[432] CHAPTER XXI.

Of Faith while war continues; of Truce; of Safe Passage; of Ransom.

I. 1 EVEN during war, the supreme authorities are wont to grant certain kinds of intercourse among the hostile parties; as Truce, Safe Passage, Ransom. Truce is a convention, by which, the war remaining, the parties are for a time to abstain from warlike acts. I say, the war remaining; for as Cicero says, between war and peace, there is no medium; and war is the name of a state or condition which may exist, even when it does not exhibit its operations: according to Aristotle’s distinction, of virtues or qualities which may continue to exist, even while they are not exerted. And so his commentators, as Andronicus, speak of a habit which exists without the act; and Eustratius, who exemplifies it by a geometer in whom geometry resides, though he be asleep. And so Horace.

433 2 And thus, as Gellius says: A truce is not peace; for the war remains, though the fighting ceases. And in another: A truce is a suspension of war. Which I mention to show that if any convention be made which is to be valid in time of war, it is valid also during a truce, except it plainly appear that, in the convention, it is not war which is looked to, but the operations of war. And on the other hand, if anything is said of peace, that will not hold for the time of truce: although Virgil calls a truce a sequestral peace, which Servius, on the passage, explains as a temporary peace. As also the Scholiast on Thucydides, an occasional peace, or a war in labour. Varro calls it a camp-peace, a peace of a few days; but all these are not definitions, but descriptions, and metaphorical descriptions. So too is that of Varro, when he calls a truce the holiday or vacation of war. He might have called it a slumber of war. So the holiday produced by the forensical ceremonies is called a peace by Papinius. Aristotle calls sleep the chain of the senses; and adopting that image, you might call a truce the chain of war.

3 In the exposition of Varro’s words which Donatus follows, Gellias rightly reprehends his having added, “a peace of a few days;” and he shows that truces were granted for hours. And I add further, that truces have been made for years, as twenty, thirty, forty, even a hundred; of which we have examples in Livy, which show the error of that definition of Proclus the Jurist: A truce is, when for a short and present time, a convention is made, that the parties are not to attack each other.

4 It may however happen, that if it appear that the sole moving reason of any convention was the cessation of warlike acts, that then, what is said of the time of peace shall hold for a time of truce; not from the force of the word, but from the clear inference of intention, of which we have elsewhere spoken.

II. The name Induciædoes not come, as Gellius would have it, from inde uti jam; nor as Opilius holds, from endoitu, that is, introgression; but from inde otium, because from a certain time there is a cessation of acts. It appears also, from Gellius and Opilius, that the ancients wrote this word with the letter t, not c; and that though now it is plural only, it formerly had a singular. The old form was indoitia, for otium was then written oitium, from the verb oiti, which later became uti; as from poina(afterwards pœna) came punio, and from Poino (afterwards Pœnus) came Punicus. And as from ostia in the plural, ostia, ostiorum, a door, came the singular ostia, ostiæ; so from the plural indoitia, indoitiorum, came indoitia, indoitiæ, and thence indutia, of which, as I have said, the plural only remains in use, though the singular formerly was used, as Gellius tells us. Donatus is not far from this etymology, when he says that Induciæ were so called because they give in dies otium, cessation for days. Induciæ, or Truce, then, is a cessation of acts in war, not a peace; and therefore the 434historians speak accurately, when they say that peace was denied, but truce granted.

III. And therefore there is no need of a new declaration of war after a truce: for the temporary impediment being removed, the state of war comes into play, as a matter of right; it was not dead, but only sleeping; and revives, as the right of ownership or of paternal power revives, in a man who recovers from a state of lunacy. Still we read in Livy, that in pursuance of the opinion of the Feciales, when the truce was over, war was declared: but in fact, the old Romans wished to show, by those superfluous cautions, how much they loved peace, and by how just causes they were drawn into arms. Livy implies this: Truce was granted, not peace made; the last day of the truce had passed, and before that day, they had resumed hostilities; yet the Feciales were sent, and when they made their formal application, they were disregarded.

IV. 1 The time of a truce is commonly defined by its length, as, for a hundred days; or by fixing the end of the term, as, till the first of March. In the former case, the reckoning is to be made even to minutes: for that is the natural way. The cessation by civil days cornes from law, or the customs of peoples. In the other case, it is often a doubt, whether the day or month or year to which the truce was to last is excluded or included in the truce.

