The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Of Various Conventions Made During the Course of the War
§ 233. Truce and suspension of arms.
WAR would become too cruel and destructive, were all intercourse between enemies absolutely broken off. According to the observation of Grotius,1 there still subsists a friendly intercourse in war, as Virgil2 and Tacitus3 have expressed it. The occurrences and events of war lay enemies under the necessity of entering into various conventions. As we have already treated in general of the observance of faith between enemies, it is unnecessary for us in this place to prove the obligation of faithfully acting up to those conventions made in war: it therefore only remains to explain the nature of them. Sometimes it is agreed to suspend hostilities for a certain time; and, if this convention be made but for a very short period, or only regards some particular place, it is called a cessation or suspension of arms. Such are those conventions made for the purpose of burying the dead after an assault or a battle, and for a parley, or a conference between the generals of the hostile armies. If the agreement be for a more considerable length of time, and especially if general, it is more particularly distinguished by the appellation of a truce. Many people use both expressions indiscriminately.
§ 234. Does not terminate the war.
The truce of suspension of arms does not terminate the war; it only suspends its operations.
§ 235. A truce is either partial or general.
A truce is either partial or general. By the former, hostilities are suspended only in certain places, as between a town and the army besieging it. By the latter, they are to cease generally, and in all places, between the belligerent powers. Partial truces may also admit of a distinction with respect to acts of hostility, or to persons; that is to say, the parties may agree to abstain from certain acts of hostility during a limited time, or two armies may mutually conclude a truce or suspension of arms without regard to any particular place.
§ 236. General truce for many years.
A general truce, made for many years, differs from a peace in little else than in leaving the question which was the original ground of the war still undecided. When two nations are weary of hostilities, and yet cannot agree on the point which constitutes the subject of their dispute, they generally have recourse to this kind of agreement. Thus, instead of peace, long truces only have usually been made between the Christians and the Turks, sometimes from a false spirit of religion; at other times, because neither party were willing to acknowledge the other as lawful owners of their respective possessions.
§ 237. By whom these agreements may be concluded.
It is necessary to the validity of an agreement, that it be made by one who possesses competent powers. Every thing done in war is done by the authority of the sovereign, who alone has the right of both of undertaking the war, and directing its operations, (§ 4) But, from the impossibility of executing every thing by himself he must necessarily communicate part of his power to his ministers and officers. The question, therefore, is, to determine what are the things of which the sovereign reserves the management in his own hands, and what those are which he is naturally presumed to intrust to the ministers of his will, to the generals and other officers employed in military operations. We have above (Book II. § 207) laid down and explained the principle which is to serve as a general rule on this subject. If the sovereign has not given any special mandate, the person commanding in his name is held to be invested with all the powers necessary for the reasonable and salutary exercise of his functions, for every thing which naturally follows from his commission. Every thing beyond that is reserved to the sovereign, who is not supposed to have delegated a greater portion of his power than is necessary for the good of his affairs. According to this rule, a general truce can only be concluded by the sovereign himself, or by some person on whom he has expressly conferred a power for that purpose. For, it is by no means necessary to the success of the war, that a general should be invested with such an extensive authority: it would exceed the limits of his functions, which consist in directing the military operations in the place where he has the command, and not in regulating the general interests of the state. The conclusion of a general truce is a matter of so high importance, that the sovereign is always presumed to have reserved it in his own hands. So extensive a power suits only the viceroy or governor of a distant country, for the territories under him; and even in this case, if the truce be for a number of years, it is natural to suppose the sovereign’s ratification necessary. The Roman consuls, and other commanders, had a power to grant general truces for the term of their commission; but, if that term was considerable, or the truce made for a longer time, it required the ratification of the senate and people. Even a partial truce, when for a long time, seems also to exceed the ordinary powers of a general; and he can only conclude it under a reservation of its being ratified by the sovereign authority.
