Distinction property, sea, or on The progress of civilization has slowly, but constantly,§ 355. tended to soften the extreme severity of the operations of war between by land; but it still remains unrelaxed in respect to maritime private warfare, in which the private property of the enemy taken at taken at sea or afloat in port, is indiscriminately liable to capture and land. confiscation. This inequality in the operation of the laws of war, by land and by sea, has been justified by alleging the usage of considering private property when captured in cities taken by storm, as booty; and the well-known fact that contributions are levied upon territories occupied by a hostile army, in lieu of a general confiscation of the property belonging to the inhabitants; and that the object of wars by land being conquest, or the acquisition of territory to be exchanged as an equivalent for other territory lost, the regard of the victor for those who are to be or have been his subjects, naturally restrains him from the exercise of his extreme rights in this particular; whereas, the object of maritime wars is the destruction of the enemy's commerce and navigation, the sources and sinews of his naval power-which object can only be attained by the capture and confiscation of private property. The strictness of the rule subjecting all the enemy's property on the § 355 a. Enemy's high seas to confiscation was somewhat modified by the Declaration of goods unParis, 1856, which provides, in its second article, that "The neutral flag der a neucovers enemy's goods, with the exception of contraband of war" (d). tral flag. Almost all civilized powers, with the exception of the United States, are parties to this Declaration (e). property on The indiscriminate seizure of private property on land would cause § 355 b. the most terrible hardship, without conferring any corresponding advan- Capture of tage on the invader. It cannot be effected without in some measure the high relaxing military discipline, and is sure to be accompanied by violence seas. and outrage. On the other hand, the capture of merchant vessels is usually a bloodless act, most merchant vessels being incapable of resisting a ship of war. Again, property on land consists of endless varieties, much of it being absolutely useless for any hostile purpose, while property at sea is almost always purely merchandise, and thus is part of the enemy's strength. It is, moreover, embarked voluntarily, and with a knowledge of the risk incurred, and its loss can be covered by insurance (ƒ). An invader on land can levy contributions or a war indemnity from a vanquished country, he can occupy part of its territory and appropriate its rates and taxes, and by these and other methods, he can (d) [See Appendix G.] (e) [Hertslet, Map of Europe, vol. ii. p. 1282.] § 355 c. What are enemy's goods. enfeeble the enemy and terminate the war. But in a maritime war, a belligerent has none of these resources, and his main instrument of coercion is crippling the enemy's commerce (g). If war at sea were to be restricted to the naval forces, a country possessing a powerful fleet would have very little advantage over a country with a small or with no fleet. If the enemy kept his ships of war in port, a powerful fleet, being unable to operate against commerce, would have little or no occupation (h). The United States proposed to add to the Declaration of Paris a clause exempting all private property on the high seas from seizure by public armed vessels of the other belligerent, except it be contraband; but this proposal was not acceded to (i). Nor does it seem likely, for the reasons stated above, that maritime nations will forego their rights in this respect. It is often a matter of difficulty for a prize court to determine to whom property captured at sea actually belongs. The general rule is that if goods are shipped on account and at the risk of the consignee, they are considered his goods during the voyage. In such a case delivery of the goods to the master is a delivery to the consignee (k). In time of peace the parties may of course agree to any terms they please, as to whose risk the property should be at during the voyage, but in time of war, or in contemplation of war, the rule of prize courts is, that property which has a hostile character at the commencement of the voyage, cannot change that character by assignment while it is in transitu, so as to protect it from capture (1). Unless such a rule were adopted, all property passing between a neutral and a belligerent would be colourably assigned to the neutral, and the belligerent right