Tully's three books of offices, in English with notes explaining the method and meaning of the author.

CHAP. X.

Justice is alter'd upon an Alteration of Circumstances; and what was our Duty in one Case to do, in o∣ther Circumstances 'tis our Duty to avoid. Promi∣ses are not to be stood to in several Cases, as, If they are Prejudicial: If made thro' Fear, &c. A close adhering to the words of a Law, or Bargain, is a means of being Unjust; Craft in such cases to be diligently avoided.

BUt here 'tis observable, a 1.1 That the Limits of Justice are not so fixt, but that they may be alter'd upon an alteration of the Circumstances; so that what at one time appears to be the Duty of an honest and good Man, at another is alter'd and becomes the quite contrary: To deliver up a Trust, for example, or perform a Promise, and other things relating to Truth and Faithfulness, are Duties which Justice it self will allow us, in several Cases, to b 1.2 neglect or omit: For respect must be had to those general Rules we before laid down, as the Ground and Foundation of all Justice, First, That no Injury be done to any other. And, Secondly,

That we make it our earnest Endeavour to pro∣mote the Good and Interest of all Mankind: So that our Duty is not always the same, but vari∣ous c 1.3 according to the variety of Circumstances. There may be a Contract or Promise, for instance, the performance of which would bring very great Damage, either to the Person himself that made it, or the other Party whom it was made to. Thus, had d 1.4 Naptune not granted what he promis'd to The∣seus, Theseus had not suffered the loss of his Son Hip∣polytus. For (as the Story goes) Neptune having grant∣ed him any three Wishes, for the third, he once in a very great passion, desired the Death of his own Son; by obtaining of which, he was afterwards brought into the greatest Afflictions. Such Promises therefore are e 1.5 not to be kept, as will but bring a Mischief on him they were made to; f 1.6 no more are those, which tend to the Damage of the Promiser himself, more than to the Profit of him they were

promis'd to. Again, g 1.7 even Justice it self requires us to perform a greater before a lesser Duty: You promise, for example, a Friend of yours, to assist him in a Cause that he has depending, but your Son grows dangerously sick in the mean time; here 'twould be no h 1.8 breach of Duty in you, if you should not make good what you promis'd to your Friend; and he himself rather would be much to blame, should he complain of being disappointed by you. Further, i 1.9 'tis plain to any one's Sence, that such sort of Promises can never be binding, as are made by People over-aw'd by Fear, or over∣reach'd by Deceit; most of which are void by the k 1.10 Praetor's Edicts, and some of 'em even by the Laws themselves. But another great Spring from which Injuries arise, is some Quirk or Cavil, and an over-subtle and malicious Interpretation of the Laws; from whence that Saying, Summum jus sum∣ma Injuria, The height of Justice is the height of Ro∣guery,

is now become a daily and common Pro∣verb among us. There are frequent Examples of this to be met with in our Publick Transactions; as that of Him, for Example, who concluding a Truce with the Enemy for thirty Days, made continual Incursions into their Territory by Night; because, forsooth, the Truce was not made for so many Nights, but only so many Days. Just such a craf∣ty and pittiful Trick (if the Story be true) was that notable Cunning of Quintus Fabius Labeo's; (or whoever the Man was, for I have it only by hear-say) who being by the Senate appointed Ar∣bitrator, in a Difference between those of l 1.11 Nola and Naples about their Bounds; when he came to the place that was appointed for the Treaty, took aside the Commissioners of either Party, and exhor∣ted 'em privately, Not to be too eager and greedy in their Demands, but rather to take up and content 'emselves with less, than pretend to any more than what was honestly their Due. Both Parties did so according to his desire, so that a good quantity of Ground was left between them; this he e'en goes and adjudges to the Romans, leaving that to each Party, which they 'emselves had demanded. And is not this now to Deceive and Cheat, rather than to Judge? In all cases therefore such subtle kind of Tricks should be diligently avoided.

Notes

• a 1.1

  Having given an account of the Nature of Justice, and Injustice, with the Causes of this; he proceeds to shew, How, in several Cases, that which is usually a part of Ju∣stice, upon an alteration of Circumstances, becomes the con∣trary. For as a thing may be pleasing to the Palate, or healthful to the Body in some Circumstances, which is not so absolutely; as a Cup of bad Water to one in extream Thirst: So may an Action, which generally speaking is vi∣cious and unreasonable; as the breaking of one's Promise, or the like; in some certain Cases become honest, and agreea∣ble to Right Reason.
• b 1.2

  The Word migrate signifies transitively here, as in some other places of this Author: So migrare communia jura sig∣nifies to transgress or violate 'em.
• c 1.3

  By ea tempora, I suppose, he means those Cases or Cir∣cumstances; for so he often uses the Word in this Work. He had just been saying, That nothing must be done contrary to the two great Rules of Justice before given: And then he adds, Ea cum tempor'd commutantur, that is, When the Case is such, as that the keeping one's Promise, or the like, would be acting contrary to one of those Rules, (that is, would be a great Injury to him that made it, or him to whom it was made, as he explains himself afterwards;) then our Duty is alter'd, and we are bound not to keep it; because, if we should, 'twould be a Breach of the fundamental Rule of that Virtue. This is the first Case, wherein a Man is not o∣blig'd to be as good as his Promise.
• d 1.4

  See chap. 25. Book 3.
• e 1.5

  Because the keeping of 'em would be an Offence against the first Rule of Justice, Not to do any Wrong: and if may be suppos'd the Person, to whom they were made, had he seen such a Mischief ensuing, would not have demanded it. See chap. 24, 25. Book 3.
• f 1.6

  Because 'tis presum'd the Person, who made such a Pro∣mise, had he thought of such a Damage likely to come of it, would not have made it. We promise as Men, who aren't infallible, and can't provide against every thing that may happen; wherefore we are suppos'd not to promise any fur∣ther, than what we now know; and should any extraordi∣nary thing happen in the mean time, 'tis to be taken as a thing, which we tacitly excepted. But here we must pro∣ceed very warily and cautiously: this will hardly hold good in the case of a Promissory Oath, where God himself is call'd to witness. See Grot. de Jure B. & P. Puffendorf, &c. upon this whole Subject.
• g 1.7

  Another Case wherein a Man is dispenc'd from keeping his Promise, is, when some greater Duty requires his Atten∣dance in the mean time.
• h 1.8

  Because to take care of a Son's Life, is a greater Duty, than to assist a Friend; and therefore ought to take place before it.
• i 1.9

  Another Case wherein a Man is not oblig'd to perform his Promise, is, when he was forc'd to make it thro' Fear, or drawn to it by some Deceit. See the forecited Authors.
• k 1.10

  The Laws being deliver'd only in general Terms, and not being able to descend to all particular Cases, 'twas in the power of the Praetor, or Judge, to supply that Defect by his Edicts and Authority.
• l 1.11

  Two Cities in Italy, about fourteen Miles distant from one another.