The Rights of War and Peace

by Hugo Grotius

X. Another question frequently arises, which is, when two states are engaged in war with each other, to which of them a power, equally allied to both, ought in preference to give assistance. Here too we must observe there can be no obligation to support unjust wars. On which account that confederate power, which has justice on its side, will have a claim to preference, if engaged in war with another not comprehended in the number of confederates, or even if engaged with one of the confederates themselves.

But if two powers engage in a war, equally unjust on both sides, a third power, united in confederacy with both, will prudently abstain from interference. Again, if two powers allied to us are engaged in a just war against others, with whom we have no connection; in the supplies of men or money that we furnish to either we ought to follow the rule, observed in the case of personal creditors.[42]

But if personal assistance, which cannot be divided, is required of the contracting party, in that case the preference must be given to the engagements of the longest standing. However the case of a subsequent treaty, which makes the engagements of a more binding and extensive nature, will form an exception to this rule.

XI. The tacit renewal of a treaty ought not to be presumed upon at the expiration of the period, limited for its continuance, unless certain acts be performed, which can expressly be construed as a renewal of it, and can be taken in no other sense.

XII. If one of the parties violates a treaty, such a violation releases the other from its engagements. For every clause has the binding force of a condition. And as an example of this, a passage from Thucydides may be quoted, where that historian says that "for one power to accede to a new confederacy, and to desert an ally who has neglected to fulfil his engagements, is no breach of a treaty; but not to assist another power in conformity to sworn engagements amounts to a violation thereof." And this is generally true, except where it has been agreed to the contrary, that a treaty shall not be null and relinquished for trifling disgusts and miscarriages.

XIII. Conventions are as various and numerous as treaties, and the distinction made between them is owing more to the difference of power in those by whom they are made, than to any real difference in their own nature. But there are two particular points of inquiry materially connected with all conventions, the first of which relates to the extent of the negotiator's obligation, when the sovereign or the state refuses to ratify a convention, whether he is bound to make an indemnity to the other party for the disappointment, to restore things to the situation they were in before he treated, or to deliver up his own person. The first opinion seems conformable to the Roman civil law, the second to equity as it was urged by the tribunes of the people, L. Livius, and J. Melius, in the dispute about the peace of Caudium;[43] but the third is that most generally adopted, as was done respecting the two famous conventions of Caudium and Numantia. But there is one caution particularly to be observed, and that is, that the sovereign is no way bound by such unauthorised conventions, until he has ratified them. In the convention alluded to, if the Samnites had intended to bind the Roman people, they should have retained the army at Caudium, and sent ambassadors to the senate and people at Rome, to discuss the treaty, and learn upon what terms they chose to redeem their army.

XIV. Another question is, whether the knowledge and silence of the sovereign bind him to the observance of a convention. But here it is necessary to make a distinction between an absolute convention, and one made upon condition of its being ratified by the sovereign. For as all conditions ought to be literally fulfilled, such a condition, on failure of fulfilment, becomes void.

This principle was very properly observed in the convention made between Luctatius and the Carthaginians; to which the people refused to accede, as it had been made without their consent.[44] A new treaty therefore was made by public authority.

The next thing to be considered is, whether there may not be some act of consent besides silence. For without some visible act, silence is not of itself sufficient to warrant a probable conjecture of intention. But if certain acts are done which can be accounted for upon no other grounds than those of consent, they are supposed to ratify a treaty. Thus if the convention of Luctatius had contained many clauses, some of them relinquishing certain rights, and those clauses had been always duly observed by the Romans, such observance would be justly taken for a ratification of the treaty.