ments, except where terms of a technical sense have been employed. But if the expressions will bear different senses, or if there is some apparent inconsistency in different clauses, it becomes necessary to collect the meaning conjecturally, from the nature of the subject, from the consequences of the proposed interpretation, and from its bearing on other parts of the agreement. This serves to exclude unreasonable and unfair constructions from the equivocal language of treaties, such as was usual in former times to a degree which the greater prudence of contracting parties, if not their better faith, has rendered impossible in modern Europe. Among other rules of interpretation, whether in private or public engagements, he lays down one, familiar to the jurists, but concerning the validity of which some have doubted, that things favourable, as they style them, or conferring a benefit, are to be construed largely; things odious, or onerous to one party are not to be stretched beyond the letter. Our own law, as is well known, adopts this distinction between remedial and penal statutes; and it seems (wherever that which is favourable in one sense is not odious in another) the most equitable principle in public conventions. The celebrated question, the cause, or, as Polybius more truly calls it, the pretext of the second Punic war, whether the terms of a treaty binding each party not to attack the allies of the other shall comprehend those who have entered subsequently into alliance, seems, but rather on doubtful grounds, to be decided in the negative. Several other cases from history are agreeably introduced in this chapter.' 113. It is often, he observes, important to ascertain whether a treaty be personal or real, that is, whether it affect only the contracting sovereign or the state. The treaties of republics are always real or permanent, even if the form of government should become monarchical; but the converse is not true as to those of kings, which are to be interpreted according to the probable meaning where. there are no words of restraint or extension. A treaty subsists with a king though he may be expelled by his subjects; nor is it any breach of faith to take up arms against an usurper with the lawful sovereign's consent. This is not a doctrine which would now be endured.m 114. Besides those rules of interpretation which depend on explaining the words of an engagement, there are others which must sometimes be employed to extend or limit the meaning beyond any natural construction. Thus in the old law case, a bequest, in the event of the testator's posthumous son dying, was held valid, where none was born, and instances of this kind are continual in the books of jurisprudence. It is equally reasonable sometimes to restrain the terms of a promise, where they clearly appear to go beyond the design of the promiser, or where supervenient circumstances indicate an exception which he would infallibly have made. A few sections in this place seem, perhaps, more fit to have been inserted in the eleventh chapter. to repair 115. There is a natural obligation to make amends for injury to the natural rights of another, which is Obligation extended by means of the establishment of pro- injury. perty and of civil society to all which the laws have accorded him." Hence a correlative right arises, but a right which is to be distinguished from fitness or merit. The jurists were accustomed to treat expletive justice, which consists in giving to every one what is strictly his own, separately from attributive justice, the equitable and right dispensation of all things according to desert. With the latter Grotius has nothing to do; nor is he to be charged with introducing the distinction of perfect and imperfect rights, if indeed those phrases are as objectionable as some have accounted them. In the far greater part of this chapter he considers the principles of this important province of natural law, the obligation to compensate damage, rather as it affects private persons than sovereign states. As, in most instances, this falls within the jurisdiction of civil tribunals, the rules laid down by Grotius may to a hasty reader seem rather intended as directory to the judge, than to the conscience of the offending party. This, however, is not by any means the case; he is here, as almost every where else, a master in morality and not in law. That he is not obsequiously following the Roman law will appear by his determining against the natural responsibility of the owner for injuries " C. 17. committed, without his fault, by a slave or a beast. But sovereigns, he holds, are answerable for the piracies and robberies of their subjects when they are able to prevent them. This is the only case of national law which he discusses. But it is one of high importance, being in fact one of the ordinary causes of public hostility. This liability, however, does not exist, where subjects having obtained a lawful commission by letters of marque become common pirates, and do not return home. Rights by law of nations. Those of ambassadors. 