Of the status or position* of a cause, § 1-4. What it is, 5-12. From whom the position proceeds, the accuser or defendant, 13-21. How many positions there are; the ten categories of Aristotle, 22-24. Others make nine, others seven, 25-28. As to the number of positions, some make one only, 29, 30. Others two, as Archidemus, Pamphilus, Apollodorus, Theodorus, Posidonius, Cornelius Celsus, 31-38. Another mode of making two positions, 40-43. Most authors make three, as Cicero, Patrocles, Marcus Antonius Virginius, 44-46. Athenaeus, Caecilius, and Theon make four, 45-48. The quadripartite methods of Aristotle and Cicero, 49, 50. Some have made five, six, seven, eight positions, 51-54. Distinction of status rationales, quaestiones legales , 55-57. Cicero speaks of a status negotialis, 58, 59. Hermagoras first introduced exception, 60.60. Legal questions; Albutius, 61, 62. Quintilian departs in some degree from the method which he formerly adopted, 63-67. His opinion of exception ; remarks upon it, 68-79. In every cause there are three points to be ascertained, 80-82. A fourfold division, useful to learners, 83-85. These four points included under two genera, the rationale and the legale, 86, 87. Resemblances in the genus legale spring from the three points above-mentioned, 88-90. In every simple cause there is but one position, 91-93. In complex causes there are several positions, either of the same or of different kinds; examples, 94-104. * In 3.6, Watson translates the Latin word status as "state," but not without some reservations, as he observes in a footnote: "I was very much in doubt, for some time, what English word I should adopt for status..., but being able to find no English word exactly equivalent to it, I thought it best, on the whole, to take the derivative from it, state...." Guthrie, in the first English translation of Quintilian (1756), also translated the word as state. However, in his 2002 translation for the Loeb Classical Library, Donald A. Russell translates it as "issue," as does Lanham in his earlier Handlist of Rhetorical Terms. But examining the word's etymology, one sees that status derives from the root term statio or "standing," with its meaning grounded in physical locality or how one holds one's body. For this reason, I have opted for the word "position." In making this decision, I am grateful for the sage advice of Michael Mendelson.—LH 1. SINCE every cause, therefore, is comprehended in some status or position, I think that before I proceed to specify how the several kinds of causes are to be managed, I must consider that question which has reference to all of them alike, what is a position as well as whence it is drawn, and how many and what kinds of positions there are? Some have been of opinion, however, that all these questions concern only judicial matters; but, when I have treated of all the three kinds of oratory, the result will make their ignorance apparent. 2. What I call the position, some term the "settlement"; others the "question"; others "that which appears from the question"; and Theodorus styles it the "general head", κεφάλαιον γενικώτατον (kephalaion genikotaton), to which everything else is referred. But though the names are different, the meaning is the same; nor is it of any consequence to learners by what term anything is distinguished, so that the thing itself be clear. 3. The Greeks call the position στάσιν (stasis), a name which they think was not first given it by Hermagoras, but, as some suppose, by Naucratis, a disciple of Isocrates, or, as others imagine, by Zopyrus of Clazomenae; though even Aeschines appears to use the term in his oration against Ctesiphon when he intreats the judges not to allow Demosthenes to wander from the subject, but to oblige him to speak directly to the position of the case. 4. The name is said to be derived either from the fact that in it lies the commencement of controversy in the cause, or that the cause rests on it. Such is the origin of its name; let us now consider what it is. Some have defined the position to be the first conflict of questions, who, I think, have conceived rightly, but have not expressed themselves with sufficient judgment. 5. For the position is not the first conflict: "You have done, I have not done," but that which results from the first conflict, that is, the nature of the question, "you have done; I have not done; has he done? You have done this; I have not done this; what has he done?" But as it appears from these examples, that the first sort of question depends on conjecture, the other on definition, and as it is on these points that each side will insist, the question will be one either of a conjectural or of definitive position. 6. Supposing a person should say, "Sound is the concussion of two bodies"; he would be in the wrong, I think, for the sound is not the concussion, but the result of the concussion. This is a mistake, however, of but trifling consequence, for the meaning is understood in whatever way it be expressed. But in regard to oratory, an error of vast importance has arisen among students who have imperfectly understood their authors and who, as they read the words "first conflict," thought that the position was always to be taken from the first question, a supposition which is altogether unfounded. 7. For there is no question that has not its position, since there is none that is not founded on assertion and denial. But some questions form an integral part of causes, and on these a decision must be pronounced, while others are introduced from without, contributing something, however, like auxiliaries, to the general strength of the cause, and it then happens that there are said to be several questions in the same suit. 8. Of these the least important often occupies the first place, for it is a common artifice among us to abandon those points in which we have least trust, after they have been dwelt upon, sometimes conceding them as it were, of our own accord, to the opposite side, and sometimes contenting ourselves with making an ascent from them to stronger grounds of argument. 9. A simple cause, though it may be defended in various ways, cannot contain more than one point on which a decision is to be pronounced. Hence the position of the cause will be that which the pleader regards as the chief object to be gained, and the judge as the chief object of attention, for it is on this that the cause will take its stand. 