Institutio Oratoria

If these are not statements of facts, neither is the first portion of Cicero's [*](V. 11.) defence of Cluentius, beginning with the words

Aulus Cluentius Habitus.

There are also statements which do not set forth the facts of the case itself, but facts which are none the less relevant to the case: the speaker's purpose may be to illustrate the case by some parallel, as in the passage in the Verrines [*]( V. 3. The shepherd was crucifed because the carrying of arms was forbidden. ) about Lucius Domitius who crucified a shepherd because he admitted that he had used a hunting spear to kill the boar which he had brought him as a present;

or he may desire to dispel some charge that is irrelevant to the case as in the passage of the speech for Rabirius Postumus, [*]( X. 28. The charge in question was that Rabirius had worn the Greek pallium instead of the Roman toga. But as an official of the king he was forced to wear Greek dress. ) which runs as follows:

For when he came to Alexandria, gentlemen, the only means of saving his money which the king suggested to Postumus was that he should take charge of the royal household and act as a kind of steward.

Sometimes a fictitious statement is employed either to stir the emotions of the judges, as in that passage of the proo Roscio Amerino [*](xxii. 60.) dealing with Chrysogonus to which I referred just recently, or to entertain them with a show of wit, as in the passage of the pro Cluentio [*]( xx. 57 sqq. ) describing the brothers Caepasius: sometimes again a digression may be introduced to add beauty to the speech, as in the passage about Proserpine in the Verrines, [*]( IV. 48. The words quoted do not occur in our MSS of Cicero. ) beginning

It was here that a mother is once said to have sought her daughter.

Even the assertion which I made above to the effect that a statement of facts familiar to the judge is superfluous, is not to be taken too literally. My meaning is that it may be dispensed with, if the judge knows not merely what has been done, but takes a view of the facts which is favourable to our case.

For the purpose of the statement of facts is not merely to instruct, but rather to persuade the judge. Therefore, when we desire to influence him in some way or other, although he may require no instruction, we shall preface our statement with some such remarks as these:

I know that you are aware of the general nature of the case, but I trust you will not take it ill if I ask you to consider each point in detail.

At times again we may pretend that we are repeating the facts for the benefit of some new member of the jury, [*]( i.e. introduced to fill the place of a juror who had had to leave the jury. ) at times that we do so with a view to letting every bystander as well realise the gross unfairness of our opponents' assertions. Under these circumstances our statement must be diversified by a free use of figures to avoid wearying those to whom the facts are familiar: we shall for instance use phrases such as

You remember,

It may perhaps be superfluous to dwell on this point,

But why should I say more, as you are well acquainted with the fact?

You are not ignorant how this matter stands

Besides, if we are always to regard as superfluous a statement of facts made before a judge who is familiar with the case, we may even go so far as to regard it as superfluous at times to plead the case at all.

There is a further question which is still more frequently raised, as to whether the statement of facts should always follow immediately on the

But the practice may be altered by circumstances, unless it is contended that Cicero in his magnificent published defence of Milo delayed his statement too long by placing three questions before it; or unless it is argued that, if it bad been held to be impermissible to defend a man at all who acknowledged that he had killed another, or if Milo's case had already been prejudged and condemnation passed by the senate, or if Gnaeus Pompeius, who in addition to exerting his influence in other ways had surrounded the court with an armed guard, had been regarded with apprehension as hostile to the accused, it would have served his case to set forth how Clodius had set an ambush for Milo.

These three questions, then, served the purpose of an exordium, since they all of them were designed to prepare the minds of the judges. Again in the pro Vareno Cicero delayed his statement of facts until he had first rebutted certain allegations put forward by the prosecution. This may be done with advantage whenever we have not merely to rebut the charge, but to turn the tables on our opponents: thus after first rebutting the charge, we make our statement of facts the opening of an incrimination of the other party just as in actual fighting we are most

There will also not infrequently be certain cases, in which it is easy to rebut the charge that is under trial, but the conduct of which is hampered by the past life of our client and the many and serious crimes which he has committed. We must dispose of these first, in order that the judge may give a favourable hearing to our defence of the actual facts which form the question at issue. For example, if we have to defend Marcus Caelius, the best course for his advocate to adopt will be to meet the imputations of luxury, wantonness and immorality which are made against him before we proceed to the actual charge of poisoning. It is with these points that the speech of Cicero in his defence is entirely concerned. Is he then to go on to make a statement about the property of Palla and explain the whole question of rioting, a charge against which Caelius has already defended himself in the speech which he delivered on his own behalf?

We however are the victims of the practice of the schools in accordance with which certain points or themes as we call them are put forward for discussion, outside which our refutation must not go, and consequently a statement of facts always follows the exordium. It is this too that leads declaimers to take the liberty of inserting a statement of facts even when they speak second for their side.

For when they speak for the prosecution they introduce both a statement of facts, as if they were speaking first, and a refutation of the arguments for the defence, as if they were replying: and they are right in so doing. For since declamation is merely an exercise in forensic pleading, why should they not qualify themselves to

But even scholastic rhetoricians occasionally substitute a brief summary for the full statement of the facts. For what statement of the case can be made when a wife is accusing a jealous husband of maltreating her, or a father is indicting his son turned Cynic before the censors for indecent behaviour [*]( See Index, s. v. Cynicus. ) ? In both cases the charge can be sufficiently indicated by one word placed in any part of the speech. But enough of these points.

I will now proceed to the method to be adopted in making our statement of facts. The statement of facts consists in the persuasive exposition of that which either has been done, or is supposed to have been done, or, to quote the definition given by Apollodorus, is a speech instructing the audience as to the nature of the case in dispute. Most writers, more especially those of the Isocratean school, hold that it should be lucid, brief and plausible (for it is of no importance if we substitute clear for lucid, or credible or probable for plausible).

I agree with this classification of its qualities, although Aristotle [*](Rhet. iii. 16. ) disagrees with Isocrates on one point, and pours scorn on his injunction to be brief, as though it were necessary that a statement should be either long or short and it were impossible to hit the happy mean. The followers of Theodorus on the other hand recognise only plausibility on the ground that it is not always expedient that our exposition should be either short or clear.

It will be necessary

Now I should regret that anyone should censure my conduct in suggesting that a statement which is wholly in our favour should be plausible, when as a matter of fact it is true. There are many things which are true, but scarcely credible, just as there are many things which are plausible though false. It will therefore require just as much exertion on our part to make the judge believe what we say when it is true as it will when it is fictitious.

These good qualities, which I have mentioned above, do not indeed cease to be virtues in other portions of the speech; for it is our duty to avoid obscurity in every part of our pleading, to preserve due proportion throughout and to say nothing save what is likely to win belief. But they require special observance in that portion of the speech which is the first from which the judge can learn the nature of the case: if at this stage of the proceedings he fails to understand, remember or believe what we say, our labour is but lost in the remainder of the speech.