The Law of War and Peace (1625)
by Hugo Grotius
On Promises, Contracts, and Oaths of Those Who Hold Sovereign Power
I. The opinion that restitution in full, which arises from municipal law, pertains to the acts of kings as such, is refuted; also, that a king is not bound by an oath.
1. THE promises, contracts, and oaths of kings, and of others who like them hold the chief power in the state, present peculiar questions in regard to what is permitted to them as regards their own acts; also, what is permitted to them in relation to their subjects and in regard to their successors.
As regards the first point, the question is whether a king can restore to himself his rights in full, as he can restore those of his subjects, or can make a contract void, or can absolve himself from an oath. Bodin is of the opinion that a king who has been overreached by the fraud or deceit of another, or induced by error or fear, can be restored to his original rights for the same reasons that a subject would be restored, not only in matters which pertain to the rights of sovereignty, but also in matters which relate to his private affairs. He adds that a king is not even bound by an oath if the agreements are of a kind from which the law permits withdrawal, even though they are consistent with honor; he is not, in fact, bound because he has taken oath, but because every one is bound in just agreements, in so far as another has an interest therein.
2. Here also we think that a distinction ought to be made, just as elsewhere, between the acts of a king which belong to the kingly office and those which are private. For whatever the king does in acts belonging to his kingly office should be considered in the same way as if the state did them. But as the laws made by the state itself would have no power over such acts, because the state is not superior to itself, so laws emanating from the king would not. Wherefore, restitution will not take place against such contracts, for restitution arises from municipal law. No exception, then, ought to be admitted against contracts of kings which they have made in their minority.
II. To what acts of kings the laws apply is set forth, with distinctions.
1. Evidently if a people has placed a king in power without absolute authority, but subject to certain laws, his acts contrary to those laws can be rendered void by them, either wholly or in part, because to that extent the people has preserved its own right. The acts of kings who rule with absolute power but do not hold their kingdoms as proprietary owners, acts by which the kingdom, or a part of the kingdom, or its revenues are alienated, we have treated above; and we have shown that by the very law of nature such acts are null and void, just as if they had been performed in respect to the property of another.
2. The private acts of a king, on the contrary, ought to be considered as acts not of the state, but of a part of the state, and therefore done with the intention that they should follow the common rule of the laws. In consequence the laws which render some acts either void, or voidable by the injured party, will apply here also, just as if the contract had been made with that as a condition. Thus we see that certain kings have availed themselves of the aid of the laws against extortionate interest charges. Nevertheless a king will be able to exempt from the operation of such laws his own acts, as well as the acts of others; whether he intended so to do must be judged from the circumstances. If he has done so, the case will have to be judged by the bare law of nature.
This should be added, that if any law renders an act null and void, not in the interest of the doer, but for his punishment, this will have no force in regard to the acts of kings; so also other penal laws, and whatever has the force of compulsion, will not apply. For punishment and coercion can proceed only from different wills; and so, to compel, and to be compelled, require separate persons, and separate aspects of the same person do not meet the requirement.
III. When a king is bound by his oath, and when not.
A king can render an oath null in advance, just as a private person may, if by a former oath he has plainly deprived himself of the power to swear to any such thing. But after an oath has been taken he cannot render it void, because here also separate persons are required. For whatever is rendered void after an oath has been taken already in advance contained in itself this exception,’ unless his superior should be unwilling.’ But to swear so that you would be bound only if you should yourself be willing is altogether ridiculous, and contrary to the nature of an oath. Although from an oath of this character no right, may be gained for the other party, because of some fault in himself, yet, as we have shown above, the person who took oath is under obligation to God. This applies no less to kings than to others, although Bodin, in the passage cited, maintains the opposite view.
IV. How far a king is bound with reference to things which he promised without cause.
It has also been shown above that promises which are complete and unconditional, and have been accepted,, naturally confer a right. This in like manner applies to kings no less than to others, so that in this sense at least the opinion of those who deny that a king is ever bound by promises which he has made without cause must be disapproved. Nevertheless, we shall presently see in what sense even this may be true.
