[414] CHAPTER XX.

Of the public Faith by which Wars are terminated; and herein, of Treaties of Peace; of Lot; of Combat by Agreement; of Arbitration; of Surrender; of Hostages; and of Pledges.

I. CONVENTIONS between enemies depend either on express engagements, or on tacit ones. An express engagement is either public or private. A public engagement is either one made by the supreme powers, or by inferior powers. An engagement made by the superior powers either puts an end to the war, or is of force while the war goes on. In those which end the war, we are to look at the principal matters, and at the accessories. The principal pacts are those which end the war either by their own act, as convention, or by consent having reference thereto, as lot, the event of a combat, the decision of an arbiter: of which the first is merely casual; the other two, temper chance with the powers of the body or the mind, or with the exercise of judgment.

II. To make conventions which terminate the war, is the office of those who make the war; for each person is the manager of his own affairs. Whence it follows, that in a war public on both sides, this is the office of those who have the right to exercise supreme authority. In a monarchical state, it is therefore the office of the monarch, provided he be a monarch who has a right not impeded in such acts.

III. 1 For a king who is not of the age which implies maturity of judgment, (which age is, in some kingdoms, defined by law, in others, is to be estimated by probable conjecture,) or who is of weak intellect, cannot make peace. The same is to be said of a king in captivity, provided he received his sovereignty from the people; for it is not to be supposed that they would bestow the power, to be used by a person who was not free. Hence, in this case, the sovereignty, not indeed as to its whole rights, but as far as exercise and guardianship, will be with the people, or him to whom the people commits it.

2 But as to things which belong to himself, if a king, even in captivity, make any compact, it will be valid, according to the example of private conventions, of which we have spoken. But if the king be an 416exile, can he make peace? Yes, if he is under no constraint; other­wise, his condition differs little from that of a captive: for the custody of a captive is often lax. Regulus refused to deliver his opinion in the Senate, saying that so long as he was under an oath to the enemy, he was not a senator.

IV. In an aristocratical or democratical state, the right of making treaties will be with the majority, respectively, of the Council, and of the Assembly of citizens who have a vote, as we have elsewhere said. Therefore conventions so made, bind them also who dissented. So Livy; Dionysius; Appian; Pliny. And those who are bound by the peace, also may share its advantages.

V. 1 Let us now consider what things may be the subjects of convention. The royal authority, or any part of it, cannot be alienated by convention by kings, such as most kings now are, having their authority not as a patrimony, but as a life estate. Indeed before they received the royal authority, at which time the people was superior to them, there might have been a law made to render such acts invalid in all future time, so that they should not produce any obligation at all, even for compensation for non-fulfilment. And it is to be believed that the people intended this; since, if the action was valid to the contractor for compensation, the goods of the subjects might be taken for the debt of the king; and thus, the provision against alienating the royal authority might be defeated.

2 Therefore, that the whole royal authority may pass in a valid manner, it is necessary to have the consent of the whole people; which may be effected by the representatives of different classes, whom they call the Orders or the Estates of the realm. That any part of the empire may be alienated, there is need for a double consent; both of the general body, and of that special part which is under question; since it cannot, without its own good-will, be separated from the body of which it was a part. But the part itself may transfer to itself the sovereign authority, without the consent of the people, in an extreme and otherwise inevitable necessity; because it is to be supposed that that power was excepted from the compact in such a case, when civil society was formed.

3 But in patrimonial kingdoms, there is nothing which prevents the king alienating his kingdom. Still, it may be, that such a king has not power to alienate any part of the empire; namely, if he had received the kingdom as his property, with the onus of not dividing it. As to the valuables which are called the Property of the Crown, they may come into the king’s patrimony in two ways; either separably, or inseparably with the kingdom itself. If in the latter mode, they may be transferred, but only with the kingdom; if in the former, they may be transferred separately.

4 As to kings whose kingdom is not patrimonial, they can hardly have the right of alienating the property of the crown; except it appear plainly to be so, from a primeval law or uncontradicted custom

417 VI. How far the king’s successors, and the people, are bound by his promise, we have also stated elsewhere; namely, so far as the power of so obliging was included in the royal authority; which is neither to be infinitely extended, nor too much narrowed; but regulated by fair reasons. It is plainly another matter, if the king be the absolute master of his subjects, and have received a domestic rather than civil authority; as in the case of those who reduce a conquered people to slavery; or if, without having such dominion over their persons, they have it over their goods; as Pharaoh king of Egypt, by purchase; and others, who have received new comers into their private property. For here, another kind of right, added to the regal rights, produces a result which the regal rights of themselves could not produce.

