The external obligation of promises—Words where other conjectures are wanting to be taken in their popular meaning—Terms of art to be interpreted according to the acceptation of the learned in each art, trade, and science—Conjectures requisite to explain ambiguous or seemingly contradictory terms—Interpretation of treaties from the subject-matter—From consequences, from circumstances and connection—Conjectures taken from motives—The more strict or more extensive interpretation—Treaties favourable, odious, mixed or indifferent—The good faith of kings and nations in treaties of equal validity with law—Rules of interpretation formed from the above named distinctions—Whether the word allies, in a treaty, is limited to those, who were such at the time of making it, or applies to all who are, or hereafter may become such—Interpretation of the prohibition of one party's making war without the consent or injunction of the other—Of the freedom granted to Carthage—Distinction between personal and real treaties—A treaty made with a king continues even during his expulsion by an usurper, such a treaty extends not to an invader—What kind of promises ought to have the preference—The extent of obvious conjectures—The performance of a commission by doing something equivalent—Interpretation restricted more closely than the bare signification of the words implies—From an original defect of intention—From failure of the sole motive—From a defect in the subject—Observations on the last named conjectures—Emergencies repugnant to the original intention, by rendering it unlawful or burdensome—Conjectures taken from a comparison of one part of the writings with another—Rules to be observed—In dubious cases, writings not absolutely requisite to the validity of a contract—Contracts of Sovereigns not to be interpreted by the Roman law—Whether the words of the person accepting or offering the engagement ought to be most regarded—This explained by a distinction.
I. If we consider the promiser alone, he is naturally bound to fulfil his engagements. Good faith, observes Cicero, requires that a man should consider as well what he intends, as what he says. But as acts of the mind are not, of themselves visible, it is necessary to fix upon some determinate mark, to prevent men from breaking their engagements, by allowing them to affix their own interpretation to their words. It is a right, which natural reason dictates, that every one who receives a promise, should have power to compel the promiser to do what a fair interpretation of his words suggests. For otherwise it would be impossible for moral obligations to be brought to any certain conclusion. Perhaps it was in this sense that Isocrates, treating of agreements, in his prescription against Callimachus, maintains that the laws enacted on this subject are the common laws of all mankind, not only Greeks, but barbarians also. It is for this very reason, that specific forms have been assigned for treaties, which are to be drawn up in terms of unequivocal and certain meaning. The proper rule of interpretation is to gather the intention of the parties pledged, from the most probable signs. And these are of two kinds, namely, words and conjectures, which may be considered either separately, or together.
II. Where we have no other conjecture to guide us, words are not to be strictly taken in their original or grammatical sense, but in their common acceptation, for it is the arbitrary will of custom, which directs the laws and rules of speech.45 It was a foolish act of perfidy therefore in the Locrians, when they promised they would adhere to their engagements as long as they stood upon that soil, and bore those heads upon their shoulders, in order to evade their promise to cast away the mould, which they had previously put within their shoes, and the heads of garlick, which they had laid upon their shoulders. Acts of treachery like these, Cicero, in the third book of his Offices, has properly observed, instead of mitigating, tend to aggravate the guilt of perjury.
III. In terms of art which are above the comprehension of the general bulk of mankind, recourse, for explanation, must be had to those, who are most experienced in that art; thus from consulting legal writers, we may conceive the nature of particular crimes, or from the pages of the same authors, derive our notions of sovereign power.
It is a just remark of Cicero's, that the language of logic is not that of daily and familiar intercourse: the writers of that class have phrases peculiar to themselves: which indeed is the case with arts of every description. So in treaties, where military arrangements occur, an army is defined to be a number of soldiers capable of OPENLY invading a foreign, or an enemy's country. For historians everywhere make a distinction between the private incursions of robbers, and what is done by a lawful and regular army. What constitutes an army must be therefore judged of by the enemy's force. Cicero defines an army to consist of six legions and auxiliaries. Polybius says, that a Roman army in general amounted to sixteen thousand Romans, and twenty thousand auxiliaries. But a military force might be composed of a less number of troops than this. In the same manner the number of ships sufficient for any purpose will amount to a fleet, and a place able to hold out against an enemy may be called a fort.
IV. It is necessary to make use of conjecture, where words or sentences admit of many meanings: A mode of expression when included in one word, is called by Logicians, a synonymous term, and, when extending to two or more words, a doubtful phrase. In the same manner it is necessary to have recourse to conjecture whenever a seeming contradiction occurs in the expressions of a treaty. For in that case we must try to discover such conjectures, as will reconcile, if possible, one part with another. For if there be an evident contradiction, the contracting parties by their latter determinations, must have intended to abrogate their former; as no one can design to make contradictory resolutions at the same time. Indeed all acts depending upon the human will, as in the case of laws and testaments, which depend upon the will of one party, and in contracts and treaties, which depend upon that of two or more, all these acts are liable to changes, with a subsequent change of will in the parties concerned. In all such cases any obscurity in the language obliges us to have recourse to conjectures, which are sometimes so obvious, as to point out a meaning directly contrary to that of the words in their usual acceptation. Now the principal sources of conjecture are to be found in the subject-matter, the consequences, and the circumstances and connection.
V. From the subject or matter, as for instance, in the word day. Thus if a truce be made for thirty days, here civil and not natural days are meant.46
So the word donation is sometimes used to signify a transfer, according to the nature of the business. In the same manner too the word arms, which in general signifies military instruments, is sometimes applied to troops, and may be taken in either sense, according to the particular occasion. Every interpretation must be given according to the intention understood. Thus the promise of a free passage given upon the evacuation of a town, implies also that the troops shall pass without molestation. If a number of ships are to be given up, perfect and not mutilated ships are meant. And in all similar cases a similar judgment must be formed according to the natural tenor of the words.
VI. Another source of interpretation is derived from the consequences, especially where a clause taken in its literal meaning would lead to consequences foreign or even repugnant to the intention of a treaty. For in an ambiguous meaning such an acceptation must be taken as will avoid leading to an absurdity or contradiction. The cavil of Brasidas therefore is highly abominable, who, promising that he would evacuate the Boeotian territory, said he did not consider that as Boeotian territory, which he occupied with his army; as if the ancient bounds were not intended, but only what remained unconquered, an evasion, which entirely annulled the treaty.
VII. From the circumstances or context another source of interpretation is derived. No inconsiderable light may be thrown upon the meaning of an expression from the circumstance of its being used by the same person to express the same intentions on other similar occasions, and from its relation to what goes before, and what follows the place, where it stands. For in all doubtful cases, we have reason to suppose that the contracting parties mean to be consistent with their former opinions and intentions. Thus in Homer, in the agreement between Paris and Menelaus, that Helen should be given up to the conqueror, when compared with what follows, it is evident that by the conqueror is meant the combatant, who killed the other. This rule of interpretation, Plutarch illustrates by the conduct of judges, "who passing by what is obscure rest their decisions upon clear and unambiguous points."
