THE following maxims will appear very strange to cabinet politicians; and such is the misfortune of mankind, that, to many of those refined conductors of nations, the doctrine of this chapter will be a subject of ridicule. Be it so; but we will, nevertheless, boldy lay down what the law of nature prescribes to nations. Shall we be intimidated by ridicule, when we speak after Cicero? That great man held the reins of the most powerful state that ever existed; and in that station he appeared no less eminent than at the bar. The punctual observance of the law of nature he considered as the most salutary policy to the state. In my preface, I have already quoted this fine passage Nihil est quod adhuc de republica putem dictum, et quo possim longius progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuria not posse, sed hoc verissimum, sine summa justitia rempublicam regi non posse. I might say on good grounds, that, by the words summa justitia, Cicero means that universal justice which consists in completely fulfilling the law of nature. But in another place he explains himself more clearly on this head, and gives us sufficiently to understand that he does not confine the mutual duties of men to the observance of justice, properly so called. "Nothing," says he, "is more agreeable to nature, more capable of affording true satisfaction, than, in imitation of Hercules, to undertake even the most arduous and painful labours for the benefit and preservation of all nations." Magis est secundum naturam, pro omnibus gentibus, si fieri possit, conservandis aut juvandis, maximos labores molestiasque suscipere, imitantem Herculem illum, quem hominum fama, beneficiorum memor, in concilium clestium collocavit, quam vivere in solitudine, non modo sine ullis molestiis, sed, etiam in maximis voluptatibus, abundantem omnibus copiis, ut excellas etiam pulchritudine et viribus. Quocirca optimo quisque et splendidissimo ingenio longe illam vitam huic anteponit. In the same chapter, Cicero expressly refutes those who are for excluding foreigners from the benefit of those duties to which they acknowledge themselves bound towards their fellow-citizens. Qui autem civium rationem dicunt habendam, externorum negant, hi dirimunt communem humani generis societatem; qua sublata, beneficentia, liberalitas, bonitas, justitia, funditus tollitur; quζ qui tollunt, etiam adversus Deos immortales impii judicandi sunt; ab Us enim constitutam inter homines societatem evertunt.
And why should we not hope still to find, among those who are the head of affairs, come wise individuals who are convinced of this great truth, that virtue is, even for sovereigns and political bodies, the most certain road to prosperity and happiness? There is at least one benefit to be expected from the open assertion and publication of sound maxims, which is, that even those who relish them the least are thereby laid under a necessity of keeping within some bounds, lest they should forfeit their characters altogether. To flatter ourselves with the vain expectation that men, and especially men in power, will be inclined strictly to conform to the laws of nature, would be a gross mistake; and to renounce all hope of making impression on some of them, would be to give up mankind for lost.
Nations, being obliged by nature reciprocally to cultivate human society (Prelim. § 11), are bound to observe towards each other all the duties which the safety and advantage of that society require.
The offices of humanity are those succours, those duties, which men owe to each other, as men, that is, as social beings formed to live in society, and standing in need of mutual assistance for their preservation and happiness, and to enable them to live in a manner conformable to their nature. Now, the laws of nature being no less obligatory on nations than on individuals (Prelim. § 5), whatever duties each man owes to other men, the same does each nation, in its way, owe to other nations (Prelim. § 10, &c). Such is the foundation of those common duties of those offices of humanity to which nations are reciprocally bound towards each other. They consist, generally, in doing every thing in our power for the preservation and happiness of others, as far as such conduct is reconcilable with our duties towards ourselves.
The nature and essence of man, who, without the assistance of his fellow-men, is unable to supply all his wants, to preserve himself, to render himself perfect, and to live happily, plainly show us that he is destined to live in society, in the interchange of mutual aid; and, consequently, that all men are, by their very nature and essence, obliged to unite their common efforts for the perfection of their own being and that of their condition. The surest method of succeeding in this pursuit is, that each individual should exert his efforts first for himself and then for others. Hence it follows, that, whatever we owe to ourselves, we likewise owe to others, so far as they stand in need of assistance, and we can grant it to them without being wanting to ourselves. Since, then, one nation, in its way, owes to another nation every duty that one man owes to another man, we may confidently lay down this general principle: one state owes to another state whatever it owes to itself, so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself. Such is the eternal and immutable law of nature. Those who might be alarmed at this doctrine, as totally subversive of the maxims of sound policy, will be relieved from their apprehensions by the two following considerations:
1. Social bodies or sovereign states are much more capable of supplying all their wants than individual men are; and mutual assistance is not so necessary among them, nor so frequently required. Now, in those particulars which a nation can itself perform, no succour is due to it from others.
2. The duties of a nation towards itself, and chiefly the care of its own safety, require much more circumspection and reserve than need be observed by an individual in giving assistance to others. This remark we shall soon illustrate.
Of all the duties of a nation towards itself, the chief object is its preservation and perfection, together with that of its state. The detail given of them in the first book of this work may serve to point out the several objects in relation to which a state may and should assist another state. Every nation ought, on occasion, to labour for the preservation of others, and for securing them from ruin and destruction, as far as it can do this without exposing itself too much. Thus, when a neighbouring nation is unjustly attacked by a powerful enemy who threatens to oppress it, if you can defend it, without exposing yourself to great danger, unquestionably it is your duty to do so. Let it not be said, in objection to this, that a sovereign is not to expose the lives of his soldiers for the safety of a foreign nation with which he has not contracted a defensive alliance. It may be his own case to stand in need of assistance; and, consequently, he is acting for the safety of his own nation in giving energy to the spirit and disposition to afford mutual aid. Accordingly, policy here coincides with and enforces obligation and duty. It is the interest of princes to stop the progress of an ambitious monarch, who aims at aggrandizing himself by subjugating his neighbours. A powerful league was formed in favour of the United Provinces, when threatened with the yoke of Louis XIV. When the Turks laid siege to Vienna, the brave Sobieski, king of Poland, saved the house of Austria. and possibly all Germany, and his own kingdom.
For the same reason, if a nation is afflicted with famine, all those who have provisions to spare ought to relieve her distress, without, however, exposing themselves to want.(89) But, if that nation is able to pay for the provisions thus furnished, it is perfectly lawful to sell them to her at a reasonable rate; for they are not bound to furnish her with what she is herself capable of procuring; and, consequently, there is no obligation of gratuitously bestowing on her such things as she is able to purchase. To give assistance in such extreme necessity is so essentially conformable to humanity, that the duty is seldom neglected by any nation that has received the slightest polish of civilization. The great Henry the Fourth could not forbear to comply with it in favour of obstinate rebels who were bent on his destruction.
Whatever be the calamity with which a nation is afflicted, the like assistance is due to it. We have seen little states in Switzerland order public collections to be made in behalf of towns or villages of the neighbouring countries, which had been ruined by fire, and remit them liberal succours; the difference of religion proving no bar to the performance of so humane a deed. The calamities of Portugal have given England an opportunity of fulfilling the duties of humanity with that noble generosity which characterizes a great nation. On the first intelligence of the disastrous fate of Lisbon, the parliament voted a hundred thousand pounds sterling for the relief of an unfortunate people; the king also added considerable sums: ships, laden with provisions and all kinds of succours, were sent away with the utmost despatch; and their arrival convinced the Portuguese that an opposition in belief and worship does not restrain the beneficence of those who understand the claims of humanity. On the same occasion, likewise, the king of Spain signally displayed his tenderness for a near ally, and exerted, in a conspicuous manner, his humanity and generosity.
A nation must not simply confine itself to the preservation of other states; it should likewise, according to its power and their want of its assistance, contribute to their perfection. We have already shown (Prelim. § 13) that natural society imposes on it this general obligation. We are now come to the proper place for treating of the obligation somewhat more in detail. A state is more or less perfect, as it is more or less adapted to attain the end of civil society, which consists in procuring for its members every thing of which they stand in need, for the necessities, the conveniences, and enjoyments of life, and for their happiness in general, in providing for the peaceable enjoyment of property, and the safe and easy administration of justice, and, finally, in defending itself against all foreign violence (Book I. § 15). Every nation therefore, should occasionally, and according to its power, contribute, not only to put another nation in possession of these advantages, but likewise to render it capable of procuring them itself. Accordingly, a learned nation, if applied to for masters and teachers in the sciences, by another nation desirous of shaking off it native barbarism, ought not to refuse such a request. A nation, whose happiness it is to live under wise laws, should on occasion, make it a point of duty to communicate them. Thus, when the wise and virtuous Romans sent ambassadors to Greece to collect good laws, the Greeks were far from rejecting so reasonable and so laudable a request.
But, though a nation be obliged to promote, as far as lies in its power, the perfection of others, it is not entitled forcibly to obtrude these good offices on them. Such an attempt would be a violation of their natural liberty. In order to compel any one to receive a kindness, we must have an authority over him; but nations are absolutely free and independent (Prelim. § 4). Those ambitious Europeans who atlacked the American nations, and subjected them to their greedy dominion, in order, as they pretended, to civilize them, and cause them to be instructed in the true religion, those usurpers, I say, grounded themselves on a pretext equally unjust and ridiculous. It is strange to hear the learned and judicious Grotius assert that a sovereign may justly take up arms to chastise nations which are guilty of enormous transgressions of the law of nature, which treat their parents with inhumanity like the Sogdians, which eat human flesh as the ancient Gauls, &c.7(91) What led him into this error, was, his attributing to every independent man, and of course to every sovereign, an odd kind of right to punish faults which involve an enormous violation of the laws of nature, though they do not affect either his rights or his safety. But we have shown (Book I. § 169) that men derive the right of punishment solely from their right to provide for their own safety; and consequently they cannot claim it except against those by whom they have been injured. Could it escape Grotius, that, notwithstanding all the precautions added by him in the following paragraphs, his opinion opens a door to all the ravages of enthusiasm and fanaticism, and furnishes ambition with numberless pretexts? Mohammed and his successors have desolated and subdued Asia, to avenge the indignity done to the unity of the Godhead; all whom they termed associators or idolaters fell victims to their devout fury.
Since nations ought to perform these duties or offices of humanity towards each other, according as one stands in need, and the other can reasonably comply with them, every nation being free, independent, and sole arbitress of her own actions, it belongs to each to consider whether her situation warrants her in asking or granting any thing on this head. Thus 1. Every nation has a perfect right to ask of another that assistance and those kind offices which she conceives herself to stand in need of. To prevent her, would be doing her an injury. If she makes the application without necessity, she is guilty of a breach of duty; but, in this respect, she is wholly independent of the judgment of others. A nation has a right to ask for these kind offices, but not to demand them.
For, 2. These offices being due only in necessity, and by a nation which can comply with them without being wanting to itself; the nation that is applied to has, on the other hand, a right of judging whether the case really demands them, and whether circumstances will allow her to grant them consistently with that regard which she ought to pay to her own safety and interests: for instance, a nation is in want of corn, and applies to another nation to sell her a quantity of it: in this case it rests with the latter party to judge whether, by a compliance with the request, they will not expose themselves to the danger of a scarcity: and, if they refuse to comply, their determination is to be patienty acquiesced in. We have very lately seen a prudent performance of this duty on the part of Russia: she generously assisted Sweden when threatened with a famine, but refused to other powers the liberty of purchasing corn in Livonia, from the circumstance of standing herself in need of it, and, no doubt, from weighty political motives likewise.
Thus, the right which a nation has to the offices of humanity is but an imperfect one: she cannot compel another nation to the performance of them. The nation that unreasonably refuses them offends against equity, which consists in acting conformably to the imperfect right of another: but thereby no injury is done; injury or injustice being a trespass against the perfect right of another.
It is impossible that nations should mutually discharge all these several duties if they do not love each other. This is the pure source from which the offices of humanity should proceed; they will retain the character and perfection of it. Then nations will be seen sincerely and cheerfully to help each other, earnestly to promote their common welfare, and cultivate peace, without jealousy or distrust.
A real friendship will be seen to reign among them; and this happy state consists in a mutual affection, Every nation is obliged to cultivate the friendship of other nations, and carefully to avoid whatever might kindle their enmity against her. Wise and prudent nations often pursue this line of conduct from views of direct and present interest: a more noble, more general, and less direct interest, is too rarely the motive of politicians. If it be incontestable that men must love each other in order to answer the views of nature and discharge the duties which she prescribes them, as well as for their own private advantage, can it be doubted that nations are under the like reciprocal obligation? Is it in the power of men, on dividing themselves into different political bodies, to break the ties of that universal society which nature has established amongst them?
If a man ought to qualify himself for becoming useful toother men, and a citizen, for rendering useful services to his country and fellow citizens, a nation likewise, in perfecting herself, ought to have in view the acquisition of a greater degree of ability to promote the perfection and happiness of other nations; she should be careful to set them good examples, and avoid setting them a pattern of any thing evil. Imitation is natural to mankind: the virtues of a celebrated nation are sometimes imitated, and much more frequently its vices and defects.
Glory being a possession of great importance to a nation, as we have shown in a particular chapter expressly devoted to the subject, the duty of a nation extends even to the care of the glory of other nations. In the first place, she should, on occasion, contribute to enable them to merit true glory: secondly, she should do them in this respect all the justice due to them, and use all proper endeavours that such justice be universally done them: finally, instead of irritating, she should kindly extenuate the bad effect which some slight blemishes may produce.
From the manner in which we have established the obligation of performing the offices of humanity, it plainly appears to be solely founded on the nature of man. Wherefore, no nation can refuse them to another, under pretence of its professing a different religion; to be entitled to them, it is sufficient that the claimant is our fellow-creature, A conformity of belief and worship may become a new tie of friendship between nations: but no difference in these respects can warrant us in laying aside the character of men, or the sentiments annexed to it. As we have already related (§ 5) some instances well worthy of imitation, let us here do justice to the pontiff who at present fills the see of Rome, and has recently given a very remarkable example, and which cannot be loo highly commended. Information being given to that prince, that several Dutch ships remained at Civita Vecchia, not daring to put to sea for fear of the Algerine corsairs, he immediately issued orders that the frigates of the ecclesiastical state should convoy those ships out of danger; and his nuncio at Brussels received instructions to signify to the ministers of the states-general, that his holiness made it a rule to protect commerce and perform the duties of humanity, without regarding any difference of religion. Such exalted sentiments cannot fail of raising a veneration for Benedict XIV. even amongst Protestants.
How happy would mankind be, were these amiable precepts of nature everywhere observed! Nations would communicate to each other their products and their knowledge; a profound peace would prevail all over the earth, and enrich it with its invaluable fruits; industry, the sciences and the arts would be employed in promoting our happiness, no less than in relieving our wants; violent methods of deciding contests would be no more heard of; all differences would be terminated by moderation, justice, and equity; the world would have the appearance of a large republic; men would live everywhere like brothers, and each individual be a citizen of the universe. That this idea should be but a delightful dream! yet it flows from the nature and essence of man. Put disorderly passions, and private and mistaken interest, will for ever prevent its being realized. Let us then, consider what limitations the present state of men, and the ordinary maxims and conduct of nations, may render necessary in the practice of these precepts of nature, which are in themselves so noble and excellent.
The law of nature cannot condemn the good to become the dupes and prey of the wicked, and the victims of their injustice and ingratitude. Melancholy experience shows that most nations aim only to strengthen and enrich themselves at the expense of others, to domineer over them, and even if an opportunity offers, to oppress and bring them under the yoke. Prudence does not allow us to strengthen an enemy, or one in whom we discover a desire of plundering and oppressing us: and the care of our own safety forbids it. We have seen (§ 3, &c.) that a nation does not owe her assistance and the offices of humanity to other nations, except so far as the grant of them is reconcilable with her duties to herself. Hence, it evidently follows, that, though the universal love of mankind obliges us to grant at all times, and to all, even to our enemies, those offices which can only tend to render them more moderate and virtuous, because no inconvenience is to be apprehended from granting them, we are not obliged to give them such succours as probably may become destructive to ourselves. Thus, 1. The exceeding importance of trade, not only to the wants and conveniences of life, but likewise to the strength of a state, and furnishing it with the means of defending itself against its enemies, and the insatiable avidity of those nations which seek wholly and exclusively to engross it, thus, I say, these circumstances authorize a nation possessed of a branch of trade, or the secret of some important manufacture or fabric, to reserve to herself those sources of wealth, and, instead of communicating them to foreign nations, to take measure against it. But, where the necessaries or conveniences of life are in question, the nation ought to sell them to others at a reasonable price, and not convert her monopoly into a system of odious extortion. To commerce England chiefly owes her greatness, her power, and her safety: who, then, will presume to blame her for endeavouring, by every fair and just method, to retain the several branches of it in her own hand?
2. As to things directly and more particularly useful for war, a nation is under no obligation to sell them to others of whom it has the smallest suspicion; and prudence even declares against it. Thus, by the Roman laws, people were very justly prohibited to instruct the barbarous nations in building galleys. Thus, in England, laws have been enacted to prevent the best method of ship-building from being carried out of the kingdom.
This caution is to be carried farther, with respect to nations more justly suspected. Thus, when the Turks were successfully pursuing their victorious career, and rapidly advancing to the zenith of power, all Christian nations ought, independent of every bigoted consideration, to have considered them as enemies; even the most distant of those nations, though not engaged in any contest with them, would have been justifiable in breaking off all commerce with a people who made it their profession to subdue by force of arms all who would not acknowledge the authority of their prophet.
Let us further observe, with regard to the prince in particular, that he ought not, in affairs of this nature, to obey without reserve all the suggestions of a noble and generous heart impelling him to sacrifice his own interests to the advantage of others, or to motives of generosity; because it is not his private interest that is in question, but that of the state that of the nation who has committed herself to his care. Cicero says that a great and elevated soul despises pleasures, wealth, life itself, and makes no account of them, when the common utility is at stake. He is right, and such sentiments are to be admired in a private person; but generosity is not to be exerted at the expense of others. The head or conductor of a nation ought not to practise that virtue in public affairs without great circumspection, nor to a greater extent than will redound to the glory and real advantage of the state. As to the common good of human society, he ought to pay the same attention to it as the nation he represents would be obliged to pay were the government of her affairs in her own hand.
But, though the duties of a nation towards herself set bounds to the obligation of performing the offices of humanity, they cannot in the least affect the prohibition of doing any harm to others, of causing them any prejudice, in a word, of injuring them .... If every man is, by his very nature, obliged to assist in promoting the perfection of others, much more cogent are the reasons which forbid him to increase their imperfection, and that of their condition. The same duties are incumbent on nations (Prelim. §§ 5, 6). No nation, therefore, ought to commit any actions tending to impair the perfection of other nations, and that of their condition, or to impede their progress, in other words, to injure them. And, since the perfection of a nation consists in her aptitude to attain the end of civil society and the perfection of her condition, in not wanting any of the things necessary to that end (Book I. § 14) no one nation ought to hinder another from attaining the end of civil society, or to render her incapable of attaining it. This general principle forbids nations to practise any evil manuvres tending to create disturbance in another state, to foment discord, to corrupt its citizens, to alienate its allies, to raise enemies against it, to tarnish its glory, and to deprive it of its natural advantages.
However, it will be easily conceived that negligence in fulfilling the common duties of humanity, and even the refusal of these duties or offices, is not an injury. To neglect or refuse contributing to the perfection of a nation, is not impairing that perfection.
It must be further observed, that, when we are making use of our right, when we are doing what we owe to ourselves or to others, if, from this action of ours, any prejudice results to the perfection of another, any detriment to his exterior condition, we are not guilty of an injury we are doing what is lawful, or even what we ought to do. The damage which accrues to the other is no part of our intention: it is merely an accident, the imputability of which must be determined by the particular circumstances. For instance, in case of a lawful defence, the harm we do to the aggressor is not the object we aim at; we act only with a view to our own safety; we make use of our right; and the aggressor alone is chargeable with the mischief which he brings on himself.
Nothing is more opposite to the duties of humanity, nor more contrary to that society which should be cultivated by nations, than offences, or actions which give a just displeasure to others: every nation therefore should carefully avoid giving any other nation real offence: I say real; for, should others take offence at our behaviour when we are only using our rights or fulfilling our duties, the fault lies with them, not with us. Offences excite such asperity and rancour between nations that we should avoid giving any room even for ill-grounded piques, when it can be done without any inconveniency, or failure in our duty. It is said that certain medals and dull jests irritated Louis XIV. against the United Provinces to such a degree as to induce him, in 1672, to undertake the destruction of that republic
The maxims laid down in this chapter, those sacred precepts of nature, were for a long time unknown to nations. The ancients had no notion of any duty they owed to nations with whom they were not united by treaties of friendship. The Jews especially placed a great part of their zeal in hating all nations; and, as a natural consequence, they were detested and despised by them in turn. At length the voice of nature came to be heard among civilized nations; they perceived that all men are brethren. When will the happy time come that they shall behave as such?
ALL men ought to find on earth the things they stand in need of. In the primitive state of communion, they took them wherever they happened to meet with them, if another had not before appropriated them to his own use. The introduction of dominion and property could not deprive men of so essential a right; and, consequently it cannot take place without leaving them, in general, some mean of procuring what is useful or necessary to them. This mean is commerce; by it every man may still supply his wants. Things being now become property, there is no obtaining them without the owner's consent, nor are they usually to be had for nothing; but they may be bought, or exchanged for other things of equal value. Men are, therefore, under an obligation to carry on that commerce with each other, if they wish not to deviate from the views of nature, and this obligation extends also to whole nations or states (Prelim. § 5). It is seldom that nature is seen in one place to produce every thing necessary for the use of man; one country abounds in corn, another in pastures and cattle, a third in timber and metals, &c. If all those countries trade together, as is agreeable to human nature, no one of them will be without such things as are useful and necessary; and the views of nature, our common mother, will be fulfilled. Further, one country is fitter for some kind of products than another, as, for instance, fitter for the vine than for tillage. If trade and barter take place, every nation, on the certainly of procuring what it wants, will employ its land and its industry in the most advantageous manner, and mankind in general prove gainers by it. Such are the foundations of the general obligation incumbent on nations reciprocally to cultivate commerce.
Every nation ought, therefore, not only to countenance trade, as far as it reasonably can, but even to protect and favour it. The care of the public roads, the safety of travellers, the establishment of ports, of places of sale, of well-regulated fairs, all contribute to this end. And, where these are attended with expense, the nation, as we have already observed (Book I, § 103), may, by tolls and other duties equitably proportioned, indemnify itself for its disbursements.
Freedom being very favourable to commerce, it is implied, in the duties of nations, that they should support it as far as possible, instead of cramping it by unnecessary burdens or restrictions. Wherefore, those private privileges and tolls, which obtain in many places, and press so heavily on commerce, are deservedly to be reprobated, unless founded on very important reasons arising from the public good.
Every nation, in virtue of her natural liberty, has a right to trade with those who are willing to correspond with such intentions; and to molest her in the exercise of her right is doing her an injury. The Portuguese, at the time of their great power in the East Indies, were for excluding all other European nations from any commerce with the Indians; but such a pretension, no less iniquitous than chimerical, was treated with contempt; and the other nations agreed to consider any acts of violence in support of it, as just grounds for making war against the Portuguese. This common right of all nations is, at present, generally acknowledged under the appellation of freedom of trade.
But, although it be in general the duty of a nation to carry on commerce with others, and, though each nation has a right to trade with those countries that are willing to encourage her on the other hand, a nation ought to decline a commerce which is disadvantageous or dangerous (Book 1, § 98); and since, in case of collision, her duties to herself are paramount to her duties to others, she has a full and clear right to regulate her conduct, in this respect, by the consideration of what her advantage or safety requires. We have already seen (Book I. § 92), that each nation is, on her own part, the sole judge whether or not it be convenient for her to cultivate such or such branch of commerce. She may, therefore, either embrace or reject any commercial proposals from foreign nations, without affording them any just grounds to accuse her of injustice, or to demand a reason for such refusal, much less to make use of compulsion. She is free in the administration of her affairs, without being accountable to any other. The obligation of trading with other nations is in itself an imperfect obligation (Prelim. § 17), and gives them only an imperfect right; so that, in cases where the commerce would be detrimental, that obligation is entirely void. When the Spaniards attacked the Americans, under a pretence that those people refused to traffic with them, they only endeavoured to throw a colourable veil over their own insatiable avarice.
These few remarks, together with what we have already said on the subject (Book I. Chap. VIII.), may suffice to establish the principles of the natural law of nations respecting the mutual commerce of states. It is not difficult to point out, in general, what are the duties of nations in this respect, and what the law of nature prescribes to them for the good of the great society of mankind. But, as each nation is only so far obliged to carry on commerce with others as she can do it without being wanting to herself, and as the whole ultimately depends on the judgment that each state may form of what it can and ought to do in particular cases, nations cannot count on any thing more than generalities, such as, the inherent liberty of each to carry on trade, and, moreover, on imperfect rights, which depend on the judgment of others, and, consequently, are ever uncertain. Wherefore, if they wish to secure to themselves any definite and constant advantages, they must procure them by treaties.
As express promises and engagements should be inviolable, every wise and virtuous nation will be attentive to examine and weigh a commercial treaty before she concludes it, and to take care that she be not thereby engaged to any thing contrary to the duties which she owes to herself and others.
As express promises and engagements should be inviolable, every wise and virtuous nation will be attentive to examine and weigh a commercial treaty before she concludes it, and to take care that she be not thereby engaged to any thing contrary to the duties which she owes to herself and others.
Nations may, in their treaties, insert such clauses and conditions as they think proper; they are at liberty to make them perpetual, or temporary, or dependent on certain events. It is usually most prudent not to engage for ever, as circumstances may afterwards intervene, by which the treaty might become very oppressive to one of the contracting parties. A nation may confine a treaty to the grant of only a precarious right reserving to herself the liberty of revoking it at pleasure. We have already observed (Book I. § 94) that a simple permission does not any more than long custom (Ibid. § 95), give any perfect right to a trade. Those things namely, permission and customs are therefore not to be confounded with treaties, not even with those which give only a precarious right.
When once a nation has entered into engagements by treaty, she is no longer at liberty to do, in favour of others, contrary to the tenor of the treaty, what she might otherwise have granted to them agreeably to the duties of humanity or the general obligation of mutual commerce; for she is to do for others no more than what is in her power; and, having deprived herself of the liberty of disposing of a thing, that thing is no longer in her power. Therefore, when a nation has engaged to another that she will sell certain merchandise or produce to the latter only as, for instance, corn she can no longer sell it to any other. The case is the same in a contract to purchase certain goods of that nation alone.
But it will be asked, how and on what occasions a nation may enter into engagements which deprive her of the liberty to fulfil her duties to others. As the duties we owe to ourselves are paramount to those we owe to others, if a nation finds her safety and substantial advantage in a treaty of this nature, she is unquestionably justifiable in contracting it, especially as she does not thereby interrupt the general commerce of nations, but simply causes one particular branch of her own commerce to pass through other hands, or insures to a particular people certain things of which they stand in need. If a state which stands in need of salt can secure a supply of it from another, by engaging to sell her corn and cattle only to that other nation, who will doubt but that she has a right to conclude so salutary a treaty? In this case, her corn or cattle are goods which she disposes of for supplying her own wants. But, from what we have observed (§ 28), engagements of this kind are not to be entered into without very good reasons. However, be the reasons good or bad, the treaty is still valid, and other nations have no right to oppose it (§ 27).
Every one is at liberty to renounce his right; a nation, therefore, may lay a restriction on her commerce in favour of another nation, and engage not to traffic in a certain kind of goods, or to forbear trading with such and such a country, &c. And, in departing from such engagements, she acts against the perfect right of the nation with which she has contracted, and the latter has a right to restrain her. The natural liberty of trade is not hurt by treaties of this nature; for that liberty consists only in every nation being unmolested in her right to carry on commerce with those that consent to traffic with her; each one remaining free to embrace or decline a particular branch of commerce, as she shall judge most advantageous to the state.
Nations not only carry on trade for the sake of procuring necessary or useful articles, but also with a view to make it a source of opulence. Now, wherever a profit is to be made, it is equally lawful for every one to participate in it: but the most diligent may lawfully anticipate the others by taking possession of an advantage which lies open to the first occupier; he may even secure the whole entirely to himself, if he has any lawful means of appropriating it. When, therefore, a particular nation is in sole possession of certain articles, another nation may lawfully procure to herself by treaty the advantage of being the only buyer, and then sell them again all over the world. And, as it is indifferent to nations from what hand they receive the commodities they want, provided they obtain them at a reasonable price, the monopoly of this nation does not clash with the general duties of humanity, provided that she do not take advantage of it to set an unreasonable and exorbitant price on her goods. Should she, by an abuse of her monopoly, exact an immoderate profit, this would be an offence against the law of nature, as, by such an exaction, she either deprives other nations of a necessary or agreeable article which nature designed for all men, or obliges them to purchase it at too dear a rate: nevertheless, she does not do them any positive wrong, because, strictly speaking, and according to external right, the owner of a commodity may either keep it or set what price he pleases on it. Thus, the Dutch, by a treaty with the king of Ceylon, have wholly engrossed the cinnamon trade: yet, whilst they keep their profits within just limits, other nations have no right to complain.
But, were the necessaries of life in question were the monopolist inclined to raise them to an excessive price other nations would be authorized by the care of their own safety, and for the advantage of human society, to form a general combination in order to reduce a greedy oppressor to reasonable terms. The right to necessaries is very different from that to things adapted only to convenience and pleasure, which we may dispense with if they be loo dear. It would be absurd that the subsistence and being of other nations should depend on the caprice or avidity of one.
Among the modern institutions for the advantage of commerce, one of the most useful is that of consuls, or persons residing in the large trading cities, and especially the seaports, of foreign countries, with a commission to watch over the rights and privileges of their nation, and to decide disputes between her merchants there. When a nation trades largely with a country, it is requisite to have there a person charged with such a commission: and, as the state which allows of this commerce must naturally favour it, for the same reason, also, it must admit the consul. But, there being no absolute and perfect obligation to this, the nation that wishes to have a consul, must procure this right by the commercial treaty itself.
The consul being charged with the affairs of his sovereign, and receiving his orders, continues his subject, and accountable to him for his actions.
The consul is no public minister (as will appear by what we shall say of the character of ministers, in our fourth book), and cannot pretend to the privileges annexed to such character. Yet, bearing his sovereign's commission, and being in this quality received by the prince in whose dominions he resides, he is, in a certain degree, entitled to the protection of the law of nations. This sovereign, by the very act of receiving him, tacitly engages to allow him all the liberty and safety necessary to the proper discharge of his functions, without which the admission of me consul would be nugatory and delusive.
The functions of a consul require, in the first place, that he be not a subject of the state where he resides: as, in this case, he would be obliged in all things to conform to its orders, and thus not be at liberty to acquit himself of the duties of his office.
They seem even to require that the consul should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned unless he himself violate the law of nations by some enormous crime.
And, though the importance of the consular functions be not so great as to procure to the consul's person the inviolability and absolute independence enjoyed by public ministers, yet, being under the particular protection of the sovereign who employs him, and intrusted with the care of his concerns, if he commits any crime, the respect due to his master requires that he should be sent home to be punished. Such is the mode pursued by states that are inclined to preserve a good understanding with each other. But the surest way is, expressly to settle all these matters, as far as practicable, by the commercial treaty.
Wicquefort, in his treatise of The Ambassador, Book I. § 5, says, that consuls do not enjoy the protection of the law of nations, and that, both in civil and criminal cases, they are subject to the justice of the place where they reside. But the very instances he quotes contradict his proposition. The states-general of the United Provinces, whose consul had been affronted and put under arrest by the governor of Cadiz, complained of it to the court of Madrid as a breach of the law of nations. And, in the year 1634, the republic of Venice was near coming to a rupture with pope Urban VIII. on account of the violence offered to the Venetian consul by the governor of Ancona. The governor, suspecting this consul to have given information detrimental to the commerce of Ancona, had persecuted him, seized his furniture and papers, and caused him to be summoned, declared guilty of contumacy, and banished under pretence that, contrary to public prohibition, he had caused goods to be unloaded in a time of contagion. This consul's successor he likewise imprisoned. The Venetian senate warmly insisted on having due satisfaction: and, on the interposition of the ministers of France, who were apprehensive of an open rupture, the pope obliged the governor of Ancona to give the republic satisfaction accordingly.
In default of treaties, custom is to be the rule on these occasions; for, a prince, who receives a consul without express conditions, is supposed to receive him on the footing established by custom.
EVERY nation, every sovereign and independent state, deserves consideration and respect, because it makes an immediate figure in the grand society of the human race, is independent of all earthly power, and is an assemblage of a great number of men, which is, doubtless, more considerable than any individual. The sovereign represents his whole nation; he unites in his person all its majesty. No individual, though ever so free and independent, can be placed in competition with a sovereign; this would be putting a single person upon an equality with a united multitude of his equals. Nations and sovereigns are, therefore, under an obligation, and at the same time have a right, to maintain their dignity, and to cause it to be respected, as being of the utmost importance to their safety and tranquillity.
We have already observed (Prelim. § 18) that nature has established a perfect equality of rights between independent nations. Consequently, none can naturally lay claim to any superior prerogative: for, whatever privileges any one of them derives from freedom and sovereignty, the others equally derive the same from the same source.
And since precedency or pre-eminence of rank is a prerogative, no nation, no sovereign, can naturally claim it as a right. Why should nations that are not dependent on him give up any point to him against their will? However, as a powerful and extensive state is much more considerable in universal society than a small state, it is reasonable that the latter should yield to the former on occasions where one must necessarily yield to the other, as, in an assembly, and should pay it those more ceremonial deferences which do not, in fact, destroy their equality, and only show a superiority of order, a first place among equals. Other nations will naturally assign the first place to the more powerful state; and it would be equally useless as ridiculous for the weaker one obstinately to contend about it. The antiquity of the state enters also into consideration on these occasions: a new comer cannot dispossess any one of the honours he has enjoyed; and he must produce very strong reasons, before he can obtain a preference.
The form of government is naturally foreign to this question. The dignity, the majesty, resides originally in the body of the state; that of the sovereign is derived from his representing the nation. And can it be imagined that a state possesses more or less dignity according as it is governed by a single person or by many? At present kings claim a superiority of rank over republics: but this pretension has no other support than the superiority of their strength. Formerly, the Roman republic considered all kings as very far beneath them: but the monarchs of Europe, finding none but feeble republics to oppose them, have disdained to admit them to an equality. The republic of Venice, and that of the United Provinces, have obtained the honours of crowned heads; but their ambassadors yield precedency to those of kings.
In consequence of what we have just established, if the form of government in a nation happens to be changed she will still preserve the same honours and rank of which she was before in possession. When England had abolished royalty, Cromwell would suffer no abatement of the honours that had been paid to the crown or to the nation; and he everywhere maintained the English ambassadors in the rank they had always possessed.
If the grades of precedency have been settled by treaties or by long custom founded on tacit consent, it is necessary to conform to the established rule. To dispute with a prince the rank he has acquired in this manner, is doing him an injury, inasmuch as it is an expression of contempt for him, or a violation of engagements that secure to him a right. Thus, by the injudicious partition between the sons of Charlemagne, the elder having obtained the empire, the younger who received the kingdom of France, yielded precedency to him the more readily, as there still remained at that time a recent idea of the majesty of the real Roman empire. His successor followed the rule they found established: they were imitated by the other kings of Europe; and thus the imperial crown continues to possess, without opposition, the first rank in Christendom. With most of the other crowns, the point of precedency remains yet undetermined.
Some people would have us to look upon the precedency of the emperor as something more than the first place among equals; they would fain attribute to him the temporal head of Christendom. And it, in fact, appears that many emperors entertained ideas of such pretensions, as if, by reviving the name of the Roman empire, they could also revive its rights. Other states have been on their guard against these pretensions. We may see in Mezeray the precautions taken by king Charles V. when the emperor Charles IV. visited France, "for fear," says the historian, "lest that prince, and his son, the king of the Romans, should found any right of superiority on his courtesy." Bodinus relates, that "the French took great offence at the Emperor Sigismund's placing himself in the royal seat in full parliament, and at his having knighted the Senechal de Beaucaire ." adding that," to repair the egregious error they had committed in suffering it, they would not allow the same emperor, when at Lyons to make the Count of Savoy a duke." At present, a king of France would doubtless think it a degradation of his dignity, were he to intimate the most distant idea that another might claim any authority in his kingdom
As a nation may confer on her conductor what degree of authority and what rights she thinks proper, she is equally free in regard to the name, the titles, and honours with which she may choose to decorate him. But discretion and the care of her reputation require that she should not, in this respect, deviate too far from the customs commonly established among civilized nations. Let us further observe, that in this point, she ought to be guided by prudence, and inclined to proportion the titles and honours of her chief to the power he possesses, and to the degree of authority with which she chooses to invest him. Titles and honours, it is true, determine nothing: they are but empty names, and vain ceremonies, when they are misplaced: yet, who does not know how powerful an influence they have on the minds of mankind? This is, then, a more serious affair than it appears at the first glance. The nation ought to take care not to debase herself before other states, and not to degrade her chief by too humble a title: she ought to be still more careful not to swell his heart by a vain name, by unbounded honours, so as to inspire him with the idea of arrogating to himself a commensurate authority over her, or of acquiring a proportionate power by unjust conquests. On the other hand, an exalted title may engage the chief to support, with greater firmness, the dignity of the nation. Prudence is guided by circumstances, and, on every occasion keeps within due bounds. "Royalty," says a respectable author, who may be believed on this subject, "rescued the house of Brandenburg from that yoke of servitude under which the house of Austria then kept all the German princes. This was a bait which Frederic I. threw out to all his posterity, saying to them, as it were I have acquired a title for you; do you render yourselves worthy of it: I have laid the foundations of your greatness; it is you who are to finish the work."
If the conductor of the state is sovereign, he has in his hands the rights and authority of the political society; and consequently he may himself determine what title he will assume, and what honours shall be paid to him, unless these have been already determined by the fundamental laws, or that the limits which have been set to his power manifestly oppose such as he wishes to assume. His subjects are equally obliged to obey him in this as in whatever he commands by virtue of a lawful authority. Thus, the Czar Peter I., grounding his pretensions on the vast extent of his dominions, took upon himself the title of emperor.
But foreign nations are not obliged to give way to the will of a sovereign who assumes a new title, or of a people who call their chief by what name they please.
However, if this title has nothing unreasonable, or contrary to received customs, it is altogether agreeable to the mutual duties which bind nations together, to give to a sovereign or conductor of a state the same title that is given him by his people. But if this title is contrary to custom if it implies attributes which do not belong to him who affects it, foreign nations may refuse it without his having reason to complain. The title of "Majesty" is consecrated by custom to monarchs who command great nations. The emperors of Germany have long affected to reserve it to themselves, as belonging solely to the imperial crown. But the kings asserted with reason that there was nothing on earth more eminent or more august than their dignity: they therefore refused the title of Majesty to him who refused it to them; and at present, except in a few instances founded on particular reasons, the title of Majesty is a peculiar attribute of the royal character.
As it would be ridiculous for a petty prince to take the title of king, and assume the style of "Majesty," foreign nations, by refusing to comply with this whim, do nothing but what is conformable to reason and their duty. However, if there reigns anywhere a sovereign, who, nothwithstanding the small extent of his power, is accustomed to receive from his neighbours the title of king, distant nations who would carry on an intercourse with him cannot refuse him that title. It belongs not to them to reform the customs of distant countries.
The sovereign who wishes constantly to receive certain titles and honours from other powers, must secure them by treaties. Those who have entered into engagements in this way are obliged to conform to them, and cannot deviate from the treaties without doing him an injury. Thus, in the examples we have produced (§§ 41 and 42), the czar and the king of Prussia took care to negotiate beforehand with the courts in friendship with them, to secure their being acknowledged under the new titles they intended to assume.
The popes have formerly pretended that it belonged to the tiara alone to create new crowns; they had the confidence to expect that the superstition of princes and nations would allow them so sublime a prerogative. But it was eclipsed at the revival of letters. The emperors of Germany, who formed the same pretensions, were at least countenanced by the example of the ancient Roman emperors. They only want the same power in order to have the same right.
