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previous: IV.3‑5 This webpage reproduces a section of Institutio Oratoria by Quintilian 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. If you find a mistake though, please let me know! next: V.10

(Vol. II) Quintilian
Institutio Oratoria

 p155  Book V

Chapters 1‑9

PREFACE

There have been certain writers of no small authority​1 who have held that the sole duty of the orator was to instruct: in their view appeals to the emotions were to be excluded for two reasons, first on the ground that all disturbance of the mind was a fault, and secondly that it was wrong to distract the judge from the truth by exciting his pity, bringing influence to bear, and the like. Further, to seek to charm the audience, when the aim of the orator was merely to win success, was in their opinion not only superfluous for a pleader, but hardly worthy of self-respecting man. 2 The majority however, while admitting that such arts undoubtedly formed part of oratory, held that its special and peculiar task is to make good the case which it maintains and refute that of its opponent. 3 Whichever of these views is correct (for at this point I do not propose to express my own opinion), they will regard this book as serving a very necessary purpose, since it will deal entirely with the points on which they lay such stress, although all that I have already said on the subject of judicial causes is subservient to the same end. 4 For the purpose of the exordium and the statement of facts is merely to prepare the judge for these points, while it would be a work of supererogation to know the bases​2 of cases or to consider the other  p157 points dealt with above,​3 unless we intend to proceed to the consideration of the proof. 5 Finally, of the five parts​4 into which we divided judicial cases, any single one other than the proof may on occasion be dispensed with. But there can be no suit in which the proof is not absolutely necessary. With regard to the rules to be observed in this connexion, we shall, I think, be wisest to follow our previous method of classification and show first what is common to all cases and then proceed to point out those which are peculiar to the several kinds of cases.

1 1 To begin with it may be noted that the division laid down by Aristotle​5 has met with almost universal approval. It is to the effect that there are some proofs adopted by the orator which lie outside the art of speaking, and others which he himself deduces or, if I may use the term, begets out of his case. The former therefore have been styled ἄτεχνοι or inartificial proofs, the latter ἔντεχνοι or artificial. 2 To the first class belong decisions of previous courts, rumours, evidence extracted by torture, documents, oaths, and witnesses, for it is with these that the majority of forensic arguments are concerned. But though in themselves they involve no art, all the powers of eloquence are as a rule required to disparage or refute them. Consequently in my opinion those who would eliminate the whole of this class of proof from their rules of oratory, deserve the strongest condemnation. 3 It is not, however, my intention to embrace all that can be said for or against these views. I do not for instance propose to lay down rules for commonplaces, a task requiring infinite detail, but merely to sketch out the general lines and method  p159 to be followed by the orator. The method once indicated, it is for the individual orator not merely to employ his powers on its application, but on the invention of similar methods as the circumstances of the case may demand. For it is impossible to deal with every kind of case, even if we confine ourselves to those which have actually occurred in the past without considering those which may occur in the future.

2 1 A regards decisions in previous courts, these fall under three heads. First, we have matters on which judgment has been given at some time or other in cases of a similar nature: these are, however, more correctly termed precedents, as for instance where a father's will has been annulled or confirmed in opposition to his sons. Secondly, there are judgments concerned with the case itself; it is from these that the name praeiudicium is derived: as examples I may cite those passed against Oppianicus​6 or by the senate against Milo.​7 Thirdly, there are judgments passed on the actual case, as for example in cases where the accused has been deported,​8 or where renewed application is made for the recognition of an individual as a free man,​9 or in portions of cases tried in the centumviral court which come before two different panels of judges.​10 2 Such previous decisions are as a rule confirmed in two ways: by the authority of those who gave the decision and by the likeness between the two cases. As for their reversal, this can rarely be  p161 obtained by denouncing the judges, unless they have been guilty of obvious error. For each of those who are trying the case wishes the decision given by another to stand, since he too has to give judgment and is reluctant to create a precedent that may recoil upon himself. 3 Consequently, as regards the first two cases, we must, if possible, take refuge in some dissimilarity between the two cases, and two cases are scarcely ever alike in all their details. If, however, such a course is impossible and the case is the same as that on which the previous decision was given, we must complain of the negligence shown in the conduct of the previous case or of the weakness of the parties condemned, or of undue influence employed to corrupt the witnesses, or again of popular prejudice or ignorance which reacted unfavourably against our client; or else we must consider what has occurred since to alter the aspect of the case. 4 If none of these courses can be adopted, it will still be possible to point out that the peculiar circumstances of many trials have led to unjust decisions; hence condemnations such as that of Rutilius​11 and acquittals such as those of Clodius and Catiline. We must also ask the judges to consider the facts of the case on their merits rather than make their verdict the inevitable consequence of a verdict given by others. 5 When, however, we are confronted by decrees of the senate, or ordinances of emperors or magistrates, there is no remedy, unless we can make out that the some difference, however small, between the cases, or that the same persons or persons holding the same powers have made some subsequent enactment reversing the former decision. Failing this, there will be no case for judgment.

