2.50. Such a division will give the impression of three short statements rather than of one long one. At times it will be well to interrupt our narrative by interjecting some brief remark like the following: “You have heard what happened before: now learn what follows.” The judge will be refreshed by the fact that we have brought our previous remarks to a close and will prepare himself for what may be regarded as a fresh start.
2.50. tres potius modicae narrationes videbuntur quam una longa. expediet expositiones brevi interfatione distinguere: quae ante acta sunt, accipite nunc quae insequuntur. enim iudex priorum fine et se velut ad novum rursus initium praeparabit.
2.51. If however after employing all these artifices our array of facts is still long, it will not be without advantage to append a summary at the end of it as a reminder: Cicero does this even at the close of a brief statement of facts in the pro Ligario: “To this day, Caesar, Quintus Ligarius is free from all blame: he left his home not merely without the least intention of joining in any war, but when there was not the least suspicion of any war etc.”
2.51. tamen adhibitis quoque his artibus in longum exierit ordo rerum, erit non inutilis in extrema parte commonitio; quod Cicero etiam in brevi narratione fecit:, Caesar, Q. Ligarius omni culpa caret; domo est egressus non modo nullum ad bellum sed ne ad minimum i quidem belli suspicionem et cetera.
2.52. The statement of fact will be credible, if in the first place we take care to say nothing contrary to nature, secondly if we assign reasons and motives for the facts on which the inquiry turns (it is unnecessary to do so with the subsidiary facts as well), and if we make the characters of the actors in keeping with the facts we desire to be believed: we shall for instance represent a person accused of theft as covetous, accused of adultery as lustful, accused of homicide as rash, or attribute the opposite qualities to these persons if we are defending them: further we must do the same with place, time and the like.
2.52. autem erit narratio ante omnia, si prius consuluerimus nostrum animum, ne quid naturae dicamus adversum, deinde si causas ac rationes factis praeposuerimus, non omnibus sed de quibus quaeritur, si personas convenientes iis, quae facta credi volemus, constituerimus, ut furti reum cupidum, adulterii libidinosum, homicidii temerarium, vel his contraria, si defendemus; praeterea loca, tempora et similia.
2.53. It is also possible to treat the subject in such a way as to give it an air of credibility, as is done in comedy and farce. For some things have such natural sequence and coherence that, if only the first portion of your statement is satisfactory, the judge will himself anticipate what you have got to say in the later part.
2.53. autem quidam et ductus rei credibilis, qualis in comoediis etiam et in minis. enim naturaliter sequuntur et cohaerent ut, si priora bene narraveris, iudex ipse quod postea sis narraturus exspectet.
2.54. It will also be useful to scatter some hints of our proofs here and there, but in such a way that it is never forgotten that we are making a statement of facts and not a proof. Sometimes, however, we must also support our assertions by a certain amount of argument, though this must be short and simple: for instance in a case of poisoning we shall say, “He was perfectly well when he drank, he fell suddenly to the ground, and blackness and swelling of the body immediately supervened.”
2.54. illud quidem fuerit inutile, semina quaedam probationum spargere, verum sic ut narrationem esse meminerimus non probationem. tamen etiam argumento aliquo confirmabimus, quod proposuerimus, sed simplici et brevi, ut in veneficiis: bibit, statim concidit, livor ac tumor confestim est insecutus.
2.55. The same result is produced by preparatory remarks such as the following: “The accused is a strong man and was fully armed, while his opponents were weak, unarmed and suspecting no evil.” We may in fact touch on everything that we propose to produce in our proof; while making our statement of facts, as for instance points connected with persons, cause, place, time, the instrument and occasion employed.
2.55. faciunt et illae praeparationes, cum reus dicitur robustus, armatus contra infirmos, inermes, securos. denique, quae probation tractaturi sumus, personam, causam, locum, tempus, instrumentum, occasionem, narratione delibabimus.
2.56. Sometimes, when this resource is unavailable, we may even confess that the charge, though true, is scarcely credible, and that therefore it must be regarded as all the more atrocious; that we do not know how the deed was done or why, that we are filled with amazement, but will prove our case.
2.56. , si destituti fuerimus his, etiam fatebimur vix esse credibile, sed verum et hoc maius habendum scelus; nescire nos quomodo factum sit aut quare, mirari sed probaturos.
2.57. The best kind of preparatory remarks are those which cannot be recognised as such: Cicero, for instance, is extraordinarily happy in the way he mentions in advance everything that shows that Clodius lay in wait for Milo and not Milo for Clodius. The most effective stroke of all is his cunning feint of simplicity: “Milo, on the other hand, having been in the senate all day till the house rose, went home, changed his shoes and clothes, and waited for a short time, while his wife was getting ready, as is the way with women.”
2.57. vero praeparationes erunt quae latuerint, it a Cicerone sunt quidem utilissime praedicta omnia, per quae Miloni Clodius non Clodio Milo insidiatus esse videatur; plurimum tamen facit illa callidissima simplicitatis imitatio: Milo autem, cum in senate fuisset eo die, ( quoad senatus est dimissus, domum venit, calceos et vestimenta mutauit, paulisper, dum se uxor, ut fit, comparat, commoratus est.
2.58. What an absence of haste and premeditation this gives to Milo's proceedings. And the great orator secures this effect not merely by producing facts which indicate the slow and tardy nature of Milo's departure, but by the use of the ordinary language of everyday speech and a careful concealment of his art. Had he spoken otherwise, his words would by their very sound have warned the judge to keep an eye on the advocate.
2.58. nihil festinato, nihil praeparato fecisse videtur Milo! non solum rebus ipsis vir eloquentissimus, quibus moras et lentum profectionis ordinem ducit, sed verbis etiam vulgaribus et cotidianis et arte occulta consecutus est; quae si aliter dicta essent, strepitu ipso iudicem ad custodiendum patronum excitassent.
