CHAPTER 16: The Interpretation of Treaties



The external obligation of promises — Words where other conjectures are 

wanting to be taken in their popular meaning — Terms of art to be 

interpreted according to the acceptation of the learned in each art, 

trade, and science — Conjectures requisite to explain ambiguous or 

seemingly contradictory terms — Interpretation of treaties from the 

subject-matter — From consequences, from circumstances and connection — 

Conjectures taken from motives — The more strict or more extensive 

interpretation — Treaties favourable, odious, mixed or indifferent — The 

good faith of kings and nations in treaties of equal validity with law — 

Rules of interpretation formed from the above named distinctions — Whether 

the word allies, in a treaty, is limited to those, who were such at the 

time of making it, or applies to all who are, or hereafter may become such 

— Interpretation of the prohibition of one party's making war without the 

consent or injunction of the other — Of the freedom granted to Carthage — 

Distinction between personal and real treaties — A treaty made with a king 

continues even during his expulsion by an usurper, such a treaty extends 

not to an invader — What kind of promises ought to have the preference — 

The extent of obvious conjectures — The performance of a commission by 

doing something equivalent — Interpretation restricted more closely than 

the bare signification of the words implies — From an original defect of 

intention — From failure of the sole motive — From a defect in the subject 

— Observations on the last named conjectures — Emergencies repugnant to 

the original intention, by rendering it unlawful or burdensome — 

Conjectures taken from a comparison of one part of the writings with 

another Rules to be observed — In dubious cases, writings not absolutely 

requisite to the validity of a contract — Contracts of Sovereigns not to 

be interpreted by the Roman law — Whether the words of the person 

accepting or offering the engagement ought to be most regarded — This 

explained by a distinction.



I. IF WE consider the promiser alone, be is naturally bound to fulfil his 

engagements. Good faith, observes Cicero, requires that a man should 

consider as well what he intends, as what lie says. But as acts of the 

mind are not, of themselves visible it is necessary to fix upon some 

determinate mark, to prevent men from breaking their engagements, by 

allowing them to affix their own interpretation to their words. It is a 

right, which natural reason dictates, that every one who receives a 

promise, should have power to compel the promiser to do what a fair 

interpretation of his words suggests. For otherwise it would be impossible 

for moral obligations to be brought to any certain conclusion. Perhaps it 

was in this sense that Isocrates, treating of agreements, in his 

prescription against Callimachus, maintains that the laws enacted on this 

subject are the common laws of all mankind, not only Greeks, but 

barbarians also. It is for this very reason, that specific forms have been 

assigned for treaties, which are to be drawn up in terms of unequivocal 

and certain meaning. The proper rule of interpretation is to gather the 

intention of the parties pledged, from the most* probable signs. And these 

are of two kinds, namely, words and conjectures, which may be considered 

either separately, or together.



II. Where we have no other conjecture to guide us, words are not to be 

strictly taken in their original or grammatical sense, but in their common 

acceptation, for it is the arbitrary will of custom, which directs the 

laws and rules of speech.* It was a foolish act of perfidy therefore in 

the Locrians, when they promised they would adhere to their engagements as 

long as they stood upon that soil, and bore those heads upon their 

shoulders, in order to evade their promise to cast away the mould, which 

they had previously put within their shoes, and the heads of garlick, 

which they had laid upon their shoulders. Acts of treachery like these, 

Cicero, in the third book of his Offices, has properly observed, instead 

of mitigating, tend to aggravate the guilt of perjury.



III. In terms of art which are above the comprehension of the general bulk 

of mankind, recourse, for explanation, must be had to those, who are most 

experienced in that art; thus from consulting legal writers, we may 

conceive the nature of particular crimes, or from the pages of the same 

authors, derive our notions of sovereign power.



It is a just remark of Cicero's, that the language of logic is not that of 

daily and familiar intercourse: the writers of that class have phrases 

peculiar to themselves: which indeed is the case with arts of every 

description. So in treaties, where military arrangements occur, an army is 

defined to be a number of soldiers capable of OPENLY invading a foreign, 

or an enemy's country. For historians everywhere make a distinction 

between the private incursions of robbers, and what is done by a lawful 

and regular army. What constitutes an army must be therefore judged of by 

the enemy's force. Cicero defines an army to consist of six legions and 

auxiliaries. Polybius says, that a Roman army in general amounted to 

sixteen thousand Romans, and twenty thousand auxiliaries. But a military 

force might be composed of a less number of troops than this. In the same 

manner the number of ships sufficient for any purpose will amount to a 

fleet, and a place able to hold out against an enemy may be called a fort.



