1.62. The length of the exordium will be determined by the case; simple cases require a short introduction only, longer exordia being best suited to cases which are complicated, suspect or unpopular. As for those who have laid it down as a law applying to all exordia that they should not be more than four sentences long, they are merely absurd. On the other hand undue length is equally to be avoided, lest the head should seem to have grown out of all proportion to the body and the judge should be wearied by that which ought to prepare him for what is to follow.
1.62. autem principii pro causa. breve simplices, longius perplexae suspectaeque et infames desiderant. vero, qui velut legem prooemiis omnibus dederunt, ut intra quattuor sensus terminarentur. minus evitanda est immodica eius longitudo, ne in caput excrevisse videatur et quo praeparare debet fatiget.
1.63. The figure which the Greeks call apostrophe, by which is meant the diversion of our words to address some person other than the judge, is entirely banned by some rhetoricians as far as the exordium is concerned, and for this they have some reason, since it would certainly seem to be more natural that we should specially address ourselves to those whose favour we desire to win.
1.63. a persona iudicis aversum, quae ἀποστροφή dicitur, quidam in totum a prooemio summouent, nonnulla quidem in hanc persuasionem ratione ducti. prorsus esse hoc magis secundum naturam confitendum est, ut eos alloquamur potissimum, quos conciliare nobis studemus.
1.64. Occasionally however some striking expression of thought is necessary in the exordium which can be given greater point and vehemence if addressed to some person other than the judge. In such a case what law or what preposterous superstition is to prevent us from adding force to such expression of our thought by the use of this figure?
1.64. tamen et est prooemio necessarius sensus aliquis, et hic acrior fit atque vehementior ad personam derectus alterius. si accidat. quo iure aut qua tanta superstitione prohibeamur dare per hanc figuram sententiae vires?
1.65. For the writers of text-books do not forbid it because they regard it as illicit, but because they think it useless. Consequently if its utility be proved, we shall have to employ it for the very reason for which we are now forbidden to do so.
1.65. enim istud scriptores artium, quia non liceat, sed quia non putent utile, vetant. si vincet utilitas, propter eandem causam facere debebimus propter quam vetamur.
1.66. Moreover Demosthenes turns to address Aeschines in his exordium, while Cicero adopts the same device in several of his speeches, but more especially in the pro Ligario, where he turns to address Tubero.
1.66. Demosthenes autem ad Aeschinen orationem in prooemio convertit, et M. Tullius, cum pro aliis quibusdam, ad quos ei visum est, tum pro Ligario ad Tuberonem;
1.67. His speech would have been much less effective, if any other figure had been used, as will be all the more clearly realised, if the whole of that most vigorous passage “You are, then, in possession, Tubero, of the most valuable advantage that can fall to an accuser etc.” be altered so as to be addressed to the judge. For it is a real and most unnatural diversion of the passage, which destroys its whole force, if we say “Tubero is then in possession of the most valuable advantage that can fall to an accuser.”
1.67. nam erat multo futura languidior, si esset aliter figurata. facilius cognoscet, si quis totam illam partem vehementissimam, cuius haec forma est, igitur, Tubero, quod est accusatori maxime optandum, et cetera convertat ad iudicem; tum enim vere aversa videatur oratio et languescat vis omnis, dicentibus nobis igitur Tubero, quod est accusatori maxime optandum. enim modo pressit atque institit, hoc tantum indicasset.
1.68. In the original form Cicero attacks his opponent and presses him hard, in the passage as altered he would merely have pointed out a fact. The same thing results if you alter the turn of the passage in Demosthenes. Again did not Sallust when speaking against Cicero himself address his exordium to him and not to the judge? In fact he actually opens with the words “I should feel deeply injured by your reflexions on my character, Marcus Tullius,” wherein he followed the precedent set by Cicero in his speech against Catiline where he opens with the words “How long will you continue to abuse our patience?”
1.68. idem in Demosthene, si flexum illi mutaveris, accidit.? non Sallustius derecto ad Ciceronem, in quem ipsum dicebat, usus est principio, et quidem protinus? et iniquo animo maledicta tua paterer, Marce Tulli, sicut Cicero fecerat in Catilinam:
1.69. Finally to remove all reason for feeling surprise at the employment of apostrophe, Cicero in his defence of Scaurus, on a charge of bribery (the speech is to be found in his Notebooks; for he defended him twice) actually introduces an imaginary person speaking on behalf of the accused, while in his pro Rahirio and his speech in defence of this same Scaurus on a charge of extortion he employs illustrations, and in the pro Cluentio, as I have already pointed out, introduces division into heads.
1.69. usque tandem abutere?, ne quis apostrophen miretur, idem Cicero pro Scauro ambitus reo, quae causa est in commentariis (nam bis eundem defendit), prosopopoeia loquentis pro reo utitur, pro Rabirio vero Postumo eodemque Scauro reo repetundarum etiam exemplis, pro Cluentio (ut modo ostendi) partitione.
1.70. Still such artifices, although they may be employed at times to good effect, are not to be indulged in indiscriminately, but only when there is strong reason for breaking the rule. The same remark applies to simile (which must however be brief), metaphor and other tropes, all of which are forbidden by our cautious and pedantic teachers of rhetoric, but which we shall none the less occasionally employ, unless indeed we are to disapprove of the magnificent example of irony in the pro Ligario to which I have already referred a few pages back.
1.70. tamen haec, quia possunt bene aliquando fieri, passim facienda sunt, sed quotiens praeceptum vicerit ratio; quomodo et similitudine, dum brevi, et translatione atque aliis tropis (quae omnia cauti illi ac diligentes prohibent) utemur interim, nisi cui divina ilia pro Ligario ironia, de qua paulo ante dixeram, displicet.
