1. Division, as I have already stated,
1 means the
division of a group of things into its component
parts,
partition is the separation of an individual
whole into its elements,
order the correct disposition
[p. 7]
of things in such a way that what follows coheres
with what precedes, while
arrangement is the distribution of things and parts to the places which it is
expedient that they should occupy.
[
2]
But we must
remember that
arrangement is generally dependent
on expediency, and that the same question will not
always be discussed first by both parties. An
example of what I mean, to quote no others, is
provided by Demosthenes and Aeschines, who adopt
a different order in the trial of Ctesiphon, since the
accuser begins by dealing with the legal question
involved, in which he thought he had the advantage,
whereas the advocate for the defence treats practically every other topic before coming to the question
of law, with a view to preparing the judges for a
consideration of the legal aspect of the case.
[
3]
For
it will often be expedient for the parties to place
different points first; otherwise the pleading would
always be determined by the good pleasure of the
prosecution. Finally, in a case of mutual accusation,
2
where both parties have to defend themselves before
accusing their antagonist, the order of everything
must necessarily be different. I shall therefore set
forth the method adopted by myself, about which I
have never made any mystery: it is the result in
part of instruction received from others, in part of
my own reasoning.
[
4]
When engaged in forensic disputes I made it a
point to make myself familiar with every circumstance connected with the case.
3 (In the schools,
of course, the facts of the case are definite and
limited in number and are moreover set out before
we begin to declaim: the Greeks call them
themes,
which Cicero
4 translates by
propositions.) When I
[p. 9]
had formed a general idea of these circumstances, I
proceeded to consider them quite as much from my
opponent's point of view as from my own.
[
5]
The
first point which I set myself to determine (it is
easy enough to state, but is still all-important) was
what each party desired to establish and then what
means he was likely to adopt to that end. My
method was as follows. I considered what the
prosecutor would say first: his point must either be
admitted or controversial: if admitted, no question
could arise in this connexion.
[
6]
I therefore passed to
the answer of the defence and considered it from the
same standpoint: even there the point was sometimes one that was admitted. It was not until the
parties ceased to agree that any question arose.
'fake for example the following case. “You killed
a man.” “Yes, I killed him.” Agreed, I pass to
the defence,
[
7]
which has to produce the motive for
the homicide. “It is lawful,” lie urges, “to kill an
adulterer with his paramour.” Another admitted
point, for there is no doubt about the law. We
must look for a third point where the two parties are
at variance. “They were not adulterers,” say the
prosecution; “They were,” say the defence. Here
then is the question at issue: there is a doubt as to
the facts, and it is therefore a question of
conjecure.5
Sometimes even the third point may be admitted;
[
8]
it is granted that they were adulterers. “But,” says
the accuser, “you had no right to kill them, for you
were an exile” or “had forfeited your civil rights.”
The question is now one of law. On the other
hand, if when the prosecution says, “You killed
them,” the defence at once replies, “I did not,” the
issue is raised without more delay.
[p. 11]
If it requires some search to discover where the
dispute really begins, we must consider what constitutes the first question. The charge may be simple,
[
9]
as for example “Rabirius killed Saturninus,”
6 or
complex like the following: “The offence committed
by Lucius Varenus falls under the law of assassination
for he procured the murder of Gaius Varenus, the
wounding of Gnaeus Varenus and also the murder
of Salarius.”
7 In the latter case there will be a
number of propositions, a statement which also
applies to civil suits as well. But in a complex case
there may be a number of
questions and
bases:
8 for
instance the accused may deny one fact, justify
another and plead technical grounds to show
9 that
a third fact is not actionable. In such cases the
pleader will have to consider what requires refutation
and where that refutation should be placed.
[
10]
As regards the prosecutor, I do not altogether
disagree with Celsus, who, though no doubt in so
doing he is following the practice of Cicero, insists
with some vehemence on the view that the first
place should be given to some strong argument,
but that the strongest should be reserved to the end,
while the weaker arguments should be placed in the
middle, since the judge has to be moved at the beginning and forcibly impelled to a decision at the end.
But with the defence it is different:
[
11]
the strongest
arguments as a rule require to be disposed of first,
for fear that the judge through having his thoughts
fixed on those arguments should regard the defence
of other points with disfavour. Sometimes, however,
this order is subject to alteration; for example if the
minor arguments are obviously false and the refutation of the most serious argument a matter of some
[p. 13]
difficulty, we should attack it last of all, after discrediting the prosecution by demonstrating the falsity
of the former, thereby disposing the judges to believe that all their arguments are equally unreliable.
