Front Page Titles (by Subject) CHAPTER XXIII: Of Faith given by private Men in War. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XXIII: Of Faith given by private Men 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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Of Faith given by private Men in War.
I.That Faith given by private Men in War is not binding, confuted.I. That Saying of Cicero1 is well known, Whatsoever any private Person, urged by Necessity, shall promise to the Enemy, even in that very Thing he must keep his Faith. Private here implies, either Soldier or any other Person that does not bear Arms, for Faith is to be kept by all. It is surprizing then, that any Lawyers should maintain, That Faith in publick Agreements made with the Enemy is to be kept, but not in private; for if private Persons have particular Rights which they can engage, and an Enemy be capable of acquiring some Rights, what should hinder such an Obligation? Besides, unless this be allowed, there would be an Occasion given for Massacres, and a Bar to Liberty; for if private Faith were not held obligatory, the Lives of Prisoners oftentimes could not be saved, nor their Liberty procured.
II.Faith given to Pirates and Robbers is binding, and how far.II. Further, not only to those who are Enemies by the Law of Nations, but even1 to Robbers and Pirates, we are to keep our private Faith, as we have saida above concerning publick Conventions made with such People; with this Difference, that if an unjust Fear, occasioned by the other, shall force a Promise from us, the Promiserb may demand Restitution, and upon Refusal may take it upon himself; which could not be done, if the Fear proceeded from a publick War according to the Law of Nations. But if that Promise were confirmed by an Oath, the Promiser must indispensibly perform his Word, unless he would be perjured. But if suchc a Perjury be committed against a publick Enemy, it is commonly pu-<731>nished by Men; but if against Thieves, or Pirates, it remains unpunished in Detestation of those, with whom we had to do.
III.A Minor here not excepted.III. In this private Faith we are not to except Minors, if they are capable of understanding what they promise.1 For the Privileges allowed to Minors arise from the civil Law; whereas we now speak of the Law of Nations.
IV.Whether an Error does excuse it.IV. And we have already saida of Promises made by Mistake, that we have a Power to retract them, when that which through Error [[was believed, was according to the Intention of the Promiser,† the Condition of the Promise.]]
V.An Objection made from publick Profit answered.V. 1. But how far the Power of private Men may extend in making any Contract, is a more difficult Question. It is certain, that no private Person can alienate what is publick; for if this be not allowed to Generals, as I have proveda a little above, much less ought it to be allowed to private Persons. But yet it is to be disputed, whether the Covenants made with their Enemies of their own private Concerns, whether Actions or Things, may stand; because we can not grant those to the Enemy, without some Damage to our own Party. Whence it may seem, that all such Covenants are unlawful, whether they be made by Subjects, on the Account of the eminent Right of their State over them, or by listed Soldiers, in regard to their military Oath.
2. But we must observe, that such Agreements, which prevent a greater or more certain Mischief, are to be esteemed1 rather beneficial than hurtful, even to the Publick; because a lesser Evil has comparatively the Appearance of Good: Of Evils the less is to be chosen, as one says in 2Appian. Yet neither can that bare Faith, whereby a Man does not absolutely renounce all Power over himself, and what he has, nor can the publick Benefit, without the Authority of a Law, have that Power, as to make an Engagement void and of no Effect, tho’ we should grant that what was promised was against the Duty of the Promiser.
3. The Law indeed can take away this Power from Subjects, whether perpetual or temporary, but yet it does not always do so, for it spares Citizens. Neither can it always do it, for human Laws (as I havea [[sic:b said already) have no Force to oblige, but when they are proportioned to human Infirmity, and not when they impose any Thing too burthensome, which is entirely repugnant to Reason and Nature. Therefore those Laws and particular Orders, which manifestly enjoin such Things, are not to be accounted Laws. And general Laws are to be taken in a favourable Sense, so as to exclude Cases of extreme Necessity.]]
4. But if that Act, which was prohibited by any Law, or particular Order, and declared void, might justly be so prohibited, then that Act of the private Person shall be made void, and he may also be punished, because he promised what was not in his Power, especially if being bound by Oath he did it.
VI.These applied to our Faith given to return into Prison.VI. The Promise of a Captive to return unto Prison is justly tolerated,1 because it does not render his Condition worse than it was. Therefore that Action of M. Regulus was not only glorious (as some account it) but what was his Duty.2Regulus, says Cicero, Ought not by his Perjury to have violated the Conditions and Covenants of War, notwithstanding what Horace says,
For when he promised to return he knew what they might do. So of the ten<732> Captives, as Gellius relates it from old Writers, Eight declared they had no Right of Postliminy, because4they were bound by Oath.
