$ 21. Rules for interpreting conventions of truce. the captor is bound, in the case of a suspension of hostilities by sea, to restore all prizes made in contravention of the armistice. To prevent the disputes and difficulties arising from such questions, it is usual to stipulate in the convention of armistice, as in treaties of peace, a prospective period within which hostilities are to cease, with a due regard to the situation and distance of places. 25 Besides the general maxims applicable to the interpretation of all international compacts, there are some rules pecu-liarly applicable to conventions for the suspension of hostilities. The first of these peculiar rules, as laid down by Vattel, is that each party may do within his own territory, or within the limits prescribed by the armistice, whatever he could do in time of peace. Thus either of the belligerent parties may levy and march troops, collect provisions and other munitions of war, receive re-enforcements from his allies, or repair the fortifications of a place not actually besieged. The second rule is, that neither party can take advantage of the truce to execute, without peril to himself, what the continuance of hostilities might have disabled him from doing. Such an act would be a fraudulent violation of the armistice. For example:-in the case of a truce between the commander of a fortified town and the army besieging it, neither party is at liberty to continue works, constructed either, for attack or defence, or to erect new fortifications for such purposes. Nor can the garrison avail itself of the truce to introduce provisions or succours into the town, through passages or in any other manner which the besieging army would have been competent to obstruct and prevent had hostilities not been interrupted by the armistice. The third rule stated by Vattel is rather a corollary from the preceding rules than a distinct principle capable of any separate application. As the truce merely suspends hostilities without terminating the war, all things are to remain in 25 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 21, § 5. Vattel, Droit des Gens, liv. iii. ch. 16, § 239. their antecedent state in the places, the possession of which was specially contested at the time of the conclusion of the armistice. It is obvious that the contracting parties may, by express compact, derogate in any and every respect from these general conditions. § 22. Recom mence hostilities truce. At the expiration of the period stipulated in the truce, hostilities recommence as a matter of course, without any new declaration of war. But if the truce has been concluded for ment of an indefinite, or for a very long period, good faith and hu- on the exmanity concur in requiring previous notice to be given to the piration of enemy of an intention to terminate what he may justly regard as equivalent to a treaty of peace. Such was the duty inculcated by the Fecial college upon the Romans at the expiration of a long truce which they had made with the people of Veii. That people had recommenced hostilities before the expiration of the time limited in the truce. Still it was held necessary for the Romans to send heralds and demand satisfaction before renewing the war.26 render of Capitulations for the surrender of troops, fortresses, and § 23. particular districts of country, fall naturally within the scope tions for Capitulaof the general powers intrusted to military and naval com- the surmanders. Stipulations between the governor of a besieged troops and place, and the general or admiral commanding the forces by fortresses. which it is invested, if necessarily connected with the surrender, do not require the subsequent sanction of their respective sovereigns. Such are the usual stipulations for the security of the religion and privileges of the inhabitants, that the garrison shall not bear arms against the conquerors for a limited period, and other like clauses properly incident to the particular nature of the transaction. But if the commander of the fortified town undertake to stipulate for the perpetual cession of the place, or enter into other engage ments not fairly within the scope of his implied authority, his promise amounts to a mere sponsion.27 The celebrated convention made by the Roman consuls with the Samnites at the Caudine Forks was of this nature. The conduct of the Roman senate in disavowing this ignominious compact is approved by Grotius and Vattel, who hold that the Samnites were not entitled to be placed in statu quo, because they must have known that the Roman consuls were wholly unauthorized to make such a convention. This consideration seems sufficient to justify the Romans in acting on this occasion according to their uniform uncompromising policy by delivering up to the Samnites the authors of the treaty, and persevering in the war until this formidable enemy was finally subjugated.2 28 The convention concluded at Closter-Seven, during the seven years' war, between the Duke of Cumberland, commander of the British forces in Hanover, and Marshal Richelieu, commanding the French army, for a suspension of arms in the north of Germany, is one of the most remarkable treaties of this kind recorded in modern history. It does not appear, from the discussions which took place between the two governments on this occasion, that