CHAPTER L- No direct communion botween the Minds of Men} Signs are ‘necessary. — What Sigas are. —Utterance.— Various Bigne ‘ued to convey Ideas.—Interpretation jie deGition,— Etymology of the word. Interpretation isnot arbitrary, but ‘ought to proceed by rules.—Words; what they ere. Words ‘most common Signs ef Communion between Men.— Inter.” pretation of Words, —Text. — Utterer. 1. There is no direct communion between the minds of men ; whatever thoughts, emotions, con- ceptions, ideas of delight or sufferance we feel urged to impart to other individuals, we cannot object without resorting to the outward of that which moves us inwardly, eh expressions perceptible by the senses. ‘The imost thrilling emotions of a mother’s heart, watching over a suffering child, the most abstract meditation of the philosopher, the sublimest concep- tion of the poet, ar the most faithful devotion of « 2 4 HERMENEUTICS. martyr ina pure and noble cause, can no more be perceived by others or communicated to them with- out signs or manifestations, than the most common desires of daily intercourse, or our physical wants for sustenance or protection, Il. Signs, in this most comprehensive sense, ‘would include all manifestations of the inward man, and extend as well to the deeds performed by an individual inasmuch as they enable us to understand his plans and motives, as to those signs used for the sole purpose of expressing some ideas ; in other words, the term would include all marks, intentional or unintentional, by which one individual may under- stand the mind or the whole disposition of another, ‘as well as those which express a single idea or emo- tion ; for instance, the look of tenderness or tear of compassion, as well as the mile stone on the road, or the skall and cross bones painted on a vessel man, which ever to represent out- wardly what moves him strongly within, a pressing vrseney of utterance, so that men, through all the eres of life and action, feel a want of man- ithout, that which stirs their mind or heart, igh there be no direct object which theyCHAPTER L—SECTION 111., 1, XT egotism; and God may have impressed that urgency of manifestation indelibly upon the human one of the chiefest means of sociability, jion and elevation. For nearly all that is in mankind is owing first of all to this inresistible anxiety of manifestation. IHL. The signs whi which implies intention, ing ideas or notions to various, for instance, gestures, signals uses, the using of purpose of convey- entire periods, or single words, su particular place, and whatever other signs, even the flowers in the flower language of the East, might be ‘enumerated. IV. These signs then are used to convey certain. ideas, and interpretation, the discovery and represen ing of any sigas, used to pressing. (See sect. vi.) ca 18 MERMENEUTICS. Using signs’ does not only signify the origina- tion of their combination in a given case, but also the declared or well understood adoption or sanction of them, wherever there are several pasties, who ‘endeavor to express their ideas by the same com- bination of signs. In the case of & compact, for instance, treaty, Contract, or any act of the nature of an agreement, the party, who avowedly adopts the contract, treaty, oS arg goreCHAPTER 1—SECTION vi, VII, 21 VI. The idea, involved in the term Interpretation, iscover the true meaning of signs, and represent it to others, implies, likewise, that we Proceed in doing so, on safe ground, according to rules established by reason, and not arbitrarily or whimsically. On this account, interpretation, and, as will be seen in the sequel, from conjecture. Still it lies in the nature of things, Conjecture is vague, interpretation is distinet ; but in as far as that, which is to be interpreted, affords Jess and less opportunity for the application of the rules established for interpretation, the latter ap- proaches to conjecture ; provided we have not to apply construction. VIL. ‘Those signs, by which man most frequently endeavors to convey his ideas to another, and by which in most cases he best succeeds in conveying them, are words. and p j) German bra, speak broadly, plainly —The present German word for interpreting I cuslagen, laying 0 spony anlding, TPN 8 cule * 22 HERMENEUTICS. ‘Words are articulate sounds, or the representation of them on or in some material, by certain adopted characters, to which, single or combined, we attach ccortain fixed ideas. notion thus attached to any word is called idea, or the assemblage by several words grammatically connected together, is called the sense or ineaning of the words or period. ‘The true sense or meaning is that which they ought to convey. It is clear, therefore, that the term, true sense, in its most comprehensive adaptation, may signify dif- ferent things, according to the different object we have in view. ‘Thus a teacher will say to his pupil, ‘who has unskilfully expressed himself: ‘you meant to say such a thing, but the true moaning of your period is quite a different one; thet is, the