The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Of Other Public Conventions; of Those That Are Made by Subordinate Powers; Particularly of the Agreement Called in Latin Sponsio; and of Conventions of Sovereigns with Private Persons
§ 206. Conventions made by sovereigns.
THE public compacts, called conventions, articles of agreement, etc., when they are made between sovereigns, differ from treaties only in their object (§ 153). What we have said of the validity of treaties, of their execution, of their dissolution, and of the obligations and rights that flow from them, is all applicable to the various conventions which sovereigns may conclude with each other. Treaties, conventions, and agreements are all public engagements, in regard to which there is but one and the same right, and the same rules. We do not here wish to disgust the reader by unnecessary repetitions: and it were equally unnecessary to enter into an enumeration of the various kinds of these conventions, which are always of the same nature, and differ only in the matter which constitutes their object.
§ 207. Those made by subordinate powers.
But there are public conventions made by subordinate powers, in virtue either of an express mandate from the sovereign, or of the authority with which they are invested by the terms of their commission, and according as the nature of the affairs with which they are intrusted may admit or require the exercise of that authority.
The appellation of inferior or subordinate powers is given to public persons who exercise some portion of the sovereignly in the name and under the authority of the sovereign: such are magistrates established for the administration of justice, generals of armies, and ministers of state.
When, by an express order from their sovereign on the particular occasion, and with sufficient powers derived from him for the purpose those persons form a convention, such convention is made in the name of the sovereign himself, who contracts by the mediation and ministry of his delegate or proxy: this is the case we have mentioned in § 156.
But public persons, by virtue of their office, or of the commission given to them, have also themselves the power of making conventions on public affairs, exercising on those occasions the right and authority of the sovereign by whom they are commissioned. There are two modes in which they acquire that power; it is given to them in express terms by the sovereign: or it is naturally derived from their commission itself, the nature of the affairs with which these persons are intrusted, requiring that they should have a power to make such conventions, especially in cases where they cannot await the orders of their sovereign. Thus, the governor of a town, and the general who besieges it, have a power to settle the terms of capitulation; and whatever agreement they thus form within the terms of their commission, is obligatory on the state or sovereign who has invested them with the power by which they conclude it. As conventions of this nature take place principally in war, we shall treat of them more at large in Book III.
§ 208. Treaties concluded by a public person, without orders from the sovereign, or without sufficient powers.
If a public person, an ambassador, or a general of an army, exceeding the bounds of his commission, concludes a treaty or a convention without orders from the sovereign, or without being authorized to do it by virtue of his office, the treaty is null, as being made without sufficient powers (§ 157); it cannot become valid without the express or tacit ratification of the sovereign. The express ratification is a written deed by which the sovereign approves the treaty, and engages to observe it. The tacit ratification is implied by certain steps which the sovereign is justly presumed to take only in pursuance of the treaty, and which he could not be supposed to take without considering it as concluded and agreed upon. Thus, on a treaty of peace being signed by public ministers who have even exceeded the orders of their sovereigns, if one of the sovereigns causes troops to pass on the footing of friends through the territories of his reconciled enemy, he tacitly ratifies the treaty of peace. But if, by a reservatory clause of the treaty, the ratification of the sovereign be required, as such reservation is usually understood to imply an express ratification, it is absolutely requisite that the treaty he thus expressly ratified before it can acquire its full force.
§ 209. The agreement called sponsio.
By the Latin term sponsio, we express an agreement relating to affairs of state, made by a public person, who exceeds the bounds of his commission, and acts without the orders or command of the sovereign. The person who treats for the state in this manner without being commissioned for the purpose, promises of course to use his endeavors for prevailing on the state or sovereign to ratify the articles he has agreed to: otherwise his engagement would be nugatory and illusive. The foundation of this agreement can be no other, on either side, than the hope of such ratification.
