Of the statement of facts; some make too nice distinctions respecting it, § 1-3. A formal statement not always necessary, 4-8. Those are mistaken who suppose that a statement is never necessary on the part of an aroused person who denies the charge, 9-19. What the judge already knows may sometimes be stated, 20-23. The statement need not always immediately follow the exordium, 24-27. The practice of the schools injudiciously transferred to the forum, 28-30. The statements should be clear, brief, and credible, 31-35. Of clearness, 36-39. Of brevity, 40-47. Of credibility, 48-53. The statement of facts should prepare the judge for the proof of them, 54-60. Certain qualities have injudiciously been made peculiar to the statement, 61-65. A ridiculous direction that the statement should be omitted in a cause which is unfavorable to us, 66. Difficult points must be variously managed, according to the nature of the case, 67-74. In a conjectural cause, we must make a statement, but with art and care, 75-81. We must sometimes divide our statement and invert the order of occurrences, 82-87. Of fictitious statements, 88-93. Complexion of a statement, 94-100. How we must act if the facts be partly for us and partly against us, 101, 102. Apostrophe and other figures absurdly excluded from the statement, 103-115. The statement should be embellished with every grace of language, 116-124. Of authority in the pleader, 125-127. Of repetition, 128. Of the commencement and conclusion of the statement, 129-132. 1. IT is most natural, and ought to be most usual, that when the judge has been prepared by the methods which have been noticed above, the matter on which he is to give judgment should be stated to him. 2. This is the narrative, or statement of the case, but in touching upon it, I shall purposely pass over the too subtle distinctions of those who make several kinds of statements. For they will have an exposition, not only of the business on which the question is brought before the judges, but of the person whom it concerns, as "Marcus Palicanus, a man of humble birth, a native of Picenum, loquacious rather than eloquent"; or of the place at which it occurred, as, "Lampsacus, judges, is a town on the Hellespont"; or of the time, as, In early spring, when from the hoary hills or of the causes of the occurrence, which historians very often give when they show whence arose a war, a sedition, or a pestilence. 3. In addition to these distinctions, they call some statements perfect, others imperfect; but who is not aware of such a difference? They add that there is a kind of statement regarding past time, which is the most common kind; another respecting the present, such as that of Cicero about the stir of Chrysogonus's friends when his name was mentioned; and a third relating to the future, which can be allowed only to prophets, for hypotyposis is not to be regarded as a statement of facts. 4. But let us turn our attention to matters of more importance. Some have thought that there must always be a statement of facts, but that this notion is unfounded may be proved by many arguments. In the first place, there are some causes so brief that they require only a mere proposition rather than a statement. 5. This may happen at times on either side, when there is either no exposition of matters, or when the parties are agreed about the fact, and there is no dispute but concerning the law, as in such questions as these before the centumviri, "Whether a son or a brother ought to be the heir of a woman that dies intestate"; or "whether puberty is to be decided by years or by a certain habit of body." Or when there is indeed room for a statement of facts in the cause, but every particular of it is previously known to the judge, or has been fully set forth in the preceding part. 6. At times, again, it may happen only on one side and more frequently on that of the prosecutor, either because it is sufficient for him to make a simple proposition or because it is more advantageous for him to do so. It may be sufficient, for instance, to say, "I claim a certain sum of money lent on certain conditions"; or, "I claim a legacy according to a certain will"; and it will be for the opposite party to show why such claims are not due. 7. It is sufficient for the prosecutor, and more advantageous, to open his cause in this way, "I say that the sister of Horatius has been killed by him," for the judge comprehends the whole charge from this one proposition, and then the way in which the act took place and the motive for it are left rather to be stated by the defendant. 8. As for the accused person, he will withhold a statement of facts, when the charge against him can neither be denied nor palliated, but will rest solely on a question of law. Thus, in the case of the man who, having stolen the money of a private person out of a temple, is accused of sacrilege, a confession will show more modesty than a statement. "We do not deny," the defendant and his advocate may say, "that the money was taken from the temple, but the accuser makes the charge that we are amenable to the law against sacrilege, though the money was private and not consecrated, and it is for you to decide the question whether sacrilege has been committed." 9. But though I allow that there are at times such reasons for giving no statement of facts, I dissent from those who think that there is no statement when an accused person merely denies the charge which is brought against him, an opinion which is held by Cornelius Celsus, who considers that most trials for murder, and all those for bribery and extortion, are of this class. 10. For he thinks that there are no statements of facts but such as give a general exposition of the charge on which judgment is to be pronounced. Yet he admits himself that Cicero gives a statement of facts in his oration for Rabirius Posthumus, though Cicero denies that any money came into the hands of Rabirius, which was the very point on which the question rested, and in his statement of facts, he gives no exposition of the charge. 11. For my part, besides resting on the authority of eminent rhetoricians, I am myself of opinion that there are two kinds of statements in judicial causes: the one sort being an exposition of the cause itself, and the other of the circumstances connected with it. 12. "I have not killed a man"—here there is no statement of facts; it is admitted that there is none. But there will be one, and sometimes a long one, in reply to the support of the accusation, and in regard to the past life of the accused, the causes by which an innocent man has been brought into peril, and other circumstances by which the charge is rendered incredible 13. For the accuser does not say merely, "You have killed," but states by what proofs he can establish his assertion, as in tragedies, when Teucer accuses Ulysses of having killed Ajax, saying that he was found in a solitary place, near the dead body of his enemy, and with a blood-stained sword in his hand. Ulysses does not merely reply that the deed was not committed by him, but affirms that there was no enmity between Ajax and himself, and that they had been rivals only for glory; he then adds how he came into that lonely spot, saw the dead body lying on the ground, and drew the sword out of the wound. To this statement are subjoined various arguments. 