Front Page Titles (by Subject) CHAPTER XV: Of publick Treaties, as well those that are made by the Sovereign himself, as those that are concluded without his Order. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER XV: Of publick Treaties, as well those that are made by the Sovereign himself, as those that are concluded without his Order. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Of publick Treaties, as well those that are made by the Sovereign himself, as those that are concluded without his Order.
I.What publick Conventions are.I. Ulpian has divided all Conventions into publick or private.1 The publick he explains, not as some think, by a Definition, but by Examples. The first, Such as are made in Time of Peace. The second, when Generals agree some Things between themselves. By publick Agreements then he understands those which cannot be made, but by them who are invested with an Authority either Sovereign or Subordinate; by which they are distinguished, not only from the Contracts of private Persons, but also from the Contracts of Kings which they make in their private Affairs. Tho’ even from these private Contracts a War is sometimes occasioned, but oftner from the Publick. Wherefore since we have largely treated of Conventions or Covenants in general; we shall now add something concerning this Kind, which is the most excellent of all others.
II.They are divided into Leagues, publick Engagements or Sponsions, and other Agreements.II. Now these publick Conventions, which the Greeks call συνθήας, Conventions or Accommodations, we may divide into Leagues, Sponsions or publick Engagements, and other Agreements.1
III. 1. The Difference between Leagues and Sponsions may be learnt out of the ninth Book of Livy,1 where he rightly tells us, that Leagues are such as are made by the Command of the Sovereign Power,III.The Difference between Leagues and Engagements or Sponsions, and how far publick Engagements oblige. whereby the whole Nation is exposed to the Wrath of the Gods, if they violate it. This used to be done among the Romans by the Heralds in the Presence of the King at Arms;2 but a Sponsion is when publick Persons, having no Order from the Sovereign Power, yet promise something relating to it. We read in Sallust,3The Senate with abundance of Reason decreed, that without theirs and the People’s Orders no Treaty could bemade. Hieronymus King of Syracuse, according to Livy,4 having contracted an Alliance with Hannibal, sent afterwards to Carthage, to turn that Alliance into a League. And therefore5 that of Seneca the Father, (since the Chief has made a League, the Roman People may<338> be said to have done it, and to be included in it) relates to those antient Generals, who had received a special Commission for that Purpose. Indeed6 in Monarchies the sole Power of making Leagues is in the King, according to Euripides in his Supplices.
For we must read it there, as we said, ὁρκωμωτεɩ̂ν and not ὁρκωμωτεɩ̂.
2. Now as inferior Magistrates cannot oblige the People; so neither can the lesser Part of the People oblige the Whole; which makes for the Romans7 against the Galli Senones, for the greater Part of the People was with the Dictator Camillus; but as it is in Gellius8 there is no treating with one and the same People in different Places at the same Time.
3. But let us enquire how far they are bound, who not being impowered by the People, do yet undertake for that which directly concerns them. Some perhaps may think, that if the Sponsors, or Persons engaging, use their utmost Endeavour to perform what they have undertaken, they are sufficiently disengag’d from their Word, according to what9 we have said before, concerning Promises made by a third Person. But the Nature of the Affair under Consideration, which includes a Sort of Contract, requires a stricter Obligation. For no Man in Contracts will give or promise any Thing of his own, but he expects some thing to be allowed him in the Lieu of it. Whence it is, that by the Civil Law, which will not allow of one Man’s Promise for another Man’s Fact,10 a Promise that engages that such<339> or such a Thing shall be confirmed and ratified11 by a third Person, does oblige the Promiser to pay Damages and Interest.
IV. Menippus ’s Division of Leagues rejected.IV. Menippus, King Antiochus’s Ambassador to the Romans, as1Livy relates it, being guided by his own Interest more than by the Rules of Art, divided the Leagues of Princes and States into three Sorts, the first whereof is, when the Conqueror gives Laws to the Conquered; where it is in the Conqueror’s Power, and left to his Discretion to determine what the Conquered shall have, and what he shall be deprived of. The second is, when two Enemies having had equal Advantage in War, make Peace on equal Conditions, so that by Vertue of their Agreements they may redemand and cause to be restored what is reciprocally due, and if either the one or the other has been disturbed in his Possession, during the War, the Difference is to be accommodated, either according to antient Right, or according to the mutual Profit and Advantage of both Parties. The third is, when they who never were Enemies, do enter into an Alliance, without giving or receiving Laws on either Side.
V.Leagues divided into those that injoin the same that the Law of Nature does; and from whence this arises.V. 1. But for our Part we shall make a more accurate Division, by saying1 that there are two Kinds of Leagues, either those that require such Things only, as are agreeable to the Law of Nature, or those that add something more to it. Leagues of the former Kind, are generally made between two Enemies upon the Conclusion of a War; and were formerly often made, and indeed were in some Sort necessary among those who before had never contracted any Engagement towards one another. And the Reason of it was, because as that Principle of Natural Right, which maintains that there is a Kind of Natural Relation between all Mankind,2 and therefore it is a heinous Crime for one Man to hurt another, was effaced of old before the Flood, so it was again some time after, by a general Corruption of Manners, so razed and obliterated,3 that it was accounted lawful to rob and plunder Strangers, tho’ no War was proclaimed, which Epiphanius calls Σκυθισμὸς, the Scythian Fashion.
2. Hence that Question in Homer,4Are you free Booters? Is a complaisant and inoffensive Inquiry,5 which also Thucydides takes notice of; and in the old Law of Solon you have the Companies ἐπὶ λείαν ἐρχομένων of free Booters;6 for as Justin says, Pyracy was to the Days of Tarquin7 an honourable Employment, it is the very same in that Maxim of the Roman Law,8 where it is declared, that if there be<340> any Nation with whom the Romans have no Tye of Friendship or Hospitality, or Alliance, they are not to be reputed professed Enemies, but yet whatever they find in their own Country belonging to the Romans shall be lawful Prize, and if they take a Roman, he shall become their Slave; and the same is to be observed, if any one of them falls into the Hands of the Romans; in which Case too the Right of Postliminy shall be allowed. Thus the Corcyreans formerly, before the Peloponnesian War, were no Enemies to the Athenians, yet had they neither Peace nor Truce with them,9 as appears from the Speech of the Corinthians in Thucydides. So Sallust speaks of Bocchus,10Nobis neque bello, neque pacecognitus, known to us neither by Peace or War. From hence to pillage Barbarians, or Strangers, was thought by Aristotle11 a very laudable Practice, and the Word Hostis, an Enemy, in the old Latin signifies no more than a Foreigner.12
3. Under this Kind I comprehend also Leagues, which provide for the Freedom of Commerce and Entertainment of Strangers on both Sides, as agreeable to the Law of Nature, whereof we have treated elsewhere; thus we find this Distinction used by Arco in Livy,13 in an Harangue of his to the Achaeans, where he does not insist upon any Confederacy, but only so good an Understanding, as might secure each other’s Rights; that they might not protect and give Sanctuary to the fugitive Slaves of the Macedonians. All such Agreements the Greeks strictly call εἰρήνη, Peace, and oppose them to σπονδαɩ̂ς, to Treaties properly so called, as you may see in several Places, particularly in the Oration of Andocides upon the Peace with the Lacedemonians.14
VI.And into those that add something to it; and these are either upon equal Terms:VI. 1. The Conventions which add something to the Law of Nature, are concluded either on equal or unequal Terms.1 The equal are those, αἰ ἴσως καὶ κοινως ἐν ἀμϕοτέροις ἔχουσι, which are alike on both Sides, as Isocrates speaks in his Panegyrick. To which that of Virgil alludes.
And these the Greeks sometimes call συνθήκας simply, Alliances, sometimes συνθήκας ἐπὶ ἴση καὶ ὁμοίᾳ, Alliances upon the square; as you may find in Appian and Xenophon; and those upon unequal Conditions more properly, σπονδὰς, Leagues, and in respect to Inferiors, προστάγματα, Injunctions, or συνθήκας ἐκ τω̂ν ἐπιταγμάτων, Treaties of Injunction; which Demosthenes2 says are to be carefully avoided by all those who love Liberty, because they come very near a State of Slavery.<341>
2. Both these Leagues are made either for the Sake of Peace, or for the Sake of some Alliance. Treaties of Peace, upon equal Terms, are generally made for the restoring of Prisoners, or Goods taken in War, and for mutual Security, of which I shall treat hereafter, when I come to speak of the Effects and Consequences of War. Treaties of Alliance upon equal Conditions, respect either Commerce, or the Joining of Forces, and Sharing the Expence of the War, or some other Matters. Treaties of Commerce may be various; as that no Custom shall be paid on either Side, which was in the old League between the Romans and Carthaginians,3 except only what was given to the Notary and the Crier; or that no more shall ever be demanded than what is at present paid, or that a certain Rate shall be fixed.
