Front Page Titles (by Subject) CHAPTER XVI: Of Interpretation, or the Way of explaining the Sense of a Promise or Convention. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER XVI: Of Interpretation, or the Way of explaining the Sense of a Promise or Convention. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of Interpretation, or the Way of explaining the Sense of a Promise or Convention.
I.How Promises do outwardly oblige.I. 1. If we respect the Promiser only, he is obliged to perform freely, what he was willing to be obliged to. When you promise, says Cicero,1we must consider rather what you mean than what you say. But because the inward Acts and Motions of the Mind are not in themselves discernible, and there would be no Obligation at all by Promises, if every Man were left to his Liberty, to put what Construction he pleased upon them, therefore some certain Rule must be agreed on, whereby we may know, what our Promises oblige us to; and here natural Reason will tell us, that the Person to whom the Promise is given, has a Power to force him who gave it, to do what the right Interpretation of the Words of his Promise does require. For otherwise no Business could come to a Conclusion, which in moral Things is reckoned impossible. Perhaps it was in this Sense that Isocrates, treating of Agreements, in his Prescription against Callimachus, said Τούτῳ νόμῳ Κοινῷ πάντες ἄνθρωποι διατελον̂μεν χρώμενοι, (as the learned Peter Faber has judiciously corrected that Passage) We always make use of this Law, as a Law that is common to all Mankind,2 not only the Greeks, but the Barbarians too, as the same Author had a little before expressed it.<353>
2. And to this agrees that Clause in the antient Form of Leagues, mentioned by Livy,3Without any Trick or Collusion,4just as the Words are now used and understood. The best Rule of Interpretation is to guess at the Will by the most probable Signs,5 which Signs are of two Sorts, Words and Conjectures; which are sometimes considered separately, sometimes together.
II.Words to be understood as commonly taken unless there are good Conjectures to the contrary.II. If no Conjecture guides us otherwise, the Words are to be understood according to their Propriety,1 not the grammatical one, which regards the Etymon and Original of them, but what is vulgar and most in Use, for
And therefore it was a foolish pitiful Shift that2 the Locrians made Use of, when, having put some Mould into their Shoes, and carrying some Heads of Garlick privately on their Shoulders, they swore they would keep the Articles of the Treaty, as long as they carried those Heads on their Shoulders, and trod on that Earth, and then threw the Earth out of their Shoes, and the Heads of Garlick from their Shoulders, as if by that poor Means they were absolved from their Oaths; which Story is in Polybius. We have also several Examples of the like Treachery in Polyaenus, 3 which there is no Occasion to mention, because no Body doubts them. But Cicero4 well observed, that this is not the Way to prevent Perjury, but to render it more criminal.
III.Terms of Art are to be explained according to the respective Art they belong to.III. But1 Terms of Art, which the common People are very little acquainted with, should be understood as explained by them who are most experienced in that Art, as what Majesty is, what Parricide; which the Professors of Rhetorick refer to the common Place of Definition.2 For, as Cicero says in his first of the Academicks, The Terms of Logick are not common Words, but peculiar to that Subject, as indeed are the Terms of almost every Art. So when in Treaties the Word Army is used, it is to be understood of a Multitude of Soldiers, that publickly invade another’s Dominions. For Historians generally distinguish between those who plunder a Country privately, like Robbers, and those who do it openly with regular Troops. Where fore the best Way to judge what Numbers make an Army, is by the Strength of the Enemies. Cicero reckons six Legions, with some Auxiliaries, an Army.3Polybius said a compleat Roman Army was 16000 Romans, and 20000 Allies,4 but a less Number may sometimes do it. Ulpian calls him a General who commanded, tho’ but one Legion, with its Auxiliaries;5 that is, as Vegetius expounds it, 10000 Foot, and 2000 Horse.6 And Livy makes a just Army 8000.7 <354> The like may be said of a Fleet. So8 a Fort is a Place so strong as to be able to keep off an Enemy’s Army for some Time.
IV.We use Conjectures where Words are ambiguous, or seem contradictory, or because such Conjectures do naturally offer themselves to us.IV. 1. Conjectures are necessary, when Words and Sentences are, Πολύσημα, Of several Significations, which the Rhetoricians call, ἐξ ἀμϕιβολίας, Doubtful, and Ambiguous. But the Logicians are nicer in their Distinctions; for if a Word can have several Significations, they call it, ὁμωνυμία, An Equivocation; if a Sentence ἀμϕιβολία, An Ambiguity.1 And we must also use Conjectures, when in any Contracts there is, ἐναντιοϕανεία, A seeming Contradiction. For we must needs have Re-course to Conjectures, when several Parts seem to clash with one another, in Order to reconcile them if we can; but if that cannot be, then the last Clauses which the Contractors agreed on, shall set aside the former. Because it is impossible, that at one and the same Time a Man can intend two Contraries; and it is so much the very Nature of Acts which depend upon the Will, that we may at any Time, by a new Act of the Will, go off from them, either on one Side only, as when a Law or a Testament is revoked by him who made it; or on both Sides, where the Consent of several is required, as in Contracts and Agreements. This the Rhetoricians call, ἒξ ἀντινομίας,2A Contrariety of Laws. In which Cases, the manifest Obscurity of the Words justifies our Recourse to Conjectures.
2. And sometimes the Conjectures themselves are so plain, that they carry us to a Sense contrary to the more common Acceptation of the Words. This the Greek Orators call περὶ ῥητον̂ καὶ διανοίας,3 the Letter and the Design, the Latin ones, Ex scripto & sententia scripti, From the Writing, and the Meaning of the Writing. The principal Heads from whence these Conjectures arise, are the Matter, the Effect, and the Circumstances or Connection.
V.From the Subject-Matter.V. First,1 From the Matter, as the Word Day, (if a Truce be made for thirty Days) ought not to be understood of natural Days2 but of artificial ones, as agreeable to the Subject-Matter. So the Word Giving3 is taken for a Forbearance,<355> according to the Nature of the Affair it is employed in. So the word Arms sometimes signifies Instruments of War, sometimes armed Soldiers, and is to be interpreted either in this or that Sense, as the Matter in hand requires. So he who has promised to restore Men, must restore them living, and not dead; not to trick and cavil as the Plataeans did.4 So when People are required to lay down their Iron, (Ferrum) they satisfy the Order, if they lay down their Weapons without their Buckles, as Pericles with his Shifts and Quirks pretended.5 And by a free going out of a City, is meant a safe Conduct, contrary to what Alexander did.6 And by leaving half the Ships, is meant half of the number of the Ships, whole, not cut in two, as the Romans basely dealt with Antiochus.7 The same Judgment may be formed in other like Cases.
VI.From the Effect.VI. Secondly, from the Effect, where the main Thing to be observed is, whether if the Word taken in its common Sense does produce an Effect contrary to Reason. For where a Word is ambiguous,1 we must rather take it in that Sense which is liable to no Absurdity. It was then an idle Cavil of Brasidas,2 who having promised to depart out of the Land of the Boeotians, said afterwards, that the Place where his Army was encamped, did not belong to the Boeotians, as if his Promise had referred to the Possession which the present Fortune of War had given him, and not to the antient Limits of the Boeotians; in which Sense the Agreement it self had been vain and of no Effect.
VII.From the Circumstances and Connexion.VII. Lastly, from1 the Circumstances and Connexion of the Words with others,2 either spoken in the same Place, or only by the same Person. That which proceeds from the same Will, tho’ delivered in some other Place, or upon some other Occasion, has thereby a Connexion, which gives Room for reasonable Conjectures; for in a dubious Case, the Will is presumed to be consonant to itself. Thus in Homer,3 what Menelaus and Paris concluded on, that Helena should be the Conqueror’s, must be so explained from the Sequel, that the Conqueror should be he who killed the other.4 And Plutarch gives the Reason ὁι δικασταὶ τω̂ μηδεν, &c. Judges are guided by that which is plain, letting what is obscure and less evident quite alone.5
VIII.To this belongs that Conjecture which is drawn from the Motive, and when and how this Conjecture is of Service.VIII. Among the Circumstances of Place, the principal and most weighty1 is the Reason of the Law, which some confound with the Intent of it;2 whereas it is but one of those Signs, by which we trace out the Intent of the Law. Now of all Conjectures this is the strongest, when it manifestly appears, that the Will was<356> moved to such a Thing by some one Reason as its only Cause; for there may often be many Reasons,3 and sometimes the Will by Vertue of its Freedom, without any Reason at all determines,4 and this is sufficient to create an Obligation. Thus a Present, or Deed of Gift, made in Prospect, and on the Account of Marriage,5 is revocable and void, if no such Marriage does ensue.
IX.The Distinction of Significations into such as are loose and extensive, and such as are strict and precise.IX. But we must know that many Words have several Significations, one more strict and precise, the other more loose and extensive, which may happen upon several Accounts, either because the Name of the Genus is peculiarly applied to one of the Species, as in the Words1 Cognation and Adoption; and in Nouns of the Masculine Gender, which are taken for the Common, where the Common is wanting; or because Art allows a Term a less confined Signification than vulgar Use indulges. As Death in the Civil Law extends to2 Transportation or Banishment,3 whereas in the common Acceptation it signifies quite another Thing.
X.The Distinction of Promises into favourable, odious and mixt or middle ones.X. We must also observe, that of Things promised some are favourable, others odious, and others of a mixt or middle Nature.1 The favourable are those that<357> carry in them an Equality, and respect the common Advantage,2 which the farther it extends, the greater is the Favour of the Promise, as in those that make for Peace, the Favour is greater than in them that make for War; and a defensive Warh as more Favour allowed than one undertaken upon any other Motive. Others are odious, such as those that lay the Charge and Burden on one Party only, or on one more than another; and those which carry a Penalty along with them,3 which invalidate some Acts and alter others. And if any be of a mixt Nature, as altering something of what was before agreed on, but yet for the sake of Peace, it shall according to the greatness of the Good, or the manner of the Alteration be reputed sometimes favourable, sometimes odious, yet so that if other Circumstances are equal, the favourable shall have the Preference.
