International law; Natural law; War (International law)
XII. After the establishment of the former positions, the subject
naturally proceeds to the rules themselves, which are to be observed
in the interpretation of treaties. And in the first place we may
remark, that in things, which are not of an odious nature, words are
to be taken strictly in their popular meaning, and where they admit of
exceptions, or have more significations than one, it is lawful to use
that which is most extensive. As it has been already observed, that
both Logicians and Grammarians frequently use particular terms in a
general sense. Thus Cicero in pleading for Caecina, justly maintains
that the interlocutory decree, ordering THAT THE PERSON EJECTED FROM
HIS INHERITANCE SHOULD BE REINSTATED IN THE POSSESSION, implies not
only an ejectment, but extends to any forcible prevention of the
owner's taking possession.
In things of a favourable nature, if the parties engaged are acquainted
with the legal principles, upon which they proceed, or rest upon the
judgment of those who are so, the words used may be taken in their most
extensive signification, including even terms of art and of law.[47]
Again, we must never have recourse to a metaphorical interpretation,
except where the literal meaning would lead to a direct absurdity, or
would defeat the intention of a treaty.
On the other hand a passage may be interpreted in a more limited
signification, than the words themselves bear, if such interpretation
be necessary, to avoid injustice or absurdity. If no such necessity
exist, but equity or utility manifestly require a restriction to the
literal meaning, it must be most rigidly adhered to, except where
circumstances compel us to do otherwise. But in things of an odious
nature a figurative expression may be allowed in order to avoid
inconvenience or injustice. Therefore, when any one makes a grant, or
relinquishes his right, though he express himself in the MOST GENERAL
terms, his words are usually RESTRICTED to that meaning, which it is
probable he intended. And in cases of this kind, the hope of retaining
a thing is sometimes taken for the act of possession. In the same
manner it is understood that subsidies of men, promised by one party
only, are to be maintained at the expence of the power, who requires
them.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account