The Online Library of Liberty

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• Introduction
• Note On the Text
• Acknowledgments
• Volume 1: The Principles of Natural Law
• Part I: General Principles of Right.
• Chapter I: Of the Nature of Man Considered With Regard to Right: of the Understanding, and Whatever Is Relative to This Faculty.
• Chapter II: Continuation of the Principles Relative to the Nature of Man. of Will and Liberty.
• Chapter III: That Man Thus Constituted, Is a Creature Capable of Moral Direction, and Accountable For His Actions.
• Chapter IV: Further Inquiry Into What Relates to Human Nature, By Considering the Different States of Man.
• Chapter V: That Man Ought to Square His Conduct By Rule; the Method of Finding Out This Rule; and the Foundations of Right In General.
• Chapter VI: General Rules of Conduct Prescribed By Reason. of the Nature and First Foundations of Obligation.
• Chapter VII: Of Right Considered As a Faculty, and of the Obligation Thereto Corresponding.
• Chapter Viii *: of Law In General.
• Chapter IX: Of the Foundation of Sovereignty, Or the Right of Commanding.
• Chapter X: Of the End of Laws; of Their Characters, Differences, &c.
• Chapter XI: Of the Morality of Human Actions. *
• Part II: Of the Law of Nature.
• Chapter I: In What the Law of Nature Consists, and That There Is Such a Thing. First Considerations Drawn From the Existence of God and His Authority Over Us.
• Chapter II: That God, In Consequence of His Authority Over Us, Has Actually Thought Proper to Prescribe to Us Laws Or Rules of Conduct.
• Chapter III: Of the Means By Which We Discern What Is Just and Unjust, Or What Is Dictated By Natural Law; Namely, 1. Moral Instinct, and 2. Reason.
• Chapter IV: Of the Principles From Whence Reason May Deduce the Law of Nature. *
• Chapter V: That Natural Laws Have Been Sufficiently Notified; of Their Proper Characteristics, the Obligation They Produce, &c.
• Chapter VI: Of the Law of Nations.
• Chapter VII: Whether There Is Any Morality of Actions, Any Obligation Or Duty, Antecedent to the Laws of Nature, and Independent of the Idea of a Legislator? 1
• Chapter VIII: Consequences of the Preceding Chapter: Reflections On the Distinctions of Just, Honest, and Useful.
• Chapter IX: Of the Application of Natural Laws to Human Actions; and First of Conscience. †
• Chapter X: Of the Merit and Demerit of Human Actions; and of Their Imputation Relative to the Laws of Nature. *
• Chapter XI: Application of Those Principles to Different Species of Actions, In Order to Judge In What Manner They Ought to Be Imputed.
• Chapter XII: Of the Authority and Sanction of Natural Laws † and 1. of the Good Or Evil That Naturally and Generally Follows From Virtue Or Vice.
• Chapter XIII: Proofs of the Immortality of the Soul. That There Is a Sanction, Properly So Called, In Respect to Natural Law. 1
• Chapter XIV: That the Proofs We Have Alledged Have Such a Probability and Fitness, As Renders Them Sufficient to Fix Our Belief, and to Determine Our Conduct.
• Volume 2: The Principles of Politic Law
• Part I: Which Treats of the Origin and Nature of Civil Society, of Sovereignty In General, of Its Peculiar Characteristic, Limitations, and Essential Parts.
• Chapter I: Containing a Few General and Preliminary Reflections, Which Serve As an Introduction to This and the Following Parts.
