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 had formed a general idea of these circumstances, I proceeded to consider them quite as much from my opponent's point of view as from my own.

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;

it is granted that they were adulterers. But, says the accuser, you had no right to kill them, for you were an exile or had forfeited your civil rights. The question is now one of law. On the other hand, if when the prosecution says, You killed them, the defence at once replies, I did not, the issue is raised without more delay. If it requires some search to discover where the dispute really begins, we must consider what constitutes the first question. The charge may be simple,

as for example Rabirius killed Saturninus, cp. v. xi. 6. or complex like the following: The offence committed by Lucius Varenus falls under the law of assassination for he procured the murder of Gaius Varenus, the wounding of Gnaeus Varenus and also the murder of Salarius. cp. v. xiii. 38. In the latter case there will be a number of propositions, a statement which also applies to civil suits as well. But in a complex case there may be a number of questions and bases : cp. III. vi. 1 sq. for instance the accused may deny one fact, justify another and plead technical grounds to show cp. III. vi. 23 and 52. that a third fact is not actionable. In such cases the pleader will have to consider what requires refutation and where that refutation should be placed.

As regards the prosecutor, I do not altogether disagree with Celsus, who, though no doubt in so doing he is following the practice of Cicero, insists with some vehemence on the view that the first place should be given to some strong argument, but that the strongest should be reserved to the end, while the weaker arguments should be placed in the middle, since the judge has to be moved at the beginning and forcibly impelled to a decision at the end. But with the defence it is different:

the strongest arguments as a rule require to be disposed of first, for fear that the judge through having his thoughts fixed on those arguments should regard the defence of other points with disfavour. Sometimes, however, this order is subject to alteration; for example if the minor arguments are obviously false and the refutation of the most serious argument a matter of some difficulty, we should attack it last of all, after discrediting the prosecution by demonstrating the falsity of the former, thereby disposing the judges to believe that all their arguments are equally unreliable. We shall, however, require to preface our remarks by explaining why we postpone dealing with the most serious charge, and by promising that we will deal with it at a later stage: otherwise the fact that we do not dispose of it at once may give the impression that we are afraid of it.

Charges brought against the past life of the accused should generally be dealt with first in order that the judge may be well disposed to listen to our defence on that point on which lie has to give his verdict. But Cicero in the pro Vareno postpones his treatment of such charges to the conclusion, being guided not by the general rule, but by the special circumstances of the case.

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. 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. But when we advance a number of points in answer to a single proposition, we must first of all consider everything that can be said on the subject, and then decide which out of these points it is expedient to select and where to put them forward. My views on this subject are not identical with those which I admitted a little while ago § 10. on the subject of propositions and on that of arguments in the section which I devoted to proofs, v. xii. 14. to the effect that we may sometimes begin with the strongest.

For when we are defending, there should always be an increase of force in the treatment of questions and we should proceed from the weaker to the stronger, whether the points we raise are of the same or of a different character.

Questions of law will often arise from one ground of dispute after another, whereas questions of fact are always concerned with one point; This statement amounts to no more than that there may be infinite complication where questions of law are concerned, but questions of fact are simple and there is but one point to be considered, was such and such an act committed? but the order to be followed is the same in both cases. We must, however, deal first with points that differ in character. In such cases the weakest should always be handled first, for the reason that there are occasions when after discussing a question we make a concession or present of it to our opponents: for we cannot pass on to others without dropping those which come first.

This should be done in such a way as to give the impression not that we regard the points as desperate, but that we have deliberately dropped them because we can prove our case without them. Suppose that the agent for a certain person claims the interest on a loan as due under an inheritance. The question may here arise whether such a claim can be made by an agent. See IV. iv. 6. Assume that, after discussing the question,

we drop it or that the argument is refuted. We then raise the question whether the person in whose name the action is brought has the right to employ an agent. Let us yield this point also. cp. III. 6, 8. The case will still admit of our raising the question whether the person in whose name the suit is brought is heir to the person to whom the interest was due and again whether he is sole heir.

Grant these points also and we can still raise the question whether the sum is due at all? On the other hand, no one will be so insane as to drop what he considers his strongest point and pass to others of minor importance. The following case from a scholastic theme is of a similar character. You may not disinherit your adopted son. And if you may disinherit him quâ adopted son, you may not disinherit one who is so brave. And if you may disinherit one who is so brave, you may not disinherit him because he has not obeyed your every command; and if he was bound to obey you in all else, you may not disinherit him on the ground of his choice of a reward; and even if the choice of a reward may give just ground for disinheriting, that is not true of such a choice as he actually made. The adopted son has done some heroic deed, bringing him under the scholastic law vir fortis optet quod uolet, Let a hero choose what reward he will ( cp. v. x. 97). A scandalous choice might give ground for disinheriting him (cp. § 24 below), but the choice in question is not scandalous. Such is the nature of dissimilarity where points of law are concerned. Where, however, the question is one of fact, there may be several points all tending to the same result, of which some may be dropped as not essential to the main issue, as for instance if a man accused of theft should say to his accuser, Prove that you had the property, prove that you lost it, prove that it was stolen, prove that it was stolen by me. The first three can be dropped, but not the last. I used also to employ the following method.

I went back from the ultimate species (which generally contains the vital point of the case) to the first general question or descended from the genus to the ultimate species, cp. v. x. 5, 6. The statement man is an animal is insufficient as a definition, animal being the genus. Man is mortal introduces a species, but one common to other animals. Man is rational introduces the ultima species. applying this method even to deliberative themes.

For example, Numa is deliberating whether to accept the crown offered him by the Romans. First he considers the general question, Ought I to be a king? Then, Ought I to be king in a foreign state? Ought I to be king at Rome? Are the Romans likely to put up with such a king as myself? So too in controversial themes. Suppose a brave man to choose another man's wife as his reward. The ultimate species is found in the question whether lie is allowed to choose another man's wife. The general question is whether he should be given whatever he chooses. Next come questions such as whether he can choose his reward from the property of private individuals, whether he can choose a bride as his reward, and if so, whether he can choose one who is already married.