XI. As soon as these points are ascertained,
the next step, according to Hermagoras, should be to consider what is
the question at issue, the line
of defence, the point for the judge's
decision and the central point, or, as
others call it, the foundation of the case. sqq., where Quintilian says what he really
thinks of such technicalities. question in its more general sense is taken to mean everything
on which two or more plausible opinions may be advanced.
In forensic subjects however it must be taken in
two senses: first in the sense in which we say that a controversial
matter involves many questions, thereby including all minor questions;
secondly in the sense of the main question on which the case turns. It
is of this, with which the basis originates, that
I am now speaking. We ask whether a thing has been done, what it is that
has been done, and whether it was rightly done.
To these Hermagoras and Apollodorus and many other writers have given
the special name of questions; Theodorus on the
other hand, as I have already said, calls them general
heads, while he designates minor questions or questions
dependent on these general heads as special heads. For it is agreed that question may
spring from question, and species be subdivided into other species.
This main question, then, they call the line of defence is the
method by which an admitted act is defended. I see no reason why I
should not use the same example to illustrate this point that has been
used by practically all my predecessors. Orestes has killed his mother:
the fact is admitted. He pleads that he was justified in so doing: the
basis will be one of quality, the question, whether he was justified in his action,
the line of defence that Clytemnestra killed her
husband, Orestes' father. This is called the motive.
Some have drawn a distinction between initinum, the beginning, and ratio, the
reason, while others give the same name to both.
Moreover cause seems to spring from cause, or as the Greeks say lines of
defence to one question: for instance
Orestes may urge that he killed his mother because driven to do so by
oracles. But the number of points for the decision of
the judge will be the same as the number of alleged motives for the deed: in this case it will be
whether he ought to have obeyed the oracles.
But one alleged motive may also in my opinion
involve several questions and several points for the decision of the
judge, as for instance in the case when the husband caught his wife in
adultery and slew her and later slew the adulterer, who had escaped, in
the market place. The motive is but one:
he was an adulterer.
But there arise as questions and points for
decision by the judge, whether
But just as, although there be several questions,
each with its special basis, the basis of the case is but one, namely that to
which all else is referred, even so the real point for
the decision of the judge is, strictly speaking, that on which
judgment is given.
As for the central argument, as I have mentioned it is
called by some, or the foundation as it is called
by others, or as Cicero De Inv. I. xiv. 19. the strongest argument of the defender and the most
relevant to the decision of the judge, some regard it as being
the point after which all enquiry ceases, others as the main point for
adjudication.
The motive of the deed does not arise in all
controversial cases. For how can there be a motive for the deed, when the deed is denied? But when the motive for the deed does come up for discussion,
they deny that the point for the decision of the
judge rests on the same ground as the main
question at issue, and this view is maintained by Cicero De Inv. I. c.:
Part. Or. xxx. 104. Partitiones.
For when it has been asserted and denied that a deed was done, the
question whether it was done is resolved by conjecture, and the decision of the
judge and the main question rest on the
same ground, since the first question and the final decision are
concerned with the same point. But when it is stated and denied that
Orestes was justified in killing his mother, considerations of quality are introduced: the question is whether he was justified in killing her, but this
is not yet the point for the decision of the
judge. When, then, does it become so? She killed my
father.
Yes, but that did not make it your duty to
murder your mother.
The point for the
decision of the judge is whether it was his duty to kill her.
As regards the foundation, I will put de Inv. l. c. The foundation is the strongest argument for the
defence, as for instance, if Orestes were ready to say that the
disposition of his mother towards his father, himself and his
sisters, the kingdom, the reputation of the race and the family were
such that it was the peculiar duty of her children to punish her.
Others again use illustrations such as the following:— He who has
spent his patrimony, is not allowed to address the
people.
But he spent it on public works.
The
question is whether everyone that spends his
patrimony is to be prohibited, while the point for
decision is whether he who spent it in such a way is to be
prohibited.
Or again take the case of the soldier Arruntius, who killed the tribune
Lusius for assaulting his honour. The question is
whether he was justified in so doing, the line of
defence, that the murdered man made an assault upon his honour,
the point for the decision of the judge,
whether it was right that a man should be killed uncondemned or a
tribune by a soldier.
Some even regard the basis of the question as being different from the basis of the decision. The
question as to whether Milo was justified in
killing Clodius, is one of quality. The point for the decision of the judge, namely
whether Clodius lay in wait for Milo, is a matter for conjecture.
They also urge that a case is often diverted to the consideration of
some matter irrelevant to the question, and that
it is on this matter that judgment is given. I strongly disagree. Take
the question whether all who have spent their patrimony are to be
prohibited from addressing the people. This question must have its point for
decision, and therefore the question and
the point for decision are not different, but
there are more question and more than one point for
decision in the case. Again, in the case of Milo,
is not the question of fact ultimately referred
to the question of quality ? For if Clodius lay
in wait for Milo, it follows that he was justifiably killed. But when
the case is shifted to some other point far removed from the original
question, even in this case the question will be
found to reside in the point for decision.
As regards these questions Cicero is slightly inconsistent with himself.
For in the Rhetorica, as I have already mentioned, he followed
Hermagoras, while in the Topicai
Top. xxv.
95. disputed point is
originated by the basis, and in addressing the
lawyer Trebatius on this subject he calls it the point
at issue, and describes the elements in which it resides as central arguments or
foundations of the defence which hold it together and the removal of
which causes the whole defence to fall to the ground.
But in the Partitiones Oratoriae
foundation to that which is advanced
against the defence, on the ground that the central
argument, as it logically comes first, is put forward by the
accuser, while the line of defence is put forward
by the accused, and the point for the decision of the
judge arises from the question jointly raised by the central argument and the line
of defence. The view therefore of those who make the basis, the central
argument, and the point for the decision of
the judge identical, is at once more concise and nearer to the
truth. The central argument, they point out, is
that the removal of which makes the whole case fall to the ground.
In this central argument they seem to me to have
included both the alleged causes, that basis and the point for the decision of
the judge are in agreement; any other opinion would have been
inconsistent with their general views.