VII. 1 This is also a common question; what may be done for the sake of peace, with the goods of individuals, by kings who have no other right over the property of subjects than the regal right. We have elsewhere said, that the property of subjects is under the eminent dominion of the state; so that the state, or he who acts for it, may use, and even alienate and destroy such property; not only in case of extreme necessity, in which even private persons have a right over the property of others; but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way.

2 But it is to be added, that when this is done, the state is bound to make good the loss to those who lose their property; and to this public purpose, among others, he who has suffered the loss must, if need be, contribute. Nor is the state relieved from this onus, if, for the present, it be unable to discharge it; but at any future time, when the means are there, the obligation which had been suspended revives.

VIII. Nor do I admit, without distinction, what Vasquius says; that the state is not bound to acknowledge the damage which is inflicted by war, because the right of war permits such damage. For that right of war has regard to other peoples, as we have elsewhere explained; and, partly at least, affects enemies in their mutual relations, not citizens in theirs; for since these are socially bound together, it is just that they bear in common the losses which happen for the sake of society. It may however be established by the Civil Law, that a thing lost in war shall not give a citizen a right of recovery against the State; in order that each person may the more strenuously defend his own property.

IX. There are some writers who make a broad distinction between things which belong to the citizens by the Law of Nations, and things which belong to them by the Civil Law: so that with regard to the former, they allow a looser right to the king, so that he may take them without cause and without compensation; but not so with regard to the latter. Wrongly. For ownership, from whatever cause it 418arises, has always its effects by Natural Law; in so far that it cannot be taken away, except either from causes which belong to the very nature of ownership, or arise out of the act of the owners.

X. But this consideration, that the property of private parties is not to be given up, except on the ground of public utility, regards the king and his subjects; the other consideration, respecting compensation for loss, regards the state and individuals. For as regards strangers who contract with the king, the act of the king is sufficient; not only on account of the presumption of due authority which the dignity of the person implies; but also from the Law of Nations, which allows the goods of subjects to be bound by the act of the king.

XI. 1 With regard to the interpretation of conventions of peace, we must observe what has been delivered above that; in proportion as any condition is more favourable, it is to be taken more loosely: in proportion as it is the contrary, more restrictedly. If we regard mere Natural Law, the most favourable condition seems to be, that each shall obtain his own: and therefore the interpretation of doubtful expressions is to be drawn to that sense; that he who has taken up arms justly, shall obtain that for which he went to war, and recover his losses and expenses; but not that he shall obtain anything under the plea of penalty; for that is more odious.

2 But since parties will hardly come to peace by one side confessing to being in the wrong, therefore that interpretation is to be taken which puts the parties, as much as possible, on an equality with respect to the justice of the war. And this is done mainly in two ways; either that the possession which has been disturbed by war should be restored, as expressed by the formula in statu quo ants bellum; or that matters remain as they are, which is expressed by uti possidetis.

XII. I Of those two rules, the latter is, in a doubtful case, to be preferred, as being the easier, and inducing no change. Hence the rule of Tryphoninus; that in peace, those prisoners only shall have postliminium for whom such a compact was made; which, as we have shewn above, is the true reading. And thus, deserters are not to be given up, except this be agreed upon; for we receive deserters by the laws of war: that is, by the laws of war it is lawful for us to admit and enrol in our numbers him who changes his side. Other things, on such agreement, remain with the person who is in possession.

2 But this possession is taken not according to Civil but to Natural Law; for in war, the fact of possession suffices, and nothing else is attended to. And we speak of lands, as in possession, if they are protected by fortifications; for a temporary occupation, or an encampment, is not here regarded. Demosthenes says that Philip made haste to occupy what places he could, knowing that when peace was made, he would keep what he held. Incorporeal possessions are not held, except by means of the thing to which they adhere; as the servitudes of lands; or by the persons to whom they belong, provided they are 419not such as are to be exercised in the soil which had been the enemy’s; [for then they go with the soil].

XIII. In the other kind of pacification, the status quo ante bellum, it is to be noted that the last possession which preceded the war is meant; but in such a way, that private encroachments are to be set aside by an order of court, or sentence of a judge, when it can be had.

XIV. But if any people, which is its own master, has, of its own free will, subjected itself to one of the belligerent parties, the restitution is not to be extended to it, since the restitution applies to those things which are done by force or fear, or by some stratagem lawful towards an enemy. So when the Greeks made peace, the Thebans retained Platæa; saying, that they had not taken it by force, nor by treachery, but by the free will of those whose it was. And on the like grounds, Nisæa remained in the possession of the Athenians. T. Quinctius used the like distinction towards the Etolians, saying, that this was the law of captured cities: the Thessalian cities have by their own will come under our authority.

