ON GOOD FAITH BETWEEN ENEMIES.
Good faith due to enemies of every description--Due even to pirates,
and others of the same kind, in all treaties with them--A promise
given to them, binding, when not extorted by fear--Oaths to be
inviolably observed--The law of nations does not allow fear to
be alleged as an exception to the above rules--Good faith to be
observed even to a treacherous enemy--This obligation ceases, where
one of the parties violates his engagements--Or refuses a just
compensation--Even where the obligation arose from a different
contract--From loss occasioned--Or from a penalty--Application of
these principles to war.
I. It was before said that the number and extent of actions, lawful
in war, may be considered either upon their own intrinsic merits, or
as rising out of some antecedent engagement. The former point having
before been fully explained, this is the proper place for discussing
the latter, which comprehends the good faith of enemies towards each
other.
Cicero, in his fifth book on the bounds of good and evil, has well
observed that every one must approve and commend a disposition to
adhere faithfully to our engagements not only from disinterested
motives, but in some cases even in opposition to our own interest. And
Augustine says that it is right to maintain the pledge of faith given
to an enemy, for under the character of enemies men do not lose their
right to the fulfilment of a promise, a right which every one possessed
of reason is capable of. It is the power of reason and speech from
which the obligation of promises springs. Nor is it to be supposed
that, because it is lawful to deceive an enemy on some occasions, the
same rule will authorise a violation of faith in engagements. For the
obligation to speak the truth arises from causes antecedent in their
existence to any state of warfare, and they are causes which a state
of warfare may render it necessary to change or abridge. But a promise
confers a new right of itself. A distinction which did not escape the
notice of Aristotle, who, in speaking of truth, says that he does not
consider truth and sincerity in engagements, with relation to justice
or injustice, but as belonging to another class of virtues.
II. As to engagements with pirates, we may observe, that Pompey in a
great measure concluded the disputes with them by treaty, sparing their
lives, and allowing them places to reside in, on condition of their
abandoning their former way of life. The law of nations indeed has not
established the same mode of communication with them, as among regular
enemies in just and lawful war: but still the very circumstance of
their being MEN, entitles them to those privileges which are sanctioned
by the law of nature, among which the observance of engagements is one.
III. Let us consider if a more specious argument than Cicero's may not
be devised on this subject.--In the first place it may be stated that
atrocious malefactors, forming no part of a state, may be punished by
any one whatever, according to the law of nature. For those, who may be
punished with death, may upon the same principle be deprived of their
property and all their rights. And among rights may be enumerated the
right of requiring a fulfilment of promises and engagements: the guilty
may therefore be deprived of this right by way of penalty. In reply to
which it may be said, this will certainly be the case, if the person
is treated with, but not as a malefactor: for the very act of treating
with him shews that he is not considered any longer in that light, but
as one entitled to all the rights of treaty, the criminal part of his
character not being taken into the account, all penalties on that score
being, as it were remitted. For every act of treaty must be interpreted
so as to avoid absurdity.
IV. An objection to treating with pirates upon principles of good faith
is deduced from their calling, which is to extort terms by fear. Now
where a promise has been extorted, the promisor is released from his
engagement, as having unjustly sustained a damage, by an act repugnant
to the nature of human liberty, and to the nature of human action,
which ought to be free.
This, it must be admitted, may sometimes happen, but does not apply to
all promises made to pirates. For to make the person, to whom a promise
has been given, liable to release the engagement, the promiser himself
must have been forced to give the promise under impressions of unjust
fear. So that if any one has promised a ransom in order to redeem a
friend from captivity, he will be bound by his promise. For in this
case there was no impression of fear, as he came voluntarily to make
the contract.
V. A promise too made through the compulsion of fear will be binding,
where it has been ratified by the solemn sanction of an oath: for in
that case it is not only one man making an engagement to a fellow
creature, but binding himself to God by the most solemn appeal:
against which neither fear nor any other motive can form an exception.
Yet the heir of a promiser is not bound by any such obligation:
because inheritances pass according to the rules of human intercourse
established at the original institution of property: but the divine
right to the fulfilment of oaths, as such, is not included in these.
From the above arguments a conclusion may be deduced, that if any one
violates a pledge given to such an enemy either upon oath or without
oath, he will not on that account be liable to punishment among other
nations, because from the general horror which piracy excites, nations
have thought proper to pass over without notice the violation of rules
of faith towards them.
XI.[74] Solemn war, signifying such as is proclaimed and begun on
both sides by authority of the sovereign or state, among its many
other legal rights, includes also that of giving validity to every
promise, which may be conducive to its termination, so that if either
party, through an ill-grounded fear of further calamities, has, even
against his will, made promises unfavourable, or acceded to terms
disadvantageous to himself, such an engagement will be binding. For
the law of nations allows belligerent powers to alarm each other, if
possible, into submission upon the most unequal terms, in the same
manner, as it gives a sanction to many things not strictly equitable
according to natural and municipal law. For if such a practice had not
been established, wars, which are so frequent, could never have been
brought to a conclusion, an object so much for the interest of mankind.