2.59. The majority of readers regard this passage as lacking in distinction, but this very fact merely serves to show how the art which is scarce detected by a reader succeeded in hoodwinking the judge. It is qualities of this kind that make the statement of facts credible.
2.59. videntur ista plerisque, sed hoc ipso manifestum est, quomodo iudicem fefellerit, quod vix a lectore deprehenditur. sunt quae credibilem faciant expositionem.
2.60. If a student requires to be told that we must avoid contradiction and inconsistency in our statement of facts, it will be vain to attempt to instruct him on the remaining points, although some writers of text-books produce this precept as if it were a mystery only discovered by their own personal penetration.
2.60. id quidem, ne qua contraria aut sibi repugnantia in narratione dicamus, si cui praecipiendum est, is reliqua frustra docetur, etiamsi quidam scriptores artium hoc quoque tanquam occultum et a se prudenter erutum tradunt.
2.61. To these three qualities some add magnificence of diction or μεγαλοπρέπεια as they call it this quality is not, however, suitable to all cases. For what place has language that rises above the ordinary level in the majority of private suits dealing with loans, letting and hiring and interdicts? Nor yet is it always expedient, as may be inferred from the passage just cited from the pro Milone.
2.61. tribus narrandi virtutibus adiiciunt quidam magnificentiam, quam μεγαλοπρέπειαν vocant, quae neque in omnes causas cadit (nam quid in plerisque iudiciis privatis, de certa credita, locato et conducto, interdictis habere loci potest supra modum se tollens oratio?) neque semper est utilis, velut proximo exemplo Miloniano patet.
2.62. We must remember, too, that there are many cases in which confession, excuse or modification are necessary with regard to our statements: and magnificence is a quality wholly out of keeping with such procedure. Magnificence of diction is therefore no more specially appropriate to the statement of facts than language calculated to excite pity or hatred, or characterised by dignity, charm or wit. Each of these qualities is admirable in its proper place, but none can be regarded as the peculiar and inalienable property of this portion of the speech.
2.62. meminerimus multas esse causas, in quibus confitendum, excusandum, summittendum sit quod exponimus; quibus omnibus aliena est illa magnificentiae virtus. non magis proprium narrationis est magnifice dicere quam miserabiliter, invidiose, graviter, dulciter, urbane; quae, cum suo quoque loco sint laudabilia, non sunt huic parti proprie adsignata et velut dedita.
2.63. Theodectes asserts that the statement of facts should not merely be magnificent, but attractive in style. But this quality again though suitable enough to the statement of facts, is equally so in other portions of the speech. There are others who add palpability, which the Greeks call ἐνάργεια.
2.63. quoque ut narrationi apta, ita ceteris quoque partibus communis est virtus, quam Theodectes huic uni proprie dedit; non enim magnificam modo vult esse, verum etiam iucundam expositionem. qui adiiciant his evidentiam, quae ἐνάργεια Graece vocatur.
2.64. And I will not conceal the fact that Cicero himself holds that more qualities are required. For in addition to demanding that it should be plain, brief and credible, he would have it clear, characteristic and worthy of the occasion. But everything in a speech should be characteristic and worthy of the occasion as far as possible. Palpalility, as far as I understand the term, is no doubt a great virtue, when a truth requires not merely to be told, but to some extent obtruded, still it may be included under lucidity. Some, however, regard this quality as actually being injurious at times, on the ground that in certain cases it is desirable to obscure the truth. This contention is, however, absurd.
2.64. ego quemquam deceperim, ut dissimulem Ciceroni quoque plures partes placere. praeterquam planam et brevem et credibilem vult esse evidentem, moratam cum dignitate. in oratione morata debent esse omnia cum dignitate, quae poterunt. in narratione, quantum ego intelligo, est quidem magna virtus, cum quid veri non dicendum, sed quodammodo etiam ostendendum est; sed subiici perspicuitati potest, quam quidam etiam contrariam interim putaverunt, quia in quibusdam causis obscuranda veritas esset; quod est ridiculum.
2.65. For he who desires to obscure the situation, will state what is false in lieu of the truth, but must still strive to secure an appearance of palpability for the facts which he narrates.
2.65. qui obscurare vult, narrat falsa pro veris, et in iis quae narrat debet laborare, ut videantur quam evidentissima.
2.66. A chance turn of the discussion has led us to a difficult type of statement of facts. I will therefore proceed to speak of those in which the facts are against us. Under such circumstances some have held that we should omit the statement of facts altogether. Nothing can be more easy, except perhaps to throw up the case altogether. But suppose you undertake a case of this kind with some good reason. It is surely the worst art to admit the badness of the case by keeping silence. We can hardly hope that the judge will be so dense as to give a decision in favour of a case which he knows we were unwilling to place before him.
2.66. quatenus etiam forte quadam pervenimus ad difficilius narrationum genus, iam de iis loquamur, in quibus res contra nos erit, quo loco nonnulli praetereundam narrationem putaverunt. sane nihil est facilius, nisi prorsus totam causam omnino non agere. si aliqua iusta ratione huiusmodi susceperis litem, cuius artis est malam esse causam silentio confiteri? nisi forte tam hebes futurus est iudex, ut secundum id pronuntiet, quod sciet narrare te noluisse.
2.67. I do not of course deny that just as there may be some points which you should deny in your statement of facts, others which you should add, and yet again others that you should alter, so there may be some which you should pass over in silence. But still only those points should be passed over which we ought and are at liberty to treat in this way. This is sometimes done for the sake of brevity, as in the phrase “He replied as he thought fit.”
