Institutio Oratoria

X. Every cause in which one side attacks and the other defends consists either of one or more controversial questions. In the first case it is called simple, in the second complex. An example of the first is when the subject of enquiry is a theft or an adultery taken by itself. In complex cases the several questions may all be of the same kind, as in cases of extortion, or of different kinds, as when a man is accused at one and the same time of homicide and sacrilege. Such cases no longer arise in the public courts, since the praetor allots the different charges to different courts in accordance with a definite rule; but they still are of frequent occurrence in the Imperial or Senatorial courts, and were frequent in the days when they came up for trial before the people. [*]( In the permanent courts ( quaestiones perpetuae ). There were separate courts for, different offences. In cases brought before the Senate or the Emperor a number of different charges might be dealt with at once. ) Private suits again are often tried by one judge, who may have to determine many different points of law.

There are no other species of forensic causes, not even when one person brings the same suit on the same grounds against two different

There is however said to be a third and different class, the comparative. Questions of comparison frequently require to be handled in portions of a cause, as for instance in the centum viral court, [*]( A civil court specially concerned with questions of inheritance. ) when after other questions have been raised the question is discussed as to which of two claimants is the more deserving of an inheritance. It is rare however for a case to be brought into court on such grounds alone, as in divinations [*](Divinatio is a trial to decide between the claims of two persons to appear as accuser, there being no public prosecutor at Rome. cp. Cicero's Divinatio in Caecilium. ) which take place to determine who the accuser shall be, and occasionally when two informers dispute as to which has earned the reward.

Some again have added a fourth class, namely mutual accusation, which they call ἀντικατηγορία Others, however, regard it as belonging to the comparative group, to which indeed the common case of reciprocal suits on different grounds bears a strong resemblance. If this latter case should also be called ἀντικατηγορία (for it has no special name of its own), we must divide mutual accusation into two classes, in one of which the parties bring the same charge against each other, while in the other they bring different charges. The same division will also apply to claims.

As soon as we are clear as to the kind of cause on which we are engaged, we must then consider whether the act that forms the basis of the charge is denied or defended, or given another name or excepted from that class of action. Thus we determine the basis of each case.

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. [*]( This highly technical chapter will be largely unintelligible to those who have not read chapter vi. Those who have no stomach for such points would do well to skip §§ 1–20; they will however find consolation in § 21 sqq., where Quintilian says what he really thinks of such technicalities. ) The 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 ζήτημα. 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 αἴτιον or motive.