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.[48]
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 subsequent emergency repugnant to such intention. Thus if it were evident that an absurdity would follow the fulfilment 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 fulfilment 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.