2.67. infitias eo in narratione, ut aliqua neganda, aliqua adiicienda, aliqua mutanda, sic aliqua etiam tacenda; sed tacenda, quae tacere oportebit et liberum erit. fit nonnunquam brevitatis quoque gratia, quale illud est, quae ei visum est.
2.68. We must therefore distinguish between case and case. In those where there is no question of guilt but only of law, we may, even though the facts he against us, admit the truth. “He took money from the temple, but it was private property, and therefore he is not guilty of sacrilege. He abducted a maiden, but the father can have no option as to his fate. He assaulted a freeborn boy, and the latter hanged himself, but that is no reason for the author of the assault to be awarded capital punishment as having caused his death; he will instead pay 10,000 sesterces, the fine imposed by law for such a crime.” But even in making these admissions we may to some extent lessen the odium caused by the statement of our opponent. For even our slaves extenuate their own faults.
2.68. igitur genera causarum. in iis, in quibus non de culpa quaeretur sed de actione, etiamsi erunt contra nos themata, confiteri nobis licebit: de templo sustulit sed privatam, ideoque sacrilegus non est. rapuit, non tamen optio patri dabitur. stupravit et stupratus se suspendit, non tamen ideo stuprator capite ut causa mortis punietur, sed decem milia, quae poena stupratori constitute est, dabit. in his quoque confessionibus est aliquid, quod de invidia, quam expositio adversarii fecit, detrahi possit, cum etiam servi nostri de peccatis suis mollius loquantur.
2.70. In some cases, too, we may mitigate a bad impression by words which avoid the appearance of a statement of facts. We may say, for instance, “He did not, as our opponent asserts, enter the temple with the deliberate intention of theft nor seek a favourable occasion for the purpose, but was led astray by the opportunity, the absence of custodians, and the sight of the money (and money has always an undue influence on the mind of man), and so yielded to temptation. What does that matter? He committed the offence and is a thief. It is useless to defend an act to the punishment of which we can raise no objection.”
2.70. enim quasi non narrantes mitigabimus: quidem, ut adversarius dicit, consilium furti in templum attulit nec diu captavit eius rei tempus; sed occasione et absentia custodum corruptus et pecunia, quae nimium in animis hominum potest, victus est. quid refert? peccavit et fur est; nihil attinet id defendere, cuius poenam non recusamus.
2.71. Again we may sometimes go near condemning our client ourselves. “Do you wish me to say that you were under the influence of wine? that you made a mistake? that the darkness deceived you? That may be true. But still you committed an assault on a freeborn boy; pay your 10,000 sesterces.” Sometimes we may fortify our case in advance by a preliminary summary, from which we proceed to the full statement of facts.
2.71. quasi damnemus ipsi: te dicam vino impulsum? errore lapsum? nocte deceptum? vera sunt ista fortasse; tu tamen ingenuum stuprasti, solve decem milia. praepositione praemuniri potest causa, deinde exponi.
2.72. All the evidence points to the guilt of three sons who had conspired against their father. After drawing lots they entered their father's bedroom while he slept, one following the other in the order predetermined and each armed with a sword. None of them had the heart to kill him, he woke and they confessed all.
2.72. sunt omnia tribus filiis, qui in mortem patris coniurarant: sortiti nocte singuli per ordinem cum ferro cubiculum intrarunt patre dormiente; cum occidere eum nemo potuisset, excitato omnia indicarunt.
2.73. If, however, the father, who has divided his estate among them and is defending them when accused of parricide, pleads as follows: “As regards my defence against the law, it suffices to point out, that these young men are charged with parricide in spite of the fact that their father still lives and is actually appearing on behalf of his children. What need is there for me to set forth the facts as they occurred since the law does not apply to them? But if you desire me to confess my own guilt in the matter, I was a hard father to them and watched over my estate, which would have been better managed by them, with miserly tenacity.”
2.73. tamen pater, qui divisit patrimonium et reos parricidii defendit, sic agat: contra legem sufficit, parricidium obiicitur iuvenibus, quorum pater vivit atque etiam liberis suis adest. rei narrare quid necesse est, cum ad legem nihil pertineat? sed si confessionem culpae meae exigitis, fui pater durus et patrimonii, quod iam melius ab his administrari poterat, tenax custos;
2.74. And if he then should add, “they were spurred to attempt the crime by others who had more indulgent fathers; but their real feelings towards their father have been proved by the result; they could not bring themselves to kill him. It would have been quite unnecessary for them to take an oath to kill him, if they had really had the heart to do the deed, while the only explanation of their drawing lots is that each of them wished to avoid the commission of the crime.” If such were his pleading, all these pleas would, such as they are, find the judges all the more disposed to mercy, since the brief defence offered in the first summary statement would have paved the way for them.
2.74. deinde subiiciat stimulatos ab iis, quorum indulgentiores parentes erant, semper tamen habuisse eum animum, qui sit eventu deprehensus, ut occidere patrem non possent; neque enim iureiurando opus fuisse, si alioqui hoc mentis habuissent, nec sorte, nisi quod se quisque eximi voluerit, omnia haec qualiacunque placidioribus animis accipientur, illa brevi primae propositionis defensione mollita.
2.75. But if the question is whether an act has been committed or what its nature may be, even though everything be against us, how can we avoid a statement of facts without gross neglect of our case? The accuser has made a statement of facts facts, and has done so not merely in such a way as to indicate what was done, but has added such comments as might excite strong prejudice against us and made the facts seem worse than they are by the language which he has used. On the top of this have come the proofs, while the peroration has kindled the indignation of the judges and left them full of anger against us.
