Institutio Oratoria

When the accusation is simple, we must consider whether to give a single answer to the charge or several. In the former case, we must decide whether the question is one of fact or of law: if it is one of fact, we must deny the fact or justify it: if, on the other hand, it is a question of law, we must decide on what special point the dispute arises and whether the question turns on the letter or the intention of the law.

We shall do this by considering what the law is which gives rise to the dispute, that is to say under what law the court has been constituted. In scholastic themes, for example, the laws are sometimes stated merely with a view to connecting the arguments of the cases. Take the following case:

A father who recognises a son whom he has exposed in infancy, shall only take him back after paying for his keep. A disobedient son may be disinherited.

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A man who took back a son whom he had exposed orders him to marry a wealthy neighbour. The son desires to marry the daughter of the poor man who brought him up.

The law about children who have been exposed affords scope for emotional treatment, while the decision of the court turns on the law of disinheritance. [*]( The first law is strictly irrelevant to the case, but can be employed by the son to stir the jury's emotions. He owes a deep debt of gratitude to his poor foster-father, and his love for his foster-sister is based on life-long acquaintance. The father, on the other hand, will urge that his payment for his son's nurture has discharged the debt due to the poor man and that his son is once more under the patria potestas. The introduction of the first law thus enables the pleader to introduce fresh arguments and is thus said to link up the arguments. ) On the other hand, a question may turn on more laws than one, as in cases of ἀντινομία or contradictory laws. [*](cp. III. vi. 46. and vii. ) It is by consideration of such points as these that we shall be able to determine the point of law out of which the dispute arises.

As an example of complex defence I may quote the pro Rabirio:

If he had killed him, he would have been justified in so doing: but he did not kill him.