concerning Perseus. But all these expressions mean nothing but mere surrender. Faith, in such cases, means only the probity of the victor to whom the vanquished party commits himself.

4 There is a celebrated history, in Polybius and Livy, of Phaneas, the ambassador of the Etolians; who, in his oration to Manlius the consul, went so far as to say that the Etolians gave themselves up to the faith of the Romans. Then, when the consul asked again, and he had repeated the assertion, the consul asked that certain persons who had been the movers of the war should be given up. When Phaneas had objected, We give ourselves up to your faith, not to slavery, and that what was demanded was not according to Greek usage, the consul replied that he did not care for Greek usage; that by Roman usage he had authority over those who had surrendered deliberately; and ordered forthwith the ambassadors to be thrown into chains. Do you, he said, talk of duty and decorum, when you have given yourselves up to our faith? From which words, we see how much may be done with impunity, and without violating the Laws of Nations, by him to whose faith an adversary has surrendered himself. For the Roman consul did not use this power; but dismissed the ambassadors, and allowed the Etolian council to deliberate afresh on this subject. So the Roman people answered to the Falisci, that it had learnt, that they had committed themselves, not to the power, but to the faith of the Romans; and of the Campanians, we read that they came into faith with the Romans, not by league, but by surrender.

5 But with reference to the duty of him to whom the surrender is made, we may apply what Seneca says: Clemency is not governed by the rules of law, but judges fairly, and can absolve the offender, or tax the contest at what rate it pleases. Nor do I conceive that it makes any difference, whether he who surrenders, professes to give himself up to the wisdom, or moderation, or mercy of the victor. All these are merely soft words: the fact remains, that the victor is the arbiter.

LI. There are also conditional surrenders, which secure the interests of individuals; so that their lives, or liberties, or goods, are excepted; or of the whole body; and some such conventions may even give rise to a mixed authority between the parties; of which we have elsewhere spoken.

LII. Hostages and Pledges are accessories to conventions. Hostages, as we have said, are given either by their own will, or the will of him who has authority over them. For in a supreme civil sovereignty, is comprehended a right over the actions of subjects, as well as their goods. But the state, or its ruler, will be bound to make compensation for the inconvenience to the person who suffers, or his near relations. And if there are several persons, among whom it makes no difference to the state which is the hostage, it appears proper that the matter should be settled by lot. A vassal, except he be a subject also, is not liable to such a right on the part of the scignior: for the reverence and obedience which he owes his lord do not go so far as this.

LIII. The putting to death a hostage is, as we have said, lawful by the external Law of Nations; but not by internal rightness, except there be a corresponding crime on his side. Also hostages do not become slaves: but on the contrary, by the Law of Nations they can hold property and leave it to their heirs; though by the Roman law, it is provided that their goods shall go into the public treasury.

LIV. It is made a question, whether it is lawful for a hostage to make his escape. And it appears plainly that it is not lawful, if, either at first, or afterwards, he have given his word, in order to be in looser custody. Without such a condition, it would seem that the state had not the intention of binding its citizen not to escape, but of giving the enemy the power of keeping him as they chose. And in this way, the act of Clelia may be defended. But although she had not been in fault, the city could not receive and keep the hostage. So Porsenna: If the hostage were not given up, he would hold the treaty broken: and so the Romans gave up the pledge of peace according to the treaty.

LV. However, the obligation of hostages is odious; both because it is against liberty, and because it punishes a person for what another has done. Therefore, in such cases, a strict interpretation is applicable. And thus, persons given up on one account cannot be retained on another: which is to be understood with this condition, If anything else be promised without the stipulation of hostages. But if, in the other cause, faith have been violated, or a debt contracted, the hostage may then be retained; not as a hostage, but by that part of the Law of Nations by which subjects may be detained for the act of their rulers. But it may be provided that this shall not be done, by adding a covenant, that the hostages shall be given up, when that, on account of which they were given, has been fulfilled.

LVI. He who is given as a hostage, only to redeem another who is a prisoner or a hostage, is liberated, on the death of that other. For in him, when he dies, the right of the pledge is extinguished; as Ulpian said of a prisoner who is ransomed [and dies before the ransom is paid]. Wherefore, as in Ulpian's question, the price is not due, so here too, the person of the vicarious hostage is not bound. Thus Demetrius justly demanded of the Roman senate to be set free, as having been given up for Antiochus, and Antiochus being dead. This being so, he said he did not know whom he was hostage for.

LVII. When the king is dead who made the convention, whether the hostage be still bound, depends on the question which we have elsewhere treated, whether the convention is to be held personal or real: for accessory circumstances, such as hostages, cannot be a reason for receding from the rule, in the interpretation of the main articles. The accessories must follow the nature of the main business.

