In a
most elegant and fluent manner did Lucius Crassus, by far the most eloquent of all men, a little
before we came into the forum, defend this opinion in a trial before the centumviri; The origin, constitution, and powers of the
centumviri are exceedingly obscure; they were judges, but
they differed from other judges in being a definite body or collegium. According to Festus three centumviri
were chosen out of each tribe, so that their actual number must have been a hundred and five.
Their powers were probably limited to Rome, and at
all events to Italy. It appears that they had
cognisance of both civil and criminal matters. It was the practice to set up a spear in the
place where the centumviri were sitting, and accordingly the
word hasta or hasta
centumviralis, is sometimes used as equivalent to judicium
centumvirale. Vide Smith, Dict. Ant. p. 212, v.
Centumviri.and with great ease, too, though that very
sagacious man, Quintus Mucius, was arguing against him, did he prove to every one that Marcus
Curius, who had been left a certain person's heir in the case of the death of a posthumous son
who was expected, ought to be the heir, though the son was not dead, never, in fact, having been
born. What? was this case sufficiently provided for by the terms of the will? Certainly not.
What was the thing, then, that influenced the judges? The intention; and if it could be
understood though we were silent, we should not employ words at all: because it could not, words
have been invented, not to hinder people's intentions, but to point them out.
The law commands the property in land to be determined by two years' possession. But we adopt
the same principle also in the case of houses, which are not mentioned at all in the law. If a
road is not properly made, the law allows a man to drive a beast of burden wherever he likes.
Can it be understood from this, that if a road in the Bruttii be out of repair, a man may, if he
pleases, drive his beast through the Tusculan farm of Marcus Scaurus? There is a right of action
against a vendor who is present, according to this formula, “Since I behold you before the
court.” . . . Now the blind Appius could never have availed himself of this form of action, if
men adhered to words with such strictness as not to consider the matter for the sake of which
the words are used. If a person's heir had been stated in his will to be the minor Cornelius,
and if Cornelius were twenty years old, according to your interpretation he would lose his
inheritance.
Many such cases occur to me at present, and
still more to you, I am quite sure. But not to dwell on too many such points, and not to wander
too far from where we set out, let us consider this very interdict which is now before the
court; for by that very document you will understand, that if we determine that the law depends
on its precise words, we shall lose all the advantage of this interdict, while we wish to be
very acute and clever. “Whence you, or your household, or your agent . . . ” Suppose your
steward by himself had driven me away, your household would not, as I suppose, have driven me
away, but only a member of your household. Would you then have a right to say that you had made
the necessary restitution? No doubt; for what can be more easy than to prove to all those who
understood the Latin language, that the name of a household does not apply to one single slave?
But suppose you have not even one slave besides the one who drove me away; then you would cry
out, “If I have a household, I will admit that you were driven away by my household.” Nor is
there any doubt, that, if we are influenced in our decisions by the mere letter of the law, and
not by the facts, we must understand a household to consist of many slaves, and we must admit
that one slave is not a household.
The expression certainly
does not only require this, but even compels it. But let all consideration of law, and the
effect of the interdict, and the intention of the praetor, and the wisdom and authority of
prudent men, reject this defence and treat it as worthless.
What, then, are we to think? Cannot those men speak Latin? Yes, they speak it sufficiently to
make their intentions understood. As their object was that you should replace me in my property,
whether it was you yourself who drove me away, or any one of your relations, or of your
servants, or of your friends, they did not specify the number of servants, but classed them all
under one name as your household.