Institutio Oratoria

Quintilian

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

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?

For we may imagine a case where the son is an infant and has failed to appear in his father's support. Again

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

We have gained a considerable amount of ground; for we

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have established the fact that a man may fail to appear for his father and still inherit.

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.

Is there any answer to this except the previous reply,

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,

which is no more than the simple truth. The uneducated son must therefore return to the intention of the legislator.

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.

The uneducated son replies,

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

These arguments are based on conjecture, as also will be the excuse put forward by the uneducated son to the effect that his father advised his absence, as he did not wish to emperil his whole family. All these arguments are involved in the preliminary question as to the letter and the intention of the law.

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

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who is engaged in such an enquiry with a view to showing how such enquiry should be conducted. I shall therefore put aside the more showy kind of composition, and concern myself solely with such as may be of real profit to the student. So far we have derived all our questions from the character of the claimant. But why should we not make some enquiries into the character of the father? Does not the law say that whoever fails to appear for his father is to be disinherited?

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,

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both if he appeared in his father's defence and if he did not appear. Further, exiles are outlaws. Therefore the letter of the law cannot conceivably apply to the advocate of the condemned man.

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

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to a question of the ratiocinative or syllogistic type, [*](cp. III. vi. 15, 43, 46, 51; vii. viii. 1. ) namely whether recall from exile cancels the sentence of the court and is tantamount to the trial never having taken place at all. The uneducated son will therefore attempt to argue that, being entitled to not more than one reward, there was no means by which he could have secured the recall of his kin save by the restoration of his father on the same terms as if he had never been accused, and that this fact carries with it the cancellation of the penalty incurred by his advocate, as though he had never defended his father at all. [*]( The reward to be chosen, it is argued, covered the recall of one person only. The only means by which both father and son could be recalled was by the restoration of the father, whose amnesty would ipso facto extend to the son as well. )

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

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of the father were at the time of his dying intestate. This conjecture, however, involves a question of quality, and is employed in the service of a different basis. [*](i.e. qualitative, cp. III. vi. 43. )

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.