2.119. Moreover there is no portion of a speech at which the judge is more attentive, and consequently nothing that is well said is lost. And the judge is, for some reason or other, all the more ready to accept what charms his ear and is lured by pleasure to belief.
2.119. in ulla parte intentior est index, eoque nihil recte dictum perit. nescio quomodo etiam credit facilius, quae audienti iucunda sunt, et voluptate ad fidem ducitur.
2.120. When on the other hand the subject is on a larger scale, we have a chance to excite horror by our narration of abominable wrongs or pity by a tale of woe: but we must do so in such a way as not to exhaust our stock of emotions on the spot, but merely to indicate our harrowing story in outline so that it may at once be clear what the completed picture is like to be.
2.120. vero maior res erit, et atrocia invidiose et tristia miserabiliter dicere licebit, non ut consumantur adfectus, sed ut tamen velut primis lineis designentur, ut plane, qualis futura sit imago rei, statim appareat.
2.121. Again I am far from disapproving of the introduction of some striking sentence designed to stimulate the judge's jaded palate. The best way of so doing is the interposition of a short sentence like the following: “Milo's slaves did what everyone would have wished his own slaves to do under similar circumstances ”: at times we may even be a little more daring and produce something like the following: “The mother-in-law wedded her son-in-law: there were no witnesses, none to sanction the union, and the omens were dark and sinister.”
2.121. sententia quidem velut fatigatum intentione stomachum iudicis reficere dissuaserim, maxime quidem brevi interiectione, qualis est illa, servi Milonis, quod suos quisque servos in tali re facere voluisset, interim paulo liberiore, qualis est illa, genero socrus, nullis auspicibus, nullis auctoribus, funestis ominibus omnium.
2.122. If this was done in days when every speech was designed for practical purposes rather than display and the courts were far stricter than to-day, how much more should we do it now, when the passion for producing a thrill of pleasure has forced its way even into cases where a man's life or fortunes are in peril? I shall say later to what extent I think we should indulge popular taste in this respect: in the meantime I shall admit that some such indulgence is necessary.
2.122. cum sit factum iis quoque temporibus, quibus omnis ad utilitatem potius quam ad ostentationem componebatur oratio, et erant adhuc severiora iudicia, quanto nunc faciendum magis, cum in ipsa capitis aut fortunarum pericula inrupit voluptas? cui hominum desiderio quantum dari debeat alio loco dicam. aliquid indulgendum esse confiteor.
2.123. A powerful effect may be created if to the actual facts of the case we add a plausible picture of what occurred, such as will make our audience feel as if they were actual eyewitnesses of the scene. Such is the description introduced by Marcus Caelius in his speech against Antonius. “For they found him lying prone in a drunken slumber, snoring with all the force of his lungs, and belching continually, while the most distinguished of his female companions sprawled over every couch, and the rest of the seraglio lay round in all directions. They however perceived the approach of the enemy and, half-dead with terror, attempted to arouse Antonius, called him by name, heaved up his head, but all in vain, while one whispered endearing words into his ear, and another slapped him with some violence. At last he recognised the voice and touch of each and tried to embrace her who happened to be nearest. Once wakened he could not sleep, but was too drunk to keep awake, and so was bandied to and fro between sleeping and waking in the hands of his centurions and his paramours.” Could you find anything more plausible in imagination, more vehement in censure or more vivid in description?
2.123. confert adiecta veris credibilis rerum imago, quae velut in rem praesentem perdicere audientes videtur, qualis est illa M. Caelii in Antonium descriptio: ipsum offendunt temulento sopore profligatum, totis praecordiis stertentem, ructuosos spiritus geminare, praeclarasque contubernales ab omnibus spondis transversas incubare et reliquas circumiacere passim. tamen exanimatae terrore, hostium adventu percepto, excitare Antonium conabantur, nomen inclamabant, frustra a ceruicibus tollebant, blandius alia ad aurem invocabat, uehementius etiam nonnulla feriebat; quarum cum omnium vocem tactumque noscitaret, proximae cuiusque collum amplexu petebat, neque dormire excitatus neque vigilare ebrius poterat, sed semisomno sopore inter manus centurionum concubinarumque iactabatur. his neque credibilius fingi neque vehementius exprobrari neque manifestius ostendi potest.
2.125. There is another point to which I must call attention, namely the credit which accrues to the statement of facts from the authority of the speaker. Now such authority should first and foremost be the reward of our manner of life, but may also be conferred by our style of eloquence. For the more dignified and serious our style, the greater will be the weight that it will lend to our assertions.
2.125. illud quidem praeteribo, quantam adferat fidem expositioni narrantis auctoritas; quam mereri debemus ante omnia quidem vita, sed et ipso genere orationis, quod quo fuerit gravius ac sanctius, hoc plus habeat necesse est in adfirmando ponderis.
2.126. It is therefore specially important in this part of our speech to avoid anything suggestive of artful design, for the judge is never more on his guard than at this stage. Nothing must seem fictitious, nought betray anxiety; everything must seem to spring from the case itself rather than the art of the orator.
2.126. igitur in hac praecipue parte omnis calliditatis suspicio, neque enim se usquam custodit magis iudex; nihil videatur fictum, nihil sollicitum; omnia potius a causa quam ab oratore profecta credantur.
2.127. But our modern orators cannot endure this and imagine that their art is wasted unless it obtrudes itself, whereas as a matter of fact the moment it is detected it ceases to be art. We are the slaves of applause and think it the goal of all our effort. And so we betray to the judges what we wish to display to the bystanders.
2.127. hoc pati non possumus et perire artem putamus, nisi apparent, cum desinat ars esse, si apparet. ex laude atque hanc laboris nostri ducimus summam., quae circumstantibus ostentare volumus, iudicibus prodimus.
