his minister of finance to examine whether, in case they should so act, it would not be necessary to have recourse to the same rigour. The matter is a very delicate one, said he; I am not willing to set the example, but if the English do so, I ought to make reprisals. M. Mollien replied that such an act was so contrary to English policy that he could not believe it, that he wished the cabinet of London would commit such a mistake, but that its results would be the more disastrous for them, if it were not imitated. On this occasion he sent to the emperor the memoir of Hamilton,' the friend, counsellor, and minister of Washington, on the question whether the political, more even than the moral rule, did not forbid every government, not only to confiscate capital which had been lent to it by the subjects of a power with which it was at war, but even to suspend, as far as they were concerned, the payment of interest. Napoleon did not insist further on the matter.' 2 We close this subject with referring to some of the opinions which text-writers have expressed on the several points considered. As for immovable property in an enemy's country, Bynkershoek says that in strict justice it can be sold and confiscated, ut in mobilibus obtinet,' but he adds that it is a general usage throughout Europe for the rents to go to the public treasury during war, but for the property itself after the war to (Quæst. Jur. Publ.' revertex pactis' to the former owner. i. 7.) As for other property, except debts, all jurists hold the same doctrine of its liability to confiscation. (Compare Manning, p. 127.) As for debts, even Grotius decided that hæc non belli jure quæsita sed bello tantum exigi vetita.' But Bynkershoek (u. s.), while he mentions that the right to confiscate them had been questioned, adds, 'sed videtur esse jus commune ut et actiones publicentur, ex eadem nempe ratione quâ corporalia quælibet. Actiones utique sive credita non minus, jure gentium, sunt in dominio nostro quam alia bona; eccur igitur in his jus belli sequamur, in aliis non sequamur.' There must, however, be If the sovereign '-Bynkershoek goes on actual confiscation. to say-'has exacted debts due to enemies from his subjects, they are duly paid, but if not, at peace the creditor's former right revives, because occupation in war consists rather in fact than in jural power. Debts, therefore, if not confiscated, in time of war suffer a temporary suspension, but upon peace return by a sort of postliminy to their old owner.' Accordingly, he adds that treaties often provide for the non-payment to the creditor of confis 1 Probably the letters of Camillus. See the note at the end of this section. 2 From a biography of Count Mollien, contributed by Michel Chevalier to the Revue des Deux Mondes, in the year 1856, cited by Vergé on De Martens, § 258, edit. of 1858. 6 be con cated debts. Vattel takes the same ground as to debts, but adds that all the sovereigns of Europe have departed from this rigour, and, as the usage has altered, he who should act contrary to it would injure the public faith. (B. iii. 5, § 77.) Mr. Manning says that debts due from individuals to the enemy may fiscated by the rigorous application of the rights of war-but the exercise of this right has been discontinued in modern warfare; and it may be regarded as established that, though debts cannot be claimed by an enemy during war, yet that the right to claim payment revives on the return of peace' (pp. 129, 130). Dr. Wheaton says that for nearly a century and a half previous to the French revolution no instance of confiscation of debts had occurred, with the simple exception of the Silesian loan in 1753. And he sums up his view of international law on this point in the words that property of the enemy found within the territory of the belligerent state, or debts due to his subjects by the government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as a prize of war. This rule, he adds, is frequently enforced by treaty stipulations, but unless it be thus enforced, it cannot be considered as an inflexible, though an established rule. ('El.' iv. i. 345–347.) Finally, as to public debts due to individual subjects of the enemy, I will cite but the single authority of Mr. Manning: One description of property is invariably respected during war, namely the sums due from the state to the enemy, such as the property which the latter may possess in the public funds. This is justly regarded as entrusted to the faith of the nation; and during the most bitter animosity of our wars with France no attempt has been made on either side to confiscate such property, which cannot be touched without a violation of public faith.' 1 1 In the letters of Camillus, written by Alexander Hamilton just after Jay's treaty in 1795, this subject is considered at length, particularly in letters 18-20. (Works, vol. vii.) In letter 19, he examines the right to confiscate or sequestrate private debts or property on the ground of reason and principle. He admits at the outset the proposition that every individual of the nation with whom we are at war is our enemy, and his property liable to capture. To this there is one admitted exception respecting enemy's property in a neutral state, but this is owing to the right of the neutral nation alone. Reason, he maintains, suggests another exception. Whenever a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security.'-'The property of a foreigner placed in another country, by permission of its laws, may justly be regarded as a deposit of which the society is a trustee. How can it be reconciled with the idea of a trust, to take the property from its owner when he has personally given no cause for the deprivation? Goods of enemies found elsewhere differ from those which are in our country, since in the latter case there is a reliance on our hospitality and justice. And the same argument which would confiscate the goods would seize the persons of enemies' subjects. The case of property in the public funds is still stronger than that of private debts. The result which Hamilton reaches is sound, but if we admit the principle that every individual belonging to the belligerent nation is an enemy, and every enemy's property liable to capture, we must deny the validity of exceptions, unless treaty Have all in each hostile state a right to carry on war? $119. If each and all on the one side were enemies to each and all on the other, it would seem that every person had a right, so far as the municipal code did not forbid, to fall upon his enemy wherever he could find him, that, for instance, an invading army had a right to seize on all the property and persons within reach, and dispose of them at discretion. But no such unlimited enmity is now known in the usages of nations. It is to be hoped that the theory from which such consequences flow will be abandoned and disappear altogether. The true theory seems to be that the private persons on each side are not fully in hostile relations but in a state of nonintercourse, in a state wherein the rights of intercourse, only secured by treaty and not derived from natural right, are suspended or have ceased; while the political bodies to which they belong are at war with one another, and they only. Of course until these political bodies allow hostile acts to be performed, such acts, save in self-defence, may not be