kingdom, or others of inferior rank, besides what was originally designed for the general security, or general benefit; it has no right, either by making a new law, or by repealing an old one, to take away even the reasonable expectancy of advantage from any of its members, unless the general security, or general benefit requires that it should be taken

away.

This account of what may be done in respect of the law of the succession to the crown, where the king alone is the legislative body, will show us, that this law is not a fundamental law of the constitution, but is liable to be changed by the legislative body, and may be changed by it, without breaking in upon the constitution; if the body of the soci ety, either by itself, or by its representatives, is a part of such legislative. Where the constitution has given the sole legislative power to the king; he alone cannot change the succession, which was settled by a law derived from the original legislative power of the society: because this law is binding upon him by means of a compact between him and the people, which, as it established his right, established likewise the succession: and since he is only one of the parties to this compact, he cannot, by any act of his own, set the obligation of it aside. In like manner, the collective body of the society is only one of the parties to the same compact, which vested the legislative power in him: and, consequently, as it cannot, by any act of its own, make this compact void, so neither can it make any law which shall be binding, or repeal any which was binding: because, as long as this compact subsists, it has no legislative power. But neither of these reasons will hold in respect of a legislative body, of which the king is one part, and the body of the society, either by itself or by its representatives, is the other part. For, in such a mixed legislative as this, both the parties to the compact, which fixed the law of the succession, are always present: the king in possession is present on the one part; and the body of the society is present on the other part. If, indeed, the body of the society is itself distinguished into two parts; one of which consists of the select few called nobles, and the other of the bulk of the society, which is usually called the people; in all changes, that are made in the law of the succession to the crown, the concurrence of the nobles, when they are thus considered as a distinct part of the society, is as necessary as the concurrence of the rest of the people: because, the change, if it is duly made, must be made by the joint act of all who were parties in the compact, by which the succession was originally settled. No compact can be released, and no law can be altered, without the consent of all those who are parties to such compact, or without the concurrent act of all those by whose authority such law was established. The consent, therefore, of the king, in present possession, and of what is here called the people, either by themselves or by their representatives, will not be sufficient to produce a change in the succession, without the consent of the nobles; if they were distinct parties to the original settlement of it, and are not represented by the representatives of the people. But where the general body of the society is thus distinguished into the nobles and the people; if the constitutional legislative body consists of the king, who is in possession, and the nobles, and the representatives of the people, there are always present in such a legislative body, all the parties who could be concerned from the first in any settlement

1

of the crown: and, consequently, such a legislative body will have a power to limit or to change the succession for the general security and benefit of the society.

law.

XXII.. We may now understand what sort of king- Controverted sucdoms Grotius is speaking of, when he inquires, who can cession may be decide a controversy that arises in the life-time of a king, settled by civil between two or more claimants to the succession. In those constitutions where the legislative body consists of the king and the whole body of the society, acting either by itself or by its representatives, this can be no question. For, since such a legislative body has a constitutional right of limiting the succession by a civil law, there can be no doubt of its having a like constitutional right of putting an end to a controversy of this sort by the same means.

The inquiry, therefore, relates to those constitutions only, where the king alone is the constitutional legislative body. Grotius tells his readers, in express words, that he had such a kingdom in his mind: and if he had not told them so, it might easily have been collected from the reason which he gives, why the people could not decide this controversy, and interpret the law of the succession authoritatively, so as finally to determine which of all the competitors has the best claim. The reason which he gives is, that the people have, by the constitution, entrusted all civil jurisdiction to their king. What he adds farther, would, if it was true, increase the difficulty. He supposes the civil jurisdiction to be given, not only to the king, but to his family likewise; so that the people, or the body of the society, whilst any of this family are in being, can have no jurisdiction at all, either by themselves alone, or jointly with the present possessor. But this supposition is not true: the several claimants, or any others of his family, have no civil jurisdiction in his life-time; they have only an expectancy of such a jurisdiction; and this expectancy will fail, if the law, which supports it, is altered before his death. However, the reason, which Grotius alleges, will conclude against the jurisdiction of the people to decide this controversy by themselves, or by their own authority, without this additional supposition: because, without considering the successors, the people have, by the civil constitution, vested the legislative power in the possessor of the crown for the time being.

