Institutio Oratoria

In this case those paragons of eloquence, who laugh at us because we trouble our heads about cases that rarely occur, will always assume the popular rôle. They will defend the uneducated against the eloquent son, the brave against the coward, the son who secured the recall of his kin against the ungrateful son, the son who is content with a portion of the inheritance against the son who would refuse his brother a share in their patrimony.

All these points are actually to be found in the case and are of considerable importance, but they are not such as to render victory a certainty. In such a case they will, as far as possible, search for daring or obscure reflexions (for to-day obscurity is accounted a virtue), and they will think they have given the theme a brilliant treatment by ranting and raving over it. Those, on the other hand, whose ideals are higher, but who restrict themselves merely to the obvious, will note

The uneducated son may be excused for not appearing at the trial on the ground that he could contribute nothing to his father's defence: but even the orator has no claim on the gratitude of the accused, since the latter was condemned: [*](Sc. in spite of his own eloquence. ) the man who secured the recall of his kin deserves to receive the inheritance, while the man who refuses to divide it with his brother, more especially with a brother who has deserved so well of him, is avaricious, unnatural and ungrateful: they will further note that the first and essential question is that which turns on the letter and intention of the law; unless this is first disposed of, all subsequent arguments must fall to the ground.

He, however, who follows the guidance of nature will assuredly reflect as follows: the first argument of the uneducated son will be,

My father died intestate and left two sons, my brother and myself; I claim a share in his estate by the law of nations.

He will then proceed to extol, though with due moderation, the justice of this common law of nations. The next point for our consideration is what reply can be made to so equitable a demand? The answer is clear:—

There is a law which disinherits the man who fails to appear in his father's defence when the latter is accused of treason, and you failed to appear.

So far we have been dealing entirely with

If the law bars the way, there is no ground for action and the trial becomes a farce. But it is beyond question that the law exists and that the uneducated son did commit the offence for which it enacts a punishment.

I had no education.

But if the law applies to all men, it will be of no avail to plead lack of education. We must therefore try to discover whether there be not some point on which the law can be invalidated. We turn for guidance to nature (a point on which I cannot insist too often); what does she suggest save that when the letter of the law is against us, we should discuss its intention? This introduces the general question whether we are to stand by the letter or the spirit. But if we argue this question on general grounds with reference to law in the abstract, we shall go on for ever; it is a question that has never been decided. We must therefore restrict our enquiry to the particular law on which our case turns and try to find some argument against adhesion to the strict letter.

Well, then, is everyone who fails to appear in defence of his father to be disinherited? Are there no exceptions to the rule? At this point the following arguments will spontaneously suggest themselves.

Is an infant liable to the law?

does the law apply to a man who was away from home or absent on military service or on an embassy?

Our declaimer, who has thought out this line of argument, must now pass over like a Latin flute-player, as Cicero says, [*](Pro Mur. xii. 26. The flute-player went from one actor to another, according as each required accompaniment. ) to the side of the eloquent son and reply,

Granted, but you are not an infant, you were not away from home nor absent on military service.

I am an uneducated man

But to this there is the obvious retort,

Even if you could not actually plead, you might have supported him by your presence,

He wished to punish unfilial conduct, but I am not unfilial.

To this the eloquent son will reply,

The action whereby you deserved disinheritance was unfilial, although penitence or desire for display may have subsequently led you to choose this as your reward. Further, it was owing to you that our father was condemned, since by absenting yourself you appeared to imply that you thought him guilty.

Nay, you contributed to his condemnation, for you had given offence to many and made our family unpopular.

Let us pursue the matter further and see if we can discover any additional arguments. How is that to be done? I am deliberately imitating the actual train of thought of one

Why should we not try asking whether this means that he is to be disinherited, whatever the character of the father for whom he failed to appear? Such a course is often adopted in those controversial themes in which we demand that sons who fail to maintain their parents should be cast into prison: take for example the case of the mother who gave evidence against her son when accused of being an alien, or of the father who sold his son to a procurer. What, then, is there in the present case that we lay hold of as regards the character of the father?

He was condemned. But does the law apply only to those cases where the father is acquitted? At first sight the question is difficult. But let us not despair. It is probable that the intention of the legislator was that innocent parents should secure the support of their children. But the uneducated son will be ashamed to produce this argument, since he acknowledges that his father was innocent.

There is, however, another line of argument which may be drawn from the enactment that the person condemned for treason should be banished together with his advocate. It seems almost impossible that in one and the same case a son should incur a penalty,

For how can an exile hold any property? The uneducated son raises a doubt as to the interpretation both of the letter and the spirit of the law. Tile eloquent son will cling to the strict letter of tile law, which makes no exception, and will argue that the reason for enacting a penalty against those who fail to appear for their fathers was to prevent their being deterred from the defence of their fathers by the risk of banishment, and he will assert that his brother failed to appear in defence of his innocent father. It may therefore be worth while pointing out that two general questions may arise out of one basis — [*]( III. vi. 1 sqq. The basis or main point on which the case turns is that of the intention of the law ( voluntas ). ) for we may ask,

Is everyone who fails to appear liable to disinheritance?

Is he bound to appear irrespective of the character of his father?

So far all our questions have been derived from two of the persons involved. [*](i. e. the father and the uneducated son. ) With regard to the third, this can give rise to no question, as there is no dispute about his portion of the inheritance. Still the time is not yet come to relax our efforts: for so far all the arguments might have been used even if the father had not been recalled from exile. But we must not betake ourselves at once to the obvious point that he was recalled by the agency of the uneducated son. A little ingenuity will lead us to look further a field: for as species comes after genus, so genus precedes species. Let us therefore assume that the father was recalled by someone else. This will give rise

Our next point will be that which first occurred to us, namely the plea that he was recalled by the agency of the uneducated son. At this point we are confronted by the question whether the son who secured his father's restoration is thereby to be regarded in the light of an advocate, since he secured for him precisely what his original advocate demanded for him, and it is not an unreasonable claim to ask that an action should be regarded as equivalent when it is really more than equivalent.

The remaining points turn on questions of equity, for we ask which of the two sons makes the juster claim. This question admits of still further division. The claim of the uneducated son would have been the juster even if both had claimed the whole property. How much more so when one claims only a half and the other the whole to the exclusion of his brother. And then, even after we have dealt with all these points, an appeal to the memory of his father will carry great weight with the judges, more especially as the dispute is about the father's estate. This will give rise to conjecture as to what the intentions

As a rule questions of equity are best introduced at the conclusion of a case, since there is nothing to which the judges give more ready hearing. Sometimes, however, the interests of the case demand a change in this order; for example if we regard our case as weak in point of law, it will be well to secure the good-will of the judge by dealing with the question of equity first.