pr.1. I have now, my dear Marcellus Victorius, completed the third book of the work which I have dedicated to you, and have nearly finished a quarter of my task, and am confronted with a motive for renewed diligence and increased anxiety as to the judgment it may be found to deserve. For up to this point we were merely discussing rhetoric between ourselves and, in the event of our system being regarded as inadequate by the world at large, were prepared to content ourselves with putting it into practice at home and to confine ourselves to the education of your son and mine.
pr.1. perfecto, Marcelle Victori, operis tibi dedicati tertio libro et iam quarta fere laboris parte transacta, nova insuper mihi diligentiae causa et altior sollicitudo, quale iudicium hominum emererer, accessit. enim velut studia inter nos conferebamus, et si parum nostra institutio probaretur a ceteris, contenti fore domestico usu videbamur, ut tui meique filii formare disciplinam satis putaremus.
pr.2. But now Domitianus Augustus has entrusted me with the education of his sister's grandsons, and I should be undeserving of the honour conferred upon me by such divine appreciation, if I were not to regard this distinction as the standard by which the greatness of my undertaking must be judged.
pr.2. vero mihi Domitianus Augustus sororis suae nepotum delegaverit curam, non satis honorem iudiciorum caelestium intelligam, nisi ex hoc oneris quoque magnitudinem metiar.
pr.3. For it is clearly my duty to spare no pains in moulding the character of my august pupils, that they may earn the deserved approval of the most righteous of censors. The same applies to their intellectual training, for I would not be found to have disappointed the expectations of a prince pre-eminent in eloquence as in all other virtues.
pr.3. enim mihi aut mores excolendi sit modus, ut eos non immerito probaverit sanctissimus censor? aut studia, ne fefellisse in iis videar principem ut in omnibus, ita in eloquentia quoque eminentissimum?
pr.4. But no one is surprised at the frequency with which the greatest poets invoke the Muses not merely at the commencement of their works, but even further on when they have reached some important passage and repeat their vows and utter fresh prayers for assistance. Assuredly therefore I may ask indulgence for doing what I omitted to do when I first entered on this task and calling to my aid all the gods and Himself before them all (for his power is unsurpassed and there is no deity that looks with such favour upon learning), beseeching him to inspire me with genius in proportion to the hopes that he has raised in me, to lend me propitious and ready aid and make me even such as he has believed me to be.
pr.4. nemo miratur poetas maximos saepe fecisse, ut non solum initiis operum suorum Musas invocarent, sed provecti quoque longius, cum ad aliquem graviorem venissent locum, repeterent vota et velut nova precatione uterentur, mihi quoque profecto poterit ignosci, si, quod initio, quo primum hanc materiam inchoavi, non feceram, nunc omnes in auxilium deos ipsumque in primis, quo neque praesentius aliud nec studiis magis propitium numen est, invocem, ut, quantum nobis exspectationis adiecit, tantum ingenii adspiret dexterque ac volens adsit et me qualem esse credidit faciat.
pr.6. And this, though the greatest, is not the only motive for this act of religious devotion, but my work is of such a nature that, as it proceeds, I am confronted with greater and more arduous obstacles than have yet faced me. For my next task is to explain the order to be followed in forensic causes, which present the utmost complication and variety. I must set forth the function of the exordium, the method of the statement of facts, the cogency of proofs, whether we are confirming our own assertions or refuting those of our opponents, and the force of the peroration, whether we have to refresh the memory of the judge by a brief recapitulation of the facts, or to do what is far more effective, stir his emotions.
pr.6. mihi religionis non haec sola ratio, quae maxima est, sed alioqui sic procedit ipsum opus, ut maiora praeteritis ac magis ardua sint, quae ingredior. enim, ut iudicialium causarum, quae sunt maxime variae ac multiplices, ordo explicetur: quod prooemii sit officium, quae ratio narrandi, quae probationum fides, seu proposita confirmamus sive contra dicta dissolvimus, quanta vis in perorando, seu reficienda brevi repetitione rerum memoria est iudicis sive adfectus (quod est longe potentissimum) commovendi.
pr.7. Some have preferred to give each of these points separate treatment, fearing that if they undertook them as a whole the burden would be greater than they could bear, and consequently have published several books on each individual point. I have ventured to treat them altogether and foresee such infinite labour that I feel weary at the very thought of the task I have undertaken. But I have set my hand to the plough and must not look back. My strength may fail me, but my courage must not fail.
pr.7. quibus partibus singulis quidam separatim scribere maluerunt velut onus totius corporis veriti, et sic quoque complures de una quaque earum libros ediderunt; quas ego omnes ausus contexere prope infinitum laborem prospicio et ipsa cogitatione suscepti muneris fatigor. durandum est, quia coepimus, et si viribus deficiemur, animo tamen perseverandum.
1.1. I. The commencement or exorditum as we call it in Latin is styled a proem by the Greeks. This seems to me a more appropriate name, because whereas we merely indicate that we are beginning our task, they clearly show that this portion is designed as an introduction to the subject on which the orator has to speak.
1.1. principium Latine vel exordium dicitur, maiore quadam ratione Graeci videntur προοίμιον nominasse, quia a nostris initium modo significatur, illi satis dare partem hanc esse ante ingressum rei de qua dicendum sit, ostendunt.
1.2. It may be because οἴμη means a tune, and players on the lyre have given the name of proem to the prelude which they perform to win the favour of the audience before entering upon the regular contest for the prize, that orators before beginning to plead make a few introductory remarks to win the indulgence of the judges.