2 Certainly in natural things there are, two kinds of boundary; the one, within the thing, as the skin is the boundary of the body: the other without the thing, as a river is the boundary of the land. And so, boundaries which are made by the will of man, may be settled either the one way or the other. But it seems more natural, that a boundary should be taken which is a part of the thing: a terminus is the last part of a thing, as Aristotle says: nor is use against this. The lawyers say: If any one says that a thing is to be done before the day of his death, the day on which he dies is reckoned in. Spurina predicted to Cesar a danger which would not be protracted beyond the Ides of March. And when he was interrogated on the Ides themselves, he said the Ides were come, but not gone. And therefore this interpretation is much the rather to be taken, when the prolongation of the time has a favourable effect; as in a truce which spares human blood.

3 But the day from which any measure of time is said to begin is not included; because the force of the preposition from is to disjoin, not to conjoin.

V. I will add this by the way, that a truce or any similar transaction binds the contracting parties immediately, as soon as the contract is made: but that subjects on both sides begin to be obliged, when the truce has taken the form of a law, in which is involved some external publication: and this being done, it immediately begins to have force to oblige subjects: but that force, if the publication is 435made at one place only, does not operate through the whole government at the same moment; but in a time sufficient to carry the knowledge to each place. Wherefore, if anything be in the mean time done by the subjects against the truce, they will not be liable to punishment: but nevertheless the contracting parties will be bound to make good the damage.

VI. 1 What is lawful during the truce, and what is not, is given to be understood by the terms themselves which are employed. All acts of war, whether against persons or against things, are unlawful; that is, everything that is done against an enemy. Everything of that kind is, in time of truce, against the Law of Nations; as L. Emilius says in his speech to the soldiers in Livy.

2 Even things belonging to the enemy, which have, by any chance, come into our hands, are to be restored; and this, even if they had previously been ours: because, so far as regards external right, by which such things are to be judged, they have become theirs. And this is the purport of what Paulus the jurist says, that in time of truce, there is no postliminium; because postliminium requires that the right of capture in war should precede; which, in time of truce, cannot be.

3 It is lawful to go and return on either side, but with such apparatus only as shows that there is no danger. This is remarked by Servius upon Virgil, Mixtiqueimpune Latini: where he also relates, that when the city was besieged by Tarquin, and truce was made between Porsenna and the Romans, when the Circensian games were celebrated in the city, the leaders of the enemy entered and contested in a chariot-race, and were crowned as victors.

VII. To retire into the interior of our own territory, as we read in Livy that Philip did, is not at variance with a truce; nor to repair the walls of fortified places; nor to raise soldiers, except there be some more special convention.

VIII. 1 To corrupt the garrisons of the enemy, and so to obtain possession of places which they hold, is undoubtedly in contravention of a truce; for such an acquisition cannot be just, except by the right of war. The same is to be held, if subjects wish to revolt to the enemy. We have an example in Livy. Those of Corona and Haliartus being inclined to kings, sent ambassadors into Macedonia to ask for a garrison to defend them against the Thebans; to whom the king answered, that on account of the truce with the Romans he could not send a garrison. In Thucydides, Brasidas took possession of Menda, which revolted from the Athenians to the Lacedæmonians during the time of truce: but there is added the excuse, that he had things to complain of in return against the Athenians.

2 It is lawful in time of truce to occupy what is derelict; provided it is truly derelict, that is, left with the intention of not being resumed by those to whom it had belonged; not if it is merely unguarded; whether the custody were withdrawn before the truce, or after the 436truce was concluded. For the ownership remaining, makes the possession of the other party unjust. And by this rule, the false plea of Belisarius against the Goths is refuted; for he, on such a pretence had seized in time of truce places stripped of their garrisons.

IX. 1 It ii made a question, whether be who, being prevented by major force* from retreating, is caught within the boundaries of the enemy after the period of the truce has expired, has the right of returning. If we regard the external Law of Nations, I do not doubt that such a person is in the position of one who, having come in peace, is, by the sudden breaking out of war, caught by accident among enemies; and we have noticed before that such a one remains a prisoner till a peace. Nor is internal justice wanting for such a proceeding; so far as the goods and actions of enemies are bound for the debt of the state, and are taken towards its payment. Nor has such a person more ground to complain, than so many other innocent persons upon whom the calamities of war fall.

2 Nor ought there to be urged, on the other side, the cases of merchandises which, by stress of weather, are carried past the place where dues are to be paid, and which nevertheless are excused^†; nor the case mentioned by Cicero, of a ship of war, forced by stress of weather into a port, where its entering was contrary to the law, and which the questor wanted to confiscate. For in these cases, the operation of major force excuses the party from the penalty: but in our case, the question is not properly concerning penalty, but concerning a right [of war], which was quiescent only during a certain interval of time. But that to remit such rights is more humane, and also more generous, admits of no doubt.

