Front Page Titles (by Subject) CHAPTER XIV: Of the Promises, Contracts, and Oaths of those who have the Sovereign Power. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER XIV: Of the Promises, Contracts, and Oaths of those who have the Sovereign Power. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of the Promises, Contracts, and Oaths of those who have the Sovereign Power.
I.The Opinion of those refuted, who hold that Restitutions to the full which arise from the Civil Law, extend to the Acts of Kings as such; as also that Kings are not obliged by their own Oaths.I. 1. The Promises, Contracts, and Oaths of Kings, and of others who have a like Sovereign Power, have some particular Difficulties and Questions, concerning the Power they have in Regard to the Validity of their own Acts, the Right which their Subjects acquire thereby, and the Obligation they impose on their Successors. As to the first, the Query is, whether the King himself has Power to restore himself to the State he was in before, or to make void his own Contracts, or to absolve himself from his Oath, as in all these Cases he can his Subjects.1Bodin thinks that where a King is over-reached by Fraud, by Mistake, or by Fear, he may for the same Reasons be restored to his own Rights, and this both in Things that affect and lessen his Royal Prerogatives, and in those that relate to his private Fortune, as any of his Subjects might to theirs. To which he adds, that a King is not obliged by his Oaths, if the Contracts agreed on be such, as may be revoked by the Civil Law, tho’ the Contracts be agreeable to Honesty; and that he is not therefore bound, because he has sworn, but as any Man may be bound by just Covenants so far as another is interested in the Execution of them.
2. But we (as we have elsewhere distinguished) do here also distinguish between the Acts of Kings which they do as Kings, and the private Acts of those Kings. For what they do as Kings, is looked on as done by the whole Nation: But as the Laws made by the whole Body of the People,2 could have no Power over such Acts, because the Community is not superior to it self; so neither can the Laws of a King. Wherefore Restitution, which receives3 its Power only from the Civil<331> Law, ought not to take Place in Regard to such Contracts. And therefore neither are those Contracts to be excepted, which Kings make in their Minority.4
II.To what Acts of Kings the Laws extend, explained by several Distinctions.II. 1. If the People indeed have made a King, not with an absolute Power, but with the Restraint of some Laws, then what Acts he does contrary to those Laws, may be made void,1 either entirely, or in Part, because so far the People have reserved this Right to themselves. But if the King has a real and absolute Sovereignty, and yet holds not his Kingdom as his Property, that is, has no Power to alienate it, or any Part of it, or of its Revenues, all such Acts of his as shall tend to an Alienation, are void by the Law of Nature, because they relate to what is not his own, as we have proved already.
2. But the private Acts of a King are to be considered, not as the Acts of the Community, but as of one of its Members, and therefore done with a Design to follow the common Rule of the Laws; whence it is, that even the Laws which make void some Acts either simply, or if the injured Person desires, shall also take place here, as if it had been agreed on upon this Condition. Thus we see some Kings have taken their Advantage of the Laws against Extortion.2 Yet a King may, if he pleases, exempt from those Laws his own Acts, as well as those of his Subjects; but whether he intended to do so, must be gathered from Circumstances. [[3 If he do so, then the Case shall be determined by the mere Law of Nature: Provided, where the Laws make void any private Act, not in Favour of the Actor, but as his Punishment, those are of no Force against the Acts of Kings, nor any other penal Laws, nor any Thing whatever that carries a Constraint along with it. For to punish and to force must proceed from distinct Persons.4 Neither can the Compeller and the compelled be one Person, nor is it sufficient here to consider one and the same Person under different Respects.]]
III.When a King is obliged by his Oath, and when not.III. But a King may, by a preceding Act, make void his Oath as well as a private Man,1 if by a former Oath he has deprived himself of the Power to take<332> such an Oath; but by any after Act2 he cannot; because here also is required a Distinction of Persons. For those which are made void by an after Act, had before in them this Exception, Unless my Superior will not let me; which cannot be in the Oath of a King: And to swear that you shall be obliged to stand to what you promise, Unless you will your self, is very absurd, and contrary to the Nature of an Oath. And even tho’ an Oath can confer no Right on another, by Reason of some Fault in that Person, yet he who swears, is bound before God,3 as I said before; and thus are Kings also obliged by their Oaths, no less than private Men, tho’ Bodine be of another Opinion.
