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IV.1

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.3‑5

(Vol. II) Quintilian
Institutio Oratoria

Book IV

Chapter 2

2 1 It is a most natural and frequently necessary proceeding, that after preparing the mind of the judge in the manner described above we should indicate the nature of the subject on which he will have to give judgment: that is the statement of facts. 2 In dealing with this question I shall deliberately pass over the divisions made by certain writers, who make too many classes and err on the side of subtlety. For p51they 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,20 "Marcus Lollius Palicanus, a Picentine of humble birth, a man gifted with loquacity rather than eloquence") or of the place where an incident occurred (as in the sentence21 "Lampsacus, gentlemen, is a town situated on the Hellespont"), or of time at which something occurred (as in the verse22

"In early spring, when on the mountains hoar

The snows dissolve"),

or of the causes of an occurrence, such as the historians are so fond of setting forth, when they explain the origin of a war, a rebellion or a pestilence. 3 Further they style some statements of facts "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's23 remarks about the excitement caused among the friends of Chrysogonus when his name was mentioned), or of the future (a form permissible only to prophets): for hypotyposis or picturesque description cannot be regarded as a statement of facts. 4 However let us pass to matters of more importance.

The majority regard the statement of facts as being indispensable: but there are many considerations which show that this view is erroneous. In the first place there are some cases which are so brief, that they require only a brief summary rather than a full statement of the facts. 5 This may apply to both parties to a suit, as for instance in cases where there is no necessity for explanation or where the facts are p53admitted and the whole question turns on a point of law, as it so often does in the centumviral court, as for example when we discuss, whether the heir of a woman who has died intestate should be her son or brother, or whether puberty is to be reckoned by age or by physical development. The same situation arises also in cases where the facts admit of full statement, but are well known to the judge or have been correctly set forth by a previous speaker. 6 Sometimes again the statement of facts can be dispensed with only by one party, who is generally the plaintiff, either because it is sufficient for him to make a simple summary of 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. 7 Again it is sometimes sufficient and expedient to summarise a case in one sentence such as "I say that Horatius killed his sister." For the judge will understand the whole charge from this simple affirmation: the sequence of events and the motive for the deed will be matters for the defence to expound. 8 On the other hand in some cases the accused may dispense with the statement of facts, when for instance the charge can neither be denied nor palliated, but turns solely on some point of law: the following case will illustrate my meaning. A man who has stolen from a temple money belonging to a private individual is accused of sacrilege: in such a case a confession will be more seemly than a full statement of facts: "We do not deny that the p55money was taken from the temple; but the accuser is bringing a false accusation in charging my client with sacrilege, since the money was not consecrated, but private property: it is for you to decide whether under these circumstances sacrilege has been committed."

9 While however I think that there are occasional cases where the statement of facts may be dispensed with, I disagree with those who say that there is no statement of facts when the accused simply denies the charge. This opinion is shared by Cornelius Celsus who holds that most cases of murder and all of bribery and extortion fall into this class. 10 For he thinks that the only statement of facts is that which gives a general account of the charge before the court. Yet he himself acknowledges that Cicero employed the statement of facts in his defence of Rabirius Postumus, in spite of the fact that Cicero denies that any money came into the hands of Rabirius (and this was the question at issue) and gives no explanations relating to the actual charge in his statement of facts. 11 For my part I follow the very highest authorities in holding that there are two forms of statement of facts in forensic speeches, the one expounding the facts of the case itself, the other setting forth facts which have a bearing on the case. 12 I agree that a sentence such as "I did not kill the man" does not amount to a statement of facts: but there will be a statement of facts, occasionally, too, a long one, in answer to the arguments put forward by the accuser: it will deal with the past life of the accused, with the causes which have brought an innocent man into peril, and other circumstances such as show the charge to be incredible. 13 For the p57accuser does not merely say "You killed him," but sets forth the facts proving his assertion: tragedy will provide an example, where Teucer accuses Ulysses of murdering Ajax, and states that he was found in a lonely place near the lifeless body of his enemy with a blood-stained sword in his hands. To this Ulysses does not merely reply that he did not do the deed, but adds that he had no quarrel with Ajax, the contest between them having been concerned solely with the winning of renown: he then goes on to say how he came to be in the lonely place, how he found Ajax lying lifeless and drew the sword from the wound. 14 But even when the accuser says "You were found on the spot where your enemy was killed" and the accused says "I was not," a statement of facts is involved; for he must say where he was. Consequently cases of bribery and extortion will require as many statements of this kind as there are charges: the charges themselves will be denied, but it will be necessary to counter the arguments of the accuser either singly or all together by setting forth the facts in quite a different light. 15 Is it, I ask you, irrelevant for one accused of bribery to set forth his parentage, his past life and the services on which he relied for success in his candidature? And if a man is indicted for extortion, will it not be to his advantage to set forth not merely his past record, but also the reasons which have made the whole province or the accuser or a witness hostile to himself? 16 If these are not statements of facts, neither is the first portion of Cicero's24 defence of Cluentius, beginning with the words "Aulus Cluentius Habitus." For there he says nothing about the charge p59of poisoning, but confines himself entirely to setting forth the reasons for the hostility of Cluentius' mother to her son. 17 There are also statements which do not set forth the facts of the case itself, but facts which are none the less relevant to the case: the speaker's purpose may be to illustrate the case by some parallel, as in the passage in the Verrines25 about Lucius Domitius who crucified a shepherd because he admitted that he had used a hunting spear to kill the boar which he had brought him as a present; 18 or he may desire to dispel some charge that is irrelevant to the case as in the passage of the speech for Rabirius Postumus,26 which runs as follows; "For when he came to Alexandria, gentlemen, the only means of saving his money which the king suggested to Postumus was that he should take charge of the royal household and act as a kind of steward." Or the orator may desire to heighten the effect of his charges, as Cicero27 does in his description of the journey of Verres.