 p163  3 1 With regard to rumour and common report, one party will call them the verdict of public opinion and the testimony of the world at large; the other will describe them as vague talk based on no sure authority, to which malignity has given birth and credulity increase, an ill to which even the most innocent of men may be exposed by the deliberate dissemination of falsehood on the part of their enemies. It will be easy for both parties to produce precedents to support their arguments.

4 1 A like situation arises in the case of evidence extracted by torture: one party will style torture an infallible method of discovering the truth, while the other will allege that it also often results in false confessions, since with some their capacity of endurance makes lying an easy thing, while with others weakness makes it a necessity. It is hardly worth my while to say more on the subject, as the speeches both of ancient and modern orators are full of this topic. 2 Individual cases may however involve special considerations in this connexion. For if the point at issue is whether torture should be applied, it will make all the difference who it is who demands or offers it, who it is that is to be subjected to torture, against whom the evidence thus sought will tell, and what is the motive for the demand. If on the other hand torture has already been applied, it will make all the difference who was in charge of the proceedings, who was the victim and what the nature of the torture, whether the confession was credible or consistent, whether the witness stuck to his first statement or changed it under the influence of pain, and whether he made it at the beginning of the torture or only after it had continued some time. The  p165 variety of such questions is as infinite as the variety of actual cases.

5 1 It is also frequently necessary to speak against documents, for it is common knowledge that they are often not merely rebutted, but even attacked as forgeries. But as this implies either fraud or ignorance on the part of the signatories, it is safer and easier to make the charge one of ignorance, because by so doing we reduce the number of the persons accused. 2 But our proceedings as a whole will draw their arguments from the circumstances of the case at issue. For example, it may be incredible that an incident occurred as stated in the documents, or, as more often happens, the evidence of the documents may be overthrown by other proofs which are likewise of an inartificial nature; if, for example, it is alleged that the person, whose interests are prejudiced by the document, or one of the signatories was absent when the document was signed, or deceased before its signature, or if the dates disagree, or events preceding or following the writing of the document are inconsistent with it. Even a simple inspection of a document is often sufficient for the detection of forgery.

6 1 With regard to oaths,​12 parties either offer to take an oath themselves, or refuse to accept the oath of their opponent, demand that their opponent should take an oath or refuse to comply with a similar demand when proffered to themselves. To offer to take an oath unconditionally without demanding that one's opponent should likewise take an oath is as a rule a sign of bad faith. 2 If, however, anyone should take this course, he will defend his action by appealing to the blamelessness of his life  p167 as rendering perjury on his part incredible, or by the solemn nature of the oath, with regard to which he will win all the greater credence, if without the least show of eagerness to take the oath he makes it clear that he does not shrink from so solemn a duty. Or again, if the case is such as to make this possible, he will rely on the trivial nature of the point in dispute to win belief, on the ground that he would not incur the risk of divine displeasure when so little is at stake. Or, finally, he may in addition to the other means which he employs to win his case offer to take an oath as a culminating proof of a clear conscience. 3 The man who refuses to accept his opponent's offer to take an oath, will allege that the inequality of their respective conditions are not the same for both parties and will point out that many persons are not in the least afraid of committing perjury, even philosophers having been found to deny that the gods interfere in human affairs; and further that he who is ready to take an oath without being asked to do so, is really proposing to pass sentence on his own case and to show what an easy and trivial thing he thinks the oath which he offers to take. 4 On the other hand the man who proposes to put his opponent on oath appears to act with moderation, since he is making his adversary a judge in his own case, while he frees the actual judge from the burden of coming to a decision, since the latter would assuredly prefer to rest on another man's oath than on his own. 5 This fact makes the refusal to take an oath all the more difficult, unless indeed the affair in question be of such a nature that it cannot be supposed that the facts are known to the person asked to take the oath. Failing this excuse, there  p169 is only one course open to him: he must say that his opponent is trying to excite a prejudice against him and is endeavouring to give the impression that he has real ground for complaint though he is not in a position to win his case; consequently, though a dishonest man would eagerly have availed himself of the proposal, he prefers to prove the truth of his statements rather than leave a doubt in anyone's mind as to whether he had committed perjury or no. 6 But in my young days advocates grown old in pleading used to lay it down as a rule that we should never be in a hurry to propose that our opponent should take an oath, just as we should never allow him the choice of a judge​13 nor select our judge from among the supporters of the opposite side: for if it is regarded as a disgrace to such a supporter​14 to say anything against his client, it is surely a still worse disgrace that he should do anything that will harm his client's case.

