BOOK II. ticular instance, where we cannot take advantage of the perCHAP. XVII. mission without violating a positive duty. 8 313. 2d Rule. ? 314. 3d Rule. 2. In the same manner, the law or treaty which permits, ought to give way to the law or treaty which forbids: for the prohibition must be obeyed; and what was, in its own nature, or in general, permitted, must not be attempted when it cannot be done without contravening a prohibition: the permission, in that case, ceases to be available. 3. All circumstances being otherwise equal, the law or the treaty which ordains, gives way to the law or the treaty which forbids. I say, "all circumstances being otherwise equal;" for many other reasons may occur, which will authorize the exception being made to the prohibitory law or treaty. The rules are general; each relates to an abstract idea, and shows what follows from that idea, without derogation to the other rules. Upon this footing, it is evident that, in general, if we cannot obey an injunctive law without violating a prohibitory one, we should abstain from fulfilling the former: for the prohibition is absolute in itself, whereas every precept, every injunction, is in its own nature conditional, and supposes the power, or a favourable opportunity, of doing what is prescribed. Now when that cannot be accomplished without contravening a prohibition, the opportunity is wanting, and this collision of laws produces a moral impossibility of acting; for what is prescribed in general, is no longer so in the case [272] where it cannot be done without committing an action that is forbidden. Upon this ground rests the generally received maxim that we are not justifiable in employing unlawful means to accomplish a laudable end,-as, for instance, in stealing with a view to give alms. But it is evident that the question here regards an absolute prohibition, or those cases to which the general prohibition is truly applicable, and therefore equivalent to an absolute one: there are, however, many prohibitions to which circumstances form an exception. Our meaning will be better explained by an example. It is expressly forbidden, for reasons to me unknown, to pass through a certain place under any pretence whatsoever. I am ordered to carry a message; I find every other avenue shut; I therefore turn back rather than take my passage over that ground which is so strictly forbidden. But if the prohibition to pass be only a general one, with a view to prevent any injury being done to the productions of the soil, it is easy for me to judge that the orders with which I am charged ought to form an exception. As to what relates to treaties, we are not obliged to accomplish what a treaty prescribes, any farther than we have The prohibitory law creates, in that particular instance, an exception to the injunctive law. "Deinde utra lex jubeat, utra vetet. Nam sæpe ea quæ vetat, quasi exceptione quadam, corrigere videtur illam quæ jubet."-Cicero, de Inventione, lib. ii. 145. BOOK II. the power. Now, we have not a power to do what another treaty forbids: wherefore, in case of collision, an exception CHAP. XVII. is made to the injunctive treaty, and the prohibitory treaty has a superior claim to our observance,-provided, however, that all circumstances be in other respects equal; for it will presently appear, for instance, that a subsequent treaty cannot derogate from a prior one concluded with another state, nor hinder its effect directly or indirectly. 4. The dates of laws or treaties furnish new reasons for ? 315. 4th establishing the exception in cases of collision. If the col- Rule. lision happen between two affirmative laws, or two affirmative treaties concluded between the same persons or the same states, that which is of more recent date claims a preference over the older one for it is evident, that since both laws or both treaties have emanated from the same power, the subsequent act was capable of derogating from the former. But still this is on the supposition of circumstances being in other respects equal. If there be a collision between two treaties made with two different powers, the more ancient claims the preference: for no engagement of a contrary tenor could be contracted in the subsequent treaty; and if this latter be found, in any case, incompatible with that of more ancient date, its execution is considered as impossible, because the person promising had not the power of acting contrary to his antecedent engagements. 5. Of two laws or two conventions, we ought (all other cir- q 316. 5th cumstances being equal) to prefer the one which is less general, Rule. and which approaches nearer to the point in question: because special matter admits of fewer exceptions than that [273 ] which is general; it is enjoined with greater precision, and appears to have been more pointedly intended. Let us make use of the following example from Puffendorf:*-One law forbids us to appear in public with arms on holidays; another law commands us to turn out under arms, and repair to our posts, as soon as we hear the sound of the alarm-bell. The alarm is rung on a holiday. In such case we must obey the latter of the two laws, which creates an exception to the former. 