But, as to partial truces for a short period, it is often necessary, and almost always proper, that the general should have a power to conclude them: it is necessary, when he cannot wait for the sovereign’s consent; it is proper on those occasions when the truce can only tend to spare the effusion of blood, and to promote the mutual advantage of the contracting parties. With such a power, therefore, the general or commander in chief is naturally supposed to be invested. Thus, the governor of a town, and the general besieging it, may agree on a cessation of arms, for the purpose of burying the dead, or of coming to a parley: they may even settle a truce for some months on condition that the town, if not relieved within that time, shall surrender, etc. Conventions of this kind only tend to mitigate the evils of war, and are not likely to prove detrimental to any one.
§ 238. The sovereign’s faith engaged in them.
All these truces and suspensions of arms are concluded by the authority of the sovereign, who consents to some of them in his own person, and to others through the ministry of his generals and officers. His faith is pledged by such agreements, and he is bound to enforce their observance.
§ 239. When the truce begins to be obligatory.
The truce binds the contracting parties from the moment of its being concluded, but cannot have the force of a law, with regard to the subjects on both sides, till it has been solemnly proclaimed: and, as an unknown law imposes no obligation, the truce does not become binding on the subjects until duly notified to them. Hence, if, before they can have obtained certain information of its being concluded, they commit any act contrary to it any act of hostility they are not punishable. But, as the sovereign is bound to fulfill his promises, it is incumbent on him to cause restitution to be made of all prizes taken subsequent to the period when the truce should have commenced. The subjects, who, through ignorance of its existence, have failed to observe it, are not obliged to offer any indemnification, any more than their sovereign, who was unable to notify it to them sooner; the non-observance of the truce, in this case, is merely an accident, not imputable to any fault on his part or on theirs. A ship being out at sea at the time when the truce is published, meets with a ship belonging to the enemy, and sinks her: as there is no guilt in this case, she is not liable to pay any damage. If she has made a capture of the vessel, all the obligation she lies under is to restore the prize, as she must not retain it in violation of the truce. But those who should, through their own fault, remain ignorant of the publication of the truce, would be bound to repair any damage they had caused, contrary to its tenor. The simple commission of a fault, and especially of a slight one, may, to a certain degree, be suffered to pass with impunity; and it certainly does not deserve to be punished with equal severity as a premeditated transgression: but it furnishes no plea against the obligation to repair the damages accruing. In order, as far as possible, to obviate every difficulty, it is usual with sovereigns, in their truces as well as in their treaties of peace, to assign different periods for the cessation of hostilities, according to the situation and distance of places.
§ 240. Publication of the truce.
Since a truce cannot be obligatory on the subjects unless known to them, it must be solemnly published in all the places where it is intended that it should be observed.
§ 241. Subjects contravening the truce.
If any of the subjects, whether military men or private citizens, offend against the truce, this is no violation of the public faith; nor is the truce thereby broken. But the delinquents should be compelled to make ample compensation for the damage, and severely punished. Should their sovereign refuse to do justice, on the complaints of the party injured, he thereby becomes accessory to the trespass, and violates the truce.
§ 242. Violation of the truce.
Now, if one of the contracting parties, or any person by his order, or even with his simple consent, commits any act contrary to the truce, it is an injury to the other contracting party: the truce is dissolved; and the injured party is entitled immediately to take up arms, not only for the purpose of renewing the operations of the war, but also of avenging the recent injury offered to him.
§ 243. Stipulation of a penalty against the infractor.