7 1 It is, however, the evidence that gives the greatest trouble to advocates. Evidence may be given either in writing or orally by witnesses present in court. Documentary evidence is easier to dispose of. For it is likely that the deponent was less ashamed of himself in the presence of a small number of witnesses, and his absence from court is attacked as indicating a lack of confidence. If we cannot call the character of the deponent in question, we may attack the witnesses to his signature. 2 Further there is always a certain tacit prejudice against documentary evidence, since no one can be forced to give such evidence save of his own free will, whereby he shows that he harbours unfriendly feelings towards the persons against whom he bears  p171 witness. On the other hand an advocate should be chary of denying that a friend may give true evidence against a friend or an enemy against an enemy, provided they are persons of unimpeachable credit. But the subject admits of copious discussions, from whichever side it be regarded.

3 The task of dealing with the evidence of witnesses present in court is, however, one of great difficulty, and consequently whether defending or impugning them the orator employs a twofold armoury in the shape of a set speech and examination.​15 In set speeches it is usual to begin with observations either on behalf of or against witnesses in general. 4 In so doing we introduce a commonplace, since one side will contend that there can be no stronger proof than that which rests on human knowledge, while the other, in order to detract from their credibility, will enumerate all the methods by which false evidence is usually given. 5 The next procedure is the common practice of making a special attack, which all the same involves impugning the validity of evidence given by large numbers of persons. We know, for instance, that the evidence of entire nations​16 and whole classes of evidence have been disposed of by advocates. For example, in the case of hearsay evidence, it will be urged that those who produce such evidence are not really witnesses, but are merely reporting the words of unsworn persons, while in cases of extortion, those who swear that they paid certain sums to the accused are to be regarded not as witnesses, but as parties to the suit. 6 Sometimes however the advocate will direct his speech against single individuals. Such a form of attack may be found in many speeches, sometimes embedded in  p173 the speech for the defence and sometimes published separately like the speech against the evidence of Vatinius.​17 7 The whole subject, therefore, demands a thorough investigation, as the task which we have in hand is the complete education of an orator. Otherwise the two books written on this subject by Domitius Afer would suffice. I attended his lectures when he was old and I was young, and consequently have the advantage not merely of having read his book, but of having heard most of his views from his own lips. He very justly lays down the rule that in this connexion it is the first duty of an orator to make himself thoroughly acquainted with the case, a remark which of course applies to all portions of a speech. 8 How such knowledge may be acquired I shall explain when I come to the appropriate portion of this work.​18 This knowledge will suggest material for the examination and will supply weapons ready to the speaker's hand: it will also indicate to him the points for which the judge's mind must be prepared in the set speech. For it is by the set speech that the credit of witnesses should be established or demolished, since the effect of evidence on the individual judge depends on the extent to which he has been previously influenced in the direction of believing the witness or the reverse.

9 And since there are two classes of witnesses,​19 those who testify of their own free will and those who are summoned to attend in the public courts of whom the former are available to either party, the latter solely to the accusers, we must distinguish between the duties of the advocate who produces witnesses and the advocate who refutes them.

