[192] CHAPTER XVI.

Of Interpretation.

I. 1 IF we merely consider him who has promised, he is bound to perform, without compulsion, that to which he was willing to be bound. In good faith, what you thought, not what you said, is to be considered, says Cicero. But because internal acts of themselves are not an object of sense, and some certain rule must be established, in order that obligations may not be frustrated, as they might be, if any one, by pretending any sense of his words which he chose to assign, could free himself; natural reason dictates that what is promised to any one, compels the promiser to that which a right interpretation suggests; for otherwise the matter would have no determinate result; which in moral matters is held to be impossible. Perhaps it was in this sense that Isocrates, treating of pacts, spoke of the common rule which all observe. So Livy: sine dolo malo intellecta.

2 The measure of right interpretation, is the purpose, as inferred from the most probable signs. These signs are of two kinds, words, and other conjectures; which are considered either separately or conjointly.

II. If there is no conjecture which points another away, the words are to be understood, not according to grammatical and etymological, but popular propriety, as regulated by usage. That was a foolish evasion 193therefore of the Locrians, who, when they had sworn that they would keep their compact as long as they stood upon the earth and carried heads on their shoulders, put earth in their shoes, and heads of garlick on their shoulders, and then threw them sway; as if they could in that way free themselves from their oath: as the story is in Polybius. There are some examples of similar bad faith in Polyænus, which it is not necessary to transcribe, because there is no controversy in such cases. Cicero rightly says, that such artifices do not extenuate, but establish perfidy.

III. In Terms of Art, however, which are popularly hardly intelligible, the definition of the meaning by persons learned in the Art is to be taken: as, what is Treason, what is Parricide; in which writers on Oratory refer to definitions. As Cicero says, Thewords of the Dialecticians are not those of common language, but of their own art, and the same is the case in every art. Thus if in pacts mention be made of an Army, we shall define an Army to be a body of soldiers which openly invades an enemy’s territory; for historians perpetually put in opposition what is done stealthily in the manner of robbers, and that which is done with a regular army. And therefore what numbers make an army, must be judged according to the force of the enemy. Cicero calls six legions with auxiliaries an army. Polybius says, the Roman army consisted commonly of 16,000 Romans and 20,000 allies: but a smaller number may satisfy the name. For Ulpian says, that he commands an army who commands a single legion with the auxiliaries; that is, as Vegetius explains, 10,000 foot and 2000 horse. And Livy makes the force of a regular army 8000 men. In the same way we must judge of a Fleet. So a Fort is a place strong enough to be held against the enemy for a time.

IV. I It is necessary to have recourse to conjectures, when the words or the connexion of the words is ambiguous, admitting of numerous significations, which the Rhetoricians call an Amphiboly^*. The Dialecticians, more subtly, distinguish Homonymy, in which these several senses are in one word, from Amphiboly, in which they are in a connexion of words. The like conjectures are necessary when there is in pacts an Enantiophany, an appearance of contradiction. For the conjectures are to be sought which may reconcile one part with another, if it may be done. For if the contradiction be real, the latter agreement of the contracting parties must supersede the former: because nobody can will two opposite things at the same time: and the nature of acts which depends on the will is, that by a new act of the will they may be changed, either in one part only, as in a law, and a testament, or in several parts at the same time, as in contracts and pacts. Here they speak of Antinomies^*. In these cases, then, the evident obscurity of the word compels us to recur to conjectures.

2 Sometimes the conjectures are so evident, that they spontaneously suggest themselves, even contrary to the more received 194signification of words. This is the received distinction of What is said, and what is meant. The topics, from which conjectures of the meaning are collected, are principally, the Matter, the Effect, and the conjoined Circumstances.

