The Law of War and Peace (1625)
by Hugo Grotius
On Good Faith of Private Persons in War
I. Refutation of the opinion, which holds that private persons are not bound by a pledge given to the enemy.
Sufficiently well known is this statement of Cicero: ‘Also if, under the pressure of circumstances, individuals have promised anything to the enemy, faith must be kept in that very matter.’ Whether the individuals are combatants or civilians-it matters not as regards keeping faith.
It is strange that legal authorities have been found who would teach that the obligation was binding when an agreement was made publicly with the enemy, but that agreements made by private persons were not binding in like manner. For since private citizens have private rights, which they can place under obligation, and enemies are capable of acquiring right, what can stand in the way of the obligation? Add that, unless this rule is established, opportunity is given for slaughter, an impediment is set to liberty. For captives in many cases will not be able to guard against the former, or to obtain the latter, if the good faith of private persons has been done away with.
II. It is shown that private persons are bound even to a pirate and a brigand; and to what extent.
Still further, not only is a pledge, which has been given to an enemy, recognized by the law of nations, but also a pledge to a brigand or to a pirate, just as we have said above in regard to public faith. There is this difference, that if an unjust fear inspired by the other has induced the promise the promisor can demand restitution, or if the other party is unwilling to make restitution he can take it; such a procedure has no place in case of a fear arising from a public war, according to the law of nations.
If an oath also has been added to the promise, then what has been promised will have to be made good by the promisor, if he wishes to avoid the crime of perjury. If such a perjury has been committed against a public enemy, men are accustomed to punish it; but if against brigands or pirates, it is overlooked, because of the hatred of those whose interest is at stake.
III. No exception is here made for a minor.
Also in this aspect of the good faith of private persons we shall make no exception for a minor who has sufficient intelligence to understand his act. For the privileges which favor minors arise from municipal law, but we are treating of the law of nations.
IV. Whether an error gives release.
Also as regards an error, we have said elsewhere that it gives the right to withdraw from an agreement only if that which was erroneously believed had the force of a condition in the mind of the promisor.
V. Answer to the objection raised from the point of view of public advantage.
1. It is more difficult to decide how far the power of individuals may extend in making an agreement. That public property cannot be alienated by an individual is well established. For if this right is not permitted even to generals in war, as I have just shown, still less will it be permitted to private citizens. But in regard to their own acts and property the question can be raised because it is evident that these also cannot be put at the service of the enemy without some degree of damage. For this reason such agreements on the part of citizens may seem unlawful on account of the state’s right of eminent domain, and on the part of enrolled soldiers on account of their military oath.
2. It must be understood, however, that agreements which avoid a greater or more certain evil ought to be considered advantageous rather than harmful to the public interest, because a lesser evil assumes the appearance of an advantage. ‘ Of evils one ought to choose the lesser,’ a certain speaker says in Appian. In fact neither an act of sincere good faith, by which one does not yield absolute power over himself and his possessions, nor the public advantage without the authority of law, can render void and deprive of all legal effect that which has been done, even if it is granted that this was done contrary to duty.
3. A law may indeed deprive either permanent or temporary subjects of such power. But the law does not always do this, because it spares the citizens; and it cannot do this in all cases, for the reason that human laws, as I have said elsewhere, have the power of imposing obligation only if they have been passed in a humane manner, and not if they impose a burden which is plainly inconsistent with reason and nature. And so special ordinances and orders, which openly claim some such right, ought not to be considered as laws. Moreover, general laws ought to be received with so benevolent an interpretation as to exclude misfortunes arising from extreme necessity.
4. But if the act of the private person, which had been forbidden by law or by an order and prevented from becoming valid, could rightly have been forbidden, then the act of the individual would be void. Nevertheless he could be punished on this account, because he promised what was not within his right; and especially, if he promised it on oath.
VI. The previous statements are applied to a pledge given of return to prison.
The Promise of a captive to return to prison is properly allowable; for it does not render the condition of the captive worse. Therefore Marcus Atilius Regulus did not merely act nobly, as some think, but also as his duty required. Cicero says: ‘ It was the duty of Regulus not to disturb by perjury the conditions and agreements of war.’ And no obstacle to his return was presented by this consideration:
- But yet he knew what tortures
The barbarous executioner was making ready;
for he had known when he made the promise that this might happen. Likewise, also, of the ten captives, as Gellius tells the story from ancient authors, ‘ Eight replied that they had no right to postliminy, since they were bound by oath.’
