Front Page Titles (by Subject) CHAPTER XXI: Of Faith during War, of Truces, of Safe-Conduct, and the Redemption of Prisoners. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XXI: Of Faith during War, of Truces, of Safe-Conduct, and the Redemption of Prisoners. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 3 (Book III) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3.
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Of Faith during War, of Truces, of Safe-Conduct, and the Redemption of Prisoners.
I.What a Truce is, and whether it be a Time of Peace or War.I. 1. There are some Things that use to be granted mutually by sovereign Princes, in Time of War, which1Virgil and2Tacitus call Belli Commercia, The Commerce of Wars.3Homer, Συνημόσυναι. Such as Truce, Safe-Conducts, Ransom of Prisoners. A Truce is an Agreement, by which, during the War, for a Time we forbear all Acts of Hostility. I say, during the War: For as Cicero4 says, in his eighth Philippick, there is no Middle between War and Peace. And War is a certain State, which (like Habits) may subsist, even tho’ its Actions be for a While suspended. Aristotle says,5A Man may be virtuous, tho’ asleep, and tho’ he lead an inactive Life. And again, The6Distance of Place doth not dis-<716>solve Friendship, it only interrupts the present Exercise of it. And 7Andronicus Rhodius, There may be a Habit, tho’ at present it may not operate. So8Eustratius, An Habit, in Respect to an Ability simply taken, is called an Act, but in Respect to Action itself, is called Power; as Geometry is in a Geometrician when he is asleep. And in Horace, Lib. 1. Sat. 3.
2. So then, as Gellius says,9A Truce cannot be called a Peace, for the War continues, tho’ Fighting ceases. And in the Panegyrick of Latinus Pacatus,10Truce suspends the Effects of War. Which I here mention, that we may understand11 that whatever is agreed upon to be of Force during a War, has also the same Force during a Truce; unless it fully appear, that it was not so much the general State of War, as the Exercise12 of it, was had Regard to. On the contrary, if any Thing be agreed on concerning Peace, it is of no Force in Time of Truce. Tho’ Virgil calls a Truce13Pacem Sequestram, A provisional Peace; and Servius,14A temporary Peace; and so does the Scholiast on Thucydides,15A temporary Peace bringing forth War. Varro,16Pacem Castrorum, The Peace of Camps for a few Days. All which are not Definitions, but certain Descriptions, and those figurative: Such also was that of Varro,17 when he calls it Bellorum ferias, War’s Holy-Day: He might as well have called it Belli Somnum, War’s Sleep. So Statius18 called the Days wherein there was no Pleading, Peace. And Aristotle19 called Sleep The Chain of the Senses; and so you may call Truce, The Fetters of War.
3. But in M. Varro’s Exposition (which also20Donatus follows)21Gellius finds just Fault with this, that he added, A few Days, shewing that it is sometimes granted for a few Hours, I may also add, for twenty, thirty, forty, nay a hundred Years, of which we have Examples in Livy;22 which may also confute that De-<717>finition of Paulus the Lawyer, 23A Truce is, when it is agreed for a short Time, and for the present Time, that neither Party shall offer Acts of Hostility.
4. But yet it is possible, if it shall clearly appear, that Cessation from Acts of Hostility in general, was the only Reason simply and wholly moving both Parties to make such an Agreement, that then24 whatsoever is said concerning a Time of Peace, may be likewise said of a Truce; not by Vertue of the Word, but from a certain Conjecture of the Intention of the Mind; of which we have treateda elsewhere.
II.The Original of the Word Induciae.II. The Word1Induciae (a Truce) is not (as Gellius would have it) from inde uti jam, because the Moment it is ended we may act as before: Nor (according to Opilius) from Endoitus, which signifies Entry; because we may then enter freely into Lands of one another; but from inde otium, because there should be Rest from such a Time, as the Greeks call it ἐκεχειρία. For it appears, both from Gellius and Opilius, that the Word (Induciae) was by the Antients written with a t and not a c; and what we now use in the Plural, was certainly used of old in the Singular Number. The antient Manner of Writing was Endoitia; for then they pronounced Otium, Rest, Oitium, from the Verb Oiti, which we now pronounce Uti, to use; as from Poinaa (we now write Poena, Punishment) is made Punio, to punish; and from Poinus (now Poenus, a Carthaginian) is made Punicus. So of the Word Ostia, Ostiorum, the Entries or Mouths of Rivers, is now made Ostia, Ostiae;b so from Indoitia, Indoitiorum, is made Indoitia, Indoitiae, and thence Indutia, whose Plural (as I said) is now only in use. Gellius says it was also used formerly in the singular Number. Donatus is not much in the wrong, when he would derive Induciae, from in dies otium, A Rest for some Days. A Truce then is a Rest in War, not a Peace; therefore some Historians nicely distinguish it, when they say a Peace2 was refused, but a Truce granted.
III.Upon the ending of a Truce there is no Need of denouncing War again.III. Wherefore, the Truce being expired, there is no Occasion for a new Declaration of a War; for the temporary Impediment1 being removed, the State of War, which was only suspended, and not extinct, returns of itself; as the Use of the Right of Property, and the Exercise of paternal Power, in Regard to a Madman, when he is come to himself. But we read in Livy, that by the Judgment of the Heralds, War was formerly denounced upon the expiring of a Truce. But the old Romans were desirous to shew, by those unnecessary Cautions, how much they loved Peace, and how careful they were not to engage in War, unless for just Reasons. Livy intimates as much, when he says,2After a Battle sought with the Veientes, at Nomentum and Fidenae, a Truce was granted, but no Peace made, and the Truce expired, and they had rebelled within that Time, yet the Heralds were sent to demand Satisfaction, according to antient Custom: But they would not hear them.
IV.How the Time of a Truce is to be computed.IV. 1. The time appointed for a Truce, is either continual, as when it is made for a hundred Days, or by prefixing a Time when it shall end, as unto the Calends<718> (or first Day) of March. In the former Case the Time must be1 reckoned according to its just Measure, that is, conformably to its natural Measure: For that Account which is made by Days civil, arises from the Laws and Customs of Nations. In the other Case it is generally asked, whether the Day, the Month, or the Year, on which the Truce is to expire, is meant to be excluded or included.
2. It is certain, that as in natural Things there are two Sorts of Bounds, the one within the Thing, as the Skin is the Bound of the Body; the other without the Thing, as a River is the Bound of the Land: So, according to either of these two Ways, may those Bounds that depend on the Will be conceived; but it seems more natural,2 that the Bound should be taken, which is part of the Thing, That is called the Bound of any Thing which is the extream Part of it, says Aristotle.3 Neither is this against4 common Use. Spurina forewarned Caesar of a Danger that should not exceed the5 Ides (or the 15th) of March. Being asked upon the very Day about it, he said, it was indeed come, but not yet past. Wherefore much more should this Interpretation of Truces be thus understood, where the lengthning of the Time has in it something favourable, viz. the sparing of human Blood.