2.128. There is also a kind of repetition of the statement which the Greeks call ἐπιδιηγήσις. It belongs to declamation rather than forensic oratory, and was invented to enable the speaker (in view of the fact that the statement should be brief) to set forth his facts at greater length and with more profusion of ornament, as a means of exciting indignation or pity. I think that this should be done but rarely and that we should never go to the extent of repeating the statement in its entirety. For we can attain the same result by a repetition only of parts. Anyone, however, who desires to employ this form of repetition, should touch but lightly on the facts when making his statement and should content himself with merely indicating what was done, while promising to set forth how it was done more fully when the time comes for it.
2.128. quaedam etiam repetita narratio, quae ἐπιδιήγησις dicitur, sane res declamatoria magis quam forensis, ideo autem reperta, ut, quia narratio brevis esse debet, fusius et ornatius res possit exponi; quod fit vel invidiae gratia vel miserationis. et raro faciendum iudico neque sic unquam, ut totus ordo repetatur; licet enim per partes idem consequi., qui uti ἐπιδιηγήσει volet, narrationis loco rem stringat et contentus indicare, quod factum sit, quo sit modo factum plenius se loco suo expositurum esse promittat.
2.129. Some hold that the statement of facts should always begin by referring to some person, whom we must praise if he is on our side, and abuse if he is on the side of our opponents. It is true that this is very often done for the good reason that a law-suit must take place between persons.
2.129. narrationis quidam utique faciendum a persona putant, eamque, si nostra sit, ornandam, si aliena, infamandam statim. sane frequentissimum est, quia personae sunt inter quas litigatur.
2.130. Persons may however also be introduced with all their attendant circumstances, if such a procedure is likely to prove useful. For instance, “The father of my client, gentlemen, was Aulus Cluentius Habitus, a man whose character, reputation and birth made him the leading man not only in his native town of Larinum, but in all the surrounding district.”
2.130. hae quoque interim cum suis accidentibus ponendae, cum id profuturum est: ut A. Cluentius Habitus fuit pater huiusce, iudices, homo non solum municipii Larinatis, ex quo erat, sed regionis illius et uicinitatis virtute, existimatione, nobilitate princeps;
2.131. Or again they may be introduced without such circumstances, as in the passage beginning “For Quintus Ligarius etc.” Often, too, we may commence with a fact as Cicero does in the pro Tullio: “Marcus Tullius has a farm which he inherited from his father in the territory of Thurium,” or Demosthenes in the speech in defence of Ctesiphonl, — “On the outbreak of the Phocian war.”
2.131. interim sine his ut Q. enim Ligarius cum esset; frequenter vero et a re, sicut pro Tullio Cicero habet in agro Thurino M. Tullius paternum; Demosthenes pro Ctesiphonte τοῦ γὰρ Φωκικο͂ν συστάντος πολέμου.
2.132. As regards the conclusion of the statement of facts, there is a controversy with those who would have the statement end where the issue to be determined begins. Here is an example. “After these events the praetor Publius Dolabella issued an interdict in the usual form dealing with rioting and employment of armed men, ordering, without any exception, that Aebutius should restore the property from which he had ejected Caecina. He stated that he had done so. A sum of money was deposited. It is for you to decide to whom this money is to go.” This rule can always be observed by the prosecutor, but not always by the defendant.
2.132. fine narrationis cum iis contentio est, qui perduci expositionem volunt eo, unde quaestio oritur: rebus ita gestis, P. Dolabella praetor interdixit, ut est consuetudo, de vi, hominibus armatis, sine ulla exceptione, tantum ut unde deiecisset restitueret; deinde restituisse se dixit. facta est; hac de sponsione vobis iudicandum est. a petitore semper fieri potest, a defensore non semper.
3.1. III. In the natural order of things the statement of fact is followed by the verification. For it is necessary to prove the points which we stated with the proof in view. But before I enter on this portion, I have a few words to say on the opinions held by certain rhetoricians. Most of them are in the habit, as soon as they have completed the statement of facts, of digressing to some pleasant and attractive topic with a view to securing the utmost amount of favour from their audience.
3.1. ipso narrationem sequitur confirmatio. Probanda sunt enim quae propter hoc exposuimus. priusquam ingrediar hanc partem, pauca mihi de quorundam opinione dicenda sunt. moris est prolato rerum ordine protinus utique in aliquem laetum ac plausibilem locum quam maxime possint favorabiliter excurrere.
3.2. This practice originated in the display of the schools of declaration and thence extended to the courts as soon as causes came to be pleaded, not for the benefit of the parties concerned, but to enable the advocates to flaunt their talents. I imagine that they feared that if the slender stream of concise statement, such as is generally required, were followed by the pugnacious tone inevitable in the arguing of the case, the speech would fall flat owing to the postponement of the pleasures of a more expansive eloquence.
3.2. quidem natum ab ostentatione declamatoria iam in forum venit, postquam agere causas non ad utilitatem litigatorum, sed ad patronorum iactationem repertum est, ne, si pressae illi, qualis saepius desideratur, narrationis gracilitati coniuncta argumentorum pugnacitas fuerit, dilatis diutius dicendi voluptatibus oratio refrigescat In quo vitium illud est, quod sine discrimine causarum atque utilitatis hoc, tanquam semper expediat aut etiam necesse sit, faciunt, eoque sumptas ex iis partibus, quarum alius erat locus, sententias in hanc congerunt, ut plurima aut iterum dicenda sint aut, quia alieno loco dicta sunt, dici suo non possint.
