Quintilian Institutio Oratoria 7.1

[1] Division, as I have already stated, ¹ means the division of a group of things into its component parts, partition is the separation of an individual whole into its elements, order the correct disposition of things in such a way that what follows coheres with what precedes, while arrangement is the distribution of things and parts to the places which it is expedient that they should occupy.

[2] But we must remember that arrangement is generally dependent on expediency, and that the same question will not always be discussed first by both parties. An example of what I mean, to quote no others, is provided by Demosthenes and Aeschines, who adopt a different order in the trial of Ctesiphon, since the accuser begins by dealing with the legal question involved, in which he thought he had the advantage, whereas the advocate for the defence treats practically every other topic before coming to the question of law, with a view to preparing the judges for a consideration of the legal aspect of the case.

[3] For it will often be expedient for the parties to place different points first; otherwise the pleading would always be determined by the good pleasure of the prosecution. Finally, in a case of mutual accusation, ² where both parties have to defend themselves before accusing their antagonist, the order of everything must necessarily be different. I shall therefore set forth the method adopted by myself, about which I have never made any mystery: it is the result in part of instruction received from others, in part of my own reasoning.

[4] When engaged in forensic disputes I made it a point to make myself familiar with every circumstance connected with the case. ³ (In the schools, of course, the facts of the case are definite and limited in number and are moreover set out before we begin to declaim: the Greeks call them themes, which Cicero ⁴ translates by propositions. ) When I had formed a general idea of these circumstances, I proceeded to consider them quite as much from my opponent's point of view as from my own.

[5] The first point which I set myself to determine (it is easy enough to state, but is still all-important) was what each party desired to establish and then what means he was likely to adopt to that end. My method was as follows. I considered what the prosecutor would say first: his point must either be admitted or controversial: if admitted, no question could arise in this connexion.

[6] I therefore passed to the answer of the defence and considered it from the same standpoint: even there the point was sometimes one that was admitted. It was not until the parties ceased to agree that any question arose. 'fake for example the following case. Agreed, I pass to the defence,

[7] which has to produce the motive for the homicide. lie urges, Another admitted point, for there is no doubt about the law. We must look for a third point where the two parties are at variance. say the prosecution; say the defence. Here then is the question at issue: there is a doubt as to the facts, and it is therefore a question of conjecure. ⁵ Sometimes even the third point may be admitted;

[8] it is granted that they were adulterers. says the accuser, or The question is now one of law. On the other hand, if when the prosecution says, the defence at once replies, the issue is raised without more delay. If it requires some search to discover where the dispute really begins, we must consider what constitutes the first question. The charge may be simple,

[9] as for example ⁶ or complex like the following: ⁷ In the latter case there will be a number of propositions, a statement which also applies to civil suits as well. But in a complex case there may be a number of questions and bases : ⁸ for instance the accused may deny one fact, justify another and plead technical grounds to show ⁹ that a third fact is not actionable. In such cases the pleader will have to consider what requires refutation and where that refutation should be placed.

[10] As regards the prosecutor, I do not altogether disagree with Celsus, who, though no doubt in so doing he is following the practice of Cicero, insists with some vehemence on the view that the first place should be given to some strong argument, but that the strongest should be reserved to the end, while the weaker arguments should be placed in the middle, since the judge has to be moved at the beginning and forcibly impelled to a decision at the end. But with the defence it is different:

[11] the strongest arguments as a rule require to be disposed of first, for fear that the judge through having his thoughts fixed on those arguments should regard the defence of other points with disfavour. Sometimes, however, this order is subject to alteration; for example if the minor arguments are obviously false and the refutation of the most serious argument a matter of some difficulty, we should attack it last of all, after discrediting the prosecution by demonstrating the falsity of the former, thereby disposing the judges to believe that all their arguments are equally unreliable. We shall, however, require to preface our remarks by explaining why we postpone dealing with the most serious charge, and by promising that we will deal with it at a later stage: otherwise the fact that we do not dispose of it at once may give the impression that we are afraid of it.

