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proof, and be sufficient to infer guilt; but it does not in England, as it does by the maritime law of other countries, create an absolute presumption juris et de jure; and yet, a case that escapes with such a brand upon it, is saved so as by fire. The Supreme Court of the United States has followed the less rigorous English rule, and held that the spoliation of papers was not, of itself, sufficient ground for condemnation, and that it was a circumstance open for explanation, for it may have arisen from accident, necessity, or superior force. If the explanation be not prompt and frank, or be weak and futile; if the cause labours under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is good cause for the denial of further proof; and the condemnation ensues from defects in the evidence, which the party is not permitted to supply. The observation of Lord Mansfield, in Bernardi v. Motteaux, was to the same effect. By the maritime law of all countries, he said, throwing papers overboard was considered as a strong presumption of enemy's property; but, in all his experience, he had never known a condemnation on that circumstance only.
a The Hunter, 1 Dodson, 480.
OF TRUCES, PASSPORTS, AND TREATIES OF PEACE.
HAVING considered the rights and duties appertaining to a state of war, I proceed to examine the law of nations relative to negotiations, conventions and treaties, which either partially interrupt the war, or terminate in peace. (1.) A truce or suspension of arms, does not terminate Effect of■ the war, but it is one of the commercia belli which suspends its operations. These conventions rest upon the obligation of good faith, and as they lead to pacific negotiations, and are necessary to control hostilities, and promote the cause of humanity, they are sacredly observed by civilized nations.
A particular truce is only a partial cessation of hostilities, as between a town and an army besieging it. But a general truce applies to the operations of the war; and if it be for a long or indefinite period of time, it amounts to a temporary peace, which leaves the state of the contending parties, and the questions between them, remaining in the same situation as it found them. A partial truce may be made by a subordinate commander, and it is a power necessarily implied in the nature of his trust; but it is requisite to a general truce, or suspension of hostilities throughout the nation, or for a great length of time, that it be made by the sovereign of the country, or by his special authority. The general principle on the subject is, that if a commander makes a compact
a Vattel, b. 3. c. 16. sec. 233–238. Grotius, b. 3. e. 21.
with the enemy, and it be of such a nature that the power to make it could be reasonably implied from the nature of the trust, it would be valid and binding, though he abused his trust. The obligation he is under not to abuse his trust, regards his own state, and not the enemy."
A truce binds the contracting parties from the time it is concluded, but it does not bind the individuals of the nation so as to render them personally responsible for a breach of it, until they have had actual or constructive notice of it. Though an individual may not be held to make pecuniary compensation for a capture made, or destruction of property, after the suspension of hostilities, and before notice of it had reached him, yet the sovereign of the country is bound to cause restoration to be made of all prizes made after the date of a general truce. To prevent the danger and damage that might arise from acts committed in ignorance of the truce, it is common and proper to fix a prospective period for the cessation of hostilities, with a due reference to the distance and situation of places."
A truce only temporarily stays hostilities; and each party to it may, within his own territories, do whatever he would have a right to do in time of peace. He may continue active preparations for war, by repairing fortifications, levying and disciplining troops, and collecting provisions, and articles of war. He may do whatever, under all the circumstances, would be deemed compatible with good faith, and the spirit of the agreement; but he is justly restrained from doing what would be directly injurious to the enemy, and could not safely be done in the midst of hostilities. Thus, in the case of a truce between the governor of a fortified town, and the army besieging it, neither party is at liberty to continue works, constructed either for attack or defence, and which could not safely be done if hostilities had
a Rutherforth, b. 2. c. 9. Vattel, b. 3. c. 16. sec. 261. Grotius, b. 3. c. 22. sec. 4.
b Vattel, b. 3. c. 15. sec. 239. 244.
continued; for this would be to make a mischievous and fraudulent use of the cessation of arms. So, it would be a fraud upon the rights of the besieging army, and an abuse of the armistice, for the garrison to avail themselves of the truce to introduce provision and succours into the town, in a way, or through passages, which the besieging army would have been competent to prevent. The meaning of every such compact is, that all things should remain as they were in the places contested, and of which the possession was disputed, at the moment of the conclusion of the truce.
At the expiration of the truce, hostilities may recommence without any fresh declaration of war; but if it be for an indefinite time, justice and good faith would require due notice of an intention to terminate it.
Grotius and Vattel,d as well as other writers on national law, have agitated the question, whether a truce for a given period, as, for instance, from the first of January to the first of February, will include or exclude the first day of each of these months. Grotius says, that the day from whence a truce is to be computed, is not one of the days of the truce, but that it will include the whole of the first day of February, as being the day of its termination. Vattel, on the other hand, is of opinion, that the day of the commencement of the truce would be included, and as the time ought to be taken largely and liberally, for the sake of humanity, the last day mentioned would also be included. Every ambiguity of this kind ought always to be prevented, by positive and precise stipulations, as from such a day to such a day, both inclusive.
a Vattel, b. 3. c. 16. sec. 247, 248.
b Ibid. sec. 250.
c lbid. b. 3. c. 16. sec. 260.
d Grotius, b. 3. c. 21. sec. 4. Vattel, b. 3. c. 16. sec. 244.
e The rule proposed by the English Commissioners, in their report on the practice of the English Courts, in July, 1831, is recommended by its simplicity and certainty. They proposed to compute the first day exclusively and the last day inclusively in all cases.
Of a Pass
(2.) A passport, or safe conduct, is a privilege granted in war, and exempting the party from the effects of its operation, during the time, and to the extent prescribed in the permission. It flows from the sovereign authority; but the power of granting a passport may be delegated by the sovereign to persons in subordinate command, and they are invested with that power either by an express commission, or by the nature of their trust. The general of an army, from the very nature of his power, can grant safe conducts; but the permission is not transferable by the person named in the passport, for it may be that the government had special reasons for granting the privilege to the very individual named, and it is presumed to be personal. If the safe conduct be granted, not for persons, but for effects, those effects may be removed by others besides the owner, provided no person be selected as the agent, against whom there may exist a personal objection sufficient to render him an object of suspicion or danger within the territories of the power granting the permission.
He who promises security, by a passport, is morally bound to afford it against any of his subjects or forces, and to make good any damage the party might sustain by a violation of the passport. The privilege being so far a dispensation from the legal effects of war, it is always to be taken strictly, and must be confined to the purpose, and place, and time, for which it was granted. A safe conduct generally includes the necessary baggage and servants of the person to whom it is granted; and, to save doubt and difficulty, it is usual to enumerate, with precision, every particular branch and extent of the indulgence. If a safe conduct be given for a stated term of time, the person in whose favour it was granted, must leave the enemy's country before the time expires, unless detained by sickness, or some unavoidable cir
a Vattel, b. 3. c. 17.