Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
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.
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.
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