ON THE PUBLIC FAITH, BY WHICH WAR IS CONCLUDED; COMPRISING TREATIES OF
PEACE, AND THE NATURE OF ARBITRATION, SURRENDER HOSTAGES, PLEDGES.
In monarchies the power of making peace a royal prerogative--In
aristocracies and democracies, this right belongs to a greater
number of persons--In what manner the public dominions or
any part of them may be alienated--How far a peace concluded
by the king binds the state, or his successors--Property of
individuals ceded for the benefit of the state at the time of
making peace--Indemnity to those individuals--Losses sustained
in war--No distinction between things acquired according to the
law of nations and the civil law--Transactions of the sovereign
with foreign nations deemed valid from motives of public
utility--General rule of interpreting the terms of peace--In
doubtful cases the former state of things supposed to be continued
by a treaty of peace--Things restored to the state they were
in before the war--Independent states, voluntarily joining
one of the belligerent powers cannot claim indemnity of the
other--General amnesty--Private debts subsisting before the war
not included therein--Restoration of captures--Rules respecting
such restorations--Dubious points to be interpreted to the
prejudice of the party dictating the terms--Distinction between
new causes of war, and the breach of a peace--Rupture by any act
contrary to the terms of peace in general--Infraction of a treaty
by allies or subjects--Violation of a particular treaty--Heads
of treaties--Penalties annexed--Unavoidable impediments to the
fulfilment of a treaty--Peace continued at the option of the
injured party--Relations of amity--How far receiving subjects
and exiles may be considered as a breach thereof--Victory--War
concluded by arbitration--Arbitrators bound by rules of strict
justice--Absolute, and conditional surrender--Hostages can be
detained for no other than the express cause for which they were
given--Released by the death of the party for whom they were
given--Obligation of pledges--Right of redeeming them lost.
I. Good faith, either expressed or implied, must be the foundation
of every treaty between hostile powers. And again the faith that is
expressed is either of a public or a private nature, and the pledges
given either by the sovereign, or inferior authorities in states
constitute the public faith. It is, by such pledges given on the part
of the sovereign power alone, that peace can be concluded, or the
rights of war enforced. In the termination of every war, either the
principal, or accessory causes are to be considered. Treaties are in
general regarded as the principal instrument, by which wars are ended,
and the mediation, or decision of a third person or power is deemed a
secondary or accessory means.
II. The person, who has authority to begin a war, is the only one to
whom the right of making peace can properly belong, according to the
general maxim, that every one is the best judge in the management of
his own affairs. From hence it follows, that public war can be made by
the sovereign power alone on each side: a right which in every kingly
government is very justly vested in the crown.
III. and IV. In popular or aristocratic forms of government, the
right of making war, or concluding peace, is generally lodged in some
public council or body, where a majority of voices may form treaties,
conventions, or resolutions, which will be binding upon the dissentient
part of such council. And all who are bound by a peace, whether
approving it or not are entitled to its benefits.
V. In examining those objects, which form the most material part of
treaties, we may observe, that kingdoms are not so much a patrimony,
which may be alienated at pleasure, as a trust, placed in the hands of
the sovereign for the benefit of his people. Indeed kings themselves
are aware of this, even before the crown descends upon their heads, and
they receive it upon condition of adhering to such sacred obligations.
Nor can such alienations ever be made, so as to be attended with
consequences like those of private contracts, or to render the goods
and effects of subjects answerable for such engagements. For if that
were the case, the fundamental laws of the kingdom, prohibiting such
alienations, would be of no effect.
To render the alienation of the whole public dominion valid, the
consent of the constituted authorities of the state is requisite.
And indeed to confirm the transfer of any particular portion, the
consent of the whole body as well as of that particular member will
be necessary: for otherwise such alienation would be like the violent
separation of a limb from the natural body.
A whole people may in a case of extreme necessity transfer themselves
to the dominion of another, a right which undoubtedly was reserved at
the original formation of society.
Neither is there any thing to prevent a king from alienating his
patrimonial and private possessions. Yet there may be parts of the
royal dominion, which the sovereign cannot alienate from the crown,
especially, if he has received it upon condition of making no personal
appropriation of any thing belonging thereto.
There are two ways in which the possessions of the crown may become
the patrimony of the king, either as separable or inseparable parts of
the kingdom. In the latter case they can only be transferred with the
kingdom itself, but in the former, they may be alienated by themselves.
