Institutio Oratoria

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

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

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.

Consequently we shall consider all the circumstances rendering the act difficult or easy of accomplishment; these require no illustration, being numerous and familiar. This second topic is of such importance that, if it is impossible to give it satisfactory treatment, the case falls to the ground; if, however, we succeed in dealing with it adequately, we must proceed to consider whether the accused actually committed the act. But this topic involves conjecture as to intention, for it is from these facts that we infer whether he hoped for success or not. Therefore we must also consider the question of the means at his disposal, such, for example, as the retinues of Clodius and Milo.

The question whether he actually did the deed belongs, in the first place, to the second division of time, namely the present, and secondly to time that is almost, though not actually contemporary: under this latter head come circumstances such as noise, cries or groans, [*](cp. x. 45. ) while concealment, fear and the like belong to subsequent time. To these must be added indications, which we have already discussed elsewhere, [*](v. ch. ix.) and words and acts antecedent or subsequent to the crime.

These words and acts are either our own or those of others. With regard to words, our own do us greater harm and bring us less profit

Again, with regard to words, we must distinguish between those whose meaning is clear and those whose significance is doubtful. The latter will necessarily give less assistance to either side, be they our own words or another's. On the other hand, any ambiguity in our own words will always tell against us, as, for example, in the following controversial theme.

A son, on being asked where his father was, replied: 'Wherever he is, he is alive.' But the father was found dead at the bottom of a well.

When the ambiguity lies in words used by others, they can never do us any harm, unless he who uttered them be unknown or dead; I will give two illustrations of my meaning:

A cry was heard at night, 'Be on your guard against the establishment of a tyranny';

on being asked who had poisoned him, he replied: 'It is not fit that you should know.'

Finally, whereas our own words and deeds can only be justified by their intention, the deeds and words of others can be disposed of in a number of different ways. My remarks on this subject have, I think, been confined to one very important class of conjectural cases, but something of what I have said will apply to all cases. For example, in cases concerned with

But even in the case of an accusation of theft, just as in an accusation of murder, we enquire both into the act and the author, while in cases concerned with loans and deposits there are also two questions (though these are always distinct from one another), namely, whether the money was delivered and whether it has been repaid. Cases of adultery are marked by the following peculiarity, that, as a rule, the safety of two persons is involved, and it is necessary to say something of the past life of both, although some have raised the question whether both parties should be defended together. The line to be taken must depend on the circumstances of the individual case: if the defence of one party lends support to the defence of the other, I should defend them conjointly; if the reverse is the case, I should treat the two cases separately.

However, that no one may think me somewhat hasty in saying that two persons are as a rule involved in charges of adultery, I would point out that I would not assert that this is always the case. The woman alone may be accused of adultery with a person unknown: we may say,

Gifts were found in the house, and money from some unknown source, and love-letters whose destination cannot be ascertained.

The case is similar in accusations of forgery: for either there are several accused or only

But the custom prevalent in the schools of regarding everything not definitely stated in the theme as being in the speaker's favour, [*](cp. IV. ii. 28. As the examples which follow show, the declaimer assumes that his imaginary opponent has no good evidence to support his case: i.e. no witness, no informer, no weapons, no bodyguard. ) is likely to prove harmful to students destined for practice in the courts. You bring a charge of adultery.

Who is your witness? who is your informer?

What was my reward? who was my accomplice?

Where did I buy the poison, and from whom? When did I buy it, what was the price, and whom did I employ to administer it?

Where are my weapons, and what bodyguards have I ever collected?

I do not deny that these questions should be asked, or that we should use them as far as is permitted by the rôle which we have assumed; for even in the courts I feel that it will be desirable to put such questions, if my opponent is not in a position to reply effectively; but we have often felt the lack of such freedom in the courts, whereas in the schools there is scarcely a case where one or more examples of this method are not to be found.

Similar to this is the practice which some