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 and so on.

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 exordium. Those who hold that it should always do so must be admitted to have some reason on their side. For since the purpose of the exordium is to make the judge more favourably disposed and more attentive to our case and more amenable to instruction, and since the proof cannot be brought forward until the facts of the case are known, it seems right that the judge should be instructed in the facts without delay.

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 concerned to parry our adversary's blows before we strike him ourselves.

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 speak either first or second See note prefixed to Index. ? Those however who do not understand the reason for such a practice, think that when they appear in the courts they should stick to the custom of the schools with which they have become familiar.

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 therefore for me to devote some care to the differentiation of the various features of this portion of a speech, in order that I may show under what circumstances each is specially useful. The statement will be either wholly in our favour or wholly in that of our opponent or a mixture of both. If it is entirely in our own favour, we may rest content with the three qualities just mentioned, the result of which is to make it easier for the judge to understand, remember and believe what we say.

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.

We shall achieve lucidity and clearness in our statement of facts, first by setting forth our story in words which are appropriate, significant and free from any taint of meanness, but not on the other hand farfetched or unusual, and secondly by giving a distinct account of facts, persons, times, places and causes, while our delivery must be adapted to our matter, so that the judge will take in what we say with the utmost readiness.

This latter virtue is disregarded by the majority of speakers who are used to the noisy applause of a large audience, whether it be a chance gathering or an assembly of claqueurs, and consequently are unnerved by the attentive silence of the courts. They feel that they have fallen short of eloquence, if they do not make everything echo with noise and clamour; they think that to state a matter simply is suited only to everyday speech such as falls within the capacity of any uneducated man, while all the time it is hard to say whether they are less willing or less capable of performing a task which they despise on account of its supposed easiness.

For even when they have tried everything, they will never find anything more difficult in the whole range of oratory than that which, once heard, all think they would have said,— a delusion due to the fact that they regard what has been said as having no merit save that of truth. But it is just when an orator gives the impression of absolute truth that he is speaking best.

As it is, when such persons as these get a fair field for stating their case, they select this as the precise occasion for affected modulations of the voice, throwing back their heads, thumping their sides and indulging in every kind of extravagance of statement, language and style. As a result, while the speech, from its very monstrosity, meets with applause, the case remains unintelligible. However, let us pass to another subject; my aim is to win favour for pointing out the right road rather than to give offence by rebuking such perversity.

The statement of facts will be brief, if in the first place we start at that point of the case at which it begins to concern the judge, secondly avoid irrelevance, and finally cut out everything the removal of which neither hampers the activities of the judge nor harms our own case.

For frequently conciseness of detail is not inconsistent with length in the whole. Take for instance such a statement as the following: I came to the harbour, I saw a ship, I asked the cost of a passage, the price was agreed, I went on board, the anchor was weighed, we loosed our cable and set out. Nothing could be terser than these assertions, but it would have been quite sufficient to say I sailed from the harbour. And whenever the conclusion gives a sufficiently clear idea of the premisses, we must be content with having given a hint which will enable our audience to understand what we have left unsaid.