them then would be to abuse the sacred faith upon which BOOK II. they are delivered. The perfidious Christiern II., king of CHAP. XVI. Denmark, being delayed by contrary winds before Stockholm, and, together with his whole fleet, ready to perish with famine, made proposals of peace: whereupon, the administrator, Steno, imprudently trusting to his promises, furnished the Danes with provisions, and even gave Gustavus and six other noblemen as hostages for the safety of the king, who pretended to have a desire to come on shore: but, with the first fair wind, Christiern weighed anchor, and carried off the hostages; thus repaying the generosity of his enemy by an infamous act of treachery.* tained on any other Hostages being delivered on the faith of treaties, and he ? 249. Whewho receives them promising to restore them as soon as the ther they promise of which they are the surety shall be fulfilled,-such may be deengagements ought to be literally accomplished: and the hostages should be really and faithfully restored to their for- account. mer condition, as soon as the accomplishment of the promise has disengaged them. It is, therefore, not allowable to detain them for any other cause; and I am astonished to find [240] that some learned writers teach a contrary doctrine.† They ground their opinion upon the principle which authorizes a sovereign to seize and detain the subjects of another state in order to compel their rulers to do him justice. The principle is true; but the application is not just. These authors seemed to have overlooked the circumstance, that, were it not for the faith of the treaty by virtue of which the hostage has been delivered, he would not be in the power of that sovereign, nor exposed to be so easily seized; and that the faith of such a treaty does not allow the sovereign to make any other use of his hostage than that for which he was intended, or to take advantage of his detention beyond what has been expressly stipulated. The hostage is delivered for the security of a promise, and for that alone. As soon, therefore, as the promise 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 hostage, but detained as a pledge for the security of any other pretension, would be taking advantage of his situation as a hostage, in evident violation of the spirit and even the letter of the convention, according to which, as soon as the promise is accomplished, the hostage is to be restored to himself and his country, and reinstated in his pristine rank, as if he had never been a hostage. Without a rigid adherence to this principle, it would no longer be safe to give hostages, since princes might, on every occasion, easily devise some pretext for detaining them. Albert the Wise, duke of Austria, making war against the city of Zurich, History of the Revolutions of Sweden. † Grotius, lib. iii. cap. xx. 2 55.-Wolfius, Jus Gent. 2 503. BOOK II. CHAP. XVI. tained for their own actions. in the year 1351, the two parties referred the decision of their disputes to arbitrators, and Zurich gave hostages. The arbitrators passed an unjust sentence, dictated by partiality. Zurich, nevertheless, after having made a well-grounded complaint on the subject, determined to submit to their decision. But the duke formed new pretensions, and detained the hostages, contrary to the faith of the compromise, and in evident contempt of the law of nations. * ? 250. They But a hostage may be detained for his own actions, for may be de- crimes committed, or debts contracted in the country while he is in hostage there. This is no violation of the faith of the treaty. In order to be sure of recovering his liberty, according to the terms of the treaty, the hostage must 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. 2 251. Of It is the party who gives the hostages that is to provide the support for their support; for, it is by his order, and for his service, of hostages. that they are in hostage. He who receives them for his own security is not bound to defray the expense of their subsistence, but simply that of their custody, if he thinks proper to [241] set a guard over them. ? 252. A The sovereign may dispose of his subjects for the service subject can- of the state; he may, therefore, give them also as hostages; not refuse to and the person who is nominated for that purpose is bound be a hostage. to obey, as he is, on every other occasion, when commanded for the service of his country. But, as the expenses ought to be borne equally by the citizens, the hostage is entitled to be defrayed and indemnified at the public charge. It is, evidently, a subject alone who can be given as a hostage against his will. With a vassal, the case is otherwise. What he owes to the sovereign, is determined by the conditions of his fief; and he is bound to nothing more. Accordingly, it is a decided point that a vassal cannot be constrained to go as a hostage, unless he be at the same time a subject. Whoever has a power to make treaties or conventions, may give and receive hostages. For this reason, not only the sovereign, 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 eommission. The governor of a town, and the besieging general, give and receive hostages for the security of the capitulation whoever is under their command is bound to obey, if he is nominated for that purpose. 3 253. Rank Hostages ought naturally to be persons of consequence, of the host- since they are required as a security. Persons of mean condition would furnish but a feeble security, unless they were given in great numbers. Care is commonly taken to settle ages. Tschudi, vol. i. p. 421. BOOK II. the rank of the hostages that are to be delivered; and the violation of a compact in this particular is a flagrant derelic- CHAP. XVI. tion of good faith and honour. It was a shameful act of perfidy in La Trimouille to give the Swiss only hostages from the dregs of the people, instead of four of the principal citizens of Dijon, as had been stipulated in the famous treaty we mentioned above (§ 212). Sometimes the principal persons of the state, and even princes, are given in hostage. Francis I. gave his own sons as security for the treaty of Madrid. make their The sovereign who gives hostages ought to act ingenuously 254. They in the affair, giving them in reality as pledges of his word, ought not to and, consequently, with the intention that they should be kept escape. till the entire accomplishment of his promise. He cannot, therefore, approve of their making their escape: and, if they take such a step, so far from harbouring them, he is bound to send them back. The hostage, on his side, conformably to the presumed intention of his sovereign, ought faithfully to remain with him to whom he is delivered, without endeavouring to escape. Cloelia made her escape from the hands of Porsenna, to whom she had been delivered as a hostage; but the Romans sent her back, that they might not incur the guilt of violating the treaty.