Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
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
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.
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.
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
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?
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.
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.
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.
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.
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.
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.
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. [*](About 384 sesterces go to the pound of silver.) 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.
The same basis includes such general questions as to whether we should stand by the
The next subject which comes up for discussion is that of contrary laws. [*](See III. vi. 46.) For all writers of text-books are agreed that in such cases there are two bases involving the letter and the intention of the law respectively. This view is justified by the fact that, when one law contradicts another, both parties attack the letter and raise the question of intention, while the point in dispute, as regards each law, is whether we should be guided by it at all.
But it is clear to everybody that one law cannot contradict another in principle (since if there were two different principles, one law would cancel the other), and that the laws in question are brought into collision purely by the accidents of chance. When two laws clash, they may be of a similar nature, as for instance if we have to compare two cases in which a tyrannicide and a brave man are given the choice of their reward, both being granted the privilege of choosing whatever they desire. In such a case we compare the deserts of the claimants, the occasions of the respective acts and the nature of the rewards claimed.
Or the same law may be in conflict with itself, as in the case where we have two brave men, [*](Both claiming the reward allotted by the law.) two tyrannicides [*](Both claiming the reward allotted by the law.) or two ravished women, [*]( Two women, both dishonoured by one man, put in different claims, both of which are provided for as alternatives in the same law. A. demands the ravisher's death, B. demands his hand in marriage. ) when the question must turn either on time (that is, whose claim has priority) or on quality (that is, whose claim is the more just). Again, we may have a conflict between diverse, similar or dissimilar laws.
Diverse laws are those against which arguments
A magistrate shall not quit the citadel. One who has rendered heroic service to his country may choose what reward he pleases. A magistrate who left his post and saved his country, demands an amnesty for his conduct.In this case, even though there be no other law covering the case, we may raise the question whether a hero ought to be granted anything he chooses to claim. Again, many conclusive arguments may be brought against the letter of the law restricting the movements of the magistrate: for example, a fire may have broken out in the citadel, or a sally against the enemy may have been necessary.
Laws are styled similar when nothing can be opposed to one except the other.
Tyrannicides shall have their statues set up in the gymnasium. A statue of a woman shall not be set up in the gymnasium. A woman killed a tyrant.Here are two conflicting laws: for a woman's statue cannot under any other circumstances be erected in the gymnasium, while there is no other circumstance which can bar the erection of the statue of a tyrannicide in the gymnasium.
Laws are styled dissimilar when many arguments can be urged against one, while the only point which can be urged against the other is the actual subject of dispute. An example is provided by the case in which a brave man demands the pardon of a deserter as his reward. For there are many arguments, as I have shown above, which can be urged against the law permitting a hero to choose whatever reward he will, but the letter of the law dealing with the crime of desertion cannot be overthrown under any
Again, the point of law is either admitted by both parties or disputed. If it be admitted, the questions which are raised will as a rule be such as the following. Which of the two laws is the most stringent? Does it concern gods or men, the state or private individuals, reward or punishment, great things or small? Does it permit, forbid or command?
Another common question is which of the two laws is the oldest; but the most important question is which of the two laws will suffer less by its contravention, as for example in the case of the hero and the deserter just mentioned, in which case, if the deserter is not put to death, the whole law is ignored, whereas, if he be put to death, the hero will still have another choice left open to him. It is, however, of the utmost importance to consider which course is best from the point of view of morality and justice, a problem for the solution of which no general rules can be laid down, as it will depend on the special circumstances of the case.