Front Page Titles (by Subject) DEFINITION XII: Obligation is an operative moral quality by which some one is bound to furnish, allow, or endure something. - Two Books of the Elements of Universal Jurisprudence
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DEFINITION XII: Obligation is an operative moral quality by which some one is bound to furnish, allow, or endure something. - Samuel von Pufendorf, Two Books of the Elements of Universal Jurisprudence 
Two Books of the Elements of Universal Jurisprudence, translated by William Abbott Oldfather, 1931. Revised by Thomas Behme. Edited and with an Introduction by Thomas Behme (Indianapolis: Liberty Fund, 2009).
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Obligation is an operative moral quality by which some one is bound to furnish, allow, or endure something.
1. With this definition agrees that common one of the jurisconsults in which they define obligation as a bond of right whereby we are bound by the necessity of furnishing something.1 For it places, as it were, a kind of moral bridle upon our liberty of action, so that we are unable rightly to turn in a direction different from that to which obligation leads; although no obligation has the natural efficacy of so binding the natural liberty of our will that, at least in fact, it cannot go in another direction. Now obligation can be divided on the principle of origin into congenital and adventitious. The former exists in all men by virtue of the fact that they are such, from the moment of birth onwards, showing itself to the full as soon as through advancing years they begin to understand its force and to be able to modify their acts by the use of reason. In this class there is listed that obligation of all men towards God as the Supreme Lord of this universe, by the force of which obligation we are bound to recognize and to venerate His rule and to observe the laws which He has given us;2 likewise, the obligation of all men towards all men whatsoever as such, by virtue of which they ought to employ the law of nature in their relations with one another, and to live a social life.3 Adventitious obligations are those which are voluntarily assumed by men after birth, or else are enjoined by the command [imperio] of a superior, or by law.
2. In the next place obligation, in consideration of the subjects, is either of equality or of inequality. We call the obligation of inequality that which makes him to whom something is owed by us in virtue of it our superior, and brings some authority or sovereignty upon us. Such is subjection, or that obligation by which a man is bound to furnish what has been enjoined upon him by another in virtue of his sovereignty. This can be divided into universal obligation, whereby every man whatsoever is bound to yield obedience to God, and particular obligation, whereby definite men are beholden to definite men. This again is either public, whereby one is subject to the public sovereignty of some one; or private, whereby we are placed under the private sovereignty of some one. Both are either limited, as the subjection of a wife, a son, a ward, a hired servant, &c.; or unlimited, as the subjection whereby citizens are bound to the state,4 and complete personal servitude, whereby a man is bound to devote his profitable actions wholly to the use and pleasure of another. Both these obligations, however, yield precedence to the obligation towards God, and even to the obligation towards the state, when it is impossible to satisfy both at the same time.
3. In respect of the efficacy, moreover, which it exerts in human society, obligation is either perfect or imperfect. To the former, in the case of a second person to whom it pertains, corresponds perfect right, whereby he is granted an action against us in a human court of law; to the latter, in the case of a second person to whom it pertains, corresponds only an imperfect right, whereby he is not granted an action against us in a human court of law. Why that results we shall set forth a little later on.
4. Furthermore, as regards duration, certain obligations are perpetual, certain others temporary. The former cannot be done away with as long as the persons in whom they inhere exist. Such is the congenital obligation towards God and towards all men whatsoever as such, an obligation which no man can put off as long as he is a man. For, although, when another does not observe the law of nature towards me, I myself am not bound to observe it towards him, but may use force upon him, and therefore the law of war; and that because this obligation is mutual, and when it is broken on one side it is no longer binding upon the other, wherefore the exercise of that obligation, at least in regard to most of the commands of the law of nature, whereby it is commanded that duties to the other party be performed, is suspended (as we shall show at greater length in Book II); nevertheless, this stands forever, namely, that, as soon as consideration for our own safety allows, we ought to be ready once more to observe the law of nature and to cultivate peace with him.5 This is the nature of all obligations which result from commands or affirmative laws, that they bid men be ready to perform their acts as often as there is occasion to put them into operation; but to cease from putting them into operation when either there is no object to receive them, or the object suffers from an evil disposition, or when a closer obligation leaves no place for one which is more remote; just as here the care of my own safety does not at all allow me to take account of the safety of him who is coming to attack it unjustly.
Now among adventitious obligations there can be listed here the debt of honour and gratitude on the part of children towards parents, which in due course does not cease as long as the latter are among the living, although it might appear that cases could arise in which that obligation would utterly disappear; that is to say, when parents, without any compulsion of necessity, cast aside all care for the child born to them and expose it destitute of all human aid; or when, in later years, they shamefully neglect its education, or are otherwise heartlessly proceeding to destroy its well-being. For that obligation on the part of children proceeds primarily from the law of gratitude, and this regards antecedent benefactions. And, indeed, neither can parents impute to the offspring that bare act of generation, because, forsooth, in that act they were scarcely seeking anything else than their own pleasure; nor can a mother, although in gestation and delivery she has suffered great discomforts, be regarded as having done a benefaction if she brings forth a child merely to cast it away, or, by neglecting its education, to allow it to contract base habits. And I am regarded as remitting the debt of returning gratitude in the case of him with whom I myself strive to destroy the favour of my benefactions by harsh treatment.
But the bond of marriage has by the divine positive law this one peculiarity, namely, that, as long as the essence of the conjugal pact has not been violated, it cannot be dissolved, like other temporary obligations, by the consent of both parties. For otherwise it has this in common with other pacts, namely, that, if its essential feature be violated on one side, the other is no longer bound to abide by it. But the essential feature of marriage consists in this, namely, that the husband grants to the wife the right to his body, and the wife to the husband, and she, besides, to no one else. When this feature has been violated even the divine law grants the right of divorce.6
Temporary obligations are those which can be ended while the persons in whom they inhere are still alive. How that may take place will be set forth below.
5. As for respect of obligations, whereby they correspond to one another, obligation is either mutual or non-mutual. It is non-mutual when one person, indeed, is bound to furnish something to another, in such wise, however, that in that other person to whom something is owed, there is no obligation corresponding to it, and binding him to furnish an equivalent. Such is the obligation of men towards God, whereby they, indeed, owe Him absolute obedience, but He is in no way bound to furnish them anything in return for that obedience, as on the force of some obligation which devolves upon Him from outside. For whatever He furnishes men comes from His own gratuitous benevolence.
Now of the obligations which obtain mutually among men, none seems to be of the character of the foregoing, and that because it is repugnant to the natural equality of men among one another for one to be bound to another in such a way that the latter is in his turn bound to the former in no way at all. That all men should, indeed, in actual fact be equal as far as their adventitious states and authority go, nature does not intend, as long as she destines man to life as a social being, and this kind of life cannot exist at all with that sort of equality in all respects. Nevertheless, because the actual inequality of men among one another (for example, that Gaius is superior, Titus inferior, that Seius is prince, Sempronius subject) exists as the result of the mutual convention and the positive laws of men, it cannot be presumed that one man has been willing to bind himself to another in such a form that the other in his turn is bound to him in no way, at least by a different species of obligation. Add also that society could not exist unless each and all were united in a mutual bond.
6. Mutual obligation is that to which another obligation corresponds in that person to whom something is owed thereby. This again is either imperfectlymutual or perfectly mutual. That obligation is imperfectly mutual to which, indeed, an obligation in the second party corresponds, but one of a different kind; as, in case a merely imperfect obligation be referred to a perfect obligation. This comes about primarily from a twofold cause; either when the adventitious inequality of the persons between whom the obligation is found to exist is so great, that one has supreme sovereignty over the other; or when one person is himself unwilling to bind the other with an obligation equal to his own. The former is the case in obligations which lie between an absolute prince and his subjects, or between the state and a citizen. Their nature is of the kind that, in the citizen, indeed, or in the subject, the obligation is perfect, but in the prince and in the state it is no more than imperfect. There are, indeed, those who say that an absolute prince cannot be under obligation to a subject at all, or the state to a citizen, for the reason that subjects or citizens, by the very circumstance that they are such, resolve their will into the will of the prince or the state, in such wise that the will of the former is comprehended in the will of the latter, and therefore is the same as the latter;7 but, now, no one can be under obligation to himself, because, since the one obligated and the one obligating are the same, and the one obligating could free the one who is under obligation, it would be in vain for a man to be under obligation to himself, since he could free himself from obligation according to his own pleasure, and he who can do that is in actual fact already free.
Of a truth, this reasoning, otherwise acute enough, reaches no other conclusion than that an absolute prince as such cannot contract with his subjects an obligation holding good in a human court of law, concerning the mode of sovereignty, so that, forsooth, this same prince remains absolute. However, it does by no means reach the conclusion that an absolute prince can in no wise be bound to exercise sovereignty aright, nor to anything else to which he has perchance agreed. To make that appear more clearly, it must be observed that he who subjects himself to a prince or a state in such wise that it has supreme sovereignty over him, does by that very fact recognize in it the authority to make determinations, as it wills, concerning the public welfare, in which the welfare of individuals also is contained, so that he does not reserve to himself any authority in the matter. That is why there cannot be a case where the prince can contract with a subject any special obligation about those matters which properly concern the supreme sovereignty and its exercise. For it is implied that he has supreme and absolute sovereignty, and yet is entering upon a special obligation with his subjects, and one which would give ground for action among men, concerning the manner of exercising supreme sovereignty. For, if an obligation of that kind should rest upon any prince with this effect, namely, that an action could be brought against him by the citizens, or coercion applied, it is altogether obvious that such a prince does not have supreme sovereignty. The obligation, therefore, which obtains between a prince and his subjects about matters pertaining to the supreme sovereignty, stands in this wise, namely, that, upon the subjects, indeed, there rests the perfect obligation of doing the bidding of the prince, and that the prince has ground for action against the disobedient, and the authority to bring them to order. But upon the prince, by that very fact, as long as he bears himself as such, there rests the obligation of caring for the public welfare in the way in which he has promised though only an imperfect one. For it binds only by force of the divine and natural law, but not as by the force of some civil law, because, forsooth, there exists no court of law among men where an action can be brought against a prince of this kind, and the subjects themselves are not competent to take cognizance of and pass judgement upon the actions of a prince. And therefore the prince is under obligation to his subjects in regard to the exercise of the supreme sovereignty, but in this wise, namely, that if he use it less well, he sins against God, indeed, as the avenger of the law of nature; nevertheless, because a human court fails to exist, and because his acts are not liable, his subjects are incompetent to bring action against him, no matter if he may also have pledged his faith with an oath.
Thus, even if a prince yield a part of his supreme authority, or promise not to use it, still, unless he either resign that authority into the hands of another, with the effect that the latter have the right of maintaining it against any and everybody, even against the prince himself, and of repressing any and every one who is about to disturb it; or else the prince give to a council of peers, or the people, the faculty of bringing him to terms, if he should act against them, he will be sinning against the law of nature, indeed, if he should usurp that authority again, and yet he cannot be prevented by his subjects from doing so, and those acts of his will be valid which in this case are undertaken de facto. For that something in the state should have the effects of a civil right depends entirely upon the pleasure of the supreme authority. It is no less true, that, if a prince should have some other business with a subject, which does not depend upon the force of supreme sovereignty, for example, if he should borrow money from a subject, or contract for another’s services, the obligation is imperfect. And this is so, not so much by virtue of the power of eminent domain extending even to this right which has been acquired by the subject on the ground of a pact with the sovereign himself, by which power he can remove this very obligation if he should see fit to do so in the public interest (for by the very nature of the transaction it is understood in such a case that the prince has given up his right to eminent domain, so as not to have nothing done between them); as because of the absence of a court of law and of a superior authority among men. But if, nevertheless, princes, as frequently happens, grant their subjects action against themselves in their own court in matters of that kind, this action does not exist by virtue of the force of civil law, but by the force of natural equity, as if it were impossible for him not to be willing to pay that which he owes, when once his obligation is recognized; and therefore the purpose of that action is not to compel the prince to pay what he owes, but to let the subject show clearly that the prince has put himself under obligation to pay it to him.
The same must be judged of the obligations between parent and children, and master and slave, in regard to those things wherein civil laws leave the former absolute authority, and do not grant the latter action against the former in a civil court of law. Thus, for example, if a master has promised a slave a definite reward for some extraordinary service, and one which is not included under the object of obligation which flows from the nature of his status, if, now, the master should not pay the reward, he is sinning against a law of nature; but, since the civil law renders a slave herein no assistance, he will have no action against his master in a human court of law. Moreover, as for the pronouncement of Roman laws, namely, that a stipulation is of no avail, if he who is subject to your authority should stipulate for something from you, or you for something from him,8 adding, as the reason therefore, that no one can be put under obligation to himself or transact business with himself; and that the master and the slave, the father and the son, in those things which are matters of right and can be acquired by the master and the father, perform the function of a single person; it does not follow from all this, that, between father and son, master and slave, there is no obligation, at least a natural one. But reference is here made only to a civil obligation, which could not arise between those persons in matters of this kind, because these same civil laws herein denied a son action against his father, and the son of a household (aside from what the special favour of laws had granted), or the slave, had nothing of his own except such private property as the liberality of the former had granted him, which the former could rightfully take away, if, perchance, he had need of it; and therefore it was of no avail to seek to acquire for himself a right to those things by stipulation.
7. An imperfectly mutual obligation arises in the second way, when a person, while binding himself to furnish something to another, does not demand that this latter be put in his turn under obligation to him in the same way. This takes place principally in the case of gratuitous promises. For when I promise something to another, I myself contract the obligation to supply it, and this obligation gives the other ground for action against me even before a judge, when the stipulations have been ratified by civil law.9 It is no less true that, when those stipulations are valid by the mere law of nature, I am able to demand the fulfilment of his promise from the one who made it, in that way in which I have a right by the law of nature alone, at least where it is clear that the man who made the promise is fraudulently and insolently trying to slip out of it, and I have based my calculations upon that promise, and would suffer some loss in consequence. However, the obligation of the man who makes a promise to keep his promise, and the obligation of the other to show his gratitude, are not equivalent, even if the promise also should stand by the mere law of nature and should not furnish action on the basis of the civil law. The reason is that when some one promises anything gratis, he indicates thereby that he does not desire to call upon the other one to furnish him any equivalent thing, as though it were an indebtedness, and for that reason he is not shaping his actions with a view to the other’s gratitude, and, if that should fail, he is not suffering any injury or insult, as did he who had faith in the promiser as though he were an honest man, and arranged his plans with reference to the other’s promises. Hence, although by the law of nature I can properly demand from him who has deceived me with his promises, at least the amount of injury which I have received therefrom; I do not by any means have the same right, if the hope which I had conceived of another’s gratitude has deceived me; and that because, as has been said above, I have, as far as I was concerned, relieved him of that very obligation, and I have left it entirely to his sense of honour.
8. As for the rest, rightly to understand the nature and effect of a promise, it should be known that there are constituted three grades of speaking about the conferring upon another of those good things which are under our authority, or, we think will be; to wit, bare assertion, imperfect promise, and perfect promise.10 It is bare assertion when we disclose our intention about the future, such as our intention now is, without the obligation of persevering in that inclination; for example, if I should say to some one: “If I should feel the same way a month from now, I will give you a horse.” From an assertion of that kind there is no effect. For it does not bring with it any obligation to persevere in the same inclination, and when the time mentioned has elapsed, or another added condition appears, it is altogether the first person’s full right to decide whether he cares now to make a valid promise on the subject, or to furnish the thing referred to, or does not care to do so.
An imperfect promise is that whereby a person defines his inclination at some future time to furnish something freely to another, and accompanies that expression of inclination with a sign sufficient to indicate the necessity of persevering therein, and yet in such wise, that he to whom the promise is made, is granted as yet no proper right to demand the thing promised. This appears to be principally the case when he to whom something is promised, has, by reason of the authority of the latter over him, no action in a human court of law against the one who makes the promise; as if a master should promise something to a slave, a father to a son, a prince to a subject. The same is likewise true, when, in states where stipulations have been ratified by the civil law, a certain formula, or regular proceeding prescribed by law, has been omitted in making the promise. There the promisor, by virtue of natural equity, indeed, is bound to keep his promise, and yet, on account of the defect in customary usage, cannot be compelled by civil action to do so.
To this class also they refer a promise conceived in the following way: For example, “I have the intention of giving you a hundred pieces of gold, and I ask you to believe me.” For in this case the first party confers properly no right upon the second, and he is bound to furnish what he has promised rather by virtue of the rule of truthfulness than that of justice.
Finally, a perfect promise is that whereby a person defines his inclination at some future time to furnish something freely to another, and accompanies that expression of inclination with a sign sufficient to indicate the necessity of persevering therein, in such wise that the other party is also granted the right to demand the thing which has been promised.
9. It must be noted, furthermore, about promises, that right to the thing promised is transferred to a second party only by words regarding the present or the past, but not by words regarding the future, unless, in addition to the words, there are added also signs which declare that the promisor, in speaking of the future, wishes his words to avail also for the present and completed transfer of right. For otherwise, if any one should say, for example, “To-morrow I will promise,” or, “To-morrow I will donate,” he shows plainly that he has not donated as yet, and so his right remains to him undisturbed the whole of to-day, as also to-morrow and thenceforward, unless, in the meantime, he has actually given it. For since by that kind of promise of gratuitous donation no piece of property has been, or is to be, acquired, he is not reckoned as having fully determined his desire as yet, or as being desirous of transferring his right to another, so long as he is still speaking in the future tense, and that, because, in the meantime, either his state of feeling may alter, or a chance event intervene, which will give him reason for being unable to part conveniently with his property, or, finally, the reason in the second person for making the promise may cease to exist. And therefore, as long as he does not transfer a right in the present (for the present transfer of the thing is not required), he is understood to be yet deliberating, and to be reserving to himself the authority to change his mind; just as in the case of a testament the testator does by no means transfer to the heir a right in the present, but is always regarded as having added the clause, “Let this man be my heir, unless I change my mind before I die.” And yet he who vainly deludes others by an empty hope of this kind, incurs the reproach of inconstancy. However, he who says, for example, “I give,” or “I have given something which is to be had tomorrow,” signifies that he is to-day giving the right to have a thing to-morrow, or he is to-day transferring to another the right to something, the transfer of which ought to take place on the morrow. And it makes no difference that, by a common habit of speech, practically all promises are expressed in words which denote future time, if you consider the grammatical form of the words. For this has come to be customary because the giving over of the thing promised follows generally after an interval, nay more, that in which the intention of giving is manifested at the very same time that the thing itself is produced, can scarcely be called a promise (since, forsooth, here it would appear that either there had been no obligation, or else it has expired again immediately upon its being contracted); and, in truth, men commonly say that they “have” a thing only when they have acquired its possession. And therefore the proper sense of such words as occur in a perfect promise, as, for example, “Within six days I will give you one hundred pieces of gold,” is this: “I give you now the right of having and demanding from me at the time stated one hundred pieces of gold, and at the same time I bind myself to turn them over to you at the expiration of the interval of time which has been fixed.” It is apparent from this, that the words referring to future time in promises, as especially the word “give,” regard either an obligation which is yet to be contracted, and by these words neither the thing itself nor the right to the thing is transferred; or else they regard a transfer of a thing which is to be made thereafter, the right to which thing is either now transferred, or has been transferred, and these words do not prevent this from being a perfect promise.
10. Furthermore, in order to make a promise perfect, there is required not merely the willingness of the one who makes the promise, but also the willingness of him to whom the promise is made. For, where the latter is lacking, or where the second party refuses to accept the thing, even if I had made the promise under oath, complete right to the thing which is my own remains with me; and this for the reason that I was unwilling to thrust upon another, who did not want it, the thing which was my own, and that I based the whole transaction upon the condition, “If, indeed, he be pleased to accept it.” Now I did by no means wish simply to renounce my own right, or to transfer it to another, or to treat as derelict that which I offered to a man who refuses it; for the cause that moved me to make the gift was in him alone, and not in other persons as well. But if, in truth, the will to accept on the part of the second party, to whom something is promised, has concurred with the will of the one who makes the promise (and this is understood to be the case, even if the second party had previously sought to have the thing promised him, and did not afterwards revoke it), then it is understood that at this same moment the right to the thing promised has passed from the latter to the former, and therefore the promisor has no longer the right not to fulfil his promise to the promisee against the will of the latter, and that for the reason that in this way his own right would be denied the latter, and his calculations would be upset, which the promisor himself wanted him to base upon his own good faith.
11. Now a promise is either pure or absolute, by which a man obligates himself to furnish something gratuitously to a second person, without supposing any thing, event, or deed; or else, conditional, which supposes a definite thing, fact, or event as far as concerns the bare adessence, and when this thing, fact, or event has been denied, there is no promise.11 I say “as far as concerns the bare adessence,” by which I mean that the bare supposition is made, that we will supply something, if this or that has taken place, or if this or that has been done by somebody, or has not been done. For otherwise, if something of that kind be supposed as a cause which deserves the promise, or gives one a right to demand it, or if the promisor should make some express stipulation from the promisee, if only the mode of acceptation be in the highest degree definite, or if the supposition be a recognition, it will be a pact.
As for the rest, the obligation of conditional promises is in a state of pending efficacy, until the existence or non-existence of the condition be recognized by the promisor. When that has taken place obligations acquire the force of pure promises. But when the condition does not appear, there is also no obligation, forasmuch as the obligation depended upon the condition. Thus, if a man has promised that he will furnish something, if some other person agree, he will not be held to his promise until that other person’s willingness is definitely ascertained. But if, in truth, the matter is not now in the power [potestate] of the promisor, but may sometime be, the promise will be in a state of pending efficacy, because then the promise ought to be regarded as having been made on the condition, “If the thing come within his power.” But if, in truth, the condition whereby the thing may come within the power of the promisor, be itself also a matter of power [potestativa], that is, if it be in the power of the promisor, that that condition come within his power, the promisor will be bound to do whatever is proper in order to have the condition fulfilled.
