The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of compacts made with an enemy by private persons.
I. IT sometimes happens in war, that private persons, whether soldiers or others, make compacts with an enemy. Cicero justly remarks, that, if a private person, constrained by necessity, has promised any thing to the enemy, he ought religiously to keep his word.1
II. And indeed all the principles hitherto established manifestly prove the justice and necessity of this duty. Besides, unless this be allowed, frequent obstacles would be put to liberty, and an occasion given for massacres, etc.
III. But, though these compacts are valid in themselves, yet it Is evident, that no private person has a right to alienate public property; for this is not allowed even to generals of armies.
IV. With respect to the actions and effects of each individual, though the covenants made with the enemy on these affairs may sometimes be prejudicial to the state, they are binding nevertheless. Whatever tends to avoid a greater evil, though detrimental in itself, ought to be considered as a public good; as for example, when we promise to pay certain contributions to prevent pillage, or the burning of places, etc. Even the laws of the state cannot without injustice, deprive individuals of the right of providing for their own safety, by imposing too burdensome an obligation on the subjects, intirely repugnant to nature and reason.
V. It is in consequence of these principles, that we think a captive bound to perform the promise he has made of returning to prison. Without this he would not be suffered to go home; and it is certainly better for him, and for the state, that he should have this permission for a time, than that he remain always in captivity. It was therefore to fulfil his duty, that Regulus returned to Carthage, and surrendered himself into the hands of the enemy.2
VI. We must judge, in like manner, of the promise, by which a prisoner engages not to bear arms against the releaser. In vain would it be objected, that such an engagement is contrary to the duty, we owe to our country. It is no way contrary to the duty of a good citizen to procure his liberty by promising to forbear a thing, which it is in the enemy’s power to hinder. His country loses nothing by that, but rather gains; since a prisoner so long as he is not released, is as useless to it, as if he were really dead.
VII. If a prisoner has promised not to make his escape, he ought certainly to keep his word; even though he was in fetters when he made it. But if a person has given his word, on condition that he should not be confined in that manner, he may break it, if he be laid in irons.
VIII. But here some will ask, whether private men, upon refusing to perform what they have promised to the enemy, may be compelled to it by the sovereign? I answer, certainly; otherwise it would be to no purpose, that they were bound by a promise, if no one could compel them to perform it.
1. De Offic. lib. i. cap. x. ii.
2. Cicer. de Offic. lib. iii. cap. xxix.