Sometimes a penalty on the infractor of the truce is reciprocally stipulated; and then the truce is not immediately broken on the first infraction. If the party offending submits to the penalty, and repairs the damage, the truce still subsists, and the offended party has nothing further to claim. But, if an alternative has been agreed on, viz. that, in case of an infraction, the delinquent shall suffer a certain penalty, or the truce shall be broken, it is the injured party who has the choice of insisting on the penalty or taking advantage of his right to recommence hostilities: for, if this were left at the option of the infractor, the stipulation of the alternative would be nugatory, since, by refusing to submit to the penalty simply stipulated, he would break the compact, and thereby give the injured party a right to take up arms again. Besides, in cautionary clauses of this kind, the alternative is not supposed to be introduced in favor of him who fails in his engagements; and it would be absurd to suppose that he reserves to himself the advantage of breaking them by his infraction rather than undergo the penalty. He might as well break them at once openly. The only object of the penal clause is to secure the truce from being so easily broken; and there can be no other reason for introducing it with an alternative, than that of leaving to the injured party a right, if he thinks fit, to dissolve a compact from which the behavior of the enemy shows him he has little security to expect.
§ 244. Time of the truce.
It is necessary that the time of the truce be accurately specified, in order to prevent all doubt or dispute respecting the period of its commencement, and that of its expiration. The French language, extremely clear and precise, for those who know how to use it with propriety, furnishes expressions which bid defiance to the most subtle chicanery. The words “inclusively” and “exclusively” banish all ambiguity which may happen to be in the convention, with regard to the two terms of the truce its beginning and end. For instance, if it be said that “the truce shall last from the first of March inclusively, until the fifteenth of April, also inclusively,” there can remain no doubt; whereas, if the words had simply been, “from the first of March until the 15th of April,” it might be disputed whether those two days, mentioned as the initial and final terms of the truce, were comprehended in the treaty or not: and indeed authors are divided on this question. As to the former of those two days, it seems, beyond all question, to be comprised in the truce: for, if it be agreed, that there shall be a truce from the first of March, this naturally means that hostilities shall cease on the first of March. As to the latter day, there is something more of doubt, the expression “until” seeming to separate it from the time of the armistice. However, as we often say “until” such a day “inclusively,” the word “until” is not necessarily exclusive, according to the genius of the language. And as a truce which spares the effusion of human blood, is no doubt a thing of a favorable nature, perhaps the safest way is to include in it the very day of the term. Circumstances may also help to ascertain the meaning: but it is very wrong not to remove all ambiguity, when it may be done by the addition of a single word.
In national compacts, the word “day” is to be understood of a natural day, since it is in this meaning that a day is the common measure of time among nations. The computation by civil days owes its origin to the civil law of each nation, and varies in different countries. The natural day begins at sunrise, and lasts twenty-four hours, or one diurnal revolution of the sun. If, therefore, a truce of a hundred days be agreed on, to being on the first of March, the truce begins at sunrise on the first of March, and is to continue a hundred days of twenty-four hours each. But, as the sun does not rise at the same hour throughout the whole year, the parties, in order to avoid an overstrained nicety, and a degree of chicanery unbecoming that candor which should prevail in conventions of this kind, ought certainly to understand that the truce expires, as it began, at the rising of the sun. The term of a day is meant from one sun to the other, without quibbling or disputing about the difference of a few minutes in the time of his rising. He who, having made a truce for a hundred days, beginning on the twenty-first of June, when the sun rises about four o’clock, should, on the day the truce is to end, take up arms at the same hour, and surprise his enemy before sunrise, would certainly be considered as guilty of a mean and perfidious chicanery.
If no term has been specified for the commencement of the truce, the contracting parties, being bound by it immediately on its conclusion (§ 239), ought to have it published without delay, in order that it may be punctually observed: for, it becomes binding on the subjects only from the time when it is duly published with respect to them (Ibid.); and it begins to take effect only from the moment of the first publication, unless otherwise settled by the terms of the agreement.
§ 245. Effects of a truce, what is allowed, or not, during its continuance. 1st Rule: Each party may do at home what they have a right to do in time of peace.