of capture would be comparatively worthless. It is therefore the duty of a prize court to ascertain in whom the property was vested at the outset of the voyage, and in this inquiry all equitable liens on enemy's property are disregarded, and all revelations of risk to neutral consignors are held to be fraudulent (m). On the other hand, enemy's liens on neutral property are equally disregarded, being held not to confer such an enemy character on the ship or goods as to subject them to confiscation (n). If, however, the shipment as well as the contract, laying the risk on the neutral consignor, were both made in time of peace, and are proved to have been bona fide, and not in contemplation of war, the ownership which was in the neutral consignor at the beginning of the voyage remains in him until its termination, and the goods will not be condemned (0). Nor are they condemned when shipped by an enemy (g) [Ortolan, Diplomatie de la Mer, liv. iii. ch. ii.] (h) [Field, Int. Code (2nd ed.) p. 527.] (i) [Halleck, ch. xx. § 3.] (k) [The Packet de Bilboa, 2 C. Rob. 133. Duer on Insurance, vol. i. pp. 421-2.] (7) [Kent, Comm. vol. i. p. 86 (12th ed.) Duer on Insurance, vol. i. p. 431. The Francis, 1 Gallison, 445.] (m) [Kent, vol. i. p. 87 (12th ed.). The Josephine, 4 C. Rob. 75; The Tobago, 5 C. Rob. 218; The Marianna, 6 C. Rob. 24; The Ida, 1 Spinks, 26.] (n) [The Ariel, 11 Moo. P. C. 119.] (0) [Halleck, ch. xx. § 9. Duer on Insurance, i. p. 425. The Atlas, 3 C. Rob. 299.] § 355 d. during war, if it is proved beyond all doubt that they were shipped absolutely at the risk of a neutral consignee. Such transactions are, however, carefully scrutinized in a prize court (p). The only case in which the right of stoppage in transitu can be exercised during war is in the expectation, confirmed by the event, of the insolvency of the consignee (q). The transfer of ships from belligerents to neutrals during war, is always looked upon very suspiciously, and clear proof of bona fides is required to Sale of ships by save the ship from condemnation (r). Thus, a British ship alleged to belligerents have been sold to a neutral after hostilities had broken out between to neutrals. England and Holland, was captured while trading between Guernsey and Amsterdam under the command of her former master, who had also been the owner. She was condemned as prize for trading with the enemy, the transfer being deemed colourable and void (s). But if the sale of a ship by a belligerent to a neutral be absolute and bona fide, it is then permitted either during war or in contemplation of it, and whether she is lying in an enemy or a neutral port. All interest of the vendor in the ship must be completely divested, but the mere non-payment of part of the price is not conclusive evidence of itself that the vendor's interest is not entirely transferred (t). Vessels of war lying in neutral ports cannot be sold by their belligerent owners at any time during the war. If so sold, a ship of war, even though purchased in good faith, and fitted up as a merchant vessel, remains liable to capture by the other belligerent as long as the war lasts (u). Capture as prize overrides all previous liens (v), and it gives the captor all the owner's rights when the voyage began (x). Even a bona fide mortgagee, a subject of the captor's country, is not entitled to have his mortgage paid out of the proceeds of the sale of the prize (y). What per sons are to engage The effect of a state of war, lawfully declared to exist, is to § 356. place all the subjects of each belligerent power in a state of mutual hostility. The usage of nations has modified this authorized maxim by legalising such acts of hostility only as are com- in hostilities against mitted by those who are authorized by the express or implied command of the State. Such are the regularly commissioned naval and military forces of the nation, and all others called out in its defence, or spontaneously defending themselves in cases of urgent necessity, without any express authority for (p) [Halleck, ch. xx. § 10. Duer on Insurance, i. p. 426. The Aurora, 4 C. Rob. 219.] (7) [Duer on Insurance, i. p. 433. The Constancia, 6 C. Rob. 324; Oppenheim v. Russel, 3 Bos. & Pul. 484.] (r) [Duer, i. p. 444.] (s) [The Omnibus, 6 C. Rob. 71; The Odin, 1 C. Rob. 252.] (t) [The Ariel, 11 Moo. P. C. 129; The Sechs Geschwistern, 4 C. Rob. 100.] (u) [The Georgia, 7 Wallace, 32.] (v) [The Battle, 6 Wallace, 498; The Steamer Nassau, Blatchford Prize Cas. 665; The Ida, 1 Spinks, 35.] (x) [The Sally Magee, 3 Wallace, 451.] (y) [The Hampton, 5 Wallace, 372. Conseil des Prises, 