[176] CHAPTER XIV.

Of the Promises, Contracts, and Oaths of Sovereigns.

I. 1 THE Promises, Contracts, and Oaths of Kings, and other persons who have like authority, give rise to peculiar questions, both as to the lawful power they have over themselves and their own actions, and that which they have over their subjects, and that which they have over their successors.

As to the first head, it is made a question whether the king, as he can relieve his subjects from an oath, can do the same to himself, and put himself back into his original condition. Bodinus thinks that the king may be so reinstated, on the same grounds as a subject would be so; whether he have been circumvented by the fraud and deception of another party, or by his own error, or fear; and this, both in matters which affect the rights of the sovereignty, and those which pertain to private advantage. He adds, that the king is not even bound by an oath, if the conventions made are of that kind from which the law permits parties to recede, even though the agreement is conformable to propriety; for (he holds) he is not therefore bound, because he has sworn, but because every one is bound by just conventions, so far an the interest of another is concerned.

2 We make a distinction hero, as we have done in other places, between the acts of the king which are royal acts, and acts of the same person which are private acts. For in royal acts, what the king does is to be held as if it were done by the community: and as laws made by the community itself would have no force over such acts, because the community is not superior to itself, so neither have laws made by the king any such force. Therefore against such contracts, restitution will not hold: for this restitution is a creature of the Civil Law. And thus kings are not relieved from contracts which they had made as minors.

177 II. 1 If a people have established a king who has not plenary rights, but is under additional legal constraints, acts contrary to these laws may be by them made void; either altogether, or in part; because to this extent the people had retained a right to itself. In the case of kings who reign with plenary rights, but have not the kingdom as their own property, such acts of theirs as alienate the kingdom or a part thereof, or its revenues, have been discussed above; and we have shown that such acts are by Natural Law void, as being acts done to the property of another.

2 But the private acts of the king are to be considered, not as the acts of the community, but as acts of a private party, and consequently, done with the intention of following the common rule of law. Wherefore the laws which make some acts void, either absolutely, or if the person injured by them demands that they should be so, hold here also; as if the contract had been made under that condition. And accordingly we have seen certain kings protect themselves in this way against the evil of usury^*. But the king may release his own acts, as he may those of others, from these laws: and whether he intends to do this, is to be estimated from the circumstances. If he does, the matter must then be judged by mere Natural Law. This is to be added; that if any law make an act void, not in favour of the doer, but as a penalty on him, this does not hold against the acts of kings; as in other matters also, penal laws, and all which has a power of coercion do not apply to them. For punishment and coercion can only proceed from diversity of will: the coercer and the coerced require distinct persons; distinct relations [of the same person] are not sufficient.

III. A king, as a private person, may nullify an oath, antecedently, if by a prior oath be deprive himself of the power of swearing to such an effect; but consequently, [after the act,] he cannot do this [by his royal authority:] for here too a distinction of persons is required. For the oaths which are nullified subsequently to the act, were already understood to be made with the exception, “except a superior refuse his consent;” but to swear in such a sense, that you are bound, except you yourself refuse consent, is absurd, and contrary to the nature of an oath. But although a right may not be acquired by another person in virtue of the oath, on account of some defect in the person who swears, yet that he is bound to God, we have shewn above: and this applies to kings no less than to others; contrary to the sentiments of Bodinus in the place cited.

IV. Also Promises, when full, absolute, and accepted, naturally transfer a right, as we have shewn above; and this likewise applies to kings, no less than to others: so that we condemn, in this sense, the 178opinion of those who say that a king is never bound by the promises which he made without a cause. In what sense this may be truly held, we shall hereafter see.

V. What we have said above, that the Civil Law of the kingdom does not hold in the compacts and contracts of kings, Vasquius also has rightly seen. But his inferences, that buying and selling without a certain price, letting and hiring without stating the hire, a lease without a writing, are valid if done on the part of kings, is not to be conceded: because these acts are not done by the king as king, but by him as by any other person. In this class of acts, it is so far from being true, that the common laws of the kingdom have no force, that we maintain that even the laws of the town in which the king lives are of force: inasmuch as the king abides there in a special manner, as a member of that society. Which, however, is as we say, except circumstances show that it pleases the king to make his act free from the authority of those laws. Another example which Vasquius gives, of a promise made in any way [informally], agrees well with this rule, and may be explained by what we have said above.

VI. 1 Almost all jurists deliver an opinion that by contracts which the king enters into with his subjects, he is obliged naturally only, not civilly: which is a very obscure way of speaking. For juristical writers sometimes by an abuse of language call that, natural obligation, which it is by nature a handsome thing to do, though it is not truly due: as for an executor to pay legacies entire without the deduction which the Falcidian law allows; to pay a just debt when the creditor has been deprived of his legal right by a penal sentence; to return a benefit for a benefit; none of which, [when done,] can be recovered by an action of false debt. But sometimes, more properly, they use the term for that which truly obliges or binds us; whether another person thereby acquire a right, as in pacts, or does not, as in a full and firm pollicitation or proffer. Maimonides distinguishes these three cases; things which are not due, he calls kindnesses things due by strict law, judgments; things due by propriety, justice. So Mattb. xxiii. 23, mercy, judgment, and faith, are by some interpreted, as if faith were put for righteousness: judgment means what is strictly due: see 1 Macc. vii. 18, and viii. 32.