3. But yet that Day, from whence a certain Space of Time is to commence, is not to be reckoned in that Space, because6 the Preposition from does not signify Conjunction but Separation.
V.When it begins to bind.V. This I shall add by the Way, that Truces, and such like Agreements, do immediately oblige both Parties consenting, from the Time they are concluded; but the Subjects on both Sides then begin to be bound, when the Truce receives the Form of Law, that is, when it has been solemnly notified,1 which being done, it immediately begins to have a Power to bind the Subjects. But that Power, if the Publication be made only in one Place, shall not at that Instant extend itself throughout the whole Dominion; but upon a convenient Time allowed, to give Notice in every Place. And if any Thing in the mean Time be done by the Subjects contrary to the Truce, they shall not be punishable for it.2 The contracting <719> Parties, however, are not the less bound to repair3 those Damages.
VI.What may be lawfully done during a Truce.VI. 1. What may be lawfully done, and what not, in the Time of Truce, may be understood from the Definition of it. All1 Acts of Hostility are unlawful, either against Persons or Things; that is, whatsoever is then done by Force of Arms against the Enemy. For all such Acts, during the Time of the Truce, is against the Law of Nations, as L. Aemilius, in Livy,2 tells his Soldiers.
2. Nay, whatsoever Things of the Enemy shall by Accident fall into our Hands, tho’ they had been formerly ours, are to be restored; because, in Regard to external Right, by which we are here to regulate ourselves, the Property of them has passed to the Enemy. And therefore, as Paulus3 the Lawyer observes, the Right of Postliminy, during a Truce, does not subsist; because Postliminy supposes an antecedent Right of taking by Force; which ceases during a Truce.
3. To come and go, to have free egress and regress, but without any Train or Attendance that may give Umbrage, is also permitted, as4Servius observes on those Words of Virgil,
Where he also tells us, that the City of Rome being besieged by Tarquin, and a Truce agreed upon between Porsenna and the Romans, whilst the Circean Games were celebrated in the City, the Enemy’s Captains were allowed to come into the City, and contend in the Races, and that proving Victors they were crowned.
VII.Whether to retire back, to repair Breaches, or the like.VII. To retreat back with an Army, which we find in Livy that Philip did, is not a Breach of Truce; nor to repair a Wall, nor to levy Soldiers,a unless it be particularly excepted in the Agreement.
VIII.A Distinction concerning seizing of Places.VIII. 1. It is undoubtedly a Violation of the Truce, to seize on any Place possessed by the Enemy, by corrupting the Garrison. For such an Acquisition cannot be lawful, unless authorised by the Right of War. The same may be said of the Reception of Subjects who would revolt to the Enemy. We have an Example in Livy’s forty-second Book,1 when The People of Coronaea and Haliartus, from a natural Inclination to Monarchy, sent Embassadors into Macedon, to desire a Garrison that might defend them against the insupportable Pride of the Thebans; the King told them he could not send them any, having lately made a Truce with the Romans. In the fourth Book of Thucydides, we read that Brusidas received the City Menda, revolting from the Athenians to the Lacedemonians in Time of Truce; but at the same Time an Excuse is added, which is, that he had in his Turn somewhat to charge the Athenians with.
2. It is indeed lawful to take Possession of Places deserted, that is, really deserted, viz. with a Design not to possess them again; but not, if they be left ungarrisoned, whether the Garrisons were withdrawn before or after the Truce. For the Property remaining renders the other’s Possession unjust; which shews how groundless the Cavil of Belisarius was, who, under that Pretence, seized, during the Truce, somea Places from whence the Goths had withdrawn their Garrisons.<720>
IX.Whether he may return that is forcibly retained during the Truce?IX. 1. The Query is, Whether he who being detained by some unforeseen and inevitable Accident, is found among the Enemies at the expiring of the Truce, has a Right to return? If we barely respect the external Right of Nations, his Case I do not doubt, is the same1 as his who coming in Time of Peace, upon the sudden breaking out of a War (not having Time to withdraw) is unhappily found among his Enemies, who, we havea already declared, is to continue a Prisoner till the End of the War. Neither is it against internal Justice, as the Goods and Actions of the Enemies stand obliged for the Debt of their State, and may be taken by Way of Payment. Neither has he any more Cause to complain than many other innocent Persons, on whom the Calamities of War accidentally fall.
2. It signifies nothing to alledge here what is said of the Excuse of an unforeseen Tempest,2 which has driven a Vessel into some Place where it is subject to Confiscation. Nor that in Cicero’s second Book of Invention, concerning a Man of War, by a Storm driven into Harbour, which the Quaestor would have sold by the Law. For those Examples relate to a Punishment which the insuperable Accident secures from; but here we do not properly discourse of Punishment; but of the Use of a Right that for a certain Time lay suspended, yet it would be far more humane, far more honourable, to release such-a-one.
X.Of the special Agreements of Truces, and what Queries usually arise from thence.X. There are also some Things unlawful during a Truce, from the special Nature of the Agreement. As suppose a Truce were granted only for the Burying of the Dead,1 nothing ought to be changed; so if a Truce be made, that the Besieged should not,2 within such a Time, be assaulted, then it would be unlawful to receive fresh Supplies of Men or Provisions. For since such a Truce is granted to oblige one Party, the other ought not to be prejudiced by it. And sometimes it is agreed in the Truce, that they shall not have Liberty to pass and repass;3 sometimes Protection is granted to Persons, not to Things; wherefore, if in Defence of our Goods we wound any Person, it is not Breach of the Truce. For since it is lawful to defend our Goods, personal Safety is to be referred4 to that which is<721> principal in the Treaty, not unto that which may be deduced from it by consequence.
XI.A Truce broken on one Side, the other may renew the War.XI. If the Faith of Truce be broken on one Side, the other may undoubtedly proceed to Acts of Hostility, without any Declaration; for every Article of the Agreement implies a Condition, as I have said a littlea before. We may find indeed some Examples in History, where some have bore it ought [[sic: right to the End of the Truce. But we read also that War was made upon the Hetrurians, and others, for Breach of Truce. From which Diversity of Examples we may infer it to be lawful for the injured Person to have Recourse to Arms; but whether he will or not is left to his own Choice.]]
