Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
The means for securing the acquittal of an accused person are strictly limited. His innocence may be established, some superior authority may intervene, force or bribery may be employed, his guilt may be difficult to prove, or there may be collusion between the advocates. You admit that he was guilty; no superior authority intervened, no violence was used and you make no complaint that the jury was bribed, while there was no difficulty about proving his guilt. What conclusion is left to us save that there was collusion?
If I could not dispose of all the points against me, I disposed of the majority.
It is acknowledged that a man was killed: but he was not killed in a solitary place, such as might lead me to suspect that he was the victim of robbers; he was not killed for the sake of plunder, for nothing was taken from him; he was not killed in the hope of inheriting his property, for he was poor: the motive must therefore have been hatred, since you are his enemy.
The task not merely of division, but of invention as well, is rendered materially easier by this method of examining all possible arguments and arriving at the best by a process of elimination. Milo is accused of killing Clodius. Either he did or did not do the deed. The best policy would be to deny the fact, but that is impossible. It is admitted then that he killed him. The act must then have been either right or wrong. We urge that it was right. If so, the act must have either been deliberate or under
The intention is doubtful, but as it is generally supposed to have existed, some attempt must he made to defend it and to show that it was for the good of the state. On the other hand, if we plead necessity, we shall argue that the fight was accidental and unpremeditated. One of the two parties then must have lain in wait for the other. Which was it? Clodius without doubt. Do you see how inevitably we are led to the right method of defence by the logical necessity of the facts?
We may carry the process further: either he wished to kill Clodius, who lay in wait for him, or he did not. The safer course is to argue that he did not wish to kill him. It was then the slaves of Milo who did the deed without Milo's orders or knowledge. But this line of defence shows a lack of courage and lessens the weight of our argument that Clodius was rightly killed.
We shall therefore add the words,
As every man would have wished his slaves to do under similar circumstances.[*](pro Mil. x. 29. V. iv. 8. ) This method is all the more useful from the fact that often we can find nothing to say that really pleases us and yet have got to say something. Let us therefore consider every possible point; for thus we shall discover what is the best line for us to pursue, or at any rate what is least bad. Sometimes, as I have already said in the appropriate context, [*](pro Mil. x. 29. V. iv. 8. ) we may make good use of the statement of our opponent, since occasionally it is equally to the purpose of both parties. I am aware that some authors have written thousands of lines to show how we may discover which party ought to speak first. But in the actual
In the schools, on the other hand, such an enquiry is mere waste of time, since the prosecution and the defence are indifferently permitted to state a case and refute it in the same declamation. But in the majority of controversial themes it is not even possible to discover who should speak first, as for instance in the following:
A certain man had three sons, an orator, a philosopher and a physician. In his will he divided his property into four portions, three of which he distributed equally among his sons, while the fourth was to go to the son who rendered the greatest service to his country.
The sons dispute the point. It is uncertain who should speak first, but our course is clear enough. For we shall begin with the son whose role we assume. So much for the general rules by which we should be guided in making our division.
But how shall we discover those questions which present abnormal difficulty? Just as we discover reflexions, words, figures or the appropriate nuances of style, [*]( Or perhaps glosses, i. e. the giving of a special aspect to the case by skilful representation of facts. ) namely by native wit, by study and by practice. None the less it will be rare for anyone who is not a fool to fail to discover them, so long as he is content, as I have said, [*](§ 26.) to accept nature for a guide.
Many, however, in their passionate desire to win a reputation for eloquence are content to produce showy passages which contribute nothing to the proof of their case, while others think that their enquiry need not proceed further than that which meets the eye. To make my meaning clearer, I will cite a
The man who refuses to appear in defence of his father when accused of treason shall be disinherited: the man who is condemned for treason shall be banished together with his advocate. A father accused of treason was defended by one son who was a fluent speaker, while another son, who was uneducated, refused to appear for him. The father was condemned and banished with his advocate. The uneducated son performed some heroic act and demanded as a reward the restoration of his father and brother. The father returned and died intestate. The uneducated son claims a portion of his estate, the orator claims the whole for himself.