Front Page Titles (by Subject) CHAPTER XXII: Concerning the Faith of inferior Powers in War. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XXII: Concerning the Faith of inferior Powers in War. - 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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Concerning the Faith of inferior Powers in War.
I.The several Kinds of Commanders.I. Among publick Agreements Ulpian1 reckons this as one, When the Generals of each Army agree some Things between themselves. I promised, that after having discoursed on Faith given by Sovereign Powers, to say something of that given by Inferior ones, either between themselves, or unto others; whether those Powers be immediately next to the Sovereign, such as Generals, so called by way of Excellency; to which we may apply that of Livy,2We allow no other as General, but he to whose Conduct the whole War is committed; or those of a lower Rank, whom Caesar thus distinguishes,3The Duty of a Lieutenant General is one Thing, and that of a Commander in Chief another. The one is to execute Orders, the other to do whatever he judges proper for the Management of Affairs.
II.How far an Agreement made by them obliges the Sovereign Power.II. There are two Things to be examined with respect to their Engagements. As whether they thereby engage the supreme Power, or whether themselves. The former1 Query may be determined by what I have saida elsewhere, viz. That we are obliged by those whom we depute to be Ministers of our Wills, whether that Will be specially expressed, or gathered from the Nature of their Commission. For he that grants a Power, grants, as much as he can, all Things necessary to the Exercise of that Power, which in moral Things is to be morally understood. Inferior Commanders therefore may bind their Sovereigns two several Ways, either by doing that which they think is probably included in their Office, or by doing that which belongs not to it, yet have a special order to do it, which is either publickly known, or to those with whom they treat.
III.Or gives Occasion to such an Obligation.III. There are also other ways, where by a Sovereign Power may be obliged by the previous Facts of his Ministers, but yet not so, that that Fact is the proper Cause<727> of that Obligation, but only the Occasion of it; and that two Ways, either by consenting to it, or by the Thing itself. Their Consent will appear by their Ratification, which may be not only express, but tacit; that is, when the Sovereign had Knowledge of what passed, and yet permitted Things to be done, which cannot probably be referred to any other Cause, than the Execution of the Engagements contracted without his Participation. In what manner, and how far, this Approbation may be presumed, we havea shewed in another Place. By the Thing itself he may be so far obliged, as not to enrich himself by another’s Loss; that is, either that he perform the Agreement, by which he is willing to receive a Benefit, or quit that Benefit; of which Equity I have alsob treated elsewhere. And thus far, and no farther, that Saying holds true, Whatever brings Profit, is binding. On the contrary, we must condemn them of Injustice, who refuse to perform the Agreement, and yet still retain that, which they could never have had without the Agreement; as when the Roman Senate could neither approve the Fact of Cn. Domitius, nor would make it void, as Val. Maximus1 observes: We meet with many such Examples in History.
IV.What if any Thing be done contrary to Command? This explained by Distinctions.IV. 1. And here we must repeat what we have formerlya said, viz. that the Sovereign is obliged by the Fact of his Agent, tho’ he act contrary to his private Instructions, provided he keep within the Bounds of his publick Office. The Roman Praetor well observed this Equity in Actions relating to Factories. For not every Contract made by a Factor,1 binds the Person that employs him, but such only as regard the Affairs for which he is appointed Factor; but2 if it be publickly notified, that no Man should henceforward contract with him, he shall not be any longer treated with as an Agent. But tho’ such a Declaration be made,3 yet if it be not known to the Contractors, he that employed him shall be obliged. It must likewise be considered,4 on what Foot the Factor was appointed: For if he was ordered to treat under certain Conditions, or by the Intervention of a certain Person, he ought necessarily to follow the Method prescribed him; in Default of which, we have a Right to disown what he has done.
2. Whence it follows, that Kings or People, some more, some less, may be bound by the Contracts of their Generals, if their Laws and Constitutions be sufficiently known. But if they be not well known, we must follow the most probable Conjectures, which always suppose that to be within their Power, without which they cannot well discharge the Functions of their Office.
