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.[49]
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 fulfilment 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 remain 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.[50]
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 done 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 fulfilment 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.[51]
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.