1.2. sive propterea quod οἴμη cantus est et citharoedi pauca illa, quae, antequam legitimum certamen inchoent, emerendi favoris gratia canunt, prooemium cognominaverunt, oratores quoque ea quae, priusquam causam exordiantur, ad conciliandos sibi iudicum animos praeloquuntur eadem appellatione signarunt;
1.3. Or it may be because οἶμος in Greek means a way, that the practice has arisen of calling an introduction a proem. But in any case there can be no doubt that by proem we mean the portion of a speech addressed to the judge before he has begun to consider the actual case. And it is a mistaken practice which we adopt in the schools of always assuming in our exordia that the judge is already acquainted with the case.
1.3. sive, quod οἶμον iidem Graeci viam appellant, id quod ante ingressum rei ponitur sic vocare est institutum: certe prooemium est, quod apud iudicem dici, priusquam causam cognoverit, possit; vitioseque in scholis facimus, quod exordio semper sic utimur, quasi causam iudex iam noverit.
1.4. This form of licence arises from the fact that a sketch of the case is always given before actual declamation. Such kinds of exordia may, however, be employed in the courts, when a case comes on for the second time, but never or rarely on the first occasion, unless we are speaking before a judge who has knowledge of the case from some other source.
1.4. rei licentia ex hoc est, quod ante declamationem illa velut imago litis exponitur Sed in foro quoque contingere istud principiorum genus secundis actionibus potest; primis quidem raro unquam, nisi forte apud eum, cui res iam aliunde nota sit, dicimus.
1.5. The sole purpose of the exordium is to prepare our audience in such a way that they will be disposed to lend a ready ear to the rest of our speech. The majority of authors agree that this is best effected in three ways, by making the audience well-disposed, attentive and ready to receive instruction. I need hardly say that these aims have to be kept in view throughout the whole speech, but they are especially necessary at the commencement, when we gain admission to the mind of the judge in order to penetrate still further.
1.5. principii nulla alia est, quam ut auditorem, quo sit nobis in ceteris partibus accommodatior, praeparemus. fieri tribus maxime rebus inter auctores plurimos constat, si benevolum, attentum, docilem fecerimus, non quia ista non per totam actionem sint custodienda, sed quia initiis praecipue necessaria, per quae in animum iudicis, ut procedere ultra possimus, admittimur.
1.6. As regards good-will, we secure that either from persons connected with the case or from the case itself. Most writers have divided these persons into three classes, the plaintiff, the defendant and the judge.
1.6. aut a personis ducimus aut a causis accipimus. personarum non est, ut plerique crediderunt, triplex ratio, ex litigatore et adversario et iudice.
1.7. This classification is wrong, for the exordium may sometimes derive its conciliatory force from the person of the pleader. For although he may be modest and say little about himself, yet if he is believed to be a good man, this consideration will exercise the strongest influence at every point of the case. For thus he will have the good fortune to give the impression not so much that he is a zealous advocate as that he is an absolutely reliable witness. It is therefore pre-eminently desirable that he should be believed to have undertaken the case out of a sense of duty to a friend or relative, or even better, if the point can be made, by a sense of patriotism or at any rate some serious moral consideration. No doubt it is even more necessary for the parties themselves to create the impression that they have been forced to take legal action by some weighty and honourable reason or even by necessity.
1.7. exordium duci nonnunquam etiam ab actore causae solet. enim pauciora de se ipso dicit et parcius, plurimum tamen ad omnia momenti est in hoc positum, si vir bonus creditur. enim continget, ut non studium advocati videatur adferre sed paene testis fidem. in primis existimetur venisse ad agendum ductus officio vel cognationis vel amicitiae maximeque, si fieri poterit, reipublicae aut alicuius certe non mediocris exempli. sine dubio multo magis ipsis litigatoribus faciendum est, ut ad agendum magna atque honesta ratione aut etiam necessitate accessisse videantur.
1.8. But just as the authority of the speaker carries greatest weight, if his undertaking of the case is free from all suspicion of meanness, personal spite or ambition, so also we shall derive some silent support from representing that we are weak, unprepared, and no match for the powerful talents arrayed against us, a frequent trick in the exordia of Messala.
1.8. ut praecipua in hoc dicentis auctoritas, si omnis in subeundo negotio suspicio sordium aut odiorum aut ambitionis afuerit, ita quaedam in his quoque commendatio tacita, si nos infirmos, imparatos, impares agentium contra ingeniis dixerimus, qualia sunt pleraque Messalae prooemia.
1.9. For men have a natural prejudice in favour of those who are struggling against difficulties, and a scrupulous judge is always specially ready to listen to an advocate whom he does not suspect to have designs on his integrity. Hence arose the tendency of ancient orators to pretend to conceal their eloquence, a practice exceedingly unlike the ostentation of our own times.
1.9. enim naturalis favor pro laborantibus, et iudex religiosus libentissime patronum audit, quem iustitiae suae minime timet. illa veterum circa occultandam eloquentiam simulatio multum ab hac nostrorum temporum iactatione diversa.
1.10. It is also important to avoid giving the impression that we are abusive, malignant, proud or slanderous toward any individual or body of men, especially such as cannot be hurt without exciting the disapproval of the judges.
1.10. etiam, ne contumeliosi, maligni, superbi, maledici in quemquam hominem ordinemve videamur praecipueque eorum, qui laedi nisi adversa iudicum voluntate non possunt.
1.11. As to the judge, it would be folly for me to warn speakers not to say or even hint anything against him, but for the fact that such things do occur. Our opponent's advocate will sometimes provide us with material for our exordium: we may speak of him in honorific terms, pretending to fear his eloquence and influence with a view to rendering them suspect to the judge, or occasionally, though very seldom, we may abuse him, as Asinius did in his speech on behalf of the heirs of Urbinia, where he includes among the proofs of the weakness of the plaintiff's case the fact that he has secured Labienus as his advocate.
