IV. tates whether to call this obligation a civil, or only CHAP. 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 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 comprize engagements towards foreign states. † treaties. 111. We now return from what, in strict lan- Public guage, 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 aggrandizement of the common enemy of Christendom. Another, and more extensive head in the casuistry of nations 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 * § 6. + Contractibus vero eorum qui sine jure imperium invaserunt, non tenebuntur populi aut veri reges, CHAP. IV. Their interpretation. 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 recognized 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 intention must usually depend on words, we should 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 * C. 15. !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 statutes; and it seems, (wherever that which is favourable in one sense, is not odious in another) the most equitable principle in public conventions. The celebrated question, the cause, or, as Polybius more truly calls it, the pretext of the second Punic war, whether the terms of a treaty binding each party not to attack the allies of the other will comprehend those who had entered subsequently into alliance, seems, but rather on doubtful grounds, to be decided in the negative. Several other cases from history are agreeably introduced in this chapter.* 113. It is often, he observes, important to ascertain, whether a treaty be personal or real, that is, whether it affect only the contracting sovereign or the state. The treaties of republics are always real or permanent, even if the form of government should become monarchical; but the converse is not true as to those of kings, which are to be interpreted according to the probable mean * C. 16. CHAP. IV. IV. CHAP. ing where there are no words of restraint or extension. A treaty subsists with a king, though he may be expelled by his subjects; nor is it any breach of faith to take up arms against an usurper with the lawful sovereign's consent. This is not a doctrine which would now be endured.* Obligation to repair injury. 114. Besides those rules of interpretation which depend on explaining the words of an engagement, there are others which must sometimes be employed to extend or limit the meaning beyond any natural construction. Thus in the old lawcase, a bequest, in the event of the testator's posthumous son 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 and of civil society to all which the laws have accorded him. Hence a correlative right arises, but a right which is to be distinguished from fitness or merit. The jurists were accustomed to treat expletive justice, which consists in giving to every one what is strictly his own, separately IV. from attributive justice, the equitable and right CHAP. dispensation of all things according to desert. With the latter Grotius has nothing to do; nor is he to be charged with introducing the distinction of perfect and imperfect rights, if indeed those phrases are as objectionable as some have accounted them. In the far greater part of this chapter he considers the principles of this important province of natural law, the obligation to compensate damage, rather as it affects private persons than sovereign states. As, in most instances, this falls within the jurisdiction of civil tribunals, the rules laid down by Grotius may to a hasty reader seem rather intended as directory to the judge, than to the conscience of the offending party. This however is not by any means the case; he is here, as almost every where else, a master in morality and not 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.* 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. This is in the 8th title of the 4th book of the Institutes: Si quadrupes pauperiem fecerit. Pau- |