10. But of questions there may be different positions, since, to make this plain by a very short example, when the accused says, "Even if I did it, I was right in doing it," he makes the position that of quality, but when he adds, "but I did not do it," he makes it that of conjecture. But the defense, "I have not done it," is always the stronger, and therefore I shall consider the position as lying in that argument which I should use if I were not allowed to use more than one. 11. We therefore rightly say the first conflict of causes, not of questions. Cicero, in pleading for Rabirius Postumus, makes it his object, in the first part of his speech, to show that the charge could not be brought against a Roman knight, but in the latter part, he asserts that no money came into his client's hands. But I should say that the state lies in that which is the stronger point. 12. Nor, in his speech for Milo, should I consider that the struggle in the cause commences with those early questions which are introduced immediately after the exordium, but where he proceeds to prove, with his whole strength, that Clodius was a lier-in-wait, and was therefore justly put to death. And that which an orator ought to settle in his mind before everything else, even though he purpose to offer many arguments in support of his cause, is what he would wish to be most apparent to the judge. But though this is the first thing to be considered, it does not follow that it will be the first to be stated. 13. Others have thought that the position is the first point of opposition offered by the party against whom you are pleading, an opinion which Cicero expressed in the following words: "On which the defense first takes its stand, as if ready to grapple with the opponent to overthrow him." Hence, again, rises another question, whether he who replies always determines the position. To this notion Cornelius Celsus is eminently opposed, saying the position does not arise from him who denies, but from him who supports his own assertion. For instance, if an accused person denies that a man has been killed, the position would come from the accuser, because he would proceed to prove what he had affirmed; if the accused should say that the man was lawfully killed, the position would come from him, and the affirmation be on his side, the burden of proof being transferred from one party to the other. 14. With that writer I do not agree, for what is said in contradiction to him is nearer the truth, that there is no point of dispute if the party with whom you are going to law makes no reply, and that accordingly the state proceeds from the respondent. 15. In my own opinion, however, the case happens sometimes one way and sometimes another, varying according to the nature of the cause, because the affirmation may be thought sometimes to determine the position, as in conjectural causes. For it is rather the plaintiff that uses conjecture (some, moved by this consideration, have said that the position proceeding from the defendant is a negative position), and in a syllogism the whole of the reasoning proceeds from him who affirms. 16. But because he who denies appears in those cases also to lay upon the opposite party the necessity of determining the position (for if he says, "I have not done the deed," he will oblige his opponent to use conjecture, and if he says, "My opponent has not the law on his side," he will compel him to have recourse to the syllogism), let us grant that the position proceeds from the defendant. Nevertheless, however, the matter will come to the same thing, that sometimes the plaintiff will determine the position, and sometimes the defendant. 17. For let this be the assertion of the accuser, "You have killed a man." If the accused deny the charge, it is the accused that will determine the position, but if he admits the truth of it, but says that the man was an adulterer and was lawfully killed (and it is certain that there is a law which gives permission to kill an adulterer), then unless the accuser makes some reply, there will be no case. But if the accuser rejoins, "He was not an adulterer," refutation then commences on the part of the accuser, and it is he that will determine the position, which will thus indeed have its origin in the first denial. But that denial will be made by the accuser, not by the accused. 18. It may happen, too, that the same question may make the same person either accuser or accused; for instance, the law says, "Let not him who has exercised the profession of an actor sit in the first fourteen rows of seats"; but a man who had appeared as an actor before the praetor in his garden, but had not exhibited himself on the public stage, seated himself on one of those fourteen rows. 19. The charge then brought against him is, "You have exercised the profession of an actor," the denial is, "I have not exercised it," and the question, "What is it to exercise the profession of an actor?" If he be accused under the law respecting the theater, the denial will proceed from the accused. But if he be expelled from the theater and demand reparation for unjust expulsion, the denial will be on the part of the accuser. 20. But that which is laid down by the majority of writers will certainly be of more frequent occurrence. Those have escaped these difficulties who have said that the position is that which results from the affirmation and the denial, such as, "You have done the deed," "I have not done it," or "I was right in doing it." 21. Let us consider, however, whether that is the isuee, or whether it is in that that the position lies. Hermagoras calls that the position from which the matter in question is understood, and to which also the proofs of each party are directed as their object. My own opinion has always been, as there are frequently different positions of questions in a cause, to regard that as the position of the cause which is the strongest point in it and on which the whole matter chiefly turns. If any one profess to call this the general question, or the general head, I shall not dispute with him on that point (any more than if he should invent yet another name by which the same thing might be signified, although I know that many rhetoricians have devoted whole volumes to this discussion). But I am satisfied to let it be called the position. 22. As there is the greatest dissension among writers, however, on all other matters, so in regard to this there appears to me to have been extraordinary eagerness to advance different opinions, insomuch that it is neither agreed what number of positions there are, nor what are their names, nor which of them are general and which special. 23. Aristotle, first of all, specifies ten elements, to which every possible question appears to have some reference:
