or to the suit.

obscurity of laws.

Such are the questions that arise from the

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 inqy 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 defence 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 Cæcina.+ 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 *Propter hoc.] Spalding conjectures præter hoc. † C. 14, and especially 18, 19.

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 endeavour, 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 Scævola occurred.* 10. A second heir was appointed, if a posthumous son should die before he 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 some thing 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.

*Cic. De Orat. i. 39; ii. 32.

✦ Something more than £40.

The only foundations for arguments in such cases, are, either to show that what you advance is probable, which belongs to conjecture, or just, which belongs to quality. See c. 2, sect. 4. Spalding.

CHAPTER VII.

Of contradictory laws, § 1-6. Right is either admitted or doubtful, 7-9. Contradictory points in the same law, 10.

1. THE next head to be considered is that of contradictory laws, because it is agreed among all writers on rhetoric that in antinomia,* there are two states regarding letter and intent; and not without reason; because, when one law is opposed to another, there arise, on both sides, objections against the letter, and questions regarding the intention; and it becomes a matter of dispute, with respect to each law, whether we ought to be guided by that law. 2. But it is obvious to everybody that one law is not opposed to another in strict equity; for, if there were two kinds of equity, the one must be abrogated by the other; but that the laws clash with each other only casually and accidentally.

The laws that interfere with one another may be of a like nature, as, if the option§ of a tyrannicide, and that of a man who has saved his country, occur at the same time, liberty being granted to each of choosing what he pleases, there would hence arise a comparison of their respective services, of the conjunctures in which they acted, and of the nature of the recompences on which they fix their thoughts. 3. Or the same 2 law may be opposed to itself; as in the case of two deliverers of their country, two tyrannicides, two women who have been violated;|| in regard to whom there can be no other question but that of time, whose claim had the priority, or of quality, whose claim is the more just. 4. Dissimilar or similar laws, also, are sometimes in conflict. Dissimilar laws are such as may be attacked by arguments of a different kind even though

* III. 6, 46.

+ One state regarding the letter, and one regarding the intent, in reference to each law; as Pithoeus remarks.

Et utrinque, in the text, should probably be utrinque et, as Spalding observes.

S V. 10, 97.

A common case in the schools, where it was an imaginary law that woman who had been forcibly violated might demand that the ravisher hould be put to death, or that he should marry her without receiving any dowry. In the case to which allusion is made in the text, one man is represented as having violated two women in one night, one of whom demands his death, and the other his hand in marriage. Regius.

Sup

no law be opposed to them; as in this case, Let not the commandant quit the citadel; Let the man who has saved his country choose what he pleases. [Suppose that the commandant and the deliverer of his country are the same person; then, with respect to him in his character of deliverer,]† though no law stand in the way, it may be inquired whether he ought to receive whatever he chooses; and, in regard to him in his character of commandant, many arguments may be urged by which the letter of the law is overthrown; for instance, if there be a fire in the citadel, or if it be necessary to sally forth against the enemy. 5. Similar laws are those to which no opposition can be made but that of another similar law. pose that one law says, Let the statue of a tyrannicide be placed in the gymnasium; that another law says, Let not the statue of a woman be placed in the gymnasium; and that a woman kills a tyrant; it is plain that neither under any other circumstances can the statue of a woman be placed there, nor the statue of a tyrannicide be prevented from being placed there. 6. Two laws are of unlike nature, when many arguments may be used against the one, and nothing can be said against the other but what is the subject of the controversy; as in the case where the deliverer of his country demands impunity for a deserter; for against the law regarding the deliverer of his country many arguments may be brought, as I have just remarked, but the law concerning deserters can be set aside only by the option allowed to the deliverer of his country.

7. In addition, the point of right involved in conflicting laws, is either admitted by both parties, or doubtful. If it is admitted, there commonly follow such questions as these: Which of the two laws is the more binding; whether it relates to gods or men; to the state, or to private individuals; to reward or to punishment; to great or small matters; whether it permits, forbids, or commands. 8. It is a common subject of inquiry, too, which of the two laws is the more ancient; but the most import ant consideration is, which of the two laws will suffer less; as in

* It will be an example of antinomia, if the commandant of a citadel, who has saved his country, demand permission to quit his post. Turnebus.

+ The words in brackets are supplied as necessary to the sense. The text seems defective.

the case of the deserter and the deliverer of his country; for if the deserter be not put to death, the whole law regarding deserters is set aside; but if he is put to death, another choice may be allowed to the deliverer of his country. It is, however, of great consequence which course is the better and more equitable; a point on which no direction can be given but when the case is proposed for consideration. 9. If the point of right b6 doubtful, then arises a question on one side, or on both sides reciprocally, respecting it; as in such a case as this: Let a father have the power of seizing the body of his son, and a patron that of seizing his freedman: Let freedmen belong to the heir: A certain person made the son of his freedman his heir, after his death the right of seizure is claimed both by the son of the freedman and the freedman himself, each over the other; and the son, now become patron, denies that his father was possessed of the rights of a father, because he was subject to a patron.

10. Two provisions in a law may interfere with one another, as well as two laws. Thus, Let an illegitimate son, born before a legitimate one, be to his father as legitimate; if born after an illegitimate, only as a citizen.*

What I say of laws, is also to be said of decrees of the senate. If they contradict each other, or are at variance with the laws, there is still no other name † for the state of the question.

CHAPTER VIII.

Of syllogism; intimately connected with definition, § 1, 2. Determines by inference what is uncertain in the letter of any writing, 3-6. Or even what is not expressed in the writing, 7.

1. THE state called syllogism has some resemblance to that of letter and intention, inasmuch as one party, under it, always takes its stand o the letter; but there is this difference, that in the state of letter and intention, arguments are brought against the letter, in that of syllogism the meaning is carried beyond the letter; in the former, he who adheres to the letter, * See iii. 6, 96.

+ It will always be called antinomia. Cappe: onier.