These are the rights of war which Cicero says ought to be inviolably
preserved with an enemy: for an enemy not only retains his natural
rights in war, but certain other rights originating in the consent
of nations. Yet it does not follow from hence that any one, who has
extorted such a promise in unjust war, can, consistently with piety
and the duties of a good man, retain what he has so received, nor can
he compel another to stand to such engagements, whether upon oath, or
not. For the natural and internal injustice of such a promise always
remains the same, nor can the injustice be removed or altered, till it
has received a new and free concurrence from the party, by whom it was
given.
XII. The only impressions of fear, that can be lawfully inspired in
regular war, are those which are approved of by the law of nations.
Thus no one can avail himself of a promise, extorted from an ambassador
under impressions of fear excited by the seizing of his person.
XIII. and XIV. There are two cases, in which a person may not perform
his engagement or promise, without being guilty of treachery: and those
are, where the conditions have not been fulfilled, or some compensation
has been made. For in one and the same treaty all the clauses seem
connected with each other, as a kind of condition expressing the
intention of one party to fulfil his engagement, if the other shall
do the same. Therefore Tullus, in replying to the Albans invokes
destruction upon the head of that people who first rejected the just
claims of ambassadors demanding restitution, wishing that all the
calamities of war might fall upon them. For, says Ulpian, he shall no
longer be held as a confederate, who has renounced a treaty, owing to
some condition, on which it was made, not being fulfilled. For which
reason, wherever it is intended otherwise, it is usually stated in
express terms, that the violation of any particular clause shall not
annul the whole treaty.
XV. The origin of compensation was explained in the second book of this
treatise,[75] where it was said to be the power and right of receiving
an equivalent, for some thing belonging to us, which is in the hands
of another, or any thing due to us, which we cannot otherwise obtain:
and much more then have we a right on the same account to detain any
thing which is ALREADY IN OUR POWER, whether it be of a corporeal or an
incorporeal kind. So that we are not obliged to perform a promise, if
it be no more than equivalent to a thing of ours which the other party
detains. Seneca, in his sixth book ON BENEFITS, says that a creditor
often becomes under an obligation to his debtor, if he takes more than
an equivalent for his debt. For though it may be granted that he has
lent money, yet if by such a loan he has obtained the possession of
lands, which he never bought, he changes situations with his debtor,
and becomes a debtor in his turn.
XVI. It will be the same, if one of the contracting parties owes
as much, or more, from some other engagement: and the debt cannot
otherwise be obtained, than by taking advantage of the present
contract, though it has no connection with the former debt. But in a
LEGAL point of view, all actions are perfectly distinct, nor can their
forms, their grounds, or their substance be confounded; but certain
cases are confined to certain laws, to which it is necessary invariably
to adhere: one law cannot be mixed with another, but every one in the
prosecution of a right must tread upon invariable and beaten ground.
But the law of nations does not regard such distinctions, it allows us
to transgress them where there is no other means of obtaining our right.
XVII. and XVIII. The same may be said too, where the party exacting a
promise, has not contracted any debt by engagement, but has done an
injury to the promiser. And whatever is due by way of punishment may be
balanced against a promise.
XIX. If while a law-suit is depending, the parties enter into an
agreement of any kind, either to pay the costs, or to make good other
damages, they cannot avail themselves both of this agreement, and claim
a further compensation for the original matter in dispute. In the same
manner, if during the continuance of a war the belligerents negotiate
for a conclusion of the original dispute, they are supposed thereby
to settle every cause of hostility, nor can they any further avail
themselves of the rights of war, so as to enjoy both the advantages of
them, and of negotiation, at the same time. For if this were the case,
no treaties could ever be enforced with certainty.
It may be asked, of what nature are the things for which a promise of
compensation should be given? In answer to which it may be observed,
that such a promise or engagement may be made in lieu of some other
obligation incurred during the course of a war: as for instance, where
the breach of a truce has been committed, the rights of an ambassador
violated, or any other action done, repugnant to the principles
established by the law of nations among belligerent powers.
Still it must be observed that the parties, in making compensation,
should abstain with the utmost caution from infringing upon the rights
of a third person, especially where this can be done without abandoning
the principles of the law of nations, which makes the effects of
subjects answerable for the debts of the state. Besides it is the mark
of a dignified mind to adhere to engagements even after receiving an
injury. On which account the Indian sage Jarchas commended that king,
who on sustaining an injury from a neighbouring and confederate power,
said he should not think himself released from his sworn engagements,
which were solemn acts, that no injustice on the part of another could
repeal.
Almost all questions relating to pledges of faith given by one
belligerent power to another, may be solved upon the principles before
laid down, in explaining the nature and force of promises in general;
of oaths, treaties, and conventions, and also in explaining the rights
of the obligations of kings, and the method of interpreting doubtful
points. But in order to remove every doubt and difficulty, perhaps a
brief discussion of the most usual and practical topics of negotiation
will not be deemed tedious.