14. But there is a statement of fact even when the accuser says, "You were in the place in which your enemy was killed," and the defendant says, "I was not," for he must show where he was. For the same reason, causes of bribery and extortion may have several statements of this kind, as there may be several heads of accusation. In such statements, indeed, the charges will be denied, but resistance must at the same time be made to the accusers' arguments—sometimes singly, sometimes in a body—by an exposition of matters totally different from his. 15. Will a person accused of bribery act wrong in stating what sort of parents he had, how he himself has lived, or on what pretensions he relied when he proceeded to stand for office? Or if a man is accused of extortion, may he not advantageously give an account of his past life, and of the means by which he brought upon him the resentment of his whole province, or of his accuser, or some particular witness? 16. If such an account is not a statement of facts, neither is that first speech of Cicero in behalf of Cluentius, commencing with the words "Aulus Cluentius Habitus," for there is nothing in that speech about the poisoning, but merely about the causes by which his mother became his enemy. 17. Statements also relate to the cause, but are not part of the cause itself, which are given for the sake of example, as that in Cicero's speech against Verres concerning Lucius Domitius, who crucified a shepherd because he confessed that he had used a hunting-spear in killing a boar which he offered as a present to Domitius; 18. or for the purpose of exposing some charge foreign to the case, as in Cicero's oration for Rabirius Posthumus: "For as soon as he came to Alexandria, judges, the only method of preserving his money proposed by the king to Posthumus was this, that he should take the charge, and as it were stewardship, of the palace," or with the intention of exaggerating, as in the description of the journey of Verres. 19. Sometimes a fictitious statement of particulars is introduced, either to rouse the feelings of the judges, as that in the speech for Roscius respecting Chrysogonus, which I mentioned a little above, or to amuse them with a little pleasantry, as that in the speech for Cluentius regarding the brothers Cepasii, or, occasionally, to make a digression for the purpose of embellishment, as that in the speech against Verres concerning Proserpine: "It was in these parts that a mother is said formerly to have sought her daughter." All these observations assist to show that he who denies may not only make a statement, but a statement concerning the very point which he denies. 20. Nor is the observation which I made above—that a statement is superfluous respecting a matter with which the judge is acquainted—to be taken absolutely, for I wish it to be understood in this sense, that it is superfluous if the judge not only knows the fact, but takes such a view of it as is favorable to our side. 21. For a statement of facts is not made merely that the judge may comprehend the case, but rather that he may look upon it in the same light with ourselves. Though, therefore, he may not require to be informed, but only to be impressed in a certain way, we may make a statement with some preliminary remarks, as that we are aware that he has a general knowledge of the case, but entreat him not to be unwilling to listen to an account of particulars. 22. Sometimes we may pretend to repeat our statement for the information of some new member taking his seat among the judges; sometimes in order that even the by-standers may be convinced of the iniquity of what is asserted on the opposite side. In this case, the statement must be diversified with varieties of phraseology, to spare the judge the weariness of hearing what he already knows. Thus, we may say, "You remember," and, "Perhaps it may be unnecessary to dwell on this point," or, "But why should I say more on this subject, when you are already acquainted with it?" or, "Of the nature of this affair, you are not ignorant," or we may introduce various other phrases similar to these. 23. Besides, if a statement of facts seems always unnecessary before a judge to whom the cause is known, the pleading of the cause before him may seem also to be sometimes unnecessary. 24. There is another point about which there is still more frequently a question: whether the statement of facts is always to be immediately subjoined to the exordium. Those who hold the affirmative cannot be thought destitute of arguments to support them, for as the exordium is made with the intent that the judge may be rendered more favorable by it, and more willing and attentive to understand the case, and as proof cannot be adduced unless the case be previously understood, it appears right that the judge should at once be made master of the facts. 25. But the nature of a cause sometimes justly changes this order, unless, perchance, Cicero be thought, in that excellent oration which he wrote on behalf of Milo and which he has left to us, to have injudiciously delayed his statement of facts by introducing three questions before it, or unless it would have been of any profit to relate how Clodius lay in wait for Milo, if it had been supposed impossible for an accused person, who confessed that he had killed a man, to be defended, or if Milo had been already prejudged and condemned by the senate, or if Pompey, who, to favor some party, had surrounded the place of trial with a troop of armed men, had been dreaded by Milo as ill-disposed towards him. 26. These questions, therefore, were of the nature of an exordium, as they all served to prepare the judge. But in his speech for Varenus, also, he did not introduce his statement of facts until he had refuted certain allegations. This mode of proceeding will be of advantage, too, whenever the charge is not only to be resisted, but to be retorted on the opposite party, so that our own case being first established, our statement of facts may be the commencement as it were of a charge against our adversary, as, in a passage of arms, care to ward off a blow takes the precedence of anxiety to inflict one. 27. There are some causes, and indeed not a few, which are easy to be defended so far as to refute the charge on which the trial bears, but which labor under many grievous enormities of the defendant's former life, and these must first be set aside, in order that the judge may listen favourably to the defense of the point about which the question really is. Thus, when Marcus Caelius is to be defended, does not his advocate judiciously repel the imputations against him of luxury, licentiousness, and immorality, before he proceeds to consider that of poisoning? It is about these points that the whole of Cicero's pleading is employed. And does he not then make a statement about the property of Palla, and explain the whole question respecting the violence, which is defended by the pleading of Caelius himself? 28. But the custom of the schools is our guide, in which certain points are proposed for us to speak upon, which we call themata, and beyond which there is nothing to be refuted, and thus it is that our statement of facts is always subjoined to our exordium. 29. Hence, too, is the liberty which the declaimers take to make a statement of facts even when they appear to speak in the second place in a cause, for when they speak for the prosecutor, they make a statement of facts just as if they were speaking first, and a defense as if they were replying to the opposite party. Such practice is very proper, for as declamation is an exercise preparatory to pleading in the forum, why should not learners qualify themselves to take either the first or second place? But ignorant of the proceedings in the courts, they think that when they come into the forum no departure is to be made from the manner to which they have been accustomed in the schools. 