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THE LAWS OF WAR, AFFECTING COMMERCE AND SHIPPING
by
H. BYERLEY THOMSON, ESQ., B.A.
Barrister-at-Law, of Jesus College, Cambridge, and the Inner Temple
A New Edition, Enlarged, With An Introduction And Index
1854
PREFACE TO THE SECOND EDITION.
The success which attended the publication of the First Edition of this Treatise, on "The Laws of War, affecting Commerce and Shipping," has confirmed the author's opinion of the utility of such a work; and its hearty acceptance by the mercantile world has induced him to add largely and materially to this edition. The general plan of the former work has not been departed from in the first portion of the present; and although a great number of fresh and popular topics have been here touched upon, the author has endeavoured to preserve (as far as was consistent with accuracy), that concise and popular character which he believes in no small degree contributed to the favourable reception of the first edition.
An Introduction has also been added, discussing the origin of the Laws of War generally, and the utility of the work has been enhanced by an Index for facilitating reference.
In a Second Part, which will shortly appear, the Author proposes to treat of the Laws of War relating to the Army, Navy, and the Militia, as well as the administration of the bodies governing those various sections of the war force of the country.
H.B.T.
8, SERJEANT'S INN, TEMPLE,
APRIL 15, 1854.
CONTENTS.
INTRODUCTION
CHAPTER I.
COMMENCEMENT OF WAR.
SECTION I. The Immediate Effects of War
SECTION II. On Enemies and Hostile Property
CHAPTER II.
SECTION I. Actual War. Its Effects
SECTION II. Prizes and Privateers
SECTION III. Licences
SECTION IV. Ransom, Recaptures, and Salvage
CHAPTER III.
SECTION I. Neutrality
SECTION II. Contraband of War
SECTION III. Blockades. Right of Search. Convoys
SECTION IV. Armed Neutralities
APPENDIX TO PART I.
NOTE A. The Law of Reprisals
NOTE B. War Bill Act
NOTE C. Rule of 1756
NOTE D. Articles that have been declared Contraband at various times
NOTE E. The Late Declarations
INTRODUCTION TO PART I.
It would be superfluous to trouble my readers, in a concise practical treatise, with any theoretical discussion on the origin of the Law of Nations, had not questions of late been often asked, respecting the means of accommodating rules decided nearly half-a-century ago, to those larger views of international duty and universal humanity, that have been the natural result of a long Peace, and general progress.
To commence with the question, Who is the international legislator? it must be observed, that there is no general body that can legislate on this subject; no parliament of nations that can discuss and alter the law already defined. The Maritime Tribunals of maritime states always have been, and still are, almost the sole interpreters and mouthpieces of the International Law. Attempts that have been made by our own parliaments, by individual sovereigns, and even by congressional assemblies of the ministers of European powers, to create new universal laws, have been declared by these courts to be invalid, and of no authority. And though it is distinctly laid down, that the Law of Nations forms a part of the Common Law of England, yet it is not subject to change by Act of Parliament, as other portions of the Common Law are; except so far as Parliament can change the form, constitution, and persons of the courts that declare the law.
Lord Stowell says
"No British Act of Parliament, nor any commission founded upon it, can affect the rights or interests of foreigners, unless they are founded upon principles, and impose regulations, that are consistent with the Law of Nations."
And in another place—
"Much stress has been laid upon the solemn declaration of the eminent persons (the ministers of the European powers), assembled in Congress (at Vienna). Great as the reverence due to such authorities may be, they cannot, I think, be admitted to have the force of over-ruling the established course of the general Law of Nations."
It is to the Maritime Courts, then, of this and other countries, that the hopes of civilization must look for improvement and advance in the canons of international intercourse during the unhappy time of war. The manner, and the feeling in which they are to pronounce those canons cannot be more finely enunciated than in the words of Lord Stowell himself.
"I consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the Law of Nations holds out, without distinction, to independent states, some happening to be neutral, and some belligerent.
"The seat of judicial authority is indeed locally here in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question, if sitting at Stockholm; to assert no pretensions on the part of Great Britain, which he would not allow to Sweden in the same circumstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain, in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as UNIVERSAL LAW upon the question."
When an Admiralty Judge investigates the law in this impartial spirit, he occupies the grand position of being in some respects the director of the deeds of nations; but with equal certainty does the taint of an unjust bias poison all his authority; his judgments are powerful then only for evil; they bind no one beyond the country in which he sits, and may become the motive and origin of reprisal and attack upon his native land.
As the authority of the international judge depends on his integrity, so also does the universal law arise from, and remain supported by, the true principles of right and justice; in other words, by the fundamental distinction between right and wrong. A statute, a despotic prerogative, and an established principle of common law, rest upon different sanctions. They may be the causes of the greatest injustice, may sow the seeds of national ruin, and yet may even require revolutions for their reformation; but any one of the laws of nations preserves its vitality, only with the essential truth of its principles; a change in the feeling of mankind on the great question of real justice, destroys it, and it simply remains an historical record of departed opinion, or a point from which to date an advance or retreat in the career of the human mind.
It is for this reason that International Law has been so differently defined by writers at various periods.
The Law of Nations is founded, I have said, on the general principles of right and justice, on the broad fundamental distinctions between right and wrong, or as Montesquieu defines it, "on the principle that nations ought in time of peace to do each as much good, and in time of war as little harm as possible." These are the principles from which any rule must be shown to spring, before it can be said to be a rule for international guidance. But what are the principles of right and wrong? These are not left to the individual reason of the interpreter of the law for the time being, but are to be decided by the public opinion of the civilized world, as it stands at the time when the case arises.
It may immediately be asked—How is that public opinion to be ascertained? The answer is—By ascertaining the differences in opinion between the present and the past. For this purpose it must be observed, that the views of a past age are easily ascertainable, in matters of law, from theoretical writings, history, and judicial decisions; and these views may be reduced to definition. Modern universal intelligence will either agree or disagree in these views. In the mass of instances it will agree, as progress on such points is at all times slow; and not only will the points of disagreement be few, but they will be salient, striking, and generally of popular notoriety. Present, universal, or international opinion, has therefore two portions. 1. That in which it accords with the views of a past generation, that has become historical. 2. That in which it differs from, or contradicts those views.
In the first instance, then, we are to ascertain what were the principles of right and justice, from any materials handed down to us; and if those principles agree with, or support the practical rules recorded by the same, or similar sources of information, such are to be accepted as belonging to the code of the Laws of Nations, as far as those principles are uncontradicted by modern opinion.
In the second instance, those differences which may either overrule, add to, or complete the public opinion of a past age, are to be ascertained, (by those in whose hands such decisions rest,) by looking to the wish of nations on these points; and this wish may be exhibited in various ways; either by a universal abandonment of a given law, in its non-execution by any nation whatever, for a length of time; by numerous treaties, to obtain by convention an improvement not yet declared by international tribunals; or by extending to the relations and duties of nations, the improvements in the general principles of right and justice, that are at the time being applied to the concerns of private individuals.
The judges of such matters are not to ignore what is going on around them; all necessary knowledge is to be brought into court to discover what is the universal feeling of nations in respect of right and wrong, at the time they decide, and if they see a departure from the past sense of right and wrong, to make the modern, and not the ancient, the fountain of modern law; thence deducing the modern rules.
Because a precept cannot be found to be settled by the consent or practice of nations at one time, it is not to be concluded that it cannot be incorporated into the public code of nations, at some subsequent period. Nor is it to be admitted, that no precept belongs to the law of nations which is not universally recognised as such, by all civilized communities, or even by those constituting what may be called the Christian states of Europe. Some doctrines, which we, as well as the United States, admit to belong to the Law of Nations, are comparatively of recent origin and application, and even at this period have received no public or general sanction in other nations; and yet, inasmuch as they are founded on a just view of the duties and rights of nations, according to a modern universal sense of what is just, they are enforced here as ascertained laws.[1]
By a similar train of reasoning, not only may the international tribunals of England enunciate new rules of law, as universal law, if founded and fairly deduced from ascertained modern, public, and international opinion; but they may refuse to alter settled rules, however much opposed by other nations, provided those rules are still deducible from that origin.
Generally, every doctrine fairly deduced, by correct reasoning, from the rights and duties of nations, and the nature of moral obligation, may be said to exist in the Law of Nations. Those rights, duties, and that moral obligation, are to be ascertained from the enunciation of them in past times, unless they have been relaxed, waived, or altered by universal modern opinion.
