The Law of War and Peace (1625)
by Hugo Grotius
On the Good Faith of Subordinate Powers in War
I. The kinds of military leaders.
As one form of public agreement, Ulpian reckons this: ‘Whenever the leaders of the war make agreements with each other.’
I have said that after considering the good faith pledged by the highest authorities I must treat of that which subordinate officials pledge to one another, or to others. Either the subordinate officials are next to the highest authority, such as have properly been called generals, to whom this expression of Livy must be applied, ‘And we recognize as a general only the officer under whose auspices the war is waged’; or they are officers of lower rank, whom Caesar distinguishes as follows: ‘A lieutenant-general (legatus) has one set of duties, a commander-in-chief (imperator) another. The one ought to carry out orders; the other, to deliberate freely on the conduct of the whole campaign.’
II. How far an agreement made by military leaders is binding on the supreme authority.
In dealing with the promises of military leaders the subject must be viewed under two aspects; for the question is raised whether such promises impose a binding obligation on the supreme authority, or only on the leaders themselves.
The first point should be settled in accordance with the principle which I have elsewhere stated,” that an obligation is imposed on us also by the person whom we have chosen as agent to execute our wishes, whether our wishes have been stated in express terms or are inferred from the nature of the responsibility. For the one who grants a power grants the means necessary for the exercise of that power, so far as he possesses them; and this ought to be understood morally in matters pertaining to morals. In two ways, therefore, subordinate authorities will be able to bind the supreme authority by their actions, either by doing that which is thought on probable grounds to lie within their field of duty, or even outside their field of duty, in accordance with a special responsibility, known to the public, or to those whose interest in the matter is at stake.
III. How far such an agreement furnishes occasion for an obligation.
There are also other ways in which the supreme authority is obligated by a previous act of its agents, but not in such a way that this act should be, properly speaking, a cause, but rather an occasion, of obligation. This may happen in two ways, either by consent, or by reason of the act itself. Consent is revealed by ratification, not only express but also implied, that is, when the supreme authority knew what had been done and permitted the accomplishment of the acts, which cannot with probability be referred to another cause. We have explained elsewhere how this matter proceeds.
By reason of the thing itself states are bound to this extent, that they should not become richer through another’s loss, that is, that they should either carry out the agreement, from which they wish to acquire gain, or renounce the gain. In regard to this principle of equity, also, I have spoken elsewhere. And to this extent, and not beyond, can we accept the maxim, that whatever has been done to our advantage is valid. On the contrary those cannot be acquitted of injustice who disapprove of the agreement and yet retain what they would not have had without the agreement. Such a case arose when, as Valerius Maximus relates, the Roman senate was unable to approve of the act of Gnaeus Domitius, and yet was not willing to disavow it. Many such instances occur in history.
IV. What, if anything, has been done contrary to instructions? Herein distinctions are presented.
1. Also we must repeat what has been said above, that whoever has appointed an agent is bound, even if the agent, while yet within the limits of his public function, has acted contrary to secret instructions.
This rule of equity was rightly followed by the Roman praetor in an action relating to agents, that not everything done by an agent is, in fact, binding on the one who appointed him, but only that which, within the limits of his responsibility, was done in the interest of the principal. If now public notice has been given, that agreements should not be made with him, then he will not be considered as an agent. If, however, the notice has been given, but is not generally known, the one who appointed the agent is bound.
Also the conditions of the appointment must be observed. For if any one has wished that an agreement be made under a certain condition, or with the intervention of a certain person, it will be most, fair that the conditions under which the agent received his appointment shall be observed.
2. The consequence of this is, that some kings or peoples are put under greater obligation by the agreements of their military leaders, others under less, in case their laws and customs are adequately known. But if there is doubt on these points we must follow the line of inference, in such a way as to understand that that is conceded without which there can be no proper discharge of responsibility on the part of the official.
3. If a lesser official has exceeded the limit of his instructions, in case he is unable to make good what he has promised, he will himself be liable for the equivalent of the loss, unless such recovery is precluded by some law sufficiently well known. But if in addition there is deceit, that is, if the official pretended to have greater power than he did have, he will then both be liable for the loss caused by his fault and also, on account of his criminal conduct, he will be subject to a penalty commensurate with the crime. In the former case his property is liable, and, if that is not sufficient, also his work, or the liberty of his person. In the second case his person, or his property, or both are liable, according to the magnitude of the crime.
Moreover, what we have said regarding deceit will be in point, even if any one has declared beforehand that he is unwilling to make himself liable, because the debt due both for the loss occasioned and as a just penalty is associated with the offence by a natural and not by a voluntary connection.
V. Whether in such a case the other party will be under obligation.
But since either the supreme authority, or its agent, is always bound, this also is certain, that the other party to the agreement is under obligation, and it cannot be said that the agreement is one-sided.
We are done with the relation of lesser officials to their superiors.
VI. What generals or magistrates are able to do with regard to those of lower rank, or on behalf of them.
Let us see also what higher officials are able to do with regard to those of lower rank.
We ought not, I think, to doubt that a general may place a binding obligation on his soldiers, or magistrates on their fellow townsmen, within the limits of those powers which they are accustomed to exercise; beyond those limits, consent would be necessary.
