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19. [54]

The law commands the property in land to be determined by two years' possession. But we adopt the same principle also in the case of houses, which are not mentioned at all in the law. If a road is not properly made, the law allows a man to drive a beast of burden wherever he likes. Can it be understood from this, that if a road in the Bruttii be out of repair, a man may, if he pleases, drive his beast through the Tusculan farm of Marcus Scaurus? There is a right of action against a vendor who is present, according to this formula, “Since I behold you before the court.” . . . Now the blind Appius could never have availed himself of this form of action, if men adhered to words with such strictness as not to consider the matter for the sake of which the words are used. If a person's heir had been stated in his will to be the minor Cornelius, and if Cornelius were twenty years old, according to your interpretation he would lose his inheritance. [55] Many such cases occur to me at present, and still more to you, I am quite sure. But not to dwell on too many such points, and not to wander too far from where we set out, let us consider this very interdict which is now before the court; for by that very document you will understand, that if we determine that the law depends on its precise words, we shall lose all the advantage of this interdict, while we wish to be very acute and clever. “Whence you, or your household, or your agent . . . ” Suppose your steward by himself had driven me away, your household would not, as I suppose, have driven me away, but only a member of your household. Would you then have a right to say that you had made the necessary restitution? No doubt; for what can be more easy than to prove to all those who understood the Latin language, that the name of a household does not apply to one single slave? But suppose you have not even one slave besides the one who drove me away; then you would cry out, “If I have a household, I will admit that you were driven away by my household.” Nor is there any doubt, that, if we are influenced in our decisions by the mere letter of the law, and not by the facts, we must understand a household to consist of many slaves, and we must admit that one slave is not a household. [56] The expression certainly does not only require this, but even compels it. But let all consideration of law, and the effect of the interdict, and the intention of the praetor, and the wisdom and authority of prudent men, reject this defence and treat it as worthless.


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