XVIII. The acceptance of a promise for a third person is a matter subject to discussion, in which there is a distinction to be observed between a promise made to a person of a thing, which is to be given to another, and a promise made directly to the person himself, on whom the former is to be conferred. If a promise is made to any one, where his own personal interest is not concerned, a consideration introduced by the Roman law, by acceptance he seems naturally to acquire a right which may be transferred to another for HIS acceptance, and this right will pass so fully, that in the mean time the promise cannot be revoked by the person who gave, though it may be released by him who received it. For that is a meaning by no means repugnant to the law of nature, and it is entirely conformable to the words of such a promise; nor can it be a matter of indifference to the person, through whom another is to receive a benefit.
But if a promise is made directly to one, on whom a thing is to be conferred, a distinction must be made, whether the person receiving such a promise has SPECIAL commission for acceptance, or one so GENERAL as to include acceptance, or has it not. When a commission has been previously given, no farther distinction is necessary, whether the person be free or not, a condition which the Roman laws require. But it is plain that from such an acceptance, let the condition of the person be what it will, the promise is complete: because consent may be given and signified through the medium of another. For a person is supposed to have fully intended, what he has put into the power of another to accept or refuse.
Where there is no such commission, if another, to whom the promise was not directly made, accepts it with the consent of the promiser, the promise will be so far binding, that the promiser will not be at liberty to revoke it, before the person, in whose favour it was made has ratified, and afterwards chosen to release the engagement. Yet, in the mean time, the accepter cannot release it, as having derived no peculiar right from it himself, but only been used as an instrument in promoting the kind intentions and good faith of the promiser. The promiser therefore himself, by revoking it, is not doing violence to the perfect right of another, but only acting in contradiction his own good faith.
XIX. From what has been said before, it is easy to conceive what opinion ought to be entertained of a burdensome condition annexed to a promise. For it may be annexed at any time, till a promise has been completed by acceptance, or an irrevocable pledge to fulfil it has been given. But the condition of a burden annexed to a favour intended to be conferred upon a third person, through the medium of any one, may be revoked before the person has confirmed it by his acceptance. On this point there is great difference of opinion. But upon impartial consideration the natural equity of any case may be easily seen without any great length of arguments.
XX. XXI. XXII. Another point of discussion relates to the validity of an erroneous promise, when the person, who made it, upon being apprised of his error is willing to adhere to his engagement. And the same inquiry applies to promises, which, arising out of fear or any other such motive, are prohibited by the civil law. What, it may be asked, will become of these promises, if that fear, or that motive has been removed?
To confirm such obligations, some think an internal consent of the mind alone in conjunction with some previous external act is sufficient. Others disapprove of this opinion, because they do not admit that an external act is a real sign of a subsequent intention. Therefore they require an express repetition of the promise and acceptance. Between these two opinions, the truth is most likely to be found. There may be an external act expressive of a promise, though unaccompanied with words; where one party's accepting and retaining a gift, and the other's relinquishing his right in it are sufficient to constitute a full consent.
To prevent civil laws from being confounded with natural justice, we must not omit noticing, in this place, that promises though founded in no EXPRESS motive, are not, any more than gifts, void by the law of nature.
Nor is a person who has engaged for another's performing any thing, bound to pay damages and interest for neglect, provided he has done every thing that was necessary on his part towards obtaining its accomplishment. Unless the express terms of the agreement, or the nature of the business require a stricter obligation, positively declaring that, under all circumstances whatever, the thing shall be performed.
Human actions divided into simple or mixed—Gratuitous, or accompanied with mutual obligation—Acts by way of exchange, adjustment of what is to be given or done—Partnership—Contracts—Previous equality—As to knowledge of all circumstances—As to freedom of consent, requisite in contracts of exchange, of sale, of commission and loan—Price of things in what manner to be rated—Transfer of property by sale—What kind contrary to the law of nature—Money—Its use as the standard value of all things—No abatement in the rent or hire of a thing on account of ordinary accidents—Increase or diminution of just salaries—Usury, by what law forbidden—Interest not coming under the name of usury—Insurance—Partnerships of Trade, Naval Associations—Inequality in the terms of a contract no way repugnant to the law of nations.
I. and II. Of all human actions, wherein the interest of others is concerned, some are simple, and some are mixed. In those of the former description all service is purely gratuitous, but in the latter it is a traffic of exchange. In the one case the service is granted without a requital, but in the other it is accompanied with an obligation on both sides. Gratuitous services are either immediate in their effect, or to take place at some future time. A beneficial service may be said to be immediately performed, when it confers an advantage, to which the person so benefitted has no direct or absolute right. As a gift transfers property, where there is no previous right. A subject, which has been already discussed. And promises may be said to relate to some future gift, or action, of which a full and sufficient explanation has before been given.
Services accompanied with mutual obligation are those where the use of a thing is allowed to any one without a complete alienation, or where labour is given in expectation of some valuable consideration. Under the first of these heads we may reckon the loan and use of all consumable or inconsumable property: and under the latter we may place all commissions to transact business, or all trusts to preserve the property of another. Similar to which are all promises of something to be done, except that they regard a future time. And in this view we may consider all the actions, which are now to be explained.
III. In all acts of exchange, there is either an adjustment of shares, or the profits are regarded as a common stock. And such adjustments are made by the Roman Lawyers in the following terms, "I give this to receive that in return, I do this in order for you to do that, or I do this for you to give me that."29 But the Romans exclude from that adjustment certain kinds of contracts, which they call EXPRESS ENGAGEMENTS. Not because they are entitled to any such peculiar name more than the simple acts of exchange already mentioned: but because from frequent use they have naturally derived a character similar to that of the original contract, from which they are named, though they are not attended exactly with the same circumstances, nor expressed directly in the same terms. Whereas in other contracts less frequently in use, the form was confined to an exact statement of all the circumstances of the case. An action upon which was therefore called by the Roman law an ACTION IN PRESCRIBED WORDS.
For the same reason, if those contracts, which are in general use, be accompanied with any of the requisite formalities, as in a bargain or sale, if the price had been agreed upon, though no part of the agreement had been performed by either of the parties, the civil law enforced an obligation to fulfil them. But as it considers those contracts which are seldom used, more in the light of voluntary engagements, depending upon the good faith of the respective parties, than upon legal obligation, it leaves both sides at liberty to relinquish them at any time prior to their being naturally performed.