It must be observed, furthermore, that promises are unavailing and null, when the condition under which the promise is made has been put under our own mere pleasure, for example, “My slave will be the guardian of my children, when I am pleased to give him his liberty”; “You will have ten pieces of gold from me, when it pleases me.” For this is just the same as if I had said: “It pleases me to give you nothing now, but when it has pleased me, then, and not until then, you will have it”; and yet I am not binding myself that it will please me at some time. Hence the jurisconsults were right when they said: “That which is in our power [potestate] ought not to be conferred on a chance.”12 Thus also an impossible condition makes no promise; for it is equivalent to the negation of a promise. When the mention of a place is added in a promise it involves the length of time necessary to enable one to arrive conveniently at the place where some one has undertaken to fulfil his promise. Moreover, the addition of a definite time brings it to pass that the effect of the obligation is not exerted until that time has elapsed, or that the effect of the obligation cannot be demanded except when the appointed day has arrived.
12. A perfectly mutual obligation is one which arises from the agreement of two or more persons concerning the furnishing to one another of definite things or actions, in such wise that on both sides there is an obligation of the same kind regarding one another mutually. Obligations of that kind are commonly listed under the name of pacts, or contracts, although by the latter word are generally signified those which have to do with things and actions which become matters of commerce. Furthermore, since these obligations regard matters which have been agreed upon by both sides and presuppose reciprocal good faith, it is readily seen that if one party has broken its pledged good faith the other party also is no longer bound, and therefore, he who does not stand by pacts already violated by the other party is not perfidious. For one and the same covenant has separate heads different from each other in the mode of the condition, as though it had been expressed, “I will do thus, if the other also shall have done what he promised”; and, indeed, regularly in such a way, that, if this same pact, perchance, should contain several heads, when one head has been violated, the whole pact is dissolved, unless it has been especially agreed that the other heads will be none the less valid, even if, perchance, one head or another has been violated. Here, however, it must be noted that most covenants have been conceived in such wise, that one party is bound to do his part before the other does his. Herein, although the former should do his part on the condition that the other also would afterwards do the equivalent, nevertheless his obligation thus far is absolute, because having trusted to the other’s good faith before a part of it was exhibited, he is altogether bound to maintain his own good faith, unless, perchance, after the covenant had been entered into, manifest signs should appear that the other party, after receiving the thing, would deceive him. The obligation, moreover, of the one whose duty it is to fulfil his promise second, depends in this wise on the fulfilment by the former of his promise, so that, when the fulfilment does not take place, this obligation immediately expires, and there arises for him the right, if he so desires, of compelling the other by force to live up to his pact. But if, however, the things are to be presented mutually in succession and in portions, immediately upon one party ceasing to continue to present that which is due, the other also will no longer be bound to proceed further.
13. Now under these circumstances what will become of the things which have been already in part supplied? Will both parties have just as firm right to them also, as if the pact had been brought to full execution? Here we feel that the question as to which of the two breaks the half-completed pact, must be carefully considered. For if the other person should be the first to violate a covenant which had been entered into with me, I, indeed, retain full right to the part of the things already received; moreover, I am able, should I so desire, to compel the other either to make up the remainder according to the agreement, or else to furnish the worth of the same; and the other has by no means this right against me. For the well-known principle obtains: As often as the fulfilment of the condition is prevented by him to whose interest it was that it should be fulfilled, it is regarded as though the condition had been fulfilled,13 and if, afterwards, due to repentance, he should wish to continue the pact, I myself am not compelled to accept it, seeing that the breach of the pact which he has once made, has entirely absolved me from all obligation towards that same pact. The same principle also holds, if that which I have received should be worth more than that which I have furnished to the other party, in which case also I am not bound to restore that which exceeded the value of my own piece of property. For he who was the first to break the pact is himself regarded as removing the obligation upon me, and of being unwilling to furnish anything further upon the basis of that pact. Thus, for example, if any one should hire my services for a year and pay me my wages in advance, and afterwards, before the expiration of the year, should dismiss me without any fault on my part, I am not bound to restore to him the value of my services during the remainder of the period.
14. Now the force of obligations arises either from the law of nature or from the civil law. Also concerning obligations of the latter kind, indeed, it is beyond controversy that the efficacy of the same in bringing to bear upon both sides the necessity of furnishing that about which the agreement had been made, ultimately resolves itself into the force or the faculty of compulsion which inheres in that which wields the supreme authority in the state; and therefore, because those things which are owed on the basis of obligations which are legitimate in the civil law must necessarily be furnished, the ultimate reason in that kind of obligations is, that if men should be disinclined to do this, they are compelled to do it by the authority of the state. For from this very cause states have ratified, by their own laws also, the majority of covenants in which otherwise there inhered the force of obligation on the basis of the law of nature, and on the ground of their own law they have granted action to the contracting parties, so that, if, indeed, a man should be disinclined to furnish what he owed in due respect to the law of nature, it might be possible for him to be compelled by the force and authority of the magistracy. For, unless those covenants should be kept inviolate, business intercourse between citizens, and a peaceful society, could not exist, and it did not appear that adequate provision had been made for peace by leaving herein each man to his own conscience, especially the common run of mankind, whose sense of the honourable is dull, and yet the majority in states is composed of this common run. Now, although in almost all covenants confirmed by the civil law, there inheres a force of obligation deriving from the divine law also, and therefore, even if one be unable by the assistance of the judge to come into possession of one’s own right, either because, as a result of lack of foresight, some error has been made in the customary phrases of the formulae, or because the judge has rendered an unjust opinion due to an imperfect perception of the case or to some personal feeling, or has altogether refused to take cognizance of the affair, there remains none the less upon the second party, on the basis of the law of nature, the obligation of furnishing that about which the agreement was made. Nevertheless, he to whom injury has been done is by no means left the faculty of obtaining what is owed him on the basis of the law of nature, by means which are otherwise granted through this same law, for example, by private exercise of force, or by war. The reason for this is that, through the act of civil subjection, individuals have yielded up the authority of exacting from the unwilling in any other way than by the assistance of the magistracy, that which is owed them by their fellow citizens, at least. And these conditions properly obtain when citizens of the same state have made a contract with one another, not merely according to the formula of civil laws, but even on the basis of the law of nature alone. For those pacts also about which the civil law makes no disposition do not give the citizens of the same state the authority to put forcible compulsion of their own proper initiative upon the violator of the same pacts. But if, now, the matter be between citizens of different states, it must be carefully considered whether some one state is willing and accustomed to give to strangers as well as to citizens the right of appearing in court, or not. If the former is the case, action on the basis of the civil law is proper against him who does not want to stand by his agreement, and this action must be instituted in the state of the defendant, if, indeed, the latter have his present residence here in regard to his person as well as his property. And if, in the state of the other, he either be as a stranger regarding his person, or else possess certain goods under the same state, the plaintiff does not need to institute the action in the state of the defendant, but may bring suit against him in the plaintiff’s own state, if the defendant be present, or may ask to be allowed to lay hands upon the goods which exist there. For any stranger whatsoever, aside from those whom the usages of nations have especially excepted, is regarded as recognizing the jurisdiction and the courts of that state in which he sojourns, at least regarding acts performed in that state, or with citizens of the same. But if, now, some state is not accustomed to give foreigners the right to appear in court, or, if otherwise accustomed to do so, it has unfairly denied that same right to some definite person, then the agreements of citizens of that state with citizens of a different one will have efficacy on the basis of the law of nature alone, and therefore will give the authority to apply force, which authority, in defect of civil and pacific action, the law of nature has granted. Here, however, the following observation must be made: Just as a prince who is not such over me, when implored for aid against a subject of his own in obtaining my right, brings himself under the accusation of wrong-doing by denying me that aid, and therefore gives me the authority of pursuing my right, not merely in the primary debtor but even in the prince himself (if the obedience which I owed him while dwelling in his territory has expired by my change of location); so I cannot in private enterprise descend to violent means against the citizen or the prince of the other commonwealth, without the consent of my own state, but I ought to implore its aid in securing my own right (to furnish which, if it conveniently can, my state is obliged); and that because states themselves can be implicated in war by controversies of this kind on the part of private citizens; unless, perchance, the state without sufficient reason should desert me, or I myself should be able to take adequate precautions for the state, that, from my violence, no inconvenience will redound to it.
15. Now among learned men it has been a matter of dispute, as to just what strength of obligation there be in pacts which have been joined upon the law of nature alone, such as are the pacts between those who do not recognize a common judge in a human court of law, or the pacts about which the civil law makes no disposition. For not a few have concluded that the efficacy of these same pacts is contained in the mere bond of the sense of shame and decency, especially when as yet no agreement (συνάλλαγμα) has been entered into, and nothing has been furnished on either side; while others vigorously attack this opinion as one which enervates the good faith behind all treaties. To us the matter does not seem to have so much difficulty about it, if you suppose at the outset, that men have been made by nature to cultivate society among themselves, and that no one at all ought to bring upon a second person that which can furnish a cause for discord and war. This is primarily the case when some one by whom no special right has been acquired by pacts, does not allow a second person to enjoy the same right with himself, and by his own efforts makes the condition of the second person worse. Now since society cannot be cultivated and conserved without mutual covenants, and it is the very greatest cause of irritation among men and of throwing them into discord, and without any doubt makes the condition of the first person worse, if he be frustrated by another whose good faith expressed in a pact he had accepted; it is certainly apparent that men are altogether bound by the law of nature to keep their pacts, and that men who violate those pacts are sinning against the same law. And this is by all odds most manifest in the case of those pacts in which each of the two contracting parties has already furnished that, or a part of it, about which the agreement had been made. But where, in truth, on neither side has anything as yet been furnished, although the loss which is experienced be less than in the former case (just as also pacts of that kind, while matters are still untouched on both sides, can be very easily dissolved by agreement); nevertheless, here also there is quite as much sinning against the law of nature if that which was the subject of the covenant be not fulfilled. For this supplies me with a just cause for complaint, if my calculations, which I had based upon the good faith of the other, collapse upon his deceiving me, or at least if I be mocked by him undeservedly. And the other person, who, according to the agreement, must furnish his part first, is not released from the obligation by the fear that if he himself have made good what he owes, I who follow him may not abide by the pact. For, by the very act in which, with deliberate intent, he made a contract with me, he renounced this exception, since, forsooth, otherwise there would have been no transaction between us; and it would be absurd for the fear, which could not prevent the making of the agreement, to hinder the furnishing of that about which the agreement was made. Nay, if that fear should prevail over good faith, no civil society could be formed or preserved, but life would have to be spent in perpetual warfare, and therefore in the status of brute beasts.14 For those especially who unite to form a state ought to have good faith among themselves, because they, indeed, wish to procure public welfare, the rest of men to obey it. Otherwise they would never coalesce into one body, unless those who subject themselves to the other party should compose themselves to obey, content with the pledge of good faith which has been given by the one who is to bear authority. And a large part of the business transactions of men with one another would necessarily be destroyed, if Greek faith only should be current, and hands with eyes in them* should believe nothing but what they saw. But if, nevertheless, after a pact has been entered into, a new ground for fear should emerge, as when the second party has given manifest indications of a desire not to furnish what he owes on his side, after I have made good my part, then I also am not bound recklessly to furnish my part without taking precaution. For, inasmuch as pacts of that kind exist on the basis of mutual good faith, where that good faith is lacking on one side, the other side also will be absolved; and it appears that he who testifies in advance to his own perfidy has already excused me from my obligation. But that cause of just fear ought to be a new one, and it ought to come after the pact. For the cause of fear which preceded has been eliminated by the very pact; and that cause which does not specially regard my pact, as, for example, if he has not kept faith with others, or others in the meantime deceive my confidence in them, does not absolve me. For both the rascality of others ought not to cause loss to a third party, and, just as I cannot make complaint of him who has paid me my own, even if he does not pay others, so, as long as he shows no sign of employing perfidy in my case particularly, I am not released from the obligation of furnishing my part, because he has deceived others. For it is possible that he who has broken faith with a number of others, has a firm determination to keep faith with me.
16. But indeed, to prevent a man from neglecting this obligation which has been contracted by himself, if perchance his will has been changed out of consideration for his advantage or through desire, the mere honor of having kept faith, the shame of having violated it, and the care for defending his reputation do not appear to have sufficient efficacy, even though they have no little importance. This is patent from the same reasons by which we shall show later on, that the law of nature in itself is not sufficient to maintain peace among men.15 It is necessary, therefore, that there exist something which will bring it about that a man shall not lightly dare to change the will which he has once expressed and obligated, and that he judge it to be better to maintain that will than to violate it, even though, perchance, an immediate advantage seem to urge the contrary. Now we observe that nothing has such effect except the fear of bringing upon oneself, from some one who is stronger, some evil because of the violation of the pact, so that, in the last resort, the efficacy of obligations is derived from force. This force is either in the one to whom injury is done, or in other men with whom, perchance, the perfidious person may have some dealings, or men to whom his perfidy pertains because of the common example, or else, finally, in the supreme governor of the universe, God. The force in the man with whom the pact was made generally has about the most present efficacy for constraining men not to depart from a pact. For the larger part of mortals is of such a disposition that, when a just cause for employing violence has been offered (such as the violation of pacts suggests), they rarely refrain from inflicting the most severe punishments without delay upon the perfidious. Nor are the rest of men not to be feared by the violator of pacts. For it is frequently known to happen that other persons come to the rescue of one who has suffered some injury, no matter for what cause, and with joint force attack the perfidious. And other more powerful persons with whom the perfidious has some intercourse, even if the efficacy of their pact with him does not depend on the observance of the pact which is made with a third party, do for the most part eagerly rejoice in seizing a plausible pretext, namely, that they are avenging the injuries of the weaker, for concealing their own passion. And pity commonly turns her back upon those who suffer the things which others may seem to have learned from their example. Finally, there is no mortal man whose safety is not bound up in the good faith of others towards him; and how can he have the face to demand that others shall hold this bond sacrosanct towards him, if he himself makes a jest of having violated this same good faith? To such a degree is that Palladium of human security to be defended by common consensus, and the perfidy which, perchance, in a definite case seems to be more profitable, turns out to be on the whole harmful.
Now indeed, when the affairs of a man are in such a state that he feels he need not greatly fear any man, a persuasion which from a variety of causes very often steals into the mind even of those who are not extremely powerful, there yet remains the fear of God, the supreme vindicator of justice, who does not allow the violators of the law of nature to escape with impunity. Although this vengeance of the Deity walks often with a slow step, and others cannot always comprehend the way in which it acts; nevertheless, because frequent and famous examples occur of the perfidious being afflicted with the utmost misery, sufferings which all who are not atheists trace back to God as the avenger of perfidy, it results that the fear of the Deity adds finally the last element of strength to human good faith. From this fact also it is apparent, in passing, to what a degree it is a matter of concern to human affairs, that atheism should not grow strong. For, if you have removed God from the function of administering justice, all the efficacy of these pacts, to the observance of which one of the contracting parties is not able to compel the other by force, will immediately expire, and every one will measure justice by his own particular advantage. And assuredly, if we are willing to confess the truth, once the fear of divine vengeance has been removed, there appears no sufficient reason why I should be at all obligated, after the conditions governing my advantage have once changed, to furnish that thing, for the furnishing of which to the second party I had bound myself while my interests led in that direction; that is, of course, if I have to fear no real evil, at least from any man, in consequence of that act.
17. Now as for the persons between whom an obligation may exist, at the outset it is manifest that an obligation requires at the very least two persons, and that one person cannot, properly speaking, be under obligation to himself. Thence come those well-known rules of the jurisconsults: “When the debtor succeeds to the creditor, the debt ceases,” or, in other words, obligation is removed by uniting.16 Likewise: “When two persons become one, the contract is invalid.” For although we are commonly in the habit of saying, for example, “Any one whatsoever is bound to save himself,” nevertheless, that obligation inherent in man regards man himself only in so far as the exercise of an action which derives from that obligation ought to terminate in him; and properly this obligation is ascribed to God, the author of the law of nature, as to the one who is able to compel the exercise of the obligation and to punish the neglect of the same. And therefore man is bound to care for himself only in so far as he is a servant of God and a part of human society. Hence, just as one can rightly beat his slave, if the latter has made himself too weak to endure labours; so a state also rightly chastises a citizen who has made himself a useless member of the state by self-mutilation. The Romans gave an example of this kind of punishment in the case of those who made themselves useless for military service by cutting off a thumb. Otherwise, it is repugnant to the nature of obligation for some one to be under obligation to himself. For, since the obligation expires when the other party to whom it pertains wants to free me from it, if I have been put under obligation to myself, I shall be free as soon as I desire to be, and therefore I shall be absolutely free. And this is not to mention the fact that there will be no advantage in an obligation of that kind, since nothing accrues to anybody by an act of furnishing, nor is anything lost by an act of intermission, as long as a person is giving or denying something to himself, and therefore he is doing absolutely nothing. And this obtains even in the case of composite moral persons, or societies, which cannot bind themselves as such. And so the decrees or the laws of a certain society promulgated by itself for its own members bind merely the members of the society as individuals, and by no means bind the society itself as such. The reason for this is readily apparent. For, as an example, in a society constituted like a democracy, the individual associates, in becoming such, bind themselves to the agreement that they are willing to observe the laws and the statutes approved by the consensus of the majority, or even of individuals; and by this circumstance the whole body is given the authority of forcing them so to act, if afterwards they should be disinclined to do so. Now by their vote individual associates as such do not bind themselves directly, since, forsooth, even he who has a different opinion is bound by the consensus of the majority; but they bind themselves only as far as their vote, coalescing with the votes of the majority, acquires, by the fundamental pact of the society, the force of sovereignty. Now the society as a whole does by no means bind itself, nor can it even bind itself, to the wish that it be bound by that decree for a longer time than it shall find agreeable. The result is that decrees of this kind on the part of societies, to which belong also civil laws, can be abrogated again by the same societies whenever they desire. Also, in those pacts by which a society is established, it is not the society which obligates itself, but the individual members as such bind themselves mutually to the declaration that they wish to form a single moral body.
18. As for the rest, any man whatsoever can be under obligation to any man whatsoever, naturally, at all events, if not civilly. For the sense in which it is said that a prince cannot be under obligation to a subject, a father to a son, a master to a servant, has been set forth just above. Now it is presupposed, quite as much in the case of the one who ought to contract an obligation, as in the case of the one towards whom that obligation is directed, that he possesses the natural requisite for contracting an obligation, or for allowing an obligation towards him to be contracted by the other, and that is the faculty of understanding the force of an obligation, and the matter about which the obligation is contracted. For, since in an obligation the right of having something from me is transferred to the other party, and it is fair that that act be valid because consent has been secured from me who am an interested party; it is, of course, patent that they who do not understand the matter under consideration, and therefore cannot agree to it, are unable to assume obligations. Such persons are infants, as long as they are destitute of the use of reason; likewise the insane and the mad; although these latter, as long as their madness is broken by lucid intervals, can validly put themselves under obligation, just as also no piece of business which was properly transacted is undone by subsequent madness. To this class also are relegated those whose mind has been disturbed by drinking to excess, who, if, indeed, they reach such a stage of drunkenness that for the time being they do not understand what is being done, are properly regarded as not having contracted an obligation, even if, perchance, a second party has secured from them while under the influence of drink, symbols which otherwise testify their assent. But if, now, when their fit of drunkenness has been shaken off, they approve the same, they will be under obligation, because of what they have done while sober, but not because of what they did while drunk. And it does not follow, that, if a misdeed committed in a state of drunkenness can be charged against a man, obligations also can be contracted under the same. For the reason behind the former position is that it is incumbent upon a man to avoid as far as he can any occasions at all which may very likely precipitate him into doing a misdeed, and every one knows that drunkenness is such an occasion. And so, when he has yielded to it, he is regarded as having yielded also to the things which were to result from his drunkenness. But this mode of reasoning cannot be extended to obligations, for the reason that, since no one is bound actually to contract or not to contract them, a man is also not bound to avoid such occasions as those in which some symbols which otherwise denote obligation can be enticed out of him while he does not understand what is going on. And therefore, since drunkenness had not been forbidden him as far as concerns contracting or intermitting obligations, it cannot be presumed from his yielding to drunkenness that he has therefore consented to an obligation; but the strength of the obligation depends upon the consent which obtained at the time when the symbols were executed. But, truly, that consent in such a state of drunkenness as thoroughly paralysed the use of his mind is regarded as no consent at all, for the reason that it is not understood what the matter is about.
Now that minors who already rejoice in the use of reason are unable to obligate themselves, if, indeed, that obligation is destined to be a burden to them in the future, does not come from the law of nature, but has been introduced by positive laws only. And that is because such a time of life, commonly prodigal and not sufficiently attentive to its own affairs, is exposed to pillage by designing men; also because, being of changeable purpose and accustomed to rush ahead with inconsiderate ardour, it can readily be induced to agree to what is anything but conducive to its interests. For this cause the same laws have determined that such persons should make contracts under the auspices of their guardians or overseers.
