The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• The Whole Duty of Man
• The Author’s Preface
• Book I
• Chapter I: Of Human Actions In General, the Principles Of  ’em, and How to Be Accounted For, Or Imputed
• Chapter II: Of the Rule of Human Actions, Or of Laws In General; and the Different Qualifications of Those Actions
• Chapter III: Of the Law of Nature In General
• Chapter IV: Of the Duty of Man Towards God, Or, Concerning Natural Religion
• Chapter V: Of the Duty of a Man Towards Himself  19
• Chapter VI: Of the Duty of One Man to Another, and First of Doing No Injury to Any Man
• Chapter VII: The Natural Equality of Men to Be Acknowledged
• Chapter VIII: Of the Mutual Duties of Humanity
• Chapter IX: The Duty of Men In Making Contracts
• Chapter X: The Duty of Men In Discourse
• Chapter XI: The Duty of Those Which Take an Oath
• Chapter XII: Duties to Be Observ’d In Acquiring Possession of Things
• Chapter XIII: The Duties Which Naturally Result From Man’s Property In Things
• Chapter XIV: Of the Price and Value of Things
• Chapter XV: Of Those Contracts In Which the Value of Things Is Pre-supposed; and of the Duties Thence Arising
• Chapter XVI: The Several Methods By Which the Obligations Arising From Contracts Are Dissolved
• Chapter XVII: Of Meaning, Or Interpretation
• Book Ii
• Chapter I: Of the Natural State of Men
• Chapter II: Of the Duties of the Married State
• Chapter III: Duty of Parents and Children
• Chapter IV: The Duties of Masters and Servants
• Chapter V: The Impulsive Cause of Constituting Communities 18
• Chapter VI: Of the Internal Frame and Constitution of Any State Or Government
• Chapter VII: Of the Several Parts of Government 38
• Chapter VIII: Of the Several Forms of Government 41
• Chapter IX: The Qualifications of Civil Government 47
• Chapter X: How Government, Especially Monarchical, Is Acquired
• Chapter XI: The Duty of Supreme Governours
• Chapter XII: Of the Special Laws of a Community, Relating to the Civil Government 59
• Chapter XIII: Of the Power of Life and Death
• Chapter XIV: Of Reputation
• Chapter XV: Of the Power of Governours Over the Goods of Their Subjects
• Chapter XVI: Of War and Peace
• Chapter XVII: Of Alliances
• Chapter XVIII: The Duty of Subjects
• Two Discourses and a Commentary By Jean Barbeyrac
• Note On the Translation
• The Judgment of an Anonymous Writer On the Original of This Abridgment With Reflections of the Translator, Intended to Clarify Certain of the Author’s Principles
• Discourse On What Is Permitted By the Laws In Which It Is Shown That What Is Permitted By the Laws Is Not Always Just and Moral
• Discourse On the Benefits Conferred By the Laws In Which It Is Shown That a Good Man Should Not Always Take Advantage of the Benefits Conferred On Him By the Laws

chapter xvii

Of Meaning, or Interpretation

I.Rules for Interpretation necessary. L. N. N. l. 5. c. 12.As in all Commands and Directions which Men receive from their Superiors, no other Obligation is derived on them from thence, but such as is conformable to the Will and Intention of the Superior; so likewise, when any Man of his own free Will, sets himself under any Obligation, he is bound only to that which himself intended, when he entered into that Obligation. But then, because one Man cannot make a Judgment of another Man’s Intention, but by such Signs and Actions as are apparent to the Senses; hence, therefore, every one, in foro humano,54 is adjudged, To be obliged to that Thing, which he may fairly be supposed to have suggested by a right Interpretation of the outward Signs made by him. Wherefore ’tis of great Use for the true Understanding both of Laws and Covenants, and for the better Discharging the Duties thence arising, that there should be laid down *Certain Rules for the true Interpretation of Words, especially they being the most common and ordinary Signs whereby we express our Mind and Intention.

II.Popular Terms. L. N. N. l. 5. c. 12. §3.Concerning Common and Vulgar Terms, this is the Rule: Words are generally to be taken in their most proper and receiv’d Signification, which they have not so much from Analogy and Construction of Grammar, or Conformity of Derivation, as by Popular Use and Custom, which is the Sovereign Comptroller and Judge of Speech.

III.Terms of Art. L. N. N. l. 5. c. 12. §4.Terms of Art are to be explain’d according to the Definitions of Persons knowing in each Art. But if those Terms are differently defin’d by several Persons, for the avoiding of Disputes, ’tis necessary that we express in Vulgar Terms, what we mean by such a Word.

IV.Conjectures. L. N. N. l. 5. c. 12. §6.But for discovering the genuine Meaning of Words, ’tis sometimes necessary to make Use of Conjectures, if either the Words in themselves, or the Connexion of them, be ambiguous, and liable to a double Interpretation; or if some Parts of the Discourse seem to contradict the other, yet so as by a fair and true Explanation they may be reconcil’d. For where there is a plain and manifest Contrariety, the latter Contract55 vacates the former.

