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I make brevity consist, not in saying less, but in not saying more, than is neces- *•* sary; for as to repetitions, which some writers on rhetoric desire to be avoided. ia :::: a statement of facts, I say nothing about them, since such faults are to be shužined :inis for other reasons than that of observing brevity.


IN THE order of things the confirmation follows the statement; for we must prove

what we stated only that it might be proved. But before I proceed to treat of

this part, I must make a few observations on the opinions of certain rhetoricians.

It is the custom of most speakers, when the order of facts is set forth, to make a digression to some pleasing and attractive moral topic, so as to secure as much favorable attention as possible from the audience. This practice had its rise in the declamatory ostentation of the schools, and passed from thence into the forum, after causes began to be pleaded not to benefit the parties going to law, but to enable the advocates to make a display; from apprehension, I suppose, that if the stubbornness of argument should immediately follow the dry conciseness of narrative (such as is often necessary), and the gratification of eloquent diction should be too long withheld, their whole oration would appear cold and repulsive. To this custom there is this objection, that the speakers indulge in it without making due distinction of causes, and what particular causes require, but as if such displays of eloquence were always expedient or even necessary; and in consequence they force into their digression matters taken from other parts to which they properly belong; so that many things must either be said over again, or, as they have been said in a place to which they had no right, cannot be said in their own. I admit, however, that this sort of excursion may be advantageously introduced, not only after the statement of the case, but after the different questions in it, altogether or sometimes severally, when the subject requires or at least permits it; and I think that a speech is by such means greatly set off and embellished; provided that the dissertation aptly follows and adheres to what precedes, and is not forced in like a wedge, separating what was naturally united. For no part of a speech ought to be more closely attached to any other part than the proof is to the statement; unless, indeed, the digression be intended either as the end of the statement or as the beginning of the proof. There will, therefore, sometimes be room for it; for instance, if our statement, towards the conclusion, contains something very heinous, we may enlarge upon it, as if our indignation, like our breath, must necessarily have vent. This, however, ought to be done only when the matter does not ad. mit of doubt; else it is of more importance to make your charge true than atrocious; because the enormity of an accusation is in favor of the accused as long as it remains unproved, for belief in the commission of a heinous crime is extremely difficult. A digression may also be made with advantage, if, for example, when you have spoken of services rendered to the opposite party, you proceed to inveigh against ingratitude; or if, when you have set forth a variety of charges in your statement, you show how much danger in consequence threatens yourself. But all these must be signified briefly; for the judge, when he has learned the order of the facts, is impatient for the proof of them, and desires as soon as possible to settle his opinion. You must be cautious, also, that your exposition of the case be not forgotten, through the attention of the judge being turned to something else, or fatigued with useless delay.


THERE are some writers who place the proposition after the statement of facts,

as a division of a speech on any matter for judgment. To this notion I have

already replied. In my opinion the commencement of any proof is a proposition, which may be advanced not only in stating the principal question, but sometimes even to introduce particular arguments. ...

Propositions are single, double, or complex; a distinction which results from more than one cause; for several charges may be combined, as when Socrates was accused of corrupting the youth and introducing new superstitions; or one charge may be established by several proofs, as when it was alleged against Æschines that he had acted dishonestly in his embassy, because he had spoken falsely; because he had done nothing in conformity with the directions given him; because he had tarried; because he had accepted presents. The defense may also contain several propositions; as, in an action to recover a debt it may be said, You have no right to demand it, for it was not in your power to become an agent; nor had he, in whose name you act, a right to have an agent; nor are you the heir of him from whom I am said to have borrowed; nor was I indebted to him. Such examples may be multiplied at pleasure; but it is sufficient to have pointed out that such is the case. If these allegations are stated singly, with proofs subjoined, they are so many distinct propositions; if they are combined, they come under the head of partition.

A proposition is sometimes, also, entirely bare, as is generally the case in conjectural causes: I accuse of murder; I charge with theft; sometimes it is accompanied with a reason,-as, Caius Cornelius has been guilty of treason against the dignity of the tribunate, for he himself, when tribune of the people, read his own law before the public assembly. The proposition which we bring forward, too, is sometimes our own,--as, I accuse this man of adultery; sometimes that of our adversary, - as, The charge against me is that of adultery; sometimes affecting both parties,- as, The question between my opponent and me is, which of the two is the nearer of kin to a person who has died intestate. Sometimes, moreover, we may couple opposite propositions, -as, I say thus, my adversary thus. ...

