For there is no single law or fixed rule governing the method of defence. We must consider what is most advantageous in the circumstances and nature of the case, and treat the wound as its nature dictates, dressing at once or, if the dressing can be delayed, applying a temporary bandage.

Again I do not regard it as a crime to repeat a statement of a fact more than once, as Cicero does in the pro Cluentio. It is not merely permissible, but sometimes necessary, as in trials for extortion and all complicated cases; and only a lunatic will allow a superstitious observance of rules to lead him counter to the interests of his case.

The reason for placing the statement of facts before the proof is to prevent the judge from being ignorant of the question at issue. Why then, if each individual point has to be proved or refuted, should not each individual point be stated as well? If my own experience may be trusted, I know that I have followed this practice in the courts, whenever occasion demanded it, and my procedure has been approved both by learned authorities and the judges themselves, while the duty of setting forth the case was generally entrusted to me. I am not boasting, for there are many with whom I have been associated as counsel, who can bring me to book if I lie.

On the other hand this is no reason for not following the order of events as a general rule. Indeed inversion of the order has at times a most unhappy effect, as for example if you should mention first that a woman has brought forth and then that she has conceived, or that a will has been read and then that it has been signed. In such cases, if you should happen to have mentioned the later incident, it is better to say nothing about the former, which must quite obviously have come first.

Sometimes, too, we get false statements of facts; these, as far as actual pleading in the courts is concerned, fall into two classes. In the first case the statement depends on external support; Publius Clodius, for instance, relied on his witnesses when he stated that he was at Interamna on the night when he committed abominable sacrilege at Rome. The other has to be supported by the speaker's native talent, and sometimes consists simply in an assumption of modesty, which is, I imagine, the reason why it is called a gloss, color is a technical term for the particular aspect given to a case by the skilful manipulation of the facts—the 'gloss' or ' varnish' put on them by the accused or accuser. — Peterson on Quint. x. i. 116. while at other times it will be concerned with the question at issue.

Whichever of these two forms we employ, we must take care, first that our fiction is within the bounds of possibility, secondly that it is consistent with the persons, dates and places involved and thirdly that it presents a character and sequence that are not beyond belief: if possible, it should be connected with something that is admittedly true and should be supported by some argument that forms part of the actual case. For if we draw our fictions entirely from circumstances lying outside the case, the liberty which we have taken in resorting to falsehood will stand revealed.

Above all we must see that we do not contradict ourselves, a slip which is far from rare on the part of spinners of fiction: for some things may put a most favourable complexion on portions of our case, and yet fail to agree as a whole. Further, what we say must not be at variance with the admitted truth. Even in the schools, if we desire a gloss, we must not look for it outside the facts laid down by our theme.

In either case the orator should bear clearly in mind throughout his whole speech what the fiction is to which he has committed himself, since we are apt to forget our falsehoods, and there is no doubt about the truth of the proverb that a liar should have a good memory.

But whereas, if the question turns on some act of our own, we must make one statement and stick to it, if it turns on an act committed by others, we may cast suspicion on a number of different points. In certain controversial themes of the schools, however, in which it is assumed that we have put a question and received no reply, we are at liberty to enumerate all the possible answers that might have been given.

But we must remember only to invent such things as cannot be checked by evidence: I refer to occasions when we make our own minds speak (and we are the only persons who are in their secret) or put words in the mouth of the dead (for what they say is not liable to contradiction) or again in the mouth of someone whose interests are identical with ours (for he will not contradict), or finally in the mouth of our opponent (for he will not be believed if he does deny).

Glosses drawn from dreams and superstitions have long since lost their value, owing to the very ease with which they can be invented. But it will avail us little to use glosses in a statement of fact, unless they are consistent throughout the whole of our speech, more especially as certain things can only be proved by persistent assertion.

Take for instance the case of the parasite who claims as his son a young man who has been thrice disinherited by a wealthy father and thrice restored to his own. He will be able to put forward as a gloss or plea that poverty was the reason why he exposed the child, that he assumed the role of a parasite because his son was in the house in question and, lastly, that the reason why the young man was thrice disinherited was simply that he was not the son of the man who disinherited him.

But unless every word that he utters reveals an ardent paternal affection, hatred for his wealthy opponent and anxiety on behalf of the youth, who will, he knows, be exposed to serious danger if he remains in the house where he is the victim of such dislike, he will be unable to avoid creating the suspicion that he has been suborned to bring the action.

It sometimes happens in the controversial themes of the schools, though I doubt whether it could ever occur in the courts, that both sides employ the same gloss and support it on their own behalf.

An example of this may be found in the theme which runs as follows. A wife has stated to her husband that her stepson has attempted to seduce her and that a time and place have been assigned for their meeting: the son has brought the same charge against his stepmother, with the exception that a different time and place are mentioned. The father finds the son in the place mentioned by the wife, and the wife in the place mentioned by the son. He divorces her, and then, as she says nothing in her own defence, disinherits the son. No defence can be put forward for the son which is not also a defence of the stepmother.

However, what is common to both sides of the case will be stated, and then arguments will be drawn from a comparison of the characters of the two parties, from the order in which they laid information against each other and from the silence of the divorced wife.

Still we must not ignore the fact that there are some cases which do not admit of any form of gloss, but must be defended forthright. An example is provided by the case of the rich man who scourged the statue of a poor man who was his enemy, and was subsequently indicted for assault. Here no one can deny that the act was outrageous, but it may be possible to maintain that it is not punishable by law.

If, however, part of the statement of facts tells in our favour and part against us, we must consider whether in view of the circumstances of the case the parts in question should be blent or kept apart. If the points which are damaging to our case be in the majority, the points which are in its favour will be swamped. Under those circumstances it will be best to keep them apart and, after setting forth and proving the points which help our case, to meet the rest by employing the remedies mentioned above.

If, on the other hand, it be the points in our favour which predominate, we may even blend them with the others, since thus the traitors in our camp will have less force. None the less these points, both good and bad, must not be set forth naked and helpless: those in our favour must be supported by some argument, and then reasons must be added why the points which tell against us should not be believed; since if we do not distinguish clearly between the two, it is to be feared that those which are favourable may suffer from their bad company.

Further rules are laid down with regard to the statement of fact, forbidding us to indulge in digression, apostrophe or argumentation or to put our words into the mouths of others. Some even add that we should make no appeal to the passions. These rules should for the most part be observed, indeed they should never be infringed unless the circumstances absolutely demand it.