We may regard, then, the Law of Nations to be a system of political ethics; not reduced to a written code, but to be sought for, (not founded,) in the elementary writings of publicists, judicial precedents, and general usage and practice; but continually open to change and improvement; as the views of men in general, change or improve, with regard to the questions—What is right? What is just?
Now to apply the above to one example.
Undoubtedly up to the present time the system of granting Letters of Marque to the adventurers of a power friendly to the enemy, has received the sanction of the world. These buccaneering adventurers have, under the laws of war, when taken, claimed and been allowed the rights of prisoners of war; have exercised all the privileges of regular privateers, and cast little or no responsibility on the countries they issued from, who still claimed to be entitled to the full position of neutral powers. Yet these unprincipled men differed from pirates in one respect only—that their infamous warfare was waged on one unhappy nation alone, instead of against the power of mankind. Uninfluenced by national feelings, their sole object was the plunder of the honest trader, and the means to that end—murder. Are there any modern principles of right and justice by which such persons are still to claim consideration? That there were such principles formerly, when the whole system of war was barbaric and unmerciful, cannot be doubted, unless such enemies were to be condemned when others equally bad were to be excused; but those reasons have now disappeared. Universal opinion is against these principles; numerous treaties have condemned the practice; the municipal laws of several states have made it punishable in their own subjects; America has even attempted, in two cases, to bring it in as piracy; and the highest authorities have pronounced it a crime.
Are not then the foundations of the laws that governed this case changed? It may be going too far to declare it piracy by the Law of Nations, but is it asking too much, in calling upon our maritime tribunals to proclaim the practice contrary to the Law of Nations; to deprive these privateers of the protection of neutrality, when in their native waters, and to subject the nation that permits them to fit out in, or issue from their ports, to the danger of reprisals, from the offended belligerents.
This I suggest as an example of the application of the principles of right and wrong, as at present understood, to the investigation of the continued soundness of an accepted precept of law. In the judgments of Lord Stowell there are many such examples; and guided as he was by precedent and authority, he could not be said to have been led by anything but the principles of universal justice. At no time does he appear for a moment to have hesitated in putting aside precedent, when the true doctrine was unsatisfied. Mr. Justice Story acted on the same plan. The granting of salvage for the recapture of neutral property—the denial of the right of the Danish Government to confiscate private debts—the declaration of Mr. Justice Story, that the slave trade was against the law of nations—are a few amongst many remarkable examples of the fundamental principle being allowed to alter and overrule the authoritative precept.
THE LAWS OF WAR.
PART I.
THE LAWS OF WAR AFFECTING COMMERCE AND SHIPPING.
CHAPTER I. COMMENCEMENT OF WAR.
SECTION I.
The Immediate Effects of War.
For some months the state of war that has been impending between Russia, and the Allied Powers,—England, France, and Turkey,—has now become actual; and though there have been many acts of preparation and precaution on the part of England and France, we have not been, up to the present crisis, engaged in what is termed by international writers, Public and Solemn War; such a position of affairs has at last arrived.
[Sidenote: Solemn War.]
The War then, that England has entered into, is of the most Public and Solemn kind. Public War is divided into Perfect and Imperfect. The former is more usually called Solemn. Grotius defines Public or Solemn War to be such Public War as is declared or proclaimed.
Imperfect Wars between nations, that is such wars as nations carry on one against the other, without declaring or proclaiming them, though they are Public Wars, are seldom called wars at all; they are more usually known by the name of reprisals, or acts of hostility. It has often been important to determine, on the re-settlement of peace, what time war commenced, and when reprisals ceased.[2]
According to the Law of Nations, two things are required for a Solemn War; first, it must be a Public War; that is, the contending parties must be two nations, or two parties of allied nations, contending by force under the direction of a supreme executive; and secondly, it must be proclaimed, notified, or declared. And probably it must be general in its character, and not simply local or defensive. Presuming that the coming contest will be of the widest character, I shall proceed to examine its legal effects on Commerce, on that supposition.[3]
[Sidenote: Declaration of War]
Declarations have existed from the most ancient times, having been borrowed by modern nations from the manners and customs of the Romans. But in present times, (although they may be very properly put forward,) they are not necessary to a state of actual war, or as it is technically termed, to legalize hostilities. A Declaration of War is not a matter of international right.[4] Acts of hostilities, without such an instrument, cannot be denounced as irregular or piratical, unless committed in manifest bad faith. But though war may lawfully commence without an actual declaration, yet a declaration is of sufficient force to create a state of war, without any mutual attack. It is not a mere challenge from one country to another, to be accepted or refused at pleasure by the other. It proves the existence of actual hostilities on one side at least, and puts the other party also in a state of war, though, he may, perhaps, think proper to act on the defensive only.[5]
[Sidenote: War, how commenced.]
War now generally commences by Actual Hostilities, by the Recal or Dismissal of an Ambassador or Minister, or by a Manifesto published by one belligerent power to its own subjects.
Manifestoes are issued to fix the date of the commencement of hostilities; for as a state of war has many various effects on commercial transactions, such as the confiscation of certain property, and the dissolution of certain contracts, it is very necessary that such a date should be accurately known. When a Manifesto or Declaration is issued, it is said to legalize hostilities, that is to say,—to make all acts done, and all breaches committed, under pressure of war, good and lawful acts and breaches.
I have given this explanation, because it is a popular notion that a declaration always precedes war; but in reality, in modern times, few wars are solemnly declared;—they begin most often with general hostilities; thus the first Dutch War began upon general Letters of Marque, and the War with Spain, that commenced by the attempted invasion of the Armada in 1588, was not declared or proclaimed between the two crowns.[6]
[Sidenote: Contents of Declaration.]
The Manifesto not only announces the commencement Contents of and existence of hostilities, but also states the reasons of, and attempts the justification of the war; and it is necessary for the instruction and direction of the subjects of the belligerent state, with respect to their intercourse with the foe; it also apprizes neutral nations of the fact, and enables them to conform their conduct to the rights belonging to the new state of things.[7]
Without such an official act, it might be difficult to distinguish, in a Treaty of Peace, those acts which are to be accounted lawful effects of war, from those which either nation may consider as naked wrongs, and for which they may, under certain circumstances, claim reparation.
When war is duly declared, it is not merely a war between one government and another, but between nation and nation, between every individual of the one state with each and every individual of the other. The subjects of one country are all, and every one of them, the foes of every subject of the other, and from this principle flow many important consequences.[8]
[Sidenote: Property of Subjects of Belligerent States in the Enemy's Country.]
On the commencement of hostilities a natural expectation will arise that the Property, (if not the Persons) of the Belligerent State, found in the Enemy's Territory, will become liable to seizure and confiscation, especially as no declaration or notice of war is now necessary to legalize hostilities. According to strict authority, the Persons and Property of Subjects of the Enemy found in the belligerent state are liable to detention and confiscation; but even on this point diversity of opinion has arisen among institutional writers; and modern usage seems to exempt the Persons and Property of the Enemy found in either territory at the outbreak of the war, from its operations.
Without entering on the long arguments that have been produced on this subject, and which it is not the intention of this treatise to reproduce, the rule may be stated very nearly as follows.[9]
That though, on principle, the property of the enemy is liable to seizure and confiscation, yet it is now an established international usage that such property found within the territory of the belligerent state, or debts due to its subjects by the government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as prize of war.
This rule is often enforced by treaty, but unless thus enforced it cannot be considered as an inflexible, though established, rule. This rule is a guide which the Sovran of the belligerent state follows or abandons at will, and although it cannot be disregarded by him without obloquy, yet it may be disregarded. It is not an immutable rule, but depends on considerations which continually vary.[10]
[Sidenote: Rule with respect to Immoveable Property.]
The rule is different with respect to Immoveable Things, such as Landed Estates. He who declares war does not confiscate the Immoveable Estate possessed in his country by the enemy, but the Income may be sequestrated, to prevent its being remitted to the enemy.[11]
[Sidenote: Public Funds.]
Public Funds, or in other words, debts due from the Sovran of the hostile state to Private Persons, are always held protected from confiscation, and there is only one instance in modern times where this rule has been broken. It is a matter of public faith; and even during war, no enquiry ought to be made whether any part of the public debt is due to the subjects of the enemy.[12]
[Sidenote: Rule of Reciprocity.]
