CHAPTER VII.

WAR-WHO MAY MAKE.

XCII. It is important to consider the doctrine of International Law, both with respect to those who may be actually engaged in warlike operations, and to those who may possess themselves of the enemy's property. This is, however, quite strictly speaking, a question of Public rather than of International Law. A declaration of War, as Vattel remarks, which enjoins the subjects at large to attack the enemy's subjects, implies a general order (a). If the unauthorised subject carry on War, or make captures, it may be an offence against the sovereignty of his own nation, but it is not necessarily a violation of International Law (b). It is true that the Sovereign's order which commands acts of hostilities, and gives a right to commit them, is usually a particular order (c), that is, an order to certain persons, and that such an order greatly conduces to the mitigation of the evils inseparable from War; but there are many conceivable cases in which a Sovereign may appeal to all his subjects to protect their country (d). Certainly the Sovereign may commission whomsoever he pleases to carry on the War, both by land and sea. Maritime volunteers or

(a) "At the same time usage does require a lawful commission for

the exercise of hostilities."-Martens, 1. viii. c. iii. s. 2.

(b) Vattel, 1. iii. c. xv. ss. 224-28.

(c) Ib. s. 224.

(d) Ib. s. 228.

Privateers (e) will be considered hereafter; but it must be remembered here that they carry Letters of Marque.

The legal position that no subject can lawfully commit hostilities, or capture property of an enemy, when his Sovereign has either expressly or constructively prohibited it, is unquestionable (f). But it appears to be equally unquestionable that the Sovereign may retroactively ratify and validate the unauthorised act of his subject. In fact, the subject seizes at his peril, and it is for the Sovereign to decide in the last resort whether he will ratify or repudiate the act (g). It is another unquestionable proposition that all captures in War enure to the Sovereign, and can become private property only through his grant (h). But this doctrine has not prevented the English Prize Courts from holding that a subject may seize hostile property for the use of the Crown, wherever it is found: it will be in the discretion of the Crown to ratify the capture by proceeding to condemnation; but to the Prize Court it is quite indifferent whether the capture was originally authorised or subsequently sanctioned by the Crown. This principle is illustrated by various decisions of the Prize Courts in cases of capture by non-commissioned vessels, by commanders on foreign stations anterior to the War, by private individuals in port or on the coasts, and by naval commanders on shore, or unauthorised expeditions (i); and in cases where private

(e) Et vide ante, vol. i. p. 425.

(f) Brown v. The United States, 8 Cranch (Amer.), 133. (Story). (9) The Thorshaven, Edward's Rep. 102.

(h) The Elsebe, 5 Rob. Adm. Rep. 173.

The Maria Françoise, 6 ib. 282; 11 East's Rep. 619.

Brown v. The United States, 8 Cranch (Amer.), 131.

(i) The Aquila, 1 Rob. Adm. Rep. 37.

The Twee Gesuster, 2 ib. 284, n.

The Rebeckah, 1 ib. 227.

The Gertruyda, 2 ib. 211.

The Mariamne, ib. 11.
The Charlotte, ib. 282.

The Richmond, ib. 325.

The Thorshaven, Edward's Rep. 102.

Hale, in Hargrave's Law Treatises, c. xxviii. 245.

captors have sought to obtain a condemnation of their captures to themselves, it has been the practice of the Prize Court, on failure of their title, to decree condemnation to the Crown or the Admiralty, as the circumstances required (k). "Nor," says Mr. Justice Story, in a judgment which really exhausts the argument and learning which belong to this subject, "can I consider these principles of the "British Courts a departure from the Law of Nations” (1). And he proceeds to show that Puffendorf and Vattel are improperly cited as authorities for the position, that private subjects who seize enemies' property are to be considered as Pirates (m); and that Puffendorf (n), Vattel (o), Grotius (p), and Bynkershoek (g), when carefully and thoroughly examined, fully sustain the law administered in the Prize Courts of Great Britain; and he adds the remarkable words, "If the principles of British Prize Law go further, I am free to say that I consider them as the law of this country."

