XXII. The person, to whom any thing is ceded by a treaty of peace, is entitled to the produce and fruits of it, from the time of such cession, and not farther back: a point maintained by Augustus Caesar in opposition to Sextus Pompey, who, upon Peloponnesus being ceded to him, claimed also the tributes and revenues, that were due for former years.
XXIII. The names of countries are to be taken according to the usage of the present time, not so much according to the popular acceptation, as to that of men of science, by whom those subjects are generally treated of.
XXIV. These rules also are of frequent use, whenever there is a reference to an antecedent, or to an ancient treaty. For in that case the qualities and conditions of the latter treaty are considered as a repetition of those expressed in the former.—And the person contracting is to be considered as having really performed his part of the engagement, which he certainly would have done, had he not been prevented by the party with whom he is engaged in dispute.
XXV. What some allege in excuse for a short delay in the execution of a treaty is not to be admitted as true, except some unforeseen necessity has occasioned the impediment. For though some of the canon-laws may favour such a plea, that is not surprising, considering they are framed solely with the view of promoting charity among Christians. But in this question relating to the interpretation of treaties, it is not so much our business to lay down what is best and properest for every one to do, nor even to state what religion and piety require, as to consider what every one may be compelled by legal authority to do.
XXVI. In doubtful matters it is usual for an interpretation to be given more prejudicial to the party who has dictated the terms, than to the other, because in general he is the more powerful: in the same manner, in explaining the terms of a bargain, a construction is generally given against the seller: as he may blame himself for not having spoken more clearly, and openly. Whereas the other, comprehending the terms in more meanings than one, might fairly select that most favourable to himself.
XXVII. It is a matter of frequent dispute what constitutes the breach of a peace. For it is not the same thing to break a peace, as to furnish new grounds and causes of war. There is a great difference between these things, both as to the penalty incurred by the aggressor, and as to the aggrieved party being, in other respects, released from his engagements.
There are three ways, in which a peace may be broken,—either by doing something contrary to the very essence of ALL peace,—or something in violation of the EXPRESS terms of a PARTICULAR peace,—or something contrary to the EFFECTS, which are intended to arise from every peace.
XXVIII. A thing is done contrary to the very essence of all peace, when hostile aggressions are committed without any new grounds of war. But where any specious pretext can be assigned for taking arms, it is better it should be supposed purely an act of injustice, than an act of injustice accompanied with perfidy. It is hardly necessary to quote the words of Thucydides, who says, "it is not the party, who repels force by arms, but the power who first makes the attack, that violates a peace."
Having laid down these rules, it remains to be considered, who are the AGGRESSORS, and who are the AGGRIEVED PERSONS, in the breaking of a peace.
XXIX. There are some, who think that a peace is broken, when even those, who have been allies do any of these things. Nor indeed can it be denied, that such an agreement MAY be made, for one ally to become liable to punishment for the actions of another, and for a peace to be deemed ratified and permanent only upon conditions, partly arbitrary, and partly casual.
But it is hardly credible, unless there is the clearest evidence of it, that peace is ever concluded upon such terms. For it is contrary to all rule, and repugnant to the common wishes of those, who make peace. Therefore those, who have committed hostile aggressions, without the assistance of others, will be deemed breakers of the peace, against whom alone the injured party will have a right to take arms.
XXX. If subjects have committed any act of hostility without authority and commission from the state, it will form a proper subject of inquiry, whether the state can be judged responsible for the acts of individuals: to constitute which responsibility, it is evident that a knowledge of the fact, power to punish it, and having neglected to do so, are requisite.
A formal notice given to the sovereign of the offending subjects is supposed to amount to a knowledge of the fact, and it is presumed that every sovereign is able to controul and punish his own subjects, unless there be some defect in his authority: and a lapse of time, beyond what is usually taken for the punishment of civil offences in every country, may be construed into wilful neglect. And such neglect amounts to a sanction of the offence.
XXXI. It is likewise frequently made a subject of inquiry, whether a state is answerable for the conduct of any of her people, who do not take arms by her authority, but serve in the armies of some other power engaged in war. The Cerites, in Livy, clear themselves upon this principle, that it was not by their authority their people bore arms. And it is a well-founded opinion that no such permission ought to be deemed as given, unless it appear from probable reasons that it was intended it should be granted: a thing sometimes done, according to the example of the ancient Aetolians, who thought they had a right to deprive every plunderer of his spoils. A custom the force of which Polybius expresses in the following words, "when other powers, friends and allies of the Aetolians, are at war with each other, the Aetolians may nevertheless serve in the armies on either side, destroying and spoiling their respective countries."
XXXII. Again, a peace ought to be deemed broken, not only by any act of violence done to the body politic itself, but to any of the subjects, without new grounds of war. For peace is made with a view to the security of every individual subject: as the state in making peace acts for the whole, and for all its parts.
Indeed even if new grounds of war should arise, every one may, during the continuance of peace, defend himself and his property. For it is a natural right to repel force by force: a right which it cannot easily be supposed that those, who are upon a footing of equality have ever renounced.