• Chaper II: Of the Real Origin of Civil Societies.
• Chapter III: Of the Right of Congruity Or Fitness With Regard to the Institution of Civil Society, and the Necessity of a Supreme Authority: of Civil Liberty; That It Is Far Preferable 1 to Natural Liberty, and That the State Is of All Human Conditions
• Chapter IV: Of the Essential Constitution of States, and of the Manner In Which They Are Formed.
• Chapter V: Of the Sovereign, Sovereignty, and the Subjects.
• Chapter VI: Of the Immediate Source, and Foundation of Sovereignty.
• Chapter VII: Of the Essential Characters of Sovereignty, Its Modifications, Extent, and Limits.
• Chapter VIII: Of the Parts of Sovereignty, Or of the Different Essential Rights Which It Includes.
• Part II: In Which Are Explained the Different Forms of Government, the Ways of Acquiring Or Losing Sovereignty, and the Reciprocal Duties of Sovereigns and Subjects.
• Chapter I: Of the Various Forms of Government.
• Chapter II: An Essay On This Question, Which Is the Best Form of Government?
• Chapter III: Of the Different Ways of Acquiring Sovereignty.
• Chapter IV: Of the Different Ways of Losing Sovereignty.
• Chapter V: Of the Duties of Subjects In General.
• Chapter VI: Of the Inviolable Rights of Sovereignty, of the Deposing of Sovereigns, of the Abuse of the Supreme Power, and of Tyranny.
• Chapter VIII: Of the Duty 1 of Sovereigns.
• Part III: A More Particular Examination of the Essential Parts of Sovereignty, Or of the Different Rights of the Sovereign, With Respect to the Internal Administration of the State, Such As the Legislative Power, the Supreme Power In Matters of Religion,
• Chapter I: Of the Legislative Power, and the Civil Laws Which Arise From It.
• Chapter II: Of the Right of Judging the Doctrines Taught In the State: of the Care Which the Sovereign Ought to Take to Form the Manners of His Subjects.
• Chapter III: Of the Power of the Sovereign In Matters of Religion.
• Chapter IV: Of the Power of the Sovereign Over the Lives and Fortunes of His Subjects In Criminal Cases.
• Chapter V: Of the Power of Sovereigns Over the Bona Reipublicae, 1 Or the Goods Contained In the Commonwealth.
• Part IV: In Which Are Considered the Different Rights of Sovereignty With Respect to Foreign States; the Right of War, and Every Thing Relating to It; Public Treaties, and the Right of Ambassadors.
• Chapter I: Of War In General, and First of the Right of the Sovereign, In This Respect, Over His Subjects.
• Chapter II: Of the Causes of War.
• Chapter III: Of the Different Kinds of War.
• Chapter IV: Of Those Things Which Ought to Precede War.
• Chapter V: General Rules to Know What Is Allowable In War.
• Chapter VI: Of the Rights Which War Gives Over the Persons of the Enemy, and of Their Extent and Bounds.
• Chapter VII: Of the Rights of War Over the Goods of an Enemy.
• Chapter VIII: Of the Right of Sovereignty Acquired Over the Conquered.
• Chapter IX: Of Public Treaties In General.
• Chapter X: Of Compacts Made With an Enemy.
• Chapter XI: Of Compacts With an Enemy, Which Do Not Put an End to the War.
• Chapter XII: Of Compacts Made, During the War, By Subordinate Powers, As Generals of Armies, Or Other Commanders.
• Chapter XIII: Of Compacts Made With an Enemy By Private Persons.
• Chapter XIV: Of Public Compacts Which Put an End to War.
• Chapter XV: Of the Right of Ambassadors.

