Front Page Titles (by Subject) CHAPTER XVII: Of the Interpretation of Treaties. - The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.)
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CHAPTER XVII: Of the Interpretation of Treaties. - Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.) 
The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis: Liberty Fund, 2008).
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Of the Interpretation of Treaties.
§262. Necessity of establishing rules of interpretation.If the ideas of men were always distinct and perfectly determinate,—if, for the expression of those ideas, they had none but proper words, no terms but such as were clear, precise, and susceptible only of one sense,—there would never be any difficulty in discovering their meaning in the words by which they intended to express it: nothing more would be necessary, than to understand the language. But, even on this supposition, the art of interpretation would still not be useless. In concessions, conventions, and treaties, in all contracts, as well as in the laws, it is impossible to foresee and point out all the particular cases that may arise: we decree, we ordain, we agree upon certain things, and express them in general terms; and though all the expressions of a treaty should be perfectly clear, plain, and determinate, the true interpretation would still consist in making, in all the particular cases that present themselves, a just application of what has been decreed in a general manner. But this is not all:—conjunctures vary, and produce new kinds of cases, that cannot be brought within the terms of the treaty or the law, except by inferences drawn from the general views of the contracting parties, or of the legislature. Between different clauses, there will be found contradictions and inconsistencies, real or apparent; and the question is, to reconcile such clauses, and point out the path to be pursued. But the case is much worse if we consider that fraud seeks to take advantage even of the imperfection of language, and that men designedly throw obscurity and ambiguity into their treaties, in order to be provided with a pretence for eluding them upon occasion. It is therefore necessary to establish rules founded on reason, and authorised by the law of nature, capable of diffusing light over what is obscure, of determining what is uncertain, and of frustrating the views of him who acts with duplicity in forming the compact. Let us begin with those that tend particularly to this last end,—with those maxims of justice and equity which are calculated to repress fraud, and to prevent the effect of its artifices.
§263.1st General maxim: it is not allowable to interpret what has no need of interpretation.The first general maxim of interpretation is, that It is not allowable to interpret what has no need of interpretation. When a deed is worded in clear and precise terms,—when its meaning is evident, and leads to no absurd conclusion,—there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures in order to restrict or extend it, is but an attempt to elude it. If this dangerous method be once admitted, there will be no deed which it will not render useless. However luminous each clause may be,—however clear and precise the terms in which the deed is couched,—all this will be of no avail, if it be allowed to go in quest of extraneous arguments to prove that it is not to be understood in the sense which it naturally presents.*
§264.2d General maxim: if he who could and ought to have explained himself, has not done it, it is to his own detriment.Those cavillers, who dispute the sense of a clear and determinate article, are accustomed to seek their frivolous subterfuges in the pretended intentions and views which they attribute to its author. It would be very often dangerous to enter with them into the discussion of those supposed views, that are not pointed out in the piece itself. The following rule is better calculated to foil such cavillers, and will at once cut short all chicanery:—If he who could and ought to have explained himself clearly and fully, has not done it, it is the worse for him: he cannot be allowed to introduce subsequent restrictions which he has not expressed. This is a maxim of the Roman law: Pactionem obscuram iis nocere, in quorum fuit potesiate legem apertius conscribere.†69 The equity of this rule is glaringly obvious, and its necessity is not less evident. There will be no security in conventions, no stability in grants or concessions, if they may be rendered nugatory by subsequent limitations, which ought to have been originally specified in the deed, if they were in the contemplation of the contracting parties.
§265.3d General maxim: neither of the contracting parties has a right to interpret the treaty according to his own fancy.The third general maxim, or principle, on the subject of interpretation is, that Neither the one nor the other of the parties interested in the contract has a right to interpret the deed or treaty according to his own fancy. For if you are at liberty to affix whatever meaning you please to my promise, you will have the power of obliging me to do whatever you choose, contrary to my intention, and beyond my real engagements: and on the other hand, if I am allowed to explain my promises as I please, I may render them vain and illusory, by giving them a meaning quite different from that which they presented to you, and in which you must have understood them at the time of your accepting them.
§266.4th General maxim: what is sufficiently declared, is to be taken for true.On every occasion when a person could and ought to have made known his intention, we assume for true against him what he has sufficiently declared. This is an incontestable principle, applied to treaties; for if they are not a vain play of words, the contracting parties ought to express themselves in them with truth, and according to their real intentions. If the intention which is sufficiently declared were not to be taken of course as the true intention of him who speaks and enters into engagements, it would be perfectly useless to form contracts or treaties.
§267. We ought to attend rather to the words of the person promising, than to those of the party stipulating.But it is here asked, which of the contracting parties ought to have his expressions considered as the more decisive, with respect to the true meaning of the contract,—whether we should lay a greater stress on the words of him who makes the promise than on those of the party who stipulates for its performance?—As the force and obligation of every contract arises from a perfect promise,—and the person who makes the promise is no further engaged than his will is sufficiently declared,—it is very certain, that, in order to discover the true meaning of the contract, attention ought principally to be paid to the words of the promising party. For he voluntarily binds himself by his words; and we take for true against him, what he has sufficiently declared. This question seems to have originated from the manner in which conventions are sometimes made: the one party offers the conditions, and the other accepts them; that is to say, the former proposes what he requires that the other shall oblige himself to perform, and the latter declares the obligations into which he really enters. If the words of him who accepts the conditions bear relation to the words of him who offers them, it is certainly true that we ought to lay our principal stress on the expressions of the latter; but this is because the person promising is considered as merely repeating them in order to form his promise. The capitulations of besieged towns may here serve us for an example. The besieged party proposes the conditions on which he is willing to surrender the place: the besieger accepts them: the expressions of the former lay no obligation on the latter, unless so far as he adopts them. He who accepts the conditions is in reality the promising party; and it is in his words that we ought to seek for the true meaning of the articles, whether he has himself chosen and formed his expressions, or adopted those of the other party by referring to them in his promise. But still we must bear in mind the maxim above laid down, viz. that what he has sufficiently declared, is to be taken as true against him. I proceed to explain myself more particularly on this subject.
§268.5th General maxim: the interpretation ought to be made according to certain rules.In the interpretation of a treaty, or of any other deed whatsoever, the question is, to discover what the contracting parties have agreed upon,—to determine precisely, on any particular occasion, what has been promised and accepted,—that is to say, not only what one of the parties intended to promise, but also what the other must reasonably and candidly have supposed to be promised to him,—what has been sufficiently declared to him, and what must have influenced him in his acceptance. Every deed, therefore, and every treaty, must be interpreted by certain fixed rules calculated to determine its meaning, as naturally understood by the parties concerned, at the time when the deed was drawn up and accepted. This is a fifth principle.
As these rules are founded on right reason, and are consequently approved and prescribed by the law of nature, every man, every sovereign, is obliged to admit and to follow them. Unless certain rules be admitted for determining the sense in which the expressions are to be taken, treaties will be only empty words; nothing can be agreed upon with security, and it will be almost ridiculous to place any dependence on the effect of conventions.
§269. The faith of treaties lays an obligation to follow these rules.But as sovereigns acknowledge no common judge, no superior that can oblige them to adopt an interpretation founded on just rules, the faith of treaties constitutes, in this respect, all the security of the contracting powers. That faith is no less violated by a refusal to admit an evidently fair interpretation, than by an open infraction. It is the same injustice, the same want of good-faith; nor is its turpitude rendered less odious by being cloaked up in the subtilties of fraud.
§270. General rule of interpretation.Let us now enter into the particular rules on which the interpretation ought to be formed, in order to be just and fair. Since the sole object of the lawful interpretation of a deed ought to be the discovery of the thoughts of the author or authors of that deed,—whenever we meet with any obscurity in it, we are to consider what probably were the ideas of those who drew up the deed, and to interpret it accordingly. This is the general rule for all interpretations. It particularly serves to ascertain the meaning of particular expressions whose signification is not sufficiently determinate. Pursuant to this rule, we should take those expressions in their utmost latitude when it seems probable that the person speaking had in contemplation every thing which, in that extensive sense, they are capable of designating: and, on the other hand, we ought to restrict their meaning, if the author appears to have confined his idea to what they comprehend in their more limited signification. Let us suppose that a husband has bequeathed to his wife all his money. It is required to know whether this expression means only his ready money, or whether it extends also to that which is lent out, and is due on notes and other securities. If the wife is poor,—if she was beloved by her husband,—if the amount of the ready money be inconsiderable, and the value of the other property greatly superior to that of the money both in specie and in paper,—there is every reason to presume that the husband meant to bequeath to her as well the money due to him as that actually contained in his coffers. On the other hand, if the woman be rich,—if the amount of the ready specie be very considerable, and the money due greatly exceeds in value all the other property,—the probability is, that the husband meant to bequeath to his wife his ready money only.
By the same rule, we are to interpret a clause in the utmost latitude that the strict and appropriate meaning of the words will admit, if it appears that the author had in view every thing which that strict and appropriate meaning comprehends: but we must interpret it in a more limited sense when it appears probable that the author of the clause did not mean to extend it to every thing which the strict propriety of the terms might be made to include. As for instance, a father, who has an only son, bequeaths to the daughter of his friend all his jewels. He has a sword enriched with diamonds, given him by a sovereign prince. In this case it is certainly very improbable that the testator had any intention of making over that honourable badge of distinction to a family of aliens. That sword, therefore, together with the jewels with which it is ornamented, must be excepted from the legacy, and the meaning of the words be restricted to his other jewels. But if the testator has neither son nor heir of his own name, and bequeaths his property to a stranger, there is no reason to limit the signification of the terms; they should be taken in their full import, it being probable that the testator used them in that sense.