19. Here where consent is being treated of, it is convenient to subjoin the topic of error in pacts; that is to say, if I have made a false supposition in some matter, in consideration of which I have committed myself to an obligation, is there for that reason no obligation? This question must be answered in the affirmative; and that because consent is founded upon a presumption regarding that matter, and if the matter turns out to be otherwise, there was no consent at all, and no obligation at all; since, forsooth, any and all things which are conditional stand and fall together with the condition upon which they are based. And this obtains not simply if the error was in regard to the physical substance of a thing about which a pact is made, but even if it was in regard to a quality which I had especially before my eyes when I made the contract. Thus the contract is null, not only when, for example, I bought from another man Davus to be my slave, when I thought he was Syrus, but even, for example, when he whom I wanted to get especially for that service does not know how to cook, if, of course, I openly announced that I was looking for that kind of slave. For, although a quality of that kind does not belong to the physical substance of the thing, nevertheless, it happens very frequently in pacts that the quality of a certain thing is the principal consideration, and that its actual substance is regarded as nothing but an inevitable accessory. Therefore error has to do with the essence as such of the object about which the contract is made, and therefore a pact is rendered void when the motive, which influenced a man to make the contract, was based upon a false premise, whether that motive be the physical substance of the thing or merely a quality. But, truly, it can scarcely be said that an error has occurred when that does not appear which had not been presupposed as a condition, either expressly, or by the nature of the transaction. For such a matter is regarded as being, by the very judgement of the contracting parties, without effect upon the stability of the contract. But if, indeed, a man has been careless in looking into the matter and in correcting an error of a kind which he might have escaped, he is bound to make good to the other party the loss incurred by a vain promise or pact of that kind. Now, of a truth, errors of that kind can come about more frequently in promises and less frequently in contracts, because in the latter case the thing about which the agreement is made, together with its qualities, which the contracting party has before his eyes, ought to be expressed separately, or else they are understood to be presupposed by the very nature of the transaction, or by other circumstances. For, if these matters are unknown, assuredly the contracting parties cannot come to any agreement regarding the thing itself. Therefore, when those qualities, expressed or presumed, are not apparent in the thing agreed to after it has been delivered, the contract is not properly speaking void because of error on my part, but because of the fraud or lack of foresight of the one who delivered a thing deficient in the qualities which it ought to have had. This fraud results in making it lawful for me to withdraw from the contract, or else to compel the other party to make good the defect and to compensate for the loss which was suffered therefrom. And this obtains not merely if the contracting parties have expressly stipulated or promised good faith towards one another, as, for example, if an agreement has been made between persons who were not in one another’s presence, or if the vendor has delivered, as though it corresponded to the terms of the pact, a thing which the purchaser had not examined; but even when the second party discovers only after an interval the absence of those qualities. This is particularly true when those qualities cannot be discovered from a glance at the exterior, or by one who is unskilled in the art in question. But when the absence of a certain quality has been discovered by the second party, and he none the less accepts the thing, he is regarded as having agreed also to that absence of the quality, and so for that reason the pact is not rendered void.
20. Now I can put myself under obligation, if, indeed, a stronger obligation has not thrown an obstacle in the way, to any one to whom my obligation can in any way become known, or who can accept the same. Nay more, I may do so even to those who for the time being cannot understand it. For no reason seems to prevent a man from binding himself validly to a minor even without the authority [autoritatem] of his guardian, if, indeed, the nature of the transaction by which his own condition is improved should furnish no ground for presuming that he himself, when he comes to understand the situation, will repudiate the same obligation. And if, perchance, moral failings be discovered in the man himself, they do not prevent him from being capable of admitting my obligation. For there are many faults which do not affect the obligation at all, and those which, perhaps, may bring his good faith under suspicion are judged by the very fact of the contract to be of no avail for hindering the acquisition of a right acquired by an obligation, since otherwise nothing would take place between the two contracting parties, did they not renounce those exceptions. But the reason why I too am no longer bound, when, in the same transaction, the other party does not keep faith with me, is different. Because all pacts presuppose as a fundamental condition mutual good faith between the contracting parties, and when one has broken this good faith the other also is immediately released from obligation to the same.
21. But it is a little more difficult to make plain whether I am under obligation to him, who, by a crime on his part, has brought upon me the necessity of making a pact. Properly, indeed, the question here is not about those pacts which, for example, are made with a brigand, in so far as he is not such; for it can scarcely be doubted that these ought to be observed, and this is the sense in which it seems those should be understood who make the general statement that one’s word when given to a brigand must be kept. But, in truth, it is our judgement that one must come to a different conclusion about those pacts to the formation of which with a brigand we are compelled by an unjust use of force on his part; for example, if we should promise a brigand, in order to keep him from taking our life, that we will pay him something, should we be bound to furnish what we have promised, after we have been brought to a safe place out of the reach of his violence? As for civil laws, indeed, there is no doubt that, even if they do not forbid the keeping of such pacts, at least they do not at all compel us to keep them; nor do they give the brigand ground for action, since, forsooth, he is an enemy of civil society, who, if he is caught, is customarily made away with like a harmful wild beast. Nor does it seem that there is here a natural obligation. For since, on the basis of the law of nature, he who has extorted something from another through unjust fear is bound to restore it, and so a brigand of that sort ought, on the basis of the law of nature, to pay me as much as he himself has taken from me by virtue of such a pact, it is understood that by compensation the obligation is, as it were, removed, if that which ought to be restored immediately is not paid;17 and it would be foolish to pay voluntarily what had been promised as the result of force, of course after one has succeeded in reaching places of safety, and thereafter to desire to extort by violence from the same person recompense for the loss he has suffered, especially since, by the very fact that he exacts a promise from me, he professes his unwillingness to make restitution for the damage which he has done me. Nor does it appear that he is any more bound, who, in a case of this kind, gives bail for a second person,18 even if he does not properly bind himself as a result of fear. For, since giving bail is, as it were, an accessory support to the principal pact, it seems absurd, at least from the law of nature, for there to be more efficacy in the accessory than there is in the primary pact, or for the principal debtor to be under a looser obligation than he who has promised to undertake the obligation of the principal debtor, in case the latter shall not have met it. And yet the situation appears to be different, if a third party contracts with a brigand an obligation of his own, and one which does not depend on the obligation of the one who has been captured, or support the same. For upon this third party neither has unjust fear been brought, nor can he borrow the excuses of the captured man, because he has bound himself not under the latter’s name, but under his own name, nor has he based his obligation upon the latter’s obligation, which was something that did not exist. But if, in truth, he gave hostages, or, after his capture, left some of his companions in the power [potestate] of the brigands until his promises were performed, he is bound, not by the pact with the brigand, but by the pact which exists between himself and the hostages. If, however, an oath has been given, we are of the opinion that the man captured is bound to fulfil his promises; not because the brigand wins a peculiar right therefrom, since, forsooth, oaths add nothing further to the substance, as it were, of the obligation, as far as concerns the man to whom the promise is made, and no special right arises from them in a human court of law, at least in this case; but because of the reverence due the Divine Spirit, whose mercy he has renounced unless he keep his promise.19 And it is better to suffer loss of money than to have treated the Divine Majesty with a certain lack of respect.
22. The following point also must be made clear, whether, namely, I can contract an obligation with an enemy as such, or whether pacts which are made with enemies be valid. These pacts are of two kinds, for they have to do either with bringing war indirectly or directly to an end, or else with furnishing certain things while the state of war endures. Now that the former create an obligation on the basis of the law of nature, cannot be doubted. For, since nature allows men war merely as a sort of extraordinary means of acting with one another, and bids us, as far as our safety permits, to avoid it, or to bring it to a peaceful conclusion, which cannot be without pacts; it is undoubtedly understood that the same law of nature also binds us to observe the pacts which are formed for the purpose of ending war. And this position, because of the favour extended to peace and the necessity of it, has been extended by the usage of nations so far that in solemnly establishing peace both parties are generally put on an equality as regards the justice of the war which had been undertaken, and the excuse of the unjust application of fear is not allowed to be extended to pacts of that sort; because, otherwise, there would be no end or limit to wars of that kind, which are assuredly frequent enough as it is. Under pacts of this kind is included the pledge of one’s good faith which has been given for the safe access and return of those who are going to transact the negotiation of the peace. Likewise the pacts of truces by which the exercise of hostility is completely suspended, if, indeed, they look to the restoration of complete peace. This is understood to take place if it has been expressly agreed, that, while the truce lasts, the means of composing peace are to be employed. But, indeed, it seems to be otherwise with those pacts which neither end a state of war or hostility, nor look towards ending it. For, since a state of war as such recognizes violence as a proper mode of action, just as good faith is the instrument of peace among men, no obligation at all can be contracted between enemies on the basis of the law of nature (forasmuch as obligation rests on good faith), unless both sides call men to witness that they are going to embrace peace when the war is finished. And it is of no avail to have signified that one is not going to use the licence of hostility herein, for this implies the demand that the other party follow my pledge of good faith, as is the case in pacts, while implying none the less the profession that one desires to remain an enemy, that is, one who wishes to do him harm in any way whatsoever. And, as we said above, the fact that those who make the contract have by that very act renounced the excuses which, drawn from the person of the other, might cause fear, does not prevent the other party from deceiving his confidence. For that presumption cannot obtain among those who still expressly profess the continuance of hostilities between one another, and it is rather to be presumed that they want to deceive one another by fictitious proposals of that kind. Nay, not even to the other party who is deceived by a pact of that kind can any new right arise against the deceiver, since, forsooth, hostility itself already furnishes the right of exercising violence to an unlimited degree against the enemy, at all events without impediment to some right which exists in the very enemy.20 And thus, if we should follow the law of nature alone, we shall assign no efficacy to pacts of that kind, except the amount shown by the immediate exhibition of the thing agreed upon, or the ready faculty of returning to the deceiver like for like. Nevertheless, as the usage of the more civilized nations has brought into being a number of things favourable to martial fortitude, so it has also brought it about that such pacts as do not pertain to ending a state of war, ought to be valid. Of this kind are a truce of a few days for burying the dead, pacts with the presiding officials of cities which are surrendering, pacts for sending off to their own side persons with the faculty of immediately taking up arms once more against us, a promise about granting the right of passage through our lines to definite enemy persons, and the like. So, likewise, it has come about also from that same usage, that enemies can validly make a convention on the subject of a restriction of hostilities and of an exercise of hostilities with a definite degree of moderation, as, for example, that specific places, seasons, and persons should be immune from hostilities, either altogether, or at least from some definite kind of injury, likewise that specific instruments of doing injury should not be employed, &c. For it seemed to be expedient to human interests to establish certain kinds of arrangements, as it were, in war, after it appeared that, as a result of the lust for warfare, the number of those who were destined to suffer what they had not deserved, would be no smaller than that of those who were going to inflict it.
23. Now, although in order to contract an obligation between men it is in due course required that the consent of both parties to the agreement be expressed by customary signs, nevertheless, it is usually the case that a pact is made without the expression of agreement in signs to the form of the pact, but simply on the presumption of willingness which is drawn from the nature of the transaction that takes place between the contracting parties, and these are called tacit pacts. They are contracted in such a manner that they form either the principal transaction, or are understood to be accessory to an express pact, and to proceed from the same. To the first class belong such cases as the following: If, for example, some one should come as a stranger to a state which is in the habit of treating outsiders in a friendly manner, the stranger, although he has never expressly pledged his good faith, is, nevertheless, regarded as having pledged his good faith, both tacitly and by the act of coming, to a willingness to accommodate himself to the laws of that state in accordance with his status. And so he in his turn has tacitly stipulated for his own temporary protection on the part of the same state. Thus, when a man’s business is carried on in his absence, there exists a tacit pact whereby, after one has accommodated one’s services to the concerns of the other, that other is bound to recompense the services together with the expenses incurred. Thus, he who seats himself at a table in an inn, although not a word has been exchanged with the host on the subject of price, nevertheless, from the very nature of the case, is understood to have obligated himself to pay the price, because it is notorious that food here is not given gratis to any chance comer. To the latter class belong cases of the following kind: For example, if some one agrees with a second party about conceding the right of entrance to a certain place, he is judged to have made an agreement also about the right to return from the same place, although no express mention of this has ever been made; because otherwise nothing would have been achieved by the former pact. Thus he who agrees to the pact that outsiders may purchase merchandise in his own state, is definitely understood also to have agreed that they should export the same. Just as also it is absurd, for example, to sell you a field, but not to be willing to concede that you should possess the same in that place, but to demand that you should transport the field to some other location. Thus he who rents me a room in his house is also judged to have rented me the use of those parts which we cannot do without, that is, the door and the passage ways which lead to the room, as far, at least, as is necessary in order to go out of the house and to return. Now in tacit pacts of that kind we are bound to that for which those who expressly make a covenant about such things are commonly in the habit of contracting.
24. Furthermore, since in any and all obligations in the person whom they regard, or for whom some right is being sought thereby, is required the consent of the other party to accept the obligation or the right which has been transferred thereby, and that consent either in his own person, or as represented by another, has been expressed by signs attesting the feeling in his mind, it is obvious what should be thought of vows or obligations voluntarily undertaken towards God. Of course they cannot be undertaken validly unless either God himself has revealed that He will accept them, or some one has been appointed to take cognizance of them among men. For otherwise, a man cannot be certain whether God wills him to be under obligation, or, indeed, not; especially since vows ought to be taken relating to matters of a kind which God did not previously demand from us in the way of command, but which were subject to our own free will, whether, namely, we wished to do them or not to do them. For there is also implied a desire to impute to a second person that which otherwise must necessarily have been done, as a deed which he was not under obligation to perform, and we cannot be assured, except by divine revelation, that some act which was neither a prescript of the law of nature, nor otherwise a precept of God, will be grateful to Him. And so it is useless to take on vows about which there is no assurance that they will be grateful to God; and it will be permissible to observe or to retract such assumed vows, to the extent to which the tenderness or the firmness of each man’s conscience persuades him.
Now the following is clear, namely, that towards brute beasts men cannot be under obligation, since, forsooth, there is no communication by signs of consent and of willingness with that which has no communion in right with us; for, as to the fact that a person is bound, for example, to care for the horse of a second person, to harness it, to feed it, not to injure it, &c., that obligation applies not to the animal itself, but to the man who owns it.
25. Another question must here be cleared up, whether, namely, by one’s own act one can put somebody under obligation to any third person. Here we must proceed with careful distinctions. For there can be no doubt on this point, namely, that a man can validly put the person over whom he has sovereignty under obligation to furnish something to some third party, and to do this so that a perfect or an im-perfect right to have that thing be acquired by this same third party; just as there is no doubt about this point also, namely, that one person can be put under obligation to a third by the agency of a second person who is legitimately conducting the first person’s affairs, in such wise that every right is acquired by the third person and not the second person; and so, if the obligation be not fulfilled, the third person only, and not the second person who comes in between, secures ground for action. For those actions which we have openly promised to recognize as our own produce for us an obligation and a ground of action, and are regarded as our own actions. But if I confer on some one the authority [autoritatem] to transact my business under the general formula that I will accept whatever he has done therein, I am under obligation by that person’s act, even if, perchance, he has done something beyond the private instructions which I secretly gave to him to be followed in that matter. For, by the former instrument, I put myself under the obligation of ratifying his acts to the third party with whom the contract must be made, but by the private instructions I bind only my agent to follow my instruction which is known to him and not to others, unless, perchance, it should be manifestly apparent that my agent has acted in bad faith and by nefarious prevarication has betrayed my interest. For, under those circumstances, I am not regarded as being under obligation by virtue of his deeds, for the reason that in conferring upon him authority [autoritate], the condition was tacitly supposed, that I did so only in so far as it might appear that he was acting with good faith in the matter. Furthermore, since every one is presumed to have enjoined upon those persons placed under his authority that they make his own condition better, if they can conveniently, the reason is apparent, why, for example, it is to the advantage of a master or a father, if a slave or a son of a family make a stipulation, so that it be not sought from the father or the master. For such persons are regarded as making agreements by the authority [autoritate] of the head of the family, and so in his place. But the same situation is by no means presumed to obtain in matters disagreeable, or such as make his condition worse. However, it cannot be that I as an outsider should bind a second person to some third person under whose authority I do not stand, and in charge of the management of whose affairs I am not placed, and do so in such a way that I should stipulate no right also for myself. For thereby neither do I seek to acquire a right, as we suppose the case, nor does the third person who does not recognize my action as his own; and so, as a result of my action alone, he does not accept an obligation, without doing which no right can come to him. Hence it was that the Roman laws rightly declared unavailing pure stipulations (or those which were drawn up without the addition of a penalty) made for the advantage of a third party;21 adding, as a reason, that stipulations have been invented so that every single individual may acquire what is to his own advantage; if, however, something be given to another, it is not to the interest of the stipulator. But by a penal stipulation, for example, “Unless Seius give Titius one hundred pieces of gold, he shall pay me fifty pieces as a penalty,” a right has been acquired by me, at least, if not by the third party, to such a degree, that, if he should not do his part first, I can bring him under my own name to the punishment specified, if that third party under his own name may be utterly unable to bring him to pay the former sum.
Now as for the common saying of the jurisconsults, namely, that the testator puts the heir under obligation to give certain legacies to a legatee, the expression is improper, arising as it does from the circumstance that, by legal fiction, all the goods of the deceased have been assigned the heir under the condition that he pay the legacies, or because the heir is the first person who is accustomed to act as the possessor of all the goods.22 But, as an actual fact, legacies pass directly from the testator to the legatee, and this is apparent from the circumstance that the legatee, without the intervention of any act with the heir, can bring suit to compel him to pay the legacy, if, indeed, the heir be unwilling, after taking possession of all the goods, to fulfil the wishes of the testator.
But what should be thought about a pact of this kind, where, for example, when two parties are quarrelling with one another, two or more parties who had not been invited by the litigants, agree that they desire to offer themselves as arbitrators, and draw up definite terms in accordance with which the two parties first mentioned must make peace, announcing that they intend to treat as an enemy the one who refuses to accept these terms? Here this much is clear, that those persons who arrogate the function of arbitrators can validly put themselves under mutual obligations by an agreement that they shall not take part in that war between the former parties otherwise than as has been agreed, and that the rest acquire the power of forcibly compelling the one who acts contrariwise to abide by the pact. Although it is necessarily required among arbitrators of this kind, that there rest upon them no special obligation to render aid to either of the belligerents. For, when this obligation obtains, it is impossible for him who has taken sides to act as an arbitrator. But, in truth, it cannot by any means come about that these same would-be arbitrators by their decree put the parties to the quarrel under an obligation, and acquire a just ground for making war upon the recalcitrant. For, as the case is supposed to stand, the parties to the quarrel have never made any promise to them, or subjected themselves to their arbitration, from which acts, perchance, some colour could be derived for taking action against the recalcitrant.23 Although there is this difference between a judge and an arbitrator, namely, that the former, by virtue of sovereignty, enjoins upon the parties to a quarrel the acceptance of his opinion, and this faculty does by no means belong to the latter. Now to take upon ourselves the decision of a controversy in which there is involved a second party not subject to ourselves, and to desire to force him to follow our own opinion, is to usurp a sovereignty which neither the law of nature, nor the consent of the second party, or a pact with the same, has conferred upon us. And the second party is so far from being bound to recognize such sovereignty, that he has rather the right to bring action for injury against arbitrators of that kind, as against those who presume to limit his freedom. But, in truth, it would be utterly intolerable if they should deliver an opinion without first looking into and coming to know clearly both sides of the case, and without hearing the reasons and excuses of the two parties. For it is perfectly apparent that persons who act in this way are not interested in bringing peace, but are looking for a pretext to take part in the war.
26. It should be observed, furthermore, that several persons, as long as they have not united to form a single composite moral person, act and contract as individuals in whatever actions they take or whatever contracts they enter into, and so the number of separate actions and obligations is the same as the number of the persons. From this it follows that, even if a man be in some large group with which he has not joined so as to form one moral body with it, and in that group the majority, or even all the rest, are performing some act or entering into some contract, but he himself has not consented thereto, or otherwise taken part in the same, he should be regarded as not having acted. And so the stranger is not bound by the acts or obligations of that state in which he is living, such acts and obligations having been contracted by the same state as such, at the time when he was there, unless he has himself in a special way concurred in those acts and obligations. However, when a number of persons of that kind enter into a pact as individuals with individuals, to the effect that they desire to have their affairs of a definite kind attended to in common with the others, if, indeed, they have agreed to one single form of transacting these affairs, and afterwards, when some form has been agreed to all around, they have contracted with some definite persons for undertaking the oversight of the common property—pacts of that kind are equivalent to a bond whereby all those who have so contracted partake of the nature of one moral person,24 whether that be a family, or an association, or a state, or under whatever name it be listed. The result is that whatever action is taken or whatever contract is entered into by those to whom has been entrusted the management of some common property, all those who are included in that society are understood to have agreed thereto, and to have contracted an obligation therefrom; with this proviso, however, that all together are bound by one obligation (not each by a separate obligation), which has the same character as the obligations that have been contracted between individuals, unless in some way an agreement among the nations has introduced some special observances about the same.