XV. If no other convention is made, in every war it is to be supposed to be settled, that the losses which have been caused by the war are not liable to be recovered. And this is to be understood also of losses to private persons; for these are the effects of war. For in a doubtful matter, the contracting belligerent parties are to be supposed to have intended that neither should be condemned as unjust.

XVI. But debts which were due to private persons at the time of the war breaking out, are not to be supposed cancelled; for these are not acquired by the right of war, but only prevented by war from being exacted. And therefore, when the impediment is removed, they retain their force. But though the right which existed before the war, is not lightly to be supposed to be taken from any one, (for on this account mainly were states established, that each person might have his own, as Cicero rightly says), yet this is to be understood of rights which result from an inequality which requires to be balanced.

XVII. Not therefore of a public right to a penalty. For that right, as far as it concerns the relations of kings and peoples, must be conceived to be remitted, on this account; that a peace will be no peace, if the old causes of war are left standing. And here, demands which were not known of, will be included in the general words: as with respect to the Roman merchants who had been drowned by the Carthaginians, without the Romans knowing it. The best pacifications are those which obliterate anger and the memory of offenses, as Dionysius says. So Isocrates.

XVIII. The rights of private persons to a penalty, do not offer the same reason for being supposed to be remitted; because they might be exacted without the arbitrament of war. But still, since this right is not ours in the same way as one which arises from an inequality, and punishment has always in it something odious, a slight impli420cation of words will suffice to make it understood that such penalties also are to be remitted.

XIX. What we have said, that the right which existed before the war is not lightly to be supposed to be taken away, is to be firmly held with regard to the rights of private persons. In the rights of kings and peoples, we may more easily suppose some condonation to take place, if there be any words, or fair conjecture, to countenance the suppositions: and this especially, if the right in question be not clear, but controverted. For it is gracious to suppose that to have been done, which plucks up the seeds of war. So Dionysius Halicarnassus, whose concluding words are nearly taken from Isocrates in his oration on the Peace.

XX. What is taken after the treaty is made, is to be restored; for the right of war was previously extinguished.

XXI. In agreements concerning the restitution of captures made in war, in the first place, those articles are to be interpreted more widely, which are mutual, than those which are one-sided; in the next place, those which treat concerning men are to be taken more favourably than those concerning things; and amongst those concerning things, those concerning lands, more favourably than those concerning moveables; and those concerning things in public possession, more favourably than those which are in private; and among those which are in private possession, those which direct the restitution of things possessed by a lucrative title, more favourably than by an onerous title; and those which have been acquired by purchase, more favourably than those by donation.

XXII. If a possession is conceded to any one in a pacification, there are conceded to him the fruits of the possession from the time of concession, but not backwards; a rule which Augustus rightly defends against Pompeius; who, when Peloponnesus was granted to him, claimed, at the same time, the tribute which was due for the years which had elapsed.

XXIII. The names of countries (provinces and the like) are to be taken according to the use of the present time; and the use of the learned, rather than of the vulgar; for those matters are commonly treated by learned men.

XXIV. These rules also are often applicable:—that as often as reference is made to an antecedent or ancient convention, so often the qualities or conditions expressed in the former convention are to be understood as being repeated;—and that a party is to be understood as having done what he wished to do, if his not doing it was occasioned by the other party with whom the controversy is.

XXV. What some say, that for a short time an excuse for delay is to be admitted, is not true, except an unforeseen necessity prevents the fulfilment. That some canons favour such excuses is not surprizing, since it is their office to move Christians to such courses as are suitable to mutual charity. But in this question concerning the 421interpretation of conventions, we do not now require what is best, nor even what religion and piety demand of each party; but what he can be compelled to: and the whole of this question belongs to what we call external right.

XXVI. In a doubtful sense, the interpretation is rather to be made against the party which drew up the conditions, which is commonly the more powerful party; (as Annibal says, He who gives, not he who asks, must prescribe conditions of peace:) as in a sale, the interpretation is against the seller; for he has himself to blame for not speaking more plainly: and the other party, if there are several senses to an expression, may fairly receive it in the way most useful to himself. Aristotle says, Where there is a friendship for the sake of utility, the utility of him who receives the advantage is the measure of what is due.

XXVII. Also the dispute constantly occurs, When a peace is to be supposed to be broken: for which occasion the Greeks have a special name; for it is not the same thing to give a new occasion to war, and to break the peace. There is a great difference between the two, both as to the penalty incurred by the transgressor, and as to relieving from his engagements the other party. Peace is broken in three ways: either by acting against rules which are involved in every peace; or against that which was distinctly said in this peace; or against that which ought to be understood from the nature of each peace.

XXVIII. A person acts against rules involved in every peace, if he use warlike force; that is, no new cause having arisen. If such a cause can be alleged with probability, it is better to presume that the injustice was committed without perfidy, than with it. (Thucydides says, They break the peace not who resist force, but who use force).

