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important nations are given at length by Dr. Wheaton. (El.' iv. 2, § 12, 419-424.)

1

§ 145.

'Recte dixit Grotius,' says Bynkershoek, 'postliminium etiam in integris populis locum habere, ut, inquit, Effect of tempoqui liberi fuerunt, suam recipiant libertatem, si forte rary conquests. eos vis sociorum eximat hostili imperio.' ('Quæst. J. P.' i. 16.) A state, after temporary occupation or after the short-lived government of a conqueror, may be restored to its pristine condition. Such was the case with Holland, part of Germany and Spain, in the times of Napoleon. The interruption of former rights and the actions of the conqueror give rise to several perplexing questions in regard to the condition of such a country; and as occupation is separated by no very distinct limits from debellation' or complete conquest, or at least as the occupier sometimes acts the conqueror, hereby, perhaps, the perplexity is increased. We follow Heffter (§ 188) principally, in our brief representation of the rights and obligation of a state restored in this postliminary way. (Compare Phill. iii. 680, et seq.)

Such restoration follows, as a matter of course, whenever the conquering occupant by treaty abandons his conquests or is driven out, whether by the inhabitants or by an ally. But if a third party dispossesses the conqueror, the state cannot, according to international justice, recover its independent existence without his consent, although this may be demanded by equity or humanity.

If mere occupation, without the assumption of the attributes of government, had taken place, everything goes back to the old state. The restored régime can claim even from allies and neutrals property which had passed over to them from the occupier, so far as the right of war gave him no power to dispose of them. If the occupant conqueror set up and carried on a new government, then

1. None of his changes in the earlier constitution, no mode of administration, officer or law, has any claim to permanence.

2. No retroactive exercise of the powers of government, affecting subjects or third persons, rightfully belongs to the restored régime, so far as relations are concerned, which pertained to the period of occupation. Thus, taxes for the interim cannot properly be collected, on the ground that they would have been due to the old government if the occupation had not taken place. For the rights of sovereignty, so far as they pertained to the old régime, had in fact passed over into the hands of the new.

3. Whatever the government by conquest did in the legitimate

1 III. 9, § 9.

exercise of political power is valid. The new government succeeds to it in its acquisitions and obligations, and cannot set aside its doings on the ground that it had no right to exist. Thus what was due to the usurping government in back-standing taxes, what it acquired by treaty or otherwise, belongs to its successor. On the other hand, if that government disposed of state property, or contracted state debts, its proceedings here also are valid, inasmuch as it represented the state. This has been denied, but not with justice, except in those extreme cases where the temporary government had alienated property or borrowed money not in the exercise of political authority nor for public purposes, but with the spirit of a plunderer. (Compare § 38, § 99.)

SECTION V. Of the Suspension and the Termination of War, especially of Truce and of Peace.

§ 146.

The possibility of intercourse in war depends on the confidence which the belligerents repose in each other's good

Intercourse in

war.

1. For the faith, and this confidence on the unchangeable purposes of war. sacredness of truth. Even Bynkershoek, who allows every kind of violence and every kind of craft, has to say, in words already cited, 'ego quidem omnem dolum permitto, sola perfidia excepta. (Quæst. J. P.' i. 1.) That faith should be kept with heretics has been denied, but no one has maintained that it is not to be kept with enemies.1

Such being the undoubted principle of obligation in war as well as in peace, war is enabled to put on a milder form for that reason, and to interrupt its violence for a time either towards particular persons or entirely. Among these intermissions of war

are to be enumerated:

1. The commercia belli, to which we have already referred (§ 134), and of one of which, ransom-contracts, we have spoken at large (§ 142). Some conventions in war have a lasting operation, as determining how the war shall be carried on, what kinds of arms shall be accounted unlawful, how prisoners shall be treated and the like, or as placing certain persons or places in a relation of neutrality to both parties. Others are transitory and special, as contracts relating to requisitions, to ransom, to exchange of prisoners, and to capitulations. Prisoners are generally exchanged within the same rank man for man, and a sum of money or other equivalent is paid for an excess of them on one side. Capitulations formerly were often made on the condition of not being relieved by a certain day. They are usually formal agree

1 Compare Heffter, § 141.

ments in writing between the officers in command on both sides, who have, unless the power is taken from them with the knowledge of the other party, power to make all such arrangements.

§ 147.

conducts.

2. Next to these may be classed permissions given to individuals which suspend the operations of war, as far as 2. Licences to their persons are concerned, for the purpose of ena- trade. Safebling them to perform a work of peace. These modes of plighting faith are not necessary for the conduct of the war. One of these is licences to trade with the enemy. A licence to trade with the enemy being an exception to the ordinary rules of war, is to be strictly interpreted, and yet, where there has been evident good faith in following it, slight deviations will not be noticed. If the person, the port or town, the kind and quality of the goods, the limits of time, are prescribed in the licence, departures from its terms, with the exception of unavoidable delay, will make it void. Thus it has been decided that a licence to neutral vessels becomes void when hostile vessels or those of the country giving the licence are substituted for them; that a licence to import will not cover re-exportation; that one prescribing a certain course of navigation is avoided by voluntary departure from such course; that a licence to sail in ballast is forfeited by carrying part of a cargo, or to import certain articles will not protect other articles, not named, although destined for a neutral port, or again to proceed to a certain port is vitiated by calling at an interdicted port for orders. A general licence to sail to any port will not include a blockaded one, which is shut by higher laws of war. A licence, although it has expired, will protect in case of unavoidable hindrances. No consul and no admiral, according to English doctrine, can give a licence, which is a high act of sovereignty, without authority of the government. A licence protects against all cruisers of the enemy, but not against any action of the country to which the licensed person or vessel pertains. (Compare § 117.)

