mise, when such a reason is added, or the reason is certain, is not considered nakedly, but so far as it comes under that reason.

XXIV. The third in this, that the matter which is dealt with is always supposed to be present to the mind of the speaker (the promiser), although the words have a wider signification. This way of interpretation also is treated by writers on Rhetoric in the Section, Of what is said and what is meant; and has for its Title, When the same words are used, but not in the same sense.

XXV. 1 But with regard to the reasons [of promisers, as here applied], it is to be noted that there are comprehended therein many things, not as to whether they exist, but as to their power morally considered; and when this holds, the restriction is not to be introduced. Thus if it be stipulated that an army or a fleet is not to be moved into a certain place, it must not be moved thither, though it be done with no purpose of attack. For in the compact, it was not a certain damage, but a danger of any kind which was considered.

2 This also is often disputed, whether promises have in themselves this tacit condition, If things remain in their present state. And this is to be denied, except it be quite clear that the present state of things was included in that sole reason of which we have spoken. Thus we constantly read in history of ambassadors who gave up their commission and returned home, because they understood that the state of things was changed, so that the whole matter or cause of the embassy ceased.

XXVI. 1 The repugnance of an occurring case with the will [of the promiser] is commonly, in writers on oratory, referred to the Section of which I have spoken, Of what is said and what is meant. It is twofold: for the will is either collected from natural reasons, or from some other sign of the will. Aristotle, who has most correctly treated this part, ascribes to the intellect a peculiar power for judging of the will, which he calls γνώμη, or εὐγνωμοσύνη, that is equitable insight; and to the will he ascribes a corresponding power, émieikela, equity, which he ably defines, The correction of the law, when it is defective from the universality of its expression*. And this equity is also to be applied to testaments and compacts in an appropriate manner. For since all cases can neither be foreseen nor expressed, there is a necessity for some liberty for excepting cases which he who has spoken would except if he were present. But this is not to be done rashly; (for that would be for the interpreter to determine the acts of another); but on sufficient indications.

2 The most certain indication is, if in any case to follow the words would be unlawful, that is, at variance with the precepts of Natural or Divine Law. For such cases, since they cannot impose an obligation, must necessarily be excepted. Some things, says Quintilian the father, though they are not comprehended in any terms of the law, are by their nature excepted. Thus he who has received a sword

See E. M. 401.

as a deposit, promising to give it up on demand, is not to give it up to a madman, in order that he may not create danger to himself or to other innocent persons. Tryphoninus says, I agree that it is justice to give to each his own, but in such a way that it may not be again demanded on a better claim by some other person. The reason is, because, as we have elsewhere noted, the force of ownership once introduced, is such that not to restore a thing to the owner, when known, is altogether unjust.

XXVII. 1 A second indication of a reason for deviating from the words of the promiser, in our interpretation, is, if to follow the words will be, not indeed quite unlawful, but to a person fairly estimating the matter, grievous and intolerable: either looking absolutely at the condition of human nature, or comparing the person and thing in question with the end of the act. Thus he who has lent a thing for a few days, may demand it back again within that time, if he himself have great need of it: because this [lending] is an act so beneficial in its nature, that it is not to be supposed that any one would thereby bind himself to his own great inconvenience. Thus he who has promised assistance to a federate ally, will be excused as long as he is in danger at home, so far as he has occasion for his powers. And a concession of immunity from tax and tribute must be understood with reference to daily and yearly taxes, not to those which some extreme necessity requires, and which the State cannot do without.

2 Whence it appears that Cicero spoke too laxly, when he said that your promises are not to be kept which are useless to those to whom they are made; nor if they harm you more than they advantage them. For whether the thing will be useful to him to whom it is promised, the promiser is not the judge, except perhaps when the promisee is mad, of which case we have spoken above: and in order that a promise may not oblige the promiser, it does not suffice that it brings some harm to the promiser; but it must be such harm as according to the nature of the act must be supposed to be excepted in the promiser. Thus he who has promised his neighbour so many days' labour, is not bound if a critical and dangerous disease of his father or his son keeps him away. So Cicero in his Offices. (1. 10.)

