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statement of facts, but the proposition; but this he does because he thinks the proposition the genus, and the statement of facts the species; and supposes that there is not always a necessity for the first, but for the second always and in all
But with regard to the divisions which I have made, it is not to be understood that that which is to be delivered first is necessarily to be contemplated first; for we ought to consider, before everything else, of what nature the cause is; what is the question in it; what may profit or injure it; next, what is to be maintained or refuted; and then, how the statement of facts should be made. For the statement is preparatory to proof, and cannot be made to advantage, unless it be first settled what it ought to promise as to proof. Last of all, it is to be considered how the judge is to be conciliated; for, until all the bearings of the cause be ascertained, we cannot know what sort of feeling it is proper to excite in the judge, whether inclined to severity or gentleness, to violence or laxity, to inflexibility or mercy.
Yet, I do not, on these accounts, agree with those who think that the exordium is to be written last; for though it is proper that our materials should be collected, and that we should settle what effect is to be produced by each particular, before we begin to speak or write, yet we ought certainly to begin with that which is naturally first. No man begins to paint a portrait, or mold a statue, with the feet; nor does any art find its completion where the commencement ought to be. Else what will be the case if we have no time to write our speech ? Will not so preposterous a practice disappoint us? The orator's materials are, therefore, to be first contemplated in the order in which we direct, and then to be written in the order in which he is to deliver them.
THE EXORDIUM – HOW TO BEGIN A SPEECH
That which is called the beginning, or exordium in Latin, the Greeks seem with
greater reason to have termed the “præemium ); for by our writers is signi
fied only a commencement, but the Greek rhetoricians plainly show that this is the part preliminary to the entrance on the subject on which the orator is to speak. ... In giving an exordium at all there is no other object but to prepare the hearer to listen to us more readily in the subsequent parts of our pleading. This object, as is agreed among most authors, is principally effected by these means, by securing his good-will and attention, and by rendering him desirous of further information; not that these ends are not to be kept in view throughout the whole pleading, but because they are pre-eminently necessary at the commencement, when we gain admission as it were into the mind of the judge in order to penetrate still further into it.
As to good-will, we either gain it from persons connected with the cause, or have it from the cause itself. But in respect to persons, regard is not to be had to three only (as most rhetoricians have supposed), the prosecutor, the defendant, and the judge; for the exordium sometimes takes its complexion from the character of the pleader; and though he speaks sparingly and modestly concerning himself, yet, if he be deemed a good man, much influence, in reference to the whole cause, may depend on that consideration; for he will then be thought to bring to the support of his party not merely the zeal of an advocate, but almost the testimony of a witness. Let him be regarded as coming to plead, therefore, from being induced by obligations of kindred or friendship, or above all, if it be possible, by respect for his country, or for some strong considerations of precedent. This, without doubt, is still more to be observed by the parties themselves, so that they may seem to go to law from some important and honorable motive, or even from necessity.
But as the authority of the speaker becomes thus of the highest efficacy, if, in his undertaking the business, all suspicion of meanness, or hatred, or ambition, be far removed from him, so it is a sort of tacit commendation to him, if he represents himself as weak, and inferior in ability to those acting against him, a practice which is adopted in most of the exordia of Messala. For there is a natural feeling in behalf of those oppressed; and a conscientious judge most willingly listens to an advocate whom he does not suspect of any design to draw him from justice. Hence arose that dissembling of the speakers of antiquity to conceal their eloquence, so extremely different from the ostentation of our times.
We must also take care not to appear insolent, malignant, overbearing, or reproachful towards any man or body of men, especially such as cannot be wounded without exciting an unfavorable feeling in the judge. That nothing should be said against the judge himself, not only openly, but nothing even that can be understood as averse to him, it would be foolish in me to advise, if such things did not sometimes take place.
The character of the advocate for the opposite party may sometimes afford us matter for an exordium; if we speak of him sometimes with honor, making it appear that we fear his eloquence and influence, so as to render them objects of suspicion to the judge; or sometimes, though very rarely, with contempt, as Asinius Pollio, in pleading for the heirs of Urbinia, enumerates the choice of Labienus as advocate for the opposite party among the proofs of the badness of their cause. Cornelius Celsus denies that such remarks constitute exordia, as having no relation to the cause; I, however, am led to form a contrary opinion, not only by the authority of the greatest authors, but because I consider, for my own part, that whatever relates to the pleader of the cause relates to the cause itself; since it is but natural that judges should be more inclined to believe those whom they are more inclined to
As to the character of the prosecutor, it may be treated in various ways; sometimes his worth may be asserted, sometimes his weakness commended to notice. Sometimes a statement of his merits may be proper, when a pleader may speak with less reserve in praise of another's worth than he would in that of his own. Sex, age, condition, are of great influence, as in the case of women, old men, or wards, when they plead in the character of wives, parents, or children. Commisera. tion alone, indeed, has effect even upon a right-minded judge. But such matters are to be lightly touched, and not exhausted, in an exordium.