But to practise revenge, or use violence in recovering things taken away will not be lawful, except where justice is denied. Justice may admit of some delay: but the other method demands prompt execution, and therefore should not be undertaken but in extreme emergency. But if the subjects of any country persist in a course of uniform crime, and aggression, repugnant to all natural and civil law, in defiance of the authority of their own government, so that the hand of justice cannot reach them, it will be lawful for any one to deprive them of their spoils, and to exercise upon them the same rigour, as if they were delivered up to punishment. But to attack other innocent persons on that account is a direct violation of peace.
XXXIII. Any act of violence also offered to allies, constitutes a breach of the peace, but they must be such allies as are comprehended in the treaty.
The same rule holds good, even if the allies themselves have not made the treaty, but others have done so on their behalf: since it is evident that those allies regarded the peace as ratified and valid. For they are looked upon as enemies, till it is certain they have consented to the ratification.
Other allies, or connections, who are neither subjects nor named in the treaty of peace, form a distinct class, to whom any violence done cannot be construed into an act of breaking the peace. Yet it does not follow that war may not be undertaken on such an account, but then it will be a war resting entirely upon new grounds.
XXXIV. A peace is broken by doing any thing contrary to the express terms of it; and by this is likewise meant the non-performance of engagements.
XXXV. Nor can we admit of any distinction between articles of greater or minor importance.
For ALL the articles of a treaty are of sufficient magnitude to require observance, though Christian charity may overlook the breach of them upon due acknowledgement. But to provide greater security for the continuance of a peace, proper clauses will be annexed to the minor articles, stating that any thing done against them shall not be deemed an infraction of the treaty: or that mediation shall be adopted in preference to having recourse to arms.
XXXVI. This seems to have been plainly done in treaties, where any special penalty was annexed. A treaty indeed may be made upon, terms allowing the injured party his option either of enacting the penalty, or receding from his engagement: but the nature of the business rather requires the method of mediation. It is evident and proved from the authority of history, that one of the parties, who has not fulfilled his engagement, owing to the neglect of the other to do so, is by no means guilty of breaking the peace: as his obligation was only conditional.
XXXVII. If there is any unavoidable necessity to prevent one party from fulfilling his engagement, as for instance, if a thing has been destroyed, or carried off, by which the restoration of it has become impossible, a peace shall not thereby be deemed broken, the continuance of it not depending upon CASUAL conditions. But the other party may have his option, either to prefer waiting, if there is any reason to hope that the engagement may be fulfilled at some future period, or to receive an equivalent, or to be released, on his side from some corresponding article of the treaty.
XXXVIII. It is honourable, and laudable to maintain a peace, even after it has been violated by the other party: as Scipio did, after the many treacherous acts of the Carthaginians. For no one can release himself from an obligation by acting contrary to his engagements. And though it may be further said that the peace is broken by such an act, yet the breach ought to be taken in favour of the innocent party, if he thinks proper to avail himself of it.
XXXIX. Lastly, a peace is broken by the violation of any special and express clause in the treaty.
XL. In the same manner, those powers, who commit unfriendly acts, are guilty of breaking that peace, which was made solely upon condition of amicable relations being preserved. For what, in other cases, the duties of friendship alone would require, must here be performed by the law of treaty.
And it is to treaties of this kind that many points may be referred, which are discussed by legal writers, relating to injuries done without force of arms, and to the offences of insults. According to this principle, Tully has observed, that any offence committed after a reconciliation is not to be imputed to neglect, but to wilful violation, not to imprudence, but to treachery.
But here it is necessary, if possible, to exclude from the account every charge of an odious kind. So that an injury done to a relation or subject of the person, with whom a treaty of peace has been made, is not to be deemed the same, as one done to himself, unless there are evident proofs that, through them, an attack upon him was intended. And an invasion of another's rights is often to be ascribed to new motives of rapacity, rather than to those of treachery.
Atrocious menaces, without any new grounds of offence, are repugnant to all terms of amity. Any one may assume this threatening posture, by erecting new fortifications in his territory, as a means of annoyance rather than offence, by raising an unusual number of forces: when it is evident that these preparations can be designed against no one, but the power with whom he has concluded peace.
XLI. Nor is it contrary to the relations of amity to receive individual subjects, who wish to remove from the dominions of one power to those of another. For that is not only a principle of natural liberty, but favourable to the general intercourse of mankind. On the same grounds a refuge given to exiles may be justified. But it is not lawful to receive whole towns, or great bodies, forming an integral part of the state. Nor is it more allowable to receive those, who are bound to the service of their own state by oath or other engagement.
XLVI.80 There are two kinds of arbitration, the one of such a nature that it must be obeyed whether the decision be just or unjust, which, Proculus says, is observed when, after a compromise, recourse is had to arbitration.
The other kind of arbitration is where a matter ought to be left to the decision of a person, in whose integrity confidence may be placed, of which Celsus has given us an example in his answer, where he says, "though a freedman has sworn, that he will do all the services, which his patron may adjudge, the will of the patron ought not to be ratified, unless his determination be just."
This interpretation of an oath, though conformable to the Roman laws, is by no means consistent with the simplicity of language considered by itself. For the justice of the case remains the same, in whatever way an arbiter is chosen, whether it be to reconcile contending parties, a character, in which we find the Athenians acting between the Rhodians and Demetrius, or to make an absolute decree.
