Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter XV: On Treaties and on Engagements made by Delegates, Exceeding their Power
Public ConventionsDivided into treaties, engagements, and other compactsDifference between treaties and the engagements made by delegates exceeding their powersTreaties founded on the law of natureTheir originTreaties founded on still more extensive principlesTreaties with those, who are strangers to the true religion, prohibited neither by the Jewish nor Christian lawCautions respecting such treatiesChristians bound to unite against the enemies of the Christian religionAmong a number of Allies in war, which of them have the first pretensions to assistanceTacit renewal of treatiesThe effect of perfidy in one of the contracting parties consideredHow far the unauthorized engagements of delegates are binding, when the sovereigns refuse to ratify themThe Caudian Convention consideredWhether the knowledge and silence of the Sovereign makes those unauthorized conventions bindingThe Convention of Luctatius considered.
I. ULPIAN1 has divided conventions into two kinds, public and private, and he has not explained a public convention upon the usual principles, but has confined it to a treaty of peace, which he alleges as his first example, and he has made use of the engagements entered into by the generals of two contending powers, as an instance of private conventions. By public conventions therefore he means those, which cannot be made but by the authority and in the name of the sovereign power, thus distinguishing them not only from the private contracts of individuals, but ALSO from the PERSONAL contracts of sovereigns themselves. And indeed private injuries and contracts, no less than public treaties frequently prove the origin of wars. And as private contracts have been already so amply discussed, the higher order of contracts, which come under the denomination of treaties, will necessarily form the leading part in our farther inquiries.
The ninth book of Livy may be consulted on the distinction between treaties and engagements, where the historian informs us, that treaties are those contracts, which are made by the express authority of the sovereign power, and in which the people invoke the divine vengeance on their heads, if they violate their engagements. Among the Romans the persons employed in declaring war and making peace, were in the conclusion of these solemn treaties, always accompanied by the principal herald, who took the oath in the name of the whole people. A sponsio, or ENGAGEMENT, is what was made by persons, who had no express commission for that purpose from the sovereign power, and whose acts consequently required a further ratification from the sovereign himself.2
The Senate of Rome, we are informed by Sallust, judged very properly in passing a decree, that no treaty could be made without their consent and that of the people. Livy relates that Hieronymus, king of Syracuse, having entered into a convention with Hannibal, sent afterwards to Carthage to have it converted by the state into a league. For which reason Seneca the elder has said, applying the expression to persons invested with a special commission for that purpose, that a treaty, negotiated by the general, binds the whole of the Roman people, who are supposed to have made it.
But in monarchies, the power of making treaties belongs to the king alone, a maxim which the language of poetry, no less then the records of history, shews to have been held in all ages. Euripides, whose sentiments are always conformable to nature, and popular opinion, in his Tragedy of the Suppliants, says, it rests with Adrastus to take the oath, to whom, as sovereign, the sole right of binding the country by treaties belongs.
No subordinate magistrates have such a power of binding the people; nor will the acts of a smaller portion bind the greater, an argument used in favour of the Romans against the Gauls. For there was a majority of the people with Camillus, the dictator.
But it remains to be considered how far the acts of those, who have engaged for the people, without any public authority, are binding. Perhaps it may be said that the contracting parties have discharges their responsibility when they have done all in their power towards the fulfilment of their obligation. That might be the case in promises, but the obligation in public contracts is of a stricter kind. For the party contracting requires something in return for the engagements he makes. Hence the civil law, which rejects all promises made by one person for the performance of some act by another, renders him who engages for the ratification of a thing liable to pay damages and interest.
IV. The most accurate distinction in treaties, is that which makes the foundation of some rest purely upon the law of nature, and others upon the obligations, which men have either derived from the law of nature, or added to it. Treaties of the former kind are, in general, made, not only between enemies, as a termination of war; but in ancient times were frequently made, and, in some degree, thought necessary among men in the formation of every contract. This arose from that principle in the law of nature, which established a degree of kindred among mankind. Therefore it was unlawful for one man to be injured by another. And this natural justice universally prevailed before the deluge. But after that event, in process of time, as evil dispositions and habits gained grounds, it was by degrees obliterated. So that one peoples robbing and plundering another, even when no war had been commenced or declared, was deemed lawful. Epiphanius calls this the Scythian fashion. Nothing is more frequent in the writings of Homer than for men to be asked, if they are robbers? A question, as Thucydides informs us, by no means intending to convey reproach, but purely for information. In an ancient law of Solons mention is made of companies formed for robbery: and, we find from Justin, that, till the times of Tarquin, piracy was attended with a degree of glory.