19 Sometimes a fictitious statement is employed either to stir the emotions of the judges, as in that passage of the pro Roscio Amerino28 dealing with Chrysogonus to which I referred just recently, or to entertain them with a show of wit, as in the passage of the pro Cluentio29 describing the brothers Caepasius: sometimes again a digression may be introduced to add beauty to the speech, as in the passage about Proserpine in the Verrines,30 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.

p61 20 Even the assertion which I made above to the effect that a statement of facts familiar to the judge is superfluous, is not to be taken too literally. My meaning is that it may be dispensed with, if the judge knows not merely what has been done, but takes a view of the facts which is favourable to our case. 21 For the purpose of the statement of facts is not merely to instruct, but rather to persuade the judge. Therefore, when we desire to influence him in some way or other, although he may require no instruction, we shall preface our statement with some such remarks as these: "I know that you are aware of the general nature of the case, but I trust you will not take it ill if I ask you to consider each point in detail." 22 At times again we may pretend that we are repeating the facts for the benefit of some new member of the jury,31 at times that we do so with a view to letting every bystander as well realise the gross unfairness of our opponents' assertions. Under these circumstances our statement must be diversified by a free use of figures to avoid wearying those to whom the facts are familiar: we shall for instance use phrases such as "You remember," "It may perhaps be superfluous to dwell on this point," "But why should I say more, as you are well acquainted with the fact?", "You are not ignorant how this matter stands" and so on. 23 Besides, if we are always to regard as superfluous a statement of facts made before a judge who is familiar with the case, we may even go so far as to regard it as superfluous at times to plead the case at all.

24 There is a further question which is still more frequently raised, as to whether the statement of facts should always follow immediately on the p63exordium. Those who hold that it should always do so must be admitted to have some reason on their side. For since the purpose of the exordium is to make the judge more favourably disposed and more attentive to our case and more amenable to instruction, and since the proof cannot be brought forward until the facts of the case are known, it seems right that the judge should be instructed in the facts without delay. 25 But the practice may be altered by circumstances, unless it is contended that Cicero in his magnificent published defence of Milo delayed his statement too long by placing three questions before it; or unless it is argued that, if it 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 Gnaeus Pompeius, who in addition to exerting his influence in other ways had surrounded the court with an armed guard, had been regarded with apprehension as hostile to the accused, it would have served his case to set forth how Clodius had set an ambush for Milo. 26 These three questions, then, served the purpose of an exordium, since they all of them were designed to prepare the minds of the judges. Again in the pro Vareno Cicero delayed 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 p65concerned to parry our adversary's blows before we strike him ourselves. 27 There will also not infrequently be certain cases, in which it is easy to rebut the charge that is under trial, but the conduct of which is hampered by the past life of our client and the many and serious crimes which he has committed. We must dispose of these first, in order that the judge may give a favourable hearing to our defence of the actual facts which form the question at issue. For example, if we have to defend Marcus Caelius, the best course for his advocate to adopt will be to meet the imputations of luxury, wantonness and immorality which are made against him before we proceed to the actual charge of poisoning. It is with these points that the speech of Cicero in his defence is entirely concerned. Is he then to go on to make a statement about the property of Palla and explain the whole question of rioting, a charge again which Caelius has already defended himself in the speech which he delivered on his own behalf? 28 We however are the victims of the practice of the schools in accordance with which certain points or themes as we call them are put forward for discussion, outside which our refutation must not go, and consequently a statement of facts always follows the exordium. It is this too that leads declaimers to take the liberty of inserting a statement of facts even when they speak second for their side. 29 For when they speak for the prosecution they introduce both a statement of facts, as if they were speaking first, and a refutation of the arguments for the defence, as if they were replying: and they are right in so doing. For since declamation is merely an exercise in forensic pleading, why should they not qualify themselves to p67speak either first or second?32 Those however who do not understand the reason for such a practice, think that when they appear in the courts they should stick to the custom of the schools with which they have become familiar. 30 But even scholastic rhetoricians occasionally substitute a brief summary for the full statement of the facts. For what statement of the case can be made when a wife is accusing a jealous husband of maltreating her, or a father is indicting his son turned Cynic before the censors for indecent behaviour?33 In both cases the charge can be sufficiently indicated by one word placed in any part of the speech. But enough of these points.

31 I will now proceed to the method to be adopted in making our statement of facts. The statement of facts consists in the persuasive exposition of that which either has been done, or is supposed to have been done, or, to quote the definition given by Apollodorus, is a speech instructing the audience as to the nature of the case in dispute. Most writers, more especially those of the Isocratean school, hold that it should be lucid, brief and plausible (for it is of no importance if we substitute clear for lucid, or credible or probable for plausible). 32 I agree with this classification of its qualities, although Aristotle34 disagrees with Isocrates on one point, and pours scorn on his injunction to be brief, as though it were necessary that a statement should be either long or short and it were impossible to hit the happy mean. The followers of Theodorus on the other hand recognise only plausibility on the ground that it is not always expedient that our exposition should be either short or clear. 33 It will be necessary p69therefore for me to devote some care to the differentiation of the various features of this portion of a speech, in order that I may show under what circumstances each is specially useful.

