Part IV. stopping the interest upon a loan due to British subjects, and secured by hypothecation upon the revenues of Silesia, until he actually obtained from the British government an indemnity for the Prussian vessels unjustly captured and condemned. The proceedings of the British tribunals, though they were asserted by the British government to be the only legitimate mode of determining the validity of captures made in war, were not considered as excluding the demand of Prussia for redress upon the government itself (g). $395. Mixed com mission under So, also, under the treaty of 1794, between the United treaty of 1794. States and Great Britain, a mixed commission was appointed to determine the claim of American citizens, arising from the capture of their property by British cruisers, during the existing war with France, according to justice, equity, and the law of nations. In the course of the proceedings of this board, objections were made, on the part of the British government, against the commissioners proceeding to hear and determine any case where the sentence of condemnation had been affirmed by the Lords of Appeal in Prize Causes, upon the ground that full and entire credit was to be given to their final sentence; inasmuch as, according to the general law of nations, it was to be presumed that justice had been administered by this, the competent and supreme tribunal in matters of prize. But this objection was overruled by the board, upon the grounds and principles already stated, and a full and satisfactory indemnity was awarded in many cases where there had been a final sentence of condemnation. $396. Conclusive decisions. Many other instances might be mentioned of arrangements between States, by which mixed commissions have been appointed to hear and determine the claims of the subjects of neutral powers, arising out of captures in war, not for the purpose of revising the sentences of the competent courts of prize, as between the captors and (g) Wheaton's Hist. Law of Nations, pp. 206—217, and Hall, International Law (5th ed.), p. 248, where the Prussian exposition des motifs is characterised as a "repertory of bad law." captured, but for the purpose of providing an adequate Chap. II. indemnity between State and State, in cases where satisfactory compensation had not been received in the ordinary course of justice. Although the theory of public law treats prize tribunals, established by and sitting in the belligerent country, exactly as if they were established by and sitting in the neutral country, and as if they always adjudicated conformably to the international law common to both; yet it is well known that, in practice, such tribunals do take for their guide the prize ordinances and instructions issued by the belligerent sovereign, without stopping to inquire whether they are consistent with the paramount rule. If, therefore, the final sentences of these tribunals were to be considered as absolutely conclusive, so as to preclude all inquiry into their merits, the obvious consequence would be to invest the belligerent State with legislative power over the rights of neutrals, and to prevent them from showing that the ordinances. and instructions, under which the sentences have been pronounced, are repugnant to that law by which foreigners alone are bound. indemnities § 397. These principles have received confirmation in the Danish negotiation between the American and Danish govern- under treaty ments respecting the captures of American vessels and of 1830. cargoes made by the cruisers of Denmark during the last war between that power and Great Britain. In the course of this negotiation, it was objected by the Danish ministers that the validity of these captures had been finally determined in the competent prize court of the belligerent country, and could not be again drawn in question. On the part of the American government it was admitted that the jurisdiction of the tribunals of the capturing nation was conclusive and complete upon the question of prize or no prize, so as to transfer the property in the things condemned from the original owner to the captors, or those claiming under them; that the final sentence of those tribunals is conclusive as to the change of property operated by it, and cannot be again incidentally drawn in question in any other judicial forum; and that it has Part IV. the effect of closing for ever all private controversy between the captors and the captured. The demand which the United States made upon the Danish government was not for a judicial revision and reversal of the sentences pronounced by its tribunals, but for the indemnity to which the American citizens were entitled in consequence of the denial of justice by the tribunals in the last resort, and of the responsibility thus incurred by the Danish government for the acts of its cruisers and tribunals. The Danish government was, of course, free to adopt any measures it might think proper, to satisfy itself of the injustice of those sentences, one of the most natural of which would be a re-examination and discussion of the cases complained of, conducted by an impartial tribunal under the sanction of the two governments, not for the purpose of disturbing the question of title to the specific property which had been irrevocably condemned, or of reviving the controversy between the individual captors and claimants which had been for ever terminated, but for the purpose of determining between government