In default of treaties, we ought, with respect to titles, and, in general, every other mark of honour, to conform to the rule established by general custom. To attempt a deviation from it with respect to a nation or sovereign, when there is no particular reason for such innovation, is expressing either contempt or ill-will towards them;" a conduct equally inconsistent with sound policy and with the duties that nations owe to each other.
The greatest monarch ought to respect in every sovereign the eminent character with which he is invested. The independence, the equality of nations, the reciprocal duties of humanity, all these circumstances should induce him to pay, even to the chief of a petty state, the respect due to the station which he fills. The weakest state is composed of men as well as the most powerful: and our duties are the same towards all those who do not depend on us.
But this precept of the law of nature does not extend beyond what is essential to the respect which independent nations owe to each other, or that conduct, in a word, which shows that we acknowledge a state or its chief to be truly independent and sovereign, and consequently entitled to every thing due to the quality of sovereignty. But on the other hand a great monarch being as we have already observed, a very important personage in human society, it is natural, that, in matters merely ceremonial, and not derogatory to the equality of rights between nations, he should receive honours to which a petty prince can have no pretensions: and the latter cannot refuse to pay the former every mark of respect which is not inconsistent with his own independence and sovereignty.
Every nation, every sovereign, ought to maintain their dignity (§ 35) by causing due respect to be paid to them; and, especially, they ought not to suffer that dignity to be impaired. If, then, there are titles and honours, which, by constant custom, belong to a prince, he may insist upon them; and he ought to do it on occasions where his glory is concerned.
But it is proper to distinguish between neglect or the omission of what the established usage requires, and positive acts of disrespect and insult. The prince may complain of an instance of neglect, and, if it be not repaired, may consider it as an indication of ill-will: he has a right to demand, even by force of arms, the reparation of an insult. The czar Peter the First, in his manifesto against Sweden, complained that the cannon had not been fired on his passing at Riga. He might think it strange that they did not pay him this mark of respect, and he might complain of it; but, to have made this the subject of a war, must have indicated a preposterous prodigality of human blood.
IN vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible what is proper and conformable to our duties. We have, then, in general, a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfection, and happiness, that is, to preserve herself from all injuries (§ 18): and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for, when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.
It is safest to prevent the evil when it can be prevented. A nation has a right to resist an injurious attempt, and to make use of force and every honourable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.
When the evil is done, the same right to security authorizes the offended party to endeavour to obtain a complete reparation, and to employ force for that purpose if necessary.
Finally, the offended party have a right to provide for their future security, and to chastise the offender, by inflicting upon him a punishment capable of deterring him thenceforward from similar aggressions, and of intimidating those who might be tempted to imitate him. They may even, if necessary, disable the aggressor from doing further injury. They only make use of their right in all these measures, which they adopt with good reason: and if evil thence results to him who has reduced them to the necessity of taking such steps, he must impute the consequences only to his own injustice.
If, then, there is anywhere a nation of a restless and mischievous disposition, ever ready to injure others, to traverse their designs and to excite domestic disturbances in their dominions, it is not to be doubted that all the others have a right to form a coalition in order to repress and chastise that nation, and to put it for ever after out of her power to injure them. Such would be the just fruits of the policy which Machiavel praises in Cζsar Borgia. The conduct followed by Philip II. king of Spain, was calculated to unite all Europe against him; and it was from just reasons that Henry the Great formed the design of humbling a power whose strength was formidable, and whose maxims were pernicious.
The three preceding propositions are so many principles that furnish the various foundations for a just war, as we shall see in the proper place.
It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury.
The sovereign is he to whom the nation has intrusted the empire and the care of the government: she has invested him with her rights; she alone is directly interested in the manner in which the conductor she has chosen makes use of his power. It does not, then, belong to any foreign power to take cognisance of the administration of that sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it. If he loads his subjects with taxes, and if he treats them with severity, the nation alone is concerned in the business; and no other is called upon to oblige him to amend his conduct and follow more wise and equitable maxims. It is the part of prudence to point out the occasions when officious and amicable representations may be made to him. the Spaniards violated all rules when they set themselves up as judges of the Inca Atahualpa. If that prince had violated the law of nations with respect to them, they would have had a right to punish him. But they accused him of having put some of his subjects to death, of having had several wives, &c. things, for which he was not at all accountable to them; and, to fill up the measure of their extravagant injustice, they condemned him by the laws of Spain.
But, if the prince, by violating the fundamental laws, gives his subjects a legal right to resist him, if tyranny, becoming insupportable, obliges the nation to rise in their own defence, every foreign power has a right to succour an oppressed people who implore their assistance. The English justly complained of James II. The nobility and the most distinguished patriots having determined to check him in the prosecution of his schemes, which manifestly tended to overthrow the constitution, and to destroy the liberties and the religion of the people, applied for assistance to the United Provinces. The authority of the Prince of Orange had, doubtless, an influence on the deliberations of the states-general; but it did not lead them to the commission of an act of injustice: for, when a people, from good reasons take up arms against an oppressor, it is but an act of justice and generosity to assist brave men in the defence of their liberties. Whenever, therefore, matters are carried so far as to produce a civil war, foreign powers may assist that party which appears to them to have justice on its side. He who assists an odious tyrant, he who declares for an unjust and rebellious people, violates his duty. But, when the bands of the political society are broken, or at least suspended, between the sovereign and his people, the contending parties may then be considered as two distinct powers; and, since they are both equally independent of all foreign authority, nobody has a right to judge them. Either may be in the right; and each of those who grant their assistance may imagine that he is acting in support of the better cause. It follows, then in virtue of the voluntary law of nations (see Prelim. § 21), that the two parties may act as having an equal right, and behave to each other accordingly till the decision of the affair.
But we ought not to abuse this maxim, and make a handle of it to authorize odious machinations against the internal tranquillity of states. It is a violation of the law of nations to invite those subject to revolt who actually pay obedience to their sovereign, though they complain of his government.
The practice of nations is conformable to our maxims. When the German protestants came to the assistance of the reformed party in France, the court never attempted to treat them otherwise than on the usual footing of enemies in general, and according to the laws of war. France was at the same time engaged in assisting the Netherlands then in arms against Spain, and expected that her troops should be considered in no other light than as auxiliaries in a regular war. But no power ever fails to complain, as of an atrocious wrong, if any one attempts by his emissaries to excite his subjects to revolt.
As to those monsters who, under the title of sovereigns, render themselves the scourges and horror of the human race, they are savage beasts, whom every brave man may justly exterminate from the face of the earth. All antiquity has praised Hercules for delivering the world from an Antζs, a Busiris, and a Diomede.
After having established the position that foreign nations have no right to interfere in the government of an independent state, it is not difficult to prove that the latter has a right to oppose such interference. To govern herself according to her own pleasure, is a necessary part of her independence. A sovereign state cannot be constrained in this respect, except it be from a particular right which she has herself given to other states by her treaties; and, even if she has given them such a right, yet it cannot, in an affair of so delicate a nature as that of government, be extended beyond the clear and express terms of the treaties. In every other case, a sovereign has a right to treat those as enemies who attempt to interfere in his domestic affairs otherwise than by their good offices.
Religion is in every sense an object of great importance to a nation, and one of the most interesting subjects on which the government can be employed. An independent people are accountable for their religion to God alone; in this particular, as in every other, they have a light to regulate their conduct according to the dictates of their own conscience, and to prevent all foreign interference in an affair of so delicate a nature. The custom, long kept up in Christendom of causing all the affairs of religion to be decided and regulated in a general council, could only have been introduced by the singular circumstance of the submission of the whole church to the same civil government, the Roman empire. When that empire was overthrown, and gave place to many independent kingdoms, this custom was found contrary to the first principles of government, to the very idea of independent states and political societies. It was, however, long supported by prejudice, ignorance, and superstition, by the authority of the popes and the power of the clergy, and still respected even at the time of the reformation. The states who had embraced the reformed religion offered to submit to the decisions of an impartial council lawfully assembled. At present they would not hesitate to declare, that, in matters of religion, they are equally independent of every power on earth, as they are in the affairs of civil government. The general and absolute authority of the pope and council is absurd in every other system than that of those popes who strove to unite all Christendom in a single body, of which they pretended to be the supreme monarchs. But even Catholic sovereigns have endeavoured to restrain that authority within such limits as are consistent with their supreme power: they do not receive the decrees of councils or the popes' bulls till they have caused them to be examined; and these ecclesiastical laws are of no force in their dominions unless confirmed by the prince. In the first book of this work, Chap. XII. we have sufficiently established the rights of a state in matters of religion; and we introduce them hero again, only to draw just consequences from them with respect to the conduct which nations ought to observe towards each other.
It is, then, certain that we cannot in opposition to the will of a nation, interfere in her religious concerns, without violating her rights, and doing her an injury. Much less are we allowed to employ force of arms to oblige her to receive a doctrine and a worship which we consider as divine. What right have men to set themselves up as the defenders and protectors of the cause of God? He can, whenever he pleases, lead nations to the knowledge of himself, by more effectual means than those of violence. Persecutors make no true converts. The monstrous maxim of extending religion by the sword, is a subversion of the rights of mankind, and the most terrible scourge of nations.
But it is an office of humanity to labour, by mild and lawful means, to persuade a nation to receive a religion which we believe to be the only one that is true and salutary. Missionaries may be sent to instruct the people; and this care is altogether comformable to the attention which every nation owes to the perfection and happiness of others. But it must be observed, that, in order to avoid doing an injury to the rights of a sovereign, the missionaries ought to abstain from preaching clandestinely, or without his permission, a new doctrine to his people. He may refuse to accept their proffered services; and, if he orders them to leave his dominions, they ought to obey. They should have a very express order from the King of kings, before they can lawfully disobey a sovereign who commands according to the extent of his power; and the prince who is not convinced of that extraordinary order of the Deity, will do no more than exert his lawful rights, in punishing a missionary for disobedience. But, what if the nation, or a considerable part of the people, are desirous of retaining the missionary, and following his doctrine? In a former part of the work (Book I. §§ 128-136), we have established the rights of the nation and those of the citizens; and thither we refer for an answer to this question.
Every madman will fancy he is fighting in the cause of God, and every aspiring spirit will use that pretext as a cloak for his ambition. While Charlemagne was ravaging Saxony with fire and sword, in order to plant Christianity there, the successors of Mohammed were ravaging Asia and Africa, to establish the Koran in those parts.
This is a very delicate subject; and we cannot authorize an inconsiderate zeal for making proselytes, without endangering the tranquillity of all nations, and even exposing those who are engaged in making converts to act inconsistently with their duty, at the very time they imagine they are accomplishing the most meritorious work. For, it is certainly performing a very bad office to a nation and doing her an essential injury, to spread a false and dangerous religion among the inhabitants. Now, there is no person who does not believe his own religion to be the only true and safe one. Recommend, kindle in all hearts, the ardent zeal of the missionaries, and you will see Europe inundated with Lamas, Bonzes, and Dervises, while monks of all kinds will overrun Asia and Africa. Protestant ministers will crowd to Spain and Italy, in defiance of the Inquisition, while the Jesuits will spread themselves among the Protestants in order to bring them back into the pale of the church. Let the Catholics reproach the Protestants as much as they please with their lukcwarmness, the conduct of the latter is undoubtedly more agreeable to reason and the law of nations. True zeal applies itself to the task of making a holy religion flourish in the countries where it is received, and of rendering it useful to the manners of the people and to the state: and, without forestalling the dispositions of Providence, it can find sufficient employment at home, until an invitation come from foreign nations, or a very evident commission be given from heaven, to preach that religion abroad. Finally, let us add, that before we can lawfully undertake to preach a particular religion to the various nations of the earth, we must ourselves be thoroughly convinced of its truth by the most serious examination. "What! can Christians doubt of their religion?" The Mohammedan entertains no doubt of his. Be ever ready to impart your knowledge, simply and sincerely expose the principles of your belief to those who are desirous of hearing you: instruct them, convince them by evidence, but seek not to hurry them away with the fire of enthusiasm. It is a sufficient charge on each of us, to be responsible for his own conscience. Thus, neither will the light of knowledge be refused to any who wish to receive it, nor will a turbulent zeal disturb the peace of nations.
When a religion is persecuted in one country, foreign nations who profess it may intercede for their brethren: but this is all they can lawfully do, unless the persecution be carried to an intolerable excess: then, indeed, it becomes a case of manifest tyranny, in opposition to which all nations are allowed to assist an unhappy people (§ 56). A regard to their own safety may also authorize them to undertake the defence of the persecuted sufferers A king of France replied to the ambassadors who solicited him to suffer his subjects of the reformed religion to live in peace, "that he was master in his own kingdom," But the Protestant sovereigns, who saw a general conspiracy of the Catholics obstinately bent on their destruction, were so far masters on their side as to be at liberty to give assistance to a body of men who might strengthen their party, and help them to preserve themselves from the ruin with which they were threatened. All distinctions of states and nations are to be disregarded, when there is question of forming a coalition against a set of madmen who would exterminate all those that do not implicitly receive their doctrines.
JUSTICE is the basis of all society, the sure bond of all commerce. Human society, far from being an intercourse of assistance and good offices, would be no longer any thing but a vast scene of robbery, if no respect were paid to this virtue, which secures to every one his own. It is still more necessary between nations than between individuals; because injustice produces more dreadful consequences in the quarrels of these powerful bodies politic, and it is more difficult to obtain redress. The obligation imposed on all men to be just is easily demonstrated from the law of nature. We here take that obligation for granted (as being sufficiently known), and content ourselves with observing that it is not only indispensably binding on nations (Prelim. § 5), but even still more sacred with respect to them, from the importance of its consequences.
All nations are therefore under a strict obligation to cultivate justice towards each other, to observe it scrupulously, and carefully to abstain from every thing that may violate it. Each ought to render to the others what belongs to them, to respect their rights, and to leave them in the peaceable enjoyment of them
From this indispensable obligation which nature imposes on nations, as well as from those obligations which each nation owes to herself, results the right of every state not to suffer any of her rights to be taken away, or any thing which lawfully belongs to her: for, in opposing this, she only acts in conformity to all her duties; and therein consists the right (§ 49).
This right is a perfect one, that is to say, it is accompanied with the right of using force in order to assert it. In vain would nature give us a right to refuse submitting to injustice, in vain would she oblige others to be just in their dealings with us, if we could not lawfully make use of force, when they refused to discharge this duty. The just would lie at the mercy of avarice and injustice, and all their rights would soon become useless.
From the foregoing right arise, as distinct branches, first, the right of a just defence, which belongs to every nation, or the right of making use of force against whoever attacks her and her rights. This is the foundation of defensive war.
Secondly, the right to obtain justice by force, if we cannot obtain it otherwise, or to pursue our right by force of arms. This is the foundation of offensive war.
An intentional act of injustice is undoubtedly an injury. We have, then, a right to punish if, as we have shown above, in speaking of injuries in general (§ 52). The right of refusing to suffer injustice is a branch of the right to security.
Let us apply to the unjust what we have said above (§ 53) of a mischievous nation. If there were a people who made open profession of trampling justice under foot, who despised and violated the rights of others whenever they found an opportunity, the interest of human society would authorize all the other nations to form a confederacy in order to humble and chastise the delinquents. We do not here forget the maxim established in our Preliminaries, that it does not belong to nations to usurp the power of being judges of each other. In particular cases, where there is room for the smallest doubt, it ought to be supposed that each of the parties may have some right: and the injustice of the party that has committed the injury may proceed from error, and not from a general contempt of justice. But if, by her constant maxims, and by the whole tenor of her conduct, a nation evidently proves herself to be actuated by that mischievous disposition, if she regards no right as sacred, the safety of the human race requires that she should be repressed. To form and support an unjust pretension, is only doing an injury to the party whose interests are affected by that pretension; but, to despise justice in general, is doing an injury to all nations.
WE have seen in the preceding chapters what are the common duties of nations towards each other, how they ought mutually to respect each other, and to abstain from all injury and all offence, and how justice and equity ought to reign between them in their whole conduct. But hitherto we have only considered the actions of the body of the nation, of the state, of the sovereign. Private persons who are members of one nation, may offend and ill-treat the citizens of another, and may injure a foreign sovereign: it remains for us to examine what share a state may have in the actions other citizens, and what are the rights and obligations of sovereigns in this respect.
Whoever offends the state, injures its rights, disturbs its tranquillity, or does it a prejudice in any manner whatsoever, declares himself its enemy, and exposes himself to be justly punished for it. Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is, safety.
But, on the other hand, the nation or the sovereign ought not to suffer the citizens to do an injury to the subjects of another state, much less to offend that state itself: and this, not only because no sovereign ought to permit those who are under his command to violate the precepts of the law of nature, which forbids all injuries, but also because nations ought mutually to respect each other, to abstain from all offence, from all injury, from all wrong, in a word, from every thing that may be of prejudice to others. If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation than if he injured it himself. In short, the safety of the state, and that of human society, requires this attention from every sovereign. If you let loose the reins to your subjects against foreign nations, these will behave in the same manner to you; and, instead of that friendly intercourse which nature has established between all men, we shall see nothing but one vast and dreadful scene of plunder between nation and nation.
However, as it is impossible for the best regulated state, or for the most vigilant and absolute sovereign, to model at his pleasure all the actions of his subjects, and to confine them on every occasion to the most exact obedience, it would be unjust to impute to the nation or the sovereign every fault committed by the citizens. We ought not, then, to say, in general, that we have received an injury from a nation because we have received it from one of its members.
But, if a nation or its chief approves and ratifies the act of the individual, it then becomes a public concern; and the injured party is to consider the nation as the real author of the injury, of which the citizen was perhaps only the instrument.
If the offended state has in her power the individual who has done the injury, she may without scruple bring him to justice and punish him. If he has escaped and returned to his own country, she ought to apply to his sovereign to have justice done in the case.
And, since the latter ought not to suffer his subjects to molest the subjects of other states, or to do them an injury, much less to give open, audacious offence to foreign powers, he ought to compel the transgressor to make reparation for the damage or injury, if possible, or to inflict on him an exemplary punishment; or, finally, according the nature and circumstances of the case, to deliver him up to the offended state, to be there brought to justice. This is pretty generally observed with respect to great crimes, which are equally contrary to the laws and safety of all nations. Assassins, incendiaries, and robbers, are seized everywhere, at the desire of the sovereign in whose territories the crime was committed, and are delivered up to his justice. The matter is carried still farther in states that are more closely connected by friendship and good neighbourhood. Even in cases of ordinary transgressions, which are only subjects of civil prosecution, either with a view to the recovery of damages, or the infliction of a slight civil punishment, the subjects of two neighbouring states are reciprocally obliged to appear before the magistrate of the place where they are accused of having failed in their duty. Upon a requisition of that magistrate, called Letter Rogatory, they are summoned in due form by their own magistrates, and obliged to appear. An admirable institution, by means of which many neighbouring states live together in peace, and seem to form only one republic! This is in force throughout all Switzerland. As soon as the Letters Rogatory are issued in form, the superior of the accused is bound to enforce them. It belongs not to him to examine whether the accusation be true or false: he is to presume on the justice of his neighbour, and not suffer any doubts on his own part to impair an institution so well calculated to preserve harmony and good understanding between the states. However, if by constant experience he should find that his subjects are oppressed by the neighbouring magistrates who summon them before their tribunals, it would undoubtedly be right in him to reflect on the protection due to his people, and to refuse the rogatories till satisfaction were given for the abuses committed, and proper steps taken to prevent a repetition of them. But, in such case, it would be his duty to allege his reasons, and set them forth in the clearest point of view.
The sovereign who refuses to cause reparation to be made for the damage done by his subject, or to punish the offender, or, finally, to deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it. But, if he delivers up either the property of the offender, as an indemnification, in cases that will admit of pecuniary compensation or his person, in order that he may suffer the punishment due to his crime, the offended party has no further demand on him. King Demetrius, having delivered to the Romans those who had killed their ambassador, the senate sent them back, resolving to reserve to themselves the liberty of punishing that crime, by avenging it on the king himself, or on his dominions. If this was really the case and if the king had no share in the murder of the Roman ambassador, the conduct of the senate was highly unjust, and only worthy of men who sought but a pretext to cover their ambitious enterprises.
Finally, there is another case where the nation in general is guilty of the crimes of its members. That is, when, by its manners, and by the maxims of its government, it accustoms and authorize its citizens indiscriminately to plunder and maltreat foreigners, to make inroads into the neighbouring countries, &c. Thus, the nation of the Usbecks is guilty of all the robberies committed by the individuals of which it is composed. The princes whose subjects are robbed and massacred, and whose lands are infested by those robbers, may justly level their vengeance against the nation at large.(106) Nay, more; all nations have a right to enter into a league against such a people, to repress them, and to treat them as the common enemies of the human race. The Christian nations would be no less justifiable in forming a confederacy against the states of Barbary, in order to destroy those haunts of pirates, with whom the love of plunder, or the fear of just punishment, is the only rule of peace and war. But these piratical adventurers are wise enough to respect those who are most able to chastise them; and the nations that are able to keep the avenues of a rich branch of commerce open for themselves, are not sorry to see them shut against others.
WE have explained, in Chap. XVIII. Book I., how a nation takes possession of a country, and at the same time gains possession of the domain and the government thereof. That country, with every thing included in it, becomes the property of the nation in general. Let us now see what are the effects of this property, with respect to other nations. The full domain is necessarily a peculiar and exclusive right; for, if I have a full right to dispose of a thing as I please, it thence follows that others have no right to it at all, since, if they had any, I could not freely dispose of it. The private domain of the citizens may be limited and restrained in several ways by the laws of the state, and it always is so by the eminent domain of the sovereign; but the general domain of the nation is full and absolute, since there exists no authority upon earth by which it can be limited: it therefore excludes all light on the part of foreigners. And, as the rights of a nation ought to be respected by all others (§ 64), none can form any pretensions to the country which belongs to that nation, nor ought to dispose of it without her consent, any more than of the things contained in the country.
The domain of the nation extends to every thing she possesses by a just title: it comprehends her ancient and original possessions, and all her acquisitions made by means which are just in themselves, or admitted as such among nations, concessions, purchases, conquests made in the regular war, &c. And by her possessions we ought not only to understand her territories, but all the rights she enjoys.
Even the property of the individuals is, in the aggregate, to be considered as the property of the nation, with respect to other states. It, in some sort, really belongs to her, from the right she has over the property of her citizens, because it constitutes a part of the sum total of her riches, and augments her power. She is interested in that property by her obligation to protect all her members. In short, it cannot be otherwise, since nations act and treat together as bodies in their quality of political societies, and are considered as so many moral persons. All those who form a society, a nation being considered by foreign nations as constituting only one whole, one single person, all their wealth together can only be considered as the wealth of that same person. And this is to true, that each political society may, if it pleases, establish within itself a community of goods, as Campanella did in his republic of the sun. Others will not inquire what it does in this respect: its domestic regulations make no change in its rights with respect to foreigners nor in the manner in which they ought to consider the aggregate of its property, in what way soever it is possessed.
By an immediate consequence of this principle, if one nation has a right to any part of the property of another, she has an indiscriminate right to the property of the citizens of the latter nation until the debt be discharged. This maxim is of great use, as shall hereafter be shown.
The general domain of the nation over the lands she inhabits is naturally connected with the empire; for, in establishing herself in a vacant country, the nation certainly does not intend to possess it in subjection to any other power: and, can we suppose an independent nation not vested with the absolute command in her domestic concerns? thus, we have already observed (Book I, § 205), that, in taking possession of a country, the nation is presumed to take possession of its government at the same time. We shall here proceed further, and show the natural connection of these two rights in an independent nation. How could she govern herself at her own pleasure in the country she inhabits, if she cannot truly and absolutely dispose of it? And how could she have the full and absolute domain of a place where she has not the command? Another's sovereignty, and the rights it comprehends, must deprive her of the free disposal of that place. Add to this the eminent domain which constitutes a part of the sovereignty (Book 1, § 244), and you will the better perceive the intimate connection existing between the domain and the sovereignty of the nation. And, accordingly, what is called the high domain, which is nothing but the domain of the body of the nation, or of the sovereign who represents it, is everywhere considered as inseparable from the sovereignty. The useful domain, or the domain confined to the rights that may belong to an individual in the state, may be separated from the sovereignty: and nothing prevents the possibility of its belonging to a nation in places that are not under her jurisdiction. Thus, many sovereigns have fiefs, and other possessions, in the territories of another prince: in these cases they possess them in the manner of private individuals.
The sovereignty united to the domain establishes the jurisdiction of the nation in her territories, or the country that belongs to her. It is her province, or that of her sovereign, to exercise justice in all the places under her jurisdiction, to take cognisance of the crimes committed, and the differences that arise in the country.
Other nations ought to respect this right. And, as the administration of justice necessarily requires that every definitive sentence, regularly pronounced, be esteemed just, and executed as such, when once a cause in which foreigners are interested has been decided in form, the sovereign of the defendants cannot hear their complaints. To undertake to examine the justice of a definitive sentence is an attack on the jurisdiction of him who has passed it. The prince, therefore, ought not to interfere in the causes of his subjects in foreign countries, and grant them his protection, excepting in cases where justice is refused, or palpable and evident injustice done, or rules and forms openly violated, or, finally, an odious distinction made, to the prejudice of his subjects, or of foreigners in general. The British court established this maxim with great strength of evidence, on occasion of the Prussian vessels seized and declared lawful prizes during the last war.1 What is here said has no relation to the merits of that particular cause, since they must depend on facts.
In consequence of these rights of jurisdiction, the decisions made by the judge of the place within the extent of his power ought to be respected, and to take effect even in foreign countries. For instance, it belongs to the domestic judge to nominate tutors and guardians for minors and idiots. The law of nations, which has an eye to the common advantage and the good harmony of nations, requires, therefore, that such nomination of a tutor or guardian be valid, and acknowledged in all countries where the pupil may have any concerns. Use was made of this maxim in the year 1672, even with respect to a sovereign. The abbι D'Orlιans, sovereign prince of Neufchatel, in Switzerland, being incapable of managing his own affairs, the king of France appointed, as his guardian, his mother, the duchess-dowager of Longueville. The duchess of Nemours, sister to that prince, laid claim to the guardianship for the principality of Neufchatel: but the title of the duchess of Longueville was acknowledged by the three estates of the country. Her counsel rested her cause on the circumstances of her having been nominated guardian by the domestic judge.2 This was a very wrong application of a just principle: for, the prince's domestic residence could be no where but in his state: and it was only by the decree of the three estates, who alone had a right to choose a guardian for their sovereign, that the authority of the duchess of Longueville became firm and lawful at Neufchatel.
In the same manner the validity of a testament, as to its form, can only be decided by the domestic judge, whoso sentence delivered in form ought to be everywhere acknowledged. But, without affecting the validity of the testament itself, the bequests contained in it may be disputed before the judge of the place where the effects are situated, because those effects can only be disposed of conformably to the laws of the country. Thus, the abbι D'Orlιans above mentioned having appointed the prince of Conti his universal legatee, the three estates of Neufchatel, without waiting till the parliament of Paris should pronounce their decision on the question of two contradictory wills made by the abbι D'Orlιans, gave the investiture of the principality to the duchess of Nemours, declaring that the sovereignty was unalienable. Besides, it might have been said on this occasion also, that the domestic residence of the prince could be nowhere but in the state.
As every thing included in the country belongs to the nation, and, as none but the nation, or the person on whom she has devolved her right, is authorized to dispose of those things (§ 79), if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her; she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property. It is, however, necessary to recollect here what we have observed above (Book I. § 81). No nation can lawfully appropriate to herself a too disproportionate extent of country, and reduce other nations to want subsistence, and a place of abode. A German chief, in the time of Nero, said to the Romans, "As heaven belongs to the gods, so the earth is given to the human race; and desert countries are common to all," giving those proud conquerors to understand that they had no right to reserve and appropriate to themselves a country which they left desert. The Romans had laid waste a chain of country along the Rhine, to cover their provinces from the incursions of the barbarians. The German's remonstrance would have had a good foundation, had the Romans pretended to keep without reason a vast country which was of no use to them: but those lands which they would not suffer to be inhabited, serving as a rampart against foreign nations, were of considerable use to the empire.
When there is not this singular circumstance, it is equally agreeable to the dictates of humanity, and to the particular advantage of the state, to give those desert tracts to foreigners who are willing to clear the land and to render it valuable. The beneficence of the state thus turns to her own advantage; she acquires new subjects, and augments her riches and power. This is the practice in America; and, by this wise method, the English have carried their settlements in the new world to a degree of power which has considerably increased that of the nation. Thus, also, the king of Prussia endeavours to re-people his states laid waste by the calamities of former wars.
The nation that possesses a country is at liberty to leave in the primitive state of communion certain things that have as yet no owner, or to appropriate to herself the right of possessing those things, as well as every other advantage which that country is capable of affording. And, as such a right is of use, it is, in case of doubt, presumed that the nation has reserved it to herself. It belongs to her, then, to the exclusion of foreigners, unless her laws expressly declare otherwise; as those of the Romans, which left wild beasts, fish, &c., in the primitive state of communion. No foreigner, therefore, has a natural right to hunt or fish in the territories of a state, to appropriate to himself a treasure found there, &c.
There exists no reason why a nation, or a sovereign, if authorized by the laws, may not grant various privileges in their territories to another nation, or to foreigners in general, since every one may dispose of his own property as he thinks fit. Thus, several sovereigns in the Indies have granted to the trading nations of Europe the privilege of having factories, ports, and even fortresses and garrisons in certain places within their dominions. We may in the same manner grant the right of fishing in a river, or on the coast, that of hunting in the forests, &c., and, when once these rights have been validly ceded, they constitute a part of the possessions of him who has acquired them, and ought to be respected in the same manner as his former possession.
Whoever agrees that robbery is a crime, and that we are not allowed to take forcible possession of our neighbour's property, will acknowledge, without any other proof, that no nation has a right to expel another people from the country they inhabit, in order to settle in it herself. Notwithstanding the extreme inequality of climates and soils, every people ought to be contented with that which has fallen to their share. Will the conductors of nations despise a rule that constitutes all their safety in civil society? Let this sacred rule be entirely forgotten, and the peasant will quit his thatched cottage to invade the palaces of the great, or the delightful possessions of the rich. The ancient Helvetians, discontented with their native soil, burned all their habitations, and commenced their march, in order to establish themselves, sword in hand, in the fertile plains of southern Gaul. But they received a terrible lesson from a conqueror of superior abilities to themselves, and who paid still less regard to the laws of justice. Cζsar defeated them, and drove them back into their own country. Their posterity, however, more wise than they, confine their views to the preservation of the lands and the independence they have received from nature: they live contented, and the labour of free hands counterbalances the sterility of the soil.
There are conquerors, who, aspiring after nothing more than the extension of the boundaries of their dominions, without expelling the inhabitants from a country, content themselves with subduing them; a violence less barbarous, but not less unjust: while they spare the property of individuals, they seize all the rights of the nation, and of the sovereign.
Since the least encroachment on the territory of another is an act or injustice, in order to avoid the commission of any such act, and to prevent every subject of discord, every occasion of quarrel, the limits of territories ought to be marked out with clearness and precision. If those who drew up the treaty of Utrecht had bestowed on so important a subject all the attention it deserved, we should not see France and England in arms, in order to decide by a bloody war what are to be the boundaries of their possessions in America. But the makers of treaties often designedly leave in them some obscurity, some uncertainty, in order to reserve for their nation a pretext for a rupture: an unworthy artifice in a transaction wherein good faith alone ought to preside! We have also seen commissioners endeavouring to overreach or corrupt those of a neighbouring state, in order to gain for their master an unjust acquisition of a few leagues of territory. How can princes or ministers stoop to dirty tricks that would dishonour a private man?
We should not only refrain from usurping the territory of others; we should also respect, and abstain from every act contrary to the rights of the sovereign: for, a foreign nation can claim no right in it (§ 79). We cannot, then, without doing an injury to a state, enter its territories with force and arms in pursuit of a criminal, and take him from thence. This would at once be a violation of the safety of the state, and a trespass on the rights of empire or supreme authority vested in the sovereign. This is what is called a violation of territory; and among nations there is nothing more generally acknowledged as an injury that ought to be vigorously repelled by every state that would not suffer itself to be oppressed. We shall make use of this principle in speaking of war, which gives occasion for many questions on the rights of territory.
The sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases, or to certain persons or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience: those who are ignorant of it, ought to be informed of it when they approach to enter the country. Formerly the Chinese, fearing lest the intercourse of strangers should corrupt the manners of the nation, and impair the maxims of a wise but singular government, forbade all people entering the empire: a prohibition that was not at all inconsistent with justice, provided they did not refuse human assistance to those whom tempest or necessity obliged to approach their frontiers. It was salutary to the nation, without violating the rights of any individual, or even the duties of humanity, which permits us, in case of competition, to prefer ourselves to others.
If at the same time two or more nations discover and take possession of an island or any other desert land without an owner, they ought to agree between themselves, and make an equitable partition; but, if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled.
An independent individual, whether he has been driven from his country, or has legally quitted it of his own accord, may settle in a country which he finds without an owner, and there possess an independent domain. Whoever would afterwards make himself master of the entire country, could not do it with justice without respecting the rights and independence of this person. But, if he himself finds a sufficient number of men who are willing to live under his laws, he may form a new state within the country he has discovered, and possess there both the domain and the empire. But, if this individual should arrogate to himself alone an exclusive right to a country, there to reign monarch without subjects, his vain pretensions would be justly held in contempt: a rash and ridiculous possession can produce no real right.
There are also other means by which a private person may found a new state. Thus, in the eleventh century, some Norman noblemen founded a new empire in Sicily, after having wrested that island by conquest from the common enemies of the Christian name. The custom of the nation permitted the citizens to quit their country in order to seek their fortune elsewhere.
When several independent families are settled in a country, they posess the free domain, but without sovereignty, since they do not form a political society. Nobody can seize the empire of that country; since this would be reducing those families to subjection against their will; and no man has a right to command men who are born free, unless they voluntarily submit to him.
If those families have fixed settlements, the place possessed by each is the peculiar property of that family: the rest of the country of which they make no use, being left in the primitive state of communion, belongs to the first occupant. Whoever chooses to settle there, may lawfully take possession of it.
Families wandering in a country, as the nations of shepherds, and ranging through it as their wants require, possess it in common: it belongs to them to the exclusion of all other nations; and we cannot, without injustice, deprive them of the tracts of country of which they make use. But, let us here recollect what we have said more than once (Book I. §§ 81 and 209, Book II. § 69). The savages of North America had no right to appropriate all that vast continent to themselves; and since they were unable to inhabit the whole of those regions, other nations might, without injustice, settle in some parts of them, provided they left the natives a sufficiency of land. If the pastoral Arabs would carefully cultivate the soil, a less space might be sufficient for them. Nevertheless, no other nation has a right to narrow their boundaries, unless she be under an absolute want of land. For, in short, they possess their country; they make use of it after their manner; they reap from it an advantage suitable to their manner of life, respecting which they have no laws to receive from any one. In a case of pressing necessity, I think people might, without injustice, settle in a part of that country, on leading the Arabs the means of rendering it, by the cultivation of the earth, sufficient for their own wants, and those of the new inhabitants.
It may happen that a nation is contented with possessing only certain places, or appropriating to itself certain rights, in a country that has not an owner, without being solicitous to take possession of the whole country. In this case, another nation may take possession of what the first has neglected; but this cannot be done without allowing all the rights acquired by the first to subsist in their full and absolute independence. In such cases, it is proper that regulations should be made by treaty; and this precaution is seldom neglected among civilized nations.
WE have already treated (Book I. § 213) of the inhabitants, or persons who reside in a country where they are not citizens. We shall here treat only of those foreigners who pass through or sojourn in a country, either on business, or merely as travellers. The relation that subsists between them and the society in which they now live the objects of their journey, and of their temporary residence the duties of humanity the rights, the interest, and the safety of the state which harbours them the rights of that to which they belong all these principles, combined and applied according to cases and circumstances, serve to determine the conduct that ought to be observed towards them, and to point out our right and our duty with respect to them. But the intention of this chapter is not so much to show what humanity and justice require towards foreigners, as to establish the rules of the law of nations on this subject rules tending to secure the rights of all parties, and to prevent the repose of nations being disturbed by the quarrels of individuals.
Since the lord of the territory may, whenever he thinks proper, forbid its being entered (§ 94), he has, no doubt, a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain. Can it be necessary to add, that the owner of the territory ought, in this instance, to respect the duties of humanity? The case is the same with all rights whatever: the proprietor may use them at his discretion; and, in so doing, he does not injure any person; but, if he would be free from guilt, and keep his conscience pure, he will never use them but in such manner as is most conformable to his duty. We speak here, in general, of the rights which belong to the lord of the country, reserving for the following chapter the examination of the cases in which he cannot refuse an entrance into his territory; and we shall see, in Chap. X., how his duty towards all mankind obliges him, on other occasions to allow a free passage through, and a residence in his state.
If the sovereign annexes any particular condition to the permission to enter his territories, he ought to have measures taken to make foreigners acquainted with it, when they present themselves on the frontier.
There are states, such as China and Japan, into which all foreigners are forbid to penetrate without an express permission; but, in Europe, the access is everywhere free to every person who is not an enemy of the state, except, in some countries, to vagabonds and outcasts.
But, even in those countries which every foreigner may freely enter, the sovereign is supposed to allow him access only upon this tacit condition, that he be subject to the laws, I mean the general laws made to maintain good order, and which have no relation to the title of citizen or of subject of the state. The public safety, the rights of the nation and of the prince, necessarily require this condition; and the foreigner tacitly submits to it, as soon as he enters the country, as he cannot presume that he has access upon any other footing. The sovereignly is the right to command in the whole country; and the laws are not simply confined to regulating the conduct of the citizens towards each other, but also determine what is to be observed by all orders of people throughout the whole extent of the state.
In virtue of this submission, foreigners who commit faults are to be punished according to the laws of the country. The object of punishment is to cause the laws to be respected, and to maintain order and safety.
For the same reason, disputes that may arise between foreigners, or between a foreigner and a citizen, are to be determined by the judge of the place, and according to the laws of the place.(111) And, as the dispute properly arises from the refusal of the defendant, who maintains that he is not bound to perform what is required of him, it follows, from the same principle, that every defendant ought to be prosecuted before his own judge, who alone has a right to condemn him, and compel him to the performance. The Swiss have wisely made this rule one of the articles of their alliance, in order to prevent the quarrels that might arise from abuses that were formerly too frequent in relation to this subject. The defendant's judge is the judge of the place where that defendant has his settled abode, or the judge of the place where that defendant has his settled abode, or the judge of the place where the defendant is, when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such an estate. In this last case, as property of that kind is to be held according to the laws of the country where it is situated, and as the right of granting possession is vested in the ruler of the country, disputes relating to such property can only be decided in the state on which it depends.
We have already shown (§ 84) how the jurisdiction of a nation ought to be respected by other sovereigns, and in what cases alone they may interfere in the causes of their subjects in foreign countries.
The sovereign ought not to grant an entrance into his state for the purpose of drawing foreigners into a snare; as soon as he admits them, he engages to protect them as his own subjects, and to afford them perfect security, as far as depends on him. Accordingly, we see that every sovereign who has given an asylum to a foreigner, considers himself no less offended by an injury done to the latter, than he would be by an act of violence committed on his own subject. Hospitality was in great honour among the ancients, and even among barbarous nations, such as the Germans. Those savage nations who treated strangers ill, that Scythian tribe who sacrificed them to Diana, were universally held in abhorrence; and Grotius justly says that their extreme ferocity excluded them from the great society of mankind. All other nations had a right to unite their forces in order to chastise them.
From a sense of gratitude for the protection granted to him, and the other advantages he enjoys, the foreigner ought not to content himself with barely respecting the laws of the country; he ought to assist it upon occasion, and contribute to its defence, as far as is consistent with his duty as citizen of another state. We shall see elsewhere what he can and ought to do, when the country is engaged in a war. But there is nothing to hinder him from defending it against pirates or robbers, against the ravages of an inundation, or the devastations of fire. Can he pretend to live under the protection of a state, to participate in a variety of advantages that it affords, and yet make no exertion for its defence, but remain an unconcerned spectator of the dangers to which the citizens are exposed?
