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previous: XII.2‑6 This webpage reproduces a section of Institutio Oratoria by Quintilian published in Vol. IV of the Loeb Classical Library edition, 1920 The text is in the public domain. This text has not yet been proofread. If you find a mistake though, please let me know! next: XII.10

(Vol. IV) Quintilian
Institutio Oratoria

Book XII

Chapters 7‑9

 p419  7 When our orator has developed his strength to such a pitch that it is equal to every kind of conflict in which he may be called upon to bear his part, his first consideration should be to exercise care in the choice of the cases which he proposes to undertake. A good man will undoubtedly prefer defence to prosecution, but he will not have such a rooted objection to the task of accuser as to disregard his duty towards the state or towards individuals and refuse to call any man to render an account of his way of life. For the laws themselves would be powerless without the assistance of advocates equal to the task of supporting them; and to regard it as a sin to demand the punishment of crime is almost equivalent to the sanctioning of crime, while it is certainly contrary to the interest of the good to give the wicked free leave to work their will. 2 Therefore, our orator will not suffer the complaints of our allies, the death of friends or kinsmen, or conspiracies that threaten the common weal go unavenged, while his conduct will be governed not by a passion to secure the punishment of the guilty, but by the  p421 desire to correct vice and reform morals. For fear is the only means of restraining those who cannot be led to better ways by the voice of reason. 3 Consequently, while to devote one's life to the task of accusation, and to be tempted by the hope of reward to bring the guilty to trial is little better than making one's living by highway robbery, none the less to rid one's country of the pests that gnaw its vitals is conduct worthy of comparison with that of heroes, who champion their country's cause in the field of battle. For this reason men who were leaders of the state have not refused to undertake this portion of an orator's duty, and even young men of high rank have been regarded as giving their country a pledge of their conviction by accusing bad citizens, since it was thought that their hatred of evil and their readiness to incur enmity were proofs of their confidence in through rectitude. 4 Such action was taken by Hortensius, the Luculli, Sulpicius, Cicero, Caesar and many others, among them both the Catos, of whom one was actually called the Wise,​34 while if the other is not regarded as wise, I do not know of any that can claim the title after him. On the other hand, this same orator of ours will not defend all and sundry: that haven of safety which his eloquence provides will never be opened to pirates as it is to others, and he will be led to undertake cases mainly by consideration of their nature. 5 However, since one man cannot undertake the cases of all litigants who are not, as many undoubtedly are, dishonest, he will be influenced to some extent by the character of the persons who recommend clients to his protection and also by the character of the litigants themselves, and will allow himself to be moved by  p423 the wishes of all virtuous men; for a good man will naturally have such for his most intimate friends. 6 But he must put away from him two kinds of pretentious display, the one consisting in the officious proffering of his services to the powerful against those of meaner position, and the other, which is even more obtrusive, in deliberately supporting inferior against those of high degree. For a case is not rendered either just or the reverse by the social position of the parties engaged. Nor, again, will a sense of shame deter him from throwing over a case which he has undertaken in the belief that it had justice on its side, but which his study of the facts has shown to be unjust, although before doing so he should give his client his true opinion on the case. 7 For, if we judge aright, there is no greater benefit that we can confer on our clients than this, street we should not cheat them by giving them empty hopes of success. On the other hand, no client that does not take his advocate into his counsel deserves that advocate's assistance, and it is certainly unworthy of our ideal orator that he should wittingly defend injustice. For if he is led to defend what is false by any of the motives which I mentioned above,​35 his own action will still be honourable.