meaning which your words express, according to their signif- cation, and the rules of combining thom, universally adopted, is different from what you intended to say,? + ‘The teacher is right in calling the true sense, that 7 which the words express according to the general rules, for his object is to teach the pupil how to ‘convey his ideas correctly and perspicuously, to make uée, therefore, of the words according to rules. generally adopted, without which there would be no such thing as understanding one another amongCHAPTER I. found out, must needs be hidden in some way or other before it is discovered. Yet words signify ideas or things, and how does it happen, that, if used for the very purpose of conveying our ideas, they can leave any doubt ? ‘The ambiguity of human speech is owing toe ‘vast variety of: causes, at times intentional, at others unintentional, avoidable or unavoideble, owing to the 8 26 BeRMenrurics. utterer, to the words or the situation of things and their changes. ‘The most common or most impor- ‘tant causes will be given here, and it is necessary to weigh them well, since many errors in the highest spheres of politics and Jaw have arisen from an in- sufficient consideration of these causes, and a con- ‘sequent belief, which still manifests itself not unfre- quently in many, that ambiguity can’ be entirely avoided, or that certain instraments of the gravest ‘import do not contain any, and, consequently do not require interpretation. TI Inno case are words, originally, produced ina finished state by the reflecting intellect, and consciougy affixed to objects, presenting themselves to the mind in their clearly defined state, but on the to more generic terms, or a prominent quality strikes s0 manifestly the human mind, that it alone urges to utterance, which in course of time only becomes these processes are going on, at the same time, with many people, subject indeed to the same general laws, but not being under the same specific influen-OBAPTER Ii—SECTION Iv, 8 cate the order without interpretation, however easy, and, consequently, rapid the performance of the process may be. Common sense and good faith tell directed to-do so in the evening, that he should go the next day at the usual hour; 2. that the money handed him by the housekeeper is intended to pay for the meat thus ordered, and not as a present to ‘him ; 8+ that he should buy such meat and of such arts of tho animal, as, to his knowledge, has com- monly been used in the house he stays at, for making soups; 4. that he buy the best meat he can obtain, for a fair price; 5. that he go to that butcher who ‘usually provides the family, with whom the domestic resides, with mest, or to some convenient stall, and ‘ot to any unnecessarily distant place; 6. that he retum the rest of the mone home the meat in good fait ‘on the other hand, the hqusekeeper, afraid isunderstood, had mentioned these eight 30 MERMENEOrics. have required new ones. Where would be the end? We are constrained, then, always, to leave a consid- erable part of oui to be found out by inter- pretation, which, in many cases must necessarily cause greater or Jess obscurity with regard to the exact meaning, which our words were intended to convey. + Experience is a plant growing as slow as conf dence, which Chatham said increased so tardily. plicit and minute as possible, wl tautology and endless 1 the statutes of have at length found out, thi gained by attempting to speak ness, and speech is the ss we endeavor to supply by words and ions, that interpretation which common sense must give to human words. How- ever minutely we mey define, somewhere we needsCHAPTER In—seoTION v. 33 V. Words themselves, as was alluded to, may have an ambiguous sigoification ; this arises from dif- ferent causes. 1. The objects of the physical world are not so distinctly defined from each other as they appear to be at first glance. Innumerable transitions exist be- individual specimens called plants, and extends no farther, or absolutely excludes every thing else. ‘The lawgivers of all countries have found it a difi- cult task to give an exact legal definition of the word arms, and one still more difficult, to define the terms defensive and offeasive arms. In a criminal law+ object sworn to, was, unusually high and wide; considered as a table, low and narrow. 2. Ideas relating to the invisible world flow still more one into another ; not always from want of words, but frequently on account of the gradual transitions from one extreme to another, a HERMENEUTICS. 3. Words themselves mean different things, some- times more, sometim connected with each other; or they do not it among other reasons, the fact, that most words expressive either of abstract ideas, or subjects be- longing to the invisible world are faded tropes, that is, words meaning originally objects of the sensible re now applied to the intellectual. therefore, different people do not connect exactly the same ideas with the same words, although they may be used everywhere. VI. The person, who endeavors to convey some meaning to us, may not use the proper means. 