27. There are, accordingly, two pacts which combine in the establishment of a society, and primarily of a civil society.25 One is the pact of individuals with individuals, to the effect that they desire to have their affairs which are mutually intertwined, administered by common counsel; the other is the one which is made with those to whom the care of the common welfare is entrusted. In the former pact the consent of each and all is necessarily required, and the one who does not express his consent is not at all bound by the plurality of votes to join himself to that group, but remains outside the society. This pact, furthermore, is either absolute, whereby a man absolutely binds himself to adhere to the group in question, whatever form of administration may finally commend itself to the majority; or else it supposes as a condition the introduction of a form of government which the individual approves of. In the latter case, likewise, the consent of individuals is required, and the one who does not signify his consent is not regarded as a member of the society. Moreover, in the former case the consent of the majority is accepted as the consent of all together, and so, by the force of the former pact, even he who is not pleased with the form of government will be put under obligation by the plurality of the votes. For, since he who puts himself so absolutely under obligation to some group cannot demand that all the rest should follow his opinion, he is regarded as having obligated himself to ratify what the majority has approved; since otherwise no method of transacting business could be found, and without that obligation of himself on the part of the individual, most pacts of that kind would amount to nothing. The result is that in almost all societies which are administered by a number of persons, it has been recognized that the votes of the majority have the force of the votes of all together, even if it should sometimes happen that the opinion of the minority is more conducive to the common interest and more reputable. For, about general arrangements of that sort, since practically no faultless means are found for conducting transactions, the most expedient is the one which should be followed. Therefore he must be extremely inexperienced who wishes to argue thus: “Since it is in accordance with nature that the policy which the more prudent propose should prevail over that which is proposed by the less prudent, it is repugnant to nature that the less prudent opinion of the many should prevail over the more prudent opinion of the few, and that therefore the former should be able to obligate the latter to undertake something less prudent.”26 And it will be much more absurd if this contention be extended also to monarchs, and if their subjects should not be obligated by the less prudent pacts or commands of the same. For it implies that there is a monarch, and that his subjects have the faculty of judging whether his acts have been undertaken prudently or otherwise, with this effect, namely, that, if they seem to have been less prudent, the subjects cannot be obligated by them. Nor can the former position be admitted any more than this latter. For who will render the decision as to which of two opinions is the more prudent? Certainly not the dissenting parties themselves, for one side will not accept the judgement of the other, and how many persons are there who will not prefer their own judgement to another’s? Therefore, one will have to abide by the decision of yet another party, a position which is involved in no fewer difficulties, since the prudence or the integrity of the arbitrator can readily be called into question, so that to settle this point one will need another arbitrator, and so on endlessly; not to mention the fact that generally those matters are so constituted that they cannot be laid conveniently before arbitrators outside the society. Accordingly, it has seemed best to adopt a method of a kind which has no difficulty or obscure occasion for dispute about it, and that is the number of the voters; especially since the presumption of prudence commonly militates in behalf of the majority, at least in regard to matters which are open to the common perception of men. Nor does the law of nature demand forthwith that those obligations be ineffectual which have been undertaken by the less prudent, or in a somewhat imprudent fashion. For, since the matter at stake is merely some advantage or disadvantage relating to the good things of fortune (for that pact is properly said to have been entered into imprudently which brings some disadvantage to the good things of fortune), assuredly man has the authority to neglect some advantage or to allow some disadvantage in the case of those good things, and so he will be able by the law of nature to obligate himself firmly by virtue of such a pact which has been somewhat imprudently undertaken.
28. Now that it be possible to judge clearly just what obligations on the part of the rulers of a society are binding upon the individual members, and for what reason, and, on the contrary, what obligations from the acts of members redound to the directors or the members themselves, three things must first be noted. (1) Certain obligations arise from convention or from some pact; certain others from a transgression.27 (2) Among pacts some are terminated directly and ultimately in the individual person, as it were, of the party to the pact; and certain others tend indirectly or directly to the society and its affairs, and exercise their ultimate efficacy therein. (3) In a transgression there is either guilt extending to the person of the delinquent, or else obligation to make restitution for the injury done, which comes upon the goods of the delinquent.
On the basis of these principles we make the following assertions: (I) Obligations arising from a pact ultimately and directly terminated in the person of some one, do not bind individuals other than the very person of the party to the agreement. Thus, for example, a marriage pact is directly and ultimately terminated in the persons making the contract with one another, and so it will not bind other persons at all. From this it follows that if a prince has promised marriage to some woman, no one in the whole state beside himself will be bound to take her to wife.
(II) In transgressions guilt does not pass to other persons included in the society, unless they have themselves agreed to it by an efficacious consent, by rendering aid, or by some other means.28 For it was not in the power of others to prevent them from happening, either in their own persons, or in their own cause. Not in their own persons, for that is the situation supposed, nor in their own cause, as, for example, by the force of a pact whereby they have merged into one moral body with the delinquent. For that pact on the side of the sovereign introduces, indeed, the obligation to prohibit transgressions on the part of the members of the society, in so far as that is necessary to the preservation of peace, but only in a moral way, that is, by promulgating laws, threatening punishments, and appropriately executing the same. Now he is by no means bound to a physical prohibition, that is, to bind the physical faculty of action in such a way that nothing at all can take place. For this is opposed to the nature of men, and utterly subverts the course of human life. So a prince or a magistrate, if he has not neglected to announce a moral prohibition, contracts no guilt from the fact that a transgression has been committed by an old subject or a new-comer, or by one who, after committing a crime in one state, flees to another. Nevertheless, it were well, if, on being advised thereof and entreated, as best he could, and, as in his judgement it was best for the commonweal, he shall have neglected to inflict punishment. Now a subject does in no wise participate in the transgression of another subject, unless he has in some way or other concurred therein. For both the faculty and the obligation to prohibit the misdeeds of a second party proceed from authority over the second party or sovereignty, and there is no such thing between subjects. For equality makes it impossible for one person to be responsible for the deeds of a second person, since, forsooth, the effect of a moral prohibition comes thereby to naught, as will be apparent from what we shall say on the subject of law. Nor, indeed, do subjects contract guilt from the misdeed of princes, unless they themselves have directly contributed to it. For neither by virtue of their present status can they or ought they to prevent it, not even in a moral way; nor, on the basis of that pact whereby they have bestowed such authority upon the prince that they cannot bring him to order, does his guilt redound to them. For by that pact they did by no means bind or impel him to do wrong; and much less have they acquired, after the sovereignty has been bestowed upon him, the authority to prohibit misdeeds, which, before that sovereignty had been bestowed, they did not have over him as an equal. For this latter clearly implies, as did also the former, that authority between a prince and his subjects is, as it were, reciprocal, so that he may or should restrain their transgressions, as they his. From all this it is patent that a magistrate cannot be punished, in the proper sense of the word, for the transgression of a subject, unless he has failed to perform something that he should have performed in prohibiting it; nor can a subject be punished, in the proper sense of the word, for the transgression of a fellow citizen, or of the prince himself, unless he has participated in it, either from the very beginning, or after its commission.
(III) Obligations arising from a pact made by the prince or the directors of a society as such, or obligations arising from a transgression of the same, bind the whole society and the individual members, each for his proper share, to the extent of making restitution for the damage done. The basis for this assertion is to be sought in the pact between subjects and their rulers. For those who commit to some person sovereignty and the care of the public welfare, as well as full authority to make disposition for the same, by that very act obligate themselves to contribute, each his own share, to what he has enjoined upon them as necessary or advantageous for the public welfare. Now all the obligations which the one who bears authority contracts with others relative to some public business are presumed to look to the public welfare; nay more, whatever their character be, they ought to be regarded by the subjects as such, forasmuch as the subjects do not properly have the faculty of taking cognizance of or judging about the means employed by the one who bears authority, in order to ensure the public welfare, that is to say, of taking cognizance or judging, with the effect that their obligation depends upon their own judgement. For the absolute right of sovereignty which we are here supposing altogether rejects that. From this it is clear that subjects are bound to pay any and all debts contracted by princes for the public good.29 But as far as concerns the private indebtedness of the same, if, indeed, they have had definite revenues for their private expenses, on the basis of the law of nature it seems that subjects are not directly and immediately bound to pay such indebtedness, and that creditors have the right to bring an action only against the private property of princes. Nevertheless, since by custom it has become recognized among the nations that all the goods of subjects are obligated to meet any debts whatsoever of princes, it will be permissible to lay hands upon these also, primarily because princes may, and do habitually, use the strength of their subjects to keep from being compelled to pay their own private debts. But if a prince has not rendered to a second person those things which he has obligated himself to render, the people will be bound not merely to pay the original debt to the second person, but also to make good the loss which results from the refusal to pay, although, perchance, as individuals they may never have approved that refusal. For the retention of the debt is adjudged to have been done likewise for the good of the state, and to be making for its advancement, since, forsooth, to retain what one was otherwise bound to pay, amounts to a gain, and all goods whatsoever of individuals included in a civil society are in a definite way reckoned also among the goods of the state. And this holds true, even though no one participates in the guilt of perfidy but the man who has especially made it his own.
29. However, obligations which individual citizens assume with fellow citizens or aliens do not directly bind the rest of the citizens or the directors of the state, unless they have drawn them upon themselves by some act of their own. And, indeed, from the obligations of individual citizens among one another the obligation is drawn upon the one who bears authority, in the following way: that is to say, when one of two persons on his own initiative refuses to render what he owes, and the one who suffers injury thereby has implored the aid of him who bears authority, by virtue of his office the latter is bound to the extent of his power to see to it that the injured party attains his right. When he neglects to do this, by the law of nature he himself is under obligation to make good the loss to the injured party. But, in truth, because of the force of sovereignty that obligation does not give the injured party the faculty of summoning the one who bears that authority before a human court of law on the subject of that debt. For this reason neither are the rest of his fellow citizens bound to render satisfaction to the injured party, nor can he under any title demand the same from them; since, forsooth, the citizens entered into a pact with one another to the effect merely that they were willing to refer their controversies to those who bore authority over them, and to obtain their right by the help of the same, and, moreover, have submitted themselves absolutely to their judgement, a thing which outsiders have not done. Thence it follows, that, if a citizen owing something to an outsider refuses to render it to him, and the injured party has in vain implored the aid of the rulers of the state in the matter, not only are the rulers of the state bound to make good that loss, but also, after them the whole state; since, forsooth, it is imputed as a profit to the state if some fellow citizen has not paid what he owes to an alien. In cases of this kind, however, by the law of nature princes are put under obligation primarily and individual citizens after them, and the latter not for the whole debt but each for his share, just as those who unite to form a society obligate themselves to bear its burdens not as a whole, but each only for his own share. Hence the outsider suffering from the wrong ought first, indeed, to have sought his right in the prince and the prince’s own goods, and could not exact the whole of that in which he had been injured from some one citizen, or a few citizens, but only what each man’s share amounted to. But, of a truth, because it was most difficult for outsiders to attain their right in this fashion, by the usage of nations the custom has been introduced of understanding that all the corporeal and incorporeal goods of those who are under a society or a head are bound, and, as it were, tacitly pledged to meet the debt of such a state or of such a head of the state, whether that debt be original, or derived upon it by the denial to others of justice; and this holds to such a degree that not merely is each bound for his proper share, but even eventually for the whole, in such wise, however, that his own state ought to restore to him what he has been compelled to pay beyond his portion. Hence an outsider who cannot obtain from some state what is owed him, can lay hands upon the goods of any citizens whatsoever of that same state in an amount equivalent to the sum due him. Necessity has compelled the exercise of such a right, since, forsooth, frequently a man cannot lay hands upon the private property of princes as easily as he can upon that of ordinary persons, who are more numerous, and the members of some society can customarily obtain their right among one another more easily than can outsiders, of whom often very little account is made. Also there was this common advantage for all people from that obligation, namely, that those who were at present harassed by it, might at some other time be assisted thereby. Nevertheless, if a man care to examine into the question minutely, he will find the foundations of that matter in the very pact whereby states are constituted, and in consequence of the very law of nature. For although those who unite to form states do by no means destroy or confound the ordinary ownership of things, or introduce a community of goods (where that had been brought about, since everything which one had acquired by a pact with an outsider had accrued directly to the public property, without doubt also the same goods would be held by virtue of the fact that the second party in that pact had promised him an equivalent value, as it were), nevertheless, since all the possessions of individual citizens have been made subject to one person by virtue of eminent domain, they are understood to have coalesced also into one body, in so far as they contribute to the preservation of civil society. And so he with whom rests the power of eminent domain, that is to say he who has supreme authority in the state, can order the citizens to contribute the amount which each one ought to contribute in order to meet the public expenses, or, when necessity does not admit of delay, he can order them to take as much as the situation demands from a few persons where it is most convenient, on the understanding that restitution is to be made afterwards to these few by all the citizens together. Furthermore, since that same eminent domain has been established also for the purpose of preserving the goods of individuals, and the more extensive these are, the more easily individuals endure public burdens, and so whatever goods come to the members of that state, they redound in some measure to the advantage of individuals; it results that individuals also can be bound in a definite way on the basis of the obligation which follows all goods whatsoever which are included under that society. This happens primarily when some outsider cannot attain by an ordinary road to that which is owed him by some member of a second state. For under those conditions the favour accorded me by the law in my effort to secure what is owed me, seems to grant me the right to appropriate to myself that which is my own out of the goods of any person whatsoever belonging to that society, by the strength of which, arising as it does from the union of individuals, my debtor is protected. This same position the usage of nations has approved. And from these sources the right of reprisals is to be derived.
30. Furthermore, the following general observation must be made in the matter of obligations which bear upon the property of the man who contracts the obligation, namely, that together with the goods they are transmitted to the heir of the original debtor. Such are the obligations which have to do with rendering to another some property which is commonly the subject of commercial transactions among men. For, in the case of these, there is primarily given to the second party the right and ground of bringing action, to the amount of the debt, against the goods of him who puts himself under obligation. The result of this is, that, although the heir is not bound by the transgressions of his predecessor, nevertheless it is possible to reach some agreement concerning his debts, since, forsooth, the creditor had a prior right to those goods before the heir.30 Now in societies, and above all in the state, debts always adhere to the society until they are paid, although the individual members of the society have been changed, nay more, even if, perchance, no one still remains alive of those who originally contracted that debt; yes, and even though the accidental form of the state may have been changed, for example, if it has been transformed from a monarchy to a democracy, or vice versa.31 For all who unite themselves to that society are understood to be obligating themselves to endure its present burdens, quite as much as stipulating for the acquisition of its present and subsequent goods, and so he who is now a citizen is bound to pay also his proper share of the debt which the state contracted many years before. States, too, have this in common with other societies, namely, that although different members succeed one another individually, and change, nevertheless the states themselves remain perpetually the same, as long as they retain the bond and continuity as well as the unity of the community.32 But if, in truth, the citizens have divided to wage civil war, and so have broken up into two parties, then it is certain, that, as long as dissension remains, one part is not affected by an obligation contracted by the other part. But when those who have been at variance return once more to concord and form a single state, it must be carefully decided just which part retained the equivalence of the commonwealth, and which part had the appearance of rebels, or of the seditious. The former is adjudged to have done all things in due order and as on the basis of legitimate authority, and it imposes on the other part the necessity of approving the things which it has done, and so after secession the seceders, once more united, are obligated to pay the debts contracted during the interim, even though contracted with the purpose of bringing the seceders themselves back into line. This situation does not obtain in the case of the seceders. For they are adjudged to be acting as private citizens in whatever they have done, and so their debts do not devolve directly upon the state, unless either there has been some special agreement to that effect, or else they themselves have vanquished the rest and taken to themselves by force the supreme [sovereignty] of the commonwealth. But when it is difficult to determine, the dignity of the two parties remaining equal, just which part retains the equivalence of the commonwealth, the question will have to be adjudicated by agreements, if, indeed, they have had their difficulties composed by peaceful means (when the equality of the parties urges the creation of an equal obligation, in such wise that all together pay the debts of both); or else, if an end is put to the dissension by the sword and by force, victory will show which part is to be regarded as the commonwealth. But if, in truth, some one has seized upon the state by the right of war, none the less may they to whom that state had been under obligation of indebtedness, demand the payment of their debts out of the possessions of the state, from the one who has seized it, if, indeed, they have been outside that state and were not the enemies of the one who has seized it. For there is here no reason why his right ought to be taken away from a third person, a right which, based upon property of that state, can be made good against any possessor whatsoever, in so far as the latter has not alleged a more valid right. But if the creditor be included in that state, such right on his part will redound to the victor by virtue of his victory.
31. From the same principles also it can be deduced that the treaties formed by a people among whom the supreme authority is in the hands of more than one, are real, as they say, or last continuously, even if the persons administering the commonwealth have changed; since, forsooth, as has already been said, however much the persons may change, the state is regarded as being always one and the same, composed of men now present and their successors. But, in truth, in a monarchy it is more difficult to make clear whether a successor to whom the supreme authority is transmitted directly of full right, is bound by the treaties of his predecessor, when they have not been expressly restricted to the predecessor’s person.33 Here the question is not properly one of pacifications, nor of pacts of the kind whereby a certain right has been transferred from one of the parties in an agreement to the other, as is the case in gift, sale, and similar contracts. For by pacifications previous injuries which furnished a cause of war are utterly extinguished, conditions being satisfied on both sides; and by pacts of the latter kind, he who transfers something retains for himself absolutely no right in it. That is why the successor can neither do away with a peace which has been made by his predecessor, unless some new cause arise, nor take up anew contracts or donations, unless, perchance, these were invalid in some point of law. Nor is there properly any doubt about a case of this kind, whether, namely, after the obligations of a pact have been met by one party, and the other party had died before he could meet his obligations also, the successor is bound to render equivalent value. For, since that which was rendered on condition of recompense has gone to the use of the commonwealth, or at least was turned over with that intention, it is, of course, patent that, unless an equal amount be repaid, the second party retains a right to the property which was conditionally turned over, and so he who has succeeded to authority over it is bound to restore the thing turned over, or what was mentioned in the agreement as its equivalent value.
There remains, therefore, only the question whether, on the basis of an agreement which had been entered into by one’s predecessor (having to do with a mutual rendering of things previously not owed), whereby either nothing had been rendered as yet by either party, or else what had been turned over between the two parties was equal, the successor also is obligated, before he has bound himself to that agreement by his own consent. Here some others have found it most convenient to decide the case on the basis of the exact form of the agreement; to wit, that it is regarded as a real pact, if the proviso has been added that it is to be permanent; if it has been made for the good of the kingdom, or been made with the prince and his successors, or for a limited time; likewise, that there comes to be a basis for conjecture in the material itself, to the effect, namely, that agreeable pacts are believed to be real, but disagreeable pacts to be personal. But, in truth, after a very careful inspection of obligations of that kind, it is perfectly plain what in general must be laid down as a definition here. It is certain, therefore, that obligations are primarily binding upon those very persons who contract them, or in any fashion whatsoever make them their own. And so, on the basis of the law of nature, there results from all obligations the right to bring action against a person. For the rest, in due consequence, obligation carries over also to the property of the man who obligated himself, to wit, that I can acquire what is due me on the terms of the obligation by laying hands upon the property in question. And so any one whatsoever in obligating himself is understood to be giving a second person the authority to lay hands upon his own goods, if, indeed, he does not render what he owes. And this happens in a twofold respect, either because his own property has been increased by that which the second party has already rendered, or else because he can be compelled by his love for his own property to render what he owes so as to avoid an invasion of his goods. The result of the first respect is that, even after the original person is no more, the obligation inheres in his property, so that even though those goods of his may have devolved upon an heir, nevertheless the second party may out of them appropriate to himself what is owed him. But the second respect disappears with the person himself, because the reason for it is based merely on the fact that a person is rendered wretched by the invasion of his property, and so can in this manner be impelled to pay his debts. Now since the kingdom is counted among the goods of the king, it is readily apparent that, in the case which we have assumed, upon the death of the king the obligation is no longer based upon the kingdom, and so he who succeeds to that possession is not bound, at least on this consideration, by the compact of his predecessor. There is left, therefore, the case that the predecessor himself has directly and expressly transmitted his own obligation to the successor. But, in truth, it is obvious that a second person cannot fasten upon me an obligation, which is to be valid even after his death, unless the authority to exact that obligation from me has been conferred upon some one of those who survive him, and that either a man, which cannot be the case among those who rejoice in supreme authority, or else God, as comes about by a sworn oath. The conclusion from this is that a successor is not bound by the agreement on the part of his predecessor, being of the kind just described, before he obligates himself by his own consent, unless he has made promise under oath to his predecessor that he will continue to observe that agreement; although on this score the obligation is destined to be valid, not so much on the basis of a proper right resting upon the agreement of his predecessor, as because of reverence towards the Divine Spirit.
32. As concerns their material,34 obligations can be contracted about any matters whatsoever, which we have either the faculty or the authority to furnish. For, when something has been put within my power, and I have the authority to dispose of it, then nothing keeps me from binding myself by a certain bond of necessity to turn it over to a second person. From this it follows that it is impossible for any one to obligate himself effectively with regard to a thing which is put beyond his own power, or has not been placed under his authority, or in regard to which he fails to have a natural or moral faculty. Here, however, should first be noted in regard to the former condition, that it can happen that an obligation about a matter which for the present is put beyond a man’s powers, may not lack all efficacy, when, to be sure, either a possible thing has been entrusted by one of the two parties to the agreement, or else it is due to a man’s own fault that it cannot be discharged by him. For he who has made a promise about something which he thought was possible, after it has been found to be impossible, is certainly bound to furnish it as far as his strength admits in that case, at least when time has, perchance, brought him the faculty of furnishing it; or else to make up in some other way what is lacking, for example, by offering an equivalent value, or by remitting what corresponded to that matter in their mutual relation of furnishing things to one another. For he who enters upon a pact with a second person about any matter, considers primarily, indeed, and directly, the matter which has been mentioned in the pact, and indirectly some other good for himself which has the same value as the matter expressed in the pact. For, of course, a person in a pact furnishes one thing altogether with the purpose of acquiring something else which is of advantage to himself. Therefore, it is understood that, when he cannot secure what he has expressly designated, he desires to have furnished him something else of equivalent value, so as not to be suffering loss himself while the other party is making gain. And this holds, unless something impossible was promised with the intent to deceive. But, if both parties know that the thing is impossible, and if each knows that the other knows it, they are judged merely to have been jesting, and so not to have concluded any contract. But he who promises something which was possible at the time of the promise, but has since become impossible, if, indeed, that change came about without any fault on his part, nevertheless owes it to put forth his utmost effort; but when this change has been brought about by his own fault, he renders himself liable also to punishment. Thus, he who by some unforeseen turn of fortune is unable to pay, is bound to labour to the utmost extent of his powers, indeed, so as to discharge the debt, taking also some time to do so; nevertheless, he cannot be subjected to punishment on that account. But he who has wasted his resources by his own fault, beside being bound to do his utmost to pay, is also making himself liable to punishment.
