Institutio Oratoria (Quintilian)

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	Institutio Oratoria Author: Quintilian	Translator: Harold Edgeworth Butler
799	Isocrates in omni genere inesse laudem ac vituperationem existimavit . Nobis et tutissimum est auctores plurimos sequi , et ita videtur ratio dictare .	Isocrates held that praise and blame find a place in every kind of oratory.
800	Est igitur , ut dixi , unum genus , quo laus ac uituperatio continetur , sed est appellatum a parte meliore laudativum ; idem alii demonstrativum vocant . Utrumque nomen ex Graeco creditur fluxisse , nam ἐγκωμιαστικόν aut ἐπιδεικτικόν dicunt .	The safest and most rational course seems to be to follow the authority of the majority. There is, then, as I have said, one kind concerned with praise and blame, which, however, derives its name from the better of its two functions and is called laudatory; others however call it demonstrative. Both names are believed to be derived from the Greek in which the corresponding terms are encomiastic, and epideictic.
801	Sed mihi ἐπιδεικτικόν non tam demonstrationis vim habere quam ostentationis videtur et multum ab illo ἐγκωμιαστικῷ differre ; nam ut continet laudativum in se genus , ita non intra hoc solum consistit .	The term epideictic seems to me however to imply display rather than demonstration, and to have a very different meaning from encomiastic. For although it includes laudatory oratory, it does not confine itself thereto.
802	An quisquam negaverit Panegyricos ἐπιδεικτικούς esse ? Atqui formam suadendi habent et plerumque de utilitatibus Graeciae loquuntur ; ut causarum quidem genera tria sint , sed ea tum in negotiis tum in ostentatione posita . Nisi forte non ex Graeco mutantes demonstrativum vocant , uerum id sequuntur , quod laus ac uituperatio quale sit quidque demonstrat .	Will any one deny the title of epideictic to panegyric? But yet panegyrics are advisory in form and frequently discuss the interests of Greece. We may therefore conclude that, while there are three kinds of oratory, all three devote themselves in part to the matter in land, and in part to display. But it may be that Romans are not borrowing from Greek when they apply the title demonstrative but are merely led to do so because praise and blame demonstrate the nature of the object with which they are concerned.
803	Alterum est deliberativum , tertium iudiciale . Ceterae species in haec tria incident genera , nec invenietur ex his ulla , in qua non laudare ac vituperare , suadere ac dissuadere , intendere quid vel depellere debeamus . Illa quoque sunt communia , conciliare , narrare , docere , augere , minuere , concitandis componendisve adfectibus animos audientium fingere .	The second kind is deliberative, the third forensic oratory. All other species fall under these three genera: you will not find one in which we have not to praise or blame, to advise or dissuade, to drive home or refute a charge, while conciliation, narration, proof, exaggeration, extenuation and the moulding of the minds of the audience by exciting or allaying their passions, are common to all three kind of oratory.
804	Ne iis quidem accesserim , qui laudativam materiam honestorum , deliberatiuam utilium , iudicialem iustorum quaestione contineri putant , celeri magis ac rotunda usi distributione quam vera . Stant enim quodam modo mutuis auxiliis omnia . Nam et in laude iustitia utilitasque tractatur et in consiliis honestas , et raro iudicialem inveneris causam , in cuius non parte aliquid eorum , quae supra diximus , reperiatur .	I cannot even agree with those who hold that laudalory subjects are concerned with the question of what is honourable, deliberative with the question of what is expedient, and forensic with tie question of what is just: the division thus made is easy and neat rather than true: for all three kinds rely on the mutual assistance of the other. For we deal with justice and expediency in punegyric and with honour in (deliberations, while you will rarely find a forensic case, in part of which at any rate something of those questions just mentioned is not to be found.