2.75. cum quaeritur an factum sit vel quale factum sit, licet omnia contra nos sint, quomodo tamen evitare expositionem salva causae ratione possumus? accusator neque ita ut, quae essent acta, tantum indicaret, sed adiecit invidiam, rem verbis exasperavit, accesserunt probationes, peroratio incendit et plenos irae reliquit. naturaliter iudex, quid narretur a nobis.
2.76. The judge naturally waits to hear what we can state in our behalf. If we make no statement, he cannot help believing that our opponent's assertions are correct and that their tone represents the truth. What are we to do then? Are we to restate the same facts? Yes, if the question turns on the nature of the act, as it will if there is no doubt about the commission, but we must restate them in a different way, alleging other motives and another purpose and putting a different complexion on the case.
2.76. nihil exponimus, illa esse quae adversarius dixit et talia qualia dixit credat necesse est. ergo? eadem exponemus? de qualitate agitur, cuius tum demum quaestio est, cum de re constat, eadem sed non eodem modo; alias causas, aliam mentem, aliam rationem dabo.
2.77. Some imputations we may mitigate by the use of other words; luxury will be softened down into generosity, avarice into economy, carelessness into simplicity, and I shall seek to win a certain amount of favour or pity by look, voice and attitude. Sometimes a frank confession is of itself sufficient to move the jury to tears. And I should like to ask those who differ from me whether they are prepared to defend what they have refused to state, or no.
2.77. elevare quaedam licebit; luxuria liberalitatis, avaritia parsimoniae, negligentia simplicitatis nomine lenietur; vultu denique, voce, habitu vel favoris aliquid vel miserationis merebor. nonnunquam movere lacrimas ipsa confessio. ego libenter interrogem, sint illa defensuri, quae non narraverint, necne?
2.78. For if they refuse either to defend or to state the facts, they will be giving away their whole case. If, on the other hand, they do propose to put in a defence, they must at least, as a rule, set forth what they intend to justify. Why then not state fully facts which can be got rid of and must in fact be pointed out to make that possible?
2.78. si neque defenderint neque narraverint, tota causa prodetur; at si defensuri sunt, proponere certe plerumque id, quod confirmaturi sumus, oportet. ergo non exponamus, quod et dilui potest et, ut hoc contingat, utique indicandum est?
2.79. Or again what difference is there between a proof and a statement of facts save that the latter is a proof put forward in continuous form, while a proof is a verification of the facts as put forward in the statement? Let us consider therefore whether under such circumstances the statement should not be somewhat longer and fuller than usual, since we shall require to make some preliminary remarks and to introduce certain special arguments (note that I say arguments, and not argumentation), while it will add greatly to the force of our defence if we assert not once nor twice that we shall prove what we say is true and that the significance of the facts cannot be brought out by one opening statement, bidding them wait, delay forming their opinions and hope for the best.
2.79. quid inter probationem et narrationem interest, nisi quod narratio est probationis continua propositio, rursus probatio narrationi congruens confirmatio? ergo, num haec expositio longior demum debeat esse et paulo verbosior praeparatione et quibusdam argumentis (argumentis dico, non argumentatione), cui tamen plurimum confert frequens adfirmatio effecturos nos quod dicimus; non posse vim rerum ostendi prima expositione; exspectent et opiniones suas differant et bene sperent.
2.80. Finally it is important to include in our statement anything that can be given a different complexion from that put upon it by our opponent. Otherwise even an exordium will be superfluous in a case of this kind. For what is its purpose if not to make the judge better disposed for the investigation of the case? And yet it will be agreed that the exordium is never more useful than when it is necessary to divert the judge from some prejudice that he has formed against us.
2.80. utique narrandum est, quidquid aliter quam adversarius exposuit narrari potest, aut etiam prooemia sunt in his causis supervacua; quae quid magis agunt, quam ut cognitioni rerum accommodatiorem iudicem faciant? constabit, nusquam esse eorum maiorem usum, quam ubi animus iudicis ab aliqua contra nos insita opinione flectendus est.
2.81. Conjectural cases, on the other hand—that is to say questions of fact—require a statement, which will more often deal with the circumstances from which a knowledge of the point at issue may be derived than with the actual point which is under trial. When the accuser states these circumstances in such a manner as to throw suspicion on the case for the defence, and the accused has consequently to dispel that suspicion, the facts must be presented to the judge in quite a different light by the latter.
2.81. autem causae, in quibus de facto quaeritur, non tam saepe rei, de qua indicium est, quam eorum, per quae res colligenda est, expositionem habent. cum accusator suspiciose narret, reus levare suspicionem debeat, aliter ab hoc atque ab illo ad iudicem perferri oportet.
2.82. But, it may be urged, some arguments are strong when put forward in bulk, but far less effective when employed separately. My answer is that this remark does not affect the question whether we ought to make a statement of fact, but concerns the question how it should be made. For what is there to prevent us from amassing and producing a number of arguments in the statement, if that is likely to help our cause? Or from subdividing our statement of facts and appending the proofs to their respective sections and so passing on to what remains to be said?
2.82. enim quaedam argumenta turba valent, diducta leviora sunt. quidem non eo pertinet, ut quaeratur an narrandum, sed quomodo narrandum sit. et congerere plura in expositione quid prohibet, si id utile est causae, et promittere, sed et dividere narrationem et probationes subiungere partibus atque ita transire ad sequentia?
2.83. Neither do I agree with those who assert that the order of our statement of facts should always follow the actual order of events, but have a preference for adopting the order which I consider most suitable. For this purpose we can employ a variety of figures. Sometimes, when we bring up a point in a place better suited to our purpose, we may pretend that it had escaped our notice; occasionally, too, we may inform the judge that we shall adhere to the natural order for the remainder of our statement, since by so doing we shall make our case clearer, while at times after stating a fact, we may append the causes which preceded it.