33. Now a number of men have raised here the very thorny question, whether, namely, a man can obligate himself to endure evils which commonly surpass our fortitude of spirit, for example, whether a man can be obligated by his own pact not to resist one who is inflicting death or wounds upon him. And to this question they answer, No, for the following reasons.35 Because, out of a certain natural necessity, it is not possible that any one should fail to avoid these evils, and no one is bound to the impossible. The same is found to be true in the case of those who are being led away to punishment, and who are under the compulsion of attendants or bonds, but we trust the man who is bound by a pact; therefore, it does not appear that those persons have been adequately obligated to non-resistance by pacts. They contend, furthermore, that such a pact is unavailing; for in a state it is sufficient if the state should stipulate by a pact that no one should defend the man upon whom punishment is to be inflicted. Now outside the state, since such a pact is referred to another pact which comes into play if the first be not fulfilled (for example: “This I will do, and unless I do it, I promise that I will not resist the one who comes to put me to death”), it likewise will be unavailing. For, if the second party has violated the former pact, the parties to the pact have already come to be in a state of war with one another, whereupon the latter pact also immediately expires. Finally, by a pact of that kind, not to resist evil, we are obligated to choose of two present evils that which appears to be the greater; for certain death is a greater evil than a fight; and yet of two evils it is impossible not to choose the less. Therefore, by such a pact we would be bound to do the impossible, and that is repugnant to the nature of pacts. The last reason, however, can scarcely be allowed, because it might appear possible to infer from it, that the force of all obligations whatsoever expires, as often as a man has come to the conclusion that it is worse for him to stand by the obligation than to withdraw from it, and on that reasoning the whole efficacy of obligations would depend upon each individual’s good pleasure, not to mention that, for an obligation to be binding, it is not required that its violation may not sometimes appear more desirable than its fulfilment. On the contrary, the efficacy of a contract still persists after it has been judged to be preferable to violate it, with the result, namely, that the second party, by virtue of the same, has the authority to secure his right from the other by force. But, of a truth, it is readily apparent from the nature of pacts, what judgement should be rendered upon this question. For the force of pacts ultimately comes to this, namely, that the obligator has the authority to exercise forcible compulsion upon the obligated when he goes back on his promises, or even to inflict evil upon him directly or indirectly for this reason. To enter upon a pact about suffering this evil without reluctance is utterly absurd. For, since there is no efficacy to an obligation except a person be restrained, as it were, by the fear of some evil which is to arise from its violation, the said pact would again have to be buttressed up by another penal pact, and this again by yet another, and so on endlessly. And, truly, it is quite useless to desire to bind some one twice with the same kind of bond in regard to the same thing. For, if the first be broken, the second also falls immediately. Therefore, there is no reason why a second person should be bound to suffer a penalty without any reluctance on his part.
From this it follows also that no one is bound to accuse or to inform upon himself. For the tortures which are applied to the accused are properly neither accusations nor testimony, but are aids in extracting the truth. And so men are not customarily submitted to investigations unless there already exists some pretty clear evidence as to their misdeeds, and that is because judges are commonly unwilling to condemn any one, unless he himself admits that he is not being wronged thereby. Nor should he be judged to have broken his obligation who under torture has denied his deed, or has made no answer at all. Now in oaths of clearance, which are treated as the equivalent of moral torture in cases that are not capital, one may not, because of reverence for the Divine Spirit, conceal the truth, although the judge, as far as he is concerned, may seem to be giving the man to whom he administers the oath, the choice either of confessing as true that which will bring some inconvenience upon himself, or of renouncing claim upon the divine mercy. The latter, however, no one is presumed to do.
34. We are unable also to contract an obligation about those things, over the disposal of which we have lost the moral faculty or authority. Of this sort are matters forbidden by the laws. For he who by law forbids any one an action, takes away from him, of course, the authority to undertake it, and, in consequence, the faculty of obligating himself to another to perform it. Therefore, he who has covenanted to commit a sin, sins twice if he should keep his pact, even if he has also interposed an oath. Here, however, it should be noted that certain things are forbidden by laws, and yet, when a contract has actually been made about them, the obligation is not rendered invalid, even if the contracting parties be generally subjected to some punishment or fine therefor. And this is almost the usual thing in the case of acts which are in themselves licit, but in which the contracting parties have neglected some circumstance that is necessary merely in the civil law. Here, even though, perchance, the obligation be invalid on the basis of the civil law, nevertheless it will be valid on the basis of the law of nature. Thus also, on the contrary, many things which are done against some duty of the law of nature, because civil laws make no regulation concerning them, are not immediately held invalid or null in a human court of law, although there be a sin against the law of nature, quite as much when a man obligates himself to such pacts, as when he performs the same.
35. Furthermore, just as there is no doubt that a pact about an illicit thing ought not to be observed, and he does well who withdraws before that illicit thing has been fulfilled; so, if that base deed has been performed, the question arises, whether a man be altogether bound to pay the reward for which the other had bargained to commit the act. Some say that he is, because a reward of that kind itself, or a promise before the crime, carries with it the discredit of being an incitement to evil, but that this discredit begins to pass away after the crime has been performed, when the force of the obligation which hitherto lay in pending efficacy, discloses itself, inasmuch as it had not been intrinsically lacking from the beginning, but was impeded by an added fault. But we are of the opinion that the law of nature has declared such pacts to be invalid; so also that the same law does not at all obligate the parties to an agreement to pay the reward for the performance of a base service about which they had made an agreement. For, on this score, that prohibition about not entering into pacts on illicit matters, would be of no avail, if by the law of nature the pact would be valid after the deed had been performed; since that would amount to saying: “Theft should not be perpetrated; but, if a man has stolen something, he can properly retain it.” And if the promise of a reward had a discredit about it before it was kept, because it was an incitement to evil, it will also not be without a discredit after the crime has been committed, because the rewarding of wrong is also the incitement to further evil. But if, therefore, a man has voluntarily, recognizing the turpitude of the crime, offered his services, and has stipulated for the receipt of a definite reward, you cannot at all believe that the law of nature is concerned to see that his wickedness should not have to go without its reward. For they allege the example of Judah’s being willing to pay Thamar, whom he thought to be a harlot, the promised reward as a thing which was due her; to which the answer can be made that, in this region, the carnal intercourse of an unmarried man with an unmarried woman was regarded as licit, and accordingly it was possible to make a contract about it that was valid, at least in civil law.36 But if with his promises and other solicitations a man has corrupted some one who was otherwise averse to crime, of course he is bound to pay him at least as much as he promised, not by the force of the pact, but on the basis of the law about making good the injury which has been done to a second person. Thus, for example, he who has induced a virgin to lie with him by promise of matrimony, is bound to marry her, not as the reward of lying with him, but to compensate her for the injury done to her chastity. And yet pacts of that kind have this effect, namely, that, because there has been agreement to them on both sides, if, indeed, one of the parties to the agreement has been compelled by the other through the exercise of force to fulfil his engagement, or because of failure to fulfil the same has suffered some ill, he has no just cause for making complaint on that score, nor is he properly regarded as having suffered injury, since the evil for which a man has given cause by his own fault, is not judged to be coming upon a person against his will. For by his own consent he brought it about that he cannot employ the protection of the law of nature, whereby no one is forced to a thing which is not due, and no one may be subjected to evil because of failing to perform a thing which is not due; and he renounced the favour of this law at the same time, that, as far as in him lay, he gave another the authority to demand something of that sort from him.
The same condition obtains in states where duels have been prohibited; for there neither can I rightfully challenge another, nor am I bound myself to answer the challenge of a second person, even after I have once given my word of promise to do so. And yet, if any man voluntarily enters a fight which is forbidden, and is wounded therein, he has none whom he may rightly accuse but himself, and he cannot complain that a wrong has been done him, or demand of the man who wounds him compensation for the injury. Thus, for example, if, contrary to the interdict of the civil laws, two persons fight to a conclusion with arms over an inheritance, on the condition that the victor receive the whole, if, now, the victor appropriates the inheritance, the vanquished has not experienced a wrong which enables him to lodge a complaint; nor is the judge bound to restore him to his full right, but he may mete out to both a suitable punishment, and besides, as it seems to him, he may either leave to the victor the property about which they fought, or else take it entirely away under the guise of a fine, unless it please him better to restore the property to its former condition.
36. Moreover, since the things and the actions of others are beyond our authority, it is readily seen that I cannot make a contract about them with a second person, so that the other by my act acquires a right to them. But when I make a contract in this wise with a second person, as, for example, that I will see to it that a third person furnishes a definite thing or performs a definite action for him, I am obligated to expend every effort morally possible to impel the third person to furnish that thing; but the second person does by no means acquire therefrom a right to the property of the third, nor can he demand it of him as though it were due the second person on the basis of that third person’s obligation. But if, now, I make a pact in this wise, namely, that, unless the third person supply something, I myself will be bound to supply it or pay a definite fine, it is manifest that, if I cannot obtain it of the third person himself, I ought to make it good to the second person. This is very much like the provision of the Roman laws, whereby, if any one, knowing it to be such, bequeathed property which was another’s (because no one is presumed to have desired his action to have no effect), the heir was compelled to purchase and turn over that property, or, if he could not purchase it, to give its equivalent in value.37 But if any one simply promises that a second person will give, he obligates neither himself nor the second person. Nevertheless, the things and actions of those over whom we exercise sovereignty are not regarded as belonging to others, as far as that sovereignty extends. For I can contract effectively about these, as about my very own, so far, indeed, that I am not merely bound myself to observe the pact, but also the second person, whose deed or property I engage for, is obligated by the force of the authority which I properly have over him, to fulfil my promise, in such wise, that, not from me alone, as the original promisor, but also from that second person, after my will became known to him, the third person may be able to claim his right. But I cannot also make a valid pact with a third person about my own things or actions over which a second person has already acquired a right, unless, perchance, this latter be willing to yield his right. For he who by former pacts had transferred his right to another, has himself, assuredly, no longer any such right left to himself which he can confer upon a third person. Also in that way all pacts could be evaded without any trouble by entering upon another pact, in which arrangements were made contrary to the former. And so, in this case, the later pact is rendered invalid by the earlier, or rather the earlier shows that a later cannot exist. And in this sense is to be accepted that trite dictum, “The prior in time is superior in right,” namely, not that time in itself confers any right, but because the prior in time has already acquired some right which prevents the later in time from being able to acquire a right to the same thing. On the same foundation rests also the principle, that, by the Roman laws, a servant could not be obligated to his master (aside from that general obligation which accompanies his own status as a slave);38 since, forsooth, already all of his useful actions and property were under the authority of his master; but neither could he be obligated to any one else, because the slave had no right of his own, but was under the right of a second person, and so he could not make any effective disposition about himself, as being the property of another.
37. On the same principle we are to understand also the following dictum, “A laxer obligation yields to a stricter, when it is impossible to satisfy both at the same time.” That is true because, of course, I am more obligated to one thing than to the other, when it is impossible to act upon both obligations at the same time, and so it follows that one person to whom I owe something, or who has fastened an obligation upon me, has an authority over me which the other either does not have at all, or else does not have with an equal effectiveness. And so when a man who is under a second person’s authority obligates himself to furnish something to a third person, it is always understood that he has added this limitation, or ought to have added it: In so far as it may be possible without infringing upon the obligation by which he is bound to his superior. But if, now, neither party with whom I am making the pact, has rightfully more authority over me than the other, that obligation which is prior in time prevails; and this is so because I can no longer make a valid disposition about the action or the thing which I am now owing to a second person. From this it is understood how questions should be decided when a man has been bound to two confederates.39 If, namely, both at the same time should demand his promised aid, which he cannot furnish at the same time, that is, let us suppose, the presence of the promisor, or all his forces of a definite kind, for example, all his ships, all his cavalry, &c., to which of the two should he rather furnish aid? For here the earlier alliance takes precedence, because in the later it is understood that only those actions which were free from the former obligation have been obligated. And this obtains not merely when the confederates have to do with a third person, but even when they have to deal with one another, if, indeed, by the prior treaty of alliance confederates-to-be are not expected thenceforward. But the nature of the prior treaty of alliance does not even allow one to produce that which can be furnished to both at the same time. For to do so implies that he who has stipulated for assistance from me has left me at liberty to furnish assistance likewise also to him against whom he is imploring my assistance. For in this way the effect of the aid promised to the former would amount to nothing, inasmuch as things added to one side are of no moment if the same amount be added to the other. Nevertheless, the justice of the cause of those who are waging war should here be well considered. For since no one is obligated to support the wrongs done by a second person, it is surely patent that, if the earlier ally does wrong to the later ally, I can also give help to the later against the earlier (unless it has been agreed that I am bound not to give aid against him on any score at all), since, forsooth, the assistance promised to the earlier ally presupposed the justice of his cause.
38. For the purpose of confirming obligations, and especially pacts, there are added instruments, oaths, pledges, hostages, and suretyships. As regards the first of these, it is necessary in contracting mutual obligations among men that the will be expressed by signs, since, forsooth, there can be no effect mutually among men of the acts of their will as long as these acts are not manifested in signs. Now the more imperfect signs, indeed, are gestures, which it is proper to employ in making commercial transactions between those who do not understand one another’s language; and the more perfect are words which are understood on both sides. That these words, furthermore, should express more clearly and more firmly the will, it has been instituted both that at pacts of greater moment there should be present witnesses, to whose memory and conscience an appeal may be made, if, perchance, the pact itself be denied by either party to it, or if some doubt arise about the words of the pact; but especially that the terms of the pact should be expressed in writing. For the memory of even a number of men is defective, or their good faith wavering, but things written are by no means so subject to forgetfulness or perfidy. Bare words also are frequently frustrated by the excuse that they were proposed hurriedly, or without a careful consideration of the matter; and this exception also is excluded by things written, for, assuredly, while these are being drawn up, they present the matter with the utmost clarity and not without some delay to the mind of the contracting party, so that, if, indeed, he has approved the things written, he should altogether be judged to have consented fully to the matter itself. Nor can things written be so easily distorted by cunning interpretations as can words, in which some trickily inserted particle that was not noticed in hurriedly pronouncing the words, can upset the whole matter, an inconvenience to which things written are by no means so liable.
As for the rest, although the obligation of pacts does not in itself depend upon things written or instruments of that kind, for, assuredly, an obligation can be contracted without them, and, as far as the law of nature is concerned, persist, even if, perchance, they have perished by some accident; nevertheless, in a human court of law whose finding rests only on the most manifest signs, these instruments are to the very highest degree heeded, and more confidence is felt in them than in any other kind of evidence at all. And if they cannot be produced, the plaintiff is ordinarily rejected, unless he has proved by satisfactory witnesses that he has lost those instruments by some accident. Hence also it follows, that, if the creditor has knowingly given back the instrument of the obligation, or has knowingly destroyed it with the knowledge of the debtor, he is regarded as having absolved the latter from his debt. Nevertheless, if the debtor should by any means secure possession of the agreements (suppose that he has stolen them, or extorted them in some other way) he will not at all have been released from his obligation, at least on the basis of the law of nature, although, perchance, in a human court of law an action against him might fail.
39. An oath is customarily administered for what is essentially a threefold purpose, either that we should deny that we are guilty of some crime or privy to it, or that we should confirm our intention to speak the truth about a matter known to us, or else that we should bind ourselves to furnish something. We can call the first an oath of clearance, the second an oath of testification, the third an oath of promise. An oath of clearance is customarily offered by those who have the authority to exact punishment, or who wish to accuse us when some indications, indeed, of crime point to us, but nevertheless do not constitute complete proof, and where it is impossible to get the truth in the case by other evidence or testimony. Now we cannot be compelled to take such an oath except by those to whom properly belongs the authority to inflict punishment upon us, and this principally because the one who refuses such an oath is regarded as being convicted of the crime and as having confessed it; although when others demand an oath of us we can rightly refuse it, unless, perchance, they are bringing an action against us, and then it appears more convenient to avoid in this way a trial, than to plead our case with danger, or at all events with annoyance. And yet such an oath is not customarily offered in a case where the confession of the truth is followed by capital punishment. Indeed, just as no one is commonly presumed to renounce the divine mercy in order to avoid some inconvenience which falls short of danger to his own life, so only a few have such strength of character that they prefer to meet death rather than commit perjury, especially since after perjury they are by no means interdicted from appealing once more to the divine mercy, and the hope is not precluded that it can once more be prevailed upon. Very much the same obtains in regard to the oath of testification. For this also can be forced upon me only by those who have sovereignty over me, and to the rest of men I can impute it as a free service. Also in cases involving capital punishment it is not appropriate for it to be taken by men who are united with those against whom testimony is to be given, by a certain kinship, which produces a strong effect upon the emotions, for, of a truth, they are commonly judged to put personal considerations before religious scruples.*
40. Now, in general, an oath is a religious assertion, by which we forfeit the divine mercy, or call down upon ourselves the divine punishment, if we do not speak the truth, or fulfil our promise. For that this is the meaning of oaths is readily indicated by the formulae which are customarily employed: “So help me God,” “God be witness,” and the like, which amount to much the same thing. For when a superior, having the right to inflict punishment, is called in as a witness, at the same time vengeance upon perfidy is demanded from him. And so those asseverations which cannot be reduced to this meaning do not possess the character of oaths. Here can be set forth in passing, also, what we should think about the custom of the ancients who attributed equal or almost greater force to oaths sworn by the safety, head, and life of the prince, than those sworn by God.40 For this, properly speaking, was not done because they thought there was a divine spirit in their princes, or because they were calling down upon themselves the wrath of their princes, if they broke faith; but because most of them wished it to appear that they cared more for the safety of their princes than for their own safety, and so would have greater scruples about turning the wrath of God upon the heads of these princes, than in bringing it down upon their own heads. Of course the meaning of oaths of that kind was properly this: “I so hope for the safety of the prince, as I shall do this,” that is to say, “Unless I do this, I call down the wrath of God upon the prince.” This makes it clear that in former times men who swore falsely by the head of the prince were, not without reason, punished more severely than those who swore falsely by their own heads. For in this latter fashion they were believed to be calling down the punishment for perjury merely upon their own persons, but in the former way, to be calling it down even upon the prince, with whom the safety of the state was bound up. Also from the purpose of these same oaths the meaning is gathered, and this purpose is, that men should be more firmly bound to tell the truth and to fulfil their promises, out of fear of the Divine Spirit, omnipotent and omniscient, whose wrath, if they should knowingly practise deceit with an oath, they are calling down upon themselves, where otherwise the fear of others appeared to be a less effective bond of faith, as they hoped to be able either to escape their power or else to avoid detection. For where the violator of pacts cannot either elude us or avoid our punishment, it seems superfluous to demand an oath. Now, although all non-atheists assume that God punishes the violation of pacts, even though they are not confirmed with an oath; nevertheless, it is a common and no vain persuasion, that he who has provoked the anger of God, and, as far as in him lay, voluntarily by his own perjury shut off the way of access to His mercy, will be more severely punished.
41. Now it should be well observed that the swearing of an oath does not properly produce a new obligation, but supervenes as a kind of accessory bond to the obligation which was in itself firm. For something is always presupposed, failure to furnish which calls forth divine vengeance by virtue of the oath. But this would be absurd unless it were illicit not to furnish that which is presupposed, and so we were already under obligation. The result is, that those pacts which other-wise in themselves, on the basis of the law of nature, give the second person no right, do not supply it, indeed, even when an oath is added, as happens in the case of those who through unjust fear have given cause for a sworn promise. For on such men there remains no less an obligation to restore the thing promised which was extorted by violence, even when the promise is accompanied with an oath, than when it is not; on the topic of compensation for which, as overriding the obligation of fulfilling the promise, we have spoken above. Nevertheless, in honour of the Divine Spirit, such promises ought, in our opinion, to be kept. For since, in consideration of having taken an oath, you have escaped an evil greater than the promise was, it would be particularly irreverent to have retracted, as it were, so effective an invocation of the Deity, after having escaped the peril. Nay more, we are not under obligation also concerning matters about which in themselves we could not be obligated, even if an oath were added. Such are matters which are forbidden by enacted laws, for it is absurd to invoke the divine vengeance in case you fail to do something, when, if you did it, you should be punished by the same Deity, and so be abusing the reverence for God for the sake of ignorance of him, as it were. And oaths have been introduced so as to add strength to the licit and good actions of men among one another, not so as to render assistance to crimes. Thus they also are right who say, “Vows taken upon oath, which impede another greater good, are invalid.” Such was that usage among the ancient Jews whereby they swore that they would never do any good to this man or to that; since, forsooth, we cannot at all forbid ourselves to do a benefaction which has been ordered by the Deity.41 It is clear that the same holds true of what is absolutely impossible, although it be beyond doubt that he who thus recklessly treats the religious scruples invoked by the divine name is grievously sinning. In the same way the addition of oaths does not change a conditional promise into an absolute one. For the oath no less stands and falls with the condition, because it presupposed one, than does the promise. Thus, also, if it be certain that the one who swore an oath supposed that something had been done which had in fact not been done, and if he had not believed such to be the case, he would not have sworn the oath, then the oath will not be binding. But if there be doubt whether he would not have sworn the same oath even without the supposition, he will have to stand by what was promised, because, out of reverence for God, the most simple interpretation ought to be applied in the case of oaths. Similarly, from the nature of pacts a judgement should be reached as to whether an act committed contrary to an oath be merely illicit, or rather invalid also. For, unless the promisor has under an oath yielded his right to the property and transferred it to a second person by his sworn promise, the act will not be invalid, if afterwards he bestow the same right upon a third person. Thus, for example, if one has sworn that he will bequeath a definite thing to somebody, and afterwards sells the same to a third person, the sale will not be invalid at all, although the seller has contracted the fault of perjury. Finally, an oath will have efficacy, on the basis of the law of nature or the law of the state, according to the nature of the pact or promise to which it is added. For the oath in itself does not cause the promise or the pact, otherwise valid in itself on the basis of the law of nature alone, to obtain the efficacy of a civil right, unless, perchance, the civil law regarding certain pacts has especially assigned it this force.
