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This webpage reproduces a section of
Institutio Oratoria


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

The text is in the public domain.

This page has been carefully proofread
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(Vol. II) Quintilian
Institutio Oratoria

Book IV

Chapters 3‑5

3 1 In the natural order of things the statement of facts is followed by the verification. For it  p123 is necessary to prove the points which we stated with the proof in view. But before I enter on this portion, I have a few words to say on the opinions held by certain rhetoricians. Most of them are in the habit, as soon as they have completed the statement of facts, of digressing to some pleasant and attractive topic with a view to securing the utmost amount of favour from their audience. 2 This practice originated in the display of the schools of declamation and thence extended to the courts as soon as causes came to be pleaded, not for the benefit of the parties concerned, but to enable the advocates to flaunt their talents. I imagine that they feared that if the slender stream of concise statement, such as is generally required, were followed by the pugnacious tone inevitable in the arguing of the case, the speech would fall flat owing to the postponement of the pleasures of a more expansive eloquence. 3 The objection to this practice lies in the fact that they do this without the slightest consideration of the difference between case and case or reflecting whether what they are doing will in any way assist them, on the assumption that it is always expedient and always necessary. Consequently they transfer striking thoughts from the places which they should have occupied elsewhere and concentrate them in this portion of the speech, a practice which involves either the repetition of a number of things that they have already said or their omission from the place which was really theirs owing to the fact that they have already been said. 4 I admit however that this form of digression can be advantageously appended, not merely to the statement of facts, but to each of the different questions or to the questions as a whole,  p125 so long as the case demand, or at any rate permit it. Indeed such a practice confers great distinction and adornment on a speech, but only if the digression fits in well with the rest of the speech and follows naturally on what has preceded, not if it is thrust in like a wedge parting what should naturally come together. 5 For there is no part of a speech so closely connected with any other as the statement with the proof, though of course such a digression may be intended as the conclusion of the statement and the beginning of the proof. There will therefore sometimes be room for digression; for example if the end of the statement has been concerned with some specially horrible theme, we may embroider the theme as though our indignation must find immediate vent. 6 This, however, should only be done if there is no question about the facts. Otherwise it is more important to verify your charge than to heighten it, since the horrible nature of a charge is in favour of the accused, until the charge is proved. For it is just the most flagrant crimes that are the most difficult to prove. 7 Again a digression may be advantageous if after setting forth the services rendered by your client to his opponent you denounce the latter for his ingratitude, or after producing a variety of charges in your statement, you point out the serious danger in which the advancement of such charges is likely to involve you. 8 But all these digressions should be brief. For as soon as he has heard the facts set forth in order, the judge is in a hurry to get to the proof and desires to satisfy himself of the correctness of his impressions at the earliest possible moment. Further, care must be taken not to nullify the effect of the statement by  p127 diverting the minds of the court to some other theme and wearying them by useless delay.

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

Such passages may also serve as a kind of peroration after the main question. 12 The Greeks call this παρέκβασις, the Romans egressus or egressio (digression). They may however, as I have said, be of various kinds and may deal with different themes in any portion of the speech. For instance we may extol persons or places, describe regions, record historical or even legendary occurrences. 13 As examples I may cite the praise of Sicily and the rape of  p129 of Proserpine58 in the Verrines, or the famous recital of the virtues of Gnaeus Pompeius in the pro Cornelio,59 where the great orator as though the course of his eloquence had been broken by the mere mention of the general's name, interrupts the topic on which he had already embarked and digresses forthwith to sing his praises. 14 Παρέκβασις may, I think, be defined as the handling of some theme, which must however have some bearing on the case, in a passage that involves digression from the logical order of our speech. I do not see therefore why it should be assigned a special position immediately following on the statement of facts any more than I understand why they think that the name is applicable only to a digression where some statement has to be made, when there are so many different ways in which a speech may leave the direct route. 15 For whatever we say that falls outside the five divisions of the speech already laid down is a digression, whether it expresses indignation, pity, hatred, rebuke, excuse, conciliation or be designed to rebut invective. Other similar occasions for digression on points not involved by the question at issue arise when we amplify or abridge a topic, make any kind of emotional appeal or introduce any of those topics which add such charm and elegance to oratory, topics that is to say such as luxury, avarice, religion, duty: but these would hardly seem to be digressions as they are so closely attached to arguments on similar subjects that they form part of the texture of the speech. 16 There are however a number of topics which are inserted in the midst of matter which has no connexion with them, when for example we strive to excite, admonish, appease, entreat or praise the judge. Such passages are  p131 innumerable. Some will have been carefully prepared beforehand, while others will be produced to suit the occasion or the necessity of the moment, if anything extraordinary should occur in the course of our pleading, such as an interruption, the intervention of some individual or a disturbance. 17 For example, this made it necessary for Cicero to digress even in the exordium when he was defending Milo, as is clear from the short speech60 which he made on that occasion. But the orator who makes some preface to the main question or proposes to follow up his proofs with a passage designed to commend them to the jury, may digress at some length. On the other hand, if he breaks away in the middle of his speech, he should not be long in returning to the point from which he departed.

