Quintilian, Institutio Oratoria, Book 5
Harold Edgeworth Butler, Ed.

13. Refitation may be understood in two senses. For the duty of the defence consists wholly in refutation, while whatever is said by our opponents must be rebutted, whether we are speaking for the defence or the prosecution. It is in this sense that refutation is assigned the fourth place¹ in pleadings, but the methods required in either case are identical. For the principles of argument in refutation can only be drawn from the same sources as those used in proof, while topics and thoughts, words and figures will all be on the same lines. [2] As a rule no strong appeal to the emotions is made in refutation.

It is not, however, without reason that, as Cicero so often testifies,² the task of defence has always been considered harder than that of prosecution. In the first place accusation is a simpler task: for the charge is put forward in one definite form, but its refutation may take a number of different forms, since as a rule it is sufficient for the accuser that his charge should be true, whereas counsel for the defence may deny [p. 313] or justify the facts, raise the question of competence,³ make excuses, plead for mercy, soften, extenuate, or divert the charge, express contempt or derision. The task of the accuser is consequently straightforward and, if I may use the phrase, vociferous; but the defence requires a thousand arts and stratagems. [3] Moreover the prosecutor generally produces a speech which he has prepared at home, while the counsel for the defence has frequently to deal with quite unexpected points. The prosecutor brings forward his witnesses, while counsel for the defence has to refute the charge by arguments drawn from the case itself. The prosecutor draws his material from the odium excited by the charges, even though it have no justification, denouncing parricide, sacrilege, or treason, whereas counsel for the defence can only deny them. Consequently quite moderate speakers have proved adequate in prosecution, while no one can be a good counsel for the defence unless he possesses real eloquence. In a word, it is just so much easier to accuse than to defend as it is easier to inflict than to heal a wound.

[4] The nature of the arguments put forward by our opponent and the manner in which he produces them will, however, make an enormous difference to our task. We must therefore first consider what it is to which we have to reply, whether it is part and parcel of the actual case or has been introduced from circumstances lying outside the case. For in the former case we must deny or justify the facts or raise the question of competence: for these are practically the sole methods of defence available in the courts. Pleas for mercy,⁴ [5] which are not in any sense a method of actual defence, can rarely be used, and [p. 315] only before judges who are not limited to some precise form of verdict.⁵ Even those speeches delivered before Gaius Caesar⁶ and the triumvirs on behalf of members of the opposite party, although they do employ such pleas for mercy, also make use of the ordinary methods of defence. For I think you will agree with me that the following passage contains arguments of a strongly defensive character⁷: “What was our object, Tubero, save that we might have the power that Caesar has now” But if, [6] when pleading before the emperor or any other person who has power either to acquit or condemn, it is incumbent on us to urge that, while our client has committed an offence that deserves the death penalty, it is still the duty of a merciful judge to spare him despite his sins, it must be noted in the first place that we have to deal, not with our adversary, but with the judge, and secondly that we shall have to employ the deliberative rather than the forensic style. For we shall urge the judge to fix his desire rather on the glory that is won by clemency than on the pleasure that is given by vengeance. [7] On the other hand, when we are pleading before judges who have to give their verdict in accordance with the prescriptions of law, it would be absurd to give them advice as to how they should deal with a criminal who admits his guilt. Consequently, when it is impossible either to deny the facts or to raise the question of competence, we must attempt to justify the facts as best we can, or else throw up the case. I have pointed out that there are two ways in which a fact can be denied: it can be denied absolutely, or it may be denied that a fact is of the nature alleged. [p. 317] When it is impossible to plead justification or to raise the question of competence,⁸ we must deny the facts, and that not merely when a definition of the facts will serve our case, but even when nothing except an absolute denial is left for us. [8] If witnesses are produced, there is much that may be said to discredit them; if a document is put forward, we may hold forth on the similarity of the handwritings. In any case there can be no worse course than confession of guilt. When denial and justification are both impossible, we must as a last resort base our defence on the legal point of competence. [9] Still, there are some cases in which none of these three courses is possible. “She is accused of adultery on the ground that after a widowhood of twelve months she was delivered of a child.” In this case there is no ground for dispute. Consequently I regard as the height of folly the advice that is given in such cases, that what cannot be defended should be ignored and passed over in silence, at any rate if the point in question is that on which the judge has to give his decision. [10] On the other hand, if the allegation is irrelevant to the actual case and no more than accessory, I should prefer simply to state that it has nothing to do with the question at issue, that it is not worth our attention, and that it has not the importance given to it by our opponent, though in such a case I should be prepared to pardon a policy of ignoring the charge such as I have just mentioned. For a good advocate ought not to be afraid of incurring a trivial censure for negligence, if such apparent negligence is likely to save his client.

