CHAPTER 21: On Faith During the Continuance of War, on Truces,
Safe-Conducts, and the Redemption of Prisoners.
Truces of an intermediate denomination between peace and war —
Origin of the word — New declaration of war not necessary after a truce
— Time from whence a truce and all its correspondent obligations and
privileges commence — A retreat may be made, or fortifications repaired
during a truce — Distinction respecting the occupying of places — The
case of a person prevented from making his retreat, and taken in the enemy's
territories at the expiration of a truce, considered — Express terms and
consequences of a truce — Breach of a truce by one party justifies a
renewal of war by the other — Penalty annexed — Truce broken by the
acts of individuals — Rights belonging to safe-conducts without a truce
— Persons in a military capacity how far allowed the benefit of a
safe-conduct — Privileges of goods arising from thence — Attendants
of the person protected by a safe-conduct — Safe-conduct does not expire
upon the death of the grantor — Safe-conduct given to continue during the
pleasure of the grantor — Protection thereof extending beyond his own
territory — Redemption of prisoners favoured, and not to be prohibited by
I. and II. IN THE midst of war there are certain points
generally conceded by the belligerent powers to each other, which Tacitus and
Virgil call the intercourse of war, and which comprehend truces, safe-conducts,
and the redemption of prisoners. Truces are conventions, by which, even during
the continuance of war, hostilities on each side cease for a time. DURING THE
CONTINUANCE OF WAR; for, as Cicero says, in his eighth Philippic, between peace
and war there is no medium. By war is meant a state of affairs, which may exist
even while its operations are not continued. Therefore, as Gellius has said, a
peace and a truce are not the same, for the war still continues, though
fighting may cease. So that any agreement, deemed valid in the time of war,
will be valid also during a truce, unless it evidently appears that it is not
the state of affairs, which is considered, but the commission of particular
acts of hostility. On the other hand, any thing, agreed to, to be done, when
peace shall be made, cannot take place in consequence of a truce. There is no
uniform and invariable period fixed for the continuance of a truce, it may be
made for any time, even for twenty, or thirty years, of which there are many
instances in ancient history. A truce, though a repose from war, does not
amount to a peace, therefore historians are correct in saying that a peace has
often been refused, when a truce has been granted.
III. After a truce a new declaration of war is not necessary. For
upon the removal of a temporary impediment, the state of warfare revives in
full force, which has only been lulled asleep, but not extinguished. Yet we
read in Livy, that it was the opinion of the heralds' college, that after the
expiration of a truce war ought to be declared. But the ancient Romans only
meant to shew by those superfluous precautions, how much they loved peace, and
upon what just grounds they were dragged into war.
IV. The time, generally assigned for the continuance of a truce, is
either some uninterrupted period, of a HUNDRED DAYS, for instance, or a space
limited by some artificial boundary of time, as the Calends of March. In the
former case, the calculation is to be made according to the natural motion of
time: whereas all civil computations depend upon the laws and customs of each
country. In the other case it is generally made a matter of doubt, whether in
naming any particular day, month or year, for the expiration of a truce, that
particular day, month, or year, are comprehended in the term of the truce, or
excluded from it.
In natural things there are two kinds of boundaries, one of which forms an
inseparable part of the things themselves, as the skin does of the body, and
the other only adjoins them, as a river adjoins the land, which it bounds or
washes. In either of these ways voluntary boundaries may be appointed. But it
seems more natural for a boundary to be taken as a part of the thing itself.
Aristotle defines the extremity of anything to be its boundary: a meaning to
which general custom conforms: - thus if any one has said that a thing is to be
done before the day of his death, the day on which he actually dies is to be
taken into the account as forming part of the term. Spurinna had apprised
Caesar of his danger, which could not extend beyond the Ides of March. Being
accosted, respecting the matter, on the very day, he said, the Ides of March
are come, but not passed. Such an interpretation is the more proper where the
prolongation of time is of a favourable nature, as it is in truces, which are
calculated to suspend the effusion of human blood.
The day, FROM which any measure of time is said to begin, cannot be taken
into the account; because the word, FROM, used on that occasion, implies
separation and not conjunction.
V. It is to be observed that truces, and engagements of that kind
immediately bind the contracting parties themselves from the very moment they
are concluded. But the subjects on either side are only bound from the time
that those engagements have received the form of a law, for which public notice
and the regular promulgation are necessary. Upon this being done they
immediately derive their authority to bind the subjects. But if notice thereof
has only been given in one place, the observance of them cannot be enforced
through the whole dominions of the respective sovereigns at one moment, but
sufficient time must be allowed for the due promulgation of them to be made in
every part. Therefore if in the meantime the subjects on either side have
committed an infraction of the truce, they shall be exempt from punishment, but
the contracting parties themselves shall be obliged to repair the damages.
