CHAPTER 22: On the Faith on Those Invested With Subordinate Powers in
Commanders — Extent of their engagements in binding the sovereign
— Exceeding their commission — The opposite party bound by such
engagements — Power of commanders in war, or of magistrates with respect
to those under their authority — Generals cannot make peace, but may
conclude a truce — Extent of their authority in granting protection to
persons and property — Such engagements to be strictly interpreted —
Interpretation of capitulations accepted by generals — Precautions
necessary till the pleasure of the sovereign be known — Promise to
surrender a town.
I. ULPIAN reckons the agreements, entered into between the generals
of opposite armies during the course of a war, among public conventions. So
that after explaining the nature of the faith pledged by sovereign powers to
each other, it will be proper to make a short inquiry into the nature of
engagements made by subordinate authorities; whether those authorities bear a
near approach to supreme power, as commanders in chief, or are removed to a
greater distance from it. Caesar makes the following distinction between them,
observing that the offices of commander and deputy are very different; the
latter being obliged to act according to prescribed rules, and the former
having unqualified discretion in matters of the highest importance.
II. The engagements of those invested with such subordinate powers
are to be considered in a double point of view, whether they are binding upon
the sovereign, or on y upon themselves. The former of these points has been
already settled in a former part of this treatise, where it was shewn that a
person is bound by the measures of an agent, whom he has appointed to act in
his name, whether his intentions have been expressly named, or are only to be
gathered from the nature of the employment. For whoever gives another a
commission, gives him along with it every thing in his power that is necessary
to the execution of it. So that there are two ways, in which persons acting
with subordinate powers may bind their principals by their conduct, and that
is, by doing what is probably thought to be contained in their commission, or
apart from that, by acting according to special instructions, generally known,
at least to those, with whom they treat.
III. There are other modes too, in which a sovereign may be bound by
the previous act of his minister; but not in such a manner as to suppose the
obligation owes its EXISTENCE to that action, which only gives occasion to its
fulfilment. And there are two ways, in which this may happen, either by the
consent of the sovereign, or by the very nature of the thing itself. His
consent appears by his ratification of the act, either expressed or implied,
and that is, where a sovereign has known and suffered a thing to be done, which
can be accounted for upon no other motive but that of approval and consent.
The very nature and obligation of all contracts imply that one party is not
to gain advantage by the loss of another. Or if advantage is expected from a
contract, the contract must be fulfilled or the advantage abandoned. And in
this sense, and no other, the proverbial expression, that whatever is
beneficial is valid, is to be understood.
On the other hand a charge of injustice may fairly be brought against those,
who condemn an engagement, yet retain the advantages, which they could not have
had without it.
IV. It is necessary to repeat an observation made before, that a
sovereign, who has given a commission to another, is bound by the conduct of
that person, even though he may have acted contrary to his secret instructions,
provided he has not gone beyond the limits of his ostensible, and public
This was a principle of equity, which the Roman Praetor observed in actions
brought against employers for the conduct of their agents or factors. An
employer could not be made answerable for any act or measure of his factor, but
such as was immediately connected with the business, in which he employed him.
Nor could HE be considered as an appointed agent, with WHOM the public were
apprized, by due notice, to make no contract — If such notice was given,
without having come to the knowledge of the contracting parties, the employer
was bound by the conduct of the agent. If any one chuses to make a contract on
certain conditions, or through the intervention of a third person, it is right
and necessary for that person to observe the particular conditions on which he
From hence it follows that kings and nations are more or less bound by the
conventions of their commanders in proportion as their laws, conditions, and
customs, are more or less known. If the meaning of their intentions is not
evident, conjecture may supply the place of evidence, as it is natural to
suppose that any one employed would be invested with full powers sufficient to
execute his commission.
A person acting in a subordinate capacity, if he has exceeded the powers of
his commission will be bound to make reparation, if he cannot fulfil his
engagement, unless he is prevented from doing so by some well known law.
But if he has been guilty of treachery also, in pretending to greater powers
than he really possessed, he will be bound to repair the injury, which he has
WILFULLY done, and to suffer punishment corresponding with his offence. For the
first of these offences, his property is answerable, and on failure of that,
his personal liberty: and in the latter case, his person or property, or both
must be answerable according to the magnitude of the crime.
V. As a sovereign or his minister is always bound by every contract,
it is certain the other party will also be bound by the engagement: nor can it
be deemed imperfect. For in this respect there is a comparative equality
between sovereign and subordinate powers.
VI. It is necessary to consider too what are the powers of
subordinate authorities over those beneath them. Nor is there any doubt that a
general may bind the army, and a magistrate, the inhabitants of a place by
those actions, which are usually done by commanders, or magistrates, otherwise
their consent would be necessary.
On the other hand, in engagements purely beneficial, the advantage shall be
on the side of the inferior: for that is a condition comprehended in the very
nature of power. Where there is any burdensome condition annexed it shall not
extend beyond the usual limits in which authority is exercised; or if it does,
it shall be at the option of the inferior to accept or refuse that condition.
VII. As to the causes and consequences of a war, it is not within the
province of a general to decide them. For concluding and conducting a war are
very different things, and rest upon distinct kinds of authority.
VIII. and IX. As to granting truces, it is a power which
belongs not only to commanders in chief, but also to inferior commanders. And
they may grant them for themselves, and the forces immediately under their
command, to places which they are besieging or blockading: but they do not
thereby bind other parts of the army. Generals have no right to cede nations,
dominions, or any kind of conquests made in war. They may relinquish any thing
of which a complete conquest has not been made: for towns frequently surrender
on condition of the inhabitants being spared, and allowed to retain their
liberty and property: cases, in which there is no time for consulting the will
and pleasure of the sovereign. In the same manner, and upon the same principle
this right is allowed to subordinate commanders, if it falls within the nature
of their commission.
X. As commanders, in all such engagements, are acting in the name of
others, their resolutions must not be interpreted so strictly as to bind their
sovereigns to greater obligations than they intended to incur, nor at the same
time to prove prejudicial to the commanders themselves for having done their
XI. An absolute surrender implies that the party so capitulating
submits to the pleasure and discretion of the conqueror.
XII. In ancient conventions a precaution was usually added, that they
would be ratified, if approved of by the Roman people. So that if no
ratification ensued, the general was bound no further than to be answerable for
any advantage that might have accrued to himself.
XIII. Commanders having promised to surrender a town, may dismiss the
[Translator's note: The XXIII Chapter of the Original, on Private
Faith in War, is omitted in the translation.]