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CHAPTER XVII: How Rights and Obligations Cease: How Controversies are to be Decided in Natural Liberty: and the Rules of Interpretation. - Francis Hutcheson, Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy [1747]

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Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy, edited and with an Introduction by Luigi Turco (Indianapolis: Liberty Fund, 2007).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER XVII

How Rights and Obligations Cease: How Controversies are to be Decided in Natural Liberty: and the Rules of Interpretation.

I. Obligations cease by three several ways: by the paying or performing what was due; by remission in favour of the debtor <whether gratuitous or for onerous cause>; and by the failing of the condition.1

Payment may be made either by the debtor himself, or any commissioned by him, or acting in his name and for his behoof; but it must be at the time and place agreed on. Where payment is offered not by appointment of the debtor, nor for his behoof; the creditor is not bound to transfer his right against the debtor to the person thus offering payment, who may have some malitious intention against the debtor. What is here said relates only to the delivery of common goods or money, or performing common labours or services, in which ’tis no matter to the creditor who pays him. The case is otherways in homages of honour, or such labours as are valued on account of singular ingenuity.2 {In these no substitution can be made without the consent of the person to whom they are due.}

In money, or goods only regarded by weights, measures, or quantities [In res fungibiles, or in goods the values of which are reduced to a certain measure]; if two persons be mutually indebted to each other in equal sums, and the days of payment on both sides come, the debts mutually destroy each other: and this is peculiarly called compensation. Nay tho’ the sums are not equal, yet the debts should be deemed abolished as far as the sums concur, and the surplus only to remain due.

To the second way, to wit, of some remission; are reducible all these transactions {or bargains} agreed to for extinguishing disputed claims: as also delegations; by which the debtor with consent of the creditor transfers to him <or to anyone appointed by him> an equivalent debt due to himself: as also <condonationes or releases, explicit or tacit>, the forgiving of debts and accepting any thing in lieu of them; <likewise acceptilations>3 and lastly mutual dissent of the parties; by which the mutual obligations of a bargain are taken away.

3. Under the head of the failure of the condition, is included the perfidy of one party in a bargain; which sets the other free, if he chooses it, rather than to compell the perfidious to performance: as also a change of state; by which all obligations are made void which were plainly founded upon it: as also the expiration of the time; which takes away obligations which were to endure no longer: and lastly death takes away such as only respected the persons, and were not designed to subsist to the heirs of the creditor, or affect the heirs of the debtor: and these points are generally known from the nature of the business, or the terms of the contract.

II. In natural liberty controversies are best decided by friendly conferences of the parties, or the interposal of common friends; or by an absolute compromise or submission to arbiters of approved characters; and this either as to the strict point of right [as perfect right], or as to the equitable and humane part on both sides. Every good man would always choose to make submissions of this later sort{, and not insist upon the strictest point of right}.4

The proper arbiters are persons of wisdom, under no special attachment to either side, and who can gain nothing by the decision of the cause in favour of either party. Such men influenced by no interest or passion, tho’ they be neither wiser nor better men than the parties contending, yet will more easily discern what is just and equitable. The parties are bound to stand to their decision, unless they find evidence of corruption, such as some secret contract with one party; or unless there be such manifest iniquity in the decision as must plainly evidence some fraud or unfairness <as was the case of the Roman arbiters between the inhabitants of Nola and Naples5 >. But if it is only some smaller inequality or mistake in the decision, upon some shew of right, {by which one party thinks he is wronged,} he is notwithstanding bound to submit to the award.

