Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter XVI: The Interpretation of Treaties
The external obligation of promisesWords where other conjectures are wanting to be taken in their popular meaningTerms of art to be interpreted according to the acceptation of the learned in each art, trade, and scienceConjectures requisite to explain ambiguous or seemingly contradictory termsInterpretation of treaties from the subject-matterFrom consequences, from circumstances and connectionConjectures taken from motivesThe more strict or more extensive interpretationTreaties favourable, odious, mixed or indifferentThe good faith of kings and nations in treaties of equal validity with lawRules of interpretation formed from the above named distinctionsWhether the word allies, in a treaty, is limited to those, who were such at the time of making it, or applies to all who are, or hereafter may become suchInterpretation of the prohibition of one partys making war without the consent or injunction of the otherOf the freedom granted to CarthageDistinction between personal and real treatiesA treaty made with a king continues even during his expulsion by an usurper, such a treaty extends not to an invaderWhat kind of promises ought to have the preferenceThe extent of obvious conjecturesThe performance of a commission by doing something equivalentInterpretation restricted more closely than the bare signification of the words impliesFrom an original defect of intentionFrom failure of the sole motiveFrom a defect in the subjectObservations on the last named conjecturesEmergencies repugnant to the original intention, by rendering it unlawful or burdensomeConjectures taken from a comparison of one part of the writings with anotherRules to be observedIn dubious cases, writings not absolutely requisite to the validity of a contractContracts of Sovereigns not to be interpreted by the Roman lawWhether the words of the person accepting or offering the engagement ought to be most regardedThis explained by a distinction.
I. IF we consider the promiser alone, he is naturally bound to fulfil his engagements. Good faith, observes Cicero, requires that a man should consider as well what he intends, as what he says. But as acts of the mind are not, of themselves visible, it is necessary to fix upon some determinate mark, to prevent men from breaking their engagements, by allowing them to affix their own interpretation to their words. It is a right, which natural reason dictates, that every one who receives a promise, should have power to compel the promiser to do what a fair interpretation of his words suggests. For otherwise it would be impossible for moral obligations to be brought to any certain conclusion. Perhaps it was in this senses that Isocrates, treating of agreements, in his prescription against Callimachus, maintains that the laws enacted on this subject are the common laws of all mankind, not only Greeks, but barbarians also. It is for this very reason, that specific forms have been assigned for treaties, which are to be drawn up in terms of unequivocal and certain meaning. The proper rule of interpretation is to gather the intention of the parties pledged, from the most probable signs. And these are of two kinds, namely, words and conjectures, which may be considered either separately, or together.
II. Where we have no other conjecture to guide us, words are not to be strictly taken in their original or grammatical sense, but in their common acceptation, for it is the arbitrary will of custom, which directs the laws and rules of speech.1 It was a foolish act of perfidy therefore in the Locrians, when they promised they would adhere to their engagements as long as they stood upon that soil, and bore those heads upon their shoulders, in order to evade their promise to cast away the mould, which they had previously put within their shoes, and the heads of garlick, which they had laid upon their shoulders. Acts of treachery like these, Cicero, in the third book of his Offices, has properly observed, instead of mitigating, tend to aggravate the guilt of perjury.
III. In terms of art which are above the comprehension of the general bulk of mankind, recourse, for explanation, must be had to those, who are most experienced in that art; thus from consulting legal writers, we may conceive the nature of particular crimes, or from the pages of the same authors, derive our nations of sovereign power.
It is a just remark of Ciceros, that the language of logic is not that of daily and familiar intercourse: the writers of the class have phrases peculiar to themselves: which indeed is the case with arts of every description. So in treaties, where military arrangements occurs, an army is defined to be a number of soldiers capable of OPENLY invading a foreign, or an enemys country. For historians everywhere make a distinction between the private incursions of robbers, and what is done by a lawful and regular army. What constitutes an army must be therefore judged of by the enemys force. Cicero defines an army to consist of six legions and auxiliaries. Polybius says, that a Roman army in general amounted to sixteen thousand Romans, and twenty thousand auxiliaries. But a military force might be composed of a less number of troops than this. In the same manner the number of ships sufficient for any purpose will amount to a fleet, and a place able to hold out against an enemy may be called a fort.
