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.
If the cause be adjudged in the Vice-Admiralty Court, it is usual, on
entering the appeal there, to procure a copy of the proceedings, which
the appellant sends over to his correspondent in, England, who carries
it to a proctor, and the same steps are taken to procure and send the
inhibition as when the cause has been adjudged in the High Court of
Admiralty. But if a copy of the proceedings cannot be procured in due
time, an inhibition can be obtained, by sending over a copy of the
instrument of appeal, or by writing to the correspondent an account
only of the time and substance of the sentence.
Upon an appeal, fresh evidence may be introduced, if, upon hearing,
the Lords of Appeal should be of an opinion that the cause is of such
doubt, or that further proof ought to have been ordered by the court
below.
Further proof usually consists of affidavits made by the asserted
proprietors of the goods, in which they are sometimes joined with
their clerks, and others acquainted with the real transactions, and
with the real property of the goods claimed. In corroboration of these
affidavits, may be annexed the original correspondence, duplicates of
bills of lading, invoices, extracts from books, &c. These papers must
be proved by affidavits of persons who can speak of their
authenticity; and if copies or extracts, they should be collected and
certified by public notaries. The affidavits are sworn before
magistrates, or others competent to administer oaths in the country
where they are made, and authenticated by a certificate from the
British Consul.
The degree of proof required depends upon the degree of suspicion or
doubt that belongs to the case. In case of heavy suspicion and great
importance, the court may order what is called "plea and proof," that
is, instead of admitting affidavits and documents introduced by the
claimant only, each party is at liberty to allege, in regular
pleadings, such circumstance as may tend to acquit or condemn the
capture, and to examine witnesses in support of the allegation, to
whom the opposite party may administer interrogatories. The
depositions of the witnesses are taken in writing. If the witnesses
are to be examined abroad, a commission issues for that purpose; but
in no case is it necessary for them to come to England. These solemn
proceedings are seldom resorted to. Standing Commissions may be sent
to any neutral country for the general purpose of receiving
examinations of witnesses, in all cases where the court may find it
necessary, for the purposes of justice, to decree an enquiry to be
conducted in that manner.[100]
[Sidenote: Prize Jurisdiction.]
The Jurisdiction over Prizes is exercised by the Judge of the
Admiralty, exclusively of every other judicature of the kind, except
in cases of appeal.
This Jurisdiction in matter of Prize, (whether it is coeval with the
Court of Admiralty, or, which is much more probable, of a later
institution, beyond the time of memory,) though exercised by the same
person, is quite distinct in its nature.
The Judge of the Admiralty is appointed by a commission under the
great seal, which enumerates particularly, as well as generally, every
object of his jurisdiction, but not a word of prize.
To constitute that authority, in every war, a commission under the
great seal issues to the Lord High Admiral to will and require the
Court of Admiralty, and the Lieutenant and Judge of the said court,
his surrogate or surrogates, and they are thereby authorised and
required to proceed upon all and all manner of captures, seizures,
prizes, and reprisals, of all ships and goods that are or shall be
taken, and to hear and determine according to the Courts of Admiralty
and the Law of Nations.
A warrant issues to the judge accordingly.
The Court of Admiralty is called the Instance Court; the other the
Prize Court. The manner of proceeding is totally different. The whole
system of litigation and jurisprudence in the Prize Court is peculiar
to itself.
[Sidenote: Common Law Courts not always excluded]
A thing being done on the high seas does not exclude the jurisdiction
of the Courts of Common Law. For seizure, stopping, or taking a ship
upon the high seas, but _not as prize_, an action will lie; but for
taking as _prize_, no action will lie. The nature of the question, not
the locality, excludes.
The end of a Prize Court is to suspend the property till condemnation,
to punish every sort of misbehaviour in the captors; to restore
instantly (full sail) if upon the most summary examination there does
not appear a sufficient ground; to condemn finally, if the goods
really are prize, against everybody; giving every body a fair
opportunity of being heard. A captor may, and must force everybody
interested to defend; and every person interested may force him to
proceed to condemn without delay.[101]
[Sidenote: Prize Courts.]
Before the sixth of the reign of Queen Anne there were no laws made on
this subject. Previous to that time all prizes taken in war were of
right vested in the Crown, and questions concerning the property of
such prizes were not the subject of discussion in courts of law. But
in order to do justice to claimants, from the first year after the
Restoration of Charles the Second, special commissions were issued to
enable the Courts of Admiralty to condemn such captures as appeared to
be lawful prizes; to give relief where there was no colour for taking;
and generally to make satisfaction to parties injured. By the Act of
the 13 Car. II. c. 9, (now repealed) indeed, some regulations were
made concerning the treatment of ships taken, but no provisions
enacted respecting any security to be given on delivery; the sole
interest in the thing condemned being in the Crown; it was in public
custody, and the disposition of it a mere matter of prerogative; no
such provisions therefore were necessary.