IV. It is necessary to make use of conjecture, where words or sentences 

admit of many meanings: A mode of expression when included in one word, is 

called by Logicians, a synonymous term, and, when extending to two or more 

words, a doubtful phrase. In the same manner it is necessary to have 

recourse to conjecture whenever a seeming contradiction occurs in the 

expressions of a treaty. For in that case we must try to discover such 

conjectures, as will reconcile, if possible, one part with another. For if 

there be an evident contradiction, the contracting parties by their latter 

determinations, must have intended to abrogate their former; as no one can 

design to make contradictory resolutions at the same time. Indeed all acts 

depending upon the human will, as in the case of laws and testaments, 

which depend upon the will of one party, and in contracts and treaties, 

which depend upon that of two or more, all these acts are liable to 

changes, with a subsequent change of will in the parties concerned. In all 

such cases any obscurity in the language obliges us to have recourse to 

conjectures, which are sometimes so obvious, as to point out a meaning 

directly contrary to that of the words in their usual acceptation. Now the 

principal sources of conjecture are to be found in the subject-matter, the 

consequences, and the circumstances and connection.



V. From the subject or matter, as for instance, in the word day. Thus if a 

truce be made for thirty days, here civil and not natural days are meant. 



So the word donation is sometimes used to signify a transfer, according to 

the nature of the business. In the same manner too the word arms, which in 

general signifies military instruments, is sometimes applied to troops, 

and may be taken in either sense, according to the particular occasion. 

Every interpretation must be given according to the intention understood. 

Thus the promise of a free passage given upon the evacuation of a town, 

implies also that the troops shall pass without molestation. If a number 

of ships are to be given up, perfect and not mutilated ships are meant. 

And in all similar cases a similar judgment must be formed according to 

the natural tenor of the words. 



VI. Another source of interpretation is derived from the consequences, 

especially where a clause taken in its literal meaning would lead to 

consequences foreign or even repugnant to the intention of a treaty. For 

in an ambiguous meaning such an acceptation must be taken as will avoid 

leading to an absurdity or contradiction. The cavil of Brasidas therefore 

is highly abominable, who, promising that he would evacuate the Boeotian 

territory, said he did not consider that as Boeotian territory, which he 

occupied with his army; as if the ancient bounds were not intended, but 

only what remained unconquered, an evasion, which entirely annulled the 

treaty



VII. From the circumstances or context another source of interpretation is 

derived. No inconsiderable light maybe thrown upon the meaning of an 

expression from the circumstance of its being used by the same person to, 

express the same intentions on other similar occasions, and from its 

relation to what goes before, and what follows the place, where it stands. 

For in all doubtful cases, we have reason to suppose that the contracting 

parties mean to be consistent with their former opinions and intentions. 

Thus in Homer, in the agreement between Paris and Menelaus, that Helen 

should be given up to the conqueror, when compared with what follows, it 

is evident that by the conqueror is meant the combat. ant, who killed the 

other. This rule of interpretation, Plutarch illustrates by the conduct of 

judges, "who passing by what is obscure rest their decisions upon clear 

and unambiguous points."



VIII. As to the motives, which are sometimes taken for a rule of 

interpretation, there may be other substantial ones, besides those 

immediately expressed, for the passing of a law or the making of a treaty. 

Yet the strongest conjecture is that which arises from certain proof that 

the will was actuated by some reason, operating as a sole and sufficient 

motive. For there are frequently MANY motives, and sometimes the will is 

influenced by its own choice independent of any other reason. In the same 

manner a grant made, in contemplation of a marriage, will be void, if the 

marriage never takes place. 



IX. It is further to be observed that many words have a variety of 

acceptations, some more limited and others more extensive; which may be 

owing either to the application of a general name to a particular class of 

things, as in the words kindred and adoption; or to the use of masculines 

to express animals both of the male and female kind, where nouns of a 

common gender are wanting. In terms of art too, words are often taken in a 

metaphorical or extended sense: thus in the civil law death signifies 

banishment; but in its popular acceptation a dissolution of the parts of 

the natural body.