30. Yet even in scholastic declamations, it occasionally happens that a mere proposition is in place of a statement of the case, for what statement has he to make who accuses a jealous man of ill-treating his wife, or he who accuses a cynic of indecency before the censors, when the whole charge is sufficiently expressed by a single word, in whatever part of the speech it be introduced? But on this head I have said enough. 31. I shall now add some remarks on the method of stating a case. A statement of a case is an account of a thing done or supposed to have been done, which account is adapted to persuade, or as Apollodorus defines it, a narrative to inform the auditor what the matter in question is. Most writers, and especially those who are of the school of Isocrates, direct that it should be lucid, brief, and probable. It is of no consequence if, instead of lucid, we say perspicuous, or, instead of probable, credible or apparently deserving of belief. 32. Of this specification I approve, though Aristotle differs from Isocrates in one particular, as he ridicules the direction about brevity, as if it were absolutely necessary that a statement should be long or short, and as if there were no possibility of fixing on a just medium. As to the followers of Theodorus, they recognize only the last quality, saying that it is not always proper to state briefly or lucidly. 33. On this account I must the more carefully distinguish the various peculiarities of statements in order to show on what occasions each quality is most desirable. A statement, then, is either wholly in our own favor, wholly in that of our opponent, or a mixture of both. If it be wholly in our own favor, we may be content with the three qualities of which the effect is that the judge more readily understands, remembers, and believes. 34. Nor let any one think me to blame for remarking that the statement which is wholly in our favor ought be made probable, though it be true, for there are many narratives true which are not probable, and many probable which are not true. We must therefore take no less pains that the judge may believe what we say truly than what we invent. 35. The qualities, indeed, which I have just enumerated are meritorious in other parts of our speech, for through our whole pleading we should avoid obscurity; a certain succinctness in what we say should be everywhere observed; and all that is advanced ought to be credible. But these qualities are most of all to be studied in that part which gives the first information to the judge, for if, in that part, he happens not to understand, not to remember, or not to believe, we shall exert ourselves to no purpose in the sequel. 36. The statement, however, will be clear and perspicuous if it is expressed, first of all, in proper and significant words, not mean, nor far-sought, nor at variance with common use, and if it gives a lucid account, also, as to circumstances, persons occasions, places, and motives, and is delivered, at the same time, in such a way that the judge may without difficulty comprehend what is said. 37. This excellence is wholly disregarded by most speakers, who, prepared for the shouts of a multitude, whether suborned for the purpose or collected by chance, cannot endure the silence of an attentive auditory and do not think themselves eloquent unless they shake the whole court with noise and vociferation. They consider that to state a matter calmly belongs only to every-day conversation and is in the power of even the most illiterate, while in truth, it is uncertain whether they will not or cannot perform that of which they express such easy contempt. 38. For if they try every department of eloquence, they will find nothing more difficult than to say what everyone, when he has heard it, thinks that he himself would have said. For this reason, he does not contemplate it as said with ability, but with truth; it is when an orator is thought to speak truth that he speaks best. 39. But now, as if they had found a wide field for themselves in their statement, they assume an extravagant tone of voice in this part of their speech, throw back their heads, strike their elbow against their sides, and revel in every sort of combination of thoughts and words. What is monstrous is that while their delivery pleases, their cause is not understood. But let me put an end to these animadversions, lest I should gain less favor by prescribing what is right than ill-will by censuring what is wrong. 40. Our statement will be sufficiently concise if, in the first place, we commence the exposition of the case at the point where it begins to concern the judge; next, if we say nothing foreign to the cause; and, lastly, if we retrench everything of which the absence will deduct nothing from the knowledge of the judge or the advantage of our client. 41. For there is often a brevity in parts, which nevertheless leaves the whole very long, as "I came to the harbor; I beheld a vessel; I asked for how much it would take me; I agreed about the price; I went on board; the anchor was weighed; we loosed our cable, and set sail." Here none of the phrases can be expressed with greater brevity, yet it would be sufficient to say, "I set sail from the harbor," and whenever the event sufficiently indicates what has preceded it, we ought to be content with expressing that from which the rest is understood. 42. As I can easily say, therefore, "I have a grown-up son," it is quite superflous for me to indulge in circumlocution and say, "Being desirous of having children, I married a wife, I had a son born to me, I reared him, and have brought him up to full age." Some of the Greek writers, accordingly, have distinguished a concise exposition, σύντομον (syntomos), from a brief one, the first being free from everything superfluous, while the other may possibly want something that is necessary. 43. For myself, I make brevity consist not in saying less, but in not saying more than is necessary. As to repetitions, and ταυτολογίαι (tautologia), and περισσολογίαι (perissologia), which some writers on rhetoric desire to be avoided in a statement of facts, I say nothing about them, since such faults are to be shunned for other reasons than that of observing brevity. 44. We must no less be on our guard, however, against that obscurity which attends on those who abbreviate every part too much, and it is better that there should be something superabundant in a statement than that anything should be wanting, for what is unnecessary is attended with weariness, but what is necessary is not withheld without danger. 45. We must consequently avoid the conciseness of Sallust (though in him it is accounted a merit) and all abruptness in our language. That which does not escape a reader who has leisure to re-examine is perhaps lost altogether upon a mere auditor, who has no opportunity of hearing it repeated. A reader, besides, is generally a person of learning, while a judge is often one whom the country sends to the courts to give a decision on what he can manage to understand; perhaps everywhere, but especially in the statement of facts, we ought to adhere to a judicious medium in our language and say just what is necessary and what is enough. 46. But by what is necessary I would not wish to be understood what is barely necessary to state a fact, for brevity ought not to be wholly unadorned or it becomes mere rudeness. What attracts us, beguiles our attention; the more agreeable a story is, the less long it appears, and a pleasant and easy road, though it be of greater extent, fatigues us less than a shorter one that is rugged and unattractive. 