But I cannot bear to be thought guilty of concealment of the truth as regards any portion of my views, more especially in a work designed for the profit of young men of sound disposition. For Hippocrates, Epidem V. 14. the great physician, in my opinion took the most honourable course in acknowledging some of his errors to prevent those who came after from being led astray, while Cicero had no hesitation about condemning some of his earlier works in books which he published later: I refer to his condemnation of his Lucullus and Catulus The two books of the first edition of the Academica. and the books i.e. the Rhetorica, better known as de Inventione. on rhetoric which I have already mentioned.

Indeed we should have no justification for protracting our studies if we were forbidden to improve upon our original views. Still none of my past teaching was superfluous: for the views which I am now going to produce will be found to be based on the same principles, and consequently no one need be sorry to have attended my lectures, since all that I am now attempting to do is to collect and rearrange my original views so that they may be somewhat more instructive. But I wish to satisfy everybody and not to lay myself open to the accusation that I have allowed a long time to elapse between the formation and publication of my views.

I used to follow the majority of authorities in adhering to three rational bases, the conjectural, qualitative and definitive, and to one legal basis. See III. v. 4. These were my general bases. The legal basis I divided into five species, dealing with the letter of the law and intention, contradictory laws, the syllogism, ambiguity and competence.

It is now clear to me that the fourth of the general bases may be removed, since the original division which I made into rational and legal bases is sufficient. The fourth therefore will not be a basis, but a kind of question; if it were not, it would form one of the rational bases.

Further I have removed competence from those which I called species. For I often asserted, as all who have attended my lectures will remember, and even those discourses which were published against my will See I. Proem. 7. included the statement, that the basis concerned with competence hardly ever occurs in any dispute under such circumstances that it cannot more correctly be given some other name, and that consequently some rhetoricians exclude it from their list of bases.

I am, however, well aware that the point of competence is raised in many cases, since in practically every case in which a party is said to have been ruled out of court through some error of form, questions such as the following arise: whether it was lawful for this person to bring an action, or to bring it against some particular person, or under a given law, or in such a court, or at such a time, and so on

But the question of competence as regards persons, times, legal actions and the rest originates in some pre-existent cause: the question turns therefore not on competence itself, but on the cause with which the point of competence originates. You ought to demand the return of a deposit not before the praetor but before the consuls, as the sum is too large to come under the praetor's jurisdiction. The question then arises whether the sum is too large, and the dispute is one

of fact. You have no right to bring an action against me, as it is impossible for you to have been appointed to represent the actual plaintiff. It then has to be decided whether he could have been so appointed. You ought not to have proceeded by interdict, sc. by getting an order for restitution. but to have put in a plea for possession. The point in doubt is whether the interdict is legal. All these points fall under the head of legal questions.

not even those special pleas, in which questions of competence make themselves most evident, give rise to the same species of question as those laws under which the action is brought, so that the enquiry is really concerned with the name of a given act, e. g. murder or manslaughter: sacrilege or theft. with the letter of the law and its meaning, or with something that requires to be settled by argument? The basis originates from the question, and in cases of competence it is not the question concerning which the advocate argues that is involved, but the question on account of which he argues. See § 70.

An example will make this clearer. You have killed a man. I did not kill him. The question is whether he has killed him; the basis is the conjectural. But the following case is very different. I have the right to bring this action. You have not the right. The question is whether he has the right, and it is from this that we derive the basis. For whether he is allowed the right or not depends on the event, not on the cause itself, and on the decision of the judge, not on that on account of which he gives such a decision.

The following is a similar example. You ought to be punished. I ought not. The judge will decide whether he should be punished, but it is not with this that the question or the basis is concerned. Where then does the question lie? You ought to be punished, for you have killed a man. I did not kill him. The question is whether he killed him. I ought to receive some honour. You ought not. Does this involve a basis? I think not. I ought to receive some honour for killing a tyrant. You did not kill him. Here there is a question and a basis sc. the conjectural. as well.

So, too, You are not entitled to bring this action, I have, involves no basis. Where then is it to be found? You have no right to bring this action, because you have been deprived of civil rights. In this case the question is whether he has been so deprived, or whether loss of civil rights debars a person from bringing an action. Here on the other hand we find both questions and bases. sc. the conjectural or definitive basis and the qualitative. It is therefore to kinds of causes, not to bases that the term competence applies: other kinds of cause are the comparative and the recriminatory. See III. x. 3 and 4.

But, it is urged, the case 'I have a right,' 'You have not,' is similar to 'You have killed a man,' 'I was justified in so doing.' I do not deny it, but this does not make it a basis. For these statements are not propositions until the reasons for them are added. If they were propositions as they stand, the case could not proceed. Horatius has committed a crime, for he has killed his sister. He has not committed a crime, since it was his duty to kill her for mourning the death of an enemy. The question is whether this was a justifiable reason, and the basis is one of quality. So too as regards competence.

You have no right to disinherit, since a person who has been deprived of civil rights is not allowed to take legal action. I have the right, since disinheriting is not legal action.Disinheritance could only be effected by legal action. The question here is what is legal action. And we shall arrive at the conclusion that the son's disinheritance is unlawful, by use of the syllogism. See § 15. The case will be similar with all the rational and legal bases.

I am aware that there have been some who placed competence among rational bases, using as illustrations cases such as, I killed a man under orders from my general, I gave the votive offerings in a temple to a tyrant under compulsion, I deserted owing to the fact that storms or floods or ill health prevented me from rejoining. That is to say it was not due to me, but some external cause.

From these writers I differ even more widely: for it is not the nature of the legal action itself which is involved in the question of competence, but the cause of the act; and this is the case in almost every defence. Finally he who adopts this line of defence, does not thereby abandon the qualitative basis; for he states that he himself is free from blame, so that we really should differentiate between two kinds of quality ( A ) Absolute, when the deed is shown to be right. ( B ) Relative, when the act is not defended, but the agent is cleared of the guilt of the act. one of which comes into play when both the accused person and his act are defended, and the other when the accused person alone is defended.

We must therefore accept the view of the authorities followed by Cicero, See § 44. to the effect that there are three things on which enquiry is made in every case: we ask whether a thing is, that it is, and of that kind it is. Nature herself imposes this upon us. For first of all there must be some subject for the question, since we cannot possibly determine what a thing is, or of what kind it is, until we have first ascertained whether it is, and therefore the first question raised is whether it is. But even when it is clear that a thing is,

it is not immediately obvious what it is. And when we have decided what it is, there remains the question of its quality. These three points once ascertained, there is no further question to ask. These heads cover both definite and indefinite questions. One or more of them is discussed in every demonstrative, deliberative or forensic theme.

These heads again cover all cases in the courts, whether we regard them from the point of view of rational or legal questions. For no legal problem can be settled save by the aid of definition, quality and conjecture.

Those, however, who are engaged in instructing the ignorant will find it useful at first to adopt a slightly less rigid method: the road will not be absolutely straight to begin with, but it will be more open and will provide easier going. I would have them therefore learn above all things that there are four different methods which may be employed in every case, and he who is going to plead should study them as first essentials. For, to begin with the defendant, far the strongest method of self-defence is, if possible, to deny the charge. The second best is when it is possible to reply that the particular act with which you are charged was never committed. The third and most honourable is to maintain that the act was justifiable. If none of these lines of defence are feasible, there remains the last and only hope of safety: if it is impossible either to deny the charge or justify the act, we must evade the charge with the aid of some point of law, making it appear that the action has been brought against us illegally