Institutio Oratoria

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

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.

Albutius adopts this classification, but eliminates competence, including it under the juridical basis. Further he holds that in legal questions there is no ratiocinative basis. I know that those who are prepared to read ancient writers on rhetoric more carefully than I have, will be able to discover yet more on this subject, but I fear that I may have been too lengthy even in saying what I have said.

I must admit that I am now inclined to take a different view from that which I once held. It would perhaps be safer for my reputation if I were to make no modification in views which I not only held for so many years, but of which I expressed my open approbation.

But I cannot bear to be thought guilty of concealment of the truth as regards any portion of my views, more especially in a work designed for the profit of young men of sound disposition. For Hippocrates, [*](Epidem V. 14. ) the great physician, in my opinion took the most honourable course in acknowledging some of

Indeed we should have no justification for protracting our studies if we were forbidden to improve upon our original views. Still none of my past teaching was superfluous: for the views which I am now going to produce will be found to be based on the same principles, and consequently no one need be sorry to have attended my lectures, since all that I am now attempting to do is to collect and rearrange my original views so that they may be somewhat more instructive. But I wish to satisfy everybody and not to lay myself open to the accusation that I have allowed a long time to elapse between the formation and publication of my views.

I used to follow the majority of authorities in adhering to three rational bases, the conjectural, qualitative and definitive, and to one legal basis. [*](See III. v. 4.) These were my general bases. The legal basis I divided into five species, dealing with the letter of the law and intention, contradictory laws, the syllogism, ambiguity and competence.

It is now clear to me that the fourth of the general bases may be removed, since the original division which I made into rational and legal bases is sufficient. The fourth therefore will not be a basis, but a kind of question; if it were not, it would form one of the rational bases.

Further I have removed competence from those which I called species. For I often asserted, as all who have attended my lectures will remember, and even those discourses which were published against my will [*](See I. Proem. 7.) included the

I am, however, well aware that the point of competence is raised in many cases, since in practically every case in which a party is said to have been ruled out of court through some error of form, questions such as the following arise: whether it was lawful for this person to bring an action, or to bring it against some particular person, or under a given law, or in such a court, or at such a time, and so on

But the question of competence as regards persons, times, legal actions and the rest originates in some pre-existent cause: the question turns therefore not on competence itself, but on the cause with which the point of competence originates.

You ought to demand the return of a deposit not before the praetor but before the consuls, as the sum is too large to come under the praetor's jurisdiction.

of fact.

You have no right to bring an action against me, as it is impossible for you to have been appointed to represent the actual plaintiff.

You ought not to have proceeded by interdict, [*](sc. by getting an order for restitution. ) but to have put in a plea for possession.

not even those special pleas, in which questions of competence make themselves most evident, give rise to the same species of question as those laws under which the action is brought, so that the enquiry is

An example will make this clearer.

You have killed a man.

I did not kill him.

I have the right to bring this action.

You have not the right.

The following is a similar example.

You ought to be punished.

I ought not.

You ought to be punished, for you have killed a man.

I did not kill him.

I ought to receive some honour.

You ought not.

I ought to receive some honour for killing a tyrant.

You did not kill him.

So, too,

You are not entitled to bring this action,

I have,

You have no right to bring this action, because you have been deprived of civil rights.