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Book 7 - Chapter 5
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Questions as to legality of proceedings, § 1-4. As to particular points of law, 5, 6.
1. AN accused person who can neither deny that he has committed an act, nor prove that the act which he has committed is of a nature different from that which is attributed to it, nor justify the act, must necessarily take his stand on some point of law that is in his favor; whence generally arises a question about the legality of the process against him, a question which does not, as some have thought, always present itself in the same manner. 2. For it sometimes precedes the trial, as in the case of the nice examinations of the praetor, when there is a doubt about the right of a person to be an accuser, and sometimes it occurs in the progress of the trial itself. The nature of such a question is twofold, as it is either intention or prescription that gives rise to it. There were some who made a state of prescription, as if prescription were not concerned in all questions in which other laws are concerned. 3. When a cause depends on prescription, it is not necessary that there should be any inquiry about the fact itself. A son, who has been disinherited by his father, raises the question of prescription against him, as being infamous; and the dispute is then merely on the point whether the father has the right to disinherit. As often as we can, however, we must take care that the judge may conceive a favourable opinion of the main question, for he will thus be more inclined to listen to our arguments on the point of law; as in cases respecting sponsions, which arise from interdicts of the praetor, though the question may not be about right to possession, but merely about possession itself, yet it will be proper to show not only that we were in possession, but that that of which we were in possession was our own. 4. But the question occurs still more frequently with regard to intention. Let him who has saved his country by his valour choose whatever he pleases as a recompence. I deny that whatever he chooses ought to be given to him; I have no formal prescription; but I try to set the intention of the lawgiver in the manner of prescription, against the written letter. In either case the state is the same.
5. Moreover every law either gives, or takes away, or punishes, or commands, or forbids, or permits. It gives rise to dispute either on its own account, or on account of another law; and to inquiries either with regard to its wording, or to its intention. As to its wording, it is either clear, obscure, or equivocal. 6. What I say of laws, I wish to be understood of wills, agreements, contracts, and every sort of written instruments; and even of verbal bargains. And as I have made four positions or questions on this head, I will touch upon each of them.
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