The Laws Of War, Affecting Commerce And Shipping Part 4

But it is advisable for persons so situated, on their intended removal, to make application to Government for a special pa.s.s, rather than to trust valuable property to the effect of a mere intention to remove, dubious as that intention may frequently appear, under the circ.u.mstances 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 circ.u.mstances 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 circ.u.mstances 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 pa.s.s of a foreign country, she is considered as bearing the national character of the nation under whose pa.s.s 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 pa.s.s and flag of another country, they are not permitted, in case any inconvenience should afterwards arise, to aver against the flag and pa.s.s 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 a.s.suming the flag and pa.s.s 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 pa.s.s 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 doc.u.mented as foreign property, in the same manner as the ship, the sailing under a foreign flag and pa.s.s 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 a.s.signment 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 circ.u.mstance. 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 a.s.sa.s.sins, 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 cla.s.ses 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 pa.s.sed to the victors; but the last example of confiscation and part.i.tion among the conquerors in Europe, was that of England, by William of Normandy.