805	Omnis autem oratio constat aut ex iis , quae significantur , aut et iis , quae significant , id est rebus et verbis . Facultas orandi consummatur natura , arte , exercitatione , cui partem quartam adiiciunt quidam imitationis , quam nos arti subiicimus .	Every speech however consists at once of that which is expressed and that which expresses, that is to say of matter and words. Skill in speaking is perfected by nature, art and practice, to which some add a fourth department, namely imitation, which I however prefer to include under art.
806	Tria sunt item , quae praestare debeat orator ; ut doceat , moveat , delectet . Haec enim clarior divisio quam eorum , qui totum opus in res et in adfectus partiuntur . Non semper autem omnia in eam quae tractabitur materiam cadent . Erunt enim quaedam remotae ab adfectibus , qui ut non ubique habent locum , ita quocunque irruperunt , plurimum valent .	There are also three aims which the orator must always have in view; he must instruct, move and charm his hearers. This is a clearer division than that made by those who divide the task of oratory into that which relates to things and that which concerns the emotions, since both of these will not always be present in the subjects which we shall have to treat. For some themes are far from calling for any appeal to the emotions, which, although room cannot always be found for them, produce a most powerful effect wherever they do succeed in forcing their way.
807	Praestantissimis auctoribus placet alia in rhetorice esse , quae probationem desiderent , alia quae non desiderent , cum quibus ipse consentio . Quidam vero , ut Celsus , de nulla re dicturum oratorem , nisi de qua quaeratur , existimant , cui cum maxima pars scriptorum repugnat tum etiam ipsa partitio ; nisi forte laudare , quae constet esse honesta , et vituperare , quae ex confesso sint turpia , non est oratoris officium .	The best authorities hold that there are some things in oratory which require proof and others which do not, a view with which I agree. Some on the other hand, as for instance Celsus, think that the orator will not speak on any subject unless there is some question involved in it; but the majority of writers on rhetoric are against him, as is also the threefold division of oratory, unless indeed to praise what is allowed to be honourable and to denounce what is admittedly disgraceful are no part of an orator's duty.
808	Illud iam omnes fatentur , esse quaestiones aut in scripto aut in non scripto ; in scripto de iure , in non scripto de re . Illud rationale hoc legale genus Hermagoras atque eum secuti vocant , id est νομικόν et λογικόν .	It is, however, universally agreed that all questions must be concerned either with something that is written or something that is not. Those concerned with what is written are questions of law, those which concern what is not written are questions of fact. Hermagoras calls the latter rational questions, the former legal questions, for so we may translate λογικόν and νομικόν.
809	Idem sentiunt , qui omnem quaestionem ponunt in rebus et in verbis . Item convenit , quaestiones esse aut infinitas aut finitas . Infinitae sunt , quae remotis personis et temporibus et locis ceterisque similibus in utramque partem tractantur , quod Graeci θέσιν dicunt , Cicero propositum , alii quaestiones universales civiles , alii quaestiones philosopho convenientes , Athenaeus partem causae appellat .	Those who hold that every question concerns either things or words, mean much the same. It is also agreed that questions are either definite or indefinite. Indefinite questions are those which may be maintained or impugned without reference to persons, time or place and the like. The Greeks call them theses, Cicero propositions, others general questions relating to civil life, others again questions suited for philosophical discussion, while Athenaeus calls them parts of a cause.
810	Hoc genus Cicero scientia et actione distinguit , ut sit scientiae , An providentia mundus regatur ; actionis , An accedendum ad rempublicam administrandam . Prius trium generum , an sit ? quid sit ? quale sit ? omnia enim haec ignorari possunt ; sequens duorum , quo modo adipiscamur ? quo modo utamur ?	Cicero distinguishes two kinds, the one concerned with knowledge, the other with action. Thus " Is the world governed by providence? " is a question of knowledge, while "Should we enter politics?" is a question of action. The first involves three questions, whether a thing is, what it is, and of what nature: for all these things may be unknown: the second involves two, how to obtain power and how to use it.