IV.How far a King is obliged to what he has promised without any Cause or Reason.IV. We have also shewed already, that full and absolute Promises being accepted, do naturally transfer a Right to another, which respects Kings equally with private Men. And therefore their Opinion is to be condemned, who say that Kings are not bound by the Promises which they have made without any Cause or Reason for so doing; which yet may be true in some Sense, as we shall see hereafter.
V.The use of what has been said of the force of the Laws about the Contracts of Kings.V. As to what we have said before, that the Civil Laws of a Kingdom have no Power over the Agreements and Contracts of the King, it is no more than what Vasquez has observed. But his Inferences from thence, that his buying and selling at no certain Price, his letting or hiring without any Rent agreed on, or giving any Thing away in Fee, without a Writing under his Hand,1 shall be valid, I cannot allow. For these Acts are done by him not as a King, but as any other Person would do. And over such Acts as these not only the general Laws of the Nation, but even the particular Laws of the Place, where the King resides, have Power. Because the King, for some special Reason, is considered there as a Member of that Corporation. And this is the Case, unless (as I said before) it shall appear by good Circumstances, that it was his Intention, that his Actions should be exempted from the Power of those Laws. But the other Example brought by Vasquez, concerning a Promise any way made,2 is very well grounded, and may be explained by what has been said above.
VI.In what Sense a King may be said to be obliged to his Subjects by the Law of Nature only or by the Civil Law too.VI. 1. What the Civilians generally maintain, that the Covenants which a King enters into with his Subjects, oblige by the Law of Nature only, and not by the Civil Law, is very obscure.1 For Authors sometimes abuse the Term of natural Obligation, by interpreting it to be what is naturally fair and honest, but not what is properly and strictly due: As for an Executor to pay entire Legacies, without deducting, as it was by the Falcidian Law allowed,2 a fourth Part, or to pay a just Debt, when the Creditor is incapacitated by the Law3 to receive it, or to return a<333> Kindness,4 none of which can be recovered by an Action of false Debt. But sometimes indeed they construe it more properly to be what does really oblige us, whether it transfer a Right to another, as in Contracts; or transfers none, as in an imperfect Promise accompanied with a full and firm Resolution. Maimonides the Jew, Duc. Dubit. Lib. III. Cap. LIV. makes an apt Distinction between these three, he says that whatsoever comes more than is due, falls under the Notion of חסך Bounty,5 which other Interpreters upon Prov. xx. 28. call פלגת הטרבח, 6 the excess or overplus of Goodness; that what is due in Strictness and Rigour, is called in Hebrew מנשפט Judgment; and that they stile what proceds from a Principle of Honesty, צרקה Justice, that is Equity. The Translator of Mat. xxiii. 23. distinguishes between ἔλεος, κρίσις, πίστις,7 where by the Word πίστις he Means what the Hellenists generally call δικαιοσύνη, righteousness: For κρίσις signifies what is strictly due, as you will find in 1 Macc. vii. 18. and viii. 32.
2. A Man may also be said to be civilly obliged by his own Act, either in this Sense, that the Obligation arise not from the mere Right of Nature, but from a Civil Right, or from both: Or in this Sense, that an Action in the Civil Law may lie against him. We therefore say, that from the Promises and Covenants, which a King makes with his Subjects, there may arise such a true and proper Obligation, as may confer a Right upon them; for such is the Nature of Promises and Contracts, even between God and Man, as we have shewed already. If the King engages himself, not as King, but as any other Person would do, the Civil Laws shall oblige him. But if they be done by him, as a King, the Civil Laws do not affect him; which Difference was not well observed by Vasquez. Nevertheless an Action may arise from any of these Acts, so far as to declare the Right of the Creditor, but no Compulsion can follow, on account of the Condition of the Persons we are dealing with. For that Subjects should force him, to whom they are subject, is not lawful, which Equals may do against Equals by the Right of Nature, and Superiors against Inferiors by the Civil Law.