Partition is the enumeration, according to their order, of our own propositions, or those of our adversary, or both; an enumeration which some think that we should always make, because, by its aid, the cause is rendered clearer, and the judge more observant and attentive, if he knows exactly on what point we are speaking, and on what points we intend to speak afterwards. Some, on the other hand, think it dangerous to a speaker, for two reasons: that some things, on which we promise to speak, may escape our memory, and others, which we may have omitted in our specification, may occur to us; but nothing of this kind can happen except to one who is utterly deficient in ability, or one who brings to his pleading nothing settled or premeditated. Otherwise, what method is so plain and clear as that of a proper division of our matter? for it follows nature as a guide, so as to be the greatest aid to the memory, to prevent us from straying from our proposed course in speaking. I cannot, therefore, agree with those who think that our partition should not exceed three propositions, Doubtless, if it be too multifarious, it will escape the recollection of the judge, and perplex his attention; but it is not to be confined, as by a law, to this or that number, when a cause may possibly require more,

There are other reasons why we should not always adopt a partition; first, because most observations please better when they appear to be conceived on the moment, and not to be brought from home, but to spring from the subject itself as we are discussing it; and hence the common expressions, I had almost forgotten, It had escaped me, You aptly remind me, are by no means ill received. If you lay down your course of proof beforehand, all pleasure of novelty is cut off from the sequel of your speech. Sometimes, too, the judge must be misled, and wound upon to and wrought upon by various artifices, that he may suppose something else to be

an intended than what is really our object. A proposition is sometimes startling, and a judge, if he sees it prematurely, dreads it as a patient dreads the surgeon's instrument before an operation is performed; but if, without any proposition being advanced beforehand, our observations come upon him when off his guard, and penetrate his mind, without any warning, when wrapt up, as it were, in itself, they will make him believe that which he would have distrusted if we had advanced it at first. Occasionally, too, we should avoid not only the distinction of questions, but the mention of them altogether; the judge should have his feelings strongly moved, and his attention diverted; for to instruct is not the only duty of an orator; the power of eloquence is best shown in producing excitement. But to such an effect that minute carefulness in division, scrupulously separated into parts, at a time when we should endeavor to deprive the judge of the power of deciding against us, is directly opposed. Are not arguments, also, that are light and weak when detached, often of great force in a body ? Such arguments, accordingly, should rather be collected in a mass, and we should make a sally with them, as it were, upon the judge; an expedient which should rarely, however, be adopted, and only in case of necessity, when reasoning forces us to that which seems contrary to reasoning. In addition, it is to be considered that there is, in every division of a case, some one point of more importance than the rest, and when the judge has become acquainted with it, he is apt to disdain other points as requiring no notice. Consequently, if more charges than one are to be established or overthrown, a' partition is both advantageous and agreeable, in order that what we have to say on each head may distinctly be shown; but if we have to combat one charge by various arguments it is needless. . . .

The proposition of a cause, whether divided or single, ought, whenever it can be introduced with advantage, to be, above all, plain and clear (for what can be more disgraceful than to make that obscure which is adopted for no other purpose than that other parts may not be obscure ?) and it should also be brief, and not loaded even with a single useless word; for we must remember that we have not to show what we are saying, but what we are going to say. We must be cautious, too, that nothing may be deficient in it, and nothing redundant. The most frequent cause of redundancy is, when we divide into species what it would be sufficient to divide into genera; or when, after mentioning the genus, we add species to it, as if we should speak of virtue, justice, temperance, when justice and temper-. ance are but species of virtue.

The first step in partition is to distinguish what is admitted and what is disputed. Next, in regard to what is admitted, to distinguish what our adversary admits, and what we admit; and, in respect to what is disputed, to specify what our propositions are, and what those of our opponent. But what is most culpable is not to treat of your several points in the order in which you have arranged them.

As an argument is a process of reasoning affording a proof, by which one thing is gathered from another, and which establishes what is doubtful by reference to what is certain, there must assuredly be something in a cause that does not require proof; for unless there be something which is true, or which appears true, and from which support may be gained for what is doubtful, there will be no ground on which we can prove anything. As certainties, accordingly, we have, in the first place, what is perceived by the senses, as what we see, what we hear, as signs or indications; next, what is admitted by the general consent of mankind, as that there are gods, and that respect is to be paid to parents; also, what is established by the laws, or what is passed into general usage, with the concurrence, if not of the whole world, at least of that community or people among whom we have to plead, as indeed, in what is called legal right, most points are settled, not by positive laws, but by common custom; and, lastly, whatever is agreed between the two parties, whatever is proved, or whatever our adversary does not dispute.

Let us now examine the places of arguments; although, indeed, the topics of which I have previously spoken are regarded as places of argument by some rhetoricians. By places, let me observe, I mean, not common places, in the sense in which the word is generally understood, in reference to luxury, adultery, or such subjects; but the seats of arguments, in which they lie concealed, and from which they must be drawn forth. For as all kinds of fruits are not produced in all countries, and as you will be unable to find a bird or a beast, if you are ignorant where it is usually produced or makes its abode, and as, among the several kinds of fishes, some delight in a smooth and others in a rocky bottom of the water, while particular sorts are confined to particular regions or coasts, and you could not attract the ellops or the scarus to our shores, so every kind of argument is not to be got from every place, and is consequently not everywhere to be sought; otherwise there would be much wandering about, and, after enduring the utmost labor, we should not be able to find, unless by chance, that for which we should seek without method. But if we ascertain where particular arguments offer themselves, we shall, when we come to the place where they lie, easily discern what is in it.


