The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of compacts made during the war, by subordinate powers, as generals of armies, or other commanders.
I. ALL, that has been hitherto said, concerning compacts between enemies, relates to those made by sovereign powers. But since princes do not always conclude such agreements themselves, we must now inquire into treaties made by generals, or other inferior commanders.
II. In order to know whether these engagements oblige the sovereign, the following principles will direct us.
1. Since every person may enter into an engagement, either by himself or by another, it is plain that the sovereign is bound by the compacts made by his ministers or officers, in consequence of the full powers and orders expressly given them.
2. He, who gives a man a certain power, is reasonably supposed to have given him whatever is a necessary consequence and appendage of that power, and without which it cannot be exercised. But he is not supposed to have granted him any thing further.
3. If he, who has had a commission to treat, has kept within the bounds of the power annexed to his office, though he acts contrary to his private instructions, the sovereign is to abide by what he has done; otherwise we could never depend on engagements contracted by proxy.
4. A prince is also obliged by the act of his ministers and officers, though done without his orders, if he has ratified the engagements they have made, either by an express consent, and then there is no difficulty, or in a tacit manner; that is to say, if, being informed of what has passed, he yet permits things to be done, or does them himself, which cannot be reasonably referred to any other cause, than the Intention of executing the engagement of his ministers, though contracted without his participation.
5. The sovereign may also be obliged to execute the engagements contracted by his ministers without his orders, by the law of nature, which forbids us to enrich ourselves at another’s expense. Equity requires, that in such circumstances we should exactly observe the conditions of the contract, though concluded by ministers, who had not full powers.
6. These are the general principles of natural equity, in virtue of which sovereigns may be more or less obliged to stand to the agreement of their ministers. But to what has been said, we must add this general exception, unless the laws and customs of the country have regulated it otherwise, and these be sufficiently known to the persons, with whom the agreement is made.
7. Lastly, if a public minister exceeds his commission, so that he cannot perform what he has promised, and his master is not obliged to it, he himself is certainly bound to indemnify the person, with whom he has treated. But if there should be any deceit on his part, he may be punished for it, and his person, or his goods, or both are liable to be seized, in order to make a recompense.
III. Let us apply these general principles to particular examples.
1. A commander in chief cannot enter into a treaty, that regards the causes and consequences of the war; for the power of making war, in whatever extent it has been given, does not imply the power of finishing it.
2. Neither does it belong to generals to grant truces for a considerable space of time; for 1. that does not necessarily depend on their commission. 2. The thing is of too great consequence to be left intirely to their discretion. 3. And lastly circumstances are not generally so pressing, as not to admit of time to consult the sovereign; which a general ought to do, both in duty and prudence, as much as possible, even with respect to things, which he has a power to transact of himself.
Much less therefore can generals conclude those kinds of truces, which withdraw all the appearance of war, and come very near a real peace.
3. With respect to truces of a short duration, it is certainly in the power of a general to make them; for example to bury the dead, etc.
IV. Lieutenant generals, or even inferior commanders, may also make particular truces, during the attack, for instance, of a body of the enemy intrenched, or in the siege of a town; for this being often very necessary, it is reasonably presumed, that such a power must needs be included in the extent of their commission.
V. But a question here arises, whether these particular truces oblige only the officers, who granted them, and the troops under their command, or whether they bind the other officers, and even the commander in chief? Grotius declares for the first opinion, though the second appears to me the best founded; for 1. since we suppose, that it is in consequence of the tacit consent of the sovereign, that such a truce has been granted by an inferior commander, no other officer, whether equal or superior, can break the agreement, without indirectly wounding the authority of the sovereign.
2. Besides, this would lay a foundation for fraud and distrusts, which might tend to render the use of truces, so necessary on several occasions, useless and impracticable.
VI. It does not belong to a general to release persons taken in war, nor to dispose of conquered sovereignties and lands.
VII. But it is certainly in the power of generals to grant, or leave things, which are not as yet actually possessed; because in war many cities, for example, and often men, surrender themselves, upon condition of preserving their lives and liberties, or sometimes their goods; concerning which the present circumstances do not commonly allow time sufficient to consult the sovereign. Inferior commanders ought also to have this right, concerning things within the extent of their commission.
VIII. In fine, by the principles here established, we may easily judge of the conduct of the Roman people, with respect to Bituitus king of the Arverni, and to the affair of the Caudine Forks.