[11] We must further consider whether we should [p. 319] attack our opponent's arguments en masse or dispose of them singly. We shall adopt the former course if the arguments are so weak that they can be overthrown simultaneously, or so embarrassing that it would be inexpedient to grapple with them individually. For in such a case we must fight with all the force at our disposal and make a frontal attack. Sometimes, [12] if it is difficult to refute the statements made by our opponents, we may compare our arguments with theirs, at least if by such a procedure it is possible to prove the superiority of our own. On the other hand, those arguments which rely on their cumulative force must be analysed individually, as for example in the case which I cited above: “You were the heir, you were poor and were summoned by your creditors for a large sum: you had offended him and knew that he intended to change his will.” [13] The cumulative force of these arguments is damaging. But if you refute them singly, the flame which derived its strength from the mass of fuel will die down as soon as the material which fed it is separated, just as if we divert a great stream into a number of channels we may cross it where we will. We shall therefore adapt our method of refutation to the exigencies of our case, now dealing with individual arguments and now treating them in bulk. [14] For at times we may include in a single proposition the refutation of an argument which our opponent has constructed of a number of different points. For instance, if the accuser allege that the accused had a number of motives for committing a crime, we may make a general denial of the fact without dealing singly with each alleged motive, because the fact that a man has had a motive for committing a [p. 321] crime does not prove that he has actually committed it. [15] It will however as a rule be expedient for the prosecution to employ massed arguments, and for the accused to refute them in detail.

We must, however, also consider the manner in which we should refute the arguments of our opponent. If his statements be obviously false, it will be sufficient to deny them. This is done by Cicero in the pro Cluentio,⁹ where he denies that the man alleged by the accuser to have fallen dead on the spot after drinking the contents of the cup, died on the same day. [16] Again, it requires no skill to rebut arguments which are obviously contradictory, superfluous or foolish, and consequently I need give no examples nor instructions as to the method to be employed. There is also the type of charge which is known as obscure, where it is alleged that an act was committed in secret without witnesses or any evidence to prove it: this suffers from an inherent weakness, since the fact that our opponent can produce no proof is sufficient for our purpose: the same applies to arguments which are irrelevant to the case. [17] It is, however, sometimes an orator's duty to make it appear that some argument of his opponent is contradictory or irrelevant or incredible or superfluous or really favourable to his own client. Oppius¹⁰ is charged with having embezzled the supplies intended to feed the troops. It is a serious charge, but Cicero shows that it contradicts other charges, since the same accusers also charged Oppius with desiring to corrupt the army by bribes. [18] The accuser of Cornelius offers to produce witnesses to show that he read out the law when tribune¹¹: Cicero makes this argument [p. 323] superHuous by admitting it. Quintus Caecilius demands to be entrusted with the task of accusing Verres on the ground that he had been the latter's quaestor: Cicero actually makes this argument tell in his own favour.¹² [19] As regards other charges, they may all be dealt with by very similar methods. For they may be demolished either by conjecture, when we shall consider whether they are true, by definition, when we shall examine whether they are relevant to the case, by quality, when we shall consider whether they are dishonourable, unfair, scandalous, inhuman, cruel, or deserve any other epithet coming under the head of quality. [20] Such questions have to be considered, not merely in connection with the statement of the charges or the reasons alleged, but with reference to the nature of the case in its entirety. For instance, the question of cruelty is considered with regard to the charge of high treason brought against Rabirius¹³ by Labienus; of inhumanity in the case of Tubero who accused Ligarius when he was an exile and attempted to prevent Caesar from pardoning him; of arrogance as in the case of the charge brought against Oppius¹⁴ on the strength of a letter of Cotta. [21] Similarly, it may be shown that charges are hasty, insidious or vindictive. The strongest argument, however, which can be brought against a charge is that it involves peril to the community or to the judges themselves; we find an example of the former in the pro Tullio,¹⁵ where Cicero says “Who ever laid down such a principle as this, or who could be allowed, without grave peril to the community, to kill a man, just because he asserts that he feared that he himself might be [p. 325] killed by him?” An instance of the latter occurs in the pro Oppio, where Cicero warns the judges at some length not to permit such an action to be brought against the equestrian order.¹⁶ [22] On the other hand there are certain arguments which at times may best be treated with contempt, as being trivial or irrelevant. This course is frequently pursued by Cicero, indeed this affectation of indifference is sometimes carried so far that we trample disdainfully under foot arguments which we should never succeed in refuting by counter-argument.

