Institutio Oratoria, Book IV
Chapter 5
5 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 may slip the memory of the judge and disturb his attention. But that is no reason why it should be tied down to a definite number of propositions, since the case may quite conceivably require more. 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, or You do well to remind me. For if we set forth all that we propose to prove in advance, we shall deprive ourselves of the advantage springing from the charm of novelty. 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 merely to instruct: the power of eloquence is greatest in emotional appeals. Now there is no room for passion if we devote our attention to minute and microscopic division at a time when we are seeking to mislead the judgment of the person who is trying the case. 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, in that case all the proofs which you propose to bring before this, the final proof, must needs seem superfluous to the judge. 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, whom he will treat as bound by his promise. On the other hand, if he is busy, or holds exalted position, or is intolerant by nature, he will insist in no very courteous manner on his coming to the point.
For these reasons there are some who disapprove of the partition adopted by Cicero in the pro Cluentio, 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, secondly, that previous judgments had been passed by those very judges by whom he was condemned, and finally, that Cluentius made no attempt to bribe the jury, but that his opponent did. They argue that if the third point can be proved, there is no need to have urged the two preceding. On the other hand you will find no one so unreasonable or so foolish as to deny that the partition in the pro Murena 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. These words make the case as clear as possible, and no one division renders any other superfluous. 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. What, they ask, is the value of the first part, if the second can be proved, since they are mutually inconsistent, and if anyone employs both arguments, we should believe neither? This contention is partially justified; we should employ the second alone only if the fact can be proved without a doubt. 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, 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 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, he will be all the readier to listen to our defence of our client's character. Thus the two points will render mutual assistance to each other; the judge will be more attentive to our legal proofs owing to his hope that we shall proceed to a vindication of character and better disposed to accept that vindication because we have proved our point of law. But although partition is neither always necessary nor useful, it will, if judiciously employed, greatly add to the lucidity and grace of our speech.
For it not only makes our arguments clearer by isolating the points from the crowd in which they would otherwise be lost and placing them before the eyes of the judge, but relieves his attention by assigning a definite limit to certain parts of our speech, just as our fatigue upon a journey is relieved by reading the distances on the milestones which we pass. For it is a pleasure to be able to measure how much of our task has been accomplished, and the knowledge of what remains to do stimulates us to fresh effort over the labour that still awaits us. For nothing need seem long, when it is definitely known how far it is to the end. Quintus Hortensius deserves the high praise which has been awarded him for the care which he took over his partitions, although Cicero more than once indulges in kindly mockery of his habit of counting his headings on his fingers. For there is a limit to gesture, and we must be specially careful to avoid excessive minuteness and any suggestion of articulated structure in our partition. If our divisions are too small, they cease to be limbs and become fragments, and consequently detract not a little from the authority of our speech. Moreover, those who are ambitious of this sort of reputation, in order that they may appear to enhance the nicety and tile exhaustive nature of their division, introduce what is superfluous and subdivide things which naturally form a single whole. The result of their labours is, however, not so much to increase the number of their divisions as to diminish their importance, and after all is done and they have split up their argument into a thousand tiny compartments, they fall into that very obscurity which the partition was designed to eliminate. The proposition, whether single or multiple, must, on every occasion when it can be employed with profit, be clear and lucid; for what could be more discreditable than that a portion of the speech, whose sole purpose is to prevent obscurity elsewhere, should itself be obscure? Secondly it must be brief and must not be burdened with a single superfluous word; for we are not explaining what we are saying, but what we are going to say. We must also ensure that it is free alike from omissions and from redundance. Redundance as a rule occurs through our dividing into species when it would be sufficient to divide into genera, or through the addition of species after stating the genus. The following will serve as an example: I will speak of virtue, justice and abstinence. But justice and abstinence are species of the genus virtue. Our first partition will be between admitted and disputed facts. Admitted facts will then be divided into those acknowledged by our opponent and those acknowledged by ourselves. Disputed facts will be divided into those which we and those which our opponents allege. But the worst fault of all is to treat your points in an order different from that which was assigned them in your proposition.
1 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.
2 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.
3 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 may slip the memory of the judge and disturb his attention. But that is no reason why it should be tied down to a definite number of propositions, since the case may quite conceivably require more.