and government whether injustice had been done by the tribunals of one power against the citizens of the other, and of determining what indemnity ought to be granted to the latter. § 397a. Municipal laws administered in The accuracy of this distinction was acquiesced in by the Danish ministers, and a treaty concluded, by which a satisfactory indemnity was provided for the American claimants (h). It is a question of great nicety how far a prize court is bound to enforce a municipal law against foreigners when that municipal law is prize courts. contrary to the law of nations. In a case before Lord Stowell, it was argued that the Orders in Council of 1807 were a violation of international law, and that he therefore was bound to disregard them. His lordship was of opinion that as the Orders in Council were retaliatory, they did not contravene the law of nations, but he added, "I have no hesitation in saying that they would cease to be just if they ceased to be retaliatory; and they would cease to be retaliatory from the moment the enemy retracts, in a sincere manner, those measures of his which (h) Martens, Nouveau Recueil, tom. viii. p. 350. they were intended to retaliate" (i). Sir R. Phillimore is of opinion Chap. II. "that it has never been the doctrine of the British Prize Courts that, because they sit under the authority of the Crown, the Crown has authority to prescribe to them rules which violate international law" (k). § 398. property, how in war We have seen that a firm possession, or a sentence of Title to real a competent court, is sufficient to confirm the captor's transferred title to personal property or moveables taken in war. A Jus postdifferent rule is applied to real property, or immoveables. liminii. The original owner of this species of property is entitled to what is called the benefit of postliminy, and the title acquired in war must be confirmed by a treaty of peace before it can be considered as completely valid. This rule cannot be frequently applied to the case of mere private property, which by the general usage of modern nations is exempt from confiscation. It only becomes practically important in questions arising out of alienations of real property, belonging to the government, made by the opposite belligerent, while in the military occupation of the country. Such a title must be expressly confirmed by the treaty of peace, or by the general operation of the cession of territory made by the enemy in such treaty. Until such confirmation, it continues liable to be divested by the jus postliminii. The purchaser of any portion of the national domain takes it at the peril of being evicted by the original sovereign owner when he is restored to the possession of his dominions (1). towards $399. Grotius has devoted a whole chapter of his great work Good faith to prove, by the consenting testimony of all ages and enemies. nations, that good faith ought to be observed towards an (i) The Fox, Edw. Ad. 312. (k) Phillimore, vol. iii. § 436. The Recovery, 6 C. Rob. 348; The Snipe, Edw. Ad. 381; The Maria, 1 C. Rob. 350; The Ostsee, 9 Moo. P. C. 150. (1) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, § 4; cap. 9, § 13. Vattel, Droit des Gens, liv. iii. ch. 13, §§ 197200, 210, 212. Klüber, Droit des Gens Moderne de l'Europe, §§ 256-258. RIGHTS OF WAR AS BETWEEN ENEMIES. Part IV. enemy. And even Bynkershoek, who holds that every other sort of fraud may be practised towards him, prohibits perfidy, upon the ground that his character of enemy ceases by the compact with him, so far as the terms of that compact extend. "I allow of any kind of deceit," says he, "perfidy alone excepted, not because anything is unlawful against an enemy, but because when our faith has been pledged to him, so far as the promise extends, he ceases to be an enemy." Indeed, without this mitigation, the horrors of war would be indefinite in extent and interminable in duration. The usage of civilized nations has therefore introduced certain commercia belli, by which the violence of war may be allayed, so far as is consistent with its objects. and purposes, and something of a pacific intercourse may be kept up, which may lead, in time, to an adjustment of differences, and ultimately to peace (m). § 400. Truce or armistice. § 401. Power to conclude an armistice. There are various modes in which the extreme rigour of the rights of war may be relaxed at the pleasure of the respective belligerent parties. Among these is that of a suspension of hostilities, by means of a truce or armistice. This may be either general or special. If it be general in its application to all hostilities in every place, and is to endure for a very long or indefinite period, it amounts in effect to a temporary peace, except that it leaves undecided the controversy in which the war originated. Such were the truces formerly concluded between the Christian powers and the Turks. Such, too, was the armistice concluded, in 1609, between Spain and her revolted provinces in the Netherlands. A partial truce is limited to certain places, such as the suspension of hostilities, which may take place between two contending armies, or between a besieged fortress and the army by which it is invested (n). The power to conclude a universal armistice or suspension of hostilities is not necessarily implied in the (m) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 1. The Daifje, 3 C. Rob. 139. (n) Vattel, Droit des Gens, liv. iii. ch. 16, §§ 235, 236. |