and in a doubtful case, this may be presumed, on the authority of the Governors. And this distinction is much better than that which is put forth by many, governed by the result, according as it is a moderate or an immoderate damage. For it is not the result which is to be regarded in such a case, but the probable reason for doing the thing; if there be such a reason, the People itself will be bound, if by any event it should become its own master; and the successors to the government, as the heads of the People. For, in like manner, if a free People had made any engagement, he who afterwards should receive the sovereignty, in the fullest manner, would be bound by the engagement.

3 The emperor Titus is praised on this account, that he would not allow himself to be petitioned to confirm any thing which his predecessors had granted, [holding the grants valid without such process ;] while Tiberius and those emperors who followed him, did not recognize the grants of their predecessors as valid, till they had themselves repeated them. The excellent emperor Nerva, following the example of Titus, says, in an edict which is extant in Pliny, Let no man suppose that what he has obtained from another Prince, either privately or publicly, shall be by me revoked, that so, if I confirm those grants, he may be the more obliged to me; no man's congratulation need be accompanied by such petitions. But on the other hand, when Tacitus had related of Vitellius, that he had torn the empire in pieces, reckless of the inte rests of posterity, the common world flocking about him to catch his extravagant gifts, and some even purchasing his favour with money; he adds: Wise men held those grants to be void, which could be neither given nor received without damage to the State.

4 That must also here be added; that if in any case a contract begins to tend, not only to some loss, but to the ruin of the community, so that, from the beginning, the contract in its extension to that case would have been unjust and unlawful; then that contract may, not so much be revoked, as declared not to be binding any longer, as being made without the condition without which it could not justly be made.

5 What we have said of contracts, holds also of the alienation of the People's money, and of any other things which the king has by law a power to alienate for the public good. For here too a similar distinction is to be applied, whether there was a probable reason for giving or otherwise alienating.

6 But if the engagements have reference to the alienation of the kingdom or its parts, or of the royal patrimony, they will be invalid, as being a contract about that which is another's. The same will hold in limited monarchies, if there be any matter or kind of act which the people has excepted from the royal power. For in order

to give validity to such acts, there is required the consent of the People, either by itself, or by those who legitimately represent the People; as may be understood by what we have said above respect

ing alienation. By the application of these distinctions, it will be easy to judge whether the pleas of kings who refuse to pay their predecessors' debts, not being their heirs, are just or unjust: of which examples may be seen in Bodinus.

XIII. Nor is that which many have delivered, that the favours of Princes, granted out of pure liberality, may at any time be revoked, to be allowed to pass on without distinction. For there are some grants which the king makes out of his own property, and which, except they are granted expressly during pleasure only, have the force of a complete donation. And these cannot be revoked, except, in the case of subjects, in the way of penalty, or for the sake of public utility, and then with compensation if it may be. There are other grants which merely remove legal restrictions, without any These are revocable. Because, as the law which is relaxed universally may always be re-established universally, so, that which is relaxed particularly may be re-established particularly. For in this case no right against the author of the law is acquired.

contract.

XIV. By contracts made by those who without right have usurped the government, the People, or the Legitimate Sovereign are not bound. For Usurpers have no authority to bind the People.

However, the People are bound by what has been expended for their benefit [by an Usurper;] that is, so far as they are the richer for it.

I.

(OMPACTS or Conventions are divided by Ulpian into public

and private and public, he expounds, not by definition, but by examples which he gives; a treaty of peace, which is the first example; or when the generals in a war make some convention, which is the second. By public compacts or conventions, therefore, he understands those which can only be made by the supreme government or some public governor; by which character they differ, not only from the contracts of private persons, but from the contracts of kings about their private concerns. For though causes of war arise from the latter also, they proceed more commonly from public questions. Therefore, since we have discussed many points with regard to compacts in general, we must add some remarks belonging to this more eminent kind of compact.

II. These public agreements we may divide into Public Treaties, Sponsions, and other Compactst.

III. 1 With regard to the difference of Public Treaties (Fœdera) and Conventions made on personal responsibility (Sponsiones), we may take Livy's view, in which he says that fœdera are treaties made by the sovereign power of the State, in which the people is liable to the Divine wrath if it do not make good its engagements. Among the

* Mr Wheaton adopts the term Sponsions, exactly in the sense in which Grotius uses it in this Chapter, as denoting engagements made without full authority. International Law, Part 1. Chap. 11, § 3. (1836).

t See E. M. 1124.