1.71. The rhetoricians have however been nearer the truth in their censure of certain other faults that may occur in the exordium. The stock exordium which can be suited to a number of different cases they style vulgar; it is an unpopular form but can sometimes be effectively employed and has often been adopted by some of the greatest orators. The exordium which might equally well be used by our opponent, they style common. That which our opponent can turn to his own advantage, they call interchangeable, that which is irrelevant to the case, detached, and that which is drawn from some other speech, transferred. In addition to these they censure others as long and others as contrary to rule. Most of these faults are however not peculiar to the exordinum, but may be found in any or every portion of a speech.
1.71. exordiorum vitia verius tradiderunt. in plures causas accommodari potest, vulgare dicitur; id minus favorabile aliquando tamen non inutiliter adsumimus, magnis saepe oratoribus non evitatum. et adversarius uti potest, commune appellatur; quod adversarius in suam utilitatem deflectere potest, commutabile; quod causae non cohaeret, separatum; quod aliunde trahitur, tralatum; praeterea quod longum, quod contra praecepta est; quorum pleraque non principii modo sunt vitia sed totius orationis. de prooemio, quotiens erit eius usus, non semper autem est;
1.72. Such are the rules for the exordium, wherever it is employed. It may however sometimes be dispensed with. For occasionally it is superfluous, if the judge has been sufficiently prepared for our speech without it or if the case is such as to render such preparation unnecessary. Aristotle indeed says that with good judges the exordium is entirely unnecessary. Sometimes however it is impossible to employ it, even if we desire to do so, when, for instance, the judge is much occupied, when time is short or superior authority forces us to embark upon the subject right away.
1.72. nam et supervacuum aliquando est, si sit praeparatus satis etiam sine hoc iudex, aut si res praeparatione non egeat. Aristoteles quidem in totum id necessarium apud bonos iudices negat. tamen uti nec si velimus eo licet, cum index occupatus, cum angusta sunt tempora, cum maior potestas ab ipsa re cogit incipere.
1.73. On the other hand it is at times possible to give the force of an exordium to other portions of the speech. For instance we may ask the judges in the course of our statement of the facts or of our arguments to give us their best attention and good-will, a proceeding which Prodicus recommended as a means of wakening them when they begin to nod. A good example is the following:
1.73. est interim prooemii vis etiam non exordio. indices et in narratione nonnunquam et in argumentis ut attendant et ut faveant rogamus, quo Prodicus velut dormitantes eos excitari putabat, quale est:
1.74. “Gaius Varenus, he who was killed by the slaves of Ancharius—I beg you, gentlemen, to give me your best attention at this point.” Further if the case involves a number of different matters, each section must be prefaced with a short introduction, such as “Listen now to what follows,” or “I now pass to the next point.” Even in the proof there are many passages which perform the same function as an exordium, such as the passage in the pro Cluentio where Cicero introduces an attack on the censors and in the pro Murena when he apologises to Servius. But the practice is too common to need illustration.
1.74. C. Varenus, is qui a familia Anchariana occisus est — hoc, quaeso, iudices, diligenter attendite. si multiplex causa est, sua quibusque partibus danda praefatio est, ut nunc reliqua, et nunc illuc. in ipsis etiam probationibus multa funguntur prooemii vice, ut facit Cicero pro Cluentio dicturus contra censores, pro Murena, cum se Servio excusat. id frequentius est, quam ut exemplis confirmandum sit.
1.76. However on all occasions when we have employed the exordium, whether we intend to pass to the statement of facts or direct to the proof, our intention should be mentioned at the conclusion of the introduction, with the result that the transition to what follows will be smooth and easy.
1.76. autem prooemio fuerimus usi, tum sive ad expositionem transibimus sive protinus ad probationem, id debebit in principio postremum esse, cui commodissime iungi initium sequentium poterit.
1.77. There is indeed a pedantic and childish affectation in vogue in the schools of marking the transition by some epigram and seeking to win applause by this feat of legerdemain. Ovid is given to this form of affectation in his Metamorphoses, but there is some excuse for him owing to the fact that he is compelled to weld together subjects of the most diverse nature so as to form a continuous whole.
1.77. vero frigida et puerilis est in scholis adfectatio, ut ipse transitus efficiat aliquam utique sententiam et huius velut praestigiae plausum petat, ut Ovidius lascivire in Metamorphosesin solet, quem tamen excusare necessitas potest res diversissimas in speciem unius corporis colligentem.
1.78. But what necessity is there for an orator to gloss over his transitions or to attempt to deceive the judge, who requires on the contrary to be warned to give his attention to the sequence of the various portions of the speech? For instance the first part of our statement of the facts will be wasted, if the judge does not realise that we have reached that stage.
1.78. vero quid est necesse surripere hanc transgressionem et iudicem fallere, qui, ut ordini rerum animum intendat, etiam commonendus est? enim prima pars expositionis, si iudex narrari nondum sciet.
1.79. Therefore, although we should not be too abrupt in passing to our statement of facts, it is best to do nothing to conceal our transition. Indeed, if the statement of fact on which we are about to embark is somewhat long and complicated, we shall do well to prepare the judge for it, as Cicero often does, most notably in the following passage: “The introduction to my exposition of this point will be rather longer than usual, but I beg you, gentlemen, not to take it ill. For if you get a firm grasp of the beginning, you will find it much easier to follow what comes last.” This is practically all that I can find to say on the subject of the exordium.
1.79. , ut non abrupte cadere in narrationem, ita non obscure transcendere est optimum. vero longior sequetur ac perplexa magis expositio, ad eam ipsam praeparandus erit iudex, ut Cicero saepius, sed et hoc loco fecit: longius exordium rei demonstrandae repetam, quod, quaeso, iudices, ne moleste patiamini; principiis enim cognitis multo facilius extrema intelligetis. fere sunt mihi de exordio comperta.