All these rules are, however, subject to the Rule of Reciprocity. This is thus laid down by Sir William Scott, in the case of the Santa Cruz,
"that at the commencement of a war, it is the constant practice of this country to condemn property seized before the war, if the enemy condemns, and to restore if the enemy restores. It is a principle sanctioned by that great foundation of the Law of England, Magna Charta itself, which prescribes, that at the commencement of a war the enemy's merchants shall be kept and treated as our own merchants are treated in their country."[13]
[Sidenote: Droits of Admiralty.]
[14]In England, at present, however, these liberal principles are modified by Rights of Admiralty, the foregoing rules being applied rather to property upon the land than within the territory; for although, when captures are made in ports, havens, or rivers, within the body of the country of the realm, the Admiralty is in reality excluded, yet Prize Courts have uniformly, without objection, tried all such captures in ports and havens within the realm; as in the case of ships not knowing hostilities, coming in by mistake, before the declaration of war or hostilities; all the ships of the enemy are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made.[15]
[Sidenote: Hostile Embargo.]
This species of reprisal is termed a Hostile Embargo. It cannot well be distinguished from the practice of seizing property found within the territory upon the declaration of war. It is undoubtedly against the spirit of modern liberality, and has been but too justly reprobated as destroying that protection to property which the rule of faith and justice gives it, when brought into the country in the course of trade, and in the confidence of peace.
It is not, however, as Wheaton states, peculiar to England, but common to modern Europe, except that England does not, in practice, appear to be influenced by the corresponding conduct of the enemy in that respect.[16]
[Sidenote: Debts Due to and from an Enemy.]
But with relation to Debts Due to an Enemy, previous to hostilities, English law follows a wiser principle.
On the outbreak of war between Denmark and this country in 1807, the Danish Government, as a measure of retaliation for the seizure of their ships in our ports, issued an ordinance sequestrating all debts due from Danish to British subjects, causing them to be paid into the Danish Royal Treasury.
The Court of King's Bench decided that this was not a legal defence to a suit in England for the debt, and that the ordinance was not conformable to the Law to Nations.[17] It was observed by the Court, that the right of confiscating debts (contended for on the authority of Vattel,)[18] was not recognised by Grotius,[19] and was impugned by Puffendorf and others; and that no instance had occurred of the exercise of the right, (except the ordinance in question,) for upwards of a century. This is undoubtedly the law in England, although it may be doubted if this rule still holds so strongly in the United States.
[Sidenote: Interruption of Intercourse; Trading with the Enemy unlawful.]
One of the most immediate consequences of the outbreak of hostilities is the complete interruption of Commercial Intercourse between the subjects of the countries at war, even to the extent of holding it unlawful, after war has begun, except under special licence of the government, to send a vessel to the enemy's country to bring home, with their permission, one's own property, when war has broken out.
There cannot exist at the same time a war for arms and a peace for commerce; from the very nature of war all commercial intercourse ceases between enemies. This interdiction of intercourse is the result of the mere operation of war; for declarations of war generally enjoin on every subject the duty of attack on the subjects of the hostile state, of seizing their goods, and doing them every harm in their power.[20]
From the very nature of war itself, all commercial intercourse ceases between enemies. The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the law of war as to commerce. Hence, commerce is alternately permitted and forbidden in time of war, as princes think it most for the interest of their subjects. A commercial nation is anxious to trade, and accommodate the laws of war to the greater or lesser want that it may have for the goods of the other. Thus sometimes a mutual commerce is permitted generally; sometimes as to certain merchandizes only, while others are prohibited; and sometimes it is prohibited altogether. In this manner there is partly peace and partly war, between subjects of both countries.[21]
In the case of the Hoop,[22] Sir Wm. Scott says,
"By the law and constitution of Great Britain, the Sovereign alone has the power of declaring War and Peace. He alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, when he sees proper, that commercial intercourse, which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient; but it is not for individuals to determine on the expediency of such occasions, on their own notions of commerce only, and possibly on grounds of private advantage not very reconcilable with the general interests of the state. It is for the state alone, on more enlarged views of policy, and of all circumstances that may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. No principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the state. Who can be insensible to the consequences that might follow, if every person in time of war had a right to carry on a commercial intercourse with the enemy; and under colour of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme; and where is the inconvenience on the other side, that the merchants should be compelled, in such a situation of the two countries, to carry on his trade between them, (if necessary,) under the eye and control of the Government charged with the care of public safety?"
[Sidenote: Alien Enemy cannot sue in this country.]
Sir William then goes on to say,
"another principle of law, of a less politic nature, but equally general in its reception and direct in its application, forbids this sort of communication as fundamentally inconsistent with the relation at the time existing between the two countries, and that is the total inability to sustain any contract by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the law of almost every country, the character of an Alien Enemy carries with it a disability to sue, or to sustain, in the language of the civilians, a persona standi in judicio. The peculiar law of our own country applies this principle with great rigour—the same principle is received in our Courts of the Law of nations; they are so far British courts, that no man can sue therein who is a subject of the Enemy, unless under particular circumstances that pro hac vice discharge him from the character of an Enemy, such as his coming under a flag of truce, a cartel, or a pass, or some other act of public authority that puts him in the Queen's peace pro hac vice. But otherwise he is totally Ex lex! Even in the case of ransom bills which were contracts, but contracts arising out of the laws of war, and tolerated as such, the Enemy was not permitted to sue in his own person, for the payment of the ransom bill; the payment was enforced by an action brought by the imprisoned hostage in the courts of his own country, for the recovery of his freedom. A state in which contracts cannot be enforced is not a state of legal commerce."
[Sidenote: No Trade permitted except under Royal licence.]
"Upon these and similar grounds, it has been the established rule of this court, confirmed by the judgment of the supreme court, that a trading with the enemy, except under a Royal Licence, subjects the property to confiscation.
"Where the Government has authorised, under sanction of an Act of Parliament, a homeward trade from the enemy's possessions, but has not specifically protected an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence, the rule has been enforced, where strong claim not merely of convenience, but almost of necessity, excused it on behalf of the individual.
"It has been enforced, where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first notice of hostilities.[23]
"In the last war between England and America, a case occurred in which an American citizen had purchased a quantity of goods within the British territory, a long time previous to the war, and had deposited them upon an island near the frontier; upon the breaking out of hostilities, his agents had hired a vessel to proceed to the spot, to bring away the goods; on her return she was captured, and with the cargo, condemned as prize of war."[24]
So also, where goods were purchased, some time before the war, by the agent of an American citizen in Great Britain, but not shipped until nearly a year after the declaration of hostilities, they were pronounced liable to confiscation.[25]
Where property is to be withdrawn from the country of the enemy, it is the more satisfactory and guarded proceeding on the part of the British merchant to apply to his own Government for the special importation of the article; it is indeed the only safe way in which parties can proceed.[26]
[Sidenote: Subjects of an Ally may not trade with the Enemy.]
During a Conjoint War no Subject of an Ally can trade with the common enemy without liability to forfeiture in the prize courts of the Ally, of all his property engaged in such trade. As the former rule can be relaxed only by permission of the Sovran power of the state, so this can be relaxed only by the permission of the allied nations, according to their mutual consent.[27]
[Sidenote: Contracts void.]
On similar principles, all Contracts made with the Enemy during War are utterly void. This applies to Insurances on the enemy's property and trade; to the drawing and negociation of Bills of Exchange, whether the subject of this country or of the alien enemy be the acceptor; to the sending of Money or Bills to the enemy's country; to Commercial Partnerships. All endeavours to trade by third persons are equally illegal.[28]
Thus also all Contracts made in contemplation of War, and which never could have existed at all, but as an insurance against the pressure of war, and with a view to evade the rights that arise out of war, and in fraud of the belligerent, are illegal, even though made by neutrals.[29]
[Sidenote: Insurances.]
The municipal or common law of every state declares all Insurances to be void, by which ships or merchandize of the enemy are sought to be protected. Also all Insurances by or on behalf of alien enemies are wholly illegal and void, although effected before the breaking out of hostilities; but if both the policy had been effected and the loss accrued before the war, the remedy is only suspended during the war.