1.11. in iudicem ne quid dicatur non modo palam sed quod omnino intelligi possit, stultum erat monere, nisi fieret. partis adversae patronus dabit exordio materiam, interim cum honore, si eloquentiam eius et gratiam nos timere fingendo, ut ea suspecta sint iudici, fecerimus, interim per contumeliam, sed hoc perquam raro, ut Asinius pro Urbiniae heredibus Labienum adversarii patronum inter argumenta causae malae posuit. Negat haec esse prooemia Cornelius Celsus, quia sint extra litem.
1.12. Cornelius Celsus denies that such remarks can be considered as belonging to the exordium on the ground that they are irrelevant to the actual case. Personally I prefer to follow the authority of the greatest orators, and hold that whatever concerns the pleader is relevant to the case, since it is natural that the judges should give readier credence to those to whom they find it a pleasure to listen.
1.12. ego cum auctoritate summorum oratorum magis ducor, tum pertinere ad causam puto quidquid ad dicentem pertinet, cum sit naturale, ut iudices iis, quos libentius audiunt, etiam facilius credant.
1.13. The character of our client himself may, too, be treated in various ways: we may emphasise his worth or we may commend his weakness to the protection of the court. Sometimes it is desirable to set forth his merits, when the speaker will be less hampered by modesty than if he were praising his own. Sex, age and situation are also important considerations, as for instance when women, old men or wards are pleading in the character of wives, parents or children.
1.13. autem litigatoris persona tractanda varie est. tum dignitas eius adlegatur, tum commendatur infirmitas. contingit relatio meritorum, de quibus verecundius dicendum erit sua quam aliena laudanti. agit sexus, aetas, condicio, ut in feminis, senibus, pupillis, liberos, parentes, coniuges adlegantibus. sola rectum quoque iudicem inclinat miseratio.
1.14. For pity alone may move even a strict judge. These points, however, should only be lightly touched upon in the exordium, not run to death. As regards our opponent he is generally attacked on similar lines, but with the method reversed. For power is generally attended by envy, abject meanness by contempt, guilt and baseness by hatred, three emotions which are powerful factors to alienate the good-will of the judges.
1.14. tamen haec prooemio, non consumenda. vero persona prope iisdem omnibus, sed e contrario ductis impugnari solet. et potentes sequitur invidia et humiles abiectosque contemptus et turpes ac nocentes odium, quae tria sunt ad alienandos iudicum animos potentissima.
1.15. But a simple statement will not suffice, for even the uneducated are capable of that: most of the points will require exaggeration or extenuation as expediency may demand: the method of treatment belongs to the orator, the points themselves belong to the case. We shall win the good-will of the judge not merely by praising him, which must be done with tact and is an artifice common to both parties, but by linking his praise to the furtherance of our own case. For instance, in pleading for a man of good birth we shall appeal to his own high rank, in speaking for the lowly we shall lay stress on his sense of justice, on his pity in pleading the cause of misfortune, and on his severity when we champion the victims of wrong, and so on.
1.15. haec dicere sat est, quod datur etiam imperitis; pleraque augenda aut minuenda, ut expediet. enim oratoris est, illa causae. conciliabimus nobis non tantum laudando eum, quod et fieri cum modo debet et est tamen parti utrique commune, sed si laudem eius ad utilitatem causae nostrae coniunxerimus, ut adlegemus pro honestis dignitatem illi suam, pro humilibus iustitiam, pro infelicibus misericordiam, pro laesis severitatem et similiter cetera.
1.17. I should also wish, if possible, to be acquainted with the character of the judge. For it will be desirable to enlist their temperaments in the service of our cause, where they are such as are like to be useful, or to mollify them, if they are like to prove adverse, just according as they are harsh, gentle, cheerful, grave, stern, or easy-going. It will, however, sometimes happen that the judge is hostile to us and friendly to our adversaries.
1.17. quoque, si fieri potest, iudicis velim nosse. prout asperi, lenes, iucundi, graves, duri, remissi erunt, aut adsumere in causam naturas eorum, qua competent, aut mitigare, qua repugnabunt, oportebit. autem interim hoc quoque, ut aut nobis inimicus aut adversariis sit amicus qui iudicat;
1.18. Such cases demand the attention of both parties and I am not sure that the party favoured by the judge does not require to handle the situation with even more care than his opponent. For perverse judges have sometimes a preposterous tendency to give judgment against their friends or in favour of those with whom they have a quarrel, and of committing injustice merely to avoid the appearance of partiality.
1.18. quae res utrique parti tractanda est ac nescio an etiam ei magis, in quam videatur propensior. enim nonnunquam pravis hic ambitus adversus amicos aut pro iis, quibuscum simultates gerant, pronuntiandi faciendique iniuste, ne fecisse videantur.
1.19. Again some have been judges in cases where their own interests were involved. I note, for instance, in the books of observations published by Septimius that Cicero appeared in such a case, while I myself, when I appeared on behalf of Queen Berenice, actually pleaded before her. In such cases we must be guided by the same principles that I have laid down above. The opponent of the judge will emphasise his confidence in the justice of his client's cause, while the advocate of his interests will express the fear that the judge may be influenced by a quixotic delicacy.
1.19. etiam quidam rerum suarum iudices. et in libris Observationum a Septimio editis adfuisse Ciceronem tali causae invenio, et ego pro regina Berenice apud ipsam eam causam dixi. hic quoque superioribus ratio est. enim fiduciam partis suae iactat, patronus timet cognoscentis verecundiam.
1.20. Further, if the judge is thought to have come into court with a prejudice in favour of one side, we must try to remove or strengthen that prejudice as circumstances may demand. Again occasionally we shall have to calm the judges' fears, as Cicero does in the pro Milone, where he strives to persuade them not to think that Pompey's soldiers have been stationed in the court as a threat to themselves. Or it may be necessary to frighten them, as Cicero does in the Verrines.
