Institutio Oratoria

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

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.

The following is a similar example.

You ought to be punished.

I ought not.

The judge will decide whether he should be punished, but it is not with this that the question or the basis is concerned. Where then does the question lie?

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

I did not kill him.

The question is whether he killed him.

I ought to receive some honour.

You ought not.

Does this involve a basis? I think not.

I ought to receive some honour for killing a tyrant.

You did not kill him.

Here there is a question and a basis [*](sc. the conjectural. ) as well.

So, too,

You are not entitled to bring this action,

I have,

involves no basis. Where then is it to be found?

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

In this case the question is whether he has been so deprived, or whether loss of civil rights debars a person from bringing an action. Here on the other hand we find both questions and bases. [*]( sc. the conjectural or definitive basis and the qualitative. ) It is therefore to kinds of causes, not to bases that the term competence applies: other kinds of cause are the comparative and the recriminatory. [*](See III. x. 3 and 4.)

But,

it is urged,

the case 'I have a right,' 'You have not,' is similar to 'You have killed a man,' 'I was justified in so doing.'

I do not deny it, but this does not make it a basis. For these statements are not propositions until the reasons for them are added. If they were propositions as they stand, the case could not proceed.

Horatius has committed a crime, for he has killed his sister.

He has not committed a crime, since it was his duty to kill her for mourning the death of an enemy.

The question is whether this was a justifiable reason, and the basis is one of quality. So too as regards competence.