LIII. Though the law of nations may in its literal rigour allow of putting hostages to death, it can never conscientiously be enforced, but where they have committed crimes deserving of capital punishment. Neither can they be made slaves. Indeed the law of nations permits them to leave their property to their heirs, although by the Roman law provision was made for confiscating it to the state.
LIV. If it should be asked whether hostages may lawfully make their escape: it may be answered in the negative, especially if, at first, or afterwards, they have pledged their faith to remain, upon condition of being prisoners at large. But it does not appear that states so much intended to impose a hardship upon their subjects by forbidding their escape, as to give the enemy security for the performance of their engagements.
LV. The obligation of hostages is of an odious nature, as being unfriendly to personal liberty, and arising from the act of another. Therefore a strict interpretation must be given to such engagements, so that hostages delivered on one account cannot be detained on any other, nor for any contract, where hostages are not required. But if in another case there has been any violation of good faith, or any debt contracted, hostages may be detained, not as hostages, but in the capacity of subjects, whom the law of nations makes liable to be seized and detained for the acts of their sovereigns. To guard against which, provision may be made by additional clauses for the restoration of hostages, whenever the engagement for which they were delivered has been fulfilled.
LVI. Whoever has been delivered as a hostage for other prisoners, or for the redemption of other hostages, will naturally be released upon the death of those persons. For by death the right of the pledge is extinguished in the same manner as by the ransom of a prisoner. And therefore, according to Ulpian, as a PERSONAL debt is confined to him, who has contracted it, so one person, being substituted for another, cannot be detained any longer than while the obligation of that other continues.
LVII. The decision, whether hostages can be detained upon the death of the sovereign, by whom they were delivered, must depend upon the nature of the engagements, which he has made. If they are PERSONAL, they continue in force only during his natural life, but if they are what are called REAL or more PERMANENT treaties, they pass with all their consequences to his successors. For ACCESSORY articles cannot authorise any deviation from the GENERAL rule of interpreting the fundamental and principal points of a treaty, but the accessory articles themselves ought rather to be explained in conformity to those general rules.
LVIII. A cursory observation may be made, that hostages are sometimes considered, not as appendages, but as forming the principal part of an engagement, where any one is bound not for himself, but for another, and, in case of non-performance, being obliged to pay damages, his hostages or sureties are answerable in his stead.—There is not only some thing of harshness, but even injustice in the opinion that hostages may be bound for the conduct of another even without their own consent.
LIX. Pledges have some characteristics in common with hostages, and some peculiar to themselves. It is a common characteristic of both to be detained for something else that is due, except where public faith is given, and provision made to the contrary. Pledges may be detained with greater latitude than hostages; which is one of their peculiar characteristics, there being less of odium in the former case than in the latter: THINGS being of a nature more proper for detention than PERSONS.
LX. No time can bar the redemption of a pledge, whenever the engagement for which it was given is fulfilled. For it is never to be presumed that engagements proceed from new causes, when old and known causes can be assigned. If a debtor therefore has forborne to redeem a pledge, we may still suppose that he has not abandoned his original engagement, unless there be clear proof to the contrary: as if, for instance, though desirous of redeeming it, he has been prevented, or suffered a space of time to elapse unnoticed, that would be requisite to imply his consent.