 I now come to the forensic kind of oratory, which presents the utmost variety, but whose duties are no more than two, the bringing and rebooting of charges. Most authorities divide the forensic speech into five parts, the exhortium, the statement of facts, the proof, the refutation, and the peroration. To these some have added the partition into heads, proposition, and digression, the two first of which form part of the proof, for it is obviously necessary to propound what we are going to prove, as well as to conclude. Why then, if proposition is a part of a speech, should not conclusion be also? Partition on the other hand is merely one aspect of arrangement, and arrangement is a part of rhetoric itself, and is equally distributed through every theme of oratory in their whole body, just as our invention and style. Consequently, we must regard partition not as one part of a whole speech, but as a part of each individual question that may be involved. For what question is there in which an orator cannot set forth the order in which he is going to make his points? And this, of course, is the function of partition. But how ridiculous it is to make each question an aspect of proof, but partition, which is an aspect of a question, a part of the whole speech. As for digression, egressio, now more usually styled exquesus, if it lie outside the case, it is merely an accessory or ornament of that portion of the case from which digression is made. For if anything that lies within the case is to be called part of it, why not call argument, comparison, commonplace, pathos, illustration, parts of the case? On the other hand, I disagree with those who, like Aristotle, would remove refutation from the list on the ground that it forms part of the proof, for the proof is constructive and the refutation destructive. Aristotle also introduces a nodrous light novelty in making proposition, not statement of facts, follow the exordium. This however he does, because he regards proposition as the genus, and statement of facts as the species, with the result that he holds that, whereas the former is always and everywhere necessary, the latter may sometimes be dispensed with. It is however necessary to point out, as regards these five parts which I have established, that that which has to be spoken first is not necessarily that which requires our first consideration. But above all, we must consider the nature of the case, the question at issue, and the arguments for and against. Next, we must consider what points are to be made, and what refuted, and then how the facts are to be stated. For the statement of facts is designed to prepare the way for the proofs, and must needs be unprofitable, unless we have first determined what proofs are to be promised in the statement. Finally, we must consider how best to win the judge to take our view. For we cannot be sure, until we have subjected all the parts of the case to careful scrutiny, what sort of impression we wish to make upon the judge. Are we to mollify him or increase his severity, to excite or relax his interest in the case, to render him susceptible to influence or the reverse? I cannot however approve the view of those who think that the exhortium should actually be written last, for though we must collect all our material and determine the proper place for each portion of it, before we begin to speak or write, we must commence with what naturally comes first. No one begins a portrait by painting or modelling the feet, and no art finds its completion at the point where it should begin. Otherwise, what will happen if we have not time to write our speech? Will not the result of such a reversal of the proper order of things be that we shall be caught napping? We must therefore review the subject matter in the order laid down, but write our speech in the order in which we shall deliver it. Chapter 10. Every case 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 inquiry 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 preter alofts 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. Private suits, again, are often tried by one judge who 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 persons, or two persons bring the same suit against one, or several against several, as occasionally occurs in lawsuits about inheritances. Because although a number of parties may be involved, there is still only one suit, unless indeed the different circumstances of the various parties alter the questions at issue. There is, however, said to be a third and different class, the comparative. Comparisons of comparison frequently require to be handled in portions of a cause, as for instance in the centumveral court, 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 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 anticategoria. Others, however, regarded as belonging to the comparative group, to which indeed the common case of reciprocal suits on different grounds bears a strong resemblance. If this letter case should also be called anticategoria, 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 accepted from that class of action. Thus, we determine the basis of each case. Chapter 11. 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 defense, the point for the judge's decision, and the central point, or, as others call it, the foundation of the case. 