§ 238.

The fove

reign's faith engaged in them.

$239.

chief is naturally fuppofed to be invested. Thus, the governor of a town, and the general befieging it, may agree on a ceffation of arms, for the purpose of burying the dead, or of coming to a parley: they may even fettle a truce for fome months, on condition that the town, if not relieved within that time, hall furrender, &c. Conventions of this kind only tend to mitigate the evils of war, and are not likely to prove detrimental to any one.

All these truces and fufpenfions of arms are concluded by the authority of the fovereign, who confents to fome of them in his own perfon, and to others through the miniftry of his generals and officers. His faith is pledged by fuch agreements, and he is bound to enforce their obfervance.

The truce binds the contracting parties from the moment of When the its being concluded, but cannot have the force of a law with gins to be regard to the fubjects on both fides, till it has been folemnly obligatory. proclaimed: and as an unknown law impofes no obligation, the

truce be

§ 240. tion of

the truce.

§ 241.

A

truce does not become binding on the fubjects, until duly notified
to them. Hence, if, before they can have obtained certain in-
formation of its being concluded, they commit any act contrary
to it, any act of hoftility,-they are not punishable. But as
the fovereign is bound to fulfil his promises, it is incumbent on
him to cause reftitution to be made of all prizes taken subsequent
to the period when the truce fhould have commenced. The
fubjects who through ignorance of its existence have failed to
obferve it, are not obliged to offer an indemnification, any more
than their fovereign who was unable to notify it to them fooner:
the non-obfervance of the truce in this cafe is merely an acci-
dent, not imputable to any fault on his part or on theirs.
thip being out at fea at the time when the truce is published,
meets with a fhip belonging to the enemy, and finks her: as
there is no guilt in this cafe, fhe is not liable to pay any damage.
If fhe has made a capture of the veffel, all the obligation fhe
lies under is to restore the prize, as she must not retain it in vio-
lation of the truce. But thofe who fhould, through their own
fault, remain ignorant of the publication of the truce, would be
bound to repair any damage they had caufed contrary to its
tenor. The fimple commiffion of a fault, and especially of a
flight one, may to a certain degree be fuffered to pass with im-
punity; and it certainly does not deferve to be punished with
equal feverity as a premeditated tranfgreffion: but it furnishes
no plea against the obligation to repair the damages accruing.
In order, as far as poffible, to obviate every difficulty, it is ufual
with fovereigns, in their truces as well as in their treaties of peace,
to affign different periods for the ceffation of hoftilities, accord-
ing to the fituation and diftance of places.

Since a truce cannot be obligatory on the fubjects unless known to them, it must be folemnly published in all the places where it is intended that it fhould be obferved.

If any of the subjects, whether military men or private citiSubjects zens, offend against the truce, this is no violation of the public

truce,

Violation

faith; nor is the truce thereby broken. But the delinquents contraven, fhould be compelled to make ample compenfation for the da-ing the mage, and feverely punifhed. Should their fovereign refuse to do juftice on the complaints of the party injured, he thereby becomes acceffary to the trefpafs, and violates the truce. Now, if one of the contracting parties, or any perfon by his or- 243. der, or even with his fimple confent, commits any act contrary of the to the truce, it is an injury to the other contracting party: the truce. truce is diffolved; and the injured party is entitled immediately to take up arms, not only for the purpose of renewing the operations of the war, but also of avenging the recent injury offered to him.

Sometimes a penalty on the infractor of the truce is recipro- $243, cally ftipulated and then the truce is not immediately broken on Stipulation of a penalty the first infraction. If the party offending fubmits to the penalty, against the and repairs the damage, the truce ftill fubfifts, and the offended infractor. party has nothing farther to claim. But if an alternative has been agreed on, viz. that in cafe of an infraction the delinquent shall suffer a certain penalty, or the truce fhall be broken, it is the injured party who has the choice of insisting on the penalty or taking advantage of his right to recommence hoftilities: for if this were left at the option of the infractor, the ftipulation of the alternative would be nugatory, fince, by refusing to submit to the penalty fimply ftipulated, he would break the compact, and thereby give the injured party a right to take up arms again. Befides, in cautionary claufes of this kind, the alternative is not fuppofed to be introduced in favour of him who fails in his engagements, and it would be abfurd to fuppofe that he referves to himself the advantage of breaking them by his infraction rather than undergo the penalty. He might as well break them at once openly. The only object of the penal clause is to fecure the truce from being fo easily broken; and there can be no other reafon for introducing it with an alternative, than that of leaving to the injured party a right, if he thinks fit, to diffolve a compact from which the behaviour of the enemy fhews him he has little fecurity to expect.