IV. It is necessary to make use of conjecture, where words or sentences admit of many meanings: A mode of expression when included in one word, is called by Logicians, a synonymous term, and, when extending to two or more words, a doubtful phrase. In the same manner it is necessary to have recourse to conjecture whenever a seeming contradiction occurs in the expressions of a treaty. For in that case we must try to discover such conjectures, as will reconcile, if possible, one part with another. For if there be an evident contradiction, the contracting parties by their latter determinations, must have intended to abrogate their former; as no one can design to make contradictory resolutions at the same time. Indeed all acts depending upon the human will, as in the case of laws and testaments, which depend upon the will of one party, and in contracts and treaties, which depend upon that of two or more, all these acts are liable to changes, with a subsequent change of will in the parties concerned. In all such cases any obscurity in the language obliges us to have recourse to conjectures, which are sometimes so obvious, as to point out a meaning directly contrary to that of the words in their usual acceptation. Now the principal sources of conjecture are to be found in the subject-matter, the consequences, and the circumstances and connection.
So the word donation is sometimes used to signify a transfer, according to the nature of the business. In the same manner too the word arms, which in general signifies military instruments, is sometimes applied to troops, and may be taken in either sense, according to the particular occasion. Every interpretation must be given according to the intention understood. Thus the promise of a free passage given upon the evacuation of a town, implies also that the troops shall pass without molestation. If a number of ships are to be given up, perfect and not mutilated ships are meant. And in all similar cases a similar judgment must be formed according to the natural tenor of the words.
VI. Another source of interpretation is derived from the consequences, especially where a clause taken in its literal meaning would lead to consequences foreign or even repugnant to the intention of a treaty. For in an ambiguous meaning such an acceptation must be taken as will avoid leading to an absurdity or contradiction. The cavil of Brasidas therefore is highly abominable, who, promising that he would evacuate the Boeotian territory, said he did not consider that as Boeotian territory, which he occupied with his army; as if the ancient bounds were not intended, but only what remained unconquered, an evasion, which entirely annulled the treaty.
VII. From the circumstances or context another source of interpretation is derived. No inconsiderable light may be thrown upon the meaning of an expression from the circumstance of its being used by the same person to express the same intentions on other similar occasions, and from its relation to what goes before, and what follows the place, where it stands. For in all doubtful cases, we have reason to suppose that the contracting parties mean to be consistent with their former opinions and intentions. Thus in Homer, in the agreement between Paris and Menelaus, that Helen should be given up to the conqueror, when compared with what follows, it is evident that by the conqueror is meant the combatant, who killed the other. This rule of interpretation, Plutarch illustrates by the conduct of judges, who passing by what is obscure rest their decisions upon clear and unambiguous points.
VIII. As to the motives, which are sometimes taken for a rule of interpretation, there may be other substantial ones, besides those immediately expressed, for the passing of a law or the making of a treaty. Yet the strongest conjecture is that which arises from certain proof that the will was actuated by some reason, operating as a sole and sufficient motive. For there are frequently MANY motives, and sometimes the will is influenced by its own choice independent of any other reason. In the same manner a grant made, in contemplation of a marriage, will be avoid, if the marriage never takes place.
IX. It is further to be observed that many words have a variety of acceptations, some more limited and others more extensive; which may be owing either to the application of a general name to a particular class of things, as in the words kindred and adoption; or to the use of masculines to express animals both of the male and female kind, where nouns of a common gender are wanting. In terms of art too, words are often taken in a metaphorical or extended sense: thus in the civil law death signifies banishment; but in its popular acceptation a dissolution of the parts of the natural body.
X. In promises likewise, some things are of a favourable, some an odious, and others of a mixed or indifferent description. Favourable promises are those which contain an equality of terms, or which bear some relation to the common good, the magnitude and extent of which increases the favour of the promise: so that all engagements more conducive to peace than to war are to be considered as those of a favourable complexion, and alliances for mutual defence are always regarded as a more laudable object than those for offensive war.
Treaties of an odious kind are those which lay greater burdens on one party than on the other, which contain penalties for non-performance, or which lead to an abrogation or infraction of former treaties. Whereas, though engagements of a mixed nature may create a deviation from former treaties, they may be taken either in a favourable or odious light, according to the magnitude, or object of the change produced. If it be for the sake of peace, it is better, taking all circumstances into consideration, to rank them with those of a favourable kind.
