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