8 It is an open question whether he should never demand a fee for his services. To decide the question at first sight would be the act of a fool. For we all know that by far the most honourable course, and the one which is most in keeping with a liberal education and that temper of minute which we desiderate, is not to sell our services nor to debase the value of such a boon as eloquence, since there are not a few things which come to be regarded as  p425 cheap, merely because they have a price set upon them. 9 This much even the blind can see, as the saying is, and no one who is the possessor of sufficient wealth to satisfy his needs (and that does not imply any great opulence) will seek to secure an income by such methods without laying himself open to the charge of meanness. On the other hand, if his domestic circumstances are such as to require some addition to his income to enable him to meet the necessary demands upon his purse, there is not a philosopher who would forbid him to accept this form of recompense for his services, since collections were made even on behalf of Socrates, and Zeno, Cleanthes and Chrysippus took fees from their pupils. 10 Nor can I see how we can turn a more honest penny than by performance of the most honourable of tasks and by accepting money from those to whom we have rendered the most signal services and who, if they made no return for what we have done for them, would show themselves undeserving to have been defended by us. Nay, it is not only just, but necessary that this should be so, since the duties of advocacy and the bestowal of every minute of our time on the affairs of others deprive us of all other means of making money. 11 But we must none the less observe the happy mean, and it makes no small difference from whom we take payment, what payment we demand, and how long we continue to do so. As for the piratical practice of bargaining and the scandalous traffic of those who proportion their fees to the peril in which their would‑be client stands, such a procedure will be eschewed even by those who are more than half scoundrels, more especially since the advocate who devotes himself  p427 to the defence of good men and worthy causes will have nothing to fear from ingratitude. And even if a client should prove ungrateful, it is better that he should be the sinner and not our orator. 12 To colour, then, the orator will not seek to make more money than is sufficient for his needs, and even if he is poor, he will not regard his payment as a fee, but rather as the expression of the principle that one good turn deserves another, since he will be well aware that he has conferred far more than he receives. For it does not follow that because his services ought not to be sold, they should therefore be unremunerated. Finally, gratitude is primarily the business of the debtor.

8 1 We have next to consider how a case should be studied, since such study is the foundation of oratory. There is no one so destitute of all talent as, after making himself thoroughly familiar with all the facts of his case, to be unable at least to communicate those facts to the judge. 2 But those who devote any serious attention to such study are very few indeed. For, to say nothing of those careless advocates who are quite indifferent as to what the pivot of the whole case may be, provided only there are points which, though irrelevant to the case, will give them the opportunity of declaiming in thunderous tones on the character of persons involved or developing some commonplace, there are some who are so perverted by vanity that, on the oft-repeated pretext that they are occupied by other business, they bid their client come to them on the day preceding the trial or early on the morning of the day itself, and sometimes even boast that they learnt up their case while sitting in court; 3 while others  p429 way of creating an impression of extraordinary talent, and to make it seem that they are quick in the uptake, pretend that they have grasped the facts of the case and understand the situation almost before they have heard what it is, and then after chanting out some long and fluent discourse which has nought to do either with the judge or their client, but awakens the clamorous applause of the audience, they are escorted home through the forum, perspiring at every pore and attended by flocks of enthusiastic friends. 4 Further, I would not even tolerate the affectation of those who insist that their friends, and not themselves, should be instructed in the facts of the case, though this is a less serious evil, if the friends can be relied upon to learn and supply the facts correctly. But who can fight such effective study to the case as the advocate himself? How can the intermediary, the go-between or interpreter, devote himself whole-heartedly to the study of other men's cases, when those who have got to do the actual pleading do not think it worth while to get up their own? 5 On the other hand, it is a most pernicious practice to rest content with a written statement of the case composed either by the litigant who betakes himself to an advocate because he finds that his own powers are not equal to the conduct of his case, or by some member of that class of legal advisers​36 who admit that they are incapable of pleading, and then proceed to take upon themselves the most difficult of all the tasks that confront the pleader. For if a man is capable of judging what should be said, what concealed, what avoided, altered or even invented, why should he not appear as orator himself, since he performs the far more difficult feat of making  p431 an orator? 6 Such persons would not, however, do so much ham if they would only put down all the facts as they occurred. But as it is, they add suggestions of their own, put their own construction on the facts and insert inventions which are far more damaging than the unvarnished truth. And then the advocate as a rule, on receiving the document, regards it as a crime to make any alteration, and keeps to it as faithfully as if it were a theme set for declamation in the schools. The sequel is that they are tripped up and have to learn from their opponents the case which they refused to learn from their own clients. 7 We should therefore above all allow the parties concerned ample time for an interview in a place free from interruption, and should even exhort them to set forth on the spot all the facts in as many words as they may choose to use and allowing them to go back as far as they please. For it is less of a drawback to listen to a number of irrelevant facts than to be left in ignorance of essentials. 8 Moreover, the orator will often detect both the evil and its remedy in facts which the litigant regarded as devoid of all importance, one way or the other. Further, the advocate who has got to plead the case should not put such excessive confidence in his powers of memory as to disdain to jot down what he has heard.