V. Application of what has been said about the force of law as regards the contracts of kings.
As for the rest, what we said above, that the municipal law of a kingdom has no force in the agreements and contracts of kings, was correctly seen by Vazquez also. But his inference ought not to be conceded, that buying and selling without fixed price, letting and hiring without stated amount, and permanent right of land tenure without a written document, are valid if they are the acts of kings. The reason is that such acts are not ordinarily performed by a king as king, but by him just as by any person.
So far is it from being true that the laws of the realm have no force in respect to acts of this kind, that we believe that the king is subject even to the law of the town in which he lives; for the king maintains himself there in a special manner as a member of that society. Yet the matter stands, as we have said, only in case circumstances do not show that the king has been pleased to free his own act from the operation of that law. Another illustration which Vazquez presents, in regard to a promise made in any way whatsoever, is quite in point, and can be explained in the light of that which we have said above.
VI. In what sense a king may rightly be said to be under obligation to his subjects by the law of nature only, and also by municipal law.
1. Almost all jurists believe that the contracts, which a king enters into with his subjects, are binding upon him by the law of nature only, and not by municipal law.
This is a very obscure way of speaking. For legal writers sometimes improperly speak of a natural obligation as referring to that of which the fulfillment is by nature honorable, although. not in reality due, as the payment of legacies in full without the deduction allowed by the Falcidian Law, the payment of a debt from which one had been freed by a criminal penalty inflicted on the creditor, or the requiting of a favor with its like, acts of which none permits of an action to recover anything unjustly paid. But sometimes the words are more properly used with reference to that which does in truth bind us, whether the other party has acquired a right therefrom, as in contracts, or has not acquired it, as in a full and firm promise.
The Jew Maimonides, in his Guide of the Perplexed, Book III, chapter liv, appropriately distinguishes the three cases just mentioned, and says that what is not due falls under the head of ‘bounty,’ which other interpreters of Proverbs (20:28) explain as ‘overflowing of goodness.’ In the Hebrew language what is due according to the strict sense of the law is called’ a judgement’; and what is due in accordance with honor is defined by the Hebrew word meaning justice, that is, equity. So the interpreter of Matthew has used eleoV (mercy), krisiV (justice), and pistiV (faith), where by pistiV he expresses the idea for which dikaiosunh (justice) is generally used by the Hellenists. For in First Maccabees you may find krisiV used for that which is strictly due.
2. According to civil law also a person can be said to be bound by his own act, either in this sense, that an obligation results not from the law of nature alone but from the municipal law, or from both together, or in the sense that the obligation gives a right to action in a court of law. Therefore we say that a true and proper obligation arises from a promise and contract of a king, which he has entered into with his subjects, and that this obligation confers a right upon his subjects; such is the nature of promises and contracts as we have shown above; and this holds even between God and man.
Now if the acts are such as may be done by a king, but also by any one else, municipal law will be binding in his case also; but if they are the acts of the king as king, municipal law does not apply to him. This distinction has not been observed with sufficient care by Vazquez. Nevertheless, from both these acts a legal action may arise, at least so far that the right of the creditor may be declared; but compulsion cannot follow on account of the position of the parties with whom the business is conducted. For it is not permissible for subjects to compel the one to whom they are subject; equals, however, by the law of nature, have this right against equals, and superiors against inferiors even by municipal law.
VII. In what way a right lawfully obtained by subjects may be taken away.
This also ought to be known, that through the agency of the king even a right gained by subjects can be taken from them in two ways, either as a penalty, or by the force of eminent domain. But in order that this may be done by the power of eminent domain the first requisite is public advantage; then, that compensation from the public funds be made, if possible, to the one who has lost his right. Just as such a result is accomplished in other things, then, so also in respect to the right which is created by a promise or contract.
VIII. Here the distinction between rights gained by the law of nature and by municipal law is rejected.
Herein by no means should the distinction be conceded which some persons make, between a right gained through the force of the law of nature and a right which arises from municipal law. The right of the king is, in fact, the same over both kinds of rights, nor can the one any more than the other be taken away without cause. For when ownership or any other right has been acquired by any one in a legitimate manner it is a provision of the law of nature that this may not be taken away from him without cause. If a king should act to the contrary he is without doubt bound to make good the damage inflicted, because he is acting against a true right of the subject.
The right of subjects, then, differs from the right of foreigners in this, that over the right of foreigners, that is, over those who are in no way subject, the power of eminent domain has no control. In regard to penalties we shall see below. But the right of subjects is subordinate to that of eminent domain so far as the public interest may require.
IX. Whether the contracts of kings are laws, and when.
From what we have said it becomes apparent how false is the opinion which some advocate, that the contracts of kings are laws. For no one acquires a right against a king from the laws; if therefore he revokes them, he does a legal injury to no one. Nevertheless he commits a moral wrong if he pursues such a course without just cause. Right, however, does arise from promises and contracts. Only the contracting parties are bound by the contracts, while all are subject to the laws. Nevertheless, some mixtures of contracts and laws are possible, as treaties made with a neighboring king, or a contract with a farmer of the revenues which is at the same time published as a law, in so far as there are provisions in it which have to be observed by the subjects.
X. In what way the contracts of kings are binding on the heirs of all their possessions.
Let us come now to the successors.’ In regard to these a distinction must be made, whether they are the heirs at the same time of all the possessions as those who inherit an hereditary kingship by will, or in default of a will; or are successors to the kingship only, as for example in consequence of a new election, or in accordance with a prescribed rule; or by a sort of imitation of ordinary inheritance, or otherwise; or whether, finally, they succeed by a mixed right. For there must be no doubt that those who are heirs of all the possessions, as well as of the kingship, are bound by the promises and contracts. The rule that the property of the deceased is subject to his personal debts also is as old as property ownership itself.
XI. In what way those who succeed to the kingship only may be bound by the same contracts.
1. But there are those who succeed to the royal power only,’ or to the property in part and to the royal power in its entirety. The question to what extent they are obligated is one which is all the more worthy of investigation, for the reason that previously it has been confusedly handled. Now it is sufficiently clear that such successors to a kingship are not in that capacity directly, that is to say immediately, bound; they do not receive their right from the one who has last died, but from the people, whether that succession approaches more nearly to the right of ordinary inheritance, or is farther removed from it. This distinction has been treated above.
2. Such successors may be bound through an intermediary, that is through the interposition of the state. This will be understood as follows. An association, as well as an individual, has the right to bind itself by its own act, or by the act of a majority of its members. This right it can transfer, not only explicitly, but also as a natural consequence, as for example in transferring the sovereign authority. For in morals he, who grants the end, grants the means which lead to the end.
XII. To what extent those who succeed to the kingship only may be bound by the same contracts.
1. Nevertheless this transfer of obligations cannot go on to an unlimited extent. The unlimited power of imposing obligations is, in fact, not essential to the proper exercise of sovereignty, just as it is likewise not necessary for guardianship or trusteeship; it is necessary only in so far as the nature of the power demands.’ A guardian is considered as holding the place of the master,’ says Julian, ‘as long as he manages the estate well, not when he is robbing his ward.’ In this sense the statement of Ulpian, that the agreement made by the master of a society not only may help it but may also injure it, is to be understood.
Nevertheless, this matter [a contract by a king] does not, as certain persons think, have to be handled according to the nature of business undertaken for others, so that the act should then be considered to be ratified, if it has turned out advantageously. For it is dangerous for the state itself to reduce the ruler of the state to such straits. Therefore it is not to be believed that the people held such an opinion when it conferred the sovereign power. But the decision rendered by the Roman emperors in the case of a city, that action taken by the magistrates in a doubtful matter was valid, but not if that was undoubtedly given away which could be collected, ought and can be made to apply to our question concerning the whole people, if due proportion has been preserved.