[12] Charges brought against the past life of the accused should generally be dealt with first in order that the judge may be well disposed to listen to our defence on that point on which lie has to give his verdict. But Cicero in the pro Vareno postpones his treatment of such charges to the conclusion, being guided not by the general rule, but by the special circumstances of the case.

[13] When the accusation is simple, we must consider whether to give a single answer to the charge or several. In the former case, we must decide whether the question is one of fact or of law: if it is one of fact, we must deny the fact or justify it: if, on the other hand, it is a question of law, we must decide on what special point the dispute arises and whether the question turns on the letter or the intention of the law.

[14] We shall do this by considering what the law is which gives rise to the dispute, that is to say under what law the court has been constituted. In scholastic themes, for example, the laws are sometimes stated merely with a view to connecting the arguments of the cases. Take the following case:

[15] The law about children who have been exposed affords scope for emotional treatment, while the decision of the court turns on the law of disinheritance. ¹⁰ On the other hand, a question may turn on more laws than one, as in cases of ἀντινομία or contradictory laws. ¹¹ It is by consideration of such points as these that we shall be able to determine the point of law out of which the dispute arises.

[16] As an example of complex defence I may quote the pro Rabirio: But when we advance a number of points in answer to a single proposition, we must first of all consider everything that can be said on the subject, and then decide which out of these points it is expedient to select and where to put them forward. My views on this subject are not identical with those which I admitted a little while ago ¹² on the subject of propositions and on that of arguments in the section which I devoted to proofs, ¹³ to the effect that we may sometimes begin with the strongest.

[17] For when we are defending, there should always be an increase of force in the treatment of questions and we should proceed from the weaker to the stronger, whether the points we raise are of the same or of a different character.

[18] Questions of law will often arise from one ground of dispute after another, whereas questions of fact are always concerned with one point; ¹⁴ but the order to be followed is the same in both cases. We must, however, deal first with points that differ in character. In such cases the weakest should always be handled first, for the reason that there are occasions when after discussing a question we make a concession or present of it to our opponents: for we cannot pass on to others without dropping those which come first.

[19] This should be done in such a way as to give the impression not that we regard the points as desperate, but that we have deliberately dropped them because we can prove our case without them. Suppose that the agent for a certain person claims the interest on a loan as due under an inheritance. The question may here arise whether such a claim can be made by an agent. ¹⁵ Assume that, after discussing the question,

[20] we drop it or that the argument is refuted. We then raise the question whether the person in whose name the action is brought has the right to employ an agent. Let us yield this point also. ¹⁶ The case will still admit of our raising the question whether the person in whose name the suit is brought is heir to the person to whom the interest was due and again whether he is sole heir.

[21] Grant these points also and we can still raise the question whether the sum is due at all? On the other hand, no one will be so insane as to drop what he considers his strongest point and pass to others of minor importance. The following case from a scholastic theme is of a similar character. Such is the nature of dissimilarity where points of law are concerned. Where, however, the question is one of fact, there may be several points all tending to the same result, of which some may be dropped as not essential to the main issue, as for instance if a man accused of theft should say to his accuser, The first three can be dropped, but not the last. I used also to employ the following method.

[23] I went back from the ultimate species (which generally contains the vital point of the case) to the first general question or descended from the genus to the ultimate species, ¹⁸ applying this method even to deliberative themes.

[24] For example, Numa is deliberating whether to accept the crown offered him by the Romans. First he considers the general question, Then, So too in controversial themes. Suppose a brave man to choose another man's wife as his reward. The ultimate species is found in the question whether lie is allowed to choose another man's wife. The general question is whether he should be given whatever he chooses. Next come questions such as whether he can choose his reward from the property of private individuals, whether he can choose a bride as his reward, and if so, whether he can choose one who is already married.

[25] But in our search for such questions we follow an order quite different from that which we employ in actual speaking. ¹⁹ For that which as a rule occurs to us first, is just that which ought to come last in our speech: as for instance the conclusion, Consequently undue haste will spoil our division of the subject. We must not therefore be content with the thoughts that first offer themselves, but should press our inquiry further till we reach conclusions such as that he ought not even to choose a widow: a further advance is made when we reach the conclusion that be should choose nothing that is private property, or last of all we may go back to the question next in order to the general question, and conclude that he should choose nothing inequitable.

