Institutio Oratoria

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.)

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

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.