42. Furthermore, that formula in oaths under which God is invoked as witness or avenger, is to be adapted to the persuasion or the religion cherished by the one who takes the oath. For no one supposes that he is swearing by God under any other formula or any other name than that contained in the precepts of his own religion, that is to say, in the opinion of the oath-taker, the true religion. So he who has sworn by false Gods, whom he, nevertheless, believes to be true ones, will be obligated; and if he has committed perjury, he is guilty of perjury against the true God, because, under any conception whatsoever, he has, nevertheless, before his eyes the notion of the Deity, and if he have knowingly perpetrated deceit after calling upon Him, he has been irreverent to the divine majesty, as far as in him lay.
Now, for the rest, the words of an oath are to be taken, and are valid, in the sense in which he to whom the oath is given professes that he takes them. For the oath is taken for his sake principally, and not for the sake of the one who swears the oath. And so, although there will by no means be an obligation upon him, who, by mere recitation, has pronounced the words of some oath, as the poets tell us about Cydippe;42 yet, if a person wishes to swear either in such a way that he is not obligated, or in mental reservation takes the words in a sense different from that in which the other person, the one, namely, to whom the oath is being given, understands them, he will altogether be obligated by his oath. And this is not so much because, out of reverence for the Deity, he ought to exclude from this act all cavilling, but, more than that, because otherwise the whole transaction would come to naught. For oaths have been introduced with this purpose, namely, that, so far as possible, a person be made secure on the subject of a second person’s good faith relative to a thing promised, or his veracity in response to interrogations, and this purpose is utterly overturned, if that exception is allowed to obtain. And the necessity by which signs of that kind have been instituted among men for the sake of preserving society, altogether required that the signs should be valid in such a way that they could be discerned by the judgement of those for whose sake they are employed. But it is quite impossible for this condition to obtain, if these signs are to be valid, not according to the understanding of the one who receives the oath, but according to an interpretation on the part of the one who takes the oath, which is secret, and at the same time contrary to common usage.
43. Pledges are commonly added to pacts when either the good faith of that party, which, according to the terms of the pact, performs its obligation last, does not appear to be sufficiently certain, or else so as to enable us to be spared the trouble of extorting our right before a tribunal. And on that account a pledge is also commonly wont to equal or to surpass the worth of the thing owed, so that if we be deceived in the faith of the other party, we may have at hand a source from which we can get what is our due. Now pledges are either productive or sterile. The former, by the product which they bear in the meantime, can compensate for the loss which comes to us by a deferred payment of the debt, and accordingly it is not so necessary to have a definite time set at the expiration of which the pledge becomes the property of the holder, unless it has been redeemed in the meantime, inasmuch as delay does not cost him anything. But, because the opposite is the case in sterile pledges, men have for the most part adopted the custom of fixing a definite length of time, at the expiration of which the pledge is appropriated in cancellation of the debt. But if this fixed time has not been expressed, then the redeeming of the pledge after any lapse of time is not prevented, unless, perchance, sufficient indications appear that it has been abandoned by its owner. Now a pledge is to be restored when the debt is paid, before the pledge be lost in cancellation of the debt after the time-limit has expired. In the meantime the creditor owes the pledge no less care and attention than he gives his own property, since it was given, of course, primarily for his own advantage. And if it suffer any harm, or be utterly lost through the bad faith of the creditor, or any failure on his part to manifest at least ordinary diligence, the risk and the loss fall upon him.
44. It is customary to give hostages43 primarily for the sake of confirming public pacts, when we feel at the same time that mere good faith is not a sufficient guarantee; to wit, that a second party may be prevented by fear from violating the pact, the fear, namely, that some very severe measures will be adopted against those whom he has put under our authority; especially since it is customary not for persons of low estate to be given as hostages, but for those who are highly regarded by the rest. Now hostages are given either by one party alone, or by both parties. The latter course is taken when it equally concerns both parties to keep their agreements, or both are equally able to do harm, or, finally, in war, when it is not definitely established whether the matter is being taken up in all seriousness, or, under the pretence of a pact an opportunity is being sought for treachery. But the former is pretty apt to be taken when the party which is inferior in strength is forced to enter into a pact upon somewhat severe conditions.
Now the otherwise extremely intricate question which has to do with the obligation of hostages, and what it may be licit to do to them, if that for which they were given has not been observed, seems to admit of settlement most conveniently in the following way: If, namely, a distinction be drawn between that which they can suffer without being subjected to a wrong, and that which can properly be inflicted upon them on the basis of the law of nature. For, since hostages are added for the purpose of strengthening pacts, on the violation of which a war arises, it is clear enough that, on the rupture of the pacts, the hostages also, just as the whole state to which they belong, pass over into the category of enemies, against whom one may lawfully do whatever one will, at least as far as concerns the absence of any law preventing it which exists in the enemy himself. For by that very pact, when they become enemies, they retain no right which prevents them from suffering every extremity at the hands of him whom they have injured, as we shall set forth at greater length below. There is added the further circumstance, namely, that those who gave them over appear to have granted that same legal right. For the giving over of hostages amounts to this, namely, that one has no objection to make against the foe treating them in any way that he sees fit, in case it so happens that good faith is not maintained. Nor does this legal right remain within the limits of keeping custody merely over hostages. For they undergo this custody in either a stricter or a laxer form, to the degree that it appears necessary, as long as they remain hostages, even when the pact is observed. And so, when pacts are violated, it is well understood that it is possible to go farther, that is to say, to torture and to death, which are next in order after custody. Thus, even when hostages have been given on both sides, if one of the contracting parties has without any just cause maltreated or killed its hostages, the other will be doing no wrong if it treat in the same way the hostages which it has, and this from the bare right of war, and not from some right of talion, although it very commonly happens that this latter is alleged in deeds of that kind: in order to avoid the reputation of cruelty among men. Since, forsooth, by the usage of nations it is regarded as talion, not only when there is visited upon the person who has done wrong, the very evil which he himself did, but even when the same evil is visited upon others in the same moral body, particularly those who are of the same condition. For no one regards an enemy as having been harshly treated when his own practices are visited upon him. But, in truth, since the law of nature bids us to temper those evils which are inflicted upon an enemy, according to the mode of punishment otherwise customarily employed among peaceable men, as far as military considerations and the necessity of defending ourselves and attaining to our right admit, it is readily apparent, that, upon the violation of a pact, innocent hostages cannot rightly be killed or otherwise cruelly handled, unless, perchance, they have done something worthy of death, or have consented to the violation of the pact, and have ordered the violation as at their own peril. For in this case it is beyond doubt that they can be punished even with loss of life.
45. Now here arises a no less thorny question, whether, namely, they who have given a hostage be doing a wrong to him whom they expose in this fashion to the wrath of the enemy. That question we wish to be understood of those who have supreme sovereignty over the hostages whom they give. For if a man, in behalf of persons other than those who have supreme sovereignty over him, has offered himself as a hostage, there is no doubt that he is entering upon a pact with them that they are not to make his condition harder for him by their perfidy, and so the violators of the pact are altogether doing a wrong to the hostage. This question depends on the one, whether he who enjoys the supreme sovereignty has authority to expose, for the public welfare, the life of a subject of his to the immediate or probable peril of death, and whether there devolves upon the subject the obligation of undergoing peril of that kind, if he be ordered to do so. It seems to us that the answer must be, Yes, although there are those who deny this, for the reason that God alone has reserved to himself dominion over life, and man does not have over his own life that right which he has over other things which come under proprietorship, and so this right could not come to the state by the express or tacit consent of individuals. Certainly the common saying, that a man does not have dominion over his own life to destroy it, allows of this limitation, namely, unless it is to be spent for the safety of a number. For the social nature of man seems not merely to permit, but frequently even to persuade, a few to purchase by their own death the safety of very many. And so, since frequently, especially in war, occasions arise in which a multitude cannot be saved unless a few perish for them, we see in all states those in whose hands is the supreme sovereignty, exercising this authority, that, namely, when the safety of all, or of a large number demands it, some few be sent to the immediate peril of their lives, with the effect, that, if they do not obey, or are too slow in submitting themselves to the peril, they are visited with the punishment of death. And it is not probable that they would win praise with such common consent for putting into execution their orders with vigour and meeting death with intrepidity, if in so doing they were sinning against the law of nature. From this it follows, that, just as in war a state can oppose a certain few, at the probable risk of death, to the onslaught of the enemy; so, if a second party, trusting to the hostages which he has, should decide to vex with new wrongs those who gave the hostages, and do so in such a way that it would be more expedient for the state to lose its hostages than to allow such wrongs, it appears that the state may altogether rightly abandon its hostages at the probable risk of death or serious misfortunes, so as to ward off those wrongs from itself. And a wrong is no more done the hostages because they in particular are exposed to peril in behalf of others, than a wrong is done those, who, at the express bidding of the sovereign, are sent to face the enemy where the most violent assault is making headway. Nevertheless, in our judgement, the same assertion cannot be made, if he to whom hostages have been given, has suffered wrong in the following manner; suppose, that is, that after leaving hostages with him, those who gave the hostages should break the pact in which otherwise there was no inherent defect on the basis of the law of nature. For it is not to be believed that a moral body can enjoin upon a member, because he has been united to it by the bond of supreme sovereignty, the necessity of suffering some misfortune visited upon his own person, yet not as by way of punishment, and this for the sake of giving that moral body the opportunity to do the other party a wrong.
46. The remaining moot points about hostages can be easily explained. The question, namely, “Should hostages still be retained after the death of the king with whom the treaty was made?” is to be decided on the basis of what we said a little above about real treaties and personal treaties. For if by the treaty the obligation passes directly over to the successor, the hostage will still be altogether bound; if otherwise, he will be free. But if some hostage be given merely to redeem a second person who is a prisoner, upon the death of that second person the hostage is not immediately set free, if, of course, he has been given because a certain sum of money had been promised the captor. For since in this way the captor has acquired a ground for action against the goods of the captive, the hostage will be held until what is owed the captor has been paid out of the property of the captive. Otherwise, if the captor regarded nothing but the person of the captive, the hostage will certainly be set free on the latter’s death. But if a man has allowed himself to be given as a hostage so that another hostage may be set free, at the latter’s death he will be free, if the second person wished to acquire security primarily in the person of the first hostage; but not if it is a matter of indifference to the second person as to just what individuals should be given as hostages, provided only a definite number of hostages of a definite social station be main-tained. But if it should happen, as we read that it took place more than once among the ancients, that a hostage be the heir and successor of the one who gave him, we are of the opinion that, after this latter has met his fate, the hostage is no longer bound, even if the treaty has not expired at the other’s death. For it is understood that this eventuality is tacitly excepted, namely, that he be no longer a hostage if he has changed to the person of the principal debtor; in such wise, however, that he ought to substitute another in his place, if that be demanded.
Now it is not permissible for a hostage to flee as long as the state desires to perform that for which he was given. But when the state has now broken its pact, the hostage becomes a prisoner, who has the right to flee, unless, in order to secure greater freedom of action, he has pledged his good faith not to flee. Thus we are of the opinion that those hostages also who were called to succeed someone upon the throne were justified in fleeing, and this because of the very natural fear that they would be forced to accept unfair terms, if they had openly demanded their dismissal.
Finally, since the obligation of hostages is an odious one, and so demands a strict interpretation, those who have been given for one reason cannot be retained for another, if, of course, something else has been promised without the additional provision for hostages. But if in another case good faith has been violated, or a debt contracted, the hostage may not be retained as such, but on the ground that all citizens are bound by the deed and debt of the state; unless, perchance, the agreement has been expressly reached that hostages be restored altogether, if that for which they had been given has been performed, even if afterwards some controversy arises between the contracting parties on another score.
47. It is a case of suretyship when we show by signs that we are willing to take upon ourselves the obligation of a second person, so that if, indeed, he does not perform his obligation, we ourselves will satisfy it. Now suretyships can be interposed in any pacts dealing with things and actions which can be redeemed for a price, with this effect, namely, that, if he who bound himself in the first instance should not produce what he owes, the giver of the surety is bound to pay it, in such wise, however, that he has recourse and action against the one for whom the surety was given, in order to recover the loss suffered on his account. Nor is it merely in private contracts, but also in public pacts between such as do not recognize a common judge among men, that givers of surety are introduced, and those primarily by whose interposition the pact was entered into. Their obligation is of the kind that, if one man breaks the pact, the others are bound to give aid whereby he may be forced to furnish once more what he owes. Furthermore, since suretyship is an accession to the principal obliga-tion, it is readily apparent that the giver of surety cannot owe more than he for whom the obligation is assumed. Although, according to the Roman laws, the condition of the giver of surety was in a certain way worse than that of the original debtor, because it was allowed the latter to clear himself of the whole debt by yielding up his property, even though the debt was greater than his property, a favour which was not granted to givers of surety, since, forsooth, givers of surety were provided with the purpose, that, if the debtor should be deprived of his property, the creditor should altogether get his due through the givers of surety. But, of a truth, the law of nature, which knows nothing of that favour of the yielding up of one’s property, puts them on an equality as far as the degree of obligation is concerned. And yet, it can very well be that the giver of surety owes less, supposing, for example, if he obligated himself to furnish merely a part of what was owed; if, instead of making an out-and-out promise, he took the precaution of adding a condition (now that, instead of a conditional promise, he should make a pure caveat, to wit, that he does not add and presuppose the condition which the original debtor presupposes, is repugnant to the nature of suretyship); if he undertook to make payment himself only after some interval of time; and if there are other means whereby the obligation becomes less binding.
48. Now in a case where a crime has been committed, suretyships can be brought in only to the degree that either the giver of the surety may promise the magistrate to whom belongs the prosecution of the wrong, that he will himself make good the loss incurred by the wrong, or else he will guarantee that the accused will appear in court. This interposition commonly takes place either in order to free the accused, who has been arrested already, from the distress of imprisonment, or else to keep some action from being taken against a man who is absent and undefended, as though he were convicted. For, otherwise, the man who gives security cannot at all obligate himself to undergo punishment, properly so called, instead of the accused. For punishment among men is properly some disagreeable evil which is inflicted in consideration of the wickedness of the man who has done evil, and is so inflicted with the purpose of reforming either the wrongdoer himself, or else others.44 And yet the giver of surety has neither done wrong himself, nor by the act of giving surety has he brought upon himself the guilt of wrongdoing. For there is no crime in the desire to have the accused plead his case on a fairer basis, or be under better conditions, until sentence be passed upon him, especially when the magistracy consent thereto; or to promise that he will pay the fine assessed upon the accused, as also the sum at which the magistrate estimates the possible loss of the opportunity to punish the accused because of his taking flight. Nor can the purpose of punishment be attained in the case of such a giver of bail, and, when that purpose is lacking, punishment cannot be rightly exacted from a man. Also that magistrate has not properly understood the nature of punishment and the obligation of his duty in the matter of exacting it, who has, perchance, sometime inflicted punishment upon a giver of surety; except where it appears that the latter has acted in bad faith, so as to frustrate by this means the force of public authority. But if, now, one suffer any loss of property because of having given surety, that is not properly a punishment, nor does the obligation arise directly from the wrongdoing (although this should give occasion for the obligation), but from one’s own consent. From all of which it is apparent, that, since the effect of giving surety properly reaches its end in the goods of the giver of bail, the obligation passes over also to his heir. Although, when, perchance, the sum for which he from whom the inheritance descended was obligated, is greater than the inheritance itself, the heir is not bound for a larger sum than he received from the inheritance, and so he is not bound to supply out of his own property what is lacking to the full sum; unless, perhaps, he has obligated himself anew for the whole sum.
49. Non-perpetual obligations are removed in the most natural fashion by the fulfilment of that which is due, for if this be done, the obligation has fully and directly arrived at its effect. Now in those things which can properly be carried on through the agency of another, it makes no difference to the person whom the obligation concerns, whether the man who owes the debt pays it himself, or some one else does it acting for him. Where a giver of surety has been interposed, if, indeed, the original debtor has paid, the latter as well as the former is freed; but if the giver of surety has paid, the original debtor, to be sure, is freed by the creditor, but on the other hand he begins to be under debt to the giver of surety. An obligation is removed also by making a present of the debt, when he to whom something is owed himself frees us from the burden of furnishing it. For that right which had been transferred to him on the basis of the obligation, is understood to return to us from the second person by his making a present of the debt, just as also from the outset an obligation is not contracted, if the second person, to whom something is offered, has refused to accept the offer. A variety of this was, in the Roman laws, acceptilation,45 or the formal discharging of a debt, when either there is a fictitious payment, or a receipt is turned over which has been made out just as though the debt had been paid in fact; and this was done so that a man could more easily prove that he owed nothing further, in case, perchance, doubt should arise on that score. It belongs under this head also, if a man to whose interest it is that something be furnished, should himself interfere with the act of furnishing it. For he, likewise, is regarded as having made a present of the debt, and so it is looked upon as having been paid. I am also freed from an obligation, if a third person, with the consent of him to whom I owe it, has taken it upon himself as his own. An obligation expires also when a person has changed that status upon which alone the obligation was based; and this holds quite as much of the person in whom the obligation inheres, as of the one in whom the obligation ends. Thus a magistrate who promises to defend his subjects is no longer bound if he give up his office. And thus he who has promised obedience to a magistrate is no longer bound, when he himself has ceased to be a subject, or the latter to be a magistrate. But, in truth, a change of that kind in the subject, which, it may be, perchance, would have interfered with the obligation had it existed at the time when the obligation was being contracted, and at the present moment is out of accord with the subject, and yet for all that does not render the subject utterly unfit to fulfil the obligation, does not have the force of removing an obligation. For my right which has been legitimately acquired over another person, although it may appear to him at a later time to be less advantageous, can by no means perish, unless this contingency had been from the very first expressly inserted in the pact as a condition. Thus, a people subjecting itself absolutely to a king is by no means freed from its obligation towards the king, even if afterwards it has changed its frame of mind, and finds that some other form of government is going to be more advantageous for it. Contrariwise also, by the consent of the contracting parties, mutual obligations can be dissolved, particularly if the situation is still what it was at the beginning, that is, if nothing has been furnished on either side by the force of the agreement. So, if there exist two different pacts with the same person in regard to the same matter, the first pact will be invalid; because it is well enough established from the second pact that the contracting parties have changed their former intention; just as also in positive laws a later law contradictory to an earlier law invalidates the latter. An obligation is lifted also by compensation, when the creditor owes the debtor something on another account, that is, if, for example, he has in his possession some property of mine without any right to it, or if he is owing me either on a contract or on some other promise, or if he has inflicted some loss upon me. For then, on a comparison of the two debts, only that amount by which one exceeds the other will have to be paid. Now it is unsuitable to have obligations removed by the mere passage of time, except in so far as indications of making a present of the debt can be inferred therefrom. So it is that an obligation of the following kind amounts to nothing: “I will owe you 100 pieces of gold for three years, on the terms, however, that neither in the meantime, nor at the expiration of that period, will you be able to demand them of me.” For an obligation which does not acquire some effect before it expires is futile. Yet the case is different, if I frame the obligation in this wise: “Unless you demand it within three years, I will no longer owe anything.” For that promise which expires on the failure of the condition to appear is truly conditional.