2.1. II. It is a most natural and frequently necessary proceeding, that after preparing the mind of the judge in the manner described above we should indicate the nature of the subject on which he will have to give judgment: that is the statement of facts.
2.1. naturale est et fieri frequentissime debet, ut praeparato per haec, quae supra dicta sunt, iudice res, de qua pronuntiaturus est, indicetur. est narratio.
2.2. In dealing with this question I shall deliberately pass over the divisions made by certain writers, who make too many classes and err on the side of subtlety. For they demand an explanation dealing not only with the facts of the case which is before the court, but with the person involved (as in the sentence, “Marcus Lollius Palicanus, a Picentine of humble birth, a man gifted with loquacity rather than eloquence ” ) or of the place where an incident occurred (as in the sentence “Lampsacus, gentlemen, is a town situated on the Hellespont” ), or of the time at which something occurred (as in the verseIn early spring, when on the mountains hoarThe snows dissolve),or of the causes of an occurrence, such as the historians are so fond of setting forth, when they explain the origin of a war, a rebellion or a pestilence. Further they style some statements of fact “complete,” and others “incomplete,” a distinction which is self-evident. To this they add that our explanation may refer to the past (which is of course the commonest form), the present (for which compare Cicero's remarks about the excitement caused among the friends of Chrysogonus when his name was mentioned), or of the future (a form permissible only to prophets): for hypotyposis or picturesque description cannot be regarded as a statement of facts.
2.2. qua sciens transcurram subtiles nimium divisiones quorundam plura eius genera facientium. enim solam volunt esse illam negotii, de quo apud iudices quaeritur, expositionem, sed personae, ut M. Lollius Palicanus, humili loco Picens, loquax magis quam facundus; loci, ut est in Hellesponto Lampsacum, indices; temporis utnouo, gelidus canis cum montibus humo?;causarum, quibus historici frequentissime utuntur, cum exponunt, unde bellum, seditio, pestilentia. haec alias perfectas, alias imperfectas vocant; quod quis ignorat? expositionem et praeteritorum esse temporum, quae est frequentissima, et praesentium, qualis est Ciceronis de discursu amicorum Chrysogoni, postquam est nominatus, et futurorum, quae solis dari uaticinantibus potest; nam ὑποτύπωσις non est habenda narratio.
2.4. However let us pass to matters of more importance. The majority regard the statement of facts as being indispensable: but there are many considerations which show that this view is erroneous. In the first place there are some cases which are so brief, that they require only a brief summary rather than a full statement of the facts.
2.4. nos potioribus vacemus. semper narrandum putaverunt, quod falsum esse pluribus coarguitur. enim ante omnia quaedam tam breves causae, ut propositionem potius habeant quam narrationem.
2.5. This may apply to both parties to a suit, as for instance in cases where there is no necessity for explanation or where the facts are admitted and the whole question turns on a point of law, as it so often does in the centumviral court, as for example when we discuss, whether the heir of a woman who has died intestate should be her son or brother, or whether puberty is to be reckoned by age or by physical development. The same situation arises also in cases where the facts admit of full statement, but are well known to the judge or have been correctly set forth by a previous speaker.
2.5. accidit aliquando utrique parti, cum vel nulla expositio est, vel de re constat, de iure quaeritur, ut apud centumviros, filius an frater debeat esse intestatae heres, pubertas annis an corporis habitu aestimetur: aut cum est quidem in re narrationi locus, sed aut ante iudici nota sunt omnia aut priore loco recte exposita. aliquando alteri et saepius ab actore, vel quia satis est proponere vel quia sic magis expedit.
2.6. Sometimes again the statement of facts can be dispensed with only by one party, who is generally the plaintiff, either because it is sufficient for him to make a simple summary of his case or because it is more expedient for him to do so. It may, for instance, suffice to say, “I claim repayment of a certain sum of money which was lent on certain conditions” or “I claim a legacy in accordance with the terms of the will.” It is for the other party to explain why these sums are not due to the plaintiff. Again it is sometimes sufficient and expedient to summarise a case in one sentence such as “I say that Horatius killed his sister.” For the judge will understand the whole charge from this simple affirmation: the sequence of events and the motive for the deed will be matters for the defence to expound.
2.6. est dixisse, creditam pecuniam peto ex stipulatione; Legatum peto ex testamento. partis expositio est, cur ea non debeantur. satis est actori et magis expedit sic indicare: ab Horatio sororem suam interfectam. et propositione iudex crimen omne cognoscit, et ordo et causa facti pro adversario magis est.
2.8. On the other hand in some cases the accused may dispense with the statement of facts, when for instance the charge can neither be denied nor palliated, but turns solely on some point of law: the following case will illustrate my meaning. A man who has stolen from a temple money belonging to a private individual is accused of sacrilege: in such a case a confession will be more seemly than a full statement of facts: “We do not deny that the money was taken from the temple; but the accuser is bringing a false accusation in charging my client with sacrilege, since the money was not consecrated, but private property: it is for you to decide whether under these circumstances sacrilege has been committed.”
2.8. contra tunc narrationem subtrahet, cum id, quod obiicitur, neque negari neque excusari poterit, sed in sola iuris quaestione consistet; ut in eo, qui, cum pecuniam privatam ex aede sacra surripuerit, sacrilegii reus est, confessio verecundior quam expositio: negamus de templo pecuniam esse sublatam, calumniatur tamen accusator actione sacrilegii, cum privata fuerit non sacra; vos autem de hoc cognoscetis, an sacrilegium sit admissum.
2.9. While however I think that there are occasional cases where the statement of facts may be dispensed with, I disagree with those who say that there is no statement of facts when the accused simply denies the charge. This opinion is shared by Cornelius Celsus who holds that most cases of murder and all of bribery and extortion fall into this class.
