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