[23] Since, however, the majority of such arguments are based on similarity, we must make diligent search to discover if any discrepancy is to be found in what is put forward. It is easy to do this where points of law are concerned. For the law was drafted to cover cases quite other than the present, and consequently it is all the easier to show the difference between case and case. As to parallels drawn from dumb animals or inanimate objects, they are easy to make light of. [24] Examples drawn from facts, if damaging to our case, must be treated in various ways: if they are ancient history, we may call them legendary, while if they are undoubted, we may lay stress on their extreme dissimilarity. For it is impossible for two cases to be alike in every detail. For instance, if the case of Ahala,2 by whom Maelius was killed, is quoted to justify Nasica for the slaying of Tiberius Gracchus, we may argue that Maelius was endeavouring to make himself king, while all that Gracchus had done was to bring forward laws in the interest of the people, and that while Ahala was Master of the Horse, Nasica was a private citizen. In the last resort, if all else prove unavailing, we must see if [p. 327] we can show that the action adduced as a parallel was itself unjustifiable. These remarks as to examples apply also to previous decisions in the courts.

[26] With regard to my statement that the manner in which the accuser stated his charges was of importance, I would point out in this connexion that if he has spoken but feebly, we may repeat his actual words; while, if he has used bitter and violent language, we may restate the facts in milder terms, as Cicero does in the pro Cornelio, where he says, “He put his hand to the tablet containing the law”¹⁷: [25] and we may do this in such a way as to defend our client; for instance, if our client is addicted to luxury, we may say, “He has been charged with living in a somewhat too liberal style.” So, too, we may call a mean man thrifty and a slanderous tongue free.¹⁸ [27] But we must never under any circumstances repeat our opponent's charges together with their proofs, nor emphasise any of his points by amplifying them, unless we do so with a view to making light of them, as for instance in the following passage¹⁹: “You have been with the army, he says, and have not set foot in the forum for so many years, and do you now on returning after so long an interval seek to compete for a post of high dignity with those who have made the forum their home?” [28] Again, when we are replying to the accuser we may sometimes set forth the whole charge, as Cicero does in the pro Scauro with reference to the death of Bostar,²⁰ where he virtually parodies the speech of his opponent, or we may take a number of points raised in the course of the accusation and put them together as in the pro Vareno:²¹ “They have asserted that, when he was [p. 329] journeying with Pompulenus through a lonely stretch of country, he fell in with the slaves of Ancharius, that Pompulenus was then killed and Varenus imprisoned on the spot until such time as this man should indicate what he wished to be done with him.” Such a procedure is useful, if the sequence of facts alleged by the prosecution is incredible, and likely to lose its force by restatement. Sometimes, on the other hand, we may destroy the cumulative force of a number of statements by refuting them singly; in fact this is generally the safest course. Sometimes, again, the different portions of our reply will be independent of one another, a case which requires no illustration.

