4.39. Further there are cases where a senator sets forth to the senate the reasons which determine him to commit suicide, in which there is one legal question, namely, whether a man who desires to kill himself in order to escape the clutches of the law ought to be prevented from so doing, while the remaining questions are all concerned with quality. There are also fictitious cases concerned with wills, in which the only question raised is one of quality, as, for instance, in the controversial theme quoted above, where the philosopher, physician and orator all claim the fourth share which their father had left to the most worthy of his sons. The same is true of cases where suitors of equal rank claim the hand of an orphan and the question confronting her relatives is which is the most suitable.
4.39. , cum quis rationem mortis in senatu reddit, ubi una quaestio est iuris, an is demum prohibendus sit, qui mori vult ut se legum actionibus subtrahat; cetera qualitatis. et testamenta, in quibus de sola qualitate quaeratur, ut in controversia, quam supra exposui, in qua de parte patrimonii quarta, quam pater dignissimo ex filiis reliquerat, contendunt philosophus, medicus, orator. idem accidit, si orbae nuptias indicant pares gradu, et si inter propinquos de idoneo quaeratur.
4.40. I do not, however, intend to discuss every possible theme, since fresh ones can always be invented, nor yet to deal with all the questions to which they give rise, since these vary with circumstances. But I cannot help expressing my astonishment that Flavus, for whose authority I have the highest respect, restricted the range of quality to such an extent in the text-book which he composed for the special guidance of the schools.
4.40. mihi nec omnes persequi materias in animo est, fingi enim adhuc possunt; nec omnes earum quaestiones, quia positionibus mutantur. tantum admiror Flavum, cuius apud me summa est auctoritas, cum artem scholae tantum componeret, tam anguste materiam qualitatis terminasse.
4.41. Quantity also, as I have already stated, falls as a rule, though not always, under the head of quality, whether it is concerned with measure or number. Measure, however, sometimes consists in the valuation of a deed with a view to determining the amount of guilt or the amount of benefit involved, while, on the other hand, it sometimes turns on a point of law, when the dispute is under what law a man is to be punished or rewarded.
4.41. quoque, ut dixi, etiamsi non semper, plerumque tamen eidem subiacet, seu modi est seu numeri. modus aliquando constat aestimatione facti, quanta sit culpa, quantumve beneficium, aliquando iure, cum id in controversiam venit, qua quis lege puniendus vel honorandus sit:
4.42. For example is a ravisher to pay 10,000 sesterces because that is the penalty appointed by law, or is he liable to capital punishment as a murderer because his victim hanged himself? In such cases those who plead as if there were a question between two laws, are wrong: for there is no dispute about the fine of 10,000, since it is not claimed by the prosecution.
4.42. stuprator decem milia dare debeat, quae poena huic crimini constitute est, an, quia se stupratus suspendit, capite puniri tanquam causa mortis. in genere falluntur, qui ita dicunt, tanquam inter duas leges quaeratur: nam de decem milibus nulla controversia est, quae non petuntur.
4.43. The point on which judgment has to be delivered is whether the accused is guilty of causing his victim's death. The same type of case will also bring conjecture into play, when, for example, the question in dispute is whether the accused shall be punished with banishment for life or for five years. For the question then is whether he caused his death willingly or not.
4.43. iudicium redditur, an reus causa sit mortis. coniecturam quoque eadem species cadit, cum, perpetuo an quinquennali sit exilio multandus, in controversiam venerit; nam an prudens caedem commiserit quaeritur.
4.44. Again, there are questions concerned with numerical quantity which turn on a point of law, such as the questions whether thirty rewards are due to Thrasybulus, or whether, when two thieves have stolen a sum of money, they are each to be required to refund fourfold or twofold. But in these cases, too, valuation of the act is necessary, and yet the point of law also turns on quality.
4.44. quoque, quae ex numero ducitur, pendet ex iure, an Thrasybulo triginta praemia debeantur, et, cum duo fures pecuniam abstulerint, separatim quadruplum quisque an duplum debeat. hic quoque factum aestimatur et, tamen ius ipsum pendet ex qualitate.
5.1. V. He who neither denies nor defends his act nor asserts that it was of a different nature from that alleged, must take his stand on some point of law that tells in his favour, a form of defence which generally turns on the legality of the action brought against him.
5.1. neque fecisse se negabit neque aliud esse quod fecerit dicet neque factum defendet, necesse est in suo iure consistat, in quo plerumque actionis est quaestio.
5.2. This question is not, however, as some have held, always raised before the commencement of the trial, like the elaborate deliberations of the praetor when there is a doubt as to whether the prosecutor has any legal standing, but frequently comes up during the course of the actual trial. Such discussions fall into two classes, according as the point in dispute arises from an argument advanced by the prosecution or from some prescription (or demurrer) put forward by the defence. There have indeed been some writers who have held that there is a special prescriptive basis; but prescription is covered by precisely the same questions that cover all other laws.
5.2. non semper, ut quidam putaverunt, iudicium antecedit, qualia sunt praetorum curiosa consilia, cum de iure accusatoris ambigitur; sed in ipsis iudiciis frequentissime versatur. autem duplex eius disceptationis condicio, quod aut intentio aut praescriptio habet controversiam. fuerunt, qui praescriptionis statum facerent, tanquam ea non iisdem omnibus quibus ceterae leges quaestionibus contineretur.
