The Law of War and Peace (1625)
by Hugo Grotius
I. How promises are outwardly binding.
1. If we consider only the one who has promised, he is under obligation to perform, of his own free will, that to which he wished to bind himself. ‘In good faith what you meant, not what you said, is to be considered,’ says Cicero. But because internal acts are not of themselves perceivable, and some degree of certainty must be established, lest there should fail to be any binding obligation, in case every one could free himself by inventing whatever meaning he might wish, natural reason itself demands that the one to whom the promise has been made should have the right to compel the promisor to do what the correct interpretation suggests. For otherwise the matter would have no outcome, a condition which in morals is held to be impossible.
It was, perhaps, with this thought in mind that Isocrates, treatment of agreements in his speech Against Callimachus, said: ‘We Men constantly apply this universal rule in our relations with one another,’ as the passage was correctly emended by Peter Faber, a man of most eminent learning; for not only Greeks but also barbarians were meant, as the author had said a little before.
2. Applicable here also is the ancient treaty formula given by ‘Livy: ‘Without wicked deceit, and as these words here today have been most rightly understood.’ The measure of correct interpretation is the inference of intent from the most probable indications..,’These indications are of two kinds, words and implications; and ‘these are considered either separately or together.
II. If other implications are lacking, words are to be understood in their ordinary sense.
If there is no implication which suggests a different ) conclusion, words are to be understood in their natural sense, not according to the grammatical sense which comes from derivation at according to current usage,
- To whose behest belong the law and rule of speech.
The Locrians, then, availed themselves of a stupid evasion in their perfidy; for they took oath that they would keep the agreement as long as they should stand on that ground and should bear heads on their shoulders; then they threw away the earth which they had placed in their shoes, and the heads of garlic which they had laid on their shoulders, as if in that manner they could free themselves from the religious obligation, This story is found in Polybius; and in Polyaenus there are several instances of similar perfidy which it is not necessary to repeat, since there is no doubt concerning them. Cicero has rightly said that by deception of this kind perjury is made worse, not lessened.
III. Technical terms are to be explained according to their technical use.
In the case of technical terms, which the people scarcely understand, the explanation of those who are expert in the particular art will need to be utilized, just as the teachers of rhetoric refer the question, what majestas is, or parricide, to a definition. Cicero, in fact, said truly in the first book of the .Academics: ‘The words of the logicians do not belong to common speech. They use their own technical terms; and indeed this, practice is common to almost all the arts.’ Thus, if an army has been spoken of in a compact, we shall explain that an army is a body of soldiers, which has dared openly to invade the territory of the enemy.
The historians, in fact, everywhere distinguish what is done secretly, or in the manner of brigands, from what is done by a regularly constituted army. Wherefore the forces which constitute an army ought to be estimated in proportion to the strength of the enemy. Cicero calls six legions with their auxiliary forces an army. Polybius says that a Roman army generally consisted of 16,000 Romans and 20,000 allies. But even a smaller number can satisfy the interpretation of the word; for Ulpian says that a man is in command of an army who has only one legion with the auxiliary forces; according to Vegetius such an army consists of 10,000 infantry and 2,000 cavalry Livy reckons a true army at 8,000 men. In like manner one muse judge in regard to a fleet. Similarly a fortress is a place which for a time can resist a hostile army.
IV. Resort is to be had to conjectures in the case of ambiguous and contradictory expressions, or if conjectures naturally suggest themselves.
1. It is necessary to resort to conjectures when the words or sentences are ‘interpreted in different ways,’ that is, admit of several meanings. The rhetoricians call this topic ‘ambiguity,’ but the dialecticians make a finer distinction, calling it ‘homonymy’ if a single word, and ‘ambiguity’ if a sentence, has more than one meaning. Similarly there is need of conjectures whenever in compacts there is ‘an appearance of contradiction.’ For then interpretations are to be sought which will reconcile the different parts with one another, if this is possible.
In case the contradiction is real, a later agreement between the contracting parties will annul earlier agreements, since no one could at the same time have had contradictory desires. Such is in truth the nature of acts dependent on the will that they can be relinquished through a new act of volition, either ‘on the one part,’ as in a law or a will, or conjointly, as in the case of contracts and compacts. The rhetoricians call this topic ‘antinomy.’ In such cases, in fact, the evident obscurity of the words compels us to have recourse to conjectures.
