Institutio Oratoria

Quintilian

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

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.

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

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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.

You have no right to disinherit, since a person who has been deprived of civil rights is not allowed to take legal action.

I have the right, since disinheriting is not legal action.

[*](Disinheritance could only be effected by legal action.) The question here is what is legal action. And we shall arrive at the conclusion that the son's disinheritance is unlawful, by use of the syllogism. [*](See § 15.) The case will be similar with all the rational and legal bases.

I am aware that there have been some who placed competence among rational bases, using as illustrations cases such as,

I killed a man under orders from my general,

I gave the votive offerings in a temple to a tyrant under compulsion,

I deserted owing to the fact that storms or floods or ill health prevented me from rejoining.

That is to say it was not due to me, but some external cause.

From these writers I differ even more widely: for it is not the nature of the legal action itself which is involved in the question of competence, but the cause of the act;

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and this is the case in almost every defence. Finally he who adopts this line of defence, does not thereby abandon the qualitative basis; for he states that he himself is free from blame, so that we really should differentiate between two kinds of quality [*]( ( A ) Absolute, when the deed is shown to be right. ( B ) Relative, when the act is not defended, but the agent is cleared of the guilt of the act. ) one of which comes into play when both the accused person and his act are defended, and the other when the accused person alone is defended.

We must therefore accept the view of the authorities followed by Cicero, [*](See § 44.) to the effect that there are three things on which enquiry is made in every case: we ask whether a thing is, that it is, and of that kind it is. Nature herself imposes this upon us. For first of all there must be some subject for the question, since we cannot possibly determine what a thing is, or of what kind it is, until we have first ascertained whether it is, and therefore the first question raised is whether it is. But even when it is clear that a thing is,

it is not immediately obvious what it is. And when we have decided what it is, there remains the question of its quality. These three points once ascertained, there is no further question to ask. These heads cover both definite and indefinite questions. One or more of them is discussed in every demonstrative, deliberative or forensic theme.

These heads again cover all cases in the courts, whether we regard them from the point of view of rational or legal questions. For no legal problem can be settled save by the aid of definition, quality and conjecture.

Those, however, who are engaged in instructing the ignorant will find it useful at first to adopt a slightly less rigid method: the road will not be absolutely straight to begin with, but it will be more open and will provide easier going. I would have them therefore learn above all things

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that there are four different methods which may be employed in every case, and he who is going to plead should study them as first essentials. For, to begin with the defendant, far the strongest method of self-defence is, if possible, to deny the charge. The second best is when it is possible to reply that the particular act with which you are charged was never committed. The third and most honourable is to maintain that the act was justifiable. If none of these lines of defence are feasible, there remains the last and only hope of safety: if it is impossible either to deny the charge or justify the act, we must evade the charge with the aid of some point of law, making it appear that the action has been brought against us illegally

Hence arise those questions of legal action or competence. For there are some things, which, although not laudable in themselves, are yet permitted by law; witness the passage in the Twelve Tables authorising creditors to divide up a debtor's body amongst themselves, a law which is repudiated by public custom. There are also certain things which although equitable are prohibited by law; witness the restrictions placed on testamentary disposition. [*]( e.g. that the legal heir must receive at least a quarter of the property. )

The accuser likewise has four things which he must keep in mind: he must prove that something was done, that a particular act was done, that it was wrongly done, and that he brings his charge according to law. Thus every cause will turn on the same sorts of questions, though the parts of plaintiff and defendant will sometimes be interchanged: for instance in the case of a claim for a reward, it will be the plaintiffs task to show that what was done was right.

These four schemes or forms of action which I then called general bases fall into two classes as I have

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shown, [*]( § 67, and III. v. 4. ) namely, the rational and the legal. The rational is the simpler, as it involves nothing more than the consideration of the nature of things. In this connection, therefore, a mere mention of conjeclure, definition and quality will suffice.

Legal questions necessarily have a larger number of species, since there are many laws and a variety of forms. In the case of one law we rely on the letter, in others on the spirit. Some laws we force to serve our turn, when we can find no law to support our case, others we compare with one another, and on others we put some novel interpretation.

Thus from these three bases we get three resemblances of bases: sometimes simple, sometimes complex, but all having a character of their own, as, for instance, when questions of the letter of the law and its intention are involved, for these clearly come under conjecture or quality; or again where the syllogism is involved, for this is specially connected with quality; or where contradictory laws are involved, for these are on the same footing as the letter of the law and intention; or yet again in cases of ambiguity, which is always resolved by conjecture.

Definition also belongs to both classes of question, namely those concerned with the consideration of facts and those concerned with the letter of the law. All these questions, although they come under the three bases, yet since, as I have mentioned, [*](§ 87.) they have certain characteristic features of their own, require to be pointed out to learners; and we must allow them to be called legal bases or questions or minor heads, as long as it is clearly understood that none of them involve any other questions than the three I have mentioned. [*](§ 80.)

As regards questions of quantity, number, relation, and, as some have thought, comparison, the

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case is different. For these have no connexion with the complexities of the law, but are concerned with reason only. Consequently they must always be regarded as coming under conjecture or quality, as, for instance, when we ask with what purpose, or at what time, or place something was done.

But I will speak of individual questions when I come to handle the rules for division. [*](Book VII.) This much is agreed to by all writers, that one cause possesses one basis, but that as regards secondary questions related to the main issue of the trial, there may frequently be a number in one single cause.