50. Here also should be settled the question, whether a victorious enemy can destroy the rights of the vanquished in such a way that he can remit to a second person the obligation by which the latter was bound to the vanquished. This controversy was at one time carried on with great violence, when the Thebans, after their city had later been re-established, demanded of the Thessalians a debt which Alexander had remitted them when Thebes was destroyed.46 Those who take the negative use the following arguments: (1) That which has been taken away by force can be demanded back. (2) The right of war is of no avail in the case of those things which are brought before a court; what has been taken away by arms can be retained only by arms. And so where arms prevail there is no judge; where there is a judge, arms do not prevail. (3) Things acquired by war can be held and retained only by war. (4) The victor cannot bestow rights because that only is the victor’s which he actually holds and for as long as he holds it. But the right was in tablets, and that right is a thing incorporeal, nor can hands be laid upon it. The condition of the heir is one thing, that of the victor another. To the former passes a right, to the latter pass merely things and persons. (5) The right of a public loan cannot pass to the victor, because what the people has lent is owed to all the citizens, and as long as some one of the citizens survives, he is, and is regarded as, the creditor for the whole sum. Now not all the Thebans were under the power of the victor, Alexander. (6) If the tablets were given over, it does not appear that for this reason what was contained on the tablets was forthwith given over. For a right does not dwell in the tablets, but from the tablets there is sought the proof of the existence of the right. But, in truth, these arguments are by no means strong enough to establish beyond doubt what they purpose. For, (1) that which has been taken away by a proper use of force, that is, that which being previously owed upon any perfect obligation whatsoever, has been extorted by force from a debtor who refused to pay it, can by no means be demanded back. And, by the usage of nations, force exercised in any regular war whatsoever is regarded as just, so that there remains to the former owner no claim to those things, after peace has been made. (2) The right of war does have some strength in the case of those matters which are brought before a court. For assuredly, after a war is ended, if a controversy be started against me regarding a possession which I acquired in war, it is enough for me merely to declare the title of acquisition through warfare, unless, per-chance, a special agreement was entered into in making the peace, to the effect that this property was to be restored, or the injustice of the war has been clearly demonstrated. (3) Things acquired in a just war are most decidedly, even in time of peace, held with justice, especially after peace has been established on both sides; for here those things about whose restitution no agreement has been entered into, are understood to remain with the possessor. (4) As regards the acquisition in warfare of things incorporeal, it is to be noted that certain rights so adhere to things, that they immediately pass over to any and every possessor who is legitimate, at least according to the usage of nations. Thus, for example, he who has seized in war a strait, a river, or some road, where, before that time, those who passed were in the habit of paying a tax, has without any doubt acquired at the same time the right to collect that tax, as long as he is in possession of those highways. But, on the other hand, when in war I bring some person into my power [potestatem], I do by no means acquire the rights of that person which are properly and directly based upon his very person. For example, by capturing a king I do not immediately acquire the right to rule over his subjects; by capturing a father or a master I do not immediately acquire a right over his children and his slaves. The reason why I do not is because rights of that kind have been acquired by the one captured through the consent of a second person, and that consent had been based upon the person of the one captured, and no other. And so, since that second person is not in the power [potestate] of the victor (as I am supposing the case), it depends upon the free choice of the former, whether he wish to give by his own consent such a right to a person other than the one captured; and this in addition to the fact that most of these rights already have those to whom they pass over, if he who formerly held them has ceased to exist, either in nature or in his civil status. But, indeed, along with the capture of a man’s person I am able to acquire also those rights which properly and ultimately are based upon his property, in such wise, however, that the man captured transfers them to me by his own consent, and I have the faculty of eliciting that consent by the threat of a more severe evil. Thus, just as I can give a second person the right to demand what is owed me by my debtor, with the effect that my debtor is quite as much bound to pay it to him as he was previously bound to pay it to me; so, if the captured has with his consent transferred to me the right to what is owed him, the debtor assuredly begins to owe me what he had owed the captor. And in this fashion Alexander was able personally to acquire that debt, if, indeed, he had left Thebes as a state after compelling the Thebans to transfer their right to him; and in very truth it is understood that he had acquired that right after he had become, without any question, the master of Thebes. On this score he had the right to demand that debt from the Thessalians, or to make a present of it. Nay, he might also have compelled the Thebans to remit that debt directly to the Thessalians, just as I can compel any one in war to renounce some pretension of his. Hence Alexander, in turning over to the Thessalians the tablets recording the debt, was not so much denying that the Theban state which he himself destroyed, could sometime exact the debt, as he was showing that he himself would demand nothing from the Thessalians on that score. (5) Now this proposition is false, namely, that as long as one of the citizens survives, he is, and is regarded as being, the creditor for the whole sum, and so has the same right which the state had to exact the debt. For those individuals who survive from some state’s body after its dissipation and utter dissolution cannot at all claim for themselves the right of the state, since they in their persons do by no means any longer constitute the state. Now it is well established that Alexander utterly destroyed the Theban state, to such a degree that those who survived the disaster could by no means be regarded as a people. And those who later established the city of Thebes were an absolutely new people, and, if the old Thebans had had any special rights, these later Thebans could by no means claim them for themselves, on the basis merely of their location, unless they had acquired them anew.
51. After having considered in general the nature of obligations, the next step is to add something on the character of pacts. Now pacts can be divided into public and private.47 Public pacts48 are those which are ratified by states and their heads and have to do with affairs which regard the condition of the state. They serve either to confirm peace, or to end, or suspend, or otherwise modify, war. The former are properly called treaties, which in virtue of the object about which an agreement was entered into thereby, are either treaties of friendship, by which in general mutual goodwill, or, more than that, the common duties of humanity are promised. They come into existence principally between those who have never known one another before, either in kindness or in injury; although such are not quite properly listed under the head of treaties, as the law of nature long since obligated all to perform such offices. Or else they are treaties of mutual assistance, and this only when either party is attacked in war by a third, or even when either party attacks another in war, the former being called ἐπιμαχίαι [defensive alliances], the latter συμμαχίαι [offensive and defensive alliances]. Treaties are also entered into for other matters, as, for example, that one party shall not erect forts on the confines of the other, that it shall not harbour the other’s fugitive subjects, shall not let an enemy march through, and the like.
There is also another classification of treaties, by which they are divided into those of equality and of inequality. They are the former, when, on the strength of the treaty, the contracting parties remain equal on the score of dignity and supreme sovereignty, in such wise that one is not made subordinate to the other as to a superior. But they are the latter, not when parties which are unequal in power make an agreement with one another, but when, on the strength of the pact, a certain superiority is conferred on one party, in such a way that one side is bound to maintain in a courteous way the majesty of the other, and is bound to show it a certain non-reciprocal respect. Some of these treaties compromise the force of supreme sovereignty, as e.g., if one may not make war on a third party without the consent of the other; some do not, although they weigh down one state more heavily with burdens than they do the other.
52. There is also another species of public pacts, which they call properly a guarantee [sponsio]. It differs from a treaty in that the treaty is struck by the highest authority or by its order, but it is a guarantee when those who do not have a mandate for that affair from the highest authority, promise something which touches it specifically. When there is added to those guarantees the condition that they be valid as soon as they are approved by the supreme authority, there is no difficulty about them. Thus, even when some one promises that something will be done by a third person, in such a way that he either be promising merely his own efforts to persuade the third person, or even be promising to take upon himself the obligation, unless he succeed in persuading him, it is perfectly clear to what the guarantor as well as the third person is bound. But, if the guarantees be absolute, the extremely thorny question is commonly raised, whether, namely, these guarantees obligate also the king or the people? Although in thesis, and without special circumstances, this question should be denied, still, in hypothesis, and, indeed, especially in regard to the guarantees at Caudium and at Numantia, which are the examples illustrative of this topic that are everywhere discussed, knotty points of such a kind arise that they make the whole matter extremely dubious.49
At the outset it seems that we should clearly determine how far these guarantors were able to make a valid pact on the strength of their command [imperium]. It is, accordingly, well established that the consuls in question had been sent out with such authority to wage war that they could of their own free choice move upon the enemy, come to conflict with him, and exercise all the acts which appeared to them to contribute at all towards conducting the war in question according to the usage of nations, without waiting for mandates from Rome upon that matter. By the force of this command they had authority to make a truce, at least for no very long time, or certainly for no longer than they were going to be in command and with the army; they had the authority, likewise, to lead the army out of the enemy’s confines, and to restore positions already occupied, if, indeed, the safety of the army should so demand. If the consuls had guaranteed nothing more than that, assuredly the Roman people could not with any colour of right have made the pact invalid. But certainly they had no direct authority to act upon the whole case, as it were, of the Romans against that people, that is to say, ratify a full peace with them, and a treaty besides. Yet, in truth, because the consuls had not unreasonably presumed the consent of the people, since so many thousand citizens could be saved in no other way, and because the enemy believed that the consuls had legal authority to make a pact, and on their side had done something for which it seemed that the promises made by the Roman consuls were not unfairly purchased, and because this which they had done redounded to the advantage of the Roman people, assuredly it would have been most fair for the Roman people not to break that pact, especially since the enemy had stipulated for nothing else in their own interest but the end of an unjust war (such at least had been that against Numantia, by the very admission of the Romans themselves), and that they were not to be compelled to be slaves to the Romans. And so, if we wish to make an honest confession, the sole and true reason why the Romans were unwilling to stand by that guarantee, was their unendurable ambition, feeling it to be unworthy for themselves to experience what they had most unjustly inflicted upon others, that is to say, to be forced to what they regarded a disgraceful peace. There was, therefore, nothing but a colour of right and vain insolence in their denying that they were bound by the pact which had been made without their knowledge, and in believing that they had been freed from obligation by surrendering the generals. For, if they were altogether unwilling to keep that pact, they were bound to restore matters to that status in which they had been before the guarantees, that is to say, surrender the whole army. But, as it was, by surrendering their generals only, and keeping their army, they cannot boast that they acted any more justly than did the Lacedemonians in punishing Phoebidas for having seized the Cadmea, while they still, despite that fact, kept possession of it.50 Therefore the Samnites and Numantians altogether had the right, not merely to avenge the violation of a pact upon the generals themselves and the army, but also upon the whole Roman people. And yet, since, I know not for what reason, the majority of learned men admire the Romans as models of justice, the poor Samnites and Numantians, whom fortune also had ere that deserted, lose their case before judges prejudiced by their emotions.
53. Pacts which are customary in war either end a state of war, or else leave the same. Since pacts of the former kind commonly have no special designation, they are wont to be listed under the name of peace or pacification. In this sometimes consent is founded upon some event, as, for example, when victory, whose effects have been already determined, is assigned the one whom either fortune has favoured, or on whose side the fortunes of battle between two or more persons, or between whole armies, has stood, or the one in whose behalf chosen arbitrators have pronounced.
The pacts which leave a state of war are truces, whereby warlike and hostile acts are suspended for a definite time. Here belong pacts about giving free transit to definite persons, about ransoming prisoners, and whatever others there are. What law of nature there is in regard to them, is readily gathered from what we have to say elsewhere; let the other points about them be sought from those who in their writings have thrown light upon the manners and customs of nations.
54.Private pacts are those which are entered into by private persons as such, or have to do with private affairs, and they are commonly listed under the designation of contracts.51 These can be divided into beneficial and burdensome.52 Beneficial contracts are so called because he who furnishes something to a second person on the basis of these, does not stipulate for an equivalent value for himself, and so they are burdensome upon one side only, although the other side is not altogether free from obligation. The principal contracts of this sort are commodate, mutuum, mandate, and deposit. It is a commodate when a thing of ours is gratuitously granted to be used for a definite length of time without any transfer of ownership, so that the same thing and not another thing of the same kind is to be returned. Here natural equity demands that the most painstaking diligence be employed to guard the thing lent, so that another’s kindness may not be a loss to him. And so, if it suffers some damage in excess of that which necessarily followed from the use conceded by its owner, the person accommodated is bound to pay for it, or to return the thing in like kind or else in value, if it has been utterly lost or rendered useless, unless it would have altogether perished even in the possession of its owner. For the commodator is understood to be stipulating this much at least, namely, that he be not deprived of his property through his doing a service.
But it is called a mutuum when a thing consisting of a definite number, weight, and measure is given to a second person, with the understanding that, after a time has elapsed, the same amount and the same kind is to be received, of the same quality and excellence. But if, now, the lender, or the one who gives on loan, should stipulate for himself a definite reward for the use of the thing, the granting of an accommodation or a loan of that kind changes into burdensome contracts.
It is called a mandate when one entrusts to a second person, with the latter’s consent, the conduct or the performance of some licit business, but the other undertakes it gratis. Among the Romans there were great scruples about observing this kind of contract, because they considered that in its sacred observance there rested a strong support of civil life.53 Now it is to be noted here, that sometimes the conduct of a business is entrusted to one with precisely circumscribed limits of action; sometimes the matter is left to the fidelity and prudence of the one who accepts the mandate. If, in a mandate given in the former fashion, one had exceeded the limits of the mandate, the Roman laws did not grant action on the mandate against the giver. And yet, in general, it is fair, not merely to make it good, if anything has been spent to the order of the mandate (for the receiver of the mandate promised merely his efforts, not expenses); but even if, perchance, something has been done beyond the terms of the mandate, which accrues to the advantage of the giver of the same, so that the former’s zeal in our behalf may not be his own undoing. And so he who had conducted the affairs of another in his absence without an express agreement, had, according to the Roman laws, action to recover the amount expended.
Guardianships have a resemblance to a mandate. In them, as a ward can demand of his guardian an account of his stewardship, so, on the other hand, a guardian can demand the repayment of that which he spends upon the property of his ward, and deliverance from the obligations contracted for the ward’s sake. The following also is readily apparent, namely, that the mandate expires at the death of its recipient, and the obligation to complete it does not pass over to the heir. Because, since it was gratuitous, and so there was nothing added thereby to the goods of the recipient from the other, assuredly there adheres therefrom to the goods no obligation which is passed on to another possessor also.
A species of mandate is the deposit. This is when a mobile piece of property over which ownership is retained is given to some one gratis, to be guarded, on the understanding that it is to be restored to the depositor whenever it so please him. Here, although the Roman laws bid that the recipient make good only dishonesty, but not also fault and neglect, and this because he who has entrusted his property to a negligent man ought to impute the loss to himself;54 nevertheless, since the depositor is understood from the very nature of the transaction to have stipulated from the recipient at least an ordinary degree of diligence, it is fair that the recipient also make good a fault which he has committed, and that at least a general and slight one, if not the very slightest.
Trusts [fideicommissa]55 have some relationship to a deposit, when a man so makes some one an heir to his goods that he is to restore them, or a part of them, to yet another person. Since certain positive laws of the Romans caused these bequests to be devised, their nature is to be learned from those who treat of that law.
55.Burdensome contracts are those in which that which is furnished by one party must be offset by the other with some equivalent. These are conveniently reduced to the three following classes: “I give, so that you will give”; “I do, so that you will do”; “I give, so that you will do,” or, what amounts to the same thing, “I do, so that you will give”; for the law of nature knows nothing of a distinction between contracts which bear names and contracts which do not. From the nature and purpose of these contracts it is readily understood that in them a simple equality is sought, by way of price, between the things which are mutually exchanged, or are the subject of contract. For the contracts are entered into with the purpose of my receiving for my own article another equivalent article, which, for definite reasons, I prefer to have rather than the other. And so, no one ought to exact more for his property or for his service than it is worth. Nor does the nature of a contract allow, that, what a second person gives beyond a fair equivalent (supposing this to be due to the guile of the one who sets the price) ought to be reckoned as a gift; and so the man who defrauds a second person in a contract, cannot legitimize, as it were, his unjust gain by calling it a presumed donation, but, on the basis of the law of nature, is altogether bound to make good the loss which the other suffers thereby, unless it be well established that the other knew the thing had a less value, and of his own accord gave more for definite reasons, let us suppose, that is, for the sake of magnificence. This is not unusual among magnates, who frequently regard it as due their dignity to pay more for some one’s service than in fact it is otherwise worth, tempering a contract with liberality. Just as, on the contrary, a man may, if it so please him, set a low valuation upon a service which was, perchance, worth much, and do it in such a way that the man who hires his service is not bound to make up the difference. Nay more, even if, without the fault of the parties to the contract, an inequality be discovered, suppose, for example, that some defect was not noticed, or an error made in the price, this also should be made good, and the amount should be taken from the one who has more and given to the one who has less; because the contract was undertaken with the purpose that each should have the same amount. Although, in order to avoid multitudes of suits and uncertain prices for things, especially among those who have no common judge, it has been recognized by the customary usage of nations that inequality of things to which an agreement was made, is regarded as equality, where neither falsehood was in evidence, nor reticence regarding what should have been said about the substance or the qualities of the thing in exterior actions. But the Roman laws do not grant an action for these reasons, unless one has been injured to an amount greater than one-half of the right price.
Now it is by no means simply to be admitted, what some take for granted as indubitable (to show that simple equality in the justice of exchange which governs these contracts is not necessary), namely, the position that the purchaser, who wanted and asked for the sale, is done no wrong, if we sell him our property for as much as we can. For this is true only in so far as the purchaser was aware, not only of the qualities of the thing, but also of its common price, in which, if it should allow some latitude of variation, there can be no doubt but the vendor may strive to secure the highest price in that class. But that to a purchaser ignorant of the common price a thing can rightly be offered at a rate far above that same price about which he is understood to be making inquiries, or, that the purchaser can otherwise be impelled to pay any price whatsoever by cunningly taking away the other’s chance to buy, or by abusing some present necessity which he is under, no one will approve, except one who regards everything as of less account than gain. But if, now, the contracting parties agree upon the price of some thing, the quantity of which, not being well known to the contracting parties, depends upon chance or natural causes, supposing, for example, that one should purchase for a large price the right to fish in some great river, or the expected crop from gardens, a vineyard, &c., the sum upon which they agreed will be held as a fair one, although the catch or crop afterwards be greater or less than that price. Because, since those things have about them a notable latitude of variation, men generally consider in their case what is ordinarily wont to obtain; surplus and deficiency are ascribed to chance, and a contract does not lose any of its force therefrom.
Furthermore, that this equality be rightly recognized and determined, the contracting parties ought to indicate to one another, not merely the valuable qualities of the thing about which they are treating, but also its lack of the same, or, in other words, its faults. For these are of the utmost effect in either increasing or diminishing the prices of things. And yet this must be understood of the characteristics which properly affect the thing which is entering into the contract. For certain other extrinsic characteristics may attend the thing and contribute to its value, and yet the nature of the transaction does not require that they be pointed out, although, perchance, on some other score, as, for example, the law of beneficence or humanity, they were to be pointed out. From all this it is understood what judgement should be passed in that case upon the Rhodian merchant, who, at a time when food was scarce, brought a quantity of grain to Rhodes and sold it at a high price, at the same time concealing the fact that a number of ships would soon arrive.56 For that act of dissimulation, of course, does not make the contract become invalid even on the basis of the law of nature, because, as a matter of fact, at that particular moment at which the grain was sold, it was worth that amount. But that the price would soon fall, he was, perchance, bound by the law of beneficence to say; nevertheless, that has nothing to do with the validity of the contract. The same judgement must be passed regarding the merchant who sells a bit of merchandise whose use he knows will soon be forbidden, or who pays some one coin whose value will soon after diminish. But, in truth, he who knew the faults of a thing before the contract, and nevertheless made an agreement for it, cannot at all rescind the contract afterwards for such reasons, or complain that wrong has been done him.
56. The more common species of contracts of that kind are exchange in kind, by which almost alone in ancient times, and where there was no use of money as yet, business transactions were carried on; agio (collybus) or money-changing (cambium), by means of which moneys are most conveniently transported from one locality to another; purchase and sale, whereby a thing is acquired by, or exchanged for, money of an equal value. In regard to this last, it is to be noted that full right to the thing passes over to the purchaser, and the obligation in the vendor to turn over the same thing begins just as soon as an agreement has been reached about the price and the method of paying it, and so the contract is fully concluded, whether earnest-money has been given or not; although the custom of the state, or the free choice of the contracting parties, is in the habit of defining in different ways the existence of a perfect contract. Where a contract is made with Greek faith, the contract becomes valid with the payment of the money; when the parties are pleased to have consent expressed in writing, after the completion and approval of the written document. Yet if the force of the contract be not expressly dependent on handing over the thing, but the contract was simple, and right to the thing has been given to the purchaser, as soon as an agreement has been reached about the price and the method of payment, the risk which the thing runs falls upon the purchaser, unless there has been dishonesty on the part of the vendor. For, since the vendor in this case ought to have brought about immediately the transfer of the thing to the purchaser, let the purchaser charge it against himself, if, while he interposes some delay, what is now his own property has suffered any damage. And it makes no difference that otherwise the thing is said to be lost to its proper owner; but that here the ownership does not yet appear to have passed to the purchaser from the vendor of the thing sold, since the thing itself has not been handed over. For he, within the confines of whose property a thing still stays, not by some right, but merely at the free choice of the purchaser, and who is bound to give it up as soon as the purchaser has called for it, and who has in the meantime been left no faculty to dispose of it, can no longer be regarded as its owner; unless, perchance, when the contract was entered into, a definite time-limit had been set for paying the price and for accepting the thing, and before that time it was not to be handed over. For, within that time-limit, the risk which the thing runs falls upon the vendor, and after the time-limit has elapsed it falls upon the purchaser, if, indeed, it has been agreed that the contract does not become void because of such delays.
In leasing and renting, whereby the use of some piece of property is granted for a definite fee, accidents which interfere with the use of the property involve a loss to the renter, unless it has been otherwise provided for by laws or by an agreement. But if, however, the lessor, when the first renter was prevented from using the property, has let it out to another before the expiration of the lease, whatever he shall have gained thereby he shall repay to the first renter, or else shall sign a receipt for the rental, so as not to make profit out of the second person’s loss. But if, however, the property is lost through no fault of the renter, the loss falls upon the lessor, unless the renter has specially obligated himself to make good the property.
Now since one and the same service may be useful to a number at the same time, although it is not repugnant to the nature of a contract to let out to each individual that service at its true value, and so to bargain with each individual for the fee which one would exact from a single person, because the service rendered each individual amounts to as much as the fee does, and is worth no less to each one, because it is doing some good to a number at the same time, and so the circumstance that this service may be useful to a number also is extrinsic to the contract which was agreed to with the first party; nevertheless, a contract of this kind may scarcely be consistent with the law of humanity. Because, when one person pays me just as much as my service is worth in itself, and in respect of others, to whom the same service is also doing some good, it is no more toilsome than if it were being performed for one person alone, my service is valued as a thing of innocent utility, which neither bothers me nor requires any more labour on my part, but does serve a second person; unless, perchance, the art in question be of such a character, that, when it has been communicated to a number, it loses its value to a certain extent in me. For then I can charge against others only that amount which my skill has lost in value, because they also know it. Because, further-more, this also appears hard, namely, that one person pay the full price, while others who enjoy the same advantage therefrom go scot-free, it is fairest to have the payment of the fee divided among those to whom the service is rendered.