5.3. When the dispute turns on prescription, there is no need to enquire into the facts of the case itself. For example, a son puts forward a demurrer against his father on the ground that his father has forfeited his civil rights. The only point which has to be decided is whether the demurrer can stand. Still, wherever possible, we should attempt to create a favourable impression in the judge as to the facts of the case as well, since, if this be done, he will be all the more disposed to give an indulgent hearing to our point of law: for example, in actions taking the form of a wager and arising out of interdicts, even though the question is concerned solely with actual possession, the question as to tile right to possession not being raised, it will be desirable to prove not merely that the property was actually in our possession, but that it was ours to possess.
5.3. ex praescriptione lis pendet, de ipsa re quaeri non est necesse. filius praescribit: de eo solo iudicatio est, an liceat. tamen poterimus, efficiendum est, ut de re quoque iudex bene sentiat; sic enim iuri nostro libentius indulgebit, ut in sponsionibus, quae ex interdictis fiunt, etiam si non proprietatis est quaestio sed tantum possessionis, tamen non solum possedisse nos, sed etiam nostrum possedisse docere oportebit. frequentius etiam quaeritur de intentione.
5.4. On tile other hand, the question more frequently turns on intention. Take the law “Let a hero choose what reward he will.” I deny that he is entitled to receive whatever he chooses. I cannot put forward any formal demurrer, but none the less I use the intention as against the letter of the law just as I should use a demurrer. In both cases the basis is the same.
5.4. fortis optet, quod volet. illi dandum, quidquid optaverit: non habeo praescriptionem, sed tamen voluntate contra verba praescriptionis nodo utor. utroque autem genere status iidem sunt.
5.5. Moreover every law either gives or takes away punishes or commands, forbids or permits, and involves a dispute either on its own account or on account of another law, while the question which it involves will turn either on the letter or the intention. The letter is either clear or obscure or ambiguous.
5.5. lex omnis aut tribuit aut adimit aut punit aut iubet aut vetat aut permittit. habet aut propter se ipsam aut propter alteram, quaestionem aut in scripto aut in voluntate.
5.6. And what I say with reference to laws will apply equally to wills, agreements, contracts and every form of document; nay, it will apply even to verbal agreements. And since I have classified such cases under four questions or bases, I will deal with each in turn.
5.6. aut apertum est aut obscurum aut ambiguum. de legibus dico, idem accipi volo de testamentis, pactis, stipulationibus, omni denique scripto, idem de voce. quoniam quattuor eius generis quaestiones vel status facimus, singulos percurram.
6.1. 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 of a law.
6.1. et voluntatis frequentissima inter consultos quaestio est, et pars magna controversi iuris hinc pendet; quo minus id accidere in scholis mirum est, ubi etiam ex industria fingitur. genus unum est, in quo et de scripto et de voluntate quaeritur.
6.2. 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.
6.2. tum accidit, cum est in lege aliqua obscuritas. ea aut uterque suam interpretationem confirmat, adversarii subvertit: ut hic, quadruplum solvat. surripuerunt pariter decem milia; petuntur ab utroque quadragena; illi postulant, ut vicena conferant; nam et actor dicit hoc esse quadruplum quod petat, et rei hoc quod offerant; voluntas quoque utrinque defenditur.
6.3. 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.
6.3. , cum de altero intellectu certum est, de altero dubium: meretrice natus ne contionetur. filium habebat, prostare coepit: prohibetur adolescens contione. de eius filio, quae ante partum meretrix fuit, certum est: an eadem huius causa sit, dubium est, quia ex hac natus est, antequam meretrix esset.
6.4. 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 on the intention of the law.
6.4. et illud quaeri, quo referatur, quod scriptum est, de eadem re ne sit actio; id est, hoc bis ad actorem an ad actionem? ex iure obscuro. genus est ex manifesto; quod qui solum viderunt, hunc statum plani et voluntatis appellarunt. hoc altera pars scripto nititur, altera voluntate. Sed contra scriptum tribus generibus occurritur.
6.5. 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?”
6.5. est, in quo ipso patet, semper id servari non posse: parentis alant ad vinciantur; non enim adligabitur infans. erit ad alia transitus, et divisio, num quisquis non aluerit, num hic propter hoc.
6.6. 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.”
6.6. tale genus controversiarum, in quo nullum argumentum est, quod ex lege ipsa peti possit, sed de eo tantum, de quo lis est, quaerendum est. Peregrinus, si murum ascenderit, capite puniatur. hostes murum ascendissent, peregrinus eos depulit; petitur ad supplicium.
6.7. 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.
6.7. erunt hic separatae quaestiones, an quisquis, an hic, quia nullum potest adferri argumentum contra scriptum vehementius eo quod in lite est; sed hoc tantum, an ne servandae quidem civitatis causa. aequitate et voluntate pugnandum. tamen potest, ut ex aliis legibus exempla ducamus, per quae appareat semper stari scripto non posse, ut Cicero pro Caecina fecit.
6.8. 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. 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.
6.8. , cum in ipsis verbis legis reperimus aliquid, per quod probemus aliud legumlatorem voluisse, ut in hac controversia: nocte cum ferro deprehensus fuerit, adligetur. anulo ferreo inuentum magistratus adligavit. quia est verbum in lege deprehensus, satis etiam significatum videtur, non contineri lege nisi noxium ferrum.
6.9. 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.
6.9. ut qui voluntate nitetur scriptum, quotiens poterit, infirmare debebit, ita, qui scriptum tuebitur, adiuvare se etiam voluntate temptabit. testamentis et illa accidunt, ut voluntas manifesta sit, scriptum nihil sit: ut in iudicio Curiano, in quo nota L. Crassi et Scaevolae fuit contentio.