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 Apollodoras, and many other writers, have given the special name of questions. Theodoras, 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 zetema. The line of defense 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 defense that Clitimnestra killed her husband, Orestes' father. This is called the aetion, or motive. The point for the decision of the judge is known as crinomenon, and in this case is whether it was right that even a guilty mother should be killed by her son. Some have drawn a distinction between aetion and aetia, making aetion mean the cause of the trial, namely the murder of Clitimnestra, aetia, the motive urged in defense, namely the murder of Agamemnon. But there is such lack of agreement over these two words that some make aetia the cause of the trial and aetion the motive of the deed, while others reverse the meanings. If we turn to Latin writers, we find that some have given these causes the name of Inetium, the beginning, and Ratio, the reason, while others give the same name to both. Moreover, cause seems to spring from cause, or as the Greeks say, aetion excitiu, as will be seen from the following. Clitimnestra killed Agamemnon, because he had sacrificed their daughter, and brought home a captive woman as his paramour. The same authors think that there may be several lines of defense to one question. For instance, Orestes may urge that he killed his mother because driven to do so by oracles. But the number of points for the decision of the judge will be the same as the number of alleged motives for the deed. In this case, it will be whether he ought to have obeyed the oracles. But one alleged motive may also, in my opinion, involve several questions and several points for the decision of the judge, as for instance, in the case when the husband caught his wife in adultery and slew her, and later slew the adulterer who had escaped in the marketplace. The motive is but one, he was an adulterer. But there arises questions and points for decision by the judge, whether it was lawful to kill him at that time and at that place. But just as, although there be several questions each with its special basis, the basis of the case is but one, namely that to which all else is referred, even so, the real point for the decision of the judge is, strictly speaking, that on which judgment is given. As for the Sunecon, the central argument as I have mentioned it is called by some, or the foundation as it is called by others, or as Cicero styles it, the strongest argument of the defender and the most relevant to the decision of the judge, some regarded as being the point after which all inquiry ceases, others as the main point for adjudication. The motive of the deed does not arise in all controversial cases. For how can there be a motive for the deed when the deed is denied? But when the motive for the deed does come up for discussion, they deny that the point for the decision of the judge rests on the same ground as the main question at issue, and this view is maintained by Cicero in his retorica and partitiones. For when it has been asserted and denied that a deed was done, the question whether it was done is resolved by conjecture, and the decision of the judge and the main question rest on the same ground, since the first question and the final decision are concerned with the same point. But when it is stated and denied that Orestes was justified in killing his mother, considerations of quality are introduced. The question is whether he was justified in killing her, but this is not yet the point for the decision of the judge. When then does it become so? She killed my father. Yes, but that did not make it your duty to murder your mother. The point for the decision of the judge is whether it was his duty to kill her. As regards the foundation, I will put it in the words of Cicero himself. The foundation is the strongest argument for the defense. As for instance, if Orestes were ready to say that the disposition of his mother towards his father, himself and his sisters, the kingdom, the reputation of the race and the family were such that it was the peculiar duty of her children to punish her. Others again use illustrations such as the following, he who has spent his patrimony is not allowed to address the people. But he spent it on public works. The question is whether everyone that spends his patrimony is to be prohibited while the point for decision is whether he who spent it in such a way is to be prohibited. Or again, take the case of the soldier Erunchius who killed the tribune Lucius for assaulting his honor. The question is whether he was justified in so doing, the line of defense that the murdered man made an assault upon his honor. The point for the decision of the judge, whether it was right that a man should be killed uncondemned or a tribune by a soldier. Some even regard the basis of the question as being different from the basis of the decision. The question as to whether Milo was justified in killing Claudius is one of quality. The point for the decision of the judge, namely whether Claudius lay in wait for Milo, is a matter of conjecture. They also urge that a case is often diverted to the consideration of some matter irrelevant to the question, and that it is on this matter that judgment is given. I strongly disagree. Take the question whether all who have spent their patrimony are to be prohibited from addressing the people. This question must have its point for decision, and therefore the question and the point for decision are not different, but there are more than