811	Finitae autem sunt ex complexu rerum personarum temporum ceterorumque ; hae ὑποθέσεις a Graecis dicuntur , causae a nostris . In his omnis quaestio videtur circa res personasque consistere .	Definite questions involve facts, persons, time and the like. The Greeks call them hypotheses, while we call them causes. In these the whole question turns on persons and facts.
812	Amplior est semper infinite , inde enim finita descendit . Quod ut exemplo pateat , infinita est , An uxor ducenda ? finita , An Catoni ducenda ? ideoque esse suasoria potest . Sed etiam remotae personis propriis ad aliquid referri solent . Est enim simplex , An respublica administranda ? refertur ad aliquid , An in tyrannide administranda ?	An indefinite question is always the more comprehensive, since it is from the indefinite question that the definite is derived. I will illustrate what I mean by an example. The question "Should a man marry?" is indefinite; the question "Should Cato marry?" is definite, and consequently may be regarded as a subject for a deliberative theme. But even those which have no connexion with particular persons are generally given a specific reference. For instance the question "Ought we to take a share in the government of our country?" is abstract, whereas "Ought we to take part in the government of our country under the sway of a tyrant?" has a specific reference.
813	Sed hic quoque ; subest velut latens persona :; tyrannus enim geminat quaestionem , subestque et temporis et qualitatis tacita vis ; nondum tamen hoc proprie dixeris causam . Hae autem , quas infinitas voco , et generales appellantur ; quod si est verum , finitae speciales erunt . In omni autem speciali utique inest generalis , ut quae sit prior .	But in this latter case we may say that a person is tacitly implied. For the mention of a tyrant doubles the question, and there is an implicit admission of time and quality; but all the same you would scarcely be justified in calling it a cause or definite question. Those questions which I have styled indefinite are also called general: if this is correct, we shall have to call definite questions special questions. But in every special question the general question is implicit, since the genus is logically prior to the species.
814	Ac nescio an in causis quoque , quidquid in quaestionem venit qualitatis , generale sit . Milo Clodium occidit , iure occidit insidiatorem ; nonne hoc quaeritur , An sit ius insidiatorem occidendi ? Quid in coniecturis ? non illa generalia , An causa sceleris odium ? cupiditas ? An tormentis credendum ? Testibus an argumentis maior fides habenda ? Nam finitione quidem comprehendi nihil non in universum certum erit .	And perhaps even in actual causes wherever the notion of quality comes into question, there is a certain intrusion of the abstract. "Milo killed Clodius: he was justified in killing one who lay in wait for him." Does not this raise the general question as to whether we have the right to kill a man who lies in wait for us? What again of conjectures? May not they be of a general character, as for instance, "What was the motive for the crime? hatred? covetousness?" or "Are we justified in believing confessions made under torture?" or "Which should carry greater weight, evidence or argument?" As for definitions, everything that they contain is undoubtedly of a general nature.
815	Quidam putant etiam eas thesis posse aliquando nominari , quae personis causisque contineantur , aliter tantummodo positas : ut causa sit , cum Orestes accusatur : thesis , An Orestes recte sit absolutus ; cuius generis est , An Cato recte Marciam Hortensio tradiderit . Hi thesin a causa sic distinguunt , ut illa sit spectativae partis , haec activae ; illic enim veritatis tantum gratia disputari , hic negotium agi .	There are some who hold that even those questions which have reference to persons and particular cases may at times be called theses, provided only they are put slightly differently: for instance, if Orestes be accused, we shall have a cause: whereas if it is put as question, namely "Was Orestes rightly acquitted?" it will be a thesis. To the same class as this last belongs the question "Was Cato right in transferring Marcia to Hortensius?" These persons distinguish a thesis from a cause as follows: a thesis is theoretical in character, while a cause has relation to actual facts, since in the former case we argue merely with a view to abstract truth, while in the latter we have to deal with some particular act.
