Institutio Oratoria

Quintilian

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

Such are the methods by which we may

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defend an act. If it is impossible to defend an act either on its merits or with the assistance of arguments from without, the next best course will be to shift the charge, if possible, to another. It is for this reason that the basis of competence has been held to apply even to those who cannot plead the letter of the law in this connexion. [*](i e. there are no legal grounds for alleging that the court is not competent to try the case, or the accuser to bring the charge, etc. See III. vi. 53, 78. ) In some cases, then, the blame will be thrown on a person: for example, Gracchus, when accused of making the treaty with the Numantines (and it was fear of this accusation that seems to have led him to bring forward the democratic laws of his tribuneship) may plead that he made it as the representative of his commander-in-chief.

At times, on the other hand, the blame may be shifted to some thing: for instance, a person who has failed to comply with some testamentary injunction may plead that the laws forbade such compliance. The Greek term for such shifting is μετάστασις. If these methods of defence are out of the question, we must take refuge in making excuses. We may plead ignorance. For example, if a man has branded a runaway slave and the latter is subsequently adjudged to be a free man, he may deny that he was cognisant of the truth. Or we may plead necessity; for instance, if a soldier overstays his leave, he may plead that his return was delayed by floods or ill health.

Again, the blame is often cast upon fortune, while sometimes we assert that, although we undoubtedly did wrong, we did so with the best intentions. Instances of these two latter forms of excuse are, however, so numerous and obvious that there is no need for me to cite them here.

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If all the above-mentioned resources prove unavailable, we must see whether it may not be possible to extenuate the offence. It is here that what some call the quantitative basis [*](cp. III. vi. 23, 51, 53. ) comes into play.

But when quantity is considered in reference to punishment or reward, it is determined by the quality of the act, and therefore in my opinion comes under the qualitative basis, as also does quantity which is used with reference to number by the Greeks, who distinguish between ποσότης and πηλικότης [*](ποσότης = quantity with reference to number; πηλικότης = quantity with reference to magnitude. ) : we, however, have only one name for the two.

In the last resort we may plead for mercy, a though most writers deny that this is ever admissible in the courts. [*](Pro Lig. X. 30. ) Indeed Cicero himself seems to support this view in his defence of Quintus Ligarius where he says,

I have pleaded many causes, Caesar, some of them even in association with yourself, so long as your political ambitions prevented you from abandoning the bar, but never have I pleaded in words such as these, ' Forgive him, gentlemen, he erred, he made a slip, he did not think that it mattered, he will never do it again,'

and so on.

On the other hand, in addressing the senate, the people, the emperor or any other authority who is in a position to show clemency, such pleas for mercy have a legitimate place. In such cases there are three points based on the circumstances of the accused which are most effective. The first is drawn from his previous life, if he has been blameless in his conduct and deserved well of the state, or if there is good hope that his conduct will be blameless for the future and likely to be of some use to his fellow men; the second is operative if it appears that he has been sufficiently

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punished already on the ground that he has suffered other misfortunes, or that his present peril is extreme, or that he has repented of his sin; while thirdly we may base his appeal on his external circumstances, his birth, his rank, his connexions, his friendships.