The general principle is that the contract of assurance is vacated and annulled ab initio; wherever an insurance is made on a voyage expressly prohibited by the common, statute, or maritime law of the country; the policy is of no effect.[30]
Thus, if a ship, though neutral, be insured on a voyage prohibited by an embargo laid on in time of war, by the prince of the country in whose ports the ships happen to be, such an insurance is void.[31]
Similarly, all Insurances to protect the interests of British subjects trading without licence with the enemy are absolutely void.[32]
So also, if a Licence is not strictly pursued, so that the voyage becomes illegal, the insurance is void.[33]
I have said that all Insurances will be void which are designed to protect voyages or trading to hostile ports. But, for this purpose, it must be clearly made out, not only that the port into which the ship sails is hostile, but also, that she was bound with a distinct hostile destination at the time of loss. Thus a policy to "ports in the Baltic," is legal, as some may be hostile, and some not, and it is not certain that she was sailing to a hostile port.
The general principle by which the validity of a policy is to be tested, is by the voyage, that it is a voyage prohibited by law, on some ground of public policy. The will, therefore, of the parties is of no account, as the prohibition is for public, and not private benefit. So that if the underwriter is told that the voyage is illicit he is not more bound than if he were not told so.[34]
It is Insurances upon voyages generally prohibited by law, such as to an enemy's garrison, or upon a voyage directly contrary to an express act of parliament, or to royal proclamation in time of War, that are absolutely void and null;—therefore, on neutral vessels, or the vessels of British subjects possessing neutral rights and sailing from neutral ports to enemies ports are not void.[35]
Similarly, with respect to Insurances on neutral vessels carrying contraband goods, for it is not the voyage, but the cargo, that is illegal in that case.[36]
Insurances are good on Neutral Vessels engaged in the Colonial Trade of the Enemy, and which was closed to the Neutral in time of peace,[37] It must be observed, that if a voyage is illegal, and voids the policy for that voyage, it does not follow that it voids the voyage in the opposite direction, and even the goods purchased by the proceeds of a former illegal voyage, may be the subject of Insurance.[38]
[Sidenote: Bills of Exchange drawn during War.]
It has been stated above that all Bills drawn or negociated with the enemy, whether a British subject or the alien enemy be the acceptor, are null and void; during the last war, however, attempts were often made to draw and negociate bills that should pass muster in our courts of law, as for example:—
An alien enemy, during war, drew upon a British subject resident in England, and who had funds of the alien in his hands; the drawer then indorsed the bill to an English-born subject, resident in the hostile country; such a bill cannot be enforced even after the restoration of peace, for otherwise it would enable alien enemies to take the benefit of all their property in this country, by allowing them to pay debts out of such funds, by the instrumentality of bills.[39]
The principle seems to be,—that it is not every bill that bears the name of an alien enemy upon it that is void, but such bills only that are instrumental in assisting in communication with an alien enemy;—and a liberal application of this principle has been made use of to open a way for English prisoners to make use of their property at home for their support in the country of their captivity. Thus, where one of two Englishmen, detained in France on the breaking out of hostilities, drew in favour of the other, upon a subject here, it was held that he might legally draw such a bill for his subsistence, and that he might indorse it to an alien enemy, an inhabitant of the hostile country; for he could not avail himself of the bill except by negociation; and to whom could he negociate it, except to the inhabitants of the country in which he resided?[40]
Bills, like other contracts, are only void by the policy of war; but the law still recognizes some extent of obligation between the parties, so that bills void in their concoction (as instruments of trade with the enemy,) are not so far void that they may not constitute the basis of a promise by which a party may bind himself on the return of peace.[41]
[Sidenote: Contracts made before the War.]
On the very important question of the effect of a declaration on Contracts with the subjects or the enemy, entered into previous to the War, the rule is, that if the performance of the contract be rendered unlawful by the Government of the country, the contract is dissolved on both sides.[42]
Thus the contract of Affreightment is dissolved when the voyage becomes unlawful, by the commencement of war, or the interdiction of commerce;[43] and this whether the interdiction is complete as to the ship, or partial as to the receiving of goods.
Similarly, if the voyage be broken up by Capture on the passage, so as to cause a complete defeat of the undertaking, the contract is dissolved, notwithstanding a recapture.[44]
A Blockade of the port of destination, that renders the delivery of the cargo impossible, and obliges the ship to return to its port of destination, dissolves the contract.[45]
A temporary interruption of the voyage does not put an end to the agreement. Embargoes, hostile blockades, and investments of the port of departure are held to be temporary impediments only.[46]
But in the case of an Embargo imposed by the government of the country, of which the merchant is a subject, in the nature of reprisals and partial hostility, against the enemy to which the ship belongs, the merchant may put an end to the contract, if the object of the voyage is likely to be defeated thereby; as if, for example, the cargo were of a perishable nature.[47]
[Sidenote: Partnerships.]
A Public War operates as a positive dissolution of Partnerships between subjects of the contending nations. Every Partnership is dissolved by the extinction of the business for which it was formed.[48] By a declaration of War, the respective subjects of each country become positive enemies to each other. They can carry on no commercial or other intercourse with each other; they can make no valid contracts with each other; they can institute no suits in the courts of either country; they can, properly speaking, hold no communication of an amicable nature, with each other; and their property is mutually liable to capture and confiscation by the subjects of the other country. The whole objects and ends of the Partnership, the application of the joint funds, skill, labour, and enterprize of all the Partners of the common business, can no longer be attained.[49]
Thus a Partnership between alien friends, is at once defeated when they become alien enemies.
This dissolution, however, only has respect to the future. The parties remain bound for all antecedent engagements. The partnership may be said to continue as to everything that is past, and until all pre-existing matters are wound up and settled. With regard to things past, the partnership continues, and must always continue.
No notice is necessary to the world to complete the dissolution of the association. Notice is requisite when a partnership is dissolved by the act of the parties, but it is not necessary when the dissolution takes place by the act of law. All mankind are bound to take notice of the War, and its consequences. Besides, any special notice would be useless unless joint, and as the partners could hold no lawful intercourse, a lawful joint notice is impossible.
It must not be supposed that peace will have any healing effect, to restore the parties to their rights; the co-partnership being once dissolved by the war, it was extinguished for ever, except as to matters existing prior to the war.[50]
With regard to the effect of war upon partnerships, where the partners are severally subjects of the belligerent powers. According to Mr. Justice Story,
"this point does not seem to have been discussed in our courts of justice until a recent period; yet it would seem to be a necessary result of principles of public law, well established and defined. By a declaration of war, the respective subjects of each country become positive enemies of each other. They can carry on no commercial or other intercourse with each other; they can make no valid contracts with each other; they can institute no suits in the courts of either country; they can, properly speaking, hold no communication of an amicable nature with each other; and their property is mutually liable to capture and confiscation, by the subjects of either country. Now, it is obvious from these considerations, that the whole ends and objects of the partnership, the application of the joint funds, skill, labours, and enterprize, of all the partners in the common business thereof, can no longer be attained. The conclusion therefore, would seem to be absolutely that this mutual supervening capacity, must, upon the very principles applied to all analagous cases, amount to a positive dissolution of the partnership."[51]
The law of nations has not even stopped at the points already stated; it proceeds further. The question of enemy or no enemy, depends not upon the natural allegiance of the partners, but upon their domicile.
[Sidenote: Partnerships.]
If a partnership is established, and as it were domiciled, in a neutral country, and all the partners reside there, it is treated as a neutral establishment, and is entitled to protection accordingly. But if one or more of the partners is domiciled in an enemy's country, he or they are treated personally as enemies, and his share of the partnership property is liable to capture and condemnation accordingly, even though the partnership establishment is in the neutral country. The inference from these considerations is, that in all these cases there is an utter incompatibility from operation of law between the partners, as to their respective rights, duties, and obligations, both public and private; and therefore, that a dissolution must necessarily result therefrom, independent of the will or acts of the parties.[52]
And, as a general rule, therefore, it may be laid down, that if the performance of a covenant be rendered unlawful by the Government of this country entering into war, the contract will be dissolved on both sides, and the offending party, as he has been compelled to abandon his contract, will be excused from the payment of damages for its non-performance; but it is otherwise, if the non-performance is prevented only by the prohibition of a foreign country.[53]
In such cases, the remedy only is suspended; and other cases may occur on these principles, where, from other circumstances, the remedy only is suspended until the termination of the war; as for example, in most cases of executed contracts.
[Sidenote: Trading with the Enemy punishable.]