§271. The terms are to be explained conformably to common usage.The contracting parties are obliged to express themselves in such manner that they may mutually understand each other. This is evident from the very nature of the transaction. Those who form the contract, concur in the same intentions; they agree in desiring the same thing; and how shall they agree in this instance, if they do not perfectly understand each other? Without this, their contract will be no better than a mockery or a snare. If then they ought to speak in such a manner as to be understood, it is necessary that they should employ the words in their proper signification,—the signification which common usage has affixed to them,—and that they annex an established meaning to every term, every expression, they make use of. They must not, designedly and without mentioning it, deviate from the common usage and the appropriate meaning of words: and it is presumed that they have conformed to established custom in this particular, as long as no cogent reasons can be adduced to authorise a presumption to the contrary; for the presumption is, in general, that things have been done as they ought. From all these incontestable truths, results this rule: In the interpretation of treaties, compacts, and promises, we ought not to deviate from the common use of the language, unless we have very strong reasons for it. In all human affairs, where absolute certainty is not at hand to point out the way, we must take probability for our guide. In most cases, it is extremely probable that the parties have expressed themselves conformably to the established usage: and such probability ever affords a strong presumption, which cannot be over-ruled but by a still stronger presumption to the contrary. Camden* gives us a treaty, in which it is expressly said that the treaty shall be precisely understood according to the force and appropriate signification of the terms. After such a clause, we cannot, under any pretence, deviate from the proper meaning which custom has affixed to the terms,—the will of the contracting parties being thereby formally declared in the most unambiguous manner.
§272. Interpretation of ancient treaties.The usage we here speak of, is that of the time when the treaty, or the deed, of whatever kind, was drawn up and concluded. Languages incessantly vary, and the signification and force of words changes with time. When, therefore, an ancient deed is to be interpreted, we should be acquainted with the com-mon use of the terms at the time when it was written; and that knowledge is to be acquired from deeds of the same period, and from contemporary writers, by diligently comparing them with each other. This is the only source from which to derive any information that can be depended on. The use of the vulgar languages being, as every one knows, very arbitrary,—etymological and grammatical investigations, pursued with a view to discover the true import of a word in common usage, would furnish but a vain theory, equally useless and destitute of proof.
§273. Of quibbles on words.Words are only designed to express the thoughts; thus the true signification of an expression, in common use, is the idea which custom has affixed to that expression. It is then a gross quibble to affix a particular sense to a word, in order to elude the true sense of the entire expression. Mahomet,70 emperor of the Turks, at the taking of Negropont,71 having promised a man to spare his head, caused him to be cut in two through the middle of the body. Tamerlane, after having engaged the city of Sebastia to capitulate72 under his promise of shedding no blood, caused all the soldiers of the garrison to be buried alive:* gross subterfuges which, as Cicero remarks,† only serve to aggravate the guilt of the perfidious wretch who has recourse to them. To spare the head of any one, and to shed no blood, are expressions, which, according to common custom, and especially on such an occasion, manifestly imply to spare the lives of the parties.
§274.A rule on this subject.All these pitiful subtilties are overthrown by this unerring rule: When we evidently see what is the sense that agrees with the intention of the contracting parties, it is not allowable to wrest their words to a contrary meaning. The intention, sufficiently known, furnishes the true matter of the convention,—what is promised and accepted, demanded and granted. A violation of the treaty is rather a deviation from the intention which it sufficiently manifests, than from the terms in which it is worded: for the terms are nothing without the intention by which they must be dictated.
§275. Mental reservations.Is it necessary, in an enlightened age, to say that mental reservations cannot be admitted in treaties? This is manifest, since, by the very nature of the treaty, the parties are bound to express themselves in such manner that they may mutually understand each other (§271). There is scarcely an individual now to be found, who would not be ashamed of building upon a mental reservation. What can be the use of such an artifice, unless to lull the opposite party into a false security, under the vain appearance of a contract? It is then a real piece of knavery.
§276. Interpretation of technical terms.Technical terms, or terms peculiar to the arts and sciences, ought commonly to be interpreted according to the definition given of them by masters of the art, or persons versed in the knowledge of the art or science to which the terms belong. I say commonly; for this rule is not so absolute, but that we may and even ought to deviate from it, when we have good reasons for such deviation; as, for instance, if it were proved that he who speaks in a treaty, or in any other deed, did not understand the art or science from which he borrowed the term,—that he was unacquainted with its import as a technical word,—that he employed it in a vulgar acceptation, &c.
§277. Of terms whose signification admits of degrees.If, however, the technical or other terms relate to things that admit of different degrees, we ought not scrupulously to adhere to definitions, but rather to take the terms in a sense agreeable to the context: for, a regular definition describes a thing in its most perfect state; and yet it is certain that we do not always mean it in that state of its utmost perfection, whenever we speak of it. Now the interpretation should only tend to the discovery of the will of the contracting parties (§268): to each term, therefore, we should affix that meaning, which the party whose words we interpret, probably had in contemplation. Thus, when the parties in a treaty have agreed to submit their pretensions to the decision of two or three able civilians, it would be ridiculous to endeavour to elude the compromise, under the pretence that we can find no civilian accomplished in every point, or to strain the terms so far as to reject all who do not equal Cujas73 or Grotius. Would he who had stipulated for the assistance of ten thousand good troops have any reason to insist upon soldiers of whom the very worst should be comparable to the veterans of Julius Caesar? And if a prince had promised his ally a good general, must he send him none but a Marlborough or a Turenne?
§278. Of figurative expressions.There are figurative expressions that are become so familiar in the common use of language, that, in numberless instances, they supply the place of proper terms, so that we ought to take them in a figurative sense, without paying any attention to their original, proper, and direct signification: the subject of the discourse sufficiently indicates the meaning that should be affixed to them. To hatch a plot, to carry fire and sword into a country,* are expressions of this sort; and there scarcely can occur an instance where it would not be absurd to take them in their direct and literal sense.
§279. Of equivocal expressions.There is not perhaps any language that does not also contain words which signify two or more different things, and phrases which are susceptible of more than one sense. Thence arises ambiguity in discourse. The contracting parties ought carefully to avoid it. Designedly to use it with a view to elude their engagements in the sequel, is downright perfidy, since the faith of treaties obliges the contracting parties to express their intentions clearly (§271). But if an ambiguous expression has found its way into a deed, it is the part of the interpreter to clear up any doubt thereby occasioned.
§280. The rule for these two cases.The following is the rule that ought to direct the interpretation in this as well as in the preceding case: We ought always to affix such meaning to the expressions, as is most suitable to the subject or matter in question. For, by a true interpretation, we endeavour to discover the thoughts of the persons speaking, or of the contracting parties in a treaty. Now it ought to be presumed that he who has employed a word which is susceptible of many different significations, has taken it in that which agrees with his subject. In proportion as he employs his attention on the matter in question, the terms proper to express his thoughts present themselves to his mind; this equivocal word could therefore only present itself in the sense proper to express the thought of him who makes use of it, that is, in the sense agreeable to the subject. It would be a feeble objection to this, to allege that a man sometimes designedly employs equivocal expressions, with a view of holding out ideas quite different from his real thoughts, and that, in such case, the sense which agrees with the subject is not that which corresponds with the intention of the person speaking. We have already observed, that whenever a man can and ought to make known his intention, we assume for true against him what he has sufficiently declared (§266). And as good-faith ought to preside in conventions, they are always interpreted on the supposition that it actually did preside in them. Let us illustrate this rule by examples. The word day is understood of the natural day, or the time during which the sun affords us his light, and of the civil day, or the space of twenty-four hours. When it is used in a convention to point out a space of time, the subject itself manifestly shews that the parties mean the civil day, or the term of twenty-four hours. It was therefore a pitiful subterfuge, or rather a notorious perfidy, in Cleomenes,74 when, having concluded a truce of some days with the people of Argos, and finding them asleep on the third night in reliance on the faith of the treaty, he killed a part of their number, and made the rest prisoners, alleging that the nights were not comprehended in the truce.* The word steel may be understood of the metal itself, or of certain instruments made of it:—in a convention which stipulates that the enemy shall lay down their steel, it evidently means their weapons: wherefore Pericles, in the example related above (§233), gave a fraudulent interpretation to those words, since it was contrary to what the nature of the subject manifestly pointed out. Q. Fabius Labeo, of whom we made mention in the same section, shewed equal dishonesty in the interpretation of his treaty with Antiochus; for a sovereign who stipulates that the half of his fleet or of his vessels shall be restored to him, undoubtedly means that the other party shall restore to him vessels which he can make use of, and not the half of each vessel, when sawed into two. Pericles and Fabius are also condemned by the rule established above (§274), which forbids us to wrest the sense of the words contrary to the evident intention of the contracting parties.
§281. Not necessary to give a term the same sense everywhere in the same deed.If any one of those expressions which are susceptible of different significations occurs more than once in the same piece, we cannot make it a rule to take it every-where in the same signification. For we must, conformably to the preceding rule, take such expression, in each article, according as the subject requires,—pro substrata materia,75 as the masters of the art say. The word day, for instance, has two significations, as we have just observed (§280). If therefore it be said in a convention, that there shall be a truce of fifty days, on condition that commissioners from both parties shall, during eight successive days, jointly endeavour to adjust the dispute,—the fifty days of the truce are civil days of twenty-four hours; but it would be absurd to understand them in the same sense in the second article, and to pretend that the commissioners should labour eight days and nights without intermission.