The Roman history furnishes us with various instances of such agreements: the one that first arrests our attention is that which was concluded at the Furcæ Caudinæ the most famous instance on record, and one that has been discussed by the most celebrated writers. The consuls Titus Veturius Calvinus and Spurius Postumius, with the Roman army, being enclosed in the defiles of the Furcæ Caudinæ, without hope of escaping, concluded a shameful agreement with the Samnites informing them, however, that they could not make a real public treaty (fdus) without orders from the Roman people, without the feciales, and the ceremonies consecrated by custom. The Samnite general contented himself with exacting a promise from the consuls and principal officers of the army, and obliging them to deliver him six hundred hostages; after which, having made the Roman troops lay down their arms, and obliged them to pass under the yoke, he dismissed them. The senate, however, refused to accede to the treaty, delivered up those who had concluded it to the Samnites, who refused to receive them and then though themselves free from all obligation, and screened from all reproach.1 Authors have entertained very different sentiments of this conduct. Some assert, that, if Rome did not choose to ratify the treaty, she ought to have replaced things in the same situation they were in before the agreement, by sending back the whole army to their encampment at the Furcæ Caudinæ: and this the Samnites also insisted upon. I confess that I am not entirely satisfied with the reasonings I have found on this question, even in authors whose eminent superiority I am in other respects fully inclined to acknowledge. Let us therefore endeavor, with the aid of their observations, to set the affair in a new light.
§ 210. The state is not bound by such an agreement.
It presents two questions first, what is the person bound to do, who has made an agreement (sponsor), if the state disavows it? Secondly, what is the state bound to do? But, previous to the discussion of these questions, it is necessary to observe with Grotius,2 that the state is not bound by an agreement of that nature. This is manifest, even from the definition of the agreement called sponsio. The state has not given orders to conclude it: neither has she in any manner whatever conferred the necessary powers for the purpose: she has neither expressly given them by her injunctions or by a plenipotentiary commission, nor tacitly by a natural or necessary consequence of the authority intrusted to him who makes the agreement (sponsori). The general of an army has, indeed, by virtue of his commission, a power to enter, as circumstances may require, into a private convention a compact relative to himself, to his troops, or to the occurrences of war: but he has no power to conclude a treaty of peace. He may bind himself, and the troops under his command, on all the occasions where his functions require that he should have the power of treating; but he cannot bind the state beyond the extent of his commission.
§ 211. To what the promisor is bound when it is disavowed.
Let us now see to what the person promising (sponsor) is bound, when the state disavows the agreement. We ought not here to deduce our arguments from the rules which obtain between private individuals under the law of nature: for, the nature of the things in question, and the situation of the contracting parties, necessarily make a difference between the two cases. It is certain that, between individuals, he who purely and simply promises what depends on the will of another, without being authorized to make such promise, is obliged, if the other disavows the transaction, to accomplish himself what he has promised, to give an equivalent to restore things to their former state; or, finally, to make full compensation to the person with whom he has treated, according to the various circumstances of the case. His promise (sponsio) can be understood in no other light. But this is not the case with respect to a public person, who, without authority, engages for the performance of his sovereign. The question in such case relates to things that infinitely surpass his power and all his faculties things which he can neither execute himself nor cause to be executed, and for which he cannot offer either an equivalent or a compensation in any wise adequate: he is not even at liberty to give the enemy what he has promised, without authority: finally, it is equally out of his power to restore things entirely to their former state. The party who treats with him cannot expect any thing of this nature. If the promisor has deceived him by saying he was sufficiently authorized, he has a right to punish him. But if, like the Roman consuls at the Furcæ Caudinæ, the promisor has acted with sincerity, informing him that he had not a power to bind the state by a treaty, nothing else can be presumed, but that the other party was willing to run the risk of making a treaty that must become void, if not ratified, hoping that a regard for him who had promised, and for the hostages, would induce the sovereign to ratify what had been thus concluded. If the event deceives his hopes, he can only blame his own imprudence. An eager desire of obtaining peace on advantageous conditions, and the temptation of some present advantages, may have been his only inducements to make so hazardous an agreement. This was judiciously observed by the consul Postumius himself, after his return to Rome. In his speech to the senate, as given to us by Livy, “Your generals,” said he, “and those of the enemy, were equally guilty of imprudence, we, in incautiously involving ourselves in a dangerous situation they, in suffering a victory to escape them, of which the nature of the ground gave them a certainty; still distrusting their own advantages, and hastening, at any price, to disarm men who were ever formidable while they had arms in their hands. Why did they not keep us shut up in our camp? Why did they not send to Rome, in order to treat for peace, on sure grounds, with the senate and the people?”
It is manifest that the Samnites contented themselves with the hope that the engagement which the consuls and principal officer had entered into, and the desire of saving six hundred knights, left as hostages, would induce the Romans to ratify the agreement, considering, that, at all events, they should still have those six hundred hostages, with the arms and baggage of the army, and the vain, or rather, as it is proved by its consequences, the fatal glory, of having made them pass under the yoke.
Under what obligation then were the consuls, and all the others who had joined with them in the promise (sponsores)? They themselves judged that they ought to be delivered up to the Samnites. This was not a natural consequence of the agreement (sponsionis); and from the observations above made, it does not appear that a general in such circumstances, having promised things which the promisee well knew to be out of his power, is obliged, on his promise being disavowed, to surrender his own person by way of compensation. But, as he has a power expressly to enter into such an engagement which lies fairly within the bounds of his commission, the custom of those times had doubtless rendered such engagement a tacit clause of the agreement called sponsio, since the Romans delivered up all the sponsores, all those who had promised: this was a maxim of their fecial law.3
If the sponsor has not expressly engaged to deliver himself up, and if established custom does not lay him under an obligation to do so, it would seem that he is bound to nothing further by his promise than honestly to endeavor, by every lawful means, to induce the sovereign to ratify what he has promised: and there cannot exist a doubt in the case, provided the treaty be at all equitable, advantageous to the state, or supportable in consideration of the misfortune from which it has preserved her. But, to set out with the intention of making a treaty the instrument to ward off a deadly blow from the state, and soon after to advise the sovereign to refuse his ratification, not because the treaty is insupportable, but because an advantage may be taken of its having been concluded without authority such a proceeding would undoubtedly be a fraudulent and shameful abuse of the faith of treaties. But, what must the general do, who, in order to save his army, has been forced to conclude a treaty that is detrimental or dishonorable to the state? Must he advise the sovereign to ratify it? He will content himself with laying open the motives of his conduct, and the necessity that obliged him to treat: he will show, as Postumius did, that he alone is bound, and that he consents to be disowned and delivered up for the public safety. If the enemy are deceived, it is through their own folly. Was the general bound to inform them that, in all probability, his promises would not be ratified? It would be too much to require this of him. In such a case, it is sufficient that he does not impose on the enemy by pretending to more extensive powers than he really possesses, but contents himself with embracing the overtures which they make to him, without, on his side, holding forth any delusive hopes to decoy them into a treaty. It is the enemy’s business to take all possible precautions for their own security; if they neglect them, why should not the general avail himself of the imprudence, as of an advantage presented to him by the hand of fortune? “It is she,” said Postumius, “who has saved our army, after having put it in danger. The enemy’s head was turned in his prosperity; and his advantages have been no more to him than a pleasant dream.”
If the Samnites had only required of the Roman generals and army such engagements as the nature of their situation, and their commission, empowered them to enter into, if they had obliged them to surrender themselves prisoners of war, or if, from their inability to hold them all prisoners, they had dismissed them, upon their promise not to bear arms against them for some years, in case Rome should refuse to ratify the peace, the agreement would have been valid, as being made with sufficient powers; and the whole army would have been bound to observe it; for, it is absolutely necessary that the troops, or their officers, should have a power of entering into a contract on those occasions, and upon that footing. This is the case of capitulations, of which we shall speak in treating of war.
If the promisor has made an equitable and honorable convention, on an affair of such a nature, that, in case the convention be disallowed, he still has it in his own power to indemnify the party with whom he has treated. he is presumed to have personally pledged himself for such indemnification; and he is bound to make it, in order to discharge his promise, as did Fabius Maximus in the instance mentioned by Grotius,4 But there are occasions when the sovereign may forbid him to act in that manner, or to give any thing to the enemies of the state.
§ 212. To what the sovereign is bound.
We have shown that a state cannot be bound by an agreement made without her orders, and without her having granted any power for that purpose. But is she absolutely free from all obligation? That is the point which now remains for us to examine. If matters as yet continue in their original situation, the state or the sovereign may simply disavow the treaty, which is of course done away by such disavowal, and becomes as perfect a nullity as if it had never existed, But the sovereign ought to make known his intentions as soon as the treaty comes to his knowledge: not indeed, that his silence alone can give validity to a convention which the contracting parties have agreed not to consider as valid without his approbation; but it would be a breach of good faith in him to suffer a sufficient time to elapse for the other party to execute, on his side, an agreement which he himself is determined not to ratify.
If any thing has already been done in consequence of the agreement, if the party, who has treated with the sponsor, has on his side fulfilled his engagements, either in the whole or in part, is the other party, on disavowing the treaty, bound to indemnify him, or restore things to their former situation? or is he allowed to reap the fruits of the treaty, at the same time that he refuses to ratify it? We should here distinguish the nature of the things that have been executed, and that of the advantages which have thence accrued to the state. He who, having treated with a public person not furnished with sufficient powers, executes the agreement on his side without waiting for its ratification, is guilty of imprudence, and commits an egregious error, into which he has not been led by the state with which he supposes he has contracted. If he has given up any part of his property, the other party is not justifiable in taking advantage of his folly, and retaining possession of what he has so given. Thus, when a state, thinking she has concluded a peace with the enemy’s general, has in consequence delivered up one of her strong places, or given a sum of money, the sovereign of that general is, undoubtedly, bound to restore what he has received, if he does not choose to ratify the agreement. To act otherwise, would be enriching himself with another’s property, and retaining that property without having any title to it.
But, if the agreement has given nothing to the state which she did not before possess, if, as in that of the Furcæ Caudinæ, the advantage simply consists in her escape from an impending danger, her preservation from a threatened loss, such advantage is a boon of fortune, which she may enjoy without scruple. Who would refuse to be saved by the folly of his enemy? And who would think himself obliged to indemnify that enemy for the advantage he had suffered to escape him, when no fraud had been used to induce him to forego that advantage? The Samnites pretended, that, if the Romans would not ratify the treaty made by their consuls, they ought to send back the army to the Furcæ Caudinæ, and restore every thing to its former state. Two tribunes of the people, who had been in the number of the sponsores, and wished to avoid being delivered up, had the assurance to maintain the same doctrine; and some authors have declared themselves of their opinion. What! the Samnites take advantage of conjunctures, in order to give law to the Romans, and to wrest from them a shameful treaty, they are so imprudent as to treat with the consuls, who expressly declare themselves unauthorized to contract for the state, they suffer the Roman army to escape, after having covered them with infamy, and shall not the Romans take advantage of the folly of an enemy so void of generosity? Must they either ratify a shameful treaty, or restore to the enemy all those advantages which the situation of the ground had given them, but which he had lost merely through his own folly? Upon what principle can such a decision be founded? Had Rome promised any thing to the Samnites? Had she prevailed upon them to let her army go, previous to the ratification of the agreement made by the consuls? If she had received any thing in consequence of that agreement, she would have been bound to restore it, as we have already said, because she would have possessed it without a title, on declaring the treaty null. But she had no share in the conduct of her enemies: she did not contribute to the egregious blunder they had committed; and she might as justly take advantage of it, as generals in war do of the mistakes of an unskillful opponent. Suppose a conqueror after having concluded a treaty with ministers who have expressly reserved the ratification to their master, should have the imprudence to abandon all his conquests without waiting for such ratification, must the other, with a foolish generosity, invite him back to take possession of them again, in case the treaty be not ratified?
I confess, however, and freely acknowledge, that, if the enemy who suffer an entire army to escape on the faith of an agreement concluded with the general, who is unprovided with sufficient powers, and a simple sponsor, I confess, I say, that if the enemy have behaved generously, if they had not availed themselves of their advantages to dictate shameful or too severe conditions, equity requires that the estate should either ratify the agreement or conclude a new treaty on just and reasonable conditions, abating even of her pretensions as far as the public welfare will allow. For, we ought never to abuse the generosity and noble confidence even of an enemy. Pufendorf5 thinks that the treaty at the Furcæ Caudinæ contained nothing that was too severe or insupportable. That author seems to make no great account of the shame and ignominy with which it would have branded the whole republic. He did not see the full extent of the Roman policy, which would never permit them, in their greatest distresses, to accept a shameful treaty, or even to make peace on the footing of a conquered nation: a sublime policy, to which Rome was indebted for all her greatness.