But of all these, the first four only appear to concern the positions of causes; the rest seem to concern only topics for argument. 25. Others have specified nine elements:
28. These writers, like Aristotle, think that no case can occur that does not connect itself with some of these elements. Some take away two of them, "number" and "opportunity," and for what I called "act" substitute "things," that is, πραγματα (pragmata). These doctrines I have thought it sufficient just to notice, that I might not be supposed to have purposely omitted them. But I neither consider that positions of causes are properly determined by these categories, nor that all topics for argument are included in them. This will be apparent to those who read with attention what I am going to say on each of these heads, for there will be found to be many particulars that are not comprehended under these elements. 29. I have read in many authors that some rhetoricians are of opinion that there is in reality but one position, namely, the conjectural; but who the rhetoricians that held this opinion were, those authors have not told us, nor have I been able anywhere to discover. They are said, however, to have formed their notions on this ground: that our knowledge of everything is the result of indications. But from similar reasoning they might say that the only position is that of quality, as a question may always arise about the quality or nature of anything about which we speak. 30. From either mode the greatest confusion will result; nor will it make any difference, indeed, whether we admit one kind of position only, or none at all, if all causes are of the same nature. "Conjecture" is derived from conjicere, "to throw together," that is, from making all our reasonings converge towards truth; whence also interpreters of dreams and omens are called conjectores, "conjecturers." But this sort of position has received various names, as will appear from what follows. 31. Some have made two kinds of positions. Archidemus, for instance, admitted the conjectural and the definitive, excluding that of quality, because he thought that we imagine about quality thus—"What is unjust? What is iniquitous? What is it to be disobedient?"—questions which he terms de eodem et alio, "about identity and difference." 39. With this opinion theirs is at variance who would make indeed two kinds of position—one negative and one juridical. The negative is the same as that which we call the conjectural, to which some have given the term "negative" absolutely, others partially, because they considered that the accuser employs conjecture, and the accused, denial. The juridical is that which in Greek is called δικαιολογικός (dikaiologikos), "treating of right." 33. But as "quality" is set aside by Archidemus, so by these writers is rejected "definition," which they make dependent on the juridical position and think that we must imagine "whether it is right that what is charged against a person should be called sacrilege," for example, "or theft, or madness." 34. Of this opinion was Pamphilus, but he distinguished quality into several kinds. Many succeeding writers, altering only the names, have divided positions of causes into two kinds by saying that they are either about something that is doubtful, or about something that is certain. For such indeed is the case, nor can it be otherwise, than either certain that a thing has been done, or uncertain. If it is uncertain, the position is conjectural; if it is certain, there is room for other kinds of positions. 35. Indeed, Apollodorus says the same thing when he observes that the question lies either in things external, by which conjecture is settled, or in our own opinions, calling the former sort of questions πραγματικόν (pragmatikon), "practical," the latter περὶ ἐννοίας (peri ennoias), "dependent on judgment." Those also say the same who make the two kinds of position, ἀπροληπτον (aprolēpton) and προληπτικόν (prolēptikon), "dubious" and "presumptive," the latter meaning what is evident. 36. Theodorus, too, expresses himself similarly, as he thinks that the question is either as to whether a thing has happened, or as to particulars relating to what is admitted to have happened, that is, περὶ οὐσίας καί συμβεβηκότων (peri ousias kai symbebēkotōn). For in all these distinctions the first kind of position belongs to conjecture, the second to other matters. But these other matters Apollodorus makes to be two: quality and de nomine, that is definition; Theodorus four: existence, quality, quantity, and relation. 37. There are some also who make the question de eodem et alio, "about identity and difference," belong sometimes to quality and sometimes to definition. Posidonius, too, ranges positions of causes under two heads, words and things. With respect to a word, he thinks that the questions are, "Whether it has any meaning?" "What?" "How many meanings?" and "How it has such meaning?" With respect to things, he notices conjecture, which he calls κατ᾽ αἲσθησιν (kat' aisthēsin), "assumption from perception," quality, definition, κατ᾽ ἒννοιαν (kat' ennoian), "rational induction," and relation. Hence also comes the distinction into things written and unwritten. 38. Cornelius Celsus, himself, also makes two general positions: "Whether a thing is" and "of what nature it is." Under the first he includes definition, because it is equally a question whether a man who denies that he has stolen anything from a temple, or who owns that he stole from it the money of a private individual, is guilty of sacrilege. Quality he divides into fact and what is written; to what is written he assigns four legal questions, setting aside exception; quantity and intention he puts under conjecture. 