This being laid down, we must see by whom, and to whom, force employed breaks the peace.

XXIX. If those who have been allies in the war do anything of the sort, the peace is held by some writers to be broken. Nor do I deny that it may be agreed that it shall be so: not, properly, that one person shall be liable to penalty for another person’s act; but under a condition of the peace, partly potestative and partly casual. But a peace ought not to be assumed to be made in this way, except it manifestly appear; for such an interpretation is irregular and contrary to the common intention of those who make the peace. Therefore if any have used force, the others not helping them, against them there is a right of war, but not against the others. This is contrary to what the Thebans said against the allies of the Lacedæmonians on a certain occasion. (Paus. ix. 1.)

XXX. If subjects do anything by armed force without public command, it will have to be seen whether the private act can be said to be publicly approved. And to this, three things are requisite, knowledge, power of punishing, and neglect; as may appear from what we have already said. Knowledge is proved by the facts being mani422fest, or being denounced. Power is presumed, except some reason for its defect appears. Neglect is proved by the lapse of such a time as, in each state, is commonly taken for punishing offenses. And such neglect is equivalent to a positive decree; as Agrippa says in Josephus, that the Parthian king will think that peace is broken, if his subjects proceed in arms against the Romans [without being restrained by him.]

XXXI. It is often made a question, whether this holds, if the subjects of any sovereign do not take arms on their own account, but act in military service under others who are making war. Undoubtedly the Cerites in Livy excuse themselves, by saying that their citizens had joined the army by no public act: and the same defense was alleged by the Rhodians. And the better opinion is, that such service is not permitted, except it appear by probable arguments that some other line was agreed on as we sometimes see in our days; [that persons of another country serve in armies which are carrying on war;] following the example of the old Etolians, who took service and gathered booty on both sides in any war, as Polybius and Livy say. In former times, the Etruscans, though they would not send aid to the Veientes, did not prevent any of their young men going as volunteers to the war.

XXXII. 1 Again, the peace must be supposed to be broken, if armed force be used, not only against the general body of the state, but against its subjects; that is, without new cause. For peace is concluded, that all the subjects maybe in safety: peace is the act of the state for the whole and for the parts. And even if a new cause do arise, it will be lawful, notwithstanding the peace, for the persons attacked to defend themselves and their property. For it is natural, as Cassius says, to repel arms by arms: and therefore we are not readily to believe that this right is abdicated between equals. But in such case, to exercise vindictive acts, or to recover by force what has been taken away, will not be lawful, except after judgment has been denied. For satisfaction and recovery admit of delay, but self-defense does not.

2 But if there be any portion of the subjects, whose malpractices are so perpetual, and so contrary to the laws of nations, that what they do, they must by all means be supposed to do contrary to the approval of their rulers; and if they cannot be called before a proper tribunal, as for instance, Pirates; from them it is lawful to exact satisfaction, and to recover property, as from persons surrendered to us. But to attack other innocent persons on that ground, is a breaking of the peace.

XXXIII. 1 Also armed force, exerted against allies, breaks the peace: but against those allies only who are comprehended in the peace, as we shewed in examining the Saguntine controversy. So the Corinthians urge, We all have sworn to you all. But if the allies themselves have not made the treaty, but others for them, the same rule 423must be laid down, as soon as it appears that those allies hold the peace to be good. For so long as this is uncertain, they are to be considered as enemies.

2 With regard to other allies, and other parties, in any way related to the principals, but who are neither subjects, nor nominated in the peace, the case is different; nor can force used towards them be regarded as an infraction of the peace. But still, it does not follow, as we have also said before, that war may not be undertaken on that ground; but that will be a war from a new cause.

XXXIV. The peace is broken, as we have said, by doing against that which is set down in the peace: but under doing we include, not doing what we ought, and when we ought.

XXXV. Nor can I admit the distinction of articles of peace, of greater, and of less importance. For everything which is put in the treaty is of importance enough to be kept. But yet goodness, and especially Christian goodness, will the more readily pardon the lighter faults, especially if there be penitence for them. But in order the better to provide for the permanence of the peace, it may be added to the less important articles, that if anything is done against them, the peace is not broken: so that arbitration is to be had recourse to, rather than arms; which was the case in the Peloponnesian league, as Thucydides relates.

XXXVI. And I conceive that this must be understood to be settled, if any special penalty be added: not that I am ignorant, that a contract may be made, on this condition, that it shall be at the election of him who receives injury, whether he will have the penalty, or will recede from the transaction; but that the nature of the business rather requires what I have stated. It is apparent, however, and has already been said by us, that he does not break the peace, who does not stand by covenants made simply [that is, without a penalty,] when the other party has set him the example. For he was only bound conditionally.

XXXVII. But if any necessity be the cause why one party has not fulfilled what was promised; for instance, if the thing demanded have perished, or been taken away, or the act have become impossible by any event; the peace indeed shall not be broken; for, as we have said, it does not commonly depend on a casual condition. But the other party must have the option, whether he will rather wait, if there be any hope that the promise can be fulfilled at a later period; or receive the estimated value of his loss; or be liberated by mutual concessions corresponding to that article, or of the like value.

XXXVIII. Undoubtedly even after faith has been violated, it is open to the blameless party to observe the peace; as Scipio did, after many perfidious acts of the Carthaginians; because no one, by acting against his obligation, exempts himself from his obligation: and if it be added in the treaty, that in such a case the peace is to be under424stood to be broken, this is to be supposed added only for the benefit of the innocent party, if he choose to use the liberty given.

XXXIX. Lastly, we have said that the peace is broken, by doing that which the special nature of the peace repudiates.

XL. 1 Thus, acts which are against friendship, break a peace which was contracted under the law of friendship: for what, between others, the office of friendship only would require, is here also to be performed by the covenanted right. And to this case, but not to every peace whatever, (for there are leagues not for the sake of friendship, as Pomponius teaches us,) I refer many discussions which occur in lawyers, about injuries not by arms, and insults, and the like; and especially that of Cicero: After the return into goodwill, if any wrong is committed, that must be considered, not as a neglect but as a violation, and assigned not to oversight but to perfidy. But here also we must divest the fact of an odious character as much as possible.

2 And hence an injury done to a person connected with or subject to another, shall not be supposed to be done to him with whom the peace was made, except it be openly done to insult him. And this rule of natural equity is followed by the Roman laws, in weighty injuries done to another person’s servants: so that adultery or violation shall be imputed rather to lust than to enmity: and the seizure of another person’s goods rather constitutes an act of new cupidity, than of broken faith.

3 Atrocious threats, without any new cause preceding, are at variance with friendship: and to this head I refer fortresses built on the border of a territory, for the sake, not of defense but of offense; and unusual raising of troops, if it appear, by sufficient indications, that those are intended against the person with whom peace was made.

XLI. 1 It is not against friendship to receive individual subjects, who wish to migrate from the authority of one party to that of the other. For such liberty is not only natural, but advantageous also, as we have elsewhere said (B. II. Ch. v. § 24. No. 3). Under the same head, I place refuge granted to exiles. For, as we have before said, the state has no right over exiles. So Perseus in Livy; and Aristides says, It is the common right of men to receive exiles.

2 Towns, or large bodies of men, which make an integral part of a state, it is not lawful to receive, as we have elsewhere said: nor those who, under an oath or otherwise, owe ministerial offices or obedience. With regard to those who are slaves by the fortune of war, the same rule has been introduced by the Law of Nations, among some peoples, as we have said. Concerning the extradition of those who, not being exiled, fly from just punishment, we have spoken elsewhere.

XLII. The practice of submitting the event of the war to the result of Lot, cannot always be lawfully adopted; but then only, when the matter in question is one over which we have plenary dominion. For the state is bound to defend the life, chastity, and like possessions 425of its subjects, and the sovereign, to defend the good of the state, by ties too close, to allow him to pass by those reasons which are most natural, for the defense of himself and others. But if, in a reasonable estimation, he who is attacked in an unjust war is so far inferior that there be no hope of resisting, it seems that the chance of Lot may be offered, that he may avoid a certain danger by an uncertain one: for this is the less of the evils.

XLIII. 1 Then follows a much agitated question, concerning Combats agreed upon to take place between a definite number, for the sake of ending the war; for example, between one on each side, as Eneas and Turnus, Menelaus and Paris; between two on each side, as between the Etolians and the Eleans; [a mistake, J. B.] between three on each side, as the Horatii for Rome, and the Curiatii for Alba; between three hundred on each side, as between the Lacedæmonians and Argives.

2 If we only look at the external Law of Nations, it is not to be doubted that by it, of itself, such combats are lawful; for that law permits the killing of all the enemy without distinction. And if the opinion of the old Greeks, Romans, and other nations were true, that each person is supreme master of his own life, then also internal justice would not be wanting in such combats. But we have already said, more than once, that this opinion is at variance with right reason and the precepts of God. That he sins against the love of his neighbour, who kills a man in order to keep things which he can afford to go without, we have elsewhere shewn, both by reason and by the authority of the sacred writings.

