Institutio Oratoria

Quintilian

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

When engaged in forensic disputes I made it a point to make myself familiar with every circumstance connected with the case. [*](cp iv. iv. 8; IV. ii. 28. ) (In the schools, of course, the facts of the case are definite and limited in number and are moreover set out before we begin to declaim: the Greeks call them themes, which Cicero [*](Top., 21. ) translates by propositions. ) When I

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had formed a general idea of these circumstances, I proceeded to consider them quite as much from my opponent's point of view as from my own.

The first point which I set myself to determine (it is easy enough to state, but is still all-important) was what each party desired to establish and then what means he was likely to adopt to that end. My method was as follows. I considered what the prosecutor would say first: his point must either be admitted or controversial: if admitted, no question could arise in this connexion.

I therefore passed to the answer of the defence and considered it from the same standpoint: even there the point was sometimes one that was admitted. It was not until the parties ceased to agree that any question arose. 'fake for example the following case.

You killed a man.
Yes, I killed him.
Agreed, I pass to the defence,

which has to produce the motive for the homicide.

It is lawful,
lie urges,
to kill an adulterer with his paramour.
Another admitted point, for there is no doubt about the law. We must look for a third point where the two parties are at variance.
They were not adulterers,
say the prosecution;
They were,
say the defence. Here then is the question at issue: there is a doubt as to the facts, and it is therefore a question of conjecure. [*](i.e. a question as to facts. cv. VII. ii. ) Sometimes even the third point may be admitted;

it is granted that they were adulterers.

But,
says the accuser,
you had no right to kill them, for you were an exile
or
had forfeited your civil rights.
The question is now one of law. On the other hand, if when the prosecution says,
You killed them,
the defence at once replies,
I did not,
the issue is raised without more delay.
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If it requires some search to discover where the dispute really begins, we must consider what constitutes the first question. The charge may be simple,

as for example

Rabirius killed Saturninus,
[*](cp. v. xi. 6. ) or complex like the following:
The offence committed by Lucius Varenus falls under the law of assassination for he procured the murder of Gaius Varenus, the wounding of Gnaeus Varenus and also the murder of Salarius.
[*](cp. v. xiii. 38. ) In the latter case there will be a number of propositions, a statement which also applies to civil suits as well. But in a complex case there may be a number of questions and bases : [*](cp. III. vi. 1 sq. ) for instance the accused may deny one fact, justify another and plead technical grounds to show [*](cp. III. vi. 23 and 52. ) that a third fact is not actionable. In such cases the pleader will have to consider what requires refutation and where that refutation should be placed.

As regards the prosecutor, I do not altogether disagree with Celsus, who, though no doubt in so doing he is following the practice of Cicero, insists with some vehemence on the view that the first place should be given to some strong argument, but that the strongest should be reserved to the end, while the weaker arguments should be placed in the middle, since the judge has to be moved at the beginning and forcibly impelled to a decision at the end. But with the defence it is different:

the strongest arguments as a rule require to be disposed of first, for fear that the judge through having his thoughts fixed on those arguments should regard the defence of other points with disfavour. Sometimes, however, this order is subject to alteration; for example if the minor arguments are obviously false and the refutation of the most serious argument a matter of some

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difficulty, we should attack it last of all, after discrediting the prosecution by demonstrating the falsity of the former, thereby disposing the judges to believe that all their arguments are equally unreliable. We shall, however, require to preface our remarks by explaining why we postpone dealing with the most serious charge, and by promising that we will deal with it at a later stage: otherwise the fact that we do not dispose of it at once may give the impression that we are afraid of it.

Charges brought against the past life of the accused should generally be dealt with first in order that the judge may be well disposed to listen to our defence on that point on which lie has to give his verdict. But Cicero in the pro Vareno postpones his treatment of such charges to the conclusion, being guided not by the general rule, but by the special circumstances of the case.

When the accusation is simple, we must consider whether to give a single answer to the charge or several. In the former case, we must decide whether the question is one of fact or of law: if it is one of fact, we must deny the fact or justify it: if, on the other hand, it is a question of law, we must decide on what special point the dispute arises and whether the question turns on the letter or the intention of the law.