Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
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?'But since, when we are said to have been justified in doing anything, this does not merely mean that our action was legal, but further implies that it was just, those who follow Antonius attempt to differentiate these bases with greater exactness. They therefore called them conjectural, legal and juridical, a division which meets with the approval of Verginius as well.
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.