I have set my hand to the plough and must not look back. My strength may fail me, but my courage must not fail.

1 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. 2 It may be because οἴμη means a tune, and players on the lyre have given the name of proem to the prelude which they perform to win the favour of the audience before entering upon the regular contest for the prize, that orators before beginning to plead make a few introductory remarks to win the indulgence of the judges. 3 Or it may be because οἶμος in Greek means a way, that the practice has arisen of calling an introduction a proem. But in any case there can be no doubt that by proem we mean the portion of a speech addressed to the judge before he has begun to consider the actual case. And it is a mistaken practice which we adopt in the schools of always assuming in our exordia that the judge is already acquainted with the case. 4 This form of licence arises from the fact that a sketch of the case is always given before actual declamation.1 Such kinds of exordia may, however, be employed in the p9courts, when a case comes on for the second time, but never or rarely on the first occasion, unless we are speaking before a judge who has knowledge of the case from some other source.

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

6 As regards good-will, we secure that either from persons connected with the case or from the case itself. Most writers have divided these persons into three classes, the plaintiff, the defendant and the judge. 7 This classification is wrong, for the exordium may sometimes derive its conciliatory force from the person of the pleader. For although he may be modest and say little about himself, yet if he is believed to be a good man, this consideration will exercise the strongest influence at every point of the case. For thus he will have the good fortune to give the impression not so much that he is a zealous advocate as that he is an absolutely reliable witness. It is therefore pre-eminently desirable that he should be believed to have undertaken the case out of a sense of duty to a friend or relative, or even better, if the point can be made, by a sense of patriotism or at any rate some serious moral consideration. No doubt it is even more p11necessary for the parties themselves to create the impression that they have been forced to take legal action by some weighty and honourable reason or even by necessity. 8 But just as the authority of the speaker carries greatest weight, if his undertaking of the case is free from all suspicion of meanness, personal spite or ambition, so also we shall derive some silent support from representing that we are weak, unprepared, and no match for the powerful talents arrayed against us, a frequent trick in the exordia of Messala. 9 For men have a natural prejudice in favour of those who are struggling against difficulties, and a scrupulous judge is always specially ready to listen to an advocate whom he does not suspect to have designs on his integrity. Hence arose the tendency of ancient orators to pretend to conceal their eloquence, a practice exceedingly unlike the ostentation of our own times. 10 It is also important to avoid giving the impression that we are abusive, malignant, proud or slanderous toward any individual or body of men, especially such as cannot be hurt without exciting the disapproval of the judges. 11 As to the judge, it would be folly for me to warn speakers not to say or even hint anything against him, but for the fact that such things do occur. Our opponent's advocate will sometimes provide us with material for our exordium: we may speak of him in honorific terms, pretending to fear his eloquence and influence with a view to rendering them suspect to the judge, or occasionally, though very seldom, we may abuse him, as Asinius did in his speech on behalf of the heirs of Urbinia,2º where he includes among the proofs of the weakness of the plaintiff's case the fact that he has secured Labienus as his advocate. p1312 Cornelius Celsus denies that such remarks can be considered as belonging to the exordium on the ground that they are irrelevant to the actual case. Personally I prefer to follow the authority of the greatest orators, and hold that whatever concerns the pleader is relevant to the case, since it is natural that the judges should give readier credence to those to whom they find it a pleasure to listen. 13 The character of our client himself may, too, be treated in various ways: we may emphasise his worth or we may commend his weakness to the protection of the court. Sometimes it is desirable to set forth his merits, when the speaker will be less hampered by modesty than if he were praising his own. Sex, age and situation are also important considerations, as for instance when women, old men or wards are pleading in the character of wives, parents or children. 14 For pity alone may move even a strict judge. These points, however, should only be lightly touched upon in the exordium, not run to death. As regards our opponent he is generally attacked on similar lines, but with the method reversed. For power is generally attended by envy, abject meanness by contempt, guilt and baseness by hatred, three emotions which are powerful factors to alienate the good-will of the judges. 15 But a simple statement will not suffice, for even the uneducated are capable of that: most of the points will require exaggeration or extenuation as expediency may demand: the method of treatment belongs to the orator, the points themselves belong to the case.