XI.The Difference between Contracts due in Equity, and such as are due in strictness of Law, rejected, as to the Acts of States and Princes.XI. The Difference of Acts due in Equity, and those due in strictness of Law,1 if we mean only the Roman Law, does not belong to the Law of Nations; but yet may it in some Sense be properly enough referred hither; as for Instance, if in any Countries there be some Acts which have one certain common Form; that Form,2 as far as it is not changed, may be understood to be in such an Act: But in other Acts which are in themselves indefinite, such as a free Donative, or a free Promise, we should stick rather to the Words.
XII.Out of these Distinctions some Rules are formed, that may direct us in our Interpretations of the Meaning of Words and Promises.XII. 1. These Things premised, we must observe these following Rules; in Cases not odious1 we must understand the Words in their full Extent, as they are generally taken; and if they are ambiguous, then they must be taken in the largest Sense, as the Masculine is to be taken for the common Gender; and an indefinite Expression shall be understood universally.2 Thus these Words, unde quis dejectus est, from whence a Man has been ejected,3 shall be extended to the restoring of him who is by Force and Violence kept out and hindered from coming to his own; for the Expression in its largest Sense will admit of this Construction, as Cicero pleads in his Oration for Caecina.
2. In a Matter altogether favourable, if he who speaks be versed in the Law, or speaks by the Advice of those who are, the Words shall then be taken in their larger Sense, so as to include that Signification also which is used among the Lawyers, or which the Law has imposed upon them.4 But we are not to run to Significations evidently improper, unless otherwise some gross Absurdity would follow,<358> and the Agreement itself would be to no Purpose. On the other Hand, Words are to be taken even more strictly than the Propriety will bear, if it be necessary in order to avoid an Injustice, or an Absurdity; and without such a Necessity, if there be a manifest Equity, or Advantage in the Restriction, we are to confine ourselves within the narrowest Bounds of their Propriety, unless Circumstances persuade us otherwise.
3. But in an odious Matter, even a figurative Speech is allowed to avoid a Grievance: Therefore in a Donation, and when a Man recedes from his Right, tho’ the Words be general, yet are they usually confined to those Things only which were probably then thought of.5 And in Things of this Kind, that is sometimes understood to be only possessed, which we have Hopes of keeping. Thus a Body of Troops promised by one Party only, is presumed to be raised at the Charge of that Party which desires it.
XIII.Whether under the Name of Allies future ones are comprehended and how far they are so; where also of the Romans Treaty with Asdrubal , and such Controversies as these.XIII. 1. ’Tis a remarkable Question, whether by Allies1 are meant those only who are so at the making of the League, or they also which come in afterwards; as in that League made between the Romans and Carthaginians after the Sicilian War, where it was agreed, That the Allies of the one should not be molested by the other.2 Hence the Romans inferred, that tho’ the Treaty made with Asdrubal of not passing the River Iberus was of no Advantage to them, because the Carthaginians had not ratified it, yet if the Carthaginians should approve and countenance the Fact of Hannibal, in besieging the Saguntines, whom the Romans after that Treaty had taken into their Alliance, they might justly declare War against them, as Violaters of their League. Livy sets down the Reasons thus,3The Security of the Saguntines was sufficiently provided for, the Allies on either Side being excepted, for neither was it added that this should regard only those who were then so,4nor that none should afterwards be admitted. And since it was lawful for them to admit new Confederates, who could think it reasonable, either that no People should be received upon any Merit whatsoever, or that being received, they should not accordingly be defended; only that none of the Allies of the Carthaginians should be either tempted to revolt, or received into Protection if they voluntarily did so? Which seems to be taken almost Word for Word out of Polybius. What shall we say to this? The Word Allies, no doubt of it, might with the greatest Justness and Propriety of Speech, admit both that stricter Signification which imported those who were actually so at the Time of the Treaty, and also that larger one which comprehended those too who should hereafter become so. But which of these Interpretations is the better, may easily be discovered from the Rules before-mentioned, according to which we say, that future Allies were not implied, because the Question here is about breaking the League, which is an odious Matter,5 and about the depriving the Carthagi-<359>nians of their Liberty of bringing those by Force of Arms to Reason,6 who were believed to have injured them,7 a Liberty which by the Law of Nature was their Due, and therefore not rashly to be supposed renounced.
2. And was it not lawful then for the Romans to make an Alliance with the Saguntines, or to defend them after they had done it? Yes, certainly they might, not by Vertue of the Treaty, but by the Law of Nature, which by that Treaty they had not renounced. So that the Saguntines were in Regard to both Parties, as if in that Treaty there had been no Article at all relating to Allies, in which Case the Carthaginians had done nothing contrary to the Stipulation, if they employed the Arms, which they looked upon to be highly just, against the Saguntines, nor the Romans if they defended them. As in Pyrrhus’s Time, when it was agreed between the Romans and the Carthaginians,8 that if either of the two People should enter into an Alliance with Pyrrhus, it should be with the Reserve, of having the Power and Freedom to send Assistance to that State which Pyrrhus should attack. I do not say that the War on both Sides in this Case could be just;9 but I deny that this was any Violation of the League10 in so doing. As Polybius rightly distinguishes concerning the Succours sent to the Mamertines, whether it were just, and whether the League would allow it.11
3. And this is what the Corcyreans tell the Athenians in Thucydides,12 that notwithstanding their League made with the Lacedemonians they might send them Succours, because they were allowed by that League to form any new Alliances when they pleased. And the Athenians afterwards acted on that Principle, ordering the Commanders of their Ships not to fight against the Corinthians, unless they saw them going to invade the Corcyreans, or their Territories, and this they did that they might not violate the Treaty. In effect, it is no ways contrary to, or incompatible with a Treaty, for one of the Allies to defend those who are injured by the other,13 so long as the Peace is in other Respects maintained. Justin writing of those Times, says the Athenians broke that Truce in Favour of their Allies, which they had made in their own Name, as if they would contract less Perjury by helping their Allies, than by engaging in open War themselves.14 We meet with the very same Thing in one of Demosthenes’s Orations concerning the Isle of Halonesus, where it appears, that by a certain Treaty of Peace between the Athenians and Philip it was stipulated, that the Cities of Greece that were not included in that Treaty, should remain free, and that those who were included in it, might, if they were<360> invaded, help them if they would. This is an Instance drawn from an Alliance upon equal Terms.
XIV.How it is to be understood, that one Party shall not make War without the other’s leave.XIV. We shall here give an Instance in unequal Leagues, as suppose it be stipulated that one of the Confederates shall not make War without the other’s Consent; as we took Notice before, that it was agreed on between the Romans and Carthaginians after the second Punic War, and also in the League between the Romans and the Macedonians, before the Reign of King Perseus.1 Now since under the Terms of making War, all Wars may be comprehended, or only offensive Wars, and not defensive; in this dubious Case we must take the Expression in its stricter Sense, lest our Liberty be too much restrained.2
XV.About the Words, that Carthage shall be free.XV. What the Romans promised,1That Carthage should be free, is of the same Kind, tho’ it could not reasonably be understood of absolute Independence from the Nature of the Act, (for they had long before lost the Right of making War, and several other Privileges) yet some Sort of Liberty it left them, at least so much as not to be obliged by another’s Order, to change and translate their City. It was then a false Construction which the Romans afterwards put upon that Promise, that by Carthage was meant the Citizens, not the City (which tho’ improper, may however be granted, because of the Attribute free, which agrees rather to the People than to the Town2 ). For in the Words, To be left free, αὐτόνομον, to be governed by their own Laws, as Appian3 says, was a manifest Sophistry.
XVI.What Treaties are to be esteemed Real and what Personal; this explained by Distinctions.XVI. 1. There is another Question which often arises, and may properly be referred to this Chapter, concerning Contracts real and personal.1 When we act with a free People, no doubt of it the Contract made with them is in its own Nature Real; because the Subject is a Thing permanent and durable.2 Nay, tho’ that Republican State should be turned into a Monarchy, the Treaty will hold good, because the Body of the People is still the same, tho’ the Head be changed, and (as I said before) the Sovereign Power does not cease to be the Power of the People, because it is exercised by the King; we must except this Case, where it appears that the Motive for so doing was peculiar to that Form of Government only, as when free States enter into an Alliance for the Defence of their Liberties.
2. But if a Contract is made with a King, it is not therefore presently to be reputed Personal, for as it is well observed by Pedius, and Ulpian, [[3 the Person is often inserted in the Contract, nor that the Contract is Personal, but to shew, by whom that Contract was made. If it be added to the Treaty, that it shall stand for<361> ever, or that it is made for the good of the Kingdom, or with him and his Successors, for this Clause καὶ τοɩ̂ς ἐκγόνοις, and to his Posterity, is what is usually expressed, as Libanius says in his Defence of Demosthenes, or if it be, for such a limited Time, it will from hence fully appear, that the Treaty is real. Such does4 the Treaty between the Romans and Philip King of Macedon seem to have been, which when Perseus his Son denied to be obligatory on him, occasioned a War.5 There are also other Words which may prove a Treaty to be real, and sometimes the Matter itself will afford a Conjecture not altogether improbable.]]
3. But when the Conjectures are equal on both Sides, all that we have to do, is to conclude, that those Treaties which are favourable, are real; and that the odious are personal.6 Treaties made for the Preservation of Peace and Commerce are favourable, nor are those for War always odious, as some think, but the ἐπιμαχίαι, that is, such as are entered into for mutual Defence, come nearer the favourable; ξυμμαχίαι, or offensive, nearer the odious and burthensome. Besides in a Treaty that allows any War, it is presumed that a Regard was had to the Prudence and Probity of him with whom it was made, as being a Person not thought capable of engaging either in an unjust or a rash War.
4. And whereas it is said, that Societies are dissolved by Death,7 I do not say any Thing of that here, for this belongs to private Societies, and depends upon the Civil Law. And therefore whether8 the Fidenates,9Latins, Hetrurians, and Sabines did right or wrong, in going off from their Treaty, upon the Death of Romulus, Tullus, Ancus, Priscus and Servius, cannot properly be determined by us, because the Words of the Treaty itself are not extant. Nor much different is that Controversy in Justin, whether the Cities which had been tributary to the Medes,10 did upon the change of the Empire change their Condition; for we must consider whether in that Convention they had particularly made choice of the Protection of the Medes. But Bodine’s Argument is by no Means to be allowed, that the Treaties of Princes do not oblige their Successors, because the Force of an Oath extends no farther than the Person of him who takes it.11 For the Oath may bind only the Person, and yet the Promise that is along with it, may bind the Heir.
