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6. Lawyers frequently raise the question of the
letter and the intention of the law, in fact a large
proportion of legal disputes turn on these points.
We need not therefore be surprised that such
questions occur in the schools as well, where they
are often invented with this special purpose. One
form of this kind of question is found in cases where
tile enquiry turns both on the letter and the spirit
[p. 137]
of a law.
[2]
Such questions arise when the law presents
some obscurity. Under these circumstances both
parties will seek to establish their own interpretation
of the passage and to overthrow that advanced by
their opponent. Take for example the following
case. “A thief shall refund four times the amount
of his theft. Two thieves have jointly stolen 10,000
sesterces. 40,000 are claimed from each. They
claim that they are liable only to pay 20,000 each.”
The accuser will urge that the sum which he claims
is fourfold the amount stolen; the accused will urge
that the sum which they offer to pay is fourfold.
The intention of the law will be pleaded by both
parties.
[3]
On the other hand, the dispute may turn
on a passage of the law which is clear in one sense
and doubtful in another. “The son of a harlot shall
not address the people. A woman who had a son
became a prostitute. The youth is forbidden to
address the people.” Here there is no doubt about
the son of one who was a prostitute before his birth,
but it is doubtful whether the law applies to the case
of one born before his mother became a prostitute.
[4]
Another question which is not infrequently raised is
as to the interpretation of the law forbidding an action
to be brought twice on the same dispute, the problem
being whether the word twice refers to the prosecutor
or the prosecution. Such are the points arising out
of the obscurity of the law.
A second form of question turns on some passage
where the meaning is clear. Those who have given
exclusive attention to this class of question call it
the basis concerned with the obvious expression of the
law and its intention. In such circumstances one
party will rest their case on the letter, the other
[p. 139]
on the intention of the law.
[5]
There are three
different methods in which we may combat the letter.
The first comes into play where it is clear that it is
impossible always to observe the letter of the law.
“Children shall support their parents under penalty
of imprisonment.” It is clear, in the first place, that
this cannot apply to an infant. At this point we
shall turn to other possible exceptions and distinguish
as follows. “Does this apply to everyone who refuses
to support his parent? Has this particular individual
incurred the penalty by this particular act?”
[6]
The
second arises in scholastic themes where no argument can be drawn from the particular law, but the
question is concerned solely with the subject of the
dispute. “A foreigner who goes up on to the wall
shall be liable to capital punishment. The enemy
had scaled the wall and were driven back by a
foreigner. His punishment is demanded.”
[ 7]
In this
case we shall not have two separate questions,
namely, whether every foreigner who goes up on
the wall is liable to the penalty, and whether this
particular foreigner is liable, since no more forcible
argument can be brought against the application of
the letter of the law than the fact in dispute, but the
only question to be raised will be whether a foreigner
may not go on to the wall even for the purpose of
saving the city. Therefore we shall rest our case on
equity and the intention of the law. It is, however,
sometimes possible to draw examples from other laws
to show that we cannot always stand by the letter,
as Cicero did in his defence of Caecina.
[8]
The third
method becomes operative when we find something
in the actual words of the law which enables us to
prove that the intention of the legislator was different.
[p. 141]
The following theme will provide an example. “Anyone who is caught at night with steel in his hands
shall be thrown into prison. A man is found wearing a steel ring, and is imprisoned by the magistrate.”
In this case the use of the word caught is sufficient
proof that the word steel was only intended by the
law in the sense of a weapon of offence.
[9]
But just as the advocate who rests his case on the
intention of the law must wherever possible impugn
the letter of the law, so he who defends the letter
of the law must also seek to gain support from the
intention. Again, in cases concerned with wills it
sometimes happens that the intention of the testator
is clear, though it has not been expressed in writing:
an example of this occurs in the trial of Curius, which
gave rise to the well-known argument between
Lucius Crassus and Scaevola.
[10]
A second heir had
been appointed in the event of a posthumous son
dying while a minor. No posthumous son was born.
The next of kin claimed the property. Who could
doubt that the intention of the testator was that
the same man should inherit in the event of the
son not being born who would have inherited in the
event of his death? But he had not written this in
his will.
[11]
Again, the opposite case, that is to say,
when what is written is obviously contrary to tile
intention of the writer, occurred quite recently. A
man who had made a bequest of 5000 sesterces, on
altering his will erased the word sesterces and inserted
pounds of silver.1 But it was clear that he had meant
not 5000 but 5 pounds of silver, because the weight
of silver mentioned in the bequest was unparalleled
and incredible.
[12]
The same basis includes such general
questions as to whether we should stand by the
[p. 143]
letter or the intention of the document, and what
was the purpose of the writer, while for the treatment of such questions we must have recourse to
quality or conjecture, with which I think I have dealt
in sufficient detail.
1 About 384 sesterces go to the pound of silver.
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