nation, when it is so promulgated, that the whole nation may know it. Such truces, as are granted by the chief commander of an army, are subject to the same rule. But in these truces, the rule has no great use; because they are commonly known immediately to all the persons who are concerned in them.

*Truces may either be absolute or conditional. A truce which is made without any conditions annexed to it, though it binds the parties not to do any hostile acts towards one another, leaves them at liberty to fortify their towns, to raise new armies, to build ships, or in any other respect to put themselves into a better posture of defence than they were in before. For, by agreeing merely not to do any hostile act, they can not be understood to have bound themselves not to guard, as well. they can, against any future hostile acts which may be done against them. Conditional truces are broken, when one of the parties does any thing which is contrary to the conditions that have been agreed upon. And universally, a breach of truce, on one part, will justify the other part in beginning hostilities again before the time of the truce would have otherwise expired.

as

All truces, granted for a certain purpose, are confined to this purpose; and the party, which makes use of the cessation of hostilities, to do any thing that is not included within this purpose, and that is to the disadvantage of the other party, breaks the truce. For, as this purpose is the sole reason of the compact, the right, arising from the compact, can extend no farther than this purpose extends. Thus, when a truce is granted to a besieged town, for the purpose of burying the dead, it is a breach of compact to make use of the opportunity which such a truce may afford, to bring any new supplies of men or of provisions into the town: the besiegers, as they granted the garrison a cessation of arms only for the purpose of burying the dead, have a plain right, notwithstanding their compact, to hinder it, by force, from making any other advantage of this cessation.

+ Passports, or letters of safe conduct, which are granted to enemies in time of war, are to be construed by the common rules of interpretation. The nature of a passport does not particularly require, that the words of it should always be understood in their most extensive sense; or that the meaning of it should always be extended beyond the common acceptation of the words, so as to make the favour, which it grants, as complete as possible: whether it is to be interpreted liberally or not, must be determined in the same manner, as if we had any other writ ing to construe. On the contrary, if there is any difference between the rules of interpreting passports, and of interpreting other compacts, there appears, at first sight, to be more reason for thinking that we ought, in interpreting passports, to adhere closely to the letter of them: because the circumstances of the parties concerned in them; that is, of those who grant them, and of those to whom they are granted, are such as afford no room to presume, that the former designed to bestow any extraordinary favour upon the latter. However, this is no general rule for the interpretation of passports: it is not necessary that they should always be interpreted closely; because, though we have no room to presume a design to bestow any extraordinary favour, we must allow those † Grot. Ibid. § XIV.

• Grot. Lib. III. Cap. XXI. § VI. X.

to whom a passport is granted, as much favour as they, who granted it, designed to bestow: and, consequently, we must collect the meaning of the writer, as we collect the meaning of other writers, from his words only, if they are clear and precise; or from his words and other signs together, if his words are obscure or ambiguous; or from other signs only, if there is sufficient reason to believe that his words do not express his meaning perfectly.

Cartels, which are compacts made between two nations that are at war, about the exchange or ransom of prisoners, are to be interpreted by the same rules.

There can be no doubt about the obligation of compacts, which put an end to war and restore peace: nor is there any appearance of reason for imagining, that these compacts are to be interpreted by any rules which are different from the common rules of interpretation. It may, however, be proper to observe, that, whilst * Grotius distinguishes between breaking a peace and giving a new occasion for war, the only real difference between them is, that, when a nation is said to break a peace, we mean, that it does an injury in respect of the rights which were acquired or ascertained by some compact of peace; whereas, it is more particularly said to give a new occasion for war, when it does an injury in respect of some other rights. But, notwithstanding this difference, breaking of a peace is, in effect, giving a new occasion for war: because the compact of peace, as it put an end to any former war, took away, at the same time, all former occasions of war.

XXIII. If we consider the terms or conditions of Equal and unepublic compacts, we may divide them into equal and qual compacts of unequal.

nations.

The matter of equal compacts may either be the benefit of peace, or some other mutual benefit. All compacts are equal, where the inconveniences, which both parties stipulate to bear, or the benefits, which both parties stipulate to receive, are equal. Compacts for restoring peace are equal, if the parties bargain for a mutual restitution of prisoners, or of goods, which they have taken in the war, and for equal security, to be given on both sides, for preserving the peace. Other equal compacts, of mutual benefit, relate either to trade and commerce, or to mutual assistance in war, or to any other matter from whence benefit may arise to the contracting parties.

