mon ufe of the terms at the time when it was written; and that knowledge is to be acquired from deeds of the fame period, and from contemporary writers, by diligently comparing them with each other. This is the only fource from which to derive any information that can be depended on. The ufe of the vulgar languages being, as every one knows, very arbitrary, etymological and grammatical investigations, purfued with a view to dif cover the true import of a word in common ufage, would furnish but a vain theory, equally ufelefs and deftitute of proof,

Words are only defigned to exprefs the thoughts; thus the true fignification of an expreffion, in common ufe, is the idea which custom has affixed to that expreffion, It is then a grofs quibble to affix a particular sense to a word, in order to elude the true fenfe of the entire expreffion. Mahomet, emperor of the Turks, at the taking of Negropont, having promifed a man to fpare his head, caufed him to be cut in two through the middle of the body. Tamerlane, after having engaged the city of Sebaftia to capitulate under his promife of fhedding no blood, caused all the foldiers of the garrifon to be buried alive *: grofs fubterfuges which, as Cicero remarks †, only ferve to aggravate the guilt of the perfidious wretch who has recourfe to them. To Jpare the head of any one, and to shed no blood, are expreffions, which, according to common cuftom, and efpecially on fuch an occafion, manifeftly imply to fpare the lives of the parties.

§273

Of quibbles

on words.

A rule on

All these pitiful fubtilties are overthrown by this unerring $74rule: When we evidently fee what is the fenfe that agrees with the this fubject. intention of the contracting parties, it is not allowable to wrest their words to a contrary meaning. The intention, fufficiently 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 fufficiently manifefts, than from the terms in which it is worded: for the terms are nothing without the intention by which they must be dictated.

Mental re

Is it neceffary, in an enlightened age, to fay that mental refer- $275. vations cannot be admitted in treaties? This is manifeft, fince, by fervations. the very nature of the treaty, the parties are bound to exprefs themselves in fuch manner that they may mutually understand each other (§ 271). There is scarcely an individual now to be found, who would not be afhamed of building upon a mental refervation. What can be the use of fuch an artifice, unless to luli the oppofite party into a falfe fecurity, under the vain appearance of a contract? It is then a real piece of knavery.

Interpreta

Technical terms, or terms peculiar to the arts and fciences, $276. ought commonly to be interpreted according to the definition tion of given of them by masters of the art, or perfons verfed in the technical

See Pufferdorf's Law of Nature and Nations, book v. chap. xii. § 3. --- La Croix, in his Hift. of Timurbec, book v. ch. xv. speaks of this cruelty of Timurbec or Tamerlane towards 4000 Armenian horiemen, but fays nothing of the perfidy which others attribute to him.

Fraus enim adftringit, non diffolvit perjurium. De Offic. lib. iii. cap. xxxii.

knowledge

terms.

$277. Of terms whofe figDfication admits of degrees.

$278.

knowledge of the art or fcience to which the terms belong. I fay commonly; for this rule is not fo abfolute, but that we may and even ought to deviate from it, when we have good reasons for fuch deviation; as, for inftance, if it were proved that he who fpeaks in a treaty, or in any other deed, did not understand the art or fcience 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.

If, however, the technical or other terms relate to things that admit of different degrees, we ought not fcrupuloufly to adhere to definitions, but rather to take the terms in a fense agreeable to the context: for, a regular definition describes a thing in its moft perfect flate; and yet it is certain that we do not always mean it in that ftate of its utmost perfection, whenever we fpeak of it. Now the interpretation fhould only tend to the difcovery of the will of the contracting parties ($268): to each term, therefore, we fhould affix that meaning, which the party whofe words we interpret, probably had in contemplation. Thus, when the parties in a treaty have agreed to fubmit their pretenfions to the decifion of two or three able civi lians, it would be ridiculous to endeavour to elude the compromife, under the pretence that we can find no civilian accom plifhed in every point, or to ftrain the terms fo far as to reject all who do not equal Cujas or Grotius. Would he who had ftipu lated for the atliftance of ten thoufand good troops have any reafon to infift upon foldiers of whom the very worst fhould be comparable to the veterans of Julius Cæfar? And if a prince had promifed his ally a good general, must he send him none but a Marlborough or a Turenne?