LVIII. This however may be added in passing: that sometimes the hostages are not an accessory part of the obligation, but really a principal part; as when any one, by contract, promises something to be done by another; and, that not being performed is held to the

amount of interest involved in the agreement; then his hostages are bound in his place; which was the doctrine held in the Caudine convention, as we have elsewhere stated. The opinion of those who hold that hostages are bound for one another's acts, even without their own consent, is hard and unjust.

LIX. Pledges have some points in common with hostages, some, peculiar. It is common to the two, that being given for one thing, they may be retained for another, except a stipulation to the contrary have been made. And it is peculiar to Pledges, that the covenant which is made concerning them, is not to be taken so strictly as that concerning hostages: for things are made, to be held as property;

men are not.

LX. We have also said elsewhere, that no period of time can supersede the obligation of restoring the pledge, if that be done to secure which the pledge was deposited. For an act which has an old and known cause is not to be believed to come from a new one. Therefore the forbearance of the debtor [who deposited the pledge] is to be ascribed to the old contract, not to derelict; except wellfounded conjectures point to another interpretation: as if when any one wished to resume the pledge, and was prevented, he had passed it over for so long a time as to give room for a presumption of consent.

CHAPTER XXI.

Of Faith while war continues; of Truce; of Safe Passage; of Ransom.

I. 1

E

how taken.

extinguished by death? What, if it be given, to be at the will of the giver?

Is security due also without the territory?

XXIII. The Favour of the Ransom of Prisoners.

XXIV. May Ransom be forbidden by Law?

XXV. Right over Prisoners may be ceded.

XXVI. The Price may be due from

one to more.

XXVII. May convention be rescinded because the Prisoner was not known to be rich? XXVIII. What if the Prisoner's goods go with him?

XXIX. Does the heir owe the Price of the Ransom ?

XXX. Must he return who was dismissed to free another, he being dead?

VEN during war, the supreme authorities are wont to grant certain kinds of intercourse among the hostile parties; as Truce, Safe Passage, Ransom. Truce is a convention, by which, the war remaining, the parties are for a time to abstain from warlike acts. I say, the war remaining; for as Cicero says, between war and peace, there is no medium; and war is the name of a state or condition which may exist, even when it does not exhibit its operations: according to Aristotle's distinction, of virtues or qualities which may continue to exist, even while they are not exerted. And so his commentators, as Andronicus, speak of a habit which exists without the act; and Eustratius, who exemplifies it by a geometer in whom geometry resides, though he be asleep. And so Horace.

2 And thus, as Gellius says: A truce is not peace; for the war remains, though the fighting ceases. And in another: A truce is a suspension of war. Which I mention to shew that if any convention be made which is to be valid in time of war, it is valid also during a truce, except it plainly appear that, in the convention, it is not war which is looked to, but the operations of war. And on the other hand, if anything is said of peace, that will not hold for the time of truce: although Virgil calls a truce a sequestral peace, which Servius, on the passage, explains as a temporary peace. As also the Scholiast on Thucydides, an occasional peace, or a war in labour. Varro calls it a camp-peace, a peace of a few days; but all these are not definitions, but descriptions, and metaphorical descriptions. So too is that of Varro, when he calls a truce the holiday or vacation of war. He might have called it a slumber of war. So the holiday produced by the forensical ceremonies is called a peace by Papinius. Aristotle calls sleep the chain of the senses; and adopting that image, you might call a truce the chain of war.

3 In the exposition of Varro's words which Donatus follows, Gellius rightly reprehends his having added, "a peace of a few days;" and he shews that truces were granted for hours. And I add further, that truces have been made for years, as twenty, thirty, forty, even a hundred; of which we have examples in Livy, which shew the error of that definition of Proclus the Jurist: A truce is, when for a short and present time, a convention is made, that the parties are not to attack each other.

4 It may however happen, that if it appear that the sole moving reason of any convention was the cessation of warlike acts, that then, what is said of the time of peace shall hold for a time of truce; not from the force of the word, but from the clear inference of intention, of which we have elsewhere spoken.

II. The name Inducice does not come, as Gellius would have it, from inde uti jam; nor as Opilius holds, from endoitu, that is, introgression; but from inde otium, because from a certain time there is a cessation of acts. It appears also, from Gellius and Opilius, that the ancients wrote this word with the letter t, not c; and that though now it is plural only, it formerly had a singular. The old form was indoitia, for otium was then written oitium, from the verb oiti, which later became uti; as from poina (afterwards pona) came punio, and from Poino (afterwards Panus) came Punicus. And as from ostia in the plural, ostia, ostiorum, a door, came the singular ostia, ostic; so from the plural indoitia, indoitiorum, came indoitia, indoitiæ, and thence indutia, of which, as I have said, the plural only remains in use, though the singular formerly was used, as Gellius tells us. Donatus is not far from this etymology, when he says that Inducice were so called because they give in dies otium, cessation for days. Induciæ, or Truce, then, is a cessation of acts in war, not a peace; and therefore the

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