2 Again; a person may be said to be civilly obliged by his own act, either in this sense,—that the obligation does not proceed from mere Natural Law, but from the Civil Law, or from both;—or in this sense, that it gives ground for an action in a Court of Law.

We say then that by the promise and contract of a king, which he enters into with his subjects, there arises a true and proper obligation, which confers a right upon the subjects: for this is the nature of promises and contracts, as we have shewn above, even between God and men. But if the acts be such as are done by the king, but done by him, only as by any other man, the Civil Laws also will be valid in that case: but if the act be an act of the king as king, the Civil Laws 179do not apply to that; which distinction has not been sufficiently attended to by Vasquius. But notwithstanding this distinction, in either case a legal action will arise from the act; namely, to the end that the right of the creditor may be declared: but coaction cannot follow, on account of the condition of those with whom the business is. For it is not allowable for subjects to compel him whose subjects they are: equals have such a right towards equals, by nature; superiors have it over subjects by law only.

VII. This also is to be noted, that a right, even when it has been acquired by subjects, may be taken away by the king in two modes; either as a Penalty, or by the force of Eminent Dominion. But to do this by the force of Eminent Dominion, there is required, in the first place, public utility; and next, that, if possible, compensation be made, to him who has lost what was his, at the common expense. And as this holds with regard to other matters, so does it with regard to rights which are acquired by promise or contract.

VIII. Nor may we, in this matter, in any way admit the distinction which some make, between rights acquired by force of Natural Law, and those which come from the Civil Law. For the right of the king over the one class and the other is equal, and the latter cannot, any more than the former, be taken away without cause. For when ownership, or any other right, has been legitimately acquired by any one, that it may not be taken away from him without cause, is a matter of Natural Law. If the king act in any other way, he is without doubt bound to repair the damage done: for he acts against the true right of the subject. In this therefore the rights of subjects and the rights of foreigners differ;—that the rights of foreigners, (that is, of those who are not subjects in any way,) are by no means subject to the right of Eminent Dominion; (whether they are subject to Penalty, we shall hereafter see;) but the rights of subjects are liable to that right, so far as public utility demands.

IX. From what we have said, this also appears:—how false that Is which some deliver, that the Contracts of Kings are Laws. For, from laws, no one acquires a right against the king; therefore, if he revokes them, he does wrong to no one. (He sins, however, if he do so without just cause.) But from his promises and contracts, rights arise. By contracts, the contracting parties only are bound; to laws, all are subject. But yet some transactions may be mixed of contracts and laws, as a treaty made with a neighbouring king, or with a farmer of the revenues, which is at the same time published as a Law, so far as it contains things to be observed by the subjects.

X. Let us proceed to the case of Successors: and with regard to them, we must make a distinction, whether they are heirs to the whole property of the deceased as well as to the kingdom; as those are who receive a patrimonial kingdom by testament, or by intestacy; or whether they are only successors to the kingdom; suppose by a new election, or by the law of the land, or by some imitation of the com180mon rule of inheritance, or otherwise: or whether, finally, they succeed by mixed right. For with regard to those who are heirs of all the property as well as of the kingdom, there can be no doubt that they are bound by the promises and contracts of their predecessor. For the rule, that the property of the deceased is bound for debts, even for personal debts, is a rule coeval with property itself.

XI. 1 But of those who succeed only to the kingdom; or to the property as sharers only, but to the kingdom, alone; how far they are bound, is a matter worthy of inquiry, especially as it has hitherto been treated very confusedly. That the successors of the kingdom, as such, are not directly and immediately bound [by these contracts,] is evident enough; because they receive their rights, not from him who has lately deceased, but from the people; whether the rule of succession approach more nearly to the rule of common inheritance, or recede further from it; of which difference we have treated above.

2 But mediately, that is, by the mediate effect of the State, such successors also are bound; which will be thus understood. Every society, no less than individual persons, has the right of binding itself, by its own act, or that of the majority. And this right it may transfer, either expressly, or by necessary consequence; suppose, by transferring the government: for in moral matters, he who gives the end, gives the means which lead to the end.

XII. 1 But this does not go to an infinite extent. For an infinite power of imposing such obligations is not necessary, in order rightly to exercise the government: as such power also is not necessary for a guardian or a Tutor; but only so much as the nature of the office requires. The Tutor is reckoned in the place of the owner, says Julian, when he administers his pupil’s affairs, not when he plunders him: and in this sense we are to understand what Ulpian says, that the contract of the master of a society, may not only bring advantage to the society, but also disadvantage. But yet we are not, as some hold, to reduce the engagements of a king to the rules of one man undertaking another’s business; namely, that his acts are then only valid when they turn out to the advantage of the principal party. For to put the Ruler of the State to such a strait, would be dangerous to the State itself. And accordingly, the community is to be supposed to have held this opinion, when it bestowed the government upon him. And what the Roman Emperors declared, in a Rescript with respect to the corporation of a town,—that what was transacted by the magistrates should be of force in a doubtful case, but not, if what was unquestionably due was given away,—may be and ought to be applied to our question, relative to the whole People, observing a due proportion in the application.

2 As the subjects are not bound by every law; for there may be laws, (even without going to those which command something unlawful,) which are evidently foolish and absurd;—so too the contracts of Governors then bind their subjects, when they have a probable reason; 181and 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 interests 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 respect182ing 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 contract. 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.

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.