XII.What if a Punishment be added.XII. This is certain, that if the Punishment agreed on, be demanded, and be inflicted on the Transgressor, then the other Party1 has no Right to make War; therefore Punishment is inflicted, that other Things may continue safe. So, on the contrary, if the War be renewed, the Offender2 is acquitted from Punishment, since the other had his Choice.
XIII.When private Acts break the Truce.XIII. The Actions of private Persons do not break a Truce, unless the State has some Share in them, either by an Order or an Approbation, which is also implied, if the Offender be neither punished nor delivered up, nor Restitution made.
XIV.Free Passage without a Truce, how to be interpreted?XIV. A Right to pass and repass beyond a [[Truce,† is a Kind of Privilege; therefore what we have already said concerning Privileges, must be observed in the interpreting of it. But this is a Privilege not hurtful to any third Person, nor very burthensome to him that granted it, therefore not to be taken in the strictest Sense of the Words, but with some Allowance, within the Propriety of the Terms. And more especially, if it were not granted upon Request, but freely offered. But still the more, if besides a private Advantage,1 a publick one is intended. Therefore we are to reject a strict Interpretation, tho’ the Words may bear it, unless it would otherwise create an Absurdity, or that very probable Conjectures of the Intent of the Person may induce us to it. But, on the contrary, an Extension even beyond the proper Signification of the Words shall take Place, to prevent such an Absurdity, or from very reasonable Conjectures.]]
XV.Who may come under the Name of Soldiers.XV. Hence we gather, that a safe Pass granted to Soldiers, extends not only to inferior Officers, but also chief Commanders; because the Propriety of the Word will allow1 that Signification, though there is also another2 more strict. So under the Name of Clergy3 are comprehended Bishops. So the Mari-<722>ners4 in a Fleet may be called Soldiers; and all in general, who have taken the military Oath.
XVI.To go, to come, to depart, how to be here understood.XVI. 1. Leave given to go1 implies also one to return; not that the Word go includes it of itself, but because otherwise this Absurdity would follow, that a Favour would be intirely useless. If one promises to let us go away in Safety, we are to understand a Permission to depart, without having any Thing to fear, till we shall be got into a Place of Security.2 It was therefore Treachery in Alexander, to cause them to be murdered in their Return home, to whom he had given Leave to depart.
2. But he that has Leave given him to go away, has not also to come back again; so neither has he that is allowed to come, a Liberty to send; nor on the contrary; for they are distinct Things, neither will Reason3 warrant us to go beyond the Words; but yet, tho’ an Error cannot give any Right, it may excuse from Punishment, if any were stipulated. He also that has Leave to come, shall come but once, and not again, unless the Time allowed4 in the Pass gives Room to conjecture otherwise.
XVII.How far a safe Conduct extends to Persons.XVII. The Son must not follow the Father, nor the Wife her Husband; tho’ when the Question is about the Right of Dwelling in a Country, the one follows the other: For we used to1 dwell, not to travel, with our Families. But a Servant or two, tho’ not particularly expressed, shall be presumed to be allowed, to him who cannot decently travel without them. For he that grants any Thing, is supposed to grant the necessary Consequents, which Necessity is here to be morally understood.
XVIII.How far unto Goods.XVIII. Goods likewise shall be comprehended, not all, but what are necessary for Travellers.
XIX.Who may come under the Name of Attendants, and who under the Name of a Nation.XIX. Under the Name of Attendants we must not understand those whose Character is more odious than that of the Person himself, whose Safety is provided for: Such as are Pirates, Robbers, Fugitives, and Deserters The expressing the Name of their Country1 in the Passport, plainly shews that the Permission does not extend to others, who are not of that Country.
XX.Whether a Passport be valid upon the Death of the Granter?XX. Licence to pass freely being derived from the Authority with which he who gives it is invested, in a dubious Case, does not cease by the Death1 of the Granter,<723> according to what we have saida before, concerning the Grants of Kings, and other sovereign Princes.
XXI.What if it be given only during the Pleasure of the Granter? XXI. It is often disputed, what is meant by this Expression in a Pass, during my Pleasure. And the best founded Opinion is, that it shall last till the Donor shall declare his1 Will to be otherwise, for that is presumed to continue, in a doubtful Case, which is sufficient to produce some Effect of Right: But not if he that granted it be disabled to will, which2 may happen by Death: For the Moment the Person ceases to be, that Presumption of a Continuance of his Will falls of itself, as Accidents vanish as soon as the Substance is destroyed.
XXII.Whether Security be allowed beyond the Territory of the Donor?XXII. But a safe Pass is a Security to him who has it, even beyond the Territory of the Granter, because it is granted by Way of Protection against the Right of War, which of itself is not confined to any particular Prince’s Dominion, as we have saida in another Place.
XXIII.The Redemption of Prisoners favourable.XXIII. The Redemption of Prisoners is a Thing very favourable, especially amongst Christians, to whom the divine Law particularly recommends this Kind of Mercy.1The Redemption of Prisoners is a great and signal Part of Justice, says Lactantius. To redeem Prisoners, especially from a barbarous Enemy, is called by St. Ambrose,2 the most noble and highest Liberality. The same Author defends his own and the Churches Fact, in selling even the consecrated Vessels to redeem Prisoners. The greatest Ornament of Sacraments, says he, is3the redeeming of Captives: And many other Things to the same Purpose.
XXIV.Whether such a Redemption can be forbidden by any Law, explained.XXIV. 1. I dare not then approve, without Restriction, those Laws which forbid the ransoming of Prisoners, as we may read1 of among the Romans. No<724> State so negligent of Captives as ours,2 said one in the Roman Senate. And Livy says, that in the most antient Times Rome had no Compassion for those who were fallen into the Hands of the Enemy. The Ode3 of Horace is well known on this Subject, where he calls the redeeming of Prisoners a shameful Condition, and an Example of dangerous Consequence, a Loss added to the Cowardice of the redeemed Prisoner. But what Aristotle condemns in the Spartan Government, is generally blamed in the Roman; namely, that every Thing in it related too much to warlike Affairs, as if the Safety of their State consisted only in them. But if we would consider it according to Humanity, it were better sometimes to renounce all the Pretensions for which War is undertaken, than to leave so many Men, either our Kindred or Countrymen, unto intollerable Slavery. []
2. Such a Law then cannot be esteemed just, unless there appear a Necessity for that Severity, purely to prevent greater, or more numerous Calamities, which are otherwise morally unavoidable. For in such a Necessity, as the Prisoners themselves, by the Law of Charity, should patiently bear their hard Fortune, they may be laid under an Obligation to it, and others prohibited to do any Thing to draw them from it, according to what we havea said in another Place, that a Citizen may be delivered up for the Good of the Publick.
