CHAPTER XX.

Of the public Faith by which Wars are terminated; and herein, of Treaties of Peace; of Lot; of Combat by Agreement; of Arbitration; of Surrender; of Hostages; and of Pledges.

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LI. Of Conditional Surrender.

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(ONVENTIONS between enemies depend either on express engagements, or on tacit ones. An express engagement is either public or private. A public engagement is either one made by the supreme powers, or by inferior powers. An engagement made by the superior powers either puts an end to the war, or is of force while the war goes on. In those which end the war, we are to look at the principal matters, and at the accessories. The principal pacts are those which end the war either by their own act, as convention, or by consent having reference thereto, as lot, the event of a combat, the decision of an arbiter: of which the first is merely casual; the other two, temper chance with the powers of the body or the mind, or with the exercise of judgment.

II. To make conventions which terminate the war, is the office of those who make the war; for each person is the manager of his own affairs. Whence it follows, that in a war public on both sides, this is the office of those who have the right to exercise supreme authority. In a monarchical state, it is therefore the office of the monarch, provided he be a monarch who has a right not impeded in such acts.

III. 1 For a king who is not of the age which implies maturity of judgment, (which age is, in some kingdoms, defined by law, in others, is to be estimated by probable conjecture,) or who is of weak intellect, cannot make peace. The same is to be said of a king in captivity, provided he received his sovereignty from the people; for it is not to be supposed that they would bestow the power, to be used by a person who was not free. Hence, in this case, the sovereignty, not indeed as to its whole rights, but as far as exercise and guardianship, will be with the people, or him to whom the people commits it.

2 But as to things which belong to himself, if a king, even in captivity, make any compact, it will be valid, according to the example of private conventions, of which we have spoken. But if the king be an

exile, can he make peace? Yes, if he is under no constraint; otherwise, his condition differs little from that of a captive: for the custody of a captive is often lax. Regulus refused to deliver his opinion in the Senate, saying that so long as he was under an oath to the enemy, he was not a senator.

IV. In an aristocratical or democratical state, the right of making treaties will be with the majority, respectively, of the Council, and of the Assembly of citizens who have a vote, as we have elsewhere said. Therefore conventions so made, bind them also who dissented. So Livy; Dionysius; Appian; Pliny. And those who are bound by the peace, also may share its advantages.

V. 1 Let us now consider what things may be the subjects of convention. The royal authority, or any part of it, cannot be alienated by convention by kings, such as most kings now are, having their authority not as a patrimony, but as a life estate. Indeed before they received the royal authority, at which time the people was superior to them, there might have been a law made to render such acts invalid in all future time, so that they should not produce any obligation at all, even for compensation for non-fulfilment. And it is to be believed that the people intended this; since, if the action was valid to the contractor for compensation, the goods of the subjects might be taken for the debt of the king; and thus, the provision against alienating the royal authority might be defeated.

2 Therefore, that the whole royal authority may pass in a valid manner, it is necessary to have the consent of the whole people; which may be effected by the representatives of different classes, whom they call the Orders or the Estates of the realm. That any part of the empire may be alienated, there is need for a double consent; both of the general body, and of that special part which is under question; since it cannot, without its own good-will, be separated from the body of which it was a part. But the part itself may transfer to itself the sovereign authority, without the consent of the people, in an extreme and otherwise inevitable necessity; because it is to be supposed that that power was excepted from the compact in such a case, when civil society was formed.

3 But in patrimonial kingdoms, there is nothing which prevents the king alienating his kingdom. Still, it may be, that such a king has not power to alienate any part of the empire; namely, if he had received the kingdom as his property, with the onus of not dividing it. As to the valuables which are called the Property of the Crown, they may come into the king's patrimony in two ways; either separably, or inseparably with the kingdom itself. If in the latter mode, they may be transferred, but only with the kingdom; if in the former, they may be transferred separately.