3.3. The objection to this practice lies in the fact that they do this without the slightest consideration of the difference between case and case or reflecting whether what they are doing will in any way assist them, on the assumption that it is always expedient and always necessary. Consequently they transfer striking thoughts from the places which they should have occupied elsewhere and concentrate them in this portion of the speech, a practice which involves either the repetition of a number of things that they have already said or their omission from the place which was really theirs owing to the fact that they have already been said. I admit however that this form of digression can be advantageously appended, not merely to the statement of facts, but to each of the different questions or to the questions as a whole, so long as the case demand, or at any rate permit it. Indeed such a practice confers great distinction and adornment on a speech, but only if the digression fits in well with the rest of the speech and follows naturally on what has preceded, not if it is thrust in like a wedge parting what should naturally come together. For there is no part of a speech so closely connected with any other as the statement with the proof, though of course such a digression may be intended as the conclusion of the statement and the beginning of the proof There will therefore sometimes be room for digression; for example if the end of the statement has been concerned with some specially horrible theme, we may embroider the theme as though our indignation must find immediate vent.
3.3. autem confiteor, hoc exspatiandi genus non modo narrationi sed etiam quaestionibus vel universis vel interim singulis opportune posse subiungi, cum res postulat aut certe permittit, atque eo vel maxime illustrari ornarique orationem, sed si cohaeret et sequitur, non si per vim cuneatur et quae natura iuncta erant distrahit. enim tam est consequens quam narrationi probatio, nisi excursus ille vel quasi finis narrationis vel quasi initium probationis est. ergo illi nonnunquam locus, ut, si expositio circa finem atrox fuerit, prosequamur eam velut erumpente protinus indignatione.
3.6. This, however, should only be done if there is no question about the facts. Otherwise it is more important to verify your charge than to heighten it, since the horrible nature of a charge is in favour of the accused, until the charge is proved. For it is just the most flagrant crimes that are the most difficult to prove.
3.6. tamen ita fieri oportebit, si res dubitationem non habebit. prius est quod obiicias verum efficere quam magnum, quia criminum invidia pro reo est, priusquam probabitur; difficillima est enim gravissimi cuiusque sceleris fides.
3.7. Again a digression may be advantageous if after setting forth the services rendered by your client to his opponent you denounce the latter for his ingratitude, or after producing a variety of charges in your statement, you point out the serious danger in which the advancement of such charges is likely to involve you.
3.7. fieri non inutiliter potest ut, si merita in adversarium aliqua exposueris, in ingratum inveharis, aut, si varietatem criminum narratione demonstraveris, quantum ob ea periculum intentetur, ostendas.
3.8. But all these digressions should be brief. For as soon as he has heard the facts set forth in order, the judge is in a hurry to get to the proof and desires to satisfy himself of the correctness of his impressions at the earliest possible moment. Further, care must be taken not to nullify the effect of the statement by diverting the minds of the court to some other theme and wearying them by useless delay.
3.8. haec breviter omnia. enim ordine audito festinat ad probationem et quam primum certus esse sententiae cupit. cavendum est, ne ipsa expositio vanescat, aversis in aliud animis et inani mora fatigatis.
3.9. But, though such digressions are not always necessary at the end of the statement, they may form a very useful preparation for the examination of the main question, more especially if at first sight it presents an aspect unfavourable to our case, if we have to support a harsh law or demand severe punishment. For this is the place for inserting what may be regarded as a second exordium with a view to exciting or mollifying the judge or disposing him to lend a favouring ear to our proofs. Moreover we can do this with all the greater freedom and vehemence at this stage of the proceedings since the case is already known to the judge.
3.9. ut non semper est necessaria post narrationem illa procursio, ita frequenter utilis ante quaestionem praeparatio, utique si prima specie minus erit favorabilis, si legem asperam ac poenarias actiones tuebimur. hic locus velut sequentis exordii ad conciliandum probationibus nostris iudicem, mitigandum, concitandum. Quod liberius hic et vehementius fieri potest, quia iudici nota iam causa est.
3.10. We shall therefore employ such utterances as emollients to soften the harder elements of our statement, in order that the ears of the jury may be more ready to take in what we have to say in the sequel and to grant us the justice which we ask. For it is hard to persuade a man to do anything against the grain.
3.10. igitur velut fomentis, si quid erit asperum, praemolliemus, quo facilius aures iudicum quae post dicturi erimus admittant, ne ius nostrum oderint. enim facile persuadetur invitis.
3.11. It is also important on such occasions to know whether the judge prefers equity or a strict interpretation of the law, since the necessity for such digression will vary accordingly.
3.11. loco iudicis quoque noscenda natura est, iuri magis an aequo sit appositus; proinde enim magis aut minus erit hoc necessarium. res eadem et post quaestionem perorationis vice fungitur.
3.12. Such passages may also serve as a kind of peroration after the main question. The Greeks call this παρέκβασις, the Romans egressus or egressio (digression). They may however, as I have said, be of various kinds and may deal with different themes in any portion of the speech. For instance we may extol persons or places, describe regions, record historical or even legendary occurrences.
3.12. partem παρέκβασιν vocant Graeci, Latini egressum vel egressionem. hae sunt plures, ut dixi, quae per totam causam varios habent excursus, ut laus hominum locorumque, ut descriptio regionum, expositio quarundam rerum gestarum, vel etiam fabulosarum.
3.13. As examples I may cite the praise of Sicily and the rape of Proserpine in the Verrines, or the famous recital of the virtues of Gneius Pompeius in the pro Cornelio, where the great orator as though the course of his eloquence had been broken by the mere mention of the general's name, interrupts the topic on which he had already embarked and digresses forthwith to sing his praises.
