$330.

ces and

thefe points alone that the parties promife to abide by their judgment. If then their fentence be confined within thefe precife bounds, the difputants must acquiefce in it. They cannot say that it is manifeftly unjuft, fince it is pronounced on a question which they have themselves rendered doubtful by the difcordance of their claims, and which has been referred, as fuch, to the decifion of the arbitrators. Before they can pretend to evade fuch a fentence, they fhould prove, by inconteftable facts, that it was the offspring of corruption or flagrant partiality.

Arbitration is a very reafonable mode, and one that is perfectly conformable to the law of nature, for the decifion of every difpute which does not directly intereft the fafety of the nation. Though the claim of justice may be mistaken by the arbitrators, it is ftill more to be feared that it will be overpowered in an appeal to the fword. The Swifs have had the precaution, in all their alliances among themselves, and even in thofe they have con tracted with the neighbouring powers, to agree before-hand on the manner in which their difputes were to be fubmitted to arbitrators, in case they could not adjust them in an amicable manner. This wife precaution has not a little contributed to maintain the Helvetic republic in that flourishing ftate which fecures her liberty, and renders her refpectable throughout Europe.

In order to put in practice any of thefe methods, it is necefConferen- fary to fpeak with each other, and to confer together. Confecongrefles. rences and congreffes are therefore a mode of conciliation, which the law of nature recommends to nations, as well calculated to bring their differences to an amicable termination. Congrefles are affemblies of plenipotentiaries appointed to find out means of conciliation, and to difcufs and adjust the reciprocal pretensions of the contending parties. To afford the profpect of a happy iffue of their deliberations, fuch meetings should be formed and directed by a fincere defire of peace and concord. In the prefent century, Europe has witneffed two general congreffes,-that of Cambray, and that of Soiffons †,-both tedious farces acted on the political theatre, in which the principal performers were lefs defirous of coming to an accommodation than of appearing to defire it.

K ༣༣༥. Distinction to be made between evident

In order at prefent to afcertain in what manner and how far a nation is bound to refort or accede to these various modes of accommodation, and which of them the ought to prefer, it becomes neceflary, in the firft place, to diftinguish between cafes that are an doubt evident, and thofe that are doubtful. Does the question relate to a right that is clear, certain, and inconteftable? A fovereign, if he poflefles fufficient ftrength, may peremptorily profecute and defend that right, without expofing it to the doubtful issue of an arbitration. Shall be fubmit to negotiate and compound for a thing that evidently belongs to him, and which is difputed with

ful cafes.

་

out the least shadow of justice? Much lefs will he fubject it to arbitration. But he ought not to neglect thofe methods of conciliation, which, without endangering his own right, may induce his opponent to liften to reafon,-fuch as mediation and conferences. Nature gives us no right to have recourfe to forcible means, except where gentle and pacific methods prove ineffectual. It is not permitted to be fo inflexible in uncertain and doubtful questions. Who will dare to infift that another shall immediately, and without examination, relinquish to him a difputable right? This would be a means of rendering wars perpetual and inevitable. Both the contending parties may be equally convinced of the justice of their claims: why, therefore, fhould either yield to the other? In fuch a cafe, they can only demand an examination of the question, propofe a conference or an arbitration, or offer to fettle the point by articles of agree

ment.

Of effential

In the difputes that arife between fovereigns, it is moreover $332 neceffary to make a proper diftinction between effential rights rights, and and rights of inferior importance: for, according to the differ- thofe of lefs ence in the two cafes, a different line of conduct is to be purfued. import-. A nation is under many obligations of duty towards herself, to- ance. wards other nations, and towards the great fociety of mankind. We know that the duties we owe to ourfelves are, generally fpeaking, paramount to those we owe to others: but this is to be understood only of fuch duties as bear fome proportion to each other. We cannot refufe, in fome degree, to forget ourselves with refpect to interests that are not effential, and to make fome facrifices, in order to affift other perfons, and especially for the greater benefit of human fociety: and let us even remark, that we are invited by our own advantage, by our own fafety, to make thefe generous facrifices; for the private good of each is intimately connected with the general happinefs. What idea fhould we entertain of a prince or a nation who would refufe to give up the smallest advantage for the fake of procuring to the world the inestimable bleflings of peace? Every power therefore owes this refpect to the happiness of human fociety, to fhew himself open to every mode of conciliation, in queftions relating to interefts which are neither effential nor of great importance. If he expofes himself to the lofs of fomething by an accommodation, by a compromise, or by an arbitration, he ought to be fenfible what are the dangers, the evils, the calamities of war, and to confider that peace is well worth a fmall facrifice.

