Institutio Oratoria

Quintilian

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

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

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or justify the facts, raise the question of competence, [*]( See III. vi. 23. No exact rendering of translatio is possible. Literally it means transference of the charge : it would seem to cover cases where the charge was brought in the wrong court or by the wrong person. It is used generally to indicate a plea made by defendant in bar of plaintiff's action. ) make excuses, plead for mercy, soften, extenuate, or divert the charge, express contempt or derision. The task of the accuser is consequently straightforward and, if I may use the phrase, vociferous; but the defence requires a thousand arts and stratagems.

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

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only before judges who are not limited to some precise form of verdict. [*](e. g. in the emperor's court as opposed to the quaestiones perpetuae or civil actions. ) Even those speeches delivered before Gaius Caesar [*]( As in the pro Ligario and pro Deiotaro pleaded in Caesar's house. It is not known what cases were tried before the (2nd) triumvirate. ) and the triumvirs on behalf of members of the opposite party, although they do employ such pleas for mercy, also make use of the ordinary methods of defence. For I think you will agree with me that the following passage contains arguments of a strongly defensive character [*]( Cic. pro Lig. iv. 10 ) :

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

But if,

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.

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When it is impossible to plead justification or to raise the question of competence, [*](i.e. if we cannot say The act was right or This court is not competent to try it or The prosecutor has no locus standi. See n. on § 2. ) we must deny the facts, and that not merely when a definition of the facts will serve our case, but even when nothing except an absolute denial is left for us.