Of Safe-conducts and Passports

§ 265. Nature of safe-conducts and passports.¹
SAFE-CONDUCTS and passports are a kind of privilege insuring safety to persons in passing and repassing, or to certain things during their conveyance from one place to another. From the usage and genius of the (French) language, it appears that the term “passport” is used, on ordinary occasions, when speaking of persons who lie under no particular exception as to passing and repassing in safety, and to whom it is only granted for greater security, and in order to prevent all debate, or to exempt them from some general prohibition. A safe-conduct is given to those who otherwise could not safely pass through the places where he who grants it is master, — as, for instance, to a person charged with some misdemeanor, or to an enemy. It is of the latter that we are here to treat.

§ 266. From what authority they emanate.
All safe-conducts, like every other act of supreme command, emanate from the sovereign authority: but the prince may delegate to his officers the power of granting safe-conducts; and they are invested with that power either by an express commission, or by a natural consequence of the nature of their functions. A general of an army, from the very nature of his post, can grant safe-conducts: and, as they are derived, through mediately, from the sovereign authority, the other generals or officers of the same prince are bound to respect them.

§ 267. Not transferable from one person to another.
The person named in the safe-conduct cannot transfer his privilege to another: for he does not know whether it be a matter of indifference to the grantor of the safe-conduct that another person should use it in his stead: and, so far from presuming that to be the case, he is even bound to presume the contrary, on account of the abuses which might thence result; and he cannot assume to himself any further privilege than was intended for him. If the safe-conduct is granted, not for persons, but for certain effects, those effects may be removed by others besides the owner. The choice of those who remove them is indifferent, provided there do not lie against them any personal exception sufficient to render them objects of just suspicion in the eye of him who grants the safe-conduct, or to exclude them from the privilege of entering his territories.

§ 268. Extent of the promised security.
He who promises security by a safe-conduct, promises to afford it wherever he has the command, — not only in his own territories, but likewise in every place where any of his troops may happen to be: and he is bound, not only to forbear violating that security either by himself or his people, but also to protect and defend the person to whom he has promised it, to punish any of his subjects who have offered him violence, and oblige them to make good the damage.²

§ 269. How to judge of the right derived from a safe-conduct.
As the right arising from a safe-conduct proceeds entirely from the will of him who grants it, that will is the standard by which the extent of the right is to be measured; and the will is discoverable in the object for which the safe-conduct was granted. Consequently, a person who has barely obtained permission to go away, does not thence derive a right to come back again; and a safe-conduct, granted for the simple passage through a country, does not entitle the bearer to repass through it on his return. When the safe-conduct is granted for a particular business, it must continue in force until that business is concluded, and the person has had time to depart: if it is specified to be granted for a journey, it will also serve for the person’s return, since both passage and return are included in a journey. As this privilege consists in the liberty of going and coming in safety, it differs from a permission to settle in any particular place, and consequently cannot give a right to stop anywhere for a length of time, unless on some special business, in consideration of which the safe-conduct was asked and granted.

§ 270. Whether it includes baggage and domestics.
A safe-conduct given to a traveler, naturally includes his baggage, or his clothes, and other things necessary for his journey, with even one or two domestics, or more, according to the rank of the person. But, in all these respects, as well as in the others which we have just noticed above, the safest mode, especially when we have to do with enemies or other suspected persons, is, to specify and distinctly enumerate the particulars, in order to obviate every difficulty. Accordingly, such is the practice which at present prevails; and, in granting safe-conducts, it is the custom expressly to include the baggage and domestics.

§ 271. Safe-conduct granted to the father does not include his family.
Though a permission to settle anywhere, granted to the father of a family, naturally includes his wife and children, it is otherwise with a safe-conduct; because it seldom happens that a man settles in a place without having his family with him; whereas, on a journey, it is more usual to travel without them.

§ 272. Safe-conduct given in general, to any one and his retinue.
A safe-conduct, granted to a person for himself and his retinue, cannot give him a right of bringing with him persons justly suspected by the state, or who have been banished, or have fled from the country on account of any crime; nor can it serve as a protection to such men: for, the sovereign who grants a safe-conduct in those general terms, does not suppose that it will be presumptuously abused for the purpose of bringing persons into his territories who have been guilty of crimes, or have particularly offended him.

§ 273. Term of the safe-conduct.
A safe-conduct, given for a stated term, expires at the end of the term specified therein; and the bearer, if he does not retire before that time, may be arrested, and even punished, according to circumstances, especially if he has given room for suspicion by an affected delay.