3. So also, in a Confederacy of War, that each Party shall contribute an equal Number of Foot, Horse, or Ships, and that either in all Wars, without Exception, which the Greeks call4 Συμμαχίαν, A Conjunction of Arms, which Thucydides thus explains, Τοὺς αὐτοὺς ἐχθροὺς καὶ ϕίλους νομίζειν, To look upon those who are Enemies and Friends to one, to be so to the other. And this Expression we often meet with in Livy, or only for the Security of their Countries, which the Greeks call ἐπιμαχίαν,5A defensive League, or a Confederacy for one particular War, or against such a particular Enemy, or against all Enemies whatever, excepting their Allies, as in the League between the Carthaginians and Macedonians, mentioned by Polybius.6 Thus the Rhodians entered into Articles with Antigonus and Demetrius, to assist them against all Enemies, whatsoever, except Ptolomy.7 The like equal Leagues may be made in Respect of other Things; as, that8 neither Party shall erect any Forts on the other’s Borders, that neither shall protect the other’s Subjects,9 nor grant an Enemy leave to march through their Country.
VII.Or upon unequal, which are again divided.VII. 1. From what has been said of equal Leagues, we may easily understand what is meant by unequal ones; which Inequality may respect either the stronger or the weaker. That of the stronger is, when Assistance is promised, but none required again, or when more is promised on that Side than on the other. Unequal Conventions on the weaker Part, or, as Isocrates speaks in his Panegyrick, Τὰ τοὺς ἑτέρους ἐλάττον̂ντα παρὰ τὸ δίκαιον, Where one Side is depressed more than is just and reasonable, are those which we said are called Προστάγματα, Injunctions, or ἐπιτάγματα, Commands. And these are such as do either lessen, or not lessen, the sovereign Jurisdiction of the inferior Power.
2. An Alliance that lessens the sovereign Jurisdiction is such an one as was the second League between the Romans and the Carthaginians,1 in which it was provided, that the Carthaginians should make no War without the Leave of the Romans. And from that Time, as Appian observes, Καρχηδόνιοι Ῥωμαίοις ὑπήκουον ἔνσπονδοι, The Carthaginians by that League became dependent on the Romans.2 To this also may be referred a conditional Surrender, but that is not so much the les<342>sening the sovereign Jurisdiction, as the perfect transferring of it to another, of which we have treated elsewhere. Yet is such an Agreement sometimes called by the Name of a Treaty, as Livy, in his ninth Book, The Theates in Apulia requested, that they might be admitted to a League, not to be upon equal Terms, but under the Dominion of the Romans.
3. In an unequal Alliance, that does not lessen the Sovereignty, the Terms imposed, are either permanent or not. Those that are not permanent, are such as oblige the Payment of the Forces employed in the present Service,3 the demolishing Fortifications, the quitting some Places,4 the giving Hostages, the delivering up Elephants and Ships.5 The Conditions that are permanent are such as oblige all Reverence and Honour to the other’s Power and Majesty. How far such an Alliance extends, we have elsewhere shewed. Next to this, is, that they account the Friends and Enemies of the other Party theirs, that they allow no Passage through their Country, nor Provisions, to any Troops that belong to those they are at War with; as also these less considerable Articles, as that they shall not fortify such and such Places, nor lead an Army thither, nor have above such a Number of Vessels, nor build any City, nor traffick, nor levy Soldiers in certain Places, nor fight against their Allies, nor supply their Enemies with Provisions, nor receive those who come from such and such Parts; that they renounce all former Treaties with others: Of all which you may see Instances in Polybius, Livy, and other Authors.
4. Unequal Leagues are made, not only between the Conquerors and Conquered, as Menippus supposed, but also between People of unequal Power, even such as never were at War with one another.
VIII.Alliances made with those who do not profess the true Religion are allowed by the Law of Nature.VIII. Concerning Leagues, it is often disputed whether they may be lawfully made with those who are not of the true Religion, which is not to be doubted in Respect to the Law of Nature only. For the Right of making Alliances is common to all Men, and admits of no Exception on the Account of Religion. The Question is then, whether by the Law of GOD it be lawful or not? which has been the Subject of frequent Controversy,1 not only among Divines, but among some Lawyers too, of which Number are Oldradus and Decianus.
IX.Nor universally forbidden by the Hebrew Law.IX. 1. Let us then first consider, what the Divine Right of the Old Testament directs in this Affair, and afterwards we will consult that of the New. We find that inoffensive Leagues, and such as tended to no one’s Injury, might, before the Time of Moses, be contracted with People who were not of the true Religion. We have an Instance of this inaJacob’s Treaty with Laban, not to say any Thing ofbAbimelech, because it does not fully appear that he was an Idolater. Nor did the Mosaick Law make any Alteration here: Let the Aegyptians be a Precedent, who doubtless were Idolaters, yet the Hebrewsc were strictly forbid to abhor, or have any Aversion to them. But we must except the seven Nations, who were by the ALMIGHTY himself devoted to Death, and the Israelitesd appointed to execute that Sentence; for they persisting in their Idolatry, and refusing Subjection, the Jews were commanded not to spare them: To whom also the Amalekitese were added by the Divine Decree.<343>
2. As to Leagues of Commerce, and the like, either for a mutual Advantage, or that of one Party only, that such might be made with Pagans, is allowable by the Law; for we find nothing against it. On the contrary, we have the Examples offDavid andgSolomon, who made a League with Hiram King of Tyre, where it is remarkable, that it is said in Holy Writ, that this League was made by Solomon according to the Wisdom that GOD had given him.
3. The Law of Moses indeed does especially command them to do Good to their ownh Nation, Ἀγαπᾳ̑ν τὸν πλησίον, To love their Neighbour. Besides, the peculiar Way of Living, and Form of Manners, prescribed to the Jews, could not well suffer them to have any familiar Conversation with Strangers. But hence it does not follow, that it was not lawful for them to do Good to Strangers, or that it was not also commendable, tho’ the corrupt Interpretations of the modern Rabbins infer the contrary: Whence Juvenal observes of the Jews,
Where the Instance of not directing a Stranger in the Way, implies a Refusal of the least and most trifling Favours, Favours that cost them neither Pains nor Charge, which Cicero and Seneca acknowledge we should do to utter Strangers. And Tacitus, speaking of the same Jews, says, Inviolable in their Faith, always ready to assist one another, but to all the World besides they bear a mortal Hatred. Thus we read in the New Testament, that the Jews used Not Συγχρη̂σθαι, συνεσθίειν, κολλᾳ̑σθαι, προσέρχεσθαι,ito have any Dealings, not to eat, not to converse with, or come unto one of another Nation. And Apollonius Molo objected to them, Ὅτι μὴ παρεδέχοντο τοὺς ἄλλαις, &c. That they receive none, who entertain Notions of GOD different from them, nor will they have any Thing to do with those whose Method of Living is not intirely correspondent to theirs. And the Courtiers of Antiochus, in Diodorus, accuse the Jews, Μόνους ἁπάντων ἐθνω̂ν, &c. That they are of all People the most unsociable to Strangers, and take them all for Foes. And then there follows, Μηδὲνι ἄλλῳ, &c. They will admit no other Nation to their Table, nor even give them a good Wish. And presently they are charged with Μισανθρωπία, A detesting of all Mankind. And in Philostratus, Tyaneus speaks thus of the Jews, Οἳ βίον ἄμικτον ἑυρόντες, &c. They have found out so unconversable a Way of Living, that they will not so much as eat with other People. And accordingly in Josephus, very frequently, the Τὸ ἄμικτον, τὸ ἀσύμϕυλον, ἡ διαίτης ἀμιξία, the Jews Unsociableness, and Inhospitality, are thrown in their Teeth.
4. But CHRIST has, by his own Example, taught us, that this is by no Means the Meaning and Design of the Law, when he, who was himself the strictest Observer of it, did not scruplek to receive Water at the Hands of the Woman of Samaria. Nor did Davidl formerly make any Difficulty in retreating to People of another Religion, nor was he ever blamed for it. And Josephus introduces Solomon, when he dedicated the Temple, and begged of GOD that he would hear the Prayers even of Foreigners, when offered up there, delivering himself thus, Ἡμεɩ̂ς οὐκ ἀπάνθρωποι τὴν ϕύσίν ἐσμεν οὐδὲ ἀλλοτρίως πρὸς τοὺς οὐχ ὁμοϕύλους ἔχομεν, For we are not inhuman in our Natures, nor are we averse to those, who are not of the same Nation and Family with ourselves.1
5. From this Rule we are to except, not only the seven Nations before-mentioned, but also the Ammonites and Moabites, of whom it is written, Deut. xxiii. 6. Thou shalt not seek their Prosperity, (for so in this Passage, you had better render שלמם, than their Peace) nor their Good, all thy Days for ever. In which Words they were forbidden to make any League of Friendship with them; yet it gives them no Right to make War against them, without just Cause; or, perhaps,<344> this Place may be rather understood, according to the Opinion of some of the Hebrew Doctors, to prohibit seeking Peace from them, but not the accepting of it when they themselves offered it: It is certain they were forbid to make War against the Ammonites, Deut. ii. 19. nor did Jephtham fight against them, till he had tried all the Ways of an equitable Accommodation; nornDavid, till provoked by intolerable Affronts. The remaining Question then is, whether it be lawful to enter into a confederate War with Infidels.