1870-71, p. 75. Le Turner, Barboux, Jurisp. du The Aina, 1 Spinks, 19.] the enemy. captors. that purpose. Cicero tells us, in his Offices, that by the Roman fecial law, no person could lawfully engage in battle with the public enemy, without being regularly enrolled and taking the military oath. This was a regulation sanctioned both by policy and religion. The horrors of war would indeed be greatly aggravated, if every individual of the belligerent States was allowed to plunder and slay indiscriminately the enemy's subjects without being in any manner accountable for his conduct. Hence it is that in land wars, irregular bands of marauders are liable to be treated as lawless banditti, not entitled to the protection of the mitigated usages of war as practised by civilized nations (z). § 357. It must probably be considered as a remnant of the barNon-commissioned barous practices of those ages when maritime war and piracy were synonymous, that captures made by private armed vessels without a commission, not merely in self-defence, but even by attacking the enemy, are considered lawful, not indeed for the purpose of vesting the enemy's property thus seized. in the captors, but to prevent their conduct from being regarded as piratical, either by their own government or by the other belligerent State. Property thus seized is condemned to the government as prize of war, or, as these captures are technically called, Droits of Admiralty. The same principle is applied to the captures made by armed vessels commissioned against one power, when war breaks out with another; the captures made from that other are condemned, not to the captors, but to the government (a). $358. Privateers. The practice of cruising with private armed vessels commissioned by the State, has been hitherto sanctioned by the laws of every maritime nation, as a legitimate means of destroying the commerce of an enemy. The practice has been justly arraigned as liable to gross abuses, as tending to encourage a spirit of lawless depredation, and as being in glaring contradiction to the more mitigated modes of warfare practised by land. Powerful efforts have been made by humane and enlightened individuals to suppress it, as incon (z) Vattel, Droit des Gens, liv. iii. ch. 15, §§ 223-228. Klüber, Droit des Gens Moderne de l'Europe, § 267. (a) Brown's Civ. and Adm. Law, vol. ii. p. 526, Appendix. The Abigail, 4 C. Rob. 72. The Georgiana, 1 Dods. Ad. 397. Sparks's Diplomatic Correspondence, vol. i. p. 443. Wheaton's Rep. vol. ii. Appendix, Note I. p. 7. The treaty nego sistent with the liberal spirit of the age. The first article of the Declaration of Paris recites that "Privateering § 358 a. is and remains abolished." Spain and Mexico, though parties to the Abolition of privarest of the Declaration, have not acceded to this article, and although teering. various attempts have been made to induce the United States to become an accessory, that power is as yet not bound by any part of the Declaration (c). During the American civil war, Congress authorized the President to issue letters of marque, but he did not avail himself of this power. The Confederates offered their letters of marque to foreigners, but the restrictive legislation of the maritime powers, and the threat of the United States of treating such vessels as pirates, prevented their being accepted. The ostensibly Confederate vessels were commissioned as of its regular navy (d). § 359. property war. The title to property lawfully taken in war may, upon general principles, be considered as immediately divested from Title to the original owner, and transferred to the captor. This captured in general principle is modified by the positive law of nations, in its application both to personal and real property. As to personal property or moveables, the title is, in general, considered as lost to the former proprietor as soon as the enemy has acquired a firm possession; which, as a general rule, is considered as taking place after the lapse of twenty-four hours, or after the booty has been carried into a place of safety, infra præsidia of the captor (e). (b) Vattel, liv. iii. ch. 15, § 229. Franklin's Works, vol. ii. pp. 447, 530. Edinburgh Review, vol. viii. pp. 13-15. North American Review, vol. ii. (N. S.) pp. 166-196. Wheaton's Hist. Law of Nations, p. 308. (c) [See Appendix G, p. 732.] (d) [Wheaton, by Dana, n. 173.] (e) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, § 3; cap. 9, § 14. Klüber, Droit des Gens Moderne de l'Europe, § 254. Vattel, Droit des Gens, liv. iii. ch. 13, § 196; ch. 14, § 209. Heffter, Das Europäische Völkerrecht, § 136. |