VII.How a Right gained by Subjects may lawfully be taken away.VII. But we must also observe this, that a King may two Ways deprive his Subjects of their Right, either by Way of Punishment, or by Vertue of his eminent Power.1 But if he do it the last Way, it must be for some publick Advantage, and then the Subject ought to receive, if possible, a just Satisfaction for the Loss he suffers, out of the common Stock. This therefore, as it holds in other Things, so it does also in that Right which is obtained by Promise or Contract.<334>
VIII.The Distinction of Things gained by the Law of Nature and by the Civil Law, rejected.VIII. Nor must we by any Means allow that Distinction, which some make, of the Right acquired by the Law of Nature,1 and that by the Civil Law. For the King has an equal Right to both, nor can either of them be taken away without just Cause. For it is contrary to Natural Right, that whatever Property or other Right a Man has lawfully gained to himself, should be taken from him without a sufficient Reason. On the contrary, if a King should do it, he is without doubt obliged to make Restitution, and to repair the Damage; because he acts against the true Right of his Subjects. And here is the Difference between the Right of Subjects, and the Right of Foreigners, (that is,2 of such as are in no Respect Subjects) which Right of Foreigners can by no Means be under that Sovereign Dominion;3 for as to Punishment, we shall see about that below; but the Right of Subjects must be under that Dominion, as long as the Advantage of the Publick wants and requires it.
IX.Whether the Contracts of Kings are Laws, and when they are so.IX. From what has been said we may perceive, how false the Opinion of some is, who hold all the Contracts of Kings to be Laws. For from the Laws there arises no Right to any Man in regard to the King: And therefore if he should repeal those Laws, he wrongs no Man. However, if he does it without any just Cause, he is really to blame; but a Man acquires a real Right from Promises and Contracts. Besides, by Contracts the Contractors only are obliged, but by the Laws all Subjects are. But there may be a Mixture, partly of Contracts, partly of Laws, as a Treaty made with a neighbouring King, or with the Farmer of the Revenues, which is at the same Time published for a Law, so far as it contains in it what is to be observed by his Subjects.1
X.How by the Contracts of Kings they who inherit all their Goods stand obliged.X.1 Let us now come to the Successors; and here we must distinguish2 between those who inherit all the Goods of the deceased King, as he who receives a patrimonial Kingdom, either by Will, or from an Intestate; and between those who succeed in the Kingdom only, as by a new Election, or by Prescript, and that either in Imitation of other common Inheritances, or otherwise; or whether succeeding by a mixt Right.3 For they who inherit all the Goods with the Kingdom, are without doubt obliged to perform all the Contracts and Promises of the late King. And that the Goods of the Deceased shall be obliged even for his personal Debts, is as antient as Property itself.
XI.How by those Contracts they who succeed in the Kingdom may be obliged.XI. But how far they1 who succeeded barely to the Crown, or to the Goods only in Part, and to the Crown entirely, are obliged, (by the Contracts of the Predecessor) does deserve as much to be inquired into, as it has been hitherto treated of without Order.2 ’Tis plain enough that such Sort of Successors, as such, are not directly, that is, ἀμέσως, immediately obliged; because what Title they have, they receive from the People, and not from him; whether that Succession fall like other common Inheritances, or differ very much from them, of which Distinction we have treated before.
2. But ἐμμέσως, mediately, that is,3 on the account of the State, such Successors are obliged; which must be thus understood. Every Society, as well as every par<335>ticular Person, has a Power to oblige itself either by itself, or by its major Part. This Right they may transfer, either expresly, or by necessary Consequence, by transferring, for Instance, the Sovereignty: For in Morals, he who gives the End, gives all Things that conduce to the End.
XII.And how far.XII. 1. But this is not without its Bounds and Limitations, nor indeed is an unlimited Power of obliging absolutely necessary to the good Government of a Nation, no more than it is to the Advantage of a Trust; but only as far as the Nature of that Power requires.1A Guardian, says Julian, is considered as Master of his Pupil’s Estate, as long as he manages it discreetly, but not when he ruins his Ward: In which Sense that of Ulpian is to be understood,2 every Society shall be obliged by the Acts of the Governour, whether the Agreement be advantageous, or prejudicial to the Society. We are not however to judge of the Engagements of a King, by the Rules of a Contract for managing Affairs (as some maintain) so that his Act shall then only be esteemed ratified, when the State receives a Benefit by it, for it would be very dangerous to the State it self, to reduce the Prince to such Necessities. And therefore it is not to be supposed, when the People conferred the Government upon him, that they designed to straiten him thus. But what the Roman Emperors declared in a Rescript with Respect to the Corporation of a Town,3 that what was transacted by the Magistrates, should be of Force in doubtful Cases, but not so when that which is plainly due is rashly given away; the same Answer may be returned to our Inquiry, concerning the whole Body of the People, observing a Proportion accordingly.