1.20. detrahenda vel confirmanda opinion, praecipue si quam domo videbitur iudex attulisse. etiam nonnunquam est amovendus, ut Cicero pro Milone, ne arma Pompeii disposita contra se putarent, laboravit; nonnunquam adhibendus, ut idem in Verrem facit.
1.21. There are two ways of bringing fear to bear upon the judges. The commonest and most popular is to threaten them with the displeasure of the Roman people or the transference of the juries to another class; the second is somewhat brutal and is rarely employed, and consists in threatening them with a prosecution for bribery: this is a method which is fairly safe with a large body of judges, since it checks the bad and pleases the good members of the jury, but I should never recommend its employment with a single judge except in the very last resort.
1.21. adhibendi modus alter ille frequens et favorabilis: ne male sentiat populus Romanus, ne iudicia transferantur; alter autem asper et rarus, quo minatur corruptis accusationem, et id quidem in consilio ampliore utcunque tutius; nam et mali inhibentur et boni gaudent; apud singulos vero nunquam suaserim, nisi defecerint omnia.
1.22. But if necessity should drive us to such a course, we must remember that such threats do not come under the art of oratory, any more than appeals from the judgment of the court (though that is often useful), or the indictment of the judge before he gives his decision. For even one who is no orator can threaten or lay an information.
1.22. si necessitas exigit, non erit iam ex arte oratoria, non magis quam appellare, etiamsi id quoque saepe utile est, aut, antequam pronuntiet, reum facere; nam et minari et deferre etiam non orator potest.
1.23. If the case affords us the means of winning the favour of the judge, it is important that the points which seem most likely to serve to our purpose should be selected for introduction into the exordium. On this subject Verginius falls into error, for he asserts that Theodorus lays down that some one reflexion on each individual question that is involved by the case should be introduced into the exordium. As a matter of fact Theodorus does not say this, but merely that the judge should be prepared for the most important of the questions that are to be raised.
1.23. causa conciliandi nobis iudicis materiam dabit, ex hac potissimum aliqua in usum principii, quae maxime favorabilia videbuntur, decerpi oportebit. Quo in loco Verginius fallitur, qui Theodoro placere tradit, ut ex singulis quaestionibus singuli sensus in prooemium conferantur.
1.24. There is nothing to object to in this rule, save that he would make it of universal application, whereas it is not possible with every question nor desirable in every case. For instance, seeing that the plaintiff's advocate speaks first, and that till he has spoken the judge is ignorant of the nature of the dispute, how is it possible for us to introduce reflexions relating to all the questions involved? The facts of the case must be stated before that can be done. We may grant that some questions may be mentioned, for that will sometimes be absolutely necessary; but can we introduce all the most important questions, or in other words the whole case? If we do we shall have completed our statement of facts within the limits of the exordium. Again if, as often happens, the case is somewhat difficult, surely we should seek to win the good-will of the judge by other portions of our speech sooner than thrust the main questions upon him in all their naked harshness before we have done anything to secure his favour.
1.24. ille non hoc dicit, sed ad potentissimas quaestiones iudicem praeparandum; in quo vitii nihil erat, nisi in universum id praeciperet, quod nec omnis quaestio patitur nec omnis causa desiderat. protinus a petitore primo loco, dum ignota iudici lis est, quomodo ex quaestionibus ducemus sententias? nimirum res erunt indicandae prius. aliquas (nam id exiget ratio nonnunquam); etiamne potentissimas omnes, id est totam causam? sic erit in prooemio peracta narratio.
1.25. If the main questions ought always to be treated at the beginning of a speech, we might dispense with the exordium. We shall then occasionally introduce certain points from the main questions into the exordium, which will exercise a valuable influence in winning the judge to regard us with favour. It is not necessary to enumerate the points which are likely to gain us such favour, because they will be obvious as soon as we have acquainted ourselves with the circumstances of each dispute, while in view of the infinite variety presented by cases it is out of the question to specify them here.
1.25. vero? si, ut frequenter accidit, paulo est durior causa, non benevolentia iudicis petenda ex aliis partibus erit, sed non ante conciliato eius animo nuda quaestionum committetur asperitas? si recte semper initio dicendi tractarentur, nihil prooemio opus esset. ergo nonnunquam, quae erunt ad conciliandum nobis iudicem potentissima, non inutiliter interim ex quaestionibus in exordio locabuntur. sint porro in causis favorabilia, enumerare non est necesse, quia et manifesta erunt cognita cuiusque controversiae condicione et omnia colligi in tanta litium varietate non possunt.
1.27. Just, however, as it is in the interest of our case to note and amplify these points, so it is also to rebut or at any rate lessen the force of anything that is damaging to our case. Again our case may justify an appeal to compassion with regard to what we have suffered in the past or are likely to suffer.
1.27. autem haec invenire et augere, ita quod laedit aut omnino repellere aut certe minuere ex causa est. quoque aliquando ex eadem venit, sive quid passi sumus grave sive passuri.
1.28. For I do not share the opinion held by some, that the exordium and the peroration are to be distinguished by the fact that the latter deals with the past, the former with the future. Rather I hold that the difference between them is this: in our opening any preliminary appeal to the compassion of the judge must be made sparingly and with restraint, while in the peroration we may give full rein to our emotions, place fictitious speeches in the mouths of our characters, call the dead to life, and produce the wife or children of the accused in court, practices which are less usual in exordia.
1.28. enim sum in hac opinione, qua quidam, ut eo distare prooemium ab epilogo credam, quod in hoc praeterita, in illo futura dicantur, sed quod in ingressu parcius et modestius praetemptanda sit iudicis misericordia, in epilogo vero liceat totos effundere adfectus et fictam orationem induere personis et defunctos excitare et pignora reorum producere; quae minus in exordiis sunt usitata.