5. Nor is it true, what he takes for granted, that all Treaties are grounded upon Oaths, for generally speaking there is Power enough in the very Promise to bind, tho’ for the greater Reverence and Solemnity, those Promises are confirmed by Oaths. When P. Valerius was Consul, the People of Rome had sworn to meet at the Summons and Order of the Consul; he dying, L. Quinctius Cincinnatus succeeded him;<362> and then some of the Tribunes took upon them to quibble, as if the People were no longer obliged by that Oath. Whereupon Livy gives his Judgment in the following Terms, There was then none of that general Disrespect for the Gods which possesses the present Age: Nor did every one, as now-a-Days they do, make their Oaths and their Laws stoop to the Construction that best served their Turns; but rather suited and accommodated their Manners to them.12
XVII.League with a King remains good, tho’ he be expelled his Kingdom.XVII. And it is certain too, that a League made with a King is valid, tho’ that King or his Successors be expelled the Kingdom by his Subjects; for tho’ he has lost his Possession, the Right to the Crown still remains in him, according to that of Lucan, concerning the Roman Senate:
XVIII.But it does not reach the Usurper of the Crown.XVIII. But on the other Hand, if with the Consent of the true King we make War on an Usurper, or any other Person who oppresses a free People, before that People has sufficiently declared their Approbation, we do nothing against any Article of Alliance; because1 tho’ they have got Possession, yet have they no Right. And this is what T. Quintius urged to Nabis: We never entered into any Friendship or Confederacy with you, but what Engagements we have are with Pelops the just and lawful King of Sparta.2 For in Treaties these Qualities of King, Successor, and such like, properly imply a Right, whereas the Term Usurper always imports an odious Cause.
XIX.To whom the Promise is due, when made to him who shall first do such or such a Thing, if it be done by many at once.XIX. ’Twas a Question formerly of Chrysippus’s, Whether a Reward promised to him who first gets to the Goal, and two get there together, is due to both, or to neither.1 And here indeed2 the Word first is ambiguous, for it may either signify him who out-runs all the rest, or him whom none out-runs. But because the Rewards of Virtue and Excellence are Things of a favourable Nature,3 the juster<363> Opinion is, that they should share the Prize betwixt them.4Scipio, Caesar5 and Julian acted more generously, in giving the entire Reward to each of those who had at one and the same Time scaled the Walls; and let this suffice for the Interpretation to be given to the proper or improper Signification of Words.
XX.A Conjecture freely offering itself may either enlarge the Sense; and when it may do so:XX. 1. There is also another Way of interpreting by Conjectures, founded upon something else besides the Signification of the Words in which the Promise is expressed; and this is done two Ways, either by enlarging or restraining them. But we have oftner less Reason to enlarge the Sense than to restrain it. For as in all Things, the want of any one necessary Cause, is enough to hinder the Effect, whereas all must concur to produce it; so in an Obligation, that Conjecture that enlarges the Obligation is not rashly to be admitted, but with a great deal more Caution than in the Case above-mentioned, where Words are allowed a large Signification, tho’ that Signification is not so much in Use; for here we look for a Conjecture, which the Words of the Promise do not directly imply, and therefore this Conjecture ought to be extremely certain, to form an Obligation from it. Nor will a Parity of Reason do here, but it must be exactly the same; nor is this always enough for such an Enlargement, because, as I said before, Reason does often so incline, as that the Will however is of itself a sufficient Cause without that Reason.
2. To justify such an Enlargement, we ought to be sure that the Reason under which that Case, which we would comprehend, falls, was the only and powerful Motive that inclined the Promiser, and that the Reason was in its general Sense considered by him; because otherwise the Promise would be either unjust or useless. This Part is commonly treated of by the Rhetoricians, in their common Place, περὶ ῥητον̂ καὶ διανοίας, about the Letter, and the Design, of which they give us one Instance, and that is, When we always express the same Intention. And hither also that other Head, κατὰ συλλογισμὸν, about Reasoning, may be referred, where we gather, as Quintilian says, What is not written, from what is written. And what the Lawyers teach us1 of Things done fraudulently.<364>
3. Take for an Example2 an Agreement that such a Place should not be walled round, an Agreement made at a Time, when no other Fortifications were in use, that a Place ought no more to be inclosed by Ramparts or Piles of Earth, if it appear that the only Reason, why Walls were prohibited, was to prevent its being fortified. Another Instance that is often brought, is of a Man, who supposing his Wife to be with Child at his Decease, disposes of his Estate to such a one, in case that posthumous Child should die, which Clause may be extended also to signify, or in case no such Child should be born, for it is plain, that the Reason why he did not absolutely make him his Heir, was because he thought he might have a Child of his own to inherit; and this is what we meet with not only among the Lawyers, but also3 in Cicero, and Valerius Maximus.4
4. Cicero in his Oration for Caecina argues this Matter thus. What? Is this sufficiently provided for by the Letter? No. Upon what then do we proceed? The Design; which if it could be apprehended without Words, we should not use any Words, but because that cannot be, Words were therefore found out, not to hinder the Effect of the Will, but to declare the Intention. And a little after in the same Oration he says, that5Where there is manifestly one and the same Reason of Equity, that is, where the Case agrees with the Reason which was the only Motive of him who speaks, the same Rule ought to be established. So likewise the Interdict, From whence you shall have ejected me by Force of Arms, takes Place also against all manner of Violence, which affects our Life and Person, because such an Attempt, says he, is generally made by Force of Arms; but if by any other Means I am exposed to the same Danger, the Law allows me the same Right. Quintilian the Father brings this Example in one of his Declamations, Murder6seems to imply the shedding of Blood by the Sword, but if a Man be killed by any other Means, we yet appeal to the same Law; for if a Man fall among Thieves, or be thrown into the Water; or tumbled headlong from a high Precipice, his Death shall be revenged by the same Law, as it would have been had he been killed with a Sword. The same Argument is used by Isaeus7 in the Affair of Pyrrhus’s Estate, where because by the Law of Athens a Will could not be made without the Daughter’s Consent, he infers, that no more could an Adoption without her Consent.<365>
XXI.Where also of executing an Order in some other Manner than what was prescribed:XXI. And from hence1 that eminent Question in Gellius may easily be answered, about an Order or Commission; whether it may be executed, tho’ not by the very same Method, yet by some other equally profitable, or perhaps more advantageous than that which was prescribed: which may be done indeed if it be certain, that what was so prescribed was not prescribed under any precise Form,2 but with some more general View that may be obtained as well some other Way; as is answered by Scaevola, when he said, that he who has an Order to be Bail and Security for another Person, may give an Order to the Creditor to pay that Person the Money.3 But if that does not sufficiently appear, we had much better observe what Gellius alledges there,4 that we quite set aside the Authority of him, who gives us our Commission, if instead of doing what we were ordered, punctually and with due Regularity we intermix our own Prudence, a Prudence that he never desired of us.
XXII.Or it restrains the Sense, and that either from some Original Defect in the Will, which is discovered by the Absurdity of it.XXII. The Interpretation that restrains the import of the Words promising, is taken either from an Original Defect in the Will of the Speaker, or from some Accident falling out inconsistent with his Design.1 An Original Defect in the Will is discovered, either from the Absurdity which would otherwise evidently follow, or upon failure of the Reason2 which alone did fully and efficaciously move the Will, or from a Defect of the Matter. The first is grounded upon this, that no Man is to be supposed to intend Things that are absurd.
XXIII.Or from the ceasing of the Motive:XXIII. The second is grounded on this, that what is contained in the Promise, where such a particular Reason is added or plainly implied, is not considered simply in itself, but as it falls under that Reason.
XXIV.Or from a Defect in the Matter.XXIV. The third on this, that the Matter in hand is always presumed to be in the Mind and Thoughts of the Speaker, tho’ his Words seem to admit a larger Sense.<366> This Way of Interpretation too is placed by the Rhetoricians, under the Head, περὶῥητον̂ καὶ διανόιας, concerning the Letter and the Design, and is intitled, when the same Meaning is not always expressed.1
XXV.An Observation on the Conjectures last mentioned.XXV. 1. But we must observe in Relation to the Reason or Motive of the Will, that under it may be comprehended some Things not actually in Being, but only in a Moral Possibility of existing, and when this happens, no Restriction is to be allowed: So should it be stipulated, that no Army or Fleet should be brought to such a Place, none ought to be brought thither, tho’ there be no Intention thereby to do any Harm, because in that Agreement, not so much any certain Damage, as all Dangers and In conveniences what soever are respected.
2. ’Tis also a very usual Inquiry, whether Promises are to be understood with this tacit Condition, If Things continue in the same Posture, they are now in; that is what is not to be granted, unless it plainly appears, that that present Posture of Things was included in that one only Reason we are talking of; and we frequently read in Histories of Embassadors, who understanding that there was so great a Turn in Affairs, as would render the whole Matter and Reason of their Embassy void, have returned Home, without opening their Commission at all.
XXVI.Or when some Accident happens inconsistent with the Speaker’s Design; as when the Thing is unlawful.XXVI. 1. The Masters of the Art of Speaking, when an Accident is inconsistent with the Design and Intention, refer this also to the same Head, περὶ ῥητον̂ καὶ διανόιας; and this Inconsistency is of two Sorts, for the Will is discovered, either by natural Reason, or from some Sign of the Will. Aristotle, who has very accurately handled this Part, thinks that, in order to make a Discovery from natural Reason, the Understanding ought to be endued with good Sense, or the Knowledge of what is right and just (a Virtue peculiar to it) and the Will with Equity, which he very wisely defines, A Correction of that1wherein the Law, by its being too general, is defective; which may also be applied to Testaments and Contracts in their respective Way. For since it is impossible to foresee and specify every Accident, there is a Necessity for reserving the Liberty of exempting such Cases, as the Speaker would, were he present, himself exempt; but this must not be done without Abundance of Circumspection; for that would be to make one’s self Sovereign Arbitrator of another Man’s Act, and therefore is not to be allowed, but when there are sufficient and convincing Tokens for it.
