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he please. Here it may be questioned whether the word he refers to the heir, or to Titius; and consequently, whether the heir be allowed to give Titius which horse he please,
or Titius may choose which he likes best. Now , as to controversies of this kind, in the first case above mentioned, the party who claims the chattels may plead, that all moveable goods come under that name, and therefore that he has a right to the money. This he will endeavour to prove from some instances where the word has been so used. The business of the opposite party is to refute this, by showing that money is not there included. And if either side produce precedents in his favour, the other may endeavour to show the cases are not parallel, As to the second case, arising from an ambiguity in the name, if any other words or expressions in the will seem to countenance either of -the claimants, he will not fail to interpret them to his advantage. So likewise if any thing said by the testator, in his life-time, or any reward shown to either of these nephews more than the other, may help to determine which of them was intended, a proper use may be made of it. And the same may be said with regard to the third case. In which the legatee may reason likewise from the common use of language, and show, that in such expressions it is unusual to make the reference to the last or next antecedent; and from thence plead, that it was the design of the testator to give him the option. But in answer to this it may be said, that allowing it to be very often so, yet in this instance it seems more easy and natural to repeat the verb give after please, and so to supply the sentence, which he please to give him, referring it to the heir; than to bring in the verb choose, which was not in the sentence before, and so by supplying the sense, which he please to choose, to give the option to Titius. But where controversies of this kind arise from a law, recourse may be had to other laws, where the same thing has been expressed with greater clearness, which may help to determine the sense of the passage in dispute.
A second controversy from Writings is, when one party adheres to the words, and the other to what he asserts was the writer's intention. Now he who opposes the literal sense, either contends, that what he himself offers is the simple and plain meaning of the writing, or that it must be so understood in the particular case in debate. An instance of the former is this, as we find it in Cicero. A person who died without children, but left a widow, had made this provision in his will: If I have a son born to me, he shall be my heir. And a little after: If my son die, before he comes of age, let Curius be my heir. There is no son born, Curius therefore sues for the estate, and pleads the intention of the testa. tor, who designed him for his heir if he should have no son who arrived at age; and says, there can be no reason to suppose he did not intend the same person for his heir if he had no son, as if he should have one who afterwards died in his minority.' But the heir at law insists upon the words of the will, which, as he says, require that first a son should be born, and afterwards die under age, before Curius can succeed to the inheritance. 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 rhetoricians 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 comparing 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; from 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 arguments are designed to prévail 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 in, duce him to it, from the weakness of the des fence 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 ?i-.
rights and shine legislace
intentions syllables of th regard be had
gorously interpreted, nor the words of it strained; but the true intention and design of each part of it duly considered. As also, that saying of Cicero: What laro 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 coun. tenance his case, since this will take off the main force of the charge.
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 following instance. One law enjoins: He, who continues alone in a ship during a tempest, shall have the property of the ship. Another law says: A disinherited son shall ena joy 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