Institutio Oratoria

A more forcible kind of proof is that drawn from character and supported by some plausible reason, as for instance,

It is not likely that a wounded man or one who has lost his son would accuse anyone who is not guilty, since if he accused an innocent man, he would free the real offender from all risk of punishment.

The further question has been raised as to whether the strongest arguments should be placed first, to take possession of the judge's mind, or last, to leave an impression on it; or whether they should be divided between the commencement and close of the proof, adopting the Homeric disposition of placing the weakest in the centre of the column, [*](I. iv. 299. ) so that they may derive strength from their neighbours. But in the disposition of our arguments we must be guided by the interests of the individual case: there is only one exception to this general rule in my opinion, namely, that we should avoid descending from the strongest proofs to the weakest.

I have been content to give a brief outline of my views concerning these points, and have put them forward in such a way as to show as clearly as was in

This seems to me unnecessary, since it is as a rule obvious what should be said against the injurious conduct or avarice of our opponents, or against a hostile witness or powerful friends; to say everything on all these subjects is an endless task, as endless in fact as if I were to attempt to lay down rules for dealing with every dispute that can ever occur and all the questions, arguments and opinions thereby involved.

I do not venture to suppose that I have pointed out all the circumstances that may give rise to arguments, but I think that I have done so in the majority of cases. This was a task which required all the more careful handling because the declamations, which we used to employ as foils wherewith to practise for the duels of the forum, have long since departed from the true form of pleading and, owing to the fact that they are composed solely with the design of giving pleasure, have become flaccid and nerveless: indeed, declaimers are guilty of exactly the same offence as slave-dealers who castrate boys in order to increase tile attractions of their beauty.

For just as the slave-dealer regards strength and muscle, and above all, the beard and other natural characteristics of manhood as blemishes, and softens down all that would be sturdy if allowed to grow, on the ground that it is harsh and hard, even so we conceal the manly form of eloquence and power of speaking closely and forcibly by giving it a delicate complexion of style and, so long as what we say is smooth and

But I take Nature for my guide and regard any man whatsoever as fairer to view than a eunuch, nor can I believe that Providence is ever so indifferent to what itself has created as to allow weakness to be an excellence, nor again can I think that the knife can render beautiful that which, if produced in the natural course of birth, would be regarded as a monster. A false resemblance to the female sex may in itself delight lust, if it will, but depravity of morals will never acquire such ascendancy as to succeed in giving real value to that to which it has succeeded in giving a high price.

Consequently, although this debauched eloquence (for I intend to speak with the utmost frankness) may please modern audiences by its effeminate and voluptuous charms, I absolutely refuse to regard it as eloquence at all: for it retains not the slightest trace of purity and virility in itself, not to say of these qualities in the speaker.

When the masters of sculpture and painting desired to carve or paint forms of ideal beauty, they never fell into the error of taking some Bagoas or Megabyzus [*](Eunuchs.) as models, but rightly selected the well-known Doryphorus, [*]( The famous statue of Polycletus, regarded as the standard of manly beauty and proportion. Many copies have survived. Doryphorus= the Spearbearer. ) equally adapted either for the fields of war or for the wrestling school, and other warlike and athletic youths as types of physical beauty. Shall we then, who are endeavouring to mould the ideal orator, equip eloquence not with weapons but with timbrels?

Consequently, let the youth whom we are training devote himself, as far as in him lies, to the imitation of truth and, in view of the fact that the battles of the forum that await him are not few, let him strive for victory in the schools and learn

At the present time the misfortune is that teachers more often than not pass over what is necessary in silence, and utility is not accounted one of the good qualities of eloquence. But I have dealt with these points in another work, [*]( Perhaps the lost de causis corruptae eloquentiae. ) and shall often have to recur to them in this. I will now return to my prescribed course.

Refitation may be understood in two senses. For the duty of the defence consists wholly in refutation, while whatever is said by our opponents must be rebutted, whether we are speaking for the defence or the prosecution. It is in this sense that refutation is assigned the fourth place [*]( (i) exoidium, (ii) statement of facts, (iii) confirmation, (iv) refutation, (v) peroration. ) in pleadings, but the methods required in either case are identical. For the principles of argument in refutation can only be drawn from the same sources as those used in proof, while topics and thoughts, words and figures will all be on the same lines.

As a rule no strong appeal to the emotions is made in refutation. It is not, however, without reason that, as Cicero so often testifies, [*]( It is not clear what passages Quintilian has in his mind. ) the task of defence has always been considered harder than that of prosecution. In the first place accusation is a simpler task: for the charge is put forward in one definite form, but its refutation may take a number of different forms, since as a rule it is sufficient for the accuser that his charge should be true, whereas counsel for the defence may deny

Moreover the prosecutor generally produces a speech which he has prepared at home, while the counsel for the defence has frequently to deal with quite unexpected points. The prosecutor brings forward his witnesses, while counsel for the defence has to refute the charge by arguments drawn from the case itself. The prosecutor draws his material from the odium excited by the charges, even though it have no justification, denouncing parricide, sacrilege, or treason, whereas counsel for the defence can only deny them. Consequently quite moderate speakers have proved adequate in prosecution, while no one can be a good counsel for the defence unless he possesses real eloquence. In a word, it is just so much easier to accuse than to defend as it is easier to inflict than to heal a wound.

The nature of the arguments put forward by our opponent and the manner in which he produces them will, however, make an enormous difference to our task. We must therefore first consider what it is to which we have to reply, whether it is part and parcel of the actual case or has been introduced from circumstances lying outside the case. For in the former case we must deny or justify the facts or raise the question of competence: for these are practically the sole methods of defence available in the courts. Pleas for mercy, [*](See vii. iv. 17.)

which are not in any sense a method of actual defence, can rarely be used, and

What was our object, Tubero, save that we might have the power that Caesar has now

when pleading before the emperor or any other person who has power either to acquit or condemn, it is incumbent on us to urge that, while our client has committed an offence that deserves the death penalty, it is still the duty of a merciful judge to spare him despite his sins, it must be noted in the first place that we have to deal, not with our adversary, but with the judge, and secondly that we shall have to employ the deliberative rather than the forensic style. For we shall urge the judge to fix his desire rather on the glory that is won by clemency than on the pleasure that is given by vengeance.

On the other hand, when we are pleading before judges who have to give their verdict in accordance with the prescriptions of law, it would be absurd to give them advice as to how they should deal with a criminal who admits his guilt. Consequently, when it is impossible either to deny the facts or to raise the question of competence, we must attempt to justify the facts as best we can, or else throw up the case. I have pointed out that there are two ways in which a fact can be denied: it can be denied absolutely, or it may be denied that a fact is of the nature alleged.

If witnesses are produced, there is much that may be said to discredit them; if a document is put forward, we may hold forth on the similarity of the handwritings. In any case there can be no worse course than confession of guilt. When denial and justification are both impossible, we must as a last resort base our defence on the legal point of competence.

Still, there are some cases in which none of these three courses is possible.

She is accused of adultery on the ground that after a widowhood of twelve months she was delivered of a child.