47. Nor would I ever have so much regard to brevity as not to wish that everything should be inserted that can make the statement of facts credible, for one that is every way plain and curtailed may be called not so much a statement as a confession. There are also many statements that are necessarily long from the nature of the case, and for attending to them, as I recommended above, the judge must be prepared by the conclusion of the exordium. We must then study, by every art in our power, to take something from the length and something from the tediousness of our narrative. 48. We shall make it somewhat less long, if we defer such particulars as we can to another part of our speech, not without specifying, however, what we defer: "What motives he had for killing him, whom he took as accomplices, how he disposed his ambush, I shall relate when I offer my proofs." 49. Some particulars, too, may be set aside, as it were, out of the course of the narrative, an expedient of which we have an example in Cicero: "Fulcinius died; for many circumstances that attended the event, I shall omit, as being unconnected with the cause." Division also lessens the tediousness of a statement: "I shall relate what took place before the commencement of the affair; I shall relate what occurred during the course of it; I shall relate what happened afterwards." 50. Thus there will appear rather to be three short narratives than a single long one. Sometimes it will be proper to break our statements by a short interlocution: "You have heard what occurred before; hear now what followed." Thus the judge will be relieved at the conclusion of the first part and will prepare himself for entering, as it were, upon a new subject. 51. But if, when all these artifices have been tried, the detail of particulars will still extend to a great length, a kind of recapitulation at the end of each part will not be without its advantage, such as Cicero gives even in a short statement: "Hitherto, Caesar, Quintus Ligarius is free from all blame; he left his home not only for no war, but without there being even the least suspicion of war," etc. 52. As to credibility in our statement, it will not be wanting if we first consult our own judgment, so as to advance nothing contrary to nature, and if, in addition, we assign causes and motives for the facts which we detail (I do not mean for all, but for those about which there is any question). If we represent our persons, at the same time, as of a character in accordance with the facts which we wish to be believed of them—a person accused of theft, for instance, as covetous; of adultery, as libidinous; of homicide, as rash—or the contrary, if we are on the defense, and we must do the same with regard to places, occasions, and similar particulars. 53. There is also a certain management of the narrative which gives it credibility, as in plays and pantomimes, for some things naturally follow and attach themselves to others, so that, if you make the first part of your statement judiciously, the judge himself will understand what you are going to say afterwards. 54. Nor will it be without advantage if we scatter here and there some seeds of proof, but so as not to forget that we are stating a series of facts and not of arguments. Occasionally, however, we may even confirm what we advance with some degree of proof, but simple and short. For example, in a case of poisoning, we may say, "He was well when he drank, he fell down suddenly, and a blackness and swelling of the body immediately followed." 55. Preparatory remarks produce the same effect, as when it is said that the accused was "strong, armed, and on his guard, in opposition to those who were weak, unarmed, and unsuspecting." On everything, indeed, of which we have to treat under the head of proof, as character, cause, place, time, instrument, occasion, we may touch in our statement of facts. 56. Sometimes, if these considerations fail us, we may even confess that "the charge, though true, is scarcely credible," but observe that "it must be regarded on this account as a greater atrocity"; that "we know not how it was committed or why"; or that "we wonder at the occurrence, but will nevertheless prove the truth of it." 57. But the best of all preparations of this kind are those of which the intention is not apparent; as in Cicero, every circumstance is most happily premised by which "Clodius may be proved to have lain in wait for Milo, and not Milo for Clodius." But what has the greatest effect is that most artful assumption of an air of simplicity: "Milo having been in the senate-house that day, returned home as soon as the senate broke up, changed his shoes and his dress, and waited a short time, while his wife, as is usual, was getting ready." 58. How well is Milo represented as having done nothing with premeditation, nothing with haste! This effect that master of eloquence produces not only by the circumstances which he narrates, and by which he signifies Milo's delay and composed manner of departure, but by the familiar and ordinary words which he uses and his well concealed art in adopting them. For if the particulars had been stated in other terms, they would have warned the judge, by their very sound, to be on his guard against the pleader. 59. To most people, this passage appears lifeless, but it is hence manifest how wholly the art escaped the judge, when it is hardly observed even by a reader. Such are the qualities that render a statement of facts credible. 60. As to directions that we should avoid contradictions or inconsistencies, if any one needs them, he will receive further instruction in vain, though some writers on rhetoric introduce such matters into their works, imagining that they were hidden from the world till they were sagaciously discovered by themselves. 61.. To these three properties of a statement of facts some add magnificence, which they call μεγαλοπρεπεία (megaloprepeia), but which is neither appropriate to all pleadings (for what place can language, raised above the ordinary level, have in most causes about private property, about loans of money, letting and hiring, and interdicts?) nor is always beneficial, as is evident from the last example from the speech for Milo. 62. Let us bear in mind, too, that there are many causes in which we have to confess, to excuse, to extenuate what we state, in all which cases magnificence of language is utterly inadmissible. It is therefore no more our business, in making a statement, to speak magnificently than to speak dolefully, or invidiously, or gravely, or agreeably, or politely, qualities which, though each is commendable in its proper place, are not to be assigned and, as it were, devoted to this part peculiarly. 63.. That quality, also, which Theodectes assigns peculiarly to the narrative of facts, desiring that it should be not only magnificent but pleasing, is, though very suitable to that part of a speech, merely common to it with other parts. There are some, too, who add clearness, or what the Greeks call ἐνάργεια (enargeia). 64. Nor will I deceive my reader so far as to conceal from him that Cicero desires several qualities in a statement of facts, for besides requiring it to be plain, concise, and credible, he would have it self-evident, characteristic, and suitable to the occasion. But everything in a speech ought to be in some degree characteristic and suitable to the occasion, as far as is possible. Self-evidence in a narrative, as far as I understand the meaning of the term, is doubtless a great merit (as what is true is not only to be told, but ought to a certain extent to make itself seen), but it may surely be included under perspicuity, which some, however, have even thought hurtful at times, because in some cases, they say, truth must be disguised. 