Although the civil law may decide upon the conduct of such arbiters to whom a compromise is referred, so as to allow of an appeal from their decrees, or of complaints against their injustice, this can never take place between kings and nations. For here there is no superior power, that can either rivet or relax the bonds of an engagement. The decree therefore of such arbiters must be final and without appeal.
XLVII. With respect to the office of an arbiter or mediator, it is proper to inquire, whether the person has been appointed in the character of a judge, or with powers more extensive and discretionary than legal powers. Aristotle says that "an equitable and moderate man will have recourse to arbitration rather than to strict law, ADDING AS A REASON, because an arbitrator may consider the equity of the case, whereas a judge is bound by the letter of the law. Therefore arbitration was introduced to give equity its due weight."
Equity does not signify in this place, as it does elsewhere, that part of justice, which gives a strict interpretation of the general expressions of the law, according to the intention of the law-giver. For that is left to the judge. But it includes every thing, which it is more proper to do than to omit, even beyond what is required by the express rules of justice.—Such kind of arbitration being common among individuals and subjects of the same empire, it is recommended by St. Paul as a practice peculiarly proper for Christians. Yet in doubtful cases it ought not to be presumed that such extensive powers are granted. For where there is any obscurity it abridges this latitude of decision: and especially in contested matters, between independent sovereigns, who, having no common judge, are supposed to bind the mediators, and arbitrators, whom they chuse, by the strictest rules of law.
XLVIII. It is to be observed that arbitrators chosen by nations or sovereign princes may decide upon the matter in dispute, but not confer a possession, which is a matter that can only be decided by established rules of civil law, for by the law of nations the right of possession follows the right of property. Therefore while a cause is pending, no innovation ought to be made, both to prevent partiality and prejudice, and because, after possession has been given, recovery is difficult. Livy in his account of some disputed points between the people of Carthage and Masinissa says, "the Ambassadors did not change the right of possession."
XLIX. There is another kind of arbitration, which takes place, when any one makes an absolute surrender of himself and all his rights to an enemy or foreign power. But still a distinction ought to be made, even here, between the bounds of right and wrong, limiting the submission of the vanquished, on the one hand, and the authority of the conqueror, on the other, to a certain degree.
For there are particular duties, which ought to be observed in the exercise of EVERY right. Taking the right of the conqueror in its literal meaning and full extent, it is true that he is entitled to impose ANY terms upon the conquered, who is now placed, by the external laws of war, in a situation to be deprived of every thing, even personal liberty or life, much more then, of all his property, either of a public or private kind.
L. The first object of a conqueror should be to avoid committing any act of injustice, or using any rigour, except the demerits and atrocity of the enemy require it; to take nothing but by way of lawful punishment. Observing these bounds, as far as security allows, it is always laudable to incline to moderation and clemency. Sometimes even circumstances may require such a line of conduct, and the best conclusion of any war is that, which reconciles all contending claims by a fair adjustment, and a general amnesty. The moderation and clemency to which the vanquished appeal, are by no means an abolition but only a mitigation of the conqueror's absolute right.
LI. There are conditional surrenders, reserving to the individuals, certain personal privileges, and remains of their property, and to the state, certain parts of its constitution.
LII. Hostages and pledges may be considered as an appendage to treaties. And some of those hostages are a voluntary surrender, and others given by authority of the state as a security. For the sovereign has the same power over the persons and actions of his subjects, as over their property. But the state or its ruler will be bound to recompense individuals or their relatives for any inconveniences they may sustain.
LIII. Though the law of nations may in its literal rigour allow of putting hostages to death, it can never conscientiously be enforced, but where they have committed crimes deserving of capital punishment. Neither can they be made slaves. Indeed the law of nations permits them to leave their property to their heirs, although by the Roman law provision was made for confiscating it to the state.
LIV. If it should be asked whether hostages may lawfully make their escape: it may be answered in the negative, especially if, at first, or afterwards, they have pledged their faith to remain, upon condition of being prisoners at large. But it does not appear that states so much intended to impose a hardship upon their subjects by forbidding their escape, as to give the enemy security for the performance of their engagements.
LV. The obligation of hostages is of an odious nature, as being unfriendly to personal liberty, and arising from the act of another. Therefore a strict interpretation must be given to such engagements, so that hostages delivered on one account cannot be detained on any other, nor for any contract, where hostages are not required. But if in another case there has been any violation of good faith, or any debt contracted, hostages may be detained, not as hostages, but in the capacity of subjects, whom the law of nations makes liable to be seized and detained for the acts of their sovereigns. To guard against which, provision may be made by additional clauses for the restoration of hostages, whenever the engagement for which they were delivered has been fulfilled.
LVI. Whoever has been delivered as a hostage for other prisoners, or for the redemption of other hostages, will naturally be released upon the death of those persons. For by death the right of the pledge is extinguished in the same manner as by the ransom of a prisoner. And therefore, according to Ulpian, as a PERSONAL debt is confined to him, who has contracted it, so one person, being substituted for another, cannot be detained any longer than while the obligation of that other continues.