VIII. As to the motives, which are sometimes taken for a rule of interpretation, there may be other substantial ones, besides those immediately expressed, for the passing of a law or the making of a treaty. Yet the strongest conjecture is that which arises from certain proof that the will was actuated by some reason, operating as a sole and sufficient motive. For there are frequently MANY motives, and sometimes the will is influenced by its own choice independent of any other reason. In the same manner a grant made, in contemplation of a marriage, will be void, if the marriage never takes place.
IX. It is further to be observed that many words have a variety of acceptations, some more limited and others more extensive; which may be owing either to the application of a general name to a particular class of things, as in the words kindred and adoption; or to the use of masculines to express animals both of the male and female kind, where nouns of a common gender are wanting. In terms of art too, words are often taken in a metaphorical or extended sense: thus in the civil law death signifies banishment; but in its popular acceptation a dissolution of the parts of the natural body.
X. In promises likewise, some things are of a favourable, some an odious, and others of a mixed or indifferent description. Favourable promises are those which contain an equality of terms, or which bear some relation to the common good, the magnitude and extent of which increases the favour of the promise: so that all engagements more conducive to peace than to war are to be considered as those of a favourable complexion, and alliances for mutual defence are always regarded as a more laudable object than those for offensive war.
Treaties of an odious kind are those which lay greater burdens on one party than on the other, which contain penalties for non-performance, or which lead to an abrogation or infraction of former treaties. Whereas, though engagements of a mixed nature may create a deviation from former treaties, they may be taken either in a favourable or odious light, according to the magnitude, or object of the change produced. If it be for the sake of peace, it is better, taking all circumstances into consideration, to rank them with those of a favourable kind.
XI. The distinction made by the Roman law between acts of equity and those of strict justice, cannot GENERALLY be applied to the law of nations, though it may in some cases be adopted. Thus in any transaction between the subjects of two countries, in each of which the same form of legal proceeding is observed, the parties are supposed to treat without any intention of deviating from the common rule and form, unless they have expressly determined to the contrary. But in acts for which no common rule is prescribed, as in donations and free promises, there the parties are supposed to treat according to the strict letter of the agreement.
XII. After the establishment of the former positions, the subject naturally proceeds to the rules themselves, which are to be observed in the interpretation of treaties. And in the first place we may remark, that in things, which are not of an odious nature, words are to be taken strictly in their popular meaning, and where they admit of exceptions, or have more significations than one, it is lawful to use that which is most extensive. As it has been already observed, that both Logicians and Grammarians frequently use particular terms in a general sense. Thus Cicero in pleading for Caecina, justly maintains that the interlocutory decree, ordering THAT THE PERSON EJECTED FROM HIS INHERITANCE SHOULD BE REINSTATED IN THE POSSESSION, implies not only an ejectment, but extends to any forcible prevention of the owner's taking possession.
In things of a favourable nature, if the parties engaged are acquainted with the legal principles, upon which they proceed, or rest upon the judgment of those who are so, the words used may be taken in their most extensive signification, including even terms of art and of law.47 Again, we must never have recourse to a metaphorical interpretation, except where the literal meaning would lead to a direct absurdity, or would defeat the intention of a treaty.
On the other hand a passage may be interpreted in a more limited signification, than the words themselves bear, if such interpretation be necessary, to avoid injustice or absurdity. If no such necessity exist, but equity or utility manifestly require a restriction to the literal meaning, it must be most rigidly adhered to, except where circumstances compel us to do otherwise. But in things of an odious nature a figurative expression may be allowed in order to avoid inconvenience or injustice. Therefore, when any one makes a grant, or relinquishes his right, though he express himself in the MOST GENERAL terms, his words are usually RESTRICTED to that meaning, which it is probable he intended. And in cases of this kind, the hope of retaining a thing is sometimes taken for the act of possession. In the same manner it is understood that subsidies of men, promised by one party only, are to be maintained at the expence of the power, who requires them.
XIII. It is a famous question whether the word ALLIES includes only those who were such at the time of making the treaty, or those who might afterwards become so: as was the case in the treaty made between the Roman people and the Carthaginians at the conclusion of the war that had originated in a dispute about Sicily, by which treaty it was stipulated that both powers should forbear attacking the allies of each other. Hence the Romans inferred that although the convention made with Asdrubal, by which he was prohibited from passing the Iberus, had been of no service to them, as it had not been ratified by the Carthaginians, yet if the Carthaginians sanctioned the conduct of Hannibal in his attack upon the people of Saguntum with whom the Romans, after the making of that convention, had entered into an alliance, they should consider themselves as authorised to declare war against the Carthaginians for having violated a solemn treaty. Upon which Livy reasons in the following manner, "By the clause in favour of allies on both sides, there was sufficient security for the Saguntines. For there was no limitation of the words to those, who were allies at that time, nor were they such as to exclude either power from making new alliances. But if both sides were at liberty to make new alliances, who could think it just to deprive the new allies of that protection to which they would be entitled from treaties of amity? The exclusion could reasonably go no further than to declare that the allies of the Carthaginians should not be seduced to renounce their engagements, nor if they did so, be admitted into alliance with the Romans."
The last passage is taken, almost word for word, from the third book of Polybius. On which we may observe that the word ALLIES may strictly mean those, who were so at the time, when the treaty was made, and, without any forced interpretation, may also be extended to embrace those, who afterwards became such. To which of these interpretations the preference is to be given may be seen from the rules above given: and according to those rules, it will be found, that alliances formed after the making of the treaty will not be comprehended in it, because it relates to the breach of a treaty, the violation of which is an odious act, and tends to deprive the Carthaginians of the liberty of redressing themselves by force against those who were supposed to have injured them; a liberty sanctioned by the law of nature, and not to be abandoned on any slight occasion. Were the Romans debarred then by this rule from making any treaty with the Saguntines, and defending them after they became allies? No! they had a right to defend them, not by virtue of any treaty, but upon principles of natural justice, which no treaty can annul. The Saguntines therefore with respect to both powers were in the same situation, as if no engagement had been made in favour of allies. In this case, it was no breach of treaty for the Carthaginians, upon just grounds, to commence hostilities against the Saguntines, nor for the Romans to defend them. Upon the same principle, in the time of Pyrrhus, it had been stipulated, by treaty, between the Carthaginians and Romans, that if either of them afterwards entered into any engagement with Pyrrhus, the party so contracting should reserve to itself the right of sending succours to the other, if attacked by that king. Though in that case the war ON BOTH SIDES could not be just, yet it would involve no infraction of any treaty. This is an example of a case in equal treaties.