6.10. 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.
6.10. heres erat, si postumus ante tutelae annos decessisset. est natus. bona sibi vindicabant. dubitaret, quin ea voluntas fuisset testantis, ut is non nato filio heres esset, qui mortuo? sed hoc non scripserat.
6.11. 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. 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.
6.11. quoque, quod huic contrarium est, accidit nuper, ut esset scriptum, quod appareret scriptorem noluisse. sestertium nummum quinque milia legaverat, cum emendaret testamentum, sublatis sestertiis nummis, argenti pondo posuit, quinque milia manserunt. tamen, quinque pondo dari voluisse, quia ille in argento legati modus et inauditus erat et incredibilis.
6.12. The same basis includes such general questions as to whether we should stand by the 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.
6.12. hoc statu generales sunt quaestiones, scripto an voluntate standum sit, quae fuerit scribentis voluntas; tractatus omnes qualitatis aut coniecturae, de quibus satis dictum arbitror.
7.1. The next subject which comes up for discussion is that of contrary laws. 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.
7.1. est de legibus contrariis dicere, quia inter omnes artium scriptores constitit, in antinomia duos esse scripti et voluntatis status; neque immerito; quia, cum lex legi obstat, et utrinque contra scriptum dicitur et quaestio est de voluntate; in utraque id ambigitur, an utique illa lege sit utendum.
7.2. 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, two tyrannicides or two ravished women, 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.
7.2. autem manifestum est nunquam esse legem legi contrariam iure ipso, quia, si diversum ius esset, alterum altero abrogaretur, sed eas casu collidi et eventu. autem aut pares inter se, ut si optio tyrannicidae et viri fortis comparentur, utrique data quod velit petendi potestate; hic meritorum, temporis, praemii collatio est; aut secum ipsae, ut duorum fortium, duorum tyrannicidarum, duarum raptarum, in quibus non potest esse alia quaestio, quam temporis, utra prior sit, aut qualitatis, utra iustior sit petitio.
7.4. Diverse laws are those against which arguments may be brought without reference to any contradictory law. The following theme will provide an example. “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.
7.4. quoque leges confligunt aut similes aut impares., quibus etiam citra adversam legem contradici possit, ut in hac controversia: ab arce ne discedat; vir fortis optet quod volet: impunitatem magistratus petit. vel alia nulla obstante quaeri potest, vir fortis an, quidquid optarit, accipere debeat. in legem magistratus multa dicentur, quibus scriptum expugnatur; si incendium in arce fuerit, si in hostes decurrendum.
7.5. 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.
7.5. , contra quas nihil opponi potest nisi lex altera: imago in gymnasio ponatur; contra, imago in gymnasio ne ponatur. tyrannum occidit. neque mulieris imago ullo alio casu poni potest nec tyrannicidae ullo alio casu summoveri.
7.6. 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 circumstances save the choice of rewards to which I have just referred.
7.6. sunt, cum alteri multa opponi possunt, alteri nihil nisi quod in lite est: ut cum vir fortis impunitatem desertoris petit. contra legem viri fortis, ut supra ostendi, multa dicuntur; adversus desertores scripta non potest nisi optione subverti.
7.7. 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?
7.7. aut confessum ex utraque parte ius est aut dubium. confessum est, haec fere quaeruntur, utra lex potentior; ad deos pertineat an ad homines, rem publicam an privatos, de honore an de poena, de magnis rebus an de parvis; permittat an vetet an imperet.
7.8. 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.
7.8. tractari et, utra sit antiquior, sed velut potentissimum, utra minus perdat; ut in desertore et viro forti, quod illo non occiso lex tota tollatur, occiso, sit reliqua viro forti alia optio. tamen est in hoc, utrum fieri sit melius atque aequius; de quo nihil praecipi nisi proposita materia potest.
7.9. If, on the other hand, the point of law is disputed, either one party or both in turn will argue the point. Take the following case as an example. “A father shall be empowered to arrest his son, and a patron to arrest his freedman. Freedmen shall be transferred to their patron's heir. A certain man appointed the son of a freedman as his heir. The son of the freedman and the freedman himself both claim the right to arrest the other.” Here the father claims his right over the son, while the son, in virtue of his new position as patron, denies that his father possessed the rights of a father, because he was in the power of his patron.
7.9. dubium, aut alteri aut invicem utrique de iure fit controversia, ut in re tali: in filium, patrono in libertum manus iniectio sit; liberti heredem sequantur. filium quidam fecit heredem: invicem petitur manus iniectio; et pater dicit sibi ius in filium esse, et patronus negat ius patris illi fuisse, quia ipse in manu patroni fuerit.
7.10. Laws containing two provisions may conflict with themselves in exactly the same way as two laws may conflict. The following will serve as an illustration. “The bastard born before a legitimate son shall rank as legitimate, the bastard born after the legitimate son shall only rank as a citizen.” All that I have said about laws will also apply to decrees of the senate. If decrees of the senate conflict with one another or with the laws, the basis will be the same as if laws only were concerned.
7.10. leges sicut duae colliduntur: ut ante legitimum natus, legitimus sit; post legitimum, tantum civis. de legibus, idem de senatus consultis dictum; quae si aut inter se pugnent aut obstent legibus, non tamen aliud sit eius status nomen.
