Institutes of Oratory
On the Education of an Orator
1. Since I have examined in the second book what oratory is, and what is its object; since I have shown, as well as my abilities allowed, that it is an art, that it is useful, and that it is a virtue; and since I have put under its power every subject on which it may be necessary to speak, I shall now proceed to show whence it had its origin, of what parts it consists, and how every department of it is to be contemplated and treated; for most of the writers of books on the art have stopped even short of these limits; so that Apollodorus confined himself to judicial pleadings only.
2. Nor am I ignorant that those who are studious of oratory have desired to receive from me that part of my work, of which this book proceeds to treat, more anxiously than any other; a part which, though it will be the most difficult to myself, from the necessity of examining a vast diversity of opinions, will yet perhaps afford the least pleasure to my readers, since it admits merely of a dry exposition of rules. 3. In other parts I have endeavored to introduce some little embellishment, not with the view of displaying my own ability, (since for that purpose a subject of more fertility might have been chosen,) but in order that, by that means, I might more successfully attract youth to the study of those matters which I thought necessary for their improvement; if, possibly, being stimulated by some pleasure in the reading, they might more willingly learn those precepts of which I found that a bare and dry enumeration might be repulsive to their minds, and offend their ears, especially as they are grown so delicate. 4. It was with such a view that Lucretius [B. i. v. 934; iv. 11] said he put the precepts of philosophy into verse; for he uses, as is well known, the following simile
Ac veluti pueris absinthia tetra medentes
"And as physicians, when they attempt to give bitter wormwood to children, first tinge the rim round the cup with the sweet and yellow liquid of honey," &c. 5. But I fear that this book may be thought to contain very little honey and a great deal of wormwood, and may be more serviceable for instruction than agreeable. I am afraid, too, that it may find the less favor, as it will contain precepts not newly invented, for the most part, by me, but previously given by others; and it may also meet with some who are of contrary opinions, and who will be ready to assail it; because most authors, though they have directed their steps to the same point, have made different roads towards it, and each has drawn his followers into his own. 6. Their adherents, moreover, approve whatever path they have pursued, and you will not easily alter prepossessions that have been inculcated into youth, for every one had rather have learned than learn.
7. But there is, as will appear in the progress of the book,
an infinite diversity of opinions among authors; as some have
added their own discoveries to what was previously rude and
imperfect, and then others, that they might seem to produce
something themselves, have even altered what was right. 8.
The first writer who, after those that the poets have mentioned,
touched at all upon oratory, is said to have been Empedocles
p. 370 of Fabricius's edition. The book of Aristotle, from which
10. At the same period with him lived Thrasymachus of Chalcedon, Prodicus of Ceos, Protagoras of Abdera, (from whom Euathlus is said to have learned the art of oratory, on which he published a treatise, for ten thousand denarii,) Hippias of Elis, and Alcidamus of Elaea, whom Plato calls Palamedes; 11. There was also Antiphon, (who was the first that wrote speeches [he was the first that wrote speeches, and sold them to accused persons, or persons going to law, to use as their own, as is related by Ammianus Marcellinus, xxx. 4] and who, besides, composed a book of rules on rhetoric, and was thought to have pleaded his own cause on a trial with great ability,) Polycrates, by whom I have said that a speech was written against Socrates, and Theodorus of Byzantium, one of those whom Plato [Phaedr. p. 266 E.] calls λογοδαιδαλοι, "artificers in words."
12. Of these, the first that treated general subjects were Protagoras, Gorgias, Prodicus, and Thrasymachus. Cicero, in his Brutus [C. 7], says that no composition, having any rhetorical embellishment, was written before the time of Pericles, but that some pieces of his were in circulation. For my part, I find nothing answerable to the fame of such eloquence as his [Cicero (Brut. c. 7, and de Orat. ii. 22) seems to have had greater faith in the genuineness of the writings circulated under the name of Pericles], and am therefore the less surprised that some should think that nothing was written by Pericles, but that the writings, which were circulated under his name, were written by others.
13. To these succeeded many other rhetoricians, but the most famous of the pupils of Gorgias was Isocrates; though authors, indeed, are not agreed as to who was his master; I, however, trust to Aristotle [Dionysius Halicarnassensis (Tom. ii. p. 94) says that not only Gorgias was a preceptor of Isocrates, but also Prodicus of Ceos, and Tisias of Syracuse, and mentions, as an opinion of some, that he was instructed by Theramenes] on that point. 14. From this time different roads, as it were, began to be formed; for the disciples of Isocrates were eminent in every department of learning; and, when he was grown old, (he lived to complete his ninety-eighth year,) Aristotle began to teach the art of oratory in his afternoon lessons [see Aul. Gell. xx. 5, who says that what Aristotle taught on rhetoric was among his exoterica, instructions which he used to give in the evening, when his audience was less select than in the morning], frequently parodying, as is said, the well-known verse from the tragedy of Philoctetes, thus:
Αισχρον σιωπαν, και Ισοκρατην εαν λεγειν,
"It is disgraceful to be silent, and to allow Isocrates to speak."
A treatise on the art of oratory was published by each of them; but Aristotle made his to consist of several books. At the same time lived Theodectes, of whose work I have already spoken. 15. Theophrastus, also, a disciple of Aristotle, wrote very carefully on rhetoric; and since that time the philosophers, especially the leaders of the Stoics and Peripatetics, have paid even greater attention to the subject than the rhetoricians. 16. Hermagoras then made, as it were, a way for himself, which most orators have followed; but Athenaeus appears to have been most nearly his equal and rival. Afterwards Apollonius Melon, Arcus, Caecilius, and Dionysius of Halicarnassus, wrote much upon the art.
17. But the two that attracted most attention to themselves were Apollodorus of Pergamus, who was the teacher of Caesar Augustus at Apollonia, and Theodorus of Gadara, who preferred to be called a native of Rhodes, and whose lectures Tiberius Caesar, when he retired into that island, is said to have constantly attended. 18. These two rhetoricians taught different systems, and their followers were thence called Apollodoreans and Theodoreans, after the manner of those who devote themselves to certain sects in philosophy. But the doctrines of Apollodorus you may learn best from his disciples, of whom the most exact in delivering them in Latin was Caius Valgius [Caius Valgius Rufus, a grammarian and rhetorician in the time of Augustus, to whom he inscribed a book on herbs, Plin. H. N. xxv. 2], in Greek Atticus [probably the Dionysius Atticus mentioned by Strabo, xiii. p. 635]. Of Apollodorus himself the only work on the art seems to have been that addressed to Matius [there is a Matius mentioned by Pliny, H. N. xii. 6, by whom he is called Divi Augusti amicus]; for the epistle written to Domitius [possibly Domitius Marsua, the elegant poet and prose writer in the time of Augustus] does not acknowledge the other books attributed to him. The writings of Theodorus were more numerous; and there are some now living who have seen his disciple Hermagoras.
19. The first among the Romans, as far as I know, that composed anything on this subject, was Marcus Cato the Censor; after whom Marcus Antonius [see Cicero de Orat. i. 47, 48] made some attempt in it; it is the only writing that is extant of his, and is in quite an unfinished state. Less celebrated writers followed, whose names, if occasion shall anywhere require, I will not forbear to mention. 20. But Marcus Tullius Cicero threw the greatest light, not only on eloquence itself, but also on its precepts, giving the only model of excellence among us in speaking and in teaching the art of speaking; after whom it would be most becoming to be silent, if he himself had not said that his books on rhetoric escaped from his hands when he was very young, and if he had not intentionally omitted, in his Dialogues on Oratory, those minor points on which most learners require instruction [see De Orat. i. 6; 36; ii. 3; Epist. ad Div. i. 9]. 31. Cornificius [probably the Quintus Cornificius to whom Cicero writes, Epist. ad Div. xii. 17, 18, 23] wrote much on the same subject; Stertinius something considerable [a Maximus Stertinius is noticed by Senecca, Controv. ix]; and Gallio the father a little [Seneca the father often alludes to a Junius Gallio, who adopted the son of that Seneca, the eldest brother of the philosopher. He was the friend of Ovid (Senec. Suas. iii. p. 25)]. But Celsus and Laenas, who preceded Gallio, and Virginius [mentioned by Tacitus, Ann. xv. 71: Virginius studia juvenum eloquentia fovebat], Pliny [the author of the Natural History, who wrote three books on the education of an orator ab incunabulis; Plin. Ep. iii. 5, 6], and Tutilius [mentioned by Martial, v. 57, 6] in our own age, have written on the art with greater accuracy.
There are also at this very time eminent writers on the same subject, who, if they had embraced every part of it, would have relieved me from my present task; but I forbear to mention the names of living authors; the due time for honoring them will arrive; for their merits will live in the memory of posterity, to whom the influence of envy will not reach.
22. Yet, after so many great writers, I shall not hesitate to advance, on certain points, my own opinions; for I have not attached myself to any particular sect, as if I were affected with any spirit of superstition; and, as I bring together the observations of many authors, liberty must be allowed my readers to choose from them what they please; being myself content, wherever there is no room for showing ability, to deserve the praise due to carefulness.
1. The question, what is the origin of oratory, need not detain us long; for who can doubt that men, as soon as they were produced, received language from nature herself, the parent of all things, (which was at least the commencement of oratory,) and that utility brought improvement to it, and method and exercise perfection? 2. Nor do I see why some should think that accuracy in speaking had its rise from the circumstance that those, who were brought into any danger by accusation, set themselves to speak with more than ordinary care for the purpose of defending themselves. This, even if a more honorable cause, is not necessarily the first; especially as accusation goes before defense; unless any person would say that a sword was forged by one who prepared steel for his own defense earlier than by one who designed it for the destruction of another.
It was therefore nature that gave origin to speech; and observation that gave origin to art; for as, in regard to medicine, when people saw that some things were wholesome and others unwholesome, they established an art by observing their different properties, so, with respect to speaking, when they found some things useful and others useless, they marked them for imitation or avoidance; other people added other things to the list according to their nature; these observations were confirmed by experience; and every one then taught what he knew. 4. Cicero [De Oral. i. 8], indeed, has attributed the origin of eloquence to founders of cities and to legislators; in whom there certainly must have been some power of speaking; but why he should regard this as the very origin of oratory, I do not see; as there are nations at this day without any fixed settlements, without cities, and without laws, and yet men who are born among them discharge the duties of ambassadors, make accusations and defenses, and think that one person speaks better than another.
1. The whole art of oratory, as the most and greatest writers have taught, consists of five parts, invention, arrangement, expression, memory, and delivery or action; for the last is designated by either of these terms. But every speech, by which any purpose is expressed, must of necessity consist of both matter and words; 2. and, if it is short, and included in one sentence, it may perhaps call for no further consideration; but a speech of greater length requires attention to a greater number of particulars; for it is not only of consequence what we say, and how we say it, but also where we say it; there is need therefore also for arrangement. But we cannot say everything that our subject demands, nor everything in its proper place, without the assistance of memory, which will accordingly constitute a fourth part. 3. And a delivery which is unbecoming either as to voice or gesture, vitiates, and almost renders ineffectual, all those other requisites of eloquence; and to delivery therefore must necessarily be assigned the fifth place.
4. Nor are some writers, among whom is Albutius [Albutius Novariensis came to Rome in the reign of Augustus, and was received into the friendship of Plancus. He opened a school at Rome, and taught rhetoric. Seneca mentions him in his Declamations and Controversies], to be be regarded, who admit only the first three parts, because memory, they say, and delivery, (on which we shall give directions in the proper place,) come from nature, not from art. Thracymachus [he might have said this in the τεχνη ρητορικη which Suidas attributes to him. There was more than one book of his extant, as appears from Cicero Orat. c. 52], however, was of the same opinion as far as concerns delivery. 6. To these some have added a sixth part, by subjoining judgment to invention, as it is our first business to invent, and then to judge. For my part, I do not consider that he who has not judged has invented; for a person is not said to have invented contradictory or foolish arguments, or such as are of equal value to himself and his adversary, but not to have avoided them.
6. Cicero, indeed, in his Rhetorica [the books De Inventione], has included judgment under invention; but, to me, judgment appears to be so mingled with the first three parts (for there can neither be arrangement nor expression without it), that I think even delivery greatly indebted to it. 7. This I would the more boldly afllrm, as Cicero, in his Partitiones Oratoriae [C. i. sect. 3], arrives at the same five divisions of which I have just spoken; for, after first dividing oratory into two parts, invention and expression, he has put matter and arrangement under invention, and words and delivery under expression, and has then made memory a fifth part, having a common influence on all the rest, and being, as it were, the guardian of them. He also says, in his books de Oratore [De Oratore, i. 31], that eloquence consists of five divisions; and the opinions expressed in these books, as they were written at a later period, may be regarded as more settled.
8. Those authors appear to me to have been not less desirous to introduce something new, who have added order after having previously specified arrangement [dispositio], as if arrangement were anything else than the disposition of things in the best possible order. Dion [Dion Chrysostom?] has specified only invention and arrangement, but has made each of them of two kinds, relating to matter and to words; so that expression may be included under invention, and delivery under arrangement; to which parts a fifth, memory, must be added. The followers of Theodorus, for the most part, distinguish invention into two sorts, referring to matter and expression; and then add the three other parts. 9. Hermagoras puts judgment, division, order, and whatever relates to expression, under economy, which, being a Greek term, taken from the care of domestic aflairs, and used in reference to this subject metaphorically, has no Latin equivalent.
10. There is also a question about the following point, namely, that, in settling the order of the parts, some have put memory after invention, some after arrangement. To me the fourth place seems most suitable for it; for we must not only retain in mind what we have imagined, in order to arrange it, and what we have arranged in order to express it, but we must also commit to memory what we have comprised in words; since it is in the memory that everything that enters into the composition of a speech is deposited.
11. There have been also many writers inclined to think that these divisions should not be called parts of the art of oratory but duties of the orator, as it is the business of the orator to invent, arrange, express, et cetera. 12. But if we coincide in this opinion, we shall leave nothing to art; for to speak well is the duty of the orator, yet skill in speaking well constitutes the art of oratory; or, as others express their notions, it is the duty of the orator to persuade, yet the power of persuading lies in his art. Thus to invent arguments and arrange them are the duties of the orator; yet invention and arrangement may be thought peculiar parts of the art of oratory.
13. It is a point, too, about which many have disputed, whether these are parts of the art of oratory or works of it, or (as Athenaeus [Il. 15, 23] thinks) elements of it, which the Greeks call στοιχεια. But no one can properly call them elements; for in that case they will be merely first principles, as water, or fire, or matter, or indivisible atoms, are called the elements of the world; nor can they justly be named works, as they are not performed by others, but perform something themselves. 14. They are therefore parts: for as oratory consists of them, and as a whole consists of parts, it is impossible that those things of which the whole is composed can be anything else but parts of that whole.
Those who have called them works, appear to me to have been moved by this consideration, that they did not like, in making the other division of oratory, to adopt the same term; for the parts of oratory, they said, were the panegyrical, the deliberative, and the judicial. 15. But if these are parts, they are parts of the matter rather than the art; for in each of them is included the whole of oratory; since no one of them can dispense with invention, arrangement, expression, memory, and delivery. Some, therefore, have thought it better to say that there are three kinds of oratory; but those whom Cicero [De Orat. i. 31; Top. c. 24] has followed have given the most reasonable opinion, namely, that there are three kinds of subjects for oratory.
1. But it is a question whether there are three or more. Certainly almost all writers, at least those of the highest authority among the ancients, have acquiesced in this tripartite distinction, following the opinion of Aristotle, who merely calls the deliberative by another name, concionalis, [δημηγορικον. Arist. Rhet. i 1, 10; iii. 14, 11] "suitable for addresses to public assemblies." 2. But a feeble attempt was made at that time by some of the Greek writers, an attempt which has since been noticed by Cicero in his books De Oratore [Il. 10], and is now almost forced upon us by the greatest author [Pliny the Elder?] of our own day, to make it appear that there are not only more kinds, but kinds almost innumerable. 3. Indeed, if we distinguish praising and blaming in the third part of oratory, in what kind of oratory shall we be said to employ ourselves when we complain, console, appease, excite, alarm, encourage, direct, explain obscure expressions, narrate, entreat, offer thanks, congratulate, reproach, attack, describe, command, retract, express wishes or opinions, and speak in a thousand other ways?
4. So that if I adhere to the opinion of the ancients, I must, as it were, ask pardon for doing so, and must inquire by what considerations they were induced to confine a subject of such extent and variety within such narrow limits? 5. Those who say that the ancients were in error, suppose that they were led into it by the circumstance that they saw in their time orators exerting themselves for the most part in these three kinds only; for laudatory and vituperative speeches were then written; it was customary to pronounce funeral orations; and a vast deal of labor was bestowed on deliberative and judicial eloquence; so that the writers of books on the art included in them the kinds of eloquence most in use as the only kinds. 6. But those who defend the ancients, make three sorts of hearers; one, who assemble only to be gratified; a second, to listen to counsel; and a third, to form a judgment on the points in debate.
For myself, while I am searching for all sorts of arguments in support of these various opinions, it occurs to me that we might make only two kinds of oratory, on this consideration, that all the business of an orator lies in causes either judicial or extrajudicial. 7. Of matters in which decision is sought from the opinion of a judge, the nature is self-evident; those which are not referred to a judge, have respect either to the past or to the future; the past we either praise or blame; and about the future we deliberate. 8. We may also add, that all subjects on which an orator has to speak are either certain or doubtful; the certain he praises or blames, according to the opinion which he forms of them; of the doubtful, some are left free for ourselves to choose how to decide on them, and concerning these there must be deliberation; some are left to the judgment of others, and concerning these there must be litigation.
9. Anaximenes admitted only the general divisions of judicial and deliberative, but said that there were seven species; those, namely, of exhorting and dissuading, of praising and blaming, of accusing and defending, and of examining, which he calls the exetastic sort; but it is easy to see that the first two of these species belong to the deliberative kind of oratory, the two following to the epideictic, and the last three to the judicial. 10. I pass over Protagoras, who thinks that the only parts of oratory are those of interrogating, replying, commanding, and entreating, which he calls ευχωλη. Plato, in his Sophistes [Ed. Steph. p. 222], has added to the judicial and deliberative a third kind which he calls προσομιλητικον, and which we may allow ourselves to call the sermocinatory sort, which is distinct from the oratory of the forum, and suited to private discussions, and of which the nature is the same as that of dialectics or logic 11. Isocrates [see ii. 15, 4] thought that praise and blame have a place in every kind of oratory.
To me it has appeared safest to follow the majority of writers; and so reason seems to direct. 12. There is, then, as I said, one kind of oratory in which praise and blame are included, but which is called, from the better part of its office, the panegyrical; others, however, term it the demonstrative or epideictic. (Both names are thought to be derived from the Greeks, who apply to those kinds the epithets εγκωμιαστικον and επιδεικτικον. 13. But the word επιδεικτικον seems to me to have the signification, not so much of demonstration as of ostentation, and to differ very much from the term εγκωμιαστικον; for though it includes in it the laudatory kind of oratory, it does not consist in that kind alone. 14. Would any one deny that panegyrical speeches are of the epideictic kind? Yet they take the suasory form, and generally speak of the interests of Greece.
So that there are, indeed, three kinds of oratory; but in each of them part is devoted to the subject-matter, and part to display. But perhaps our countrymen, when they call a particular kind demonstrative, do not borrow the name from the Greeks, but are simply led by the consideration that praise and blame demonstrate what the exact nature of anything is.) 15. The second kind is the deliberative, and the third the judicial. Other species will fall under these genera, nor will there be found any one species in which we shall not have either to praise or to blame, to persuade or to dissuade, to enforce a charge or to repel one; while to conciliate, to state facts, to inform, to exaggerate, to extenuate, and to influence the judgment of the audience by exciting or allaying the passions, are common to every sort of oratory.
16. I could not agree even with those, who, adopting, as I think, a division rather easy and specious than true, consider that the matter of panegyrical eloquence concerns what is honorable, that of deliberative what is expedient, and that of judicial what is just; for all are supported, to a certain extent, by aid one from another; since in panegyric justice and expediency are considered, and in deliberations honor; and you will rarely find a judicial pleading into some part of which something of what I have just mentioned does not enter.
1. But every speech consists at once of that which is expressed, and of that which expresses, that is, of matter and words. Ability in speaking is produced by nature, art, and practice; to which some add a fourth requisite, namely imitation; which I include under art. 2. There are also three objects which an orator must accomplish, to inform, to move, to please; for this is a clearer partition than that of those who divide the whole of oratory into what concerns things and passions; since both these will not always find a place in the subjects of which we shall have to treat. Some subjects are altogether unconnected with the pathetic, which, though it cannot make room for itself everywhere, yet, wherever it forces an entrance, produces a most powerful effect.
3. The most eminent authors are of opinion that there are some things in pleading that require proof, and others that do not require it; and I agree with them. Some, however , as Celsus, think that an orator will not speak on any subject unless there be some question about it; but the majority of authors, as well as the general division of oratory into three kinds, are opposed to him; unless we say that to praise what is acknowledged to be honorable, and to blame what is admitted to be dishonorable, is no part of an orator's business.
4. All writers admit, however, that questions depend on what is written or what is not written. Questions about something written concern legality; those about something not written concern fact. Hermagoras, and those who follow him, call the former kind legal questions, the latter rational questions, using the terms νομικον and λογικον. 5. Those who make all questions relate to things and words are of the same opinion.
It is also agreed that questions are either indefinite or definite. The indefinite are those which, without regard to persons, time, place, and other such circumstances, are argued for or against. This sort of questions the Greeks call θεσεις: Cicero [see. ii. 1, 9] propositions; others general questions relating to civil affairs; others questions suitable for philosophical discussion; while Athenaeus makes them parts of the cause to be decided. 6. Cicero [Topic. c. 21; Partit. Orat. c. 18] distinguishes them into questions relating to knowledge and to action; so that "Is the world governed by divine providence?" will be a question of knowledge, "Ought we to take part in the management of public affairs?" a question of action. The former kind he subdivides into three species, "whether a thing is," "what it is," and "of what nature it is;" for all these points may be unknown; the latter kind into two, "how we should obtain the thing in question," and "how we should use it."
7. Definite questions embrace particular circumstances, persons, times, and other things; they are called by the Greeks υποθεσεις: by our countrymen, causes. In these the whole inquiry seems to be about things and persona. 8. The indefinite is always the more comprehensive; for from it comes the definite. To make this plainer by an example, the question "whether a man should marry" is indefinite; the question "whether Cato should marry" is definite, and may accordingly become the subject of a suasory speech. But even those which have no allusion to particular persons are generally referred to something; for "ought we to take a share in the government of our country?" is an abstract question, but "ought we to take a share in the government of it under a tyranny?" has reference to something definite. 9. Yet here also there lies concealed, as it were, a person; for the word tyranny doubles the question, and there is a tacit consideration of time and quality; yet you cannot properly call the question a cause.
Those questions which I call indefinite are also called general; and, if this be a proper term, definite questions will also be special. But in every special question is included the general, as being antecedent. 10. In judicial causes, too, I know not whether whatever comes under the question of quality is not general: Milo killed Clodius: He was in the right to kill a lier-in-wait: docs not this question arise, Whether it be right to kill a lier-in-wait? In conjectural matters, also, are not those questions general, was hatred, or covetousness, the cause of the crime? Ought we to trust in evidence extracted by torture? Ought greater credit to be given to witnesses or to arguments? As to definitions, it is certain that everything comprehended in them is expressed generally.
11. Some think that those questions which are limited to particular persons and causes may sometimes be called theses, if only put in a different way; so that, when Orestes is accused, it is a cause, but when it is inquired whether Orestes was justly acquitted, it is a thesis; of which sort also is the question whether Cato was right in giving Marcia to Hortensius? These writers distinguish a thesis from a cause by saying that a thesis has respect to what is theoretical: a cause to what is actually done; since, in regard to a thesis we dispute only with a view to abstract truth, in a cause we consider some particular act.
12. Some, however, think that the consideration of general questions is useless to an orator, as it is of no profit for it to be proved, they say, that we ought to marry, or that we should take part in the government of the state, if we are hindered from doing so by age or ill-health. But we cannot make the same objection to all questions of the kind; as, for example, to these: whether virtue is the chief good, and whether the world is governed by divine providence. 13. Moreover, in inquiries that relate to an individual, though it is not enough to consider the general question, yet we cannot arrive at the decision of the particular point without discussing the general question first. For how will Cato consider whether he himself ought to marry, unless it be first settled whether men ought to marry at all? Or how will it be inquired whether Cato ought to marry Marcia, if it be not previously decided whether Cato ought to take a wife?
14. Yet there are books in circulation under the name of Hermagoras, which support the opinion that I am opposing; whether it be that the title is fictitious, or whether it were another Hermagoras that wrote them; for how can they be the productions of the same Hermagoras who wrote so much and so admirably on this art, when, as is evident, even from Cicero's first book on rhetoric [De Invent. i. 6], he divided the subject-matter of oratory into theses and causes? a division which Cicero himself condemns, contending that the thesis is no concern of the orator's, and referring this kind of question wholly to the philosophers. 15 But Cicero has relieved me from all shame at differing with him, as he not only censures those books himself, but also, in his Orator [C. 14], in the books which he wrote De Oratore [III. 80], and in his Topica [C. 21], directs us to abstract the discussion from particular persons and occasions, because we can speak more fully on what is general than what is special, and because whatever is proved universally must also be proved particularly.
16. As to the state of the question, it is the same with regard to every kind of thesis as with regard to causes. To this is added that there are some questions that concern matters absolutely, and others that refer to something particular; of the former kind is whether a man ought to marry; of the latter, whether an old man ought to marry; of the former kind, is whether a man be brave; of the latter, whether he be braver than another man.
17. Apollodorus, to adopt the translation of his disciple Valgius [see iii. 7, 18], defines a cause thus: The cause is the matter having regard in all its parts to the question; or, the cause is the matter of which the question is the object. He then gives this definition of the matter: The matter is the combination of persons, places, times, motives, means, incidents, acts, instruments, sayings, things written and not written. 18. For my part, I here understand by the cause what the Greeks call υποθεσις, by the matter what they term περιστασις. But some writers have defined the cause itself in the same way as Apollodorus defines the matter. Isocrates says that a cause is a definite question relating to civil affairs, or a disputed point between a definite number of persons. Cicero [Topic. c. 31] speaks of it in these words: A cause is determined by reference to certain persons, places, times, actions, and events, depending for decision either on all or the majority of them.
1. Since every cause, therefore, is comprehended in some state [Latin status, Greek στασις, 'ground, position'], I think that before I proceed to specify how the several kinds of causes are to be managed, I must consider that question which has reference to all of them alike, what is a state? as well as whence it is drawn, and how many and what kinds of states there are? Some have been of opinion, however, that all these questions concern only judicial matters; but, when I have treated of all the three kinds of oratory, the result will make their ignorance apparent. 2. What I call the state, some term the settlement [constitutionem. This term is used by Cicero de Inv. i. 8; Script, ad Herenn. i. 11]; others the question; others that which appears from the question; and Theodoras styles it the general head, κεφαλαιον γενικωτατον, to which everything else is referred. But though the names are different, the meaning is the same; nor is it of any consequence to learners by what term anything is distinguished, so that the thing itself be clear.
