[36] There is a distinction to be observed between the NECESSARY, and the VOLUNTARY law of nations. Vattel defines the NECESSARY law to be "that which is always obligatory on the conscience, and of which a nation ought never to lose sight in the line of conduct she is to pursue in order to fulfil her duty, but when there is a question of examining what she may demand of other states, she must consult the Voluntary law, whose maxims are devoted to the safety and advantage of the universal society of mankind."—Prelim. sect. 28.
[37] The writer quoted in the preceding note defines that obligation "to be INTERNAL, which binds the conscience, and is deduced from the rules of duty; and that to be EXTERNAL, which is considered relatively to other men, and produces some right between them."—Ibid. sect. 17.
[38] A treaty may be more advantageous to one of the contracting parties than to the other, and yet contain nothing unjust. "Frequently a great monarch, wishing to engage a weaker state in his interest, offers her advantageous conditions, promises her gratuitous succours, or greater than he stipulates for himself; but at the same time he claims a superiority of dignity, and requires respect from his ally. It is this last particular which renders THE ALLIANCE UNEQUAL: and to this circumstance we must attentively advert; for with alliances of this nature we are not to confound those in which the parties treat on a footing of equality, though the more powerful of the allies, for particular reasons, gives more than he receives, promises his assistance gratis, without requiring gratuitous assistance in his turn, or promises more considerable succours or even the assistance of all his forces: here the alliance is equal, but the treaty is unequal, unless indeed we may be allowed to say, that, as the party who makes the greater concessions has a greater interest in concluding the treaty, this consideration restores the equality. Thus, at a time when France found herself embarrassed in a momentous war with the house of Austria, and the cardinal de Richelieu wished to humble that formidable power, he, like an able minister, concluded a treaty with Gustavus Adolphus, in which all the advantage appeared to be on the side of Sweden. From a bare consideration of the stipulations of that treaty, it would have been pronounced an unequal one; but the advantages which France derived from it, amply compensated for that inequality."—Vattel, b. ii. ch. 12. sect. 175. p. 200, 201.
[39] The nature of oaths, contracts and promises having been so fully discussed in the preceding chapters, the translation proceeds from the thirteenth to the fifteenth chapter of the original, the fourteenth being in a great measure only a repetition of our author's former arguments upon the subject.—Translator.
[40] On this subject the opinions of our author, and those of Vattel will reflect light upon each other. From the latter of whom, the following extracts will place the matter in a clear point of view. "If a public person, an ambassador, or a general of an army, exceeding the bounds of his commission, concludes a treaty or a convention without orders from the sovereign or without being authorised to do it by virtue of his office, the treaty is null, as being made without sufficient powers: it cannot become valid without the express or tacit ratification of the sovereign. The express ratification is a written deed by which the sovereign approves the treaty, and engages to observe it. The tacit ratification is implied by certain steps which the sovereign is justly presumed to take only in pursuance of the treaty, and which he could not be supposed to take without considering it as concluded and agreed upon. Thus, on a treaty of peace being signed by public ministers who have even exceeded the orders of their sovereigns, if one of the sovereigns causes troops to pass on the footing of friends through the territories of his reconciled enemy, he tacitly ratifies the treaty of peace. But if, by a reservatory clause of the treaty, the ratification of the sovereign be required—as such reservation is usually understood to imply an express ratification, it is absolutely requisite that the treaty be thus expressly ratified before it can acquire its full force. By the Latin term sponsio, we express an agreement relating to affairs of state, made by a public person, who exceeds the bounds of his commission, and acts without the orders or command of the sovereign. The person who treats for the state in this manner without being commissioned for the purpose, promises of course to use his endeavours for prevailing on the state or sovereign to ratify the articles he has agreed to: otherwise his engagements would be nugatory and illusive. The foundation of this agreement can be no other, on either side, than the hope of such ratification."—Vattel, b. ii. ch. xiv. sect. 208, 209, p. 219. "The general of an army, he proceeds, has indeed by virtue of his commission, a power to enter, as circumstances may require, into a private convention,—a compact relative to himself, to his troops, or to the occurrences of war: but he has no power to conclude a treaty of peace. He may bind himself, and the troops under his command, on all occasions where his functions require that he should have the power of treating; but he cannot bind the state beyond the extent of his commission."—Ibid. sect. 210. p. 220.
[41] "The right of postliminium is that, in virtue of which, persons and things taken by the enemy are restored to their former state, on coming again into the power of the nation to which they belonged." Vattel, b. iii. ch. xiv. sect. 204.
[42] "Personal creditors are in the Roman law called Chirographarii, because they commonly have some bond or note of hand for the debt. And where there are several such creditors, if the debtor's estate is not sufficient to satisfy them all, each has his share assigned in proportion to the largeness of the debt, without any regard to the time, when it was contracted. But in mortgages it was different, the debt of longest standing was to be first satisfied."—Barbeyrac.
[43] When the Roman army had passed under the yoke at Caudium, upon their return, when the matter was referred to the senate, it was said that as the convention was made without the consent of the senate or people, the Roman people were not bound by it, and a proposal was made that those who had signed the treaty should again be given up to the enemy, thus the people would be released from the engagement. This proposal was agreed to, and a decree to that purpose passed.
[44] Luctatius had inserted this clause that the agreement should be good and valid, only in case it was approved by the Roman people.—Liv. lib. xxi. c. xix. See likewise Polybius, lib. iii. c. xxi.
[45] "In all human affairs, where absolute certainty is not at hand to point out the way, we must take probability for our guide. In most cases it is extremely probable that the parties have expressed themselves conformably to the established usage: and such probability ever affords a strong presumption, which cannot be overruled but by a still stronger presumption to the contrary. Camden, in his history of Queen Elizabeth, gives us a treaty, in which it is expressly said that the treaty shall be precisely understood according to the force and appropriate signification of the terms."—Vattel, b. ii. ch. xvii. sect. 271. On the same subject, Judge Blackstone says, that "words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use."—Introduct. to Com. ch. ii. p. 59.