Page:Harvard Law Review Volume 12.djvu/438

418 them in the circumstances in which they were used, and it is to the end of answering this last question that we let in evidence as to what the circumstances were. But the normal speaker of English is merely a special variety, a literary form, so to speak, of our old friend the prudent man. He is external to the particular writer, and a reference to him as the criterion is simply another instance of the externality of the law.

But then it is said, and this is thought to be the crux, In the case of a gift of Blackacre to John Smith, when the donor owned two Blackacres and the directory reveals two John Smiths, you may give direct evidence of the donor's intention, and it is only an anomaly that you cannot give the same evidence in every case. I think, on the contrary, that the exceptional rule is a proof of the instinctive insight of the judges who established it. I refer again to the theory of our language. By the theory of our language, while other words may mean different things, a proper name means one person or thing and no other. If language perfectly performed its function, as Bentham wanted to make it, it would point out the person or thing named in every case. But under our random system it sometimes happens that your name is idem sonans with mine, and it may be the same even in spelling. But it never means you or me indifferently. In theory of speech your name means you and my name means me, and the two names are different. They are different words. Licet idem sit nomen, tamen diversum est propter diversitatem personæ. In such a case we let in evidence of intention not to help out what theory recognizes as an uncertainty of speech, and to read what the writer meant into what he has tried but failed to say, but, recognizing that he has spoken with theoretic certainty, we inquire what he meant in order to find out what he has said. It is on this ground that there is no contract when the proper name used by one party means one ship, and that used by the other means another. The mere difference of intent as such is immaterial. In the use of common names and words a plea of different meaning from that adopted by the court would be bad, but here the parties have said different things and never have expressed a contract. If the donor, instead of saying "Blackacre," had said