On the other hand a charge of injustice may fairly be brought against those, who condemn an engagement, yet retain the advantages, which they could not have had without it.
IV. It is necessary to repeat an observation made before, that a sovereign, who has given a commission to another, is bound by the conduct of that person, even though he may have acted contrary to his secret instructions, provided he has not gone beyond the limits of his ostensible, and public commission.
This was a principle of equity, which the Roman Praetor observed in actions brought against employers for the conduct of their agents or factors. An employer could not be made answerable for any act or measure of his factor, but such as was immediately connected with the business, in which he employed him. Nor could HE be considered as an appointed agent, with WHOM the public were apprised, by due notice, to make no contract—If such notice was given, without having come to the knowledge of the contracting parties, the employer was bound by the conduct of the agent. If any one chuses to make a contract on certain conditions, or through the intervention of a third person, it is right and necessary for that person to observe the particular conditions on which he is employed.
From hence it follows that kings and nations are more or less bound by the conventions of their commanders in proportion as their laws, conditions, and customs, are more or less known. If the meaning of their intentions is not evident, conjecture may supply the place of evidence, as it is natural to suppose that any one employed would be invested with full powers sufficient to execute his commission.
A person acting in a subordinate capacity, if he has exceeded the powers of his commission will be bound to make reparation, if he cannot fulfil his engagement, unless he is prevented from doing so by some well known law.
But if he has been guilty of treachery also, in pretending to greater powers than he really possessed, he will be bound to repair the injury, which he has WILFULLY done, and to suffer punishment corresponding with his offence. For the first of these offences, his property is answerable, and on failure of that, his personal liberty: and in the latter case, his person or property, or both must be answerable according to the magnitude of the crime.
V. As a sovereign or his minister is always bound by every contract, it is certain the other party will also be bound by the engagement: nor can it be deemed imperfect. For in this respect there is a comparative equality between sovereign and subordinate powers.
VI. It is necessary to consider too what are the powers of subordinate authorities over those beneath them. Nor is there any doubt that a general may bind the army, and a magistrate, the inhabitants of a place by those actions, which are usually done by commanders, or magistrates, otherwise their consent would be necessary.
On the other hand, in engagements purely beneficial, the advantage shall be on the side of the inferior: for that is a condition comprehended in the very nature of power.—Where there is any burdensome condition annexed it shall not extend beyond the usual limits in which authority is exercised; or if it does, it shall be at the option of the inferior to accept or refuse that condition.
VII. As to the causes and consequences of a war, it is not within the province of a general to decide them. For concluding and conducting a war are very different things, and rest upon distinct kinds of authority.