Institutio Oratoria

Quintilian

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

If we turn to Cicero, we shall find that one speech alone, the pro Cluenltio, will suffice to provide a number of examples. The difficulty is to know what special exhibition of sagacity to admire most in this speech. His opening statement of the case, by which he discredited the mother whose authority pressed so hardly on her son? [*](vi. 17.) The fact that he preferred to throw the charge of having bribed the jury back upon his opponents rather than deny it on account of what he calls the notorious infamy of the verdict? [*](i 4.) Or his recourse, last of all, to the support of the law in spite of the odious nature of the affair, a method by which lie would have set the judges against him but for the fact that he had already softened their feelings towards him? [*]( lii. 143 sqq. ) Or the skill which lie shows in stating that he has adopted this course in spite of the protests of his client? [*](lii. 114, 148, 149.)

What again am I to select as an outstanding instance of his sagacity in the pro Milone? The fact that he refrains from proceeding to his statement of facts until he has cleared the ground by disposing of the previous verdicts against the accused? [*](cp. Quint. III. vi. 93. ) The manner in which he turns the

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odium of the attempted ambush against Clodius, although as a matter of fact the encounter was a pure chance? The way in which he at one and the same time praised the actual deed and showed that it was forced upon his client? Or the skill with which he avoided making Milo plead for consideration and undertook the role of suppliant himself? [*](See above i. 25 and 27.) It would be an endless task to quote all the instances of his sagacity, how he discredited Cotta, [*](cp. above v. xiii. 30. The reference is to the pro Oppio. ) how he put forward his own case in defence of Ligarius [*](See above v. x. 93.) and saved Cornelius [*](See above v. xiii. 18 and 26.) by his bold admission of the facts. It is enough, I think,

to say that there is nothing not merely in oratory, but in all the tasks of life that is more important than sagacity and that without it all formal instruction is given in vain, while prudence unsupported by learning will accomplish more than learning unsupported by prudence. It is sagacity again that teaches us to adapt our speech to circumstances of time and place and to the persons with whom we are concerned. But since this topic covers a wide field and is intimately connected with eloquence itself, I shall reserve my treatment of it till I come to give instructions on the subject of appropriateness in speaking. [*]( In XI. i. cp. I. v. 1. )

I think that enough has been said on the subject of invention. For I have dealt not merely with the methods by which we may instruct the judge, but also with the means of appealing to his emotions. But just as it is not sufficient for those who are erecting a building merely to collect stone and timber and other building materials, but skilled masons are required to arrange and place them, so in speaking, however abundant the matter may be, it will merely form a confused heap unless arrangement be employed to reduce it to order and to give it connexion and firmness of structure.

Nor is it without good reason that arrangement is treated as the second of the five departments of oratory, [*](cp. vi. iv. 1. Invention, arrangement, style, memory, delivery. ) since without it the first is useless. For the fact that all the limbs of a statue have been cast does not make it a statue: they must be put together; and if you were to interchange some one portion of our bodies or of those of other animals with another, although the body would be in possession of all the same members

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as before, you would none the less have produced a monster. Again even a slight dislocation will deprive a limb of its previous use and vigour, and disorder in the ranks will impede the movements of an army.

Nor can I regard as an error the assertion that order is essential to the existence of nature itself, for without order everything would go to wrack and ruin. Similarly if oratory lack this virtue, it cannot fail to be confused, but will be like a ship drifting without a helmsman, will lack cohesion, will fall into countless repetitions and omissions, and, like a traveller who has lost his way in unfamiliar country, will be guided solely by chance without fixed purpose or the least idea either of starting-point or goal.

The whole of this book, therefore, will be devoted to arrangement, an art the acquisition of which would never have been such a rarity, had it been possible to lay down general rules which would suit all subjects. Put since cases in the courts have always presented an infinite variety, and will continue to do so, and since through all the centuries there has never been found one single case which was exactly like any other, the pleader must rely upon his sagacity, keep his eyes open, exercise his powers of invention and judgment and look to himself for advice. On the other hand, I do not deny that there are some points which are capable of demonstration and which accordingly I shall be careful not to pass by.

Division, as I have already stated, [*](v. x. 63.) means the division of a group of things into its component parts, partition is the separation of an individual whole into its elements, order the correct disposition

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of things in such a way that what follows coheres with what precedes, while arrangement is the distribution of things and parts to the places which it is expedient that they should occupy.

But we must remember that arrangement is generally dependent on expediency, and that the same question will not always be discussed first by both parties. An example of what I mean, to quote no others, is provided by Demosthenes and Aeschines, who adopt a different order in the trial of Ctesiphon, since the accuser begins by dealing with the legal question involved, in which he thought he had the advantage, whereas the advocate for the defence treats practically every other topic before coming to the question of law, with a view to preparing the judges for a consideration of the legal aspect of the case.

