The Rights of War and Peace: In Three Volumes

Chapter XX. Of the publick Faith by which War is concluded; where also of Treaties of Peace, of Lots, of Set Combats, of Arbitration, of Surrenders, of Hostages, and of Pawns.

1551 u c h a p t e r x x u Concerning the publick Faith whereby War is finished; of Treaties of Peace, Lots, set Combats, Arbitrations, Surrenders, Hostages, and Pledges. I. All Agreements between Enemies depend upon Faith, eitherexpressed or implied. Faith expressed, is either publick or private. Publick is either of the supreme or subordinate Powers. That of the supreme Powers, either puts an end to the War or is of Force during its Continuance. Among those Things that conclude a War, some are looked on as Principals , some as Accessories. The Principals are those very Things that finish the War, either by themselves as a Treaty of Peace, or by Consent that it be referred to another Thing, as the Decision of Lot, the Success of a Battle, the Judgment of an Arbitrator; whereof the first is purely casual, but in the two others the Chance is moderated by the Strength of the Mind or of the Body of the Combatants, and by the Power given to the Judge. II. They who have Power to begin a War, have likewise Power to enter upon a Treaty to finish it; for every Man is the best Manager of his own Affairs; a whence it follows, that in a War on both Sides publick, it is wholly in their Power who enjoy thesupremeAuthority,whichinaGovernment truly monarchical 1 belongs to the King, unless there be any Thing that hinders him from exercising his Right. II. (1) In Statu vere regio, says the Author. That is to say, if the King be absolute, I. The Division of Faith between Enemies , in order to what follows. II. The Power of making Peace is in the King, if the Government be Regal. a B. 2. Ch. 15.§ 3. 1552 chapter xx III. a For if a Prince be not out of his Minority, (which in some Kingdoms is determined by Law, in others by probable Conjectures) or be not in his true Senses, he is not capable of making Peace. The same is to be said 1 of a King that is a Prisoner, if his Kingdom had its first Rise 2 from the Consent of the People; for it is not to be supposed, that the People would confer the Sovereignty upon one, with a Power even to exercise it at a Time when he is not Master of his own Person. Therefore in such a Case not the full Sovereignty, but the Exercise of it, and as it were the Guardianship is in the People, orhim whomtheyshalldelegate. But of those Things which are privately his own, whatsoever a King, tho’ a Prisoner, shall Contract, will be valid, according to the Principles which we shall b establish concerning private Agreements. But what if a Prince be an Exile, 3 is it in his Power to make Peace? Yes 4 certainly, if it appear that he has no Dependence upon any Person. Otherwise his Condition would be little different from that of a Prisoner, for there are and not obliged by the fundamental Laws of the Kingdom, to consult the People, or the Nobles of the State upon making War or Peace. III. (1) See Guicciardin, Hist. Lib. XVI. and Lib. XVIII. where he treats several Times of this Case. Grotius. 2. So that, according to our Author, when the Kingdom is patrimonial, the King, tho’ a Prisoner, can make Peace, in the same Manner as he may treat validly in regard to his private Estates, tho’ he holds the Kingdom only by an usufructuary Title. Our Author supposes without doubt, that the King, who is a Prisoner, is not become a Slave by the Right of War, or that he, who has taken him, either expressly or tacitly has renounced his Right. The question is otherwise useless, because Estates are acquired with the Person, according to what has been said above, Chap. VII. of this Book, § 4. and Chap. VIII. § 1. Num. 3. 3. What Lucan says may be applied here, that during the Time the Dictator Camillus was at Veii, Rome also was there, tho’ the Gauls were Masters of the City: ——— Tarpeja sede perustâ Gallorum facibus, Veiosque habitante Camillo Illic Roma fuit. ——— Pharsal. (Lib. V. Ver. 27. & seq.) See Chassanaeus, De Gloria Mundi, Part V. Consider. IX. Grotius. 4. Our Author supposes here again without doubt, that the Kinghasbeenunjustly expelled his Dominions. Otherwise, as he would be fallen from the Sovereignty, he would be equally incapable of making Peace, which...