XI. The distinction made by the Roman law between acts of equity and those of strict justice, cannot GENERALLY be applied to the law of nations, though it may in some cases be adopted. Thus in any transaction between the subjects of two countries, in each of which the same form of legal proceeding is observed, the parties are supposed to treat without any intention of deviating from the common rule and form, unless they have expressly determined to the contrary. But in acts for which no common rule is prescribed, as in donations and free promises, there the parties are supposed to treat according to the strict letter of the agreement.
XII. After the establishment of the former positions, the subject naturally proceeds to the rules themselves, which are to be observed in the interpretation of treaties. And in the first place we may remark, that in things, which are not of an odious nature, words are to be taken strictly in their popular meaning, and where they admit of exceptions, or have more significations than one, it is lawful to use that which is most extensive. As it has been already observed, that both Logicians and Grammarians frequently use particular terms in a general sense. Thus Cicero in pleading for Caecina, justly maintains that the interlocutory decree, ordering THAT THE PERSON EJECTED FROM HIS INHERITANCE SHOULD BE REINSTATED IN THE POSSESSION, implies not only an ejectment, but extends to any forcible prevention of the owners taking possession.
In things of a favourable nature, if the parties engaged are acquainted with the legal principles, upon which they proceed, or rest upon the judgment of those who are so, the words used may be taken in their most extensive signification, including even terms of art and of law.3 Again, we must never have recourse to a metaphorical interpretation, except where the literal meaning would lead to a direct absurdity, or would defeat the intention of a treaty.
On the other hand a passage may be interpreted in a more limited signification, than the words themselves bear, if such interpretation be necessary, to avoid injustice or absurdity. If no such necessity exist, but equity or utility manifestly require a restriction to the literal meaning, it must be most rigidly adhered to, except where circumstances compel us to do otherwise. But in things of an odious nature a figurative expression may be allowed in order to avoid inconvenience or injustice. Therefore, when any one makes a grant, or relinquishes his right, though he express himself in the MOST GENERAL terms, his words are usually RESTRICTED to that meaning, which it is probable he intended. And in cases of this kind, the hope of retaining a thing is sometimes taken for the act of possession. In the same manner it is understood that subsidies of men, promised by one party only, are to be maintained at the expence of the power, who requires them.
XIII. It is a famous question whether the word ALLIES includes only those who were such at the time of making the treaty, or those who might afterwards become so: as was the case in the treaty made between the Roman people and the Carthaginians at the conclusion of the war that had originated in a dispute about Sicily, by which treaty it was stipulated that both powers should forbear attacking the allies of each other. Hence the Romans inferred that although the convention made with Asdrubal, by which he was prohibited from passing the Iberus, had been of no service to them, as it had not been ratified by the Carthaginians, yet if the Carthaginians sanctioned the conduct of Hannibal in his attack upon the people of Saguntum with whom the Romans, after the making of that convention, had entered into an alliance, they should consider themselves as authorized to declare war against the Carthaginians for having violated a solemn treaty. Upon which Livy reasons in the following manner, By the clause in favour of allies on both sides, there was sufficient security for the Saguntines. For there was no limitation of the words to those, who were allies at that time, nor were they such as to exclude either power from making new alliances. But if both sides were at liberty to make new alliances, who could think it just to deprive the new allies of that protection to which they would be entitled from treaties of amity? The exclusion could reasonably go no further than to declare that the allies of the Carthaginians should not be seduced to renounce their engagements, nor if they did so, be admitted into alliance with the Romans.
The last passage is taken, almost word for word, from the third book of Polybius. On which we may observe that the word ALLIES may strictly mean those, who were so at the time, when the treaty was made, and, without any forced interpretation, may also be extended to embrace those, who afterwards became such. To which of these interpretations the preference is to be given may be seen from the rules above given: and according to those rules, it will be found, that alliances formed after the making of the treaty will not be comprehended in it, because it relates to the breach of a treaty, the violation of which is an odious act, and tends to deprive the Carthaginians of the liberty of redressing themselves by force against those who were supposed to have injured them; a liberty sanctioned by the law of nature, and not to be abandoned on any slight occasion. Were the Romans debarred then by this rule from making any treaty with the Saguntines, and defending them after they became allies? No! they had a right to defend them, not by virtue of any treaty, but upon principles of natural justice, which no treaty can annul. The Saguntines therefore with respect to both powers were in the same situation, as if no engagement had been made in favour of allies. In this case, it was no breach of treaty for the Carthaginians, upon just grounds, to commence hostilities against the Saguntines, nor for the Romans to defend them. Upon the same principle, in the time of Pyrrhus, it had been stipulated, by treaty, between the Carthaginians and Romans, that if either of them afterwards entered into any engagement with Pyrrhus, the party so contracting should reserve to itself the right of sending succours to the other, if attacked by that king. Though in that case the war ON BOTH SIDES could not be just, yet it would involve no infraction of any treaty. This is an example of a case in equal treaties.