1.29. But it is the function of the exordium not merely to excite the feelings to which I have alluded, but to do all that is possible to show that our opponent's case is not deserving of them. It is advantageous to create the impression not merely that our fate will be deserving of pity, if we lose, but that our adversary will be swollen with outrageous insolence if he prove successful.
1.29. haec, quae supra dixi, non movere tantum, verum ex diverso amoliri quoque prooemio opus est. autem nostrum miserabilem, si vincamur, exitum, ita adversariorum superbum, si vicerint, utile est credi.
1.30. But exordia are often drawn from matters which do not, strictly speaking, concern either cases or the persons involved, though not unrelated to either. In such relation to persons stand not only wives and children of whom I have just spoken, but also relations, friends, and at times districts and states together with anything else that is like to suffer injury from the fall of the client whom we defend.
1.30. ex iis quoque, quae non sunt personarum nec causarum, verum adiuncta personis et causis, duci prooemia solent. applicantur non pignora modo, de quibus supra dixi, sed propinquitates, amicitiae, interim regiones etiam civitatesque, et si quid aliud eius quem defendimus casu laedi potest.
1.31. As regards external circumstances which have a bearing on the case, I may mention time, which is introduced in the exordium of the pro Caelio, place (in the pro Deiotaro ), the appearance of the court (in the pro Milone ), public opinion (in the Verrines ), and finally, as I cannot mention all, the ill-repute of the law courts and the popular expectation excited by the case. None of these actually belong to the case, but all have some bearing on it.
1.31. causam extra pertinent tempus, unde principium pro Caelio; locus, unde pro Deiotaro; habitus, unde pro Milone; opinio, unde in Verrem; deinceps, ne omnia enumerem, infamia iudiciorum, exspectatio vulgi; nihil enim horum in causa est, ad causam tamen pertinent.
1.32. Theophrastus adds that the exordium may be drawn from the speech of one's opponent, as that of the pro Ctesiphonte of Demosthenes appears to be, where he asks that he may be allowed to speak as he pleases and not to be restricted to the form laid down by the accuser in his speech.
1.32. Theophrastus ab oratione principium, quale videtur esse Demosthenis pro Ctesiphonte, ut sibi dicere suo potius arbitrio liceat rogantis quam eo modo, quem actione accusator praescripserit.
1.33. Confidence often labours under the disadvantage of being regarded as arrogance. But there are certain tricks for acquiring good-will, which though almost universal, are by no means to be neglected, if only to prevent their being first employed against ourselves. I refer to rhetorical expressions of wishing, detestation, entreaty, or anxiety. For it keeps the judge's attention on the alert, if he is led to think the case novel, important, scandalous, or likely to set a precedent, still more if he is excited by concern for himself or the common weal, when his mind must be stirred by hope, fear, admonition, entreaty and even by falsehood, if it seems to us that it is likely to advance our case.
1.33. ipsa solet opinione arrogantiae laborare. favorem et ilia paene communia non tamen omittenda, vel ideo ne occupentur, optare, abominari, rogare, sollicitum agere; quia plerumque attentum iudicem facit, si res agi videtur nova, magna, atrox, pertinens ad exemplum, praecipue tamen, si index aut sua vice aut reipublicae commovetur, cuius animus spe, metu, admonitione, precibus, vanitate denique, si id profuturum credimus, agitandus est.
1.34. We shall also find it a useful device for wakening the attention of our audience to create the impression that we shall not keep them long and intend to stick closely to the point. The mere fact of such attention undoubtedly makes the judge ready to receive instruction from us, but we shall contribute still more to this effect if we give a brief and lucid summary of the case which he has to try; in so doing we shall be following the method adopted by Homer and Virgil at the beginning of their poems.
1.34. et illa excitandis ad audiendum non inutilia, si nos neque diu moraturos neque extra causam dicturos existiment. sine dubio et haec ipsa praestat attentio; sed et illud, si breviter et dilucide summam rei, de qua cognoscere debeat, indicaverimus, quod Homerus atque Vergilius operum suorum principiis faciunt.
1.35. For as regards the length of the exordium, it should propound rather than expound, and should not describe how each thing occurred, but simply indicate the points on which the orator proposes to speak. I do not think a better example of this can be found than the exordium to the pro Cluentio of Cicero.
1.35. is eius rei modus est, ut propositioni similior sit quam expositioni, nec quomodo quidque sit actum, sed de quibus dicturus sit orator ostendat. video, quod huius rei possit apud oratores reperiri melius exemplum quam Ciceronis pro A.
1.36. “I have noted, judges, that the speech for the prosecution was divided into two parts: of these, the first seemed to rest and in the main to rely on the odium, now inveterate, arising from the trial before Junius, while the other appeared to touch, merely as a matter of form, and with a certain timidity and diffidence, on the question of the charge of poisoning, though it is to try this point that the present court has been constituted in accordance with the law.” All this, however, is easier for the defender than the prosecutor, since the latter has merely to remind the judge, while the former has to instruct him.
1.36. Cluentio:, iudices, omnem accusatoris orationem in duas divisam esse pares; quarum altera mihi inniti et magnopere confidere videbatur invidia iam inveterata iudicii Iuniani, altera tantum modo consuetudinis causa timide et diffidenter attingere rationem veneficii criminum, qua de re lege est haec quaestio constituta. tamen totum respondenti facilius est quam proponenti, quia hic admonendus iudex, illic docendus est.
1.37. Nor shall any authority, however great, induce me to abandon my opinion that it is always desirable to render the judge attentive and ready to receive instruction. I am well aware that those who disagree with me urge that it is to the advantage of a bad case that its nature should not be understood; but such lack of understanding arises not from inattention on the part of the judge, but from his being deceived.