3. The Greeks call the state στασις: a name which they think was not first given it by Hermagoras, but, as some suppose, by Naucratis [see Dionys. Halicarn. in Arte, 39, vol. ii. Cicero de Orat. ii. 23; iii. 44; Orat. c. 51], a disciple of Isocrates, or, as others imagine, by Zopyrus [Diog. Laert. ix. 114] of Clazomenae; though even Aeschines appears to use the term in his oration against Ctesiphon [Ed. Steph. p. 83] when he entreats the judges not to allow Demosthenes to wander from the subject, but to oblige him to speak directly to the state of the case. 4. The name is said to be derived either from the fact that in it lies the commencement of controversy in the cause, or that the cause rests on it.
Such is the origin of its name; let us now consider what it is. Some have defined the state to be the first conflict of questions, who, I think, have conceived rightly, but have not expressed themselves with sufficient judgment. 5. For the state is not the first conflict; You have done, I have not done, but that which results from the first conflict, that is, the nature of the question, you have done; I have not done; has he done? You have done this; I have not done this; what has he done? But as it appears from those examples, that the first sort of question depends on conjecture, the other on definition, and as it is on these points that each side will insist, the question will be one either of a conjectural or of definitive state. 6. Supposing a person should say, sound is the concussion of two bodies, he would be in the wrong, I think; for the sound is not the concussion, but the result of the concussion.
This is a mistake, however, of but trifling consequence; for the meaning is understood in whatever way it be expressed; but in regard to oratory, an error of vast importance has arisen among students who have imperfectly understood their authors, and who, as they read the words first conflict, thought that the state was always to be taken from the first question; a supposition which is altogether unfounded. 7. For there is no question that has not its state: since there is none that is not founded on assertion and denial; but some questions form an integral part of causes, and on these a decision must be pronounced; while others are introduced from without, contributing something, however, like auxiliaries, to the general strength of the cause; and it then happens that there are said to be several questions in the same suit. 8. Of these the least important often occupies the first place; for it is a common artifice among us to abandon those points in which we have least trust, after they have been dwelt upon, sometimes conceding them as it were, of our own accord, to the opposite side, and sometimes contenting ourselves with making an ascent from them to stronger grounds of argument.
9. A simple cause, though it may be defended in various ways, cannot contain more than one point on which a decision is to be pronounced; and hence the state of the cause will be that which the pleader regards as the chief object to be gained, and the judge as the chief object of attention; for it is on this that the cause will take its stand. 10. But of questions there may be different states; since, to make this plain by a very short example, when the accused says, Even if I did it, I was right in doing it, he makes the state that of quality; but when he adds, but I did not do it, he makes it that of conjecture.
But the defense, I have not done it, is always the stronger; and therefore I shall consider the state as lying in that argument which I should use if I were not allowed to use more than one. 11. We therefore rightly say the first conflict of causes, not of questions. Cicero, in pleading for Rabirius Postumus, makes it his object, in the first part of his speech, to show that the charge could not be brought against a Roman knight; [the first part extends to the end of c. 7. Cicero maintains that by the Julian law de repetundis an action could not be brought against a Roman knight who had held no office] and, in the latter part, he asserts that no money came into his client's hands; but I should say that the state lies in that which is the stronger point.
12. Nor, in his speech for Milo, should I consider that the struggle in the cause commences with those early questions which are introduced immediately after the exordium, but where he proceeds to prove, with his whole strength, that Clodius was a lier-in-wait, and was therefore justly put to death. And that which an orator ought to settle in his mind before everything else, even though he purpose to offer many arguments in support of his cause, is what he would wish to be most apparent to the judge. But though this is the first thing to be considered, it does not follow that it will be the first to be stated.
13. Others have thought that the state is the first point of opposition offered by the party against whom you are pleading; an opinion which Cicero [Topic c. 25 init.] expressed in the following words: On which the defense first takes its stand, as if ready to grapple with the opponent to overthrow him. Hence, again, rises another question, whether he who replies always determines the state. To this notion Cornelius Celsus is eminently opposed, saying the state does not arise from him who denies, but from him who supports his own assertion; as, for instance, if an accused person denies that a man has been killed, the state would come from the accuser, because he would proceed to prove what he had affirmed; if the accused should say that the man was lawfully killed, the state would come from him, and the affirmation be on his side, the burden of proof being transferred from one party to the other.
14. With that writer I do not agree; for what is said in contradiction to him is nearer the truth, that there is no point of dispute if the party with whom you are going to law makes no reply, and that accordingly the state proceeds from the respondent. 15. In my own opinion, however, the case happens sometimes one way and sometimes another, varying according to the nature of the cause; because the affirmation may be thought sometimes to determine the state, as in conjectural causes; for it is rather the plaintiff that uses conjecture; (some, moved by this consideration, have said that the state proceeding from the defendant is a negative state;) and in a syllogism [a syllogism is a status legalis, in which we bring under the meaning of the written law something which is not actually included in the expressed letter of the law. It is so called because a syllogism is used, in which the law is given in the major proposition, and the minor the act to be brought under the signification of the law] the whole of the reasoning proceeds from him who affirms.
16. But because he who denies appears in those cases also to lay upon the opposite party the necessity of determining the state, (for if he says, I have not done the deed, he will oblige his opponent to use conjecture, and if he says My opponent has not the law on his side, he will compel him to have recourse to the syllogism,) let us grant that the state proceeds from the defendant. Nevertheless, however, the matter will come to the same thing, that sometimes the plaintiff will determine the state, and sometimes the defendant.
17. For let this be the assertion of the accuser, You have killed a man, if the accused deny the charge, it is the accused that will determine the state; but if he admits the truth of it, but says that the man was an adulterer, and was lawfully killed, (and it is certain that there is a law which gives permission to kill an adulterer,) then, unless the accuser makes some reply, there will be no case. But if the accuser rejoins, He was not an adulterer, refutation then commences on the part of the accuser, and it is he that will determine the state; which will thus indeed have its origin in the first denial, but that denial will be made by the accuser, not by the accused.
18. It may happen, too, that the same question may make the same person either accuser or accused; for instance, the law says, "Let not him who has exercised the profession of an actor sit in the first fourteen rows of seats;" but a man who had appeared as an actor before the praetor in his garden, but had not exhibited himself on the public stage, seated himself on one of those fourteen rows [which were assigned to the knights by the law of Lucius Otho Roscius]; 19. the charge then brought against him is, You have exercised the profession of an actor, the denial is, I have not exercised it, and the question, What it is to exercise the profession of an actor? If he be accused under the law respecting the theatre, the denial will proceed from the accused; but if he be expelled from the theatre, and demand reparation for unjust expulsion, the denial will be on the part of the accuser. 20. But that which is laid down by the majority of writers will certainly be of more frequent occurrence.
Those have escaped these difficulties who have said that the state is that which results from the affirmation and the denial; as, You have done the deed, I have not done it, or I was right in doing it. 21. Let us consider, however, whether that is the state, or whether it is in that that the state lies, Hermagoras calls that the state from which the matter in question is understood, and to which also the proofs of each party are directed as their object. My own opinion has always been, as there are frequently different states of questions in a cause, to regard that as the state of the cause which is the strongest point in it, and on which the whole matter chiefly turns.
If any one profess to call this the general question, or the general head, I shall not dispute with him on that point, (any more than if he should invent yet another name by which the same thing might be signified, although I know that many rhetoricians have devoted whole volumes to this discussion,) but I am satisfied to let it be called the state. 22. As there is the greatest dissension among writers, however, on all other matters, so, in regard to this, there appears to me to have been extraordinary eagerness to advance different opinions; insomuch that it is neither agreed what number of states there are, nor what are their names, nor which of them are general and which special.
25. Aristotle, first of all, specifies ten elements [the ten categories or predicaments of Aristotle: substance, quality, quantity, relation, place, time, doing, suffering, habit, position], to which every possible question appears to have some reference: ουσια, which Flavius calls essentia, (nor indeed is there any other Latin word for it,) and to which belongs the question "whether a thing is;" quality, of which the signification is plain enough; quantity, of which a twofold distinction has been made by later writers, in reference to the questions "how great?" and " how many?" [quam magnum et quam multum. The first denoting magnitude, of which the parts are connected; the second multitude, of which the parts are unconnected] relation to something, whence are drawn considerations concerning "exception" [the Latins, besides translatio, called it exceptio judicii declinatoria, or sometimes praescriptio; the Greeks μεταληψις or παραγραφη. Gedoyn has rendered it competence, the question being whether it is competent to a person who appears as an accuser, to bring an action against the person whom he accuses] and "comparison;" [comparatio among rhetoricians is generally a species of qualitas or status juridicialis, in Greek αντιστασις, when the accused person confesses that he has been guilty of a crime, but attempts to show that the ill which he did was the cause of some greater good] 24. next come where and when; then doing, suffering, condition, which has regard to a person's "being armed" or "clothed;" and last of all κεισθαι, position, which is a comprehensive sort of category, having reference to "sitting," "standing," "lying."
But of all these, the first four only appear to concern the states of causes; the rest seem to concern only topics for argument. 25. Others have specified nine elements: person, in respect to which inquiry is made concerning the mind, the body, and external circumstances; an element which, I see, refers to the means of establishing conjecture and quality; time, which the Greeks call χρονος, in regard to which arises, for example, the question "whether he whom his mother brought forth when she was given up to her creditors was born a slave?" place, in connection with which arises such a question as "whether it was lawful to kill a tyrant in a temple," or "whether he who lay hid in his own house underwent his term of exile;" 26. time in another sense, which the Greeks call καιρος, and which they would have to mean a portion of time in a more general sense, as summer, or winter; under this falls the question about "the reveller during a pestilence;" act, or πραξις, to which they refer the question "whether a man did a thing knowingly or unknowingly; from compulsion or by chance;" number, which may be regarded as a species of quantity, as "whether thirty rewards were due to Thrasybulus for having cut off thirty tyrants;" 27. cause, from which proceed many trials, as whenever a deed is not denied, but defended, as having been done with justice; τροπος, or manner, when what the law allowed to be done in one way is said to have been done in another; hence arises the question about "the adulterer scourged or starved to death;" [the question is, whether the mode of punishment was lawful. That to kill an adulterer was permitted by law is agreed] and opportunity for action, which is too well understood to need any explanation or example; the Greek term however is αφορμαι εργων.
28. These writers, like Aristotle, think that no case can occur that does not connect itself with some of these elements. Some take away two of them, number and opportunity; and for what I called act substitute things, that is, πραγματα. These doctrines I have thought it sufficient just to notice, that I might not be supposed to have purposely omitted them. But I neither consider that states of causes are properly determined by these categories, nor that all topics for argument are included in them; and this will be apparent to those who read with attention what I am going to say on each of these heads; for there will be found to be many particulars that are not comprehended under these elements.
29. I have read in many authors that some rhetoricians are of opinion that there is in reality but one state, namely, the conjectural; but who the rhetoricians that held this opinion were, those authors have not told us, nor have I been able anywhere to discover. They are said, however, to have formed their notions on this ground, that our knowledge of everything is the result of indications [signis]. But from similar reasoning they might say that the only state is that of quality, as a question may always arise about the quality or nature of anything about which we speak. 30. From either mode the greatest confusion will result; nor will it make any difference, indeed, whether we admit one kind of state only, or none at all, if all causes are of the same nature. Conjecture is derived from conjicere, "to throw together," that is, from making all our reasonings converge towards truth; whence also interpreters of dreams and omens are called conjectores, "conjecturers." But this sort of state has received various names, as will appear from what follows.
31. Some have made two kinds of states. Archidemus [an eminent Stoic. Arrian. Epict. iii. 2. He is called princeps dialecticorum by Cicero, Quaest Acad. iv. 67], for instance, admitted the conjectural and the definitive, excluding that of quality; because he thought that we imagine about quality thus: "What is unjust? what is iniquitous? what is it to be disobedient?" questions which he terms de eodem et alio, [περι του αυτου και του ε ερου Aristotle, Topic. i. 5] "about identity and difference." 32. With this opinion theirs is at variance who would make indeed two kinds of state, but one negative, and one juridical; the negative is the same as that which we call the conjectural, to which some have given the term negative absolutely, others partially, because they considered that the accuser employs conjecture, and the accused, denial. The juridical is that which in Greek is called δικαιολογικος, "treating of right." 33. But as quality is set aside by Archidemus, so by these writers is rejected definition, which they make dependent on the juridical state, and think that we must imagine "whether it is right that what is charged against a person should be called sacrilege," for example, "or theft, or madness." 34. Of this opinion was Pamphilus [mentioned by Aristotle, Rhet. ii. 23], but he distinguished quality into several kinds.
Many succeeding writers, altering only the names, have divided states of causes into two kinds by saying that they are either about something that is doubtful, or about something that is certain; for such indeed is the case; nor can it be otherwise than either certain that a thing has been done, or uncertain; if it is uncertain, the state is conjectural; if it is certain, there is room for other kinds of states. 35. Indeed, Apollodorus says the same thing, when he observes that the question lies either in things external, by which conjecture is settled, or in our own opinions; calling the former sort of questions πραγματικον, "practical," the latter περι εννοιας, "dependent on judgment," Those also say the same who make the two kinds of state, απροληπτον and προληπτικον, dubious and presumptive, the latter meaning what is evident.
36. Theodorus, too, expresses himself similarly, as he thinks that the question is either as to whether a thing has happened, or as to particulars relating to what is admitted to have happened, that is, περι ουσιας και συμζεζηκοτων. For in all these distinctions the first kind of state belongs to conjecture, the second to other matters. But these other matters Apollodorus makes to be two, quality and de nomine, that is definition; Theodorus four, existence, quality, quantity, and relation. 37. There are some also who make the question de eodem et alio, "about identity and difference," belong sometimes to quality and sometimes to definition.
Posidonius, too, ranges states of causes under two heads, words and things. With respect to a word, he thinks that the questions are, "Whether it has any meaning? what? how many meanings? and how it has such meaning?" With respect to things, he notices conjecture, which he calls κατ' αισθεσιν, "assumption from perception," quality, definition, κατ' εννοιαν, "rational induction," and relation. Hence also comes the distinction into things written and unwritten. 38. Cornelius Celsus himself, too, makes two general states: "Whether a thing is,'' and "of what nature it is." Under the first he includes definition, because it is equally a question whether a man who denies that he has stolen anything from a temple, or who owns that he stole from it the money of a private individual, is guilty of sacrilege. Quality he divides into fact and what is written; to what is written he assigns four legal questions, setting aside exception; quantity and intention he puts under conjecture.
39. There is also another method of division into two states, which tells us that a question must relate either to substance or to quality; and that quality is considered either in its most general sense, or with regard to particulars. 40. To substance belongs conjecture; for inquiry may be made concerning any thing "whether it has been, is, or will be;" and sometimes concerning the intention of it; and this method ia better than their's who have named the conjectural state a state of fact, as if inquiry could be made only concerning the past, and concerning what has been done. 41. As to the consideration of quality in its most general sense, as " Whether that is honorable which is everywhere commended," it rarely occurs in judicial proceedings; but with reference to particulars, questions arise either about some common term, as "Whether he has committed sacrilege who has stolen a private person's money from a temple," or about a name given to some particular act, when it is certain that an act has been done, and there is no doubt what the act that has been done is.
Under this head are included all questions about what is honorable, just, expedient. 42. In these states, too, are said to be comprehended others, because quantity is sometimes referred to conjecture, as in the question, "Is the sun greater than the earth?" and sometimes to quality, as when it is asked, "What degree of punishment or reward it is just that some particular individual should receive;" because, also, exception has relation to quality, and definition is concerned with exception; 43. and because, moreover, contradictory laws, and the ratiocinatory state, that is, the syllogism, and questions in general, regarding writings and the intention of the writer, depend on considerations of equity; (except that this last case sometimes admits of conjecture, as when we inquire what the legislator meant;) but ambiguity must necessarily be explained by conjecture, because, as it is plain that the words may be understood in two ways, the question is solely about the intention.
44. By a great number of writers there are recognized three general states, a division which Cicero also adopts in his Orator [C. 15. See also De Orat. i. 31; ii. 24 and 26], expressing his opinion that everything that can become a subject of controversy or dispute is comprehended in the questions Whether it is, what it is, and of what particular nature it is; the names [the first is the status conjecturalis; the second the status definitirus; and the third qualitas] are too well known to make it necessary to mention them. Patrocles [II. 15, 16] is of the same opinion. 45. Marcus Antonius also made three states, as in the following words: "The questions from which all pleadings arise are but few: whether a thing has been done, or has not been done; whether it is right or wrong; whether it is good or bad." But since that which we are said to have done rightly, is understood in such a sense that we appear to have acted, not merely in conformity with the law, but in accordance with equity, those who have followed Antonius have been inclined to distinguish those states more exactly, and have in consequence called them the conjectural, the legal, and the juridical; a distinction which is approved by Virginius.
46. Of these they then made several species, so as to put under the legal state definition, as well as other states which have their name from what is written; as that of contradictory laws, which is called αντινομια: that of writing and meaning or intention, that is, κατα ρητον και διανοιαν: that of μεταληψις, which we distinguish by different terms, as translative, transsumptive, transpositive; the syllogism, which we call the ratiocinatory or collective state; and that of ambiguity, which is called in Greek αμφιβολια: all which I have enumerated, because they are called states by most writers, though some would prefer that they should be called legal questions.
47. Athenaeus has made four states, the προτρεπτικη or παρορμητικη στασις, that is, the exhortative, which belongs properly to the suasory; the συντελικη, by which it appears from what follows, rather than from the name itself, that the conjectural is signified; the υπαλλακτικη, (which is the definitive,) for it consists in a change of terms [because the name, which is given to the charge by the accuser, is changed by the defendant, and another put in its place; as, "I grant that it is theft; I deny that it is sacrilege"]; and the juridical, which he distinguishes by the same Greek name [δικαιολογικη] as other writers. For there is, as I said, great variation as to names. 48. There are some who think the υπαλλακτικη στασις is the exceptional, looking to the notion of change contained in the name. Others, as Caecilius and Theon, have made the same number of states, but of a different kind: Whether a thing is? what it is? of what species it is? how great it is?
49. Aristotle in his Rhetoric divides the whole matter into three parts: What is true, what is to be sought or avoided, (which belongs to the deliberative department of oratory,) and the consideration de eadem atque alio, "about identity and difference;" but, by division, he arrives at such a conclusion that he thinks we must examine, as to any thing, whether it is, of what nature it is, how great it is, and of what parts it consists. [Arist. Rhet. iii. 17, 1, and i. 13, 9.] In one place, however, he notices the force of definition, where he says that some charges are thus met: "I have taken, but I have not stolen; I struck, but I did nothing wrong."
50. Cicero also in his books of rhetoric [De Inv. i. 8] had enumerated four states regarding fact, name, kind, and action; so that conjecture should refer to fact, definition to name, quality to kind, and right to action. Under right he had included exception. But in another place [Partit. Orat. c. 31 and 38] he treats legal questions as species of actions.
51. Some writers on rhetoric have made five states, those of conjecture, definition, quality, quantity, and relation. Theodorus also, as I remarked, adopts the same number of general heads, whether a thing is, what it is, of what species it is, how great it is, and to what it has reference. The last he regards as having most concern with comparison, since better and worse, greater and less, are terms that have no meaning unless they refer to something. 52. But relation, as I observed before, affects questions of legal right, such as, "Has this man a right to go to law?" or "Is it fit that such a person should do such a thing?" or "May he proceed against a particular person," or "at a particular time," or "in a particular manner?" for all such inquiries must have reference to something.
53. Others think that there are six states: conjecture, which they call γενεσις [because the question in it is respecting the origin or cause; as whether a thing was done, and by whom]: quality, peculiarity, that is, ιδιοτης a term in which definition is implied; quantity, which they call αξια [because it relates to quantity to show the worthiness or unworthiness, the sufficiency or insufficiency, of a thing]; comparison; exception, for which, also, a new name, μεταστασις, has been found; new, I mean, as applied to state, for it had been previously used by Hermagoras in a different way, to denote one of the various sorts of juridical questions.
54. Others have been of opinion that there are seven; by whom neither exception, nor quantity, nor comparison were admitted; but, in the place of those three, were substituted four sorts of legal questions, and added to the three [conjecture; definition; quality] states to be determined by reasoning.
55. Others have gone so far as to make eight, adding exception to the other seven.
By some writers another distinction has been introduced, that of giving the name of "states" only to the status rationales, and calling the status legales, as I said before, " questions;" as in the former the question is about fact, in the latter about the written letter. Others, on the contrary, have preferred that the status legales should be called "states," and the status rationales "questions." 66. But others have thought that there are only three status rationales, whether a thing is, what it is, and of what kind it is; Hermagoras is the only one who has made four, conjecture, peculiarity, exception, quality, to which latter he applies the expression, κατα συμβεβηκοτα, "according to accidents," adding as an explanation, "whether it happen to a person to be good or bad."
67. Quality he then distinguishes into four species, as relating to things to be sought or avoided, which fall under the deliberative department of oratory; to persons, to whom the panegyrical kind applies; to things in general, a department which he calls πραγματικη, and in which the question is about things themselves, without any reference to persons, as "whether he is free who is under trial about his liberty [assertio is a trial about the liberty of any person; as, when a free man was called to judgment with the object of making him a slave. This was termed causa liberalis]; whether riches beget pride; whether a thing is just or good;" and to judicial questions, in which similar inquiries are made, but with regard to certain definite persons; as, "whether a certain person acted justly or well in a particular transaction?"
58. Nor am I ignorant that in the first book of Cicero [De Inv. i. 11] on Rhetoric there is another explanation of the part relating to things in general, as it is there said that ''it is the department in which it is considered what is right according to civil usage and according to equity; a department with which lawyers are thought by us to be specially concerned." 50. But what the judgment of Cicero himself was respecting these books, I have already mentioned; for into their pages were thrown the various portions of knowledge which he had brought from the school when a young man, and if there is any fault in them, it is that of his instructor; whether he was moved by the circumstance that Hermagoras places first under this head examples from questions of right, or by the consideration that the Greeks call interpreters of the law πραγματικοι. 60. Cicero, however, substituted for these books his excellent dialogues de Oratore, and, therefore, is not to be blamed as if he had delivered erroneous precepts.
I return to Hermagoras. He was the first of all rhetoricians that made exception a distinct state [Cic. De Inv. i. 11], though some advances towards it, but not under that name, are found in Aristotle [Rhet. ii. 15, 8]. 61. As to legal questions, he has specified these four: that which relates to what is written and what is intended, (which he designates by the phrase κατα ρητον και υπιξαιρεσιν, that is, "the expression and the exception," the former of which terms is common to him with all other writers, the latter, "exception," has been less used,) that which is ratiocinatory or dependent on reasoning, that of ambiguity, and that which concerns contradictory laws. 62. Albutius, adopting the same division, withdraws exception, putting it under the juridical department. In legal questions also he thinks that there is no state which is properly called ratiocinatory.
I am aware that those who shall read the ancient writers with attention will find still more states; but I am afraid that what I have said on this subject has exceeded due bounds.
63. For myself, I confess that I am now inclined towards an opinion somewhat different from that which I formerly held; and perhaps it would be safest for me, if I regarded only my own reputation, to make no change in that which for many years I have not only thought but have sanctioned with my approbation. 64. But I cannot endure to be guilty of dissimulation in any point on which I give judgment, especially in a work which I am composing with a view to being of some profit to well-disposed young men; for Hippocrates [Hippocrates, as he was dressing the wound of a man who had been struck with a stone on the head, found that he had been deceived with regard to the sutures of the skull, and confessed his mistake. This is mentioned to his honor by Celsus, viii. 4, who contrasts his noble-mindedness with the meanness of little men], so celebrated in the art of medicine, is thought to have acted most honorably in acknowledging some mistakes that he had made, in order to prevent posterity from erring with him. Cicero [see Cicero, Ep. ad Attic. xiii. 12, 13, 16, 19. Having at first composed the Disputationes Academicae in two books, giving the first the title of Lucullus and the second that of Catullus, he afterwards produced another edition in four books, in which he made Varro the chief character], too, did not hesitate to condemn some of his published works and others which he wrote afterwards, as his Catullus and Lucullus, and those books on Rhetoric to which I just now alluded.
65. For longer perseverance in study would be superfluous, if we were not at liberty to find out something better than what was advanced before. Nothing however of what I then taught was useless, for what I shall now teach will recur to the same principles, so that no one will repent of having learned from me. All I intend to do, is to re-produce the same materials, and to arrange them with somewhat better effect. But I wish every one to be satisfied that I communicate new light to others as soon as I have gained it myself.
66. According to the system of most authors, then, I adhered to three ratiocinatory states, those of conjecture, quality, and definition, and one legal. These were my general states. The legal I divided into five species, those relating to writing and intention, contradictory laws, induction [collectivum statum. The same as the syllogiemus], ambiguity, and exception. 67. I now see that the fourth [Quintilian justly blames his own division, for it was a division into three species and one genus; all the members of it were, therefore, not of the same order] of the general states may be withdrawn from them; for the primary division is sufficient, by which I pronounced [the status Iegalis] some states to be ratiocinatory, others legal; thus the fourth will not be a state, but a species of question; otherwise it would be a ratiocinatory state.
68. From those also, which I called species, I withdrew exception; having frequently indeed observed, (as all who listened to my instructions can remember,) and having asserted even in those lectures which were published without my consent, (but in which I however included this remark,) that the state of exception can scarcely be found in any cause so evidently that some other may not seem to be rightly named in that cause instead of it; and that in consequence that state had by some writers been wholly set aside. 69. Yet I am not ignorant that many cases are treated under this state of exception, as in almost all causes in which a person is said to have failed from irregularity in form [it was customary among the Romans, that if any one brought an action irregularly, or demanded anything more than he was justified in demanding, he lost his cause, and was said either formula cadere or causa cadere], such questions as these arise: "Whether it was lawful for such a person to bring an action at all, or against some other particular person, or before some particular judge, or at some particular time," and whatever other similar questions may be asked.
70. But persons, times, suits, and other matters, are considered under the state of exception for some pre-exislent cause; so that the question lies, not in the state of exception itself, but in the cause for which recourse is had of the state of exception. "You ought not to seek restitution of this deposit before the praetor, but before the consuls; for the sum is too great to come under the cognizance of the praetor;" the question then is, "whether the sum is too great for the praetor's cognizance;" and this is a question as to fact. 71. "It is not lawful for you to proceed against me, for you could not become agent for the opposite party;" here the question for judgment is, " whether he could become agent." "You ought not to have proceeded by interdict, but to have made a demand;" the matter in doubt is, "whether the proceeding by interdict was right."