Distinctions of this kind are unknown to the law of nature, which gives SIMPLE AGREEMENTS equal authority with those, that are included by civilians in the class of EXPRESS CONTRACTS. And on the score of antiquity their pretensions are far superior. It is therefore perfectly conformable to the principles of nature to reduce the adjustment of all agreements, without any regard to the distinction between SIMPLE and EXPRESS CONTRACTS, to the three species already named. Thus, for instance, one thing is given for another, which constitutes barter, the most ancient kind of traffic; the next step in the progress of commercial intercourse is where one kind of money is given for another, a transaction which by merchants is called exchange; and a third species of contract is where money is given for any thing, as in the acts of selling and buying. Or the USE of one thing may be given for that of another; money also may be given for the USE of a thing, which last method constitutes the acts of letting and hiring.
The term use is to be understood here as applied not only to the bare unproductive use of a thing, but to that which is attended with profit, whether it be temporary, personal, hereditary or circumscribed, as was the case among the Hebrews with regard to transfers, which could be made for no longer a time than till the year of Jubilee. The very essence of a loan consists in a return of the same kind of thing after a stated period. A return which can take place only in things regulated by weight, number, or measure, whether it be in commodities or money. But the exchange of labour branches out into various kinds of recompence or return. As, for instance, a person gives his labour for money, which in the daily transactions of life is called hire or wages: where one undertakes to indemnify another for accidental losses or damages, it is called insurance: a species of contract scarce known to the ancients, but now forming a very important branch in all mercantile and maritime concerns.
IV. Acts of communication are those, where each contributes a share to the joint stock. Perhaps on one side, money, and on the other, skill and labour may be given. But in whatever way these concerns are regulated, they come under the denomination of partnerships. With this class we may rank the alliances of different states in war. And of the same description are those naval associations of individuals, so frequently formed in Holland for protection against pirates or other invaders, which is generally called an Admiralty, and to which the Greeks gave the name of a joint fleet.
V. and VI. Now mixed actions are either such in themselves, or made so by some adventitious circumstance. Thus if I knowingly give one person a greater price for a thing than I can purchase it for of another, the excess of price may be considered partly as a gift, and partly as a purchase. Or if I engage a goldsmith to make me any article with his own materials, the price which I give will be partly a purchase, and partly wages. The feudal system too might be considered as a train of mixed contracts. Where the grant of the fee might be considered as a beneficial act; but the military service required by the Lord, in return for his protection, gave the fee the nature of a contract, where a person did one thing expecting for it the performance of another. But if any payment is attached to it by way of acknowledgement, it partakes of the nature of a quit rent. So money sent to sea by way of venture is something compounded of a contract, of a loan, and of an insurance.
VII. All acts beneficial to others, except those that are purely gratuitous, come under the denomination of contracts.
VIII. In all contracts, natural justice requires that there should be an equality of terms: insomuch that the aggrieved party has an action against the other for overreaching him. This equality consists partly in the performance, and partly in the profits of the contract, applying to all the previous arrangements, and to the essential consequences of the agreement.
IX. As to an equality of terms previous to the contract, it is evident that a seller is bound to discover to a purchaser any defects, which are known to him, in a thing offered for sale; a rule not only established by civil laws, but strictly conformable to natural justice. For the words of agreement between contracting parties are even stronger than those, on which society is founded. And in this manner may be explained the observation of Diogenes the Babylonian, who in discussing this topic said, it is not every degree of silence, which amounts to concealment; nor is one person bound to disclose every thing, which may be of service to another. Thus for instance, a man of science is not strictly bound to communicate to another that knowledge, which might redound to his advantage. For contracts, which were invented to promote a beneficial intercourse among mankind, require some closer and more intimate connection than bare good-will to enforce their obligation. Upon which Ambrose has justly remarked, "that, in contracts, the faults of things exposed to sale ought to be made known, of which unless the seller has given intimation, though he may have transferred the right of property by sale, yet he is liable to an action of fraud."
But the same cannot be said of things not coming under the nature of contracts. Thus if any one should sell his corn at a high price, when he knows that many ships laden with grain are bound for that place, though it would be an act of kindness in him to communicate such intelligence to the purchasers, and though no advantage could be derived to him, from withholding the communication, but at the expence of charity, yet there is nothing unjust in it, or contrary to the general rules of dealing. The practice is vindicated by Diogenes in the passage of Cicero alluded to, he says, "I carried my commodities and offered them to sale, in selling them I demanded no greater price than others did; if the supply had been greater I would have sold them for less, and where is the wrong done to any one?" The maxim of Cicero therefore cannot generally be admitted, that, knowing a thing yourself, to wish another, whose interest it is to know it also, to remain ignorant of it, merely for the sake of your own advantage, amounts to a fraudulent concealment. By no means; for that only is a fraudulent concealment which immediately affects the nature of the contract: as for instance, in selling a house, to conceal the circumstance of its being infected with the plague, or having been ordered by public authority to be pulled down. But it is unnecessary to mention, that the person, with whom a seller treats, ought to be apprised of every circumstance attending the thing offered for sale; if it be lands, whether the tenure be subject to a rent-charge, or service of any kind, or be entirely free.
X. and XI. Nor is the equality that has been explained confined solely to the communication of all the circumstances of the case to the contracting parties, but it includes also an entire freedom of consent in both.
In the principal act itself, the proper equality requires that no more should be demanded either party than what is just. Which can scarce have a place in gratuitous acts. To stipulate for a recompence in return for a loan, or for the service of labour or commission is doing no wrong, but constitutes a kind of mixed contract, partaking of the nature of a gratuitous act, and an act of exchange. And in all acts of exchange, this equality is to be punctually observed. Nor can it be said that if one party promises more, it is to be looked upon as a gift. For men never enter into contracts with such intentions, nor ought the existence of such intentions ever be presumed, unless they evidently appear. For all promises or gifts, in these cases, are made with an expectation of receiving an equivalent in return. "When, in the words of Chrysostom, in all bargains and contracts, we are anxious to receive MORE and give LESS than is due, what is this but a species of fraud or robbery?" The writer of the life of Isidorus in Photius, relates of Hermias, that when any thing, which he wished to purchase was valued at too low a rate, he made up the deficiency of the price, thinking that to act otherwise was a species of injustice, though it might escape the observation of others. And in this sense, may be interpreted the law of the Hebrews.
