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OF THE RIGHTS OF BELLIGERENTS TO INTERFERE WITH
EACH OTHER'S COMMERCE, AND CAPTURE EACH
A REMARK attributed to the king's advocate in the early case of Potts vs. Bell, that "there is no such thing as a war for arms and a peace for commerce," has since been adopted by the elementary writers, us a happy statement of an axiom in the law of nations.
: The commerce of the enemy has, in all ages, been the com,
merce of the regarded as the legitimate prize of war.
enemy the leThe character and effects of what are considered of the several rights of war relative to hostile commerce, will form the subject of this chapter.
As a starting point, it will be instructive to consider the great leading principles, as they have been Leading prin.
ciples on this laid down by the early authoritative writers, as subject in na
tional law. forming the basis of the existing law of nations.
“A state, taking up arms,” says Grotius, “in a just cause, has a double right against her enemyfirst, a right to obtain possession of her property withheld by the enemy, to which must be added the expenses incurred in the pursuit of that object -the charges of war and the reparation of damages -for, were she obliged to bear those expenses and
losses, she would not fully recover her property nor obtain her due. Secondly, she has a right to weaken her enemy, in order to render him incapable of supporting his unjust violence, a right to deprive him of the means of resistance.
“Hence, as from this source originate all the rights which war gives us over things belonging to the enemy, we have a right to deprive him of his possessions—of every thing which may augment his strength and enable him to make war. This, every one endeavors to accomplish in the manner most suitable to him. Whenever we have an opportunity, we seize on the enemy's property, and convert it to our own use, and thus, besides diminishing the enemy's power, we augment our own, and obtain at least a partial indemnification or equivalent either for what constitutes the subject of the war, or for the expenses and losses incurred in its prosecution—in a word, we do ourselves justice.”
Professor Martens, of Gottingen, in his “Summary of the Law of Nations,"1 makes the following condensation of the elementary doctrines: “The conqueror has a right to seize on the property of the enemy, whether movable or immovable. These seizures may be made; 1st, in order to obtain what he demands as his due or equivalent; 2d, to defray the expenses of the war; 3d, to force the enemy to an equitable peace; 4th, to deter him, or by reducing his strength, to hinder him, from repeating, in future, the injuries which have been the cause of the war. And, with this last object in view, a power at war has a right to de
• Marten's Lib. VIII., c. iii., § 9.
stroy the possessions and property of the enemy, for the express purpose of doing him mischief. However, the 'modern laws of war do not permit. the destruction of any thing, except, ist, such things as the enemy cannot be deprived of by any other means than those of destruction, and which it is at the same time necessary to deprive him of; 2d, such things as, after being taken, cannot be kept, and which might, if not destroyed, strengthen the enemy; 3d, such things as cannot be preserved without injury to the military operations. To all these we may add, 4thly, whatever is destroyed by way of retaliation.”
The subject of the belligerent right of the destruction or confiscation of the property of the enemy, acquires a peculiar interest in its connection with the insurrection against the government of the United States, raised by certain malcontents in the southern portion of the country, and in its application to the negroes held as slave property by a small portion of the people in the insurgent territory.
The solution of this question assumes a momentous importance, when it is considered in connection with the obvious and imperative duty of the gov. ernment, in the suppression of a rebellion, which, in any event must involve a pecuniary loss of many millions to the people, and may entail a loss of greater magnitude than the highest estimated value of the entire negro population held as slave property—to remove all possible ground or occasion for future domestic commotion, from the same real or pretended cause. It would be out of place, in a work of this char: acter, to enter into a discussion of the subject, either in its moral aspects, or as one of political expediency.
In its legal bearings, it has been recently stated with much brevity, but with great ability and precision, by the learned and distinguished jurist who so worthily succeeds the late Mr. Justice Story in the Dane professorship of law, in the university at Harvard. • We are permitted to extract this statement from a lecture lately delivered by Professor Parsons in the course of his professorial duties:
“Many of you have asked of me what would be the law or the legal rights which an army, advaneing by order of the President into a state in organized rebellion, would carry with it, as to the slaves. I will endeavor to answer this question.
“In the first place, that army must have the rights, and all the rights of war. Because, if a state puts itself into that position with reference to the United States, the government of the United States must necessarily accept that position while (arrying on the conflict, although the general gov. ernment prosecute the war with no desire of subjugation, but only for the purpose of bringing that state back to its original position.
“There are four ways in which that army might deal with slaves. One is, to seize and use them in its military labors. That they might do this, seems to me as certain as that they might seize horses or oxen to draw their wagons, or shovels to dig their trenches. How far compensation should be made must depend upon circumstances. It is a common opinion that civilization has so far mitigated war, that it is no longer one of the laws of war that an invading army may seize, use, or destroy private property. This is a mistake, according to all the authorities on the law of nations. It is undoubted. ly true, however, that the modern usages and proprieties of war—and there are such things—would justify the exercise of this right only on the ground of military necessity.
“ The second way, is to receive and harbor all run. away slaves. And the third is but a step further in the same direction, although it may seem to be a wide step: it is to liberate them, not, as it were, passively, but by proclamation, or other active measures. As a matter of law, I have not the least doubt of the right of an invading army to do this. It would, regarded as a mere question of law, stand on the footing of a destruction of private property in an enemy's country; and like that, it would be. an unquestionable right; but if the usages of war were to govern it, it would be a right to be exercised only as a military necessity, and for the purpose of weakening the enemy, and lessening his means of attack or resistance. And the existence of this necessity must be determined by the commanding officer, or by the supreme authority at home, in view of all the circumstances of the case. Should there be a war between two slave states. say Georgia and South Carolina, and Georgia should invade South Carolina, I have no doubt that the invading forces might and would claim and possess the right to exercise these means of weakening their enemy, if they thought proper.
“ The fourth way of dealing with slaves would be to put weapons into their hands and incite them
Vide Appendix, No. ix.