THE repetition and summing up of heads, which is called by the Greeks 'avakepanaswois. L and by some of the Latins enumeration," is intended both to refresh the mem

ory of the judge, to set the whole cause at once before his view, and to enforce such arguments in a body as had produced an insufficient effect in detail. In this part of our speech, what we repeat ought to be repeated as briefly as possible, and we must, as is intimated by the Greek term, run over only the principal heads; for, if we dwell upon them, the result will be, not a recapitulation, but a sort of second speech. What we may think necessary to recapitulate, must be put forward with some emphasis, enlivened by suitable remarks, and varied with different figures, for nothing is more offensive than mere straightforward repetition, as if the speaker distrusted the judge's memory. The figures which we may employ are innumerable; and Cicero affords us an excellent example in his pleading against Verres. . . .

A feeling of the judge in our favor is sought but modestly at the commencement, when it is sufficient that it be just admitted, and when the whole speech is before us; but in the peroration we have to mark with what sort of feeling the judge will proceed to consider his sentence, as we have then nothing more to say, and no place is left us for which we can reserve further arguments. It is therefore common to each party to endeavor to attract the favor of the judge towards himself, to withdraw it from his adversary, to excite the feelings and to compose them; and this very brief admonition may be given to both parties, that a pleader should bring the whole force of his cause before his view, and, when he has noticed what, among its various points, is likely, or may be made likely, to excite disapprobation or favor, dislike or pity, should dwell on those particulars by which he himself, if he were judge, would be most impressed. But it is safer for me to consider the parts of each separately.

What recommends the prosecutor to the judge, I have already noticed in the precepts which I have given for the exordium. Some particulars, however, which it is sufficient to intimate in the commencement, must be stated more fully in the conclusion, especially if the cause be undertaken against a violent, odious, or dangerous character, or if the condemnation of the accused will be an honor to the judges, and his acquittal a disgrace to them. Thus Calvus makes an admirable remark in his speech against Vatinius; «You know, judges, that bribery has been committed, and all men know that you know it.» Cicero, too, in pleading against Verres, observes that the disrepute which had fallen on the courts might be effaced by the condemnation of Verres »; and this is one of the conciliatory modes of address to which I have before alluded....

Our supplications for pity should not be long; as it is observed, not without reason, that nothing dries sooner than tears. For, since time lessens even natural Sorrows, the representation of sorrow, which we produce in a speech, must lose its effect still sooner; and if we are prolix in it, the hearer, wearied with tears, will recover his tranquillity, and return from the emotion which had surprised him, to the exercise of his reason. Let us not allow the impressions that we make, there. fore, to cool, but, when we have raised the feelings of our audience to the utmost, let us quit the subject, and not expect that any person will long bewail the misfortunes of another. Not only in other parts of our speech, accordingly, but most of all in this part, our eloquence ought gradually to rise; for whatever does not add to that which has been said, seems even to take away from it, and the feeling which begins to subside soon passes away.

We may excite tears, however, not only by words, but by acts; and hence it becomes a practice to exhibit persons on their trial in a squalid and pitiful garb, accompanied with their children and parents; hence, too, we see blood-stained swords produced by accusers, with fractured bones extracted from wounds, and garments spotted with blood; we behold wounds unbound, and scourged backs exposed to view. The effect of such exhibitions is generally very strong. so that they fix the attention of the spectators on the act as if it were committed before their eyes. The blood-stained toga of Julius Cæsar, when exhibited in the forum, excited the populace of Rome almost to madness. It was known that he was killed; his body was even stretched on the bier; yet his robe, drenched in blood, excited such a vivid idea of the crime, that Cæsar seemed not to have been assassinated, but to be subjected to assassination at that very moment. But I would not for that reason approve of a device of which I have read, and which I have myself seen adopted, a representation, displayed in a painting or on a curtain, of the act at the atrocity of which the judge was to be shocked. For how conscious must a pleader be of his inefficiency, who thinks that a dumb picture will speak better for him than his own words! But an humble garb, and wretched appearance, on the part as well of the accused as of his relatives, has, I know, been of much effect; and I am aware that entreaties have contributed greatly to save accused persons from death. To implore mercy of the judges, therefore, by the defendant's dearest objects of affection (that is to say, if he has children, wife, or parents), will be of great advantage, as well as to invoke the gods, since such invocation seems to proceed from a clear conscience. To fall prostrate, also, and embrace the knees of the judge, may be allowable at times, unless the character of the accused, and his past life and station, dissuade him from such humiliation; for there are some deeds that ought to be defended with the same

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