XI. The power of superiors over inferiors, that is of sovereigns over subjects, with respect to oaths, is the next topic that comes under consideration. Now the act of a superior cannot annul the perfect obligation of an oath, which rests upon natural and revealed law. But as we are not, in a state of civil society, entirely masters of our own actions, which in some measure depend upon the direction of the sovereign power, which has a twofold influence with respect to oaths, in the one case applying to the person who takes, and in the other, to the person who receives them. This authority may be exercised over the person taking the oath, either by declaring, before it is taken, that it shall be made void, or by prohibiting its fulfilment, when taken. For the inferior or subject, considered as such, could not bind himself to engagements, beyond those allowed by the sovereign legislature. In the same manner, by the Hebrew Law, husbands might annul the oaths of wives, and fathers those of children, who were still dependent.
XII. In this place we may cursorily observe, that what is said in the precepts of Christ, and by St. James, against swearing at all, applies not to an oath of affirmation, many instances of which are to be found in the writings of St. Paul, but to promissory oaths respecting uncertain and future events. This is plain from the opposition in the words of Christ. "You have heard it hath been said by them of old time, thou shalt not forswear thyself, but shalt perform unto the Lord thine oath. But I say to you, swear not at all." And the reason given for it by St. James, is that "you fall not into hypocrisy," or be found deceivers; for so the word HYPOCRISY signifies in the Greek.
Again it is said by St. Paul, that all the promises of God in Christ are Yea and Amen, that is are certain and undoubted. Hence came the Hebrew phrase, that a just man's YEA is YEA, and his NO is NO. On the other hand, persons, whose actions differ from their affirmations, are said to speak YEA and NO, that is their affirmation is a denial, and their denial an affirmation. In this manner St. Paul vindicates himself from the charge of lightness of speech, adding that his conversation had not been YEA, and NO.
XIII. Affirmations are not the only modes of obligation. For in many places signs have been used as pledges of faith; thus among the Persians giving the right hand was considered the firmest tie. So that where any form is substituted for an oath, the violation of it will be an act of perjury. It has been said of Kings and Princes in particular, that their faith is the same as an oath. On which account Cicero, in his speech for Dejotarus, commends Caesar no less for the vigour of his arm in battle, than for the sure fulfilment of the pledge and promise of his right hand.
[CHAPTER XV.][39]
On Treaties and on Engagements made by Delegates, Exceeding their Power.
Public Conventions—Divided into treaties, engagements, and other compacts—Difference between treaties and the engagements made by delegates exceeding their powers—Treaties founded on the law of nature—Their origin—Treaties founded on still more extensive principles—Treaties with those, who are strangers to the true religion, prohibited neither by the Jewish nor Christian law—Cautions respecting such treaties—Christians bound to unite against the enemies of the Christian religion—Among a number of Allies in war, which of them have the first pretensions to assistance—Tacit renewal of treaties—The effect of perfidy in one of the contracting parties considered—How far the unauthorized engagements of delegates are binding, when the sovereigns refuse to ratify them—The Caudian Convention considered—Whether the knowledge and silence of the Sovereign makes those unauthorized conventions binding—The Convention of Luctatius considered.
I. Ulpian has divided conventions into two kinds, public and private, and he has not explained a public convention upon the usual principles, but has confined it to a treaty of peace, which he alleges as his first example, and he has made use of the engagements entered into by the generals of two contending powers, as an instance of private conventions. By public conventions therefore he means those, which cannot be made but by the authority and in the name of the sovereign power, thus distinguishing them not only from the private contracts of individuals, but ALSO from the PERSONAL contracts of sovereigns themselves. And indeed private injuries and contracts, no less than public treaties frequently prove the origin of wars. And as private contracts have been already so amply discussed, the higher order of contracts, which come under the denomination of treaties, will necessarily form the leading part in our farther inquiries.
II. and III. Now public conventions may be divided into treaties, engagements, and other compacts.