* [242] If the hostage happens to die, he who has given him is not 255. Wheobliged to replace him, unless this was made a part of the ther a hostagreement. The hostage was a security required of him: age who that security is lost without any fault on his side; and there replaced. exists no reason why he should be obliged to give another. dies is to be takes the place of a hostage. If any one substitutes himself for a time in the place of a 3 256. Of hostage, and the hostage happens in the interim to die a him who natural death, the substitute is free: for, in this case, things are to be replaced in the same situation in which they would have been if the hostage had not been permitted to absent himself and substitute another in his stead: and, for the same reason, the hostage 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 hostage had been exchanged for another: the former would be absolutely free from all engagement; and the person who had taken his place would alone be bound. the crown. If a prince who has been given in hostage succeeds to the ? 257. A crown, he ought to be released on the delivery of another hostage sucsufficient hostage, or a number of others, who shall together ceeding to constitute an aggregate security 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 should be a hostage. The detention of the king's person by a foreign power is a thing of too interesting a nature to admit a presumption that the state had intended to expose * Et Romani pignus pacis ex foedere restituerunt. Tit. Liv. lib. ii. cap. xiii. 242 CHAP. XVI. SECURITIES GIVEN FOR THE OBSERVANCE OF TREATIES. BOOK II. herself to the consequences of such an event. Good faith ought to preside in all conventions; and the manifest or justly presumed intention of the contracting parties ought to be adhered to. If Francis I. had died after having given his sons as hostages, certainly the dauphin should have been released: for, he had been delivered only with a view of restoring the king to his kingdom; and, if the emperor had detained him, that view would have been frustrated, since the king of France would still have been a captive. It is evident, that, in this reasoning, I proceed on the supposition that no violation of the treaty has taken place on the part of the state which has given a prince in hostage. In case that state had broken its promise, advantage might reasonably be taken of an event which rendered the hostage still more valuable, and his release the more necessary. ? 258. The liability of the hostage ends with The liability of a hostage, as that of a city or a country, expires with the treaty which it was intended to secure (§§ 243, 248): and consequently, if the treaty is personal, the treaty. the hostage is free at the moment when one of the contracting powers happens to die. 8259. The an injury hostages. The sovereign who breaks his word after having given hostviolation of ages, does an injury, not only to the other contracting power, the treaty is but also to the hostages themselves. For, though subjects done to the are indeed bound to obey their sovereign who gives them in hostage, that sovereign has not a right wantonly to sacrifice [243] their liberty, and expose their lives to danger without just reasons. Delivered up as a security for their sovereign's promise, not for the purpose of suffering any harm,—if he entails misfortune on them by violating his faith, he covers himself with double infamy. Pawns and mortgages serve as securities for what is due; and their acquisition indemnifies the party to whom the other fails in his engagements. Hostages are rather pledges of the faith of him who gives them; and it is supposed that he would abhor the idea of sacrificing innocent persons. But, if particular conjunctures oblige a sovereign to abandon the hostages,-if, for example, the party who has received them violates his engagements in the first instance, and, in consequence of his violation, the treaty can no longer be accomplished without exposing the state to danger, no measure should be left untried for the delivery of those unfortunate hostages; and the state cannot refuse to compensate them for their sufferings, and to make them amends, either in their own persons, or in those of their relatives. 2260. The hostage when he At the moment when the sovereign who has given the fate of the hostage has violated his faith, the latter ceases to retain the character of a hostage, and becomes a prisoner to the party who had received him, and who has now a right to detain him given him in in perpetual captivity. But it becomes a generous prince to fails in his refrain from an exertion of his rights at the expense of an who has BOOK II. innocent individual. And as the hostage is no longer bound by any tie to his own sovereign who has perfidiously aban- CHAP. XVI. doned him,-if he chooses to transfer his allegiance to the engageprince who is now the arbiter of his fate, the latter may ac- ments. quire a useful subject, instead of a wretched prisoner, the troublesome object of his commiseration. Or he may liberate and dismiss him, on settling with him the conditions. founded on custom. We have already observed that the life of a hostage can-3 261. of not be lawfully taken away on account of the perfidy of the the right party who has delivered him. The custom of nations, the most constant practice, cannot justify such an instance of barbarous cruelty, repugnant to the law of nature. Even at a time when that dreadful custom was but too much authorized, the great Scipio publicly declared that he would not suffer his vengeance to fall on innocent hostages, but on the persons themselves who had incurred the guilt of perfidy, and that he was incapable of punishing any but armed enemies.* The emperor Julian made the same declaration.† All that such a custom can produce, is impunity among the nations who practice it. Whoever is guilty of it cannot complain that another is so too: but every nation may and ought to declare that she considers the action as a barbarity injurious to human nature. CHAP. XVII. OF THE INTERPRETATION OF TREATIES. (130) [ 244 ] CHAP. XVII. IF the ideas of men were always distinct and perfectly? 262. Nedeterminate, if, for the expression of those ideas, they had cessity of none but proper words, no terms but such as were clear, pre- establishing cise, and susceptible only of one sense, there would never terpretation. Tit. Liv. lib. xxviii. cap. xxxiv. † See Grotius, lib. iii. cap. xi. ? 18, not. 2. (130) See further as to the construction of treaties, post B. IV. Ch. III. 232, post, 443. This chapter is highly important to be studied, in relation to questions respecting the construction of private contracts, statutes, &c., as well as of treaties, as many of the rules are capable of general application. Questions respecting the construction, infraction, or observance of treaties, are not in general directly agitated in any municipal court of law or equity of Great Britain, at least as regards the adjustment of any claims between the respective states who were parties to the same. (Ephinstone v. Bedreechund, rules of in |
