detained

But if detained by force, as by sickness, so as to be unable § 274. to depart in time, a proper respite should be allowed him; Of persons for safety has been promised to him, and though assured him, forcibly beonly for a limited time, it is not his fault that he has not de- yond the parted within the term. The case is different from that of an term. enemy coming into our country during a truce; he has no special promise from us; he at his own peril make use of a general liberty allowed by the suspension of hostilities: all we have promised to the enemy is, to forbear hostilities for a certain time, and at the expiration of it we are concerned to see that their course be freely renewed, without the disturbance of endless excuses and pretences.

conduct

The safe-conduct does not expire at the decease or deposi- § 275. tion of him who granted it; for it was given in virtue of the The safesovereign authority which never dies, nor is the efficacy there- does not exof annexed to the person exercising it. It is of this act as of pire at the other ordinances of the public power; their validity, their du- death of ration does not depend on the life or removal of him who en- him who acted them, unless in their very nature, or by express decla- gave it. ration, they are personal to him.

This does not hinder but that the successor may, on good § 276. reasons, revoke a safe-conduct; even he from whose hands it How it may came may in like case revoke it, and is not always obliged to be revoked. make known his reasons. Every privilege, when it becomes detrimental to the state, may be revoked; such as a gratuitous privilege, purely and simply, a purchased privilege, by indemnifying the parties concerned. Suppose a prince or his general are preparing a secret expedition, is he to suffer that by means of a safe-conduct before obtained, his preparatives shall be inspected, by which the enemy may gain intelligence of them? But a safe-conduct is not to be used as a snare; if it be revoked, the bearer must be allowed time and liberty to depart in safety. If he, like any other traveller, be detained some time to prevent his carrying intelligence to the enemy, no ill treatment is to be offered him; nor is he to be kept longer than while the reasons of his detainder subsist.

with the

If the safe-conduct has this clause, For such time as we § 277. shall think fit, it gives only a precarious right, and is revocable of a safeevery moment: but while it is not express, it remains valid; it ex- conduct pires on the death of him who gave it, who from that time cea- clause. For ses to will the continuation of the privilege; yet it must always such time as be understood that from the moment of the expiration of such we shall conduct, the bearer is to be allowed a proper time for his safe think fit. departure.

Of conven

After discussing the right of making prisoners at war, the $278. obligation of releasing them at the peace by exchange or ran- tions relat som, and of that incumbent on the sovereign to deliver them, ing to

ers.

the ransom it remains to consider the nature of conventions relating to of prisonsuch unfortunate persons. If sovereigns at war have agreed on a cartel for the exchange or ransom of prisoners, they are faithfully to observe it no less than every other convention; but if, as was formerly the frequent practice, the state leaves to every prisoner, at least during the war, the care of redeeming himself; such particular conventions offer many questions, of which we shall only touch on the principal.

$279.

a ransom

He who has acquired a lawful right of demanding a ransom The right from his prisoner may transfer his right to a third person. of requiring This was practised in the last ages: it was frequent for military persons to resign their prisoners to others, and consequentmay be transferred. ly all the rights they held over them. But as the person taking a prisoner is obliged, for the sake of his reputation to treat him with justice and humanity (§ 150.) he is not to transfer his right in an unlimited manner, to one who might probably abuse it when he has agreed with his prisoner concerning the price of the ransom, he may transfer the right to whom he pleases.

§ 280. What may

annul the convention made for

the rate of

On the conclusion of an agreement made with a prisoner for the price of his ransom, it becomes a perfect contract, and cannot be receded from under pretence that the prisoner is discovered to be richer than was imagined: for there is no manner of necessity he should be rated according to the wealth of the ransom. a prisoner; that is not the scale for measuring the right of detaining a prisoner of war (§ 148, 153.) But it is natural to proportion the price of the ransom to the prisoner's rank and character; the liberty of an officer of distinction being of greater consequence than that of a private man or inferior officer. If the prisoner has not only concealed but disguised his rank, it is a sordid fraud, and gives a right for annulling the agreement.

fore pay

ment of ransom.

- $281. If a prisoner, having agreed on the price of his ransom, Of a prison- dies before payment, it is asked whether this price be due, er dying be- and whether the heirs are obliged to discharge it? Unquestionably they are obliged to it, if the prisoner died in the possession of his liberty for from the moment of his release, in consideration of which he had promised a sum, this sum becomes due, and does not at all belong to his heirs. But if he had not obtained his liberty at the time of his death, it can be no debt to him or his heirs, unless the agreement was otherwise; and he is not reputed to have received his liberty till he is absolutely permitted to depart free; and neither he whose prisoner he was, nor the sovereign, opposed his release and departure.

If he has only been permitted to take a journey for applying to his friends, or his sovereign, to furnish him with the

means of ransoming himself, and he dies before he is possessed of his full liberty, before his final discharge from his parole, nothing is due for his ransom. If after agreeing on the price, he is detained in prison till the time of payment, and he dies before, the debt is paid by his death, and does not affect his heirs; such an agreement on the side of him who detains his prisoner, being no more than a promise of giving him his liberty for a certain sum paid down. A promise of buying and selling does not suppose the purchaser to pay the price of a thing, if it happens to perish before the bargain is concluded. But if the contract of sale be perfect, the purchaser shall pay the price of the things sold, though it should happen to perish before the deliverance of it, provided there was no fault or delay in the seller. For this reason, if the seller has absolutely concluded the agreement of the ransom, and from that time owns himself a debtor for the stipulated sum, remaining no longer as a prisoner, but for the security of the payment; his intervening death does not extinguish the debt, the ransom agreed on remains still due.