XIV. The case of an unequal treaty may be put, where it is agreed that one of the confederate parties shall not make war, without the consent, or by the injunction of the other, which was stipulated in the treaty between the Romans and Carthaginians, after the conclusion of the second Punic war. When the term WAR is applied to war of every description, particularly to offensive rather than defensive war; in a dubious case, it must be limited to its proper signification, lest the treaty should operate as too great a restraint upon the liberty of that power, which has engaged in the unequal treaty.
XV. Of the same kind is the promise given by the Romans, that Carthage should be free, which could never means the enjoyment of complete independence, by a people, who had long before lost the right of making war, and many of their other privileges. Yet it left them some degree of liberty, so much at least, that they should not be obliged to remove the seat of their government at the command of any foreign power, and gave them a pledge that their city should not be disturbed. It was in vain then for the Romans to urge that it was only the city which was intended. Whereas those acquainted with the use of metaphorical language know that by the city is frequently meant the inhabitants, and government with its privileges, and not the mere walls and houses. For the term, BEING LEFT FREE, implies that the people should enjoy their own laws.
XVI. The nature of personal and real treaties is a frequent subject of inquiry, which may properly be examined in this place. Indeed in all transactions with a free people, the engagements entered into with them are of a real nature; because the subject of them is a permanent thing. So permanent, that, although a republican be changed into a regal government, a treaty will remain in force: for the political body continues the same, although the head be changed, and the sovereign power, which before was diffused among many members, is now centered in one. Yet this rule will admit of an exception, where it is evident that the specific form of government made an essential part of the treaty, as when two states make a federal union for the mutual preservation of their political systems. But if a treaty be made with a KING OR SOVEREIGN PRINCE, it does not consequently follow that it is to be considered only as a PERSONAL and not a REAL treaty. For the name of a person may be inserted in a treaty, not merely to give it the character of a personal treaty, but to point out the contracting parties. And this will be still more evident, if, as is usual in most treaties, a clause is annexed declaring it to be perpetual, or made for the good of the kingdom, or with the king himself, and his successors, and it will also be considered as a real treaty, even if it is stated to be passed for a definite time. The treaty between the Romans and Philip, King of the Macedonians, seems to have been of this description, which upon the refusal of his son to continue it, gave rise to a war.
Other forms too besides those already named, and the subject itself, will frequently supply no improbable grounds of conjecture. But if the conjectures are equal on both sides, it will remain that favourable treaties are supposed to be real or permanent, and odious ones only personal. All treaties of peace or commerce are favourable. Yet all treaties of war are not odious, especially those of the defensive kind, such a character belonging only to offensive wars, from the contemplation of the calamities which they inflict. It is presumed too, that in the formation of treaties, the character of each party is taken into the account, and that both are persuaded that neither of them will commence hostilities, but from just and important causes.
What is usually said of societies terminating with the death of the parties, has no connection with this subject, but relates to private societies, the cognizance of which belongs to the civil law. Whether it was right or wrong therefore in the people of Fidenae, the Latins, Tuscans and Sabines, upon the death of Romulus, Tullus, Ancus, Priscus, Servius, to abandon the respective treaties made with those kings, it is impossible for us now to decide, those treaties being no longer extant. On the same point, Justin maintains a discussion, whether those states, which had been tributary to the Medes, were upon a change of government, released from their obligations. For the thing to be considered is, whether the convention with the Medes had been a voluntary act of their own. Indeed the argument of Bodinus can by no means be admitted, which is, that treaties made with kings extend not to their successors; For the obligation of an oath is limited to the person of him, who takes it. It is true that the oath itself can bind only the person who takes it; yet the engagements, which it confirms, will be binding upon his heirs. Nor is it to be taken for an established maxim, that oaths are the only foundation, on which treaties rest. The engagement itself is sufficiently binding, the oaths being only added to give it the greater sanctity. In the Consulship of Publius Valerius, the Roman people had taken an oath to muster at the command of the Consul. Upon his death, he was succeeded by Lucius Quintius Cincinnatus. Some of the tribunes began to quibble, pretending that the people were released from their obligation. Upon which Livy, in his third book, remarks, that at that time they had not degenerated into the disregard of religious obligations, which marked his age: nor did every one allow himself a latitude in explaining oaths, and laws, but thought that he was bound to conform to their literal meaning.