XXV.The Right in a Prisoner may be transferred.XXV. Prisoners taken in War are not made Slaves, by our Laws or Customs. Yet I doubt not, but that Right of demanding a Ransom from one so taken, may be transferred by the Captor to another, for Nature allows even incorporeal Things to be alienated.
XXVI.The Ransom of one may be due to more than one.XXVI. And the same Person may be indebted for his Ransom to several Men; as if discharged by one, before he paid his Ransom, he be taken by another; for these are distinct Debts, from distinct Causes.
XXVII.Whether the Ransom agreed upon may be made void, if the Estate of the Person be then unknown.XXVII. An Agreement made for a Ransom can not be made void, because the Prisoner is found to be much richer than he was thought to be; because by the1 external Right of Nations, which is now the Matter in Question, no Man may be compelled to give a greater Price than what he first agreed for, if there was no Cheat in that Contract; as may be easily understood from what I have saida already concerning Agreements.
XXVIII.What Goods of a Prisoner belong to the Captor.XXVIII. From what has been said already, that Prisoners are not now made Slaves, it follows, that we do not acquire all their Goods in general, as was done formerly, in Consequence of the Right of Property, which one had over their Persons, as we have saida in another Place. The Captor then has Right to nothing but what he actually takes; wherefore, if the Prisoner can hide any Thing from him, it is none of the Captor’s, because he is not possessed of it. As Paulus the Lawyer decides, against Brutus and Manilius,1 he that seizes upon a Field, cannot be said to possess the Treasure that is buried there, because he knows not of it; for no Man can possess what he knows not of; whence it follows, that what is so concealed may help to pay for his Ransom,2 he having still kept the Property of it.<725>
XXIX.Whether the Heir be chargeable with the Prisoner’s Ransom.XXIX. 1. There is also another Query, whether a Ransom agreed upon, and not paid before the Prisoner’s Death, is to be recovered from the Heir; the Answer is easy in my Opinion: If he died in Prison there is nothing due, for the Agreement was made upon Condition that he should be set at Liberty; but he that is dead can not beso. On the contrary, if he die, being set at Liberty, it shall be due; because he had already gained that for which the Ransom was promised.
2. I freely own, that the Contract may be so made, that the Ransom shall be simply due from the very Moment of the Contract, and the Captive shall still be detained, not as a Prisoner of War, but as one engaged for himself. So, on the contrary, the Covenant may be so made, that the Money of the Ransom shall be only then due, if the Prisoner be alive, and at Liberty, upon a Day prefixed. But such Sort of Clauses not being very natural, are not presumed, without evident Proofs.
XXX.Whether he that is released to free another ought to return, the other being dead.XXX. Here is one Query more, whether he is obliged to return to Prison, who was released on Condition of releasing another, if that other die before the Releasement. I have proveda elsewhere, that in regard to gratuitous Promises, the Promiser has performed his Word, if he has omitted nothing to engage a third Person to do such or such a Thing; but a Promise being made upon a valuable Consideration, the Promiser stands obliged to the full Value, that he promised. So in this very Case, he that is released, is not obliged to return into Custody; for that was not stipulated in the Agreement: And Liberty is a Cause too favourable for presuming a tacit Convention. But neither ought the Prisoner to enjoy Liberty for nothing; but shall1 pay the Value of what he could not perform. For this is more agreeable to the Simplicity of natural Right, than what the Expositors of the Roman Laws have delivered unto us concerning an Action Praescriptis verbis (in prefixed Terms) or a personal Action,2Ob causam datam, causâ non secutâ (for a Thing given and a Thing not following).<726>
[2. ]Neque enim capere, aut venumdare, aliudve quodBelli Commercium, sed caedes, patibula, &c. Annal. Lib. XIV. Cap. XXXIII. Num. 5. See also Histor. Lib. III. Cap. LXXXI. Num. 4.
[3. ]Iliad. Lib. XXII. ver. 261.
[4. ]Etenim cum inter Bellum & Pacem medium nihil sit, &c. Philip. VIII. Cap. I.
[5. ](Ethic. Nicomach. Lib. I. Cap. III.)
[6. ]Ibid. Lib. VIII. Cap. VI.
[7. ]Paraph. Lib. I. Cap. XIV. p. 47. Edit. Heins.
[8. ]Ad VI. Ethic. Nicom. (Cap. I.)
[* ]Seneca maintains, that an eloquent Man is such, tho’ he holds his Tongue, and an Artist an Artist, tho’ he has not the Instruments necessary for the Exercise of his Trade: Artifex est etiam, cui ad exercendam artem instrumenta non suppetant—Quomodo est disertus, etiam qui tacet. De Benefic. Lib. IV. Cap. XXI.
[9. ]Nam neque pax est Induciae: Bellum enim manet, pugna cessat, &c. Noct. Attic. Lib. I. Cap. XXV.
[10. ]Quum induciae bella suspenderant, &c. Cap. IX. Num. 5. Edit. Cellar.
[11. ]For Instance, to pay so much for the Ransom of Prisoners, during the War, &c. that Commerce should be free during the War, between Merchants, &c.
[12. ]If, for Instance, certain Contributions during the War be agreed on, as those Contributions are only granted to prevent Acts of Hostility; they ought to cease during the Truce, because at that Time Acts of Hostility are no longer lawful.
[14. ]PacemergoSequestraminducias dicit: id est, pacem temporalem, & mediam inter bellum praeteritum & futurum.
[15. ]In Lib. I. Cap. XL. p. 25. Note 3. Edit. Oxon. It is a maritime Term applied here. See the Dissertation of a learned German Civilian named John Strauchius, De Induciis, (§ 2.) which is the fifth and last of a Collection printed at Brunswick, in 1662.
[16. ]Induciae, inquit, sunt pax castrensis, paucorum dierum. Apud Gellius, ubi supra, I. 25.
[17. ]Item alio in loco:Induciae, inquit, sunt belli feriae. Idem, ibid.
[19. ]Lib. De Somn. & Vigil. Cap. I. in fin.
[20. ]Induciaesunt pax in paucos dies, vel quod in diem dentur, vel quod in dies otium praebeant. In Eunuch. Terent. Act. I. Scen. I. ver. 15.
[21. ]Neque paucorum tantum, &c. Noct. Attic. I. 25.
[22. ]See Lib. I. Cap. XV. and Lib. VII. Cap. XX. and compare Pufendorf with this Place, Law of Nature and Nations, B. VIII. Chap. VII. § 3, 4.
