cafe, as well as in thofe above mentioned, the tranfaction is a pignorary contract, in which free men are delivered up, instead of towns, countries, or jewels. With refpect to this contract, therefore, we may confine ourselves to thofe particular obfervations which the difference of the things pledged renders neceffary. The fovereign who receives hoftages, has no other right over § 246. What right them, than that of fecuring their perfons, in order to detain them till the entire accomplishment of the promites of which they are over hofthe pledge. He may therefore take precautions to prevent their tages. efcaping from him: but thofe precautions fhould be moderated by humanity, towards men whom he has no right to use ill; and they ought not to be extended beyond what prudence requires.

It is pleafing to behold the European nations in the prefent age content themselves with the baie parole of their hostages. The English noblemen who were fent to France in that character in pursuance of the treaty of Aix-la-Chapelle, in 1748, to ftay till the reftitution of Cape Breton, were folely bound by their word of honour, and lived at court, and at Paris, rather as minifters of their nation, than as hostages.

we have

The liberty of the hoftages is the only thing pledged: and if§ 147 he who has given them breaks his promife, they may be detained Theit ber ty alone is in captivity. Formerly they were in fuch cafes put to death - pledged. an inhuman cruelty, founded on an error. It was imagined that the fovereign might arbitrarily difpofe of the lives of his fubjects, or that every man was the master of his own life, and had a right to ftake it as a pledge when he delivered himfelf up as an hoftage.

are to be

As foon as the engagements are fulfilled, the caufe for which the 248. hoftages were delivered no longer fubfifts: they then immediate- When they ly become free, and ought to be restored without delay. They fent back. ought alfo to be reftored, if the reafon for which they were demanded does not take place: to detain them then, would be to abufe the facred faith upon which they were delivered. The perfidious Chriftiern H. king of Denmark, being delayed by contrary winds before Stockholm, and, together with his whole fleet, ready to perith with famine, made proposals of peace: whereupon, the adminiftrator, Steno, imprudently trufting to his promifes, furnished the Danes with provifions, and even gave Guftavus and fix other noblemen as hoitages for the fafety of the king, who pretended to have a defire to come on fhore: but, with the first fair wind, Chriftiern weighed ancher, and carried off the hoftages; thus repaying the generofity of his enemy by an infamous act of treachery*.

Whether

Hottages being delivered on the faith of treaties, and he who receives them, promifing to reftore them, as foon as the pro- they may be mife, of which they are the furety, fhall be fulfilled,-fuch en- detained ou gagements ought to be literally accomplished: and the hostages any other hould be really and faithfully restored to their former condition, account. as foon as the accomplishment of the promife has difengaged

* Hiftory of the Revolutions of Sweden.

them.

§ 250. They may

be detained for their

own actions.

them. It is therefore not allowable to detain them for any other caufe; and I am aftonished to find that fome learned writers teach a contrary doctrine *. They ground their opinion upon the principle which authorifes a fovereign to seize and detain the fubjects of another state in order to compel their rulers to do him juftice. The principle is true; but the application is not just. Thefe authors feem to have overlooked the circumftance, that, were it not for the faith of the treaty by virtue of which the hoftage has been delivered, he would not be in the power of that fovereign, nor expofed to be fo easily seized; and that the faith of fuch a treaty does not allow the fovereign to make any other use of his hoftage than that for which he was intended, or to take advantage of his detention beyond what has been exprefsly ftipulated. The hoftage is delivered for the fecurity of a promife, and for that alone. As foon, therefore, as the promife is fulfilled, the hostage, as we have just observed, ought to be restored to his former condition. To tell him that he is released as a hoftage, but detained as a pledge for the fecurity of any other pretenfion, would be taking advantage of his fituation as a hostage, in evident violation of the fpirit and even the letter of the convention, according to which, as foon as the promife is accomplished, the hoftage is to be restored to himself and his country, and reinftated in his priftine rank, as if he had never been a hoftage. Without a rigid adherence to this principle, it would no longer be fafe to give hoftages, fince princes might on every occafion eafily devife fome pretext for detaining them. Albert the Wife, duke of Auftria, making war against the city of Zurich in the year 1351, the two parties referred the decifion of their difputes to arbitrators, and Zurich gave hoftages. The arbitrators paffed an unjust fentence, dictated by partiality. Zurich, nevertheless, after having made a well-grounded complaint on the fubject, determined to fubmit to their decifion. But the duke formed new pretenfions, and detained the hostages †, contrary to the faith of the compromife, and in evident contempt of the law of nations.

