Institutio Oratoria

Quintilian

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

With regard to this class of case Celsus points out that they cannot actually occur in the courts, a fact which I imagine is familiar to all: for the jury is empanelled to try one accused person only, and even though the defence and the prosecution may accuse each other of tile crime, the first case must be tried before the second.

Apollodorus again stated that mutual accusation involved two separate disputes, and this is of course in conformity with the practice of the courts, which insists on two separate trials. On the other hand, mutual accusation is possible in cases tried before the senate or the emperor, and even in the courts the fact of mutual accusation will involve

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no difference in the pleadings, since the same methods will be required whether the verdict is given on both charges simultaneously or only on one.

In such cases the defence must always come first for three reasons. In the first place, we naturally prefer to secure our own safety than to injure our opponent, while secondly, our accusation will carry greater weight if we have first proved our own innocence, and thirdly, we shall thus secure a double line of defence. For the man who says,

I did not kill him,

is then free to go on to say,

You killed him,

whereas it is superfluous for the man who says,

You killed him,

to go on to say,

I did not kill him.

Further, such cases consist of comparison, which may be effected in different ways. For we may either compare our case in its entirety with that of our adversary, or we may compare individual arguments. The choice between these two methods can only be determined by the requirements of the case. For example, in the pro Vareno, Cicero, in dealing with the first charge, compares the individual arguments: for it would have been rash in connexion with the second charge to compare the position of a stranger with that of a mother. [*]( The pro Vareno being lost, it is impossible to say to what this refers, and for the same reason Halm's conjecture must be regarded as quite uncertain. ) It is therefore best, if possible, to refute argument by individual argument: if, however, our individual arguments are weak, we shall try to secure success by comparison of case with case as a whole.

But whether the case is one of mutual accusation, or the accused throws the guilt upon his opponent without making any formal accusation (as Roscius [*]( Roscius Amerinus, accused of parricide and defended by Cicero. ) did without indicting

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his accusers), or the responsibility for the deed be placed on the victims themselves, whom we allege to have perished by their own hand, the arguments for both sides of the case will be compared in exactly the same way as in cases of mutual accusation.

The class of case last mentioned by me is, however, not merely of frequent occurrence in the schools, but sometimes actually occurs in the courts. For example, the sole question in the case of Naevius of Arpinum was whether he threw his wife out of the window or she threw herself. My speech in this case is the only one of all my pleadings that I have so far published, and I admit that I was led to do so merely by a youthful desire for glory. For the other speeches which circulate as mine have little in them that actually fell from my lips, having been corrupted by the carelessness of the shorthand-writers who took them down with a view to making money out of them.