XIV. The case of an unequal treaty may be put, where it is agreed that one of the confederate parties shall not make war, without the consent, or by the injunction of the other, which was stipulated in the treaty between the Romans and Carthaginians, after the conclusion of the second Punic war. When the term WAR is applied to war of every description, particularly to offensive rather than defensive war; in a dubious case, it must be limited to its proper signification, lest the treaty should operate as too great a restraint upon the liberty of that power, which has engaged in the unequal treaty.
XV. Of the same kind is the promise given by the Romans, that Carthage should be free, which could never mean the enjoyment of complete independence, by a people, who had long before lost the right of making war, and many of their other privileges. Yet it left them some degree of liberty, so much at least, that they should not be obliged to remove the seat of their government at the command of any foreign power, and gave them a pledge that their city should not be disturbed. It was in vain then for the Romans to urge that it was only the city which was intended. Whereas those acquainted with the use of metaphorical language know that by the city is frequently meant the inhabitants, and government with its privileges, and not the mere walls and houses. For the term, BEING LEFT FREE, implies that the people should enjoy their own laws.
XVI. The nature of personal and real treaties is a frequent subject of inquiry, which may properly be examined in this place. Indeed in all transactions with a free people, the engagements entered into with them are of a real nature; because the subject of them is a permanent thing. So permanent, that, although a republican be changed into a regal government, a treaty will remain in force: for the political body continues the same, although the head be changed, and the sovereign power, which before was diffused among many members, is now centered in one. Yet this rule will admit of an exception, where it is evident that the specific form of government made an essential part of the treaty, as when two states make a federal union for the mutual preservation of their political systems. But if a treaty be made with a King or Sovereign Prince, it does not consequently follow that it is to be considered only as a PERSONAL and not a REAL treaty. For the name of a person may be inserted in a treaty, not merely to give it the character of a personal treaty, but to point out the contracting parties. And this will be still more evident, if, as is usual in most treaties, a clause is annexed declaring it to be perpetual, or made for the good of the kingdom, or with the king himself, and his successors, and it will also be considered as a real treaty, even if it is stated to be passed for a definite time. The treaty between the Romans and Philip, King of the Macedonians, seems to have been of this description, which, upon the refusal of his son to continue it, gave rise to a war.
Other forms too besides those already named, and the subject itself, will frequently supply no improbable grounds of conjecture. But if the conjectures are equal on both sides, it will remain that favourable treaties are supposed to be real or permanent, and odious ones only personal. All treaties of peace or commerce are favourable. Yet all treaties of war are not odious, especially those of the defensive kind, such a character belonging only to offensive wars, from the contemplation of the calamities which they inflict. It is presumed too, that in the formation of treaties, the character of each party is taken into the account, and that both are persuaded that neither of them will commence hostilities, but from just and important causes.
What is usually said of societies terminating with the death of the parties, has no connection with this subject, but relates to private societies, the cognizance of which belongs to the civil law. Whether it was right or wrong therefore in the people of Fidenae, the Latins, Tuscans and Sabines, upon the death of Romulus, Tullus, Ancus, Priscus, Servius, to abandon the respective treaties made with those kings, it is impossible for us now to decide, those treaties being no longer extant. On the same point, Justin maintains a discussion, whether those states, which had been tributary to the Medes, were upon a change of government, released from their obligations. For the thing to be considered is, whether the convention with the Medes had been a voluntary act of their own. Indeed the argument of Bodinus can by no means be admitted, which is, that treaties made with kings extend not to their successors; For the obligation of an oath is limited to the person of him, who takes it. It is true that the oath itself can bind only the person who takes it; yet the engagements, which it confirms, will be binding upon his heirs. Nor is it to be taken for an established maxim, that oaths are the only foundation, on which treaties rest. The engagement itself is sufficiently binding, the oaths being only added to give it the greater sanctity. In the Consulship of Publius Valerius, the Roman people had taken an oath to muster at the command of the Consul. Upon his death, he was succeeded by Lucius Quintius Cincinnatus. Some of the tribunes began to quibble, pretending that the people were released from their obligation. Upon which Livy, in his third book, remarks, that "at that time they had not degenerated into the disregard of religious obligations, which marked his age: nor did every one allow himself a latitude in explaining oaths, and laws, but thought that he was bound to conform to their literal meaning."
XVII. A treaty made with a king continues in force, even though the same king or his successor should be banished from the kingdom by rebellious subjects. For the rights of a king, among which his alliances may be reckoned, remain unimpaired, during the temporary loss of his throne. A case to which the expression of Lucan may be applied, that "order never loses its rights under any change of circumstances."
XVIII. On the other hand, any war, if it be with the consent of the lawful sovereign, made upon the invader of his kingdom, or upon the usurper of a free people's rights before his usurpation has received public sanction, will be deemed no infraction of any former treaty with the established authorities of that kingdom or country. For acts of usurpation convey not immediately any right beyond that of bare possession. And this is what was said by Titus Quintius to Nabis, "We made no treaty of alliance and amity with you, but with the just and lawful king of the Lacedaemonians." For in treaties the characters of King, Successor, and the LIKE, carry with them an idea of a peculiar and lawful right, which must always render the cause of USURPERS odious.
XIX. It was a question formerly discussed by Chrysippus, whether a prize promised to him, who first reached the goal, could be given to two, who reached it at the same time, or to neither. But as rewards of merit are things of a favourable nature, it is the juster opinion that they should divide the prize. Although Scipio, Caesar and Julian acted more liberally, in giving the entire prizes to each of those who had ascended the walls together.
What has been already said upon the literal or figurative application of the words, in interpreting treaties, will be sufficient.
