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[13] Others have thought that the basis lay in the first point raised by the other side in its defence. Cicero1 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.

1 Top. xxv. 93.

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