The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of public compacts, which put an end to war.
I. COMPACTS, which put an end to war, are either principals or accessories. Principals are those, which terminate the war, either by themselves, as a treaty of peace; or by a consequence of what has been agreed upon, as when the end of the war is referred to the decision of lot, to the success of a combat, or to the judgment of an arbitrator. Accessories are such, as are sometimes joined to the principal compacts in order to confirm them, and to render the execution of them more certain. Such are hostages, pledges, and guarantees.
II. We have already treated of single combats agreed on by both parties, and of arbitrators, considered as means of hindering or terminating a war; it now only remains, that we speak of treaties of peace.
III. The first question, which presents itself on this subject is whether compacts, which terminate a war, can be disannulled by the exception of an unjust fear, which has extorted them?
After the principles above established to show, that we ought to keep our faith given to an enemy, it is not necessary to prove this point again. Of all public conventions, treaties of peace are those, which a nation ought to look upon, as most sacred and inviolable, since nothing is of greater importance to the repose and tranquillity of mankind. As princes and nations have no common judge to take cognizance of their differences, and to decide concerning the justice of a war, we could never depend on a treaty of peace, if the exception of an unjust fear was in this case to be generally admitted. I say generally, for when the injustice of the conditions of the peace is highly evident, and the unjust conqueror abuses his victory so far, as to impose the hardest, crudest, and most intolerable conditions on the vanquished, the law of nations cannot authorise such treaties, nor lay an obligation on the vanquished tamely to submit to them. Let us also add, that, though the law of nations ordains, that, except in the case here mentioned, treaties of peace are to be faithfully observed, and cannot be disannulled, under a pretext of an unjust constraint; it is nevertheless certain, that the conqueror cannot in conscience take the advantage of such a treaty, and that he is obliged by internal justice, to restore all that he has taken in an unjust war.
IV Another question is, whether a sovereign, or a state, is obliged to observe treaties of peace, which they have made with their rebellious subjects? I answer, 1. that when a sovereign has reduced rebellious subjects by force of arms, he may deal with them as he sees best. 2. But if he has entered into an accommodation with them, he is thereby supposed to have pardoned them what is past; so that he cannot lawfully refuse to keep his word, under a pretext that he has given it to rebellious subjects. This obligation is so much the more inviolable, as princes are apt to give the name of rebellion to a resistance, by which the subject only maintains his just rights, and opposes the violation of the most essential engagements of sovereigns. History furnishes but too many examples of this kind.
V. None but he, who has the power of making war, has a right to terminate it by a treaty of peace. In a word, this is an essential part of sovereignty. But can a king, who is a prisoner, make a treaty of peace, which shall be valid, and binding to a nation? I think not, for there is no probability, that the people would have conferred the supreme power upon one, with a right to exercise it, even in matters of the greatest importance, at a time, when he is not master of his own person. But with respect to contracts, which a king, though a prisoner, has made concerning what belongs to him in private, they are certainly valid, according to the principles established in the preceding chapter. But what shall we say of a king, who is in exile? If he has no dependence upon any person, it is undoubtedly in his power to make peace.
VI. To know for certainty what things a king can dispose of by a treaty of peace, we need only consider the nature of the sovereignty, and the manner, in which he possesses it.
1. In patrimonial kingdoms, considered in themselves, nothing hinders but that the monarch may alienate the sovereignty, or a part of it.
2. But princes, who hold the sovereignty only In an usufructuary manner, cannot by any treaty alienate it, either in whole or in part. To render such alienations valid, the consent of the body of the people, or of the states of the kingdom, is necessary.
3. With respect to the crown domains, or the goods of the kingdom, it is not generally in the power of the sovereign to alienate them.
4. With regard to the effects of private subjects, the sovereign, as such, has a transcendental or supereminent right over the goods and fortunes of private men; consequently he may give them up, as often as the public advantage or necessity requires it; but with this consideration, that the state ought to indemnify the subject for the loss he has sustained beyond his own proportion.
VII. For the better interpretation of the articles of a treaty of peace, we need only attend to the general rules of interpretation, and the intention of the contracting parties.
1. In all the treaties of peace, if there be no clause to the contrary, it is presumed that the parties hold themselves reciprocally discharged from all damages, occasioned by the war. Hence the clauses of general amnesty are only for the greater precaution.
2. But the debts between individuals, contracted before the war, and the payment of which could not be exacted during the war, are not to be accounted forgiven by the treaty of peace.
3. Unknown injuries, whether committed before or during the war, are supposed to be comprehended in the general terms, by which we forgive the enemy the evil he has done us.
4. Whatever has been taken since the conclusion of the peace must certainly be restored.
5. If the time be limited, in which the conditions of peace are to be performed, it must be interpreted in the strictest sense; so that, when it is expired, the least delay is inexcusable, unless it proceeds from a superior force, or it manifestly appears, that it is owing to no bad design.
6. It is lastly to be observed, that every treaty of peace is of itself perpetual, and as it were eternal in its nature; that is to say, the parties are supposed to have agreed never to take up arms on account of the differences, which occasioned the, war, and for the future to look upon them as intirely at an end.
VIII. It is also important to know, when a peace may be looked upon as broken?
1. Some distinguish between breaking a peace and giving a new occasion of war. To break a peace is to violate an article of the treaty; but to give a new occasion of war is to take up arms for a new reason not mentioned in the treaty.