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

36 We shall achieve lucidity and clearness in our statement of facts, first by setting forth our story in words which are appropriate, significant and free from any taint of meanness, but not on the other p71hand farfetched or unusual, and secondly by giving a distinct account of facts, persons, times, places and causes, while our delivery must be adapted to our matter, so that the judge will take in what we say with the utmost readiness. 37 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 claqueurs, and consequently are unnerved by the attentive silence of the courts. They feel that they have fallen short of eloquence, if they do not make everything echo with noise and clamour; they think that to state a matter simply is suited only to everyday speech such as falls within the capacity of any uneducated man, while all the time it is hard to say whether they are less willing or less capable of performing a task which they despise on account of its supposed easiness. 38 For even when they have tried everything, they will never find anything more difficult in the whole range of oratory than that which, once heard, all think they would have said, — a delusion due to the fact that they regard what has been said as having no merit save that of truth. But it is just when an orator gives the impression of absolute truth that he is speaking best. 39 As it is, when such persons as these get a fair field for stating their case, they select this as the precise occasion for affected modulations of the voice, throwing back their heads, thumping their sides and indulging in every kind of extravagance of statement, language and style. As a result, while the speech, from its very monstrosity, meets with applause, the case remains unintelligible. However, let us pass to another subject; my aim is to win favour for p73pointing out the right road rather than to give offence by rebuking such perversity.

40 The statement of facts will be brief, if in the first place we start at that point of the case at which it begins to concern the judge, secondly avoid irrelevance, and finally cut out everything the removal of which neither hampers the activities of the judge nor harms our own case. 41 For frequently conciseness of detail is not inconsistent with length in the whole. Take for instance such a statement as the following: "I came to the harbour, I saw a ship, I asked the cost of a passage, the price was agreed, I went on board, the anchor was weighed, we loosed our cable and set out." Nothing could be terser than these assertions, but it would have been quite sufficient to say "I sailed from the harbour." And whenever the conclusion gives a sufficiently clear idea of the premisses, we must be content with having given a hint which will enable our audience to understand what we have left unsaid. 42 Consequently when it is possible to say "I have a young son," it is quite superfluous to say, "Being desirous of children I took a wife, a son was born whom I acknowledged and reared and brought up to manhood." For this reason some of the Greeks draw a distinction between a concise statement (the word they use is σύντομος) and a brief statement, the former being free from all superfluous matter, while the latter may conceivably omit something that requires to be stated. 43 Personally, when I use the word brevity, I mean not saying less, but not saying more than occasion demands. As for repetitions and tautologies and diffuseness, which some writers of textbooks tell us we must avoid, I pass them by; p75they are faults which we should shun for other reasons beside our desire for brevity. 44 But we must be equally on our guard against the obscurity which results from excessive abridgment, and it is better to say a little more than is necessary than a little less. For though a diffuse irrelevance is tedious, the omission of what is necessary is positively dangerous. 45 We must therefore avoid even the famous terseness of Sallust (though in his case of course it is a merit), and shun all abruptness of speech, since a style which presents no difficulty to a leisurely reader, flies past a hearer and will not stay to be looked at again; and whereas the reader is almost always a man of learning, the judge often comes to his panel from the country side and is expected to give a decision on what he can understand. Consequently we must aim, perhaps everywhere, but above all in our statement of facts, at striking the happy mean in our language, and the happy mean may be defined as saying just what is necessary and just what is sufficient. 46 By "just what is necessary" I mean not the bare minimum necessary to convey our meaning; for our brevity must not be devoid of elegance, without which it would be merely uncouth: pleasure beguiles the attention, and that which delights us ever seems less long, just as a picturesque and easy journey tires us less for all its length than a difficult short cut through an arid waste. 47 And I would never carry my desire for brevity so far as to refuse admission to details which may contribute to the plausibility of our narrative. Simplify and curtail your statement of facts in every direction and you will turn it into something more like a confession. Moreover, the p77circumstances of the case will often necessitate a long statement of facts, in which case, as I have already enjoined, the judge should be prepared for it at the conclusion of the exordium. Next we must put forth all our art either to shorten it or to render it less tedious. 48 We must do what we can to make it less long by postponing some points, taking care however to mention what it is that we propose to postpone. Take the following as an example. "As regards his motives for killing him, his accomplices and the manner in which he disposed his ambush, I will speak when I come to the proof." 49 Some things indeed may be omitted altogether from our marshalling of the facts, witness the following example from Cicero,35 "Fulcinius died; there are many circumstances which attended that event, but as they have little bearing on this case, I shall pass them by." Division of our statement into its various heads is another method of avoiding tedium: for example, "I will tell you first what preceded this affair, than what occurred in its actual development, and finally you shall hear its sequel." 50 Such a division will give the impression of three short statements rather than of one long one. At times it will be well to interrupt our narrative by interjecting some brief remark like the following: "You have heard what happened before: now learn what follows." The judge will be refreshed by the fact that we have brought our previous remarks to a close and will prepare himself for what may be regarded as a fresh start. 51 If however after employing all these artifices our array of facts is still long, it will not be without advantage to append a summary at the end of it as a reminder: Cicero does this even at the close of a p79brief statement of facts in the pro Ligario:36 "To this day, Caesar, Quintus Ligarius is free from all blame: he left his home not merely without the least intention of joining in any war, but when there was not the least suspicion of any war etc."

