The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

CHAP. XVI. Concerning the True meaning, and Interpretation of Leagues and Promises.

• I. How Promises do outwardly bind.
• II. The words to be understood, as vulgarly taken, unless strong Conjectures lead us otherwise.
• III. Words of Art, according to Art.
• IV. Conjectures useful, where the words are either ambiguous, or seem to be repugnant, or offer themselves freely: as.
• V. From the Subject matter of the Promise.
• VI. From the effect.
• VII. From things conjoyned; either in be∣ginning, or in place also.
• VIII. Whereunto appertains that conjecture, that is drawn from the reason moving, and when and how that takes place.
• IX. Of the large and strict signification of words.
• X. The distinction of Promises, into favora∣ble, burthensome, and mixt or middle.
• XI. Concerning the acts of Kings, or people; the difference of those Contracts, which oblige in equity, and of those that oblige in strictness of Law, rejected.
• XII. Out of these distinctions, some rules are formed that will guide us in our interpreta∣tions of Promises and Contracts.
• XIII. Whether under the name of Associates, those in present or those also in future, be comprehended, and how far.
• XIV. How these words are to be understood, that one party shall not make War without the approbation of the other.
• XV. Concerning these words, that Carthage shall be free.
• XVI. What Contracts are to be accounted per∣sonall, and what real, explained by distin∣ction.
• XVII. A League made with a King is in force, though that King be expelled his Kingdom.
• XVIII. But not, as to him that usurpeth the Kingdom.
• XIX. A Promise made to him that shall first do a thing, if that thing be done by many at once, to whom is it due.
• XX. A Conjecture freely offering it self, may either be extended, and in what cases;
• XXI. Concerning the fulfilling of a com∣mand not directly in kind, but in another kind, as good, or better;
• XXII. Or Contracted; and that either from some Original defect in the Will, which also may be collected, either from the absurdity that will ensue:
• XXIII. Or when that which was the sole cause exciting the will shall cease:
• XXIV. Or from the defect of the mat∣ter:
• XXV. (Observations upon the aforesaid con∣jectures.)
• XXVI. Or from the repugnancy of some emergent case with the Will, which may be collected, either as being unlawful;
• XXVII. Or when by reason of that act some great damage or charge ariseth to him that promiseth;
• XXVIII. Or by some other signs, as when the parts of the writing do clash one against the other.
• XXIX. By what rules then we are to steer our conjectures.
• XXX. That in a dubious case, a writing is not necessary to perfect a Contract.
• XXXI. That the Contracts of Kings are not to be interpreted by the Roman Laws.
• XXXII. Whose words are most to be observed, his that offers a condition, or his that ac∣cepts of it, explained by a distinction.

I. How Pro∣mises bind externally

IF we respect the person alone that promiseth, he is obliged to perform that freely, whereunto he was willing to be bound. What Cicero saith in this case is true* 1.1, In fide quid senseris, non quid dixeris cogitandum; In things depending upon faith, what thou meanest is more to be considered, than what thou saiest. But because our inward thoughts are not discernible, and that there would be no obligation at all by Pro∣mises, were every man left at liberty, to frame what interpretation he pleased of them, therefore some certain Rule must be agreed upon, whereby we may know to what our Promises do bind us; and surely natural reason will inform us, That he to whom any thing is promised, hath a power to enforce the Promiser to that which his Promise rightly in∣terpreted, doth suggest. For otherwise, no treaty would have an end, which in things ap∣pertaining to Morality is held impossible. And perhaps in this it was ••hat Isocrates treat∣ing of agreements in his prescription against Calimachus saith, We men do all of us, whe∣ther Greeks or Barbarians, dispatch affairs, using this common rule: hence it was that in an∣cient Leagues, this form was usual, saith Livy, Without any evil fraud, according to the usual sence and true meaning of the words here at this time. Thus do the Hebrew

Doctors upon the 30. of Numbers interpret Vows in that sence, as the words are com∣monly then understood. The best rule of interpretation is that which guesseth at the will, by the most probable signs. Now these signs are of two sorts, as words and other conje∣ctures: and these considered sometimes a part, and sometimes conjoyned.

II. According to the sense of the words, if other conje∣ctures do not hinder.

If there be no conjecture that guides us otherwise, the words are to be understood according to their propriety; not that which is Grammatical or Primitive, but that which is vulgar and most in use,

Quem penes arbitrium est & jus & norma loquendi;

Which giv•• at pleasure, Rules and Laws to speech.

It was very well said by Procopius,* 1.2 Long time doth not alway preserve words in the same signification as they were at first given. For the very things them∣selves are turned in sense according to mens pleasure, without regard to those names that were originally imposed on them. It was but a simple refuge that the Locri∣ans made use of against Perjury, when having put some of their enemies earth into their Shooes, and carrying some heads of Garlick covertly on their shoulders they sware, they would keep the Articles of the League (which were very grievous) so long as they carried those heads on their Shoulders, and trod upon that earth: But having cast away the earth out of their shooes, and thrown away those heads of Garlick from their Shoulders, they thought themselves absolved from their Oaths; which story we find in Polybius: not much unlike is that of the Boeotians in Thucydides,* 1.3 Who having promised to restore a certain City, thought it sufficient to preserve their faith, if they restored it not standing, but demolisht. So Sultan Mahomet, having taken Euboea, cut the Gover∣nours body asunder, whose head he had promised to preserve. But (as Cicero well ob∣serves) this is not a way to prevent Perjury, but to confirm it.

