Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter XIX: On Good Faith Between Enemies
Good1 faith due to enemies of every descriptionDue even to pirates, and others of the same kind, in all treaties with themA promise given to them, binding, when not extorted by fearOaths to be inviolably observedThe law of nations does not allow fear to be alleged as an exception to the above rulesGood faith to be observed even to a treacherous enemyThis obligation ceases, where one of the parties violates his engagementsOr refuses a just compensationEven where the obligation arose from a different contractFrom loss occasionedOr from a penaltyApplication of these principles to war.
I. IT was before said that the number and extent of actions, lawful in war, may be considered either upon their own intrinsic merits, or as rising out of some antecedent engagement. The former point having before been fully explained, this is the proper place for discussing the latter, which comprehends the good faith of enemies towards each other.
Cicero, in his fifth book on the bounds of good and evil, has well observed that every one must approve and commend a disposition to adhere faithfully to our engagements not only from disinterested motives, but in some cases even in opposition to our own interest. And Augustine says that it is right to maintain the pledge of faith given to an enemy, for under the character of enemies men do not lose their right to the fulfilment of a promise, a right which every one possessed of reason is capable of. It is the power of reason and speech from which the obligation of promises springs. Nor is it to be supposed that, because it is lawful to deceive an enemy on some occasions, the same rule will authorise a violation of faith in engagements. For the obligation to speak the truth arises from causes antecedent in their existence to any state of warfare, and they are causes which a state of warfare may render it necessary to change or abridge. But a promise confers a new right of itself. A distinction which did not escape the notice of Aristotle, who, in speaking of truth, says that he does not consider truth and sincerity in engagements, with relation to justice or injustice, but as belonging to another class of virtues.
II. As to engagements with pirates, we may observe, that Pompey in a great measure concluded the disputes with them by treaty, sparing their lives, and allowing them places to reside in, on condition of their abandoning their former way of life. The law of nations indeed has not established the same mode of communication with them, as among regular enemies in just and lawful war: but still the very circumstance of their being MEN, entitles them to those privileges which are sanctioned by the law of nature, among which the observance of engagements is one.
III. Let us consider if a more specious argument than Ciceros may not be devised on this subject.In the first place it may be stated that atrocious malefactors, forming no part of a state, may be punished by any one whatever, according to the law of nature. For those, who may be punished with death, may upon the same principle be deprived of their property and all their rights. And among rights may be enumerated the right of requiring a fulfilment of promises and engagements: the guilty may therefore be deprived of this right by way of penalty. In reply to which it may be said, this will certainly be the case, if the person is treated with, but not as a malefactor: for the very act of treating with him shews that he is not considered any longer in that light, but as one entitled to all the rights of treaty, the criminal part of his character not being taken into the account, all penalties on that score being, as it were remitted. For every act of treaty must be interpreted so as to avoid absurdity.
IV. An objection to treating with pirates upon principles of good faith is deduced from their calling, which is to extort terms by fear. Now where a promise has been extorted, the promisor is released from his engagement, as having unjustly sustained a damage, by an act repugnant to the nature of human liberty, and to the nature of human action, which ought to be free.
This, it must be admitted, may sometimes happen, but does not apply to all promise made to pirates. For to make the person, to whom a promise has been given, liable to release the engagement, the promiser himself must have been forced to give the promise under impressions of unjust fear. So that if any one has promised a ransom in order to redeem a friend from captivity, he will be bound by his promise. For in this case there was no impression of fear, as he came voluntarily to make the contract.
V. A promise too made through the compulsion of fear will be binding, where it has been ratified by the solemn sanction of an oath: for in that case it is not only one man making an engagement to a fellow creature, but binding himself to God by the most solemn appeal: against which neither fear nor any other motive can form an exception. Yet the heir of a promiser is not bound by any such obligation: because inheritances pass according to the rules of human intercourse established at the original institution of property: but the divine right to the fulfilment of oaths, as such, is not included in these. From the above arguments a conclusion may be deduced, that if any one violates a pledge given to such an enemy either upon oath or without oath, he will not on that account be liable to punishment among other nations, because from the general horror which piracy excites, nations have thought proper to pass over without notice the violation of rules of faith towards them.
XI.2 Solemn war, signifying such as is proclaimed and begun on both sides by authority of the sovereign or state, among its many other legal rights, includes also that of giving validity to every promise, which may be conductive to its termination, so that if either party, through an ill-grounded fear of further calamities, has even against his will, made promises unfavourable, or acceded to terms disadvantageous to himself, such an engagement will be binding. For the law of nations allows belligerent powers to alarm each other, if possible, into submission upon the most unequal terms, in the same manner, as it gives a sanction to many things not strictly equitable according to natural and municipal law. For if such a practice had not been established, wars, which are so frequent, could never have been brought to a conclusion, an object so much for the interest of mankind.
