Institutio Oratoria

Quintilian

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

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.