III. Words of Art according to Art.

* 1.4If in a League, there be an occasion to make use of Terms of Art, which the people understand not, those terms are to be defined and explain'd by the most skilfull in that Art, as what Majesty is, what Parricide, &c. wherewith Rhetoricians use to limit the matter treated of. For what Cicero saith is very true, That the terms of Logick are not vulgar, but pro∣per to themselves only, as indeed are the terms of every art. As when the word Army is used, it is to be understood of such a number of Souldiers, as dare openly invade anothers Domini∣ons. For Historians do distinguish between those that make spoil of anothers Territories, secretly and like Robbers, and those that do it openly, with a just Army. Now the best way to judge what numbers make an Army, is by the strength of him against whom it is sent out. In Cicero's account Six Legions with Auxiliaries was an Army. Polybius was of opinion, that One hundred and sixty thousand Romans, and Twenty thousand of their Associates, made a compleat Army; but a lesser nember may also sometimes do it. Ʋlpian gives him the title of General that had the charge of a Roman Legion, with some Auxiliaries: Which as Vegetius expounds it, consisted of Ten thousand Foot and Two thousand Horse. Livy seems to contract an Army to Eight thousand. The like may be said of a Fleet, which a certain number of men of War make up sometimes more, sometimes less. A Fort is a place so fortified that it may hold out against an Army for a time; Arx from arceo to repel or drive away, because by forts the enemy is restrained and driven back.

IV. Interpretati∣on by conje∣ctures.

Conjectures are useful when words or sentences will admit of diverse fences, which Rhetoricians term Amphibologies; but Logicians do more subtilly distinguish, for if one word will admit of diverse significations, they call it an Homonymy; if a sentence will admit of a double sence, they term it an Amphiboly. So likewise when in any Con∣trcts, therer appears any seeming repugnancy. Then must we fly to conjectures; as also where its several parts seem to clash one against the other, we must by guessing at the sence, reconcile them if possibly we can; but if not, then shall that be admitted which pleased the Contracters last: Because it is not possible that at one and the same time, the will should imbrace two contraries, and in things that depend upon the will, the latter act derogates from the former, whether it be the act of one Party only, as in a Law, or a Testament; or of more, as in Contracts or agreements: in which cases, the evident obscurity of the words and sentences do justifie our conjectures. Sometimes again the conjectures themselves are so plain and evident, that they carry us to a sence contrary to those of the words. The common heads whence these conjectures arise are chiefly, either from the matter, or from the effect, or from other things con∣joyned.

V. From the matter.

First from the matter: as the word Day (if a truce be made for Thirty days) ought to be understood of natural days, but not of Civil, being most agreeable to the sub∣ject matter. So the word donare (i. e.) to give freely is taken to transact according

to the quality of the affairs. The word, Arms, sometimes signifying instruments of War, and sometimes armed Souldiers, is to be understood in such a sence, as is most congruous to the matter whereunto it is conjoyned. So when men are promised to be delivered, it is to be understood of living men, not of dead, contrary to the Cavil of the Plataeans. So where Souldiers are required to lay down their Iron or Steel, it is enough if they lay down their weapons, and not their Steel Buttons, as Pericle•• would have it. And by a free departure out of a City, is meant a safe conduct to the place agreed on, contrary to that fact of Alexander. And by leaving half a Fleet, is meant the one half of the number of Ships whole, not dissected, contrary to what the Ro∣mans dealt with Antiochus. The same judgement may pass upon the like cases.

VI. From the ef∣fect;

Then from the effect, the chiefest whereof is this, If the word taken in the most usu∣al sence do infer an effect contrary to reason; then may we fly to conjectures. For where the word is ambiguous we must take it in such a sence, as will admit of no incongruity. It was therefore but a foolish Cavil of Brasidas, who having promised to depart with his Army out of the fields of the Boeotians, denyed afterwards that the place where his Camp was pitcht, belonged to the Boeotians; as if that promise had been made, in reference to the possession which the present fortune of the War had given him, and not to the ancient bounds of the Boeotians: in which sense the agreement had been void.

VII. Or from o∣ther things conjoyned arising from the same will.

Lastly, from other things conjoyned; and those either such as sprang from the same root (i. e.) from the same evil, though haply in some other place, or upon other occa∣sion declared, whereupon we ground our conjectures. For it is to be presumed that in a case that is dubious, the will doth constantly adhere to one sence. As in Homer where it is said it was agreed between Menelaus and Paris that Helen should be his that should be the Victor; it was afterwards judged who should be the Victor, namely he that killed the other.* 1.5 For, saith Plutarch, Judges are guided by that which is plain, and not by that which is obscure.* 1.6 It was an excellent observation of Augustine concerning some Hereticks, That they cull'd out some sentences of Scripture, whereby they deluded the simple by their not observing the Coherence of it, to that which went before, and that which followed after, whereby the meaning of the Writer was to have been discovered.

VIII. And in the same place.

Or from such things as are also conjoyned in the same place, amongst which the most forceable is the reason of a Law, which some confound with the mind of the Law, whereas it is but one of those signs, whereby we guess at the mind of the Law. So Cicero in his Oration for Caecina, Whether I am thrown out of my possession by your lawful Attorney in your absence, or by your Tenant, Farmer, or Servant, who forceth me out in your name, and by your command, it makes a difference; for reason of the Law holds in any of these cases. Now of all conjectures this is the strongest, when it evi∣dently appears, That the Will was excited to such a thing, by some one reason, as its solitary cause, for oft-times there may be many considerations moving us to do a thing: And sometimes besides reason, the Will to shew its freedom determines it self, and this alone is sufficient to beget an Obligation. Thus things given in reference to a Marriage, alter not their property, in case the Marriage succeed not.