§282. We ought to reject every interpretation that leads to an absurdity;Every interpretation that leads to an absurdity, ought to be rejected; or, in other words, we should not give to any piece a meaning from which any absurd consequences would follow, but must interpret it in such a manner as to avoid absurdity. As it is not to be presumed that any one means what is absurd, it cannot be supposed that the person speaking intended that his words should be understood in a manner from which an absurdity would follow. Neither is it allowable to presume that he meant to indulge a sportive levity in a serious deed: for what is shameful and unlawful is not to be presumed. We call absurd not only what is physically impossible, but what is morally so,—that is to say, what is so contrary to reason, that it cannot be attributed to a man in his right senses. Those fanatic Jews, who scrupled to defend themselves when the enemy attacked them on the sabbath day, gave an absurd interpretation to the fourth commandment. Why did they not also abstain from dressing, walking, and eating? These also are “works,” if the term be strained to its utmost rigour. It is said that a man in England married three wives, in order that he might not be subject to the penalty of the law which forbids marrying two. This is doubtless a popular tale, invented with a view to ridicule the extreme circumspection of the English, who will not allow the smallest departure from the letter in the application of the law. That wise and free people have too often seen, by the experience of other nations, that the laws are no longer a firm barrier and secure defence, when once the executive power is allowed to interpret them at pleasure. But surely they do not mean that the letter of the law should on any occasion be strained to a sense that is manifestly absurd.
The rule we have just mentioned is absolutely necessary, and ought to be followed, even when the text of the law or treaty does not, considered in itself, present either obscurity or ambiguity in the language. For it must be observed, that the uncertainty of the sense we are to give to a law or a treaty, does not solely proceed from the obscurity or other defect in the expression, but also from the limited nature of the human mind, which cannot foresee all cases and circumstances, nor take in at one view all the consequences of what is decreed or promised,—and, finally, from the impossibility of entering into that immense detail. Laws and treaties can only be worded in a general manner; and it is the interpreter’s province to apply them to particular cases, conformably to the intention of the legislature, or of the contracting powers. Now we are not in any case to presume that it was their intention to establish an absurdity: and therefore, when their expressions, taken in their proper and ordinary meaning, would lead to absurd consequences, it becomes necessary to deviate from that meaning, just so far as is sufficient to avoid absurdity. Let us suppose a captain has received orders to advance in a right line with his troops to a certain post: he finds a precipice in his way: surely his orders do not oblige him to leap headlong down: he must therefore deviate from the right line, so far as is necessary to avoid the precipice, but no farther.
The application of the rule is more easy, when the expressions of the law, or of the treaty, are susceptible of two different meanings. In this case we adopt without hesitation that meaning from which no absurdity follows. In the same manner, when the expression is such, that we may give it a figurative sense, we ought doubtless to do this, when it becomes necessary, in order to avoid falling into an absurdity.
§283.and that which renders the act null and void of effect.It is not to be presumed that sensible persons, in treating together, or transacting any other serious business, meant that the result of their proceedings should prove a mere nullity. The interpretation, therefore, which would render a treaty null and inefficient, cannot be admitted. We may consider this rule as a branch of the preceding; for it is a kind of absurdity to suppose that the very terms of a deed should reduce it to mean nothing. It ought to be interpreted in such a manner, as that it may have its effect, and not prove vain and nugatory: and in this interpretation we proceed according to the mode pointed out in the foregoing section. In both cases, as in all interpretations, the question is, to give the words that sense which ought to be presumed most conformable to the intention of the parties speaking. If many different interpretations present themselves, by which we can conveniently avoid construing the deed into a nullity or an absurdity, we are to prefer that which appears the most agreeable to the intention of those who framed the deed: the particular circumstances of the case, aided by other rules of interpretation, will serve to point it out. Thucydides relates,* that the Athe-nians, after having promised to retire from the territories of the Boeotians, claimed a right to remain in the country under pretence that the lands actually occupied by their army did not belong to the Boeotians;—a ridiculous quibble, since, by giving that sense to the treaty, they reduced it to nothing, or rather to a puerile play. The territories of the Boeotians should evidently have been construed to mean all that was comprised within their former boundaries, without excepting what the enemy had seized during the war.
§284. Obscure expressions interpreted by others more clear in the same author.If he who has expressed himself in an obscure or equivocal manner has spoken elsewhere more clearly on the same subject, he is the best interpreter of his own words. We ought to interpret his obscure or equivocal expressions in such a manner, that they may agree with those clear and unequivocal terms which he has elsewhere used, either in the same deed, or on some other similar occasion. In fact, while we have no proof that a man has changed his mind or manner of thinking, it is presumed that his thoughts have been the same on similar occasions; so that if he has anywhere clearly shewn his intention with respect to a certain thing, we ought to affix the same meaning to what he has elsewhere obscurely said on the same subject. Let us suppose, for instance, that two allies have reciprocally promised each other, in case of necessity, the assistance of ten thousand foot-soldiers who are to be supported at the expense of the party that sends them, and that, by a posterior treaty, they agree that the number of the auxiliary troops shall be fifteen thousand, without mentioning their support: the obscurity or uncertainty which remains in this article of the new treaty, is dissipated by the clear and express stipulation contained in the former one. As the allies do not give any indication that they have changed their minds with respect to the support of the auxiliary troops, we are not to presume any such change; and those fifteen thousand men are to be supported as the ten thousand promised in the first treaty. The same holds good, and with much stronger reason, when there is question of two articles of the same treaty,—when, for example, a prince promises to furnish ten thousand men, paid and maintained at his own expense, for the defence of the states of his ally,—and, in another article, only promises four thousand men, in case that ally be engaged in an offensive war.
§285. Interpretation founded on the connection of the discourse.It frequently happens, that, with a view to conciseness, people express imperfectly, and with some degree of obscurity, things which they suppose to be sufficiently elucidated by the preceding matter, or which they intend to explain in the sequel: and moreover, words and expressions have a different force, sometimes even a quite different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is therefore another source of interpretation. We must consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification which it may individually ad-mit of, as that which it ought to have from the context and spirit of the discourse. Such is the maxim of the Roman law, Incivile est, nisi totâ lege perspectâ, unâ aliquâ particulâ ejus propositâ, judicare, vel respondere.*76
§286. Interpretation drawn from the connection and relation of the things themselves,The very connection and relation of the things in question helps also to discover and establish the true sense of a treaty, or of any other piece. The interpretation ought to be made in such a manner, that all the parts may appear consonant to each other,—that what follows may agree with what preceded,—unless it evidently appear, that, by the subsequent clauses, the parties intended to make some alteration in the preceding ones. For it is to be presumed that the authors of a deed had an uniform and steady train of thinking,—that they did not aim at inconsistencies and contradictions,—but rather that they intended to explain one thing by another,—and, in a word, that one and the same spirit reigns throughout the same production or the same treaty. Let us render this more plain by an example. A treaty of alliance declares, that, in case one of the allies be attacked, each of the others shall assist him with a body of ten thousand foot, paid and supported; and in another article, it is said that the ally who is attacked shall be at liberty to demand the promised assistance in cavalry rather than in infantry. Here we see, that, in the first article, the allies have determined the quantum of the succour, and its value,—that of ten thousand foot; and, in the latter article, without appearing to intend any variation in the value or number, they leave the nature of the succours to the choice of the party who may stand in need of them. If therefore the ally who is attacked calls upon the others for cavalry, they will give him, according to the established proportion, an equivalent to ten thousand foot. But if it appears that the intention of the latter article was, that the promised succours should in certain cases be augmented,—if, for instance, it be said, that, in case one of the allies happen to be attacked by an enemy of considerably superior strength, and more powerful in cavalry, the succours shall be furnished in cavalry, and not in infantry,—it appears that, in this case, the promised assistance ought to be ten thousand horse.
As two articles in one and the same treaty may bear relation to each other, two different treaties may in like manner have a relative connection; and in this case, each serves to explain the other. For instance, one of the contracting parties has, in consideration of a certain object, promised to deliver to the other ten thousand sacks of wheat. By a subsequent agreement, it is determined, that, instead of wheat, he shall give him oats. The quantity of oats is not expressed; but it is determined by comparing the second convention with the first. If there be no circumstance to prove that it was the intention of the parties, in the second agreement, to diminish the value of what was to be delivered, we are to understand a quantity of oats proportioned to the price of ten thousand sacks of wheat: but if it evidently appears, from the circumstances and motives of the second convention, that it was their intention to reduce the value of what was due under the former agreement,—in this case, ten thousand sacks of oats are to be substituted in lieu of the ten thousand sacks of wheat.
§287. Interpretation founded on the reason of the deed.The reason of the law, or of the treaty,—that is to say, the motive which led to the making of it, and the object in contemplation at the time,—is the most certain clue to lead us to the discovery of its true meaning; and great attention should be paid to this circumstance, whenever there is question either of explaining an obscure, ambiguous, indeterminate passage in a law or treaty, or of applying it to a particular case. When once we certainly know the reason which alone has determined the will of the person speaking, we ought to interpret and apply his words in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intention, and in opposition to his own views. Pursuant to this rule, a prince, who, on granting his daughter in marriage, has promised to assist his intended son-in-law in all his wars, is not bound to give him any assistance if the marriage does not take place.
