Quintilian's Institutes of Oratory
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Book 7 - Chapter 1

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Definition of arrangement, § 1. Must be varied according to the nature of causes 2, 3. How Quintilian used to study and contemplate causes 4-9. The best order for arguments, 10-12. How we may reply to a single accusation, 13-15. Or to several, 16-18. How we may omit or neglect some points, 19-22. Further remarks on the consideration of a cause, 23-25. We must proceed by degrees to the most important points, 26-28. Quintilian used to increase the points in his own favor by division, 29-33. Invention assisted by division, 31-36. Which party should speak first, is not a matter for great consideration, 37-39. How the more intrinsic points in a cause are to be discovered is shown by a subject for declamation in the schools, 40-64.

1. LET division, then, as I signified above, be the distribution of a number of things into its component parts; partition the regular distribution of parts into their members, and a just disposition connecting those that follow with those that precede; and arrangement a due distribution of things and their parts in their proper places. 2. But let us remember that arrangement is often altered to suit the interest of a cause and that the same question is not always discussed first by both parties. Omitting other examples, Demosthenes and Aeschines may afford us an instance, because in the trial of Ctesiphon, each of them adopted a very different order, as the accuser commenced with the question of law, on which he thought himself the stronger, while the defendant introduced all other particulars, or almost all, before touching on the question of law in order to prepare the judges for considering the point of legality at the conclusion. 3. For it may be to the interest of one side to state one point first, and of the other to state another. Otherwise, the pleading would always be conducted at the pleasure of the prosecutor. In a case of mutual accusation, when each party defends himself before he accuses his adversary, the order of everything on either side must be different. I shall therefore set forth the method which I myself have followed, and which I have adopted partly from the rules of others and partly from my own reasoning. I have never made any mystery of it.

4. In forensic pleadings, it was my great care to ascertain, in the first place, all the points that were concerned in any cause. In the schools there are certain particulars, but few that are laid down previous to the declamation that the Greeks call θέματα (themata) and Cicero proposita. When I had placed these, as it were, full in my view, I contemplated the cause with reference no less to the opposite side than to my own.

5. First, then, (what is not difficult to be ascertained, but is above all to be regarded) I settled what each party wished to establish, and then by what means, in the following way. I considered what the prosecutor would state first: either an admitted or contested point. If it were admitted, the question could not lie in it. 6. I passed therefore to the answer of the defendant and considered it in the same way. Sometimes, too, what was elicited there was admitted. But as soon as there began to be any disagreement, the question arose. The process was of this nature: "You killed a man"—"I did kill him." The fact is admitted, so I pass on. 7. The defendant ought to give a reason why he killed him. "It is lawful", he may say, "to kill an adulterer with an adulteress." It is admitted that there is such a law. We may then proceed to a third point, about which there may be a dispute. "They were not guilty of adultery"—"they were." Hence arises the question. It is a controversy about fact, a matter of conjecture. 8. Sometimes, however, a third point is admitted, that they were guilty of adultery. "But," the accuser may say, "it was not lawful for you to kill them, for you were an exile or infamous." There is, then, a question about law. But if the prosecutor says at first, "You have killed," and the defendant replies, "I have not killed," then the dispute commences at once. It is thus that we must ascertain when the controversy begins, and we must consider what forms the first question.

9. The accusation may be simple: "Rabirius killed Saturninus," or complex: "Lucius Varenus has incurred the penalty of the law respecting assassins, for he is guilty of killing Caius Varenus, of wounding Cneius, and also of killing Salarius," since there will thus be three distinct propositions. The same may be said of civil suits. But out of a complex accusation may arise several questions and positions, if the accused denies one point, justifies another, and endeavors to set aside another by taking exceptions at the form of process. In this case, the accuser must consider carefully what he ought to refute and in what parts of his speech.