2. One infallible Token that there ought to be such an Exemption is, when to adhere precisely to the Letter would be unlawful, that is, would be repugnant to the Laws of GOD or Nature. For such Things having no Power to oblige, are necessarily to be excepted: There are some Things (says Quintilian the Father)2that are naturally exempted, tho’ they are no ways comprised in the Sense of the Law. Thus he who has promised to restore a Sword, that was left him, ought not, if the Person be mad, to restore it, lest by so doing he endanger himself or some other Innocent Persons; nor are we to deliver a Thing to him, who deposited it with us, if the right Owner demand it. I approve (says Tryphoninus) of that Justice that gives to every Man his own, but so as not to take from him, who has a better Claim to it.3 The Reason is, because (as we observed elsewhere) such is the Force of Property, that it is a manifest Injustice, not to return a Thing to the right Owner, whenever we know who that is.
XXVII.Or too Burthensome, all Circumstances considered.XXVII. 1. Another Token of Restriction shall be this; when to stick close to the Letter, is not absolutely, and of itself unlawful; but when, upon considering the Thing with Candour and Impartiality, it appears too grievous and burthensome. And this, either in Respect of the Condition of human Nature absolutely considered, or in Regard to the Person and Thing in Question, compared with the very End and Design of the Engagement. Thus a Man who lends a Thing for some certain Time may demand it before that Time, if he happens to be very much in Want of it himself, because by the Nature of such a beneficial Act no<367> Man can be presumed willing to serve his Friend to his own extreme Prejudice. So he who has promised an Ally the Assistance of his Troops shall be excused, if he be so far engaged in War at Home, as to have Occasion for them himself: And thus too1 a Grant of Exemption from Taxes and Tribute must be understood of common yearly Taxes only, and not of those extraordinary Subsidies which the pressing Necessity of Affairs may require, and which the Publick cannot be without.
2. From hence it appears, that Cicero was too loose in saying, That such Promises are not to be kept as are of no Advantage to the Persons they are made to; nor if they do you more Harm than they do them Kindness.2 For it is not for the Promiser to judge whether a Thing be useful or not to the Person he has promised it, unless it be in a case of Madness, as we have observed before; nor is every Inconvenience to the Person promising sufficient to release him from his Promise; but it must be3 such a one, as even from the very Nature of the Act, must be believed to be excepted; so he who has engaged to work so many Days for his Neighbour, shall not be obliged to it, if his Father or Son be taken dangerously ill: And this is what Cicero has excellently touched upon, when he says, If you have given your Word to any one, that you will instantly appear in Court, and there manage his Cause for him, and in the mean while your Son falls dangerously Ill, it would be no Breach of Duty in you not to perform what you promised.4
3. And it is in this Sense, but we must not stretch it any farther, that we are to take5 what we read in Seneca, Then shall I break my Word, then shall I be justly charged with Levity, if, when all Things continue in the Posture they were in at the Time of my Promise, I do not perform it. For if there be any Alteration in the Circumstances of the Affair, it gives me a Liberty to determine anew, and discharges me from my former Obligation. I promised to be your Council; but afterwards I find that your Cause tends to the Prejudice of my Father. I promised to take a Journey with you; but they talk that the Roads are pestered with Highwaymen. I was just a coming to serve you, but my Child is fallen Ill, or my Wife’s brought to Bed, and so I am detained at Home. All Things ought to be in the very same State and Condition they were in when I promised you, if you would oblige me to keep my Word. All Things, I mean, according to the Nature of the Act in Question, as we just now explained it.
XXVIII.And from other Signs; as when the Parts of an Act clash and interfere.XXVIII. We have said there may be some other Signs of the Will, from whence it may certainly be collected, that such and such a Case ought to be excepted. Among these Signs there is none more convincing, than when we find that the Words in another Place, tho’ they are not directly opposite (for that would be the ἀντινομία or Contradiction we mentioned before) do yet by some unexpected Turn of Things happen to clash and interfere in the present Conjuncture: This the Greek Rhetoricians call τη̂ν ἐκ περιστάσεως μάχην,1circumstantial Disagreements.<368>
XXIX.What Rules are in such a Case to be observed.XXIX. 1.1Cicero from some antient Authors has, upon the Subject of this Dispute and Difficulty, laid down several Rules to know which Clause ought to prevail, and have the Preference, when the clashing and contrariety is by Accident: As these Rules are by no Means to be slighted, so neither do they seem to me to be ranged and methodized as they ought. We shall dispose them in the following Manner.2 1. That which is only permitted must give place to that which is commanded; for he who permits a Thing seems to permit it only in case no other Obstacle intervene than what is then thought of; and therefore as the Author to Herennius says, An Order exceeds a Leave. 2. What is to be done at a certain and prefixed Time, must be preferred to what may be done at any Time: Whence it follows, that generally a Contract which forbids is of greater Force than that which commands, because what forbids binds at all Times, but so does not what commands; unless it be either when the Time is exprest, or that the Command includes some tacit Prohibition. 3. In Covenants which are in the Respects before-mentioned equal; that which is most particular, and comes nearest to the Matter in hand, must take place.3 For Particulars are commonly of more Efficacy than Generals. 4. The Prohibition which has a Penalty annexed, is to be preferred before that which has none, and that which has a greater before that which has a less.4 5. What has either more honourable, or more advantageous Motives shall carry it. And in the last Place, What is last spoken ought to be most regarded.5 <369>
2. And here too we should repeat what was advanced above, that Agreements sworn to must be understood in their most usual Propriety and Meaning, and that all tacit Restrictions, and such Exceptions as are not absolutely necessary from the Nature of the Thing, must be entirely excluded. And therefore if by Accident two Covenants, one upon Oath, the other not, clash and interfere,6 that upon Oath shall be preferred.7
XXX.That upon a Scruple a Writing is not essential to the Validity of a Contract.XXX. ’Tis also a Question, whether in a doubtful Case a Contract ought to be accounted perfect before the Writings are engrossed and delivered. For this Muraena alledged against the Agreements made between Sylla and Mithridates.1 To me it is plain, that unless it be otherwise agreed on,2 the Writings are to be deemed as the Memorial only of the Contract, and not as any Part of the Substance of it. For if otherwise, it is customary to express it as in the Truce with Nabis: From the Day that these Articles when copied over are delivered to Nabis.3
XXXI.That the Contracts of Kings are not to be interpreted by the Roman Law.XXXI. But I cannot allow their Opinion, who hold that the Contracts of Kings and States are to be interpreted, as much as possible, by the Roman Law, unless it appear, that among some People that Civil Law has, in such Things as concern the Right of Nations, been received even for the Law of Nations, which is not to be presumed without very good Grounds.
XXXII.Whose Words are most to be observed, whether his who offers a Condition or his who accepts it; this explained by a Distinction.XXXII. As to what Plutarch in his Symposiacs1 proposes, Whether we are to regard his Words who offers a Condition, or his who accepts it, most; for my Part, I think, that since he, who accepts it, is in this Case the Promiser, his Words, if they be absolute and without Reserve, are what give the Form to the Agreement. But if they are only affirmative with respect to the others Words, then according to the Nature of relative Terms, his, who offers the Condition, shall be looked upon as repeated in the Promise which the Accepter makes. As for the rest, it is certain, that before the Condition is accepted, he who offered it, is no ways obliged; because there is yet no Right acquired, as is evident from what we said before in Relation to a Promise. And this offering of Conditions is still less than a Promise.
[1 ]De Offic. Lib. I. Cap. XIII. These Words probably are not Cicero’s Words; for neither they, nor some that go before them, are to be found in most Manuscripts, nor in the oldest printed Editions.
[2. ]Neither this Passage, nor the Sequel of the Oration from which it is taken, contains any Thing that gives Reason to think the Orator speaks of the Manner of explaining Agreements. He supposes the Sense of them clear, and on that Foot considers the Obligation of standing to them, as acknowledged by all Nations.
[3. ]Lib. I. Cap. XXIV. Num. 7.
[4. ]The Hebrews, upon the thirtieth of Numbers, observe, that Vows are to be interpreted as they are commonly taken. Grotius.
[5. ]Pufendorf has treated on this subject, B. V. Chap. XII. where he only explains and ratifies our Author’s Thoughts; and the Notes are of Use incorrecting them both.
[1 ]It is very well remarked by Procopius, Vandal. I. where he treats of the Word Confederates, that Τον̂ χρόνου τὰς προσηγορίας, &c. Time does not mind to keep up the same Denominations that were at first imposed; but even Things themselves are turned and altered just as People please, without any Regard to what they were formerly called. Grotius.
[2. ]Polybius, Lib. XII. just as the Boeotians, who promising to restore a City, did restore it, not standing, but ruined and demolished. Thucydides, V. And as Sultan Mahomet, who having taken Euboea, cut a Person asunder in the Middle, whose Head he had promised should be safe. Grotius.
[3. ]See, for Example, Lib. II. Cap. VI. and Lib. VII. Cap. XXXIV.
[4. ]De Offic. Lib. III. Cap. XXXII.
[1 ]St. Augustin, in Rhetoric. As Artizans and Mathematicians, as well as Philosophers, give Names to several new Things; we must understand these Names, not so much from the vulgar Acceptation of the Words, as in Regard to the Nature and Circumstance of the Precept. Grotius.
[2. ]Cicero, De Inventione, Lib. I. Cap. VIII. and Lib. II. Cap. XVII. where it is termed Constitutio definitiva.Quintilian, Institut. Orat. Lib. VII. Cap. III. calls it Finitio.
[3. ]Paradox VI.
[4. ]Our Author certainly had his Eye on that Passage of B. III. Chap. LXXII. where the Historian says, that the compleat Roman Army, when the two Consuls were obliged to join their Troops, was composed of 16000 Roman Foot, and 20000 Foot of the Allies. But besides those they had Horse, as appears from what follows. See Casaubon’s Note on Lib. I. Cap. XVI. p. 21.