Trading with the Enemy, was at an early period an indictable offence in the English Court of Admiralty.[54] And in the time of King William, it was held to be a misdemeanor at common law, to carry corn to an enemy.[55]
The law, as I have faintly sketched it out, is founded to some extent on American authorities, where the question has been as fully discussed as in the reports of this country; but there can be little doubt that the law is the same in this country: although a doubt was once thrown on it, by the strong political opinion of Lord Mansfield, as to the policy of allowing trade with an enemy, or assuring an enemy's property. The lustre of his talents, and his ascendancy in the Court of King's Bench, were calculated to continue the delusion. During his time, the question as to the legality of such insurances was never mooted; for he frowned on every attempt to set up such a defence, as dishonest and against good faith.[56]
The strict rule of interdicted intercourse has been carried so far in the British Admiralty, as to prohibit supplies to a British Colony during its partial subjection to the enemy, and when the Colony was in want of provisions.[57]
[Sidenote: Cartel Ships]
The same interdiction to trade applies to Cartel Ships, or Ships of Truce, that is, to Ships sent to recover prisoners of war; and there is but one exception to this rigorous rule of International Law;—the case of Ransom Bills, which are contracts of necessity, founded on a state of war.
SECTION II.
On Enemies and Hostile Property.
During a peace of thirty-nine years, there has naturally arisen a vast inter-immigration throughout Europe; many complicated commercial and family relations have sprung up between nations of different countries; many Englishmen are permanently settled in various parts of Europe; and England, in return, is crowded with Foreigners, who look upon this country as their present and future home. What is the position of these persons at the commencement of war? Who, in fact, are our enemies?
And the previous Section, in which the effect of War on Commercial Relations has been sketched out, must have made it quite evident that it has become important accurately to determine what relations and circumstances impress a hostile character upon persons and property. According to Chancellor Kent, "the modern International Law of the Commercial World is replete with refined and complicated distinctions on this point."
* * * * *
[Sidenote: Alien Enemies]
A man is said to be permanently an Alien Enemy, when he owes a permanent allegiance to the adverse belligerent, and his hostility is commensurate in point of time with his country's quarrel. But he who does not owe a permanent allegiance to the enemy, is an enemy only during the existence and continuance of certain circumstances.[58]
The character of enemy arises from the party being in what the law looks upon as a state of allegiance to the state at war with us; if the allegiance is permanent (as in the case of a natural-born subject of the hostile Sovran), the character is permanent.
But with respect to the man who is an alien enemy from what he does under a local or temporary allegiance to a power at war with us—when the allegiance ends, the character of alien enemy ceases to exist.[59]
Of course all persons owing a natural allegiance to the enemy are our enemies; but on the same broad principles of natural justice that impress a temporary character upon our friends and fellow countrymen, under special circumstances individuals from amongst our natural enemies become our friends and fellow subjects.
* * * * *
[Sidenote: Prisoners of War.]
The first among these are Prisoners of War.
A Prisoner of War is not adhering to the King's enemies, for he is here under the protection from the King. If he conspires against the King's life it is high treason; if he is killed (malice aforethought), it is murder. He is not, therefore, in a state of actual hostility. At one time it was ruled, that a prisoner of war could not contract; but that case was thought hard. Officers on their parole must subsist like other men of their own rank; but if they could not contract they must starve; for they could gain no credit if deprived of the power of sueing for their own debts. A prisoner in confinement is protected as to his person, and if on parole he has protection in his credit also.[60]
He is allowed to support himself, and add to his personal comfort, by applying himself in his trade or business, and may maintain an action on his contract for his wages; nor can he be compelled, when sueing for money necessary for his support, to give security for costs like any other foreigner temporarily resident in this country.[61]
* * * * *
[Sidenote: Married Foreigners.]
A wife generally follows the country and allegiance of her husband; but where she is in this country of necessity, or is here owing allegiance by her birth, and her husband is an alien enemy and under an absolute disability to come and live here, the law steps in to her aid, and gives her the privileges of an unmarried woman, so that she may sue and be sued, and make contracts for and against herself, for her maintenance. "Her case," says Chief Justice Holt, "does not differ from that of those ladies who were allowed to sue and be sued upon the adjuration or banishments of their lords, as if they had been sole."[62]
Foreign ladies, who have married Englishmen, are, by their marriage, naturalized, and have all the rights, privileges, and duties, of natural-born subjects, and cease to be enemies.[63]
* * * * *
[Sidenote: Enemies by Hostility.]
A hostile character may be acquired by alien friends, by acts of actual hostility, and by alien friends and our fellow-subjects also, by what are termed personal and commercial domicile. Of course a British subject in actual hostility to his native country is more than enemy, he is a traitor, and has no belligerent rights; but an alien friend, that is a neutral engaging in war against this country, under the commission of a foreign prince, and in the ranks of a hostile army, or on board a legally commissioned enemy's vessel, is an enemy, and has all the rights of a prisoner of war, if taken.
* * * * *
[Sidenote: Mariners.]
A Mariner, by a general rule, takes the character of the country in whose service he is employed, and even fugitive visits to the place of his birth will not entitle him to retain the benefit of a neutral character, in opposition to a regular course of employment in the enemy's country and trade; nor does the fact of his wife and family residing in his own country enable him to retain his native character.[64]
* * * * *
[Sidenote: Domicile, Test of Nationality.]
With the exception of these special cases, in a state of war, Domicile is the Test of Nationality. According to Grotius,
"By the Law of Nations all the subjects of the offending state, who are such from a permanent cause, whether natives or emigrants from another country, are liable to reprisals; but not so those who are only travelling or sojourning for a little."
And he even holds that the right of killing and doing bodily harm to enemies extends "not only to those who bear arms, or are subjects of the author of the war, but to all those who are found in the enemy's territory;" meaning all those found domiciled or adhering to the enemy.
If, then, a native of England resides in a belligerent country, his property is liable to capture as enemy's property; and if he resides in a neutral country, he enjoys all the privileges, and is subject to all the inconveniences of the neutral trade.[65]
He takes all the advantages and disadvantages of the country of his adoption; with the limitation, that he must do nothing inconsistent with his native allegiance;[66] as, for example, if he emigrate to a neutral country during the time of war, he will not be permitted to acquire the character of a neutral merchant, and trade with the enemy in that character, it being his duty to injure the enemy to the full extent of his power.[67]
* * * * *
[Sidenote: Test of Domicile.]
In determining the important question of Domicile, the animus manendi, or disposition to remain or settle in the land of the domicile, is the question to be determined.
If a man goes into a foreign country upon a visit, to travel for health, to settle a particular business, or for similar purposes, the residence naturally attendant on these circumstances is not generally regarded as a permanent residence.
But though a special purpose, such as the above, does not fix a domicile, yet these circumstances are not to be taken without respect to the time they may probably or actually do occupy. A general residence may grow upon a special purpose. It is difficult to fix the amount of time necessary to create a domicile, and it probably must be determined from each particular case. Thus, if a man remained in a hostile state after the outbreak, employed on some great work, which would occupy him many years, or beyond the probable termination of the war, or were unable to leave that particular climate on account of health, or were under any disability to return to his native country, the amount of time he had resided there would become an element of the question; against such a residence, the plea of an original special purpose, could not be averred; but it must be inferred, in such a case, that other purposes forced themselves upon him, mixed themselves with his original design, and impressed upon him the character of the country where he resided.
But, as an exception, a residence involuntary or constrained, however long, does not change the original character of the party, and give him a new and hostile one.
Domicile is fixed by a disclosed intention of permanent residence; if the emigrant employs his person, his life, his industry, for the benefit of the state under whose protection he lives; and if, war breaking out, he continues to reside there, pays his proportion of taxes, imposts, and revenues, equally with the natural-born subjects, no doubt he may be said to be domiciled in that country.
When these circumstances are ascertained, time ceases to be an element in the question, and the animus manendi, once ascertained, the recency of the establishment, though it may have been for a day only, is immaterial.
The intention is the real subject of enquiry; and the residence, once the domicile, is not changed by periodical absence, or even by occasional visits to the native country, if the intention of foreign domicile remains.
The native character, however, easily reverts; more so in the case of a native subject, than of one who is originally of another country. The moment an emigrant turns his back on his adopted country, with the intention of returning to (not simply visiting) his native country, he is in the act of resuming his original character, and must be again considered as a citizen of his native land;[68] even if he is forcibly detained in the country he is parting from, as was the case with British subjects on the breaking out of the War of 1804.[69]
But it is advisable for persons so situated, on their intended removal, to make application to Government for a special pass, rather than to trust valuable property to the effect of a mere intention to remove, dubious as that intention may frequently appear, under the circumstances that prevent that act from being carried into execution.