10 He who produces a voluntary witness is in a  p175 position to know what he is likely to say: consequently the task of examining him would seem to be rendered easier. But even here such cases make a great demand on the acumen and watchfulness of the advocate, who must see that his witness is neither timid, inconsistent nor imprudent. 11 For the opposing counsel have a way of making a witness lose his head or of leading him into some trap; and once a witness trips, he does more harm to his own side than he would have done good, had he retained his composure and presence of mind. The advocate must therefore put his witnesses through their paces thoroughly in private before they appear in court and must test them by a variety of questions such as may well be put to them by his opponent. The result will be that they will not contradict themselves or, if they do make some slip, can be set upon their feet again by a timely question from the advocate who produces them. 12 Still, even in the case of witnesses whose evidence is consistent, we must be on our guard against treachery. For such witnesses are often put up by one's opponent and, after promising to say everything that will help our case, give answers of exactly the opposite character and carry more weight by the admission of facts which tell against us than they would have done had they disproved them. 13 We must therefore discover what motives they have for doing our opponent a hurt, and the fact that they were once his enemies will not suffice our purpose: we must find out whether they have ceased to be ill-disposed to him or whether they desire by means of their evidence to effect a reconciliation with him, in order to assure ourselves that they have not been bribed or repented of  p177 their previous attitude and changed their purpose. Such precautions are necessary even with witnesses who know that what they propose to say is true; but it is still more necessary with those who promise to give false evidence.​a 14 For experience shows that they are more likely to repent of their purpose, their promises are less to be relied on, and, if they do keep their promise, their evidence is easier to refute.

15 Witnesses appearing in away to a subpoena may be divided into two classes: those who desire to harm the accused, and those who do not. The accuser sometimes is aware of their disposition, sometimes unaware. For the moment let us assume that he is aware of their disposition, although I must point out that in either case the utmost skill is required in their examination. 16 For if an advocate is producing a witness who is desirous of harming the accused, he must avoid letting this desire become apparent, and must not at once proceed to question him on the point at issue. On the contrary this point must be approached by a circuitous route in such a manner as to make it seem that the statement which the witness is really desirous of making has been forced from him. Again he should not press the witness too much, for fear he should impair his credit by the glibness with which he answers every question, but should draw from him just so much as may seem reasonable to elicit from a single witness. 17 On the other hand in the case of a witness who is reluctant to tell the truth, the essential for successful examination is to extort the truth against his will. This can only be done by putting questions which have all the appearance of irrelevance. If this be done, he will give replies which he  p179 thinks can do no harm to the party which he favours, and subsequently will be led on from the admissions which he has made to a position which renders it impossible for him to deny the truth of the facts which he is reluctant to state. 18 For just as in a set speech we usually collect detached arguments which in themselves seem innocuous to the accused, but taken together prove the case against him, so we must ask the reluctant witness a number of questions relative to acts antecedent or subsequent to the case, places, dates, persons, etcetera, with a view to luring him into some reply which will force him to make the admissions which we desire or to contradict his previous evidence. 19 If this fails, we must content ourselves with making it clear that he is reluctant to tell what he knows, and lead him with a view to tripping him up on some point or other, even though it be irrelevant to the case; we must also keep him in the witness-box for an unusual length of time, so that by saying everything that can be said and more than is necessary on behalf of the accused, he may be rendered suspect to the judge. Thus he will do the accused no less harm than if he had told the truth against him. 20 But if (to proceed to our second supposition) the advocate does not know what the intentions of the witness may be, he must advance gradually inch by inch and sound him by examination and lead him step by step to the particular reply which it is desired to elicit. 21 But since these witnesses are sometimes so artful that their first replies are designed to meet the wishes of the questioner, in order to win all the greater credit when subsequently they answer in a very different way, it will be the duty of the advocate to dismiss  p181 a suspect witness while he can still do so with advantage.