In the law of the Romans it was a maxim, that nations, which had not entered into terms of amity, or into treaties with them were not to be considered as enemies. But if any thing belonging to the Romans fell into their hands, it became theirs; or any citizen of Rome, taken by them, became a slave; and the Romans would treat any person belonging to that nation, in the same manner. In this case the right or postliminium3 is observed. So at a remote period, before the times of the Peloponnesian war, the Corcyraeans were not considered as enemies by the Athenians, though there was no treaty of peace subsisting between them, as appears from the speech of the Corinthians given by Thucydides. Aristotle commends the practice of plundering barbarians, and in ancient Latium an enemy signified nothing but a foreigner.
In the class of treaties referred to in this section may be ranked those made between different states for the mutual preservation of the rights of hospitality and commerce, as far as they come under the law of nature. Arco makes use of this distinction, in his speech to the Achaeans, as reported by Livy, where he says he does not require an offensive and defensive alliance, but only such a treaty as may secure their rights from infringement by each other, or prevent them from harbouring the fugitive slaves of the Macedonians. Conventions of this kind were called by the Greeks, strictly speaking, PEACE in opposition to TREATIES.
V. Treaties founded upon obligations added to those of the law of nature are either equal, or unequal. Equal treaties are those, by which equal advantages are secured on both sides. The Greeks call them ALLIANCES, and sometimes alliances upon an equal scale. But treaties of the latter kind are more properly leagues than treaties, and where one of the parties is inferior in dignity, they are called INJUNCTIONS, or INJUNCTIONS ANNEXED TO COVENANTS. Demosthenes in his speech on the liberty of the Rhodians says, all nations ought to guard against forming such leagues, as approaching too near to servitude.
Treaties of both kinds, whether of peace or alliance are made from motives of some advantage to the parties. By equal treaties of peace, the restoration of prisoners, the restoration or cession of conquered places, and other matters providing for its due maintenance, are settled, a subject that will be more fully treated of hereafter, in stating the effects and consequences of war. Treaties of alliance upon equal conditions relate either to commerce, or to contributions for the joint prosecution of a war, or to other objects of equal importance. Equal treaties of commerce may vary in their terms. For instance it may be settled that no duties shall be imposed upon the goods of the subjects, belonging to each of the contracting powers: or that the duties upon their respective commodities shall be lower than the duties upon those of any other nation. The first of these examples may be found in an ancient treaty between the Romans and Carthaginians, in which there is a clause, making an exception of what is given to the notary and public crier. Or it may be settled that no higher duties than those existing at the time the treaty is made shall be imposed, or that they shall not be augmented beyond a certain rate.
So in alliances of war the contracting parties are required to furnish equal numbers of troops or ships, a kind of alliance which, as Thucydides explains it, calls upon the united powers to hold the same states for common enemies or friends: we find, in many parts of Livy, alliances of this description among states, for the mutual defence of their territories or for the prosecution of some particular war, or against some particular enemy, or against all states excepting their respective allies. Polybius has given as treaty of this kind, made between the Carthaginians and Macedonians. In the same manner the Rhodians bound themselves by treaty to assist Atigonus Demetrius against all enemies except Ptolemy. There are other objects too for which equal treaties are made. Thus one power may bind another to build no forts in their neighbourhood which might prove an annoyance, to give no encouragement to rebellious subjects, to allow the troops of an enemy no passage through their country.