X. There are also some things which are unlawful during a truce, in consequence of the special nature of the convention: as if a truce Is granted, only for the sake of burying the dead, nothing is to be changed; and if a truce is given to a besieged place, only that they are not to be assaulted, it will then not be lawful to admit aid and provisions: for since such a truce is given as an advantage to one of the parties, it ought not to damage the position of him who granted it. Sometimes also it is stipulated, that it shall not be lawful for persons to pass between the parties. Sometimes such passage is granted to persons, but not to things; in which case, if persons are hurt in resisting the passage of things, the truce is not broken. For since it is lawful to oppose the passage of things, the security of persons is to be referred to that which is principal, not to that which is a matter of consequential result merely.

XI. If the faith of the truce be broken on one side, there is no ground for doubting whether it be open to the other party to return to the employment of arms, even without a declaration; for the Articles of the convention are parts of the convention, in the way of 437condition, as we said a little while ago. You may indeed find in history examples of persons who have continued to bear wrongs even to the end of the truce. But on the other hand, war was made against the Hetruscans and others, because they did acts against the truce; and this diversity is an argument that the right is as we say; but that, to use or not to use such right, is at the option of the injured party.

XII. This is certain, that if the penalty agreed upon is demanded and paid by him who has acted against the truce, there is then no right of going to war; for the penalty is paid that everything else may remain unviolated. And on the other hand, if the war is resumed, it is to be considered that the claim of penalty is abandoned, since the option is given.

XIII. Private acts do not touch a truce, except a public act be added; for example, an act of commanding the thing to be done, or of accepting it as valid when it is done; and these public acts are understood to be adjoined, if those who have offended are neither punished nor given up; or if the things seized are not restored.

XIV. The right of Safe Passage out of the time of truce, is a privilege; and therefore in the interpretation of this right, the rules are to be followed which are given for privileges. This privilege, however, is neither hurtful to a third person, nor very burthensome to the giver; and therefore within the propriety of the words, a lax rather than a strict interpretation is to be admitted; and still more, if it be not a boon given on asking, but voluntarily offered: and more still, if, besides private convenience, some public utility is involved in it. Therefore the strict interpretation is to be rejected, even when the words imply it, except some absurdity would otherwise follow, or very probable conjectures of intention point that way. And on the other hand, a laxer interpretation, even not included in the propriety of the words, will be applicable, to avoid a similar absurdity, or upon very urgent conjectures.

XV. Hence we collect, that Safe Passage, granted to soldiers, is extended, not only to subaltern officers as well as to common soldiers, but also to the highest in command: because the propriety of the words admits of that signification; though there is another stricter limitation of the expression. So under the title of Clerks, comes also a Bishop. Also sailors who are in fleets are included; and all who are under the oath of military obedience.

XVI. 1 In granting free passage for going, is included also returning; and this, not from the force of the word, but to avoid an absurdity: for the boon ought not to be useless. And safe departure is understood to extend till the person comes to a place where he is in safety. And hence, Alexander is accused of bad faith, who, having granted safe departure to certain persons, ordered them to be put to death on the way.

438 2 But he who is allowed to depart, is not, necessarily, allowed to return: and he who is allowed to come himself, cannot send another: or on the contrary, can he who is allowed to send, come himself. For these are different things, nor does reason compel us in this case to wander beyond the words; but yet so that a mistake on this subject, though it do not give a right, yet relieves the person from the penalty if any be added. Also he who is allowed to come, is allowed to come once, not repeatedly; except by the addition of time, ground is given to conjecture otherwise.

XVII. The son is not allowed to accompany the father, nor the wife the husband, any otherwise than is allowed in the right of dwelling in the enemy’s territory: for we are used to dwell with our families, but to travel without them. But one or two servants, even if it be not expressed, will be supposed to be comprehended in the case of a person who cannot with decorum travel without such accompaniment: for he who concedes any favour, concedes its necessary consequences: and necessity is here so be understood morally.

XVIII. In like manner, goods of any kind are not comprehended in such a grant, but only such as you usually take on a journey.

XIX. If companions be expressed, those are not to be understood, whose case is more odious than the person himself to whom the grant is made. Such are pirates, robbers, deserters, refugees. The expression of the name of the nation of the companions permitted, shews sufficiently that the permission does not extend to others.

XX. The right of Safe Passage, since it proceeds from the force of power, in a dubious case is not extinguished by the death of the grantor; as we have said elsewhere of grants made by kings and other governors.

XXI. Disputes often arise on the point of grants made with the expression, As long as I shall think proper. And theirs is the sounder opinion, who hold that such a grant continues, even if a new act of willing do not intervene; because in a dubious case, that is presumed to continue to operate, which is necessary to the effect of right; but this is not so, when he who made the grant has ceased to be able to will, as happens by death. For the person being taken away, that presumption of duration falls to the ground along with it, as an accident ends with the substance.

