[441] CHAPTER XXII.

Of the Faith of subordinate Powers in a War.

I. AMONG Public Conventions, Ulpian places this class: When Generals make agreements. We have said that, after faith is pledged by the supreme powers, we must consider that which the subordinate powers pledge to one another or to others: whether those subordinate powers are those nearest to the supreme, as Generals properly so called, (with regard to whom we must understand the expression of Livy, We know no General except him who conducts the war;) or those farther removed, of whom Cesar thus speaks, A Brigadier has one duty, a General another; the former is to execute his orders; the latter to act freely with regard to the whole posture of affairs.

II. The promises of Officers of this kind give rise to two kinds of considerations: Whether they bind the supreme authority; and whether they bind themselves. The former question is to be decided by what we have said; that we are bound by his acts whom we have selected as the minister of our will, whether that will be specially expressed, or be collected from the nature of the command committed to him. For he who gives the means of acting, gives, as far as depends on him, the means which are necessary to such action: which, in moral matters, is to be understood in a moral manner. Therefore there are two ways in which subordinate authorities bind the supreme authority by their acts: either by doing that which, on probable grounds is conceived to be included in their office; or beyond that, committed to them by some special assignment of authority, known to those whose interests are dealt with.

III. There are also other ways in which the supreme authority 442is bound, in virtue of an antecedent act of its ministers, but so that that act is not, properly speaking, the cause of the obligation, but the occasion; and that, in two ways; either by consent of the superior, or by the thing itself. Consent appears by sanction of the act; not express only, but tacit also; that is, when the supreme authority knew what was done, and allowed it to be done; and in this case, if no other reason [besides consent] can be probably assigned, we have elsewhere stated what course the matter must take. The superior authority are obliged by the thing itself to this extent; that they are not to be made better off by the loss of other persons; that is, that they are either to fulfil the contract by which they wish to obtain an advantage, or are to give up the advantage; a case of equity which we have elsewhere discussed. And so far, and no further, acts which are performed so as to bring utility to us, are to be said to be valid. On the other hand, they cannot be excused from the charge of injustice, who, while they condemn the compact, retain that which without the compact they would not have: as when the Roman Senate neither could approve the act of Cn. Domitius, nor would rescind it: of which kind of occurrence we have many in history.

IV. 1 We must also repeat what we have said before, that he who placed a person in a command, is bound, even though the person so placed acts against secret orders; at least, within the limits of his public function. This rule of equity was rightly followed by the Roman Prætor, in the action against an Agent; for it is not everything done by the Agent which obliges the Principal, but such things only as are contracted in the matter for which his agency was employed; but he concerning whom public notice was given, that contracts with him would not be held good by the Principal, does not stand in the place of the Principal. But if notice were given, and were not publicly known, the Principal is bound. Also the condition of the agency is to be observed; for if the Principal directed the contract to be made on certain rules, or by the intervention of a certain person, it is just that the contract should be valid on these conditions.

2 From which it follows, that some kings and peoples may be more, and others less bound, by the contracts of their generals, if their laws and rules are sufficiently known. If these are not commonly known, the interpretation must be followed which conjecture dictates; in such a way that that is understood to be conceded without which the functions which belong to a person’s duty cannot be conveniently carried out.

3 If a subordinate authority has exceeded the bounds of his commission, he will be bound, if he cannot perform what it has promised, to an estimated equivalent: except some law sufficiently known prevent that also. But if deceit be added, that is, if he pretended to an authority greater than he had, he will then be bound, both for the damage done by his fault, and as a criminal, to the penalty corre443spending to his guilt. On the first ground, his goods are liable, and if they are insufficient, his labour, or his personal liberty: on the second ground, his person also is liable, or his goods, or both, according to the quantity of the transgression. What we have said of deceit, will hold, even if the person so acting made an attestation that he did not intend himself to bear the obligation; because the debt due for the damage, and the penalty due for the crime, are connected therewith, not by a voluntary, but by a natural tie.

V. And since, in all cases, either the supreme power is bound, or its minister, it is therefore certain that the other party is bound also: nor can it be alleged that the contract is one-sided.

We have considered the relation of subordinates to superiors; let us now see what power they have over inferiors.