But in the sixth year of Queen Anne, it was thought proper, for the
encouragement of seamen, to vest in them the prizes they should take;
and for that purpose the statutes, 6 Anne, c. 13 and c. 37, were
passed.
The first of these acts only relates to proceedings in the Courts of
Admiralty in England, but contains no particular directions to them;
the practice of those courts being already settled.[102]
There is a long series of statutes, which follows the above, on the
subject of the Prize Courts. The following may be taken as a general
description of their operation.
The judge should proceed, according to their form, to sentence with
all possible expedition. If on the preparatory examination there
arises a doubt in the breast of the judge, whether the capture is
prize or not, and further proof appears to be necessary, the ship and
cargo is appraised by persons named on the part of the captor, and is
delivered up to the claimants, on their giving good and sufficient
security to pay to the captor the full value, according to the
appraisement, if the ship is adjudged lawful prize by the judge; by
this the claimant is entitled to the immediate possession of the
subject in dispute, which the captor cannot obtain but on the refusal
of the claimant to give security for the appraised value. After a
sentence of condemnation, the captor has a right to the possession;
the execution of the sentence is not suspended by an appeal, but the
party appellant gives good and sufficient security to restore the
cargo, or its full value, in case the sentence is reversed.[103]
[Sidenote: Where Prize Courts can be held.]
Having explained shortly the operation of the Prize Courts, it must be
observed, that the Prize Court of an Ally cannot condemn. Prize or no
prize is a question belonging exclusively to the courts of the country
of the captor. The reason is, that the Sovran has a right and is bound
to inspect the conduct of the captors, for he is answerable to other
states for the acts of the captor. The Prize Court of the captor may
sit in the country of a co-belligerent or an ally, because there is a
common interest between such on the subject, and both governments may
be presumed to authorize any measures conducing to give effect to
their arms, and to consider each others ports as mutually
subservient.[104]
It is not lawful for such a court to act in a neutral territory; and
it was at one time even doubted, where property had been carried into,
and was lying in a neutral port, whether the validity of the capture
could be determined even by a Court of Prize established in the
captor's country; because it was thought that the possession in reach
of the court was essential to the exercise of a jurisdiction in a
proceeding _in rem_. The principle was admitted by Sir Wm. Scott to be
correct, in the case of the Henrick and the Maria;[105] but he
considered that the English Admiralty had gone too far in supporting
condemnations in England, of prizes abroad in neutral ports, to permit
him to recall the vicious practice of the Court to acknowledged
principle.
[Sidenote: Judgments of Prize Courts conclusive.]
The jurisdiction of the Court of the capturing nation is conclusive
upon the question of property in the captured thing. Its sentence
settles all further dispute between claimants; and if that sentence is
manifestly unjust, or against the Law of Nations, the state is alone
responsible, and not the captors. An unjust sentence is a good ground
for issuing commissions of Reprisals. Numerous treaties between the
different powers of Europe, regulating the subject of Reprisals,
declare that they shall not be granted, unless in case of the _denial
of justice_. "An unjust sentence," says Wheaton, "must certainly be
considered as a denial of justice, unless the mere privilege of being
heard before condemnation is all that is included in the idea of
justice."[106]
Thus the sentence of a Prize Court, it is plain, is sufficient to
confirm the captor's title to captures at sea; but a different rule
applies to real property or immoveables.
Immoveable possessions, lands, towns, provinces, &c., become the
property of the enemy who makes himself master of them; but it is only
by the treaty of peace, or the entire subjugation and extinction of
the state to which those towns and provinces belonged, that the
acquisition is completed, and the property becomes stable and perfect.
Thus, a third party cannot safely purchase conquered land till the
Sovran from whom it has been taken has renounced it by a treaty of
peace, or has irretrievably lost his sovereignty.[107] Until such
confirmation, it continues liable to be divested by the _jus
postliminii_. The purchaser of any portion takes it, at the peril of
being evicted by the original Sovran owner, when he is restored to his
dominions.[108]
I now pass on to the more commercial question of Passports,
Safe-Conducts, and Licences to Trade.
SECTION III.
_Licences_.