And where the crown is not patrimonial and hereditary, the restrictions
upon the sovereign in this respect are much greater.
VI. A nation and a king's successors are bound by his engagements,
in proportion to the power, which he derives from the constitution,
of making such engagements. For though this power may not be
absolutely unlimited, yet it ought not to be clogged with unnecessary
restrictions. It should be such as may enable him to exercise his
discretion and judgment on proper occasions for the benefit of his
people.
The case will be different, where a king's power over his subjects is
like that of a master over his household, more than of a sovereign
over his state, as where he has entirely subjugated a people, or where
his controul over their property is absolute. Thus Pharaoh purchased
all the land in Egypt, and others have admitted strangers into their
territories allowing them to hold lands upon such conditions. For here,
there is another right in addition to that of a sovereign, and it is
a right, which sovereignty alone without conquest could never have
conferred.
VII. The right of sovereigns to dispose of the effects of individuals,
in order to make peace, is often a disputed point, nor can they
exercise this right over the property of subjects in any other manner
than as sovereigns.[76]
The property of subjects is so far under the eminent controul of the
state, that the state or the sovereign who represents it, can use
that property, or destroy it, or alienate it, NOT ONLY IN CASES OF
EXTREME NECESSITY, which sometimes allow individuals the liberty of
infringing upon the property of others, but on all OCCASIONS, where
the public good is concerned, to which the original framers of society
intended that private interests should give way. But when that is the
case, it is to be observed, the state is bound to repair the losses of
individuals, at the public expence, in aid of which the sufferers have
contributed their due proportion. Nor will the state, though unable to
repair the losses for the present, be finally released from the debt,
but whenever she possesses the means of repairing the damages, the
dormant claim and obligation will be revived.
VIII. There must be some hesitation in admitting the opinion of
Ferdinand Vasquez, who maintains that the state is not bound to repair
the losses, which are occasioned to individuals in the course of war,
as those are accidents permitted by the rights of war.
For those rights regard the relation of foreign states and enemies to
each other, but bear no reference to the disputes of subjects among
themselves, who, being united in the same cause, ought to share the
common losses, which happen to them in supporting the privileges of
their society. It is a rule likewise established by the civil law, that
no action can be brought against the state for the losses sustained in
war, as every one is thereby induced to defend his own property with
more earnestness and spirit.[77]
IX. Some make a distinction between the property which subjects are
entitled to from the law of nations and that which they possess by the
authority of the civil law, allowing the king a more extensive controul
over the latter, even to the power of taking it without cause or
compensation, which is not the case with property of the former kind.
But this is an improper distinction. For whatever may be the origin of
property, it is always attended with peculiar effects according to the
law of nature: so that it cannot be taken away for any other reasons
than those inherent in the nature of property itself, or derived from
some act of the owners.
X. The prohibition respecting the property of individuals being given
up, except for some public advantage, is a matter resting entirely
between a sovereign and his subjects, and a compensation for losses is
an affair between the state and individuals. But in all transactions
between a king and foreigners, the act of the king is sufficient to
give them NATIONAL validity, not only out of respect to his personal
dignity, but according to the law of nations, which renders the effects
of subjects responsible for the acts of the sovereign.
XI. In interpreting treaties of peace, favourable circumstances
are always to be taken in their utmost latitude, and unfavourable
circumstances to be limited as strictly as possible.[78]
Regarding purely the law of nature, the most favourable construction
is that, whereby every one is restored to his own property and
possessions. Therefore where the articles of a treaty are ambiguous,
the construction should go so far, as to grant the party, who has
evidently justice on his side, the object for which he went to war, and
likewise indemnity for the losses which he has sustained.
But it is not allowable that either party should gain more than an
indemnity, or demand any thing by way of punishment, which is of an
odious nature.
As in making peace, it scarcely ever happens that either party will
acknowledge the injustice of his cause, or of his claims, such a
construction must be given, as will equalize the pretensions of each
side, which may be accomplished, either by restoring the disputed
possessions to their former situation, or by leaving them in the state,
to which the war has reduced them.
XII. Of these two methods, in a doubtful case, the latter is preferred,
as being the more easily adjusted, and occasioning no further change.
From hence the right of postliminium belongs to such prisoners, as are
expressly included in the treaty. Neither are deserters to be given up,
unless it be so agreed. For by the laws of war any power is allowed to
receive deserters, and even to enlist them in his own army.