XVII. A treaty made with a king continues in force, even though the same king or his successor should be banished from the kingdom by rebellious subjects. For the rights of a king, among which his alliances may be reckoned, remain unimpaired, during the temporary loss of his throne. A case to which the expression of Lucan may be applied, that order never loses its rights under any change of circumstances.
XVIII. On the other hand, any war, if it be with the consent of the lawful sovereign, made upon the invader of his kingdom, or upon the usurper of a free peoples rights before his usurpation has received public sanction, will be deemed no infraction of any former treaty with the established authorities of that kingdom or country. For acts of usurpation convey not immediately any right beyond that of bare possession. And this is what was said by Titus Quintius to Nabis, We made no treaty of alliance and amity with you, but with the just and lawful king of the Lacedaemonians. For in treaties the characters of KING, SUCCESSOR, and the LIKE, carry with them an idea of a peculiar and lawful right, which must always render the cause of USURPERS odious.
XIX. It was a question formerly discussed by Chrysippus, whether a prize promised to him, who first reached the goal, could be given to two, who reached it at the same time, or to neither. But as rewards of merit are things of a favourable nature, it is the juster opinion that they should divide the prize. Although Scipio, Caesar and Julian acted more liberally, in giving the entire prizes to each of those who had ascended the walls together.
XX. There is also another kind of interpretation, arising from conjectures, which apply exactly to the signification of the words containing a promise or engagement; and that is of a twofold description, either extending or limiting the meaning. But it is more difficult to extend than to limit the acceptation of expressions. For as in all matters the want of one essential requisite is sufficient to defeat their effect; so in engagements, those conjectures, which extend the obligation are not readily to be admitted. And it is much more difficult here than in the case above mentioned; where words allow a more extensive but less familiar acceptation. For here it is seeking a conjecture to extend the words of a promise: the conjecture therefore, which is to create an obligation, ought to be very certain. Nor is it sufficient that there is some resemblance in the motives; for the motive produced to confirm an obligation must be exactly the same as that of the case under consideration. Neither is it always proper to allege a motive for extending an obligation; because, as it has been already said, motives, in actuating us to form engagements, may sometimes be swayed by the will which often acts independently of any just motive. To authorise therefore such an extension, it must be evident that the motive, produced as an example and authority, was the sole and effectual cause, which influenced the promiser, and that he considered it in the same extensive view; for otherwise it would have been unjust and prejudicial. The ancients in their treatises on rhetoric follow the same rule, when, in speaking of the LETTER and DESIGN, they give us one invariable form of expressing the same sentiment, but in their syllogisms or arts of reasoning they point out a way of interpreting what is not written, by what is written. In the same manner too legal writers lay down rules for avoiding frauds. Now if at a time, when there was no other mode of fortifying towns, than by surrounding them with walls, it were stipulated that a certain place should not be so surrounded, it is evident that to employ any other means of fortification would be a breach of that treaty.
As in the above case the interpretation must be extended to guard against every possible evasion, so in the following example, the prohibition to assemble an armed force to assail us includes all kinds of violence and force, by which our lives and security may be endangered.4
XXI. Hence may be solved the question to be found in Gellius, respecting a commission, whether it can be fulfilled by doing, not the immediate act required, but some thing equivalent to it, or in a manner more beneficial than in the form prescribed. For this deviation from the written rule may be proper and lawful, where the prescribed form is not essential towards attaining the object, or where, by departing from it, that object can be better accomplished, according to the answer given by Scaevola, that the person required to be bail and security for another, may give an order to a third person to pay that money to the creditor. But where such a latitude of interpretation is not evidently admissible, we must adhere to what Gellius has said in the same place, that it would be a dissolution of all trusts, if the party acting in commission were, in all cases, left to his own discretion, rather than bound by his written instructions.