2.9. ut has aliquando non narrandi causas puto, sic ab illis dissentio, qui non existimant esse narrationem, cum reus quod obiicitur tantum negat; in qua est opinione Cornelius Celsus, qui condicionis huius esse arbitratur plerasque caedis causas et omnes ambitus ac repetundarum.
2.10. For he thinks that the only statement of facts is that which gives a general account of the charge before the court. Yet he himself acknowledges that Cicero employed the statement of facts in his defence of Rabirius Postumus, in spite of the fact that Cicero denies that any money came into the hands of Rabirius (and this was the question at issue) and gives no explanations relating to the actual charge in his statement of facts.
2.10. enim putat esse narrationem, nisi quae summam criminis de quo iudicium est contineat, deinde fatetur ipse pro Rabirio Postumo narrasse Ciceronem; atque ille et negavit pervenisse ad Rabirium pecuniam, qua de re erat quaestio constituta, et in hac narratione nihil de crimine exposuit.
2.11. For my part I follow the very highest authorities in holding that there are two forms of statement of facts in forensic speeches, the one expounding the facts of the case itself, the other setting forth facts which have a bearing on the case.
2.11. autem magnos alioqui secutus auctores, duas esse in iudiciis narrationum species existimo, alteram ipsius causae, alteram rerum ad causam pertinentium expositionem.
2.12. I agree that a sentence such as “I did not kill the man” does not amount to a statement of facts: but there will be a statement of facts, occasionally, too, a long one, in answer to the arguments put forward by the accuser: it will deal with the past life of the accused, with the causes which have brought an innocent man into peril, and other circumstances such as show the charge to be incredible.
2.12. occidi hominem, nulla narratio est; convenit; sed erit aliqua et interim etiam longa contra argumenta eius criminis de anteacta vita, de causis, propter quas innocens in periculum deducatur, aliis, quibus incredibile id quod obiicitur fiat.
2.13. For the accuser does not merely say “You killed him,” but sets forth the facts proving his assertion: tragedy will provide an example, where Teucer accuses Ulysses of murdering Ajax, and states that he was found in a lonely place near the lifeless body of his enemy with a blood-stained sword in his hands. To this Ulysses does not merely reply that he did not do the deed, but adds that he had no quarrel with Ajax, the contest between them having been concerned solely with the winning of renown: he then goes on to say how he came to be in the lonely place, how he found Ajax lying lifeless and drew the sword from the wound. Then follow arguments based on these facts.
2.13. enim accusator tantum hoc dicit, occidisti; sed, quibus id probet narrat. in tragoediis, cum Teucer Vlixem reum facit Aiacis occisi dicens inventum eum in solitudine iuxta exanime corpus inimici cum gladio cruento, non id modo Ulixes respondet non esse a se id facinus admissum, sed sibi nullas cum Aiace inimicitias fuisse, de laude inter ipsos certatum; deinde subiungit, quomodo in eam solitudinem venerit, iacentem exanimem sit conspicatus, gladium e vulnere extraxerit.
2.14. But even when the accuser says “You were found on the spot where your enemy was killed” and the accused says “I was not,” a statement of facts is involved; for he must say where he was. Consequently cases of bribery and extortion will require as many statements of this kind as there are charges: the charges themselves will be denied, but it will be necessary to counter the arguments of the accuser either singly or all together by setting forth the facts in quite a different light.
2.14. subtexitur argumentatio. ne illud quidem sine narratione est, dicente accusatore, in eo loco, in quo tuus inimicus occisus est: Non fui; dicendum enim, ubi fuerit. ambitus quoque causae et repetundarum hoc etiam plures huiusmodi narrationes habere poterunt, quo plura crimina; in quibus ipsa quidem neganda sunt, sed argumentis expositione contraria resistendum est interdum singulis interdum universis.
2.15. Is it, I ask you, irrelevant for one accused of bribery to set forth his parentage, his past life and the services on which he relied for success in his candidature? And if a man is indicted for extortion, will it not be to his advantage to set forth not merely his past record, but also the reasons which have made the whole province or the accuser or a witness hostile to himself?
2.15. reus ambitus male narrabit, quos parentes habuerit, quemadmodum ipse vixerit, quibus meritis fretus ad petitionem descenderit? qui repetundarum crimine insimulabitur, non et anteactam vitam, et quibus de causis provinciam universam vel accusatorem aut testem offenderit, non inutiliter exponet?
2.16. If these are not statements of facts, neither is the first portion of Cicero's defence of Cluentius, beginning with the words “Aulus Cluentius Habitus.” For there he says nothing about the charge of poisoning, but confines himself entirely to setting forth the reasons for the hostility of Cluentius' mother to her son.
2.16. si narratio non est, ne illa quidem Ciceronis pro Cluentio prima, cuius est initium: A. Cluentius Habitus. enim hic de veneficio, sed de causis, quibus ei mater inimica sit, dicit.