one question and more than one point for decision in the case. Again, in the case of Milo, it's not the question of fact ultimately referred to the question of quality, for if Claudius lay in wait for Milo, it follows that he was justifiably killed. But when the case is shifted to some other point far removed from the original question, even in this case the question will be found to reside in the point for decision. As regards these questions, Cicero is slightly inconsistent with himself. For in the retorica, as I have already mentioned, he followed Hermagoras. While in the topica, he holds that the crinomenon, or disputed point, is originated by the basis, and in addressing the lawyer Trebecius on this subject, he calls it the point at issue and describes the elements in which it resides as central arguments or foundations of the defense which hold it together and the removal of which cause the whole defense to fall to the ground. But in the partitione soratorii, he gives the name of foundation to that which is advanced against the defense on the ground that the central argument, as it logically comes first, is put forward by the accused and the point for the decision of the judge arises from the question jointly raised by the central argument and the line of defense. To view therefore of those who make the basis the central argument and the point for the decision of the judge identical is at once more concise and nearer to the truth. The central argument they point out is that the removal of which makes the whole case fall to the ground. In this central argument they seem to me to have included both the alleged causes that the restes killed his mother and the clitamnestra killed Agamemnon. The same authorities have likewise always held that the basis and the point for the decision of the judge are in agreement. Any other opinion would have been inconsistent with their general views. But this affectation of subtlety in the invention of technical terms is mere laborious ostentation. I have undertaken the task of discussing them solely that I might not be regarded as having failed to make sufficient inquiry into the subject which I have chosen as my theme. But it is quite unnecessary for an instructor proceeding on less technical lines to destroy the coherence of his teaching by attention to such minute detail. Many, however, suffer from this drawback, more especially Hermagoras, who, although he labors these points with such anxious diligence, was a man of penetrating intellect and, in most respects, deserves our admiration so that even where we must need to blame him we cannot withhold a certain need of praise. But the shorter method, which for that very reason is also by far the most lucid, will not fatigue the learner by leading him through a maze of detail, nor destroy the coherence of his eloquence by breaking it up into a number of minute departments. For he who has a clear view of the main issue of a dispute, and devines the aims which his own side and his opponents intend to follow, and the means they intend to employ, and it is to the intentions of his own side that he must pay special attention, will, without a doubt, be in possession of a knowledge of all the points which I have discussed above. And there is hardly anyone, unless he be a born fool, without the least acquaintance with the practice of speaking, who does not know what is the main issue of a dispute, or as they call it, the cause or central argument, and what is the question between the parties, and the point on which the judge has to decide, these three being identical. For the question is concerned with the matter in dispute, and the decision of the judge is given on the point involved in the question. Still, we do not keep our attention rigidly fixed on such details, but the desire to win praise by any available means, and the sheer delight in speaking, make us wander away from the subject, since there is always richer material for eloquence outside the strict theme of the case, and as much as the points of any given dispute are always few. And there is all the world outside, and in the one case we speak according to our instructions, and the other on the subjects of our own choice. We should teach not so much that it is our duty to discover the question, the central argument, and the point for the decision of the judge, an easy task, as that we should continually keep our attention on our subject, or, if we digress, at least keep looking back to it, lest, in our desire to win applause, we should let our weapons drop from our grasp. The School of Theodoras, as I have said, groups everything together under heads, by which they mean several things. First, they mean the main question, which is to be identified with the basis. Secondly, they mean the other questions dependent on the main question. Thirdly, the proposition and the statement of the proofs. The word is used as we use it when we say, it is the head of the whole business, or, as Menander says, ke fal ayon estin. But generally speaking, anything which has to be proved will be a head of varying degrees of importance. I have now set forth the principles laid down by the writers of textbooks, though I have done so at a greater length than was necessary. I have also explained what are the various parts of forensic causes. My next book, therefore, shall deal with the Exordia. End of Book 3, Chapter 11. End of On the Education of an Orator, Volume 1, by Quintilian, translated by H. E. Butler.