X. In promises likewise, some things are of a favour. able, some an 

odious, and others of a mixed or indifferent description. Favourable 

promises are those which contain an equality of terms, or which bear some 

relation to the common good, the magnitude and extent of which increases 

the favour of the promise: so that all engagements more conducive to peace 

than to war are to be considered as those of a favourable complexion, and 

alliances for mutual defence are always regarded as a more laudable object 

than those for offensive war.



Treaties of an odious kind are those which lay greater burdens on one 

party than on the other, which contain penalties for non-performance, or 

which lead to an abrogation or infraction of former treaties. Whereas, 

though engagements of a mixed nature may create a deviation from former 

treaties, they may be taken either in a favourable or odious light, 

according to the magnitude, or object of the change produced. If it be for 

the sake of peace, it is better, taking all circumstances into 

consideration, to rank them with those of a favourable kind.



XI. The distinction made by the Roman law between acts of equity and those 

of strict justice, cannot GENERALLY be applied to the law of nations, 

though it may in some cases be adopted. Thus in any transaction between 

the subjects of two countries, in each of which the same form of legal 

proceeding is observed, the parties are supposed to treat without any 

intention of deviating from the common rule and form, unless they have 

expressly determined to the contrary. But in acts for which no common rule 

is prescribed, as in donations and free promises, there the parties are 

supposed to treat according to the strict letter of the agreement.



XII. After the establishment of the former positions, the subject 

naturally proceeds to the rules themselves, which are to be observed in 

the interpretation of treaties. And in the first place we may remark, that 

in things, which are not of an odious nature, words are to be taken 

strictly in their popular meaning, and where they admit of exceptions, or 

have more significations than one, it is lawful to use that which is most 

extensive. As it has been already observed, that both Logicians and 

Grammarians frequently use particular terms in a general sense. Thus 

Cicero in pleading for Caecina, justly maintains that the interlocutory 

decree, ordering THAT THE PERSON EJECTED FROM HIS INHERITANCE SHOULD BE 

REINSTATED IN THE POSSESSION, implies not only an ejectment, but extends 

to any forcible prevention of the owner's taking possession.



In things of a favourable nature, if the parties engaged are acquainted 

with the legal principles, upon which they proceed, or rest upon the 

judgment of those who are so, the words used may be taken in their most 

extensive signification, including even terms of art and of law. Again, we 

must never have recourse to a metaphorical interpretation, except where 

the literal meaning would lead to a direct absurdity, or would defeat the 

intention of a treaty.



On the other hand a passage may be interpreted in a more limited 

signification, than the words themselves bear, if such interpretation be 

necessary, to avoid injustice or absurdity. If no such necessity exist, 

but equity or utility manifestly require a restriction to the literal 

meaning, it must be most rigidly adhered to, except where circumstances 

compel us to do otherwise. But in things of an odious nature a figurative 

expression may be allowed in order to avoid inconvenience or injustice. 

Therefore, when any one makes a grant, or relinquishes his right, though 

he express himself in the MOST GENERAL terms, his words are usually 

RESTRICTED to that meaning, which it is probable he intended. And in cases 

of this kind, the hope of retaining a thing is sometimes taken for the act 

of possession. In the same manner it is understood that subsidies of men, 

promised by one party only, are to be maintained at the expence of the 

power, who requires them.



XIII. It is a famous question whether the word ALLIES includes only those 

who were such at the time of making the treaty, or those who might 

afterwards become so: as was the case in the treaty made between the Roman 

people and the Carthaginians at the conclusion of the war that had 

originated in a dispute about Sicily, by which treaty it was stipulated 

that both powers should forbear attacking the allies of each other. Hence 

the Romans inferred that although the convention made with Asdrubal, by 

which he was prohibited from passing the Iberus, had been of no service to 

them, as it had not been ratified by the Carthaginians, yet if the 

Carthaginians sanctioned the conduct of Hannibal in his attack upon the 

people of Saguntum with whom the Romans, after the making of that 

convention, had entered into an alliance, they should consider themselves 

as authorised to declare war against the Carthaginians for having violated 

a solemn treaty. Upon which Livy reasons in the following manner, "By the 

clause in favour of allies on both sides, there was sufficient security 

for the Saguntines. For there was no limitation of the words to those, who 

were allies at that time, nor were they such as to exclude either power 

from making new alliances. But if both sides were at liberty to make new 

alliances, who could think it just to deprive the new allies of that 

protection to which they would be entitled from treaties of amity? The 

exclusion could reasonably go no further than to declare that the allies 

of the Carthaginians should not be seduced to renounce their engagements, 

nor if they did so, be admitted into alliance with the Romans."