72. All these points come under the head of legal questions. Do not prescriptions, also, (even those in which exception appears most manifest,) lead to the same sorts of questions as those laws under which the action is brought, so that the inquiry will be other about the name of an act [as whether a man has committed sacrilege or simple theft], about what is written and the intent of the writer, or about something to be settled by argument. The state then springs from the question; the state of exception does not embrace the point for which the pleader contends, but the question because of which he contends. 73. This will be made plainer by an example: "You have killed a man; I have not killed him;" the question is "whether the accused did kill the man," the state is the conjectural [quaestio de facto].
The following case is different: "I have a right to proceed against you; you have not;" when the question will be, "whether he has a right," and hence the state; for whether he be allowed to have a right or not, belongs to the event, not to the cause, and to that which the judge may decide, not to that because of which he may give such decision. 74. This is similar to it: " ou deserve to be punished; I do not deserve to be punished;" the judge will see whether he does deserve to be punished; but here there will not be either question or state; where then? "You deserve to be punished, for you have killed a man; I have not killed a man:" here then is a question "whether he did kill a man?" "I ought to be honored; you ought not; " is there here any state? I think not. "I ought to be honored, for I have killed a tyrant; you have not killed a tyrant;'' here there is both question and state [status conjecturalis, or facti quaestio].
75. In like manner, "You have no right to proceed against me; I have a right," has no state; where is it then? "You have no right to proceed against me, because you are infamous;" here the question is "whether he is infamous," or "whether an infamous man has a right to proceed against another;" and here are both questions and states [of two kinds; first, the status conjecturalis or definitivus, whether the man was really infamous; secondly, the status qualitatis, whether an infamous person has the right of going to law]. The kind of cause is therefore exceptional, like the comparative, and that of recrimination.
76. But, you will say, "I have a right; you have not," is similar to "you have killed; I did right in killing;" I do not deny that it is so; but this does not make a state; for these are not propositions, (if they were, the cause would receive no explanation from them,) as propositions must be accompanied with reasons. "Horatius committed a crime, for he killed his sister; he committed no crime, for he had a right to kill her who mourned at the death of an enemy;" the question here will be, "whether this was a sufficient reason for killing her;" and thus the state will be that of quality. 77. In like manner with regard to exception: "You have no right to disinherit [a father could not disinherit his son without taking him before the judges, and proving his unworthiness by a regular legal process] your son, for an infamous person is not allowed to engage in any legal process; I have a right, for disinheriting is not a legal process;" the question is, "what is a legal process?" here we shall use definition; "you are not allowed to disinherit;" here will be the syllogism [that is, the status called syllogismus]. The case will be similar with regard to all matters concerning the ratiocinatory and legal states.
78. I am not unaware, however, that some have included exception under the ratiocinatory kind of states, in this way: "I have killed a man, but by order of the emperor;" "I gave up the offerings in the temple to a tyrant, but he compelled me to do so;" "I quitted my post, but through being harassed by bad weather, floods, ill-health;" that is, it was not my fault, but the fault of those circumstances. 79. From these authors I differ still more widely; for it is not the act that is brought under the exceptional state, but the cause of the act, as happens indeed in almost every defense; and besides, he who adopts such a mode of defense, does not depart from the state of quality [that is, from the status qualitatis assumptionis, which the Greeks call μεταστασις, and the Latins remotio criminis, or sometimes purgatio], for he says that he himself is free from blame; so that two kinds of quality [quality is twofold; absolute, when we contend that a deed is in itself just and right; assumptive or presumptive, when we attempt to palliate, by assumed arguments, that which we cannot prove to be right in itself, and to show that the agent is not to be blamed] are rather to be distinguished; one, by which the act and the accused party, the other, by which the accused only, is defended [when we throw the blame upon circumstances].
80. We must therefore adhere to those writers whose authority Cicero has followed, and who say that there are three points about which there is a question in every cause; whether a thing is, what it is, and of what species it is; a distinction which even nature herself teaches us; for there must first of all be something which is the object of the question; concerning which it certainly cannot be determined what and of what species it is, until it be settled that it really exists; and this, therefore, is the first question. 81. But as to that which is proved to exist, it does not immediately appear what it is. When this point is also decided, there remains, last of all, the quality; and, when all these particulars are settled, nothing further is left.
82. Under these heads are contained indefinite [theses, or general questions] and definite [referring to certain times, places, circumstances] questions; some of these heads are considered in whatever kind of matter we discuss, whether demonstrative, deliberative, or judicial; and they comprise also suits at law, whether regarded with reference to ratiocinatory or to legal questions; for there is no legal dispute which is not to be resolved by the aid of definition, consideration of quality, or conjecture. 83. But to those who are instructing the ignorant, a plan more extended at first, and a road, if not marked out by the straightest possible line, yet more easy and open, will not be without advantage. Let students learn, therefore, before all, that there are four modes of proceeding in every cause; which four modes he who is going to plead ought to make it his first business to consider.
For, to begin first of all with the defendant, by far the strongest mode of defense is, if the charge which is made can be denied; the next, if an act of the kind charged against the accused can be said not to have been done; the third, and most honorable, if what is done is proved to have been justly done. If we cannot command these methods, the last and only mode of defense is that of eluding an accusation, which can neither be denied nor combated, by the aid of some point of law, so as make it appear that the action has not been brought in due legal form. 84. Hence arise questions referring either to the general action or to exception; for there are some things objectionable in their own nature, yet allowed by law, as it was permitted, for instance, by the twelve tables, that the body of a debtor might be divided among his creditors [see Aul. Gell. xx. 1]; but public feeling has set aside that law; and some things may be equitable in themselves, but prohibited by law, as liberty in making wills.
85. By the accuser nothing more is to be kept in view than that he must prove that something was done; that a particular thing was done; that it was done wrongfully; and that he brings his action according to law. Thus every cause will depend upon the same sorts of questions, only the allegations of the different parties will sometimes be interchanged; as in those causes in which the question is about a reward, it is for the plaintiff to prove that what was done was right.
86. These plans, as it were, and forms, of proceeding, which I then called general states, resolve themselves, as I showed, into two general kinds, the one dependent on reasoning, the other on legality. The one dependent on reasoning is the more simple, as it consists merely in the contemplation of the nature of things; and it is sufficient, therefore, in respect to it, to mention conjecture, definition, quality. 87. Of legal questions there must necessarily be more species, as laws are numerous, and have various forms. We rest on the words of one law, and on the spirit of another; when we find no law ready to support us, we press some one into our service; we compare some, one with another; we interpret some in a manner different from that in which they are usually understood.
88. Thus from those three states [those of conjecture, definition, and quality] spring the following resemblances as it were of states, sometimes simple, sometimes mixed, yet always wearing their own peculiar appearance, as that which refers to what is written and what is intended, which, without doubt, is included under quality or conjecture; that which is treated by syllogism, which has regard especially to quality; that which respects contradictory laws, which belongs to the same states as what is written and what is intended; and that referring to ambiguity, which is always settled by conjecture. 89. Definition also is common to both kinds [he alludes to the two general questions, de re and de scripto] of questions, those which depend on the consideration of matters of fact, and those which are to be decided by adherence to the written letter.
All these questions, though they fall under those three states, yet since they have severally, as I said, something peculiar, appear necessary to be explained to learners; and they may be allowed to call them either legal states or questions, or secondary heads, if they but understand that nothing is sought in them but what is contained under the three general heads which I have before mentioned.
Overview comparing Quintilian's later system of status oratorii with his former system and that of other authors, Cicero, the writer ad Herennium, and Hermogenes.
Legal quality is divided into questions respecting
90. But with questions referring to quantity, to a whole as consisting of parts, to relation, and, as some have thought, to comparison, the case is not the same; for they are to be regarded, not as concerning differences in the laws, but as dependent on reasoning alone, and are, therefore, always to be placed under conjecture or quality; as when we ask with what intention a person did anything, or at what time, or in what place. 91. But I shall speak of particular questions when I proceed to treat of the rules for division.
This is agreed among all writers, that in every simple cause there is but one single state; but that many questions, which, as secondary points, are referred to that in which the main point for judgment is contained, may be comprised in one and the same cause; (92. I also think that it is sometimes doubtful what state we ought to adopt, as many means of defense are employed against one accusation; and as it is said with regard to the color of a statement of facts, that that is the best which a speaker can best maintain, so it may be said in this case also, that that state should be chosen, in support of which the orator can put forth most strength; 93. and accordingly, in settling a mode of defense for Milo, one course found favor with Cicero, when he pleaded the cause, and another with Brutus, when he composed a speech for Milo by way of exercise; as Cicero maintained that Clodius had been killed deservedly, as a lier-in-wait, yet without intention on the part of Milo; but Brutus even gloried on behalf of Milo that he had killed a bad citizen;) 94. but that in complex causes two or three states may be found, either of different kinds, as when a person denies that he did one thing [here will be the status conjecturalis, or facti quaestio], and maintains that he was in the right in doing another [here will be the status qualitatis absolutae], or of the same kind, as when a person denies two charges, or all the charges brought against him.
96. This happens, also, when there is a question about some one thing which several persons are trying to obtain, either all relying on the same kind of claim, as that of relationship; or some on one kind and some on another, as some on a will and some on relationship. But whenever there are several claimants, and one kind of defense is made against one and another against another, there must necessarily be several kinds of states; as in the following subject of controversy, the law standing thus: 96. Let wills made according to the laws be valid. Let the children of intestate parents be heirs. Let a disinherited son possess none of his father's property. Let an illegitimate son, if born before one that is legitimate, be to his father as legitimate; if born after, only as a citizen. Let it be lawful for every father to give his son in adoption. Let it he lawful for every son given in adoption to return into his own family if his natural father dies without children. 97. A father, who, having two sons, had allowed one to be adopted by another man, and had disinherited the other, had afterwards an illegitimate son, and then, after appointing the disinherited son his heir, died. All the three laid claim to the estate. (Let me observe that the Greeks call an illegitimate son νοθος: we have no Latin term exactly corresponding to it, as Cato remarks in one of his speeches, and, therefore, adopt the Greek word. But let us attend to our subject.)
98. To him who was named as heir in the will was opposed the law, Let a disinherited son possess none of his father's property, and hence arose the state referring to what is written and what is intended, it being inquired "whether he could inherit in any way? whether according to the intention of the father? whether as being named as heir in the will?" As to the illegitimate son, there arise two considerations, that he was born after the legitimate sons, and was not born before a legitimate one. 99. The first consideration goes into the syllogism [the first question will be treated under the status legalis which is called the syllogism, as it does not rest on the express words of the law, but infers from some part of the law something favorable to the matter in hand] or inference, "whether sons alienated from the family [whether by adoption or by being disinherited] are in the same condition as if they had never been born?" The other is that regarding what is written and what is intended; for it is admitted that he was not born before a legitimate son; but he will rest his cause on the intention of the law, which he will say was, that an illegitimate son, born when there was no longer a legitimate son in the family, should be considered as legitimate.
100. He will also set aside the written letter of the law, by saying that "it is certainly no detriment to an illegitimate son if a legitimate one was not born after him," and will insist on this argument: Suppose that an illegitimate son only be born; in what relation will he stand to his father? only as a citizen? Yet he will not be born after a legitimate son. Will he be as a son in every respect? yet he will not Be born before a legitimate one. If, therefore, we can conclude nothing from the words of the law, we must take our stand on the intention of it. 101. Nor let it perplex any one that two states [one, the syllogism; the other, de scripto et voluntate] arise from one law; the law is two-fold, and has accordingly the form of two laws. To the son wishing to return into the family, it will be said, in the first place, by him who is named as heir in the will, "Though it be lawful for you to return, I am still heir;" and the state will be the same [namely, de scripio et voluntate] as in regard to the claim of the disinherited son; for the question is "whether a disinherited son can be heir?"
102. In the next place, it will be said by both, (as well by the one who is named heir as by the illegitimate one,) "It is not lawful for you to return into the family, for our father did not die without children." But, in saying this, each of the two will rest his case on his own peculiar ground; for the disinherited son will assert, "that a disinherited son is also one of the children," and will draw a proof of his assertion from the very law by which it is pretended that he is set aside; as it would be superfluous, he would say, for a disinherited son to be forbidden to inherit the property of his father, if he were to be accounted as a stranger, but, as he would have been, by his right as a son, the heir of his father if he had died without a will, the law is now brought against him, which, however, does not prevent him from being a son, but from being an heir. The state, then, will be that of definition: the question, "what is a son?"
103. The illegitimate son, on his part, will allege that his father did not die without children, resting on the same arguments which he used in making his claim at first, to show that he was a son; unless he also have recourse to the state of definition, and ask, "whether illegitimate children are not children?" There will thus be in the one cause either two special legal states, those of the letter and intention and the syllogism, besides one of definition, or those three which are the only real and natural states, that of conjecture, with regard to the writing and intention of the writer, that of quality in the syllogism, and that of definition, which sufficiently explains itself.
In every kind of legal controversy, too, must be comprehended a cause, a matter for judgment, and the containing point [the continens, το συνιχον, that which contains the very substance of the cause; that which is the chief matter in the cause to be pleaded], for there is nothing brought into question in which there is not some reason, something to which judgment is directed, and something which chiefly contains the substance of the matter in question. But as these things vary according to the nature of causes, and as they are taught by most of the writers on judicial pleadings, let them be reserved for the part in which I shall treat of such affairs. For the present, as I have divided causes into three kinds, I shall follow the order which I have prescribed to myself.
1. I shall commence with that species of oratory which is devoted to praise and censure. This species Aristotle, and Theophrastus who follows him, seem to have excluded altogether from the practical department of speaking [opposing the epideictic, as being for display, to the pragmatic, or practical], and to have considered that its only object is to please the audience, an object which is indeed intimated by its name epideictic from επιδεικνυμι, to display. 2. But the usage of the Romans has given it a place in civil transactions; for funeral orations are often a duty attached to some public office, and are frequently assigned to the magistrates by a decree of the senate; and to commend or censure a witness is not without effect on the result of trials; while it is lawful, also, to produce panegyrists on behalf of accused persons [if a man, for instance, was publicly accused, and had previously governed a province well, ten deputies might be sent from it to appear as his laudatores or eulogists on his trial. See Cic. in Verr. v. 22]; and the written compositions published against Cicero's competitors [Quintilian means the attacks made by Cicero upon Catiline and Antonius, his competitors for the consulship], against Lucius Piso, Clodius, and Curio, are full of invective, and yet were received as opinions in the senate.
3. But I do not deny that some discourses of this kind have been composed merely for ostentation, as those in praise of the gods, and of the heroes of former times; a fact by which a question noticed above is solved, and by which it is shown that those were mistaken who thought that an orator would never speak on any but doubtful subjects. 4. Are the praises of Jupiter Capitolinus, a perpetual subject at the sacred contests, doubtful? Or are they not treated in oratorical style?
But as panegyric which is employed for practical purposes, requires proof, so that which is composed for display, calls sometimes for some semblance of proof; 5. as the orator who should say that Romulus was the son of Mars, and was nursed by a she-wolf, would offer in proof of his celestial origin, the the arguments that, being thrown into a running stream, he could not be drowned; that he had such success in all his undertakings, that it is not incredible that he was sprung from the god who presides over war; and that the people of those times had no doubt that he was even received into heaven. 6. But some particulars in such subjects will be treated as if they required defense; as in a panegyric on Hercules, the orator would perhaps apologize for his change of dress with the queen of Lydia, and the tasks, as we are told, imposed upon him. But the peculiar business of panegyric is to amplify and embellish its subjects.
This kind of eloquence is devoted chiefly to gods or men; though it is sometimes employed about animals and things inanimate. 7. In praising the gods, we shall, in the first place express a general veneration for the majesty of their nature, and shall then eulogize the peculiar power of each, and such of their inventions as have conferred benefit on mankind. 8. In regard to Jupiter, for instance, his power in ruling all things is to be extolled; in regard to Mars, his supremacy in war; in regard to Neptune, his command of the sea. In respect to inventions, we extol, in praising Minerva, that of the arts; in praising Mercury, that of letters; in praising Apollo, that of medicine; in praising Ceres, that of corn; in praising Bacchus, that of wine.
Whatever exploits, also, antiquity has recorded as performed by them, are to receive their encomium. Parentage, too, is a subject of panegyric in regard to the gods, as when any one is a son of Jupiter; antiquity, as to those who were sprung from Chaos; and offspring, as Apollo and Diana are an honor to Latona. 9. We may make it a subject of praise to some that they were born immortal; and to others, that they attained immortality by their merits; a kind of glory which the piety of our own emperor has made an honor to the present age.
10. The praise of men is more varied. First of all it is distinguished with respect to time, that which was before them, and that in which they themselves lived; and, in regard to those who are dead, that also which followed their death. Antecedent to the birth of a man will be his country, parents, and ancestors, to whom we may refer in two ways; for it will be honorable to them either to have equalled the nobility of their forefathers, or to have ennobled a humble origin by their achievements. 11. Other subjects for eulogy may also sometimes be found in the time that preceded a man's birth; such as occurrences, for example, that denoted his future eminence by prophetic indications or auguries; as the oracles are said to have foretold that the son of Thetis would be greater than his father.
12. The praises of a man personally should be derived from the qualities of his mind, body, or external circumstances. The merits of corporeal and accidental advantages are of less weight than those of the mind, and may be treated in many ways. Sometimes we celebrate beauty and strength with honor of words, as Homer extols them in his Agamemnon and Achilles. Sometimes comparative weakness may contribute much to our admiration, as when Homer says that Tydeus was small of stature, yet a warrior. 13. Fortune, too, gives dignity, as in kings and princes; for in their condition there is the ampler field for displaying merit; and among people of other conditions, the less resources a person has, the greater honor he acquires by making a praiseworthy use of them. All advantages, indeed, which are external to us, and which have fallen to us accidentally, are not subjects of praise to a man merely because he possessed them, but only in case he employed them to good purpose. 14. For wealth, and power, and influence, as they offer most opportunities for good or evil, afford the surest test of our morals; since we are sure to be either better for them or worse.
15. Praise of the good qualities of the mind is always just; but more than one way may be pursued in the treatment of it; for sometimes it is more honorable to follow the progress of a person's life and the order of his actions; so that his natural genius, shown in his early years, may be first commended, then his advancement in learning, and then his course of conduct, including not only what he did, but what he said; sometimes it will be better to divide our praises among the several kinds of virtues: fortitude, justice, temperance, and others, and to assign to each the honor of that which has been done under its influence. 16. Which of these two methods will be the more eligible for us, we shall have to consider according to our subject, keeping in mind, however, that the celebration of those deeds is most pleasing to the audience which the object of our praise is said to have been the first to do, or to have done alone, or with the aid of but few supporters; and whatever else he may have effected beyond hope or expectation, and especially what he has done for the good of others rather than for his own.
17. Of the time which follows the death of persons, it is not always in our power to treat; not only because we sometimes praise them while they are still living, but because few occasions offer on which divine honors, or public decrees, or statues erected at the expense of the state, can be celebrated. 18. Among such subjects for eulogy, I would reckon monuments of genius, which may be admired through all ages; for some, like Menander [the comic poet; Aul. Gell. xvii. 4], have obtained more justice from the judgment of posterity than from that of their contemporaries. Children reflect glory upon their parents, cities on their founders, laws on those who have made them, arts on their inventors; and institutions also on their authors, as it was appointed by Numa, for instance, that we should worship the gods, and by Publicola that the consuls should lower the fasces before the people.
19. The same method will be observed in censure, but so as to set things in a different light; for meanness of origin has been a dishonor to many; and nobility itself has rendered others more conspicuous and more odious for their vices. To some, as is said to have been the case with Paris, mischief which it was foretold they should cause, has produced dislike; on others, as Thersites and Irus, deformity of person, or misfortune, has thrown contempt. In regard to others, good qualities corrupted by vices, have rendered them hateful; thus we find Nireus represented by the poets as cowardly, and Pleisthenes as debauched. 20. Of the mind, too, there are as many vices as virtues; and both, as in panegyric, may be treated in two ways. On some men ignominy has been thrown after death; as on Maelius, whose house was levelled with the ground, and Marcus Manlius, whose praenomen was not allowed to be borne by his posterity.
21. Of the vicious, also, we hate even the parents. To founders of cities it is an opprobrium to have drawn together a people noxious to those around them; as was the case with the original author of the Jewish superstition [Moses or Jesus? As Quintilian elsewhere reveals, he had represented Queen Berenice; she made an unusual choice of advocate if she hired an anti-semite]; so the laws of the Gracchi brought odium on their name; and any example of vice given to posterity disgraces its author, as that of the obscenity which a Persian is said to have first ventured to practice with a woman of Samos. 22. With respect to the living, also, the judgments formed of them by others are proofs of their character; and the honor or dishonor shown to them proves the orator's eulogy or censure to be just.
23. But Aristotle thinks it of importance to the orator to consider the place in which anything is to be commended or censured; for it makes a great difference what the manners of the audience are, and what opinions are publicly entertained among them; as they will be most willing to believe that the virtues which they approve are in him who is eulogized, or that the vices which they hate are in him whom we censure. Thus the judgment formed by the orator as to the effect of his speech, even before the delivery of it, will be pretty certain. 24. Some praise of his audience, too, should always be mingled with his remarks, (for it makes them favorably disposed towards him,) and, whenever it is possible, should be so introduced as to strengthen his cause.
A panegyric on literary studies will be received with less honor at Sparta than at Athens; a panegyric on patience and fortitude with greater. Among some people it is honorable to live by plunder; among others to respect the laws. Frugality would perhaps have been an object of hatred with the Sybarites; luxury would have been the greatest of crimes among the ancient Romans. 25. Similar diversity is found in individuals. A judge is most favorable to a pleader when he thinks that his sentiments coincide with his own. Aristotle also directs, (a precept which Cornelius Celsus has since carried almost to excess,) that, as there is a certain proximity of virtues and vices, we should sometimes avail ourselves of words that approach each other in sense, so as, for instance, to call a person brave instead of rash, liberal instead of prodigal, frugal instead of avaricious; or, on the contrary, the vice may be put for the virtue. This is an artifice, however, which a true orator, that is, a good man, will never adopt, unless he happen of to be led to it by a notion promoting the public good.
26. Cities are eulogized in the same way as persons; for their founder is to be considered as their parent; and antiquity confers much dignity on their inhabitants; as we see in regard to people who are said to be sprung from the soil of their country. In their transactions there are the same virtues and vices as in the conduct of individuals. Some have peculiar advantages to be noticed, as in their situation or defenses. Citizens may be an honor to them, as children to parents.
27. Encomiums may also be bestowed on public works, in respect to which magnificence, utility, beauty, and the architect of them, are commonly considered. Magnificence, as in temples; utility, as in walls; beauty, and the architect, in both.
Panegyrics on places are also found; as that on Sicily in Cicero [Verr. ii. 1, seqq.; also iv. 48]; in which we regard, in like manner, beauty and utility; beauty in maritime regions, plains, and pleasant spots; utility, in respect to healthfulness or fertility of soil. There is a kind of general praise, too, for honorable sayings or actions. 28. There is praise, indeed, for things of every kind; for eulogies have been written on sleep and death, and by physicians on certain sorts of food.
While I do not admit, therefore, that this laudatory department of oratory relates only to questions concerning what is honorable, I think, at the same time, that it is chiefly comprised under quality [the state of quality, which refers not leas to what is honorable than to what is just]; though certainly all three states [those of conjecture, quality, and definition] may enter into this kind of composition, and Cicero [Topic, c. 25] has observed that Caius Caesar has availed himself of them in his invective on Cato. But the whole of panegyrical oratory bears some resemblance to deliberative, because, for the most part, that which is recommended in the one is praised in the other.
I am surprised, also, that deliberative oratory is confined by some authors wholly to matters of utility. If we ought to follow one sole object in it, the opinion of Cicero [De Orat. ii. 82] would have greater weight with me, who thinks that this department of speaking is chiefly occupied about what is honorable. Nor do I doubt, indeed, that those who adopt the former opinion, consider, according to a very noble principle, that nothing is advantageous but what is honorable. 2. This notion would certainly be very just, if the resolutions of the good and wise were always ready to support us.
But in addressing the unlearned, to whom our opinions must often be delivered, and especially in haranguing the people, the majority of whom are ignorant, the two must be kept distinct, and we must speak more in conformity with ordinary apprehension. 3. For there are many who, though they may consider an action to be honorable, do not immediately allow it to be sufficiently advantageous, and, led by the prospect of advantage, approve what they cannot doubt to be highly dishonorable, as the treaty with the Numantines [Florus, ii. 18; Veil. Pat. ii. 90] and the passing under the yoke at the defile of Caudium [Liv. ix. 1-11].
4. Nor is it sufficient to include deliberative oratory in the state of quality, in which is comprised the question of what is honorable and what is useful; for often, in respect to these, there is room for conjecture; at times some definition is to be considered; and occasionally, too, legal inquiries may occur, especially in reference to private proceedings, if ever a doubt arises whether a thing be lawful. Of conjecture I shall speak more fully a little below. 5. As to definition, meanwhile, there is this question in Demosthenes, "Whether Philip should give or restore Halonnesus [the island of Halonnesus was anciently hold by the Athenians but, in the time of Philip, was occupied by pirates, whom Philip ejected from it, but, when the Athenians asked for possession of it, he refused to give it them, saying that it was his own] to the Athenians?" and in Cicero, in his Philippics, "What is a tumult?" [Philipp. viii. 1, 2. The senate deliberated whether they should call the hostile operations against Mark Antony a bellum or a tumultus.] Is there not, too, the question, similar to those in judicial causes, about the statue of Servius Sulpicius, "whether statues are to be erected to those only who perish on an embassy by the sword?" [Philipp. ix. 1. Sulpicius was sent on an embassy to Mark Antony, and being unwell at the time, and it being winter, suffered so much from the journey that he died.] 6. The deliberative department of oratory, therefore, (which is also called the suasory,) while it consults concerning the future, inquires also into the past. It has two objects, to persuade and to dissuade.
An exordium, such as is usual in judicial pleadings, it does not require; because whoever consults an orator is already well-disposed to hear him. Yet the commencement, whatever it be, ought to have some resemblance to an exordium; for we must not begin abruptly, or with whatever we may fancy, because in every subject there is something naturally first. 7. In speaking before the senate, and, indeed, before the people, the same object is to be kept in view as in addressing judges, namely, that of securing the goodwill of the majority of those to whom we speak. Nor is this to be thought surprising, when the favor of the audience is sought even in panegyrics, where the purpose is not to attain any advantage, but merely to bestow praise.
