The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of compacts with an enemy, which do not put an end to the war.
I. AMONG those compacts, which leave us in a state of war, one of the principal is a truce.
A truce is an agreement, by which we engage to forbear all acts of hostility for some time, the war still continuing.
II. A truce is not therefore a peace, for the war continues. But if we agree, for instance, to certain contributions during the war, as these are granted only to prevent acts of hostility, they ought to cease during the truce; since, at that time, such acts are not lawful. And on the contrary, if it be agreed, that any particular thing is to take place in time of peace, the time of truce is not included.
III. As every truce leaves us in a state of war, it follows, that after the term is expired, there is no necessity that war should be declared again; because we do not commence a new war, but only continue that, in which we were already engaged.
IV. This principle, that the war renewed after a truce is not a new war, may be applied to several other cases. In a treaty of peace, concluded between the bishop of Trent and the Venetians it was agreed, that each party should be put in possession of what they enjoyed before the last war.
In the beginning of this war the bishop had taken the castle from the Venetians, which they afterwards retook. The bishop refused to give it up, under a pretext that it had been retaken after several truces, which had been made during the course of that war. The dispute was evidently to be decided in favor of the Venetians
V. There are truces of several kinds.
1. Sometimes, during the truces, the armies on both sides are in the field, and in motion; and these are generally limited to a few days. At other times the parties lay down their arms, and retire to their own countries; and in this case the truces are of longer duration.
2. There is a general truce for all the territories and dominions of both parties; and a particular truce restrained to particular places; as for example, by sea, and not by land etc.
3. Lastly there is an absolute, indeterminate, and general truce, and a truce limited and determined to certain things; for example to bury the dead, or, if a besieged town has obtained a truce only to be sheltered from certain attacks, or from particular acts of hostility, such as ravaging the country.
VI. We must also observe, that, strictly speaking, a truce can be made only by express agreement; and that it is very difficult to establish a treaty of this kind on the footing of a tacit convention, unless the facts are such in themselves, and in their circumstances, that they can be referred to no other principle, than to a sincere design of suspending acts of hostility for a time.
Thus, though for a time we abstain from acts of hostility, the enemy cannot from that alone conclude, that we have consented to a truce.
VII. The nature of a truce sufficiently shows what the effects of it are.
1. If the truce be general and absolute, all acts of hostility ought, generally speaking, to cease, both with respect to persons and things; but this should not hinder us, during the truce, to raise new troops, erect magazines, repair fortifications, etc. unless there be some formal convention to the contrary; for these are not in themselves acts of hostility, but defensive precautions, which may be taken in time of peace.
2. It is a violation of the truce to seize on any place, possessed by the enemy, by corrupting the garrison. It is also evident, that we cannot justly, during a truce, take possession of places deserted by the enemy, but really belonging to him, whether the garrison were withdrawn before or after the truce.
3. In consequence hereof, we must restore those things belonging to the enemy, which during the truce have accidentally fallen into our hands, even though they had been formerly our property.
4. During a truce, it is allowed to pass and repass from one place to another, but without any train or attendance, that may give umbrage.
VIII. And here it may be asked, whether they who, by any unexpected and inevitable accident, are found unfortunately in the enemy’s country, at the expiration of a truce, can be detained prisoners, or ought to have the liberty of retiring? Grotius and Puffendorf maintain, that by the right of war we may detain them as prisoners; but Grotius adds, that it is certainly more humane and generous, not to insist on such a right. I am of opinion, that it is the consequence of a treaty of truce, that we should set such persons at liberty; for since, in virtue of that engagement, we are obliged to grant them free egress and regress during the time of the truce; we ought also to grant them the same permission after the truce is expired, if it appears manifestly that a superior force, or an unexpected accident, has hindered them from making use of it during the time agreed upon. Otherwise, as these accidents may happen every day, such a permission would often become a snare to make a great many people fall into the hands of the enemy. Such are the principal effects of an absolute and general truce.
IX. With regard to a particular truce, determined to certain things, its effects are limited by the particular nature of the agreement.
1. Thus, if a truce be granted only for burying the dead, we ought not to undertake any thing new, which may alter our situation; for instance, we cannot, during that time, retire into a more secure post, nor intrench ourselves, etc. for he, who has granted a short truce for the interment of the dead, has granted it for that purpose only, and there is no reason to extend it beyond the case agreed on. Hence it follows, that if he, to whom such a truce has been allowed, should take advantage of it to intrench himself, for example, or for some other use, the other party would have a right to prevent him by force. The former could not complain; for it never could be reasonably pretended, that a truce, which was allowed for the interment of the dead, and restrained to that single act, gives a right to undertake, and carry on any other thing undisturbed. The only obligation it imposes on the person, who has granted it, is, not forcibly to oppose the interment of the dead; though Puffendorf indeed is of a contrary opinion.1
2. It is in consequence of the same principles, that if we suppose that by the truce persons only, and not things, are protected from acts of hostility; in this case, if in order to defend our goods we wound any person, it is not a breach of the truce; for when the security of persons, on both sides is agreed on, the right of defending against pillage is also reserved. And hence the security of persons is not general, but only for those, who go and come without design to take any thing from the enemy, with whom such limited truce is made.
