Institutio Oratoria

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.