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Chapter XVI. Of Interpretation, or the Way of explaining the Sense of a Promise or Convention
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848 u c h a p t e r x v i u Of Interpretation, or the Way of explaining the Sense of a Promise or Convention. I. 1. If we respect the Promiser only, he is obliged to perform freely, what he was willing to be obliged to. When you promise, says Cicero, 1 we must consider rather what you mean than what you say. But because the inward Acts and Motions of the Mind are not in themselves discernible, and there would be no Obligation at all by Promises, if every Man were left to his Liberty, to put what Constructionhepleaseduponthem,therefore some certain Rule must be agreed on, whereby we may know, what our Promisesobligeusto;andherenaturalReasonwilltellus,thatthePerson to whom the Promise is given, has a Power to force him who gave it, to do what the right Interpretation of the Words of his Promise does require . For otherwise no Business could come to a Conclusion, which in moral Things is reckoned impossible. Perhaps it was in this Sense that Isocrates, treating of Agreements, in his Prescription against Callimachus , said Toútw nómw Koinw ‚ pántec a ⁄njrwpoi diatelou ÷menxrẃmenoi, (as the learned Peter Faber has judiciously corrected that Passage) We always make use of this Law, as a Law that is common to all Mankind, 2 I. (1) De Offic. Lib. I. Cap. XIII. These Words probably are not Cicero’s Words; for neither they, nor some that go before them, are to be found in most Manuscripts, nor in the oldest printed Editions. 2. Neither this Passage, nor the Sequel of the Oration from which it is taken, contains any Thing that gives Reason to think the Orator speaks of the Manner of explaining Agreements. He supposes the Sense of them clear, and on that Foot considers the Obligation of standing to them, as acknowledged by all Nations. I. How Promises do outwardly oblige. interpretation of a promise or convention 849 not only the Greeks, but the Barbarians too, as the same Author had a little before expressed it. 2. And to this agrees that Clause in the antient Form of Leagues, mentioned by Livy, 3 Without any Trick or Collusion, 4 just as the Words are now used and understood. The best Rule of Interpretation is to guess at the Will by the most probable Signs, 5 which Signs are of two Sorts, Words and Conjectures; which are sometimes considered separately, sometimes together. II. If no Conjecture guides us otherwise, the Words are to be understood according to their Propriety, 1 not the grammatical one, which regards the Etymon and Original of them, but what is vulgar and most in Use, for Use is the Judge, the Law, and Rule of Speech. Rosc. And therefore it was a foolish pitiful Shift that 2 the Locrians made Use of, when, having put some Mould into their Shoes, and carrying some Heads of Garlick privately on their Shoulders, they swore they would keep the Articles of the Treaty, as long as they carried those Heads on their Shoulders, and trod on that Earth, and then threw the Earth out of their Shoes, and the Heads of Garlick from their Shoulders, as if by that poor Means they were absolved from their Oaths; which Story is in Polybius. We have also several Examples of the like Treachery in Po3 . Lib. I. Cap. XXIV. Num. 7. 4. The Hebrews, upon the thirtieth of Numbers, observe, that Vows are to be interpreted as they are commonly taken. Grotius. 5. Pufendorf has treated on this subject, B. V. Chap. XII. where he only explains and ratifies our Author’s Thoughts; and the Notesare of Useincorrectingthemboth. II. (1) It is very well remarked by Procopius, Vandal. I. where he treats of the Word Confederates, that Tou ÷ xrónou ta ’c proshgoríac, &c. Time does not mind to keep up the same Denominations that were at first imposed; but even Things themselves are turned and altered just as People please, without any Regard to what they were formerly called. Grotius. 2. Polybius, Lib. XII. just as the Boeotians, who promising to restore a City, did restore it, not standing, but ruined and demolished. Thucydides, V. And as Sultan Mahomet, who havingtakenEuboea, cutaPersonasunderintheMiddle,whoseHead he had promised should be safe. Grotius. II. Words to be understood as commonly taken unless there are good Conjectures to the contrary. [3.81.30.41] Project MUSE (2024-03-28 20:23 GMT) 850...