[183] CHAPTER XV.

Of Treaties and Sponsions^*.

I. COMPACTS 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 Compacts^†.

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 184Romans 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 (fœdus) 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 185arose 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 Carthaginians, 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, 186which the Greeks called Symmachia, and which Thucydides explains, to have the same friends and the same enemies: as also in Livy; or for defensive purposes only, which was Epimachia; or for a certain war, or against certain enemies; or against all, excepting allies, as in the league between the Carthaginians and Macedonians, in Polybius; so also the Rhodians by treaty promised aid to Antigonus and Demetrius against all, except Ptolemy.

An equal treaty may also, as we have said, pertain to other matters; as, that neither shall have fortresses within the boundaries of the other; that neither shall defend the subjects of the other; that neither shall give passage to the enemies of the other.

VII. 1 From the explanation of what are equal conventions, it is easily understood what are unequal. Unusual Treaties are either proposed by the superior party, or by the inferior. By the superior, as if he promises assistance without any reciprocal stipulation: by the inferior, when there is an inferiority of claim, are what we have spoken of as Conventions of Command. And these are either without infringement of the sovereignty of the inferior, or such as infringe it.

2 Such as infringe the sovereignty, as in the second treaty of the Romans with the Carthaginians, that the latter should not make war without the permission of Rome: from that time, as Appian says, the Carthaginians were by treaty submiss to Rome.

To this class we might add surrender on conditions, except that this contains, not an infringement, but a transfer of the sovereignty, of which we have spoken elsewhere. Such a convention Livy calls fœdus in the case of the Apulian Theates.

3 In unequal treaties made without infringement of the sovereignty, the burthens imposed on the inferior are either transitory or permanent: Transitory, as the payment of a subsidy, the dismantling of strong towns, the withdrawing from certain places; the giving up hostages, ships, elephants: Permanent, as the paying deference to the authority and majesty of the superior; of which engagement I have elsewhere spoken. Nearly of the same kind is the engagement to have for enemies and for friends those whom the other party shall prescribe; not giving passage or provisions to a party with whom the other is at war. And the smaller matters; not building forts in certain places, not having a moveable army, not having ships beyond a certain number, not founding a city; not navigating; not raising soldiers in certain places, not attacking allies, not supplying provisions to the enemy; rescinding treaties before made with other parties: of all which we may find examples in Polybius, Livy, and others.

4 Unequal treaties may be made, not only between the conqueror and the conquered, as Menippus thought, but between the more and the less powerful who have never been at war.

VIII. It is often made a question whether it is lawful to make 187treaties with those who are strangers to the true Religion; which point, in Natural Law, is open to no doubt. For that Law is so far common to all men that it recognizes no distinction of Religion. But the question is put on the ground of the Divine Law, and so treated, not only by Theologians but by Jurists, and among them, by Oldradus and Decianus.

IX. 1 First of Divine Law. We have examples of covenants for mutual forbearance, with strangers to true Religion, before the law of Moses, as Jacob with Laban, not to speak of Abimelech. The law of Moses did not change this: for example, the Hebrews are forbidden to treat the Egyptians as enemies. The seven Peoples of Canaan are an exception, on account of their obstinate idolatry.

2 Treaties of commerce, and the like, may be made with such persons: so David and Solomon with Hirom king of Tyre.

3 The Law of Moses separates the Jews from the rest of mankind. But that the Jews were not to do good to other nations, was a perverse interpretation of later masters. See Juvenal, Cicero, Seneca, Apollonius Molo, Diodorus, Philostratus, Josephus.

4 ThIs was not Christ’s interpretation. Also, see David’s intercourse with strangers: and Solomon’s.

5 Besides the exception of the Peoples of Canaan, the Ammonites and Moabites also are excepted. Beneficial leagues with them are forbidden, but war is not authorized. See the passages.

6 See also the example of Abraham and his league with the king of Sodom. And the Maccabees made leagues with Greeks and Romans.

7 If any kings or peoples were condemned to destruction by God, doubtless it was then unlawful to protect them or to join with them. So 2 Chron. xix. 2, Jehu the prophet says to Jehoshaphat, Shouldest thou help the ungodly, &c.? So 2 Chron. xxv. 7 to Amaziah. But this was on account of personal considerations, not the nature of the treaty, as appears by the circumstances: [which see.]

8 Observe that the case was worse with the Ten Tribes, who, though descended from Jacob, had deserted God, than with others.

9 Sometimes also treaties are condemned on account of the bad motive from which they proceeded. Thus, 2 Chron. xvi. 2, Asa’s league with the Syrians. So other kings sinned. And trust in Egypt is condemned; but Solomon made a league with Egypt.

