Institutio Oratoria

Quintilian

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

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

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substituted his splendid de Oratore and therefore cannot be blamed for giving false instruction. I will now return to Hermagoras. He was the first rhetorician to teach that there was a basis concerned with competence, although the elements of this doctrine are found in Aristotle, [*](Rhet. II. xv. 8. ) without however any mention of the name.

The legal questions were according to Hermagoras of five kinds. First the letter of the law and its intention; the names which he gives to these are κατὰ ῥητόν and ὑπεξαίρεσις, that is to say the letter of the law and the exceptions thereto: the first of these classes is found in all writers, but the term exception is less in use. The number is completed by the ratiocinative basis and those dealing with ambiguity and contradictory laws.