XXII. An interpretation, restricted more closely than the literal signification of the words containing a promise absolutely requires, may arise either from some original defect in the intention of the promiser, or from some subsequent emergency repugnant to such intention. Thus if it were evident that an absurdity would follow the fulfilment of a promise, this would be sufficient to prove an original defect in the intention, because no man can be supposed to have deliberately intended doing an absurd act. Or if the sole and effectual reason, by which the promise was influenced, should have ceased, the obligation also would be void, the sole ground on which it rested being no longer in existence.
XXIII. In the next place, where any sufficient reason can evidently be assigned for a promise or engagement, it is not the substance of the promise itself, which is to be considered, so much as the reason for which that promise was given.
XXIV. Thirdly, the contending parties must always be supposed to have in contemplation the subject, and nothing but the subject, however extensive a signification the words may seem to bear. This method of interpretation also is handled by the ancient rhetorical writers, in speaking of expression and design, and they place it under the head of VARIATIONS IN OPINION.
XXV. In speaking of motives and reasons, it is proper to observe, that they some times comprehend things, considered not according to their actual existence, but according to their moral consequences: in which case it is by no means right to limit the words of a treaty to their literal meaning, but the utmost extent of interpretation is allowable, in order to maintain the spirit as well as the letter of such treaties. Thus if it be stipulated that no troops or ships shall be brought to a certain place, or within a certain distance, the prohibition excludes ALL ships or troops from being brought thither, even under the fairest and most harmless pretences. For the purport of the treaty is to guard not only against actual mischief but even against remote danger.
It is a point often disputed, whether the continuance of things in their present state is a tacit condition, on which the fulfilment of all promises is founded. A position that can by no means be maintained, unless it appears that such continuance was the sole motive upon which the treaties were made. As in many parts of history, we read of ambassadors having relinquished their missions and returned home, upon finding the state of things so changed that the object of their embassies was at an end.
XXVI. When an emergency arises repugnant to the general intention of an act, it is explained by the ancient masters of rhetoric under the head of expression and design. Now this variation between the emergency and the intention is of a twofold nature. For the will and its intention are to be collected either from natural reason or from some outward sign. In judging of the will by natural reason, Aristotle, who has treated the subject with great accuracy, makes the MIND the SEAT OF JUDGMENT, and the WILL the SEAT OF EQUITY, which he nobly defines to be the correction of that, wherein the law, by reason of its universal nature is defective.5
And upon this principle all wills and treaties ought to be interpreted. For as all cases could neither be foreseen nor expressed by the lawgiver, it is necessary to leave a power of excepting the cases, which he himself would have excepted if he were present. Yet this is not to be done upon light grounds; for that would be exercising a controul over the acts of another; but is only to be established upon the clearest evidence and strongest proofs. The clearest proof we can have of a want of equity, is where following the literal meaning of the words would be unlawful, that is, repugnant to natural or divine precepts. For such things, as are incapable of obligation, are necessarily to be excepted. Quintilian the elder, says, some things although comprehended within the meaning of no law form a natural exception. Thus any one, who has promised to return a sword, that has been given up to him, ought not to return it into the hands of a madman, as danger might result from it to himself or to other innocent persons. Likewise a thing, which has been deposited with any one, ought not to be returned to the hands of the person, who gave the pledge, if the real owner demands it. I prove this says Triphonius to be justice, which assigns to every one his own without disturbing the still juster claims of another. For the reason, it has been already observed, is founded on the institution of property, which makes it unjust not to return a thing when the real owner is known.
XXVII. The need of equity too will appear in cases, where following the literal meaning of the words will not be absolutely unlawful, yet, upon a fair estimation, will be found too hard and intolerable. It might impose a hardship inconsistent with the general condition of human nature, or, upon comparing the person and matter under consideration with each other, it might be found at variance with the general intent of all law, which is to prevent evil and to redress injury. Thus, if a person has lent a sum of money, or any other thing, for a CERTAIN time, he may justly require the repayment or restoration of it WITHIN that time, if he has great need of it himself: for acts of kindness are of such a nature, that no one can be supposed intentionally to bind himself thereby to manifest inconvenience or prejudice. In the same manner a sovereign, who has promised assistance to an ally, will, IN EQUITY, be excused from fulfilling his engagement, if he wants all his strength at home to ward off danger or hostilities. The grant also of immunities or privileges in ORDINARY cases, cannot be pleaded as an exemption or exception from the services, which the state in PARTICULAR emergencies requires.
