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 urged,

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

I do not deny it, but this does not make it a basis. For these statements are not propositions until the reasons for them are added. If they were propositions as they stand, the case could not proceed.

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.

The question is whether this was a justifiable reason, and the basis is one of quality. So too as regards competence.

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.

[*](Disinheritance could only be effected by legal action.) The question here is what is legal action. And we shall arrive at the conclusion that the son's disinheritance is unlawful, by use of the syllogism. [*](See § 15.) The case will be similar with all the rational and legal bases.

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.

That is to say it was not due to me, but some external cause.

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;

v1-3 p.451

and this is the case in almost every defence. Finally he who adopts this line of defence, does not thereby abandon the qualitative basis; for he states that he himself is free from blame, so that we really should differentiate between two kinds of quality [*]( ( A ) Absolute, when the deed is shown to be right. ( B ) Relative, when the act is not defended, but the agent is cleared of the guilt of the act. ) one of which comes into play when both the accused person and his act are defended, and the other when the accused person alone is defended.

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

v1-3 p.453

that there are four different methods which may be employed in every case, and he who is going to plead should study them as first essentials. For, to begin with the defendant, far the strongest method of self-defence is, if possible, to deny the charge. The second best is when it is possible to reply that the particular act with which you are charged was never committed. The third and most honourable is to maintain that the act was justifiable. If none of these lines of defence are feasible, there remains the last and only hope of safety: if it is impossible either to deny the charge or justify the act, we must evade the charge with the aid of some point of law, making it appear that the action has been brought against us illegally