Institutio Oratoria

Quintilian

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

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

v7-9 p.81

one. The writer of a document always regards it as necessary to support the signatory, but the signatory does not always support the writer of the document, for it is always possible that he has been deceived on the matter. [*]( The writer will always support the signatory's statement that he signed the document. The signatory will not always support the writer; e. g. he may not know the nature of the document which he signed. ) On the other hand, the man who is said to have called in their services, and for whom the document is alleged to have been written, will always defend both writer and signatories. The arguments employed in cases of treason or attempted tyranny will be drawn from the same sources.

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?

You charge me with treason.

What was my reward? who was my accomplice?

You charge me with poisoning.

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?

Or in defence of one charged with attempting to establish himself as tyrant, the declaimer will cry,

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

v7-9 p.83

declaimers allow themselves in their perorations of assigning children, parents and nurses to their characters at will, though it is more reasonable to call for evidence which is not explicitly mentioned in the statement of the theme than to introduce it ourselves. [*](i.e. it is safer to ask the imaginary opponent where is your evidence? than to produce imaginary evidence ourselves. ) With regard to the method to be followed when we enquire into intention, I have said enough in dividing the subject into three questions, [*](§ 27.) namely, whether the accused intended to do the deed, whether he was in a position to do it and whether he actually did it. For the method of enquiring into the purpose with which an act was committed is identical with that employed in enquiring whether the deed was intended, since it amounts to asking whether a criminal act was intended.