The Law of War and Peace (1625)
by Hugo Grotius
On Treaties and Sponsions
I. What public conventions are.
ULPIAN divided conventions into public and private. Public conventions he explained, not, as some think, by definition, but by giving examples. His first example is the convention ‘which is arranged in time of peace ‘; and the second,’ When the generals in command in a war conclude certain agreements with each other.’ Ulpian, then, understands that public conventions are such as can be made only by the right of a higher or lower authority of government; and in this respect they differ not only from the contracts of private persons, but also from the contracts of kings which are concerned with private affairs.
However, from such private contracts also causes of war are wont to arise, although more frequently from public contracts. Having, therefore, sufficiently treated of compacts in general, we ought to add some details which relate to this more excellent kind of agreement.
II. Conventions are divided into treaties, sponsions, and other agreements.
We can divide these public conventions, which the Greeks call sunqhkaV (articles of agreement), into treaties, sponsions, and other agreements.
III. The difference between treaties and sponsions; to what extent sponsions are binding.
1. For the distinction between treaties and sponsions, Livy may be cited, in Book IX, where he correctly shows us that treaties are made by order of the highest authority, and that in respect to such treaties the people itself is liable to divine wrath if it does not keep its agreements. Such treaties, according to custom, were made among the Romans by the fetials together with the ratifying priest. A sponsion is made when those who do not have from the supreme authority a commission for such an act promise something which essentially affects that authority.
In Sallust we read: ‘As was proper, the senate decreed that no treaty could have been made without its authorization and that of the people.’ Hieronymus, king of Syracuse, had made an agreement of alliance with Hannibal, as Livy relates; but afterward he sent to Carthage in order to make the agreement of alliance into a treaty of alliance. Hence the statement in Seneca the father: ‘The commanding general made a treaty; the Roman people seems to have made it and is bound by the treaty.’ This refers to those commanders of ancient times who had received a special commission for such an act.
In kingdoms, however, the kings have the right to make treaties.’ Says Euripides in the Suppliants:
- This treaty oath Adrastus needs to swear;
For having royal power, the right he has
To bind the state with treaty made by him.
In this passage, in fact, the verb at the end is to be read as an infinitive, as we have given it, not in the indicative.
2. Moreover, just as the magistrates do not bind the people by their acts, so a minority of the people does not. This principle favors the Romans as against the Senonian Gauls; for the majority of the people were with the dictator Camillus. It is not possible, as we find in Gellius, to treat with a people in two divisions.
3. But let us see wherein those are obligated who, without the authority of a people, have promised something which is within the power of the people. Some one may perhaps think that in this case the promisors have fulfilled their pledge if they have done their utmost to have their promise carried out in accordance with the principles which we have previously stated in regard to a promise made by a third party. But in this matter, in which a contract is involved, nature desires a much stricter obligation. For whoever in making a contract gives or promises something of his own wishes in turn that something in fact be furnished to him; hence, according to the civil law, which rejects the promise of another’s act, the promise to have an act ratified is nevertheless binding, so far as the promisor is concerned.
IV. Rejection of the classification of treaties which Menippus made.
According to Livy, Menippus, ambassador of King Antiochus to the Romans, made a classification of treaties rather for his own purpose than according to the rules of his craft. He said that there are three kinds of treaties which kings and states make with each other. One kind is consummated when terms are dictated to those who have been conquered in war; in this class of treaties the victor has the decision as to what he wishes the conquered to have and to be deprived of. The second kind of treaty is made when those who are equal in war come into relations of peace and friendship by an equal alliance; in such cases restitution is asked and granted by the agreement, and if the possession of anything has been disturbed by the war a readjustment is made either in accordance with the terms of the ancient right or to the mutual advantage of both parties. The third kind is consummated when those, who have never been enemies, unite in a league of friendship with each other through a treaty of alliance; in such cases the signatories neither impose terms nor accept terms.
V. The classification of treaties: first, treaties which establish the same rights as the law of nature; whence this arises.
1. But it is necessary for us to make a classification with greater painstaking. First, then, we shall say that some treaties establish the same rights as the law of nature, while others add something thereto. Treaties of the first class not only are wont to be made between enemies who cease from war, but formerly also they were often made, and were in some degree necessary, as between those who previously had made no compacts with each other.
Hence arose the rule of the law of nature, that by nature there is a kind of relationship between men, and therefore it is an impious crime that one should be injured by another. Though this rule was in force in the olden time before the Flood, yet some time after the Flood it was effaced again by evil customs, so that it was considered lawful to rob and to plunder strangers without declaration of war. This Epiphanius calls ‘the Scythian fashion.’
2. In consequence the question in Homer,’ ‘Are you plunderers?’ is a friendly inquiry, of which Thucydides also makes mention. In the ancient law of Solon there are companies ‘of those who go out for booty.’ Indeed, as Justin says, up to the times of Tarquin piracy was considered an honor. In the Roman law this principle is stated, that if it is considered that neither friendship nor hospitality nor any treaty for the sake of friendship has been made with any peoples these are not indeed public enemies; yet whatever has come to them from the Romans should belong to them, and a free Roman captured by them would be a slave. The same thing, again, would happen if any one came from them to the Romans; and in this case also postliminy should be granted.
Thus formerly, before the period of the Peloponnesian War, the Corcyraeans were not public enemies of the Athenians, but they had neither peace nor treaties with them, as is apparent from the speech of the Corinthians in Thucydides. Of Bocchus Sallust says ‘Known to us neither in peace nor in war.’ Hence the taking of plunder from barbarians was commended by Aristotle, and in ancient Latium the word hostis means only a stranger.
3. In this class I include also treaties in which provision is made that there shall be rights of hospitality and commerce on both sides, in so far as such rights come under the law of nature, a subject which we have treated elsewhere. According to Livy Arco uses this distinction in his speech to the Achaeans, in which he said that the question at issue is not regarding an alliance but regarding a stipulation for granting and obtaining a right of commercial intercourse, in order that, to be specific, the slaves of the Macedonians might not find a refuge among them. The entire class of conventions the Greeks call in a strict sense ‘peace,’ and they contrast it with ‘treaties,’ as may be seen both elsewhere and in the oration of Andocides On the Peace with the Lacedaemonians.
VI. Treaties which add something beyond the rights of the law of nature; what treaties are on equal terms.
1. Conventions which add something beyond the rights based on the law of nature are either on equal or on unequal terms. Those are on equal terms which are of the same character on both sides,’which are equal and common on both sides,’ as Isocrates says in the Panegyric. To such a convention the verses of Virgil apply:
- Nor seek kingdoms for myself; on equal terms
Unvanquished let the nations both alliance form
That shall endure for ever.
The Greeks call conventions of the first type sometimes simply ‘covenants,’ sometimes ‘covenants on like and equal terms,’ as may be seen in Appian and Xenophon. The second type they call more properly ‘treaties’; and in so far as these are concerned with inferiors they call them ‘arrangements imposed by command.’ In his speech On the Freedom of the Rhodians, Demosthenes says that such treaties ought to be avoided by those who love liberty, because they approach very near to servitude.
2. Treaties of both types are made for the sake either of peace or of some alliance.
Equal treaties of peace are those, for example, which are commonly arranged for the restoration of captives and of captured property, and for safety; these will be discussed below in connection with the effects and consequences of war.
Equal treaties of alliance have to do either with commerce, with joint action in war, or with other matters. Equal agreements in regard to commercial relations may have various ends in view, as, for example, that no import duties should be paid on either side, an article of agreement in the ancient treaty between Rome and Carthage, containing an exception to cover that which was regularly given to the clerk and the public crier; or that no greater duties should be levied than at present; or that duties should be levied only up to a certain amount.
3. So also in an alliance for war the agreement may be that equal auxiliary forces of cavalry, infantry, and ships shall be furnished, either for every war, which the Greeks call ‘an offensive and defensive alliance,” and Thucydides explains as ‘having the same enemies and friends ‘ – this you may often find in Livy also – or for protecting the boundaries only, which the Greeks call ‘a defensive alliance’; or for a particular war; or against particular enemies; or against all enemies, to be sure, but with the exception of allies, as in the treaty between the Carthaginians and Macedonians, which is found in Polybius. Likewise the Rhodians by treaty promised aid to Antigonus and Demetrius against all enemies whatsoever except Ptolemy.
An equal treaty, as we have said, may apply also to other matters, with provisions such as these, that neither signatory shall have fortresses in the territory of the other,’ or defend the subjects of the other, or furnish a passage to the enemy of the other.
VII. What treaties on unequal terms are; such treaties, again, are subdivided.
1. From the discussion of treaties on equal terms it may easily be understood what unequal treaties are. Unequal terms, moreover, are promised either by the party of higher rank or by the party of lower rank. Such terms are unequal on the part of the superior if he promises aid, but does not require it, or promises greater aid. Unequal terms on the part of the inferior, or, in accordance with what Isocrates says in the Panegyric just cited,’ those who oppress the other party more than is just are those which, as we have said, were called ‘arrangements imposed by command.’
Such treaties, again, are either accompanied by impairment of sovereignty, or are without such impairment.
2. Such treaties may be accompanied by impairment of sovereign power, as the second treaty of the Carthaginians with the Romans, which contained the provision that the Carthaginians should not make war on any one without the sanction of the Romans. From that time, as Appian says,’ the Carthaginians, by treaty, were subject to the Romans.’
To this kind of treaty there may be added a conditional surrender, excepting that such a surrender involves not an impairment but a transfer of the whole sovereign power; on this subject we have spoken elsewhere. Such an agreement Livy designates as a treaty both elsewhere and in Book IX: ‘The Teates in Apulia begged that a treaty should be granted to them, and yet that they should not be on equal terms, but under the sway of the Roman people.’
3. In treaties without impairment of sovereign power the burdens are either temporary or permanent.
The temporary burdens are concerned with the payment of an indemnity, the destruction of fortifications, the withdrawal from certain places; or the giving of hostages, of elephants, of ships.
The permanent obligations are, for example, to recognize the sovereignty and respect the majesty of the other signatory; what the force of such a stipulation is we have said elsewhere. Closely related to this is the provision that the one signatory should have as enemies and friends those whom the other signatory desires; and that a passage through his territory, or supplies, should not be given to any army with which the other is at war. Then there are the other matters of less moment, that it should not be permissible to build fortresses in certain places, or to lead an army thither, or to have ships beyond a certain number, or to build a city, or to engage in navigation, or to enlist soldiers in certain places; that they should not attack the allies, nor aid enemies with provisions, nor receive persons coming from another place; and that treaties previously made with other peoples should be annulled. Examples of all these provisions may be found in Polybius, Livy, and other historians.
4. Unequal treaties, moreover, are wont to be made not only between victors and vanquished, as Menippus thought, but also between more powerful and less powerful peoples that have not even engaged in war with each other.
VIII. That treaties with those who are strangers to the true religion are permissible by the law of nature.
A question frequently raised concerning treaties is whether they are lawfully entered into with those who are strangers to the true religion.
According to the law of nature this is in no degree a matter of doubt. For the right to enter into treaties is so common to all men ”that it does not admit of a distinction arising from religion. There ‘is, however, a question in regard to the teaching of the divine law, and in consequence not only the theologians but also some jurists treat the question; among these are Oldradus and Decianus.
IX. That treaties with those who are strangers to the true religion are not, generally speaking, prohibited by the Hebraic law.
1. Let us first consider the divine law as set forth in the Old Testament and afterward discuss the teaching of the New
Before the law of Moses it was permissible to make with strangers to the religion a treaty not to inflict injury. An example is the ‘treaty between Jacob and Laban not to speak now of Abimelech, since it is not sufficiently established that he was an idolater. And no change in this respect was made by the law of Moses. Let the Egyptians serve as an example. They without doubt were at that time idolaters; yet the Jews are forbidden to hold aloof from them. An exception must be made of the seven peoples condemned by a divine sentence, which the Jews were chosen to execute; for Israelites are forbidden to spare them, because they are obstinate in their idolatry and refuse to submit to overlordship. To these the Amalekites likewise were joined by divine decree.
2. Treaties of commerce also, and other similar conventions, which are to the common advantage, or to the advantage of either party, may be entered into with pagans according to the law. Nothing, in fact, is found which is opposed to this view. Further, we have examples of the treaties which David and Solomon made with Hiram, king of Tyre; and the point is to be noted that in the Scriptures it is stated that this treaty was made by Solomon according to the wisdom which God had given him.
3. The law of Moses does indeed specially command Jews to do good to their own people, ‘to love their neighbor.’ Further, the peculiar food and system of morals prescribed for the Jews scarcely admitted of familiar intercourse with other men. But from this it does not follow either that they were not permitted to do good to strangers, or even that such doing of good was not praiseworthy, though this inference has been erroneously drawn by the faulty interpretation of later teachers. From such a source comes the statement of Juvenal about the Jews:
- The way he does not show except to one
Who shares with him his sacred rites.
In this passage the example of pointing out the way stands for the forces which are least troublesome and costly, which Cicero and Seneca say ought to be granted even to strangers. Of like import is the statement of Tacitus concerning the same people: ‘In their relations with one another, inflexible good faith, ready compassion;’ against all others, hostility and hatred.’
Similarly in the New Testament we read that the Jews: were not accustomed to live, ‘to have dealings,’ ‘to eat,’ ‘to join,’ or’ to’ associate,’ with those of foreign origin. Also Apollonius Molo said,,’in reproach of the Jews, that’ those who had different views about God were not received by them, and that they did not have anything in common with those who differed from them in mode of life,’ According to Diodorus friends of Antiochus bring against the Jews the charge that ‘they alone of all peoples are unsociable with foreigners to such a degree that they consider all other men as enemies.’ There follows this about the same people: ‘With no other race do they eat in common, nor do they wish well to others.’
Presently’ hatred of the human race’ is alleged against them. In Philostratus Apollonius of Tyana speaks thus of the Jews: ‘They have found a kind of life so withdrawn from human intercourse that they do not even eat in common with others.’ Likewise also in Josephus ‘the unsociable mode of life’ of the Jews is in many passages objected to.
4. That such is not the meaning of the law Christ taught us by His example, when He did not refuse to accept water from the Samaritan woman, though He is everywhere most observant of the Temple. But also formerly David had sought refuge among peoples not of the faith, and he is nowhere criticized on that account. In Josephus this utterance is assigned to Solomon, when dedicating the Temple and praying that God might there hear even the prayers of foreigners: ‘We are not of unhuman disposition, nor ill-disposed towards strangers.’
5. Not only are the peoples who were mentioned above to be excepted from this rule, but also the Ammonites and Moabites, who are spoken of in Deuteronomy23:6: ‘Thou shalt not seek their prosperity’- this is here a better interpretation of the Hebraic word than ‘their peace’ – ‘nor their good all thy days for ever.’ By these words beneficent treaties with the peoples mentioned are forbidden, though the right to make war is not also granted; or at any rate, according to the opinion of some of the Jews, it was forbidden to seek peace from them, or even to accept it when offered. Surely the right to make war on the Ammonites is denied to the Jews in Deuteronomy 2:19; and Jephthah did not commence war against them until the ways of a fair peace had been tried, nor did David, except when provoked by cruel injuries.
6. There remains the question of an alliance for purposes of war.
Before the giving of the law such an alliance with heathen peoples was permissible, as is apparent from the example of Abraham, who helped the impious Sodomites in war. In general no change in the law of Moses in regard to this matter is read of. Consistent with the position stated was the view of the Asmonaeans, as we see, a people both skilled in the law and very religious, as is apparent from their careful observance of the Sabbath, the defense only of themselves, and their use of weapons for no other purpose. Nevertheless, with the approval of their priests and people, they made; treaties with the Lacedaemonians and the Romans; even more, they performed public sacrifices in behalf of the safety of those peoples. The cases which are cited to prove the contrary have special reasons.
7. If, in fact, God had indicated through the prophets that any kings or peoples, besides those that had been mentioned in the law, were hateful to Him and condemned to misfortune, without doubt it would have been an impiety to undertake their defense or to make an alliance with them. With this harmonizes the statement of the prophet to Jehoshaphat in regard to the king of Israel: ‘Shouldst thou help the wicked, and love them that hate God? For this thing wrath is upon thee from before God.’ The prophet Micah had already, in fact, foretold the unhappy outcome of the war. Then there are the words of the other prophet to Amaziah ‘Let not the army of the Israelites go with thee; for the Lord is not with Israel, to wit, with all the children of Ephraim.’
That this attitude was not determined by the nature of the treaty, but by some peculiar quality of the person, is shown even by the fact that jehoshaphat was severely reproved, with threats also, because he had entered into an alliance with Ahaziah, king of the Israelites, for the sake of commerce, similar to the alliance which David and Solomon had made with Hiram; and they, as we have said, in part were not criticized, in part were praised, on that account. For the additional statement that Ahaziah had acted very wickedly ought to be referred to his whole life; and on that account God was hostile to him and all his undertakings. In this way the narrative is explained in the work which is entitled the Constitutions of Clement.
8. This also should be noted, that the case of those descendants of Jacob that had deserted God, Who was well known to them, was worse than that of foreign peoples. For the rest of the people took up arms against those deserters in accordance with the law, which is found in Deuteronomy 13:13 .a
9. There are cases also where treaties are censured by reason of a fault in the intent with which they were made. Thus Asa was reproved by the prophet for the reason that he had made an alliance with the Syrian because he distrusted God. This distrust he had shown when he sent to the Syrian things that were consecrated to God. But the same king was further censured because he had put his hope in doctors, and not in God. Consequently, it no more follows from this narrative that it is inherently and universally wrong to make an alliance with such peoples as the Syrians than it is to consult doctors. The intent, in fact, vitiates many acts which are not unpermissible, such as the numbering of the people in the case of David, the display of treasures in the case of Hezekiah. Similarly in another passage confidence placed in the Egyptians is censured, although it was permissible for Solomon to make an alliance with them.
10. To the considerations already presented this also should be added, that under the ancient law the Jews had clearly expressed promises of victory if only they observed the law, so that they were less under the necessity of having recourse to human help. In Solomon, again, there are not a few maxims about avoiding association with the wicked. These, however, are the admonitions of prudence, not precepts of the law; and those very admonitions, as moral precepts in most cases, have a great many exceptions.
X. That treaties with those who are strangers to the true religion are not prohibited by the Christian law.
1. Moreover, the law of the Gospel made no change in this matter. Rather it extends even greater favor to treaties by which those who are strangers to the true religion receive help in a just cause; for the doing of good to all men, whenever there is opportunity, has not only been left free and praiseworthy, but has even,,been enjoined by precept. By the example of God, who maketh His sun to rise on the good and on the evil, and sendeth rain for both, we are bidden to exclude no class of men from our deeds of kindness. Tertullian well said:
So long as the covenant was confined to Israel, He properly commanded that compassion should be shown only to brethren. But when He had given to Christ ‘the gentiles as His inheritance and the ends of the earth for His possession,’ then began to be fulfilled that which was spoken by Hosea: ‘Ye are not my people, who were my people; ye have not obtained mercy, who once obtained mercy ‘that is, the nation. Thenceforth Christ extended to all the law of brotherly kindness, excepting no one from His compassion, just as He had excepted no one from His invitation.
2. Now this law ought to be received with due regard to difference in degree, so that we should be doers of good to all, but particularly to those who share the same religion. In the Constitutions of Clement we read: ‘Service ought to be rendered to all, but in such a way that greater consideration should be shown to those, that are holy.’ Says Ambrose: ‘Perfect generosity is commended by reason of faith, cause, place, and time, so that you labor first on behalf of the servants of the faith.’ The statement of Aristotle As similar: ‘It is not, in fact, fair that equal care should be taken for strangers and for friends.’
3. Furthermore, familiar association with men who are strangers to the true religion is not prohibited; and not all intercourse, but only that which is unnecessarily intimate, is forbidden even with those whose case is worse, who have fallen away from the rule of Christian teaching; and not even that is forbidden if it furnishes the hope of their correction.
This is the force of the passage in the writings of Paul: ‘Be ye not unequally yoked with unbelievers; for what fellowship have righteousness and iniquity? or what communion hath light with darkness? And what concord hath Christ with Belial? or what portion hath a believer with an unbeliever?’ The passage refers to those who joined in the feasts at the temples of idols, and thus either were guilty of idolatry, or at any rate presented the appearance of being guilty. This is shown by the words which follow: ‘What agreement hath a temple of God with idols?’ Statements similar to these appear in the First Epistle to the same Corinthians: ‘Ye cannot partake of the table of the Lord and of the table of demons.’
4. Proof again will by no means naturally follow from this fact, that we ought not of our own will to submit to the rule of the heathen, or contract marriages with them. For in both these cases it is apparent that there is greater danger, or at any rate greater difficulty is thrown in the way of practicing the true religion. Add also the consideration that such ties are more lasting, and in marriage the choice is freer, while treaties have to be made to satisfy the exigencies of the time and place. Moreover, as it is not wrong to do good to the heathen, so it is not wrong to implore their aid, as Paul invoked the aid of Caesar and the tribune.
XI. Cautions in regard to such treaties.
1. In such alliances, therefore, wrongfulness is not inherent nor universal, but is subject to judgement according to the circumstances.’ Pains must, in fact, be taken that too great intimacy may not bring contamination to the weak. With this end in view it will be advantageous that the homes be kept separate, as the Israelites dwelt apart from the Egyptians. Not without reason are those verses of Alexandrides:
- I cannot as your fellow-soldier fight;
For neither our laws nor customs harmonize,
But differ by great intervals.
Here also the remarks apply which I have elsewhere made concerning the religious scruples of the Jews and Christians in respect to joint military service with the heathen.
2. But also if, as a result of such an alliance, the power of the heathen is going to be greatly increased, it should be refrained from except in direst need. Applicable here is what. Thucydides said in a similar case: ‘Those who are treacherously attacked, as we are by the Athenians, ought not to be looked upon with disfavor if they seek safety not only in the aid of the Greeks but also in that of the barbarians.’ No right whatsoever is sufficient to warrant committing what will probably be harmful to religion, indirectly, if not directly. For as a matter of first importance the kingdom of heaven is to be sought, that is, the spread of the Gospel.
3. It were greatly to be desired that today many princes and peoples should take to heart the generous and noble utterance of Fulk, formerly Archbishop of Reims, who thus admonished Charles the Simple: ‘Who would not be greatly alarmed that you desire the friendship of the enemies of God,’ and are receiving heathen armies in detestable alliance, to the destruction and downfall of the Christian name? For it makes no difference whether any one allies himself with the heathen or denies God and worships idols.’ There is a saying of Alexander found in Arrian: ‘They do a grievous wrong against the rights of Greeks who serve with the barbarians in war against the Greeks.’
XII. That all Christians are under obligation to enter a league against the enemies of Christianity.
At this point I shall add that, since all Christians are members of one body, and are bidden to share one another’s sufferings and misfortunes, just as this principle applies to individuals, so also it is applicable to peoples as such, and to kings as such. For every man ought to serve Christ not only personally, but also with the power that has been entrusted to him. This, however, kings and peoples cannot do while an impious enemy is raging in arms, unless they furnish aid to one another. Such aid, again, cannot be rendered effectively unless an alliance is made for that purpose. Such a league was formerly made, and the emperor of the Holy Roman Empire was unanimously chosen as its head. To this common cause, therefore, all Christians ought to contribute men or money, according to their strength. How they can be excused from making such a contribution, I do not see, unless they are kept at home by an unavoidable war or some other equally grievous misfortune.
XIII. To which ally help should by preference be given when several are at war, is explained, with distinctions.
1. This question also frequently arises. If several are at war, to which of two parties ought aid preferably to be given by one who is in alliance with both?
First, then, that is to be recalled which we previously said, that there is no obligation to undertake unjust wars. Therefore that one of the allies who has a just cause for war ought to have the preference’ if the contest is with one who is not in alliance. The same will likewise hold if the contest is with another ally. Thus in his speech in regard to Megalopolis Demosthenes showed that the Athenians ought to give aid to their allies the Messenians against the Lacedaemonians, who were also allies, if the latter were the aggressors.
The principle stated holds true only if there is no clause in the agreement forbidding that aid be sent to an ally. In the agreement of Hannibal with the Macedonians there was the clause ‘We shall be the enemies of your enemies, with the exception of the kings, states, and ports with which we have treaties of friendship.’
2. Now if allies are engaged in war with each other for unjust causes on both sides – and this can happen – it will be necessary to refrain from aiding either party. Thus Aristides says, in his fifth speech On Leuctra: ‘If indeed they were asking for aid against others, it would be an easy matter; but if each of the allies was requesting aid against the other they did not wish to mix in the affair.’
3. If, on the contrary, two allies are waging war against others, and each for a just cause, aid in men and money will have to be sent to both, if this can be done, just as happens in the case of personal creditors. But if the undivided cooperation of the one who has promised is required, reason demands that preference be shown to the ally with whom the treaty is of longer standing.’ This, according to Polybius, is what the Acarnanians said to the Spartans. And the answer given by the Roman consul to the Campanians has the same effect: ‘It is right that friendships be so established that the more ancient friendship and alliance shall not be violated.’
4. But an exception needs to be made if the later treaty has something beyond the promise which, so to speak, contains in itself the transfer of ownership; that is, some form of subjection. For so also in a sale we say that the earlier promise receives the preference, unless a later promise has transferred ownership. So in Livy the Nepisini held the pledge of surrender more sacred than that of alliance.
Others draw these distinctions more subtly, but what I have said, as more simple, is, I think, nearer the truth.
XIV. Whether an alliance may be considered as tacitly renewed.
An alliance ought not to be considered as renewed tacitly on the expiration of the time, except in consequence of acts which admit of no other interpretation. A new obligation, in fact, is not easily presumed.
XV. Whether the one party may be freed by the perfidy of the other.
If one party has violated a treaty of alliance, the other will be able to withdraw from it; for the individual terms of an alliance have the force of conditions. This instance in Thucydides may serve as an example: ‘Those do not bear the blame of breaking a treaty of alliance who, abandoned, turn to others for help, but those who do not in fact furnish the aid which on oath they had promised.’ There is another example in the same author: ‘If either of the parties should deviate from the terms ever so little, the alliance would be broken.’ This, however, is true only in case there has been no agreement to the contrary; for sometimes such an agreement is made in order that withdrawal from the league may not be permissible for a slight offence.
XVI. To what the signers are bound if a sponsion signed by them is rejected; also concerning the sponsion of the Caudine Forks.
1. Sponsions can have as many kinds of subject-matter as treaties. Sponsions and treaties, in fact, differ only in the power of the persons who make them. But in regard to sponsions there are two questions that are commonly raised.
The first question is, in case a sponsion is disapproved by the king or state, to what are the signers bound; whether they are to make good the loss, or to restore matters to the state in which they were in before the sponsion, or to be surrendered in person. The first alternative seems to be in harmony with Roman civil law; the second, with equity – and this was urged by the tribunes Lucius Livius and Quintus Maelius in the Caudine controversy; while the third opinion has been approved in practice, as is apparent from the examples of the two famous sponsions of the Caudine Forks and Numantia.
Now the point which ought to be maintained above all others is that the one who holds the sovereign power is under no obligation whatsoever. Postumius well said to the Romans: ‘You have made no compact with the enemy; you have not commanded any citizen to make one for you. Therefore you have no dispute with us, to whom you gave no commission, nor with the Samnites, with whom you have made no engagement.’ Equally well did he say this: ‘I declare that nothing can be so sanctioned as to bind the people without the order of the people.’ This again is not less to the point ‘If there is anything to which the people can be obligated, it can be obligated to all things.’
2. Therefore the people was not bound either to give compensation or to make restitution. For if the Samnites had wished to have dealings with the people, they ought to have kept the army at the Caudine Forks and to have sent envoys to Rome, to treat with the senate and the people concerning a treaty of peace, in order that the people itself might judge of how great value the safety of the army was to it. Then, if at length the treaty had not been kept, they could have said, what Velleius says was maintained by both the Samnites and the Numantines, that the violation of the public faith ought not to be expiated with the blood of a single individual.
3. With greater plausibility it can be said that all the soldiers were bound by the obligation.’ And this would certainly be fair if the sponsion had been made by the signers on their order and in their name, as we see was done in the case of the treaty which Hannibal made with the Macedonians. If now the Samnites were satisfied with the good faith of the signers, and of the six hundred hostages whom they had levied, they had only themselves to blame.
Again, if the signers claimed the power to execute agreements in the name of the state, they were bound to make restitution for the loss suffered by reason of their deceit. If deceit was not apparent, they were bound to have that ratified which was called for by the force of the negotiations. And in this case not only the bodies but also the property of the signers would be under obligation to the Samnites, unless they had imposed a penalty in the place of their loss. For there had been an agreement in regard to the hostages, that their lives were forfeited if the compact was not adhered to. Whether the same penalty was agreed upon in regard to the, signers, is not clear; but the stipulation of a penalty affects what is .done in such a way that there is no other obligation if the deed cannot be performed. For a certain advantage has succeeded to the place of an uncertain one. Moreover, it was the current opinion of those; times that even a life could be lawfully pledged as security.
4. Among us who hold a different opinion, I think that in such a sponsion first the property is liable up to the amount of the loss; and if that is not sufficient, then the person is subject to slavery. Formerly Fabius Maximus, when the senate had rejected an agreement which he had made with the enemy, sold his estate for 200,000 sesterces and made good his promise.’ Besides, the Samnites rightly thought that Papius Brutulus, who broke a truce, ought to be surrendered together with his property.
XII. Whether a sponsion that has not been rejected is made binding through knowledge of it and through silence is set forth, with distinctions; likewise concerning the sponsion of Luctatius.
1. A second question is whether a sponsion is binding upon the sovereign authority in consequence of the knowledge of it, and of silence.
Here the distinction should be made, first, whether the sponsion was made unconditionally, or on the condition that it should be considered as valid by the supreme authority. For this condition, if unfulfilled, makes the sponsion null and void, for the reason that conditions ought to be carried out exactly. And this applies per perfectly to the sponsion of Luctatius with the Carthaginians; there was the further fact that the people had declared that it was not bound by that sponsion, because it had been made without its order. And so another entirely new treaty was made with the public sanction.
2. Then the point should be investigated whether, in addition o silence, there is anything else having a bearing on the matter. ‘For silence, unless reinforced by some thing or act, does not supply a sufficiently probable basis for determining intent, as may be understood from what we have said above regarding the abandonment of ownership. But if in addition there shall have been certain acts’ which cannot with probability be referred to any other cause, then the agreement will be understood to have been ratified. Cicero notes, in the speech For Balbus, that in this way the treaty which had been made with the people of Gades was approved.
3. Against the Carthaginians the Romans pleaded their silence as regards the treaty compact with Hasdrubal. But since that compact had been expressed negatively, that the Carthaginians should not cross the Ebro river, it was hardly a case where silence alone should have the power to imply ratification of another’s act, since no act of their own would have followed except when some Carthaginian who wished to cross the Ebro had been hindered by the Romans, and the Carthaginian had obeyed their order. Such action, in fact, has the force of a positive act, and does not remain within purely negative limits. But if the compact signed by Luctatius had had more provisions, and it was apparent that the others, which were at variance with common rights, had always been observed by: the Romans, there would then have been a sufficiently strong implication of the approval of the compact.
4. It remains to say something here about the agreements which leaders or soldiers make, not concerning what belongs to the sovereign authority, but concerning their personal affairs, or matters entrusted to them. But there will be a better opportunity to treat’ of these matters when we come to the incidental occurrences of war.