VI. I have no doubt, that a General can bind soldiers, and a Magistrate, citizens, within the limits of those acts which are customarily done at their command: in other cases, consent is necessary. On the other side, the compact of a general or magistrate will give advantages to their inferiors absolutely, in things simply useful; for that was sufficiently comprehended in their power: also in those things which have an onus annexed to the utility, within the limits of their customary command, absolutely: and out of those limits, if they accept the compact; which agrees with what we have delivered concerning stipulations for a third party on grounds of Natural Law. These general principles will become plainer by examining specific cases.

VII. To negociate concerning the causes and consequences of the war, does not belong to the general of the army; for it is not a part of the conduct of the war, to end the war. Even if he be appointed to the command with the greatest powers, those are to be understood as relating to the conduct of the war. The answer of Agesilaus to the Persians was, that, To make peace was a matter for the State. Sallust says, Thepeace which A. Albinus had made with Jugurtha, without the authority of the Senate, the Senate rescinded. And in Livy: How can that peace be valid which we have made without the authority of the Senate, and the command of the Roman People? So the convention of Caudæ, so that of Numantia, did not bind the Roman People, as we have elsewhere explained. And so far that dictum of Posthumius is true, If the people can be bound to anything, it can be bound to everything; that is, of those things which do not pertain to the conduct of the war: for that this is the application of the words, is shown by what precedes; of surrender; of engagements with regard to giving up or burning a city; of change of the state.

VIII. To grant a Truce, is the business of a general; and not only of the supreme general, but also of subordinate ones; namely, to those whom they besiege or blockade, as far as concerns themselves and their forces. For such truces do not bind other generals 444of equal authority; as the history of Fabius and Marcellus in Livy declares.

IX. 1 In the same way, it is not the business of generals to give up men, conquests, lands, obtained in war. By this rule, Syria was taken from Tigranes, though Lucullus had given it to him. Of Sophonisba, who had been taken prisoner in war, Scipio says that the judgment and decision of the Senate and People of Rome was to determine; and that therefore Masinissa, though the general by whom she was taken, could not give her liberty. That over other things which are taken as prize of war, a certain disposal is conceded to persons in authority, we have seen; not so much from the force of their power, as from the customs of each people: on which subject we have already spoken sufficiently.

2 It is however in the power of generals to grant the possession of things not yet acquired: because towns sometimes and men often surrender themselves in war, on condition of lives being spared, or liberty, or property; among which concessions generally, the state of things does not allow the decision of the supreme authority to be asked. And by parity of reason, this right is also given to commanders who are not the highest, within the limits of the matters which are committed to them to execute. Maharbal had given to some Romans who had escaped from the battle at Trasimenum, Annibal being absent for so long a time as to leave room for this, not only his pledge for their lives, but, if they gave up their arms, the liberty of departing each with a single suit of apparel. But Annibal retained them, alleging that it was not in the power of Maharbal to pledge himself, without consulting him, to those who surrendered, that they should be free from harm and penalty. The judgment of Livy respecting this act follows: This pledge was observed by Annibal with Punic faith.

3 And therefore we must take what Cicero says, in the case of Rabirius, as coming from an advocate, not a judge. He maintains that Saturninus was lawfully put to death by Rabirius, having been drawn from the Capitol by C. Marius on his faith given. How, he says, could faith be given without a decree of the Senate? And he reasons as if Marius alone were bound by such a pledge. But C. Marius had received from the Senate the commission of acting so as to preserve the empire and the majesty of the Roman people: and in that power, which was the highest, according to Roman custom, who can deny that there was comprehended the right of granting impunity, if in that way all peril might be averted from the commonwealth?

X. But in those pacts of generals, because they act concerning the affairs of others, so far as the nature of contracts allows, the interpretation is to be limited; namely, so that the supreme power is not bound by their act more than it intended, and so that they do not suffer damage by undertaking their office.

XI. And thus he who is admitted to a pure surrender by the 445general, is understood to be accepted on the condition that the victorious people or king is to determine his fate: of which examples are to be found in Gentius the Illyrian, and Perseus the Macedonian, of whom the former surrendered himself to Anicius, and the latter to Paulus.

XII. The condition added, This to be valid if the Roman People so judge, which you often find in conventions, will produce the effect, that if that sanction do not follow, the general is held to nothing, except so far as he is himself bettered by the transaction.

XIII. Also they who have promised to give up a town may dismiss the garrison; as we read that the Locrians did.