페이지 이미지
PDF
ePub

all vessels whatever to which a hostile character might reasonably be attributed; and when they fairly discharge that duty, the courts have been astute in discovering reasons to release them, as far as possible, from liability.” (Elise.) Lord Stowell had, in the case of the Diligentia, said:—“If the Admiralty issued an order for the capture of a particular ship, that will not affect the interest of the captor in the prize which he may make. The order of the Admiralty will justify the seizure, so far at least as to indemnify the captor from costs and damages.” Which declaration Dr. Lushington thus expounds:—“Very different is the case where the government gives a lawful order, and the captor, from circumstances, has difficulty in applying it. In the case of an absolute order to seize a particular ship, Lord Stowell expressed his opinion that the captor would be indemnified; that is the case of the Diligentia. That is the expression used by Lord Stowell. Perhaps it may be somewhat ambiguous, but looking at the context, I think that in that case it meant he would not be liable to condemnation in costs and damages in a prize court; ”—and in the case of the Leucade, he exempted the captors from costs and damages for the capture of an innocent vessel belonging to a protected neutral state. 1788. “The officer on shore,” says an eminent prize court advocate, “is not compelled by wind and weather, or any vis major, or any overwhelming necessity, to act according to his unaided discretion upon the spur of the moment, but it is often the bounden duty of the commissioned captor so to act; and it is therefore with reason and justice that prize courts usually award costs, damages, and expenses to the captor when they decree restitution of the vessel which he has seized; ” and again, “the reason of the thing therefore prescribes, that in case of capture on the high sea, if the captain has acted honestly, a less amount of probable cause —to use a phrase now stereotyped in the prize court—of suspicion shall avail, not only to protect him from the payment of damage to the vessel seized, but to insure him the payment of costs from her.” 3 Phil. 536. 1789. This account given by the learned judge of its practice, and by the learned advocate of its principles, will not fascinate neutral nations, or strongly impress the reader with the impartiality of the prize court. We fear that it. may be deemed more consonant with the ancient Scandian (379) than with the modern Scandinavian law. We venture to think that neutral nations will not be satisfied with its “reason and justice,” or easily convinced of “the reason of the thing,”—that they will not approve the stereotyped: phrase of the prize law. s 1790. Let the government which issues the illegal command indemnify both the neutral and its own agent; let the government indemnify the injury inflicted by the mistake of its officer. Nations will deem that more accordant with reason, and more in conformity with the principles on which the derided municipal tribunals administer justice. They do not deem the accused guilty until he is convicted; they call upon the accuser to prove the offence, before they require the accused to vindicate his innocence. Were these principles better observed, there would be no question of neutral convoy, there would be no place for armed neutralities, no outcry from merchants ruined by the usurpations of war. 1791. Their precedents have inflicted on the people of France and England, during the present war, a wide-spread misery, from which, had their governments and prize courts conformed to the law of reason and nations, they would have been exempt. Their conversion of blockades into prohibitions of commerce seemed to sanction a practice which they were ashamed to contravene. They may be content to atone for their transgressions by submitting to the reprisals inflicted by the insulted law. The children in the second and third generation may be content to pay the penalty of their forefathers' offences. Their precedents may be cited against them with apparent force; but nations are not such unities as to be bound to submit to retaliation for every atrocity which their ancestors have perpetrated in semi-barbarous times. Their conduct is to be regulated by the reality of the law. Whether such submission redounds to their honour may not be always clear. It undoubtedly manifests their moderation; it may induce the insults which moderation not unfrequently provokes. They may flatter themselves that such submission will ratify their practice, as precedents for future times; but neither the repetition of their offences by others, nor an ignominious complicity of their own, will consecrate a wicked institution or constitute a law.

CHAPTER XIV.
RECOGNITION.

1792. HAs a kingdom been subdued ? Has a province been irrecoverably conquered? Has an insurgent colony been reduced to obedience, or has it achieved its independence? Has a federation resolved itself into its elements, or have they recombined in several leagues? Has unity ceased to be a reality, or has that, which was formerly one, been irreparably severed? Do the belligerents confront each other like nations? Do they stand in the attitude and wield the power of independent states ? Are they respectively alike, offensive and defensive, engaged alike in resistance and in attack P. Or is it a doubtful struggle in a province which has hardly a hope beyond protracted resistance? These are questions of fact, the nations are concerned in the decision.

1793. Rebellion has grown into insurrection. The insurgents have become a belligerent. The nations were compelled to admit it. The belligerent has become a nation. When shall the empires and the kingdoms proclaim it? Shall they wait till the frenzy of the desperate antagonist has declared it P Must they delay until the tyrant has been vanquished and implores their aid P 1794. The sword has reaped the lands, and the bale-fires have consumed them. The plains are heaped with carnage, and the rivers are flowing with blood. Desolation sits in the dwellings. Invasion has executed its havoc. The cry for mercy through the wide regions has rent the air in vain. The desolators are repelled, their scattered hosts are rolled back over their own frontier, flying before the ministers of vengeance. The invader is invaded. The desolation and ravage of retaliation have begun. Stay the repetition, arrest the retaliation of conflagrations and murders. Humanity calls aloud to stop the barbarities. Honour re-echoes the call. The universal interest of nature and nations demands the termination of the terrific and hopeless contention. 1795. The physical fact is established, the nation is rent in twain. The declaration of their deliberate, dispassionate, impartial judgment is not a breach of neutrality towards either; it is the duty of all towards both to repress their reciprocal ravage, to proclaim that the warfare is hopeless, and by the force of recognition to arouse the slumbering reason of the despot who still struggles for dominion, and still hopes in the throes of despair.

CHAPTER XV.
INTERVENTION.

1796. WHETHER the neutrals shall proceed further, shall cast off their neutrality, and add the force of arms to the efforts of persuasion, involves other considerations. They are not uninterested spectators. Their commerce is disturbed, their interests are compromised, and they have a right to see that the laws of nature and of humanity are observed, that civilized men do not degenerate into savages. They have a right to say, your conflicts have proceeded thus far, the peace and the happiness of the world are endangered, society is disorganized, we will endure the ransacking of our ships and the spoliation of our cargoes no longer, there shall be an end of this unrighteous conflict; you may both be ruined, but neither reduced to compliance with the other's demands. The neutral nations have a right to say, this is not a petty disturbance of a little colony, struggling for what may or may not be its freedom, for what may or may not be a justifiable plan of independence, with which others are little concerned. It is a mighty quarrel in which the interests of the world are involved; unless you cease, we will throw our swords into the scale, determine our neutrality, and compel the refractory party to yield to reason, or to the aggregate force of our arms. But no duty is so imperative on a nation as to require it to enter upon war, unless in accordance with its honour, nor, except when bound by treaty, unless in accordance with its interest. It is not bound to involve itself in danger, or to lavish the blood and the treasure of its subjects in a doubtful strife.

CHAPTER XVI.
PEACE.

1797. THE belligerents begin to faint and grow weary of mutual destruction, they begin to listen to the dictates of reason, and to negotiate for the restoration of peace. A truce or an armistice suspends their hostilities; no ship. must be captured, nor army nor fortress assailed, within the region of the temporary cessation of war. They must

« 이전계속 »