But, as we have before observed, general principles on this subject are scarcely sufficient; the right of domicile must depend on each individual case. If no express declaration has been made, and the secret intention has yet to be discovered, it can be evidenced by the acts of the party. In the first instance, these acts are removal to a foreign country, settlement there, and engagement in the trade of the country: and if a state of war brings his national character into question, it lies on him to explain the circumstances of his residence.
* * * * *
[Sidenote: Domicile in Eastern Countries.]
A singular exception exists in reference to the rule of domicile. In the Western parts of Europe, alien merchants mix in the society of the natives; but in the East, from almost the oldest times, an immixable character has been kept up; foreigners continue strangers and sojourners, as all their fathers were. Merchants residing in these countries are hence still considered British subjects.
* * * * *
[Sidenote: Hostile character acquired by Trade.]
Again, a National Character may be acquire by Trade, or, as it is called, by commercial domicile. In general, the national character of a person, as neutral or enemy, is determined by that of his domicile; but the property of a person may acquire a hostile character independently of his personal national character derived from personal domicile. A person carrying on trade habitually in the country of the enemy, though not personally resident there, should have time given him to withdraw from that commerce; it would press too heavily on neutrals to say, that immediately on the first breaking out of a war, their goods should become subject to confiscation. But if a person enters into a house of trade in the enemy's country, in time of war, or continued that connexion during the war, he cannot protect himself by mere residence in a neutral country. "It is a doctrine supported by strong principles and equity," says Sir William Scott, "that there is a traffic which stamps a National Character on the individual, independent of that Character which mere personal residence may give him."[70] The principle does not go to the extent of saying that a man, having a house of trade in the enemy's country, as well as in a neutral country, should be considered in his whole concerns as an enemy's merchant, as well in those which respected solely his neutral house, as in those which belong to his belligerent domicile.[71]
His lawful trade is exonerated from the operation of his unlawful trade, in all cases, and under all phases. All trade that does not originate from the belligerent country is protected, but not so, if it can be traced so to arise in not too remote a degree.
The same protection however is not extended to the case of a merchant residing in the hostile country, and having a share of a house of trade in an enemy's country. Residence in a neutral country will not protect his share in a house established in the enemy's country, though residence in the enemy's country will condemn his share in a house established in a neutral country.[72]
[Sidenote: Rule of 1756.]
The next mode in which a hostile character may be given to those not naturally bearing it, is by dealing in those branches of commerce which are confined in the time of peace to the subjects of the enemy: i.e. the ships and cargoes of a Neutral engaged in the colonial or coasting trade of the enemy (not open to foreigners in time of peace), are liable to the penal consequences of confiscation. This point; was first mooted in the war of 1756, and is called the rule of 1756.[73]
* * * * *
[Sidenote: National Character of Ships.]
When there is nothing particular or special in the conduct of the vessel itself, the national character is determined by the Residence of the Owner; but there may be circumstances arising from that conduct which will lead to a contrary conclusion. It is a known and established rule with respect to a vessel, that if she is navigating under the pass of a foreign country, she is considered as bearing the national character of the nation under whose pass she sails; she makes a part of its navigation, and is in every respect liable to be considered as a vessel of that country. In like manner, and on similar principles, if a vessel, purchased in the enemy's country, is by constant and habitual occupation continually employed in the trade of that country, commencing with the war, continuing during the war, and evidently on account of the war, that vessel is deemed a ship of the country from which she is so navigating, in the same manner as if she evidently belonged to the inhabitants of it.[74] Further, when parties agree to take the pass and flag of another country, they are not permitted, in case any inconvenience should afterwards arise, to aver against the flag and pass to which they have attached themselves, and to claim the benefit of their real character. They are likewise subject to this further inconvenience, that their own real character may be pleaded against them by others. Such is the state of double disadvantage to which persons expose themselves by assuming the flag and pass of a foreign state.[75]
* * * * *
[Sidebar: Distinction as to Cargoes]
A distinction is made in England between the Ship and the Cargo. Some countries have gone so far as to make the flag and pass conclusive on the cargo also; but in England it is held that goods have no dependence upon the authority of the state, and may be differently considered. If the cargo is laden in time of peace, though documented as foreign property, in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo.[76]
* * * * *
[Sidebar: Hostile Property cannot be Transferred in Transitu.]
Property which has a hostile character at the commencement of a voyage, cannot change that character by assignment while it is in transitu, so as to protect it from capture.[77]
In the ordinary course of things, in the time of peace, such a transfer in transitu can certainly be made. When war intervenes, another rule is set up by the Courts of Admiralty, which interferes with the ordinary practice. In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at the time of shipment, till actual delivery; this arises out of a state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist, all goods shipped in an enemy's country would be protected by transfers, which it would be impossible to detect.[78]
CHAPTER II.
SECTION I.
Actual War.—Its Effects.
[Sidenote: Objects of War.]
Vattel tells us
"The end of a just war is to avenge or prevent injury; that is to say, to obtain justice by force, when not obtainable by any other method; to compel an unjust adversary to repair an injury already done, or to give us securities against any wrong with which we are threatened by him. As soon therefore as we have declared war, we have a right to do against the enemy whatever we find necessary for the attainment of that end, for the purpose of bringing him to reason, and obtaining justice and security from him.
"The lawfulness of the end does not give us any thing further than barely the means necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the law of nature—is faulty and condemnable at the tribunal of conscience. Hence it is that the right to such acts varies according to circumstance. What is just and perfectly innocent in one situation is not always so on other occasions. Right goes hand in hand with necessity and the exigency of the case, but never exceeds them."
Such are some of the arguments that Vattel puts forth with all the strength of reason and eloquence, against all unnecessary cruelty, and all mean and perfidious warfare.
There was no limit to the career of violence and destruction, justified by some of the earlier writers; they considered a state of war as a dissolution of all moral ties, and a licence for every disorder and fierceness: even such authors as Bynkershoek and Wolff, who lived in the most learned and not the least civilized nations of Europe, and were the contemporaries of that galaxy of talent that adorned the commencement of the eighteenth century, held that every thing done against an enemy was lawful. He might be destroyed, though unarmed, harmless, defenceless; fraud, even poison, might be used against him. A foe was a criminal and an outlaw, who had forfeited his rights, and whose life, liberty, and property, lay at the mercy of the victor.
But such was not the public opinion or practice of enlightened Europe at the time they wrote. Grotius had long before, even in opposition to his own authorities, but influenced by religion and humanity, mentioned that many things were not fit and commendable, though they might be strictly lawful. He held that the Law of Nations prohibited the use of poisoned arms, the employment of assassins, violence to women or the dead, or making slaves of prisoners. Montesquieu followed in the same humane spirit. He writes, that the civilians said,
"That the law of nations, to prevent prisoners being put to death, has allowed them to be made slaves.... The reasons of the civilians are all false. It is false, that killing in war is lawful, unless in case of absolute necessity; but when a man has made another his slave, he cannot be said to be under a necessity of taking away his life, since he actually did not take it away. War gives no other right over prisoners than to disable them from doing any further harm, by securing their persons. All nations concur in detesting the murdering of prisoners in cold blood."[79]
Thus, it is now the established Law of Nations, that necessity is the measure of violence in war, and humanity, its tempering spirit; or, as it has been otherwise enunciated, the rights of war are to be measured by the objects of the war.
Although we have a right to kill our enemies in war; it is only when we find gentler methods insufficient to conquer their resistance and bring them to terms, that we have a right to put them to death.[80]
Under the name of enemies are comprehended not only the first author of the war, but also those who join him and support his cause.
[Sidenote: Cartel]
Out of these enlightened views of war has sprung the System of Cartels for the exchange of prisoners. These exchanges are generally regulated by special convention between the hostile states. Prisoners are sometimes permitted to return home, upon condition not to serve again during the war, or until duly exchanged. Officers are frequently released upon their parole, on the same condition; and to carry more effectually into operation the arrangements necessary for these purposes, commissaries are permitted to reside in the respective hostile states.