But we ought to be very certain that we know the true and only reason of the law, the promise, or the treaty. In matters of this nature, it is not allowable to indulge in vague and uncertain conjectures, and to suppose reasons and views where there are none certainly known. If the piece in question is in itself obscure,—if, in order to discover its meaning, we have no other resource than the investigation of the author’s views, or the motives of the deed,—we may then have recourse to conjecture, and, in default of absolute certainty, adopt, as the true meaning, that which has the greatest degree of probability on its side. But it is a dangerous abuse, to go, without necessity, in search of motives and uncertain views, in order to wrest, restrict, or extend the meaning of a deed which is of itself sufficiently clear, and carries no absurdity on the face of it. Such a procedure is a violation of that incontestable maxim,—that it is not allowable to interpret what has no need of interpretation (§263). Much less are we allowed,—when the author of a piece has in the piece itself declared his reasons and motives,—to attribute to him some secret reason, which may authorise us in giving an interpretation repugnant to the natural meaning of the expressions. Even though he should have entertained the views which we attribute to him,—yet, if he has concealed them, and announced different ones, it is upon the latter alone that we must build our interpretation, and not upon those which the author has not expressed:—we assume, as true, against him, what he has sufficiently declared (§266).
§288. Where many reasons have concurred to determine the will.We ought to be the more circumspect in this kind of interpretation, as it frequently happens that several motives concur to determine the will of the party who speaks in a law or a promise. Perhaps the combined influence of all those motives was necessary in order to determine his will;—perhaps each one of them, taken individually, would have been sufficient to produce that effect. In the former case, if we are perfectly certain that it was only in consideration of several concurrent reasons and motives that the legislature or the contracting parties consented to the law or the contract, the interpretation and application ought to be made in a manner agreeable to all those concurrent reasons, and none of them must be overlooked. But in the latter case, when it is evident that each of the reasons which have concurred in determining the will, was sufficient to produce that effect, so that the author of the piece in question would, by each of the reasons separately considered, have been induced to form the same determination which he has formed upon all the reasons taken in the aggregate, his words must be so interpreted and applied, as to make them accord with each of those reasons taken individually. Suppose a prince has promised certain advantages to all foreign protestants and artisans who will come and settle in his states: if that prince is in no want of subjects, but of artisans only,—and if, on the other hand, it appears that he does not choose to have any other subjects than protestants,—his promise must be so interpreted, as to relate only to such foreigners as unite those two characters, of protestants and artisans. But if it is evident that this prince wants to people his country, and that, although he would prefer protestant subjects to others, he has in particular so great a want of artisans, that he would gladly receive them, of whatever religion they be,—his words should be taken in a disjunctive sense, so that it will be sufficient to be either a protestant or an artisan, in order to enjoy the promised advantages.
§289. What constitutes a sufficient reason for an act of the will.To avoid tedious and complex circumlocution, we shall make use of the term, “sufficient reason for an act of the will,” to express whatever has produced that act,—whatever has determined the will on a particular occasion; whether the will has been determined by a single reason, or by many concurrent reasons. That sufficient reason, then, will be sometimes found to consist in a combination of many different reasons, so that, where a single one of those reasons is wanting, the sufficient reason no longer exists: and in those cases where we say that many motives, many reasons, have concurred to determine the will, yet so as that each in particular would have been alone capable of producing the same effect,—there will then be many sufficient reasons for producing one single act of the will. Of this we see daily instances. A prince, for example, declares war for three or four injuries received, each of which would have been sufficient to have produced the declaration of war.
§290. Extensive interpretation founded on the reason of the act.The consideration of the reason of a law or promise not only serves to explain the obscure or ambiguous expressions which occur in the piece, but also to extend or restrict its several provisions independently of the expressions, and in conformity to the intention and views of the legislature or the contracting parties, rather than to their words. For, according to the remark of Cicero,* the language, invented to explain the will, ought not to hinder its effect. When the sufficient and only reason of a provision, either in a law or a promise, is perfectly certain, and well understood, we extend that provision to cases to which the same reason is applicable, although they be not comprised within the signification of the terms. This is what is called extensive interpretation. It is commonly said, that we ought to adhere rather to the spirit than to the letter. Thus the Mahomedans justly extend the prohibition of wine, in the Koran, to all intoxicating liquors; that dangerous quality being the only reason that could induce their legislator to prohibit the use of wine. Thus also, if, at the time when there were no other fortifications than walls, it was agreed not to inclose a certain town with walls, it would not be allowable to fortify it with fossés and ramparts, since the only view of the treaty evidently was, to prevent its being converted into a fortified place.
But we should here observe the same caution above recommended (§287), and even still greater, since the question relates to an application in no wise authorised by the terms of the deed. We ought to be thoroughly convinced that we know the true and only reason of the law or the promise, and that the author has taken it in the same latitude which must be given to it in order to make it reach the case to which we mean to extend the law or promise in question. As to the rest, I do not here forget what I have said above (§268), that the true sense of a promise is not only that which the person promising had in his mind, but also that which has been sufficiently declared,—that which both the contracting parties must reasonably have understood. In like manner, the true reason of a promise is that which the contract, the nature of the things in question, and other circumstances, sufficiently indicate: it would be useless and ridiculous to allege any by-views which the person might have secretly entertained in his own mind.
§291. Frauds tending to elude laws or promises.The rule just laid down serves also to defeat the pretexts and pitiful evasions of those who endeavour to elude laws or treaties. Good-faith adheres to the intention; fraud insists on the terms, when it thinks that they can furnish a cloak for its prevarications. The isle of Pharos near Alexandria was, with other islands, tributary to the Rhodians. The latter having sent collectors to levy the tribute, the queen of Egypt amused them for some time at her court, using in the mean while every possible exertion to join Pharos to the main land by means of moles: after which she laughed at the Rhodians, and sent them a message intimating that it was very unreasonable in them to pretend to levy on the main land a tribute which they had no title to demand except from the islands.* There existed a law which forbade the Corinthians to give vessels to the Athenians:—they sold them a number at five drachmae each.† The following was an expedient worthy of Tiberius:77 custom not permitting him to cause a virgin to be strangled, he ordered the executioner first to deflower the young daughter of Sejanus,78 and then to strangle her.* To violate the spirit of the law while we pretend to respect the letter, is a fraud no less criminal than an open violation of it; it is equally repugnant to the intention of the law-maker, and only evinces a more artful and deliberate villany in the person who is guilty of it.
§292. Restrictive interpretation.Restrictive interpretation, which is the reverse of extensive interpretation, is founded on the same principle. As we extend a clause to those cases, which, though not comprised within the meaning of the terms, are nevertheless comprised in the intention of that clause, and included in the reasons that produced it,—in like manner, we restrict a law or a promise, contrary to the literal signification of the terms,—our judgment being directed by the reason of that law or that promise: that is to say, if a case occurs, to which the well-known reason of a law or promise is utterly inapplicable, that case ought to be excepted, although, if we were barely to consider the meaning of the terms, it should seem to fall within the purview of the law or promise. It is impossible to think of every thing, to foresee every thing, and to express every thing; it is sufficient to enounce certain things in such a manner as to make known our thoughts concerning things of which we do not speak: and, as Seneca the rhetorician says,† there are exceptions so clear, that it is unnecessary to express them. The law condemns to suffer death whoever strikes his father: shall we punish him who has shaken and struck his father, to recover him from a lethargic stupor? shall we punish a young child, or a man in a delirium, who has lifted his hand against the author of his life? In the former case the reason of the law does not hold good; and to the two latter it is inapplicable. We are bound to restore what is intrusted to us: shall I restore what a robber has intrusted to me, at the time when the true proprietor makes himself known to me, and demands his property? A man has left his sword with me: shall I restore it to him, when, in a transport of fury, he demands it for the purpose of killing an innocent person?
§293. Its use, in order to avoid falling into absurdities, or into what is unlawful;We have recourse to restrictive interpretation, in order to avoid falling into absurdities (see §282). A man bequeaths his house to one, and to another his garden, the only entrance into which is through the house. It would be absurd to suppose that he had bequeathed to the latter a garden into which he could not enter: we must therefore restrict the pure and simple donation of the house, and understand that it was given only upon condition of allowing a passage to the gar-den. The same mode of interpretation is to be adopted whenever a case occurs, in which the law or the treaty, if interpreted according to the strict meaning of the terms, would lead to something unlawful. On such an occasion, the case in question is to be excepted, since nobody can ordain or promise what is unlawful. For this reason, though assistance has been promised to an ally in all his wars, no assistance ought to be given him when he undertakes one that is manifestly unjust.
§294.or what is too severe and burthensome.When a case arises in which it would be too severe and too prejudicial to any one to interpret a law or a promise according to the rigour of the terms, a restrictive interpretation is then also used, and we except the case in question, agreeably to the intention of the legislature, or of him who made the promise: for the legislature intends only what is just and equitable; and, in contracts, no one can enter into such engagements in favour of another, as shall essentially supersede the duty he owes to himself. It is then presumed with reason, that neither the legislature nor the contracting parties have intended to extend their regulations to cases of this nature, and that they themselves, if personally present, would except them. A prince is no longer obliged to send succours to his allies, when he himself is attacked, and has need of all his forces for his own defence. He may also, without the slightest imputation of perfidy, abandon an alliance, when, through the ill success of the war, he sees his state threatened with impending ruin if he does not immediately treat with the enemy. Thus, towards the end of the last century, Victor Amadeus, duke of Savoy,79 found himself under the necessity of separating from his allies, and of receiving law from France, to avoid losing his states. The king his son80 would have had good reasons to justify a separate peace in the year 1745: but upheld by his courage, and animated by just views of his true interest, he embraced the generous resolution to struggle against an extremity which might have dispensed with his persisting in his engagements.
§295. How it ought to restrict the signification agreeably to the subject.We have said above (§280), that we should take the expressions in the sense that agrees with the subject or the matter. Restrictive interpretation is also directed by this rule. If the subject or the matter treated of will not allow that the terms of a clause should be taken in their full extent, we should limit the sense according as the subject requires. Let us suppose that the custom of a particular country confines the entail of fiefs to the male line properly so called: if an act of enfeoffment in that country declares that the fief is given to a person for himself and his male descendents, the sense of these last words must be restricted to the males descending from males; for the subject will not admit of our understanding them also of males who are the issue of females, though they are reckoned among the male descendents of the first possessor.
