Institutio Oratoria

Quintilian

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

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

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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

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

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shown, [*]( § 67, and III. v. 4. ) namely, the rational and the legal. The rational is the simpler, as it involves nothing more than the consideration of the nature of things. In this connection, therefore, a mere mention of conjeclure, definition and quality will suffice.

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.)

As regards questions of quantity, number, relation, and, as some have thought, comparison, the

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case is different. For these have no connexion with the complexities of the law, but are concerned with reason only. Consequently they must always be regarded as coming under conjecture or quality, as, for instance, when we ask with what purpose, or at what time, or place something was done.

But I will speak of individual questions when I come to handle the rules for division. [*](Book VII.) This much is agreed to by all writers, that one cause possesses one basis, but that as regards secondary questions related to the main issue of the trial, there may frequently be a number in one single cause.

I also think there is at times some doubt as to which basis should be adopted, when many different lines of defence are brought to meet a single charge; and, just as in regard to the complexion to be given to the statement of the facts of the case, that complexion is said to be the best which the speaker can best maintain, so in the present connexion I may say that the best basis to choose is that which will permit the orator to develop a maximum of force.

It is for this reason that we find Cicero and Brutus taking up different lines in defence of Milo. Cicero says that Clodius was justifiably killed because he sought to waylay Milo, but that Milo had not designed to kill him; while Brutus, who wrote his speech merely as a rhetorical exercise, also exults that Milo has killed a bad citizen.

In complicated causes, however, two or three bases may be found, or different bases: for instance a man may plead that he did not do one thing, and that he was justified in doing another, or to take another similar class of case, a man may deny two of the charges.

The same thing occurs when there is a question about some one thing which is claimed by a number

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of persons, who may all of them rely on the same kind of plea (for instance, on the right of the next of kin), or may put in different claims, one urging that the property was left him by will, another that he is next of kin. Now whenever a different defence has to be made against different claimants, there must be different bases, as for example the well-known controversial theme:

Wills that are made in accordance with law shall be valid. When parents die intestate, their children shall be the heirs. A disinherited son shall receive none of his father's property. A bastard, if born before a legitimate son, shall be treated as legitimate, but if born after a legitimate son shall be treated merely as a citizen. It shall be lawful to give a son in adoption. Every son given in adoption shall have the right to re-enter his own family if his natural father has died childless. A father of two legitimate sons gave one in adoption, disinherited the other, and acknowledged a bastard, who was born to him later. Finally after making the disinherited son his heir he died. All three sons lay claim to the property.

Nothbus is the Greek word for a bastard; Latin, as Cato emphasized in one of his speeches, has no word of its own and therefore borrows the foreign term. But I am straying from the point.

The son who was made heir by the will finds his way barred by the law

A disinherited son shall receive none of his father's property.

The basis is one resting on the letter of the law and intention, and the problem is whether he can inherit by any means at all? can he do so in accordance with the intention of his father? or in virtue of the fact that he was made heir by the will? The problem confronting the bastard is twofold, since he was born after the two legitimate sons

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and was not born before a legitimate son.

The first problem involves a syllogism: are those sons who have been cast out from their own family to be regarded as though they had never been born? The second is concerned with the letter of the law and intention. For it is admitted that he was not born before any legitimate son, but he will defend his claim by appealing to the intention of the law, which he will maintain to imply that the bastard, born when there was no legitimate son in the family, should rank as legitimate.

He will dismiss the letter of the law, pointing out that in any case the position of a bastard is not prejudiced by the fact that no legitimate son was born after him, and arguing as follows:—

Suppose that the only son is a bastard, what will his position be? Merely that of a citizen? and yet he was not born after any legitimate son. Or will he rank as a son in all respects? But he was not born before the legitimate sons. As it is impossible to stand by the letter of the law we must stand by its intentions.

It need disturb no one that one law should originate two bases. The law is twofold, and therefore has the force of two laws. [*](101) To the son who desires to re-enter the family, the disinherited's first reply is,

Even though you are allowed to re-enter the family, I am still the heir.

The basis will be the same as in the claim put forward by the disinherited son, since the question at issue is whether a disinherited son can inherit.

Both the disinherited and the bastard will object,

You cannot re-enter the family, for our father did not die childless.

But in this connexion each will rely on his own particular question. For the disinherited son will say that even a disinherited man does not cease

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to be a son, and will derive an argument from that very law which denies his claim to the inheritance; namely that it was unnecessary for a disinherited son to be excluded from possession of his father's property if he had ceased to be one of the family; but now, since in virtue of his rights as son he would have been his father's heir if he had died intestate, the law is brought to bar his claim; and yet the law does not deprive him of his position as son, but only of his position as heir. Here the basis is definitive, as turning on the definition of a son.

Again the bastard in his turn will urge that his father did not die childless, employing the same arguments that he had used in putting forward his claim that he ranked as a son; unless indeed he too has recourse to definition, and raises the question whether even bastards are not sons. Thus in one case we shall have either two special legal bases, namely the letter of the law and intention, with the syllogism and also definition, or those three [*](See § 82.) which are really the only bases strictly so called, conjecture as regards the letter of the law and intention, quality in the syllogism, [*](See § 88.) and definition, which needs no explanation.