2. But at times the conjectures themselves are so evident that they naturally suggest themselves, even against the more commonly accepted interpretation of the words. The Greek rhetoricians call this topic ‘concerning the word and the meaning’; and the Latins call it ‘of the written word and the meaning of the word.’ The elements from which are derived conjectures as to meaning are especially the subject-matter, the effect, and the connection.
V. Conjectures from the subject-matter.
Of the subject-matter is the word day, in case a thirty days’ truce has been made; and this ought to be understood as meaning not natural days, but civil days, for that meaning is consistent with the subject-matter. So the word’ to bestow’ is assumed to mean ‘to complete a transaction,’ according to the nature of the business. Similarly the word ‘arms,’ which sometimes means instruments of war and sometimes armed soldiers, will have to be interpreted now with the former, now with the latter meaning, according to the subject-matter.
Again, he who has promised to deliver up men ought to deliver them living, not dead, contrary to the quibble of the Plataeans; and those who were commanded to deliver up their iron fulfilled the command by giving up their swords, not also their buckles, as Pericles craftily maintained. Thus the free withdrawal from a city ought so to be understood that the journey also shall be safe, contrary to what Alexander did. Finally, in a division one-half of the ships ought to be understood of whole ships, and not as one-half of each ship cut in two, as the Romans maintained in taking advantage of Antiochus. In similar cases let the same decision be reached.
VI. Conjectures from the effect.
As regards the effect, especially important is the case when a word taken in its more common meaning produces an effect contrary to reason. For in the case of an ambiguous word that meaning ought preferably to be accepted which is free from fault. In consequence we ought not to admit the quibble of Brasidas, who, having promised that he would withdraw from the Boeotian country, denied that the land which he occupied with his army was Boeotian, as if that word ought to be understood of warlike possession and not of ancient boundaries; for in the former sense the compact would have been meaningless.
VII. Conjectures from elements that are connected, either in origin or also in place.
Statements are connected either in origin or also in place. Those are connected in origin which proceed from the same will although uttered in different places and on different occasions’;hence arises the need of conjecture, because in doubtful cases the will is believed to have been consistent. Thus in Homer the agreement between Paris and Menials, that Helen should belong to the victor, must so be understood from what follows that he who had killed the other should finally be recognized as the victor. Plutarch gives this reason: ‘Judges incline to that which is less ambiguous, passing by that which is more obscure.’
VIII. To what the conjecture drawn from reasonable motive applies; and when, and how, it is in point.
Among the elements which are connected in respect to place, the chief force is given to the reason for a law, which many confuse with the intent, although it is only one of the indications from which we trace the intent.
Nevertheless among conjectures this is the strongest, if it is established with certainty that the will has been influenced by some reason as the only cause. Often, in fact, there are several reasons, and sometimes the will without reason determines itself from the; power of its own freedom; and this is sufficient to produce a binding obligation. Thus a present made by reason of a wedding will not be valid if the wedding does not take place.
IX. The distinction between broad and narrow meanings.
Furthermore, the fact should be recognized that many words have several meanings, the one narrower, the other broader. This is the case for many reasons. One is that the name of the genus may be applied to a species, as in words of relationship and adoption; likewise also in masculine nouns, which are ordinarily used as common nouns when words of common gender are wanting. Another is that the technical use of a term may give a broader meaning than the everyday use, just as the word for death is extended by the civil law to cover banishment,’ though it does not have this meaning in ordinary speech.
X. Division of promises into favorable, odious, mixed, and median.
At the same time it should be noted that of promises which are made some are favorable, some odious, some mixed, and some median.
Those promises are favorable which are made on a basis of equality and promote the common advantage. The greater and more extended this advantage is, the greater the favorableness of the promise; this, then, is greater in promises that contribute to peace than in those that contribute to war, greater also in promises: for defense in a war that has been begun than for other causes.
Odious promises are those which impose burden on one party only, or on one party more than the other; which contain penalties in themselves which render acts null and void, and which bring .about some change in previous agreements. If, again, a promise is of a mixed character, as changing former agreements, to be sure, but with a view to peace, this will be considered now favorable and now odious, as the amount of good or of change predominates, but in such a way that, other things being equal, it should preferably be considered favorable.
XI. The rejection of the distinction between contracts of good faith and those of strict legal right in relation to the acts of peoples and kings.
The distinction between acts of good faith and those granting a strict legal right, in so far as it is drawn from the Roman law, does not belong to the law of nations. In a certain sense, however, the distinction can be applied here; thus, for example, if in any countries some acts have a certain common form, in so far as that form is unchanged, the distinction may be understood to be present in the act. But in other acts, which are in themselves indefinite in respect to form, such as a donation and a generous promise, more attention should be paid to the words.