3.13. ex genere est in orationibus contra Verrem compositis Siciliae laus, Proserpinae raptus; pro C. Cornelio popularis illa virtutum Cn. Pompei commemoratio, in quam ille divinus orator, velut nomine ipso ducis cursus dicendi teneretur, abrupto quem inchoaverat sermone devertit actutum.
3.14. παρέκβασις may, I think, be defined as the handling of some theme, which must however have some bearing on the case, in a passage that involves digression from the logical order of our speech. I do not see therefore why it should be assigned a special position immediately following on the statement of facts any more than I understand why they think that the name is applicable only to a digression where some statement has to be made, when there are so many different ways in which a speech may leave the direct route.
3.14. Παρέκβασις est, ut mea quidem fert opinio, alicuius rei, sed ad utilitatem causae pertinentis extra ordinem excurrens tractatio. non video cur hunc ei potissimum locum adsignent, qui rerum ordinem sequitur, non magis quam illud, cur hoc nomen ita demum proprium putent, si aliquid in digressu sit exponendum, cum tot modis a recto itinere declinet oratio.
3.15. For whatever we say that falls outside the five divisions of the speech already laid down is a digression, whether it express indignation, pity, hatred, rebuke, excuse, conciliation or be designed to rebut invective. Other similar occasions for digression on points not involved by the question at issue arise when we amplify or abridge a topic, make any kind of emotional appeal or introduce any of those topics which add such charm and elegance to oratory, topics that is to say such as luxury, avarice, religion, duty: but these would hardly seem to be digressions as they are so closely attached to arguments on similar subjects that they form part of the texture of the speech.
3.15. quidquid dicitur praeter illas quinque quas fecimus partes, egressio est, indignatio, miseratio, invidia, convicium, excusatio, conciliatio, maledictorum refutatio. his, quae non sunt in quaestione, omnis amplificatio, minutio, omne adfectus genus, et quae maxime iucundam et ornatam faciunt orationem, de luxuria, de avaritia, religione, officiis; quae cum sint argumentis subiecta similium rerum, quia cohaerent, egredi non videntur.
3.16. There are however a number of topics which are inserted in the midst of matter which has no connexion with them, when for example we strive to excite, admonish, appease, entreat or praise the judge. Such passages are innumerable. Some will have been carefully prepared beforehand, while others will be produced to suit the occasion or the necessity of the moment, if anything extraordinary should occur in the course of our pleading, such as an interruption, the intervention of some individual or a disturbance.
3.16. plurima sunt, quae rebus nihil secum cohaerentibus inseruntur, quibus iudex reficitur, admonetur, placatur, rogatur, laudatur. sunt haec, quorum alia sic praeparata adferimus, quaedam ex occasione vel necessitate ducimus, si quid nobis agentibus novi accidit, interpellatio, interventus alicuius, tumultus.
3.17. For example, this made it necessary for Cicero to digress even in the exordium when he was defending Milo, as is clear from the short speech which he made on that occasion. But the orator who makes some preface to the main question or proposes to follow up his proofs with a passage designed to commend them to the jury, may digress at some length. On the other hand, if he breaks as say in the middle of his speech, he should not be long in returning to the point from which he departed.
3.17. Ciceroni quoque in prooemio, cum diceret pro Milone, digredi fuit necesse, ut ipsa oratiuncula qua usus est patet. autem paulo longius exire, qui praeparat aliquid ante quaestionem et qui finitae probationi velut commendationem adiicit At qui ex media erumpit, cito ad id redire debet unde devertit.
4.1. IV. After the statement of facts some place the proposition which they regard as forming a division of a forensic speech. I have already expressed my opinion of this view. But it seems to me that the beginning of every proof is a proposition, such as often occurs in the demonstration of the main question and sometimes even in the enunciation of individual arguments, more especially of those which are called ἐπιχειρήματα But for the moment I shall speak of the first kind. It is not always necessary to employ it.
4.1. qui narrationi propositionem subiungant tanquam partem iudicialis materiae, cui opinioni respondimus. autem propositio videtur omnis confirmationis initium, quod non modo in ostendenda quaestione principali, sed nonnunquam etiam in singulis argumentis poni solet maximeque in iis quae ἐπιχειρήματα vocantur. nunc de priore loquimur. non semper uti necesse est.
4.2. The nature of the main question is sometimes sufficiently clear without any proposition, especially if the statement of facts ends exactly where the question begins. Consequently the recapitulation generally employed in the case of arguments is sometimes placed immediately after the statement of facts. “The affair took place, as I have described, gentlemen: he that laid the ambush was defeated, violence was conquered by violence, or rather I should say audacity was crushed by valour.”
4.2. enim sine propositione quoque satis manifestum est quid in quaestione versetur, utique si narratio ibi finem habet, ubi initium quaestio, adeo, ut aliquando subiungatur expositioni, quae solet in argumentis esse summa collectio: haec, sicut exposui, ita gesta sunt, iudices; insidiator superatus est, vi victa vis vel potius oppressa vir tute audacia est.
4.3. Sometimes proposition is highly advantageous, more especially when the fact cannot be defended and the question turns on the definition of the fact; as for example in the case of the man who has taken the money of a private individual from a temple: we shall say, “My client is charged with sacrilege. It is for you to decide whether it was sacrilege,” so that the judge may understand that his sole duty is to decide whether the charge is tantamount to sacrilege.
4.3. vero valde est utilis, ubi res defendi non potest et de fine quaeritur, ut pro eo, qui pecuniam privatam de templo sustulit, agitur, de sacrilegio cognoscitis, ut iudex intelligat id unum esse officii sui, quaerere an id quod obiicitur sacrilegium sit.
