capacity. For the rule of duty is not to be measured by the inclination of individuals, but by the injunctions of Christ. And in some cases the ravages of an impious enemy can only be opposed by a firm alliance among Christian kings, and governments. And it is a duty from which nothing, but inevitable necessity, and their immediate attention being engrossed by the prosecution of other wars, can excuse them.

X. Another question frequently arises, which is, when two states are engaged in war with each other, to which of them a power, equally allied to both, ought in preference to give assistance. Here too we must observe there can be no obligation to support unjust wars. On which account that confederate power, which has justice on its side, will have a claim to preference, if engaged in war with another not comprehended in the number of confederates, or even if engaged with one of the confederates themselves.

But if two powers engage in a war, equally unjust on both sides, a third power, united in confederacy with both, will prudently abstain from interference. Again, if two powers allied to us are engaged in a just war against others, with whom we have no connection; in the supplies of men or money that we furnish to either we ought to follow the rule, observed in the case of personal creditors.*

But if personal assistance, which cannot be divided, is required of the contracting party, in that case the preference must be given to the engagements of the longest standing. However the case of a subsequent treaty, which makes the engagements of a more binding and extensive nature, will form an exception to this rule.

XI. The tacit renewal of a treaty ought not to be presumed upon at the expiration of the period, limited for its continuance, unless certain acts be performed, which can expressly be construed as a renewal of it, and can be taken in no other sense.

*«Personal creditors are in the Roman law called Chirographarii, because they commonly have some bond or note of hand for the debt. And where there are several such creditors, if the debtor's estate is not sufficient to satisfy them all, each has his share assigned in proportion to the largeness of the debt, without any regard to the time, when it was contracted. But in mortgages it was different, the debt of longest standing was to be first satisfied.» — Barbeyrac.

XII. If one of the parties violates a treaty, such a violation releases the other from its engagements. For every clause has the binding force of a condition. And as an example of this, a passage from Thucydides may be quoted, where that historian says that "for one power to accede to a new confederacy, and to desert an ally who has neglected to fulfil his engagements, is no breach of a treaty; but not to assist another power in conformity to sworn engagements amounts to a violation thereof. » And this is generally true, except where it has been agreed to the contrary, that a treaty shall not be null and relinquished for trifling disgusts and miscarriages.

ure.

XIII. Conventions are as various and numerous as treaties, and the distinction made between them is owing more to the difference of power in those by whom they are made, than to any real difference in their own natBut there are two particular points of inquiry materially connected with all conventions, the first of which relates to the extent of the negotiator's obligation, when the sovereign or the state refuses to ratify a convention, whether he is bound to make an indemnity to the other party for the disappointment, to restore things to the situation they were in before he treated, or to deliver up his own person. The first opinion seems conformable to the Roman civil law, the second to equity as it was urged by the tribunes of the people, L. Livius, and J. Melius, in the dispute about the peace of Caudium;* but the third is that most generally adopted, as was done respecting the two famous conventions of Caudium and Numantia. But there is one caution particularly to be observed, and that is, that the sovereign is no way bound by such unauthorised conventions, until he has ratified them. In the convention alluded to, if the Samnites had intended to bind the Roman people, they should have retained the army at Caudium, and sent ambassadors to the senate and people at Rome, to discuss the treaty, and learn upon what terms they chose to redeem their army.

*When the Roman army had passed under the yoke at Caudium, upon their return, when the matter was referred to the senate, it was said that as the convention was made without the consent of the senate or people, the Roman people were not bound by it, and a proposal was made that those who had signed the treaty should again be given up to the enemy, thus the people would be released from the engagement. This proposal was agreed to, and a decree to that purpose passed.

XIV. Another question is, whether the knowledge and silence of the sovereign bind him to the observance of a convention. But here it is necessary to make a distinction between an absolute convention, and one made upon condition of its being ratified by the sovereign. For as all conditions ought to be literally fulfilled, such a condition, on failure of fulfilment, becomes void.

This principle was very properly observed in the convention made between Luctatius and the Carthaginians; to which the people refused to accede, as it had been made without their consent.* A new treaty therefore was made by public authority.

The next thing to be considered is, whether there may not be some act of consent besides silence. For without some visible act, silence is not of itself sufficient to warrant a probable conjecture of intention. But if certain acts are done which can be accounted for upon no other grounds than those of consent, they are supposed to ratify a treaty. Thus if the convention of Luctatius had contained many clauses, some of them relinquishing certain rights, and those clauses had been always duly observed by the Romans, such observance would be justly taken for a ratification of the treaty.

*Luctatius had inserted this clause that the agreement should be good and valid, only in case it was approved by the Roman people.— Liv. lib. xxi. c. xix. See likewise Polybius, lib. iii. c. xxi.

CHAPTER XVI.

THE INTERPRETATION OF TREATIES.

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 indfferent-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.* 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.

*«In all human affairs, where absolute certainty is not at hand to point out the way, we must take probability for our guide. In most cases it is extremely probable that the parties have expressed themselves conformably to the established usage: and such probability ever affords a strong presumption, which cannot be overruled but by a still stronger presumption to the contrary. Camden, in his history of Queen Elizabeth, gives us a treaty, in which it is expressly said that the treaty shall be precisely understood according to the force and appropriate signification of the terms.»— Vattel, b. ii. ch. xvii. sect. 271. On the same subject, Judge Blackstone says, that "words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use.”— Introduct. to Com. ch. ii. p. 59.