The Rights of War and Peace: In Three Volumes

Chapter XV. Of publick Treaties, as well those that are made by the Sovereign himself, as those that are concluded without his Order

817 u c h a p t e r x v u Of publick Treaties, as well those that are made by the Sovereign himself, as those that are concluded without his Order. I. Ulpian has divided all Conventions into publick or private. 1 Thepublick he explains, not as some think, by a Definition, but by Examples. The first, Such as are made in Time of Peace. The second, when Generals agree some Things between themselves. By publick Agreements then he understands those which cannot be made, but by them who are invested with an Authority either Sovereign or Subordinate; by which they are distinguished, not only from the Contracts of private Persons, but also from the Contracts of Kings which they make in their private Affairs. Tho’ even from these private Contracts a War is sometimes occasioned, but oftner from the Publick. Wherefore since we have largely treated of Conventions or Covenants in general; we shall now add somethingconcerning this Kind, which is the most excellent of all others. II. NowthesepublickConventions,whichtheGreeks callsunjh́ac,Conventions or Accommodations, we may divide into Leagues, Sponsions or publick Engagements, and other Agreements. 1 I. (1) Digest. Lib. II. Tit. XIV. De Pactis, Leg. V. See Mr. Noodt’s Treatise De Pactis & Transactionibus, Cap. VII. where he explains this Division; as also Mr. Schulting on the Title De Pactis, § 2. II. (1) See the Close of this Chapter, where you have a short Explication of what is meant by those Sort of publick Conventions, or Agreements. I. What publick Conventions are. II. They are divided into Leagues, publick Engagements or Sponsions, and other Agreements . 818 chapter xv III. 1. The Difference between Leagues and Sponsions may be learnt out of the ninth Book of Livy, 1 where he rightly tells us, that Leagues are such as are made by the Command of the Sovereign Power, wherebythe whole Nation is exposed to the Wrath of the Gods, if they violate it. This used to be done among the Romans by the Heralds in the Presence of the King at Arms; 2 but a Sponsion is when publick Persons, having no Order from the Sovereign Power, yet promise something relating to it. We read in Sallust, 3 The Senate with abundance of Reason decreed,that without theirs and the People’s OrdersnoTreatycouldbemade.Hieronymus King of Syracuse, according to Livy, 4 having contracted anAlliancewith Hannibal, sent afterwards to Carthage, to turn that Alliance into a League. And therefore 5 that of Seneca the Father, (since the Chief has made a League, the Roman People may be said to have done it, and to be included in it) relates to those antient Generals, who had received a special Commission for that Purpose. Indeed 6 in Monarchies the sole Power of making Leagues is in the King, according to Euripides in his Supplices. III. (1) ’Tis where he is speaking of the shameful Accommodation, made by the two Consuls with the Samnites, after the Action at Caudi or Caudium. We likewise see there what Remarks our Author makes a little lower on the Circumstances,which accompanied Treaties made by Order of the People. See Sigonius, De antiquo Jure Italiae, Lib. I. Cap. I. 2. Pater patratus. He was one of the Feciales or Heralds, who took the Oath in the Name of the People. Livy, Lib. I. Cap. XXIV. Num. 6. See below, B. III. Chap. III. § 7. 3. Bell. Jugurth. Cap. XLIII. Edit. Wass. 4. Lib. XXIV. Cap. VI. Num. 7. 5. Contr. IV. 29. Grotius. See on this the Note of the learned John Schulting, Father to the famous Lawyer , whom I have quoted several Times, and who is now Professor at Leyden. 6. See what is below, B. III. Chap. II. § 11, &c. Servius upon that Passage of the Second Aeneid. But you, O Troy, preserve the Faith you gave, If I to save my self, your Empire save. Dryd. Because what the King promises, the State does seem to promise. And where Aeneas going to fight a Duel, first enters into a League with Latinus, he does not, says he, bring in Turnus Swearing, because when the King is present, he has no Power to do it. Grotius. III. The Difference between Leagues and Engagements or Sponsions, and how far publick Engagements oblige. publick treaties 819 ——— tón de d◊ o ◊mnúnai xrew ’ n ⁄Adraston ou fltoc kúrioc túrannoc...