Institutio Oratoria

Quintilian

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

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

v1-3 p.415

take up various lines of argument in support of his case, is this: what is it that he wishes most to impress upon the mind of the judge? But although this should be the first point for his consideration, it does not follow that it should be the first that he will make in his actual speech.

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.