But a hostage may be detained for his own actions, for crimes. committed, or debts contracted in the country while he is in hoftage there. This is no violation of the faith of the treaty. In order to be fure of recovering his liberty according to the terms of the treaty, the hoftage muft not claim a right to commit, with impunity, any outrages against the nation by which he is kept; and when he is about to depart, it is just that he should pay his debts.

§ 251. It is the party who gives the hoftages, that is to provide for Of the fup- their fupport; for it is by his order, and for his fervice, that they port of hofare in hoftage. He who receives them for his own fecurity is tages. not bound to defray the expenfe of their fubfiftence, but fimply

* Grotius, lib. iii. cap. xx. § 55.-Wolfius, Jus Gent. § 503

Tichudi, vol. i. p. 421.

that

that of their cuftody if he thinks proper to fet a guard over

them.

The fovereign may difpofe of his fubjects for the service of the $252. A fubject state; he may therefore give them also as hoftages; and the per- cannot refon who is nominated for that purpofe, is bound to obey, as he fufe to be a is on every other occafion when commanded for the fervice of hostage. his country. But as the expenfes ought to be borne equally by the citizens, the hoftage is entitled to be defrayed and indemnified at the public charge.

It is, evidently, a fubject alone, who can be given as a hoftage against his will. With a vaffal, the cafe is otherwife. What he owes to the fovereign, is determined by the conditions of hist fief; and he is bound to nothing more. Accordingly, it is a decided point that a vaffal cannot be constrained to go as a hostage, unless he be at the fame time a subject.

Whoever has a power to make treaties or conventions, may give and receive hoftages. For this reafon, not only the fovereign, but also the subordinate authorities, have a right to give hostages in the agreements they make, according to the powers annexed to their office, and the extent of their commission. The governor of a town, and the befieging general, give and receive hoftages for the fecurity of the capitulation: whoever is under their command, is bound to obey, if he is nominated for that purpose.

Hoftages ought naturally to be perfons of confequence, fince $253. they are required as a fecurity. Perfons of mean condition would Rank of the furnifh but a feeble fecurity, unlefs they were given in great numhoftages. bers. Care is commonly taken to fettle the rank of the hostages that are to be delivered; and the violation of a compact in this particular is a flagrant dereliction of good-faith and honour. It was a fhameful act of perfidy in La Trimouille to give the Swiss only hostages from the dregs of the people, inftead of four of the principal citizens of Dijon, as had been ftipulated in the famous treaty we have mentioned above (§ 212). Sometimes the principal perfons of the state, and even princes, are given in hostage. Francis I. gave his own fons as fecurity for the treaty of Madrid. The fovereign who gives hoftages ought to act ingenuously in the affair, giving them in reality as pledges of his word, and confequently with the intention that they thould be kept till the entire accomplishment of his promife. He cannot therefore approve of their making their efcape: and if they take fuch a step, fo far from harbouring them, he is bound to fend them back. The hostage, on his fide, conformably to the prefumed intention of his fovereign, ought faithfully to remain with him to whom he is delivered, without endeavouring to escape. Cloelia made her escape from the hands of Porfenna, to whom the had been delivered as a hoftage: but the Romans fent her back, that they might not incur the guilt of violating the treaty *.

* Et Romani pignus pacis ex fœdere reflituerunt. Tit. Liv. lib. ii. cap. xiii.

$254.

They ought

not to make their efcape.

6.255.

hoftage

If the hoftage happens to die, he who has given him is not Whether a obliged to replace him, unlefs this was made a part of the agree who dies is ment. The hoftage was a fecurity required of him: that fecurity is loft without any fault on his fide; and there exifts no reafon why he fhould be obliged to give another.

to be re

placed.

256.

Of him who takes the

place of a holtage.

257. A hottage fucceeding to the crown.

$258. The liabili

If any one fubftitutes himself for a time in the place of a hostage, and the hostage happens in the interim to die a natural death, the fubftitute is free: for in this cafe, things are to be replaced in the fame fituation in which they would have been if the hostage had not been permitted to abfent himfelf, and fubftitute another in his ftead and for the fame reason, the hoftage is not free by the death of him who has taken his place only for a time. It would be quite the contrary, if the hoftage had been exchanged for another: the former would be abfolutely free from all engagement; and the perfon who had taken his place would alone be bound.

