BOOK II. CHAP. XIV. tensions as far as the public welfare will allow. For, we ought never to abuse the generosity and noble confidence even of an enemy. Puffendorf* thinks that the treaty at the Furce Caudinæ contained nothing that was too severe or insupportable. That author seems to make no great account of the shame and ignominy with which it would have branded the whole republic. He did not see the full extent of the Roman policy, which would never permit them, in their greatest distresses, to accept a shameful treaty, or even to make peace on the footing of a conquered nation:-a sublime policy, to which Rome was indebted for all her greatness. Finally, let us observe, that, when the inferior power has, without orders, and without authority, concluded an equitable and honourable treaty, to rescue the state from an imminent danger, if the sovereign afterwards, on seeing himself thus delivered, should refuse to ratify the treaty, not because he thinks it a disadvantageous one, but, merely through a wish to avoid performing those conditions which were annexed as the price of his deliverance, he would certainly act in opposition to all the rules of honour and equity. This would be a case in which we might apply the maxim, summum jus, summa injuria. To the example we have drawn from the Roman history, let us add a famous one taken from modern history. The Swiss, dissatisfied with France, entered into an alliance with the emperor against Louis XII. and made an irruption into Burgundy, in the year 1513. They laid siege to Dijon. La Trimouille, who commanded in the place, fearing that he should be unable to save it, treated with the Swiss, and, without waiting for a commission from the king, concluded an agreement, by virtue of which the king of France was to renounce his pretensions to the duchy of Milan, and to pay the Swiss, by settled instalments, the sum of six hundred thousand crowns; whereas the Swiss, on their side, promised nothing further than to return home to their own country,—thus remaining at liberty to attack France again, if they thought proper. They received hostages, and departed. The king was very much dissatisfied with the treaty, though it had saved Dijon, and rescued the kingdom from an imminent and alarming danger; and he [226] refused to ratify it." It is certain that La Trimouille had exceeded the powers he derived from his commission, especially in promising that the king should renounce the duchy of Milan. It is probable, indeed, that his only view was to rid himself of an enemy whom it was less difficult to overreach in negotiation than to subdue in battle. Louis was not obliged to ratify and execute a treaty concluded without orders and without authority; and, if the Swiss were deceived, they ? 12. Jus Nat. et Gent. lib. viii. cap. ix. † Guicciardini, book xii. chap. ii.-De Watteville's History of the Helvetic Confederacy, part ii. p. 185, &c. could only blame their own imprudence. But, as it manifestly BOOK II. appeared that La Trimouille did not behave towards them with CHAP. XIV. candour and honesty, since he had deceived them on the subject of the hostages, by giving, in that character, men of the meanest rank, instead of four of the most distinguished citizens, as he had promised,*-the Swiss would have been justifiable in refusing to make peace without obtaining satisfaction for that act of perfidy, either by the surrender of him who was the author of it, or in some other manner. tracts of the sovereign. The promises, the conventions, all the private contracts of 213. Pri8 the sovereign, are naturally subject to the same rules as those vate conof private persons. If any difficulties arise on the subject, it is equally conformable to the rules of decorum, to that delicacy of sentiment which ought to be particularly conspicuous in a sovereign, and to the love of justice, to cause them to be decided by the tribunals of the state. And such indeed is the practice of all civilized states that are governed by settled laws. private per The conventions and contracts which the sovereign, in his 3 214. Consovereign character and in the name of the state, forms with tracts made private individuals of a foreign nation, fall under the rules by him with we have laid down with respect to public treaties. In fact, sons in the when a sovereign enters into a contract with one who is name of the wholly independent of him and of the state, whether it be state. with a private person, or with a nation or sovereign, this circumstance does not produce any difference in the rights of the parties. If the private person who has treated with the sovereign is his subject, the rights of each party in this case also are the same: but there is a difference in the manner of deciding the controversies which may arise from the contract. That private person, being a subject of the state, is obliged to submit his pretensions to the established courts of justice. It