6. That this also was not unlawful before the Law, appears from the Example of2Abraham, who with his Army assisted the wickedoSodomites: Nor do we read, that the Law of Moses did in general alter any Thing in this Affair. Of the same Opinion were3 the Asmoneans, who were both very skilful in the Law, and great Respecters of it, witness their religious keeping of the Sabbath, wherein, however, they allowed the Use of Arms in their own Defence, but no otherwise: And yet these very Peoplep made an Alliance with the Lacedemonians, and the Romans, with the Consent both of Priests and People; nay, they offered up solemn Sacrifices for their Prosperity. But as to the Authorities alledged against this Opinion, they may have their particular Reasons.
7. For if there were any Kings or Nations (besides those mentioned in the Law) that were so wicked, that GOD, by his Prophets, had declared his Intent to destroy them, as hated by him, to undertake their Protection, or to join in Confederacy with them, was without Doubt unlawful. To this Purpose is that of the Prophet4 to Jehosaphat, for making a League with Ahab;qShouldest thou help the Wicked, and love them5that hate the LORD? Therefore is Wrath upon thee from before the LORD. For Michaiah the Prophet had before foretold the ill Success of that War. And that of another Prophet to Amazia.rLet not the Army of Israel go with thee, for the LORD is not with Israel; to wit, with all the Children of Ephraim. But this was not from the Nature of the Alliance, but on the Account of the peculiar Quality of the Person, as may be evinced from hence, that GOD did sharply rebuke and threatensJehosaphat, for entering into a Treaty of Commerce with Ahazia King of Israel, tho’ that Treaty was no otherwise than what David and Solomon had made with Hiram, on which Account we told you, they were not only not reproved, but even commended. For as to that Clause, that Ahazia did very wickedly, it is to be understood of the whole Course of his Life, which had rendered GOD an Enemy to him, and all his Undertakings: As this Story is explained in the Book called The Constitutions of Clement VI. Chap. 18.
8. And this also must be observed, that the Case of those, who being descended of Jacob, had forsaken the LORD whom they knew, was far worse than that of mere Strangers; for against such Apostates, all the rest of the People were,6 by the Law of Deut. xiii. 13. commanded to take up Arms.<345>
9. Sometimes the Leagues themselves are blamed, for the wicked Disposition of those who made them; so the Prophet reproves Asa,t for applying himself to the Syrian, in distrust to GOD; which he shewed by sending the Things consecrated to GOD, unto this Syrian; so he was also blamedu in his Sickness, for putting his Confidence more in the Physicians than in GOD. And therefore it no more follows from this History, that it is in itself, and in general, an ill Thing to enter into an Alliance with such People as the Syrians, than that it is so to consult a Physician. For the bad Disposition of the Mind, sometimes makes that unlawful which is not so in itself. As David’sw numbering the People; Hezekiah’s shewing hisx Treasures. So in one Place the Confidence the Jewsy had in the Aegyptians is reproved; when yet Solomonz was allowed to be related to them by Marriage.
10. To which must be added, that the Hebrews under the old Law, had the expressaa Promises of GOD for Victory, provided they kept the Law, and therefore they had the less Reason to have Recourse to human Assistance. There are also many excellent Sentences in Solomonbb to dissuade us from associating with the Wicked; but these are the Advices of Prudence, and not Precepts of a Law; and these very Advices themselves, as most of those Maxims which regard Morality, have several Exceptions to them.
X.Nor by the Christian Law.X. 1. But the Gospel has made no Alterations in this Respect; nay, it gives a greater Encouragement to such Leagues, by Vertue of which, those who are not of the true Religion may be relieved in a just Cause; forasmuch as we are to do Good unto all Men, when an Opportunity offers; and this not only as a Thing commendable, and left to our Liberty and Discretion, but as what we are commanded and obliged to. For by the Example of GOD,a who makes his Sun to arise on the Just and on the Unjust, and sends his Rain on the Wicked as well as the Righteous, we are taught to exclude no Man from the Benefit of our Kindness. Excellently does Tertullian say, As long as GOD confined his Covenant to Israel, it was with Reason that he bad them shew Mercy to their Brethren only. But as soon as ever he gave to CHRIST the Heathen for his Inheritance, and the utmost Parts of the Earth for his Possession, and what Hosea had spoken began to be fulfilled;1 The Nation which were not my People, is now my People, and she who had not obtained Mercy, has now obtained Mercy. From that Time has CHRIST extended his Law of Charity to all Mankind, excluding none from his Compassion any more than from his Call.
2. Which, however, must be understood with some Degrees of Allowance, for we are to do Good unto all Men, but especially to those of the same Religion. So in Clement’s Constitutions, Πα̂σιν οὐ̑ν δίκαιον διδόναι ἐξ ὀικείων πόνων· προτιμητέον δε τοὺς ἀγίους. We must give of our Labours to all, but prefer the Saints.2A perfect Liberality (says St. Ambrose) must be regulated by the Religion, the Occasion, the Place, the Time, in such a Manner as that you may chiefly exercise it towards those of the Houshold of Faith.3So Aristotle, Οὐ γὰρ ὁμοίως προσήκει συνήθων, καὶ ὀθνείων ϕροντίζειν, For there is no Reason that we should take the same Care of Strangers as of Friends.4
3. Nor is our living together, and our familiar Conversation with Men of another Religion forbid; nor are we even denied all Manner of Commerce with those who are more inexcusable than these, such as are Apostates from, and Contemners of, the Rule of Christian Discipline, but only an unnecessary Familiarity, and notb what may give one Hopes of their Conversion. For as to that of St. Paul,cBe not unequally yoked with Unbelievers; for what Fellowship hath Righteousness with<346> Unrighteousness, and what Communion has Light with Darkness, and what Concord hath CHRIST with Belial, or what Part hath he who believeth with an Infidel? It relates to those who were present at their Idol-Feasts, and so did either really commit Idolatry, or at least seemed to do so. Which is plain from the following Words,dWhat Agreement hath the Temple of GOD with Idols? And to this Effect is what you have in the first Epistle to the Corinthians, Ye cannot be Partakers of the Table of the LORD, and of the Table of Devils.
4. Nor must we conclude, that it is unlawful to make Treaties and Alliances with Pagans and Infidels, because we are not to put ourselves voluntarily under their Government, or to intermarry with them; for in both these Cases there is evidently more Danger of being exposed to the Temptation of renouncing the true Religion, or at least more Difficulty in maintaining the Profession of it, than in the other Affair. Besides these Engagements are more lasting, and there is a greater Freedom of Choice in Marriages; whereas Leagues must be entered into, according as the Conjuncture of Time and Place requires. But as there is no Harm in doing Good to Infidels, so neither is there any in desiring their Assistance, ase Saint Paul did that of Caesar, and of the Tribune.
XI.Cautions about such Leagues.XI. 1. And therefore this is not a Thing in itself evil, or always unlawful, but only1 in Regard to Circumstances. For which Reason we ought to take particular Care, that by our too intimate Conversation we do not infect or scandalize the Weak; and to remedy this it will be very proper, that the Dwelling of such People should be in some separate Place, as the Israelites lived by themselves, and at a Distance from the Aegyptians; for that of Anaxandridas is not without its just Grounds,
And to this Purpose is what we have elsewhere alledged, concerning the Scruple which the Jews and Christians had, about carrying Arms under the Command of Pagans.
2. But if such a Confederacy should very much augment the Power of the Infidels, it were better to abstain from it, unless upon absolute Necessity; and what Thucydides said in a like Case, is very much to the present Purpose, Ἀνεπίϕθονον δε ὅσοι ὥσπερ καὶ ἡμεɩ̂ς ὑπὸ τω̂ν, &c. They are not to be blamed who are treacherously invaded, as we are by the Athenians, if they endeavour to get the Assistance, not only of the Greeks, but of the Barbarians. For every Right is not enough to justify us in the doing that which may, if not directly, yet indirectly, prejudice our Religion. For we must first seek the Kingdom of GOD, (Matt. vi. 33.) that is, the Propagation of the Gospel.
