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itance. And there being no son, a substituted heir, as Curius was, can have no claim where the first heir does not exist, from whom he derives his pretension, and was to succeed by the appointment of the will. Of the latter case rhetoritians give this example: It was forbidden by a law to open the city gates in the night. A certain person, notwithstanding, in time of war did open them in the night, and let in some auxiliary troops to prevent their being cut off by the enemy who was posted near the town. Afterwards, when the war was over, this person is arraigned, and tried for his life on the account of this action. Now in such a case the prosecutor founds his charge upon the express words of the law; and pleads that no sufficient reason can be assigned for going contrary to the letter of it, which would be to make a new law, and not to execute one already made. The defendant on the other hand alleges, that the fact he is charged with cannot however come within the intention of the law; since he either could not, or ought not to have complied with the letter of it in that particular case, which must therefore necessarily be supposed to have been excepted in the design of that law, when it was made. But to this the prosecutor may reply; that all such exceptions, as are intended by any law, are usually expressed in it and instances may be brought of particular exceptions expressed in some laws; and if there be any such exception in the law under debate, it should especially be mentioned. He may further add, that to admit of exceptions not expressed in the law itself, is to enervate the force of all laws by explaining them away, and in effect to render them useless. And this he may further corroborate by com
paring the law under debate with others, and considering its nature and importance, and how far the public interest of the state is concerned in the due and regular execution of it; whence he may infer, that should exceptions be admitted in other laws of less consequence, yet, however, they ought not in this. Lastly, he may consider the reason alleged by the defendant, on which he founds his plea, and show there was not that necessity of violating the law in the present case as is pretended. And this is often the more requisite because the party who disputes against the words of the law always endeavours to support his allegations from the equity of the case. If, therefore, this plea can be enervated, the main support of the defendant's cause is removed. For as the former ar guments are designed to prevail with the judge to determine the matter on this side the question from the nature of the case,-so the intention of this argument is to induce him to it, from the weakness of the defence made by the opposite party. But the defendant will on the contrary use such arguments as may best demonstrate the equity of his cause, and endeavour to vindicate the fact from his good design and intention in doing it. He will say, that the laws have allotted punishments for the commission of such facts as are evil in themselves, or prejudicial to others; neither of which can be charged upon the action for which he is accused that no law can be rightly executed, if more regard be had to the words and syllables of the writing, than to the intention of the legislator. To which purpose he may allege that direction of the law itself, which says: The law ought not to be too rigorously interpreted, nor the words of it strained; but the
true intention and design of each part of it duly consid ered. As also, that saying of Cicero: What law may not be weakened and destroyed, if we bend the sense to the words, and do not regard the design and view of the legislator? Hence he may take occasion to complain of the hardship of such a procedure, that no difference should be made between an audacious and wilful crime and an honest or necessary action, which might happen to disagree with the letter of the law, though not with the intent of it. And as it was observed before to be of considerable service to the accuser, if he could remove the defendant's plea of equity,-so it will be of equal advantage to the defendant, if he can fix upon any words in the law which may in the least seem to countenance his case, since this will take off the main force of the charge.
ing instance. alone in a ship
The third controversy of this kind is, when two writings happen to clash with each other, or at least seem to do so. Of this Hermogenes gives the followOne law enjoins: He, who continues during a tempest, shall have the property of the ship. Another law says: A disinherited son shall enjoy no part of his father's estate. Now a son who had been disinherited by his father, happens to be in his father's ship in a tempest, and continues there alone, when every one else had deserted it. He claims the ship by the former of these laws, and his brother tries his right with him by the latter. In such cases therefore it may first be considered, whether the two laws can be reconciled. And if that cannot be done, then which of them appears more equitable. Also whether one be positive, and the other negative; because prohibitions are a sort of excep
tions to positive injunctions. Or if one be a general law, and the other more particular, and come nearer to the matter in question. Likewise which was last made since former laws are often abrogated, either wholly or in part, by subsequent laws; or at least were designed to be so. Lastly, it may be observed, whether one of the laws be not plain and express, and the other more dubious, or has any ambiguity in it. All or any of which things that party will not omit to improve for his advantage, whose interest is concerned in it.
The fourth controversy is Reasoning: as when something not expressly provided for by a law is inferred by similitude, or parity of reason, from what is contained in it. Quintilian mentions this instance of it: There was a law made at Tarentum to prohibit the exportation of wool, but a certain person exports sheep. In this case the prosecutor may first compare the thing, which occasions the charge, with the words of the law, and show their agreement, and how unnecessary it was that particular thing should have been expressly mentioned in the law, since it is plainly contained in it, or at least an evident consequence from it. He may then plead that many things of a like nature are omitted in other laws for the same reason: and, lastly, he may urge the reasonableness and equity of the procedure. The defendant on the other hand will endeavour to show the deficiency of the reasoning and the difference between the two cases. He will insist upon the plain and express words of the law, and set forth the ill tendency of such inferences, and conclusions drawn from similitudes and comparisons; since there is scare any thing but in some respect may bear a resemblance to another.
The last controversy under this head is Interpretation, in which the dispute turns upon the true meaning and explication of the law, in reference to that particular case. We have the following instance of this in the pandects; A man who had two sons, both under age, substitutes Titius as heir to him who should die last, provided both of them died in their minority. They both perish together at sea, before they came to age. Here arises a doubt, whether the substitution can take place, or the inheritance devolves to the heir at law. The latter pleads, that as neither of them can be said to have died last, the substitution cannot take place, which was suspended upon the condition, that one died after the other. But to this it may be said, it was the intention of the testator that if both died in their nonage, Titius should succeed to the inheritance; and therefore it makes no difference whether they died together, or one after the other; and so the law determines it.
The second head of external arguments are WitnessThese may either give their evidence, when absent, in writing subscribed with their name; or present, by word of mouth. And what both of them testify, may either be from hearsay, or, what they saw themselves, and were present at the time it was done. As the weight of the evidence may be thought greater or less on each of these accounts, either party will make such use of it as he finds to his advantage. The characters of the witnesses are also to be considered; and if any thing be found in their lives or behaviour that is justly exceptionable to invalidate their evidence, it ought not to be omitted. And how they are affected to the contending parties, or either of them,