Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
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.I deny that he is entitled to receive whatever he chooses. I cannot put forward any formal demurrer, but none the less I use the intention as against the letter of the law just as I should use a demurrer. In both cases the basis is the same.
Moreover every law either gives or takes away punishes or commands, forbids or permits, and involves a dispute either on its own account or on account of another law, while the question which it involves will turn either on the letter or the intention. The letter is either clear or obscure or ambiguous.
And what I say with reference to laws will apply equally to wills, agreements, contracts and every form of document; nay, it will apply even to verbal agreements. And since I have classified such cases under four questions or bases, I will deal with each in turn.
Lawyers frequently raise the question of the letter and the intention of the law, in fact a large proportion of legal disputes turn on these points. We need not therefore be surprised that such questions occur in the schools as well, where they are often invented with this special purpose. One form of this kind of question is found in cases where tile enquiry turns both on the letter and the spirit
Such questions arise when the law presents some obscurity. Under these circumstances both parties will seek to establish their own interpretation of the passage and to overthrow that advanced by their opponent. Take for example the following case.
A thief shall refund four times the amount of his theft. Two thieves have jointly stolen 10,000 sesterces. 40,000 are claimed from each. They claim that they are liable only to pay 20,000 each.The accuser will urge that the sum which he claims is fourfold the amount stolen; the accused will urge that the sum which they offer to pay is fourfold. The intention of the law will be pleaded by both parties.
On the other hand, the dispute may turn on a passage of the law which is clear in one sense and doubtful in another.
The son of a harlot shall not address the people. A woman who had a son became a prostitute. The youth is forbidden to address the people.Here there is no doubt about the son of one who was a prostitute before his birth, but it is doubtful whether the law applies to the case of one born before his mother became a prostitute.
Another question which is not infrequently raised is as to the interpretation of the law forbidding an action to be brought twice on the same dispute, the problem being whether the word twice refers to the prosecutor or the prosecution. Such are the points arising out of the obscurity of the law. A second form of question turns on some passage where the meaning is clear. Those who have given exclusive attention to this class of question call it the basis concerned with the obvious expression of the law and its intention. In such circumstances one party will rest their case on the letter, the other
There are three different methods in which we may combat the letter. The first comes into play where it is clear that it is impossible always to observe the letter of the law.
Children shall support their parents under penalty of imprisonment.It is clear, in the first place, that this cannot apply to an infant. At this point we shall turn to other possible exceptions and distinguish as follows.
Does this apply to everyone who refuses to support his parent? Has this particular individual incurred the penalty by this particular act?
The second arises in scholastic themes where no argument can be drawn from the particular law, but the question is concerned solely with the subject of the dispute.
A foreigner who goes up on to the wall shall be liable to capital punishment. The enemy had scaled the wall and were driven back by a foreigner. His punishment is demanded.
In this case we shall not have two separate questions, namely, whether every foreigner who goes up on the wall is liable to the penalty, and whether this particular foreigner is liable, since no more forcible argument can be brought against the application of the letter of the law than the fact in dispute, but the only question to be raised will be whether a foreigner may not go on to the wall even for the purpose of saving the city. Therefore we shall rest our case on equity and the intention of the law. It is, however, sometimes possible to draw examples from other laws to show that we cannot always stand by the letter, as Cicero did in his defence of Caecina.
The third method becomes operative when we find something in the actual words of the law which enables us to prove that the intention of the legislator was different.
Anyone who is caught at night with steel in his hands shall be thrown into prison. A man is found wearing a steel ring, and is imprisoned by the magistrate.In this case the use of the word caught is sufficient proof that the word steel was only intended by the law in the sense of a weapon of offence.
But just as the advocate who rests his case on the intention of the law must wherever possible impugn the letter of the law, so he who defends the letter of the law must also seek to gain support from the intention. Again, in cases concerned with wills it sometimes happens that the intention of the testator is clear, though it has not been expressed in writing: an example of this occurs in the trial of Curius, which gave rise to the well-known argument between Lucius Crassus and Scaevola.
A second heir had been appointed in the event of a posthumous son dying while a minor. No posthumous son was born. The next of kin claimed the property. Who could doubt that the intention of the testator was that the same man should inherit in the event of the son not being born who would have inherited in the event of his death? But he had not written this in his will.