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III.1‑5

This webpage reproduces a section of
Institutio Oratoria

by
Quintilian

published in Vol. I
of the Loeb Classical Library edition, 1920

The text is in the public domain.

This page has been carefully proofread
and I believe it to be free of errors.
If you find a mistake though,
please let me know!


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III.7‑11

(Vol. I) Quintilian
Institutio Oratoria

Book III

Chapter 6

6 128 Since every cause, then, has a certain essential basis29 on which it rests, before I proceed to set forth how each kind of cause should be handled, I think I p409should first examine a question that is common to all of them, namely, what is meant by basis, whence it is derived and how many and of what nature such bases may be. Some, it is true, have thought that they were peculiar merely to forensic themes, but their ignorance will stand revealed when I have treated of all three kinds of oratory. 2 That which I call the basis some style the constitution, others the question, and others again that which may be inferred from the question, while Theodorus calls it the most general head, κεφάλαιον γενικώτατον, to which everything must be referred. These different names, however, all mean the same thing, nor is it of the least importance to students by what special name things are called, as long as the thing itself is perfectly clear. 3 The Greeks call this essential basis στάσις, a name which they hold was not invented by Hermagoras, but according to some was introduced by Naucrates, the pupil of Isocrates, according to others by Zopyrus of Clazomenae, although Aeschines in his speech against Ctesiphon30 seems to employ the word, when he asks the jury not to allow Demosthenes to be irrelevant but to keep him to the stasis or basis or case. 4 The term seems to be derived from the fact that it is on it that the first collision between the parties to the dispute takes place, or that it forms the basis or standing of the whole case. So much for the origin of the name. Now for its nature. Some have defined the basis as being the first conflict of the causes. The idea is correct, but the expression is faulty. 5 For the essential basis is not the first conflict, which we may represent by the clauses "You did such and such a thing" and "I did not do it." It is rather the kind of question which arises from the first conflict, p411which we may represent as follows. "You did it," "I did not," "Did he do it?", or "You did this," "I did not do this," "What did he do?" It is clear from these examples, that the first sort of question depends on conjecture, the second on definition, and that the contending parties rest their respective cases on these points: the bases of these questions will therefore be of a conjectural or definitive character respectively. 6 Suppose it should be asserted that sound is the conflict between two bodies, the statement would in my opinion be erroneous. For sound is not the actual conflict, but a result of the conflict. The error is, however, of small importance: for the sense is clear, whatever the expression. But this trivial mistake has given rise to a very serious error in the minds of those who have not understood what was meant: for on reading that the essential basis was the first conflict, they immediately concluded that the basis was always to be taken from the first question, which is a grave mistake. 7 For every question has its basis, since every question is based on assertion by one party and denial by another. But there are some questions which form an essential part of causes, and it is on these that we have to express an opinion; while others are introduced from without and are, strictly speaking, irrelevant, although they may contribute something of a subsidiary nature to the general contention. It is for this reason that there are said to be several questions in one matter of dispute. 8 Of these questions it is often the most trivial which occupies the first place. For it is a frequent artifice to drop those points in which we place least confidence, as soon as we have dealt with them; sometimes we make a free gift of them to our p413opponents, while sometimes we are content to use them as a step to arguments which are of greater importance. 9 A simple cause, however, although it may be defended in various ways, cannot have more than one point on which a decision has to be given, and consequently the basis of the cause will be that point which the orator sees to be the most important for him to make and on which the judge sees that he must fix all his attention. For it is on this that the cause will stand or fall. On the other hand questions may have more bases than one.31 10 A brief example will show what I mean. When the accused says "Admitting that I did it, I was right to do it, he makes the basis one of quality; but when he adds "but I did not do it," he introduces an element of conjecture.32 But denial of the facts is always the stronger line of defence, and therefore I conceive the basis to reside in that which I should say, if I were confined to one single line of argument. 11 We are right therefore in speaking of the first conflict of causes in contradistinction to the conflict of questions. For instance in the first portion of his speech on behalf of Rabirius Postumus Cicero contends that the action cannot lie against a Roman knight, while in the second he asserts that no money ever came into his client's hands. Still I should say that the basis was to be found in the latter as being the stronger of the two. 12 Again in the case of Milo I do not consider that the conflict is raised by the opening questions, but only when the orator devotes all his powers to prove that Clodius lay in wait for Milo and was therefore rightly killed. The point on which above all the orator must make up his mind, even although he may be going to p415take up various lines of argument in support of his case, is this: what is it that he wishes most to impress upon the mind of the judge? But although this should be the first point for his consideration, it does not follow that it should be the first that he will make in his actual speech.