3. It were to be wished, that many Princes and People, who at this Day have the Government in their Hands, would be mindful of that generous and pious Advice which Fulk, Archbishop of Rheimes,3 once gave to Charles the Simple, Who would not tremble to consider, that you should4seek the Friendship of GOD’s Enemies, and make Use of the odious Arms and Alliances of Pagans, to the Ruin and<347> Destruction of Christianity? For there is very little Difference between confederating with Infidels, and the renouncing of GOD to worship Idols. And Alexander in Arrian, says, Ἀδικεɩ̂ν μεγάλα τοὺς στρατευομένους, &c. That they were guilty of the most enormous Baseness, who would bear Arms for the Barbarians against Greece, contrary and in Prejudice to the Rights and Laws of the Greeks.5
XII.All Christians obliged to enter into League against the Enemies of Christianity.XII. I shall here add this, that since all Christians are Members of one Body, which are commanded to have a Fellow-feeling of each other’s Sufferings, as that Command affects every single Person, so should it every Nation as they are a Nation, and all Kings as they are Kings. Nor ought any one to serve CHRIST in his Person only, but also to the utmost of that Power he is entrusted with. But this neither Kings nor People can well do,1 whilst an Enemy of the true Religion invades the States of Christendom,2 unless they heartily assist and stand by one another; which cannot be done conveniently, without a general League and Confederacy to that very Purpose; and such a League has formerly been made, and the Roman Emperor3 was unanimously chosen Head of it; all Christians then are obliged to contribute either Men or Money, according to their Ability, to this common Cause; and how can they be excused who refuse it, I cannot see, unless they are hindered by an unavoidable War, or some such great Calamity.
XIII.If several of our Allies are at War, which of them we ought to assist; explained by Distinctions.XIII. 1. Another Question which used to arise, is, Whether of them, supposing several Nations engaged in War with another, we are obliged to assist, they being all of them equally our Allies?1 In the first Place, we must remember what I said before, that nothing can bind us to an unjust War. And therefore2 he of the Confederates is to be preferred who has the juster Cause, if it be against one who is not our Confederate; nay, tho’ it be against another Confederate. Thus Demosthenes, in his Oration about Megalopolis,3 shews, that the Athenians were<348> obliged to help their Confederates the Messenians, against their other Confederates the Lacedemonians, if the Lacedemonians were unjust Aggressors; which holds true, unless it be expressed in our Articles not to send Aid against such an Ally. In the Agreement which Hannibal made with the Macedonians, was this Clause, We will be Enemies to your Enemies, if you except the Kings, Cities, and maritime Towns which are in League and Amity with us.4
2. But if our Confederates engaged in War, have each of them an unjust Cause, (which may sometimes happen) we are then to stand Neuters. So Aristides in his fifth Leuctric, εἰ μὲν ἐπ’ ἄλλους ἐκάλουν, &c. If either of our Allies had desired our Assistance against Strangers, we would presently have complied with the Request; but if they want us to be employed with one against the other, we will not concern ourselves at all.5
3. If our Confederates be engaged in a just War against one who is not our Ally, and require our Assistance; if we are able, we ought to send each of them either Men or Money, as is practised in the Case of personal Creditors.6 But if a Prince be demanded personally to assist both, having so promised; because his Person cannot be divided, it is reasonable that he7 should prefer him with whom he has been the longest in Alliance, as the Acarnanians told the Lacedemonians, in Polybius.8 The like Answer was returned to the Campanians, by the Roman Consul, When we enter into new Treaties and Friendship, we ought to take special9Care that we do not violate and infringe the old.<349>
4. But this will also admit of the Exception, unless the latter League has something in it beyond a bare Promise,10 for it may include, in some Sort, the transferring of Property, and imply somewhat of Subjection.11 And thus in the Case of a Sale, we say the first Purchase is preferred, unless the latter has actually transferred the Property. So Livy reports of the Nepesines,12 that the Faith given upon their Surrender, was more obliging than that of former Leagues. Some distinguish between these more nicely; but what I have said, as they are nearer to Simplicity, so are they to the Truth.
XIV.Whether a League may be renewed tacitly.XIV. A League made only for a Time, upon the Expiration of that Time, is not presumed to be tacitly renewed,1 unless such Acts intervene as can bear no other Construction;2 for a new Obligation must not easily be presumed.
XV.Whether a Violation on one Side frees the other from being obliged.XV. If either Party break the League, the other is freed,1 because each Article of the League has the Force of a Condition. Thus we find in Thucydides, Λύουσι τὰς σπονδὰς οὐχ οἱ, &c. The League is violated, not by those who being deserted apply themselves to others for Assistance, but by those who do not perform in Deeds, what they promised upon their Oaths.2 And in another Place, Ὁ τι δ’ ἂν τούτων παραβαίνωσιν, &c. If either Party offend against the Articles they have sworn to, never so little, the League is broke.3 But this is only true, in Case it be not agreed on to the contrary, which sometimes is done, that a League solemnly sworn to should not be esteemed broke upon every slight Offence.
XVI.How far the Sponsors are obliged, if what they undertake for be disallowed; where also of the Caudine Engagement.XVI. 1. There may be as many Sorts and Subjects of Sponsions, as there are of Leagues.1 For these differ only in the Capacities and Power of the Persons who make them. But there are two Questions generally started about Sponsions. The first is, how far the Persons engaging are obliged, in Case the Prince or the State should disapprove of the Engagement, whether they are obliged to indemnify the other Party, or whether to put Affairs into the same Posture they were in before the Engagement, or whether their Persons are to be delivered up. The first seems agreeable to the Civil Law of the Romans;2 the second to Equity and Reason; which the Tribunes of the People, L. Livius and Q. Melius, urged in the Caudine Controversy. The third is approved by Use and Custom, as appears by the Examples of the two remarkable Sponsions made at Caudium and Numantia. But this is always to be laid down as a Maxim, that the Sovereign is in no Manner obliged by Treaties thus concluded without his Order. And therefore it was very well said of Posthumius to the Romans,3You have promised the Enemy nothing; nor have you ordered any of your Citizens to engage for you; and therefore you have nothing to do with us, to whom you gave no Order; nor with the Samnites, with whom ye made no Agreement. And again, I absolutely deny, that any Contract can oblige the People, which is made without their Order.4 Nor is it with any less Judgment and Reason said, that If the People may be thus obliged to any one Thing they may be so to all.
2. And therefore the People of Rome were neither obliged to indemnify the Samnites, nor to put Affairs into the same Posture they were in before. But if the<350> Samnites would have any Dealings with the People of Rome,5 they should have kept their Army at the Furcae Caudinae, and have sent Embassadors to Rome, to treat with the Senate and People, concerning a League and a Peace, that they themselves might have judged at what Price they would purchase the Preservation of their Army. And then if they had not stood to their Agreement, they might justly have said, as they actually did say, what Velleius relates,6 that the Numantines alledged, that the Violation of the publick Faith was not to be expiated by the Blood of a single Person.
3. It may more plausibly be said,7 that the whole Army was obliged by that Agreement; and certainly, this would be entirely just, if the Sponsors had made the Contract by their Order,8 and in their Name; as we read that was which9Hannibal made with the Macedonians. But if the Samnites were contented with the Word and Honour of10 the Sponsors, and11 the six hundred which they de<351>sired for Hostages, they might even thank themselves. On the other Hand, if the Sponsors had pretended to have had a publick Commission for contracting with them, 12 they had then been obliged to have made Restitution and Satisfaction for the Damage occasioned by their Fraud. But if that did not appear, they were still obliged to make good what the other Party might reasonably be supposed to have suffered on the Account of not ratifying the Treaty, according to the very Nature of the Affair. And in this Case, not only their Bodies, but also their Estates, would have been obliged to the Samnites, unless some Penalty had been particularly expressed, in that Agreement, in lieu of it. For as to the Hostages, it was positively agreed, that they, if the Treaty was not confirmed and complied with, should answer it with their Heads.13 But whether the same Punishment was to be inflicted on the Sponsors, is what we are in the Dark about. For when the Penalty is stipulated after such a Manner, the Result of it is this, that if the Fact engaged for cannot be performed, nothing else can be demanded from that Obligation; because in this Case, something that is certain is agreed on, instead of some uncertain Compensation, that might possibly accrue. And it was the general Opinion of those Times, that one’s Life might lawfully be engaged on such Occasions.
4. But among us who think otherwise, it is my Sentiment,14 that by Vertue of an Agreement made without the Order of the sovereign Power, the Estate of the Sponsor stands first engaged for Damages and Interest, and if that be not sufficient, his personal Liberty.15Fabius Maximus, when the Senate refused to ratify an Agreement made by him with the Enemies, sold his own Land for two hundred thousand Sesterces, and so discharged his Promise. But the Samnites very justly ordered, that16Brutulus Papius, who had broke a Truce, should, Body and Goods, be delivered up to the Enemy.