As the people alone could not decide this controversy for want of legislative power, so neither could the king alone decide it: because, as Grotius observes, the right to the succession is not subject to the jurisdiction of the present possessor, unless in patrimonial kingdoms: in kingdoms, which are not patrimonial, if the king is the constitutional legislative body, the law of the succession comes originally from the people, and by compact between him and the people is made binding upon him.

But though the people alone cannot decide this controversy, for want of legislative power in general; and though the king alone cannot decide it, for want of legislative power in this particular instance, yet upon the principles which have just now been explained, the present possessor of the crown, and the body of the society together, have a right to decide it by a joint act. For all the parties to the original com

Grot. Lib. I. Cap. VII. § XXVII.

pact, by which the succession was settled at first, are included in the king and the body of the society: and, consequently, whatever they do, will be binding upon all.

CHAPTER VII.

OF INTERPRETATION.

I. Interpretation, what.-II. Province of interpretation.-III. Three sorts of interpretation.-IV. Rules of literal interpretation.-V. Mixed interpretation, where to be used.-VI. Three topics of mixed interpretation.-VII. Words are to be construed agreeably to the subject matter.-VIII. Words are to be so construed as to produce a reasonable effect.-IX. Words of a law, or other writing, are to be construed by its circumstances.-X. Strict and large interpretation, what.-XI. Meaning of the writer how extended by rational interpretation.-XII. Meaning of the writer how restrained by rational interpretation.-XIII. Scarce any laws but what naturally admit of rational interpretation.

what.

Interpretation, I. A PROMISE, or a contract, or a will, gives us a right to whatever the promiser, the contractor, or the testator, designed or intended to make ours. But his design or intention, if it is considered merely as an act of his mind, cannot be known to any one besides himself. When, therefore, we speak of his design or intention as the measure of our claim, we must necessarily be understood to mean the design or intention, which he has made known or expressed by some outward mark: because a design or intention, which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist.

In like manner, the obligations that are produced by the civil laws of our country, arise from the intention of the legislator; not merely as this intention is an act of the mind, but as it is declared or expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst he keeps it to himself, produces no effect, and is of no more account than if he had no such intention. Where we have no knowledge, we can be under no obligation. We cannot, therefore, be obliged to comply with his will, where we do not know what his will is. And we can no otherwise know what his will is, than by means of some outward sign or mark, by which this will is expressed or declared.

From hence it appears, that the way to ascertain our claims, as they arise from promises, contracts or wills, and our obligations, as they arise from instituted laws, is to collect the meaning and intention of the promiser, contractor, testator, or lawmaker, from some outward signs or marks. The collecting of a man's intention from such signs or marks is called interpretation. Province of interpretation.

II. Words are the common signs that mankind make use of to declare their intention to one another: and * Grot. Lib. II. Cap. XVI. § I. † Grot. Ibid. § II. IV.

when the words of a man express his meaning plainly, distinctly and perfectly, we have no occasion to have recourse to any other means of interpretation. But sometimes a man's words are obscure; sometimes they are ambiguous; and sometimes they express his meaning so imperfectly, as either to fall short of his intention, and not express the whole of it, or else to exceed his intention, and express more than he designed. In any of these cases, we must have recourse to some other means of interpretation; that is, we must make use of some other signs or marks, besides the words of the speaker or the writer, in order to collect his meaning. These other signs or marks, are what Grotius ranks under the general head of probable conjectures. If we attend to this account of interpretation, to the end that it has in view, and to the means that it employs to come at this end, it will help us to distinguish interpretation from some other arts with which it is frequently con

founded.

