[CHAPTER XVI.]
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, he is naturally bound to fulfil his engagements. Good faith, observes Cicero, requires that a man should consider as well what he intends, as what he 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.[45] 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.[46]