XVII.Whether a Sponsion or Engagement not disapproved of, does by its being known and passed over in Silence lay an Obligation; this explained with some Distinctions: Where also of Lutatius’s Treaty.XVII. 1. Another Question is, Whether if the sovereign Power be acquainted with the Agreement, and yet is silent, it shall not be obliged to stand to it? Here we must first distinguish, whether the Agreement were purely and simply made, or whether upon Condition of its being ratified by the sovereign Power; for if it were conditional, that Condition not being performed, (for Conditions ought to be1 expressly performed) the Sponsion is of no Force. Like that of Lutatius with the Carthaginians,2 which the People of Rome declared was not made by their Order; and therefore a new Treaty was made by publick3 Deliberation.
2. In the next Place we should know, whether there has been any Thing on the Part of the Sovereign besides bare Silence; for Silence alone is not enough to prove a Consent, without some Thing or Deed, which probably would not have been, if that Agreement had not been approved of, as we have declared already, when we treated of relinquishing a Property. But if any such Acts happen, which cannot probably be referred to another Cause, then it may justly be supposed to be ratified, as Cicero, for Balbus, well observes in the Case of those of Cadis.<352>
3. The Romans pleaded Silence4 against the Carthaginians, upon the Agreement made by Asdrubal; but because it was expressed in negative Terms, That the Carthaginians should not pass the River Iberus,5 it could scarcely be allowed, that a bare Silence should be enough here to ratify another’s Fact, since no Act properly theirs could follow, till the Carthaginians, attempting to pass that River, should be forbid by the Romans, and should obey accordingly. For such an Act has the Force of a positive Act; nor must it be reckoned among such as are merely negative. Now if that Agreement made by Lutatius had consisted of many Parts, and it had always appeared, that the Romans had observed the other Parts, tho’ deviating from common Right, this had been Conjecture enough to prove that the Agreement was firmly ratified.
4. It now remained, that we should speak of such Agreements as Officers and Soldiers make, not concerning those Things which belong to the sovereign Power, but such as relate to their own private Affairs, or for which they have a Permission granted them. But we shall have a better Opportunity to treat of these, when we come to the Incidents of War.6
[1 ]Digest. Lib. II. Tit. XIV. De Pactis, Leg. V. See Mr. Noodt’s Treatise De Pactis & Transactionibus, Cap. VII. where he explains this Division; as also Mr. Schulting on the Title De Pactis, §2.
[1 ]See the Close of this Chapter, where you have a short Explication of what is meant by those Sort of publick Conventions, or Agreements.
[1 ]’Tis where he is speaking of the shameful Accommodation, made by the two Consuls with the Samnites, after the Action at Caudi or Caudium. We likewise see there what Remarks our Author makes a little lower on the Circumstances, which accompanied Treaties made by Order of the People. See Sigonius, De antiquo Jure Italiae, Lib. I. Cap. I.
[2. ]Pater patratus. He was one of the Feciales or Heralds, who took the Oath in the Name of the People. Livy, Lib. I. Cap. XXIV. Num. 6. See below, B. III. Chap. III. § 7.
[3. ]Bell. Jugurth. Cap. XLIII. Edit. Wass.
[4. ]Lib. XXIV. Cap. VI. Num. 7.
[5. ]Contr. IV. 29. Grotius.
[6. ]See what is below, B. III. Chap. II. § 11, &c. Servius upon that Passage of the Second Aeneid.
Because what the King promises, the State does seem to promise. And where Aeneas going to fight a Duel, first enters into a League with Latinus, he does not, says he, bring in Turnus Swearing, because when the King is present, he has no Power to do it.Grotius.
[7. ]This was not the Reason, on which the Romans went. The Fact was as follows. The Gauls after a complete Victory gained over the Romans near the River Allia, marched to Rome, and easily made themselves Master of the whole City, except the Capitol; whither the Senate and such young Men as were able to bear Arms, had retired. The Gauls could not carry that Fortress by Storm; but at last the Want of Provisions obliged the Besieged to capitulate. They agreed to give the Gauls a certain Quantity of Gold; on which Condition they promised to draw off their Forces. During the Siege, the Romans, who had rallied at Veii, after their Defeat in the Battle of the Allia, had created Camillius Dictator, with the Approbation of the Senate, then shut up in the Capitol, into which Place a young Man, named Pontius Cominius, found Means to enter privately, and get off without being discovered. As they were on the Point of weighing the Gold, promised to the Gauls, the Dictator came up, with his Army, and seized it, telling them he was ready to give them Battle. It was to no Purpose that the Gauls replied, they demanded only what was their Due by Vertue of the Treaty. Camillius answered that, as he was invested with Sovereign Authority, in Quality of Dictator, no Person had a Power to make such a Treaty without his Orders. Livy, Lib. V. Cap. XLIX. Num. 2. See also Plutarch, in Camillus, Tom. I. p. 143. Edit. Wech. But Budaeus, in his Specimen Jurisprud. Historicae, § 86. p. 855, &c. of the Selecta Juris Nat. & Gent. maintains that this was manifest Perfidiousness. Those who were in the Capitol, says he, at that Time represented the Roman People; and Camillus in this Case was to be considered only as a private Citizen. Even supposing the Besieged could not treat validly, as they believed they could, they would still have been faulty in this Point. To which we may add that the Gauls were not obliged to know, or enquire, whether Camillus had been made Dictator. Nor could they know whether the greater or the smaller Number of the Romans was assembled in the Capitol; and in the Senate they saw the most illustrious Part of the Citizens. That Victory, saysStephen Pasquier, (B. IX. Lett. X.) can never be related but to the Shame and Confusion of the Romans. Camillus himself, as the learned Gronovius observes on this Place, did not proceed on this Reason, since he would not accept of the Dictatorship till he was authorized by an Order from the Senate. I am much mistaken if our Author was not thinking of what was said on another Occasion, against passing certain Laws proposed. Livy, Lib. VI. Cap. XXXVI. Num. 9.
[8. ]Noct. Attic. Lib. XIII. Cap. XV. from Messala, De minoribus Magistratibus. But here is an extraordinary Case; and besides, the People are here supposed to be assembled in two different Parts of Rome; when this Regulation was made, there was no Thought of the People being assembled out of the City. So that the Passage, instead of savouring our Author’s Way of Reasoning, makes against him: For all the People at Rome had treated with the Gauls.
[9. ]In the eleventh Chapter and twenty second Section of this Book. Grotius.
[10. ]Digest. Lib. XLV. Tit. I. De verborum obligatione, Leg. XXXVIII. See Pufendorf, B. III. Chap. VII. § 10.
[11. ]This holds good in Regard to the Proxy of a Plaintiff, when the Commission doth not appear clearly, for such a Proxy is obliged to give Security for the Ratification of what he has done. Institut. Lib. IV. Tit. XI. De satis dationibus. Digest. Lib. XLVI. Tit. VIII. Ratam rem habere, & de ratihabitione. Leg. XIII. See Mr. Noodt on the Title of the Digest, De Procurationibus, &c. p. 130. and Mr. Schulting on the same, § 7.
[1 ]Lib. XXXIV. Add Diodorus Siculus, Exc. Leg. IV. Grotius.
[1 ]See Pufendorf, B. VIII. Chap. X. &c.
[2. ]See the Law quoted in the Preliminary Discourse, § 14.
[3. ]Caesarspeaking of the Germans; Robberies that are committed without the Bounds of each respective State have no Manner of Disreputation in them. (De Bello. Gall. Lib. VI. Cap. XXIII.) This is confirmed by Tacitus in his Account of the Customs of Germany, and by Saxo, Lib. XIV. and in several other Places. The same is reported of the Tyrrhenians by Servius, upon the eighth and tenth Aeneid, and of other Nations upon the first Aeneid; and of the Portuguese by Diodorus Siculus, (Lib. V. Cap. XXXIV.) with whom agrees Plutarch in his Marius; τὸ ληστεύειν οὔπω τότε τω̂ν ἰβήρων οὐχι κάλλιστον ἡγουμένων, the Spaniards even to that Day looked upon Robbery as a very honourable Employment. Just so the Jews deny that there is any Satisfaction to be made to an injured Person, if he is neither a Jew nor a Confederate of the Jews.Grotius.
[4. ]Odyss. III. Where the Scholiast says, οὐκ ἄδοξον ἡ̂ν παρὰ τοɩ̂ς παλαιοɩ̂ς τὸ ληστεύειν, ἀλλ’ ἔνδοξον, Robbing was formerly so far from being Infamous, that it was counted Reputable and for a Man’s Honour, (on ver. 71.) Grotius.