IX. By a strict or large signifi∣cation of words.

Moreover, many words will admit of divers significations, as being taken sometime strictly, sometimes largely; which proceeds from many reasons, either because the name of the Genus doth adhere to one of the species, as in those words of Cognation and Adop∣tion; and in words of the Masculine gender, which are taken for the Common, where the Common is wanting; or because words of Art are more extensive, than those that are vulgar: As Death in the Civil extends to banishment, but in the vulgar acception implies only a separation of the soul from the body.

X. Of Promises, some are favo∣rable, some grievous, and some mixt.

It is also to be observed, That of those things that are promised in any League, some are friendly and favourable, as those that are on both parts equal, and to both profita∣ble, which the farther it extends, the greater is the favour in the Promise; as in those that belong to Peace, the favour is greater than in those that belong to War; and in War, those that respect defence are more favourably to be interpreted, than those that are made for other causes. Some also are odious, as those that are impo∣sed on one Party only, or which are more burthensome to one Party than to the other; and those that are imposed by way of punishment, or which make some acts void, or alter what hath been agreed on formerly. But in case any are mixt, as those which do alter somewhat formerly agreed for the setling of Peace, that according to the greatness of the good, or of the alteration shall be judged either favourable or odious; yet so as if other things are equal, those made in favour shall be preferred before others.

XI. As to the acts of Kings or people, the distinction between Contracts due in equity and strict Law, rejected.

The difference of acts due in equity and those due in strictness of Law, if we mean only the Roman Law, appertains not to the Law of Nations: Yet may it in some sence be better applied, as namely, If in any Regions there be some acts which have one certain

common form, that form so far forth, as it is not changed may be understood to be in the very act. But in other acts, by themselves, indefinite, such as are a free Donative, or a free Promise, we should more adhere to the very words.

XII. By these rules we may frame Interpretati∣ons of words and promises.

These distinctions being thus observed, we are to guide our conjectures by these rules, in things not odious, the words are to be understood in their full propriety as they are vulgarly taken; and in case there be any Ambiguity in them, then are they to be taken in the largest sence: As when the Masculine only is exprest, both Sexes are to be under∣stood; and where things are mentioned indifferently, they shall be understood universal∣ly. So these words unde quis dejectus est; From whence one is thrust out,* 1.7 shall be understood so as to imply the restoring him to the possession of that which hath been forceably de∣tained from him: For the words in their largest signification will admit of this constru∣ction, as Cicero pleads in his Oration against Caecina. But in such as are yet more fa∣vourable, if he that promiseth any thing be verst in the Law, or use the advice of Law∣yers, the words shall then be yet more largely understood, so as to include the signification of Art, or that sense which the Law hath given it. But to have recourse to such Interpreta∣tions as are plainly improper, we ought not, unless it be where some absurdity would other∣wise ensue, or when somewhat would render the Agreement unprofitable. On the contrary, if necessity shall so require, to avoid either some manifest injustice, or some as evident absurdity, we may not interpret the words more strictly than their Propriety will bear. And though there be no such necessity, yet if there appear either manifest equity, or very great utility in the restriction, we are to confine our selves within the strictest bounds of Propriety, unless other circumstances forbid it. But in such as are odious, that the burthen may be moderated, even Figurative Speeches are sometimes ad∣mitted: And therefore in voluntary grants, and in the remission of that which is a mans Right, though the words be general, yet are they to be restrained unto those things, to which in probability they were intended. And amongst things of this kind, that is some∣times understood to be possest, which we have hopes may be recovered. So succours promised by one party only, are presumed to be raised at the charge of that party that requires them.

XIII. Under the name of As∣sociates, whe∣ther those at present only be compre∣hended.

But here a notable Question is sometimes started, Whether by Friends mentioned in a League, we are to understand those only who are so at the League making, or those also which shall afterwards be admitted. In that League made between the Romans and the Carthaginians after the Sicilan War, it was Covenanted thus, Ʋtriusque populi socii ab utroque populo tuti sunto; That the Friends of either party should not be molested by either party. Hence the Romans would infer, That though the League made with Asdrubal, of not pas∣sing the River Iberas, did nothing avail them, because the Carthaginians refused to sign it; yet in case the Carthaginians should own that fact of Hannibal's in besieging the Sa∣guntines, who had been admitted into League with the Romans, though after the said League with the Carthaginians, they might justly denounce War against them, as ha∣ving first broken the League. Livy thought the Saguntines well enough provided for,* 1.8 in that the Allies on either side were excepted. For neither was this clause added, They that were at that time Friends, nor were they excluded that should afterwards be admitted, (Which was added in the Peloponnesian League, between the Lacedaemonians and the Athenians). And seeing that it was lawful for them to admit of new Confederates, who could conclude it reasonable, either that no Nation should be received upon any merit whatsoever; or that being admitted, they should not accordingly be defended. Provided always, That none of the Allies of the Carthaginians should be either sollicited to revolt, or received into Protection, in case they voluntarily did so. Which are the very words almost of Polybius, and from him by Livy borrowed.* 1.9 There is no question at all, but that the words of the League might admit of either, (i. e.) either to restrain them to those then in League only, or to enlarge them to those who should hereafter be received, and that without any incongruity of speech. But the best interpre∣tation may easily be guessed at by the precedent rules: According to which we say, That they who were to be admitted were not comprehended; for the matter in Treaty now is of the breaking of a League, which is Res odiosa; A thing in it self odious.* 1.10 And Secondly, It concerns the abridging of the Carthaginians of their liberty, in taking a just revenge upon those who had injured them) which by the Law of Nature was their due, and so not rashly to be understood as given away. What then shall we hence conclude, That the Romans might not admit of the Saguntines as their Friends; or being so admitted, might not defend them? Yea, certainly they might, but not by vertue of the League, but by the Law of Nature, which that League had not abrogated: So that the Saguntines were at that time both to the Romans and to the Carthaginians in such a state, as if in that League there had been no mention at all made of Friends: In which case, both the Carthaginians might revenge the injuries done them, and the Ro∣mans might also justly defend them, without breaking their League one with the other. Thus the Romans answered the Samnites, who desiring that they might have liberty to