1, He may be illiterate and not use the words in their most proper or generally adopted meaning. 2. He may not be sufficiently trained in grammar, to know the different signification and effect which 8 word acquires by a different position, 8. He may speak or write on the spur of the moment, or in great excitement, and not be able to select those means of conveying bis ideas, which calm deliberation would have suggested. 4, He may be sick or dying, and not be as fully master of the means of expression, as he was in & healthy state; which is not unfrequently the case,CHAPTER I1—sEcTION Ix. 37 words have in a foreign idiom or had in that lan guage, at a particular period, or with a particular author. ‘The person wlio speaks or writes, may not be decidedly clear himself on what he speaks or writes ; he may not be fully master of the subject. Is ideas, therefore, may yet be vacillating, so that the different parts of what he utters, are not strictly consistent with one another. It may be the intention of the speaker or writer, not to speak plainly, from kindness, fear, cunning, alice, caution, as in times of war or revolution, or any other motive. He may be desirous of leaving 1) Whom he addresses, a choice of means ot or he may purposely express himself so that at some future period, he may be at to resort to one or the other meaning, acoord- 1g to convenience or interest. IX. Decorum, especially, may be the reason of not expressing ourselves so plainly and distinctly, as a knowledge of the subject and mastery of the lan- guage would otherwise enable us to do. Thus the Prussian Code, Vol. ii. Tit. xx. 1069, says: —— And other unnatural sins of a similar,kind, which cannot be meationed here, on account of their 4 ae HERMENEUTICS. vileness, demand an utter extinction of their mem- letter: ‘they utter things in their oaths which we ‘cannot meation.’* X. It may be the object of the utterer, to clothe the true sense in various tropes, in metaphors, allegoties, as poets frequently do. Or it may not be possible to express, what we wish to say, in any botter way, then by an approximation to it, by way of tropes or other figurative language. ‘The speaker or writer may, purposely or involun- tarily, use such words as would express far more than his calm and settled opinion, were they to be taken literally, oF were not great deduction to be made from them. but imperfectly or not at all ac- the subject, to which the words of the discourse relate, for instance to customs, persons or ‘events of nations, removed from us at a great dis- tance either by space or time. ‘may not micundersgad th expresion id thatthe ‘brides hie other of his formerCHAPTER I1—sroTroN x11. 41 interpretation and consequent commentaries, by fram~ ing codes of law which should be so complete and exact as to render inte diminish Titigation, ond to moke lawyers compara~ tively useless, was one of the objects of the Prussian code, promulgated by Frederick the Great. Napo- eon said, according to the Mémorial de St. Hélene, by Las Cases, that he once entertained: the idea, ‘that all principles of law might be reduced to a few concise forms, which ought to be combined accord- ing to fixed rules, similar to those of mathematics ; and thot thus simplicity and certainty of law might be established. He soon, however, gave up the idea, when he camo to discuss the various parts of the French civil code, with the other -members of the committee appointed to draw up that work. In Bavaria, commentaries on the penal code are actually prohibited. With tue wisdom did the government of that country officially publish the motives, explanations, &c., which were given in the course of the discussions in the king’s privy council, for adopting the various laws. They have been drawn up and reduced to a systematic whole, published in three volumes, Munich, 1813, and 1814. But it was not equally wise to prohibit commentaries ; for those who advised the Kiig 20 10 do, forgot, that as they felt bound to explain the 4 ation superfluous. To _ a2 HERMENEUTICS. various provisions of the code, so would their own can possibly provide for all 5 most frequently consist of a com elements ; nearly every case in complex cone ; and because the various relations of men are forever changing. ‘This remarkable probibition of commentaries in Bavaria, is to be found in the royal mandate of October 19, 1813, by Maximilian Joseph, to all the courts of appeal, printed before the Notes 10 + the Penal Code for the kingdom of Bavaria, acoord- ou, with regard to all points which depend upon the interpretation of the penal code, the sense and motive of a legal distine- tion, and the principles of their application, to refer to the notes, and expressly to mention the respective Feport for inquiry as to a doubtful our express order, that beside: ordered by ourselves, no office private scholar, shall publish a commentary on theCHAPTER 11—sEcTION xiv. 45 ‘The impossibility of closing the law, as it