to ratify it? We fhould here diftinguish the nature of the things that have been executed, and that of the advantages which have thence accrued to the ftate. He who, having treated with a public perfon not furnished with fufficient powers, executes the agreement on his fide without waiting for its ratification, is guilty of imprudence, and commits an egregious error, into which he has not been led by the state with which he supposes he has contracted. If he has given up any part of his property, the other party is not justifiable in taking advantage of his folly, and retaining poffeffion of what he has fo given. Thus, when a ftate, thinking fhe has concluded a peace with the enemy's general, has in confequence delivered up one of her ftrong places, or given a fum of money, the fovereign of that general is undoubtedly bound to reftore what he has received, if he does not chufe to ratify the agreement. To act otherwife would be enriching himfelf with another's property, and retaining that property without having any title to it.

But if the agreement has given nothing to the ftate which she did not before poffefs,-if, as in that of the Furcæ Caudinæ, the advantage fimply confifts in her efcape from an impending danger, her prefervation from a threatened lofs,-fuch advantage is a boon of fortune, which fhe may enjoy without fcruple. Who would refufe to be faved by the folly of his enemy? And who would think himself obliged to indemnify that enemy for the advantage he had fuffered to escape him, when no fraud had been ufed to induce him to forego that advantage? The Samnites pretended, that if the Romans would not ratify the treaty made by their confuls, they ought to fend back the army to the Furce Caudine, and restore every thing to its former ftate. Two tribunes of the people, who had been in the number of the Sponfores, and wifhed to avoid being delivered up, had the affurance to maintain the fame doctrine; and fome authors have declared themselves of their opinion. What! the Samnites take advantage of conjunctures in order to give law to the Romans, and to wreft from them a fhameful treaty,-they are fo imprudent as to treat with the confuls who exprefsly declare themselves unauthorised to contract for the ftate,-they fuffer the Roman army to escape, after having covered them with infamy,-and fhall not the Romans take advantage of the folly of an enemy fo void of generosity? Muft they either ratify a fhameful treaty, or restore to that enemy all thofe advantages which the fituation of the ground had given him, but which he had loft merely through his own folly? Upon what principle can fuch a decifion be founded? Had Rome promised any thing to the Samnites? had the prevailed upon them to let her army go, previous to the ratification of the agreement made by the confuls?--If she had received any thing in confequence of that agreement, she would have been bound to reftore it, as we have already faid, because the would have poffcffed it without a title, on declaring the treaty null. But the had no fhare in the conduct of her enemies: fhe did not contribute to the egregious blunder they had committed;

and

and fhe might as juftly take advantage of it, as generals in war do of the miftakes of an unfkilful opponent. Suppofe a conqueror, after having concluded a treaty with minifters who have exprefsly referved the ratification to their mafter, fhould have the imprudence to abandon all his conquefts without waiting for fuch ratification,-muft the other, with a foolish generofity, invite him back to take poffeflion of them again, in cafe the treaty be not ratified?

I confefs, however, and freely acknowledge, that if the enemy who suffer an entire army to escape on the faith of an agreement concluded with the general, who is unprovided with fufficient powers, and a fimple fponfor,-I confefs, I fay, that if the enemy have behaved generously,-if they had not availed themselves of their advantages to dictate fhameful or too fevere conditions, equity requires that the ftate fhould either ratify the agreement, or conclude a new treaty on just and reasonable conditions, abating even of her pretenfions 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 Caudine contained nothing that was too fevere or infupportable. That author feems to make no great account of the fhame and ignominy with which it would have branded the whole republic. He did not fee the full extent of the Roman policy, which would never permit them, in their greatest diftreffes, to accept a fhameful treaty, or even to make peace on the footing of a conquered nation :-a fublime policy, to which Rome was indebted for all her greatness.