10 Moreover the Hebrews had a promise of success if they obeyed the law, and so, did not need human aid. Solomon’s precepts in the Proverbs about shunning the fellowship of the wicked belong to private prudence, not to public policy, and admit of many exceptions.

X. 1 The Gospel changed nothing in this matter: it rather favours conventions with all men that we may do them good: as God makes his sun to rise on the just and on the unjust. So Tertullian.

2 Which must be taken with a difference, that we are to do good 188to all, but specially to those who are our partakers in religion. See the Clementine Constitutions, Ambrose, Aristotle.

3 Familiar intercourse is not forbidden with strangers to Religion, nor even those who have gone back from religion; but only unnecessary familiarity. St Paul’s warnings, 2 Cor. vi. 14, &c. refer to idolatry, as appears by what follows, and by 1 Cor. x. 21.

4 Nor does the proof follow, [that we are not to make treaties with them,] because we are not willingly to come under the authority of the impious, or to contract marriage with them. For such steps produce much more danger to religion, and are more permanent, and more free; while treaties depend on occasion of time and place. And as we may benefit the profane, so we may ask their help, as Paul claimed the help of Cæsar and of the chief Centurion.

XI. 1 Hence in an alliance with those of a false religion, there is no inherent or universal pravity: the case is to be judged by the circumstances. But care is to be had that too much mixture with them do not taint the weak. For which purpose, separate habitation is good, like that of the Israelites in Egypt. So Anaxandrides. And to this pertains what we have said of Jews and Christians serving as soldiers with heathens.

2 But if the strength of the profane is likely thus to be much increased, we must abstain from such alliances, except in case of necessity: such as Thucydides speaks of. [See.] For it is not mere right which justifies men in doing what may indirectly harm religion. We must seek first the kingdom of God, that is, the propagation of the Gospel.

3 It were to be wished that many princes and peoples would lay to heart that liberal and pious saying of Fulk, Archbishop of Rheims, who thus admonished Charles the Simple: Who is not alarmed when you seek the friendship of the enemies of God; and invite the co-operation and the arms of pagans for the calamity and ruin of the Christian name? It makes no difference whether any one joins himself with pagans, or denies God and worships idols. There is in Arrian a saying of Alexander, that Those grievously offend who enter the service of Barbarians to fight against Greeks and Grecian rights.

XII. Add that all Christians are members of one body; are commanded to bear each other’s sufferings and sorrows: and as this applies to individuals, so does it to peoples, as peoples, and to kings, as kings. Each must serve Christ according to the power given him. But this they cannot do, when the infidel is powerful, except they help each other: and this cannot well be done except a general league be made with that view. Such a league has been made, and the head of it created by common consent Roman Emperor^*. Therefore all Christians ought to aid in this cause according to their power with men or money: nor do I see how they can be excused, 189except they be detained at home by an inevitable war or some similar evil.

XIII. 1 The question often arises, if several parties carry on a war, to which of two in preference ought he to give assistance who is under agreement with both. This is first to be understood, as we have said above, that no one is bound to unjust wars. Therefore that one of the allies who has a just cause is to be preferred, if the transaction is with a stranger: and also if it be with another of the allies. Thus Demosthenes, in the oration concerning Megalopolis, shews that the Athenians ought to assist the Messenians, who are their allies, against the Lacedæmonians, who are also their allies, if the wrong be on the side of the latter. In the treaty of Hannibal with the Macedonians, it stood, We will be the enemies of your enemies, except the kings, states and ports with which we are in league and friendship.

2 If two allies quarrel, being both in the wrong, which may happen, we are to take part on neither side. So Aristides.

3 But if two allies make war on others for just cause, if we can send aid to both, soldiers or money for example, we are to do so; as we are to pay several personal creditors. But if our individual presence, as having promised, be required, reason require that he be preferred with whom the league is oldest: so the answer of the consul to the Campanians.

4 But an exception is to be added, if the later league contain, besides a promise, anything which contains a transfer of ownership, or a subjection to the other party. For thus in selling also, we say that the prior sale is valid, except the later sale transfer the ownership. So in Livy the Nepesini held their surrender more binding than their alliance. Others make more subtle distinctions, but I believe this, as most simple, to be also most true.

XIV. When the time is ended, the treaty ought not to be tacitly supposed renewed, except by acts which receive no other interpretation: for a new obligation is not lightly presumed.

XV. If one party violate the league, the other may withdraw from the agreement: for every article of the agreement has the force of a condition. Take two examples from Thucydides. [See.] But this is only true if it be not otherwise agreed, as is sometimes done; that a withdrawal from the league is not to be justified by every slight offense taken.