VII. The pledge not to return to a certain place; the pledge not to serve as a soldier.
1. It is also customary for prisoners to promise not to return to a certain place, and not to take up arms against the one who had them in his power. An example of the former kind of pledge is found in Thucydides, where the people of Ithome promise the Lacedaemonians that they will leave the Peloponnesus never to return.
Instances of the second kind of pledge are now frequent. An ancient example is to be found in Polybius, where the Numidians are released by Hamilcar on the condition that none of them will bear hostile arms against the Carthaginians. Procopius a in the Gothic War records a similar agreement.
2. Some writers declare such an agreement void, because it is contrary to the duty due to the country of allegiance. But whatever is contrary to duty is not at once also void, as I have said just above and elsewhere. Then, too, it is not contrary to duty to obtain liberty for oneself by promising what is already in the hands of the enemy. The cause of one’s country is, in fact, none the worse thereby, since he who has been captured must be considered as having already perished, unless he is set free.
VIII. The pledge not to run away.
Some prisoners also promise not to run away. Contrary to the opinion of certain writers, such a pledge is binding on them, even though they made the promise when in chains. For in this way either lives are ordinarily saved, or milder captivity secured. If, however, the prisoner shall be put in chains afterward, then he will be released from the promise, if it was made on the condition that he should not be put in chains.
IX. One who has been captured cannot surrender to another.
Rather foolishly the question is raised, whether one who has been captured can surrender to another.
It is quite certain that no one by his own agreement can take away a right gained by another. But the captor has gained a right, either by the law of war alone, or partly by the law of war and partly by the consent of him who is waging the war, as I have explained above.
X. Whether private persons should be compelled by their rulers to carry out what they have promised.
Regarding the effect of agreements an important question is, whether private persons, in case they are negligent, ought to be compelled by their rulers to fulfil their promises.
It is nearer the truth to say that they should be compelled to do so only in regular warfare, on account of the law of nations by which those who wage war are bound to render justice to each other, even in regard to the acts of individuals; a case in point would be if envoys of the enemy should be injured by private citizens.
Thus, according to the statement of Gellius, Cornelius Neaps wrote that many in the senate voted that those of the ten captives who were unwilling to return should be put under guard and taken back to Hannibal.
XI. What kind of an interpretation ought to be applied in agreements of this sort.
In the matter of interpretation, the rules should be observed which have already been mentioned several times, to wit: that we should not depart from the natural meanings of the words except in order to avoid an absurdity, or from some quite satisfactory surmise as to the intention; and that in case of doubt we should be more inclined to interpret the words against the one who made the condition.
XII. In what way we are to interpret the terms life, clothing, and the arrival of aid.
One who has made an agreement regarding his life does not have the right to liberty also.
Arms are not included under the term clothing; for these are different things.
Aid is rightly said to have arrived if it is in sight, although it is doing nothing; for its very presence has an influence.
XIII. Who ought to be said to have returned to the enemy.
One who has returned secretly, so as to depart immediately, will not be said to have returned to the enemy. For returning ought to be understood as coming a second time under the power of the enemy.
Cicero held the opposite interpretation to be disingenuous and foolishly crafty, since it involves deceit and perjury. Gellius called it fraudulent cleverness, branded with disgrace by the censor; and he characterizes those who had practiced it as odious and detestable.
XIV. What are adequate reinforcements in the case of a surrender made conditionally?
In the case of an agreement to surrender,’ which shall not hold if adequate reinforcements have arrived, the reinforcements ought to be understood to be such as will cause the danger to cease.
XV. Whatever pertains to the execution of an agreement does not constitute a condition.
This also must be noted, that if any covenant has been made regarding the method of execution this adds no condition to the agreement. The case is as if they said that payment is to be made in a certain place, which afterward changed ownership.
XVI. Regarding hostages given for such agreements.
In regard to hostages the position must be maintained which we stated above, that in most cases they are merely accessory to the principal act. Nevertheless the agreement can be so made that the obligation shall present an alternative, that is, either that something shall be done, or that the hostage shall be retained. But in case of doubt we must maintain what is most natural, that is, that the hostages shall be believed to be only accessory.