He cannot, indeed, be subject to those burdens that have only a relation to the quality of citizens; but he ought to bear his share of all the others. Being exempted from serving in the militia, and from paying those taxes destined for the support of the rights of the nation, he will pay the duties imposed upon provisions, merchandise, &c., and, in a word, every thing that has only a relation to his residence in the country, or to the affairs which brought him thither.
The citizen or the subject of a state who absents himself for a time without any intention to abandon the society of which he is a member, does not lose his privilege by his absence: he preserves his rights, and remains bound by the same obligations. Being received in a foreign country, in virtue of the natural society, the communication, and commerce which nations are obliged to cultivate with each other (Prelim. §§ 11, 12; Book II. § 21), he ought to be considered there as a member of his own nation, and treated as such.
The state, which ought to respect the rights of other nations, and in general those of all mankind, cannot arrogate to herself any power over the person of a foreigner, who, though he has entered her territory, has not become her subject. The foreigner cannot pretend to enjoy the liberty of living in the country without respecting the laws: if he violates them, he is punishable as a disturber of the public peace, and guilty of a crime against the society in which he lives: but he is not obliged to submit, like the subjects, to all the commands of the sovereign: and, if such things are required of him as he is unwilling to perform, he may quit the country. He is free at all times to leave it; nor have we a right to detain him, except for a time, and for very particular reasons, as, for instance, an apprehension, in war time, lest such foreigner, acquainted with the state of the country and of fortified places, should communicate his knowledge to the enemy. From the voyages of the Dutch to the East Indies, we learn that the kings of Corea forcibly detain foreigners who are shipwrecked on their coast; and Bodinus assures us, that a custom so contrary to the law of nations was practised in his time in Ζthiopa, and even in Muscovy. This is at once a violation of the rights of individuals, and of those of the state to which they belong. Things have been greatly changed in Russia; in a single reign that of Peter the Great has placed that vast empire in the rank of civilized nations.
The property of an individual does not cease to belong to him on account of his being in a foreign country; it still constitutes a part of the aggregate wealth of his nation (§ 81). Any power, therefore, which the lord of the territory might claim over the property of a foreigner would be equally derogatory to the rights of the individual owner and to those of the nation of which he is a member.
Since the foreigner still continues to be a citizen of his own country, and a member of his own nation (§ 107), the property he leaves at his death in a foreign country ought naturally to devolve to those who are his heirs according to the laws of the state of which he is a member. But, notwithstanding this general rule, his immovable effects are to be disposed of according to the laws of the country where they are situated. (See § 103.)
As the right of making a will, or of disposing of his fortune in case of death, is a right resulting from property, it cannot, without injustice, be taken from a foreigner. The foreigner, therefore, by natural right, has the liberty of making a will. But, it is asked, by what laws he is obliged to regulate himself, either in the form of his testament, or in the disposal of his property. 1. As to the form or solemnities appointed to settle the validity of a will it appears that the testator ought to observe those that are established in the country where he makes it, unless it be otherwise ordained by the laws of the state of which he is a member; in which case, he will be obliged to observe the forms which they prescribe, if he would validly dispose of the property he possesses in his own country. I speak here of a will which is to be opened in the place where the person dies; for, if a traveller makes his will, and sends it home under seal, it is the same thing as if it had been written at home; and, in this case, it is subject to the laws of his own country. 2. As to the bequests themselves, we have already observed that those which relate to immovables ought to be conformable to the laws of the country where those immovables are situated. The foreign testator cannot dispose of the goods, movable or immovable, which he possesses in his own country, otherwise than in a manner conformable to the laws of that country. But, as to movable goods, specie, and other effects which he possesses elsewhere, which he has with him, or which follow his person, we ought to distinguish between the local laws, whose effect cannot extend beyond the territory, and those laws which peculiarly affect the character of citizen. The foreigner, remaining a citizen of his own country, is still bound by those last-mentioned laws, wherever he happens to be, and is obliged to conform to them in the disposal of his personal property, and all his movables whatsoever. The laws of this kind, made in the country where he resides at the time, but of which he is not a citizen, are not obligatory with respect to him. Thus, a man who makes his will, and dies in a foreign country, cannot deprive his widow of the part of his movable effects assigned to that widow by the laws of his own country. A Genevan, obliged by the law of Geneva to leave a dividend of his personal property to his brothers or his cousins, if they be his next heirs, cannot deprive them of it by making his will in a foreign country, while he continues a citizen of Geneva; but, a foreigner dying at Geneva is not obliged, in this respect, to conform to the laws of the republic. The case is quite otherwise with respect to local laws: they regulate what may be done in the territory, and do not extend beyond it. The testator is no longer subject to them when he is out of the territory; and they do not affect that part of his property which is also out of it, the foreigner is obliged to observe those laws, in the country where he makes his will, with respect to the goods he possesses there. Thus, an inhabitant of Neufchatel, to whom entails are forbidden in his own country with respect to the property he possesses there, freely makes an entail of the estate he possesses out of the jurisdiction of the country, if he dies in a place where entails are allowed; and, a foreigner making a will at Neufchatel, cannot make an entail of even the movable property he possesses there, unless, indeed, we may suppose that his movable property is excepted by the spirit of the law.
What we have established in the three preceding sections is sufficient to show with how little justice the crown, in some states, lays claim to the effects left there by a foreigner at his death. This practice is founded on what is called escheatage, by which foreigners are excluded from all inheritances in this state, either of the property of a citizen or that of an alien, and, consequently, cannot be appointed heirs by will, nor receive any legacy. Grotius justly observes, that this law has descended to us from those ages when foreigners were almost considered as enemies.4 Even after the Romans were become a very polite and learned people, they could not accustom themselves to consider foreigners as men entitled to any right in common with them. "Those nations," says Pomponius, the civilian, "with whom we have neither friendship, nor hospitality, nor alliance, are not, therefore, our enemies; yet, if any thing belonging to us falls into their hands, it becomes their property; our free citizens become slaves to them; and they are on the same terms with respect to us."5 We cannot suppose that so wise a people retained such inhuman laws with any other view than that of a necessary retaliation, as they could not otherwise obtain satisfaction from barbarous nations, with whom they had no connection or treaties existing, Bodinus shows,6 that escheatage is derived from these worthy sources! It has been successively mitigated, or even abolished, in most civilized states. The emperor Frederic II. first abolished it by an edict, which permitted all foreigners dying within the limits of the empire to dispose of their substance by will, or, if they died intestate, to have their nearest relations for heirs.6 But Bodinus complains that this edict is but ill executed. Why does there still remain any vestige of so barbarous a law in Europe, which is now enlightened and so full of humanity? The law of nature cannot suffer it to be put in practice except by way of retaliation. This is the use made of it by the king of Poland in his hereditary states. Escheatage is established in Saxony; but the sovereign is so just and equitable, that he enforces it only against those nations which subject the Saxons to a similar law.
The right of traite foraine (called in Latin jus detractus) is more conformable to justice and the mutual obligation of nations. We give this name to the right by virtue of which the sovereign retains a moderate portion of the property either of citizens or aliens which is sent out of his territories to pass into the hands of foreigners. As the exportation of that property is a loss to the state, she may fairly receive an equitable compensation for it.
Every state has the liberty of granting or refusing to foreigners the power of possessing Lands or other immovable property within her territory.(117) If she grants them that privilege, all such property possessed by aliens remains subject to the jurisdiction and laws of the country, and to the same taxes as other property of the same kind. The authority of the sovereign extends over the whole territory; and it would be absurd to except some parts of it, on account of their being possessed by foreigners. If the sovereign does not permit aliens to possess immovable property, nobody has a right to complain of such prohibition; for, he may have very good reasons for acting in this manner: and, as foreigners cannot claim any right in his territories (§ 79), they ought not to take it amiss that he makes use of his power and of his rights in the manner which he thinks most for the advantage of the state. And, as the sovereign may refuse to foreigners the privilege of possessing immovable property, he is doubtless at liberty to forbear granting it except with certain conditions annexed.
There exists no natural impediment to prevent foreigners from contracting marriages in the state. But, if these marriages are found prejudicial or dangerous to a nation, she has a right, and is even in duty bound to prohibit them, or to subject to certain conditions the permission to contract them: and, as it belongs to the nation or to her sovereign to determine what appears most conducive to the welfare of the state, other nations ought to acquiesce in the regulations which any sovereign state has made on this head. Citizens are almost everywhere forbid to marry foreign wives of a different religion; and in many parts of Switzerland a citizen cannot marry a foreign woman, unless he prove that she brings him in marriage a certain sum fixed by the law.
If an obligation, as we have before observed, gives a right to those things without which it cannot be fulfilled, every absolute, necessary, and indispensable obligation produces in this manner rights equally absolute, necessary, and indefeasible. Nature imposes no obligations on men without giving them the means of fulfilling them. They have an absolute right to the necessary use of those means: nothing can deprive them of that right, as nothing can dispense with their fulfilling their natural obligations.
In the primitive state of communion, men had, without distinction, a right to the use of every thing, as far as was necessary to the discharge of their natural obligations. And, as nothing could deprive them of this right, the introduction of domain and property could not take place without leaving to every man the necessary use of things, that is to say, the use absolutely required for the fulfillment of natural obligations. We cannot, then, suppose the introduction to have taken place without this tacit restriction, that every man should still preserve some right to the things subjected to property, in those cases where, without this right, he would remain absolutely deprived of the necessary use of things of this nature. This right is a necessary remnant of the primitive state of communion.
Notwithstanding the domain of nations, therefore, each nation still retains some right to what is possessed by others, in those cases where she would find herself deprived of the necessary use of certain things if she were to be absolutely debarred from using them by the consideration of their being other people's property. We ought carefully to weigh every circumstance in order to make a just application of this principle.
I say the same of the right of necessity. We thus call the right which necessity alone gives to the performance of certain actions that are otherwise unlawful, when, without these actions, it is impossible to fulfil an indispensable obligation. But it is carefully to be noted, that, in such a case, the obligation must really be an indispensable one, and the act in question the only means of fulfilling that obligation. If either of these conditions be wanting, the right of necessity does not exist on the occasion. We may see the subjects discussed in treatises on the law of nature, and particularly in that of Mr. Wolf. I confine myself here to a brief summary of those principles whose aid is necessary to us in developing the rights of nations.
The earth was designed to feed its inhabitants; and he who is in want of every thing is not obliged to starve because all property is vested in others. When, therefore, a nation is in absolute want of provisions, she may compel her neighbours who have more than they want for themselves to supply her with a share of them, at a fair price; she may even take it by force, it they will not sell it. Extreme necessity revives the primitive communion, the abolition of which ought to deprive no person of the necessaries of life (§ 117). The same right belongs to individuals, when a foreign nation refuses them a just assistance. Captain Bontekoe, a Dutchman, having lost his vessel at sea, escaped in his boat, with a part of his crew, and landed on an Indian coast, where the barbarous inhabitants refusing him provisions, the Dutch obtained them sword in hand.
In the same manner, if a nation has a pressing want of the ships, wagons, horses, or even the personal labour of foreigners, she may make use of them, either by free consent or by force, provided that the proprietors be not under the same necessity. But, as she has no more right to these things than necessity gives her, she ought to pay for the use she makes of them, if she has the means of paying. The practice of Europe is conformable to this maxim. In cases of necessity, a nation sometimes presses foreign vessels which happen to be in her ports; but she pays a compensation for the services performed by them.
Let us say a few words on a more singular case, since authors have treated of it a case in which at present, people are never reduced to employ force. A nation cannot preserve and perpetuate itself, except by propagation. A nation of men has, therefore, a right to procure women, who are absolutely necessary to its preservation; and if its neighbours, who have a redundancy of females, refuse to give some of them in marriage to those men, the latter may justly have recourse to force. We have a famous example of this in the rape of the Sabine women. But, though a nation is allowed to procure for itself, even by force of arms, the liberty of obtaining women in marriage, no woman in particular can be constrained in her choice, nor become, by right, the wife of a man who carries her off by force a circumstance which has not been attended to by those who have decided, without restriction, that the Romans did not commit an act of injustice on that occasion. It is true that the Sabine women submitted to their fate with a good grace; and, when their nation took up arms to avenge them, it sufficiently appeared, from the ardour with which those women rushed between the combatants, that they willingly acknowledged the Romans for their lawful husbands.
We may further add, that, if the Romans, as many pretend, were originally only a band of robbers united under Romulus, they did not form a true nation, or a legitimate state; the neighbouring nations had a just right to refuse them women; and the law of nature, which approves no civil society but such as is legitimate, did not require them to furnish that society of vagabonds and robbers with the means of perpetuating itself; much less did it authorize the latter to procure those means by force. In the same manner, no nation was obliged to furnish the Amazons with males. That nation of women, if it ever existed, put itself, by its own fault, out of a condition to support itself without foreign assistance.
The right of passage is also a remnant of the primitive state of communion, in which the entire earth was common to all mankind, and the passage was everywhere free to each individual according to his necessities. Nobody can be entirely deprived of this right (§ 117); but the exercise of it is limited by the introduction of domain and property: since they have been introduced, we cannot exert that right without paying due regard to the private rights of others. The effect of property is, to give the proprietor's advantage a preference over that of all others. When, therefore, the owner of a territory thinks proper to refuse you admission into it, you must, in order to enter it in spite of him, have some reason more cogent than all his reasons to the contrary. Such is the right of necessity: this authorizes an act on your part, which on other occasions would be unlawful, viz. an infringement of the right of domain. When a real necessity obliges you to enter into the territory of others, for instance, if you cannot otherwise escape from imminent danger, or if you have no other passage for procuring the means of subsistence, or those of satisfying some other indispensable obligation, you may force a passage when it is unjustly refused, but, if an equal necessity obliges the proprietor to refuse you entrance, he refuses it justly; and his right is paramount to yours. Thus, a vessel driven by stress of weather has a right to enter, even by force, into a foreign port. But, if that vessel is affected with the plague, the owner of the port may fire upon it and beat it off, without any violation either of justice, or even of charity, which, in such a case, ought doubtless to begin at home.
The right of passage through a country would in most cases be useless, without that of procuring necessaries at a fair price: and we have already shown (§ 120) that in case of necessity it is lawful to take provisions even by force.
In speaking of exile and banishment, we have observed (Book I. §§ 229-231) that every man has a right to dwell somewhere upon earth. What we have shown with respect to individuals may be applied to whole nations. If a people are driven from the place of their abode, they have a right to seek a retreat: the nation to which they make application ought then to grant them a place of habitation, at least for a time, if she has not very important reasons for a refusal. But, if the country inhabited by this nation is scarcely sufficient for herself, she is under no obligation to allow a band of foreigners to settle in it for ever: she may even dismiss them at once, if it be not convenient to her to grant them a permanent settlement. As they have the resource of seeking an establishment elsewhere, they cannot claim any authority from the right of necessity, to stay in spite of the owners of the country. But it is necessary, in short, that these fugitives should find a retreat; and, if everybody rejects them, they will be justifiable in making a settlement in the first country where they find land enough for themselves, without depriving the inhabitants of what is sufficient for them. But, even in this case, their necessity gives them only the right of habitation; and they are bound to submit to all the conditions, not absolutely intolerable, which may be imposed on them by the master of the country, such as paying him tribute, becoming his subjects, or at least living under his protection, and, in certain respects, depending on him. This right, as well as the two preceding, is a remnant of the primitive state of communion.
We have been occasionally obliged to anticipate the subject of the present chapter, in order to follow the order of the different subjects that presented themselves. Thus, in speaking of the open sea, we have remarked (Book I. § 281) that those things, the use of which is inexhaustible, cannot fall under the domain or property of any one; because, in that free and independent state in which nature has produced them, they may be equally useful to all men. And, as to those things even which in other respects are subject to domain, if their use is inexhaustible, they remain common with respect to that use, thus a river may be subject both to domain and empire; but, in quality of running water, it remains common, that is to say, the owner of the river cannot hinder any one from drinking and drawing water out of it. Thus, the sea, even in those parts that are held in possession, being sufficient for the navigation of all mankind, he who has the domain cannot refuse a passage through it to any vessel from which he has nothing to fear. But it may happen, by accident, that this inexhaustible use of the thing may be justly refused by the owner, when people cannot take advantage of it without incommoding him or doing him a prejudice. For instance, if you cannot come to my river for water without passing over my land and damaging the crop it bears, I may for that reason debar you from the inexhaustible use of the running water: in which case, it is but through accident you are deprived of it. This leads us to speak of another right which has a great connection with that just mentioned, and is even derived from it; that is, the right of innocent use.
We call innocent use, or, innocent advantage, that which may be derived from a thing without causing either loss or inconvenience to the proprietor; and the right of innocent use is the right we have to that advantage or use which may be made of things belonging to another, without causing him either loss or inconvenience. I have said that this right is derived from the right to things of which the use is inexhaustible. In fact, a thing that may be useful to any one without loss or inconvenience to the owner, is, in this respect, inexhaustible in the use; and that is the reason why the law of nature still allows all men a right to it notwithstanding the introduction of domain and property. Nature, who designs her gifts for the common advantage of mankind, does not allow us to prevent the application of those gifts to a useful purpose which they may be made to serve without any prejudice to the proprietor, and without any diminution of the utility and advantages he is capable of deriving from his rights.
This right of innocent use is not a perfect right, like that of necessity: for, it belongs to the owner to judge whether the use we wish to make of a thing that belongs to him will not be attended with damage or inconvenience. If others should presume to decide on the occasion, and, in case of refusal, to compel the proprietor, he would be no longer master of his own property. It may frequently happen that the person who wishes to derive advantage from a thing shall deem the use of it perfectly innocent, though it is not so in fact; and, if, in such case, he attempts to force the proprietor, he exposes himself to the risk of committing an act of injustice; nay, he actually commits one, since he infringes the owner's right to judge of what is proper to be done on the occasion. In all cases, therefore, which admit of any doubt, we have only an imperfect right to the innocent use of things that belong to others.
But, when the innocence of the use is evident, and absolutely indubitable, the refusal is an injury. For, in addition to a manifest violation of the rights of the party by whom that innocent use is required, such refusal is moreover a testimony of an injurious disposition of hatred or contempt for him. To refuse a merchant-ship the liberty of passing through a strait, to fishermen that of drying their nets on the sea shore, or of watering at a river, is an evident infringement of the right they have to the innocent use of things in those cases, But in every case, if we are not pressed by necessity, we may ask the owner for his reasons for the refusal, and if he gives none, we may consider him as an unjust man; or an enemy, with whom we are to act according to the rules of prudence. In general, we should regulate our sentiments and conduct towards him, according to the greater or lesser weight of the reasons on which he acts.
All nations do therefore still retain a general right to the innocent use of things that are under the domain of any one individual nation. But, in the particular application of this right, it is the nation in whom the property is vested that is to determine whether the use which others wish to make of what belongs to her be really innocent: and, if she gives them a denial, she ought to allege her reasons; as she must not deprive others of their right from mere caprice. All this is founded in justice: for, it must be remembered that the innocent use of things is not comprehended in the domain, or the exclusive property. The domain gives only the right of judging, in particular cases, whether the use be really innocent. Now, he who judges ought to have his reasons; and he should mention them, if he would have us think that he forms any judgment, and not that he acts from caprice or ill-nature. All this, I say, is founded injustice. In the next chapter, we shall see the line of conduct which a nation is, by her duty to other nations, bound to observe in the exercise of her rights.
SINCE the law of nations treats as well of the duties of states as of their rights, it is not sufficient that we have explained, on the subject of innocent use, what all nations have a right to require from the proprietor: we are now to consider what influence his duties to others ought to have on their proprietor's conduct. As it belongs to him to judge whether the use be really innocent, and not productive of any detriment or inconvenience to himself, he ought not to give a refusal unless it be grounded upon real and substantial reasons: this is a maxim of equity; he ought not even to stop at trifles, a slight loss, or any little inconvenience: humanity forbids this; and the mutual love which men owe to each other, requires greater sacrifices. It would certainly be too great a deviation from that universal benevolence which ought to unite the human race, to refuse a considerable advantage to an individual, or to a whole nation, whenever the grant of it might happen to be productive of the most trifling loss or the slightest inconvenience to ourselves. In this respect, therefore, a nation ought on all occasions to regulate her conduct by reasons proportioned to the advantages and necessities of others, and to reckon as nothing a small expense or a supportable inconvenience, when great good will thence result to another nation. But she is under no obligation to incur heavy expenses or embarrassments, for the sake of furnishing others with the use of any thing, when such use is neither necessary nor of any great utility to them. The sacrifice we here require is not contrary to the interests of the nation: it is natural to think that the others will behave in the same manner in return; and how great the advantages that will result to all states from such a line of conduct!
The introduction of property cannot be supposed to have deprived nations of the general right of traversing the earth for the purposes of mutual intercourse, of carrying on commerce with each other, and for other just reasons. It is only on particular occasions, when the owner of a country thinks it would be prejudicial or dangerous to allow a passage through it, that he ought to refuse permission to pass. He is therefore bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself. And he cannot lawfully annex burdensome conditions to a permission which he is obliged to grant, and which he cannot refuse if he wishes to discharge his duty, and not abuse his right of property. The count of Lupfen having improperly stopped some merchandise in Alsace, and complaints being made on the subject to the emperor Sigismund, who was then at the council of Constance, that prince assembled the electors, princes, and deputies of towns, to examine the affair. The opinion of the burgrave of Nuremberg deserves to be mentioned: "God," said he, "has created heaven for himself and his saints, and has given the earth to mankind, intending it for the advantage of the poor as well as of the rich. The roads are for their use, and God has not subjected them to any taxes." He condemned the count of Lupfen to restore the merchandise, and to pay costs and damages, because he could not justify his seizure by any peculiar right. The emperor approved this opinion, and passed sentence accordingly.
But, if any apprehension of danger arise from the grant of liberty to pass through a country, the state has a right to require sureties: the party who wishes to pass cannot refuse them, a passage being only so far due to him as it is attended with no inconvenience.
In like manner, a passage ought also to be granted for merchandise: and, as this is in general productive of no inconvenience, to refuse it without just reason is injuring a nation, and endeavouring to deprive her of the means of carrying on a trade with other states. If this passage occasions any inconvenience, any expense for the preservation of canals and highways, we may exact a compensation for it by toll duties (Book I. § 303).
In explaining the effects of domain we have said above (§§ 64 and 100) that the owner of the territory may forbid the entrance into it, or permit it on such conditions as he thinks proper. We were then treating of his external right, that right which foreigners are bound to respect. But now that we are considering the matter in another view, and as it relates to his duties and to his internal right, we may venture to assert that he cannot, without particular and important reasons, refuse permission, either to pass through or reside in the country, to foreigners who desire it for lawful purposes. For, their passage or their residence being in this case an innocent advantage, the law of nature does not give him a right to refuse it: and, though other nations and other men in general are obliged to submit to his judgment (§§ 128 and 130), he does not the less offend against his duty, if he refuses without sufficient reason: he then acts without any true right; he only abuses his external right. He cannot, therefore without some particular and cogent reason. refuse the liberty of residence to a foreigner who comes into the country with the hope of recovering his health, or for the sake of acquiring instruction in the schools and academies. A difference in religion is not a sufficient reason to exclude him, provided he do not engage in controversial disputes with a view to disseminate his tenets; for, that difference does not deprive him of the rights of humanity.
We have seen (§ 125) how the right of necessity may in certain cases authorize a people, who are driven from the place of their residence, to settle in the territory of another nation. Every state ought, doubtless, to grant to so unfortunate a people every aid and assistance which she can bestow without being wanting to herself: but to grant them an establishment in the territories of the nation, is a very delicate step, the consequences of which should be maturely considered by the conductor of the state. The emperors Probus and Valens experienced the evil effects of their conduct in having admitted into the territories of the empire numerous bands of Gepidζ, Vandals, Goths, and other barbarians. If the sovereign finds that such a step would be attended with too great an inconvenience or danger, he has a right to refuse an establishment to those fugitive people, or to adopt, on their admission, every precaution that prudence can dictate to him. One of the safest will be, not to permit those foreigners to reside together in the same part of the country, there to keep up the form of a separate nation. Men who have not been able to defend their own country, cannot pretend to any right to establish themselves in the territory of another, in order to maintain themselves there as a nation in a body. The sovereign who harbours them may therefore disperse them, and distribute them into the towns and provinces that are in want of inhabitants. In this manner his charity will turn to his own advantage, to the increase of his power, and to the greater benefit of the state. What a difference is observable in Brandenburg since the settlement of the French refugees! The great elector, Frederic William, offered an asylum to those unfortunate people; he provided for their expenses on the road, and with truly regal munificence established them in his states; by which conduct that beneficent and generous prince merited the title of a wise and able politician.
When, by the laws or the custom of a state, certain actions are generally permitted to foreigners, as, for instance, travelling freely through the country without any express permission, marrying there, buying or selling merchandise, hunting, fishing, &c., we cannot exclude any one nation from the benefit of the general permission without doing her an injury, unless there be some particular and lawful reason for refusing to that nation what is granted indiscriminately to others. The question here, it is to be observed, only relates to those actions which are productive of innocent advantage: and, as the nation allows them to foreigners without distinction, she, by the very nature of that general permission, affords sufficient proof that she deems them innocent with respect to herself; which amounts to a declaration that foreigners have a right to them (§ 127): the innocence of such acts is manifested by the confession of the state; and the refusal of an advantage that is manifestly innocent, is an injury (§ 129). Besides, to attempt without any reason to lay one nation under a prohibition where an indiscriminate permission is enjoyed by all others, is an injurious distinction, since it can only proceed from hatred or contempt. If there by any particular and well-founded reason for the exception, the advantage resulting from the act in question can no longer be deemed an innocent one with respect to the excepted nation; consequently no injury is done to them. The state may also by way of punishment, except from the general permission a people who have given her just cause of complaint.
As to rights of this nature granted to one or more nations for particular reasons, they are conferred on them as favours, either by treaty, or through gratitude for some particular service: those to whom the same rights are refused cannot consider themselves as offended. The nation does not esteem the advantage accruing from those acts to be an innocent one, since she does not indiscriminately allow them to all nations: and she may confer on whom she pleases any rights over her own property, without affording just grounds to anybody else, either for uttering a complaint, or forming pretensions to the same favour.
Humanity is not confined to the bare grant of a permission to foreign nations to make an innocent use of what belongs to us: it moreover requires that we should even facilitate to them the means of deriving advantage from it, so far as we can do this without injury to ourselves. Thus, it becomes a well-regulated state to promote the general establishment of inns where travellers may procure lodging and food at a fair price, to watch over their safety, and to see that they be treated with equity and humanity. A polite nation should give the kindest reception to foreigners, receive them with politeness, and on every occasion show a disposition to oblige them. by these means every citizen, while he discharges his duty to mankind in general, will at the same time render essential services to his country. Glory is the certain reward of virtue; and the good-will which is gained by an amiable character, is often productive of consequences highly important to the state. No nation is entitled to greater praise in this respect than the French: foreigners nowhere meet a reception more agreeable, or better calculated to prevent their regretting the immense sums they annually spend at Paris.
Usucaption is the acquisition of domain founded on a long possession, uninterrupted and undisputed that is to say, an acquisition solely proved by this possession. Wolf defines it, an acquisition of domain founded on a presumed desertion. His definition explains the manner in which a long and peaceable possession may serve to establish the acquisition of domain. Modestinus, Digest, lib, 3, de Usurp. et Usucap., says, in conformity to the principles of the Roman law, that usucaption is the acquisition of domain by possession continued during a certain period prescribed by law. These three definitions are by no means incompatible with each other; and it is easy to reconcile them by setting aside what relates to the civil law in the last of the three. In the first of them, we have endeavoured clearly to express the idea commonly affixed to the term usucaption.
Prescription is the exclusion of all pretensions to a right an exclusion founded on the length of time during which that right has been neglected: or, according to Wolf's definition, it is the loss of an inherent right by virtue of a presumed consent. This definition, too, is just; that is, it explains how a right may be forfeited by long neglect; and it agrees with the nominal definition we give of the term, prescription, in which we confine ourselves to the meaning usually annexed to the word. As to the rest, the term usucaption is but little used in French; and the word prescription implies, in that language, every thing expressed by the Latin terms Usucapio and prζscriptio: wherefore we shall make use of the word prescription wherever we have not particular reasons for employing the other.
Now, to decide the question we have proposed, we must first see whether usucaption and prescription are derived from the law of nature. Many illustrious authors have asserted and proved them to be so. Though in this treatise we frequently suppose the reader acquainted with the law of nature, it is proper in this place to establish the decision, since the affair is disputed.
Nature has not herself established a private property over any of her gifts, and particularly over land; she only approves its establishment, for the advantage of the human race. On this ground, then, it would be absurd to suppose, that, after the introduction of domain and property, the law of nature can secure to a proprietor any right capable of introducing disorder into human society. Such would be the right of entirely neglecting a thing that belongs to him, of leaving it during a long space of time under all the appearances of a thing utterly abandoned or not belonging to him, and of coming at length to wrest it from a bona fide possessor, who has perhaps dearly purchased his title to it, who has received it as an inheritance from his progenitors, or as a portion with his wife, and who might have made other acquisitions, had he been able to discover that the one in question was neither solid nor lawful. Far from giving such a right, the law of nature lays an injunction on the proprietor to take care of his property, and imposes on him an obligation to make known his rights, that others may not be led into error: it is on these conditions alone that she approves of the property vested in him, and secures him in the possession. If he has neglected it for such a length of time that he cannot now be admitted to reclaim it without endangering the rights of others, the law of nature will no longer allow him to revive and assert his claims. We must not therefore conceive the right of private property to be a right of so extensive and imprescriptible a nature, that the proprietor may, at the risk of every inconvenience thence resulting to human society, absolutely neglect it for a length of time, and afterwards reclaim it, according to his caprice. With what other view than that of the peace, the safety, and the advantage of human society, does the law of nature ordain that all men should respect the right of private property in him who makes use of it? For the same reason, therefore, the same law requires that every proprietor who for a long time and without any just reason neglects his right, should be presumed to have entirely renounced and abandoned it. This is what forms the absolute presumption (juris et de jure) of its abandonment, a presumption, upon which another person is legally entitled to appropriate to himself the thing so abandoned. The absolute presumption does not here signify a conjecture of the secret intentions of the proprietor, but a maxim which the law of nature ordains should be considered as true and invariable, and this with a view of maintaining peace and order among men. Such presumption therefore confirms a title as firm and just as that of property itself, and established and supported by the same reasons. The bona fide possessor, resting his title on a presumption of this kind, has, then, a right which is approved by the law of nature; and that law, which requires that the rights of each individual should be stable and certain, does not allow any man to disturb him in his possession,
The right of usucaption properly signifies that the bona fide possessor is not obliged to suffer his right of property to be disputed after a long-continued and peaceable possession on his part: he proves that right by the very circumstance of possession, and sets up the plea of prescription in bar to the claims of the pretended proprietor. Nothing can be more equitable than this rule. If the claimant were permitted to prove his property, he might happen to bring proofs very convincing indeed in appearance, but, in fact, deriving all their force only from the loss or destruction of some document or deed which would have proved how he had either lost or transferred his right. Would it be reasonable that he should be allowed to call in question the rights of the possessor, when by his own fault he has suffered matters to proceed to such a state that there would be danger of mistaking the truth? If it be necessary that one of the two should be exposed to lose his property, it is just it should be the party who is in fault.
It is true, that, if the bona fide possessor should discover, with perfect certainty, that the claimant is the real proprietor, and has never abandoned his right, he is bound in conscience, and by the internal principles of justice, to make restitution of whatever accession of wealth he has derived from the property of the claimant. But this estimation is not easily made; and it depends on circumstances.
As prescription cannot be grounded on any but an absolute or lawful presumption, it has no foundation, if the proprietor has not really neglected his right. This condition implies three particulars: 1, that the proprietor cannot allege an invincible ignorance, either on his own part, or on that of the persons from whom he derives his right; 2, that he cannot justify his silence by lawful and substantial reasons; 3, that he has neglected his right, or kept silence during a considerable number of years: for, the negligence of a few years, being incapable of producing confusion and rendering doubtful the respective rights of the parties, is not sufficient to found or authorize a presumption of relinquishment. It is impossible to determine by the law of nature the number of years required to found a prescription: this depends on the nature of the property disputed, and the circumstances of the case.
What we have remarked in the preceding section, relates to ordinary prescription. There is another called immemorial, because it is founded on immemorial possession, that is, on a possession, the origin of which is unknown, or so deeply involved in obscurity, as to allow no possibility of proving whether the possessor has really derived his right from the original proprietor, or received the possession from another. This immemorial prescription secures the possessor's right beyond the power of recovery: for, it affords a legal presumption that he is the proprietor, as long as the adverse party fails to adduce substantial reasons in support of his claim: and, indeed, whence could these reasons be derived, since the origin of the possession is lost in the obscurity of time? It ought even to secure the possessor against every pretension contrary to his right. What would be the case were it permitted to call in question a right acknowledged time immemorial, when the means of proving it were destroyed by time? Immemorial possession, therefore, is an irrefragable title, and immemorial prescription admits of no exception: both are founded on a presumption which the law of nature directs us to receive as an incontestable truth.
In cases of ordinary prescription, the same argument cannot be used against a claimant who alleges just reasons for his silence, as, the impossibility of speaking, or a well-founded fear, &c., because there is then no longer any room for a presumption that he has abandoned his right. It is not his fault if people have thought themselves authorized to form such a presumption; nor ought he to suffer in consequence: he cannot therefore be debarred the liberty of clearly proving his property. This method of defence in bar of prescription has been often employed against princes whose formidable power had long silenced the feeble victims of their usurpations.
It is also very evident that we cannot plead prescription in opposition to a proprietor who, being for the present unable to prosecute his right, confines himself to a notification, by any token whatever, sufficient to show that it is not his intention to abandon it. Protests answer this purpose. With sovereigns it is usual to retain the title and arms of a sovereignty or a province, as an evidence that they do not relinquish their claims to it.
Every proprietor who expressly commits, or omits, certain acts, which he cannot commit or omit without renouncing his right, sufficiently indicates by such commission or omission that it is not his intention to preserve it, unless, by an express reservation, he declare the contrary. We are undoubtedly authorized to consider as true what he sufficiently manifests on occasions where he ought to declare the truth: consequently, we may lawfully presume that he abandons his right; and, if he would afterwards resume it, we can plead prescription in bar to his claim.
After having shown that usucaption and prescription are founded in the law of nature, it is easy to prove that they are equally a part of the law of nations, and ought to take place between different states. For, the law of nations is but the law of nature applied to nations in a manner suitable to the parties concerned (Prelim. § 6). And so far is the nature of the parties from affording them an exemption in the case, that usucaption and prescription are much more necessary between sovereign states than between individuals. Their quarrels are of much greater consequence; their disputes are usually terminated only by bloody wars; and consequently the peace and happiness of mankind much more powerfully require that possession on the part of sovereigns should not be easily disturbed, and that, if it has for a considerable length of time continued uncontested, it should be deemed just and indisputable, were we allowed to recur to antiquity on every occasion, there are few sovereigns who could enjoy their rights in security, and there would be no peace to be hoped for on earth.
It must however be confessed, that, between nations, the rights of usucaption and prescription are often more difficult in their application, so far as they are founded on a presumption drawn from long silence. Nobody is ignorant how dangerous it commonly is for a weak state even to hint a claim to the possessions of a powerful monarch. In such a case, therefore, it is not easy to deduce from long silence a legal presumption of abandonment. To this we may add, that, as the ruler of the society has usually no power to alienate what belongs to the state, his silence, even though sufficient to afford a presumption of abandonment on his own part, cannot impair the national right or that of his successors. The question then will be, whether the nation has neglected to supply the omission caused by the silence of her ruler, or has participated in it by a tacit approbation.
But there are other principles that establish the use and force of prescription between nations. The tranquillity of the people, the safety of states, the happiness of the human race, do not allow that the possessions, empire, and other rights of nations should remain uncertain, subject to dispute, and ever ready to occasion bloody wars. Between nations, therefore, it becomes necessary to admit prescription founded on length of time as a valid and incontestable title. If any nation has kept silence through fear, and as it were through necessity, the loss of her right is a misfortune which she ought patiently to bear, since she could not avoid it: and why should she not submit to this as well as to have her towns and provinces taken from her by an unjust conqueror, and to be forced to cede them to him by treaty? It is, however, only in cases of long-continued, undisputed, and uninterrupted possession, that prescription is established on these grounds, because it is necessary that affairs should some time or other be brought to a conclusion, and settled on a firm and solid foundation. But the case is different with a possession of only a few years' continuance, during which the party whose rights are invaded may from prudential reasons find it expedient to keep silence, without at the same time affording room to accuse him of suffering things to become uncertain, and of renewing quarrels without end.
As to immemorial prescription, what we have said respecting it (§ 143) is sufficient to convince every one that it ought necessarily to take place between nations.
Usucaption and prescription being so necessary to the tranquillity and happiness of human society, it is justly presumed that all nations have consented to admit the lawful and reasonable use of them, with a view to the general advantage, and even to the private interest of each individual nation.
Prescription of many years' standing, as well as usucaption, is, then, established by the voluntary law of nations (Prelim. § 21).
Nay, more, as by virtue of that law nations are, in all doubtful cases, supposed to stand on a footing of equal right in treating with each other (ibid.), prescription, when founded on long undisputed possession, ought to have its full effect between nations, without admitting any allegation of the possession being unjust, unless the evidence to prove it be very clear and convincing indeed. For, without such evidence, every nation is to be considered as a bona fide possessor. Such is the right that a sovereign state ought to allow to other states; but to herself she should only allow the use of the internal and necessary right (Prelim. § 28). It is the bona fide possessor alone whose prescription will stand the test of conscience.
Since prescription is subject to so many difficulties, it would be very proper that adjoining nations should by treaty adopt some rule on this subject, particularly with respect to the number of years required to found a lawful prescription, since this latter point cannot in general be determined by the law of nature alone. If, in default of treaties, custom has determined any thing in this matter, the nations between whom this custom is in force, ought to conform to it (Prelim. § 26).
THE subject of treaties is undoubtedly one of the most important that the mutual relations and affairs of nations can present us with. Having but too much reason to be convinced of the little dependence that is to be placed on the natural obligations of bodies politic, and on the reciprocal duties imposed upon them by humanity, the most prudent nations endeavour to procure by treaties those succours and advantages which the law of nature would insure to them, if it were not rendered ineffectual by the pernicious counsels of a false policy.
A treaty, in Latin fdus, is a compact made with a view to the public welfare by the superior power, either for perpetuity, or for a considerable time.
The compacts which have temporary matters for their object are called agreements, conventions, and pactions. They are accomplished by one single act, and not by repeated acts. These compacts are perfected in their execution once for all: treaties receive a successive execution whose duration equals that of the treaty.
Notwithstanding our assertion above, that public treaties are made only by the superior powers, treaties of that nature may nevertheless be entered into by princes or communities, who have a right to contract them, either by the concession of the sovereign, or by the fundamental laws of the state, by particular reservations, or by custom. Thus, the princes and free cities of Germany, though dependent
on the emperor and the empire, have the right of forming alliances with foreign powers. The constitutions of the empire give them, in this as in many other respects, the rights of sovereignty. Some cities of Switzerland, though subject to a prince, have made alliances with the cantons: the permission or toleration of the sovereign has given birth to such treaties, and long custom has established the right to contract them.
As a state that has put herself under the protection of another, has not on that account forfeited her character of sovereignty (Book I. § 192), she may make treaties and contract alliances, unless she has, in the treaty of protection, expressly renounced that right. But she continues for ever after bound by this treaty of protection, so that she cannot enter into any engagements contrary to it, that is to say, engagements which violate the express conditions of the protection, or that are in their own nature repugnant to every treaty of protection. Thus, the protected state cannot promise assistance to the enemies of her protector, nor grant them a passage.
Sovereigns treat with each other through the medium of agents or proxies who are invested with sufficient powers for the purpose, and are commonly called plenipotentiaries. To their office we may apply all the rules of natural law which respect things done by commission. The rights of the proxy are determined by the instructions that are given him: he must not deviate from them; but every promise which he makes in the terms of his commission, and within the extent of his powers, is binding on his constituent.