66. But this is an absurd observation, for he who wishes to disguise truth wishes to relate what is false as if it were true, and in what he relates, he must still study that his statement may seem self-evident. 66. But since we have come, by some chance as it were, to a more difficult kind of statement, let me say something on those causes in which the truth is against us, in which case some have thought that the statement of facts should be wholly omitted. Nothing, certainly, is easier than such omission, except it be to forbear from pleading the cause altogether. But if, for some good reason, you undertake a cause of this sort, what art will there be in confessing by your silence that your cause is bad, unless you think that the judge will be so senseless as to decide in favor of that which he knows that you are unwilling to tell him. 67. I do not dispute that as some things in a statement may be denied, others added, and others altered, so likewise some may be suppressed, but such only are to be suppressed as we ought or are at liberty to suppress. This is done sometimes for the sake of brevity, as when we say, for example, "He answered what he thought proper." 68. Let us distinguish, therefore, the different kinds of causes, for in causes in which there is no question about the charge, but only about a legal point, we may, though the matter be against us, admit the truth: "He took money from a temple, but it was that of a private individual, and he has therefore not committed sacrilege"; "He carried off a maiden, yet option is not to be granted to her father"; 69. "He dishonored a well-born youth, and the youth, on being dishonored, hung himself, yet the author of his dishonor is not to be capitally punished as being the cause of his death, but is to pay ten thousand sesterces, the fine imposed on him who is guilty of such a crime." But in such confessions something of the bad impression may be removed which the statement of our opponent may have produced, since even our slaves speak apologetically concerning their own faults. 70. Some things, also, we may palliate without assuming the tone of narrative: "He did not, as our opponent alleges, enter the temple for the purpose of stealing, or watch for a favorable moment for accomplishing such object, but tempted by the opportunity, the absence of the guards, and the sight of money, which has too strong an influence over human resolution, he yielded. But what has this to do with the question? He transgressed, and became a thief? It is of no use to palliate an act of which we do not shrink from the penalty." 71. Sometimes, too, we may seem even to condemn our own client, addressing him, for example, thus: "Would you have me say that you were excited with wine? That you fell into an error? That you were led astray in the darkness? All this may perhaps be true, but you have nevertheless dishonored a free-born person; you must pay ten thousand sesterces." Sometimes, again, our cause may be guarded by a careful opening, and then fully stated. 72. Every thing was adverse to the three sons who conspired to kill their father; they had drawn lots and had entered their father's chamber, at night, one after another, while he was sleeping. But as none of them had the heart to kill him, they confessed the whole matter to him when he awoke. 73. Yet if the father (who indeed divided his estate among them and defended them when accused of parricide) should plead thus, "As to defense against the law, a charge of parricide is brought against young men whose father is still alive and appears on their behalf; to give a regular statement of the case, therefore, would be superfluous, since the law has no bearing on it. But if you require a confession of my own misconduct, I was an austere father and a tenacious guardian of that property which would have been better managed by them." 74. The father should then observe that they were prompted to the act by youths whose fathers were more indulgent, but had nevertheless such feelings as was proven by the fact that they could not kill their father. For it would have been needless for them to take an oath to kill him, if they had had the resolution to do so without it, nor would there have been any need of a lot, had not each of them been desirous to be exempted from the act. All arguments of this nature, such as they are, would find the minds of the audience more favorably disposed to receive them, when softened by the brief defense offered in the first proposition. 75. But when it is inquired whether a thing occurred, or what sort of thing occurred, how, though everything be against us, can we avoid making a statement, if we adhere to what is due to our cause? The accuser has made his statement, and, not confining himself to intimate how matters took place, has added much to our prejudice and exaggerated it by his language. His proofs have been brought, and his peroration has excited the judges and left them full of indignation; they naturally wait to hear what will be advanced on our side. 76. If we advance nothing, the judges must necessarily believe that what our opponent has said really happened, and that it happened just as he represented it. What then, it may be asked, shall we tell the same story as our opponent? If the question is about quality (which is the next consideration after that of fact is settled), we must tell the same story certainly, but not in the same way; we must assign other causes for actions and give another view of them. 77. We may extenuate some things by the terms in which we speak of them; luxury may be mentioned under the softer term of gaiety, avarice under that of frugality, and carelessness under that of good nature. A certain degree of favor, or at least of commiseration, we may gain by our look, tone, or attitude. A confession of itself will sometimes draw tears. As to those who are of a contrary opinion about a statement, I would willingly ask them whether they mean to justify or not to justify that which they do not mean to narrate. 78. For if they neither justify facts nor make a statement of them, their whole cause will be betrayed. But if they mean to offer a justification, it is surely necessary for them, for the most part, to state what they intend to justify. Why, then, should we not make a statement of that which may be refuted, and make it indeed, with that very object? 79. Or what difference is there between proof and a statement of facts, except that a statement is a connected exposition of that which is to be proved, and proof is a verification of that which has been stated? Let us consider, then, whether such a statement, in opposition to that of our opponent, ought not to be somewhat longer and more verbose than ordinary, by reason that we have to prepare the mind of the judge, and by reason of particular arguments that we may introduce (I say particular arguments, and not a continued course of argumentation). It will give great effect to our statement if we affirm, from time to time, that we shall establish what we say; that the strength of our cause could not be shown in the first exposition of it; and that we intreat the judges to wait, suspend their opinions, and trust that we shall make good our point. 