ABSTRACT
In teaching their pupils to distinguish the various types of issue which could arise in legal cases, the rhetoricians had, as we have seen, provided illustrative examples of each type, and had explained what the relevant topics were, for both accusation and defence. It was necessary, however, to supplement this doctrine with actual practice in speaking, and teachers therefore not only used the textbook examples, but invented many others of their own as practical exercises on which their pupils could declaim, either for or against, like advocates in court. After stating clearly the law, or laws, governing each particular exercise, they propounded a situation or ‘theme’ in which the protagonist, or one of the protagonists, was imagined as the accused, and his course of action was either denounced or upheld or excused. This form of declamatory exercise was called in Cicero's day simply a ‘case’ (causa., but soon came to be known as a ‘disputation’ or ‘controversy’ (controversia); [1] this word, originally applied to the basic issue of a conflict, was then extended as a general term for the exercise as a whole. [2] As, under the Empire, many of the situations imagined became more bizarre and artificially contrived, the exercise was especially associated with the scholasticus or ‘school-man’, and was called a ‘scholastic theme’ (scholastica materia, or simply scholastica., [3] to distinguish it from the genuine legal contests of the Forum. Nevertheless, the laws quoted at the head of the exercises, which used to be dismissed as fictitious, or as of Greek origin, have been shown to contain much that is either genuine, or adapted, sometimes loosely, from previous Roman legislation. [4] There is also considerable evidence of familiarity with Roman legal terminology, [5] and, despite the unlikelihood of many of the actual situations envisaged in the themes, the argumentation still provides some very interesting parallels to genuine advocacy, as a preparation for which the controversia was originally designed. As Quintilian repeatedly shows, the basic principle involved, and the lines of argument taken, were often the same in declamation and legal practice, and he was perfectly prepared to use school-themes himself, provided that they retained some link with reality. [6]
