Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
Laws are styled similar when nothing can be opposed to one except the other.
Tyrannicides shall have their statues set up in the gymnasium. A statue of a woman shall not be set up in the gymnasium. A woman killed a tyrant.Here are two conflicting laws: for a woman's statue cannot under any other circumstances be erected in the gymnasium, while there is no other circumstance which can bar the erection of the statue of a tyrannicide in the gymnasium.
Laws are styled dissimilar when many arguments can be urged against one, while the only point which can be urged against the other is the actual subject of dispute. An example is provided by the case in which a brave man demands the pardon of a deserter as his reward. For there are many arguments, as I have shown above, which can be urged against the law permitting a hero to choose whatever reward he will, but the letter of the law dealing with the crime of desertion cannot be overthrown under any
Again, the point of law is either admitted by both parties or disputed. If it be admitted, the questions which are raised will as a rule be such as the following. Which of the two laws is the most stringent? Does it concern gods or men, the state or private individuals, reward or punishment, great things or small? Does it permit, forbid or command?
Another common question is which of the two laws is the oldest; but the most important question is which of the two laws will suffer less by its contravention, as for example in the case of the hero and the deserter just mentioned, in which case, if the deserter is not put to death, the whole law is ignored, whereas, if he be put to death, the hero will still have another choice left open to him. It is, however, of the utmost importance to consider which course is best from the point of view of morality and justice, a problem for the solution of which no general rules can be laid down, as it will depend on the special circumstances of the case.
If, on the other hand, the point of law is disputed, either one party or both in turn will argue the point. Take the following case as an example.
A father shall be empowered to arrest his son, and a patron to arrest his freedman. Freedmen shall be transferred to their patron's heir. A certain man appointed the son of a freedman as his heir. The son of the freedman and the freedman himself both claim the right to arrest the other.Here the father claims his right over the son, while the son, in virtue of his new position as patron, denies that his father possessed the rights of a father, because he was in the power of his patron.
Laws containing two provisions may conflict with themselves in exactly the same way as two laws may conflict. The following will serve as an illustration.
The bastard born before a legitimate son shall rank as legitimate, the bastard born after the legitimate son shall only rank as a citizen.[*](See III. vi. 96.) All that I have said about laws will also apply to decrees of the senate. If decrees of the senate conflict with one another or with the laws, the basis will be the same as if laws only were concerned.
The syllogistic basis [*]( See III. vi. 43 sqq. ) has some resemblance to the basis concerned with the letter and intention of the law, since whenever it comes into play, one party rests his case on the letter: there is, however, this difference between the two bases, that in the latter we argue against the letter, in the present beyond the letter, while in the latter the party defending the letter aims at securing that in any case the letter may be carried into effect, whereas in the present his aim will be to prevent anything except the letter being carried into effect. The syllogism is sometimes employed in conjunction with definition: for often if the definition be weak it takes refuge in the syllogism. Assume a law to run as follows:
A woman who is a poisoner shall be liable to capital punishment. A wife gave her husband a love-potion to cure him of his habit of beating her. She also divorced him. On being asked by her relatives to return to him, she refused. The husband hung himself. The woman is accused of poisoning.The strongest line for the accuser to take will be to assert that the love-potion was a poison. This involves definition. If it proves weak, we shall have recourse to the syllogism, to which we shall proceed after virtually
The syllogistic basis, then, deduces from the letter of the law that which is uncertain; and since this conclusion is arrived at by reason, the basis is called ratiocinative. [*](See in. vi. 43, 61. ) It may be subdivided into the following species of question. If it is right to do a thing once, is it right to do it often? Example:
A priestess found guilty of unchastity is thrown from the Tarpeian rock and survives. It is demanded that she shall be thrown down again.If the law grants a privilege with reference to one thing, does it grant it with reference to a number? Example:
A man kills two tyrants together and claims two rewards.
If a thing is legal before a certain occurrence, is it legal after it? Example:
The ravisher took refuge in flight. His victim married. The ravisher returned and the woman demands to be allowed her choice.[*](i. e. the death of the ravisher, see n. on VII. vii. 3. ) Is that which is lawful with regard to the whole, lawful with regard to a part? Example:
It is forbidden to accept a plough as security. He accepted a ploughshare.Is that which is lawful with regard to a part, lawful with regard to the whole? Example:
It is forbidden to export wool from Tarentum: he exported sheep.