16 We shall win the good-will of the judge not merely by praising him, which must be done with tact and is an artifice common to both parties, but p15by linking his praise to the furtherance of our own case. For instance, in pleading for a man of good birth we shall appeal to his own high rank, in speaking for the lowly we shall lay stress on his sense of justice, on his pity in pleading the cause of misfortune, and on his severity when we champion the victims of wrong, and so on. 17 I should also wish, if possible, to be acquainted with the character of the judge. For it will be desirable to enlist their temperaments in the service of our cause, where they are such as are like to be useful, or to mollify them, if they are like to prove adverse, just according as they are harsh, gentle, cheerful, grave, stern, or easy-going. 18 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 favoured by the judge does not require to handle the situation with even more care than his opponent. For perverse judges have sometimes a preposterous tendency to give judgment against their friends or in favour of those with whom they have a quarrel, and of committing injustice merely to avoid the appearance of partiality. 19 Again some have been judges in cases where their own interests were involved. I note, for instance, in the books of observations published by Septimius that Cicero appeared in such a case, while I myself, when I appeared on behalf of Queen Berenice,c actually pleaded before her. In such cases we must be guided by the same principles that I have laid down above. The opponent of the judge will emphasise his confidence in the justice of his client's cause, while the advocate of his interests will express the fear that the judge may be influenced p17by a quixotic delicacy. 20 Further, if the judge is thought to have come into court with a prejudice in favour of one side, we must try to remove or strengthen that prejudice as circumstances may demand. Again occasionally we shall have to calm the judge's fears, as Cicero does in the pro Milone, where he strives to persuade them not to think that Pompey's soldiers have been stationed in the court as a threat to themselves. Or it may be necessary to frighten them, as Cicero does in the Verrines.3 21 There are two ways of bringing fear to bear upon the judges. The commonest and most popular is to threaten them with the displeasure of the Roman people or the transference of the juries to another class;4 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 judge5 except in the very last resort. 22 But if necessity should drive us to such a course, we must remember that such threats do not come under the art of oratory, any more than appeals from the judgment of the court (though that is often useful), or the indictment of the judge before he gives his decision. For even one who is no orator can threaten or lay an information.

23 If the case affords us the means of winning the favour of the judge, it is important that the points which seem most likely to serve to our purpose should be selected for introduction into the exordium. p19On this subject Verginius falls into error, for he asserts that Theodorus lays down that some one reflexion on each individual question that is involved by the case should be introduced into the exordium. 24 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 is nothing to object to in this rule, save that he would make it of universal application, whereas it is not possible with every question nor desirable in every case. For instance, seeing that the plaintiff's advocate speaks first, and that till he has spoken the judge is ignorant of the nature of the dispute, how is it possible for us to introduce reflexions relating to all the questions involved? The facts of the case must be stated before that can be done. We may grant that some questions may be mentioned, for that will sometimes be absolutely necessary; but can we introduce all the most important questions, or in other words the whole case? If we do we shall have completed our statement of facts within the limits of the exordium. 25 Again if, as often happens, the case is somewhat difficult, surely we should seek to win the good-will of the judge by other portions of our speech sooner than thrust the main questions upon him in all their naked harshness before we have done anything to secure his favour. If the main questions ought always to be treated at the beginning of a speech, we might dispense with the exordium. 26 We shall then occasionally introduce certain points from the main questions into the exordium, which will exercise a valuable influence in winning the judge to regard us with favour. It is not necessary to enumerate p21the points which are likely to gain us such favour, because they will be obvious as soon as we have acquainted ourselves with the circumstances of each dispute, while in view of the infinite variety presented by cases it is out of the question to specify them here. 27 Just, however, as it is in the interest of our case to note and amplify these points, so it is also to rebut or at any rate lessen the force of anything that is damaging to our case. Again our case may justify an appeal to compassion with regard to what we have suffered in the past or are likely to suffer. 28 For I do not share the opinion held by some, that the exordium and the peroration are to be distinguished by the fact that the latter deals with the past, the former with the future. Rather I hold that the difference between them is this: in our opening any preliminary appeal to the compassion of the judge must be made sparingly and with restraint, while in the peroration we may give full rein to our emotions, place fictitious speeches in the mouths of our characters, call the dead to life, and produce the wife or children of the accused in court, practices which are less usual in exordia. 29 But it is the function of the exordium not merely to excite the feelings to which I have alluded, but to do all that is possible to show that our opponent's case is not deserving of them. It is advantageous to create the impression not merely that our fate will be deserving of pity, if we lose, but that our adversary will be swollen with outrageous insolence if he prove successful.