2.83. ne iis quidem accedo, qui semper eo putant ordine, quo quid actum sit, esse narrandum, sed eo malo narrare, quo expedit. fieri plurimis figuris licet. et aliquando nobis excidisse simulamus, cum quid utiliore loco reducimus, et interim nos reddituros reliquum ordinem testamur, quia sic futura sit causa lucidior; interim re exposita subiungimus causas quae antecesserunt.
2.84. For there is no single law or fixed rule governing the method of defence. We must consider what is most advantageous in the circumstances and nature of the case, and treat the wound as its nature dictates, dressing at once or, if the dressing can be delayed, applying a temporary bandage.
2.84. enim est una lex defensionis certumque praescriptum; pro re, pro tempore intuenda quae prosint, atque ut erit vulnus, ita vel curandum protinus vel, si curatio differri potest, interim deligandum.
2.85. Again I do not regard it as a crime to repeat a statement of a fact more than once, as Cicero does in the pro Cluentio. It is not merely permissible, but sometimes necessary, as in trials for extortion and all complicated cases; and only a lunatic will allow a superstitious observance of rules to lead him counter to the interests of his case.
2.85. saepius narrare duxerim nefas, quod Cicero pro Cluentio fecit; estque non concessum modo, sed aliquando etiam necessarium, ut in causis repetundarum omnibusque quae simplices non sunt. est enim superstitione praeceptorum contra rationem causae trahi.
2.86. The reason for placing the statement of facts before the proof is to prevent the judge from being ignorant of the question at issue. Why then, if each individual point has to be proved or refuted, should not each individual point be stated as well? If my own experience may be trusted, I know that I have followed this practice in the courts, whenever occasion demanded it, and my procedure has been approved both by learned authorities and the judges themselves, while the duty of setting forth the case was generally entrusted to me. I am not boasting, for there are many with whom I have been associated as counsel, who can bring me to book if I lie.
2.86. ideo ante probationes ponere est institutum, ne iudex, qua de re quaeratur, ignoret. igitur, si singula probanda aut refellenda erunt, non singula etiam narrentur? certe, quantacunque nostris experimentis habenda est fides, fecisse hoc in foro, quotiens ita desiderabat utilitas, probantibus et eruditis et iis, qui iudicabant, scio; et (quod non arroganter dixerim, quia sunt plurimi, quibuscum egi, qui me refellere possint, si mentiar) fere ponendae a me causae officium exigebatur.
2.87. On the other hand this is no reason for not following the order of events as a general rule. Indeed inversion of the order has at times a most unhappy effect, as for example if you should mention first that a woman has brought forth and then that she has conceived, or that a will has been read and then that it has been signed. In such cases, if you should happen to have mentioned the later incident, it is better to say nothing about the former, which must quite obviously have come first.
2.87. ideo tamen non id saepius facere oportebit, ut rerum ordinem sequamur. vero etiam turpiter convertuntur, ut si peperisse narres, deinde concepisse; apertum testamentum, deinde signatum; in quibus si id, quod posterius est, dixeris, de priore tacere optimum; palam est enim praecessisse.
2.88. Sometimes, too, we get false statements of facts; these, as far as actual pleading in the courts is concerned, fall into two classes. In the first case the statement depends on external support; Publius Clodius, for instance, relied on his witnesses when he stated that he was at Interamna on the night when he committed abominable sacrilege at Rome. The other has to be supported by the speaker's native talent, and sometimes consists simply in an assumption of modesty, which is, I imagine, the reason why it is called a gloss, while at other times it will be concerned with the question at issue.
2.88. quaedam et falsae expositiones, quarum in foro duplex genus est: alterum, quod instrumentis adiuvatur, ut P. Clodius fiducia testium, qua nocte incestum Romae commiserat, Interamnae se fuisse dicebat; alterum, quod est tuendum dicentis ingenio. interim ad solam verecundiam pertinet, unde etiam mihi videtur dici color, interim ad quaestionem.
2.89. Whichever of these two forms we employ, we must take care, first that our fiction is within the bounds of possibility, secondly that it is consistent with the persons, dates and places involved and thirdly that it presents a character and sequence that are not beyond belief: if possible, it should be connected with something that is admittedly true and should be supported by some argument that forms part of the actual case. For if we draw our fictions entirely from circumstances lying outside the case, the liberty which we have taken in resorting to falsehood will stand revealed.
2.89. utrumcunque erit, prima sit curarum, ut id quod fingemus fieri possit; deinde, ut et personae et loco et tempori congruat et credibilem rationem et ordinem habeat; si continget, etiam verae alicui rei cohaereat aut argumento, quod sit in causa, confirmetur. quae tota extra rem petita sunt, mentiendi licentiam produnt.
2.90. Above all we must see that we do not contradict ourselves, a slip which is far from rare on the part of spinners of fiction: for some things may put a most favourable complexion on portions of our case, and yet fail to agree as a whole. Further, what we say must not be at variance with the admitted truth. Even in the schools, if we desire a gloss, we must not look for it outside the facts laid down by our theme.
2.90. praecipue, (quod fingentibus frequenter excidit) ne qua inter se pugnent; quaedam enim partibus blandiuntur, sed in summam non consentiunt; praeterea, ne iis, quae vera esse constabit, adversa sint; in schola etiam, ne color extra themata quaeratur.
2.91. In either case the orator should bear clearly in mind throughout his whole speech what the fiction is to which he has committed himself, since we are apt to forget our falsehoods, and there is no doubt about the truth of the proverb that a liar should have a good memory.
2.91. autem orator meminisse debebit actione tota, quid finxerit, quoniam solent excidere quae falsa sunt, verumque est illud, quod vulgo dicitur, mendacem memorem esse oportere.