We shall, however, require to preface our remarks by
explaining why we postpone dealing with the most
serious charge, and by promising that we will deal
with it at a later stage: otherwise the fact that we do
not dispose of it at once may give the impression that
we are afraid of it.
[
12]
Charges brought against the
past life of the accused should generally be dealt
with first in order that the judge may be well disposed to listen to our defence on that point on which
lie has to give his verdict. But Cicero in the
pro
Vareno postpones his treatment of such charges to
the conclusion, being guided not by the general rule,
but by the special circumstances of the case.
[
13]
When the accusation is simple, we must consider
whether to give a single answer to the charge or
several. In the former case, we must decide
whether the question is one of fact or of law: if it is
one of fact, we must deny the fact or justify it: if, on
the other hand, it is a question of law, we must decide
on what special point the dispute arises and whether
the question turns on the letter or the intention of
the law.
[
14]
We shall do this by considering what the
law is which gives rise to the dispute, that is to say
under what law the court has been constituted. In
scholastic themes, for example, the laws are sometimes stated merely with a view to connecting the
arguments of the cases. Take the following case:
“A father who recognises a son whom he has exposed in infancy, shall only take him back after paying
for his keep. A disobedient son may be disinherited.
[p. 15]
A man who took back a son whom he had exposed
orders him to marry a wealthy neighbour. The son
desires to marry the daughter of the poor man who
brought him up.”
[
15]
The law about children who have
been exposed affords scope for emotional treatment,
while the decision of the court turns on the law of
disinheritance.
10 On the other hand, a question may
turn on more laws than one, as in cases of
ἀντινομία
or contradictory laws.
11 It is by consideration of such
points as these that we shall be able to determine
the point of law out of which the dispute arises.
[
16]
As an example of complex defence I may quote
the
pro Rabirio: “If he had killed him, he would
have been justified in so doing: but he did not kill
him.” But when we advance a number of points in
answer to a single proposition, we must first of all
consider everything that can be said on the subject,
and then decide which out of these points it is expedient to select and where to put them forward.
My views on this subject are not identical with
those which I admitted a little while ago
12 on the
subject of
propositions and on that of
arguments in
the section which I devoted to
proofs,13 to the effect
that we may sometimes begin with the strongest.
[
17]
For when we are defending, there should always be an
increase of force in the treatment of questions and we
should proceed from the weaker to the stronger,
whether the points we raise are of the same or of a
different character.
[
18]
Questions of law will often arise
from one ground of dispute after another, whereas
questions of fact are always concerned with one point;
14
[p. 17]
but the order to be followed is the same in both
cases. We must, however, deal first with points that
differ in character. In such cases the weakest
should always be handled first, for the reason that
there are occasions when after discussing a question
we make a concession or present of it to our opponents: for we cannot pass on to others without
dropping those which come first.
[
19]
This should be
done in such a way as to give the impression not
that we regard the points as desperate, but that we
have deliberately dropped them because we can
prove our case without them. Suppose that the
agent for a certain person claims the interest on a
loan as due under an inheritance. The question may
here arise whether such a claim can be made by an
agent.
15 Assume that, after discussing the question,
[
20]
we drop it or that the argument is refuted. We
then raise the question whether the person in whose
name the action is brought has the right to employ
an agent. Let us yield this point also.
16 The case
will still admit of our raising the question whether
the person in whose name the suit is brought is
heir to the person to whom the interest was due
and again whether he is sole heir.
[
21]
Grant these
points also and we can still raise the question whether
the sum is due at all? On the other hand, no one
will be so insane as to drop what he considers his
strongest point and pass to others of minor importance. The following case from a scholastic theme
is of a similar character. “You may not disinherit
your adopted son. And if you may disinherit him
quâ adopted son, you may not disinherit one who is
so brave. And if you may disinherit one who is so
brave, you may not disinherit him because he has
[p. 19]
not obeyed your every command; and if he was
bound to obey you in all else, you may not disinherit
him on the ground of his choice of a reward; and
even if the choice of a reward may give just ground
for disinheriting, that is not true of such a choice
as he actually made.
17
[
22]
” Such is the nature of
dissimilarity where points of law are concerned.
Where, however, the question is one of fact, there
may be several points all tending to the same result,
of which some may be dropped as not essential to
the main issue, as for instance if a man accused of
theft should say to his accuser, “Prove that you had
the property, prove that you lost it, prove that it
was stolen, prove that it was stolen by me.” The
first three can be dropped, but not the last.