V. From the Matter; as if a truce of 30 days is made, the word Day is to be understood, not of natural days but of civil days; for that agrees with the matter: so the word donare, for giving up one’s rights conditionally: so the word arms, which sometimes means the instruments of war, sometimes armed soldiers, must, according to the matter, be interpreted one way or the other: so he who promises to give up men, must give them up alive, not dead, as the Platæans quibbled. So when persons are to lay down their steel, this is to be satisfied by laying down their swords, not their steel buckles, as Pericles ingeniously suggested; and when men are to be allowed to depart from a city, they are to do so freely and in safety, contrary to Alexander’s proceeding: so to give up the half of the ships, is half the number of whole ships, not each ship cut in halves: as the Romans did to Antiochus. And the like cases must be judged in the same manner.

VI. From the Effect; in which the main case is, when a word taken from ordinary use draws with it an absurd effect. For if the word be ambiguous, the interpretation is rather to be taken which involves no absurdity. Hence the quibble of Brasidas was not to be admitted, who, having promised that he would depart from the Bœotian territory, denied that that was Bœotian territory which he occupied with his army; as if the term were to be understood of warlike possessions, not of the ancient boundaries; in which sense the compact was unmeaning.

VII. Things are conjoined in their origin, or in place. Those are conjoined in their origin which proceed from the same will, although uttered at a different place and time; whence a conjecture is drawn, because in doubtful cases the will is supposed to be in agreement with itself. Thus in Homer, the agreement between Paris and Menelaus, that Helena should be given to the victor, must, from what follows, be so expounded, that he is victor who kills the other. Plutarch gives the reason, that judges take the view which is least ambiguous.

VIII. Of things conjoined in place, that which has the greatest force, is the reason of the law, which many confound with the intention, though in fact it is one of the indications by which we trace the intention. But among conjectures, this is the strongest, if it appear certainly that the will was moved by any reason as a sole cause; for there are often several reasons; and sometimes the will determines itself by its liberty and without regard to reason, which suffices for producing an obligation. Thus a donation made in contemplation of a marriage has no power if the marriage does not follow.

IX. But it is to be remarked, that many words have several sig195nifications, one, stricter, one, laxer; which happens for many causes: either because the name of the genus is appropriated to one species, as in the word cognation, which, meaning any relationship, is used for one kind; and adoption, which meaning any assumption of a child, is used for one with certain formalities: and so in masculine words which are used as common to both genders, when common words are wanting; or because the usage of art is more wide than popular usage; as death, in Civil Law, includes civil death, transportation for life, though it does not mean this in popular language.

X. It is also to be observed, that of the things which are promised, some are promises of favour, others of odium, others mixed, others medium. Those are of favour, which are equal to both parties, and regard the common utility. In proportion as this is greater and more extensive, the greater is the favour included in the promise; as greater, thus, in things which make for peace than for war; and greater for defensive than for other war. Those are promises of odium which lay a burthen on one party only, or on one more than another, and which impose penalties, and nullify acts, and change former promises. If any thing be mixed, as for instance, what changes former agreements, but for the sake of peace, that must be held favourable or odious as the one or the other may predominate, leaning to favourable, cæteris paribus.

XI. The distinction of acts bonæ fidei and stricti juris, so far as it flows from the Roman Law, does not pertain to the Jus Gentium. Yet in a certain sense it may be adapted here: so far as this for instance, that if in any place certain acts have a certain common form, that, so far as it is not changed, is understood to be inherent in the act: in other acts, more indefinite in kind, such as donative, and promise made of mere liberality, we must stand more by the words.

XII. 1 This being understood, the following rules are to be observed: In non-odious promises, the words are to be taken according to the general propriety of popular usage, and if such usage is manifold, according to that which is widest; as that the masculine gender goes for the common gender, and an indefinite for an universal locution. So the words [in the form of the Interdict for recovering possession] Unde quis dejectus est, will apply to restore him who was not ejected, but forbidden to return to his property, as Cicero rightly argued.

2 In favourable promises, if he who speaks understands the law, or if he have had the advice of persons skilled in the law, the words are to be taken more laxly, so that they may include a technical or a legal signification. But we must not recur to significations plainly improper, except otherwise some absurdity or the inutility of the pact would follow. On the other band, words are to be taken more strictly even than propriety requires, if that be necessary to avoid injustice or absurdity; but if the necessity be not such, but a manifest justice 196and utility in the restriction, we must confine ourselves within the narrowest boundaries of propriety, except circumstances counsel another course.