Subject to the principle of non-resistance, there are several classes of persons that are generally considered exempt from the operations of war, beyond the effects of unavoidable accident. "All the members of the enemy's state," says Wheaton,
"may lawfully be treated as enemies, in a Public War; but it does not follow that all are to be treated alike; though we may lawfully destroy some of them, it does not follow that we may lawfully destroy all; for the general rule derived from the natural law is still the same, that no force against an enemy is lawful, unless it is necessary to accomplish the purposes of war. The custom of civilised nations founded on this principle, has therefore exempted the persons of the Sovran and his family, the members of the Civil Government, women and children, cultivators of the earth, artizans, labourers, merchants, men of science and letters, and generally all other public or private persons engaged in the ordinary civil pursuits of life, from the direct effect of military operations, unless actually taken in arms, or guilty of some misconduct in violation of the usages of war, by which they forfeit their immunity."[81]
The same principle of moderation towards that which is non-resisting limits and restrains the operations of war against the territory and other property of the enemy. There is a marked difference in the rights of war carried on by land and at sea, in modification of the general right to seize on all the enemy's property, and to appropriate that property to the captors.
[Sidenote: Objects of a Maritime War.]
The object of a Maritime War is the destruction of the enemy's commerce and navigation, in order to weaken and destroy the foundations of his naval power. The capture or destruction of private property is necessary to that end, and is allowed in maritime wars, by the practice and law of nations.
[Sidenote: Private Property on Land.]
But private property on land is exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This exemption extends even to an absolute and unqualified conquest of an enemy's country. In ancient times, both real and personal property of the vanquished passed to the victors; but the last example of confiscation and partition among the conquerors in Europe, was that of England, by William of Normandy.
Unless in special cases, private property on land is not touched, without making compensation; though contributions are sometimes levied in lieu of a necessary confiscation, or for the expenses of maintaining and affording protection. In other respects private rights are unaffected by war.
[Sidenote: Government Property.]
The property, however, belonging to the Government of the vanquished nation, passes to the victorious state, which also takes the place of the former Sovereign, in respect to the eminent domain.[82]
[Sidenote: Limitations of the Right of making War.]
The right of making War, as we have shown in the first chapter of this book, solely belongs to the Sovran power. Subjects cannot, therefore, of themselves, take any step in the affair; nor are they allowed to commit any act of hostility without orders from their Sovran.
The Sovran's order which commands acts of hostility, is either general or particular. The declaration of war, which enjoins the subjects to attack the enemy's subjects, implies a general order. Generals, officers, soldiers, privateersmen, and partisans, being all. commissioned by the Sovran, make war by virtue of a particular order.
In declarations of war, the ancient form is still retained,[83] by which subjects in general are ordered, not only to break off all intercourse with, but also to attack the foe. Custom interprets this general order. It authorises, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands; but it does not invite the subject to undertake any offensive expedition without a commission or particular order.[84]
SECTION II.
Prizes and Privateers.
[Sidenote: Privateer Commissions.]
During the lawless confusion of the feudal ages, the right of making Reprisals was claimed and exercised, with out a Public Commission. It was not until the fifteenth century that Commissions were held necessary, and were issued to private subjects in time of war, and that subjects were forbidden to fit out vessels to cruise against enemies without licence. There were ordinances in Germany, France, Spain, and England, to that effect.[85]
[Sidenote: Non-Commissioned Captors.]
Hostilities, without a Commission, are contrary to usage, and exceedingly irregular and dangerous, but they are not considered as acts of Piracy during the time of war. Noncommissioned vessels of a belligerent nation may at all times capture hostile ships, without being deemed, by the Law of Nations, Pirates. But they have no interest in the prizes they take, and the property so seized is condemned to the Government as Droits of the Admiralty. The reward of this class of captors is left to the liberality of the Admiralty, and is often referred to the Admiralty Court.
[Sidenote: Right of Capture.]
The fruits of any forcible detention or occupancy, prior to hostilities, are vested in the crown; similarly, British property taken in course of trade forbidden by the laws of his country, is condemned to the Crown, and not to the individual captor.[86]
To prevent the custom house or excise vessels, that may be commissioned with letters of marque, turning their attention from the smugglers to the more attractive adventure of privateering, all interest in their prizes is reserved to the crown,[87]
[Sidenote: Grants to the Admiralty.]
Though all rights of prize belong originally to the Crown, yet it has been thought expedient to grant a portion of those rights to maintain the dignity of the Lord High Admiral. This grant, (whatever it conveys,) carries with it a total and perpetual alienation of the rights of the crown, and nothing short of an Act of Parliament can restore them; whereas the grant to private captors is nothing more than the mere temporary transfer of a beneficial interest. The rights of the Admiral, as distinguished from those of the Crown, are these; that when vessels come in, not under any motive arising out of the occasions of war, but from distress of weather, or want of provisions, or from ignorance of war, and are seized in port, they belong to the Lord High Admiral; but where the hand of violence has been exercised upon them, where the impression arises from acts connected with war, from revolt of their own crews, or from being forced or driven in by the Queen's ships, they belong to the Crown.
This includes ships and goods already come into the ports, creeks, or roadsteads, of all the Queen's dominions.[88]
[Sidenote: Acquisition of Captures.]
Persons fitting out Private Vessels under a Commission to cruise against the enemy, acquire the property of whatever Captures they may make, as a compensation for their disbursements, and for the risks they run; but they acquire it by grant from the Sovran who issues out the commission to them. The Sovran allows them either the whole, or a part of the capture; this entirely depends on the nature of the contract he has made with them.[89]
This grant of prize is, in terms, a grant of the property of the Queen's enemies, but it is not restricted to the property of the nations with whom we are at war. It is held in construction and practice to embrace all property liable to be condemned as prize, and which is not particularly reserved to the Crown, or the Admiralty.[90]
It depends, also, on the municipal regulations of each particular power: and as a necessary precaution against abuse, the owners of Privateers are required by the ordinances of commercial states to give adequate security that they will conduct the cruize according to the laws and usages of war, and the instructions of the Government; and that they will respect the rights of neutrals, and bring their prizes in for adjudication.
[Sidenote: Commissions of Privateers.]
The Commissions of Privateers do not extend to the capture of private property upon land; that is a right which is not even granted to Queen's ships. The words of the 3rd Section of the Prize Act extend only to capture by any of Her Majesty's ships,
"of any fortress upon the land, or any arms, ammunition, stores of war, goods, merchandize, and treasure, belonging to the state, or to any public trading company, of the enemies of the crown of Great Britain, upon the land."
Thus the interests of the Queen's cruizers are expressly limited with respect to the property in which the captors can acquire any interest of their own, the state still reserving to itself all private property, in order that no temptation may be held out for unauthorized expeditions against the subjects of the enemy on land. With regard to private vessels of war, the Lords of the Admiralty are empowered by the 9th Section, to issue Letters of Marque, to the Commanders of any such ships or vessels,
"for the attacking and taking any place or fortress upon the land, or any ship or vessel, arms, ammunition, stores of war, goods, or merchandize, belonging or possessed by any of Her Majesty's enemies in any sea, creek, river, or haven."
It was the purpose of the persons who brought in this bill, that Privateers should not be allowed to make depredations upon the coasts of the enemy for the purpose of plundering individuals, and for that reason they were restricted to fortified places and fortresses, and to property water-borne.[91]
As Privateers sometimes sail in company with Queen's vessels, and also in small squadrons, for the purpose of mutual assistance, the rights of the privateers vary. When a Privateer is sailing under the convoy of a Queen's ship, she takes no share in any prize taken by the ship, or even by herself, unless she has received orders from the convoying royal ship to give chase, or has acted hostilely against the enemy, actually aiding and assisting in the capture.[92]
When Privateers have sailed in company, it has often happened that not every vessel has been actually engaged in the capture of the prize, though they may have been rendering valuable assistance in a variety of forms, such as watching in the offing, guarding an open outlet of escape to the intended prize. In the disputes arising from these joint captures, Sir William Scott was the first to establish a settled intelligible system, on principles that might become in future easily applicable to the various cases that might arise.
[Sidenote: Constructive Captors.]