[26] Consequently after surveying our opponent's proposition, an easy task, we should consider, if possible, what it is most natural to answer first. And, if we imagine the case as being actually pleaded and ourselves as under the necessity of making a reply, that answer will probably suggest itself. On the other hand,

[27] if this is impossible, we should put aside whatever first occurs to us and reason with ourselves as follows: We must then repeat the process a second and a third time and so on, until nothing is left for consideration. Thus we shall examine even minor points, by our treatment of which we may perhaps make the judge all the better disposed to us when we come to the main issue.

[28] The rule that we should descend from the common to the particular is much the same, since what is common is usually general. For example, is common, while are all particular.

[29] I used also to note down separately whatever was admitted both by my opponent and myself, provided it suited my purpose, and not merely to press any admissions that he might make, but to multiply them by partition, as for example in the following controversial theme:— What points are admitted by both parties? We try to find the traitor.

[31] For an act of the accused may sometimes be stated in such a way as to tell heavily against him, and if our statement makes a real impression on the mind of the judge, it may serve to close his ears to all that is urged by the defence. For as a general rule it is of advantage to the accuser to mass his facts together and to the defence to separate them. I used also, with reference to the whole material of the case, to do what I have already mentioned ²⁰ as being done with arguments, namely, after first setting forth all the facts without exception, I then disposed of all of them with the one exception of the fact which I wished to be believed. For example, in charges of collusion it may be argued as follows.

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[33] If I could not dispose of all the points against me, I disposed of the majority.

[34] The task not merely of division, but of invention as well, is rendered materially easier by this method of examining all possible arguments and arriving at the best by a process of elimination. Milo is accused of killing Clodius. Either he did or did not do the deed. The best policy would be to deny the fact, but that is impossible. It is admitted then that he killed him. The act must then have been either right or wrong. We urge that it was right. If so, the act must have either been deliberate or under compulsion of necessity, for it is impossible to plead ignorance.

[35] The intention is doubtful, but as it is generally supposed to have existed, some attempt must he made to defend it and to show that it was for the good of the state. On the other hand, if we plead necessity, we shall argue that the fight was accidental and unpremeditated. One of the two parties then must have lain in wait for the other. Which was it? Clodius without doubt. Do you see how inevitably we are led to the right method of defence by the logical necessity of the facts?

[36] We may carry the process further: either he wished to kill Clodius, who lay in wait for him, or he did not. The safer course is to argue that he did not wish to kill him. It was then the slaves of Milo who did the deed without Milo's orders or knowledge. But this line of defence shows a lack of courage and lessens the weight of our argument that Clodius was rightly killed.

[37] We shall therefore add the words, ²¹ This method is all the more useful from the fact that often we can find nothing to say that really pleases us and yet have got to say something. Let us therefore consider every possible point; for thus we shall discover what is the best line for us to pursue, or at any rate what is least bad. Sometimes, as I have already said in the appropriate context, ²² we may make good use of the statement of our opponent, since occasionally it is equally to the purpose of both parties. I am aware that some authors have written thousands of lines to show how we may discover which party ought to speak first. But in the actual practice of the courts this is decided either by some brutally rigid formula, or by the character of the suit, or finally by lot.

[38] In the schools, on the other hand, such an enquiry is mere waste of time, since the prosecution and the defence are indifferently permitted to state a case and refute it in the same declamation. But in the majority of controversial themes it is not even possible to discover who should speak first, as for instance in the following:

[39] The sons dispute the point. It is uncertain who should speak first, but our course is clear enough. For we shall begin with the son whose role we assume. So much for the general rules by which we should be guided in making our division.

[40] But how shall we discover those questions which present abnormal difficulty? Just as we discover reflexions, words, figures or the appropriate nuances of style, ²³ namely by native wit, by study and by practice. None the less it will be rare for anyone who is not a fool to fail to discover them, so long as he is content, as I have said, ²⁴ to accept nature for a guide.