[5. ]Digest. Lib. III. Tit. II. De his qui notantur Infamiâ. Leg. II. § 1. See Mr. Noodt’s commentary on that Title, p. 114.
[6. ]De re militari, Lib. III. Cap. I.
[7. ]In the first Edition of this Work the Author quotes Lib. XXV. the Passage occurs Cap. VI. Num. 14. But the Remains of the Army, after the Defeat at Cannae, consisted only of 4000 Men, both Horse and Foot; as the same Historian had said, Lib. XXII. Cap. LIV. Num. 1.
[8. ]Servius, upon the first Aeneid, Arces, (Forts) are so called from arceo, to repel, because an Enemy is repulsed from thence, that is, hindered and kept back. Grotius.
[1 ]See Hermogenes, Partit. Orat. Sect. IV. and XIV. Quintilian, Instit. Orat. Lib. VII. Cap. IX. and the Author of the Rhetoric, addressed to Herennius, Lib. I. Cap. XII.
[2. ]See Hermogenes, Partit. Orat. Sect. XII. Quintilian, Instit. Orat. Lib. VII. Cap. VII.
[3. ]See Hermogenes, Partit. Orat. Sect. XI. Cicero, De Inventione, Lib. II. Cap. XLII. and the Author of the Rhetoric, addressed to Herennius, Lib. I. Cap. XI. as also Quintilian, Instit. Orat. Lib. VII. Cap. VI.
[1 ]Tertullian, De pudicitia. An Expression (Sermo) must be understood according to the Nature of the Subject spoken of. He has the same in his Book De Resurrectione Carnis.Grotius.
[2. ]See an Example of a Quibble made in such a Case, in the Chapter of Pufendorf, which answers to this, § 7.
[3. ]Our Author had here quoted in his Margin, a Law which says, that “If, by Reason of a barren Year, a Proprietor of a Farm abate some Part of his Rent, making Use of the Word Donation, it is a Sort of Forbearance, and not properly a Donation.” Digest. Lib. XIX. Tit. II. Locati Conducti, Leg. XV. § 5. The Lawyer’s Meaning is, that tho’ the Proprietor has abated some Part of his Rent, on the Account here specified; if the following Years prove plentiful, he has still a Right to demand that whole Year’s Rent, as is evident from the Words immediately preceding. The Declaration which he made, of being willing to abate of the Rent, was not according to the Roman Lawyers, an absolute Cession, or a pure and simple Donation, but a Sort of Forbearance; by which he consents not to exact the Whole or Part of the Rent of that bad Year; in Case that the uncertain Income of other Years is not sufficient to indemnify the Farmer for the Loss he has sustained. So that the Word Give ought thus to be understood, agreeably to the Nature of the Thing, and the Intention of the Person speaking. See Cujas, Observat. Lib. XX. Cap. IV. and Anthony Faure, Rational. Tom. V. p. 560, 561. But, to judge of the Matter by the Law of Nature alone, this Decision is not sufficiently grounded, for forming a general Rule, which admits of no Exception. On the contrary, I should think that if a Proprietor abates his Tenant some Part of his Rent, in Consideration of the Barrenness of the present Year, without adding any Thing insinuating that this is done only conditionally, he is not supposed to have reserved to himself any Right of demanding what he has abated, how great Plenty soever the following Years may produce. It is an Act of Generosity, and ought naturally to be understood thus; because the Reserve in Question makes a great Diminution in the Value of it. The Farmer therefore has no Reason to suppose it implied; it was the Landlord’s Business to explain himself. This is more particularly reasonable, when he made Use of the Word Giving. If the Roman Lawyers have given a different Decision of the Case, they have proceeded on refined Principles, which they have confounded with the Maxims of natural Equity, and the Rules of a good Interpretation. Besides, the Barrenness here mentioned, ought, in my Opinion, to be understood according to the Distinction which I have made, Chap. XII. § 18. Note 4.
[4. ]See Thucydides, Lib. II. Cap. V. VI. Edit. Oxon.
[5. ]The Fact is related by Frontin; as I find it also quoted in Obrecht’s Notes. Stratagemat. Lib. IV. Cap. VII. num. 17.
[6. ]See Diodorus of Sicily, Lib. XVII. Cap. LXXXIV. Polyaenus, Stratag. Lib. IV. Cap. III. num. 20. and Plutarch, Vit. Alex. all which Authors the learned Gronovius quotes in this place.
[7. ]Valerius Maximus ascribes this to Q. Fabius Labeo, Lib. VII. Cap. III. § 4. But, as it has been already observed, Livy, Lib. XXXVIII. Cap. XXXIX. relates the Thing in a different Manner.
[1 ]These are the very Terms of a Law, quoted by our Author in his Margin. Digest. Lib. I. Tit. III. De Legibus, &c. Leg. XIX. See Mr. Noodt’s Commentary on the first Part of the Digest, p. 23. col. 1.
[2. ]Our Author here mistakes the Person. Brasidas was General of the Lacedemonians; nor doth he say this to the Boeotians. They are the Words of a Herald at Arms, sent to them by the Athenians, who had promised to quit their Territories. See Thucyd. Lib. IV. Cap. XCVIII. Edit. Oxon.
[1 ]Our Author’s Expression is, Conjuncta sunt aut origine aut etiam loco.
[2. ]St. Austin against Adimantius, Chap. XIV. excellently well observes, that they pick and cull out little scraps of Scripture to impose upon the Ignorant, without taking together what goes before, and what follows, which would let them into the Meaning and Design of the Writer.Grotius.
[3. ]Iliad. Lib. III. ver. 92, 93.
[4. ]Agamemnon explains this of killing his Man, ver. 281. thus Priam understands it, ver. 309.
[5. ]Symposiac. Quaest. Lib. IX. Quest. XIII. p. 743. Edit. Wech.
[1 ]Cicero in the behalf of A. Caecina: There is no great Difference in the Reason of the Thing, but only in the Manner of it, whether I am dispossessed by your Agent, he who is the stated and universal Agent of every Body, who is out of Italy and Abroad on the Government’s Account, a Sort of Lord and Master, that is, one who manages and acts uncontrolably in Right of some other; or by your Tenant, or Neighbour, or Client, or Freeman, or any other Person whatever, who has done me this Injury and Disservice by your Order, and in your Name.Grotius.
[2. ]Our Author seems to have had in View a scholastic Lawyer of Middlebourg, whom he frequently quotes in this Chapter. It is Nicholas Everhard, who expresly says, The Reason of the Law and the Intention of the Law, seem to be the same, p. 382. But, immediately after, he says, The Intention of the Law is gathered from the Reason of the Law.
[3. ]And consequently what agrees with one, may not agree with another; and, on the contrary, what seems to clash with one may be conformable to another.
[4. ]See what I have said above, on Chap. XI. of this Book, § 21. Note 1.
[5. ]Digest, Lib. XXXIX. Tit. L. De Donationibus, Leg. I. § 1. The Words are these: But when we say that, if the Bridegroom make a Present to the Bride, with this Intention, that, a Marriage ensuing, it may be taken away, it may be demanded; we say nothing contrary to what is before advanced: But we grant such a Donation was made between those Persons, as may become void conditionally. This Instance seems misplaced; for it relates to tacit Exceptions implied in a Promise, in Consequence of the manifest Intention of the Promiser; not to the Explanation of the Words of the Promise. Here the Sense is perfectly clear, and no Ambiguity in the Word Donation. But the Donation is void, because it was made only on Supposition of a Marriage, which doth not ensue.
[1 ]See the Chapter of Pufendorf, which answers to this, § 11. Notes 1, 2. and for the following Example, Note 3.
[2. ]Deportati. Such as were banished for Life into an Island, so that they forfeited all the Rights of a Citizen, and their Estates were confiscated. In other Respects, they enjoyed their Freedom, and all the Advantages allowed by the Law of Nature and Nations. This was termed minor or media capitis diminutio. Much more were those who lost their Liberty and were condemned to work in the Mines or Quarries (which was called Maxima capitis diminutio) considered as dead. See Digest, Lib. XVII. Tit. II. Pro socio, Leg. LXIII. § 10. as also Lib. XXXVII. Tit. IV. De bonorum possessione contra tabulas, Leg. I. § 8.
[3. ]See Guicciardini, Lib. XVI. where there is a Discourse about some Agreements of Charles V. relating to the Dutchy of Milan.Grotius.
[1 ]I do not retract what I have advanced, either after others, or of my own Head, in the Notes on § 12, &c. of the Chapter in Pufendorf, which answers to this, concerning the Want of Solidity and Usefulness in the Distinction here made by our Author. In Order to clear him however of some Part of the Criticism there made, I must say, that he doth not seem to have applied his Distinction equally to Promises and to Laws, as the other Writer, who borrowed it of him, doth. He does indeed, in this Chapter, sometimes produce Instances taken from the Laws; but this is done but seldom; and not so as to give us Reason to suppose he pretends that all the Rules he lays down may be applied to the Explication of the Laws; since his main Design is only to shew the Manner of interpreting Agreements and Promises; in short, all voluntary Engagements. As to the Substance of the Question, I shall at present only add some Reflections, occasioned by what I have lately observed in a new Edition of the Abridgment of Pufendorf, De Officio Hominis & Civis, printed at Glasgow in 1718. under the Direction of Mr. Carmichael, Professor of Philosophy in that University. That able Man, who has added a Volume of Notes and Supplements, larger than that of the Text, says, in his Remarks on B. I. Chap. XVII. That the Distinction of Favourable and Odious, which I have rejected after others, is founded in the very Nature of Things; some of them being more desirable than others; or rather, Things having different Faces, so that according as they are viewed, some of them ought to be considered as Objects of our Desires, and others as Objects of our Aversion. This, says he, is dictated by common Sense; so that it is in vain to seek for fixed Definitions of the Favourable and the Odious. It is not less certain, that this Distinction ought to be allowed some Weight in the Explication of a doubtful Speech; so that, as far as the Use of Terms and other Circumstances permit, it is conjectured that the Intention of the Person speaking was such or such, according as the Question turns on something favourable or odious. To this I answer, First, That not one of those, who have rejected the Distinction under Consideration, ever thought of denying that some Things are more desirable than others; but the Question is, whether that Quality can be of service here for settling sure Rules of Interpretation. Now I am not yet convinced that it can. Secondly, One and the same Thing may, indeed, be considered as Favourable or Odious in that Sense, according to the Disposition of the Person, whose Words are to be explained. Let us, for Example, suppose a Donation, which, according to the Principles of the Partisans of the Distinction before us, belongs to the Class of odious Things. I say, if we consider it as an Act burthensome to one of the Parties only, it will be a Thing but little desirable, or even such as many are averse to. But if you view it as an Effect of good Will or Friendship, which it must be acknowledged is sometimes the Motive for giving; in this Regard it will be a very desirable Thing: Here will be Room for presuming that the more the Donor bestows, the more he is pleased; so that the Signification of the Terms is to be extended by this latter Reason, and contracted by the former. But how shall this be reconciled? Thirdly, It is owned that there often is a Mixture of the favourable and the odious; which renders the Application of the Distinction still more impracticable. Fourthly, No Notice is taken of the Reasons I have employed for shewing that in all the Examples produced, the Interpretation may be made without the Assistance of this Distinction; which therefore is entirely useless, even though it had a clear and fixt Foundation. I hope then that it will not be taken amiss, if I leave it here, till it is so established that we may know how to make Use of it.