XX. There is also another kind of interpretation, arising from conjectures, which apply exactly to the signification of the words containing a promise or engagement; and that is of a twofold description, either extending or limiting the meaning. But it is more difficult to extend than to limit the acceptation of expressions. For as in all matters the want of one essential requisite is sufficient to defeat their effect; so in engagements, those conjectures, which extend the obligation are not readily to be admitted. And it is much more difficult here than in the case above mentioned; where words allow a more extensive but less familiar acceptation. For here it is seeking a conjecture to extend the words of a promise: the conjecture therefore, which is to create an obligation, ought to be very certain. Nor is it sufficient that there is some resemblance in the motives; for the motive produced to confirm an obligation must be exactly the same as that of the case under consideration. Neither is it always proper to allege a motive for extending an obligation; because, as it has been already said, motives, in actuating us to form engagements, may sometimes be swayed by the will which often acts independently of any just motive. To authorise therefore such an extension, it must be evident that the motive, produced as an example and authority, was the sole and effectual cause, which influenced the promiser, and that he considered it in the same extensive view; for otherwise it would have been unjust and prejudicial. The ancients in their treatises on rhetoric follow the same rule, when, in speaking of the LETTER and DESIGN, they give us one invariable form of expressing the same sentiment, but in their syllogisms or arts of reasoning they point out a way of interpreting what is not written, by what is written. In the same manner too legal writers lay down rules for avoiding frauds. Now if at a time, when there was no other mode of fortifying towns, than by surrounding them with walls, it were stipulated that a certain place should not be so surrounded, it is evident that to employ any other means of fortification would be a breach of that treaty.
As in the above case the interpretation must be extended to guard against every possible evasion, so in the following example, the prohibition to assemble an armed force to assail us includes all kinds of violence and force, by which our lives and security may be endangered.48
XXI. Hence may be solved the question to be found in Gellius, respecting a commission, whether it can be fulfilled by doing, not the immediate act required, but some thing equivalent to it, or in a manner more beneficial than in the form prescribed. For this deviation from the written rule may be proper and lawful, where the prescribed form is not essential towards attaining the object, or where, by departing from it, that object can be better accomplished, according to the answer given by Scaevola, that the person required to be bail and security for another, may give an order to a third person to pay that money to the creditor. But where such a latitude of interpretation is not evidently admissible, we must adhere to what Gellius has said in the same place, that it would be a dissolution of all trusts, if the party acting in commission were, in all cases, left to his own discretion, rather than bound by his written instructions.
XXII. An interpretation, restricted more closely than the literal signification of the words containing a promise absolutely requires, may arise either from some original defect in the intention of the promiser, or from some subsequent emergency repugnant to such intention. Thus if it were evident that an absurdity would follow the fulfilment of a promise, this would be sufficient to prove an original defect in the intention, because no man can be supposed to have deliberately intended doing an absurd act. Or if the sole and effectual reason, by which the promise was influenced, should have ceased, the obligation also would be void, the sole ground on which it rested being no longer in existence.
XXIII. In the next place, where any sufficient reason can evidently be assigned for a promise or engagement, it is not the substance of the promise itself, which is to be considered, so much as the reason for which that promise was given.
XXIV. Thirdly, the contending parties must always be supposed to have in contemplation the subject, and nothing but the subject, however extensive a signification the words may seem to bear. This method of interpretation also is handled by the ancient rhetorical writers, in speaking of expression and design, and they place it under the head of Variations in opinion.
XXV. In speaking of motives and reasons, it is proper to observe, that they some times comprehend things, considered not according to their actual existence, but according to their moral consequences: in which case it is by no means right to limit the words of a treaty to their literal meaning, but the utmost extent of interpretation is allowable, in order to maintain the spirit as well as the letter of such treaties. Thus if it be stipulated that no troops or ships shall be brought to a certain place, or within a certain distance, the prohibition excludes ALL ships or troops from being brought thither, even under the fairest and most harmless pretences. For the purport of the treaty is to guard not only against actual mischief but even against remote danger.
It is a point often disputed, whether the continuance of things in their present state is a tacit condition, on which the fulfilment of all promises is founded. A position that can by no means be maintained, unless it appears that such continuance was the sole motive upon which the treaties were made. As in many parts of history, we read of ambassadors having relinquished their missions, and returned home, upon finding the state of things so changed that the object of their embassies was at an end.
XXVI. When an emergency arises repugnant to the general intention of an act, it is explained by the ancient masters of rhetoric under the head of expression and design. Now this variation between the emergency and the intention is of a twofold nature. For the will and its intention are to be collected either from natural reason or from some outward sign. In judging of the will by natural reason, Aristotle, who has treated the subject with great accuracy, makes the MIND the SEAT OF JUDGMENT, and the WILL the SEAT OF EQUITY, which he nobly defines to be the correction of that, wherein the law, by reason of its universal nature is defective.49
And upon this principle all wills and treaties ought to be interpreted. For as all cases could neither be foreseen nor expressed by the lawgiver, it is necessary to leave a power of excepting the cases, which he himself would have excepted if he were present. Yet this is not to be done upon light grounds; for that would be exercising a controul over the acts of another; but is only to be established upon the clearest evidence and strongest proofs. The clearest proof we can have of a want of equity, is where following the literal meaning of the words would be unlawful, that is, repugnant to natural or divine precepts. For such things, as are incapable of obligation, are necessarily to be excepted. Quintilian the elder, says, "some things although comprehended within the meaning of no law form a natural exception." Thus any one, who has promised to return a sword, that has been given up to him, ought not to return it into the hands of a madman, as danger might result from it to himself or to other innocent persons. Likewise a thing, which has been deposited with any one, ought not to be returned to the hands of the person, who gave the pledge, if the real owner demands it. I prove this says Triphonius to be justice, which assigns to every one his own without disturbing the still juster claims of another. For the reason, it has been already observed, is founded on the institution of property, which makes it unjust not to return a thing when the real owner is known.
XXVII. The need of equity too will appear in cases, where following the literal meaning of the words will not be absolutely unlawful, yet, upon a fair estimation, will be found too hard and intolerable. It might impose a hardship inconsistent with the general condition of human nature, or, upon comparing the person and matter under consideration with each other, it might be found at variance with the general intent of all law, which is to prevent evil and to redress injury. Thus, if a person has lent a sum of money, or any other thing, for a CERTAIN time, he may justly require the repayment or restoration of it WITHIN that time, if he has great need of it himself: for acts of kindness are of such a nature, that no one can be supposed intentionally to bind himself thereby to manifest inconvenience or prejudice. In the same manner a sovereign, who has promised assistance to an ally, will, IN EQUITY, be excused from fulfilling his engagement, if he wants all his strength at home to ward off danger or hostilities. The grant also of immunities or privileges in ORDINARY cases, cannot be pleaded as an exemption or exception from the services, which the state in PARTICULAR emergencies requires.
