Institutio Oratoria

Quintilian

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

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

v7-9 p.81

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

v7-9 p.83

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.

III. Conjecture is followed by definition. For the man who cannot assert that he has done nothing, must needs take refuge in the assertion that lie has not committed the act which is alleged against him. Consequently the laws which govern definition are for the most part the same as those which govern conjecture, the only difference lying in the method to be employed in defence in cases such as those concerned with theft, deposits or adultery. For just as we say,

v7-9 p.85

I have not committed theft, I never received a deposit, I am not guilty of adultery,

so we say,

This is not theft, this is not a deposit, this is not adultery.

Sometimes we may pass from quality to definition, as in actions concerned with lunacy, cruelty and offences against the State. In such cases if it is impossible to assert that the acts alleged were right, we are left with such pleas as,

To use bad language to one's wife does not amount to cruelty.

Definition is the statement of the fact called in question in appropriate, clear and concise language.

As I have already said, [*](V. x. 55.) it consists mainly in the statement of genus, species, difference and property. For example, if you wish to define a horse (for I will take a familiar example), the genus is animal, the species mortal, the diffrence irrational (since man also is mortal) and the properly neighing. Definition is employed by the orator for a number of different reasons.

For sometimes, though there may be no doubt as to a term, there is a question as to what it includes, or, on the other hand, there may be no doubt about the thing, but no agreement as to the term to be applied to it. When the term is agreed, but the thing doubtful, conjecture may sometimes come into play, as, for instance, in the question,

What is god?

For the man who denies that god is a spirit permeating all things, assuredly asserts that the epithet

divine

is falsely applied to his nature, like Epicurus, who gives him a human form and makes him reside in the intermundane space. While both use the same term god, both have to employ conjecture to decide which of the two meanings is consistent with fact.

Sometimes again we have recourse to quality, as in the question,

What is
v7-9 p.87
rhetoric? Is it the power to persuade or the science of speaking well?

This form of question is of frequent occurrence in the courts. For instance, the question may arise whether a man caught in a brothel with another man's wife is an adulterer. Here there is no doubt about the name; it is the significance of the act which is in doubt, since the question is whether he has committed any sin at all. For if he has sinned, his sin can only be adultery.

There is a different type of question where the dispute is concerned with the term to be applied, which depends on the letter of the law: it is a form of question which can only arise in the courts from the actual words on which the dispute turns. Take as examples the questions, whether suicide is a form of homicide, or whether the man who forces a tyrant to kill himself can be considered a tyrannicide, or whether magical incantations are equivalent to the crime of poisoning. In all these cases there is no doubt about the facts, for it is well known that there is a difference between killing oneself and killing another, between slaying a tyrant and forcing him to suicide, between employing incantations and administering a deadly draught, but we enquire whether we are justified in calling them by the same name.