At present, in order to avoid all danger and difficulty, princes reserve to themselves the power of ratifying what has been concluded upon in their name by their ministers. The plenipotentiary commission is but a procuration cum libera. If this commission were to have its full effect, they could not be too circumspect in giving it. But, as princes cannot otherwise than by force of arms be compelled to fulfil their engagements, it is customary to place no dependence on their treaties, till they have agreed to and ratified them. Thus, as every agreement made by the minister remains invalid till sanctioned by the prince's ratification, there is less danger in vesting him with unlimited powers. But, before a prince can honourably refuse to ratify a compact made in virtue of such plenipotentiary commission, he should be able to allege strong and substantial reasons, and, in particular, to prove that his minister has deviated from his instructions.
A treaty is valid if there be no defect in the manner in which it has been concluded: and for this purpose nothing more can be required than a sufficient power in the contracting parties, and their mutual consent sufficiently declared.
An injury cannot, then, render a treaty invalid, He who enters into engagements ought carefully to weigh every thing before he concludes them; he may do what he pleases with his own property, forego his rights, and renounce his advantages, as he thinks proper; the acceptor is not obliged to inquire into his motives, and to estimate their due weight. If we might recede from a treaty because we found ourselves injured by it, there would be no stability in the contracts of nations. Civil laws may set bounds to injury, and determine what degree of it shall be capable of invalidating a contract. But sovereigns are subject to no superior judge. How shall they be able to prove the injury to each other's satisfaction? Who shall determine the degree of it sufficient to invalidate a treaty? The peace and happiness of nations manifestly require that their treaties should not depend on so vague and dangerous a plea of invalidity.
A sovereign nevertheless is in conscience bound to pay a regard to equity, and to observe it as much as possible in all his treaties. And, if it happens that a treaty which he has concluded with upright intentions, and without perceiving any unfairness in it, should eventually prove disadvantageous to an ally, nothing can be more honourable, more praiseworthy, more conformable to the reciprocal duties of nations, than to relax the terms of such treaty as far as he can do it consistently with his duty to himself, and without exposing himself to danger, or incurring a considerable loss.
Though a simple injury, or some disadvantage in a treaty, be not sufficient to invalidate it, the case is not the same with those inconveniences that would lead to the ruin of the nation. Since, in the formation of every treaty, the contracting parties must be vested with sufficient powers for the purpose, a treaty pernicious to the state is null, and not at all obligatory, as no conductor of a nation has the power to enter into engagements to do such things as are capable of destroying the state, for whose safety the government is intrusted to him. The nation itself, being necessarily obliged to perform every thing required for its preservation and safety (Book I. § 16, &c.), cannot enter into engagements contrary to its indispensable obligations. In the year 1506, the states-general of the kingdom of France, assembled at Tours, engaged Louis XII. to break the treaty he had concluded with the emperor Maximilian and the archduke Philip, his son, because that treaty was pernicious to the kingdom. They also decided that neither the treaty, nor the oath that had accompanied it, could be binding on the king, who had no right to alienate the property of the crown.1 We have treated of this latter source of invalidity in the twenty-first chapter of Book I.
For the same reason the want of sufficient powers a treaty concluded for an unjust or dishonest purpose is absolutely null and void, nobody having a right to engage to do things contrary to the law of nature. Thus, an offensive alliance, made for the purpose of plundering a nation from whom no injury has been received, may or rather ought to be broken.
It is asked, whether it be allowable to contract an alliance with a nation that does not profess the true religion, and whether treaties made with the enemies of the faith are valid. Grotius has treated this subject at large: and the discussion might have been necessary at a time when party-rage still obscured those principles which it had long caused to be forgotten; but we may venture to believe that it would be superfluous in the present age. The law of nature alone regulates the treaties of nations: the difference of religion is a thing absolutely foreign to them. Different people treat with each other in quality of men, and not under the character of Christians, or of Mohammedans. Their common safety requires that they should be capable of treating with each other, and of treating with security. Any religion that should in this case clash with the law of nature, would, on the very face of it, wear the stamp of reprobation, and could not pretend to derive its origin from the great Author of nature, who is ever steady, ever consistent with himself. But, if the maxims of a religion tend to establish it by violence, and to oppress all those who will not embrace it, the law of nature forbids us to favour that religion, or to contract any unnecessary alliances with its inhuman followers, and the common safety of mankind invites them rather to enter into an alliance against such a people, to repress such outrageous fanatics, who disturb the public repose and threaten all nations.
It is a settled point in natural law, that he who has made a promise to any one has conferred upon him a real right to require the thing promised, and, consequently, that the breach of a perfect promise is a violation of another person's right, and as evidently an act of injustice as it would be to rob a man of his property. The tranquillity, the happiness, the security of the human race, wholly depend on justice, on the obligation of paying a regard to the rights of others. The respect which others pay to our rights of domain and property constitutes the security of our actual possessions; the faith of promises is our security for things that cannot be delivered or executed upon the spot. There would no longer be any security, no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises. This obligation is, then, as necessary as it is natural and indubitable, between nations that live together in a state of nature, and acknowledge no superior upon earth, to maintain order and peace in their society. Nations, therefore, and their conductors, ought inviolably to observe their promises and their treaties. This great truth, though too often neglected in practice, is generally acknowledged by all nations:3 the reproach of perfidy is esteemed by sovereigns a most atrocious affront yet he who does not observe a treaty is certainly perfidious, since he violates his faith. On the contrary, nothing adds so great a glory to a prince, and to the nation he governs, as the reputation of an inviolable fidelity in the performance of promises. By such honourable conduct, as much or even more than by her valour, the Swiss nation has rendered herself respectable throughout Europe, and is deservedly courted by the greatest monarchs who intrust their personal safety to a body-guard of her citizens. The parliament of England has more than once thanked the king for his fidelity and zeal in succouring the allies of his crown. This national magnanimity is the source of immortal glory; it presents a firmer basis on which nations may build their confidence; and thus it becomes an unfailing source of power and splendour.
As the engagements of a treaty impose on the one hand a perfect obligation, they produce on the other a perfect right. The breach of a treaty is therefore a violation of the perfect right of the party with whom we have contracted; and this is an act of injustice against him.
A sovereign already bound by a treaty cannot enter into others contrary to the first. The things respecting which he has entered into engagements are no longer at his disposal. If it happens that a posterior treaty be found, in any particular point, to clash with one of more ancient date, the new treaty is null and void with respect to that point, inasmuch as it tends to dispose of a thing that is no longer in the power of him who appears to dispose of it. (We are here to be understood as speaking of treaties made with different powers.) If the prior treaty is kept secret, it would be an act of consummate perfidy to conclude a contrary one, which may be rendered void whenever occasion serves. Nay, even to enter into engagements, which, from the eventual turn of affairs, may chance at a future day to militate against the secret treaty, and from that very circumstance to prove ineffectual and nugatory, is by no means justifiable, unless we have the ability to make ample compensation to our new ally: otherwise it would be practising a deception on him, to promise him a thing without informing him that cases may possibly occur which will not allow us to substantiate our promise. The ally thus deceived is undoubtedly at liberty to renounce the treaty: but, if he chooses rather to adhere to it, it will hold good with respect to all the articles that do not clash with the prior treaty.
There is nothing to prevent a sovereign from entering into engagements of the same nature with two or more nations, if he be able to fulfil those several engagements to his different allies at the same time. For instance, a commercial treaty with one nation does not deprive us of the liberty of afterwards contracting similar engagements with other states, unless we have, in the former treaty, bound ourselves by a promise not to grant the same advantages to any other nation. We may in the same manner promise to assist two different allies with troops, if we are able to furnish them, or if there is no probability that both will have occasion for them at the same time.
If nevertheless the contrary happens, the more ancient ally is entitled to a preference: for, the engagement was pure and absolute with respect to him; whereas we could not contract with the more recent ally, without a reservation of the rights of the former. Such reservation is founded in justice, and is tacitly understood, even if not expressly made.
The justice of the cause is another ground of preference between two allies. We ought even to refuse assistance to the one whose cause is unjust, whether he be at war with one of our allies, or with another state: to assist him on such occasion, would in the event be the same thing as if we had contracted an alliance for an unjust purpose; which we are not allowed to do (§ 161). No one can be validly engaged to support injustice.
Grotius divides treaties into two general classes, first, those which turn merely on things to which the parties were already bound by the law of nature secondly, those by which they enter into further engagements.4 By the former we acquire a perfect right to things to which we before had only an imperfect right, so that we may thenceforward demand as our due what before we could only request as an office of humanity. Such treaties became very necessary between the nations of antiquity, who, as we have already observed, did not think themselves bound to any duty towards people who were not in the number of their allies. They are useful even between the most polished nations, in order the better to secure the succours they may expect, to determine the measure and degree of those succours, and to show on what they have to depend, to regulate what cannot in general be determined by the law of nature, and thus to obviate all difficulties, by providing against the various interpretations of that law. Finally, as no nation possesses inexhaustible means of assistance, it is prudent to secure to ourselves a peculiar right to that assistance which cannot be granted to all the world.
To this first class belong all simple treaties of peace and friendship, when the engagements which we thereby contract make no addition to those duties that men owe to each other as brethren and as members of the human society: such are those treaties that permit commerce, passage, &c.
If the assistance and offices that are due by virtue of such a treaty should on any occasion prove incompatible with the duties a nation owes to herself, or with what the sovereign owes to his own nation, the case is tacitly and necessarily excepted in the treaty. For, neither the nation nor the sovereign could enter into an engagement to neglect the care of their own safety, or the safety of the state, in order to contribute to that of their ally. If the sovereign, in order to preserve his own nation, has occasion for the things he has promised in the treaty, if, for instance, he has engaged to furnish corn, and in a time of dearth he has scarcely sufficient for the subsistence of his subjects, he ought without hesitation to give a preference to his own nation; for, it is only so far as he has it in his power to give assistance to a foreign nation, that he naturally owes such assistance; and it was upon that footing alone that he could promise it in a treaty. Now. it is not in his power to deprive his own nation of the means of subsistence in order to assist another nation at their expense. Necessity here forms an exception, and he does not violate the treaty because he cannot fulfil it.
The treaties by which we simply agree not to do any evil to an ally, to abstain, with respect to him, from all harm, offence, and injury, are not necessary, and produce no new right, since every individual already possesses a perfect natural right to be exempt from harm, injury, and real offence. Such treaties, however, become very useful, and accidentally necessary, among those barbarous nations who think they have a right to act as they please towards foreigners. They are not wholly useless with nations less savage, who, without so far divesting themselves of humanity, entertain a much less powerful sense of a natural obligation, than of one which they have themselves contracted by solemn engagements: and would to god that his manner of thinking were entirety confined to barbarians! We see too frequent effects of it among those who boast of a perfection much superior to the law of nature. But the imputation of perfidy is prejudicial to the rules of nations, and thus becomes formidable even to those who are little solicitous to merit the appellation of virtuous men, and who feel no scruple in silencing the reproaches of conscience.
Treaties by which we contract engagements that were not imposed on us by the law of nature, are either equal or unequal.
Equal treaties are those in which the contracting parties promise the same things, or things that are equivalent, or, finally, things that are equitably proportioned, so that the condition of the parties is equal. Such is, for example, a defensive alliance, in which the parties reciprocally stipulate for the same succours. Such is an offensive alliance, in which it is agreed that each of the allies shall furnish the same number of vessels, the same number of troops, of cavalry and infantry, or an equivalent in vessels, in troops, in artillery, or in money. Such is also a league in which the quota of each of the allies is regulated in proportion to the interest he takes or may have in the design of the league. Thus, the emperor and the king of England, in order to induce the states-general of the United Provinces to accede to the treaty of Vienna of the 16th of March, 1731, consented that the republic should only promise to her allies the assistance of four thousand foot and a thousand horse, though they engaged, in case of an attack upon the republic, to furnish her, each, with eight thousand foot and four thousand horse. We are also to place in the class of equal treaties those which stipulate that the allies shall consider themselves as embarked in a common cause, and shall act with all their strength. Notwithstanding a real inequality in their strength, they are nevertheless willing in this instance to consider it as equal.
Equal treaties may be subdivided into as many species as there are of different transactions between sovereigns. Thus, they treat of the conditions of commerce, of their mutual defence, of associations in war, of reciprocally granting each other a passage, or refusing it to the enemies of their ally; they engage not to build fortresses in certain places, &c. But it would be needless to enter into these particulars: generals are sufficient, and are easily applied to particular cases.
Nations being no less obliged than individuals to pay a regard to equity, they ought, as much as possible, to preserve equality in their treaties. When, therefore, the parties are able reciprocally to afford each other equal advantages, the law of nature requires that their treaties should be equal, unless there exist some particular reason for deviating from that equality, such, for instance, as gratitude for a former benefit, the hope of gaining the inviolable attachment of a nation, some private motive, which renders one of the contracting parties particularly anxious to have the treaty concluded, &c. Nay, viewing the transaction in its proper point of light, the consideration of that particular reason restores to the treaty that equality which seems to be destroyed by the difference of the things promised.
I see those pretended great politicians smile, who employ all their subtlety in circumventing those with whom they treat, and in so managing the conditions of the treaty, that all the advantages shall accrue to their masters. Far from blushing at a conduct so contrary to equity, to rectitude and natural honesty, they glory in it, and think themselves entitled to the appellation of able negotiators. How long shall we continue to see men in public characters take a pride in practices that would disgrace a private individual? The private man, if he is void of conscience, laughs also at the rules of morality and justice; but he laughs in secret: it would be dangerous and prejudicial to him to make a public mockery of them. Men in power more openly sacrifice honour and honesty to present advantage: but, fortunately for mankind, it often happens that such seeming advantage proves fatal to them; and even between sovereigns, candour and rectitude be found to be the safest policy. All the subtleties, all the tergiversations of a famous minister, on the occasion of a treaty in which Spain was deeply interested, turned at length to his own confusion, and to the detriment of his master; while England, by her good faith and generosity to her allies, gained immense credit, and rose to the highest pitch of influence and respectability.
When people speak of equal treaties, they have commonly in their minds a double idea of equality, viz. equality in the engagements, and equality in the dignity of the contracting parties. It becomes therefore necessary to remove all ambiguity; and for that purpose, we may make a distinction between equal treaties and equal alliances. Equal treaties are those in which there is an equality in the promises made, as we have above explained (§ 172); and equal alliances, those in which equal treats with equal, making no difference in the dignity of the contracting parties, or, at least, admitting no too glaring superiority, but merely a pre-eminence of honour and rank. Thus kings treat with the emperor on a footing of equality, though they do not hesitate to allow him precedency; thus great republics treat with kings on the same footing, notwithstanding the pre-eminence which the former now-a-days yield to the latter. Thus all true sovereigns ought to treat with the most powerful monarch, since they are as really sovereigns, and as independent as himself. (See § 37 of this Book.)
Unequal treaties are those in which the allies do not reciprocally promise to each other the same things, or things equivalent; and an alliance is unequal when it makes a difference in the dignity of the contracting parties. It is true, that most commonly an unequal treaty will be at the same time an unequal alliance; as great potentates are seldom accustomed to give or to promise more than is given or promised to them, unless such concessions be fully compensated in the article of honour and glory; and, on the other hand, a weak state does not submit to burdensome conditions without being obliged also to acknowledge the superiority of her ally.
Those unequal treaties that are at the same time unequal alliances, are divided into two classes, the first consisting of those where the inequality prevails on the side of the more considerable power, the second comprehending treaties where the inequality is on the side of the inferior power.
Treaties of the former class, without attributing to the more powerful of the contracting parties any right over the weaker, simply allow him a superiority of honours and respect. We have treated of this in Book I. § 5. Frequently a great monarch, wishing to engage a weaker state in his interest, offers her advantageous conditions, promises her gratuitous succours, or greater than he stipulates for himself: but at the same time he claims a superiority of dignity, and requires respect from his ally. It is this last particular which renders the alliance unequal: and to this circumstance we must attentively advert; for, with alliances of this nature we are not to confound those in which the parties treat on a footing of equality, though the more powerful of the allies, for particular reasons, gives more than he receives, promises his assistance gratis, without requiring gratuitous assistance in his turn, or promises more considerable succours, or even the assistance of all his forces: here the alliance is equal, but the treaty is unequal, unless indeed we may be allowed to say, that as the party who makes the greater concessions has a greater interest in concluding the treaty, this consideration restores the equality. Thus, at a time when France found herself embarrassed in a momentous war with the house of Austria, and the cardinal de Richelieu wished to humble that formidable power, he, like an able minister, concluded a treaty with Gustavus Adolphus, in which all the advantage appeared to be on the side of Sweden. From a bare consideration of the stipulations of that treaty, it would have been pronounced an unequal one; but the advantages which France derived from it, amply compensated for that inequality. The alliance of France with the Swiss, if we regard the stipulations alone, is an unequal treaty; but the valour of the Swiss troops has long since counterbalanced that inequality; and the difference in the interests and wants of the parties serves still further to preserve the equilibrium. France, often involved in bloody wars, has received essential services from the Swiss: the Helvetic body, void of ambition, and untainted with the spirit of conquest, may live in peace with the whole world; they have nothing to fear, since they have feelingly convinced the ambitious, that the love of liberty gives the nation sufficient strength to defend her frontiers. This alliance may at certain times have appeared unequal: our forefathers5 paid little attention to ceremony: but, in reality, and especially since the absolute independence of the Swiss is acknowledged by the empire itself, the alliance is certainly equal, although the Helvetic body do not hesitate to yield to the king of France all that pre-eminence which the established usage of modern Europe attributes to crowned heads, and especially to great monarchs.
Treaties in which the inequality prevails on the side of the inferior power ; that is to say, those which impose on the weaker party more extensive obligations or greater burdens, or bind him down to oppressive or disagreeable conditions, these unequal treaties, I say, are always at the same time unequal alliances; for, the weaker party never submits to burdensome conditions, without being obliged also to acknowledge the superiority of his ally. These conditions are commonly imposed by the conqueror, or dictated by necessity, which obliges a weak state to seek the protection or assistance of another more powerful; and by this very step, the weaker state acknowledges her own inferiority. Besides, this forced inequality in a treaty of alliance is a disparagement to her, and lowers her dignity, at the same time that it exalts that of her more powerful ally. Sometimes, also, the weaker state not being in a condition to promise the same succours as the more powerful one, it becomes necessary that she should compensate for her inability in this point, by engagements which degrade her below her ally, and often even subject her, in various respects, to his will. Of this kind are all those treaties in which the weaker party alone engages not to make war without the consent of her more powerful ally, to have the same friends and the same enemies with him, to support and respect his dignity, to have no fortresses in certain places, not to trade or raise soldiers in certain free countries, to deliver up her vessels of war, and not to build others, as was the case of the Carthaginians when treating with their Roman conquerors, to keep up only a certain number of troops, &c.
These unequal alliances are subdivided into two kinds; they either impair the sovereignty, or they do not. We have slightly touched on this in Book I. Ch. I. and XVI.
The sovereignty subsists entire and unimpaired when none of its constituent rights are transferred to the superior ally, or rendered, as to the exertion of them, dependent on his will. But the sovereignty is impaired when any of its rights are ceded to an ally, or even if the use of them be merely rendered dependent on the will of that ally. For example, the treaty does not impair the sovereignty, if the weaker state only promises not to attack a certain nation without the consent other ally. By such an engagement she neither divests herself of her right, nor subjects the exertion of it to another's will; she only consents to a restriction in favour of her ally: and thus she incurs no greater diminution of liberty than is incurred by promises of every kind. Such reservations are every day stipulated in alliances that are perfectly equal. But, if either of the contracting parties engages not to make war against any one whatsoever without the consent or permission of an ally who on his side does not make the same promise, the former contracts an unequal alliance, with diminution of sovereignty; for he deprives himself of one of the most important branches of the sovereign power, or renders the exertion of it dependent on another's will. The Carthaginians having, in the treaty that terminated the second Punic war, promised not to make war on any state without the consent of the Roman people, were thenceforward, and for that reason, considered as dependent on the Romans.
When a nation is forced to submit to the will of a superior power, she may lawfully renounce her former treaties, if the party with whom she is obliged to enter into an alliance requires it of her. As she then loses a part other sovereignty, their ancient treaties fall to the ground together with the power that had concluded them. This is a necessity that cannot be imputed to her as a crime: and since she would have a right to place herself in a state of absolute subjection, and to renounce her own sovereign, if she found such measures necessary for her preservation, by a much stronger reason, she has a right, under the same necessity, to abandon her allies. But a generous people will exhaust every resource before they will submit to terms so severe and so humiliating.
In general, as every nation ought to be jealous of her glory, careful of maintaining her dignity, and preserving her independence, nothing short of the last extremity, or motives the most weighty and substantial, ought ever to induce a people to contract an unequal alliance. This observation is particularly meant to apply to treaties where the inequality prevails on the side of the weaker ally, and still more particularly to those unequal alliances that degrade the sovereignty. Men of courage and spirit will accept such treaties from no other hands but those of imperious necessity.
Notwithstanding every argument which selfish policy may suggest to the contrary, we must either pronounce sovereigns to be absolutely emancipated from all subjection to the law of nature, or agree that it is not lawful for them, without just reasons, to compel weaker states to sacrifice their dignity, much less their liberty, by unequal alliances. Nations owe to each other the same assistance, the same respect, the same friendship, as individuals living in a state of nature. Far from seeking to humble a weaker neighbour, and to despoil her of her most valuable advantages, they will respect and maintain her dignity and her liberty, if they are inspired by virtue more than by pride if they are actuated by principles of honour more than by the manner views of sordid interest nay, if they have but sufficient discernment to distinguish their real interests. Nothing more firmly secures the power of a great monarch than his attention and respect to all other sovereigns. The more cautious he is to avoid offending his weaker brethren, the greater esteem he testifies for them, the more will they revere him in turn; they feel an affection for a power whose superiority over them is displayed only by the conferring of favours: they cling to such a monarch as their prop and support, and he becomes the arbiter of nations. Had his demeanour been stamped with arrogance, he would have been the object of their jealousy and fear, and might perhaps have one day sunk under their united efforts.
But as the weaker party ought, in his necessity, to accept with gratitude the assistance of the more powerful, and not to refuse him such honours and respect as are flattering to the person who receives them, without degrading him by whom they are rendered; so, on the other hand, nothing is more conformable to the law of nature than a generous grant of assistance from the more powerful state, unaccompanied by any demand of a return, or, at least, of an equivalent. And in this instance also, there exists an inseparable connection between interest and duty. Sound policy holds out a caution to a powerful nation not to suffer the lesser states in her neighbourhood to be oppressed. If she abandon them to the ambition of a conqueror, he will soon become formidable to herself. Accordingly, sovereigns, who are in general sufficiently attentive to their own interests, seldom fail to reduce this maxim to practice. Hence those alliances, sometimes against the house of Austria, sometimes against its rival, according as the power of the one or the other preponderates. Hence that balance of power, the object of perpetual negotiations and wars.
When a weak and poor nation has occasion for assistance of another kind when she is afflicted by famine we have seen (§ 5), that those nations who have provisions ought to supply her at a fair price. It were noble and generous to furnish them at an under price, or to make her a present of them, if she be incapable of paying their value. To oblige her to purchase them by an unequal alliance, and especially at the expense of her liberty to treat her as Joseph formerly treated the Egyptians would be a cruelty almost as dreadful as suffering her to perish with famine.
But there are cases where the inequality of treaties and alliances, dictated by some particular reasons, is not contrary to equity, nor, consequently, to the law of nature. Such, in general, are all those cases in which the duties that a nation owes to herself, or those which she owes to other nations, prescribe to her a departure from the line of equality. If, for instance, a weak state attempts, without necessity, to erect a fortress, which she is incapable of defending, in a place where it might become very dangerous to her neighbour if ever it should fall into the hands of a powerful enemy, that neighbour may oppose the construction of the fortress; and, if he does not find it convenient to pay the lesser state a compensation for complying with his desire, he may force her compliance, by threatening to block up the roads and avenues of communication, to prohibit all intercourse between the two nations, to build fortresses, or to keep an army on the frontier, to consider that little state in a suspicious light, &c. He thus indeed imposes an unequal condition; but his conduct is authorized by the care of his own safety. In the same manner he may oppose the forming of a highway, that would open to an enemy an entrance into his state. War might furnish us with a multitude of other examples. But rights of this nature are frequently abused; and it requires no less moderation than prudence to avoid turning them into oppression.
Sometimes those duties to which other nations have a claim, recommend and authorize inequality in a contrary sense, without affording any ground of imputation against a sovereign, of having neglected the duty which he owes to himself or to his people. Thus, gratitude the desire of showing his deep sense of a favour received may induce a generous sovereign to enter into an alliance with joy, and to give in the treaty more than he receives.
It is also consistent with justice to impose the conditions of an unequal treaty, or even an unequal alliance, by way of penalty, in order to punish an unjust aggressor, and render him incapable of easily injuring us for the time to come. Such was the treaty to which the elder Scipio Africanus forced the Carthaginians to submit, after he had defeated Hannibal. The conqueror often dictates such terms: and his conduct in this instance is no violation of the laws of justice or equity, provided he do not transgress the bounds of moderation, after he has been crowned with success in a just and necessary war.
The different treaties of protection those by which a state renders itself tributary or feudatory to another form so many different kinds of unequal alliances. But we shall not repeat here what we have said respecting them in Book I. Chap. I. and XVI.
By another general division of treaties or alliances, they are distinguished into personal and real: the former are those that relate to the persons of the contracting parties, and are confined and in a manner attached to them. Real alliances relate only to the matters in negotiation between the contracting parties, and are wholly independent of their persons.
A personal alliance expires with him who contracted it.
A real alliance attaches to the body of the state, and subsists as long as the state, unless the period of its duration has been limited.
It is of considerable importance not to confound these two sorts of alliances. Accordingly, sovereigns are at present accustomed to express themselves in their treaties in such a manner as to leave no uncertainty in this respect: and this is doubtless the best and safest method. In default of this precaution, the very subject of the treaty, or the expressions in which it is couched, may furnish a clue to discover whether it be real or personal. On this head we shall lay down some general rules.
In the first place, we are not to conclude that a treaty is a personal one from the bare circumstance of its naming the contracting sovereigns: for, the name of the reigning sovereign is often inserted with the sole view of showing with whom the treaty has been concluded, without meaning thereby to intimate that it has been made with himself personally. This is an observation of the civilians Pedius and Ulpian, repeated by all writers who have treated of these subjects.
Every alliance made by a republic is in its own nature real, for it relates only to the body of the state. When a free people, a popular state, or an aristocratical republic, concludes a treaty, it is the state herself that contracts; and her engagements do not depend on the lives of those who were only the instruments in forming them: the members of the people, or of the governing body, change and succeed each other; but the state still continues the same.
Since, therefore, such a treaty directly relates to the body of the state, it subsists, though the form of the republic should happen to be changed even though it should be transformed into a monarchy. For, the state and the nation are still the same, notwithstanding every change that may take place in the form of the government; and the treaty concluded with the nation remains in force as long as the nation exists. But it is manifest that all treaties relating to the form of government are exceptions to this rule. Thus two popular states, that have treated expressly, or that evidently appear to have treated, with the view of maintaining themselves in concert in their state of liberty and popular government, cease to be allies from the very moment that one of them has submitted to be governed by a single person.
Every public treaty, concluded by a king or by any other monarch, is a treaty of the state; it is obligatory on the whole state, on the entire nation which the king represents, and whose power and rights he exercises. It seems then at first view, that every public treaty ought to be presumed real, as concerning the state itself. There can be no doubt with respect to the obligation to observe the treaty; the only question that arises, is respecting its duration. Now, there is often room to doubt whether the contracting parties have intended to extend their reciprocal engagements beyond the term of their own lives, and to bind their successors. Conjunctures change; a burden that is at present light, may in other circumstances become insupportable, or at least oppressive: the manner of thinking among sovereigns is no less variable; and there are certain things of which it is proper that each prince should be at liberty to dispose according to his own system. There are others that are freely granted to one king, and would not be allowed to his successor. It therefore becomes necessary to consider the terms of the treaty, or the matter which forms the subject of it, in order to discover the intentions of the contracting powers.
Perpetual treaties, and those made for a determinate period, are real ones, since their duration cannot depend on the lives of the contracting parties.
In the same manner, when a king declares in the treaty that it is made "for himself and his successors," it is manifest that this a real treaty. It attaches to the state, and is intended to last as long as the kingdom itself.
When a treaty expressly declares that it is made for the good of the kingdom, it thus furnishes an evident proof that the contracting powers did not mean that its duration should depend on that of their own lives, but on that of the kingdom itself. Such treaty is therefore a real one.
Independently even of this express declaration, when a treaty is made for the purpose of procuring to the state a certain advantage which is in its own nature permanent and unfailing, there is no reason to suppose that the prince by whom the treaty has been concluded, intended to limit it to the duration of his own life. Such a treaty ought therefore to be considered as a real one, unless there exist very powerful evidence to prove that the party with whom it was made granted the advantage in question only out of regard to the prince then reigning, and as a personal favour: in which case the treaty terminates with the life of the prince, as the motive for the concession expires with him. But such a reservation is not to be presumed on slight grounds: for, it would seem, that, if the contracting parties had had it in contemplation, they should have expressed it in the treaty.
In case of doubt, where there exists no circumstance by which we can clearly prove either the personality or the reality of a treaty, it ought to be presumed a real treaty if it chiefly consists of favourable articles, if of odious ones, a personal treaty. By favourable articles we mean those which tend to the mutual advantage of the contracting powers, and which equally favour both parties; by odious articles, we understand those which onerate one of the parties only, or which impose a much heavier burden upon the one than upon the other. We shall treat this subject more at large in the chapter on the "Interpretation of Treaties." Nothing is more conformable to reason and equity than this rule. Whenever absolute certainty is unattainable in the affairs of men, we must have recourse to presumption. Now, if the contracting powers have not explained themselves, it is natural, when the question relates to things favourable, and equally advantageous to the two allies, to presume that it was their intention to make a real treaty, as being the more advantageous to their respective kingdoms: and if we are mistaken in this presumption, we do no injury to either party. But, if there be any thing odious in the engagements, if one of the contracting states finds itself overburdened by them, how can it be presumed that the prince who entered into such engagements intended to lay that burden upon his kingdom in perpetuity? Every sovereign is presumed to desire the safety and advantage of the state with which he is intrusted: wherefore it cannot be supposed that he has consented to load it for ever with a burdensome obligation. If necessity rendered such a measure unavoidable, it was incumbent on his ally to have the matter explicitly ascertained at the time; and it is probable that he would not have neglected this precaution, well knowing that mankind in general, and sovereigns in particular, seldom submit to heavy and disagreeable burdens, unless bound to do so by formal obligations. If it happens then that the presumption is a mistake, and makes him lose something of his right, it is a consequence of his own negligence. To this we may add, that, if either the one or the other must sacrifice a part of his right, it will be a less grievous violation of the laws of equity that the latter should forego an expected advantage, than that the former should suffer a positive loss and detriment. This is the famous distinction de lucro captando, and de damno vitando.
We do not hesitate to include equal treaties of commerce in the number of those that are favourable, since they are in general advantageous, and perfectly conformable to the law of nature. As to alliances made on account of war, Grotius says with reason, that "defensive alliances are more of a favourable nature, offensive alliances have something in them that approaches nearer to what is burdensome or odious."
We could not dispense with the preceding brief summary of those discussions, lest we should in this part of our treatise leave a disgusting chasm. They are, however, but seldom resorted to in modern practice, as sovereigns at present generally take the prudent precaution of explicitly ascertaining the duration of their treaties. They treat for themselves and their successors, for a certain number of years, &c. or they treat only for the time of their own reign, for an affair peculiar to themselves, for their families, &c.
Since public treaties, even those of a personal nature, concluded by a king, or by any other sovereign who is invested with sufficient power, are treaties of the state, and obligatory on the whole nation (§ 186), real treaties, which were intended to subsist independently of the person who has concluded them, are undoubtedly binding on his successors; and the obligation which such treaties impose on the state passes successively to all her rules as soon as they assume the public authority. The case is the same with respect to the rights acquired by those treaties: they are acquired for the sate, and successively pass to her conductors.
It is at present a pretty general custom for the successor to confirm or renew even real alliances concluded by his predecessors: and prudence requires that this precaution should not be neglected, since men pay greater respect to an obligation which they have themselves contracted, than to one which devolves on them from another quarter, or to which they have only tacitly subjected themselves. The reason is, that, in the former case, they consider their word to be engaged, and, in the latter, their conscience alone.
The treaties that have no relation to the performance of reiterated acts, but merely relate to transient and single acts which are concluded at once, those treaties (unless indeed it be more proper to call them by another name) those conventions, those compacts, which are accomplished once for all, and not by successive acts, are no sooner executed than they are completed and perfected. If they are valid, they have in their own nature a perpetual and irrevocable effect: nor have we them in view when we inquire whether a treaty be real or personal. Puffendorf gives us the following rules to direct us in this inquiry "1. That the successors are bound to observe the treaties of peace concluded by their predecessors. 2. That a successor should observe all the lawful conventions by which his predecessor has transferred any right to a third party." This is evidently wandering from the point in question: it is only saying that what is done with validity by a prince, cannot be annulled by his successors. And who doubts it? A treaty of peace is in its own nature made with a view to its perpetual duration: and, as soon as it is once duly concluded and ratified, the affair is at an end; the treaty must be accomplished on both sides, and observed according to its tenor. If it is executed upon the spot, there ends the business at once. But, if the treaty contains engagements for the performance of successive and reiterated acts, it will still be necessary to examine, according to the rules we have laid down, whether it be in this respect real or personal, whether the contracting parties intended to bind their successors to the performance of those acts, or only promised them for the time of their own reign. In the same manner, as soon as a right is transferred by a lawful convention, it no longer belongs to the state that has ceded it; the affair is concluded and terminated. But, if the successor discovers any flaw in the deed of transfer, and proves it, he is not to be accused of maintaining that the convention is not obligatory on him, and refusing to fulfil it; he only shows that such convention has not taken place; for a defective and invalid deed is a nullity, and to be considered as having never existed.
The third rule given by Puffendorf is no less useless with respect to this question. It is, "that if, after the other ally has already executed something to which he was bound by virtue of the treaty, the king happens to die before he has accomplished in his turn what he had engaged to perform, his successor is indispensably obliged to perform it. For, what the other ally has executed under the condition of receiving an equivalent, having turned to the advantage of the state, or at least having been done with that view, it is clear that, if he does not receive the return for which he had stipulated, he then acquires the same right as a man who has paid what he did not owe; and, therefore, the successor is obliged to allow him a complete indemnification for what he has done or given, or to make good, on his own part, what his predecessor had engaged to perform." All this, I say, is foreign to our question. If the alliance is real, it still subsists, notwithstanding the death of one of the contracting parties; if it is personal, it expires with them, or either of them (§ 183). But, when a personal alliance comes to be dissolved in this manner, it is quite a different question to ascertain what one of the allied states is bound to perform, in case the other has already executed something in pursuance of the treaty: and this question is to be determined on very different principles. It is necessary to distinguish the nature of what has been done pursuant to the treaty. If it has been any of those determinate and substantial acts which it is usual with contracting parties mutually to promise to each other in exchange, or by way of equivalent, there can be no doubt that he who has received, ought to give what he has promised in return, if he would adhere to the agreement, and is obliged to adhere to it: if he is not bound, and is unwilling to adhere to it, he ought to restore what he has received, to replace things in their former state, or to indemnify the ally from whom he has received the advantage in question. To act otherwise, would be keeping possession of another's property. In this case, the ally is in the situation, not of a man who has paid what he did not owe, but of one who has paid beforehand for a thing that has not been delivered to him. But, if the personal treaty related to any of those uncertain and contingent ads which are to be performed as occasions offer, of those promises which are not obligatory if an opportunity of fulfilling them does not occur, it is only on occasion likewise that the performance of similar acts is due in return: and, when the term of the alliance is expired, neither of the parties remains bound by any obligation. In a defensive alliance, for instance, two kings have reciprocally promised each other a gratuitous assistance during the term of their lives: one of them is attacked: he is succoured by his ally, and dies before he has an opportunity to succour him in his turn: the alliance is at an end, and no obligation thence devolves on the successor of the deceased, except indeed that he certainly owes a debt of gratitude to the sovereign who has given a salutary assistance to his state. And we must not pronounce such an alliance an injurious one to the ally who has given assistance without receiving any. His treaty was one of those speculating contracts in which the advantages or disadvantages wholly depend on chance: he might have gained by it, though it has been his fate to lose.
We might here propose another question. The personal alliance expiring at the death of one of the allies, if the survivor, under an idea that it is to subsist with the successor, fulfils the treaty on his part in favour of the latter, defends his country, saves some of his towns, or furnishes provision for his army, what ought the sovereign to do, who is thus succoured? He ought, doubtless, either to suffer the alliance to subsist, as the ally of his predecessor has conceived that it was to subsist (and this will be a tacit renewal and extension of the treaty) or to pay for the real service he has received, according to a just estimate of its importance, if he does not choose to continue that alliance. It would be in such a case as this that we might say with Puffendorf, that he who has rendered such a service has acquired the right of a man who has paid what he did not owe.
The duration of a personal alliance being restricted to the persons of the contracting sovereigns, if, from any cause whatsoever, one of them ceases to reign, the alliance expires: for they have contracted in quality of sovereigns; and he who ceases to reign no longer exists as a sovereign, though he still lives as a man.
Kings do not always treat solely and directly for their kingdoms; sometimes, by virtue of the power they have in their hands, they make treaties relative to their own persons, or their families; and this they may lawfully do, as the welfare of the state is interested in the safety and advantage of the sovereign, properly understood. These treaties are personal in their own nature, and expire, of course, on the death of the king or the extinction of his family. Such is an alliance made for the defence of a king and his family.
It is asked, whether such an alliance subsists with the king and the royal family, when, by some revolution, they are deprived of the crown. We have remarked above (§ 194), that a personal alliance expires with the reign of him who contracted it: but that is to be understood of an alliance formed with the state, and restricted, in its duration, to the reign of the contracting king. But the alliance of which we are now to treat, is of another nature. Although obligatory on the state, since she is bound by all the public acts of her sovereign, it is made directly in favour of the king and his family: it would, therefore, be absurd that it should be dissolved at the moment when they stand in need of it, and by the very event which it was intended to guard against. Besides, the king does not forfeit the character of royalty merely by the loss of his kingdom. If he is unjustly despoiled of it by an usurper, or by rebels, he still preserves his rights, among which are to be reckoned his alliances.
But who shall judge whether a king has been dethroned lawfully or by violence? An independent nation acknowledges no judge. If the body of the nation declare that the king has forfeited his right, by the abuse he has made of it, and depose him, they may justly do it when their grievances are well founded; and no other power has a right to censure their conduct. The personal ally of this king ought not, therefore, to assist him against the nation who have made use of their right in deposing him: if he attempts it, he injures that nation. England declared war against Louis XIV., in the year 1688, for supporting the interests of James II., who had been formally deposed by the nation, The same country declared war against him a second time, at the beginning of the present century, because that prince acknowledged the son of the deposed monarch, under the title of James III. In doubtful cases, and when the body of the nation has not pronounced, or has not pronounced freely, a sovereign ought naturally to support and defend an ally; and it is then that the voluntary law of nations subsists between different states. The party who have expelled the king maintain that they have right on their side: the unfortunate prince and his allies flatter themselves with having the same advantage; and, as they have no common judge upon earth, there remains no other mode of deciding the contest than an appeal to arms: they, therefore, engage in a formal war.
Finally, when the foreign prince has faithfully fulfilled his engagements towards an unfortunate monarch, when he has done, in his defence, or to procure his restoration, every thing which, by the terms of the alliance, he was bound to do, if his efforts have proved ineffectual, it cannot be expected, by the dethroned prince, that he shall support an endless war in his favour, that he shall for ever continue at enmity with the nation or the sovereign who has deprived him of the throne. He must at length think of peace, abandon his unfortunate ally, and consider him as having himself abandoned his right through necessity. Thus, Louis XIV. was obliged to abandon James II, and to acknowledge King William, though he had at first treated him as an usurper.