In all these cases the syllogism rests on the letter of the law as well: for the accuser urges that the provisions of the law are precise. He will say,
I demand that the priestess who has broken her vows be cast down: it is the law,or
The ravished woman demands the exercise of theorv7-9 p.153choice permitted her by law,
Wool grows on sheep,and so on.
But to this we may reply,
The law does not prescribe that the condemned woman should be thrown down twice, that the ravished woman should exercise her choice under all circumstances, that the tyrannicide should receive two rewards, while it makes no mention of ploughshares or of sheep.Thus we infer what is doubtful from what is certain. It is a more difficult task to deduce from the letter of the law that which is not actually prescribed by the letter, and to argue because that is the case, so also is this. Take the following problems.
The man who kills his father shall be sewn up in a sack. He killed his mother,or
It is illegal to drag a man from his own house into the court. He dragged him from his tent.
Under this heading come questions such as the following: if there is not a special law applicable to the case, ought we to have recourse to an analogous law? is the point in question similar to what is contained in the letter of the law? Now it should be noted that what is similar may be greater, equal or less. In the first ease we enquire whether the provisions of the law are sufficient, or, if they are insufficient, whether we should have recourse to this other law. In both cases it is a question of the intention of the legislator. But the most effective form of treatment in such cases will be to appeal to equity.
I turn to tile discussion of ambiguity, which will be found to have countless species: indeed, in the opinion of certain philosophers, there is not a single word which has not a diversity of meanings. There are, however, very few genera, since ambiguity must occur either in a single word or in a group of words.
Single words give rise to error, when the same noun applies to a number of things or persons (the Greeks call this homonymy): for example, it is uncertain with regard to the word gallus whether it means a cock or a Gaul or a proper name or an emasculated priest of tybele; while Ajax may refer either to the son of Telamon or the son of Oileus. Again, verbs likewise may have different meanings, as, for example, cerno. [*]( See or decide or separate. )
This ambiguity crops up in many ways, and gives rise to disputes, mole especially in connexion with wills, when two men of the same name claim their freedom or, it may be, an inheritance, or again, when the enquiry turns on the precise nature of the bequest.
There is another form of ambiguity where a word has one meaning when entire and another when divided, as, for example, ingenua, armameniam or Corvinum. [*](Inyenua, a freeborn woman; in genua, on to the knees. Armamentum, equipment; arma mentum, arms, chin. Corvinum, ace. of name Corvinus; cor vimium, heart, wine. ) The disputes arising from such ambiguities are no more than childish quibbles, but nevertheless the Greeks are in the habit of making them the subject for controversial themes, as, for example, in the notorious case of the αὐλητρίς, when the question is whether it is a hall which has fallen down three times ( αὔλη τρίς ) or a flute-player who fell down that is to be sold.
A third form of ambiguity is caused by the use of compound words; for example, if a man orders his body to be buried in a cultivated spot, and should direct, as is often done, a considerable space of land surrounding his tomb to be taken from the land left to his heirs with a view to preserving his ashes from outrage, an occasion for dispute may be afforded by the question whether the words mean
in a cultivated place( in culto loco ) or
in an uncultivated place( inculto loco ).
Thus arises the Greek theme
Or it may arise from the arrangement of the words,
- I say that you, O prince of Aeacus' line,
- Rome can o'erthrow.
which makes it doubtful what the exact reference of some word or words may be, more especially when there is a word in the middle of the sentence which may be referred either to what precedes or what follows, as in the line of Virgil [*](Aen. i. 477. ) which describes Troilus as
where it may be disputed whether the poet means that he is still holding the reins, or that, although he holds the reins, he is still dragged along.
- lora tenens tamen,
The controversial theme,
A certain man in his will ordered his heirs to erect statuam auream hastam tenentem,'turns on a similar ambiguity; for it raises the question whether it is the statue holding the spear which is to be of gold, or whether the spear should be of gold and the statue of some other material. The same result is even more frequently produced by a mistaken inflexion of the voice, as in the line:
- quinquaginta uhi erant centum inde occidit Achilles. [*](Achilles slew fifty out of a hundred,ora hundred out of fifty. Translated from a Greek line in Arist. Soph. El. i. 4. ( πεντήκοντ᾽ ἀνδρῶν ἑκατὸν λίπε δῖος ). Quinquaginta is the object of occidit. Faulty reading might make it go with ubi erant, leaving centum as the object of occidit, and making nonsense of the line. )