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This webpage reproduces a section of
Institutio Oratoria


published in Vol. II
of the Loeb Classical Library edition, 1920

The text is in the public domain.

This page has been carefully proofread
and I believe it to be free of errors.
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(Vol. II) Quintilian
Institutio Oratoria

 p501  Book VI

Chapters 4‑5

4 1 With regard to the principles to be observed in forensic debate,​106 it might seem that I should delay such instructions until I had finished dealing with all the details of continuous speaking, since such debates come after the set speeches are done. But since the art of debate turns on invention alone, does not admit of arrangement, has little need for the embellishments of style, and makes no large demand on memory or delivery, I think that it will not be out of place to deal with it here before I proceed to the second of the five parts,​107 since it is  p503 entirely dependent on the first. Other writers have omitted to deal with it on the ground perhaps that they thought the subject had been sufficiently covered by their precepts on other topics. 2 For debate consists in attack and defence, on which enough has already been said, since whatever is useful in a continuous speech for the purpose of proof must necessarily be of service in this brief and discontinuous form of oratory. For we say the same things in debate, though we say them in a different manner, since debate consists of questions and replies, a topic with which we have dealt fairly exhaustively in connexion with the examination of witnesses.​108 3 But since this work is designed on an ample scale and since no one can be called a perfect orator unless he be an expert debater, we must devote a little special attention to this accomplishment as well, which as a matter of fact is not seldom the deciding factor in a forensic victory. 4 For just as the continuous speech is the predominant weapon in general questions of quality (where the inquiry is as to whether an act was right or wrong), and as a rule is adequate to clear up questions of definition and almost all those in which the facts are ascertained or inferred by conjecture​109 from artificial proof,​110 so on the other hand those cases, which are the most frequent of all and depend on proofs which are either entirely inartificial​111 or of a composite character, give rise to the most violent debates; in fact I should say that there is no occasion when the advocate has to come to closer grips with his adversary. 5 For all the strongest points of the argument have to be sharply impressed on the memory of the judge, while we have also to make good all the promises we may  p505 have made in the course of our speech and to refute the lies of our opponents. There is no point of a trial where the judge's attention is keener. And even mediocre speakers have not without some reason acquired the reputation of being good speakers simply by their excellence in debate. 6 Some on the other hand think they have done their duty to their clients by an ostentatious and fatiguing display of elaborate declamation and straightway march out of court attended by an applauding crowd and leave the desperate battle of debate to uneducated performers who often are of but humble origin. 7 As a result in private suits you will generally find that different counsel are employed to plead and to prove the case. If the duties of advocacy are to be thus divided, the latter duty must surely be accounted the more important of the two, and it is a disgrace to oratory that inferior advocates should be regarded as adequate to render the greater service to the litigants. In public cases at any rate the actual pleader is cited by the usher as well as the other advocates.112

8 For debate the chief requisites are a quick and nimble understanding and a shrewd and ready judgment. For there is no time to think; the advocate must speak at once and return the blow almost before it has been dealt by his opponent. Consequently while it is most important for every portion of the case that the advocate should not merely have given a careful study to the whole case, but that he should have it at his fingers' ends, when he comes to the debate it is absolutely necessary that he should possess a thorough acquaintance with all the persons, instruments and circumstances of time and place involved: otherwise he will often be reduced  p507 to silence and forced to give a hurried assent to those who prompt him as to what he should say, suggestions which are often perfectly fatuous owing to excess of zeal on the part of the prompter. As a result it sometimes happens that we are put to the blush by too ready acceptance of the foolish suggestions of another. 9 Moreover, we have to deal with others beside these prompters who speak for our ear alone. Some go so far as to turn the debate into an open brawl. For you may sometimes see several persons shouting angrily at the judge and telling him that the arguments thus suggested are contrary to the truth, and calling his attention to the fact that some point which is prejudicial to the case has been deliberately passed over in silence. 10 Consequently the skilled debater must be able to control his tendency to anger; there is no passion that is a greater enemy to reason, while it often leads an advocate right away from the point and forces him both to use gross and insulting language and to receive it in return; occasionally it will even excite him to such an extent as to attack the judges. Moderation, and sometimes even longsuffering, is the better policy, for the statements of our opponents have not merely to be refuted: they are often best treated with contempt, made light of or held up to ridicule, methods which afford unique opportunity for the display of wit. This injunction, however, applies only so long as the case is conducted with order and decency; if, on the other hand, our opponents adopt turbulent methods we must put on a bold front and resist their impudence with courage. 11 For there are some advocates so brazen-faced that they bluster and bellow at us, interrupt us in the middle of a sentence  p509 and try to throw everything into confusion. While, then, it would be wrong to pay them the compliment of imitation, we must none the less repel their onslaughts with vigour by crushing their insolence and making frequent appeals to the judges or presiding magistrates to insist on the observance of the proper order of speaking. The debater's task is not one that suits a meek temper or excessive modesty, and we are apt to be misled because that which is really weakness is dignified by the name of honesty. 12 But the quality which is the most serviceable in debate is acumen, which while it is not the result of art (for natural gifts cannot be taught), may none the less be improved by art. 13 In this connexion the chief essential is never for a moment to lose sight either of the question at issue or the end which we have in view. If we bear this in mind, we shall never descend to mere brawling nor waste the time allotted to the case by indulging in abuse, while we shall rejoice if our adversary does so.

