Institutio Oratoria

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

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,

The law is against you,

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.

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

exercise of the profession of actor.

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.

But let us see whether this is the basis itself or rather that in which the basis is to be found. Hermagoras calls a basis that which enables the matter in question to be understood and to which the proofs of the parties concerned will also be directed. My own opinion has always been that, whereas there are frequently different bases of questions in connexion with a cause, the basis of the cause itself is its most important point on which the whole matter turns. If anyone prefers to call that the general question or general head of the cause, I shall not quarrel with him, any more than I have done hitherto if he produced a different technical term to express the same thing, although I know that whole volumes have been written on such disputes. I prefer however to call it the basis.

There is the greatest possible disagreement among writers about this as about everything else, but in this case as elsewhere they seem to me to have been misled by a passion for saying something different from their fellow-teachers. As a result there is still no agreement as to the number and names of bases, nor as to which are general and which special.

First there is οὐσία which Plautus calls essence, the only available translation: under this category we inquire whether a thing is. Secondly there is quality, the meaning of which is self-evident. Third comes quantity, which was subdivided by later philosophers as dealing with two questions as to magnitude and number. Next relation, involving questions of competence [*]( See §§ 52, 68 sqq., 84–86, which make the meaning of translatio fairly clear. No exact rendering is satisfactory. Literally it means transference of the charge : the sense is virtually the same as that of exceptio (a plea made by defendant in bar of plaintiff's action). Exception is too unfamiliar and technical a term. Competence, despite its vagueness, is perhaps the least unsatisfactory rendering. ) and comparison. This is followed by when and where. Then come doing, suffering and possessing,

which for example are concerned with a person's being armed or clothed. Lastly comes κεῖσθαι or position, which means to be in a certain position, such for instance as being warm, standing or angry. Of these categories the first four concern bases, the remainder concern only certain topics for argument.

Others make the number of categories to be nine. Person, involving questions concerning the mind, body or external circumstances, which clearly has reference to the means by which we establish conjecture or quality. Time, or χρόνος, from which we get questions such as whether a child is born a slave, if his mother is delivered of him while assigned [*](addicti were not technically servi, though in a virtual condition of servitude, being the bondsmen of their creditors till their debt was paid. ) to her creditors. Place, from which we get such disputes as to whether it is permissible to kill a tyrant in a temple, or whether one who has hidden himself at home can be regarded as an exile.

Then comes time in another sense, called καιρός by the Greeks, by which they refer to a period of time, such as summer or winter;

Cause, under which heading come a large number of disputes, whenever a fact is not denied, but the defence pleads that the act was just and reasonable. τρόπος or manner, which is involved when a thing is said to have been done in one way when it might have been done in another: under this category come cases of such as that of the adulterer who is scourged with thongs or starved to death. [*]( An adulterer caught flagrante delicto might be killed by the husband or beaten. But to starve him to death in cold blood would be illegal. ) Opportunity for action, the meaning of which is too obvious to need explanation or illustration: the Greeks however call it ἔργων ἀφορμαί

These authorities like Aristotle hold that no question can arise which does not come under one of these heads. Some subtract two of them, namely number and opportunity, and substitute for what I have called action, things, or in Greek πράγματα. I have thought it sufficient to notice these doctrines, for fear someone might complain of their omission. Still I do not consider that bases are sufficiently determined by these categories, nor that the latter cover every possible kind of topic, as will be clear to any that read carefully what I have to say on both points. For there will be found to be many topics that are not covered by these categories.

I find it stated in many authors that some rhetoricians only recognise one kind of basis, the con-

Nor does it matter whether one recognises only one kind of basis or none at all, if all causes are of the same nature. Coniectura is derived from conicere

to throw together,

conjecturers.