[450] CHAPTER XXIV.

Of Tacit Faith.

I. IT is well said by Javolenus, that some things are agreed upon in silence. This happens in public conventions, and in private, and in mixed. The cause this; this consent, however indicated and accepted, has the force of transferring right. But there are other signs of consent, besides words and letters, as we have more than once indicated.

II. Some are by nature inherent in certain acts. For an example, take him who coming from the enemy, or from strangers, gives himself into the hands of another people or king. For that such a person tacitly binds himself not to do anything against that state in which he seeks refuge, cannot be doubted. Wherefore they are not to be followed, who say that the act of Zopyrus was free from blame: for his fidelity to his king does not excuse his perfidy towards those to whom he fled. The same must be said of Sextus; the same of Tarquin who went over to Gabii. Virgil speaks of Sinon’s treachery and crime.

III. So he who either asks for or grants a parley, tacitly promises that it shall be without damage to the parties parleying. When enemies are harmed under pretence of a colloquy, Livy says that the law of nations is violated: adding, Colloquium perfide violoatum. So Valerius Maximus, of Cn. Domitius, who had drawn in Bituitus, king of the Arverni, under pretence of a colloquy, and had then thrown him into chains: Too great greediness of glory made him perfidious. And hence we must wonder why the writer of the eighth Book of Cesar’s Gallic War, whether it be Hirtius or Oppius, relating a similar act of Labienus, adds: He judged, that his (Comius’s) faithlessness might be suppressed without perfidy; except we are to look upon this as the judgment of Labienus, not of the writer.

IV. But this tacit will [or promise] is not to be drawn beyond the limits which I have stated: for provided the collocutors suffer no harm, to turn away the enemy from warlike measures by the appearance of 451a colloquy, and in the mean time to push on our own designs, has no perfidy in it, and is reckoned among good stratagems. And thus they who complained that Perseus was deceived by the hope of peace, took account, not so much of right and of good faith, as of magnanimity and glory: as may be understood by what we have said of stratagems. Of the same kind was the trick by which Asdrubal saved his army from the Ausetanian jungle; and by which Scipio Africanus Major learnt the situation of the camp of Syphax: both which stories are told in Livy. And these examples are imitated by L. Sylla, in the social war at Esernia, as we read in Frontinus.

V. There are also certain mute signs which have a signification from custom, as formerly fillets and olive-branches; among the Macedonians the raising of spears; among the Romans the placing the shields on the head, the sign of a suppliant surrender; which immediately obliges the persons to lay down their arms. As to him who signifies that he receives the surrender, whether he be obliged, and how far, is to be determined by what we have said above. At present a white flag is a tacit sign of asking for a parley; and binds the askers as much as if they used words.

VI. How far engagements made by generals are to be supposed tacitly approved by the people or the king, we have also discussed above; namely, that it is so to be understood, when the act is known, and anything is done, or not done, of which no other reason can be assigned but the will to approve the convention.

VII. The remission of a penalty cannot be collected merely from silence. It is necessary that there be added some act, which either of itself shews friendship, or a league on the ground of friendship, or an opinion of the existence of virtues which may give rise to a condonation of previous acts; whether that opinion be expressed in words, or by means of things which by custom are appointed to convey such meaning.