4.4. The same method may be employed in obscure or complicated cases, not merely to make the case clearer, but sometimes also to make it more moving. This effect will be produced, if we at once support our pleading with some such words as the following: “It is expressly stated in the law that for any foreigner who goes up on to the wall the penalty is death. You are undoubtedly a foreigner, and there is no question but that you went up on to the wall. The conclusion is that you must submit to the penalty.” For this proposition forces a confession upon our opponent and to a certain extent accelerates the decision of the court. It does more than indicate the question, it contributes to its solution.
4.4. in causis obscuris aut multiplicibus, nec semper propter hoc solum ut sit causa lucidior, sed aliquando etiam ut magis moveat. autem, si protinus subtexantur aliqua, quae prosint. aperte scripta est ut peregrinus qui murum ascenderit morte multetur; peregrinum te esse cerium est; quin ascenderis murum, non quaeritur; quid superest, nisi ut te puniri oporteat? enim propositio confessionem adversarii premit et quodammodo iudicandi moram tollit, nec indicat quaestionem sed adiuvat.
4.5. Propositions may be single, double or manifold: this is due to more than one reason. For several charges may be combined, as when Socrates was accused of corrupting the youth and of introducing new superstitions; while single propositions may be made up of a number of arguments, as for instance when Aeschines is accused of misconduct as an ambassador on the ground that he lied, failed to carry out his instructions, wasted time and accepted bribes.
4.5. autem propositiones et simplices et duplices vel multiplices, quod accidit non uno modo. et plura crimina iunguntur, ut cum Socrates accusatus est, quod corrumperet iuventutem et novas superstitiones introduceret; et singula ex pluribus colliguntur, ut cum legatio male gesta obiicitur Aeschini, quod mentitus sit, quod nihil ex mandatis fecerit, quod moratus sit, quod munera acceperit.
4.6. The defence may also contain several propositions: for instance against a claim for money we may urge, “Your claim is invalid; for you had no right to act as agent nor had the party whom you represent any right to employ an agent: further, he is not the heir of the man from whom it is asserted that I borrowed the money, nor am I his debtor.”
4.6. quoque plures interim propositiones habet, ut contra petitionem pecuniae: petis, procuratorem enim tibi esse non licuit, sed neque illi, cuius nomine litigas, habere procuratorem; sed neque est heres eius, a quo accepisse mutuam dicor nec ipsi debui.
4.7. These propositions can be multiplied at pleasure, but it is sufficient to give an indication of my meaning. If propositions are put forward singly with the proofs appended, they will form several distinct propositions: if they are combined, they fall under the head of partition.
4.7. haec in quantum libet possunt, sed rem ostendisse satis est. si ponantur singulae subiectis probationibus, plures sunt propositiones; si coniungantur, in partitionem cadunt.
4.8. A proposition may also be put forward unsupported, as is generally done in conjectural cases: “The formal accusation is one of murder, but I also charge the accused with theft.” Or it may be accompanied by a reason: “Gaius Cornelius is guilty of an offence against the state; for when he was tribune of the plebs, he himself read out his bill to the public assembly.” I In addition to these forms of proposition we can also introduce a proposition of our own, such as “I accuse him of adultery,” or may use the proposition of our opponent, such as “The charge brought against me is one of adultery,” or finally we may employ a proposition which is common to both sides, such as “The question in dispute between myself and my opponent is, which of the two is next-of-kin to the deceased who died intestate.” Sometimes we may even couple contradictory propositions, as for instance “I say this, my opponent says that.”
4.8. et nuda propositio, qualis fere in coniecturalibus, ago, furtum obiicio; est ratione subiecta, ut minuit C. Cornelius; nam codicem tribunus plebis ipse pro contione legit. haec utimur propositione aut nostra, ut obiicio; aut adversarii, ut mecum agitur, aut communi, ut me et adversarium quaestio est, uter sit intestato propior Nonnumquam diversas quoque iungimus: hoc dico, adversarius hoc.
4.9. We may at times produce the effect of a proposition, even though it is not in itself a proposition, by adding after the statement of facts some phrase such as the following: “These are the points on which you will give your decision,” thereby reminding the judge to give special attention to the question and giving him a fillip to emphasise the point that we have finished the statement of facts and are beginning the proof, so that when we start to verify our statements he may realise that he has reached a fresh stage where he must begin to listen with renewed attention.
4.9. interim vim propositionis, etiamsi per se non est propositio, eum exposito rerum ordine subiicimus: his cognoscetis, ut sit haec commonitio iudicis, quo se ad quaestionem acrius intendat et velut quodam tactu resuscitatus fine esse narrationis et initium probationis intelligat, et nobis confirmationem ingredientibus ipse quoque quodammodo novum audiendi sumat exordium.
5.1. V. Partition may be defined as the enumeration in order of our own propositions, those of our adversary or both. It is held by some that this is indispensable on the ground that it makes the case clearer and the judge more attentive and more ready to be instructed, if he knows what we are speaking about and what we are going subsequently to speak about.
5.1. est nostrarum aut adversarii propositionum aut utrarumque ordine collocata enumeratio. quidam utendum semper putant, quod ea fiat causa lucidior et iudex attentior ac docilior, si scierit et de quo dicamus et de quo dicturi postea simus.
5.2. Others, on the contrary, think that such a course is dangerous to the speaker on two grounds, namely that sometimes we may forget to perform what we have promised and may, on the other hand, come upon something which we have omitted in the partition. But this will never happen to anyone unless he is either a fool or has come into court without thinking out his speech in detail beforehand.
5.2. quidam periculosum id oratori arbitrantur duabus ex causis: quod nonnunquam et excidere soleant quae promisimus et, si qua in partiendo praeterimus, occurrere; quod quidem nemini accidet, nisi qui plane vel nullo fuerit ingenio vel ad agendum nihil cogitati praemeditatique detulerit.
