Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
We shall do this by considering what the law is which gives rise to the dispute, that is to say under what law the court has been constituted. In scholastic themes, for example, the laws are sometimes stated merely with a view to connecting the arguments of the cases. Take the following case:
A father who recognises a son whom he has exposed in infancy, shall only take him back after paying for his keep. A disobedient son may be disinherited.v7-9 p.15A man who took back a son whom he had exposed orders him to marry a wealthy neighbour. The son desires to marry the daughter of the poor man who brought him up.
The law about children who have been exposed affords scope for emotional treatment, while the decision of the court turns on the law of disinheritance. [*]( The first law is strictly irrelevant to the case, but can be employed by the son to stir the jury's emotions. He owes a deep debt of gratitude to his poor foster-father, and his love for his foster-sister is based on life-long acquaintance. The father, on the other hand, will urge that his payment for his son's nurture has discharged the debt due to the poor man and that his son is once more under the patria potestas. The introduction of the first law thus enables the pleader to introduce fresh arguments and is thus said to link up the arguments. ) On the other hand, a question may turn on more laws than one, as in cases of ἀντινομία or contradictory laws. [*](cp. III. vi. 46. and vii. ) It is by consideration of such points as these that we shall be able to determine the point of law out of which the dispute arises.
As an example of complex defence I may quote the pro Rabirio:
If he had killed him, he would have been justified in so doing: but he did not kill him.But when we advance a number of points in answer to a single proposition, we must first of all consider everything that can be said on the subject, and then decide which out of these points it is expedient to select and where to put them forward. My views on this subject are not identical with those which I admitted a little while ago [*](§ 10.) on the subject of propositions and on that of arguments in the section which I devoted to proofs, [*](v. xii. 14.) to the effect that we may sometimes begin with the strongest.
For when we are defending, there should always be an increase of force in the treatment of questions and we should proceed from the weaker to the stronger, whether the points we raise are of the same or of a different character.
Questions of law will often arise from one ground of dispute after another, whereas questions of fact are always concerned with one point; [*]( This statement amounts to no more than that there may be infinite complication where questions of law are concerned, but questions of fact are simple and there is but one point to be considered, was such and such an act committed? )
This should be done in such a way as to give the impression not that we regard the points as desperate, but that we have deliberately dropped them because we can prove our case without them. Suppose that the agent for a certain person claims the interest on a loan as due under an inheritance. The question may here arise whether such a claim can be made by an agent. [*](See IV. iv. 6.) Assume that, after discussing the question,
we drop it or that the argument is refuted. We then raise the question whether the person in whose name the action is brought has the right to employ an agent. Let us yield this point also. [*](cp. III. 6, 8. ) The case will still admit of our raising the question whether the person in whose name the suit is brought is heir to the person to whom the interest was due and again whether he is sole heir.
Grant these points also and we can still raise the question whether the sum is due at all? On the other hand, no one will be so insane as to drop what he considers his strongest point and pass to others of minor importance. The following case from a scholastic theme is of a similar character.
You may not disinherit your adopted son. And if you may disinherit him quâ adopted son, you may not disinherit one who is so brave. And if you may disinherit one who is so brave, you may not disinherit him because he hasSuch is the nature of dissimilarity where points of law are concerned. Where, however, the question is one of fact, there may be several points all tending to the same result, of which some may be dropped as not essential to the main issue, as for instance if a man accused of theft should say to his accuser,v7-9 p.19not obeyed your every command; and if he was bound to obey you in all else, you may not disinherit him on the ground of his choice of a reward; and even if the choice of a reward may give just ground for disinheriting, that is not true of such a choice as he actually made. [*]( The adopted son has done some heroic deed, bringing him under the scholastic law vir fortis optet quod uolet, Let a hero choose what reward he will ( cp. v. x. 97). A scandalous choice might give ground for disinheriting him (cp. § 24 below), but the choice in question is not scandalous. )
Prove that you had the property, prove that you lost it, prove that it was stolen, prove that it was stolen by me.The first three can be dropped, but not the last. I used also to employ the following method.
I went back from the ultimate species (which generally contains the vital point of the case) to the first general question or descended from the genus to the ultimate species, [*](cp. v. x. 5, 6. The statement man is an animal is insufficient as a definition, animal being the genus. Man is mortal introduces a species, but one common to other animals. Man is rational introduces the ultima species. ) applying this method even to deliberative themes.
For example, Numa is deliberating whether to accept the crown offered him by the Romans. First he considers the general question,
Ought I to be a king?Then,
Ought I to be king in a foreign state? Ought I to be king at Rome? Are the Romans likely to put up with such a king as myself?So too in controversial themes. Suppose a brave man to choose another man's wife as his reward. The ultimate species is found in the question whether lie is allowed to choose another man's wife. The general question is whether he should be given whatever he chooses. Next come questions such as whether he can choose his reward from the property of private individuals, whether he