Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
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.
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
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, [*](lx. 168.) where he denies that the man alleged by the accuser to have fallen dead on the spot after drinking the contents of the cup, died on the same day.
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. ) is charged with having embezzled the supplies intended to feed the troops. It is a serious charge, but Cicero shows that it contradicts other charges, since the same accusers also charged Oppius with desiring to corrupt the army by bribes.
The accuser of Cornelius offers to produce witnesses to show that he read out the law when tribune [*](cp. IV. ii. 13. ) : Cicero makes this argument
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 [*]( Rabirius was accused of causing the death of Saturninus forty years after the event. ) by Labienus; of inhumanity in the case of Tubero who accused Ligarius when he was an exile and attempted to prevent Caesar from pardoning him; of arrogance as in the case of the charge brought against Oppius [*]( P. Oppius, quaestor to M. Aurelius Cotta in Bithynia, was charged by Cotta in a letter to the senate with misappropriation of supplies for the troops and with an attempt on his life. Cicero defended him in 69 B.C. The speech is lost. ) on the strength of a letter of Cotta.
Similarly, it may be shown that charges are hasty, insidious or vindictive. The strongest argument, however, which can be brought against a charge is that it involves peril to the community or to the judges themselves; we find an example of the former in the pro Tullio, [*](cp. IV. ii. 131. The speech is lost. ) where Cicero says
Who ever laid down such a principle as this, or who could be allowed, without grave peril to the community, to kill a man, just because he asserts that he feared that he himself might beAn instance of the latter occurs in the pro Oppio, where Cicero warns the judges at some length not to permit such an action to be brought against the equestrian order. [*]( A third of the jury were composed of equites. cp. III. vii 20, v. ix. 13. )v4-6 p.325killed by him?