XXXVII. If there is any unavoidable necessity to prevent one party from fulfilling his engagement, as for instance, if a thing has been destroyed, or carried off, by which the restoration of it has become impossible, a peace shall not thereby be deemed broken, the continuance of it not depending upon CASUAL conditions. But the other party may have his option, either to prefer waiting, if there is any reason to hope that the engagement may be fulfilled at some future period, or to receive an equivalent, or to be released, on his side from some corresponding article of the treaty.
XXXVIII. It is honourable, and laudable to maintain a peace, even after it has been violated by the other party: as Scipio did, after the many treacherous acts of the Carthaginians. For no one can release himself from an obligation by acting contrary to his engagements. And though it may be further said that the peace is broken by such an act, yet the breach ought to be taken in favour of the innocent party, if he thinks proper to avail himself of it.
XXXIX. Lastly, a peace is broken by the violation of any special and express clause in the treaty.
XL. In the same manner, those powers, who commit unfriendly acts, are guilty of breaking that peace, which was made solely upon condition of amicable relations being preserved. For what, in other cases, the duties of friendship alone would require, must here be performed by the law of treaty.
And it is to treaties of this kind that many points may be referred, which are discussed by legal writers, relating to injuries done without force of arms, and to the offences of insults. According to this principle, Tully has observed, that any offence committed after a reconciliation is not to be imputed to neglect, but to wilful violation, not to imprudence, but to treachery.
But here it is necessary, if possible, to exclude from the account every charge of an odious kind. So that an injury done to a relation or subject of the person, with whom a treaty of peace has been made, is not to be deemed the same, as one done to himself, unless there are evident proofs that, through them, an attack upon him was intended. And an invasion of another's rights is often to be ascribed to new motives of rapacity, rather than to those of treachery.
Atrocious menaces, without any new grounds of offence, are repugnant to all terms of amity. Any one may assume this threatening posture, by erecting new fortifications in his territory, as a means of annoyance rather than offence, by raising an unusual number of forces: when it is evident that these preparations can be designed against no one, but the power with whom he has concluded peace.
XLI. Nor is it contrary to the relations of amity to receive individual subjects, who wish to remove from the dominions of one power to those of another. For that is not only a principle of natural liberty, but favourable to the general intercourse of mankind. On the same grounds a refuge given to exiles may be justified. But it is not lawful to receive whole towns, or great bodies, forming an integral part of the state. Nor is it more allowable to receive those, who are bound to the service of their own state by oath or other engagement.
XLVI.[80] There are two kinds of arbitration, the one of such a nature that it must be obeyed whether the decision be just or unjust, which, Proculus says, is observed when, after a compromise, recourse is had to arbitration.
The other kind of arbitration is where a matter ought to be left to the decision of a person, in whose integrity confidence may be placed, of which Celsus has given us an example in his answer, where he says, "though a freedman has sworn, that he will do all the services, which his patron may adjudge, the will of the patron ought not to be ratified, unless his determination be just."