The character of the adversary is commonly attacked with references to topics of a similar nature, but directed against him; for on the powerful envy must be shown to attend, on the mean and abject, contempt; on the base and criminal, hatred; three qualities that have great power in alienating the favor of the judges. Nor is it enough merely to state such particulars (for this is in the power even of the ignorant), but most of them must be magnified or extenuated, as may be expedient; for to give effect to them is the business of the orator; the mere expression of them may be inherent in the cause itself.
The favor of the judge we shall conciliate, not merely by offering him praise (which ought, indeed, to be given with moderation, though it is to be remembered at the same time that the privilege of offering it is common to both parties), but by turning his praises to the advantage of our cause, appealing, in behalf of the noble to his dignified station, in behalf of the humble to his justice, in behalf of the unfortunate to his pity, in behalf of the injured to his severity; and using similar appeals in other cases. I should wish also, if possible, to know the character of the judge, for, according as it may be violent, gentle, obliging, grave, austere, or easy, it will be proper to make his feelings subservient to our cause where they fall in with it, and to soften them where they are repugnant to it.
But it sometimes happens, also, that he who sits as judge is either our enemy or the friend of our opponent, a circumstance which ought to claim the attention of both sides, but more particularly, perhaps, of that to which the judge seems to incline. For there is sometimes, in unprincipled judges, a foolish propensity to give sentence against their friends, or in favor of parties with whom they are at enmity, and to act unjustly that they may not seem to be unjust.
Some have been judges, too, in their own causes. I find, for instance, in the books of observations published by Septimius, that Cicero was engaged in a cause of that nature; and I myself pleaded the cause of Queen Berenice before that queen herself. In this case the mode of procedure is similar to that in those which I have just mentioned; for he who pleads in opposition to the judge exaggerates the confidence of his client, and he who pleads in his favor expresses apprehension of feelings of delicacy on his part. Opinions, moreover, such as the judge may appear to have brought with him in favor of either party are to be overthrown or established. Fear is sometimes to be removed from the mind of the judge; as Cicero, in his speech for Milo, strove to convince the judges that they were not to think the arms of Pompey arrayed against them; and sometimes to be held out to them, as Cicero acted in his pleadings against Verres. ...
If the nature of the cause itself afford us topics for conciliating the judge, it will be proper, above all, that such of them be selected for introduction into the exordium as may appear most favorable to our object. On this head Virginius is in error, for he says Theodorus is of opinion that from every question in the cause some thought may be selected for the exordium. Theodorus does not say this, but merely that the judge is to be prepared for the most important points; a precept in which there would be nothing objectionable, if it did not enjoin that as a general rule which every pleading does not admit, and which every cause does not require. For when we rise to open the case on behalf of the prosecutor, while it is still unknown to the judge, how shall we bring forward thoughts from every question in it ? Surely the subject must previously be stated. Let us admit that some questions may then be brought forward (for so the form of our pleading sometimes requires), but must we, therefore, bring forward all the most important ones, that is, the whole cause? If so, the statement of facts will be dispatched in the exordium. Or if, as frequently happens, the cause is somewhat difficult, should we not try to gain the good-will of the judge in other parts of the pleadings, and not present the bare roughness of every point to his mind before we have attempted to incline it in our favor ? If such matters were always rightly managed at the opening of a speech, there would be no need of any formal exordium. At times, accordingly, some particulars, which may be of great effect in conciliating the favor of the judge, may be previously introduced, and not without advantage, in the commencement.
What points, again, are likely to gain us favor in causes, it is not necessary for me to enumerate; for they will be manifest to the pleader, when he understands the nature of a cause; and all particulars, in so great a variety of suits, cannot possibly be specified. But as it is for the service of a cause to discover and amplify its favorable points, so it is expedient to refute, or at least to extenuate, whatever is prejudicial to it. Compassion may also spring from the nature of our cause, if we have suffered, or are likely to suffer, any severe misfortune.
Nor am I inclined, as some are, to think that an exordium differs from a peroration only in this respect, that in a peroration is narrated what has gone before, and in an exordium is set forth what is to come. The difference rather lies in this, that in the introduction the kind feelings of the judge should be touched, but cautiously and modestly; while in the peroration we may give full scope to the pathetic, we may attribute fictitious speeches to our characters, and evoke the dead and produce their children; attempts which are not made in exordia.
But as to those feelings of pity, which I mentioned above, it is necessary not only to excite them in our favor in the exordium, but to turn away the effect of them from our opponent; and as it is for our advantage that our lot should be thought likely to be deplorable if we should be defeated, so is it that the pride of our adversary should be apprehended as likely to be overbearing if he should con
But exordia are often taken from matters which are not properly concerns of our clients or their causes, but which yet in some way relate to both of them. With the persons of our clients are connected not only their wives and children, to whom I have previously alluded, but their relatives and friends, and sometimes countries and cities, and whatever else may be injured by the failure of those whom we are defending. To the cause, among external circumstances, may be referred the occasion, from which is derived the exordium in behalf of Cælius: the place, from which is taken that in behalf of Deiotarus; the appearance of things, whence that in behalf of Milo; public opinion, whence that against Verres; and in short, that I may not specify everything, the report respecting the trial, the expectation of the people; for, though none of these things form part of the cause, they yet have a connection with the cause. Theophrastus adds that an exordium may be derived from the form of the pleading, as that of Demosthenes for Ctesiphon appears to be, when he entreats to be allowed to speak as he himself may think most proper, rather than according to the mode which the prosecutor has laid down in his charge.
