Institutio Oratoria

X. Every cause in which one side attacks and the other defends consists either of one or more controversial questions. In the first case it is called simple, in the second complex. An example of the first is when the subject of enquiry is a theft or an adultery taken by itself. In complex cases the several questions may all be of the same kind, as in cases of extortion, or of different kinds, as when a man is accused at one and the same time of homicide and sacrilege. Such cases no longer arise in the public courts, since the praetor allots the different charges to different courts in accordance with a definite rule; but they still are of frequent occurrence in the Imperial or Senatorial courts, and were frequent in the days when they came up for trial before the people. [*]( In the permanent courts ( quaestiones perpetuae ). There were separate courts for, different offences. In cases brought before the Senate or the Emperor a number of different charges might be dealt with at once. ) Private suits again are often tried by one judge, who may have to determine many different points of law.

There are no other species of forensic causes, not even when one person brings the same suit on the same grounds against two different

There is however said to be a third and different class, the comparative. Questions of comparison frequently require to be handled in portions of a cause, as for instance in the centum viral court, [*]( A civil court specially concerned with questions of inheritance. ) when after other questions have been raised the question is discussed as to which of two claimants is the more deserving of an inheritance. It is rare however for a case to be brought into court on such grounds alone, as in divinations [*](Divinatio is a trial to decide between the claims of two persons to appear as accuser, there being no public prosecutor at Rome. cp. Cicero's Divinatio in Caecilium. ) which take place to determine who the accuser shall be, and occasionally when two informers dispute as to which has earned the reward.

Some again have added a fourth class, namely mutual accusation, which they call ἀντικατηγορία Others, however, regard it as belonging to the comparative group, to which indeed the common case of reciprocal suits on different grounds bears a strong resemblance. If this latter case should also be called ἀντικατηγορία (for it has no special name of its own), we must divide mutual accusation into two classes, in one of which the parties bring the same charge against each other, while in the other they bring different charges. The same division will also apply to claims.

As soon as we are clear as to the kind of cause on which we are engaged, we must then consider whether the act that forms the basis of the charge is denied or defended, or given another name or excepted from that class of action. Thus we determine the basis of each case.

XI. As soon as these points are ascertained, the next step, according to Hermagoras, should be to consider what is the question at issue, the line of defence, the point for the judge's decision and the central point, or, as others call it, the foundation of the case. [*]( This highly technical chapter will be largely unintelligible to those who have not read chapter vi. Those who have no stomach for such points would do well to skip §§ 1–20; they will however find consolation in § 21 sqq., where Quintilian says what he really thinks of such technicalities. ) The question in its more general sense is taken to mean everything on which two or more plausible opinions may be advanced.

In forensic subjects however it must be taken in two senses: first in the sense in which we say that a controversial matter involves many questions, thereby including all minor questions; secondly in the sense of the main question on which the case turns. It is of this, with which the basis originates, that I am now speaking. We ask whether a thing has been done, what it is that has been done, and whether it was rightly done.

To these Hermagoras and Apollodorus and many other writers have given the special name of questions; Theodorus on the other hand, as I have already said, calls them general heads, while he designates minor questions or questions dependent on these general heads as special heads. For it is agreed that question may spring from question, and species be subdivided into other species.

This main question, then, they call the ζήτημα. The line of defence is the method by which an admitted act is defended. I see no reason why I should not use the same example to illustrate this point that has been used by practically all my predecessors. Orestes has killed his mother: the fact is admitted. He pleads that he was justified in so doing: the basis will be one of quality, the question, whether he was justified in his action, the line of defence that Clytemnestra killed her husband, Orestes' father. This is called the αἴτιον or motive.

Some have drawn a distinction between αἴτιον and αἰτίαν making αἴτιον mean the cause of the trial, namely the murder of Clytemnestra, αἰτία the motive urged in defence, namely the murder of Agamemnon. But there is such lack of agreement over these two words, that some make αἰτία the cause of the trial and αἴτιον the motive of the deed, while others reverse the meanings. If we turn to Latin writers we find that some have given these causes the names of initinum, the beginning, and ratio, the reason, while others give the same name to both.

Moreover cause seems to spring from cause, or as the Greeks say αἴτιον ἐξ αἰτίον as will be seen from the following:— Clytemnestra killed Agamemnon, because he had sacrificed their daughter and brought home a captive woman as his paramour. The same authors think that there may be several lines of defence to one question: for instance Orestes may urge that he killed his mother because driven to do so by oracles. But the number of points for the decision of the judge will be the same as the number of alleged motives for the deed: in this case it will be whether he ought to have obeyed the oracles.

But one alleged motive may also in my opinion involve several questions and several points for the decision of the judge, as for instance in the case when the husband caught his wife in adultery and slew her and later slew the adulterer, who had escaped, in the market place. The motive is but one:

he was an adulterer.

But just as, although there be several questions, each with its special basis, the basis of the case is but one, namely that to which all else is referred, even so the real point for the decision of the judge is, strictly speaking, that on which judgment is given.

As for the σύνεχον the central argument, as I have mentioned it is called by some, or the foundation as it is called by others, or as Cicero [*](De Inv. I. xiv. 19. ) styles it the strongest argument of the defender and the most relevant to the decision of the judge, some regard it as being the point after which all enquiry ceases, others as the main point for adjudication.

The motive of the deed does not arise in all controversial cases. For how can there be a motive for the deed, when the deed is denied? But when the motive for the deed does come up for discussion, they deny that the point for the decision of the judge rests on the same ground as the main question at issue, and this view is maintained by Cicero [*](De Inv. I. c.: Part. Or. xxx. 104. ) in his Rhetorica and Partitiones.

For when it has been asserted and denied that a deed was done, the question whether it was done is resolved by conjecture, and the decision of the judge and the main question rest on the same ground, since the first question and the final decision are concerned with the same point. But when it is stated and denied that Orestes was justified in killing his mother, considerations of quality are introduced: the question is whether he was justified in killing her, but this is not yet the point for the decision of the judge. When, then, does it become so?

She killed my father.

Yes, but that did not make it your duty to murder your mother.

As regards the foundation, I will put

The foundation is the strongest argument for the defence, as for instance, if Orestes were ready to say that the disposition of his mother towards his father, himself and his sisters, the kingdom, the reputation of the race and the family were such that it was the peculiar duty of her children to punish her.

Others again use illustrations such as the following:—

He who has spent his patrimony, is not allowed to address the people.

But he spent it on public works.

Or again take the case of the soldier Arruntius, who killed the tribune Lusius for assaulting his honour. The question is whether he was justified in so doing, the line of defence, that the murdered man made an assault upon his honour, the point for the decision of the judge, whether it was right that a man should be killed uncondemned or a tribune by a soldier.

Some even regard the basis of the question as being different from the basis of the decision. The question as to whether Milo was justified in killing Clodius, is one of quality. The point for the decision of the judge, namely whether Clodius lay in wait for Milo, is a matter for conjecture.