Institutio Oratoria

But in the great majority of cases the questions raised are, which claimant has the strongest

Next we may take cases concerned with guardianship, in which it is usual to enquire whether it is necessary to investigate anything save the accounts, and whether anything can be demanded of the guardian except the honest execution of his trust; his sagacity and the success of his administration being beside the mark. Cases of fraud on the part of an agent, which are styled cases of conduct of business when they occur in the actual courts, are of a similar nature, since they also are concerned with the administration of a trust.

In addition to these we have the fictitious cases of the schools which deal with crimes not covered by the law, where the question is as a rule either whether the crime is really not covered by the law or whether it is a crime, though on rare occasions both questions are raised. Cases of misconduct on the part of an ambassador are of frequent occurrence among the Greeks, even in actual life: in these the legal question is raised whether it is lawful to deviate at all from one's instructions and for how long the accused was technically an ambassador, since in some cases the ambassador's duty is to convey a communication to a foreign power and in others to bring one back. Take for example the case of Heius, who gave evidence against Verres after performing his duties as ambassador. But in such cases the most important question turns on the nature of the deed complained

of Next come cases of action contrary to the interests of the state. In these we meet with legal quibbles as to what is the meaning of

action contrary to the

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interests of the state,

If it has not been repaid, does this necessarily involve ingratitude? Was it in his power to repay? Did he really owe the return which was demanded of him? What is his intention? Somewhat simpler are cases of unjust divorce, a form of controversy which has this peculiarity, that the accuser defends and the defendant accuses. [*](i.e. the divorced wife defends her character, while the husband attacks her character. )

Further there are cases where a senator sets forth to the senate the reasons which determine him to commit suicide, [*]( Based on a law of Massilia, where the state provided poison for the would-be suicide, provided he could justify himself before the senate. ) in which there is one legal question, namely, whether a man who desires to kill himself in order to escape the clutches of the law ought to be prevented from so doing, while the remaining questions are all concerned with quality. There are also fictitious cases concerned with wills, in which the only question raised is one of quality, as, for instance, in the controversial theme quoted above, [*](VII. i. 38.) where the philosopher, physician and orator all claim the fourth share which their father had left to the most worthy of his sons. The same is true of cases where suitors of equal rank claim the hand of an orphan and the question confronting her relatives is which is the most suitable.

I do not, however, intend to discuss every possible theme,

Quantity also, as I have already stated, [*](§ 16.) falls as a rule, though not always, under the head of quality, whether it is concerned with measure or number. Measure, however, sometimes consists in the valuation of a deed with a view to determining the amount of guilt or the amount of benefit involved, while, on the other hand, it sometimes turns on a point of law, when the dispute is under what law a man is to be punished or rewarded.

For example is a ravisher to pay 10,000 sesterces [*](cp. IV. ii. 69. ) because that is the penalty appointed by law, or is he liable to capital punishment as a murderer because his victim hanged himself? In such cases those who plead as if there were a question between two laws, are wrong: for there is no dispute about the fine of 10,000, since it is not claimed by the prosecution.

The point on which judgment has to be delivered is whether the accused is guilty of causing his victim's death. The same type of case will also bring conjecture into play, when, for example, the question in dispute is whether the accused shall be punished with banishment for life or for five years. For the question then is whether he caused his death willingly or not.

Again, there are questions concerned with numerical quantity which turn on a point of law, such as the questions whether thirty

V. He who neither denies nor defends his act nor asserts that it was of a different nature from that alleged, must take his stand on some point of law that tells in his favour, a form of defence which generally turns on the legality of the action brought against him.

This question is not, however, as some have held, always raised before the commencement of the trial, like the elaborate deliberations of the praetor when there is a doubt as to whether the prosecutor has any legal standing, but frequently comes up during the course of the actual trial. Such discussions fall into two classes, according as the point in dispute arises from an argument advanced by the prosecution or from some prescription [*](cp. III. vi. 72. ) (or demurrer) put forward by the defence. There have indeed been some writers who have held that there is a special prescriptive basis; but prescription is covered by precisely the same questions that cover all other laws.

When the dispute turns on prescription, there is no need to enquire into the facts of the case itself. For example, a son puts forward a demurrer against his father on the ground that his father has forfeited his civil rights. The only point which has to be decided is whether the demurrer can stand. Still, wherever possible, we should attempt to create a favourable impression in the judge as to the facts of the case as well, since, if this be done, he will be all the more disposed to give an indulgent hearing

On tile other hand, the question more frequently turns on intention. Take the law [*](i.e. an imaginary law of the schools of rhetoric. )

Let a hero choose what reward he will.