This interpretation of an oath, though conformable to the Roman laws, is by no means consistent with the simplicity of language considered by itself. For the justice of the case remains the same, in whatever way an arbiter is chosen, whether it be to reconcile contending parties, a character, in which we find the Athenians acting between the Rhodians and Demetrius, or to make an absolute decree.
Although the civil law may decide upon the conduct of such arbiters to whom a compromise is referred, so as to allow of an appeal from their decrees, or of complaints against their injustice, this can never take place between kings and nations. For here there is no superior power, that can either rivet or relax the bonds of an engagement. The decree therefore of such arbiters must be final and without appeal.
XLVII. With respect to the office of an arbiter or mediator, it is proper to inquire, whether the person has been appointed in the character of a judge, or with powers more extensive and discretionary than legal powers. Aristotle says that "an equitable and moderate man will have recourse to arbitration rather than to strict law, ADDING AS A REASON, because an arbitrator may consider the equity of the case, whereas a judge is bound by the letter of the law. Therefore arbitration was introduced to give equity its due weight."
Equity does not signify in this place, as it does elsewhere, that part of justice, which gives a strict interpretation of the general expressions of the law, according to the intention of the law-giver. For that is left to the judge. But it includes every thing, which it is more proper to do than to omit, even beyond what is required by the express rules of justice.—Such kind of arbitration being common among individuals and subjects of the same empire, it is recommended by St. Paul as a practice peculiarly proper for Christians. Yet in doubtful cases it ought not to be presumed that such extensive powers are granted. For where there is any obscurity it abridges this latitude of decision: and especially in contested matters, between independent sovereigns, who, having no common judge, are supposed to bind the mediators, and arbitrators, whom they chuse, by the strictest rules of law.
XLVIII. It is to be observed that arbitrators chosen by nations or sovereign princes may decide upon the matter in dispute, but not confer a possession, which is a matter that can only be decided by established rules of civil law, for by the law of nations the right of possession follows the right of property. Therefore while a cause is pending, no innovation ought to be made, both to prevent partiality and prejudice, and because, after possession has been given, recovery is difficult. Livy in his account of some disputed points between the people of Carthage and Masinissa says, "the Ambassadors did not change the right of possession."
XLIX. There is another kind of arbitration, which takes place, when any one makes an absolute surrender of himself and all his rights to an enemy or foreign power. But still a distinction ought to be made, even here, between the bounds of right and wrong, limiting the submission of the vanquished, on the one hand, and the authority of the conqueror, on the other, to a certain degree.
For there are particular duties, which ought to be observed in the exercise of EVERY right. Taking the right of the conqueror in its literal meaning and full extent, it is true that he is entitled to impose ANY terms upon the conquered, who is now placed, by the external laws of war, in a situation to be deprived of every thing, even personal liberty or life, much more then, of all his property, either of a public or private kind.
L. The first object of a conqueror should be to avoid committing any act of injustice, or using any rigour, except the demerits and atrocity of the enemy require it; to take nothing but by way of lawful punishment. Observing these bounds, as far as security allows, it is always laudable to incline to moderation and clemency. Sometimes even circumstances may require such a line of conduct, and the best conclusion of any war is that, which reconciles all contending claims by a fair adjustment, and a general amnesty. The moderation and clemency to which the vanquished appeal, are by no means an abolition but only a mitigation of the conqueror's absolute right.
LI. There are conditional surrenders, reserving to the individuals, certain personal privileges, and remains of their property, and to the state, certain parts of its constitution.
LII. Hostages and pledges may be considered as an appendage to treaties. And some of those hostages are a voluntary surrender, and others given by authority of the state as a security. For the sovereign has the same power over the persons and actions of his subjects, as over their property. But the state or its ruler will be bound to recompense individuals or their relatives for any inconveniences they may sustain.