Institutio Oratoria

Pamplihlus held this opinion but subdivided quality into several different species. The majority of later writers have classified bases as follows, involving however no more than a change of names:— those dealing with ascertained facts and those dealing with matters where there is a doubt. For a thing must either be certain or uncertain: if it is uncertain, the basis will be conjectural; if certain, it will be some one of the other bases.

Apollodorus says the same thing when he states that a question must either lie in things external, [*](e.g. circumstantial evidence. ) which give play to conjecture, or in our own opinions: the former he calls πραγματικός the latter περὶ ἐννοίας The same is said by those who employ the terms ἀπροληπτὸς [*](ἀπροληπτός lit. = unpresumed. ) and προληπτικός, that is to say doubtful and presumptive, by this latter term meaning those facts which are beyond a doubt.

Theodorus agrees with them, for he holds that the question is either as to whether such and such a thing is really so, or is concerned with the accidents of something which is an admitted fact: that is to say it is either περὶ οὐσίας or περὶ συμβεβηκότων For in all these cases the first basis is conjectural, while the second belongs to one of the other classes. As for these other classes of basis, Apollodorus holds that there are two, one concerned with quality and the other with the names of things, that is to say a definitive basis. Theodorus makes them four, concerned with existence, quality, quantity and relation.

There are some too who make questions of identity and difference come under the head of quality, others who place it under the head

Even Cornelius Celsus stated that there were two general bases, one concerned with the question whether a thing is, the other with the question of what kind it is. He included definition under the first of these, because enquiry may equally be made as to whether sacrilege has been committed, when a man denies that he has stolen anything from a temple, and when he admits that he has stolen private money from a temple. He divides quality into fact and the letter of the law. Under the head of the letter of the law he places four classes, excluding questions of competence: [*](cp. § 23; translatio and exceptio are virtually identical. The four classes are Intention, Ambiguity, Contradictory Laws, Syllogism. ) quantity and intention he places under the head of conjecture. [*](i.e. the conjectural basis concerned with questions of fact. )

There is also another method of dividing bases into two classes: according to this disputes are either about substance or quality, while quality is treated either in its most general sense or in its special senses.

Substance is dealt with by conjecture: for in enquiring into anything, we ask whether it has been done, is being done, or is likely to be done, and sometimes also consider its intention: this method is preferable to that adopted by those who style the conjectural basis a basis of fact, as though we only enquired into the past and what has

The consideration of quality under its most general aspect rarely comes up in the courts; I refer to questions such as

whether that is honourable which is generally praised.

These bases are said to contain others as well, because quantity is sometimes concerned with conjectural bases, as in the question whether the sun is bigger than the earth, and sometimes with qualitative bases, as in the question what reward or punishment it would be just to assign to some particular person, while questions of competence undoubtedly are concerned with quality, and definition with questions of competence. [*]( See § 11 and the case cited in 38, where the accused would argue that he was guilty not of sacrilege, but of simple theft. )

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.