[406] CHAPTER XIX.

Of Faith between Enemies.

I. 1 WHAT is lawful in war, and to what extent, we have said, is to be considered, partly absolutely, partly with reference to antecedent promise. Having finished the former part of the subject, there remains the latter, namely the question of the faith of enemies to one another. The rule of keeping such faith inviolate, is praised by Silius Italicus, Xenophon, Aristides, Cicero.

2 Public faith, as the elder Quintilian says, makes truces between armed enemies, and preserves the rights of surrendered cities. It is the supreme tie, as he elsewhere says. So Ambrose; Augustine. In fact, those who are enemies do not cease to be men: but all men (who have the use of reason) are capable of having rights given them by promise. So Camillus in Livy.

3 Out of the common use of reason and language, arises the obligation from promise, of which we speak. Nor are we to think that, because to tell a falsehood to an enemy may either be lawful, or at least, allowable, according to the opinion of many (as stated above), that by parity of reason this may also be true of faith given. For the obligation of speaking the truth arises from a cause which was anterior to the war, and may perhaps, in some degree, be taken away by the war; but a promise of itself confers a new right. Aristotle saw this difference when he said, In speaking of Truth at present we mean Sincerity, which i opposed to Pretence; not Truth or Good Faith, which applies to contracts, for this belongs to another Virtue. Eth. Nic. IV. 13.

407 4 Pausanias says of Philip of Macedon, that he could not be called a great general, for he was in the habit of breaking his promises on every occasion. So Valerius Maximus of Annibal. The Trojans in Homer reproach themselves with having broken their oaths.

II. 1 We have above said, that we are not to accept that maxim of Cicero, that with Tyrants we have no community of intercourse, but the most entire separation; and also, a Pirate is not a regular enemy; with him we can neither have faith nor oath in common. So Seneca speaks of the society of human right being cut off with a tyrant. And from this source, flowed the error of Michael Ephesius, who, in his Commentary on Aristotle, says, that with the wife of a tyrant, adultery cannot be committed. And some of the Jewish masters, by a like error, hold this of strangers, whose marriage they reckon as nothing.

2 And yet Pompeius wound up the war of the pirates, in a great degree, by conventions, in which he promised them their lives and a settlement in which they might live without rapine. And tyrants have sometimes restored liberty to their subjects, bargaining for impunity. Cesar writes that the Roman generals treated with the bands of robbers and fugitives who were in the Pyrenean mountains: and who will say that, if a convention had been made, no obligation would have followed from it? It is true, such persons have not that special community of rule, which the law of nations has introduced between enemies, in a regular and complete war: but, inasmuch as they are men, they are under a common tie of Natural Law, as Porphyry explains; whence it follows, that conventions with them are to be observed. So Lucullus kept faith with Apollodorus, the leader of the fugitives. And Augustus paid to Crocotas the robber, when he surrendered himself, the reward which had been promised on his being taken, that faith might be kept.

III. I But let us see whether any arguments, more specious than those which Cicero gives, can be adduced against such a rule. The first reason which suggests itself is, that atrocious criminals, who are not part of any state, may be punished by any man, if we merely regard Natural Law, as we have elsewhere explained: and they who may be punished by loss of life, may be deprived of property and other rights; as Cicero rightly says. Now among other rights, is this Right bestowed by a Promise; therefore this right may be taken from him as a penalty. To this I answer, that the argument would hold, if the convention with him had been on the supposition of his not being a criminal. But when the treating with such a one has gone on with him as being such a one, we must suppose that the treaty included the remission of the penalty, so far as this matter is concerned: because, as we have elsewhere said, we must suppose such an interpretation, as provides against the whole act being null and void.

2 In Livy, Nabis well says, when Q. Flaminius objects to him his being a tyrant: With regard to that name, I can answer, that whatever I am, I am the same with whom you, T. Quintius, have made a league of 408alliance. And again: I had already done those things, whatever their character be, when you made an alliance with me. He adds, If I had changed in anything, I should have had to give account of my inconsistency; as it is, you owe an account of yours. There is a similar passage in Pericles’s speech to his citizens in Thucydides: We shall suffer the cities in alliance with us to be free, if they were so when the treaty was made.

IV. Again, it may be objected that, (as we have said already,) he who, by means of fear, caused the promise, is held to free the promiser, because he inflicted damage by injustice; that is, by an act which is at variance with the nature of human liberty, and with the nature of an act which ought to be free. But though we allow that this may sometimes hold, it does not apply to all promises made to robbers. For, that he to whom a promise has been made, should be bound to liberate the promiser, it is necessary that he should have caused the promise by unjust fear. If, then, any one have promised a payment in order to extricate a friend from captivity, he is bound by his promise; for he has not been put in fear, but comes and makes the contract of his own free will.

V. Add to this, that even he who, under the influence of unjust fear, has made a promise, may be bound if the sanction of an oath be added. For then, as we have elsewhere said, man is not bound to man only, but to God also, towards whom fear is not an exception. It is however true, that, by such a bond of itself, the heir of the promiser is not bound; because what passes to the heir is only what belongs to human commerce, from the primeval law of ownership: and the right which belongs to God, as such, is not included among such things. And moreover we must again repeat what we have said above; that if any one violate his faith given to a robber, either with or without an oath, he is not on that account liable to punishment at the hands of other nations; inasmuch as, on account of the hatred borne to robbers, nations have agreed to overlook what is done against them, even by vicious acts.

VI. What shall we say of the wars of subjects against kings and other supreme authorities? That these, even when they have a cause in itself not unjust, still have not the right of acting by force, we have shown elsewhere. But sometimes, in such cases, the injustice of the cause, or the wickedness of the resistance, may be so great, that it may be liable to heavy punishment. And yet if a treaty be conducted with persons, as with deserters or robbers, such liability cannot be opposed to the promise, as we have just said. Even to slaves, faith must be kept, according to the piety of the ancients; and it was believed that the Lacedæmonians were visited by the divine anger, because, contrary to convention, they had put to death the Tænarians, who were slaves. And it is noted by Diodorus, that faith pledged to a slave in the temple of the Palici was never violated by a master. And the exception of fear imposed, may here also be cancelled by interposing 409an oath; as M. Pomponius, tribune of the people, under the obligation of an oath, kept the promise which L. Manlius had made under fear.

VII. But beyond these difficulties a special difficulty arises from the right which the State possesses to make laws, and from its right of eminent dominion over the goods of the subjects; which rights are exercised in its name by the supreme authority. For if that right extend to all the possessions of the subjects, why should it not extend to the right arising from a promise made in war? And if this be granted, it would seem that all conventions must be of no force, and consequently, that there is no way of terminating a war but by victory. But on the other side, it is to be noted, that that eminent right does not extend to everything promiscuously, but so far as it is expedient, as a part, not of a master’s authority, but of civil or royal authority. And in general, it is expedient that such conventions should be observed; to which point pertains what we have elsewhere said, of maintaining the present state of things. Add to this, that when the case requires the exercise of this eminent dominion, compensation is to be made, as will be explained more at length below.

VIII. I Moreover, compacts may be sanctioned by oath, not only by a king or a senate, but by the state itself; as Lycurgus made the Lacedæmonians swear to observe his laws, and Solon, the Athenians, his; and that the force of the oath might not be broken down by the change of persons, the oath to be repeated every year. For if that be done, there must be no going back from the promise, not even for the sake of public utility. For the state may give up what is clearly its own, and the words may be so plain as to allow no exception. Valerius Maximus says to the Athenians, Read the Law to which you are bound by oath. The Romans called such laws leges sacratæ: and by such, the Roman people itself, as Cicero for Balbus explains, was in conscience bound.

