Institutio Oratoria

Again we may sometimes go near condemning our client ourselves.

Do you wish me to say that you were under the influence of wine? that you made a mistake? that the darkness deceived you? That may be true. But still you committed an assault on a freeborn boy; pay your 10,000 sesterces.

All the evidence points to the guilt of three sons who had conspired against their father. After drawing lots they entered their father's bedroom while he slept, one following the other in the order predetermined and each armed with a sword. None of them had the heart to kill him, he woke and they confessed all.

If, however, the father, who has divided his estate among them and is defending them when accused of parricide, pleads as follows:

As regards my defence against the law, it suffices to point out, that these young men are charged with parricide in spite of the fact that their father still lives and is actually appearing on behalf of his children. What need is there for me to set forth the facts as they occurred since the law does not apply to them? But if you desire me to confess my own guilt in the matter, I was a hard father to them and watched over my estate, which would have been better managed by them, with miserly tenacity.

And if he then should add,

they were spurred to attempt the crime by others who had more indulgent fathers; but their real feelings towards their father have been proved by the result; they could not bring themselves to

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kill him. It would have been quite unnecessary for them to take an oath to kill him, if they had really had the heart to do the deed, while the only explanation of their drawing lots is that each of them wished to avoid the commission of the crime.

But if the question is whether an act has been committed or what its nature may be, even though everything be against us, how can we avoid a statement of facts without gross neglect of our case? The accuser has made a statement of facts facts, and has done so not merely in such a way as to indicate what was done, but has added such comments as might excite strong prejudice against us and made the facts seem worse than they are by the language which he has used. On the top of this have come the proofs, while the peroration has kindled the indignation of the judges and left them full of anger against us.

The judge naturally waits to hear what we can state in our behalf. If we make no statement, he cannot help believing that our opponent's assertions are correct and that their tone represents the truth. What are we to do then? Are we to restate the same facts? Yes, if the question turns on the nature of the act, as it will if there is no doubt about the commission, but we must restate them in a different way, alleging other motives and another purpose and putting a different complexion on the case.

Some imputations we may mitigate by the use of other words; luxury will be softened down into generosity,

For if they refuse either to defend or to state the facts, they will be giving away their whole case. If, on the other hand, they do propose to put in a defence, they must at least, as a rule, set forth what they intend to justify. Why then not state fully facts which can be got rid of and must in fact be pointed out to make that possible?

Or again what difference is there between a proof and a statement of facts save that the latter is a proof put forward in continuous form, while a proof is a verification of the facts as put forward in the statement? Let us consider therefore whether under such circumstances the statement should not be somewhat longer and fuller than usual, since we shall require to make some preliminary remarks and to introduce certain special arguments (note that I say arguments, and not argumentation), while it will add greatly to the force of our defence if we assert not once nor twice that we shall prove what we say is true and that the significance of the facts cannot be brought out by one opening statement, bidding them wait, delay forming their opinions and hope for the best.

Finally it is important to include in our statement anything that can be given a different complexion from that put upon it by our opponent. Otherwise even an exordium will be superfluous in a case of this kind. For what is its purpose if

Conjectural [*]( For this technical term = cases turning on questions of fact, see III. vi. 30 sqq. ) cases, on the other hand—that is to say questions of fact—require a statement, which will more often deal with the circumstances from which a knowledge of the point at issue may be derived than with the actual point which is under trial. When the accuser states these circumstances in such a manner as to throw suspicion on the case for the defence, and the accused has consequently to dispel that suspicion, the facts must be presented to the judge in quite a different light by the latter.

But, it may be urged, some arguments are strong when put forward in bulk, but far less effective when employed separately. My answer is that this remark does not affect the question whether we ought to make a statement of fact, but concerns the question how it should be made. For what is there to prevent us from amassing and producing a number of arguments in the statement, if that is likely to help our cause? Or from subdividing our statement of facts and appending the proofs to their respective sections and so passing on to what remains to be said?

Neither do I agree with those who assert that the order of our statement of facts should always follow the actual order of events, but have a preference for adopting the order which I consider most suitable. For this purpose we can employ a variety of figures. Sometimes, when we bring up a point in a place better suited to our purpose, we may pretend that it had escaped our notice;

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

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