Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
But we must remember that arrangement is generally dependent on expediency, and that the same question will not always be discussed first by both parties. An example of what I mean, to quote no others, is provided by Demosthenes and Aeschines, who adopt a different order in the trial of Ctesiphon, since the accuser begins by dealing with the legal question involved, in which he thought he had the advantage, whereas the advocate for the defence treats practically every other topic before coming to the question of law, with a view to preparing the judges for a consideration of the legal aspect of the case.
For it will often be expedient for the parties to place different points first; otherwise the pleading would always be determined by the good pleasure of the prosecution. Finally, in a case of mutual accusation, [*](cp. III. x. 4. ) where both parties have to defend themselves before accusing their antagonist, the order of everything must necessarily be different. I shall therefore set forth the method adopted by myself, about which I have never made any mystery: it is the result in part of instruction received from others, in part of my own reasoning.
When engaged in forensic disputes I made it a point to make myself familiar with every circumstance connected with the case. [*](cp iv. iv. 8; IV. ii. 28. ) (In the schools, of course, the facts of the case are definite and limited in number and are moreover set out before we begin to declaim: the Greeks call them themes, which Cicero [*](Top., 21. ) translates by propositions. ) When I
The first point which I set myself to determine (it is easy enough to state, but is still all-important) was what each party desired to establish and then what means he was likely to adopt to that end. My method was as follows. I considered what the prosecutor would say first: his point must either be admitted or controversial: if admitted, no question could arise in this connexion.
I therefore passed to the answer of the defence and considered it from the same standpoint: even there the point was sometimes one that was admitted. It was not until the parties ceased to agree that any question arose. 'fake for example the following case.
You killed a man.
Yes, I killed him.Agreed, I pass to the defence,
which has to produce the motive for the homicide.
It is lawful,lie urges,
to kill an adulterer with his paramour.Another admitted point, for there is no doubt about the law. We must look for a third point where the two parties are at variance.
They were not adulterers,say the prosecution;
They were,say the defence. Here then is the question at issue: there is a doubt as to the facts, and it is therefore a question of conjecure. [*](i.e. a question as to facts. cv. VII. ii. ) Sometimes even the third point may be admitted;