14 Those who have given a careful study to the arguments that are likely to be produced by their opponents or the replies which may be made by themselves are almost always ready for the fray. There is, however, a further device available which consists in suddenly introducing into the debate arguments which were deliberately concealed in our set speech: it is a procedure which resembles a surprise attack or a sally from an ambush. The occasion for its employment arises when there is some point to which it is difficult to improvise an answer, though it would not be difficult to meet if time were allowed for consideration. For solid and irrefutable  p511 arguments are best produced at once in the actual pleading in order that they may be repeated and treated at greater length. 15 I think I need hardly insist on the necessity for the avoidance in debate of mere violence and noise and such forms of pleasantry as are dear to the uneducated. For unscrupulous violence, although annoying to one's antagonist, makes an unpleasant impression on the judge. It is also bad policy to fight hard for points which you cannot prove. 16 For where defeat is inevitable, it is wisest to yield, since, if there are a number of other points in dispute, we shall find it easier to prove what remains, while if there is only one point at issue, surrender with a good grace will generally secure some mitigation of punishment. For obstinacy in the defence of a suit, more especially after detection, is simply the commission of a fresh fault.

17 While the battle still rages, the task of luring on our adversary when he has once committed himself to error, and of forcing him to commit himself as deeply as possible, even to the extent at times of being puffed up with extravagant hopes of success, requires great prudence and skill. It is, therefore, wise to conceal some of our weapons: our opponents will often press their attack and stake everything on some imagined weakness of our own, and will give fresh weight to our proofs by the instancy with which they demand us to produce them. 18 It may even be expedient to yield ground which the enemy thinks advantageous to himself: for in grasping at the fancied advantage he may be forced to surrender some greater advantage: at times, too, it may serve our purpose to give him a choice between two alternatives, neither of which  p513 he can select without damage to his cause. Such a course is more effective in debate than in a set speech, for the reason that in the latter we reply to ourselves,​113 while in the former our opponent replies, and thereby delivers himself into our hands. 19 It is, above all, the mark of a shrewd debater to perceive what remarks impress the judge and what he rejects: this may often be detected from his looks, and sometimes from some action or utterance. Arguments which help us must be pressed home, while it will be wise to withdraw as gently as possible from such as are of no service. We may take a lesson from doctors who continue or cease to administer remedies according as they note that they are received or rejected by the stomach. 20 Sometimes, if we find difficulty in developing our point, it is desirable to raise another question and to divert the attention of the judge to it if this be feasible. For what can you do, if you are unable to answer an argument, save invent another to which your opponent can give no answer? 21 In most respects the rules to be observed in debate are, as I have said,​114 identical with those for the cross-examination of witnesses, the only difference lying in the fact that the debate is a battle between advocates, whereas cross-examination is a fight between advocate and witness.

To practise the art of debate is, however, far easier. For it is most profitable to agree with a fellow-student on some subject, real or fictitious, and to take different sides, debating it as would be done in the courts. The same may also be done with the simpler class of questions.​115 22 I would further have an advocate realise the order in  p515 which his proofs should be presented to the judge: the method to be followed is the same as in arguments: the strongest should be placed first and last. For those which are presented first dispose the judge to believe us, and those which come last to decide in our favour.

5 1 Having dealt with these points to the best of my ability, I should have had no hesitation in proceeding to discuss arrangement, which is logically the next consideration, did I not fear that, since there are some who include judgment​116 under the head of invention, they might think that I had deliberately omitted all discussion of judgment, although personally I regard it as so inextricably blent with and involved in every portion of this work, that its influence extends even to single sentences or words, and it is no more possible to teach it than it is to instruct the powers of taste and smell. 2 Consequently, all I can do is now and hereafter to show what should be done or avoided in each particular case, with a view thereby to guide the judgment. What use then is it for me to lay down general rules to the effect that we should not attempt impossibilities, that we should avoid whatever contradicts our case or is common to both, and shun all incorrectness or obscurity of style? In all these cases it is common sense that must decide, and common sense cannot be taught.