3 We have now to add, that he sins against himself and against God, who holds cheap the life that was given him by God as a great boon. If a matter worthy of a war be at stake, as the safety of many innocent persons, for it we must contend with all our powers. To have recourse to a set combat, as a testimony of a good cause, or an instrument of divine justice, is a vain fancy, and foreign to true piety.

4 There is one circumstance, which may render such a combat just and pious on one side only; if otherwise it is to be confidently expected that he who maintains an unjust cause, will be victorious with a great slaughter of innocent persons. For there is then no blame imputable to him who, in such a case, prefers the combat which gives him the best hope which is to be had. But this also is true, that some things which may be done without blame, cannot without blame be approved by others; though they may be permitted that graver evils, which cannot otherwise be avoided, may be avoided: as in many cases, usury and prostitution are tolerated.

5 Therefore what we have said above, when we spoke of preventing war; that if two persons between whom lies the dispute concerning a kingdom, are ready to fight it out in a combat, the people may allow it to be so decided, that the greater calamity which otherwise impends may be avoided; may be said here also, when the question is 426about terminating the war. In this way, Cyrus challenged the Assyrian king: and in Dionysius, Metius says that it would not have been unjust, that the leaders of the two peoples should themselves decide the matter by a combat, if the controversy were concerning their own power or dignity, and not that of the peoples. So we read that Heraclius the emperor fought Cosroes, the son of the king of the Persians, in a single combat.

XLIV. But they who thus set the issue of the dispute on the result of a combat, may indeed forfeit their own night, if they have any, but they cannot so give to another what they themselves have not, in those kingdoms which are not patrimonial. Therefore that such a covenant may be valid, it is necessary that there should be obtained also the consent, both of the people, and of those who are in existence, who have a right to the succession: and, in fiefs which are not free, the consent also of the lord or seignior of the fief.

XLV. 1 In such combats, it is often a question which party is to be esteemed the conqueror. A party can be reckoned vanquished, only when either all its combatants have fallen, or have been put to flight. In Livy it is a mark of being conquered, when the party are driven into their own boundaries or towns.

2 In the three great historians, Herodotus, Thucydides, and Polybius, there are three controversies concerning victory; of which the first refers to a set combat. But if any one examines well, he will find that in all the three, the parties separated without a real victory. The Argives, in Herodotus, were not put to flight by Othryades, but went away on night coming on, thinking themselves victorious, and carried that news to their friends. Nor did the Corcyreans in Thucydides put to flight the Corinthians; but the Corinthians, when they had carried on the combat successfully, seeing the fleet of the Athenians approach in force, retreated without trying their strength with it. In Polybius, Philip of Macedon took indeed the ship of Attalus when it had been deserted by its crew, but was very far from having put to flight his fleet; and therefore, as Polybius says, he rather bore himself as victor, than thought himself victorious.

3 Those proceedings, of collecting the spoils, granting the bodies of the dead for sepulture, provoking the adversary to renew the battle, which, in the places just quoted, and in Livy, you sometimes find put forwards as signs of victory, of themselves prove nothing; except so far as they go along with other indications to prove the flight of the enemy. Certainly he who has left the field may, in a case of doubt, be supposed to have run away. But when there is no clear proof of victory, the matter remains in the condition in which it was before the battle; and recourse must be had either to war, or to new agreements.

XLVI. 1 Of Arbitrations there are two kinds, as Proculus teaches us: one, in which, whether the decision is just or unjust, we must submit to it; which is the rule, he says, when we come to arbitration by 429a compromise; another, in which the matter is reduced to the decision of a fair man. Of this we have an example in the response of Celsus. If a freedman, he says, has sworn to give as many days’ work as his master shall judge right, the master’s decision is not valid except he judge fairly. But this mode of interpreting an oath, though it may be introduced by the Roman laws, is not in agreement with the simple meaning of the words. Still it is true that an arbitrator may be taken in two different ways, either as a mediator only, as we read that the Athenians were between the Rhodians and Demetrius; or as one whose decision is to be absolutely obeyed. And this latter is the kind of which we here speak, and of which we have already said somewhat, when we spoke of the means of obviating war.

2 For although, with regard to arbiters who are referred to by compromise, the Civil Law may direct, and does in some places direct, that it shall be lawful to appeal from them, and to complain of their wrong; this cannot have place between kings and peoples. For in their case, there is no superior power, which can either bar or break the tie of the promise. And therefore they must stand by the decision, whether it be just or unjust; so that, as Pliny says, When you choose a person your umpire, you make him your supreme judge. For the discussion of the office of an arbiter is one thing, and that of the duty of persons who make a compromise is another.

XLVII. 1 In considering the office of an arbiter, we must consider whether he be elected into the place of a judge, or with some laxer power, which Seneca speaks of as the proper power of an arbiter: The judge is limited by rules of law: the umpire is left quite free, and can soften law and justice by kindness and mercy. So Aristotle says, That a fair man will rather go to an arbiter than to a judge, because the arbiter looks to equity, the judge to law.

