Institutio Oratoria

Quintilian

Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.

On the other hand it is at times possible to give the force of an exordium to other portions of the speech. For instance we may ask the judges in the course of our statement of the facts or of our arguments to give us their best attention and good-will, a proceeding which Prodicus recommended as a means of wakening them when they begin to nod. A good example is the following: [*]( Cic. pro Var. fr. 8. )

Gaius Varenus, he who was killed by the slaves of Ancharius—I beg you, gentlemen, to give me your best attention at this point.

Further if the case involves a number of different matters, each section must be prefaced with a short introduction, such as

Listen now to what follows,

I now pass to the next point.

Even in the proof there are many passages which perform the same function as an exordium, such as the passage in the pro Cluentio [*](xlii. 117.) where Cicero introduces an attack on the censors and in the pro Murena [*](iii. 7.) when he apologises to Servius. But the practice is too common to need illustration.

However on all occasions when we have employed the exordium, whether we intend to pass to the statement of facts or direct to the proof, our intention should be mentioned at the conclusion of the introduction, with the result that the transition to what follows will be smooth and easy.

There is indeed a pedantic and childish affectation in vogue in the schools of

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marking the transition by some epigram and seeking to win applause by this feat of legerdemain. Ovid is given to this form of affectation in his Metamorphoses, but there is some excuse for him owing to the fact that he is compelled to weld together subjects of the most diverse nature so as to form a continuous whole.

But what necessity is there for an orator to gloss over his transitions or to attempt to deceive the judge, who requires on the contrary to be warned to give his attention to the sequence of the various portions of the speech? For instance the first part of our statement of the facts will be wasted, if the judge does not realise that we have reached that stage.

Therefore, although we should not be too abrupt in passing to our statement of facts, it is best to do nothing to conceal our transition. Indeed, if the statement of fact on which we are about to embark is somewhat long and complicated, we shall do well to prepare the judge for it, as Cicero often does, most notably in the following passage: [*](pro Cluent. iv. 11. )

The introduction to my exposition of this point will be rather longer than usual, but I beg you, gentlemen, not to take it ill. For if you get a firm grasp of the beginning, you will find it much easier to follow what comes last.

This is practically all that I can find to say on the subject of the exordium.

II. It is a most natural and frequently necessary proceeding, that after preparing the mind of the judge in the manner described above we should indicate the nature of the subject on which he will have to give judgment: that is the statement of facts.

In dealing with this question I shall deliberately pass over the divisions made by certain writers, who make too many classes and err on the side of subtlety. For

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they demand an explanation dealing not only with the facts of the case which is before the court, but with the person involved (as in the sentence, [*](Sall. Hist. iv. 25. )

Marcus Lollius Palicanus, a Picentine of humble birth, a man gifted with loquacity rather than eloquence

) or of the place where an incident occurred (as in the sentence [*]( Cic. Verr. xxiv. 63. )

Lampsacus, gentlemen, is a town situated on the Hellespont

), or of the time at which something occurred (as in the verse [*]( Verg. G. i. 43. )

In early spring, when on the mountains hoar
The snows dissolve),

or of the causes of an occurrence, such as the historians are so fond of setting forth, when they explain the origin of a war, a rebellion or a pestilence. Further they style some statements of fact

complete,

and others

incomplete,

a distinction which is self-evident. To this they add that our explanation may refer to the past (which is of course the commonest form), the present (for which compare Cicero's [*](pro Rosc. Am. xxii. 60. ) remarks about the excitement caused among the friends of Chrysogonus when his name was mentioned), or of the future (a form permissible only to prophets): for hypotyposis or picturesque description cannot be regarded as a statement of facts.

However let us pass to matters of more importance. The majority regard the statement of facts as being indispensable: but there are many considerations which show that this view is erroneous. In the first place there are some cases which are so brief, that they require only a brief summary rather than a full statement of the facts.

This may apply to both parties to a suit, as for instance in cases where there is no necessity for explanation or where the facts are

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admitted and the whole question turns on a point of law, as it so often does in the centumviral court, as for example when we discuss, whether the heir of a woman who has died intestate should be her son or brother, or whether puberty is to be reckoned by age or by physical development. The same situation arises also in cases where the facts admit of full statement, but are well known to the judge or have been correctly set forth by a previous speaker.

Sometimes again the statement of facts can be dispensed with only by one party, who is generally the plaintiff, either because it is sufficient for him to make a simple summary of his case or because it is more expedient for him to do so. It may, for instance, suffice to say,

I claim repayment of a certain sum of money which was lent on certain conditions

I claim a legacy in accordance with the terms of the will.

It is for the other party to explain why these sums are not due to the plaintiff.

Again it is sometimes sufficient and expedient to summarise a case in one sentence such as

I say that Horatius killed his sister.

For the judge will understand the whole charge from this simple affirmation: the sequence of events and the motive for the deed will be matters for the defence to expound.

On the other hand in some cases the accused may dispense with the statement of facts, when for instance the charge can neither be denied nor palliated, but turns solely on some point of law: the following case will illustrate my meaning. A man who has stolen from a temple money belonging to a private individual is accused of sacrilege: in such a case a confession will be more seemly than a full statement of facts:

We do not deny that the
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money was taken from the temple; but the accuser is bringing a false accusation in charging my client with sacrilege, since the money was not consecrated, but private property: it is for you to decide whether under these circumstances sacrilege has been committed.

While however I think that there are occasional cases where the statement of facts may be dispensed with, I disagree with those who say that there is no statement of facts when the accused simply denies the charge. This opinion is shared by Cornelius Celsus who holds that most cases of murder and all of bribery and extortion fall into this class.

For he thinks that the only statement of facts is that which gives a general account of the charge before the court. Yet he himself acknowledges that Cicero employed the statement of facts in his defence of Rabirius Postumus, in spite of the fact that Cicero denies that any money came into the hands of Rabirius (and this was the question at issue) and gives no explanations relating to the actual charge in his statement of facts.

For my part I follow the very highest authorities in holding that there are two forms of statement of facts in forensic speeches, the one expounding the facts of the case itself, the other setting forth facts which have a bearing on the case.

I agree that a sentence such as

I did not kill the man

does not amount to a statement of facts: but there will be a statement of facts, occasionally, too, a long one, in answer to the arguments put forward by the accuser: it will deal with the past life of the accused, with the causes which have brought an innocent man into peril, and other circumstances such as show the charge to be incredible.

For the

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accuser does not merely say

You killed him,

but sets forth the facts proving his assertion: tragedy will provide an example, where Teucer accuses Ulysses of murdering Ajax, and states that he was found in a lonely place near the lifeless body of his enemy with a blood-stained sword in his hands. To this Ulysses does not merely reply that he did not do the deed, but adds that he had no quarrel with Ajax, the contest between them having been concerned solely with the winning of renown: he then goes on to say how he came to be in the lonely place, how he found Ajax lying lifeless and drew the sword from the wound. Then follow arguments based on these facts.

But even when the accuser says

You were found on the spot where your enemy was killed

and the accused says

I was not,

a statement of facts is involved; for he must say where he was. Consequently cases of bribery and extortion will require as many statements of this kind as there are charges: the charges themselves will be denied, but it will be necessary to counter the arguments of the accuser either singly or all together by setting forth the facts in quite a different light.

Is it, I ask you, irrelevant for one accused of bribery to set forth his parentage, his past life and the services on which he relied for success in his candidature? And if a man is indicted for extortion, will it not be to his advantage to set forth not merely his past record, but also the reasons which have made the whole province or the accuser or a witness hostile to himself?