Institutio Oratoria

Quintilian

Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.

I do not of course deny that just as there may be some points which you should deny in your statement

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of facts, others which you should add, and yet again others that you should alter, so there may be some which you should pass over in silence. But still only those points should be passed over which we ought and are at liberty to treat in this way. This is sometimes done for the sake of brevity, as in the phrase

He replied as he thought fit.

We must therefore distinguish between case and case. In those where there is no question of guilt but only of law, we may, even though the facts he against us, admit the truth.

He took money from the temple, but it was private property, and therefore he is not guilty of sacrilege. He abducted a maiden, but the father [*]( The victim can claim either that the ravisher should marry her or be put to death. Her father cannot however make either of these demands on her behalf. ) can have no option as to his fate. He assaulted a freeborn boy, and the latter hanged himself, but that is no reason for the author of the assault to be awarded capital punishment as having caused his death; he will instead pay 10,000 sesterces, the fine imposed by law for such a crime.

But even in making these admissions we may to some extent lessen the odium caused by the statement of our opponent. For even our slaves extenuate their own faults.

In some cases, too, we may mitigate a bad impression by words which avoid the appearance of a statement of facts. We may say, for instance,

He did not, as our opponent asserts, enter the temple with the deliberate intention of theft nor seek a favourable occasion for the purpose, but was led astray by the opportunity, the absence of custodians, and the sight of the money (and money has always an undue influence on the mind of man), and so yielded to temptation. What does that matter? He committed the offence and is a thief. It is
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useless to defend an act to the punishment of which we can raise no objection.

Again we may sometimes go near condemning our client ourselves.

Do you wish me to say that you were under the influence of wine? that you made a mistake? that the darkness deceived you? That may be true. But still you committed an assault on a freeborn boy; pay your 10,000 sesterces.

Sometimes we may fortify our case in advance by a preliminary summary, from which we proceed to the full statement of facts.

All the evidence points to the guilt of three sons who had conspired against their father. After drawing lots they entered their father's bedroom while he slept, one following the other in the order predetermined and each armed with a sword. None of them had the heart to kill him, he woke and they confessed all.

If, however, the father, who has divided his estate among them and is defending them when accused of parricide, pleads as follows:

As regards my defence against the law, it suffices to point out, that these young men are charged with parricide in spite of the fact that their father still lives and is actually appearing on behalf of his children. What need is there for me to set forth the facts as they occurred since the law does not apply to them? But if you desire me to confess my own guilt in the matter, I was a hard father to them and watched over my estate, which would have been better managed by them, with miserly tenacity.

And if he then should add,

they were spurred to attempt the crime by others who had more indulgent fathers; but their real feelings towards their father have been proved by the result; they could not bring themselves to
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kill him. It would have been quite unnecessary for them to take an oath to kill him, if they had really had the heart to do the deed, while the only explanation of their drawing lots is that each of them wished to avoid the commission of the crime.

If such were his pleading, all these pleas would, such as they are, find the judges all the more disposed to mercy, since the brief defence offered in the first summary statement would have paved the way for them.

But if the question is whether an act has been committed or what its nature may be, even though everything be against us, how can we avoid a statement of facts without gross neglect of our case? The accuser has made a statement of facts facts, and has done so not merely in such a way as to indicate what was done, but has added such comments as might excite strong prejudice against us and made the facts seem worse than they are by the language which he has used. On the top of this have come the proofs, while the peroration has kindled the indignation of the judges and left them full of anger against us.