5.3. Besides, what can be simpler or clearer than a straightforward partition? It follows nature as a guide and the adhesion to a definite method is actually of the greatest assistance to the speaker's memory. Therefore I cannot approve the view even of those who lay down that partition should not extend beyond the length of three propositions. No doubt there is a danger, if our partition is too complicated, that it may slip the memory of the judge and disturb his attention. But that is no reason why it should be tied down to a definite number of propositions, since the case may quite conceivably require more.
5.3. quae tam manifesta et lucida est ratio quam rectae partitionis? enim naturam ducem adeo ut memoriae id maximum sit auxilium via dicendi non decedere. ne illos quidem probaverim, qui partitionem vetant ultra tres propositiones extendere. sine dubio, si nimium sit multiplex, fugiet memoriam iudicis et turbabit intentionem; hoc tamen numero velut lege non est alliganda, cum possit causa plures desiderare.
5.4. There are further reasons why we should sometimes dispense with partition. In the first place there are many points which can be produced in a more attractive manner, if they appear to be discovered on the spot and not to have been brought ready made from our study, but rather to have sprung from the requirements of the case itself while we were speaking. Thus we get those not unpleasing figures such as “It has almost escaped me,” “I had forgotten,” or “You do well to remind me.” For if we set forth all that we propose to prove in advance, we shall deprive ourselves of the advantage springing from tile charm of novelty.
5.4. sunt magis, propter quae partitione non semper sit utendum: primum, quia pleraque gratiora sunt, si inventa subito nec domo adlata, sed inter dicendum ex re ipsa nata videantur, unde illa non iniucunda schemata, excidit mihi, et me, et admones. enim probationibus omnis in reliquum gratia novitatis praecerpitur.
5.5. Sometimes we shall even have to hoodwink the judge and work upon him by various artifices so that he may think that our aim is other than what it really is. For there are cases when a proposition may be somewhat startling: if the judge foresees this, he will shrink from it in advance, like a patient who catches sight of the surgeon's knife before the operation. On the other hand, if we have given him no preliminary notice and our words take him unawares, without his interest in them having been previously roused by any warning, we shall gain a credence which we should not have secured had we stated that we were going to raise the point.
5.5. vero etiam fallendus est iudex et variis artibus subeundus, ut aliud agi quam quod petimus putet. est nonnunquam dura propositio, quod iudex si providit, non aliter praeformidat quam qui ferrum medici priusquam curetur aspexit; at si re non ante proposita securum ac nulla denuntiatione in se conversum intrarit oratio, efficiet, quod promittenti non crederetur.
5.6. At times we must not merely avoid distinguishing between the various questions, but must omit them altogether, while our audience must be distracted by appeals to the emotion and their attention diverted. For the duty of the orator is not merely to instruct: the power of eloquence is greatest in emotional appeals. Now there is no room for passion if we devote our attention to minute and microscopic division at a time when we are seeking to mislead the judgment of the person who is trying the case.
5.6. refugienda non modo distinctio quaestionum est, sed omnino tractatio; adfectibus turbandus et ab intentione auferendus auditor. enim solum oratoris est docere, sed plus eloquentia circa movendum valet. rei contraria est maxime tenuis illa et scrupulose in partes secta divisionis diligentia eo tempore quo cognoscenti iudicium conamur auferre.
5.7. Again, there are certain arguments which are weak and trivial when they stand alone, but which have great force when produced in a body. We must, therefore, concentrate such arguments, and our tactics should be those of a sudden charge in mass. This, however, is a practice which should be resorted to but rarely and only under extreme necessity when reason compels us to take a course which is apparently irrational.
5.7. quod interim, quae per se levia sunt et infirma, turba valent? congerenda sunt potius et velut eruptione pugnandum; quod tamen rarum esse debet et ex necessitate demum, cum hoc ipsum quod dissimile rationi est coegerit ratio.
5.8. In addition it must be pointed out that in any partition there is always some one point of such special importance, that when the judge has heard it he is impatient with the remainder, which he regards as superfluous. Consequently if we have to prove or refute a number of points partition will be both useful and attractive, since it will indicate in order what we propose to say on each subject. On the other hand, if we are defending one point on various grounds partition will be unnecessary.
5.8. haec in omni partitione est utique aliquid potentissimum, quod cum audivit iudex cetera tanquam supervacua gravari solet. si plura vel obiicienda sunt vel diluenda, et utilis et iucunda partitio est ut, quid quaque de re dicturi simus, ordine appareat; at si unum crimen varie defendemus, supervacua.
5.9. If you were to make a partition such as the following, “I will not say that the character of my client is such as to render him incapable of murder, I will only say that he had no motive for murder and that at the time when the deceased was killed he was overseas,” in that case all the proofs which you propose to bring before this, the final proof, must needs seem superfluous to the judge.
5.9. si illa partiamur, non talem esse hunc quem tueor reum, ut in eo credibile videri possit homicidium; dicam occidendi causam huic non fuisse; dicam hunc eo tempore quo homo occisus est trans mare fuisse, omnia, quae ante id quod ultimum est exsequeris, inania videri necesse est.
5.10. For the judge is always in a hurry to reach the most important point. If he has a patient disposition he will merely make a silent appeal to the advocate, whom he will treat as bound by his promise. On the other hand, if he is busy, or holds exalted position, or is intolerant by nature, he will insist in no very courteous manner on his coming to the point.
5.10. enim iudex ad id quod potentissimum est. et velut obligatum promisso patronum, si est patientior, tacitus appellat; si vel occupatus vel in aliqua potestate vel etiam si moribus incompositus, cum convicio efflagitat.