The general effect of a truce is that every act of hostility shall absolutely cease. And, in order to obviate all dispute respecting the acts which may be termed hostile, the general rule is, that, during the truce, each party may, within his own territories, and in the places where he is master, do whatever he would have a right to do in time of profound peace. Thus, a truce does not deprive a sovereign of the liberty of levying soldiers, assembling an army in his own dominions, marching troops within the country, and even calling in auxiliaries, or repairing the fortifications of a town which is not actually besieged. As he has a right to do all these things in time of peace, the truce does not tie up his hands. Can it be supposed that, by such a compact, he meant to debar himself from executing things which the continuation of hostilities could not prevent him from doing?
§ 246. 2d Rule: Not to take advantage of the truce in doing what hostilities would have prevented.
But to take advantage of the cessation of arms in order to execute without danger certain things which are prejudicial to the enemy, and which could not have been safety undertaken during the continuance of hostilities, is circumventing and deceiving the enemy with whom the compact has been made; it is a breach of the truce. By this second general rule we may solve several particular cases.
§ 247. For instance, continuing the works of a siege, or repairing breaches.
The truce concluded between the governor of a town and the general besieging it, deprives both of the liberty of continuing their works. With regard to the latter, this is manifest, his works being acts of hostility. But neither can the governor, on his part, avail himself of the armistice, for the purpose of repairing the breaches or erecting new fortifications. The artillery of the besiegers does not allow him to carry on such works with impunity during the continuance of hostilities: it would therefore be detrimental to them that he should employ the truce in this manner: and they are under no obligation of submitting to be so far imposed upon: they will with good reason consider such an attempt as an infraction of the truce. But the suspension of arms does not hinder the governor from continuing within his town such works as were not liable to be impeded by the attacks or fire of the enemy. At the last siege of Tournay, after the surrender of the town, an armistice was agreed on; during the continuance of which, the governor permitted the French to make all the necessary preparations for attacking the citadel, to carry on their works, and erect their batteries, because the governor, on his part, was in the mean time busily employed within, in clearing away the rubbish with which the blowing up of a magazine had filled the citadel, and was erecting batteries on the ramparts. But all this he might have performed with little or no danger, even if the operations of the siege had commenced; whereas the French could not have carried on their works with such expedition, or made their approaches and erected their batteries without losing a great number of men. There was therefore no equality in the case; and, on that footing, the truce was entirety in favor of the besiegers: and, in consequence of it, the capture of the citadel took place sooner, probably by a fortnight, than it would otherwise have happened.
§ 248. or introducing succors.
If the truce be concluded either for the purpose of settling the terms of the capitulation or of waiting for the orders of the respective sovereigns, the besieged governor cannot make use of it as a convenient opportunity to introduce succors or ammunition into the town: for, this would be taking an undue advantage of the armistice for the purpose of deceiving the enemy a conduct which is inconsistent with candor and honesty. The spirit of such a compact evidently imports that alt things shall remain as they were at the moment of its conclusion.
§ 249. Distinction of a particular case.
But this is not to be extended to a suspension of arms agreed on for some particular circumstance, as, for instance, burying the dead. In this case, the truce is to be interpreted, with a view to its immediate object. Accordingly, the firing ceases, either in all quarters, or only in a single point of attack, pursuant to agreement, that each party may freely carry off their dead: and during this intermission of the cannonade, it is not allowable to carry on any works which the firing would have impeded. This would be taking an undue advantage of the armistice, and consequently a violation of it. But it is perfectly justifiable in the governor, during such a cessation of hostilities, silently to introduce a reinforcement in some quarter remote from the point of attack. If the besieger, lulled by such an armistice, abates in his vigilance, he must abide the consequences. The armistice of itself does not facilitate the entrance of that reinforcement.
§ 250. Retreat of an army during a suspension of hostilities.