Time of

It is neceffary that the time of the truce be accurately specified, § 244. in order to prevent all doubt or dispute respecting the period the truce. of its commencement, and that of its expiration. The French language, extremely clear and precife for those who know how to use it with propriety, furnishes expreffions which bid defiance to the most fubtle chicanery. The words "inclufively” and "exclufively" banish all ambiguity which may happen to be in the convention, with regard to the two terms of the truce, its beginning and end. For instance, if it be faid that "the truce "thall laft from the firft of March inclufively, until the fifteenth "of April, alfo inclufively," there can remain no doubt; whereas, if the words had fimply been, "from the firft of March until the "fifteenth of April," it might be difputed whether those two days, mentioned as the initial and final terms of the truce, were com

Dd4

prehended

$245.

Effects of a truce; what

prehended in the treaty, or not: and indeed authors are divided on this question. As to the former of those two days, it seems beyond all question to be comprised in the truce: for if it be agreed that there fhall be a truce from the first of March, this naturally means that hoftilities fhall ceafe on the first of March. As to the latter day, there is fomething more of doubt,-the expreffion "until" feeming to feparate it from the time of the armistice. However, as we often fay "until fuch a day " inclufively," the word "until" is not necessarily exclufive, ac cording to the genius of the language. And as a truce, which fpares the effufion of human blood, is no doubt a thing of a favourable nature, perhaps the safest way is to include in it the very day of the term. Circumftances may also help to afcertain the meaning: but it is very wrong not to remove all ambiguity, when it may be done by the addition of a fingle word.

In national compacts, the word "day" is to be understood of a natural day, fince it is in this meaning that a day is the common measure of time among nations. The computation by civil days owes its origin to the civil law of each nation, and varies in different countries. The natural day begins at fun-rife, and lafts twenty-four hours, or one diurnal revolution of the fun. If, therefore, a truce of a hundred days be agreed on, to begin on the firft of March, the truce begins at fun-rife on the firit of March, and is to continue a hundred days of twentyfour hours each. But as the fun does not rise at the fame hour throughout the whole year, the parties, in order to avoid an overftrained nicety, and a degree of chicane unbecoming that candour which fhould prevail in conventions of this kind, ought certainly to understand that the truce expires, as it began, at the rifing of the fun. The term of a day is meant from one fun to the other, without quibbling or difputing about the difference of a few minutes in the time of his rifing. He who, having made a truce for a hundred days, beginning on the twenty-firft of June, when the fun rifes about four o'clock, fhould, on the day the truce is to end, take up arms at the fame hour, and surprise his enemy before fun-rife, would certainly be confidered as guilty of á mean and perfidious chicanery.

If no term has been specified for the commencement of the truce, the contracting parties, being bound by it immediately on its conclufion (§ 239), ought to have it publifhed without delay, in order that it may be punctually obferved: for it becomes binding on the fubjects only from the time when it is duly publifhed with respect to them (ibid.); and it begins to take effect only from the moment of the first publication, unless otherwise fettled by the terms of the agreement.

The general effect of a truce is that every act of hoftility shall abfolutely ceafe. And in order to obviate all difpute refpecting is allowed, the acts which may be termed hoftile, the general rule is, that, or not, du- during the truce, each party may, within his own territories, ring its con and in the places where he is mafter, do whatever he would have

tinuance.

a right

a right to do in time of profound peace. Thus a truce does ift Rule. not deprive a fovereign of the liberty of levying foldiers, affem- Each party may do at bling an army in his own dominions, marching troops within home what the country, and even calling in auxiliaries, or repairing the for- they have a tifications of a town which is not actually befieged. As he has right to do a right to do all these things in time of peace, the truce does not peace. tie up his hands. Can it be fuppofed that by fuch a compact he meant to debar himself from executing things which the continuation of hoftilities could not prevent him from doing?

in time of

§ 246. But to take advantage of the ceffation of arms in order to exe- 2d. Rule. cute without danger certain things which are prejudicial to the Not to take advantage enemy, and which could not have been fafely undertaken during of the trace the continuance of hoftilities, is circumventing and deceiving in doing the enemy with whom the compact has been made: it is a breach what hoftiof the truce. By this fecond general rule we may folve several particular cafes.