§296. How a change happening in the state of things may form an exception.The following question has been proposed and debated,—“Whether promises include a tacit condition of the state of af-fairs continuing the same,—or whether a change happening in the state of affairs can create an exception to the promise, and even render it void.” The principle derived from the reason of the promise, must solve the question. If it be certain and manifest, that the consideration of the present state of things was one of the reasons which occasioned the promise,—that the promise was made in consideration or in consequence of that state of things,—it depends on the preservation of things in the same state. This is evident, since the promise was made only upon that supposition. When therefore that state of things, which was essential to the promise, and without which it certainly would not have been made, happens to be changed, the promise falls to the ground, when its foundation fails. And in particular cases where things cease for a time to be in the state that has produced or concurred to produce the promise, an exception is to be made to it. An elective prince being without issue, has promised to an ally that he will procure his appointment to the succession. He has a son born: who can doubt that the promise is made void by this event? He who in a time of peace has promised succours to an ally, is not bound to give him any when he himself has need of all his forces for the defence of his own dominions. A prince, possessed of no very formidable power, has received from his allies a promise of faithful and constant assistance, in order to his aggrandisement,—in order to enable him to obtain a neighbouring state by election or by marriage: yet those allies will have just grounds for refusing him the smallest aid or support, and even forming an alliance against him, when they see him elevated to such a height of power, as to threaten the liberties of all Europe. If the great Gustavus had not been killed at Lutzen,81 cardinal de Richelieu, who had concluded an alliance for his master with that prince, and who had invited him into Germany, and assisted him with money, would perhaps have found himself obliged to traverse the designs of that conqueror, when become formidable,—to set bounds to his astonishing progress, and to support his humbled enemies. The states-general of the United Provinces conducted themselves on these principles in 1668. In favour of Spain, which before had been their mortal enemy, they formed the triple alliance against Louis XIV. their former ally. It was necessary to raise a barrier to check the progress of a power which threatened to inundate and overwhelm all before it.
But we ought to be very cautious and moderate in the application of the present rule: it would be a shameful perversion of it, to take advantage of every change that happens in the state of affairs, in order to disengage ourselves from our promises: were such conduct adopted, there could be no dependence placed on any promise whatever. That state of things alone, in consideration of which the promise was made, is essential to the promise: and it is only by a change in that state, that the effect of the promise can be lawfully prevented or suspended.—Such is the sense in which we are to understand that maxim of the civilians, conventio omnis intelligitur rebus sic stantibus.82
What we say of promises, must also be understood as extending to laws. A law which relates to a certain situation of affairs can only take place in that situation. We ought to reason in the same manner with respect to a commission. Thus, Titus83 being sent by his father to pay his respects to the emperor, turned back on being informed of the death of Galba.84
§297. Interpretation of a deed in unforeseen cases.In unforeseen cases, that is to say, when the state of things happens to be such as the author of a deed has not foreseen, and could not have thought of, we should rather be guided by his intention than by his words, and interpret the instrument as he himself would interpret it if he were on the spot, or conformably to what he would have done if he had foreseen the circumstances which are at present known. This rule is of great use to judges, and to all those in society who are appointed to carry into effect the testamentary regulations of the citizens. A father appoints by will a guardian for his children, who are under age. After his death the magistrate finds that the guardian he has nominated is an extravagant profligate, without property or conduct: he therefore dismisses him, and appoints another, according to the Roman laws,* adhering to the intention of the testator, and not to his words; for it is but reasonable to suppose,—and we are to presume it as a fact,—that the father never intended to give his children a guardian who should ruin them, and that he would have nominated another, had he known the vices of the person he appointed.
§298. Reasons arising from the possibility and not the existence of a thing.When the things which constitute the reason of a law or convention, are considered, not as actually existing, but simply as possible,—or, in other words, when the fear of an event is the reason of a law or a promise, no other cases can be excepted from it, than those in which it can be proved to demonstration that the event is really impossible. The bare possibility of the event is sufficient to preclude all exceptions. If, for instance, a treaty declares that no army or fleet shall be conducted to a certain place, it will not be allowable to conduct thither an army or a fleet, under pretence that no harm is intended by such a step: for the object of a clause of this nature is not only to prevent a real evil, but also to keep all danger at a distance, and to avoid even the slightest subject of uneasiness. It is the same with the law which forbids walking the streets by night with a lighted torch or candle. It would be an unavailing plea for the transgressor of that law to allege that no mischief has ensued, and that he carried his torch with such circumspection, that no ill consequence was to be apprehended. The bare possibility of causing a conflagration was sufficient to have rendered it his duty to obey the law; and he has transgressed it by ex-citing fears which it was the intention of the legislature to prevent.
§299. Expressions capable of an extensive and a limited sense.At the beginning of this chapter, we observed that men’s ideas and language are not always perfectly determinate. There is, doubtless, no language in which there do not occur expressions, words, or entire phrases, susceptible of a more or less extensive signification. Many a word is equally applicable to the genus or the species:—the word fault implies intentional guilt or simple error:—several species of animals have but one name common to both sexes, as partridge, lark, sparrow, &c.—when we speak of horses merely with a view to the services they render to mankind, mares also are comprehended under that name. In technical language a word has sometimes a more and sometimes a less extensive sense, than in vulgar use: the word death, among civilians, signifies not only natural death, but also civil death: verbum, in the Latin grammar, signifies only that part of speech called the verb; but, in common use, it signifies any word in general. Frequently also the same phrase implies more things on one occasion, and fewer on another, according to the nature of the subject or matter: thus, when we talk of sending succours, sometimes we understand a body of auxiliary troops maintained and paid by the party who sends them, at other times a body whose expenses are to be entirely defrayed by the party who receives them. It is therefore necessary to establish rules for the interpretation of those indeterminate expressions, in order to ascertain the cases in which they are to be understood in the more extensive sense, and those in which they are to be restricted to their more limited meaning. Many of the rules we have already given may serve for this purpose.
§300. Of things favourable, and things odious.But it is to this head that the famous distinction, between things of a favourable and those of an odious nature, particularly belongs. Some writers have rejected the distinction,* —doubtless, for want of properly understanding it.85 In fact, the definitions that have been given of what is favourable and what is odious, are not fully satisfactory, nor easily applied. After having maturely considered what the most judicious authors have written on the subject, I conceive the whole of the question to be reducible to the following positions, which convey a just idea of that famous distinction. When the provisions of a law or a convention are plain, clear, determinate, and attended with no doubt or difficulty in the application, there is no room for any interpretation or comment (§263). The precise point of the will of the legislature or the contracting parties, is what we must adhere to. But if their expressions are indeterminate, vague, or susceptible of a more or less extensive sense,—if that precise point of their intention cannot, in the particular case in question, be discovered and fixed by the other rules of interpretation,—we must presume it according to the laws of reason and equity: and, for this purpose, it is necessary to pay attention to the nature of the things to which the question relates. There are certain things of which equity admits the extension rather than the restriction; that is to say, that, with respect to those things, the precise point of the will not being discovered in the expressions of the law or the contract, it is safer and more consistent with equity, to suppose and fix that point in the more extensive than in the more limited sense of the terms,—to give a latitude to the meaning of the expressions, than to restrict it. These are the things called favourable. Odious things, on the other hand, are those, of which the restriction tends more certainly to equity, than the extension. Let us figure to ourselves the intention or the will of the legislature or the contracting parties, as a fixed point. At that point precisely should we stop, if it be clearly known;—if uncertain, we should at least endeavour to approach it. In things favourable, it is better to pass beyond that point, than not to reach it; in things odious, it is better not to reach it, than to pass beyond it.
§301. What tends to the common advantage, and to equality, is favourable; the contrary is odious.It will not now be difficult to shew, in general, what things are favourable, and what are odious. In the first place, every thing that tends to the common advantage in conventions, or that has a tendency to place the contracting parties on a footing of equality, is favourable. The voice of equity, and the general rule of contracts, require that the conditions between the parties should be equal. We are not to presume, without very strong reasons, that one of the contracting parties intended to favour the other to his own prejudice; but there is no danger in extending what is for the common advantage. If, therefore, it happens that the contracting parties have not made known their will with sufficient clearness, and with all the necessary precision, it is certainly more conformable to equity to seek for that will in the sense most favourable to equality and the common advantage, than to suppose it in the contrary sense. For the same reason, every thing that is not for the common advantage, every thing that tends to destroy the equality of a contract, every thing that onerates only one of the parties, or that onerates the one more than the other, is odious. In a treaty of strict friendship, union, and alliance, every thing which, without being burthensome to any of the parties, tends to the common advantage of the confederacy, and to draw the bonds of union closer, is favourable. In unequal treaties, and especially in unequal alliances, all the clauses of inequality, and principally those that onerate the inferior ally, are odious. Upon this principle, that we ought, in case of doubt, to extend what leads to equality, and restrict what destroys it, is founded that well-known rule—Incommoda vitantis melior quam commoda petentis est causa,*—the party who endeavours to avoid a loss, has a better cause to support than he who aims at obtaining an advantage.
§302. What is useful to human society, is favourable; the contrary is odious.All those things which, without proving too burthensome to any one in particular, are useful and salutary to human society, are to be ranked in the class of favourable things: for a nation is already under a natural obligation with respect to things of this nature; so that if she has entered into any particular engagements of this kind, we run no risk in giving those engagements the most extensive meaning of which they are susceptible. Can we be afraid of violating the rules of equity by following the law of nature, and giving the utmost extent to obligations that tend to the common advantage of mankind? Besides, things which are useful to human society, are, from that very circumstance, conducive to the common advantage of the contracting parties, and are consequently favourable (see the preceding section). On the other hand, let us consider as odious, every thing that is, in its own nature, rather injurious than useful to mankind. Those things which have a tendency to promote peace are favourable; those that lead to war are odious.