[2. ]Quae communem spectant utilitatem. The Terms are ambiguous, and may signify the common Advantage of the Parties. But it appears from the two Instances, alledged by our Author immediately after, and from some which occur elsewhere (B. III. Chap. XX. § 21.) that he designed to speak of the Advantage of human Society in general.
[3. ]That is, something burthensome to which a Man has subjected himself, in Case that certain Things are done or not done; as when he engages to pay a Sum of Money, or to demand no Part of what he otherwise had a Right to, &c.
[1 ]See Pufendorf, B. V. Chap. II. § 8.
[2. ]The Author designs to speak of what he before called, Jura multis populis seorsim communia. Laws common to several Nations separately. I believe his Meaning here is this. If two Persons of different Nations treat together concerning Things, in Regard to which the Civil Laws of the two Countries are the same; and the Agreement is made either by Letters, or in a Place which has no Proprietor, (for when the Affair is concluded in the Country of either of the contracting Parties; we are to judge of the Affair by the Civil Laws of that Country, tho’ they differ from those of the other, as has been said above, Chap. XI. of this Book. § 5. num. 2, 3.) In that Case I say, each of the Parties is and ought to be supposed to follow the common Custom of the two Countries; unless they have expressly declared they would treat on a different Foot.
[1 ]That is what he before called Things of a mixt or middle Nature, which have something of the Favourable and something of the Odious, but so that the former is predominant. It would be very difficult to specify and compare the different Degrees of each; from which single Consideration we may infer how useless this Distinction would be, even supposing it founded in the Nature of Things.
[2. ]See Note 3. on § 13. of the Chapter in Pufendorf, which I have already quoted several Times.
[3. ]Consult Note 5. on the same Place.
[4. ]See an Instance of this in L. cum virum. C. de Fidei commissis.Grotius.
[5. ]See Note 7. on § 13. of the Chapter in Pufendorf, which answers to this.
[1 ]See Pufendorf, B. VIII. Chap. IX. § 10.
[2. ]Polybius, Lib. III. Chap. XXVII.
[3. ]Lib. XXI. Cap. XIX. num. 4, 5.
[4. ]Which Clause was added in the Peloponnesian Treaty of Peace made between the Lacedemonians and the Athenians, Thuc. Lib. V. Grotius.
[5. ]But, says Mr. Buddeus, in his Jurisprud. Histor Specimen, § 100. It was on the other Hand, a favourable Matter to the Romans and to the Saguntines, that the Town should be preserved, or that after it was demolished, Precautions might be taken against what the Roman Commonwealth had to fear on that Account. For my Part, without any Regard to the uncertain Distinction of the Favourable and the Odious, I say, no Presumption is hastily to be formed of a Sense, tending to justify any Thing, from which the Violation of a Treaty may ensue; but then, as there is no Room for thinking that the Parties desired the Treaty should hold good, whatever might happen, it should be considered whether, by following a certain Sense, some Reason may not be found why they probably would not rather chuse that the League should be broken, or be in danger of being so, than be secured from a Rupture by the Favour of another Sense. But whoever enters into an Alliance, knows, without Doubt, that it may easily become as advantageous, or more advantageous, and sometimes even necessary, to ally himself with others, without any Prejudice to the Engagement, by which he has deprived himself of a Power to do or not do certain Things. So that he is supposed to reserve to himself a Liberty of making such Alliances, provided he has not expressly renounced that Liberty; and consequently, there is good Reason to believe that when it is reciprocally stipulated, that neither of the two Nations shall molest the Allies of the other, each of the contracting Parties understands that Clause of its future Allies, as well as of the present. See what I have said on the preceding Chapter, § 13. Note 3.
[6. ]No such Thing. But as the Carthaginians might, without breaking through their Engagements, take Satisfaction for the Injury done them by some of the Allies of the Romans, and even of those who were so at the Time of the Treaty; the Romans, on the other Hand, might without any Violation of the Alliance, undertake the Defence of their new Allies, when they thought them unjustly attacked. So that the whole Question will be whether the War was just or not. The Carthaginians, by attacking Saguntum, violated the Article of the Treaty under Consideration, supposing that Town had done them no Injury. But if, on the contrary, it had given them just Reason for a War, the Infraction of the Treaty lay on the Side of the Romans, who protected it.
[7. ]The Romans to the Samnites who had a mind to invade the Sidicines, and asked the Romans leave to do it, made this Answer, There was nothing stipulated that could hinder the Samnites from the Privilege of making Peace or War.Livy, Lib. VIII. And so it is a Clause in the Treaty with Antiochus, If any of the Roman Allies shall take upon them to attack Antiochus, let him be at Liberty to repel the Violence; provided that he does not by the Right of War seize upon any of their Cities, nor contract any Alliance with them, Livy XXXVIII. Polybius in exc. legat. XXXV. Grotius.
[8. ]Polybius, Lib. III. Cap. XXV.
[9. ]Procopius, Persic. II. ἔϕασκέ τε ὡς ἀυτὸς οὐ λύει, &c. He asserted that he had no Ways infringed any Articles that were between the Persians and the Romans, because neither of them had inserted him in them.Grotius.
[10. ]It seems to me to have been an Infraction of the Treaty. See what I have said in Notes 5 and 6. on this Paragraph.
[11. ]Lib. III. Cap. XXVI.
[12. ]Lib. I. Cap. XXXV. Edit. Oxon.
[13. ]Thus after the Times mentioned there, the Corcyreans decreed, Ἀθηναίοις μεν, &c. That they would indeed, according to their Agreement, assist the Athenians with their Troops, and yet still be Friends to the Peloponnesians. Grotius.
[14. ]Lib. III. Cap. VII. num. 14, 15.
[1 ]That he (Philip) should not wage War out of the Territories of Macedonia, without the Consent of the Senate.Livy, Lib. XXXIII. Cap. XXX. num. 6. See also Lib. XLII. Cap. XXV.
[2. ]Or rather, because the Right of Self-Defence is a Natural Right, of which no Man can be supposed to divest himself by any Agreement.
[1 ]Diodorus Siculus, in his 27th excerpt. legat. relates this Matter thus, νόμους, χώραν, ἱερὰ, τάϕους, ἐλευθερίαν, that their Laws, their Country, their Religion, their Sepulchres, and their Liberty, should be continued to them. Grotius.
[2. ]When we speak of a City, tho’ it is considered as a Body of People, we always suppose the Place and Buildings as the Habitation of that People. This is the natural Sense which immediately offers itself to every one, and from which we therefore ought never to depart, without an express Declaration, or plain Reasons, taken from such Circumstances as necessarily oblige us to confine ourselves to the idea of a Multitude of Persons united by the Bonds of civil Society, but considered as having no fixt Dwellings. But this cannot be the Case here; whatever Mr. Cocceius may say, in his Autonomia Juris Gentium, Cap. XV. § 14, 15. All he there advances may be reduced to this: That the Carthaginians were become dependent on the Romans, having preserved no more than the Liberty of governing themselves by their own Laws; and that a People may remain entirely free, tho’ they have no City, as a Family tho’ in Possession of no House. But all this doth not destroy our Author’s Reasons, much less the Reflection I have just now made, which is drawn from the ordinary Use of Terms. For how dependent soever the Carthaginians might be, the Question here is, whether, without any Prejudice to Honesty, the Treaty can be so explained as to understand by Carthage, the Carthaginians, independently of the City, in which they were settled. Now, can it be said that, if at the Time of the Treaty, it had been asked what was meant by the Word Carthage, the two Parties would have agreed on that Sense of it? A Man must be very obstinate, who pretends to justify a Perfidy so manifest, as that of the Romans in the Case before us. And yet the Author, who approves of it, makes no Difficulty of representing the contrary Opinion of Grotius and Pufendorf, as the Result of great Ignorance of the Law of Nations; tho’ in this, as well as other Places, he himself offers only frivolous Reasons, and most commonly censures our Author without understanding him.
[3. ]De Bell. Punic. p. 79. Edit. Amst. (48. H. Steph.)
[1 ]On this Question, see Pufendorf, Lib. VIII. Cap. IX. § 6, &c.
[2. ]See Chap. IX. of this Book, § 3.
[3. ][[The footnote is wrongly numbered “2” in the original. Digest. Lib. II. Tit. XIV. De Pactis, Leg. VII. § 8. The Roman Lawyers require that, in Cases of Doubt, a Presumption be made that the Agreement is real, and not barely personal. See Mr. Noodt’s excellent treatise, De Pactis & Transact. Cap. IV. and Mr. Schulting, on the title De Pactis, § 15.]]
[4. ]Livy, Lib. XLII. ’Tis presumed that a Regard is had to the Prudence and Honesty of the Person one is treating with. See Paruta, Lib. V. and VII. Grotius.
[5. ]Livy, Lib. XLII. Cap. XXV. num. 10.