VII.Not to return to such a Place, or bear Arms against such a Party.VII. 1. Some Prisoners are released upon their Promise, not to return to such a Place, or not to bear Arms against the Releaser. We have an Example of the former in Thucydides, where those1 of Ithome promised the Lacedemonians to depart out of Peloponnesus, and never to return again: The latter is now common. There is an antient Example in Polybius,2 where the Numidians were dismissed by Amilcar, upon Condition, That none of them should bear Arms against the Carthaginians. Procopiusa has the like Condition in his Gotthicks.
2. Some maintain this Agreement to be void, because it is contrary to the Duty which we owe to our Country: [[3 But not every Thing that is against our Duty, is immediately void, as I saidb before. Besides, it is not against our Duty, to procure our Liberty by promising to forbear a Thing, which it is in the Enemies Power to hinder. For whilst we are not released, we are as useless to our Country, as if we were really dead.]]
VIII.Not to make an Escape.VIII. Some also promise not to make their Escape; this also binds them, tho’ they were in Fetters when they made it; tho’ some are of another Opinion. For by this very Promise sometimes our Lives are saved, or we have more Liberty allowed. But if after this Promise, a Person be laid in Irons, he is therefore discharged of that Promise, if he made it upon that Condition, that he should not be bound.
IX.A Captive taken by one, cannot yield himself to another.IX. It is a foolish Query some make, whether a Person taken Prisoner by one, may yield himself to another. For it is very plain, that no Man can by Contract take away that Right, which another has acquired. For by the very Right of War, or partly by the Right of War, and partly by the Grant of him that makes the War, a Prisoner taken in War belongs to the Captor, as we have saida before.
X.Whether private Men may be compelled by their Sovereign, to perform what they have promised.X. There is a remarkable Question concerning the Effects of such Agreements, namely, whether private Men upon their neglecting to perform what they have promised, may be compelled to it by their Sovereign. And that they may, is the best grounded Opinion, but only in a solemn War, and that by the Right of Nations, which binds those that make War, to do what is right and just to each other, even concerning the Facts of1 private Men; as if an Embassador sent from the Enemy should be insulted by a private Person. Thus A. Gellius quotes out of Cornelius Nepos,2That many in the Senate agreed, that those of the ten Prisoners, who being obliged by Oath to return, refused, should by a strong Guard be delivered up to Hannibal.
XI.What Interpretation to be allowed in such Covenants.XI. We must observe those Rules which we have several Times mentioned,a concerning the Interpretation of Words in such Agreements, that is, we ought not to recede from the proper Signification of the Words, unless to avoid an Absurdity, or when there is any other Conjecture, sufficiently certain, of the Intention of the Promiser; so that where the Words are dubious, we are to incline rather to that Sense that is against him who gives the Conditions.
XII.How we must take these Words, Life, Apparel, the coming of Aids.XII. He that agrees for his Life, has not therefore a Right to his Liberty; under the Name of Apparel, Arms are not comprehended, for they are distinct Things.<733> Aids are said then to come when they are in fight, tho’ they do nothing; for the bare Presence has its Effect.
XIII.Who may be said to return to the Enemy.XIII. But he cannot be said to return to the Enemy, who returning privately, departs again immediately; for our Promise to return is to be so understood, that we shall be again in the Power of our Enemy; to take Advantage of an Explication quite contrary, is according to Cicero1 a notorious Cheat, a foolish Cunning, which adds Perjury to Chicanry.2Gellius calls it a fraudulent Trick, branded by the Censors with Infamy, and says the Practicers of it were rendered odious and execrable.
XIV.Succours, when said to be sufficient.XIV.1 In Agreements made not to surrender, if just Succours should come, we must by them understand, such as are sufficient to free us from the Danger we were in.
XV.The manner of Execution makes no Condition.XV. This also is to be observed, if any Thing be agreed on concerning the Manner of Execution, that alone does not render the Agreement conditional: As if it be stipulated that we should pay in a certain Place, and that Place happen afterwards to change its Master.