13 Others have thought that the basis lay in the first point raised by the other side in its defence. Cicero33 expresses this view in the following words:— "the argument on which the defence first takes its stand with a view to rebutting the charge." This involves a further question as to whether the basis can only be determined by the defence. Cornelius Celsus is strongly against this view, and asserts that the basis is derived not from the denial of the charge, but from him who affirms his proposition. Thus if the accused denies that anyone has been killed, the basis will originate with the accuser, because it is the latter who desires to prove: if on the other hand the accused asserts that the homicide was justifiable, the burden of proof has been transferred and the basis will proceed from the accused and be affirmed by him. 14 I do not, however, agree. For the contrary is nearer to the truth, that there is no point of dispute if the defendant makes no reply, and that consequently the basis originates with the defendant. 15 But in my opinion the origin of the basis varies and depends on the circumstances of the individual case. For instance in conjectural causes the affirmation may be regarded as determining the basis, since conjecture is employed by the plaintiff rather than the defendant, and consequently some have styled the basis originated by the latter negative. Again in any syllogism34 the whole of the reasoning proceeds from him who p417affirms. 16 But on the other hand he who in such cases35 denies appears to impose the burden of dealing with such bases upon his opponent. For if he says "I did not do it," he will force his opponent to make use of conjecture, and again, if he says "The law is against you," he will force him to employ the syllogism. Therefore we must admit that a basis can originate in denial. All the same we are left with our previous conclusion that the basis is determined in some cases by the plaintiff, in some by the defendant. 17 Suppose the accuser to affirm that the accused is guilty of homicide: if the accused denies the charge, it is he who will determine the basis. Or again, if he admits that he has killed a man, but states that the victim was an adulterer and justifiably killed (and we know that the law permits homicide under these circumstances), there is no matter in dispute, unless the accuser has some answer to make. Suppose the accuser does answer however and deny that the victim was guilty of adultery, it will be the accuser that denies, and it is by him that the basis is determined. The basis, then, will originate in the first denial of facts, but that denial is made by the accuser and not the accused. 18 Again the same question may make the same person either accuser or accused. "He who has exercised the profession of actor, is under no circumstances to be allowed a seat in the first fourteen rows of the theatre."36 An individual who had performed before the praetor in his private gardens, but had never been presented on the public stage, has taken his seat in one of the fourteen rows. 19 The accuser of course affirms that he has exercised the profession of an actor: the accused denies that he has exercised the profession. The question then arises p419as to the meaning of the "exercise of the profession of actor." If he is accused under the law regarding the seats in the theatre, the denial will proceed from the accused; if on the other hand he is turned out of the theatre and demands compensation for assault, the denial will be made by the accuser. 20 The view of the majority of writers37 on this subject will, however, hold good in most cases. Some have evaded these problems by saying that a basis is that which emerges from affirmations and denials, such as "You did it," "I did not do it," or "I was justified in doing it." 21 But let us see whether this is the basis itself or rather that in which the basis is to be found. Hermagoras calls a basis that which enables the matter in question to be understood and to which the proofs of the parties concerned will also be directed. My own opinion has always been that, whereas there are frequently different bases of questions in connexion with a cause, the basis of the cause itself is its most important point on which the whole matter turns. If anyone prefers to call the general question or general head of the cause, I shall not quarrel with him, any more than I have done hitherto if he produced a different technical term to express the same thing, although I know that whole volumes have been written on such disputes. I prefer however to call it the basis. 22 There is the greatest possible disagreement among writers about this as about everything else, but in this case as elsewhere they seem to me to have been misled by a passion for saying something different from their fellow-teachers. As a result there is still no agreement as to the number and names of bases, nor as to which are general and which special.

p421 23 To begin with Aristotle38 lays down that there are ten categories on which every question seems to turn. First there is οὐσία, which Plautus calls essence, the only available translation: under this category we inquire whether a thing is. Secondly there is quality, the meaning of which is self-evident. Third comes quantity, which was subdivided by later philosophers as dealing with two questions as to magnitude and number. Next relation, involving questions of competence39 and comparison. This is followed by when and where. 24 Then come doing, suffering and possessing, which for example are concerned with a person's being armed or clothed. Lastly comes κεῖσθαι or position, which means to be in a certain position, such for instance as being warm, standing or angry. Of these categories the first four concern bases, the remainder concern only certain topics for argument. 25 Others make the number of categories to be nine. Person, involving questions concerning the mind, body or external circumstances, which clearly has reference to the means by which we establish conjecture or quality. Time, or χρόνος, from which we get questions such as whether a child is born a slave, if his mother delivered of him while assigned40 to her creditors. Place, from which we get such disputes as to whether it is permissible to kill a tyrant in a temple, or whether one who has hidden himself at home can be regarded as an exile. 26 Then comes time in another sense, called καιρός by the Greeks, by which they refer to a period of time, such as summer or winter; p423under this heading come problems such as that about the man who held high revel in a time of pestilence.41 Action or πρᾶξις, to which they refer questions as to whether an act was committed wittingly or unwittingly, by accident or under compulsion and the like. Number, which falls under the category of quantity, under which come questions such as whether the state owes Thrasybulus thirty talents for ridding it of the same number of tyrants. 27 Cause, under which heading come a large number of disputes, whenever a fact is not denied, but the defence pleads that the act was just and reasonable. Τρόπος or manner, which is involved when a thing is said to have been done in one way when it might have been done in another: under this category come cases of such as that of the adulterer who is scourged with thongs or starved to death.42 Opportunity for action, the meaning of which is too obvious to need explanation or illustration: the Greeks however call it ἔργων ἀφορμαί. 28 These authorities like Aristotle hold that no question can arise which does not come under one of these heads. Some subtract two of them, namely number and opportunity, and substitute for what I have called action, things, or in Greek πράγματα. I have thought it sufficient to notice these doctrines, for fear someone might complain of their omission. Still I do not consider that bases are sufficiently determined by these categories, nor that the latter cover every possible kind of topic, as will be clear to any that read carefully what I have to say on both points. For there will be found to be many topics that are not covered by these categories.

