VIII. and IX. As to granting truces, it is a power which belongs not only to commanders in chief, but also to inferior commanders. And they may grant them for themselves, and the forces immediately under their command, to places which they are besieging or blockading: but they do not thereby bind other parts of the army. Generals have no right to cede nations, dominions, or any kind of conquests made in war. They may relinquish any thing of which a complete conquest has not been made: for towns frequently surrender on condition of the inhabitants being spared, and allowed to retain their liberty and property: cases, in which there is no time for consulting the will and pleasure of the sovereign. In the same manner, and upon the same principle this right is allowed to subordinate commanders, if it falls within the nature of their commission.
X. As commanders, in all such engagements, are acting in the name of others, their resolutions must not be interpreted so strictly as to bind their sovereigns to greater obligations than they intended to incur, nor at the same time to prove prejudicial to the commanders themselves for having done their duty.
XI. An absolute surrender implies that the party so capitulating submits to the pleasure and discretion of the conqueror.
XII. In ancient conventions a precaution was usually added, that they would be ratified, if approved of by the Roman people. So that if no ratification ensued, the general was bound no further than to be answerable for any advantage that might have accrued to himself.
XIII. Commanders having promised to surrender a town, may dismiss the garrison.
[CHAPTER XXIV.][81]
On Tacit Faith.
Tacit faith—Example of in desiring to be taken under the protection of a king or nation—Implied in the demand or grant of a conference—Allowable for the party seeking it to promote his own interest thereby provided he uses no treachery—Meaning of mute signs allowed by custom.
I. Both public, private, and mixed, conventions admit of tacit consent, which is allowed by custom. For in whatever manner consent is indicated and accepted it has the power of conveying a right. And, as it has been frequently observed in the course of this treatise, there are other signs of consent besides words and letters: some of them indeed naturally rising out of the action itself.