there was any disagreement between them as to the true principles of international law applicable to such transactions. The conduct, if not the language of both parties, implies a mutual admission that the convention was of a nature to require ratification as exceeding the ordinary powers of military commanders in respect to mere military capitulations. The same remark may be applied to the convention signed at El Arish in 1800 for the evacuation of Egypt by the French army; although the position of the two governments, as to the convention of ClosterSeven, was reversed in that of El Arish, the British government refusing in the first instance to permit the execution of the latter treaty upon the ground of the defect in Sir Sidney Smith's powers, and after the battle of Heliopolis insisting 27 Vade ante, pt. iii. ch. 2, § 3. 28 See the account given by Livy of this remarkable transaction. upon its being performed by the French when circumstances had varied and rendered its execution no longer consistent with their policy and interest. Good faith may have characterized the conduct of the British government in this instance, as was strenuously insisted by ministers in the parliamentary discussions to which the treaty gave rise, but there is at least no evidence of perfidy on the part of General Kleber. His conduct may rather be compared with that of the Duke of Cumberland at Closter-Seven, (and it certainly will not suffer by the comparison,) in concluding a convention suited to existing circumstances, which it was plainly his interest to carry into effect when it was signed, and afterwards refusing to abide by it when those circumstances were materially changed. In these compacts, time is material: indeed it may be said to be of the very essence of the contract. If any thing occurs to render its immediate execution impracticable, it becomes of no effect, or at least is subject to be varied by fresh negotiation.29 § 24. Passports, safe con licenses. Passports, safe-conducts, and licenses, are documents granted in war to protect persons and property from the general operation of hostilities. The competency of the au- ducts, and thority to issue them depends on the general principles already noticed. This sovereign authority may be vested in military and naval commanders, or in certain civil officers, either expressly, or by inevitable implication from the nature and extent of their general trust. Such documents are to be interpreted by the same rules of liberality and good faith with other acts of the sovereign power.30 § 25. trade with Thus a license granted by the belligerent state to its own subjects, or to the subjects of its enemy, to carry on a trade Licenses to interdicted by war, operates as a dispensation with the laws the enemy. of war so far as its terms can fairly be construed to extend. 29 Flassan, Histoire de la Diplomatie Française, tom. vi. pp. 97—107. Annual Register, vol. i. pp. 209—213, 228—234; vol. xlii. p. [219,] pp. 223233. State Papers, vol. xliii. pp. [28-34.] 30 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 21, § 14. Vattel, Droit des Gens, liv. iii. ch. 17, §§ 265-277. The adverse belligerent party may justly consider such documents of protection as per se a ground of capture and confiscation; but the maritime tribunals of the state, under whose authority they are issued, are bound to consider them as lawful relaxations of the ordinary state of war. A license is an act proceeding from the sovereign authority of the state, which alone is competent to decide on all the considerations of political and commercial expediency, by which such an exception from the ordinary consequences of war must be controlled. Licenses, being high acts of sovereignty, are necessarily stricti juris, and must not be carried further than the intention of the authority which grants them may be supposed to extend. Not that they are to be construed with pedantic accuracy, or that every small deviation should be held to vitiate their fair effect. An excess in the quantity of goods permitted might not be considered as noxious to any extent, but a variation in their quality or substance might be more significant, because a liberty assumed of importing one species of goods, under a license to import another, might lead to very dangerous consequences. The limitations of time, persons, and places, specified in the license, are also material. The great principle in these cases is, that subjects are not to trade with the enemy, nor the enemy's subjects with the belligerent state, without the special permission of the government; and a material object of the control which the government exercises over such a trade is, that it may judge of the fitness of the persons, and under what restrictions of time and place such an exemption from the ordinary laws of war may be extended. Such are the general principles laid down by Sir W. Scott for the interpretation of these documents: but Grotius lays down the general rule, that safe-conducts, of which these licenses are a species, are to be liberally construed; laxa quam stricta interpretatio admittenda est. And during the last war licenses were eventually interpreted with great liberality in the British courts of prize."31 33 Chitty's Law of Nations, ch. 7. Kent's Comment. on American Law, vol. i. p. 164, Note a. 2d Edit. |