Institutio Oratoria

ratiocinative basis or syllogism[*]( When we argue that a certain case comes under a certain law. cp. § 15. ) and the majority of questions dealing with the letter of the law and intention are based on equity, with the exception that this last question sometimes admits of conjecture as, for instance, concerning the intentions of the legislator: ambiguity, however, must always be explained by conjecture, because as it is clear that the words admit of two interpretations the only question is as to the intention.

A large number of writers recognise general bases; Cicero adopts them in his Orator, [*](Or. xiv. 45. ) and holds that everything that can form the subject of dispute or discussion is covered by the three questions, whether

Marcus Antonius stated that there were three bases in the following words:—

The things which form the ground of every speech are few and are as follows:—' Was a thing done or not done? 'Was it just or unjust?' 'Was it good or bad?'

These they then subdivided into species, placing definition under the head of the legal basis, together with all others which are concerned with the letter of the law: such as that of contradictory laws, or ἀντινομία that which rests on the letter of the law and on meaning or intention (which the Greeks call κατὰ ῥητὸν καὶ διάνοιαν and μετάληψις to which latter we give various names, styling it the translative, transumptive or transpositive basis [*](Concerned with questions of competence.) ; the syllogism, which we call the ratiocinative or deductive basis; and those which turn on ambiguity or ἀμφιβολία. I mention these because they are called bases by most writers, though some prefer to call them legal questions.

Athenaeus laid down that there were four bases: the προτρεπτικὴ or παρορμητική, that is, the hortative, which is peculiar to deliberative themes; the συντελική [*](συντελική lit. = contributory. ) which is shown to be the conjectural, not so much from the name itself, but from what

For, as I have said, there is a great variety in the names employed. There are some who, arguing from its meaning of change, hold that ὑπαλλακτική is the translative basis, which is concerned with competence. Others, Caecilius [*](Caec. fr. 49, Burkh.) and Theon for instance, hold that there are the same number of bases, but make them of a different kind, namely, those covered by the questions whether a thing is, what it is, of what kind it is and how great it is.

Aristotle [*]( Ar. Rhet. 1416 b : 1374 a . ) in his Rhetoric states that all enquiry turns on the questions whether a thing is, of what kind it is, how great it is, and of how many parts it consists. In one place however he recognises the force of definition as well, saying that certain points are defended on the following lines:—

I took it, but did not steal it.

I struck him, but did not commit an assault.

Cicero [*](de Inv. I. viii. 10. ) again in his Rhetorica makes the number of bases to be four, namely those concerned with fact, names, kinds, and legal action, that is to say conjecture is concerned with fact, definition with names, quality with kinds, and law with action: under this latter head of law he included questions of competence. But in another passage he treats [*](Part. Or. 31 and 38. ) legal questions as a species of action. Some writers have held that there are five bases: