CHAPTER 15: On Treaties and on Engagements Made by Delegates Exceeding 

their Power.



Public Conventions — Divided into treaties, engagements, and other 

compacts — Difference between treaties and the engagements made by 

delegates exceeding their powers — Treaties founded on the law of nature — 

Their origin — Treaties founded on still more extensive principles — 

Treaties with those, who are strangers to the true religion, prohibited 

neither by the Jewish nor Christian law — Cautious respecting such 

treaties — Christians bound to unite against the enemies of the Christian 

religion — Among a number of Allies in war, which of them have the first 

pretensions to assistance — Tacit renewal of treaties — The effect of 

perfidy in one of the contracting parties considered — How far the 

unauthorized engagements of delegates are binding, when the sovereigns 

refuse to ratify them — The Caudian Convention considered — Whether the 

knowledge and silence of the Sovereign makes those unauthorized 

conventions binding — The Convention of Luctatius considered.



I. ULPIAN has divided conventions into two kinds, public and private, and 

he has not explained a public convention upon the usual principles, but 

has confined it to a treaty of peace, which he alleges as his first 

example, and he has made use of the engagements entered into by the 

generals of two contending powers, as an instance of private conventions. 

By public conventions therefore he means those, which cannot be made but 

by the authority and in the name of the sovereign power, thus 

distinguishing them not only from the private contracts of individuals, 

but ALSO from the PERSONAL contracts of sovereigns themselves. And indeed 

private injuries and contracts, no less than public treaties frequently 

prove the origin of wars. And as private contracts have been already so 

amply discussed, the higher order of contracts, which come under the 

denomination of treaties, will necessarily form the leading part in our 

farther inquiries.



II. and III. Now public conventions may be divided into treaties, 

engagements, and other compacts.



The ninth book of Livy may be consulted on the distinction between 

treaties and engagements, where the historian informs us, that treaties 

are those contracts, which are made by the express authority of the 

sovereign power, and in which the people invoke the divine vengeance on 

their heads, if they violate their engagements. Among the Romans the 

persons employed in declaring war and making peace, were in the conclusion 

of these solemn treaties, always accompanied by the principal herald, who 

took the oath in the name of the whole people. A sponsio, or ENGAGEMENT, 

is what was made by persons, who had no express commission for that 

purpose from the sovereign power, and whose acts consequently required a 

further ratification from the sovereign himself.



The Senate of Rome, we are informed by Sallust, judged very properly in 

passing a decree, that no treaty could be' made without their consent and 

that of the people. Livy relates that Hieronymus, king of Syracuse, having 

entered into a convention with Hannibal, sent afterwards to Carthage to 

have it converted by the state into a league. For which reason Seneca the 

elder has said, applying the expression to persons invested with a special 

commission for that purpose, that a treaty, negotiated by the general, 

binds the whole of the Roman people, who are supposed to have made it. 



But in monarchies, the power of making treaties belongs to the king alone, 

a maxim which the language of poetry, no less than the records of history, 

shews to have been held in all ages. Euripides, whose sentiments are 

always conformable to nature, and popular opinion, in his Tragedy of the 

Suppliants, says, "It rests with Adrastus to take the oath, to whom, as 

sovereign, the sole right of binding the country by treaties belongs."



No subordinate magistrates have such a power of binding the people; nor 

will the acts of a smaller portion bind the greater, an argument used in 

favour of the Romans against the Gauls. For there was a majority of the 

people with Camillus, the dictator.



But it remains to be considered how far the acts of those, who have 

engaged for the people, without any public authority, are binding. Perhaps 

it may be said that the contracting parties have discharged their 

responsibility when they have done all in their power towards the 

fulfillment of their obligation. That might be the case in promises, but 

the obligation in public contracts is of a stricter kind. For the party 

contracting requires something in return for the engagements he makes. 

Hence the civil law, which rejects all promises made by one person for the 

performance of some act by another, renders him who engages for the 

ratification of a thing liable to pay damages and interest.



IV. The most accurate distinction in treaties, is that which makes the 

foundation of some rest purely upon the law of nature, and others upon the 

obligations, which men have either derived from the law of nature, or 

added to it. Treaties of the former kind are, in general, made, not only 

between enemies, as a termination of war; but in ancient times were 

frequently made, and, in some degree, thought necessary among men in the 

formation of every contract. This arose from that principle in the law of 

nature, which established a degree of kindred among mankind. Therefore it 

was unlawful for one man to be injured by another. And this natural 

justice universally prevailed before the deluge. But after that event, in 

process of time, as evil dispositions and habits gained ground, it was by 

degrees obliterated. So that one people's robbing and plundering another, 

even when no war had been commenced or declared, was deemed lawful. 

Epiphanius calls this the Scythian fashion. Nothing is more frequent in 

the writings of Homer than for men to be asked, if they are robbers? A 

question, as Thueydides informs us, by no means intending to convey 

reproach, but purely for information. In an ancient law of Solon's mention 

is made of companies formed for robbery: and, we find from Justin, that, 

till the times of Tarquin, piracy was attended with a degree of glory.



In the law of the Romans it was a maxim, that nations, which had not 

entered into terms of amity, or into treaties with them were not to be 

considered as enemies. But if any thing belonging to the Romans fell into 

their hands, it became theirs; or any citizen of Rome, taken by them, 

became a slave; and the Romans would treat any person belonging to that 

nation, in the same manner. In this case the right of postliminium is 

observed. So at a remote period, before the times of the Peloponnesian 

war, the Corcyraeans were not considered as enemies by the Athenians, 

though there was no treaty of peace subsisting between them, as appears 

from the speech of the Corinthians given by Thucydides. Aristotle commends 

the practice of plundering barbarians, and in ancient Latium an enemy 

signified nothing but a foreigner.



In the class of treaties referred to in this section may be ranked those 

made between different states for the mutual preservation of the rights of 

hospitality and commerce, as far as they come under the law of nature. 

Arco makes use of this distinction, in his speech to the Achaeans, as 

reported by Livy, where he says he does not require an offensive and 

defensive alliance, but only such a treaty as may secure their rights from 

infringement by each other, or prevent them from harbouring the fugitive 

slaves of the Macedonians. Conventions of this kind were called by the 

Greeks, strictly speaking, PEACE in opposition to TREATIES.



V. Treaties founded upon obligations added to those of the law of nature 

are either equal, or unequal Equal treaties are those, by which equal 

advantages are secured on both sides. The Greeks call them ALLIANCES, and 

sometimes alliances upon an equal scale. But treaties of the latter kind 

are more properly leagues than treaties, and where one of the parties is 

inferior in dignity, they are called INJUNCTIONS, or INJUNCTIONS ANNEXED 

TO COVENANTS. Demosthenes in his speech on the liberty of the Rhodians 

says, all nations ought to guard against forming such leagues, as 

approaching too near to servitude.



Treaties of both kinds, whether of peace or alliance are made from motives 

of some advantage to the parties. By equal treaties of peace, the 

restoration of prisoners, the restoration or cession of conquered places, 

and other matters providing for its due maintenance, are settled, a 

subject that will be more fully treated of hereafter, in stating the 

effects and consequences of war. Treaties of alliance upon equal 

conditions relate either to commerce, or to contributions for the joint 

prosecution of a war, or to other objects of equal importance. Equal 

treaties of commerce may vary in their terms. For instance it may be 

settled that no duties shall be imposed upon the goods of the subjects, 

belonging to each of the contracting powers: or that the duties upon their 

respective commodities shall be lower than the duties upon those of any 

other nation. The first of these examples may be found in an ancient 

treaty between the Romans and Carthaginians, in which there is a clause, 

making an exception of what is given to the notary and public crier. Or it 

may be settled that no higher duties than those existing at the time the 

treaty is made shall be imposed, or that they shall not be augmented 

beyond a certain rate.



So in alliances of war the contracting parties are required to furnish 

equal numbers of troops or ships, a kind of alliance which, as Thueydides 

explains it, calls upon the united powers to hold the same states for 

common enemies or friends: we find, in many parts of Livy, alliances of 

this description among states, for the mutual defence of their territories 

or for the prosecution of some particular war, or against some particular 

enemy, or against all states excepting their respective allies. Polybius 

has given a treaty of this kind, made between the Carthaginians and 

Macedonians. In the same manner the Rhodians bound themselves by treaty to 

assist Atigonus Demetrius against all enemies except Ptolemy. There are. 

other objects too for which equal treaties are made. Thus one power may 

bind another to build no forts in their neighbourhood which might prove an 

annoyance, to give no encouragement to rebellious subjects, to allow the 

troops of an enemy no passage through their country.



VI. From equal treaties, the nature of unequal treaties may easily be 

understood. And where two powers contract, this inequality may be on the 

side either of the superior, or of the inferior power. A superior power 

may be said to make an unequal treaty, when it promises assistance without 

stipulating for any return, or gives greater advantages than it engages to 

receive. And on the part of the inferior power this inequality subsists 

when, as Isocrates says in his PANEGYRIC, her privileges are unduly 

depressed; so that engagements of this kind may be called injunctions or 

commands rather than treaties. And these may, or may not, be attended with 

a diminution of their sovereign power.



Such a diminution of sovereign power followed the second treaty between 

the Carthaginians and Romans, by which the former were bound to make no 

war but with the consent of the Roman people; so that from that time, 

Appian says, the Carthaginians were compelled by treaty to comply with the 

humour of the Romans. To this kind may be added a conditional surrender, 

except that it leads not to a DIMINUTION, but to an ENTIRE TRANSFER of the 

sovereign dignity and power.



VII. The burdens attached to unequal treaties, where no diminution of 

sovereignty takes place, may be either transitory or permanent.



TRANSITORY burdens are those, by which the payment of certain sums of 

money is imposed, the demolition of certain works and fortifications, the 

cession of certain countries and the delivery of ships or hostages are 

required. But PERMANENT conditions are those, which require the tribute of 

homage and submission from one power to another.



Nearly approaching to such treaties are those, by which one power is 

debarred from having any friends or enemies, but at the pleasure of 

another, or from allowing a passage and supplies to the troops of any 

state, with whom that power may be at war. Besides these there may be 

conditions of an inferior and less important kind; such as those, which 

prohibit the building of forts in certain places; maintaining armies, or 

having ships beyond a certain number; navigating certain seas, or raising 

troops in certain countries; attacking allies or supplying enemies. Some 

conditions indeed go so far as to prohibit a state from admitting 

refugees, and to demand annulling all former engagements with every other 

power. Numerous examples of such treaties are to be found in historians 

both ancient and modern.



Unequal treaties may be made not only between the conquerors and the 

conquered but also between mighty and impotent states, between whom no 

hostilities have ever existed.



VIII. In considering treaties, it is frequently asked, whether it be 

lawful to make them with nations, who are strangers to the Christian 

religion; a question, which, according to the law of nature, admits not of 

a doubt. For the rights, which it establishes, are common to all men 

without distinction of religion.



The gospel has made no change in this respect, but rather favours 

treaties, by which assistance in a just cause may be afforded even to 

those, who are strangers to religion. For to embrace opportunities of 

doing good to all men is not only permitted as laudable, but enjoined as a 

precept. For in imitation of God, who makes his sun to rise upon the 

righteous and the wicked, and refreshes them both with his gracious rain, 

we are commanded to exclude no race of men from their due share of our 

services. Yet, in equal cases, it admits of no doubt, that those within 

the pale of our own religious communion have a preferable claim to our 

support.



IX. In addition to the foregoing arguments we may observe that as all 

Christians are considered as members of one body, which are required to 

feel for the pains and sufferings of each other, this precept applies not 

only to individuals, but to nations and kings in their public capacity. 