By such agreement other things remain in the hands of the possessors,
by which is not meant a civil, but a natural possession: for in war
BARE POSSESSION is sufficient, nor is any other kind looked for.
And lands are said to be so possessed, when inclosed or defended by
fortifications, for a temporary occupation by an encampment is not
regarded in this case. Hence Demosthenes in his speech for Ctesiphon,
says that Philip was anxious to make himself master of all the places
he could seize, as he knew that upon the conclusion of a peace, he
should retain them.
Incorporeal rights cannot be held but by the occupation of the things
with which they are connected; as for instance, the services of lands,
or through means of the persons, to whom they belong: but the holders
of such rights lose them, when an enemy has become master of the
country.
XIII. In that other mode of treaty, whereby possession, that has been
disturbed in the course of a war, is restored, it is proper to observe
that the last possession, immediately before the war began, is that,
which is always meant, so that the individuals then unjustly ejected,
may have recourse to law, either to obtain possession by a provisional
decree, or to make good their claim.
XIV. If an independent people VOLUNTARILY and SPONTANEOUSLY place
themselves under the controul and protection of one of the belligerent
powers, such a people cannot be included among those entitled to
restitution, which only belongs to those who have suffered losses by
violence, through fear, or any lawful stratagem of war. Thus when
peace was made among the Grecian states, the Thebans retained Plataea,
observing that they neither owed their possession of it to violence,
nor treachery, but to the free surrender of those, to whom it belonged.
XV. Unless there is an express stipulation to the contrary, it is
understood that, in all treaties of peace, there is an implied assent
that no actions are to be brought for losses occasioned by the
accidental calamities of war, either to states or individuals. For
those are natural consequences of a state of hostilities: and it is
supposed that in doubtful cases, no belligerent would consent to be
convicted of injustice.
XVI. The debts, owing to individuals, at the beginning of a war, are
not to be thought thereby discharged. For they are not things acquired
by the laws of war: for war only prevents the claim to them from being
prosecuted, but by no means releases the obligation. So that when the
impediment of war is removed, such debts retain their original force.
For though it ought not to be presumed that any one should easily
be deprived of a right subsisting before the war, yet this is to be
understood of the rights arising out of the foundation of property,
whereby a community and equality of goods was abolished. For states and
governments, says Cicero, were originally and principally designed to
preserve to every one the possession of his own property.
XVII. The right to claim lands or goods of any kind, by way of
PUNISHMENT, is not of equal force with the above rules. For in
transactions and treaties of that kind between kings and sovereign
states, all claims of that kind seem and indeed ought to be
relinquished, otherwise peace would be no peace, if the old and
original causes of the war were allowed to remain and be revived. And
the most latent and remote causes are supposed to be included in the
most GENERAL TERMS, in treaties of peace, whereby they are sunk in
oblivion.
XVIII. The rights of individuals to penalties are not supposed to be
abandoned, resting entirely upon different grounds: because they may
be decided by legal tribunals without appealing to the sword. Yet
as our rights of this sort are not of the same kind with those of
absolute property, and as penalties have always something odious in
their nature, any faint verbal conjecture will be thought a sufficient
presumption of their being remitted.
XIX. The objection made against taking away any rights, that existed
before the war, applies chiefly to the rights of INDIVIDUALS. For
where the words of a treaty supply any probable conjecture, it is
most natural to suppose that KINGS and NATIONS have more readily
relinquished certain rights, especially in matters, where those rights
are not clearly and fully ascertained. So that, giving the most
favourable construction to their conduct, they are supposed to have
been animated with the noble desire of rooting up and destroying all
the seeds of war.
XX. All captures, made after a treaty is finished, must evidently be
restored. For the treaty puts an end to all the rights of war.
XXI. But in treaties relating to the restoration of things taken
in war, a more extensive interpretation must be given, where the
advantages are mutual than where they incline only to one side.[79]
In the next place all the parts of a treaty relating to persons are to
be interpreted more favourably than those relating to things: and among
those relating to things, priority is given to lands before moveable
effects, and also among these, such as are in the hands of the state
are held in more consideration than the possessions of individuals. And
again, among things in the possession of individuals, those are more
favoured which are held under a beneficial title, than those which are
loaded with incumbrances, as things held by money payments, or by dower.
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.