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.

v4-6 p.317

When it is impossible to plead justification or to raise the question of competence, [*](i.e. if we cannot say The act was right or This court is not competent to try it or The prosecutor has no locus standi. See n. on § 2. ) we must deny the facts, and that not merely when a definition of the facts will serve our case, but even when nothing except an absolute denial is left for us.

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.