22 In the case of advocates for the defence examination is in some respects easier, in some more difficult. It is more difficult because it is rarely possible for them to have any previous knowledge of what the witness is likely to say, and easier because, when they come to cross-examine, they know what he has already said. 23 Consequently in view of the uncertainty involved, there is need for a careful inquiry with a view to discovering the character of the witness against the accused and what are his motives for hostility and what its extent: and all such points about the witness should be set forth in advance and disposed of, whether we desire to represent the evidence against the accused as instigated by hatred, envy, bribery or influence. Further, if our opponents bring forward only a small number of witnesses, we must attack them on that head; if on the other hand they produce an excessive number, we must minimise their importance, while if they are powerful, we shall accuse our adversaries of bringing undue influence to bear. 24 It will, however, be still more helpful if we expose the motives which they have for desiring to injure the accused, and these will vary according to the nature of the case and the parties concerned. For the other lines of argument mentioned above are often answered by the employment of commonplaces on similar lines, since the prosecutor, if he produce but few witnesses of inconspicuous rank, can parade the simple honesty of his methods on the ground that he had produced none save those who  p183 are in position to know the real facts, while if he produce a number of distinguished witnesses, it is even easier to commend them to the court. 25 But at times, just as we have to praise individual witnesses, so we may have to demolish them, whether their evidence has been given in documentary form or they have been summoned to appear in person. This was easier and of more frequent occurrence in the days when the examination of the witnesses was not deferred till after the conclusion of the pleading.​20 With regard to what we should say against individual witnesses, no general rules can be laid down: it will depend on the personality of the witness.

26 It remains to consider the technique to be followed in the examination of witnesses. The first essential is to know your witness. For a timid witness may be terrorised, a fool outwitted, an irascible man provoked, and vanity flattered. The shrewd and self-possessed witness, on the other hand, must be dismissed at once as being malicious and obstinate; or refuted, not by cross-examination, but by a brief speech from the counsel for the defence; or may be put out of countenance by some jest, if a favourable opportunity presents itself; or, if his past life admits of criticism, his credit may be overthrown by the scandalous charges which can be brought against him. 27 It has been found advantageous at times when confronted with an honest and respectable witness to refrain from pressing him hard, since it is often the case that those who would have defended themselves manfully against attack are mollified by courtesy. But every question is either concerned with the case itself or with something outside the case. As regards the first type of when counsel for the  p185 defence may, by adopting a method which I have already recommended for the prosecutor,​21 namely by commencing his examination with questions of an apparently irrelevant and innocent character and then by comparing previous with subsequent replies, frequently lead witnesses into such a position that it becomes possible to extort useful admissions from them against their will. 28 The schools, it is true, give no instruction either as to theory or practice in this subject, and skill in examination comes rather from natural talent or practice. If, however, I am asked to point out a model for imitation, I can recommend but one, namely that which may be found in the dialogues of the Socratics and more especially of Plato, in which the questions put are so shrewd that although individually as a rule the answers are perfectly satisfactory to the other side, yet the questioner reaches the conclusion at which he is aiming. 29 Fortune sometimes is so kind that a witness gives an answer involving some inconsistency, while at times (and this is a more frequent occurrence) one witness contradicts another. But acute examination methodically conducted will generally reach the same result which is so often reached by chance. 30 There are also a number of points strictly irrelevant to the case on which questions may be put with advantage. We may for example ask questions about the past life of other witnesses or about the witness' own character, with a view to discovering whether they can be charged with some disgraceful conduct, or degrading occupation, with friendship with the prosecutor or hostility toward the accused, since in replying to such questions they may say something which will help our cause or may be convicted  p187 of falsehood or of a desire to injure the accused. 31 But above all our examination must be circumspect, since a witness will often launch some smart repartee in answering counsel for the defence and thereby win marked favour from the audience in general. Secondly, we must put our questions as far as possible in the language of everyday speech that the witness, who is often an uneducated man, may understand our meaning, or at any rate may have no opportunity of saying that he does not know what we mean, a statement which is apt to prove highly disconcerting to the examiner. 32 I must however express the strongest disapproval of the practice of sending a suborned witness to sit on the benches of the opposing party, in order that on being called into the witness-box from that quarter he may thereby do all the more damage to the case for the accused by speaking against the party with whose adherents he was sitting or, while appearing to help him by his testimony, deliberately giving his evidence in such an extravagant and exaggerated manner, as not only to detract from the credibility of his own statements, but to annul the advantage derived from the evidence of those who were really helpful. I mention this practice not with a view to encourage it, but to secure its avoidance.