4 1 After the statement of facts some place the proposition61 which they regard as forming a division of a forensic speech. I have already expressed my opinion of this view.62 But it seems to me that the beginning of every proof is a proposition, such as often occurs in the demonstration of the main question and sometimes even in the enunciation of individual arguments, more especially of those which are called ἐπιχειρήματα.63 But for the moment I shall speak of the first kind. It is not always necessary to employ it. 2 The nature of the main question is sometimes sufficiently clear without any proposition, especially if the statement of facts ends exactly where the question begins. Consequently the recapitulation generally employed in the case of arguments is sometimes placed immediately after the statement of facts. "The affair took place, as I have described, gentlemen: he that laid the ambush was defeated,  p133 violence was conquered by violence, or rather I should say audacity was crushed by valour."64 3 Sometimes proposition is highly advantageous, more especially when the fact cannot be defended and the question turns on the definition of the fact; as for example in the case of the man who has taken the money of a private individual from a temple: we shall say, "My client is charged with sacrilege. It is for you to decide whether it was sacrilege," so that the judge may understand that his sole duty is to decide whether the charge is tantamount to sacrilege. 4 The same method may be employed in obscure or complicated cases, not merely to make the case clearer, but sometimes also to make it more moving. This effect will be produced, if we at once support our pleading with some such words as the following: "It is expressly stated in the law that for any foreigner who goes up on to the wall the penalty is death. You are undoubtedly a foreigner, and there is no question but that you went up on to the wall. The conclusion is that you must submit to the penalty." For this proposition forces a confession upon our opponent and to a certain extent accelerates the decision of the court. It does more than indicate the question, it contributes to its solution.

5 Propositions may be single, double or manifold: this is due to more than one reason. For several charges may be combined, as when Socrates was accused of corrupting the youth and of introducing new superstitions; while single propositions may be made up of a number of arguments, as for instance when Aeschines is accused of misconduct as an ambassador on the ground that he lied, failed to  p135 carry out his instructions, wasted time and accepted bribes. 6 The defence may also contain several propositions: for instance against a claim for money we may urge, "Your claim is invalid; for you had no right to act as agent nor had the party whom you represent any right to employ an agent: further, he is not the heir of the man from whom it is asserted that I borrowed the money, nor am I his debtor." 7 These propositions can be multiplied at pleasure, but it is sufficient to give an indication of my meaning. If propositions are put forward singly with the proofs appended, they will form several distinct propositions: if they are combined, they all under the head of partition.

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

 p137  9 We may at times produce the effect of a proposition, even though it is not in itself a proposition, by adding after the statement of facts some phrase such as the following: "These are the points on which you will give your decision," thereby reminding the judge to give special attention to the question and giving him a fillip to emphasise the point that we have finished the statement of facts and are beginning the proof, so that when we start to verify our statements he may realise that he has reached a fresh stage where he must begin to listen with renewed attention.