From the above instances it appears that Cicero has too loosely worded his proposition, that such promises, as are prejudicial to the person, to whom they are given, are not to be kept, nor, if they are more prejudicial to the party giving, than beneficial to the person receiving them. For it should not be left to the promiser to judge, whether the fulfilment of his engagement will be serviceable to the party receiving it, except in the case of the madman cited above: nor is any TRIVIAL or IMAGINARY prejudice that might result from it, sufficient to release the obligation. But it ought to be such, as, according to the nature of the act, would necessarily be supposed to form an exception. Thus any one, having promised his assistance to a neighbour at a certain period, would not be bound to his engagement, if he were detained at home by the sickness of a father or a child. A case, which Cicero, in his first book of offices, has put in the following terms, If any one has undertaken to manage a cause, and, in the mean time, his son is taken ill, it will be no breach of duty in him not to perform what he has promised. There is a passage in the fourth book of Seneca, ON BENEFITS, to the same effect. I am liable, says he, to be charged with levity, and a breach of faith, if, things continuing as they were, when I made a promise, I do not perform my engagement. But if any change has taken place, it leaves me at liberty to reconsider the matter, and releases the obligation. I promised my support in court, and it afterwards appeared that the cause would be prejudicial to my own father. I promised to take a journey, but afterwards heard that the road was infested with robbers. I promised my presence on some particular occasion, but was prevented from attending by the sickness of a son. In all these cases, to bind me to my engagement, the circumstances ought to remain exactly the same as they were when I made the promise.
XXVIII. It has been said that there are other indications of intention, which require an equitable exception in favour of the present case. And among such proofs there can be nothing stronger than the same words used in another place, not where they directly oppose the present meaning, for that would amount to a contradiction, but where they clash with it, owing to some unexpected emergency, which the Greek Rhetoricians call a circumstantial disagreement.6
XXIX. When there is any accidental collision between one part of a written document and another, Cicero, in the second book of his treatise ON INVENTION, has given rules for deciding which of them ought to have the preference. Though his arrangement is not very accurate, yet it is by no means to be neglected. To supply therefore this defect of accuracy, the rules may be digested in the following order.
In the first place, a PERMISSION ought to give way to a COMMAND: because a permission appears to be granted only in case there is no weightier objection than its being an exception to a positive precept, nor any preponderance in favour of an opposite determination. Consequently, as the writer to Herennius says, what is positively prescribed is more powerful than a bare permission.
In the next place what is required to be one at a FIXED time should have the preference to what may be done at ANY time. From whence it follows that the PROHIBITIONS of a treaty are generally of more weight than its INJUNCTIONS: because the prohibitory power operates at ALL times. But it is not so with injunctions, unless an express time for their fulfilment is named, or they contain a tacit prohibition.
Among those treaties, which, in the above named respects, are equal, the preference is given to such as are more particular, and approach nearer to the point in question. For where particulars are stated, the case is clearer, and requires fewer exceptions than general rules do.7
Those prohibitions which have a penalty annexed to them, are of greater weight than those, which have not; and those with a greater penalty are enforced in preference to those that have a less. Those engagements also which are founded upon causes of less magnitude and importance ought to give way to those which have more laudable and useful objects in view.
From what has been said an inference may be drawn in favour of sworn treaties or agreements that they ought to be taken in the most usual acception of the words, rejecting all implied limitations and exceptions, and such as are not immediately necessary to the subject. Consequently in a case, where a sworn treaty or engagement may happen to clash with another not enforced by the obligation of an oath, the preference ought to be given to the former.
XXX. It is often asked whether in doubtful points, a contract should be deemed perfect, before the writings are made and delivered. We find in Appians history of the Mithridatic war, that it was upon this very ground Murena objected to the convention between Sylla and Mithridates. However it appears plain, unless it has been settled to the contrary, that writing ought to be considered admissible as evidence of a contract, though not as part of the substance, otherwise it is usually expressed, as in the truce with Nabis, which was to be ratified from the day the terms were WRITTEN and DELIVERED to him.
XXXI. We can by no means admit the rule laid down by some writers, who maintain, that all engagements of kings, and states, ought to be explained, as far as it is possible, upon the principles of the Roman law: unless indeed it can be made to appear that among some states, in their intercourse with each other, the CIVIL LAW is received as the LAW OF NATIONS; a presumption which ought not to be hastily granted.