3. If a publick Minister exceeds his Commission, and promise more, than he can perform, he himself shall be bound to full Restitution, unless some well known Law shall hinder it. Or if there be any Deceit in it, as if the Minister should pretend to a greater Power than really he has, he shall then be bound also to make Satisfaction for the Damages consequent thereto; nay, he may be punished for his Deceit, in Proportion to the Greatness of the Crime. In the former Case his Goods are liable to make a Recompence, but if they are not sufficient, his Service or corporal Liberty. In the latter also, his Person or his Goods, or both, according to the Greatness of his Crime: But as to what I have said of Deceit, it will not be enough in Case of it, to declare beforehand, that he will not oblige himself, for both Satis-<728>faction for Damages received, and Punishment for an Offence committed are due,5 not by a voluntary, but by a natural Connection.
V.In such a Case whether the other Party stands obliged?V. But because in all such Agreements either the Sovereign, or his Ministers, stands obliged, therefore by Consequence the other Party stands engaged likewise, neither can it be said the Contract is imperfect. Thus we have done with the comparing the inferior Powers to their Superiors.
VI.What the Generals in War, or Magistrates may do concerning their Inferiors, or for them.VI. Let us also see, what Power they have over their Inferiors; neither is it to be doubted, but that a General may oblige his Soldiers, and a Magistrate those of his Town, as far as the Power they generally have to command them extends; for as to other Things, there must be a Consent on their Part. On the contrary, an Agreement made by a General or Magistrate in Things merely advantageous, shall always turn to the Profit of the Inferiors; for that is plainly included in the Power of the Superior, and in such Things as may be burthensome, provided those Burdens are usually exacted, but otherwise not without their Acceptance: Which Things agree to what we havea already established concerning the Effect which, according to the Law of Nature, a Stipulation has in favour of a third Person. But these Generals will be more clearly illustrated by handling of the Particulars.
VII.It is not in the Power of Generals to make a Peace.VII.1 It does not belong to a General to examine the Causes, or Consequences of a War, for it is his Business to manage the War, not to conclude it, no, tho’ he has an unlimited Power in his Commission, that being only understood of the Conduct of War. Agesilaus thus answered the Persians,2It was only in the Power of the State to make Peace. Therefore the Roman Senate made void that Peace, which Albinus made with King Jugurtha, as Salust3 tells us, because it was made without the Order of the Senate. And in4Livy, How can that Peace be established, which is made without the Authority of the Senate, or Decree of the People of Rome? Therefore the Treaty made at the Furcae Caudinae, and at Numantia, did not bind the People of Rome, as we havea shewed in another Place. And thus far is that of Posthumius true,5If there be any Thing to which the People may be obliged, they may to all Things; that is, those Things that do not belong to the Conduct of War; and this is evident from what that General had said just before concerning Conventions, whereby one should engage that the City of Rome should surrender, or that the Romans should abandon it, or set Fire to it; or that they should change the Form of their Government.
VIII.Whether he may grant a Truce? This is distinguished.VIII.1 To grant a Truce is in the Power not only of a General, but of inferior Commanders, that is, unto those whom either they attack or besiege, as far as it concerns<729> them, and the Forces under their Command. For they cannot thereby oblige2 other Commanders who are equal to them, as the History of Fabius and Marcellus in Livy informs us.
IX.What Protection of Persons, or Things, may be granted by them.IX. 1. It is not in the Power of Generals to release Persons or dispose of Sovereignties, or Lands gained in a War; upon which Account Syria was taken from Tigranes,1 tho’ Lucullus had bestowed it upon him; neither could Masinissa release Sophonisba, whom he had taken in War, 2 for Scipio maintained, that she was under the Power, and at the Discretion of the People of Rome: But as to other Things, which are by way of Prey, the General has some Power given him to dispose of them, yet not so much by Virtue of his Authority, as from the Custom of each Nation, of which we have saida enough before.
2. But as to Things not as yet actually possessed, it is certainly in the General’s Power to grant or leave them; because in War many Cities and Men often surrender themselves, upon Condition of preserving their Lives or Liberties, or sometimes their Goods, concerning which the present Circumstances do not commonly allow so much Time as to consult the Sovereign. By a Parity of Reason, this Right ought to be granted to inferior Commanders concerning Things within the Extent of their Commission. Maharbal in the Absence of Hannibal had promised to some Romans that had escaped at the Battle of Thrasymene, to give them not only their Lives, as Polybius3 too concisely expresses it, but also, upon delivering up their Arms, to let them depart every one4 with a Suit of Cloaths. Hannibal detained them under Pretence5That Maharbal had not Power to grant such Security, without his Approbation, to People that surrendered themselves. And Livy censures his Action thus.6 Hannibal kept his Faith like a true Carthaginian.
