The Laws Of War, Affecting Commerce And Shipping Part 1

The Laws Of War, Affecting Commerce And Shipping.

by H. Byerley Thomson.

PREFACE.

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.

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 a.s.semblies 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, const.i.tution, 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), a.s.sembled 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 p.r.o.nounce 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 a.s.sert no pretensions on the part of Great Britain, which he would not allow to Sweden in the same circ.u.mstances; 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 ma.s.s 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 const.i.tuting 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 ent.i.tled 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 munic.i.p.al 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 p.r.o.nounced 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.