The last passage is taken, almost word for word, from the third book of 

Polybius. On which we may observe that the word ALLIES may strictly mean 

those, who were so at the time, when the treaty was made, and, without any 

forced interpretation, may also be extended to embrace those, who 

afterwards became such. To which of these interpretations the preference 

is to be given may be seen from the rules above given: and according to 

those rules, it will be found, that alliances formed after the making of 

the treaty will not be comprehended in it, because it relates to the 

breach of a treaty, the violation of which is an odious act, and tends to 

deprive the Carthaginians of the liberty of redressing themselves by force 

against those who were supposed to have injured them; a liberty sanctioned 

by the law of nature, and not to be abandoned on any slight occasion. Were 

the Romans debarred then by this rule from making any treaty with the 

Saguntines, and defending them after they became allies? No! they had a 

right to defend them, not by virtue of any treaty, but upon principles of 

natural justice, which no treaty can annul. The Saguntines therefore with 

respect to both powers were in the same situation, as if no engagement had 

been made in favour of allies. In this case, it was no breach of treaty 

for the Carthaginians, upon just grounds, to commence hostilities against 

the Saguntines, nor for the Romans to defend them. Upon the same 

principle, in the time of Pyrrhus, it had been stipulated, by treaty, 

between the Carthaginians and Romans, that if either of them afterwards 

entered into any engagement with Pyrrhus, the party so contracting should 

reserve to itself the right of sending succours to the other, if attacked 

by that king. Though in that case the war ON BOTH SIDES could not be just, 

yet it would involve no infraction of any treaty. This is an example of a 

case in equal treaties.



XIV. The case of an unequal treaty may be put, where it is agreed that one 

of the confederate parties shall not make war, without the consent, or by 

the injunction of the other, which was stipulated in the treaty between 

the Romans and Carthaginians, after the conclusion of the second Punic 

war. When the term WAR is applied to war of every description, 

particularly to offensive rather than defensive war; in a dubious case, it 

must be limited to its proper signification, lest the treaty should 

operate as too great a restraint upon the liberty of that power, which has 

engaged in the unequal treaty.



XV. Of the same kind is the promise given by the Romans, that Carthage 

should be free, which could never mean the enjoyment of complete 

independence, by a people, who had long before lost the right of making 

war, and many of their other privileges. Yet it left them some degree of 

liberty, so much at least, that they should not be obliged to remove the 

seat of their government at the command of any foreign power, and gave 

them a pledge that their city should not be disturbed. It was in vain then 

for the Romans to urge that it was only the city which was intended. 

Whereas those acquainted with the use of metaphorical language know that 

by the city is frequently meant the inhabitants, and government with its 

privileges, and not the mere walls and houses. For the term, BEING LEFT 

FREE, implies that the people should enjoy their own laws.



XVI. The nature of personal and real treaties is a frequent subject of 

inquiry, which may properly be examined in this place. Indeed in all 

transactions with a free people, the engagements entered into with them 

are of a real nature; because the subject of them is a permanent thing. So 

permanent, that, although a republican be changed into a regal government, 

a treaty will remain in force: for the political body continues the same, 

although the head be changed, and the sovereign power, which before was 

diffused among many members, is now centered in one. Yet this rule will 

admit of an exception, where it is evident that the specific form of 

government made an essential part of the treaty, as when two states make a 

federal union for the mutual preservation of their political systems. But 

if a treaty be made with a KING OR SOVEREIGN PRINCE, it does not 

consequently follow that it is to be considered only as a PERSONAL and not 

a REAL treaty. For the name of a person may be inserted in a treaty, not 

merely to give it the character of a personal treaty, but to point out the 

contracting parties. And this will be still more evident, if, as is usual 

in most treaties, a clause is annexed declaring it to be perpetual, or 

made for the good of the kingdom, or with the king himself, and his 

successors, and it will also be considered as a real treaty, even if it is 

stated to be passed for a definite time. The treaty between the Romans and 

Philip, King of the Macedonians, seems to have been of this description, 

which, upon the refusal of his son to continue it, gave rise to a war.



