페이지 이미지
PDF
ePub

resists the attempts of a libertine, should also be deemed deserving of punishment.

Every thing is lawful against an enemy, but nothing can be . more cruel than to punish him for his courage. Nay, we even admire the courage of our enemies, and we are indignant at their cowardice. I remember to have read, that the Algerine corsairs tore to pieces and loaded with every kind of ignominy a certain captain who had meanly given up his vessel when she was in a condition very fit for defence, and had only stipulated for the libertflof his own person. For even with enemies fortitude is glorious and cowardice contemptible. If you wish to read what others have written upon this subject, you maybe gratified by reading Gentilis, dejure Belli, 1. 2. c. 16.; Grotius, deJ.B.acPac. \.t 3. c. 4. § 13., and Zouch, de Jur. Fee* part 2. § 10. Q. 9.

We have laid down what it is lawful to do with living enemies, but what shall we say of the remains of those who are dead? In ancient times their bodies were abandoned to beasts and birds of prey, but now the conquerors either bury them themselves, or deliver them up to be buried. Sometimes even more is done for the sake of humanity. Op the 16th of September 1666, the states-general caused the body of an English admiral which was in their power to be embalmed, and sent it over to England. They had before, viz. on the 10th of July 1666, written to the king of England, to know whether he wished that corpse to be sent thither or be buried in Holland, and on the 4th of August 1666 he chose the former. The French did the same thing in the year 1692*

There can be no doubt but that from the nature of war itself, all commercial intercourse ceases between enemies. For to what purpose will trade be carried on, if, as is clearly the case, the goods of enemies brought into our country are liable to confiscation? And if he who having obtained the right of killing his enemy should go with merchandize into the hostile country, and the enemy should kill him in the midst of

* This work is sometimes referred to by the title De Jure Feciali, sometimes by that De Jure inter getitee, which is indifferent, as it bears both titles. T.

commercial intercourse, would you think it justly done? But every commercial intercourse ceases. Hence in declarations . of war commerce with the enemy is prohibited, and it is often done by subsequent edicts. By the eleventh section of the edict of the earl of Leicester of the 4th of April 1586, interdicting trade with the Spaniards, it is enacted that those who should carry on such commerce contrary to that edict should be hanged and their ships and goods confiscated, if they were subjects, but if foreigners, they should only be punished by the confiscation of their ships .and merchandize. The same was enacted by the twelfth section of the edict of the said earl of the 4th of August 1586. And by the thirteenth section of the edict of the 4th of April, and the fourteenth of that of the 4th of August, the intention to carry on trade with the enemy was punished in the same manner as the fact itself, and thus the states of Holland had formerly enacted on the 27th of July 1584. It was moreover added to all those edicts, that there should be no prescription or limitation against the charge of having traded with the enemy, whether they were taken in the fact or not. And by the same edict of the states of Holland of the 27th of July 1584, the pecuniary penalties which it inflicts were to be recovered not only from the delinquent but from his heirs, which I do not believe to be conformable to the Roman law: for the offence provided against by these edicts does not, if we will be candid, amount to the crime of treason, but is a particular species of offence, to which one is instigated by cupidity and the love of gain rather than by a treasonable intent.

But although trading with the enemy be not specially prohibited, yet it is forbidden by the mere operation of the law of war. Declarations of war themselves sufficiently shew it; for they enjoin on every subject to attack the subjects of the other prince, seize on their goods, and do them all the harm in their power. The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the law of war as to commerce. Hence it is alternately permitted and forbidden in time of war, as princes think it most for the interest of their subjects. A commercial nation is anxious to trade, and accommodates the laws of war to the greater or lesser want that it may be in of the merchandizes of others. Thus sometimes a mutual commerce is permitted generally; sometimes as to certain merchandizes only, while others' are prohibited, and sometimes it is prohibited altogether. But in whatever manner it may be permitted, whether generally or specially, it is always, in my opinion, so far a suspension of the laws of war. And in this manner, there is partly war and partly peace between the subjects of both princes.* The herring fishery was permitted on both sides by the edicts of the French and Dutch of the year 1536, and formerly by the edict of the latter of the 22d of December 1552. To which is to be added, what was done during the whole of the Spanish, Portuguese and English war, in the years 1653,1665 and 1672, and also during the French-wax in the years 1672, 1689 and 1702, for it would be too long to commemorate tilery thing.

It is a question whether our friends are to be considered as enemies, when they live among the latter, say in a town which they occupy. Petrinus Bellus, de Re Milit. part 2. tit. 11. n. 5., thinks that they are not. Zouch, de Jure Fee. part 2. § 8. Q. 4., gives no opinion. For my part I think that they must also be considered as enemies, certainly as to the goods which they have within the hostile territory, and therefore those goods may properly be taken,by us by-the law of war, if they have been before taken by our enemies. We may lawfully take all that belongs to the enemy, and those goods are a part of the enemy's dominion, which as they may be useful to them, may be hurtful to us. But if the goods of friends are within our territory, although their owners may be within that of the enemy, being detained there as prisoners by the law of war, I would then speak differently; because it is true that these are' not the enemy's goods, nor can they be at all useful to him. Again, as we are to do to our enemies all the harm that we can,

* How is it, when, as in the present European war, the belligerents trade with each other, and prohibit neutrals from trading with their respective enemies! According to our author's opinion, it seems that such belligerents are so far at peace with one another, and at war with the neutral nations. T. why shall we not take from them goods which they themselves have occupied by the law of war, and which they make use of as of their own? I know upon what principle others are of a different opinion.* They say that our friends, although they are among our enemies, yet are not hostilely inclined against us; for if they are there, it is not from their choice, and the quo ammo cfnly is to be considered. But the thing does not depend only on the quo animo; for, even among the subjects of our enemy, there are some, however few they may be, who are not hostilely inclined against us; but the matter depends upon the law, because those goods are with the enemy, and because they are of use to them for our destruction.

* Our author here distinguishes between the goods of a friend which ave within ourterritory, while the friendly owner is a prisoner with the enemy, and those whicli huviii^been captured by the enemy, as well as the person of the owner, are retmm by us. The latter, he contends, are, though the former are not, liable to confiscation. T

CHAPTER IV.

Of the Capture of movable property, and particularly of Ships.

* TM enemies, we shall now speak of their goods and actions. It is evident that the enemy's property, whether movable or immovable, may be lawfully taken. To whose benefit the capture enures, whether to the private captors or to the state, I shall not now examine, as I am to consider this subject in the 20th chapter. But I shall at present attend to another question, which is not less important and which occurs every day, From what time is property changed by capture? I shall not distinguish here between ths different species of.personal property; whether a man be taken, or a ship, or merchandize, or' furniture, or any thing else which may be properly the object of capture. By the Roman law, as Grotius very properly observes, the things taken are said to become the property of the captors, when they are carried intra prcesidia,* for which doctrine there is no other reason, but that now every hope 'of pursuing and recovering the thing taken is at an end. "Whence," says the same author,f "it seems to follow, that ships and other things taken on the high sea^are considered as effectually captured, when they have r^Ri carried into a port or harbour, or in a place where the whole fleet is, for now their , recovery begins to be despaired of. But," he adds, "by the modern law introduced among European nations, such things, in order to be considered as captured, must have been twenty-four hours in the power of the enemy." Which doctrine he applies in his notes to those things which

• Grot. De J. B. ac P. 1. 3. c. 6. §3. n. 1. f Ibid n. 2.

[graphic]

E have in the former chapi

ters treated of the persons of

« 이전계속 »