5.11. For these reasons there are some who disapprove of the partition adopted by Cicero in the pro Cluentio, where he premises that he is going to show, first, “that no man was ever arraigned for greater crimes or on stronger evidence than Oppianicus,” secondly, “that previous judgments had been passed by those very judges by whom he was condemned,” and finally, “that Cluentius made no attempt to bribe the jury, but that his opponent did.” They argue that if the third point can be proved, there is no need to have urged the two preceding.
5.11. non defuerunt, qui Ciceronis illam pro Cluentio partitionem improbarent, qua se dicturum esse promisit primum, neminem maioribus criminibus, gravioribus testibus, in iudicium vocatum quam Oppianicum; deinde praeiudicia esse facta ab ipsis iudicibus, a quibus condemnatus sit; postremo, iudicium pecunia temptatum non a Cluentio, sed contra Cluentium; quia, si probari posset, quod est tertium, nihil necesse fuerit dicere priora.
5.12. On the other hand you will find no one so unreasonable or so foolish as to deny that the partition in the pro Murena is admirable. “I understand, gentlemen, that the accusation falls into three parts, the first aspersing my client's character, the second dealing with his candidature for the magistracy, and the third with charges of bribery.” These words make the case as clear as possible, and no one division renders any other superfluous.
5.12. nemo tam erit iniustus aut stultus, quin eum fateatur optime pro Murena esse partitum:, indices, tris totius accusationis fuisse partis, et earum unam in reprehensione vitae, alteram in contentione dignitatis, tertiam in criminibus ambitus esse versatam. sic et ostendit lucidissime causam et nihil fecit altero supervacuum.
5.13. There are also a number who are in doubt as to a form of defence which I may exemplify as follows: “If I murdered him, I did right; but I did not murder him.” What, they ask, is the value of the first part, if the second can be proved, since they are mutually inconsistent, and if anyone employs both arguments, we should believe neither? This contention is partially justified; we should employ the second alone only if the fact can be proved without a doubt.
5.13. illo quoque genere defensionis plerique dubitant: occidi, recte feci; sed non occidi; quo enim prius pertinere, si sequens firmum sit? haec invicem obstare, et utroque utentibus in neutro haberi fidem. sane in parte verum est, et illo sequenti, si modo indubitabile est, sit solo utendum.
5.14. But if we have any doubts as to being able to prove the stronger argument, we shall do well to rely on both. Different arguments move different people. He who thinks that the act was committed may regard it as a just act, while he who is deaf to the plea that the act was just may perhaps believe that it was never committed: one who is confident of his powers as a marksman may be content with one shaft, whereas he who has no such confidence will do well to launch several and give fortune a chance to come to his assistance.
5.14. si quid in eo, quod est fortius, timebimus, utraque probatione nitemur. enim alio moveri solet, et qui factum putavit, iustum credere potest; qui tanquam iusto non movebitur, factum fortasse non credet. certa manus uno telo possit esse contenta, incerta plura spargenda sunt, ut sit et fortunate locus.
5.15. Cicero in the pro Milone reveals the utmost skill in showing first that Clodius laid an ambush for Milo and then in adding as a supernumerary argument that, even if he had not done so, he was nevertheless so bad a citizen that his slaying could only have done credit to the patriotism of the slayer and redounded to his glory.
5.15. vero Cicero pro Milone insidiatorem primum Clodium ostendit, tum addidit ex abundanti, etiamsi id non fuisset, talem tamen civem cum summa virtute interfectoris et gloria necari potuisse.
5.16. I would not however entirely condemn the order mentioned above, since there are certain arguments which, though hard in themselves, may serve to soften those which come after. The proverb, “If you want to get your due, you must ask for something more,” is not wholly unreasonable.
5.16. illum tamen ordinem, de quo prius dixi, damnaverim; quia quaedam, etiamsi ipsa sunt dura, in id tamen valent, ut ea molliant quae sequuntur. omnino sine ratione est quod vulgo dicitur: petendum, ut aequum feras.
5.17. Still no one should interpret it to mean that you must stop short of nothing. For the Greeks are right when they lay it down as a rule that we should not attempt the impossible. But whenever the double-barrelled defence of which I am speaking is employed, we must aim at making the first argument support the credibility of the second. For he who might without danger to himself have confessed to the commission of the act, can have no motive for lying when he denies the commission.
5.17. tamen nemo sic accipiat ut omnia credat audenda. enim Graeci praecipiunt, temptanda, quae effici omnino non possint. quotiens hac, de qua loquor, duplici defensione utemur, id laborandum est, ut in illam partem sequentem fides ex priore ducatur. enim videri, qui tuto etiam confessurus fuit, mentiendi causam in negando non habere.
5.18. Above all it is important, whenever we suspect that the judge desires a proof other than that on which we are engaged, to promise that we will satisfy him on the point fully and without delay, more especially if the question is one of our client's honour.
5.18. illud utique faciendum est, ut, quotiens suspicabimur a iudice aliam probationem desiderari quam de qua loquimur, promittamus nos plene et statim de eo satis esse facturos, praecipueque si de pudore agetur.
5.19. But it will often happen that a discreditable case has the law on its side, and to prevent the judges giving us only a grudging and reluctant hearing on the point of law, we shall have to warn them with some frequency that we shall shortly proceed to defend our client's honour and integrity, if they will only wait a little and allow us to follow the order of our proofs.
5.19. autem accidit, ut causa parum verecunda iure tuta sit; de quo ne inviti iudices audiant et aversi, frequentius sunt admonendi, secuturam defensionem probitatis et dignitatis; exspectent paulum et agi ordine sinant.