39. There is also another method of division into two positions, which tells us that a question must relate either to substance or to quality, and that quality is considered either in its most general sense or with regard to particulars. 40. To substance belongs conjecture, for inquiry may be made concerning anything, "whether it has been, is, or will be," and sometimes concerning the intention of it. This is better than the method of those who have named the conjectural position a position of fact, as if inquiry could be made only concerning the past and concerning what has been done. 41. As to the consideration of quality in its most general sense, as "Whether that is honorable which is everywhere commended," it rarely occurs in judicial proceedings. But with reference to particulars, questions arise either about some common term, as "Whether he has committed sacrilege who has stolen a private person's money from a temple," or about a name given to some particular act, when it is certain that an act has been done, and there is no doubt about the act that has been done. Under this head are included all questions about what is honorable, just, expedient. 42. In these positions, too, are said to be comprehended others, because quantity is sometimes referred to conjecture, as in the question, "Is the sun greater than the earth?" and sometimes to quality, as when it is asked, "What degree of punishment or reward is it just for some particular individual to receive," because, also, exception has relation to quality, and definition is concerned with exception. 43. Moreover, contradictory laws, and the ratiocinatory position, that is, the syllogism, and questions in general regarding writings and the intention of the writer, depend on considerations of equity (except that this last case sometimes admits of conjecture, as when we inquire what the legislator meant). But ambiguity must necessarily be explained by conjecture, because, as it is plain that the words may be understood in two ways, the question is solely about the intention. 44. By a great number of writers there are recognized three general positions, a division which Cicero also adopts in his Orator, expressing his opinion that everything that can become a subject of controversy or dispute is comprehended in the questions "Whether it is," "what it is," and "of what particular nature it is"; the names are too well known to make it necessary to mention them. Patrocles is of the same opinion. 45. Marcus Antonius also made three positions, as in the following words: "The questions from which all pleadings arise are but few: whether a thing has been done or has not been done; if whether it is right or wrong; whether it is good or bad." But since that which we are said to have done rightly is understood in such a sense that we appear to have acted, not merely in conformity with the law, but in accordance with equity, those who have followed Antonius have been inclined to distinguish those positions more exactly. Consequently, they have called them the conjectural, the legal, and the juridical, a distinction which is approved by Virginius. 46. Of these they then made several species, so as to put definition under the legal position, as well as other positions which have their name from what is written. These include contradictory laws, which is called ἀντινομία (antinomia); that of writing and meaning or intention, that is, κατὰ ῥητὸν καὶ διάνοιαν (kata rhēton kai dianoian); that of μετάληψις (metalepsis), which we distinguish by different terms, as translative, transsumptive, transpositive; the syllogism, which we call the ratiocinatory or collective position; and that of ambiguity, which is called in Greek ἀμϕιβολία (amphibolia): all which I have enumerated, because they are called positions by most writers, though some would prefer that they should be called legal questions. 47. Athenaeus has made four positions, the προτρεπτικὴ (protreptikē) or παρορμητικὴ στάσις (parormētikē stasis), that is, the exhortative, which belongs properly to the suasory; the συντελικὴ (suntelikē), by which it appears from what follows, rather than from the name itself, that the conjectural is signified; the ὑπαλλακτικὴ (hypallaktikē), which is the definitive, for it consists in a change of terms; and the juridical, which he distinguishes by the same Greek name as other writers. For there is, as I said, great variation as to names. 48. There are some who think the ὑπαλλακτικὴ στάσις (hypallaktikē stasis) is the exceptional, looking to the notion of change contained in the name. Others, as Caecilius and Theon, have made the same number of positions, but of a different kind: "Whether a thing is?" "What it is?" "Of what species it is?" and "How great it is?" 49. Aristotle in his Rhetoric divides the whole matter into three parts: What is true, what is to be sought or avoided (which belongs to the deliberative department of oratory), and the consideration de eadem atque alio, "about identity and difference;" but, by division, he arrives at such a conclusion that he thinks we must examine, as to any thing, whether it is, of what nature it is, how great it is, and of what parts it consists. In one place, however, he notices the force of definition, where he says that some charges are thus met: "I have taken, but I have not stolen; I struck, but I did nothing wrong." 50. Cicero also in his books of rhetoric had enumerated four positions regarding fact, name, kind, and action, so that conjecture should refer to fact, definition to name, quality to kind, and right to action. Under right he had included exception. But in another place he treats legal questions as species of actions. 51. Some writers on rhetoric have made five positions, those of conjecture, definition, quality, quantity, and relation. Theodorus also, as I remarked, adopts the same number of general heads, whether a thing is, what it is, of what species it is, how great it is, and to what it has reference. The last he regards as having most concern with comparison, since better and worse, greater and less, are terms that have no meaning unless they refer to something. 