[5. ]Lib. I. (Cap. V. Edit. Oxon.) Where he subjoins οὐκ ἔχοντός πω αἰσχύνην τούτου τον̂ ἔργου, ϕέροντος δε τι καὶ δόξης μα̂λλον, This was an Affair that instead of being scandalous, rather carried a Reputation with it.Grotius.
[6. ]Digest. Lib. XLVII. Tit. XXII. De Collegiis & Corporibus, Leg. IV. The learned Salmasius finding here οἰχόμενοι, has corrected it, as it stands in the Text of our Author. But his Conjecture is too bold, and by no Means necessary; as is made appear by Mr. De Bynkershoek, in his Observ. Jur. Lib. I. Cap. XVI. Where he likewise explains and corrects some other Words in this Law, in a Manner different from the best Interpreters.
[7. ]Lib. XLIII. Cap. III. num. 1.
[8. ]Digest. Lib. XLIX. Tit. XV. De Captivis & Postlimin. &c. Leg. V. § 2.
[9. ]Lib. I. Cap. XL. Edit. Oxon.
[10. ]Bell. Jugurth. Cap. XXII. Edit. Wass.
[11. ]War, says the Philosopher, is in its own Nature a gainful and enriching Employment. Hunting is a Branch of it; which is employed against wild Beasts, and such Men, as being born Slaves will not submit to be what they are by Nature. Politic. Lib. I. Cap. VIII. See also Plutarch, De fortunâ vel Virtute Alexand. p. 329. Tom. II. Edit. Wech. and Strabo’s Geography, Lib. I. p. 116. Edit. Amstel.
[12. ]This has been observed by Cicero, among others, which he proves from the Laws of the Twelve Tables, De Officiis, Lib. I. Cap. XII. See the Commentators on that Place.
[13. ]Lib. XLI. Cap. XXIV. (XXIX. 15, 16. Edit. Cleric.)
[14. ]There is, says the Orator, a wide Difference between a Peace (εἰρήνη) and Treaties (σπονδαὶ). The former is made, on equal Conditions, between two People, who lay down their Arms: By the latter the Conqueror imposes Laws on the vanquished, p. 271. Edit. Wechel. Such as Demolition of their Walls, the surrender of their Ships, and recalling their Exiles; as Antipho observes, in the Words immediately following. So that the Difference between those Terms doth not consist precisely in what our Author says; the Distinction relates rather to the publick Agreements mentioned in the following Paragraph.
[1 ]So Pliny says, that the Parthians lived with the Scythians upon one and the same Foot. And Pompey in Lucan speaking of the same Nation of the Parthians says:
[2. ]This Passage certainly belongs to Isocrates, tho’ Pufendorf, who quotes it, has not observed the Mistake. The Words are these: Those, who would preserve their Liberty, ought to avoid Treaties of Injunction (or Treaties forced on them) as approaching to Slavery. In Archidam, p. 126. Edit. H. Steph. Our Author had read, in the Oration here quoted, what Demosthenes says, that the Rhodians, instead of making, as they might have done, an Alliance on equal Terms with the Athenians; who, however, were more powerful than they; chose rather to fall into Slavery, by admitting into their Fortresses Barbarians, who were Slaves; that is Mausolus, King of Caria, Vassal to the King of Persia; which Mausolus assisted the Chiefs of the Rhodians in seizing the Government, and thus in some Manner reigned at Rhodes; as did his Widow Artemisia, after his Demise, supported by those Oppressors of the Publick Liberty, who were her Creatures, p. 79. Edit. Basil. 1572.
[3. ]Polybius, Lib. III. Cap. XXII, Edit. Amstel.
[4. ]The Antients termed it ὁμαιχμίαν, An Union of Spears.Zosimus, Lib. V. (Cap. XLII. and Lib. IV. Cap. LVI. Edit. Cellar.)Grotius.
[5. ]Thus Thucydides tells us, the Athenians made such a defensive Alliance (ἐπιμαχίαν) with those of Corcyra, (Corfu) Lib. I. Cap. XLIV. It appears from what goes before, that the Term ἐπιμαχία is opposed to Συμμαχία, in the Sense given by our Author. See the Scholiast on this Place.
[6. ]Lib. VII. Cap. II. p. 703. Edit. Amst.
[7. ]Plutarch, in Vit. Demetrii, Tom. I. p. 899.
[8. ]See an Instance of this in Procopius, Pers. I. (Cap. II.) Grotius.
[9. ]We have, in Tesmar’s Notes on this Place, some Instances from Thucydides, M. De Thou, Camden, Buchanan, and others.
[1 ]This was one of the Conditions imposed on them by Scipio, as Livy informs us, Lib. XXX. Cap. XXXVII. Num. 4. See also Dion Cassius, Excerpt. Legat. XVI. Polybius, Hist. Excerpt. Lib. XV. Cap. XVII. Our Author, however, doth not express himself exactly in this Place, when he gives us this Clause, as being of the second League between the Romans and Carthaginians. He means the Treaty made after the second Punick War, as he himself speaks in the following Chapter, § 14. where he likewise mentions this burthensome Condition. For there had been several other Treaties between the Romans and Carthaginians, before this; as may be seen in Polybius, Hist. Lib. III. Cap. XXII. &c.
[2. ]This must have been taken from the Excerpta Legationum, collected by Fulvius Ursinus; for I find it not either in The History of the Punick Wars, nor in the Excerpta, collected by Mr. De Peiresc, and published by Henry de Valois.
[3. ]Thus the Samnites, being subdued by Lucius Papirius the Dictator, sued for a Peace, which was granted, on Condition of Cloathing the Roman Army once; and paying them for the Service of one Year. Livy, Lib. VIII. Cap. XXXVI. Num. II. The learned Gronovius, from whom I have taken this Example, gives us some others.
[4. ]Thus King Antiochus, being conquered by Scipio Africanus, bound himself by a Treaty of Peace, not to enter Europe, and to quit all that Part of Asia, which lies on this Side of Mount Taurus.Livy, Lib. XXXVII. Cap. XLVI. Num. 14. See the Treaty made between the Romans and Carthaginians, after the Sicilian War, in Polybius, Lib. III. Cap. XXVII.
[5. ]This Stipulation was made by the Romans, in the Treaties of Peace, already mentioned, with King Antiochus and the Carthaginians, but in such a Manner that the burthensome Condition was attended with something permanent; for they obliged the Vanquished to keep no Elephants for the Use of War. Livy, Lib. XXX. Chap. XXXVII. Num. 3. and Lib. XXXVIII. Cap. XXXVIII. Num. 8.
[1 ]Viz.Antoninus, Cajetanus, Toletus, Molina, Valdesius, Malderus. Grotius.
[a ]Gen. xxxi. 44.
[b ]—— xxi. 27, 28, 29.
[c ]Deut. xxiii. 7.
[d ]—— vii. 1, &c.
[e ]—— xxv. 17, &c.
[f ]2 Sam. v. 11.
[g ]1 Kings v. 12.
[h ]Lev. xix. 18. Deut. xxii. 1.
[i ]John iv. 9. Acts x. 28. xi. 3.
[k ]John iv. 7.
[l ]1 Sam. xxvii. &c.
[1 ]Antiq. Jud. Lib. VIII. Cap. II.
[m ]Judges xi. 16.
[n ]2 Sam. x.
[2. ]He also made a League with Eshcol and Aner, (Gen. xiv. 13.) As David did with Achis and Naashan; Solomon with the Aegyptians; Asa with Benhadad.Grotius.
[o ]Gen. xiv.
[3. ]You have Commendations of them in the Chaldee Targum, in the Books of the Maccabees, and in the Epistle to the Hebrews. Several Christian Emperors and Kings, following them as their Precedent, entered into Treaties and Alliances, either with those who were no Christians at all, or at least not very sound ones; as Constantine with the Goths and Vandals; Justinian with the Lombards; Theodosius, Honorius, Leo, Heraclius, Basil, Isaacius Angelus, Palaeologus, with the Saracens, Alani, Gepidae, Franks, Suevi, and Vandals; Alfonsus Hispalensis, Ramirus, Alfonsus Castus, Sanctius Castellae, Ferdinand the holy, Kings of Spain with the Moors; so Peter King of Leon; the wise Alfinus, King of Castile; Rodolphus Habspurgenses with the Tartars. Consult Johannes de Carthagena, Lib. III. Cap. I. De jure belli Romani Pontificis, Cap. I. and Pope Julius the second made Use of Turkish Troops. Grotius.
[p ]1 Mac. viii. and xii.
[4. ]Josephus, Ἠτιᾳ̑το τη̂ς πρὸς ἄχαβον συμμαχίας ἄνθρωπον ἀσεβη̂ καὶ, πονηρόν, He blamed him for entering into a League with Ahab, an irreligious and wicked Man. Grotius.
[q ]2 Chron. xix. 2.