80. Finally, we must relate whatever can be related otherwise than our adversary has related it; or, for the same reason, exordia in such causes may be thought superfluous, since what further purpose have they, than to render the judge more disposed to understand the cause? But it is admitted that there is nowhere greater use for them, than where the mind of the judge is to be freed from some prepossession conceived against us. 81. As to conjectural causes, in which the question is about fact, they do not so often require an explanation of the point on which a decision is to be given, as of the circumstances from which a knowledge of it is to be collected. As the prosecutor will represent those circumstances in an unfavorable light, the defendant must try to remove the unfavorable impression produced by him; the circumstances must be laid before the judge by the one in a different way from that in which they are presented to him by the other. 82. But, it may be said, some arguments are strong when advanced in a body, but of less force when separated. This remark, I answer, does not apply to the question of whether we ought to make a statement, but how we ought to make one. For what hinders us from accumulating a variety of evidence in our statement, promising to produce more, and dividing our statement into portions, to give proofs under each portion as it is brought forward and so proceed to what follows? 83. For I do not agree with those who think that we must always relate matters in the order in which they occurred; I consider rather that we should relate them in the order which is best for our cause. This may be effected by various artifices, for sometimes we may pretend that something has escaped our memory, with a view to introduce it into a place better suited to our purpose; sometimes we may quit the proper order, and assure the judge that we shall afterwards return to it, as the case will thus be rendered clearer; sometimes, after relating a fact, we may subjoin the motives that preceded it. 84. For there is no fixed law for a defense or any invariable rule; we must consider what is best adapted to the nature of the case and to the occasion, and must act as in regard to a wound, which, according to its state, must either be dressed at once, or, if the dressing can be delayed, must be bound up in the meanwhile. 85. Nor would I consider it unlawful to repeat a thing several times, as Cicero has done in his speech for Cluentius, a liberty which is not only allowed to be taken, but is sometimes even necessary, as in cases of extortion and all such as are not at all complicated. It is the part of a fool, indeed, to be led by a superstitious regard for rules to act against the interest of his cause. 86. It is the practice to put the statement of facts before the proofs, that the judge may not be ignorant of the point about which the question is. Why, then, if every circumstance is to be established or refuted, is not every circumstance to be stated in our narrative? For myself, as far as any account is to be made of my practice, I know that I used to adopt that method whenever the interest of any cause required it, and with the approbation, too, of men of experience and of those who sat in judgment; in general, the duty of stating the case was assigned to me (a remark which I do not make from vanity, for there are many with whom I was associated in pleading who can contradict me if I speak falsely). 87. Yet I would not on that account say that we should not more frequently follow the order of facts. In some facts, the order cannot be changed without impropriety, as if we should say, for example, that a woman had a child and should afterwards say that she conceived, or that a will was opened and then that it was sealed. If, in speaking of such matters, you chance to mention first that which happened last, it is best to make no allusion to that which happened first. 88. There are also at times false statements, of which two kinds are introduced in the forum: one which depends on extrinsic support, as Publius Clodius rested his cause on the testimony of witnesses when he affirmed that he was at Interamna the night on which he committed a heinous crime at Rome, the other, which must be supported by the ability of the pleader; this relies sometimes on a mere assumption of modesty in him, whence it appears to me to be called complexion, and sometimes on a peculiar representation of the case. 89. But whichsoever of the two modes we adopt, our first care must be that what we invent is possible; next that it be in accordance with person, place, and time, and have a character and order that are probable; and, if it be practicable, our representation should be connected with something that is acknowledged to be true or be supported by some argument relative to the question, for what is altogether sought from without the cause is apt to betray the license which we take in inventing. 90. We must be extremely watchful, too, that no two particulars (as often happens with tellers of fiction) contradict one another (for some things may suit very well with certain parts of our case, and yet not agree with each other on the whole), and also that they be not at variance with what is acknowledged to be true. It is a maxim even in the schools that the complexion is not to be sought from without the argument. 91. But both in the schools and in the forum, the speaker ought to keep in mind throughout the whole case what he has invented, since what is not true is apt to be forgotten, and the common saying is just: that a liar ought to have a good memory. 92. Let us consider, also, that if the question be concerning an act of our own, we must adhere to one particular statement, but if concerning the act of another, we may bring it under a variety of suspicious aspects. In some scholastic causes, however, in which it is supposed that a person under accusation does not answer to the questions put to him, liberty is granted to enumerate all the answers that might have been given. 93. But let us remember that we are to feign only such things as are not liable to be disproved by evidence. These are such as proceed only from our own thoughts, of which we alone are conscious; such as are supposed to have been said by the dead, of whom none will appear to refute them; or by one who has the same interest with ourselves, for he will not contradict us; or even by our adversary, as in denying them he will gain no credit. 94. As to imputed motives from dreams and superstitious feelings, they have lost all credibility from the ease with which they are invented. Nor is it sufficient to adopt a certain "color" in our statement of facts, unless it preserve a consistency through the whole case, especially as the only mode of establishing certain points lies in asseveration and persistence. 95. The parasite who claims as his son a youth that had been three times disinherited by a rich man, and allowed to return to him, will have some "color" by asserting that poverty was his reason for exposing the boy, that the character of parasite was assumed by him merely because he had a son in that house, and that the innocent youth was disinherited three times only because he was not the son of the person who disinherited him. 96. But he will not escape the suspicion of being a suborned claimant unless he exhibit throughout all his speech the affection of a father, and that in the most ardent manner, together with the hatred of the rich man towards the youth, and his own fear for him, as knowing that he will stay with the greatest danger in a house in which he is so detested. 