From the above instances it appears that Cicero has too loosely worded his proposition, "that such promises, as are prejudicial to the person, to whom they are given, are not to be kept, nor, if they are more prejudicial to the party giving, than beneficial to the person receiving them." For it should not be left to the promiser to judge, whether the fulfilment of his engagement will be serviceable to the party receiving it, except in the case of the madman cited above: nor is any TRIVIAL or IMAGINARY prejudice that might result from it, sufficient to release the obligation. But it ought to be such, as, according to the nature of the act, would necessarily be supposed to form an exception. Thus any one, having promised his assistance to a neighbour at a certain period, would not be bound to his engagement, if he were detained at home by the sickness of a father or a child. A case, which Cicero, in his first book of offices, has put in the following terms, "If any one has undertaken to manage a cause, and, in the mean time, his son is taken ill, it will be no breach of duty in him not to perform what he has promised." There is a passage in the fourth book of Seneca, On Benefits, to the same effect. "I am liable, says he, to be charged with levity, and a breach of faith, if, things continuing as they were, when I made a promise, I do not perform my engagement. But if any change has taken place, it leaves me at liberty to reconsider the matter, and releases the obligation. I promised my support in court, and it afterwards appeared that the cause would be prejudicial to my own father. I promised to take a journey, but afterwards heard that the road was infested with robbers. I promised my presence on some particular occasion, but was prevented from attending by the sickness of a son. In all these cases, to bind me to my engagement, the circumstances ought to remain exactly the same as they were when I made the promise."
XXVIII. It has been said that there are other indications of intention, which require an equitable exception in favour of the present case. And among such proofs there can be nothing stronger than the same words used in another place, not where they directly oppose the present meaning, for that would amount to a contradiction, but where they clash with it, owing to some unexpected emergency, which the Greek Rhetoricians call a circumstantial disagreement.50
XXIX. When there is any accidental collision between one part of a written document and another, Cicero, in the second book of his treatise On Invention, has given rules for deciding which of them ought to have the preference. Though his arrangement is not very accurate, yet it is by no means to be neglected. To supply therefore this defect of accuracy, the rules may be digested in the following order.
In the first place, a PERMISSION ought to give way to a COMMAND: because a permission appears to be granted only in case there is no weightier objection than its being an exception to a positive precept, nor any preponderance in favour of an opposite determination. Consequently, as the writer to Herennius says, what is positively prescribed is more powerful than a bare permission.
In the next place what is required to be done at a FIXED time should have the preference to what may be done at ANY time. From whence it follows that the PROHIBITIONS of a treaty are generally of more weight than its INJUNCTIONS: because the prohibitory power operates at ALL times. But it is not so with injunctions, unless an express time for their fulfilment is named, or they contain a tacit prohibition.
Among those treaties, which, in the above named respects, are equal, the preference is given to such as are more particular, and approach nearer to the point in question. For where particulars are stated, the case is clearer, and requires fewer exceptions than general rules do.51
Those prohibitions which have a penalty annexed to them, are of greater weight than those, which have not; and those with a greater penalty are enforced in preference to those that have a less. Those engagements also which are founded upon causes of less magnitude and importance ought to give way to those which have more laudable and useful objects in view.
Lastly it is to be observed that a subsequent law or treaty always repeals a former.
From what has been said an inference may be drawn in favour of sworn treaties or agreements that they ought to be taken in the most usual acceptation of the words, rejecting all implied limitations and exceptions, and such as are not immediately necessary to the subject. Consequently in a case, where a sworn treaty or engagement may happen to clash with another not enforced by the obligation of an oath, the preference ought to be given to the former.
XXX. It is often asked whether in doubtful points, a contract should be deemed perfect, before the writings are made and delivered. We find in Appian's history of the Mithridatic war, that it was upon this very ground Murena objected to the convention between Sylla and Mithridates. However it appears plain, unless it has been settled to the contrary, that writing ought to be considered admissible as evidence of a contract, though not as part of the substance, otherwise it is usually expressed, as in the truce with Nabis, which was to be ratified from the day the terms were WRITTEN and DELIVERED to him.
XXXI. We can by no means admit the rule laid down by some writers, who maintain, that all engagements of kings, and states, ought to be explained, as far as it is possible, upon the principles of the Roman law: unless indeed it can be made to appear that among some states, in their intercourse with each other, the CIVIL LAW is received as the LAW OF NATIONS; a presumption which ought not to be hastily granted.
XXXII. As to the doubt, which Plutarch advances in his Symposiacs, whether the words of the party offering, or those of the one accepting a condition ought to be most attended to, it appears that where the party accepting the terms is the promiser, the nature and substance of the transaction will depend upon his words, if they are absolute and unqualified. For if the offer is regarded as a positive engagement to do certain acts, then the full extent of it will be seen by the necessary repetition of the same words in the promise. But before a condition is accepted, it is evident, as was seen in the chapter on promises, that the promiser is not bound to its fulfilment; for no right has been conferred by the one party, or acquired by the other. Therefore the offer of a condition of this kind does not amount to a perfect promise.
On Damages occasioned by injury, and the obligation to repair them—Every misdemeanor obliges the aggressor to repair the loss—By loss is meant any thing repugnant to right strictly so called—Distinction between fitness and strict right—Loss or diminution of possession includes every injury done to the produce as well as the property itself—Loss estimated from the time that gain ceases—Injuries done by principals—By accessories—Injuries done by the neglect of principal or of secondary agents—What persons are implicated in those charges, and in what degrees—The parties engaged answerable for all consequences—The case where homicide or any other act of violence ensues—Case of robbery—Or theft—Promises obtained through fraud or unjust fear—In what cases the consequences are imputable to the suffering party—How far the law of nations authorises states to take advantage of an enemy's fear—How far sovereigns are answerable for any acts of violence committed by their subjects—The case where subjects in violation of their sovereign's permission and orders commit acts of piracy upon allied or neutral states—No one answerable by the law of nature for the mischief done by his cattle, his slaves, or his ship—Damages allowed for injuries done to reputation or honour—What kind of reparation allowed.
I. It has been said above that the rights due to us arise from three sources, which are contract, injury and law. It is unnecessary here to dwell upon the nature of contracts which has been already so fully discussed. The next point therefore to which we proceed is an inquiry into the rights resulting to us from injuries received. Here the name of crime or misdemeanor is applied to every act of commission or neglect repugnant to the duties required of all men, either from their common nature or particular calling. For such offences naturally create an obligation to repair the loss or injury that has been sustained.
