Page:The American Cyclopædia (1879) Volume X.djvu/233

 LAW OF NATIONS 227 and friendly state, were the subject of very earnest discussion in the controversy between the United States and Great Britain preceding the treaty of Washington of 1871, and also at the Geneva conference held under its provi- sions. In that treaty the British government agreed to the following rules for the future, while not assenting to the claim of the govern- ment of the United States that they were in force before. A neutral government is bound : 1, to use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace ; and also to use like diligence to prevent the de- parture from its jurisdiction of any vessel in- tended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use ; 2, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men ; 3, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. It is prob- ably not too much to say that these rules are regarded by the best authorities of the pres- ent day as a correct statement of the duties of a neutral in the particulars covered by them. An open contest between sovereign states is called a public war. It may be general, ex- tending to all persons and places in the two states, and is then called a perfect war ; or it may be imperfect, as it is limited in these re- spects. Once it was considered necessary to declare war formally before proceeding to hos- tilities ; now it is customary to declare simply that war exists. Forthwith, all enemy prop- erty is, by the law of war, subject to confis- cation ; thus, debts due from one state to the other may be sequestered, or property lying within the territory of either be seized as prize of war. But in the exercise of international comity these rights are not usually enforced. The obligation of debts is, as it were, suspended during war, but the right of recovery revives with the peace ; and enemy's ships in port may be allowed to depart, and those on their voyage thither to enter, discharge their cargoes, and sail without molestation. All commerce be- tween the subjects of belligerent states is in- terdicted by the laws of war; yet for good reasons either power may, by express license, permit a partial intercourse. Very large in- dulgence was shown in this respect, and for the interests of commerce, by England in the last war with Russia. Provided only that British ships did not enter ports in possession of the enemy, the commerce with the enemy, though indirect, might still be carried on. The interdiction of intercourse between belligerents extends not only to commerce, but to every species of contract, such as insurance of ene- mies' property, the drawing of bills on subjects of the enemy, or the remission of funds to them by bills or money. So too partnerships exist- ing between the subjects of hostile states are absolutely dissolved by a declaration of war. In the language of Lord Bacon, war is the highest trial of right. It has also been defined as an exercise of the international right of ac- tion. Its end and object is to compel jus- tice from an enemy, and it must be prosecuted with steady regard to that end. All measures of force which must be employed to attain it are justifiable, but no others are permissible. Therefore wanton waste of the enemy's coun- try, or wanton destruction of the property or lives of his subjects, are in the modern practice of nations unjustifiable and illegal. Generally, all those who are engaged in the merely civil affairs of life are exempted from the direct effects of war, and only those who are ex- pressly or impliedly authorized by the com- mands of the state to represent its sovereign- ty are ordinarily subjected to hostile attack. Property at sea, however, makes an exception to the usual indulgence shown to the goods of an enemy; for ships and their cargoes upon the ocean are liable without exception during war to seizure and confiscation, and even if captured by uncommissioned cruisers are con- demned as good prize of war. The abolition of privateering was proposed to the United States by the governments represented in the congress of Paris in 1856 ; but the proposition was then declined, and when Mr. Seward in 1861 offered to assent, the offer was declined by Great Britain in view of the then existing circumstances. The validity of all claims of prize and capture is determined by the prize courts of the captor's country. These may sit either within their proper territory or in that of an ally, and exercise jurisdiction over cap- tured property lying either in their own ports or in those of an ally or of a neutral. They possess a jurisdiction, in respect to captures made by subjects of their sovereign, exclusive of the tribunals of all other nations, excepting only in cases when the capture was made upon the territory of a neutral, or by vessels fitted out within a neutral's limits. These cases in- volve an invasion of the neutral's sovereignty, and must be adjudicated in his court. The de- cisions of prize courts are final and conclusive upon rights of property involved ; and if their judgments work injustice to the subjects of other powers, their claims to reimbursement must be adjusted between the sovereigns of their respective states. The demand for the surrender of Mason and Slidell, the confederate emissaries seized on board the Trent in 1861, was assented to by the United States govern- ment, because Capt. Wilkes had neglected to bring the Trent into port in order that the proper adjudication might be had to determine the lawfulness of the seizure. Either for ordering the general conduct of war, or for