Public compacts are called unequal ones, when the inconveniences or the benefits, which they produce to the contracting parties, are unequal. Sometimes the weaker, or inferior party, is entitled, by the compact, to a greater benefit than the stronger or superior party; as when a stronger state engages to assist another, that is weaker, and stipulates either for a less assistance, or for none in return. Unequal compacts, which lay the greater burden upon the inferior party, are either such as diminish the sovereign power, which the inferior nation has over itself, or such as do not diminish this power. If the inferior nation binds itself not to make war without the consent of the superior, this condition diminishes its sovereign power: for the power of making war, by its own act, is a part of the sovereign power of a nation. Grotius goes on to divide the unequal burdens which may be laid by compact upon

* Grot. Lib. III. Cap. XX. §XVII.

Grot. Lib. II. Cap. XV. § VI, VII.

the inferior nation, into such as are transient and such as are permanent. Amongst the former sort he reckons an obligation to pay the forces, that the superior party has employed against it in a war, or the dismantling of its towns, or the giving of hostages, or the yielding up of some part of its territory, or of its military stores, or of its ships of war: these are called transient burdens, because they soon end. But the burden will be a continued or permanent burden, if the inferior nation binds itself not to build forts in some particular places, within its own territory, not to go with ships of war, or with any other ships, into some particular parts of the ocean, or not to keep up more than a certain number of ships: these, and many other burdens of the like sort, though they are of indefinite continuance, do not make the inferior state dependent upon the superior for the exercise of its sovereign power. * A farther burden of this sort is an obligation of the inferior party to pay a proper respect to the superior, and to acknowledge its superiority. This, however, does not imply a loss or a diminution of sovereign power; provided all the superiority, which it is obliged to acknowledge, is a superiority only of rank or dignity, and not of power: for one state may be acknowledged superior to the other in rank or dig nity, whilst the latter still continues to govern itself independently of the former.

ter.

XXIV. Grotius observes, that some public comCompacts of the same matter with pacts are of the same tenor with the law of nature, or law of nature, or contain nothing but what is matter of natural right; of different mat whilst others are of a different tenor, and produce such rights as the law of nature would otherwise not have given us. Compacts of the former sort are more particularly useful, where the law of nature admits of some latitude, and the precise rights which arise out of it, depend upon the circumstances that we happen to be in. Express treaties, though in these instances they contain nothing but what is matter of natural right, serve to ascertain such rights as might otherwise have been controverted. Thus it is matter of natural right, that a neutral state shall not convey any contraband goods to our enemy. But what are, and what are not, to be reckoned contraband goods, depends upon such circumstances as may leave some room for cavil, if the several sorts of goods, that are to be reckoned contraband, have not been specified in some express treaty.

This observation of Grotius will furnish us with another, that may be of some use in judging about the law of nature or of nations, from what nations have stipulated with one another in express treaties. Though most nations should, at some time or other, have made treaties, in which they have stipulated the same thing; yet we cannot conclude from hence, that what they have thus stipulated is a right of the law of nature or of nations; because the matter of express treaties is not always matter of natural right. On the contrary, we cannot conclude, that what has been thus stipulated, is not prescribed by the law of nations; because express treaties sometimes contain what would have been matter of natural right, though no such treaties had ever been made. We may explain this observation by the instance which we just now mentioned. If, in enumerating the several sorts of contraband goods

Grot. Lib. I. Cap. II. §. XXI.

† Ibid. Lib. II. Cap. XV. § I.

any particular sort of goods has been omitted, in ever so many express treaties, this is no evidence that it is not contraband by the law of nations: because, though a neutral state would naturally have had no right, in time of war, to carry this sort of goods to our enemy, yet we might give it such a right by express treaty; and any other nations that have ever made any treaties, about the like goods, may have done the same thing. On the contrary, if, in any express treaties, we find, that some particular sort of goods has been excepted as not contraband, this exception is no evidence that they are contraband by the law of nature: because express treaties are sometimes of the same tenor with the law of nature; so that the exception may possibly have guarded against nothing, but what the law of nature or of nations, when rightly understood, would have guarded against without it.

