Such a privilege, to be perfect, must be neither injurious to a third person, nor prejudicial to the giver. Therefore in explaining the terms, in which it is couched, a greater latitude of interpretation may be allowed, especially where the party suing for it receives no benefit, but rather confers one, and still more so where the advantage, accruing to the individual from thence, redounds also to the public benefit of the state.
Therefore the literal interpretation, which the words may bear, ought to be rejected, unless otherwise some absurdity would follow, or there is every reason to suppose that such a literal interpretation is most conformable to the will and intention of the parties concerned. In the same manner, on the other hand, a greater latitude of interpretation may be allowed, in order to avoid the same apprehended absurdity, or to comply more fully with the most urgent and forcible conjectures respecting the will of the contracting parties.
XV. Hence we may infer that a safe-conduct, granted to SOLDIERS, includes not only those of an INTERMEDIATE RANK, but the HIGHEST COMMANDERS. For that is a signification strictly and properly authorised by the words themselves, although they MAY be taken in a more LIMITED meaning. So the term clergymen includes those of episcopal as well as those of inferior rank, and by those serving on board a fleet, we mean not only sailors, but all persons found there, who have taken the military oath.
XVI. Where a free passage is granted, liberty to return is evidently implied, not from the literal force of the expressions themselves, but to avoid the absurdity which would follow the grant of a privilege, that could never be made use of. And by the liberty of coming and going is meant a safe passage till the person arrives in a place of perfect security. From hence the good faith of Alexander was impeached, who ordered those to be murdered on the way, whom he had allowed to depart.
Any one may be allowed to go away without being allowed to return. But no power can properly refuse admitting any one, to whom he has granted leave to come, and on the other hand, his admission implies such a leave to have been given. Going away and RETURNING are indeed very different, nor can any construction of language give them the same meaning. If there be any mistake, although it may confer no right, it exempts the party from all penalties.—A person permitted to come shall only come ONCE, but not a SECOND TIME, unless the additional mention of some time may supply room to think otherwise.
XVII. A son shares the fate of his father, and a wife of her husband no farther than as to the right of residing, for men reside with their families, but in general undertake public missions without them. Yet one or two servants, though not expressly named, are generally understood to be included in a safe-conduct, especially where it would be improper for the person to go without such attendants. For every necessary consequence is understood to go along with any privilege that is given.
XVIII. In the same manner no other effects are included in a safe-conduct, but such as are usually taken on a journey.
XIX. The name of attendants, expressed in a safe-conduct, granted to any one, will not allow him to extend the protection of it to men of atrocious and criminal characters, such as pirates, robbers, and deserters. And the COUNTRY of the attendants being named shews that the protection cannot extend to those of another nation.
XX. The privileges of a safe-conduct do not, in doubtful cases, expire upon the demise of the sovereign who granted it, according to what was said in a former part of this treatise on the nature of favours granted by kings and sovereign princes.
XXI. It has often been a disputed point, what is meant by the expression used in a safe-conduct, that it shall continue during the PLEASURE OF THE GRANTOR. But there seems most reason and truth in the opinion of those, who maintain that the privilege shall continue, till the grantor make some new declaration of his will to the contrary. Because, in doubtful cases, a favour is presumed to continue, till the right, which it conveys, is accomplished. But not so, where all possibility of WILL in the grantor has ceased, which happens by his death. For upon the death of the person all presumption of his WILL continuing must cease: as an accident vanishes when the substance is destroyed.