Institutio Oratoria

Quintilian

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

In this case the actual person was before the

v7-9 p.49

eyes of the court, so that there could be no question whether he existed (as there is, for instance, when we ask whether there exists any land beyond the Ocean) [*](cp. viii. 16. ) nor what he was nor of what kind. The question was simply, who he was. But this kind of dispute also depends on past time. The problem is whether this man Clusinius Figulus was born of Urbinia. Such disputes have arisen even in our own day, indeed I myself have pleaded in such. On the other hand,

conjecture as to intention is obviously concerned with all three times. We ask with what purpose Ligarius went to Africa, with what purpose Pyrrhus is asking for a treaty, and how Caesar will take it if Ptolemy kills Pompey. [*](cp. III. viii. 56. ) We may also employ conjecture to enquire into quality in questions dealing with size, species and number, such as whether the sun is greater than the earth, whether the moon is spherical, flat or conical, whether there is one universe or several, or,

to go outside these physical speculations, whether the Trojan or the Peloponnesian war was the greatest, what was the nature of the shield of Achilles, or whether there was more than one Hercules. In forensic cases, however, which consist of accusation and defence, there is one kind of conjecture by which we enquire both about an act and about its author. This sometimes treats the two questions together, as, for example, when both the act and the identity of the author are denied, and sometimes separately, as when the first enquiry, whether the act was committed, is followed by a second, where, the act being admitted, the question is by whom it was committed.

The act itself again sometimes involves a single question, as, for example,

v7-9 p.51

whether a man is dead, and sometimes two, as, for instance, whether he died of poison or of some internal disease. Another form of conjecture is concerned with the act alone, it being admitted that if the act was really committed, there can be no doubt as to its author. A third form is concerned solely with the author, the act being admitted and the dispute turning on the question as to who committed it. This third form is complex.

For the accused either confines himself to denying that he did it or accuses another of having done it. Further, there is more than one way of transferring the charge to another. At times this results in mutual accusation, which the Greeks call ἀντικατηγορία, and some of our own authors concertative accusation. [*](i.e. mutual or reciprocal accusation, see VII. i. 3. ) At times, on the other hand, the charge is transferred to some person who cannot be brought to trial, and may be either known or unknown: again, if the person is known, he may be someone outside the case or the victim himself, who may be alleged to have committed suicide.

In such cases we compare characters, motives and other circumstances in the same way as in eases of mutual accusation. Cicero, for instance, in the pro Vareno diverts the charge from the accused to the slaves of Ancharius and in the pro Scauro throws the suspicion of Bostar's murder upon his mother.