816	Quanquam inutiles quidam oratori putant universales quaestiones , quia nihil prosit , quod constet ducendam esse uxorem vel administrandam rempublicam , si quis vel aetate vel valetudine impediatur . Sed non omnibus eiusmodi quaestionibus sic occurri potest , ut illis , sitne virtus finis ? regaturne providentia mundus ?	Some, however, think that general questions are useless to an orator, since no profit is to be derived from proving that we ought to marry or to take part in politics, if we are prevented from so doing by age or ill health. But not all general questions are liable to this kind of objection. For instance questions such as "Is virtue an end in itself?" or "Is the world governed by providence?" cannot be countered in this way.
817	Quin etiam in iis , quae ad personam referuntur , ut non est satis generalem tractasse quaestionem , ita perveniri ad speciem nisi illa prius excussa non potest . Nam quomodo , an sibi uxor ducenda sit , deliberabit Cato , nisi constiterit , uxores esse ducendas ? Et quomodo , an ducere debeat Marciam , quaeretur , nisi Catoni ducenda uxor est ?	Further in questions which have reference to a particular person, although it is not sufficient merely to handle the general question, we cannot arrive at any conclusion on the special point until we have first discussed the general question. For how is Cato to deliberate "whether he personally is to marry," unless the general question "whether marriage is desirable" is first settled? And how is he to deliberate "whether he should marry Marcia," unless it is proved that it is the duty of Cato to marry?
818	Sunt tamen inscripti nomine Hermagorae libri , qui confirmant illam opinionem , sive falsus est titulus sive alius hic Hermagoras fuit . Nam eiusdem esse quomodo possunt , qui de hac arte mirabiliter multa composuit , cum , sicut ex Ciceronis quoque rhetorico primo manifestum est , materiam rhetorices in thesis et causas diviserit ? Quod reprehendit Cicero ac thesin nihil ad oratorem pertinere contendit totumque hoc genus quaestionis ad philosophos refert .	There are, however, certain books attributed to Hermagoras which support this erroneous opinion, though whether the attribution is spurious or whether they were written by another Hermagoras is an open question. For they cannot possibly be by the famous Hermagoras, who wrote so much that was admirable on the art of rhetoric, since, as is clear from the first book of the Rhetorica of Cicero, he divided the material of rhetoric into theses and causes. Cicero objects to this division, contends that theses have nothing to do with an orator, and refers all this class of questions to the philosophers.
819	Sed me liberavit respondendi verecundia , et quod ipse hos libros improbat , et quod in Oratore atque his , quos de Oratore scripsit , et Topicis praecipit , ut a propriis personis atque temporibus avocemus controversiam : quia latius dicere liceat de genere quam de specie , et , quod in universo probatum sit , in parte probatum esse necesse sit .	But Cicero has relieved me of any feeling of shame that I might have in controverting his opinion, since he has not only expressed his disapproval of his Rhetorica, but in the Orator, the de Oratore and the Topica instructs us to abstract such discussions from particular persons and occasions, " because we can speak more fully on general than on special themes, and because what is proved of the whole must also be proved of the part. "
820	Status autem in hoc omne genus materiae iidem , qui in causas , cadunt . Adhuc adiicitur , alias esse quaestiones in rebus ipsis , alias quae ad aliquid referantur : illud , An uxor ducenda ? hoc , An seni ducenda ? illud , An fortis ? hoc , An fortior ? et similia .	In all general questions, however, the essential basis is the same as in a cause or definite question. It is further pointed out that there are some questions which concern "things in themselves," while others have a particular reference; an example of the former will be the question "Should a man marry?" of the latter "Should an old man marry?" ; or again the question whether a man is brave will illustrate the first, while the question whether he is braver than another will exemplify the second.