116. Thus far, the author begins in the eighteenth chapter, we have treated of rights founded on natural law, with some little mixture of the arbitrary law of nations. We come now to those which depend wholly on the latter. Such are the rights of ambassadors. We have now, therefore, to have recourse more to the usage of civilised people than to theoretical principles. The practice of mankind has, in fact, been so much more uniform as to the privileges of ambassadors than other matters of national intercourse, that they early acquired the authority and denomination of public law. The obligation to receive ambassadors from other sovereign states, the respect due to them, their impunity in offences committed by their principals or by themselves, are not indeed wholly founded on custom, to the exclusion of the reason of the case; nor have the customs of mankind, even here, been so unlike themselves as to furnish no contradictory precedents; but they afford perhaps the best instance of a tacit agreement, distinguishable both from moral right and from positive convention, which is specifically denominated the law of nations. It may be mentioned, that Grotius determines in favour of the absolute impunity of ambassadors, that is, their irresponsibility to the tribunals of the country where they reside, in the case of personal crimes, and even of conspiracy against the government. This, however, he founds altogether upon what he conceives to have been the prevailing usage of civilised states." 117. The next chapter, on the right of sepulture, appears • This is against what we read in the 8th title of the 4th book of the Institutes: Si quadrupes pauperiem fecerit. Pauperies, in the legal sense, which has also some classical authority, means Right of more excursive than any other in the whole treatise. The right of sepulture can hardly become a public question, except in time of war, and as sepulture. such it might have been shortly noticed in the third book. It supplies Grotius, however, with a brilliant prodigality of classical learning. But the next is far more im Punishments. portant. It is entitled, On Punishments. The injuries done to us by others give rise to our right of compensation and to our right of punishment. We have to examine the latter with the more care, that many have fallen into mistakes from not duly apprehending the foundation and nature of punishment. Punishment is, as Grotius rather quaintly defines it, Malum passionis, quod infligitur ob malum actionis, evil inflicted on another for the evil which he has committed. It is not a part of attributive and hardly of expletive justice, nor is it, in its primary design, proportioned to the guilt of the criminal, but to the magnitude of the crime. All men have naturally a right to punish crimes, except those who are themselves equally guilty; but though the criminal would have no ground to complain, the mere pleasure of revenge is not a sufficient motive to warrant us; there must be an useful end to render punishment legitimate. This end may be the advantage of the criminal himself, or of the injured party, or of mankind in general. The interest of the injured party here considered is not that of reparation, which, though it may be provided for in punishment, is no proper part of it, but security against similar offences of the guilty party or of others. All men may naturally seek this security by punishing the offender, and though it is expedient in civil society that this right should be transferred to the judge, it is not taken away, where recourse cannot be had to the law. Every man may even, by the law of nature, punish crimes by which he has sustained no injury; the public good of society requiring security against offenders, and rendering them common enemies." 118. Grotius next proceeds to consider whether these rights of punishment are restrained by revelation, and concludes that a private Christian is not at liberty to punish any criminal, especially with death, for his own security or that of the public, but that the magistrate is expressly empowered by Scripture to employ the sword against malefactors. It is rather an excess of scrupulousness, that he holds it unbecoming to seek offices which give a jurisdiction in capital cases. S 119. Many things essentially evil are not properly punishable by human laws. Such are thoughts and intentions, errors of frailty, or actions from which, though morally wrong, human society suffers no mischief; or the absence of such voluntary virtues as compassion and gratitude. Nor is it always necessary to inflict lawful punishment, many circumstances warranting its remission. The ground of punishment is the guilt of the offender, its motive is the advantage expected from it. No punishment should exceed what is deserved, but it may be diminished according to the prospect of utility, or according to palliating circumstances. But though punishments should bear proportion to offences, it does not follow that the criminal should suffer no more evil than he has occasioned, which would give him too easy a measure of retribution. The general tendency of all that Grotius has said in this chapter is remarkably indulgent and humane, beyond the practice or even the philosophy of his age. 120. War is commonly grounded upon the right of punishing injuries, so that the general principles upon which this right depends upon mankind ought well to be understood before we can judge of so great a matter of national law. States, Grotius thinks, have a right, analogous to that of individuals out of society, to punish heinous offences against the law of nature or of nations, though not affecting themselves, or even any other independent community. But this is to be done very cautiously, and does not extend to violations of the positive divine law, or to any merely barbarous and irrational customs. Wars undertaken only on this score are commonly suspicious. But he goes on to determine that war may be justly waged against those who deny the being and providence of God, though not against idolaters, much less for the sake of compelling any nation |