Institutio Oratoria

Quintilian

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

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.