[Sidenote: Passports and Safe Conducts]
Passports, and Safe-conducts, are a kind of privilege, insuring safety
to persons in passing and repassing, or to certain things during their
conveyance from one place to another. All Safe-conducts, like every
other act of Supreme Command, emanate from the Sovran authority, but
are constantly delegated to inferior officers, either by an express
commission, or by a natural consequence of the nature of their
functions. The person named in the Passport cannot transfer his
privilege to another. They generally promise security wherever the
grantor has authority and command, and are interpreted by the same
rules of liberality and good faith, with other acts of the Sovran
power.[109]
[Sidenote: Licences to Trade with the Enemy]
A Licence granted by a state to its own subjects, or to those or the
enemy, is a dispensation on its own side of the Laws of War, as far as
its terms can be fairly construed. The adverse party may justly
consider such licence as a ground of capture and confiscation _per
se_; but the Prize Courts of the state, under whose authority they are
issued, are bound to consider them as lawful relaxations of the
ordinary state of war. In the country which grants them, licences to
carry on a pacific commerce are rigidly interpreted, as being
exceptions to a general rule; though they are not to be construed with
pedantic accuracy, nor will every small deviation be held to vitiate
the fair effect of them.[111]
During the later period of the last century, and the earlier portion
of this, licences were considered as privileges granted to individuals
for their own benefit, and in which the nation at large was but
little, or remotely, interested. They were therefore held liable to
the same strict construction with other similar grants. Yet this rule
was never held in a narrow captious manner; and if the apparent
intention of Government was complied with, and there was no suspicion
of fraud, a sufficient liberality was allowed in the construction.
When the extraordinary mode of warfare established by the Emperor
Napoleon, (by an attempt at a general embargo) was carried on, new
expedients were required to counteract its evils, and licences to a
great extent were granted to relieve the stagnant trade of the
country; and this measure, so highly beneficial, and even necessary,
was facilitated by the adoption of a still more liberal mode of
construction, and which, no doubt, will again guide these cases.[112]
[Sidenote: Duties of Merchants using Licences]
In trading under a Licence, the merchant ought to follow the terms or
it as strictly as possible; but if he is acting _bonâ fides_, some
breaches of it will be permitted. Being high acts of Sovranty, they
are necessarily the creatures of that act of power, and must not be
carried further than the intention of the great authority that grants
them may be supposed to extend; not that they are to be construed with
pedantic accuracy, nor that any small deviation should be held to
vitiate the fair effect of them. An excess in the _quantity_ of goods
permitted might not he considered noxious to any extent. A variation
in the quality or substance of the goods might be more significant,
because a liberty assumed of trading in one species of goods, under a
license to trade in another, might lead to very dangerous abuses. The
license must be looked to for the enumeration of goods that are to be
protected by it.[113]
The principles on which courts act in treating licences is thus
succinctly laid down by Sir William Scott.--
"I need not repeat what I have so often stated, the anxious
wish of this court to relieve, as much as possible, the
difficulties under which the commerce of the world now
labours (November 1812,) and to apply the most favourable
consideration to the construction of license cases. At the
same time it is to be remembered, that the court possesses
the mere power of interpretation; that it must confine
itself to a reasonable explanation of the terms made use of,
and cannot alter or dispense with conditions considered as
essential by the Government granting the license. If the
court assumes the power of extension by favourable
interpretation, it does so only where there is a total
absence of _bad faith_, and where unavoidable obstacles have
been thrown in the way of an exact compliance with the terms
prescribed. Where there has been a want of good faith, or a
departure from the terms, beyond the necessity thus imposed,
the court has not felt itself called upon to mitigate the
penalties incurred by such a deviation."[114]
[Sidenote: The Vessel.]
It is not an essential deviation from the licence, if ships of other
countries than those designated in the license are employed; provided
those other countries have the same political bearing towards this
kingdom as those mentioned in the licence. But it is not a matter of
indifference to substitute a ship belonging to a country at war, for a
neutral or native ship, at the will and pleasure of the holder of the
licence.[115]
Where an enemy's ship was represented to be neutral, and under that
disguise obtained a licence and was navigated, the ship and freight
were condemned; and the cargo would have been involved in the same
fate had it been shown that the owner of the cargo was privy to the
fraud.[116]
A licence to trade in neutral bottoms does not extend to British
ships.[117]
[Sidenote: The Cargo.]
The exportation of the produce and manufactures of this country is
undoubtedly of great importance; but in time of war, it may be a
matter of serious injury to the kingdom, if the commerce of the enemy
is to be carried on in security under the abuse of British licences.
The Courts of Admiralty and Prize, therefore, as far as lie in their
power, guard against the fraudulent application of licences.
The following are a few practical rules for the guidance of
merchants:--
1. Where the goods are enumerated in the licence, the best endeavour
ought to be made to follow that enumeration. It is _not_ a fatal
departure from the licence to take on board non-enumerated articles,
if done so by mistake, or inadvertence; but an essential and
fraudulent departure from the conditions of the licence is a total
defeasance of it.[118]
2. When a licence is granted to _one_ person, it cannot be made to
extend to the protection of all other persons who may be permitted by
that person to take advantage of it.[119]
3. Where A and B have obtained a licence to import, _as for
themselves, or their agents, or the bearers of their bill of lading_,
the only persons entitled to act under that licence, are A and B, as
_importers_, or their agents, or persons holding their bills of
lading, and claiming under bills of lading, which A and B, _after
having conducted the importation from the enemy on their own account_,
have transferred to them.[120]
4. Under a licence to _import_, the British merchant must not also be
the _exporter_. He is not permitted under such a licence to go to the
enemy's country, and there act as an enemy's merchant, carrying on the
export trade of that country.[121]
5. Sometimes, in describing the property in licences, the privilege is
extended to all property of a certain class, "to whomsoever the
property may appear to belong." In such cases no enquiry is ever made
as to the proprietary interest in the property; but if the words are
not introduced into the licence, it does not protect enemy's
property.[122]
[Sidenote: The Voyage.]