SECOND PART OF A SPEECH – THE STATEMENT OF FACTS
It is most natural, and ought to be most usual, that when the judge has been I prepared by the methods which have been noticed above, the matter on which
he is to give judgment should be stated to him. This is the narrative, or statement of the case; but, in touching upon it, I shall purposely pass over the too subtle distinctions of those who make several kinds of statements....
A statement of a case is an account of a thing done, or supposed to have been done; which account is adapted to persuade; or, as Apollodorus defines it, «a narrative to inform the auditor what the matter in question is.) Most writers, and especially those who are of the school of Isocrates, direct that it should be lucid. brief, and probable. It is of no consequence if, instead of lucid, we say perspicuous, or, instead of probable, credible, or apparently deserving of belief. Of this specification 1 approve; though Aristotle differs from Isocrates in one particular, as he ridicules the direction about brevity, as if it were absolutely necessary that a statement should be long or short, and as if there were no possibility of fixing on a just medium. As to the followers of Theodorus, they recognize only the last quality, saying that it is not always proper to state briefly or lucidly. On this account I must the more carefully distinguish the various peculiarities of statements, in order to show on what occasions each quality is most desirable.
A statement, then, is either wholly in our own favor, wholly in that of our opponent, or a mixture of both. If it be wholly in our own favor, we may be content with the three qualities of which the effect is that the judge more readily
understands, remembers, and believes. Nor let any one think me to blame for remarking that the statement which is wholly in our favor ought to be made probable, though it be true; for there are many narratives true which are not probable, and many probable which are not true. We must therefore take no less pains that the judge may believe what we say truly than what we invent. The qualities, indeed, which I have just enumerated are meritorious in other parts of our speech; for through our whole pleading we should avoid obscurity; a certain succinctness in what we say should be everywhere observed; and all that is advanced ought to be credible. But these qualities are most of all to be studied in that part which gives the first information to the judge; for if, in that part, he happens not to understand, not to remember, or not to believe, we shall exert ourselves to no purpose in the sequel.
The statement, however, will be clear and perspicuous, if it be expressed, first of all, in proper and significant words, not mean, nor far sought, nor at variance with common use, and if it give a lucid account, also, as to circumstances, persons, occasions, places, and motives, and be delivered, at the same time, in such a way that the judge may without difficulty comprehend what is said. This excellence is wholly disregarded by most speakers, who, prepared for the shouts of a multitude, whether suborned for the purpose or collected by chance, cannot endure the silence of an attentive auditory, and do not think themselves eloquent unless they shake the whole court with noise and vociferation; they consider that to state a matter calmly belongs only to every-day conversation, and is in the power of even the most illiterate, while, in truth, it is uncertain whether they will not or cannot perform that of which they express such easy contempt. For if they try every department of eloquence, they will find nothing more difficult than to say what every one, when he has heard it, thinks that he himself would have said; and for this reason, that he does not contemplate it as said with ability, but with truth; but it is when an orator is thought to speak truth that he speaks best. But now, as if they had found a wide field for themselves in their statement, they assume an extravagant tone of voice in this part of their speech, throw back their heads, strike their elbows against their sides, and revel in every sort of combination of thoughts and words; while (what is monstrous !) their delivery pleases, and their cause is not understood. But let me put an end to these animadversions, lest I should gain less favor by prescribing what is right than ill-will by censuring what is wrong.
Our statement will be sufficiently concise, if, in the first place, we commence the exposition of the case at the point where it begins to concern the judge; next, if we say nothing foreign to the cause; and, lastly, if we retrench everything of which the absence will deduct nothing from the knowledge of the judge or the advantage of our client. For there is often a brevity in parts, which, nevertheless, leaves the whole very long; as, “I came to the harbor; I beheld a vessel; I asked for how much it would take me; I agreed about the price; I went on board; the anchor was weighed; we loosed our cable, and set sail.» Here none of the phrases can be expressed with greater brevity; yet it would be sufficient to say, “I set sail from the harbor); and whenever the event sufficiently indicates what has preceded it, we ought to be content with expressing that from which the rest is understood. As I can easily say, therefore, I have a grown-up son, » it is quite superfluous for me to indulge in circumlocution and say, “Being desirous of having children, I mar. ried a wife, I had a son born to me, I reared him, and have brought him up to full age.» Some of the Greek writers, accordingly, have distinguished a concise exposition, oivrouov, from a brief one, the first being free from everything superfluous, while the other may possibly want something that is necessary. For myself,