10. As to what concerns the accuser, I do not altogether dissent from Celsus, who, doubtless following Cicero, persists in maintaining somewhat too positively, on this head, that strong arguments should be advanced in the first place, the strongest of all in the last, and the weakest in the middle, because the judge requires to be moved at the beginning and pressed forcibly at the end. 11. But on the side of the accused, the strongest argument against him must first be attacked, lest the judge, looking to that point, regard with too little favor our establishment of other points. Yet this order may occasionally be changed, if the lighter points be evidently false and the refutation of the heaviest charge extremely difficult, so that we may proceed to the last point after thus detracting from the credit of the accusers, when the judge is ready to suppose that all the charges may be false. It will be necessary, however, to make some preliminary remarks, in which a reason may be given for putting off the consideration of the principal charge, and a refutation of it may be promised so we do not appear afraid of what we do not overthrow at once. 12. Attacks on the past life of the accused must generally be refuted first, so the judge may be inclined to hear with favor the question on which he is to give a decision. But Cicero, in his speech for Varenus, delayed the consideration of such charges to the conclusion, regarding not what is generally expedient, but what was expedient on that occasion.

13. When the accusation is simple, we must consider whether we will give our answer in one proposition or in several. If in one, whether we build our case on fact or on written law. If on fact, whether what is charged against us is to be denied or justified. If on written law, on what point of law the question stands and whether it regards the letter or the intention. 14. This we shall discover, if we ascertain what law it is that gives rise to the suit, that is, on what the point for decision rests. In the school exercises, some laws are laid down merely to connect a series of circumstances in a case, such as, "Let a father who recognizes a son he has exposed take him back on paying for his subsistence. Let it be lawful for a father to disinherit a son who is disobedient to his admonitions. A father who has taken back a son that he had exposed requires him to marry a rich relation. The son wishes to marry the daughter of the poor person that brought him up." 15. The law regarding children exposed is a subject for moving the feelings, but the decision depends on the law concerning disinheritance. Nor does the question always rest on one law only, but sometimes on more than one, as in a case of ἀντινομία (antinomia) or contradictory laws. Once this matter is considered, the points of the question will be apparent.

An example of a complex defense is Cicero's speech for Rabirius: "If he had killed Saturninus, he would have acted rightly, but he did not kill him." 16. But when we advance many arguments against one proposition, we must consider first all the points that can be advanced and then decide where in our speech each should be stated. 17. In this regard, do not hold the same opinion which I expressed a little above concerning propositions and to which I assented in respect to arguments (in the place in which I treated of proofs), that we may sometimes begin with the stronger. For in refutation, the force of our questions ought always to increase and to proceed from the weakest to the strongest, whether they be of the same or a different kind. 18. But questions of law may sometimes arise from one ground of dispute after another. Those of fact look always to one point; in both, however, the order is the same. But let us speak first of points of different kinds, the weakest of which ought to be discussed first.

After considering some questions, we generally concede or grant the weakest points to the opposite party, for we cannot pass to others unless by dismissing those that come first. 19. This ought to be done in such a manner that we may not appear to have despaired of them, but to have set them aside, because we can establish our cause without them. For example, an agent demands money from a person for interest on an inheritance. A question may arise whether the person who is acting as agent has a right to be an agent. 20. Suppose that after we have discussed this question, we give it up or are defeated upon it. The next question may be whether the person in whose name the action was brought has a right to have an agent. Suppose that we give way on this point also. The cause may admit of the question whether the person in whose name the suit is brought is heir to the person to whom the interest is due and sole heir of the estate. 21. If these points also be granted, it may be asked whether the money is really due. On the other hand, nobody would be so foolish as to yield what he considered his strongest point and pass on to others of minor importance. Similar to the preceding case is one that is given in the schools: "You must not disinherit an adopted son. Though you may disinherit this adopted son, you must not disinherit one who has deserved well of his country. Though you may disinherit one who has deserved well of his country, you may not disinherit whatever deserving son has not obeyed your will. Though he may have been bound to obey your will in all other things, you may not disinherit him for not having obeyed it in regard to an option, or, if you may disinherit him for an option, not for such an option as this." Such is the dissimilarity in questions of law. 22. But in matters of fact, there may be several questions all tending to the same object. For instance, if a person who is on trial for theft should say to the accuser, "Prove that you had the property; prove that you lost it; prove that you lost it by theft; prove that you lost it by my theft." The first three points may be conceded, but the last cannot.

