Sivut kuvina

to armed insurrection. If any such right as this can ever exist, it can only spring from the extremest necessity, and from a condition of things which it would be difficult and painful to imagine. With my understanding of what an armed servile insurrection must be, I may illustrate my view of the law thus: an army which invested a city that was supplied with water by a stream flowing into it, would have a military right to cut off the stream and so reduce the city to submission. But it would have no right, military or other, to poison the waters. There seems to me, as matter of law, a good test for this. The commander of an invading army might certainly, as a military necessity, liberate the slaves and make any use of them which he could make of his own soldiers, but nothing more.

“Questions of a moral nature, and others of expediency, gather around this topic of the treatment of slaves by an invading force. I have avoided all reference to them, not because I am insensible to their existence or force. But it is my business here to speak to you, as well as I can, of the law, and I believe I can speak of it more accurately, if I speak only of the law.”


The first mode which we shall consider, and usually the first in order of time, upon the breaking out of a war, in which a belligerent proceeds to

assail the commerce of the enemy, is by what is Embargo de- called an embargo—the purpose and effect of which

is, to detain vessels in the ports where they may be



There are two kinds of embargoes; and although each is an act of hostility designed to weaken the

commerce of the enemy, they have been distin. Warlike and

civil. guished by designating the one as warlike, as oper: ating directly upon the vessels of the enemy; and the other as civil, as operating upon those of the citizens or subjects of the nation proclaiming the embargo.

Vattel says:1 “The sovereign can neither detain the persons nor the property of those subjects of the enemy who are found within his dominions at the time of the declaration; they came into his country under the public faith. By permitting them to enter and reside in his territories, he tacitly promised them full liberty and security for their return; he is, therefore, bound to allow them a reasonable time for withdrawing with their effects, und if they stay beyond the term prescribed, he has a right to treat them as enemies—as unarmed enemies, however. But if they are detained by an insurmountable impediment, as by sickness, he must necessarily and for the same reason, grant them a sufficient extension of the term. At present, so far from being wanting in this duty, sov(reigns carry their attentions to humanity still further, so that foreigners who are subjects of the state against which war is declared, are very frequently allowed full time for the settlement of their affairs. This is observed in a particular man. ner with regard to merchants, and the case is, moreover, carefully provided for in commercial treaties.”

It would, on first consideration, appear that the Modern pracrule of justice and public faith thus laid down by bargo. Vattel, was violated by the modern practice of the

tico as to em

'Lib. III., c. i., $ 63.

imposition of embargoes upon the commencement of hostilities; but it must be remembered that declarations of war, under the present law of nations, are not merely the formal notification of hostilities. There are always preceding acts of a hostile character, which, to some intents, are deemed to be equivalent to formal declarations; these acts may be subsequently satisfactorily explained, and by a reconciliation be annulled. When therefore, a nation receives certain injuries from another, for which she can see no prospect of redress, she is forced to regard such injuries as tantamount to a declaration of hostilities, and therefore proclaims an embargo upon the commerce of the offending state then lying within her ports, in order to indemnify herself in the only way in which, perhaps, it may be possible for her to obtain indemnification at all. In such cases, the hostile property which comes to her possession after the commission of the injurious acts, may very justly be regarded as having so come after the declaration of hostilities, although there may have been no formal notifica

tion or declaration of war. Operation and Upon this right of seizure, under such an implied effect of embargo.

declaration of hostilities, and upon the effect of such seizure, in the event of an adjustment of difficulties, before any formal declaration is made, Lord Stowell makes some instructive comments, in a case before him, in which the subject was involved.

In that case, an embargo upon Dutch property had been declared by Great Britain, prior to any formal or open declaration of war against Holland; but after the commission of certain acts of injustice by that government, as were regarded equivalent, in their hostile character, to a declaration of war against Great Britain. The formal declaration of war, which was subsequently made, was held to have a retrospective effect, as rectifying and confirming whatsoever had been done pursuant to the embargo, ordered in consequence of the implied declaration.

i The Boedas Lust, 5 Rob., 246.

“ The seizure," says the learned judge," was at first equivocal; and if the matter in dispute had terminated in a reconciliation, the seizure would have been converted into a mere civil embargo, so termed.

“That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure. It is declared to be no embargo. It is no longer an equivocal act, subject to two interpretations. There is a declaration of the animus by which it is done; that it was done hostili animo, and is to be considered as a hostile measure ab initio. The property taken is liable to be used as the property of trespassers, ab initio, and guilty of injuries which they have refused to redeem by any alteration of their measures. This is the necessary course, if no compact intervenes for the restitution of the property taken before a formal declaration of hostilities.” In another case, the same learned judge observed: “Actual hostilities are not to be reckoned

"The Herstelder, 1 Rob., 114.

merely from the date of the declaration, but such declaration has been applied with a retroactive force."

There is no doubt that embargo, as practised in modern times, is sanctioned by the uniform usage of nations.

It substantially conforms to that practised by the Syracusans in the time of Dionysus the Elder (which Mr. Mitford, in his History of Greece, con. siders a gross violation of the law of nations), who, having declared war against Carthage, at once seized the effects of Carthaginian traders in their warehouses, and Carthaginian vessels in their harbors, and then sent a herald to Carthage to nego. tiate..

This act of the Syracusans is not distinguishable from the ordinary practice of Great Britain, as declared by Lord Mansfield : “Upon the declara tion of war or hostilities, all the ships of the enemy are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made."


Civil embar. The consideration of the subject of civil embar

goes, as they are called, would be apart from the purpose of this treatise. It is sufficient here to say, that the authority of the government to enforce an embargo upon the ships and merchandise of its citizens and subjects, has been made a subject of grave discussion, both in the United States and in Great Britain. “The civil embargo," says Beawes, “is laid on ships and merchandise in the ports of this kingdom by virtue of the king's proclamation,

Lindo vs. Rodney, Doug., 613.

Lex Mercatoria, 27i.

« EdellinenJatka »