Refitation may be understood in two senses. For the duty of the defence
consists wholly in refutation, while whatever is said by our opponents
must be rebutted, whether we are speaking for the defence or the
prosecution. It is in this sense that refutation is assigned the fourth
place
As a rule no strong appeal to the emotions is made in refutation. It is
not, however, without reason that, as Cicero so often testifies, translatio is possible.
Literally it means transference of the charge
: it
would seem to cover cases where the charge was brought in the wrong
court or by the wrong person. It is used generally to indicate a
plea made by defendant in bar of plaintiff's action.
Moreover the prosecutor generally produces a speech which he has prepared at home, while the counsel for the defence has frequently to deal with quite unexpected points. The prosecutor brings forward his witnesses, while counsel for the defence has to refute the charge by arguments drawn from the case itself. The prosecutor draws his material from the odium excited by the charges, even though it have no justification, denouncing parricide, sacrilege, or treason, whereas counsel for the defence can only deny them. Consequently quite moderate speakers have proved adequate in prosecution, while no one can be a good counsel for the defence unless he possesses real eloquence. In a word, it is just so much easier to accuse than to defend as it is easier to inflict than to heal a wound.
The nature of the arguments put forward by our opponent and the manner
in which he produces them will, however, make an enormous difference to
our task. We must therefore first consider what it is to which we have
to reply, whether it is part and parcel of the actual case or has been
introduced from circumstances lying outside the case. For in the former
case we must deny or justify the facts or raise the question of
competence: for these are practically the sole methods of defence
available in the courts. Pleas for mercy,
which are not in any sense a method of actual defence, can rarely be
used, and e. g. in the emperor's court as opposed
to the quaestiones perpetuae or civil
actions. pro Ligario and pro
Deiotaro pleaded in Caesar's house. It is not known what
cases were tried before the (2nd) triumvirate. pro
Lig. iv. 10 What was our object, Tubero,
save that we might have the power that Caesar has now
But
if,
when pleading before the emperor or any other person who has power either to acquit or condemn, it is incumbent on us to urge that, while our client has committed an offence that deserves the death penalty, it is still the duty of a merciful judge to spare him despite his sins, it must be noted in the first place that we have to deal, not with our adversary, but with the judge, and secondly that we shall have to employ the deliberative rather than the forensic style. For we shall urge the judge to fix his desire rather on the glory that is won by clemency than on the pleasure that is given by vengeance.
On the other hand, when we are pleading before judges who have to give
their verdict in accordance with the prescriptions of law, it would be
absurd to give them advice as to how they should deal with a criminal
who admits his guilt. Consequently, when it is impossible either to deny
the facts or to raise the question of competence, we must attempt to
justify the facts as best we can, or else throw up the case. I have
pointed out that there are two ways in which a fact can be denied: it
can be denied absolutely, or it may be denied that a fact is of the
nature alleged. i.e. if
we cannot say The act was right
or This court
is not competent to try it
or The prosecutor has
no
See n. on § 2.
locus standi.
If witnesses are produced, there is much that may be said to discredit them; if a document is put forward, we may hold forth on the similarity of the handwritings. In any case there can be no worse course than confession of guilt. When denial and justification are both impossible, we must as a last resort base our defence on the legal point of competence.
Still, there are some cases in which none of these three courses is
possible. She is accused of adultery on the ground that after a
widowhood of twelve months she was delivered of a child.
In
this case there is no ground for dispute. Consequently I regard as the
height of folly the advice that is given in such cases, that what cannot
be defended should be ignored and passed over in silence, at any rate if
the point in question is that on which the judge has to give his
decision.
On the other hand, if the allegation is irrelevant to the actual case and no more than accessory, I should prefer simply to state that it has nothing to do with the question at issue, that it is not worth our attention, and that it has not the importance given to it by our opponent, though in such a case I should be prepared to pardon a policy of ignoring the charge such as I have just mentioned. For a good advocate ought not to be afraid of incurring a trivial censure for negligence, if such apparent negligence is likely to save his client.
We must further consider whether we should en masse or dispose of
them singly. We shall adopt the former course if the arguments are so
weak that they can be overthrown simultaneously, or so embarrassing that
it would be inexpedient to grapple with them individually. For in such a
case we must fight with all the force at our disposal and make a frontal
attack. Sometimes,
if it is difficult to refute the statements made by our opponents, we
may compare our arguments with theirs, at least if by such a procedure
it is possible to prove the superiority of our own. On the other hand,
those arguments which rely on their cumulative force must be analysed
individually, as for example in the case which I cited above:
You were the heir, you were poor and were summoned by your creditors
for a large sum: you had offended him and knew that he intended to
change his will.
The cumulative force of these arguments is damaging. But if you refute them singly, the flame which derived its strength from the mass of fuel will die down as soon as the material which fed it is separated, just as if we divert a great stream into a number of channels we may cross it where we will. We shall therefore adapt our method of refutation to the exigencies of our case, now dealing with individual arguments and now treating them in bulk.
For at times we may include in a single proposition the refutation of an
argument which our opponent has constructed of a number of different
points. For instance, if the accuser allege that the accused had a
number of motives for committing a crime, we may make a general denial
of the fact without dealing singly with each alleged motive, because the
fact that a man has had a motive for committing a
It will however as a rule be expedient for the prosecution to employ
massed arguments, and for the accused to refute them in detail. We must,
however, also consider the manner in which we should refute the
arguments of our opponent. If his statements be obviously false, it will
be sufficient to deny them. This is done by Cicero in the pro Cluentio,
Again, it requires no skill to rebut arguments which are obviously contradictory, superfluous or foolish, and consequently I need give no examples nor instructions as to the method to be employed. There is also the type of charge which is known as obscure, where it is alleged that an act was committed in secret without witnesses or any evidence to prove it: this suffers from an inherent weakness, since the fact that our opponent can produce no proof is sufficient for our purpose: the same applies to arguments which are irrelevant to the case.
It is, however, sometimes an orator's duty to make it appear that some
argument of his opponent is contradictory or irrelevant or incredible or
superfluous or really favourable to his own client. Oppius cp. § 21
and v. x 69.
The accuser of Cornelius offers to produce witnesses to show that he
read out the law when tribune cp. IV. ii. 13.
As regards other charges, they may all be dealt with by very similar methods. For they may be demolished either by conjecture, when we shall consider whether they are true, by definition, when we shall examine whether they are relevant to the case, by quality, when we shall consider whether they are dishonourable, unfair, scandalous, inhuman, cruel, or deserve any other epithet coming under the head of quality.
Such questions have to be considered, not merely in connection with the
statement of the charges or the reasons alleged, but with reference to
the nature of the case in its entirety. For instance, the question of
cruelty is considered with regard to the charge of high treason brought
against Rabirius