CHAPTER XII

Of compacts made, during the war, by subordinate powers, as generals of armies, or other commanders.

I. All that has been hitherto said, concerning compacts between enemies, relates to those made by sovereign powers. But since princes do not always conclude such agreements themselves, we must now enquire into treaties made by generals, or other inferior commanders.

II. In order to know whether these engagements oblige the sovereign, the following principles will direct us.

1°. Since every person may enter into an engagement, either by himself or by another, it is plain that the sovereign is bound by the compacts made by his ministers or officers, in conse-<344>quence of the full powers and orders expressly given them.

2°. He that gives a man a certain power, is reasonably supposed to have given him whatever is a necessary consequence and appendage of that power, and without which it cannot be exercised. But he is not supposed to have granted him any thing further.

3°. If he, who has had a commission to treat, has kept within the bounds of the power annexed to his office, though he acts contrary to his private instructions, the sovereign is to abide by what he has done; otherwise we could never depend on engagements contracted by proxy.

4°. A prince is also obliged by the act of his ministers and officers, though done without his orders, if he has ratified the engagements they have made, either by an express consent, and then there is no difficulty, or in a tacit manner; that is to say, if being informed of what has passed, he yet permits things to be done, or does them himself, which cannot reasonably be referred to any other cause, than the intention of executing the engagements of his minister, though contracted without his participation.

5°. The sovereign may also be obliged to execute the engagements contracted by his ministers without his orders, by the law of nature, which forbids us to enrich ourselves at another’s expence. Equity requires, that in such circumstances we should exactly observe the conditions of the contract, though concluded by ministers who had not full powers.<345>

6°. These are the general principles of natural equity, in virtue of which sovereigns may be more or less obliged to stand to the agreement of their ministers. But to what has been said, we must add this general exception: unless the laws and customs of the country have regulated it otherwise, and these be sufficiently known to the persons with whom the agreement is made.

7°. Lastly, if a public minister exceeds his commission, so that he cannot perform what he has promised, and his master is not obliged to it, he himself is certainly bound to indemnify the person with whom he has treated. But if there should be any deceit on his part, he may be punished for it, and his person, or his goods, or both, are liable to be seized, in order to make a recompence.1

III. Let us apply these general principles to particular examples.

1°. A commander in chief cannot enter into a treaty that regards the causes and consequences of the war; for the power of making war, in whatever extent it has been given, does not imply the power of finishing it.

2°. Neither does it belong to generals to grant truces for a considerable space of time; for 1°. that does not necessarily depend on their commission. 2°. The thing is of too great consequence to be left entirely to their discretion. 3°. And lastly, circumstances are not generally so pressing, as not to admit of time to consult the sovereign; which a general ought to do, both in duty and prudence, as much as possible, even with respect to things which he has a power to transact of himself.<346>

Much less, therefore, can generals conclude these kinds of truces, which withdraw all the appearance of war, and come very near a real peace.

3°. With respect to truces of a short duration, it is certainly in the power of a general to make them; for example, to bury the dead, &c.2

IV. Lieutenant-generals, or even inferior commanders, may also make particular truces, during the attack, for instance, of a body of the enemy intrenched, or in the siege of a town; for this being often very necessary, it is reasonably presumed, that such a power must needs be included in the extent of their commission.

V. But a question here arises, whether these particular truces oblige only the officers who granted them, and the troops under their command, or whether they bind the other officers, and even the commander in chief? Grotius declares for the first opinion, though the second appears to me the best founded; for 1°. since we suppose that it is in consequence of the tacit consent of the sovereign, that such a truce has been granted by an inferior commander, no other officer, whether equal or superior, can break the agreement, without indirectly wounding the authority of the sovereign.

2°. Besides, this would lay a foundation for fraud and distrusts, which might tend to render the use of truces, so necessary on several occasions, useless and impracticable.3

VI. It does not belong to a general to release per-<347>sons taken in war, nor to dispose of conquered sovereignties and lands.4

VII. But it is certainly in the power of generals to grant, or leave things, which are not as yet actually possessed: because in war many cities, for example, and often men, surrender themselves, upon condition of preserving their lives and liberties, or sometimes their goods; concerning which the present circumstances do not commonly allow time sufficient to consult the sovereign. Inferior commanders ought also to have this right, concerning things within the extent of their commission.

VIII. In fine, by the principles here established, we may easily judge of the conduct of the Roman people, with respect to Bituitus king of the Arverni, and to the affair of the Caudine Forks.

[1. ]This paragraph is loosely based on DNG VIII.9 §§12–13 and DGP III.22 §§2–4.

[2. ]See DGP III.22 §7. The last remark on short truces is in line with Pufendorf, DNG VIII.7 §13, against Grotius, DGP III.22 §8. Barbeyrac presents the Pufendorfian standpoint and elaborates on it in note 1 to the latter paragraph.

[3. ]Based on DGP III.22 §8 note 2.

[4. ]For this and the next paragraph, see DGP III.22 §9.