break his Faith with an old One and where Contracts prove repugnant one to another the first stands good the second is a nullity If it be said there has been a violation of the League on the part of that Prince by his giving Assistance to an Enemy As in the Case now before us Spain assists Holland with whom England is at War To this will be answered Spain assists not Holland against England but against France And never did any League or Treaty forbid a Prince or can forbid him to assist his Friend against his own and his Friend 's Common Enemy for this were utterly to subvert the fundamental Principels and Maxims of all Political Prudence and Reason But Secondly though this Accident of a new War arising with another Prince was supposed yet many others as weighty as that may fall out wholly unforeseen for t is not possible for humane understanding to Enumerate all future Contingencies Peradventure the disposition of a Prince's Affairs at home the temper of his People some important Considerations of a private nature and not sit to be Published may render a peace Absolutely Necessary of which the Prince is the sole Judg. And if upon serious and mature thoughts he finds his Inducements Real not Feigned Weighty not Frivolous not Levity or Inconstancy in the Case but Necessity and such a one as he suffers under not sought for by him to palliate a fraud If upon such Circumstances he Treats a Peace exclusive of his Confederate who upon notice given him refuses to be Included especially if just and honorable Conditions be offered him from his Enemy the adequate End of all just Arms and which when rejected may make a War Originally just become unjust I say in so doeing the Faith and Honour of the Prince remain unblemish'd Nor is it any more Imputation to him then to the Master of a Ship bound upon a Voiage though it requires haft not to put out to Sea when the Wind is contrary or to put back to Port when the Storm arises For no supposed Covenants Stipulations or Conditions may be admitted to interpose betwixt the safety and welfare of a Prince or People all such are directly contrary to the Intention of the Contractors and the End of the Contract And are nothing but Words depraved and distorted from their genuine meaning by the Artifice of them who would either preserve or aggrandise themselves by anothers Ruine And as no humane understanding can Enumerate all future Accidents so no finite being can engage its self against all future Invents This is a task onely for Omniscience and Omnipotence for an infinitely extended Wisdom which overtakes Futurities and for a Power Commensurate to that Wisdom The Honour of a Prince which is his moral Conscience is too Nice and Delicat a thing for the ungentle touch of a private hand And t is difficult to give a particular solution to all the Phaenomena without an exact knowledg of the Original Treaties with their Relatives Dependencies and Circumstances wherein the Honour of the Prince is supposed to be concernd But this may be confidently affirm'd if one Prince shall measure the obligation of his Leagues and Treaties with forrain Nations by the Standard of his own Interest and no longer abide by them then they abide that test And in so doing justify himself by the Common Practice and Usage of the most Civilised Nations in all ages whilst the other is tied up to all the niceties punctilios of Words heightned by an Interessed Casuist this scrupulous Prince will be subjected to mighty disadvantages and be fast bound when the other is lose Now that the Practice and usage of Nations has been such is a plentiful Topic in History and a larg Feild to expatiate in It may suffice in this place slightly to touch some few Instances See Thuan. Cambd. Ann. Henry the Fourth of France made a League offensive and defensive with Queen Elizabeth of England and the States Gen. of the United Provinces with Express Covenants that no one should make Peace with Spain without Consent of both the others The Treaty was solemnly ratified at Paris with many Vows and Protestations made by the King in the presence of the Earl of Shrewsbury the English Ambassador and repeated in sundry Letters under his own hand to the Queen to whom he also owed a great debt of gratitude for many signal kindnesses and seasonable supplies of Men and Moneys Yet afterwards finding his People tired and exhausted with continual Wars which had lasted Forty Years and having good Conditions offered him from Philip of Spain he signifies to the Queen and States his disposition to a Peace And though secretary Cecil from hence and Barnevelt from the States were sent expresly to him to confirm him in the League who spared not to press home upon him the Faith thereof and that not without some sharp expostulations Yet that King excused himself by the importunity of his Affairs protesting that his refusal of a Peace with Spain would involv him in Commotions at home That the Law of Nature prefer'd self preservation That the Kingly office will'd his Peoples good should be the supreme Law That Christian Duty required the sparing of Christian Bloud And so concluded a seperate Treaty at Vervins and left the Queen and the States to prosecute their War against Spain In the Year 1635 began the open rupture of the Peace made at Vervins and War was solemnly proclaimed betwixt the two Crowns of France and Spain From which time sundry Treaties were made betwixt France and the States General for carrying on a Common War against