52. But relation, as I observed before, affects questions of legal right, such as, "Has this man a right to go to law?" or "Is it fit that such a person should do such a thing?" or "May he proceed against a particular person," or "at a particular time," or "in a particular manner?" for all such inquiries must have reference to something. 53. Others think that there are six positions: conjecture, which they call γένεσις (genesis); quality, peculiarity, that is, ἰδιότης (idiōtēs), a term in which definition is implied; quantity, which they call ἀξια (axia); comparison; exception, for which, also, a new name, μετάστάσις (metastasis), has been found (new, I mean, as applied to positions, for it had been previously used by Hermagoras in a different way, to denote one of the various sorts of juridical questions). 54. Others have been of opinion that there are seven, by whom neither exception, nor quantity, nor comparison were admitted, but in place of those three were substituted four sorts of legal questions, which were added to the three positions determined by reasoning. 55. Others have gone so far as to make eight, adding exception to the other seven. By some writers another distinction has been introduced, that of giving the name of "positions" only to the status rationales, and calling the status legales, as I said before, "questions." In the former, the question is about fact, while in the latter, about the written letter. Others, on the contrary, have preferred that the status legales should be called "positions," and the status rationales "questions." 56. But others have thought that there are only three status rationales—whether a thing is, what it is, and of what kind it is; Hermagoras is the only one who has made four—conjecture, peculiarity, exception, and quality, the latter of which he calls, κατὰ συμβεβηκότα (kata symbebēkota), "according to accidents," adding as an explanation, "whether it happen to a person to be good or bad." 57. Quality he then distinguishes into four species: to things to be sought or avoided, which fall under the deliberative department of oratory; to persons, to whom the panegyrical kind applies; to things in general, a department which he calls πραγματική (pragmatikē), and in which the question is about things themselves, without any reference to persons, as "whether he is free who is under trial about his liberty; whether riches beget pride; whether a thing is just or good;" and to judicial questions, in which similar inquiries are made, but with regard to certain definite persons; as, "whether a certain person acted justly or well in a particular transaction?" 58. Nor am I ignorant that in the first book of Cicero on Rhetoric there is another explanation of the part relating to things in general, as it is there said that "it is the department in which it is considered what is right according to civil usage and according to equity; a department with which lawyers are thought by us to be specially concerned." 59. But what the judgment of Cicero himself was respecting these books, I have already mentioned; for into their pages were thrown the various portions of knowledge which he had brought from the school when a young man, and if there is any fault in them, it is that of his instructor; whether he was moved by the circumstance that Hermagoras places first under this head examples from questions of right, or by the consideration that the Greeks call interpreters of the law πραγματικοί (pragmatikoi). 60. Cicero, however, substituted for these books his excellent dialogues de Oratore, and, therefore, is not to be blamed as if he had delivered erroneous precepts. I return to Hermagoras. He was the first of all rhetoricians that made exception a distinct position, though some advances towards it, but not under that name, are found in Aristotle. 61. As to legal questions, he has specified these four: that which relates to what is written and what is intended (which he designates by the phrase κατὰ ῥητὸν καὶ ὑπεξαὶρεσιν (kata rhēton kai hypexairesin), that is, "the expression and the exception," the former of which terms is common to him with all other writers, the latter has been less used), that which is ratiocinatory or dependent on reasoning, that of ambiguity, and that which concerns contradictory laws. 62. Albutius, adopting the same division, withdraws "exception," putting it under the juridical department. In legal questions also he thinks that there is no position which is properly called ratiocinatory. I am aware that those who shall read the ancient writers with attention will find still more positions, but I am afraid that what I have said on this subject has exceeded due bounds. 63. For myself, I confess that I am now inclined towards an opinion somewhat different from that which I formerly held, and perhaps it would be safest for me, if I regarded only my own reputation, to make no change in that which for many years I have not only thought but have sanctioned with my approbation. 64. But I cannot endure to be guilty of dissimulation in any point on which I give judgment, especially in a work which I am composing with a view to being of some profit to well-disposed young men. For Hippocrates, so celebrated in the art of medicine, is thought to have acted most honorably in acknowledging some mistakes that he had made, in order to prevent posterity from erring with him. Cicero, too, did not hesitate to condemn some of his published works and others which he wrote afterwards, as his Catullus and Lucullus, and those books on rhetoric to which I just now alluded. 65. For longer perseverance in study would be superfluous, if we were not at liberty to find out something better than what was advanced before. Nothing, however, of what I then taught was useless, for what I shall now teach will recur to the same principles, so that no one will repent of having learned from me. All I intend to do is to reproduce the same materials and to arrange them with somewhat better effect. But I wish every one to be satisfied that I communicate new light to others as soon as I have gained it myself. 66. According to the system of most authors, then, I adhered to three ratiocinatory positions, those of conjecture, quality, and definition, and one legal. These were my general positions. The legal I divided into five species, those relating to writing and intention, contradictory law, induction, ambiguity, and exception. 