3 In odious promises, figurative language is in some small measure admitted, to avoid the odium. Therefore in a donation and grant of any right, words, however general, are usually restricted to that which was probably thought of. And in this class, that is sometimes spoken of as occupied, which there is hope of retaining. Thus auxiliaries promised on one side only, are understood to be at the expense of him who asks for them.

XIII. 1 It is a noted question, whether under the title of Allies, those are included only who were so at the time of the league being made, or those who became so afterwards; as in the league between the Romans and Carthaginians after the war about Sicily: The allies of each People shall be unharmed by each People. Hence the Romans inferred, that though the league struck with Asdrubal, that he should not pass the Ebro, was not available to them, because the Carthaginians had not ratified it; yet that if the Carthaginians gave their sanction to the act of Annibal who besieged the Saguntines, who had become allies of the Romans after the treaty, war might be declared against them as having violated the treaty. Livy gives the reasons, which are taken almost word for word from Polybius.

How shall we pronounce on this point? That the word allies may mean, in a reasonable usage, both those who were so at the time of making the treaty, and a larger signification including future allies, is indubitable. Which interpretation is to be preferred, we must consider, on the preceding principles: and according to them, we say that it does not comprehend future allies, because it treats of breaking the league, which is a matter of odium, and of taking away the liberty of the Carthaginians, to punish with arms those who had wronged them; which is a natural liberty, not likely to be supposed abdicated.

2 Was it then not lawful for the Romans to take the Saguntines into alliance, or when allied, to defend them? Certainly this was lawful, not in virtue of the league, but in virtue of Natural Law, which they had not abdicated by the treaty: so that the Saguntines should be in the same situation as if no convention had been made about allies: in which case the Carthaginians would not be acting against the league, if they made what they conceived to be a just war against the Saguntines; nor the Romans, if they defended them: just as at the time of Pyrrhus, an agreement was made between the Carthaginians and Romans, that if either of those Peoples made a league with Pyrrhus, it should be lawful for the other to do so likewise. I do not say the war could have been just on both sides; but I deny that this point had to do with the violation of the league: as in the question concerning the Mamertines, Polybius distinguishes the points, whether it was just, and whether it was consistent with the league.

197 3 And this is exactly what the Corcyreans in Thucydides say to the Athenians, that it is lawful for them to send aid to them, and that it is not an objection, that the Athenians had a league with the Lacedæmonians, since by that league it was lawful to acquire new allies. And this opinion the Athenians themselves afterwards followed; for they gave command to their officers that they should not fight against the Corinthians, except they attacked Corcyra, or invaded its soil, in order not to break the league. For it is not at variance with a league, that they who are attacked by one party should be defended by the other, peace remaining as to other matters. Justin says, of these events, that The treaty which they had made in their own name, they broke in the person of their allies, &c. So in the Oration on Halonesus, it appears that, by the peace between the Athenians and Philip, it was provided that the cities of Greece, not comprehended in that treaty, should be free; and if any one attacked them, those comprehended in the peace might defend them. And this is an example in an equal league.

XIV. In an unequal league we shall suppose other terms: that it is agreed that neither of the allies shall make war without permission of the other: which were the terms of the league of the Romans and Carthaginians, after the second Punic war, as mentioned above: as also in the league of the Macedonians and Romans before the reign of Perseus. Since “making war” may include all kinds of war, both offensive and defensive, we must suppose this to be taken in the narrower sense, and to mean offensive war, that the liberty of the parties be not too much restricted.

XV. Of the same nature is that promise of the Romans, that Carthage should be free: which, although, from the nature of the act, it could not be understood of full sovereign power, (for they had already lost the right of making war and other rights,) yet it left some liberty to them, and at least so much, that they should not be compelled to remove the seat of their government by extraneous command. It was in vain, then, that the Romans laid stress on the word Carthage [shall be free,] as if it meant the population, not the city; (which, though an improper expression, might be conceded, the attribute free belonging to the population rather than the city). For in the word, free, αὐτόνομον, as Appian says, there was a mere quibble.