The same question presents itself in real alliances, and, in general, in all alliances made with a state, and not in particular with a king, for the defence of his person. An ally ought, doubtless, to be defended against every invasion, against every foreign violence, and even against his rebellious subjects; in the same manner a republic ought to be defended against the enterprises of one who attempts to destroy the public liberty. But the other party in the alliance ought to recollect that he is the ally, and not the judge, of the state or the nation. If the nation has deposed her king in form, if the people of a republic have expelled their magistrates, and set themselves at liberty, or, either expressly or tacitly, acknowledged the authority of an usurper, to oppose these domestic regulations, or to dispute their justice or validity, would be interfering in the government of the nation, and doing her an injury (see §§ 54, &c. of this Book.) The ally remains the ally of the state, notwithstanding the change that has happened in it. However, if this change renders the alliance useless, dangerous, or disagreeable to him he is at liberty to renounce it: for, he may upon good grounds assert that he would not have entered into an alliance with that nation, had she been under her present form of government.
To this case we may also apply what we have said above respecting a personal ally. However just the cause of that king may be, who is expelled from the throne either by his subjects or by a foreign usurper, his allies are not obliged to support an eternal war in his favour. After having made ineffectual efforts to reinstate him, they must at length restore to their people the blessings of peace; they must come to an accommodation with the usurper, and for that purpose treat with him as with a lawful sovereign. Louis XIV., finding himself exhausted by a bloody and unsuccessful war, made an offer, at Gertruydenberg, to abandon his grandson, whom he had placed on the throne of Spain: and afterwards, when the aspect of affairs was changed, Charles of Austria, the rival of Philip, saw himself, in his turn, abandoned by his allies. They grew weary of exhausting their states in order to put him in possession of a crown to which they thought him justly entitled, but which they no longer saw any probability of being able to procure for him.
An alliance is dissolved at the expiration of the term for which it had been concluded. This term is sometimes fixed, as, when an alliance is made for a certain number of years; sometimes it is uncertain, as in personal alliances, whose duration depends on the livAes of the contracting powers. The term is likewise uncertain, when two or more sovereigns form an alliance with a view to some particular object; as, for instance, that of expelling a horde of barbarous invaders from a neighbouring country, of reinstating a sovereign on his throne, &c. The duration of such an alliance depends on the completion of the enterprise for which it was formed. Thus, in the last-mentioned instance, when the sovereign is restored, and so firmly seated on his throne as to be able to retain the undisturbed possession of it, the alliance, which was formed with a sole view to his restoration, is now at an end. But, on the other hand, if the enterprise prove unsuccessful, the moment his allies are convinced of the impossibility of carrying it into effect, the alliance is likewise at an end; for it is time to renounce an undertaking when it is acknowledged to be impracticable.
A treaty entered into for a limited time may be renewed by the common consent of the allies, which consent may be either expressly or tacitly made known. When the treaty is expressly renewed, it is the same as if a new one were concluded, in all respects similar to the former.
The tacit renewal of a treaty is not to be presumed upon slight grounds; for, engagements of so high importance are well entitled to the formality of an express consent. The presumption, therefore, of a tacit renewal must be founded on acts of such a nature as not to admit a doubt of their having been performed in pursuance of the treaty. But, even in this case, still another difficulty arises: for, according to the circumstances and nature of the acts in question, they may prove nothing more than a simple continuation or extension of the treaty, which is very different from a renewal, especially as to the term of duration. For instance, England has entered into a subsidiary treaty with a German prince, who is to keep on foot, during ten years, a stated number of troops at the disposal of that country, on condition of receiving from her a certain yearly sum. The ten years being expired, the king of England causes the sum stipulated for one year to be paid: the ally receives it: thus the treaty is indeed tacitly continued for one year; but it cannot be said to be renewed; for the transaction of that year does not impose an obligation of doing the same thing for ten years successively. But, supposing a sovereign has, in consequence of an agreement with a neighbouring state, paid her a million of money for permission to keep a garrison in one of her strongholds during ten years, if, at the expiration of that term, the sovereign, instead of withdrawing his garrison, makes his ally a tender of another million, and the latter accepts it, the treaty is, in this case, tacitly renewed.
When the term for which the treaty was made is expired, each of the allies is perfectly free, and may consent or refuse to renew it, as he thinks proper. It must, however, be confessed, that if one of the parties, who has almost singly reaped all the advantages of the treaty, should, without just and substantial reasons, refuse to renew it now that he thinks he will no longer stand in need of it, and forsees the time approaching when his ally may derive advantage from it in turn, such conduct would be dishonourable, inconsistent with that generosity which should characterize sovereigns, and widely distant from those sentiments of gratitude and friendship that are due to an old and faithful ally. It is but too common to see great potentates, when arrived at the summit of power, neglect those who have assisted them in attaining it.
Treaties contain promises that are perfect and reciprocal. If one of the allies fails in his engagements, the other may compel him to fulfil them: a perfect promise confers a right to do so. But, if the latter has no other expedient than that of arms to force his ally to the performance of his promises, he will sometimes find it more eligible to cancel the promises on his own side also, and to dissolve the treaty. He has undoubtedly a right to do this, since his promises were made only on condition that the ally should, on his part, execute every thing which he had engaged to perform. The party, therefore, who is offended or injured in those particulars which constitute the basis of the treaty, is at liberty to choose the alternative of either compelling a faithless ally to fulfil his engagements, or of declaring the treaty dissolved by his violation of it. On such an occasion, prudence and wise policy will point out the line of conduct to be pursued.
But when there exist between allies two or more treaties, different from and independent of each other, the violation of one of those treaties does not directly disengage the injured party from the obligation he has contracted in the others: for, the promises contained in these do not depend on those included in the violated treaty. But the offended ally may, on the breach of one treaty by the other party, threaten him with a renunciation, on his own part, of all the other treaties by which they are united, and may put his threats in execution if the other disregards them. For, if any one wrests or withholds from me my right, I may, in the state of nature, in order to oblige him to do me justice, to punish him, or to indemnify myself, deprive him also of some of his rights, or seize and detain them till I have obtained complete satisfaction. And, if recourse is had to arms, in order to obtain satisfaction for the infringement of that treaty, the offended party begins by stripping his enemy of all the rights which had accrued to him from the different treaties subsisting between them: and we shall see, in treating of war, that he may do this with justice.
Some writers1 would extend what we have just said to the different articles of a treaty which have no connection with the article that has been violated, saying we ought to consider those several articles as so many distinct treaties concluded at the same time. They maintain, therefore, that, if either of the allies violates one article of the treaty, the other has not immediately a right to cancel the entire treaty, but that he may either refuse, in his turn, what he had promised with a view to the violated article, or compel his ally to fulfil his promises if there still remains a possibility of fulfilling them, if not, to repair the damage; and that for this purpose he may threaten to renounce the entire treaty, a menace which he may lawfully put in execution, if it be disregarded by the other. Such undoubtedly is the conduct which prudence, moderation, the love of peace, and charity would commonly prescribe to nations. Who will deny this, and madly assert that sovereigns are allowed to have immediate recourse to arms, or even to break every treaty of alliance and friendship, for the least subject of complaint? But the question here turns on the simple right, and not on the measures which are to be pursued in order to obtain justice; and the principle upon which those writers ground their decision, appears to me utterly indefensible. We cannot consider the several articles of the same treaty as so many distinct and independent treaties: for, though we do not see any immediate connection between some of those articles, they are all connected by this common relation, viz. that the contracting powers have agreed to some of them in consideration of the others, and by way of compensation. I would perhaps never have consented to this article, if my ally had not granted me another, which in its own nature has no relation to it. Every thing, therefore, which is comprehended in the same treaty, is of the same force and nature as a reciprocal promise unless where a formal exception is made to the contrary. Grotius very properly observes that "every article of a treaty carries with it a condition, by the non-performance of which the treaty is wholly cancelled." He adds, that a clause is sometimes inserted to the following effect, viz. "that the violation of any one of the articles shall not cancel the whole treaty," in order that one of the parties may not have, in every slight offence, a pretext for receding from his engagements. This precaution is extremely prudent, and very conformable to the care which nations ought to take of preserving peace, and rendering their alliances durable.
In the same manner as a personal treaty expires at the death of the king who has contracted it, a real treaty is dissolved, if one of the allied nations is destroyed, that is to say, not only if the men who compose it happen all to perish, but also if, from any cause whatsoever, it loses its national quality or that of a political and independent society. Thus, when a state is destroyed and the people are dispersed, or when they are subdued by a conqueror, all their alliances and treaties fall to the ground with the public power that had contracted them. But it is here to be observed, that treaties or alliances which impose a mutual obligation to perform certain acts, and whose existence consequently depends on that of the contracting powers, are not to be confounded with those contracts by which a perfect right is once for all acquired, independent of any mutual performance of subsequent acts. If, for instance, a nation has for ever ceded to a neighbouring prince the right of fishing in a certain river, or that of keeping a garrison in a particular fortress, that prince does not lose his rights, even though the nation from whom he has received them happens to be subdued, or in any other manner subjected to a foreign dominion. His rights do not depend on the preservation of that nation: she had alienated them; and the conqueror by whom she has been subjugated can only take what belonged to her. In the same manner, the debts of a nation, or those for which the sovereign has mortgaged any of his towns or provinces, are not cancelled by conquest. The king of Prussia, on acquiring Silesia by conquest and by the treaty of Breslau, took upon himself the debts for which that province stood mortgaged to some English merchants. In fact, his conquest extended no further than the acquisition of those rights which the house of Austria had possessed over the country; and he could only take possession of Silesia, such as he found it at the time of the conquest, with all its rights and all its burdens. For a conqueror to refuse to pay the debts of a country he has subdued, would be robbing the creditors, with whom he is not at war.
Since a nation or a state, of whatever kind, cannot make any treaty contrary to those by which she is actually bound (§ 165), she cannot put herself under the protection of another state, without reserving all her alliances and all her existing treaties. For, the convention by which a state places herself under the protection of another sovereign, is a treaty (§ 175): if she does it of her own accord, she ought to do it in such a manner, that the new treaty may involve no infringement of her pre-existing ones. We have seen (§ 176) what rights a nation derives, in a case of necessity, from the duty of self-preservation.
The alliances of a nation are therefore not dissolved when she puts herself under the protection of another state, unless they be incompatible with the conditions of that protection. The ties by which she was bound to her former allies still subsist, and those allies still remain bound by their engagements to her, as long as she has not put it out of her power to fulfil their engagements to them.
When necessity obliges a people to put themselves under the protection of a foreign power, and to promise him the assistance of their whole force against all opponents whatsoever, without excepting their allies, their former alliances do indeed subsist, so far as they are not incompatible with the new treaty of protection. But, if the case should happen, that a former ally enters into a war with the protector, the protected state will be obliged to declare for the latter, to whom she is bound by closer ties, and by a treaty which, in case of collision, is paramount to all the others. Thus the Nepesinians, having been obliged to submit to the Etrurians, though themselves afterwards bound to adhere to their treaty of submission or capitulation, preferably to the alliance which had subsisted between them and the Romans: postquam deditionis, quam societatis, fides sanctior erat, says Livy.
Finally, as treaties are made by the mutual agreement of the parties, they may also be dissolved by mutual consent, at the free will of the contracting powers. And, even though a third party should find himself interested in the preservation of the treaty, and should suffer by its dissolution, yet, if he had no share in making such treaty, and no direct promise had been made to him, those who have reciprocally made promises to each other, which eventually prove advantageous to that third party, may also reciprocally release each other from them, without consulting him, or without his having a right to oppose them. Two monarchs have bound themselves by a mutual promise to unite their forces for the defence of a neighbouring city; that city derives advantage from their assistance; but she has no right to it; and, as soon as the two monarchs think proper mutually to dispense with their engagements, she will be deprived of their aid, but can have no reason to complain on the occasion, since no promise had been made to her.
THE public compacts, called conventions, articles of agreement, &c., when they are made between sovereigns, differ from treaties only in their object (§ 153). What we have said of the validity of treaties, of their execution, of their dissolution, and of the obligations and rights that flow from them, is all applicable to the various conventions which sovereigns may conclude with each other. Treaties, conventions, and agreements are all public engagements, in regard to which there is but one and the same right, and the same rules. We do not here wish to disgust the reader by unnecessary repetitions: and it were equally unnecessary to enter into an enumeration of the various kinds of these conventions, which are always of the same nature, and differ only in the matter which constitutes their object.
But there are public conventions made by subordinate powers, in virtue either of an express mandate from the sovereign, or of the authority with which they are invested by the terms of their commission, and according as the nature of the affairs with which they are intrusted may admit or require the exercise of that authority.
The appellation of inferior or subordinate powers is given to public persons who exercise some portion of the sovereignly in the name and under the authority of the sovereign: such are magistrates established for the administration of justice, generals of armies, and ministers of state.
When, by an express order from their sovereign on the particular occasion, and with sufficient powers derived from him for the purpose those persons form a convention, such convention is made in the name of the sovereign himself, who contracts by the mediation and ministry of his delegate or proxy: this is the case we have mentioned in § 156.
But public persons, by virtue of their office, or of the commission given to them, have also themselves the power of making conventions on public affairs, exercising on those occasions the right and authority of the sovereign by whom they are commissioned. There are two modes in which they acquire that power; it is given to them in express terms by the sovereign: or it is naturally derived from their commission itself, the nature of the affairs with which these persons are intrusted, requiring that they should have a power to make such conventions, especially in cases where they cannot await the orders of their sovereign. Thus, the governor of a town, and the general who besieges it, have a power to settle the terms of capitulation; and whatever agreement they thus form within the terms of their commission, is obligatory on the state or sovereign who has invested them with the power by which they conclude it. As conventions of this nature take place principally in war, we shall treat of them more at large in Book III.
If a public person, an ambassador, or a general of an army, exceeding the bounds of his commission, concludes a treaty or a convention without orders from the sovereign, or without being authorised to do it by virtue of his office, the treaty is null, as being made without sufficient powers (§ 157); it cannot become valid without the express or tacit ratification of the sovereign. The express ratification is a written deed by which the sovereign approves the treaty, and engages to observe it. The tacit ratification is implied by certain steps which the sovereign is justly presumed to take only in pursuance of the treaty, and which he could not be supposed to take without considering it as concluded and agreed upon. Thus, on a treaty of peace being signed by public ministers who have even exceeded the orders of their sovereigns, if one of the sovereigns causes troops to pass on the footing of friends through the territories of his reconciled enemy, he tacitly ratifies the treaty of peace. But if, by a reservatory clause of the treaty, the ratification of the sovereign be required, as such reservation is usually understood to imply an express ratification, it is absolutely requisite that the treaty he thus expressly ratified before it can acquire its full force.
By the Latin term sponsio, we express an agreement relating to affairs of state, made by a public person, who exceeds the bounds of his commission, and acts without the orders or command of the sovereign. The person who treats for the state in this manner without being commissioned for the purpose, promises of course to use his endeavours for prevailing on the state or sovereign to ratify the articles he has agreed to: otherwise his engagement would be nugatory and illusive. The foundation of this agreement can be no other, on either side, than the hope of such ratification.
The Roman history furnishes us with various instances of such agreements: the one that first arrests our attention is that which was concluded at the Furcζ Caudinζ the most famous instance on record, and one that has been discussed by the most celebrated writers. The consuls Titus Veturius Calvinus and Spurius Postumius, with the Roman army, being enclosed in the defiles of the Furcζ Caudinζ, without hope of escaping, concluded a shameful agreement with the Samnites informing them, however, that they could not make a real public treaty (fdus) without orders from the Roman people, without the feciales, and the ceremonies consecrated by custom. The Samnite general contented himself with exacting a promise from the consuls and principal officers of the army, and obliging them to deliver him six hundred hostages; after which, having made the Roman troops lay down their arms, and obliged them to pass under the yoke, he dismissed them. The senate, however, refused to accede to the treaty, delivered up those who had concluded it to the Samnites, who refused to receive them and then though themselves free from all obligation, and screened from all reproach. Authors have entertained very different sentiments of this conduct. Some assert, that, if Rome did not choose to ratify the treaty, she ought to have replaced things in the same situation they were in before the agreement, by sending back the whole army to their encampment at the Furcζ Caudinζ: and this the Samnites also insisted upon. I confess that I am not entirely satisfied with the reasonings I have found on this question, even in authors whose eminent superiority I am in other respects fully inclined to acknowledge. Let us therefore endeavour, with the aid of their observations, to set the affair in a new light.
It presents two questions first, what is the person bound to do, who has made an agreement (sponsor), if the state disavows it? Secondly, what is the state bound to do? But, previous to the discussion of these questions, it is necessary to observe with Grotius, that the state is not bound by an agreement of that nature. This is manifest, even from the definition of the agreement called sponsio. The state has not given orders to conclude it: neither has she in any manner whatever conferred the necessary powers for the purpose: she has neither expressly given them by her injunctions or by a plenipotentiary commission, nor tacitly by a natural or necessary consequence of the authority intrusted to him who makes the agreement (sponsori). The general of an army has, indeed, by virtue of his commission, a power to enter, as circumstances may require, into a private convention a compact relative to himself, to his troops, or to the occurrences of war: but he has no power to conclude a treaty of peace. He may bind himself, and the troops under his command, on all the occasions where his functions require that he should have the power of treating; but he cannot bind the state beyond the extent of his commission.
Let us now see to what the person promising (sponsor) is bound, when the state disavows the agreement. We ought not here to deduce our arguments from the rules which obtain between private individuals under the law of nature: for, the nature of the things in question, and the situation of the contracting parties, necessarily make a difference between the two cases. It is certain that, between individuals, he who purely and simply promises what depends on the will of another, without being authorized to make such promise, is obliged, if the other disavows the transaction, to accomplish himself what he has promised, to give an equivalent to restore things to their former state; or, finally, to make full compensation to the person with whom he has treated, according to the various circumstances of the case. His promise (sponsio) can be understood in no other light. But this is not the case with respect to a public person, who, without authority, engages for the performance of his sovereign. The question in such case relates to things that infinitely surpass his power and all his faculties things which he can neither execute himself nor cause to be executed, and for which he cannot offer either an equivalent or a compensation in any wise adequate: he is not even at liberty to give the enemy what he has promised, without authority: finally, it is equally out of his power to restore things entirely to their former state. The party who treats with him cannot expect any thing of this nature. If the promisor has deceived him by saying he was sufficiently authorized, he has a right to punish him. But if, like the Roman consuls at the Furcζ Caudinζ, the promisor has acted with sincerity, informing him that he had not a power to bind the state by a treaty, nothing else can be presumed, but that the other party was willing to run the risk of making a treaty that must become void, if not ratified, hoping that a regard for him who had promised, and for the hostages, would induce the sovereign to ratify what had been thus concluded. If the event deceives his hopes, he can only blame his own imprudence. An eager desire of obtaining peace on advantageous conditions, and the temptation of some present advantages, may have been his only inducements to make so hazardous an agreement. This was judiciously observed by the consul Postumius himself, after his return to Rome. In his speech to the senate, as given to us by Livy, "Your generals," said he, "and those of the enemy, were equally guilty of imprudence, we, in incautiously involving ourselves in a dangerous situation they, in suffering a victory to escape them, of which the nature of the ground gave them a certainty; still distrusting their own advantages, and hasting, at any price, to disarm men who were ever formidable while they had arms in their hands. Why did they not keep us shut up in our camp? Why did they not send to Rome, in order to treat for peace, on sure grounds, with the senate and the people?
It is manifest that the Samnites contented themselves with the hope that the engagement which the consuls and principal officer had entered into, and the desire of saving six hundred knights, left as hostages, would induce the Romans to ratify the agreement, considering, that, at all events, they should still have those six hundred hostages, with the arms and baggage of the army, and the vain, or rather, as it is proved by its consequences, the fatal glory, of having made them pass under the yoke.
Under what obligation then were the consuls, and all the others who had joined with them in the promise (sponsores)? They themselves judged that they ought to be delivered up to the Samnites. This was not a natural consequence of the agreement (sponsionis); and from the observations above made, it does not appear that a general in such circumstances, having promised things which the promisee well knew to be out of his power, is obliged, on his promise being disavowed, to surrender his own person by way of compensation. But, as he has a power expressly to enter into such an engagement which lies fairly within the bounds of his commission, the custom of those times had doubtless rendered such engagement a tacit clause of the agreement called sponsio, since the Romans delivered up all the sponsores, all those who had promised: this was a maxim of their fecial law.
If the sponsor has not expressly engaged to deliver himself up, and if established custom does not lay him under an obligation to do so, it would seem that he is bound to nothing further by his promise than honestly to endeavour, by every lawful means, to induce the sovereign to ratify what he has promised: and there cannot exist a doubt in the case, provided the treaty be at all equitable, advantageous to the state, or supportable in consideration of the misfortune from which it has preserved her. But, to set out with the intention of making a treaty the instrument to ward off a deadly blow from the state, and soon after to advise the sovereign to refuse his ratification, not because the treaty is insupportable, but because an advantage may be taken of its having been concluded without authority such a proceeding would undoubtedly be a fraudulent and shameful abuse of the faith of treaties. But, what must the general do, who, in order to save his army, has been forced to conclude a treaty that is detrimental or dishonourable to the state? Must he advise the sovereign to ratify it? He will content himself with laying open the motives of his conduct, and the necessity that obliged him to treat: he will show, as Postumius did, that he alone is bound, and that he consents to be disowned and delivered up for the public safety. If the enemy are deceived, it is through their own folly. Was the general bound to inform them that, in all probability, his promises would not be ratified? It would be too much to require this of him. In such a case, it is sufficient that he does not impose on the enemy by pretending to more extensive powers than he really possesses, but contents himself with embracing the overtures which they make to him, without, on his side, holding forth any delusive hopes to decoy them into a treaty. It is the enemy's business to take all possible precautions for their own security; if they neglect them, why should not the general avail himself of the imprudence, as of an advantage presented to him by the hand of fortune? "It is she," said Postumius, "who has saved our army, after having put it in danger. The enemy's head was turned in his prosperity; and his advantages have been no more to him than a pleasant dream."
If the Samnites had only required of the Roman generals and army such engagements as the nature of their situation, and their commission, empowered them to enter into, if they had obliged them to surrender themselves prisoners of war, or if, from their inability to hold them all prisoners, they had dismissed them, upon their promise not to bear arms against them for some years, in case Rome should refuse to ratify the peace, the agreement would have been valid, as being made with sufficient powers; and the whole army would have been bound to observe it; for, it is absolutely necessary that the troops, or their officers, should have a power of entering into a contract on those occasions, and upon that footing. This is the case of capitulations, of which we shall speak in treating of war.
If the promisor has made an equitable and honourable convention, on an affair of such a nature, that, in case the convention be disallowed, he still has it in his own power to indemnify the party with whom he has treated. he is presumed to have personally pledged himself for such indemnification; and he is bound to make it, in order to discharge his promise, as did Fabius Maximus in the instance mentioned by Grotius, But there are occasions when the sovereign may forbid him to act in that manner, or to give any thing to the enemies of the state.
We have shown that a state cannot be bound by an agreement made without her orders, and without her having granted any power for that purpose. But is she absolutely free from all obligation? That is the point which now remains for us to examine. If matters as yet continue in their original situation, the state or the sovereign may simply disavow the treaty, which is of course done away by such disavowal, and becomes as perfect a nullity as if it had never existed, But the sovereign ought to make known his intentions as soon as the treaty comes to his knowledge: not indeed, that his silence alone can give validity to a convention which the contracting parties have agreed not to consider as valid without his approbation; but it would be a breach of good faith in him to suffer a sufficient time to elapse for the other party to execute, on his side, an agreement which he himself is determined not to ratify.
If any thing has already been done in consequence of the agreement, if the party, who has treated with the sponsor, has on his side fulfilled his engagements, either in the whole or in part, is the other party, on disavowing the treaty, bound to indemnify him, or restore things to their former situation? or is he allowed to reap the fruits of the treaty, at the same time that he refuses to ratify it? We should here distinguish the nature of the things that have been executed, and that of the advantages which have thence accrued to the state. He who, having treated with a public person not furnished with sufficient powers, executes the agreement on his side without waiting for its ratification, is guilty of imprudence, and commits an egregious error, into which he has not been led by the state with which he supposes he has contracted. If he has given up any part of his property, the other party is not justifiable in taking advantage of his folly, and retaining possession of what he has so given. Thus, when a state, thinking she has concluded a peace with the enemy's general, has in consequence delivered up one of her strong places, or given a sum of money, the sovereign of that general is, undoubtedly, bound to restore what he has received, if he does not choose to ratify the agreement. To act otherwise, would be enriching himself with another's property, and retaining that property without having any title to it.
But, if the agreement has given nothing to the state which she did not before possess, if, as in that of the Furcζ Caudinζ, the advantage simply consists in her escape from an impending danger, her preservation from a threatened loss, such advantage is a boon of fortune, which she may enjoy without scruple. Who would refuse to be saved by the folly of his enemy? And who would think himself obliged to indemnify that enemy for the advantage he had suffered to escape him, when no fraud had been used to induce him to forego that advantage? The Samnites pretended, that, if the Romans would not ratify the treaty made by their consuls, they ought to send back the army to the Furcζ Caudinζ, and restore every thing to its former state. Two tribunes of the people, who had been in the number of the sponsores, and wished to avoid being delivered up, had the assurance to maintain the same doctrine; and some authors have declared themselves of their opinion. What! the Samnites take advantage of conjunctures, in order to give law to the Romans, and to wrest from them a shameful treaty, they are so imprudent as to treat with the consuls, who expressly declare themselves unauthorized to contract for the state, they suffer the Roman army to escape, after having covered them with infamy, and shall not the Romans take advantage of the folly of an enemy so void of generosity? Must they either ratify a shameful treaty, or restore to the enemy all those advantages which the situation of the ground had given them, but which he had lost merely through his own folly? Upon what principle can such a decision be founded? Had Rome promised any thing to the Samnites? Had she prevailed upon them to let her army go, previous to the ratification of the agreement made by the consuls? If she had received any thing in consequence of that agreement, she would have been bound to restore it, as we have already said, because she would have possessed it without a title, on declaring the treaty null. But she had no share in the conduct of her enemies: she did not contribute to the egregious blunder they had committed; and she might as justly take advantage of it, as generals in war do of the mistakes of an unskilful opponent. Suppose a conqueror after having concluded a treaty with ministers who have expressly reserved the ratification to their master, should have the imprudence to abandon all his conquests without waiting for such ratification, must the other, with a foolish generosity, invite him back to take possession of them again, in case the treaty be not ratified?
I confess, however, and freely acknowledge, that, if the enemy who suffer an entire army to escape on the faith of an agreement concluded with the general, who is unprovided with sufficient powers, and a simple sponsor, I confess, I say, that if the enemy have behaved generously, if they had not availed themselves of their advantages to dictate shameful or too severe conditions, equity requires that the estate should either ratify the agreement or conclude a new treaty on just and reasonable conditions, abating even of her pretensions as far as the public welfare will allow. For, we ought never to abuse the generosity and noble confidence even of an enemy. Puffendorf thinks that the treaty at the Furcζ Caudinζ contained nothing that was too severe or insupportable. That author seems to make no great account of the shame and ignominy with which it would have branded the whole republic. He did not see the full extent of the Roman policy, which would never permit them, in their greatest distresses, to accept a shameful treaty, or even to make peace on the footing of a conquered nation: a sublime policy, to which Rome was indebted for all her greatness.
Finally, let us observe, that when the inferior power has, without orders, and without authority, concluded an equitable and honourable treaty, to rescue the state from an imminent danger, if the sovereign afterwards, on seeing himself thus delivered, should refuse to ratify the treaty, not because he thinks it a disadvantageous one, but, merely through a wish to avoid performing those conditions which were annexed as the price of his deliverance, he would certainly act in opposition to all the rules of honour and equity. This would be a case in which we might apply the maxim, summum jus, summa injuria.
To the example we have drawn from the Roman history, let us add a famous one taken from modem history. The Swiss, dissatisfied with France, entered into an alliance with the emperor against Louis XII. and made an irruption into Burgundy, in the year 1513. They laid siege to Dijon. La Trimouille, who commanded in the place, fearing that he should be unable to save it, treated with the Swiss, and, without waiting for a commission from the king, concluded an agreement, by virtue of which the king of France was to renounce his pretensions to the duchy of Milan, and to pay the Swiss, by settled installments, the sum of six hundred thousand crowns; whereas the Swiss, on their side, promised nothing further than to return home to their own country, thus remaining at liberty to attack France again, if they thought proper. They received hostages, and departed. The king was very much dissatisfied with the treaty, though it had saved Dijon, and rescued the kingdom from an imminent and alarming danger; and he refused to ratify it." It is certain that La Trimouille had exceeded the powers he derived from his commission, especially in promising that the king should renounce the duchy of Milan. It is probable, indeed, that his only view was to rid himself of an enemy whom it was less difficult to overreach in negotiation than to subdue in battle. Louis was not obliged to ratify and execute a treaty concluded without orders and without authority; and, if the Swiss were deceived, they could only blame their own imprudence. But, as it manifestly appeared that La Trimouille did not behave towards them with candour and honesty, since he had deceived them on the subject of the hostages, by giving, in that character, men of the meanest rank, instead of four of the most distinguished citizens, as he had promised, the Swiss would have been justifiable in refusing to make peace without obtaining satisfaction for that act of perfidy, either by the surrender of him who was the author of it, or in some other manner.
The promises, the conventions, all the private contracts of the sovereign, are naturally subject to the same rules as those of private persons. If any difficulties arise on the subject, it is equally conformable to the rules of decorum, to that delicacy of sentiment which ought to be particularly conspicuous in a sovereign, and to the love of justice, to cause them to be decided by the tribunals of the state. And such indeed is the practice of all civilized states that are governed by settled laws.
The conventions and contracts which the sovereign, in his sovereign character and in the name of the state, forms with private individuals of a foreign nation, fall under the rules we have laid down with respect to public treaties. In fact, when a sovereign enters into a contract with one who is wholly independent of him and of the state, whether it be with a private person, or with a nation or sovereign, this circumstance does not produce any difference in the manner of deciding the controversies which may arise from the contract. That private person, being a subject of the state, is obliged to submit his pretensions to the established courts of justice. It is added by some writers on this subject, that the sovereign may rescind those contracts, if they prove inimical to the public welfare. Undoubtedly he may do so, but not upon any principle derived from the peculiar nature of such contracts: it must be either upon the same principle which invalidates even a public treaty when it is ruinous to the state and inconsistent with the public safety, or by virtue of the eminent domain, which gives the sovereign a right to dispose of the property of the citizens with a view to the common safety. We speak here of an absolute sovereign. It is from the constitution of each state that we are to learn who are the persons, and what is the power, entitled to contract in the name of the state, to exercise the supreme authority, and to pronounce on what the public welfare requires.
When a lawful power contracts in the name of the state, it lays an obligation on the nation itself, and consequently on all the future rulers of the society. When, therefore, a prince has the power to form a contract in the name of the state, he lays an obligation on all his successors; and these are not less bound than himself to fulfil his engagements.
The conductor of the nation may have dealings of his own, and private debts; and his private property alone is liable for the discharge of such debts. But loans contracted for the service of the state, debts incurred in the administration of public affairs, are contracts in all the strictness of law, and obligatory on the state and the whole nation, which is indispensably bound to discharge those debts.8 When once they have been contracted by lawful authority, the right of the creditor is indefeasible. Whether the money borrowed has been turned to the advantage of the state, or squandered in foolish expenses, is no concern of the person who has lent it: he has intrusted the nation with his property, and the nation is bound to restore it to him again: it is so much the worse for her, if she has committed the management of her affairs to improper hands.
This maxim, however, has its bounds, founded even on the nature of the thing. The sovereign has not, in general, a power to render the state or body corporate liable for the debts he contracts, unless they be incurred with a view to the national advantage, and in order to enable him to provide for all occurrences. If he is absolute, it belongs to him alone to decide, in all doubtful cases, what the welfare and safety of the state require. But, if he should, without necessity, contract debts of immense magnitude and capable of ruining the nation for ever, there could not then exist any doubt in the case: the sovereign has evidently acted without authority; and those who have lent him their money have imprudently risked it. It cannot be presumed that a nation has ever consented to submit to utter ruin through the caprice and foolish prodigality of her ruler.
As the national debts can only be paid by contributions and taxes, wherever the sovereign has not been intrusted by the nation with a power to levy taxes and contributions, or, in short, to raise supplies by his own authority, neither has he a power to render her liable for what he borrows, or to involve the state in debt. Thus, the king of England, who has the right of making peace and war, has not that of contracting national debts, without the concurrence of parliament: because he cannot, without their concurrence, levy any money on his people.
The case is not the same with the donations of the sovereign as with his debts. When a sovereign has borrowed without necessity, or for an unwise purpose, the creditor has intrusted the state with his property; and it is just that the state should restore it to him, if at the time of the transaction, he could entertain a reasonable presumption that it was to the state he was lending it. But, when the sovereign gives away any of the property of the state, a part of the national domain, a considerable fief, he has no right to make such grant except with a view to the public welfare, as a reward for services rendered to the state, or for some other reasonable cause, in which the nation is concerned: if he has made the donation without reason, and without a lawful cause, he has made it without authority. His successor, or the state, may at any time revoke such a grant; nor would the revocation be a wrong done to the grantee, since it does not deprive him of any thing which he could justly call his own. What we here advance holds true of every sovereign whom the law does not expressly invest with the free and absolute disposal of the national property: so dangerous a power is never to be founded on presumption.
Immunities and privileges conferred by the mere liberality of the sovereign, are a kind of donation, and may be revoked in the same manner, if they prove detrimental to the state. But a sovereign cannot revoke them by his bare authority, unless he be absolute: and, even in this case, he ought to be cautious and moderate in the exertion of his power, uniting an equal share of prudence and equity on the occasion. Immunities granted for particular reasons, or with a view to some return, partake of the nature of a burdensome contract, and can only be revoked in case of abuse, or when they become incompatible with the safety of the state. And if they be suppressed on this latter account, an indemnification is due to those who enjoyed them.
THOUGH we have sufficiently established (§§ 163 and 164) the indispensable necessity of keeping promises, and observing treaties, the subject is of such importance, that we cannot forbear considering it here in a more general view, as interesting, not only to contracting parties, but likewise to all nations, and to the universal society of mankind.
Every thing which the public safety renders inviolable is sacred in society. Thus, the person of the sovereign is sacred, because the safety of the state requires that he should be in perfect security, and above the reach of violence: thus the people of Rome declared the persons of their tribunes sacred, considering it as essential to their own safety that their defenders should be screened from alt violence, and even exempt from fear. Every thing, therefore, which the common safety of mankind and the peace and security of human society require to be held inviolable, is a thing that should be sacred among nations.
Who can doubt that treaties are in the number of those things that are to be held sacred by nations? By treaties the most important affairs are determined; by them the pretensions of sovereigns are regulated; on them nations are to depend for the acknowledgment of their rights, and the security of their dearest interests. Between bodies politic, between sovereigns who acknowledge no superior on earth, treaties are the only means of adjusting their various pretensions, of establishing fixed rules of conduct, of ascertaining what they are entitled to expect, and what they have to depend on. But treaties are no better than empty words, if nations do not consider them as respectable engagements, as rules which are to be inviolably observed by sovereigns, and held sacred throughout the whole earth.
The faith of treaties, that firm and sincere resolution, that invariable constancy in fulfilling our engagements, of which we make profession in a treaty, is therefore to be held sacred and inviolable between the nations of the earth, whose safety and repose it secures: and, if mankind be not wilfully deficient in their duty to themselves, infamy must ever be the portion of him who violates his faith.
He who violates his treaties, violates at the same time the law of nations; for, he disregards the faith of treaties, that faith which the law of nations declares sacred; and, so far as depends on him, he renders it vain and ineffectual. Doubly guilty, he does an injury to his ally, he does an injury to all nations, and inflicts a wound on the great society of mankind. "On the observance and execution of treaties," said a respectable sovereign, "depends all the security which princes and states have with respect to each other: and no dependence could henceforward be placed in future conventions if the existing ones were not to be observed."
As all nations are interested in maintaining the faith of treaties, and causing it to be everywhere considered as sacred and inviolable, so likewise, they are justifiable in forming a confederacy for the purpose of repressing him who testifies a disregard for it, who openly sports with it, who violates and tramples it under foot. Such a man is a public enemy who saps the foundations of the peace and common safety of nations. But we should be careful not to extend this maxim to the prejudice of that liberty and independence to which every nation has a claim. When a sovereign breaks his treaties, or refuses to fulfil them, this does not immediately imply that he considers them as empty names, and that he disregards the faith of treaties: he may have good reasons for thinking himself liberated from his engagements; and other sovereigns have not a right to judge him. It is the sovereign who violates his engagements on pretences that are evidently frivolous, or who does not even think it worth his while to allege any pretence whatever, to give a colourable gloss to his conduct, and cast a veil over his want of faith, it is such a sovereign who deserves to be treated as an enemy to the human race.
In treating of religion, in the first book of this work, we could not avoid giving several instances of the enormous abuses which the popes formerly made of their authority. There was one in particular, which was equally injurious to all states, and subversive of the law of nations. Several popes have undertaken to break the treaties of sovereigns; they carried their daring audacity so far as to release a contracting power from his engagements, and to absolve him from the oaths by which he had confirmed them. Cesarini, legate of pope Eugenius the Fourth, wishing to break the treaty which Uladislaus, king of Poland and Hungary, had concluded with the sultan Amurath, pronounced, in the pope's name, the king's absolution from his oaths.2 In those times of ignorance, people thought themselves really bound by nothing but their oaths, and they attributed to the pope the power of absolving them from oaths of every kind. Uladislaus renewed hostilities against the Turks: but that prince, in other respects worthy of a better fate, paid dearly for perfidy, or rather for his superstitious weakness: he perished, with his army, near Varna; a loss which was fatal to Christendom, and brought on her by her spiritual head. The following epitaph was written on Uladislaus:
Romulidζ Cannas, ego Varnam clade notavi.
Discite, mortales, non temerare fidem.
Me nisi pontifices jussissent rumpere foedus,
Non ferret Scythicum Pannonis ora jugum.
Pope John XII. declared null the oath which the emperor Louis of Bavaria, and his competitor Frederic of Austria, had mutually taken when the emperor set the latter at liberty. Philip, duke of Burgundy, abandoning the alliance of the English, procured from the pope and the council of Basil an absolution from his oath. And at a time when the revival of letters, and the establishment of the Reformation should have rendered the popes more circumspect, the legate Caraffa, in order to induce Henry II. of France to a renewal of hostilities, had the audacity to absolve him, in 1556, from the oath he had made to observe the truce of Vaucelles.3 The famous peace of Westphalia displeasing the pope on many accounts, he did not confine himself to protesting against the articles of a treaty in which all Europe was interested: he published a bull, in which, from his own certain knowledge, and full ecclesiastical power, he declared several articles of the treaty null, vain, invalid, iniquitous, unjust, condemned, reprobated, frivolous, void of force and effect; and that nobody was bound to observe them or any of them, though they were confirmed by oath. Nor was this all: his holiness, assuming the tone of an absolute master, proceeds thus And, nevertheless, for the greater precaution, and as much as need be, from the same motions, knowledge, deliberations, and plenitude of power, we condemn, reprobate, break, annul, and deprive of ail force and effect, the said articles, and all the other things prejudicial to the above, &c.4 Who does not see that these daring acts of the popes, which were formerly very frequent, were violations of the law of nations, and directly tended to destroy all the bands that could unite mankind, and to sap the foundations of their tranquillity, or to render the pope sole arbiter of their affairs?
But who can restrain his indignation at seeing this strange abuse authorized by princes themselves? In the treaty concluded at Vincennes, between Charles V. king of France, and Robert Stuart, king of Scotland, in 1371, it was agreed that the pope should absolve the Scots from all the oaths they had taken in swearing to a truce with the English, and that he should promise never to absolve the French or Scots from the oaths they were about to make in swearing to the new treaty.