2 In this place, equity does not mean, as elsewhere, that part of justice which interprets the law by its general tendency and real purpose, (for this part also is committed to the judge;) but it means everything which is better done than not done, even extraneous to the rules of justice, properly so called. Such arbiters are frequent, in cases between private persons and citizens of the same empire; and are especially commended to Christians by St Paul, 1 Cor. vi.; but in a doubtful case, we are not to suppose that so much power is assigned to them. For in doubtful cases, we assume as little as may be. And this especially holds, between parties who have supreme authority; for these, since they have no common judge, are to be supposed to have bound the arbiter by the rules by which the office of a judge is commonly bound.

XLVIII. This however is to be remarked, that arbiters chosen by peoples or sovereigns ought to decide concerning the principal point, [right of ownership, for instance,] not about possession: for judgments concerning possession belong to the Civil Law. By the Law of Nations, the right of possession follows the right of ownership. 428Therefore while the case is undergoing investigation, no innovation is to be made [in the possession], both to avoid prejudice, and because recovery of things so taken is difficult. So Livy says, between the Carthaginians and Masinissa, the commissioners did not change the right of possession.

XLIX. 1 The reference to an arbiter is of another kind, when a person gives himself up to the enemy as his arbiter. This is a pure surrender, making him who so gives himself up a subject, and giving supreme power to him to whom the surrender is made. So the Etolians were asked, in the senate, whether they gave themselves to the Roman people as arbiters concerning them. And P. Cornelius Lentulus, about the end of the second Carthaginian war, demanded that the Carthaginians should give themselves up entirely to the Romans, not as by treaty, but as by pure surrender.

2 But here also we must make a distinction, as to what the vanquished party ought to suffer; what the victorious party may do by right; what other duties require of him; and finally, what becomes him. The vanquished, after surrender, is liable to suffer everything: he is already a subject; and if we look at the extreme right of war, is in such a condition that everything may be taken from him; even his life; even his personal liberty; much more, goods not only public, but even private property. So in Livy, the Etolians, having surrendered at discretion, (permisso libero arbitrio,) were afraid that even their persons would not be spared. We have elsewhere cited expressions, to the effect that the conqueror may take all: to the same effect is the passage of Livy, where be says that, of old, the Romans were not satisfied with anything short of a complete surrender on the part of their enemies. And we have shewn that those who have surrendered may sometimes lawfully be put to death.

L. 1 But the victor, in order not to do anything unjustly, ought first to consider that he is not to put any one to death except such a fate be deserved by his own act. And within this limit, as far as our own safety permits, it is always praiseworthy to incline to clemency and liberality; and sometimes, from circumstances and rules of manners, even necessary to do so.

2 We have elsewhere said, that a war is well ended, when it is finished by a pardon. So Nicolaus of Syracuse says, They have surrendered, relying upon our clemency, wherefore it would be a shame that they should be mistaken. And afterwards, Who ever of the Greeks put to death those who gave themselves up to the clemency of the victor? And Cesar says to L. Antonius, If you had come to treat, you would have found me a victor who has received wrongs; but since you give yourself up entirely, you take away my anger and my power. I must consider, not only what you have deserved, but what is fit for me to do, and must prefer the latter.

3 We find, in the Roman historians, mention of surrendering to the faith, or the faith and clemency, of the adversary. See Livy, 429concerning Perseus. But all these expressions mean nothing but mere surrender. Faith, in such cases, means only the probity of the victor to whom the vanquished party commits himself.

4 There is a celebrated history, in Polybius and Livy, of Phaneas, the ambassador of the Etolians; who, in his oration to Manlius the consul, went so far as to say that the Etolians gave themselves up to the faith of the Romans. Then, when the consul asked again, and be had repeated the assertion, the consul asked that certain persons who had been the movers of the war should be given up. When Phaneas had objected, We give ourselves up to your faith, not to slavery, and that what was demanded was not according to Greek usage, the consul replied that he did not care for Greek usage; that by Roman usage he had authority over those who had surrendered deliberately; and ordered forthwith the ambassadors to be thrown into chains. Do you, he said, talk of duty and decorum, when you have given yourselves up to our faith? From which words, we see how much may be done with impunity, and without violating the Laws of Nations, by him to whose faith an adversary has surrendered himself. For the Roman consul did not use this power; but dismissed the ambassadors, and allowed the Etolian council to deliberate afresh on this subject. So the Roman people answered to the Falisci, that it had learnt, that they had committed themselves, not to the power, but to the faith of the Romans; and of the Campanians, we read that they came into faith with the Romans, not by league, but by surrender.