[6. ]As this Distinction is not very certain, it is better to say, with Mr. Thomasius, (Jurisprud. Divin. Lib. III. Cap. VIII. § 27.) That, in Case of a Doubt, all publick Treaties made with a King are to be considered as real; because, in Case of a Doubt, a King is supposed to act as Head of the State, and for the good of the State.
[7. ]Digest. Lib. XVII. Tit. II. Pro Socio, Leg. LII. § 9.
[8. ]See Dionysius Halicarnassensis, Lib. III. Grotius.
[9. ]The same Author in his third Book mentions The Apulians and the Latins; and in his fourth, Turnus Herdonius, and the Latins.Ammianus, Lib. XXVI. Sapor King of Persia seized upon Armenia, endeavouring, but unjustly, by Force of Arms, to bring it again under his Jurisdiction; pretending, that after the Decease of Jovian, who was the Person he had concluded the League and Peace with, nothing ought to hinder him from recovering what he could prove belonged to his Ancestors. See such another Instance of Justinian’s Treaty with the Saracens in Menander Protector. Add to this what the Switzers plead after the Death of Henry III. in Thuanus, Lib. CLVII. Anno MDLXXXIX. See also a remarkable Passage in Camden at the Year MDLXXII. where he speaks of the antient League of the French with the Scots.Grotius.
[10. ]Lib. I. Cap. VII. num. 2. Where the Historian tells us those Cities thought their State or Condition changed and therefore revolted from Cyrus.Boecler, in a Corollary, at the End of his Dissertation intituled Miles Captivus, Tom. I. Dissert. p. 990. conjectures that by the Tributary Cities, here mentioned, we are to understand conquered Cities, reduced under the Dominion of the Conqueror; which is sometimes the Meaning of that Term; and thus the Question is easily decided. But on that Foot one would think there would have been no Pretext for withdrawing themselves from Cyrus’s Government; at least the Pretext would have been very trifling. Besides, supposing the Word Tributariae, when alone, sometimes implies a true and perfect Submission; of which however no Example is produced; it is more natural in this Place to take it in its ordinary Signification, and according to the Practice of the antient Eastern Kings, who frequently were satisfied with demanding some Tribute of the conquered Cities and Nations, and left them in Possession of the other Branches of their Liberty.
[11. ]See Pufendorf, B. IV. Chap. II. § 17. with the Notes.
[12. ]Lib. III. Cap. XX. num. 5.
[1 ]So Valens would not allow of the Gothick King’s Excuse, who said that he had sent some Auxiliary Troops to Procopius who had usurped the imperial Dignity. Ammianus in his twenty seventh Book calls it a very trifling Excuse. You have the same Story in the Greek Writers, but under the Name of Scythians, for so they called the Goths. So that Justinian denied that he should break the Articles of Alliance made with Gizerick, if he took up Arms against Gelimer, who had deprived Ilderich the rightful King, both of his Crown and his Liberty. See Cardinal Tuschus, pp. upon the Word Tyrannus. Concl. CCCVI. Num 6. Cacheranus, Decis. LXXIX. Num. 35. Grotius.
[2. ]Livy, Lib. XXXIV. Cap. XXXII. num. 1. Boecler, in his dissertation De Actis Civitatis, Tom. I. p. 870, 871. charges our Author with Want of Exactness in this Place, as this was only a Pretext made Use of by the Romans, who had treated with Nabis, as a lawful King. But our Author says nothing tending to approve of the Application of the Maxim to the present Case. It is sufficient for his Purpose that the Person, whose Words he produces, supposes this Maxim as true in itself.
[1 ]See the Chapter in Pufendorf, which answers to this, § 14.
[2. ]See Alberick de Rosato, De Statutis qu. 106, 107. Grotius.
[3. ]Properly speaking, the Business is not here to explain the Word First, or enquire whether it may be applied to one or more. In Affairs of this Sort, it is commonly supposed that only one Person outruns the rest: it being very uncommon for several to reach the Goal at the same Time. So that it may be said in general, that when a Reward is proposed for the Man, who shall do such or such a Thing first, only one Person is thought of who shall be before the rest: The Competition of two or more, who may be equally first in Regard to the rest, is out of the Question. So that the whole Business is to know what would probably have been the Will of the Person, who gives the Prize, had he thought of this Case. In Order to this, it is to be considered whether the Thing in Question can be repeated or not, at the same Time. If it can, as in the Case of running to a certain Place, even tho’ no mention had been made of several Races one after another, it is highly reasonable to believe that the Person, who proposed the Prize for the Race; designed that, if two reached the Place appointed at the same Time, they should start again. This is an almost certain Method for satisfying his Intention: as it is a hundred to one that this Case will not happen twice together. Rewards being most honourable, when fewer deserve them, it is to be presumed that, when a Man, considering a Thing as difficult, designed to reward the Person, who should first perform it, he intended that the Recompence proposed, should, if possible, fall to one Person. And that the rather, as when two Persons reach the Goal at the same Time, this Action renders their Skill or Agility some what doubtful, and gives Reason to suspect one of them has not exerted himself to the utmost of his Power. But, when the Thing, for which the Recompence is to be bestowed, cannot be repeated at the same Time, as in the Case of scaling the Walls of a Town besieged, it should be considered whether the Prize can conveniently be multiplied, or not. If it can be done without laying too heavy a Burthen on the Person who promised it, as when the Prize is a Crown of small Value, or other Things of the like Nature, which are looked on as bare Marks of Honour; there is very good Reason to presume that the Promiser would easily have consented to that Multiplication. But if the Prize cannot be thus conveniently multiplied, the Enquiry should be, whether it is such as may be divided or possessed jointly, or whether it is indivisible. In the former Case, it is presumed that the Intention was that the Competitors should share the Prize equally, as they have equally deserved it. In the latter it was certainly designed that they should then take the only Method left on such Occasions; which is to cast Lots for the Prize, or leave the whole to one of the Parties, on Consideration of some Satisfaction to be made to his Competitor. So that without having Recourse to the Distinction of favourable and odious, the Case before us, and others of the same Sort, may be decided by reasonable Presumptions of the Donor’s Intention. Pufendorf, in the Chapter which answers to this, has handled the Question some what differently from our Author; but not with all the Distinctions, and on the Foundation I have here employed.
[4. ]“Scipio, having praised Lelius, called him to the Assembly and declared, he was very well satisfied that Q. Trebellius, and Sext. Digitius had scaled the Walls together; and that he presented them both with Mural Crowns, in Consideration of their Bravery.” Livy, Lib. XXVI. Cap. XLVIII. Num. 13. This Fact is also related by Zonaras, who took it from Dion. Cassius, Excerpt. Peiresc. p. 602. where the learned De Valois has added what was wanting in the Fragments of the Original Author, from the more perfect Text of the Copist.
[5. ]I know not whence this Fact of Caesar is taken. As to Julian, I believe our Author had his Eye on a Passage of Ammian Marcellinus, which doth not precisely speak of the same Sort of Crowns, nor doth it take notice of any Dispute concerning the disposal of the Prize. The Historian tells us that, after a Battle with the Persians near the Town of Ctesiphon, the Emperor, calling several by their Names, whom he observed to signalize themselves in that Action, gave them Naval, Civic, and Castrensian Crowns, Lib. XXIV. Cap. VI. p. 443. Edit. Vales. Gron. Our Author was induced to suppose the Case here the same as that which happened under Scipio, because the Corona Navalis, and the Corona Castrensis were usually given, the former to him, who first boarded the Enemy; the latter to him who first entered the Enemy’s Camp; as may be seen in Justus Lipsius, De Militiâ Rom. Lib. V. Dialog. LVII. and Charles Pascal, De Coronis, Lib. VII. Cap. III. &c.
[1 ]Seneca in his excerp. controv. VI. 3. has very well observed, that a Circumscription always fobs a Piece of Roguery upon you under the Appearance of Law; what you can discover is lawful; what lies concealed is designed to trick you.Quintilian, Controv. CCCXLIII. For we never run to this Law, (Circumscription he means) but when a just Right is shuffled out by some Knavery or other: You have a Precedent in Pliny’s Natural History, Lib. XVIII. Because by the Law of Licinius Stolo only 500 Acres were allowed to any Man; and he himself was condemned upon his own Law, when he thought by the little shift of putting in his Son for a Share, to get more into his Hands. There is the same Story in Valerius Maximus, VIII. Chap. VI. 3. See another Instance in Tacitus, Annal. XV. of some pretended Adoptions. Another you have in Emanuel Comnenus’s Novel, in the Jus Graeco-Romanum.Grotius.
[2. ]Fuscus Arellius in Seneca’s tenth Contro. Lib. XI. For it was, no doubt, the Intention of their Oaths, that they should not whilst living be separated, when they so particularly took care, that even Death should not divide them.Grotius.
[3. ]De inventione II. Grotius.
[4. ]I am satisfied our Author here confounds the Case under Consideration with one directly contrary to it, related by Cicero and Valerius Maximus, which has been mentioned, Chap. XI. of this Book, § 6. Num. 2. See also Quintilian, Instit. Orat. Lib. VII. Cap. VI. I know no Place in Valerius Maximus, where that Writer speaks of the Will made in Favour of Curius. Nor doth any Thing of this Kind occur, where it ought to be looked for, De ratis Testamentis & insperatis, Lib. VII. Cap. VIII. but in the preceding Chapter, Num. 1. we meet with a Will made by that Father, who believing his Son killed in the War, had appointed other Heirs.
[5. ]So Philo in his treatise De Specialibus legibus, that Adultery is committed with a Woman, who is only betrothed to some Body else, and for this Reason; αλἱ γὰρ ὁμολογίαι τοɩ̂ς γάμοις ἰσοδυναμον̂σι, because a Contract is as binding as a Marriage. So in the Mosaick Law under the Name of an Ox every tame Animal is meant; and under the Title of a Pit any Hole or Ditch, Exod. xxi. 28. 35. Chassanaeus, Catalog. Glor. Mundi, Part. V. Consid. XLIX. Grotius.