67. I now see that the fourth of the general positions may be withdrawn from them, for the primary division is sufficient by which I pronounced some positions to be ratiocinatory, others legal. Thus the fourth will not be an position, but a species of question, otherwise it would be a ratiocinatory position. 68. From those also, which I called species, I withdrew exception, having frequently indeed observed (as all who listened to my instructions can remember) and having asserted even in those lectures which were published without my consent (but in which I, however, included this remark) that the position of exception can scarcely be found in any cause so evidently that some other may not seem to be rightly named in that cause instead of it, and that in consequence, that position had by some writers been wholly set aside. 69. Yet I am not ignorant that many cases are treated under this position of exception, as in almost all causes in which a person is said to have failed from irregularity in for, such questions as these arise: "Whether it was lawful for such a person to bring an action at all, or against some other particular person, or before some particular judge, or at some particular time," and whatever other similar questions may be asked. 70. But persons, times, suits, and other matters are considered under the position of exception for some pre-existent cause, so that the question lies not in the position of exception itself, but in the cause for which recourse is had of the position of exception. "You ought not to seek restitution of this deposit before the praetor, but before the consuls, for the sum is too great to come under the cognizance of the praetor"; the question then is, "whether the sum is too great for the praetor's cognizance;" and this is a question as to fact. 71. "It is not lawful for you to proceed against me, for you could not become agent for the opposite party"; here the question for judgment is, "whether he could become agent." "You ought not to have proceeded by interdict, but to have made a demand"; the matter in doubt is, "whether the proceeding by interdict was right." 72. All these points come under the head of legal questions. Do not prescriptions, also, (even those in which exception appears most manifest) lead to the same sorts of questions as those laws under which the action is brought, so that the inquiry will be either about the name of an act, about what is written and the intent of the writer, or about something to be settled by argument. The position then springs from the question; the position of exception does not embrace the point for which the pleader contends, but the question because of which he contends. 73. This will be made plainer by an example: "You have killed a man, I have not killed him"; the question is "whether the accused did kill the man," and the position is the conjectural. The following case is different: "I have a right to proceed against you; you have not"; when the question will be, "whether he has a right," and hence the position. For whether he be allowed to have a right or not belongs to the event, not to the cause, and to that which the judge may decide, not to that because of which he may give such decision. 74. This is similar to it: "You deserve to be punished; I do not deserve to be punished"; the judge will see whether he does deserve to be punished, but here there will not be either question or position; where then? "You deserve to be punished, for you have killed a man; I have not killed a man"; here then is a question "whether he did kill a man?" "I ought to be honored; you ought not"; is there here any position? I think not. "I ought to be honored, for I have killed a tyrant; you have not killed a tyrant"; here there is both question and position. 75. In like manner, "You have no right to proceed against me; I have a right," has no position; where is it then? "You have no right to proceed against me, because you are infamous"; here the question is "whether he is infamous" or "whether an infamous man has a right to proceed against another"; and here are both questions and position. The kind of cause is therefore exceptional, like the comparative and that of recrimination. 76. But, you will say, "I have a right; you have not," is similar to "you have killed; I did right in killing"; I do not deny that it is so, but this does not make an position, for these are not propositions (if they were, the cause would receive no explanation from them). as propositions must be accompanied with reasons. "Horatius committed a crime, for he killed his sister; he committed no crime, for he had a right to kill her who mourned at the death of an enemy"; the question here will be, "whether this was a sufficient reason for killing her," and thus the position will be that of quality. 77. In like manner with regard to exception: "You have no right to disinherit your son, for an infamous person is not allowed to engage in any legal process; I have a right, for disinheriting is not a legal process"; the question is, "what is a legal process?" here we shall use definition; "you are not allowed to disinherit;" here will be the syllogism. The case will be similar with regard to all matters concerning the ratiocinatory and legal positions. 78. I am not unaware, however, that some have included exception under the ratiocinatory kind of positions, in this way: "I have killed a man, but by order of the emperor"; "I gave up the offerings in the temple to a tyrant, but he compelled me to do so"; "I quitted my post, but through being harassed by bad weather, floods, ill-health"; that is, it was not my fault, but the fault of those circumstances. 79. From these authors I differ still more widely, for it is not the act that is brought under the exceptional position, but the cause of the act, as happens indeed in almost every defense. Besides, he who adopts such a mode of defense does not depart from the position of quality, for he says that he himself is free from blame. As a result, two kinds of quality are rather to be distinguished: one by which the act and the accused party are defended, the other by which the accused only is defended. 