I used also to employ the following method.
[
23]
I
went back from the ultimate
species (which generally
contains the vital point of the case) to the first
general question or descended from the
genus to the
ultimate
species,18 applying this method even to deliberative themes.
[
24]
For example, Numa is deliberating
whether to accept the crown offered him by the
Romans. First he considers the general question,
“Ought I to be a king?” Then, “Ought I to be
king in a foreign state? Ought I to be king at
Rome? Are the Romans likely to put up with such
a king as myself?” So too in controversial themes.
Suppose a brave man to choose another man's wife
as his reward. The ultimate
species is found in the
question whether lie is allowed to choose another
man's wife. The
general question is whether he
should be given whatever he chooses. Next come
questions such as whether he can choose his reward
from the property of private individuals, whether he
[p. 21]
can choose a bride as his reward, and if so, whether
he can choose one who is already married.
[
25]
But in
our search for such questions we follow an order
quite different from that which we employ in actual
speaking.
19 For that which as a rule occurs to us first,
is just that which ought to come last in our speech:
as for instance the conclusion, “You have no right
to choose another man's wife.” Consequently undue
haste will spoil our division of the subject. We
must not therefore be content with the thoughts
that first offer themselves, but should press our
inquiry further till we reach conclusions such as
that he ought not even to choose a widow: a further
advance is made when we reach the conclusion that
be should choose nothing that is private property, or
last of all we may go back to the question next in
order to the general question, and conclude that he
should choose nothing inequitable.
[
26]
Consequently
after surveying our opponent's proposition, an easy
task, we should consider, if possible, what it is most
natural to answer first. And, if we imagine the case
as being actually pleaded and ourselves as under the
necessity of making a reply, that answer will probably suggest itself. On the other hand,
[
27]
if this is
impossible, we should put aside whatever first
occurs
to us and reason with ourselves as follows: “What
if this were not the case?” We must then repeat
the process a second and a third time and so on,
until nothing is left for consideration. Thus we
shall examine even minor points, by our treatment
of which we may perhaps make the judge all the
better disposed to us when we come to the main
issue.
[
28]
The rule that we should descend from the
common to the
particular is much the same, since
[p. 23]
what is
common is usually
general. For example,
“He killed a tyrant” is
common, while “A tyrant
was killed by his son, by a woman or by his wife”
are all
particular.
[
29]
I used also to note down separately whatever was
admitted both by my opponent and myself, provided
it suited my purpose, and not merely to press any
admissions that he might make, but to multiply
them by partition, as for example in the following
controversial theme:—“A general, who had stood
against his father as a candidate and defeated him,
was captured: the envoys who went to ransom him
met his father returning from the enemy. He said
to the envoys, 'You are too late.'
[
30]
They searched
the father and found gold in his pockets. They
pursued their journey and found the general crucified. He cried to them, ' Beware of the traitor.'
The father is accused.” What points are admitted
by both parties? “We were told that there had
been treason and told it by the general.” We try
to find the traitor. “You admit that you went to the
enemy, that you did so by stealth, that you returned
unscathed, that you brought back gold and had it
concealed about your person.”
[
31]
For an act of the
accused may sometimes be stated in such a way as
to tell heavily against him, and if our statement
makes a real impression on the mind of the judge,
it may serve to close his ears to all that is urged by
the defence. For as a general rule it is of advantage
to the accuser to mass his facts together and to the
defence to separate them.
I used also, with reference to the whole material
of the case, to do what I have already mentioned
20
as being done with arguments, namely, after first
[p. 25]
setting forth all the facts without exception, I then
disposed of all of them with the one exception
of the fact which I wished to be believed. For
example, in charges of collusion it may be argued
as follows.
[
32]
“The means for securing the acquittal
of an accused person are strictly limited. His innocence may be established, some superior authority
may intervene, force or bribery may be employed,
his guilt may be difficult to prove, or there may be
collusion between the advocates. You admit that
he was guilty; no superior authority intervened, no
violence was used and you make no complaint that
the jury was bribed, while there was no difficulty
about proving his guilt. What conclusion is left to
us save that there was collusion?”
[
33]
If I could not
dispose of all the points against me, I disposed of
the majority. “It is acknowledged that a man was
killed: but he was not killed in a solitary place,
such as might lead me to suspect that he was the
victim of robbers; he was not killed for the sake of
plunder, for nothing was taken from him; he was
not killed in the hope of inheriting his property, for
he was poor: the motive must therefore have been
hatred, since you are his enemy.”
