probetur aliter sensisse testatorem," or similar expressions. Courts of Equity, following the rules of the Civil law, down to the time of Lord Cowper, made no objection to receiving the same class of evidence, in doubtful cases; only taking care not to allow it in cases where it might conflict with any of the other classes of evidence of intention, which they justly considered as of higher value. On the other hand, Courts of Law had established another system of rules as to the admis sibility of evidence of this description, applying equally in the interpretation of all writings under seal, whether required by law to be in writing or not; and the result of the collision of these different systems of interpretation has naturally been that, after some confusion, a compromise has been arrived at, and the admission of evidence of the kind in question, in the interpretation of wills, is now regulated by rules altogether arbitrary.

The common-law rules as to the admission of evidence of intention not contained in the writing were two, which are generally included together in Lord Bacon's maxim as to the patent and latent ambiguities, with his comment upon it. As that maxim and comment are perhaps not always properly understood, I will here devote a few words to them. These rules are, as I have said, matters of positive enactment, and Sir James Wigram appears to me to have acted unwisely in rejecting Lord Bacon as his guide, and endeavouring to establish them on a priori principles, which, as I have attempted to show, are not correct. The rules, which are two, are distinct from each other, and they apply equally to all written instruments whether required by law to be in writing or not. maxim "ambiguitas verborum latens verificatione suppletur, nam quod ex facto oritur ambiguuni verificatione facti tollitur," excludes all evidence of intention, direct or circumstantial, not contained in the writing itself, in all cases where the difficulty or problem of interpretation to be solved was such as was apparent on the face of the writing: allowing extrinsic evidence of intention to be introduced only where some fact had to be averred before the difficulty was raised. This, by the help of the system of pleading, operated as a rough and ready rule,

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which let in such evidence in those cases where perhaps it was most necessary, where the difficulty related to some person or thing the subject-matter of the writing; but it undoubtedly, while adhered to, excluded all that kind of evidence referred to in Sir James Wigram's fifth proposition, namely surrounding facts and circumstances relating to the testator's family, &c., wherever the will or other writing was ambiguous on the face of it. It would not be difficult to show that the rule has been gradually relaxed, that evidence of facts and circumstances has by degrees come to be considered admissible in all cases, and that the only rule which is practically now operative in limiting the reception of evidence of intention, is the second rule, prohibiting admission of direct evidence of intention from extrinsic sources. This rule is not any way contained or implied in the maxim of latent and patent ambiguities, but is stated by Lord Bacon in his comment on that maxim, when he says that intention itself may be averred only in the case of equivocation, that is, of homonymous persons or things: because there and there alone it would stand with the words, would not tend to alter the meaning of the words, that is, but would only add a term to that meaning. The common-law system of interpretation, therefore, with a prudent though perhaps excessive jealousy of the inferior kinds of evidence, admitted evidence of intention not contained in the writing, only where the ambiguity of the writing could not be detected on the face of it, and admitted direct evidence of intention not contained in the writing, only in the case of homonymous persons or things.

The rejection or admission of the various kinds of evidence, of the marks or signs of intent other than the meaning of the words, in the process of inferential interpretation, marks the point at which the methods of interpretation applied to different classes of writings begin to diverge from one another, and their characteristics will be henceforth determined by the subject-matter of each, and by considerations peculiar to this or that judicial system, rather than by principles common to all. But it is evident that the grand question in each system will be, what is to be the combined effect of all these other kinds of marks or signs of intent, in comparison with the

