the amount *to the proceeds of a subsequent sale, but will hold [*635] the parties to the appraised or admitted value. (f) In case of a delivery on bail, the expenses of the delivery are to be borne by the delivering party, unless it is otherwise directed by the Court.(g) But generally the Court directs the expenses of the application to be borne by the party who applies for the delivery on bail; and all expenses after the delivery are exclusively borne by the party receiving the property.(h) Bail bonds or securities to answer adjudication, are not discharged by lapse of time; but may, at any distance of time, be enforced by the Court; but after a great length of time the Court will, in its discretion, refuse a monition or attachment to enforce the bond, unless some reasonable ground for the delay is established.(i) Nor are these bonds considered as mere personal securities given to the individual captors, although taken in their names; they are considered as securities given to the Court, to abide the adjudication of all events at the time impending before it. The Court is not in the habit of considering bonds precisely in the same limited way as they are viewed by the Courts of Common Law. In those Courts they are very properly considered as mere personal securities for the benefit of those parties to whom they are given. In Prize Courts they are subject to more enlarged considerations; they are there regarded as pledges or substitutes for the thing itself, in all points fairly in adjudication before the Court. If, therefore, a bond be given to the actual captors to answer the adjudication of the property, which should, from the locality of the capture, or from other circumstances, be condemned to the government, the bail, would, in such case, be answerable, in the Admiralty, to the government.(k) But if the property at the time of capture *was neutral, and delivered on bail pending the proceedings, and hostilities [*636] subsequently intervene with the neutral country, and, in consequence thereof, the property is condemned to the government, it seems that the Court is not in the habit of enforcing the bail bond in such cases; because the event was not originally in the contemplation of the parties, at the time they entered into the security.(1) Whether this doctrine would be sustained in the North American United States, is, according to Mr. Justice Story, a question upon which there is no decision to guide the judgment; but he is of opinion that certainly much argument may be used against the asserted exemption; for, the bail bond being a substitute for the property itself, there does not seem any very conclusive reason why it should not be subject to all the events which would have affected the property, if still in the custody of the Court.(m) (f) The Betsey, 5 Rob., p. 295, and p. 296, note (a). (9) The Rendsberg, 6 Ib., p. 142. (i) The Vreede, 1 Dodson, p. 1. (1) The Nied Elwin, 1 Dodson, p. 50. (h) 5 Ib., p. 296, note (a). (k) The Nied Elwin, Ib., p. 50. (m) As to the jurisdiction of the Prize Court over, 1. The Distribution of Prize proceeds, the reader is referred to the following decisions in the English and North American United States Courts: ENGLISH.The Herkimer, Stewart's Rep. p. 128. Home v. Camden, 1 H. Blackstone's Rep. pp. 476, 524. S. C., 2 Ib., p. 633. 4 Durnford & East's Rep., p. 382. Duckworth v. Tucker, 2 Taunton's Rep., p. 7. The Diomede, 1 Acton's Adm. Rep., pp. 63, 239. Gardiner v. Lyne, 13 East's Rep., p. 574. Drury v. Gardiner, 2 PART THE TWELFTH. [*638] *CHAPTER I. OF THE MANNER OF ENDING WAR, AND OF RE-ESTABLISHING PEACE. DIX. "In totâ Belli administratione non potest securus et Deo fidens animus retineri, nisi semper in Pacem prospectet ;" and again, " Bellum pacis causâ suscipitur," are the maxims of Christianity, justice, and reason, expressed by their noble expounder, the ever illustrious Grotius. (a) When, by use of the legal means of War, the invaded right has been obtained or secured, or the inflicted injury redressed, or the threatened danger averted,-post juris consecutionem(b)—the abnormal state of War must cease, the normal state of Peace must be re-established.(c) We are, indeed, admonished by Grotius, that if a Peace sufficiently safe can be had, it is not ill obtained even by the condonation of injuries, Maule & Selwyn, p. 150. Duncan v. Mitchell, 4 Ib., p. 105. Pill v. Taylor, 11 As to Prize Agents, see the following decisions : ENGLISH.