Front Page Titles (by Subject) CHAPTER XXIV: Of Faith tacitly given. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XXIV: Of Faith tacitly given. - 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 tacitly given.
I.How Faith may be given by Silence.I. That some Things1 [[are† agreed only by Silence, was not ill observed by Javolenus, which takes Place, in publick, private, and2 mixt Agreements. The Reason is this, because it is the Consent, howsoever signified and accepted, that has the Power of transferring Right. But this Consent may be declared otherwise than by Words and Letters, as we have more than once sheweda already. And some Signs are included in the Nature of certain Acts.]]
II.An Example in one desiring to be received into Protection by any Prince or People.II. As for Example. He that coming from an Enemy, or a strange Country, commits himself to the Faith of another King, or People; does without doubt tacitly oblige himself to do nothing against that State, whose Protection he desires;<734> wherefore we are not to join with them1 that justify the Act of2Zopyrus; for his Loyalty to his King could not justify his Treachery to those unto whom he had fled. The same may be said of Sextus3 the Son of Tarquin, who retired to Gabii. Virgil upon Sinon, says,
III.He that desires or admits a Parley.III. So he that demands, or admits of a Parley, silently promises,1 that during the Parley both Parties shall be secure. Livy2 calls it a Breach of the Law of Nations, to hurt an Enemy under the Pretence of an Interview. He terms it,3An Interview perfidiously violated. Val. Maximus4 passes this Censure on Cn. Domitius, who had invited Bituitus King of Auvergne to a Conference, and had entertained him as his Guest, and then treacherously bound him, His insatiable Ambition of Glory made him be perfidious. Wherefore I admire, why he that wrote the 8th Book of Caesar’s Gallick Wars, whether Hirtius, or Oppius, relating the like Act of T. Labienus, adds these Words,5He supposed, that Comius’s Infidelity might be prevented without any Imputation of Treachery to himself. Unless this be rather the Judgment of Labienus, than of the Writer.
IV.It is lawful for either Party to promote his own Interest, so that he does not hurt the other.IV. But we must not extend this tacit Consent beyond what I have said; for if those with whom we have an Interview receive no Hurt, it is no Breach of Faith to make use of that Conference to divert the Enemy from his military Projects, and in the mean while to advance our own Affairs. It is one of the innocent Artifices of War. Wherefore they who blamed the deluding of King Perseus,1 with the Hopes of Peace, had not so much regard to Justice and Fidelity, as to a generous Mind, and martial Glory, as may be sufficiently gathered from what has beena already said of warlike Stratagems. Of this Kind was that Policy, by which2Asdrubal saved his Army out of the Ausetan Defiles; and by which Scipio Africanus the elder discovered3 the Situation of Syphax’s Camp, both recorded by Livy. Whose Example L. Sylla followed in the Social War at Esernia, as Frontinus4 tells us.
V.Of some dumb Signs, to which Use has given a Signification.V. There are also some dumb Signs,1 significant through Custom; as of old<735> Hair-laces, and Branches of Olives; and among the Macedonians,2 the Erection of Pikes; among the Romans,3 their covering their Heads with their Shields, were Signs of a submissive Surrender, and consequently obliged to the laying down of Arms. But whether he that signifies his accepting of a Surrender, be obliged, and how far, may be easily learnt from what has been saida already.4 Among us the hanging out a white Flag is a tacit Sign of demanding a Parley, and shall be as obligatory, as if expressed by Words.
VI.Of a silent Approbation of a Treaty.VI. We have alreadya declared how far an Agreement made by a General without the Order of the State, may be believed to be tacitly approved by the Prince or People; as when the Act is fully known, and thereupon some Thing done, or not done, of which no other Reason can be given, but their Consent to their Agreement.
VII.When a Punishment is tacitly remitted.VII.1 A Punishment cannot be supposed to be remitted from its being for a Time neglected; but some positive Act must necessarily intervene, which may either by itself argue a good Will, as a Treaty of Friendship; or at least so great an Opinion of the Virtue of the Person to be punished, that his former Actions may merit a Pardon, whether this Opinion be expressed by Words, or by such Actions as are usually taken to signify as much.
[1 ]Videtur autem in hac specie id silentio convenisse, ne quid praestaretur, si ampliore pecunia fundus esset locatus. Digest, Lib. XIX. Tit. II. Locati conducti, Leg. LI. princip. See Mr. Noodt’s Treatise, De Pactis, Cap. II.
[† ][[The word “are” is missing in the original, but in some copies has been written in.]]
[2. ]Our Author understands by mixt Conventions what he calls Sponsio, that is to say Conventions made by publick Persons and upon publick Affairs; but without any express or tacit Order of the Sovereign: For in that Respect they have something of private Agreements in them, those, who make them, having at the same Time they are made, no more Power than mere private Persons.
[a ]B. 2. ch. 4. § 4, 5. and B. 3. ch. 1. § 8.
[1 ]Albericus Gentilis, (De Jure Bell. Lib. II. Cap. IX. init.) ascribes this to Valerius Maximus, from whom he cites some Words, to which our Author seems to allude in this Place after him. But that Historian says nothing at all of Zopyrus; he speaks of Stratagems in general: Illa vero pars calliditatis egregia, & ab omni reprehensione procul remota, cujus opera, quia adpellatione nostra vix aptè exprimi possunt, Graeca pronunciationeStrategematadicuntur. Lib. VII. Cap. IV. princ. It is true, he puts in the Number of these innocent Stratagems a like Action of Sextus Tarquinius. For the rest, see Pufendorf, on this Case, Law of Nature and Nations, B. VIII. Chap. XI. § 5.