30 But exordia are often drawn from matters which do not, strictly speaking, concern either cases or the person involved, though not unrelated to either. p23In such relation to persons stand not only wives and children of whom I have just spoken, but also relations, friends, and at times districts and states together with anything else that is like to suffer injury from the fall of the client whom we defend. 31 As regards external circumstances6 which have a bearing on the case, I may mention time, which is introduced in the exordium of the pro Caelio, place (in the pro Deiotaro), the appearance of the court (in the pro Milone), public opinion (in the Verrines), and finally, as I cannot mention all, the ill-repute of the law courts and the popular expectation excited by the case. None of these actually belong to the case, but all have some bearing on it. 32 Theophrastus adds that the exordium may be drawn from the speech of one's opponent, as that of the pro Ctesiphonte of Demosthenes appears to be, where he asks that he may be allowed to speak as he pleases and not to be restricted to the form laid down by the accuser in his speech.

33 Confidence often labours under the disadvantage of being regarded as arrogance. But there are certain tricks for acquiring good-will, which though almost universal, are by no means to be neglected, if only to prevent their being first employed against ourselves. I refer to rhetorical expressions of wishing, detestation, entreaty, or anxiety. It keeps the judge's attention on the alert, if he is led to think the case novel, important, scandalous, or likely to set a precedent, still more if he is excited by concern for himself or the common weal, when p25his mind must be stirred by hope, fear, admonition, entreaty and even by falsehood, if it seems to us that it is likely to advance our case. 34 We shall also find it a useful device for wakening the attention of our audience to create the impression that we shall not keep them long and intend to stick closely to the point. The mere fact of such attention undoubtedly makes the judge ready to receive instruction from us, but we shall contribute still more to this effect if we give a brief and lucid summary of the case which he has to try; in so doing we shall be following the method adopted by Homer and Virgil at the beginning of their poems. 35 For as regards the length of the exordium, it should propound rather than expound, and should not describe how each thing occurred, but simply indicate the points on which the orator proposes to speak. I do not think a better example of this can be found than the exordium to the pro Cluentio of Cicero. 36 "I have noted, judges, that the speech for the prosecution was divided into two parts: of these, the first seemed to rest and in the main to rely on the odium, now inveterate, arising from the trial before Junius, while the other appeared to touch, merely as a matter of form, and with a certain timidity and diffidence, on the question of the charge of poisoning, though it is to try this point that the present court has been constituted in accordance with the law." All this, however, is easier for the defender than the prosecutor, since the latter has merely to remind the judge, while the former has to instruct him. 37 Nor shall any authority, however great, induce me to abandon my opinion that it is always desirable to render the judge attentive and ready to receive p27instruction. I am well aware that those who disagree with me urge that it is to the advantage of a bad case that its nature should not be understood; but such lack of understanding arises not from inattention on the part of the judge, but from his being deceived. 38 Our opponent has spoken and perhaps convinced him we must alter his opinion, and this we cannot do unless we render him attentive to what we have to say and ready to be instructed. What are we to do then? I agree to the view that we should cut down, depreciate and deride some of our opponent's arguments with a view to lessening the attention shown him by the judge, as Cicero did in the pro Ligario. 39 For what was the purpose of Cicero's irony save that Caesar should be induced to regard the case as presenting only old familiar features and consequently to give it less attention? What was his purpose in the pro Caelio7 save to make the case seem far more trivial than had been anticipated?