52 The statement of 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. 53 It is also possible to treat the subject in such a way as to give it an air of credibility, as is done in comedy and farce. For some things have such natural sequence and coherence that, if only the first portion of your statement is satisfactory, the judge will himself anticipate what you have got to say in the later part. 54 It will also be useful to scatter some hints of our proofs here and there, but in such a way that it is never forgotten that we are making a statement of facts and not a proof. Sometimes, however, we must also support our assertions by a certain amount of argument, though this must be short and simple: for instance in a case of poisoning we shall say, "He was perfectly well when he drank, he fell suddenly to the ground, and blackness and swelling of the body immediately supervened." 55 The same result is produced by preparatory p81remarks such as the following: "The accused is a strong man and was fully armed, while his opponents were weak, unarmed and suspecting no evil." We may in fact touch on everything that we propose to produce in our proof, while making our statement of facts, as for instance points connected with persons, cause, place, time, the instrument and occasion employed. 56 Sometimes, when this resource is unavailable, we may even confess that the charge, though true, is scarcely credible, and that therefore it must be regarded as all the more atrocious; that we do not know how the deed was done or why, that we are filled with amazement, but will prove our case. 57 The best kind of preparatory remarks are those which cannot be recognised as such: Cicero,37 for instance, is extraordinarily happy in the way he mentions in advance everything that shows that Clodius lay in wait for Milo and not Milo for Clodius. The most effective stroke of all is his cunning feint of simplicity: "Milo, on the other hand, having been in the senate all day till the house rose, went home, changed his shoes and clothes, and waited for a short time, while his wife was getting ready, as is the way with women." 58 What an absence of haste and premeditation this gives to Milo's proceedings. And the great orator secures this effect not merely by producing facts which indicate the slow and tardy nature of Milo's departure, but by the use of the ordinary language of everyday speech and a careful concealment of his art. Had he spoken otherwise, his words would by their very sound have warned the judge to keep an eye on the advocate. 59 The majority of readers regard this passage as lacking in distinction, but this very fact merely serves p83to show how the art which is scarce detected by a reader succeeded in hoodwinking the judge. It is qualities of this kind that make the statement of facts credible. 60 If a student requires to be told that we must avoid contradiction and inconsistency in our statement of facts, it will be vain to attempt to instruct him on the remaining points, although some writers of text-books produce this precept as if it were a mystery only discovered by their own personal penetration.

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

63 Theodectes asserts that the statement of facts should not merely be magnificent, but attractive in style. But this quality again though suitable enough to the statement of facts, is equally so in other portions of the speech. There are others p85who add palpability, which the Greeks call ἐνάργεια. 64 And I will not conceal the fact that Cicero38 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. 65 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.