[29] Common arguments²² are readily appropriated, not merely because they can be used by either party, but because they are of greater service to the speaker who is replying; for I shall not scruple to repeat the warning which I have often given already; the speaker who is first to employ such an argument makes it tell against himself. [30] For an argument must needs tell against a speaker if it be one which his opponent can use with effect. “But, you say, it is not probable that a crime of this magnitude was designed by Marcus Cotta. Is it probable then that a crime of this magnitude was attempted by Oppius?” On the other hand it is a task for a real artist to discover inconsistencies, real or apparent, in the speech of his opponent, though such inconsistencies are sometimes evident from the bare facts, as for instance in the case of Caelius,²³ where Clodia asserts on the one hand that she lent Caelius money, which is an indication of great intimacy, and on the other hand that he got poison to murder her, which [p. 331] is a sign of violent hatred. Tubero similarly²⁴ [31] accuses Ligarius of having been in Africa, and complains that Ligarius refused to allow him to land in Africa. At times, however, some ill-advised statement by our opponent will give us an opportunity of demolishing his arguments. This is specially likely to occur with speakers who have a passion for producing impressive thoughts: for the temptation to air their eloquence is such that they take no heed of what they have said already, being absorbed by the topic immediately before them to the detriment of the interests of the case as a whole. [32] What is there likely to tell so heavily against Cluentius as the stigma inflicted by the censors? What can be more damaging than the fact that Egnatius disinherited his son on the ground that lie had been bribed to give a false verdict in the trial in which Cluentius secured the condemnation of Oppianicus? But Cicero²⁵ [33] shows that the two facts tell against one another. “But, Attius, I would urge you to give the closest consideration to the following problem. Which do you desire to carry the greater weight—the judgment of the censors, or of Egnatius? If the latter, you regard the judgment of the censors in other cases as counting for little, since they expelled this same Gnaeus Egnatius, on whose authority you lay such stress, from his place in the senate. On the other hand, if you attach most weight to the judgment of the censors, I must point out that the censors retained the younger Egnatius, whom his father disinherited by an act resembling a censorial decision, in his position as senator, although they had expelled his father.” As regards errors such as the following, [34] the folly [p. 333] shown in their commission is out of all proportion to the skill required to deal with them: I refer to mistakes such as advancing a disputable argument as indisputable, a controversial point as admitted, a point common to a number of cases as peculiar to the case in hand, or the employment of trite, superfluous, or incredible arguments. For careless speakers are liable to commit a host of errors: they will exaggerate a charge which has still got to be proved, will argue about an act when the question is who committed it, will attempt impossibilities, drop an argument as if it were complete, whereas it is scarcely begun, speak of the individual in preference to the case, [35] and attribute personal faults to circumstances, as for instance if a speaker should attack the decemvirate instead of Appius. They will also contradict what is obvious, speak ambiguously, lose sight of the main issue of the case, or give replies which have no relation to the charges made. This latter procedure may, it is true, be occasionally employed when we have a bad case which requires to be supported by arguments drawn from matters foreign to the case. The trial of Verres provides an example; when accused of peculation it was alleged that he had shown courage and energy in his defence of Sicily against the pirates.