These are the rights of war which Cicero says ought to be inviolably preserved with an enemy: for an enemy not only retains his natural rights in war, but certain other rights originating in the consent of nations. Yet it does not follow from hence that any one, who has extorted such a promise in unjust war, can, consistently with piety and the duties of a good man, retain what he has so received, nor can he compel another to stand to such engagements, whether upon oath, or not. For the natural and internal injustice of such a promise always remains the same, nor can the injustice be removed or altered, till it has received a new and free concurrence from the party, by whom it was given.
XII. The only impressions of fear, that can be lawfully inspired in regular war, are those which are approved of by the law of nations. Thus no one can avail himself of a promise, extorted from an ambassador under impressions of fear excited by the seizing of his person.
XIII. and XIV. There are two cases, in which a person may not perform his engagement or promise, without being guilty of treachery: and those are, where the conditions have not been fulfilled, or some compensation has been made. For in one and the same treaty all the clauses seem connected with each other, as a kind of condition expressing the intention of one party to fulfil his engagement, if the other shall do the same. Therefore Tullus, in replying to the Albans invokes destruction upon the head of that people who first rejected the just claims of ambassadors demanding restitution, wishing that all the calamities of war might fall upon them. For, says Ulpian, he shall no longer be held as a confederate, who has renounced a treaty, owing to some condition, on which it was made, not being fulfilled. For which reason, wherever it is intended otherwise, it is usually stated in express terms, that the violation of any particular clause shall not annul the whole treaty.
XV. The origin of compensation was explained in the second book of this treatise,3 where it was said to be the power and right of receiving an equivalent, for some thing belonging to us, which is in the hands of another, or any thing due to us, which we cannot otherwise obtain: and much more then have we a right on the same account to detain any thing which is ALREADY IN OUR POWER, whether it be of a corporeal or an incorporeal kind. So that we are not obliged to perform a promise, if it be no more than equivalent to a thing of ours which the other party detains. Seneca, in his sixth book ON BENEFITS, says that a creditor often becomes under an obligation to his debtor, if he takes more than an equivalent for his debt. For though it may be granted that he has lent money, yet if by such a loan he has obtained the possession of lands, which he never bought, he changes situations with his debtor, and becomes a debtor in his turn.
XVI. It will be the same, if one of the contracting parties owes as much, or more, from some other engagement: and the debt cannot otherwise be obtained, than by taking advantage of the present contract, though it has no connection with the former debt. But in a LEGAL point of view, all actions are perfectly distinct, nor can their forms, their grounds, or their substance be confounded; but certain cases are confined to certain laws, to which it is necessary invariably to adhere: one law cannot be mixed with another, but every one in the prosecution of a right must tread upon invariable and beaten ground. But the law of nations does not regard such distinctions, it allows us to transgress them where there is no other means of obtaining our right.
XVII. and XVIII. The same may be said too, where the party exacting a promise, has not contracted any debt by engagement, but has done an injury to the promiser. And whatever is due by way of punishment may be balanced against a promise.
XIX. If while a law-suit is depending, the parties enter into an agreement of any kind, either to pay the costs, or to make good other damages, they cannot avail themselves both of this agreement, and claim a further compensation, for the original matter in dispute. In the same manner, if during the continuance of a war the belligerents negotiate for a conclusion of the original dispute, they are supposed thereby to settle every cause of hospitality, nor can they any further avail themselves of the rights of war, so as to enjoy both the advantages of them, and of negotiation, at the same time. For if this were the case, no treaties could ever be enforced with certainty.
It may be asked, of what nature are the things for which a promise of compensation should be given? In answer to which it may be observed, that such a promise or engagement may be made in lieu of some other obligation incurred during the course of a war: as for instance, where the breach of a truce has been committed, the rights of an ambassador violated, or any other action done, repugnant to the principles established by the law of nations among belligerent powers.
Still it must be observed that the parties, in making compensation, should abstain with the utmost caution from infringing upon the rights of a third person, especially where this can be done without abandoning the principles of the law of nations, which makes the effects of subjects answerable for the debts of the state. Besides it is the mark of a dignified mind to adhere to engagements even after receiving an injury. On which account the Indian sage Jarchas commended that king, who on sustaining an injury from a neighbouring and confederate power, said he should not think himself released from his sworn engagements, which were solemn acts, that no injustice on the part of another could repeal.
Almost all questions relating to pledges of faith given by one belligerent power to another, may be solved upon the principles before laid down, in explaining the nature and force of promises in general; of oaths, treaties, and conventions, and also in explaining the rights of the obligations of kings, and the method of interpreting doubtful points. But in order to remove every doubt and difficulty, perhaps a brief discussion of the most usual and practical topics of negotiation will not be deemed tedious.