[23. ]Induciae sunt, quum in breve & in praesens tempus convenit, ne invicem se lacessant: Quo tempore non est postliminium. Digest, Lib. XLIX. Tit. XV. De Captiv. & Postlim. &c. Leg. XIX. § 1.
[24. ]For Instance, if it be agreed, that, during the Peace, the Subjects on both Sides may traffick in certain Merchandises of no Use in War.
[a ]B. 2. c. 16. § 20.
[1 ]Mr. Barbeyrac has thrown all but the last Period of this Paragraph into a Note, and says, it may serve, as much as any other, to justify the same Liberty, which he has taken in many Places, in Regard to Things little necessary, that often interrupt the Chain of the Discourse, so as to occasion the losing Sight of the principal Subject. What a Mess are all these grammatical Niceties, continues he, to a Reader who enquires here after the Law of Nature and Nations? How well founded and useful soever they may be in other Respects, an Author ought to resist the Temptation he may be under, of placing so preposterously the Discoveries he believes he has made of this Kind; and nothing proves better the Necessity of permitting Writers to use Notes upon their own Works; because they may thereby satisfy themselves, and even sometimes serve the Publick, without Offence to their Readers, or prejudicial to the Understanding of the Subject they treat of. For the Rest, as Tastes are very different, especially in Point of Etymologies, some are for deriving Induciae, not from inde, but from the old Word endu or indu, for in. See the Institutiones Oratoriae of Vossius, Lib. IV. Cap. XIII. § 11. and his Etymologicon.
[a ]See Servius in Aen. x. 24.
[b ]And from Ostrea, Ostreorum, Ostraea, Ostreae, an Oyster.
[2. ]Thus, for Instance, Livy says of Papirius, in Regard of the Falisci. Et Faliscis Pacempetentibus annuas Inducias dedit. Lib. X. Cap. XLVI. Num. 12. See the Passage cited in Note 2. on the following Paragraph.
[1 ]See Pufendorf, Law of Nature and Nations, Lib. VIII. Cap. VIII. § 6.
[2. ]Cum Veientibus nuper acie, &c. Lib. IV. Cap. XXX. Num. 14.
[1 ]That is to say, from the Moment the Truce is concluded, to the same Moment of the last Day; and not with Regard to the Beginning or End of the Civil Day, which begins and ends at different Times, according to the Places and Customs of different Nations. Thus, by the Roman Law, an Infant is held to be a Year old, when it attains to the Beginning of the three hundred and sixty-fifth Day: Whereas, according to the natural Calculation, the Year is not compleat till that Moment of the Day in which the Child came into the World. Anniculus, non statim ut natus est, sed trecentesimo sexagesimo quinto die dicitur, incipiente planè, non exacto die: Quia annum civiliter, non ad momenta temporum, sed ad dies, numeramus. Digest, Lib. L. Tit. XVI. De verborum signific. Leg. CXXXIV.
[2. ]Thus decides Baldus, De Statutis, in verb. Usque.Bartolus in L. Patronus, D. De Legat. III. & in L. Nuptae 12. D. DeSenatorib.Archidiaconus, in C. Ecclesias. XIII. Qu. 1. Hieron. De Monte, Lib. De Finibus, Cap. XXIII. Grotius.
[3. ]Metaphys. Lib. V. Cap. XVII.
[4. ]Si quis sic dixerit, ut intra diem mortis ejus aliquid fiat; ipse quoque dies, quo quis mortuus est, numeratur. Digest, Lib. L. Tit. XVI. De verb. signific. Leg. CXXXIII.
[5. ]Introiit Curiam, spreta religione, Spurinnamque irridens, & ut falsum arguens, quod sine ullâ noxâ Idus Martiae adessent. Quamquam is, venisse quidem eas, diceret, sed non praeteriisse. Suetonius, in Caes. (Cap. LXXXI. in fin.) Dion Cassius expresses the Soothsayer’s Words thus, Πα̂ρεστιν, οὐδέ πω δὲ παρελήλυθεν. (Lib. XLIV.) And Appianus Alexandrinus, Πάρεισιν αἱ Ἐιδοι, Ἀλλ’ οὐ παρεληλν̂θασιν. (De Bell. Civ. Lib. II. p. 522. Edit. H. Steph.) Grotius.
[6. ]But see Pufendorf, in the Chapter already cited more than once, § 8. What our Author says here is so much the worse founded, as it does not agree with what he had said just before himself; that in Regard to a Truce, the Prolongation of Time has something favourable in it. Strauchius, in the Dissertation I have cited before, Cap. V. § 2. had long ago declared himself against our Author, upon this Head.
[1 ]They cannot know it certainly before that: And the Case is the same as when the War began. It frequently happens that there is Reason to believe, from the Preparations making, and the Rumours or Advices to be relied on, that a War is resolved: However, till the Declaration of it be published in Form, no one ought to attack the Enemy, as may be done afterwards. So that nothing is more frivolous, than the Objections which some Commentators make in this Place against our Author’s Opinion.
[2. ]It is true they are not in fault, as it is supposed, that the Truce could not be notified sooner to such as are at a remote Distance. But as each Party stands engaged for himself and Subjects, who, from the Moment the Truce is concluded, should all be held to discontinue Acts of Hostility, if it were possible for them to be apprized of the Treaty, which ought immediately to be notified to them; each ought also to be deemed as engaged to disapprove, and hold for null, all Acts of Hostility committed in remote Places, and, in Consequence, to make all possible Amends to such as have suffered by them. It suffices, that they are not responsible for the Impossibility they have been under to prevent them, and that it cannot reasonably be considered as an Infringement of the Truce.
[3. ]This the Athenians pretended, in Relation to Scione, which had surrendered two Days after the Conclusion of a Truce. See Thucydides, Lib. IV. (Cap. CXXII.) So what the Spaniards did in Italy, according to Mariana, XXVIII. 7. is not to be justified. Grotius.
[1 ]The Truce is here supposed to be general. But sometimes a Truce is made for certain Places only, for Instance, by Sea, and not by Land: Or in Regard to certain Acts of Hostility, as the ravaging of the Country, &c. See Pufendorf, in the Chapter cited above, § 3. Our Author observed, in a small Note upon § 10. that Examples of Truces may be found in Procopius and Menanderthe Protector, in which certain Places were excepted.
[2. ]Nunc Fraudem hostium incusans, qui, pace petita, induciis datis, per ipsum induciarum tempus, contra jus gentium, ad castra oppugnanda venissent. Lib. XL. Cap. XXVII. Num. 9.
[3. ]See the Law cited above, § 1. Note 23.
[4. ]Denique obsessa urbe, &c. In Aeneid, XI. 134. But here the Safety of Egress and Regress is rather meant, than the Care not to do any Thing in going out and coming in, that may give Umbrage to the other Party. For the Rest, the Reader may see the Paroemiae Juris Germanici of the late Mr. Hertius, II. 14, 15. wherein he explains in what Manner safe Conduct is abused.
[a ]See an Example in Paruta, l. 3.
[1 ]Coronaei & Haliartii, &c. Lib. XLII. Cap. XLVI. Num. 9, 10.
[a ]Port, Centcelles, and Albe.
[1 ]But see what I have said against Pufendorf, who is of the same Opinion, § 10. of the Chapter already cited several Times. Our Author, and Strauchius, who follows him, (Cap. ult. § ult. Diss. De Induciis.) have here departed without Reason from Albericus Gentilis, De Jure Belli, Lib. II. Cap. XIII.
[a ]B. 3. c. 9. § 4.
[2. ]Tamen eum, qui ante Idus Martias profectus ex portu, & relates tempestate in Insulam deductus esset, si inde exisset non videri contra legam fecisse. Digest, Lib. XXXIX. Tit. IV. De Publicanis, & Vectigalibus, & Commissis, Leg. XV. Si propter necessitatem adversae tempestatis expositum onus fuerit, non debere hoc commisso vindicari, Divi Fratres rescripserunt. Ibid. Leg. XVI. § 8.
[1 ]They cannot, for Instance, retire during that Time, into a more secure Post, nor intrench themselves. Pufendorf, in the Chapter to which I have referred several Times, is of a different Opinion, § 9. He maintains, after Strauchius, (Diss. De Induc. Cap. V. § 4.) that these Sort of Things, which tend solely to put one’s self into a State of Defence, have nothing unlawful in them, because no one is deemed to renounce his Right to defend himself. And, adds he, it is the Fault of him who grants such Truce, if it gives the Enemy Opportunity to render himself stronger. But these Reasons, upon close Examination, prove nothing: And the late Mr. Battier, whom I have quoted before, has declared, with Reason, for Grotius, in a small Academical Dissertation, intitled, De Induciis Bellicis, printed in 1697. The Party, says he, that hath granted a short Truce for the Interment of the Dead, hath granted it for that Purpose only, and there is all the Reason in the World to believe, that he would not have permitted any Thing further, had it been demanded of him. And besides the Reason alledged by our Author, if, in the Time granted by the Truce for the Interment of the Dead, the Enemy endeavours to intrench himself, and we prevent him by Force, I do not see that he can have any Room to complain. Now how could one and the same Convention give one Party a Right to do a Thing, and the other to prevent it? I add, that the Right of defending one’s self, which Pufendorf speaks of, and which no one, he says, is supposed to renounce, regards only the Case wherein one is actually attacked, and not the Measures which may be taken to prevent a remote and uncertain Danger. Now the Question here relates to the latter. For the Rest, the Examples of Tissaphernes, from Cornelius Nepos, in Agesil. Cap. II. and of Xenophon, Orat. de laud. Agesil. Cap. I. § 10, 11. Edit. Oxon. are very apposite. But as to that of Philip, alledged by Mr. Battier, and others, after Albericus Gentilis, Lib. II. Cap. XIII. p. 313. it is not applicable here, but to the Case our Author speaks of in § 7. where he also alledges precisely the same Fact. He who first cited it repeats it wrong: Se recepit, says he, in loca tutiora, which Livy does not say, but only that Philip decamped without Noise. Silenti agmine abiit, Lib. XXXI. Cap. XXXVIII. at the End.
[2. ]As the Neapolitans obtained from Totilas, in Procopius.
[3. ]See the Decretals, Tit. De Judaeis. Cap. XI.
[4. ]By reserving a Right to pillage, when the Security of Persons on both Sides is agreed on; the Right of defending against Pillage is also reserved: And hence the Security of Persons is not general; but only for such as go and come without Intent to take any Thing from the Enemy, with whom such limited Truce is made.
[a ]B. 3. c. 19. § 14. and c. 20. § 35.
[1 ]In this Case, the Party against whom Hostilities are committed, notwithstanding the Truce, may also, besides the Penalty stipulated by it, exact Amends for what he has otherwise suffered by the Infraction of the Treaty. Mr. Battier makes this Remark in the Dissertation cited before, § 10. or last.
[2. ]See Pufendorf, Law of Nature and Nations, § 11. of the Chapter which answers to this.
[† ]The original English text reads “Truth” instead of “a Truce.” I have corrected it following the Latin (inducias) and the marginal note in the English version.
[1 ]If, for Instance, to treat of Peace be the Matter in Question, and the Passport has been given for that End.
[1 ]Thus, in the Roman Law, concerning privileged Wills, the Word Miles, in Opposition to that of Paganus, generally signifies all those who are actually upon a military Expedition, whether they command or obey, are Officers or common Soldiers.
[2. ]According to which those who obey are called Milites, or Troops, in Opposition to Officers, Generals or Subalterns. This is a known Thing, and Albericus Gentilis proves it by Authorities, in his De Jure Bell. Lib. II. Cap. XIV. p. 321. where he decides in a different Manner from our Author, both upon this and the following Example.
[3. ]The Word Κληρικοὶ, from whence the Latin Clerici, and our Words Clerk, and Clergy, are derived, included at first, that is to say, from the Beginning of the third Century, when this Custom was introduced, all publick Ministers of Religion, of whatsoever Order they were; in Opposition to Laicks, (Λαϊκοὶ) or simple Believers. See Mr. Boehmer’s Dissertation, De differentia inter Ordinem Ecclesiasticum & Plebem, seu inter Clericos & Laicos, which is the sixth of his DissertationesJuris Ecclesiasticiantiqui adPlinium Secundum, & Tertullianum, and the ninth Dissertation of the same Collection, § 2. as also the fifth Chapter of his Origines praecipuarum materiarum Juris Ecclesiastici, published with his Schilterusillustratus. To which may be added, the fifth Chapter of the first Book of Mr. Bingham’s Antiquities of the Christian Church, from which the learned and judicious Author of the Bibliotheca Anglicana has given us several curious Extracts. But in Process of Time the Term Clerk or Clergy was confined to Ecclesiasticks of an inferior Class; so that Bishops were not comprehended under that Name. Examples of this are very common; and to this relates a Passage of the Decretals, cited by our Author in the Margin, but which is improperly placed in the Margin of the preceding Paragraph, in all the Editions of the Original, without excepting mine, (Mr. Barbeyrac’s) where the Printers have forgot to put it in its right Place, as I had marked it in their Copy. Clericisane, si contra istam formam quemquam elegerint; & eligendi tunc potestate privatos, & ab Ecclesiasticis beneficiis triennio noverint se suspenses—Episcopusautem, si contra hanc fecerit, aut consenserit fieri, in conferendis praedictis Officiis & Beneficiis potestatem amittat, &c. Lib. I. Tit. IV. De Electione & Electi potestate, Cap. VII. § 3. In the Codex Theodosianus the Bishops are called Primi Clerici, Lib. XVI. Tit. VIII. De Judaeis, Caelicolis, &c. Leg. XIII. See the learned James Godofroy, p. 228. Vol. VI. and p. 31, 32. of the same Volume.
[4. ]In classibus omnes Remiges & Nautae milites sunt; & jure militari eos testari posse, nulla dubitatio est. Digest, Lib. XXXVII. Tit. XIII. De bonorum possessione ex testamento militis, Leg. I. § 1.
[1 ]There may be however some Cases in which the one does not imply the other. Let us suppose, for Instance, that a safe Conduct is granted to some Person of the Enemy’s Party to go, not into some other Place of their own People’s, but into a third or neutral Country; to Rome, for Example, or into France, when he cannot go thither without passing through the Dominions of him who grants the Passport: In that Case, if he would return by the same Rout, a new Passport is necessary; the Advantage of the first being expired. This the late Mr. Hertius, after others, very well observes, in his Dissertation De Literis Commeatûs pro pace, § 13. p. 327, 328. Vol. I. Opusc. & Commentat.
[2. ]This was a Blot, says Plutarch, that tarnished the Lustre of that Conqueror’s military Actions, who, on other Occasions, made War with Justice, and in a Manner worthy of a King. (In Vit. Alexandr. p. 698. C. Vol. I. Edit. Wech.) Leunclavius relates a like Treachery of Bajazet to the People of the City of Widin in Servia. Hist. Turc. Lib. VI. Grotius.
[3. ]Mr. Hertius maintains, however, in the Dissertation which I have cited a little above, (§ 15. p. 330.) that when a Passport is given in Order to treat of Peace, as that may be done, either in Person or by another, the Party may either go himself or send another in his Place.
[4. ]If, for Instance, it be expressed, that he may come during six Months, and if he can go and come several Times during that Term.
[1 ]Quum precario quis rogat, ut ipsi in eo fundo morari liceat: Supervacuum est adjici, ipsi suisque. Nam per ipsum suis quoque permissum uti videtur. Digest, Lib. XLIII. Tit. XXVI. De Precario, Leg. XXI. seu penult.
[1 ]When, for Instance, it is expressed with his French or German Attendants. Our Author insinuates, that if it be only said, with his Attendants, or Followers, it does not signify of what Nation they are. By which he tacitly rejects the Opinion of Albericus Gentilis, who, in his Treatise De Jure Belli, Lib. II. Cap. XIV. p. 325. inclines to believe, that when the Nation is not expressed, it is supposed the Attendants or Train ought to be of his Nation to whom the Passport is given.
[1 ]It may, however, be revoked, in my Opinion, if the Successor deem it proper for good Reasons; but in such Case it is necessary, that the Person to whom the safe Conduct has been granted, should have Notice given him to retire, and the necessary Time allowed him for removing into a Place of Safety.
[a ]B. 2. C. 14. § 12.
[1 ]The Clause, during Pleasure, implies in itself a Continuation of safe Conduct, till it be expressly revoked, and the Change of Will thus signified, which otherwise is deemed always to subsist, whatever Time may be elapsed. This is also the Decision of Albericus Gentilis, De Jure Belli, Lib. II. Cap. XIV. in fin. where he adds another Example of the Exception, which our Author makes here after him; that is, when he who has given the safe Conduct is no longer in the Employment, by Vertue of which he was empowered to grant such Security. And indeed his Authority concluding at that Time, he is no more in a Condition to continue his good Will, than if he were dead.
[2. ]Thus when a Person has given a Lodging in his House to another, during his own Pleasure, and happens to die, the Heirs may turn the other out of the House; as it is determined in a Law, explained according to the Correction of a great Man, Mr. Anthony Faure, (Conject. Jur. Civ. Lib. II. Cap. XIX. Lucius Titiusepistolamtalem misit: Ille illi salutem. Hospitio illo, quamdiu voluero [so this learned Civilian reads it, for volueris] utaris, superioribus diaetis omnibus gratuito: Idque te ex voluntate mea facere, hac epistola tibi notum facio. Quaero, an haeredes ejus habitationem prohibere possunt? Respondit, secundum ea quae proponerentur Haeredes ejus posse mutare voluntatem. Digest. Lib. XXXIX. Tit. V. De Donationibus, Leg. XXXII. This is very clearly expressed in another Law: Locatio, precariive rogatio, ita facta, quoad is, qui eam locasset, dedissetve, vellet, morte ejus, qui locavit, tollitur. Lib. XIX. Tit. II. Locati conducti, Leg. IV. See Cardinal Tuschus, Pract. Conclus. 751. lit. p. Reinking, Lib. II. Class. II. Cap. VIII. Num. 30. Grotius.
[a ]B. 3. ch. 4. § 8.
[1 ]Captivorum redemtio, magnum atque praeclarum justitiae munus est. Inst. Divin. Lib. VI. Cap. XII. Num. 15. Edit. Cellar.
[2. ]Praecipua est igitur liberalitas, redimere captivos, & maxime ab hoste barbaro, &c. De Offic. Lib. II. Cap. XV.
[3. ]Ornatus sacramentorum, redemtio captivorum est. Ibid. Cap. XXVIII. St. Austin imitated this Action, as Possidius relates, who says, that some worldly Persons did not approve it. (De Vita Augustin. Cap. XXIV.) Another Bishop of Africa, named Deo-gratias, did the same Thing, as Victor Uticensis informs us, Lib. I. Hincmar, in his Life of St. Remigius relates, that a consecrated Vessel, which had been that Prelate’s, was given to ransom Prisoners taken by the Normans.Mark Adam, in his Ecclesiastical History of Bremen, relates a like Action of Rembert, Archbishop of that City. The sixth, or rather eighth, General Council approved such a Use of consecrated Vessels; and the Decree thereupon has been inserted in the Canon Law, Caus. XII. Quaest. II. Can. XIII. Grotius.
