ing up, even the consecrated vessels of the church, in order to redeem captives. The ornament of the sacraments is the redeeming of captives; and much to the same effect.

XXIV. 1 These considerations prevent me from approving, without distinction, of those laws which forbid the ransom of captives, as we learn that the old Roman laws did. No city holds its captive citizens more cheap than we do, says some one in the Roman Senate. And the city is called, by Livy, little indulgent to its captives, from early time. So Horace calls the ransom of captives a foul condition, and an example leading to evil, loss added to shame. But in fact, the blame which Aristotle casts upon the Lacedæmonian institution is also ascribed to the Roman; that everything has reference to war, as if the safety of the state depended on that alone. But if we consider the interests of humanity, it would often be better that the right which is sought in war should be lost, than that a great number of men, our relations or fellow-countrymen, should be left in a condition of the deepest calamity.

2 Therefore such a law does not appear to be just, except it appear that there is need of such rigour, that more or greater evils, otherwise inevitable, may be averted. For in such a necessity, as the prisoners themselves should, by the law of charity, bear their lot patiently, so may this be enjoined them; and others may be directed not to do anything to the contrary; according to what we have elsewhere said of surrendering a citizen for the public good.

XXV. According to our habits, those taken in war do not become slaves: but I do not doubt that the right of exacting the amount of the ransom may be transferred, by the person who has the possession of the prisoner, to another person: for nature permits even incorporeal things to be alienated.

XXVI. And the same person may owe the amount of ransom to more persons than one, if, when he has been let go by one, and the price is not yet paid, he is captured by another: for these are different debts from different causes.

XXVII. The agreement concerning the amount of ransom, cannot be rescinded on account of the prisoner being discovered to be richer than he was supposed to be; because, by the external Law of Nations, which is the subject of our present enquiry, no one is compelled to give more than he promised in a contract, at a price different from the current price, if there has been no deceit: as may be understood from what we have said about Contracts.

XXVIII. From what we have said, that prisoners with us are not slaves, it follows that there is an end of that acquisition of a right over all that belongs to the person, as well as the person; for that this is a mere accessory to the power over the person, we have elsewhere said. Therefore nothing else becomes the property of the captor, but what he specially takes possession of. And therefore, if the prisoner has anything secreted with him, that is not acquired by the

So Paulus the jurist

captor, because it was never in his possession. gave his opinion against Brutus and Manilius, that he who came into possession of a piece of land, did not acquire possession of a treasure which he did not know to be there; because not knowing of it, he could not be the possessor of it. From which it follows, that property so concealed may be applied to furnish the amount of ransom; the ownership having been retained by the prisoner.

XXIX. 1 This is also a frequent question: whether the ransom agreed upon, and not paid before death, be due from the heir. The answer appears to me to be obvious, if the prisoner die in captivity, that it is not due: for the promise was, on the condition that the prisoner should be liberated, and a dead man is not liberated. On the other hand, if he dies when he is at liberty, it is due; for he had already got the thing for which the price was promised.

2 I undoubtedly confess that the agreement may be made otherwise, so that, from the moment of the contract, the price may be absolutely due, and the prisoner may be retained, not now as a prisoner of war, but as a pledge given by himself: and on the other hand, that it may be covenanted that the payment of the price shall take place, if on a certain appointed day, he who is captive, be alive and free. But such conditions, as being less natural, are not to be presumed, except upon manifest evidence.

XXX. This question also is propounded: whether he ought to return into captivity, who was set free, on the compact that he should cause another to be liberated, who, by dying, prevented that being done. We have elsewhere said that the liberal promise of a third person is fulfilled with sufficient exactness, if nothing be omitted on the part of the promiser; but that in onerous promises, the promiser is obliged to an equivalent. And therefore in the question proposed, the person liberated will not be bound to return himself into captivity; for that was not the agreement, and the favour which is to be shewn to liberty, does not allow us to suppose it tacitly understood; nor ought he to take his liberty, as a gain, without a consideration; but he must give the estimated value of the thing, which itself he cannot give. For this is more agreeable to the simplicity of nature, than the rules which the Roman jurists give, in speaking of an action on a promise made in formal terms; or a suit when a thing is given for a cause, and the cause does not follow.

CHAPTER XXII.

Of the Faith of subordinate Powers in a War.

I.

A

MONG Public Conventions, Ulpian places this class: When Generals make agreements. We have said that, after faith is pledged by the supreme powers, we must consider that which the subordinate powers pledge to one another or to others: whether those subordinate powers are those nearest to the supreme, as Generals properly so called, (with regard to whom we must understand the expression of Livy, We know no General except him who conducts the war;) or those farther removed, of whom Cesar thus speaks, A Brigadier has one duty, a General another; the former is to execute his orders; the latter to act freely with regard to the whole posture of affairs.