In the Voyage, also, the merchant must follow the licence. It is
vitiated by changing the place of shipment. Thus, where a licence was
to bring away a cargo from Bordeaux, and the party thought proper to
change the licence, and accommodate it to another port in France, it
was held by the English Admiralty that the licence was vitiated, and
the vessel and cargo were condemned.[123]
Enemies trading to the ports of this country must strictly comply with
the conditions under which that permission is granted. No voluntary
deviation from the _course_ pointed out can on any account be
tolerated; except under the pressure of irresistible necessity. The
character of enemy revives, when such a trader so deviates from his
appointed course, even if there is no _malâ fides_, and he runs all
the perils of an enemy on an English coast.[124]
It is a violation of a licence to touch at an intermediate port under
a licence for a direct voyage to this country, the presumption being
that at the intermediate port the vessel might receive another
destination, or might actually deliver her cargo in that port.[125]
[Sidenote: Time.]
Of course when the period for which a licence has been granted has
expired, it no longer has any operation; yet in cases in which parties
have used due diligence, but have been prevented by accident from
carrying their intentions into effect within the time, it has been
holden that, though their licences have expired, they are entitled to
protection.[126]
A licence cannot be _ante dated_, and if granted subsequent to capture
it is no protection against condemnation. It is in its very nature
prospective, pointing to something which has not yet been done, and
cannot be done at all without such permission. Where the act has
already been done, and requires to be upheld, it must be by an express
confirmation of the act itself, as by an indemnity granted to the
party; but a licence necessarily looks to that which remains to be
done, and can extend its influence only to future operations.[127]
Note.--It has been before pointed out, that the Queen has, by her
prerogative, the power of granting licences. But the Navigation Laws
could not, of course, be dispensed with by the royal prerogative.
Various acts, therefore, were passed to alter or qualify them,
according to the new condition of things which was produced in time of
war. These acts expired with the several wars that suggested them; but
the almost total repeal of the celebrated Navigation Laws will render
the re-enactment of similar war measures almost unnecessary.
SECTION IV.
_Ransom, Recaptures, and Salvage_.
[Sidenote: Ransom.]
Sometimes circumstances will not permit property captured at sea to be
sent into port; and the captor, in such cases, may either destroy it,
or permit the original owner to redeem it.
It was formerly the general custom to redeem property from the hands
of the enemy by Ransom, and the contract is undoubtedly valid, when
municipal regulations do not intervene. It is now but little known in
the commercial law of England, for several statutes in the reign of
George the Third absolutely prohibited British subjects the privilege
of ransom of property captured at sea, unless in a case of extreme
necessity--to be judged of by the Court of Admiralty.[128]
These contracts are generally drawn up at sea, and by virtue of them,
the captain of the captor engages for the release and safe conduct of
the taken ship, in consideration of a sum of money, which the master
of the captured vessel, on behalf of himself and the owners of his
ship and cargo, engages to pay, and for the payment of which he
delivers a hostage as security. The contract is drawn up in two parts,
of which the captor has one, which is called the ransom bill; the
master of the captured vessel has the other, which operates as his
safe conduct.
By the French law this safe conduct only protects the vessel to its
own port, or its port of destination, if nearer that. In other
countries the pass allows the ship to continue its voyage; but
operates only to protect the vessel in the course prescribed, and
within the time limited by the contract. It protects only against
capture, unless by agreement it provides also against _total loss_ by
perils of the seas.
During war, and while the character of alien enemy continues, no suit
will lie in the British Courts by the enemy, in proper person, on a
ransom bill, notwithstanding it is a contract arising out of the law
of war. The remedy to enforce payment of the ransom bill for the
benefit of the enemy captor, is by an action by the imprisoned
hostage, in the courts of his own country, for the recovery of his
freedom.
The hostage consists generally of one or two principal officers of the
captured prize, more generally one only.
As the ransom is in the nature of a pledge, the ransom cannot exceed
the value of the ship, so that the master cannot bind his owner for a
larger value; and on the same principle, the captor is bound to take
the vessel or its value if abandoned by the owner, or what it sells
for if the owner is insolvent. He is also bound to maintain the
hostage, and that is an item in the ransom bill. In estimating the
ransom and expenses of the hostage as a damage or loss, they are
regarded in the nature of general average, and the several persons
interested in the ship, freight, and cargo, must all contribute
towards them.[129]
[Sidenote: Recaptures.]