It is, however, obvious that of the rules which I have laid down, some will be applicable to one case and some to another. 40 The majority of writers consider that there are five kinds of causes, the honourable, the mean, the doubtful or ambiguous, the extraordinary and the obscure, or as they are called in Greek, ἔνδοξον, ἄδοξον, ἀμφίδοξον, παράδοξον and δυσπαρακολούθητον. To these some would add a sixth, the scandalous, which some again include under the heading of the mean, others under the extraordinary. 41 The latter name is given to cases which are contrary to ordinary expectation. In ambiguous cases it is specially important to secure the good-will of the judge, in the obscure to render him ready to receive p29instruction, in the mean to excite his attention. As regards the honourable the very nature of the case is sufficient to win the approval of the judge; in the scandalous and extraordinary some kind of palliation is required.

42 Some therefore divide the exordium into two parts, the introduction and the insinuation, making the former contain a direct appeal to the good-will and attention of the judge. But as this is impossible in scandalous cases, they would have the orator on such occasions insinuate himself little by little into the minds of his judges, especially when the features of the case which meet the eye are discreditable, or because the subject is disgraceful or such as to meet with popular disapproval, or again if the outward circumstances of the case are such as to handicap it or excite odium (as for instance when a patron appears against a client or a father against a son), or pity (as when our opponent is an old or blind man or a child). 43 To save the situation the rhetoricians lay down a number of rules at quite inordinate length: they invent fictitious cases and treat them realistically on the lines which would be followed in actual pleading. But these peculiar circumstances arise from such a variety of causes as to render classification by species impossible, and their enumeration save under the most general heads would be interminable. 44 The line to be adopted will therefore depend on the individual nature of each case. As a general principle, however, I should advise the avoidance of points which tell against us and concentrate on those which are likely to be of service. If the case itself is weak, we may derive help from the character of our client; if his character is doubtful, we may find salvation in the nature of p31the case. If both are hopeless, we must look out for something that will damage our opponent. For though it is desirable to secure as much positive good-will as possible, the next best thing is to incur the minimum of actual dislike. 45 Where we cannot deny the truth of facts that are urged against us, we must try to show that their significance has been exaggerated or that the purpose of the act was not what is alleged or that the facts are irrelevant or that what was done may be atoned for by penitence or has already been sufficiently punished. It is consequently easier for an advocate to put forward such pleas than for his client, since the former can praise without laying himself open to the charge of arrogance and may sometimes even reprove him with advantage to the case. 46 At times, like Cicero in his defence of Rabirius Postumus,8 he will pretend that he himself is strongly moved, in order to win the ear of the judge and to give the impression of one who is absolutely convinced of the truth of his cause, that so his statements may find all the readier credence whether he defends or denies the actions attributed to his client. Consequently it is of the first importance, wherever the alternative is open to us, to consider whether we are to adopt the character of a party to the suit or of an advocate. In the schools, of course, we have a free choice in the matter, but it is only on rare occasions that a man is capable of pleading his own case in the actual courts. 47 When we are going to deliver a declamation on a theme that turns largely on its emotional features, we must give it a dramatic character suited to the persons concerned. For emotions are not transferable at will, nor can we give the same forcible expression p33to another man's emotions that we should give to our own. 48 The circumstances which call for insinuation arise also in cases where the pleading of our opponent has made a powerful impression on the minds of the judges, or where the audience whom we have to address are tired. The first difficulty we shall evade by promising to produce our own proofs and by eluding the arguments of our opponents, the second by holding out hopes that we shall be brief and by the methods already mentioned for capturing the attention of the judges. 49 Again an opportune display of wit will often restore their flagging spirits and we may alleviate their boredom by the introduction of entertaining matter derived from any source that may be available. It will also be found advantageous to anticipate the objections that may be raised by our opponent, as Cicero9 does when he says "I know that some persons are surprised that one, who for such a number of years has defended so many and attacked none, should have come forward as the accuser of Verres," he then goes on to show that the accusation which he has undertaken is really a defence of the allies, an artifice known as πρόληψις or anticipation. 50 Although this is at times a useful device, some of our declaimers employ it on practically every occasion, on the assumption that one should always start with the order thus reversed.