II. By loss is meant a diminution of what any one possesses, whether it be a right derived to him purely from the law of nature, or from the addition of human authority, that is from the law of property, contract, or civil law. God has given life to man, not to destroy, but to preserve it; assigning to him for this purpose a right to the free enjoyment of personal liberty, reputation, and the controul over his own actions. The manner, in which property and contracts convey to any one a right to things, as well as to the service of another, has been shewn in the preceding part of this treatise. In the same manner from the law every man derives his peculiar right; because the law has the same, if not greater power over persons and things than individuals themselves have. Thus by the appointment of law, a ward has a right to demand the strictest diligence of a guardian, the state of a magistrate, and not only the state, but every subject has a right to require it; where the law expressly declares or evidently implies that certain acts shall be performed. But the bare circumstance of an action being fit or proper gives not the right of POLITICAL justice to demand its performance, nor does the neglect of it entitle the party suffering to any legal redress. Because it does not follow that a thing must belong to a person because it is fit or beneficial for him. Thus, as Aristotle says, there is no actual injustice, though it may be illiberal to refuse assisting another with money. To the same purpose Cicero, in his speech for Cneius Plancus, says, that giving their votes to whom they please, or withholding them if they think proper, is the true characteristic of a free people. He afterwards, indeed, corrects his assertion by adding, that they may happen to do what they like, rather than what they ought to do, taking the word OUGHT to signify propriety.
III. A precaution is necessary here, in order to avoid confounding things of a different kind.
Now those who are entrusted with the power of appointing magistrates, are bound, from motives of public good, to chuse the properest persons, and this is what the state has a RIGHT to require of them. They are bound therefore to repair any loss which the state may sustain by the choice of improper persons. So any subject who is not disqualified, though he has no peculiar right to an office, has an equal right with others to endeavour to obtain it. In the exercise of which right, if, he is obstructed by violence or fraud, he may recover damages, not to the full value of the office which he sought, but according to the probable loss which he may reasonably be supposed to have suffered. Similar which is the right of a legatee, when a testator has been prevented by fraud or violence from making a bequest. For the capability of receiving a legacy is a kind of right, which to obstruct a testator from conferring, is undoubtedly an injury.
IV. The loss or diminution of any one's possessions is not confined to injuries done to the SUBSTANCE alone of the property, but includes every thing affecting the produce of it, whether it has been gathered or not. If the owner himself had reaped it, the necessary expence of reaping, or of improving the property to raise a produce, must also be taken into the account of his loss, and form part of the damages. For it is an established maxim that no one ought to derive benefit from the loss of another.
V. Damages are to be computed too, not according to any ACTUAL gain, but according to the REASONABLE expectation of it. Which in the case of a growing crop may be judged of by the general abundance or scarcity of that particular season.
VI. But besides the person immediately doing an injury, others may be bound also to repair the losses of the suffering party. For as a person may be guilty of offences by negligence as well as by the commission of certain acts, so they may be done also by accessories, as well as principals. Now a principal in any crime or offence is one, that urges to the commission of it, that gives all possible consent, that aids, abets, or in any shape is a partner in the perpetration of it.
VII. An accessory is one who gives his counsel, approbation, and assent. For where is the difference, says Cicero, in his second Philippic, between advising an act, and approving of it?
VIII. and IX. The obligation to repair the losses suffered by negligence may be considered in a two-fold light. Firstly, when any person, whose peculiar office it is, neglects either to forbid the commission of an injury, or to assist the injured party. And secondly, when the person, who ought to do it, either does not dissuade from the commission of an offence, or passes over in silence, what he is bound to make known. In these cases, when it is said that a person OUGHT to do, or to forbear doing certain actions, it is meant that he is bound by that right, which strict justice requires, whether that duty arises from law, or from the capacity, which the person bears. For though it may be wrong to omit any duty enjoined by the law of charity, there can be no redress for such omission, but every LEGAL REMEDY must be founded on some PECULIAR RIGHT.
X. It is to be observed also that all the parties above-mentioned, if they have been the real occasion of loss to any one, or have abetted the person doing him the injury, are so far implicated in the guilt, as to be liable to full damages, or, at least, proportionably to the part they have taken. For it may and often does happen that a crime would have been committed by an offender, even without the aid of other principals or accessories. In which case he alone is answerable. Yet neither principals nor accessories will be allowed to plead as an excuse, that if they had not aided or abetted, others would have been found to assist and encourage the perpetrator in the commission of the act. Especially, if it appears that without such assistance from them the crime would never have been committed. For those other imaginary abettors would themselves have been answerable, if they had given their advice or aid.
XI. In the scale of implication the first degree applies to those, who by their authority, or other means have compelled or urged any one to the commission of an offence. On failure of these the perpetrator himself has the greatest share of guilt, and next to him, others who have been concerned. In short, all individuals, whose hands have been engaged in the perpetration, are guilty, though they have not been the sole authors of the act.
XII. Now he who is answerable for an act, is answerable for all the injurious consequences attending it. Seneca in one of his controversies, treating upon this point, puts the case of a plane-tree set on fire, by which a house was burnt, and he subjoins the following remark, "although the mischief went further than was intended, yet the person doing it was answerable for the WHOLE, as much, as if he had done it by design. For any one that puts his defence upon the plea of UNINTENTIONAL INJURY, ought to have abstained from all mischief whatsoever." When Ariarathes, king of Cappadocia had wantonly obstructed the channel of the river Melas, which discharges itself into the Euphrates, the swell of waters bursting the mounds, the Euphrates rose to such a height, as to occasion excessive damage to the Cappadocians, the Galatians, and the Phrygians. Upon which the decision of the matter being left to the Romans, they imposed upon him a fine of three hundred talents.
XIII. XIV. XV. and XVI. But to proceed with other instances of injury, which render the parties committing them liable to repair the losses occasioned thereby. The case of excusable homicide may be alleged as one, wherein the person, who has committed it, is bound to make every reasonable compensation to the family, dependents, and connections of the deceased party, in proportion to the loss, which they have sustained from his death. As Michael the Ephesian in the fifth book of Aristotle's Ethics has observed, that the compensation made to the parents, the wife or children of the deceased is nearly the same as if it could be made to himself. The writer is here speaking of excusable homicide, that is, when the person by whom it is committed, does it not in the immediate discharge of some legal duty. Wherefore if any one, in defending himself, has killed another from whom he might have escaped, though he may have violated the law of charity, yet he has not incurred the penalty of a capital offence.
Upon the same principle the person, who has maimed or mutilated another, will be bound to make him a compensation, proportionably to the means of subsistence which he is deprived of by such a calamity.
A thief or a robber is bound to restore what has been taken, and to return it with all the improvements it may have acquired, or to make reparation to the owner, in proportion to the gain, which the privation has prevented him from making, or to the actual value of the thing itself. If the thing has been irretrievably consumed, the estimation of damages must be made, according to a medium between the highest and the lowest value.
To this class of offences and due reparation may be referred all frauds upon the public revenue, all unjust decisions, or all false evidence, by which states or individuals are injured.
XVII. Contracts, or promises obtained by fraud, violence or undue fear entitle the injured party to full restitution. For perfect freedom from fraud or compulsion, in all our dealings, is a RIGHT which we derive from natural law and liberty.