There are figurative expreílions that are become fo familiar in Ofigura- the common ufe of language, that, in numberlefs inftances, they tive expreffions. fupply the place of proper terms, fo that we ought to take them in a figurative fenfe, without paying any attention to their original, proper, and direct fignification: the fubject of the difcourfe fufficiently indicates the meaning that fhould be affixed to them. To hatch a plot, to carry fire and fword into a country *, are expreflions of this fort; and there fcarcely can occur an inftance where it would not be abfurd to take them in their direct and literal fenfe.

$279. There is not perhaps any language that does not alfo contain quivo words which fignify two or more different things, and phrases cal expretfins. which are fufceptible of more than one fenfe. Thence arifes ambiguity in difcourfe. The contracting parties ought carefully to avoid it. Defignedly to ufe it with a view to elude their engagements in the fequel, is downright perfidy, fince the faith of treaties obliges the contracting parties to exprefs their intentions clearly (§ 271). But if an ambiguous expreffion has found its

* The French expreflion, "ourdir une trame," which is here rendered “batch a plot," literally figuities" to lay the warp of a web ;”—“ fire and fword," literally, “ fire and fleet" (or ion).

way

way into a deed, it is the part of the interpreter to clear up any doubt thereby occafioned.

for thefe

two cafes.

The following is the rule that ought to direct the interpreta- § 280. tion in this as well as in the preceding cafe: We ought always to The rule affix fuch meaning to the expreffions, as is moft fuitable to the fubject or matter in queftion. For, by a true interpretation, we endeavour to discover the thoughts of the perfons fpeaking, or of the contracting parties in a treaty. Now it ought to be prefumed that he who has employed a word which is fufceptible of many different fignifications, has taken it in that which agrees with his fubject. In proportion as he employs his attention on the matter in queftion, the terms proper to exprefs his thoughts prefent themselves to his mind; this equivocal word could therefore only present itself in the fenfe proper to exprefs the thought of him who makes ufe of it, that is, in the fenfe agreeable to the fubject. It would be a feeble objection to this, to allege that a man fometimes defignedly employs equivocal expreffions, with a view of holding out ideas quite different from his real thoughts, and that, in fuch cafe, the fenfe which agrees with the fubject is not that which corresponds with the intention of the perfon speaking. We have already obferved, that whenever a man can and ought to make known his intention, we affume for true against him what he has fufficiently declared (§ 266). And as goodfaith ought to prefide in conventions, they are always interpreted on the fuppofition that it actually did prefide in them. Let us illustrate this rule by examples. The word day is understood of the natural day, or the time during which the fun 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 fubject itself manifeftly fhews that the parties mean the civil day, or the term of twenty-four hours. It was therefore a pitiful fubterfuge, or rather a notorious perfidy, in Cleomenes, when, having concluded a truce of fome days with the people of Argos, and finding them afleep on the third night in reliance on the faith of the treaty, he killed a part of their number, and made the reft prifoners, alleging that the nights were not comprehended in the truce*. The word feel may be understood of the metal itself, or of certain inftruments made of it: -in a convention which ftipulates that the enemy fhall lay down their feel, it evidently means their weapons: wherefore Pericles, in the example related above (§ 233), gave a fraudulent interpretation to those words, fince it was contrary to what the nature of the fubject manifeftly pointed out. Q. Fabius Labeo, of whom we made mention in the fame fection, fhewed equal dishonesty in the interpretation of his treaty with Antiochus; for a fovereign who ftipulates that the half of his fleet or of his veffels fhall be restored to him, undoubtedly means that the other party fhall rettore to him veffels which he can make use of, and not the half

• Puffendorf, lib. v. cap. xii. § 7.

of

§ 28r.

fary to give

every

the fane

deed.

of each veffel, when fawed into two. Pericles and Fabius are alfo condemned by the rule established above (§ 274), which for bids us to wreft the fenfe of the words contrary to the evident intention of the contracting parties.

If any one of thofe expreffions which are fufceptible of different Not necef fignifications occurs more than once in the fame piece, we cannot term the make it a rule to take it every-where in the fame fignification. fame fente For we muft, conformably to the preceding rule, take fuch expreffion, in each article, according as the fubject requires,-pro fubftrata materia, as the mafters of the art fay. The word day, for inftance, has two fignifications, as we have just observed ($280). If therefore it be faid in a convention, that there fhall be a truce of fifty days, on condition that commiffioners from both parties fhall, during eight fucceffive days, jointly endeavour to adjust the difpute,-the fifty days of the truce are civil days of twenty-four hours; but it would be abfurd to understand them in the fame fenfe in the fecond article, and to pretend that the commiffioners fhould labour eight days and nights without intermillion.