5 1 Partition may be defined as the enumeration in order of our own propositions, those of our adversary or both. It is held by some that this is indispensable on the ground that it makes the case clearer and the judge more attentive and more ready to be instructed, if he knows what we are speaking about and what we are going subsequently to speak about. 2 Others, on the contrary, think that such a course is dangerous to the speaker on two grounds, namely that sometimes we may forget to perform what we have promise and may, on the other hand, come upon something which we have omitted in the partition. But this will never happen to anyone unless he is either a fool or has come into court without thinking out his speech in detail beforehand. 3 Besides, what can be simpler or clearer than a straightforward partition? It follows nature as a guide and the adhesion to a definite method is actually of the greatest assistance to the speaker's memory. Therefore I cannot approve the view even of those who lay down that partition should not extend beyond the length of three propositions. No doubt there is a danger, if our partition is too complicated, that it  p139 may slip the memory of the judge and disturb his attention. But that is no reason why it should be tied down to a definite number of propositions, since the case may quite conceivably require more. 4 There are further reasons why we should sometimes dispense with partition. In the first place there are many points which can be produced in a more attractive manner, if they appear to be discovered on the spot and not to have been brought ready made from our study, but rather to have sprung from the requirements of the case itself while we were speaking. Thus we get those not unpleasing figures such as "It has almost escaped me," "I had forgotten," or "You do well to remind me." For if we set forth all that we propose to prove in advance, we shall deprive ourselves of the advantage springing from the charm of novelty. 5 Sometimes we shall even have to hoodwink the judge and work upon him by various artifices so that he may think that our aim is other than it really is. For there are cases when a proposition may be somewhat startling: if the judge foresees this, he will shrink from it in advance, like a patient who catches sight of the surgeon's knife before the operation. On the other hand, if we have given him no preliminary notice and our words take him unawares, without his interest in them having been previously roused by any warning, we shall gain a credence which we should not have secured had we stated that we were going to raise et point. 6 At times we must not merely avoid distinguishing between the various questions, but must omit them altogether, while our audience must be distracted by appeals to the emotion and their attention diverted. For the duty of the orator is not  p141 merely to instruct: the power of eloquence is greatest in emotional appeals. Now there is no room for passion if we devote our attention to minute and microscopic division at a time when we are seeking to mislead the judgment of the person who is trying the case. 7 Again, there are certain arguments which are weak and trivial when they stand alone, but which have great force when produced in a body. We must, therefore, concentrate such arguments, and our tactics should be those of a sudden charge in mass. This, however, is a practice which should be resorted to but rarely and only under extreme necessity when reason compels us to take a course which is apparently irrational. 8 In addition it must be pointed out that in any partition there is always some one point of such special importance, that when the judge has heard it he is impatient with the remainder, which he regards as superfluous. Consequently if we have to prove or refute a number of points partition will be both useful and attractive, since it will indicate in order what we propose to say on each subject. On the other hand, if we are defending one point on various grounds partition will be unnecessary. 9 If you were to make a partition such as the following, "I will not say that the character of my client is such as to render him incapable of murder, I will only say that he had no motive for murder and that at the time when the deceased was killed he was overseas," in that case all the proofs which you propose to bring before this, the final proof, must needs seem superfluous to the judge. 10 For the judge is always in a hurry to reach the most important point. If he has a patient disposition he will merely make a silent appeal to the advocate,  p143 whom he will treat as bound by his promise. On the other hand, if he is busy, or holds exalted position, or is intolerant by nature, he will insist in no very courteous manner on his coming to the point. 11 For these reasons there are someone who disapprove of the partition adopted by Cicero in the pro Cluentio,66 where he premises that he is going to show, first, "that no man was ever arraigned for greater crimes or on stronger evidence than Oppianicus," secondly, "that previous judgments had been passed by those very judges by whom he was condemned," and finally, "that Cluentius made no attempt to bribe the jury, but that his opponent did." They argue that if the third point can be proved, there is no need to have urged the two preceding. 12 On the other hand you will find no one so unreasonable or so foolish as to deny that the partition in the pro Murena67 is admirable. "I understand, gentlemen, that the accusation falls into three parts, the first aspersing my client's character, the second dealing with his candidature for the magistracy, and the third with charges of bribery." These words make the case as clear as possible, and no one division renders any other superfluous.

13 There are also a number who are in doubt as to a form of defence which I may exemplify as follows: "If I murdered him, I did right; but I did not murder him."68 What, they ask, is the value of the first part, if the second can be proved, since they are mutually inconsistent, and if anyone employs both arguments, we should believe neither? This contention is partially justified; we should employ the  p145 second alone only if the fact can be proved without a doubt. 14 But if we have any doubts as to being able to prove the stronger argument, we shall do well to rely on both. Different arguments move different people. He who thinks that the act was committed may regard it as a just act, while he who is deaf to the plea that the act was just may perhaps believe that it was never committed: one who is confident of his powers as a marksman may be content with one shaft, whereas he who has no such confidence will do well to launch several and give fortune a chance to come to his assistance. 15 Cicero in the pro Milone reveals the utmost skill in showing first that Clodius laid an ambush for Milo and then in adding as a supernumerary argument that, even if he had not done so, he was nevertheless so bad a citizen that his slaying could only have done credit to the patriotism of the slayer and redounded to his glory. 16 I would not however entirely condemn the order mentioned above,69 since there are certain arguments which, though hard in themselves, may serve to soften those which come after. The proverb, "If you want to get your due, you must ask for something more,"70 is not wholly unreasonable. 17 Still no one should interpret it to mean that you must stop short of nothing. For the Greeks are right when they lay it down as a rule that we should not attempt the impossible. But whenever the double-barrelled defence of which I am speaking is employed, we must aim at making the first argument support the credibility of the second. For he who might without danger to himself have confessed to the commission of the act, can have no motive for lying when he denies the commission.