2 There is a somewhat obscure dissertation on this subject, in the third Book of Livy, in which he says that, according to the opinion of many jurists, the tribunes were sacrosanct, but not the ediles, judges, decemvirs; though if harm was done to any of them it was unlawful. The cause of the difference is, that the ediles and others were defended by the law only; and while the law lasted, no one might act against it; but the tribunes were defended by the public religious engagement of the Roman people: for an oath had been administered, which those who had taken it could not set aside with a safe conscience. So Dionysius relates the rule established by L. Junius Brutus. And hence this law was called sacrata. And therefore good men condemned the act of Tiberius Gracchus, when he abrogated the tribuneship of Octavius; and said that the tribunitian power has its sacredness from the people, not against the people. And therefore, as we have said, a state or a king may be bound by an oath, even in the case of subjects.

IX. But also, in such a case, a valid promise may be made to a 410third person, who has not imposed fear. Nor, so far as this rule is concerned, shall we inquire closely what are the subtilties of the Roman law. For by nature, it is the interest of all men, that regard should be had so other men besides the parties. Thus when Philip made peace with the Romans, he was deprived of the power of punishing the Macedonians, who had revolted from him.

X. But also, since we have proved elsewhere, that mixed states sometimes exist; as we may pass from one pure state to another, so we may pass into a mixed state by compacts; so that they who had been subjects, may begin to have the supreme authority, or at least a part of it; and even with the liberty of defending that part by force.

XI. I A regular war, that is, one, on both sides public and declared, as it has other peculiarities which exist in external rights, so has it this; that what is promised in the course of such a war, or for the purpose of ending it, is of such validity, that it cannot be rendered void by the allegation of fear unjustly impressed, contrary to she will of the promiser. For as many other things, although not free from blame in general, are, in such a war, made lawful by the Law of Nations, so among them, is the fear which is in such a war impressd by each side upon the other. If this were not the acknowledged rule, such wars, which are very frequent, could neither be moderated nor ended; while yet it is the interest of the human race that they should be so. And this is to be understood to represent the rights of war, which, Cicero says, are to be kept with enemies; who too says elsewhere, that an enemy in war has his rights; that is, not only natural rights, but others arising from the agreement of nations.

2 But yet it does not follow from hence, that he who has extorted such promise in an unjust war can retain what he has received, with no violence to piety and the duty of a good man: nor even that he can compel the other to stand by his compacts, made with or without an oath. For internally, and by the nature of the thing, it remains unjust; and this internal injustice of the act cannot be taken away, except by a new and truly free consent.

XII. But when I say that the fear which is impressed in a regular war is bold to be just, I must be understood to speak of such fear as the Law of Nations does not condemn. For if anything be extorted by the fear of having the chastity of women violated, or by any other terror contrary to good faith, it is more true that the matter remains subject to Natural Law; for the Law of Nations does not extend its countenance to such fear.

XIII. 1 We have above said, that faith is to be kept even with the perfidious; and Ambrose teaches the same. And this is undoubtedly to be extended also to perfidious enemies; such as were the Carthaginians, to whom the Romans religiously kept their faith. The Senate looked to itself, not to those to whom the performance was made, says Valerius Maximus. And Sallust says the like.

411 2 Appian says of the faith-breaking Lusitanians, whom Sergius Galba deceived by a new convention, and so put to death, that he avenged perfidy by perfidy, and in a way contrary to the Roman dignity, imitated the barbarians. And on that ground, this Galba was afterwards brought under accusation by Libo, the tribune of the people; and then, as Valerius Maximus remarks, The question was not determined by justice but by mercy; and the acquittal which could not be given to his innocence, was granted out of regard to his children. Cato, in his Origines, had written, on this occurrence, that except he had had recourse to tears and children, he would have been condemned.

XIV. But at the same time it is to be remarked, that there are two ways in which the promiser may be blameless of perfidy, though he does not perform what he had promised; namely, by defect of the condition, and by compensation.

By defect of condition, the promiser is not truly liberated from a promise, but the event shews that there was no obligation, since it was contracted only under the condition. And to this head is to be referred the case in which the other party has not fulfilled what, on his part, he was bound to fulfil. For in a contract of that kind, each article implies the others in the way of condition; as if it had been expressed by saying, I will do so and so if the other does what he has promised. So Tullus, answering the Albans, says that he calls the gods to witness that, Whichever people shall first reject and dismiss the ambassadors who come and ask for restitution, on it shall fall all the calamities of the war. Ulpian says, He is not to be held as an ally who renounced the treaty because some condition on which the alliance was agreed to was not performed. On this account, if the intention of the treaty be different from this, it is usually clearly expressed, that if anything be done contrary to this or that part, the other parts still remain valid.