[41] Many, however, in their passionate desire to win a reputation for eloquence are content to produce showy passages which contribute nothing to the proof of their case, while others think that their enquiry need not proceed further than that which meets the eye. To make my meaning clearer, I will cite a solitary example from the controversial themes of the schools; it is neither novel nor complicated.

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[43] In this case those paragons of eloquence, who laugh at us because we trouble our heads about cases that rarely occur, will always assume the popular rôle. They will defend the uneducated against the eloquent son, the brave against the coward, the son who secured the recall of his kin against the ungrateful son, the son who is content with a portion of the inheritance against the son who would refuse his brother a share in their patrimony.

[44] All these points are actually to be found in the case and are of considerable importance, but they are not such as to render victory a certainty. In such a case they will, as far as possible, search for daring or obscure reflexions (for to-day obscurity is accounted a virtue), and they will think they have given the theme a brilliant treatment by ranting and raving over it. Those, on the other hand, whose ideals are higher, but who restrict themselves merely to the obvious, will note the following points, which are, however, purely superficial.

[45] The uneducated son may be excused for not appearing at the trial on the ground that he could contribute nothing to his father's defence: but even the orator has no claim on the gratitude of the accused, since the latter was condemned: ²⁵ the man who secured the recall of his kin deserves to receive the inheritance, while the man who refuses to divide it with his brother, more especially with a brother who has deserved so well of him, is avaricious, unnatural and ungrateful: they will further note that the first and essential question is that which turns on the letter and intention of the law; unless this is first disposed of, all subsequent arguments must fall to the ground.

[46] He, however, who follows the guidance of nature will assuredly reflect as follows: the first argument of the uneducated son will be, Who is so ignorant or so lacking in education as not to make this his opening, even though he does not know what is meant by a proposition? ²⁶

[47] He will then proceed to extol, though with due moderation, the justice of this common law of nations. The next point for our consideration is what reply can be made to so equitable a demand? The answer is clear:— This statement will be followed by the necessary praise of the law and denunciation of the man who failed to appear.

[48] So far we have been dealing entirely with admitted facts. Let us now return to the claimant. Unless he is hopelessly unintelligent, surely the following argument will suggest itself:— What then shall we say?

[49] But if the law applies to all men, it will be of no avail to plead lack of education. We must therefore try to discover whether there be not some point on which the law can be invalidated. We turn for guidance to nature (a point on which I cannot insist too often); what does she suggest save that when the letter of the law is against us, we should discuss its intention? This introduces the general question whether we are to stand by the letter or the spirit. But if we argue this question on general grounds with reference to law in the abstract, we shall go on for ever; it is a question that has never been decided. We must therefore restrict our enquiry to the particular law on which our case turns and try to find some argument against adhesion to the strict letter.

[50] Well, then, is everyone who fails to appear in defence of his father to be disinherited? Are there no exceptions to the rule? At this point the following arguments will spontaneously suggest themselves. For we may imagine a case where the son is an infant and has failed to appear in his father's support. Again We have gained a considerable amount of ground; for we have established the fact that a man may fail to appear for his father and still inherit.

[51] Our declaimer, who has thought out this line of argument, must now pass over like a Latin flute-player, as Cicero says, ²⁷ to the side of the eloquent son and reply, Is there any answer to this except the previous reply, ?

[52] But to this there is the obvious retort, which is no more than the simple truth. The uneducated son must therefore return to the intention of the legislator.

[53] To this the eloquent son will reply, The uneducated son replies, These arguments are based on conjecture, as also will be the excuse put forward by the uneducated son to the effect that his father advised his absence, as he did not wish to emperil his whole family. All these arguments are involved in the preliminary question as to the letter and the intention of the law.

[54] Let us pursue the matter further and see if we can discover any additional arguments. How is that to be done? I am deliberately imitating the actual train of thought of one who is engaged in such an enquiry with a view to showing how such enquiry should be conducted. I shall therefore put aside the more showy kind of composition, and concern myself solely with such as may be of real profit to the student. So far we have derived all our questions from the character of the claimant. But why should we not make some enquiries into the character of the father? Does not the law say that whoever fails to appear for his father is to be disinherited?