5 But with reference to the duty of him to whom the surrender is made, we may apply what Seneca says: Clemency is not governed by the rules of law, but judges fairly, and can absolve the offender, or tax the contest at what rate it pleases. Nor do I conceive that it makes any difference, whether he who surrenders, professes to give himself up to the wisdom, or moderation, or mercy of the victor. All these are merely soft words: the fact remains, that the victor is the arbiter.

LI. There are also conditional surrenders, which secure the interests of individuals; so that their lives, or liberties, or goods, are excepted; or of the whole body; and some such conventions may even give rise to a mixed authority between the parties; of which we have elsewhere spoken.

LII. Hostages and Pledges are accessories to conventions. Hostages, as we have said, are given either by their own will, or the will of him who has authority over them. For in a supreme civil sovereignty, is comprehended a right over the actions of subjects, as well as their goods. But the state, or its ruler, will be bound to make compensation for the inconvenience to the person who suffers, or his near relations. And if there are several persons, among whom it makes no difference to the state which is the hostage, it appears proper that the matter should be settled by lot. A vassal, except he be a subject also, is not liable to such a right on the part of the seignior: for the reverence and obedience which he owes his lord do not go so far as this.

480 LIII. The putting to death a hostage is, as we have said, lawful by the external Law of Nations; but not by internal rightness, except there be a corresponding crime on his side. Also hostages do not become slaves: but on the contrary, by the Law of Nations they can hold property and leave it to their heirs; though by the Roman law, it is provided that their goods shall go into the public treasury.

LIV. It is made a question, whether it is lawful for a hostage to make his escape. And it appears plainly that it is not lawful, if, either at first, or afterwards, he have given his word, in order to be in looser custody. Without such a condition, it would seem that the state had not the intention of binding its citizen not to escape, but of giving the enemy the power of keeping him as they chose. And in this way, the act of Clelia may be defended. But although she had not been in fault, the city could not receive and keep the hostage. So Porsenna: If the hostage were not given up, he would hold the treaty broken: and so the Romans gave up the pledge of peace according to the treaty.

LV. However, the obligation of hostages is odious; both because it is against liberty, and because it punishes a person for what another has done. Therefore, in such cases, a strict interpretation is applicable. And thus, persons given up on one account cannot be retained on another: which is to be understood with this condition, If anything else be promised without the stipulation of hostages. But if, in the other cause, faith have been violated, or a debt contracted, the hostage may then be retained; not as a hostage, but by that part of the Law of Nations by which subjects may be detained for the act of their rulers. But it may be provided that this shall not be done, by adding a covenant, that the hostages shall be given up, when that, on account of which they were given, has been fulfilled.

LVI. He who is given as a hostage, only to redeem another who is a prisoner or a hostage, is liberated, on the death of that other. For in him, when he dies, the right of the pledge is extinguished; as Ulpian said of a prisoner who is ransomed [and dies before the ransom is paid]. Wherefore, as in Ulpian’s question, the price is not due, so here too, the person of the vicarious hostage is not bound. Thus Demetrius justly demanded of the Roman senate to be set free, as having been given up for Antiochus, and Antiochus being dead. This being so, he said he did not know whom he was hostage for.

LVII. When the king is dead who made the convention, whether the hostage be still bound, depends on the question which we have elsewhere treated, whether the convention is to be held personal or real: for accessory circumstances, such as hostages, cannot be a reason for receding from the rule, in the interpretation of the main articles. The accessories must follow the nature of the main business.

LVIII. This however may be added in passing: that sometimes the hostages are not an accessory part of the obligation, but really a principal part; as when any one, by contract, promises something to be done by another; and, that not being performed is held to the 431amount of interest involved in the agreement; then his hostages are bound in his place; which was the doctrine held in the Caudine convention, as we have elsewhere stated. The opinion of those who hold that hostages are bound for one another’s acts, even without their own consent, is hard and unjust.

LIX. Pledges have some points in common with hostages, some, peculiar. It is common to the two, that being given for one thing, they may be retained for another, except a stipulation to the contrary have been made. And it is peculiar to Pledges, that the covenant which is made concerning them, is not to be taken so strictly as that concerning hostages: for things are made, to be held as property; men are not.

LX. We have also said elsewhere, that no period of time can supersede the obligation of restoring the pledge, if that be done to secure which the pledge was deposited. For an act which has an old and known cause is not to be believed to come from a new one. Therefore the forbearance of the debtor [who deposited the pledge] is to be ascribed to the old contract, not to derelict; except well-founded conjectures point to another interpretation: as if when any one wished to resume the pledge, and was prevented, he had passed it over for so long a time as to give room for a presumption of consent.