29 I find it stated in many authors that some rhetoricians only recognise one kind of basis, the conjectural. p425But they have not mentioned who these rhetoricians are nor have I been able to discover. They are however stated to have taken this view on the ground that all our knowledge is a matter of inference from indications. On this line of reasoning they might regard all bases as qualitative, because we inquire into the nature of the subject in every case. But the adoption of either view leads to inextricable confusion. 30 Nor does it matter whether one recognises only one kind of basis or none at all, if all causes are of the same nature. Coniectura is derived from conicere "to throw together," because it implies the concentration of the reason on the truth. For this reason interpreters of dreams and all other phenomena are called coniectores "conjecturers." But the conjectural basis has received more names than one, as will appear in the sequel.

31 Some have recognised only two bases. Archedemus43 for instance admits only the conjectural and definitive and refuses to admit the qualitative, since he held that questions of quality take the form of "What is unfair? what is unjust? what is disobedience?" which he terms questions about identity and difference.44 32 A different view was held by those who likewise only admitted two bases, but made them the negative and juridical. The negative basis is identical with that which we call the conjectural, to which some give the name of negative absolutely, others only in part, these latter holding that conjecture is employed by the accuser, denial only by the accused. 33 The juridical is that known in Greek as δικαιολογικός. But just as Archedemus would not recognise the qualitative basis, so these reject the definitive which they include in the juridical, holding p427that in these questions we have to enquire whether it is just that the act with which the accused is charged should be called sacrilege or theft or madness. 34 Pamphilus held this opinion but subdivided quality into several different species. The majority of later writers have classified bases as follows, involving however no more than a change of names:— those dealing with ascertained facts and those dealing with matters where there is a doubt. For a thing must either be certain or uncertain: if it is uncertain, the basis will be conjectural; if certain, it will be some one of the other bases. 35 Apollodorus says the same thing when he states that a question must either lie in things external,45 which give play to conjecture, or in our own opinions: the former he calls πραγματικός, the latter περὶ ἐννοίας. The same is said by those who employ the terms ἀπροληπτὸς46 and προληπτικός, that is to say doubtful and presumptive, by this latter term meaning those facts which are beyond a doubt. 36 Theodorus agrees with them, for he holds that the question is either as to whether such and such a thing is really so, or is concerned with the accidents of somethingº which is an admitted fact: that is to say it is either περὶ οὐσίας or περὶ συμβεβηκότων. For in all these cases the first basis is conjectural, while the second belongs to one of the other classes. As for these other classes of basis, Apollodorus holds that there are two, one concerned with quality and the other with the names of things, that is to say a definitive basis. Theodorus makes them four, concerned with existence, quality, quantity and relation. 37 There are some too who make questions of identity and difference come under the head of quality, others who place it under the head p429of definition. Posidonius47 divides them into two classes, those concerned with words and those concerned with things. In the first case he thinks that the question is whether a word has any meaning; if so, what is its meaning, how many meanings has it, and how does it come to mean what it means? In the latter case, we employ conjecture, which he calls κατ᾽ αἴσθησιν, or inference from perception, quality, definition which he calls κατ᾽ ἔννοιαν or rational inference, and relation. Hence also comes the division into things written and unwritten. 38 Even Cornelius Celsus stated that there were two general bases, one concerned with the question whether a thing is, the other with the question of what it is. He included definition under the first of these, because enquiry may equally be made as to whether sacrilege has been committed, when a man denies that he has stolen anything from a temple, and when he admits that he has stolen private money from a temple. He divides quality into fact and the letter of the law. Under the head of the letter of the law he places four classes, excluding questions of competence:48 quantity and intention he places under the head of conjecture.49 39 There is also another method of dividing bases into two classes: according to this disputes are either about substance or quality, while quality is treated either in its most general sense or in its special senses. 40 Substance is dealt with by conjecture: for in enquiring into anything, we ask whether it has been done, is being done, or is likely to be done, and sometimes also consider its intention: this method is preferable to that adopted by those who style the conjectural basis a basis of fact, as though we only enquired into the past and what has p431actually been done. 41 The consideration of quality under its most general aspect rarely comes up in the courts; I refer to questions such as "whether that is honourable which is generally praised." With regard to the special aspects of quality, questions sometimes occur about some common term, such as whether sacrilege has been committed when a man has stolen private money from a temple, or about some act with a definite name, when there is no doubt either as to the commission or the nature of the act. Under this heading come all questions about what is honourable, just or expedient. 42 These bases are said to contain others as well, because quantity is sometimes concerned with conjectural bases, as in the question whether the sun is bigger than the earth, and sometimes with qualitative bases, as in the question what reward or punishment it would be just to assign to some particular person, while questions of competence undoubtedly are concerned with quality, and definition with questions of competence.50 43 Further contradictory laws and the ratiocinative basis or syllogism51 and the majority of questions dealing with the letter of the law and intention are based on equity, with the exception that this last question sometimes admits of conjecture as, for instance, concerning the intentions of the legislator: ambiguity, however, must always be explained by conjecture, because as it is clear that the words admit of two interpretations the only question is as to the intention.