Finally, let us obferve, that, when the inferior power has, without orders, and without authority, concluded an equitable and honourable treaty, to refcue the ftate from an imminent danger, -if the fovereign afterwards, on fecing himfelf thus delivered, fhould refufe to ratify the treaty, not because he thinks it a difadvantageous one, but merely through a wish to avoid performing thofe conditions which were annexed as the price of his deliverance, he would certainly act in oppofition to all the rules of honour and equity. This would be a cafe in which we might apply the maxim, fummum jus, fumma injuria.

To the example we have drawn from the Roman history, let us add a famous one taken from modern history. The Swifs, diffatisfied 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 Swifs, and, without waiting for a commiffion from the king, concluded an agreement, by virtue of which the king of France was to renounce his pretenfions to the duchy of Milan, and to pay the Swifs, by fettled inftalments, the fum of fix hundred thoufand crowns; whereas the Swifs, on their fide,

$273. Private

cont acts of the fove

reign.'

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 hoftages, and departed. The king was very much diffatisfied with the treaty, though it had faved Dijon, and refcued the kingdom from an imminent and alarming danger; and he refufed to ratify it. It is certain that La Trimouille had exceeded the powers he derived from his commiflion, efpecially in promifing 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 lefs difficult to over-reach in negotiation than to fubdue in battle. Louis was not obliged to ratify and execute a treaty concluded without or ders and without authority; and if the Swifs were deceived, they could only blame their own imprudence. But as it manifeftly appeared that La Trimouille did not behave towards them with candor and honefty, fince he had deceived them on the subject of the hoftages, by giving, in that character, men of the meaneft rank, inftead of four of the moft diftinguished citizens, as he had promifed the Swifs would have been juftifiable in refufing to make peace without obtaining fatisfaction for that act of perfidy, either by the furrender of him who was the author of it, or in fome other manner.

The promifes, the conventions, all the private contracts of the fovereign, are naturally fubject to the fame rules as thofe of private perfons. If any difliculties arife on the fubject, it is equally conformable to the rules of decorum, to that delicacy of fentiment which ought to be particularly confpicuous in a fovereign, and to the love of juftice, to caufe them to be decided by the tribunals of the ftate. And fuch indeed is the practice of all civilifed ftates that are governed by fettled laws.

8274. The conventions and contracts which the fovereign, in his Contracts fovereign character and in the name of the ftate, forms with primade by him with vate individuals of a foreign nation, fall under the rules we have private per-laid down with refpect to public treaties. In fact, when a fovefons in the reign enters into a contract with ore who is wholly independent name of the of him and of the ftate, whether it be with a private perfon, or

ftate.

with a nation or fovereign, this circumftance does not produce any difference in the rights of the parties. If the private perfon who has treated with a fovereign is his fubject, the rights of each party in this cafe alfo are the fame: but there is a difference in the manner of deciding the controverfies which may arife from the contract. That private perfon, being a subject of the state, is obliged to fubmit his pretenfions to the eftablifhed courts of juftice. It is added by fome writers on this fubject, that the fovereign may refcind thofe contracts, if they prove inimical to the public welfare. Undoubtedly he may do fo, but not upon any principle derived from the peculiar nature of fuch con

*Guicciardini, book xii. chap. ii.-De Watteville's Hift. of the Helvetic Confederacy, part ii. p. 185, &c.

+ See De Watteville's Hift. of the Helvetic Confederacy, p. 190.

tracts:

tracts:-it must be either upon the fame principle which invalidates even a public treaty when it is ruinous to the state and inconfiftent with the public fafety,-or by virtue of the eminent domain, which gives the fovereign a right to difpofe of the property of the citizens with a view to the common fafety. We fpeak here of an abfolute fovereign. It is from the conítitution. of each state that we are to learn who are the perfons, and what is the power, entitled to contract in the name of the state, to exercife the fupreme authority, and to pronounce on what the public welfare requires.