Finally, let us observe, that when the inferior power has, without orders, and without authority, concluded an equitable and honorable treaty, to rescue the state from an imminent danger, if the sovereign afterwards, on seeing himself thus delivered, should refuse to ratify the treaty, not because he thinks it a disadvantageous one, but, merely through a wish to avoid performing those conditions which were annexed as the price of his deliverance, he would certainly act in opposition to all the rules of honor and equity. This would be a case in which we might apply the maxim, summum jus, summa injuria.
To the example we have drawn from the Roman history, let us add a famous one taken from modem history. The Swiss, dissatisfied with France, entered into an alliance with the emperor against Louis XII. and made an irruption into Burgundy, in the year 1513. They laid siege to Dijon. La Trimouille, who commanded in the place, fearing that he should be unable to save it, treated with the Swiss, and, without waiting for a commission from the king, concluded an agreement, by virtue of which the king of France was to renounce his pretensions to the duchy of Milan, and to pay the Swiss, by settled installments, the sum of six hundred thousand crowns; whereas the Swiss, on their side, promised nothing further than to return home to their own country, thus remaining at liberty to attack France again, if they thought proper. They received hostages, and departed. The king was very much dissatisfied with the treaty, though it had saved Dijon, and rescued the kingdom from an imminent and alarming danger; and he refused to ratify it.”6 It is certain that La Trimouille had exceeded the powers he derived from his commission, especially in promising that the king should renounce the duchy of Milan. It is probable, indeed, that his only view was to rid himself of an enemy whom it was less difficult to overreach in negotiation than to subdue in battle. Louis was not obliged to ratify and execute a treaty concluded without orders and without authority; and, if the Swiss were deceived, they could only blame their own imprudence. But, as it manifestly appeared that La Trimouille did not behave towards them with candor and honesty, since he had deceived them on the subject of the hostages, by giving, in that character, men of the meanest rank, instead of four of the most distinguished citizens, as he had promised,7 the Swiss would have been justifiable in refusing to make peace without obtaining satisfaction for that act of perfidy, either by the surrender of him who was the author of it, or in some other manner.
§ 213. Private contracts of the sovereign.
The promises, the conventions, all the private contracts of the sovereign, are naturally subject to the same rules as those of private persons. If any difficulties arise on the subject, it is equally conformable to the rules of decorum, to that delicacy of sentiment which ought to be particularly conspicuous in a sovereign, and to the love of justice, to cause them to be decided by the tribunals of the state. And such indeed is the practice of all civilized states that are governed by settled laws.
§ 214. Contracts made by him with private persons in the name of the state.
The conventions and contracts which the sovereign, in his sovereign character and in the name of the state, forms with private individuals of a foreign nation, fall under the rules we have laid down with respect to public treaties. In fact, when a sovereign enters into a contract with one who is wholly independent of him and of the state, whether it be with a private person, or with a nation or sovereign, this circumstance does not produce any difference in the manner of deciding the controversies which may arise from the contract. That private person, being a subject of the state, is obliged to submit his pretensions to the established courts of justice. It is added by some writers on this subject, that the sovereign may rescind those contracts, if they prove inimical to the public welfare. Undoubtedly he may do so, but not upon any principle derived from the peculiar nature of such contracts: it must be either upon the same principle which invalidates even a public treaty when it is ruinous to the state and inconsistent with the public safety, or by virtue of the eminent domain, which gives the sovereign a right to dispose of the property of the citizens with a view to the common safety. We speak here of an absolute sovereign. It is from the constitution of each state that we are to learn who are the persons, and what is the power, entitled to contract in the name of the state, to exercise the supreme authority, and to pronounce on what the public welfare requires.
§ 215. They are binding on the nation, and on his successors.
When a lawful power contracts in the name of the state, it lays an obligation on the nation itself, and consequently on all the future rulers of the society. When, therefore, a prince has the power to form a contract in the name of the state, he lays an obligation on all his successors; and these are not less bound than himself to fulfill his engagements.
§ 216. Debts of the sovereign and the state.
The conductor of the nation may have dealings of his own, and private debts; and his private property alone is liable for the discharge of such debts. But loans contracted for the service of the state, debts incurred in the administration of public affairs, are contracts in all the strictness of law, and obligatory on the state and the whole nation, which is indispensably bound to discharge those debts.8 When once they have been contracted by lawful authority, the right of the creditor is indefeasible. Whether the money borrowed has been turned to the advantage of the state, or squandered in foolish expenses, is no concern of the person who has lent it: he has intrusted the nation with his property, and the nation is bound to restore it to him again: it is so much the worse for her, if she has committed the management of her affairs to improper hands.
