XVII. The right to claim lands or goods of any kind, by way of PUNISHMENT, is not of equal force with the above rules. For in transactions and treaties of that kind between kings and sovereign states, all claims of that kind seem and indeed ought to be relinquished, otherwise peace would be no peace, if the old and original causes of the war were allowed to remain and be revived. And the most latent and remote causes are supposed to be included in the most GENERAL TERMS, in treaties of peace, whereby they are sunk in oblivion.
XVIII. The rights of individuals to penalties are not supposed to be abandoned, resting entirely upon different grounds: because they may be decided by legal tribunals without appealing to the sword. Yet as our rights of this sort are not of the same kind with those of absolute property, and as penalties have always something odious in their nature, any faint verbal conjecture will be thought a sufficient presumption of their being remitted.
XIX. The objection made against taking away any rights, that existed before the war, applies chiefly to the rights of INDIVIDUALS. For where the words of a treaty supply any probable conjecture, it is most natural to suppose that KINGS and NATIONS have more readily relinquished certain rights, especially in matters, where those rights are not clearly and fully ascertained. So that, giving the most favourable construction to their conduct, they are supposed to have been animated with the noble desire of rooting up and destroying all the seeds of war.
XX. All captures, made after a treaty is finished, must evidently be restored. For the treaty puts an end to all the rights of war.
XXI. But in treaties relating to the restoration of things taken in war, a more extensive interpretation must be given, where the advantages are mutual than where they incline only to one side.[79]
In the next place all the parts of a treaty relating to persons are to be interpreted more favourably than those relating to things: and among those relating to things, priority is given to lands before moveable effects, and also among these, such as are in the hands of the state are held in more consideration than the possessions of individuals. And again, among things in the possession of individuals, those are more favoured which are held under a beneficial title, than those which are loaded with incumbrances, as things held by money payments, or by dower.
XXII. The person, to whom any thing is ceded by a treaty of peace, is entitled to the produce and fruits of it, from the time of such cession, and not farther back: a point maintained by Augustus Caesar in opposition to Sextus Pompey, who, upon Peloponnesus being ceded to him, claimed also the tributes and revenues, that were due for former years.
XXIII. The names of countries are to be taken according to the usage of the present time, not so much according to the popular acceptation, as to that of men of science, by whom those subjects are generally treated of.
XXIV. These rules also are of frequent use, whenever there is a reference to an antecedent, or to an ancient treaty. For in that case the qualities and conditions of the latter treaty are considered as a repetition of those expressed in the former.—And the person contracting is to be considered as having really performed his part of the engagement, which he certainly would have done, had he not been prevented by the party with whom he is engaged in dispute.
XXV. What some allege in excuse for a short delay in the execution of a treaty is not to be admitted as true, except some unforeseen necessity has occasioned the impediment. For though some of the canon-laws may favour such a plea, that is not surprising, considering they are framed solely with the view of promoting charity among Christians. But in this question relating to the interpretation of treaties, it is not so much our business to lay down what is best and properest for every one to do, nor even to state what religion and piety require, as to consider what every one may be compelled by legal authority to do.