-Home v. Camden, 1 H. Blackstone's Rep., pp. 374, 524. S. C., 2 Ib., pp. 5, 33. Willis v. Commissioners, &c., 5 East's Rep., p. 22. The Noysomhed, 7 Vesey's Rep., p. 593. Smart v. Wolff, 3 Durnford & East's Rep., p. 323. The Pomona, 1 Dodson's Adm. Rep., p. 25. The Herkimer, Stewart's Rep., p. 128. The Louis, 5 Robinson, p. 146. The Polly, Ib., p. 147, note. The Printz Henrick von Preussen, 6 Ib., p. 95. The Exeter, 1 lb., p. 173. The Princessa, 2 Ib., p. 31. AMERICAN. The St. Lawrence, 2 Gallison's (Amer.) Rep., p. 19. The Brutus, Ib., p. 526. Bingham v. Cabot, 3 Dallas's (Amer.) Rep., p. 19. Kean v. Brig Gloucester, 2 Ib., p. 36. The Herkimer, 2 Hall's (Amer.) Law Journ., p. 133. Hill v. Ross, 3 Dallas's (Amer.) Rep., p. 331. Penhallow v. Doane, Ib., p. 54. (a) L. iii. c. xxv. s. 2. L. i. c. i. s. 1. (b) Vide ante, Vol. I. pp. 11, 12. (e) Albericus Gentilis, 1. iii. c. i. Grotius, 1. iii. c. vi. viii. ix. xv. xvi. xx. Zouch, pars ii. sect. ix. p. 25, ad finem. Wolff, cap. viii., De Pace et Pactione Pacis. Vattel, 1. iv., Du Retablissement de la Paix, &c., ch. i. ii. iii. iv. De Martens, D. des G., 1. viii. c. viii. Ompteda, i. 49, 62, 63, ii. 604, continuat, by Carl Albert Von Kamptz, ss. 321, 331, (356, 360.) Klüber, 2 Abschnitt, c. iii., Recht des Friedens, ss. 317, 329. Hefters, ii. B. 4, Abschnitt: "Die Beendigung des Krieges die Usurpation, und das Postliminium." This part of the work, as indeed the work generally, deserves careful study. [*639] damages, and expenses, especially *among Christians, (d)—for to them their Lord has bequeathed Peace as his peculiar legacy, to them the chosen interpreter of their Lord's Testament has made peace the theme of his most earnest exhortations. (e) If this admirable doctrine be too excellent for the present condition of the Society of States, it may at least be propounded as an unquestionable proposition of International Jurisprudence that there is a legal as well as moral necessity that, with the ceasing of the causes which justified the inception of the War, the War itself should cease. Moreover, it is to be remembered that in this cessation every state is interested; because by the conflict between the Belligerents every state, neutral as well as belligerent, is to a certain extent injured; for War, as has been shown, (f) necessarily disturbs the relations and affects the condition, in a greater or less degree, of all states. In the event, therefore, of a War unlawfully continued, though lawfully begun, it would be morally and legally competent to states who have taken no part in the conduct of the contest, to combine for the purpose of compelling the termination of War and the restoration of Peace.(g) The state which continues the evils and horrors of War unrighteously, is but little, if at all, less than an offender against the Society of Societies, against the great Commonwealth of States, (h) than the original wrongdoer. *The duty which Cicero inculcates on the private citizen with respect to Civil War, is equally the duty of a state in a War of [*640] Nations Initia belli invitum suscipere extrema libenter non persequi."() DX. There appear to be three ways by which War may be concluded and Peace restored.(k) 1. By a de facto cessation of hostilities on the part of both Belligerents, and a renewal, de facto, of the relations of Peace. 2. By the unconditional submission of one Belligerent to another. 3. By the conclusion of a formal Treaty of Peace between the Belligerents. DXI. A formal declaration on the part of the Belligerents that War (d) Vide ante, Vol. I. pp. 22-7. (e) See this noble passage, 1. iii. c. xxv. s. 3: "Pax ergo tuta satis haberi si potest, et malefactorum et damnorum et sumtuum condonatione non malè constat: præcipuè inter Christianos quibus pacem suum Dominus legavit. Cujus optimus interpres nos vult quantum fieri potest quantum in nobis situm est cum omnibus Pacem quærere." (ƒ) P. 47. As to what are causæ belli justificæ. "Cæde nocentûm Se nimis ulciscens, exstitit ipse nocens." Ovid, De Pont., i. Eleg. viii. 19, 20. (i) "Ostendistique (Cicero writes to Marcellus) sapientem et bonum civem initia belli civilis invitum suscipere, extrema libenter non persequi."-Epist. ad Fam., 1. iv. 7. Grotius (1. iii. c. xxv. s. 3,) misquotes this passage and ascribes it to Sallust. (k) Heffters, p. 311, s. 176. St. Paul. Rom. xii. 18. has ceased, however usual and desirable, cannot be said to be absolutely necessary for the restoration of Peace. War may silently cease and Peace be silently renewed. So ended the War between Sweden and Poland in the year 1716, namely, by a reciprocal intermission of hostilities; it was not till after the lapse of ten years that Peace was formally and de jure recognized as subsisting between the two kingdoms.() In such a state of things the presumption of law would be, that both parties had agreed that the status quo ante bellum should be revived. Yet in the absence of any formal declaration it would not be concluded that the claims which had given occasion to the War, or which had grown out of the War, were abandoned, but they must be considered as in abeyance. In fact, it is as difficult to predicate the consequen[*641] ces, *legal and practical, of such a state of things, as it would be to predicate the consequences of a treaty of Peace which contained no clause of amnesty.