XVI. 1 To this is to be referred that frequent question concerning personal and real pacts. If the transaction be with a free people, it is not doubtful that what is promised is by its nature real, because the subject (the People) is a permanent thing. And even if the state be converted into a kingdom, the league will remain, because the body remains, though the head is changed; and, as we have said, authority exercised by the king does not cease to be the authority of the people. Exception is to be made, if it appears that the cause of the treaty was peculiar to the republican state, as if free cities make a league in defense of their liberty.

198 2 Even if the compact be made with the king, It is not necessarily personal: for as Pedius and Ulpian say, commonly the person is inserted in the compact, not that it may be a personal compact, but that it may appear on the face of it with whom it was made. And if it be added to the treaty, that it is to be perpetual, that it is made for the good of the kingdom, or with him and his successors, as is commonly added in treaties, or for a definite time, it is plainly real. Such appears to have been the treaty of the Romans with king Philip, which, when Perseus his son refused to acknowledge as pertaining to him, war arose on that ground. But other words also, and the matter itself, sometimes supply probable conjecture on this subject.

3 If there be equal conjectures each way (for a real and a personal pact), the result must be that favourable pacts are to be believed real, odious ones, personal. Treaties of peace or commerce are favourable: those made with a view to war, not all odious, as some think, since epimachies, engagements of support in defensive war, are nearer to favour; symmachies, engagements to war in general, nearer to burthens. Add to which, that in a treaty looking to any war, it is presumed that account is had of the prudence and piety of the person treated with, as one who will not undertake a war unjustly, nor even rashly.

4 The maxim, that partnerships are separated by death, I do not here adduce: for that belongs to private partnerships, and is a maxim of Civil Law. Whether the Fidenates, Latins, Etruscans, Sabines, were right or wrong in renouncing their league with the Romans when Romulus, Tullus, Ancus, Priscus and Servius were dead, we cannot judge, not having the words of the treaties extant. Not unlike this is the controversy in Justin, whether the cities which had been tributaries of the Medes, when the empire was changed, had changed their condition. For the argument of Bodinus is by no means to be accepted, that treaties do not pass to the successors of kings, because the force of an oath does not go beyond the person. For the obligation of the oath may bind the person only, while the obligation of the promise may bind the heir.

5 Nor is it true, as he assumes, that treaties depend entirely upon oaths; for the promise of itself gives force to the treaty, and the oath is added only for the sake of religious reverence. So when the Roman people had sworn that they would make a treaty under direction of the Consul, and Valerius the Consul died, some of the Tribunes held that the people was not bound: but Livy judges otherwise: As yet, he says, men had not become, as now, careless of oaths.

XVII. If a treaty be made with a king, and he or his successor be expelled by his subjects, the treaty remains valid: for the right of the kingdom remains with him, though he have lost possession. So Lucan, speaking of the Roman Senate in exile.

XVIII. On the other hand, if an Usurper of the kingdom be 199attacked by its ally with the consent of the true king; or if the oppressor of a free people be so attacked, before the sufficient consent of the people can be obtained; nothing is done against the treaty: for such persons have possession, but not right. As Quintius said to Nabis, We made no alliance with you, but with Pelops, the just and legitimate king of the Lacedæmonians. And these qualities, (just and legitimate,) in treaties, refer to the right of the king and his successors: the cause of Usurpers is an odious cause.

XIX. Chrysippus had treated this question, Whether a prize proposed to him who reaches the goal first should, if both arrive there at the same time, be given to both or to neither. And in fact, the word first is ambiguous: it means either him who gets before all others, or whom none gets before. But because the prizes of excellence are matters of favour; the sounder opinion is, that the two should share the prize: though Scipio, Cæsar, Julian, more liberally gave a full prize to both of those who had mounted the walls at the same time.