4 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, or You do well to remind me. For if we set forth all that we propose to prove in advance, we shall deprive ourselves of the advantage springing from the charm of novelty.
*5* 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.
6 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 merely to instruct: the power of eloquence is greatest in emotional appeals. Now there is no room for passion if we devote our attention to minute and microscopic division at a time when we are seeking to mislead the judgment of the person who is trying the case.
7 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.
8 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.
9 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, in that case all the proofs which you propose to bring before this, the final proof, must needs seem superfluous to the judge.
10 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, whom he will treat as bound by his promise. On the other hand, if he is busy, or holds exalted position, or is intolerant by nature, he will insist in no very courteous manner on his coming to the point.
11 For these reasons there are some who disapprove of the partition adopted by Cicero in the pro Cluentio, 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, secondly, that previous judgments had been passed by those very judges by whom he was condemned, and finally, that Cluentius made no attempt to bribe the jury, but that his opponent did. They argue that if the third point can be proved, there is no need to have urged the two preceding.
12 On the other hand you will find no one so unreasonable or so foolish as to deny that the partition in the pro Murena 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. These words make the case as clear as possible, and no one division renders any other superfluous.
13 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. What, they ask, is the value of the first part, if the second can be proved, since they are mutually inconsistent, and if anyone employs both arguments, we should believe neither? This contention is partially justified; we should employ the second alone only if the fact can be proved without a doubt.
14 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.
15 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.
16 I would not however entirely condemn the order mentioned above, 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,
17 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.
18 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.
19 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.
20 We may also at times pretend to say certain things against the wishes of our clients, as Cicero 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,
21 he will be all the readier to listen to our defence of our client's character. Thus the two points will render mutual assistance to each other; the judge will be more attentive to our legal proofs owing to his hope that we shall proceed to a vindication of character and better disposed to accept that vindication because we have proved our point of law.
22 But although partition is neither always necessary nor useful, it will, if judiciously employed, greatly add to the lucidity and grace of our speech. For it not only makes our arguments clearer by isolating the points from the crowd in which they would otherwise be lost and placing them before the eyes of the judge, but relieves his attention by assigning a definite limit to certain parts of our speech, just as our fatigue upon a journey is relieved by reading the distances on the milestones which we pass.
23 For it is a pleasure to be able to measure how much of our task has been accomplished, and the knowledge of what remains to do stimulates us to fresh effort over the labour that still awaits us. For nothing need seem long, when it is definitely known how far it is to the end.
24 Quintus Hortensius deserves the high praise which has been awarded him for the care which he took over his partitions, although Cicero more than once indulges in kindly mockery of his habit of counting his headings on his fingers. For there is a limit to gesture, and we must be specially careful to avoid excessive minuteness and any suggestion of articulated structure in our partition. If our divisions are too small,
25 they cease to be limbs and become fragments, and consequently detract not a little from the authority of our speech. Moreover, those who are ambitious of this sort of reputation, in order that they may appear to enhance the nicety and tile exhaustive nature of their division, introduce what is superfluous and subdivide things which naturally form a single whole. The result of their labours is, however, not so much to increase the number of their divisions as to diminish their importance, and after all is done and they have split up their argument into a thousand tiny compartments, they fall into that very obscurity which the partition was designed to eliminate.
26 The proposition, whether single or multiple, must, on every occasion when it can be employed with profit, be clear and lucid; for what could be more discreditable than that a portion of the speech, whose sole purpose is to prevent obscurity elsewhere, should itself be obscure? Secondly it must be brief and must not be burdened with a single superfluous word; for we are not explaining what we are saying, but what we are going to say.
27 We must also ensure that it is free alike from omissions and from redundance. Redundance as a rule occurs through our dividing into species when it would be sufficient to divide into genera, or through the addition of species after stating the genus. The following will serve as an example: I will speak of virtue, justice and abstinence. But justice and abstinence are species of the genus virtue.
*28* Our first partition will be between admitted and disputed facts. Admitted facts will then be divided into those acknowledged by our opponent and those acknowledged by ourselves. Disputed facts will be divided into those which we and those which our opponents allege. But the worst fault of all is to treat your points in an order different from that which was assigned them in your proposition.