2.17. There are also statements which do not set forth the facts of the case itself, but facts which are none the less relevant to the case: the speaker's purpose may be to illustrate the case by some parallel, as in the passage in the Verrines about Lucius Domitius who crucified a shepherd because he admitted that he had used a hunting spear to kill the boar which he had brought him as a present;
2.17. quoque sunt pertinentes ad causam sed non ipsius causae narrationes: vel exempli gratia ut in Verrem de L. Domitio, qui pastorem, quod is aprum, quem ipsi muneri obtulerat, exceptum esse a se venabulo confessus esset, in crucem sustulit; vel discutiendi alicuius extrinsecus criminis, ut pro Rabirio Postumo: ut ventum Alexandriam est, iudices, haec una ratio a rege proposita Postumo est servandae pecuniae, si curationem et quasi dispensationem regiam suscepisset;
2.18. or he may desire to dispel some charge that is irrelevant to the case as in the passage of the speech for Rabirius Postumus, which runs as follows: “For when he came to Alexandria, gentlemen, the only means of saving his money which the king suggested to Postumus was that he should take charge of the royal household and act as a kind of steward.” Or the orator may desire to heighten the effect of his charges, as Cicero does in his description of the journey of Verres. Sometimes a fictitious statement is employed either to stir the emotions of the judges, as in that passage of the proo Roscio Amerino dealing with Chrysogonus to which I referred just recently, or to entertain them with a show of wit, as in the passage of the pro Cluentio describing the brothers Caepasius: sometimes again a digression may be introduced to add beauty to the speech, as in the passage about Proserpine in the Verrines, beginning “It was here that a mother is once said to have sought her daughter.” All these examples serve to show that he who denies a charge may not necessarily refrain from stating, but may actually state that very fact which he denies.
2.18. vel augendi, ut describitur iter Verris. interim narratio introduci solet, vel ad concitandos iudices ut pro Roscio circa Chrysogonum, cuius paulo ante habui mentionem; vel ad resolvendos aliqua urbanitate, ut pro Cluentio circa fratres Caepasios; interdum per digressionem decoris gratia, qualis rursus in Verrem de Proserpina, his quondam locis mater filiam quaesisse dicitur. omnia eo pertinent, ut appareat non utique non narrare eum qui negat, sed illud ipsum narrare quod negat.
2.20. Even the assertion which I made above to the effect that a statement of facts familiar to the judge is superfluous, is not to be taken too literally. My meaning is that it may be dispensed with, if the judge knows not merely what has been done, but takes a view of the facts which is favourable to our case.
2.20. hoc quidem simpliciter accipiendum, quod est a me positum, esse supervacuam narrationem rei, quam iudex noverit; quod sic intelligi volo, si non modo quid factum sit sciet, sed ita factum etiam, ut nobis expedit, opinabitur.
2.21. For the purpose of the statement of facts is not merely to instruct, but rather to persuade the judge. Therefore, when we desire to influence him in some way or other, although he may require no instruction, we shall preface our statement with some such remarks as these: “I know that you are aware of the general nature of the case, but I trust you will not take it ill if I ask you to consider each point in detail.”
2.21. enim narratio in hoc reperta est, ut tantum cognoscat index, sed aliquanto magis, ut consentiat., etiamsi non erit docendus, sed aliquo modo adficiendus, narrabimus cum praeparatione quadam: scire quidem eum in summam, quid acti sit, tamen rationem quoque facti cuiusque cognoscere ne gravetur.
2.22. At times again we may pretend that we are repeating the facts for the benefit of some new member of the jury, at times that we do so with a view to letting every bystander as well realise the gross unfairness of our opponents' assertions. Under these circumstances our statement must be diversified by a free use of figures to avoid wearying those to whom the facts are familiar: we shall for instance use phrases such as “You remember,” “It may perhaps be superfluous to dwell on this point,” “But why should I say more, as you are well acquainted with the fact?”, “You are not ignorant how this matter stands” and so on.
2.22. propter aliquem in consilium adhibitum nos repetere illa simulemus, interim, ut rei, quae ex adverso proponatur, iniquitatem omnes etiam circumstantes intelligant. quo genere plurimis figuris erit varianda expositio ad effugiendum taedium nota audientis, sicut, et supervacuum fuerit hic commorari. quid ego diutius, cum tu optime noris?
2.23. Besides, if we are always to regard as superfluous a statement of facts made before a judge who is familiar with the case, we may even go so far as to regard it as superfluous at times to plead the case at all.
2.23. quale sit, tu scias, et his similia. si apud iudicem, cui nota causa est, narratio semper videtur supervacua, potest videri non semper esse etiam ipsa actio necessaria.
2.24. There is a further question which is still more frequently raised, as to whether the statement of facts should always follow immediately on the exordium. Those who hold that it should always do so must be admitted to have some reason on their side. For since the purpose of the exordium is to make the judge more favourably disposed and more attentive to our case and more amenable to instruction, and since the proof cannot be brought forward until the facts of the case are known, it seems right that the judge should be instructed in the facts without delay.
2.24. est, de quo frequentius quaeritur, an sit utique narratio prooemio subiicienda; quod qui opinantur, non possunt videri nulla ratione ducti. cum prooemium idcirco comparatum sit, ut iudex ad rem accipiendam fiat conciliatior, docilior, intentior, et probatio nisi causa prius cognita non possit adhiberi, protinus iudex notitia rerum instruendus videtur.
2.25. But the practice may be altered by circumstances, unless it is contended that Cicero in his magnificent published defence of Milo delayed his statement too long by placing three questions before it; or unless it is argued that, if it bad been held to be impermissible to defend a man at all who acknowledged that he had killed another, or if Milo's case had already been prejudged and condemnation passed by the senate, or if Gnaeus Pompeius, who in addition to exerting his influence in other ways had surrounded the court with an armed guard, had been regarded with apprehension as hostile to the accused, it would have served his case to set forth how Clodius had set an ambush for Milo.
2.25. hoc quoque interim mutat condicio causarum; nisi forte M. Tullius in oratione pulcherrima, quam pro Milone scriptam reliquit, male distulisse narrationem videtur tribus praepositis quaestionibus; aut profuisset exponere, quomodo insidias Miloni fecisset Clodius, si reum, qui a se hominem occisum fateretur, defendi omnino fas non fuisset, aut si iam praeiudicio senatus damnatus esset Milo, aut si Cn. Pompeius, qui praeter aliam gratiam iudicium etiam militibus armatis clauserat, tanquam adversus ei timeretur.