original object of attention, the meaning of the words? How far may the meaning of the words be modified by the indications of intent drawn from these other sources? What, in short, are the limits of inferential interpretation? what is to determine how far we may go in correcting or supplementing the written expression, for the purpose of bringing it into harmony with the probable intention? These limits will be in fact two, which it is desirable to separate, though in practice the distinction between them cannot always be recognised. The meaning of the words, as I originally stated, is important in two ways; as a sign of the intent, and as a condition necessary to the legal validity of the writing. As a sign of the intent, it has yielded so far as to admit of other marks or signs being combined with it; as a legal requirement, its necessity remains. The extent to which interpretation may go in modifying the meaning of the words will depend, therefore, first, upon the strength of the presumption that the meaning of the words alone expresses the meaning of the writer; a presumption which, though partially displaced, is yet only forced back as it were like a spring, and continually tends to return; and, secondly, upon the greater or less latitude allowed in the requirement of a sufficient written expression. The result of these two considerations taken together will determine the relative weight, which, in the interpretation of any particular writing or class of writings, is to be assigned to the letter, to the meaning of the words; and how great the strength of proof of intent must be which can add to or correct it. These things, like the boundaries of the jurisdiction of equity itself, can be fixed only in practice and approximatively; but, it is easy to see where some kinds of writings will differ from others. In general, the presumption that the meaning of the words represents the meaning of the writer will be stronger, and require greater cogency in the evidence of intent adduced to vary that meaning, in proportion as the writing is a more formal one, as it presents fewer difficulties and obscurities to the interpreter, and to some extent as the language employed is more technical, and has therefore a more strongly marked and definite meaning. This, of course, would not apply to

documents which, as in the case I referred to of laws according to the Roman conception of them, were framed for the purpose of being interpreted; whether this were done in order that they might be couched in such general terms as to permit of application to distant and varying circumstances, or whether, like some philosophical or moral writings, they were made designedly obscure, in order to veil the writer's meaning from careless or hostile interpreters. But generally speaking, the more formal the writing, the narrower must be the limits of interpretation. This is evidently the ground for the distinction that deeds are to be less liberally interpreted than wills. The moderate rule of the digest-In testamentis plenius voluntates testantium scrutamur-acquires a tinge of contempt in the mouths of clerical judges-Testamentorum benignæ faciendæ sunt interpretationes propter simplicitatem laicorum: and no one familiar with the history of will-construction can doubt, that the liberality of interpretation which distinguishes the decisions of ancient, as, for instance, of Elizabethan times, was the result quite as much of contempt for the letter, as of reverence for the spirit. The increased and increasing strictness of construction is in great part due insensibly to the greater precision which the language itself has acquired, and to the more general possession of the power to use it correctly; interpreters are bound to give writers credit for meaning what they say, instead of making them say what it seems probable they would be likely to mean.

The other limit of interpretation of which I have spoken is the result of the necessity of there being a sufficient written expression; the meaning of the words cannot be added to or corrected beyond a certain point, or the words cease to be capable of bearing the interpretation to be put on them; and, though the intent may be known, there is no expression in which it can clothe itself. It cannot be too often repeated that legal interpretation is not a mere ascertaining of the intent; it acts only by putting a meaning, consistent with the intent, upon the words. And the answer to the question, What is a sufficient written expression? will vary largely with different classes of writings, and under different systems of

jurisprudence. In this respect it is manifest that private documents must be interpreted more strictly than public. A deed or will made by a private person is made with the knowledge of the command of the law, which requires the writer to express himself fully and completely, and gives validity to the instrument only on the condition of reasonable compliance with the demand which it has imposed. On the other hand a document, such as a treaty, which as to its form is almost. wholly independent of every thing but the will of the contracting parties, leaves the amount of the expression much less determinate; and, although an intention must fail of effect which has no corresponding expression of any kind in the document, yet the interpreter must resort very much to the inferred will of the parties themselves for a criterion of sufficiency of expression, which thus becomes almost merged in the general inquiry after the probable intention-meaning, as I do, by intention, wherever it occurs in this paper, not a mere inchoate act of the mind, that which a person intended to do, but took no step towards doing, but something which as a mental act was complete, and which the writer endeavoured to express by the words he made use of, although those words in fact express his meaning more or less imperfectly.

In the interpretation of writings where the latitude allowed to the interpreter is considerable, and particularly where direct evidence of intention not contained in the writing is admitted, the question of what is a sufficient written expression becomes evidently of great practical importance. If a perfectly definite intent can be collected by the aid only of collateral evidence of it, coupled with the meaning of the words, it is probable that the latter element, that of the meaning of the words, bears a sufficiently great proportion to the former, to assure the interpreter that the words will bear the meaning, and express it sufficiently. But this security does not exist where parol declarations of intention, for example, are admissible. The undoubted fact that no general definition of what is in such cases a sufficient expression can be fixed upon beforehand, is made use of by Sir James Wigram as a constant argument against admitting evidence of intention generally.

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