The Law of War and Peace (1625)
by Hugo Grotius
On Implied Good Faith
I. How good faith may be tacitly interposed.
IT was well said by javolenus, that certain things are agreed to by silence; and this is found to be the case in public agreements, in private agreements, and in mixed agreements.
The reason is that consent, no matter how indicated and accepted, has the power of transferring a right. But there are also other signs of consent besides spoken and written words, as we have already more than once indicated. And certain signs by nature form a part of the act.
II. An example, in the case of a person who desires to be received under the protection of a people or a king.
An example may be found in the case of the person who comes either from the enemy or from a foreign country and entrusts himself to the good faith of another people or king. For there ought to be no doubt that such a person tacitly binds himself to do nothing against that government under which he seeks protection.
Consequently we ought not to follow those who say that the act of Zopyrus was free from blame; for his faithfulness toward his king did not excuse his treachery toward those to whom he had fled. The same should be said of Sextus, the son of Tarquin, who fled to Gabii. About Sinon Virgil says:
- Hear now the plots of Greeks, and from the crime of one
Learn to know all Greeks.
III. An example, in the case of one who asks or grants a parley.
Likewise the person who asks or grants a parley tacitly promises that it will be without hurt to those who take part in it.
Livy declares that the law of nations is violated by doing harm to the enemy under the pretense of a parley; he adds, that the good faith of a parley was treacherously violated (for the reading ‘through faith’ (per fidem) in that passage is faulty), because Gnaeus Domitius placed in chains Bituitus, king of the Averni, after Domitius had invited him to a pretended conference and had received him n hospitality. This judgement is passed on Domitius by Valerius Maximus: ‘His excessive desire for fame made him treacherous.’
Wherefore one must wonder why the writer of the eighth book of Caesar’s Gallic War, whether Hirtius or Oppius, in referring to a similar deed of Titus Labienus adds, ‘He judged that the faithlessness of this man,’ that is, Commius, ‘could be suppressed without any act of treachery,’ unless the explanation is that this is the opinion of Labienus rather than of the writer.
IV. Nevertheless he who asks or grants a parley is not hindered from promoting his own interests, provided that he does not harm the other party to the conference.
But that implied consent must not be extended beyond what I have said. For, provided that the parties to the conference suffer no harm, it is not treacherous, but reckoned among honorable artifices, to divert the enemy from warlike plans by the pretext of a parley, and in the meantime to promote one’s own advantage.
Those, therefore, who maintained that King Perseus was deceived by the hope of peace, took into consideration not so much right and good faith as highmindedness and warlike glory; and this can be well understood from what we have said concerning stratagems in war. Of the same general character was the ruse by which Hasdrubal saved his army from the Ausetanian defiles, and that by which Scipio Africanus the Elder learned the location of the camp of Syphax; both of these instances are related by Livy. Their example was followed by Lucius Sulla also in the Social War, near Esernia, as we read in ‘Frontinus.
V. Of mute signs which by custom have some meaning.
There are also certain mute signs which have a significance arising from custom. Such were in ancient times the use of fillets and olive branches; among the Macedonians the raising of spears, among the Romans the placing of shields over the heads,’ all signs of a suppliant surrender, which in consequence imposed the obligation to lay down arms. But whether one who indicates that he accepts such a surrender is under obligation, and how far, should be inferred from what I have said above.
At the present time white flags are the implied sign of a request for a parley; they will, therefore, be no less binding than if the parley had been requested by word of mouth.
VI. On the implied approval of a treaty compact.
How far a treaty compact made by generals ought to be considered as impliedly approved by the people or king, I have already stated above, to wit: when both the action was known and something was done or not done for which no other cause could be assigned except the wish to ratify the treaty.
VII. When a punishment is impliedly remitted.
The remission of a penalty cannot be inferred from the sole fact of its being disregarded. There is need, besides, of some such act as either in itself may show friendship, as a treaty of friendship, or such as will express so high an opinion of the virtue of the party subject to punishment that his previous deeds ought deservedly to be pardoned; whether that opinion is expressed in words, or through acts, which customarily have such significance.