Institutio Oratoria

Quintilian

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

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, [*](See vii. iv. 17.)

which are not in any sense a method of actual defence, can rarely be used, and

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only before judges who are not limited to some precise form of verdict. [*](e. g. in the emperor's court as opposed to the quaestiones perpetuae or civil actions. ) Even those speeches delivered before Gaius Caesar [*]( As in the pro Ligario and pro Deiotaro pleaded in Caesar's house. It is not known what cases were tried before the (2nd) triumvirate. ) and the triumvirs on behalf of members of the opposite party, although they do employ such pleas for mercy, also make use of the ordinary methods of defence. For I think you will agree with me that the following passage contains arguments of a strongly defensive character [*]( Cic. 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.