§303. Whatever contains a penalty, is odious.Every thing that contains a penalty, is odious. With respect to the laws, it is universally agreed, that, in case of doubt, the judge ought to incline to the merciful side, and that it is indisputably better to suffer a guilty person to escape, than to punish one who is innocent. Penal clauses in treaties lay a burthen upon one of the parties; they are therefore odious (§301).
§304. Whatever renders a deed void, is odious.Whatever tends to render a deed void and ineffectual, either in the whole or in part, and consequently, whatever introduces any change in things already agreed upon, is odious: for men treat together with a view to their common benefit; and if I enjoy any particular advantage acquired by a lawful contract, I must not be deprived of it except by my own renunciation. When therefore I consent to new clauses that seem to derogate from it, I can lose my right only so far as I have clearly given it up; and consequently these new clauses are to be understood in the most limited sense they will admit of; as is the case in things of an odious nature (§300). If that which tends to render a deed void and ineffectual, is contained in the deed itself, it is evident that such passages ought to be construed in the most limited sense, in the sense best calculated to preserve the deed in force. We have already seen, that we should reject every interpretation which tends to render a deed void and ineffectual (§283).
§305. Whatever tends to change the present state of things, is odious; the contrary is favourable.Whatever tends to change the present state of things, is also to be ranked in the class of odious things: for the proprietor cannot be deprived of his right except so far, precisely, as he relinquishes it on his part; and in case of doubt, the presumption is in favour of the possessor. It is less repugnant to equity to with-hold from the owner a possession which he has lost through his own neglect, than to strip the just possessor of what lawfully belongs to him. In the interpretation, therefore, we ought rather to hazard the former inconvenience than the latter. Here also may be applied, in many cases, the rule we have mentioned in §301, that the party who endeavours to avoid a loss, has a better cause to support than he who aims at obtaining an advantage.
§306. Things of a mixed nature.Finally, there are things which are at once of a favourable or an odious nature, according to the point of view in which they are considered. Whatever derogates from treaties, or changes the state of things, is odious; but if it is conducive to peace, it is, in that particular, favourable. A degree of odium always attaches to penalties: they may, however, be viewed in a favourable light on those occasions when they are particularly necessary for the safety of society. When there is question of interpreting things of this nature, we ought to consider whether what is favourable in them greatly exceeds what appears odious,—whether the advantage that arises from their being extended to the utmost latitude of which the terms are susceptible, will materially outweigh the severe and odious circumstances attending them; and if that is the case, they are to be ranked in the class of favourable things. Thus an inconsiderable change in the state of things or in conventions is reckoned as nothing, when it procures the inestimable blessings of peace. In the same manner, penal laws may be interpreted in their most extensive meaning, on critical occasions when such an instance of severity becomes necessary to the safety of the state. Cicero caused the accomplices of Catiline86 to be executed by virtue of a decree of the senate,—the safety of the republic rendering it improper to wait till they should be condemned by the people. But where there is not so great a disproportion in the case, and where things are in other respects equal, favour inclines to that side of the question which presents nothing odious;—that is to say, we ought to abstain from things of an odious nature, unless the attendant advantage so far exceed the odious part, as in a manner to conceal it from view. If there be any appearance, however small, of an equilibrium between the odious and the favourable in one of those things of a mixed nature, it is ranked in the class of odious things, by a natural consequence drawn from the principle on which we have founded the distinction between things of a favourable and things of an odious nature (§300), because, in case of doubt, we should in preference pursue that line of conduct by which we are least exposed to deviate from the principles of equity. In a doubtful case, we may reasonably refuse to give succours (though a thing favourable), when there is question of giving them against an ally,—which would be odious.
§307. Interpretation of favourable things.The following are the rules of interpretation, which flow from the principles we have just laid down.
1. When the question relates to things favourable, we ought to give the terms the utmost latitude of which they are susceptible according to the common usage of the language; and if a term has more than one signification, the most extensive meaning is to be preferred: for equity ought to be the rule of conduct with all mankind wherever a perfect right is not exactly determined and known in its precise extent. When the legislature or the contracting parties have not expressed their will in terms that are precise and perfectly determinate, it is to be presumed that they intended what is most equitable. Now, when there is question of favourable things, the more extensive signification of the terms accords better with equity than their more confined signification. Thus Cicero, in pleading the cause of Caecina, justly maintains that the interlocutory decree, ordaining, “that the person expelled from his inheritance be reinstated in the possession,” should be understood as extending to the man who has been forcibly prevented from entering upon it:* and the Digest decides it in the same manner.* It is true that this decision is also founded on the rule taken from parity of reasoning (§290). For it amounts to the same thing in effect, to drive a person from his inheritance, or forcibly to prevent him from entering upon it; and, in both cases, the same reason exists for putting him in possession.
2. In questions relating to favourable things, all terms of art are to be interpreted in the fullest latitude of which they are susceptible, not only in common usage, but also as technical terms, if the person speaking understands the art to which those terms belong, or conducts himself by the advice of men who understand that art.
3. But we ought not, from the single reason that a thing is favourable, to take the terms in an improper signification: this is not allowable, except when necessary in order to avoid absurdity, injustice, or the nullity of the instrument, as is practised on every subject (§§282, 283): for we ought to take the terms of a deed in their proper sense, conformably to custom, unless we have very strong reasons for deviating from it (§271).
4. Though a thing appears favourable when viewed in one particular light,—yet, where the proper meaning of the terms would, if taken in its utmost latitude, lead to absurdity or injustice, their signification must be restricted according to the rules given above (§§293, 294). For here, in this particular case, the thing becomes of a mixed nature, and even such as ought to be ranked in the class of odious things.
5. For the same reason, although neither absurdity nor injustice results from the proper meaning of the terms,—if, nevertheless, manifest equity or a great common advantage requires their restriction, we ought to adhere to the most limited sense which the proper signification will admit, even in an affair that appears favourable in its own nature,—because here also the thing is of a mixed kind, and ought, in this particular case, to be esteemed odious. As to the rest, it is to be carefully remembered that all these rules relate only to doubtful cases; since we are not allowed to go in quest of interpretations for what is already clear and determinate (§263). If any one has clearly and formally bound himself to burthensome conditions, he has knowingly and willingly done it, and cannot afterwards be admitted to appeal to equity.
§308. Interpretation of odious things.Since odious things are those whose restriction tends more certainly to equity than their extension,—and since we ought to pursue that line which is most conformable to equity, when the will of the legislature or of the contracting parties is not exactly determined and precisely known,—we should, when there is question of odious things, interpret the terms in the most limited sense: we may even, to a certain degree, adopt a figurative meaning, in order to avert the oppressive consequences of the proper and literal sense, or any thing of an odious nature, which it would involve: for we are to favour equity, and to do away every thing odious, as far as that can be accomplished without going in direct opposition to the tenor of the instrument, or visibly wresting the text. Now neither the limited nor even the figurative sense offers any violence to the text. If it is said in a treaty, that one of the allies shall assist the other with a certain number of troops at his own expense, and that the latter shall furnish the same number of auxiliary troops at the expense of the party to whom they are sent, there is something odious in the engagement of the former ally, since he is subject to a greater burthen than the other: but the terms being clear and express, there is no room for any restrictive interpretation. But if it were stipulated in this treaty, that one of the allies shall furnish a body of ten thousand men, and the other only of five thousand, without mentioning the expense, it ought to be understood that the auxiliary troops shall be supported at the expense of the ally to whose assistance they are sent; this interpretation being necessary, in order that the inequality between the contracting powers may not be carried too far. Thus the cession of a right or of a province, made to a conqueror in order to obtain peace, is interpreted in its most confined sense. If it be true that the boundaries of Acadia have always been uncertain, and that the French were the lawful possessors of it, that nation will be justified in maintaining that their cession of Acadia to the English by the treaty of Utrecht did not extend beyond the narrowest limits of that province.
In point of penalties, in particular when they are really odious, we ought not only to restrict the terms of the law, or of the contract, to their most limited signification, and even adopt a figurative meaning, according as the case may require or authorise it,—but also to admit of reasonable excuses; which is a kind of restrictive interpretation, tending to exempt the party from the penalty.
The same conduct must be observed with respect to what may render an act void and without effect. Thus, when it is agreed that the treaty shall be dissolved whenever one of the contracting parties fails in the observance of any article of it, it would be at once both unreasonable and contrary to the end proposed in making treaties, to extend that clause to the slightest faults, and to cases in which the defaulter can allege well-grounded excuses.
