CHAPTER 20: 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.
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.
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.
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.
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 Thueydides, 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 willful 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 willful 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.
[Translator's note: Sections XLII, XLIII, XLIV, & XLV, of the original, relating to decisions by lot and single combat, are omitted in the translation.]
XLVI. 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, I 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 comformable 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 else. where, 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.
LII. 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.
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