8.1. The syllogistic basis has some resemblance to the basis concerned with the letter and intention of the law, since whenever it comes into play, one party rests his case on the letter: there is, however, this difference between the two bases, that in the latter we argue against the letter, in the present beyond the letter, while in the latter the party defending the letter aims at securing that in any case the letter may be carried into effect, whereas in the present his aim will be to prevent anything except the letter being carried into effect. The syllogism is sometimes employed in conjunction with definition: for often if the definition be weak it takes refuge in the syllogism. Assume a law to run as follows: “A woman who is a poisoner shall be liable to capital punishment. A wife gave her husband a love-potion to cure him of his habit of beating her. She also divorced him. On being asked by her relatives to return to him, she refused. The husband hung himself. The woman is accused of poisoning.” The strongest line for the accuser to take will be to assert that the love-potion was a poison. This involves definition. If it proves weak, we shall have recourse to the syllogism, to which we shall proceed after virtually dropping our previous argument, and which we shall employ to decide the question whether she does not deserve to be punished for administering the lovepotion no less than if she had caused her husband's death by poison.
8.1. habet aliquid simile scripto et voluntati, quia semper pars in eo altera scripto nititur, sed hoc interest, quod illic dicitur contra scriptum, hic supra scriptum; illic qui verba defendit, hoc agit ut fiat utique quod scriptum est; hic, ne aliud quam scriptum est. nonnulla etiam cum finitione coniunctio: nam saepe, si finitio infirma est, in syllogismum delabitur. enim lex: capite puniatur. se verberanti marito uxor amatorium dedit; eundem repudiavit; per propinquos rogata ut rediret non est reversa; suspendit se maritus. veneficii rea est. est actio dicentis amatorium venenum esse. erit finitio; quod si parum valebit, fiet syllogismus, ad quem, velut remissa priore contentione, veniemus, an proinde puniri debeat, ac si virum veneno necasset?
8.3. The syllogistic basis, then, deduces from the letter of the law that which is uncertain; and since this conclusion is arrived at by reason, the basis is called ratiocinative. It may be subdivided into the following species of question. If it is right to do a thing once, is it right to do it often? Example: “A priestess found guilty of unchastity is thrown from the Tarpeian rock and survives. It is demanded that she shall be thrown down again.” If the law grants a privilege with reference to one thing, does it grant it with reference to a number? Example: “A man kills two tyrants together and claims two rewards.”
8.3. hic status ducit ex eo quod scriptum est id quod incertum est; quod quoniam ratione colligitur, ratiocinativus dicitur. has autem fere species venit an, quod semel ius est, idem et saepius. damnata et praecipitata de saxo vixit; repetitur., quod in uno, et in pluribus. duos uno tempore tyrannos occidit, duo praemia petit. quod ante, et postea.
8.4. If a thing is legal before a certain occurrence, is it legal after it? Example: “The ravisher took refuge in flight. His victim married. The ravisher returned and the woman demands to be allowed her choice.” Is that which is lawful with regard to the whole, lawful with regard to a part? Example: “It is forbidden to accept a plough as security. He accepted a ploughshare.” Is that which is lawful with regard to a part, lawful with regard to the whole? Example: “It is forbidden to export wool from Tarentum: he exported sheep.”
8.4. profugit, rapta nupsit, reverso illo petit optionem., quod in toto, idem in parte. accipere pignori non licet, vomerem accepit., quod in parte, idem in toto. evehere Tarento non licet, oves evexit.
8.5. In all these cases the syllogism rests on the letter of the law as well: for the accuser urges that the provisions of the law are precise. He will say, “I demand that the priestess who has broken her vows be cast down: it is the law,” or “The ravished woman demands the exercise of the choice permitted her by law,” or “Wool grows on sheep,” and so on.
8.5. his syllogismus et scripto nititur; nam satis cautum esse dicit., ut praecipitetur incesta; lex est; et rapta optionem petit, et in ore lanae sunt, similiter alia. quia responderi potest, non est scriptum, ut bis praecipitetur damnata, ut quandoque rapta optet, ut tyrannicida duo praemia accipiat, nihil de vomere cautum, nihil de ovibus: ex eo, quod manifestum est, colligitur quod dubium est.
8.6. But to this we may reply, “The law does not prescribe that the condemned woman should be thrown down twice, that the ravished woman should exercise her choice under all circumstances, that the tyrannicide should receive two rewards, while it makes no mention of ploughshares or of sheep.” Thus we infer what is doubtful from what is certain. It is a more difficult task to deduce from the letter of the law that which is not actually prescribed by the letter, and to argue because that is the case, so also is this. Take the following problems. “The man who kills his father shall be sewn up in a sack. He killed his mother,” or “It is illegal to drag a man from his own house into the court. He dragged him from his tent.”
8.6. pugnae est ex scripto ducere quod scriptum non est; an, quia hoc, et hoc. patrem occiderit, culleo insuatur: matrem occidit. domo in ius educere ne liceat: ex tabernaculo eduxit. hoc genere haec quaeruntur, an, quotiens propria lex non est, simili sit utendum, an id de quo agitur ei de quo scriptum est simile sit.
8.7. Under this heading come questions such as the following: if there is not a special law applicable to the case, ought we to have recourse to an analogous law? is the point in question similar to what is contained in the letter of the law? Now it should be noted that what is similar may be greater, equal or less. In the first ease we enquire whether the provisions of the law are sufficient, or, if they are insufficient, whether we should have recourse to this other law. In both cases it is a question of the intention of the legislator. But the most effective form of treatment in such cases will be to appeal to equity.
