Institutio Oratoria

Quintilian

Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.

Others have thought that the basis lay in the first point raised by the other side in its defence. Cicero [*](Top. xxv. 93. ) expresses this view in the following words:—

the argument on which the defence first takes its stand with a view to rebutting the charge.

This involves a further question as to whether the basis can only be determined by the defence. Cornelius Celsus is strongly against this view, and asserts that the basis is derived not from the denial of the charge, but from him who affirms his proposition. Thus if the accused denies that anyone has been killed, the basis will originate with the accuser, because it is the latter who desires to prove: if on the other hand the accused asserts that the homicide was justifiable, the burden of proof has been transferred and the basis will proceed from the accused and be affirmed by him. I do not, however, agree.

For the contrary is nearer to the truth, that there is no point of dispute if the defendant makes no reply, and that consequently the basis originates with the defendant.

But in my opinion the origin of the basis varies and depends on the circumstances of the individual case. For instance in conjectural causes the affirmation may be regarded as determining the basis, since conjecture is employed by the plaintiff rather than the defendant, and consequently some have styled the basis originated by the latter negative. Again in any syllogism [*](i.e. where the law forms the major premise, while the minor premiss is the act which is brought under the law. ) the whole of the reasoning proceeds from him who

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affirms.

But on the other hand he who in such cases [*](Conjectural causes and the syllogism.) denies appears to impose the burden of dealing with such bases upon his opponent. For if he says

I did not do it,

he will force his opponent to make use of con- jecture, and again, if he says

The law is against you,

he will force him to employ the syllogism. Therefore we must admit that a basis can originate in denial. All the same we are left with our previous conclusion that the basis is determined in some cases by the plaintiff, in some by the defendant.