CHAP. III. obtained his liberty, the price which was to have been paid for it is not a debt on him or his heirs, unless he had made CHAP. XVII. his agreement in a different manner; and he is not reputed to have received his liberty until the moment when he is perfectly free to depart at pleasure,-when neither the person who held him prisoner, nor that person's sovereign, opposes his release and departure. If he has only been permitted to take a journey, for the purpose of prevailing on his friends or his sovereign to furnish him with the means of ransoming himself, and dies before he is possessed of his full liberty, before he is finally discharged from his parole, nothing is due for his ransom. If, after having agreed on the price, he is detained in prison till the time of payment, and there dies in the interim, his heirs are not bound to pay the ransom-such an agreement being, on the part of the person who held him prisoner, no more than a promise of giving him his liberty on the actual payment of a certain sum. A promise of buying and selling does not bind the supposed purchaser to pay the price of the article in question, if it happens to perish before the completion of the purchase. But if the contract of sale be perfect, the purchaser must pay the price of the thing sold, though it should happen to perish before delivery, provided there was no fault or delay on the part of the vendor. For this reason, if the prisoner has absolutely concluded the agreement for his ransom, acknowledging himself, from that moment, debtor for the stipulated sum,-and is, nevertheless, still detained, no longer indeed as a prisoner, but a surety for the payment,-the price of the ransom is due, notwithstanding the circumstance of his dying in the interim. If the agreement says that the ransom shall be paid on a certain day, and the prisoner happens to die before that day, the heirs are bound to pay the sum agreed on: for the ransom was due; and the appointed day was assigned merely as the term of payment. soner re leased on condition of From a rigid application of the same principles, it follows & 282. Prithat a prisoner, who has been released on condition of procuring the release of another, should return to prison, in case the latter happens to die before he has been able to procuring procure him his liberty. But certainly such an unfortunate the release case is entitled to lenity; and equity seems to require that of another. this prisoner should be allowed to continue in the enjoyment of that liberty which has been granted to him, provided he pays a fair equivalent for it, since he is now unable to purchase it precisely at the price agreed on. If a prisoner, who has been fully set at liberty, after hav- 3 283. Priing promised but not paid his ransom, happens to be taken a soner resecond time, it is evident that, without being exempted from taken before the payment of his former ransom, he will have to pay a his former second, if he wishes to recover his liberty. he has paid ransom. BOOK UL. CHAP. XVII. 284. Pri soner rescued before he has re On the other hand, though the prisoner has agreed for the price of his ransom, if, before the execution of the compact, before he is set at liberty in virtue of it, he be retaken and delivered by his own party, he owes nothing. I here evidently suppose that the contract for his ransom was ceived his li- not completed, and that the prisoner had not acknowledged himself debtor for the sum agreed on. The person who held [421] him prisoner had, as it were, only made him a promise of selling, and he had promised to purchase: but the purchase and sale had not actually passed into effect; the property was not actually transferred. berty. 285. Whether the things which a prisoner has found means to conceal, be The property of a prisoner's effects is not vested in the captor, except so far as he seizes on those effects at the time of his capture. Of this there is no doubt, in these modern times, when prisoners of war are not reduced to slavery. And, even by the law of nature, the property of a slave's goods does not, without some other reason, pass to the maslong to him.ter of the slave. There is nothing in the nature of slavery which can of itself produce that effect. Though a man obtains certain rights over the liberty of another, does it thence follow that he shall have a right over his property also? When, therefore, the enemy has not plundered his prisoner, or when the latter has found means to conceal something from the captor's search, whatever he has thus saved still continues to be his own property, and he may employ it towards the payment of his ransom. At present, even the plundering of prisoners is not always practised: the greedy soldier sometimes proceeds to such lengths; but an officer would think it an indelible stain on his character, to have deprived them of the smallest article. A party of private French troopers, who had captured a British general at the battle of Rocoux, claimed no right to anything belonging to their prisoner, except his arms alone. for the re lease of a prisoner. 2286. Hos- The death of the prisoner extinguishes the captor's right. tages given Wherefore, if any person is given as a hostage in order to procure a prisoner's enlargement, he ought to be released the moment the prisoner dies; and, on the other hand, if the hostage dies, his death does not reinstate the prisoner in the possession of his liberty. The reverse of this is true, if the one, instead of being simply a hostage for the other, had been substituted in his stead. 538 BOOK. III. CHAP. XVIII. CHAP. XVIII. OF CIVIL LAW. rights IT is a question very much debated, whether a sovereign 3 287. Founis bound to observe the common laws of war towards rebel- dation of the lious subjects who have openly taken up arms against him? sovereign's A flatterer, or a prince of a cruel and arbitrary disposition, against the will immediately pronounce that the laws of war were not rebels. made for rebels, for whom no punishment can be too severe. [ 422 ] Let us proceed more soberly, and reason from the incontestable principles above laid down. In order clearly to discover what conduct the sovereign ought to pursue towards revolted subjects, we must, in the first place, recollect that all the sovereign's rights are derived from those of the state or of civil society, from the trust reposed in him, from the obligation he lies under of watching over the welfare of the nation, of procuring her greatest happiness, of maintaining order, justice, and peace within her boundaries (Book I. Chap. IV). Secondly, we must distinguish the nature and degree of the different disorders which may disturb the state, and oblige the sovereign to take up arms, or substitute forcible measures instead of the milder influence of authority. The name of rebels is given to all subjects who unjustly 288. Who take up arms against the ruler of the society, whether their are rebels. view be to deprive him of the supreme authority, or to resist his commands in some particular instance, and to impose con ditions on him. rection, se