Institutio Oratoria

Quintilian

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

There is yet another type of case which, though not one of mutual accusation, is treated in the same way: I mean a case in which we enquire, without accusing anyone, which of two acts has taken place. For both parties make and defend their own statement of the case. Thus in the suit concerning the estate of Urbinia [*](cp. i. 11. and VII. ii. 4. ) the claimant says that Clusinius Figulus, the son of Urbinia, on the defeat of the army in which he was serving, fled and after various misfortunes, being even even kept in captivity by the king, at length returned to Italy and his own home in the Marrucine district, where he was recognised. To this Pollio replies that he had been a slave to two masters at Pisaurum, that he had practised medicine, and finally, after receiving his freedom, inserted himself into a gang of slaves who were for sale [*]( For another meaning of venalis, newly-bought, see VIII. ii. 8. ) and was at his own request purchased by himself.

Does not the whole suit consist of comparison between the two cases and of two different and opposite sets of conjecture? But the method to be followed is identical whether the case be one of accusation and defence or of claim and denial of the claim. Conjecture is, in the first place, based on what is past, under which I include persons, causes and intent. For in dealing with a case we first ask what the accused intended to do, next what he was in a position to do, and lastly what he actually did. Consequently the first point on which we must fix our attention is the character of the accused.

It is the business of the accuser to make any charge that

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he may bring against the accused not merely discreditable, but as consistent as possible with the crime for which he is arraigned. For example, if he calls a man accused of murder a debauchee or an adulterer, the discredit attaching to such charges will no doubt tell against the accused, but will, on the other hand, do less to prove the case than if he shows him to be bold, insolent, cruel or reckless.

On the other hand, counsel for the defence must, as far as possible, aim at denying, excusing or extenuating such charges, or, if that be impossible, show that they are not relevant to the case. For there are many charges which not only have no mutual resemblance, but may even at times contradict each other, as for instance if a man accused of theft is called prodigal or careless. For it is not likely that one and the same man should at once despise money and covet it.

If such means of defence are not available, we must take refuge with the plea that the charges made are not relevant to the case, that because a man has committed certain sins, it does not follow that he has committed all, and that the accusers ventured to make such false charges merely because they hoped by injuring and insulting the accused to be able to overwhelm him with the unpopularity thus created.

There are also other topics which arise from and against the statement of the case by the prosecution. The defence may begin by drawing arguments from the person involved, and will at times urge on general grounds that it is incredible that a father has been killed by his son or that a commander has betrayed his country to the enemy. The answer to such arguments is easy, for we may

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urge that bad men are capable of every crime, as is shown by every-day occurrences, or that the atrocious nature of a crime is but a poor argument against its having been committed.

At times we may base our arguments on the special circumstances of the person involved. This may be done in various ways: rank, for example, may be pleaded in defence of the accused, or at times, on the other hand, may be employed to prove his guilt on the ground that he trusted to his rank to secure impunity. Similarly poverty, humble rank, wealth may be used as arguments for or against the accused according to the talent of the advocate.

Upright character, however, and the blamelessness of his past life are always of the utmost assistance to the accused. If no charge is made against his character, counsel for the defence will lay great stress on this fact, while the accuser will attempt to restrict the judge to the sole consideration of the actual issue which the court has to decide, and will say that there must always be a first step in crime and that a first offence is not to be regarded as the occasion for celebrating a feast in honour of the defendant's character.

So much for the methods of reply which will be employed by the prosecution. But he will also in his opening speech endeavour to dispose the judges to believe that it is not so much that he is unable, as that he is unwilling to bring any charge against the character of the accused. Consequently it is better to abstain from casting any slur on the past life of the accused than to attack him with slight or frivolous charges which are manifestly false, since such a proceeding discredits the rest of our argument. Further, the advocate who brings

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no charges against the accused may be believed to have omitted all reference to past offences on the ground that such reference was not necessary, while the advocate who heaps up baseless charges thereby admits that his only argument is to be found in the past life of the accused, and that he has deliberately preferred to risk defeat on this point rather than say nothing at all about it.

As regards the other arguments derived from character, I have already discussed them in connexion with

places

of argument. [*]( v. x. 20, where argumentorum loci are defined as "the dwellings of arguments, where they hide and where we must look for them. ) The next type of proof is derived from causes or motives, such as anger, hatred, fear, greed or hope, since all motives can be classified as species of one or other of these. If any of these motives can be plausibly alleged against the accused, it is the duty of the accuser to make it appear that such motives may lead a man to commit any crime, and to exaggerate the particular motives which he selects for the purpose of his argument.

If no such motive can be alleged, he must take refuge in suggesting that there must have been some hidden motive, or in asserting that, if he committed the act, all enquiry into motive is irrelevant or that a motiveless crime is even more abominable than one which has a motive. Counsel for the defence, on the other hand, will, wherever it be possible, emphasise the point that it is incredible that any act should be committed without a motive. Cicero develops this point with great energy in a number of his speeches, but more especially in his defence of Varenus, who had everything else against him and was as a matter of fact condemned.

But if the prosecution do allege some motive, he will either say that the motive alleged is

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false or inadequate or unknown to the accused. For it is possible that a man may be quite ignorant of motives imputed to him. He may not, for example, have known whether the man whom he is accused of having killed had appointed him his heir or intended to prosecute him. All else failing, we may urge that motives are not necessarily of importance. For what man is there who is not liable to the emotions of fear, hatred or hope, and yet numbers of persons act on these motives without committing crime?

Nor should we neglect the point that all motives do not apply to all persons. For example, although poverty may in certain cases be a motive for theft, it will not have the same force with men such as Curius or Fabricius.