Romans they were formally made by the Feciales, with the Pater Patratus at their head. Sponsions is the term which we may use when persons not having a commission from the Supreme Authority make any engagement which properly touches that authority. Sallust says, The Senate, as was to be expected, decreed that no Treaty (foedus) could be made without its direction and that of the people. Hieronymus, king of Syracuse, made a Convention of alliance with Annibal; but afterwards sent to Carthage to convert the Convention into a Treaty. So that when Seneca says, The Treaty made by the General was held as made by the People, he must mean the generals of the old time, who had such a commission. In kingdoms, it is the king's office to make Treaties. See Euripides.

2 As a Magistrate's acts do not bind the People, so neither do those of the smaller part of the people: which justifies the Romans in breaking their convention with the Galli Senones; for the greater part of the people was with the Dictator Camillus; and as Gellius. says, the People cannot be treated with in two bodies.

3 But when they who have not authority from the people have made a convention respecting something which belongs to the rights of the people, let us see to what they are bound. It may be thought perhaps that, in this case, the party who made the convention have performed their engagement, if they have done all that was possible for them, that the terms of the convention on their part should be fulfilled; according to what we have said in speaking of promises. But the nature of these affairs, which involve a contract and not a mere promise, requires a much stricter obligation. For he who in a contract gives anything of his own, or promises it, expects something to be done for him by the other side: whence by the Civil Law also, which repudiates promises for the acts of others, yet a promise of the agent binds and is valid so far as he is concerned.

IV. In Livy, Menippus, rather for his purpose than scientifically, divides Treaties between Kings and States into three kinds; treaties of a conqueror in war with the conquered, and in these the terms depend on the will of the victor: treaties of peace between parties who end a war with equal success; and here the terms are equal, and possessions which had been disturbed by war are restored by agreement; and these treaties are constructed either on the ancient forms, or according to the convenience of the parties: and the third kind, when those who have never been enemies make a treaty of friendship and alliance; neither party giving and neither receiving

the law.

V. 1 We must make a more accurate division. We say then that some treaties establish that which is conformable to Natural Law; others add something to it. Treaties of the former kind are not only commonly made by hostile parties ending a war, but formerly were both frequent, and in a certain way necessary, between those who had before had nothing to do with each other. Which

arose from this, that the rule of Natural Law, that there is a certain natural relationship among men, and that therefore it is unlawful for one man to harm another, as it was obliterated by vicious habits before the deluge, so was it again after the deluge: so that robbery and plunder of strangers without declaring war, was held lawful: a Scythism, as Epiphanius calls it.

2 Hence we have that question in Homer, Are ye Pirates? asked as an inoffensive inquiry, as Thucydides notices: and in an old law of Solon there are mentioned companies of Freebooters; since, as Justin says, up to the time of Tarquin, Sea Rovers were objects of admiration and again, in the old Roman law, If there be any nation with which the Romans have neither friendship, nor friendly intercourse, nor alliance, they are not enemies indeed; but that what belonging to the Romans goes into their power is theirs, and a free Roman taken by them becomes a captive; and the same if any come ⚫from them to the Romans. [Dig. XLIX. 15.] Thus the Corcyreans, before the Peloponnesian war, were not enemies of the Athenians, but had neither peace nor truce with them, as appears by the oration of the Corinthians in Thucydides. Sallust says of Bocchus, not known to us either in war or in peace. Hence Aristotle praises those who plunder barbarians: and the old Latin word hostis meant only stranger.

3 In this class are comprehended treaties in which it is provided that there shall be on both sides the right of hospitality and of intercourse, so far as they come under Natural Law, of which we have treated elsewhere. This distinction is referred to by Arcus in Livy, where he says, that the question is not concerning alliance but intercharge of rights; namely, that they should not let the Macedonian slaves find a refuge among them. The whole of this class of conventions the Greeks call Peace, and oppose to Truce. See Andocides.

VI. 1 Conventions which add something to Natural Law are either equal or unequal. Those are equal, which bear equally and commonly on both parties, as Isocrates says. So Virgil. The Greeks distinguish them from Unequal Compacts and Conventions of Command, which are less dignified, and, as Demosthenes says, to be avoided by those who love liberty, as approaching to servitude.

2 Conventions of both kinds are made for peace, or some alliance: equal treaties of peace are those which stipulate restitutions of captives and captures on both sides, and mutual security. Equal treaties of alliance either pertain to commerce, or to alliance in war, or to other matters. Equal treaties on the subject of commerce may be various, for instance, that no import duties be paid on either side, which was the agreement in the old treaty of the Romans and Cartha ginians, except what was paid to the harbour-master and the public crier; or that no duties be paid greater than at present, or greater than a certain rate.

3 In alliances for war, the terms may be, that each side supply equal forces of infantry, cavalry, and ships: either for the whole war,