XV. Compensation, as to its origin, we have elsewhere explained; when we said that if there be anything which is ours, or which is owing to us, and which we cannot otherwise obtain from him who has it, or owes it, we may take a thing of equal value in any other shape. From whence it follows, that we may, still more, retain what we have in our hands, whether corporeal or incorporeal. Therefore, that which we have promised, we may be excused from giving, if it be not of more value than our property which is unjustly detained by another. Seneca says, So the creditor is often brought in debtor to his debtor, when he has taken away more in another shape than he seeks as a debt. The judge does not merely look at the single debt; but says, You lent him money; what then? you have plate* of his which you never paid for. Let a balance be struck, and you go away as a debtor, who came as a creditor.

XVI. The same will be the case, if he with whom the question is, owes me more, or as much, from another contract, and I cannot 412get it any other way. In the court of justice indeed, as Seneca also says, actions at law are kept separate, and the mode of claiming one and the other are not mixed together. But such examples, as he there explains, are limited by certain rules, which it is necessary to follow. We must go the way the law points. But the Law of Nations does not acknowledge those distinctions, that is, when there is no other hope of getting our own.

XVII. The same must be said, if he who urges our promise has not made a contract with us, but has inflicted a damage upon us. So Seneca, in the same place, Thelandowner is not to have the right of binding the farmer to him, even if the agreement be uncancelled, if he trample down his corn, if he cut down the plants; not because he has received what he agreed for, but because he has himself been the means of his not receiving it. And he adds other examples: You have driven of his cattle, you have killed his slave. And then: Let me compare what benefit any one has produced me, and what harm, and then pronounce whether more is owing to me or from me.

XVIII. Finally, that which is due as penalty may be balanced against that which has been promised, which is explained at length in the same place, thus: Benefit demands recompense; injury, satisfaction; where both occur, I neither owe him recompense, nor he me satisfaction. We are quits with one another. Balancing the benefit and the injury, I shall see whether anything more is due to me.

XIX. 1 But, as in the case where any agreement has been made between the two parties to a lawsuit, they cannot, during the suit, set against what was promised, either the original ground of action, or the loss and expense of the suit; so while the war goes on, we cannot bring into the balance, either the original ground of the war, or anything which has resulted from the exercise of the usual belligerent rights. For the nature of the business shews that the convention, in order that it may not be without any effect, must have been made setting aside the controversies belonging to the war itself. For otherwise there could be no convention which might not be eluded. To this we may apply a passage of Seneca: [which however is not very closely to the purpose. W.]

2 What then are the matters, which may be balanced against that which was promised? This for instance; if the other, though from another contract, made during the war, owes us a debt; or if he have committed damage during a time of truce; or if he have violated the rights of ambassadors; or done anything else which the Law of Nations condemns as between enemies.

3 But it is to be observed, that compensation must take place between the same persons who are so bound to each other, and so that the right of a third party be not injured; but still, so that the goods of subjects are understood to be bound for what the state owes, as we have elsewhere said.

4 We must add this also; that it is the part of a generous mind 413to stand to agreements, even after an injury has been received; on which grounds Iarchas, the wise Indian, praised a king who, having been injured by a neighbour who was under league to him, did not swerve from the faith which he had sworn, saying that he had sworn so solemnly that he could not hurt the other even after receiving the injury.

5 The questions which commonly occur with regard to keeping faith with enemies, may almost all be solved, by applying the rules given above, concerning the force, both of promises in general, and of oaths in particular, the effect of conventions and securities, the rights and obligations of kings, and the interpretation of ambiguities. But that the use of what has been said may be the more manifest, and that, if there be any remaining controversies, they may be discussed, we shall not hesitate to take the trouble of touching upon the more frequent and more celebrated of special questions.