XII. There remains another degree of equality to be considered, arising out of the following case. It may happen in contracts that although nothing is concealed, which ought to be made known, nor more exacted or taken by one party than is due, yet there may be some inequality without any fault in either of the parties. Perhaps, for instance there might be some unknown defect in the thing, or there might be some mistake in the price. Yet, in such cases, to preserve that equality, which is an essential requisite in all contracts, the party suffering by such defect or mistake, ought to be indemnified by the other. For in all engagements it either is, or ought to be a standing rule, that both parties should have equal and just advantages.
It was not in every kind of equality that the Roman law established this rule, passing over slight occasions, in order to discourage frequent and frivolous litigation. It only interposed its judicial authority in weighty matters, where the price exceeded the just value by one half. Laws indeed, as Cicero has said, have power to compel, or restrain men, whereas philosophers can only appeal to their reason or understanding. Yet those, who are not subject to the power of civil laws ought to comply with whatever reason points out to them to be just: So too ought they, who are subject to the power of human laws, to perform whatever natural and divine justice requires, even in cases, where the laws neither give nor take away the right, but only forbear to enforce it for particular reasons.
XIII. There is a certain degree of equality, too, in beneficial or gratuitous acts, not indeed like that prevailing in contracts of exchange, but proceeding upon a supposition of the hardship, that any one should receive detriment from voluntary services, which he bestows. For which reason a voluntary agent ought to be indemnified for the expence or inconvenience, which he incurs, by undertaking the business of another. A borrower too is bound to repair a thing that has been damaged or destroyed. Because he is bound to the owner not only for the thing itself, by virtue of the property which he retains in it, but he owes a debt of gratitude also for the favour of the loan; unless it appears that the thing so lent would have perished, had it even remained in possession of the owner himself. In this case, the owner loses nothing by the loan. On the other hand, the depositary has received nothing but a trust. If the thing therefore is destroyed, he cannot be bound to restore what is no longer in existence, nor can he be required to make a recompence, where he has derived no advantage; for in taking the trust he did not receive a favour, but conferred one. In a pawn, the same as in a thing let out for hire, a middle way of deciding the obligation may be pursued, so that the person taking it is not answerable, like a borrower, for every accident, and yet he is obliged to use greater care, than a bare depositary, in keeping it safe. For though taking a pledge is a gratuitous acceptance, it is followed by some of the conditions of a contract. All these cases are conformable to the Roman law, though not originally derived from thence, but from natural equity. Rules, all of which may be found among other nations. And, among other works, we may refer to the third book and forty-second chapter of the Guide for doubtful cases, written by Moses Maimonides, a Jewish writer.
Upon the same principles the nature of all other contracts may be explained; but the leading features in those of certain descriptions seemed sufficient for a treatise like the present.
XIV. The general demand for any thing, as Aristotle has clearly proved, constitutes the true measure of its value, which may be seen particularly from the practice prevailing among barbarous nations of exchanging one thing for another. But this is not the only standard: for the humours and caprice of mankind, which dictate and controul all regulations, give a nominal value to many superfluities. It was luxury, says Pliny, that first discovered the value of pearls, and Cicero has somewhere observed, that the worth of such things can only be estimated by the desires of men.
But on the other hand, it happens that the plentiful supply of necessaries lowers their price. This Seneca, in the 15th chapter of his sixth book on benefits, proves by many instances, which he concludes with the following observation, "the price of every thing must be regulated by the market, and notwithstanding all your praises, it is worth nothing more than it can be sold for." To which we may add the authority of Paulus the Lawyer, who says, the prices of things do not depend upon the humours and interest of individuals, but upon common estimation, that is, as he explains himself elsewhere, according to the worth which they are of to all.
Hence it is that things are valued in proportion to what is usually offered or given for them, a rule admitting of great variation and latitude, except in certain cases, where the law has fixed a standard price. In the common price of articles, the labour and expence of the merchant in procuring them is taken into the account, and the sudden changes so frequent in all markets depend upon the number of buyers, whether it be great or small, and upon the money and marketable commodities, whether they be plentiful or scarce.
There may indeed be casualties, owing to which a thing may be lawfully bought or sold above or below the market price. Thus for instance, a thing by being damaged may have lost its original or common value, or that, which otherwise would not have been disposed of, may be bought or sold from some particular liking or aversion. All these circumstances ought to be made known to the contracting parties. Regard too should be had to the loss or gain arising from delay or promptness of payment.
XV. In buying and selling we must observe, that the bargain is completed from the very moment of the contract, even without delivery, and that is the most simple way of dealing. Thus Seneca says, that a sale is a transfer of one's right and property in a thing to another, which is done in all exchanges. But if it be settled that the property shall not be transferred immediately, still the seller will be bound to convey it at the stated period, taking in the mean time all the profits and losses.
Whereas the completion of bargain and sale, by giving the purchaser a right of possession and ejectment, and conveying to him the hazard with all the profits of the property, even before it is transferred, are regulations of the civil law not universally observed. Indeed some legislators have made the seller answerable for all accidents and damages, till the actual delivery of possession is made, as Theophrastus has observed in a passage in Stobaeus, under the title of laws, where the reader will find many customs, relating to the formalities of sale, to earnest, to repentance of a bargain, very different from the rules of the Roman law. And among the Rhodians, Dion Prusaeensis informs us that all sales and contracts were confirmed by being entered in a public register.
We must observe too that, if a thing has been twice sold, of the two sales the one is valid, where an immediate transfer of the property has been made, either by delivery of possession, or in any other mode. For by this means the seller gives up an absolute right, which could not pass by a promise alone.
XVI. It is not every kind of monopoly that amounts to a direct violation of the laws of nature. The Sovereign power may have very just reasons for granting monopolies, and that too at a settled price: a noble instance of which we find in the history of Joseph, who governed Egypt under the auspices of Pharaoh.30 So also under the Roman government the people of Alexandria, as we are informed by Strabo, enjoyed the monopoly of all Indian and Ethiopian goods.
A monopoly also may, in some cases, be established by individuals, provided they sell at a reasonable rate. But all combinations to raise the necessary articles of life to an exorbitant rate, or all violent and fraudulent attempts to prevent the market from being supplied, or to buy up certain commodities, in order to enhance the price, are public injuries and punishable as such.31 Or indeed ANY WAY of preventing the importation of goods, or buying them up in order to sell them at a greater rate than usual, though the price, UNDER SOME PARTICULAR CIRCUMSTANCES, may not seem unreasonable, is fully shewn by Ambrose in his third book of Offices to be a breach of charity; though it come not directly under the prohibition of laws.
