Institutio Oratoria

Quintilian

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

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

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his errors to prevent those who came after from being led astray, while Cicero had no hesitation about condemning some of his earlier works in books which he published later: I refer to his condemnation of his Lucullus and Catulus [*]( The two books of the first edition of the Academica. ) and the books [*](i.e. the Rhetorica, better known as de Inventione. ) on rhetoric which I have already mentioned.

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

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statement, that the basis concerned with competence hardly ever occurs in any dispute under such circumstances that it cannot more correctly be given some other name, and that consequently some rhetoricians exclude it from their list of bases.

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.

The question then arises whether the sum is too large, and the dispute is one

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.

It then has to be decided whether he could have been so appointed.

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

The point in doubt is whether the interdict is legal. All these points fall under the head of legal questions.

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

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really concerned with the name of a given act, [*](e. g. murder or manslaughter: sacrilege or theft. ) with the letter of the law and its meaning, or with something that requires to be settled by argument? The basis originates from the question, and in cases of competence it is not the question concerning which the advocate argues that is involved, but the question on account of which he argues. [*](See § 70.)

An example will make this clearer.

You have killed a man.

I did not kill him.

The question is whether he has killed him; the basis is the conjectural. But the following case is very different.

I have the right to bring this action.

You have not the right.

The question is whether he has the right, and it is from this that we derive the basis. For whether he is allowed the right or not depends on the event, not on the cause itself, and on the decision of the judge, not on that on account of which he gives such a decision.