2.92. But whereas, if the question turns on some act of our own, we must make one statement and stick to it, if it turns on an act committed by others, we may cast suspicion on a number of different points. In certain controversial themes of the schools, however, in which it is assumed that we have put a question and received no reply, we are at liberty to enumerate all the possible answers that might have been given.
2.92. autem, si de nostro facto quaeratur, unum nobis aliquid esse dicendum; si de alieno, mittere in plura suspiciones licere. tamen quibusdam scholasticis controversiis, in quibus ponitur aliquem non respondere quod interrogator, libertas omnia enumerandi, quae responderi potuissent.
2.93. But we must remember only to invent such things as cannot be checked by evidence: I refer to occasions when we make our own minds speak (and we are the only persons who are in their secret) or put words in the mouth of the dead (for what they say is not liable to contradiction) or again in the mouth of someone whose interests are identical with ours (for he will not contradict), or finally in the mouth of our opponent (for he will not be believed if he does deny).
2.93. vero meminerimus ea, quae non cadant in testem. autem haec, quae a nostro dicuntur animo, cuius ipsi tantum conscii sumus; item quod a defunctis, nec hoc enim est qui neget; itemque ab eo cui idem expediet, is enim non negabit; ab adversario quoque, quia non est habiturus in negando fidem.
2.94. Glosses drawn from dreams and superstitions have long since lost their value, owing to the very ease with which they can be invented. But it will avail us little to use glosses in a statement of fact, unless they are consistent throughout the whole of our speech, more especially as certain things can only be proved by persistent assertion.
2.94. et superstitionum colores ipsa iam facilitate auctoritatem perdiderunt. est autem satis in narratione uti coloribus, nisi per totam actionem consentiant, cum praesertim quorundam probatio sola sit in adseveratione et perseverantia;
2.95. Take for instance the case of the parasite who claims as his son a young man who has been thrice disinherited by a wealthy father and thrice restored to his own. He will be able to put forward as a gloss or plea that poverty was the reason why he exposed the child, that he assumed the role of a parasite because his son was in the house in question and, lastly, that the reason why the young man was thrice disinherited was simply that he was not the son of the man who disinherited him.
2.95. ut ille parasitus, qui ter abdicatum a divite iuvenem et absolutum tanquam suum filium asserit, habebit quidem colorem, quo dicat et paupertatem sibi causam exponendi fuisse et ideo a se parasiti personam esse susceptam, quia in illa domo filium haberet; et ideo illum ter innocentem abdicatum, quia filius abdicantis non esset.
2.96. But unless every word that he utters reveals an ardent paternal affection, hatred for his wealthy opponent and anxiety on behalf of the youth, who will, he knows, be exposed to serious danger if he remains in the house where he is the victim of such dislike, he will be unable to avoid creating the suspicion that he has been suborned to bring the action.
2.96. tamen in omnibus verbis et amorem patrium atque hunc quidem ardentissimum ostenderit et odium divitis et metum pro invene, quem periculose mansurum in illa domo, in qua tam invisus sit, sciat, suspicione subiecti petitoris non carebit.
2.97. It sometimes happens in the controversial themes of the schools, though I doubt whether it could ever occur in the courts, that both sides employ the same gloss and support it on their own behalf.
2.97. aliquando in scholasticis controversiis, quod in foro an possit accidere dubito, ut eodem colore utraque pars utatur, deinde eum pro se quaeque defendat, ut in ilia controversia:
2.98. An example of this may be found in the theme which runs as follows. “A wife has stated to her husband that her stepson has attempted to seduce her and that a time and place have been assigned for their meeting: the son has brought the same charge against his stepmother, with the exception that a different time and place are mentioned. The father finds the son in the place mentioned by the wife, and the wife in the place mentioned by the son. He divorces her, and then, as she says nothing in her own defence, disinherits the son.” No defence can be put forward for the son which is not also a defence of the stepmother.
2.98. marito dixit, appellatam se de stupro a privigno et sibi constitutum tempus et locum; eadem contra filius detulit de noverca, edito tantum alio tempore ac loco; pater in eo, quem uxor praedixerat, filium invenit, in eo, quem filius, uxorem; illam repudiavit, qua tacente filium abdicat. dici potest pro iuvene, quod non idem sit pro noverca.
2.99. However, what is common to both sides of the case will be stated, and then arguments will be drawn from a comparison of the characters of the two parties, from the order in which they laid information against each other and from the silence of the divorced wife.
2.99. tamen etiam communia; deinde ex personarum comparatione et indicii ordine et silentio repudiatae argumenta ducentur.
2.100. Still we must not ignore the fact that there are some cases which do not admit of any form of gloss, but must be defended forthright. An example is provided by the case of the rich man who scourged the statue of a poor man who was his enemy, and was subsequently indicted for assault. Here no one can deny that the act was outrageous, but it may be possible to maintain that it is not punishable by law.
2.100. illud quidem ignorare oportet, quaedam esse quae colorem non recipiant, sed tantum defendenda sint, qualis est ille dives, qui statuam pauperis inimici flagellis cecidit et reus est iniuriarum; nam factum eius modestum esse nemo dixerit, fortasse ut sit tutum obtinebit.
2.101. If, however, part of the statement of facts tells in our favour and part against us, we must consider whether in view of the circumstances of the case the parts in question should be blent or kept apart. If the points which are damaging to our case be in the majority, the points which are in its favour will be swamped. Under those circumstances it will be best to keep them apart and, after setting forth and proving the points which help our case, to meet the rest by employing the remedies mentioned above.
