Excursus 4. Quintilian

The purpose of this excursus is thoroughly rhetorical: to talk the reader into a frame of mind to accept Quintilian as an authority on the role of advocacy in the Roman legal order of his own day as well as the Republican age.

(1) Most of what Quintilian quotes is Republican oratory down to the Ciceronian age. How much of the really old oratory survived to his time, other than what has survived to ours - fragments of Cato and the Gracchi - we do not know: in Cicero’s own day there were still extant, for example, the speeches of Scaurus and his prosecutor Brutus from the trial of 91 BC.^[516] But of oratory contemporary with that of Cicero there was a lot more still extant in Quintilian’s time. He mentions four cases in which the speeches on both sides were still extant:^[517] they included Hortensius’ side as well as Cicero’s in the case of Verres, Tubero’s as well as Cicero’s in the case of Ligarius, and the speeches of Messalla and Servius Sulpicius on opposite sides m the case of Aufidia. In fact, three speeches of Servius Sulpicius were still to be read.^[518] Quintilian remarks also that Cicero’s notebooks, and those of other orators, are still in existence. There even seems to have been a bit more �full-scale’ Cicero, though not as much as one might perhaps have expected: the pro Oppio, pro Vareno,^[519] pro Cornelia, and the �real’ pro Milone.^[520] Speeches by Cicero’s greatest rival, Calvus, were available, particularly his in Vatinium diatribes: �Calvus left 21 libri, including an in Asicium and an in Drusum, which no one now reads’, says the author of the Dialogus (to paraphrase him),^[521] �nor do they read Caesar’s pro Decio Samnite or Brutus the tyrannicide’s pro Deiotaro.

So much for the Ciceronian generation. Of the next it is Asinius Pollio - never one to underrate himself - who seems to have left published speeches that survived. In the Dialogus there is a reference to libri of Asinius and Messalla,^[524] and Quintilian has several references to the defence by Asinius of the heirs of Urbinia and his defences of the younger Scaurus and of Liburnia.^[525] And Quintilian’s fourth case of both sides being extant was Pollio and Cassius Severus for and against Nonius Asprenas.^[526] And notwithstanding all the moans - to which we shall come - about the decline of standards, speeches of a yet younger generation were published and read. Several references occur to defences by Domitius Afer,^[527] of a woman named Cloatilla, for example, and another named Laelia; and in Quintilian’s boyhood, he says, there were published three famous defences of Volusenus Catulus by Afer, by Passienus Crispus and by D. Laelius.^[528] Finally, contemporary with Quintilian, the dreaded Vibius Crispus must be allowed his due as a forensic high-flier. The world thinks of him only as one of the hated pair, Marcellus and Crispus, delatores·, they have made millions by the gift of eloquence, says the Dialogus,^[529] �donee libuit principes fori, nunc principes in Caesaris amicitia’ �leaders of the Bar while it suited them, now leaders in the friendship of Caesar’. In the Institutes of Quintilian (whether or not he is to be convicted of the servility of a courtier) Crispus appears in an unexpected light, �priuatis causis quam publicis melior’ �better in civil than in criminal cases’;^{[530] [531] and it is from his defences that Quintilian draws sententiae\32i In the light of this evidence, and if it be remembered that Tacitus and Pliny, too, had high forensic reputations, it is perverse to declare that advocacy had declined in prestige - even though it was they themselves who declared it.}

(2) Quintilian knew what he was talking about because he, too, was a practising advocate.

â€?Gloria Romanae, Quintiliane, togae’ was, according to some scholars, paid in celebration of his appointment to the publicly-funded chair for a Latin rhetor founded by Vespasian; but, having noted in Chapter II above the use of toga and togatus specifically of advocates, we are not obliged to follow the suggestion, and may take the line to mean - fulsomely, indeed - â€?Star of the Roman Bar’. In the Institutes Quintilian quotes cases he has been involved in: the defence of a woman in a case about fraud and tacit fideicommissum·, the case he pleaded before Queen Berenice; a comic incident in another case he pleaded.^[533] He refers also to a case (without actually saying he was in it) that â€?occurred recently’, about a testator who had made a slip and left a legacy of 1,000 times more than he intended.^[534] He speaks of a general matter that has come up in his patrocinium (his career as a patronus),³²⁸ and says he was regarded as a bit of a specialist, an â€?exposition man’³²⁹ - one can see why. There are published speeches circulating as his, he complains; he repudiates them as containing little that is his: the clerks (notar ii) have published expanded versions of their shorthand notes as a money-making proposition. Only one is genuine, his youthful effort on behalf of Naeuius of Arpinum.³³⁰

For the above reasons, the practical nature of Quintilian’s manual deserves to be taken with every seriousness: it was not written for epideixis or for the armchair. How liberal-minded, fair-minded and modern-sounding he can be is apparent from his early chapters on the education of children; here, insistence needs to be placed on the likelihood not of his bona fides but of his accuracy. Given that, we can draw lessons from what he says about many things: about the rusticity of indices;³³¹ about the importance of knowing your index, whether he is a strict-law man or an equity man;³³² about the status of res iudicata;³³³ about the nature of forensic argument (with which he fills Book VII, carefully marking the points where he refers to something only found in the schools);³³⁴ indeed, about the usus iudiciorum in all its manifestations.

³²⁸ Ibid. VII 2,5.

³²⁹ Ibid. IV 2,86.

³³⁰ Ibid. VII 2,24.

³³¹ Ibid. IV 2,45; X 1,32; XI 1,45; XII 10,53.

³³² Ibid. IV 3,11.

³³³ Ibid. V 2,1.

³³⁴ E.g. VII 4,35-6.

³³⁵ Ibid. VI 2,3-5.

party, so that the client who wins his case through them knows only that his advocate did not let him down; hut when you have to coerce the spirits of the judges and wrench their minds away from the actual contemplation of the truth,^[535] that is a job for a real orator. Your client can’t teach it you; it’s not part of the dossiers of cases. Proofs can, indeed, ensure that the judges think our case is the better: emotion will make them want it to be so - but what people want, they believe, too.’