8. Aristotle, indeed, and not without reason, thinks that we may often commence, in deliberative speeches, with an allusion to ourselves, or to the character of him who differs in opinion from us; borrowing this method, as it were, from judicial pleadings; sometimes in such a manner, that our subject may be made to appear of less or greater importance than our audience imagine it [Rhet. iii. 14, 11]. 9. In panegyrics, he thinks that the exordium may be allowed the utmost latitude; since it is sometimes taken from something foreign to the subject, as Isocrates has taken his in his oration in praise of Helen; [Isocrates commences with remarks on the rhetoricians and sophists] or from something bordering on the subject, as the same orator, in his Panegyric, complains that "more honor is paid to the good qualities of the body than to those of the mind;" and as Gorgias, in his oration at the Olympic games, extols those who first instituted such meetings. Sallust, following, doubtless, the example of these orators, has commenced his histories of the Jugurthine War and the Conspiracy of Catiline with introductions having no relation to his narratives. 10. But I am now to speak of deliberative oratory, in which, even when we adopt an exordium, we ought to content ourselves with one that is short, resembling as it were an initial chapter or statement.
As to a regular statement of facts, a private subject of discussion will never require it, at least a statement of the matter on which an opinion is to be given; for no man is ignorant of the particulars on which he consults others. 11. Statements, however, of many external circumstances relative to the subject of deliberation may be introduced. In deliberative addresses to the people a statement setting forth the order of circumstances is indispensable. 12. Deliberative oratory requires appeals to the feelings more than any other kind of eloquence; for indignation is often to be kindled and allayed; and the minds of the audience are to be moved to fear, eagerness, hatred, benevolence. Sometimes, too, pity is to be excited, whether we have, for example, to recommend that aid be given to a besieged town, or whether we be called upon to lament the overthrow of a people in alliance with us.
13. But what is of most weight in deliberative speeches is authority in the speaker; for he who desires everybody to trust to his opinion about what is expedient and honorable, ought to be, and to be esteemed, a man of the greatest judgment and probity. In judicial pleadings it is commonly thought allowable for a man to indulge, in some degree, his own feelings; but every one supposes that counsel is given by a speaker in accordance with his moral principles.
14. Most of the Greek rhetoricians have been of opinion that the business of all this kind of oratory is with addresses to the multitude, and have confined it wholly to affairs of government. Even Cicero [De Orat. ii. 81-83] considers it chiefly with reference to that department, and accordingly says that for those who are to give advice concerning peace, war, levies of troops, public works, or revenues, the two things chiefly to be known are the resources and the manners of the people whom they address; so that his arguments may be derived at once from the particular circumstances and from the character of his hearers. 15. To me it appears that there is greater variety in this field of eloquence; for the classes of persons who consult, and the kinds of advice that may be given, are extremely numerous.
In persuading and dissuading, then, three particulars are chiefly to be regarded: what is the subject of deliberation; who those that deliberate are; and what is the character of him that would influence their deliberations.
16. As to that which is the subject of deliberation, it is either certain that it may be carried into effect, or uncertain. If it be uncertain, its uncertainty will be the sole point for consideration, or, I should say, the chief point, for it will often happen that we shall assert, first of all, that a thing, even if it could be done, ought not to be done, and, next, that it cannot be done. But when the question is respecting something uncertain, the point is conjectural [that is, status conjecturalis, or facti quaestio], as whether the Isthmus can be cut through, or the Pontine marshes drained [respecting both these undertakings, see Suet. Caes. c. 44; Calig. c. 21; Nero, c. 19. On digging through the Isthmus, there is a little treatise attributed to Lucian], or a harbor made at Ostia? Or whether Alexander was likely to find lands beyond the ocean?
17. But even in regard to things which are acknowledged to be practicable, there will sometimes be room for conjecture: as if it were inquired, for instance, whether it would ever happen that the Romans would subdue Carthage; whether Hannibal would return if Scipio transported his army into Africa; whether the Samnites would keep faith if the Romans were to lay down their arms. As to some things, too, it is credible both that they can be done, and that they will be done, but at some other time, or in some other place, or in some other manner.
18. Where there is no place for conjecture other points are to be regarded. In the first place the deliberation will be held, either on account of the matter itself, on which opinions are asked, or on account of some extrinsic reasons that affect it. The senate deliberates, for example, with regard to the matter itself, when they consider whether they shall vote pay for the army [Livy, v. 59, relates that the senate decreed pay for the soldiers from the public treasury, they having previously supported themselves in the field at their own expense]. 19. This is a simple question. Reasons are adduced for doing a thing, as when the senate deliberates whether they shall deliver up the Fabii to the Gauls threatening war [Livy, v. 30]; or for not doing it, as when Julius Caesar deliberates whether he shall persist in marching into Germany, when his soldiers were everywhere making their wills [at the time when he was going to march against Ariovistus: Caes. B. G. i. 39].
20. These two questions offer more than one point for consideration; for as to the former, the reason for deliberating is, that the Gauls are threatening war, but a question may also be raised, whether even, without such threatening, those ought not to have been given up, who, being sent as ambassadors, had engaged in battle contrary to law, and had killed the king to whom they had received communications? 21. As to the other subject, Caesar would, doubtless, not have deliberated at all, if it had not been for the consternation of his troops; yet there is room for inquiring whether, independently of that circumstance, it would have been proper for him to proceed into Germany. But we must always speak first on that point which might be a subject for deliberation even if other circumstances were detached from it.
22. Some have thought that the topics for persuasion are the three considerations what is honorable, what is useful, and what is necessary. For the introduction of the third I find no motive [according to the opinion of Aristotle, Rhet. i. 4, 2]; for, when any force oppresses us, it may be necessary for us to suffer something, but certainly not to do anything; but it is about doing that deliberation is concerned. 23. Or if they call that necessity to which men are driven by the fear of some greater evil, the question respecting it will be one of expediency; as if the inhabitants of a besieged city, inferior in numbers to the besiegers, and in want of water and provisions, deliberate about surrendering to the enemy, and it be said, that it is necessary for them to surrender, it must be added, for otherwise they must be destroyed, and thus it appears that it is not necessary for them to surrender, for the very reason that they may he destroyed if they prefer to submit to destruction. In fact, the Saguntines [Liv. xxi. 14; Sil. Ital. ii. 696] did not surrender, nor those who were surrounded in the vessel of Opitergium [see Flor. ii. 83; Lucan, iv. 462 seqq. They put one another to death].
24. In such circumstances, therefore, the question will be either concerning expediency, alone, or there will be hesitation between what is expedient and what is honorable. But, it may be said, if a man wishes to have children, he is under the necessity of taking a wife. Doubtless; but he who wishes to have children must first be convinced that he ought to take a wife; 25. and consequently there appears to me to be no place for deliberation when there is necessity, any more than when it is settled that a thing cannot be done; for all deliberation is about something doubtful. Those, therefore, have made a better distinction who have called the third head δυνατον, which our countrymen term possibile, "possibility;" and though our Latin term may seem uncouth, yet it is the only one to be found.
26. That these three considerations do not enter into every subject of deliberation is too evident to make it necessary for me to demonstrate. Yet by most writers the number is increased; for things are reckoned by them as general considerations which are but special objects for notice; since what is lawful, just, pious, equitable, and merciful, (mansuetum, for so they interpret το ημερον,) and whatever else may be added of a similar character, may be included under what is honorable. 27. Whether, again, a thing be easy, important, pleasant, or free from danger, belongs to the consideration of expediency. These particular points for consideration arise from what is said in reply to us by our opponents: It is indeed expedient, but it is difficult, of little importance, unpleasant, and dangerous.
28. Yet some think that deliberation at times occurs concerning agreeableness merely; as when a. consultation is held about the erection of a theatre, or the institution of games; but I do not suppose that any man is so totally given up to pleasure as to look in a subject for deliberation to nothing but gratification. 29. For there must always be something that should be thought of higher consideration; as in regard to games, the honor of the gods; in regard to the erection of a theatre, useful relaxation from labor, and the unbecoming and inconvenient contention for places among the crowd, if there should be no theatre; and religion, at the same time, will have its place in the consideration, as we may call the theatre a temple, as it were, for the festival solemnized there to the gods.
30. Often, too, we say that advantage is to be disregarded, in order that we may do what is honorable; (as when we counsel the people of Opitergium not to surrender themselves to the enemy, though they will perish unless they do so;) and sometimes we may have occasion to set what is honorable below what is advantageous; (as when we advise, as in the second Punic war, that the slaves should be armed; [after the battle of Cannae: Florus, ii. 6; Livy, xxii. 57]) 31. though even in the latter case we must not altogether admit that the proceeding is dishonorable; (for we may say that all men are free by nature, and are formed of the same matter, and that some even of the slaves may be descended from noble ancestors;) and, in the former case, when the danger is evident, other considerations may be alleged, as we may assert that, if they surrender, they may perish even more cruelly, should the enemy, for instance, not keep their word, or should Caesar, as is more probable, obtain the superiority. 32. But considerations which are so much opposed to one another, are frequently softened by some alteration in the words; for expediency itself is altogether set at nought by that sect [the Sloics] who say not only that what is honorable is always preferable to what is expedient, but that nothing can even be expedient which is not honorable; while, on the other hand, what we call honorable, another sect [the Epicureans] calls vain, ostentatious, foolish, and more commendable in words than in reality.
33. Nor is what is advantageous compared only with what is disadvantageous, but things that are advantageous or disadvantageous are compared with one another; as when we try to determine, of two advantageous measures, which is the more advantageous, or of two that are disadvantageous, which is the less so. The difficulty may be still increased; for sometimes three subjects for deliberation may present themselves; as when Pompey deliberated [after the battle of Pharsalia; see Plutarch. Vit. Pomp.; Lucan, viii. 256 seqq.] whether he should betake himself to Parthia, or Africa, or Egypt. Thus it is not only inquired which of two courses is preferable, but which is the most eligible of three.
34. In questions of this kind, there will never occur any doubt as to a matter which is every way in our favor; for when there is no room for speaking against a measure what motive can there be for hesitating about it? Thus every subject for deliberation is generally nothing else but a subject for comparison; and we must consider, both what we would attain and by what means, so that we may form an estimate whether there is greater advantage in that which we pursue, or greater disadvantage in the means by which we pursue it. 35. A question of advantage may also have reference to time: it is expedient, but not now; or to place: not here; or to persons: not for us, or against those; or to a particular mode of proceeding: not thus; or to measure: not to so great a degree.
But we have still more frequently to take persons into consideration, with a view to what may be becoming; a point
which is to be regarded in respect not only to ourselves but to
those also who consult us. 36. Though examples, therefore,
are of the utmost effect in deliberative oratory, because men
are most easily led to consent to any measure by instances of
similar proceedings, yet it makes a great difference whose
authority is adduced, and to whom it is recommended; for the
feelings of those who listen to deliberative speeches are
various. 37. Our audience may be also of two kinds; for
those who consult us, are either many, or single individuals;
and, as to each, distinctions are to be made; since, with regard
to a number of persons, it makes a great difference whether they
are a senate, or a people, whether Romans, or Fidenates, whether
Greeks, or Barbarians; and, in respect to individuals, whether
we recommend that public offices should be sought by Cato or
by Caius Marius, and whether Scipio the elder, or Fabius consult with
us on the mode of conducting a war [in Livy, xxxviii. 40, Scipio and Fabius deliberate on the mode of
conducting the war against Carthage; Scipio recommends that it be
38. We must in like manner look to sex, dignity, and age. But it is the character of our hearers that should lead us to make the chief difference in our addresses to them. To recommend honorable measures to those who are honorable is extremely easy; but if we ever have occasion to enforce a right course of conduct on the unprincipled, we must be careful not to reproach them with the opposite nature of their life. 39. The minds of such an audience are to be influenced, not by dissertations on the nature of virtue, for which they have no regard, but by allusions to honor, and to the opinion of others, and if such arguments to their vanity do not move them, by showing the advantage likely to follow from what you advise, or rather perhaps, and with more effect, by showing them how much is to be dreaded if they act otherwise. 40. For besides the fact that minds of the lightest principles are most easily alarmed, I know not whether the fear of evil has not naturally more influence with the majority of mankind than the hope of good; to whom also the knowledge of what is vicious comes with greater facility than the knowledge of that which is virtuous. 41. Sometimes also actions which are scarcely honorable are recommended to the good; and to those of a rather opposite character are proposed measures in which nothing but the advantage of those who seek the advice is regarded.
I am well aware what sort of reflection may at once occur to the reader of this passage. "Is this, then," he may ask, "the practice that you recommend? [a passage very similar to that in Cicero pro Caelio, 4, 17] and do you think it right?" 42. Cicero might absolve me, who writes in the following manner to Brutus, (after mentioning many courses of conduct which might be fairly recommended to Caesar [Augustus],) should I act as an honest man, if I should recommend these measures? Certainly not; for the proper object of an adviser is the advantage of him whom he advises. But the measures are right. Who says otherwise? But in giving advice there is not always room for what is right. As this question, however, is of a deeper nature, and does not concern deliberative speeches only, the subject is reserved by me for my twelfth book, which will be my last. 43. I should not wish anything to be done dishonorably; and, in the meantime, let these questions be considered to belong at least to the exercises of the schools; for the nature of what is bad should be known, that we may the better support what is good.
44. If any one, however, recommend to a good man anything not quite honorable, let him remember not to recommend it as dishonorable, in the manner in which some declaimers urge Sextus Pompey to engage in piracy, for the very reason that it is nefarious and cruel; but some palliation must be thrown over what is disgraceful, even in. addressing the immoral. 45. It is in this way that Catiline speaks in Sallust [Catil. c. 20, ed. Cort.], so that he seems to rush daringly into a heinous enterprise, not through want of regard for honesty, but through indignation. It is thus also that Atreus speaks in Varius [in his Thyestes. This was the Varius who was the friend of Virgil and Horace]:
"I now endure gross wickedness, and now
How much more then is this pretension to honor to be maintained before those who have a real regard to their character! 46. Accordingly, if we advise Cicero to implore the mercy of Antony, or even to burn his Philippics, (supposing such to be the condition on which Antony offers him life, [see Sen. Suasor. 6 and 7]) we shall not insist upon his love of life, (for if this has any influence on his mind, it will maintain that influence even though we remain silent,) but we shall exhort him to preserve himself for the service of his country. 47. He will have occasion for such a pretext, that he may not be ashamed of his supplications to Antony. Or if we advise Caius Caesar to assume kingly power, we shall assert that the state cannot subsist but under the rule of one master; for he who deliberates about a criminal proceeding, seeks only how he may appear to do as little wrong as possible.
48. It is of much importance, also, what the character of the adviser is; because, if his previous life has been illustrious, or if the nobility of his birth, or his age or fortune, excites expectation, care must be taken that what he says may not be at variance with the dignity of him who says it; but a character of a contrary nature requires a humbler tone; for what is liberty in some, is, in others, called presumption; to some their authority is sufficient support, while the force of reason itself scarcely upholds others.
49. In consequence prosopopeiae [by prosopopeiae he understands declamations in which the speaker assumes the character of another person, and represents him as deliberating] appear to me the most difficult of all speeches of this kind; for in them the task of sustaining a character is added to the other arduous points of suasory eloquence. Caesar, Cicero, and Cato, speaking on the same subject, must each express himself differently. But exercise in this department is extremely beneficial, both because it requires double effort [double in that the character must be sustained, and persuasive arguments found], and because it greatly improves the powers of those who would be poets or historians.
50. To orators it is even indispensable; for there are many speeches composed by Greek and Latin orators for others to use, to whose condition and character what was expressed in them was to be adapted. Did Cicero think uniformly in the same manner, or assume the same character, when he wrote for Cneius Pompey, for Titus Ampius, and for others? Did he not rather, looking to the fortune, dignity, and actions of each of them, express the very character of all to whom he gave words, so that, though they spoke in a better style than their own, they yet appeared to speak in their own persons? 51. A speech is not less faulty which is unsuited to the person, than that which is unsuited to the subject, to which it ought to be adapted. Lysias, accordingly, is thought to deserve great praise for preserving so exact an air of truth in the speeches which he wrote for the illiterate [such is the commendation bestowed upon him by Dionysius Halicarnassensls, p. 82].
It ought, indeed, to be a chief object with declaimers to consider what is suitable to different characters; for they speak on but few subjects of controversy as advocates, but generally harangue in the character of sons, fathers, rich men, old men, morose or good-natured persons, misers or superstitious people, cowards or jesters; so that actors in comedy have scarcely more parts to master on the stage than they have in the schools. 52. All these representations of characters may be regarded as prosopopeiae, which I include under deliberative orations, because they differ from them in nothing but the personation of a character, though this is sometimes introduced into those deliberative subjects, which, taken from history, are conducted under the real names of the speakers.
53. Nor am I ignorant that poetical and historical prosopopeiae are sometimes given in the schools by way of exercise; as the pleading of Priam before Achilles, or the address of Sylla to the people on laying down the dictatorship. But these will fall under some of the three heads into which I have divided causes; for we have to entreat, to make declarations, to give reasons, and to do other things of which I have spoken above, in various forms and as the subject may require, both in the judicial, and in the deliberative, and in the demonstrative, kind of oratory. 54. But in all these we very often utter fictitious speeches attributed to characters which we ourselves introduce; as in Cicero's speech for Caelius, Appius Caecus, and Clodius, the brother of Clodia, are both represented as addressing Clodia, the former being made to reproach her with her intrigues, and the other to admonish her about them.
55. Matters for debate, too, are often introduced in the schools, which approach nearer to the judicial than the deliberative kind of oratory, and which are indeed compounded of the two; as when a discussion is held before Caesar about the punishment of Theodotus [a rhetorician of Chios or Samos, who was the first to suggest to Ptolemy that Pompey, when he landed in Egypt, should be put to death. See Plutarch, Life of Pompey, c. 77, 80; Appian, B.C. ii. 84, 90; Seneca de Ira, ii. 2; Seneca Controvers. ii. 13]; for it consists of an accusation and a defense, which are the proper ports of judicial pleadings. 56. But the question of expediency also enters into it; it is inquired whether it was to the advantage of Caesar that Pompey was killed; whether war is to be apprehended from the king if Theodotus be put to death; whether such war would not be embarrassing and dangerous at the present time, and likely to be of long duration. 57. Considerations also arise about the honorableness of the proceeding: as whether it would be becoming in Caesar to avenge Pompey; whether it was to be apprehended that he would injure the cause of his party, if he should confess that Pompey was undeserving of death. 58. Deliberations on such questions may occur even in real causes.
There has, however, prevailed among most declaimers, in regard to deliberative speeches, an error that has not been without its consequences; for they have imagined that the deliberative style of speaking is different from the judicial, and indeed altogether opposed to it; and they have accordingly affected abrupt commencements, a kind of oratory always vehement, and a liberal embellishment, as they call it, in their expressions, and have studied to make shorter notes, forsooth, for deliberative than for judicial subjects.
59. For my part, though I do not see that there is any need for a regular exordium in deliberative speeches for the reasons which I have previously stated, I still do not understand why we should commence with furious exclamation; for he who is asked his opinion on a question proposed, does not, if he is a man of sense, begin immediately to cry out, but endeavors to gain the confidence of those who consult him by a modest and rational entrance on the subject. 60. Or why should the style of the speaker be like a torrent, and uniformly vehement, when counsel requires in the most eminent degree moderation and calm reasoning? I admit that, in judicial pleadings, the tone of the speaker is often lowered in the exordium, the statement of facts, and the argumentative portions, and that, if you take away these three parts, there will remain something like the substance of which deliberative orations consist, but that substance ought to be more calm, not more violent and furious.
61. As to grandeur of diction, it is not to be affected by those who declaim deliberative speeches more than by others; but it comes more naturally to them; for to those who imagine their own subjects, great personages are generally most attractive, such as those of kings, princes, people, senates, with important topics for discussion; and thus, when the style is suited to the matter, it assumes a degree of magnificence from it. 62. With regard to real causes the case is different, and therefore Theophrastus [III. 1, 15] has pronounced that the language in all deliberative oratory should be free from every kind of affectation; following in this respect the authority of his master [Aristotle], though he does not hesitate frequently to differ from him; 63. for Aristotle was of opinion [see Rhet. iii. 12, 5] that the panegyrical department of oratory was the best adapted for improvement in composition, and next to it the judicial; since the first is devoted wholly to display, and the latter requires art so as even to deceive the hearers if expediency demands; but counsel needs nothing but truth and prudence.
64. With these critics in respect to panegyric, I agree; for all other writers have expressed themselves of a similar opinion; but in judicial and deliberative subjects I think that the manner of speaking is to be adapted to the matter, according to the nature of the question that may be under consideration. 65. I see that the Philippics of Demosthenes are distinguished by the same merits as the speeches which he pronounced in judicial causes; and the opinions of Cicero delivered in the senate, and his speeches to the people, exhibit a splendor of eloquence not less luminous than that which appears in his accusations and defenses. Yet he speaks of the deliberative kind of oratory in this way [Partitiones Oratoriae, c. 27 fin.]: The language ought to be uniformly simple and grave, and more distinguished for studied thoughts than for studied phraseology. 66. That there is no kind of oratory to which the application of examples is more suitable, all writers are justly agreed, as the future seems for the most part to correspond to the past, and experience is regarded as some attestation to reason.
67. As to shortness or length in such speeches, it depends, not on the nature of the subject, but on the compass of it; for as in deliberations the question is generally more simple, so in judicial affairs it is often of less extent.
All these remarks he will find to be true, who shall prefer, instead of growing grey over the treatises of the rhetoricians, to read, not speeches only, but also histories; for in history the orations pronounced to the people, and the opinions delivered in councils of state, generally afford examples of persuasion and dissuasion. 68. He will find, too, that in deliberative speeches the commencements are not abrupt; that the diction in judicial pleadings is often more animated; that style is suited to the matter in one class as well as in the other; and that the speeches in courts of justice are sometimes shorter than those in public councils. 69. Nor will he find in them the faults into which some of our declaimers fall, who indulge in coarse invectives against those that dissent in opinion from them, and speak, on the whole, as if they were the natural adversaries of those who ask their advice; and thus exhibit themselves in the character rather of railers than of counsellors.
70. Let young men know that these remarks are written for their admonition, that they may not allow themselves to be taught otherwise than they will have to speak, and spend their time upon learning that which they will have to unlearn. But, whenever they shall be called to give counsel to their friends, to pronounce an opinion in the senate, or to offer advice if the emperor consult them, they will be taught by practice what they cannot perhaps receive on the credit of precepts.
1. I am now to speak of the judicial kind of oratory, which is extremely varied, but lies in the two duties of attack and defense. The divisions of it, as most authors are of opinion, are five, the exordium, the statement of facts, the proof of what we advance, the refutation of our adversary, and the peroration. 2. To these some have added partition, proposition, and digression; the first two of which evidently fall under proof; for you must necessarily propose what you are going to prove, as well as conclude after you have proved; and, if proposition is a division of a cause, why is not also conclusion? As for partition, it is only one of the duties of arrangement, which is a portion of oratory in general, equally pervading all its parts and the whole body of each, like invention and delivery.
3. We are, therefore, not to consider partition as one division of a speech taken as a whole, but as belonging to every single question in it; for what question is there in which the orator may not state what he is going to say in the first place, what in the second, and what in the third; and this is the business of partition. How ridiculous is it then, that each question should be a species of proof, and that partition, which is but a species of question, should be called a part of the speech as a whole? 4. But as for digression, or, what has become a more common term, excessus, "excursion," if it be without the cause, it cannot be a part of the cause; and, if it be within the cause, it is an aid or ornament to the parts from which it proceeds; for if whatever is in the cause is to be called a part of the cause, why is not every argument, comparison, common place, address to the feelings, and example, called a part of the cause?
5. I do not, however, agree with those who, like Aristotle [Rhet. ii. 26, 3; iii 13, 4; 17, 14], omit refutation, as comprehended under proof; for proof establishes, refutation overthrows. Aristotle [Rhet. iii. 13] also makes an innovation to a certain degree, by placing next to the exordium, not the statement of facts, but the proposition; but this he does because he thinks the proposition the genus, and the statement of facts the species; and supposes that there is not always a necessity for the first, but for the second always and in all cases.
6. But with regard to the divisions which I have made, it is not to be understood that that which is to be delivered first is necessarily to be contemplated first [Cic. de Inv. i. 14; de Orat. ii. 77]; for we ought to consider, before everything else, of what nature the cause is; what is the question in it; what may profit or injure it; next, what is to be maintained or refuted; and then, how the statement of facts should be made. 7. For the statement [expositio. Take care not to confound it with propositio. It is plainly the game as narratio] is preparatory to proof, and cannot be made to advantage, unless it be first settled what it ought to promise as to proof. Last of all, it is to be considered how the judge is to be conciliated; for, until all the bearings of the cause be ascertained, we cannot know what sort of feeling it is proper to excite in the judge, whether inclined to severity or gentleness, to violence or laxity, to inflexibility or mercy.
8. Yet, I do not, on these accounts, agree with those who think that the exordium is to be written last [Antonius, in Cicero de Oratore, mentions this as his practice]; for though it is proper that our materials should be collected, and that we should settle what effect is to be produced by each particular, before we begin to speak or write, yet we ought certainly to begin with that which is naturally first. 9. No man begins to paint a portrait, or mold a statue, with the feet; nor does any art find its completion where the commencement ought to be. Else what will be the case if we have no time to write our speech? Will not so preposterous a practice disappoint us? The orator's materials are, therefore, to be first contemplated in the order in which we direct, and then to be written in the order in which he is to deliver them.
1. Every cause, in which there is one method for a plaintiff, and another for a defendant, consists either in a controversy about one charge or about several. The one is called simple, the other complex. A question about a theft by itself, or an act of adultery by itself, is single and independent. When there are several questions, they may be either of the same kind, as in a charge of extortion; or of different kinds, as in a charge of sacrilege and homicide at the same time. This union of charges does not now [namely, since the quaestiones perpetuae were instituted] occur in public trials, because the praetor takes cognizance of each according to a fixed law, but is frequent in the causes tried before the emperors and the senate, and used to be common in those that came before the people; and disputes between private individuals often require one judge to determine as to many different points of law. 2. Nor will there be more than two kinds of causes, even in cases where one party prosecutes the same suit, and on the same ground, against several; or two against one; or several against several; as we sometimes see occur in actions about inheritances; because, though there be several parties, the cause is still but one, unless indeed the condition [as in the trial respecting two legitimate sons and one illegitimate, c. 8, sect. 95] of the parties give rise to distinct questions.
3. There is, however, said to be a third kind, different from these, called comparative; and some consideration with regard to comparison frequently happens in some part of a cause; as when, in a case before the centumviri, there arises, after other questions, one of this kind, which of two persons is better entitled to an inheritance? But it seldom happens that trials are appointed in the forum [hence it is evident that the centumviri did not sit in the forum] merely for that object, and only in cases of divination, which take place for the purpose of appointing an accuser, or sometimes between informers to decide which of two has a better claim to a reward.