3. Wherefore let us consider M. Tully rather as an Orator, than a Judge, in the Cause of Rabirius. He would argue that Saturninus was lawfully killed by him, tho’ Marius the Consul had got him out of the Capitol upon Promise of Life.7How could<730> Faith (says he) be given, without a Decree of the Senate? And so would infer, that the Faith given by Marius did only oblige himself; but C. Marius was empowered by the Senate to do whatever he should judge proper for maintaining the Empire and Majesty of the Roman People. This was the greatest Authority that could be8 given according to the Custom of the Romans: And who can say that it did not include the Right of granting Impunity to any one, if that were absolutely necessary for the Security of the State?
X.Such Agreements are to be taken in a strict Sense, and why.X. But in these Agreements made by Generals, because they act for another, the strictest Interpretation is to be taken, as far as the Nature of the Contract will allow, that by their Fact their Sovereign be not more obliged than he is willing, or themselves suffer Damage in doing their Duty.
XI.How a Surrender accepted by a General is to be understood.XI. So he that is accepted of by a General upon an absolute Surrender, shall be judged to yield himself wholly to the Will of the Conqueror, whether of the King or People. An Instance of which we have in Gentius, King of Illyria,1 and Perseus of Macedon, of which the former yielded to Anicius, the other to Paulus.
XII.How that Caution is to be understood, if the King or People please.XII. Wherefore the adding of this Caution, It shall be established if the Sovereign ratify it, which we often find in Agreements, will provide, that if the Agreement be not allowed by the Sovereign, the General himself shall be bound to nothing, except so far as he has reaped an Advantage by the Convention.
XIII.How the Promise of delivering up a Town is to be understood.XIII. And they who have engaged to deliver up a Town, may dismiss their Garrisons, as we read the Locrians did.
[1 ]Publica Conventio est, quae fit per pacem, quotiens inter se Duces belli quaedam paciscuntur. Digest, Lib. II. Tit. XIV. De Pactis. See upon this Law, the fine Treatise of Mr. Noodt, De Pactis, Cap. VII. where he shews, that aut quotiens, &c. should be read with some antient Editions, so that there are two different Examples in this Place; the one of Conventions made when a Peace is treated of; the other of those made during a War between the Generals of the two opposite Armies. It must be confessed however, that the Words, quae fitper pacem, so explained, have some thing very stiff in them, as Mr. Schulting observes, Enarrat. in primam partem Pandectarum, ad Tit. De Pactis, § 2. I find in the Dissertation of a learned German Civilian, named Strauchius, (De Induciis, Cap. III. § 1.) which I have cited upon the preceding Chapter, an overture, of which use may be made here in joining to it the Particle aut, that he did not think of. He conjectures, that Ulpian intended to distinguish two Sorts of publick Conventions: The one made during Peace, or between those who live in Peace with each other; the other, made during a War, wherein the Generals usually treat in the Name and by the Authority of the State, for which they command. Upon this Foot the natural Signification of the Terms, per pacem, is preserved in all the Purity of the Latin Tongue.
[2. ]Nec ducem novimus, nisi sub cujus auspicio bellum geritur. Lib. IV. (Cap. XX. Num. 6.)
[3. ]Aliae enim sunt Legati partes, aliae Imperatoris: Alter omnia agere ad praescriptum, alter libere ad summam rerum consulere debet. Comm. de Bell. Civil. Lib. III. Cap. LI.
[1 ]See Cambden, upon the Year 1594. where he relates the Sentence of Count Miranda in the Affair of Hawkins, (p. 629. & seq. Edit. Amst. 1625.) Grotius.
[a ]B. 2. ch. 2. § 12.
[a ]B. 2. ch. 4. § 5. and ch. 15. § 17.
[b ]B. 2. ch. 10. § 2.
[1 ]Cneus Domitius had taken by Treachery, and carried to Rome, Bituitus King of Auvergne. The Roman People did not approve that Action: However they would not set the King at Liberty, lest upon his return Home, he should renew the War. Cujus Factum Senatus neque probare potuit, neque rescindere voluit, ne remissus in patriam Bituitus bellum renovaret. Lib. IX. Cap. VI. Num. 3.
[a ]B. 2. ch. 2. § 12, 13.
[1 ]Non tamen omne quod cum institore geritur obligat eam qui praeposuit: Sed ita, si ejus rei gratiâ, cui praepositus fuerit, contractum est, id est, dumtaxat ad id, ad quod eum praeposuit. Digest, Lib. XIV. Tit. III. De Institoria Act. Leg. V. § 11.
