Institutio Oratoria

Quintilian

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

Then there are cases concerned with the appointment of a prosecutor, which are known as divinations. In this connexion Cicero, who was indicting Verres on the instruction of our Sicilian allies, adopts the following division-to the effect that the main point for consideration is, by whom those the redress of whose wrongs forms the subject of the trial would prefer to be represented, and by whom the accused would least desire them to be represented.

But in the great majority of cases the questions raised are, which claimant has the strongest

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motives for undertaking the role of accuser, which is likely to bring the greatest energy or talent to the task, and which is likely to press the charge with the greatest sincerity.

Next we may take cases concerned with guardianship, in which it is usual to enquire whether it is necessary to investigate anything save the accounts, and whether anything can be demanded of the guardian except the honest execution of his trust; his sagacity and the success of his administration being beside the mark. Cases of fraud on the part of an agent, which are styled cases of conduct of business when they occur in the actual courts, are of a similar nature, since they also are concerned with the administration of a trust.

In addition to these we have the fictitious cases of the schools which deal with crimes not covered by the law, where the question is as a rule either whether the crime is really not covered by the law or whether it is a crime, though on rare occasions both questions are raised. Cases of misconduct on the part of an ambassador are of frequent occurrence among the Greeks, even in actual life: in these the legal question is raised whether it is lawful to deviate at all from one's instructions and for how long the accused was technically an ambassador, since in some cases the ambassador's duty is to convey a communication to a foreign power and in others to bring one back. Take for example the case of Heius, who gave evidence against Verres after performing his duties as ambassador. But in such cases the most important question turns on the nature of the deed complained

of Next come cases of action contrary to the interests of the state. In these we meet with legal quibbles as to what is the meaning of

action contrary to the
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interests of the state,

and whether the action of the accused was injurious or profitable, or whether the interests of the state suffered at his hands or merely on his account: but the most important question is that of fact. There are also cases of ingratitude; in these we raise the question whether the accused has really received any kindness. It is only rarely that the fact can be denied, as denial is in itself a sign of ingratitude. But there are the further questions as to the extent of the kindness and whether it has been repaid.

If it has not been repaid, does this necessarily involve ingratitude? Was it in his power to repay? Did he really owe the return which was demanded of him? What is his intention? Somewhat simpler are cases of unjust divorce, a form of controversy which has this peculiarity, that the accuser defends and the defendant accuses. [*](i.e. the divorced wife defends her character, while the husband attacks her character. )

Further there are cases where a senator sets forth to the senate the reasons which determine him to commit suicide, [*]( Based on a law of Massilia, where the state provided poison for the would-be suicide, provided he could justify himself before the senate. ) in which there is one legal question, namely, whether a man who desires to kill himself in order to escape the clutches of the law ought to be prevented from so doing, while the remaining questions are all concerned with quality. There are also fictitious cases concerned with wills, in which the only question raised is one of quality, as, for instance, in the controversial theme quoted above, [*](VII. i. 38.) where the philosopher, physician and orator all claim the fourth share which their father had left to the most worthy of his sons. The same is true of cases where suitors of equal rank claim the hand of an orphan and the question confronting her relatives is which is the most suitable.

I do not, however, intend to discuss every possible theme,

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since fresh ones can always be invented, nor yet to deal with all the questions to which they give rise, since these vary with circumstances. But I cannot help expressing my astonishment that Flavus, [*](i.e. Verginius mentioned in § 24. ) for whose authority I have the highest respect, restricted the range of quality to such an extent in the text-book which he composed for the special guidance of the schools.

Quantity also, as I have already stated, [*](§ 16.) falls as a rule, though not always, under the head of quality, whether it is concerned with measure or number. Measure, however, sometimes consists in the valuation of a deed with a view to determining the amount of guilt or the amount of benefit involved, while, on the other hand, it sometimes turns on a point of law, when the dispute is under what law a man is to be punished or rewarded.

For example is a ravisher to pay 10,000 sesterces [*](cp. IV. ii. 69. ) because that is the penalty appointed by law, or is he liable to capital punishment as a murderer because his victim hanged himself? In such cases those who plead as if there were a question between two laws, are wrong: for there is no dispute about the fine of 10,000, since it is not claimed by the prosecution.