For the rule of duty is not to be measured by the inclination of 

individuals, but by the injunctions of Christ. And in some cases the 

ravages of an impious enemy can only be opposed by a firm alliance among 

Christian kings, and governments. And it is a duty from which nothing, but 

inevitable necessity, and their immediate attention being engrossed by the 

prosecution of other wars, can excuse them. 



X. Another question frequently arises, which is, when two states are 

engaged in war with each other, to which of them a power, equally allied 

to both, ought in preference to give assistance. Here too we must observe 

there can be no obligation to support unjust wars. On which account that 

confederate power, which has justice on its side, will have a claim to 

preference, if engaged in war with another not comprehended in the number 

of confederates, or even if engaged with one of the confederates 

themselves.



But if two powers engage in a war, equally unjust on both sides, a third 

power, united in confederacy with both, will prudently abstain from 

interference. Again, if two powers allied to us are engaged in a just war 

against others, with whom we have no connection; in the supplies of men or 

money that we furnish to either we ought to follow the rule, observed in 

the case of personal creditors.



But if personal assistance, which cannot be divided, is required of the 

contracting party, in that case the preference must be given to the 

engagements of the longest standing. However the case of a subsequent 

treaty, which makes the engagements of a more binding and extensive 

nature, will form an exception to this rule.



XI. The tacit renewal of a treaty ought not to be presumed upon at the 

expiration of the period, limited for its continuance, unless certain acts 

be performed, which can expressly be construed as a renewal of it, and can 

be taken in no other sense.



XII. If one of the parties violates a treaty, such a violation releases 

the other from its engagements. For every clause has the binding force of 

a condition. And as an example of this, a passage from Thucydides may be 

quoted, where that historian says that "for one power to accede to a new 

confederacy, and to desert an ally who has neglected to fulfil his 

engagements, is no breach of a treaty; but not to assist another power in 

conformity to sworn engagements amounts to a violation thereof." And this 

is generally true, except where it has been agreed to the contrary, that a 

treaty shall not be null and relinquished for trifling disgusts and 

miscarriages.



XIII. Conventions are as various and numerous as treaties, and the 

distinction made between them is owing more to the difference of power in 

those by whom they are made, than to any real difference in their own 

nature. But there are two particular points of inquiry materially 

connected with all conventions, the first of which relates to the extent 

of the negotiator's obligation, when the sovereign or the state refuses to 

ratify a convention, whether he is bound to make an indemnity to the other 

party for the disappointment, to restore things to the situation they were 

in before he treated, or to deliver up his own person. The first opinion 

seems conformable to the Roman civil law, the second to equity as it was 

urged by the tribunes of the people, L. Livius, and J. Melius, in the 

dispute about the peace of Caudium; but the third is that most generally 

adopted, as was done respecting the two famous conventions of Caudium and 

Numantia. But there is one caution particularly to be observed, and that 

is, that the sovereign is no way bound by such unauthorised conventions, 

until he has ratified them. In the convention alluded to, if the Samnites 

had intended to bind the Roman people, they should have retained the army 

at Caudium, and sent ambassadors to the senate and people at Rome, to 

discuss the treaty, and learn upon what terms they chose to redeem their 

army.



XIV. Another question is, whether the knowledge and silence of the 

sovereign bind him to the observance of a convention. But here it is 

necessary to make a distinction between an absolute convention, and one 

made upon condition of its being ratified by the sovereign. For as all 

conditions ought to be literally fulfilled, such a condition, on failure 

of fulfillment, becomes void.



This principle was very properly observed in the convention made between 

Luctatius and the Carthaginians; to which the people refused to accede, as 

it had been made without their consent. A new treaty therefore was made by 

public authority.



The next thing to be considered is, whether there may not be some act of 

consent besides silence. For without some visible act, silence is not of 

itself sufficient to warrant a probable conjecture of intention. But if 

certain acts are done which can be accounted for upon no other grounds 

than those of consent, they are supposed to ratify a treaty. Thus if the 

convention of Luctatius had contained many clauses, some of them 

relinquishing certain rights, and those clauses had been always duly 

observed by the Romans, such observance would be justly taken for a 

ratification of the treaty.