LVII. The decision, whether hostages can be detained upon the death of the sovereign, by whom they were delivered, must depend upon the nature of the engagements, which he has made. If they are PERSONAL, they continue in force only during his natural life, but if they are what are called REAL or more PERMANENT treaties, they pass with all their consequences to his successors. For ACCESSORY articles cannot authorise any deviation from the GENERAL rule of interpreting the fundamental and principal points of a treaty, but the accessory articles themselves ought rather to be explained in conformity to those general rules.
LVIII. A cursory observation may be made, that hostages are sometimes considered, not as appendages, but as forming the principal part of an engagement, where any one is bound not for himself, but for another, and, in case of non-performance, being obliged to pay damages, his hostages or sureties are answerable in his stead.—There is not only some thing of harshness, but even injustice in the opinion that hostages may be bound for the conduct of another even without their own consent.
LIX. Pledges have some characteristics in common with hostages, and some peculiar to themselves. It is a common characteristic of both to be detained for something else that is due, except where public faith is given, and provision made to the contrary. Pledges may be detained with greater latitude than hostages; which is one of their peculiar characteristics, there being less of odium in the former case than in the latter: THINGS being of a nature more proper for detention than PERSONS.
LX. No time can bar the redemption of a pledge, whenever the engagement for which it was given is fulfilled. For it is never to be presumed that engagements proceed from new causes, when old and known causes can be assigned. If a debtor therefore has forborne to redeem a pledge, we may still suppose that he has not abandoned his original engagement, unless there be clear proof to the contrary: as if, for instance, though desirous of redeeming it, he has been prevented, or suffered a space of time to elapse unnoticed, that would be requisite to imply his consent.
Truces of an intermediate denomination between peace and war—Origin of the word—New declaration of war not necessary after a truce—Time from whence a truce and all its correspondent obligations and privileges commence—A retreat may be made, or fortifications repaired during a truce—Distinction respecting the occupying of places—The case of a person prevented from making his retreat, and taken in the enemy's territories at the expiration of a truce, considered—Express terms and consequences of a truce—Breach of a truce by one party justifies a renewal of war by the other—Penalty annexed—Truce broken by the acts of individuals—Rights belonging to safe-conducts without a truce—Persons in a military capacity how far allowed the benefit of a safe-conduct—Privileges of goods arising from thence—Attendants of the person protected by a safe-conduct—Safe-conduct does not expire upon the death of the grantor—Safe-conduct given to continue during the pleasure of the grantor—Protection thereof extending beyond his own territory—Redemption of prisoners favoured, and not to be prohibited by law.
I. and II. In the midst of war there are certain points generally conceded by the belligerent powers to each other, which Tacitus and Virgil call the intercourse of war, and which comprehend truces, safe-conducts, and the redemption of prisoners.—Truces are conventions, by which, even during the continuance of war, hostilities on each side cease for a time. During the continuance of war; for, as Cicero says, in his eighth Philippic, between peace and war there is no medium. By war is meant a state of affairs, which may exist even while its operations are not continued. Therefore, as Gellius has said, a peace and a truce are not the same, for the war still continues, though fighting may cease. So that any agreement, deemed valid in the time of war, will be valid also during a truce, unless it evidently appears that it is not the state of affairs, which is considered, but the commission of particular acts of hostility. On the other hand, any thing, agreed to, to be done, when peace shall be made, cannot take place in consequence of a truce. There is no uniform and invariable period fixed for the continuance of a truce, it may be made for any time, even for twenty, or thirty years, of which there are many instances in ancient history. A truce, though a repose from war, does not amount to a peace, therefore historians are correct in saying that a peace has often been refused, when a truce has been granted.
III. After a truce a new declaration of war is not necessary.
For upon the removal of a temporary impediment, the state of warfare revives in full force, which has only been lulled asleep, but not extinguished. Yet we read in Livy, that it was the opinion of the heralds' college, that after the expiration of a truce war ought to be declared. But the ancient Romans only meant to shew by those superfluous precautions, how much they loved peace, and upon what just grounds they were dragged into war.
IV. The time, generally assigned for the continuance of a truce, is either some uninterrupted period, of a HUNDRED DAYS, for instance, or a space limited by some artificial boundary of time, as the Calends of March. In the former case, the calculation is to be made according to the natural motion of time: whereas all civil computations depend upon the laws and customs of each country. In the other case it is generally made a matter of doubt, whether in naming any particular day, month or year, for the expiration of a truce, that particular day, month, or year, are comprehended in the term of the truce, or excluded from it.
In natural things there are two kinds of boundaries, one of which forms an inseparable part of the things themselves, as the skin does of the body, and the other only adjoins them, as a river adjoins the land, which it bounds or washes. In either of these ways voluntary boundaries may be appointed. But it seems more natural for a boundary to be taken as a part of the thing itself. Aristotle defines the extremity of anything to be its boundary: a meaning to which general custom conforms:—thus if any one has said that a thing is to be done before the day of his death, the day on which he actually dies is to be taken into the account as forming part of the term. Spurinna had apprised Caesar of his danger, which could not extend beyond the Ides of March. Being accosted, respecting the matter, on the very day, he said, the Ides of March are come, but not passed. Such an interpretation is the more proper where the prolongation of time is of a favourable nature, as it is in truces, which are calculated to suspend the effusion of human blood.