44 A large number of writers recognise general bases; Cicero adopts them in his Orator,52 and holds that everything that can form the subject of dispute or discussion is covered by the three questions, whether p433it is, what it is, and of what kind it is. The names of these three bases are too obvious for mention.53 The same view is asserted by Patrocles. 45 Marcus Antonius stated that there were three bases in the following words:— "The things which form the ground of every speech are few and are as follows:— 'Was a thing done or not done?' 'Was it just or unjust?' 'Was it good or bad?' " But since, when we are said to have been justified in doing anything, this does not merely mean that our action was legal, but further implies that it was just, those who follow Antonius attempt to differentiate these bases with greater exactness. They therefore called them conjectural, legal and juridical, a division which meets with the approval of Verginius as well. 46 These they then subdivided into species, placing definition under the head of the legal basis, together with all others which are concerned with the letter of the law: such as that of contradictory laws, or ἀντινομία, that which rests on the letter of the law and on meaning or intention (which the Greeks call κατὰ ῥητὸν καὶ διάνοιαν) and μετάληψις to which latter we give various names, styling it the translative, transumptive or transpositive basis;54 the syllogism, which we call the ratiocinative or deductive basis; and those which turn on ambiguity or ἀμφιβολία. I mention these because they are called bases by most writers, though some prefer to call them legal questions.

47 Athenaeus laid down that there were four bases: the προτρεπτικὴ στάσις or παρορμητική, that is, the hortative, which is peculiar to deliberative themes; the συντελική,55 which is shown to be the conjectural, not so much from the name itself, but from what p435follows; the ὑπαλλακτική or definitive, for it consists in a change of terms;56 and the juridical to which he gives the name employed by other Greek writers.57 For, as I have said, there is a great variety in the names employed. 48 There are some who, arguing from its meaning of change, hold that ὑπαλλακτική is the translative basis, which is concerned with competence. Others, Caecilius58 and Theon for instance, hold that there are the same number of bases, but make them of a different kind, namely, those covered by the questions whether a thing is, what it is, of what kind it is and how great it is. 49 Aristotle59 in his Rhetoric states that all enquiry turns on the questions whether a thing is, of what kind it is, how great it is, and of how many parts it consists. In one place however he recognises the force of definition as well, saying that certain points are defended on the following lines:— "I took it, but did not steal it." "I struck him, but did not commit an assault." 50 Cicero60 again in his Rhetorica makes the number of bases to be four, namely those concerned with fact, names, kinds, and legal action, that is to say conjecture is concerned with fact, definition with names, quality with kinds, and law with action: under this latter head of law he included questions of competence. But in another passage he treats61 legal questions as a species of action.

51 Some writers have held that there are five bases: the conjectural, definitive, qualitative, quantitative and relative. Theodorus, also, as I have said,62 adopts the same number of general heads, whether a thing is, what it is, of what kind it is, how great it is, and to what it refers. The last he considers to be chiefly concerned with comparison, since better and worse, greater and less p437are meaningless terms unless referred to some standard. 52 But questions of relation, as I have already pointed out, enter also into translative questions, that is, questions of competence, since in cases such as "Has this man a right to bring an action?" or "Is it fitting that he should do such and such a thing, or against this man, or at this time, or in this manner?" For all these questions must be referred to a certain standard. 53 Others hold that there are six bases: conjecture or γένεσις, quality, particularity or ἰδιότης, by which word they mean definition, quantity or ἀξία, comparison and competence, for which a new term has been found in μετάστασις; I call it new when applied to a basis, for Hermagoras employs it to describe a species of juridical question. 54 Others think there are seven, while refusing to recognise competence, quantity or comparison, in place of which they substitute four legal bases,63 completing the seven by the addition of those three which they call rational.64 55 Others again make eight by the addition of competence to the above-mentioned seven. Some on the other hand have introduced a fresh method of division, reserving the name of bases for the rational, and giving the name of questions to the legal, as I mentioned above,65 since in the former the problem is concerned with facts, in the latter with the letter of the law. Some on the contrary reverse this nomenclature calling the legal questions bases and the rational grounds questions. 56 But others have thought that there are only three rational bases, covered by the questions whether a thing is, what it is, and of what kind it is? Hermagoras is alone in thinking that there are four, namely conjecture, particularity, competence, and quality: to the latter he p439appends the phrase κατὰ συμβεβηκός, "according to its accidents," illustrating hs meaning by putting a case where it is enquired whether a man happen to be good or bad. He then subdivides quality into four species: first that which is concerned with things to be sought or avoided, which belongs to deliberative oratory: 57 secondly those concerned with things in general without reference to persons, and may be illustrated by questions such as whether he is free who is claimed as a slave and waiting the trial of his case,66 whether riches beget insolence, and whether a thing is just or good; lastly there is the juridical species, under which practically the same questions arise, but in relation to certain definite persons, as for instance when it is asked whether that particular man has done well or ill. 58 I am aware that another explanation is given by Cicero in the first book of his Rhetorica67 of the species known as practical, where he says that it is "the department under which we consider what is right according to civil usage and equity: this department is regarded by us as the personal sphere of the lawyer." 59 But I have already mentioned68 what his opinion was about this particular work. The Rhetorica are simply a collection of school-notes on rhetoric which he worked up into this treatise while quite a young man. Such faults as they possess are due to his instructor. In the present instance he may have been influenced by the fact that the first examples given by Hermagoras of this species are drawn from legal questions, or by the fact that the Greeks call interpreters of the law πραγματικοί. 60 But for these early efforts Cicero substituted p441his splendid de Oratore and therefore cannot be blamed for giving false instruction. I will now return to Hermagoras. He was the first rhetorician to teach that there was a basis concerned with competence, although the elements of this doctrine are found in Aristotle,69 without however any mention of the name. 61 The legal questions were according to Hermagoras of five kinds. First the letter of the law and its intention; the names which he gives to these are κατὰ ῥητόν and ὑπεξαίρεσις, that is to say the letter of the law and the exceptions thereto: the first of these classes is found in all writers, but the term exception is less in use. The number is completed by the ratiocinative basis and those dealing with ambiguity and contradictory laws. 62 Albutius adopts this classification, but eliminates competence, including it under the juridical basis. Further he holds that in legal questions there is no ratiocinative basis. I know that those who are prepared to read ancient writers on rhetoric more carefully than I have, will be able to discover yet more on this subject, but I fear that I may have been too lengthy even in saying what I have said.