2. As then every Law does not oblige Subjects; for besides those which enjoin Things unlawful,4 some Laws are manifestly absurd and unreasonable, so also the Contracts of Princes do not oblige their Subjects, unless they carry any warrantable Reason, which in doubtful Matters5 ought to be presumed, in Respect to the Authority of Governors: Which Distinction is much better founded than that which is usually alledged by many, about the greater or less Damage that may ensue. For in this Case we are not so much to regard the Success of the Contracts, as the Reasons whereon they were grounded, which if warrantable, the People themselves shall be obliged by them, if they should become free, and so shall their Successors too as the Heads of the People; for if the People whilst independent have made any Contract, he also who comes afterwards to possess the Sovereignty in a full and absolute Manner, shall be obliged to stand to it.
[[3.6 The Emperor Titus is much commended for this, that he would not suffer himself to be petitioned, to confirm any Thing that his Predecessors had granted;<336> whereas Tiberius, and his immediate Successors, no otherwise esteemed the Grants of their Predecessors to be good, than as they themselves also had granted them to the same Persons. That excellent Emperor Nerva, following the Example of Titus, in his Edict recorded by7Pliny, speaks thus, Let no Man imagine that what he has obtained from another Prince, either privately or publickly, shall be by me revoked; that so if I confirm those Grants, he may be the more obliged to me; no Man’s Congratulation stands in Need of new Petitions. But when on the other Hand Tacitus had related of Vitellius, how he had torn the Empire in Pieces, without any Regard to Posterity; and that all the World flocked about him to obtain his extravagant Gifts, some with Money purchasing his Favour, he adds, All wise Men looked upon those Grants as null and void,8which could neither be given, nor received, without the Danger and Ruin of the State.]]
4. This also may here be added, that if by any Accident a Contract made by a King appear to be not only disadvantageous, but also pernicious to the State; so that at the Time when the Contract was so made (if it had been extended to that Case) it had been judged unlawful and unjust; then may that Contract be not so much revoked9 as declared no longer obliging, as if it were made conditionally of being void in that Case, without which Condition it could not have been justly made.
5. And what is here said of Contracts is true also10 in the Alienation of the People’s Money, and of any other Things which the King has a Power by Law to alienate for the Publick Good; for here also is this Distinction to be observed, whether there is any plausible Reason forgiving, or otherwise alienating such Sort of Things.
6. But if the King shall by any Contract endeavour to alienate the Crown or any Part of his Kingdom, or of the Royal Patrimony, beyond what is permitted him, such a Contract shall be of no Force, as being made of what was not his own to dispose of. As much may be said of such Kingdoms as are limited or restrained; if the People have exempted certain Affairs, or certain Sorts of Engagements from the Power of the King. For to make such Acts valid, the Consent of the People by themselves, or their Representatives, is required, as we have shewed already, when we treated of Alienations. Which Distinctions being observed, it is easy to judge whether the Exceptions of Kings, who refuse to pay their Predecessors Debts, whose Heirs they are not, be just, or unjust, of which we may see many Examples in Bodine.
XIII.Which of the free Grants of Kings are revocable, and which not.XIII. Neither is that,1 which many affirm, to be allowed without Distinction, that the Favours of Princes generously granted, may at any Time be revoked; for some a King may give out of what is his own; and which have the Force of perfect Donations, unless they were expresly granted, during Pleasure only.2 Now these cannot be revoked, unless from Subjects by Way of Punishment, or for the Publick Good, for which also Satisfaction should be made, if possible: There are<337> also other Benefits, which only take away the obliging Power of the Law, without any Contract, and these are revocable. For as a Law absolutely taken away, may always be absolutely restored; so also being in regard to a particular Person taken away, it may be in regard to a particular Person restored. For no Right is here acquired to the Prejudice of the Legislator’s Authority.
XIV.Whether he whose the Crown really is, be bound by the Contracts of them who invade, or usurp the Kingdom.XIV. But by such Contracts as are made by Usurpers,1 or those who without any just Title invade a Kingdom, neither the People nor their lawful Princes shall be obliged; because such Invaders had no Right at all to bind them: However they shall be obliged for so much as turns to their Advantage, that is, in Proportion to what they are become the richer by that Means.