[2. ]See it related by Herodotus, Lib. III. Cap. CLIV. & seqq.Justin, Lib. I. Cap. ult. &c.
[3. ]This is in Livy, Lib. I. Cap. LIII. and LIV.
[4. ]Aeneid. Lib. I. Ver. I. 65, 66.
[1 ]It is therefore with Reason, that Agathias blames Ragnaris, General of the Huns, for having treacherously attempted to kill Narses, as the latter returned from a Conference demanded by the former. Lib. II. (Cap. VII.) Grotius.
[2. ]Deinde, quod ipsi Consuli, parum cauto adversus colloquii fraudem, insidiabantur—& successisset fraudi, ni pro jure Gentium, cujus violandi consilium initum erat, stetisset fortuna, Lib. XXXVIII. Cap. XXV. Num. 7, 8.
[3. ]Major multo pars perfide, [it must be read so instead of perfidem] violati colloquii poenas morte luerunt. Ubi supr. (in fin. Cap.) Grotius.
[4. ]Cn. autem Domitium, &c. Lib. IX. Cap. VI. Num. 3.
[5. ]Quum Comium comperisset, &c. Cap. XXIII. Mr. Cocceius, during his Life, celebrated Professor of Law at Frankfort upon the Oder, criticises our Author (in a Dissertation De Officio & Jure Mediatorum Pacis, § 24.) as if he doubted, whether there was any Perfidy in this Action of Labienus. I confess, for my Part, I cannot see the least Foundation for that Censure, and do not believe, that any Body, who will read the Passage with never so little Attention, can find any. It was the Fate of our Author to be ill understood by those who take the most Liberty in reproving him.
[1 ]Decepto per inducias & spem pacis Rege, &c.Livy, Lib. XLII. Cap. XLVII. Num. 1.
[a ]B. 3. ch. 1. § 6, &c.
[2. ]He demanded a Conference for the next Day, but decamped without Noise at the beginning of the Night. See Livy, Lib. XXVI. Cap. XVII.
[3. ]Scipio sent Soldiers disguised like Slaves with his Officers, who during the Time the latter conferred with Syphax, dispersed themselves throughout the Camp, and examined every Thing. See the same Historian, Lib. XXX. Cap. IV.
[4. ]Strategem. Lib. I. Cap. V. (Num. 17.) and by Julius Caesar, during his Dictatorship, when he made War against the Tencteri and Usipetes.Appian. Excerpt. Legat. Num. 16. Grotius.
[1 ]Amongst the Persians [or rather amongst the Assyrians] the Hands joined together behind the Back was a Sign of Submission, as Ammianus Marcellinus relates, Lib. XVIII. (Cap. VIII.) upon which See Lendenbrog’s Notes, (p. 222. Edit. Vales. Gron.) Amongst the Romans they had also this Sign, to put the Shield under the Arm-pit, and throw down the Standards, as appears in the same Historian, Lib. XXVI. Cap. IX. p. 512. (upon which the Reader may consult the Note of Mr. Valois) the Standards were also bowed down. Latinus Pacatus mentions such a Sign in his Panegyrick, (Cap. XXXVI. Edit. Cellar.) The antient Germans, and others in Imitation of them, presented Grass to the Conqueror. See Pliny, Hist. Natur. Lib. XXII. Cap. IV. Servius observes, that those who surrender themselves, lay down their Arms, to appear in the Posture of Suppliants: [Manus Inermes]—Aut supplices—qui enim victi se dedunt,inermesSupplicant. In Aeneid. Lib. I. (Ver. 478.) Grotius.
[2. ]This Livy confirms: Quia erigentes Hastas Macedonas conspexerat — ut accepit hunc morem esse Macedonum tradentium sese, &c. Lib. XXXIII. Cap. X. Num. 3, 4. The learned Gronovius refers to this Passage.
[3. ]Appianus Alexandrinus, to whom our Author refers here in a little Note, and Valois has cited upon Ammianus Marcellinus, relates this, speaking of the Troops of Afranius, De Bell. Civil. Lib. II. p. 454. Edit. H. Steph.
[a ]B. 3. ch. 4. § 12. and ch. 2. § 15.
[4. ]The People of the North kindle a Fire to signify that Demand, as appears from the History of Johannes Magnus, and other Authors. Pliny observes, that in his Time, it was customary to present a Laurel, to signify a Desire that Hostilities might be discontinued: Ipsa [Laurus] pacifera, ut quam praetendi, etiam inter armatos hostes, quietis sit indicium. Hist. Natur. Lib. XV. Cap. XXX. Grotius.
[a ]B. 2. ch. 15 § 17. and B. 3. ch. 22. § 3.
[1 ]Polybius handles this Question, whether when we pardon the Person who actually commits the Crime, we are not supposed by that alone to pardon him also by whose Order it was committed. Excerpt. Legat. Num. 122. For my Part, I think not. For every Man is answerable for his own Faults. Grotius.