were, has already been acknowledged. In France, and in Prussia many large volumes of complements (Er- in the nature of things, of our mind and oa guage ; and in those countries where codes have been established, as in France, Bavaria, Austria, Prussia, &c., some authority is always designated from which, in doubtful cases, explanations shall be obtained; as the council of state, the minister of Justice, or some law committee appointed for that arpose. XIV. The Austrian civil code, introduction, paragraph 8, says, The lawgiver alone has the authority of giving an interpretation of general and binding authority. An interpretation of this sort i to be applied to all cases yet to be decided, if’ lawgiver does not add expresely, that his interpreta tion shall not apply to the decision of those cases ‘The Prussian code says, in 47, (If the judge finds the proper sense of the law 46 HERMENEUTICS. ambiguous, he has to inform the law committee of * his doubts, and to ask for its decision, without, how- jing the litigating parties.’ Paragraph ige of inquiry is bound to found his ease upon the judgment of the law parties, however, retain their right of resorting to the usual remedies.” Several of these provisions have been adopted from the Roman law. The Roman Emperor decided doubtful eases, which had been reported to him in writing, ‘by ‘decreta.” See Li. 1. f de Const. Princ. L. fin. pr. de Legib. Seo, also, 1 ians say, Est autem non raro necessaria Jegis interpretatio ; quam solus quidem facit legisla- tor, in quantum interpretatio vim legis habitura est, Quo respicit, quod scriptum est, uti Ieges condere, ita ot easdem interpreta, solo imperio digaum esse.? Voet Comment, ad Pandectas, Li, Tit. IIL. 18, and every other commentator of the Corpus Juris. ‘The late Mr. Edward Livingston provides in his penal code that ‘if any penal law shall be, so inac~ been the intention of the legislature, 20 to punish, the acoused must be acquitted ; but the court shall Teport such case to the legislature at their nextCHAPTER I1—SECTION only out of the general scerntyof haan speech, bat frequently also out of the ambiguous terminology of other sciences, arts, &c. Should the lew setile before-hand the meaning of all terms? Aud. what is to bo done with reference to the new thisgeYand relations, which are discovered, invented, or estabe lished, and must, in suits which may occur, be question has arisen, whether the Bermudas belong to the West Indies or not, and, upon inquiry, it was found that the geographical books differed on this the most comprehensive plan of acode? The law could only then be absolutely certain, when mankind had ceased to be a living, moving society—a society, whose very existence depends upon an infinite en- twining and interweaving of countless interests. XVL- A@@Pirnes there have exited masy people who, seeing how often in matters of law, as in all other. branches, the formality is seized upon instead of the i unguarded.crowds, declaim against the niceties of the law, and ‘against careful interpretation, 6 eenaznzrios. as being mere subtleties of the lawyers to harass litigating parties and draw their own profit from a protracted administration of justice. No one who Knows the least of the history of judicial adminis- tration, or has had an opportunity to observe it in ‘some countries at the present time, will venture to deny, thet no branch of goverment has been at some periods and is to this day in some countries— witness for instance Spain and the Spanish colonies, or Germany at the time of the Peasants War, or England when the Star Chamber flourished most, for instance under Charles I—amore scandslously diverted from its real. course, has been a greater eril to the community, for the weal of which alone it is established, than the judiciary department. Lawyers have at times formed an almost invincible legion of herpies. But in viewing evils and endea- voring to find remedies, we must carefully avoid the creating of equally great or greater ones. Again and again have tho people been told to throw of their fetters, and to have justice done by plain men of common sense, and unsophis finds. From ‘ancient times down to the latest, to our own period, it has been asserted, that if the real question were to award true justice according to the simple merits of the case, and not to sitisfy technicalities, the difficulty would not be great and lawyers mightHee Ble tie ale pode smeos soseseyas 04 Suypi0098 siotno £q posaisyornpe oq ysnar ‘open souo sassy 1eq} GonEpuoD om soajoAn! ‘saA—Mon ‘SMT, omy 20) fyueodunun Ajoarseredtioo st wonce yeorpnt Jo soroqds ssoyfyq aq ur wonmaudsoymr Sousysrapm =pe sel OW qpUs ours om sy xosod Saxyem ae] om a1oqa sams aso uy sojnx panos pu apes ‘rodord 4q pasoosd rena sey ogi jo siorsrorar omp “Apsnon + -wopssaoo pew épsnf se op 01 pue “porasdioym oq swe oy yaup Lrossooou s 1 ‘oneredas exe Seusorsrornpe paw Soppeu omy jt 2nq,£ ooyererend w 0g 0} s0sv00 au op 1 noma, “s0u0 wou Suryeut oreo “wans opuat os osom ‘TAX NOTdoas—tt exzavHo eg ‘sornoaNanuan