Institutio Oratoria

Quintilian

Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.

Again in the case of Milo I do not consider that the conflict is raised by the opening questions, but only when the orator devotes all his powers to prove that Clodius lay in wait for Milo and was therefore rightly killed. The point on which above all the orator must make up his mind, even although he may be going to

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take up various lines of argument in support of his case, is this: what is it that he wishes most to impress upon the mind of the judge? But although this should be the first point for his consideration, it does not follow that it should be the first that he will make in his actual speech.

Others have thought that the basis lay in the first point raised by the other side in its defence. Cicero [*](Top. xxv. 93. ) expresses this view in the following words:—

the argument on which the defence first takes its stand with a view to rebutting the charge.

This involves a further question as to whether the basis can only be determined by the defence. Cornelius Celsus is strongly against this view, and asserts that the basis is derived not from the denial of the charge, but from him who affirms his proposition. Thus if the accused denies that anyone has been killed, the basis will originate with the accuser, because it is the latter who desires to prove: if on the other hand the accused asserts that the homicide was justifiable, the burden of proof has been transferred and the basis will proceed from the accused and be affirmed by him. I do not, however, agree.

For the contrary is nearer to the truth, that there is no point of dispute if the defendant makes no reply, and that consequently the basis originates with the defendant.

But in my opinion the origin of the basis varies and depends on the circumstances of the individual case. For instance in conjectural causes the affirmation may be regarded as determining the basis, since conjecture is employed by the plaintiff rather than the defendant, and consequently some have styled the basis originated by the latter negative. Again in any syllogism [*](i.e. where the law forms the major premise, while the minor premiss is the act which is brought under the law. ) the whole of the reasoning proceeds from him who

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affirms.

But on the other hand he who in such cases [*](Conjectural causes and the syllogism.) denies appears to impose the burden of dealing with such bases upon his opponent. For if he says

I did not do it,

he will force his opponent to make use of con- jecture, and again, if he says

The law is against you,

he will force him to employ the syllogism. Therefore we must admit that a basis can originate in denial. All the same we are left with our previous conclusion that the basis is determined in some cases by the plaintiff, in some by the defendant.

Suppose the accuser to affirm that the accused is guilty of homicide: if the accused denies the charge, it is he who will determine the basis. Or again, if he admits that he has killed a man, but states that the victim was an adulterer and justifiably killed (and we know that the law permits homicide under these circumstances), there is no matter in dispute, unless the accuser has some answer to make. Suppose the accuser does answer however and deny that the victim was guilty of adultery, it will be the accuser that denies, and it is by him that the basis is determined. The basis, then, will originate in the first denial of facts, but that denial is made by the accuser and not the accused.

Again the same question may make the same person either accuser or accused.

He who has exercised the profession of an actor, is under no circumstances to be allowed a seat in the first fourteen rows of the theatre.

[*]( Reserved for eguites. ) An individual who had performed before the praetor in his private gardens, but had never been presented on the public stage, has taken his seat in one of the fourteen rows.

The accuser of course affirms that he has exercised the profession of an actor: the accused denies that he has exercised the profession. The question then arises

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as to the meaning of the

exercise of the profession of actor.

If he is accused under the law regarding the seats in the theatre, the denial will proceed from the accused; if on the other hand he is turned out of the theatre and demands compensation for assault, the denial will be made by the accuser.

The view of the majority of writers [*](i.e. that the defendant makes the basis or status. See § 13. ) on this subject will, however, hold good in most cases. Some have evaded these problems by saying that a basis is that which emerges from affirmations and denials, such as

You did it,

I did not do it,

I was justified in doing it.