2.26. These three questions, then, served the purpose of an exordium, since they all of them were designed to prepare the minds of the judges. Again in the pro Vareno Cicero delayed his statement of facts until he had first rebutted certain allegations put forward by the prosecution. This may be done with advantage whenever we have not merely to rebut the charge, but to turn the tables on our opponents: thus after first rebutting the charge, we make our statement of facts the opening of an incrimination of the other party just as in actual fighting we are most concerned to parry our adversary's blows before we strike him ourselves.
2.26. hae quoque quaestiones vim prooemii obtinebant, cum omnes iudicem praepararent. pro Vareno quoque postea narravit quam obiecta diluit. fiet utiliter, quotiens non repellendum tantum erit crimen, sed etiam transferendum, ut his prius defensis velut initium sit alium culpandi narratio, ut in armorum ratione antiquior cavendi quam ictum inferendi cura est.
2.27. There will also not infrequently be certain cases, in which it is easy to rebut the charge that is under trial, but the conduct of which is hampered by the past life of our client and the many and serious crimes which he has committed. We must dispose of these first, in order that the judge may give a favourable hearing to our defence of the actual facts which form the question at issue. For example, if we have to defend Marcus Caelius, the best course for his advocate to adopt will be to meet the imputations of luxury, wantonness and immorality which are made against him before we proceed to the actual charge of poisoning. It is with these points that the speech of Cicero in his defence is entirely concerned. Is he then to go on to make a statement about the property of Palla and explain the whole question of rioting, a charge against which Caelius has already defended himself in the speech which he delivered on his own behalf?
2.27. quaedam causae (neque id raro) crimine quidem, de quo cognitio est, faciles ad diluendum sed multis anteactae vitae flagitiis et gravibus oneratae; quae prius amovenda sunt, ut propitius iudex defensionem ipsius negotii, cuius propria quaestio est, audiat: ut, si defendendus sit M. Caelius, nonne optime patronus occurrat prius conviciis luxuriae, petulantiae, impudicitiae quam veneficii, in quibus solis omnis Ciceronis versatur oratio; tum deinde narret de bonis Pallae totamque de vi explicet causam, quae est ipsius actione defensa?
2.28. We however are the victims of the practice of the schools in accordance with which certain points or themes as we call them are put forward for discussion, outside which our refutation must not go, and consequently a statement of facts always follows the exordium. It is this too that leads declaimers to take the liberty of inserting a statement of facts even when they speak second for their side.
2.28. nos ducit scholarum consuetudo, in quibus certa quaedam ponuntur, quae themata dicimus, praeter quae nihil est diluendum, ideoque prooemio narratio semper subiungitur. libertas declamatoribus, ut etiam secundo partis suae loco narrare videantur.
2.29. For when they speak for the prosecution they introduce both a statement of facts, as if they were speaking first, and a refutation of the arguments for the defence, as if they were replying: and they are right in so doing. For since declamation is merely an exercise in forensic pleading, why should they not qualify themselves to speak either first or second? Those however who do not understand the reason for such a practice, think that when they appear in the courts they should stick to the custom of the schools with which they have become familiar.
2.29. cum pro petitore dicunt et expositione, tanquam priores agant, uti solent et contradictione, tanquam respondeant, idque fit recte. cum sit declamatio forensium actionum meditatio, cur non in utrumque protinus locum se exerceat? rationis ignari ex more, cui adsueverunt, nihil in foro putant esse mutandum.
2.30. But even scholastic rhetoricians occasionally substitute a brief summary for the full statement of the facts. For what statement of the case can be made when a wife is accusing a jealous husband of maltreating her, or a father is indicting his son turned Cynic before the censors for indecent behaviour? In both cases the charge can be sufficiently indicated by one word placed in any part of the speech. But enough of these points.
2.30. in scholasticis quoque nonnunquam evenit, ut pro narratione sit propositio. quid exponet, quae zelotypum malae tractationis accusat, aut qui Cynicum apud censores reum de moribus facit? cum totum crimen uno verbo in qualibet actionis parte posito satis indicetur. haec hactenus.
2.31. I will now proceed to the method to be adopted in making our statement of facts. The statement of facts consists in the persuasive exposition of that which either has been done, or is supposed to have been done, or, to quote the definition given by Apollodorus, is a speech instructing the audience as to the nature of the case in dispute. Most writers, more especially those of the Isocratean school, hold that it should be lucid, brief and plausible (for it is of no importance if we substitute clear for lucid, or credible or probable for plausible).
2.31. , quae sit narrandi ratio, subiungam. est rei factae aut ut factae utilis ad persuadendum expositio, vel (ut Apollodorus finit) oratio docens auditorem, quid in controversia sit. plerique scriptores, maxime qui sunt ab Isocrate, volunt esse lucidam, brevem, verisimilem. enim refert, an pro lucida perspicuam, pro verisimili probabilem credibilemve dicamus.
2.32. I agree with this classification of its qualities, although Aristotle disagrees with Isocrates on one point, and pours scorn on his injunction to be brief, as though it were necessary that a statement should be either long or short and it were impossible to hit the happy mean. The followers of Theodorus on the other hand recognise only plausibility on the ground that it is not always expedient that our exposition should be either short or clear.
2.32. nobis placet divisio; quanquam et Aristoteles ab Isocrate parte in una dissenserit praeceptum brevitatis irridens, tanquam necesse sit longam esse aut brevem expositionem nec liceat ire per medium, Theodorei quoque solam relinquant ultimam partem, quia nec breviter utique nec dilucide semper sit utile exponere.
2.33. It will be necessary therefore for me to devote some care to the differentiation of the various features of this portion of a speech, in order that I may show under what circumstances each is specially useful. The statement will be either wholly in our favour or wholly in that of our opponent or a mixture of both. If it is entirely in our own favour, we may rest content with the three qualities just mentioned, the result of which is to make it easier for the judge to understand, remember and believe what we say.
