Institutio Oratoria

Quintilian

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

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 [*]( (i) exoidium, (ii) statement of facts, (iii) confirmation, (iv) refutation, (v) peroration. ) in pleadings, but the methods required in either case are identical. For the principles of argument in refutation can only be drawn from the same sources as those used in proof, while topics and thoughts, words and figures will all be on the same lines.

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, [*]( It is not clear what passages Quintilian has in his mind. ) the task of defence has always been considered harder than that of prosecution. In the first place accusation is a simpler task: for the charge is put forward in one definite form, but its refutation may take a number of different forms, since as a rule it is sufficient for the accuser that his charge should be true, whereas counsel for the defence may deny

v4-6 p.313

or justify the facts, raise the question of competence, [*]( See III. vi. 23. No exact rendering of 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. ) make excuses, plead for mercy, soften, extenuate, or divert the charge, express contempt or derision. The task of the accuser is consequently straightforward and, if I may use the phrase, vociferous; but the defence requires a thousand arts and stratagems.

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.