§309. Examples.Grotius proposes the following question—“Whether, in a treaty which makes mention of allies, we are to understand those only who were in alliance at the time when the treaty was made, or all the allies present and future?”* And he gives, as an instance, that article of the treaty concluded between the Romans and Carthaginians, after the war of Sicily,—that “neither of the two nations should do any injury to the allies of the other.” In order to understand this part of the treaty, it is necessary to call to mind the barbarous law of nations observed by those ancient people. They thought themselves authorised to attack, and to treat as enemies, all with whom they were not united by any alliance. The article therefore signifies, that on both sides they should treat as friends the allies of their ally, and abstain from molesting or invading them: upon this footing it is in all respects so favourable, so conformable to humanity, and to the sentiments which ought to unite two allies, that it should, without hesitation, be extended to all the allies, present and future. The clause cannot be said to involve any thing of an odious nature, as cramping the freedom of a sovereign state, or tending to dissolve an alliance: for, by engaging not to injure the allies of another power, we do not deprive ourselves of the liberty to make war on them if they give us just cause for hostilities; and when a clause is just and reasonable, it does not become odious from the single circumstance that it may perhaps eventually occasion a rupture of the alliance. Were that to be the case, there could be no clause whatever, that might not be deemed odious. This reason, which we have touched upon in the preceding section and in §304, holds good only in doubtful cases: in the case before us, for instance, it ought to have prevented a too hasty decision that the Carthaginians had causelessly attacked an ally of the Romans. The Carthaginians, therefore, might, without any violation of the treaty, attack Saguntum, if they had lawful grounds for such an attack, or (in virtue of the voluntary law of nations) even apparent or specious grounds (Prelim. §21). But they might have attacked in the same manner the most ancient ally of the Romans; and the Romans might also, without breaking the treaty of peace, have confined themselves to the succouring of Saguntum. At present, treaties include the allies on both sides: but this does not imply that one of the contracting powers may not make war on the allies of the other if they give him cause for it,—but simply, that, in case of any quarrel arising between them, each of the contracting parties reserves to himself a power of assisting his more ancient ally: and, in this sense, the future allies are not included in the treaty.
Another example mentioned by Grotius is also taken from a treaty concluded between Rome and Carthage. When the latter city was reduced to extremities by Scipio Aemilianus, and obliged to capitulate,87 the Romans promised “that Carthage should remain free, or in possession of the privilege of governing herself by her own laws.”* In the sequel, however, those merciless conquerors pretended that the promised liberty regarded the inhabitants, and not the city: they insisted that Carthage should be demolished, and that the wretched inhabitants should settle in a place at a greater distance from the sea. One cannot read the account of this perfidious and cruel treatment, without being concerned that the great, the amiable Scipio was obliged to be the instrument of it. To say nothing of the chicanery of the Romans respecting the meaning to be annexed to the word “Carthage,”—certainly, the “liberty” promised to the Carthaginians, though narrowly circumscribed by the existing state of affairs, should at least have extended to the privilege of remaining in their city. To find themselves obliged to abandon it and settle elsewhere,—to lose their houses, their port, and the advantages of their situation,—was a subjection incompatible with the smallest degree of liberty, and involved such considerable losses as they could not have bound themselves to submit to, unless by a positive engagement in the most express and formal terms.
§310. How we ought to interpret deeds of pure liberality.Liberal promises, benefactions, and rewards, naturally come under the class of favourable things, and receive an extensive interpretation, unless they prove onerous or unreasonably chargeable to the benefactor, or that other circumstances evidently shew they are to be taken in a limited sense. For kindness, benevolence, beneficence, and generosity, are liberal virtues; they do not act in a penurious manner, and know no other bounds than those set by reason. But if the benefaction falls too heavy upon him who grants it, in this respect it partakes of the odious; and, in case of doubt, equity will not admit the presumption that it has been granted or promised in the utmost extent of the terms: we ought therefore, in such case, to confine ourselves to the most limited signification which the words are capable of receiving, and thus reduce the benefaction within the bounds of reason. The same mode should be adopted when other circumstances evidently point out the more limited signification as the more equitable.
Upon these principles, the bounties of a sovereign are usually taken in the fullest extent of the terms.* It is not presumed that he finds himself over-burthened by them: it is a respect due to majesty, to suppose that he had good reasons to induce him to confer them. They are therefore, in their own nature, altogether favourable; and, in order to restrict them, it must be proved that they are burthensome to the prince, or prejudicial to the state. On the whole, we ought to apply to deeds of pure liberality the general rule established above (§270); if those instruments are not precise and very determinate, they should be interpreted as meaning what the author probably had in his mind.
§311. Collision of laws or treaties.Let us conclude this subject of interpretation with what relates to the collision or opposition of laws or treaties. We do not here speak of the collision of a treaty with the law of nature: the latter is unquestionably paramount, as we have proved elsewhere (§§160, 161, 170, and 293). There is a collision or opposition between two laws, two promises, or two treaties, when a case occurs in which it is impossible to fulfil both at the same time, though otherwise the laws or treaties in question are not contradictory, and may be both fulfilled under different circumstances. They are considered as contrary in this particular case; and it is required to shew which deserves the preference, or to which an exception ought to be made on the occasion. In order to guard against all mistake in the business, and to make the exception conformably to reason and justice, we should observe the following rules.
§312. First rule in cases of collision.1. In all cases where what is barely permitted is found incompatible with what is positively prescribed, the latter claims a preference: for the mere permission imposes no obligation to do or not to do: what is permitted is left to our own option: we are at liberty either to do it or forbear to do it. But we have not the same liberty with respect to what is prescribed: we are obliged to do that: nor can the bare permission in the former case interfere with the discharge of our obligation in the latter; but, on the contrary, that which was before permitted in general, ceases to be so in this particular instance, where we cannot take advantage of the permission without violating a positive duty.
§313.2d Rule.2. In the same manner, the law or treaty which permits, ought to give way to the law or treaty which forbids: for the prohibition must be obeyed; and what was, in its own nature, or in general, permitted, must not be attempted when it cannot be done without contravening a prohibition: the permission, in that case, ceases to be available.
§314.3d Rule.3. All circumstances being otherwise equal, the law or the treaty which ordains, gives way to the law or the treaty which forbids. I say, “all circumstances being otherwise equal”; for many other reasons may occur, which will authorise the exception being made to the prohibitory law or treaty. The rules are general; each relates to an abstract idea, and shews what follows from that idea, without derogation to the other rules. Upon this footing, it is evident, that, in general, if we cannot obey an injunctive law without violating a prohibitory one, we should abstain from fulfilling the former: for the prohibition is absolute in itself, whereas every precept, every injunction, is in its own nature conditional, and supposes the power, or a favourable opportunity, of doing what is prescribed. Now when that cannot be accomplished without contravening a prohibition, the opportunity is wanting, and this collision of laws produces a moral impossibility of acting; for what is prescribed in general, is no longer so in the case where it cannot be done without committing an action that is forbidden.* Upon this ground rests the generally received maxim that we are not justifiable in employing unlawful means to accomplish a laudable end,—as, for instance, in stealing with a view to give alms. But it is evident that the question here regards an absolute prohibition, or those cases to which the general prohibition is truly applicable, and therefore equivalent to an absolute one: there are, however, many prohibitions to which circumstances form an exception. Our meaning will be better explained by an example. It is expressly forbidden, for reasons to me unknown, to pass through a certain place under any pretence whatsoever. I am ordered to carry a message; I find every other avenue shut; I therefore turn back rather than take my passage over that ground which is so strictly forbidden. But if the prohibition to pass be only a general one with a view to prevent any injury being done to the productions of the soil, it is easy for me to judge that the orders with which I am charged ought to form an exception.
As to what relates to treaties, we are not obliged to accomplish what a treaty prescribes, any farther than we have the power. Now we have not a power to do what another treaty forbids: wherefore, in case of collision, an exception is made to the injunctive treaty, and the prohibitory treaty has a superior claim to our observance,—provided, however, that all circumstances be in other respects equal; for it will presently appear, for instance, that a subsequent treaty cannot derogate from a prior one concluded with another state, nor hinder its effect directly or indirectly.
§315.4th Rule.4. The dates of laws or treaties furnish new reasons for establishing the exception in cases of collision. If the collision happen between two affirmative laws, or two affirmative treaties concluded between the same persons or the same states, that which is of more recent date claims a preference over the older one: for it is evident, that, since both laws or both treaties have emanated from the same power, the subsequent act was capable of derogating from the former. But still this is on the supposition of circumstances being in other respects equal.—If there be a collision between two treaties made with two different powers, the more ancient claims the preference: for, no engagement of a contrary tenor could be contracted in the subsequent treaty; and if this latter be found, in any case, incompatible with that of more ancient date, its execution is considered as impossible, because the person promising had not the power of acting contrary to his antecedent engagements.
§316.5th Rule.5. Of two laws or two conventions, we ought (all other circumstances being equal) to prefer the one which is less general, and which approaches nearer to the point in question: because special matter admits of fewer exceptions than that which is general; it is enjoined with greater precision, and appears to have been more pointedly intended. Let us make use of the following example from Puffendorf:* —One law forbids us to appear in public with arms on holidays: another law commands us to turn out under arms, and repair to our posts, as soon as we hear the sound of the alarm-bell. The alarm is rung on a holiday. In such case we must obey the latter of the two laws, which creates an exception to the former.
§317.6th Rule.6. What will not admit of delay, is to be preferred to what may be done at another time. For this is the mode to reconcile every thing, and fulfil both obligations; whereas if we gave the preference to the one which might be fulfilled at another time, we would unnecessarily reduce ourselves to the alternative of failing in our observance of the other.
§318.7th Rule.7. When two duties stand in competition, that one which is the more considerable, the more praiseworthy, and productive of the greater utility, is entitled to the preference. This rule has no need of proof. But as it relates to duties that are equally in our power, and, as it were, at our option, we should carefully guard against the erroneous application of it to two duties which do not really stand in competition, but of which the one absolutely precludes the other,—our obligation to fulfil the former wholly depriving us of the liberty to perform the latter. For instance, it is a more praiseworthy deed to defend one nation against an unjust aggressor, than to assist another in an offensive war. But if the latter be the more ancient ally, we are not at liberty to refuse her our assistance and give it to the former; for we stand pre-engaged. There is not, strictly speaking, any competition between these two duties: they do not lie at our option: the prior engagement renders the second duty, for the present, impracticable. However, if there were question of preserving a new ally from certain ruin, and that the more ancient ally were not reduced to the same extremity, this would be the case to which the foregoing rule should be applied.