CHAPTER X.

OF THE CHANGES THAT ARE MADE IN STATES, AND IN THEIR CIVIL CONSTITUTIONS.

I. Three ways in which civil constitutions are liable to be changed.—II. Usage may change a civil constitution.-III. Civil constitutions may be changed by express consent-IV. Unjust force does not change a civil constitution in right.-V. Constitutions may be changed upon failure of supreme governors.-VI. Abdication may occasion a change in civil constitutions.-VII. Patrimonial kingdoms are not naturally divisible.-VIII. Rules of simply hereditary succession. IX. Lineally hereditary succession, what.-X. Effect of abdication in lineally hereditary succession.-XI. Change of constitution upon breach of compact.-XII. Sameness of a civil society, what it consists in.-XIII. Several ways in which a state may cease.-XIV. Change of constitution does not change a state.-XV. Some sorts of changes in a state, do not destroy it.-XVI. Variable qualities of a state-XVII. Conquest in an unjust war produces no effects of right.-XVIII. What effects may be occasioned by conquest in a just

war.

ways in

I. *THE Civil constitutions of all states are establish- Three ed by a compact between the governing part of the state which civil constiand the body of the people: and as long as the obliga- tutions are liable to be changed. tion of this compact continues, neither of the parties in it can, of right, change the constitution; because the law of nature requires both of them to observe their compact. But this obligation may cease three ways. First, though it cannot be made void by the separate act of either party, yet they may release one another by mutual consent. Secondly, if, at any time, there is no governing part in being, the obligation will be void; because there can be no compact, or no obligation of a compact, where there is only one party. Thirdly, a wilful and notorious violation of the compact, on the side of the governors,

* See Book II. Chap. IV. § IV. Chap. VI. § II.

will discharge the people from their obligation. Upon any of these events, the people; that is, the body of the society, will be at liberty, as they were originally, to establish any form of government that they

a

tion.

please. Usage may change II. Civil constitutions are ultimately founded in a civil constitu- law, which proceeded from the collective body of the state, before the legislative power was vested in any particular part of it. But we may argue about them as if they were wholly founded in compact: because a compact between the governing part of the society and the people is the immediate cause, which establishes this law so as to make it binding upon both of them; and whatever alters the terms or conditions of that compact, will likewise alter the tenor of the law, that is established by it.

* Both the law and the compact, that we are speaking of, are com monly unwritten ones: and usage or continued practice is the only evidence of the tenor of either of them. Whatever constitution, therefore, might appear, from former usage to have been established in any civil society; a different or a contrary usage, after it obtains, will afford the same evidence, that the governors and the people have mutually agreed to change the constitution, by releasing one another from the terms or conditions, to which they had obliged themselves, by their former compact, and by entering into a new one, in which the terms or conditions are different. Thus an absolute monarchy may become a limited one, or a limited monarchy may become an absolute one, by usage; that is, by the tacit consent of the king and the people. III. If the constitutional governors and the people, may be changed release one another by express consent, from the obliga by express con- tion of the compact, by which the old form of government was established; the body of the society will then be at liberty to establish a new one. Or if, without any such antecedent release, the constitutional governors and the people, expressly agree to establish a new form of government; this agreement will be a tacit release of both parties from their respective obligation of adhering to the old one: because they cannot intend to bind themselves by a second compact, without intending, at the same time, to set aside the obligation of the first, which, if it still subsisted, would make the obligation of the second impossible.

Civil constitutions

sent.

The legislative body of a state is only one of the parties in the compact, by which the constitution of the state is established: and, conse quently, the acts of this body, though they bind the whole society in other things, will not be sufficient to change the constitution, without the immediate and direct consent of the people. In limited monarchies, where the people act in the legislative by their representatives, if we do not attend to this rule, we may be apt to imagine, that as the consent of the representatives, is in no other instances the consent of the people, so their consent, in concurrence with the rest of the legislative body, would be sufficient to change the constitution from a limited to an absolute monarchy. But these representatives are a part of the legislative body; and the joint consent of this whole body, though they are included in it, is only the consent of one party in the compact, by +See Book I. Chap. XII. § IX.

Grot. Lib. II. Cap. XI.