Institutio Oratoria

Quintilian

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

Further I have removed competence from those which I called species. For I often asserted, as all who have attended my lectures will remember, and even those discourses which were published against my will [*](See I. Proem. 7.) included the

v1-3 p.445

statement, that the basis concerned with competence hardly ever occurs in any dispute under such circumstances that it cannot more correctly be given some other name, and that consequently some rhetoricians exclude it from their list of bases.

I am, however, well aware that the point of competence is raised in many cases, since in practically every case in which a party is said to have been ruled out of court through some error of form, questions such as the following arise: whether it was lawful for this person to bring an action, or to bring it against some particular person, or under a given law, or in such a court, or at such a time, and so on

But the question of competence as regards persons, times, legal actions and the rest originates in some pre-existent cause: the question turns therefore not on competence itself, but on the cause with which the point of competence originates.

You ought to demand the return of a deposit not before the praetor but before the consuls, as the sum is too large to come under the praetor's jurisdiction.

The question then arises whether the sum is too large, and the dispute is one

of fact.

You have no right to bring an action against me, as it is impossible for you to have been appointed to represent the actual plaintiff.

It then has to be decided whether he could have been so appointed.

You ought not to have proceeded by interdict, [*](sc. by getting an order for restitution. ) but to have put in a plea for possession.

The point in doubt is whether the interdict is legal. All these points fall under the head of legal questions.

not even those special pleas, in which questions of competence make themselves most evident, give rise to the same species of question as those laws under which the action is brought, so that the enquiry is

v1-3 p.447

really concerned with the name of a given act, [*](e. g. murder or manslaughter: sacrilege or theft. ) with the letter of the law and its meaning, or with something that requires to be settled by argument? The basis originates from the question, and in cases of competence it is not the question concerning which the advocate argues that is involved, but the question on account of which he argues. [*](See § 70.)

An example will make this clearer.

You have killed a man.

I did not kill him.

The question is whether he has killed him; the basis is the conjectural. But the following case is very different.

I have the right to bring this action.

You have not the right.

The question is whether he has the right, and it is from this that we derive the basis. For whether he is allowed the right or not depends on the event, not on the cause itself, and on the decision of the judge, not on that on account of which he gives such a decision.

The following is a similar example.

You ought to be punished.

I ought not.

The judge will decide whether he should be punished, but it is not with this that the question or the basis is concerned. Where then does the question lie?

You ought to be punished, for you have killed a man.

I did not kill him.

The question is whether he killed him.

I ought to receive some honour.

You ought not.

Does this involve a basis? I think not.

I ought to receive some honour for killing a tyrant.

You did not kill him.

Here there is a question and a basis [*](sc. the conjectural. ) as well.

So, too,

You are not entitled to bring this action,

I have,

involves no basis. Where then is it to be found?

You have no right to bring this action, because you have been deprived of civil rights.

In this case the question is whether he has been so deprived, or whether loss of civil rights debars a person from

v1-3 p.449

bringing an action. Here on the other hand we find both questions and bases. [*]( sc. the conjectural or definitive basis and the qualitative. ) It is therefore to kinds of causes, not to bases that the term competence applies: other kinds of cause are the comparative and the recriminatory. [*](See III. x. 3 and 4.)