Other forms too besides those already named, and the subject itself, will 

frequently supply no improbable grounds of conjecture. But if the 

conjectures are equal on both sides, it will remain that favourable 

treaties are supposed to be real or permanent, and odious ones only 

personal. All treaties of peace or commerce are favourable. Yet all 

treaties of war are not odious, especially those of the defensive kind, 

such a character belonging only to offensive wars, from the contemplation 

of the calamities which they inflict. It is presumed too, that in the 

formation of treaties, the character of each party is taken into the 

account, and that both are persuaded that neither of them will commence 

hostilities, but from just and important causes.



What is usually said of societies terminating with the death of the 

parties, has no connection with this subject, but relates to private 

societies, the cognizance of which belongs to the civil law. Whether it 

was right or wrong therefore in the people of Fidenae, the Latins, Tuscans 

and Sabines, upon the death of Romulus, Tullus, Ancus, Priscus, Servius, 

to abandon the respective treaties made with those kings, it is impossible 

for us now to decide, those treaties being no longer extant. On the same 

point, Justin maintains a discussion, whether those states, which had been 

tributary to the Medes, were upon a change of government, released from 

their obligations. For the thing to be considered is, whether the 

convention with the Medes had been a voluntary act of their own. Indeed 

the argument of Bodinus can by no means be admitted, which is, that 

treaties made with kings extend not to their successors; For the 

obligation of an oath is limited to the person of him, who takes it. It is 

true that the oath itself can bind only the person who takes it; yet the 

engagements, which it confirms, will be binding upon his heirs. Nor is it 

to be taken for an established maxim, that oaths are the only foundation, 

on which treaties rest. The engagement itself is sufficiently binding, the 

oaths being only added to give it the greater sanctity. In the Consulship 

of Publius Valerius, the Roman people had taken an oath to muster at the 

command of the Consul. Upon his death, he was succeeded by Lucius Quintius 

Cincinnatus. Some of the tribunes began to quibble, pretending that the 

people were released from their obligation. Upon which Livy, in his third 

book, remarks, that "at that time they had not degenerated into the 

disregard of religious obligations, which marked his age: nor did every 

one allow himself a latitude in explaining oaths, and laws, but thought 

that he was bound to conform to their literal meaning."



XVII. A treaty made with a king continues in force, even though the same 

king or his successor should be banished from the kingdom by rebellious 

subjects. For the rights of a king, among which his alliances may be 

reckoned, remain unimpaired, during the temporary loss of his throne. A 

case to which the expression of Lucan may be applied, that "order never 

loses its rights under any change of circumstances."



XVIII. On the other hand, any war, if it be with the consent of the lawful 

sovereign, made upon the invader of his kingdom, or upon the usurper of a 

free people's rights before his usurpation has received public sanction, 

will be deemed no infraction of any former treaty with the established 

authorities of that kingdom or country, For acts of usurpation convey not 

immediately any right beyond that of bare possession. And this is what was 

said by Titus Quintius to Nabis, "We made no treaty of alliance and amity 

with you, but with the just and lawful king of the Lacedaemonians." For in 

treaties the characters of KING, SUCCESSOR, and the LIKE, carry with them 

an idea of a peculiar and lawful right, which must always render the cause 

of USURPERS odious.



XIX. It was a question formerly discussed by Chrysippus, whether a prize 

promised to him, who first reached the goal, could be given to two, who 

reached it at the same time, or to neither. But as rewards of merit are 

things of a favourable nature, it is the juster opinion that they should 

divide the prize. Although Scipio, Caesar and Julian acted more liberally, 

in giving the entire prizes to each of those who had ascended the walls 

together.



What has been already said upon the literal or figurative application of 

the words, in interpreting treaties, will be sufficient.