[2. ]De quo palam proscriptum fuerit, ne cum eo contrahatur, is praepositi loco non habetur. Ibid. Leg. XI. § 2. Proscribere palam, sic accipimus, claris literis, unde de plano rectè legi possit: ante tabernam scilicet, vel ante eum locum, in quo negotiatio exercetur: Non in loco remoto, sed in evidenti, § 3.
[3. ]Whether the Bill fixed up be writ in such a Manner, as it cannot be well read, or has been taken away, or spoiled by the Rain, or some other Accident: Proscriptum autem perpetuo esse oportet. Caeterum si per id temporis, quo propositum non erat, vel obscurâ proscriptione, contractum: Institoria locum habebit. Proinde si dominus quidem mercis proscripsisset, alius autem sustulit, aut vetustate, vel pluvia, vel quo simili, contingit, ne proscriptum esset, vel non pareret: Dicendum, eum, qui proposuit, teneri. Ibid. §4.
[4. ]Conditio quoque praepositionis servanda est: Quid enim si certa lege, vel interventu cujusdam personae, vel sub pignore, voluit cum eo contrahi, vel ad certam rem? Aequissimum erit, id servari, in quo praepositus est. Ibid. § 5.
[5. ]It is not so much for this, as because the other Party supposed in treating, that the publick Minister acted with Integrity, without which he would have been far from treating. Otherwise, if he had been so imprudent to treat, tho’ he knew the Minister assumed more Power than he actually had: Whatever Knavery the latter was guilty of the other Party, because he knew it, and yet acquiesced in the Minister’s Protestation, would have renounced his Right to exact any Punishment or Amends; and ought to be deemed to have been willing to risk the Default of the necessary Ratification.
[a ]B. 2. ch. 2. § 18.
[1 ]Belisarius told the Goths, that he had no Power to dispose of the Emperor’s Affairs. Procop. Gotthic. Lib. II. (Cap. VI.) Grotius.
[2. ]Plutarch, in Agesil. p. 601. B.
[3. ]Senatus, ita uti par fuerat, decernit, suo atque Populi injussu nullum potuisse foedus fieri. Bell. Jugurth. Cap. XLIII. Edit. Wass. The Words, which our Author repeats in Italick Letters, as that Historian’s, are not his.
[4. ]Aut cui rata ista pax erit, quam sine Consule, non ex auctoritate Senatûs, injussu Populi Romani, peregerimus? Lib. XXXVII. Cap. XIX. Num. 2.
[a ]B. 2. ch. 15. § 16.
[5. ]Si quid est in quod obligari Populus possit, in omnia potest.Livy, Lib. IX. Cap. IX. Num. 7.
[1 ]Pufendorf with Reason excepts such Truces, as Occasion all the Resemblance of War to disappear entirely, and come very near a real Peace: Law of Nature and Nations, B. VIII. Chap. VII. § 13. In my Opinion, those should be also accepted, which, continuing the Appearance of War, are made for any considerable Time. This is the Thought of Ayala, De Jure & Officiis Bellicis, Lib. I. Cap. VII. Num. 6. and of Albericus Gentilis, De Jure Belli, Lib. II. Cap. X. § 288, 289. and Cap. XII. p. 305. See also Mr. Vitriarius, Instit. Jur. Nat. & Gent. Lib. III. Cap. XV. Quaest. IX. And certainly Truces of this Kind are of too great Consequence to be left entirely to the Discretion of a General of an Army. Besides, Circumstances are not always so urgent, as not to admit of Time for consulting the Sovereign, which a General ought to do as much as possible, both for the good of the Publick, and his own Interest, even in regard to Things, which it may be in his own Power to transact. Amongst the Romans, Truces of any Length were never granted but by the Senate and People. There have been Nations (as the late Mr. Battier observes in his Dissertation De Induciis Bellicis which I have cited upon the preceding Chapter) who would not give their Generals Power to make any Truce, tho’ for a short Time. So Agis, King of Lacedaemon, on one Side, and Thrasyllus with Alciphron, Generals of the Argives, on the other, having concluded a Truce for four Months, it was declared void by both States: And the Lacedaemonians were so much offended at Agis for having taken that Liberty, that they decreed he should do nothing for the future without the Participation and Consent of ten Counsellors, whom they nominated. This is in Thucydides, Lib. V. Cap. LIX. LX. LXIII. Edit. Oxon. and not in Dionysius Halicarnassensis, Lib. II. which Mr. Battier cites here, § 3. not being aware that Ayala, upon whose Authority he undoubtedly repeats it, (for he gives, as he does, the Name of Thrasybulus to one of the Generals of the Argives, whereas his Name was Thrasyllus) that Ayala, I say, only cites that Greek Historian of the Roman Antiquities, to prove that the Kings of Lacedaemon were not absolute.