The day, FROM which any measure of time is said to begin, cannot be taken into the account; because the word, FROM, used on that occasion, implies separation and not conjunction.
V. It is to be observed that truces, and engagements of that kind immediately bind the contracting parties themselves from the very moment they are concluded. But the subjects on either side are only bound from the time that those engagements have received the form of a law, for which public notice and the regular promulgation are necessary. Upon this being done they immediately derive their authority to bind the subjects. But if notice thereof has only been given in one place, the observance of them cannot be enforced through the whole dominions of the respective sovereigns at one moment, but sufficient time must be allowed for the due promulgation of them to be made in every part. Therefore if in the meantime the subjects on either side have committed an infraction of the truce, they shall be exempt from punishment, but the contracting parties themselves shall be obliged to repair the damages.
VI. The very definition of a truce implies what actions are lawful, and what are unlawful during the continuance of it. All acts of hostility are unlawful either against the persons or goods of an enemy. For every act of violence during a truce is contrary to the law of nations. Even things belonging to an enemy, which by any accident have fallen into our hands, although they had been ours before, must be restored. Because they had become theirs by that external right according to which such things are adjudged. And this is what Paulus the lawyer says, that during the time of a truce the law of postliminium cannot exist, because to constitute the law of postliminium there must be the previous right of making captures in war, which ceases upon the making of a truce.
Either party may go to or return from, any particular place, but without any warlike apparatus or force, that may prove a means of annoyance, or be attended with any danger. This is observed by Servius on that passage of Virgil, where the poet says, "the Latins mingled with their foes with impunity," where he relates also that upon a truce being made between Porsenna and the Romans during a siege, when the games of the circus were celebrating, the generals of the enemy entered the city, contented in the lists, and were many of them crowned as conquerors.
VII. To withdraw farther into the country with an army, which we find from Livy that Philip did, is no way contrary to the intention and principles of a truce: neither is it any breach of it to repair the walls of a place, or to raise new forces, unless it has been prohibited by special agreement.
VIII. To corrupt an enemy's garrisons, in order to seize upon the places which he holds, is undoubtedly a breach of the spirit and letter of any truce. For no such advantage can justly be gained but by the laws of war. The same rule is to be laid down respecting the revolt of subjects to an enemy. In the fourth book of Thucydides, Brasidas received the city of Menda, that revolted from the Athenians to the Lacedaemonians during a truce, and excused his conduct upon the plea of the Athenians having done the same.
Either of the belligerent powers may take possession of places that have been deserted: if they have been REALLY deserted by the former owner with the intention never to occupy them again, but not merely because they have been left unguarded, either BEFORE, or AFTER, the making of a truce. For the former owner's right of dominion therein still remaining renders another's possession of them unjust. Which is a complete refutation of the cavil of Belisarius against the Goths, who seized upon some places during a truce, under pretext of their being left without garrisons.
IX. It is made a subject of inquiry, whether any one being prevented by an unforeseen accident from making his retreat, and being taken within the enemy's territories, at the expiration of a truce, has a right to return. Considering the external law of nations he is undoubtedly upon the same footing as one, who, having gone into a foreign country must, upon the sudden breaking out of war, be detained there as an enemy till the return of peace. Nor is there any thing contrary to strict justice in this; as the goods and persons of enemies are bound for the debt of the state, and may be seized for payment. Nor has such a one more reason to complain than innumerable other innocent persons, on whose heads the calamities of war have fallen. Nor is there occasion to refer to the case, which Cicero has alleged, in his second book On Invention, of a ship of war driven by the violence of the wind into a port, where by law it was liable to confiscation. For in the former case the unforeseen accident must do away all idea of punishment, and in the latter, the right of confiscation must be suspended for a time. Yet there can be no doubt but there is more of generosity and kindness in releasing such a person than in insisting upon the right of detaining him.
X. The express nature of a convention renders some things unlawful during a truce, as for instance, if it is granted only in order to bury the dead, neither party will have a right to depart from those conditions. Thus if a siege is suspended by a truce, and nothing more than such a suspension is thereby granted; the besieged cannot lawfully avail himself of it, to convey fresh supplies of troops and stores into the place. For such conventions ought not to prove beneficial to one party, to the prejudice of the other, who grants them. Sometimes it is stipulated that no one shall be allowed to pass to and fro. Sometimes the prohibition extends to persons and not to goods. In which case, if any one, in protecting his goods, hurts an enemy, the act will not constitute a breach of the truce. For as it is lawful that either party should defend his property, an accidental circumstance cannot be deemed an infringement of that personal security, which was the principal object provided for by the truce.
XI. If the faith of a truce is broken by one of the parties, the other who is thereby injured, will undoubtedly have a right to renew hostilities without any formal declaration. For every article in a treaty contains an implied condition of mutual observance. Indeed we may find in history instances of those, who have adhered to a truce till its expiration, notwithstanding a breach on the other side. But on the other hand there are numerous instances of hostilities commenced against those, who have broken their conventions: a variation, which proves that it is at the option of the injured party to use or not to use his right of renewing war upon the breach of a truce.
