Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
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 [*](lii.) 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
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 tile 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.
There have been certain writers of no small authority [*](cp. Ar. Rhet. i. 4 Also Quint. IV. v. 6. ) who have held that the sole duty of the orator was to instruct: in their view appeals to the emotions were to be excluded for two reasons, first on the ground that all disturbance of the mind was a fault, and secondly that it was wrong to distract the judge from the truth by exciting his pity, bringing influence to bear, and the like. Further, to seek to charm the audience, when the aim of the orator was merely to win success, was in their opinion not only superfluous for a pleader, but hardly worthy of a self-respecting man.
The majority however, while admitting that such arts undoubtedly formed part of oratory, held that its special and peculiar task is to make good the case which it maintains and refute that of its opponent.
Whichever of these views is correct (for at this point I do not propose to express my own opinion), they will regard this book as serving a very necessary purpose, since it will deal entirely with the points on which they lay such stress, although all that I have already said on the subject of judicial causes is subservient to the same end.
For the purpose of the exordium and the slatement of facts is merely to prepare the judge for these points, while it would be a work of supererogation to know the bases [*](See III. vi.) of cases or to consider the other
of the five parts [*](I. ix. 1; IV. iii. 15.) into which we divided judicial cases, any single one other than the proof may on occasion be dispensed with. But there can be no suit in which the proof is not absolutely necessary. With regard to the rules to be observed in this connexion, we shall, I think, be wisest to follow our previous method of classification and show first what is common to all cases and then proceed to point out those which are peculiar to the several kinds of cases.
1. To begin with it may be noted that the division laid down by Aristotle [*](Rhet. i. ii. 2. ) has met with almost universal approval. It is to the effect that there are some proofs adopted by the orator which lie outside the art of speaking, and others which he himself deduces or, if I may use the term, begets out of his case. The former therefore have been styled ἄτεχνοι or inartificial proofs, the latter ἔντεχνοι or artificial.
To the first class belong decisions of previous courts, rumours, evidence extracted by torture, documents, oaths, and witnesses, for it is with these that the majority of forensic arguments are concerned. But though in themselves they involve no art, all the powers of eloquence are as a rule required to disparage or refute them. Consequently in my opinion those who would eliminate the whole of this class of proof from their rules of oratory, deserve the strongest condemnation.
It is not, however, my intention to embrace all that can be said for or against these views. I do not for instance propose to lay down rules for commonplaces, a task requiring infinite detail, but merely to sketch out the general lines and method