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—However desirable it may be, (and it is hoped it may eventually be done by pacific, not by warlike means,) to introduce the doctrine in question into the public code, it ought to be understood, that this is not by any means enough. That the flag of the neutral should protect the property, over which it floats, is right; it is agreeable to an enlightened common sense, as well as to the suggestions of humanity. A BONA FIDE merchant ship is a domicil ; in the eye of well instructed reason and good will, it is and ought to be as sacred as any other human residence ;, and no foot ought to be allowed to plant itself there, which does not come in the spirit of amity. But this improvement, though a considerable one, is far from coming up to the line of the real claims of humanity. The private property of belligerents, (all the property of individuals which is held and is transmitted from place to place for private and pacific, and not for warlike purposes,) ought to be held sacred, not only on board neutral ships, but every where.
OF WAR ON PRIVATE PROPERTY ON THE OCEAN.
The closing paragraph of the preceding Chapter leads us to remark more particularly on what we consider a contradictory and exceedingly odious feature in the code of international law. We refer, as what has been said will lead the reader to anticipate, to the taking of private property on the ocean, whether by public ships, or by the more odious practice of privateering. And by private property here, we mean not merely such as may happen to be embarked in neutral vessels; but also private property on board of the merchant ships of the parties at war.
In order to justify the severe animadversion, which we are disposed to pass on the practice of taking private property on the ocean, it is necessary to advert to the practice on the land. It is exceedingly gratifying to find, that the principles of the laws of war, so far as operations on land are concerned, have been gradually modified and improved ; becoming more and more adapted to the improved state of society, and conforming themselves more strictly to the dictates of an enlightened justice. Large armies often pass through the territories of their enemies in war, and meet each other in desperate conflict, without committing devastations on the property of
those, who are pursuing the arts of peace, or causing them any permanent interruptions. It has now become a settled principle in the law of nations, that the direct miseries of war shall be inflicted only on those, who are engaged in actual hostilities; a principle, saying nothing of its intrinsic propriety and rectitude, which was loudly called for by the claims of humanity. There may be some exceptions to the general principle in extreme cases, as in the case of a besieged or assaulted city, where the attacking army would necessarily be defeated in its object by a strict adherence to it; but in all ordinary conjunctures it is sustained in good faith. Private property is not touched ; the lands and dwellings of the inhabitants are respected; and when at times the conquering army are obliged to exact provisions absolutely necessary for their support, it is on the ground of a reasonable compensation being made.
“At present, says Vattel, war is carried on by regular troops ; the people, the peasants, the citizens take no part in it, and generally have nothing to fear from the sword of the enemy. Provided the inhabitants submit to him, who is master of the country, pay the contributions imposed, and refrain from all hostilities, they live in as perfect safety, as if they were friends ; they even continue in possession of what belongs to them ; the country people come freely to the camp to sell their provisions, and are protected, as far as possible, from the calamities of war. A laudable custom, truly worthy of those nations who value themselves on their humanity, and advantageous even to the enemy, who acts with such moderation.”
It may be added, that this principle in the law of nations is not a mere dead letter. Not unfrequently, when armies, under the influence of an uncontrolled hostile feeling, have been guilty of seizing private property, the na
tion, to which the delinquent army belonged, has practically rendered its homage to the principle in question by a suitable reparation. This was the case in the last war between England and the United States, and other instances are not wanting. But while we most cheerfully and readily yield our approbation of a principle so full of wisdom and humanity, we are astonished to find, that what is right on the land, is by the same law of nations wrong on the water; and that the protection, which is afforded to the property of the farmer and the mechanic, is withholden from that of the merchant and the sailor. Here is a palpable and surprizing contradiction; but it is almost a trite remark to say, that there is no contradiction in justice, no fickleness and falsity in the immutable principles of right; and that, if the doctrine of national law be correct and highly commendable in the one case, it is erroneous and detestable in the other.
If a merchant's goods are found in his store on the land, they are not only respected by the enemy, but the owner is permitted to vend them, to buy and to sell as usual ; but if the same goods are found on the ocean, though sent on a legal and peaceful voyage, they are captured and made lawful prize. This is undoubtedly a fruitful source of unmerited, unmitigated, and heart-rending distress to a large and interesting portion of every civilized community. The merchant not only pays his proportion of the taxes, incident to a state of war, but if he happens to venture out on that great highway of nations, which God has assigned to men, not for depredations and battle, but for the purpose of intercourse, mutual assistance, and traffic, he may lose his whole property at once, although he is as much in the exercise of a recognized and peaceful vocation, as any man whatever.
This subject has for many years elicited no small attention. It would be an easy matter to adduce the
opinions of many distinguished men, who have expressed themselves in opposition to the prevailing practice. “Another subject (says Mr. Livingston, in the debate on the proposed Congress of Panama,) is the placing private property on the ocean, in time of war, in the same safety, that it is on land. No good reason can be given why, when a maritime town is taken by an enemy's force, private property should be respected in stores, when the same property, moved into a ship, would be good prize ;-why the husbandman may pursue his calling, and the sailor, following an equally peaceful business, should be liable to capture and imprisonment. How honorable to ourselves, how important to humanity, could stipulations to effect these objects, and to abolish the disgraceful and unprofitable practice of privateering be, by our agency, introduced into the code of nations. And if their utility and justice should not cause them to be considered a part of the European law of nations, but were made binding on the American States alone, the advantage would be incalculable ; the reputation of having introduced them would be permanent and splendid.”
“One would think, (says Mr. A. H. Everett in some remarks on the same interesting topic,) the civilians must be lunatic themselves to make an action change its character from right to wrong four times every twenty four hours, without any other change of circumstances than the ebb and flow of the tide in the place where it was committed; yet such, according to the present law of nations, is literally the fact. The plunder of private property belonging to enemies by an armed force on a beach would be against the law of nations, and generally punishable with death ; while the same act, performed by a ship of war at the same place, when covered with water at high tide, would be agreeable to usage