VI. From equal treaties, the nature of unequal treaties may easily be understood. And where two powers contract, this inequality may be on the side either of the superior, or of the inferior power. A superior power may be said to make an unequal treaty, when it promises assistance without stipulating for any return, or gives greater advantages than it engages to receive. And on the part of the inferior power this inequality subsists when, as Isocrates says in his PANEGYRIC, her privileges are unduly depressed; so that engagements of this kind may be called injunctions or commands rather than treaties. And these not, or may not, be attended with a diminution of their sovereign power.
Such a diminution of sovereign power followed the second treaty between the Carthaginians and Romans, by which the former were bound to make no war but with the consent of the Roman people; so that from that time, Appian says, the Carthaginians were compelled by treaty to comply with the humour of the Romans. To this kind may be added a conditional surrender, except that it leads not to a DIMINUTION, but to an ENTIRE TRANSFER of the sovereign dignity and power.
TRANSITORY burdens are those, by which the payment of certain sums of money is imposed, the demolition of certain works and fortifications, the cession of certain countries and the delivery of ships or hostages are required. But PERMANENT conditions are those, which require the tribute of homage and submission from one power to another.
Nearly approaching to such treaties are those, by which one power is debarred from having any friends or enemies, but at the pleasure of another, or from allowing a passage and supplies to the troops of any state, with whom that power may be at war. Besides these there may be conditions of an inferior and less important kind; such as those, which prohibit the building of forts in certain places; maintaining armies, or having ships beyond a certain number; navigating certain seas, or raising troops in certain countries; attacking allies or supplying enemies. Some conditions indeed go so far as to prohibit a state from admitting refugees, and to demand annulling all former engagements with every other power. Numerous examples of such treaties are to be found in historians both ancient and modern.
VIII. In considering treaties, it is frequently asked, whether it be lawful to make them with nations, who are strangers to the Christian religion; a question, which, according to the law of nature, admits not of a doubt. For the rights, which it establishes, are common to all men without distinction of religion.
The gospel has made no change in this respect, but rather favours treaties, by which assistance in a just cause may be afforded even to those, who are strangers to religion. For to embrace opportunities of doing good to all men is not only permitted as laudable, but enjoined as a precept. For in imitation of God, who makes his sun to rise upon the righteous and the wicked, and refreshes them both with his gracious rain, we are commanded to exclude no race of men from their due share of our services. Yet, in equal cases, it admits of no doubt, that those within the pale of our own religious communion have a preferable claim to our support.
IX. In addition to the foregoing arguments we may observe that as all Christians are considered as members of one body, which are required to feel for the pains and sufferings of each other, this precept applies not only to individuals, but no nations and kings in their public capacity. For the rule of duty is not to be measured by the inclination of individuals, but by the injunctions of Christ. And in some cases the ravages of an impious enemy can only be opposed by a firm alliance among Christian kings, and governments. And it is a duty from which nothing, but inevitable necessity, and their immediate attention being engrossed by the prosecution of other wars, can excuse them.
X. Another question frequently arises, which is, when two states are engaged in war with each other, to which of them a power, equally allied to both, ought in preference to give assistance. Here too we must observe there can be no obligation to support unjust wars. On which account that confederate power, which has justice on its side, will have a claim to preference, if engaged in war with another not comprehended in the number of confederates, or even if engaged with one of the confederates themselves.
But if two powers engage in a war, equally unjust on both sides, a third power, united in confederacy with both, will prudently abstain from interference. Again, if two powers allied to us are engaged in a just war against others, with whom we have no connection; in the supplies of men or money that we furnish to either we ought to follow the rule, observed in the case of personal creditors.4
But if personal assistance, which cannot be divided, is required of the contracting party, in that case the preference must be given to the engagements of the longest standing. However the case of a subsequent treaty, which makes the engagements of a more binding and extensive nature, will form an exception to this rule.
XI. The tacit renewal of a treaty ought not to be presumed upon at the expiration of the period, limited for its continuance, unless certain acts be performed, which can expressly be construced as a renewal of it, and can be taken in no other sense.
XII. If one of the parties violates a treaty, such a violation releases the other from its engagements. For every clause has the binding force of a condition. And as an example of this, a passage from Thucydides may be quoted, where that historian says that for one power to accede to a new confederacy, and to desert an ally who has neglected to fulfil his engagements, is no breach of a treaty; but not to assist another power in conformity to sworn engagements amounts to a violation thereof. And this is generally true, except where it has been agreed to the contrary, that a treaty shall not be null and relinquished for trifling disgusts and miscarriages.