Likewise, if an army in a bad position proposes and concludes an armistice for the purpose of burying the dead after a battle, it cannot pretend, during the suspension of arms, to extricate itself from its disadvantageous situation, and to march off unmolested, in sight of the enemy. This would be availing itself of the compact in order to effect a purpose which it could not otherwise have accomplished. This would be laying a snare; and conventions must not be converted into snares. The enemy, therefore, may justly obstruct the motions of that army the moment it attempts to quit its station: but, if it silently files off in the rear, and thus reaches a safer position, it will not be guilty of a breach of faith; since nothing more is implied by a suspension of arms for the burial of the dead, than that neither party shall attack the other whilst this office of humanity is performing. The enemy, therefore, can only blame his own remissness: he ought to have stipulated, that, during the cessation of hostilities, neither party should quit their post: or it was his business vigilantly to watch the motions of the hostile army and on perceiving their design, he was at liberty to oppose it. It is a very justifiable stratagem to propose a cessation of arms for a particular object, with a view of lulling the enemy’s vigilance, and covering a design of retreating.
But, if the truce be not made for any particular object alone, we cannot honorably avail ourselves of it in order to gain an advantage, as, for instance, to secure an important post, or to advance into the enemy’s country, The latter step would indeed be a violation of the truce; for, every advance into the enemy’s country is an act of hostility.
§ 251. 3d Rule: Nothing to be attempted in contested places, but every thing to be left as it was.
Now, as a truce suspends hostilities without putting an end to the war, every thing must, during the continuance of the truce, be suffered to remain in its existing state, in all places of which the possession is contested: nor is it lawful, in such places, to attempt any thing to the prejudice of the enemy. This is a third general rule.
§ 252. Places quitted or neglected by the enemy.
When the enemy withdraws his troops from a place, and absolutely quits it, his conduct sufficiently shows that he does not intend to occupy it any longer: and in this case we may lawfully take possession of it during the truce. But if, by any indication, it appears that a post, an open town, or a village, is not relinquished by the enemy, and that, though he neglects to keep it guarded, he still maintains his rights and claims to it, the truce forbids us to seize upon it. To take away from the enemy what he is disposed to retain, is an act of hostility.
§ 253. Subjects inclined to revolt against their prince not to be received during the truce.
It is also an undoubted act of hostility to receive towns or provinces inclined to withdraw from the sovereignty of the enemy, and give themselves up to us. We therefore cannot receive them during the continuance of the truce, which wholly suspends all hostile proceedings.
§ 254. much less to be solicited to treason.
Far more unlawful it is, during that period, to instigate the subjects of the enemy to revolt, or to tamper with the fidelity of his governors and garrisons. These are not only hostile proceedings, but odious acts of hostility (§ 180). As to deserters and fugitives, they may be received during the truce, since they are received even in time of peace, when there is no treaty to the contrary. And, even if such a treaty did exist, its effect is annulled, or at least suspended, by the war which has since taken place.
§ 255. Persons or effects of enemies not to be seized during the truce.
To seize persons or things belonging to the enemy, when he has not, by any particular fault on his side, afforded us grounds for such seizure, is an act of hostility, and consequently not allowable during a truce.
§ 256. Right of postliminium during the truce.
Since the right of postliminium is founded only on the state of war (Chap. XIV. of this Book), it cannot take effect during the truce, which suspends all the acts of war, and leaves every thing in its existing state (§ 251). Even prisoners cannot during that season withdraw from the power of the enemy, in order to recover their former condition: for the enemy has a right to detain them while the war continues; and it is only on its conclusion that his right over their liberty expires(§ 148).
§ 257. Intercourse allowed during a truce.
During the truce, especially if made for a long period, it is naturally allowable for enemies to pass and repass to and from each other’s country, in the same manner as it is allowed in time of peace, since all hostilities are now suspended. But each of the sovereigns is at liberty, as he would be in time of peace, to adopt every precaution which may be necessary to prevent this intercourse from becoming prejudicial to him. He has just grounds of suspicion against people with whom he is soon to recommence hostilities. He may even declare, at the time of making the truce, that he will admit none of the enemy into any place under his jurisdiction.
§ 258. Persons detained by unsurmountable obstacles after the expiration of the truce.
