ships taken before the War of 1741, were restored by the Admiralty Court, both during the heat of the conflict and afterwards, to the French

owners.

Such property may not be confiscated, because, but for the wrong done, it would not have been within the territory of the belligerents. Mr. Chancellor Kent cites the Santa Cruz(z) as an instance that in England such property is subject to the rules of vindictive retaliation. But this seems to be a mistake. Lord Stowell is not speaking of property wrongfully taken, but of property lawfully seized by Embargo, when he says, "at the breaking out of War it is the constant practice of this country to condemn property seized before the War, if the enemy condemns, and to restore if the enemy restores."

The restoration in these cases is not matter of right, but of expediency. The English Law-officers, in the Memorial which has been just mentioned, were speaking of restoration in cases where wrong had been done.

*CHAPTER VII.

WAR-WHO MAY MAKE.

[*137]

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 unauthorized subject carry on War, or make captures, it may be an offence against the sovereignty of his own nation, but it is not 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 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

(z) 1 Rob. Adm. Rep. 64.

[*138]

(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.

(d) Ib., s. 228.

(c) Ib., s. 224.

(e) Et vide ante, vol. i. p. 393. (ƒ) Brown v. The United States, 8 Cranch, (Amer.,) 133. (Story.)

retroactively ratify and validate the unauthorized 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 though 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 authorized 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 unauthorized expeditions; (i) and in cases where private 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 [*139] 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 searcely a decision of the Prize Courts on any general question of public usage which has not received the express approbation and sanction of our national courts."(r)

XCIII. We have seen under what circumstances the property of Foreign Corporations may be subject to Belligerent Rights; it remains

(g) Thorshaven, 1 Edwards's Rep. 102.

(h) The Elsebe, 5 Rob. 173. The Maria Françoise, 6 Rob. 282; 11 East's Rep. 619. Brown v. The United States, 8 Cranch, (Amer.,) 131.

The Rebeckah,
The Charlotte,
Hale, in Har-

(i) The Aquila, 1 Rob. 37. The Twee Gesuster, 2 Ib. 284, n. 1 Ib. 227. The Gertruyda, 2 Ib. 211. The Mariamne, 5 Ib. 11. Ib. 282. The Richmond, 5 Ib. 325. Thorshaven, 1 Edward, 102. grave's Law Treatises, c. xxviii. 245. (k) The Walsingham Packet, 2 Rob. 77. The Etrusco, 4 Ib., p. 262, note, and see cases just cited.

(1) Brown v. United States, Cranch, (Amer.,) 132.

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

(p) L. iii. c. vi. ss. 2, 10, 12.

(m) Ib. 132, 134.

(0) L. iii. c. xv. ss. 22-328.

(4) Q. J. P., cc. iii. xviii. xx. "Looking to the general scope of his arguments (id., 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.

(r) Part. i. 1. iii. p. 70.

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 [*140] 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) present 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 regulates 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 char

acter.

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

Memorable also is the language of our own Lord Bacon upon the same subject: It were," he says, "just and honourable for princes, being in wars together, that however they 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 [*141] 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.

(t) Vol. i. s. 122.

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

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

"For in the examples of times which were less corrupted, we find that when, in the greatest heats and extremities of wars, there have been made offers of murderous and traitorous attempts against the person of a prince to the enemy, they have been not only rejected, but also revealed; and in like manner, when dishonourable mention shall have been made of a prince before an enemy prince by some that have thought therein to please his humour, he has shown himself, contrariwise, utterly distasted therewith, and been ready to contest for the honour of an enemy."(y)

Nevertheless, stratagems by land and sea are not held to violate the laws of War. Thus, the ambush, the disguise of uniform, the false flag are allowable, though it is held that before a naval action be begun the true flag should be hoisted.

With respect to open means, the employment of savages(z) *and [*142] cannibals, the well-known subject of Chatham's vehement censure, the use of poisoned weapons, the wanton devastation of territory, the slaughter and ill-usage of the unarmed and unoffending men, much more of women and children, are universally reprobated. (a)

Yet the use of every instrument of open destruction (though the nonuse of particular kinds of shot has sometimes been the subject of treaties,) the cutting off the resources of the enemy, by stopping the supplies of water, or by devastating the adjacent territory, are certainly legitimate means of harrassing the foe.

XCV. Something must be said with respect to the belligerent's right over the person of (1) the enemy and (2) of the prisoner. (b)

In the middle ages, when the most gross and cruel treatment of prisoners prevailed, the Western(c) and the Eastern Churches contributed, as we have seen, all the mitigation in their power to the exercise of their hostilities; and the Third Council of Lateran (A. D. 1179) forbad Christians to make or to purchase slaves,—a principle which the Eastern Church also enforced about eighty years afterwards (A. D. 1260.)

