Institutio Oratoria

But the laws governing these cases sometimes admit of other bases. For example, conjecture is involved in quite a number of such cases, as when the accused urges either that he did not commit the act or, if he did, acted with the best intentions. I could quote many examples of this kind. Again, it is definition which tells us what precisely is meant by lunacy or cruelty to a wife. [*]( The general sense of 25 and 26 is clear. These cases do not always come under the status qualitatis: they not infrequently come under the status coniecturalis and finitivus. They cannot however, strictly be said to come under the states legalis, since although the leges of such scholastic themes do involve certain questions of law, these are not such as to constitute the status legally. Still in the last resort such cases may be argued on legal grounds. The text adopted for the last sentence of 25 is that which involves the least change, but it is highly obscure and the corruption may well lie deeper still. For the whole question of bases, which is highly technical, see III, vi. ) For as a rule the laws cited in such themes involve certain legal questions, though not to such an extent as to determine the basis of the case.

But this notwithstanding, if the actual fact cannot be defended, we may in the last resort base our defence on legal grounds, in which case we shall consider how many and what cases there are in which a father may not disinherit his son, what charges fail to justify an action for cruelty, and under what circumstances a son is not allowed to accuse his father of lunacy.

Disinheritance may be of two kinds. In the first case it is for a completed crime: for example, the son who is disinherited may be a ravisher or an adulterer: in the second case it is for a crime which is still incomplete and terminable [*]( Literally conditional. The sense, however, is that the disinheritance is only conditional on the disobedience being continued. ) ; an instance of this will be the case where the son is disinherited because of disobedience to his father. The first form of disinheritance always demands a certain harshness when the father pleads his case, since the act is irrevocable, whereas in the latter his pleading will be of a kindly and almost persuasive nature, since he would prefer not to disinherit him. On the other hand, the pleading of the sons should in both cases be of a subdued character and couched in a conciliatory tone.

I know that those who delight in making covert attacks upon the father under the disguise of some figure of speech will disagree with me: and I would not deny that their procedure may sometimes be justifiable, since the theme may conceivably be such as to demand it; but it is certainly to be avoided wherever possible. However, I shall deal with the whole question of figures in a later book. [*](Book IX. See especially IX. ii. 65 sqq.)