[
34]
The task not
merely of division, but of invention as well, is rendered materially easier by this method of examining
all possible arguments and arriving at the best by a
process of elimination. Milo is accused of killing
Clodius. Either he did or did not do the deed.
The best policy would be to deny the fact, but that
is impossible. It is admitted then that he killed
him. The act must then have been either right or
wrong. We urge that it was right. If so, the act
must have either been deliberate or under
[p. 27]
compulsion of necessity, for it is impossible to plead
ignorance.
[
35]
The intention is doubtful, but as it is
generally supposed to have existed, some attempt
must he made to defend it and to show that it was
for the good of the state. On the other hand, if we
plead necessity, we shall argue that the fight was
accidental and unpremeditated. One of the two
parties then must have lain in wait for the other.
Which was it? Clodius without doubt. Do you
see how inevitably we are led to the right method
of defence by the logical necessity of the facts?
[
36]
We
may carry the process further: either he wished to
kill Clodius, who lay in wait for him, or he did not.
The safer course is to argue that he did not wish
to kill him. It was then the slaves of Milo who did
the deed without Milo's orders or knowledge. But
this line of defence shows a lack of courage and
lessens the weight of our argument that Clodius
was rightly killed.
[
37]
We shall therefore add the
words, “As every man would have wished his slaves
to do under similar circumstances.”
21 This method is
all the more useful from the fact that often we can
find nothing to say that really pleases us and yet
have got to say something. Let us therefore consider every possible point; for thus we shall discover what is the best line for us to pursue, or at
any rate what is least bad. Sometimes, as I have
already said in the appropriate context,
22 we may
make good use of the statement of our opponent,
since occasionally it is equally to the purpose of
both parties.
I am aware that some authors have written
thousands of lines to show how we may discover
which party ought to speak first. But in the actual
[p. 29]
practice of the courts this is decided either by some
brutally rigid formula, or by the character of the
suit, or finally by lot.
[
38]
In the schools, on the other
hand, such an enquiry is mere waste of time, since
the prosecution and the defence are indifferently
permitted to state a case and refute it in the same
declamation. But in the majority of controversial
themes it is not even possible to discover who
should speak first, as for instance in the following:
“A certain man had three sons, an orator, a
philosopher and a physician. In his will he divided
his property into four portions, three of which he
distributed equally among his sons, while the fourth
was to go to the son who rendered the greatest
service to his country.”
[
39]
The sons dispute the point.
It is uncertain who should speak first, but our
course is clear enough. For we shall begin with the
son whose role we assume. So much for the general
rules by which we should be guided in making our
division.
[
40]
But how shall we discover those
questions which
present abnormal difficulty? Just as we discover
reflexions, words, figures or the appropriate
nuances
of style,
23 namely by native wit, by study and by
practice. None the less it will be rare for anyone
who is not a fool to fail to discover them, so long as
he is content, as I have said,
24 to accept nature for a
guide.
[
41]
Many, however, in their passionate desire to
win a reputation for eloquence are content to produce
showy passages which contribute nothing to the
proof of their case, while others think that their
enquiry need not proceed further than that which
meets the eye.
To make my meaning clearer, I will cite a
[p. 31]
solitary example from the controversial themes of
the schools; it is neither novel nor complicated.
[
42]
“The man who refuses to appear in defence
of his father when accused of treason shall be
disinherited: the man who is condemned for treason
shall be banished together with his advocate. A
father accused of treason was defended by one
son who was a fluent speaker, while another son,
who was uneducated, refused to appear for him.
The father was condemned and banished with his
advocate. The uneducated son performed some
heroic act and demanded as a reward the restoration
of his father and brother. The father returned and
died intestate. The uneducated son claims a portion
of his estate, the orator claims the whole for himself.”
[
43]
In this case those paragons of eloquence,
who laugh at us because we trouble our heads about
cases that rarely occur, will always assume the
popular rôle. They will defend the uneducated
against the eloquent son, the brave against the
coward, the son who secured the recall of his kin
against the ungrateful son, the son who is content
with a portion of the inheritance against the son
who would refuse his brother a share in their
patrimony.
[
44]
All these points are actually to be
found in the case and are of considerable importance, but they are not such as to render victory
a certainty. In such a case they will, as far as
possible, search for daring or obscure reflexions (for
to-day obscurity is accounted a virtue), and they
will think they have given the theme a brilliant
treatment by ranting and raving over it. Those, on
the other hand, whose ideals are higher, but who
restrict themselves merely to the obvious, will note
[p. 33]
the following points, which are, however, purely
superficial.
