Book 7
6.6
The second arises in scholastic themes where no argument can be drawn from the particular law, but the question is concerned solely with the subject of the dispute. A foreigner who goes up on to the wall shall be liable to capital punishment. The enemy had scaled the wall and were driven back by a foreigner. His punishment is demanded.
6.7
In this case we shall not have two separate questions, namely, whether every foreigner who goes up on the wall is liable to the penalty, and whether this particular foreigner is liable, since no more forcible argument can be brought against the application of the letter of the law than the fact in dispute, but the only question to be raised will be whether a foreigner may not go on to the wall even for the purpose of saving the city. Therefore we shall rest our case on equity and the intention of the law. It is, however, sometimes possible to draw examples from other laws to show that we cannot always stand by the letter, as Cicero did in his defence of Caecina.