make War upon the Sidicines without offence to them, That they knew nothing to the contrary, but that the Samnites had power to make Peace or War upon whom they pleased. And in the League made with Antiochus, It was provided, That if any of the Allies of the Romans should make War against Antiochus, it might be lawful for him by force to repel them: So as he held not any of their Cities from them by the Right of War, nor contracted any Alliance with them.* 1.11 In the time of King Pyrrhus it was thus covenanted in a League between the Romans and the Carthaginians, That in case either of the two Cities should make Peace with Pyrrhus, it should be with a reservation of Liberty to send succours unto that City against which Pyrrhus should at any time make War. I do not say that the War on both sides in these cases could be just: But I deny that if either party did send succours unto the other, they did therein violate the League made between them: As Polybius rightly distinguisheth concerning the succour sent to the Mamertines,* 1.12 Whether it were just, and whether it were lawful so to do, without violating the League. Thus doth Alamandaras King of the Saracens plead for himself, That none of the Articles of the Agreement made between the Romans and the Persians had been by him violated, for as much as he was not so much as named in them by either party.* 1.13 Thus also did the Corcyrians tell the Athenians, That notwithstanding their League made with the Lacedaemonians, they might send them succours, because it was in their own power notwithstanding that League, to admit of any new Friends at their own pleasure. And the Athenians did afterwards assume this Liberty, commanding their Generals not to make War against the Corinthians, unless they saw the Corinthians ready to invade the Corcyrians in any of their Territories, lest they should seem to break their League with the Corinthians. For, it is no breach of a League, that they who are injured by others, should by others be defended, so long as the Peace in other things is preserved. And so after these times the Corcyrians decreed, That they would assist with their Arms the Athenians their Allies, according to their Covenants, and yet pre∣serve the Rights of Friendship with the Lacedaemonians. Justin writing of those very times, saith, That the Athenians broke that Truce in the name of their Allies the Corcyrians, which they made in their own name with the Corinthians, thinking it a lesser Perjury to help their Friends being invaded, than to engage against the Corinthians in a Solemn War. So the Athenians making a Peace with King Philip, did expresly provide that those Grecian Cities that were not comprehended in that Peace might remain free: And if any man did molest them, it might be lawful for those that were included in that Peace to defend them. And let this example suffice for equal Leagues.

XIV. What is meant by this clause, That one party shall not make War without the consent of the other.

In such Leagues as are unequal we shall give another: If it be agreed that one of the Confederates shall not make War without the others Consent; as it was in that be∣tween the Romans and the Carthaginians after the second Punick War; and as it was also in the League between the Romans and the Macedonians, before the reign of King Perse∣us: Since under the notion of making War, all Wars may be comprehended, as well that which is Defensive as that which is Offensive. The word is to be taken in its strictest signi∣fication, lest the liberty of defending our selves, being Natural, should be too much straitened.

XV. That Carthage should be free, how meant.

Of the same kind is that which the Romans promised, namely, That Carthage should be free; which though it could not reasonably be understood of Absolute Power, from the very Act, for they had long before lost the Right of making War, and diverse other priviledges, yet was it to be presumed, That some kind of Liberty should be lest them, and so much, at least, that they should not be obliged to translate the Seat of their dwelling into a Foreign Countrey, and to have their own City demolished. It was therefore a foul gloss which the Romans did afterwards put upon that Promise, when they urged, That by Carthage they meant the multitude of their Citizens, and not their City, (which, though improper, may be granted, because of that attribute, Free, which is more agreeable to their Citizens than to their Town). For, in th••se words, Carthage shall be left free, was meant that it should be governed by its own Laws. And as Diodorus Siculus expounds it, That they should enjoy their own Laws and Territo∣ries, their own Religious Rites, their own Sepulchres, and their own Liberties. For so much was granted in leaving them free. So that what the Romans objected was a meer ca∣vil, in making them free, yet taking their City from them.

XVI. What Argu∣ments are Real, and what Perso∣nal.

Another Question likewise doth usually arise concerning Contracts real and personal. When we have to do with a free people, there is no question, but that the Contract that is made with them, is in its own nature real, because the subject is a thing per∣manent. Yea, though that popular State should turn into a Monarchy, yet would the League hold, because the body of the people is still the same, though the head be chan∣ged; neither doth the Supreme Power cease to be the power of the People, because exercised by the King: where we must except this case, namely, where it appears, that the cause was proper to that State only, as when Free Cities enter into a Social League for defence of their own Liberties. But if a League be contracted with a