63 I must admit that I am now inclined to take a different view from that which I once held. It would perhaps be safer for my reputation if I were to make no modification in views which I not only held for so many years, but of which I expressed my open approbation. 64 But I cannot bear to be thought guilty of concealment of the truth as regards any portion of my views, more especially in a work designed for the profit of young men of sound disposition. For Hippocrates,70 the great physician, in my opinion took the most honourable course in acknowledging some of p443his errors to prevent those who came after from being led astray, while Cicero had no hesitation about condemning some of his earlier works in books which he published later: I refer to his condemnation of his Lucullus and Catulus71 and the books72 of rhetoric which I have already mentioned. 65 Indeed we should have no justification for protracting our studies if we were forbidden to improve upon our original views. Still none of my past teaching was superfluous: for the views which I am now going to produce will be found to be based on the same principles, and consequently no one need be sorry to have attended my lectures, since all that I am now attempting to do is to collect and rearrange my original views so that they may be somewhat more instructive. But I wish to satisfy everybody and not to lay myself open to the accusation that I have allowed a long time to elapse between the formation and publication of my views. 66 I used to follow the majority of authorities in adhering to three rational bases, the conjectural, qualitative and definitive, and to one legal basis.73 These were my general bases. The legal basis I divided into five species, dealing with the letter of the law and intention, contradictory laws, the syllogism, ambiguity and competence. 67 It is now clear to me that the fourth of the general bases may be removed, since the original division which I made into rational and legal bases is sufficient. The fourth therefore will not be a basis, but a kind of question; if it were not, it would form one of the rational bases. 68 Further I have removed competence from those which I called species. For I often asserted, as all who have attended my lectures will remember, and even those discourses which were published against my will74 included the statement, p445that the basis concerned with competence hardly ever occurs in any dispute under such circumstances that it cannot more correctly be given some other name, and that consequently some rhetoricians exclude it from their list of bases. 69 I am, however, well aware that the point of competence is raised in many cases, since in practically every case in which a party is said to have been ruled out of court through some error of form, questions such as the following arise: whether it was lawful for this person to bring an action, or to bring it against some particular person, or under a given law, or in such a court, or at such a time, and so on. 70 But the question of competence as regards persons, times, legal actions and the rest originates in some pre-existent cause: the question turns therefore not on competence itself, but on the cause with which the point of competence originates. "You ought to demand the return of a deposit not before the praetor but before the consuls, as the sum is too large to come under the praetor's jurisdiction." The question then arises whether the sum is too large, and the dispute is one of fact. 71 "You have no right to bring an action against me, as it is impossible for you to have been appointed to represent the actual plaintiff." It then has to be decided whether he could have been so appointed. "You ought not to have proceeded by interdict,75 but to have put in a plea for possession." The point in doubt is whether the interdict is legal. All these points fall under the head of legal questions. 72 For do not even those special pleas, in which questions of competence make themselves most evident, give rise to the same species of question as those laws under which the action is brought, so that the enquiry is p447really concerned with the name of a given act,76 with the letter of the law and its meaning, or with something that requires to be settled by argument? The basis originates from the question, and in cases of competence it is not the question concerning which the advocate argues that is involved, but the question on account of which he argues.77 73 An example will make this clearer. "You have killed a man." "I did not kill him." The question is whether he has killed him; the basis is the conjectural. But the following case is very different. "I have the right to bring this action." "You have not the right." The question is whether he has the right, and it is from this that we derive the basis. For whether he is allowed the right or not depends on the event, not on the cause itself, and on the decision of the judge, not on that on account of which he gives such a decision. 74 The following is a similar example. "You ought to be punished." "I ought not." The judge will decide whether he should be punished, but it is not with this that the question or the basis is concerned. Where then does the question lie? "You ought to be punished, for you have killed a man." "I did not kill him." The question is whether he killed him. "I ought to receive some honour." "You ought not." Does this involve a basis? I think not. "I ought to receive some honour for killing a tyrant." "You did not kill him." Here there is a question and a basis78 as well. 75 So, too, "You are not entitled to bring this action," "I have,"º involves no basis. Where then is it to be found? "You have no right to bring this action, because you have been deprived of civil rights." In this case the question is whether he has been so deprived, or whether loss of civil rights debars a person from p449bringing an action. Here on the other hand we find both questions and bases.79 It is therefore to kinds of causes, not to bases that the term competence applies: other kinds of cause are the comparative and the recriminatory.80 76 "But," it is urged, "the case 'I have a right, 'You have not,' is similar to 'You have killed a man,' 'I was justified in so doing.' " I do not deny it, but this does not make it a basis. For these statements are not propositions until the reasons for them are added. If they were propositions as they stand, the case could not proceed. "Horatius has committed a crime, for he has killed his sister." "He has not committed a crime, since it was his duty to kill her for mourning the death of an enemy." The question is whether this was a justifiable reason, and the basis is one of quality. 77 So too as regards competence. "You have no right to disinherit, since a person who has been deprived of civil rights is not allowed to take legal action."81 "I have the right, since disinheriting is not a legal action." The question here is what is legal action. And we shall arrive at the conclusion that the son's disinheritance is unlawful, by use of the syllogism.82 The case will be similar with all the rational and legal bases. 78 I am aware that there have been some who placed competence among rational bases, using as illustrations cases such as, "I killed a man under orders from my general," "I gave the votive offerings in a temple to a tyrant under compulsion," "I deserted owing to the fact that storms or floods or ill-health prevented me from rejoining." That is to say it was not due to me, but some external cause. 79 From these writers I differ even more widely: for it is not the nature of the legal action itself which is involved in the question of competence, but the cause of the act; p451and this is the case in almost every defence. Finally he who adopts this line of defence, does not thereby abandon the qualitative basis; for he states that he himself is free from blame, so that we really should differentiate between two kinds of quality,83 one of which comes into play when both the accused person and his act are defended, and the other when the accused person alone is defended.