Both the end and the means of interpretation will distinguish it from criticism. The end which criticism aims at, is to find out what were the words of a writer; whether, for instance, the writing that is before us, is forged or genuine: whether any parts of it, or at least any material parts, have been foisted in, or omitted, or erased, or altered. The end which interpretation aims at, is to find out what was the intention of the writer; to clear up the meaning of his words, if they are obscure; to ascertain the sense of them, if they are ambiguous; to determine what his design was, where his words express it imperfectly. Without inquiring what means the critic makes use of, we may be sure that they cannot be the same with those that are made use of by the interpreter: for the interpreter's work does not begin till the critic's is ended. We must be in possession of the writer's genuine words, before we can either show from them what his intention was, or can have any grounds for calling in the assistance of conjectures to clear up their meaning, to ascertain their sense, or to determine that the intention of him, who used them, is in any respect different from what they express. It is one thing to determine whether a writing, that is before us, is the genuine will of the person whose will it is pretended to be; and another to determine what was the intention of the testator in that will. The former of these points must be settled, before the latter can properly come into question. We might, indeed, be able to clear up the meaning of the person who dictated that writing: but this would not determine the meaning of the testator with any certainty; if there was any doubt whether that writing was his genuine will or not; unless this doubt was first removed.

Sometimes we are at a loss to find out a writer's meaning, merely because we cannot read his writing: this obscurity may be occasioned by his using either a cypher, or abbreviations, or a hand, that we are unacquainted with. But the clearing up such obscurities as these, is not the proper object of interpretation. It is, indeed, the business of interpretation to find out the meaning or design of a writer. But then it supposes that we are in possession of his words. And where we cannot read his writing, the difficulty of making out his meaning arises from our want of knowing what his words are.

It is not very easy to determine exactly, where the provinces of the grammarian and the lexicographer end, and the province of the inter

preter begins. But though these provinces run into one another at their confines, they are distinct enough at their remotest extremities. The boy who is learning the Hebrew language, by the help of his grammar and his lexicon, is certainly not employed in the same province with the divine, who settles the intent of the Levitical lawgiver. And yet the divine is frequently indebted to nothing else but his skill in the original language, for his discoveries of the meaning of the law. Interpretation certainly supposes us to have a competent knowledge of the language which the writer made use of, whose meaning we are to find out. Until we have acquired such a knowledge as this, we cannot say, whether his words are clear or obscure; whether they are ambiguous or precise. If we are able to read the characters in which he wrote; or if what he has written is read to us by any one else; the words will be only empty sounds, and cannot convey any meaning at all. We may, if we please, call our own ignorance of his language, an obscurity in his writing: but it is such an obscurity as is not to be cleared up by the topics of interpretation, but by the lexicon and the grammar. We do, indeed, call a man an interpreter who translates what is spoken or written in a language of which we are ignorant, into another language with which we are better acquainted. But such a man only supplies the place of a lexicon and a grammar: and if we would speak distinctly and properly, he is rather to be called a translator, than an interpreter. He gives us the words of the speaker or of the writer; and then, by means of the words, or of other conjectures, if such conjectures are necessary, we are to make out the speaker's or the writer's meaning. It seems to be an ignorance of the same sort, though in a less degree, which makes any writing obscure, where we have a competent knowledge of the language, but are not perfect masters of it. This happens sometimes even in our mother tongue, in which, if there are no other words not generally understood, there are at least many terms of art, which are a sort of language by themselves, and are not fully understood by the generality of the people, but by such only as have been employed in the trade or profession, or have studied the science, to which those terms belong. When a man's meaning, in what he speaks or writes, is obscure, because he uses such words as these, it can scarce be looked upon as the province of interpretation to explain it. The only way of clearing up the obscurity is to get a fuller knowledge of the language: this may be done by having recourse to those who understand the terms of art, or other words, that occasion the obscurity: but then, they to whom we thus have recourse, only instruct us in the language, and may be looked upon as translators: because the instruction which they give us, consists in nothing else but in substituting a word, that we do understand, into the place of another, that we do not understand. But since a technical, or other dictionary, would do all for us that they do; if we will call this by the name of interpretation, we may as well give the same name to what we do, when we learn a language of which we were totally ignorant before. In languages, of which we have a competent knowledge, but not so perfect a knowledge as we have of our mother tongue, this sort of obscurity is more frequent: and as we are rather indebted to nice observations of our own upon the language, than to a grammar or a lexicon, for the clearing up such obscurities, we look upon what we do, when we clear