are so invested, to the exclusion of any claims of interest which persons resident in neutral countries may actually have in them. But where the cargo is laden on board in time of peace, and documented as foreign property, in the same manner with the ship, with the view of avoiding alien duties, the sailing under the foreign flag and pass is not held conclusive as to the cargo. A distinction is made between the ship, which is held bound by the character imposed upon it by the authority of the government from which all the documents issue, and the goods, whose character has no such dependence upon the authority of the state. In time of war, a more, strict principle may be necessary; but where the transaction takes place in peace, and without any expectation of war, the cargo ought not to be involved in the condemnation of the vessel, which, under these circumstances, is considered as incorporated into the navigation of that country whose flag and pass she bears.43 license. We have already seen that no commercial intercourse § 22. Sailing can be lawfully carried on between the subjects of states at under the war with each other, except by the special permission of enemy's their respective governments. As such intercourse can only be legalized in the subjects of one belligerent state by a license from their own government, it is evident that the use of such a license from the enemy must be illegal unless authorized by their own government; for it is the sovereign power of the state alone which is competent to act on the considerations of policy by which such an exception from the ordinary consequences of war must be controlled. And this principle is applicable not only to a license protecting a direct commercial intercourse with the enemy, but to a voyage to a country in alliance with the enemy, or even to a neutral port; for the very act of purchasing or procuring the license from the enemy is an intercourse with him prohibited by the laws of war: and even supposing it to be gra 43 Robinson's Adm. Rep. vol. i. p. 1. The Vigilantia. Vol. v. p. 161. The Vrow Anna Catharina. Dodson's Adm. Rep. vol. i. p. 131. The Success, ! tuitously issued, it must be for the special purpose of furthering the enemy's interests, by securing supplies necessary to prosecute the war, to which the subjects of the belligerent state have no right to lend their aid by sailing under these documents of protection.44 44 Cranch's Rep. vol. viii. p. 181. The Julia. P. 203. The Aurora. Wheaton's Rep. vol. ii. p. 143. The Ariadne. Vol. iv. p. 100. The Caledonia. CHAPTER II. RIGHTS OF WAR AS BETWEEN ENEMIES. § 1. Rights of war against In general, it may be stated, that the rights of war, in respect to the enemy, are to be measured by the object of the war. Until that object is attained, the belligerent has, an enemy. strictly speaking, a right to use every means necessary to accomplish the end for which he has taken up arms. We have already seen that the practice of the ancient world, and even the opinion of some modern writers on public law, made no distinction as to the means to be employed for this purpose. Even such institutional writers as Bynkershoek and Wolf, who lived in the most learned and not least civilized countries of Europe at the commencement of the eighteenth century, assert the broad principle that every thing done against an enemy is lawful; that he may be destroyed, though unarmed and defenceless; that fraud, and even poison, may be employed against him; and that an unlimited right is acquired by the victor to his person and property. Such, however, was not the sentiment and practice of enlightened Europe at the period when they wrote; since Grotius had long before inculcated milder and more humane principles, which Vattel subsequently enforced and illustrated, and which are adopted by the unanimous concurrence of all the publicists of the present age.1 § 2. The law of nature has not precisely determined how far an individual is allowed to make use of force, either to defend Limits to the rights himself against an attempted injury, or to obtain reparation of war 1 Bynkershoek, Quæst. Jur. Pub, lib. i. cap. 1. Wolfius, Jus Gent. § 878. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 4, §§ 5—7. Vattel, Droit des Gens, liv. iii. ch. 8. against the when refused by the aggressor, or to bring an offender to persons of an enemy. punishment. We can only collect, from this law, the general rule, that such use of force as is necessary for obtaining these ends is not forbidden. The same principle applies to the conduct of sovereign states existing in a state of natural independence with respect to each other. No use of force is lawful, except so far as it is necessary. A belligerent has, therefore, no right to take away the lives of those subjects of the enemy whom he can subdue by any other means. Those who are actually in arms, and continue to resist, may be lawfully killed; but the inhabitants of the enemy's country who are not in arms, or who, being in arms, submit and surrender themselves, may not be slain, because their destruction is not necessary for obtaining the just ends of war. Those ends may be accomplished by making prisoners of those who are taken in arms, or compelling them to give security that they will not bear arms against the victor for a limited period, or during the continuance of the war. The killing of prisoners can only be justifiable in those extreme cases, where resistance on their part, or on the part of others who come to their rescue, renders it impossible to keep them. Both reason and general opinion concur in showing that nothing but the strongest necessity will justify such an act.2 § 3. According to the law of war, as still practised by savage Exchange nations, prisoners taken in war are put to death. Among of prisoners of war. the more polished nations of antiquity, this practice gradually gave way to that of making slaves of them. For this, again, was substituted that of ransoming, which continued through the feudal wars of the middle age. The present usage of exchanging prisoners was not firmly established in Europe until some time in the course of the seventeenth century. Even now this usage is not obligatory among nations who choose to insist upon a ransom for the prisoners taken by them, or to leave their own countrymen in the enemy's hands until the termination of the war. Cartels for the mutual 2 Rutherforth's Inst. b. ii. ch. 9, § 15. exchange of prisoners of war are regulated by special convention between the belligerent states, according to their respective interests and views of policy. Sometimes prisoners of war are permitted, by capitulation, to return to their own country upon condition not to serve again during the war, or until duly exchanged; and officers are frequently released upon their parole, subject to the same condition. Good faith and humanity ought to preside over the execution of these compacts, which are designed to mitigate the evils of war without defeating its legitimate purposes. By the modern usage of nations, commissaries are permitted to reside in the respective belligerent countries, to negotiate and carry into effect the arrangements necessary for this object. Breach of good faith in these transactions can be punished only by withholding from the party guilty of such violation the advantages stipulated by the cartel; or, in cases which may be supposed to warrant such a resort, by reprisals or vindictive retaliation.3 exempt from acts lity. of hosti All the members of the enemy state may lawfully be treat$ 4. ed as enemies in a public war; but it does not therefore fol- Persons low, that all these enemies may be lawfully treated alike; though we may lawfully destroy some of them, it does not therefore follow that we may lawfully destroy all. For the general rule derived from the natural law is still the same, that no use of force against an enemy is lawful, unless it is necessary to accomplish the purposes of war. The custom of civilized nations, founded upon this principle, has therefore exempted the persons of the sovereign and his family, the members of the civil government, women and children, cultivators of the earth, artisans, labourers, merchants, men of science and letters, and generally all other public or private individuals engaged in the ordinary civil pursuits of life, 3 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 7, §§ 8, 9; cap. 11, §§ 9—13. Vattel, Droit des Gens, liv. iii. ch. 8, § 153. Robinson's Adm. Rep. vol. iii. Note, Appendix A. Correspondence between M. Otto, French Commissary of Prisoners in England, and the British Transport Board, 1801. Annual Register, vol. xliv. p. 265. (State Papers.) |