Although in strictness _every_ prize legally made, may be adjudged to
the captor, yet there are cases where he ought to restore, wholly, or
in part, that which he may legally have taken from the enemy. This is
the case of recaptures.
According to the universal law of nations, the question whether the
recapture ought to be restored to the first proprietor, seems to
depend essentially on another, namely, whether the captor has become
full proprietor of the prize, _to the total extinction_ of the rights
of the first proprietor. If we admit that he may have become so, there
would be no further perfect and external obligation on the _recaptor_
to restore property which has become that of the enemy; and on which
the first proprietor has lost all claim. There may be a thousand
reasons of equity why he should not enrich himself by the spoil of his
fellow citizens or friends; but then, that restitution would not be
according to the strict rule of natural law; if indeed all claim had
so passed away.
The captor has, without doubt, a right to take away the enemy's goods.
He may, without troubling himself with the proprietor's rights, detain
them, with intent to appropriate to himself, in the same manner, in
every respect, as he may seize _res nullius_ in the time of peace; but
it does not follow from thence that the effect of these two actions is
the same, when applied to objects of so different a condition, or that
the right of war alone, without cession or renunciation, is a title
sufficient for a full property.
By the Laws of War the right and power _of possession_ is in the
captor; the _right of property_ remains in the proprietor. This right
of war, which is personal in the captor, not being capable of cession,
cannot bind a third person, who acquires the prize by recapture during
war; and nothing prohibits the original proprietor from prosecuting
his rights against him; accordingly, without making any distinction
between conquest, booty, or prize; the goods taken by the enemy,
however legal that capture might be, however certain the possession of
them might be, do not become his full property till the moment of
peace; and that during the whole course of the war it may be claimed
by the first proprietor from the hands of every third possessor. From
this it follows that every recapture, made at any period of the war
whatever, whether the capture may have been legal, or whether it may
have been illegal; whether the recapture be made by a Sovran, or by a
privateer; ought to be restored to the original owner on a just
repayment of the costs and damages of every recaptor, unless the
illegality of the recapture precludes the recaptor from the privilege
of demanding the indemnification.[130]
[Sidenote: Salvage.]
The costs and damages paid to the recaptor are termed Salvage. It was
the ancient law of this country, that a possession of twenty-four
hours was a sufficient conversion of the property, and unless it was
reclaimed before _sundown_, the owner was divested of his property.
Thus there was a complete obliteration of the rights of former owners.
This was the ancient law of England, and was in accordance with the
ancient law of Europe.
This rule has been receded from in this country, since the increase of
her commerce. During the time of the usurpation, when England was
becoming commercial, an alteration was effected by the ordinance of
1649, which directed a restitution, upon salvage, to British subjects;
and the same indulgent rule was continued afterwards, when this
country became still more commercial.
This country, as a commercial country, has thus departed from the old
law, and has made a new and peculiar law for itself, in favour of
merchant property recaptured, introducing a policy not then introduced
by other countries, and differing from its own ancient practice.
[Sidenote: Recaptures converted into Ships of War are not restored.]
There is one exception to this law. The Prize Act provides that if a
recaptured ship, originally taken by her Majesty's enemies, shall
appear to have been by them "_set forth as a ship or vessel of war_,"
the said ship or vessel shall not be restored to the former owners or
proprietors; but shall, in all cases, whether retaken by any of Her
Majesty's ships, or by any privateer, be adjudged lawful prize for the
benefit of the captors. When the former character of the vessel has
been once obliterated by her conversion into a ship of war, the title
of the former owner, and his claim to restitution, are extinguished,
and cannot be revived by any subsequent variation of the character of
the vessel.
_Setting forth_ does not necessarily mean sending out of port with a
regular commission. It is sufficient if she has been used as part of
the _national_ force of the enemy, by those in _competent_
authority.[131]
[Sidenote: Capture a material question in cases of Recapture.]
As it has been stated above, in cases of recapture, the material
question is, whether there was such a capture made by the enemy, as to
found a case of re-capture.
This is settled by the question whether the enemy have an effectual
possession; by this is not meant the _complete_ and firm possession
obtained by condemnation in a Court of Prize, but that effectual
possession, that if not interrupted by recapture, would have enabled
the captor to exercise rights of war over her. For this purpose it is
not necessary that the possession should be _long_ maintained. The
following are some examples of such effectual possession.
