Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
George and Donald Campbell v. The Earl of Argyle
Date: 20 November 1672
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Mr. George and Donald Campbells, sons to George Campbell, Sheriff of Argyle, as executors to their brother, Mr. Archibald, who had right from his father to the bond undermentioned, pursued the Earl of Argyle for payment of the sum of 8000 merks, contained in a bond granted by him to the said George. The defence was, that he offered him to prove by George Campbell, the cedent's oath, that the bond was granted blank in the creditor's name to M'Naughtan, and that the same was granted ob turpem et inhonestam causam, and so was null, and noways obligatory against the Earl, (and upon which reason there was reduction of the said bond depending;) in so far as the Earl and M'Naughtan having been employed in. his Majesty's service against the late usurpers in 1653 and 1654, in the hills, and the usurpers having taken Sir Arthur Forbes, an officer of chief quality prisoner; as also M'Naughtan and his Majesty's forces having taken Colonel Bryan prisoner; the Earl, upon the account of furthering his Majesty's service, and for personal respects to Sir Arthur, did urge M'Naughtan to exchange Bryan, his prisoner, with the said Sir Arthur: which M'Naughtan most unjustly refused, except the Earl would grant this bond; which the Earl, finding Sir Arthur's release otherwise impossible, out of zeal to his Majesty's interest, and yielding to the present necessity, did at length condescend to; and that the same was most unjustly exacted and extorted by M'Naughtan, seeing, by the rules of military law and honour, he ought not to have refused the exchange gratis: and this benefit he made of his said prisoner was turpis quæstus et inhonesta nundinatio; (et omne turpe lucrum is extorquendum;) seeing the ransom of prisoners taken in war belongs to his Majesty, or the general by whose authority the war is managed, and not to private persons, takers, such as M'Naughtan was: and therefore the bond, as granted ob turpem et injustam causam, as strongly and pregnantly qualified as any can be founded in law, is null, and should be reduced.
Answered 1mo, This reason cannot meet the executors, who are not obliged to depone thereon, seeing their oath will not infer their exoneration. 2do, The reason of reduction is noways relevant, because Colonel Bryan did jure belli belong to M'Naughtan, seeing capti et capta fiunt cupientium; and, therefore, might dispose upon him as he pleased; and was not bound in duty, nor at the Earl's desire, either to release him, or exchange him, but make the best use of his prisoner he could, and apply the ransom (called in law lytrum or prætium redemptionis,) to his own particular use.
Replied,—That the old Roman law Instit. de Rerum divisione, et acquir. rerum dominio, § 17, making capta in bello, to become capientium, is of a long time fallen in desuetude: so that now, soldiers do not, by the received custom and manners of most nations, any more acquire the things taken to themselves, but take for the prince, state, or commonwealth that employs them, at least for the general person, or those having chief command under them: so that it was most unwarrantable in M'Naughtan to make advantage of that prisoner, which by the law of war was not his, but belonged to his Majesty, who, or his commissioners, had the sole power of releasing, discharging, or ransoming him; especially considering that he was a staff officer, who, by the concessions of all authors, when made prisoners, do ever belong to the prince or state by whose authority the war was carried on, and never to inferior officers.—See Vinnius ad illum parag.: item ad paragraphum, Servi, ante 3 Instit. de jure personarum, numeris 4 et 5.
Duplied,—They confess, in a public, stated, and solemn war, where soldiers are stipendiary and paid by the Prince, there may be some ground to think the prisoners and their ransom et res aliæ bello captæ should cede to the fisk or employers; in which case general and supreme officers upon the field ought only to order and dispose the prisoners as they think fit, being taken in ministerio publico: but where the war is deserted by the general officers, and they are no more in the field, but the war and private acts of hostility are continued by some out of zeal to his Majesty and country's decaying interest, and hatred against the usurpers, without all pay, but maintained on their own private fortunes, (as was M'Naughtan's case here,) the præda, whatever it be, as præmium laboris must belong to them quorum, meruere sudores; and that most justly: for why should that be acquired to the public treasury, where they contributed nothing to the maintenance of the said war and subitaneous excursions? and which is the case of privateers, and which we signify in these terms, of “no purchase, no pay.” And therefore the general officers, Glencairne and Midleton, being then gone, he might very well sell his prisoner of war for ransom, to compense his own pains, reimburse his charges, and pay his soldiers under his command; especially considering that the Earl who transacted with him had no superior command over him to make him quit his prisoner, but upon his own terms; as also hath homologated the said deed, by granting a new bond for the same about two years after, viz. in 1656; like as he gave up this bond among the list of his debt, and got a locality in his father's estate in contemplation thereof, and which he hath possessed these eight years.
Both parties were very strong in their citations out of Grotius. For the Earl he was cited, lib. 3, de Jure Belli et Pacis, cap. 6to, de jure acquirendi bello capta, Nis 8, 9, 10, et seq.; ubi he expressly asserts, Qui in militando vel quavis alia re operam suam addixerunt aliis, statim quod acceperunt acquirunt illis quibus operam navant; et qui capit per alios æque capit quam qui per se. Qui tanquam minister capit, non sibi sed ei sub cujus auspiciis bellum geritur, acquirit; quia ibi (ut habet, No. 14,) singuli reipublicæ personam sustinent, et proinde respublica, rex, seu populus per eos ut possessionem ita et dominium rerum captarum nanciscitur, et in quos vult transfert. Likeas, eodem lib. 3, cap. 7, No. ult.; he is most positive that captives may be detained, even amongst Christians, till they pay their ransom, and that the same belongs to the taker, unless the prisoners be personæ egregiæ dignitatis, (which by the general consent of nations, is expounded to be all staff officers;) in has enim reipublicæ aut ejus capiti jus dant plærarumque gentium mores. As also, eodem lib. 3tio, cap. 22, de fide minorum potestatum No. 9, ubi habet, Homines imperia, agros bello quæsitos concedere ducum non est, sed in tales populi vel principis est judicium sive arbitrium; so that the taker cannot, without leave of his general, either free or otherwise dispose upon his prisoner: and which is most just; seeing the releasing or detaining of some prisoners may be of great moment to the whole fortune of the war. They also cited Bartolus et Baldus, ad l. Nam et Servius, 21 D. de negotiis gestis; but Bartolus hath nothing there to this purpose.
The pursuers seemed to be very clearly founded in the same Grotius his opinion, lib. 3, cap. 6, Nis 23 et 24, where he avers, that by a tacit custom it hath every where prevailed, ut sua faciant quæcumque capiant aut socii aut subditi, qui sine stipendio, et suo sumptu, suoque periculo, bellum gerunt; imo, quando pro stipendio militant, nisi sit tale quod operæ; respondeat; which seems to confirm all they contend for.
The Lords declared they would hear it in their own presence. And though it be a very intricate case, yet, all circumstances being well pondered, I think the Earl should lose the cause.
The usual ransom of soldiers or inferior officers amongst the Dutch, is a month's pay of the prisoner; so William Aglonby, in his Present state of Holland, page 122, lib. 2, cap. 16. A. G. Costanus thinks it may be the third part of the captive's goods; arg. p. 2, institutionibus, de successione libertorum; but the parallel is farfetched. See him questione 2. Vinnius, ubi supra, says, Nunc inter milites ut plurimum menstruo stipendio definitur. See Joannes Voet, de jure militari, cap. 5, page 276.