King, it is not instantly to be accounted Personal: Because, as Ʋlpian well observes, for the most part the person is inserted in the League: Not that the League is personal, but that it may appear by whom that League was made. But if it be inserted in the League, That it should stand for ever; or that it is so made for the general good of the kingdom; or that it is made with him and his Successors: (For this addition 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 is usual, saith Libanius, in his defence of Demosthenes:) Or to continue for such a limited time, (as mostly some of these are inserted:) It will from hence sufficiently appear that the League is real. Such was the League made between the Romans, and Philip King of Macedon, which when his Son Perseus denyed to bind him, was the cause of the War ensuing. There are also other words that may serve to prove a League to be real, yea, and sometimes the matter it self may administer ground for probable conjectures. And where the conjectures are equally probable, there we may conclude, That those Leagues which are favourable and equal, shall be accounted real, those that are grievous and hateful, Personal: Leagues made for the preservation of mutual Peace or Commerce are favourable; those that are made for War are not always odious, as some hold; but if they are made for mutual defence, they draw near to such as are fa∣vourable: But those that are for a Social War do too nearly approach to those that are burthensome. Besides, in those that are made for any War, great respect is to be had to the Prudence and Justice of those with whom we contract: That they be such as will not engage us in a War, either unjustly, or too rashly, when it may be avoided. And as to that saying, That Societies are dissolved by Death, I alledge it not here; for this appertaineth to Private Societies, and is determinable by the Civil Law: And therefore whether the Fidenates, Latines, Etrusians and Sabines, did right or wrong in departing from their League upon the death of Romulus, Tullus Ancus, Priscus and Servius cannot rightly be determined by us, because the words of the League it self are not extant. The Queen of Scots being deposed by the Estates of the Realm, and imprisoned in England, and her Son an Infant solemnly Crowned: The French refused to own any but the deposed Queen, saying, That the ancient League between her and the French King was to be observed. Whereunto the English replyed, That she being deposed, and her young Son inaugurate, the French King ought by that League to defend him; for that ancient League was not contracted betwixt the persons, but betwixt the Kingdoms of France and Scotland: Which was plain by the very words of that League,* 1.14 wherein it was pro∣vided, That if the Crown of Scotland should be at any time controverted, the French King should defend him to whom the Estates of Scotland should adjudge it. Whereunto not much different is that controversie in Justin, Whether the Cities of the Medes, which had been Tributary, did change their condition with the change of their Empire. For it is to be consi∣dered, Whether in that Convention they had committed themselves to the protection of the Medes. And here we must note, that Bodine's Argument is by no means to be admitted, That the Leagues of Princes bind not their Successors, because the obliga∣tory power of an Oath dyes with him that takes it. For an Oath sometimes binds the person only, and yet may the Promise made and confirmed by that Oath, bind the Heir. Neither is it altogether true, that all Leagues are grounded upon Oaths; for usually there is power enough in the very Promise to bind, though for the more reverence, those Promises are confirmed by Oaths. Publius Valerius being Consul, the people of Rome bound themselves by Oath to assemble at the Summons of the Consul; he dying, and Lucius Quintus Cincinnatus succeeding him, the Tribunes of the people began to ca∣vil, alledging that Valerius being dead, the people were freed from that Oath. Where∣upon Livy gives his Judgement thus, That general contempt of the Gods that now rageth, had not then corrupted that age: Neither were men then so audacious, as to give unto their Oaths what Interpretation they pleased, and thereunto to adapt their Laws: But they chuse rather to compose their manners unto that, whereunto they had so religiously sworn.

XVII. A League holds with a King, though expelled his Kingdom.

Surely a League made with a King is valid, though that King or his Successor be expelled his Kingdom by his own Subjects. For though he hath lost his possession, yet doubtless the Right and Title to the Kingdom remains in him, according to that of Lucian concerning the Roman Senate:

—Non unquam perdidit Ordo Mutata sua jura loco—

Though the Imperial Seat be changed quite, Yet must the Empire still retain its right.

XVIII. But not so with an Usur∣per.

But on the other side in case a War be made against him that usurps the Kingdom, with the consent of the true King, or if it be made against him that oppresseth a free people, before he hath been established by their general and free consent, it shall not

be interpreted as a breach of any former league: Because these men, though they have got possession, yet they have no Right to what they hold. And therefore the Empe∣rour Justinian denyed that he had broken the League made between him and Gizerich, by making War against Gelimer, who had at once deprived the lawful King Ilderichus both of his Liberty and his Kingdom. Thus doth Titus Quintius also plead against Na∣bis, on the behalf of the Romans, We made no League or Confederacy with thee, but with Pelops, the just and lawful King of Sparta. Now in Leagues, these qualities of a King, a Successor, and the like, are favourably to be interpreted, as being properly their Right, whereas the cause of an Usurper is odious.

XIX. A Promise made to him that shall per∣form such an act, if more do it together, to whom is the Promise due?

Another Question we find handled of old by Chrysippus, namely, Whether a Reward promised to him that shall first arrive at such a place, is to be given to both, if both arrive together, or else to neither. Where we must observe, that the word First is ambiguous: For either it signifies one that preceeds all the rest, or one before whom, none. But because the Rewards due to vertue are to be construed with favour, both of them that shall arrive together, shall share the Reward between them: Although the Liberality of Scipio, Caesar, Julian, and others, was more honourable, who to each of them that first scaled the Walls, if more than one did it together, gave the entire Re∣ward promised. And let these suffice to be said concerning the proper and improper sig∣nification of words.

