Institutio Oratoria

VI. [*]( This chapter is highly technical and of little interest for the most part to any save professed students of the technique of the ancient schools of rhetoric. Its apparent obscurity will, however, he found to disappear on careful analysis. The one passage of general interest it contains is to be found in the extremely ingenious fictitious theme discussed in sections 96 sqq. ) Since every cause, then, has a certain essential basis [*]( There is no exact English equivalent for status. Basis or ground are perhaps the nearest equivalents. ) on which it rests, before I proceed to set forth how each kind of cause should be handled, I think I

That which I call the basis some style the constitution, others the question, and others again that which may be inferred from the question, while Theodorus calls it the most general head, κεφάλαιον γενικώτατον, to which everything must be referred. These different names, however, all mean the same thing, nor is it of the least importance to students by what special name things are called, as long as the thing itself is perfectly clear.

The Greeks call this essential basis στάσις, a name which they hold was not invented by Hermagoras, but according to some was introduced by Naucrates, the pupil of Isocrates, according to others by Zopyrus of Clazomenae, although Aeschines in his speech against Ctesiphon [*](§ 206.) seems to employ the word, when he asks the jury not to allow Demosthenes to be irrelevant but to keep him to the stasis or basis of the case.

The term seems to be derived from the fact that it is on it that the first collision between the parties to the dispute takes place, or that it forms the basis or standing of the whole case. So much for the origin of the name. Now for its nature. Some have defined the basis as being the first conflict of the causes. The idea is correct, but the expression is faulty.

For the essential basis is not the first conflict, which we may represent by the clauses

You did such and such a thing

I did not do it.

You did it,

I did not,

Did he do it?,

You did this,

I did not do this,

What did he do?

Suppose it should be asserted that sound is the conflict between two bodies, the statement would in my opinion be erroneous. For sound is not the actual conflict, but a result of the conflict. The error is, however, of small importance: for the sense is clear, whatever the expression. But this trivial mistake has given rise to a very serious error in the minds of those who have not understood what was meant: for on reading that the essential basis was the first conflict, they immediately concluded that the basis was always to be taken from the first question, which is a grave mistake.

For every question has its basis, since every question is based on assertion by one party and denial by another. But there are some questions which form an essential part of causes, and it is on these that we have to express an opinion; while others are introduced from without and are, strictly speaking, irrelevant, although they may contribute something of a subsidiary nature to the general contention. It is for this reason that there are said to be several questions in one matter of dispute.

Of these questions it is often the most trivial which occupies the first place. For it is a frequent artifice to drop those points in which we place least confidence, as soon as we have dealt with them; sometimes we make a free gift of them to our

A simple cause, however, although it may be defended in various ways, cannot have more than one point on which a decision has to be given, and consequently the basis of the cause will be that point which the orator sees to be the most important for him to make and on which the judge sees that he must fix all his attention. For it is on this that the cause will stand or fall. On the other hand questions may have more bases than one. [*](See § 21.)

A brief example will show what I mean. When the accused says

Admitting that I did it, I was right to do it,

but I did not do it,

We are right therefore in speaking of the first conflict of causes in contradistinction to the conflict of questions. For instance in the first portion of his speech on behalf of Rabirius Postumus Cicero contends that the action cannot lie against a Roman knight, while in the second he asserts that no money ever came into his client's hands. Still I should say that the basis was to be found in the latter as being the stronger of the two.

Again in the case of Milo I do not consider that the conflict is raised by the opening questions, but only when the orator devotes all his powers to prove that Clodius lay in wait for Milo and was therefore rightly killed. The point on which above all the orator must make up his mind, even although he may be going to

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.

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

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,

The law is against you,

Suppose the accuser to affirm that the accused is guilty of homicide: if the accused denies the charge, it is he who will determine the basis. Or again, if he admits that he has killed a man, but states that the victim was an adulterer and justifiably killed (and we know that the law permits homicide under these circumstances), there is no matter in dispute, unless the accuser has some answer to make. Suppose the accuser does answer however and deny that the victim was guilty of adultery, it will be the accuser that denies, and it is by him that the basis is determined. The basis, then, will originate in the first denial of facts, but that denial is made by the accuser and not the accused.

Again the same question may make the same person either accuser or accused.

He who has exercised the profession of an actor, is under no circumstances to be allowed a seat in the first fourteen rows of the theatre.

The accuser of course affirms that he has exercised the profession of an actor: the accused denies that he has exercised the profession. The question then arises

exercise of the profession of actor.

The view of the majority of writers [*](i.e. that the defendant makes the basis or status. See § 13. ) on this subject will, however, hold good in most cases. Some have evaded these problems by saying that a basis is that which emerges from affirmations and denials, such as

You did it,

I did not do it,

I was justified in doing it.