On the other hand, a compact of a commander or of a magistrate will, in general, be advantageous to those of lower rank in respect to matters merely expedient; such arrangements, in fact, are sufficiently understood as in their power. In respect to conditions which have a burden attached, the obligation is absolute within those rights which they are accustomed to exercise, but, beyond those, only if accepted.
These provisions are in accord with the principles which we have elsewhere discussed, growing out of the law of nature regarding a stipulation in behalf of a third party. The general statements will now be made clearer by the presentation of particular instances.
VII. Generals do not have the power to make peace.
It does not fall within the province of the general to conduct negotiations with regard to the causes or the consequences of a war;’ the terminating of war is, in fact, not a part of the waging of it. Even though the general has been placed in command with absolute power, that must be understood to apply only to the conduct of the war. The reply of Agesilaus to the Persians was ‘The right of decision regarding peace belongs to the state.’ Sallust says that the senate rescinded the peace which Aulus Albinus had made with king jugurtha, because he had made it without the authority of the senate.
Also we find in Livy: ‘How will that peace be valid which we shall have concluded without the authority of the senate, without the decree of the Roman people? ‘ For that reason the Caudine agreement and the agreement in regard to Numantia did not bind the Roman people, as I have explained elsewhere. And up to this point the statement of Posthumius is correct: ‘If there is anything which can be made a binding obligation on the people, all things can ‘; that is to say, things which do not belong to the conduct of warfare. That this is the meaning is shown by the preceding statements concerning surrender, concerning an agreement to abandon or to burn a city, and concerning a change in the form of government.
VIII. Whether generals may make a truce; herein a distinction.
Not only generals in command but also officers of lower rank have the power to make a truce, but only with those against whom they are fighting, or whom they are holding in a state of siege. This applies only to themselves and to their troops; for other officers of equal rank are not- bound by such a truce, as is clear from the story of Fabius and Marcellus in Livy.
IX. What security of persons, and what property, can be given by generals.
1. Likewise it is not within the province of generals to dispose of men, dominions, and territories taken in war.
In accordance with this law Syria was taken away from Tigranes, although Lucullus had given it to him. In regard to Sophonisba, who had been captured in war, Scipio said that the judgement and will of the senate and the Roman people would decide; and so freedom could not be given to her by Masinissa, the general by whom she had been captured. Over other matters, which fall under the head of booty, we see that some rights are granted to commanders, not so much by reason of the strength of their authority as by the customs of each people. But in regard to that subject we have said enough previously.
2. However, it is quite within the power of generals to grant things which have not yet been taken, because in many cases towns and men surrender in war on the condition of preserving their lives, or of keeping also their liberty or even their property. In such matters circumstances generally do not afford opportunity to request the decision of the sovereign authority.
For a like reason this right ought to be granted also to commanders not of the highest rank, within the limits of the matters entrusted to their administration. When Hannibal was far away, Maharbal had promised to certain Romans, who had escaped from the battle near Trasimenus, not only their lives-‘ their safety,’ as Polybius too concisely remarks-but also, if they should have given up their weapons, the privilege of departing with one suit of clothes each. But Hannibal detained them, alleging that ‘it was not in the power of Maharbal, without consulting him, to give to those who surrendered his pledge that he would leave them uninjured and unharmed.” The judgement of Livy on this act is, ‘The pledge was kept by Hannibal with Punic faith.’
3. Consequently, in the case of Rabirius we ought to consider Cicero as a lawyer and not as a judge. He maintains that Rabirius had rightly killed Saturninus, whom the consul Gaius Marius had persuaded to leave the Capitol by giving a pledge to him. ‘How could a pledge be given,’ says Cicero, ‘without a decree of the senate? ‘ And so he treats the matter as if that pledge bound Marius only. But Gaius Marius had received authority by a decree of the senate to see to it that the sovereignty and majesty of the Roman people should be preserved. In this power, which according to Roman custom was the highest,’ who would deny that the right of granting immunity was included, if in that way every peril might be warded off from the state?
X. Such agreements should be interpreted narrowly; and why.
For the rest, in dealing with the agreements made by generals, because these are concerned with a matter outside their field, the interpretation must be restricted so far as the nature of the agreement allows, lest indeed by their act either the sovereign power be obligated to a greater degree than it wishes, or they themselves suffer injury in the discharge of their duty.
XI. How a surrender accepted by a general is to be interpreted.
In consequence, one who is received in unconditional surrender by a general is considered to have been received on such terms that the decision in regard to him belongs to the victorious people or king. There is an example of this in the case of Genthius, king of Illyria, and in that of Perseus, king of Macedonia; the former surrendered to Anicius, the latter to Paulus.
XII. How to understand the proviso, ‘if the king or the people has approved.’
Thus the added proviso, ‘Let this be valid, in case the Roman people shall have ratified it,’ which is often found in treaty compacts, will have the effect that, if the ratification does not follow, the general will himself in no respect be bound, unless in some way he has thereby been made richer.
XIII. How to understand the promise to surrender a town.
Also those who have promised to surrender a town can allow the garrison to withdraw, as we read that the Locrians did.