23. I used also very frequently to adopt this method. I went back from the last species (for it is that which commonly contains the point for decision) to the first general question, or descended from the genus to the last species, and that even in deliberative causes. 24. Suppose, for example, that Numa deliberates whether he shall accept kingly power when the Romans offer it. First arises the general question whether he ought to reign at all. Then follow the particular questions: whether he ought to reign in a country not his own; whether at Rome; whether the Romans will tolerate such a king as himself. The case is similar in matters of controversy. Suppose a man who has deserved well of his country makes choice of another man's wife. The last special question is whether a man can make choice of another's wife. The general question is whether he who has deserved well of his country ought to receive whatever he makes the object of his choice. Then follow the inquiries: whether he can choose from the property of a private person; whether he can demand a woman in marriage; whether he can demand one who has a husband. 25. But these questions are not set forth in our speech in the same order in which they occur to us, for that in general occurs first which is to be expressed last: "You ought not to make choice of another man's wife." Hence haste spoils division. We should not, therefore, content ourselves with what offers itself, but should inquire something further, as whether he may even make choice of a widow, or further still, whether he may choose anything belonging to a private person, or last of all, going back to what is next to the general question, whether he may make choice of anything unlawful. 26. Therefore, examining the proposition of our adversary (which is very easy), let us decide, if possible, what naturally should be answered first. This will readily occur to us if we but contemplate the cause as being actually pleaded and the necessity laid upon us of replying at once.

27. But if it should not occur, let us set aside that which occurs to us first and reason with ourselves by asking "What if it were otherwise?" and questioning ourselves a second and a third time, until nothing remains for consideration. Thus we shall examine even the minutest points, which, if well treated, will make the judge more inclined to listen to us on the main point. 28. With this process, the rule that "we should descend from what is common to what is particular" is not much at variance, for what is common is mostly general. "Some person has killed a tyrant" is a common or general proposition, but "a certain person has killed a tyrant; a woman has killed him; his wife has killed him" are particular propositions.

29. Provided they were to my purpose, I used also to select those points in which I agreed with my opponent, not only to press such matters as he admitted, but to multiply them by division. Such is the following case: "A general, who, in a competition for public honors, had come off superior to his father, was taken prisoner by the enemy. Certain deputies, going to ransom him, met the father on the road as he was returning from the enemy's camp, and he said to them, 'You are going too late.' 30. The deputies searched the father and found a sum of money in gold concealed in the breast of his robe. They then proceeded to their place of destination and found the general fixed to a cross, uttering the words, 'Beware of the traitor.' The father was accused." What is admitted on both sides? That treason was signified, and signified by the general. We try to find the traitor. You admit that you went to the enemy, and went secretly; that you returned in safety, brought away gold, and had the gold concealed.

