rules of in

tion:

CHAP. XVII.

Of the Interpretation of Treaties.

F the ideas of men were always diftinct and perfectly deterNecefity of Iminates if, for the exprethon of those ideas, they had none eftablishing but proper words, no terms but fuch as were clear, precise, and terpreta fufceptible only of one fenfe,-there would never be any difficulty in difcovering their meaning in the words by which they intended to exprefs it: nothing more would be neceffary, than to understand the language. But, even on this fuppofition, the art of interpretation would ftill not be ufelefs. In conceffions, conventions, and treaties, in all contracts, as well as in the laws, it is impoffible to forefee and point out all the particular cafes that may arife: we decree, we ordain, we agree upon certain things, and exprefs them in general terms; and though all the expreffions of a treaty fhould be perfectly clear, plain, and determinate, the true interpretation would ftill confift in making, in all the particular cafes that prefent themselves, a juft application of what has been decreed in a general manner. But this is not all :-conjunctures vary, and produce new kinds of cafes, 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 legiflature. Between different clauses, there will be found contradictions and inconfiftencies, real or apparent; and the question is, to reconcile fuch claufes, and point out the path to be pursued. But the cafe is much worse if we confider that fraud feeks to take advantage even of the imperfection of language, and that men defignedly throw obfcurity and ambiguity into their treaties, in order to be provided with a pretence for eluding them upon occafion. It is therefore neceflary to establish rules founded on reafon, and authorised by the law of nature, capable of diffufing light over what is obfcure, of determining what is uncertain, and of fruftrating 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 juftice and equity which are calculated to reprefs fraud, and to prevent the effect of its artifices.

§ 263.

is not al

The first general maxim of interpretation is, that It is not alift General lowable to interpret what has no need of interpretation. When a maxim: it deed is worded in clear and precife terms,-when its meaning is lowable to evident, and leads to no abfurd conclufion,-there can be no interpret reafon for refusing to admit the meaning which fuch deed natuno need of rally prefents. To go elsewhere in fearch of conjectures in orinterpreta- der 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 ufelefs. However luminous each claufe may

what has

tion.

be,

be, however clear and precife the terms in which the deed is couched,—all this will be of no avail, if it be allowed to go in queft of extraneous arguments to prove that it is not to be underftood in the fenfe which it naturally prefents *.

maxim: if

have ex

it is to his

own detri

Those cavillers, who difpute the sense of a clear and determi- § 264. nate article, are accustomed to seek their frivolous fubterfuges in 2d General the pretended intentions and views which they attribute to its au- he who thor. It would be very often dangerous to enter with them into could and the difcuffion of thofe fuppofed views, that are not pointed out, uht to in the piece itself. The following rule is better calculated to foil pla ned fuch cavillers, and will at once cut fhort all chicanery:-If he him lf, has who could and ought to have explained himself clearly and fully, has not done it, not done it, it is the worfe for him: he cannot be allowed to introduce fubfequent reftrictions which he has not expressed. This is a ment. maxim of the Roman law: Pactionem obfcuram iis nocere, in quorum fuit poteftate legem apertius confcriberet. The equity of this rule is glaringly obvious, and its neceffity is not less evident. There will be no fecurity in conventions, no ftability in grants or conceffions, if they may be rendered nugatory by fubfequent limitations, which ought to have been originally specified in the deed, if they were in the contemplation of the contracting parties.

maxim:

parties has

The third general maxim, or principle, on the fubject of in- 265. terpretation is, that Neither the one nor the other of the parties in- 3d General terested in the contract has a right to interpret the deed or treaty ac- neither of cording to his own fancy. For if you are at liberty to affix what- the conever meaning you please to my promise, you will have the power tracting of obliging me to do whatever you choofe, contrary to my inten- a right to tion, and beyond my real engagements: and on the other hand, interpret if I am allowed to explain my promifes as I please, I may render the treaty them vain and illufory, by giving them a meaning quite different to his own from that which they prefented to you, and in which you must fancy. have understood them at the time of your accepting them.

