[CHAPTER XXI.]
On Faith During the Continuance of War, on Truces, Safe-Conducts, and the Redemption of Prisoners.
Truces of an intermediate denomination between peace and war—Origin of the word—New declaration of war not necessary after a truce—Time from whence a truce and all its correspondent obligations and privileges commence—A retreat may be made, or fortifications repaired during a truce—Distinction respecting the occupying of places—The case of a person prevented from making his retreat, and taken in the enemy's territories at the expiration of a truce, considered—Express terms and consequences of a truce—Breach of a truce by one party justifies a renewal of war by the other—Penalty annexed—Truce broken by the acts of individuals—Rights belonging to safe-conducts without a truce—Persons in a military capacity how far allowed the benefit of a safe-conduct—Privileges of goods arising from thence—Attendants of the person protected by a safe-conduct—Safe-conduct does not expire upon the death of the grantor—Safe-conduct given to continue during the pleasure of the grantor—Protection thereof extending beyond his own territory—Redemption of prisoners favoured, and not to be prohibited by law.
I. and II. In the midst of war there are certain points generally conceded by the belligerent powers to each other, which Tacitus and Virgil call the intercourse of war, and which comprehend truces, safe-conducts, and the redemption of prisoners.—Truces are conventions, by which, even during the continuance of war, hostilities on each side cease for a time. During the continuance of war; for, as Cicero says, in his eighth Philippic, between peace and war there is no medium. By war is meant a state of affairs, which may exist even while its operations are not continued. Therefore, as Gellius has said, a peace and a truce are not the same, for the war still continues, though fighting may cease. So that any agreement, deemed valid in the time of war, will be valid also during a truce, unless it evidently appears that it is not the state of affairs, which is considered, but the commission of particular acts of hostility. On the other hand, any thing, agreed to, to be done, when peace shall be made, cannot take place in consequence of a truce. There is no uniform and invariable period fixed for the continuance of a truce, it may be made for any time, even for twenty, or thirty years, of which there are many instances in ancient history. A truce, though a repose from war, does not amount to a peace, therefore historians are correct in saying that a peace has often been refused, when a truce has been granted.
III. After a truce a new declaration of war is not necessary.
For upon the removal of a temporary impediment, the state of warfare revives in full force, which has only been lulled asleep, but not extinguished. Yet we read in Livy, that it was the opinion of the heralds' college, that after the expiration of a truce war ought to be declared. But the ancient Romans only meant to shew by those superfluous precautions, how much they loved peace, and upon what just grounds they were dragged into war.
IV. The time, generally assigned for the continuance of a truce, is either some uninterrupted period, of a HUNDRED DAYS, for instance, or a space limited by some artificial boundary of time, as the Calends of March. In the former case, the calculation is to be made according to the natural motion of time: whereas all civil computations depend upon the laws and customs of each country. In the other case it is generally made a matter of doubt, whether in naming any particular day, month or year, for the expiration of a truce, that particular day, month, or year, are comprehended in the term of the truce, or excluded from it.
In natural things there are two kinds of boundaries, one of which forms an inseparable part of the things themselves, as the skin does of the body, and the other only adjoins them, as a river adjoins the land, which it bounds or washes. In either of these ways voluntary boundaries may be appointed. But it seems more natural for a boundary to be taken as a part of the thing itself. Aristotle defines the extremity of anything to be its boundary: a meaning to which general custom conforms:—thus if any one has said that a thing is to be done before the day of his death, the day on which he actually dies is to be taken into the account as forming part of the term. Spurinna had apprised Caesar of his danger, which could not extend beyond the Ides of March. Being accosted, respecting the matter, on the very day, he said, the Ides of March are come, but not passed. Such an interpretation is the more proper where the prolongation of time is of a favourable nature, as it is in truces, which are calculated to suspend the effusion of human blood.
The day, FROM which any measure of time is said to begin, cannot be taken into the account; because the word, FROM, used on that occasion, implies separation and not conjunction.
V. It is to be observed that truces, and engagements of that kind immediately bind the contracting parties themselves from the very moment they are concluded. But the subjects on either side are only bound from the time that those engagements have received the form of a law, for which public notice and the regular promulgation are necessary. Upon this being done they immediately derive their authority to bind the subjects. But if notice thereof has only been given in one place, the observance of them cannot be enforced through the whole dominions of the respective sovereigns at one moment, but sufficient time must be allowed for the due promulgation of them to be made in every part. Therefore if in the meantime the subjects on either side have committed an infraction of the truce, they shall be exempt from punishment, but the contracting parties themselves shall be obliged to repair the damages.
VI. The very definition of a truce implies what actions are lawful, and what are unlawful during the continuance of it. All acts of hostility are unlawful either against the persons or goods of an enemy. For every act of violence during a truce is contrary to the law of nations. Even things belonging to an enemy, which by any accident have fallen into our hands, although they had been ours before, must be restored. Because they had become theirs by that external right according to which such things are adjudged. And this is what Paulus the lawyer says, that during the time of a truce the law of postliminium cannot exist, because to constitute the law of postliminium there must be the previous right of making captures in war, which ceases upon the making of a truce.