Documentary evidence is frequentlyº in conflict with oral. Such a circumstance may be turned to advantage by either side. For one party will rest its case on the fact that the witness is speaking on oath, the other on the unanimity of the signatories.​22 33 Again there is often a conflict between the evidence and the arguments. One party will argue that the witnesses know the facts and are bound by the  p189 sanctity of their oath, while the arguments are nought but ingenious juggling with the facts. The other party will argue that witnesses are procured by influence, fear, money, anger, hatred, friendship, or bribery, whereas arguments are drawn from nature; in giving his assent to the latter the judge is believing the voice of his own reason, in accepting the former he is giving credence to another. 34 Such problems are common to a number of cases, and are and always will be the subject of vehement debate. Sometimes there are witnesses on both sides and the question arises with regard to themselves as to which are the more respectable in character, or with regard to the case, which have given the more credible evidence, or with regard to the parties to the case, which has brought the greater influence to bear on the witnesses. 35 If to this kind of evidence anyone should wish to add evidence of the sort known as supernatural, based on oracles, prophecies and omens, I would remind him that there are two ways in which these may be treated. There is the general method, with regard to which there is an endless dispute between the adherents of the Stoics and the Epicureans, as to whether the world is governed by providence. The other is special and is concerned with particular departments of the art of divination, according as they may happen to affect the question at issue. 36 For the credibility of oracles may be established or destroyed in one way, and that of soothsayers, augurs, diviners and astrologers in another, since the two classes differ entirely in nature. Again the task of establishing or demolishing such evidence as the following will give the orator plenty to do; as for example if certain words have been uttered under  p191 the influence of wine, in sleep or in a fit of madness, or if information has been picked up from the mouths of children, whom the one party will assert to be incapable of invention, while the other will assert that they do not know what they are saying. 37 The following method may not merely be used with great effect, but may even be badly missed when it is not employed. You gave me the money. Who counted it out? Where did this occur and from what source did the money come? You accuse me of poisoning. Where did I buy the poison and from whom? What did I pay for it and whom did I employ to administer it? Who was my accomplice? Practically all these points are discussed by Cicero in dealing with the charge of poisoning in the pro Cluentio.​23 This concludes my observations upon inartificial proofs. I have stated them as briefly as I could.

8 1 The second class of proofs are wholly the work of art and consist of matters specially adapted to produce belief. They are, however, as a rule almost entirely neglected or only very lightly touched on by those who, avoiding arguments as rugged and repulsive things, confine themselves to pleasanter regions and, like those who, as poets tell, were bewitched by tasting a magic herb in the land of the Lotus-eaters or by the song of the Sirens into preferring pleasure to safety, follow the empty semblance of renown and are robbed of that victory which is the aim of eloquence. 2 And yet those other forms of eloquence, which have a more continuous sweep and flow, are employed with a view to assisting and embellishing the agreements and produce the appearance of superinducing a body upon the sinews, on which the whole case rests; thus if it is asserted  p193 that some act has been committed under the influence of anger, fear or desire, we may expatiate at some length on the nature of each of these passions. It is by these same methods that we praise, accuse, exaggerate, attenuate, describe, deter, complain, console or exhort. 3 But such rhetorical devices may be employed in connexion with matters about which there is no doubt or at least which we speak of as admitted facts. Nor would I deny that there is some advantage to be gained by pleasing our audience and a great deal by stirring their emotions. Still, all these devices are more effective, when the judge thinks he has gained a full knowledge of the facts of the case, which we can only give him by argument and by the employment of every other known means of proof.

4 Before, however, I proceed to classify the various species of artificial proof, I must point out that there are certain features common to all kinds of proof. For there is no question which is not concerned either with things or persons, nor can there be any ground for argument save in connexion with matters concerning things or persons, which may be considered either by themselves or with reference to something else; 5 while there can be no proof except such as is derived from things consequent or things opposite, which must be sought for either in the time preceding, contemporaneous with or subsequent to the alleged fact, nor can any single thing be proved save by reference to something else which must be greater, less than or equal to it. 6 As regards arguments, they may be found either in the questions raised by the case, which may be considered by themselves quite apart from any connexion with individual  p195 things or persons, or in the case of itself, when anything is discovered in it which cannot be arrived at by the light of common reason, but is peculiar to the subject on which judgment has to be given. Further, all proofs fall into three classes, necessary, credible, and not impossible. 7 Again there are four forms of proof. First, we may argue that, because one thing is, another thing is not; as It is day and therefore not night. Secondly, we may argue that, because one thing is, another thing is; as The sun is risen, therefore it is day. Thirdly, it may be argued that because one thing is not, another is; as It is not night, therefore it is day. Finally, it may be argued that, because one thing is not, another thing is not; as He is not a reasoning being, therefore he is not a man. These general remarks will suffice by way of introduction and I will now proceed to details.