An English merchantman, separated from her convoy during a storm, was
brought to by an enemy's lugger, which came up and told the master to
stay by her till the storm was abated, when they would send a man on
board; a British frigate coming up afterwards chased the lugger and
took her, thus releasing the merchantman; the frigate was held
entitled to salvage.[132]
But when a small English vessel, armed with two swivels, forced a
privateer row-boat from Dunkirk to strike, but was not able to board
her, because the English vessel has only three men, and no arms but
the swivels,--the Frenchman being filled with a well armed crew; and
subsequently, the row-boat was forced to put into the port of Ostend,
then the port of an ally; this might not be a capture under the act,
so much as it was under the general maritime law.
A vessel brought out of port, and which was in the power, though not
in the actual occupation of the enemy, was thus rescued from
considerable peril, was held to be recaptured.[133]
Similarly, with a vessel abandoned by the enemy, having possession of
her, through the terror of an approaching force.[134]
There is no claim to Salvage where the property rescued was not in the
possession of the enemy, or so nearly as to be certainly and
inevitably under his grasp.
[Sidenote: Recapture of Property of Allies.]
England restores the Recaptured Property of her Allies, on the payment
of salvage; but if instances can be given of British property retaken
by them, and condemned as prize, the Court of Admiralty will determine
their cases according to their own rule.[135]
[Sidenote: Recapture of Neutral Property.]
It is not the practice of modern nations to grant Salvage on the
Recapture of Neutral Vessels; and upon this plain principle, that the
liberation of a clear neutral from the hand of the enemy, is no
essential service to him; for the enemy would be compelled by the
tribunals of his own country, after he had carried the neutral into
port, to release him with costs and damages, for the injurious seizure
and detention. This proceeds on the supposition, that those tribunals
would duly respect the law of nations; a presumption which, in the
wars of civilized states, each belligerent is bound to entertain in
their respective dealings with neutrals. But in the wild hostilities
declared and practised by France in the Revolutionary War, there was a
constant struggle between the governing powers of France and the
maritime courts, which should most outrage the rights of neutral
property; the liberation of neutral property out of their hands then
came to be deemed, not only by Lord Stowell, but by the neutrals
themselves, a substantial benefit; and salvage for such service was
not only awarded, but thankfully paid.[136]
[Sidenote: Jus Postliminii.]
The rule by which things taken by the enemy are restored to their
former owner, upon coming again under the power of the nation to which
they formerly belonged, is termed _jus postliminii_, or the right of
postliminy. Real property, which is easily identified, is more
completely within the right of postliminy than moveable property,
which is more transitory in its nature, and less easily recognized.
During war, the right of postliminy can only be claimed in the
tribunals of the belligerent powers, and not in the courts of
neutrals; for by a general law of nations, neutrals have no right to
enquire into any captures, except such as are an infringement of their
own neutrality.[137]
[Sidenote: Costs and Damages to Owners for invalid Seizures.]
It often happens that captains of ships of war and privateers make
seizures of native or neutral vessels, under the impression that such
vessels are occupied in illicit trade or other condemnatory acts. This
may arise from error, and in such cases the vessel is restored to the
owner by the prize court; but still there may be circumstances
justifying the seizure, though not condemnation; and if condemnation
is not granted, the owner sets up a claim for any damage that may have
occurred to his vessel.
And the rule is, that where the capture is not justifiable, a captor
is answerable for every damage.[138]
But if a seizure is justifiable, all that the law requires is that the
captor shall be held responsible for _due diligence_; it is not enough
that the captor should use as much caution as he would in his own
affairs, the law requires that there should be no _deficiency of due
diligence_.[139]
When property is confided by an owner to another person, the care that
the owner would take of his own property may be a reasonable criterion
of the care that he may expect his agent to take. But in the case of
capture, there is no confidence reposed, nor any voluntary election of
the person in whose care the property is left. It is a compulsory act
of justifiable force, but still of such force as removes from the
owner any responsibility for the imprudent conduct of the
prize-master. Hence, where the prize-master refused to take a pilot,
and the ship and cargo were lost, restitution in value was decreed.
CHAPTER III.
SECTION I.
_Neutrality_.
[Sidenote: Rights of Neutral Nations.]
It now only remains for me to place before the reader the Rights and
Obligations of Neutral Nations, as they influence Commerce.
Neutral Nations are those who, in time of war, take no part in the
contest, but remain common friends to both parties, without favouring
the arms of the one to the prejudice of the other.[140]
Neutrality consists in--1st, Giving no assistance when there is no
obligation to give it; nor voluntarily to furnish troops, arms,
ammunition, or anything of direct use in war. 2ndly, In whatever does
not relate to war, a neutral and impartial nation must not refuse to
one of the parties (on account of his present quarrel) what she grants
to the other.[141]
[Sidenote: Qualified Neutrality.]