[
45]
The uneducated son may be excused
for not appearing at the trial on the ground that he
could contribute nothing to his father's defence: but
even the orator has no claim on the gratitude of
the accused, since the latter was condemned:
25 the
man who secured the recall of his kin deserves
to receive the inheritance, while the man who
refuses to divide it with his brother, more especially with a brother who has deserved so well
of him, is avaricious, unnatural and ungrateful:
they will further note that the first and essential
question is that which turns on the letter and intention of the law; unless this is first disposed of,
all subsequent arguments must fall to the ground.
[
46]
He, however, who follows the guidance of nature
will assuredly reflect as follows: the first argument
of the uneducated son will be, “My father died
intestate and left two sons, my brother and myself;
I claim a share in his estate by the law of nations.”
Who is so ignorant or so lacking in education as
not to make this his opening, even though he
does not know what is meant by a proposition?
26
[
47]
He will then proceed to extol, though with due
moderation, the justice of this common law of
nations. The next point for our consideration is
what reply can be made to so equitable a demand?
The answer is clear:—“There is a law which disinherits the man who fails to appear in his father's
defence when the latter is accused of treason, and
you failed to appear.” This statement will be
followed by the necessary praise of the law and
denunciation of the man who failed to appear.
[
48]
So far we have been dealing entirely with
[p. 35]
admitted facts. Let us now return to the claimant.
Unless he is hopelessly unintelligent, surely the
following argument will suggest itself:—“If the law
bars the way, there is no ground for action and the
trial becomes a farce. But it is beyond question that
the law exists and that the uneducated son did
commit the offence for which it enacts a punishment.” What then shall we say? “I had no
education.”
[
49]
But if the law applies to all men, it
will be of no avail to plead lack of education. We
must therefore try to discover whether there be not
some point on which the law can be invalidated.
We turn for guidance to nature (a point on which
I cannot insist too often); what does she suggest
save that when the letter of the law is against us,
we should discuss its intention? This introduces
the general question whether we are to stand by the
letter or the spirit. But if we argue this question
on general grounds with reference to law in the
abstract, we shall go on for ever; it is a question
that has never been decided. We must therefore
restrict our enquiry to the particular law on which
our case turns and try to find some argument
against adhesion to the strict letter.
[
50]
Well, then, is
everyone who fails to appear in defence of his father
to be disinherited? Are there no exceptions to the
rule? At this point the following arguments will
spontaneously suggest themselves. “Is an infant
liable to the law?” For we may imagine a case
where the son is an infant and has failed to appear
in his father's support. Again “does the law apply
to a man who was away from home or absent on
military service or on an embassy?” We have
gained a considerable amount of ground; for we
[p. 37]
have established the fact that a man may fail to
appear for his father and still inherit.
[
51]
Our declaimer,
who has thought out this line of argument, must now
pass over like a Latin flute-player, as Cicero says,
27
to the side of the eloquent son and reply, “Granted,
but you are not an infant, you were not away from
home nor absent on military service.” Is there any
answer to this except the previous reply, “I am an
uneducated man”?
[
52]
But to this there is the obvious
retort, “Even if you could not actually plead,
you might have supported him by your presence,”
which is no more than the simple truth. The uneducated son must therefore return to the intention
of the legislator. “He wished to punish unfilial
conduct, but I am not unfilial.”
[
53]
To this the
eloquent son will reply, “The action whereby you
deserved disinheritance was unfilial, although penitence or desire for display may have subsequently
led you to choose this as your reward. Further,
it was owing to you that our father was condemned,
since by absenting yourself you appeared to imply
that you thought him guilty.” The uneducated son
replies, “Nay, you contributed to his condemnation, for you had given offence to many and made
our family unpopular.” These arguments are based
on conjecture, as also will be the excuse put forward
by the uneducated son to the effect that his father
advised his absence, as he did not wish to emperil
his whole family. All these arguments are involved
in the preliminary question as to the letter and the
intention of the law.
[
54]
Let us pursue the matter
further and see if we can discover any additional
arguments. How is that to be done? I am deliberately imitating the actual train of thought of one
[p. 39]
who is engaged in such an enquiry with a view to
showing how such enquiry should be conducted. I
shall therefore put aside the more showy kind of
composition, and concern myself solely with such as
may be of real profit to the student.
So far we have derived all our questions from the
character of the claimant. But why should we not
make some enquiries into the character of the father?