1.37. me quanquam magni auctores in hoc duxerint, ut non semper facere attentum ac docilem iudicem velim; non quia nesciam, id quod ab illis dicitur, esse pro mala causa, qualis ea sit non intelligi, verum quia istud non negligentia iudicis contingit, sed errore.
1.38. Our opponent has spoken and perhaps convinced him; we must alter his opinion, and this we cannot do unless we render him attentive to what we have to say and ready to be instructed. What are we to do then? I agree to the view that we should cut down, depreciate and deride some of our opponent's arguments with a view to lessening the attention shown him by the judge, as Cicero did in the pro Ligario.
1.38. enim adversarius et fortasse persuasit; nobis opus est eius diversa opinione, quae mutari non potest, nisi illi fecerimus ad ea quae dicemus docile et intentum. ergo est? quaedam et levanda et quasi contemnenda esse consentio ad remittendam intentionem iudicis, quam adversario praestat, ut fecit pro Ligario Cicero.
1.39. For what was the purpose of Cicero's irony save that Caesar should be induced to regard the case as presenting only old familiar features and consequently to give it less attention? What was his purpose in the pro Caelio save to make the case seem far more trivial than had been anticipated? It is, however, obvious that of the rules which I have laid down, some will be applicable to one case and some to another.
1.39. enim agebat aliud ironia illa, quam ut Caesar minus se in rem tanquam non novam intenderet? pro Caelio, quam ut res exspectatione minor videretur? ex iis, quae proposuimus, aliud in alio genere causae desiderari palam est.
1.40. The majority of writers consider that there are five kinds of causes, the honourable, the mean, the doubtful or ambiguous, the extraordinary and the obscure, or as they are called in Greek, ἔνδοξον, ἄδοξον, ἀμφίδοξον, παράδοξον and δυσπαρακολούθητον. To these some would add a sixth, the scandalous, which some again include under the heading of the mean, others under the extraordinary.
1.40. porro causarum plurimi quinque fecerunt, honestum, humile, dubium vel anceps, admirabile, obscurum: id est ἔνδοξον, ἄδοξον, ἀμφίδοξον, παράδοξον, δυσπαρακολούθητον. quibus recte videtur adiici turpe, quod alii humili, alii admirabili subiiciunt.
1.41. The latter name is given to cases which are contrary to ordinary expectation. In ambiguous cases it is specially important to secure the good-will of the judge, in the obscure to render him ready to receive instruction, in the mean to excite his attention. As regards the honourable the very nature of the case is sufficient to win the approval of the judge; in the scandalous and extraordinary some kind of palliation is required.
1.41. autem vocant, quod est praeter opinionem hominum constitutum. ancipiti maxime benevolum iudicem, in obscuro docilem, in humili attentum parare debemus. honestum quidem ad conciliationem satis per se valet, admirabili et turpi remediis opus est.
1.42. Some therefore divide the exordium into two parts, the introduction and the insinuation, making the former contain a direct appeal to the good-will and attention of the judge. But as this is impossible in scandalous cases, they would have the orator on such occasions insinuate himself little by little into the minds of his judges, especially when the features of the case which meet the eye are discreditable, or because the subject is disgraceful or such as to meet with popular disapproval, or again if the outward circumstances of the case are such as to handicap it or excite odium (as for instance when a patron appears against a client or a father against a son), or pity (as when our opponent is an old or blind man or a child).
1.42. quidam exordium in duas dividunt partes, principium et insinuationem, ut sit in principiis recta benevolentiae et attentionis postulatio; quae quia esse in turpi causae genere non possit, insinuatio surrepat animis, maxime ubi frons causae non satis honesta est, vel quia res sit improba vel quia hominibus parum probetur, aut si facie quoque ipsa premitur vel invidiosa consistentis ex diverso patroni aut patris vel miserabili senis, caeci, infantis.
1.43. To save the situation the rhetoricians lay down a number of rules at quite inordinate length: they invent fictitious cases and treat them realistically on the lines which would be followed in actual pleading. But these peculiar circumstances arise from such a variety of causes as to render classification by species impossible, and their enumeration save under the most general heads would be interminable.
1.43. quidem quibus adversus haec modis sit medendum, verbosius tradunt materiasque sibi ipsi fingunt et ad morem actionum persequuntur; sed hae cum oriantur ex causis, quarum species consequi omnes non possumus, nisi generaliter comprehenduntur, in infinitum sunt extrahendae.
1.44. The line to be adopted will therefore depend on the individual nature of each case. As a general principle, however, I should advise the avoidance of points which tell against us and concentrate on those which are likely to be of service. If the case itself is weak, we may derive help from the character of our client; if his character is doubtful, we may find salvation in the nature of the case. If both are hopeless, we must look out for something that will damage our opponent. For though it is desirable to secure as much positive good-will as possible, the next best thing is to incur the minimum of actual dislike.
1.44. singulis consilium ex propria ratione nascetur. in universum praeceperim, ut ab his quae laedunt ad ea quae prosunt refugiamus. causa laborabimus, persona subveniat; si persona, causa; si nihil quod nos adiuvet erit, quaeramus quid adversarium laedat; nam ut optabile est plus favoris mereri, sic proximum odii minus.
1.45. Where we cannot deny the truth of facts that are urged against us, we must try to show that their significance has been exaggerated or that the purpose of the act was not what is alleged or that the facts are irrelevant or that what was done may be atoned for by penitence or has already been sufficiently punished. It is consequently easier for an advocate to put forward such pleas than for his client, since the former can praise without laying himself open to the charge of arrogance and may sometimes even reprove him with advantage to the case.