Nor should one hearing be regarded as sufficient. The litigant should be made to repeat his statements at least once, not merely because certain points may have escaped him on the occasion of his first statement, as is extremely likely to happen if, as is often the case, he is a man of no education, but also that we may note whether he sticks to what he originally  p433 said. 9 For a large number of clients lie, and hold forth, not as if they were instructing their advocate in the facts of the case, but as if they were pleading with a judge. Consequently we must never be too ready to believe them, but must test them in every way, try to confused them and draw them out. 10 For just as doctors have to do more than to treat the ailments which meet the eye, and need also to discover those which lie hid, since their patients often conceal the truth, so the advocate must look out for more points than his client discloses to him. After he considers that he has given a sufficiently patient hearing to the latter's statements, he must assume another character and adopt the rôle of his opponent, urging every conceivable objection that a discussion of the kind which we are considering may permit. 11 The client must be subjected to a hostile cross-examination and given no peace: for by enquiring into everything, we shall sometimes come upon the truth where we least expect it.

In fact, the advocate who is the most successful in getting up his case is he who is incredulous. For the client promises everything: the people, he says, will bear witness to the truth of what he says, he can produce documentary evidence at a moment's notice and there are some points which he says his opponent will not deny. 12 It is therefore necessary to look into every document connected with the case, and where the mere sight of them is not sufficient, they must be read through. For very frequently they are either not at all what the client alleged them to be, or contain less, or are mixed up with elements that may damage our case, or prove more than is required and are likely to detract from their credibility just  p435 because they are so extravagant. 13 Further, it will often be found that the thread is broken or the seal tampered with or the signatures unsupported by witnesses. And unless you discover such facts at home, they will take you by surprise in court and trip you up, doing you more harm by forcing you to abandon them than they would have done had they never been promised you. There are also a number of points which the client regards as irrelevant to his case, which the advocate will be able to elicit, provided he go carefully through all the "dwelling-places" of argument which I have already described.​37 14 Now though, for reasons already mentioned, it is most undesirable that he should hunt for and try every single one of those, while actually engaged in pleading his case, it is most necessary in the preliminary study of the case to leave no stone unturned to discover the character of the persons involved, the circumstances of time and place, the customs and documents concerned, and the rest, from which we may not merely deduce the proofs known as artificial, but may also discover which witnesses are most to be feared and the best method of refuting them. For it makes a great difference whether it be envy, hatred or contempt that forms the chief obstacle to the success of the defence, since of these obstacles the first tells most against superiors, the second against equals, and the third against those of low degree.

15 Having thus given a thorough examination to the case and clearly envisaged all those points which will tell for or against his client, the orator must then place himself in the position of a third person, namely, the judge, and imagine that the  p437 case is being pleaded before himself, and assume that the point which would have carried most weight with himself, had he been trying the case, is likely to have the greatest influence with the actual judge. Thus he will rarely be deceived as to the result of the trial, or, if he is, it will be the fault of the judge.