80. We must therefore adhere to those writers whose authority Cicero has followed and who say that there are three points about which there is a question in every cause—whether a thing is, what it is, and of what species it is—for this is a distinction which even nature herself teaches us. First of all, there must be something which is the object of the question; what it is and of what species it is certainly cannot be determined until it be settled that it really exists, and this, therefore, is the first question. 81. But as to that which is proved to exist, it does not immediately appear what it is. When this point is also decided, there remains, last of all, the quality, and when all these particulars are settled, nothing further is left. 82. Under these heads are contained indefinite and definite questions; some of these heads are considered in whatever kind of matter we discuss, whether demonstrative, deliberative, or judicial. They comprise also suits at law, whether regarded with reference to ratiocinatory or to legal questions, for there is no legal dispute which is not to be resolved by the aid of definition, consideration of quality, or conjecture. 83. But to those who are instructing the ignorant, a plan more extended at first, and a road, if not marked out by the straightest possible line, yet more easy and open, will not be without advantage. Let students learn, therefore, before all, that there are four modes of proceeding in every cause and that he ought to make it his first business to consider which four modes he who is going to plead. Beginning first of all with the defendant, by far the strongest mode of defense is if the charge which is made can be denied; the next, if an act of the kind charged against the accused can be said not to have been done; the third, and most honorable, if what is done is proved to have been justly done. If we cannot command these methods, the last and only mode of defense is that of eluding an accusation, which can neither be denied nor combated, by the aid of some point of law, so as make it appear that the action has not been brought in due legal form. 84. Hence arise questions referring either to the general action or to exception, for there are some things objectionable in their own nature, yet allowed by law, (as it was permitted, for instance, by the twelve tables, that the body of a debtor might be divided among his creditors; public feeling has set aside that law). Some things may be equitable in themselves, but prohibited by law, as liberty in making wills. 85. By the accuser nothing more is to be kept in view than that he must prove that something was done; that a particular thing was done; that it was done wrongfully; and that he brings his action according to law. Thus, every cause will depend upon the same sorts of questions, only the allegations of the different parties will sometimes be interchanged. In those causes in which the question is about a reward, it is for the plaintiff to prove that what was done was right. 86. These plans, as it were, and forms of proceeding, which I then called general positions, resolve themselves, as I showed, into two general kinds, the one dependent on reasoning, the other on legality. The one dependent on reasoning is the more simple, as it consists merely in the contemplation of the nature of things, and it is sufficient, therefore, in respect to it, to mention conjecture, definition, quality. 87. Of legal questions, there must necessarily be more species, as laws are numerous and have various forms. We rest on the words of one law and on the spirit of another; when we find no law ready to support us, we press some one into our service; we compare some, one with another; and we interpret some in a manner different from that in which they are usually understood. 88. Thus from those three positions spring the following resemblances as it were of positions, sometimes simple, sometimes mixed, yet always wearing their own peculiar appearance, as that which refers to what is written and what is intended, which, without doubt, is included under quality or conjecture; that which is treated by syllogism, which has regard especially to quality; that which respects contradictory laws, which belongs to the same positions as what is written and what is intended; and that referring to ambiguity, which is always settled by conjecture. 89. Definition also is common to both kinds of questions, those which depend on the consideration of matters of fact, and those which are to be decided by adherence to the written letter. All these questions, though they fall under those three positions, yet since they have severally, as I said, something peculiar, appear necessary to be explained to learners. They may be allowed to call them either legal positions or questions, or secondary heads, if they but understand that nothing is sought in them but what is contained under the three general heads which I have before mentioned. 90. But with questions referring to quantity, to a whole as consisting of parts, to relation, and, as some have thought, to comparison, the case is not the same. They are to be regarded, not as concerning differences in the laws, but as dependent on reasoning alone, and are, therefore, always to be placed under conjecture or quality, as when we ask with what intention a person did anything, or at what time, or in what place. 91. But I shall speak of particular questions when I proceed to treat of the rules for division. This is agreed among all writers: that in every simple cause, there is but one single position. But that many questions, which, as secondary points, are referred to that in which the main point for judgment is contained, may be comprised in one and the same cause. 92. I also think that it is sometimes doubtful what position we ought to adopt, as many means of defense are employed against one accusation. As it is said with regard to the color of a statement of facts, that that is the best which a speaker can best maintain, so it may be said in this case also, that that position should be chosen in support of which the orator can put forth most strength. 93. Accordingly, in settling a mode of defense for Milo, one course found favor with Cicero, when he pleaded the cause, and another with Brutus, when he composed a speech for Milo by way of exercise, as Cicero maintained that Clodius had been killed deservedly, as a lier-in-wait, yet without intention on the part of Milo, but Brutus even gloried on behalf of Milo that he had killed a bad citizen. 