Institutio Oratoria

Quintilian

Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.

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

v7-9 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?

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?

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.

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,

v7-9 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.

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 — [*]( III. vi. 1 sqq. The basis or main point on which the case turns is that of the intention of the law ( voluntas ). ) 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?

So far all our questions have been derived from two of the persons involved. [*](i. e. the father and the uneducated son. ) 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 species. Let us therefore assume that the father was recalled by someone else. This will give rise

v7-9 p.43
to a question of the ratiocinative or syllogistic type, [*](cp. III. vi. 15, 43, 46, 51; vii. viii. 1. ) 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. [*]( The reward to be chosen, it is argued, covered the recall of one person only. The only means by which both father and son could be recalled was by the restoration of the father, whose amnesty would ipso facto extend to the son as well. )