Now let’s proceed to proof and refutation. All hope of success and the entire justification for one’s position are based on proof and refutation. For when we have explained the points in our favour and refuted those in opposition, we have accomplished in its entirety the task of the orator. We will be able to succeed at both proof and refutation, provided we identify the issue in the case. Others have specified four central issues.1 My teacher claimed there were three, not to detract from others’ discovery, but to show that a type they had made double and bipartite should in fact be taught as one.
An issue consists of the primary plea of the defence understood in conjunction with the charge of the accuser. As I have said, there are three such issues: factual,2 legal and juridical.
An issue is factual when there is dispute as to what happened. For example:3
Ajax is in the woods, and after realizing what he had done while out of his mind, falls on his sword. Ulysses comes upon him, sees that he is dead and removes the bloody weapon from his corpse. Teucer arrives and, seeing his brother dead and the enemy of his brother with a bloody sword, accuses Ulysses of murder.
Here the truth is sought by inference; the dispute will be over the facts. And so the issue of the case is said to be factual.
An issue is legal when a dispute arises over a text or the implication of a text. There are six potential problem areas: text and meaning, contrary laws, ambiguity, definition, transference and analogy.
A dispute about text and meaning arises when the intent of the writer seems to conflict with the text itself. For example:
Suppose the law orders that those who abandon a ship on account of bad weather lose everything, and that their goods, including the ship if it has been saved, become the property of those who remained on board. During a huge storm, everyone flees a ship in terror and gets into a lifeboat except one invalid. Due to his illness he cannot leave or escape. By chance and luck the ship is carried undamaged into port. The invalid is now in possession of the ship. The previous owner sues to get it back.
This is an issue based on text and meaning, or, we might say, letter and intent.
A dispute over conflicting laws arises when one law requires or permits what another forbids, for example:
The law forbids anyone convicted of extortion from speaking in the public assembly. Another law orders an augur to identify by name in the assembly the candidate to replace a deceased augur.4 A certain augur convicted of extortion has designated the candidate for replacement of the deceased. There is a petition to punish him with a fine.
This is a legal issue arising from conflicting laws.
A dispute arises from ambiguity when what is written has two or more meanings, for example:
The head of a family named his son as heir, but in his will he bequeathed silver vessels to his wife as follows: ‘Let my heir convey silver vessels weighing thirty pounds, such as will be selected.’ After his death his widow demands certain precious vessels with beautiful relief work. The son says that he is only obliged to give her thirty pounds’ weight of vessels, such as will be selected – by himself.
This is a legal controversy arising from ambiguity.
The case hinges on definition when the term to be assigned to an act is in dispute. For example:
When Lucius Saturninus was about to propose a law setting the price of grain at five-sixths as, Quintus Caepio, who was at the time urban quaestor, told the senate that the treasury could not afford such an outlay.5 The senate decreed that if Saturninus should refer the matter to the people, he would be considered an enemy of the republic. Saturninus initiated the referral. Caepio, seeing him act against the republic despite the veto of his colleagues, makes an attack with the help of fellow conservatives: he destroys the bridges,6 overturns the ballot-boxes and prevents further consideration of the motion. Caepio is charged with treason.
This is a legal issue based on definition. For it is a question of defining the term ‘treason’.
A dispute arises from transference when the defendant seeks a postponement, a change of prosecutor or a change of judges. The Greeks used this type of issue in actual trials, we Romans in preliminary proceedings. Still, we do sometimes raise this issue even in trials. For example, suppose someone is accused of embezzlement, having removed silver vessels belonging to the public from a private venue. He might argue, once he has defined theft and embezzlement, that he should be tried on the former charge but not the latter.7
This subset of legal issue rarely arises in such cases because while in a private action the praetor8 hears counterpleas and the plaintiff loses the case unless he has a cause for action, in hearings on public matters, the laws provide for a prior ruling, if it suits the defendant, as to whether his opponent is or is not entitled to make an accusation.
Analogy is the issue when a matter comes to trial that is not mentioned in any specific law, but is pursued nonetheless on the basis of similarity to other laws. Here is an example:
The law states: if a man is insane, let control of his money be in the hands of his paternal relatives and members of his extended family. Another law: Anyone convicted of killing a parent is to be wrapped and bound in leather and thrown into rushing water. Another law: whatever a head of family has directed regarding his money and his household, let the law sustain. Another law: if a head of family dies without a will, his household and money fall to his paternal relatives and members of his extended family.
Malleolus9 is convicted of killing his mother. As soon as he is convicted, his face is wrapped in the skin of a wolf and wooden shoes are placed on his feet. He is then taken to prison. His defenders bring tablets to prison and transcribe his will in his presence, with the required witnesses. He is then executed. Those named heirs in his will enter into the inheritance. The younger brother of Malleolus, who opposed him at his trial, invokes his right of inheritance on the basis of the law concerning paternal, or agnate, relations.
Here no specific law is applicable, yet many are treated as applicable, and from them inference is developed, as to whether the will can or cannot be legal. This is a legal issue of analogy.