XVI. 1 Sponsions, that is, conventions made on personal responsibility (see c. III.) may be as various in their subject-matter as public treaties. They differ in the power of those who make them. But there are two common questions concerning such conventions: First, if the convention be rejected by the king or the state, to what are the responsible parties bound? To give an equivalent; or to restore things into the state in which they were before the convention; or to give up their persons? The first course appears to be conformable to 190the Roman Civil Law; the second, to equity, as was urged by the Tri- bunes in the Caudine controversy; the third, to usage, as the conspicuous examples of the Caudine and the Numantian conventions shew^*.

But the important point is, that the supreme authority is not bound to any one course. As Posthumius says: You (the people) have made no convention with the enemy; you have not authorized any citizen to make a convention for you: you have nothing to do with us, to whom you gave no commission, nor with the Samnites, with whom you have had no transaction. He adds well: I deny that without the permission of the people, any engagement can be made which binds the people: and, also well: If the people can be bound to anything [by the acts of others] it may be bound to all things.

2 Therefore the People was not bound either to compensation or to restitution. If the Samnites wished to deal with the People, they ought to have kept the army at the Caudine Forks, and to have sent ambassadors to Rome, to treat with the Senate and People concerning peace, leaving them to estimate the safety of the army at what value they might. And then they might have said, what Velleius reports that they and the Numantines said, that the violation of public faith ought not to be deemed expiated by the blood of an individual.

3 With greater speciousness it might be said, that all the soldiers were bound by the treaty. And that would have been equitable, if the treaty had been negociated in their name, and under their direction, by the acting parties, as was done in the treaty of Hannibal with the Macedonians. But if the Samnites were content with the engagement of the persons negociating, and of the 600 hostages whom they demanded, they had themselves to blame. On the other hand, if the negociators pretended that they had the power of making a convention in the name of the public, they were bound to restitution, as having done damage by fraud. If that does not appear, they were bound to a reasonable compensation to the Samnites, according to the purport of the negociations. And in this case, not only the bodies, but also the goods of the negociators, were bound to the Samnites, except they had paid such a compensation as we have spoken of. For, with regard to the hostages, it was agreed that if the engagement did not stand, their lives were to be forfeited. Whether the same penalty was agreed upon for the negociators, does not appear. But the stipulation of a penalty affects what is done, in this way: that if the thing to be done cannot be performed, there is nothing else in the obligation [but the penalty]: for the penalty is introduced as something certain into the place of an uncertain compensation. And at that time the common opinion was, that a man’s life might be seriously given as a pledge.

4 But with us who think differently, I am of opinion that by such 191a convention, first, the party’s goods are liable for compensation of the interest affected, and if they are not sufficient, that his body is forfeited to slavery. When Fabius Maximus had made an agreement with the enemy, which the Senate repudiated, he sold his landed property for 200,000 sesterces, and made good the loss. And the Samnites rightly conceived that Brutulus Papius, who broke a truce, should be given up along with his property.

XVII. 1 Another question is, whether a convention made by a subordinate person, on his own responsibility, binds the supreme power, by knowledge and silence on their part. Hero we must first distinguish whether the convention is made simply, or under condition of being ratified by the supreme power. For if so, this condition, not fulfilled, (for conditions must be expressly fulfilled,) nullifies the convention; which applies to the convention of Lutatius with the Carthaginians; to which was to be added, that the people, because that convention was made without its authority, denied that it was bound thereby: and therefore another treaty was made on a fresh footing by the public authority.

2 We must next see whether, besides silence, any other circumstance has been added. For silence, without some thing or act, does not supply a sufficiently probable conjecture of the will; as may be understood by what we have said above, of the dereliction of ownership. But if any act have been added which cannot be probably referred to another cause, then the act of convention is rightly understood to be accepted as valid. And so the convention with the Gaditani was proved valid, as Cicero notes.

3 The Romans urged silence against the Carthaginians in reference to the convention made with Asdrubal. But since that convention was conceived in negative expressions—that the Carthaginians should not pass the Ebro—it was scarcely a case in which silence alone could establish a ratification of the act of another: since no act of theirs had followed, except it might be that some Carthaginians, wishing to pass the Ebro, had been prevented by the Romans, and the Carthaginians had acquiesced: for such an act has the force of a positive act, and is not merely negative. But if the pact of Lutatius had had more parts, and it appeared that the other parts, though dissenting from common rule, had been observed by the Romans, then there would be a sufficient proof of the confirmation of the convention.

4 It remains for us to treat of the conventions which generals and commanders of armies make, not concerning political matters, but their own proceedings and business: but we shall have a better opportunity of discussing this in treating of the rules of War.