1.45. iis, quae negari non potuerint, elaborandum, ut aut minora quam dictum est aut alia mente facta aut nihil ad praesentem quaestionem pertinere aut emendari posse paenitentia aut satis iam punita videantur. agere advocato quam litigatori facilius, quia et laudat sine arrogantiae crimine et aliquando utiliter etiam reprehendere potest.
1.46. At times, like Cicero in his defence of Rabirius Postumus, he will pretend that he himself is strongly moved, in order to win the ear of the judge and to give the impression of one who is absolutely convinced of the truth of his cause, that so his statements may find all the readier credence whether he defends or denies the actions attributed to his client. Consequently it is of the first importance, wherever the alternative is open to us, to consider whether we are to adopt the character of a party to the suit or of an advocate. In the schools, of course, we have a free choice in the matter, but it is only on rare occasions that a man is capable of pleading his own case in the actual courts.
1.46. se quoque moveri interim finget, ut pro Rabirio Postumo Cicero, dum aditum sibi ad aures faciat et auctoritatem induat vera sentientis, quo magis credatur vel defendenti eadem vel neganti. hoc primum intuebimur, litigatoris an advocati persona sit utendum, quotiens utrumque fieri potest; nam id in schola liberum est, in foro rarum, ut sit idoneus suae rei quisque defensor.
1.47. When we are going to deliver a declamation on a theme that turns largely on its emotional features, we must give it a dramatic character suited to the persons concerned. For emotions are not transferable at will, nor can we give the same forcible expression to another man's emotions that we should give to our own.
1.47. autem maxime positas in adfectibus causas propriis personis debet induere. sunt enim, qui mandari non possunt, nec eadem vi profertur alieni animi qua sui motus.
1.48. The circumstances which call for insinuation arise also in cases where the pleading of our opponent has made a powerful impression on the minds of the judges, or where the audience whom we have to address are tired. The first difficulty we shall evade by promising to produce our own proofs and by eluding the arguments of our opponents, the second by holding out hopes that we shall be brief and by the methods already mentioned for capturing the attention of the judges.
1.48. etiam de causis insinuatione videtur opus esse, si adversarii actio iudicum animos occupavit, si dicendum apud fatigatos est; quorum alterum promittendo nostras probationes et adversas eludendo vitabimus, alterum et spe brevitatis et iis, quibus attentum fieri iudicem docuimus.
1.49. Again an opportune display of wit will often restore their flagging spirits and we may alleviate their boredom by the introduction of entertaining matter derived from any source that may be available. It will also be found advantageous to anticipate the objections that may be raised by our opponent, as Cicero does when he says “I know that some persons are surprised that one, who for such a number of years has defended so many and attacked none, should have come forward as the accuser of Verres,” he then goes on to show that the accusation which he has undertaken is really a defence of the allies, an artifice known as πρόληψις or anticipation.
1.49. urbanitas opportuna reficit animos et undecunque petita iudicis voluptas levat taedium. inutilis etiam est ratio occupandi quae videntur obstare, ut Cicero dicit, scire se mirari quosdam, quod is, qui per tot annos defenderit multos, laeserit neminem, ad accusandum Verrem descenderit; deinde ostendit, hanc ipsam esse sociorum defensionem; quod schema πρόλημψις dicitur.
1.50. Although this is at times a useful device, some of our declaimers employ it on practically every occasion, on the assumption that one should always start with the order thus reversed. The adherents of Apollodorus reject the view stated above to the effect that there are only three respects in which the mind of the judge requires to be prepared, and enumerate many others, relating to the character of the judge, to opinions regarding matters which though outside the case have still some bearing on it, to the opinion current as to the case itself, and so on ad infinitum: to these they add others relating to the elements of which every dispute is composed, such as persons, deeds, words, motives, time and place, occasions and the like. Such views are, I admit, perfectly correct, but are covered by one or other of the three classes which I have mentioned.
1.50. cum sit utile aliquando, nunc a declamatoribus quibusdam paene semper adsumitur, qui fas non putant nisi a contrario incipere. Apollodorum secuti tris esse, de quibus supra diximus, praeparandi iudicis partes; sed multas species enumerant, ut ex moribus iudicis, ex opinionibus ad causam extra pertinentibus, ex opinione de ipsa causa, quae sunt prope infinitae, tum iis, ex quibus omnes controversiae constant, personis, factis, dictis, causis, temporibus, locis, occasionibus, ceteris. veras esse fateor, sed in haec genera recidere.
1.51. For if I can secure good-will, attention and readiness to learn on the part of my judge, I cannot see what else I ought to require; even fear, which perhaps may be thought more than anything else to lie outside the considerations I have mentioned, secures the attention of the judge and deters him from favouring our opponent.
1.51. si iudicem benevolum, attentum, docilem habeo, quid amplius debeam optare, non reperio; cum metus ipse, qui maxime videtur esse extra haec, et attentum iudicem faciat et ab adverso favore deterreat.
1.52. It is not, however, sufficient to explain the nature of the exordium to our pupils. We must also indicate the easiest method of composing an exordium. I would therefore add that he who has a speech to make should consider what he has to say; before whom, in whose defence, against whom, at what time and place, under what circumstances he has to speak; what is the popular opinion on the subject, and what the prepossessions of the judge are likely to be; and finally of what we should express our deprecation or desire. Nature herself will give him the knowledge of what he ought to say first.
1.52. quoniam non est satis demonstrare discentibus, quae sint in ratione prooemii, sed dicendum etiam, quomodo perfici facillime possint, hoc adiicio, ut dicturus intueatur, quid, apud quem, pro quo, contra quem, quo tempore, quo loco, quo rerum statu, qua vulgi fama dicendum sit, quid iudicem sentire credibile sit, antequam incipimus, tum quid aut desideremus aut deprecemur. illum natura eo ducet, ut sciat, quid primum dicendum sit.