The arbiters should proceed as judges do, to find out the truth by the acknowlegements of the parties, or by signed deeds, or other such documents: and next to cite witnesses, and interrogate them upon oath; regarding always this <rule of Cassianum“cui bono”>,6 whether the witnesses be not engaged by interest on one side; and they should demand two at least to proceed upon. For tho’ the credibility does not at all increase in proportion to the numbers of witnesses, and sometimes the testimony of one wise honest man gives full satisfaction; yet it would be dangerous to proceed upon the testimony of one: as a person of great hypocrisy and art and presence of mind may contrive such a consistent story, that no interrogatories put to him can detect the falshood of it, or make him contradict himself. But when two or more witnesses, are separately examined, without hearing each others testimonies, about all such circumstances as might have been observed by persons really present, (of which a vast multitude may occur to a sagacious judge); if they either frequently contradict each other; or both always remember the same circumstances, and both always pretend to have forgot or overlooked the same circumstances, they give plain evidence of a concerted fraud. [A compleat consistency therefor of two thus examined, gives abundant evidence.]7

III. For discovering the true intent and meaning of promises, contracts, testaments, and written laws, the proper rules of interpretation are often useful. But they belong rather to <the grammatical art, or to> the art of criticism than to morals{; as they are not peculiar to these matters}.8

1. We must still remember that such as profess to contract with others, and use such signs as commonly express contracting, are to be deemed bound, what ever way their mind was then employed: nor otherways could there be any faith in commerce.

2. The sense of common popular words is to be determined by custom, without regard to original meanings or etymologies; unless there appears evidence that they were taken in an unusual sense.

3. Terms of art are to be understood according to the definitions of the artists.

4. Where the different parts of any deed relate to the same thing; the ambiguous or obscure are to be cleared up by the more plain and distinct.

5. If words taken in their simple and unfigured sense import something contradictory and absurd, but not when interpreted as figurative; they are to be deemed figurative.

6. In deeds which convey no right in their prior parts to such as don’t also consent to the subsequent; the subsequent limit the preceeding. This holds in the different parts of testaments, and in different deeds made between the same parties.

7. There are also just conjectures of interpretation to be derived from the subject-matter, the circumstances, effects, or consequents. For that is probably the true interpretation which suits the subject-matter and circumstances, or which involves no absurd consequences.

8. Contracts are best explained from knowing the views of the parties; and laws in like manner from the reason or design of them.

9. We are also to regard whether the matter be of a desirable or favourable nature, or on the contrary undesirable or odious; for accordingly we give a larger or more confined sense to the words.

IV. But where all or any of the contending parties in natural liberty, trusting to their own strength, and each dreading the interest or art of his adversaries in influencing any arbiters they might choose, declines to compromise; there remains no other remedy than that each defender prosecute his right by violence, with what aid he can get from his neighbours: and by this means multitudes must often be involved in great inconveniences and dangers. Now ’tis probable, that in order to avoid these mischiefs, and to get large societies regulated by the authority of a few of the wiser sort, in the decision of their debates, and the exerting their united force for the common safety of all [and in order to reject more effectually the violence and the attacks of foreigners], men have had recourse to a political union and a civil power.9

BOOK III

The Principles of Oeconomicks and Politicks.

[1. ]Cf. Carmichael, Notes on Puf., p. 121.

[2. ]Here and in the followings paragraphs Hutcheson touches on all the points treated by Pufendorf in De officio 1.16. Cf. also System 2.15.8, vol. II, pp. 103–5, a rare case of a shorter parallel section in the System.

[3. ]“Acceptilation” is a release from debt or obligation without payment.

[4. ]On this section see System 2.18.2, vol. II, pp. 142–45.

[5. ]Cicero, De officiis, 1.33. The Roman arbiter Quintus Fabius Labeo persuaded the opponents separately to accept narrower boundaries and gave the residue to Rome.

[6. ]Cf. Cicero, Pro Milone, 32.5, for the use of this phrase.

[7. ]Square parenthesis in the translation.

[8. ]This is the reason why a parallel section is missing in System, as explained by Hutcheson at p. 147 note. Even in the Institutio Hutcheson, while following Pufendorf’s section on ‘interpretation’ (De officio 1.17) tries to simplify Pufendorf’s rules.

[9. ]See System 2.18.4, vol. II, pp. 146–47.