We have discussed the subheadings of legal issue, now let’s consider juridical issue. The issue is juridical when there is an agreement as to what happened, but there is a question as to the justice or injustice of the act. There are two versions of this issue, one absolute or instrinsic, the other assumptive or extrinsic.
The juridical issue is absolute when we assert that the disputed action was correct, independent of any external consideration. For example:
A certain mime verbally attacked the poet Accius10 by name from the stage. Accius claims injuries in court. The mime makes no defence except that it is legal to call out by name someone in whose name plays are offered for production.
The juridical issue is of the extrinsic sort when the defence is weak on its own, but compelling if extraneous considerations are brought to bear. Such extraneous considerations are of four sorts: acknowledgement, rejection of responsibility, transfer of responsibility, comparison.
It’s acknowledgement when the defendant asks to be pardoned. This is divided into exoneration and an appeal for clemency. Exoneration is when the defendant claims that his action was not intentional. It can be based on ignorance, misfortune or necessity: misfortune as in the case of Caepio before the tribune of the plebs concerning the loss of his army;11 ignorance, as in the case of the man who had a slave killed for killing his master, the man’s brother, before he opened the will in which the slave had been set free;12 necessity, as in the case of the man who failed to return on time from a leave because a flood had blocked his way.
A plea for mercy occurs when the defendant admits that he committed a crime and did so intentionally but asks for pity. This doesn’t usually happen in court unless we are arguing on behalf of someone known for his good deeds. For example, we might amplify our argument by supplying a commonplace, such as: ‘If he had committed this act, it would still be right to pardon him for his prior good deeds, and yet he does not ask to be pardoned.’ This approach isn’t used in court, but can be used in the senate, before a general or in the meeting of an advisory group.
The argument arises from transfer of blame when we do not deny the act, but say we were forced to do it by the criminal behaviour of others. For example, Orestes, when defending himself, transferred responsibility to his mother.13
The argument consists of removal of the charge when we shift blame to some other person or thing. Here is an example of transfer to a person:
If the one who is accused of killing Publius Sulpicius14 admits it, but also explains the reason why the act was permissible.
Of transfer to a thing:
If someone is forbidden by plebiscite to do what is required of him as heir.
The argument is from comparison when we say it was necessary to do one thing or another, and that the action we took was preferable. Here is an example:
Gaius Popilius, when he was surrounded by the Gauls15 and unable to escape by any means, entered a colloquy with the enemy generals. The upshot was that he could lead his army off as long as he abandoned their baggage. He reasoned that it was better to abandon the baggage than the army. And so he led the army off, but left the baggage behind. He is being charged with treason.
I believe I have explained the key issues and their subdivisions. Next to be considered are the strategies for treating issues, once both sides have reached agreement as to the focus of the case.
As soon as the key issue has been determined, we must seek the motive or rationale. The motive is the cause of the alleged criminal action and structures the defence. For example, to stay with the case of Orestes for instructional purposes:
Orestes admits that he killed his mother. If he doesn’t advance a rationale for the deed, he undermines his defence. And so he describes the action without which the alleged crime would not have taken place: ‘She killed my father.’
Therefore, as I pointed out, the motive or rationale structures the defence. Without it there is not the slightest doubt that would delay conviction.
Once the rationale has been discovered, we must determine the basis of the accusation. This structures the prosecution case and is presented in opposition to the defence. It is established in the following manner. When Orestes presents his rationale, saying, ‘I was within my rights to kill her, for she killed my father’, the accuser will use a basis like this: ‘But it was not right for her to be killed by you, or to pay the penalty without being convicted.’
The decision at trial necessarily hinges on the rationale presented by the defence and basis presented by the prosecution. We call this the point of contention, for which the Greek term is krinomenon. It is established by bringing together the basis and the rationale, as follows:
Because Orestes says that he killed his mother to avenge his father, the point of contention is whether it was right for Clytemnestra to be killed by her son without a trial.
Thus we absolutely must find the point at issue and organize our entire presentation around it. This is how we find the key point of contention, regardless of the issues and subdivisions under consideration. This is especially true with disputes as to fact, which lack either a defence rationale, since the act is denied, or a prosecutorial basis, since there is no rationale to refute. The point of contention, instead, is assertion and denial of the act. For example:
Assertion: You killed Ajax.
Denial: No I didn’t.
Point of contention: Did he or didn’t he?
As explained earlier, the entirety of each speech must bear on this point of contention. If there are many issues or sub-issues in a single case, then there will be many points of contention, but all will be identified in a similar manner.
We have tried very hard to discuss clearly and concisely the topics addressed thus far. Now, because the size of this volume has grown quite enough, it is better to take up the remaining topics in another volume, so that the number of letters does not tire you out. But if you think your studies are going too slowly, you can blame the magnitude of the subject as well as my other occupations. Nevertheless, I will try to speed the process and compensate for the time lost to other business. It’s only right for me to treat you with generosity, given your service to me and my warm regard for you.