And so much of the interpretation which is adapted to the proper or improper signification of words.

XX. 1 There is also another kind of interpretation, from Conjectures extraneous to the signification of the words in which the promise is made: and this interpretation is twofold, either extending or restricting the meaning. But the interpretation which extends, proceeds more difficultly, that which restricts, more easily. For as in all things, in order that the effect may not follow, it is enough if one of the causes be wanting; and in order that it may take place, it is necessary that all conspire; so in obligation also, a conjecture extending the obligation is not lightly to be admitted; and in this case it is much more difficult than in the case which we spoke of before, to assign to words some large but unusual signification. For here, besides the words of promise, we have to look for some conjecture, which ought to be very certain, which may induce an obligation; nor does analogy suffice, we must have identity of reason: nor is it always enough that we can say the words are to be extended for existing reasons: for, as we have said, reason often so operates, that nevertheless, the will may be a sufficient cause, without any reason.

2 Therefore, in order that such an extension may be rightly made, it is necessary that it should be apparent that the reason under which the case comes which we wish to comprehend, should be the sole and efficacious cause which moves the promiser; and that that reason was considered by him in its generality; because otherwise the promise would have been unjust or useless. This is also treated by Rhetoricians in their sections on What is said and what is meant; of which one kind which they mention is, when we always utter the same sentence. But also another section, Onreasoning, belongs to the subject: namely, when from what is written we deduce what is not written, as Quintilian says: and also what is delivered by the Jurists as to what is done fraudulently.

200 3 Take an example in an agreement made that no place shall be walled round, made at a time when there was no other way of fortification. That place cannot even have an earth-work made round it, if it appear that the only cause for prohibiting walls was that the place might not be fortified. An example is often taken in the conditions introduced in the will of a testator in case his posthumous child die, the testament being made by one who fully expected a posthumous child; and the rule is used to extend the dispositions of the testament to the case in which the posthumous child is not born: because it is evident that the will of the testator was moved by the consideration of a progeny which never came into existence: which example we find not only in the Jurists, but also in Cicero and Valerius Maximus.

4 See Cicero in the oration pro Cœcina. And hence the form of interdict, Unde tu me vi dejeceris hominibus coactis armatisve, will hold against all force endangering life, though there may not be a body of armed men. As Cicero says, the legal effect is the same. So Quintilian says, Murder seems to imply steel weapons and blood; but if any one is killed in any other way, we still recur to that law: for instance, if the man be thrown from a precipice. So Isæsus, because by the Attic Law a testament could not be made [by a father haying no son] against the will of a daughter, infers that an adoption could not be made without her consent.

XXI. And on these principles is to be solved that celebrated question which we have in Gellius, about a commission; whether it may be fulfilled, not by the identical thing directed, but by another equally useful or more useful than that which was enjoined by him who gave the commission. For it is lawful to do so, if it be clear that what was prescribed was not prescribed under its special form, but under a more general purpose, which might also be obtained in some other way: thus, he who was ordered to give security for a loan to be made to a third person, might, instead, give an order to the lender to make the payment to the third person; as Scævola held. [Dig. XVII. 1.] But when that is not clear, we must hold, as Crassus says, in Gellius in that place, that the demand of the superior is disregarded, if any one, in place of discharging his commission as directed, respond by advice which was never asked for.

XXII. An interpretation restricting a promise, extraneously to the signification of the words which contain the premise, is derived either from original limitation of the will [of the promiser], or from the repugnance with such will which comes to view in some occurring case. A limitation of the original will is understood—from the absurdity which would evidently follow, if it were not so limited;—from the cessation of the reason which alone fully and efficaciously moved the will ;—and from the defect of the matter.

The first restriction has its ground in the consideration, that no one is supposed to intend what is absurd.

XXIII. The second in this, that what is contained in the pro201mise, 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 εὐγνωμοσύωη, that is equitable insight; and to the will he ascribes a corresponding power, ἐπιείκεια, 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 202as 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 promises 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. (I. 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 203will, 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 Sympo204sium, 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.