80 We must therefore accept the view of the authorities followed by Cicero,84 to the effect that there are three things on which enquiry is made in every case: we ask whether a thing is, what it is, and of what kind it is. Nature itself imposes this upon us. For first of all there must be some subject for the question, since we cannot possibly determine what a thing is, or of what kind it is, until we have first ascertained whether it is, and therefore the first question raised is whether it is. 81 But even when it is clear that a thing is, it is not immediately obvious what it is. And when we have decided what it is, there remains the question of its quality. These three points once ascertained, there is no further question to ask. 82 These heads cover both definite and indefinite questions. For no legal problem can be settled save by the aid of definition, quality and conjecture. 83 Those, however, who are engaged in instructing the ignorant will find it useful at first to adopt a slightly less rigid method: the road will not be absolutely straight to begin with, but it will be more open and will provide easier going. I would have them therefore learn above all things p453that there are four different methods which may be employed in every case, and he who is going to plead should study them as first essentials. For, to begin with the defendant, far the strongest method of self-defence is, if possible, to deny the charge. The second best is when it is possible to reply that the particular act with which you are charged was never committed. The third and most honourable is to maintain that the act was justifiable. If none of these lines of defence are feasible, there remains the last and only hope of safety: if it is impossible either to deny the charge or justify the account, we must evade the charge with the aid of some point of law, making it appear that the action has been brought against us illegally. 84 Hence arise the questions of legal action or competence. For there are some things, which, although not laudable in themselves, are yet permitted by law; witness the passage in the Twelve Tables authorising creditors to divide up a debtor's body among themselves, a law which is repudiated by public custom. There are also certain things which although equitable are prohibited by law; witness the restrictions placed on testamentary disposition.85 85 The accuser likewise has four things which he must keep in mind: he must prove that something was done, that a particular act was done, that it was wrongly done, and that he brings his charge according to law. Thus every cause will turn on the same sorts of questions, though the parts of plaintiff and defendant will sometimes be interchanged: for instance in the case of a claim for a reward, it will be the plaintiff's task to show that what was done was right.

86 These four schemes or forms of action which I then called general bases fall into two classes as I have p455shown,86 namely, the rational and the legal. The rational is the simpler, as it involves nothing more than the consideration of the nature of things. In this connection, therefore, a mere mention of conjecture, definition and quality will suffice. 87 Legal questions necessarily have a larger number of species, since there are many laws and a variety of forms. In the case of one law we rely on the letter, in others on the spirit. Some laws we force to serve our turn, when we can find no law to support our case, others we compare with one another, and on others we put some novel interpretation. 88 Thus from these three bases we get three resemblances of bases: sometimes simple, sometimes complex, but all having a character of their own, as, for instance, when questions of the letter of the law and its intention are involved, for these clearly come under conjecture or quality; or again where the syllogism is involved, for this is specially connected with quality; or where contradictory laws are involved, for these are on the same footing as the letter of the law and intention; or yet again in cases of ambiguity, which is always resolved by conjecture. 89 Definition also belongs to both classes of question, namely those concerned with the consideration of facts and those concerned with the letter of the law. All these questions, although they come under the three bases, yet since, as I have mentioned,87 they have certain characteristic features of their own, require to be pointed out to learners; and we must allow them to be called legal bases or questions or minor heads, as long as it is clearly understood that none of them involve any other questions than the three I have mentioned.88 90 As regards questions of quantity, number, relation, and, as some have thought, comparison, the p457case is different. For these have no connexion with the complexities of the law, but are concerned with reason only. Consequently they must always be regarded as coming under conjecture or quality, as, for instance, when we ask with what purpose, or at what time, or place something was done.