[1 ]The learned Boecler, in his Dissertation, intitled, Miles Captivus, (Vol. I. p. 981.) criticises our Author upon this Place. There are, says he, no other Roman Laws, that prohibit the ransoming of Prisoners, but those of the military Discipline, the Violation of which was punished in that Manner. There is not one that forbids entirely the ransoming of Prisoners: But when the Roman Soldiers were taken by the Enemy, it was examined, whether they had observed the Laws of military Discipline, and in Consequence, whether they deserved to be ransomed. It is true the Side of Rigour generally prevailed; as that which was thought most advantageous to the Republick; from the Persuasion, that many had fallen into the Enemy’s Hands, only in Consequence of some Fault contrary to their Engagements. This is all the Passage cited by Grotius proves; and T. Manlius Torquatus, in opposing the ransoming of Prisoners, speaks only of an antient Custom. Utmorem traditum a patribus, necessario ad rem militarem exemplo, servaretis.Livy, XXII. 60. Num. 7. Whether the Laws themselves of the Roman military Discipline were not too rigorous, is a different Question.
[2. ]Nemo nostrûm ignorat, nulli umquam civitati viliores fuisse captivos, quam nostrae, &c. Livy, Lib. XXII. (Cap. LIX. Num. 2.) See another Passage of the same Author, [quoted above, Chap. IX. of this Book, § 4. Num. 2.]
(Lib. III. Od. V. ver. 13. & seq. 26, 27.) Grotius.
[4. ]The Emperor Maurice seriously repented an Inhumanity of the same Kind, which he had committed. See Zonaras, in his Life. Grotius.
[a ]B. 2. Ch. 25. § 3.
[1 ]It suffices to say, that the Circumstance of the Prisoner’s having more or less Riches, has no Relation to the Engagement. So that if his Ransom was to be settled by his Worth, that Condition should have been put in the Contract.
[a ]B. 2. ch. 12. § 26.
[a ]B. 3. Ch. 7. § 4.
[1 ]Caeterum quodBrutus & Manilius, &c. Digest, XLI. Tit. II. De adquir. vel amitt. possess. Leg. III. § 3. See Cujas upon this Point, Recit. in Paulum, ad Edictum, Vol. V. Opp. p. 748.
[2. ]When Prisoners of War became Slaves, as, according to the received Custom, the Master acquired a Right of Property both over their Persons and Estates; it was not necessary, that he should actually take Possession of all they might have, or even have Knowledge of it, provided he could seize it, when discovered: The Intention of appropriating to himself all the Goods known or unknown of his Prisoner, was evident, and a natural Consequence of the Thing; as when a Person acquires an Estate in Land, where there may be many Things which have a natural Dependence upon it. But the Case is different amongst us, with whom the Custom of Slavery is abolished. Whatever desire we may have to take and appropriate all that belongs to a Man we have made Prisoner of War, we have no other Right over his Person, than to detain it till a Ransom be paid, or Peace concluded. So that we may search, rifle, and appropriate all we can find, that belonged to him; but if we have neglected to make the necessary Search, or the Prisoner, who is under no Obligation to declare all he has, has found Means to conceal something from us; there is then no Acquisition of that Thing; neither is it acquired as a natural Dependence of some other Thing, as the Prisoner does not belong to him, who took him. So that the Example of the Treasure, unknown to the Master of the Land, is very proper here. And further: Let us suppose that before any Agreement concerning Ransom, the Person, in whose Possession the Prisoner is, discovers some Effects belonging to the Prisoner in the Hands of a third Person, but which this third Person has found either amongst the Booty made in plundering, or in the Hands of another Prisoner, whom he has taken himself: Will any Body say, that these Effects may be reclaimed by the former, upon Pretence that they belonged to his Prisoner? So that Ziegler’s Criticism is no better founded here, than almost every where else. I must say the same of the late Mr. Hertius’s Thought, who in his Dissertation De Lytro, (Sect. II. § 30. p. 287. Vol. I. Opusc. & Comm.) tho’ he falls in with that Commentator in regard to the pretended Acquisition of Effects unknown, approves however our Author’s Decision, and makes it extend even to Prisoners of War, who actually become Slaves. His Reason is, that he who treats with his Prisoner, does thereby declare, that he is contented with the Ransom he requires of him: Whence he is deemed from thenceforth to have lost Possession of the Effects, which he had acquired with the Person; and much more, of those which he had acquired without acquiring at the same Time a Right of Property over the Person. But he who treats for Ransom with his Prisoner, intends certainly to gain something: He would gain nothing, if the Prisoner only gave him what he has already. Thus if we suppose, that even the concealed Effects belonged to him, it is evident he must have treated only under this Condition, that there shall be nothing of that Kind in what is given him for the Ransom: So that the Condition not being performed, the Agreement falls to the Ground of course. For this Reason, the Decree of Scanderbeg, which Pufendorf also repeats, B. VIII. Chap. VII. § 12. is rather a favourable Decree, passed in Consideration of the unhappy Condition to which Persons are reduced by Slavery, than a Sentence founded upon the Rigour of Law. For as that famous Captain made War with the Turks, he had a Right to authorize, and undoubtedly did authorize, by way of Reprisals, the Slavery of the Prisoners of War.
[a ]B. 2. ch. 2. § 22. and ch. 15. § 16. B. 3. ch. 20. § 58.
[1 ]This Paul Balioni did not do, who was released upon Condition of setting Cardinal Carvajali at Liberty, who died whilst a Prisoner. And Mariana, Hist. Hisp. Lib. XXX. blames Balioni for having acted in that manner. But Paruta, Lib. II. relates the Fact with some little Difference. Grotius.
[2. ]As thus. A Person has given a Thing, in order to have another for it. He who was to give it, fails, whether he be able to give it, or not being able, he is or is not in Fault: In this Case, the other contracting Party may either bring his Action praescriptis verbis, for Damages and Interest, or redemand what he has given, even tho’ the Thing, he ought to receive, has perished by some fortuitous and inevitable Accident; as well because he had given what was his with the View of something he has not had, as because in this Kind of Contracts, which had no proper and peculiar Name, he who had begun the Execution in this Manner, was at Liberty to retract, before the other had performed his Engagements. See Digest, Lib. XIX. Tit. V. De Praescriptis verbis, &c. Leg. V. § 1. and Lib. XII. Tit. IV. De condictione caussâ datâ caussâ non sequuta, Leg. ult. Laws cited by our Author in the Margin. The Reader may consult Mr. Noodt, Probabil. Jur. Lib. IV. Cap. IV. and V. where he learnedly and judiciously explains, according to his Custom, these Laws which are both difficult, and one of them corrupt in one Place. See also what I have observed, upon B. II. Chap. XII. § 3. Num. 3. According to these Principles of the Roman Lawyers, the Person who has released a Prisoner of War in the Case in question, would have a Right to oblige that Prisoner to return into Captivity after the Death of the other.