31. What the accused has done is sometimes set forth very forcibly in the statement of the case, and if it takes possession of the mind of the judge, his ears are almost closed against the defense. In general, it is to the advantage of the accuser to amass facts and of the defendant to separate them. I used also to do, with regard to the whole subject of a cause, that which I noticed as being done in regard to arguments: stating all the particulars that could possibly be urged against me and overthrowing them one after another, I left nothing remaining but that which I wished to be believed. 32. Thus, in charges of prevarication, it may be argued, "The accused could have been acquitted only by the establishment of his innocence, or by the intervention of some authority, or by force or bribes having been offered to the judges, or through the difficulty of proof, or through prevarication: That he was guilty you admit; no authority interposed; there was no force offered; you do not complain that the judges were bribed; there was no difficulty in the way of proof; and what remains, then, but that there must have been prevarication?" 33. If I could not set aside all the points against me, I at least set aside the greater number. For instance, it is acknowledged that a man was killed. Not in a solitary place, to lead me to suspect that he was killed by robbers. Not for the sake of booty, for he was not rifled. Not in the hope of inheriting anything, for he was poor. Malice must then have been the cause. But who was his enemy? 34. This method of examining everything that can be said and of rejecting, as it were, one particular after another in order to arrive at the strongest point, not only facilitates the art of division, but also that of invention. Consider this example: "Milo is accused of killing Clodius. He either killed him or did not kill him." It would be safest to deny that he killed him, but if that cannot be done, it must be allowed that he killed him either justly or unjustly; and we must doubtless say justly. He killed him then either intentionally or through necessity, for ignorance cannot be pretended: 35. Whether there was intention is doubtful, but because people think there was, we must attempt some defense of it and say that the intention was to serve his country. Or shall we say that he killed him through necessity? The encounter with him was then accidental and not premeditated. One of them therefore was lying in wait: Which of the two? Assuredly Clodius. Do you see how the necessary chain of circumstances leads us to the ground of defense? 36. Let us consider further: "He certainly either wished to kill the lier-in-wait Clodius, or he did not." It is safer if we can say that he did not. "Then the attendants of Milo must have done the deed, without orders from Milo, and without his knowledge." But this timid mode of defense detracts from the credit of our assertion that Clodius was justly killed. 37. We must therefore add, "The attendants acted in such a way as each of us would wish his own attendants to act." This kind of practice is the more useful, as it often happens that nothing that prevents itself pleases us, and yet something must be said. We should accordingly contemplate the cause under every aspect, and therefore either that which is best will be discovered or that which is least bad. I have observed in the proper place that occasionally we may turn the statement of our adversary to advantage, sometimes equally to the purpose of both parties.

I know that some authors have discussed in many thousands of lines how we may discover which party ought to speak first, but this is decided in the forum either by the rigor of formulae, or by the nature of the process, or finally by lot. 38. In the schools, such inquiries are of no importance, since it is allowable to make a charge and to refute it, in the same declamation, as well on the side of the prosecutor as on that of the defendant. But in most suits, it cannot even be determined which party has a right to precedence. For example, "A father who had three sons—one an orator, another a philosopher, and a third a physician—divided his property by his will into four parts and gave one part to each of the three, directing that the fourth part should go to him who should be of most service to his country." 39. They go to court. Who ought to speak first is uncertain, though the statement of the base is clear, for we must begin with him whose part we take. Such are the directions that may be given about division in general.

40. But how shall we find out questions that are more obscure? Just as we discover thoughts, words, figures, style, namely, by the exercise of our ability and by care and practice. Scarcely anything, however, will escape a speaker, unless he is inattentive, if he will, as I remarked, but take nature for his guide. 41. But many orators, affecting a character for eloquence, are content with arguments that are merely showy or that contribute nothing to the establishment of their case. Others think that they let nothing escape them, while they merely contemplate what presents itself to their own eyes. That what I say may be the better understood, I will give as an example a case from the schools, one not very difficult or new: 42. "Let the son be disinherited who neglects to plead for his father on a trial for treason. Let the man who is found guilty of treason be banished with the advocate who pleads for him. A father was accused of treason. One of his sons, who was a man of eloquence, appeared as advocate for his father. The other, an illiterate man, did not appear at all. The father was found guilty and went into exile with the son who pleaded for him. The illiterate son, after distinguishing himself by his bravery, obtained from his country as a reward the recall of his father and his brother. The father returned and died intestate. The illiterate son sues for a portion of his property. The eloquent son claims the whole of it." 43. In this case those men of eloquence—to whom we appear ridiculous for being anxious about causes that rarely occur—will seize upon the favorable characters. Their pleading will be for the illiterate against the eloquent son; for the brave against the unwarlike; for the benefactor against the ungrateful; for him who desires only a part of his father's property, against him who would allow no portion of it to his brother. 44. All these are points in the cause and a great support to it, but they do not secure victory. In such a cause, the thoughts sought by such orators will be, if possible, daring or obscure (for obscurity is now a virtue), and they will think that they come off well in the matter if they distinguish themselves with sufficient clamor and noise. Those, again, whose object is better, but whose regard is confined to that which readily presents itself, will see the following points, as it were, swimming on the surface: 45. "That the illiterate son was excusable for not appearing at the trial, as he could have been of no assistance to his father; that the eloquent son has little ground for blaming the other for his absence, as the father was found guilty; that he who procured his father's recall deserves to inherit his father's property; and that the other son is of a covetous, unnatural, and ungrateful disposition, as he refuses to share the inheritance with a brother to whom he owes so much."