4. To this number some have indeed added a fourth, called αντικατηγορια, "recrimination," or mutual accusation; but others think that this is comprehended under the comparative kind; and the case of reciprocal suits [when the accuser claims one thing from the defendant, and the defendant another thing from the accuser] will be similar to it; a case which happens very frequently; and if this ought also to be called αντικατηγορια, (for it has no proper appellation with us,) there will be two kinds of it, one in which the parties bring the same charge against each other; the other in which they bring different charges. The case is similar with regard to demands.
5. When the nature of the cause has been determined, we shall then have to consider, whether the fact, which is made a charge by the accuser against the defendant, is to be denied [status infitialis, or facti quaestio], or to be justified [status qualitatis], or to be called by another name [status definitivus], or to be excluded [status translativus] from that particular sort of process. By this means the states of causes are determined.
1. When these matters are settled, Hermagoras thinks that we must next consider what is the question, the mode of defense, the point for judgment [judicatio. το κρινομενον, the point on which the judges have to pronounce a decision], the συνεχον, or point "containing" the accusation, or, as some call it it, the firmamentum, or "foundation" of the cause.
Question, in its more general sense, is understood to mean everything on which two or more plausible opinions may be advanced. 2. But in regard to judicial matters, it is to be taken in two senses; one, when we say that a cause involves several questions, among which we include even those of least importance; the other, when we mean the great question on which a cause turns. It is of the second that I now speak, and it is from this that the state has its origin: Has a thing been done? [status conjecturalis] What has been done? [status definitivus] Has it been justifiably done? [status qualitatis] These interrogatories Hermagoras, Apollodorus, and many other writers, call properly questions; Theodoras, as I observed, terms them general heads, and the minor questions, or those dependent on them, special heads; as it admitted that one question may arise from another question, and that a species may be divided into species. 4. This principal question of all, then, they call the ζητημα.
The mode of defense is that process by which what is admitted to have been done is justified. To exemplify it, why should I not use that instance which almost all writers have adopted? Orestes killed his mother: this is admitted; he says that he killed her justly: the state will then be that of quality; the question, Whether he killed her justly: the ground of defense will be that Clytemnestra killed her husband, the father of Orestes: this is called the αιτιον.
The point for judgment, the κρινομενον, will be, in this case, whether even a mother guilty of such a crime ought to be killed by her son.
5. Some have made a distinction between αιτιον and αιτια, making the first signify the cause for which a trial becomes necessary, as the killing of Clytemnestra; the second, the ground on which the deed is justified, as the killing of Agamemnon. But such has been the disagreement as to the sense of these words, that some call αιτια the cause of the trial, and αιτιον the cause of the deed, while others use them in senses exactly contrary. Among the Latins some have adopted the terms initum, "commencement," and ratio, "reason;" some include both under the same term. 6. Cause also appears to arise from cause, αιτιον εξ αιτου, as, Clytemnestra killed Agamemnon because he had sacrificed their common daughter, and brought home a captive as his concubine.
The same authors are of opinion that in one question there may be several grounds of defense; as, for example, if Orestes adds another cause for having killed his mother, namely, that he was forced to obey an oracle; and that, whatever number of causes for the deed may be alleged, there are the same number of points for judgment; as it will also be a point for judgment whether he ought to have obeyed the oracle. 7. But even one alleged cause for a deed may, as I conceive, give rise to several questions and points for judgment; as in the case of the man, who, after he had killed his wife on catching her in adultery, subsequently killed the adulterer, who at first escaped, in the forum; for the alleged cause for the deed is but one, He was an adulterer; but several questions and points for judgment may arise, as whether it was lawful to kill him at that time, or in that place. 8. But as, when there are several questions, and all have their states, there is yet but one state in the cause to which everything is referred, so there is but one proper point for judgment, on which the decision is pronounced.
9. As to the συνεχον, (which, as I said, some call continens, others firmamentum, and Cicero [Inv. i. 14] the strongest argument of the defender, and the fittest point for adjudication,) some regard it as that after which nothing remains to be ascertained; some, as that which is the strongest point for adjudication. 10. The reason of the deed is not a point for consideration in all causes; for what reason for the deed need be sought, when the deed is altogether denied? But when the reason of the deed is an object of consideration, they deny that the ultimate point for decision rests on the same ground as the first question; an observation which Cicero makes both in his Rhetorica [Inv. i 14] and his Partitiones [C. 30]. 11. For, when it is said, It was done; it was not done; was it done? the question rests on conjecture, and the judication rests on the same ground as the question, because the first question and the ultimate decision are about the same point.
But when it is said, Orestes killed his mother; he killed her justly; no, but unjustly; did he kill her justly? the question rests on the consideration of quality; but this is not yet the point for decision. When then will it be? After the statement, She had killed my father; but you ought not, therefore, to have killed your mother; ought Orestes to have killed her? here is the point for decision. 12. The fundamental point of the defense I will give in the words of Cicero [Inv. i. 14] himself: "if Orestes were inclined to say that the disposition of his mother towards his father, towards himself and his sisters, towards his kingdom, and towards the reputation of his race and family, had been of such a nature that her children felt of all people most obliged to inflict punishment on her."
13. Others also use such examples as these: the law says, let him who has exhausted his patrimony not be allowed to address the people; but the defendant exhausted his upon public works; and the question then is, whether whoever has exhausted his patrimony is not to be allowed; and the point for judgment, whether he who has exhausted his patrimony in such a way is not to be allowed. 14. Or the case of the Auruncan soldier [the story is noticed by Cicero, Pro Mil. c. 4, and Val. Max. vi. 1, 12, and is related at length by Plutarch in his Life of Marius], who killed the tribune Caius Lusius, when he made dishonorable advances to him, in which the question is, whether he killed him justly; the ground of defense, that he made dishonorable advances; the point for judgment, whether it were lawful for a person to be killed uncondemned; whether it were lawful for a tribune to be killed by a soldier.
15. Some also regard the question, as in one state, and the point for decision in another; the question whether Milo did right in killing Clodius, is in the state of quality [question of right]; the point for decision, whether Clodius lay in wait for Milo, is in the state of conjecture [question of fact]. 16. They say also that a cause often strays into some matter which does not properly belong to the question, and on which the decision is pronounced. I am not at all of their opinion; for the question, for instance, whether every man who has exhausted his patrimony is forbidden to address the people, must have its decision; and, therefore, the question and the point for decision will not be different; but there will be more than one question, and more than one point for decision. 17. In the case of Milo, too, is not the question of fact considered with reference to the question of quality? for if Clodius lay in wait, it follows that he was justly killed. But when the cause goes into some other matter, and recedes from the question which was first proposed, the question will be in the state in which the point for decision is.
18. Respecting these matters even Cicero is in some degree at variance with himself; for in his Rhetorica, as I said above, his has followed Hermagoras; in his Topica [C. 25], he expresses himself of opinion that the κρινομενον, the point of judgment, is the consideration arising from the state; and in addressing Trebatius, a lawyer of his time, he calls it the point about which the discussion is, and terms the particulars in which that point is contained continentia, the "containing particulars;" the firmamenta, "supports" as it were of the defense, without which there would be no defense at all. 19. But in his Partitiones Oratoriae [C. 29] he calls the firmamentum that which is opposed to the defense; because the continens, the "containing point," as it is the first thing, is advanced by the accuser; while the ratio, "mode of defense," proceeds from the defendant; and from the opposition of the ratio and firmamentum arises the question for decision.
Those authors, therefore, have settled the matter more judiciously and concisely, who have made the state, and the containing point, and the question for decision, to be all the same, and have pronounced the containing point to be that without which there would be no discussion. 20. In this "containing point" they seem to me to have included both allegations, that Orestes killed his mother, and that Clytemnestra killed Agamemnon. The same writers think that the state and the point for judgment always concur; and indeed any other opinion would have been at variance with their views.
21. But this studied subtilty about names of things is but ostentatious labor, and has only been noticed by me that I might not appear to have given too little consideration to the work which I have taken in hand; but a master who teaches without affectation need not split his mode of teaching into such minute distinctions. 22. Excessive subdivision is a fault into which many rhetoricians have fallen, and especially Hermagoras, a man otherwise of great sagacity, and deserving of admiration on many accounts, and censurable only for too anxious diligence, so that even what we blame in him is not unworthy of some degree of commendation. 23. But the way which I follow is far shorter, and for that reason plainer, and will neither fatigue the learner with long windings, nor enervate the body of his language by portioning it out into minute particulars.
For he who sees what point it is that comes into controversy; what the opposite side wishes to do with regard to it, and by what means; what his own side has to do, (a particular especially to be regarded,) cannot be without a full understanding of all the matters on which I have just spoken. 24. Nor can there, we may say, be any person, not utterly devoid of sense, and a stranger to all practice in pleading, that does not know what it is that gives rise to a discussion, (which is called by the rhetoricians the cause and the containing point,) what is the question between two parties, and on what point judgment must be given; which three things are indeed all the same; for the subject of the question is that which comes into controversy, and judgment is given respecting that which is the subject of the question.
25. But we do not perpetually keep our attention fixed on these matters, but, moved with the desire of obtaining praise by whatever means, or carried away with the pleasure of speaking, we allow ourselves to wander from our subject; since matter without the cause is always more abundant than within it, for in the controversy itself there is indeed comparatively little, and everything else is beyond its limits; and, in the one case, we speak only of matters in which we have been instructed, in the other, on whatever we please. 26. Nor is it so much to be charged upon ourselves that we should discover the question, the containing point, and the point for judgment, (for to discover them is easy,) as that we should always look steadily to our object, or at least, if we digress from it, should recover sight of it, lest, while we are striving for applause, our arms should drop from our grasp.
27. The school of Theodorus, as I said, distinguishes every thing into heads; under which term several particulars are comprehended. Under the first only the main question, the same as the state; under the next, other questions, which refer to the main question; under the third, the proposition with its proofs. The word is used in the same sense in which we say caput rei est, "it is the head of the business;" in Menander, κεφαλαιον εστι. But, in general, whatever is to be proved will be a head, whether of greater or lesser importance.
28. Since I have now set forth, even more circumstantially than was requisite, what is taught on these points by the writers of books on rhetoric; and since I have already specified the several parts of judicial causes, my next book shall treat of proems or exordia.
1. After finishing, my dear Marcellus Victor, the third book of the work dedicated to you, and completing about the fourth part of my task, a motive for fresh diligence, and deeper solicitude as to the judgment that I may deserve from the public, have occurred to me. Hitherto we were but comparing studies, as it were, between ourselves; and if my method of instruction was but little approved by others, I thought myself likely to be quite contented with our domestic advantage, deeming it sufficient to regulate the education of your son and my own. 2. But since Domitian Augustus has vouchsafed me the charge of his sister's grandsons [they were the sons of Flavius Clemens and Domitilla, the grand-daughter of Vespasian. See Suet. Dom. c. 15; Dion. Cass. p. 1112, ed. Reim], I should not sufficiently feel the honor of his divine judgment [Domitian assumed to himself the titles of Dominus and Deus, as is related by Suetonius, Dom. c. 13], if I were not to estimate the greatness of my undertaking as proportioned to this distinction. 3. For what pains can I spare in the cultivation of the morals of youth, in order that the most upright of censors [Domitian was the first of the Roman emperors that assumed the title of supreme censor; see Dion. Cass. lib. Ixvii. p. 1104, ed. Reim] may have reason to approve them? Or in promoting their studies, that I may not be found to have disappointed, in this respect, the expectations of a prince most eminent, not only in other accomplishments, but also in eloquence?
4. And if no one is surprised that the greatest poets have often invoked the Muses, not only at the beginning of their works, but, on advancing in their course, and arriving at some point of great importance, have renewed their addresses, and used as it were fresh solicitations, 5. I myself shall surely be pardoned also, if I now do that which I omitted to do when I entered on my subject, and call all the deities to my aid, and especially him than whom there is no deity more auspicious or more peculiarly favorable to learning; in order that he may inspire me with ability proportioned to the expectation which he has raised of me, may propitiously and kindly support me, and render me in reality such as he has supposed me to be.
6. For such devotional feeling, this, though my greatest, is not my only reason; for besides, as my work advances, the parts on which I am entering are more important and more difficult than those which have preceded them. It is now to be shown, in the next place, what is the process of judicial causes, which are extremely numerous and diversified; what is the purpose of the exordium; what is the proper form of a statement of facts; what constitutes the force of proofs, either when we confirm our own assertions, or overthrow those of our adversary; and what is the power of a peroration, either when the memory of the judge is to be refreshed by a short recapitulation, or when, what is far the most effective, his feelings are to be excited.
7. On these particulars, some authors, as if they dreaded the weight of the whole in a body, have preferred to write separately, and even thus have published several books on each of them; while I, having ventured to embrace them all, see before me a labor almost boundless, and am oppressed with the very thought of the task which I have undertaken. But, as I have begun, I must persevere; and, if I fail in strength, must nevertheless proceed with courage.
1. That which is called the beginning, or exordium in Latin, the Greeks seem with greater reason to have termed the προοιμιον: for by our writers is signified only a commencement, but the Greek rhetoricians plainly show that this is the part preliminary to the entrance on the subject on which the orator is to speak. 3. For whether it be because οιμη signifies a tune, and players on the lyre [Aristot. Rhet. iii. 14, 1] have called the short prelude that they execute, for the purpose of conciliating favor, before they enter upon the regular contest for the prize, a proemium, orators, in consequence, have distinguished the address which they make to gain the good will of the judges, before they commence their pleading, by the same appellation; 3. or whether, because the Greeks call a way οιμος, it became a practice to call that a proemium which precedes the entrance on a subject; it is certainly the proem, or exordium, that produces a good effect on the judge before he understands what the cause is; and we act erroneously in the schools, in using exordia of such a nature as if the judge was thoroughly acquainted with the cause. 4. The liberty taken in this respect arises from the circumstance that the usual idea of the cause [that is, the thema, which is prefixed to the declamation, as in those of Seneca and Quintilian] is given previous to the commencement of the declamation. Such kind of exordia may be adopted indeed in the forum in second processes, but in a first process [secundae actiones are such as the libri secundae actionis against Verres, when, as the trial could not be brought to an end at once, it was adjourned for three days] seldom or ever, unless we chance to plead before a judge to whom the matter has become known from some other quarter.
5. In giving an exordium at all there is no other object but to prepare the hearer to listen to us more readily in the subsequent parts of our pleading. This object, as is agreed among most authors, is principally effected by three means, by securing his good will and attention, and by rendering him desirous of further information; not that these ends are not to be kept in view throughout the whole pleading, but because they are pre-eminently necessary at the commencement, when we gain admission as it were into the mind of the judge in order to penetrate still farther into it.
6. As to good will, we either gain it from persons connected with the cause, or have it from the cause itself. But in respect to persons, regard is not to be had to three only, (as most rhetoricians have supposed,) the prosecutor, the defendant, and the judge; for the exordium sometimes takes its complexion from the character of the pleader; and though he speaks sparingly and modestly concerning himself, yet, if he be deemed a good man, much influence, in reference to the whole cause, may depend on that consideration; for he will then be thought to bring to the support of his party not merely the zeal of an advocate, but almost the testimony of a witness. 7. Let him be regarded as coming to plead, therefore, from being induced by obligations of kindred or friendship, or above all, if it be possible, by respect for his country, or for some strong considerations of precedent. This, without doubt, is still more to be observed by the parties themselves, so that they may seem to go to law from some important and honorable motive, or even from necessity.
8. But as the authority of the speaker becomes thus of the highest efficacy, if, in his undertaking the business, all suspicion of meanness, or hatred, or ambition, be far removed from him, so it is a sort of tacit commendation to him, if he represents himself as weak, and inferior in ability to those acting against him, a practice which is adopted in most of the exordia of Messala. 9. For there is a natural feeling in behalf of those oppressed; and a conscientious judge most willingly listens to an advocate whom he does not suspect of any design to draw him from justice. Hence arose that dissembling of the speakers of antiquity to conceal their eloquence, so extremely different from the ostentation of our times.
10. We must also take care not to appear insolent, malignant, overbearing, or reproachful towards any man or body of men, especially such as cannot be wounded without exciting an unfavorable feeling in the judge. 11. That nothing should be said against the judge himself, not only openly, but nothing even that can be understood as adverse to him, it would be foolish in me to advise, if such things did not sometimes take place.
The character of the advocate for the opposite party may
sometimes afford us matter for an exordium; if we speak of
him sometimes with honor, making it appear that we fear
his eloquence and influence, so as to render them objects of
suspicion to the judge; or sometimes, though very rarely, with
contempt, as Asinius Pollio, in pleading for the heirs of
Urbinia [the Urbinian case, as far as it can be understood,
13. As to the character of the prosecutor, it may be treated in various ways; sometimes his worth may be asserted, sometimes his weakness commended to notice. Sometimes a statement of his merits may be proper, when a pleader may speak with less reserve in praise of another's worth than he would in that of his own. Sex, age, condition, are of great influence, as in the case of women, old men, or wards, when they plead in the character of wives, parents, or children. 14. Commiseration alone, indeed, has effect even upon a right-minded judge. But such matters are to be lightly touched, and not exhausted, in an exordium.
The character of the adversary is commonly attacked with references to topics of a similar nature, but directed against him; for on the powerful envy must be shown to attend, on the mean and abject, contempt; on the base and criminal, hatred; three qualities that have great power in alienating the favor of the judges. 15. Nor is it enough merely to state such particulars, (for this is in the power even of the ignorant,) but most of them must be magnified or extenuated, as may be expedient; for to give effect to them is the business of the orator; the mere expression of them may be inherent in the cause itself.
16. The favor of the judge we shall conciliate, not merely by offering him praise, (which ought indeed to be given with moderation, though it is to be remembered at the same time, that the privilege of offering it is common to both parties,) but by turning his praises to the advantage of our cause, appealing, in behalf of the noble to his dignified station, in behalf of the humble to his justice, in behalf of the unfortunate to his pity, in behalf of the injured to his severity; and using similar appeals in other cases. 17. I should wish also, if possible, to know the character of the judge, for, according as it may be violent, gentle, obliging, grave, austere, or easy, it will be proper to make his feelings subservient to our cause where they fall in with it, and to soften them where they are repugnant to it.
18. But it sometimes happens, also, that he who sits as judge is either our enemy or the friend of our opponent, a circumstance which ought to claim the attention of both sides, but more particularly, perhaps, of that to which the judge seems to incline. For there is sometimes, in unprincipled judges, a foolish propensity to give sentence against their friends, or in favor of parties with whom they are at enmity, and to act unjustly that they may not seem to be unjust.
19. Some have been judges, too, in their own causes. I find, for instance, in the books of observations published by Septimius, that Cicero was engaged in a cause of that nature; and I myself pleaded the cause of Queen Berenice [she with whom Titus was in love, and to whom he even promised marriage, but was obliged to send her away from Rome against his will and her own; Suet. Tit. c. 7. She was the daughter of the elder Agrippa, king of Judaea, and widow of Herod, her own uncle, king of Chalois in Syria] before that queen herself. In this case the mode of procedure is similar to that in those which I have just mentioned; for he who pleads in opposition to the judge exaggerates the confidence of his client, and he who pleads in his favor expresses apprehension of feelings of delicacy on his part. 20. Opinions, moreover, such as the judge may appear to have brought with him in favor of either party are to be overthrown or established.
Fear is sometimes to be removed from the mind of the judge; as Cicero, in his speech for Milo, strove to convince the judges that they were not to think the arms of Pompey arrayed against them; and sometimes to be held out to them, as Cicero acted in his pleadings against Verres [the first actio against Verres, which is wholly in place of an exordium, as it is indeed called by Asconius Pediauus]. 21. But of the two modes of producing fear in the judges, the one is common and well received, when we express concern, for example, that the Roman people may not think unfavorably of them; or that their privilege of sitting as judges may not he transferred from them to another body; but the other is unusual and violent, when the speaker threatens the judges with a charge of bribery; a threat which it is certainly safer to address to a larger body of judges than to a small one, for the bad are alarmed and the good pleased, but to a single judge I should never recommend it to be used, unless every other resource has failed. 22. But should necessity drive us to it, it is no part of oratorical art, any more than to appeal from the judgment of the tribunal, (though an appeal is often advantageous,) or to impeach a judge before he gives sentence; for one who is not an orator may threaten and denounce.
23. If the nature of the cause itself afford us topics for conciliating the judge, it will be proper, above all, that such of them be selected for introduction into the exordium as may appear most favorable to our object. On this head Virginius [III. 1, 21] is in error, for he says Theodorus is of opinion that from every question in the cause some thought may be selected for the exordium. 24. Theodorus does not say this, but merely that the judge is to be prepared for the most important points; a precept in which there would be nothing objectionable, if it did not enjoin that as a general rule which every pleading does not admit, and which every cause does not require.
For when we rise to open the case on behalf of the prosecutor, while it is still unknown to the judge, how shall we bring forward thoughts from every question in it? Surely the subject must previously be stated. Let us admit that some questions may then be brought forward, (for so the form of our pleading sometimes requires,) but must we, therefore, bring forward all the most important ones, that is, the whole cause? If so, the statement of facts will be dispatched in the exordium.
25. Or if, as frequently happens, the cause is somewhat difficult, should we not try to gain the goodwill of the judge in other parts of the pleadings, and not present the bare roughness of every point to his mind before we have attempted to incline it in our favor? If such matters were always rightly managed at the opening of a speech, there would be no need of any formal exordium. 26. At times, accordingly, some particulars, which may be of great effect in conciliating the favor of the judge, may be previously ["in the mean time," i.e., before proceeding to the body of the speech] introduced, and not without advantage, in the commencement.
What points, again, are likely to gain us favor in causes, it is not necessary for me to enumerate; for they will be manifest to the pleader, when he understands the nature of a cause; and all particulars, in so great a variety of suits, cannot possibly be specified. 27. But as it is for the service of a cause to discover and amplify its favorable points, so it is expedient to refute, or at least to extenuate, whatever is prejudicial to it. Compassion may also spring from the nature of our cause, if we have suffered, or are likely to suffer, any severe misfortune.
28. Nor am I inclined, as some are, to think that an exordium differs from a peroration only in this respect, that in a peroration is narrated what has gone before, and in an exordium is set forth what is to come. The difference rather lies in this, that in the introduction the kind feelings of the judge should be touched, but cautiously and modestly; while in the peroration we may give full scope to the pathetic, we may attribute fictitious speeches to our characters, and evoke the dead and produce their children; attempts which are not made in exordia.
29. But as to those feelings of pity, which I mentioned above, it is necessary not only to excite them in our favor in the exordium, but to turn away the effect of them from our opponent; and as it is for our advantage that our lot should be thought likely to be deplorable if we should be defeated, so is it that the pride of our adversary should be apprehended as likely to be overbearing if he should conquer.
30. But exordia are often taken from matters which are not properly concerns of our clients or their causes, but which yet in some way relate to both of them. With the persons of our clients are connected not only their wives and children, to whom I have previously alluded, but their relatives and friends, and sometimes countries and cities, and whatever else may be injured by the failure of those whom we are defending. 31. To the cause, among external circumstances, may be referred the occasion, from which is derived the exordium in behalf of Caelius [Pro Cael. c. 1]; the place, from which is taken that in behalf of Deiotarus [C. 2]; the appearance of things, whence that in behalf of Milo [C. 1]; public opinion, whence that against Verres [Act. pr. c. 1]; and in short, that I may not specify everything, the report respecting the trial, the expectation of the people; for, though none of these things form part of the cause, they yet have a connection with the cause. 33. Theophrastus adds that an exordium may be derived from the form of the pleading, as that of Demosthenes for Ctesiphon appears to be, when he entreats to be allowed to speak as he himself may think most proper, rather than according to the mode which the prosecutor has laid down in his charge [Aeschines had solicited the judges not to allow Demosthenes to indulge in any irregularity, but to oblige him to reply to the charges in the same order in which he himself had stated them].
33. Confidence often suffers from being thought to partake of presumption. But artifices which procure us favor, and which, though common to almost all pleaders, are not to be neglected, even if for no other reason than that they may not be first employed against us, are to wish, to express detestation, to entreat, to show anxiety; because if a cause appears to be brought forward which is new, important, atrocious, and of consequence in regard to precedent, it generally renders the judge extremely attentive, and especially if he is moved by concern for himself or his country; and his feelings must then be excited by hope, fear, admonition, supplication, and even by false representations, if we think that they will be of service to us.
34. It also has effect in securing the attention of the audience, if they think that we shall not detain them long, or enter upon matters foreign to the subject. Such attention in itself makes the judge desirous of information, and especially if we can state, briefly and clearly, the substance of the matter of which he has to take cognizance; a method which Homer and Virgil have adopted at the commencement of their poems. 35. As to the length of it, it should be such as to resemble a proposition rather than an exposition, and show, not how every particular in the cause occurred, but on what particulars the pleader intends to speak.
Nor do I know that a better example of such a summary can be found than that of Cicero in his speech for Aulus Cluentius: 36. "I have remarked, judges, that the whole speech of the accuser is divided into two parts [Cluentius had been accused, first of having procured the condemnation of Oppianicus by bribing the judges, or rather jury, in the trial before Junius; secondly, of having given poison to Opplanlcus]; of which one appeared to me to rest, and principally to depend, on the odium, now long prevalent, arising from the judgment of Junius, the other to touch, for form's sake, timidly and diffidently, on the question of the charge of poisoning, though it is on this point that the present inquiry has according to law been instituted." All this, however, is more easy for the defender than the prosecutor, because by the one the judge is merely to be warned, by the other he must be informed.
37. Nor shall any authors, however eminent, induce me to entertain the opinion that I may sometimes dispense with rendering the judge attentive and willing to listen. (Not that I am ignorant of the reason which is alleged by them, namely, that it is for the advantage of a bad cause that its nature should not be understood; but the truth is, that the judge's ignorance of a cause does not arise from inattention on his part, but from error into which he is led.) 38. Suppose that our adversary has spoken, and has perhaps produced conviction in the judge; we require that his opinion should be changed, and it cannot be altered unless we render him attentive and willing to listen to what we are going to say.
How are we to act then? I consider that some of our adversary's arguments must be weakened, or depreciated, and noticed with a sort of contempt, in order to lessen the strong feeling of favor which the judge has for the opposite party; a method which Cicero adopted in pleading for Ligarius. 39. For what else was the object of that irony, but that Caesar might be induced to give less attention to the cause, as presenting no extraordinary features? What is the purpose of the speech for Caelius, but that the charge might seem less important than it was thought to be?
But of the rules which I have proposed, it is evident that some are applicable to one sort of causes, and some to another. 40. The kinds of causes, too, most rhetoricians pronounce to be five, the honorable, the mean, the doubtful or ambiguous, the paradoxical, and the obscure; that is, the ενδοξον, the αδοξον, the ααφιδοξον, the παραδοξον, and the δυσπαρακολουθητον. Some think that to these it is proper to add the base, which some comprehend under the mean, others under the paradoxical.