 p147  18 Above all it is important, whenever we suspect that the judge desires a proof other than that on which we are engaged, to promise that we will satisfy him on the point fully and without delay, more especially if the question is one of our client's honour. 19 But it will often happen that a discreditable case has the law on its side, and to prevent the judges giving us only a grudging and reluctant hearing on the point of law, we shall have to warn them with some frequency that we shall shortly proceed to defend our client's honour and integrity, if they will only wait a little and allow us to follow the order of our proofs. 20 We may also at times pretend to say certain things against the wishes of our clients, as Cicero71 does in the pro Cluentio when he discusses the law dealing with judicial corruption. Occasionally we may stop, as though interrupted by our clients, while often we shall address them and exhort them to let us act as we think best. Thus we shall make a gradual impression on the mind of the judge, and, buoyed up by the hope that we are going to clear our client's honour, he will be less ill-disposed toward the harder portions of our proof. 21 And when he has accepted these, he will be all readier to listen to our defence of our client's character. Thus the two points will render mutual assistance to each other; the judge will be more attentive to our legal proofs owing to his hope that we shall proceed to a vindication of character and better disposed to accept that vindication because we have proved our point of law.

22 But although partition is neither always necessary nor useful, it will, if judiciously employed, greatly  p149 add to the lucidity and grace of our speech. For it not only makes our arguments clearer by isolating the points from the crowd in which they would otherwise be lost and placing them before the eyes of the judge, but relieves his attention by assigning a definite limit to certain parts of our speech, just as our fatigue upon a journey is relieved by reading the distances on the milestones which we pass. 23 For it is a pleasure to be able to measure how much of our task has been accomplished, and the knowledge of what remains to do stimulates us to fresh effort over the labour that still awaits us. For nothing need seem long, when it is definitely known how far it is to the end. 24 Quintus Hortensius deserves the high praise which has been awarded him for the care which he took over his partitions, although Cicero more than once indulges in kindly mockery of his habit of counting his headings on his fingers. For there is a limit to gesture, and we must be specially careful to avoid excessive minuteness and any suggestion of articulated structure in our partition. 25 If our divisions are too small, they cease to be limbs and become fragments, and consequently detract not a little from the authority of our speech. Moreover, those who are ambitious of this sort of reputation, in order that they may appear to enhance the nicety and the exhaustive nature of their division, introduce what is superfluous and subdivide things which naturally form a single whole. The result of their labours is, however, not so much to increase the number of their divisions as to diminish their importance, and after all is done and they have split up their argument into a thousand tiny compartments, they fall into that very obscurity which the partition was designed to eliminate.

 p151  26 The proposition, whether single or multiple, must, on every occasion when it can be employed with profit, be clear and lucid; for what could be more discreditable than that a portion of the speech, whose sole purpose is to prevent obscurity elsewhere, should itself be obscure? Secondly it must be brief and must not be burdened with a single superfluous word; for we are not explaining what we are saying, but what we are going to say. 27 We must also ensure that it is free alike from omissions and from redundance. Redundance as a rule occurs through our dividing into species when it would be sufficient to divide into genera, or through the addition of species after stating the genus. The following will serve as an example: "I will speak of virtue, justice and abstinence." But justice and abstinence are species of the genus virtue. 28 Our first partition will be between admitted and disputed facts. Admitted facts will then be divided into those acknowledged by our opponent and those acknowledged by ourselves. Disputed facts will be divided into those which we and those which our opponents allege. But the worst fault of all is to treat your points in an order different from that which was assigned them in your proposition.

The Translator's Notes:

58 Verr. I. vii.27.

59 See note on IV.IV.8.

60 The speech actually delivered, not the long speech which has come down to us, but was never delivered.

61 III.ix.5; xi.27.

62 III.IX.2.

63 See V.XIV.14.

64 pro Mil. xi.30.

65 The speech is lost. In 67 B.C. Cornelius as tribune of the plebs proposed a law enacting that no man should be released from the obligations of a law save by decree of the people. This struck at a privilege usurped by the senate, and Servilius Globulus, another tribune, forbade the herald to read out the proposal. Cornelius then read it himself. He was accused of maiestas, defended by Cicero in 65 B.C. and acquitted.

66 iv.9. Oppianicus had been indicted by Cluentius for an attempt upon his life and condemned. The "previous judgments" referred to were condemnations of his accomplices, which made Oppianicus' condemnation inevitable. Oppianicus was condemned, and it was alleged that this was due to bribery by Cluentius. Cluentius was now on his trial for the alleged murder of various persons.

67 v.11.

68 See III.VI.10.

69 § 13.

70 The proverb would seem originally to refer to bargaining in the market: the salesman, knowing he will be beaten down, sets his original price too high. But it would equally apply to claims for damages in the courts.

71 lii.

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