5.20. We may also at times pretend to say certain things against the wishes of our clients, as Cicero does in the pro Cluentio when he discusses the law dealing with judicial corruption. Occasionally we may stop, as though interrupted by our clients, while often we shall address them and exhort them to let us act as we think best. Thus we shall make a gradual impression on the mind of the judge, and, buoyed up by the hope that we are going to clear our client's honour, he will be less ill-disposed toward the harder portions of our proof. And when he has accepted these, he will be all the readier to listen to our defence of our client's character.
5.20. interim nos invitis litigatoribus simulandum est dicere, quod Cicero pro Cluentio facit circa iudiciariam legem; nonnunquam, quasi interpellemur ab iis, subsistere; saepe convertenda ad ipsos oratio; hortandi ut sinant nos uti nostro consilio. surrepetur animo iudicis et, dum sperat probationem pudoris, asperioribus illis minus repugnabit.
5.21. Thus the two points will render mutual assistance to each other; the judge will be more attentive to our legal proofs owing to his hope that we shall proceed to a vindication of character and better disposed to accept that vindication because we have proved our point of law.
5.21. cum receperit, etiam verecundiae defensioni facilior erit. utraque res invicem iuvabit, eritque iudex circa ius nostrum spe modestiae attentior, circa modestiam iuris probatione proclivior.
5.22. But although partition is neither always necessary nor useful, it will, if judiciously employed, greatly add to the lucidity and grace of our speech. For it not only makes our arguments clearer by isolating the points from the crowd in which they would otherwise be lost and placing them before the eyes of the judge, but relieves his attention by assigning a definite limit to certain parts of our speech, just as our fatigue upon a journey is relieved by reading the distances on the milestones which we pass.
5.22. ut non semper necessaria aut utilis est partitio, ita opportune adhibita plurimum orationi lucis et gratiae confert. enim solum id efficit, ut clariora fiant, quae dicuntur, rebus velut ex turba extractis et in conspectu iudicum positis; sed reficit quoque audientem certo singularum partium fine, non aliter quam facientibus iter multum detrahunt fatigationis notata inscriptis lapidibus spatia.
5.23. For it is a pleasure to be able to measure how much of our task has been accomplished, and the knowledge of what remains to do stimulates us to fresh effort over the labour that still awaits us. For nothing need seem long, when it is definitely known how far it is to the end.
5.23. et exhausti laboris nosse mensuram voluptati est, et hortatur ad reliqua fortius exsequenda scire quantum supersit. enim longum videri necesse est, in quo, quid ultimum sit, certum est.
5.24. Quintus Hortensius deserves the high praise which has been awarded him for the care which he took over his partitions, although Cicero more than once indulges in kindly mockery of his habit of counting his headings on his fingers. For there is a limit to gesture, and we must be specially careful to avoid excessive minuteness and any suggestion of articulated structure in our partition. If our divisions are too small, they cease to be limbs and become fragments, and consequently detract not a little from the authority of our speech.
5.24. immerito multum ex diligentia partiendi tulit laudis Q. Hortensius, cuius tamen divisionem in digitos diductam nonnunquam Cicero leviter eludit. est suus et in gestu modus, et vitanda, utique maxime, concisa nimium et velut articulosa partitio.
5.25. Moreover, those who are ambitious of this sort of reputation, in order that they may appear to enhance the nicety and tile exhaustive nature of their division, introduce what is superfluous and subdivide things which naturally form a single whole. The result of their labours is, however, not so much to increase the number of their divisions as to diminish their importance, and after all is done and they have split up their argument into a thousand tiny compartments, they fall into that very obscurity which the partition was designed to eliminate.
5.25. et auctoritati plurimum detrahunt minuta illa nec iam membra sed frusta, et huius gloriae cupidi, quo subtilius et copiosius divisisse videantur, et supervacua adsumunt et quae natura singularia sunt secant, nec tam plura faciunt quam minora; deinde cum fecerunt mille particulas, in eandem incidunt obscuritatem, contra quam partitio inventa est.
5.26. The proposition, whether single or multiple, must, on every occasion when it can be employed with profit, be clear and lucid; for what could be more discreditable than that a portion of the speech, whose sole purpose is to prevent obscurity elsewhere, should itself be obscure? Secondly it must be brief and must not be burdened with a single superfluous word; for we are not explaining what we are saying, but what we are going to say.
5.26. divisa autem et simplex propositio, quotiens utiliter adhiberi potest, primum debet esse aperta atque lucida (nam quid sit turpius, quam id esse obscurum ipsum, quod in eum solum adhibetur usum, ne sint cetera obscura?), tum brevis nec ullo supervacuo onerata verbo. enim, quid dicamus, sed de quo dicturi simus ostendimus.
5.27. We must also ensure that it is free alike from omissions and from redundance. Redundance as a rule occurs through our dividing into species when it would be sufficient to divide into genera, or through the addition of species after stating the genus. The following will serve as an example: “I will speak of virtue, justice and abstinence.” But justice and abstinence are species of tile genus virtue.
5.27. etiam, ne quid in ea desit, ne quid supersit. autem sic fere, cum aut in species partimur, quod in genera partiri sit satis, aut genere posito subiicitur species, ut dicam de virtute, iustitia, continentia, cum iustitia atque continentia virtutis sint species.
5.28. Our first partition will be between admitted and disputed facts. Admitted facts will then be divided into those acknowledged by our opponent and those acknowledged by ourselves. Disputed facts will be divided into those which we and those which our opponents allege. But the worst fault of all is to treat your points in an order different from that which was assigned them in your proposition.
5.28. prima est, quid sit de quo conveniat, quid de quo ambigatur. eo, quod convenit, quid adversarius fateatur, quid nos; in eo, de quo ambigitur, quae nostrae propositiones, quae partis adversae. vero, non eodem ordine exsequi, quo quidque proposueris.