ON THE FAITH ON THOSE INVESTED WITH SUBORDINATE POWERS IN WAR.
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.