VI. The very definition of a truce implies what actions are lawful,
and what are unlawful during the continuance of it. All acts of hostility are
unlawful either against the persons or goods of an enemy. For every act of
violence during a truce is contrary to the law of nations. Even things
belonging to an enemy, which by any accident have fallen into our hands,
although they had been ours before, must be restored. Because they had become
theirs by that external right according to which such things are adjudged. And
this is what Paulus the lawyer says, that during the time of a truce the law of
postliminium cannot exist, because to constitute the law of postliminium there
must be the previous right of making captures in war, which ceases upon the
making of a truce.
Either party may go to or return from, any particular place, but without any
warlike apparatus or force, that may prove a means of annoyance, or be attended
with any danger. This is observed by Servius on that passage of Virgil, where
the poet says, "the Latins mingled with their foes with impunity,"
where he relates also that upon a truce being made between Porsenna and the
Romans during a siege, when the games of the circus were celebrating, the
generals of the enemy entered the city, contented in the lists, and were many
of them crowned as conquerors.
VII. To withdraw farther into the country with an army, which we find
from Livy that Philip did, is no way contrary to the intention and principles
of a truce: neither is it any breach of it to repair the walls of a place, or
to raise new forces, unless it has been prohibited by special agreement.
VIII. To corrupt an enemy's garrisons, in order to seize upon the
places which he holds, is undoubtedly a breach of the spirit and letter of any
truce. For no such advantage can justly be gained but by the laws of war. The
same rule is to be laid down respecting the revolt of subjects to an enemy. In
the fourth book of Thueydides, Brasidas received the city of Menda, that
revolted from the Athenians to the Lacedaemonians during a truce, and excused
his conduct upon the plea of the Athenians having done the same.
Either of the belligerent powers may take possession of places that have
been deserted: if they have been REALLY deserted by the former owner with the
intention never to occupy them again, but not merely because they have been
left unguarded, either BEFORE, or AFTER, the making of a truce. For the former
owner's right of dominion therein still remaining renders another's possession
of them unjust. Which is a complete refutation of the cavil of Belisarius
against the Goths, who seized upon some places during a truce, under pretext of
their being left without garrisons.
IX. It is made a subject of inquiry, whether any one being prevented
by an unforeseen accident from making his retreat, and being taken within the
enemy's territories, at the expiration of a truce, has a right to return.
Considering the external law of nations, he is undoubtedly upon the same
footing as one, who, having gone into a foreign country, must, upon the sudden
breaking out of war, be detained there as an enemy till the return of peace.
Nor is there any thing contrary to strict justice in this; as the goods and
persons of enemies are bound for the debt of the state, and may be seized for
payment. Nor has such a one more reason to complain than innumerable other
innocent persons, on whose heads the calamities of war have fallen. Nor is
there occasion to refer to the case, which Cicero has alleged, in his second
book ON INVENTION, of a ship of war driven by the violence of the wind into a
port, where by law it was liable to confiscation. For in the former case the
unforeseen accident must do away all idea of punishment, and in the latter, the
right of confiscation must be suspended for a time. Yet there can be no doubt
but there is more of generosity and kindness in releasing such a person than in
insisting upon the right of detaining him.
X. The express nature of a convention renders some things unlawful
during a truce, as for instance, if it is granted only in order to bury the
dead, neither party will have a right to depart from those conditions. Thus if
a siege is suspended by a truce, and nothing more than such a suspension is
thereby granted; the besieged cannot lawfully avail himself of it, to convey
fresh supplies of troops and stores into the place. For such conventions ought
not to prove beneficial to one party, to the prejudice of the other, who grants
them. Sometimes it is stipulated that no one shall be allowed to pass to and
fro. Sometimes the prohibition extends to persons and not to goods. In which
case, if any one, in protecting his goods, hurts an enemy, the act will not
constitute a breach of the truce. For as it is lawful that either party should
defend his property, an accidental circumstance cannot be deemed an
infringement of that personal security, which was the principal object provided
for by the truce.