They will see also that a question may be raised as to the letter and intent of the law, and that, unless this question be settled, there can be no room for anything else to follow. 46. But he who shall follow nature will doubtless reflect that the illiterate son will first say, "My father, dying intestate, left two sons, my brother and myself, and I claim part of his property by the common law of nations." Who indeed is so thoroughly foolish and ignorant that he would not commence thus, even though he knows not what a proposition is? 47. The pleader will moderately commend this common law of nations as being extremely just. It then follows that we consider what can be replied to so equitable a claim. A reply presents itself at once: "The law directs that a son who does not defend his father when accused of treason is to be disinherited, and you did not defend your father." On this proposition will naturally follow some praise of the law and some censure of the son for not defending his parent. 48. Up to this point, we have had to do only with what is admitted. Let us again turn our attention to the claimant—unless he is utterly senseless, will he not plead thus? "If the law stands in the way, there is no ground for an action; the trial is a mere form." But there is no doubt that there is a law in the way and that it punishes that of which the illiterate son was guilty." What then shall we say on his behalf? "I was illiterate." 49. But the law was in force, and it comprehends all men, so it will be of no use to allege want of education. Let us inquire, then, whether the law can be invalidated in any point. What does nature suggest (for to nature I must frequently appeal) but that when the letter of a law is against us, we must look to the intention of it? The general question then arises whether we ought to rest on the letter, or on the intention, of any law? But concerning law in general, we may dispute forever, nor has this point ever been fully decided. We must inquire, therefore, whether in this particular law about which we are concerned, anything can be found that is at variance with the letter of it. 50. The law says, then, "Whatever son has not defended his father shall be disinherited." What? Whatever son, without exception? Considerations such as the following will then present themselves of their own accord: "Suppose that a son who was but an infant, or one who was sick, or one who was out of the country, or in the army, or on an embassy, did not defend his father. Would he be disinherited?" Something considerable has now been gained. A son may not have defended his father, and yet not be disinherited.

51. Let him, however, who has so far meditated on the case, "pass over," as Cicero says, "after the manner of a Latin flute-player" to the side of the eloquent son. He will say, "Though I allow the reasonableness of such exceptions, you were not an infant, or out of the country, or serving in the army." Will anything else occur to the other son, but to say, "I am illiterate"? 52. But the eloquent son will make the obvious reply, "Though you could not plead for your father, you might have appeared at his side." And the remark is just. The illiterate son must consequently recur to the intention of the lawgiver: "He intended," he will say, "to punish unnatural conduct, but I have not behaved unnaturally." 53. In reply, the eloquent son will say, "You did act unnaturally, as you incurred the penalty of being disinherited, though penitence or desire of distinction has since gained you the privilege of this kind of option. Besides, it was through you that your father was found guilty, for you seemed to have already decided on his case." To this the illiterate son will reply, "You rather were the cause that he was found guilty, for you had offended many people and excited enmity against our family." These allegations are conjectural, as is the statement of the illiterate son as an excuse for his absence—that it was the object of his father not to expose his whole family to danger. Such are the considerations that come under the first question as to the letter and intent of the law.