Spain their Common Enemy with defences of the one to make a separate Treaty without comprehension of the other Yet the States Gen. awakened at length to discern that the Lower the Spanish Scale was depressed the higher that of France would be lifted And that whiles they enlarged their Border upon the Spanish Netherlands They fought themselves the nearer to France And that as it was necessary for them on the one side to maintain Banks for securing their low Countries against Inundations of the Sea so it was as needful for them on the other side to preserve a Spanish Barriere in Flanders interpofed betwixt them and the Impetuous overflowing torrent of a French Power They at last embraced the Honorable and Advantages Conditions tendred them and Concluded a Peace with Spain Which though France resented and Monsieur Servient the French Plenipotentiary at Munster could tel them That though he had but one eye he could see that one day they would Repent it Yet the States thought themselves out of Pupillage and Capable to Judg their own Concerns in the last resort Nor did they think it reasonable that France should be the sole Arbitrator of Peace and War not onely for themselves but for their Allies also They did nod exclude France from the Peace but France would not be Included And they conceived the French King had no more reason to formalise against them for Concluding a separate Peace then the States had to be offended with Him for carrying on a separate War which continued near twelv Years longer down to the Treaty at the Pirenees in the Year 1659 Both had equal Right of Judging and of Chusing what they Judged their proper Interest And Qui jure suo utitur nemini facit Injuriam Frederic the third of Denmark being confederated with the Pole and Brandenburger against Sueden under Strict defenses of entring into a separate Treaty without the inclusion of the other Allies yet the Suedish King having made that Miraculous March over the Frozen Seas into Zeland the Dane impelled by the Necessity of his affairs Concluded that memorable Treaty at Roschild which under the Mediation of England and France saved Denmark And his Father Christiern the fourth had done the like in the Year 1629 when worsted by the Imperialists after he had Confederated with the Princes of Saxony Pomeren and Mecklenburgh In both which Cases there was a force put and a-Moral Necessity which resolved into this Quicquid Cogit excusat But what shall we say to the aforementiond Treaty at the Pirenees where France Covenanted by Article to abandon Portugal and send them no more succours of Moneys Men Munition c. contrary to former Conventions with that Crown and that upon no Cogency of their Affairs for they were then in a Flourishing Condition but in exchang for several advantagious Concessions from Spain of which when France was in Possession that Article was soon superseded But this is nothing to my purpose Neither am I Willing to inlarge further because I did not design a ful Tract but onely a Brief and Modest Enquiry FINIS
A Brief ENQUIRY INTO LEAGUES AND CONFEDERACIES Made betwixt PRINCES NATIONS With the Nature of their OBLIGATION Composed in the Year 1673. when England and France were Confederates in a Common War against Holland And England made a separate Peace with Holland leaving France Engaged in the War By Sr. P. M. LONDON Printed for J. Tonson at the Judges Head in Chancery-Lane 1682. A brief Enquiry into Leagues and Confederacies made betwixt Princes and Nations with the Nature of their Obligation THat which gives the formal obligation to all Contracts both public and private those betwixt Princes and Governments and those betwixt particular Persons is the will or assent of the Persons contracting And what the mind or meaning and intention of those Persons was at the time of their contracting that and no more is the Subject matter contained in the contract I add those words no more because in matters of Pact and Promise as no Man is obliged to what he never assented so no Man can assent to what he never intended But these Acts of the will and mind of Men are intrinsic secret and not known till manifested and declared by some outward sign such as words which of all others are the most natural and proper signification of our inward sentiments Now a Man having signified his meaning by his words and thereby also testified his assent thereto the obligation of his Will becomes extended to comprehend not his intrinsic meaning only but his words also And he is bound to the true and just performance of them as they are the declarative testimony made by himself of his invisible and otherwise unknown intention And least we should still be in the dark concerning the meaning of the very words themselves Reason dictates that in matters of Contract they ought to be given and taken also without manifest cause to the contrary in their most plain and simple sense according to their popular use and received Propriety For Contracts and Covenants transfer a Right from one Man to another and if every Man were left at liberty in his own cause and to his own advantage either to Substitute or Suborn what tacit meaning he pleases though never so repugnant to his words or to affix what Sense he will upon his words though never so disagreeing to his otherways signified intention these and either of these if admitted would subvert the faith of all Contracts Things stipulated betwixt Man and Man would be under loose uncertainties no Mans Right