[55] Why should we not try asking whether this means that he is to be disinherited, whatever the character of the father for whom he failed to appear? Such a course is often adopted in those controversial themes in which we demand that sons who fail to maintain their parents should be cast into prison: take for example the case of the mother who gave evidence against her son when accused of being an alien, or of the father who sold his son to a procurer. What, then, is there in the present case that we lay hold of as regards the character of the father?

[56] He was condemned. But does the law apply only to those cases where the father is acquitted? At first sight the question is difficult. But let us not despair. It is probable that the intention of the legislator was that innocent parents should secure the support of their children. But the uneducated son will be ashamed to produce this argument, since he acknowledges that his father was innocent.

[57] There is, however, another line of argument which may be drawn from the enactment that the person condemned for treason should be banished together with his advocate. It seems almost impossible that in one and the same case a son should incur a penalty, both if he appeared in his father's defence and if he did not appear. Further, exiles are outlaws. Therefore the letter of the law cannot conceivably apply to the advocate of the condemned man.

[58] For how can an exile hold any property? The uneducated son raises a doubt as to the interpretation both of the letter and the spirit of the law. Tile eloquent son will cling to the strict letter of tile law, which makes no exception, and will argue that the reason for enacting a penalty against those who fail to appear for their fathers was to prevent their being deterred from the defence of their fathers by the risk of banishment, and he will assert that his brother failed to appear in defence of his innocent father. It may therefore be worth while pointing out that two general questions may arise out of one basis — ²⁸ for we may ask, or

[59] So far all our questions have been derived from two of the persons involved. ²⁹ With regard to the third, this can give rise to no question, as there is no dispute about his portion of the inheritance. Still the time is not yet come to relax our efforts: for so far all the arguments might have been used even if the father had not been recalled from exile. But we must not betake ourselves at once to the obvious point that he was recalled by the agency of the uneducated son. A little ingenuity will lead us to look further a field: for as species comes after genus, so genus precedes 60 species. Let us therefore assume that the father was recalled by someone else. This will give rise to a question of the ratiocinative or syllogistic type, ³⁰ namely whether recall from exile cancels the sentence of the court and is tantamount to the trial never having taken place at all. The uneducated son will therefore attempt to argue that, being entitled to not more than one reward, there was no means by which he could have secured the recall of his kin save by the restoration of his father on the same terms as if he had never been accused, and that this fact carries with it the cancellation of the penalty incurred by his advocate, as though he had never defended his father at all. ³¹

[61] Our next point will be that which first occurred to us, namely the plea that he was recalled by the agency of the uneducated son. At this point we are confronted by the question whether the son who secured his father's restoration is thereby to be regarded in the light of an advocate, since he secured for him precisely what his original advocate demanded for him, and it is not an unreasonable claim to ask that an action should be regarded as equivalent when it is really more than equivalent.

[62] The remaining points turn on questions of equity, for we ask which of the two sons makes the juster claim. This question admits of still further division. The claim of the uneducated son would have been the juster even if both had claimed the whole property. How much more so when one claims only a half and the other the whole to the exclusion of his brother. And then, even after we have dealt with all these points, an appeal to the memory of his father will carry great weight with the judges, more especially as the dispute is about the father's estate. This will give rise to conjecture as to what the intentions of the father were at the time of his dying intestate. This conjecture, however, involves a question of quality, and is employed in the service of a different basis. ³²

[63] As a rule questions of equity are best introduced at the conclusion of a case, since there is nothing to which the judges give more ready hearing. Sometimes, however, the interests of the case demand a change in this order; for example if we regard our case as weak in point of law, it will be well to secure the good-will of the judge by dealing with the question of equity first.

[64] This concludes my general rules on this subject. We will now proceed to consider the several parts of forensic cases, and although I cannot follow them to the ultimate species, ³³ that is to say, I cannot deal with individual suits and controversies, I shall be able to discuss them on general lines in such a way as to show what bases most of them involve. And since the first question naturally is whether an alleged fact has taken place, I will begin with this.