according

Jai maxim

On every occafion when a perfon could and ought to have made $266. known bis intention, we affume for true against him what he has 4th Gene fufficiently declared. This is an inconteftable principle, applied what is fufto treaties; for if they are not a, vain play of words, the con- ficiently tracting parties ought to exprefs themselves in them with truth, declared, is and according to their real intentions. If the intention which is for true. fufficiently declared were not to be taken of course as the true intention of him who fpeaks and enters into engagements, it would be perfectly useless to form contracts or treaties.

to be taken

But it is here afked, which of the contracting parties ought to $267. have his expreffions confidered as the more decifive, with refpect We ought to the true meaning of the contract,-whether we should lay a rather to

to attend

the words

* Standum omnino est iis, quæ verbis expreffis, quorum manifeftus eft fignifica- of the pertus, indicata fuerunt, nifi omnem a negotiis humanis certitudinem removere volue, fon promifris. WOLF. Jus Nat. pars vii. n. 822. ing, than t + Digest lib ii. tit. xiv. de Pactis, leg. 39.-See likewife Digest. lib. xviii. tit. i. de thofe of Contrahenda Emptione, leg. 21. Labeo fcripfit obfcuritatem pacti nocere potius de- the party bere venditori, qui id dixerit, quam emptori; quia potuit re integra apertius dicere. ftipulating

R 3

greater

$268. 5th Gene

ral maxim: the inter

made ac

cording to

greater ftrefs on the words of him who makes the promise than on thofe of the party who ftipulates for its performance?-As the force and obligation of every contract arifes from a perfect promife, and the perfon who makes the promise is no further engaged than his will is fufficiently declared, it is very certain, that, in order to difcover the true meaning of the contract, attention ought principally to be paid to the words of the promifing party. For he voluntarily binds himself by his words; and we take for true against him, what he has fufficiently declared. This queftion feems to have originated from the manner in which conventions are fometimes made: the one party offers the conditions, and the other accepts them; that is to fay, the former proposes what he requires that the other fhall 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 principa! ftrefs on the expreffions of the latter; but this is becaufe the perfon promifing is confidered as merely repeating them in order to form his promife. The capitulations of belieged towns may here ferve us for an example. The befieged party propofes the conditions on which he is willing to furrender the place: the belieger accepts them the expreffions of the former lay no obligation on the latter, unless fo far as he adopts them. He who accepts the conditions is in reality the promifing party; and it is in his words that we ought to feek for the true meaning of the articles, whether he has himfelf chofen and formed his expreflions, or adopted thofe of the other party by referring to them in his promife. But till we must bear in mind the maxim above laid down, viz. that what he has fufficiently declared, is to be taken as true against him. I proceed to explain myfelf more particularly on this fubject.

:

In the interpretation of a treaty, or of any other deed whatfoever, the question is, to difcover what the contracting parties have agreed upon,-to determine precifely, on any particular ocpretation cafion, what has been promifed and accepted,-that is to fay, not ought to be only what one of the parties intended to promife, but also what the other muft reafonably and candidly have fuppofed to be procertain mifed to him,--what has been fufficiently 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 underflood by the parties concerned, at the time when the deed was drawn up and accepted. This is a fifth principle.

rules.

As thefe rules are founded on right reafon, and are confequently approved and prefcribed by the law of nature, every man, every fovereign, is obliged to admit and to follow them. Unless certain rules be admitted for determining the fenfe in which the expreffions are to be taken, treaties will be only empty words; nothing can be agreed upon with fecurity, and it will be

almoft

almost ridiculous to place any dependence on the effect of con

ventions.

The faith of treaties

But as fovereigns acknowledge no common judge, no fuperior $269. that can oblige them to adopt an interpretation founded on juft rules, the faith of treaties conftitutes, in this refpect, all the fe- lays an oblicurity of the contracting powers. That faith is no lefs violated gation to by a refufal to admit an evidently fair interpretation, than by an follow thefe open infraction. It is the fame injuftice, the fame want of goodfaith; nor is its turpitude rendered lefs odious by being cloaked up in the fubtilties of fraud.

rules.