Those who, having entered the enemy’s territories during the truce, are detained there by sickness or any other unsurmountable obstacle, and thus happen to remain in the country after the expiration of the armistice, may in strict justice be kept prisoners: it is an accident which they might have foreseen, and to which they have of their own accord exposed themselves; but humanity and generosity commonly require that they should be allowed a sufficient term for their departure.
§ 259. Particular conditions added to truces.
If the articles of truce contain any conditions either more extensive or more narrowly restrictive than what we have here laid down, the transaction becomes a particular convention. It is obligatory on the contracting parties, who are bound to observe what they have promised in due form: and the obligations thence resulting constitute a conventional right, the detail of which is foreign to the plan of this work.
§ 260. At the expiration of the truce, the war is renewed without any fresh declaration.
As the truce only suspends the effects of war (§ 233), the moment it expires, hostilities may be renewed without any fresh declaration of war; for every one previously knows that from that instant the war will resume its course; and the reasons for the necessity of a declaration are not applicable to this case (§ 51).
But a truce of many years very much resembles a peace, and only differs from it in leaving the subject of the war still undecided. Now, as a considerable lapse of time may have effected a material alteration in the circumstances and dispositions of both the parties, the love of peace, so becoming in sovereigns, the care they should take to spare their subjects’ blood, and even that of her enemies, these dispositions, I say, seem to require that princes should not take up arms again at the expiration of a truce in which all military preparatives had been totally laid aside and forgotten, without making some declaration which may invite the enemy to prevent the effusion of blood. The Romans have given us an example of this commendable moderation, They had only made a truce with the city of Veii; and the enemy even renewed hostilities before the stipulated time was elapsed. Nevertheless, at the expiration of the term, the college of the feciales gave it as their opinion that the Romans should send to make a formal demand of satisfaction, previous to their taking up arms again.4
§ 261. Capitulations; and by whom they may be concluded.
The capitulations on the surrender of towns are among the principal conventions made between enemies during the course of war. They are usually settled between the general of the besieging army and the governor of the besieged town, both acting in virtue of the authority annexed to their respective posts or commissions.
We have elsewhere (Book II. Chap. XIV.) laid down the principles of that authority which is vested in the subordinate powers, together with general rules to aid in forming a decision respecting it. All this has recently been recapitulated in a few words, and particularly applied to generals and other military commanders in chief (§ 237). Since the general of an army, and the governor of a town, must naturally be invested with all the powers necessary for the exercise of their respective functions, we have a right to presume that they possess those powers: and that of concluding a capitulation is certainly one of the number, especially when they cannot wait for the sovereign’s order. A treaty made by them on that subject is therefore valid, and binds the sovereigns in whose name and by whose authority the respective commanders have acted.
§ 262. Clauses contained in them.
But let it be observed, that, if those officers do not mean to exceed their powers, they should scrupulously confine themselves within the limits of their functions, and forbear to meddle with things which have not been committed to their charge. In the attack and the defense, in the capture or the surrender of a town, the possession alone is the point in question, and not the property and right: the fate of the garrison is also involved in the transaction. Accordingly, the commanders may come to an agreement respecting the manner in which the capitulating town shall be possessed: the besieging general may promise that the inhabitants shall be spared, and permitted to enjoy their religion, franchises, and privileges: and, as to the garrison, he may allow them to march out with their arms and baggage, with all the honors of war, to be escorted and conducted to a place of safety, etc. The governor of the town may deliver it up at discretion, if reduced to that extremity by the situation of affairs: he may surrender himself and his garrison prisoners of war, or engage, that, for a stipulated time, or even to the end of the war, they shall not carry arms against the same enemy, or against his allies: and the governor’s promise is valid and obligatory on all under his command, who are bound to obey him while he keeps within the limits of his functions (§ 23).
