§4.2.23illud quale sit, tu scias, et his similia.
You would know what sort of thing that is, and things similar to these.
alioqui si apud iudicem, cui nota causa est, narratio semper videtur supervacua, potest videri non semper esse etiam ipsa actio necessaria.
Otherwise, if before a judge to whom the case is known, the statement of facts always seems superfluous, the pleading itself also can seem not to be always necessary.
§4.2.24alterum est, de quo frequentius quaeritur, an sit utique narratio prooemio subiicienda; quod qui opinantur, non possunt videri nulla ratione ducti.
The other is, about which it is more frequently asked, whether the statement of facts must by all means be subjoined to the introduction; those who think so cannot seem to be guided by no reason.
nam cum prooemium idcirco comparatum sit, ut iudex ad rem accipiendam fiat conciliatior, docilior, intentior, et probatio nisi causa prius cognita non possit adhiberi, protinus iudex notitia rerum instruendus videtur.
For since the introduction has been prepared for this purpose, that the judge may become more favorable, more receptive, and more attentive to receiving the matter, and proof cannot be applied unless the case is first known, the judge immediately seems to need to be instructed with the knowledge of the facts.
§4.2.25sed hoc quoque interim mutat condicio causarum; nisi forte M. Tullius in oratione pulcherrima, quam pro Milone scriptam reliquit, male distulisse narrationem videtur tribus praepositis quaestionibus; aut profuisset exponere, quomodo insidias Miloni fecisset Clodius, si reum, qui a se hominem occisum fateretur, defendi omnino fas non fuisset, aut si iam praeiudicio senatus damnatus esset Milo, aut si Cn. Pompeius, qui praeter aliam gratiam iudicium etiam militibus armatis clauserat, tanquam adversus ei timeretur.
But the condition of cases also sometimes changes this; unless perhaps Marcus Tullius, in that most beautiful speech which he left written for Milo, seems to have delayed the statement of facts badly by prefixing three questions; or would it have been of advantage to set forth how Clodius had laid an ambush for Milo, if it had not been lawful at all to defend a defendant who confessed that a man had been killed by him, or if Milo had already been condemned by the preliminary judgment of the senate, or if Gnaeus Pompeius, who besides his other influence had also enclosed the court with armed soldiers, was feared as if he were hostile to him?
§4.2.26ergo hae quoque quaestiones vim prooemii obtinebant, cum omnes iudicem praepararent.
Therefore, these questions also held the force of an introduction, since they all prepared the judge.
sed pro Vareno quoque postea narravit quam obiecta diluit.
But for Varenus also he made his statement of facts after he refuted the charges.
quod fiet utiliter, quotiens non repellendum tantum erit crimen, sed etiam transferendum, ut his prius defensis velut initium sit alium culpandi narratio, ut in armorum ratione antiquior cavendi quam ictum inferendi cura est.
Which will be done with advantage as often as a charge must not only be repelled but also transferred, so that when these are first defended, the statement of facts may be, as it were, a beginning of blaming another, just as in the method of arms the care of guarding is more ancient than that of inflicting a blow.
§4.2.27erunt quaedam causae (neque id raro) crimine quidem, de quo cognitio est, faciles ad diluendum sed multis anteactae vitae flagitiis et gravibus oneratae; quae prius amovenda sunt, ut propitius iudex defensionem ipsius negotii, cuius propria quaestio est, audiat: ut, si defendendus sit M. Caelius, nonne optime patronus occurrat prius conviciis luxuriae, petulantiae, impudicitiae quam veneficii, in quibus solis omnis Ciceronis versatur oratio; tum deinde narret de bonis Pallae totamque de vi explicet causam, quae est ipsius actione defensa?
There will be certain cases (and that not rarely) easy indeed to refute in the charge itself about which the trial is, but burdened with many and grave shameful acts of past life; which must be removed beforehand, so that a favorable judge may hear the defense of the business itself, of which the proper question is: as, if Marcus Caelius is to be defended, would not the advocate best meet first the charges of luxury, petulance, and unchastity rather than of poisoning, in which alone the whole speech of Cicero is occupied; and then next narrate concerning the property of Palla and explain the whole case about violence, which was defended by his actual pleading?
§4.2.28sed nos ducit scholarum consuetudo, in quibus certa quaedam ponuntur, quae themata dicimus, praeter quae nihil est diluendum, ideoque prooemio narratio semper subiungitur.
But the custom of the schools leads us, in which certain fixed things are set down, which we call themes, besides which there is nothing to be refuted, and therefore the statement of facts is always subjoined to the introduction.
inde libertas declamatoribus, ut etiam secundo partis suae loco narrare videantur.
Thence arises the liberty for declaimers to seem to make their statement of facts even in the second place of their part.
§4.2.29nam cum pro petitore dicunt et expositione, tanquam priores agant, uti solent et contradictione, tanquam respondeant, idque fit recte.
For when they speak for the plaintiff, they are accustomed to use both the exposition, as if they were pleading first, and the contradiction, as if they were replying, and this is done rightly.
nam cum sit declamatio forensium actionum meditatio, cur non in utrumque protinus locum se exerceat? cuius rationis ignari ex more, cui adsueverunt, nihil in foro putant esse mutandum.
For since declamation is the rehearsal of forensic pleadings, why should it not immediately exercise itself in both places? Ignorant of this reason, people, from the custom to which they have been accustomed, think that nothing must be changed in the forum.
§4.2.30sed in scholasticis quoque nonnunquam evenit, ut pro narratione sit propositio.
But in scholastic exercises also it sometimes happens that a proposition stands in place of a statement of facts.
nam quid exponet, quae zelotypum malae tractationis accusat, aut qui Cynicum apud censores reum de moribus facit? cum totum crimen uno verbo in qualibet actionis parte posito satis indicetur.
For what will she set forth, who accuses a jealous husband of ill-treatment, or he who accuses a Cynic concerning his morals before the censors? Since the whole charge is sufficiently indicated by a single word placed in any part of the pleading.
sed haec hactenus.
But enough of these things.
§4.2.31nunc, quae sit narrandi ratio, subiungam.
Now, I shall subjoin what the method of narrating is.
narratio est rei factae aut ut factae utilis ad persuadendum expositio, vel (ut Apollodorus finit) oratio docens auditorem, quid in controversia sit.
A statement of facts is an exposition, useful for persuading, of a thing done or as if done, or (as Apollodorus defines it) a speech instructing the hearer what is in dispute.
eam plerique scriptores, maxime qui sunt ab Isocrate, volunt esse lucidam, brevem, verisimilem.
Most writers, especially those who are from Isocrates, want it to be clear, brief, and plausible.
neque enim refert, an pro lucida perspicuam, pro verisimili probabilem credibilemve dicamus.
For it does not matter whether we say 'perspicuous' for 'clear', or 'probable' or 'credible' for 'plausible'.
§4.2.32eadem nobis placet divisio; quanquam et Aristoteles ab Isocrate parte in una dissenserit praeceptum brevitatis irridens, tanquam necesse sit longam esse aut brevem expositionem nec liceat ire per medium, Theodorei quoque solam relinquant ultimam partem, quia nec breviter utique nec dilucide semper sit utile exponere.
The same division pleases us; although Aristotle also differed from Isocrates in one part, mocking the rule of brevity, as if it were necessary for an exposition to be long or short and it were not allowed to go through the middle; the followers of Theodorus also leave only the last part, because it is not by all means always useful to expound briefly or clearly.