821	Causam finit Apollodorus , ut interpretation Valgi discipuli eius utar , ita : Causa est negotium omnibus suis partibus spectans ad quaestionem ; aut : Causa est negotium , cuius finis est controversia . Ipsum deinde negotium sic finit : Negotium est congregatio personarum , locorum , temporum , causarum , modorum , casuum , factorum , instrumentorum , sermonum , scriptorum et non scriptorum .	Apollodorus defines a cause in the following terms (I quote the translation of his pupil Valgius):— "A cause is a matter which in all its parts bears on the question at issue," or again "a cause is a matter of which the question in dispute is the object." He then defines a matter in the following terms:— " A matter is a combination of persons, circumstances of place and time, motives, means, incidents, acts, instruments, speeches, the letter and the spirit of the law.
822	Causam nunc intelligamus ὑπόθεσιν , negotium περίστασιν . Sed et ipsam causam quidam similiter finierunt , ut Apollodorus negotium . Isocrates autem causam esse ait quaestionem finitam civilem aut rem controversam in personarum finitarum complexu ; Cicero his verbis : Causa certis personis , locis , temporibus , actionibus , negotiis cernitur , aut in omnibus aut in plerisque eorum .	Let us then understand a cause in the sense of the Greek hypothesis or subject, and a matter in the sense of the Greek peristasis or collection of circumstances. But some, however, have defined a cause in the same way that Apollodorus defines a matter. Isocrates on the other hand defines a cause as some definite question concerned with some point of civil affairs, or a dispute in which definite persons are involved; while Cicero uses the following words:— " A cause may be known by its being concerned with certain definite persons, circumstances of time and place, actions, and business, and will relate either to all or at any rate to most of these. "
823	Ergo cum omnis causa contineatur aliquo statu , priusquam dicere aggredior , quo modo genus quodque causae sit tractandum , id quod est commune omnibus , quid sit status et unde ducatur et quot et qui sint , intuendum puto . Quanquam id nonnulli ad iudiciales tantum pertinere materias putaverunt , quorum inscitiam , cum omnia tria genera fuero exsecutus , res ipsa deprehendet .	VI. Since every cause, then, has a certain essential basis on which it rests, before I proceed to set forth how each kind of cause should be handled, I think I should first examine a question that is common to all of them, namely, what is meant by basis, whence it is derived and how many and of what nature such bases may be. Some, it is true, have thought that they were peculiar merely to forensic themes, but their ignorance will stand revealed when I have treated of all three kinds of oratory.
824	Quod nos statum , id quidam constitutionem vocant , alii quaestionem , alii quod ex quaestione appareat , Theodorus caput id est κεφάλαιον γενικώτατον , ad quod referantur omnia . Quorum diversa appellatio , vis eadem est ; nec interest discentium , quibus quidque nominibus appelletur , dum res ipsa manifesta sit .	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.
825	Statum Graeci στάσιν vocant , quod nomen non primum ab Hermagora traditum putant , sed alii ab Naucrate , Isocratis discipulo , alii a Zopyro Clazomenio ; quanquam videtur Aeschines quoque in oratione contra Ctesiphontem uti hoc verbo , cum a iudicibus petit , ne Demostheni permittant evagari , sed eum dicere de ipso causae statu cogant .	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 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.
826	Quae appellatio dicitur ducta vel ex eo , quod ibi sit primus causae congressus , vel quod in hoc causa consistat . Et nominis quidem haec origo ; nunc quid sit . Statum quidam dixerunt primam causarum conflictionem ; quos recte sensisse , parum elocutos puto .	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.
827	Non enim est status prima conflictio , fecisti , non feci ; sed quod ex prima conflictione nascitur , id est genus quaestionis , fecisti , non feci , an fecerit ? Hoc fecisti , non hoc feci , quid fecerit ? Quia ex his apparet , illud coniectura , hoc finitione quaerendum , atque in eo pars utraque insistit , erit quaestio coniecturalis vel finitivi status .	For the essential basis is not the first conflict, which we may represent by the clauses "You did such and such a thing" and "I did not do it." It is rather the kind of question which arises from the first conflict, which we may represent as follows. "You did it, "I did not, "Did he do it?," or "You did this, "I did not do this, "What did he do?" It is clear from these examples, that the first sort of question depends on conjecture, the second on definition, and that the contending parties rest their respective cases on these points: the bases of these questions will therefore be of a conjectural or definitive character respectively.