The adherents of Apollodorus reject the view stated above to the effect that there are only three respects in which the mind of the judge requires to be prepared, and enumerate many others, relating to the character of the judge, to opinions regarding matters which though outside the case have still p35some bearing on it, to the opinion current as to the case itself, and so on ad infinitum: to these they add others relating to the elements of which every dispute is composed, such as persons, deeds, words, motives, time and place, occasions and the like. 51 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 good-will, attention and readiness to learn on the part of my judge, I cannot see what else I ought to require; even fear, which perhaps may be thought more than anything else to lie outside the considerations I have mentioned, secures the attention of the judge and deters him from favouring our opponent.

52 It is not, however, sufficient to explain the nature of the exordium to our pupils. We must also indicate the easiest method of composing an exordium. I would therefore add that he who has a speech to make should consider what he has to say; before whom, in whose defence, against whom, at what time and place, under what circumstances he has to speak; what is the popular opinion on the subject, what the prepossessions of the judge are likely to be; and finally of what we should express our deprecation or desire. Nature herself will give him the knowledge of what he ought to say first. 53 Nowadays, however, speakers think that anything with which they choose to start is a proem and that whatever occurs to them, especially if it be a reflexiond 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 p37lose effect by being placed elsewhere. 54 A most attractive form of exordium is that which draws its material from the speech of our opponent, if only for the reason that the fact of its not having been composed at home, but having been improvised on the spot to meet the needs of the case increases the orator's reputation for natural talent by the readiness with which it is produced and carries conviction owing to the simple and ordinary language in which it is clothed. As a result, even although the rest of the speech has been committed to writing and carefully elaborated, the whole of the speech will often be regarded as extempore, simply because its commencement is clearly not the result of private study. 55 Indeed a certain simplicity in the thoughts, style, voice and look of the speaker will often produce so pleasing an effect in the exordium that even in a case where there is no room for doubt the confidence of the speaker should not reveal itself too openly. For as a rule the judge dislikes self-confidence in a pleader, and conscious of his rights tacitly demands the respectful deference of the orator. 56 No less care must be taken to avoid exciting any suspicion in this portion of our speech, and we should therefore give no hint of elaboration in the exordium, since any art that the orator may employ at this point seems to be directed solely at the judge. 57 But to avoid all display of art in itself requires consummate art: this admirable canon has been insisted on by all writers, though its force has been somewhat impaired by present conditions, since in certain trials, more especially those brought on capital charges or in the centumviral10 court, the judges themselves demand the most finished and p39elaborate speeches, think themselves insulted, unless the orator shows signs of having exercised the utmost diligence in the preparation of his speech, and desire not merely to be instructed, but to be charmed. 58 It is difficult to preserve the happy mean in carrying this precept into effect: but by a skilful compromise it will be possible to give the impression of speaking with care but without elaborate design. The old rule still holds good that no unusual word, no overbold metaphor, no phrase derived from the lumber-rooms of antiquity or from poetic license should be detected in the exordium. 59 For our position is not yet established, the attention of the audience is still fresh and imposes restraint upon us: as soon as we have won their good-will and kindled their interest, they will tolerate such freedom, more especially when we have reached topics whose natural richness prevents any licence of expression being noticed in the midst of the prevailing splendour of the passage. 60 The style of the 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 ἀνεπίφατος,11 will often be best adapted to insinuate its way into the minds of our hearers. But in all this we must be guided by the extent to which it is expedient to impress the minds of the judges.