[1 ]Bodin’s Words, which our Author has not quoted very exactly, are these “But is not the Prince subject to the Laws of the Land, which he has sworn to observe? We must distinguish. If the Prince takes an Oath to himself, to observe his own Laws, he is not obliged by those Laws, nor by the Oath taken to himself; for even the Subject is not bound by the Oath he takes in these Contracts, from which the Law allows him to depart, tho’ they are honest and reasonable. If a Sovereign Prince promises another to observe the Laws made by him or his Predecessors, he is obliged to observe them, if the Interest of the Prince, to whom the Promise is made, be concerned, even though he took no Oath. But if the Prince, to whom the Promise is made, has no Interest in the Affair, neither the Promise nor the Oath can bind the Person promising. The same may be said, when a Promise is made to a Subject by a Sovereign Prince, even before his Election; for in that Case there is no Difference, as several imagine. Not that the Prince is obliged by his own Laws, or those of his Predecessors, but only by the just Agreements and Promises, by him made either with or without an Oath, in the same manner as a private Person would be. And for the same Reasons that a private Person may be released from an unjust and unreasonable Promise, or one that proves too burthensome to him; or in Case he has been circumvented by Fraud, Mistake, Force, or a just Fear, so as to sustain a very considerable Damage; for the same Reasons, a Prince may insist on Restitution in whatever affects the Diminution of his Dignity, if he is a Sovereign Prince. And thus our Maxim holds good, that the Prince is not subject to his own Laws, nor to these of his Predecessors, but only obliged by his just and reasonable Agreements, in which the Subjects in general or in particular are interested. Several Persons mistake in this Case, by confounding the Laws with the Contracts of Princes, which they call Laws, &c.” Hence it is evident that this learned Politician doth not suppose that the Restitution in Integrum, which he grants to a Prince, acting either as a Sovereign, or as a private Person, is founded on the Civil Laws. He certainly draws it from natural Equity; and herein he is Right, whatever our Author may say, who has been justly censured on that Score by his Commentators. See Ziegler, on this Place; and Pufendorf, B. VIII. Chap. X. § 2, &c. Bodin had also good Reason for considering the Oath as having no proper Force to oblige, independently of the Quality of the Act, to which it is added; on which Point our Author has been sufficiently confuted, as I have observed on the preceding Chapter.
[2. ]That is, if the Community or Body of the State, as such, doth something contrary to the Laws, it has made, if, for Example, they treat in a Manner not conformable to those Laws, the Engagement would not be less valid; because by establishing such Laws as the Rule of Contracts between private Persons, they did not tie up their own Hands. See Chap. IV. of this Book, § 12. Num. 1.
[3. ]It doth in some Respects only, as in Regard to the Time, Manner, and Extent of such Restitution; and thus it may take Place, without supposing a Superior who grants it.
[4. ]Or if the Contract has been duly authorized by his Guardians, acting honestly. But otherwise all the Difference between a King in his Minority, and private Persons of the same Age, is that the Time of his Minority is commonly shorter. See the Passage of Pufendorf, quoted in Note 1. and the late Mr. Hertius’s Dissertation, De Tutelâ Regiâ, Sect. II. § 12. p. 478, Tom. I. Commentat. & Opuscul.
[1 ]Those, with whom a King treats, may, and commonly do know how far his Power extends in that Respect, by Virtue of the Fundamental Laws of the State. So that in this Case, it is their own Fault if they are not assured of the Consent of the People.
[2. ]It is imagined our Author here had his Eye on Philip II. King of Spain, who, in 1596, abolished all the Debts contracted in his Name, and seized on all the Assignments, which had been given to his Creditors. But the same Prince, two Years after, recalled his Ordinance, and restored his Creditors to their full Right. “By the new Agreement made with them he declared and openly confessed that the aforesaid Merchants and Traders had dealt fairly and honestly with him, and laid the whole Fault on himself and his own extreme Necessity.” These are the very Words of Emanuel De Meteren, in his History of the Low Countries, B. XVIII. at the End. See the following Book, Fol. 417. of the old French Translation, published at the Hague in 1618.