(m) Since, Grotius observes, it is not usual for Belligerents to make Peace on the basis of a confession from one of them that he is in the wrong, "ea sumenda est in pactis interpretatio quæ partes quoad belli justitiam quam maximè æquet." This end is to be effected by one of two means, viz. :-(1.) Either by an agreement that the possession which has been disturbed by the War, shall be restored, which is expressed by the wellknown international formula of the status quo ante bellum; or (2.) by an agreement that matters shall remain as they were at the period when the War is ended; and this arrangement is expressed by the formula, often little understood, though familiar enough in its application of uti possidetis, or, as Grotius says, "ut res maneant quo sunt loco; quod Græci dicunt Exores à Exovo."(n) To these two predicaments the learned Samuel Cocceius adds two more, namely, (3.) where a treaty is made, in which "nihil dictum est de damnis, injuriis et debitis," or (4.) in which "paci clausula generalis amnestiæ adjicitur.(0) [*642] *DXII. Secondly. As to the unconditional submission (deditio) of one Belligerent to another. Instances of such prostration are abundant in the pages of classical history,(p) and are not altogether wanting even in very modern times. (7) Ibid. De Steck., Essais sur divers Sujets de Polit. p. 2. (n) Grot., 1. iii. c. xx. ss. 11, & 2. Vide post, Lord Grenville's Remarks on the Treaty of Amiens. (0) Grotius, Illustratus, v. p. 502, (ed. Halæ, 1748.) The Times, Debate in the House of Commons, Friday, March, 14, 1856.—"The Crimean Tartars.-Mr. Holland asked the First Lord of the Treasury whether the attention of her Majesty's Government had been drawn to the position of the Crimean Tartars in the event of peace being established, and the allied forces, towards whom they had shown themselves favourably disposed, being recalled?— Lord Palmerston: When a year is terminated, in the course of which the armies of one country have occupied the territory of another, it is the invariable practice that there shall be an agreement between the parties to insure a complete amnesty to all subjects of either Power who may have been at all committed in the progress of hostilities; and should peace be now concluded, an arrangement of that kind will, of course, be concluded between the Belligerents." (P) The classical reader will find the formal language of a deditio in Livy: "Itaque populum Campanum urbemque Capuam, agros, delubra Deûm, divina But the most unconditional submission would be holden according to the principle of International Law to imply a retention of the common rights of humanity, (q) and, between Christian states, of Christian humanity (r) any infringement of these rights would be beyond the moral competence of the conqueror. The subject of the incorporation and of the extinction of a state has been considered in an early part of the present work. (s) DXIII. Thirdly. We have to consider the termination of War by the conclusion of a formal Treaty of Peace between the Belligerents. The examination of this part of the subject must embrace the following considerations : I. By whom the overtures of Peace may be made. II. Where, or within the limits of whose territory, the negotiations may be opened and carried on. III. How, or according to what forms. *IV. When the Treaty of Peace takes effect, or the date from which the operation of it becomes binding upon the public relations of states, and the private relations of individuals. [*643] DXIV. I. First, then, to consider by whom the overtures of peace may be made. These overtures may be made by one of the Belligerent States, by a Neutral State acting as the common friend of both litigants, or, by a state which is rather an auxiliary than an ally, or which-to speak as correctly as the nature of the distinction permits-has, as it were, been the passive ally of one Belligerent, without positively declaring war against the other Belligerent, without withdrawing its Ambassador from his Court, and indeed while continuing with this Belligerent, formally at least, the relations of amity. This third kind of status is sometimes designated in the books as the status of an auxiliary, (t) as distinguished from an ally. A Neutral power may also act as a mediator, or may merely interpose its good offices. Between the two positions there is a marked difference, inasmuch as the former implies the consent of both Belligerents; the latter may be without the consent of either, or with the consent of only The good offices of a Neutral State may be accepted and its mediation refused. In the War with Sweden in 1742, Russia accepted the good offices and refused the mediation of France. one. The mediator must not be counfounded with the arbitrator, whose character and functions have been discussed in an earlier part of this volume.(u) DXV. II. Where, or within the limits of whose territory, may the negotiations be carried on? humanaque omnia in vestram, Patres Conscripti, populique Romani ditionem dedimus; quiquid deinde patiemur dediticii vestri passuri.”—L. vii. c. xxxi. He will find the rite and manner in Cæsar, De Bello Civili, 1. iii. ss. 97, 98. (g) Heffters, p. 312, s. 178. (r) Vide ante, Vol. I. (8) Vide ante, Vol. I. pp. 147, 157, 158. P. 142, art. vi. of the Constitution of the N. A. United States, on this subject. (1) De Martens, Essai sur les Armateurs, s. 50. (u) Vide ante, p. 2. |