6. What will not admit of delay, is to be preferred to what & 317. 6th may be done at another time. For this is the mode to recon- Rule. cile every thing, and fulfil both obligations; whereas, if we gave the preference to the one which might be fulfilled at another time, we would unnecessarily reduce ourselves to the alternative of failing in our observance of the other. 7. When two duties stand in competition, that one which is 318. 7th the more considerable, the more praiseworthy, and productive Rule. of the greater utility, is entitled to the preference. This rule has no need of proof. But as it relates to duties that are Jus Gent. lib. v. cap. xii. ? 23. BOOK II. equally in our power, and, as it were, at our option, we should CHAP. XVII carefully guard against the erroneous application of it to two duties which do not really stand in competition, but of which the one absolutely precludes the other, our obligation to fulfil the former wholly depriving us of the liberty to perform the latter. For instance, it is a more praiseworthy deed to defend one nation against an unjust aggressor, than to assist another in an offensive war. But, if the latter be the more ancient ally, we are not at liberty to refuse her our assistance and give it to the former; for we stand pre-engaged. There is not, strictly speaking, any competition between these two duties: they do not lie at our option: the prior engage ment renders the second duty, for the present, impracticable. However, if there were question of preserving a new ally from certain ruin, and that the more ancient ally were not reduced to the same extremity, this would be the case to which the foregoing rule should be applied. As to what relates to laws in particular, the preference is undoubtedly to be given to the more important and necessary ones. This is the grand rule to be observed whenever they are found to clash with each other; it is the rule which claims the greatest attention, and is therefore placed by Cicero at the head of all the rules he lays down on the subject.* It is counteracting the general aim of the legislature, and the great end of the laws, to neglect one of great importance, under [274] pretence of observing another which is less necessary, and of inferior consequence: in fact, such conduct is criminal; for, a lesser good, if it exclude a greater, assumes the nature of an evil. 2319. 8th Rule. 8 320. 9th Rule. 8. If we cannot acquit ourselves at the same time of two things promised to the same person, it rests with him to choose which of the two we are to perform; for he may dispense with the other on this particular occasion; in which case there will no longer be any collision of duties. But if we cannot obtain a knowledge of his will, we are to presume that the more important one is his choice; and we should of course give that the preference. And, in case of doubt, we should perform the one to which we are the more strongly bound;-it being presumable that he chose to bind us more strongly to that in which he is more deeply interested. 9. Since the stronger obligation claims a preference over the weaker, if a treaty that has been confirmed by an oath happens to clash with another treaty that has not been sworn to,-all circumstances being in other respects equal, the preference is to be given to the former; because the oath adds a "Primum igitur leges oportet contendere, considerando utra lex ad majores, hoc est, ad utiliores, ad honestiores, ac magis necessarias res pertineat. Ex quo conficitur ut, si leges duæ, aut si plures, aut quotquot erunt, conservari non possint quia discrepent inter se, ea maxime conservanda putetur, quæ ad maximas res pertinere videatur." Cicero, ubi supra. new force to the obligation. But as it makes no change in BOOK II. the nature of treaties (§§ 221, &c.), it cannot, for instance, CHAP. XVII. entitle a new ally to a preference over a more ancient ally, whose treaty has not been confirmed by an oath. 10. For the same reason, and, all circumstances being in 3 321. 