II. The promises of Officers of this kind give rise to two kinds of considerations: Whether they bind the supreme authority; and whether they bind themselves. The former question is to be decided by what we have said; that we are bound by his acts whom we have selected as the minister of our will, whether that will be specially expressed, or be collected from the nature of the command committed to him. For he who gives the means of acting, gives, as far as depends on him, the means which are necessary to such action: which, in moral matters, is to be understood in a moral manner. Therefore there are two ways in which subordinate authorities bind the supreme authority by their acts: either by doing that which, on probable grounds is conceived to be included in their office; or beyond that, committed to them by some special assignment of authority, known to those whose interests are dealt with.

III.

There are also other ways in which the supreme authority

is bound, in virtue of an antecedent act of its ministers, but so that that act is not, properly speaking, the cause of the obligation, but the occasion; and that, in two ways; either by consent of the superior, or by the thing itself. Consent appears by sanction of the act; not express only, but tacit also; that is, when the supreme authority knew what was done, and allowed it to be done; and in this case, if no other reason [besides consent] can be probably assigned, we have elsewhere stated what course the matter must take. The superior authority are obliged by the thing itself to this extent; that they are not to be made better off by the loss of other persons; that is, that they are either to fulfil the contract by which they wish to obtain an advantage, or are to give up the advantage; a case of equity which we have elsewhere discussed. And so far, and no further, acts which are performed so as to bring utility to us, are to be said to be valid. On the other hand, they cannot be excused from the charge of injustice, who, while they condemn the compact, retain that which without the compact they would not have: as when the Roman Senate neither could approve the act of Cn. Domitius, nor would rescind it: of which kind of occurrence we have many in history.

IV. 1 We must also repeat what we have said before, that he who placed a person in a command, is bound, even though the person so placed acts against secret orders; at least, within the limits of his public function. This rule of equity was rightly followed by the Roman Prætor, in the action against an Agent; for it is not everything done by the Agent which obliges the Principal, but such things only as are contracted in the matter for which his agency was employed; but he concerning whom public notice was given, that contracts with him would not be held good by the Principal, does not stand in the place of the Principal. But if notice were given, and were not publicly known, the Principal is bound. Also the condition of the agency is to be observed; for if the Principal directed the contract to be made on certain rules, or by the intervention of a certain person, it is just that the contract should be valid on these conditions.

2 From which it follows, that some kings and peoples may be more, and others less bound, by the contracts of their generals, if their laws and rules are sufficiently known. If these are not commonly known, the interpretation must be followed which conjecture dictates; in such a way that that is understood to be conceded without which the functions which belong to a person's duty cannot be conveniently carried out.

3 If a subordinate authority has exceeded the bounds of his commission, he will be bound, if he cannot perform what it has promised, to an estimated equivalent: except some law sufficiently known prevent that also. But if deceit be added, that is, if he pretended to an authority greater than he had, he will then be bound, both for the damage done by his fault, and as a criminal, to the penalty corre

sponding to his guilt. On the first ground, his goods are liable, and if they are insufficient, his labour, or his personal liberty: on the second ground, his person also is liable, or his goods, or both, according to the quantity of the transgression. What we have said of deceit, will hold, even if the person so acting made an attestation that he did not intend himself to bear the obligation; because the debt due for the damage, and the penalty due for the crime, are connected therewith, not by a voluntary, but by a natural tie.

V. And since, in all cases, either the supreme power is bound, or its minister, it is therefore certain that the other party is bound also: nor can it be alleged that the contract is one-sided.

We have considered the relation of subordinates to superiors; let us now see what power they have over inferiors.

VI. I have no doubt, that a General can bind soldiers, and a Magistrate, citizens, within the limits of those acts which are customarily done at their command: in other cases, consent is necessary. On the other side, the compact of a general or magistrate will give advantages to their inferiors absolutely, in things simply useful; for that was sufficiently comprehended in their power: also in those things which have an onus annexed to the utility, within the limits of their customary command, absolutely: and out of those limits, if they accept the compact; which agrees with what we have delivered concerning stipulations for a third party on grounds of Natural Law. These general principles will become plainer by examining specific

cases.

VII. To negociate concerning the causes and consequences of the war, does not belong to the general of the army; for it is not a part of the conduct of the war, to end the war. Even if he be appointed to the command with the greatest powers, those are to be understood as relating to the conduct of the war. The answer of Agesilaus to the Persians was, that, To make peace was a matter for the State. Sallust says, The peace which A. Albinus had made with Jugurtha, without the authority of the Senate, the Senate rescinded. And in Livy: How can that peace be valid which we have made without the authority of the Senate, and the command of the Roman People? So the convention of Caudæ, so that of Numantia, did not bind the Roman People, as we have elsewhere explained. And so far that dictum of Posthumius is true, If the people can be bound to anything, it can be bound to everything; that is, of those things which do not pertain to the conduct of the war for that this is the application of the words, is shewn by what precedes; of surrender; of engagements with regard to giving up or burning a city; of change of the state.

VIII. To grant a Truce, is the business of a general; and not only of the supreme general, but also of subordinate ones; namely, to those whom they besiege or blockade, as far as concerns themselves and their forces. For such truces do not bind other generals