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 voluntary 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 external† 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.

*There is a distinction to be observed between the NECESSARY, and the VOLUNTARY law of nations. Vattel defines the NECESSARY law to be "that which is always obligatory on the conscience, and of which a nation ought never to lose sight in the line of conduct she is to pursue in order to fulfil her duty, but when there is a question of examining what she may demand of other states, she must consult the VOLUNTARY law, whose maxims are devoted to the safety and advantage of the universal society of mankind."-Prelim. sect. 28.

The writer quoted in the preceding note defines that obligation "to be INTERNAL, which binds the conscience, and is deduced from the rules of duty; and that to be EXTERNAL, which is considered relatively to other men, and produces some right between them."-Ibid. sect. 17.

A treaty may be more advantageous to one of the contracting parties than to the other, and yet contain nothing unjust. «Frequently a great monarch, wishing to engage a weaker state in his interest, offers her advantageous conditions, promises her gratuitous succours, or greater than he stipulates for himself; but at the same time he claims a superiority of dignity, and requires respect from his ally. It is this last particular which renders the alliance uneQUAL: and to this circumstance we must attentively advert; for with alliances of this nature we are not to confound those in which the parties treat on a footing of equality, though the more powerful of the allies, for particular reasons, gives more than he receives, promises his assistance gratis, without requiring gratuitous assistance in his turn, or promises more considerable succours or even the assistance of all his forces: here the alliance is equal, but the treaty is unequal, unless indeed we may be allowed to say, that, as the party who makes the greater concessions has a

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 HA

BITUAL.

greater interest in concluding the treaty, this consideration restores the equality. Thus, at a time when France found herself embarrassed in a momentous war with the house of Austria, and the cardinal de Richelieu wished to humble that formidable power, he, like an able minister, concluded a treaty with Gustavus Adolphus, in which all the advantage appeared to be on the side of Sweden. From a bare consideration of the stipulations of that treaty, it would have been pronounced an unequal one; but the advantages which France derived from it, amply compensated for that inequality.»- Vattel, b. ii. ch. 12. sect. 175. p. 200, 201.

CHAPTER XIII.

ON OATHS.

Efficacy of oaths among Pagans - Deliberation requisite in oathsThe 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