9 1 As regards the points to be observed in the actual pleading, I have dealt with these in every portion of this work, but there still remain a few on which I must touch as being specially appropriate to the present place, since they are concerned not so much with the art of speaking as with the duties of the advocate. Above all it is important that he should never, like so many, be led by a desire to win applause to neglect the interest of the actual case. 2 It is not always the duty of generals in the field to lead their armies through flat and smiling country: it will often be necessary to cross rugged mountain ranges, to storm cities placed on inaccessible cliffs or rendered difficult of access by elaborate fortifications. Similarly oratory will always be glad of the opportunity of manoeuvring in all its freedom and delighting the spectator by the deployment of its full strength for conflict in the open field; 3 but if it is forced to enter the tortuous defiles of the law, or dark places whence the truth has to be dragged forth, it will not go prancing in front of the enemy's lines nor launch its shafts of quivering and passionate epigram of the fashion that is now so popular, but will wage war by means of sap and mine and ambush and all the tactics of secrecy. 4 None of these methods win applause during their actual execution: the reward comes after they have been carried to a successful termination, when even the most ambitious  p439 will reap a richer recompense than they could ever have secured by other means. For so soon as the thunders of applause awakened among their admirers by these affected declamatory displays have died away, the glory of true virtue rises again with renewed splendour, the judges do not conceal who it is has moved them, the well-trained orator wins their belief and oratory receives its only genuine tribute, the praise accorded it when its task is done. 5 The old orators indeed used to conceal their eloquence, a method which is recommended by Marcus Antonius, as a means of securing that the speaker's words should carry conviction and of masking the advocate's real designs. But the truth is that the eloquence of those days was capable of concealment, for it had not yet attained that splendour of diction which makes it impossible to hide its light under a bushel. Therefore artifice and stratagem should be masked, since detection in such cases spells failure. Thus far, and thus only, may eloquence hope to enjoy the advantages of secrecy. 6 But when we come to consider the choice of words, the weight essential to general reflexions and the elegance demanded by figures, we are confronted by elements which must either strike the attention or be condemned to non-existence. But the very fact that they strike the attention is a reason why they should not flaunt themselves obtrusively. And, if we have to make the choice, I should prefer that it should be the cause, and not the orator, to which we award our praise. Nevertheless, the true orator will achieve the distinction of seeming to speak with all the excellence that an excellent case deserves. One thing may be regarded as certain, that no one can  p441 plead worse than he who wins applause despite the disapproval meted out to his case. For the inevitable conclusion is that the applause must have been evoked by something having no connexion with the case. 7 Further, the true orator will not turn up his nose at cases of minor importance on the ground of their being beneath his dignity or as being likely to detract from his reputation because the subject matter does not allow his genius full scope. For the strongest reason for undertaking a case is to be found in our duty towards our clients: nay, we should even desire the suits in which our friends are involved to be as unimportant as possible, and remember that the advocate who gives an adequate presentment to his case, has spoken exceeding well.

8 But there are some who, even although the cases which they have undertaken give but small scope for eloquence, none the less trick it out with matter drawn from without and, if all else fails, fill up the gaps in their case with abuse of their opponents, true if possible, but false if necessary, the sole consideration that weighs with them being that it affords exercise for their talents and is likely to win applause during its delivery. Such conduct seems to me so unworthy of our perfect orator that, in my opinion, he will not even bring true charges against his opponents unless the case demand. 9 For it is a dog's eloquence, as Appius says, to undertake the task of abusing one's opponent,​38 and they who do so should steel themselves in advance to the prospect of being targets for like abuse themselves, since those who adopt this style of pleading are frequently attacked themselves, and there can at any rate be no doubt that the litigant pays dearly for the violence  p443 of his advocate. But such faults are less serious than that which lies deep in the soul itself, making the evil speaker to differ from the evil doer only in respect of opportunity. 10 It is not uncommon for the litigant to demand a base and inhuman gratification of his rancour, such as not a single man among the audience will approve, for it is on revenge rather than on protection that his heart is set. But in this, as in a number of other points, it is the duty of the orator to refuse to comply with his clients' desires. For how can a man with the least degree of gentlemanly feeling consent to make a brutal attack merely because another desires it? 11 And yet there are some who take pleasure in directing their onslaughts against their opponents' counsel as well, a practice which, unless they have deserved such attacks, shows an inhuman disregard of the duties incumbent on the profession, and is not merely useless to the speaker (since he thereby gives his opponent the right to reply in the same strain), but contrary to the interests of his case, since it creates a hostile and antagonistic disposition in the advocates attacked, whose eloquence, however feeble it may be, will be redoubled by resentment at the insults to which they have been subjected. 12 Above all, it involves a complete waste of one of the most valuable of an orator's assets, namely that self-restraint which gives weight and credit to his words, if he debases himself from an honest man into a snarling wrangler, directing all his efforts not to win the goodwill of the judge, but to gratify his client's spite. 13 Often too the attractions of freedom of speech will lure him into a rashness of language perilous not merely to the interests of the case, but to those of the speaker  p445 himself. It was not without good reason that Pericles used to pray that no word might occur to his mind that could give offence to the people. But what he felt with regard to the people, I feel with regard to every audience, since they can cause just as much harm to the orator as the people could ever do to Pericles. For utterances which seemed courageous at the moment of speaking, are called foolish when it is found that they have given offence.

