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 act was not committed, and, if it was committed, it was not by me.

But if the defence say,

Prove that the man was killed,

the burden falls solely on the accuser, for the accused can say nothing more against the charge except perhaps in the way of casting certain suspicions, which he should throw out in the vaguest terms, since if you make one definite assertion, you will have to prove it or run the risk of losing your case. For when the question lies between our statement and that of our opponent, one or other will be regarded as true. Thus when the point on which we relied for our defence is overthrown, there is nothing left but the points that tell against us.

For example, when the question turns on symptoms, which may point either to poisoning or internal disease, there is no third course left open and consequently each party sticks to his statement. At times the question turns on the nature of the fact, whether, for instance, death was due to poisoning or internal disease, and arguments are introduced which are drawn from the circumstances alone without any reference to the person concerned.

For example, it makes a difference whether the deceased was cheerful or depressed, had been working or taking his ease, had been awake or sleeping previous to the festive gathering that

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was followed by his death. The age of the deceased is also an important factor, and it is desirable to know whether he died suddenly or after a long period of ill health. If the question turns only on his sudden death, both parties will have still freer scope for discussion.

At times the character of the accused may be adduced to prove the fact, and to make it likely that it was or was not a case of poisoning because the accused is or is not a likely person to have committed such an act. When, on the other hand, the enquiry concerns both the accused and the act, the natural order for the accuser to pursue is to commence by proving that the act has been committed and then to go on to show that it was committed by the accused. If, however, proofs of the authorship of the crime are more in number than the proofs of the commission, this order may be reversed.