Institutio Oratoria

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.

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.

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

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

An example will make this clearer.

You have killed a man.

I did not kill him.

I have the right to bring this action.

You have not the right.

The following is a similar example.

You ought to be punished.

I ought not.

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

I did not kill him.

I ought to receive some honour.

You ought not.

I ought to receive some honour for killing a tyrant.

You did not kill him.

So, too,

You are not entitled to bring this action,

I have,

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

But,

the case 'I have a right,' 'You have not,' is similar to 'You have killed a man,' 'I was justified in so doing.'

Horatius has committed a crime, for he has killed his sister.

He has not committed a crime, since it was his duty to kill her for mourning the death of an enemy.

You have no right to disinherit, since a person who has been deprived of civil rights is not allowed to take legal action.

I have the right, since disinheriting is not legal action.

I am aware that there have been some who placed competence among rational bases, using as illustrations cases such as,

I killed a man under orders from my general,

I gave the votive offerings in a temple to a tyrant under compulsion,

I deserted owing to the fact that storms or floods or ill health prevented me from rejoining.

From these writers I differ even more widely: for it is not the nature of the legal action itself which is involved in the question of competence, but the cause of the act;

We must therefore accept the view of the authorities followed by Cicero, [*](See § 44.) to the effect that there are three things on which enquiry is made in every case: we ask whether a thing is, that it is, and of that kind it is. Nature herself imposes this upon us. For first of all there must be some subject for the question, since we cannot possibly determine what a thing is, or of what kind it is, until we have first ascertained whether it is, and therefore the first question raised is whether it is. But even when it is clear that a thing is,

it is not immediately obvious what it is. And when we have decided what it is, there remains the question of its quality. These three points once ascertained, there is no further question to ask. These heads cover both definite and indefinite questions. One or more of them is discussed in every demonstrative, deliberative or forensic theme.

These heads again cover all cases in the courts, whether we regard them from the point of view of rational or legal questions. For no legal problem can be settled save by the aid of definition, quality and conjecture.

Those, however, who are engaged in instructing the ignorant will find it useful at first to adopt a slightly less rigid method: the road will not be absolutely straight to begin with, but it will be more open and will provide easier going. I would have them therefore learn above all things

Hence arise those questions of legal action or competence. For there are some things, which, although not laudable in themselves, are yet permitted by law; witness the passage in the Twelve Tables authorising creditors to divide up a debtor's body amongst themselves, a law which is repudiated by public custom. There are also certain things which although equitable are prohibited by law; witness the restrictions placed on testamentary disposition. [*]( e.g. that the legal heir must receive at least a quarter of the property. )

The accuser likewise has four things which he must keep in mind: he must prove that something was done, that a particular act was done, that it was wrongly done, and that he brings his charge according to law. Thus every cause will turn on the same sorts of questions, though the parts of plaintiff and defendant will sometimes be interchanged: for instance in the case of a claim for a reward, it will be the plaintiffs task to show that what was done was right.

These four schemes or forms of action which I then called general bases fall into two classes as I have

Legal questions necessarily have a larger number of species, since there are many laws and a variety of forms. In the case of one law we rely on the letter, in others on the spirit. Some laws we force to serve our turn, when we can find no law to support our case, others we compare with one another, and on others we put some novel interpretation.

Thus from these three bases we get three resemblances of bases: sometimes simple, sometimes complex, but all having a character of their own, as, for instance, when questions of the letter of the law and its intention are involved, for these clearly come under conjecture or quality; or again where the syllogism is involved, for this is specially connected with quality; or where contradictory laws are involved, for these are on the same footing as the letter of the law and intention; or yet again in cases of ambiguity, which is always resolved by conjecture.

Definition also belongs to both classes of question, namely those concerned with the consideration of facts and those concerned with the letter of the law. All these questions, although they come under the three bases, yet since, as I have mentioned, [*](§ 87.) they have certain characteristic features of their own, require to be pointed out to learners; and we must allow them to be called legal bases or questions or minor heads, as long as it is clearly understood that none of them involve any other questions than the three I have mentioned. [*](§ 80.)