[36] The same rules apply to objections which we may have to meet. But there is one point which requires special attention, since in such cases many speakers fall into two very different faults. For some even in the courts will pass by such objections when raised by their opponents as troublesome and vexatious details, and, contenting themselves with the arguments which they have brought ready-made [p. 335] from their study, will speak as if their opponent did not exist. This error is of course far more common in the schools, for there objections are not merely disregarded, but the subjects for declamation are generally framed in such a way that there is nothing to be said on the opposite side. [37] On the other hand there are some who surfer from excess of zeal, and think it their duty to reply to every word and even every trifling reflexion, a task which is at once endless and superfluous. For it is not the case. but the pleader, whom they are refuting. Personally I should always prefer that a speaker should reveal his eloquence in such a way that, if what he says advances his case, the credit will be given to his talent and not to the nature of his case, while if what he says damages his case the blame will attach to the case and not to his powers. [38] Consequently when we come across denunciations such as that directed against Rullus for the obscurity of his language,²⁶ or against Piso for his utter incapacity as a speaker,²⁷ or against Antony²⁸ for his lack of taste and his complete ignorance both of words and things, we shall give then our sanction as reasonable concessions to passion and just resentment, and as useful in stirring up hatred against those whom it is desired to render unpopular. [39] The method of reply to our opponent's counsel should be on different lines. Sometimes however we are justified in attacking, not merely their manner of speaking, but also their character, their appearance, their gait or bearing. Indeed, in his attack on Quintius, Cicero²⁹ does not confine himself to these topics, but even attacks his purple-bordered toga that goes trailing to his heels: for Quintius had caused Cluentius grave [p. 337] embarrassment by his turbulent harangues. [40] Sometimes, in order to dispel the unpopularity excited by bitter criticism, the latter may be disposed of by a jest, as for example Cicero disposes of Triarius. For to the allegation that the pillars destined for the house of Scaurus were carried on waggons through the city streets he replied,³⁰ “I got my pillars from the quarries of Alba, and had them brought in panniers!” Such tactics are more readily allowed against an accuser, for the duties of counsel for the defence sometimes force him to make such personal attacks. [41] On the other hand there is no objection to complaining of the conduct of the advocates on either side, so long as our complaint follows accepted practice and does not overstep the limits imposed by good manners; I refer to complaints such as that our opponents have abridged, obscured or postponed the discussion of some point, or with deliberate cunning have avoided discussing it at all. [42] A change in the tactics of defence is also often selected for censure. For example, Attius³¹ in his speech against Cluentius complains that Cicero insists on the letter of the law, and Aeschines³² in his speech against Ctesiphon complains that Demosthenes refuses to consider the legal aspect of the case.

It is however necessary to issue a special warning to declaimers that they should not put forward objections that can easily be met or assume that their opponent is a fool. As it is, owing to our tendency to think that the subject-matter of our speech may be drawn from our own fancy, florid commonplaces and epigrams designed to bring down the house occur to our minds with the utmost [p. 339] readiness, with the result that we should do well to bear in mind the lines:

A shrewd retort! Could it be otherwise?
A foolish question makes for smart replies.

Origin unknown.

[43] But such a practice will be fatal in the courts, where we have to answer our opponent and not ourselves. It is said that Accius, when asked why he did not turn advocate in view of the extraordinary skill in making apt replies which his tragedies revealed, replied that in his plays the characters said what he himself wanted them to say, whereas in the courts his adversaries would probably say just what he least wanted them to say. [44] It is therefore ridiculous in exercises which prepare the student for the actual courts to consider what answer can be made before ever giving a thought to what the opposing counsel is likely to say. And a good teacher should commend a pupil no less for his skill in thinking out arguments that may be put forward for the opposite side than in discovering arguments to prove his own case. [45] Again, there is another practice which is always permissible in the schools, but rarely in the courts. For when we speak first as claimants in a real case, how can we raise objections, seeing that our opponent has so far said nothing? [46] Still, many fall into this error either because they have acquired the habit in declamation or simply owing to a passion for hearing their own voice, thereby affording fine sport to those who reply: for sometimes the latter will remark sarcastically that they never said anything of the kind and have no intention of saying anything so idiotic, and sometimes that they are grateful for the admirable [p. 341] warnings so kindly given by their opponent: but most often they will say, and this is the strongest line that they can take, that their opponent would never have replied to objections which had never been raised had he not realised that these objections were justified and been driven to admit it by his consciousness of the fact. [47] We may find an example of this in the pro Cluentio³³ of Cicero: “You have frequently asserted that you are informed that I intend to base my defence on the letter of the law. Really! I suppose that my friends have secretly betrayed me, and that there is one among those whom I believe to be my friends who reports my designs to my opponent. Who gave you this information? Who was the traitor? And to whom did I ever reveal my design? No one, I think, is to blame. It must have been the law itself that told you.” But there are some who, [48] not content with raising imaginary objections, develop whole passages on such themes, saying that they know their opponents will say this and will proceed to argue thus and thus. I remember that Vibius Crispus in our own day disposed of this practice very neatly, for he was a humorous fellow with a very pretty wit: “I do not make those objections which you attribute to me,” he said, “for what use would it be to make them twice?” [49] Sometimes however it may be possible to put forward something not unlike such objections, if some point included by our opponent in the depositions which he produces has been discussed among his advocates³⁴: for then we shall be replying to something which they have said and not to an objection which has been invented by ourselves; or again, this will be possible if the case is of such a nature that we [p. 343] are in a position to state certain definite objections which are absolutely essential to our opponent's case: for instance, if stolen goods have been discovered in a house, the accused must of necessity allege either that they were brought there without his knowledge or deposited with him or given to him and we may therefore answer all these points even although they have not been put forward. [50] On the other hand, in the schools we are quite justified in answering both statements and imaginary objections; for by these means we shall train ourselves at one and the same time for speaking either first or second. Unless we do this, we shall have no chance of employing objections, since there is no adversary to whom we can reply.