This maxim, however, has its bounds, founded even on the nature of the thing. The sovereign has not, in general, a power to render the state or body corporate liable for the debts he contracts, unless they be incurred with a view to the national advantage, and in order to enable him to provide for all occurrences. If he is absolute, it belongs to him alone to decide, in all doubtful cases, what the welfare and safety of the state require. But, if he should, without necessity, contract debts of immense magnitude and capable of ruining the nation for ever, there could not then exist any doubt in the case: the sovereign has evidently acted without authority; and those who have lent him their money have imprudently risked it. It cannot be presumed that a nation has ever consented to submit to utter ruin through the caprice and foolish prodigality of her ruler.
As the national debts can only be paid by contributions and taxes, wherever the sovereign has not been intrusted by the nation with a power to levy taxes and contributions, or, in short, to raise supplies by his own authority, neither has he a power to render her liable for what he borrows, or to involve the state in debt. Thus, the king of England, who has the right of making peace and war, has not that of contracting national debts, without the concurrence of parliament: because he cannot, without their concurrence, levy any money on his people.
§ 217. Donations of the sovereign.
The case is not the same with the donations of the sovereign as with his debts. When a sovereign has borrowed without necessity, or for an unwise purpose, the creditor has intrusted the state with his property; and it is just that the state should restore it to him, if at the time of the transaction, he could entertain a reasonable presumption that it was to the state he was lending it. But, when the sovereign gives away any of the property of the state, a part of the national domain, a considerable fief, he has no right to make such grant except with a view to the public welfare, as a reward for services rendered to the state, or for some other reasonable cause, in which the nation is concerned: if he has made the donation without reason, and without a lawful cause, he has made it without authority. His successor, or the state, may at any time revoke such a grant; nor would the revocation be a wrong done to the grantee, since it does not deprive him of any thing which he could justly call his own. What we here advance holds true of every sovereign whom the law does not expressly invest with the free and absolute disposal of the national property: so dangerous a power is never to be founded on presumption.
Immunities and privileges conferred by the mere liberality of the sovereign, are a kind of donation, and may be revoked in the same manner, if they prove detrimental to the state. But a sovereign cannot revoke them by his bare authority, unless he be absolute: and, even in this case, he ought to be cautious and moderate in the exertion of his power, uniting an equal share of prudence and equity on the occasion. Immunities granted for particular reasons, or with a view to some return, partake of the nature of a burdensome contract, and can only be revoked in case of abuse, or when they become incompatible with the safety of the state. And if they be suppressed on this latter account, an indemnification is due to those who enjoyed them.
1. Livy, lib. ix.
2. De Jure Belli et Pacis. lib. ii. cap. xv. § 16.
3. I have said in my preface, that the fecial law of the Romans was their law of war. The college of the feciales were consulted on the causes that might authorize the nation to engage in a war, and on the questions to which it gave rise. They had also the care of the ceremonies on the declaration of war, and on concluding treaties of peace. The feciales were likewise consulted, and their agency employed, in all public treaties.
4. Lib. ii. chap. xv. § 16. Fabius Maximus having concluded an agreement with the enemy which the senate disapproved sold a piece of land for which he received two hundred thousand sesterces, in order to make good his promise. It related to the ransom of the prisoners. Aurel. Victor, de Viris Illustr. Plutarch’s Life of Fabius Maximus.
5. Jus Nat. et Gent. lib. viii. cap. ix. § 12.
6. Guicciardini, book xii. chap. ii. De Watteville’s History of the Helvetic Confederacy, part ii. p. 185, etc.
7. See De Watteville’s History of the Helvetic Confederacy, p. 190.
8. In 1596, Philip II. declared himself a bankrupt, under pretense that an unfair advantage had been taken of his necessities. His creditors loudly exclaimed against his conducl, and asserted that no confidence could thenceforward be placed either in his word or his treaties, since he interposed the royal authority to supersede them. He could no longer find any one who was willing to lend him money; and his affairs suffered so severely in consequence, that he was obliged to replace things on their former footing, and to heal the wound which he had given to the public faith, Grotius, Hist. of Disturbances in Netherlands, book.