XII. In accordance with the distinctions of meanings and promises stated, rules are formulated in regard to interpretations.
1. In the light of the principles stated the following rules should be observed
In agreements that are not odious the words should be taken with their full meaning according to current usage; and, if there are several meanings, that which is broadest should be chosen, just as the masculine gender is taken for the common gender, and an indefinite expression for a universal. Thus the words, ‘from which one has been ejected,’ will have reference even to the restoration of one who has been hindered by force from entering into possession of what belongs to him; the expression, taken more loosely, has that force, as Cicero rightly maintained in his oration For Aulus Caecina.
2. In more favorable agreements, if the speaker knows the law or avails himself of the advice of lawyers, the words should be taken rather broadly, so as to include even a technical meaning, or a meaning imposed by law. But we should not have recourse to meanings that are plainly, unsuitable unless otherwise some absurdity or the uselessness of the agreement would result. On the other hand words are to be taken even more strictly than the proper meaning demands if such an interpretation shall be necessary in order to avoid injustice or absurdity. And even if there be no such necessity, but there is manifest fairness or advantage in the restriction, we ought to confine ourselves to the narrowest limits of the proper meaning unless circumstances persuade to the contrary.
3. In odious agreements even figurative speech is sometimes admitted, in order to lighten the burden. Consequently in the case of a donation, and in the surrender of one’s right, no matter how general the words are, they are ordinarily restricted to the matters which were in all probability thought of. In such cases that will sometimes be understood to have been taken possession of which there may be hope of being able to retain. Thus the promise of auxiliary forces by one party only will be understood to be an obligation at the expense of the one who asks for them.
XIII. Whether under the term’ allies’ future allies are included, and in what degree; also, concerning the treaty of the Romans with Hasdrubal, and similar controversies.
1. A notable question is, whether under the term’ allies’ only those are included who were allies at the time of a treaty, or also future allies, as in the treaty between the Romans and the Carthaginians after the war in regard to Sicily: ‘The allies of each people shall be safe at the hands of the other people.’ From this the Romans inferred that, although the treaty with Hasdrubal about not crossing the Ebro brought no advantage to them, since the Carthaginians had not ratified it, war could nevertheless be. declared on the ground of treaty violation if the Carthaginians should approve of the action of Hannibal in attacking the Saguntines, whom the Romans had accepted as allies after the treaty. Livy sets forth the reasons as follows:
Sufficient provision had been made for the Saguntines when exception was made or the allies of both parties. For no proviso had been added ‘to those, who were then allies’; nor was there a proviso ‘that no allies should thereafter be taken.’ Since, then, it was permissible to take new allies, who would think it right to receive any one into a relation of friendship without services rendered, or not to defend those who had been so received, provided only that the allies of the Carthaginians should not be incited to revolt, or should not be received when revolting of their own accord?
This appears to have been taken almost word for word from Polybius.
What shall we say? Indeed there can be no doubt that, with due regard for correctness of speech, the word ‘allies’ can be accepted in the narrower sense of those who were allies at the time of the treaty, and in a second and broader meaning, which is extended also to future allies. Which of the two interpretations, then, ought to have the preference will need to be inferred from the rules given above. In accordance with those rules we say that future allies are not included, because the breaking of a treaty, which is an odious matter, is involved, also the taking away from the Carthaginians of unrestricted freedom to restrain by force of arms those who were believed to have done injury to them. Such freedom is, in fact, natural, and is not to be considered as given up without good reason.’
2. Was it not permissible to the Romans, then, to admit the Saguntines to an alliance, or to defend them after they had been admitted? Certainly it was permissible, not indeed by virtue of the treaty, but according to the law of nature, which had not been renounced in making the treaty. Consequently in their relation to both parties the Saguntines were placed in the position in which they would have been if no agreement had been made in regard to allies; and under these conditions neither the Carthaginians would be acting contrary to the treaty if they commenced a war which they thought just against the Saguntines; nor the Romans, if they defended the Saguntines.
Just so in the time of Pyrrhus an, agreement had been reached between the Carthaginians and the Romans, that if either of these peoples should make a treaty with Pyrrhus it should be made with the reservation of the right to send aid to the one whom Pyrrhus might attack in war. I do not say that the war could have been just on both sides, but I declare that it had nothing to do with the violation of the treaty. In like manner, as regards the question of aid sent to the Mamertines by the Romans, Polybius makes the distinction whether that act was just, and whether it was permitted by the treaty.