54. Let us further direct our attention and examine whether anything more can be found and, if so, how it may be discovered. I purposely imitate the manner of one inquiring, that I may teach the student how to inquire, and laying aside all regard to ornaments of style, lower myself to promote the advantage of my pupils. To this point, we have drawn all our questions from the person of the claimant. Why should we not ask some questions regarding the father? The words of the law are, "Whatever son has not defended his father shall be disinherited." 55. Why may we not ask this question, "What is the character of the father whom he has not defended?" We ask such a question frequently in those cases in which sons who are prosecuted for not supporting their parents are liable for the penalty of imprisonment. Take for example the son who did not support his mother who gave evidence against him when he was accused of not being a Roman citizen; and the son who did not maintain the father who sold him to a slave dealer. But with regard to the father of whom we are speaking, of what argument can we lay hold? He was found guilty. 56. Does the law then relate only to fathers who are acquitted? A hard question at first sight. But let us not despair. It is probable that the intention of the legislator was that the aid of children should not be wanting to innocent fathers. But the illiterate son would be ashamed to allege this intention, because he acknowledges that his father was innocent. 57. The law, however, furnishes another argument in the cause: "Let him who is found guilty go into exile with his advocate." It seems scarcely possible that a penalty should have been directed against a son, in reference to the same father, whether the son appeared in his defense or did not appear. Besides, no law has any relation to exiles. It is not, therefore, probable that this law was intended to refer to the advocate of the person condemned, for can any property be possessed by an exile? The illiterate son, whether he looks to the letter or the intention of the law, makes it doubtful whether he was called upon to defend his father. 58. The eloquent son will both cling to the words of the law, in which no exception is expressed, and will say that it was from this very consideration that the penalty of being disinherited was denounced against sons who should not defend their fathers, lest they should be deterred from defending them by fear of banishment. He will also say that his illiterate brother did not appear on behalf of an innocent father. It is well deserving of remark that from one position may spring two general questions— whether every son is obliged to defend his father, and whether every father has a right to expect defense from his son. 59. All our questions hitherto have arisen from two persons. As for the third, the adversary, no question can arise about him because there is no controversy about his share of the property. Let our investigations, however, be still pursued, for all that has been said might have been said even though the father had not been recalled from exile. Nor let us fix immediately on the reflection which readily presents itself: that his recall was procured by the illiterate son. He that sagaciously considers that point will find his view directed to something further, for as species follow genus, so genus precedes species. 60. Let us suppose, therefore, that his recall had been procured by another. A question of ratiocination and syllogism will arise: is the recall equivalent to a repeal of the sentence and does it place the father in the same position as if judgment had not been pronounced against him? Here the illiterate son would say he could not have obtained the restitution of his property, being entitled to one reward only, by any other means than by procuring the recall of his father on the same understanding as if he had never been accused, which would also annull the penalty of the advocate as completely as if he had not appeared on behalf of his father. 61. We then come to that which presented itself to us at first, that the father's recall was procured by the illiterate son. Here we again proceed to reason whether he who procured the recall ought not to be regarded in the light of an advocate, as he effected that which the advocate sought to effect; and that it is not unfair that that should be received as equivalent which is more than equivalent. 62. What remains is a question of equity: which of the two makes the more rightful claim? This question, too, admits of division: (1) even if each claimed the whole property and (2) when the one claims but half, and the other the whole, to the exclusion of his brother. But even when these points are discussed, the memory of the father will have great influence with the judges, especially when the question is about the disposal of his property. It will, therefore, be a subject for conjection what intention the father had in leaving no will at his death. But this relates to quality, which is a matter for another position. 63. It is, however, at the conclusion of causes that questions of equity are generally considered, because there is nothing to which judges listen with greater readiness. Yet expediency will occasionally cause a change in the order. For instance, if we have but little confidence that the law will be in our favor, we may work on the minds of the judges at the commencement by considerations of equity.

On this head I have no further directions to give in general. 64. But let us now proceed to consider the several parts of judicial causes. Though I cannot pursue them to the last species, that is, to every particular form of question and process, I may yet treat of them in a general way so as to show under which state each kind of cause commonly falls. And as the first question in a case is naturally whether what is alleged actually occurred, it is with this that I shall begin.

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