The custom generally received in former times, of swearing to the observance of treaties, had furnished the popes with a pretext for claiming the power of breaking them, by absolving the contracting parties from their oaths. But, in the present day, even children know that an oath does not constitute the obligation to keep a promise or a treaty: it only gives an additional strength to that obligation by calling God to bear witness. A man of sense, a man of honour, does not think
himself less bound by his word alone, by his faith once pledged, than if he had added the sanction of an oath. Cicero would not have us to make much difference between a perjurer and a liar. "The habit of lying (says that great man) paves the way to perjury. Whoever can be prevailed on to utter a falsehood, may be easily won over to commit perjury: for the man who has once deviated from the line of truth, generally feels as little scruple in consenting to a perjury as to a lie. For, what influence can the invocation of the gods have on the mind of him who is deaf to the voice of conscience? The same punishment, therefore, which heaven has ordained for the perjurer, awaits also the liar: for it is not on account of the formula of words in which the oath is couched, but of the perfidy and villainy displayed by the perjurer in plotting harm against his neighbour, that the anger and indignation of the gods is roused."
The oath does not then produce a new obligation: it only gives additional force to the obligation imposed by the treaty, and in every thing shares the same fate with it. Where the treaty is of its own nature valid and obligatory, the oath (in itself a supererogatory obligation) is so too: but, where the treaty is void, the oath is void likewise.
The oath is a personal act: it can therefore only regard the person of him who swears, whether he swears himself, or deputes another to swear in his name. However, as this act does not produce a new obligation, it makes no change in the nature of a treaty. Thus, an alliance confirmed by oath is so confirmed only with respect to him who has contracted it: but if it be a real alliance, it survives him, and passes to his successors as an alliance not confirmed by oath.
For the same reason, since the oath can impose no other obligation than that which results from the treaty itself, it gives no pre-eminence to one treaty, to the prejudice of those that are not sworn to. And as, in case of two treaties clashing with each other, the more ancient ally is to be preferred (§ 167); the same rule should be observed, even though the more recent treaty has been confirmed by an oath. In the same manner, since it is not allowable to engage in treaties inconsistent with existing ones (§ 165), the circumstance of an oath will not justify such treaties, nor give them sufficient validity to supersede those which are incompatible with them: if it had such an effect, this would be a convenient mode for princes to rid themselves of their engagements.
Thus also an oath cannot give validity to a treaty that is of its own nature invalid, justify a treaty which is in itself unjust, or impose any obligation to fulfil a treaty, however lawfully concluded, when an occasion occurs in which the observance of it would be unlawful, as for instance, if the ally to whom succours have been promised undertakes a war that is manifestly unjust. In short, every treaty made for a dishonourable purpose (§ 161), every treaty prejudicial to the state (§ 160), or contrary to her fundamental laws (Book I. § 265), being in its own nature void, the oath that may have been added to such a treaty is void likewise, and falls to the ground together with the covenant which it was intended to confirm.
The asseverations used in entering into engagements are forms of expression intended to give the greater force to promises. Thus, kings promise in the most sacred manner, with good faith, solemnly, irrevocably, and engage their royal word, &c. A man of honour thinks himself sufficiently bound by his word alone: yet these asseverations are not useless, inasmuch as they tend to prove that the contracting parties form their engagements deliberately, and with a knowledge of what they are about. Hence, consequently the violation of such engagements become the more disgraceful. With mankind, whose faith is so uncertain, every circumstance is to be turned to advantage: and since the sense of shame operates more powerfully on their minds that the sentiment of duty, it would be imprudent to neglect this method.
After what we have said above (§ 162), it were unnecessary to undertake in this place to prove that the faith of treaties has no relation to the difference of religion, and cannot in any manner depend upon it. The monstrous maxim, that no faith is to be kept with heretics, might formerly raise its head amidst the madness of party and the fury of superstition: but it is at present detested.
If the security of him who stipulates for anything in his own favour prompts him to require precision, fulness, and the greatest clearness in the expressions, good faith demands, on the other hand, that each party should express his promises clearly, and without the least ambiguity. The faith of treaties is basely prostituted by studying to couch them in vague or equivocal terms, to introduce ambiguous expressions, to reserve subjects of dispute, to overreach those with whom we treat, and outdo them in cunning and duplicity. Let the man who excels in these arts boast of his happy talents, and esteem himself a keen negotiator, but reason and the sacred law of nature will class him as far beneath a vulgar cheat as the majesty of kings is exalted above private persons. True diplomatic skill consists in guarding against imposition, not in practising it.
Subterfuges in a treaty are not less contrary to good faith. His catholic Majesty, Ferdinand, having concluded a treaty with the archduke his son-in-law, thought he could evade it by privately protesting against the treaty: a puerile finesse! which, without giving any right to that prince, only exposed his weakness and duplicity.
The rules that establish a lawful interpretation of treaties are sufficiently important to be made the subject of a distinct chapter. For the present, let us simply observe that an evidently false interpretation is the grossest imaginable violation of the faith of treaties. He that resorts to such an expedient either impudently sports with that sacred faith, or sufficiently evinces his inward conviction of the degree of moral turpitude annexed to the violation of it: he wishes to act a dishonest part, and yet preserve the character of an honest man: he is a puritanical impostor, who aggravates his crime by the addition of a detestable hypocrisy. Grotius quotes several instances of evidently false interpretations put upon treaties: The Plateans, having promised the Thebans to restore their prisoners, restored them after they had put them to death. Pericles, having promised to spare the lives of such of the enemy as laid down their arms, ordered all those to be killed who had iron clasps to their cloaks. A Roman general, having agreed with Antiochus to restore him half of his fleet, caused each of the ships to be sawed in two. All these interpretations are as fraudulent as that of Rhadamistus, who, according to Tacitus's account,10 having sworn to Mithridates that he would not employ either poison or the steel against him, caused him to be smothered under a heap of clothes.
Our faith may be tacitly pledged, as well as expressly: it is sufficient that it be pledged, in order to become obligatory; the manner can make no difference in the case. The tacit pleading of faith is founded on a tacit consent; and a tacit consent is that which, is, by fair deduction, inferred from our actions. Thus, as Grotius observes, whatever is included in the nature of certain acts which are agreed upon, it is tacitly comprehended in the agreement: or, in other words, every thing which is indispensably necessary to give effect to the articles agreed on, is tacitly granted. If, for instance, a promise is made to a hostile army who have advanced far into the country, that they shall be allowed to return home in safety, it is manifest that they cannot be refused provisions; for they cannot return without them. In the same manner, in demanding or accepting an interview, full security is tacitly promised, Livy justly says, that the Gallo-Greeks violated the law of nations in attacking the consul Manlius at the time when he was repairing to the place of interview to which they had invited him. The emperor Valerian, having been defeated by Sapor, King of Persia, sent to him to sue for peace. Sapor declared that he wished to treat with the emperor in person; and Valerian, having consented to the interview without any suspicion of fraud, was carried off by the perfidious enemy, who kept him a prisoner till his death, and treated him with the most brutal cruelty.
Grotius, in treating of tacit conventions, speaks of those in which the parties pledge their faith by mute signs. But we ought not to confound these two kinds of tacit conventions: for that consent which is sufficiently notified by a sign, is an express consent, as clearly as if it had been signified by the voice. Words themselves are but signs established by custom: and there are mute signs which established custom renders as clear as express as words. Thus, at the present day, by displaying a white flag, a parley is demanded, as expressly as it could be done by the use of speech. Security is tacitly promised to the enemy who advances upon this invitation.
CONVINCED by unhappy experience, that the faith of treaties, sacred and inviolable as it ought to be, does not always afford a sufficient assurance that they shall be punctually observed, mankind have sought for securities against perfidy, for methods, whose efficacy should not depend on the good faith of the contracting parties. A guaranty is one of these means. When those who make a treaty of peace, or any other treaty, are not perfectly easy with respect to its observance, they require the guaranty of a powerful sovereign. The guarantee promises to maintain the conditions of the treaty, and to cause it to be observed. As he may find himself obliged to make use of force against the party who attempts to violate his promises, it is an engagement that no sovereign ought to enter into lightly, and without good reason. Princes indeed seldom enter into it unless when they have an indirect interest in the observance of the treaty, or are induced by particular relations of friendship. The guaranty may be promised equally to all the contracting parties, to some of them, or even to one alone; but it is commonly promised to all in general. It may also happen, when several sovereigns enter into a common alliance, that they all reciprocally pledge themselves to each other as guarantees for its observance. The guaranty is a kind of treaty, by which assistance and sucours are promised to any one, in case he has need of them, in order to compel a faithless ally to fulfil his engagements.
Guaranty being given in favour of the contracting powers, or one of them, it does not authorize the guarantee to interfere in the execution of the treaty, or to enforce the observance of it, unasked, and of his own accord. If, by mutual consent, the parties think proper to deviate from the tenor of the treaty, to alter some of the articles, or to cancel it altogether, or if one party be willing to favour the other by a relaxation of any claim, they have a right to do this and the guarantee cannot oppose it. Simply bound by his promise to support the party who should have reason to complain of the infraction of the treaty, he has acquired no rights for himself. The treaty was not made for him; for, had that been the case, he would have been concerned, not merely as a guarantee, but as a principal in the contract. This observation is of great importance: for care should be taken, lest, under colour of being a guarantee, a powerful sovereign should render himself the arbiter of the affairs of his neighbours, and pretend to give them law.
But it is true, that, if the parties make any change in the articles of the treaty without the consent and concurrence of the guarantee, the latter is no longer bound to adhere to the guaranty; for the treaty thus changed is no longer that which he guarantied.
As no nation is obliged to do any thing for another nation, which that other is herself capable of doing, it naturally follows that the guarantee is not bound to give his assistance except where the party to whom he has granted his guaranty is of himself unable to obtain justice.
If there arises any dispute between the contracting parties respecting the sense of any article of the treaty, the guarantee is not immediately obliged to assist him in favour of whom he has given his guaranty. As he cannot engage to support injustice, he is to examine, and to scarch for the true sense of the treaty, to weigh the pretensions of him who claims his guaranty; and, if he finds them ill founded, he may refuse to support them, without failing in his engagements.
It is no less evident that the guaranty cannot impair the rights of any one who is not a party to the treaty. If, therefore, it happens that the guarantied treaty proves derogatory to the rights of those who are not concerned in it, the treaty being unjust in this point, the guarantee is in no wise bound to procure the performance of it; for, as we have shown above, he can never have incurred an obligation to support injustice. This was the reason alleged by France, when, notwithstanding her having guarantied the famous pragmatic sanction of Charles VI., she declared for the house of Bavaria, in opposition to the heiress of that emperor. This reason is incontestably a good one, in the general view of it: and the only question to be decided at that time was, whether the court of France made a just application of it.
Non nostrum vos tantas componere lites.
I shall observe on this occasion, that, according to common usage, the term guaranty is often taken in a sense somewhat different from that we have given to it. For instance, most of the powers of Europe guarantied the act by which Charles VI, had regulated the succession to his dominions; sovereigns sometimes reciprocally guaranty their respective states. But we should rather denominate those transactions treaties of alliance, for the purpose, in the former case, of maintaining that rule of succession. and, in the latter, of supporting the possession of those states.
The guaranty naturally subsists as long as the treaty that is the object of it; and, in case of doubt, this ought always to be presumed, since it is required, and given, for the security of the treaty. But there is no reason which can naturally prevent its limitation to a certain period, to the lives of the contracting powers, to that of the guarantee, &c. In a word, whatever we have said of treaties in general is equally applicable to a treaty of guaranty.
When there is question of things which another may do or give as well as he who promises, as, for instance, the payment of a sum of money, it is safer to demand a security than a guaranty: for the surety is bound to make good the promise in default of the principal, whereas the guarantee is only obliged to use his best endeavours to obtain a performance of the promise from him who has made it.
A nation may put some of her possessions into the hands of another, for the security of her promises, debts, or engagements. If she thus deposits movable property, she gives pledges. Poland formerly pledged a crown and other jewels to the sovereigns of Prussia. But sometimes towns and provinces are given in pawn. If they are only pledged by a deed which assigns them as security for a debt, they serve as a mortgage: if they are actually put into the hands of the creditor, or of him with whom the affair has been transacted, he holds them as pledges: and, if the revenues are ceded to him as an equivalent for the interest of the debt, the transaction is called a compact of antichresis.
The right which the possession of a town or province confers upon him who holds it in pledge, extends no further than to secure the payment of what is due to him, or the performance of the promise that has been made to him. He may therefore retain the town or the province in his hands, till he is satisfied: but he has no right to make any change in it; for that town, or that country, does not belong to him as proprietor. He cannot even interfere in the government of it, beyond what is required for his own security, unless the empire, or the exercise of sovereignty, has been expressly made over to him. This last point is not naturally to be presumed, since it is sufficient for the security of the mortgagee, that the country is put into his hands and under his power. Further, he is obliged, like every other person who has received a pledge, to preserve the country he holds as a security, and, as far as in his power, to prevent its suffering any damage or dilapidation: he is responsible for it; and if the country is ruined through his fault, he is bound to indemnify the state that intrusted himwith the possession of it. If the sovereignty is deposited in his hands together with the country itself, he ought to govern it according to its constitution and precisely in the same manner as the sovereign of the country was obliged to govern it; for the latter could only pledge his lawful right.
As soon as the debt is paid, or the treaty is fulfilled, the term of the security expires, and he who holds a town or a province by this title is bound to restore it faithfully, in the same state in which he received it, so far as this depends on him.
But to those who have no law but their avarice, or their ambition who, like Achilles, place all their right in the point of their sword a tempting allurement now presents itself: they have recourse to a thousand quibbles, a thousand pretences, to retain an important place, or a country which is conveniently situated for their purposes. The subject is too odious for us to allege examples: they are well enough known, and sufficiently numeorus to convince every sensible nation, that it is very imprudent to make over such securities.
But if the debt be not paid at the appointed time, or if the treaty be not fulfilled, what has been given in security may be retained and appropriated, or the mortgage seized, at least until the debt is discharged, or a just compensation made.
The house of Savoy had mortgaged the country of Faud to the cantons of Bern and Fribourg; and those two cantons, finding that no payments were made, had recourse to arms, and took possession of the country. The duke of Savoy, instead of immediately satisfying their just demands, opposed force to force, and gave them still further grounds of complaint: wherefore the cantons, finally successful in the contest, have since retained possession of that fine country, as well for the payment of the debt, as to defray the expenses of the war, and to obtain a just indemnification.
Finally, there is, in the way of security, another precaution, of very ancient institution, and much used among nations which is, to require hostages. These are persons of consequence, delivered up by the promising party, to him with whom he enters into an engagement, to be detained by the latter until the performance of the promises which are made to him. In this case, as well as in those above mentioned, the transaction is a pignorary contract, in which free men are delivered up, instead of towns, countries, or jewels. With respect to this contract, therefore, we may confine ourselves to those particular observations which the difference of the things pledged renders necessary.
The sovereign who receives hostages has no other right over them than that of securing their persons, in order to detain them till the entire accomplishment of the promises of which they are the pledge. He may therefore take precautions to prevent their escaping from him: but those precautions should be moderated by humanity towards men whom he has no right to use ill; and they ought not to be extended beyond what prudence requires.
It is pleasing to behold the European nations in the present age content themselves with the bare parol of their hostages. The English noblemen who were sent to France in that character, in pursuance of the treaty of Aix-la-Chapelle, in 1748, to stay till the restitution of Cape Breton, were solely bound by their word of honour, and lived at court, and at Paris, rather as ministers of their nation than as hostages.
The liberty of the hostages is the only thing pledged: and if he who has given them breaks his promise, they may be detained in captivity. Formerly they were in such cases put to death; an inhuman cruelly, founded on an error. It was imagined that the sovereign might arbitrarily dispose of the lives of his subjects, or that every man was the master of his own life, and had a right to stake it as a pledge when he delivered himself up as hostage.
As soon as the engagements are fulfilled, the cause for which the hostages were delivered no longer subsists: they then immediately become free, and ought to be restored without delay. They ought also to be restored, if the reason for which they were demanded does not take place: to detain them then would be to abuse the sacred faith upon which they are delivered. The perfidious Christiern II., king of Denmark, being delayed by contrary winds before Stockholm, and, together with his whole fleet, ready to perish with famine, made proposals of peace: whereupon, the adminstrator, Steno, imprudently trusting to his promises, furnished the Danes with provisions, and even gave Gustavus and six other noblemen as hostages for the safety of the king, who pretended to have a desire to come on shore: but, with the first fair wind, Christiern weighed anchor, and carried off the hostages; thus repaying the generosity of his enemy by an infamous act of treachery.
Hostages being delivered on the faith of treaties, and he who receives them promising to restore them as soon as the promise of which they are the surety shall be fulfilled, such engagements ought to be literally accomplished: and the hostages should be really and faithfully restored to their former condition, as soon as the accomplishment of the promise has disengaged them. It is, therefore, not allowable to detain them for any other cause; and I am astonished to find that some learned writers teach a contrary doctrine. They ground their opinion upon the principle which authorizes a sovereign to seize and detain the subjects of another state in order to compel their rulers to do him justice. The principle is true; but the application is not just. These authors seemed to have overlooked the circumstance, that, were it not for the faith of the treaty by virtue of which the hostage has been delivered, he would not be in the power of that sovereign, nor exposed to be so easily seized; and that the faith of such a treaty does not allow the sovereign to make any other use of his hostage than that for which he was intended, or take advantage of his detention beyond what has been expressly stipulated. The hostage is delivered for the security of a promise, and for that alone. As soon, therefore, as the promise is fulfilled, the hostage, as we have just observed, ought to be restored to his former condition. To tell him that he is released as a hostage, but detained as a pledge for the security of any other pretension, would be taking advantage of his situation as a hostage, in evident violation of the spirit and even the letter of the convention, according to which, as soon as the promise is accomplished, the hostage is to be restored to himself and his country, and reinstated in his pristine rank, as if he had never been a hostage. Without a rigid adherence to this principle, it would no longer be safe to give hostages, since princes might, on every occasion, easily devise some pretext for detaining them. Albert the Wise, duke of Austria, making war against the city of Zurich, in the year 1353, the two parties referred the decision of their disputes to arbitrators, and Zurich gave hostages. The arbitrators passed an unjust sentence, dictated by partiality. Zurich, nevertheless, after having made a well-grounded complaint on the subject, determined to submit to their decision. But the duke formed new pretensions, and detained the hostages, contrary to the faith of the compromise, and in evident contempt of the law of nations.
But a hostage may be detained for his own actions, for crimes committed, or debts contracted in the country while he is in hostage there. This is no violation of the faith of the treaty. In order to be sure of recovering his liberty, according to the terms of the treaty, the hostage must not claim a right to commit, with impunity, any outrages against the nation by which he is kept; and when he is about to depart, it is just that he should pay his debts.
It is the party who gives the hostages that is to provide for their support; for, it is by his order, and for his service, that they are in hostage. He who receives them for his own security is not bound to defray the expense of their subsistence, but simply that of their custody, if he thinks proper to set a guard over them.
The sovereign may dispose of his subjects for the service of the state; he may, therefore, give them also as hostages; and the person who is nominated for that purpose is bound to obey, as he is, on every other occasion, when commanded for the service of his country. But, as the expenses ought to be borne equally by the citizens, the hostage is entitled to be defrayed and indemnified at the public charge.
It is, evidently, a subject alone who can be given as a hostage against his will. With a vassal, the case is otherwise. What he owes to the sovereign, is determined by the conditions of his fief; and he is bound to nothing more. Accordingly, it is a decided point that a vassal cannot be constrained to go as a hostage, unless he be at the same time a subject.
Whoever has a power to make treaties or conventions, may give and receive hostages. For this reason, not only the sovereign, but also the subordinate authorities, have a right to give hostages in the agreements they make, according to the powers annexed to their office, and the extent of their commission. The governor of a town, and the besieging general, give and receive hostages for the security of the capitulation: whoever is under their command is bound to obey, if he is nominated for that purpose.
Hostages ought naturally to be persons of consequence, since they are required as a security. Persons of mean condition would furnish but a feeble security, unless they were given in great numbers. Care is commonly taken to settle the rank of the hostages that are to be delivered; and the violation of a compact in this particular is a flagrant dereliction of good faith and honour. It was a shameful act of perfidy in La Trimouille to give the Swiss only hostages from the dregs of the people, instead of four of the principal citizens of Dijon, as had been stipulated in the famous treaty we mentioned above (§ 212). Sometimes the principal persons of the state, and even princes, are given in hostage, Francis I. gave his own sons as security for the treaty of Madrid.
The sovereign who gives hostages ought to act ingenuously in the affair, giving them in reality as pledges of his word, and, consequently, with the intention that they should be kept till the entire accomplishment of his promise. He cannot, therefore, approve of their making their escape: and, if they take such a step, so far from harbouring them, he is bound to send them back. The hostage, on his side, conformably to the presumed intention of his sovereign, ought faithfully to remain with him to whom he is delivered, without endeavouring to escape. Cllia made her escape from the hands of Porsenna, to whom she had been delivered as a hostage; but the Romans sent her back, that they might not incur the guilt of violating the treaty.
If the hostage happens to die, he who has given him is not obliged to replace him, unless this was made a part of the agreement. The hostage was a security required of him: that security is lost without any fault on his side; and there exists no reason why he should be obliged to give another.
If any one substitutes himself for a time in the place of a hostage, and the hostage happens in the interim to die a natural death, the substitute is free: for, in this case, things are to be replaced in the same situation in which they would have been if the hostage had not been permitted to absent himself and substitute another in his stead: and, for the same reason, the hostage is not free by the death of him who has taken his place only for a time. It would be quite the contrary, if the hostage had been exchanged for another: the former would be absolutely free from all engagement; and the person who had taken his place would alone be bound.
If a prince who has been given in hostage succeeds to the crown, he ought to be released on the delivery of another sufficient hostage, or a number of others, who shall together constitute an aggregate security equivalent to that which he himself afforded when he was originally given. This is evident from the treaty itself, which did not import that the king should be a hostage. The detention of the king's person by a foreign power is a thing of too interesting a nature to admit a presumption that the state had intended to expose herself to the consequences of such an event. Good faith ought to preside in all conventions; and the manifest or justly presumed intention of the contracting parties ought to be adhered to. If Francis I. had died after having given his sons as hostages, certainly the dauphin should have been released: for, he had been delivered only with a view of restoring the king to his kingdom; and, if the emperor had detained him, that view would have been frustrated, since the king of France would still have been a captive. It is evident, that, in this reasoning, I proceed on the supposition that no violation of the treaty has taken place on the part of the state which has given a prince in hostage. In case that state had broken its promise, advantage might reasonably be taken of an event which rendered the hostage still more valuable, and his release the more necessary.
The liability of a hostage, as that of a city or a country, expires with the treaty which it was intended to secure (§§ 243, 248): and consequently, if the treaty is personal, the hostage is free at the moment when one of the contracting powers happens to die.
The sovereign who breaks his word after having given hostages, does an injury, not only to the other contracting power, but also to the hostages themselves. For, though subjects are indeed bound to obey their sovereign who gives them in hostage, that sovereign has not a right wantonly to sacrifice their liberty, and expose their lives to danger without just reasons. Delivered up as a security for their sovereign's promise, not for the purpose of suffering any harm, if he entails misfortune on them by violating his faith, he covers himself with double infamy. Pawns and mortgages serve as securities for what is due; and their acquisition indemnifies the part to whom the other fails in his engagements. Hostages are rather pledges of the faith of him who gives them; and it is supposed that he would abhor the idea of sacrificing innocent persons. But, if particular conjunctures oblige a sovereign to abandon the hostages, if, for example, the party who has received them violates his engagements in the first instance, and, in consequence of his violation, the treaty can no longer be accomplished without exposing the state to danger, no measure should be left untried for the delivery of those unfortunate hostages; and the state cannot refuse to compensate them for their sufferings, and to make them amends, either in their own persons, or in those of their relatives.
At the moment when the sovereign who has given the hostage has violated his faith, the latter ceases to retain the character of a hostage, and becomes a prisoner to the party who had received him, and who has now a right to detain him in perpetual captivity. But it becomes a generous prince to refrain from an exertion of his rights at the expense of an innocent individual. And as the hostage is no longer bound by any tie to his own sovereign who has perfidiously abandoned him, if he chooses to transfer his allegiance to the prince who is now the arbiter of his fate, the latter may acquire a useful subject, instead of a wretched prisoner, the troublesome object of his commiseration. Or he may liberate and dismiss him, on settling with him the conditions.
We have already observed that the life of a hostage cannot be lawfully taken away on account of the perfidy of the party who has delivered him. The custom of nations, the most constant practice, cannot justify such an instance of barbarous cruelty, repugnant to the law of nature. Even at a time when that dreadful custom was but too much authorized, the great Scipio publicly declared that he would not suffer his vengeance to fall on innocent hostages, but on the persons themselves who had incurred the guilt of perfidy, and that he was incapable of punishing any but armed enemies. The emperor Julian made the same declaration. All that such a custom can produce, is impunity among the nations who practice it. Whoever is guilty of it cannot complain that another is so too: but every nation may and ought to declare that she considers the action as a barbarity injurious to human nature.
IF the ideas of men were always distinct and perfectly determinate, if, for the expression of those ideas, they had none but proper words, no terms but such as were clear, precise, and susceptible only of one sense, there would never be any difficulty in discovering their meaning in the words by which they intended to express it: nothing more would be necessary than to understand the language. But, even on this supposition, the art of interpretation would still not be useless. In concessions, conventions, and treaties, in all contracts, as well as in the laws, it is impossible to foresee and point out all the particular cases that may arise; we decree, we ordain, we agree upon certain things, and express them in general terms; and, though all the expressions of a treaty should be perfectly clear, plain, and determinate, the true interpretation would still consist in making, in all the particular cases that present themselves, a just application of what has been decreed in a general manner. But thus is not all: conjectures vary, and produce new kinds of cases, that cannot be brought within the terms of the treaty or the law, except by inferences drawn from the general views of the contracting parties, or of the legislature. Between different clauses, there will be found contradictions and inconsistencies, real or apparent; and the question is, to reconcile such clauses, and point out the path to be pursued. But the case is much worse if we consider that fraud seeks to take advantage even of the imperfection of language, and that men designedly throw obscurity and ambiguity into their treaties, in order to be provided with a pretence for eluding them upon occasion. It is therefore necessary to establish rules founded on reason, and authorized by the law of nature, capable of diffusing light over what is obscure, of determining what is uncertain, and of frustrating the views of him who acts with duplicity in forming the compact. Let us begin with those that tend particularly to this last end, with those maxims of justice and equity which are calculated to repress fraud, and to prevent the effect of its artifices.
The first general maxim of interpretation is, that It is not allowable to interpret what has no need of interpretation. When a deed is worded in clear and precise terms, when its meaning is evident, and leads to no absurd conclusion, there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures, in order to restrict or extend it, is but an attempt to elude it. If this dangerous method be once admitted, there will be no deed which it will not render useless. However luminous each clause may be, however clear and precise the terms in which the deed is couched, all this will be of no avail, if it be allowed to go in quest of extraneous arguments, to prove that it is not to be understood in the sense which it naturally presents.
Those cavillers who dispute the sense of a clear and determinate article, are accustomed to seek their frivolous subterfuges in the pretended intentions and views which they attribute to its author. It would be very often dangerous to enter with them into the discussion of those supposed views that are not pointed out in the piece itself. The following rule is better calculated to foil such cavillers, and will at once cut short all chicanery: If he who could and ought to have explained himself clearly and fully has not done it, it is the worse for him: he cannot be allowed to introduce subsequent restrictions which he has not expressed. This is a maxim of the Roman law: Pactionem obscuram iis nocere in quorum fuit potestate legem apertius conscribere.2 The equity of this rule is glaringly obvious, and its necessity is not less evident. There will be no security in conventions, no stability in grants or concessions, if they may be rendered nugatory by subsequent limitations, which ought to have been originally specified in the deed, if they were in the contemplation of the contracting parties.
The third general maxim or principle on the subject of interpretation is, that Neither the one nor the other of the parties interested in the contract has a right to interpret the deed or treaty according to his own fancy. For if you are at liberty to affix whatever meaning you please to my promise, you will have the power of obliging me to do whatever you choose, contrary to my intention, and beyond my real engagements: and, on the other hand, if I am allowed to explain my promises as I please, I may render them vain and illusory, by giving them a meaning quite different from that which they presented to you, and in which you must have understood them at the time of your accepting them.
On every occasion when a person could and ought to have made known his intention, we assume for true against him what he has sufficiently declared. This is an incontestable principle, applied to treaties: for, if they are not a vain play of words, the contracting parties ought to express themselves in them with truth, and according to their real intentions. If the intention which is sufficiently declared were not to be taken of course as the true intention of him who speaks and enters into engagements, it would be perfectly useless to form contracts or treaties.
But it is here asked, which of the contracting parties ought to have his expressions considered as the more decisive, with respect to the true meaning of the contract, whether we should lay a greater stress on the words of him who makes the promise, than on those of the party who stipulates for its performance. As the force and obligation of every contract arise from a perfect promise, and the person who makes the promise is no further engaged than his will is sufficiently declared, it is very certain, that, in order to discover the true meaning of the contract, attention ought principally to be paid to the words of the promising party. For, he voluntarily binds himself by his words; and we take for true against him what he has sufficiently declared. This question seems to have originated from the manner in which conventions are sometimes made: the one party offers the conditions, and the other accepts them; that is to say, the former proposes what he requires that the other shall oblige himself to perform, and the latter declares the obligations into which he really enters. If the words of him who accepts the conditions bear relation to the words of him who offers them, it is certainly true that we ought to lay our principal stress on the expressions of the latter: but this is because the person promising is considered as merely repeating them in order to form his promise. The capitulations of besieged towns may here serve us for an example. The besieged party proposes the conditions on which he is willing to surrender the place: the besieger accepts them: the expressions of the former lay no obligation on the latter, unless so far as he adopts them. He who accepts the conditions is in reality the promising party; and it is in his words that we ought to seek for the true meaning of the articles, whether he has himself chosen and formed his expressions, or adopted those of the other party, by referring to them in his promise. But still we must bear in mind the maxim above laid down, viz., that what he has sufficiently declared is to be taken as true against him. I proceed to explain myself more particularly on this subject.
In the interpretation of a treaty, or of any other deed whatsoever, the question is, to discover what the contracting parties have agreed upon, to determine precisely, on any particular occasion, what has been promised and accepted, that is to say, not only what one of the parties intended to promise, but also what the other must reasonably and candidly have supposed to be promised to him, what has been sufficiently declared to him, and what must have influenced him in his acceptance. Every deed, therefore, and every treaty, must be interpreted by certain fixed rules calculated to determine its meaning, as naturally understood by the parties concerned at the time when the deed was drawn up and accepted. This is a fifth principle.
As these rules are founded on right reason, and are consequently approved and prescribed by the law of nature, every man, every sovereign, is obliged to admit and to follow them. Unless certain rules be admitted for determining the sense in which the expressions are to be taken, treaties will be only empty words; nothing can be agreed upon with security, and it will be almost ridiculous to place any dependence on the effect of conventions.
But, as sovereigns acknowledge no common judge, no superior that can oblige them to adopt an interpretation founded on just rules, the faith of treaties constitutes in this respect all the security of the contracting powers. That faith is no less violated by a refusal to admit an evidently fair interpretation, than by an open infraction. It is the same injustice, the same want of good faith; nor is its turpitude rendered less odious by being choked up in the subtleties of fraud.
Let us now enter into the particular rules on which the interpretation ought to be formed, in order to be just and fair. Since the sole object of the lawful interpretation of a deed ought to be the discovery of the thoughts of the author or authors of that deed, Whenever we meet with any obscurity in it, we are to consider what probably were the ideas of those who drew up the deed, and to interpret it accordingly. This is the general rule for all interpretations. It particularly serves to ascertain the meaning of particular expressions whose signification is not sufficiently determinate. Pursuant to this rule, we should take those expressions in their utmost latitude when it seems probable that the person speaking had in contemplation every thing which, in that extensive sense, they are capable of designating: and, on the other hand, we ought to restrict their meaning, if the author appears to have confined his idea to what they comprehend in their more limited signification. Let us suppose that a husband has bequeathed to his wife all his money. It is required to know whether this expression means only his ready money, or whether it extends also to that which is lent out, and is due on notes and other securities. If the wife is poor, if she was beloved by her husband, if the amount of the ready money be inconsiderable, and the value of the other property greatly superior to that of the money both in specie and in paper, there is every reason to presume that the husband meant to bequeath to her as well the money due to him as that actually contained in his coffers. On the other hand if the woman be rich, if the amount of the ready specie be very considerable, and the money due greatly exceeds in value all the other property, the probability is, that the husband meant to bequeath to his wife his ready money only.
By the same rule, we are to interpret a clause in the utmost latitude that the strict and appropriate meaning of the words will admit, if it appears that the author had in view every thing which that strict and appropriate meaning comprehends: but we must interpret it in a more limited sense when it appears probable that the author of the clause did not mean to extend it to every thing which the strict propriety of the terms might be made to include. As, for instance, a father, who has an only son, bequeaths to the daughter of his friend all his jewels. He has a sword enriched with diamonds, given him by a sovereign prince. In this case it is certainly very improbable that the testator had any intention of making over that honorable badge of distinction to a family of aliens. That sword, therefore, together with the jewels with which it is ornamented, must be excepted from the legacy, and the meaning of the words be restricted to his other jewels. But, if the testator has neither son nor heir of his own name, and bequeaths his property to a stranger, there is no reason to limit the signification of the terms: they should be taken in their full import, it being probable that the testator used them in that sense.
The contracting parties are obliged to express themselves in such manner that they may mutually understand each other. This is evident from the very nature of the transaction. Those who form the contract concur in the same intentions; they agree in desiring the same thing;
and how shall they agree in this instance, if they do not perfectly understand each other? Without this, their contract will be no better than a mockery or a snare. If, then, they ought to speak in such a manner as to be understood, it is necessary that they should employ the words in their proper signification, the signification which common usage has affixed to them, and that they annex an established meaning to every term, every expression they make use of. They must not, designedly and without mentioning it, deviate from the common usage and the appropriate meaning of words: and it is presumed that they have conformed to established custom in this particular, as long as no cogent reasons can be adduced to authorize a presumption to the contrary; for, the presumption is, in general, that things have been done as they ought. From all these incontestable truths, results this rule: In the interpretation of treaties, compacts, and promises, we ought not to deviate from the common use of the language, unless we have very strong reasons for it. In all human affairs, where absolute certainty is not at hand to point out the way, we must take probability for our guide. In most cases, it is extremely probable that the parties have expressed themselves conformably to the established usage: and such probability ever affords a strong presumption, which cannot be overruled but by a still stronger presumption to the contrary. Camden3 gives us a treaty, in which it is expressly said that the treaty shall be precisely understood according to the force and appropriate signification of the terms. After such a clause, we cannot, under any pretence, deviate from the proper meaning which custom has affixed to the terms, the will of the contracting parties being thereby formally declared in the most unambiguous manner.
The usage we here speak of is that of the time when the treaty, or the deed, of whatever kind, was drawn up and concluded. Languages incessantly vary, and the signification and force of words change with time. When, therefore, an ancient deed is to be interpreted, we should be acquainted with the common use of the terms at the time when it was written; and that knowledge is to be acquired from deeds of the same period, and from contemporary writers, by diligently comparing them with each other. This is the only source from which to derive any information that can be depended on. The use of the vulgar languages being, as every one knows, very arbitrary, etymological and grammatical investigations, pursued with a view to discover the true import of a word in common usage, would furnish but a vain theory, equally useless and destitute of proof.
Words are only designed to express the thoughts: thus, the true signification of an expression in common use is the idea which custom has affixed to that expression. It is then a gross quibble to affix a particular sense to a word, in order to elude the true sense of the entire expression. Mahomet, emperor of the Turks, at the taking of Negropont, having promised a man to spare his head, caused him to be cut in two through the middle of the body. Tamerlane, after having engaged the city of Sebastia to capitulate, under his promise of shedding no blood, caused all the soldiers of the garrison to be buried alive: gross subterfuges which, as Cicero remarks, only serve to aggravate the guilt of the perfidious wretch who has recourse to them. To spare the head of any one, and to shed no blood, are expressions which, according to common custom, and especially on such an occasion, manifestly imply to spare the lives of the parties.
All these pitiful subtleties are overthrown by this unerring rule:
When we evidently see what is the sense that agrees with the intention of the contracting parties, it is not allowable to wrest their words to a contrary meaning. The intention, sufficiently known, furnishes the true matter of the convention, what is promised and accepted, demanded and granted. A violation of the treaty is rather a deviation from the intention which it sufficiently manifests, than from the terms in which it is worded: for the terms are nothing without me intention by which they must be dictated.
Is it necessary, in an enlightened age, to say that mental reservations cannot be admitted in treaties? This is manifest, since, by the very nature of the treaty, the parties are bound to express themselves in such manner that they may mutually understand each other (§ 271). There is scarcely an individual now to be found who would not be ashamed of building upon a mental reservation. What can be the use of such an artifice, unless to lull the opposite party into a false security, under the vain appearance of a contract? It is, then, a real piece of knavery.
Technical terms, or terms peculiar to the arts and sciences ought commonly to be interpreted according to the definition given of them by masters of the art, or persons versed in the knowledge of the art or science to which the terms belong. I say commonly, for this rule is not so absolute but that we may and even ought to deviate from it, when we have good reasons for such deviation; as, for instance, if it were proved that he who speaks in a treaty, or in any other deed, did not understand the art or science from which he borrowed the term, that he was unacquainted with its import as a technical word, that he employed it in a vulgar acceptation, &c.
If, however, the technical or other terms relate to things that admit of different degrees, we ought not scrupulously to adhere to definitions, but rather to take the terms in a sense agreeable to the context; for a regular definition describes a thing in its most perfect state; and yet it is certain that we do not always mean it in that state of its utmost perfection, whenever we speak of it. Now, the interpretation should only tend to the discovery of the will of the contracting parties (§ 268): to each term, therefore, we should affix that meaning which the party whose words we interpret probably had in contemplation. Thus, when the parties in a treaty have agreed to submit their pretensions to the decision of two or three able civilians, it would be ridiculous to endeavour to elude the compromise under the pretence that we can find no civilian accomplished in every point, or to strain the terms so far as to reject all who do not equal Cujas or Grotius. Would he who had stipulated for the assistance of ten thousand good troops, have any reason to insist upon soldiers of whom the very worst should be comparable to the veterans of Julius Cζsar? And if a prince had promised his ally a good general, must he send him none but a Marlborough or a Turenne?
There are figurative expressions that are become so familiar in the common use of language, that, in numberless instances, they supply the place of proper terms, so that we ought to take them in a figurative sense, without paying any attention to their original, proper, and direct signification: the subject of the discourse sufficiently indicates the meaning that should be affixed to them. To hatch a plot, to carry fire and sword into a country are expressions of this sort; and there scarcely can occur an instance where it would not be absurd to take them in their direct and literal sense.
There is not perhaps any language mat does not also contain words which signify two or more different things, and phrases which are susceptible of more than one sense. Thence arises ambiguity in discourse. The contracting parties ought carefully to avoid it. Designedly to use it with a view to elude their engagements in the sequel, is downright perfidy, since the faith of treaties obliges the contracting parties to express their intentions clearly (§ 271). But, if an ambiguous expression has found its way into a deed, it is the part of the interpreter to clear up any doubt thereby occasioned.