could be known and Controversies would be endles◠Things destructive to humane Society and which introduce Confusion into the Moral World But still t is true elso that a man is obliged to no more than what his will and intention was to oblige himself unto nor doe his words super induce any new obligation upon him but onely declare a former arising from his inward assent and consequently extend that former Obligation to what is now declared And have no power to alter his secret meaning but onely to testifie it And are not to be considered as disjoind from it but conjoind with it And if a man does not rightly express what he truly means he is unhappy therein and it may involv him in trouble and inconvenience Quid verbis satis hoc cantum erat minimè Quae res igitur valuit Voluntas Quae si tacitis nobis intelligi posset verbis omnino non uteremur quia non potest verba reperta sunt non quae impedirent sed quae indicarent voluntatem Cic. Orat. prc A. Caec Yet if by the most probable conjectures it can be found that his true meaning was different from what his words seemingly import equity will relieve him by preferring his meaning before his words Nay if the meaning of men in their mutual Pacts and Stipulations could certainly be known without words the superaddition of words would be wholly useless and superfluous Therefore in the Interpretation of all contracts that which primarily and principally is to be regarded in case any doubt arises is what the mind of intention of the Contractors was And this must be collected from all the probable signs and indications not only of words whither spoken or written but of other rational Conjectures fetch'd from their several Topics of Precedent Causes concurring Circumstances necessary Consequents or effects and the like And where there is no Reason to the contrary nothing of absurdity that would follow or which admitted would render the Contract useless we ought to stand to the Propriety of the words yet still with this difference that in matters odious they ought to be restrain'd to their narrowest signification in matters favourable enlarged to their full latitude in both according as the Nature of the thing and the Equity of the case shall direct But never to be extended to things unlawful impossible contrary and repugnant absurd and irrational What 's unlawful a man ought not to will and if he docs his Act morally considered is a nullity and so not obligatory What 's impossible he cannot perform and so in vain to will it Contraries he cannot will at the same time because repugnant And 't is to be presum'd that a man of Reason will not will what 's irrational It was a manifest Caption and Cavil in the Romans who being to diviee the Ships betwixt them and Antiochus by equal shares cut every Ship into two equal parts Dimidia par◠Navium For half the Ships according to the usual Propriety of the words is not the half of every Ship cut asunder but half of their entire number with respect first had to their goodness and dimensions It was not said Non inferat but non generent bellum After the second Punic War it was Covenanted by League that the Carthagenians should not have or wage War with any without leave of the Roman People The word War is generical and partible into the two Species of invasiv and defensiv The Question is whether in this case it shall be extended to both Species or restrained only to Invasiv Here t is to be considered that the subject matter of the Question is of a thing odious and burdensome viz. the Diminution of Liberty both Civil and Natural For Nature allows every man a Right of defending himself by repelling force with force and if every man then much more a Politick Society The Equity of thir case directs us to believe that the Carthagenians would not renounce so necessary a Right The propriety of the word War is salv'd well enough by restraining it to the Principal Species of War viz. Invasive which carries with it a greater ostentation of power than a Defensive Thus in a matter Odious the Equity of the Case directing and the Propriety of the Words having or Waging War allowing they shall be construed only to restrain the Carthagenians from any Hostile Aggression or Invasion of others but not from the necessary Defence of themselves when attaqu'd by
an Enemy But suppose the words of the said League had been to forbid the Carthagenians the furnishing or relieving any Enemy of the Roman People with Arms. Here the word Arms is likewise general and may be divided into Offensive and Defensive The Question is whither in this case it shall be taken generally to comprehend all Arms or restrictivly to Arms offensiv onely which are the nobler sort of Arms and sometimes the Nobler species is taken for the whole Genus as in the former Case of War If we proceed by the former method we shall find that the matter of the Question is of a thing Favourable and Benificial viz. the hindring the Relief of an Enemy That the intentional Equity of the Case is to debar an Enemy from all Instruments of Hostility not only those whose proper use is to hurt as Swords Bows Javelins c. but those also whose proper use is to repel all Hostile hurt such as Shields Helmets Coats of Maile or what else were the use of that Age. But so as not to extend the words beyond the Subject matter of Arms to Clothes Victuals and the like for such are not Arms and though they repel Hurt as cold and Hunger yet t is not Hostile him And we find also that the propriety