performed; and accordingly the usages of war visit with severity those who fight without a sanction from their governments. The plunder which such persons seize belongs not to themselves but to the public, until public authority gives them a share in it. Treatment of enemies' pro sea. § 120. There has long been a difference between the treatment of enemies' property-including in this term the property on land and perty of individual subjects of the hostile state-on land and on the sea, or more generally between such as falls within the power of invading armies, and such on the sea and along the coast, as falls within the power of armed vessels. The former, as we shall see when we come anon to consider the laws and usages of warfare, is to a certain extent protected. The latter, owing to the jealous feelings of commercial rivalship, hardened into a system by admiralty courts, has been extensively regarded as lawful prey. We must, however, admit that there is some pretence of reason for this difference of practice upon the two elements. For, first, an enemy's intercourse with other states by sea more directly increases his capacity to sustain and protract the war. And, secondly, there is a difference on the score of or usage has established them. The foreigner brought his property here, it can at once be said, knowing the risk he might run in the event of a war. Why should he not incur the risk? He should incur it, say the older practice and the older authorities. He should not, says the modern practice, although international law in its rigour involves him in it. He should not, according to the true principle of justice, because his relation to the state at war is not the same with the relation of his sovereign or government: because, in short, he is not in the full sense an enemy. humanity between land and maritime capture. On the land, interference with private property, by stripping families of their all, is often the source of the deepest misery. It also embitters feeling, and drives non-combatants into guerilla warfare or into the regular service. Invasion always arouses a national spirit; but invasion with plunder rather defeats the end of war than promotes it, until a nation is bowed down to the dust. And at that point of time it disables the conquered from giving the compensation for which the war was set on foot. But capture on the sea is effected for the most part without much fighting; it rather deprives the foe of his comforts and means of exchanging his superfluities than destroys the necessaries of life; and it afflicts more directly the classes which have some influence upon the government, as well as the resources of the government itself, than the day-labourer and the cultivator of the soil, who have special claims to be humanely treated. § 121. in war, especially Pri On the land, in addition to standing armies, a militia and volunteers, often commanded by regular officers, have Forces employed been employed in carrying on war, especially in na- on the sea. tional defence. As the different military corps are vateers. frequently united in their operations, and no great harm can be done by the less disciplined, if under proper officers, to employ a militia or volunteers can furnish no just ground for complaint. On the sea, the practice of commercial states has long been to make use not only of public but also of private armed vessels for the purpose of doing injury to the enemy. This usage in Europe runs back to the time when permanent public navies scarcely existed; for during a considerable part of the middle ages the European states, having small fleets or none at all, impressed or hired merchant vessels for the uses of war. Private persons also engaged in naval warfare on their own account, employing their own vessels either at the public expense-called Kruyssers, cruisers by the Dutch; or at their own expense-Kapers, Vrybuyters, captors, free-plunderers or hiring a public vessel with a crew and outfit of their own; of which last description an expedition undertaken in the reign of Louis XIV. against the Portuguese at Rio Janeiro to get satisfaction for an insult on a French ambassador was an example.1 A private-armed vessel or privateer is a vessel owned and officered by private persons, but acting under a commission from the state, usually called letters of marque.2 It answers to a company on land raised and commanded by private persons, but 1 Bynkersh. Quæst. J. P. i. 18; Ortolan, ii. 52. Martens, Les Armateurs, chap i. 2 From the signification, border, the marches, it is said. Letters of licence to go across the boundary and make reprisals acting under rules from the supreme authority, rather than to one raised and acting without licence, which would resemble a privateer without commission The commission, on both elements, alone gives a right to the thing captured, and ensures good treatment from the enemy. A private vessel levying war without such licence, although not engaged in a piratical act, would fare hardly in the enemy's hands. The right to employ this kind of extraordinary naval force is unquestioned, nor is it at all against the usage of nations in times past to grant commissions even to privateers owned by aliens. The advantages of employing privateers are (1.) That seamen thrown out of work by war can thus gain a livelihood and be of use to their country. (2.) A nation which maintains no great navy is thus enabled to call into activity a temporary force, on brief notice, and at small cost. Thus an inferior state, with a large commercial marine, can approach on the sea nearer to an equality with a larger rival having a powerful fleet at its disposal. And as aggressions are likely to come from large powers, privateering may be a means, and perhaps the only effectual means, of obtaining justice to which a small commercial state can resort. teering. § 122. On the other hand, the system of privateering is attended with Evils of priva- very great evils. (1.) The motive is plunder. It is nearly impossible that the feeling of honour and regard for professional reputation should act upon the privateersman's mind. And when his occupation on the sea is ended, he returns with something of the spirit of a robber to infest society. (2.) The control over such crews is slight, while they need great control. They are made up of bold, lawless men, and are where no superior authority can watch or direct them. The responsibility at the best can only be remote. The officers will not be apt to be men of the same training with the commanders of public ships, and cannot govern their crews as easily as the masters of commercial vessels can govern theirs. (3.) The evils are heightened when privateers are employed in the execution of belligerent rights against neutrals, where a high degree of character and forbearance in the commanding officer is of especial importance. Hence many have felt it to be desirable that privateering should be placed under the ban of international law, and the evils of privateer- feeling is on the increase, in our age of humanity, that the system ought to come to an end. We cite as expressing this feeling only writers belonging to our own country. Dr. Franklin, in several passages of his correspondence, makes decided protests against it, as well as against the spirit of plunder in which it originates. The practice of robbing mer Testimony to the ing. |