XII. It is evident that, if the stipulated penalty is demanded of the aggressor, and paid by him, the other party can no longer maintain his right of renewing the war. For the payment of the penalty restores every thing to its original footing. And on the other hand, a renewal of hostilities implies an intention of the injured party to abandon the penalty, since he has had his option.
XIII. A truce is not broken by the acts of individuals, unless they are sanctioned by the authority of the sovereign, which is generally supposed to be given, where the delinquents are neither punished nor delivered up, nor restitution is made of goods taken away.
XIV. The rights belonging to a safe-conduct are a privilege distinct from the nature of a truce, and our interpretation of them must be guided by the rules laid down respecting privileges.
Such a privilege, to be perfect, must be neither injurious to a third person, nor prejudicial to the giver. Therefore in explaining the terms, in which it is couched, a greater latitude of interpretation may be allowed, especially where the party suing for it receives no benefit, but rather confers one, and still more so where the advantage, accruing to the individual from thence, redounds also to the public benefit of the state.
Therefore the literal interpretation, which the words may bear, ought to be rejected, unless otherwise some absurdity would follow, or there is every reason to suppose that such a literal interpretation is most conformable to the will and intention of the parties concerned. In the same manner, on the other hand, a greater latitude of interpretation may be allowed, in order to avoid the same apprehended absurdity, or to comply more fully with the most urgent and forcible conjectures respecting the will of the contracting parties.
XV. Hence we may infer that a safe-conduct, granted to SOLDIERS, includes not only those of an INTERMEDIATE RANK, but the HIGHEST COMMANDERS. For that is a signification strictly and properly authorised by the words themselves, although they MAY be taken in a more LIMITED meaning. So the term clergymen includes those of episcopal as well as those of inferior rank, and by those serving on board a fleet, we mean not only sailors, but all persons found there, who have taken the military oath.
XVI. Where a free passage is granted, liberty to return is evidently implied, not from the literal force of the expressions themselves, but to avoid the absurdity which would follow the grant of a privilege, that could never be made use of. And by the liberty of coming and going is meant a safe passage till the person arrives in a place of perfect security. From hence the good faith of Alexander was impeached, who ordered those to be murdered on the way, whom he had allowed to depart.
Any one may be allowed to go away without being allowed to return. But no power can properly refuse admitting any one, to whom he has granted leave to come, and on the other hand, his admission implies such a leave to have been given. Going away and RETURNING are indeed very different, nor can any construction of language give them the same meaning. If there be any mistake, although it may confer no right, it exempts the party from all penalties.—A person permitted to come shall only come ONCE, but not a SECOND TIME, unless the additional mention of some time may supply room to think otherwise.
XVII. A son shares the fate of his father, and a wife of her husband no farther than as to the right of residing, for men reside with their families, but in general undertake public missions without them. Yet one or two servants, though not expressly named, are generally understood to be included in a safe-conduct, especially where it would be improper for the person to go without such attendants. For every necessary consequence is understood to go along with any privilege that is given.
XVIII. In the same manner no other effects are included in a safe-conduct, but such as are usually taken on a journey.
XIX. The name of attendants, expressed in a safe-conduct, granted to any one, will not allow him to extend the protection of it to men of atrocious and criminal characters, such as pirates, robbers, and deserters. And the COUNTRY of the attendants being named shews that the protection cannot extend to those of another nation.
XX. The privileges of a safe-conduct do not, in doubtful cases, expire upon the demise of the sovereign who granted it, according to what was said in a former part of this treatise on the nature of favours granted by kings and sovereign princes.
XXI. It has often been a disputed point, what is meant by the expression used in a safe-conduct, that it shall continue during the PLEASURE OF THE GRANTOR. But there seems most reason and truth in the opinion of those, who maintain that the privilege shall continue, till the grantor make some new declaration of his will to the contrary. Because, in doubtful cases, a favour is presumed to continue, till the right, which it conveys, is accomplished. But not so, where all possibility of WILL in the grantor has ceased, which happens by his death. For upon the death of the person all presumption of his WILL continuing must cease: as an accident vanishes when the substance is destroyed.
XXII. The privilege of a safe-conduct protects the person, to whom it is given, even beyond the territories of the grantor: because it is given as a protection against the rights of war, which are not confined to his territory.
XXIII. The redemption of prisoners is much favoured, particularly among Christian states, to whom the divine law peculiarly recommends it as a kind of mercy. Lactantius calls the redemption of prisoners a great and splendid office of justice.
Commanders—Extent of their engagements in binding the sovereign—Exceeding their commission—The opposite party bound by such engagements—Power of commanders in war, or of magistrates with respect to those under their authority—Generals cannot make peace, but may conclude a truce—Extent of their authority in granting protection to persons and property—Such engagements to be strictly interpreted—Interpretation of capitulations accepted by generals—Precautions necessary till the pleasure of the sovereign be known—Promise to surrender a town.
I. Ulpian reckons the agreements, entered into between the generals of opposite armies during the course of a war, among public conventions. So that after explaining the nature of the faith pledged by sovereign powers to each other, it will be proper to make a short inquiry into the nature of engagements made by subordinate authorities; whether those authorities bear a near approach to supreme power, as commanders in chief, or are removed to a greater distance from it. Caesar makes the following distinction between them, observing that the offices of commander and deputy are very different; the latter being obliged to act according to prescribed rules, and the former having unqualified discretion in matters of the highest importance.