2.101. pars expositionis pro nobis, pars contra nos erit, miscenda sit an separanda narratio, cum ipsa condicione causae deliberandum est. si plura sunt quae nocent, quae prosunt obruuntur. tunc dividere optimum erit, et iis, quae partem nostram adiuvabunt, expositis et confirmatis, adversus reliqua uti remediis, de quibus supra dictum est Si plura proderunt, etiam coniungere licebit, ut quae obstant in mediis velut auxiliis nostris posita minus habeant virium.
2.102. If, on the other hand, it be the points in our favour which predominate, we may even blend them with the others, since thus the traitors in our camp will have less force. None the less these points, both good and bad, must not be set forth naked and helpless: those in our favour must be supported by some argument, and then reasons must be added why the points which tell against us should not be believed; since if we do not distinguish clearly between the two, it is to be feared that those which are favourable may suffer from their bad company.
2.102. tamen non erunt nuda ponenda, sed ut et nostra aliqua argumentatione firmemus et diversa cur credibilia non sint adiiciamus; quia, nisi distinxerimus, verendum est, ne bona nostra permixtis malis inquinentur.
2.103. Further rules are laid down with regard to the statement of fact, forbidding us to indulge in digression, apostrophe or argumentation or to put our words into the mouths of others. Some even add that we should make no appeal to the passions. These rules should for the most part be observed, indeed they should never be infringed unless the circumstances absolutely demand it.
2.103. quoque de narratione praecipi solent, ne qua ex ea fiat excursio, ne avertatur a iudice sermo, ne alienae personae vocem demus, ne argumentemur; adiiciunt quidam etiam, ne utamur adfectibus; quorum pleraque sunt frequentissime custodienda, immo nunquam, nisi ratio coegerit, mutanda.
2.104. If our statement is to be clear and brief, almost anything can be justified sooner than digression. And if we do introduce a digression, it must always be short and of such a nature that we give the impression of having been forced from our proper course by some uncontrollable emotion. The passage in Cicero about the marriage of Sasia is a good example of this.
2.104. sit expositio perspicua et brevis, nihil quidem tam raro poterit habere rationem quam excursio; nec unquam debebit esse nisi brevis et talis, ut vi quadam videamur adfectus velut recto itinere depulsi, qualis est Ciceronis circa nuptias Sasiae:
2.105. “What incredible wickedness in a woman! Unheard of in the history of mankind till she dared the sin! What unbridled and unrestrained lust, what amazing daring! One might have thought that, even if she had no regard for the vengeance of heaven and the opinion of man, she would at least have dreaded that night of all nights and those torches that lighted her to the bridal bed: that she would have shrunk in horror from the threshold of her chamber, from her daughter's room and the very walls that had witnessed her former marriage.”
2.105. O mulieris scelus incredibile et praeter hanc unam in omni uita inauditum! O libidinem effrenatam et indomitam! O audaciam singularem! nonne timuisse, si minus vim deorum hominumque famam, at illam ipsam noctem facesque illas nuptiales non limen cubiculi non cubile filiae non parietes denique ipsos, superiorum testes nuptiarum vero aversus a iudice et brevius indicat interim et coarguit magis, de qua re idem, quod in prooemio dixeram, sentio, sicut de prosopopoeia quoque;
2.106. As to addressing another in place of the judge, it may be a means of making a point with greater brevity and give it greater force. On this subject I hold the same view that I expressed in dealing with the exordium, as I do on the subject of impersonation. This artifice however is employed not only by Servius Sulpicius in his speech on behalf of Aufidia, when he cries “Am I to suppose that you were drowsed with sleep or weighed down by some heavy lethargy?” but by Cicero as well, when in a passage which, like the above, belongs to the statement of facts, in speaking of the ships' captains he says, “You will give so much to enter, etc.”
2.106. qua tamen non Servius modo Sulpicius utitur pro Aufidia: te languidum an gravi lethargo putem pressum? sed M. quoque Tullius circa nauarchos, (nam ea quoque rei expositio est) adeas, tantum dabis, et reliqua.
2.107. Again in the pro Clueniio does not the conversation between Staienus and Bulbus conduce to speed and enhance the credibility of the statements? In case it should be thought that Cicero did this without design (quite an incredible supposition in his case), I would point out that in the Partitiones he lays it down that the statement of facts should be characterised by passages which will charm and excite admiration or expectation, and marked by unexpected turns, conversations between persons and appeals to every kind of emotion.
2.107. ? pro Cluentio, Staieni Bulbique colloquium nonne ad celeritatem plurimum et ad fidem confert? ne fecisse inobservantia quadam videatur, quanquam hoc in illo credibile non est, in Partitionibus praecepit, ut habeat narratio suavitatem, admirationes, exspectationes, exitus inopinatos, colloquia personarum, omnes adfectus.
2.108. We shall, as I have already said, never argue points in the statement of facts, but we may sometimes introduce arguments, as for example Cicero does in the pro Ligario, when he says that he ruled his province in such a way that it was to his interest that peace should continue. We shall sometimes also, if occasion demand, insert a brief defence of the facts in the statement and trace the reasons that led up to them.
2.108. , ut dixi, nunquam; argumentum ponemus aliquando; quod facit pro Ligario Cicero, cum dicit sic eum provinciae praefuisse, ut illi pacem esse expediret. expositioni et brevem, cum res poscet, defensionem et rationem factorum.
2.109. For we must state our facts like advocates, not witnesses. A statement in its simplest form will run as follows, “Quintus Ligarius went out as legate to C. Considius.” But how will Cicero put it? “Quintus Ligarius,” he says, “set out for Africa as legate to Gaius Considius at a time when there was no thought of war.” And again elsewhere he says, “Not only not to war, but to a country where there was no thought of war.”