So Mr. Chancellor Kent observes in his Commentaries, that "there is scarcely a decision of the Prize Courts on "any general question of public usage which has not re"ceived the express approbation and sanction of our national "Courts" (r).

XCIII. We have seen under what circumstances the pro

(k) The Walsingham Packet, 2 Rob. 77.

The Etrusco, 4 ib. p. 262, note, and see cases just cited. (1) Brown v. The United States, 8 Cranch (Amer.), 132, (m) Ib. 132, 134.

(n) L. viii. c. vi. p. 21.

(0) L. iii. c. xv. ss. 22-328.
() L. iii. c. vi. ss. 2, 10, 12.

(4) Q. J. P. cc. iii. xviii. xx.

Looking to the general scope of his arguments (ib. cc. iii. iv. xvi. xvii.), I think it might not unfairly be argued that, independent of particular edicts, the subjects of hostile nations might lawfully seize each other's property wherever found."—Story, ubi supr. p. 134. () Part. i. I. iii. p. 70.

perty of Foreign Corporations may be subject to belligerent Rights; it remains to observe that Corporations may also, under certain circumstances, exercise these Rights. Thus, Wars have been carried on out of Europe by Companies or Societies, but these Wars have been waged under the direct or implied authority of the Sovereign. The right of waging them is a consequence of the power granted by the State to those companies over particular territories (s). It has so happened that this power has been only granted with respect to possessions out of Europe, but there does not appear to be any absolute necessity that it should be so limited.

The East India Companies, as has been already observed (t), formerly presented the most remarkable illustration of the enjoyment of this authority by corporate bodies. But though they have made war and peace in their own name, it is clear that they have done so as delegates of their Sovereign; and it may be observed, that the Sovereign regulated the distribution of the Booty captured in time of War by the East India troops (u).

XCIV. With respect to the instruments by which the work of destruction and devastation may be carried on, but little can be said by the International Jurist, and that little must be chiefly of a negative character.

The means of carrying on War are either (1) secret or (2)

open.

With respect to secret means, those of poison, of assassination, of treachery, are proscribed by Christian and civilised Heathen nations. It was a noble reply of the Roman Senate, even in the days of its corruption, to the offer of a barbarous ally to destroy their enemy by poison :-" Si patrandæ neci

(8) Martens, 1. viii. c. iii. s. 2.

(t) Vol. i. s. 167-442. n.

(u) Case of the Army of the Deccan, 2 Knapp's Privy Council Rep. 103. The question related to booty captured in the Pindaree and Mahratta War, 1817-18.

Vide post as to this case and booty generally.

venenum mitteretur-non fraude neque occultè, sed palam et armatum, populum Romanum suos ulcisci (x).

Memorable also is the language of our Lord Bacon upon he same subject:-"It were," he says, "just and honouracie for Princes, being in Wars together, that however aev prosecute their quarrels and debates by arms and acts of hostility; yea, though the Wars be such as they pretend, the utter ruin and overthrow of the forces and states one of another, yet they so limit their passions as they preserve ** two things sacred and inviolable,—that is, the life and good name each of other.

.

**

For the Wars are no massacres and confusions; but they are the highest trials of right, when Princes and States, that acknowledge no superior upon earth, shall put themselves upon the justice of God for the deciding of their controversies by such success as it shall please Him to give on either side. And as in the process of particular pleas between private men, all things ought to be ordered by the "rules of civil laws, so in the proceedings of the War nothing ought to be done against the Law of Nations or the Law of Honour; which laws have ever pronounced these two sorts of men, the one conspirators against the persons of Princes, the other libellers against their good fame, to be such enemies of common society as are not to be cherished, no, not by enemies.

For in the examples of times which were less corrupted, "we find that when, in the greatest heats and extremities of Was, there have been made offers of murderous and traitorous attempts against the person of a Prince to the enemy, hey have been not only rejected, but also revealed; and in ke manner, when dishonourable mention shall have been

ce of a Prince before an enemy Prince by some that have oght therein to please his humour, he has shown himself,

(x) Tacit. Annal. 1. ii. c. lxxxviii.