XX. There is also another kind of interpretation, arising from 

conjectures, which apply exactly to the signification of the words 

containing a promise or engagement; and that is of a twofold description, 

either extending or limiting the meaning. But it is more difficult to 

extend than to limit the acceptation of expressions. For as in all matters 

the want of one essential requisite is sufficient to defeat their effect; 

so in engagements, those conjectures, which extend the obligation are not 

readily to be admitted. And it is much more difficult here than in the 

case above mentioned; where words allow a more extensive but less familiar 

acceptation. For here it is seeking a conjecture to extend the words of a 

promise: the conjecture therefore, which is to create an obligation, ought 

to be very certain. Nor is it sufficient that there is some resemblance in 

the motives; for the motive produced to confirm an obligation must be 

exactly the same as that of the case under consideration. Neither is it 

always proper to allege a motive for extending an obligation; because, as 

it has been already said, motives, in actuating us to form engagements, 

may sometimes be swayed by the will which often acts independently of any 

just motive. To authorise therefore such an extension, it must be evident 

that the motive, produced as an example and authority, was the sole and 

effectual cause, which influenced the promiser, and that he considered it 

in the same extensive view; for otherwise it would have been unjust and 

prejudicial. The ancients in their treatises on rhetoric follow the same 

rule, when, in speaking of the LETTER and DESIGN, they give us one 

invariable form of expressing the same sentiment, but in their syllogisms 

or arts of reasoning they point out a way of interpreting what is not 

written, by what is written. In the same manner too legal writers lay down 

rules for avoiding frauds. Now if at a time, when there was no other mode 

of fortifying towns, than by surrounding them with walls, it were 

stipulated that a certain place should not be so surrounded, it is evident 

that to employ any other means of fortification would be a breach of that 

treaty.



As in the above case the interpretation must be extended to guard against 

every possible evasion, so in the following example, the prohibition to 

assemble an armed force to assail us includes all kinds of violence and 

force, by which our lives and security may be endangered.



[Translator's note: The case of a promise made on the supposition of a 

posthumous child's dying, instanced by our author in this place, bears so 

near a resemblance to that of a father's bequeathing his property to 

another, believing his son to be dead, that it is omitted in this chapter 

having been already given under the head of erroneous promises in the xi. 

chapter and 6th section of this book.]



XXI. Hence may be solved the question to be found in Gellius, respecting a 

commission, whether it can be fulfilled by doing, not the immediate act 

required, but some thing equivalent to it, or in a manner more beneficial 

than in the form prescribed. For this deviation from the written rule may 

be proper and lawful, where the prescribed form is not essential towards 

attaining the object, or where, by departing from it, that object can be 

better accomplished, according to the answer given by Scaevola, that the 

person required to be bail and security for another, may give an order to 

a third person to pay that money to the creditor. But where such a 

latitude of interpretation is not evidently admissible, we must adhere to 

what Gellius has said in the same place, that it would be a dissolution of 

all trusts, if the party acting in commission were, in all cases, left to 

his own discretion, rather than bound by his written instructions..



XXII. An interpretation, restricted more closely than the literal 

signification of the words containing a promise absolutely requires, may 

arise either from some original defect in the intention of the promiser, 

or from some sub. sequent emergency repugnant to such intention. Thus if 

it were evident that an absurdity would follow the fulfillment of a 

promise, this would be sufficient to prove an original defect in the 

intention, because no man can be supposed to have deliberately intended 

doing an absurd act. Or if the sole and effectual reason, by which the 

promise was influenced, should have ceased, the obligation also would be 

void, the sole ground on which it rested being no longer in existence.



XXIII. In the next place, where any sufficient reason can evidently be 

assigned for a promise or engagement, it is not the substance of the 

promise itself, which is to be considered, so much as the reason for which 

that promise was given.



XXIV. Thirdly, the contending parties must always be supposed to have in 

contemplation the subject, and nothing but the subject, however extensive 

a signification the words may seem to bear. This method of interpretation 

also is handled by the ancient rhetorical writers, in speaking of 

expression and design, and they place it under the head of VARIATIONS IN 

OPINION.



XXV. In speaking of motives and reasons, it is proper to observe, that 

they some times comprehend things, considered not according to their 

actual existence, but according to their moral consequences: in which case 

it is by no means right to limit the words of a treaty to their literal 

meaning, but the utmost extent of interpretation is allowable, in order to 

maintain the spirit as well as the letter of such treaties. Thus if it be 

stipulated that no troops or ships shall be brought to a certain place, or 

within a certain distance, the prohibition excludes ALL ships or troops 

from being brought thither, even under the fairest and most harmless 

pretences. For the purport of the treaty is to guard not only against 

actual mischief but even against remote danger.