9 1 Every artificial proof consists either of indications, arguments or examples. I am well aware that many consider indications to form part of the arguments. My reasons for distinguishing them are twofold. In the first place indications as a rule come under the head of inartificial proofs: for a blood-stained garment, a shriek, a dark blotch and the like are all evidence analogous to the documentary or oral evidence and rumours; they are not discovered by the orator, but are given him with the case itself. 2 My second reason was that indications, if indubitable, are not arguments, since they leave no room for question, while arguments are only possible in controversial matters. If on the other hand they are doubtful, they are not arguments, but require arguments to support them.

3 The two first species into which artificial proofs  p197 may be divided are, as I have already said, those which involve a conclusion and those which do not. The former are those which cannot be otherwise and are called τεκμήρια by the Greeks, because they are indications from which there is no getting away. These however seem to me scarcely to come under the rules of art. For where an indication is irrefutable, there can be no dispute as to facts. 4 This happens whenever there can be no doubt that something is being or has been done, or when it is impossible for it to be or have been done. In such cases there can be no dispute as to the fact. This kind of proof may be considered in connexion with past, present or future time. 5 For example, a woman who is delivered of a child must have had intercourse with a man, and the reference is to the past. When there is a high wind at sea, there must be waves, and the reference is to the present. When a man has received a wound in the heart, he is bound to die, and the reference is to the future. Nor again can there be a harvest where no seed has been sown, nor can a man be at Rome when he is at Athens, nor have been wounded by a sword when he has no scar.​b 6 Some have the same force when reversed: a man who breathes is alive, and a man who is alive breathes. Some again cannot be reversed: because he who walks moves it does not follow that he who moves walks. 7 So too a woman, who has not been delivered of a child, may have had intercourse with a man, there may be waves without a high wind, and a man may die without having received a wound in the heart. Similarly seed may be sown without a harvest resulting, a man, who was never at Athens, may  p199 never have been at Rome, and a man who has a scar may not have received a sword-wound.

8 There are other indications or εἰκότα, that is probabilities, as the Greeks call them, which do not involve a necessary conclusion. These may not be sufficient in themselves to remove doubt, but may yet be of the greatest value when taken in conjunction with other indications. 9 The Latin equivalent of the Greek σημεῖον is signum, a sign, though some have called it indicium, an indication, or vestigium, a trace. Such signs or indications enable us to infer that something else has happened; blood for instance may lead us to infer that a murder has taken place. But bloodstains on a garment may be the result of the slaying of a victim at a sacrifice or of bleeding at the nose. Everyone who has a bloodstain on his clothes is not necessary a murderer. 10 But although such an indication may not amount to proof in itself, yet it may be produced as evidence in conjunction with other indications, such for instance as the fact that the man with the bloodstain was the enemy of the murdered man, had threatened him previously or was in the same place with him. Add the indication in question to these, and what was previously only a suspicion may become a certainty. 11 On the other hand there are indications which may be made to serve either party, such as livid spots, swellings which may be regarded as symptoms either of poisoning or of bad health, or a wound in the breast which may be treated as a proof of murder or of suicide. The force of such indications depends on the amount of extraneous support which they receive.