Does not the law say that whoever fails to appear
for his father is to be disinherited?
[
55]
Why should we
not try asking whether this means that he is to be
disinherited, whatever the character of the father
for whom he failed to appear? Such a course is
often adopted in those controversial themes in
which we demand that sons who fail to maintain
their parents should be cast into prison: take for
example the case of the mother who gave evidence
against her son when accused of being an alien, or
of the father who sold his son to a procurer. What,
then, is there in the present case that we lay hold of
as regards the character of the father?
[
56]
He was
condemned. But does the law apply only to those
cases where the father is acquitted? At first sight
the question is difficult. But let us not despair. It
is probable that the intention of the legislator was
that innocent parents should secure the support of
their children. But the uneducated son will be
ashamed to produce this argument, since he acknowledges that his father was innocent.
[
57]
There is, however, another line of argument which may be drawn
from the enactment that the person condemned for
treason should be banished together with his
advocate. It seems almost impossible that in one
and the same case a son should incur a penalty,
[p. 41]
both if he appeared in his father's defence and if
he did not appear. Further, exiles are outlaws.
Therefore the letter of the law cannot conceivably apply to the advocate of the condemned
man.
[
58]
For how can an exile hold any property?
The uneducated son raises a doubt as to the interpretation both of the letter and the spirit of the law.
Tile eloquent son will cling to the strict letter of
tile law, which makes no exception, and will argue
that the reason for enacting a penalty against those
who fail to appear for their fathers was to prevent
their being deterred from the defence of their
fathers by the risk of banishment, and he will assert
that his brother failed to appear in defence of
his innocent father. It may therefore be worth
while pointing out that two
general questions may
arise out of one
basis—
28 for we may ask, “Is everyone who fails to appear liable to disinheritance?”
or “Is he bound to appear irrespective of the
character of his father?”
[
59]
So far all our questions have been derived from
two of the persons involved.
29 With regard to the
third, this can give rise to no question, as there is
no dispute about his portion of the inheritance.
Still the time is not yet come to relax our
efforts: for so far all the arguments might have
been used even if the father had not been recalled
from exile. But we must not betake ourselves
at once to the obvious point that he was recalled
by the agency of the uneducated son. A little
ingenuity will lead us to look further a field:
for as
species comes after
genus, so
genus precedes
[60]
species. Let us therefore assume that the father
was recalled by someone else. This will give rise
[p. 43]
to a question of the ratiocinative or syllogistic type,
30
namely whether recall from exile cancels the sentence of the court and is tantamount to the trial
never having taken place at all. The uneducated
son will therefore attempt to argue that, being
entitled to not more than one reward, there was no
means by which he could have secured the recall of
his kin save by the restoration of his father on the
same terms as if he had never been accused, and
that this fact carries with it the cancellation of the
penalty incurred by his advocate, as though he had
never defended his father at all.
31
[
61]
Our next point
will be that which first occurred to us, namely the
plea that he was recalled by the agency of the
uneducated son. At this point we are confronted
by the question whether the son who secured his
father's restoration is thereby to be regarded in the
light of an advocate, since he secured for him
precisely what his original advocate demanded for
him, and it is not an unreasonable claim to ask that
an action should be regarded as equivalent when it
is really more than equivalent.
[
62]
The remaining
points turn on questions of equity, for we ask which
of the two sons makes the juster claim. This
question admits of still further division. The claim
of the uneducated son would have been the juster
even if both had claimed the whole property. How
much more so when one claims only a half and the
other the whole to the exclusion of his brother.
And then, even after we have dealt with all these
points, an appeal to the memory of his father will
carry great weight with the judges, more especially
as the dispute is about the father's estate. This
will give rise to conjecture as to what the intentions
[p. 45]
of the father were at the time of his dying intestate.
This conjecture, however, involves a question of
quality, and is employed in the service of a
different
basis.32
[
63]
As a rule questions of equity are
best introduced at the conclusion of a case, since
there is nothing to which the judges give more
ready hearing. Sometimes, however, the interests
of the case demand a change in this order; for
example if we regard our case as weak in point of
law, it will be well to secure the good-will of the
judge by dealing with the question of equity first.
[
64]
This concludes my general rules on this subject.
We will now proceed to consider the several parts
of forensic cases, and although I cannot follow them
to the
ultimate species,33 that is to say, I cannot deal
with individual suits and controversies, I shall be
able to discuss them on general lines in such a way
as to show what
bases most of them involve. And
since the first question naturally is whether an
alleged fact has taken place, I will begin with this.