XX. A conjecture offering it self either ex∣tends the sig∣nification, and when.

There is also another way of interpreting by conjectures beyond the signification of the words wherein the Promise is contained: And this also is two-fold, either by ex∣tending them farther than the words signifie, or by restraining them. But that Inter∣pretation which restrains the signification of words is easie, but that which enlargeth them, more difficult. For as in all humane things, the want of any one cause is enough to make all the rest ineffectual: But to produce an effect, all the causes must concur; so also in this case of obligation, that conjecture that shall extend the Obligation is not rashly to be admitted: But with much more caution than in the case before mentioned, where we admit of words in their largest signification, though not much in use. For here we raise our conjectures without regard had to the words promising, which cannot intro∣duce an obligation, unless the Conjectures be very certain; for here a parity of Reason is not sufficient, unless it be the very same: Neither is the same Reason at all times sufficient; because, as I said before, Reason doth often so move us, that to shew our own freedome, our will is of it self a sufficient cause of our Promises, without any other Reason. Now to justifie such an extended conjecture beyond the words of the Promise, it is necessary that it should plainly appear, That the Reason under which that case which we would comprehend falls, was the only and most efficacious cause which moved the Promiser; and that that Reason was in its generality so considered by him, because otherwise the Promise would prove either unjust or unprofitable. As for Example, An agreement that such a place should not be surrounded with walls, being made at such a time when no other Fortifications were in use, should doubtless extend to all Muniments, though but of Earth, in case it do appear, that the only reason why Walls were prohibited, was, That that place should not be fortified. Another Example is usually brought of a man, who believing his Wife to be with Child, disposeth his Estate to such a man in case that Child should dye, which by all probable conjectures should be extended to this sense, Or if such a Child should not be born: For certain it is, That the Will of the Testator was moved with this only consideration, That then he should have no Child of his own to inherit it: This case we shall find, not among the Lawyers only,* 1.15 but in Cicero, and in Valerius Maximus. Cicero in his Oration for Caecina, pleads this case thus, What? Is this sufficiently provided for in words? No. What then was of force to do it? The Will: Which if it could be understood by silence, we should have no need of Words: But because that cannot be, therefore were words invented, but such as should not hinder the Will, but declare it. And a little after, in the same Oration, he adds, Idem jus esse, ubi perspicitur una atque eadem causa aequitatis; Where there manifestly appeared but one and the same cause of Equity, (i. e.) where there was the same solitary cause moving, It may be presumed there is also one and the same Right. Thus Philo in his Special Laws proves that it is Adultery to lye with a woman that is betrothed to another, and he adds this reason, Quia idem valent sponsalia quod Nuptiae; Because, saith he, such Espousals are equal to Marriages.* 1.16 (So likewise in the Mosaical Law, under the name of Oxen, are all gentle Beasts comprehended; so is every Pool or Pond under the name of a Well:) So like∣wise an Injunction, though it run in this form, Ʋnde me vi dejeceris hominibus coactis, arma∣tisve; Whence thou hast thrust me out by force and arms, takes place also against all manner of force that threatens our life and limbs. For that which is usually done by armed men, if by any other counsels or means we are brought into the same danger, the Law affords us the same Right and Remedy. Quintilian the Father, in one of his Declamations brings in this Example, Murther doth usually signifie the effusion of humane blood by the Sword: But if a man be killed by

any other means we have recourse to the same Law: For if a man shall fall among Thieves, or if he be thrown into a River, and there drowned, or if he be tumbled headlong from an high Pre∣cipice, his death shall be revenged by the same Law as if he had been killed by the Sword. The like Argument we find used by Isaeus, concerning the Inheritance of Pyrrhus, where be∣cause by the Laws of Athens, a Father having no Son could not make his Testament if his Daughter were unwilling; he infers, that neither had he, without her consent, the power of adopting one.

XXI. Whether a Command gi∣ven for one thing, be ful∣filled in do∣ing another as profitable, if not more:

And from hence that famous Question in Gellius may easily be answered, concerning a Command given by our Superiour, Whether it may be fulfilled, though not by the same, yet by another thing equally profitable, or haply more than that which was command∣ed. Servants, saith Quintilian, act some things more freely out of a good mind; and even our Slaves bought with our Money, do sometimes think it an Argument of their Fidelity to do otherwise than they are commanded. Which may be done, if it appear, That what was so particularly described, but only under some general consideration, which might also be otherwise obtained: But if that do not sufficiently appear,* 1.17 then we are to follow Gellius his advice in that place, For the Authority of a General would quickly be contemned, if what he commands should be disputed, and not obeyed.

XXII. Or restrained, and that ei∣ther by reason of some de∣fect in the Will:

That Interpretation that restraineth the sence from what the signification of the words, wherein the Promise is contained, will bear, is derived either from an originary defect of the Will, or from the repugnancy of some emergent case with the Will. The originary defect of the Will is understood, either from some absurdity which would otherwise evidently ensue; or from failing of the main Reason which alone did fully and effectually move the Will; or from a defect of matter. The first whereof is grounded upon this, That no man is to be believed to will things that are absurd.

XXIII. Or when the main Reason ceaseth:

The Second is grounded on this, That what is contained in the Promise whereunto such a Reason is added, or where it is plainly understood, is not considered barely or sim∣ply, but as it falls under that Reason.

XXIV. Or when there is a de∣fect in the matter:

The Third is grounded on this, That the matter so restrained is always observed to be in the mind of him that promiseth, although the words of the Promiser do admit of a large signification.

XXV. (An observa∣tion concern∣ing the last recited Con∣jectures.)

But as concerning the Reason that moves the Will we must observe, That under it are comprehended not only things actually existing, but sometimes things that morally con∣sidered, may be; which when it takes place, no restriction ought to be admitted. As when it is in any League provided, That no Army or Fleet shall be sent to such a place, they ought not to be led thither, though there be no intention thereby to do harm, because in that agreement not so much the present damage, as all future dan∣gers whatsoever are regarded. But here it is also sometimes questioned, Whether Pro∣mises are to be understood with this tacite condition, That things remain so as they were when the Promise was made; Which we deny, unless it do manifestly appear, That that present condition of things was included in that only Reason which we have said. And we read of nothing more frequently in Histories than of Ambassadours, who understanding so great an alteration made in the State, as would render the whole matter and cause of the Embassie frustrate, have returned home without at∣tempting any thing.

XXVI. Or from the repugnancy of some e∣mergent case with the Will: Which is taken ei∣ther from something that is unlaw∣ful.