61 There is no point in the whole speech where confusion of memory or loss of fluency has a worse effect, p41for a faulty exordium is like a face seamed with scars; and he who runs his ship ashore while leaving port is certainly the least efficient of pilots. 62 The length of the exordium will be determined by the case; simple cases require a short introduction only, longer exordia being best suited to cases which are complicated, suspect or unpopular. As for those who have laid it down as a law applying to all exordia that they should not be more than four sentences long, they are merely absurd. On the other hand undue length is equally to be avoided, lest the head seem to have grown out of all proportion to the body and the judge should be wearied by that which ought to prepare him for what is to follow. 63 The figure which the Greeks call apostrophe, by which is meant the diversion of our words to address some person other than the judge, is entirely banned by some rhetoricians as far as the exordium is concerned, and for this they have some reason, since it would certainly seem to be more natural that we should specially address ourselves to those whose favour we desire to win. 64 Occasionally however some striking expression of thought is necessary in the exordium which can be given greater point and vehemence if addressed to some person other than the judge. In such a case what law or what preposterous superstition is to prevent us from adding force to such expression of our thought by the use of this figure? 65 For the writers of text-books do not forbid it because they regard it as illicit, but because they think it useless. Consequently if its utility be proved, we shall have to employ it for the very reason for which we are now forbidden to do so. 66 Moreover Demosthenes p43turns to address Aeschines in his exordium,12 while Cicero adopts the same device in several of his speeches, but more especially in the pro Ligario,13 where he turns to address Tubero. 67 His speech would have been much less effective, if any other figure had been used, as will be all the more clearly realised, if the whole of that most vigorous passage "You are, then, in possession, Tubero, of the most valuable advantage that can fall to an accuser etc." be altered so as to be addressed to the judge. For it is a real and most unnatural diversion of the passage, which destroys its whole force, if we say "Tubero is then in possession of the most valuable advantage that can fall to an accuser." 68 In the original form Cicero attacks his opponent and presses him hard, in the passage as altered he would merely have pointed out a fact. The same thing results if you alter the turn of the passage in Demosthenes. Again did not Sallust when speaking against Cicero himself address his exordium to him and not to the judge? In fact he actually opens with the words "I should feel deeply injured by your reflexions on my character, Marcus Tullius," wherein he followed the precedent set by Cicero in his speech against Catiline where he opens with the words "How long will you continue to abuse our patience?" 69 Finally to remove all reason for feeling surprise at the employment of apostrophe, Cicero in his defence of Scaurus,14 on a charge of bribery (the speech is to be found in his Notebooks; for he defended him twice) actually introduces an imaginary person speaking on behalf of the accused, while in his pro Rabirio and his speech in defence of this same Scaurus on a charge of extortion he p45employs illustrations, and in the pro Cluentio, as I have already pointed out, introduces division into heads. 70 Still such artifices, although they may be employed at times to good effect, are not to be indulged in indiscriminately, but only when there is strong reason for breaking the rule. The same remark applies to simile (which must however be brief), metaphor and all the tropes, all of which are forbidden by our cautious and pedantic teachers of rhetoric, but which we shall none the less occasionally employ, unless indeed we are to disapprove of the magnificent example of irony in the pro Ligario to which I have already referred a few pages back. 71 The rhetoricians have however been nearer the truth in their censure of certain other faults that may occur in the exordium. The stock exordium which can be suited to a number of different cases they style vulgar; it is an unpopular form but can sometimes be effectively employed and has often been adopted by some of the greatest orators. The exordium which might equally well be used by our opponent, they style common. That which our opponent can turn to his own advantage, they call interchangeable, that which is irrelevant to the case, detached, and that which is drawn from some other speech, transferred. In addition to these they censure others as long and others as contrary to rule. Most of these faults are however not peculiar to the exordium, but may be found in any or every portion of a speech.

72 Such are the rules for the exordium, wherever it is employed. It may however sometimes be dispensed with. For occasionally it is superfluous, if the judge has been sufficiently prepared for our speech without it or if the case is such as to render p47such preparation unnecessary. Aristotle15 indeed says that with good judges the exordium is entirely unnecessary. Sometimes however it is impossible to employ it, even if we desire to do so, when, for instance, the judge is much occupied, when time is short or superior authority forces us to embark upon the subject right away. 73 On the other hand it is at times possible to give the force of an exordium to other portions of the speech. For instance we may ask the judges in the course of our statement of the facts or of our arguments to give us their best attention and good-will, a proceeding which Prodicus recommended as a means of wakening them when they begin to nod. A good example is the following:16 74 "Gaius Varenus, he who was killed by the slaves of Ancharius — I beg you, gentlemen, to give me your best attention at this point." Further if the case involves a number of different matters, each section must be prefaced with a short introduction, such as "Listen now to what follows," or "I now pass to my next point." 75 Even in the proof there are many passages which perform the same function as an exordium, such as the passage in the pro Cluentio17 where Cicero introduces an attack on the censors and in the pro Murena18 when he apologises to Servius. But the practice is too common to need illustration.