XI. If the faith of a truce is broken by one of the parties, the
other who is thereby injured, will undoubtedly have a right to renew
hostilities without any formal declaration. For every article in a treaty
contains an implied condition of mutual observance. Indeed we may find in
history instances of those, who have adhered to a truce-till its expiration,
notwithstanding a breach on the other side. But on the other hand there are
numerous instances of hostilities commenced against those, who have broken
their conventions: a variation, which proves that it is at the option of the
injured party to use or not to use his right of renewing war upon the breach of
XII. It is evident that, if the stipulated penalty is demanded of the
aggressor, and paid by him, the other party can no longer maintain his right of
renewing the war. For the payment of the penalty restores every thing to its
original footing. And on the other hand, a renewal of hostilities implies an
intention of the injured party to abandon the penalty, since he has had his
XIII. A truce is not broken by the acts of individuals, unless they
are sanctioned by the authority of the sovereign, which is generally supposed
to be given, where the delinquents are neither punished nor delivered up, nor
restitution is made of goods taken away.
XIV. The rights belonging to a safe-conduct are a privilege distinct
from the nature of a truce, and our interpretation of them must be guided by
the rules laid down respecting privileges.
Such a privilege, to be perfect, must be neither injurious to a third
person, nor prejudicial to the giver. There. fore in explaining the terms, in
which it is couched, a greater latitude of interpretation may be allowed,
especially where the party suing for it receives no benefit, but rather confers
one, and still more so where the advantage, accruing to the individual from
thence, redounds also to the public benefit of the state.
Therefore the literal interpretation, which the words may bear, ought to be
rejected, unless otherwise some absurdity would follow, or there is every
reason to suppose that such a literal interpretation is most conformable to the
will and intention of the parties concerned. In the same manner, on the other
hand, a greater latitude of interpretation may be allowed, in order to avoid
the same apprehended absurdity, or to comply more fully with the most urgent
and forcible conjectures respecting the will of the contracting parties.
XV. Hence we may infer that a safe-conduct, granted to SOLDIERS,
includes not only those of an INTERMEDIATE RANK, but the HIGHEST COMMANDERS.
For that is a signification strictly and properly authorised by the words
themselves, although they MAY be taken in a more LIMITED meaning. So the term
clergymen includes those of episcopal as well as those of inferior rank, and by
those serving on board a fleet, we mean not only sailors, but all persons found
there, who have taken the military oath.
XVI. Where a free passage is granted, liberty to return is evidently
implied, not from the literal force of the expressions themselves, but to avoid
the absurdity which would follow the grant of a privilege, that could never be
made use of. And by the liberty of coming and going is meant a safe passage
till the person arrives in a place of perfect security. From hence the good
faith of Alexander was impeached, who ordered those to be murdered on the way,
whom he had allowed to depart.
Any one may be allowed to go away without being allowed to return. But no
power can properly refuse admitting any one, to whom he has granted leave to
come, and on the other hand, his admission implies such a leave to have been
given. GOING AWAY and RETURNING are indeed very different, nor can any
construction of language give them the same meaning. If there be any mistake,
although it may confer no right, it exempts the party from all penalties.
— A person permitted to come shall only come ONCE, but not a SECOND TIME,
unless the additional mention of some time may supply room to think otherwise.
XVII. A son shares the fate of his father, and a wife of her husband
no farther than as to the right of residing, for men reside with their
families, but in general undertake public missions without them. Yet one or two
servants, though not expressly named, are generally understood to be included
in a safe-conduct, especially where it would be improper for the person to go
without such attendants. For every necessary consequence is understood to go
along with any privilege that is given.
XVIII. In the same manner no other effects are included in a
safe-conduct, but such as are usually taken on a journey.
XIX. The name of attendants, expressed in a safe-conduct, granted to
any one, will not allow him to extend the protection of it to men of atrocious
and criminal characters, such as pirates, robbers, and deserters. And the
COUNTRY Of the attendants being named shews that the protection cannot extend
to those of another nation.
XX. The privileges of a safe-conduct do not, in doubtful cases,
expire upon the demise of the sovereign who granted it, according to what was
said in a former part of this treatise on the nature of favours granted by
kings and sovereign princes.
XXI. It has often been a disputed point, what is meant by the
expression used in a safe-conduct, that it shall continue during the PLEASURE
OF THE GRANTOR. But there seems most reason and truth in the opinion of those,
who maintain that the privilege shall continue, till the grantor make some new
declaration of his will to the contrary. Because, in doubtful cases, a favour
is presumed to continue, till the right, which it conveys, is accomplished. But
not so, where all possibility of WILL in the grantor has ceased, which happens
by his death. For upon the death of the person all presumption of his WILL
continuing must cease: as an accident vanishes when the substance is destroyed.
XXII. The privilege of a safe-conduct protects the person, to whom it
is given, even beyond the territories of the grantor: because it is given as a
protection against the rights of war, which are not confined to his territory.
XXIII. The redemption of prisoners is much favoured, particularly
among Christian states, to whom the divine law peculiarly recommends it as a
kind of mercy. Lactantius calls the redemption of prisoners a great and
splendid office of justice.
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