But if any one would rob a nation of one of her effential rights, or a right without which fhe could not hope to fupport her national existence,-if an ambitious neighbour threatens the liberty of a republic, if he attempts to fubjugate and enflave her,-she will take counsel only from her own courage. She will not even attempt the mode of conferences on fo odious a pretenfion: fhe will, in fuch a quarrel, exert her utmofl efforts, exhauft every refource,

T 4

$ 310. How we ought to

interpret

deeds of

pure liberality.

inhabitants, and not the city: they infifted that Carthage should be demolished, and that the wretched inhabitants fhould fettle in a place at a greater diftance from the fea. One cannot read the account of this perfidious and cruel treatment, without being concerned that the great, the amiable Scipio was obliged to be the inftrument of it. To fay nothing of the chicanery of the Romans refpecting the meaning to be annexed to the word "Carthage,"-certainly, the "liberty" promised to the Carthaginians, though narrowly circumfcribed by the exifting state of affairs, fhould at least have extended to the privilege of remaining in their city. To find themfelves obliged to abandon it and fettle elsewhere, to lose their houses, their port, and the advantages of their fituation,-was a subjection incompatible with the smallest degree of liberty, and involved fuch confiderable loffes as they could not have bound themselves to submit to, unlefs by a pofitive engagement in the most exprefs and formal

terms.

Liberal promifes, benefactions, and rewards, naturally come under the clafs of favourable things, and receive an extenfive interpretation, unless they prove onerous or unreasonably chargeable to the benefactor, or that other circumftances evidently fhew they are to be taken in a limited fenfe. For kindness, benevolence, beneficence, and generofity, are liberal virtues; they do not act in a penurious manner, and know no other bounds than those set by reafon. But if the benefaction falls too heavy upon him who grants it, in this refpect it partakes of the odious; and, in cafe of doubt, equity will not admit the prefumption that it has been granted or promifed in the utmost extent of the terms: we ought therefore, in fuch cafe, to confine ourselves to the moft limited fignification which the words are capable of receiving, and thus reduce the benefaction within the bounds of reafon. The fame mode fhould be adopted when other circumstances evidently point out the more limited fignification as the more equitable.

Upon thefe principles, the bounties of a sovereign are usually taken in the fullest extent of the terms. It is not prefumed that he finds himself over-burthened by them: it is a respect due to majefty, to fuppofe that he had good reasons to induce him to confer them. They are therefore, in their own nature, altogether favourable; and, in order to reftrict them, it must be proved that they are burthenfome to the prince, or prejudicial to the state. On the whole, we ought to apply to deeds of pure liberality the general rule established above (§ 270); if those inftruments are not precife and very determinate, they fhould be interpreted as meaning what the author probably had in his mind.

*Such is the decifion of the Roman law.-Javolenns fays: "Beneficium impe"ratoris quam plenifiime interpretari debemus;" and he gives this reafon for it, quod a divina cjus indulgentia proficifcatur." Digest. lib. i. tit. iv. de Conftit Princ. leg. 3.

Let

$

Collifion of laws or

Let us conclude this fubject of interpretation with what relates 311. to the collision or oppofition of laws or treaties. We do not here fpeak of the collifion of a treaty with the law of nature: the treaties. latter is unquestionably paramount, as we have proved elsewhere (§ § 160, 161, 170, and 293). There is a collifion or oppofition between two laws, two promifes, or two treaties, when a cafe occurs in which it is impoffible to fulfil both at the fame time, though otherwise the laws or treaties in question are not contradictory, and may be both fulfilled under different circumftances. They are confidered as contrary in this particular cafe; and it is required to fhew which deferves the preference, or to which an exception ought to be made on the occafion. In order to guard against all mistake in the bufinefs, and to make the exception conformably to reafon and juftice, we should obferve the following rules.