1.53. Nowadays, however, speakers think that anything with which they choose to start is a proem and that whatever occurs to them, especially if it be a reflexion that catches their fancy, is an exordium. There are, no doubt, many points that can be introduced into an exordium which are common to other parts of a speech, but the best test of the appropriateness of a point to any part of a speech is to consider whether it would lose effect by being placed elsewhere.
1.53. nunc omne, quo coeperunt, prooemium putant et, ut quidque succurrit, utique si aliqua sententia blandiatur, exordium. autem sine dubio sunt et aliis partibus causae communia, nihil tamen in quaque melius dicitur, quam quod aeque bene dici alibi non possit. Multum gratiae exordio est, quod ab actione diversae partis materiam trahit, hoc ipso, quod non compositum domi, sed ibi atque ex re natum, et facilitate famam ingenii auget et facie simplicis sumptique ex proximo sermonis fidem quoque adquirit;
1.54. A most attractive form of exordium is that which draws its material from the speech of our opponent, if only for the reason that the fact of its not having been composed at home, but having been improvised on the spot to meet the needs of the case increases the orator's reputation for natural talent by the readiness with which it is produced and carries conviction owing to the simple and ordinary language in which it is clothed. As a result, even although the rest of the speech has been committed to writing and carefully elaborated, the whole of the speech will often be regarded as extempore, simply because its commencement is clearly not the result of previous study. Indeed a certain simplicity in the thoughts, style, voice and look of the speaker will often produce so pleasing an effect in the exordium that even in a case where there is no room for doubt the confidence of the speaker should not reveal itself too openly. For as a rule the judge dislikes self-confidence in a pleader, and conscious of his rights tacitly demands the respectful deference of the orator.
1.54. adeo ut, etiamsi reliqua scripta atque elaborata sint, tamen plerumque videatur tota extemporalis oratio, cuius initium nihil praeparati habuisse manifestum est. vero prooemium decebit et sententiarum et compositionis et vocis et vultus modestia, adeo ut in genere causae etiam indubitabili fiducia se ipsa nimium exserere non debeat. enim iudex fere litigantis securitatem, cumque ius suum intelligat, tacitus reverentiam postulat.
1.56. No less care must be taken to avoid exciting any suspicion in this portion of our speech, and we should therefore give no hint of elaboration in the exordium, since any art that the orator may employ at this point seems to be directed solely at the judge.
1.56. minus diligenter ne suspecti simus illa parte vitandum est, propter quod minime ostentari debet in principiis cura, quia videtur ars omnis dicentis contra iudicem adhiberi.
1.57. But to avoid all display of art in itself requires consummate art: this admirable canon has been insisted on by all writers, though its force has been somewhat impaired by present conditions, since in certain trials, more especially those brought on capital charges or in the centumviral court, the judges themselves demand the most finished and elaborate speeches, think themselves insulted, unless the orator shows signs of having exercised the utmost diligence in the preparation of his speech, and desire not merely to be instructed, but to be charmed.
1.57. ipsum istud evitare summae artis est. id sine dubio ab omnibus et quidem optime praeceptum est, verum aliquatenus temporum condicione mutatur, quia iam quibusdam in iudiciis maximeque capitalibus aut apud centumviros ipsi iudices exigunt sollicitas et accuratas actiones, contemnique se, nisi in dicendo etiam diligentia appareat, credunt, nec doceri tantum sed etiam delectari volunt.
1.58. It is difficult to preserve the happy mean in carrying this precept into effect: but by a skilful compromise it will be possible to give the impression of speaking with care but without elaborate design. The old rule still holds good that no unusual word, no overbold metaphor, no phrase derived from the lumber-rooms of antiquity or from poetic licence should be detected in the exordium.
1.58. est difficilis huius rei moderatio, quae tamen temperari ita potest, ut videamur accurate non callide dicere. ex praeceptis veteribus manet, ne quod insoles verbum, ne audacius translatum, ne aut ab obsoleta vetustate aut poetica licentia sumptum in principio deprehendatur.
1.59. For our position is not yet established, the attention of the audience is still fresh and imposes restraint upon us: as soon as we have won their good-will and kindled their interest, they will tolerate such freedom, more especially when we have reached topics whose natural richness prevents any licence of expression being noticed in the midst of the prevailing splendour of the passage.
1.59. enim recepti sumus, et custodit nos recens audientium intentio; magis conciliatis animis et iam calentibus haec libertas feretur, maximeque cum in locos fuerimus ingressi, quorum naturalis ubertas licentiam verbi notari circumfuso nitore non patitur.
1.60. The style of the exrordiumn should not resemble that of our purple patches nor that of the argumentative and narrative portions of the speech, nor yet should it be prolix or continuously ornate: it should rather seem simple and unpremeditated, while neither our words nor our looks should promise too much. For a method of pleading which conceals its art and makes no vain display, being as the Greeks say ἀνεπίφατος will often be best adapted to insinuate its way into the minds of our hearers. But in all this we must be guided by the extent to which it is expedient to impress the minds of the judges.
1.60. argumentis autem nec locis nec narrationi similis esse in prooemio debet oratio, neque tamen deducta semper atque circumlita, sed saepe simplici atque illaboratae similis, nec verbis vultuque nimia promittens. enim et, ut Graeci dicunt, ἀνεπίφαντος actio melius saepe surrepit. haec, prout formari animum iudicum expediet.
1.61. There is no point in the whole speech where confusion of memory or loss of fluency has a worse effect, for a faulty exordium is like a face seamed with scars; and he who runs his ship ashore while leaving port is certainly the least efficient of pilots.
1.61. memoria vel continuandi verba facultate destitui nusquam turpius, cum vitiosum prooemium possit videri cicatricosa facies, et pessimus certe gubernator qui navem, dum portu egreditur, impegit.