character of

§ 340. So, also, in general, and unless under special National circumstances, the character of ships depends on the ships. national character of the owner, as ascertained by his domicil; but if a vessel is navigating under the flag and pass of a foreign country, she is to be considered as bearing the national character of the country under whose flag she sails: she makes a part of its navigation, and is in every respect liable to be considered as a vessel of the country; for ships have a peculiar character impressed upon them by the special nature of their documents, and are always held to the character with which they are so invested, to the exclusion of any claims of interest which persons resident in neutral countries may actually have in them. But where the cargo is laden on board in time of peace, and documented as foreign property in the same manner with the ship, with the view of avoiding alien duties, the sailing under the foreign flag and pass is not held conclusive as to the cargo. A distinction is made between the ship, which is held bound by the character imposed upon it by the authority of the government from which all the documents issue, and the goods, whose character has no such dependence upon the authority of the State. In time of war a more strict principle may be necessary; but where the transaction takes place in peace, and without any expectation of war, the cargo ought not to be involved in the condemnation of the vessel, which, under these circumstances, is considered as incorporated into the navigation of that country whose flag and pass she bears. (a) 163

(a) Robinson's Adm. Rep. i. 1, The Vigilantia; v. 161, The Vrow Anna Catharina. Dodson's Adm. Rep. i. 131, The Success.

[163 This subject of flags and papers needs elucidation. Where a State has authority to inquire into the national character of a merchant vessel apparently of another State, for any purpose, whether of war or peace, it cannot be bound by the flags or papers used. It can go behind the ostensible nationality indicated by these, and ascertain the actual nationality, which depends on the domicil of the owner and other facts. The State may, if it chooses, hold the ship concluded by the fact of having used the flags and papers she has knowingly carried, if that result is favorable to the interests of the State. This is usually done in war, and may be done in peace. It is simply the application to the inquiry of a rule of conclusive presumption or estoppel against a party. Whether it shall be enforced depends on State policy. The vessel cannot claim the application of the rule in its own favor. So, if it shall appear that the flags and papers of a certain nation are used by the permission of that nation in the particular case, giving to the vessel a spurious national character, that permission does not affect the right of the State making the inquiry, as between itself and the owner of the vessel, to go beyond the flags and papers and ascertain the actual nationality, and treat the vessel accordingly. If thẻ nation which has granted the permission should interpose, the question is a political one between the two nations.] — D.

Sailing under the enemy's license.

§ 341. We have already seen that no commercial intercourse can be lawfully carried on between the subjects of States at war with each other, except by the special permission of their respective governments. As such intercourse can only be legalized in the subjects of one belligerent State by a license from their own government, it is evident that the use of such a license from the enemy must be illegal, unless authorized by their own government; for it is the sovereign power of the State alone which is competent to act on the considerations of policy by which such an exception from the ordinary consequences of war must be controlled. And this principle is applicable not only to a license protecting a direct commercial intercourse with the enemy, but to a voyage to a country in alliance with the enemy, or even to a neutral port; for the very act of purchasing or procuring the license from the enemy is an intercourse with him prohibited by the laws of war: and even supposing it to be gratuitously issued, it must be for the special purpose of furthering the enemy's interests, by securing supplies necessary to prosecute the war, to which the subjects of the belligerent State have no right to lend their aid, by sailing under these documents of protection. (a) 164

CHAPTER II.

Rights of war against

RIGHTS OF WAR AS BETWEEN ENEMIES.

§ 342. IN general it may be stated, that the rights of an enemy. war, in respect to the enemy, are to be measured by the object of the war. Until that object is attained, the belligerent has, strictly speaking, a right to use every means necessary to accomplish the end for which he has taken up arms. We have already seen that the practice of the ancient world, and even the opinion of some modern writers on public law, made no distinction as to the means to be employed for this purpose. Even such insti(a) Cranch's Rep. viii. 181, The Julia; Ibid. 203, The Aurora. Wheaton's Rep. ii. 143, The Ariadne; Ibid. iv. 100, The Caledonia.