XVII. As to money, it may be observed that its uses do not result from any value intrinsically belonging to the precious metals, or to the specific denomination and shape of coin, but from the general application which can be made of it, as a standard of payment for all commodities. For whatever is taken as a common measure of all other things, ought to be liable, in itself, to but little variation. Now the precious metals are of this description, possessing nearly the same intrinsic value at all times and in all places. Though the nominal value of the same quantity of gold and silver, whether paid by weight or coin will be greater or less, in proportion to the abundance or scarcity of the things for which there is a general demand.
XVIII. Letting and hiring, as Caius has justly said, come nearest to selling and buying, and are regulated by the same principles. For the price corresponds to the rent or hire, and the property of a thing to the liberty of using it. Wherefore as an owner must bear the loss of a thing that perishes, so a person hiring a thing or renting a farm must bear the loss of all ordinary accidents, as for instance, those of barrenness or any other cause, which may diminish his profits.32 Nor will the owner, on that account, be the less entitled to the stipulated price or rent, because he gave the other the right of enjoyment, which at that time was worth so much, unless it was then agreed that the value should depend upon such contingencies.
If an owner, when the first tenant has been prevented from using a thing, shall have let it to another, all the profits accruing from it are due to the first tenant, for it would not be equitable that the owner should be made richer by what belonged to another.
XIX. The next topic, that comes under consideration, is the lawfulness of taking interest for the use of a consumable thing; the arguments brought against which appear by no means such as to command our assent. For as to what is said of the loan of consumable property being a gratuitous act, and entitled to no return, the same reasoning may apply to the letting of inconsumable property for hire, requiring a recompence for the use of which is never deemed unlawful, though it gives the contract itself a different denomination.
Nor is there any more weight in the objection to taking interest for the use of money, which in its own nature is barren and unproductive. For the same may be said of houses and other things, which are unproductive and unprofitable without the industry of man.33
There is something more specious in the argument, which maintains, that, as one thing is here given in return for another, and the use and profits of a thing cannot be distinguished from the thing itself, when the very use of it depends upon its consumption, nothing more ought to be required in return for the use, than what is barely equivalent to the thing itself.
But it is necessary to remark, that when it is said the enjoyment of the profits of consumable things, whose property is transferred, in the use, to the borrower or trustee, was introduced by an act of the senate, this does not properly come under the notion of Usufruct, which certainly in its original signification answers to no such right. Yet it does not follow that such a right is of no value, but on the contrary money may be required for surrendering it to the proprietor. Thus also the right of not paying money or wine borrowed till after a certain time is a thing whose value may be ascertained, the delay being considered as some advantage. Therefore in a mortgage the profits of the land answer the use of money. But what Cato, Cicero, Plutarch and others allege against usury, applies not so much to the nature of the thing, as to the accidental circumstances and consequences with which it is commonly attended.34
XX. There are some kinds of interest, which are thought to wear the appearance of usury, and generally come under that denomination, but which in reality are contracts of a different nature. The five shillings commission which a banker, for instance, charges upon every hundred pounds, is not so much an interest in addition to five per cent, as a compensation for his trouble, and for the risk and inconvenience he incurs, by the loan of his money, which he might have employed in some other lucrative way. In the same manner a person who lends money to many individuals, and, for that purpose, keeps certain sums of cash in his hands, ought to have some indemnity for the continual loss of interest upon those sums, which may be considered as so much dead stock. Nor can any recompence of this kind be branded with the name of usury. Demosthenes, in his speech against Pantaenetus, condemns it as an odious act of injustice, to charge with usury a man, who in order to keep his principal undiminished, or to assist another with money, lends out the savings of his industry and frugal habits, upon a moderate interest.
XXI. Those human laws, which allow a compensation to be made for the use of money or any other thing, are neither repugnant to natural nor revealed law. Thus in Holland, where the rate of interest upon common loans was eight per cent, there was no injustice in requiring twelve per cent of merchants; because the hazard was greater. The justice and reasonableness indeed of all these regulations must be measured by the hazard or inconvenience of lending. For where the recompence exceeds this, it becomes an act of extortion or oppression.
XXII. Contracts for guarding against danger, which are called insurances, will be deemed fraudulent and void, if the insurer knows beforehand that the thing insured is already safe, or has reached its place of destination, and the other party that it is already destroyed or lost. And that not so much on account of the equality naturally requisite in all contracts of exchange, as because the danger and uncertainty is the very essence of such contract. Now the premium upon all insurances must be regulated by common estimation.35
XXIII. In trading partnerships, where money is contributed by both parties; if the proportions be equal, the profits and the losses ought to be equal also. But if they be unequal, the profits and the losses must bear the same proportion, as Aristotle has shewn at the conclusion of the eighth book of his Ethics. And the same rule will hold good where equal or unequal proportions of labor are contributed. Labor may be given as a balance against money, or both labor and money may be given, according to the general maxim that one man's labour is an equivalent for another man's money.
But there are various ways of forming these agreements. If a man borrows money to employ his skill upon in trading for himself, whether he gains or loses the whole, he is answerable to the owner for the principal. But where a man unites his labor to the capital of another in partnership, there he becomes a partner in the principal, to a share of which he is entitled. In the first of these cases the principal is not compared as a balance against the labor, but it is lent upon terms proportioned to the risk of losing it, or the probable gains to be derived from it. In the other case, the price of labour is weighed, as it were, against the money, and the party who bestows it, is entitled to an equivalent share in the capital.
What has been said of labour may be applied to voyages, and all other hazardous undertakings. For it is contrary to the very nature of partnerships for any one to share in the gain, and to be exempt from the losses. Yet it may be so settled without any degree of injustice. For there may be a mixed contract arising out of a contract of insurance in which due equality may be preserved, by allowing the person, who has taken upon himself the losses, to receive a greater share of the gain than he would otherwise have done. But it is a thing quite inadmissible that any one should be responsible for the losses without partaking of the gains; for a communion of interests is so natural to society that it cannot subsist without it.
What has been said by writers on the civil law, that the shares are understood to be equal where they are not expressly named, is true where equal quotas have been contributed. But in a GENERAL partnership the shares are not to be measured by what may arise from this or that article, but from the probable profits of the whole.