If the agreement says, that the ransom shall be paid on a certain day, and the prisoner happens to die before that day then the heirs are bound to discharge it, for the ransom was due, and the day was assigned, only, as the term for payment. From the same principles, strictly speaking, it follows, that § 282. a prisoner, released on condition of procuring the release or of a prisondischarge of another, should return to prison, in case the later released ter happened to die before he could procure him his liberty of procuring But certainly such an unfortunate case is entitled to regard, the release and equity seems to require that this prisoner should continue of another. in the enjoyment of a liberty provided he pays a just equivalent, it being now out of his power to purchase it precisely at the price agreed on.

If a prisoner fully set at liberty after having promised, but not paid his ransom, happens to be taken a second time, it is evident that, without being exempted from paying his first ransom, if he is willing to be set at liberty, he must pay a second

ransom.

On the contrary, though the prisoner has agreed for the rate of his ransom, if, before the execution of the compact, before he is set at liberty by virtue of it, he be retaken by his party, he owes nothing. I here evidently suppose, that the finishing hand was not put to the compact, that the prisoner had not acknowledged himself debtor for the rate of his ranHe whose prisoner he was, 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.

s om.

on condition

$283. of him who

is taken a second time

before he has paid his first ransom.

§ 284.

Of him who is delivered

before he has received his liberty.

§ 285.

Whether

the things

which a prisoner has found

means to -conceal, belong to him.

286.

Of the hostage given for the release

of a pris

oner.

The property belonging, or what belongs to a person does not pass to him who takes him prisoner, unless at the same time he seizes on such things. Of this there is no doubt, especially in our modern times, when prisoners of war do not fall into slavery. And even by the law of nature, the property of a slave's goods does not without some other reason, pass to the master of the slave. There is nothing in slavery of which this can in itself be the natural effect. If a man obtains a power over the liberty of another, does it follow that he has likewise a right over his property? Therefore if an enemy has not stript his prisoner, or the latter has found means to conceal something from his search, what he has preserved should belong to him, or he may employ it towards the payment of his ransom. At present even prisoners are not always stripped. If the ravenous soldier runs such lengths, an officer should be above taking the minutest article from them. An English general was taken prisoner at the battle of Rocoux, and though the persons in whose hands he fell were only troopers, they claimed no right to any thing but

his arms.

The death of a prisoner puts a period to the right of him who had taken him, therefore an hostage given for the procuring a prisoner's liberty is to be released, the moment the prisoner expires; and if the hostage dies, the prisoner is not released by such death. The reverse of this is true, if one, instead of being hostage for the other, had been substituted in his stead.

$287. Founda

tion of the

rebels.

CHAPTER XVIII

Of a Civil War.

IT is a question very much debated, whether a sovereign is to observe the common laws of war towards rebellious sub

sovereign's jects, who have openly taken up arms against him? A flatterright er, or a cruel ruler immediately says, that the laws are not against the made for rebels, for whom no punishment can be too severe. Let us proceed more mildly and reason from the incontestible principles above laid down. That we may clearly see how the sovereign is to behave towards revolted subjects, we should first remember, that all the sovereign's rights are derived from those 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 its greatest happiness, of maintaining order, justice, and peace therein (Book 1. Ch. IV.) Secondly, we must distinguish the nature and degree of the

different disorders which may disturb the state, oblige the sovereign to take arms or substitute the means of force instead of those of authority.

All subjects unjustly taking arms against the head of a soci- § 288. ety are termed rebels, whether their view be to deprive him Who are of the supreme authority, or whether they intend to resist his rebels. commands, in some particular affair, in order to impose conditions on him.

$289.

tion.

Popular commotion is a concourse of people tumultuously Popular assembled, and resist the voice of their superiors, whether commotion, their design be against those superiors themselves, or only insurrecsome private persons. Such violent commotions are common tion, sediwhen the people think themselves aggrieved, and are occasioned by no order of men so frequently 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 violent proceedings, it is called a sedition. When the evil spreads infecting great numbers in the city or provinces, or subsists in such a manner that the sovereign is no longer obeyed, such a disorder custom has more particularly distinguished by the name of insur

rection.

§ 290.

How the sovereign

All these violences disturb the public order, and are crimes. of state, even when arising from just causes of complaint. For violent measures are interdicted in civil society; the injured is to sup party should have recourse to the magistrates to whom they press them. may apply for redress; and if justice be not obtained from them, their complaints may then be laid at the foot of the throne. Every citizen should even patiently suffer supportable evils, rather than disturb the public peace. Nothing less than a denial of justice from the sovereign, or affected delays, can excuse the furious commotions of a provoked people; they in some measure justify themselves if the evils be intolerable, and the oppressions great and manifest. But what conduct shall the sovereign observe towards the insurgents? I answer in general, that which shall at the same time be most consentaneous to justice, and most salutary to the state. If he is to repress those who unnecessarily disturb the public peace, he is by the same reasoning to shew clemency towards unfortunate persons, to whom just causes of complaint have been given, and who are guilty only in having undertaken to do themselves justice: they have been wanting in patience rather than fidelity. Subjects rising against their prince without cause, deserve severe punishments, yet here the number of delinquents calls for the sovereign's clemency. Shall he depopulate a city, or desolate a province, in punishing their rebellion? Such a chastisement, however just in itself, becomes