lities would

vented.

breaches;

The truce concluded between the governor of a town and the § 247general befieging it, deprives both of the liberty of continuing For intheir works. With regard to the latter, this is manifeft,-hisance, continuing the works being acts of hoftility. But neither can the governor, on works of a his part, avail himself of the armiftice, for the purpose of re- fiege, or repairing the breaches or erecting new fortifications. The artillery pairing of the befiegers does not allow him to carry on fuch works with impunity during the continuance of hoftilities: it would therefore be detrimental to them that he fhould employ the truce in this manner; and they are under no obligation of fubmitting to be fo far impofed upon: they will with good reafon confider fuch an attempt as an infraction of the truce. But the suspenfion of arms does not hinder the governor from continuing within his town fuch works as were not liable to be impeded by the attacks or fire of the enemy. At the laft fiege of Tournay, after the furrender of the town, an armistice was agreed on; during the continuance of which, the governor permitted the French to make all the neceffary preparations for attacking the ciadel, to carry on their works, and erect their batteries,-because the governor, on his part, was in the mean time busily employed within, in clearing away the rubbish with which the blowing up of a magazine had filled the citadel, and was erect. ing batteries on the ramparts. But all this he might have performed with little or no danger, even if the operations of the fiege had commenced; whereas the French could not have carried on their works with fuch expedition, or made their approaches and erected their batteries, without lofing a great number of men. There was therefore no equality in the cafe; and, on that footing, the truce was entirely in favour of the beGegers: and, in confequence of it, the capture of the citadel took place fooner, probably, by a fortnight, than it would otherwife have happened.

§ 248. If the truce be concluded either for the purpose of fettling the or introterms of the capitulation or of waiting for the orders of the cours.

respective

ducing fuc

249. Diftinction

of a parti

refpective fovereigns, the befieged governor cannot make use of it as a convenient opportunity to introduce fuccours or ammunition into the town: for this would be taking an undue advantage of the armistice for the purpofe of deceiving the enemy;a conduct which is inconfiftent with candour and honefty. The fpirit of fuch a compact evidently imports that all things fhall remain as they were at the moment of its conclufion.

But this is not to be extended to a fufpenfion of arms agreed on for fome particular circumftance, as, for inftance, burying cular cafe, the dead. In this cafe, the truce is to be interpreted with a view to its immediate object. Accordingly the firing ceases, either in all quarters, or only in a fingle point of attack, purfuant to agreement, that each party may freely carry off their dead and during this intermiflion of the cannonade, it is not allowable to carry on any works which the firing would have impeded. This would be taking an undue advantage of the armistice, and confequently a violation of it. But it is perfectly juftifiable in the governor, during fuch a ceffation of hoftilities, filently to introduce a reinforcement in fome quarter remote from the point of attack. If the befieger, lulled by fuch an armistice, abates in his vigilance, he must abide the confequences. The armistice of itself does not facilitate the entrance of that reinforcement.

250.

Ret eat of

ties.

Likewife if an army in a bad position proposes and concludes an armiftice for the purpose of burying the dead after a battle, it an army during 3 cannot pretend, during the fufpenfion of arms, to extricate itself fufpenfion from its difadvantageous fituation, and to march off unmolested, of hoftili in fight of the enemy. This would be availing itself of the compact in order to effect a purpofe which it could not otherwife have accomplished. This would be laying a fnare: and conventions must not be converted into fnares. The enemy, therefore, may justly obftruct the motions of that army the moment it attempts to quit its ftation: but if it filently files off in the reaf, and thus reaches a fafer pofition, it will not be guilty of a breach of faith; fince nothing more is implied by a fufpenfion of arms for the burial of the dead, than that neither party shall attack the other whilft this office of humanity is performing. The enemy, therefore, can only blame his own remifsnefs:-he ought to have ftipulated, that, during the ceffation of hoftilities, neither party fhould quit their poft: or it was his bufinefs vigilantly to watch the motions of the hoftile army: and on perceiving their defign, he was at liberty to oppofe it. It is a very juftifiable ftratagem to propofe a ceffation of arms for a particular object, with a view of Julling the enemy's vigilance, and covering a delign of retreating.

But if the truce be not made for any particular object alone, we cannot honourably avail ourselves of it in order to gain an advantage, as, for instance, to fecure an important poft, or to advance into the enemy's country, The latter ftep would indeed be a violation of the truce; for every advance into the enemy's country is an act of hoftility.

Now,