General

rule

Let us now enter into the particular rules on which the inter-$279. pretation ought to be formed, in order to be juft and fair. le of inSince the fole object of the lawful interpretation of a deed ought terpretas to be the difcovery of the thoughts of the author or authors of tion. that deed,-whenever we meet with any obfcurity in it, we are to confider what probably were the ideas of thofe who drew up the deed, and to interpret it accordingly. This is the general rule for all interpretations. It particularly ferves to afcertain the meaning of particular expreffions whofe fignification is not fufficiently determinate. Purluant to this rule, we fhould take thofe cxpreffions in their utmoft latitude when it feems probable that the perfon fpeaking had in contemplation every thing which, in that extenfive fenfe, they are capable of defignating: and, on the other hand, we ought to reftrict their meaning, if the author appears to have confined his idea to what they comprehend in their more limited fignification. Let us fuppofe that a husband has bequeathed to his wife all his money. It is required to know whether this expreffion means only his ready money, or whether it extends alfo to that which is lent out, and is due on notes and other fecurities. If the wife is poor,-if fhe was beloved by her hufband, if the amount of the ready money be inconfiderable, and the value of the other property greatly fuperior to that of the money both in fpecie and in paper,-there is every reafon to prefume that the hufband meant to bequeath to her as well the moncy 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 fpecie be very confiderable, 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 moncy

only.

By the fame rule, we are to interpret a claufe in the utmost latitude that the ftrict 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 muft interpret it in a more limited fenfe when it appears probable that the author of the claufe did not mean to extend it to every thing which the ftrict propriety of the terms might be made to include. As for inftance, a father, who has an only fon, bequeaths to the daughter of his friend all his jewels. He has a fword enriched with diamonds, given him by a fovereign prince.

R 4

$271.

The terms explained

are to be

ably to common

ulage.

§ 272.

tion of an

prince. In this cafe it is certainly very improbable that the teftator had any intention of making over that honourable badge of diftinction to a family of aliens. That fword, therefore, together with the jewels with which it is ornamented, must be excepted from the legacy, and the meaning of the words be reftricted to his other jewels. But if the teftator has neither fon nor heir of his own name, and bequeaths his property to a ftranger, there is no reafon to limit the fignification of the terms; they thould be taken in their full import, it being probable that the teftator used them in that sense.

The contracting parties are obliged to exprefs themfelves in fuch manner that they may mutually underftand each other. This is evident from the very nature of the tranfaction. Those who form the contract, concur in the fame intentions; they agree in defiring the fame thing; and how fhall they agree in this inftance, if they do not perfectly understand each other? Without this, their contract will be no better than a mockery or a fnare. If then they ought to speak in fuch a manner as to be understood, it is neceffary that they should employ the words in their proper fignifica tion, the fignification which common ufage has affixed to them, and that they annex an eftablished meaning to every term, every exprefhon, they make use of. They must not, defignedly and without mentioning it, deviate from the common ufage and the appropriate meaning of words: and it is prefumed that they have conformed to eftablifhed cuftom in this particular, as long as no cogent reasons can be adduced to authorise a prefumption to the contrary; for the prefumption is, in general, that things have been done as they ought. From all thefe inconteftable truths, refults this rule: In the interpretation of treaties, compacts, and promifes, we ought not to deviate from the common use of the language, unless we have very firong reafons for it. In all human affairs, where abfolute certainty is not at hand to point out the way, we must take probability for our guide. In moft cafes, it is extremely probable that the parties have expreffed themselves conformably to the established ufage: and fuch probability ever affords a strong prefumption, which cannot be over-ruled but by a ftill stronger prefumption to the contrary. Camden gives us a treaty, in which it is exprefsly faid that the treaty fhall be precifely understood according to the force and appropriate fignification of the terms. After fuch a claufe, we cannot, under any pretence, deviate from the proper meaning which cuftom has affixed to the terms,-the will of the contracting parties being thereby formally declared in the most unambiguous manner.

The ufage we here fpeak of, is that of the time when the Interpreta treaty, or the deed, of whatever kind, was drawn up and concient trea- cluded. Languages inceffantly vary, and the fignification and tics. force of words changes with time. When, therefore, an ancient deed is to be interpreted, we should be acquainted with the com

* Hiftory of Queen Elizabeth.

on