V.Taken from the Subject Matter. L. N. N. l. 5. c. 12. §7.Now Conjectures of the Mind, and the right Meaning thereof in an ambiguous or intricate Expression, are chiefly to be taken from the Subject Matter, from the Effects and the Accidents or Circumstances. As to the Matter, this is the Rule: Words are generally to be understood according to the Subject Matter. For he that speaks is suppos’d to have always in View the Matter of which he discourses, and therefore agreeably thereunto, the Meaning of the Words is always to be applied.

VI.From the Consequences. L. N. N. l. 5. c. 12.§8.As to the Effects and Consequences, this is the Rule: When Words taken in the literal and simple Sense, admit either of none, or else of some absurd Consequences, we must recede so far from the more receiv’d Meaning, as is necessary for the avoiding of a Nullity or Absurdity.

VII.From Circumstances. L. N. N. l. 5. c. 12. §9.Farthermore, most probable Conjectures may be taken from the Circumstances; because of Consequence every one is presum’d to be consistent with himself. Now these Circumstances are to be consider’d either as to their Place, or only as to the Occasion of them. Concerning the former of these, this is the Rule: If the Sense in any Place of the Discourse be express’d plainly and clearly, the more obscure Phrases are to be interpreted by those plain and familiar ones. To this Rule there is another nearly related: In the Explaining of any Discourse the Antecedents and Consequents must be carefully heeded, to which those Things that are inserted between are presum’d to answer and agree. But concerning the latter, this is the Rule: The obscure Expressions of one and the same Man are to be interpreted by what he has deliver’d more clearly, though it was at another Time and Place; unless it manifestly appears that he has changed his Opinion.

VIII.The Reason of the Thing. L. N. N. l. 5. c. 12. §10.It is likewise of very great Use for finding out the true Meaning, in Laws especially, to examine into the Reason of that Law, or those Causes and Considerations which induced the Legislator to the making thereof; and more particularly when it is evident, that that was the only Reason of the Law. Concerning which, this is the Rule: That Interpretation of the Law is to be followed, which agrees with the Reason of that Law; and the contrary is to be rejected, if it be altogether inconsistent with the same. So likewise when the sole and adequate Reason of the Law ceases, the Law it self ceases. But when there are several Reasons of the same Law, it does not follow, that if one of them ceases, the whole Law ceases too, when there are more Reasons remaining, which are sufficient for the keeping it still in Force. Sometimes also the Will of the Law-giver is sufficient, where the Reason of the Law is conceal’d.

IX.Words of various Signification. L. N. N. l. 5. c. 12. §11.Moreover, it is to be observ’d, That many Words have various Significations, one Meaning being of great Latitude, and the other more strict and confin’d; and then the subject Matter is sometimes of a favourable Nature, sometimes invidious, sometimes between both or indifferent. Those are favourable where the Condition is equal on both Sides, where Regard is had to the publick Good, where Provision is made upon Transactions already ratified, and which tend to the promoting of Peace, and the like. The Invidious, or more distastful, is that which aggrieves one Party only, or one more than the other; that which implies a certain Penalty; that which makes any Transaction of none Effect, or alters what went before; that which promotes Wars and Troubles. That which is between both and Indifferent is, That indeed which makes some Change and Alteration in the former State of Things, but ’tis only for the sake of Peace. Concerning these, this is the Rule: That those Things which admit of a favourable Construction, are to be taken in the largest and most comprehensive Meaning; but those Things which are capable of an unpleasing Construction, in the most literal and strictest Sense of the Words.

X.Conjectures extended. L. N. N. l. 5. c. 12. §11.There are likewise some Kind of Conjectures which are elsewhere to be fetch’d than from the Words, and which are the Occasion that the Interpretation of them is sometimes to be extended, and at other times to be confin’d: Although ’tis more easie to give Reasons why the Explanation thereof should be confin’d and limited, than extended. But the Law may be extended to a Case which is not express’d in the Law, if it be apparent, that the Reason which suits to this Case, was particularly regarded by the Law-giver amongst other Considerations, and that he did design to include the other Cases of the like Nature. The Law also ought to be extended to those Cases wherein the Subtlety of ill Men have found out Tricks in order to evade the Force of the Law.

XI.Conjectures limited. L. N. N. l. 5. c. 12. §19.Now the Reason why some Expressions deliver’d in general Terms should be restrain’d, may happen either from the original Defect of the Will, or from the Repugnancy of some emergent Case to the Will and Intention. That any Person is to be presum’d not at first to have intended any such Thing, may be understood,

• 1. From the Absurdity, which otherwise would follow from thence; and which, ’tis believ’d, no Man in his Wits could design. Hence general Expressions are to be restrain’d, inasmuch as such Absurdity would thence otherwise arise.
• 2. FromWant of that Reason which might chiefly cause him to be of that Mind. Hence in a general Expression, those Cases are not comprehended, which do no ways agree with the sole and adequate Reason of the Law.
• 3. FromDefect of Matter, which always he that speaks, is suppos’d to have consider’d. And therefore all those general Words are to be regarded with relation to the same.