41. What they call paradoxical, is something that is brought to pass contrary to human expectation. In an ambiguous cause we should make it our chief object to render the judge well affected, in an obscure one desirous of information, in a mean one attentive. As for an honorable cause, it has sufficient attraction in itself to conciliate; in one that is paradoxical or base, there is need of palliation.
42. Hence some divide the exordium into two parts, the introduction and the insinuation; in order that in general, in the introduction, there may be a straightforward request for the judge's goodwill and attention; but, as this cannot be made in a dishonorable cause, some insinuation may then be directed cautiously into his mind, especially if the aspect of the cause is not even plausible, either because the ground of it is dishonorable in itself, or because it is disapproved by the public; or if, again, the cause suffers from the appearance of a patron or a father against a client or a son, which renders it unpopular, or from that of an old or blind man, or an infant, which excites feelings of compassion.
43. What arts we must adopt to counteract these difficulties, rhetoricians teach us at great length, imagining cases for themselves, and treating them according to the forms of judicial processes; but such peculiarities, as they spring from varieties of causes of which we cannot give rules as to every species, unless they be comprehended under general heads, might be enumerated to infinity. 44. For every difficulty a remedy must therefore be sought from the peculiar nature of the case. Let it, however, be laid down as a general rule, that we should turn from that which is prejudicial to us to that which is favorable.
If we are perplexed about our cause, the character of our client may aid us; if about our client, the nature of our cause; if nothing that can be a support to us, presents itself, we may seek for something to damage our adversary; for as it is our greatest wish to gain more favor than our adversary, so it will be our next object to incur less dislike. 45. In regard to offences which cannot be denied, we must endeavor to make them appear less heavy than has been represented, or to have been committed with another intent, or to have no reference to the present question, or to be capable of being expiated by repentance, or to have been already sufficiently punished.
Such allegations it is easier for the advocate to make, therefore, than for his client; for he can praise without incurring the charge of conceit, and may sometimes even blame to advantage. 46. He will sometimes, accordingly, pretend that he is moved with concern, (like Cicero in his speech for Rabirius Posthumus,) in order to gain the ear of the judge, and will assume the sincerity of a person who feels the truth of what he says with a view to gain greater belief when he proceeds to justify or disprove the charges against his client. We are, therefore, to consider first of all whether we should adopt the character of a party in the suit or of an advocate, whenever either is in our power. In the schools, indeed, there is free choice; but in the forum, it is rare that a person is competent to plead his own cause.
47. A youth learning to declaim, however, ought to plead causes, such at least as chiefly depend on the pathetic, in the character of the parties themselves; for the feelings cannot be transferred; and the emotion received from another person's mind is not communicated with the same force as that which proceeds from our own. 48. For these reasons there is thought to be need of insinuation, if the pleading of our opponent has taken effect on the mind of the judges, or if we have to address them when their attention is fatigued; from the one of which difficulties we shall extricate ourselves by promising to bring our own proofs, and by eluding the arguments of the adversary, and from the other by giving hopes that we shall be brief, and by recurring to those other means by which I have shown that the judge may be rendered attentive.
49. A little pleasantry, too, seasonably introduced, refreshes the minds of the judges, and gratification, from whatever quarter produced, relieves the tedium of listening. Nor is the art of anticipating what is likely to be said against us without its use; as Cicero says [at the commencement of the Divinatio in Q. Coecilium] that he knew some had expressed surprise that he, who had for so many years defended many, but prosecuted none, should now appear as the accuser of Verres; and then shows that the accusation of Verres is a defense of the allies. This rhetorical artifice is called prolepsis, or "anticipation." 50. As it is useful at times, it is now almost constantly adopted by some declaimers, who think that they must never begin but with something contrary to their real object.
Those who follow Apollodorus deny that there are only the three ways which I have specified of propitiating the judge, and enumerate various other sorts of them, almost infinite in number, derived from the character of the judge, from notions formed of circumstances relating to the cause, from opinions entertained of the cause itself, and from the elements of which every cause is composed, as persons, deeds, words, motives, seasons, places, occasions, and the like. 51. That advantage may really be taken of these particulars, I readily admit, but consider that they all come under the three heads specified; for if I make the judge propitious, attentive, and ready to be informed, I find nothing more that I need desire; as the very fear, which appears to have the greatest influence independent of these particulars, both secures the attention of the judge, and deters him from showing partiality to the opposite side.
52. Since it is not sufficient, however, to indicate to learners what enters into the nature of an exordium, without instructing them also how an exordium may be best composed, I add that he who is going to speak should reflect what he has to say, before whom, for or against whom, at what time or place, amidst what concurrence of circumstances, under what prepossessions of the public; what opinion it is likely that the judge has formed previous to the commencement of the pleadings, and what the speaker has to desire or deprecate. Nature herself will lead him to understand what he ought to say first.
53. But now they think anything with which they happen to start, an introduction, and whatever occurs to them, especially if it be some thought that pleases them, serves them, forsooth, for an exordium. Many points, doubtless, may be introduced into the exordium which are derived from other parts of the cause, or which are common to the exordium with other parts; but nothing will be said preferably in any particular part, but that which cannot be said equally well in any other part.
54. There is much attraction in an exordium which derives Its substance from the pleading of our opponent, for this reason, that it does not appear to have been composed at home, but to be produced on the spot, and from the suggestion of the subject; it increases the reputation of the speaker for ability, from the facility which he exhibits, and, from wearing the appearance of a plain address, prompted by what has just been said, gains him the confidence of his audience; insomuch that, though the rest of his speech may be written and carefully studied, the whole of it nevertheless seems almost entirely extemporaneous, as it is evident that its commencement received no preparation at all. 55. Very frequently, too, an exordium will be pleasing from a certain modesty in the thoughts, style, tone, and look of the speaker, so far that even in a cause which hardly admits of controversy, the confidence of the orator ought not to display itself too plainly; for the judge generally detests assurance in a pleader, and, as he knows his own authority, tacitly looks for a due portion of respect.
56. We must take no less care, also, that we may not excite suspicion in the exordium; and therefore no appearance of study ought to be shown in it, because all art on the part of the orator seems to be directed against the judge. 57. But to avoid the suspicion of using art is the achievement of the highest art; a precept which is given by all writers on rhetoric, and with the utmost propriety; yet the present practice, from the state of things in our times, is somewhat at variance with it; because on certain trials, especially capital ones, and those before the centumviri, the judges themselves require to be addressed in careful and formal speeches, and think themselves slighted if study is not apparent in every pleading before them, desiring not only to be instructed but to be pleased. 58. Moderation in such a practice is difficult, but it may be so far observed that we may give our oratory the appearance of carefulness and not of cunning.
Of the old precepts this still remains in force, that no unusual expression, no highly audacious metaphor, nothing borrowed from what is obsolete and antiquated, or from poetic license, should appear in the exordium. 59. For we are not as yet admitted to full freedom of speech, and the attention of the audience, being still fresh, keeps us under restraint, but when their minds are propitiated and warmed, greater liberty will be tolerated, and especially when we have entered on those moral topics of declamation whose natural fertility prevents the boldness of an expression from being observed amid the splendor of beauty that surrounds it.
60. Our style in the exordium ought not to resemble that of the argumentative, or sentimental, or narrative parts of our speech. Nor should our manner be too prolix*or circumlocutory, but should wear the appearance of simplicity and unaffectedness, not promising too much either in words or look. A mode of delivery in which all art is concealed, and which, as the Greeks say, is, ανεπιφατος, "unostentatious," steals often most successfully on the mind of the hearer. But such points are to be managed according to the way in which it is expedient that the minds of the judges should be impressed.
61. To be confused in memory, or to lose our fluency of speech, has nowhere a worse effect than at the commencement, as a faulty exordium may be compared to a countenance disfigured with scars; and that pilot is surely one of the worst who runs his vessel aground as it is leaving the harbor. As to the length of an exordium, it must be regulated by the nature of the cause. 62. Simple causes require but a short introduction; such as are perplexed, suspicious, or unpopular, demand a longer one. But those who have prescribed laws for all exordia, saying that they must be limited to four sentences, make themselves ridiculous. Yet immoderate length in the introduction is no less to be avoided, lest the speech should seem to have a head of disproportionate size, and lest that which ought to prepare the hearer should weary him.
63. The figure by which the orator's address is turned from the judge, and which is called apostrophe, some rhetoricians wholly exclude from the exordium, being doubtless led by some show of reason to form such an opinion on this point; for it must be admitted that it is most natural for us to address ourselves chiefly to those whose good will we desire to secure. 64. At times, however, some striking thought may be necessary to our exordium, and this may be rendered more lively and spirited if directed to another person. Should this be the case, by what law, or by what superstitious regard for rules, should we be prevented from giving force to our conceptions by this figure? 65. Writers of books on the art, indeed, do not proscribe the figure as being illicit, but because they do not think it advantageous; and thus, should the advantage of using it be proved, we shall he forced to adopt it for the same reason for which we are now prevented.
66. Demosthenes [P. 228, extr. ed. Reisk] directs his remarks to Aeschines in his exordium; Cicero, in commencing his speech for Ligarius, addresses himself to Tubero, and, in the beginning of those for several other persons, speaks to whomsoever he pleases. 67. His exordium to the speech for Ligarius, indeed, would have been much more languid, if it had been in any other form; as the reader will better understand, if he directs to the judge all that most spirited part which is in this form, You have, therefore, Tubero, that which is most to be desired by an accuser, etc., for then the address would seem really turned away, and the whole force of it would be lost if we were to say, Tubero therefore has that which is most to be desired by an accuser. 68. In the first method the orator urges and presses on his opponent; in the second he would merely make a statement.
The case would be similar with the passage in Demosthenes, if you alter the turn of it. Has not Sallust, too, adopted an exordium directly addressed to Cicero, against whom he was pleading, starting with the words, I should bear your reproaches, Marcus Tullius, with concern and indignation, etc.? The same form has been chosen by Cicero in his attack on Catiline, How long then will you abuse our patience, etc.? 69. And that we may not wonder at the use of the apostrophe, Cicero, in his defense of Scaurus, who was accused of bribery, (a pleading which is found in his commentaries [the other trial of Scaurus was for extortion. Cicero's defense of him on that occasion was published. Scaurus was acquitted of extortion, and found guilty of bribery], for he defended Scaurus twice,) employs the prosopopeia [he introduces in his exordium some one speaking for the accused; a figure even more bold than the apostrophe], making another person speak for his client; and in his oration for Rabirius Posthumus [C. 1, extr.], and in that also for Scaurus when accused of extortion, he introduces examples in the exordium; while in his speech for Cluentius he commences, as I have previously observed, with partition.
70. But these figures are not, because they may sometimes be used effectively, to be used perpetually, but only whenever reason prevails over rule; as we may sometimes employ the simile, provided it be short, the metaphor, and other figures, (which the timid and careful teachers of rhetoric prohibit,) unless that noble specimen of irony in the speech for Ligarius, which I noticed a little above, gives offence to any reader. 71. Other faults in exordia they have exposed with greater justice. That sort of exordium which may be adapted to several causes is called vulgar [see ad Herenn. i. 7 extr.; Cic. de Inv. i 18]; (a species which, though regarded with little favor, we may occasionally adopt with advantage, and which is not always avoided by the greatest orators;) that which our opponent may use as well as ourselves, is termed common; that which our opponent may turn to his own purpose, is designated as commutable; that which has no just connection with the cause, is styled detached; that which is derived from some other subject, transplanted; some, again, are blamed as long, or contrary to rule. Most of these faults, however, are not peculiar to the exordium, but may be found in any or every part of a speech.
72. Such are the points to be noticed with respect to the exordium, as often as there may be occasion for one; which is not always the case, for it is sometimes superfluous; as when the judge, for instance, is sufficiently prepared without it, or when the subject itself requires no introduction. Aristotle [Rhet. iii. 14, 8], indeed, denies that it is ever necessary in addressing able judges. Sometimes, too, we cannot employ an exordium, even if we wish; as when the judge is much occupied, when time is short, or when a superior authority [if the emperor, for instance, should be judge] obliges us to enter at once upon our subject. 73. Sometimes, on the other hand, the nature of an exordium is found in other parts of the speech; for in the statement of facts, or in the course of our arguments, we occasionally ask the judges to attend, or to be favorable to us; a practice by which Prodicus thought that they might be roused when disposed to sleep.
74. The following passage is an example: Then Caius Varenus [Lucius Varenus, as far as can be judged from a very few fragments of this lost oration of Cicero, was accused of having killed Caius Varenus and Salarius, and of having attempted the life of Cneius Varenus. Cicero endeavors to transfer the guilt from Lucius Varenus to the slaves of Caius Ancharius Rufus, (vii. 2, 10,) but was unsuccessful, for Lucius Varenus was condemned, vii. 2, 36], he who was killed by the slaves of Ancharius, (to this point, judges, pay, I beseech you, the most careful attention,) etc. If the cause, moreover, consists of many heads, a proper introduction must be prefixed to each head: as, Listen now to what follows; or, I now proceed to the next particular. 75. But even among the proofs themselves many observations occur that serve the purpose of an introduction, such as Cicero makes in his speech for Cluentius [C. 42], when about to speak against the censors, and in that for Murena [C. 2], when he makes an apology to Servius. But this practice is so common as to make it unnecessary to establish it by examples.
76. Whether, when we have used an exordium, we afterwards commence a statement of facts, or proceed at once to produce our proofs, that point ought to be stated last in our introduction, with which the commencement of the sequel will most naturally unite itself. 77. But the affectation in the schools, of disguising the transition in some striking thought, and trying to gain applause, forsooth, for what is little more than a trick, is frigid and puerile; though Ovid constantly indulges in it in his Metamorphoses: but, for him, necessity may be some excuse, as he had to unite things the most discordant into the semblance of a whole.
78. But what need is there for the orator to conceal his transitions, and impose upon the judges, when they require to be admonished to give their attention to the order of particulars? The commencement of the statement of facts will even be lost upon them, if they are not aware that such statement is begun. 79. Accordingly, as it is best not to rush abruptly into our statement, so it is preferable not to pass to it without notice. But if a long and perplexed exposition is to follow, the judges must be specially prepared for it; as Cicero has done in many places, and more remarkably in this [Pro Cluent. c. 4 extr.]: I shall make a rather longer introduction than ordinary to demonstrate this point, and I entreat you, judges, not to receive it unfavorably; for, when the commencement is understood, you will with far more ease comprehend the sequel.
Such are the principal notions which I have conceived respecting the exordium.
1. It is most natural, and ought to be most usual, that when the judge has been prepared by the methods which have been noticed above, the matter, on which he is to give judgment, should be stated to him. 2. This is the narrative, or statement of the case; but, in touching upon it, I shall purposely pass over the too subtle distinctions of those who make several kinds of statements; for they will have an exposition, not only of the business on which the question is brought before the judges, but of the person whom it concerns, as, Marcus Palicanus, a man of humble birth, a native of Picenum, loquacious rather than eloquent [we learn from Aulus Gellius, i. 15, that these words are taken from the lost history of Sallust. The man characterized in them is doubtless the same that Cicero, Brut. c. 62, calls aptiorem auribus imperitorum. Compare Val. Max. iii. 8 Rom. 3; Ascon. Ped. p. 19, 61; ad Cic. Div. c. 3, at Act. in Verr. pr. c. 15; Cic. ad Attic. i 1, 18]; or of the place at which it occurred, as, Lampsacus, judges, is a town on the Hellespont [Cic. in Verr. i. 24]; or of the time, as,
In early spring, when from the hoary hills
or of the causes of the occurrence, which historians very often give, when they show whence arose a war, a sedition, or a pestilence. 3. In addition to these distinctions, they call some statements perfect, others imperfect; but who is not aware of such a difference? They add that there is a kind of statement regarding past time, which is the most common kind; another respecting the present, such as that of Cicero [Pro Rosc. Am. c. 23] about the stir of Chrysogonus's friends when his name was mentioned; and a third relating to the future, which can be allowed only to prophets; for hypotyposis [IX. 2, 40; Cic. De Orat. iii. 53] is not to be regarded as a statement of facts. 4. But let us turn our attention to matters of more importance.
Some have thought that there must always be a statement of facts [from Seneca the father, p. 149, we learn that Apollodorus always required a statement of facts, but that Theodorus did not]; but that this notion is unfounded, may be proved by many arguments. In the first place, there are some causes so brief, that they require only a mere proposition rather than a statement. 5. This may happen at times on either side, when there is either no exposition of matters, or when the parties are agreed about the fact, and there is no dispute but concerning the law; as in such questions as these before the centumviri, Whether a son or a brother ought to be the heir of a woman that dies intestate; or whether puberty is to be decided by years or by a certain habit of body. Or when there is indeed room for a statement of facts in the cause, but every particular of it is previously known to the judge, or has been fully set forth in the preceding part.
6. At times, again, it may happen only on one side, and more frequently on that of the prosecutor, either because it is sufficient for him to make a simple proposition, or because it is more advantageous for him to do so. It may be sufficient, for instance, to say, I claim a certain sum of money lent on certain conditions; or, I claim a legacy according to a certain will; and it will be for the opposite party to show why such claims are not due. 7. It is sufficient for the prosecutor, and more advantageous, to open his cause in this way, I say that the sister of Horatius has been killed by him, for the judge comprehends the whole charge from this one proposition; and then the way in which the act took place, and the motive for it, are left rather to be stated by the defendant.
8. As for the accused person, he will withhold a statement of facts, when the charge against him can neither be denied nor palliated, but will rest solely on a question of law; thus, in the case of the man who, having stolen the money of a private person out of a temple, is accused of sacrilege, a confession will show more modesty than a statement. We do not deny, the defendant and his advocate may say, that the money was taken from the temple; but the accuser makes the charge that we are amenable to the law against sacrilege, though the money was private, and not consecrated; and it is for you to decide the question whether sacrilege has been committed.
9. But though I allow that there are at times such reasons for giving no statement of facts, I dissent from those who think that there is no statement when an accused person merely denies the charge which is brought against him; an opinion which is held by Cornelius Celsus, who considers that most trials for murder, and all those for bribery and extortion, are of this class; 10. for he thinks that there are no statements of facts but such as give a general exposition of the charge on which judgment is to be pronounced; yet he admits himself that Cicero gives a statement of facts in his oration for Rabirius Posthumus; though Cicero denies that any money came into the hands of Rabirius, which was the very point on which the question rested; and, in his statement of facts, he gives no exposition of the charge.
11. For my part, besides resting on the authority of eminent rhetoricians, I am myself of opinion that there are two kinds of statements in judicial causes; the one sort being an exposition of the cause itself, and the other of the circumstances connected with it. 12. I have not killed a man; here there is no statement of facts; it is admitted that there is none; but there will be one, and sometimes a long one, in reply to the support of the accusation, and in regard to the past life of the accused, the causes by which an innocent man has been brought into peril, and other circumstances by which the charge is rendered incredible. 13. For the accuser does not say merely, You have killed, but states by what proofs he can establish his assertion; as in tragedies, when Teucer accuses Ulysses of having killed Ajax, saying that he was found in a solitary place, near the dead body of his enemy, and with a blood-stained sword in his hand, Ulysses does not merely reply that the deed was not committed by him, but affirms that there was no enmity between Ajax and himself, and that they had been rivals only for glory; and then adds how he came into that lonely spot, saw the dead body lying on the ground, and drew the sword out of the wound. To this statement are subjoined various arguments. [As, I am not to be accused of killing him became I was found near the body; else suspicion would have fallen upon you, his brother, if you had been found near it.]
14. But there is a statement of fact even when the accuser says, You were in the place in which your enemy was killed, and the defendant says, I was not, for he must show where he was. For the same reason, causes of bribery and extortion may have several statements of this kind, as there may be several heads of accusation; in which statements, indeed, the charges will be denied, but resistance must at the same time be made to the accuser's arguments, sometimes singly, sometimes in a body, by an exposition of matters totally different from his.
15. Will a person accused of bribery act wrong in stating what sort of parents he had, how he himself has lived, or on what pretensions he relied when he proceeded to stand for office? Or if a man is accused of extortion, may he not advantageously give an account of his past life, and of the means by which he brought upon him the resentment of his whole province, or of his accuser, or some particular witness?
16. If such an account is not a statement of facts, neither is that first speech of Cicero in behalf of Cluentius, commencing with the words Aulus Cluentius Habitus [Cic. pro Cluent. c. 5]; for there is nothing in that speech about the poisoning, but merely about the causes by which his mother became his enemy. 17. Statements also relate to the cause, but are not part of the cause itself, which are given for the sake of example, as that in Cicero's speech against Verres concerning Lucius Domitius [In Verr. v. 3], who crucified a shepherd because he confessed that he had used a hunting-spear in killing a boar which he offered as a present to Domitius; 18. or for the purpose of exposing some charge foreign to the case, as in Cicero's oration for Rabirius Posthumus [C. 10]: For as soon as he came to Alexandria, judges, the only method of preserving his money proposed by the king to Posthumus was this, that he should take the charge, and as it were stewardship, of the palace; or with the intention of exaggerating, as in the description of the journey of Verres [In Verr. i. 16, 17].
19. Sometimes a fictitious statement of particulars is introduced; either to rouse the feelings of the judges, as that in the speech for Roscius respecting Chrysogonus, which I mentioned a little above; or to amuse them with a little pleasantry, as that in the speech for Cluentius regarding the brothers Cepasii [Cic. pro Cluent. c. 20, 21]; or, occasionally, to make a digression for the purpose of embellishment, as that in the speech against Verres [IV. 48] concerning Proserpine: It was in these parts that a mother is said formerly to have sought her daughter. All these observations assist to show that he who denies may not only make a statement, but a statement concerning the very point which he denies.
20. Nor is the observation which I made above, that a statement is superfluous respecting a matter with which the judge is acquainted, to be taken absolutely; for I wish it to be understood in this sense, that it is superfluous if the judge not only knows the fact, but takes such a view of it as is favorable to our side. 21. For a statement of facts is not made merely that the judge may comprehend the case, but rather that he may look upon it in the same light with ourselves.
Though, therefore, he may not require to be informed, but only to be impressed in a certain way, we may make a statement with some preliminary remarks, as that, we are aware that he has a general knowledge of the case, but entreat him not to be unwilling to listen to an account of particulars. 22. Sometimes we may pretend to repeat our statement for the information of some new member taking his seat among the judges; sometimes, in order that even the by-standers may be convinced of the iniquity of what is asserted on the opposite side. In this case, the statement must be diversified with varieties of phraseology, to spare the judge the weariness of hearing what he already knows; thus we may say, You remember, and, Perhaps it may be unnecessary to dwell on this point, or, But why should I say more on this subject, when you are already acquainted with it? or, Of the nature of this affair, you are not ignorant; or we may introduce various other phrases similar to these. 23. Besides, if a statement of facts seem always unnecessary before a judge to whom the cause is known, the pleading of the cause before him may seem also to be sometimes unnecessary.
24. There is another point about which there is still more frequently a question, Whether the statement of facts is always to be immediately subjoined to the exordium; and those who hold the affirmative cannot be thought destitute of arguments to support them; for as the exordium is made with the intent that the judge may be rendered more favorable by it, and more willing and attentive to understand the case, and as proof cannot be adduced unless the case be previously understood, it appears right that the judge should at once be made master of the facts.
25. But the nature of a cause sometimes justly changes this order; unless, perchance, Cicero be thought, in that excellent oration which he wrote on behalf of Milo, and which he has left to us, to have injudiciously delayed his statement of facts, by introducing three questions [these three questions are to be gathered from what follows: 1. About defending a man who confessed that he had killed another, 2. About the pre-judgment of the senate, 3. About the feeling of Pompey] before it; or unless it would have been of any profit to relate how Clodius lay in wait for Milo, if it had been supposed impossible for an accused person, who confessed that he had killed a man, to be defended, or if Milo had been already prejudged and condemned by the senate, or if Pompey, who, to favor some party, had surrounded the place of trial with a troop of armed men, had been dreaded by Milo as ill-disposed towards him.
26. These questions, therefore, were of the nature of an exordium, as they all served to prepare the judge. But in his speech for Varenus, also, he did not introduce his statement of facts until he had refuted certain allegations. This mode of proceeding will be of advantage, too, whenever the charge is not only to be resisted, but to be retorted on the opposite party, so that our own case being first established, our statement of facts may be the commencement as it were of a charge against our adversary; as, in a passage of arms, care to ward off a blow takes the precedence of anxiety to inflict one.
27. There are some causes, and indeed not a few, which are easy to be defended so far as to refute the charge on which the trial bears, but which labor under many grievous enormities of the defendant's former life; and these must first be set aside, in order that the judge may listen favorably to the defense of the point about which the question really is. Thus, when Marcus Caelius is to be defended, does not his advocate judiciously repel the imputations against him of luxury, licentiousness, and immorality, before he proceeds to consider that of poisoning? It is about these points that the whole of Cicero's pleading is employed. And does he not then make a statement about the property of Palla [Cic. pro Coel c. 10. Palla was the name of a man whose property Caelius had been accused of appropriating to himself], and explain the whole question respecting the violence [in killing Dion the legate of the Alexandrines; c. 10, and 21, 22], which is defended by the pleading of Caelius himself? [For Caelius also defended himself in this cause; comp. xi 1, 51; and Suet, de Clar. Rhet. c 2.]
28. But the custom of the schools is our guide, in which certain points are proposed for us to speak upon, which we call themata, and beyond which there is nothing to be refuted; and thus it is that our statement of facts is always subjoined to our exordium. 29. Hence, too, is the liberty which the declaimers take to make a statement of facts even when they appear to speak in the second place in a cause [it was not invariably settled in the forum that the accuser should speak first, and the defendant reply]; for when they speak for the prosecutor, they make a statement of facts just as if they were speaking first, and a defense as if they were replying to the opposite party; and such practice is very proper; for as declamation is an exercise preparatory to pleading in the forum, why should not learners qualify themselves to take either the first or second place?
But, ignorant of the proceedings in the courts, they think that when they come into the forum no departure is to be made from the manner to which they have been accustomed in the schools. 30. Yet even in scholastic declamations it occasionally happens that a mere proposition is in place of a statement of the case; for what statement has he to make who accuses a jealous man of ill-treating his wife, or he who accuses a cynic [see Declam. Quint. 283; Cynicus diserti filius] of indecency before the censors, when the whole charge is sufficiently expressed by a single word, in whatever part of the speech it be introduced? But on this head I have said enough.
31. I shall now add some remarks on the method of stating a case. A statement of a case is an account of a thing done, or supposed to have been done; which account is adapted to persuade; or, as Apollodorus defines it, a narrative to inform the auditor what the matter in question is. Most writers, and especially those who are of the school of Isocrates, direct that it should be lucid, brief, and probable. It is of no consequence if, instead of lucid, we say perspicuous, or, instead of probable, credible or apparently deserving of belief. 32. Of this specification I approve; though Aristotle [Rhet. iii. 16. 4] differs from Isocrates in one particular, as he ridicules the direction about brevity, as if it were absolutely necessary that a statement should be long or short, and as if there were no possibility of fixing on a just medium. As to the followers of Theodorus, they recognize only the last quality, saying that it is not always proper to state briefly or lucidly. 38. On this account I must the more carefully distinguish the various peculiarities of statements, in order to show on what occasions each quality is most desirable.