[3. ][[Footnote number missing in text, supplied from French edition. In Case of a Doubt, it ought to be presumed that the King, who treats as a private Person, doth it on the Foot of the Laws in Being. For, since he himself made, or at least, tacitly confirmed those Laws, he thereby acknowledged them to be just, and advantageous to the State. So that, it is his Duty to maintain them by his own Example; and he may consequently be judged to design to act by them himself, whenever he doth not very clearly testify his Intention of making Use of his Right, as Sovereign, and setting himself above the Laws, which derive their Authority from him.]]
[4. ]It is certain it cannot, properly speaking, be said that any one punishes or constrains himself; and if that Expression is sometimes used, it is one of those figurative Ways of speaking which are authorized by Practice in all Languages. Even tho’ Punishment did not require two distinct Persons, it cannot easily be presumed that any Man would inflict it on himself. However, as the Laws which annul any Act by Way of Punishment of the Contractor, commonly suppose some Knavery, or some other culpable Disposition in that Contractor, and the Publick suffers some Detriment by the Thing itself; why should the Prince, who enjoys the Benefit of the Laws, made in Favour of the Contractor, be allowed to violate those made for punishing the Contractor, that is to set the bad Example of doing Things contrary to Justice or Publick Good? If therefore any one has, in the King’s Name or by his Authority, entered into a Contract liable to be made void for the Reason last mentioned, or if he himself has so done knowingly and willingly; ought he not, in the former Case, to disclaim those who have acted as by his Order, and retract what he has done in the latter? Thus the Law will take Place in Regard to him, without prejudicing his Independence, and without any other Inconvenience. The Act, by which he submits to it, will not be a Punishment, properly so called, much less a Constraint. It will be only a Declaration by which he voluntarily retracts what he had done without considering well on it. He will thereby only discharge his Duty, in the same Manner as when he stands to an Engagement, into which he entered as a Private Person, conformably to the Laws in Being; tho’ no Man can force him to it.
[1 ]See the foregoing Chapter, § 19.
[2. ]Consequenter; that is, so as to annul, by an Effect of his Will, an Oath, which would otherwise have been good and valid. See the foregoing Chapter, § 20. Mr. Vitriarius, in his Institut. Jur. Nat. & Gent. Lib. II. Cap. XIV. Num. 8. says, that a King may likewise make void his Oath by a posterior Act, when there is just Cause for so doing. But this just Cause is such only because it was tacitly included in the Oath, as a Condition for rendring it invalid. See § 12. Num. 3. of this Chapter.
[3. ]This is a false Supposition, which we have rejected several Times.
[1 ]Emphyteusis. The Interpreters of the Roman Law are not agreed that it is essential to this Contract, that the Grant should be made in Writing; and it is very probable that those who deny it are in the Right. At least this is not practised at present in several Nations, as our Author himself tells us in Regard to his own Country, in his Introduction to the Law of Holland, written in Flemish, B. II. Chap. XL. See Cujas, on the Title of the Code, De Jure Emphyteutico, with Fabrot’s Notes, Tom. II. Opp. p. 165. and Recit. in Cod. Tit. De Pactis, Tom. IX. p. 101. As also Vinnius on the Institutes, Lib. III. Tit. XXV. De Locatione & Conductione, § 3. and Mr. Cocceius’s Jus controversum Civile, Tom. I. p. 443, 444.
[2. ]That is, without a Stipulation in Form.
[1 ]Concerning this Distinction, see what Pufendorf says, B. III. Chap. IV. §5.
[2. ]Code, Lib. VI. Tit. L. Ad Legem Falcidiam, Leg. I. That Law, to which our Author refers, speaks of an Heir, who being well assured that three Fourths of the Estate will not discharge the Legacies, and that he might retrench from them as much as would make up the fourth Part which is his Due, yet pays the entire Legacies; and is thereby supposed to renounce his Right, and make the Legatees a Present of what might lawfully be detained. See Cujas. Tom. X. Opp. p. 536, 537, and Anthony Faure’s Rational. Tom. III. p. 328, &c. So that it contains nothing relating to what the Roman Lawyers call Condictio indebiti, or a Demand of what is not due; for that Action takes Place only when a Man has by Mistake paid what he thought he owed. But the Case, which our Author means, is commonly found in Law IX. of the same Title of the Code; though the Lawyer last quoted pretends that Law speaks of the Trebellianic fourth Part; not to mention the celebrated Question concerning Error of the Fact; which will ever be a Problem in the Civil Law.