2. Consequently, just as not all laws bind the subjects – for even in addition to laws which command something illegal there can be laws that are plainly foolish and ridiculous so also the contracts of rulers are binding upon subjects if they have a reasonable motive; and in case of doubt such a motive ought to be presumed by reason of the authority of those who rule. This distinction is much better than the one commonly suggested by many writers, which is based on the slight or great injury of the outcome. In this matter, in fact, not the outcome, but the reasonable motive, ought to be kept in view. If a reasonable motive is present, both the people itself will be bound, if by any chance it has commenced to be independent, and also the king’s successors, as being the rulers of the people. For also in case a free people should have made a contract the obligation would be binding upon the one who should afterward accept the sovereignty, even with the most unlimited powers.
3. Titus Caesar is praised on this account,’ because he did not allow petitions to be made to himself for the favors granted by his predecessors, although Tiberius and the emperors who followed him had not considered the benefactions of their predecessors valid, unless these had been expressly confirmed by themselves. Following the example of Titus, the most excellent emperor Nerva, in an edict preserved in Pliny, says: ‘I am unwilling that any one should think that what he obtained from another emperor, either privately or publicly, is annulled by me in order that he may be under obligation to me if I ratify and confirm it; and the congratulations of any one do not need to be accompanied by petitions for renewal.’ But also Tacitus, having related of Vitellius that without regard for posterity he had torn the Empire to pieces while the common crowd were thronging to secure his extravagant gifts, and some people were even buying them with money, adds, ‘Among wise men those gifts were considered void which could neither be given nor accepted without the ruin of the state.’
4. Here also this should be added, that if by any chance a contract should begin to lead not merely to some loss, but to the ruin of the state, so that the contract, if carried to conclusion, would have to be considered as unjust and illegal from the beginning, then it is possible not exactly to revoke it, but rather to declare that it has no further binding force,” as if made under a condition without which it could not have been made justly.
5. What we have said about contracts is also to be understood in regard to the alienation of the public funds, or of anything else which, according to law, the king can alienate for the public good. Here also a similar distinction must be maintained, whether there was a reasonable motive for giving, or otherwise alienating.
6. But if the contracts have to do with the alienation of the kingdom, or of a part of it, or of the royal patrimony, in so far as this has not been placed in the king’s hands, they will not be valid, for the reason that they have been made in regard to the property of another. The same will hold in limited monarchies, if the people has reserved any matter, or kind of act, from the royal power. For in order that such acts may be valid the consent of the people is required, such consent being given either in person or through those who lawfully represent it, as can be understood from what I have said above about alienation.
With the help of these distinctions it will be easy to judge whether the pleas made by those kings that have refused to pay the debts of their predecessors, whose heirs they have not been, were just or unjust. It is possible to find examples of such pleas in Bodin.
XIII. What grants of kings are revocable, and what are not, is set forth, with a distinction.
This, again, which has been affirmed by many, that the grants of rulers made from generosity can always be recalled, ought not to be allowed to pass without a distinction. There are, in fact, certain gifts which a king makes at his own expense, and which have the force of an absolute grant, unless there is inserted a clause implying termination at will. Such grants cannot be revoked, except in relation to subjects for the purpose of punishment, or in the public interest in the latter case, with compensation if possible.
There are other grants which take away the binding force merely of a law without any contract, and these are revocable. The reason is that, as a law which has been annulled in regard to all people can always be re-enacted for all, so also, when a law in respect to a particular person has been annulled, it can be restored in regard to that person. Here, in fact, no right was acquired against the author of the law.
XIV. Whether the rightful possessor of the throne is bound by the contracts of usurpers.
Neither peoples nor rightful kings will be bound by the contracts of those who have unlawfully seized the sovereign authority. For these do not have the right to place a binding obligation on the people. Nevertheless they will be bound for what has been spent for their advantage, that is, in so far as they have been made richer.