[5. ]Gratian returned this Answer to his Uncle Valens, who desired his Assistance against the Scythians, Ὡς οὐ δεɩ̂ τῷ ἐχθρῷ τον̂ συμμαχεɩ̂ν, One ought not to engage in any Treaty with a Man who is an Enemy to GOD.Grotius.
[r ]—— xx. 37.
[s ]—— xx. 37.
[6. ]Add Joshua’s Example, Chap. xxii. Grotius.
[t ]2 Chron. xvi. 2, 7.
[u ]—— xvi. 12.
[w ]2 Sam. xxiv.
[x ]2 Kings xx. 13.
[y ]Is. xxxi. 1.
[z ]1 Kings iii. 1.
[aa ]Deut. xxviii. 7.
[bb ]Prov. i. 15. xiii. 20. xxii. 24. xxiv. 1.
[a ]Matt. v. 45.
[1 ]Adversus Marcionem, Lib. IV. Cap. XVI.
[2. ]Lib. VII. Cap. III.
[3. ]Offic. Lib. I. Cap. XXX.
[4. ]Ethic. Nicom. Lib. IV. Cap. XII. p. 54. Tom. II. Edit. Paris.
[b ]2 Thess. iii. 15.
[c ]2 Cor. vi. 14, 15, 16.
[d ]2 Cor. x. 21.
[e ]Acts xxv. 11. xxii. and xxiii.
[1 ]See Phartazas’s Speech to the Lazi in Agathias, Lib. III. and Saxo, Lib. IX. in the Words of Lewis the French King to Harold. It is impossible that there can be any real Friendship and Agreement between Persons of a different Persuasion in sacred Matters; and therefore whoever addresses himself to another for his Assistance, should be sure, in the first Place, to take Care that he is of the same Religion; for they whom different Forms of Worship, and different Notions of GOD, have set at a Distance from each other, can never perform great Exploits together. Grotius.
[2. ]Athenaeus has preserved this Fragment, which evidently regards a Difference in Religion, as appears from the following Verses. Dipnosophist. Lib. VII. Cap. XIII. p. 299, 300. Edit. Casaubon, 1657.
[3. ]Frodoard, or Flodoard, Hist. Eccles. Remensis, Lib. IV. Cap. VI.
[4. ]We have an Instance in Mancafa, in Nicetas’s Account of the Affairs of Isaac Angelus, Lib. XI. where the Piety of Emanuel Duke of Savoy is highly applauded, who, when he could have recovered Cyprus, by the Assistance of the Turks, scorned the Proffer. Grotius.
[5. ]That Historian says, that after the Battle of the Granicus, Alexander sent the Grecians he took in Darius’s Service, in Chains to Macedonia, with Orders to make them work like Slaves, “Because, adds he, being Grecians, they had born Arms for the Barbarians, against Greece.” De Exped. Alexandri, Lib. I. Cap. XVII. Edit. Gronov. Our Author, tho’ he quotes the Original, doth not give the Words exactly. See what the same Historian says in the Close of his first Book.
[1 ]Our Author supposes, without Doubt, that this Enemy of Christianity has taken Arms unjustly against some Christian Power. He could not be of Opinion, that the Interest of Religion ought to be made an Exception to the general Rule, which he lays down for all Sorts of War. He likewise supposes this Enemy not only to be a Turk, a Pagan, or of some other Religion different from Christianity; but also, that he has plainly shewn his Design on all Christians, as such, and only wants an Opportunity of oppressing them all Manner of Ways. Otherwise it would not be the common Cause of all Christians; as he considers it a little lower. See Silhon’s Reflections, in his Minister of State, Part II, Book I. Discourse IV. Besides, it has been justly observed, that, according to the present Dispositions of Christian Princes, such an Alliance would not be of great Service. See a Dissertation by Mr. Budeus, De ratione statûs circa Foedera, printed at Hall, 1696.
[2. ]Upon this Subject see Mariana, Lib. XXX. Paruta, Lib. IV. Bizar, VII. and XII. Grotius.
[3. ]Our Author, as Gronovius observes, means Frederick III. The learned Commentator refers us to a Dissertation, written by Boecler, De Passagiis, to be found in Tom. I. of a Collection published some Years ago. But, tho’ that Emperor had the Thing very much at Heart, and was very pressing with the Pope to engage the other Powers init; nothing was concluded, much less executed. See Nauclerus’s Chronicle, Tom. II. p. 482, 491, 504. Edit. Colon. 1564.
[1 ]See Pufendorf, B. VIII. Chap. IX. § 5.
[2. ]See below, B. II. Chap. XXV. § 4. And in the Form of the Oath of Fealty it is said, If I shall understand that you have a Mind to make an offensive War upon just Grounds, and I shall be either generally, or particularly, required thereunto, I will, to my utmost, give you my Assistance.Grotius.
[3. ]In the Oration quoted by our Author, Demosthenes undertakes to persuade the Athenians to assist the Megalopolitans, a People of Arcadia, against the Lacedemonians. As if no one doubted that, if once the Lacedemonians made themselves Masters of Megalopolis, they would fall on Messena, the Orator remonstrates to the Athenians, that it was their Business to send speedy Relief to the Messenians, their Allies, against those other Allies, both by Vertue of their solemn Treaties, and for their own Interest. Mr. Thomasius, in a Dissertation, De sponsione Romanorum Caudinâ, (which is the sixth of those printed at Leipsick) § 22. &c. maintains, that all Treaties of Alliance, by which a real Confederacy is contracted, but particularly those made for War, of themselves imply this tacit Condition, that no Succours are to be sent to any one, not even to another Ally, against the Power with which the Contract is made. The Reason is, that the War breaking, or at least very much disturbing the Union of the Allies for a certain End, it implies a Contradiction, according to our able Lawyer, that one should engage to take Arms against an Ally, even tho’ done with a Design of succouring another Ally in a just Cause. And as it may be objected, that every one is bound, by the Law of Nature, to defend those who are insulted, or unjustly attacked, if it is in his Power, Mr. Thomasius answers, that this is no more than an imperfect Obligation, or a Duty of Humanity, which ought to give Place to express and formal Engagements. But it only follows from the Reason alledged, that there are some Cases in which an Alliance is broken, or in great Danger of being so; and that the Case in Question is one of that Sort. Whoever treats for an Alliance, and has, or may have other Allies, is, and ought to be supposed, tacitly to agree, that the Power with which he treats will have a Regard for those who are, or shall be, united to him by the like Ties; and be far from thinking of hurting them. Every one’s Interest requires this, as well as his Duty, and the Sentiments he is supposed to entertain. So that assisting an Ally, in a just War, against another Ally, is no more than making Use of a Right included in the Alliance with both; and this Right can cease only by an express Renunciation, such as our Author mentions immediately after, a Renunciation, which is just and reasonable only so far as the Interest of him who makes it, requires he should take Care of himself, preferably to others. Mr. Budeus, who declares for the Opinion here opposed, in his Dissertation intitled Jurisprudentiae Historicae Specimen, § 92. seems not intirely consistent with himself, or with what he says in the foregoing Paragraph.
[4. ]Polybius, Lib. VII. Cap. II. p. 702. Edit. Amstel.
[5. ]The Orator doth not go on the Supposition of the War being unjust on both Sides: His Reason is this, “Not that we decline doing Service to either; but are unwilling to hurt either.” The Tendency of the whole Discourse is to shew, that there was not more Reason for succouring the Lacedemonians than the Thebans; because the Athenians had not received more Good or Harm from one than from the other; and that, moreover, it was their Interest to let them fight. So that the Question here turns on what Prudence demanded, not on the justice or Injustice of the War.
[6. ]By Personal Creditors are meant those whose Right extends to the Person of the Debtor; and is not confined to such and such mortgaged Goods, in Opposition to such Creditors as have a Pledge or a Mortgage. Personal Creditors are in the Roman Law called Chirographarii, because they commonly have some Bond, or Note of Hand, for Security of the Debt. And when there are several such Creditors, if the Debtor’s 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: Whereas Creditors on Mortgage are not only preferred to all personal Creditors; unless these latter have some particular Privilege; but he whose Mortgage is of the oldest Date, takes Place of the Rest; so that if nothing remains, the posterior Creditor loses all. Even in the Case of privileged personal Creditors, if the Privilege is of the same Nature, no Regard is paid to Priority or Posteriority of Time. Digest. Lib. XLII. Tit. V. De rebus auctoritate judicis possidendis. Leg. XXXII. Code, Lib. VIII. Tit. XVIII. Qui potiores in Pignore habeantur, Leg. VIII.
[7. ]See Lib. IV. Cap. XXXI. De Feudis.Grotius.