XXIV. In naval associations the common motive of utility is self-defence against pirates: though they may sometimes be formed from less worthy motives. In computing the losses to be sustained by each, it is usual to estimate the number of men, the number of ships, and the quantity of merchandise protected. And what has hitherto been said will be found conformable to natural justice.
XXV. Nor does the voluntary36 law of nations appear to make any alteration here. However, there is one exception, which is, that where equal terms have been agreed upon, if no fraud has been used, nor any necessary information withheld, they shall be considered as equal in an external37 point of view. So that no action can be maintained in a court for such inequality. Which was the case in the civil law before Dioclesian's constitution. So among those, who are bound by the law of nations alone, there can be no redress or constraint on such account.38
And this is the meaning of what Pomponius says, that in a bargain and sale, one man may NATURALLY overreach another: an allowance which is not to be construed, as a right, but is only so far a permission, that no legal remedy can be used against the person, who is determined to insist upon the agreement.
In this place, as in many others, the word natural signifies nothing more than what is received by general custom. In this sense the Apostle Paul has said, that it is naturally disgraceful for a man to wear long hair; a thing, in which there is nothing repugnant to nature, but which is the general practice among some nations. Indeed many writers, both sacred and profane, give the name of NATURAL to what is only CUSTOMARY and HABITUAL.
Efficacy of oaths among Pagans—Deliberation requisite in oaths—The sense, in which oaths are understood to be taken, to be adhered to—To be taken according to the usual meaning of the words—The subject of them to be lawful—Not to counteract moral obligations—In what sense oaths are an appeal to God—The purport of oaths—To be faithfully observed in all cases—The controul of sovereigns over the oaths of subjects—Observations on our Saviour's prohibition of oaths—Forms substituted for oaths.
I. The sanctity of an oath with regard to promises, agreements, and contracts, has always been held in the greatest esteem, in every age and among every people. For as Sophocles has said in his Hippodamia, "The soul is bound to greater caution by the addition of an oath. For it guards us against two things, most to be avoided, the reproach of friends, and the wrath of heaven." In addition to which the authority of Cicero may be quoted, who says, our forefathers intended that an oath should be the best security for sincerity of affirmation, and the observance of good faith. "For, as he observes in another place, there can be no stronger tie, to the fulfilment of our word and promise, than an oath, which is a solemn appeal to the testimony of God."
II. The next point, to be considered, is the original force and extent of oaths.
And in the first place the arguments, that have been used respecting promises and contracts, apply to oaths also, which ought never to be taken but with the most deliberate reflection and judgment. Nor can any one lawfully take an oath, with a secret intention of not being bound by it. For the obligation is an inseparable and necessary consequence of an oath, and every act accompanied with an obligation is supposed to proceed from a deliberate purpose of mind. Every one is bound likewise to adhere to an oath in that sense, in which it is usually understood to be taken. For an oath being an appeal to God, should declare the full truth in the sense in which it is understood. And this is the sense upon which Cicero insists that all oaths should be performed and adhered to in that sense, in which the party imposing them intended they should be taken. For although in other kinds of promises a condition may easily be implied, to release the promiser; yet that is a latitude by no means admissible in an oath. And on this point an appeal may be made to that passage, where the admirable writer of the Epistle to the Hebrews has said, God willing more abundantly to shew unto the heirs of the promise the immutability of his counsel confirmed it by an oath: that by two immutable things, in which it was impossible for God to deceive, we might have a strong consolation. In order to understand these words, we must observe that the sacred writers, in speaking of God, often attribute to him human passions, rather in conformity to our finite capacities, than to his infinite nature. For God does not actually change his decrees, though he may be said to do so, and to repent, whenever he acts otherwise than the words seemed to indicate, the occasion, on which they were delivered, having ceased. Now this may easily be applied in the case of threats, as conferring no right; sometimes too in promises, where a condition is implied. The Apostle therefore names two things denoting immutability, a promise which confers a right, and an oath, which admits of no mental reservations.
From the above arguments it is easy to comprehend what is to be thought of an oath fraudulently obtained. For if it is certain that a person took the oath upon a supposition, which afterwards was proved to have no foundation, and but for the belief of which he would never have taken it, he will not be bound by it. But if it appears that he would have taken it without that supposition; he must abide by his oath, because oaths allow of no evasion.
III. The meaning of an oath should not be stretched beyond the usual acceptation of words. Therefore there was no breach of their oath in those, who, having sworn that they would not give their daughters in marriage to the Benjamites, permitted those that had been carried off to live with them. For there is a difference between giving a thing, and not recovering that which is lost.
IV. To give validity to an oath, the obligation, which it imposes ought to be lawful. Therefore a sworn promise, to commit an illegal act, to do any thing in violation of natural or revealed law, will be of no effect.
V. Indeed if a thing promised upon oath be not actually illegal, but only an obstruction to some greater moral duty, in that case also the oath will not be valid. Because it is a duty which we owe to God not to deprive ourselves of the freedom of doing all the good in our power.
VI. Oaths may differ in form, and yet agree in substance. For they all ought to include an appeal to God, calling upon him to witness the truth, or to punish the falsehood of their assertions, both of which amount to the same thing. For an appeal to the testimony of a superior, who has a right to punish, is the same as requiring him to avenge an act of perfidy. Now the omniscience of God gives him power to punish, as well as to witness every degree of falsehood.
VII. It was a custom with the ancients to swear by persons or beings expressly distinct from the supreme creator, either imprecating the wrath of those by whom they swore, whether it were the sun, the heavens, or the earth; or swearing by their own heads, by their children, their country or their prince, and calling for destruction upon THEM, if there were any falsehood in their oaths.
Nor was this practice confined to Heathen nations only, but, as we are informed by Philo, it prevailed among the Jews. For he says that we ought not, in taking an oath upon every occasion, to have recourse to the maker and father of the universe, but to swear by our parents, by the heavens, the earth, the universe. Thus Joseph is said to have sworn by the life of Pharaoh, according to the received custom of the Egyptians. Nor does our Saviour, in the fifth chapter of St. Matthew's Gospel, intend, as it is supposed by some, to consider these oaths to be less binding than those taken expressly by the name of God. But as the Jews were too much inclined to make use of, and yet disregard them, he shews them that they are real oaths. For, as Ulpian has well observed, he who swears by his own life, seems to swear by God, bearing a respect and reference to his divine power. In the same manner Christ shews that he, who swears by the temple, swears by God who presides in the temple, and that he who swears by Heaven, swears by God, who sits upon the Heavens. But the Jewish teachers of that day thought that men were not bound by oaths made in the name of created beings, unless some penalty were annexed, as if the thing, by which they swore, were consecrated to God. For this is the kind of oath implied in the word κορβᾶν {korban} as BY A GIFT. And it is this error of theirs, which Christ refutes.