2.33. diligentius distinguenda sunt singula, ut quid quoque loco prosit ostendam. est aut tota pro nobis aut tota pro adversariis aut mixta ex utrisque. erit tota pro nobis, contenti sumus his tribus partibus per quas efficitur, quo facilius iudex intelligat, meminerit, credat.
2.34. Now I should regret that anyone should censure my conduct in suggesting that a statement which is wholly in our favour should be plausible, when as a matter of fact it is true. There are many things which are true, but scarcely credible, just as there are many things which are plausible though false. It will therefore require just as much exertion on our part to make the judge believe what we say when it is true as it will when it is fictitious.
2.34. quisquam reprehensione dignum putet, quod proposuerim eam, quae sit tota pro nobis, debere esse verisimilem, cum vera sit. enim plurima uera quidem, sed parum credibilia, sicut falsa quoque frequenter verisimilia. non minus laborandum est, ut iudex, quae vere dicimus quam quae fingimus, credat.
2.35. These good qualities, which I have mentioned above, do not indeed cease to be virtues in other portions of the speech; for it is our duty to avoid obscurity in every part of our pleading, to preserve due proportion throughout and to say nothing save what is likely to win belief. But they require special observance in that portion of the speech which is the first from which the judge can learn the nature of the case: if at this stage of the proceedings he fails to understand, remember or believe what we say, our labour is but lost in the remainder of the speech.
2.35. quidem hae, quas supra retuli, virtutes aliarum quoque partium. et per totam actionem vitanda est obscuritas et modus ubique custodiendus, et credibilia esse omnia oportet quae dicuntur. tamen haec in ea parte custodienda sunt, quae prima iudicem docet; in qua si acciderit, ut aut non intelligat aut non meminerit aut non credat, frustra in reliquis laborabimus.
2.36. We shall achieve lucidity and clearness in our statement of facts, first by setting forth our story in words which are appropriate, significant and free from any taint of meanness, but not on the other hand farfetched or unusual, and secondly by giving a distinct account of facts, persons, times, places and causes, while our delivery must be adapted to our matter, so that the judge will take in what we say with the utmost readiness.
2.36. autem narratio aperta atque dilucida, si fuerit primum exposita verbis propriis et significantibus et non sordidis quidem, non tamen exquisitis et ab usu remotis, tum distincta rebus, personis, temporibus, locis, causis, ipsa etiam pronuntiatione in hoc accommodata, ut iudex quae dicentur quam facillime accipiat.
2.37. This latter virtue is disregarded by the majority of speakers who are used to the noisy applause of a large audience, whether it be a chance gathering or an assembly of claqueurs, and consequently are unnerved by the attentive silence of the courts. They feel that they have fallen short of eloquence, if they do not make everything echo with noise and clamour; they think that to state a matter simply is suited only to everyday speech such as falls within the capacity of any uneducated man, while all the time it is hard to say whether they are less willing or less capable of performing a task which they despise on account of its supposed easiness.
2.37. quidem virtus negligitur a plurimis, qui ad clamorem dispositae vel etiam forte circumfusae multitudinis compositi non ferunt illud intentionis silentium nec sibi diserti videntur, nisi omnia tumultu et vociferatione concusserint; rem indicate sermonis cotidiani et in quemcumque etiam indoctorum cadentis existimant, cum interim, quod tanquam facile contemnunt, nescias, praestare minus velint an possint.
2.38. For even when they have tried everything, they will never find anything more difficult in the whole range of oratory than that which, once heard, all think they would have said,— a delusion due to the fact that they regard what has been said as having no merit save that of truth. But it is just when an orator gives the impression of absolute truth that he is speaking best.
2.38. enim aliud in eloquentia, cuncta experti, difficilius reperient quam id, quod se fuisse dicturos omnes putant, postquam audierunt, quia non bona iudicant esse illa, sed vera. autem optime dicit orator, cum videtur vera dicere. nunc, velut campum nacti expositionis, hic potissimum et vocem flectunt et cervicem reponunt et brachium in latus iactant totoque et rerum et verborum et compositionis genere lasciviunt;
2.39. As it is, when such persons as these get a fair field for stating their case, they select this as the precise occasion for affected modulations of the voice, throwing back their heads, thumping their sides and indulging in every kind of extravagance of statement, language and style. As a result, while the speech, from its very monstrosity, meets with applause, the case remains unintelligible. However, let us pass to another subject; my aim is to win favour for pointing out the right road rather than to give offence by rebuking such perversity.
2.39. deinde, quod sit monstro simile, placet actio, causa non intelligitur. haec omittamus, ne minus gratiae praecipiendo recta quam offensae reprehendendo prava mereamur.
2.40. The statement of facts will be brief, if in the first place we start at that point of the case at which it begins to concern the judge, secondly avoid irrelevance, and finally cut out everything the removal of which neither hampers the activities of the judge nor harms our own case.
2.40. erit narratio ante omnia, si inde coeperimus rem exponere, unde ad iudicem pertinet; deinde, si nihil extra causam dixerimus; tum etiam,si reciderimus omnia, quibus sublatis neque cognitioni quidquam neque utilitati detrahatur.
2.41. For frequently conciseness of detail is not inconsistent with length in the whole. Take for instance such a statement as the following: “I came to the harbour, I saw a ship, I asked the cost of a passage, the price was agreed, I went on board, the anchor was weighed, we loosed our cable and set out.” Nothing could be terser than these assertions, but it would have been quite sufficient to say “I sailed from the harbour.” And whenever the conclusion gives a sufficiently clear idea of the premisses, we must be content with having given a hint which will enable our audience to understand what we have left unsaid.