A popular commotion is a concourse of people who as- 2289. Popusemble in a tumultuous manner, and refuse to listen to the lar commovoice of their superiors, whether the design of the assembled tion, insur multitude be levelled against the superiors themselves, or dition. only against some private individuals. Violent commotions. of this kind take place when the people think themselves aggrieved; and there is no order of men who so frequently give rise to them as the tax-gatherers. If the rage of the malecontents be particularly levelled at the magistrates, or others vested with the public authority, and they proceed to a formal disobedience or acts of open violence, this is called a sedition. When the evil spreads,-when it infects the majority of the inhabitants of a city or province, and gains such strength that even the sovereign himself is no longer obeyed, it is usual more particularly to distinguish such a disorder by the name of insurrection. All these violences disturb the public order, and are state 290. How crimes, even when arising from just causes of complaint. the sove suppress them. BOOK III. For violent measures are forbidden in civil society: the inCHAP. XVIII. jured individuals should apply to the magistrate for redress; reign is to and if they do not obtain justice from that quarter, they may lay their complaints at the foot of the throne. Every citizen should even patiently endure evils, which are not insupportable, rather than disturb the public peace. A denial of justice on the part of the sovereign, or affected delays, can alone excuse the furious transports of a people whose patience has been exhausted, and even justify them, if the evils be intolerable, and the oppression great and manifest. But what conduct shall the sovereign observe towards the insurgents? I answer, in general,-such conduct as shall at the same time be the most consonant to justice, and the most salutary to the state. Although it be his duty to repress those who unnecessarily disturb the public peace, he is bound to show clemency towards unfortunate persons, to whom just causes of complaint have been given, and whose sole crime consists in the attempt to do themselves justice: they have been deficient in patience rather than fidelity. Subjects who [423] rise against their prince without cause deserve severe punishment: yet, even in this case, on account of the number of the delinquents, clemency becomes a duty in the sovereign. Shall he depopulate a city, or desolate a province, in order to punish her rebellion? Any punishment, however just in itself, which embraces too great a number of persons, becomes an act of downright cruelty. Had the insurrection of the Netherlands against Spain been totally unwarrantable, universal detestation would still attend the memory of the duke of Alva, who made it his boast that he had caused twenty thousand heads to be struck off by the hands of the common executioner. Let not his sanguinary imitators expect to justify their enormities by the plea of necessity. What prince ever suffered more outrageous indignities from his subjects than Henry the Great, of France? Yet, his victories were ever accompanied by a uniform clemency; and that excellent prince at length obtained the success he deserved: he gained a nation of faithful subjects; whereas the duke of Alva caused his master to lose the United Provinces. Crimes, in which a number of persons are involved, are to be punished by penalties which shall equally fall on all the parties concerned the sovereign may deprive a town of her privileges, at least, till she has fully acknowledged her fault: as to corporal punishment, let that be reserved for the authors of the disturbances, for those incendiaries who incite the people to revolt. But tyrants alone will treat, as seditious, those brave and resolute citizens who exhort the people to preserve themselves from oppression, and to vindicate their rights and privileges: a good prince will commend such virtuous patriots, provided their zeal be tempered with moderation and prudence. If he has justice and his duty at heart,-if he aspires to that immortal and unsullied glory of being the BOOK III. father of his people, let him mistrust the selfish suggestions CHAP. XVIII. of that minister who represents to him as rebels all those citizens who do not stretch out their necks to the yoke of slavery,—who refuse tamely to crouch under the rod of arbitrary power. perform the promises he In many cases, the safest, and at the same time the most ? 291. He is just method of appeasing seditions, is to give the people satis- bound to faction. And if there existed no reasons to justify the insurrection (a circumstance which, perhaps, never happens), even has made to in such case, it becomes necessary, as we have above observed, the rebels. to grant an amnesty where the offenders are numerous. When the amnesty is once published and accepted, all the past must be buried in oblivion; nor must any one be called to account for what has been done during the disturbances: and, in general, the sovereign, whose word ought ever to be sacred, is bound to the faithful observance of every promise he has made, even to rebels,-I mean, to such of his subjects as have revolted without reason or necessity. If his promises are not inviolable, the rebels will have no security in treating with him when they have once drawn the sword, they must [ 424 ] throw away the scabbard, as one of the ancients expresses it; and the prince, destitute of the more gentle and salutary means of appeasing the revolt, will have no other remaining expedient than that of utterly exterminating the insurgents. These will become formidable through despair; compassion will bestow succours on them; their party will increase, and the state will be in danger. What would have become of France, if the leaguers had thought it unsafe to rely on the promises of Henry the Great? The same reasons which should render the faith of promises inviolable and sacred between individual and individual, between sovereign and sovereign, between enemy and enemy (Book II. §§ 163, 218, &c., and Book III. § 174), subsist in all their force between the sovereign and his insurgent or rebellious subjects. However, if they have extorted from him odious conditions, which are inimical to the happiness of the nation, or the welfare of the state, as he has no right to do or grant any thing contrary to that grand rule of his conduct, which is at the same time the measure of his power, he may justly revoke any pernicious concessions which he has been obliged to make, provided the revocation be sanctioned by the consent of the nation, whose opinion he must take on the subject, in the manner and forms pointed out to him by the constitution of the state. But this remedy is to be used with great reserve, and only in matters of high importance, lest the faith of promises should be weakened and brought into disrepute.* An instance of this occurs in the insurrection at Madrid, in 1766. At transactions which took place after the the requisition of the cortes, the king |