3 There is no great difference, in my opinion, between judgment and sagacity, except that the former deals with evident facts, while the latter is concerned with hidden facts or such as have not yet been discovered or still remain in doubt. Again judgment is more often than not a matter of  p517 certainty, while sagacity is a form of reasoning from deep-lying premises, which generally weighs and compares a number of arguments and in itself involves both invention and judgment. 4 But here again you must not expect me to lay down any general rules. For sagacity depends on circumstances and will often find its scope in something preceding the pleading of the cause. For instance in the prosecution of Verres Cicero seems to have shown the highest sagacity in preferring to cut down the time available for his speech rather than allow the trial to be postponed to the following year when Quintus Hortensius was to be consul. 5 And again in the actual pleading sagacity holds the first and most important place. For it is the duty of sagacity to decide what we should say and what we should pass by in silence or postpone; whether it is better to deny an act or to defend it, when we should employ an exordium and on what lines it should be designed, whether we should base our plea on law or equity and what is the best order to adopt, while it must also decide on all the nuances of style, and settle whether it is expedient to speak harshly, gently or even with humility. 6 But I have already given advice on all these points as far as each occasion permitted, and I shall continue to do the same in the subsequent portions of this work. In the meantime, however, I will give a few instances to make my meaning clearer, since it is not possible, in my opinion, to do so by laying down general rules. 7 We praise Demosthenes​117 for his sagacity because when he urged a policy of war upon the Athenians after they had met with a series of reverses, he  p519 pointed out that so far their action had been entirely irrational. For they might still make amends for their negligence, whereas, if they had made no mistakes, they would have had no ground for hopes of better success in the future. 8 Again,​118 since he feared to give offence if he taxed the people with lack of energy in defending the liberties of their country, he preferred to praise their ancestors for their courageous policy. Thus he gained a ready hearing, with the natural result that the pride which they felt in the heroic past made them repent of their own degenerate behaviour. 9 If we turn to Cicero, we shall find that one speech alone, the pro Cluentio, will suffice to provide a number of examples. The difficulty is to know what special exhibition of sagacity to admire most in this speech. His opening statement of the case, by which he discredited the mother whose authority pressed so hardly on her son?​119 The fact that he preferred to throw the charge of having bribed the jury back upon his opponents rather than deny it on account of what he calls the notorious infamy of the verdict?​120 Or his recourse, last of all, to the support of the law in spite of the odious nature of the affair, a method by which he would have set the judges against him but for the fact that he had already softened their feelings towards him?​121 Or the skill which he shows in stating that he had adopted this course in spite of the protests of his client?​122 10 What again am I to select as an outstanding instance of his sagacity in the pro Milone? The fact that he refrains from proceeding to his statement of facts until he has cleared the ground by disposing of the previous verdicts against the accused?​123 The manner in which he turns the  p521 odium of the attempted ambush against Clodius, although as a matter of fact the encounter was a pure chance? The way in which he at one and the same time praised the actual deed and showed that it was forced upon his client? Or the skill with which he avoided making Milo plead for consideration and undertook the rôle of suppliant himself?​124 It would be an endless task to quote all the instances of his sagacity, how he discredited Cotta,​125 how he put forward his own case in defence of Ligarius​126 and saved Cornelius​127 by his bold admission of the facts. 11 It is enough, I think, to say that there is nothing not merely in oratory, but in all the tasks of life that is more important than sagacity and that without it all formal instruction is given in vain, while prudence unsupported by learning will accomplish more than learning unsupported by prudence. It is sagacity again that teaches us to adapt our speech to circumstances of time and place and to the persons with whom we are concerned. But since this topic covers a wide field and is intimately connected with eloquence itself, I shall reserve my treatment of it till I come to give instructions on the subject of appropriateness in speaking.128

The Translator's Notes:

106 The altercatio, which followed the set speeches, took the form of a number of brief arguments pro and con.

107 See V.Pr.5.

108 See V.VII.

109 See III.VI.

110 See V.I.

111 See V.I.

112 The allusion is obscure. But Quintilian's point seems to be merely that the pleader is officially regarded as being of at least equal importance with the other advocates.

113 We propound the dilemma and ourselves point out that whichever answer our opponent gives must tell against him.

114 § 2.

115 cp. II.I.9 and V.X.53.

116 See III.III.5 and 6.

117 Phil. i.2.

118 Phil. i.1.

119 vi.17.

120 i.4.

121 lii.143 sqq.

122 lii.144, 148, 149.

123 cp. Quint. III.VI.93.

124 See above i.25 and 27.

125 cp. above V.XIII.30. The reference is to the pro Oppio.

126 See above V.X.93.

127 See above V.XIII.18 and 26.

128 In XI.I. cp. I.V.1.

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