Institutio Oratoria

Quintilian

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

I should imagine that there could never be a case, or at any rate an actual case in the courts, in which neither side said anything about the character of the persons involved; but this is not true of causes and motives, for it is often wholly unnecessary to trouble ourselves about them, as, for example, in cases of theft or adultery, crimes which carry their motives on the face of them.

Next we must consider the intention, a term which involves a number of questions, such as whether it is probable that the accused hoped that he would be able to carry such a crime into effect, or that it would escape detection when committed, or that, even if detected, it would be pardoned or punished but lightly or after considerable lapse of time, or that the inconvenience involved by the penalty would be outweighed by the pleasure resulting from the crime: or again, whether it was worth while incurring the penalty;

and further, whether he could have done the deed at some other time and in some other way, or with greater ease or security, as Cicero says in the pro Milone, [*]( c. xiv. sqq. ) where he mentions the numerous occasions when his client could have killed Clodius with impunity. There is also the question why the accused should have chosen that particular place or time or means for the commission of the crime, a topic to which Cicero gives a thorough treatment in the same passage;

or whether, without having the least reason for the deed, he was carried away by the impulse of the moment and acted without deliberate purpose (for it is a common saying that crimes are irrational), or finally, whether he was led astray by the fact that crime had become a habit with him.

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Having dealt with the question whether he intended to commit the crime, we proceed to the question whether he was in a position to commit it. Under this head we discuss the place and occasion of the offence. For instance, in a case of theft we ask whether it was committed in a secluded or frequented spot, in the daytime, when witnesses are more numerous, or by night, when success is more difficult.

Consequently we shall consider all the circumstances rendering the act difficult or easy of accomplishment; these require no illustration, being numerous and familiar. This second topic is of such importance that, if it is impossible to give it satisfactory treatment, the case falls to the ground; if, however, we succeed in dealing with it adequately, we must proceed to consider whether the accused actually committed the act. But this topic involves conjecture as to intention, for it is from these facts that we infer whether he hoped for success or not. Therefore we must also consider the question of the means at his disposal, such, for example, as the retinues of Clodius and Milo.

The question whether he actually did the deed belongs, in the first place, to the second division of time, namely the present, and secondly to time that is almost, though not actually contemporary: under this latter head come circumstances such as noise, cries or groans, [*](cp. x. 45. ) while concealment, fear and the like belong to subsequent time. To these must be added indications, which we have already discussed elsewhere, [*](v. ch. ix.) and words and acts antecedent or subsequent to the crime.

These words and acts are either our own or those of others. With regard to words, our own do us greater harm and bring us less profit

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than do those of others, while those of others bring us greater profit and do us less harm than our own. On the other hand, with regard to deeds, it is sometimes from our own and sometimes from those of others that we derive the greatest advantage, as, for example, when our opponent has done something which tells in our favour: but our own acts are always more injurious to our case than are those of others.

Again, with regard to words, we must distinguish between those whose meaning is clear and those whose significance is doubtful. The latter will necessarily give less assistance to either side, be they our own words or another's. On the other hand, any ambiguity in our own words will always tell against us, as, for example, in the following controversial theme.

A son, on being asked where his father was, replied: 'Wherever he is, he is alive.' But the father was found dead at the bottom of a well.

When the ambiguity lies in words used by others, they can never do us any harm, unless he who uttered them be unknown or dead; I will give two illustrations of my meaning:

A cry was heard at night, 'Be on your guard against the establishment of a tyranny';

and,

on being asked who had poisoned him, he replied: 'It is not fit that you should know.'

For if the speaker is available for examination, he will clear up the ambiguity.

Finally, whereas our own words and deeds can only be justified by their intention, the deeds and words of others can be disposed of in a number of different ways. My remarks on this subject have, I think, been confined to one very important class of conjectural cases, but something of what I have said will apply to all cases. For example, in cases concerned with

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theft, deposits and loans, arguments are derived both from possibilities (as when we enquire whether there was any money to deposit), and from persons, as when we raise the question whether it is credible that anyone deposited money with this man or trusted him with a loan, or that the claimant is bringing a false accusation, or that the accused repudiates his debt or is a thief.

But even in the case of an accusation of theft, just as in an accusation of murder, we enquire both into the act and the author, while in cases concerned with loans and deposits there are also two questions (though these are always distinct from one another), namely, whether the money was delivered and whether it has been repaid. Cases of adultery are marked by the following peculiarity, that, as a rule, the safety of two persons is involved, and it is necessary to say something of the past life of both, although some have raised the question whether both parties should be defended together. The line to be taken must depend on the circumstances of the individual case: if the defence of one party lends support to the defence of the other, I should defend them conjointly; if the reverse is the case, I should treat the two cases separately.

However, that no one may think me somewhat hasty in saying that two persons are as a rule involved in charges of adultery, I would point out that I would not assert that this is always the case. The woman alone may be accused of adultery with a person unknown: we may say,

Gifts were found in the house, and money from some unknown source, and love-letters whose destination cannot be ascertained.

The case is similar in accusations of forgery: for either there are several accused or only

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one. The writer of a document always regards it as necessary to support the signatory, but the signatory does not always support the writer of the document, for it is always possible that he has been deceived on the matter. [*]( The writer will always support the signatory's statement that he signed the document. The signatory will not always support the writer; e. g. he may not know the nature of the document which he signed. ) On the other hand, the man who is said to have called in their services, and for whom the document is alleged to have been written, will always defend both writer and signatories. The arguments employed in cases of treason or attempted tyranny will be drawn from the same sources.

But the custom prevalent in the schools of regarding everything not definitely stated in the theme as being in the speaker's favour, [*](cp. IV. ii. 28. As the examples which follow show, the declaimer assumes that his imaginary opponent has no good evidence to support his case: i.e. no witness, no informer, no weapons, no bodyguard. ) is likely to prove harmful to students destined for practice in the courts. You bring a charge of adultery.

Who is your witness? who is your informer?

You charge me with treason.

What was my reward? who was my accomplice?

You charge me with poisoning.

Where did I buy the poison, and from whom? When did I buy it, what was the price, and whom did I employ to administer it?

Or in defence of one charged with attempting to establish himself as tyrant, the declaimer will cry,

Where are my weapons, and what bodyguards have I ever collected?

I do not deny that these questions should be asked, or that we should use them as far as is permitted by the rôle which we have assumed; for even in the courts I feel that it will be desirable to put such questions, if my opponent is not in a position to reply effectively; but we have often felt the lack of such freedom in the courts, whereas in the schools there is scarcely a case where one or more examples of this method are not to be found.

Similar to this is the practice which some

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declaimers allow themselves in their perorations of assigning children, parents and nurses to their characters at will, though it is more reasonable to call for evidence which is not explicitly mentioned in the statement of the theme than to introduce it ourselves. [*](i.e. it is safer to ask the imaginary opponent where is your evidence? than to produce imaginary evidence ourselves. ) With regard to the method to be followed when we enquire into intention, I have said enough in dividing the subject into three questions, [*](§ 27.) namely, whether the accused intended to do the deed, whether he was in a position to do it and whether he actually did it. For the method of enquiring into the purpose with which an act was committed is identical with that employed in enquiring whether the deed was intended, since it amounts to asking whether a criminal act was intended.

Further, the order in which the facts are stated may either contribute to or detract from the credibility of our case; for consistency and the reverse depend to a very great extent on the way the circumstances are arranged. But we shall be unable to detect these qualities unless we consider the circumstances in connexion with the case as a whole. None the less, it will always be necessary to consider what are best suited to be placed together.