These rules do not apply to engagements by treaty, to which the
Neutral may be bound previous to war; as for example, an engagement to
furnish one of the belligerent parties with a _limited_ succour in
money, troops, ships, or munitions of war, or to open his ports to the
armed vessels of his ally with his prizes.[142]
Neutrality, again, may be qualified by treaties (antecedent to war),
to admit vessels of war, with their prizes, of one of the belligerent
parties, into the neutral's ports, to the complete or limited
exclusion of the other.
[Sidenote: Neutral Territory protected.]
The Rights of War can be exercised only within the territory of the
belligerent powers, upon the high seas, or in a territory belonging to
no one. To make use of neutral territory for the _proximate_ purposes
of war cannot be allowed, although it is to be understood that the
prohibition does not extend to remote objects and uses, such as
procuring provisions, and other innocent articles.[143]
The sanctity of a claim of territory is very high. When the fact is
established, it overrules every other consideration; the property
taken must be restored, notwithstanding that it belongs to the enemy;
and if the captors should have erred wilfully, and not merely through
ignorance, he would be subject to further punishment. It is however, a
point on which foreign states are very likely to be misinformed and
abused, by the interested representations of those who are anxious to
catch at their protection. The claim of territory is, therefore, to be
taken according to the letter of the law, and to be made out by clear
and unimpeached evidence. The right of seizing the property of the
enemy is a right which extends, generally speaking, _universally_,
wherever that property is found. The protection of neutral territory
is an exception only to the rule; it is not therefore to be considered
disrespectful to any government that the fact, on which such claims
are founded, should be accurately examined.[144]
The neutral territory is supposed to extend three English miles from
the shore.[145]
[Sidenote: Property of Belligerents in Neutral Territory.]
But the general inviolability of neutral character goes further than
merely the protection of neutral property. It protects the property of
belligerents within the neutral territory. Thus, if the enemy be
attacked, or any capture made under neutral protection, the neutral is
bound to redress the injury, and effect restitution. As for example,
in 1793, the English ship Grange was captured in Delaware Bay, by a
French frigate, and upon due complaint, the American Government caused
the British ship to be promptly restored. Similarly, in the case of
the Anna, restoration was made of property captured by a British
cruizer near the mouth of the Mississippi, and within the jurisdiction
of the United States.[146]
An armed ship has no right to lie in a neutral harbour, in order to
make it an habitual _station_ for her captures, as that would be a
continuous direct infringement on neutral trade with the enemy; but if
she is accidentally in a neutral port, and sees an enemy coming, she
may go out and fight, or take her, beyond the range of neutral
ground.[147] Nor ought captors to station themselves at the mouth of a
neutral river for exercising the rights of war from that river, much
less in the very river itself.[148]
The doctrine is carried to the extent that no use of a neutral
territory for the purposes of war is to be permitted; this does not
include _remote_ uses, such as procuring provisions and refreshments,
and acts of that nature, which the law of nations universally
tolerates; but that no _proximate_ acts of war, in any manner, are to
be allowed to originate on neutral grounds;--thus a ship has no right
to station herself in neutral waters, and then to send out her boats
on hostile enterprises beyond the boundary. This is a _direct hostile
use_ of the neutral territory, and many instances have occurred in
which such an irregular use of neutral territory has been warmly
resented. Nor can the neutral, in true consistency with his
neutrality, permit such a course of war.[149]
[Sidenote: Vessels chased into a Neutral Port.]
Bynkershoek has maintained the anomalous principle, that vessels may
be chased into a Neutral Territory, and there captured; but there is
in reality no exception to the rule, that every voluntary entrance
into a neutral territory, with hostile purposes, is absolutely
unlawful.
But this restoration takes place only on the application of the
neutral government whose territory has been thus violated, the
neutrality alone being the ground of the invalidity of the
capture.[150]
[Sidenote: Consent of Neutral State necessary.]
Though a belligerent vessel may not enter within neutral jurisdiction
for hostile purposes, she may, consistently with a state of neutrality
(unless prohibited by the neutral power), bring her prize into the
neutral port and sell it there.
[Sidenote: Freedom of Neutral Commerce.]
A neutral has a right to pursue his accustomed commerce, and he may
become the carrier of the enemy's goods, without being subject to
confiscation of the ship, or of the neutral articles on board; though
not without the risk of having the voyage interrupted by the seizure
of the hostile property. If we find an enemy's effects on board a
neutral ship, we seize them by right of war; but we are naturally
bound to pay the freight to the master of the vessel, who is not to
suffer by such seizure.[151]
The effects of neutrals found in an enemy's ship, are to be restored
to the owners, against whom there is no right of confiscation,--but
without allowance for detainder, decay, &c. Neutrals voluntarily
expose themselves to these accidents by embarking their goods in a
hostile ship.[152]
We have before mentioned that neutral ships do not afford protection
to an enemy's property. It may be seized if found on board of a
neutral vessel, _beyond the limits of the neutral jurisdiction_. This
is a clear and well-settled principle of the Law of Nations.
