Institutio Oratoria

However let us pass to matters of more importance. The majority regard the statement of facts as being indispensable: but there are many considerations which show that this view is erroneous. In the first place there are some cases which are so brief, that they require only a brief summary rather than a full statement of the facts.

This may apply to both parties to a suit, as for instance in cases where there is no necessity for explanation or where the facts are

Sometimes again the statement of facts can be dispensed with only by one party, who is generally the plaintiff, either because it is sufficient for him to make a simple summary of his case or because it is more expedient for him to do so. It may, for instance, suffice to say,

I claim repayment of a certain sum of money which was lent on certain conditions

I claim a legacy in accordance with the terms of the will.

Again it is sometimes sufficient and expedient to summarise a case in one sentence such as

I say that Horatius killed his sister.

On the other hand in some cases the accused may dispense with the statement of facts, when for instance the charge can neither be denied nor palliated, but turns solely on some point of law: the following case will illustrate my meaning. A man who has stolen from a temple money belonging to a private individual is accused of sacrilege: in such a case a confession will be more seemly than a full statement of facts:

We do not deny that the

v4-6 p.55

money was taken from the temple; but the accuser is bringing a false accusation in charging my client with sacrilege, since the money was not consecrated, but private property: it is for you to decide whether under these circumstances sacrilege has been committed.

While however I think that there are occasional cases where the statement of facts may be dispensed with, I disagree with those who say that there is no statement of facts when the accused simply denies the charge. This opinion is shared by Cornelius Celsus who holds that most cases of murder and all of bribery and extortion fall into this class.

For he thinks that the only statement of facts is that which gives a general account of the charge before the court. Yet he himself acknowledges that Cicero employed the statement of facts in his defence of Rabirius Postumus, in spite of the fact that Cicero denies that any money came into the hands of Rabirius (and this was the question at issue) and gives no explanations relating to the actual charge in his statement of facts.

For my part I follow the very highest authorities in holding that there are two forms of statement of facts in forensic speeches, the one expounding the facts of the case itself, the other setting forth facts which have a bearing on the case.

I agree that a sentence such as

I did not kill the man

For the

You killed him,

But even when the accuser says

You were found on the spot where your enemy was killed

I was not,

Is it, I ask you, irrelevant for one accused of bribery to set forth his parentage, his past life and the services on which he relied for success in his candidature? And if a man is indicted for extortion, will it not be to his advantage to set forth not merely his past record, but also the reasons which have made the whole province or the accuser or a witness hostile to himself?

If these are not statements of facts, neither is the first portion of Cicero's [*](V. 11.) defence of Cluentius, beginning with the words

Aulus Cluentius Habitus.

There are also statements which do not set forth the facts of the case itself, but facts which are none the less relevant to the case: the speaker's purpose may be to illustrate the case by some parallel, as in the passage in the Verrines [*]( V. 3. The shepherd was crucifed because the carrying of arms was forbidden. ) about Lucius Domitius who crucified a shepherd because he admitted that he had used a hunting spear to kill the boar which he had brought him as a present;

or he may desire to dispel some charge that is irrelevant to the case as in the passage of the speech for Rabirius Postumus, [*]( X. 28. The charge in question was that Rabirius had worn the Greek pallium instead of the Roman toga. But as an official of the king he was forced to wear Greek dress. ) which runs as follows:

For when he came to Alexandria, gentlemen, the only means of saving his money which the king suggested to Postumus was that he should take charge of the royal household and act as a kind of steward.

Sometimes a fictitious statement is employed either to stir the emotions of the judges, as in that passage of the proo Roscio Amerino [*](xxii. 60.) dealing with Chrysogonus to which I referred just recently, or to entertain them with a show of wit, as in the passage of the pro Cluentio [*]( xx. 57 sqq. ) describing the brothers Caepasius: sometimes again a digression may be introduced to add beauty to the speech, as in the passage about Proserpine in the Verrines, [*]( IV. 48. The words quoted do not occur in our MSS of Cicero. ) beginning

It was here that a mother is once said to have sought her daughter.

Even the assertion which I made above to the effect that a statement of facts familiar to the judge is superfluous, is not to be taken too literally. My meaning is that it may be dispensed with, if the judge knows not merely what has been done, but takes a view of the facts which is favourable to our case.

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.