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 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.