It is a point often disputed, whether the continuance of things in their 

present state is a tacit condition, on which the fulfillment of all 

promises is founded. A position that can by no means be maintained, unless 

it appears that such continuance was the sole motive upon which the 

treaties were made. As in many parts of history, we read of ambassadors 

having relinquished their missions, and returned home, upon finding the 

state of things so changed that the object of their embassies was at an 

end.



XXVI. When an emergency arises repugnant to the general intention of an 

act, it is explained by the ancient masters of rhetoric under the head of 

expression and design. Now this variation between the emergency and the 

intention is of a twofold nature. For the will and its intention are to be 

collected either from natural reason or from some outward sign. In judging 

of the will by natural reason, Aristotle, who has treated the subject with 

great accuracy, makes the MIND the SEAT OF JUDGMENT, and the WILL the SEAT 

OF EQUITY, which he nobly defines to be the correction of that, wherein 

the law, by reason of its universal nature is defective.



And upon this principle all wills and treaties ought to be interpreted. 

For as all cases could neither be foreseen nor expressed by the lawgiver, 

it is necessary to leave a power of excepting the cases, which he himself 

would have excepted if he were present. Yet this is not to be done upon 

light grounds; for that would be exercising a controul over the acts of 

another; but is only to be established upon the clearest evidence and 

strongest proofs. The clearest proof we can have of a want of equity, is 

where following the literal meaning of the words would be unlawful, that 

is, repugnant to natural or divine precepts. For such things, as are 

incapable of obligation, are necessarily to be excepted. Quintilian the 

elder, says, " some things although comprehended within the meaning of no 

law form a natural exception." Thus any one, who has promised to return a 

sword, that has been given up to him, ought not to return it into the 

hands of a madman, as danger might result from it to himself or to other 

innocent persons. Likewise a thing, which has been deposited with any one, 

ought not to be returned to the hands of the person, who gave the pledge, 

if the real owner demands it. I prove this says Triphonius to be justice, 

which assigns to every one his own without disturbing the still juster 

claims of another. For the reason, it has been already observed, is 

founded on the institution of property, which makes it unjust not to 

return a thing when the real owner is known.



XXVII. The need of equity too will appear in cases, where following the 

literal meaning of the words will not be absolutely unlawful, yet, upon a 

fair estimation, will be found too hard and intolerable. It might impose a 

hardship inconsistent with the general condition of human nature, or, upon 

comparing the person and matter under consideration with each other, it 

might be found at variance with the general intent of all law, which is to 

prevent evil and to redress injury. Thus, if a person has lent a sum of 

money, or any other thing, for a CERTAIN time, he may justly require the 

repayment or restoration of it WITHIN that time, if he has great need of 

it himself: for acts of kindness are of such a nature, that no one can be 

supposed intentionally to bind himself thereby to manifest inconvenience 

or prejudice. In the same manner a sovereign, who has promised assistance 

to an ally, will, IN EQUITY, be excused from fulfilling his engagement, if 

he wants all his strength at home to ward off danger or hostilities. The 

grant also of immunities or privileges in ORDINARY cases, cannot be 

pleaded as an exemption or exception from the services, which the state in 

PARTICULAR emergencies requires.



From the above instances it appears that Cicero has too loosely worded his 

proposition, "that such promises, as are prejudicial to the person, to 

whom they are given, are not to be kept, nor, if they are more prejudicial 

to the party giving, than beneficial to the person receiving them. "For it 

should not be left to the promiser to judge, whether the fulfillment of 

his engagement will be serviceable to the party receiving it, except in 

the case of the madman cited above: nor is any TRIVIAL or IMAGINARY 

prejudice that might result from it, sufficient to release the obligation. 

But it ought to be such, as, according to the nature of the act, would 

necessarily be supposed to form an exception. Thus any one, having 

promised his assistance to a neighbour at a certain period, would not be 

bound to his engagement, if he were detained at home by the sickness of a 

father or a child. A case, which Cicero, in his first book of offices, has 

put in the following terms, "If any one has undertaken to manage a cause, 

and, in the mean time, his son is taken ill, it will be no breach of duty 

in him not to perform what he has promised." There is a passage in the 

fourth book of Seneca, ON BENEFITS, to the same effect. "I am liable, says 

he, to be charged with levity, and a breach of faith, if, things 

continuing as they were, when I made a promise, I do not perform my 

engagement. But if any change has taken place, it leaves me at liberty to 

reconsider the matter, and releases the obligation. I promised my support 

in court, and it afterwards appeared that the cause would be prejudicial 

to my own father. I promised to take a journey, but afterwards heard that 

the road was infested with robbers. I promised my presence on some 

particular occasion, but was prevented from attending by the sickness of a 

son. In all these cases, to bind me to my engagement, the circumstances 

ought to re. main exactly the same as they were when I made the promise."