Passports and safeguards, or safe-conducts, are letters of protection, with or without an escort, by which the per- Safeguards and son of an enemy is rendered inviolable. These may passports. be given in order to carry on the peculiar commerce of war, or for reasons which have no relation to it, which terminate in the person himself. As, like licences, they are exceptions to the nonintercourse of war, they are stricti juris, as far as relates to the person, the time of his sojourn, his route and residence, and in a degree to his effects and attendants. If he remain beyond the

1 These and many more particular cases touching the interpretation of licences by the English courts may be found in Wildman, ii. 245-269.

prescribed time with no inevitable necessity from illness or other cause, he can be treated as a captive. If he is discovered in intrigues his passport is vitiated. If he acts as a spy, of course he forfeits the right of protection; for he is thus committing an act of hostility, whether the officer who gave him the passport is privy to his designs or not. Arnold's pass could be of no avail to André, when once his true character was brought to light.

Truce or armistice.

§ 148.

3. A temporary suspension of the operations of war at one or more places is called a truce or armistice. A truce may be special, referring to operations before a fortress or in a district, or between certain detachments of armies. or general, implying a suspension of hostilities in all places. A general truce can be made only by the sovereign power or its agents, specially empowered for this purpose. A special or partial truce may be concluded according to the usage of nations by a military officer, even by a subordinate one within his district. This usage rests on the consideration that both policy and humanity require that such a discretionary power should be lodged in those who, being on the spot, can best understand the exigencies of the case. If an officer should be restricted in the use of this power contrary to usage, and yet should exercise it, his agreement, at least if not corruptly made, would be binding on his sovereign, provided that the other party knew nothing of the restriction. For that party had a right to infer from prevalent usage and the nature of the command entrusted to him that he had this power.

truce begins.

§ 149.

A truce is binding on the parties to it from the time when Time when a they have agreed to its terms, but on private persons from the time when intelligence of it can have reasonably reached them. For injuries inflicted in the interval the sovereign of the injurer is responsible. When a general suspension of arms is agreed upon, it is not unusual to provide that it shall take effect in different portions of the theatre of war or parts of the world at different times, so as to afford opportunity to give notice of it to all who are concerned in, or whose business is affected by the war.

A truce being in itself a mere negation of hostilities, it is a

1 Truce, in medieval Latin treuga, in Ital. tregua, properly denotes, according to Dietz, security, pledge, and is the same with Gothic triggva, old German triuwa, French treve. In old French truwe, in Anglo-Norman trewe, has this sense. Can truce be the plural of true or trewe-inducia? Armistice, not used in Latin, but formed analogically, is, we believe, quite a modern word.

2 Heffter, § 142.

little difficult to say what may or may not be done during its continuance. The following rule, if we are not de- What can be ceived, expresses the views of most text-writers: that done in a truce? the state in which things were before the truce is so far to be maintained that nothing can be done to the prejudice of either party by the other, which could have been prevented in war, but which the truce gives the power of doing. But may a besieged place, during a truce, repair its walls and construct new works? This, which Wheaton after Vattel denies, is affirmed by Heffter (u. s.), after Grotius and Puffendorf. Heffter also declares it to be unquestioned that the besieger cannot continue his works of siege, thus giving to the besieged in any partial truce the advantage over his foe. The question is whether to strengthen works of offence or of defence is an act of hostility, and is consistent with a promise to suspend hostilities. It would appear that neither party can act thus in good faith, unless it can be shown that the usages of war have restricted the meaning of truce to the suspension of certain operations. The rule then laid down by Vattel, and which he is obliged to qualify by several others, namely, that each may do among themselves, that is, within their own territories or where they are respectively masters, what they would have the right to do in peace, is true only of the general operations of war. A power may use the interval in collecting its forces, strengthening its works which are not attacked, and the like. But, when we come to the case of besieged towns, the question is of what are the two parties masters, and various quibbles might be devised to allow either of them to do what he pleased. The governor of a town, says Vattel, may not repair breaches nor construct works which the artillery of the enemy would render it dangerous to labour upon during actual siege, but he may raise up new works or strengthen existing ones to which the fire or attacks of the enemy were no obstacle. Why, if this be so, may not the besiegers strengthen their works which are not exposed to the guns of the fortress?

End of a truce.

When a truce is concluded for a specified time, no notice is necessary of the recommencement of hostilities.2 Everyone who lingers freely in the enemy's country or within his lines, after this date, is obnoxious to the law of war. But forced delay on account of illness, or other imperative reason, would exempt such a one from harsh treatment.

1 Grotius, iii. 21, § 7; Puffend. viii. 7, § 10. Cocceii on Grot. u. s. § 10, denies it. So Vattel, iii. 16, § 247; Wheaton, El. iv. 2. § 22.

2 The Romans gave such notice to the Vejentes (Livy, iv. 30) by the usual ceremony. (§ 115.) But they seem to have rarely been at peace with the Etruscan States, truce taking its place, and so adopting its ceremonies.

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