2.41. enim quaedam esse partium brevitas, quae longam tamen efficit summam. portum veni, navem prospexi, quanti veheret interrogavi, de pretio convenit, conscendi, sublatae sunt ancorae, solvimus oram, profecti sumus. horum dici celerius potest, sed sufficit dicere e portu navigavi. quotiens exitus rei satis ostendit priora, debemus hoc esse contenti, quo reliqua intelliguntur., cum dicere liceat, mihi filius iuvenis, omnia illa supervacua: ego liberorum uxorem duxi, natum filium sustuli, educavi, in adolescentiam perduxi.
2.42. Consequently when it is possible to say “I have a young son,” it is quite superfluous to say, “Being desirous of children I took a wife, a son was born whom I acknowledged and reared and brought up to manhood.” For this reason some of the Greeks draw a distinction between a concise statement (the word they use is σύντομος ) and a brief statement, the former being free from all superfluous matter, while the latter may conceivably omit something that requires to be stated.
2.42. Graecorum aliqui aliud circumcisam expositionem, id est σύντομον, aliud brevem putaverunt, quod illa supervacuis careret, haec posset aliquid ex necessariis desiderare.
2.43. Personally, when I use the word brevity, I mean not saying less, but not saying more than occasion demands. As for repetitions and tautologies and diffuseness, which some writers of textbooks tell us we must avoid, I pass them by; they are faults which we should shun for other reasons beside our desire for brevity.
2.43. autem brevitatem in hoc ponimus, non ut minus, sed ne plus dicatur quam oporteat. iterationes quidem et ταυτολογίας et περισσολογίας, quas in narratione vitandas quidam scriptores artium tradiderunt, transeo; sunt enim haec vitia non tantum brevitatis gratia refugienda.
2.44. But we must be equally on our guard against the obscurity which results from excessive abridgment, and it is better to say a little more than is necessary than a little less. For though a diffuse irrelevance is tedious, the omission of what is necessary is positively dangerous.
2.44. minus autem cavenda erit, quae nimium corripientes omnia sequitur, obscuritas, satiusque est aliquid narrationi superesse quam deesse. supervacua cum taedio dicuntur, necessaria cum periculo subtrahuntur.
2.45. We must therefore avoid even tile famous terseness of Sallust (though in his case of course it is a merit), and shun all abruptness of speech, since a style which presents no difficulty to a leisurely reader, flies past a hearer and will not stay to be looked at again; and whereas the reader is almost always a man of learning, the judge often comes to his panel from the country side and is expected to give a decision on what he can understand. Consequently we must aim, perhaps everywhere, but above all in our statement of facts, at striking the happy mean in our language, and the happy mean may be defined as saving just what is necessary and just what is sufficient.
2.45. vitanda est etiam illa Sallustiana, quanquam in ipso virtutis obtinet locum, brevitas et abruptum sermonis genus, quod otiosum fortasse lectorem minus fallat, audientem transvolat nec dum repetatur exspectat, cum praesertim lector non fere sit nisi eruditus, iudicem rura plerumque in decurias mittant de eo pronuntiaturum quod intellexerit; ut fortasse ubicunque, in narratione tamen praecipue, media haec tenenda sit via dicendi quantum opus est et quantum satis est.
2.46. By “just what is necessary” I mean not the bare minimum necessary to convey our meaning; for our brevity must not be devoid of elegance, without which it would be merely uncouth: pleasure beguiles the attention, and that which delights us ever seems less long, just as a picturesque and easy journey tires us less for all its length than a difficult short cut through an arid waste.
2.46. opus est autem non ita solum accipi volo, quantum ad indicandum sufficit, quia non inornata debet esse brevitas, alioqui sit indocta; nam et fallit voluptas et minus longa quae delectant videntur, ut amoenum ac molle iter, etiamsi est spatii amplioris, minus fatigat quam durum aridumque compendium.
2.47. And I would never carry my desire for brevity so far as to refuse admission to details which may contribute to the plausibility of our narrative. Simplify and curtail your statement of facts in every direction and you will turn it into something more like a confession. Moreover, the circumstances of the case will often necessitate a long statement of facts, in which case, as I have already enjoined, the judge should be prepared for it at the conclusion of the exordium. Next we must put forth all our art either to shorten it or to render it less tedious.
2.47. mihi unquam tanta fuerit cura brevitatis, ut non ea, quae credibilem faciunt expositionem, inseri velim. enim et undique praecisa non tam narratio vocari potest quam confessio. porro multae condicione ipsa rei longae narrationes, quibus extrema (ut praecepi) prooemii parte ad intentionem praeparandus est iudex; deinde curandum, ut omni arte vel ex spatio eius detrahamus aliquid vel ex taedio.
2.48. We must do what we can to make it less long by postponing some points, taking care however to mention what it is that we propose to postpone. Take the following as an example. “As regards his motives for killing him, his accomplices and the manner in which he disposed his ambush, I will speak when I come to the proof.” Some things indeed may be omitted altogether from our marshalling of the facts, witness the following example from Cicero, “Fulcinius died; there are many circumstances which attended that event, but as they have little bearing on this case, I shall pass them by.” Division of our statement into its various heads is another method of avoiding tedium: for example, “I will tell you first what preceded this affair, then what occurred in its actual development, and finally you shall hear its sequel.”
2.48. minus longa sit, efficiemus quae poterimus differendo, non tamen sine mentione eorum, quae differemus: causas occidendi habuerit, quos adsumpserit conscios, quemadmodum disposuerit insidias, probationis loco dicam. vero ex ordine praetermittenda, quale est apud Ciceronem: Fulcinius; multa enim, quae sunt in re, quia remota sunt a causa, praetermittam. partitio taedium levat: quae acta sint ante ipsum rei contractum, dicam quae in re ipsa, dicam quae postea.