14 In view of the fact that there is commonly a great variety in the aims which pleaders set before themselves and that the diligence shown by some is branded as tedious caution, while the readiness of others is criticised as rashness, I think that this will be an appropriate place to set forth my views as to how the orator may strike the happy men. 15 He will show all the diligence of which he is capable in his pleading. For to plead worse than he might have done, is not merely an indication of negligence, but stamps him as a bad man and a traitor, disloyal to the cause which he has undertaken. Consequently he must refuse to undertake more cases than he feels he can manage. 16 As far as possible he will deliver only what he has written, and, if circumstances permit, only what he has, as Demosthenes says,​39 carved into shape. Such a practice is possible in first hearings and also in subsequent hearings such as are granted in the public courts after an interval of several days. On the other hand, when we have to reply on the spot, it is impossible to prepare everything: in fact for the less ready type of speaker, it may, in the event of his opponents putting forward arguments quite other than those which they were expected to advance, be a positive drawback to have  p447 written anything. 17 For it is only with reluctance that such speakers will under such circumstances consent to abandon what they have written, and throughout their pleading keep looking back and trying to discover whether any portion of their manuscript can be saved from the wreck and interpolated into what they have to improvise. And if they do make such interpolations, the result is a lack of cohesion which is betrayed not merely by the gaping of the seams where the patch has been unskilfully inserted, but by the differences of style. 18 Consequently, the vigour of the eloquence will be hampered and their thought will lack connexion, each of which circumstances reacts unfavourably upon the other, since what is written trammels the mind instead of following its lead. Therefore, in such pleadings we must, as the rustic adage says, "stand on all our feet." 19 For since the case turns on the propounding and refutation of arguments, it is always possible to write out what we propose to advance on our own behalf, and similar preparation is also possible with regard to the refutation of such replies as are absolutely certain to be made by our adversary: for there are times when we have this certainty. Be with regard to all other portions of our speech, the only preparation that is possible in advance consists in a thorough knowledge of our case, while there is a second precaution which may be taken in court, consisting in giving our first attention to our opponent's speech. 20 On the other hand, there is much that may be thought out in advance and we may forearm our mind against all possible emergencies, a course which is far safer than writing, since a train of thought can easily be  p449 abandoned or diverted in a new direction. But whether we have to improvise a reply, or are obliged to speak extempore by some other reason, the orator on whom training, study and practice have conferred the gift of facility, will never regard himself as lost or taken at hopeless disadvantage. 21 He stands armed for battle, ever ready for the fray, and his eloquence will no more fail him in the courts than speech will fail him in domestic affairs and the daily concerns of life: and he will never shirk his burden for fear of failing to find words, provided he has time to study his case: for all other knowledge will always be his at command.

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The Translator's Notes:

34 i.e. Cato the Elder.

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35 XII.I.36.

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36 Advocatus is here used in its original sense. By Quintilian's time it had come also to mean "advocate," and is often so used by him elsewhere.

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37 V.X.20 sqq. i.e. sources from which arguments may be drawn.

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38 A cognitor is one who represents another. The litigant may abuse his opponent, but that does not justify his advocate in doing so.

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39 This passage is our sole authority for the saying.

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