But, should the besieging general take on him to promise that his sovereign shall never annex the conquered town to his own dominions, or shall, after a certain time, be obliged to restore if, he would exceed the bounds of his authority, in entering into a contract respecting matters which are not intrusted to his management. And the like may be said of a governor who in the capitulation should proceed to such lengths as for ever to alienate the town which he commands, and to deprive his sovereign of the right to retake it, or who should promise that his garrison shall never carry arms, not even in another war. His functions do not give him so extensive a power. If, therefore, in the conferences for a capitulation, either of the hostile commanders should insist on conditions which the other does not flunk himself empowered to grant, they have still one expedient left, which is, to agree to an armistice, during which every thing shall continue in its present state, until they have received orders from higher authority.
§ 263. Observance of capitulations, and its utility.
At the beginning of this chapter we have given the reasons why we thought it unnecessary to prove in this place that all these conventions made during the course of the war, are to be inviolably adhered to. We shall therefore only observe, with respect to capitulations in particular, that, as it is unjust and scandalous to violate them, so the consequences of such an act of perfidy often prove detrimental to the party who has been guilty of it. What confidence can thenceforward be placed in him? The towns which he attacks will endure the most dreadful extremities, rather than place any dependence on his word. He strengthens his enemies by compelling them to make a desperate defense; and every siege that he is obliged to undertake will become terrible. On the contrary, fidelity attracts confidence and affection; it facilitates enterprises, removes obstacles, and paves the way to glorious successes. Of this, history furnishes us a fine example in the conduct of George Basle, general of the imperialists in 1602, against Battory and the Turks, The insurgents of Battory’s party having gained possession of Bistrith, otherwise called Nissa, Baste recovered the town by a capitulation, which in his absence was violated by some German soldiers, but, being informed of the transaction on his return, he immediately hanged up all the soldiers concerned, and out of his own purse paid the inhabitants all the damages they had sustained. This action had so powerful an influence on the minds of the rebels, that they all submitted to the emperor, without demanding any other surely than the word of General Baste.5
§ 264. Promises made to the enemy by individuals.
Individuals, whether belonging to the army or not, who happen singly to fall in with the enemy, are, by the urgent necessity of the circumstance, left to their own discretion, and may, so far as concerns their own persons, do every thing which a commander might do with respect to himself and the troops under his command. If, therefore, in consequence of the situation in which they are involved, they make any promise, such promise (provided it do not extend to matters which can never lie within the sphere of a private individual) is valid and obligatory, as being made with competent powers. For, when a subject can neither receive his sovereign’s orders nor enjoy his protection, he assumes his natural rights, and is to provide for his own safety by any just and honorable means in his power.6 Hence, if that individual has promised a sum for his ransom, the sovereign, so far from having a power to discharge him from his promise, should oblige him to fulfill it. The good of the state requires that faith should be kept on such occasions, and that subjects should have this mode of saving their lives or recovering their liberty.7
Thus, a prisoner who is released on his parole, is bound to observe it with scrupulous punctuality; nor has the sovereign a right to oppose such observance of his engagement: for, had not the prisoner thus given his parole, he would not have been released.
Thus, also, the country people, the inhabitants of villages or defenseless towns, are bound to pay the contributions which they have promised in order to save themselves from pillage.8
Nay, more, a subject would even have a right to renounce his country, if the enemy, being master of his person, refused to spare his life on any other condition: for, when once the society to which he belongs is unable to protect and defend him, he resumes his natural rights. And besides, should he obstinately refuse compliance, what advantage would the state derive from his death? Undoubtedly, while any hope remains, while we have yet any means of serving our country, it is our duty to expose ourselves and to brave every danger for her sake. I here suppose that we have no alternative but that of renouncing our country, or perishing without any advantage to her. If by our death we can serve her, it is noble to imitate the heroic generosity of the Decii. But an engagement to serve against our country, were it the only means of saving our life, is dishonorable, and a man of spirit would submit to a thousand deaths, rather than make so disgraceful a promise.