66 A chance turn of the discussion has led us to a difficult type of statement of facts. I will therefore proceed to speak of those in which the facts are against us. Under such circumstances some have held that we should omit the statement of facts altogether. Nothing can be more easy, except perhaps to throw up the case altogether. But suppose you undertake a case of this kind with some good reason. It is surely the worst art to admit the badness of the case by keeping silence. We can hardly hope that the judge will be so dense as to give a decision in favour of a case which he knows we were unwilling to place before him. 67 I do not of course deny that just as there may be some points which you should deny in your statement p87of facts, others which you should add, and yet again others that you should alter, so there may be some which you should pass over in silence. But still only those points should be passed over which we ought and are at liberty to treat in this way. This is sometimes done for the sake of brevity, as in the phrase "He replied as he thought fit." 68 We must therefore distinguish between case and case. In those where there is no question of guilt but only of law, we may, even though the facts 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 father39 can have no option as to his fate. 69 He assaulted a freeborn boy, and the latter hanged himself, but that is no reason for the author of the assault to be awarded capital punishment as having caused his death; he will instead pay 10,000 sesterces, the fine imposed by law for such a crime." But even in making these admissions we may to some extent lessen the odium caused by the statement of our opponent. For even our slaves extenuate their own faults. 70 In some cases, too, we may mitigate a bad impression by words which avoid the appearance of a statement of facts. We may say, for instance, "He did not, as our opponent asserts, enter the temple with the deliberate intention of theft nor seek a favourable occasion for the purpose, but was led astray by the opportunity, the absence of custodians, and the sight of the money (and money has always an undue influence on the mind of man), and so yielded to temptation. What does that matter? He committed the offence and is a thief. It is p89useless to defend an act to the punishment of which we can raise no objection." 71 Again we may sometimes go near condemning our client ourselves. "Do you wish me to say that you were under the influence of wine? that you made a mistake? that the darkness deceived you? That may be true. But still you committed an assault on a freeborn boy; pay your 10,000 sesterces." Sometimes we may fortify our case in advance by a preliminary summary, from which we proceed to the full statement of facts. 72 All the evidence points to the guilt of three sons who had conspired against their father. After drawing lots they entered their father's bedroom while he slept, one following the other in the order predetermined and each armed with a sword. None of them had the heart to kill him, he woke and they confessed all. 73 If, however, the father, who has divided his estate among them and is defending them when accused of parricide, pleads as follows: "As regards my defence against the law, it suffices to point out, that these young men are charged with parricide in spite of the fact that their father still lives and is actually appearing on behalf of his children. What need is there for me to set forth the facts as they occurred since the law does not apply to them? But if you desire me to confess my own guilt in the matter, I was a hard father to them and watched over my estate, which would have been better managed by them, with miserly tenacity." 74 And if he then should add, "they were spurred to attempt the crime by others who had more indulgent fathers; but their real feelings towards their father have been proved by the result; they could not bring themselves to p91kill him. It would have been quite unnecessary for them to take an oath to kill him, if they had really had the heart to do the deed, while the only explanation of their drawing lots is that each of them wished to avoid the commission of the crime." If such were his pleading, all these pleas would, such as they are, find the judges all the more disposed to mercy, since the brief defence offered in the first summary statement would have paved the way for them. 75 But if the question is whether an act has been committed or what its nature may be, even though everything be against us, how can we avoid a statement of facts without gross neglect of our case? The accuser has made a statement of facts, and has done so not merely in such a way as to indicate what was done, but has added such comments as might excite strong prejudice against us and made the facts seem worse than they are by the language which he has used. On the top of this have come the proofs, while the peroration has kindled the indignation of the judges and left them full of anger against us. 76 The judge naturally waits to hear what we can state in our behalf. If we make no statement, he cannot help believing that our opponent's assertions are correct and that their tone represents the truth. What are we to do then? Are we to restate the same facts? Yes, if the question turns on the nature of the act, as it will if there is no doubt about the commission, but we must restate them in a different way, alleging other motives and another purpose and putting a different complexion on the case. 77 Some imputations we may mitigate by the use of other words; luxury will be softened down into generosity, p93avarice into economy, carelessness into simplicity, and I shall seek to win a certain amount of favour or pity by look, voice and attitude. Sometimes a frank confession is of itself sufficient to move the jury to tears. And I should like to ask those who differ from me whether they are prepared to defend what they have refused to state, or no. 78 For if they refuse either to defend or to state the facts, they will be giving away their whole case. If, on the other hand, they do propose to put in a defence, they must at least, as a rule, set forth what they intend to justify. Why then not state fully facts which can be got rid of and must in fact be pointed out to make that possible? 79 Or again what difference is there between a proof and a statement of facts save that the latter is a proof put forward in continuous form, while a proof is a verification of the facts as put forward in the statement? Let us consider therefore whether under such circumstances the statement should not be somewhat longer and fuller than usual, since we shall require to make some preliminary remarks and to introduce certain special arguments (note that I say arguments, and not argumentation), while it will add greatly to the force of our defence if we assert not once nor twice that we shall prove what we say is true and that the significance of the facts cannot be brought out by one opening statement, bidding them wait, delay forming their opinions and hope for the best. 80 Finally it is important to include in our statement anything that can be given a different complexion from that put upon it by our opponent. Otherwise even an exordium will be superfluous in a case of this kind. For what is its purpose if p95not to make the judge better disposed for the investigation of the case? And yet it will be agreed that the exordium is never more useful than when it is necessary to divert the judge from some prejudice that he has formed against us. 81 Conjectural40 cases, on the other hand — that is to say questions of fact — require a statement, which will more often deal with the circumstances from which a knowledge of the point at issue may be derived than with the actual point which is under trial. When the accuser states these circumstances in such a manner as to throw suspicion on the case for the defence, and the accused has consequently to dispel that suspicion, the facts must be presented to the judge in quite a different light by the latter. 82 But, it may be urged, some arguments are strong when put forward in bulk, but far less effective when employed separately. My answer is that this remark does not affect the question whether we ought to make a statement of fact, but concerns the question how it should be made. For what is there to prevent us from amassing and producing a number of arguments in the statement, if that is likely to help our cause? Or from subdividing our statement of facts and appending the proofs to their respective sections and so passing on to what remains to be said? 83 Neither do I agree with those who assert that the order of our statement of facts should always follow the actual order of events, but have a preference for adopting the order which I consider most suitable. For this purpose we can employ a variety of figures. Sometimes, when we bring up a point in a place better suited to our purpose, we may pretend that it had escaped our notice; p97occasionally, too, we may inform the judge that we shall adhere to the natural order for the remainder of our statement, since by so doing we shall make our case clearer, while at times after stating a fact, we may append the causes which preceded it. 84 For there is no single law or fixed rule governing the method of defence. We must consider what is most advantageous in the circumstances and nature of the case, and treat the wound as its nature dictates, dressing at once or, if the dressing can be delayed, applying a temporary bandage. 85 Again I do not regard it as a crime to repeat a statement of facts more than once, as Cicero does in the pro Cluentio. It is not merely permissible, but sometimes necessary, as in trials for extortion and all complicated cases; and only a lunatic will allow a superstitious observance of rules to lead him counter to the interests of his case. 86 The reason for placing the statement of facts before the proof is to prevent the judge from being ignorant of the question at issue. Why then, if each individual point has to be proved or refuted, should not each individual point be stated as well? If my own experience may be trusted, I know that I have followed this practice in the courts, whenever occasion demanded it, and my procedure has been approved both by learned authorities and the judges themselves, while the duty of setting forth the case was generally entrusted to me. I am not boasting, for there are many with whom I have been associated as counsel, who can bring me to book if I lie. 87 On the other hand this is no reason for not following the order of events as a general rule. Indeed inversion of the order has at times a most unhappy effect, as for example if you should mention p99first 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.

