Institutio Oratoria

Quintilian

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

Similarly all the topics of demonstrative [*]( See III. iv. 12 sqq. ) oratory involve a qualitative basis.

v7-9 p.107

The facts are admitted, and the question turns on their quality, the dispute being entirely concerned with rewards or penalties or their quantity. The case is therefore of two kinds, simple or comparative, the former dealing with what is just, the latter with what is juster, or most just. When the point for decision is the penalty to be inflicted, the duty of the pleader will be to defend, extenuate or excuse the act on which the charge is based, or even, according to some, to plead for mercy.

By far the strongest line that can be taken in defence is to assert that the act which forms the subject of the charge is actually honourable. A man is disinherited because he went on military service, stood for office or married without his father's consent. We defend this act. This form of defence is called κατ᾽ ἀντίληψιν by the followers of Hermagoras, that is, defence by objection, the term being used with reference to the purport of the defendant's plea. [*](ἀντίληψις is the technical term for this form of defence which turns not on the facts, but on the justice of the case. The meaning of ad intellectum id nomen referentes is obscure. If the words are correct (and no satisfactory correction seems possible), their meaning must be that the defence turns not on the act, but on its significance and equity. If any change is made in the text, the simplest course is to delete the words as a gloss which has crept into the text. ) I can find no exact Latin translation of the term; we call it an absolute defence. But in such cases the question is concerned with the justice or injustice of the act alone.