97. It happens at times in the declamations of the schools (I know not whether it can possibly happen in the forum) that both parties make the same allegations, and each supports them on its own behalf, as in this cause: 98. "A wife informed her husband that her step-son had endeavored to seduce her, and had appointed a time and place for their meeting; the son, on his part, brought a similar charge against his step-mother, only naming a different time and place; the father finds his son in the place which the wife had named, and his wife in that which the son had named; he divorced his wife, and, as she said nothing, disinherited his son." Nothing can be said on behalf of the young man which may not also be said on behalf of his step-mother. 99. What is common, however, to both parties will be stated, and then arguments will be drawn from the comparison of persons, from the order in which the informations were given, and from the silence of the wife when divorced. 100. Nor ought we to be ignorant that there are some cases which do not admit of any coloring but are simply to be defended, as was that of the rich man who lashed with a scourge the statue of a poorer man that was his enemy, and was in consequence accused of committing an insult. A pleader cannot say in palliation of such an act that it was that of a sensible man, but he may perhaps succeed in defending it from penalty. 101. But if part of a statement be in our favor and part against us, we must deliberate, according to the nature of the case, whether we ought to blend those parts together or keep them distinct. If the facts which make against us be the more numerous, those which are in our favor will be overwhelmed by them. In such a case, then, it will be best to divide them, and, after stating and confirming the circumstances that are favorable to us, to adopt against the rest such remedies as we have already specified. 102. If the facts in our favor be the more numerous, we may very well unite them, that those which are adverse to us, being placed as it were in the midst of our auxiliaries, may have less force. Neither the one nor the other, however, are to be exposed undefended, but we must take care to support such as favor us with proof, and add reasons why such as are against us are not to be credited, because unless we make a distinction, it is to be feared that the good may be polluted by the contamination of the evil. 103. The following directions, too, are commonly given respecting the statement of facts: that no digression is to be made from it; that we are to address ourselves constantly to the judge; that we are to speak in no character but our own; and that we are to introduce no argumentation; and some even add that we are not to attempt to excite the feelings. These precepts, doubtless, are to be in general observed, or, I may say, never to be departed from unless the nature of our cause obliges us to disregard them. 104. In order that our statement may be clear and concise, nothing can be so seldom justifiable in it as digression, nor ought there ever to be any except such as is short and of such a nature that we may seem to be hurried into it, out of our right course, by the strength of our feelings. 105. Such is that of Cicero respecting the marriage of Sassia: "Oh, incredible wickedness in a woman, such as has not been heard of in the whole course of human life, except in this one female! Oh, unbridled and immoderate lasciviousness! Oh, unparalleled audacity! Not to have feared, if not the power of the gods or the opinion of men, at least that very night and those nuptial torches! Not to have respected the threshold of the chamber, or the couch of her daughter, or the very walls themselves, the witnesses of her former marriage!" 106. As to constantly addressing the judge, a brief diversion of our speech from him sometimes intimates a thing more concisely and gives it more effect. On this point, accordingly, I hold the same opinion as I expressed respecting the exordium, and I think the same with regard to the prosopopeia, which, however, not only Servius Sulpicius has used in his defense of Aufidia, "That you were languid with sleep, should I suppose, or oppressed with a heavy lethargy?" etc., but Cicero himself, in speaking of the ship-masters (for that passage is a statement of facts) exclaims, "For liberty to enter, you will give so much," etc. 107. In his pleading for Cluentius, too, does not the conversation between Stalenus and Bulbus contribute greatly to the rapidity of the narrative and to its credibility? And that he may not be supposed to have fallen into this manner undesignedly (a supposition which is indeed wholly incredible with regard to such an orator) he recommends, in his Oratorical Partitions, that the statement of facts should display agreeableness, something to excite surprise and expectation, unexpected results, conversations between different people, and all the feelings of the mind. 108. Continued argumentation, as I observed, we must never use in our statement of facts, though we may introduce a single argument occasionally, as Cicero does in his speech for Ligarius when he says that he had governed his province in such a way as made it expedient for him that there should be peace. We may also introduce in our statement, if the subject requires, a short defense of our client's conduct or a reason for it, for we are not to state things as a witness, but as an advocate. 109. The simple account of a fact may be such as this: "Quintus Ligarius went into Africa as lieutenant-general with Caius Considius." But how does Cicero give it? "Quintus Ligarius, when there was not even a suspicion of war, went into Africa as lieutenant-general with Caius Considius." 110. In another place, again, "He set out, not only to no war, but not even upon the least suspicion of war." When it was sufficient for him, too, in proceeding to state a fact, to say, "Quintus Ligarius allowed himself to be involved in no transaction," he adds, "looking back to his home and being desirous to return to his friends." Thus what he stated he made credible by giving a reason for it, and made a strong impression, at the same time, on the feelings of his audience. 111. I am the more surprised at those, therefore, who think that we are not to touch the feelings in a statement of facts. If they mean, indeed, that we are not to work on them long, or as in the peroration, they agree with me, for tediousness is to be avoided, otherwise, why should I not move the judge while I am instructing him? 112. Why should I not secure, if possible, at the very opening of my case, the object which I am desirous to attain at the conclusion of it, especially as I shall find his mind more manageable, when I come to proofs, if it has previously been swayed by indignation or pity? 113. Does not Cicero, in a very few words, touch all the feelings by describing the scourging of a Roman citizen, not only showing the condition of the sufferer, the place of the outrage, the nature of the infliction, but extolling the spirit with which he bore it? For he exhibits him as a man of great magnanimity, who, when he was lashed with rods, uttered no groan and made no supplication, but only exclaimed that he was a Roman citizen, to the disgrace of his oppressor, and with confidence in the laws. 114. Has he not also, through the whole of his statement, excited the greatest detestation of the treatment of Philodamus, and caused the tears of his audience to overflow at his punishment, not so much relating that they wept, as exhibiting them weeping, the father, that his son was to die, and the son that his father was to die? What more touching could any peroration present? 115. It is late, too, to bring the feelings, at the end of a speech, to bear on particulars which we have previously narrated with coolness; the judge has become familiarized to them and hears, without any excitement, that with which he was not moved when it was new to him; and it is difficult for us to change the temper of his mind when once it is settled. 