The following is the rule that ought to direct the interpretation in this as well as in the preceding case: we ought always to affix such meanings to the expressions as is most suitable to the subject or matter in question. For, by a true interpretation, we endeavour to discover the thoughts of the persons speaking, or of the contracting parties in a treaty. Now, it ought to be presumed that he who has employed a word which is susceptible of many different significations, has taken it in that which agrees with his subject. In proportion as he employs his attention on the matter in question, the terms proper to express his thoughts present themselves to his mind; this equivocal word could therefore only present itself in the sense proper to express the thoughts of him who makes use of it, that is, in the sense agreeable to the subject. It would be a feeble objection to this, to allege that a man sometimes designedly employs equivocal expressions, with a view of holding out ideas quite different from his real thoughts, and that, in such case, the sense which agrees with the subject is not that which corresponds with the intention of the person speaking. We have already observed, that, whenever a man can and ought to make known his intention, we assume for true against him what he has sufficiently declared (§ 266). And as good faith ought to preside in conventions, they are always interpreted on the supposition that it actually did preside in them. Let us illustrate this rule by examples. The word day is understood of the natural day, or the time during which the sun affords us his light, and of the civil day, or the space of twenty-four hours. When it is used in a convention to point out a space of time, the subject itself manifestly shows that the parties mean the civil day, or the term of twenty-four hours. It was therefore a pitiful subterfuge, or rather a notorious perfidy, in Cleomenes, when, having concluded a truce of some days with the people of Argos, and finding them asleep on the third night, in reliance on the faith of the treaty, he kilted a part of their number, and made the rest prisoners, alleging that the nights were not comprehended in the truce. The word steel may be understood of the metal itself, or of certain instruments made of it; in a convention which stipulates that the enemy shall lay down their steel, it evidently means their weapons: wherefore, Pericles, in the example related above (§ 233), gave a fraudulent interpretation to those words, since it was contrary to what the nature of the subject manifestly pointed out. Q. Fabius Labeo, of whom we made mention in the same section, showed equal dishonesty in the interpretation of his treaty with Antiochus; for, a sovereign who stipulates that the half of his fleet or of his vessels shall be restored to him, undoubtedly means that the other party shall restore to him vessels which he can make use of, and not the half of each vessel when sawed into two. Pericles and Fabius are also condemned by the rule established above (§ 274), which forbids us to wrest the sense of the words contrary to the evident intention of the contracting parties.
If any one of those expressions which are susceptible of different significations occurs more than once in the same piece, we cannot make it a rule to take it everywhere in the same signification. For we must, conformably to the preceding rule, take such expression, in each article, according as the subject requires. pro substrata materia, as the masters of the art say. The word day, for instance, has two significations, as we have just observed (§ 280). If therefore it be said in a convention, that there shall be a truce of fifty days, on condition that commissioners from both parties shall, during eight successive days, jointly endeavour to adjust the dispute, the fifty days of the truce are civil days of twenty-four hours; but it would be absurd to understand them in the same sense in the second article, and to pretend that the commissioners should labour eight days and nights without intermission.
Every interpretation that leads to an absurdity ought to be rejected: or, in other words, we should not give to any piece a meaning from which any absurd consequences would follow, but must interpret it in such a manner as to avoid absurdity. As it is not to be presumed that anyone means what is absurd, it cannot be supposed that the person speaking intended that his words should be understood in a manner from which an absurdity would follow. Neither is it allowable to presume that he meant to indulge a sportive levity in a serious deed: for what is shameful and unlawful is not to be presumed. We call absurd not only what is physically impossible, but what is morally so, that is to say, what is so contrary to reason that it cannot be attributed to a man in his right senses. Those fanatic Jews who scrupled to defend themselves when the enemy attacked them on the Sabbath day, gave an absurd interpretation to the fourth commandment. Why did they not also abstain from dressing, walking, and eating? These also are "works." if the term be strained to its utmost rigour. It is said that a man in England married three wives, in order that he might not be subject to the penalty of the law which forbids marrying two. This is doubtless a popular tale, invented with a view to ridicule the extreme circumspection of the English, who will not allow the smallest departure from the letter in the application of the law. That wise and free people have too often seen, by the experience of other nations, that the laws are no longer a firm barrier and secure defence, when once the executive power is allowed to interpret them at pleasure. But surely they do not mean that the letter of the law should on any occasion be strained to a sense that is manifestly absurd.
The rule we have just mentioned is absolutely necessary, and ought to be followed, even when the text of the law or treaty does not, considered in itself, present either obscurity or ambiguity in the language. For, it must be observed, that the uncertainty of the sense we are to give to a law or a treaty, does not solely proceed from the obscurity or other defect in the expression, but also from the limited nature of the human mind, which cannot foresee all cases and circumstances, nor take in at one view all of the consequences of what is decreed or promised, and, finally from the impossibility of entering into that immense detail. Laws and treaties can only be worded in a general manner; and it is the interpreter's province to apply them to particular cases, conformably to the intention of the legislature, or of the contracting powers. Now, we are not in any case to presume that it was their intention to establish an absurdity: and therefore, when their expressions taken in their proper and ordinary meaning, would lead to absurd consequences, it becomes necessary to deviate from that meaning, just so far as is sufficient to avoid absurdity. Let us suppose a captain has received orders to advance in a right line with his troops to a certain post: he finds a precipice in his way: surely his orders do not oblige him to leap headlong down: he must, therefore, deviate from the right line, so far as is necessary to avoid the precipice, but no further.
The application of the rule is more easy, when the expressions of the law or of the treaty are susceptible of two different meanings. In this case we adopt without hesitation that meaning from which no absurdity follows. In the same manner, when the expression is such that we may give it a figurative sense, we ought doubtless to do this, when it becomes necessary, in order to avoid falling into an absurdity.
It is not to be presumed that sensible persons, in treating together, or transacting any other serious business, meant that the result of their proceedings should prove a mere nullity. The interpetation, therefore, which would render a treaty null and inefficient, cannot be admitted. We may consider this rule as a branch of the preceding; for, it is a kind of absurdity to suppose that the very terms of a deed should reduce it to mean nothing, It ought to be interpreted in such a manner as that it may have its effect, and not prove vain and nugatory: and in this interpretation we proceed according to the mode pointed out in the foregoing section. In both cases, as in all interpretations, the question is, to give the words that sense which ought to be presumed most conformable to the intention of the parties speaking. If many different interpretations present themselves, by which we can conveniently avoid construing the deed into a nullity or an absurdity, we are to prefer that which appears the most agreeable to the intention of those who framed the deed: the particular circumstances of the case, aided by other rules of interpretation, will serve to point it out. Thucydides relates, that the Athenians, after having promised to retire from the territories of the Botians: a ridiculous quibble, since, by giving that sense to the treaty, they reduced it to nothing, or rather to a puerile play. The territories of the Botians should evidently have been construed to mean all that was comprised within their former boundaries, without excepting what the enemy had seized during the war.
If he who has expressed himself in an obscure or equivocal manner has spoken elsewhere more clearly on the same subject, he is the best interpreter of his own words. We ought to interpret his obscure or equivocal expressions in such a manner that they may agree with those clear and unequivocal terms which he has elsewhere used, either in the same deed, or on some other similar occasion. In fact, while we have no proof that a man has changed his mind or manner of thinking, it is presumed that his thoughts have been the same on similar occasions; so that, if he has anywhere clearly shown his intention with respect to a certain thing, we ought to affix the same meaning to what he has elsewhere obscurely said on the same subject. Let us suppose for instance, that two allies have reciprocally promised each other, in case of necessity, the assistance of ten thousand foot soldiers, who are to be supported at the expense of the party that sends them, and that, by a posterior treaty, they agree that the number of the auxiliary troops shall be fifteen thousand, without mentioning their support: the obscurity or uncertainty which remains in this article of the new treaty, is dissipated by the clear and express stipulation contained in the former one. As the allies do not give any indication that they have changed their minds with respect to the support of the auxiliary troops, we are not to presume any such change; and those fifteen thousand men are to be supported as the ten thousand promised in the first treaty. The same holds good, and with much stronger reason, when there is question of two articles of the same treaty, when, for example, a prince promises to furnish ten thousand men, paid and maintained at his own expense, for the defence of the states of his ally, and in another article, only promises four thousand men, in case that ally be engaged in an offensive war.
It frequently happens, that, with a view to conciseness, people express imperfectly, and with some degree of obscurity, things which they suppose to be sufficiently elucidated by the preceding matter, or which they intend to explain in the sequel: and moreover, words and expressions have a different force, sometimes even a quite different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is therefore another source of interpretation. We must consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification which it may individually admit of, as ihal which it ought to have from the context and spirit of the discourse. Such is the maxim of the Roman law, Incivile est, nisi totβ lege perspectβ, unβ aliquβ particulβ ejus propositβ, judicare, vel respondere.
The very connection and relation of the things in question help also to discover and establish the true sense of a treaty, or of any other piece. The interpretation ought to be made in such a manner, that all the parts may appear consonant to each other, that what follows may agree with what preceded, unless it evidently appear that by the subsequent clauses, the parties intended to make some alteration in the preceding ones. For it is to be presumed that the authors of a deed had a uniform and steady train of thinking, that they did not aim at inconsistencies and contradictions, but rather that they intended to explain one thing by another, and, in a word, that one and the same spirit reigns throughout the same production or the same treaty. Let us render this more plain by an example. A treaty of alliance declares, that, in case one of the allies be attacked, each of the others shall assist him with a body of ten thousand foot, paid and supported; and in another article, it is said that the ally who is attacked shall be at liberty to demand the promised assistance in cavalry rather than in infantry. Here we see, that, in the first article, the allies have determined the quantum of the succour, and its value, that of ten thousand foot; and, in the latter article, without appearing to intend any variation in the value or number, they leave the nature of the succours to the choice of the party who may stand in need of them. If, therefore, the ally who is attacked calls upon the others for cavalry, they will give him, according to the established proportion, an equivalent to ten thousand foot. But if it appears that the intention of the latter article was, that the promised succours should in certain cases be augmented, if, for instance, it be said, that, in case one of the allies happen to be attacked by an enemy of considerably superior strength, and more powerful in cavalry, the succours should be furnished in cavalry, and not in infantry, it appears that, in this case, the promised assistance ought to be ten thousand horse.
As two articles in one and the same treaty may bear relation to each other, two different treaties may in like manner have a relative connection; and, in this case, each serves to explain the other. For instance, one of the contracting parties has, in consideration of a certain object, promised to deliver to the other ten thousand sacks of wheat. By a subsequent agreement, it is determined, that, instead of wheat, he shall give him oats. The quantity of oats is not expressed; but it is determined by comparing the second convention with the first. If there be no circumstance to prove that it was the intention of the parties, in the second agreement, to diminish the value of what was to be delivered, we are to understand a quantity of oats proportioned to the price of ten thousand sacks of wheat; but if it evidently appears from the circumstances and motives of the second convention, that it was their intention to reduce the value of what was due under the former agreement, in this case, ten thousand sacks of oats are to be substituted in lieu of the ten thousand sacks of wheat.
The reason of the law, or of the treaty, that is to say, the motive which led to the making of it, and the object in contemplation at the time, is the most certain clue to lead us to the discovery of its true meaning; and great attention should be paid to this circumstance, whenever there is question either of explaining an obscure, ambiguous, indeterminate passage in a law or treaty, or of applying it to a particular case. When once we certainty know the reason which alone has determined the will of the person speaking, we ought to interpret and apply his words in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intention, and in opposition to his own views. Pursuant to this rule, a prince, who, on granting his daughter in marriage, has promised to assist his intended son-in-law in all his wars, is not bound to give him any assistance if the marriage does not take place.
But we ought to be very certain that we know the true and only reason of the law, the promise, or the treaty. In matters of this nature, it is not allowable to indulge in vague and uncertain conjectures, and to suppose reasons and views where there are none certainly known.
If the piece in question is in itself obscure, if, in order to discover its meaning, we have no other resource than the investigation of the author's views, or the motives of the deed, we may then have recourse to conjecture, and, in default of absolute certainty, adopt as the true meaning, that which has the greatest degree of probability on its side. But it is a dangerous abuse, to go, without necessity, in search of motives and uncertain views, in order to wrest, restrict, or extend the meaning of a deed which is of itself sufficiently clear, and carries no absurdity on the face of it. Such a procedure is a violation of that incontestable maxim, that it is not allowable to interpret what has no need of interpretation (§ 263), Much less are we allowed, when the author of a piece has in the piece itself declared his reasons and motives, to attribute to him some secret reason, which may authorize us in giving an interpretation repugnant to the natural meaning of the expressions. Even though he should have entertained the views which we attribute to him, yet, if he has concealed them, and announced different ones, it is upon the latter alone that we must build our interpretation, and not upon those which the author has not expressed: we assume, as true, against him, what he has sufficiently declared (§ 266).
We ought to be the more circumspect in this kind of interpretation, as it frequently happens that several motives concur to determine the will of the party who speaks in a law or a promise. Perhaps the combined influence of all those motives was necessary in order to determine his will; perhaps each one of them, taken individually, would have been sufficient to produce that effect. In the former case, if we are perfectly certain that it was only in consideration of several concurrent reasons and motives that the legislature or the contracting parties consented to the law or the contract, the interpretation and application ought to be made in a manner agreeable to all those concurrent reasons, and none of them must be overlooked. But in the latter case, when it is evident that each of the reasons which have concurred in determining the will was sufficient to produce that effect, so that the author of the piece in question would, by each of the reasons separately considered, have been induced to form the same determination which he has formed upon all the reasons taken in the aggregate, his words must be so interpreted and applied, as to make them accord with each of those reasons taken individually. Suppose a prince has promised certain advantages to all foreign Protestants and artisans who will come and settle in his estates: if that prince is in no want of subjects, but of artisans only, and if, on the other hand, it appears that he does not choose to have any other subjects than Protestants, his promise must be so interpreted, as to relate only to such foreigners as unite those two characters, of Protestants and artisans. But if it is evident that this prince wants to people his country, and that, although he would prefer Protestant subjects to others, he has in particular so great a want of artisans, that he would gladly receive them, of whatever religion they be, his words should be taken in a disjunctive sense, so that it will be sufficient to be either a Protestant or an artisan, in order to enjoy the promised advantages.
To avoid tedious and complex circumlocution, we shall make use of the term, "sufficient reason for an act of the will," to express whatever has produced that act, whatever has determined the will on a particular occasion, whether the will has been determined by a single reason, or by many concurrent reasons. That sufficient reason, then, will be sometimes found to consist in a combination of many different reasons, so that, where a single one of those reasons is wanting, the sufficient reason no longer exists: and in those cases where we say that many motives, many reasons, have concurred to determine the will, yet so as that each in particular would have been alone capable of producing the same effect, there will then be many sufficient reasons for producing one single act of the will. Of this we see daily instances. A prince, for example, declares war for three or four injuries received, each of which would have been sufficient to have produced the declaration of war.
The consideration of the reason of a law or promise not only serves to explain the obscure or ambiguous expressions which occur in the piece, but also to extend or restrict its several provisions independently of the expressions, and in conformity to the intention and views of the legislature or the contracting parties, rather than to their words. For, according to the remark of Cicero,10 the language, invented to explain the will, ought not to hinder its effect. When the sufficient and only reason of a provision, either in a law or a promise, is perfectly certain and well understood, we extend that provision to cases to which the same reason is applicable, although they be not comprised within the signification of the terms. This is what is called extensive interpretation. It is commonly said, that we ought to adhere rather to the spirit than to the letter. Thus, the Mohammedans justly extend the prohibition of wine, in the Koran, to all intoxicating liquors; that dangerous quality being the only reason that could induce their legislator to prohibit the use of wine. Thus, also, if, at the time when there were no other fortifications than walls, it was agreed not to enclose a certain town with walls, it would not be allowable to fortify it with fosses and ramparts, since the only view of the treaty evidently was, to prevent its being converted into a fortified place.
But we should here observe the same caution above recommended (§ 287), and even still greater, since the question relates to an application in no wise authorized by the terms of the deed. We ought to be thoroughly convinced that we know the true and only reason of the law or the promise, and that the author has taken it in the same latitude which must be given to it in order to make it reach the case to which we mean to extend the law or promise in question. As to the rest, I do not here forget what I have said above (§ 268), that the true sense of a promise is not only that which the person promising had in his mind, but also that which has been sufficiently declared, that which both the contracting parties must reasonably have understood. In like manner, the true reason of a promise is that which the contract, the nature of the things in question, and other circumstances, sufficiently indicate: it would be useless and ridiculous to allege any by-views which the person might have secretly entertained in his own mind.
The rule just laid down serves also to defeat the pretexts and pitiful evasions of those who endeavour to elude laws or treaties. Good-faith adheres to the intention: fraud insists on the terms, when it thinks that they can furnish a cloak for its prevarications. The isle of Pharos near Alexandria was, with other islands, tributary to the Rhodians. The latter having sent collectors to levy the tribute, the queen of Egypt amused them for some time at her court, using in the meanwhile every possible exertion to join Pharos to the main land by means of moles: after which she laughed at the Rhodians, and sent them a message, intimating that it was very unreasonable in them to pretend to levy on the main land a tribute which they had no title to demand except from the islands. There existed a law which forbade the Corinthians to give vessels to the Athenians: they sold them a number at five drachmζ each. The following was an expedient worthy of Tiberius: custom not permitting him to cause a virgin to be strangled, he ordered the executioner first to deflower the young daughter of Sejanus, and then to strangle her. To violate the spirit of the law while we pretend to respect the letter, is a fraud no less criminal than an open violation of it: it is equally repugnant to the intention of the law-maker, and only evinces a more artful and deliberate villany in the person who is guilty of it.
Restrictive interpretation, which is the reverse of extensive interpretation, is founded on the same principle. As we extend a clause to those cases, which, though not comprised within the meaning of the terms, are nevertheless comprised in the intention of that clause, and included in the reasons that produced it, in like manner, we restrict a law or a promise, contrary to the literal signification of the terms, our judgment being directed by the reason of that law or that promise; that is to say, if a case occurs, to which the well known reason of a law or promise is utterly inapplicable, that case ought to be excepted, although, if we were barely to consider the meaning of the terms, it should seem to fall within the purview of the law or promise. It is impossible to think of every thing, to foresee every thing, and to express every thing: it is sufficient to enounce certain things in such a manner as to make known our thoughts concerning things of which we do not speak: and, as Seneca the rhetorician says, there are exceptions so clear, that it is unnecessary to express them. The law condemns to suffer death whoever strikes his father: shall we punish him who has shaken and struck his father, to recover him from a lethargic stupor? Shall we punish a young child, or a man in a delirium, who has lifted his hand against the author of his life? In the former case the reason of the law does not hold good; and to the two latter it is inapplicable. We are bound to restore what is intrusted to us: shall I restore what a robber has intrusted to me, at the time when the true proprietor makes himself known to me, and demands his property? A man has left his sword with me: shall I restore it to him, when, in a transport of fury, he demands it for the purpose of killing an innocent person?
We have recourse to restrictive interpretation, in order to avoid falling into absurdities (see § 282). A man bequeaths his house to one, and to another his garden, the only entrance into which is through the house. It would be absurd to suppose that he had bequeathed to the latter a garden into which he could not enter: we must therefore restrict the pure and simple donation of the house, and understand that it was given only upon condition of allowing a passage to the garden. The same mode of interpretation is to be adopted, whenever a case occurs, in which the law or the treaty, if interpreted according to the strict meaning of the terms, would lead to something unlawful. On such an occasion, the case in question is to be excepted, since nobody can ordain or promise what is unlawful. For this reason, though assistance has been promised to an ally in all his wars, no assistance ought to be given him when he undertakes one that is manifestly unjust.
When a case arises in which it would be too severe and too prejudicial to any one to interpret a law or a promise according to the rigour of the terms, a restrictive interpretation is then also used, and we except the case in question, agreeably to the intention of the legislature, or of him who made the promise: for the legislature intends only what is just and equitable; and, in contracts, no one can enter into such engagements in favour of another, as shall essentially supersede the duty he owes to himself. It is then presumed with reason, that neither the legislature nor the contracting parties have intended to extend their regulations to cases of this nature, and that they themselves, if personally present, would except them. A prince is no longer obliged to send succours to his allies, when he himself is attacked, and has need of all his forces for his own defence. He may also, without the slightest imputation of perfidy, abandon an alliance, when, through the ill success of the war, he sees his state threatened with impending ruin if he does not immediately treat with the enemy. Thus, towards the end of the last century, Victor Amadeus, duke of Savoy, found himself under the necessity of separating from his allies, and of receiving law from France, to avoid losing his states. The king, his son would have had good reasons to justify a separate peace in the year 1745; but upheld by his courage, and animated by just views of his true interest, he embraced the generous resolution to struggle against an extremity which might have dispensed with his persisting in his engagements.
We have said above (§ 280), that we should take the expressions in the sense that agrees with the subject or the matter. Restrictive interpretation is also directed by this rule. If the subject or the matter treated of will not allow that the terms of a clause should be taken in their full extent, we should limit the sense according as the subject requires. Let us suppose that the custom of a particular country confines the entail of fiefs to the male line properly so called: if an act of enfeoffment in that country declares that the fief is given to a person for himself and his male descendants, the sense of these last words must be restricted to the males descending from males; for the subject will not admit of our understanding them also of males who are the issue of females, though they are reckoned among the male descendants of the first possessor.
The following question has been proposed and debated: "Whether promises include a tacit condition of the state of affairs continuing the same, or whether a change happening in the state of affairs can create an exception to the promise, and even render it void?" The principle derived from the reason of the promise must solve the question. If it be certain and manifest that the consideration of the present state of things was one of the reasons which occasioned the promise, that the promise was made in consideration or in consequence of that state of things, it depends on the preservation of things in the same state. This is evident, since the promise was made only upon that supposition. When therefore that state of things which was essential to the promise, and without which it certainly would not have been made, happens to be changed, the promise falls to the ground when its foundation fails. And in particular cases, where things cease for a time to be in the state that has produced or concurred to produce the promise, an exception is to be made to it. An elective prince, being without issue, has promised to an ally that he will procure his appointment to the succession. He has a son born: who can doubt that the promise is made void by this event? He who in a time of peace has promised succours to an ally, is not bound to give him any when he himself has need of all his forces for the defence of his own dominions, A prince, possessed of no very formidable power, has received from his allies a promise of faithful and constant assistance, in order to his aggrandizement, in order to enable him to obtain a neighbouring state by election or by marriage: yet those allies will have just grounds for refusing him the smallest aid or support, and even forming an alliance against him, when they see him elevated to such a height of power as to threaten the liberties of all Europe. If the great Gustavus had not been killed at Lutzen, cardinal de Richelieu, who had concluded an alliance for his master with that prince, and who had invited him into Germany, and assisted him with money, would perhaps have found himself obliged to traverse the designs of that conqueror, when become formidable, to set bounds to his astonishing progress, and to support his humbled enemies. The states-general of the United Provinces conducted themselves on these principles in 1668. In favour of Spain, which before had been their mortal enemy, they formed the triple alliance against Louis XIV. their former ally. It was necessary to raise a barrier to check the progress of a power which threatened to inundate and overwhelm all before it.
But we ought to be very cautious and moderate in the application of the present rule: it would be a shameful perversion of it, to take advantage of every change that happens in the state of affairs, in order to disengage ourselves from our promises: were such conduct adopted, there could be no dependence placed on any promise whatever. That state of things alone, in consideration of which the promise was made, is essential to the promise: and it is only by a change in that state, that the effect of the promise can be lawfully prevented or suspended. Such is the sense in which we are to understand that maxim of the civilians, conventio omnis intelligitur rebus sic stantibus.
What we say of promises, must also be understood as extending to laws. A law which relates to a certain situation of affairs can only take place in that situation. We ought to reason in the same manner with respect to a commission. Thus, Titus being sent by his father to pay his respects to the emperor, turned back on being informed of the death of Galba.
In unforeseen cases, that is to say, when the state of things happens to be such as the author of a deed has not foreseen, and could not have thought of, we should rather be guided by his intention than by his words, and interpret the instrument as he himself would interpret it if he were on the spot, or conformably to what he would have done if he had foreseen the circumstances which are at present known. This rule is of great use to judges, and to all those in society who are appointed to carry into effect the testamentary regulations of the citizens. A father appoints by will a guardian for his children, who are under age. After his death the magistrate finds that the guardian he has nominated is an extravagant profligate, without property or conduct: he therefore dismisses him, and appoints another, according to the Roman laws, adhering to the intention of the testator, and not to his words; for it is but reasonable to suppose, and we are to presume it as a fact, that the father never intended to give his children a guardian who should ruin them, and that he would have nominated another, had he known the vices of the person he appointed.
When the things which constitute the reason of a law or convention are considered, not as actually existing, but simply as possible, ; or, in other words, when the fear of an event is the reason of a law or a promise, no other cases can be excepted from it than those in which it can be proved to demonstration that the event is really impossible. The bare possibility of the event is sufficient to preclude all exceptions. If, for instance, a treaty declares that no army or fleet shall be conducted to a certain place, it will not be allowable to conduct thither an army or a fleet, under pretence that no harm is intended by such a step: for the object of a clause of this nature is not only to prevent a real evil, but also to keep all danger at a distance, and to avoid even the slightest subject of uneasiness. It is the same with the law which forbids walking the streets by night with a lighted torch or candle. It would be an unavailing plea for the transgression of that law to allege that no mischief has ensued, and that he carried his torch with such circumspection that no ill consequence was to be apprehended. The bare possibility of causing a conflagration was sufficient to have rendered it his duty to obey the law; and he has transgressed it by exciting fears which it was the intention of the legislature to prevent.
At the beginning of this chapter, we observed that men's ideas and language are not always perfectly determinate. There is, doubtless, no language in which there do not occur expressions, words, or entire phrases, susceptible of a more or less extensive signification. Many a word is equally applicable to the genus or the species: the word fault implies intention guilt or simple error: several species of animals have but one name common to both sexes, as partridge, lark, sparrow, &c.; when we speak of horses, merely with a view to the services they render to mankind, mares also are comprehended under that name. In technical language a word has sometimes a more and sometimes a less extensive sense, than in vulgar use: the word death, among civilians, signifies not only natural death, but also civil death: verbum, in the Latin grammar, signifies only that part of speech called the verb, but in common use, it signifies any word in general. Frequently, also, the same phrase implies more things on one occasion, and fewer on another, according to the nature of the subject or matter: thus, when we talk of sending succours, sometimes we understand a body of auxiliary troops maintained and paid by the party who sends them, at other times a body whose expenses are to be entirely defrayed by the party who receives them. It is therefore necessary to establish rules for the interpretation of those indeterminate expressions, in order to ascertain the cases in which they are to be understood in the more extensive sense, and those in which they are to be restricted to their more limited meaning. Many of the rules we have already given may serve for this purpose.
But it is to this head that the famous distinction, between things of a favourable and those of an odious nature, particularly belongs. Some writers have rejected the distinction,16 doubtless for want of properly understanding it. In fact, the definitions that have been given of what is favourable and what is odious, are not fully satisfactory, nor easily applied. After having maturely considered what the most judicious authors have written on the subject, I conceive the whole of the question to be reducible to the following positions, which convey a just idea of that famous distinction. When the provisions of a law or a convention are plain, clear, determinate, and attended with no doubt or difficulty in the application, there is no room for any interpretation or comment (§ 263). The precise point of the will of the legislature or the contracting parties, is what we must adhere to. But if their expressions are indeterminate, vague, or susceptible of a more or less extensive sense, if that precise point of their intention cannot, in the particular case in question, be discovered and fixed by the other rules of interpretation, we must presume it according to the laws of reason and equity: and, for this purpose, it is necessary to pay attention to the nature of the things to which the question relates. There are certain things of which equity admits the extension, rather than the restriction; that is to say, that, with respect to those things, the precise point of the will not being discovered in the expressions of the law or the contract, it is safer and more consistent with equity, to suppose and fix that point in the more extensive, than in the more limited sense of the terms; to give a latitude to the meaning of the expressions, than to restrict it. These are the things called favourable. Odious things, on the other hand, are those, of which the restriction tends more certainly to equity than the extension. Let us figure to ourselves the intention or the will of the legislature or the contracting parties as a fixed point. At that point precisely should we stop, if it be clearly known; if uncertain, we should at least endeavour to approach it. In things favourable, it is better to pass beyond that point, than not to reach it; in things odious, it is better not to reach it, than to pass beyond it.
It will not now be difficult to show, in general, what things are favourable, and what are odious. In the first place, every thing that tends to the common advantage in conventions, or that has a tendency to place the contracting parties on a footing of equality, is favourable. The voice of equity, and the general rule of contracts, require that the conditions between the parties should be equal. We are not to presume, without very strong reasons, that one of the contracting parties intended to favour the other to his own prejudice; but there is no danger in extending what is for the common advantage. If, therefore, it happens that the contracting parties have not made known their will with sufficient clearness, and with all the necessary precision, it is certainly more conformable to equity to seek for that will in the sense most favourable to equality and the common advantage, than to suppose it in the contrary sense. For the same reason, every thing that is not for the common advantage, every thing that tends to destroy the equality of a contract, every thing that onerates only one of the parties, or that onerates the one more than the other, is odious. In a treaty of strict friendship, union, and alliance, every thing which, without being burdensome to any of the parties, tends to the common advantage of the confederacy, and to draw the bonds of union closer, is favourable. In unequal treaties, and especially in unequal alliances, all the clauses of inequality, and principally those that onerate the inferior ally, are odious. Upon this principle, that we ought in case of doubt to extend what leads to equality, and restrict what destroys it, is founded that welt-known rule Incommoda vitantis melior quam commoda potentis est causa, the party who endeavours to avoid a loss has a better cause to support than he who aims at obtaining an advantage.
All those things which, without proving too burdensome to any one in particular, are useful and salutary to human society, are to be ranked in the class of favourable things: for a nation is already under a natural obligation with respect to things of this nature: so that if she has entered into any particular engagements of this kind, we run no risk in giving those engagements the most extensive meaning of which they are susceptible. Can we be afraid of violating the rules of equity by following the law of nature, and giving the utmost extent to obligations that lend to the common advantage of mankind? Besides, things which are useful to human society are, from that very circumstance, conducive to the common advantage of the contracting parties, and are consequently favourable (see the preceding section). On the other hand, let us consider as odious every thing that is, in its own nature, rather injurious than useful to mankind. Those things which have a tendency to promote peace are favourable; those that lead to war are odious.
Every thing that contains a penalty, is odious. With respect to the laws, it is universally agreed, that, in case of doubt, the judge ought to incline to the merciful side, and that it is indisputable better to suffer a guilty person to escape, than to punish one who is innocent. Penal clauses in treaties lay a burden upon one of the parties; they are therefore odious (§ 301).
Whatever lends to render a deed void and ineffectual either in the whole, or in part, and consequently, whatever introduces any change in things already agreed upon, is odious: for men treat together with a view to their common benefit; and if I enjoy any particular advantage acquired by a lawful contract, I must not be deprived of it except by my own renunciation. When, therefore, I consent to new clauses that seem to derogate from it, I can lose my right only so far as I have clearly given it up; and consequently these new clauses are to be understood in the most limited sense they will admit of; as is the case in things of an odious nature (§ 300). If that which tends to render a deed void and ineffectual is contained in the deed itself, it is evident that such passages ought to be construed in the most limited sense, in the sense best calculated to preserve the deed in force. We have already seen, that we should reject every interpretation which tends to render a deed void and ineffectual (§ 283).
Whatever tends to change the present state of things is also to be ranked in the class of odious things: for the proprietor cannot be deprived of his right, except so far precisely, as he relinquishes it on his part; and, in case of doubt, the presumption is in favour of the possessor. It is less repugnant to equity to withhold from the owner a possession which he has lost through his own neglect, than to strip the just possessor of what lawfully belongs to him. In the interpretation, therefore, we ought rather to hazard the former inconvenience than the latter. Here also may be applied, in many cases, the rule we have mentioned in § 301, that the party who endeavours to avoid a loss, has a better cause to support than he who aims at obtaining an advantage.
Finally, there are things which are at once of a favourable or an odious nature, according to the point of view in which they are considered. Whatever derogates from treaties, or changes the state of things, is odious; but if it is conducive to peace, it is, in that particular, favourable, A degree of odium always attaches to penalties; they may, however, be viewed in a favourable light on those occasions when they are particularly necessary for the safety of society. When there is question of interpreting things of this nature, we ought to consider whether what is favourable in them greatly exceeds what appears odious, whether the advantage that arises from their being extended to the utmost latitude of which the terms are susceptible, will materially outweigh the severe and odious circumstances attending them; and if that is the case, they are to be ranked in the class of favourable things. Thus, an inconsiderable change in the state of things, or in conventions, is reckoned as nothing, when it procures the inestimable blessings of peace. In the same manner, penal laws may be interpreted in their most extensive meaning, on critical occasions, when such an instance of severity becomes necessary to the safety of the state. Cicero caused the accomplices of Catiline to be executed by virtue of a decree of the senate, the safety of the republic rendering it improper to wait till they should be condemned by the people. But where there is not so great a disproportion in the case, and where things are in other respects equal, favour inclines to that side of the question which presents nothing odious; that is to say, we ought to abstain from things of an odious nature, unless the attendant advantage so far exceed the odious part as in a manner to conceal it from view. If there be any appearance, however small, of an equilibrium between the odious and the favourable in one of those things of a mixed nature, it is ranked in the class of odious things, by a natural consequence drawn from the principle on which we have founded the distinction between things of a favourable and things of an odious nature (§ 300), because, in case of doubt, we should, in preference, pursue that line of conduct by which we are least exposed to deviate from the principles of equity.
In a doubtful case, we may reasonably refuse to give succours (though a thing favourable), when there is question of giving them against an ally, which would be odious.
The following are the rules of interpretation, which flow from the principles we have just laid down.
1. When the question relates to things favourable, we ought to give the terms the utmost latitude of which they are susceptible according to the common usage of the language; and if a term has more than one signification, the most extensive meaning is to be preferred; for equity ought to be the rule of conduct with all mankind wherever a perfect right is not exactly determined and known in its precise extent. When the legislature or the contracting parties have not expressed their will in terms that are precise and perfectly determinate, it is to be presumed that they intended what is most equitable. Now, when there is question of favourable things, the more extensive signification of the terms accords better with equity than the more confined signification. Thus Cicero, in pleading the cause of Cζcina, justly maintains that the interlocutory decree, ordaining, "that the person expelled from his inheritance be reinstated in the possession," should be understood as extending to the man who has been forcibly prevented from entering upon it: and the Digest decides it in the same manner. It is true that this decision is also founded on the rule taken from parity of reasoning (§
290). For it amounts to the same thing in effect, to drive a person from his inheritance, or forcibly to prevent him from entering upon it; and, in both cases, the same reason exists for putting him in possession.
2. In questions relating to favourable things, all terms of art are to be interpreted in the fullest latitude of which they are susceptible, not only in common usage, but also as technical terms, if the person speaking understands the art to which those terms belong, or conducts himself by the advice of men who understand that art.
3. But we ought not, from the single reason that a thing is favourable, to take the terms in an improper signification: this is not allowable, except when necessary in order to avoid absurdity, injustice, or the nullity, of the instrument, as is practiced on every subject (§§ 282, 283): for we ought to take the terms of a deed in their proper sense, conformably to custom, unless we have very strong reasons for deviating from it (§ 271).
4. Though a thing appears favourable when viewed in one particular light, yet, where the proper meaning of the terms would, if taken in its utmost latitude, lead to absurdity or injustice, their signification must be restricted according to the rules given above (§§ 293, 294). For here, in this particular case, the thing becomes of a mixed nature, and even such as ought to be ranked in the class of odious things.
5. For the same reason, although neither absurdity nor injustice results from the proper meaning of the terms, if, nevertheless, manifest equity or a great common advantage requires their restriction, we ought to adhere to the most limited sense which the proper signification will admit, even in an affair that appears favourable in ifs own nature, ; because here also the thing is of a mixed kind, and ought, in this particular case, to be esteemed odious. As to the rest it is to be carefully remembered that all these rules relate only to doubtful cases; since we are not allowed to go in quest of interpretations for what is already clear and determinate (§ 263).
If any one has clearly and formally bound himself to burdensome conditions, he has knowingly and willingly done it, and cannot afterwards be admitted to appeal to equity.
Since odious things are those whose restriction tends more certainly to equity than their extension, and since we ought to pursue that line which is most conformable to equity, when the will of the legislature or of the contracting parties is not exactly determined and precisely known, we should, when there is question of odious things, interpret the terms in the most limited sense; we may even to a certain degree adopt a figurative meaning, in order to avert the oppressive consequences of the proper find literal sense, or any thing of an odious nature, which it would involve: for we are to favour equity, and to do away everything odious, as far as that can be accomplished, without going in direct opposition to the tenor of the instrument, or visibly wresting the text. Now, neither the limited nor even the figurative sense offers any violence to the text. If it is said in a treaty, that one of the allies shall assist the other with a certain number of troops at his own expense, and that the latter shall furnish the same number of auxiliary troops at the expense of the party to whom they are sent, there is something odious in the engagement of the former ally, since he is subject to a greater burden than the other: but the terms being clear and express, there is no room for any restrictive interpretation. But if it were stipulated in this treaty, that one of the allies shall furnish a body of ten thousand men, and the other only of five thousand, without mentioning the expense, it ought to be understood that the auxiliary troops shall be supported at the expense of the ally to whose assistance they are sent; this interpretation being necessary, in order that the inequality between the contracting powers may not be carried too far. Thus, the cession of a right, or of a province, made to a conqueror in order to obtain peace, is interpreted in its confined sense. If it be true that the boundaries of Acadia have always been uncertain, and that the French were the lawful possessors of it, that nation will be justified in maintaining that their cession of Acadia to the English, by the treaty of Utrecht, did not extend beyond the narrowest limits of that province.
In point of penalties, in particular, when they are really odious, we ought not only to restrict the terms of the law, or of the contract, to their most limited signification, and even adopt a figurative meaning, according as the case may require or authorize it, but also to admit of reasonable excuses; which is a kind of restrictive interpretation, tending to exempt the party from the penalty.
The same conduct must be observed with respect to what may render an act void and without effect. Thus, when it is agreed that the treaty shall be dissolved whenever one of the contracting parties fails in the observance of any article of it, it would be at once both unreasonable and contrary to the end proposed in making treaties, to extend that clause to the slightest faults, and to cases in which the defaulter can allege well-grounded excuses.
Grotius proposes the following question "Whether in a treaty which makes mention of allies, we are to understand those only who were in alliance at the time when the treaty was made, or all the allies present and future?" And he gives, as an instance, that article of the treaty concluded between the Romans and Carthaginians, after the war of Sicily, that, "neither of the two nations should do any injury to the allies of the other." In order to understand this part of the treaty, it is necessary to call to mind the barbarous law of nations observed by those ancient people. They thought themselves authorized to attack, and to treat as enemies, all with whom they were not united by any alliance. The article therefore signifies, that on both sides they should treat as friends the allies of their ally, and abstain from molesting or invading them: upon this footing it is in all respects so favourable, so conformable to humanity, and to the sentiments which ought to unite two allies, that it should, without hesitation, be extended to all the allies, present and future. The clause cannot be said to involve any thing of an odious nature, as cramping the freedom of a sovereign state, or tending to dissolve an alliance: for, by engaging not to injure the allies of another power, we do not deprive ourselves of the liberty to make war on them if they give us just cause for hostilities; and when a clause is just and reasonable, it does not become odious from the single circumstance that it may perhaps eventually occasion a rupture of the alliance. Were that to be the case, there could be no clause whatever that might not be deemed odious. This reason, which we have touched upon in the preceding section and in § 304, holds good only in doubtful cases; in the case before us, for instance, it ought to have prevented too hasty a decision that the Carthaginians had carelessly attacked an ally of the Romans. The Carthaginians, therefore, might, without any violation of the treaty, attack Saguntum, if they had lawful grounds for such an attack, or (in virtue of the voluntary law of nations) even apparent or specious grounds (Prelim. § 21). But they might have attacked in the same manner the most ancient ally of the Romans; and the Romans might also, without breaking the treaty of peace, have confined themselves to the succouring of Saguntum. At present, treaties include the allies on both sides: but this does not imply that one of the contracting powers may not make war on the allies of the other if they give him cause for it but simply, that, in case of any quarrel arising between them, each of the contracting parties reserves to himself a power of assisting his more ancient ally: and, in this sense, the future allies are not included in the treaty.
Another example mentioned by Grotius is also taken from a treaty concluded between Rome and Carthage. When the latter city was reduced to extremities by Scipio Ζmilianus, and obliged to capitulate, the Romans promised "that Carthage should remain free, or in possession of the privilege of governing herself by her own laws." In the sequel, however, these merciless conquerors pretended that the promised liberty regarded the inhabitants, and not the city; they insisted that Carthage should be demolished, and that the wretched inhabitants should settle in a place at a greater distance from the sea. One cannot read the account of this perfidious and cruel treatment, without being concerned that the great, the amiable Scipio was obliged to be the instrument of it. To say nothing of the chicanery of the Romans respecting the meaning to be annexed to the word "Carthage," certainly, the "liberty" promised to the Carthaginians, though narrowly circumscribed by the existing state of affairs, should at least have extended to the privilege of remaining in their city. To find themselves obliged to abandon it and settle elsewhere, to lose their houses, their port, and the advantages of their situation, was a subjection incompatible with the smallest degree of liberty, and involved such considerable losses as they could not have bound themselves to submit to, unless by a positive engagement in the most express and formal terms.