A statement, then, is either wholly in our own favor, wholly in that of our opponent, or a mixture of both. If it be wholly in our own favor, we may be content with the three qualities of which the effect is that the judge more readily understands, remembers, and believes. 34. Nor let any one think me to blame for remarking that the statement which is wholly in our favor ought to be made probable, though it be true; for there are many narratives true which are not probable, and many probable which are not true. We must therefore take no less pains that the judge may believe what we say truly than what we invent.
35. The qualities, indeed, which I have just enumerated, are meritorious in other parts of our speech; for through our whole pleading we should avoid obscurity; a certain succinctness in what we say should be everywhere observed; and all that is advanced ought to be credible. But these qualities are most of all to be studied in that part which gives the first information to the judge; for if, in that part, he happens not to understand, not to remember, or not to believe, we shall exert ourselves to no purpose in the sequel.
36. The statement, however, will be clear and perspicuous, if it be expressed, first of all, in proper and significant words, not mean, nor far-sought, nor at variance with common use, and if it give a lucid account, also, as to circumstances, persons, occasions, places, and motives, and be delivered, at the same time, in such a way that the judge may without difficulty comprehend what is said. 37. This excellence is wholly disregarded by most speakers, who, prepared for the shouts of a multitude, whether suborned for the purpose or collected by chance, cannot endure the silence of an attentive auditory, and do not think themselves eloquent unless they shake the whole court with noise and vociferation; they consider that to state a matter calmly belongs only to every-day conversation, and is in the power of even the most illiterate. while, in truth, it is uncertain whether they will not or cannot perform that of which they express such easy contempt.
38. For if they try every department of eloquence, they will find nothing more difficult than to say what every one, when he has heard it, thinks that he himself would have said; and for this reason, that he does not contemplate it as said with ability, but with truth; but it is when an orator is thought to speak truth that he speaks best. 39. But now, as if they had found a wide field for themselves in their statement, they assume an extravagant tone of voice in this part of their speech, throw back their heads, strike their elbow against their sides, and revel in every sort of combination of thoughts and words; while, what is monstrous, their delivery pleases, and their cause is not understood. But let me put an end to these animadversions, lest I should gain less favor by prescribing what is right than ill-will by censuring what is wrong.
40. Our statement will be sufficiently concise, if, in the first place, we commence the exposition of the case at the point where it begins to concern the judge; next, if we say nothing foreign to the cause; and, lastly, if we retrench everything of which the absence will deduct nothing from the knowledge of the judge or the advantage of our client. 41. For there is often a brevity in parts, which nevertheless leaves the whole very long; as, I came to the harbor; I beheld a vessel; I asked for how much it would take me; I agreed about the price; I went on board; the anchor was weighed; we loosed our cable [see the Epistle to Trypho, sect. 3], and set sail. Here none of the phrases can be expressed with greater brevity; yet it would be sufficient to say, I set sail from the harbor; and whenever the event sufficiently indicates what has preceded it, we ought to be content with expressing that from which the rest is understood.
42. As I can easily say, therefore, I have a grown-up son, it is quite superfluous for me to indulge in circumlocution, and say, Being desirous of having children, I married a wife, I had a son born to me, I reared him, and have brought him up to full age. Some of the Greek writers, accordingly, have distinguished a concise exposition, συντομον, from a brief one, the first being free from everything superfluous, while the other may possibly want something that is necessary. 43. For myself, I make brevity consist, not in saying less, but in not saying more, than is necessary; for as to repetitions, and ταυτολογιαι, and περισσολογιαι, which some writers on rhetoric desire to be avoided in a statement of facts, I say nothing about them, since such faults are to be shunned for other reasons than that of observing brevity.
44. We must no less be on our guard, however, against that obscurity which attends on those who abbreviate every part too much; and it is better that there should be something superabundant in a statement than that anything should be wanting; for what is unnecessary is attended with weariness, but what is necessary is not withheld without danger. 45. We must consequently avoid the conciseness of Sallust, (though in him it is accounted a merit,) and all abruptness in our language; that which does not escape a reader who has leisure to re-examine, is perhaps lost altogether upon a mere auditor, who has no opportunity of hearing it repeated; and a reader, besides, is generally a person of learning; while a judge is often one whom the country sends to the courts [decuriae of the judices, of which Augustus constituted four, and Caligula added a fifth. Each of these consisted of a thousand or more judices, who, as they were mostly engaged in tilling their grounds, and came into the city only when required to act as judices, were for the most part rude and illiterate] to give a decision on what he can manage to understand; so that perhaps everywhere, but especially in the statement of facts, we ought to adhere to a judicious medium in our language, and say just what is necessary, and what is enough.
46. But by what is necessary I would not wish to be understood what is barely necessary to state a fact; for brevity ought not to be wholly unadorned, or it becomes mere rudeness. What attracts us, beguiles our attention; the more agreeable a story is, the less long it appears; and a pleasant and easy road, though it be of greater extent, fatigues us less than a shorter one that is rugged and unattractive. 47. Nor would I ever have so much regard to brevity as not to wish that everything should be inserted that can make the statement of facts credible; for one that is every way plain and curtailed may be called not so much a statement as a confession. There are also many statements that are necessarily long from the nature of the case, and for attending to them, as I recommended above, the judge must be prepared by the conclusion of the exordium; and we must then study, by every art in our power, to take something from the length and something from the tediousness of our narrative.
48. We shall make it somewhat less long, if we defer such particulars as we can to another part of our speech, not without specifying, however, what we defer: What motives he had for killing him, whom he took as accomplices, how he disposed his ambush, I shall relate when I offer my proofs. 49. Some particulars, too, may be set aside, as it were, out of the course of the narrative; an expedient of which we have an example in Cicero: Fulcinius died; for many circumstances that attended the event, I shall omit, as being unconnected with the cause. Division also lessens the tediousness of a statement: I shall relate what took place before the commencement of the affair; I shall relate what occurred during the course of it; I shall relate what happened afterwards. 50. Thus there will appear rather to be three short narratives than a single long one. Sometimes it will be proper to break our statements by a short interlocution: You have heard what occurred before; hear now what followed.
Thus the judge will be relieved at the conclusion of the first part, and will prepare himself for entering as it were upon a new subject. 51. But if, when all these artifices have been tried, the detail of particulars will still extend to a great length, a kind of recapitulation at the end of each part will not be without its advantage, such as Cicero [Pro Ligar. c. 2] gives even in a short statement: Hitherto, Caesar, Quintus Ligarius is free from all blame; he left his home not only for no war, but without there being even the least suspicion of war, etc.
52. As to credibility in our statement, it will not be wanting, if we first consult our own judgment, so as to advance nothing contrary to nature; and if, in addition, we assign causes and motives for the facts which we detail; (I do not mean for all, but for those about which there is any question;) and if we represent our persons, at the same time, as of a character in accordance with the facts which we wish to be believed of them; a person accused of theft, for instance, as covetous; of adultery, as libidinous; of homicide, as rash; or the contrary, if we are on the defense; and we must do the same with regard to places, occasions, and similar particulars. 53. There is also a certain management of the narrative which gives it credibility, as in plays and pantomimes; for some things naturally follow and attach themselves to others, so that, if you make the first part of your statement judiciously, the judge himself will understand what you are going to say afterwards.
54. Nor will it be without advantage if we scatter here and there some seeds of proof, but so as not to forget that we are stating a series of facts and not of arguments. Occasionally, however, we may even confirm what we advance with some degree of proof, but simple and short; for example, in a case of poisoning, we may say, He was well when he drank, he fell down suddenly, and a blackness and swelling of the body immediately followed. 55. Preparatory remarks produce the same effect, as when it is said that the accused was strong, armed, and on his guard, in opposition to those who were weak, unarmed, and unsuspecting. On everything, indeed, of which we have to treat under the head of proof, as character, cause, place, time, instrument, occasion, we may touch in our statement of facts.
56. Sometimes, if these considerations fail us, we may even confess that the charge, though true, is scarcely credible, but observe that it must be regarded on this account as a greater atrocity; that we know not how it was committed, or why; that we wonder at the occurrence, but will nevertheless prove the truth of it. 57. But the best of all preparations of this kind are those of which the intention is not apparent; as in Cicero every circumstance is most happily promised by which Clodius may be proved to have lain in wait for Milo, and not Milo for Clodius; but what has the greatest effect is that most artful assumption of an air of simplicity: Milo having been in the senate-house that day, returned home as soon as the senate broke up, changed his shoes and his dress, and wailed a short time, while his wife, as is usual, was getting ready. 58. How well is Milo represented as having done nothing with premeditation, nothing with haste!
This effect that master of eloquence produces not only by the circumstances which he narrates, and by which he signifies Milo's delay and composed manner of departure, but by the familiar and ordinary words which he uses, and his well concealed art in adopting them; for if the particulars had been stated in other terms, they would have warned the judge, by their very sound, to be on his guard against the pleader. 59. To most people this passage appears lifeless, but it is hence manifest how wholly the art escaped the judge, when it is hardly observed even by a reader.
Such are the qualities that render a statement of facts credible. 60. As to directions that we should avoid contradictions or inconsistencies, if any one needs them, he will receive further instruction in vain, though some writers on rhetoric introduce such matters into their works, imagining that they were hidden from the world till they were sagaciously discovered by themselves.
61. To these three properties of a statement of facts some add magnificence, which they call μεγαλοπρεπεια, but which is neither appropriate to all pleadings, (for what place can language, raised above the ordinary level, have in most causes about private property, about loans of money, letting and hiring, and interdicts?) nor is always beneficial, as is evident from the last example from the speech for Milo.
62. Let us bear in mind, too, that there are many causes in which we have to confess, to excuse, to extenuate what we state, in all which cases magnificence of language is utterly inadmissible. It is therefore no more our business, in making a statement, to speak magnificently, than to speak dolefully, or invidiously, or gravely, or agreeably, or politely; qualities which, though each is commendable in its proper place, are not to be assigned, and as it were devoted, to this part peculiarly.
63. That quality, also, which Theodectes assigns peculiarly to the narrative of facts, desiring that it should be not only magnificent but pleasing, is, though very suitable to that part of a speech, merely common to it with other parts. There are some, too, who add clearness, or what the Greeks call εικργεια.
64. Nor will I deceive my reader so far as to conceal from him that Cicero [De Oral. ii. 80; Topic. c. 26; Part. Orat. c. 9] desires several qualities in a statement of facts; for besides requiring it to be plain, and concise, and credible, he would have it self-evident, characteristic, and suitable to the occasion. But everything in a speech ought to be in some degree characteristic and suitable to the occasion, as far as is possible. Self-evidence in a narrative, as far as I understand the meaning of the term, is doubtless a great merit, (as what is true is not only to be told, but ought to a certain extent to make itself seen,) but it may surely be included under perspicuity, which some, however, have even thought hurtful at times, because in some cases, they say, truth must be disguised. 65. But this is an absurd observation; for he who wishes to disguise truth, wishes to relate what is false as if it were true; and, in what he relates, he must still study that his statement may seem self-evident.
60. But since we have come, by some chance as it were, to a more difficult kind of statements, let me say something on those causes in which the truth is against us; in which case some have thought that the statement of facts should be wholly omitted. Nothing, certainly, is easier than such omission, except it be to forbear from pleading the cause altogether. But if, for some good reason, you undertake a cause of this sort, what art will there be in confessing by your silence that your cause is bad? unless you think that the judge will be so senseless as to decide in favor of that which he knows that you are unwilling to tell him. 67. I do not dispute that as some things in a statement may be denied, others added, and others altered, so likewise some may be suppressed; but such only are to be suppressed as we ought or are at liberty to suppress. This is done sometimes for the sake of brevity, as when we say, for example, He answered what he thought proper.
68. Let us distinguish, therefore, the different kinds of causes; for in causes in which there is no question about the charge, but only about a legal point, we may, though the matter be against us, admit the truth: He took money from a temple, but it was that of a private individual; and he has therefore not committed sacrilege. He carried off a maiden; yet option [the woman on whom a rape was committed had the privilege of choosing whether the ravisher should be put to death or marry her; but the father had, by law, no choice in the case] is not to be granted to her father. 69. He dishonored a well-born youth; and the youth, on being dishonored, hung himself, yet the author of his dishonor is not to be capitally punished as being the cause of his death, but is to pay ten thousand sesterces [by the Scatinian or Scantinian law], the fine imposed on him who is guilty of such a crime. But in such confessions something of the bad impression may be removed which the statement of our opponent may have produced; since even our slaves speak apologetically concerning their own faults.
70. Some things, also, we may palliate without assuming the tone of narrative: He did not, as our opponent alleges, enter the temple for the purpose of stealing, or watch for a favorable moment for accomplishing such object; but, tempted by the opportunity, the absence of the guards, and the sight of money, which has too strong an influence over human resolution, he yielded. But what has this to do with the question? He transgressed, and became a thief? It is of no use to palliate an act of which we do not shrink from the penalty. 71. Sometimes, too, we may seem even to condemn our own client; addressing him, for example, thus: Would you have me say that you were excited with wine? That you fell into an error? That you were led astray in the darkness? All this may perhaps be true; but you have nevertheless dishonored a free-born person; you must pay ten thousand sesterces.
Sometimes, again, our cause may be guarded by a careful opening, and then fully stated. 72. Every thing was adverse to the three sons who conspired to kill their father; they had drawn lots, and had entered their father's chamber, at night, one after another, while he was sleeping; but, as none of them had the heart to kill him, they confessed the whole matter to him when he awoke. 73. Yet if the father (who indeed divided his estate among them [this father had previously divided his estate among his sons who plotted against his life, and when they were accused of intended parricide by the father's relations, who would succeed to the estate if the sons were proved guilty, the father himself appeared as advocate for his children on their trial], and defended them when accused of parricide) should plead thus, As to defense against the law, a charge of parricide is brought against young men whose father is still alive, and appears on their behalf; and to give a regular statement of the case, therefore, would be superfluous, since the law has no bearing on it; but if you require a confession of my own misconduct, I was an austere father, and a tenacious guardian of that property which would have been better managed by them; 74. and should then observe that they were prompted to the act by youths whose fathers were more indulgent, but had nevertheless such feelings as was proved by the fact that they could not kill their father; for that it would have been needless for them to take an oath to kill him, if they had had the resolution to do so without it, nor would there have been any need of a lot, had not each of them been desirous to be exempted from the act; all arguments of this nature, such as they are, would find the minds of the audience more favorably disposed to receive them, when softened by the brief defense offered in the first proposition.
75. But when it is inquired whether a thing occurred, or what sort of thing occurred, how, though everything be against us, can we avoid making a statement, if we adhere to what is due to our cause? The accuser has made his statement, and, not confining himself to intimate how matters took place, has added much to our prejudice, and exaggerated it by his language; his proofs have been brought; his peroration has excited the judges, and left them full of indignation; they naturally wait to hear what will be advanced on our side. 76. If we advance nothing, the judges must necessarily believe that what our opponent has said really happened, and that it happened just as he represented it. What then, it may be asked, shall we tell the same story as our opponent? If the question is about quality, (which is the next consideration after that of fact is settled,) we must tell the same story certainly, but not in the same way; we must assign other causes for actions, and give another view of them. 77. We may extenuate some things by the terms in which we speak of them; luxury may be mentioned under the softer term of gaiety, avarice under that of frugality, and carelessness under that of good nature. A certain degree of favor, or at least of commiseration, we may gain by our look, tone, gratitude. A confession of itself will sometimes draw tears.
As to those who are of a contrary opinion about a statement, I would willingly ask them whether they mean to justify, or not to justify, that which they do not mean to narrate? 78. For if they neither justify facts, nor make a statement of them, their whole cause will be betrayed; but if they mean to offer a justification, it is surely necessary for them, for the most part, to state what they intend to justify. Why, then, should we not make a statement of that which may be refuted, and make it, indeed, with that very object? 79. Or what difference is there between proof and a statement of facts, except that a statement is a connected exposition of that which is to be proved, and proof is a verification of that which has been stated?
Let us consider, then, whether such a statement, in opposition to that of our opponent, ought not to be somewhat longer and more verbose than ordinary, by reason that we have to prepare the mind of the judge, and by reason of particular arguments that we may introduce; (I say particular arguments, and not a continued course of argumentation;) and it will give great effect to our statement if we affirm, from time to time, that we shall establish what we say; that the strength of our cause could not be shown in the first exposition of it; that we entreat the judges to wait, suspend their opinions, and trust that we shall make good our point. 80. Finally, we must relate whatever can be related otherwise than our adversary has related it; or, for the same reason, exordia in such causes may be thought superfluous, since what further purpose have they, than to render the judge more disposed to understand the cause? But it is admitted that there is nowhere greater use for them, than where the mind of the judge is to be freed from some prepossession conceived against us.
81. As to conjectural causes [when the accused denies that he is guilty of the fact charged against him, he will hardly make a statement of it, unless he throws the guilt upon some other party], in which the question is about fact, they do not so often require an explanation of the point on which a decision is to be given, as of the circumstances from which a knowledge of it is to be collected. As the prosecutor will represent those circumstances in an unfavorable light, the defendant must try to remove the unfavorable impression produced by him; the circumstances must be laid before the judge by the one in a different way from that in which they are presented to him by the other.
82. But, it may be said, some arguments are strong when advanced in a body, but of less force when separated. This remark, I answer, does not apply to the question Whether we ought to make a statement, but how we ought to make one. For what hinders us from accumulating a variety of evidence in our statement, and to promise to produce more? Or to divide our statement into portions, to give proofs under each portion as it is brought forward, and so proceed to what follows? 83. For I do not agree with those who think that we must always relate matters in the order in which they occurred; I consider rather that we should relate them in the order which is best for our cause. This may be effected by various artifices; for sometimes we may pretend that something has escaped our memory, with a view to introduce it into a place better suited to our purpose; sometimes we may quit the proper order, and assure the judge that we shall afterwards return to it, as the case will thus be rendered clearer; sometimes, after relating a fact, we may subjoin the motives that preceded it; 84. for there is no fixed law for a defense, or any invariable rule; we must consider what is best adapted to the nature of the case, and to the occasion; and must act as in regard to a wound, which, according to its state, must either be dressed at once, or, if the dressing can be delayed, must be bound up in the meanwhile.
85. Nor would I consider it unlawful to repeat a thing several times, as Cicero has done in his speech for Cluentius; a liberty which is not only allowed to be taken, but is sometimes even necessary, as in cases of extortion, and all such as are not at all complicated. It is the part of a fool, indeed, to be led by a superstitious regard for rules to act against the interest of his cause. 86. It is the practice to put the statement of facts before the proofs, that the judge may not be ignorant of the point about which the question is; and why, then, if every circumstance is to be established or refuted, is not every circumstance to be stated in our narrative?
For myself, as far as any account is to be made of my practice, I know that I used to adopt that method whenever the interest of any cause required it, and with the approbation, too, of men of experience, and of those who sat in judgment; and in general, (a remark which I do not make from vanity, for there are many, with whom I was associated in pleading, who can contradict me if I speak falsely,) the duty of stating the case was assigned to me. 87. Yet I would not on that account say that we should not more frequently follow the order of facts. In some facts the order cannot be changed without impropriety; as if we should say, for example, that a woman had a child, and should afterwards say that she conceived; that a will was opened, and then that it was sealed; and if, in speaking of such matters, you chance to mention first that which happened last, it is best to make no allusion to that which happened first.
88. There are also at times false statements; of which two kinds are introduced in the forum; one, which depends on extrinsic support; as Publius Clodius rested his cause on the testimony of witnesses, when he affirmed that he was at Interamna the night on which he committed a heinous crime at Rome; the other, which must be supported by the ability of the pleader; and this relies sometimes on a mere assumption of modesty in him, whence it appears to me to be called complexion; sometimes on a peculiar representation of the case. 89. But, whichsoever of the two modes we adopt, our first care must be that what we invent, be possible; next that it be in accordance with person, place, and time, and have a character and order that are probable; and, if it be practicable, our representation should be connected with something that is acknowledged to be true; or be supported by some argument relative to the question; for what is altogether sought from without the cause, is apt to betray the license which we take in inventing.
90. We must be extremely watchful, too, that no two particulars (as often happens with tellers of fiction) contradict one another; (for some things may suit very well with certain parts of our case, and yet not agree with each other on the whole;) and also that they be not at variance with what is acknowledged to be true; it being a maxim even in the schools, that the complexion is not to be sought from without the argument. 91. But both in the schools and in the forum, the speaker ought to keep in mind, throughout the whole case, what he has invented, since what is not true is apt to be forgotten, and the common saying is just, that a liar ought to have a good memory.
93. Let us consider, also, that if the question be concerning an act of our own, we must adhere to one particular statement; but if concerning the act of another, we may bring it under a variety of suspicious aspects. In some scholastic causes, however, in which it is supposed that a person under accusation does not answer to the questions put to him [when the subject is such that the accused opposes an obstinate silence to every interrogatory, or is, for some reason, not allowed to reply], liberty is granted to enumerate all the answers that might have been given. 93. But let us remember that we are to feign only such things as are not liable to be disproved by evidence; and these are such as proceed only from our own thoughts, of which we alone are conscious; such as are supposed to have been said by the dead, of whom none will appear to refute them; or by one who has the same interest with ourselves, for he will not contradict us; or even by our adversary, as in denying them he will gain no credit. 94. As to imputed motives from dreams and superstitious feelings, they have lost all credibility from the ease with which they are invented.
Nor is it sufficient to adopt a certain color in our statement of facts, unless it preserve a consistency through the whole case; especially as the only mode of establishing certain points lies in asseveration and persistence; 95. as the parasite (who claims as his son a youth that had been three times disinherited [it is to be understood that the rich man had thrice signified an intention to disinherit his son, which the laws did not allow him to carry into execution. Hence the son is said in the text to be absolutus, or sent back to his father's house. The rich man, thus repeatedly disappointed, suborns a parasite whom he had in his house to claim the young man as his own son, hoping to get rid of him by that means] by a rich man, and allowed to return to him,) will have some color for asserting that poverty was his reason for exposing the boy; that the character of parasite was assumed by him merely because he had a son in that house, and that the innocent youth was disinherited three times only because he was not the son of the person who disinherited him, 96. But unless he exhibit, throughout all his speech, the affection of a father, and that in the most ardent manner, together with the hatred of the rich man towards the youth, and his own fear for him, as knowing that he will stay with the greatest danger in a house in which he is so detested, he will , not escape the suspicion of being a suborned claimant.
97. It happens at times in the declamations of the schools, (I know not whether it can possibly happen in the forum,) that both parties make the same allegations, and each supports them on its own behalf; as in this cause: 98. A wife informed her husband that her step-son had endeavored to seduce her, and had appointed a time and place for their meeting; the son, on his part, brought a similar charge against his step-mother, only naming a different time and place; the father finds his son in the place which the wife had named, and his wife in that which the son had named; he divorced his wife, and, as she said nothing, disinherited his son. Nothing can be said on behalf of the young man, which may not also be said on behalf of his step-mother. 99. What is common, however, to both parties, will be stated; and then, from the comparison of persons, from the order in which the informations were given, and from the silence of the wife, when divorced, arguments will be drawn.
100. Nor ought we to be ignorant that there are some cases which do not admit of any coloring, but are simply to be defended [as when a person rests his defense solely on the law]; as was that of the rich man, who lashed with a scourge the statue [Badius Ascensius aptly illustrates this passage by citing a passage from Paulus, Digest, xlv. 10, 27: "If the statue of your father, erected on his monument, has been injured by stones thrown at it you cannot bring an action against the thrower of the stones for violation of a sepulchre, but you may for the injury done to the statue; as Labeo writes."] of a poorer man, that was his enemy, and was in consequence accused of committing an insult. A pleader cannot say in palliation of such an act that it was that of a sensible man; but he may perhaps succeed in defending it from penalty.
101. But if part of a statement be in our favor, and part against us, we must deliberate, according to the nature of the case, whether we ought to blend those parts together, or keep them distinct. If the facts which make against us be the more numerous, those which are in our favor will be overwhelmed by them. In such a case, then, it will be best to divide them, and, after stating and confirming the circumstances that are favorable to us, to adopt against the rest such remedies as we have already specified. 102. If the facts in our favor be the more numerous, we may very well unite them, that those which are adverse to us, being placed as it were in the midst of our auxiliaries, may have less force. Neither the one nor the other, however, are to be exposed undefended; but we must take care to support such as favor us with proof, and add reasons why such as are against us are not to be credited; because, unless we make a distinction, it is to be feared that the good may be polluted by the contamination of the evil.
103. The following directions, too, are commonly given respecting the statement of facts; that no digression is to be made from it; that we are to address ourselves constantly to the judge; that we are to speak in no character but our own; and that we are to introduce no argumentation; and some even add that we are not to attempt to excite the feelings. These precepts, doubtless, are to be in general observed; or, I may say, never to be departed from, unless the nature of our cause obliges us to disregard them. 104. In order that our statement may be clear and concise, nothing can be so seldom justifiable in it as digression; nor ought there ever to be any except such as is short, and of such a nature that we may seem to be hurried into it, out of our right course, by the strength of our feelings.
105. Such is that of Cicero [Pro Cluent. c. 5] respecting the marriage of Sassia: Oh, incredible wickedness in a woman! such as has not been heard of, in the whole course of human life, except in this one female! Oh, unbridled and immoderate lasciviousness! Oh, unparalleled audacity! Not to have feared, if not the power of the gods, or the opinion of men, at least that very night, and those nuptial torches! Not to have respected the threshold of the chamber, or the couch of her daughter, or the very walls themselves, the witnesses of her former marriage! 106. As to constantly addressing the judge, a brief diversion of our speech from him sometimes intimates a thing more concisely, and gives it more effect.
On this point, accordingly, I hold the same opinion as I expressed respecting the exordium; and I think the same with regard to the prosopopeia; which, however, not only Servius Sulpicius [the friend of Cicero and a very celebrated lawyer] has used in his defense of Aufidia, "That you were languid with sleep, should I suppose, or oppressed with a heavy lethargy?" etc., but Cicero himself, in speaking of the ship-masters [In Verr. v. 45], (for that passage is a statement of facts,) exclaims, "For liberty to enter, you will give so much," etc. 107. In his pleading for Cluentius [C. 26], too, does not the conversation between Stalenus and Bulbus contribute greatly to the rapidity of the narrative, and to its credibility? And that he may not be supposed to have fallen into this manner undesignedly, (a supposition which is indeed wholly incredible with regard to such an orator,) he recommends, in his Oratorical Partitions [C. 9], that the statement of facts should display agreeableness, something to excite surprise and expectation, unexpected results, conversations between different people, and all the feelings of the mind.