[164 See note 158, ante, Intercourse with the Enemy; and note 198, infrà, License to Trade with the Enemy.]-D.

tutional writers as Bynkershoek and Wolf, who lived in the most learned and not least civilized countries of Europe, at the commencement of the eighteenth century, assert the broad principle, that every thing done against an enemy is lawful; that he may be destroyed, though unarmed and defenceless; that fraud, and even poison, may be employed against him; and that an unlimited right is acquired by the victor to his person and property. Such, however, was not the sentiment and practice of enlightened Europe at the period when they wrote; since Grotius had long before inculcated milder and more humane principles; which Vattel subsequently enforced and illustrated, and which are adopted by the unanimous concurrence of all the public jurists of the present age. (a) 165

Limits to war against the rights of

the

person

of an ene

§ 343. The law of nature has not precisely determined how far an individual is allowed to make use of force, either to defend himself against an attempted injury, or to obtain reparation when refused by the aggressor, or to my. bring an offender to punishment. We can only collect from this law the general rule, that such use of force as is necessary for obtaining these ends is not forbidden. The same principle applies to the conduct of sovereign States, existing in a state of natural independence with respect to each other. No use of force is lawful, except so far as it is necessary. A belligerent has, therefore, no right to take away the lives of those subjects of the enemy whom he can subdue by any other means. Those who are actually in arms, and continue to resist, may be lawfully killed; but the inhabitants of the enemy's country who are not in arms, or who, being in arms, submit and surrender themselves, may not be slain, because their destruction is not necessary for obtaining the just ends of war. Those ends may be accomplished by making prisoners of those who are taken in arms, or compelling them to give security that they will not bear arms against the victor for a limited period, or during the continuance of the war. The killing of prisoners can only be justifiable in those extreme cases where resistance on their part, or on the part of others who come to their rescue, renders it impossible to keep them. Both reason and gen

(a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 1. Wolfius, Jus Gent, 878. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 4, §§ 5-7. Vattel, Droit des Gens, liv. iii. ch. 8. [165 Note 166, infrà, Usages of War.] —D.

eral opinion concur in showing, that nothing but the strongest necessity will justify such an act. (a) 166

(a) Rutherforth's Inst. b. ii. ch. 9, § 15.

[166 Usages of War. This subject has been fully treated by Professor Bernard, in an essay on the Growth and Usages of War, in the Oxford Essays of 1856. The history of the changes in the laws of war has been discussed by Mr. Wheaton, in his History of the Law of Nations, 760; and by Mr. Senior, in the Edinburgh Review, lxxii. See also Halleck's Intern. Law, 425-445; Woolsey's Introd. §§ 125-135; Ward's Hist. ch. 9, 15; and the Instructions for the Government of the Armies of the United States, drawn by Dr. Francis Lieber, and adopted by the Secretary of War, in General Order No. 100, April 24, 1863. Dr. Bluntschli, of Heidelberg, has just issued, too late for notice in this work, the first part of a treatise on the Modern Laws of War. The subject is best treated under several heads.

(I.) Weapons of War and other Means of Destruction. Nations seem to concur in denouncing the use of poisoned weapons, the poisoning of springs or food, and the introduction of infectious or contagious diseases. As to the nature of weapons not poisoned, there is, and perhaps can be, no rule. Concealed modes of extensive destruction are allowed, as torpedoes to blow up ships, or strewed over the ground before an advancing foe, and mines; nor is the destructiveness of a weapon any objection to its use. Hot shot is permitted, and bombshells, to set fire to a vessel or camps or forts; but it is not thought justifiable to use chemical compounds which may maim or torture the enemy. It seems to be thought that a steam-vessel, on the defensive, may throw her steam or boiling water upon boarders.. Assassination is prohibited. As war will avail itself of science in all departments, for offence and defence, perhaps the only test, in case of open contests between acknowledged combatants, is, that the material shall not owe its efficacy, or the fear it may inspire, to a distinct quality of producing pain, or of causing or increasing the chances of death to individuals, or spreading death or disability, if this quality is something else than the application of direct force, and of a kind that cannot be met by countervailing force, or remedied by the usual medical and surgical applications for forcible injuries, or averted by retreat or surrender. Starving a belligerent force, by cutting off food or water, is also lawful; for that may be so averted.

(II.) Employment of Savage Allies. The employment, though open and acknowledged, of savage allies who do not recognize the laws of war and of nations, against a civilized enemy, is discountenanced by the best jurists and statesmen of modern times. It is not a valid objection that individual soldiers are of a barbarian race or pagan religion, when they are subjected to the articles of war, and under the responsible command of officers of a civilized nation.