* 1.18The Repugnancy of some emergent case with the Will is of two sorts: For the Will is guessed at, either by Natural Reason, or by some other sign of the Will. The proper office to judge at the Will by Right Reason, Aristotle assigns to Prudence in the understanding, and in the Will, to Equity, which he very fitly defines to be the Correction or Mode∣ration of that wherein the Law by Reason of its generality is deficient: Which ought to take place, as well in Testaments as in Contracts respectively. For seeing that all emer∣gent cases could neither be foreseen by the Law-giver, nor excepted in the Law; therefore there is a necessity that some liberty should be granted for the exempting of such cases, as he that made the Law would have exempted, had he been present, or could he have foreseen it: And yet is not this rashly to be admitted, for that were to make himself Lord over another mans act; but then only, when we have sufficient signs to justifie our Conjectures. Whereof none can be more just than this, when they would binds us to things repugnant to the Laws either of God or Nature. For such Laws having no power to oblige, are necessarily to be exempted. Quaedam etiamsi nulla significatione Legis comprehensa sint, natura tamen exci∣piuntur; There are some things (saith Quintilian) that naturally are exempted, although they are not comprehended by any signification of the Law. As he that hath promised to restore a Sword to him who entrusted him with it, if the man to whom the Promise was made, be mad, he ought not to deliver it, lest he thereby create danger to himself, or to some others that are innocent. So neither are we to restore a thing to him that deposited it with us, if the right owner demand it. This I approve of (saith Triphonius) to be Justice,

that so gives to every man his own, that he detracts not from the juster claim of another. The Reason whereof is, because such is the force of Propriety, being once introdu∣ced, that not to return a thing to the right owner, when known, is altogether un∣just.

XXVII. Or when some too great a charge ariseth to the Promiser in comparison of that act.

The Second sign shall be this, When strictly to follow the words of the Promise or Con∣tract is not of it self and altogether unlawful. But when it binds to such things as to a pru∣dent and well-balanced Judgement are too grievous and intollerable: And that whether we respect humanity it self absolutely, or by comparing the person promising, and the thing promised, with the end for which such a Promise or Contract was made. So he that lends a thing for such a time, may require it before that time, if he stand in great want of it: Because it is presumed, that no man would willingly do his Friend a courtesie in that, wherein he should do himself a manifest injury. So he that shall promise succours to his Allies, shall be excused in case he be engaged in War at home, so far forth as he shall stand in need of those Forces. In like manner, he that promiseth immunity from Tri∣butes and Taxes, means only from ordinary and annual Taxes, not from those that may be imposed in times of greatest danger, for the defence of the Common-wealth. Wherefore it was too loosely said of Cicero, That those Promises were not to be performed, which were un∣profitable to him to whom they were made; nor those which did more endamage the Promiser, than benefit him to whom they were made. For the person promising is no competent Judge whether the thing promised will be profitable to him to whom it is promised, unless it be in such a case as is before instanced of apparent madness: Neither is every damage sufficient to absolve the Promiser from the performance of his Promise, but the damage must be such, as even from the very nature of the act it may be believed, That could it have been foreseen, it would have been exempted. So he that is engaged to do so many days service for another, is acquitted from his engagement, if either his Father or his Son be affected with some dangerous sickness: This was Cicero's opinion in this case, If being retained to plead the cause of thy Client, thy Son should in the mean time fall desperately sick, Non est contra officium,* 1.19 non facere quod dixeris; Thou art not in duty bound to attend that Cause. And in this sense is that of Seneca to be understood, Then do I break my word, then may I be justly charged with levity,* 1.20 when all things remaining in the state they were in when the Promise was made, I do not perform what I promised. But in case there fall out any unexpected change concerning that whereupon the Promise was made, it gives me liberty to consult anew, and yet I preserve my Faith. I am haply retained in a cause, wherein I do afterwards conceive that my Father may be damnified; I have promised to take a Journey into the Countrey with such a Companion, but I understand since that the way is infested with Robbers; I have engaged my word to be present, and to assist in such a business, but am with held by the unexpected sickness of my Son, or by my Wives falling into labour: Omnia esse debent eadem, quae fucrunt cum promitterem, ut promittentis fidem teneas; All things ought to be in the same con∣dition as they were when I promised, to oblige me to do what I did promise. Where by All things, we must understand all things relating to the nature of that Act which is in question.* 1.21 The English did frequently make use of these politick Ma∣xims both with the Hollanders and with the Hans-towns, as Camden records: For when Queen Elizabeth, by assisting the States of Holland, had drawn down the whole power of Spain against herself, and therefore, for her necessary defence, de∣manded those vast summs lent them to prosecute their War: They urging, That that Money was not due, by their Contract, till the end of the War; and that until then, she was obliged in Honour to assist them. She Answered, That a Prince was not bound by his Contract, when for just causes it manifestly turned to the publick detri∣ment; or when it was done by the accident of a new case; or when a new case ariseth, which had it been foreseen, would have been provided against. For that every Contract, though sworn, is understood with this reserved condition, if matters continue in the same state, but not if they be changed. Which that wise Queen grounded upon the Autho∣rity of Seneca, A wise man changeth not his resolution, all things continuing as they were at the time when he made it: nor can he be said to Repent, because, at that time, and as the case then stood, no better counsel could be followed than was then resolved on. And when the Hans-towns complained against her to the Emperour, That their privi∣ledges were broken in England, and their customes much enhansed: She Answer∣ed, That those Priviledges were by Authority of Parliament abrogated, as being not conve∣nient for the times, being granted when Traffick and Merchandizes lay dead among the English. And for her Customes, she said, that the Common-wealth could not subsist, if no other Customes should now be paid by the Hans-towns than what were paid three hundred years before. And much to this purpose is that of Seneca, Being invited to a Feast, I'll go because I have promised, although it be cold: I will arise to a Wedding because I have promised, although I am not sufficiently refresht with sleep; but not if I am Fevorish, although

I have promised: Nor will I stand bound with thee for any thing that is uncertain, though thou biddest me, in case thou art indebted to the Exchequer. For in all these Promises there are some tacite exceptions to be understood; namely, if I can, or if I ought so to do, if things be then as they now are: Effice ut idem status sit cum exigitur, qui fuit cum promitterem; Make the case the same when thou exactest my Promise, as it was when I made it: If any new thing intervene, it is not levity or inconstancy in me if I fail. What wonder is it if a man change his mind and counsel, when his condition is changed. Eadem mihi omnia praesta, & idem sum; Make all things the same, and then I also am the same.