Firit rule

1. In all cafes where what is barely permitted is found incompati-§ 312. ble with what is pofitively preferibed, the latter claims a preference: in cafes of for the mere permiffion impofes no obligation to do or not to do: collifion. what is permitted is left to our own option: we are at liberty either to do it or forbear to do it. But we have not the fame liberty with respect to what is prescribed: we are obliged to do that: nor can the bare permiflion in the former cafe interfere with the discharge of our obligation in the latter; but, on the contrary, that which was before permitted in general, ceases to be fo in this particular inftance, where we cannot take advantage of the permiflion without violating a positive duty.

2. In the fame manner, the law or treaty which permits, ought $313. to give way to the law or treaty which forbids: for the prohibi- 2d Rule. tion must be obeyed; and what was, in its own nature, or in general, permitted, muft not be attempted when it cannot be done without contravening a prohibition: the permillion, in that cafe, ceafes to be available.

3. All circumstances being otherwife equal, the law or the treaty $314. which ordains, gives way to the law or the treaty which forbids. 3d Rule. I fay, "all circumftances bieng otherwife equal;" for many other reafons may occur, which will authorife the exception being made to the prohibitory law or treaty. The rules are general; each relates to an abstract idea, and fhews 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 abftain from fulfilling the former: for the prohibition is abfolute in itself, whereas every precept, every injunction, is in its own nature conditional, and fuppofes the power, or a favourable opportunity, of doing what is preferibed. Now when that cannot be accomplished without contravening a prohibition, the opportunity is wanting, and this collifion of laws produces a moral impoffibility of acting; for what is prefcribed in general, is no longer fo in the cafe where it cannot be done without committing an action

§ 315. 4th Rule.

that is forbidden. Upon this ground refts the generally received maxim that we are not juftifiable in employing unlawful means to accomplish a laudable end,-as, for instance, in ftealing with a view to give alms. But it is evident that the question here regards an abfolute prohibition, or those cafes 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 exprefsly forbidden, for reasons to me unknown, to pafs through a certain place under any pretence whatsoever. I am ordered to carry a meffage; I find every other avenue fhut; I therefore turn back rather than take my paffage over that ground which is fo ftrictly forbidden. But if the prohibition to pafs be only a general one with a view to prevent any injury being done to the productions of the foil, 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 prefcribes, any farther than we have the power. Now we have not a power to do what another treaty forbids: wherefore, in cafe of collifion, an exception is made to the injunctive treaty, and the prohibitory treaty has a fuperior claim to our obfervance,-provided, however, that all circumstances be in other refpects equal; for it will prefently appear, for instance, that a fubfequent treaty cannot derogate from a prior one concluded with another ftate, nor hinder its effect directly or indirectly.

4. The dates of laws or treaties furnish new reafons for eftablifhing the exception in cafes of collifion. If the collifion happen between two affirmative laws, or two affirmative treaties concluded between the fame perfons or the fame ftates, that which is of more recent date claims a preference over the older one: for it is evident, that, fince both laws or both treaties have emanated from the fame power, the fubfequent act was capable of derogating from the former. But ftill this is on the fuppofition of circumftances being in other refpects equal.-If there be a collifion 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 fubfequent treaty; and if this latter be found, in any cafe, incompatible with that of more ancient date, its execution is confidered as impoffible, because the perfon promifing had not the power of acting contrary to his antecedent engagements.

$ 316. 5. Of two laws or two conventions, we ought (all other circum5th Kule. ftances being equal) to prefer the one which is lefs general, and which approaches nearer to the point in quefiion: becaufe fpecial matter

*The prohibitory law creates, in that particular inftance, an exception to the injunctive law. "Deinde utra lex jubeat, utra vetet. Nam fæpe ea quæ vetat, quafi exceptione quadam corrigere videtur illam quæ jubet." Cicero, de inventione, lib. ii. 145.