XXII. Safe Passage implies safety beyond the territory of the grantor, as well as within it: for it is given against the right of war, which is not limited to the territory; as we have elsewhere said.

XXIII. The Ransom of Prisoners is very favourably looked upon, especially among Christians, to whom the divine law especially commands this kind of mercy. The Ransoming of Captives is a great and excelling office of justice, are the words of Lactantius. So Ambrose. And he defends the act of himself and the Church in break439ing up, even the consecrated vessels of the church, in order to redeem captives. The ornament of the sacraments is the redeeming of captives; and much to the same effect.

XXIV. 1 These considerations prevent me from approving, without distinction, of those laws which forbid the ransom of captives, as we learn that the old Roman laws did. No city holds its captive citizens more cheap than we do, says some one in the Roman Senate. And the city is called, by Livy, little indulgent to its captives, from early time. So Horace calls the ransom of captives a foul condition, and an example leading to evil, loss added to shame. But in fact, the blame which Aristotle casts upon the Lacedæmonian institution is also ascribed to the Roman; that everything has reference to war, as if the safety of the state depended on that alone. But if we consider the interests of humanity, it would often be better that the right which is sought in war should be lost, than that a great number of men, our relations or fellow-countrymen, should be left in a condition of the deepest calamity.

2 Therefore such a law does not appear to be just, except it appear that there is need of such rigour, that more or greater evils, otherwise inevitable, may be averted. For in such a necessity, as the prisoners themselves should, by the law of charity, bear their lot patiently, so may this be enjoined them; and others may be directed not to do anything to the contrary; according to what we have elsewhere said of surrendering a citizen for the public good.

XXV. According to our habits, those taken in war do not become slaves: but I do not doubt that the right of exacting the amount of the ransom may be transferred, by the person who has the possession of the prisoner, to another person: for nature permits even incorporeal things to be alienated.

XXVI. And the same person may owe the amount of ransom to more persons than one, if, when he has been let go by one, and the price is not yet paid, he is captured by another: for these are different debts from different causes.

XXVII. The agreement concerning the amount of ransom, cannot be rescinded on account of the prisoner being discovered to be richer than he was supposed to be; because, by the external Law of Nations, which is the subject of our present enquiry, no one is compelled to give more than he promised in a contract, at a price different from the current price, if there has been no deceit: as may be understood from what we have said about Contracts.

XXVIII. From what we have said, that prisoners with us are not slaves, it follows that there is an end of that acquisition of a right over all that belongs to the person, as well as the person; for that this is a mere accessory to the power over the person, we have elsewhere said. Therefore nothing else becomes the property of the captor, but what he specially takes possession of. And therefore, if the prisoner has anything secreted with him, that is not acquired by the 440captor, because it was never in his possession. So Paulus the jurist gave his opinion against Brutus and Manilius, that he who came into possession of a piece of land, did not acquire possession of a treasure which he did not know to be there; because not knowing of it, he could not be the possessor of it. From which it follows, that property so concealed may be applied to furnish the amount of ransom; the ownership having been retained by the prisoner.

XXIX. 1 This is also a frequent question: whether the ransom agreed upon, and not paid before death, be due from the heir. The answer appears to me to be obvious, if the prisoner die in captivity, that it is not due: for the promise was, on the condition that the prisoner should be liberated, and a dead man is not liberated. On the other hand, if he dies when he is at liberty, it is due; for he had already got the thing for which the price was promised.

2 I undoubtedly confess that the agreement may be made otherwise, so that, from the moment of the contract, the price may be absolutely due, and the prisoner may be retained, not now as a prisoner of war, but as a pledge given by himself: and on the other hand, that it may be covenanted that the payment of the price shall take place, if on a certain appointed day, he who is captive, be alive and free. But such conditions, as being less natural, are not to be presumed, except upon manifest evidence.

XXX. This question also is propounded: whether he ought to return into captivity, who was set free, on the compact that he should cause another to be liberated, who, by dying, prevented that being done. We have elsewhere said that the liberal promise of a third person is fulfilled with sufficient exactness, if nothing be omitted on the part of the promiser; but that in onerous promises, the promiser is obliged to an equivalent. And therefore in the question proposed, the person liberated will not be bound to return himself into captivity; for that was not the agreement, and the favour which is to be shown to liberty, does not allow us to suppose it tacitly understood; nor ought he to take his liberty, as a gain, without a consideration; but he must give the estimated value of the thing, which itself he cannot give. For this is more agreeable to the simplicity of nature, than the rules which the Roman jurists give, in speaking of an action on a promise made in formal terms; or a suit when a thing is given for a cause, and the cause does not follow.