[6. ]In this Quotation, from Declam. CCCL. our Author reads, Si inciderit in Latrones; if a Man fall among Thieves, Mr. Barbeyrac quotes this Passage according to Obrecht’s Edition, which reads Latrinas. He prefers this reading, because falling among Thieves, does not express a Manner of taking a Man’s Life away different from the Idea conveyed by the Word Caedes.
[7. ]Our Author misapplies this Passage for Want of understanding it right. But we are not to be surprized that the Latin Translator, well known to be none of the most exact, has not expressed the Meaning of it better. The Case is this. The Laws of Athens allowed a Man to dispose of his Estate by Will, as he pleased, if he left no legitimate Male Issue; but with this Restriction, that if he left legitimate Daughters, he could give his Estate only to those who should marry them. Therefore says the Orator, a Father can neither adopt a Man nor leave him his Estate, without giving him his Daughter at the same Time; and consequently if Pyrrhus, having, as is pretended, a legitimate Daughter, had adopted Endius, without marrying his Daughter to him at the same Time, such Adoption would be null, according to the Laws. So that the Argument is not founded on a Necessity of stretching the Law beyond the Sense of the Terms; but on what is clearly implied by the very Sense of those Terms. For they suppose the legitimate Daughters to be natural Heiresses, on Default of Male Issue; except the Father had named a Man for his Heir on Condition he should marry one of his Daughters. Whence it plainly follows, that the Father could adopt no one, without at the same Time giving him one of his Daughters; since the Adoption of a Son implied a Right of Inheritance, exclusive of all other Persons. In this Passage the Words ἐπὶ τάυταις are rendered in illarum arbitrio, at their (the Daughters) Disposal. And ἄνευ τω̂ν θυγατέρων, Insciis filiabus, non consultis, without the Knowledge and Consent of his Daughters. This false Sense is followed by our Author. But what immediately follows is sufficient for discovering the Mistake. For the Orator adds, Ἐι δὲ τὴν θυγατέρα ἐδίδου, but if he has given his Daughter in Marriage, i.e. with his Estate. The late Mr. Perizonius, who, as I have observed since I wrote this Note, occasionally quotes the Passages of Isaeus, in his Dissertationum Trias, Dissert. II. p. 129. has given the true Sense of it in a Manner worthy of his Erudition, but without correcting the Translator’s Mistake, to whom he elsewhere does Justice in general in that Volume, Dissert. I. p. 60, &c.
[1 ]See Pufendorf, B. V. Chap. IV. § 5.
[2. ]Quintilian, Controv. CLVII. Servants do some Things more freely upon a Principle of Honesty and Goodness; and even the Slaves we buy think it some times an Argument of their Fidelity, not to obey us. You have an Instance of this Kind in excerpt. legat. in that Part, which treats how Embassies are to be managed; and in what John, one of the Justinian Captains, did contrary to Belisarius’s Orders, Gothic. II. and IV. Grotius.
[3. ]Digest. Lib. XVII. Tit. I. Mandati vel contra, Leg. LXII. § 1. See, on this Law Anthony Faure’s Rationalia, Tom. V. p. 133.
[4. ]Lib. I. Cap. XIII.
[1 ]This Distinction has been criticised; as I have observed on the Chapter of Pufendorf, which answers to this, § 19. Note 2. But I am now of Opinion that the Author may be justified, by shewing his true Meaning, which I think is this. There are some Cases, which there is good Reason to believe the Person who speaks either did, or at least might foresee them; and yet that he never intended they should be included in the general Terms of the Promise; tho’ he has not expressly excepted them, because he supposed such an Exception clear in itself. This is what he calls an original Defect of the Will. There are other Cases, which could not be foreseen, but are such as if they could have come into the Mind of him, who speaks, he would have excepted them. This is the Accident inconsistent with his Design.
[2. ]We have an Instance of this in a Roman Law, which forbids Patrons, or Masters to make their freed Men swear, they will not marry or beget Children. But, it is added, This is to be understood only of such as are capable of having Children; so that if a Master shall require such an Oath of his freed Man, who is an Eunuch; he shall not be punished by this Law. Digest. XXXVII. Tit. XIV. Leg. VI. § 2. Grotius.
[1 ]See Cicero, De Inventione, Lib. II. Cap. XLII. and Marius Victorinus, in Rhetoric. Ciceron. II. p. 221, 222. Antiq. Rhetor. Edit. Pithaei, Paris 1599.
[1 ]Seneca IV. Controv. XXVII. In the Law, you say, there is nothing excepted. But however many Things which are not expressly excepted, are yet evidently implied to be so; the Letter indeed is narrow, but the Meaning extensive; and some Things are so very plain, as to want no Exception at all.Grotius.
[2. ]Declam. CCCXV.
[3. ]This Law has been already quoted, Chap. X. of this Book, § 1. Num. 5. Note 9.
[1 ]See Rosenthalius, De feudis, Cap. V. Concl. LXXXVI. Num. 2. Heig. Illustrium XVIII. Num. 16. Part I. Cothman, Cons. XI. 32. Clar. § Feudum XXIX. 2. Andrew Knich, De vestitis pactis XI. Cap. V. Num. 20. Hen. Bocer, De collectis.Grotius.
[2. ]De Offic. Lib. I. Cap. X.
[3. ]See Charles Molinaeus, Consuet. Parisiens. Tit. 1. § 2. gl. 4. Num. 3. Ferd. Vasquez, De Succession. Creat. L. N. § 18. Num. 80. Anton. Faber, Rer. in Sabaud. judicat. Lib. IV. Tit. XXX. Zasius, in L. Stipulatio hoc modo, Num. 3. De Verb. Obligat. Add. C. quemadmodum de jurejurando, and Alciat, C. cùm contingat, intitled as before. Grotius.
[4. ]De Officiis, Lib. I. Cap. X.
[5. ]De Benef. Lib. IV. Cap. XXXV. Here is something else of the same Author’s in his thirty ninth Chapter of his fourth Book De beneficiis, I will go sup with him, tho’ the Weather be cold, because I have promised it, but not if it snows. I will go to a Wedding tho’ my Stomach be a little out of order, because I have promised; but not if I have a Fever upon me. I will be Bail for you, because I have promised you, but not if you bid me be Security for I don’t know what, or would bring me in Debt to the Government. There is always, I say, a tacit Exception in all these Cases, I will do such and such a Thing, if I can, if I ought, if Affairs are so and so. Put Matters into the same Posture when you claim my Promise, as they were in when I made it. There is no Fickleness in my falling off, if any Thing new and unexpected has happened. Why are you surprized that I should alter my Resolutions, when the Conditions of my Promise are altered? Make every Thing the same it was before, and I am still the same. We engage to appear in Court on a certain Day: And yet all those who do not appear are not liable to the Penalty. There are some invincible Obstacles that excuse a Non-performance. The English often made use of this Evasion, (see Cambden, Ann. 1595.) both in their Disputes with the Dutch and the Hanse Towns. Grotius.
[1 ]I find in Hermogenes, κατὰ περίστασιν μάχη. Partit. Sect. IV. p. 16. Edit. Genev. 1614. Quintilian calls this, Collisio casu & eventu. Instit. Orat. Lib. VII. Cap. VII. as the learned Gronovius observes on this place.
[1 ]De inventione, Lib. XI. and Marius Victorinus there. Grotius.
[2. ]Quintilian, Declam. CCCLXXIV. The Law which forbids is always more powerful than that which permits.Donatusupon Phormio, Act I. Scen. II. He says very well, commands; for that Law which does only permit a Thing has less Force with it, than that which commands. See Cicero, Verrin. XI. and what Connanus has, Lib. I. Cap. IX. Grotius.
[3. ]See the Commentators, and particularly James Godefroy, on this Rule of the Law: Through the whole Law what is particular takes place of what is general; and that is most regarded, which relates to Particulars. Digest. Lib. L. Tit. XVI. De diversis Regulis Juris, Leg. LXXX.
[4. ]The Reason is, because when we impose a Penalty, we thereby justify a stronger Desire of obliging the Person, on whom we impose it, to do or forbear certain Things, than when we impose none; for in the first Case, in Order to gain our End, we employ a most efficacious Method which we neglect in the other. Pufendorf answers our Author in this Place without Reason, in the last Paragraph of the Chapter so often quoted in this.
[5. ]This Rule is out of its Place. It relates to Cases where there is an absolute and perpetual Contradiction between two Agreements or two Laws, so that one of them must necessarily remain without Force. The Words of Cicero are, Deinde, utra Lex posteriùs lata sit, nam postrema quaeque gravissima est. We are to consider which of the two Laws was made last, for the last is always of most Authority. The Reason of this is given by our Author himself, § 4. Num. 2. But when the Opposition lies only in certain Cases, so that neither of the two Agreements or Laws, though incompatible for a Time, loses any Thing of its Force; the Priority or Posteriority of Time is out of the Question and of no Service for determining which of the two ought to take Place, because there is then no Change of Will. We are to proceed on other Tokens which express a greater Degree of Will; and on that Foot it may easily happen that the Law or Agreement first dated will take Place.
[6. ]Acontiusin Ovid.
[7. ]This is grounded on a false Supposition; as has been already observed on Pufendorf.
[1 ]Appian. Bell. Mithridat. p. 360. Edit. Amst. (214. H. Steph.) See Pufendorf, B. III. Chap. VI. § 16. and B. V. Chap. II. § 6.
[2. ]L. in re, and L. si res gesta. D. de fide instrumentorum, L. pactum quod bona fide, C. de pactis. So Bartolus, Johannes Faber and Salicetus, whose Opinion prevailed in Court against Baldus and Castrensis, expound, C. de fide Instrumentorum, the Law of Contract.Mynsingerus, Decad. X. Cons. XCI. Neostad, De pact. antenuptial. Observ. XVIII. And therefore what Ligniacus produces out of Guicciardin, rer. Italic. Lib. XI. about an Instrument signed by the King, but not yet sealed by him, nor with the Secretary’s Hand to it, carries no great Authority with it, nor is the Matter of Fact sufficiently proved. Grotius.
[3. ]Livy, Lib. XXXIV. Cap. XXXV. Num. 3.
[1 ]The Question is there decided in Favour of the Person who makes the Offer. Sympos. Lib. IX. Quaest. XIII.