[3. ]Digest. Lib. XII. Tit. VI. De Condictione indebiti, Leg. XIX. That Law has chiefly in View the Case of a Son, who, becoming his own Master, has paid what he borrowed, while under another’s Power, which he might have refused by Vertue of the Macedonian Senatus consultum. This appears from Law XL. of the same Title. But that there never is a natural Obligation, properly so called, as our Author supposes, if the Example be to the Purpose, is not true. See what I have said on Pufendorf, B. III. Chap. VI. § 4. Note 5. But if, with Gronovius, we here apply the Case of an Out-law, or Criminal, whose Goods have been confiscated, the same Distinction must be employed, which I have made in Regard to a Depositum, placed in the Hands of such a Person, in my Comment. on Pufendorf, B. IV. Chap. XIII. § 4. Note 5. the Second Edition.
[4. ]Digest. Lib. V. Tit. III. De hereditatis petitione, Leg. XXV. § 11. It cannot be certainly inferred from this Law, which our Author quotes after others, that, according to the Roman Laws, the Duty of Gratitude is one of those natural Obligations which hinder a Man from redemanding a Thing given by Mistake, as if really due. As to the Question in general, on which the Doctors are divided, the contrary Opinion to that here espoused by our Author seems best supported. See Hugh Donel, Comment. Jur. Civil. Leg. XII. Cap. II.
[5. ]Concerning the Signification of the word חסך. See Mr. Le Clerc’s Commentary on Genesis xxi. 23.
[6. ]To this belongs what is done upon no other View or Account, but only the mere Exercise of our Liberality and Munificence, as the Law expresses it, 1. D. de donationibus, χρηστότης ἐκ πηγη̂ς πλουσίας ἀποῤῥεɩ̂ τη̂ς ἡμερότητος, Generosity flows from the rich Fountain of Good Nature.Plutarch in his Cato Major.Grotius.
[7. ]For the Sense of those three Greek Words, consult our Author and Dr. Hammond on the Passage of the Evangelist. Our Author lets us know in this Place that he takes the Gospel of St. Matthew as we now have it, to be a Translation. He was of Opinion, as appears from the Notes on the New Testament, that the Evangelist wrote in Hebrew, or the Language then spoken at Jerusalem; in which he is joined by a great Number of Authors, whose Reasons may be seen in Mr. Dupin’s Preliminary Dissertation on the Bible, Tom. II. p. 23, &c. Edit. Holland. Dr. Mill likewise undertakes to shew the same in his Prolegomena to the New Testament. But it is highly probable that the pretended Original Hebrew, so often mentioned by the antient Fathers, who were but indifferent Critics, is a mere Chimera. See Mr. Le Clerc’s Dissertation De Auctoribus Evangeliorum, and his Evangelical Harmony, § 1. with his Preface to the Gospel of St. Matthew, in his Translation of the New Testament, printed at Berlin.
[1 ]See Pufendorf, B. VIII. Chap. V. § 7.
[1 ]See below, B. III. Chap. XX. § 9.
[2. ]For Foreigners, while they live in the Country, are to be considered as Subjects of the State. See Chap. II. of this Book, § 5. and Chap. XI. § 5.
[3. ]Some maintain the contrary; and that, because, as our Author himself has said Chap. II. of this Book, § 10 it is lawful, in Case of Necessity, to seize and make use of the Property of Foreigners. But then it is done by Vertue of the general Right, which Necessity gives to all Men; not by Vertue of the Sovereign Dominion, which supposes the Person thus distressed a Subject. I find Mr. Vander Muelen confutes the learned Gronovius on this Head.
[1 ]As, if by Vertue of a Treaty of Commerce, the Subjects are obliged to deliver certain Goods or Commodities at a certain Price to the Subjects of another Nation, with which the King makes this Treaty.
[1 ]See the Authors quoted by Reinkingius, Lib. I. Clas. III. Chap. X. Grotius.
[2. ]See Pufendorf, B. VIII. Chap. X. § 8. and what our Author has said, Chap. VII. § 19. of this Book.
[3. ]See Chap. XXI. of this Book, § 19.
[1 ]See Aymonius published by Freber, p. 373. Grotius.
