XXII. The privilege of a safe-conduct protects the person, to whom it is given, even beyond the territories of the grantor: because it is given as a protection against the rights of war, which are not confined to his territory.
XXIII. The redemption of prisoners is much favoured, particularly among Christian states, to whom the divine law peculiarly recommends it as a kind of mercy. Lactantius calls the redemption of prisoners a great and splendid office of justice.
[CHAPTER XXII.]
On the Faith on Those Invested with Subordinate Powers in War.
Commanders—Extent of their engagements in binding the sovereign—Exceeding their commission—The opposite party bound by such engagements—Power of commanders in war, or of magistrates with respect to those under their authority—Generals cannot make peace, but may conclude a truce—Extent of their authority in granting protection to persons and property—Such engagements to be strictly interpreted—Interpretation of capitulations accepted by generals—Precautions necessary till the pleasure of the sovereign be known—Promise to surrender a town.
I. Ulpian reckons the agreements, entered into between the generals of opposite armies during the course of a war, among public conventions. So that after explaining the nature of the faith pledged by sovereign powers to each other, it will be proper to make a short inquiry into the nature of engagements made by subordinate authorities; whether those authorities bear a near approach to supreme power, as commanders in chief, or are removed to a greater distance from it. Caesar makes the following distinction between them, observing that the offices of commander and deputy are very different; the latter being obliged to act according to prescribed rules, and the former having unqualified discretion in matters of the highest importance.
II. The engagements of those invested with such subordinate powers are to be considered in a double point of view, whether they are binding upon the sovereign, or only upon themselves. The former of these points has been already settled in a former part of this treatise, where it was shewn that a person is bound by the measures of an agent, whom he has appointed to act in his name, whether his intentions have been expressly named, or are only to be gathered from the nature of the employment. For whoever gives another a commission, gives him along with it every thing in his power that is necessary to the execution of it. So that there are two ways, in which persons acting with subordinate powers may bind their principals by their conduct, and that is, by doing what is probably thought to be contained in their commission, or apart from that, by acting according to special instructions, generally known, at least to those, with whom they treat.
III. There are other modes too, in which a sovereign may be bound by the previous act of his minister; but not in such a manner as to suppose the obligation owes its EXISTENCE to that action, which only gives occasion to its fulfilment. And there are two ways, in which this may happen, either by the consent of the sovereign, or by the very nature of the thing itself. His consent appears by his ratification of the act, either expressed or implied, and that is, where a sovereign has known and suffered a thing to be done, which can be accounted for upon no other motive but that of approval and consent.
The very nature and obligation of all contracts imply that one party is not to gain advantage by the loss of another. Or if advantage is expected from a contract, the contract must be fulfilled or the advantage abandoned. And in this sense, and no other, the proverbial expression, that whatever is beneficial is valid, is to be understood.