3 What Seneca says is to be taken in the same sense, and not to be pushed further: I must keep my promise if all things are the same: but if anything be changed, I am at liberty to revise my decision. Thus I promised to advocate a cause; but it appears that the cause is intended to injure my father: I promised to accompany one on a journey; but it appears that the road is infested with robbers: I was to come at a certain time; but my son is ill, my wife is in childbirth. All must be the same as it was when I promised, to oblige me to keep my word. Understand, all things according to the nature of the act in question, as we have just explained.

XXVIII. We have said that there may also be other signs of the

will, which shew that the case is to be excepted. Among these signs, nothing is more decisive than words used in another place; not when they directly oppose the promise, which is antinomy, as mentioned above; but when unexpectedly and by the very event of things they are in conflict, which the rhetoricians call circumstantial contradiction.

XXIX. 1 In the discussion, Which part of a document ought to prevail in case of such a collision, Cicero has given certain rules from ancient authors; and these, though not, in my judgment, to be rejected, seem to me not to be placed in due order. We shall arrange them in this way:

Permission gives way to command, or, as the writer to Herennius says, command outweighs permission*:

What is to be done at a certain time, is to be preferred to what may be done at any time: and hence a prohibitive pact outweighs an imperative one: except either the time be expressed, or the command contains a tacit prohibition:

Between those pacts which are equal in the above qualities, that is to be preferred which is more peculiar, and comes nearer to the thing for special expressions are commonly more efficacious than general:

:

In prohibitions, that which has a penalty added is to be preferred to that which has not, and that with the greater penalty, to that with the less:

That is to be preferred which rests upon causes more honourable or more useful:

Lastly, that which was last said has most weight †.

2 We must repeat that some pacts are to be understood according to the most received propriety of language, repudiating all tacit and unnecessary restrictions. Whence if a sworn pact be at variance with an unsworn one in a certain event, that is to be preferred which has the sanction of an oath.

XXX. It is also made a question, Whether in a doubtful case a contract is to be held perfect before it is committed to writing and delivered. So Murena argued against the convention of Mithridates and Sylla. It appears plain to me that, except it be agreed otherwise, it must be supposed that writing is adopted as a monument of the contract, not as a part of it. If this is not so, it is expressed, as, From the day when the conditions are written and delivered.

XXXI. I do not admit, what many writers have held, that the contracts of kings and peoples are to be interpreted according to Roman Law; except when the Roman Law has been accepted as belonging to the Law of Nations; which is not lightly to be presumed.

XXXII. As to the question which Plutarch discusses in his Sympo* Barbeyrac says, not always: a universal command gives way to a particular permission.

+ Barbeyrac observes that this last rule is out of place here.

sium, Whether the condition of the offerer or the words of the acceptor are more to be attended to; it appears that, since the acceptor is the promiser, his words must give force to the business, if they are absolute and perfect. If by affirmation (as by saying yes) they respect the words of the offerer, then, from the nature of relative words, these are to be understood as repeated. But before the condition is accepted, the offerer is not bound; till then, the other part acquires no right, even in a promise; and an offer is less than a promise.

I.

WE

E have said above that there are three sources of debts due to us; Pact, Wrong, Law. Of pacts we have sufficiently treated: we come to what by Natural Law is due on account of Wrong. We have given the name of wrong to every fault, either of doing or of omission, which is at variance with what men ought to do, either on the ground of their common connexion, or of some special quality. From such fault arises by Natural Law an obligation, if the wrong be accompanied with damage: namely, the obligation of repairing the wrong.

II. 1 Damage, damnum (perhaps from demo,) is when a man has less than what is his, whether it be his by mere nature, or by some human act in addition, as ownership, pact, law. Things which a man may regard as his by nature are life, not indeed to throw away, but to keep, his body, limbs, fame, honour, his own acts. What is his by ownership and pact, and how, we have shewn above, both as to things, and as to right over others' acts. In like manner the law determines for each what is his, for the law can do more for a man than he can do for himself. Thus a ward has a right to a certain care and diligence from his guardian; the State, from a magistrate; and not only the State, but each citizen, as often as the law expressly, or by clear implication, marks such a consequence.

2 But a mere Moral Claim, which is not properly a Right, and belongs to distributive or assignatory justice, does not produce true ownership, and the consequent obligation of restitution: for that is