§ 274. A person forcibly detained beyond the term.
But, if forcibly detained, as by sickness so as to be unable to depart in time, a proper respite should be allowed him; for a promise of security has been made to him: and, though it was made only for a limited time, it is not by any fault of his own that he has been prevented from departing within the term. The case is different from that of an enemy coming into our country during a truce: to the latter we have made no particular promise; he, at his own peril, takes advantage of a general liberty allowed by the suspension of hostilities. All we have promised to the enemy is to forbear hostilities for a certain time; and, at the expiration of that term, it is a matter of importance to us that we be at liberty to let the war freely take its course, without being impeded by a variety of excuses and pretexts.

§ 275. The Safe-conduct does not expire at the death of him who gave it.
The safe-conduct does not expire at the decease or deposition of him who granted it; for it was given in virtue of the sovereign authority, which never dies, and whose efficacy exists independent of the person intrusted with the exercise of it. It is with this act as with other ordinances of the public power; their validity or duration does not depend on the life of him who enacted them, unless, by their very nature, or by express declaration, they are personally confined to him.

§ 276. How it may be revoked.
The successor, nevertheless, may revoke a safe-conduct, if he has good reasons for the revocation. Even he who has granted it may, in like case, revoke it: nor is he always obliged to make known his reasons. Every privilege, when it becomes detrimental to the state, may be revoked, — a gratuitous privilege, purely and simply, — a purchased privilege, on giving an indemnification to the parties concerned. Suppose a prince or his general is preparing for a secret expedition; — must he suffer any person, under cover of a safe-conduct, antecedently obtained, to come and pry into his preparatives, and give the enemy intelligence of them? But a safe-conduct is not to be converted into a snare; if it be revoked, the bearer must be allowed time and liberty to depart in safety. If he, like any other traveler, be detained for some time, in order to prevent his carrying intelligence to the enemy, no ill-treatment is to be offered him; nor is he to be kept longer than while the reasons for his detainder subsist.

§ 277. Safe-conduct with the clause, for such time as we shall think fit.
If a safe-conduct contains this clause — “For such time as we shall think fit,” it gives only a precarious right, and is revocable every moment: but, until it has been expressly revoked, it remains valid. It expires on the death of him who gave it, who, from that moment, ceases to will the continuation of the privilege. But it must always be understood that, when a safe-conduct expires in this manner, the bearer is to be allowed a proper time for his safe departure.

§ 278. Conventions relating to the ransom of prisoners.
After having discussed the right of making prisoners of war, — the obligation of the captor to release them at the peace, by exchange or ransom, — and that of their sovereign to obtain their liberty, — it remains to consider the nature of those conventions whose object is the deliverance of these unfortunate sufferers. If the belligerent sovereigns have agreed on a cartel for the exchange or ransom of prisoners, they are bound to observe it with equal fidelity as any other convention. But if (as was frequently the practice in former times) the state leaves to each prisoner, at least during the continuance of the war, the care of redeeming himself — such private conventions present a number of questions, of which we shall only touch on the principal ones.

§ 279. The right of demanding a ransom may be transferred.
He who has acquired a lawful right to demand a ransom from his prisoner, may transfer his right to a third person. This was practiced in the last ages. It was frequent for military men to resign their prisoners, and transfer all the lights they had over them into other hands. But as the person who takes a prisoner is bound to treat him with justice and humanity (§ 150), he must not, if he wishes that his conduct should be free from censure, transfer his right, in an unlimited manner, to one who might make an improper use of it: when he has agreed with his prisoner concerning the price of his ransom, he may transfer to whom he pleases the right to demand the stipulated sum.

§ 280. What may annul the convention made for the rate of the ransom.
When once the agreement is made with a prisoner for the price of his ransom, it becomes a perfect contract, and cannot be rescinded under pretense that the prisoner is discovered to be richer than was imagined: for it is by no means necessary that the rate should be proportioned to the wealth of the prisoner, since that is not the scale by which we measure the right to detain a prisoner of war (§§ 148, 153). But it is natural to proportion the price of the ransom to the prisoner’s rank in the hostile army, because the liberty of an officer of distinction is of greater consequence than that of a private soldier or an inferior officer, if the prisoner has not only concealed, but disguised his rank, it is a fraud on his part, which gives the captor a right to annul the compact.