If a prince, who has been given in hoftage, fucceeds to the crown, he ought to be releafed on the delivery of another fufficient hoftage, or a number of others, who fhall together conftitute an aggregate fecurity equivalent to that which he himself afforded when he was originally given. This is evident from the treaty itself, which did not import that the king fhould be a hoftage. The detention of the king's perfon by a foreign power is a thing of too interefting a nature to admit a prefumption that the ftate had intended to expofe herfelf to the confequences of fuch an event. Good-faith ought to prefide in all conventions; and the manifeft or juftly prefumed intention of the contracting parties ought to be adhered to. If Francis I. had died after having given his fons as hoftages, certainly the dauphin should have been released: for he had been delivered only with a view of reftoring the king to his kingdom; and if the emperor had detained him, that view would have been fruftrated, fince the king of France would ftill have been a captive. It is evident that, in this reafoning, I proceed on the fuppofition that no violation of the treaty has taken place on the part of the state which has given a prince in hoftage. In cafe that ftate had broken its promise, advantage might reasonably be taken of an event which rendered the hostage ftill more valuable, and his release the more neceffary.

The liability of a hoftage, as that of a city or a country, exty of the pires with the treaty which it was intended to fecure (§§ 243, hoftage 248): and confequently if the treaty is perfonal, the hoftage is ends with free at the moment when one of the contracting powers happens

the treaty.

to die.

$259. The fovereign who breaks his word after having given hostThe vila- ages, does an injury not only to the other contracting power, tion of the but alfo to the hoftages themfelves. For though fubjects are intreaty is an deed bound to obey their fovereign who gives them in hoftage, injury done to the hof that fovereign has not a right wantonly to facrifice their liberty, and expofe their lives to danger without juft reafons. Delivered

tages.

up

up as a fecurity for their fovereign's promife, not for the purpofe of fuffering any harm,-if he entails misfortune on them by violating his faith, he covers himself with double infamy. Pawns and mortgages ferve as fecurities for what is due; and their acquifition indemnifies the party to whom the other fails in his engagements. Hoftages are rather pledges of the faith of him who gives them; and it is fuppofed that he would abhor the idea of facrificng innocent perfons. But if particular conjunctures oblige a fovereign to abandon the hoftages,-if, for example, the party who has received them violates his engagements in the first inftance, and, in confequence of his violation, the treaty can no longer be accomplished without expofing the state to danger,-no measure should be left untried for the delivery of thofe unfortunate hoftages; and the ftate cannot refuse to compenfate them for their fufferings, and to make them amends, either in their own perfons, or in thofe of their relatives.

§ 260. The fate of the hoftage, when he

engage

At the moment when the fovereign, who has given the hoftage, has violated his faith, the latter ceafes to retain the character of a hostage, and becomes a prifoner to the party who had received him, and who has now a right to detain him in perpe- who has tual captivity. But it becomes a generous prince to refrain from given him an exertion of his rights at the expenfe of an innocent indivi- fails in his dual. And as the hostage is no longer bound by any tie to his ments. own fovereign who has perfidiously abandoned him,-if he chooses to transfer his allegiance to the prince who is now the arbiter of his fate, the latter may acquire a ufeful subject, instead of a wretched prifoner, the troublesome object of his commiferation. Or he may liberate and difmifs him, on fettling with him. the conditions.

We have already observed that the life of a hoftage cannot $261. Of ther ght be lawfully taken away on account of the perfidy of the party founded on who has delivered him. The custom of nations, the most con- cuftom. ftant practice, cannot justify such an inftance of barbarous cruelty, repugnant to the law of nature. Even at a time when that dreadful custom was but too much authorifed, the great Scipio publicly declared that he would not fuffer his vengeance to fall on innocent hoftages, but on the perfons themselves who had incurred the guilt of perfidy, and that he was incapable of punishing any but armed enemies *. The emperor Julian made the fame declaration †. All that fuch a custom can produce, is impunity among the nations who practife it. Whoever is guilty of it cannot complain that another is so too: but every nation may and ought to declare, that the confiders the action as a barbarity injurious to human nature.

*Tit. Liv. lib. xxviii. cap. xxxiv.

+ See Grotius, lib. iii. cap. xi. § 13, not. 2.

R 2

CHAP.