XXXII. As to the doubt, which Plutarch advances in his Symposiacs, whether the words of the party offering, or those of the one accepting a condition ought to be most attended to, it appears that where the party accepting the terms is the promiser, the nature and substance of the transaction will depend upon his words, if they are absolute and unqualified. For if the offer is regarded as a positive engagement to do certain acts, then the full extent of it will be seen by the necessary repetition of the same words in the promise. But before a condition is accepted, it is evident, as was seen in the chapter on promises, that the promiser is not bound to its fulfilment; for no right has been conferred by the one party, or acquired by the other. Therefore the offer of a condition of this kind does not amount to a perfect promise.
Note 1. In all human affairs, where absolute certainty is not at hand to point out the way, we must take probability for out guide. In most cases it is extremely probable that the parties have expressed themselves conformably to the established usage: and such probability ever affords a strong presumption, which cannot be overruled but by a still stronger presumption to the contrary. Camden, in his history of Queen Elizabeth, gives us a treaty, in which it is expressly said that the treaty shall be precisely understood according to the force and appropriate signification of the terms.Vattel, b. ii. ch. xvii. sect. 271. On the same subject, Judge Blackstone says, that words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use.Introduct. to Com. ch. ii. p. 59. [back]
Note 2. The word DAY is understood of the NATURAL DAY, or of the time during which the sun affords us his light, and of the CIVIL DAY, or the space of twenty-four hours. When it is used in a convention to point out a space of time, the subject itself manifestly shews that the parties mean the civil day, or the term of twenty-four hours.Vattel, b. ii. ch. xvii. sect. 280. [back]
Note 3. It is a fundamental rule of construction, that penal statutes shall be construed strictly, and remedial statutes shall be construed liberally. It was one of the laws of the twelve tables of Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle our law has adopted in the construction of penal statutes: for whenever any ambiguity arises in a statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or in favour of natural right and liberty: or, in other words, the decision shall be according to the strict letter in favour of the subject. And though the judges in such cases may frequently raise and solve difficulties contrary to the intention of the legislature, yet no further inconvenience can result, than that the law remains as it was before the statute, and it is more consonant to principles of liberty, that the judge should acquit whom the legislator intended to punish, than that he should punish whom the legislator intended to discharge with impunity. But remedial statutes must be construed according to the spirit: for in giving relief against fraud, or in the furtherance and extension of natural right and justice, the judge may safely go even beyond that which existed in the minds of those who framed the law.Christians Notes on Blackst. Comm. Introd. p. 87. [back]
Note 4. The case of a promise made on the supposition of a posthumous childs dying, instanced by our author in this place, bears so near a resemblance to that of a fathers bequeathing his property to another, believing his son to be dead, that it is omitted in this chapter having been already given under the head of erroneous promises in the xi. chapter and 6th section of this book.(Translator.) [back]
Note 5. The variety of human transactions cannot be comprised within general rules. Occasional decrees therefore become requisite; which vary with each variation of circumstances, for the measure of what is indefinite must be indefinite itself, like the leaden ruler in the Lesbian architecture, which changes its own shape according to that of the stones to which it is applied. It is manifest, therefore, that equity is a species of justice, and contrasted with another species to which it is preferable. A man of equity is he who deliberately and habitually exercises this virtue; who prefers it in all his dealings to the rigour of justice; and who, even when the law is on his side, will not avail himself of this advantage to treat others injuriously or unhandsomely.Aristot. Eth. b. v. ch. x. [back]
Note 6. Owing to circumstances there may be a variation in the conduct, and yet no change in the principles of a state. This must frequently happen in the commercial regulations between different countries, who are obliged to vary their means to secure the unity of their end. Or if in a treaty between two nations, it is declared there shall be PERPETUAL amity, and a subsequent declaration of war by one of the parties pronounces such amicable relations to be at an end, here there is no variation in PRINCIPLE but in CIRCUMSTANCES, which render such a dissolution of the amity, that was originally intended to be perpetual, necessary to the welfare and preservation of that power, the sole object of all treaties. [back]
Note 7. To illustrate the nature of GENERAL AND PARTICULAR cases, the following example is taken from the Puffendorf:One law forbids us to appear in public with arms on holidays: another law commands us to turn out under arms and repair to our posts, as soon as we hear the sound of the alarm bell. The alarm is rung on a holiday. In such case we must obey the latter of the two laws, which creates an exception to the former.Jur. Gent. lib. v. c. xii. sect. 23. [back]