8.7. autem et maius est et par et minus. illo priore, an satis lege cautum sit, an, etsi parum cautum est, et hoc sit utendum. utroque de voluntate legumlatoris. de aequo tractatus potentissimi.
9.1. I turn to tile discussion of ambiguity, which will be found to have countless species: indeed, in the opinion of certain philosophers, there is not a single word which has not a diversity of meanings. There are, however, very few genera, since ambiguity must occur either in a single word or in a group of words.
9.1. species sunt innumerabiles, adeo ut philosophorum quibusdam nullum videatur esse verbum quod non plura significet; genera admodum pauca; aut enim vocibus accidit singulis aut coniunctis.
9.2. Single words give rise to error, when the same noun applies to a number of things or persons (the Greeks call this homonymy): for example, it is uncertain with regard to the word gallus whether it means a cock or a Gaul or a proper name or an emasculated priest of tybele; while Ajax may refer either to the son of Telamon or the son of Oileus. Again, verbs likewise may have different meanings, as, for example, cerno.
9.2. adferunt errorem, cum pluribus rebus aut hominibus eadem appellatio est ( ὁμωνυμία dicitur), ut gallus, avem an gentem an nomen an fortunam corporis significet, incertum est; et Aiax, Telamonius an Oilei filius. quoque quaedam diversos intellectus habent, ut cerno.
9.3. This ambiguity crops up in many ways, and gives rise to disputes, mole especially in connexion with wills, when two men of the same name claim their freedom or, it may be, an inheritance, or again, when the enquiry turns on the precise nature of the bequest.
9.3. ambiguitas plurimis modis accidit. fere lites, praecipue ex testamentis, cum de libertate aut etiam de hereditate contendunt ii quibus idem nomen est, aut quid sit legatum quaeritur.
9.4. There is another form of ambiguity where a word has one meaning when entire and another when divided, as, for example, ingenua, armameniam or Corvinum. The disputes arising from such ambiguities are no more than childish quibbles, but nevertheless the Greeks are in the habit of making them the subject for controversial themes, as, for example, in the notorious case of the αὐλητρίς, when the question is whether it is a hall which has fallen down three times ( αὔλη τρίς ) or a flute-player who fell down that is to be sold.
9.4. est, in quo alia integro verbo significatio est, alia diviso, ut ingenua et armamentum et Corvinum, ineptae sane cavillationis, ex qua tamen Graeci controversias ducunt: inde enim αὐλητρίς illa vulgata, cum quaeritur, utrum aula, quae ter ceciderit, an tibicina, si ceciderit, debeat publicari.
9.5. A third form of ambiguity is caused by the use of compound words; for example, if a man orders his body to be buried in a cultivated spot, and should direct, as is often done, a considerable space of land surrounding his tomb to be taken from the land left to his heirs with a view to preserving his ashes from outrage, an occasion for dispute may be afforded by the question whether the words mean “in a cultivated place” ( in culto loco ) or “in an uncultivated place” ( inculto loco ).
9.5. est ex compositis, ut si quis corpus suum in culto loco poni iubeat, circaque monumentum multum agri ab heredibus in tutelam cinerum, ut solent, leget, sit litis occasio cultum locum dixerit an incultum.
9.6. Thus arises the Greek theme about Leon and Pantaleon, who go to law because the handwriting of a will makes it uncertain whether the testator has left all his property to Leon or his property to Pantaleon. Groups of words give rise to more serious ambiguity. Such ambiguity may arise from doubt as to a case, as in the following passage: —I say that you, O prince of Aeacus' line,Rome can o'erthrow.Or it may arise from the arrangement of the words, which makes it doubtful what the exact reference of some word or words may be, more especially when there is a word in the middle of the sentence which may be referred either to what precedes or what follows, as in the line of Virgil which describes Troilus aslora tenens tamen,where it may be disputed whether the poet means that he is still holding the reins, or that, although he holds the reins, he is still dragged along.
9.6. apud Graecos contendunt Λέων et Πανταλέων, cum scriptura dubia est, bona omnia Λέοντι an bona Πανταλέοντι relicta sint. coniunctis plus ambiguitatis est. autem per casus, utte, Aeacida, Romanos sincere posse. Per collocationem, ubi dubium est, quid quo referri oporteat, ac frequentissime, cum quidem medium est, cum utrinque possit trahi, ut de Troilo Vergilius, tenens tamen., utrum teneat tamen lora an, quamvis teneat, tamen trahatur, quaeri potest. controversia illa, quidam iussit poni statuam auream hastam tenentem., statua hastam tenens aurea esse debeat an hasta esse aurea in statua alterius materiae?
9.8. The controversial theme, “A certain man in his will ordered his heirs to erect statuam auream hastam tenentem,' ” turns on a similar ambiguity; for it raises the question whether it is the statue holding the spear which is to be of gold, or whether the spear should be of gold and the statue of some other material. The same result is even more frequently produced by a mistaken inflexion of the voice, as in the line:quinquaginta uhi erant centum inde occidit Achilles.
9.8. per flexum idem magis: ubi erant centum inde occidit Achilles., utri duorum antecedentium sermo subiunctus sit, in dubio est: unde et controversia, meus uxori meae dare damnas esto argenti quod elegerit pondo centum.
9.9. It is also often doubtful to which of two antecedents a phrase is to be referred. Hence we get such controversial themes as, “My heir shall be bound to give my wife a hundred pounds of silver according to choice,” where it is left uncertain which of the two is to make the choice. But in these examples of ambiguity, the first may be remedied by a change of case, the second by separating 1 the words or altering their position, the third by some addition.
