Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
it is granted that they were adulterers.
But,says the accuser,
you had no right to kill them, for you were an exileor
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.
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
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.
We shall do this by considering what the law is which gives rise to the dispute, that is to say under what law the court has been constituted. In scholastic themes, for example, the laws are sometimes stated merely with a view to connecting the arguments of the cases. Take the following case:
A father who recognises a son whom he has exposed in infancy, shall only take him back after paying for his keep. A disobedient son may be disinherited.v7-9 p.15A man who took back a son whom he had exposed orders him to marry a wealthy neighbour. The son desires to marry the daughter of the poor man who brought him up.
The law about children who have been exposed affords scope for emotional treatment, while the decision of the court turns on the law of disinheritance. [*]( The first law is strictly irrelevant to the case, but can be employed by the son to stir the jury's emotions. He owes a deep debt of gratitude to his poor foster-father, and his love for his foster-sister is based on life-long acquaintance. The father, on the other hand, will urge that his payment for his son's nurture has discharged the debt due to the poor man and that his son is once more under the patria potestas. The introduction of the first law thus enables the pleader to introduce fresh arguments and is thus said to link up the arguments. ) On the other hand, a question may turn on more laws than one, as in cases of ἀντινομία or contradictory laws. [*](cp. III. vi. 46. and vii. ) It is by consideration of such points as these that we shall be able to determine the point of law out of which the dispute arises.
As an example of complex defence I may quote the pro Rabirio:
If he had killed him, he would have been justified in so doing: but he did not kill him.But when we advance a number of points in answer to a single proposition, we must first of all consider everything that can be said on the subject, and then decide which out of these points it is expedient to select and where to put them forward. My views on this subject are not identical with those which I admitted a little while ago [*](§ 10.) on the subject of propositions and on that of arguments in the section which I devoted to proofs, [*](v. xii. 14.) to the effect that we may sometimes begin with the strongest.
For when we are defending, there should always be an increase of force in the treatment of questions and we should proceed from the weaker to the stronger, whether the points we raise are of the same or of a different character.
Questions of law will often arise from one ground of dispute after another, whereas questions of fact are always concerned with one point; [*]( This statement amounts to no more than that there may be infinite complication where questions of law are concerned, but questions of fact are simple and there is but one point to be considered, was such and such an act committed? )