Institutio Oratoria

Quintilian

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

The whole dispute turns on the allegation that Alexander had excused the Thessalians from payment of the debt. It is also admitted that the Thessalians had received no money from Alexander. The question is therefore whether his gift is equivalent to his having given them money.

What use will formal topics of argument be in such a case, unless I first convince myself that the gift of Alexander made no difference, that he had not the power to make it, and that he did not make it? The opening of the Thebans' plea presents no difficulty and is likely to win the approval of the judges, since they are seeking to recover by right what was taken from them by force. But out of this point arises a violent controversy as to the right of war, since the Thessalians urge that kingdoms and peoples and the frontiers of nations and cities depend upon these rights.

To meet this argument

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it is necessary to discover in what respect this case differs from others which are concerned with property that has fallen into the hands of the victor: the difficulty moreover lies not so much in the proof as in the way it should be put forward. We may begin by stating that the rights of war do not hold good in any matter which can be brought before a court of justice, and that what is taken by force of arms can only be retained by force of arms, and consequently, wherever the rights of war hold good, there is no room for the functions of a judge, while on the contrary where the functions of the judge come into play, the rights of war cease to have any force.