[381] § 8.
Extinction of rights. 104. The rights of sovereignty and property may terminate by extinction of the ruling or possessing family without provision of successors. Slaves then become free, and subjects their own masters. For there can be no new right by occupancy in such. Even a people or community may cease to exist, though the identity of persons or even of race is not necessary for its continuance. It may expire by voluntary dispersion, or by subjugation to another state. But mere change of place by simultaneous emigration will not destroy a political society, much less a change of internal government. Hence, a republic becoming a monarchy, it stands in the same relation to other communities as before, and in particular, is subject to all its former debts.[382]
[382] § 2. At the end of this chapter, Grotius unfortunately raises a question, his solution of which laid him open to censure. He inquires to whom the countries formerly subject to the Roman empire belong? And here he comes to the inconceivable paradox that that empire and the rights of the citizens of Rome still subsist. Gronovius bitterly remarks, in a note on this passage: Mirum est hoc loco summum virum, cum in præcipua questione non male sentiret, in tot salebras se conjecisse, totque monstra et chimæras confinxisse, ut aliquid novum diceret, et Germanis potius ludibrium deberet, quam Gallis et Papæ parum placeret. This, however, is very uncandid, as Barbeyrac truly points out; since neither of these could take much interest in a theory which reserved a supremacy over the world to the Roman people. It is probably the weakest passage in all the writings of Grotius, though there are too many which do not enhance his fame.
Some casuistical questions. 105. In a chapter on the obligations which the right of property imposes on others than the proprietor, we find some of the more delicate questions in the casuistry of natural law, such as relate to the bonâ fide possessor of another’s property. Grotius, always siding with the stricter moralists, asserts that he is bound not only to restore the substance but the intermediate profits, without any claim for the valuable consideration which he may have paid. His commentator Barbeyrac, of a later and laxer school of casuistry, denies much of this doctrine.[383]
[383] C. 10. Our own jurisprudence goes upon the principles of Grotius, and even denies the possessor by a bad title, though bonâ fide, any indemnification for what he may have laid out to the benefit of the property, which seems hardly consonant to the strictest rules of natural law.
Promises. 106. That great branch of ethics which relates to the obligation of promises has been so diffusely handled by the casuists, as well as philosophers, that Grotius deserves much credit for the brevity with which he has laid down the simple principles, and discussed some of the more difficult problems. That mere promises, or nuda pacta, where there is neither mutual benefit, nor what the jurists call synallagmatic contract, are binding on the conscience, whatever they may be, or ought to be, in law, is maintained against a distinguished civilian, Francis Connan; nor does Barbeyrac seem to dispute this general tenet of moral philosophers. Puffendorf, however, says, that there is a tacit condition in promises of this kind, that they can be performed without great loss to the promiser, and Cicero holds them to be released, if their performance would be more detrimental to one party, than serviceable to the other. This gives a good deal of latitude; but, perhaps, they are in such cases open to compensation without actual fulfilment. A promise given without deliberation, according to Grotius himself, is not binding. Those founded on deceit or error admit of many distinctions; but he determines, in the celebrated question of extorted promises, that they are valid by the natural, though their obligation may be annulled by the civil law. But the promisee is bound to release a promise thus unduly obtained.[384] Thus also the civil law may annul other promises, which would naturally be binding, as one of prospective marriage between persons already under that engagement towards another. These instances are sufficient to show the spirit in which Grotius always approaches the decision of moral questions; serious and learned, rather than profound, in seeking a principle, or acute in establishing a distinction. In the latter quality he falls much below his annotator Barbeyrac, who had indeed the advantage of coming nearly a century after him.
[384] C. 11, § 7. It is not very probable that the promisee will fulfil this obligation in such a case; and the decision of Grotius, though conformable to that of the theological casuists in general, is justly rejected by Puffendorf and Barbeyrac, as well as by many writers of the last century. The principle seems to be, that right and obligation in matters of agreement are correlative, and where the first does not arise, the second cannot exist. Adam Smith and Paley incline to think the promise ought, under certain circumstances, to be kept; but the reasons they give are not founded on the justitia expletrix, which the proper obligation of promises, as such, requires. It is also a proof how little the moral sense of mankind goes along with the rigid casuists in this respect, that no one is blamed for defending himself against a bond given through duress or illegal violence, if the plea be a true one.
In a subsequent passage, 1. iii., c. 19, § 4, Grotius seems to carry this theory of the duty of releasing an unjust promise so far, as to deny its obligation, and thus circuitously to agree with the opposite class of casuists.
Contracts. 107. In no part of his work has Grotius dwelt so much on the rules and distinctions of the Roman law, as in his chapter on contracts, nor was it very easy or desirable to avoid it.[385] The wisdom of those great men, from the fragments of whose determinations the existing jurisprudence of Europe, in subjects of this kind, has been chiefly derived, could not be set aside without presumption, nor appropriated without ingratitude. Less fettered, at least in the best age of Roman jurisprudence, by legislative interference than our modern lawyers have commonly been, they resorted to no other principles than those of natural justice. That the Roman law, in all its parts, coincides with the best possible platform of natural jurisprudence it would be foolish to assert; but that in this great province, or rather demesne land, of justice, the regulation of contracts between man and man, it does not considerably deviate from the right line of reason, has never been disputed by anyone in the least conversant with the Pandects.
[385] C. 12.