When a lawful power contracts in the name of the ftate, it lays $215. an obligation on the nation itfelf, and confequently on all the fu-They are ture rulers of the fociety. When therefore a prince has the the nation, power to form a contract in the name of the ftate, he lays an and on his obligation on all his fucceffors; and thefe are not lefs bound fucceffors. than himself to fulfil his engagements.

fovereign

The conductor of the nation may have dealings of his own, 216. and private debts; and his private property alone is liable for the Debts of the discharge of fuch debts. But loans contracted for the fervice of and the the state, debts incurred in the adminiftration of public affairs, state. are contracts in all the ftrictnefs of law, and obligatory on the ftate and the whole nation, which is indifpenfably bound to dif charge those debts *. When once they have been contracted by lawful authority, the right of the creditor is indefcafible. Whether the money borrowed has been turned to the advantage of the ftate, or fquandered in foolish expenfes, is no concern of the perfon who has lent it: he has intrufted the nation with his property; and the nation is bound to reftore it to him again: it is fo much the worfe for her if the 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 fovereign has not, in general, a power to render the state or body corporate liable for the debts he contracts, unlefs they be incurred with a view to the national advantage, and in order to enable him to provide for all occur. rences. If he is abfolute, it belongs to him alone to decide, in all doubtful cafes, what the welfare and fafety of the ftate require. But if he fhould, without neceflity, contract debts of immenfe magnitude and capable of ruining the nation for ever, there could not then exift any doubt in the cafe: the fovereign has evidently acted without authority; and those who have lent him their money, have imprudently rifked it. It cannot be pre

* In 1596, Philip II. declared himself a bankrupt, under pretence that an unfair advantage had been taken of his necellities. His creditors loadly exclined against his conduct, and afferted that no confidence could thenceforward be p'a ed either in his word or his treaties, fince he interpofed the royal authority to fupercede them. He could no longer find any one who was willing to lend him money; and his affairs fuffered to feverely in confequence, that he was obliged to replace things on their former footing, and to led the wound which he had given to the public faith. Grotius, Hift. of the Disturbances in the Netherlands, book v.

fumed

fumed that a nation has ever confented to fubmit 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 fovereign has not been intrufted by the nation with a power to levy taxes and contributions, or, in short, to raise fupplies 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 contracting national debts, without the concurrence of parliament, because he cannot, without their concurrence, levy any money on his people.

§ 217. The cafe is not the fame with the donations of the fovereign as Donations of the fove- with his debts. When a fovereign has borrowed without neceffireign. ty, or for an unwife purpofe, the creditor has intrufted the state with his property; and it is just that the ftate should restore it to him, if, at the time of the tranfaction, he could entertain a reasonable prefumption that it was to the ftate he was lending it. But when the fovereign gives away any of the property of the ftate,-a part of the national domain,-a confiderable fief,-he has no right to make such grant except with a view to the public welfare, as a reward for fervices rendered to the ftate, or for fome other reasonable cause, in which the nation is concerned: if he has made the donation without reafon and without a lawful caufe, he has made it without authority. His fucceffor, or the ftate, may at any time revoke such a grant: nor would the revo cation be a wrong done to the grantee, fince it does not deprive him of any thing which he could juftly call his own. What we here advance holds true of every fovereign whom the law does not exprefsly invest with the free and abfolute difpofal of the national property: fo dangerous a power is never to be founded on prefumption.

Immunities and privileges conferred by the mere liberality of the fovereign are a kind of donations, and may be revoked in the fame manner, if they prove detrimental to the state. But a fovereign cannot revoke them by his bare authority, unless he be abfolute and even in this cafe, he ought to be cautious and moderate in the exertion of his power, uniting an equal fhare of prudence and equity on the occafion. Immunities granted for particular reafons, or with a view to fome return, partake of the nature of a burthenfome contract, and can only be revoked in cafe of abuse, or when they become incompatible with the fafety of the state. And if they be fuppreffed on this latter account, an indemnification is due to thofe who enjoyed them.

CHAP.