91 But I will speak of individual questions when I come to handle the rules for division.89 This much is agreed to by all writers, that one cause possesses one basis, but that as regards secondary questions related to the main issue of the trial, there may frequently be a number in one single cause. 92 I also think there is at times some doubt as to which basis should be adopted, when many different lines of defence are brought to meet a single charge; and, just as in regard to the complexion to be given to the statement of the facts of the case, that complexion is said to be the best which the speaker can best maintain, so in the present connexion I may say that the best basis to choose is that which will permit the orator to develop a maximum of force. 93 It is for this reason that we find Cicero and Brutus taking up different lines in defence of Milo. Cicero says that Clodius was justifiably killed because he sought to waylay Milo, but that Milo had not designed to kill him; while Brutus, who wrote his speech merely as a rhetorical exercise, also exults that Milo has killed a bad citizen. 94 In complicated causes, however, two or three bases may be found, or different bases: for instance a man may plead that he did not do one thing, and that he was justified in doing another, or to take another similar class of case, a man may deny two of the charges. 95 The same thing occurs when there is a question about some thing which is claimed by a number p459of persons, who may all of them rely on the same kind of plea (for instance, on the right of the next of kin), or may put in different claims, one urging that the property was left him by will, another that he is next of kin. Now whenever a different defence has to be made against different claimants, there must be different bases, as for example the well-known controversial theme: 96 "Wills that are made in accordance with law shall be valid. When parents die intestate, their children shall be the heirs. A disinherited son shall receive none of his father's property. A bastard, if born before a legitimate son, shall be treated as legitimate, but if born after a legitimate son shall be treated merely as a citizen. It shall be lawful to give a son in adoption. Every son given in adoption shall have the right to re-enter his own family if his natural father has died childless. 97 A father of two legitimate sons gave one in adoption, disinherited the other, and acknowledged a bastard, who was born to him later. Finally after making the disinherited son his heir he died. All three sons lay claim to the property." Nothus is the Greek word for a bastard; Latin, as Cato emphasized in one of his speeches, has no word of its own and therefore borrows the foreign term. But I am straying from the point. 98 The son who was made heir by the will finds his way barred by the law "A disinherited son shall receive none of his father's property." The basis is one resting on the letter of the law and intention, and the problem is whether he can inherit by any means at all? can he do so in accordance with the intention of his father? or in virtue of the fact that he was made heir by the will? The problem confronting the bastard is twofold, since he was born after the two legitimate sons p461and was not born before a legitimate son. 99 The first problem involves a syllogism: are those sons who have been cast out from their own family to be regarded as though they had never been born? The second is concerned with the letter of the law and intention. For it is admitted that he was not born before any legitimate son, but he will defend his claim by appealing to the intention of the law, which he will maintain to imply that the bastard, born when there was no legitimate son in the family, should rank as legitimate. 100 He will dismiss the letter of the law, pointing out that in any case the position of a bastard is not prejudiced by the fact that no legitimate son was born after him, and arguing as follows:— "Suppose that the only son is a bastard, what will his position be? Merely that of a citizen? and yet he was not born after any legitimate son. Or will he rank as a son in all respects? But he was not born before the legitimate sons. As it is impossible to stand by the letter of the law we must stand by its intentions." 101 It need disturb no one that one law should originate two bases. The law is twofold, and therefore has the force of two laws.90 To the son who desires to re-enter the family, the disinherited's first reply is, "Even though you are allowed to re-enter the family, I am still the heir." The basis will be the same as in the claim put forward by the disinherited son, since the question at issue is whether a disinherited son can inherit. 102 But the disinherited and the bastard will object, "You cannot re-enter the family, for our father did not die childless." But in this connexion each will rely on his own particular question. For the disinherited son will say that even a disinherited man does not cease p463to be a son, and will derive an argument from that very law which denies his claim to the inheritance; namely that it was unnecessary for a disinherited son to be excluded from possession of his father's property if he had ceased to be one of the family; but now, since in virtue of his rights as son he would have been his father's heir if he had died intestate, the law is brought to bar his claim; and yet the law does not deprive him of his position as son, but only of his position as heir. Here the basis is definitive, as turning on the definition of a son. 103 Again the bastard in his turn will urge that his father did not die childless, employing the same arguments that he had used in putting forward his claim that he ranked as a son; unless indeed he too has recourse to definition, and raises the question whether he said bastards are not sons. Thus in one case we shall have either two special legal bases, namely the letter of the law and intention, with the syllogism and also definition, or those three91 which are really the only bases strictly so called, conjecture as regards the letter of the law and intention, quality in the syllogism,92 and definition, which needs no explanation.

104 Further every kind of case will contain a cause, a point for the decision of the judge, and a central argument.93 For nothing can be said which does not contain a reason, something to which the decision of the judge is directed, and finally something which, more than aught else, contains the substance of the matter at issue. But as these vary in different cases and are as a rule explained by writers on judicial causes, I will postpone them to the appropriate portion of my work. For the present I shall follow the order which I prescribed by my division94 of causes into three classes.