If a soldier, meeting an enemy in a by-place, makes him prisoner, but promises him his life or liberty on condition of his paying a certain ransom, this agreement is to be respected by the superiors: for, it does not appear that the soldier, left entirely to himself on that occasion, has in any particular exceeded his powers. He might, on the other hand, have thought it imprudent to attack that enemy, and, under that idea, have suffered him to escape. Under the direction of his superiors, he is bound to obey: when alone, he is left to his own discretion. Procopius relates the adventure of two soldiers, the one a Goth and the other a Roman, who, being fallen together into a pit, mutually promised each other that their lives should be spared: and this agreement was approved by the Goths.9
1. Lib. iii. cap. xxi. § i.
2. Belli commercia Turnus Sustulit ista prior. æn. x. 532.
3. Ann. lib. xiv. cap. xxxiii.
4. Tit. Liv. lib. iv. cap. 30.
5. Sully’s Memoirs, by M. de l’Ecluse, vol. iv. p. 179.
6. In general, all contracts in favor of alien enemies are, in Great Britain, void, both at law and in equity; (Williamson v. Patterson, 7 Taunton’s Rep. 439, 1 J.B. Moore, 333 S.C.; 2 Ves. & B. 332; ante, 321, n (a),); unless the enemy come into this country sub salvo conductu, or live here by the king’s license; (Cowp. 163; 6 Term Rep. 23; 2 Ves. & Beam 332.) And a bill drawn abroad by an alien enemy on a British subject here, and endorsed during war to a British subject voluntarily resident in the hostile country, cannot be enforced by the latter after peace has been restored, because it was illegal in its concoction; Williamson v. Patterson, ubi supra; 3 Bos. & Pul. 113; 3 Maule & Sel. 533.} But, upon the principle above laid down by Vattel, it was decided that where two British subjects were declared prisoners in France, and one of them drew a bill in favor of the other on a third British subject, resident in England, and such payee endorsed the same in France to an alien enemy it was held that the transaction was legal, and that the alien’s right of action was only suspended during the war; and that, on the return of peace, he might recover the amount from the acceptor; for, otherwise, such persons would sustain great privations during their detention: and, for the same reason, it is no objection to an action on such bill, that it is brought as to part in trust for an alien enemy. Antoine v. Moorshead, 6 Taunt. 237, 447, 1 Marsh. Rep. 558, S.C. Danbug v. Moorshead, 6 Taunt, 332. C.
7. See the same principle and reasoning, ante § 174, p. 371-2. This doctrine, as to ransom, and ransom-bills, is recognized as part of the law of nations, in 4 Bla. Com. 67; 1 Chitty’s Com L., 32, 4428. But the ransoming of any ships, or merchandise on board the same, and taken by an enemy of Great Britain, is absolutely prohibited by the English statutes, (22 Geo. 3, c. 25; 43 Geo. c, c. 150; 45 Geo. 3, c. 72;) except in cases of extreme necessity, continuing to be allowed by the Court of Admiralty; and all contracts for ransom, contrary to those statutes, are declared void, and subjected to a penalty of £500. See Marshall on Insurances, 431. These ransom acts are to be considered as remedial laws, and must be construed liberally to met the mischief. Havelock v. Rockwood, 6 Term. Rep. 277: Anthon v. Fisher, 2 Dougl. 649, n.; Woodward v. Larkins, 3 Esp. R. 266. And see decisions, Corme v. Blackburne, 2 Dougl. 641; Webb v. Brooks, 3 Taunt. 6; Yeats v. Hall, and Kelly v. Grant, 1 Term. Rep. 73,76. And where the master of a British ship, captured by an American, induced the latter to release the vessel, on the former drawing a blll on England for £1000, by way of ransom, and the payment of which he countermanded in time, he was even allowed to recover from his owners compensation in the nature of salvage, for his services morally speaking, constituting a perfidious breach of faith, Ship London, 2 Dodson’s Rep. 74. C.
8. Same point, ante, 403, in note C.
9. Hist. Goth. lib. ii. cap. I. quoted by Pufendorf, book viii. chap. vii. 14.