For it will often be expedient for the parties to place different points first; otherwise the pleading would always be determined by the good pleasure of the prosecution. Finally, in a case of mutual accusation, [*](cp. III. x. 4. ) where both parties have to defend themselves before accusing their antagonist, the order of everything must necessarily be different. I shall therefore set forth the method adopted by myself, about which I have never made any mystery: it is the result in part of instruction received from others, in part of my own reasoning.

When engaged in forensic disputes I made it a point to make myself familiar with every circumstance connected with the case. [*](cp iv. iv. 8; IV. ii. 28. ) (In the schools, of course, the facts of the case are definite and limited in number and are moreover set out before we begin to declaim: the Greeks call them themes, which Cicero [*](Top., 21. ) translates by propositions. ) When I

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had formed a general idea of these circumstances, I proceeded to consider them quite as much from my opponent's point of view as from my own.

The first point which I set myself to determine (it is easy enough to state, but is still all-important) was what each party desired to establish and then what means he was likely to adopt to that end. My method was as follows. I considered what the prosecutor would say first: his point must either be admitted or controversial: if admitted, no question could arise in this connexion.

I therefore passed to the answer of the defence and considered it from the same standpoint: even there the point was sometimes one that was admitted. It was not until the parties ceased to agree that any question arose. 'fake for example the following case.

You killed a man.
Yes, I killed him.
Agreed, I pass to the defence,

which has to produce the motive for the homicide.

It is lawful,
lie urges,
to kill an adulterer with his paramour.
Another admitted point, for there is no doubt about the law. We must look for a third point where the two parties are at variance.
They were not adulterers,
say the prosecution;
They were,
say the defence. Here then is the question at issue: there is a doubt as to the facts, and it is therefore a question of conjecure. [*](i.e. a question as to facts. cv. VII. ii. ) Sometimes even the third point may be admitted;

it is granted that they were adulterers.

But,
says the accuser,
you had no right to kill them, for you were an exile
or
had forfeited your civil rights.
The question is now one of law. On the other hand, if when the prosecution says,
You killed them,
the defence at once replies,
I did not,
the issue is raised without more delay.
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If it requires some search to discover where the dispute really begins, we must consider what constitutes the first question. The charge may be simple,

as for example

Rabirius killed Saturninus,
[*](cp. v. xi. 6. ) or complex like the following:
The offence committed by Lucius Varenus falls under the law of assassination for he procured the murder of Gaius Varenus, the wounding of Gnaeus Varenus and also the murder of Salarius.
[*](cp. v. xiii. 38. ) In the latter case there will be a number of propositions, a statement which also applies to civil suits as well. But in a complex case there may be a number of questions and bases : [*](cp. III. vi. 1 sq. ) for instance the accused may deny one fact, justify another and plead technical grounds to show [*](cp. III. vi. 23 and 52. ) that a third fact is not actionable. In such cases the pleader will have to consider what requires refutation and where that refutation should be placed.

As regards the prosecutor, I do not altogether disagree with Celsus, who, though no doubt in so doing he is following the practice of Cicero, insists with some vehemence on the view that the first place should be given to some strong argument, but that the strongest should be reserved to the end, while the weaker arguments should be placed in the middle, since the judge has to be moved at the beginning and forcibly impelled to a decision at the end. But with the defence it is different:

the strongest arguments as a rule require to be disposed of first, for fear that the judge through having his thoughts fixed on those arguments should regard the defence of other points with disfavour. Sometimes, however, this order is subject to alteration; for example if the minor arguments are obviously false and the refutation of the most serious argument a matter of some

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difficulty, we should attack it last of all, after discrediting the prosecution by demonstrating the falsity of the former, thereby disposing the judges to believe that all their arguments are equally unreliable. We shall, however, require to preface our remarks by explaining why we postpone dealing with the most serious charge, and by promising that we will deal with it at a later stage: otherwise the fact that we do not dispose of it at once may give the impression that we are afraid of it.

Charges brought against the past life of the accused should generally be dealt with first in order that the judge may be well disposed to listen to our defence on that point on which lie has to give his verdict. But Cicero in the pro Vareno postpones his treatment of such charges to the conclusion, being guided not by the general rule, but by the special circumstances of the case.

When the accusation is simple, we must consider whether to give a single answer to the charge or several. In the former case, we must decide whether the question is one of fact or of law: if it is one of fact, we must deny the fact or justify it: if, on the other hand, it is a question of law, we must decide on what special point the dispute arises and whether the question turns on the letter or the intention of the law.