9.9. eligat, quaeritur. id, quod ex his primum est, mutatione casuum, sequens divisione verborum aut translatione emendatur, tertium adiectione.
9.10. Ambiguity resulting from the use of two accusatives may be removed by the substitution of the ablative: for example, Lachetem audivi percussisse Demeam (I heard that Demea struck Laches, or that L. struck D.) may be rendered clear by writing a Lachete percussum Demeam (that D. was struck by L.). There is, however, a natural ambiguity in the ablative case itself, as I pointed out in the first book. For example, caelo decurrit aperto leaves it doubtful whether the poet means he hastened down “through the open sky,” or “when the sky was opened for him to pass.”
9.10. geminatione facta amphibolia solvitur ablativo, ut illud, Lachetem audivi percussisse Demean. fiat a Lachete percussum Demean. ablativo ipsi, ut in primo diximus, inest naturalis amphibolia. decurrit aperto: utrum per apertum caelum, an cum apertum esset.
9.11. Words may be separated by a breathing space or pause. We may, for instance, say statuam, and then, after a slight pause, add auream hastam, or the pause may come between statuam auream and haslam. The addition referred to above would take the form quod elegerit ipse, where ipse will show that the reference to the heir, or quod elegerit ipsa, making the reference to the wife. In cases where ambiguity is caused by the addition of a word, the difficulty may be eliminated by the removal of a word, as in the sentence nos flentes illos deprehendimus.
9.11. respiratione et mora constat: statuam, deinde auream hastam; vel statuam auream, deinde hastam. talis est, argentum, quod elegerit ipse, ut heres intelligatur, vel ipsa, ut uxor. facta amphibolia, qualis sit, Nos flentes illos deprehendimus, detractione solvetur.
9.12. Where it is doubtful to what a word or phrase refers, and the word or phrase itself is ambiguous, we shall have to alter several words, as, for example, in the sentence, “My heir shall be bound to give him all his own property,” where “his own” is ambiguous. Cicero commits the same fault when he says of Gaius Fannius, “He following the instructions of his father-in-law, for whom, because he had not been elected to the college of augurs, he had no great affection, especially as he had given Quintus Scaevola, the younger of his sons-in-law, the preference over himself..” For over himself may refer either to his father-in-law or to Fannius.
9.12. verbis emendandum, ubi est id, quod quo referatur dubium est, et ipsum est ambiguum. meus dare illi damnas esto omnia sua. quod genus incidit Cicero loquens de C. Fannio; soceri instituto, quem, quia cooptatus in augurum collegium non erat, non admodum diligebat, praesertim cum ille Q. Scaevolam sibi minorem natu generum praetulisset. sibi et ad socerum referri et ad Fannium potest.
9.13. Again, another source of ambiguity arises from leaving it doubtful in a written document whether a syllable is long or short. Cato, for example, means one thing in the nominative when its second syllable is short, and another in the dative or ablative when the same syllable is long. There are also a number of other forms of ambiguity which it is unnecessary for me to describe at length.
9.13. quoque in scripto et correptio in dubio relicta causa est ambiguitatis, ut in hoc, Cato. enim ostendit brevis secunda syllaba casu nominativo, aliud eadem syllaba producta casu dativo aut ablativo. Plurimae praeterea sunt aliae species, quas persequi nihil necesse est.
9.14. Further, it is quite unimportant how ambiguity arises or how it is remedied. For it is clear in all cases that two interpretations are possible, and as far as the written or spoken word is concerned, it is equally important for both parties. It is therefore a perfectly futile rule which directs us to endeavour, in connexion with this basis, to turn the word in question to suit our own purpose, since, if this is feasible, there is no ambiguity.
9.14. refert, quo modo sit facta amphibolia aut quo resolvatur. enim res significari manifestum est et, quod ad scriptum vocemve pertinet, in utramque partem par est. frustra praecipitur, ut in hoc statu vocem ipsam ad nostram partem conemur vertere., si id fieri potest, amphibolia non est. autem omnis erit in his quaestio;
9.15. In cases of ambiguity the only questions which confront us will be, sometimes which of the two interpretations is most natural, and always which interpretation is most equitable, and what was the intention of the person who wrote or uttered the words. I have, however, given sufficient instructions in the course of my remarks on conjecture and quality, as to the method of treating such questions, whether by the prosecution or the defence.
9.15. aliquando, uter sit secundum naturam magis sermo, semper, utrum sit aequius, utrum is, qui scripsit ac dixit, voluerit. in utramque partem satis ex his, quae de coniectura et qualitate diximus, praeceptum est.
10.1. There is, however, a certain affinity between all these bases. For in definition we enquire into the meaning of a term, and in the syllogism, which is closely connected with definition, we consider what was the meaning of the writer, while it is obvious that in the case of contrary laws there are two bases, one concerned with the letter, and the other with the intention. Again, definition is in itself a kind of ambiguity, since it brings out two meanings in the same term.
10.1. autem quaedam inter hos status cognatio. et in finitione, quae sit voluntas nominis, quaeritur, et in syllogismo, qui secundus a finitione status est, spectatur quid voluerit scriptor; et contrarias leges duos esse scripti et voluntatis status apparet. et finitio quodammodo est amphibolia, cum in duas partes diducatur intellectus nominis.
