Institutio Oratoria

Quintilian

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

This should be done in such a way as to give the impression not that we regard the points as desperate, but that we have deliberately dropped them because we can prove our case without them. Suppose that the agent for a certain person claims the interest on a loan as due under an inheritance. The question may here arise whether such a claim can be made by an agent. [*](See IV. iv. 6.) Assume that, after discussing the question,

we drop it or that the argument is refuted. We then raise the question whether the person in whose name the action is brought has the right to employ an agent. Let us yield this point also. [*](cp. III. 6, 8. ) The case will still admit of our raising the question whether the person in whose name the suit is brought is heir to the person to whom the interest was due and again whether he is sole heir.

Grant these points also and we can still raise the question whether the sum is due at all? On the other hand, no one will be so insane as to drop what he considers his strongest point and pass to others of minor importance. The following case from a scholastic theme is of a similar character.

You may not disinherit your adopted son. And if you may disinherit him quâ adopted son, you may not disinherit one who is so brave. And if you may disinherit one who is so brave, you may not disinherit him because he has
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not obeyed your every command; and if he was bound to obey you in all else, you may not disinherit him on the ground of his choice of a reward; and even if the choice of a reward may give just ground for disinheriting, that is not true of such a choice as he actually made. [*]( The adopted son has done some heroic deed, bringing him under the scholastic law vir fortis optet quod uolet, Let a hero choose what reward he will ( cp. v. x. 97). A scandalous choice might give ground for disinheriting him (cp. § 24 below), but the choice in question is not scandalous. )

Such is the nature of dissimilarity where points of law are concerned. Where, however, the question is one of fact, there may be several points all tending to the same result, of which some may be dropped as not essential to the main issue, as for instance if a man accused of theft should say to his accuser,

Prove that you had the property, prove that you lost it, prove that it was stolen, prove that it was stolen by me.

The first three can be dropped, but not the last. I used also to employ the following method.

I went back from the ultimate species (which generally contains the vital point of the case) to the first general question or descended from the genus to the ultimate species, [*](cp. v. x. 5, 6. The statement man is an animal is insufficient as a definition, animal being the genus. Man is mortal introduces a species, but one common to other animals. Man is rational introduces the ultima species. ) applying this method even to deliberative themes.

For example, Numa is deliberating whether to accept the crown offered him by the Romans. First he considers the general question,

Ought I to be a king?

Then,

Ought I to be king in a foreign state? Ought I to be king at Rome? Are the Romans likely to put up with such a king as myself?

So too in controversial themes. Suppose a brave man to choose another man's wife as his reward. The ultimate species is found in the question whether lie is allowed to choose another man's wife. The general question is whether he should be given whatever he chooses. Next come questions such as whether he can choose his reward from the property of private individuals, whether he

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can choose a bride as his reward, and if so, whether he can choose one who is already married.

But in our search for such questions we follow an order quite different from that which we employ in actual speaking. [*](cp. III. ix. 6. ) For that which as a rule occurs to us first, is just that which ought to come last in our speech: as for instance the conclusion,

You have no right to choose another man's wife.

Consequently undue haste will spoil our division of the subject. We must not therefore be content with the thoughts that first offer themselves, but should press our inquiry further till we reach conclusions such as that he ought not even to choose a widow: a further advance is made when we reach the conclusion that be should choose nothing that is private property, or last of all we may go back to the question next in order to the general question, and conclude that he should choose nothing inequitable.

Consequently after surveying our opponent's proposition, an easy task, we should consider, if possible, what it is most natural to answer first. And, if we imagine the case as being actually pleaded and ourselves as under the necessity of making a reply, that answer will probably suggest itself. On the other hand,

if this is impossible, we should put aside whatever first occurs to us and reason with ourselves as follows:

What if this were not the case?

We must then repeat the process a second and a third time and so on, until nothing is left for consideration. Thus we shall examine even minor points, by our treatment of which we may perhaps make the judge all the better disposed to us when we come to the main issue.

The rule that we should descend from the common to the particular is much the same, since

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what is common is usually general. For example,

He killed a tyrant

is common, while

A tyrant was killed by his son, by a woman or by his wife

are all particular.

I used also to note down separately whatever was admitted both by my opponent and myself, provided it suited my purpose, and not merely to press any admissions that he might make, but to multiply them by partition, as for example in the following controversial theme:—

A general, who had stood against his father as a candidate and defeated him, was captured: the envoys who went to ransom him met his father returning from the enemy. He said to the envoys, 'You are too late.' They searched the father and found gold in his pockets. They pursued their journey and found the general crucified. He cried to them, ' Beware of the traitor.' The father is accused.

What points are admitted by both parties?

We were told that there had been treason and told it by the general.

We try to find the traitor.

You admit that you went to the enemy, that you did so by stealth, that you returned unscathed, that you brought back gold and had it concealed about your person.

For an act of the accused may sometimes be stated in such a way as to tell heavily against him, and if our statement makes a real impression on the mind of the judge, it may serve to close his ears to all that is urged by the defence. For as a general rule it is of advantage to the accuser to mass his facts together and to the defence to separate them. I used also, with reference to the whole material of the case, to do what I have already mentioned [*](V. x. 66.) as being done with arguments, namely, after first

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setting forth all the facts without exception, I then disposed of all of them with the one exception of the fact which I wished to be believed. For example, in charges of collusion it may be argued as follows.