X. Every truce obliges the contracting parties from the moment the agreement is concluded. But the subjects on. both sides are under no obligation in this respect, till the truce has been solemnly notified. Hence it follows, that, if before this notification the subjects commit any acts of hostility, or do something contrary to the truce, they are liable to no punishment. The powers however, who have concluded the truce, ought to indemnify those, who have suffered and to restore things, as much as possible, to their former state.
XI. Lastly if the truce should happen to be violated on one side, the other is certainly at liberty to proceed to acts of hostility, without any new declaration. Yet when it is agreed, that he, who first breaks the truce, shall pay a certain fine, if he pays the fine, or suffers the penalty, the other has not a right to begin acts of hostility, before the expiration of the term. But besides the penalty stipulated, the injured party has a right to demand an indemnification of what he has suffered by the violation of the truce. It is to be observed however, that the actions of private persons do not break a truce, unless the sovereign has some hand in them, either by order, or by approbation; and he is supposed to approve what has been done, if he will neither punish, nor deliver up the offender, or if he refuses to restore the things taken during the cessation of arms.
XII. Safe conducts are also compacts made between enemies, and deserve to be considered. By a safe conduct we understand a privilege, granted to some persons of the enemy’s party, without a cessation of arms; by which he has free passage and return, and is in no danger of being molested.
XIII. The several questions relating to safe conduct may be decided, either by the nature of the privilege granted, or by the general rules of right interpretation.
1. A safe conduct granted to soldiers extends not only to inferior officers, but also to those, who command in chief; because the natural and ordinary use of the word has determined it so.
2. If leave be given to go to a certain part, it implies one also to return, otherwise the former permission would be often useless. There may however be cases, in which the one does not imply the other.
3. He, who has had leave to come, has not, generally speaking, liberty to send another in his place; and, on the contrary, he, who has had a permission to send another person, cannot come himself; because these are two different things, and the permission ought to be naturally restrained to the person himself, to whom it was granted; for perhaps it would not have been given to another.
4. A father, who has obtained a passport, cannot take his son with him, nor a husband his wife.
5. As to servants, though not mentioned, it must be presumed allowable to take one or two, or even more, according to the quality of the person.
6. In a dubious case, and generally speaking, licence to pass freely does not cease by the death of him, who has granted it; the successor however may for good reasons revoke it; but in such a case the person, to whom the passport has been granted ought to have notice given him, and the necessary time allowed him for betaking himself to a place of safety.
7. A safe conduct, granted during pleasure, imports of itself a continuation of safe conduct, till expressly revoked; for otherwise the will is supposed to subsist still the same, whatever time may be elapsed; but such a safe conduct expires, if the person, who has given it, is no longer in the employment, in virtue of which he was empowered to grant such security.
XIV. The redemption of captives is also a compact often made, without putting an end to the war. The antient Romans were very backward in the ransoming of prisoners. Their practice was to examine whether those, who were taken by the enemy, had observed the laws of military disipline, and consequently, whether they deserved to be ransomed. But the side of rigour generally prevailed, as roost advantageous to the republic.
XV. Yet in general it is more agreeable, both to the good of the state and to humanity, to ransom prisoners unless experience convinces us, that it is necessary to use that severity towards them, in order to prevent or redress greater evils, which would otherwise be unavoidable.
XVI. An agreement made for the ransom of a prisoner cannot be revoked, under a pretext, that he is found to be much richer than we imagined; for this circumstance, of the prisoner’s being more or less rich, has no relation to the engagement; so that if his ransom were to be settled by his worth that condition should have been specified in the contract.
XVII. As prisoners of war are not now made slaves, the captor has a right to nothing, but what he actually takes; hence money, or other things, which a prisoner has found means to conceal, certainly remain his property, and he may consequently make use of them to pay his ransom. The enemy cannot take possession of what they know nothing of; and the prisoner lies under no obligation to make a discovery of all his effects.
XVIII. There is also another question, whether the heir of a prisoner of war is obliged to pay the ransom, which the deceased had agreed upon? The answer is easy, in my opinion. If the prisoner died in captivity, the heir owes nothing, for the promise of the deceased was made upon condition, that he should be set at liberty; but if he was set at liberty before he died, the heir Is certainly chargeable with the ransom.
XIX. One question more is whether a prisoner, who was released on condition of releasing another, is obliged to return to prison, if the other dies before he has obtained his releasement? I answer, that the released prisoner is not obliged to return into custody, for that was not stipulated in the agreement; neither is it just that he should enjoy his liberty for nothing. He must therefore give an indemnification, or pay the full value of what he could not perform.
1. See the law of nature and nations book, viii. chap. vii. Sect. 9.