6292.

to an abfur

day;

Every interpretation that leads to an abfurdity, ought to be reWe ought je&ed; or, in other words, we fhould not give to any piece a to reject every inter- meaning from which any abfurd confequences would follow, but pretation muft interpret it in such a manner as to avoid abfurdity. As it that leads is not to be prefumed that any one means what is abfurd, it cannot be fuppofed that the perfon speaking intended that his words fhould be understood in a manner from which an abfurdity would follow. Neither is it allowable to prefume that he meant to indulge a fportive levity in a ferious deed: for what is fhameful and unlawful is not to be prefumed. We call abfurd not only what is phyfically impoffible, but what is morally fo,-that is to fay, what is fo contrary to reafon, that it cannot be attributed to a man in his right fenfes. Thofe fanatic Jews, who fcrupled to defend themselves when the enemy attacked them on the fabbath day, gave an abfurd interpretation to the fourth commandment. Why did they not allo abftain from dreffing, walking, and eating? Thefe alfo are "works," if the term be ftrained to its utmost rigour. It is faid that a man in England married three wives, in order that he might not be fubject to the penalty of the law which forbids marrying two. This is doubtless a popular tale, invented with a view to ridicule the extreme circumfpection of the English, who will not allow the smallest departure from the letter in the application of the law. That wife and free people have too often feen, by the experience of other nations, that the laws are no longer a firm barrier and fecure defence, when once the executive power is allowed to interpret them at pleasure. But furely they do not mean that the letter of the law should on any occafion be strained to a sense that is manifeftly abfurd.

The rule we have just mentioned is abfolutely neceffary, and ought to be followed, even when the text of the law or treaty

docs

does not, confidered in itself, prefent either obfcurity or ambiguity in the language. For it must be observed, that the uncertainty of the fenfe we are to give to a law or a treaty, does not folely proceed from the obfcurity or other defect in the expreffion, but alfo from the limited nature of the human mind, which cannot foresee all cafes and circumstances, nor take in at one view all the confequences of what is decreed or promised,—and, finally, from the impoffibility of entering into that immenfe detail. Laws and treaties can only be worded in a general manner; and it is the interpreter's province to apply them to particular cafes, conformably to the intention of the legislature, or of the contracting powers. Now we are not in any cafe to presume that it was their intention to establish an abfurdity: and therefore, when their expreflions, taken in their proper and ordinary meaning, would lead to abfurd confequences, it becomes neceffary to deviate from that meaning, juft fo far as is fufficient to avoid abfurdity. Let us fuppofe 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: furely his orders do not oblige him to leap headlong down: he muft therefore deviate from the right line, fo far as is necessary to avoid the precipice, but no farther.

The application of the rule is more easy, when the expreffions of the law, or of the treaty, are fufceptible of two different meanings. In this cafe we adopt without hefitation that meaning from which no abfurdity follows. In the fame manner, when the expreffion is fuch, that we may give it a figurative fenfe, we ought doubtlefs to do this, when it becomes neceffary, in order to avoid falling into an abfurdity.

and that which ren

fe&.

It is not to be prefumed that fenfible perfons, in treating toge- $283. ther, or tranfacting any other ferious business, meant that the refult of their proceedings fhould prove a mere nullity. The in- ders the act terpretation, therefore, which would render a treaty null and inef- null and ficient, cannot be admitted. We may confider this rule as a branch void of ef of the preceding; for it is a kind of abfurdity to fuppofe that the very terms of a deed fhould reduce it to mean nothing. It ought to be interpreted in fuch a manner, as that it may have its effell, and not prove vain and nugatory: and in this interpretation we proceed according to the mode pointed out in the foregoing fection. In both cafes, as in all interpretations, the question is, to give the words that fenfe which ought to be prefumed moft conformable to the intention of the parties fpeaking. If many different interpretations prefent themfelves, by which we can conveniently avoid conftruing the deed into a nullity or an abfurdity, we are to prefer that which appears the most agreeable to the intention of thofe who framed the deed: the particular circumstances of the cafe, aided by other rules of interpretation, will ferve to point it out. Thucydides relates, that the Athe

Lib. iv. cap. xcviii.