XXVIII. Other signs whereby we may guess that such a case ought to be exempted.

There are also (as we have said) other signs of the Will, whereby we may conjecture, That that case was to have been exempted: Among which there are none more con∣vincing, than words spoken or recited, in some place, not where they do directly con∣tradict each other, which is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, whereof we made mention above. But when (as it were) unexpectedly from the very event of things they seem to clash one against ano∣ther, which the Greeks call 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.

XXIX. What Rules should then guide our conjectures.

Now when such a case happens, which part of the Writing ought to prevail with us, we may be instructed by some rules that Cicero* 1.22 hath left us out of some ancient and ap∣proved Authors, which are by no means to be slighted, yet in mine opinion are they not digested into a right order. And therefore I think fit to place them thus, That that which is permitted do always give place to that which is enjoyned: For, as Quintilian saith, Semper potentior lex est qua vetat, quàm quae permittit; That Law that commands is al∣ways stronger than that which permits. Because he that permits any thing is conceived to permit it, unless somewhat else do hinder, than what is then treated of; and therefore Plus valet sanctio, quam permissio, A Decree or Sanction is more prevalent than a Toleration. Secondly, That what is to be done at a time prefixt be always preferred before what may be done at any time. From whence it follows, That for the most part, that which forbids, is to be preferred before that which enjoyns: Because what prohibits, binds us at all times, but so doth not that which commands, unless it be either when the time is exprest, or that the command comprehends under it some tacite prohibition. Again, that in such agreements as are in their qualities before-named, equal, That should be preferred, which is most proper, and comes nearest to the matter in question: For Particulars are always more efficacious than Generals. And in things prohibited, that those which have a penalty affixt, be preferred before those that have none; and those that have a greater penalty, before those that have a lesser. As also that those be preferred that have causes affixt, either more honest or more profitable: And in the last place, that that which was spoken last be more valid than that which was spoken before. Of what hath been already said, this also must be here repeated, That look what Agree∣ments are sworn unto, must be understood in the most usual Propriety of Speech: And that all secret reservations and restrictions, more than the very nature of the thing doth ne∣cessarily require, be altogether disowned. Wherefore also in case an Agreement sworn shall in effect clash with that which is not sworn, that which was bound by an Oath shall be preferred.

XXX. In a case that is dubious, a Writing is not required to compleat the Contract.

It is also usually questioned, Whether in a doubtful case a Contract ought to be ac∣counted perfect and compleat, before the Writings are signed and delivered. For this Muraena alledgeth against the Agreement made between Sylla and Mithridates. To me it is very plain, That unless it be otherwise agreed on, the Writings stand but as the lasting Monument of the Contract, and not as any part of the substance of it: If other∣wise it must be so exprest, as in that made with Nabis: Where it was provided, That those conditions should be of force, From that day whereon they should be published by Nabis.

XXXI. The Contracts of Kings not always to be interpreted by the Roman Laws.

But I cannot admit of their opinion, who hold, That the Contracts of Kings and Free States are to be interpreted, as far as is possible, by the Roman Laws; unless it appear, That among those people the Civil Law, in such things as concern the Right of Nations, hath ever been received for the Law of Nations, which is not rashly to be presumed.

XXXII. Whether his words that offers, or his that accepts, are most bind∣ing.

As to that Question moved by Plutarch in his Symposiacks; namely, Whether the words of him that proposeth conditions, or of him that accepts of them are most binding. It appears to me, That seeing it is he that accepts that promiseth, they are his words, if absolute, and in themselves, that gives form and being to the Contract. For if he re∣gards the words of him that offers conditions affirmatively, he shall be thought to repeat those very words in his Promise, according to the Nature of Relatives. But certain it is, That before the conditions be accepted, even he that offers them is not bound to per∣form them. For until they are accepted, there is no Right acquired, as appears by what hath been already said concerning Promises. And this offering of conditions, is less bind∣ing than a Promise.

Notes

• * 1.1

  De off. l. 1.
• * 1.2

  Vand. l. 1.
• * 1.3

  Lib. 12.
• * 1.4

  Referent ad flatum finiti∣vum.
• * 1.5

  Symp. 9.13.
• * 1.6

  Ad Adimant.
• * 1.7

  See Book 3. c. 20. §. 11.
• * 1.8

  Lib. 21. The case of the Saguntines discust.
• * 1.9

  Hist. l. 3.
• * 1.10

  The breach of a League being a thing odious, and the taking of a just Revenge natural; the Carthagi∣nian League with the Ro∣mans must be understood in the strictest sense.
• * 1.11

  Liv. l. 38.
• * 1.12

  Pol. l. 1.
• * 1.13

  Procop. Pers.
• * 1.14

  Camden Eliz. anno 1572.
• * 1.15

  Lib. 1 & 2. de Orat. Bruto & p••o Caecina.
• * 1.16

  Exod. 21, 28, 35.
• * 1.17

  Lib. 1. c. 13.
• * 1.18

  Courts of E∣quity necessa∣ry.
• * 1.19

  Off. l. 1.
• * 1.20

  De Benef. l. 4. c. 35.
• * 1.21

  See Camd. anno 1595.
• * 1.22

  De Invent. 2. Verina 2.