Institutio Oratoria

Quintilian

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

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.

The question has been raised as to whether we should deal first with persons or motives, and different orators have given different answers: Cicero as a rule prefers to treat motives first. For my own part, if the circumstances of the case do not point strongly in either direction, I consider that the most natural course is to begin by dealing with persons. For the enquiry whether any crime can credibly be imputed to such a man as the accused is of a more general character than the question whether some one particular crime can be imputed, and in addition involves a greater correctness in division.

Still, in many cases expediency may make it desirable to reverse the order. Further, we have to seek not merely motives affecting the will, but also causes leading to error, such as drunkenness or ignorance. For just as such considerations lessen the guilt of a crime when regarded from the point of view of its quality, so they tell heavily against the criminal as

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far as the question of fact is concerned.

I should imagine that there could never be a case, or at any rate an actual case in the courts, in which neither side said anything about the character of the persons involved; but this is not true of causes and motives, for it is often wholly unnecessary to trouble ourselves about them, as, for example, in cases of theft or adultery, crimes which carry their motives on the face of them.

Next we must consider the intention, a term which involves a number of questions, such as whether it is probable that the accused hoped that he would be able to carry such a crime into effect, or that it would escape detection when committed, or that, even if detected, it would be pardoned or punished but lightly or after considerable lapse of time, or that the inconvenience involved by the penalty would be outweighed by the pleasure resulting from the crime: or again, whether it was worth while incurring the penalty;

and further, whether he could have done the deed at some other time and in some other way, or with greater ease or security, as Cicero says in the pro Milone, [*]( c. xiv. sqq. ) where he mentions the numerous occasions when his client could have killed Clodius with impunity. There is also the question why the accused should have chosen that particular place or time or means for the commission of the crime, a topic to which Cicero gives a thorough treatment in the same passage;

or whether, without having the least reason for the deed, he was carried away by the impulse of the moment and acted without deliberate purpose (for it is a common saying that crimes are irrational), or finally, whether he was led astray by the fact that crime had become a habit with him.

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Having dealt with the question whether he intended to commit the crime, we proceed to the question whether he was in a position to commit it. Under this head we discuss the place and occasion of the offence. For instance, in a case of theft we ask whether it was committed in a secluded or frequented spot, in the daytime, when witnesses are more numerous, or by night, when success is more difficult.