Institutio Oratoria

Quintilian

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

But it is clear to everybody that one law cannot contradict another in principle (since if there were two different principles, one law would cancel the other), and that the laws in question are brought into collision purely by the accidents of chance. When two laws clash, they may be of a similar nature, as for instance if we have to compare two cases in which a tyrannicide and a brave man are given the choice of their reward, both being granted the privilege of choosing whatever they desire. In such a case we compare the deserts of the claimants, the occasions of the respective acts and the nature of the rewards claimed.

Or the same law may be in conflict with itself, as in the case where we have two brave men, [*](Both claiming the reward allotted by the law.) two tyrannicides [*](Both claiming the reward allotted by the law.) or two ravished women, [*]( Two women, both dishonoured by one man, put in different claims, both of which are provided for as alternatives in the same law. A. demands the ravisher's death, B. demands his hand in marriage. ) when the question must turn either on time (that is, whose claim has priority) or on quality (that is, whose claim is the more just). Again, we may have a conflict between diverse, similar or dissimilar laws.

Diverse laws are those against which arguments

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may be brought without reference to any contradictory law. The following theme will provide an example.

A magistrate shall not quit the citadel. One who has rendered heroic service to his country may choose what reward he pleases. A magistrate who left his post and saved his country, demands an amnesty for his conduct.

In this case, even though there be no other law covering the case, we may raise the question whether a hero ought to be granted anything he chooses to claim. Again, many conclusive arguments may be brought against the letter of the law restricting the movements of the magistrate: for example, a fire may have broken out in the citadel, or a sally against the enemy may have been necessary.

Laws are styled similar when nothing can be opposed to one except the other.

Tyrannicides shall have their statues set up in the gymnasium. A statue of a woman shall not be set up in the gymnasium. A woman killed a tyrant.

Here are two conflicting laws: for a woman's statue cannot under any other circumstances be erected in the gymnasium, while there is no other circumstance which can bar the erection of the statue of a tyrannicide in the gymnasium.

Laws are styled dissimilar when many arguments can be urged against one, while the only point which can be urged against the other is the actual subject of dispute. An example is provided by the case in which a brave man demands the pardon of a deserter as his reward. For there are many arguments, as I have shown above, which can be urged against the law permitting a hero to choose whatever reward he will, but the letter of the law dealing with the crime of desertion cannot be overthrown under any

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circumstances save the choice of rewards to which I have just referred.

Again, the point of law is either admitted by both parties or disputed. If it be admitted, the questions which are raised will as a rule be such as the following. Which of the two laws is the most stringent? Does it concern gods or men, the state or private individuals, reward or punishment, great things or small? Does it permit, forbid or command?

Another common question is which of the two laws is the oldest; but the most important question is which of the two laws will suffer less by its contravention, as for example in the case of the hero and the deserter just mentioned, in which case, if the deserter is not put to death, the whole law is ignored, whereas, if he be put to death, the hero will still have another choice left open to him. It is, however, of the utmost importance to consider which course is best from the point of view of morality and justice, a problem for the solution of which no general rules can be laid down, as it will depend on the special circumstances of the case.

If, on the other hand, the point of law is disputed, either one party or both in turn will argue the point. Take the following case as an example.

A father shall be empowered to arrest his son, and a patron to arrest his freedman. Freedmen shall be transferred to their patron's heir. A certain man appointed the son of a freedman as his heir. The son of the freedman and the freedman himself both claim the right to arrest the other.

Here the father claims his right over the son, while the son, in virtue of his new position as patron, denies that his father possessed the rights of a father, because he was in the power of his patron.

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Laws containing two provisions may conflict with themselves in exactly the same way as two laws may conflict. The following will serve as an illustration.

The bastard born before a legitimate son shall rank as legitimate, the bastard born after the legitimate son shall only rank as a citizen.

[*](See III. vi. 96.) All that I have said about laws will also apply to decrees of the senate. If decrees of the senate conflict with one another or with the laws, the basis will be the same as if laws only were concerned.

The syllogistic basis [*]( See III. vi. 43 sqq. ) has some resemblance to the basis concerned with the letter and intention of the law, since whenever it comes into play, one party rests his case on the letter: there is, however, this difference between the two bases, that in the latter we argue against the letter, in the present beyond the letter, while in the latter the party defending the letter aims at securing that in any case the letter may be carried into effect, whereas in the present his aim will be to prevent anything except the letter being carried into effect. The syllogism is sometimes employed in conjunction with definition: for often if the definition be weak it takes refuge in the syllogism. Assume a law to run as follows:

A woman who is a poisoner shall be liable to capital punishment. A wife gave her husband a love-potion to cure him of his habit of beating her. She also divorced him. On being asked by her relatives to return to him, she refused. The husband hung himself. The woman is accused of poisoning.

The strongest line for the accuser to take will be to assert that the love-potion was a poison. This involves definition. If it proves weak, we shall have recourse to the syllogism, to which we shall proceed after virtually

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dropping our previous argument, and which we shall employ to decide the question whether she does not deserve to be punished for administering the lovepotion no less than if she had caused her husband's death by poison.

The syllogistic basis, then, deduces from the letter of the law that which is uncertain; and since this conclusion is arrived at by reason, the basis is called ratiocinative. [*](See in. vi. 43, 61. ) It may be subdivided into the following species of question. If it is right to do a thing once, is it right to do it often? Example:

A priestess found guilty of unchastity is thrown from the Tarpeian rock and survives. It is demanded that she shall be thrown down again.

If the law grants a privilege with reference to one thing, does it grant it with reference to a number? Example:

A man kills two tyrants together and claims two rewards.

If a thing is legal before a certain occurrence, is it legal after it? Example:

The ravisher took refuge in flight. His victim married. The ravisher returned and the woman demands to be allowed her choice.

[*](i. e. the death of the ravisher, see n. on VII. vii. 3. ) Is that which is lawful with regard to the whole, lawful with regard to a part? Example:

It is forbidden to accept a plough as security. He accepted a ploughshare.

Is that which is lawful with regard to a part, lawful with regard to the whole? Example:

It is forbidden to export wool from Tarentum: he exported sheep.

In all these cases the syllogism rests on the letter of the law as well: for the accuser urges that the provisions of the law are precise. He will say,

I demand that the priestess who has broken her vows be cast down: it is the law,

The ravished woman demands the exercise of the
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choice permitted her by law,

Wool grows on sheep,

and so on.

But to this we may reply,

The law does not prescribe that the condemned woman should be thrown down twice, that the ravished woman should exercise her choice under all circumstances, that the tyrannicide should receive two rewards, while it makes no mention of ploughshares or of sheep.

Thus we infer what is doubtful from what is certain. It is a more difficult task to deduce from the letter of the law that which is not actually prescribed by the letter, and to argue because that is the case, so also is this. Take the following problems.

The man who kills his father shall be sewn up in a sack. He killed his mother,

It is illegal to drag a man from his own house into the court. He dragged him from his tent.

Under this heading come questions such as the following: if there is not a special law applicable to the case, ought we to have recourse to an analogous law? is the point in question similar to what is contained in the letter of the law? Now it should be noted that what is similar may be greater, equal or less. In the first ease we enquire whether the provisions of the law are sufficient, or, if they are insufficient, whether we should have recourse to this other law. In both cases it is a question of the intention of the legislator. But the most effective form of treatment in such cases will be to appeal to equity.