116. For my own part (for I will not conceal my opinion, though that which I am going to say rests rather upon experience than upon precepts), I think that the statement of facts requires, as much as any part of a speech, to be adorned with all the attractions and grace of which it is susceptible. But it makes a great difference what the nature of the case which we state is. 117. In the smaller sort of cases, therefore, such as private ones in general are, the garb of the statement ought to be neat, and, as it were close-fitting; there should be the greatest care with regard to words which, when we enlarge upon the common topics of morality, are poured forth with rapidity. Particular expressions are often lost in the profusion of language in which they are enveloped, but here every word ought to be expressive and, as Zeno says, tinctured with peculiar signification. The style should be apparently artless, but as agreeable as possible; 118. there should be no figures borrowed from poetry and received on the authority of the ancients contrary to the simplicity of language (for the diction should be as pure as possible), but such only as lessen tedium by variety and relieve attention by change, so that we may not fall into similar terminations, similar phrases, and similar constructions. For a statement has no other attractions and, if it be not recommended by such graces, must fail to please. 119. Nor is the judge in any part more attentive, and consequently nothing that is expressed with effect is lost upon him. Besides, he is more inclined, I know not how, to believe what gratifies his ear and is led by being pleased to being persuaded. 120. But when the cause is of greater moment, it will be proper to speak of heinous crimes in a tone of invective and of mournful occurrences in one of pity, not that the topics for exciting the feelings may be exhausted, but that an outline of them, as it were, may be presented, and that it may at once appear what the full picture of the case will be. 121. Nor would I dissuade a speaker from reviving the strong feeling of the judge, when exhausted with attention, by some remark, especially if thrown in with brevity, such, for instance, as this: "The servants of Milo did what everyone would have wished his servants to do in such circumstances," or occasionally perhaps, a little more boldly, as this: "The mother-in-law marries her son-in-law, without auspices, without any to sanction the union and with the most fatal omens." 122. As this practice was adopted even in days when every speech was composed rather for use than for show and the judges were still more austere, how much more aptly may it be done now, when pleasure has made its way even into trials for life and fortune? How far we ought to conform to this taste of our age, I will give my opinion in another place. Meantime, I allow that some concession is to be made to it. 123. A probable representation of circumstances which appears to conduct the audience, as it were, to a view of the case has, when subjoined to what is really true, a powerful effect such, for example, as the description given by Marcus Caelius of Antonius: "They find him sunk in the sleep of drunkenness, snoring with the whole force of his lungs and repeating eructation on eructation, while the most distinguished of his female companions was stretched across towards him from their several couches, and the rest lying round in every direction; 124. who, however, becoming aware of the approach of the enemy, attempted, half dead with terror, to awaken Antonius; they called him aloud by name to no purpose; they raised his head; one whispered gentle sounds into his ear; another struck him forcibly with her hand; but when at length he became conscious of the voice and touch of each, he only threw his arms round the neck of her that was next to him; he could neither sleep after being roused, nor keep awake from the effects of drunkenness, but was tossed about, half asleep and half awake, in the hands of centurions and harlots." Nothing could be imagined more probable than this description; nothing offered as a greater subject of reproach; nothing exhibited more vividly. 125. Nor can I omit to remark how much credit the authority of the speaker gives to his statement, an authority which we ought to secure chiefly by our general conduct, but also by our style of oratory, since the more grave and serious it is, the more weight it must give to our assertions. 126. We must especially avoid, therefore, in this part of our speech, all suspicion of artifice (for nowhere is the judge more on his guard) so that nothing may appear fictitious or studied, but that all may be thought to emanate rather from the cause than from the advocate. 127. But this manner our modern pleaders cannot tolerate; we think that our art is lost if it is not seen, whereas art, if it is seen, ceases to be art. We dote upon praise and think it the great object of our labor, and thus betray to the judges what we wish to display to the bystanders. 128. There is also a sort of repetition of the statement, which is called by the Greeks ἐπιδιήγησις (epidiēgēsis), a thing more common in school declamations than in the forum. It was introduced with this object: that as the statement of facts ought to be brief, the case might afterwards be set forth more fully and with more embellishment in order to move indignation or pity. I think we seldom should have recourse to this practice and never so as to repeat the whole order of circumstances, for we may effect the same object by recurring to particulars here and there. Let him, however, that shall determine on such repetition, touch but lightly on facts in his statement, and, contenting himself with relating what has been done, promise to explain more fully how it was done in the proper place. 129. As to the commencement of a statement of facts, some think that it ought to be made with reference to some character, whom, if he is on our side, we are to extol, and, if adverse to us, to attack. This certainly is a very common mode of proceeding, because on each side there are persons between whom the dispute lies. 130. But they may sometimes be introduced with descriptive circumstances, when such a course is likely to be advantageous, as "Judges, Aulus Cluentius Habitus was the father of my client, a man who held the highest position, not only in the municipal town of Larinum, in which he was born, but in all that country and neighborhood, for his merit, reputation, and respectability of birth"; sometimes without them: as, "when Quintus Ligarius had set out, etc." 131. Sometimes, however, we may commence with a fact, as Cicero in his speech for Tullius: "Marcus Tullius possesses an estate inherited from his father in the territory of Thurium"; or as Demosthenes in behalf of Ctesiphon: "For the Phocian war having broken out, etc." 132. As to the end of the statement, it is a matter of dispute with those who think that the statement itself should be brought down to the point where the question arises: as, "These things having thus happened, Publius Dollabella the praetor published an edict, as is customary with regard to violence and men appearing in arms, without any exception, only that Aebutius should reinstate Caecina in the place from which he had expelled him. He said that he had reinstated him. A sum of money was deposited, and it is concerning this deposit that you must decide." This can always be done on the side of the prosecutor, but not always on that of the defendant.
|