II. The engagements of those invested with such subordinate powers are to be considered in a double point of view, whether they are binding upon the sovereign, or only upon themselves. The former of these points has been already settled in a former part of this treatise, where it was shewn that a person is bound by the measures of an agent, whom he has appointed to act in his name, whether his intentions have been expressly named, or are only to be gathered from the nature of the employment. For whoever gives another a commission, gives him along with it every thing in his power that is necessary to the execution of it. So that there are two ways, in which persons acting with subordinate powers may bind their principals by their conduct, and that is, by doing what is probably thought to be contained in their commission, or apart from that, by acting according to special instructions, generally known, at least to those, with whom they treat.
III. There are other modes too, in which a sovereign may be bound by the previous act of his minister; but not in such a manner as to suppose the obligation owes its EXISTENCE to that action, which only gives occasion to its fulfilment. And there are two ways, in which this may happen, either by the consent of the sovereign, or by the very nature of the thing itself. His consent appears by his ratification of the act, either expressed or implied, and that is, where a sovereign has known and suffered a thing to be done, which can be accounted for upon no other motive but that of approval and consent.
The very nature and obligation of all contracts imply that one party is not to gain advantage by the loss of another. Or if advantage is expected from a contract, the contract must be fulfilled or the advantage abandoned. And in this sense, and no other, the proverbial expression, that whatever is beneficial is valid, is to be understood.
On the other hand a charge of injustice may fairly be brought against those, who condemn an engagement, yet retain the advantages, which they could not have had without it.
IV. It is necessary to repeat an observation made before, that a sovereign, who has given a commission to another, is bound by the conduct of that person, even though he may have acted contrary to his secret instructions, provided he has not gone beyond the limits of his ostensible, and public commission.
This was a principle of equity, which the Roman Praetor observed in actions brought against employers for the conduct of their agents or factors. An employer could not be made answerable for any act or measure of his factor, but such as was immediately connected with the business, in which he employed him. Nor could HE be considered as an appointed agent, with WHOM the public were apprised, by due notice, to make no contract—If such notice was given, without having come to the knowledge of the contracting parties, the employer was bound by the conduct of the agent. If any one chuses to make a contract on certain conditions, or through the intervention of a third person, it is right and necessary for that person to observe the particular conditions on which he is employed.
From hence it follows that kings and nations are more or less bound by the conventions of their commanders in proportion as their laws, conditions, and customs, are more or less known. If the meaning of their intentions is not evident, conjecture may supply the place of evidence, as it is natural to suppose that any one employed would be invested with full powers sufficient to execute his commission.
A person acting in a subordinate capacity, if he has exceeded the powers of his commission will be bound to make reparation, if he cannot fulfil his engagement, unless he is prevented from doing so by some well known law.
But if he has been guilty of treachery also, in pretending to greater powers than he really possessed, he will be bound to repair the injury, which he has WILFULLY done, and to suffer punishment corresponding with his offence. For the first of these offences, his property is answerable, and on failure of that, his personal liberty: and in the latter case, his person or property, or both must be answerable according to the magnitude of the crime.
V. As a sovereign or his minister is always bound by every contract, it is certain the other party will also be bound by the engagement: nor can it be deemed imperfect. For in this respect there is a comparative equality between sovereign and subordinate powers.
VI. It is necessary to consider too what are the powers of subordinate authorities over those beneath them. Nor is there any doubt that a general may bind the army, and a magistrate, the inhabitants of a place by those actions, which are usually done by commanders, or magistrates, otherwise their consent would be necessary.
On the other hand, in engagements purely beneficial, the advantage shall be on the side of the inferior: for that is a condition comprehended in the very nature of power.—Where there is any burdensome condition annexed it shall not extend beyond the usual limits in which authority is exercised; or if it does, it shall be at the option of the inferior to accept or refuse that condition.
VII. As to the causes and consequences of a war, it is not within the province of a general to decide them. For concluding and conducting a war are very different things, and rest upon distinct kinds of authority.
VIII. and IX. As to granting truces, it is a power which belongs not only to commanders in chief, but also to inferior commanders. And they may grant them for themselves, and the forces immediately under their command, to places which they are besieging or blockading: but they do not thereby bind other parts of the army. Generals have no right to cede nations, dominions, or any kind of conquests made in war. They may relinquish any thing of which a complete conquest has not been made: for towns frequently surrender on condition of the inhabitants being spared, and allowed to retain their liberty and property: cases, in which there is no time for consulting the will and pleasure of the sovereign. In the same manner, and upon the same principle this right is allowed to subordinate commanders, if it falls within the nature of their commission.
X. As commanders, in all such engagements, are acting in the name of others, their resolutions must not be interpreted so strictly as to bind their sovereigns to greater obligations than they intended to incur, nor at the same time to prove prejudicial to the commanders themselves for having done their duty.
XI. An absolute surrender implies that the party so capitulating submits to the pleasure and discretion of the conqueror.