88 Sometimes, too, we get false statements of facts; these, as far as actual pleading in the courts is concerned, fall into two classes. In the first case the statement depends on external support; Publius Clodius, for instance, relied on his witnesses when he stated that he was at Interamna on the night when he committed abominable sacrilege at Rome. The other has to be supported by the speaker's native talent, and sometimes consists simply in an assumption of modesty, which is, I imagine, the reason why it is called a gloss,41 while at other times it will be concerned with the question at issue. 89 Whichever of these two forms we employ, we must take care, first that our fiction is within the bounds of possibility, secondly that it is consistent with the persons, dates and places involved and thirdly that it presents a character and sequence that are not beyond belief: if possible, it should be connected with something that is admittedly true and should be supported by some argument that forms part of the actual case. For if we draw our fictions entirely from circumstances lying outside the case, the liberty which we have taken in resorting to falsehood will stand revealed. 90 Above all we must see that we do not contradict ourselves, a slip which is far from rare on the part of spinners of fiction: for some things may put a most favourable complexion on portions of our case, and yet fail to agree as a whole. Further, what we say p101must not be at variance with the admitted truth. Even in the schools, if we desire a gloss, we must not look for it outside the facts laid down by our theme. 91 In either case the orator should bear clearly in mind throughout his whole speech what the fiction is to which he has committed himself, since we are apt to forget our falsehoods, and there is no doubt about the truth of the proverb that a liar should have a good memory. 92 But whereas, if the question turns on some act of our own, we must make one statement and stick to it, if it turns on an act committed by others, we may cast suspicion on a number of different points. In certain controversial themes of the schools, however, in which it is assumed that we have put a question and received no reply, we are at liberty to enumerate all the possible answers that might have been given. 93 But we must remember only to invent such things as cannot be checked by evidence: I refer to occasions when we make our own minds speak (and we are the only persons who are in their secret) or put words in the mouth of the dead (for what they say is not liable to contradiction) or again in the mouth of someone whose interests are identical with ours (for he will not contradict), or finally in the mouth of our opponent (for he will not be believed if he does deny). 94 Glosses drawn from dreams and superstitions have long since lost their value, owing to the very ease with which they can be invented. But it will avail us little to use glosses in a statement of facts, unless they are consistent throughout the whole of our speech, more especially as certain things can only be proved by persistent assertion. 95 Take for instance the case of the parasite who claims as his son a young man who has been p103thrice 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 rôle of a parasite because his son was in the house in question and, lastly, that the reason why the young man was thrice disinherited was simply that he was not the son of the man who disinherited him. 96 But unless every word that he utters reveals an ardent paternal affection, hatred for his wealthy opponent and anxiety on behalf of the youth, who will, he knows, be exposed to serious danger if he remains in the house where he is the victim of such dislike, he will be unable to avoid creating the suspicion that he has been suborned to bring the action.

97 It sometimes happens in the controversial themes of the schools, though I doubt whether it could ever occur in the courts, that both sides employ the same gloss and support it on their own behalf. 98 An example of this may be found in the theme which runs as follows. "A wife has stated to her husband that her stepson has attempted to seduce her and that a time and place have been assigned for their meeting: the son has brought the same charge against his stepmother, with the exception that a different time and place are mentioned. The father finds the son in the place mentioned by the wife, and the wife in the place mentioned by the son. He divorces her, and then, as she says nothing in her own defence, disinherits the son." No defence can be put forward for the son which is not also a defence of the stepmother. 99 However, what is common to both sides of the case will be stated, and then arguments will be drawn from a comparison of p105the characters of the two parties, from the order in which they laid information against each other and from the silence of the divorced wife. 100 Still we must not ignore the fact that there are some cases which do not admit of any form of gloss, but must be defended forthright. An example is provided by the case of the rich man who scourged the statue of a poor man who was his enemy, and was subsequently indicted for assault. Here no one can deny that the act was outrageous, but it may be possible to maintain that it is not punishable by law.