3. This, again, is the very thing which, according to Thucydides, the people of Corcyra said to the Athenians, that it was permissible for the Athenians to send them aid, and that the fact that the Athenians had a treaty with the Lacedaemonians presented no obstacle, since according to that treaty they were permitted to acquire nets allies. And the Athenians followed that opinion afterward; for ii order not to break the treaty they ordered their men not to fight against the Corinthians except when these should be preparing to make a hostile landing on Corcyra. Moreover, it was not inconsistent with the treaty, that those whom the one party was attacking should be defended by the other, while in other respects peace was, still maintained.
In discussing those times, Justin says: ‘The truce which they had made in their own name they broke in the person of their allies, just as if they were less guilty of perjury in bearing aid to their allies than if they had fought in open warfare.’ So also in the speech On Halonnesus, which has a place among the orations of Demosthenes, it appears that in a certain treaty of peace between the Athenians and Philip there was a provision that the states of Greece which were not included in the treaty should be free; that it should be permissible for those who were included in the peace treaty to defend them, in case any one should make an attack upon them. This is, in fact, an example in an equal alliance.
XIV. In what way the clause, that one people may not make war without the consent of the other, ought to be interpreted.
As applicable to an unequal alliance we shall present a second possibility; that is, if it has been agreed that one of the allies shall not be able to wage war without the consent of the other.
We have mentioned above that such a provision was made a. part of the treaty between the Romans and the Carthaginians after the Second Punic War. A similar provision was contained in the treaty of the Macedonians with the Romans before the time of King Perseus. The expression ‘to wage war’ can apply to every war, both offensive and defensive; in case of doubt we shall in this connection take it in the narrower sense, that liberty may not be too greatly restricted.
XV. Concerning the words, ‘Carthage shall be free.’
In the same class is the promise which the Romans had made, that ‘Carthage should be free.’ Although from the nature of the act this promise could not be understood as implying absolute power (the Carthaginians had, in fact, already lost the right of undertaking war, and some other rights), nevertheless it left to them a degree of liberty, at any rate so great a degree that they were not bound to move their city from its location at the command of another. In vain, therefore, the Romans laid stress on the word’ Carthage,’ alleging that the citizens were meant, and not the city. The distinction, while not applicable, may be conceded by reason of the word ‘free,’ which is more in harmony with citizens than city. For there was a manifest quibble in the expression,’ to be left free,’ or ‘autonomous,’ as Appian says.
XVI. What compacts are to be considered personal, and what real, is set forth, with distinctions.
1. To this topic is to be referred the question that frequently arises in regard to personal and real compacts. If indeed an agreement has been made with a free people, there is no doubt that what is promised is in its nature real, because the subject is a permanent thing. Further, even if the condition of the state shall be changed into a kingdom, the treaty will continue, for the reason that, although the head has been changed, the body remains the same; and, as we have said above, the sovereignty, which is exercised through a king, does not cease to be the sovereignty of the people. An exception will have to be made if it is apparent that the cause of the treaty resided in the free condition of the state; such would be the case if free states had made a treaty for the purpose of protecting their freedom.
2. But if a compact has been made with a king the treaty will not immediately have to be considered personal; for, as Pedius and Ulpian have rightly said, the name of the person is for the most part inserted in a compact, not in order that the compact may become personal, but in order to show with whom it was made. Now if the addition is made to the treaty, that it shall be lasting, or that it was made for the good of the realm, or with the king himself and his successors (and this addition shall be accompanied by the phrase, ‘and to his descendants,’ which is commonly added in treaties, as Libanius says in his defense of Demosthenes), or if the treaty was made for a definite time, the fact that it is real will be sufficiently apparent.
The treaty of the Romans with Philip, king of Macedonia,’ seems to have been of this sort; for when Philip’s son, Perseus, denied that it was applicable to him on that account a war arose. But other words also, and at times the subject-matter itself, will warrant a not improbable conjecture.
3. Again, if the indications are evenly balanced on both sides, the result will be that favorable treaties are to be believed real, and odious treaties personal. Treaties made for the sake of peace or commerce are favorable. Treaties made for the sake of war are not all odious, as some persons think; but ‘alliances for defense,’ that is, treaties for the sake of protecting each party, incline rather toward favorableness, and ‘offensive alliances’ incline more toward burdensomeness. There is the further point, that in the case of a treaty which contemplates any war whatsoever the presumption is that consideration has been had of the prudence and loyalty of the party with whom the engagement is made, as being one who clearly not only would not undertake a war unjustly, but not even rashly.
