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Book 3 - Chapter 9
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Of judicial oratory, the departments of it often injudiciously increased; the proper number is five, § 1-6. The order to be observed in speaking and writing, 7-9.
1. I AM now to speak of the judicial kind of oratory, which is extremely varied, but lies in the two duties of attack and defense. The divisions of it, as most authors are of opinion, are five: the exordium, the statement of facts, the proof of what we advance, the refutation of our adversary, and the peroration. 2. To these some have added partition, proposition and digression, the first two of which evidently fall under proof, for you must necessarily propose what you are going to prove, as well as conclude after you have proved, and, if proposition is a division of a cause, why is not also conclusion? As for partition, it is only one of the duties of arrangement, which is a portion of oratory in general, equally pervading all its parts and the whole body of each, like invention and delivery. 3. We are, therefore, not to consider partition as one division of a speech taken as a whole, but as belonging to every single question in it, for what question is there in which the orator may not state what he is going to say in the first place, what in the second, and what in the third, and this is the business of partition. How ridiculous is it, then, that each question should be a species of proof and that partition, which is but a species of question, should be called a part of the speech as a whole? 4. But as for digression, or what has become a more common term, excessus, "excursion," if it be without the cause, it cannot be a part of the cause, and if it be within the cause, it is an aid or ornament to the parts from which it proceeds, for if whatever is in the cause is to be called a part of the cause, why is not every argument, comparison, commonplace, address to the feelings, and example, called a part of the cause?
5. I do not, however, agree with those who, like Aristotle, omit refutation as comprehended under proof, for proof establishes, while refutation overthrows. Aristotle also makes an innovation, to a certain degree, by placing next to the exordium, not the statement of facts, but the proposition, but this he does because he thinks the proposition the genus, and the statement of facts the species, and supposes that there is not always a necessity for the first, but for the second always and in all cases. 6. But with regard to the divisions which I have made, it is not to be understood that that which is to be delivered first is necessarily to be contemplated first, for we ought to consider, before everything else, of what nature the cause is; what is the question in it; what may profit or injure it; next, what is to be maintained or refuted; and then, how the statement of facts should be made. 7. For the statement is preparatory to proof and cannot be made to advantage, unless it be first settled what it ought to promise as to proof. Last of all, it is to be considered how the judge is to be conciliated, for until all the bearings of the cause be ascertained, we cannot know what sort of feeling it is proper to excite in the judge, whether inclined to severity or gentleness, to violence or laxity, to inflexibility or mercy.
8. Yet, I do not, on these accounts, agree with those who think that the exordium is to be written last, for though it is proper that our materials should be collected and that we should settle what effect is to be produced by each particular, before we begin to speak or write, yet we ought certainly to begin with that which is naturally first. 9. No man begins to paint a portrait or mold a statue with the feet, nor does any art find its completion where the commencement ought to be. Else, what will be the case if we have no time to write our speech? Will not so preposterous a practice disappoint us? The orator's materials are, therefore, to be first contemplated in the order in which we direct, and then to be written in the order in which he is to deliver them.
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