[2. ]Thus Solomon was not obliged by the Promise which David had made to Shimei.Grotius.
[3. ]See several Things to this Purpose, C. I. De solutionibus. It comes nearer to the Matter in Hand, what is mentioned, C.Abb. de Sententiis & re judicata; where there are these remarkable Words, When both the Donation of the above said Grandfather, and the Acquisition of the abovementioned Places were made in the Name of the Kingdom. See too Treutl. Part I. Disp. VI. Thes. VII. Syr. de pace religionis, Concl. XIX. Grotius.
[1 ]Agreeable to this is what Camden has, Part IV. of his Queen Elizabeth, in the Year 1595. and what Cromerus has about the Debts of George King of Bohemia, imprudently undertaken by Wladislaus, Lib. XXVII. Grotius.
[2. ]Digest. Lib. II. Tit. XIV. De Pactis, Leg. XIV.
[3. ]Code, Lib. II. Tit. IV. De Transactionibus, Leg. XII. See Mr. Noodt’s Treatise De Pactis & Transact. Cap. XXVI. and Mr. Schulting, on the Title De Pactis, § 25.
[4. ]As the Law of Cabades King of Persia in Procopius and Agathias. The Subject of this Law is applied to Alienations by Petrus the Embassador of Justin the Second to Chosroes, speaking of some Things which Justinian seemed to have promised the Saracens, οὐ γὰρ ἑνος ἀνδρὸς, &c. For no State, I think ought ever to be condemned for the Practice of one Man; no, nor on the Account of some insignificant Law, tho’ it were the King himself who abetted that Practice, and enacted that Law.Grotius.
[5. ]Sidonius, Lib. V. Epist. XVII. Whatever a Prince has engaged for, his State is always to discharge. See St. Ambrose in his Praises of Theodosius;Symmachus, Lib. IV. Epist. VII. and XIX. Lib. V. XXXVII. Conc. Tolet. V. Cap. VI. C. Caeterum de donationibus.Corippus, Lib. II. says, that Justinian’s Debts, who had left a great deal of Money unsatisfied behind him, were paid by Justin, who succeeded him in the Empire. Grotius.
[6. ]The Story is in Suetonius, Chap. VIII. in Xiphilinus out of Dion, and in Victor. You have something like it, C. Justitiae Caus. XXV. Quaest. I. Gail. Obs. II. 60. 15. See also Radevicus’s History. Gunterus Ligurinus, Lib. V.
And Lib. VIII.
[7. ]Lib. X. Epist. LXVIII. Grotius.
[8. ]Mariana XXIV. 16. quotes this and applies it to the extravagant Magnificence of Frederic King of Naples. Galba resumed Nero’s Grants, even those that were purchased, leaving them only a Tenth, Tacitus, Hist. I. and Plutarch. And Pertinax deprived the freed Men, of what under the Pretence of Sale, they had been enriched with in Commodus’s Reign. Thus Basil the Macedonian Emperor revoked what the Emperor Michael had given away. Zonoras speaking of him, ἐψηϕίστο παρὰ πάντων, It was universally agreed on, that they who had received Money without just Reasons should refund, some all, some half. See the same Author in his Isaacius Comnenus of Grants made by Lewis XI. See Serranus in Charles VIII. of some of his Grants made even to Churches, and yet resumed; see Philip Cominaeus, Lib. IX. Mariana, Lib. X. Cap. XVI. of some Grants repealed, which Ramirus King of Arragon had made. Of Grants of Isabella reversed even by her self, XXVII. 11. Cromerus of the Will of Casimir King of Poland, partly allowed, and partly disapproved, 12. Grotius.
[9. ]C. Suggestum est de decimis. You have an Instance of it in the Acts of Alfonsus and Sanctius in Mariana, Lib. XII. Cap. ultimo: In Camden in the aforesaid Year 1595. and 1597. in Controv. Hansiatic.Grotius.
[10. ]You have several Things relating to this Affair in Conc. Gall. Tom. III. Grotius.
[1 ]See those cited by Reinkingius, Lib. II. Clas. II. Cap. VIII, Num. 26. Grotius.
[2. ]See Afflict. Dec. CXXVIII. Num. 10. Grotius.
[1 ]Consult Pufendorf, B. VIII. Chap. XII. § 3.