XII. In ancient conventions a precaution was usually added, that they would be ratified, if approved of by the Roman people. So that if no ratification ensued, the general was bound no further than to be answerable for any advantage that might have accrued to himself.
XIII. Commanders having promised to surrender a town, may dismiss the garrison.
Tacit faith—Example of in desiring to be taken under the protection of a king or nation—Implied in the demand or grant of a conference—Allowable for the party seeking it to promote his own interest thereby provided he uses no treachery—Meaning of mute signs allowed by custom.
I. Both public, private, and mixed, conventions admit of tacit consent, which is allowed by custom. For in whatever manner consent is indicated and accepted it has the power of conveying a right. And, as it has been frequently observed in the course of this treatise, there are other signs of consent besides words and letters: some of them indeed naturally rising out of the action itself.
II. An example of such tacit agreement may be found in the case of a person coming from an enemy, or foreign country, and surrendering himself to the good faith of another king or people. For such a one tacitly binds himself to do nothing injurious or treacherous to that state, where he seeks protection, a point which is beyond all doubt.
III. In the same manner, a person who grants or requests a conference, gives a tacit promise, that he will do nothing prejudicial to the parties, who attend it. Livy pronounces an injury done to an enemy, under the pretext of holding a conference, a violation of the law of nations.
IV. But such a tacit promise, to take no advantage of a parley or conference, is not to be carried farther than what has been said. Provided all injury and injustice are avoided, it is reckoned a lawful stratagem, for any one to avail himself of a parley in order to draw off the enemy's attention from his military projects, and to promote his own. The device, by which Asdrubal extricated his army from the Ausetanian forests, was of this kind, and by the same means Scipio Africanus, the elder, gained a perfect knowledge of Syphax's camp. Both these circumstances are related by Livy.
V. There are certain mute signs, deriving all their force and meaning from custom; such as the fillets, and branches of olive formerly used: among the Macedonians pikes erected, and among the Romans shields placed upon the head, were signs of a suppliant surrender obliging the party to lay down his arms. In the present day a white flag is a sign of suing for a parley. Therefore all these methods have the force of express declarations.
Admonitions to the observance of good faith—Peace always to be kept in view in the midst of war—Peace beneficial to the conquered—To the conqueror—And to be chosen in cases where the issue is doubtful—To be religiously observed—Prayer—Conclusion of the work.
I. Here seems to be the proper place to bring this work to a conclusion, without in the least presuming that every thing has been said, which might be said on the subject: but sufficient has been produced to lay a foundation, on which another, if he pleases, may raise a more noble and extensive edifice, an addition and improvement that will provoke no jealousy, but rather be entitled to thanks.
Before entirely dismissing the subject, it may be necessary to observe, that, as in laying down the true motives and causes, that alone will justify war, every possible precaution at the same time was taken to state the reasons for which it should be avoided; so now a few admonitions will not be deemed superfluous, in order to point out the means of preserving good faith in war, and maintaining peace, after war is brought to a termination, and among other reasons for preserving good faith the desire of keeping alive the hope of peace, even in the midst of war, is not the least important. For good faith, in the language of Cicero, is not only the principal hold by which all governments are bound together, but is the key-stone by which the larger society of nations is united. Destroy this, says Aristotle, and you destroy the intercourse of mankind.
In every other branch of justice there is something of obscurity, but the bond of faith is clear in itself, and is used indeed to do away the obscurity of all transactions. The observance of this is a matter of conscience with all lawful kings and sovereign princes, and is the basis of that reputation by which the honour and dignity of their crowns are maintained with foreign nations.
II. In the very heat of war the greatest security and expectation of divine support must be in the unabated desire, and invariable prospect of peace, as the only end for which hostilities can be lawfully begun. So that in the prosecution of war we must never carry the rage of it so far, as to unlearn the nature and dispositions of men.
III. These and these alone would be sufficient motives for the termination of war, and the cultivation of peace. But apart from all considerations of humanity, the INTERESTS of mankind would inevitably lead us to the same point. In the first place it is dangerous to prolong a contest with a more powerful enemy. In such a case some sacrifices should be made for the sake of peace, as in a storm goods are sometimes thrown overboard to prevent a greater calamity, and to save the vessel and the crew.
IV. Even for the stronger party, when flushed with victory, peace is a safer expedient, than the most extensive successes. For there is the boldness of despair to be apprehended from a vanquished enemy, dangerous as the bite of a ferocious animal in the pangs of death.
V. If indeed both parties are upon an equal footing, it is the opinion of Caesar, that it is the most favourable moment for making peace, when each party has confidence in itself.
VI. On whatever terms peace is made, it must be absolutely kept. From the sacredness of the faith pledged in the engagement, and every thing must be cautiously avoided, not only savouring of treachery, but that may tend to awaken and inflame animosity. For what Cicero has said of private friendships may with equal propriety be applied to public engagements of this kind, which are all to be religiously and faithfully observed, especially where war and enmity have ended in peace and reconciliation.
VII. And may God, to whom alone it belongs to dispose the affections and desires of sovereign princes and kings, inscribe these principles upon their hearts and minds, that they may always remember that the noblest office, in which man can be engaged, is the government of men, who are the principal objects of the divine care.