The Translator's Notes:

28 This chapter is highly technical and of little interest for the most part to any save professed students of the technique of the ancient schools of rhetoric. Its apparent obscurity will, however, be found to disappear on careful analysis. The one passage of general interest it contains is to be found in the extremely ingenious fictitious theme discussed in sections 96 sqq.

Thayer's Note: Well, gentle reader, there's nothing like attempting to prejudice you point-blank before you even give the author his hearing! I heartily disagree.

If long passages are indeed highly technical, the essence of the chapter, however, is a discussion of one of the most important things Quintilian has to teach us: what the basis of a case is, or rather, what are the possible bases, how one may discover them, and how the fight for the basis determines the outcome of the case.

I first read Quintilian a few months before the O. J. Simpson trial, and as I watched the trial unfold, I was able to see very early and with crystalline clarity what was going on, who would win the case, and why. On the surface of it, the basis of the case was that of most murder trials: that evidence could, or could not, show that the defendant had committed the murder. The brilliant defense, however, succeeded in converting the basis into "Can one trust the Los Angeles Police Department?" If the answer to that was no, then all the evidence was suspect, and it didn't matter what it appeared to show. Since at the time there was much to indicate that at times one could not trust the LAPD, that a large segment of the population from which the jury pool was drawn did not, and since thru jury selection, to which they devoted the utmost care, the Simpson defense attorneys had a great advantage over the Roman pleader in that they were able to choose those who would judge the case — they won the fight over the basis hands-down: and with it, the case.

29 There is no exact English equivalent for status. Basis or ground are perhaps the nearest equivalents.

30 § 206.

31 See § 21.

32 See § 30 sqq.

33 Top. xxv.93.

34 i.e. where the law forms the major premiss, while the minor premiss is the act which is brought under the law.

35 Conjectural causes and the syllogism.

36 Reserved for equites.

37 i.e. that the defendant makes the basis or status. See § 13.

38 Categ. ii.7.

39 See §§ 52, 68 sqq., 84‑86, which make the meaning of translatio fairly clear. No exact rendering is satisfactory. Literally it means "transference of the charge": the sense is virtually the same as that of exceptio (a plea made by defendant in bar of plaintiff's action). "Exception" is too unfamiliar and technical a term. "Competence," despite its vagueness, is perhaps the least unsatisfactory rendering.

40 addicti were not technically servi, though in a virtual condition of servitude, being the bondsmen of their creditors till their debt was paid.

41 There is no other reference to this theme.

42 An adulterer caught flagrante delicto might be killed by the husband or beaten. But to starve him to death in cold blood would be illegal.

43 Fr. 11, Arnim.

44 i.e. the question may be stated "Does it conform to our conception of injustice or is it something different?" Questions of quality are regarded as questions of definition.

45 e.g. circumstantial evidence.

46 ἀπροληπτός lit. = unpresumed.

47 Fr. p232, Bake.

48 cp. § 23; translatio and exceptio are virtually identical. The four classes are Intention, Ambiguity, Contradictory Laws, Syllogism.

49 i.e. the conjectural basis concerned with questions of fact.

50 See § 11 and the case cited in 38, where the accused would argue that he was guilty not of sacrilege, but of simple theft.

51 When we argue that a certain case comes under a certain law. cp. § 15.

52 Or. xiv.45.

53 Conjectural, definitive, and qualitative.

54 Concerned with questions of competence.

55 συντελική lit. = contributory.

56 The defendant admits the act, but gives it a different name, e.g. theft, not sacrilege. ὑπαλλακτική = changing.

57 δικαιολογικός.

58 Caec. fr. 49, Burkh.

59 Ar. Rhet. 1416b: 1374a.

60 de Inv. I.VIII.10.

61 Part. Or. 31 and 38.

62 § 36.

63 See § 46.

64 Conjectural, definitive, qualitative.

65 § 46.

66 assertio = a trial in which the question of a person's liberty is involved. When waiting trial, this person is described as in assertione.

67 de Inv. I.XI.14.

68 See III.V.15.

69 Rhet. II.XV.8.

70 Epidem. v.14.

71 The two books of the first edition of the Academica.

72 i.e. the Rhetorica, better known as de Inventione.

73 See III.V.4.

74 See I.Proem.7.

75 sc. by getting an order for restitution.

76 e.g. murder or manslaughter: sacrilege or theft.

77 See § 70.

78 sc. the conjectural.

79 sc. the conjectural or definitive basis and the qualitative.

80 See III.X.3 and 4.

81 Disinheritance could only be effected by legal action.

82 See § 15.

83 (A) Absolute, when the deed is shown to be right. (B) Relative, when the act is not defended, but the agent is cleared of the guilt of the act.

84 See § 44.

85 e.g. that the legal heir must receive at least a quarter of the property.

86 § 67, and III.V.4.

87 § 87.

88 § 80.

89 Book VII.

90 The law is twofold as containing two separate, though complementary, enactments on the position of bastards: (a) nothus . . . . filius sit, (b) post . . . . civis (§ 96).

91 See § 82.

92 See § 88.

93 For discussion of these technical terms see chap. xi.

94 Chaps. iii and iv.


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