With the same class of offenders we may rank all men in office, who are unwilling to discharge their duty without a bribe.
XVIII. When a person has HIMSELF been the occasion of the fraud or violence, the consequences are imputable to his own conduct. For where a voluntary act gives rise to INVOLUNTARY consequences, those consequences, considered in a moral light, are to be deemed the fruits growing out of the exercise of a free will.
XIX. But to connect the preceding cases and arguments with public and national concerns, it is necessary to observe, that it is a maxim introduced and established by the consent of all nations that the wars which are declared and conducted by the authority of the sovereign power on both sides are alone entitled to the denomination of just wars: And the enemy has no right to demand restitution for what the prosecution of such wars has reduced him to abandon through fear. It is upon this principle we admit the distinction which Cicero has made between an enemy, towards whom the consent and law of nations oblige us to observe many common rights, and between robbers and pirates. For any thing given up to pirates or robbers, through fear, is no lawful prize: but it may be recovered, unless a solemn oath of renunciation has been taken. This is not the case with the captures made in just war.
The justification which Polybius makes for the Carthaginians, in the second Punic war, carries with it an appearance of equity, though it is not a question immediately founded upon the law of nations. They alleged as a reason for their making that war, that, when they were engaged in quelling a mutiny of their own mercenaries, the Romans had declared war, seized upon Sardinia, and levied contributions of money.
XX. Sovereign Princes and States are answerable for their neglect, if they use not all the proper means within their power for suppressing piracy and robbery. And on this account the Scyrians were formerly condemned by the Amphictyonic council.
When some of the states of the united Provinces had, on a particular occasion, granted commissions to many privateers, and those adventurers plundered friends and enemies alike, and became general pirates, it was a subject of great discussion, whether those states were justified in having made use of the services of desperate and abandoned men, without exacting sufficient security for their good conduct. At that time, it was maintained that they were bound to nothing more, than to punish or deliver up the offenders, if they could be found, and to see justice done by a forfeiture of their property. For they themselves had neither authorised those UNJUST acts of plunder, nor shared in the fruits of them. They had even strictly prohibited the privateers from molesting the subjects of friendly powers. As to their taking securities, there was no obligation to do that: for they had a right to grant a GENERAL commission to all their subjects to seize upon the enemy's property: a thing, which had frequently been done. Nor could that particular commission be considered as an act of injustice against either allies or neutrals; since even without such permission individuals might have fitted and sent out armed vessels. The states could not foresee, nor consequently provide against the misconduct of those adventurers, who had exceeded their commission; and if nations were to decline using the assistance of wicked men, no army could ever be collected. And it has been confirmed by the authority both of France and England, that a sovereign cannot answer for every injury done to the subjects of a friendly power by his naval or military forces; especially if it is plain that they acted in violation of his orders.
But in what cases any one is released from being answerable for what is done by his subordinate agents, is a point not so much for the law of nations, as for the municipal law, and particularly the maritime code of each country to decide. In a case similar to that alluded to, a decision of the supreme court of judicature was made against the Pomeranians two centuries at least before.
XXI. It is the CIVIL law too, which makes an owner answerable for the mischief or damage done by his slave, or by his cattle. For in the eye of natural justice he is not to blame. So neither is the person, whose ship, by running foul of another, has damaged it, though by the laws of many nations, and of ours among the rest, the damages are usually divided between both parties, owing to the difficulty of deciding, who was in fault.
XXII. Damages are allowed too for any injury done to our honour or reputation, by assault, slander, or various other ways. In which, as well as in theft and other crimes the nature of the offence is to be estimated by its consequences. For the reparation in such cases answers to the penalty imposed for crimes. And that reparation is made some times by acknowledging the injured party's innocence; and some times by a compensation in money, which is a standard value of all things.
Right of Embassies, an obligation arising out of the law of nations—Where it obtains—Whether Embassies are always to be admitted—Dismissal or punishment of ambassadors engaging in plots not to be considered as a harsh measure, but an act of self-defence—A power to whom no ambassador has been sent, not bound to respect the rights of embassy—An enemy to whom an ambassador is sent bound to respect his rights—The law of retaliation no plea for ill treatment of an ambassador—This right of protection extends to an ambassador's suite, if he thinks proper to claim it—To his moveable property—Examples of obligation without the right of compulsion—Importance of the sacred character of ambassadors.
I. Hitherto the pursuit of our inquiries has led us to examine those rights to which we are entitled by the law of nature, occasionally touching upon those points where its authority is farther confirmed by the voluntary law of nations. And that voluntary law as it is called, gives rise to certain obligations, which now remain for our discussion, and in which the rights of ambassadors form a leading feature. Almost every page of history offers some remark on the inviolable rights of ambassadors, and the security of their persons, a security sanctioned by every clause and precept of human and revealed law. Nor is it surprising that the persons of those should be deemed inviolable, who form the principal link in that chain, by which sovereigns and independent states maintain their intercourse with each other. To offer violence to them is not only an act of INJUSTICE, but, as Philip in his letter to the Athenians says, is acknowledged by all to be an act of IMPIETY.
II. But whatever rights the law of nations may confer upon ambassadors, it is necessary in the first place to observe, that none are entitled to them, but those, who are sent by the sovereigns of independent countries to each other. For the privileges of provincial, or municipal deputies sent to the states general of any country are regulated by the particular laws of that country and not by the law of nations.52
Thus we find, in the first book of Livy, an ambassador styling himself a public messenger of the Roman People; and, in the sixth book of the same historian, we have a declaration of the senate, confining the rights of embassies to the intercourse between foreign powers, and excluding citizens from the same privileges in their transactions with each other. Upon this topic, the authority of Cicero may be cited, who, in order to shew the impropriety of sending ambassadors to Antony, observes, that they are not dealing with a Hannibal or a foreign enemy, but with one of their own citizens.
Now Virgil has so clearly explained WHO are to be reckoned FOREIGNERS, that we need not have recourse to lawyers, to understand what is so well expressed by the poet, who says, "I look upon every country as foreign, which owns not the sway of our sceptre." Aen. vii. 369.
A state therefore connected with another though by an unequal treaty, if it retain its independence, will have a right of sending embassies. The Princes of Germany, who were in some respects subject to the Emperor, as their head, being Sovereign Princes possessed the right of sending ambassadors to foreign states. But Kings who have been entirely subdued in just war, and stripped of their dominions, have, with all their other sovereign rights, lost that of sending ambassadors. It was for this reason, that Paulus Aemilius made prisoners of the messengers sent to him by Perseus, whom he had conquered.