10.2. The basis concerned with the letter and the intention of the law involves a legal question as regards the interpretation of the words, which is identical with the question arising out of contrary laws. Consequently some writers have asserted that all these bases may be resolved into those concerned with the letter and intention, while others hold that in all cases where the letter and the intention of a document have to be considered, it is ambiguity that gives rise to the question at issue. But all these bases are really distinct, for an obscure point of law is not the same as an ambiguous point of law. Definition, then, involves a general question as to the actual nature of a term, a question which may conceivably have no connexion whatsoever with the content of the case in point.
10.2. et voluntas habet in verbis iuris quaestionem, quod idem antinomia petitur. omnia haec quidam scriptum et voluntatem esse dixerunt, alii in scripto et voluntate amphiboliam esse, quae facit quaestionem. distincta sunt; aliud est enim obscurum ius, aliud ambiguum.
10.3. In investigations as to the letter and the intention, the dispute turns on the provisions contained in the law, whereas the syllogism deals with that which is not contained in the law. In disputes arising out of ambiguity we are led from the ambiguous phrase to its conflicting meanings, whereas in the case of contrary laws the fight starts from the conflict of their provisions.
10.3. finitio in natura ipsa nominis quaestionem habet generalem, et quae esse etiam citra complexum causae possit; scriptum et voluntas de eo disputat iure quod est in lege, syllogismus de eo quod non est. lis in diversum trahit, legum contrariarum ex diverso pugna est.
10.4. The distinction between these bases has therefore been rightly accepted by the most learned of rhetoricians, and is still adopted by the majority and the wisest of the teachers of to-day. It has not been possible in this connexion to give instructions which will cover the arrangement to be adopted in every case, though I have been able to give some.
10.4. immerito et recepta est a doctissimis haec differentia et apud plurimos ac prudentissimos durat. de hoc quidem genere dispositionis, etiamsi non omnia, tradi tamen aliqua potuerunt.
10.5. There are other details concerning which I can give no instructions without a statement of the particular case on which the orator has to speak. For not only must the whole case be analysed into its component topics and questions, but these subdivisions themselves require to be arranged in the order which is appropriate to them. For example, in the exordium each part has its own special place, first, second and third, etc., while each question and topic requires to be suitably arranged, and the same is true even of isolated general questions.
10.5. alia quae, nisi proposita de qua dicendum est materia, viam docendi non praebeant. enim causa tantum universa in quaestiones ac locos diducenda est, sed hae ipsae partes habent rursus ordinem suum. et in prooemio primum est aliquid et secundum ac deinceps, et quaestio omnis ac locus habet suam dispositionem ut theses etiam simplices. forte satis erit dividendi peritus, qui controversiam in haec diduxerit, an omne praemium viro forti dandum sit, an ex privato, an nuptiae, an eius quae nupta sit, an hae;
10.6. For it will not, I imagine, be represented that sufficient skill in division is possessed by the man who, after resolving a controversial theme into questions such as the following, whether a hero is to be granted any reward that he may claim, whether he is allowed to claim private property, whether he may demand any woman in marriage, whether he may claim to marry a woman who already possesses a husband, or this particular woman, then, although it is his duty to deal with the first question first, proceeds to deal with them indiscriminately as each may happen to occur to him, and ignores the fact that the first point which should be discussed is whether we should stand by the letter or the intention of the law, and fails to follow the natural order, which demands that after beginning with this question he should then proceed to introduce the subsidiary questions, thereby making the structure of his speech as regular as that of the human body, of which, for example, the hand is a part, while the fingers are parts of the hand, and the joints of the fingers.
10.6. deinde, cum fuerit de prima quaestione dicendum, passim et ut quidque in mentem veniet miscuerit, non primum in ea scierit esse tractandum, verbis legis standum sit an voluntate, huius ipsius particulae aliquod initium fecerit, deinde proxima subnectens struxerit orationem, ut pars hominis est manus, eius digiti, illorum quoque articuli.
10.7. It is precisely this method of arrangement which it is impossible to demonstrate except with reference to some definite and specific case.
10.7. est quod scriptor demonstrare non possit, nisi certa definitaque materia.
10.8. But it is clearly useless to take one or two cases, or even a hundred or a thousand, since their number is infinite. It is the duty of the teacher to demonstrate daily in one kind of case after another what is the natural order and connexion of the parts, so that little by little his pupils may gain the experience which will enable them to deal with other cases of the same character. For it is quite impossible to teach everything that can be accomplished by art.
10.8. quid una faciet aut altera, quin immo centum ac mille in re infinita? Praeceptoris est, in alio atque alio genere cotidie ostendere, quis ordo sit rerum et quae copulatio, ut paulatim fiat usus et ad similia transitus. enim omnia, quae ars efficit, non possunt. quis pictor omnia, quae in rerum natura sunt, adumbrare didicit?
10.9. For example, what painter has ever been taught to reproduce everything in nature? But once he has acquired the general principles of imitation, he will be able to copy whatever is given him. What vase-maker is there who has not succeeded in producing a vase of a type which he had never previously seen?
10.9. sed percepta semel imitandi ratione adsimulabit quidquid acceperit. non faber vasculum aliquod, quale nunquam viderat, fecit?