[51] There is another serious fault into which pleaders fall: the anxious over-elaboration of points. Such a procedure makes his case suspect to the judges, while frequently arguments which, if stated without more ado, would have removed all doubt, lose their force owing to the delay caused by the elaborate preparations made for their introduction, due to the tact that the advocate thinks that they require additional support. Our orator must therefore adopt a confident manner, and should always speak as if he thought his case admirable. This quality, like all other good qualities, is particularly evident in Cicero. [52] For the extraordinary care which he takes gives the impression of confidence and carries such weight when lie speaks that it does not permit us to feel the least doubt and has all the force of genuine proof. Further, the advocate who knows what are the strongest points in his own and his opponent's case will easily be able to decide what points it [p. 345] will be most necessary for him to emphasise or to counter.

[53] As regards order, there is no part of a case which involves less trouble. For, if we are prosecuting, our first duty will be to prove our own case, our second to refute the arguments brought against it. If, on the other hand, we are defending, we must begin by refutation. [54] But from our answers to objections fresh objections will arise, a process which may be carried to some length. The strokes³⁵ of gladiators provide a parallel. If the first stroke was intended to provoke the adversary to strike, the second will lead to the third, while if the challenge be repeated it will lead to the fourth stroke, so that there will be two parries and two attacks. And tile process may be prolonged still further. [55] But refutation also includes that simple form of proof, which I described above,³⁶ based on an appeal to the emotions and mere assertion; for an example see the words of Scaurus which I have already quoted.³⁷ Nay, I am not sure that this form of proof is not actually of more frequent occurrence when something is denied. It is, however, specially important for both parties that they should see where the main issue lies. For it often happens that the points raised in pleading are many, although those on which a decision is given are few.

[56] Such are the elements of the methods of proof and refutation, but they require to be embellished and supported by the powers of the speaker. For although our arguments may be admirably adapted to express what we desire, they will none the less be slight and weak unless the orator makes a special effort to give them life. [57] Consequently the [p. 347] commonplaces on the subject of witnesses, documentary evidence, arguments and the like make a great impression on the minds of the judges, as also do those topics which are peculiar to the case, those I mean in which we praise or blame any action or show that it is just or unjust, or make it seem more or less important or more or less harsh than it really is. Of these topics some are adapted to the comparison of individual arguments, others to the comparison of a number, while others may serve to influence the success or failure of the whole case. [58] Some again prepare the mind of the judge, while others confirm it in opinions already formed. But such preparation or confirmation will sometimes apply to the whole case, sometimes only to particular portions, and must therefore be employed with due regard to circumstances. [59] I am consequently surprised that there should be a violent dispute between the leaders of two opposite schools as to whether such commonplaces should be applied to individual questions (which is the view of Theodorus), or whether the judge should be instructed in the facts before any appeal is made to his feelings (the latter being the view of Apollodorus), as though no middle course were possible and no regard were to be had to the exigencies of the case itself. Those who lay down such rules have no experience of speaking in the actual courts, the result being that text-books composed in the calm leisure of the study are sadly upset by the necessities of forensic strife. [60] For practically all those who have set forth the law of speaking as though it were a profound mystery,³⁸ have tied us down not merely to fixed topics for argument, but to definite [p. 349] rules as to how we should draw our conclusions. [61] propose after making a few preliminary remarks on the subject to give a frank expression of my own views, or in other words to set forth what I perceive to have been the practice of the most distinguished orators.