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 point on which judgment has to be delivered is whether the accused is guilty of causing his victim's death. The same type of case will also bring conjecture into play, when, for example, the question in dispute is whether the accused shall be punished with banishment for life or for five years. For the question then is whether he caused his death willingly or not.

Again, there are questions concerned with numerical quantity which turn on a point of law, such as the questions whether thirty

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rewards are due to Thrasybulus, [*](i.e. for his overthrow of the thirty tyrants; cp. II. vi. 26. ) or whether, when two thieves have stolen a sum of money, they are each to be required to refund fourfold or twofold. But in these cases, too, valuation of the act is necessary, and yet the point of law also turns on quality.

V. He who neither denies nor defends his act nor asserts that it was of a different nature from that alleged, must take his stand on some point of law that tells in his favour, a form of defence which generally turns on the legality of the action brought against him.

This question is not, however, as some have held, always raised before the commencement of the trial, like the elaborate deliberations of the praetor when there is a doubt as to whether the prosecutor has any legal standing, but frequently comes up during the course of the actual trial. Such discussions fall into two classes, according as the point in dispute arises from an argument advanced by the prosecution or from some prescription [*](cp. III. vi. 72. ) (or demurrer) put forward by the defence. There have indeed been some writers who have held that there is a special prescriptive basis; but prescription is covered by precisely the same questions that cover all other laws.

When the dispute turns on prescription, there is no need to enquire into the facts of the case itself. For example, a son puts forward a demurrer against his father on the ground that his father has forfeited his civil rights. The only point which has to be decided is whether the demurrer can stand. Still, wherever possible, we should attempt to create a favourable impression in the judge as to the facts of the case as well, since, if this be done, he will be all the more disposed to give an indulgent hearing

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to our point of law: for example, in actions taking the form of a wager and arising out of interdicts, [*](sponsio (= wager) was a form of suit in which the litigant promised to pay a sum of money if he lost his case. The interdict was an order issued by the praetor commanding or prohibiting certain action. It occurred chiefly in disputes about property. ) even though the question is concerned solely with actual possession, the question as to tile right to possession not being raised, it will be desirable to prove not merely that the property was actually in our possession, but that it was ours to possess.

On tile other hand, the question more frequently turns on intention. Take the law [*](i.e. an imaginary law of the schools of rhetoric. )

Let a hero choose what reward he will.

I deny that he is entitled to receive whatever he chooses. I cannot put forward any formal demurrer, but none the less I use the intention as against the letter of the law just as I should use a demurrer. In both cases the basis is the same.