is added by some writers on this subject, that the sovereign may rescind those contracts, if they prove inimical to the public welfare. Undoubtedly he may do so, but not upon any principle derived from the peculiar nature of such contracts: [227] —it must be either upon the same principle which invalidates even a public treaty when it is ruinous to the state and inconsistent with the public safety, or by virtue of the eminent domain, which gives the sovereign a right to dispose of the property of the citizens with a view to the common safety. We speak here of an absolute sovereign. It is from the constitution of each state that we are to learn who are the persons, and what is the power, entitled to contract in the name of the state, to exercise the supreme authority, and to pronounce on what the public welfare requires. When a lawful power contracts in the name of the state, it ? 215. They lays an obligation on the nation itself, and consequently on are binding * See De Watteville's History of the Helvetic Confederacy, p. 190. on the na BOOK II. all the future rulers of the society. When, therefore, a prince CHAP. XIV. has the power to form a contract in the name of the state, he tion, and on lays an obligation on all his successors; and these are not less bound than himself to fulfil his engagements. his succes sors. 2216. Debts reign and the state. The conductor of the nation may have dealings of his own, of the sove- and private debts; and his private property alone is liable for the discharge of such debts. But loans contracted for the service of the state, debts incurred in the administration of public affairs, are contracts in all the strictness of law, and obligatory on the state and the whole nation, which is indispensably bound to discharge those debts.* When once they have been contracted by lawful authority, the right of the creditor is indefeasible. Whether the money borrowed has been turned to the advantage of the state, or squandered in foolish expenses, is no concern of the person who has lent it: he has intrusted the nation with his property, and the nation is bound to restore it to him again: it is so much the worse for her, if she has committed the management of her affairs. to improper hands. This maxim, however, has its bounds, founded even on the nature of the thing. The sovereign has not, in general, a power to render the state or body corporate liable for the debts he contracts, unless they be incurred with a view to the national advantage, and in order to enable him to provide for all occurrences. If he is absolute, it belongs to him alone to decide, in all doubtful cases, what the welfare and safety of the state require. But, if he should, without necessity, contract debts of immense magnitude and capable of ruining the nation for ever, there could not then exist any doubt in the case the sovereign has evidently acted without authority; and those who have lent him their money have imprudently [228] risked it. It cannot be presumed that a nation has ever consented to submit to utter ruin through the caprice and foolish prodigality of her ruler. As the national debts can only be paid by contributions and taxes, wherever the sovereign has not been intrusted by the nation with a power to levy taxes and contributions, or, in short, to raise supplies by his own authority, neither has he a power to render her liable for what he borrows, or to involve the state in debt. Thus, the king of England, who has the right of making peace and war, has not that of contract In 1596, Philip II. declared him- could no longer find any one who was self a bankrupt, under pretence that an willing to lend him money; and his unfair advantage had been taken of his affairs suffered so severely in consenecessities. His creditors loudly ex- quence, that he was obliged to replace claimed against his conduct, and as- things on their former footing, and to serted that no confidence could thence- heal the wound which he had given to forward be placed either in his word or the public faith.-Grotius, Hist. of his treaties, since he interposed the the Disturbances in the Netherlands, royal authority to supersede them. He book CHAP. XIV. ing national debts, without the concurrence of parliament: BOOK II. because he cannot, without their concurrence, levy any money. on his people. the sove reign. The case is not the same with the donations of the sove- 217. Doreign as with his debts. When a sovereign has borrowed nations of without necessity, or for an unwise purpose, the creditor has intrusted the state with his property; and it is just that the state should restore it to him, if at the time of the transaction, he could entertain a reasonable presumption that it was to the state he was lending it. But, when the sovereign gives away any of the property of the state,-a part of the national domain,-a considerable fief,-he has no right to make such grant except with a