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Book 7 - Chapter 6
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Questions about writing, and the intention of the writer, either regard both these points, or one only, § 1-4. Arguments against the letter in writings, 5-8. In favor of it, 9-11. General questions under this head, 12.
1. THE question of most frequent occurrence among lawyers is concerning the written letter of a law, and the intention of it; and it is about such questions that a great part of legal discussion is employed. It is, therefore, not at all wonderful that they prevail in the schools, where cases involving them are purposely invented. One species of this kind of question, is that in which there is a dispute about the letter of a law as well as the intention of it. 2. This occurs where there is any obscurity in a law, of which each party supports his own interpretation, and tries to overthrow that of his adversary; as in this case: Let a thief pay fourfold what he has stolen: Two thieves stole in company ten thousand sesterces; forty thousand are demanded from each; they represent that they ought to pay only twenty thousand each: here the prosecutor will say that what he demands is fourfold; and the thieves will say that what they offer is fourfold; and the intention of the law is alleged by each side in its own favor. 3. Or a dispute of this kind may occur when the wording of the law is clear in one sense, and doubtful in another; as, Let not the son of a harlot be allowed to make a speech to the people; A woman who had had a son by her husband, began to play the harlot: Her son prohibited from addressing the people. Here the letter of the law evidently refers to the son of a woman who was a harlot before he was born, and it is doubtful whether the case of the son in question does not come under the law, because he is the son of the woman named, and she is a harlot. 4. It is a common question, too, how the following law, Let there be no second pleading about the same matter, is to be understood; that is, whether the term second pleading refers to the pleader, or to the suit. Such are the questions that arise from the obscurity of laws.
But there are others that arise, and this is the second class, where the words of the law are clear; and those who have particularly attended to this point, have called it, the state of what is expressed and what is intended. In this case, the one party makes a stand on the letter, and the other on the meaning. 5. But the literal interpretation may be combatted in three ways. One is, when it is shown from the law itself that it cannot be observed invariably, as is the case with regard to the law, Let children maintain their parents, or be put in prison; for an infant will surely not be put in prison. From this exception there will be a possibility of proceeding to others, and of making a distinct inquiry whether every one who does not maintain his parents is to be put in prison, and whether the particular person in question. 6. For this reason some masters in the schools propose a sort of cases in which no argument can be drawn from the law itself, and in which the only question is concerning the matter that is the subject of controversy. For example, Let a foreigner, if he mounts the wall, be punished with death: The enemy having scaled the walls, a foreigner repulsed them: It is demanded that he be put to death. 7. Here there will not be distinct questions whether every stranger, or whether this stranger, should be put to death, because no stronger objection can be brought against the literal interpretation of the law than the act which is the subject of dispute. It is sufficient merely to ask whether a foreigner may not mount the walls even for the purpose of saving the city. The defense of the foreigner, therefore, must rest on equity and the intention of the law. It may happen, however, that we may be able to adduce examples from other laws, by which it may be shown that we cannot always adhere to the letter; a method which Cicero has adopted in his pleading for Caecina. 8. There is a third mode, when we find something in the very words of a law to prove that the legislator intended something different from what is expressed, as in this case: Let him who is caught with steel in his hand at night, be sent to prison: A magistrate sent to prison a man who was found with a steel ring. Here as the word in the law is "caught," it appears sufficiently clear that nothing is meant in it but steel intended for mischief.
9. But though he who rests on the meaning of the law, will endeavor, as often as he can, to explain away the letter of it; yet he, who adheres to the letter, will try at the same time to gain support from the intention of it. In wills it sometimes happens that the intention of the testator on a point is manifest, even though there be nothing written upon it, as in the case of Curius, when the well-known contest between Crassus and Scaevola occurred. 10. A second heir was appointed, if a posthumous son should die before be was past the years of tutelage: No posthumous son was born. The near relatives laid claim to the property. Who could doubt but that it was the will of the testator that the same person should be heir if a son was not born who was to be heir if a son died? But he had written nothing on the point. 11 . A case exactly the reverse of this lately occcurred, when something was written in a will which it was evident that the testator had not intended. A person who had bequeathed five thousand sesterces, having, in making a correction, erased the word "sesterces," inserted "pounds weight of silver," leaving the words "five thousand" standing. Yet it was apparent that he meant to leave five pounds weight of silver, for such a sum of silver as five thousand pounds weight for a legacy was unheard of and incredible. 12. Under this head fall the general questions, whether we ought to adhere to letter or intent and what was the intention of the writer under consideration. The methods of treating them are to be sought from quality or conjecture, of which I think that enough has been said.
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