828	Quid si enim dicat quis , sons est duorum inter se corporum conflictio : erret , ut opinor , non enim sonus est conflictio sed ex conflictione . Sed hoc levius ; intelligitur enim utcunque dictum . Inde vero ingens male interpretantibus innatus est error , qui , quia primam conflictionem legerant , crediderunt statum semper ex prima quaestione ducendum ; quod est vitiosissimum .	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.
829	Nam quaestio nulla non habet utique statum , constat enim ex intentione et depulsione ; sed aliae sunt propriae causarum , de quibus ferenda sententia est , aliae adductae extrinsecus , aliquid tamen ad summam causae conferentes , velut auxilia quaedam , quo fit ut in controversia una plures quaestiones esse dicantur .	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.
830	Harum porro plerumque levissima quaeque primo loco fungitur . Namque et illud frequens est , ut ea , quibus minus confidimus , cum tractata sunt , omittamus , interim sponte nostra velut donantes , interim ad ea quae sunt potentiora gradum ex iis fecisse contenti .	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 opponents, while sometimes we are content to use them as a step to arguments which are of greater importance.
831	Simplex autem causa etiamsi varie defenditur , non potest habere plus uno , de quo pronuntietur , atque inde erit status causae , quod et orator praecipue sibi obtinendum et iudex spectandum maxime intelligit ; in hoc enim causa consistet . Ceterum quaestionum possunt esse diversi .	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.
832	Quod ut brevissimo pateat exemplo : cum dicit reus , Etiamsi feci , recte feci , qualitatis utitur statu ; cum adiicit , sed non feci , coniecturam movet . Semper autem firmius est non fecisse , ideoque in eo statum esse iudicabo , quod dicerem , si mihi plus quam unum dicere non liceret .	A brief example will show what I mean. When the accused says "Admitting that I did it, I was right to do it," he makes the basis one of quality; but when he adds "but I did not do it," he introduces an element of conjecture. But denial of the facts is always the stronger line of defence, and therefore I conceive the basis to reside in that which I should say, if I were confined to one single line of argument.
833	Recte igitur est appellata causarum prima conflictio non quaestionum . Nam et pro Rabirio Postumo Cicero prima parte orationis in hoc intendit , ut actionem competere in equitem Romanum neget ; secunda , nullam ad eum pecuniam pervenisse confirmat . Statum tamen in eo dicam fuisse , quod est potentius .	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.
834	Nec in causa Milonis circa primas quaestiones iudicabo conflixisse causam , sed ubi totis viribus insidiator Clodius ideoque iure interfectus ostenditur . Et hoc est , quod ante omnia constituere in animo suo debeat orator , etiamsi pro causa plura dicturus est , quid maxime liquere iudici velit . Quod tamen ut primum cogitandum , ita non utique primum dicendum erit .	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 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.
835	Alii statum crediderunt primam eius , cum quo ageretur , deprecationem . Quam sententiam his verbis Cicero complectitur : in quo primum insistit quasi ad repugnandum congressa defensio . Unde rursus alia quaestio , an eum semper is faciat qui respondet . Cui rei praecipue repugnat Cornelius Celsus dicens non a depulsione sumi , sed ab eo qui propositionem suam confirmet ; ut , si hominem occisum reus negat , status ab accusatore nascatur , quia is velit probare ; si iure occisum reus dicit , translata probationis necessitate idem a reo fiat , et sit eius intentio .	Others have thought that the basis lay in the first point raised by the other side in its defence. Cicero 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.
836	Cui non accedo equidem ; nam est vero propius quod contra dicitur , nullam esse litem , si is , cum quo agatur , nihil respondeat , ideoque fieri statum a respondente .	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.