When an enemy's ship, containing free goods, is taken, if the captor
carries the goods to the port of destination, he is entitled to the
freight. He stands in the place of the _owner of the ship_, and
performs (by completing) the specific contract between the owner and
charterer. But he _is not_ entitled, if he does _not_ proceed and
perform the original voyage.[153] The specific contract is performed
in the one case, and not in the other. But freight will be allowed to
the captor, even though he does not carry the goods to the port of
destination, if he carries them to his own country, and to the ports
to which they would have been consigned, if not prevented by the
regulations of the country of embarkation.[154]
Under certain circumstances the _Captor_ is considered entitled to
Freight, even though the goods are carried to his own country, and
restored.
If the captor does anything to injure the property, or is guilty of
misconduct, he may remain answerable for the effect of such misconduct
or injury, in the way of set-off against him.[155]
No right of _visitation_ and search, of capture, nor any other kind of
belligerent right, can be exercised on board a _public neutral_ vessel
on the high seas. But _private_ vessels form no part of neutral
territory, and when within the limits of another state, are not exempt
from local jurisdiction.[156]
The right to take enemy's property on board a neutral ship has been
much contested by particular nations, whose interests it strongly
opposed. This rule has been steadily maintained in Great Britain,
though in France and other countries it has been fluctuating. For the
first time, England has voluntarily abandoned this right in the
present war.
If a neutral vessel, having enemy's goods on board, is taken, and
there is nothing unfair in the conduct of the neutral master, he will
even be entitled to his reasonable demurrage. The captor pays the
whole freight, because he represents the enemy, by possessing himself
of the enemy's goods by right of war; and although the whole freight
has not been earned by the completion of the voyage, yet as the
captor, by his act of seizure, has prevented its completion, his
seizure operates to the same effect as an actual delivery of the goods
to the consignee, and subjects him to the payment of the full
freight.[157] In such case, however, the neutral master must have
acted _bonâ fide_, and with strictly neutral conduct.
[Sidenote: This Rule Changed by Convention.]
This Rule is often Changed by Convention; and it is generally
stipulated that "_free ships shall make free goods_." The converse,
though also sometimes the subject of treaty, does not of necessity
hold, _enemy's ships do not make enemy's goods_. Goods of neutrals,
found on enemy's ships, are bound to be restored.[158]
A neutral subject is at liberty to put his goods on board a merchant
vessel, though belonging to a belligerent, subject nevertheless to the
rights of the enemy who may capture the vessel; who has no right,
according to modern practice, to condemn the neutral property. Neither
will the goods of the neutral be subject to condemnation, although a
rescue should be attempted by the crew of the captured vessel, for
that is an event which the merchant could not have foreseen.[159]
[Sidenote: Neutral Goods on _Armed_ Hostile Vessels.]
In America, Neutral Goods laden on an _Armed_[160] Belligerent Vessel
are still protected, but in England it is different. "If the neutral,"
says Sir Wm. Scott,
"puts his goods on board a ship of force, which will be
defended by force, he betrays an intention to resist
visitation and search, and so far adheres to the
belligerent, and withdraws himself from his protection of
neutrality."[161]
[Sidenote: The Sale and Purchase of Vessels by Neutrals.]
The Purchase of Ships from the enemy, is a liberty that has not been
denied to neutral merchants, though by the regulation of France, it is
entirely forbidden. The rule that this country has been content to
apply is, that property so transferred, must be _bonâ fide_ and
absolutely transferred; there must be a sale divesting the enemy of
all further interest in it; and that any thing tending to continue his
interest, vitiates a contract of this description altogether.[162]
Russia is reported to have several vessels of war in different parts
of the world; some of these vessels have been sold, and others are
said to be in the process of sale. I shall cite what Sir Wm. Scott
says, on a case nearly similar.
"There have been many cases of enemy _merchant vessels_
driven into ports out of which they could not escape, and
there sold, in which after much discussion, and some
hesitation of opinion, the validity of the purchase has been
sustained. But whether the purchase of a vessel, _built for
war_, and employed as such, and rendered incapable of acting
as a ship of war, by the arms of the other belligerent, and
driven into a neutral port for shelter; whether the purchase
of such a ship can be allowed, which shall enable the enemy
so far to rescue himself from the disadvantage into which he
has fallen, as to have the value restored to him by a
neutral purchaser, is a question on which I shall wait for
the authority of a superior court, before I admit the
validity of such a transfer."[163]
It has been said that the sale must be absolute and unconditional; so
that a sale under a condition to re-convey at the end of the war, is
invalid.[164] Similarly, where the seller is bound by his own
government under a penalty not to sell, except upon a condition of
restitution at the end of the war, and the purchaser undertook to
exonerate the seller, the sale was held invalid.[165]