VIII. The principal effect of oaths is to cut short disputes. "An oath for confirmation, as the inspired writer of the Epistle to the Hebrews has said, is the end of all strife." So too we find in Diodorus Siculus, that an oath was regarded among the Egyptians as the surest pledge of sincerity that men could give. So that every one, in taking an oath, should express the real purpose of his mind, and render his actions conformable to those expressions. There is a beautiful passage on this subject, in Dionysius of Halicarnassus, who says, "the last pledge among men, whether Greeks or Barbarians, and it is a pledge, which no time can blot out, is that which takes the Gods, as witnesses to oaths and covenants."
IX. The substance of an oath too should be such, and conceived in such words, as to include not only the divine, but the human obligations, which it implies. For it should convey to the person, who receives it, the same security for his right, as he would derive from an express promise or a contract. But if either the words bear no reference to a person so as to confer upon him a right, or if they do refer to him but in such a manner that some opposition may be made to his claim, the force of the oath will, in that case, be such as to give that person no right from it; yet he who has taken it must still submit to the divine obligation, which the oath imposes. An example of which we have in a person, from whom a sworn promise has been extorted by fear. For here the oath conveys no right, but what the receiver ought to relinquish, for it has been obtained to the prejudice of the giver. Thus we find the Hebrew Kings were reproved by the prophets, and punished by God for not observing the oaths, which they had taken to the kings of Babylon.
X. The same rule applies not only to transactions between public enemies, but to those between any individuals whatsoever. For he, to whom the oath is taken, is not the only person to be considered; but a solemn regard must be paid to God, in whose name the oath is taken, and who possesses authority to enforce the obligation. For which reason it is impossible to admit the position of Cicero, that it is no breach of an oath to refuse paying to robbers the sum stipulated for having spared one's life; because such men are not to be ranked in the number of lawful enemies, but treated as the common enemies of all mankind, so that towards them no faith ought to be kept, nor even the sanctity of an oath observed.
XI. The power of superiors over inferiors, that is of sovereigns over subjects, with respect to oaths, is the next topic that comes under consideration. Now the act of a superior cannot annul the perfect obligation of an oath, which rests upon natural and revealed law. But as we are not, in a state of civil society, entirely masters of our own actions, which in some measure depend upon the direction of the sovereign power, which has a twofold influence with respect to oaths, in the one case applying to the person who takes, and in the other, to the person who receives them. This authority may be exercised over the person taking the oath, either by declaring, before it is taken, that it shall be made void, or by prohibiting its fulfilment, when taken. For the inferior or subject, considered as such, could not bind himself to engagements, beyond those allowed by the sovereign legislature. In the same manner, by the Hebrew Law, husbands might annul the oaths of wives, and fathers those of children, who were still dependent.
XII. In this place we may cursorily observe, that what is said in the precepts of Christ, and by St. James, against swearing at all, applies not to an oath of affirmation, many instances of which are to be found in the writings of St. Paul, but to promissory oaths respecting uncertain and future events. This is plain from the opposition in the words of Christ. "You have heard it hath been said by them of old time, thou shalt not forswear thyself, but shalt perform unto the Lord thine oath. But I say to you, swear not at all." And the reason given for it by St. James, is that "you fall not into hypocrisy," or be found deceivers; for so the word HYPOCRISY signifies in the Greek.
Again it is said by St. Paul, that all the promises of God in Christ are Yea and Amen, that is are certain and undoubted. Hence came the Hebrew phrase, that a just man's YEA is YEA, and his NO is NO. On the other hand, persons, whose actions differ from their affirmations, are said to speak YEA and NO, that is their affirmation is a denial, and their denial an affirmation. In this manner St. Paul vindicates himself from the charge of lightness of speech, adding that his conversation had not been YEA, and NO.
XIII. Affirmations are not the only modes of obligation. For in many places signs have been used as pledges of faith; thus among the Persians giving the right hand was considered the firmest tie. So that where any form is substituted for an oath, the violation of it will be an act of perjury. It has been said of Kings and Princes in particular, that their faith is the same as an oath. On which account Cicero, in his speech for Dejotarus, commends Caesar no less for the vigour of his arm in battle, than for the sure fulfilment of the pledge and promise of his right hand.
Public Conventions—Divided into treaties, engagements, and other compacts—Difference between treaties and the engagements made by delegates exceeding their powers—Treaties founded on the law of nature—Their origin—Treaties founded on still more extensive principles—Treaties with those, who are strangers to the true religion, prohibited neither by the Jewish nor Christian law—Cautions respecting such treaties—Christians bound to unite against the enemies of the Christian religion—Among a number of Allies in war, which of them have the first pretensions to assistance—Tacit renewal of treaties—The effect of perfidy in one of the contracting parties considered—How far the unauthorized engagements of delegates are binding, when the sovereigns refuse to ratify them—The Caudian Convention considered—Whether the knowledge and silence of the Sovereign makes those unauthorized conventions binding—The Convention of Luctatius considered.
I. Ulpian has divided conventions into two kinds, public and private, and he has not explained a public convention upon the usual principles, but has confined it to a treaty of peace, which he alleges as his first example, and he has made use of the engagements entered into by the generals of two contending powers, as an instance of private conventions. By public conventions therefore he means those, which cannot be made but by the authority and in the name of the sovereign power, thus distinguishing them not only from the private contracts of individuals, but ALSO from the PERSONAL contracts of sovereigns themselves. And indeed private injuries and contracts, no less than public treaties frequently prove the origin of wars. And as private contracts have been already so amply discussed, the higher order of contracts, which come under the denomination of treaties, will necessarily form the leading part in our farther inquiries.
