Institutio Oratoria

V. Partition may be defined as the enumeration in order of our own propositions, those of our adversary or both. It is held by some that this is indispensable on the ground that it makes the case clearer and the judge more attentive and more ready to be instructed, if he knows what we are speaking about and what we are going subsequently to speak about.

Others, on the contrary, think that such a course is dangerous to the speaker on two grounds, namely that sometimes we may forget to perform what we have promised and may, on the other hand, come upon something which we have omitted in the partition. But this will never happen to anyone unless he is either a fool or has come into court without thinking out his speech in detail beforehand.

Besides, what can be simpler or clearer than a straightforward partition ? It follows nature as a guide and the adhesion to a definite method is actually of the greatest assistance to the speaker's memory. Therefore I cannot approve the view even of those who lay down that partition should not extend beyond the length of three propositions. No doubt there is a danger, if our partition is too complicated, that it

There are further reasons why we should sometimes dispense with partition. In the first place there are many points which can be produced in a more attractive manner, if they appear to be discovered on the spot and not to have been brought ready made from our study, but rather to have sprung from the requirements of the case itself while we were speaking. Thus we get those not unpleasing figures such as

It has almost escaped me,

I had forgotten,

You do well to remind me.

Sometimes we shall even have to hoodwink the judge and work upon him by various artifices so that he may think that our aim is other than what it really is. For there are cases when a proposition may be somewhat startling: if the judge foresees this, he will shrink from it in advance, like a patient who catches sight of the surgeon's knife before the operation. On the other hand, if we have given him no preliminary notice and our words take him unawares, without his interest in them having been previously roused by any warning, we shall gain a credence which we should not have secured had we stated that we were going to raise the point.

At times we must not merely avoid distinguishing between the various questions, but must omit them altogether, while our audience must be distracted by appeals to the emotion and their attention diverted. For the duty of the orator is not

Again, there are certain arguments which are weak and trivial when they stand alone, but which have great force when produced in a body. We must, therefore, concentrate such arguments, and our tactics should be those of a sudden charge in mass. This, however, is a practice which should be resorted to but rarely and only under extreme necessity when reason compels us to take a course which is apparently irrational.

In addition it must be pointed out that in any partition there is always some one point of such special importance, that when the judge has heard it he is impatient with the remainder, which he regards as superfluous. Consequently if we have to prove or refute a number of points partition will be both useful and attractive, since it will indicate in order what we propose to say on each subject. On the other hand, if we are defending one point on various grounds partition will be unnecessary.

If you were to make a partition such as the following,

I will not say that the character of my client is such as to render him incapable of murder, I will only say that he had no motive for murder and that at the time when the deceased was killed he was overseas,

For the judge is always in a hurry to reach the most important point. If he has a patient disposition he will merely make a silent appeal to the advocate,

For these reasons there are some who disapprove of the partition adopted by Cicero in the pro Cluentio, [*]( iv. 9. Oppianicus had been indicted by Cluentius for an attempt upon his life and condemned. The previous judgments referred to were condemnations of his accomplices, which made Oppianicus' condemnation inevitable. Oppianicus was condemned, and it was alleged that this was due to bribery by Cluentius. Cluentius was now on his trial for the alleged murder of various persons. ) where he premises that he is going to show, first,

that no man was ever arraigned for greater crimes or on stronger evidence than Oppianicus,

that previous judgments had been passed by those very judges by whom he was condemned,

that Cluentius made no attempt to bribe the jury, but that his opponent did.

On the other hand you will find no one so unreasonable or so foolish as to deny that the partition in the pro Murena [*](v. 11.) is admirable.

I understand, gentlemen, that the accusation falls into three parts, the first aspersing my client's character, the second dealing with his candidature for the magistracy, and the third with charges of bribery.

There are also a number who are in doubt as to a form of defence which I may exemplify as follows:

If I murdered him, I did right; but I did not murder him.

But if we have any doubts as to being able to prove the stronger argument, we shall do well to rely on both. Different arguments move different people. He who thinks that the act was committed may regard it as a just act, while he who is deaf to the plea that the act was just may perhaps believe that it was never committed: one who is confident of his powers as a marksman may be content with one shaft, whereas he who has no such confidence will do well to launch several and give fortune a chance to come to his assistance.

Cicero in the pro Milone reveals the utmost skill in showing first that Clodius laid an ambush for Milo and then in adding as a supernumerary argument that, even if he had not done so, he was nevertheless so bad a citizen that his slaying could only have done credit to the patriotism of the slayer and redounded to his glory.

I would not however entirely condemn the order mentioned above, [*](§ 13.) since there are certain arguments which, though hard in themselves, may serve to soften those which come after. The proverb,

If you want to get your due, you must ask for something more,

is not wholly unreasonable. Still no one should interpret it to mean that you must stop short of nothing. For the Greeks are right when they lay it down as a rule that we should not attempt the impossible. But whenever the double-barrelled defence of which I am speaking is employed, we must aim at making the first argument support the credibility of the second. For he who might without danger to himself have confessed to the commission of the act, can have no motive for lying when he denies the commission.

Above all it is important, whenever we suspect that the judge desires a proof other than that on which we are engaged, to promise that we will satisfy him on the point fully and without delay, more especially if the question is one of our client's honour.

But it will often happen that a discreditable case has the law on its side, and to prevent the judges giving us only a grudging and reluctant hearing on the point of law, we shall have to warn them with some frequency that we shall shortly proceed to defend our client's honour and integrity, if they will only wait a little and allow us to follow the order of our proofs.

We may also at times pretend to say certain things against the wishes of our clients, as Cicero [*](lii.) does in the pro Cluentio when he discusses the law dealing with judicial corruption. Occasionally we may stop, as though interrupted by our clients, while often we shall address them and exhort them to let us act as we think best. Thus we shall make a gradual impression on the mind of the judge, and, buoyed up by the hope that we are going to clear our client's honour, he will be less ill-disposed toward the harder portions of our proof. And when he has accepted these,