57. Most frequent also is that contract, whereby for a loan a fee is given which men are afraid to call usury, because, by the divine law, profit seeking under that designation is forbidden.57 And so they58 would rather make this contract to be different from usury, for example, a contract to make amends for the loss which he who lends money suffers; and similarly, of the gain which comes from the loan, or, in other words, the amount which it is worth to him; or to meet the expenses of the man who lends money to many people, and keeps it on hand for that purpose. Now, of a truth, in this contract, under whatever name it be listed, unless a man stipulate for an unreasonably large sum for the use of his money, especially from the poor, there is nothing repugnant to natural equity. For there is no reason why I should lend out my money gratis to a second person who seeks therewith his own gain and advantage, when I myself in the meantime might either have made the same gain, or else certainly was undergoing the risk of losing my principal by the misfortune or dishonesty of the second person, in such wise that I would either have to lose it altogether, or would have to extort it, not without inconvenience, by a suit at law. And, in fact, money is not a sterile thing, since, forsooth, by means of money other things from which an immediate gain may be secured, can be most easily acquired; nay, rather, by the ingenuity of man it has been brought about that even when it is not spent for objects of merchandise, it can multiply itself.
As for the words of Sacred Scripture which are adduced against usury,59 if, indeed, this is something different from that kind of contract by which what it is worth is paid for the use of money, those words have no bearing here. But if, by that precept, it is altogether forbidden to receive a fee for the loan of money, we shall say that the purpose of those words is that no one should demand from his fellow-citizen, especially one of the humbler sort, anything for the use of money which he requires to meet his needs, but should rather furnish him the use of it gratis. For the divine law allowed one to take that same usury from a stranger.60
58. There is, finally, a special kind of contract which is called a partnership, wherein two or more share their services or their property, so that each secures a proportionate part in the profits. In this some contribute their services alone, some money alone, some both, and at the same time in amounts either equal or unequal to the property or the services of the second person. The distribution of the profits here is to be so adjusted with regard to respective equality, that the assigned shares in the profits should stand in the same relation to one another as do the money or the services of one partner to the money or the services of the other. Now, as for the contention which Servius Sulpicius long ago maintained against Scaevola, namely, that a partnership is valid, if, for example, Titius and Seius have agreed that two-thirds of the profits come to Titius, and one-third of the loss, but to Seius two-thirds of the loss, and one-third of the profits; his contention is valid, not as though for the reason that there could be a partnership not repugnant to nature in which those who contribute equal amounts should not get equal returns; but only this much is meant, namely, that it is not always necessary for each individual partner to contribute an equal sum of money, or for each individual to share in the profit and the loss exactly in proportion to the money and the merchandise contributed; but that it is not uncommon for one who contributed less money, to gain a larger share than the other in the profits, because he has contributed services which are more valuable than the money. Here what might appear unequal on the score of money is in the highest degree made equal in consideration of the services. Nevertheless, it is contrary to the nature of partnerships for one to experience loss without any gain, for, of course, the purpose of these partnerships is a community of advantages.
The following also has been shrewdly remarked by others, namely, that a comparison of services with money takes place in two ways: to wit, that the services be compared either with the mere use of the money, or with the actual ownership of the money, in other words, the capital. In the former case the owner parts with the capital and it is safely invested, while the services of the partner are compared merely with the profits which otherwise might with probability be expected from that money, or with the risk of losing the capital, in such a way that the relation in which the services of the second partner stand to the usury or the interest on the money, is the same as that in which his share of the profits stands to that of the first partner. But in the second case, the value of the service is added, as it were, to the capital, and he who furnishes the services has a share in the capital itself proportionate to their worth, in such a way, that the capital and the worth of the services seem to have coalesced, as it were, into one sum. And so, if the services of the one are going to be worth as much as the money of the other, they will not merely share equally in the profits, but even one-half of the capital is regarded as belonging to the one who furnishes the services. If the services are going to amount to merely one-half of the money, the one who contributed the money will get two-thirds of the profits, the one who contributed the services, one-third; and this latter will have a right to one-third of the capital invested, and so on.
59. Finally, something is to be added on the subject of those pacts in which there is an agreement and, as it were, a compromise between the contracting parties regarding some uncertain chance, by the turn of which they promise one another that they will abide. Such pacts are common in public and in private relations. In public relations they are quite as much in evidence during war as during peace. In peace, indeed, the use of the deciding lot is recognized among a large number of peoples, as, for example, in selecting judges, in assigning provinces, in distributing offices, when the competitors are equal, as much in regard to right, as in regard to the qualities necessary for administering the office. For otherwise, if men of unequal right or unequal arts vie with those whose right and arts are superior, the interests of the state are badly cared for. The purpose of these lots is not to seek by an unusual method to learn the will of God, but to get rid of cases of strife and discord, and to enable the one who in any event was able to make disposal by virtue of his authority to avoid the ill will of either side, and to prevent the possibility of quarrels being started about an unfair decision. Also in private business there is a very extensive use of the lot in conferring the shares of an inheritance, as also if a certain indivisible good thing or burden is to be assigned a certain individual among a number of persons who have the same right or obligation. Such pacts are no less frequently employed in war, not merely when the end of the entire war is made to rest upon the outcome of a battle between whole armies, or between two or more chosen men on each side, but also when some perilous post is to be assigned to one of the commanders. Nay more, practically all regular wars, at least those which have been entered into after rejection on both sides of a pacific agreement, seem to presuppose an understanding of that kind, to wit, that he to whose side the fortune of war inclines, may impose upon the vanquished whatever so pleases him. This is, properly speaking, the reason why by the usage of nations in regular warfare the belligerents on both sides, when they come to make peace, are regarded as being on an equality as far as the cause of the war is concerned, and no decision is made as to which of the two had a just cause for fighting. For he who has decided to enter upon a war with a second person, when he might settle the controversy by a pacific transaction, is understood to have committed the decision of his cause to the dice of Mars, and so cannot complain at all of whatever condition thenceforward the doubtful vicissitudes of war may bring upon him.
A similar agreement is entered into by those who entrust the decision of their private controversies to the outcome of duels. The result of the agreement is that the slayer is not bound to make good to the other’s wife or children the loss which has been experienced by his death (which otherwise rests upon the one who slays another without such agreement), unless this has been especially enjoined upon him in the way of punishment by the magistracy; and this is because the other person of his own accord entered a dangerous struggle. Nevertheless, these duels, because they are directly opposed to the purpose of established states are properly forbidden by the magistracy under very heavy penalties.
To this class of pacts are referred also those which are commonly designated wagers, when one of two affirms, and the other denies, the existence of some event which is not yet generally known, and on both sides a definite pledge has been deposited, which goes to the one with whose assertion the event is found to agree; likewise, any and all kinds of games in which a price is paid for contesting. Under the heading of wagers you might also put that which they call a lottery, when a number of persons, after buying something with the money which they have contributed, decide by lot to what individual alone the whole of it ought to go; as also the jar of fortune, as it is styled, when, after casting into an urn a definite number of tallies or tickets, some blank and others inscribed, the chance to make a drawing of the same is sold for a sum of money, on the terms that the one who draws shall receive that which the inscription on the tallies or tickets calls for. All these contain nothing wrong in themselves. For men descend to them by mutual consent, each one exposes his own property to an equal risk, and they have to do with things the disposal of which is in our hands, namely, each one’s own goods. But, in truth, because it is to the interests of the Commonwealth that no one make a bad use of his property, and, indeed, through agreements and games of that kind one can easily be deprived of one’s goods, or be led on to other evils, it is in the hands of the magistracy either to allow or to forbid such pacts, and so either to leave or to take away their validity, or else at least to set definite limits to the value of the things deposited therein.
[1. ]Inst., III.xiii: “An obligation is a bond of law by which we are reduced to the necessity of paying something in compliance with the laws of our state.” In contrast to that original meaning limited to (monetary) debts and property, Pufendorf’s concept of obligation as an operative moral quality embraces any kind of moral or legal bond. See Jean Barbeyrac’s note to JNG, 1, 6, §5, in Le droit de la nature et des gens (Amsterdam, 1706), vol. I, p. 81: “L’Auteur rend générale la définition des Institutes, qui ne regarde proprement que les paiemens, ou tout au plus les engagemens où l’on entre de son pur mouvement, par rapport à autrui.” [The author generalizes the definition of the Institutes that properly regards only payments or at most such engagements that are considered to be voluntarily undertaken toward another.]
[2. ] The obligation toward God which, according to Pufendorf, is fundamental to the force of any other kind of obligation is treated at length elsewhere. See Off., 1.4, “Of the Duty of Man towards God, or concerning Natural Religion.”
[3. ] See bk. II, Observ. 4.
[4. ] Strictly speaking, civil subjection is not unlimited either but bound to peace and common security (JNG, 7, 2, §13), an end requiring a stronger sovereignty than private subjection and including the right of life and death (JNG, 7, 6, §1).
[5. ] Cf. Hobbes, Leviathan, chap. 15: “The laws of nature oblige in conscience always, but in effect then only when there is security. The laws of nature oblige in foro interno; that is to say, they bind to a desire they should take place: but in foro externo; this is, to the putting them in act, not always.” For Hobbes—in contrast to Pufendorf—the latter is not possible until the erection of a commonwealth (ibid.).
[6. ] See especially Deuteronomy 24:1–3; Matthew 5:31–32, 19:1–9.
[7. ] The reference is to Hobbes, Leviathan, chap. 17 (at the end); cf. also the idea of authorization and representation, Leviathan, chap. 16 (at the end).
[8. ]Inst., III.xix.6.
[9. ] The Roman institute of stipulation consisted of a formal verbal promise to furnish something that gave the promisee ground for action against the promisor; see Inst., III.xv (Concerning Verbal Obligations).
[10. ] The distinction of three grades of speaking and the respective grades of the validity of promises is taken from Grotius, JBP, II.xi.1–4; cf. JNG, 3, 5, §§5–7.
[11. ] The latter takes its bearings from the Roman stipulation . . . under a condition (Inst., III.xv.4–6); cf. JNG, 3, 8 (On the Conditions of Promises).
[12. ]Dig., XVIII.i.7; XLIV.vii.8; XLV.i.17,108, §1.
[13. ]Dig., L.xvii.161 and XXXV.i.24.
[14. ] This is an allusion to Hobbes, De cive, chap. 2, §11: “But the Covenants which are made in contract of mutual trust, neither party performing out of hand, if there arise a just suspicion in either of them, are in the state of nature invalid. For he that first performs, by reason of the wicked disposition of the greatest part of men studying their owne advantage either by right or wrong, exposeth himself to the perverse will of him with whom he hath contracted . . .” Such a just suspicion requires “some new cause of fear” which was unknown at the time when the covenant was made, as Hobbes adds in a note. That reservation is missing in his early work The Elements of Law Natural and Politic, ed. Ferdinand Tönnies (London: Cass, 1969), part II: On the Body Politic (I.ii, §10), so that “the wicked disposition of the greatest part of men” seems to be a sufficient reason for not abiding by the covenant bringing about a general invalidity of covenants in the natural state. Cf. JNG, 3, 6, §9, where Pufendorf criticizes the argument of Hobbes’s early work but takes the reservation of the “new cause of fear” from De cive.
[* ] The reference is to Plautus, Asinaria, 202: Semper oculatae manus sunt nostrae: credunt quod vident, “Our hands have eyes always: seeing is believing with them” (Nixon).—Tr.
[15. ] See bk. II, Observ. 5, §1.
[16. ]Dig., XXXIV.iii.21, §1.
[17. ] Cf. JNG, 3, 6, §11 with reference to Dig., XLIV.iv.8; Grotius, JBP, III.xix.4. Pufendorf principally regards pacts contracted under the impression of fear as valid because actions undertaken from fear of a greater evil are to be classed as voluntary (JNG, 3, 6, §10, with reference to Aristotle, Nicomachean Ethics III.1). It is not the victim’s fear but the lack of a right of intimidation on the brigand’s side that invalidates the obligation in the case mentioned here (cf. JNG, 3, 6, §12). See also 3, 6, §13, where Pufendorf—criticizing Hobbes, De cive, chap. 2, §16—distinguishes fear as a “safeguard against some” indefinite “evil” (when contracting the civil obligation) and fear as “terror” arising “from some serious present and threatened evil” (in the case of the brigand).
[18. ] The original note here read: “Probably we ought to read altero (‘a second person’) instead of altore (‘sustainer’).—Tr. “Altore” has been replaced by “altero” in the editions of Jena, 1669, and Frankfurt and Jena, 1680, but was retained in the editions of Zwickau, 1668, and Cambridge, 1672.
[19. ] See Grotius, JBP, III.xix.5.
[20. ] Cf. JNG, 8, 6, §7. Pufendorf’s characterization of war as a state of necessity annulling any legal relation and furnishing a “right of exercising violence to an unlimited degree,” though with an obligation to restore peaceful legal relations as soon as possible, shows obvious similarities to Hobbes’s characterization of the natural state and its right to everything. Grotius, on the contrary, emphasizes an obligation to good faith toward the enemy while the state of war endures (JBP, III.xix.1) and makes detailed regulations for warfare as such (JBP, bk. III). Such regulations don’t have any obligatory force according to Pufendorf (bk. I, Def. 13, §25); nevertheless, he recommends their observance for reasons of humanity, when it is possible to abide by them without endangering the pursuit of one’s right or the ending of the war (bk. II, Observ. 4, §18).
[21. ]Inst., III.xix.19.
[22. ] The reference is to trusts [fideicommissa]. See bk. I, Def. 5, §19, note 30.
[23. ] Otherwise JNG, 5, 13, §7: “Nay, it appears that this further step can rightfully be taken. Two or more to whose interest it is for the war to cease, upon weighing the cases of both sides, may agree on what terms they feel peace can be most fairly secured; and then they can offer these to the warring parties with a threat that, against him who refuses peace on those terms, they are ready to join arms with him who accepts them.”
[24. ] On Pufendorf’s doctrine of the compound moral person, see bk. II, Observ. 5, §2, with notes.
[25. ] On the contractual formation of the state, see ibid.
[26. ] Cf. JNG, 7, 2, §15, with references to Seneca, De beata vita, II.1; Plutarch, The Education of Children, IX.6b; Plato, Symposion 194b.
[27. ] The distinction originates from Aristotle, Nicomachean Ethics, V 1131a2ff (voluntary and involuntary transactions).
[28. ] On the concurrence of rulers with transgressions of the subjects and vice versa, see Grotius, JBP, II.xxi.2, 7.
[29. ] For the discussion in this and the next paragraph of the liability of the property of subjects for the debts of rulers and fellow subjects, see Grotius, JBP, III.ii, “How by the Law of Nations the Goods of Subjects May Be Held for the Debt of Their Rulers; and Therein, on Reprisals”; cf. JNG, 8, 6, §13.
[30. ] Cf. JNG, 4, 11, §19, with references to Dig., XXIX.ii.8, and Quintilian, Declamationes CCLXXIII.
[31. ] The “accidental form” of the state arises from the particular bearer of sovereignty, whether a monarch, an aristocracy, or a democratic assembly. This is in contrast to its “essential form,” which is the “community of right and sovereignty” (JNG, 7, 5, §1; 8, 12, §§1, 9).
[32. ] On the continuity of the state and its debts through changing generations and constitutions, see Grotius, JBP, II.ix, “When Sovereignty or Ownership Ceases”; cf. Pufendorf, JNG, 8, 12, “On Changes Within States and the Dissolution of States.”
[33. ] On the following discussion, see Grotius, JBP, II.xvi.16, “What Compacts Are to Be Considered Personal, and What Real, Is Set Forth, with Distinctions.”
[34. ] On §§32–37 see JNG, 3, 7, “On the Subject-Matter of Promises and Pacts,” and Grotius, JBP, II.xi.8–9.
[35. ] The author in question is Hobbes; see De cive, chap. 2, §18; cf. JNG, 3, 7, §5.
[36. ] Genesis 38.
[37. ] The reference is again to the Roman law institution of trust [fideicommissum]. See bk. I, Def. 5, §19, note 30.
[38. ] See bk. I, Def. 12, note 8 (§6), p. 116.
[39. ] On the following discussion of how to deal with conflicting obligations from different alliances, see Grotius, JBP, II.xv.13.
[* ] By an obvious slip the text has gratiam post religionem habere, for religionem post gratiam habere. Cf. also the De jure naturae et gentium, bk. IV, chap. ii, §20, where the same topic is discussed.—Tr.
[40. ] Cf. JNG, 4, 2, §3, with references to Pietro della Valle, Viaggi pt. II, ep. I; Augustine, Sermones, CLXXX.
[41. ] See Grotius, JBP, II.xiii.7, who refers to Philo Judaeus, De legibus specialibus, cf. JNG, 4, 2, §10.
[42. ] Ovid, Heroides XXI.135ff.
[43. ] On the following §§44–47 on hostages as accessories of pacts, see Grotius, JBP, III.xx.52ff; cf. JNG, 8, 2, §6; 8, 8, §6.
[44. ] This definition of punishment, invoking both retaliation and utility, follows the Grotian definition of JBP, II.xx.1: “Now punishment in general means an evil of suffering which is inflicted because of an evil of action.” But while Grotius ascribes the authority to inflict punishments “to any one of sound judgement who is not subject to vices of the same kind or of equal seriousness” (ibid., §7), Pufendorf follows Hobbes in limiting punishment to “evils inflicted by public authority” (Leviathan, chap. 28). See bk. II, Observ. 4, §16: “But the things inflicted by right of war do not properly have the character of punishments, for they do not proceed from a superior as such, nor do they tend directly to the reformation of the one who does the hurt, or of other men.”
[45. ] See The Institutes of Gaius, in Inst. III.169ff.
[46. ] According to Quintilian, The Orator’s Education, V, chap. x; cf. JNG, 8, 6, §23.
[47. ] According to Ulpian, in Dig., ii.xiv.5.
[48. ] The following division of public pacts is based on Grotius, JBP, II.xv, “On Treaties and Sponsions”; cf. JNG, 8, 9, §§1–4, 6, 10ff.
[49. ] Here Pufendorf refers to the Roman defeat by the Samnites at the Caudine pass in 321 b.c.e. (according to Livy, Ab urbe condita, ed. Patrick G. Walsh [Oxford: Clarendon Press, 1999], IX, chap. viiiff) and to a similar event during the war for the Iberian town Numantia in 143–133 b.c.e. (according to Velleius Paterculus, Compendium of Roman History, trans. Frederick W. Shipley [Cambridge, Mass.: Harvard University Press, 1967], II.1). In both cases the consuls had to give sponsiones [guarantees] unfavorable for Rome, whose subsequent ratification was denied by the senate.
[50. ] The Spartan Phoibidas had been charged with leading troops to Chalcidice in 382 bc (to be employed against Olynthus, the capital of the Chalcidean league). By request of Theban oligarchs and (probably) in a secret Spartan mission, he occupied the Cadmea, the castle of Thebes which was the exponent of the anti-Spartan movement in Greece. The action caused a widespread indignation, and Phoibidas lost his command and was fined. Nonetheless, the occupation that had been approved by the Spartan king Agesilaos was not removed. See Victor Ehrenberg, “Phoibidas,” in Paulys Real-Encyclopädie der classischen Altertumswissenschaften, edited by Georg Wissowa (Stuttgart: Metzler, 1893), XX, 1, pp. 347–48.
[51. ] This definition of contract as a private pact follows Grotius’s interpretation of Dig. II.xiv.5, in JBP, II.xv.1. In JNG, 5, 2, §4, in contrast, Pufendorf makes the distinction according to the object, saying that contracts “have to do with things and actions which are used in commerce and presuppose dominions and prices of things, and the general name of pacts to all agreements entered into regarding other matters [de praestanda opera non mercenaria].”
[52. ] On the typology of private pacts in §§54–59, which largely derives from Roman law, see JNG, 5, 2–5, 8 with references.
[53. ] Cf. JNG, 5, 4, §2, with reference to Cicero, Pro Sexto Roscio Amerino, “In private affairs if any one had managed a business entrusted to him, I will not say maliciously for the sake of his own gain, but even carelessly, our ancestors thought that he had incurred the greatest disgrace. Therefore, legal proceedings for betrayal of a mandate are established, involving penalties no less disgraceful than those for theft. I suppose because, in cases where we ourselves cannot be present, the vicarious faith of friends is substituted; and he who impairs that confidence, attacks the common bulwark of all men, and as far as depends on him, disturbs the bonds of society.”
[54. ] Cf. JNG, 5, 4, §7, with reference to Dig., XLIV.vii.1, §5.
[55. ] See bk. I, Def. 5, §19, note 30.
[56. ] According to Cicero, On Duties, III.xii; cf. JNG, 5, 3, §4.
[57. ] On the Old Testament’s prohibition of usury and on the same matter according to natural law, cf. JNG, 5, 7, §§8ff, which mainly draws on John Selden, De jure naturali et gentium, iuxta disciplinam Ebraeoram (London, 1640), VI.ix; Grotius, JBP, II.xii.20–21; and Luke 6:35 (Grotius, Opera omnia theologica [Amsterdam, 1679; repr. Stuttgart–Bad-Cannstatt: Frommann-Holzboog, 1972], II.1).
[58. ] Allusion to Grotius, JBP, II.xii.21.
[59. ] For example, Exodus 22:24, Leviticus 25:37.
[60. ] Deuteronomy 23:21.