*1. As to the enemy before he is a prisoner. (d) Soldiers are [*143] not of the unoffending and unarmed class referred to in the last paragraph, to wound and to kill, to be wounded and to be killed, is a large part of their terrible though necessary vocation in this imperfect

(y) Lord Bacon, Certain Observations upon a Libel published this present year, 1592, vol. v. p. 384. (Ed. B. Montagu.)

(z) "But who is the man that has dared to authorise and associate to our arms the tomahawk and scalping-knife of the savage? To call into civil alliance the wild and inhuman savage of the woods; to delegate to the merciless Indian the defence of disputed rights; and to wage the horrors of his barbarous War against our brethen? These enormities cry aloud for redress and punishment, and, unless done away with, will leave an indelible stain on the national honour." -Speech of Lord Chatham, in Adolphus's Hist. of England, vol. ii. p. 485.

(a) In the War now waged by England, France, and Turkey, against Russia (1854) in the Crimea, the English General refused to abstain from firing upon a particular quarter of Sebastopol, said to be inhabited by women and children, but offered them a free passage beyond the lines of the army. Vattel, 1. iii. c. viii. passim.

(b) Martens, 1. viii. c. iii. (c) De Sagittar., 1. x. c. i. 69, 86.

De Treugâ et Pace, 1. x. c. ii. Pütter, Beitr., pp.

(d) Vattel, 1..iii. c. viii. passim.

and unquiet world. But when, whether by surrender or by capture, they are manifestly without the will or the power to resist, their injury or destruction is brutal, sinful, and indefensible. (e) The conqueror is obliged, by the laws of just War, to spare those who lay down their arms, who ask for quarter, or who lie wounded and helpless,-to put such to death is to commit murder. And those who commit it ought to die by the hand of the hangman, and not of the soldier. It is said that exceptions to this generally admitted rule are furnished by cases in which the preservation of the life of the enemy is inconsistent with your own safety, in which the cruelty of the enemy justifies and necessitates retaliation, in which the crime of the enemy before he becomes defenceless, warrants you in taking his life.

2. As to the enemy after he is a prisoner. Is Henry V. to be condemned, when, after the battle of Agincourt was over, being suddenly attacked by a body of armed peasants, he ordered his numerous prisoners to be put to death, lest the scanty remains of his victorious army should be annihilated? Was Anson justifiable, when, after the capture of the Acapulco galleon, finding that his crew was outnumbered by his prisoners, he consigned the latter to the horrors and dreadful suffering of incarceration in the hold?

These are instances "at which morality is perplexed, reason is staggered, and from which affrighted nature recoils."(f) At least, it may be said, that the clearest evidence of the absolute necessity of selfpreservation is required to palliate them. The *prisoner who has yielded under conditions, cannot be injured so long as he [*144] fulfils his part of the condition. The prisoner who has made no such condition may be subject to all necessary restraint, proportioned, of course, to his readiness to submit or his intention to escape.

But surely the brave, the wise, and the humane will join in preferring the conduct of Charles XII., when, after the battle of Narva, he disarmed and set at liberty the prisoners who encumbered him, to that conduct of his adversary, who after the battle of Pultowa, sent the prisoners, whose prowess he had experienced and dreaded, into the wilds of Siberia.

The selling(g) prisoners as slaves, is, as Vattel observes, a disgrace to humanity, happily banished from Christendom. (h) Prisoners are ex

(e) "Weder in dem einem noch anderen Falle kann nach Rechtsregeln dem Gefangen noch das Leben gefangen werden; denn jede erlaubte Gewalt endigt wenn der Gegner widerstandloss geworden ist, und berechtiget bloss zu weiteren Sicherungsmitteln."-Heffters, s. 127. Vide ante, p. 73.

(f) Burke's Works, vol. iv. p. 127.

(g) "of being taken by the insolent foe,

And sold to slavery, and my redemption thence."-Oth., act 1, sc. 3. Vide ante, vol. i. c. xvii. pp. 317-18, SLAVERY AND THE SLAVE TRADE, and ib. the opinion of Grotius and Bynkershoek.

(h) "Le droit de guerre, disent les jurisconsultes Romains, permet de tuer les prisonniers; en les rendant esclaves, on leur fait grâce de la vie. Nous répondons, avec Brusseau, que 'la guerre n'est point une relation d'homme à homme, mais une relation d'Etat à Etat, dans laquelle les particuliers ne sont ennemis qu'accidentellement, non point comme hommes, ni même comme citoyens, mais comme soldats. La fin de la guerre étant la destruction de l'Etat ennemi, on a droit d'en tuer les défenseurs tant qu'ils ont les armes à la main; mais sitôt qu'ils les posent JULY, 1857.-10