view to the public welfare, as a reward for services rendered to the state, or for some other reasonable cause, in which the nation is concerned if he has made the donation without reason, and without a lawful cause, he has made it without authority. His successor, or the state, may at any time revoke such a grant; nor would the revocation be a wrong done to the grantee, since it does not deprive him of any thing which he could justly call his own. What we here advance holds true of every sovereign whom the law does not expressly invest with the free and absolute disposal of the national property: so dangerous a power is never to be founded on presumption. Immunities and privileges conferred by the mere liberality of the sovereign, are a kind of donations, and may be revoked in the same manner, if they prove detrimental to the state. But a sovereign cannot revoke them by his bare authority, unless he be absolute: and, even in this case, he ought to be cautious and moderate in the exertion of his power, uniting an equal share of prudence and equity on the occasion. Immunities granted for particular reasons, or with a view to some return, partake of the nature of a burdensome contract, and can only be revoked in case of abuse, or when they become incompatible with the safety of the state. And if they be suppressed on this latter account, an indemnification is due to those who enjoyed them. CHAP. XV. OF THE FAITH OF TREATIES. [229] CHAP. XV. cred among THOUGH we have sufficiently established (§§ 163 and 164) 218. the indispensable necessity of keeping promises, and observ. What is saing treaties, the subject is of such importance, that we cannot nations. forbear considering it here in a more general view, as interesting, not only to contracting parties, but likewise to all nations, and to the universal society of mankind. BOOK II. Every thing which the public safety renders inviolable is CHAP. XV. sacred in society. Thus, the person of the sovereign is sacred, because the safety of the state requires that he should be in perfect security, and above the reach of violence: thus the people of Rome declared the persons of their tribunes sacred, -considering it as essential to their own safety that their defenders should be screened from all violence, and even exempt from fear. Every thing, therefore, which the common safety of mankind and the peace and security of human society require to be held inviolable, is a thing that should be sacred among nations. 2219. Trea cred between na tions. Who can doubt that treaties are in the number of those ties are sa- things that are to be held sacred by nations? By treaties the most important affairs are determined; by them the pretensions of sovereigns are regulated; on them nations are to depend for the acknowledgment of their rights, and the security of their dearest interests. Between bodies politic,-between sovereigns who acknowledge no superior on earth,treaties are the only means of adjusting their various pretensions,―of establishing fixed rules of conduct,―of ascertaining what they are entitled to expect, and what they have to depend on. But treaties are no better than empty words, if nations do not consider them as respectable engagements, -as rules which are to be inviolably observed by sovereigns, and held sacred throughout the whole earth. ties is sa cred. ? 220. The The faith of treaties,-that firm and sincere resolution,faith of trea- that invariable constancy in fulfilling our engagements,-of which we make profession in a treaty, is therefore to be held sacred and inviolable between the nations of the earth, whose safety and repose it secures: and, if mankind be not wilfully deficient in their duty to themselves, infamy must ever be the portion of him who violates his faith. violates the law of na tions. ? 221. He He who violates his treaties, violates at the same time the who violates law of nations; for, he disregards the faith of treaties,-that his treaties, faith which the law of nations declares sacred; and, so far as depends on him, he renders it vain and ineffectual. Doubly guilty, he does an injury to his ally, he does an injury to all nations, and inflicts a wound on the great society of mankind. [230] "On the observance and execution of treaties," said a respectable sovereign, "depends all the security which princes and states have with respect to each other: and no dependence could henceforward be placed in future conventions if the existing ones were not to be observed."* ? 222. Right As all nations are interested in maintaining the faith of of nations treaties, and causing it to be everywhere considered as sacred against him and inviolable, so likewise they are justifiable in forming a who disre- confederacy for the purpose of repressing him who testifies a Resolution of the States-General, to the Memorial of the Marquis de St. of the 15th of March, 1726, in answer Philip, Ambassador of Spain. |