Institutio Oratoria

Quintilian

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

To meet this argument

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it is necessary to discover in what respect this case differs from others which are concerned with property that has fallen into the hands of the victor: the difficulty moreover lies not so much in the proof as in the way it should be put forward. We may begin by stating that the rights of war do not hold good in any matter which can be brought before a court of justice, and that what is taken by force of arms can only be retained by force of arms, and consequently, wherever the rights of war hold good, there is no room for the functions of a judge, while on the contrary where the functions of the judge come into play, the rights of war cease to have any force.

The reason why it is necessary to discover this principle is to enable us to bring the following argument into play: that prisoners of war are free on returning to their native land just because the gains of war cannot be retained except by the exercise of the same violence by which they were acquired. Another peculiar feature of the case is that it is tried before the Amphictyonic council, [*](cp. § 118. The Amphictyonic Council of Delphi in the fourth century B.C. had come to be an international council, in which the great majority of the states of Greece were represented. ) and you will remember that we have to employ different methods in pleading a case before the centumviral court and before an arbitrator, though the problems of the cases may be identical.

Secondly we may urge that the right to refuse payment could not have been conferred by the victor because he possesses only what he holds, but a right, being incorporeal, cannot be grasped by the hand. [*](i.e. a right can only be transferred by the possessor, not by force or seizure. ) It is more difficult to discover this principle than, once discovered, to defend it with arguments such as that the position of an heir and a conqueror are fundamentally different, since right passes to the one and property to the other.

It is further an

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argument peculiar to the subject matter of the case that the right over a public debt could not have passed to the victor, because the repayment of a sum of money lent by a whole people is due to them all, and as long as any single one of them survives, he is creditor for the whole amount: but the Thebans were never all of them to a man in Alexander's power.