10th other respects equal, what is enjoined under a penalty claims Rule. a preference over that which is not enforced by one, and what is enjoined under a greater penalty, over that which is enforced by a lesser; for the penal sanction and convention give additional force to the obligation: they prove that the object in question was more earnestly desired,* and the more so in proportion as the penalty is more or less severe. mark on the manner of All the rules contained in this chapter ought to be com- 3322. Gebined together, and the interpretation be made in such manner neral reas to accord with them all, so far as they are applicable to the case. When these rules appear to clash, they reciprocally observing all counterbalance and limit each other, according to their strength the precedand importance, and according as they more particularly be- ing rules. long to the case in question. CHAP. XVIII. OF THE MODE OF TERMINATING DISPUTES BETWEEN NATIONS. CHAP. XVIII. THE disputes that arise between nations or their rulers, 323. Georiginate either from contested rights or from injuries received. neral direcA nation ought to preserve the rights which belong to her; tion on this and the care of her own safety and glory forbids her to sub- subject. mit to injuries. But in fulfilling the duty which she owes to herself, she must not forget her duties to others. These two [ 275 ] views, combined together, will furnish the maxims of the law of nations respecting the mode of terminating disputes between different states. tion is bound to What we have said in Chap. I. IV. and V. of this book, 324. dispenses with our proving here, that a nation ought to do Every najustice to all others with respect to their pretensions, and to remove all their just subjects of complaint. She is therefore give satisbound to render to each nation what is her due,-to leave her faction rein the peaceable enjoyment of her rights,-to repair any specting the damage that she herself may have caused, or any injury she just commay have done, to give adequate satisfaction for such inju- another. ries as cannot be repaired, and reasonable security against any injury which she has given cause to apprehend. These are so many maxims evidently dictated by that justice which This is also the reason which Cicero gives: "Nam maxime conservanda est ea [lex] quæ diligentissime sancta est." plaints of BOOK II. nations as well as individuals are, by the law of nature, bound CHAP. XVIII. to observe. 2325. How their rights and just Every one is at liberty to recede from his right, to relinnations may quish a just subject of complaint, and to forget an injury. abandon But the ruler of a nation is not, in this respect, so free as a private individual. The latter may attend solely to the voice complaints. of generosity; and, in an affair which concerns none but himself alone, he may indulge in the pleasure which he derives from doing good, and gratify his love of peace and quiet. The representative of a nation, the sovereign, must not consult his own gratification, or suffer himself to be guided by his private inclinations. All his actions must be directed to the greatest advantage of the state, combined with the general interests of mankind, from which it is inseparable. It behooves the prince, on every occasion, wisely to consider and firmly to execute, whatever is most salutary to the state, most conformable to the duties of the nation towards other states, and, at the same time, to consult justice, equity, humanity, sound policy, and prudence. The rights of the nation are a property of which the sovereign is only the trustee; and he ought not to dispose of them in any other manner than he has reason to presume the nation herself would dispose of them. And, as to injuries, it is often laudable in a citizen generously to pardon them: he lives under the protection of the laws; the magistrates are capable of defending or avenging him against those ungrateful or unprincipled wretches whom his indulgence might encourage to a repetition of the offence. A nation has not the same security: it is seldom safe for her to overlook or forgive an injury, unless she evidently possess sufficient power to crush the rash aggressor who has dared to offend her. In such a case, indeed, it will reflect glory on her to pardon those who acknowledge their faults,- [ 276 ] The duty of a sove independent state to in Parcere subjectis, et debellare superbos; and she may do it with safety. But between powers that are nearly equal, the endurance of an injury without insistreign of an ing on complete satisfaction for it, is almost always imputed to weakness or cowardice, and seldom fails long to subject. sist on com- the injured party to further wrongs of a more atrocious nature. pensation Why do we often see the very reverse of this conduct pursued for wrongs by those who fancy themselves possessed of souls so highly to his sub- exalted above the level of the rest of mankind? Scarcely can they receive concessions sufficiently humble from weaker states who have had the misfortune to offend them; but to those whom they would find it dangerous to punish, they behave with greater moderation. jects. 2326. Means sug If neither of the nations who are engaged in a dispute thinks proper to abandon her right or her pretensions, the contending parties are, by the law of nature, which recomnature, for mends peace, concord, and charity, bound to try the gentlest gested by the law of |