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

103 Further rules are laid down with regard to the p107statement of fact, forbidding us to indulge in digression, apostrophe or argumentation or to put our 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. 104 If our statement is to be clear and brief, almost anything can be justified sooner than digression. And if we do introduce a digression, it must always be short and of such a nature that we give the impression of having been forced from our proper course by some uncontrollable emotion. The passage in Cicero42 about the marriage of Sasia is a good example of this. 105 "What incredible wickedness in a woman! Unheard of in the history of mankind till she dared the sin! What unbridled and unrestrained lust, what amazing daring! One might have thought that, even if she had no regard for the vengeance of heaven and the opinion of man, she would at least have dreaded that night of all nights and those torches that lighted her to the bridal bed: that she would have shrunk in horror from the threshold of her chamber, from her daughter's room and the very walls that had witnessed her former marriage." 106 As to addressing another in place of the judge, it may be a means of making a point with greater brevity and give it greater force. On this subject I hold the same view that I expressed in dealing with the exordium, as I do on the subject of impersonation. This artifice however is employed not only by Servius Sulpicius in his speech on behalf of Aufidia, when he cries "Am I to suppose that you were drowsed with sleep or weighed down by some p109heavy lethargy?" but by Cicero43 as well, when in a passage which, like the above, belongs to the statement of facts, in speaking of the ships' captains he says, "You will give so much to enter, etc." 107 Again in the pro Cluentio44 does not the conversation between Staienus and Bulbus conduce to speed and enhance the credibility of the statements? In case it should be thought that Cicero did this without design (quite an incredible supposition in his case), I would point out that in the Partitiones45 he lays it down that the statement of facts should be characterised by passages which will charm and excite admiration or expectation, and marked by unexpected turns, conversations between persons and appeals to every kind of emotion. 108 We shall, as I have already said, never argue points in the statement of facts, but we may sometimes introduce arguments, as for example Cicero does in the pro Ligario,46 when he says that he ruled his province in such a way that it was to his interest that peace should continue. We shall sometimes also, if occasion demand, insert a brief defence of the facts in the statement and trace the reasons that led up to them. 109 For we must state our facts like advocates, not witnesses. A statement in its simplest form will run as follows, "Quintus Ligarius went out as legate to C. Considius." But how will Cicero47 put it? "Quintus Ligarius," he says, "set out for Africa as legate to Gaius Considius at a time when there was no thought of war." 110 And again elsewhere48 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 p111said no more than "Quintus Ligarius would not suffer himself to be entangled in any transaction,"49 he adds "for he had his eyes fixed on home and wished to return to his own people." Thus he made what he stated credible by giving a reason for it and at the same time coloured it with emotion.

111 I am therefore all the more surprised at those who hold that there should be no appeal to the emotions in the statement of facts. If they were to say "Such appeals should be brief and not on the scale on which they are employed in the peroration," I should agree with them; for it is important that the statement should be expeditious. But why, while I am instructing the judge, should I refuse to move him as well? 112 Why should I not, if it is possible, obtain that effect at the very opening of the case which I am anxious to secure at its conclusion, more especially in view of the fact that I shall find the judge far more amenable to the cogency of my proof, if I have previously filled his mind with anger or pity? 113 Does not Cicero,50 in his description of the scourging of a Roman citizen, in a few brief words stir all the emotions, not merely by describing the victim's position, the place where the outrage was committed and the nature of the punishment, but also by praising the courage with which he bore it? For he shows us a man of the highest character who, when beaten with rods, uttered not a moan nor an entreaty, but only cried that he was a Roman citizen, thereby bringing shame on his oppressor and showing his confidence in the law. 114 Again does he not throughout the whole of his statement excite the warmest indignation at the misfortunes of Philodamus51 and move p113us even to tears when he speaks of his punishment and describes, or rather shows us as in a picture, the father weeping for the death of his son and the son for the death of his father? 115 What can any peroration present that is more calculated to stir our pity? If you wait for the peroration to stir your hearer's emotions over circumstances which you have recorded unmoved in your statement of facts, your appeal will come too late. The judge is already familiar with them and hears their mention without turning a hair, since he was unstirred when they were first recounted to him. Once the habit of mind is formed, it is hard to change it.

116 For my own part (for I will not conceal my opinion, though it rests rather on actual examples than on rules), I hold that the statement of 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. 117 In slighter cases, such as are the majority of private suits, the decoration must be restrained and fit close to the subject, while the utmost care must be exercised in choice of words. The words which in our purple passages are swept along by the force of our eloquence and lost in the profusion of our language, must in cases such as these be clear and, as Zeno says, "steeped with meaning." The rhythm should be unobtrusive, but as attractive as possible, 118 while the figures must neither be derived from poetry nor such as are contrary to current usage, though warranted by the authority of antiquity (for it is important that our language should be entirely normal), but should be designed to relieve tedium by their variety and should be frequently p115changed to relax the strain of attention. Thus we shall avoid repeating the same terminations and escape monotony and a stereotyped turn of phrase. For the statement of facts lacks all the other allurements of style and, unless it is characterised by this kind of charm, will necessarily fall flat. 119 Moreover there is no portion of a speech at which the judge is more attentive, and consequently nothing that is well said is lost. And the judge is, for some reason or other, all the more ready to accept what charms his ear and is lured by pleasure to belief. 120 When on the other hand the subject is on a larger scale, we have a chance to excite horror by our narration of abominable wrongs or pity by a tale of woe: but we must do so in such a way as not to exhaust our stock of emotions on the spot, but merely to indicate our harrowing story in outline so that it may at once be clear what the completed picture is like to be. 121 Again I am far from disapproving of the introduction of some striking sentence designed to stimulate the judge's jaded palate. The best way of so doing is the interposition of a short sentence like the following: "Milo's slaves did what everyone would have wished his own slaves to do under similar circumstances":52 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."53 122 If this was done in days when every speech was designed for practical purposes rather than display and the courts were far stricter than to‑day, how much more should we do it now, when the passion for producing a p117thrill of pleasure has forced its way even into cases where a man's life or fortunes are in peril? I shall say later to what extent I think we should indulge popular taste in this respect: in the meantime I shall admit that some such indulgence is necessary. 123 A powerful effect may be created if to the actual facts of the case we add a plausible picture of what occurred, such as will make our audience feel as if they were actual eyewitnesses of the scene. Such is the description introduced by Marcus Caelius in his speech against Antonius. "For they found him lying prone in a drunken slumber, snoring with all the force of his lungs, and belching continually, while the most distinguished of his female companions sprawled over every couch, and the rest of the seraglio lay round in all directions. 124 They however perceived the approach of the enemy and, half-dead with terror, attempted to arouse Antonius, called him by name, heaved up his head, but all in vain, while one whispered endearing words into his ear, and another slapped him with some violence. At last he recognised the voice and touch of each and tried to embrace her who happened to be nearest. Once wakened he could not sleep, but was too drunk to keep awake, and so was bandied to and fro between sleeping and waking in the hands of his centurions and his paramours." Could you find anything more plausible in imagination, more vehement in censure or most vivid in description?