In civil wars necessity sometimes gives birth to new rights in violation of former rules. When for instance, a kingdom is so equally divided between two parties, that it is a matter of doubt which of them constitutes the nation, or in a disputed succession between two claimants of the crown; the kingdom may be considered as forming two nations at the same time. Tacitus, considering each party in such cases, as entitled to the rights of the law of nations, condemns the Flavians for having, in the rage of civil dissensions, violated, in the persons of the Vitellian ambassadors, those privileges, which are respected even among FOREIGN nations. Pirates and robbers, as they form no civil community, cannot rest any claim to protection and support upon the law of nations. Tiberius, as we are informed by Tacitus, when Tacfarinas sent ambassadors to him, spurned at the idea of treating with a robber, as with a lawful enemy. Yet sometimes a pledge of public faith, and the rights of embassy are allowed to men of that description, which was done by Pompey to the fugitives from the Pyrenean forest.
III. There are two points upon which the privileges granted by the law of nations to ambassadors turn. In the first place, they have a right to be admitted into any country, and secondly to be protected from all personal violence. Respecting the former of these points, there is a passage in the eleventh book of Livy, where Hanno, a Carthaginian senator inveighs against Hannibal for not having admitted into his camp ambassadors, who came from the allies, and on their behalf; as he had thereby overturned the law of nations.
But this rule by no means compels nations to give an UNQUALIFIED admission to all ambassadors. For that is what the law of nations can never intend: it only prohibits the refusal of admission without sufficient grounds.
There are various motives which may afford a sufficient plea for such refusal. There may be an objection to the power who offers to treat, to the person sent upon the embassy, or perhaps to the object of his mission. Thus at the suggestion of Pericles, Melesippus, the Lacedaemonian ambassador, was sent out of the territories of Athens; because he came from an enemy, who had no pacific intentions. The senate of Rome said, that they could receive no embassy from Carthage, as long as the Carthaginian army remained in Italy. The Achaeans refused to admit the ambassadors of Perseus, who were secretly MEDITATING war against the Romans. Upon the same grounds Justinian rejected an embassy from Totilas, and the same was done by the Goths at Urbino to messengers from Belisarius. Polybius relates in the third book of his history, that every power drove away the ambassadors of the Cynethensians, as they were so infamous a people.
We have an instance of the second kind, where the objection is made to the PERSON sent on an embassy, in the case of Theodore, who was called the atheist, and whom Lysimachus refused to receive in the character of an ambassador sent from Ptolemy, and the same thing has frequently happened to others, against whom peculiar motives of aversion have existed.
In the third place, there may be sufficient grounds for refusing to admit an ambassador, if the object of his mission be of a suspicious kind, as was the case with that of Rhabshakeh the Assyrian, whom Hezekiah had reason to suspect of coming with a design to excite his people to rebellion. Or the refusal may be justified, where it is not consistent with the dignity or circumstances of one power to enter into any treaty, or intercourse with another. For this reason the Romans sent a declaration to the Aetolians, that they should send no embassy, but with the permission of their general, and Perseus was not allowed to send one to Rome, but to Licinius. Jugurtha's ambassadors too, as Sallust informs us, were ordered to leave Italy within the space of ten days, unless they came with offers from that prince to surrender himself, and his kingdom.
There may often be the best reasons for a sovereign's refusing to allow of a RESIDENT minister at his court; a practice, so general in the present day, but totally unknown to the ages of antiquity.
IV. As to the personal exemption of ambassadors from arrest, constraint, or violence of any kind, it is a subject of some difficulty to determine, owing to the varieties of opinion entertained by the most celebrated writers on the question. In the consideration of this matter, our attention is directed in the first place to the personal privileges and exemptions of ambassadors themselves, and next to those of their attendants, and their goods. With respect to their persons, some writers are of opinion, that it is ONLY from UNJUST VIOLENCE, and ILLEGAL CONSTRAINT, that the law of nations protects ambassadors. For they imagine that their privileges are to be explained according to the common principles of the law of nature. Others again suppose that ambassadors are not amenable to punishment for ALL offences, but only for such as amount to a transgression of the law of NATIONS, the principles of which are of such general extent, as to include the law of nature: consequently there can be no offences for which an ambassador is not punishable, except for those actions that are made such by the positive rules of MUNICIPAL or CIVIL LAW.
Others again consider these public representatives of states and crowned heads, as only liable to punishment for offences affecting the dignity or governments of the sovereigns to whom they are sent. While, on the other hand, there are some writers who maintain that for any state to punish an ambassador for ANY CRIME WHATEVER is highly dangerous to the independence of foreign powers; but that all offenders of that description ought to be left to the laws of their respective countries, to be punished or not according to their deserts, upon due complaint being made to the sovereigns by whom they were sent.
Some few writers, indeed, in laying down the rule to be observed in such cases, have decided that an appeal should be made to other independent and disinterested powers, which may be considered rather as a matter of DISCRETION, than of ABSOLUTE RIGHT. But the advocates of all these various systems have come to no definite conclusion in support of their favourite opinions. For this is a right which cannot, like the law of nature, be established upon unchangeable rules, but derives all its efficacy from the will of nations. Nations if they had thought proper, certainly might have laid down ABSOLUTE rules of security for ambassadors, or coupled them with certain exceptions. The argument is supported on one side by the urgent necessity of heinous crimes being punished, and on the other, the utmost latitude of exemption is favoured on account of the utility of embassies, the facility of sending which ought to be encouraged by every possible privilege, and security. To settle the point therefore, we must consider how far nations have agreed among themselves upon these principles; the proofs of which can only be found in the evidence of history.
Many instances may be produced in favour of both opinions. And in cases like this, the opinions of those celebrated for their judgment and knowledge will be of no small weight, but in some cases we must rest upon conjectures. On this subject the two eminent historians, Livy and Sallust, may be quoted as authorities, the former of whom, in mentioning the ambassadors of Tarquin, who had been guilty of fomenting treasonable conspiracies at Rome, says, "that although they deserved to be treated as enemies for their guilty conduct, yet the privilege, which they derived from the law of nations, prevailed over every other consideration." Here we see that the rights of ambassadors could not be annulled even by the most criminal acts of hostility. But the observation made by Sallust, relates rather to those who come in the train of an embassy than to ambassadors themselves. The law of nations surely then will not deny the same privilege to a principal, which it evidently allows to those who form but a subordinate part in the public mission. The historian says, that "Bomilcar was arraigned and tried rather upon principles of equity and natural justice, than in conformity to the law of nations, as he belonged to the train of Jugurtha; who had come to Rome under the pledge of public faith."