II. and III. Now public conventions may be divided into treaties, engagements, and other compacts.
The ninth book of Livy may be consulted on the distinction between treaties and engagements, where the historian informs us, that treaties are those contracts, which are made by the express authority of the sovereign power, and in which the people invoke the divine vengeance on their heads, if they violate their engagements. Among the Romans the persons employed in declaring war and making peace, were in the conclusion of these solemn treaties, always accompanied by the principal herald, who took the oath in the name of the whole people. A sponsio, or ENGAGEMENT, is what was made by persons, who had no express commission for that purpose from the sovereign power, and whose acts consequently required a further ratification from the sovereign himself.40
The Senate of Rome, we are informed by Sallust, judged very properly in passing a decree, that no treaty could be made without their consent and that of the people. Livy relates that Hieronymus, king of Syracuse, having entered into a convention with Hannibal, sent afterwards to Carthage to have it converted by the state into a league. For which reason Seneca the elder has said, applying the expression to persons invested with a special commission for that purpose, that a treaty, negotiated by the general, binds the whole of the Roman people, who are supposed to have made it.
But in monarchies, the power of making treaties belongs to the king alone, a maxim which the language of poetry, no less than the records of history, shews to have been held in all ages. Euripides, whose sentiments are always conformable to nature, and popular opinion, in his Tragedy of the Suppliants, says, "It rests with Adrastus to take the oath, to whom, as sovereign, the sole right of binding the country by treaties belongs."
No subordinate magistrates have such a power of binding the people; nor will the acts of a smaller portion bind the greater, an argument used in favour of the Romans against the Gauls. For there was a majority of the people with Camillus, the dictator.
But it remains to be considered how far the acts of those, who have engaged for the people, without any public authority, are binding. Perhaps it may be said that the contracting parties have discharged their responsibility when they have done all in their power towards the fulfilment of their obligation. That might be the case in promises, but the obligation in public contracts is of a stricter kind. For the party contracting requires something in return for the engagements he makes. Hence the civil law, which rejects all promises made by one person for the performance of some act by another, renders him who engages for the ratification of a thing liable to pay damages and interest.
IV. The most accurate distinction in treaties, is that which makes the foundation of some rest purely upon the law of nature, and others upon the obligations, which men have either derived from the law of nature, or added to it. Treaties of the former kind are, in general, made, not only between enemies, as a termination of war; but in ancient times were frequently made, and, in some degree, thought necessary among men in the formation of every contract. This arose from that principle in the law of nature, which established a degree of kindred among mankind. Therefore it was unlawful for one man to be injured by another. And this natural justice universally prevailed before the deluge. But after that event, in process of time, as evil dispositions and habits gained ground, it was by degrees obliterated. So that one people's robbing and plundering another, even when no war had been commenced or declared, was deemed lawful. Epiphanius calls this the Scythian fashion. Nothing is more frequent in the writings of Homer than for men to be asked, if they are robbers? A question, as Thucydides informs us, by no means intending to convey reproach, but purely for information. In an ancient law of Solon's mention is made of companies formed for robbery: and, we find from Justin, that, till the times of Tarquin, piracy was attended with a degree of glory.
In the law of the Romans it was a maxim, that nations, which had not entered into terms of amity, or into treaties with them were not to be considered as enemies. But if any thing belonging to the Romans fell into their hands, it became theirs; or any citizen of Rome, taken by them, became a slave; and the Romans would treat any person belonging to that nation, in the same manner. In this case the right of postliminium41 is observed. So at a remote period, before the times of the Peloponnesian war, the Corcyraeans were not considered as enemies by the Athenians, though there was no treaty of peace subsisting between them, as appears from the speech of the Corinthians given by Thucydides. Aristotle commends the practice of plundering barbarians, and in ancient Latium an enemy signified nothing but a foreigner.
In the class of treaties referred to in this section may be ranked those made between different states for the mutual preservation of the rights of hospitality and commerce, as far as they come under the law of nature. Arco makes use of this distinction, in his speech to the Achaeans, as reported by Livy, where he says he does not require an offensive and defensive alliance, but only such a treaty as may secure their rights from infringement by each other, or prevent them from harbouring the fugitive slaves of the Macedonians. Conventions of this kind were called by the Greeks, strictly speaking, PEACE in opposition to TREATIES.
V. Treaties founded upon obligations added to those of the law of nature are either equal, or unequal. Equal treaties are those, by which equal advantages are secured on both sides. The Greeks call them ALLIANCES, and sometimes alliances upon an equal scale. But treaties of the latter kind are more properly leagues than treaties, and where one of the parties is inferior in dignity, they are called INJUNCTIONS, or INJUNCTIONS ANNEXED TO COVENANTS. Demosthenes in his speech on the liberty of the Rhodians says, all nations ought to guard against forming such leagues, as approaching too near to servitude.
Treaties of both kinds, whether of peace or alliance are made from motives of some advantage to the parties. By equal treaties of peace, the restoration of prisoners, the restoration or cession of conquered places, and other matters providing for its due maintenance, are settled, a subject that will be more fully treated of hereafter, in stating the effects and consequences of war. Treaties of alliance upon equal conditions relate either to commerce, or to contributions for the joint prosecution of a war, or to other objects of equal importance. Equal treaties of commerce may vary in their terms. For instance it may be settled that no duties shall be imposed upon the goods of the subjects, belonging to each of the contracting powers: or that the duties upon their respective commodities shall be lower than the duties upon those of any other nation. The first of these examples may be found in an ancient treaty between the Romans and Carthaginians, in which there is a clause, making an exception of what is given to the notary and public crier. Or it may be settled that no higher duties than those existing at the time the treaty is made shall be imposed, or that they shall not be augmented beyond a certain rate.
So in alliances of war the contracting parties are required to furnish equal numbers of troops or ships, a kind of alliance which, as Thucydides explains it, calls upon the united powers to hold the same states for common enemies or friends: we find, in many parts of Livy, alliances of this description among states, for the mutual defence of their territories or for the prosecution of some particular war, or against some particular enemy, or against all states excepting their respective allies. Polybius has given a treaty of this kind, made between the Carthaginians and Macedonians. In the same manner the Rhodians bound themselves by treaty to assist Atigonus Demetrius against all enemies except Ptolemy. There are other objects too for which equal treaties are made. Thus one power may bind another to build no forts in their neighbourhood which might prove an annoyance, to give no encouragement to rebellious subjects, to allow the troops of an enemy no passage through their country.
VI. From equal treaties, the nature of unequal treaties may easily be understood. And where two powers contract, this inequality may be on the side either of the superior, or of the inferior power. A superior power may be said to make an unequal treaty, when it promises assistance without stipulating for any return, or gives greater advantages than it engages to receive. And on the part of the inferior power this inequality subsists when, as Isocrates says in his PANEGYRIC, her privileges are unduly depressed; so that engagements of this kind may be called injunctions or commands rather than treaties. And these may, or may not, be attended with a diminution of their sovereign power.
