Institutio Oratoria

IV. In speaking of quality we sometimes use the word in its most general sense, which covers a number of different questions. For we enquire sometimes into the nature and form of things: as for instance whether the soul is immortal or whether god is to be conceived of in human form. Sometimes, on the other hand, the question turns on size and number, as, for instance, what is the size of the sun or whether there are more worlds than one. In all these cases we arrive at our conclusions by conjecture, yet each involves a question of quality.

Such questions are sometimes treated in deliberative themes: for example, if Caesar is deliberating whether to attack Britain, he must enquire into the nature of the Ocean, consider whether Britain is an island (a fact not then ascertained), and estimate its size and the number of troops which lie will require for the invasion. Under the same head of quality fall questions whether certain things should be done or not and certain objects sought or avoided: such topics are specially adapted for deliberative themes, but occur with some frequency in controversial themes as well, the only difference being that in the latter we deal with what is past and in the former with the future.

Similarly all the topics of demonstrative [*]( See III. iv. 12 sqq. ) oratory involve a qualitative basis.

By far the strongest line that can be taken in defence is to assert that the act which forms the subject of the charge is actually honourable. A man is disinherited because he went on military service, stood for office or married without his father's consent. We defend this act. This form of defence is called κατ᾽ ἀντίληψιν by the followers of Hermagoras, that is, defence by objection, the term being used with reference to the purport of the defendant's plea. [*](ἀντίληψις is the technical term for this form of defence which turns not on the facts, but on the justice of the case. The meaning of ad intellectum id nomen referentes is obscure. If the words are correct (and no satisfactory correction seems possible), their meaning must be that the defence turns not on the act, but on its significance and equity. If any change is made in the text, the simplest course is to delete the words as a gloss which has crept into the text. ) I can find no exact Latin translation of the term; we call it an absolute defence. But in such cases the question is concerned with the justice or injustice of the act alone.

Justice is either natural or conventional. Natural justice is found in actions of inherent worth.

Under this head come the virtues of piety, loyalty, self-control and the like. To these some add the rendering of like for like. But this view must not be adopted without consideration: for to retaliate, or meet violence with violence on the one hand, does not imply injustice on the part of the aggressor, while on the other hand it does not follow that the first act was just merely because the two acts were alike. In cases where there is justice on both sides, the

There is another form of defence by which we defend an act in itself indefensible by arguments drawn from without. [*](i. e. from motives derived from facts lying outside the actual case. ) This the Greeks call κατ᾽ ἀντίθεσιν by opposition. Here again there is no Latin equivalent, since we call it defence by assumption.

The strongest line to take in this form of defence is to defend the act forming the subject of the charge by appealing to its motive. An example of this is provided by the defence put forward on behalf of Orestes, Horatius or Milo. The term ἀντέγκλημα, or counter-accusation, is employed when our defence consists entirely in accusing the person whom our opponents are seeking to vindicate.

He was killed, but he was a robber; he was blinded, but he was a ravisher.

There is another form of defence based on an appeal to the motives of the act which is the opposite of that which I have just described It consists not in defending the act per se, as we do when we employ the absolute defence, nor in opposing another act to it, but in appealing to the interests of the State, of a number of persons, of our opponent himself or finally at times of ourselves, provided always that the act in question is such as we might lawfully do in our own interests. If, however, the accuser is a stranger and insists on the letter of the law, this form of defence will invariably be useless, though it may

For example, in a suit concerned with the question of disinheritance a father may, without reflecting on himself, say to his sons that his act was of importance to his own interests, and the same plea may be urged by a husband accused of cruelty by his wile or a son who alleges that his father is insane. But in such cases the position of the man who seeks to avoid loss is stronger than that of him who aims at positive advantage.

Precisely similar methods are also employed in questions that occur in real life. For the scholastic themes concerned with the disowning of children are on exactly the same footing as the cases of sons disinherited by their parents which are tried in the public courts, or of those claims for the recovery of property which are tried in the centum viral court: themes dealing with cruelty find an actual parallel in those cases in which the wife claims the restoration of her dowry, and the question is whose fault it was that led to the divorce: and again the theme where the son accuses his father of madness has its analogy in cases where a suit is brought for the appointment of a guardian.

Under the same heading as the appeal to public or personal interest comes the plea that the act in question prevented the occurrence of something worse. For in a comparison of evils the lesser evil must be regarded as a positive good: for example, Mancinus may defend the treaty made with the Numantines on the ground that it saved the army from annihilation. This form of defence is called ἀντίστασις by the Greeks, while we style it defence by comparison.

Such are the methods by which we may

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.

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,'

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

It is, however, on the judge that we shall pin our highest hopes, if the circumstances be such that acquittal will result in giving him a reputation for clemency rather than for regrettable weakness. But even in the ordinary courts appeals for mercy are frequently employed to a large extent, although they will not colour the whole of our pleading. For the following form of division is common:—

Even if he had committed the offence, he would have deserved forgiveness,

Sometimes indeed the whole case may rest on such considerations. For example, if a father has made an express declaration that he has disinherited his son because lie was in love with a woman of the town, will not the whole question turn on the point whether it was the father's duty to pardon such an offence and whether it is the duty of the centumviral court to overlook it? Nay, even in penal prosecutions governed by strict forms of law we raise two separate questions: first whether the penalty has been incurred, and secondly whether, if so, it ought to be inflicted. Still the view of the authorities to whom I have referred that an accused person cannot be saved from the clutches of the law by this method of defence is perfectly correct.