Mr. Mill notices an ambiguity in the word “right,” which has been made the occasion of an ingenious sophism. A man asserts that he has a right to publish his opinions, which may be true in one sense, namely, that it would be wrong in any other person to hinder or prevent their publication; but it does not follow that, in publishing his opinions, he is doing right, for this is an entirely distinct proposition from the other. Its truth depends upon two things; first, whether he has taken due pains to ascertain that the opinions are true, and second, whether their publication in this manner, and at this time, will probably be beneficial to the interests of truth on the whole. Another sophism, based on the ambiguity of the same word, is that of confounding a right of any kind with a right to enforce that right by resisting or punishing any violation of it, as in the case of a people whose right to good government is ignored by tyrannical rulers. The right or liberty of the people to turn out their rulers is so far from being the same thing as the other, that “it depends upon an immense number of varying circumstances, and is altogether one of the knottiest questions in practical ethics.”
Montaigne complains with good reason that too many definitions, explanations, and replies to difficult questions, are purely verbal. “I demand what ‘nature’ is, what ‘pleasure,’ ‘circle,’ and ‘substitution’ are? The question is about words, and is answer’d accordingly. A stone is a body; but if a man should further urge, and ‘what is body?’ ‘Substance;’ ‘and what is substance?’ and so on, he would drive the respondent to the end of his calepin. We exchange one word for another, and ofttimes for one less understood. I better know what man is, than I know what animal is, or mortal, or rational. To satisfie one doubt, they pop me in the mouth with three; ’tis the Hydra’s head.”[36] There was a time when it was said that the essence of gold and its substantial form consisted in its aureity, and this explanation was supposed to answer all questions, and solve all doubts.
From all this it will be seen that our words are, to a large extent, carelessly employed,—the signs of crude and indefinite generalizations. But even when the greatest care is taken in the employment of words, it is nearly impossible to choose and put them together so exquisitely that a sophist may not wrest and pervert their meaning. Those persons who have ever had a lawsuit need not be told how much ingenious argument may hang on a shade of meaning, to be determined objectively without reference to the fancied intentions of the legislator or the writer. Hardly a week passes, but a valuable bequest is successfully contested through some loophole of ambiguous phraseology. If, in ordinary life, words represent impressions and ideas, in legal instruments they are things; they dispose of property, liberty, and life; they express the will of the lawgiver, and become the masters of our social being. Yet so carelessly are they used by lawyers and legislators, that half the money spent in litigation goes to determine the meanings of words and phrases. O’Connell used to assert that he could drive a coach-and-six through an Act of Parliament. Many of our American enactments yawn with chasms wide enough for a whole railway train. But even when laws have been framed with the most consummate skill, the subtlety of a Choate or a Follett may twist what appears to be the clearest and most unmistakable language into a meaning the very opposite to that which the common sense of mankind would give it.
I have heard Judge Story make the following statement to show the extreme difficulty of framing a statute so as to avoid all ambiguity in its language. Being once employed by Congress to draft an important law, he spent six months in trying to perfect its phraseology, so that its sense would be clear beyond a shadow of a doubt, leaving not the smallest loophole for a lawyer to creep through. Yet, in less than a year, after having heard the arguments of two able attorneys, in a suit which came before him as a Judge of the United States Supreme Court, he was utterly at a loss to decide upon the statute’s meaning!
A signal illustration of the ambiguity that lurks in the most familiar words, is furnished by a legal question that was fruitful of controversy and “costs” not long ago in England. An English nobleman, Lord Henry Seymour, who lived in Paris many years, executed a will in 1856, wherein he made a bequest of property worth seventy thousand pounds to the hospitals of London and Paris. No sooner was it known that he was dead, than the question was raised, “What does ‘London’ mean? Where are its limits, and what is its area? What does it contain, and what does it exclude?” Four groups of claimants appeared, each to some extent opposed by the other three. Group the first said, “The gift is obviously confined to the City proper of London,”—that is, “London within the walls,” comprising little more than half of a square mile. “Not so,” protested group the second; “it extends to all the hospitals within the old bills of mortality,”—that is, London, Westminster, Southwark, and about thirty out-parishes, but excluding Marylebone, St. Pancras, Paddington, Chelsea, and everything beyond. Group the third insisted that “London” included “all the area within the metropolitan boroughs”; while group the fourth, for cogent reasons of their own, were positive that the testator meant, and the true construction was, nothing less than the whole area included within the Registrar-General’s and the Census Commissioner’s interpretation of the word “Metropolis.” The Master of the Rolls decided that the testator meant to use the word “London” in its full, complete, popular sense, as including all the busily occupied districts of what is usually called the Metropolis, as it existed in the year when the will was made. No sooner, however, was this vexed question settled, than another, hardly less puzzling, arose,—namely, What is a “Hospital”? Nearly every kind of charitable institution put in its claim; but it was finally decided that only such charities should share in the bequest as fell within the definition of the French word hospice used in the will.
Another perplexing question which came before the English courts some years ago, and which not less vividly shows the importance of attention to the words we use, related to the meaning of the word “team,” as used by writers generally, and used in a written agreement. A certain noble duke made an agreement with one of his tenants in Oxfordshire concerning the occupancy of a farm, and a portion of the agreement was couched in the following terms: “The tenant to perform each year for the Duke of ——, at the rate of one day’s team-work, with two horses and one proper person, for every fifty pounds of rent, when required (except at hay or corn harvest), without being paid for the same.” In other words, the rent of the farm was made up of two portions, the larger being a money payment, and the former a certain amount of farm service. All went on quietly and smoothly in reference to this agreement, until one particular day, when the duke’s agent or bailiff desired the farmer to send a cart to fetch coals from a railway station to the ducal mansion. “Certainly not,” said the farmer. “I’ll send the horses and a man, but you must find the cart.” “Pooh, pooh! what do you mean? Does not your agreement bind you to do team-work occasionally for his Grace?” “Yes, and here’s the team; two horses and a careful man to drive them.” “But there can’t be a team without a cart or wagon.” “O yes, there can, the horses are the team.” “No, the horses and cart together are the team.”
The question which the court was called on to decide in the lawsuit which followed, was,—What is a “team”? The case was at first tried at Oxford, before a common jury, who gave a verdict substantially for the duke. A rule was afterward obtained, with a view to bring the question of definition before the judges at the Court of Queen’s Bench. The counsel for the duke contended that as team-work cannot be done by horses without a cart or wagon, it is obvious that a team must include a vehicle as well as the horses by which it was to be drawn. Mr. Justice A. said that, in the course of his reading, he had met with some lines which tend to show that the team is separate from the cart,—
“Giles Jelt was sleeping, in his cart he lay;
Some waggish pilf’rers stole his team away.
Giles wakes and cries, ‘Ods Bodikins, what’s here?