108. Continued argumentation, as I observed, we must never use in our statement of facts; though we may introduce a single argument occasionally, as Cicero does in his speech for Ligarius [C. 2], when he says that he had governed his province in such a way as made it expedient for him that there should be peace. We may also introduce in our statement, if the subject requires, a short defense of our client's conduct, or a reason for it; for we are not to state things as a witness, but as an advocate. 109. The simple account of a fact may be such as this: Quintus Ligarius went into Africa as lieutenant-general with Caius Considius. But how does Cicero give it? Quintus Ligarius, when there was not even a suspicion of war, went into Africa as lieutenant-general with Caius Considius. 110. In another place, again, He set out, not only to no war, but not even upon the least suspicion of war [Pro Lig. c. 1, 2].
When it was sufficient for him, too, in proceeding to state a fact, to say, Quintus Ligarius allowed himself to be involved in no transaction, he adds, looking back to his home, and being desirous to return to his friends. Thus what he stated he made credible by giving a reason for it, and made a strong impression, at the same time, on the feelings of his audience. 111. l am the more surprised at those, therefore, who think that we are not to touch the feelings in a statement of facts. If they mean, indeed, that we are not to work on them long, or as in the peroration, they are of the same opinion with myself; for tediousness is to be avoided; otherwise, why should I not move the judge while I am instructing him? 112. Why should I not secure, if possible, at the very opening of my case, the object which I am desirous to attain at the conclusion of it, especially as I shall find his mind more manageable, when I come to proofs, if it has previously been swayed by indignation or pity?
113. Does not Cicero [ln Verr. v. 62], in a very few words, touch all the feelings by describing the scourging of a Roman citizen, not only showing the condition of the sufferer, the place of the outrage, the nature of the infliction, but extolling the spirit with which he bore it? For he exhibits him as a man of great magnanimity, who, when he was lashed with rods, uttered no groan, and made no supplication, but only exclaimed that he was a Roman citizen, to the disgrace of his oppressor, and with confidence in the laws. 114. Has he not also, through the whole of his statement, excited the greatest detestation of the treatment of Philodamus [In Verr. i. 30], and caused the tears of his audience to overflow at his punishment, not so much relating that they wept, as exhibiting them weeping, the father, that his son was to die, and the son that his father was to die? What more touching could any peroration present?
115. It is late, too, to bring the feelings, at the end of a speech, to bear on particulars which we have previously narrated with coolness; the judge has become familiarized to them, and hears, without any excitement, that with which he was not moved when it was new to him; and it is difficult for us to change the temper of his mind when once it is settled. 116. For my own part, (for I will not conceal my opinion, though that which I am going to say rests rather upon experience than upon precepts,) I think that the statement of facts requires, as much as any part of a speech, to be adorned with all the attractions and grace of which it is susceptible. But it makes a great difference what the nature of the case which we state is.
117. In the smaller sort of cases, therefore, such as private ones in general are, the garb of the statement ought to be neat, and, as it were close-fitting; there should be the greatest care with regard to words, which, when we enlarge upon the common topics of morality [C. 1, sect. 59], are poured forth with rapidity, and particular expressions are often lost in the profusion of language in which they are enveloped; but here every word ought to be expressive, and, as Zeno [Zeno of Citium; that he wrote on language and composition appears from Diog. Laert. vii. 4, 39, 40] says, tinctured with peculiar signification; the style should be apparently artless, but as agreeable as possible; 118. there should be no figures borrowed from poetry, and received on the authority of the ancients contrary to the simplicity of language, (for the diction should be as pure as possible,) but such only as lessen tedium by variety, and relieve attention by change, so that we may not fall into similar terminations, similar phrases, and similar constructions; for a statement has no other attractions, and, if it be not recommended by such graces, must fail to please. 119. Nor is the judge in any part more attentive; and consequently nothing that is expressed with effect is lost upon him. Besides he is more inclined, I know not how, to believe what gratifies his ear, and is led by being pleased to being persuaded.
120. But when the cause is of greater moment, it will be proper to speak of heinous crimes in a tone of invective, and of mournful occurrences in one of pity; not that the topics for exciting the feelings may be exhausted, but that an outline of them, as it were, may be presented; and that it may at once appear what the full picture of the case will be. 121. Nor would I dissuade a speaker from reviving the strong feeling of the judge, when exhausted with attention, by some remark, especially if thrown in with brevity; such, for instance, as this: The servants of Milo did what every one would have wished his servants to do in such circumstances; or occasionally, perhaps, a little more boldly, as this [Cic. pro Cluent. c. 5]: The mother-in-law marries her son-in-law, without auspices, without any to sanction the union, and with the most fatal omens. 122. As this practice was adopted even in days when every speech was composed rather for use than for show, and the judges were still more austere, how much more aptly may it be done now, when pleasure has made its way even into trials for life and fortune? How far we ought to conform to this taste of our age, I will give my opinion in another place. Meantime I allow that some concession is to be made to it.
123. A probable representation of circumstances which appears to conduct the audience, as it were, to a view of the case, has, when subjoined to what is really true, a powerful effect; such, for example, as the description given by Marcus Caelius [see i. 6, 29, and Val. Max. iv. 2 Rom. 7] of Antonius [Caius Antonius, the colleague of Cicero in the consulship, the uncle of Mark Antony the triumvir]. They [the centurions, who brought him news of the approach of the enemy] find him sunk in the sleep of drunkenness, snoring with the whole force of his lungs, and repeating eructation on eructation, while the most distinguished of his female companions were stretched across towards him from their several couches, and the rest lying round in every direction; 124. who, however, becoming aware of the approach of the enemy, attempted, half dead with terror, to awaken Antonius; they called him aloud by name to no purpose; they raised his head; one whispered gentle sounds into his ear; another struck him forcibly with her hand; but when at length he became conscious of the voice and touch of each, he only threw his arms round the neck of her that was next to him; he could neither sleep after being roused, nor keep awake from the effects of drunkenness; but was tossed about, half asleep and half awake, in the hands of centurions and harlots. Than this description nothing could be imagined more probable; nothing offered as a greater subject of reproach; nothing exhibited more vividly.
125. Nor can I omit to remark how much credit the authority of the speaker gives to his statement; an authority which we ought to secure chiefly by our general conduct, but also by our style of oratory; since the more grave and serious it is, the more weight it must give to our assertions. 126. We must especially avoid, therefore, in this part of our speech, all suspicion of artifice, (for nowhere is the judge more on his guard,) so that nothing may appear fictitious or studied, but that all may be thought to emanate rather from the cause than from the advocate. 127. But this manner our modern pleaders cannot tolerate; we think that our art is lost if it is not seen, whereas art, if it is seen, ceases to be art. We dote upon praise, and think it the great object of our labor; and thus betray to the judges what we wish to display to the by-standers.
128. There is also a sort of repetition of the statement, which is called by the Greeks επιδιηγησις: a thing more common in school declamations than in the forum. It was introduced with this object, that, as the statement of facts ought to be brief, the case might afterwards be set forth more fully and with more embellishment, in order to move indignation or pity. To this practice I think that we should have recourse but seldom, and never so as to repeat the whole order of circumstances; for we may effect the same object by recurring to particulars here and there. Let him, however, that shall determine on such repetition, touch but lightly on facts in his statement, and, contenting himself with relating what has been done, promise to explain more fully how it was done in the the proper place.
129. As to the commencement of a statement of facts, some think that it ought to be made with reference to some character, whom, if he is on our side, we are to extol, and, if adverse to us, to attack. This certainly is a very common mode of proceeding, because on each side there are persons between whom the dispute lies. 130. But they may sometimes be introduced with descriptive circumstances, when such a course is likely to be advantageous; as [Cic. Pro Cluent. c. 5], Aulus Cluentius Habitus, judges, was the father of my client, a man who held the highest position, not only in the municipal town of Larinum, in which he was born, but in all that country and neighborhood, for his merit, reputation, and respectability of birth; sometimes without them: as, when Quintus Ligarius had set out [Cic. pro Ligar. c. 1], etc.
131. Sometimes, however, we may commence with a fact, as Cicero in his speech for Tullius [a fragment of a lost speech]: Marcus Tullius possesses an estate inherited from his father in the territory of Thurium; or as Demosthenes [Pro Coron. p. 230, ed. Reisk] in behalf of Ctesiphon: For the Phocian war having broken out, etc. 132. As to the end of the statement, it is a matter of dispute with those who think that the statement itself should be brought down to the point where the question arises: as [Cic. pro Caecin. c. 8], These things having thus happened, Publius Dollabella the praetor published an edict, as is customary with regard to violence and men appearing in arms, without any exception, only that Aebutius should reinstate Caecina in the place from which he had expelled him. He said that he had reinstated him. A sum of money was deposited; and it is concerning this deposit that you must decide. This can always be done on the side of the prosecutor, but not always on that of the defendant.
I. In the order of things the confirmation follows the statement; for we must prove what we stated only that it might he proved. But before I proceed to treat of this part, I must make a few observations on the opinions of certain rhetoricians.
It is the custom of most speakers, when the order of facts is set forth, to make a digression to some pleasing and attractive moral topic, so as to secure as much favorable attention as possible from the audience. 2. This practice had its rise in the declamatory ostentation of the schools, and passed from thence into the forum, after causes began to be pleaded not to benefit the parties going to law, but to enable the advocates to make a display; from apprehension, I suppose, that if the stubbornness of argument should immediately follow the dry conciseness of narrative, (such as is often necessary,) and the gratification of eloquent diction should be too long withheld, their whole oration would appear cold and repulsive, 3. To this custom there is this objection, that the speakers indulge in it without making due distinction of causes, and what particular causes require, but as if such displays of eloquence were always expedient or even necessary; and in consequence they force into their digression matters taken from other parts to which they properly belong; so that many things must either be said over again, or, as they have been said in a place to which they had no right, cannot be said in their own.
4. I admit, however, that this sort of excursion may be advantageously introduced, not only after the statement of the case, but after the different questions in it, altogether or sometimes severally, when the subject requires or at least permits it; and I think that a speech is by such means greatly set off and embellished; provided that the dissertation aptly follows and adheres to what precedes, and is not forced in like a wedge, separating what was naturally united. 5. For no part of a speech ought to be more closely attached to any other part, than the proof is to the statement; unless indeed the digression be intended either as the end of the statement or as the beginning of the proof. There will therefore sometimes be room for it; for instance, if our statement, towards the conclusion, contains something very heinous, we may enlarge upon it, as if our indignation, like our breath, must necessarily have vent. 6. This however ought to be done only when the matter does not admit of doubt; else it is of more importance to make your charge true than atrocious; because the enormity of an accusation is in favor of the accused as long as it remains unproved, for belief in the commission of a heinous crime is extremely difficult.
7. A digression may also be made with advantage, if, for example, when you have spoken of services rendered to the opposite party, you proceed to inveigh against ingratitude; or if, when you have set forth a variety of charges in your statement, you show how much danger in consequence threatens yourself. 8. But all these must be signified briefly; for the judge, when he has learned the order of the facts, is impatient for the proof of them, and desires as soon as possible to settle his opinion. You must be cautious, also, that your exposition of the case be not forgotten, through the attention of the judge being turned to something else, or fatigued with useless delay.
9. But though such digression is not always a necessary sequel to a statement of facts, it is yet frequently a useful preparation for the consideration of the question; for instance, if the case appears, at first sight, unfavorable to us; if we have to uphold a severe law; if we enforce penal inflictions; as there will then be room, as it were, for a second exordium, to prepare the judge for our proofs, or to soothe or excite him; and this may be done the more freely and forcibly in this place, as the case is already known to him. 10. With these lenitives, so to speak, we may soften whatever is offensively hard in our statement, that the ears of the judge may the more readily admit what we may have to say afterwards, and that he may not be averse to concede us justice; for judges are not easily convinced of anything against their will. 11. On these occasions, however, the disposition of the judge must also be ascertained, that we may know whether he is more inclined to law or to equity; for according to his inclination our representations will be more or less necessary.
The same subject may also serve as a kind of peroration
after the question. 12. This part the Greeks call the
the Latins the egressus or egressio. But such sallies,
as I remarked, are of several kinds, and may be directed to
different subjects from any part of the cause; as eulogies
of men and places, descriptions of countries, recitals of occurrences
true or fictitious.13. Of which sort, in the pleadings of
Cicero against Verres, are the praises of Sicily, and the rape of
Proserpine [III. 7, 27]; in his speech for Caius Cornelius
[of this speech only some fragments remain, which have
been preserved with the commentary of Asconius Pedianus. "Caius Cornelius,"
says Asconius, "when tribune of the people, after incurring the displeasure of the senate by the proposal of certain laws, proposed
14. As to the definition of the παρεκβασις, it is, in my opinion, a dissertation on any subject relating to the interest of the cause, digressing from the order of facts. I do not see, therefore, why they assign it to that part of a speech, above all others, which immediately follows the statement of the case, any more than why they think that name belongs to a digression only when something is to be stated in it, as a speech may swerve from the right path in so many ways. 15. For whatever goes beyond those five parts of a speech which we have specified, is a digression, whether it be an expression of indignation, pity, detestation, reproach, apology, conciliation, or reply to invective.
Similarly digressive is everything that does not lie within the
question; all amplification, extenuation, and excitement of the
passions; all those moral observations concerning luxury, avarice, religion, duty, which contribute so much to the agreeableness and ornament of a speech, but which, however, as they
are attached to cognate subjects, and naturally cohere with them,
do not appear to be digressions. 16. But there are numbers of
remarks introduced into matters that have no connection with
them, remarks by which the judge is excited, admonished, appeased, entreated, or commended. Instances of them are innumerable; some we carry with us ready prepared; some we utter
on the spur of the moment, or from necessity; if, for instance,
anything extraordinary occurs while we are speaking, as an
interruption, the sudden arrival of any person, or a disturbance.
17. From such a cause Cicero was obliged to make a digression
in his exordium, when he was speaking for Milo, as appears
from the short speech [this was the speech that he
really delivered on
behalf of Milo, and which was extant in the time of Asconius Pedianus,
having been taken down on the occasion. The more elaborate speech,
1. There are some writers who place the proposition after the statement of facts, as a division of a speech on any matter for judgment. To this notion I have already replied. In my opinion the commencement of any proof is a proposition, which may be advanced not only in stating the principal question, but sometimes even to introduce particular arguments, especially those which are called επιχειρηματα. 2. But I shall now speak of the former [that which concerns the principal question, or state of the cause] kind. It is not always necessary to use it; for sometimes what the point in question is, is sufficiently manifest without any proposition whatever; for instance, if the statements of facts ends where the question begins; so that that which in arguments is commonly the recapitulation, is sometimes immediately subjoined to the statement of the case: These things [Cic. pro Mil. c. 11] occurred, judges, just as I have related them; the lier-in-wait was cut off: violence was overcome by violence; or rather audacity was subdued by valor.
3. But at times it is extremely useful; especially when the fact cannot be denied, and the question is about the definition: as, in pleading for him who took the money of a private person from a temple, you would say, The consideration is about sacrilege; it is concerning sacrilege that you have to decide; so that the judge may understand that his only duty is to ascertain whether that which is charged against the accused is sacrilege. 4. It is also of use in causes that are obscure or complex, not only that they may be rendered more lucid, but also, occasionally, that they may be more striking. A proposition will produce this effect, if there be immediately subjoined to it something that may support our pleading: as, A law has been made expressly, that whatever foreigner mounts the wall is to be punished with death; that you are a foreigner is certain; that you mounted the wall there is no doubt; what remains, then, but that you undergo the penalty? For such a proposition enforces a confession from the opposite party, and prevents, in a great measure, delay in giving judgment, not only explaining the question, but supporting it.
5. Propositions are single, double, or complex; a distinction which results from more than one cause; for several charges may be combined, as when Socrates was accused of corrupting the youth and introducing new superstitions; or one charge may be established by several proofs, as when it was alleged against Aeschines that he had acted dishonestly in his embassy, because he had spoken falsely; because he had done nothing in conformity with the directions given him; because he had tarried; because he had accepted presents. 6. The defense may also contain several propositions; as, in an action to recover a debt it may be said. You have no right demand it; for it was not in your power to become an agent [he that was infamia notatus could not be a procurator]; nor had he, in whose name you act, a right to have an agent; nor are you the heir of him from whom I am said to have borrowed; nor was I indebted to him. 7. Such examples maybe multiplied at pleasure; but it is sufficient to have pointed out that such is the case. If these allegations are stated singly, with proofs subjoined, they are so many distinct propositions; if they are combined, they come under the head of partition. [Partition, with Quintilian, is not properly a portion of the pleading, but an appendix to the proofs, or preparation for them.]
8. A proposition is sometimes, also, entirely bare, as is generally the case in conjectural causes: I accuse of murder; I charge with theft; sometimes it is accompanied with a reason; as, Caius Cornelius has been guilty of treason against the dignity of the tribunate; for he himself, when tribune of the people, read his own law before the public assembly [contrary to the custom, which was, that the praeco should recite the law, the scriba supplying him with the words]. The proposition which we bring forward, too, is sometimes our own; as, I accuse this man of adultery; sometimes that of our adversary; as, The charge against me is that of adultery; sometimes affecting both parties; as, The question between my opponent and me is, which of the two is the nearer of kin to a person who has died intestate. Sometimes, moreover, we may couple opposite propositions; as, I say thus, my adversary thus.
9. There is a way of speaking which has, at times, the force of a proposition, though it is in reality not one; when, after having made our statement of facts, we add, It is upon these points that you are to decide; this being a kind of admonition to the judge to direct his attention more earnestly to the case, and, being roused as by a touch, to observe that the statement is ended and the proof commenced; so that, as we enter upon the establishment of our allegations, he may commence, as it were, a new stage of listening.
1. Partition is the enumeration, according to their order, of our own propositions, or those of our adversary, or both; an enumeration which some think that we should always make, because, by its aid, the cause is rendered clearer, and the judge more observant and attentive, if he knows exactly on what point we are speaking, and on what points we intend to speak afterwards. 2. Some, on the other hand, think it dangerous to a speaker, for two reasons: that some things, on which we promise to speak, may escape our memory, and others, which we may have omitted in our specification, may occur to us; but nothing of this kind can happen except to one who is utterly deficient in ability, or one who brings to his pleading nothing settled or premeditated.
3. Otherwise, what method is so plain and clear as that of a proper division of our matter? for it follows nature as a guide, so as to be the greatest aid to the memory, to prevent us from straying from our proposed course in speaking. I cannot, therefore, agree with those who think that our partition should not exceed three propositions. Doubtless, if it be too multifarious, it will escape the recollection of the judge, and perplex his attention; but it is not to be confined, as by a law, to this or that number, when a cause may possibly require more.
4. There are other reasons why we should not always adopt a partition; first, because most observations please better when they appear to be conceived on the moment, and not to be brought from home, but to spring from the subject itself as we are discussing it; and hence the common expressions, I had almost forgotten, It had escaped me. You aptly remind me, are by no means ill received. If you lay down your course of proof before-hand, all pleasure of novelty is cut off from the sequel of your speech. 5. Sometimes, too, the judge must be misled, and wrought upon by various artifices, that he may suppose something else to be intended than what is really our object.
A proposition is sometimes startling, and a judge, if he sees it prematurely, dreads it as a patient dreads the surgeon's instrument before an operation is performed; but if, without any proposition being advanced before-hand, our observations come upon him when off his guard, and penetrate his mind, without any warning, when wrapt up, as it were, in itself, they will make him believe that which he would have distrusted if we had advanced it at first. 6. Occasionally, too, we should avoid not only the distinction of questions, but the mention of them altogether; the judge should have his feelings strongly moved, and his attention diverted; for to instruct is not the only duty of an orator; the power of eloquence is best shown in producing excitement. But, to such an effect, that minute carefulness in division, scrupulously separated into parts, at a time when we should endeavor to deprive the judge of the power of deciding against us, is directly opposed.
7. Are not arguments, also, that are light and weak when detached, often of great force in a body? Such arguments, accordingly, should rather be collected in a mass, and we should make a sally with them, as it were, upon the judge; an expedient which should rarely, however, be adopted, and only in case of necessity, when reasoning forces us to that which seems contrary to reasoning. 8. In addition, it is to be considered that there is, in every division of a case, some one point of more importance than the rest, and when the judge has become acquainted with it, he is apt to disdain other points as requiring no notice. Consequently, if more charges than one are to be established or overthrown, a partition is both advantageous and agreeable; in order that what we have to say on each head may distinctly be shown; but if we have to combat one charge by various arguments, it is needless.
9. Thus, if you should make such a division as this, I shall show that the accused, for whom I plead, is not of such a character that he can be thought to have committed murder; I shall show that he had no motive for committing murder; I shall show that at the time the murder was committed he was beyond the sea, all that you might prove before that which you place last, must necessarily appear useless; 10. for the judge is anxious to come to the strongest point of all; and if he is of a patient temper, he will silently hold the advocate bound to adhere to his stated division, or, if he be pressed with business, or be a man of some dignity, or of rude manners, will call upon him, with some reproachful remark, to adhere to it.
11. Some have been found, accordingly, to disapprove of Cicero's partition in his speech for Cluentius, where he promises, first of all, that he will show that no man was ever brought to judgment for greater crimes, or on stronger evidence, than Oppianicus; next, that the preliminary inquiries were conducted by those very judges by whom he was condemned; lastly, that the judgment was influenced by money, not on the side of Cluentius, but by the opposite party; such a division being needless, because, if the third point could be proved, there was no necessity for introducing the first or second. 12. On the other hand, no one will be so unjust or foolish as not to admit that Cicero adopted an excellent division in his pleading for Muraena: I perceive, judges, that of the whole accusation there are three heads; one concerned with censure of my client's morals; another with his competition for honors; and a third with charges against him for bribery; for he thus exhibits the cause with the utmost clearness, and does not render one head useless by another.
13. Most writers also hesitate respecting the following mode of defense: If I killed the man, I killed him justly; but I did not kill him; for "to what purpose," it is asked, "is the first proposition, if the second can be proved? they are at variance with one another, and while we advance both, credit is given to neither." This is indeed partly true; as we ought to rest on the second only, provided it be incontrovertible. 14. But if we have any apprehension as to the stronger, we may very well use the support of both; for different judges are moved by different arguments; and he who believes that the deed was done, may think it just; while he who will not allow it to be just, will perhaps feel convinced that it was not done. An unerring hand may be content with one javelin, but, by an uncertain hand, several should be thrown, in order that chance may have its influence.
16. Cicero, in defending Milo, shows admirably, in the first place, that Clodius was a lier-in-wait, and then adds, superabundantly as it were, that even if he had not been so, a citizen of such a character might have been slain with great merit and honor on the part of the slayer. 16. Yet I would not altogether condemn that order which I just now mentioned; because some arguments, though hard in themselves, may yet be of use to soften others that are to follow. The common saying, that we must ask more than what is just in order lo get what is just, is not without foundation in reason. 17. No one, however, is to take it in such a sense as to suppose that everything may be attempted; for the Greeks very wisely instruct us that what cannot be accomplished ought not to be tried [Diog. Laert. i. 70].
But whenever we adopt that double mode of defense of which I am speaking, we ought to make it our object to draw from the first head confirmation for the second; for he who might even have confessed without danger, may appear to have no motive for speaking falsely when be denies.
18. We must also take good care, whenever we suspect that the judge desires some other proof than that which we are advancing, to promise that we will fully and speedily afford him satisfaction on the point; especially if it affects our client's honor. 19. But it frequently happens that a cause, in itself far from honorable, is supported by the letter of the law; and, in this case, that the judges may not listen with unwillingness or disapprobation, they must be often reminded that the vindication of the integrity and honor of our client will follow; that they have but to wait a little, and allow us to proceed in order. 20. We may pretend also, occasionally, to say some things against the wish of our client, as Cicero does in his speech for Cluentius, in regard to the law respecting the duties of judges [this law respecting the bribery of judges, was directed against the senators, and Cluentius might have defended himself from the charge of bribery by saying that he was not a senator]; sometimes we may stop, as if we were interrupted by our client; sometimes we may address ourselves to him, and entreat him to allow us to take our own course.
21. Thus we shall gradually make an impression on the mind of the judge; who, while he trusts that the honor of our client is going to be vindicated, will listen with less reluctance to our more startling arguments; and, when he has received some impression from these, the maintenance of our client's honor will be the easier for us. Thus the two points will support each other; and the judge, trusting to our vindication of character, will be more attentive to the point of law, and, the point of law being established, will be more disposed to listen to our vindication of character.
22. But though partition is not always necessary, or even advantageous, yet, when it is seasonably adopted, it contributes great lucidity and agreeableness to a speech; for it not only causes what is stated to become clearer, by drawing certain particulars out of the crowd, as it were, and placing them full in the sight of the judges, but relieves the attention by fixing a definite termination to certain parts, as distances on a road, marked by inscribed stones, appear greatly to diminish the fatigue of travellers. 23. For it is a gratification to learn the measure of the labor which we have accomplished; and to know how much remains, encourages us to proceed with greater spirit to the conclusion; nothing, indeed, need seem long, when it is understood where the end is.
24. It was not without justice that Quintus Hortensius gained great praise for his exactness in division; though Cicero [Cic. Brut. c. 88; pro Quintio, c. 10; Divinat. in Coecil. c. 14] sometimes gently laughs at his partitions as being counted upon his fingers; for, as there is moderation requisite in gesture [this touch on gesture is in allusion to Hortensius's counting on his fingers], so we should, even with greater reason, avoid a too precise, and, as it were, jointed, division of our matter. 25. Minute sections, which, instead of being members, are bits, detract greatly from the weight of a speech; and those who are eager for the praise of such distinction, are apt, that they may be thought to have made nice and numerous divisions, to introduce what is wholly superfluous, and to cut asunder what is naturally united; they make their parts, not so much more in number, as less in bulk; and, after a thousand partitions, fall into that very obscurity against which partition was invented.
26. The proposition of a cause, whether divided or single, ought, whenever it can be introduced with advantage, to be, above all, plain and clear; (for what can be more disgraceful than to make that obscure which is adopted for no other purpose than that other parts may not be obscure?) and it should also be brief, and not loaded even with a single useless word; for we must remember that we have not to show what we are saying, but what we are going to say. 27. We must be cautious, too, that nothing may be deficient in it, and nothing redundant. The most frequent cause of redundancy is, when we divide into species what it would be sufficient to divide into genera; or when, after mentioning the genus, we add species to it, as if we should speak of virtue, justice, temperance, when justice and temperance are but species of virtue.
28. The first step in partition is, to distinguish what is admitted and what is disputed. Next, in regard to what is admitted, to distinguish what our adversary admits, and what we admit; and, in respect to what is disputed, to specify what our propositions are, and what those of our opponent. But what is most culpable, is, not to treat of your several points in the order in which you have arranged them.