125 There is another point to which I must call attention, namely the credit which accrues to the statement of facts from the authority of the speaker. Now such authority should first and foremost be the reward of our manner of life, but may also be conferred p119by our style of eloquence. For the more dignified and serious our style, the greater will be the weight that it will lend to our assertions. 126 It is therefore specially important in this part of our speech to avoid anything suggestive of artful design, for the judge is never more on his guard than at this stage. Nothing must seem fictitious, nought betray anxiety; everything must seem to spring from the case itself rather than the art of the orator. 127 But our modern orators cannot endure this and imagine that their art is wasted unless it obtrudes itself, whereas as a matter of fact the moment it is detected it ceases to be art. We are the slaves of applause and think it the goal of all our effort. And so we betray to the judges what we wish to display to the bystanders.

128 There is also a kind of repetition of the statement which the Greeks call ἐπιδιήγησις. It belongs to declamation rather than forensic oratory, and was invented to enable the speaker (in view of the fact that the statement should be brief) to set forth his facts at greater length and with more profusion of ornament, as a means of exciting indignation 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 a repetition only of parts. Anyone, however, who desires to employ this form of repetition, should touch but lightly on the facts when making his statement and should content himself with merely indicating what was done, while promising to set forth how it was done more fully when the time comes for it.

129 Some hold that the statement of facts should always begin by referring to some person, whom we must p121praise if he is on our side, and abuse if he is on the side of our opponents. It is true that this is very often done for the good reason that a law-suit must take place between persons. 130 Persons may however also be introduced with all their attendant circumstances, if such a procedure is likely to prove useful. For instance, "The father of my client, gentlemen, was Aulus Cluentius Habitus, a man whose character, reputation and birth made him the leading man not only in his native town of Larinum, but in all the surrounding district."54 131 Or again they may be introduced without such circumstances, as in the passage beginning "For Quintus Ligarius etc."55 Often, too, we may commence with a fact as Cicero does in the pro Tullio:56 "Marcus Tullius has a farm which he inherited from his father in the territory of Thurium," or Demosthenes in the speech in defence of Ctesiphon,57 — "On the outbreak of the Phocian war."

132 As regards the conclusion of the statement of facts, there is a controversy with those who would have the statement end where the issue to be determined begins. Here is an example. "After these events the praetor Publius Dolabella issued an interdict in the usual form dealing with rioting and employment of armed men, ordering, without any exception, that Aebutius should restore the property from which he had ejected Caecina. He stated that he had done so. A sum of money was deposited. It is for you to decide to whom this money is to go."58 This rule can always be observed by the prosecutor, but not always by the defendant.


The Translator's Notes:

20 Sall. Hist. iv.25.

21 Cic. Verr. I.XXIV.63.

22 Verg. G. I.43.

23 pro Rosc. Am. xxii.60.

24 v.11.

25 v.3. The shepherd was crucified because the carrying of arms was forbidden.

26 x.28. The charge in question was that Rabirius had worn the Greek pallium instead of the Roman toga. But as an official of the king he was forced to wear Greek dress.

27 Verr. v.10.

28 xxii.60.

29 xx.57 sqq.

30 iv.48. The words quoted do not occur in our MSS. of Cicero.

31 i.e. introduced to fill the place of a juror who had had to leave the jury.

32 See note prefixed to index.

33 See Index, s.v. Cynicus.

34 Rhet. iii.16.

35 pro Caec. iv.11.

36 pro Lig. ii.4.

37 pro Mil. x.28.

38 Top. xxvi.97.

39 The victim can claim either that the ravisher should marry her or be put to death. Her father cannot however make either of these demands on her behalf.

40 For this technical term = cases turning on questions of fact, see III.VI.30 sqq.

41 color is a technical term for "the particular aspect given to a case by the skilful manipulation of the facts — the 'gloss' or 'varnish' put on them by the accused or accuser." — Peterson on Quint. x.i.116.

42 pro Clu. vi.15.

43 Verr. V.XLV.118.

44 pro Clu. xxvi.

45 ix.31.

46 ii.4. Ligarius was accused of having fought for the Pompeians in Africa. Cicero points out that he went out to Africa before the outbreak of the war was dreamed of and that his whole attitude was discreet.

47 pro Lig. i.2.

48 ib. ii.4.

49 pro Lig. i.3.

50 Verr. v.62. A Roman citizen might not be scourged. cp. St. Paul.

51 ib. i.30.

52 pro Mil. x.29.

53 pro Clu. v.14.

54 pro Cluent. v.11.

55 pro Lig. i.2.

56 pro Tull. vi.14.

57 § 18.

58 Cic. pro Caec. viii.23.


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