4. To the commonly accepted statement, that associations are terminated by death, I give no place here; for this pertains to private associations and belongs to civil law. Therefore, we cannot rightly decide whether the Fidenates,’ Latins, Etruscans, and Sabines justly or unjustly renounced their treaties on the death of Romulus, Tullus, Ancus, Priscus, and Servius, for the reason that the words of the treaties are not preserved. A not dissimilar controversy is found in Justin, the question being whether the states which had been tributary to the Medes had changed their condition when the sovereignty was changed. The point to be considered is, in fact, whether in the agreement they had chosen the faith of the Medes.
Least of all should the argument of Bodin be admitted, that treaties do not pass to the successors of kings, for the reason that the force of an oath does not go beyond the person. It is true enough that the obligation of the oath can bind the person only, while the promise itself can bind the heir.
5. Furthermore the assumption on which Bodin proceeds, that treaties are based on an oath as a kind of foundation, is not valid. The fact is that in most cases there is sufficient binding force in the promise itself, and that the oath is added thereto in order to secure the reinforcement of greater religious scruple. Under Publius Valerius as consul the Roman plebeians had taken oath that they would assemble at the command of the consul. When Valerius died, Lucius Quinctius Cincinnatus succeeded him. Some of the tribunes dealt captiously with the obligation, as if the people were not bound by religious scruple. The opinion of Livy follows:
The disregard of the gods, which characterizes the present generation, had not yet come. In those days men would not universally through interpretation make their oaths and the laws adapted to their own desires, but rather they were accustomed to fit their practices to their obligations.
XVII. That a treaty entered into with a king is continued with him though he may have been expelled from his kingdom.
A treaty entered into with a king surely continues, although the king himself or his successor has been expelled by his subjects from the kingdom. The right to the kingdom, in fact, still belongs to him, although he has lost possession. In this connection the words of Lucan about the Roman senate are pertinent:
- Its rights the order never lost
By change of place.
XVIII. That such a treaty does not apply to the usurper of a kingdom.
On the contrary there is no violation of the treaty if a usurper of another’s kingdom is attacked in war at the wish of the true king, or if the oppressor of a free people is attacked before an adequate approval on the part of the people is secured for the treaty. The reason is that, while such persons may have possession, they have no legal right.’ And this is what Titus Quinctius said to Nabis: ‘Relations of friendship and common interest were by us entered into not with you, but with Pelops, the just and lawful king of Sparta.’ Such elements in the treaties of a king and his successor, and similar elements, betoken a right, properly speaking; and the cause of the usurper is odious.
XIX. To whom a promise is due if it was made to the one who should do something first, and several have done the thing at the same time.
Chrysippus in ancient times discussed the question whether a promise which had been made to the one who should first arrive at the goal would be due to each if two arrived together, or to neither.
The truth is that the word ‘first’ is ambiguous; for it designates either the one who surpassed all or the one whom no one; surpassed. But because awards for virtues are to be viewed with favor the more just opinion is that they will together share the prize, although Scipio,’ Caesar, and Julian more generously assigned individual prizes to those who had mounted the walls at the same time.
Let what has been said suffice in regard to the interpretation which is adapted to the proper or improper meaning of words.
XX. A conjecture which presents itself in the one case broadens the meaning; when this occurs.
1. There is also another kind of interpretation from conjectures outside of the meaning of the words in which the promise is contained. This, again, is of two sorts, either broadening the meaning or narrowing it.
Now the interpretation which broadens the meaning proceeds with greater difficulty; that which narrows the meaning proceeds more easily. For as in all other things the absence of a single one of the causes is sufficient to prevent the result, and all causes need to concur that the effect may be produced, so also in the case of an obligation a conjecture which extends the obligation ought not rashly to be admitted. The difficulty here is much greater than in the case of which we were speaking above, where the words admit of a rather broad interpretation, though one less generally accepted; for here we are in search of a conjecture outside of the words of the promise. Such a conjecture ought to be very certain in order to create an obligation; and a similar reason is not sufficient, but an identical reason is required. Again, it is not always sufficient for us to affirm that the extension ought to be made in accordance with reason; for, as we were just saying, reason often moves in such a way that the will nevertheless may be a sufficient cause in itself, even without reason.