4 As to kings whose kingdom is not patrimonial, they can hardly have the right of alienating the property of the crown; except it appear plainly to be so, from a primeval law or uncontradicted custom

VI. How far the king's successors, and the people, are bound by his promise, we have also stated elsewhere; namely, so far as the power of so obliging was included in the royal authority; which is neither to be infinitely extended, nor too much narrowed; but regulated by fair reasons. It is plainly another matter, if the king be the absolute master of his subjects, and have received a domestic rather than civil authority; as in the case of those who reduce a conquered people to slavery; or if, without having such dominion over their persons, they have it over their goods; as Pharaoh king of Egypt, by purchase; and others, who have received new comers into their private property. For here, another kind of right, added to the regal rights, produces a result which the regal rights of themselves could not produce.

VII. 1 This is also a common question; what may be done for the sake of peace, with the goods of individuals, by kings who have no other right over the property of subjects than the regal right. We have elsewhere said, that the property of subjects is under the eminent dominion of the state; so that the state, or he who acts for it, may use, and even alienate and destroy such property; not only in case of extreme necessity, in which even private persons have a right over the property of others; but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way.

2 But it is to be added, that when this is done, the state is bound to make good the loss to those who lose their property; and to this public purpose, among others, he who has suffered the loss must, if need be, contribute. Nor is the state relieved from this onus, if, for the present, it be unable to discharge it; but at any future time, when the means are there, the obligation which had been suspended revives.

VIII. Nor do I admit, without distinction, what Vasquius says; that the state is not bound to acknowledge the damage which is inflicted by war, because the right of war permits such damage. For that right of war has regard to other peoples, as we have elsewhere explained; and, partly at least, affects enemies in their mutual relations, not citizens in theirs; for since these are socially bound togcther, it is just that they bear in common the losses which happen for the sake of society. It may however be established by the Civil Law, that a thing lost in war shall not give a citizen a right of recovery against the State; in order that each person may the more strenuously defend his own property.

IX. There are some writers who make a broad distinction between things which belong to the citizens by the Law of Nations, and things which belong to them by the Civil Law: so that with regard to the former, they allow a looser right to the king, so that he may take them without cause and without compensation; but not so with regard to the latter. Wrongly. For ownership, from whatever cause it

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arises, has always its effects by Natural Law; in so far that it cannot be taken away, except either from causes which belong to the very nature of ownership, or arise out of the act of the owners.

X. But this consideration, that the property of private parties is not to be given up, except on the ground of public utility, regards the king and his subjects; the other consideration, respecting compensation for loss, regards the state and individuals. For as regards strangers who contract with the king, the act of the king is sufficient; not only on account of the presumption of due authority which the dignity of the person implies; but also from the Law of Nations, which allows the goods of subjects to be bound by the act of the king.

XI. 1 With regard to the interpretation of conventions of peace, we must observe what has been delivered above that; in proportion as any condition is more favourable, it is to be taken more loosely: in proportion as it is the contrary, more restrictedly. If we regard mere Natural Law, the most favourable condition seems to be, that each shall obtain his own: and therefore the interpretation of doubtful expressions is to be drawn to that sense; that he who has taken up arms justly, shall obtain that for which he went to war, and recover his losses and expenses; but not that he shall obtain anything under the plea of penalty; for that is more odious.

2 But since parties will hardly come to peace by one side confessing to being in the wrong, therefore that interpretation is to be taken which puts the parties, as much as possible, on an equality with respect to the justice of the war. And this is done mainly in two ways; either that the possession which has been disturbed by war should be restored, as expressed by the formula in statu quo ante bellum; or that matters remain as they are, which is expressed by uti possidetis.

XII. 1 Of these two rules, the latter is, in a doubtful case, to be preferred, as being the easier, and inducing no change. Hence the rule of Tryphoninus; that in peace, those prisoners only shall have postliminium for whom such a compact was made; which, as we have shewn above, is the true reading. And thus, deserters are not to be given up, except this be agreed upon; for we receive deserters by the laws of war: that is, by the laws of war it is lawful for us to admit and enrol in our numbers him who changes his side. Other things, on such agreement, remain with the person who is in possession.

2 But this possession is taken not according to Civil but to Natural Law; for in war, the fact of possession suffices, and nothing else is attended to. And we speak of lands, as in possession, if they are protected by fortifications; for a temporary occupation, or an encampment, is not here regarded. Demosthenes says that Philip made haste to occupy what places he could, knowing that when peace was made, he would keep what he held. Incorporeal possessions are not held, except by means of the thing to which they adhere; as the servitudes of lands; or by the persons to whom they belong, provided they are