Liberal promises, benefactions, and rewards naturally come under the class of favourable things, and receive an extensive interpretation, unless they prove onerous or unreasonably chargeable to the benefactor, or that other circumstances evidently show they are to be taken in a limited sense. For kindness, benevolence, beneficence, and generosity are liberal virtues; they do not act in a penurious manner, and know no other bounds than those set by reason. But if the benefaction falls too heavy upon him who grants it, in this respect it partakes of the odious; and, in case of doubt, equity will not admit the presumption that it has been granted or promised in the utmost extent of the terms: we ought therefore, in such a case, to confine ourselves to the most limited signification which the words are capable of receiving, and thus reduce the benefaction within the bounds of reason. The same mode should be adopted when other circumstances evidently point the more limited signification as the more equitable.
Upon these principles, the bounties of a sovereign are usually taken in the fullest extent of the terms. It is not presumed that he finds himself over-burdened by them; it is a respect due to majesty, to suppose that he had good reasons to induce him to confer them. They are therefore, in their own nature, altogether favourable; and in order to restrict them, it must be proved that they are burdensome to the prince, or prejudicial to the state. On the whole, we ought to apply to deeds of pure liberality the general rule established above (§ 270); if those instruments are not precise and very determinate, they should be interpreted as meaning what the author probably had in his mind.
Let us conclude this subject of interpretation with what relates to the collision or opposition of laws or treaties. We do not here speak of the collision of a treaty with the law of nature: the latter is unquestionably paramount, as we have proved elsewhere (§§ 160, 161, 170, and 293). There is a collision or opposition between two laws, two promises, or two treaties, when a case occurs in which it is impossible to fulfil both at the same time, though otherwise the laws or treaties in question are not contradictory, and may be both fulfilled under different circumstances. They are considered as contrary in this particular case; and it is required to show which deserves the preference, or to which an exception ought to be made on the occasion. In order to guard against all mistake in the business, and to make the exception conformably to reason and justice, we should observe the following rules:
In all cases where what is barely permitted is found incompatible with what is positively prescribed, the latter claims a preference: for the mere permission imposes no obligation to do or not to do: what is permitted is left to our own option we are at liberty either to do it or to forbear to do it. But we have not the same liberty with respect to what is prescribed: we are obliged to do that: nor can the bare permission in the former case interfere with the discharge of our obligation in the latter; but, on the contrary, that which was before permitted in general, ceases to be so in this particular instance, where we cannot take advantage of the permission without violating a positive duty.
In the same manner, the law or treaty which permits, ought to give way to the law or treaty which forbids: for the prohibition must be obeyed; and what was, in its own nature, or in general, permitted, must not be attempted when it can not be done without contravening a prohibition: the permission, in that case, ceases to be available.
All circumstances being otherwise equal, the law or the treaty which ordains, gives way to the law or the treaty which forbids. I say, "all circumstances being otherwise equal;" for many other reasons may occur, which will authorize the exception being made to the prohibitory law or treaty. The rules are general; each relates to an abstract idea, and shows what follows from that idea, without derogation to the other rules. Upon this footing, it is evident that, in general, if we cannot obey an injunctive law without violating a prohibitory one, we should abstain from fulfilling the former: for the prohibition is absolute in itself, whereas every precept, every injunction, is in its own nature conditional, and supposes the power, or a favourable opportunity, of doing what is prescribed. Now when that cannot be accomplished without contravening a prohibition, the opportunity is wanting, and this collision of laws produces a moral impossibility of acting; for what is prescribed in general, is no longer so in the case where it cannot be done without committing an action that is forbidden. Upon this ground rests the generally received maxim that we are not justifiable in employing unlawful means to accomplish a laudable end, as, for instance, in stealing with a view to give alms. But it is evident that the question here regards an absolute prohibition, or those cases to which the general prohibition is truly applicable, and therefore equivalent to an absolute one: there are, however, many prohibitions to which circumstances form an exception. Our meaning will be better explained by an example. It is expressly forbidden, for reasons to me unknown, to pass through a certain place under any pretence whatsoever. I am ordered to carry a message; I find every other avenue shut; I therefore turn back rather than take my passage over that ground which is so strictly forbidden. But if the prohibition to pass be only a general one, with a view to prevent any injury being done to the productions of the soil, it is easy for me to judge that the orders with which I am charged ought to form an exception.
As to what relates to treaties, we are not obliged to accomplish what a treaty prescribes, any farther than we have the power. Now, we have not a power to do what another treaty forbids: wherefore, in case of collision, an exception is made to the injunctive treaty, and the prohibitory treaty has a superior claim to our observance, provided, however, that all circumstances be in other respects equal; for it will presently appear, for instance, that a subsequent treaty cannot derogate from a prior one concluded with another state, nor hinder its effect directly or indirectly.
The dates of laws or treaties furnish new reasons for establishing the exception in cases of collision. If the collision happen between two affirmative laws, or two affirmative treaties concluded between the same persons or the same states, that which is of more recent date claims a preference over the older one: for it is evident, that since both laws or both treaties have emanated from the same power, the subsequent act was capable of derogating from the former. But still this is on the supposition of circumstances being in other respects equal. If there be a collision between two treaties made with two different powers, the more ancient claims the preference: for no engagement of a contrary tenor could be contracted in the subsequent treaty; and if this latter be found, in any case, incompatible with that of more ancient date, its execution is considered as impossible, because the person promising had not the power of acting contrary to his antecedent engagements.
Of two laws or two conventions, we ought (all other circumstances being equal) to prefer the one which is less general, and which approaches nearer to the point in question: because special matter admits of fewer exceptions than that which is general; it is enjoined with greater precision, and appears to have been more pointedly intended. Let us make use of the following example from Puffendorf: One law forbids us to appear in public with arms on holidays; another law commands us to turn out under arms, and repair to our posts, as soon as we hear the sound of the alarm-bell. The alarm is rung on a holiday. In such case we must obey the latter of the two laws, which creates an exception to the former.
What will not admit of delay, is to be preferred to what may be done at another time. For this is the mode to reconcile every thing, and fulfil both obligations; whereas, if we gave the preference to the one which might be fulfilled at another time, we would unnecessarily reduce ourselves to the alternative of failing in our observance of the other.
When two duties stand in competition, that one which is the more considerable, the more praiseworthy, and productive of the greater utility, is entitled to the preference. This rule has no need of proof. But as it relates to duties that are equally in our power, and, as it were, at our option, we should carefully guard against the erroneous application of it to two duties which do not really stand in competition, but of which the one absolutely precludes the other, our obligation to fulfil the former wholly depriving us of the liberty to perform the latter. For instance, it is a more praiseworthy deed to defend one nation against an unjust aggressor, than to assist another in an offensive war. But, if the latter be the more ancient ally, we are not at liberty to refuse her our assistance and give it to the former; for we stand pre-engaged. There is not, strictly speaking, any competition between these two duties: they do not lie at our option: the prior engagement renders the second duty, for the present, impracticable. However, if there were question of preserving a new ally from certain ruin, and that the more ancient ally were not reduced to the same extremity, this would be the case to which the foregoing rule should be applied.
As to what relates to laws in particular, the preference is undoubtedly to be given to the more important and necessary ones. This is the grand rule to be observed whenever they are found to clash with each other; it is the rule which claims the greatest attention, and is therefore placed by Cicero at the head of all the rules he lays down on the subject. It is counteracting the general aim of the legislature, and the great end of the laws, to neglect one of great importance, under pretence of observing another which is less necessary, and of inferior consequence: in fact, such conduct is criminal; for, a lesser good, if it exclude a greater, assumes the nature of an evil.
If we cannot acquit ourselves at the same time of two things promised to the same person, if rests with him to choose which of the two we are to perform; for he may dispense with the other on this particular occasion; in which case there will no longer be any collision of duties. But if we cannot obtain a knowledge of his will, we are to presume that the more important one is his choice; and we should of course give that the preference. And, in case of doubt, we should perform the one to which we are the more strongly bound; it being presumable that he chose to bind us more strongly to that in which he is more deeply interested.
Since the stronger obligation claims a preference over the weaker, if a treaty that has been confirmed by an oath happens to clash with another treaty that has not been sworn to, all circumstances being in other respects equal, the preference is to be given to the former; because the oath adds a new force to the obligation. But as it makes no change in the nature of treaties (§§ 223, &c.), it cannot, for instance, entitle a new ally to a preference over a more ancient ally, whose treaty has not been confirmed by an oath.
For the same reason, and, all circumstances being in other respects equal, what is enjoined under a penalty claims a preference over that which is not enforced by one, and what is enjoined under a greater penalty, over that which is enforced by a lesser; for the penal sanction and convention give additional force to the obligation: they prove that the object in question was more earnestly desired,26 and the more so in proportion as the penalty is more or less severe.
All the rules contained in this chapter ought to be combined together, and the interpretation be made in such manner as to accord with them all, so far as they are applicable to the case. When these rules appear to clash, they reciprocally counterbalance and limit each other, according to their strength and importance, and according as they more particularly belong to the case in question.
THE disputes that arise between nations or their rulers, originate either from contested rights or from injuries received. A nation ought to preserve the rights which belong to her; and the care of her own safety and glory forbids her to submit to injuries. But in fulfilling the duty which she owes to herself, she must not forget her duties to others. These two views, combined together, will furnish the maxims of the law of nations respecting the mode of terminating disputes between different states.
What we have said in Chap. I., IV. and V. of this book, dispenses with our proving here, that a nation ought to do justice to all others with respect to their pretensions, and to remove all their just subjects of complaint. She is therefore bound to render to each nation what is her due, to leave her in the peaceable enjoyment of her rights, to repair any damage that she herself may have caused, or any injury she may have done, to give adequate satisfaction for such injuries as cannot be repaired, and reasonable security against any injury which she has given cause to apprehend. These are so many maxims evidently dictated by that justice which nations as well as individuals are, by the law of nature, bound to observe.
Every one is at liberty to recede from his right, to relinquish a just subject of complaint, and to forget an injury. But the ruler of a nation is not, in this respect, so free as a private individual. The latter may attend solely to the voice of generosity; and, in an affair which concerns none but himself alone, he may indulge in the pleasure which he derives from doing good, and gratify his love of peace and quiet. The representative of a nation, the sovereign, must not consult his own gratification, or suffer himself to be guided by his private inclinations. All his actions must be directed to the greatest advantage of the state, combined with the general interests of mankind, from which it is inseparable. It behooves the prince, on every occasion, wisely to consider and firmly to execute, whatever is most salutary to the state, most conformable to the duties of the nation towards other states, and, at the same time, to consult justice, equity, humanity, sound policy and prudence. The rights or the nation are a property of which the sovereign is only the trustee; and he ought not to dispose of them in any other manner than he has reason to presume the nation herself would dispose of them. And, as to injuries, it is often laudable in a citizen generously to pardon them: he lives under the protection of the laws; the magistrates are capable of defending or avenging him against those ungrateful or unprincipled wretches whom his indulgence might encourage to a repetition of the offence. A nation has not the same security: it is seldom safe for her to overlook or forgive an injury, unless she evidently possess sufficient power to crush the rash aggressor who has dared to offend her. In such a case, indeed, it will reflect glory on her to pardon those who acknowledge their faults,
and she may do it with safety. But between powers that are nearly equal, the endurance of an injury without insisting on complete satisfaction for it, is almost always imputed to weakness or cowardice, and seldom fails long to subject the injured party to further wrongs of a more atrocious nature. Why do we often see the very reverse of this conduct pursued by those who fancy themselves possessed of souls so highly exalted above the level of the rest of mankind? Scarcely can they receive concessions sufficiently humble from weaker states who have had the misfortune to offend them; but to those whom they would find it dangerous to punish, they behave with greater moderation.
If neither of the nations who are engaged in a dispute thinks proper to abandon her right or her pretensions, the contending parties are, by the law of nature, which recommends peace, concord, and charity, bound to try the gentlest methods of terminating their differences. These are first, an amicable accommodation. Let each party coolly and candidly examine the subject of the dispute, and do justice to the other; or let him whose right is too uncertain, voluntarily renounce it. There are even occasions when it may be proper for him who has the clearer right, to renounce it, for the sake of preserving peace, occasions, which it is the part of prudence to discover. To renounce a right in this manner, is not abandoning or neglecting it. People are under no obligation to you for what you abandon: but you gain a friend in the party to whom you amicably yield up what was the subject of a dispute.
Compromise is a second method of bringing disputes to a peaceable termination. It is an agreement, by which, without precisely deciding on the justice of the jarring pretensions, the parties recede on both sides, and determine what share each shall have of the thing in dispute, or agree to give it entirely to one of the claimants on condition of certain indemnifications granted to the other.
Mediation, in which a common friend interposes his good offices, frequently proves efficacious in engaging the contending parties to meet each other halfway, to come to a good understanding, to enter into an agreement or compromise respecting their rights, and, if the question relates to an injury, to offer and accept a reasonable satisfaction. The office of mediator requires as great a degree of integrity, as of prudence and address. He ought to observe a strict impartiality; he should soften the reproaches of the disputants, calm their resentments, and dispose their minds to a reconciliation. His duty is to favour well-founded claims, and to effect the restoration, to each party, of what belongs to him: but he ought not scrupulously to insist on rigid justice. He is a conciliator, and not a judge: his business is to procure peace; and he ought to induce him who has right on his side to relax something of his pretensions, if necessary, with a view to so great a blessing.
The mediator is not guarantee for the treaty which he has conducted, unless he has expressly undertaken to guarantee it. That is an engagement of too great consequence to be imposed on any one, without his own consent clearly manifested. At present, when the affairs of the sovereigns of Europe are so connected, that each has an eye on what passes between those who are the most distant, mediation is a mode of conciliation much used. Does any dispute arise? The friendly powers, those who are afraid of seeing the flames of war kindled, offer their mediation, and make overtures of peace and accommodation.
When sovereigns cannot agree about their pretensions and are nevertheless desirous of preserving or restoring peace, they sometimes submit the decision of their disputes to arbitrators chosen by common agreement. When once the contending parties have entered into articles of arbitration, they are bound to abide by the sentence of the arbitrators: they have engaged to do this; and the faith of treaties should be religiously observed.
If, however, the arbitrators, by pronouncing a sentence evidently unjust and unreasonable, should forfeit the character with which they were invested, their judgment would deserve no attention: the parties had appealed to it only with a view to the decision of doubtful questions. Suppose a board of arbitrators should, by way of reparation for some offence, condemn a sovereign state to become subject to the state she has offended, will any man of sense assert that she is bound to submit to such decision? If the injustice is of small consequence, it should be borne for the sake of peace; and if it is not absolutely evident, we ought to endure it, as an evil to which we have voluntarily exposed ourselves. For if it were necessary that we should be convinced of the justice of a sentence before we would submit to it, it would be of very little use to appoint arbitrators.
There is no reason to apprehend, that, by allowing the parties a liberty of refusing to submit to a manifestly unjust and unreasonable sentence, we should render arbitration useless: our decision is by no means repugnant to the nature of recognisances or arbitration articles. There can be no difficulty in the affair, except in case of the parties having signed vague and unlimited articles, in which they have not precisely specified the subject of the dispute, or marked the bounds of their opposite pretensions, it may then happen, as in the example just alleged, that the arbitrators will exceed their power, and pronounce on what has not been really submitted to their decision. Being called in to determine what satisfaction a state ought to make for an offence, they may condemn her to become subject to the state she has offended. But she certainly never gave them so extensive a power; and their absurd sentence is not binding. In order to obviate all difficulty, and cut off every pretext of which fraud might make a handle, it is necessary that the arbitration articles should precisely specify the subject in dispute, the restrictive and opposite pretensions of the parties, the demands of the one, and the objections of the other. These constitute the whole of what is submitted to the decision of the arbitrators; and it is upon these points alone that the parties promise to abide by their judgment. If, then, their sentence be confined within these precise bounds, the disputants must acquiesce in it. They cannot say that it is manifestly unjust, since it is pronounced on a question which they have themselves rendered doubtful by the discordance of their claims, and which has been referred, as such, to the decision of the arbitrators. Before they can pretend to evade such a sentence, they should prove, by incontestable facts, that it was the offspring of corruption or flagrant partiality.
Arbitration is a very reasonable mode, and one that is perfectly conformable to the law of nature, for the decision of every dispute which does not directly interest the safety of the nation. Though the claim of justice may be mistaken by the arbitrators, it is still more to be feared that it will be overpowered in an appeal to the sword. The Swiss have had the precaution, in all their alliances among themselves, and even in those they have contracted with the neighbouring powers, to agree beforehand on the manner in which their disputes were to be submitted to arbitrators, in case they could not adjust them in an amicable manner. This wise precaution has not a little contributed to maintain the Helvetic republic in that flourishing state which secures her liberty, and renders her respectable throughout Europe.
In order to put in practice any of these methods, it is necessary to speak with each other, and to confer together. Conferences and congresses are therefore a mode of conciliation, which the law of nature recommends to nations, as well calculated to bring their differences to an amicable termination, Congresses are assemblies of plenipotentiaries appointed to find out means of conciliation, and to discuss and adjust the reciprocal pretensions of the contending parties. To afford the prospect of a happy issue of their deliberations, such meetings should be formed and directed by a sincere desire of peace and concord. In the present century, Europe has witnessed two general congresses, that of Cambray, and that of Soissons, both tedious farces acted on the political theatre, in which the principal performers were less desirous of coming to an accommodation than of appearing to desire it.
In order at present to ascertain in what manner and how far a nation is bound to resort or accede to these various modes of accommodation, and which of them she ought to prefer, it becomes necessary, in the first place, to distinguish between cases that are evident, and those that are doubtful. Does the question relate to a right that is clear, certain, and incontestable? A sovereign, if he possesses sufficient strength, may peremptorily prosecute and defend that right, without exposing it to the doubtful issue of an arbitration. Shall he submit to negotiate and compound for a thing that evidently belongs to him, and which is disputed without the least shadow of justice? Much less will he subject it to arbitration. But he ought not to neglect those methods of conciliation, which, without endangering his own right, may induce his opponent to listen to reason, such as mediation and conferences. Nature gives us no right to have recourse to forcible means, except where gentle and pacific methods prove ineffectual. It is not permitted to be so inflexible in uncertain and doubtful questions. Who will dare to insist that another shall immediately, and without examination, relinquish to him a disputable right? This would be a means of rendering wars perpetual and inevitable. Both the contending parties may be equally convinced of the justice of their claims: why, therefore, should either yield to the other? In such a case, they can only demand an examination of the question, propose a conference or an arbitration, or offer to settle the point by articles of agreement.
In the disputes that arise between sovereigns, it is moreover necessary to make a proper distinction between essential right and rights of inferior importance: for, according to the difference in the two cases, a different line of conduct is to be pursued. A nation is under many obligations of duty towards herself, towards other nations, and towards the great society of mankind. We know that the duties we owe to ourselves are, generally speaking, paramount to those we owe to others; but this is to be understood only of such duties as bear some proportion to each other. We cannot refuse, in some degree, to forget ourselves with respect to interests that are not essential, and to make some sacrifices, in order to assist other persons, and especially for the greater benefit of human society: and let us even remark, that we are invited by our own advantage by our own safety to make these generous sacrifices; for the private good of each is intimately connected with the general happiness. What idea should we entertain of a prince or a nation who would refuse to give up the smallest advantage for the sake of procuring to the world the inestimable blessings of peace? Every power therefore owes this respect to the happiness of human society, to show himself open to every mode of conciliation, in questions relating to interests which are neither essential nor of great importance. If he exposes himself to the loss of something by an accommodation, by a compromise, or by an arbitration, he ought to be sensible what are the dangers, the evils, the calamities of war, and to consider that peace is well worth a small sacrifice.
But if any one would rob a nation of one of her essential rights, or a right without which she could not hope to support her national existence, if an ambitious neighbour threatens the liberty of a republic, if he attempts to subjugate and enslave her, she will take counsel only from her own courage. She will not even attempt the mode of conferences on so odious a pretension; she will, in such a quarrel, exert her utmost efforts, exhaust every resource, and gloriously lavish her blood to the last drop if necessary. To listen to the smallest proposition, is pulling every thing to the risk. On such an occasion she may truly say
Una salus nullam sperare salutem:
and if fortune prove unfavourable, a free people will prefer death to servitude. What would have become of Rome, had she listened to timid counsels, when Hannibal was encamped before her walls? The Swiss, ever so ready to embrace pacific measures or submit to legal decisions in disputes respecting less essential points, have uniformly spurned at all idea of compromise with those who harboured designs against their liberty. They even refused on such occasions to submit their disputes to arbitration, or to the judgment of the emperors.
In doubtful causes which do not involve essential points, if one of the parties will not accede either to a conference, an accommodation, a compromise, or an arbitration, the other has only the last resource for the defence of himself and his rights, an appeal to the sword; and he has justice on his side in taking up arms against so untractable an adversary. For, in a doubtful cause, we can only demand all the reasonable methods of elucidating the question, and of deciding or accommodating the dispute (§ 331).
But let us never lose sight of what a nation owes to her own security, nor of that prudence by which she ought constantly to be directed. To authorize her to have recourse to arms, it is not always necessary that every conciliatory measure be first expressly rejected: it is sufficient that she have every reason to believe that the enemy would not enter into those measures with sincerity, that they could not be brought to terminate in a happy result, and that the intervening delay would only expose her to a greater danger of being overpowered, This maxim is incontestable; but its application in practice is very delicate. A sovereign who would not be considered as a disturber of the public peace, will not be induced abruptly to attack him who has not refused to accede to pacific measures, unless he be able to justify his conduct in the eyes of all mankind, by proving that he has reason to consider those peaceable appearances as an artifice employed for the purpose of amusing him, and taking him by surprise. To make his bare suspicions serve as sufficient authority for such a step, would be sapping every foundation on which rests the security of nations.
The faith of one nation has ever been suspected by another, and sad experience but too plainly proved that this distrust is not ill-founded.
Independence and impunity are a touchstone that discovers the alloy of the human heart: the private individual assumes the character of candour and probity; and, in default of the reality, his dependence frequently obliges him to exhibit in his conduct at least the appearance of those virtues. The great man, who is independent, boasts still more of them in his discourse; but as soon as he finds himself possessed of superior strength, he scarcely endeavours to save appearances, unless his heart be moulded of materials which, unfortunately, are very rare indeed: and, if powerful interest intervene, he will give himself a latitude in the pursuit of measures that would cover a private person with shame and infamy. When, therefore, a nation pretends that it would be dangerous for her to attempt pacific measures, she can find abundance of pretexts to give a colour of justice to her precipitation in having recourse to arms. And as, in virtue of the natural liberty of nations, each one is free to judge in her own conscience how she ought to act, and has a right to make her own judgment the sole guide of her conduct with respect to her duties in every thing that is not determined by the perfect rights of another (Prelim. § 20), it belongs to each nation to judge whether her situation will admit of pacific measures, before she has recourse to arms. Now, as the voluntary law of nations ordains, that, for these reasons, we should esteem lawful whatever a nation thinks proper to do in virtue of her natural liberty (Prelim, § 21), by that same voluntary law, nations are bound to consider as lawful the conduct of that power who suddenly takes up arms in a doubtful cause, and attempts to force his enemy to come to terms, without having previously tried pacific measures. Louis XIV. was in the heart of the Netherlands before it was known in Spain that he laid claim to the sovereignty of a part of those rich provinces in right of the queen his wife. The king of Prussia, in 1741, published his manifesto in Silesia, at the head of sixty thousand men. Those princes might have wise and just reasons for acting thus: and this is sufficient at the tribunal of the voluntary law of nations. But a thing which that law tolerates through necessity, may be found very unjust in itself: and a prince who puts it in practice may render himself very guilty in the sight of his own conscience, and very unjust towards him whom he attacks, though he is not accountable for it to other nations, as he cannot be accused of violating the general rules which they are bound to observe towards each other. But if he abuses this liberty, he gives all nations cause to hate and suspect him; he authorizes them to confederate against him; and thus, while he thinks he is promoting his interests, he sometimes irretrievably ruins them.
A sovereign ought, in all his quarrels, to entertain a sincere desire of rendering justice and preserving peace. He is bound, before he take up arms, and also after having taken them up, to offer equitable conditions; and then alone he is justifiable in appealing to the sword against an obstinate enemy who refuses to listen to the voice of justice or equity.
It is the business of the appellant to prove his right; for he ought to show a good foundation for demanding a thing which he does not possess. He must have a title: and people are not obliged to respect that title any farther than he shows its validity. The possessor may therefore remain in possession till proof be adduced to convince him that his possession is unjust. As long as that remains undone, he has a right to maintain himself in it, and even to recover it by force, if he has been despoiled of it. Consequently it is not allowable to take up arms in order to obtain possession of a thing to which the claimant has but an uncertain or doubtful right. He is only justifiable in compelling the possessor, by force of arms if necessary, to come to a discussion of the question, to accede to some reasonable mode of decision or accommodation, or, finally, to settle the point by articles of agreement upon an equitable fooling (§ 333).
If the subject of the dispute be an injury received, the offended party ought to follow the rules we have just established. His own advantage, and that of human society, require, that, previous to taking up arms, he should try every pacific mode of obtaining either a reparation of the injury, or a just satisfaction, unless there be substantial reasons to dispense with his recurrence to such measures (§ 334). This moderation, this circumspection, is the more becoming, and in general even indispensable, as the action which we look upon as an injury does not always proceed from a design to offend us, and is sometimes rather a mistake than an act of malice. It even frequently happens that the injury is done by inferior persons, without their sovereign having any share in it: and on these occasions it is natural to presume that he will not refuse us a just satisfaction. When some petty officers, not long since, violated the territory of Savoy in order to carry off from thence a noted smuggling chief, the King of Sardinia caused his complaints to be laid before the court of France; and Louis XV. thought it no derogation to his greatness to send an ambassador extraordinary to Turin to give satisfaction for that violence. Thus an affair of so delicate a nature was terminated in a manner equally honourable to the two kings.
When a nation cannot obtain justice, whether for a wrong or an injury, she has a right to do herself justice. But before she declares war (of which we shall treat in the following book), there are various methods practised among nations, which remain to be treated of here. Among those methods of obtaining satisfaction, has been reckoned what is called the law of retaliation, according to which we make another suffer precisely as much evil as he has done. Many have extolled that law, as being founded in the strictest justice: and can we be surprised at their having proposed it to princes, since they have presumed to make it a rule even for the deity himself? The ancients called it the law of Rhadamanthus. The idea is wholly derived from the obscure and false notion which represents evil as essentially and in its own nature worthy of punishment. We have shown above (Book I. § 169), what is the true origin of the right of punishing;4 whence we have deduced the true and just proportion of penalties (Book I. § 171). Let us say, then, that a nation may punish another which has done her an injury, as we have shown above (see Chap. IV. and VI. of this book), if the latter refuses to give her a just satisfaction: but she has not a right to extend the penalty beyond what her own safety requires. Retaliation, which is unjust between private persons, would be much more so between nations, because it would, in the latter case, be difficult to make the punishment fall on those who had done the injury. What right have you to cut off the nose and cars of the ambassador of a barbarian who had treated your ambassador in that manner? As to those reprisals in time of war which partake of the nature of retaliation, they are justified on other principles; and we shall speak of them in their proper place. The only truth in this idea of retaliation is, that, all circumstances being in other respects equal, the punishment ought to bear some proportion to the evil for which we mean to inflict it, the very object and foundation of punishment requiring thus much.
It is not always necessary to have recourse to arms, in order to punish a nation. The offended party may, by way of punishment, deprive her of the privileges she enjoyed in his dominions, seize on some of her property, if he has an opportunity, and detain it till she has given him sufficient satisfaction.
When a sovereign is not satisfied with the manner in which his subjects are treated by the laws and customs of another nation, he is at liberty to declare that he will treat the subjects of that nation in the same manner as his are treated. This is what is called retortion. There is nothing in this, but what is conformable to justice and sound policy. No one can complain on receiving the same treatment which he gives to others. Thus the king of Poland, elector of Saxony, enforces the law of escheatage only against the subjects of those princes who make the Saxons liable to it. The retortion may also take place with respect to certain regulations, of which we have no right to complain, and which we are even obliged to approve, though it is proper to guard against their effect by imitating them. Such are the orders relating to the importation or exportation of certain commodities or merchandise. On the other hand, circumstances frequently forbid us to have recourse to retortion. In this respect, each nation may act according to the dictate of her own prudence.
Reprisals are used between nation and nation in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to her own advantage till she obtains payment of what is due to her, together with interest and damages, or keep it as a pledge till she has received ample satisfaction. In the latter case, it is rather a stoppage or a seizure, than reprisals: but they are frequently confounded in common language. The effects thus seized on are preserved while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated, and then the reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared or hostilities commenced; and then also the effects seized may be confiscated.
It is only upon evidently just grounds, or for a well-ascertained and undeniable debt, that the law of nations allows us to make reprisals. For he who advances a doubtful pretension, cannot in the first instance demand any thing more than an equitable examination of his right. In the next place, before he proceed to such extremities, he should be able to show that he has ineffectually demanded justice, or at least that he has every reason to think it would be in vain for him to demand it. Then alone does it become lawful for him to take the matter into his own hands, and do himself justice. It would be too inconsistent with the peace, the repose, and the safety of nations, with their mutual commerce, and the duties which bind them to each other, that each one should be authorized to have immediate recourse to violent measures, without knowing whether there exist on the other side a disposition to do her justice, or to refuse it.
But, in order perfectly to understand this article, it must be observed, that if, in a disputable case, our adversary either refuses to pursue, or artfully evades the necessary steps for bringing the matter to the proof, if he does not candidly and sincerely accede to some pacific mode of terminating the dispute, especially if he is foremost in adopting violent measures, he gives justice to our cause which before was problematical: we may then have recourse to reprisals, or the seizure of his effects, in order to compel him to embrace the methods of conciliation which the law of nature prescribes. This is the last remaining effort previous to a commencement of open hostilities.
We have observed above (§ 81), that the wealth of the citizens constitutes a part of the aggregate wealth of a nation, that, between state and state, the private property of the members is considered as belonging to the body, and is answerable for the debts of that body (§ 82): whence it follows, that in reprisals we seize on the property of the subject just as we would on that of the state or sovereign. Every thing that belongs to the nation is subject to reprisals, whenever it can be seized, provided it be not a deposit intrusted to the public faith. As it is only in consequence of that confidence which the proprietor has placed in our good faith, that we happen to have such deposit in our hands, it ought to be respected, even in case of open war. Such is the conduct observed in France, England, and elsewhere, with respect to the money which foreigners have placed in the public funds.
He who makes reprisals against a nation on the property of its members indiscriminately, cannot be taxed with seizing the property of an innocent person for the debt of another: for, in this case, the sovereign is to compensate those of his subjects on whom the reprisals fall; it is a debt of the state or nation, of which each citizen ought only to pay his quota.
It is only between state and state that all the property of the individuals is considered as belonging to the nation. Sovereigns transact their affairs between themselves; they carry on business with each other directly, and can only consider a foreign nation as a society of men who have but one common interest. It belongs therefore to sovereigns alone to make and order reprisals on the footing we have just described. Besides, this violent measure approaches very near to an open rupture, and is frequently followed by one. It is, therefore, an affair of too serious a nature to be left to the discretion of private individuals. And accordingly we see, that in every civilized state, a subject who thinks himself injured by a foreign nation, has recourse to his sovereign, in order to obtain permission to make reprisals. This is what the French call applying for letters of marque.
We may make reprisals against a nation not only for the actions of the sovereign, but also for those of his subjects: and this may take place when the state or the sovereign participates in the act of his subject, and fakes it upon himself, which he may do in several ways, as we have shown in Chap. VI. of this Book.
In the same manner the sovereign demands justice, or makes reprisals, not only for his own concerns, but also for those of his subjects, whom he is bound to protect, and whose cause is that of the nation.
But to grant reprisals against a nation in favour of foreigners, is to set himself up as a judge between that nation and those foreigners; which no sovereign has a right to do. The cause of reprisals ought to be just: they ought even to be grounded on a denial of justice, either an actual denial, or one which there is good reason to apprehend (§ 343). Now, what right have we to judge whether the complaint of a stranger against an independent state is just, if he has really been denied justice? If it be objected, that we may espouse the quarrel of another state in a war that appears to us to be just, to assist her, and even to unite with her, the case is different. In granting succours against a nation, we do not detain her property or her people that happen to be within our territories under the public faith; and in declaring war against her, we suffer her to withdraw her subjects and her effects, as will hereafter appear. In the case of reprisals granted to our own subjects, a nation cannot complain that we violate the public faith in seizing on her people or her property; because we are under no other obligation to grant security to that property and those people, than what arises from a reasonable supposition that their nation will not, in the first instance, violate, with respect to us or our subjects, the rules of justice which nations ought to observe towards each other. If she violate them, we have a right to obtain satisfaction; and the mode of reprisals is more easy, safe, and mild, than that of war. We cannot urge the same arguments in justification of reprisals ordered in favour of foreigners for the security we owe to the subjects of a foreign power does not depend, as a condition, on the security which that power shall grant to all other nations, to people who do not belong to us, and are not under our protection. England having, in 1662, granted reprisals against the United Provinces in favour of the knights of Malta, the states of Holland asserted, with good reason, that, according to the law of nations, reprisals can only be granted to maintain the rights of the state, and not for an affair in which the nation has no concern.
The individuals, who by their actions have given cause for just reprisals, are bound to indemnify those on whom they fall; and the sovereign ought to compel them to do it. For we are under an obligation to repair the damage we have occasioned by our own fault. And, although the sovereign, by refusing justice to the offended party, has brought on the reprisals against his subjects, those who were the first cause of them do not become the less guilty: the fault of the sovereign does not exempt them from repairing the consequences of theirs. However, if they were ready to give satisfaction to the party whom they had injured or offended, and their sovereign has prevented their doing it, they are not bound to do any thing more in that case, than they would before have been obliged to do in order to prevent the reprisals; and it is the sovereign's duty to repair the additional damage, which is the consequence of his own fault (§ 345).
We have said (§ 343) that we ought not to make reprisals, except when we are unable to obtain justice. Now, justice is refused in several ways: First, by a denial of justice, properly so called, or by a refusal to hear your complaints or those of your subjects, or to admit them to establish their right before the ordinary tribunals. Secondly, by studied delays, for which no good reasons can be given delays equivalent to a refusal, or still more ruinous. Thirdly, by an evidently unjust and partial decision. But it is necessary that this injustice should be manifest and palpable. In all cases susceptible of doubt, a sovereign ought not to listen to the complaints of his subjects against a foreign tribunal, nor to attempt to screen them from the effects of a sentence passed in due form: for that would be the means of exciting continual troubles. The law of nations directs that states should reciprocally pay that kind of deference to each other's jurisdiction, for the same reason as the civil law ordains, within the state, that every definitive sentence, passed in due form, shall be esteemed just. Between nation and nation the obligation is neither so express nor so extensive: but it cannot be denied, that it is highly conducive to their peace and conformable to their duties towards human society, to oblige their subjects, in all doubtful cases, and, unless where there is a manifest wrong done to them, to submit to the sentences of the foreign tribunals before which their causes have been tried. (See above, § 84).
As we may seize the things which belong to a nation, in order to compel her to do justice, we may equally, for the same reason, arrest some of her citizens, and not release them till we have received full satisfaction. This is what the Greeks called Androlκpsia. At Athens the law permitted the relatives of him who had been assassinated in a foreign country, to seize three of the inhabitants of that country, and to detain them till the murderer was punished or delivered up. But, in the practice of modern Europe, this method is seldom resorted to, except with a view to obtain satisfaction for an injury of the same nature that is to say, to compel a sovereign to release a person whom he detains unjustly.
The persons, however, who are thus arrested, being detained only as a security, or pledge, in order to oblige a nation to do justice if their sovereign obstinately persists in refusing it, we cannot take away their lives, or inflict any corporal punishment upon them, for a refusal of which they are not guilty. Their property, their liberty itself, may be staked for the debts of the state; but not their lives, of which man has not the power of disposing. A sovereign has no right to put to death the subjects of a state which has done him an injury, except when they are engaged in war; and we shall see, elsewhere, what it is that gives him that right.
But the sovereign is authorized to employ forcible means against those who resist him in the exertion of his right, and to pursue such means as far as is necessary to overcome their unjust resistance. It is therefore lawful to repel those who undertake to oppose the making of just reprisals: and if, for that purpose, it be necessary to proceed even so far as to put them to death, the whole blame of that misfortune is imputable to their unjust and inconsiderate resistance. In such a case, Grotius would have us rather abstain from making reprisals. Between private persons, and for things that are not of the highest importance, it is certainly worthy, not only of a Christian, but in general, of every man of principle, rather to abandon his right than to kill the person who unjustly resists him. But, between sovereigns, the case is otherwise. To suffer themselves to be bullied, would be attended with consequences of too serious a nature. The true and just welfare of the state is the grand rule: moderation is ever laudable in itself; but the conductors of nations ought to practise that virtue so far only as it is consistent with the happiness and safety of their people.
After having demonstrated the lawfulness of making reprisals when we can no otherwise obtain justice, we may thence readily conclude that a sovereign is not justifiable in making forcible opposition to, or waging war against, the party, who, by ordering or making reprisals in such a case, only exerts his just right.
And as the law of humanity directs nations as well as individuals ever to prefer the gentlest measures, when they are sufficient to obtain justice whenever a sovereign can, by the mode of reprisals, procure a just indemnification or a suitable satisfaction, he ought to confine himself to this method, which is less violent and less fatal than war. On this subject, I cannot avoid noticing an error which is too general to be wholly disregarded. If it happens that a prince, having reason to complain of some injustice or some acts of hostility, and not finding his adversary disposed to give him satisfaction, determines to make reprisals with the view of endeavouring to compel him to listen to the voice of justice before he proceeds to an open rupture, if, without a declaration of war, he seizes on his effects, his shipping, and detains them as pledges, you hear certain men cry out that this is robbery. If that prince had at once declared war, they would not have said a word; they would perhaps have praised his conduct. Strange forgetfulness of reason, and of every sound principle! Would we not, at this rate, be tempted to suppose that nations were bound to observe the laws of chivalry, to challenge each other to the lists, and decide their quarrels like a pair of doughty champions engaged in regular duel? It is the duty of sovereigns attentively to maintain the rights of their people, and to obtain justice by every lawful means still, however, preferring the gentlest methods: and we again repeat the assertion it is evident that the mode of reprisals, of which we are speaking, is infinitely more gentle and less fatal than that of war. But since, between powers whose strength is nearly equal, reprisals often lead to war, they ought not to be attempted, except in the last extremity. In such circumstances, the prince who has recourse to that expedient, instead of proceeding to an open rupture, is undoubtedly entitled to praise for his moderation and prudence.
Those who run to arms without necessity, are the scourges of the human race, barbarians, enemies to society, and rebellious violators of the laws of nature, or rather, the laws of the common father of mankind.
There are cases, however, in which reprisals would be justly condemnable, even when a declaration of war would not be so: and these are precisely those cases in which nations may with justice take up arms. When the question which constitutes the ground of a dispute, relates, not to an act of violence, or an injury received, but to a contested right, after an ineffectual endeavour to obtain justice by conciliatory and pacific measures, it is a declaration of war that ought to follow, and not pretended reprisals, which, in such a case, would only be real acts of hostility without a declaration of war, and would be contrary to public faith as well as to the mutual duties of nations. This will more evidently appear, when we shall have explained the reasons which establish the obligation of declaring war previous to a commencement of hostilities.
But if, from particular conjunctures, and from the obstinacy of an unjust adversary, neither reprisals, nor any of the methods of which we have been treating, should prove sufficient for our defence, and for the protection of our rights, there remains only the wretched and melancholy alternative of war, which will be the subject of the following book.