2. That such an extension, then, may be rightly made, it must, be agreed that the reason, under which comes the case that we wish to include, is the sole effective cause which influenced the promisor, and that the reason was considered by him in its general sense, because otherwise the promise would have been unfair and useless. This topic also is ordinarily dealt with by the Greek rhetoricians under the heading Concerning the word and the meaning; and a form of this they posit as often as we are constantly uttering the same thought. But also the other title, By means of reasoning, belongs here; for:’assuredly here we derive what was not written from what was written, as Quintilian says. And we include also whatever is taught by the; jurist concerning matters done fraudulently.
3. As an example, suppose that there is an agreement that a certain place shall not be surrounded with walls, and that this agreement was made at a time when there was no other kind of fortification.’ It will not be permissible to surround that place even with an earthwork, if it is fully established that the sole reason why walls were prohibited lay in the intent that the place should not be fortified,
Ordinarily an illustration is taken from the condition that a posthumous child has died, if such a child is included in the will of one who fully expected a posthumous child. Under such conditions the intent of the will is extended to cover the alternative, if, no posthumous child has been born, because it is agreed that the will of the speaker was determined by consideration of the non-existence of offspring. It is, in fact, possible to find this very example in the writings not only of the jurists but also of Cicero and Valerius Maximus.
4. Cicero presents this reason in his speech For Caecina: ‘What, then? Had sufficient provision been made for this in the words, Not at all. What is it then that is valid? The intent; and if this could be understood by us without speech we should not use words at all. Because it cannot be so understood, words were invented, not to hinder, but to express the intent.’ A little later in the same, speech he says that the rule of law is the same when ‘the cause of the equity appears to be one and the same,’ that is, of the reason, which was the only motive; so the form of the interdict, ‘from which you have expelled me by violence with a force of armed men,’ is in point against every form of violence which affects the person and life. ‘Such violence,’ says Cicero, ‘is generally committed through the agency of a force of armed men; if it has been committed on a different plan, but with the same peril, they wished the right to be the same.’
In a declamation of Quintilian the Father this example is found:
Murder seems to connote blood and steel; but if a man has been killed by any other kind of murder we shall have recourse to the same law. If he has fallen among robbers, or has been thrown into water, or has been cast down some immense height, he will be avenged by the same law as the person who has been stabbed with a sword.
Similar is the argument of Isaeus in the oration On the Inheritance of Pyrrhus, when from the fact that by the Attic law the making of ”a will without the consent of the daughter was forbidden he infers that against the will of a daughter not even an adoption was allowed.
XXI. Herein also concerning the execution of a mandate in a different way.
From the principles stated comes the solution of the famous question found in Gellius, whether the obligation of a mandate may be satisfied, not with the identical thing, but with something else equally useful, or more useful than was that which the giver of thy mandate had prescribed.
Such an adjustment is, in fact, permissible in case it is deter that what had been prescribed was not prescribed in a special form, but in a more general way, which made possible a different fulfillment of the conditions. So it was held by Scaevola that one who had been ordered to give security to a creditor could direct him to pay the money to a third party. For the rest, when the matter is not sufficiently determined, the rule found in the passage ‘in Gellius is to be retained, that obligation to the one who gives the order is disregarded if, in response to what he has been ordered to do, a person makes answer, not with due obedience, but with advice, which was not desired.
XXII. In the other case the conjecture restricts the meaning; and this may happen by reason of an original defect in the intent, which is inferred from its absurdity.
A restrictive interpretation, outside of the natural meaning of the words containing the promise, is derived either from an original defect in the intent, or from the incompatibility with the intent of a case occurring. A defect inherent in the intent is recognized from the absurdity which evidently would otherwise result, or from the cessation of the reason which alone furnished the full and effective motive for the intent, or from a defect in the subject-matter.
The first case has its foundation in this principle, that no one ought to be believed to wish absurdities.
XXIII. Conjecture may restrict the meaning by reason of the cessation of the only reason.
The second case is founded on the principle that, when such a reason is added, or there is agreement concerning it, the content of the promise is considered not simply by itself, but only in so far as it comes under that reason.
XXIV. Conjecture may restrict the meaning by reason of a defect in the subject-matter.
The third case is based on the consideration that it is always to be understood that the subject-matter is viewed from the point of view of the speaker, even if the words have a broader meaning. This phase of interpretation also is treated by the Greek rhetoricians under the heading Concerning the word and the meaning, and bears the title, ‘When the same thought is not always expressed.’
