certain and arbitrary, so the finer emotions of the conscience would loose all their moral efficacy, by restraining the duties of justice to that which can be enforced by the law. In the course of this twelfth chapter we come to a question much debated in the time of Grotius, the lawfulness of usury. After admitting, against the common opinion, that it is not repugnant to the law of nature, he yet maintains the prohibition in the Mosaic code to be binding on all mankind.* An extraordinary position, it would seem, in one who had denied any part of that system to be truly an universal law. This was, however, the usual determination of casuists; but he follows it up, as was also usual, with so many exceptions as materially relax and invalidate the application of his rule. 109. The next chapter, on promissory oaths, is a corollary to the last two. It was the opinion of Grotius, Promissory as it had been of all theologians, and, in truth, of oaths. all mankind, that a promise or contract not only becomes more solemn, and entails on its breach a severer penalty, by means of this adjuration of the Supreme Being, but may even acquire a substantial validity by it in cases where no prior obligation would subsist. † This chapter is distinguished by a more than usually profuse erudition. But notwithstanding the rigid observance of oaths which he deems incumbent by natural and revealed law, he admits of a considerable authority in the civil magistrate, or other superior, as a husband or father, to annul the oaths of inferiors beforehand, or to dispense with them afterwards; not that they can release a moral obligation, but that the obligation itself is incurred under a tacit condition of their consent. And he seems, in rather a singular manner, to hint a kind of approval of such dispensations by the church. ‡ Engage 110. Whatever has been laid down by Grotius in the last three chapters as to the natural obligations of mankind, has an especial reference to the main purport ments of of this great work, the duties of the supreme wards power. But the engagments of sovereigns give rise kings to subjects. olim a principibus, nunc ipsorum principum voluntate, quo magis cautum sit pietati, ab ecclesiæ præsidibus exercentur men. to many questions which cannot occur in those of private In the chapter which ensues, on the promises, oaths, and contracts of sovereigns, he confines himself to those engagments which immediately affect their subjects. These it is of great importance, in the author's assumed province of the general confessor or casuist of kings, to place on a right footing; because they have never wanted subservient counsellors, who would wrest the law of conscience, as well as that of the land, to the interests of power. Grotius, in denying that the sovereign may revoke his own contracts, extends this case to those made by him during his minority, without limitation to such as have been authorised by his guardians.* His contracts with his subjects create a true obligation, of which they may claim, though not enforce, the performance. He hesitates whether to call this obligation a civil or only a natural one; and in fact it can only be determined by positive law. Whether the successors of a sovereign are bound by his engagements, must depend, he observes, on the political constitution, and on the nature of the engagement. Those of an usurper he determines not to be binding, which should probably be limited to domestic contracts, though his language seems large enough to comprise engagements towards foreign states.‡ Public treaties. 111. We now return from what, in strict language, may pass for a long digression, though not a needless one, to the main stream of international law. The title of the fifteenth chapter is on Public Treaties. After several divisions, which it would at present be thought unnecessary to specify so much at length, Grotius enters on a question not then settled by theologians, whether alliances with infidel powers were in any circumstances lawful. Francis I. had given great scandal in Europe by his league with the Turk. And though Grotius admits the general lawfulness of such alliances, it is under limitations which would hardly have borne out the court of France in promoting the aggrandisement of the common enemy of Christendom. Another, and more extensive head in the casuistry of nations * C. 14. § 1. † $ 6. Contractibus vero eorum qui sine jure imperium invaserunt, non tene buntur populi aut veri reges, nam hi jus obligandi populum non habuerunt. § 14. relates to treaties that have been concluded without the authority of the sovereign. That he is not bound by these engagements is evident as a leading rule; but the course which, according to natural law, ought to be taken in such circumstances is often doubtful. The famous capitulation of the Roman army at the Caudine Forks is in point. Grotius, a rigid casuist, determines that the senate were not bound to replace their army in the condition from which the treaty had delivered them. And this seems to be a rational decision, though the Romans have sometimes incurred the censure of ill faith for their conduct. But if the sovereign has not only by silence acquiesced in the engagement of his ambassador or