On Faith During the Continuance of WarJuly 29, 2022
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 law.
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, it404 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 prolongation405 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 that406 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 Thucydides, 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 heads407 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 a truce.
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 the408 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 option.
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. Therefore 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 never409 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, till410 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.