Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
We may carry the process further: either he wished to kill Clodius, who lay in wait for him, or he did not. The safer course is to argue that he did not wish to kill him. It was then the slaves of Milo who did the deed without Milo's orders or knowledge. But this line of defence shows a lack of courage and lessens the weight of our argument that Clodius was rightly killed.
We shall therefore add the words,
As every man would have wished his slaves to do under similar circumstances.[*](pro Mil. x. 29. V. iv. 8. ) This method is all the more useful from the fact that often we can find nothing to say that really pleases us and yet have got to say something. Let us therefore consider every possible point; for thus we shall discover what is the best line for us to pursue, or at any rate what is least bad. Sometimes, as I have already said in the appropriate context, [*](pro Mil. x. 29. V. iv. 8. ) we may make good use of the statement of our opponent, since occasionally it is equally to the purpose of both parties. I am aware that some authors have written thousands of lines to show how we may discover which party ought to speak first. But in the actual
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practice of the courts this is decided either by some brutally rigid formula, or by the character of the suit, or finally by lot.