XVI.Of Hostages to perform such Covenants.XVI. We must judge of Hostages asa above said; for the most Part they are but a bare Accessary of the principal Engagement; but yet it may be so covenanted, that the Obligation may be alternatively understood, that is, that such a Thing shall be done, or the Hostages may be detained. But in a dubious Case, we must incline to that which is most natural, that is, that they shall be reputed as an Accessary only of the Agreement.
[1 ]Atque etiam, si quid singuli, temporibus adducti, hosti promiserint, est in eo ipso fides conservanda. De Offic. Lib. I. Cap. XIII.
[1 ]But see what we have said upon B. II. Chap. XI. § 7.
[a ]B. 3. ch. 19. § 2.
[b ]B. 2. ch. 2 § 7.
[c ]B. 3. ch. 19. § 5.
[1 ]See above, § 5. of the Chapter referred to in the preceding Note.
[a ]B. 2. ch. 11. § 6.
[† ][[This is a mistranslation. The Latin reads in mente agent is, that is, “according to the belief of the person to whom the promise was made....”]]
[a ]B. 3. ch. 22. § 7.
[1 ]As for Instance, when we promise to pay certain Contributions to prevent Pillage, burning of Places, &c.
[2. ]It is a Carthaginian who says this to induce his Countrymen to submit to the Romans, as they were not in a Condition to resist them. De Bell. Punic. p. 55. Edit. H. Steph.
[a ][[sic:b B. 1. ch. 4. § 7. n. 2, 3. and B. 2. ch. 14. § 12. n. 2.]]
[1 ]Without which he would not be suffered to go Home: And it is undoubtedly better for him to have that Permission for a Time, than to continue always a Prisoner.
[2. ]Regulus vero non debuit conditiones pactionesque bellicas & hostiles perturbare perjurio, De Offic. Lib. III. Cap. XXIX.
[3. ]Lib. III. Od. V. Ver. 49, 50.
[4. ]Tum octo ex iis postliminium justum non esse sibi responderunt, quoniam dejurio vincti forent. Noct. Attic. Lib. VII. (Cap. XVIII.) Dejurio vincti, that is to say, capitis minores, as Horace expresses himself, (ubi supra) speaking of Regulus.Grotius.
[1 ]Or rather the Helotae, and some others who had taken Refuge at Ithome, Lib. I. Cap. CIII.
[2. ]The Historian does not speak of a Promise expressly given by the Prisoners not to bear Arms: He only says, that Hamilcar in releasing them, threatned to punish them severely and without Mercy, if they bore Arms against the Carthaginians, Lib. I. Cap. LXXVIII.
[a ]L. 2. c. 14. and l. 3. c. 36.
[3. ]For Instance, Albericus Gentilis, De Jure Belli, Lib. II. Cap. XI. Compare Pufendorf with this Place, Law of Nature and Nations, B. VIII. Chap. II. § 2.
[b ]B. 2. ch. 5. § 10. n. 3.
[a ]B. 3. ch. 6. § 23, &c.
[1 ]It would be to no Purpose, that they stood engaged by Promise, if there were Nobody, who could compel them to perform it. This Albericus Gentilis says in the Chapter cited in the foregoing Note towards the End. Let us add, that this Kind of Promises either have been, or ought to be tacitly approved by the Sovereign: So that he ought to see them made good to the utmost of his Power.
[2. ]Cornelius autem Nepos, &c. Noct. Attic. Lib. VII. Cap. XVIII. Before this Time the same Roman Senate had compelled some Prisoners to return to Pyrrhus, who had dismissed them upon that Condition. Appian, Excerpt. Legat. Num. 6. [p. 348. Eclog. Fulv. Ursin.] Grotius.
[a ]B. 2. ch. 16. § 2. and B. 3. ch. 20. § 26.
[1 ]Reditu enim in castra, &c. De Offic. Lib. III. Cap. XXXII.
[2. ]Haec eorum fraudulenta, &c. Noct. Attic. VII. 18.
[1 ]There is in Procopius four Examples of this Sort of Convention. Gotthic. Lib. III. (Cap. VII. XII. XXX. XXXVII.) And one, in Agathias, concerning the City of Lucca, Lib. I. (Cap. VII.) Another in Bizaro, concerning a Castle in the Island of Corsica, Hist. Genuens. Lib. X. See others of the same Kind, B. XVIII. and in the War against the Moors,Cromer has also one, Lib. XI. Grotius.
[a ]B. 3. ch. 20. § 28.