XIII. Conventions are as various and numerous as treaties, and the distinction made between them is owing more to the difference of power in those by whom they are made, than to any real difference in their own nature. But there are two particular points of inquiry materially connected with all conventions, the first of which relates to the extent of the negotiators obligation, when the sovereign or the state refuses to ratify a convention, whether he is bound to make an indemnity to the other party for the disappointment, to restore things to the situation they were in before he treated, or to deliver up his own person. The first opinion seems conformable to the Roman civil law, the second to equity as it was urged by the tribunes of the people, L. Livius, and J. Melius, in the dispute about the peace of Caudium;5 but the third is that most generally adopted, as was done respecting the two famous conventions of Caudium and Numantia. But there is one caution particularly to be observed, and that is, that the sovereign is no way bound by such unauthorised conventions, until he has ratified them. In the convention alluded to, if the Samnites had intended to bind the Roman people, they should have retained the army at Caudium, and sent ambassadors to the senate and people at Rome, to discuss the treaty, and learn upon what terms they chose to redeem their army.
XIV. Another question is, whether the knowledge and silence of the sovereign bind him to the observance of a convention. But here it is necessary to make a distinction between an absolute convention, and one made upon condition of its being ratified by the sovereign. For as all conditions ought to be literally fulfilled, such a condition, on failure of fulfilment, becomes void.
This principle was very properly observed in the convention made between Luctatius and the Carthaginians; to which the people refused to accede, as it had been made without their consent. A new treaty therefore was made by public authority.6
The next thing to be considered is, whether there may not be some act of consent besides silence. For without some visible act, silence is not of itself sufficient to warrant a probable conjecture of intention. But if certain acts are done which can be accounted for upon no other grounds than those of consent, they are supposed to ratify a treaty. Thus if the convention of Luctatius had contained many clauses, some of them relinquishing certain rights, and those clauses had been always duly observed by the Romans, such observance would be justly taken for a ratification of the treaty.
Note 1. The nature of oaths, contracts and promises having been so fully discussed in the preceding chapters, the translation proceeds from the thirteenth to the fifteenth chapter of the original, the fourteenth being in a great measure only a repetition of our authors former arguments upon the subject.TRANSLATOR. [back]
Note 2. On this subject the opinions of our author, and those of Vattel will reflect light upon each other. From the latter of whom, the following extracts will place the matter in a clear point of view. 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: 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 requiredas such reservation is usually understood to imply an express ratification, it is absolutely requisite that the treaty be 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 engagements would be nugatory and illusive. The foundation of this agreement can be no other, on either side, than the hope of such ratification.Vattel, b. ii. ch. xiv. sect. 208, 209, p. 219. The general of an army, he proceeds, 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 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.Ibid. sect. 210. p. 220. [back]
Note 3. The right of postliminium is that, in virture of which, persons and things taken by the enemy are restored to their former state, on coming again into the power of the nations to which they belonged. Vattel, b. iii. ch. xiv. sect. 204. [back]
Note 4. Personal creditors are in the Roman law called Chirographarii, because they commonly have some bond or note of hand for the debt. And where there are several such creditors, if they debtors estate is not sufficient to satisfy them all, each has his share assigned in proportion to the largeness of the debt, without any regard to the time, when it was contracted. But in mortgages it was different, the debt of longest standing was to be first satisfied.Barbeyrac. [back]
Note 5. When the Roman army had passed under the yoke at Caudium, upon their return, when the matter was referred to the senate, it was said that as the convention was made without the consent of the senate or people, the Roman people were not bound by it, and a proposal was made that those who had signed the treaty should again be given up to the enemy, thus the people would be released from the engagement. This proposal was agreed to, and a decree to that purpose passed. [back]
Note 6. Luctatius had inserted this clause that the agreement should be good and valid, only in case it was approved by the Roman people.Liv. lib. xxi. c. xix. See likewise Polybius, lib. iii. c. xxi. [back]