[2. ]And much less, upon this Foot, superior Officers and Commanders in Chief. So that, if after the Truce be granted, and during its Continuance, some other Commander finds Occasion for attacking, with the Hope of good Success, the Enemy, who relies upon the Faith of the Treaty for Suspension of Arms; he may do it without Scruple or Treachery, according to the Principle of our Author. But Mr. Battier seems to have Reason to declare himself against this Opinion in the Dissertation I have cited, § 4. And indeed, as it is with the tacit Consent of the Sovereign, that the Truce has been made, as that was included in the Extent of the Power of him who granted it; no other Minister can break the Agreement, without indirectly injuring the Sovereign’s Authority. Besides, this may make way for Fraud and Distrusts, that might tend to render the Use of Truces, so necessary on many Occasions, useless and impracticable. For there would be Reason to apprehend perpetually the Being surprized during that Time by some other Body of the Enemy’s Army: And even he himself, who has granted the Truce, might underhand Cause other Troops of his Party to come, and attack the Enemy, lulled asleep on the Faith of the Agreement made with him. Let us add to this another Reason from Albericus Gentilis. The General, says he, who commands an Army in Chief, may certainly oblige the Sovereign, by the Treaties which he makes, as to what regards the Conduct of the War intrusted to him: Wherefore then may not one of his Lieutenants oblige the General himself, by the Conventions which he makes within the Extent of his Office? De Jure Belli, Lib. II. Cap. X. p. 289.
[1 ]It was not Tigranes, that was deprived of Syria, but Antiochus, the Son of Antiochus Pius, and Grandson of Antiochus Cyzicenus; as appears from Justin, whom our Author cites in the Margin: Igitur Tygrane a Lucullo victo, Rex Syriae Antiochus, Cyziceni filius, ab eodem Lucullo adpellatur. Sed quod Lucullus dederat, postea ademit Pompeius, Lib. XL. Cap. II. Num. 2, 3. Besides, as Gronovius observes, Pompey had no more Right to take Syria from Antiochus, than Lucullus to give it him. According to the Rules of Right and the Laws, the Act of both the one and the other ought to have been ratified by the Roman Senate and People. See that learned Person’s Note. So that the Example is not proper.
[2. ]And Syphax, her Husband: Et regem [Syphacem] conjugemque ejus —Roman oporteret mitti, ac Senatus Populique Romani de ea judicium atque arbitrium esse.Livy, Lib. XXX. Cap. XIV. Num. 10.
[a ]B. 3. ch. 6. § 15.
[3. ]Lib. III. Cap. LXXXIV.
[4. ]Fidem dante Maharbale—si arma tradidissent abire cum singulis vestiment is passurum, sese dediderunt, &c.Livy, Lib. XXII. Cap. VI. Num. 11.
[5. ]Polyb. ubi supra, (Cap. LXXXVI.) Bajazet made Use of as frivolous an Evasion in a like Affair, against the People of Crottovo in Servia, as Leunclavius relates, Lib. VI.
[6. ]Quae Punicâ religione servata fides ab Hannibale est, atque in vincula omnes conjecit. Ubi supra, Num. 12. seu fin.
[7. ]Ac, si fides Saturnino data est — non eam C. Rabirius, sed C. Maxius dedit: Idemque violavit, si in fide non stetit. Quae fides, Labiene, qui potuit sine Senatus-consulto dari? Orat. pro C. Rabirio, Cap. X.
[8. ]See Sallust, Bell. Catilin. (Cap. XXX. Edit. Wass.) There is in Guicciardin, Hist. B. VI. Chap. IX. Fol. 229. of Jerome Chomedey’s old French Translation, p. 339. of the Italian Original. (Edit. Genev. 1645.) a Chicanery like this of Cicero’s, used by Gonsalvo against the Duke of Valentinois.Grotius.
[1 ]See Appianus Alexandrinus, De Bell. Illyr. p. 761. Edit. H. Steph.