Institutio Oratoria

Quintilian

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

Both the disinherited and the bastard will object,

You cannot re-enter the family, for our father did not die childless.

But in this connexion each will rely on his own particular question. For the disinherited son will say that even a disinherited man does not cease

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to be a son, and will derive an argument from that very law which denies his claim to the inheritance; namely that it was unnecessary for a disinherited son to be excluded from possession of his father's property if he had ceased to be one of the family; but now, since in virtue of his rights as son he would have been his father's heir if he had died intestate, the law is brought to bar his claim; and yet the law does not deprive him of his position as son, but only of his position as heir. Here the basis is definitive, as turning on the definition of a son.

Again the bastard in his turn will urge that his father did not die childless, employing the same arguments that he had used in putting forward his claim that he ranked as a son; unless indeed he too has recourse to definition, and raises the question whether even bastards are not sons. Thus in one case we shall have either two special legal bases, namely the letter of the law and intention, with the syllogism and also definition, or those three [*](See § 82.) which are really the only bases strictly so called, conjecture as regards the letter of the law and intention, quality in the syllogism, [*](See § 88.) and definition, which needs no explanation.

Further every kind of case will contain a cause, a point for the decision of the judge, and a central argument. [*](For discussion of these technical terms see chap. xi.) For nothing can be said which does not contain a reason, something to which the decision of the judge is directed, and finally something which, more than aught else, contains the substance of the matter at issue. But as these vary in different cases and are as a rule explained by writers on judicial causes, I will postpone them to the appropriate portion of my work. For the present I shall follow the order which I prescribed by my division [*](Chaps. iii. and iv.) of causes into three classes.

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