On the Faith on Those Invested with Subordinate Powers in WarJuly 29, 2022
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 only 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, and412 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 commission.
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 apprised, 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 necessary413 for that person to observe the particular conditions on which he is employed.
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.414 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 duty.
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 garrison.
CHAPTER XXIV.81 On Tacit Faith.
Tacit faith—Example of in desiring to be taken under the protection of a king or nation—Implied in the demand or grant of a conference—Allowable for the party seeking it to promote his own interest thereby provided he uses no treachery—Meaning of mute signs allowed by custom.
I. Both public, private, and mixed, conventions admit of tacit consent, which is allowed by custom. For in whatever manner consent is indicated and accepted it has the power of conveying a right. And, as it has been frequently observed in the course of this treatise, there are other signs of consent besides words and letters: some of them indeed naturally rising out of the action itself.
II. An example of such tacit agreement may be found in the case of a person coming from an enemy, or foreign country, and surrendering himself to the good faith of another king or people. For such a one tacitly binds himself to do nothing injurious or treacherous to that state, where he seeks protection, a point which is beyond all doubt.
III. In the same manner, a person who grants or requests a conference, gives a tacit promise, that he will do nothing prejudicial to the parties, who attend it. Livy pronounces an injury done to an enemy, under the pretext of holding a conference, a violation of the law of nations.
IV. But such a tacit promise, to take no advantage of a parley or conference, is not to be carried farther than what has been said. Provided all injury and injustice are avoided, it is reckoned a lawful stratagem, for any one to avail himself of a parley in order to draw off the enemy’s attention from his military projects, and to promote his own. The device, by which Asdrubal extricated his army from the Ausetanian forests, was of this kind, and by the same means Scipio Africanus, the elder, gained a perfect416 knowledge of Syphax’s camp. Both these circumstances are related by Livy.
V. There are certain mute signs, deriving all their force and meaning from custom; such as the fillets, and branches of olive formerly used: among the Macedonians pikes erected, and among the Romans shields placed upon the head, were signs of a suppliant surrender obliging the party to lay down his arms. In the present day a white flag is a sign of suing for a parley. Therefore all these methods have the force of express declarations.
CHAPTER XXV. Conclusion.
Admonitions to the observance of good faith—Peace always to be kept in view in the midst of war—Peace beneficial to the conquered—To the conqueror—And to be chosen in cases where the issue is doubtful—To be religiously observed—Prayer—Conclusion of the work.
I. Here seems to be the proper place to bring this work to a conclusion, without in the least presuming that every thing has been said, which might be said on the subject: but sufficient has been produced to lay a foundation, on which another, if he pleases, may raise a more noble and extensive edifice, an addition and improvement that will provoke no jealousy, but rather be entitled to thanks.
Before entirely dismissing the subject, it may be necessary to observe, that, as in laying down the true motives and causes, that alone will justify war, every possible precaution at the same time was taken to state the reasons for which it should be avoided; so now a few admonitions will not be deemed superfluous, in order to point out the means of preserving good faith in war, and maintaining peace, after war is brought to a termination, and among other reasons for preserving good faith the desire of keeping alive the hope of peace, even in the midst of war, is not the least important. For good faith, in the language of Cicero, is not only the principal hold by which all governments are bound together, but is the key-stone by which the larger society of nations is united. Destroy this, says Aristotle, and you destroy the intercourse of mankind.
In every other branch of justice there is something of obscurity, but the bond of faith is clear in itself, and is used indeed to do away the obscurity of all transactions. The observance of this is a matter of conscience with all lawful kings and sovereign princes, and is the basis of that reputation by which the honour and dignity of their crowns are maintained with foreign nations.
II. In the very heat of war the greatest security and expectation of divine support must be in the unabated418 desire, and invariable prospect of peace, as the only end for which hostilities can be lawfully begun. So that in the prosecution of war we must never carry the rage of it so far, as to unlearn the nature and dispositions of men.
III. These and these alone would be sufficient motives for the termination of war, and the cultivation of peace. But apart from all considerations of humanity, the INTERESTS of mankind would inevitably lead us to the same point. In the first place it is dangerous to prolong a contest with a more powerful enemy. In such a case some sacrifices should be made for the sake of peace, as in a storm goods are sometimes thrown overboard to prevent a greater calamity, and to save the vessel and the crew.
IV. Even for the stronger party, when flushed with victory, peace is a safer expedient, than the most extensive successes. For there is the boldness of despair to be apprehended from a vanquished enemy, dangerous as the bite of a ferocious animal in the pangs of death.
V. If indeed both parties are upon an equal footing, it is the opinion of Caesar, that it is the most favourable moment for making peace, when each party has confidence in itself.
VI. On whatever terms peace is made, it must be absolutely kept. From the sacredness of the faith pledged in the engagement, and every thing must be cautiously avoided, not only savouring of treachery, but that may tend to awaken and inflame animosity. For what Cicero has said of private friendships may with equal propriety be applied to public engagements of this kind, which are all to be religiously and faithfully observed, especially where war and enmity have ended in peace and reconciliation.
VII. And may God, to whom alone it belongs to dispose the affections and desires of sovereign princes and kings, inscribe these principles upon their hearts and minds, that they may always remember that the noblest office, in which man can be engaged, is the government of men, who are the principal objects of the divine care.