Institutio Oratoria

Quintilian

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

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.