CHAPTER 20: On the Public Faith, by Which War is Concluded; Comprising
Treaties of Peace, and the Nature of Arbitration, Surrender Hostages,
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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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