2. But when we give a new occasion of war in this manner, the treaty is by such means indirectly broken, if we refuse to make satisfaction for the offence; for then the offended having a right to take up arms, and to treat the offender as an enemy, against whom every thing is lawful, he must also certainly dispense with observing the conditions of the peace, though the treaty has not been formally broken with respect to its tenor, Besides, this distinction cannot be much used at present; because treaties of peace are conceived in such a manner, as to include an engagement to live for the future in good friendship, in all respects. We must therefore conclude, that every new act of unjust hostility is an infringement of the peace.
3. As to those, who only repel force by force, they by no means break the peace.
4. When a peace is concluded with several allies of him, with whom the treaty has been made, the peace is not broken, if one of those allies takes up arms, unless it has been concluded on that footing. But this is what cannot be presumed, and certainly they, who thus invade us without the assistance of others, shall be considered as the breakers of the peace.
5. Acts of violence or hostility, which some subjects may commit of their own accord, cannot break the peace, except we suppose, that the sovereign approves them; and this is presumed, if he knows the fact, has power to punish it, and neglects to do so.
1. The peace is supposed to be broken, when, without a lawful reason, acts of hostility are committed, not only against the whole body of the state, but also against private persons; for the end of a treaty of peace is, that every subject should, for the future, live in perfect security.
2. The peace is certainly broken by a contravention to the dear and express articles of the treaty. Some civilians however distinguish between the articles of great importance, and those of small importance. But this distinction is not only uncertain in itself, but also very difficult and delicate in its application. In general, all the articles of a treaty ought to be looked upon as important enough to be observed. We must however pay some regard to what is required by humanity, and rather pardon slight faults, than pursue the reparation of them by arms.
8. If one of the parties is, by an absolute necessity, reduced to an impossibility of performing his engagements, we are not for that to look upon the peace as broken; but the other party ought either to wait some time for the performance of what has been promised, if there be still any hope of it, or he may demand a reasonable equivalent.
9. Even when there is treachery on one side, it is certainly at the choice of the innocent party to let the peace subsist; and it would be ridiculous to pretend, that he, who first infringes the peace, can disengage himself from the obligation, which he lay under, by acting contrary to that very obligation.
IX. To treaties of peace, for the security of their execution, are sometimes joined hostages, pledges, and guarantees. Hostages are of several sorts; for they either give themselves voluntarily, or are given by order of the sovereign, or they are forcibly taken by the enemy. Nothing, for instance, is at present more common, than to carry off hostages for the security of contributions.
X. The sovereign may, in virtue of his authority, oblige some of his subjects to put themselves into the hands of the enemy as hostages; for if he has a right, when necessity requires it, to expose them to the danger of their lives, much more may he engage their corporal liberty. But on the other hand, the state ought certainly to indemnify the hostage for the losses they may have sustained for the good of the society.
XI. Hostages are demanded, and given, for the security of the execution of some engagement; therefore it is necessary, that they should be retained, in such a manner as shall be judged proper, till the performance of what has been agreed on. Hence it follows that an hostage, who has made himself such voluntarily, or he, who has been given by the sovereign, cannot make his escape. Grotius however grants this liberty to the latter; but his opinion does not seem to be well founded; for either it was the intention of the state, that the hostage should not remain in the hands of the enemy; or the state had not the power of obliging the hostage to remain. The former is manifestly false, for otherwise the hostage could be no security, and the convention would be illusive. Nor is the latter more true; for if the prince, in virtue of his transcendental property, can expose the lives of the citizens, why may he not engage their liberty? Thus Grotius himself agrees, that the Romans were obliged to return Clelia to Porsenna. But the case is not precisely the same with respect to hostages, taken by the enemy; for these have a right to make their escape, so long as they have not given their word to the contrary.
XII. It is a question often controverted, whether he, to whom hostages are given can pat them to death, in case the enemy do not perform their engagement? I answer, that hostages themselves cannot give the enemy any power over their lives, of which they are not master. As to the state, it has certainly the power of exposing the lives of the subjects, when the public good requires it. But in this case all, that the public good requires, is to engage the corporal liberty of the hostages; and they can no more be rendered responsible, at the peril of their lives, for the infidelity of the sovereign, than an innocent person can be treated as a criminal. Thus the state by no means engages the lives of hostages. He, to whom they are given, is supposed to receive them on these conditions; and though by the violation of the treaty they are at his mercy, it does not follow that he has a right to put them to death; he can only retain them as prisoners of war.
XIII. Hostages, given for a certain purpose, are free so soon, as that purpose is answered, and consequently cannot be detained upon any other account, for which no hostages were promised. But if we have broken our faith in any other case, or contracted a new debt, the hostages then may be detained, not as hostages, but in consequence of this rule of the law of nations, which authorizes us to detain the persons of subjects for the deeds of their sovereigns.
XIV. The query is, whether a hostage is at liberty by the death of the sovereign, who made the covenant? This depends on the nature of the treaty, for the security of which the hostage was given; that is to say, we must examine whether it be personal or real.
But if the hostage becomes successor to the prince, who gave him up, he is no longer obliged to be detained as an hostage, though the treaty be real; he ought only to put another in his place, whenever it is demanded. This case is supposed to be tacitly excepted; for it cannot be presumed, that a prince for example, who has given his own son and presumptive heir as an hostage, ever intended, that is case he should die, the state should be without its chief.
XV. Sometimes pledges are also given for the security of a treaty of peace; and as we have said that hostages may be detained for other debts, this may also be applied to pledges.
XVI. Another way in fine of securing peace is, when princes or states, especially those, who have been mediators of the peace, become guarantees, and engage their faith, that the articles shall be observed on both sides; which engagement of theirs implies an obligation of interposing their good offices, to obtain a reasonable satisfaction to the party injured contrary to treaty, and even of assisting him against the injurious aggressor.