XXV. An observation concerning the conjectures last mentioned.
1. In regard to the reason, it is to be noted that under it certain things are often included, not from the point of view of existence, but in relation to their force from the point of view of morals. When such a case arises, no restriction ought to be made. Thus if provision has been made that an army or a fleet should not be conducted to some place it will not be possible to conduct it to that place, even without the intent of doing harm. The reason is that in the agreement not a certain loss but danger of any possible kind was in contemplation.
2. The question also is commonly raised, whether promises contain in themselves the tacit condition,’ if matters remain in their present state.’
To this question a negative answer must be given, unless it is perfectly clear that the present state of affairs was included in that sole reason of which we made mention. Thus constantly in the histories we read that ambassadors gave up their mission and returned home from the journey on which they had set out, alleging as the reason that matters had been so changed that the entire matter or cause of the mission was at an end.
XXVI. Or conjecture may restrict the meaning when a case which arises is incompatible with the intent; and this is assumed in regard to what is unlawful.
1. The incompatibility of an actually occurring case with the intent is also ordinarily referred by the Greek teachers of rhetoric to the topic Concerning the word and the meaning, which I have mentioned. Such incompatibility is twofold; for the desire is inferred either from natural reason or from some other sign of intent. For the judging of intent from natural reason Aristotle, who treated this subject very carefully, attributed to the intellect a special quality, the ‘judgement,’ or ‘good sense,’ that is, ‘the perception of what is fair’; but to the will he assigned’ the quality of fairness,’ that is, ‘justice,’ and this he wisely defined as the correction of that in which the law, by reason of its general character, is at fault.’
Now the use of these qualities, within proper limits, ought to be made applicable to wills also, and compacts. For since all contingencies can neither be foreseen nor set forth, a degree of freedom is needed in order to make exceptions of cases which the person who has spoken would make an exception of, if he were present. Yet recourse to such a restriction of meaning should not be had rashly that, in fact, would be to make oneself master of another’s act – but only on sufficient implications.
2. The most certain implication is if the literal meaning would in any case involve something unlawful, that is, at variance with the precepts of the law of nature, or of divine law. Of necessity an exception must be made of such cases, since they are not capable of imposing a legal obligation. ‘Certain things,’ says Quintilian the Father, ‘although they are not included in any expression of the law, are nevertheless by nature excepted.’ Thus a person who has promised to return a sword which he received in trust will not return it to a madman, lest he bring danger either to himself or to other innocent persons. Similarly an object received in trust will not be returned to the person who deposited it if the rightful owner demands it. Tryphoninus says,’ I am satisfied that this is justice, which so assigns his own to each that it is not withdrawn by reason of a more just demand of any other person.’ The reason, as I have noted elsewhere, is that the force of ownership, when once introduced, is such that it is in every way unjust not to restore property to the owner, when he is known.
XXVII. Conjecture may restrict the meaning when the condition is too burdensome as regards the act.
1. A second implication will become manifest if, while the literal interpretation may not in itself involve something unlawful, the obligation, in the view of one who judges the matter fairly, shall appear to be burdensome and unbearable, whether the condition of, human nature is considered in the abstract, or the person and matter under consideration are brought into comparison with the result of the act itself. Thus a man who has lent a thing for some days will be able to demand its return within those days, if he himself is greatly in need of it; for the nature of a generous act is such that it is not to be believed that any one has wished to obligate himself to his own great disadvantage. Thus, again, one who has promised aid to an ally will be entitled to excuse in so far as he himself needs his troops as long as he is in danger at home. Also the exemption from taxes’ and tribute is to be understood as covering the usual daily and yearly requirements, not requirements imposed by extreme necessity, which a state cannot do without.
2. From this it is clear that the statement of Cicero was made too loosely, that promises without advantage to those to whom you have made them ought not to be kept, nor if they are more harmful’ to you than they are advantageous to the one to whom you made them. For the promisor ought not to judge whether a thing will be useful to the promisee, except perhaps in the case of madness, of which we have spoken above.
Furthermore, a certain harm to the promisor is insufficient to prevent the promise from being binding, but the harm should be such as to require that it be considered an exception in view of the nature of the act.’ Thus one who has promised to work for a neighbor, for some days will not be bound if the dangerous illness of his father or his son should detain him. Rightly Cicero in the first book On Duties says: ‘If you have agreed that you will appear in person in court as advocate for some one, and in the meantime your son has begun to be seriously ill, it would not be contrary to duty not to do what you have promised.’