He says
"the Act of Parliament (meaning the Prize Act), and the proclamation, give the benefit of prize to the takers, by which term, are naturally to be understood those who actually take possession, or those affording an actual contribution of endeavour to that event; either of these persons are naturally included under the name of takers, but the Courts of Law have gone further, and have extended the term 'takers' to those who, not having contributed actual service, are supposed to have rendered a constructive assistance, either by conveying encouragement to the captor, or intimidation to the enemy. * * * It has been contended that where ships are associated in a common enterprize, that circumstance is sufficient to entitle them to share equally and alike in the prizes that are made; but many cases might be stated when ships so associated would not share. I must ever hold that the principle of mere common enterprise is not sufficient—it is not sufficiently specific—it must be more limited. What is the real and true criterion? She being in sight, or seeing the enemy's fleet accidentally, a day or two before, will not be sufficient; it must be at the commencement of the engagement, either in the act of chasing, or in preparations for chase, or afterwards during its continuance. If a ship was detached in sight of the enemy, and under preparation for chase, I should have no hesitation in saying that she ought to share; but if she was sent away after the enemy had been descried, but before any preparations for chase, or any hostile movements had taken place, I think it would be otherwise; there must be some actual contribution of endeavour as well as a general intention."[93]
[Sidenote: Efforts to suppress Privateering.]
Powerful efforts have been made by humane and enlightened individuals to suppress Privateering, as inconsistent with the liberal spirit of the age. In the language of Chancellor Kent,
"the object is not honour, or chivalric fame, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce."
They are sometimes manned and officered by foreigners, having no permanent connection with the country, or interest in the cause. This was a complaint made by the United States in 1819, in relation to irregularities and atrocities committed by private armed vessels, sailing under the flag of Buenos Ayres. Under the best regulations the business tends strongly to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity.
Its abolition has generally been attempted by treaty. In the treaty of Prussia and the United States, in 1785, stipulations against private armed vessels were included. In 1675, a similar agreement was made between Sweden and Holland, but the agreement was not performed. France, soon after the breaking out of the war with Austria, in 1792, passed a decree for the total suppression of privateering, but that was a transitory act, and was soon swept away in the tempest of the Revolution.
[Sidenote: Piratical Privateering.]
On these considerations naturally follows that of the classes of Privateers that can be considered Pirates.
A Privateer differs from a Pirate, in that—first, the former is provided with a Commission, or with Letters of Marque from a Sovran, of which the Pirate is destitute. Secondly, the Privateer supposes a state of war (or at least that of reprisals); the Pirate plunders in the midst of peace, as well as in war. Thirdly, the Privateer is obliged to observe the rules and instructions that have been given him, and to attack by virtue of them only the enemy's ships, or those neutral vessels which carry on an illicit commerce; the Pirate plunders indiscriminately the ships of all nations, without observing even the laws of war. But in this last point Privateers may become Pirates when they transgress the limits prescribed to them; and this is one of the reasons why we often see the former confounded with the latter.[94]
Under these general definitions, we see that it is quite open to any citizen of the world to become a privateer under a foreign Sovran; and Martens goes on to say, that
"there is nothing that prevents the granting of Letters of Marque, even to the subjects of neutral or allied powers who are able to solicit them; but since it is contrary to neutrality to suffer subjects to contribute by this means to the reinforcement of one of the belligerent powers, and to the annoyance of the other, states generally prohibit their subjects from taking Letters of Marque from a power, without the permission of their Sovereigns, and many treaties oblige them also to prohibit their subjects from doing it, as well as to forbid every species of armaments on the enemy's account, in their ports. However, the enemy is not justified in punishing them as pirates, when they have letters patent from one of the powers with whom it is at war, although their ship may be confiscated."[95]
The laws of the United States have made ample provision on this subject, and they may be considered as an expression of the general wish of civilized nations; and they prescribed specific punishment for acts which were before unlawful.
American citizens are prohibited from being concerned, beyond the limits of the United States, in fitting out or otherwise assisting any private vessel of war, to cruize against the subjects of friendly powers.[96]
In the various treaties between the powers of Europe, in the two last centuries, and in the several treaties between the United States and France, Holland, Sweden, Prussia, Great Britain, Spain, Colombia, Chili, &c., it is declared, that no subject or citizen of either nation shall accept a commission or letter of marque, to assist an enemy in hostilities against the other, under penalty of being treated as an enemy.[97]
The Title to Property taken in War may, upon general Title to principles, be considered as immediately divested from the original owner, and transferred to the captor. As to personal property, the title is considered as lost to the former proprietor, as soon as the enemy has acquired a firm possession, which, as a general rule, is considered as taking place after the lapse of twenty-four hours.[98]
Ships and goods captured at sea, are excepted from the operation of this rule. The right to all captures rests primarily in the Sovran, and no individual can have any interest in a prize, whether made by a crown or private armed vessel, but what he receives under the grant of the state.
When a prize is taken at sea, it must be brought with due care into some port, for adjudication by a competent court. The condemnation must be pronounced by a prize court of the Government of the captor, sitting either in the country of the captor, or of his ally. The prize court of an ally cannot condemn.[99]
[Sidenote: Proceedings Preliminary to Condemnation.]
The Proceedings Preliminary to Condemnation may be roughly described as follows:—
The captor, immediately on bringing his prize into port, sends up and delivers upon oath to the registry of the Court of Admiralty, all papers found on board the prize. The preparatory examinations of the captain and some of the crew of the captured ship are then taken, upon a set of standing interrogatories, before the commissioners of the port to which the prize is brought. These also are forwarded to the registry of the Court of Admiralty. A written notice, called a monition, is extracted by the captor from the registry, and served upon the Royal Exchange, notifying the capture, and calling upon all persons interested, to appear and show cause why the ship and goods should not be condemned. At the expiration of twenty days, the monition is returned into the registry, with a certificate of its service; and if any claim has been given, the cause is then ready for hearing, upon evidence arising out of the ship's papers and preparatory examinations.
The neutral master or proprietor of the cargo takes measures as follows:—Upon being brought into port, the master usually makes a protest, which he forwards to London as instructions, (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the ship or such parts of the cargo as belong to his owners, or with which he was particularly entrusted; or the master himself goes to London to take the necessary steps, as soon as he has undergone his examination.
The master, correspondent, or consul, applies to a proctor, who prepares a claim supported by the affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed belong; and that no enemy has any right or interest therein; security must be given to the amount of sixty pounds, to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein. If the captor has neglected in the mean time to take the usual steps, (but which seldom happens, as he is strictly enjoined both by his instructions and by the Prize Act to proceed immediately to adjudication,) a process issues against him, on the application of the claimant's proctor, to bring in the ship's papers and preparatory examinations, and to proceed in the usual way.
As soon as the claim is given, copies of the ship's papers and examinations are procured from the registry, and upon the return of the monition the cause may be heard. It however seldom happens, owing to the great pressure of business, (especially at the commencement of war), that causes can possibly be prepared for hearing immediately on the expiration of the time for the return of the monition; in that case, each cause must necessarily take its regular turn. Correspondent measures must be taken, by the neutral master, if carried within the jurisdiction of a Vice-Admiralty Court, by giving a claim, supported by his affidavit, and offering a security for costs, if the claim should be pronounced grossly fraudulent.
If the claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the Court, where the sentence was given, or before a notary public (which regularly should be entered within fourteen days after the sentence); and he afterwards applies at the registry of the Lords of Appeal in prize causes, which is held at the same place as the registry of the High Court of Admiralty, for an instrument called an inhibition, and which should be taken out within three months, if the sentence be in the High Court of Admiralty; and within nine months, if in a Vice-Admiralty Court; but may be taken out at later periods if a reasonable cause can be alleged for the delay which has intervened. This instrument directs the judge, whose sentence is appealed from, to proceed no further in the cause; it directs the registrar to transmit a copy of all proceedings of the inferior courts; and it directs the party who has obtained the sentence to appear before the superior tribunal to answer to the appeal. On applying for the inhibition, security is given on the part of the appellant to the amount of two hundred pounds, to answer costs, in case it should appear to the Court of Appeal that the appeal is vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party, and his proctor, by shewing the instrument under seal, and delivering a note of its contents. If the party cannot be found, and his proctor will not accept the service, the instrument is to be served, viis et modis; that is, by affixing it to the door of the last place of residence, or by hanging it on the pillars of the Royal Exchange. That part of the process above described, which is to be executed abroad, may be performed by any person to whom it is committed, and the formal part at home is executed by the officer of the court. A certificate of the service is endorsed on the back of the instrument, sworn before the surrogate of the superior court, or before a notary public, if the service is abroad. |
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