10.10. There are, however, some things which depend not on the teacher, but on the learner. For example, a physician will teach what treatment should be adopted for different diseases, what the dangers are against which he must be on his guard, and what the symptoms by which they may be recognised. But he will not be able to communicate to his pupil the gift of feeling the pulse, or appreciating the variations of colour, breathing and temperature: this will depend on the talent of the individual. Therefore, in most instances, we must rely on ourselves, and must study cases with the utmost care, never forgetting that men discovered our art before ever they proceeded to teach it. For the most effective, and what is justly styled most economical arrangement of a case as a whole, is that which cannot be determined except when we have the specific facts before us. It consists in the power to determine when the exordium is necessary and when it should be omitted; when we should make our statement of facts continuous, and when we should subdivide it; when we should begin at the very beginning, when, like Homer, start at the middle or the end;
10.10. vero non docentium sunt, sed discentium. medicus, quid in quoque valetudinis genere faciendum sit, quid quibusque signis providendum, docebit; vim sentiendi pulsus venarum, coloris modos, spiritus meatum, caloris distantiam, quae sui cuiusque sunt ingenii, non dabit. plurima petamus a nobis et cum causis deliberemus cogite musque homines ante invenisse artem quam docuisse. enim potentissima est, quaeque vere dicitur oeconomica totius causae dispositio, quae nullo modo constitui nisi velut in re praesente potest: ubi adsumendum prooemium, ubi omittendum, ubi utendum expositione continua, ubi partita, ubi ab initiis incipiendum, ubi more Homerico e mediis vel ultimis, ubi omnino non exponendum,
10.12. when we should omit the statement of facts altogether; when we should begin by dealing with the arguments advanced by our opponents, and when with our own; when we should place the strongest proofs first and when the weakest; in what cases we should prefix questions to the exordium, and what preparation is necessary to pave the way for these questions; what arguments the judge will accept at once, and to what he requires to be led by degrees; whether we should refute our opponent's arguments as a whole or in detail; whether we should reserve emotional appeals for the peroration or distribute them throughout the whole speech; whether we should speak first of law or of equity; whether we should first advance (or refute) charges as to past offences or the charges connected with the actual trial;
10.12. quando a nostris, quando ab adversariorum propositionibus incipiamus, quando a firmissimis probationibus, quando a levioribus; qua in causa praeponendae prooemiis quaestiones, qua praeparatione praemuniendae, quid iudicis animus accipere possit statim dictum, quo paulatim deducendus, singulis an universis opponenda refutatio, reservandi perorationi an per totam actionem diffundendi adfectus, de iure prius an de aequitate dicendum; anteacta crimina an de quibus iudicium est prius obiicere vel diluere conveniat;
10.13. or, again, if the case is complicated, what order we should adopt, what evidence or documents of any kind should be read out in the course of our speech, and what reserved for a later stage. This gift of arrangement is to oratory what generalship is to war. The skilled commander will know how to distribute his forces for battle, what troops he should keep back to garrison forts or guard cities, to secure supplies, or guard communications, and what dispositions to make by land and by sea.
10.13. si multiplices causae erunt, quis ordo faciendus, quae testimonia tabulaeve cuiusque generis in actione recitandae, quae reservandae. est velut imperatoria virtus copias suas partientis ad casus proeliorum, retinentis partes per castella tuenda custodiendasve urbes, petendos commeatus, obsidenda itinera, mari denique ac terra dividentis. haec in oratione praestabit, cui omnia adfuerint, natura, doctrina, studium.
10.14. But to possess this gift, our orator will require all the resources of nature, learning and industrious study. Therefore let no man hope that he can acquire eloquence merely by the labour of others. He must burn the midnight oil, persevere to the end and grow pale with study: he must form his own powers, his own experience, his own methods: he must not require to hunt for his weapons, but must have them ready for immediate use, as though they were born with him and not derived from the instruction of others.
10.14. nemo exspectet, ut alieno tantum labore sit disertus., durandum, enitendum, pallendum est, facienda sua cuique vis, suus usus, sua ratio, non respiciendum ad haec, sed in promptu habenda, nec tanquam tradita sed tanquam innata.
10.15. The road may be pointed out, but our speed must be our own. Art has done enough in publishing the resources of eloquence, it is for us to know how to use them.
10.15. via demonstrari potest, velocitas sua cuique est; verum ars satis praestat, si copias eloquentiae ponit in medio; nostrum est uti eis scire.
10.16. And it is not enough merely to arrange the various parts: each several part has its own internal economy, according to which one thought will come first, another second, another third, while we must struggle not merely to place these thoughts in their proper order, but to link them together and give them such cohesion that there will be no trace of any suture: they must form a body, not a congeries of limbs.
10.16. enim partium est demum dispositio, sed in his ipsis primus aliquis sensus et secundus et tertius; qui non modo ut sint ordine collocati, laborandum est, sed ut inter se vincti atque ita cohaerentes, ne commissura perluceat; corpus sit, non membra.
10.17. This end will be attained if we note what best suits each position, and take care that the words which we place together are such as will not clash, but will mutually harmonise. Thus different facts will not seem like perfect strangers thrust into uncongenial company from distant places, but will be united with what precedes and follows by an intimate bond of union, with the result that our speech will give the impression not merely of having been put together, but of natural continuity. I fear, however, that I have been lured on from one thing to another and have advanced somewhat too far, since I find myself gliding from the subject of arrangement to the discussion of the general rules of style, which will form the opening theme of the next book.
10.17. ita continget, si et quid cuique conveniat viderimus et verba verbis applicarimus non pugnantia, sed quae invicem complectantur. res non diversae distantibus ex locis quasi invicem ignotae collidentur, sed aliqua societate cum prioribus ac sequentibus copulatae tenebuntur, ac videbitur non solum composita oratio, sed etiam continua. longius fortasse progredior fallente transitu et a dispositione ad elocutionis praecepta labor, quae proximus liber inchoabit.