(III.) Desertion and Violation of Parol. The penalty for desertion is not avoided by the deserter having joined the enemy's service and been taken prisoner in battle. Combatants become prisoners of war, and, when they cease to resist, are to be treated with humanity, and to have medical aid and care; but such force may be used as is necessary to secure them from escaping. Its measure is the necessity, under the circumstances of each case. There is no positive obligation to exchange prisoners; but the nation whose refusal prevents the exchange ought to provide for the support of its own soldiers who are prisoners. It has been held that the recaptured prisoner who has violated parole may be punished by death. (Martens, tom. ii. § 275.) This is laid down in the Instructions to the Armies of the United States of April 24, 1863, § 124. Still, the modern practice usually is to abstain from the infliction of death, except in

of prisoners

§ 344. According to the law of war, as still practised by Exchange savage nations, prisoners taken in war are put to death. of war. Among the more polished nations of antiquity, this practice gradu*ally gave way to that of making slaves of them. For this, again,

an aggravated case, and to substitute strict confinement, with severities and privations not cruel in their nature or degree. For a history of the changes in the mode of treatment of prisoners from the earliest to modern days, see Woolsey, § 128.

(IV.) Obstruction of Harbors. Parties defending a city often obstruct the approaches to it by driving piles or sinking loaded vessels in the channels. The attacking party in the possession of the approaches will often do the same, to prevent ingress and egress of hostile vessels. At the close of the war, these obstructions yield to engineering. During the war of the Revolution, the British closed, in this manner, the harbor of Savannah. There have been many such cases in European warfare; and, during the late civil war in the United States, the rebel authorities placed obstructions in many harbors, which it has since been found very difficult to remove. But the right to use these means of warfare cannot be questioned. The entire destruction of a harbor long used by the commercial world, not as a means of belligerent coercion, but as mere vindictive punishment, would doubtless furnish a proper occasion for remonstrance by neutral powers. While Charleston was besieged and blockaded, in 1861-2, the national fleet sank hulls loaded with stone, in some of the numerous approaches to that city, leaving, however, two ship-channels open. These were purely military operations in aid of the blockade, and the port itself was claimed as the lawful territory of the attacking party. Under these circumstances, an extraordinary correspondence on the subject was opened by Lord Russell. In a letter to Lord Lyons, on the 20th December, 1861, he desired him to remonstrate with Mr. Seward against this act as (6 a cruel plan, seeming to imply despair of the restoration of the Union, . . . a plan which could only be adopted as a measure of revenge and of irremediable injury against an enemy." He was further instructed to say to Mr. Seward, "that, even as a scheme of embittered and sanguinary war, such a measure would not be justifiable. It would be a plot against the commerce of all maritime nations, and against the free intercourse of the Southern States of America with the civilized world." (Earl Russell to Lord Lyons, Dec. 20, 1861. Same, to the Liverpool shipowners, Jan. 15, 1862.) Whether or not Lord Lyons, in his conversation with Mr. Seward, repeated any of this ill-judged and intemperate language, no notice of it was taken by Mr. Seward, as far as appears by Lord Lyons's report to Earl Russell of Jan. 14, 1862. In that report, he simply represents Mr. Seward as referring to the limited and temporary character of the obstructions, and as remarking that "he was not prepared to say, that, as an operation of war, it was unjustifiable to destroy permanently the harbors of the enemy; but nothing of the kind had been done on the present occasion." Mr. Seward seems also to have reminded Lord Lyons of the course of Great Britain at Savannah, and of the acts of the rebels in several of their ports; and that, since the sinking of the vessels, British steamers, loaded with munitions of war for the rebels, had succeeded in getting in. In a letter to Mr. Adams of Feb. 17, 1862, Mr. Seward writes, "I am not prepared to recognize the right of other nations to object to the measure of placing artificial obstructions in the channels of rivers leading to ports which have been seized by the insurgents in their attempt to overthrow this government. I am, nevertheless, desirous that the exaggerations on that subject which have been indulged abroad may be corrected." As might be supposed, the subject was not renewed by Great Britain.]-D.