As to what relates to laws in particular, the preference is undoubtedly to be given to the more important and necessary ones. This is the grand rule to be observed whenever they are found to clash with each other; it is the rule which claims the greatest attention, and is therefore placed by Cicero at the head of all the rules he lays down on the subject.* It is counteracting the general aim of the legislature, and the great end of the laws, to neglect one of great importance, under pretence of observing another which is less necessary, and of inferior consequence: in fact, such conduct is criminal; for, a lesser good, if it exclude a greater, assumes the nature of an evil.
§319.8th Rule.8. If we cannot acquit ourselves at the same time of two things promised to the same person, it rests with him to choose which of the two we are to perform; for he may dispense with the other on this particular occasion; in which case there will no longer be any collision of duties. But if we cannot obtain a knowledge of his will, we are to presume that the more important one is his choice; and we should of course give that the preference. And, in case of doubt, we should perform the one to which we are the more strongly bound;—it being presumable that he chose to bind us more strongly to that in which he is more deeply interested.
§320.9th Rule.9. Since the stronger obligation claims a preference over the weaker,—if a treaty that has been confirmed by an oath happens to clash with another treaty that has not been sworn to,—all circumstances being in other respects equal, the preference is to be given to the former; because the oath adds a new force to the obligation. But as it makes no change in the nature of treaties (§§225, &c.), it cannot, for instance, entitle a new ally to a preference over a more ancient ally whose treaty has not been confirmed by an oath.
§321.10th Rule.10. For the same reason, and, all circumstances being in other respects equal, what is enjoined under a penalty claims a preference over that which is not enforced by one,—and what is enjoined under a greater penalty, over that which is enforced by a lesser; for the penal sanction and convention give additional force to the obligation: they prove that the object in question was more earnestly desired,* and the more so in proportion as the penalty is more or less severe.
§322. General remark on the manner of observing all the preceding rules.All the rules contained in this chapter ought to be combined together, and the interpretation be made in such manner as to accord with them all, so far as they are applicable to the case. When these rules appear to clash, they reciprocally counterbalance and limit each other, according to their strength and importance, and according as they more particularly belong to the case in question.
[* ] Standum omnino est iis, quae verbis expressis, quorum manifestus est significatus, indicata fuerunt, nisi omnem a negotiis humanis certitudinem removere volueris. Wolf. Jus Nat. par. vii. n. 822. [[Note added in 1773/1797 editions.]]
[† ] [[Justinian’s Digest. lib. ii. tit. xiv. de Pactis, leg. 39.—See likewise Digest. lib. xviii. tit. i. de Contrahenda Emptione, leg. 21. Labeo scripsit obscuritatem pacti nocere potius debere venditori, qui id dixerit, quam emptori; quia potuit re integra apertius dicere. “Labeo wrote that obscurity in a contract should harm the vendor who had spoken it rather than the purchaser, because he could have spoken more clearly in the whole matter” (trans. Eds.).]]
[69. ] “An obscure contract [should] injure those in whose power it was to write the law more clearly.” Digesta Justiniana, liber 18.1.21.
[* ] History of Queen Elizabeth.
[70. ] Muhammad II, sultan of the Ottoman Empire, r. 1451–81.
[71. ] Negropont, an island in the Aegean Sea, was conquered by the Turks in 1470.
[72. ] In 1400.
[* ] See Puffendorf’s Law of Nature and Nations, book v. chap xii. §3.—La Croix, in his Hist. of Timurbec, book v. ch. xv. speaks of this cruelty of Timurbec or Tamerlane towards 4,000 Armenian horsemen, but says nothing of the perfidy which others attribute to him.
[† ] Fraus enim adstringit, non dissolvit perjurium. De Offic. lib. iii. cap. xxxii.
[73. ] Jacques Cujas, 1520–90, French jurist, professor at Toulouse, and counsellor to the Parlement of Grenoble.
[* ] The French expression, “ourdir une trame,” which is here rendered “hatch a plot,” literally signifies “to lay the warp of a web”;—“fire and sword,” literally, “fire and steel” (or iron). [[Note added in 1797 edition.]]
[74. ] Cleomenes, king of Sparta, died ca. 490 bc
[* ] Puffendorf [[Of the Law of Nature and Nations, lib. v. cap. xii. §7.]]
[75. ] “According to the relevant subject.”
[* ] [[History of the Peloponnesian War, Lib. iv. cap. xcviii.]]
[* ] Digest [[of Justinian. Lib. i. tit. iii. De Legibus, leg. 24.]]
[76. ] “It is impertinent to give an opinion or make a response on any detail put forward without examining the whole law” (trans. Eds.).
[* ] Quid? verbis satis hoc cautum erat? Minime. Quae res igitur valuit? Voluntas: quae si, tacitis nobis, intelligi posset, verbis omnino non uteremur. Quia non potest, verba reperta sunt, non quae impedirent, sed quae indicarent voluntatem. [[“Well, did the wording of the will provide adequately for this situation? Far from it. Then what was the deciding consideration? Intention; for if our intention could be made clear without speaking, we should not use words at all; but because it cannot, words have been invented, not to conceal but to reveal intention.” Cicer. Orat. pro Caecina 53.]]
[* ] Puffendorf [[Of the Law of Nature and Nations, lib. v. cap. xii. §18. He quotes Ammianus Marcellinus, lib. xxii. cap. xvi.]]
[† ] Puffend. ibid.—Herodotus, lib. vi.—Five drachmae amounted to little more than three shillings sterling.
[77. ] Tiberius, emperor of Rome, r. ad 14–37.
[78. ] Lucius Aelius Sejanus (20 bc–ad 31), appointed praetorian prefect by Tiberius.
[* ] Tacit. Annal. lib. v. 9.
[† ] [[Seneca, De beneficiis Lib. iv. Declam. xxvii.]]
[79. ] Victor Amadeus II, duke of Savoy, r. 1675–1720.
[80. ] Charles Emmanuel III, son of Victor Amadeus II and king of Sardinia, r. 1730–73.
[81. ] Gustavus Adolphus, king of Sweden, was killed in the battle of Lützen in 1632.
[82. ] “In every convention it must be understood that material conditions must remain the same” (trans. Eds.).
[83. ] Titus Flavius Vespasianus (ad 39–81), son of Vespasian (r. ad 69–79), succeeded his father as Roman emperor, r. ad 79–81.
[84. ] Servius Sulpicius Galba (3 bc–ad 69), Roman emperor, r. ad 68–69.
[* ] Digest [[of Justinian. lib. xxvi. tit. iii. De Confirm. Tutor. leg. 10.]]
[* ] See Barbeyrac’s remarks on Grotius and Puffendorf.
[85. ] Jean Barbeyrac (1674–1744) commented on Grotius’s De jure belli in his edition of 1720 (Amsterdam) and on Pufendorf’s Les devoirs de l’homme et du citoien in his edition of 1707 (Amsterdam).
[* ] Quintilian, Instit. Orat. lib. vii. cap. iv.
[86. ] Lucius Sergius Catilina, ca. 108–62 bc, Roman politician and soldier notoriously denounced by Cicero for seeking to overthrow the republic.
[* ] Orat. pro Caecina, cap. xxiii.
[* ] Digest [[of Justinian. lib. xliii. tit. xvi. De Vi, et Vi Armata, legg. 1 et 3.]]
[* ] Lib. ii. cap. xvi. §13 [[Law of War and Peace.]]
[87. ] Under the Roman general Scipio Aemilianus, the city of Carthage was destroyed in 146 bc
[* ] Αυτονομος. Appian. de Bello Punico.
[* ] Such is the decision of the Roman law.—Javolenus [[Javolenus Priscus, Roman jurist, praetor, and proconsul, ad 60–120 says: “Beneficium imperatoris quam plenissime interpretari debemus”; and he gives this reason for it, “quod a divina ejus indulgentia proficiscatur.” “We should interpret the bounty of the emperor as generously as possible ... because it proceeds from his divine permissiveness.” Digest of Justinian. lib. i. tit. iv. de Constit. Princ. leg. 3.]]
[* ] The prohibitory law creates, in that particular instance, an exception to the injunctive law. “Deinde utra lex jubeat, utra vetet. Nam saepe ea quae vetat, quasi exceptione quadam corrigere videtur illam quae jubet.” [[“Then, which law enjoins and which prohibits, for frequently the law that prohibits seems to have amended the law that enjoins by making an exception.” Cicero, de Inventione, lib. ii. 145 146.]]
[* ] Jus Gent. [[De jure naturae et gentium lib. v. cap. xii. §23.]]
[* ] “Primum igitur leges oportet contendere, considerando utra lex ad majores, hoc est, ad utiliores, ad honestiores, ac magis necessarias res pertineat. Ex quo conficitur ut, si leges duae, aut si plures, aut quotquot erunt, conservari non possint quia discrepent inter se, ea maxime conservanda putetur, quae ad maximas res pertinere videatur.” [[“In the first place then, one should compare the laws by considering which one deals with the most important matters, that is, the most expedient, honorable, or necessary. The conclusion from this is that if two laws (or whatever number there may be if more than two) cannot be kept because they are at variance, the one is thought to have the greatest claim to be upheld which has reference to the greatest matters.” De inventione II.145. Cicero, ubi supra.]]
[* ] This is also the reason which Cicero gives: “Nam maxime conservanda est ea [lex] quae diligentissime sancta est.” [[“For that law is to be upheld, in which the penalties are most carefully prescribed.” De inventione II.146. Cicero, ubi supra.]]