XII.Emergent Cases. L. N. N. l. 5. c. 12. §21.Now that an emergent State of Things is repugnant to the Intention of the Person who made the Constitution, may be discover’d either from Natural Reason, or else from some declared Mark and Signification of his Meaning.

The first happens, when we must exclude Equity, if some certain Cases be not exempted from the universal Law. For Equity is the Correcting of what is defective in the Law by reason of its Universality.

And because all Cases could neither be foreseen, nor set down, because of the infinite Variety of them; therefore when general Words are apply’d to special Cases, those Cases are to be look’d upon as exempt, which the Law-giver himself would likewise have exempted, if he had been consulted upon such a Case.

But we must not have Recourse to Equity, unless there be very sufficient Grounds for it. The Chiefest of which, is, If it be evident, that the Law of Nature would be violated, if we followed too closely the Letter of that Law.

The next Ground of Exception is, That though it be not indeed unlawful to keep to the very Words of the Law; yet, if, upon an impartial Consideration, the Thing should seem too grievous and burdensome, either to Men in general, or to some certain Persons; or else, if the Design be not of that Value, as to be purchas’d at so dear a Rate.

XIII.Exception with Regard to Time. L. N. N. l. 5. c. 12. §23.Lastly, There are also some certain Signs of the Legislator’s Will, from whence it may be certainly collected, That a Case ought to be excepted from the general Expressions of the Law; as when the Words of the Legislator in another Place, though not directly opposite to the Law now supposed to be before us, (for that would be a Contradiction) yet, by some peculiar Incident, and unexpected Event of Things, happen to oppose it in the present Case; or, which amounts to the same Thing, When there are two different Laws, which don’t interfere, and which easily may and ought to be observ’d at different Times, but can’t both of them be satisfy’d, when by some Chance, they call for our Obedience at the same Instant: In this Case we must observe some certain Rules to know which Law or Pact ought to give Place to the other, where both cannot be fulfill’d.

• 1. Thatwhich is only permitted gives place to that which is commanded.*
• 2. Thatwhich ought to be done at this present Time, is preferable to that which may be done at any other Time.
• 3.A Law forbidding the doing any Thing, is to be preferr’d before a Law directing the doing any Thing:^† Or when an affirmative Precept can’t be satisfy’d but at the Expence of a negative one, then the Performance of the Affirmative, shall be deferr’d or put off, ’till it ceases to clash with that other which is Negative. Thus I am commanded to be charitable, and I am commanded not to steal: If I have not wherewith to be charitable, unless I steal to give away, I lye under no Obligation to be charitable at that Time.
• 4. InCovenants and Laws, which are in other respects Equal, that which is particular and applicable to the present Case, takes Place of that which is General.
• 5. Whentwo Duties happen to interfere at the same Point of Time, that which is founded upon Reasons more honourable and beneficial is to be preferr’d.
• 6. Whentwo Covenants, one upon Oath, the other not, can’t be perform’d both together, the former ought to take Place of the latter.*
• 7. AnObligation imperfectly mutual, gives Place to one that is perfectly mutual and binding on both sides.^† Thus what I owe upon Contract, ought to be paid before what is due from me upon free Promise or Gratitude.
• 8. WhatI am obliged to do out of Gratitude, must be preferr’d before what I am obliged to out of Generosity.

Book II

[54.]“In the human forum”; i.e., regardless of how things appear in the sight of God.

[*] Grotius de Jure Belli & Pacis, l. 2. c. 16.

[55.]The word “Contract” has been added, unnecessarily, by the English editors. Tooke’s wording was “the later part must be accounted to contradict that which went before,” which, while not entirely perspicuous, is closer to Pufendorf’s original posterius derogabit prioribus, “the later passage supersedes the earlier.”

[*] 1. This Rule is not true, unless we suppose the Permission general, and the Command particular. For it is certain, on the contrary, that a particular Permission takes Place of a general Command; the Permission in this last Case, being an Exception to the Command; as in the former Case, the Command restrains the Extent of the Permission. [Barbeyrac’s XIII.1, p. 233.]

[†] 3. Here, likewise, it must be distinguish’d, whether these Laws forbidding or commanding, be general or particular, as was laid down in the foregoing Note. [Barbeyrac’s XIII.2, p. 233.]

[*] 6. This Rule is not true, unless in such Case, where all other Circumstances are exactly equal. For when two Covenants are directly opposite, the latter shall be binding, whether the former be upon Oath, or not. But if the Two Covenants are not directly opposite, but only in some Respects different, the particular one shall be preferr’d before the general one. [Barbeyrac’s XIII.3, p. 234.]

[†] 7. These Two last Rules are comprehended in the Fifth, of which they are, as is obvious, only Consequences. [Barbeyrac’s XIII.4, p. 234.]