12 Hermagoras would include among such indications as do not involve a necessary conclusion, an  p201 argument such as the following, "Atalanta cannot be a virgin, as she has been roaming the woods in the company of young men." If we accept this view, I fear that we shall come to treat all inferences from a fact as indications. None the less such arguments are in practice treated exactly as if they were indications. 13 Nor do the Areopagites, when they condemned a boy for plucking out the eyes of quails, seem to have had anything else in their mind than the consideration that such conduct was an indication of a perverted character which might prove hurtful to many, if he had been allowed to grow up. So, too, the popularity of Spurius Maelius and Marcus Manlius was regarded as an indication that they were aiming at supreme power. 14 However, I fear that this line of reasoning will carry us too far. For if it is an indication of adultery that a woman bathes with men, the fact that she revels with young men or even an intimate friendship will also be indications of the same offence. Again depilation, a voluptuous gait, or womanish attire may be regarded as indications of effeminacy and unmanliness by anyone who thinks that such symptoms are the result of an immoral character, just as blood is the result of a wound: for anything, that springs from the matter under investigation and comes to our notice, may properly be called an indication. 15 Similarly it is also usual to give the names of signs to frequently observed phenomena, such as prognostics of the weather which we may illustrate by the Vergilian

and

 p203  If these phenomena are caused by the state of the atmosphere, such an appellation is correct enough. 16 For if the moon turns red owing to the wind, her hue is certainly a sign of wind. And if, as the same poet infers,​26 the condensation and rarification of the atmosphere causes that "concert of bird-voices" of which he speaks, we may agree in regarding it as a sign. We may further note that great things are sometimes indicated by trivial signs, witness the Vergilian crow; that trivial events should be indicated by signs of greater importance is of course no matter for wonder.

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The Translator's Notes:

1 cp. Ar. Rhet. I.1.4. Also Quint. IV.V.6.

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2 See III.VI.

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3 III.XI.

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4 III.IX.1; IV.III.15.

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5 Rhet. I.II.2.

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6 pro Cluent. xvii. sqq.

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7 pro Mil. V.

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8 Banished persons who have been accused afresh after their restoration.

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9 When a slave claimed his liberty by assertio through a representative known as assertor, his case was not disposed of once and for all by a first failure, but his claim might be presented anew.

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10 The meaning is not clear. The Latin suggests that portions of a case might be tried by two panels sitting separately, while the case as a whole was tried by the two panels sitting conjointly. The hasta (spear) was the symbol of the centumviral court. cp. XI.I.78.

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11 Publius Rutilius Rufus condemned for extortion while governor of Asia, owing to a conspiracy of the publicans against him. He went into voluntary exile at Mitylene and was highly honoured by the people of Asia. 91 B.C.

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12 An oath might be taken by one of the parties as an alternative to evidence. In court such an oath might be taken only on the proposal of the adversary; the litigant might not swear on his own initiative, although an oath might be taken voluntarily before the case came into court. The matter of the oath rested with the profferer, and the taking of such a proffered oath meant victory for the swearer.

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13 The choice of the single iudex in civil cases rested with the plaintiff, though the defendant had the right to refuse the person proposed.

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14 Not an actual advocate, but a supporter and adviser on points of law.

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15 Interrogatio includes both the examination in chief and cross-examination.

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16 e.g. in cases of extortion, where a whole province might give evidence against the accused.

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17 Vatinius had appeared as a witness against Sestius, who was defended by Cicero.

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18 XII.VIII.

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19 In civil cases evidence was as a rule voluntary; in criminal cases the accuser might subpoena witnesses, while the defence was restricted to voluntary testimony.

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20 It is not clear to what Quintilian refers. There are, it is true, passages in Cicero where the orator speaks of evidence as already given, but the speeches where these references are found are all second pleadings.

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21 Above, § 17, 18.

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22 An over-statement, since in many cases the signatories could only testify that the statement was that actually made by the deponent; with its truth they were not necessarily concerned.

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23 cp. lx.167.

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24 Verg. G. I.431.

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25 ib. I.388.

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26 Verg. G. I.422.

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Thayer's Notes:

a those who promise to give false evidence: an unfortunate turn of phrase in the English translation, but which doesn't seem to be what Quintilian meant to say. From the Latin iis, qui se dicturos, quae falsa sunt, pollicentur (lit.: "those, who promise that they will say [certain things] that are false"), I hope he meant "those who promise to give evidence that turns out to be false"; but if my alternate meaning cannot be extracted from the Latin, this passage is yet another black mark against Quintilian's character, despite all his protestations that an orator is by definition a good man.

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b For example . . . no scar: Notice the very subdued and elegant chiasmus; past, present, and future indications given in that order in the positive, and in the negative Quintilian gives the indications as future, present, and past. There is a sense of playfulness throughout this section which is pretty much what the subject deserves.

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