of the words best agrees here with their largest Acceptation T is clear therefore that in this Case the releiving of an Enemy with Arms shall be understood Contrary to what in the former not restrictively to Arms offensive onely but extensively so as to Comprehend all Arms whatsoever All Leagues and Confederacies properly so called made and contracted betwixt Princes and Nations are but the Deductions and Political Results of natural justice and Wisdom as they are particularly applicable to the present Emergencies of State Justice Examins their Principles Wisdom their Ends. So that if two or more Princes Confederate together against a Third whom tehy Declare their Common Enemy And the War so declared be in its Nature Manifestly unjust this is an ill grounded War through defect of the Principle and is rather a Combination then a League Ligaâ—Ã ligando for every League both in name and nature implies a Tie or obligation But no Prince is tied to be unjust Suppose then the War to be as to its Principle just and so the League initially good yet if by the necessary Concomitants and Consequents thereof it be found that in the Event it will certainly involv one of the Confederates in apparent ruin and destructtion This if continued is an ill advised War and the obligation to it ceases through defect of the End For no Prince is bound to destroy himself And the proper and adequate end of all Leagues and Alliances betwixt Princes and Governments is the safety and benefit of each others Crown and People The French King declared England Principal in the War against Holland If there be Principal and Accessory in a War and the Principal be satisfied as to the terms and conditions of Peace offered the other Prince who is but the Accessory ought to acquiesce But if both be Principals the one is free to pursue his Right though the other desists A Prince cannot oblige himself to continue a War during the pleasure of his Confederate or which is all one not to make a Peace without the others consent When I say he cannot I mean not any Civil Impotency or defect of power on the part of the Prince but a moral impossibility or repugnancy on the part of the thing And if a Treaty be couch'd in such like terms they are either meerly insignificant or must admit of some equitable construction to make them reducible to a practical sense For otherwise according to the rigour of the Letter such Words would oblige a Prince to continue an unreasonable an untimely a calamitous War onely to gratifie the Ambition will or humour of another And this will be to tie a Prince to do what he is already tied not to do which is a Moral Contradiction But put Case the Treaty obliges both Princes to continue the War by a Conjunction of forces till both may obtain reasonable Conditions from their Common Enemy In this Case each Prince shall have the Judgment not onely of his own but of the others conditions also so far forth as they relate to the continuance or discontinuance of the War on his part else upon pretext that his Conditions are not reasonable the one may everlastingly Opiniastre the War and Consequently engage the other in it during his single pleasure All Leagues and Contracts as well with Princes as with private Persons are ever mutual and reciprocal and are always made betwixt two parties at fewest and where there are but two in the contract if one of them departs from it t is no longer a contract Now a Prince by the non performance of every material point contained in the League or Treaty violats the Faith thereof and departs from the League it self And this non performance on the part of the one Prince does not operate by way of investing in the other a power or moral faculty of breaking or nonperforming with him in a matter of the like nature for then it would tantamount to this because one is false to me therefore I may be false to him But it operates by way of annulling and avoiding the whole League as having no longer any obligation in it It becomes a meer canceld Bond and is so far from being an agreement that in the issue and effects it proves a Disagreement No Prince is bound by any League to perish singly or in company with another and the safety welfare and prosperity of his People are his Primary obligation First in Time and first in Dignity to which all Treaties and Transactions with forrain Princes are but secondary and subservient neither can any of them be pleaded to evacuate that original and fundamental obligation And though private Persons may in several Instances contract to their own great Hurt and Dammage and still be bound up thereby yet t is otherwise with Princes in their public and politic capacities because of the Conjugate Interest of Prince and People Forasmuch as a Prince cannot greatly hurt himself without hurting them to the preservation of whom and to the procuring of whose good and benefit he is already preingaged In which sense t is infallibly true Actus Posterior non praejudicat priori Princes in their making Leagues and confederacies each with other take their measures from the Consideration of the present posture and condition of their Affairs in the whole complex of them both at home and abroad If the same reasons and inducements remain which first moved them to enter into the League not to persist in it would be levity at least and if conjoind with a design of decieving and hurting another no less then perfidy But if a new Scene of affairs opens quite different from the former if