3. We ought, further, to accept in the same sense, and not to press too far, what we read in Seneca:
Then I shall break faith, then I shall hear the reproach of inconstancy, if, when all things are the same as they were when I promised, I do not fulfill my promise. Whatever is in any way changed gives me the opportunity to reconsider, and releases my pledge. I have promised to be an advocate; afterwards it has become apparent that by means of that case an injury to my father is contemplated. I have promised to go abroad with some,one, but it is reported that the route is infested with brigands. I was about to appear in person in a lawsuit, but I am detained because my son is sick, or my wife is in labor. All things ought to be the same as they were when I made the promise, if you would hold me to it.
In this passage understand’ all things’ according to the nature of the act in question, as I have just now shown.
XXVIII. Conjecture may be restricted in view of other indications, as when the parts of a document are in conflict.
We have said that there may be also other indications of the intent, which show that an exception ought to be made. Among such indications none is stronger than words found in another place, not words directly opposed in meaning, for that is ‘antinomy,’ which is, mentioned above, but words which come into conflict in consequence of some unexpected turn of affairs; and this the Greek rhetoricians call ‘a conflict arising from circumstances.’
XXIX. What rules ought to be observed in such cases.
1. Of the ancient authors Cicero laid down certain rules for the settlement of such a question, as to which part of the document ought to prevail when the conflict arises from chance. Although these ought by no means to be disregarded, yet it seems to me that they were not arranged in their proper order. Accordingly I shall arrange them in this way
That which permits should yield to that which orders. The reason is that he who permits something seems to grant permission on the condition that nothing else hinders than that which is under consideration; in consequence, as the author of the Ad Herennium says, ‘A command prevails over a permission.’
That which is to be done at a definite time should have preference over that which can be done at any time. From this it follows that generally a clause in an agreement which forbids outweighs a clause which orders, because an agreement of prohibition is binding at any and every time, but an agreement of command is not binding to the same extent, unless the time has been stated, or the command contains an implied prohibition. Among agreements which are equal in respect to the qualities mentioned, that should be given preference which is most specific and approaches most nearly to the subject in hand; for special provisions are ordinarily more effective than those that are general. Also in prohibitions that which adds a penalty should be given preference over that which lacks a penalty, and that which threatens a greater penalty should have the preference over that which threatens a lesser penalty.
Then, that provision should prevail which has either the more honorable or the more expedient reasons.
Finally, that which was last said should prevail.
2. Here this should be repeated from the previous discussion, that the force of sworn agreements is such that they ought to be understood according to their most generally accepted meaning; and so all restrictions that are implied, and not absolutely necessary from the nature of the case, should be rejected. If, then, a sworn compact is at variance in some particular with one which has not been sworn to, preference ought to be given to the compact which has the sanctity of an oath.’
XXX. That in a doubtful case a written document is not required for the validity of a contract.
This question also is commonly raised, whether in a doubtful case a contract ought to be considered perfect before the written form has been completed and delivered.
This, in fact, was the point which Murena argued against the treaty that had been arranged between Sulla and Mithridates. To me it seems clear that, unless it has been otherwise agreed, we ought to believe that writing has been employed as evidence of the contract, not as a part of its content. Otherwise the form of expression is customary which is found in the truce with Nabis: ‘From the day on which the terms should be copied out and delivered to Nabis.’
XXXI. The contracts of kings are not to be interpreted according to Roman law.
I shall not, however, admit the rule, which has been adopted by some writers, that the contracts of kings and peoples ought to be interpreted according to Roman law so far as possible, unless it is apparent that among certain peoples the body of civil law has been received as the law of nations in respect to the matters which concern the law of nations. Such a presumption ought not rashly to be Admitted.
XXXII. Whether the words of the one who accepts the condition, or the words of the one who offers it, ought to carry greater weight, is set forth, with a distinction.
As regards the point which interests Plutarch in his Symposiacs, whether more weight ought to be given to the words of the one who ) offers or of the one who accepts a condition, it seems to me that when the one who accepts is the promisor his words determine the form of the matter, if they are complete and perfect in themselves. For if by affirmation they look to the words of the one who offers the condition, then, from the very nature of relative words, they will seem to be repeated in the promise. But it is certain that before the condition is accepted the one who made the offer is not at all bound. For no legal right has been gained up to that time, as is apparent from what I have said concerning a promise; and the offering of a condition is still less than a promise.