general, which of itself, according to Grotius, will not amount to an implied ratification, but recognised it by some overt act of his own, he cannot afterwards plead the defect of sanction. * 112. Promises consist externally in words, really in the intention of the parties. But as the evidence of this Their interintention must usually depend on words, we should pretation. adapt our general rules to their natural meaning. Common usage is to determine the interpretation of agreements, except where terms of a technical sense have been employed. But if the expressions will bear different senses, or if there is some apparent inconsistency in different clauses, it becomes necessary to collect the meaning conjecturally, from the nature of the subject, from the consequences of the proposed interpretation, and from its bearing on other parts of the agreement. This serves to exclude unreasonable and unfair constructions from the equivocal language of treaties, such as was usual in former times to a degree which the greater prudence of contracting parties, if not their better faith, has rendered impossible in modern Europe. Among other rules of interpretation, whether in private or public engagements, he lays down one, familiar to the jurists, but concerning the validity of which some have doubted, that things favourable, as they style them, or conferring a benefit, are to be construed largely; things odious, or onerous to one party, are not to be stretched beyond the letter. Our own law, as is well known, adopts this distinction between remedial and penal * C. 15. men. pro hi to many questions which cannot occur in those counsellors, who would wrest the FROM 1600 TO 1650. 559 aties that have been concluded without the autho law, ine Forks is in point. Grotius, a from which the treaty had be a rational decision, curred the censure of zen has not only ambassador be that of the land, to the interests of natural one; and in fa his engagements, constitution, and of an usurper probably be guage seem foreign st 111. Public treati titl P J ed ac are no words subsists with a king, nis subjects; nor is it any arms against an usurper with the Consent. This is not a doctrine which dured.t des those rules of interpretation which depend ning the words of an engagement, there are others must sometimes be employed to extend or limit the wing beyond any natural construction. Thus in the old case, a bequest, in the event of the testator's posthumous dying, was held valid, where none was born, and instances of this kind are continual in the books of jurisprudence. It is equally reasonable sometimes to restrain the terms of a promise, where they clearly appear to go beyond the design of the promiser, or where supervenient circumstances indicate an exception which he would infallibly have made. A few sections in this place seem, perhaps, more fit to have been inserted in the eleventh chapter. 115. There is a natural obligation to make amends for injury to the natural rights of another, which is extended by means of the establishment of property injury. and of civil society to all which the laws have ac Obligation to repair im.* be The ju Hence a correlative right arises, but a right distinguished from fitness or merit. istomed to treat expletive justice, which consists ery one what is strictly his own, separately stice, the equitable and right dispensation ing to desert. With the latter Grotius r is he to be charged with introducing and imperfect rights, if indeed those le as some have accounted them. is chapter he considers the prinince of natural law, the oblirather as it affects private s, in most instances, this ribunals, the rules laid FROM 1600 TO 1650. 559 es that have been concluded without the autho That he is not bound by these engage ading rule; but the famous capitulation of the gyere not bound to the treaty had decision, re of ght to be taken in such circum in point. Grotius, a course which, J reader seem rather intended than to the conscience of the offend , nowever, is not by any means the case; he almost every where else, a master in morality and ot in law. That he is not obsequiously following the Roman law will appear by his determining against the natural responsibility of the owner for injuries committed, without his fault, by a slave or a beast.t But sovereigns, he holds, are answerable for the piracies and robberies of their subjects when they are able to prevent them. This is the only case of national law which he discusses. But it is one of high importance, being in fact one of the ordinary causes of public hostility. This liability, however, does not exist, where subjects having obtained a lawful commission by letters of marque become common pirates, and do not return home. Rights by 116. Thus far, the author begins in the eighteenth chapter, we have treated of rights founded on natural law, with some little mixture of the arbitrary law of law of nanations. We come now to those which depend wholly on the latter. Such are the rights of ambassadors. We have now, therefore, to have recourse more to the usage of civilised people than to theoretical principles. The practice tions. peries, in the legal sense, which has also some classical authority, means damnum sine injuria. |