XXVIII. It has been said that there are other indications of intention, 

which require an equitable exception in favour of the present case. And 

among such proofs there can be nothing stronger than the same words used 

in another place, not where they directly oppose the present meaning, for 

that would amount to a contradiction, but where they clash with it, owing 

to some unexpected emergency, which the Greek Rhetoricians call a 

circumstantial disagreement.



XXIX. When there is any accidental collision between one part of a written 

document and another, Cicero, in the second book of his treatise ON 

INVENTION, has given rules for deciding which of them ought to have the 

preference. Though his arrangement is not very accurate, yet it is by no 

means to be neglected. To supply therefore this defect of accuracy, the 

rules may be digested in the following order.



In the first place, a PERMISSION ought to give way to a COMMAND: because a 

permission appears to be granted only in case there is no weightier 

objection than its being an exception to a positive precept, nor any 

preponderance in favour of an opposite determination. Consequently, as the 

writer to Herennius says, what is positively prescribed is more powerful 

than a bare permission. 



In the next place what is required to be one at a FIXED time should have 

the preference to what may be done at ANY time. From whence it follows 

that the PROHIBITIONS of a treaty are generally of more weight than its 

INJUNCTIONS: because the prohibitory power operates at ALL times. But it 

is not so with injunctions, unless an express time for their fulfillment 

is named, or they contain a tacit prohibition.



Among those treaties, which, in the above named respects, are equal, the 

preference is given to such as are more particular, and approach nearer to 

the point in question. For where particulars are stated, the case is 

clearer, and requires fewer exceptions than general rules do.



Those prohibitions which have a penalty annexed to them, are of greater 

weight than those, which have not; and those with a greater penalty are 

enforced in preference to those that have a less. Those engagements also 

which are founded -upon causes of less magnitude and importance ought to 

give way to those which have more laudable and useful objects in view.



Lastly it is to be observed that a subsequent law or treaty always repeals 

a former.



From what has been said an inference may be drawn in favour of sworn 

treaties or agreements that they ought to be taken in the most usual 

acception of the words, rejecting all implied limitations and exceptions, 

and such as are not immediately necessary to the subject. Consequently in 

a case, where a sworn treaty or engagement may happen to clash with 

another not enforced by the obligation of an oath, the preference ought to 

be given to the former.



XXX. It is often asked whether in doubtful points, a contract should be 

deemed perfect, before the writings are made and delivered. We find in 

Appian's history of the Mithridatic war, that it was upon this very ground 

Murena objected to the convention between Sylla and Mithridates. However 

it appears plain, unless it has been settled to the contrary, that writing 

ought to be considered admissible as evidence of a contract, though not as 

part of the substance, otherwise it is usually expressed, as in the truce 

with Nabis, which was to be ratified from the clay the terms were WRITTEN 

and DELIVERED to him.



XXXI. We can by no means admit the rule laid down by some writers, who 

maintain, that all engagements of kings, and states, ought to be 

explained, as far as it is possible, upon the principles of the Roman law: 

unless indeed it can be made to appear that among some states, in their 

intercourse with each other, the CIVIL LAW is received as the LAW OF 

NATIONS; a presumption which ought not to be hastily granted.



XXXII. As to the doubt, which Plutarch advances in his Symposiacs, whether 

the words of the party offering, or those of the one accepting a condition 

ought to be most attended to, it appears that where the party accepting 

the terms is the promiser, the nature and substance of the transaction 

will depend upon his words, if they are absolute and unqualified. For if 

the offer is regarded as a positive engagement to do certain acts, then 

the full extent of it will be seen by the necessary repetition of the same 

words in the promise. But before a condition is accepted, it is evident, 

as was seen in the chapter on promises, that the promiser is not bound to 

its fulfillment; for no right has been conferred by the one party, or 

acquired by the other. Therefore the offer of a condition of this kind 

does not amount to a perfect promise.