Such a diminution of sovereign power followed the second treaty between the Carthaginians and Romans, by which the former were bound to make no war but with the consent of the Roman people; so that from that time, Appian says, the Carthaginians were compelled by treaty to comply with the humour of the Romans. To this kind may be added a conditional surrender, except that it leads not to a DIMINUTION, but to an ENTIRE TRANSFER of the sovereign dignity and power.
VII. The burdens attached to unequal treaties, where no diminution of sovereignty takes place, may be either transitory or permanent.
Transitory burdens are those, by which the payment of certain sums of money is imposed, the demolition of certain works and fortifications, the cession of certain countries and the delivery of ships or hostages are required. But PERMANENT conditions are those, which require the tribute of homage and submission from one power to another.
Nearly approaching to such treaties are those, by which one power is debarred from having any friends or enemies, but at the pleasure of another, or from allowing a passage and supplies to the troops of any state, with whom that power may be at war. Besides these there may be conditions of an inferior and less important kind; such as those, which prohibit the building of forts in certain places; maintaining armies, or having ships beyond a certain number; navigating certain seas, or raising troops in certain countries; attacking allies or supplying enemies. Some conditions indeed go so far as to prohibit a state from admitting refugees, and to demand annulling all former engagements with every other power. Numerous examples of such treaties are to be found in historians both ancient and modern.
Unequal treaties may be made not only between the conquerors and the conquered but also between mighty and impotent states, between whom no hostilities have ever existed.
VIII. In considering treaties, it is frequently asked, whether it be lawful to make them with nations, who are strangers to the Christian religion; a question, which, according to the law of nature, admits not of a doubt. For the rights, which it establishes, are common to all men without distinction of religion.
The gospel has made no change in this respect, but rather favours treaties, by which assistance in a just cause may be afforded even to those, who are strangers to religion. For to embrace opportunities of doing good to all men is not only permitted as laudable, but enjoined as a precept. For in imitation of God, who makes his sun to rise upon the righteous and the wicked, and refreshes them both with his gracious rain, we are commanded to exclude no race of men from their due share of our services. Yet, in equal cases, it admits of no doubt, that those within the pale of our own religious communion have a preferable claim to our support.
IX. In addition to the foregoing arguments we may observe that as all Christians are considered as members of one body, which are required to feel for the pains and sufferings of each other, this precept applies not only to individuals, but to nations and kings in their public capacity. For the rule of duty is not to be measured by the inclination of individuals, but by the injunctions of Christ. And in some cases the ravages of an impious enemy can only be opposed by a firm alliance among Christian kings, and governments. And it is a duty from which nothing, but inevitable necessity, and their immediate attention being engrossed by the prosecution of other wars, can excuse them.
X. Another question frequently arises, which is, when two states are engaged in war with each other, to which of them a power, equally allied to both, ought in preference to give assistance. Here too we must observe there can be no obligation to support unjust wars. On which account that confederate power, which has justice on its side, will have a claim to preference, if engaged in war with another not comprehended in the number of confederates, or even if engaged with one of the confederates themselves.
But if two powers engage in a war, equally unjust on both sides, a third power, united in confederacy with both, will prudently abstain from interference. Again, if two powers allied to us are engaged in a just war against others, with whom we have no connection; in the supplies of men or money that we furnish to either we ought to follow the rule, observed in the case of personal creditors.42
But if personal assistance, which cannot be divided, is required of the contracting party, in that case the preference must be given to the engagements of the longest standing. However the case of a subsequent treaty, which makes the engagements of a more binding and extensive nature, will form an exception to this rule.
XI. The tacit renewal of a treaty ought not to be presumed upon at the expiration of the period, limited for its continuance, unless certain acts be performed, which can expressly be construed as a renewal of it, and can be taken in no other sense.
XII. If one of the parties violates a treaty, such a violation releases the other from its engagements. For every clause has the binding force of a condition. And as an example of this, a passage from Thucydides may be quoted, where that historian says that "for one power to accede to a new confederacy, and to desert an ally who has neglected to fulfil his engagements, is no breach of a treaty; but not to assist another power in conformity to sworn engagements amounts to a violation thereof." And this is generally true, except where it has been agreed to the contrary, that a treaty shall not be null and relinquished for trifling disgusts and miscarriages.
XIII. Conventions are as various and numerous as treaties, and the distinction made between them is owing more to the difference of power in those by whom they are made, than to any real difference in their own nature. But there are two particular points of inquiry materially connected with all conventions, the first of which relates to the extent of the negotiator's obligation, when the sovereign or the state refuses to ratify a convention, whether he is bound to make an indemnity to the other party for the disappointment, to restore things to the situation they were in before he treated, or to deliver up his own person. The first opinion seems conformable to the Roman civil law, the second to equity as it was urged by the tribunes of the people, L. Livius, and J. Melius, in the dispute about the peace of Caudium;43 but the third is that most generally adopted, as was done respecting the two famous conventions of Caudium and Numantia. But there is one caution particularly to be observed, and that is, that the sovereign is no way bound by such unauthorised conventions, until he has ratified them. In the convention alluded to, if the Samnites had intended to bind the Roman people, they should have retained the army at Caudium, and sent ambassadors to the senate and people at Rome, to discuss the treaty, and learn upon what terms they chose to redeem their army.
XIV. Another question is, whether the knowledge and silence of the sovereign bind him to the observance of a convention. But here it is necessary to make a distinction between an absolute convention, and one made upon condition of its being ratified by the sovereign. For as all conditions ought to be literally fulfilled, such a condition, on failure of fulfilment, becomes void.
This principle was very properly observed in the convention made between Luctatius and the Carthaginians; to which the people refused to accede, as it had been made without their consent.44 A new treaty therefore was made by public authority.
The next thing to be considered is, whether there may not be some act of consent besides silence. For without some visible act, silence is not of itself sufficient to warrant a probable conjecture of intention. But if certain acts are done which can be accounted for upon no other grounds than those of consent, they are supposed to ratify a treaty. Thus if the convention of Luctatius had contained many clauses, some of them relinquishing certain rights, and those clauses had been always duly observed by the Romans, such observance would be justly taken for a ratification of the treaty.