[446] CHAPTER XXIII.

Of Private Faith in War.

I. THE dictum of Cicero is sufficiently well known;—Even if individuals under the pressure of the time have promised anything to the enemy, faith also is to be observed in that: individuals meaning either solders or civilians: for it makes no difference which they be, as to the obligation of good faith. It is strange that there should have been found masters of law who taught that pacts made publicly with enemies, bind us to good faith; but that those which are made by private persons, do not. For since private persons have private rights which they can subject to obligation, and since enemies are capable of acquiring rights, what can there be to impede the obligation? Add, that except we establish this rule, there is given occasion of bloodshed, and impediment to liberty; for if the faith of private persons be removed, the former can often not be prevented, nor the latter obtained by prisoners.

II. Indeed, not only is our word binding when given to an enemy whom the Law of Nations acknowledges as such, but even to a robber or a pirate; as we have said above, in speaking of public faith. There is this difference, that if an unjust fear, impressed by another, has been the force impelling to the promise, he who made the promise may seek restitution; or if the other will not give it, may take it by his own power. This does not hold in the case of fear proceeding from a war public according to the Law of Nations. But if an oath be added, ho who promised must by all means perform what he has promised, if he wishes to escape the crime of perjury. Yet such a per447jury, if committed towards an enemy, is commonly punished by men; if it be committed against robbers or pirates, it is commonly overlooked, in consequence of the hatred borne to such persons.

III. In this case of private faith we do not except a Minor, who is in such a condition that he understands the act. For the allowances which are made to minors are made by the Civil Law. And we are now considering the results of the Law of Nations.

IV. With regard to Error, we have elsewhere said that there is a right of receding from a contract, if that which was by error given in trust have, in the mind of him who entrusted it, the force of a condition.

V. 1 How far the power of private persons, to make agreements, extends, is a more difficult question. That what is public property cannot be alienated by a private person, is sufficiently plain: for if that was not even permitted to generals, as we have proved just now, much loss is it to private persons. But it may be questioned concerning their own actions and property; because it may seem that these also cannot be conceded to the enemy without some damage of the party: whence it may seem that such pacts with the enemy are unlawful for citizens, on account of the eminent jurisdiction of the state; and for regular soldiers, on account of their military oath.

2 But it is to be considered that those pacts which are made in order to avoid a greater or certain evil, ought to be reckoned more useful than hurtful to the public also; because the lesser evil assumes the nature of a good. Nor does fidelity to the state or his superior, since by this the person does not abdicate his power over himself and his property; nor does the public utility alone, without the authority of law; produce such an effect, that what is done, oven if it be done against duty, shall be void and destitute of jural effect.

3 Law indeed may take from subjects, either perpetual or temporary, their power: but the law does not always do this; for it is tender of the interests of citizens. For human laws, as we have elsewhere said, have then, and then only, a binding force, if they are made in a humane manner, not if they impose burthens which are repugnant to reason and nature. And therefore special laws and precepts which have, upon the face of them, anything of this kind, are not to be held as laws: and general laws are to be interpreted indulgently, so as to exclude cases of extreme necessity.

4 If an act, which was interdicted by a law or precept, and deprived of its validity by prohibition, could be interdicted with reasonable right, the act of the private person will be void; but at the same time he is liable to punishment for having promised what was not in his power, and especially if he did it under oath.

VI. The promise of a prisoner to return into captivity is rightly allowed: for it does not render the condition of the prisoner worse than it was. And therefore Regulus, in doing what he did, acted not gloriously only, as some think, but also as he ought. Regulus, says 448Cicero, ought not to disturb the conditions and covenants belonging to the laws of war, by an act of perjury. Nor is it a sound objection, that, as Horace says, he knew the tortures which awaited him: for when he gave the promise he knew how likely this was. And so with regard to the ten prisoners, as Gellius tells the story out of old authors; Eight said that they had no right to postliminium, for they had by their oaths lost the, character of citizens.

VII. 1 Also prisoners often promise not to return to a certain place, or not to bear arms against him who has them in his power. We have an example of the former case in Thucydides; when the Ithomians promise the Lacedæmonians that they will quit Peloponnesus, and never return. The latter kind of engagement is now common. We have an old example in Polybius, when the Numidians are dismissed by Amilcar, on condition of never bearing arms against the Carthaginians. Procopius in his Gothic history has a similar pact.

2 Some moralists pronounce this pact void, because it is against the duty which a person owes to his country. But what against duty, is not necessarily and of course void; as we have already explained. And in the next place, it is not against duty to obtain one’s liberty by promising that which is already in the enemy’s power. For the cause of the country is not worsened by such an act; for he who is a captive has ceased to be of any value to that cause.

VIII. Also some promise not to make their escape. They are bound by this promise, even though they were under restraint when they promised; contrary to the opinion of some moralists. For in this way, men’s lives are saved, and their captivity made less harsh. If, however, a person, having made such a promise, is afterwards put in chains, he will be liberated from his promise, if he made it to avoid being put in chains.

IX. A question is raised, idly enough, whether he who is captured can surrender himself to another than the captor. For it is abundantly certain that no one can by a compact of his take away a right from another. And the captor has already acquired a right, either by the right of war, or partly by the right of war, partly by the concession of the superior authority which makes the war; as we have explained above.

X. With regard to the effects of compacts, there is a noted question, whether private persons, if they are negligent in fulfilling their engagements, can be compelled by their own authorities. And the sounder opinion is, that they are compellable only in a regular war, on account of the Law of Nations, by which the belligerents are bound to fulfil the rules of justice to each other, oven with regard to the acts of private persons; as for instance, if ambassadors had been violated by private persons. So Cornelius Nepos, as Gellius informs us, had written, that many of the senators were of opinion, that those of the ten captives who were unwilling to return, should be sent to Hannibal under guard.

449 XI. With regard to Interpretation, the rules are to be observed In this case also, which we have several times mentioned; that we are not to recede from the propriety of the words, except in order to avoid an absurdity, or for some other good probable reason: that in a doubtful case we are rather to interpret the words against him who gave the law: and the like.

XII. He who has covenanted for his life, has not a right to his liberty also. Under the name of clothes, arms are not included: for they are different in kind. Aid is said to have arrived, if it be in sight, though it be doing nothing; for the presence of it has an efficacy.

XIII. But he cannot be said to have returned to the enemy according to his promise, who returned secretly in order to go away again immediately: for he was to be understood to mean by return, that he was again to be in the power of the enemy. The contrary quibbling interpretation is called by Cicero silly cunning, involving fraud and perjury. And this interpretation is called by Gellius a fraudulent cunning; and those who had employed it were noted as ignominious by the censor, and made incapable of giving evidence, and disreputable.

XIV. When an agreement is made for surrendering a city except proper aid arrive, such aid is to be understood as makes the danger cease.

XV. This also is to be noted, that if any covenant is made as to the mode of executing the convention, that does not become a condition of the agreement: as, if it were said that it is to be discharged in a certain place, which place afterwards changes its master.

XVI. With regard to Hostages, what we have said above is to be observed, that in general, they are accessories to the principal act: but it may be covenanted that the obligation shall be disjunctive; that either something shall be done, or the hostages retained. But in a doubtful case, we must hold to the most natural supposition, that they are only accessories.