Institutio Oratoria

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.

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:

the conjectural, definitive, qualitative, quantitative and relative. Theodorus, also, as I have said, [*](§ 36.) adopts the same number of general heads, whether a thing is, what it is, of what kind it is, how great it is, and to what it refers. The last he considers to be chiefly concerned with comparison, since better and worse, greater and less

But questions of relation, as I have already pointed out, enter also into translative questions, that is, questions of competence, since in cases such as

Has this man a right to bring an action?

Is it fitting that he should do such and such a thing, or against this man, or at this time, or in this manner?

Others hold that there are six bases: conjecture or γένεσις, quality, particularity or ἰδιότης by which word they mean definition, quantity or ἀξία, comparison and competence, for which a new term has been found in μετάστασις I call it new when applied to a basis, for Hermagoras employs it to describe a species of juridical question.

Others think there are seven, while refusing to recognise competence, quantity or comparison, in place of which they substitute four legal bases, [*](See § 46.) completing the seven by the addition of those three which they call rational. [*](Conjectural, definitive, qualitative.)

Others again make eight by the addition of competence to the above-mentioned seven. Some on the other hand have introduced a fresh method of division, reserving the name of bases for the rational, and giving the name of questions to the legal, as I mentioned above, [*](§ 46.) since in the former the problem is concerned with facts, in the latter with the letter of the law. Some on the contrary reverse this nomenclature calling the legal questions bases and the rational grounds questions.

But others have thought that there are only three rational bases, covered by the questions whether a thing is, what it is, and of what kind it is? Hermagoras is alone in thinking that there are four, namely conjecture, particularity, competence, and quality: to the latter he

according to its accidents,

secondly those concerned with persons, by which he indicates panegyric: thirdly the practical or pragmatic, which is concerned with things in general without reference to persons, and may be illustrated by questions such as whether he is free who is claimed as a slave and waiting the trial of his case, [*](assertio = a trial in which the question of a person's liberty is involved. When waiting trial, this person is described as in assertiolle. ) whether riches beget insolence, and whether a thing is just or good; lastly there is the juridical species, under which practically the same questions arise, but in relation to certain definite persons, as for instance when it is asked whether that particular man has done well or ill.

I am aware that another explanation is given by Cicero in the first book of his Rhetorica [*](de Inv. i. xi. 14. ) of the species known as practical, where he says that it is

the department under which we consider what is right according to civil usage and equity: this department is regarded by us as the special sphere of the lawyer.

But I have already mentioned [*](de Inv. i. xi. 14. ) what his opinion was about this particular work. The Rhetorica are simply a collection of school-notes on rhetoric which he worked up into this treatise while quite a young man. Such faults as they possess are due to his instructor. In the present instance he may have been influenced by the fact that the first examples given by Hermagoras of this species are drawn from legal questions, or by the fact that the Greeks call interpreters of the law πραγματικοί.

But for these early efforts Cicero