76 However on all occasions when we have employed the exordium, whether we intend to pass to the statement of facts or direct to the proof, our intention should be mentioned at the conclusion of the introduction, with the result that the transition to what follows will be smooth and easy. 77 There is indeed a pedantic and childish affectation in vogue in the schools of p49marking the transition by some epigram and seeking to win applause by this feat of legerdemain. Ovid is given to this form of affectation in his Metamorphoses, but there is some excuse for him owing to the fact that he is compelled to weld together subjects of the most diverse nature so as to form a continuous whole. 78 But 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 realise that we have reached that stage. 79 Therefore, although we should not be too abrupt in passing to our statement of facts, it is best to do nothing to conceal our transition. Indeed, if the statement of fact on which we are about to embark is somewhat long and complicated, we shall do well to prepare the judge for it, as Cicero often does, most notably in the following passage:19 "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.


The Translator's Notes:

1 i.e. the statement of the "hard case" with which the declaimer has to deal. cp. IV.II.98.

2 cp. VII.II.4 and 26.

3 i.15.

4 e.g. in the Verrines Cicero points out to the jury, then drawn entirely from senators, that they are on their trial. If they fail in their duty, the constitution of the panels will be altered and the equites be admitted as well.

5 It must be borne in mind that iudex may be a juryman forming one of a large panel, or a single judge trying a civil action.

6 In the pro Caelio (c. 1) Cicero calls attention to the fact that the trial is taking place during a festival, all other legal business being suspended. In the pro Deiotaro (c. 2) he calls attention to the unusual surroundings, the speech being delivered in a private house. For the pro Milone see § 20 of this chapter. In the first Verrine (c.1) he remarks that (p23)it is generally believed that the corruption of the courts is such that it is practically impossible to secure the condemnation of a wealthy man.

7 pro Cael. 31.

8 pro Rab. i.1.

9 Div. in Caec. i.1.

10 The court of the centumviri was specially concerned with cases of inheritance.

11 i.e. unobtrusive.

12 de Cor. § 11.

13 i.2.

14 This speech is lost; the existing speech in his defence is on the charge of extortion.

15 Rhet. iii.14.

16 Cic. pro Var. fr. 8.

17 xlii.117.

18 iii.7.

19 pro Cluent. iv.11.


Thayer's Notes:

a I have completed the third book, and have nearly finished a quarter of my task. The Institutio Oratoria comprises 12 Books, and though the actual text may have been released piecemeal as the topical references in some of the Prefaces seem to show, it bears every mark of having been very carefully planned — with twelve furthermore a standard number of Books for a Roman literary work: so why "nearly a quarter"? (The English translation is not at fault: quarta fere laboris parte transacta.)

Now Quintilian is hardly an author to add superfluous words. Did he plan a thirteenth book? Did he plan some sort of appendix or write one which has not survived? Or did he expect to fine-tune the work, based precisely on feedback from Victorius? This last possibility appeals to me, since it would be a very low-key and thus very flattering way of saying that Quintilian's friend is to some small extent the co‑author of the work.

b calling to my aid all the gods and Himself before them all: appallingly, the "Himself" is the emperor Domitian, whose megalomania knew no bounds. Suetonius is our witness (Dom. 13.2): "With no less arrogance he [Domitian] began as follows in issuing a circular letter in the name of his procurators, 'Our Master and our God bids that this be done.' And so the custom arose of henceforth addressing him in no other way even in writing or in conversation." Quintilian, given his position, was constrained to bend the knee, but this "Himself before them all" seems easy to avoid: one wishes Quintilian had chosen to do so.

c Queen Berenice: Further evidence of Quintilian's entanglement with the ruling house; this is almost certainly the Berenice involved with Domitian's brother Titus, the previous emperor (Suet. Tit. 7), about whom Corneille and Racine wove their unequal plays.

d reflexion: a technical term (Lat. sententia) for a type of epigram much in fashion in Quintilian's time: see XII.X.48‑54.

Page updated: 31 Jan 04