[8. ]Not the Acarnanians, but the Etolians, make this Reflection by the Mouth of Chlaeneas, their Ambassador, who speaking against the Acarnanians, remonstrates to the Lacedemonians, that by joining the Etolians, they would do nothing to the Prejudice of a more antient Alliance. Lib. IX. Cap. XXV. p. 784, 785. Edit. Amsted.
[9. ]Χρὴ ϕίλοις κατ’ ἐχθρω̂ν συμμαχεɩ̂ν, οὐ κατὰ ϕίλων, Friends ought to join their Forces against Enemies, and not against Friends, says Ptolomy to the Athenians, in Appian, Excerp. legat.Grotius.
[10. ]See Radevicus, I.7. Grotius.
[11. ]By an Edict of Theodorick, Cap. CXXXVIII. Grotius.
[12. ]Lib. VI. Cap. X. Num. 4. This Case is not entirely to the Purpose. The Nepesines having asked Assistance of the Romans, their Allies, and receiving none, were obliged to surrender to the Etrurians; after which they would not revolt from the Obedience promised to the Conqueror, who had made himself Master of the Town. In Order to propose a Question agreeable to the Subject before us, the Question should have been, whether the Etrurians would have thought themselves obliged to assist the Nepesines, after their Surrender, preferably to some other Ally, with whom they had before treated on an equal Foot?
[1 ]See Pufendorf, B. VII. Chap. IX. § 11.
[2. ]Thus, for Example, if one Ally has agreed to give another a certain Sum yearly, and the Payment of the same Sum is made the Year after the Expiration of the Term of the Alliance, the Alliance is renewed for that Year. On the same Principle the Roman Lawyers have decided, that if a Man, who had lent Money for a certain Time, and pays the Interest due on such Money, after the Time is expired, and the Creditor receives it; the latter is supposed to prolong the Term of Payment for that Time. Digest. Lib. II. Tit. XIV. De Pactis, Leg. LVII.
[1 ]See Pufendorf, B. III. Chap. VIII. § 8. and what our Author says, B. III. Chap. XX. § 35. as also a Dissertation by Mr. Budeus, De contraventionibus Foederum, Cap. III. § 14.
[2. ]Lib. I. Cap LXXI. Edit. Oxon. See likewise Cap. CXXIII.
[3. ]Lib. IV. Cap. XXIII.
[1 ]See Pufendorf, B. IV. Chap. IX. § 12, 13.
[2. ]See above, § 3. Num. 6. Note. 11.
[3. ]Livy, Lib. IX. Cap. IX. Num. 16, 17.
[4. ]Ibid. Num. 4, 7.
[5. ]Thomasius, in his Dissertation De Sponsione Romanorum Caudinâ, § 84, &c. confutes our Author’s Opinion. I own, says he, that the Samnites acted imprudently; as appears from the Reflections made by Herennius Pontius, their General’s Father, Livy, Lib. IX. Cap. III. Num. 5, &c. and those of Osilius Calavius, ibid. Cap. VII. Num. 3, &c. and from what Livy himself says, ibid. Cap. XII. But it doth not thence follow, that the Romans were blameless. He, who knowing a Man to be a bad Debtor, lends him Money, without requiring a Pledge or Security, certainly acts imprudently. But the Debtor who refuses Payment, is not less guilty of Dishonesty. The Roman Army, which was shut up in the Defiles of Caudium, made the greatest Part of the People, as Lucius Lentulus, the first Lieutenant General said, Cap. IV. Num. 13, 14. Even though no Presumption could be framed, that the Rest of the Romans who were at Rome, would not consent to the Treaty made by the Consuls, who commanded the Army, might not the Army have obliged themselves validly, in the Extremity to which it was reduced? And ought not the whole Body to have ratified a Treaty made by the Majority, for the Preservation of that Majority? (See what our Author says, § 3. of this Chapter, Num. 2.) One single Town, which makes but a very small Part of a large State, may surrender, and submit to the Power of a victorious Enemy, when nothing but certain Ruin is before them. (See Chap. VI. of this Book, § 5.) Why could not the Roman Army, which was the greatest Part of the Romans, in a like Case, engage themselves not to take Arms any more against the Enemy; especially since it was not thereby cut off from the Body of the State, and might be useful to it in all other Respects, without a Violation of the Treaty? But, even tho’ the Roman People were not directly obliged by the Treaty made with the Samnites, they were engaged indirectly; which our Author cannot deny, without destroying a Principle which he himself lays down, B. III. Chap. XXII. § 3. The Romans having reaped a considerable Advantage from the Treaty in Question, by the Preservation of their Army, ought to have renounced that Advantage, if they were not disposed to stand to it, and have sent back their Troops to the Defiles of Caudium, and left them to the Discretion of the Samnites, as the General of that People very justly observed, Cap. XI. Num. 4. Livy, who makes Pontius reason in this Manner, expresses a Doubt concerning the Conduct of the Romans on that Occasion. He says, that when the Samnites sent back the Authors of the Treaty, whom the Romans offered to deliver up to them, the Promise of those Authors was disengaged, and perhaps, adds the Historian, the publick Faith. Ibid. Num. 13.
[6. ]Lib. II. Cap. I.
[7. ]The Numantines thought it equitable, that if the Engagement was not approved of, the Army which was set at Liberty upon that Engagement, should be delivered up to them. Grotius.
[8. ]The Speech of Lentulus, in Chap. IV. of Book IX. of Livy, shews plainly, that the Agreement was made in the Name, and by the Order of the whole Army. That Lieutenant-General speaks in their Name. They were present; their bare Silence ought to be considered as a real Approbation of all that was done.
[9. ]It appears from the Title of this Treaty, that it was made by Hannibal, in Conjunction with his Officers, the Senators of Carthage, who were with him, and all the Soldiers. See Polybius, Lib. VII. Cap. II. p. 699. Edit. Amstel.
[10. ]These were two Consuls, two Quaestors, four Prefects, and twelve Tribunes, as Appian relates it. These were all by the Treaty of Caudium surrendered; but by the Treaty of Numantia, only one Consul; the Rest were spared on the Account of Tiberias Gracchus, as Plutarch says in the Lives of the Gracchi.Grotius.
[11. ]Pontius the Son, in Appian, τω̂ν τε ἱππέων, &c. I will pick out some of the Principal of the Cavalry for Hostages of these Articles, till the whole Body of the People ratify and confirm them. The Portuguese, in a like Affair, judged it sufficient that the Hostages were left to the Discretion of him who had them in his Custody. Mariana XXI. 12. If they accept of those who are delivered up to them, they are looked upon to remit the Penalty.Polybius, Excerp. CXXII. Grotius.
[12. ]It appears evidently, that, on the contrary, “the Consuls declined treating, because they had no Commission from the People.” Livy, Lib. IX. Cap. V. Num. 1.
[13. ]Livy, Lib. IX. Cap. V. Num. 5.
[14. ]See Chap. XXI. of this Book, § 11.
[15. ]Diodorus Siculus, in Excerpt. Peires.Valerius Maximus, IV. Cap. VIII. Grotius.
[16. ]Dion, Excerpt. legat. V. Grotius.
[1 ]Disertè. That is, when the Sovereign doth not expressly ratify the Treaty made in his Name, without his Order. In Reality, when we speak of Ratification, in a Case like this, we certainly mean an express Ratification; and that the rather, because a short Time is usually fixed for the Ratification; so that, in the Interval, it is impossible to have a Conjecture strong enough drawn from Silence. Besides, by annexing the Condition of Ratification, a Doubt was implied, whether the sovereign Power would think proper to ratify the Treaty. Whereas, when a Treaty has been made purely and simply, the Party seems to have supposed, either that he had a Power to treat, or could easily obtain a Ratification; and the Treaty is confined to no Term.
[2. ]For Lutatius had inserted this Clause, that the Agreement should be good and valid, only in Case it was approved of by the Roman People.Livy, Lib. XXI. Cap. XIX. Num. 3. See also Polybius, Lib. III. Cap. XXI.
[3. ]See likewise Polybius, Lib. I. Cap. LXII. LXIII.
[4. ]Livy, Lib. XXI. Cap. XIX. Num. 3.
[5. ]That is, should not pass over it, in Order to make War. Polybius, Lib. III. Cap. XXIX.
[6. ]These are treated of in Chap. XXII. and XXIII. of the third Book. Mr. Thomasius, in his Dissertation De Sponsione Romanorum Caudinâ, § 47. criticises this Division of our Author as unexact; for, says he, these Agreements made by Generals, or Soldiers, concerning their private Affairs, are therefore private, not publick Agreements. But our Author places them among publick ones, because, tho’ they most commonly relate only to the private Concerns of the Generals, Officers, or Soldiers, they make them as publick Persons, and on Account of the War, which is a publick Affair. Add to this, that several Questions arise here, which have some Relation to publick Agreements; as will appear from the Chapters already referred to.