Institutio Oratoria

There is another point to which I must call attention, namely the credit which accrues to the statement of facts from the authority of the speaker. Now such authority should first and foremost be the reward of our manner of life, but may also be conferred

It is therefore specially important in this part of our speech to avoid anything suggestive of artful design, for the judge is never more on his guard than at this stage. Nothing must seem fictitious, nought betray anxiety; everything must seem to spring from the case itself rather than the art of the orator.

But our modern orators cannot endure this and imagine that their art is wasted unless it obtrudes itself, whereas as a matter of fact the moment it is detected it ceases to be art. We are the slaves of applause and think it the goal of all our effort. And so we betray to the judges what we wish to display to the bystanders.

There is also a kind of repetition of the statement which the Greeks call ἐπιδιηγήσις. It belongs to declamation rather than forensic oratory, and was invented to enable the speaker (in view of the fact that the statement should be brief) to set forth his facts at greater length and with more profusion of ornament, as a means of exciting indignation or pity. I think that this should be done but rarely and that we should never go to the extent of repeating the statement in its entirety. For we can attain the same result by a repetition only of parts. Anyone, however, who desires to employ this form of repetition, should touch but lightly on the facts when making his statement and should content himself with merely indicating what was done, while promising to set forth how it was done more fully when the time comes for it.

Some hold that the statement of facts should always begin by referring to some person, whom we must

Persons may however also be introduced with all their attendant circumstances, if such a procedure is likely to prove useful. For instance,

The father of my client, gentlemen, was Aulus Cluentius Habitus, a man whose character, reputation and birth made him the leading man not only in his native town of Larinum, but in all the surrounding district.

Or again they may be introduced without such circumstances, as in the passage beginning

For Quintus Ligarius etc.

Marcus Tullius has a farm which he inherited from his father in the territory of Thurium,

On the outbreak of the Phocian war.

As regards the conclusion of the statement of facts, there is a controversy with those who would have the statement end where the issue to be determined begins. Here is an example.

After these events the praetor Publius Dolabella issued an interdict in the usual form dealing with rioting and employment of armed men, ordering, without any exception, that Aebutius should restore the property from which he had ejected Caecina. He stated that he had done so. A sum of money was deposited. It is for you to decide to whom this money is to go.

III. In the natural order of things the statement of fact is followed by the verification. For it

This practice originated in the display of the schools of declaration and thence extended to the courts as soon as causes came to be pleaded, not for the benefit of the parties concerned, but to enable the advocates to flaunt their talents. I imagine that they feared that if the slender stream of concise statement, such as is generally required, were followed by the pugnacious tone inevitable in the arguing of the case, the speech would fall flat owing to the postponement of the pleasures of a more expansive eloquence.

The objection to this practice lies in the fact that they do this without the slightest consideration of the difference between case and case or reflecting whether what they are doing will in any way assist them, on the assumption that it is always expedient and always necessary. Consequently they transfer striking thoughts from the places which they should have occupied elsewhere and concentrate them in this portion of the speech, a practice which involves either the repetition of a number of things that they have already said or their omission from the place which was really theirs owing to the fact that they have already been said.

I admit however that this form of digression can be advantageously appended, not merely to the statement of facts, but to each of the different questions or to the questions as a whole,

For there is no part of a speech so closely connected with any other as the statement with the proof, though of course such a digression may be intended as the conclusion of the statement and the beginning of the proof There will therefore sometimes be room for digression; for example if the end of the statement has been concerned with some specially horrible theme, we may embroider the theme as though our indignation must find immediate vent.

This, however, should only be done if there is no question about the facts. Otherwise it is more important to verify your charge than to heighten it, since the horrible nature of a charge is in favour of the accused, until the charge is proved. For it is just the most flagrant crimes that are the most difficult to prove.

Again a digression may be advantageous if after setting forth the services rendered by your client to his opponent you denounce the latter for his ingratitude, or after producing a variety of charges in your statement, you point out the serious danger in which the advancement of such charges is likely to involve you.

But all these digressions should be brief. For as soon as he has heard the facts set forth in order, the judge is in a hurry to get to the proof and desires to satisfy himself of the correctness of his impressions at the earliest possible moment. Further, care must be taken not to nullify the effect of the statement by

But, though such digressions are not always necessary at the end of the statement, they may form a very useful preparation for the examination of the main question, more especially if at first sight it presents an aspect unfavourable to our case, if we have to support a harsh law or demand severe punishment. For this is the place for inserting what may be regarded as a second exordium with a view to exciting or mollifying the judge or disposing him to lend a favouring ear to our proofs. Moreover we can do this with all the greater freedom and vehemence at this stage of the proceedings since the case is already known to the judge.

We shall therefore employ such utterances as emollients to soften the harder elements of our statement, in order that the ears of the jury may be more ready to take in what we have to say in the sequel and to grant us the justice which we ask. For it is hard to persuade a man to do anything against the grain.

It is also important on such occasions to know whether the judge prefers equity or a strict interpretation of the law, since the necessity for such digression will vary accordingly.

Such passages may also serve as a kind of peroration after the main question. The Greeks call this παρέκβασις, the Romans egressus or egressio (digression). They may however, as I have said, be of various kinds and may deal with different themes in any portion of the speech. For instance we may extol persons or places, describe regions, record historical or even legendary occurrences.