94. But in complex causes, two or three positions may be found, either of different kinds, as when a person denies that he did one thing and maintains that he was in the right in doing another, or of the same kind, as when a person denies two charges, or all the charges brought against him. 95. This happens, also, when there is a question about some one thing which several persons are trying to obtain, either all relying on the same kind of claim, as that of relationship; or some on one kind and some on another, as some on a will and some on relationship. But whenever there are several claimants, and one kind of defense is made against one and another against another, there must necessarily be several kinds of positions. Consider the following subject of controversy, the law standing thus: 96. Let wills made according to the laws be valid. Let the children of intestate parents be heirs. Let a disinherited son possess none of his father's property. Let an illegitimate son, if born before one that is legitimate, be to his father as legitimate; if born after, only as a citizen. Let it be lawful for every father to give his son in adoption. Let it be lawful for every son given in adoption to return into his own family if his natural father dies without children. 97. A father, who, having two sons, had allowed one to be adopted by another man and had disinherited the other, had afterwards an illegitimate son, and then, after appointing the disinherited son his heir, died. All the three laid claim to the estate (Let me observe that the Greeks call an illegitimate son νόθος (nothos); we have no Latin term exactly corresponding it, as Cato remarks in one of his speeches, and, therefore, adopt the Greek word. But let us attend to our subject). 98. The law, "Let a disinherited son possess none of his father's property," was opposed to him who was named as heir in the will, and hence arose the position referring to what is written and what is intended, it being inquired "whether he could inherit in any way? Whether according to the intention of the father? Whether as being named as heir in the will?" As to the illegitimate son, there arise two considerations: that he was born after the legitimate sons and that he was not born before a legitimate one. 99. The first consideration goes into the syllogism or inference, "whether sons alienated from the family are in the same condition as if they had never been born?" The other is that regarding what is written and what is intended, for it is admitted that he was not born before a legitimate son. But he will rest his cause on the intention of the law, which he will say was that an illegitimate son, born when there was no longer a legitimate son in the family, should be considered as legitimate. 100. He will also set aside the written letter of the law by saying that "it is certainly no detriment to an illegitimate son if a legitimate one was not born after him," and will insist on this argument: Suppose that only an illegitimate son is born; in what relation will he stand to his father? Only as a citizen? Yet he will not be born after a legitimate son. Will he be as a son in every respect? Yet he will not be born before a legitimate one. If, therefore, we can conclude nothing from the words of the law, we must take our stand on the intention of it. 101. Nor let it perplex any one that two positions arise from one law; the law is two-fold and has accordingly the form of two laws. To the son wishing to return into the family, it will be said, in the first place, by him who is named as heir in the will, "Though it be lawful for you to return, I am still heir." The position will be the same as in regard to the claim of the disinherited son, for the question is "whether a disinherited son can be heir?" 102. In the next place, it will be said by both (as well by the one who is named heir as by the illegitimate one), "It is not lawful for you to return into the family, for our father did not lie without children." But in saying this, each of the two will rest his case on his own peculiar ground, for the disinherited son will assert, "that a disinherited son is also one of the children" and will draw a proof of his assertion, from the very law by which it is pretended that he is set aside. It would be superfluous, he would say, for a disinherited son to be forbidden to inherit the property of his father, if he were to be accounted as a stranger, but, as he would have been, by his right as a son, the heir of his father if he had died without a will, the law is now brought against him, which, however, does not prevent him from being a son, but from being an heir. The position, then, will be that of definition: the question, "what is a son?" 103. The illegitimate son, on his part, will allege that his father did not die without children, resting on the same arguments which he used in making his claim at first, to show that he was a son, unless he also have recourse to the position of definition and ask, "whether illegitimate children are not children?" There will thus be in this one cause either two special legal positions: those of the letter and intention and the syllogism, besides one of definition; or those three which are the only real and natural positions: that of conjecture, with regard to the writing and intention of the writer, that of quality in the syllogism, and that of definition, which sufficiently explains itself. In every kind of legal controversy, too, must be comprehended a cause, a matter for judgment, and the containing point, for there is nothing brought into question in which there is not some reason, something to which judgment is directed and something which chiefly contains the substance of the matter in question. But as these things vary according to the nature of causes and as they are taught by most of the writers on judicial pleadings, let them be reserved for the part in which I shall treat of such affairs. For the present, as I have divided causes into three kinds, I shall follow the order which I have prescribed to myself.
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