2.109. enim narrandum est tanquam testi sed tanquam patrono. ordo per se talis est: Q. Ligarius legatus cum C. Considio profectus. ergo M. Tullius? Q. enim, inquit, Ligarius, cum esset nulla belli suspicio, legatus in Africam cum C. Considio profectus est. alibi:
2.110. And when the sense would have been sufficiently clear had he said no more than “Quintus Ligarius would not suffer himself to be entangled in any transaction,” he adds “for he had his eyes fixed on home and wished to return to his own people.” Thus he made what he stated credible by giving a reason for it and at the same time coloured it with emotion.
2.110. modo ad bellom sed ne ad minimam quidem suspicionem belli. Et cum esset indicaturo satis, Q. Ligarius nullo se implicari negotio passus est, adiecit, domum spectans, ad suos redire cupiens. quod exponebat, et ratione fecit credibile et adfectu quoque implevit.
2.111. I am therefore all the more surprised at those who hold that there should be no appeal to the emotions in the statement of facts. If they were to say “Such appeals should be brief and not on the scale on which they are employed in tile peroration,” I should agree with them; for it is important that the statement should be expeditious. But why, while I am instructing the judge, should I refuse to move him as well?
2.111. magis miror eos, qui non putant utendum in narratione adfectibus. si hoc dicunt, non diu neque ut in epilogo, mecum sentiunt; effugiendae sunt enim morae. cur ego iudicem nolim, dum eum doceo, etiam movere?
2.112. Why should I not, if it is possible, obtain that effect at the very opening of the case which I am anxious to secure at its conclusion, more especially in view of the fact that I shall find the judge far more amenable to the cogency of my proof, if I have previously filled his mind with anger or pity?
2.112. , quod in summa parte sum actionis petiturus, non in primo statim rerum ingressu, si fieri potest, consequar? praesertim etiam in probationibus faciliorem sim animum eius habiturus occupatum vel ira vel miseratione.
2.113. Does not Cicero, in his description of the scourging of a Roman citizen, in a few brief words stir all the emotions, not merely by describing the victim's position, the place where the outrage was committed and the nature of the punishment, but also by praising the courage with which he bore it? For he shows us a man of the highest character who, when beaten with rods, uttered not a moan nor an entreaty, but only cried that lie was a Roman citizen, thereby bringing shame on his oppressor and showing his confidence in the law.
2.113. non M. Tullius circa verbera civis Romani omnis brevissime movet adfectus, non solum condicione ipsius, loco iniuriae, genere verberum, sed animi quoque commendatione? enim virum ostendit qui, cum virgis caederetur, non ingemuerit, non rogaverit, sed tantum ciuem Romanum esse se cum invidia caedentis et fiducia iuris clamaverit.
2.114. Again does he not throughout the whole of his statement excite the warmest indignation at the misfortunes of Philodamus and move us even to tears when he speaks of his punishment and describes, or rather shows us as in a picture, the father weeping for the death of his son and the son for the death of his father?
2.114. ? Philodami casum nonne cum per totam expositionem incendit invidia, tum in supplicio ipso lacrimis implevit, cum flentes non tam narraret quam ostenderet patrem de morte filii, filium de patris?
2.115. What can any peroration present that is more calculated to stir our pity? If you wait for the peroration to stir your hearer's emotions over circumstances which you have recorded unmoved in your statement of facts, your appeal will come too late. The judge is already familiar with them and hears their mention without turning a hair, since he was unstirred when they were first recounted to him. Once the habit of mind is formed, it is hard to change it.
2.115. ulli epilogi possunt magis habere miserabile? est enim advocare iis rebus adfectum in peroratione, quas securus narraveris; adsuevit illis iudex iamque eas sine motu mentis accipit, quibus commotus novis non est, et difficile est mutare animi habitum semel constitutum.
2.116. For my own part (for I will not conceal my opinion, though it rests rather on actual examples than on rules), I hold that the statement of fact more than any portion of the speech should be adorned with the utmost grace and charm. But much will depend on the nature of the subject which we have to set forth.
2.116. vero (neque enim dissimulabo iudicium meum, quamquam id, quod sum dicturus, exemplis magis quam praeceptis ullis continetur) narrationem, ut si ullam partem orationis, omni qua potest gratia et venere exornandam puto. plurimum refert, quae sit natura eius rei quam exponimus.
2.117. In slighter cases, such as are the majority of private suits, the decoration must be restrained and fit close to the subject, while the utmost care must be exercised in choice of words. The words which in our purple passages are swept along by the force of our eloquence and lost in the profusion of our language, must in cases such as these be clear and, as Zeno says, “steeped with meaning.” The rhythm should be unobtrusive, but as attractive as possible, while the figures must neither be derived from poetry nor such as are contrary to current usage, though warranted by the authority of antiquity (for it is important that our language should be entirely normal), but should be designed to relieve tedium by their variety and should be frequently changed to relax the strain of attention.
2.117. parvis ergo, quales sunt fere privatae, sit ille presses et velut applicitus rei cultus, in verbis summa diligentia; quae in locis impetu feruntur et circumiectae orationis copia latent, hic expressa et, ut vult Zeno, sensu tincta esse debebunt; compositio dissimulata quidem sed tamen quam iucundissima;
2.118. Thus we shall avoid repeating the same terminations and escape monotony of rhythm and a stereotyped turn of phrase. For the statement of facts lacks all the other allurements of style and, unless it is characterised by this kind of charm, will necessarily fall flat.
2.118. figurae non illae poeticae et contra rationem loquendi auctoritate veterum receptae (nam debet esse quam purissimus sermo), sed quae varietate taedium effugiant et mutationibus animum levent, ne in eundem casum similem compositionem, pares elocutionum tractus incidamus. enim ceteris lenociniis expositio et, nisi commendetur hac venustate, iaceat necesse est.