§ 281. A prisoner dying before payment of ransom.
If a prisoner, having agreed on the price of his ransom, dies before payment, it is asked whether the stipulated sum be due, and whether the heirs are bound to pay it? They undoubtedly are, if the prisoner died on the possession of his liberty: for, from the moment of his release, in consideration of which he had promised a sum, that sum becomes due, and does not at all belong to his heirs. But if he had not yet obtained his liberty, the price which was to have been paid for it is not a debt on him or his heirs, unless he had made his agreement in a different manner; and he is not reputed to have received his liberty until the moment when he is perfectly free to depart at pleasure, — when neither the person who held him prisoner, nor that person’s sovereign, opposes his release and departure.

If he has only been permitted to lake a journey, for the purpose of prevailing on his friends or his sovereign to furnish him with the means of ransoming himself, and dies before he is possessed of his full liberty, before he is finally discharged from his parole, nothing is due for his ransom.

If, after having agreed on the price, he is detained in prison till the time of payment, and there dies in the interim, his heirs are not bound to pay the ransom — such an agreement, being on the part of the person who held him prisoner, no more than a promise of giving him his liberty on the actual payment of a certain sum. A promise of buying and selling does not bind the supposed purchaser to pay the price of the article in question, if it happens to perish before the completion of the purchase. But if the contract of sale be perfect, the purchaser must pay the price of the thing sold, though it should happen to perish before delivery, provided there was no fault or delay on the part of the vendor. For this reason, if the prisoner has absolutely concluded the agreement for his ransom, acknowledging himself, from that moment, debtor for the stipulated sum, — and is, nevertheless, still detained, no longer indeed as a prisoner, but a surety for the payment, — the price of the ransom is due, notwithstanding the circumstance of his dying in the interim.

If the agreement says that the ransom shall be paid on a certain day, and the prisoner happens to die before that day, the heirs are bound to pay the sum agreed on: for the ransom was due; and the appointed day was assigned merely as the term of payment.

§ 282. Prisoner released on condition of procuring the release of another.
From a rigid application of the same principles, it follows that a prisoner, who has been released on condition of procuring the release of another, should return to prison, in case the latter happens to die before he has been able to procure him his liberty. But certainly such an unfortunate case is entitled to lenity; and equity seems to require that this prisoner should be allowed to continue in the enjoyment of that liberty which has been granted to him, provided he pays a fair equivalent for it, since he is now unable to purchase it precisely at the price agreed on.

§ 283. Prisoner retaken before he has paid his former ransom.
If a prisoner, who has been fully set at liberty, after having promised but not paid his ransom, happens to be taken a second time, it is evident that, without being exempted from the payment of his former ransom, he will have to pay a second, if he wishes to recover his liberty.

§ 284. Prisoner rescued before he has received his liberty.
On the other hand, though the prisoner has agreed for the price of his ransom, if, before the execution of the compact, — before he is set at liberty in virtue of it, — he be retaken and delivered by his own party, he owes nothing. I here evidently suppose that the contract for his ransom was not completed, and that the prisoner had not acknowledged himself debtor for the sum agreed on. The person who held him prisoner had, as it were, only made him a promise of selling, and he had promised to purchase; but the purchase and sale had not actually passed into effect; the property was not actually transferred.

§ 285. Whether the things which a prisoner has found means to conceal, belong to him.
The property of a prisoner’s effects is not vested in the captor, except so far as he seizes on those effects at the time of his capture. Of this there is no doubt, in these modern times, when prisoners of war are not reduced to slavery. And, even by the law of nature, the property of a slave’s goods does not, without some other reason, pass to the master of the slave. There is nothing in the nature of slavery which can of itself produce that effect. Though a man obtains certain rights over the liberty of another, does it thence follow that he shall have a right over his property also? When, therefore, the enemy has not plundered his prisoner, or when the latter has found means to conceal something from the captor’s search, whatever he has thus saved still continues to be his own property, and he may employ it towards the payment of his ransom. At present, even the plundering of prisoners is not always practiced: the greedy soldier sometimes proceeds to such lengths: but an officer would think it an indelible slain on his character, to have deprived them of the smallest article. A party of private French troopers, who had captured a British general at the battle of Rocoux, claimed no right to any thing belonging to their prisoner, except his arms alone.

§ 286. Hostages given lot the release of a prisoner.
The death of the prisoner extinguishes the captor’s right. Wherefore, if any person is given as a hostage in order to procure a prisoner’s enlargement, he ought to be released the moment the prisoner dies; and, on the other hand, if the hostage dies, his death does not reinstate the prisoner in the possession of his liberty. The reverse of this is true, if the one, instead of being simply a hostage for the other, had been substituted in his stead.