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LECTURE VIII.

OF TRUCES, PASSPORTS, AND TREATIES OF PEACE.

HAVING considered the rights and duties appertaining to a state of war, I proceed to examine the law of nations relative to negotiations, conventions, and treaties, which either partially interrupt the war, or terminate in peace.

1. Of Truces. A truce or suspension of arms does not terminate the war, but it is one of the commercia belli which suspends its operations. These conventions rest upon the obligation of good faith, and as they lead to pacific negotiations, and are necessary to control hostilities, and promote the cause of humanity, they are sacredly observed by civilized nations.

A particular truce is only a partial cessation of hostilities, as between a town and an army besieging it. But a general truce applies to the operations of the war; and if it be for a long or indefinite period of time, it amounts to a temporary peace, which leaves the state of the contending parties, and the questions between them, remaining in the same situation as it found them. A partial truce may be made by a subordinate commander, and it is a power necessarily implied in the nature of his trust; but it is requisite to a general truce, or suspension of hostilities throughout the nation, or for a great length of time, that it may

be made by the sovereign of the country, or by his special *160 authority. (a) The general principle on the subject * is,

that if a commander makes a compact with the enemy, and it be of such a nature that the power to make it could be reasonably implied from the nature of the trust, it will be valid and binding though he abuse his trust. The obligation he is under not to abuse his trust regards his own state, and not the enemy. (a)

(a) Vattel, b. 3, c. 16, sec. 233-238; Grotius, b. 8, c. 21.

(a) Rutherforth, b. 2, c. 9, Vattel, b. 3, c. 16, sec. 261; Grotius, b. 3, c. 22, sec. 4.

A truce binds the contracting parties from the time it is concluded, but it does not bind the individuals of the nation so as to render them personally responsible for a breach of it, until they have had actual or constructive notice of it. Though an individual may not be held to make pecuniary compensation for a capture made, or destruction of property, after the suspension of hostilities, and before notice of it had reached him, yet the sovereign of the country is bound to cause restoration to be made of all prizes made after the date of a general truce. To prevent the danger and damage that might arise from acts committed in ignorance of the truce, it is common and proper to fix a prospective period for the cessation of hostilities, with a due reference to the distance and situation of places. (b)

A truce only temporarily stays hostilities; and each party to it may, within his own territories, do whatever he would have a right to do in time of peace. He may continue active preparations for war, by repairing fortifications, levying and disciplining troops, and collecting provisions and articles of war. He may do whatever, under all the circumstances, would be deemed compatible with good faith and the spirit of the agreement; but he is justly restrained from doing what would be directly injurious to the enemy, and could not safely be done in the midst of hostilities. Thus, in the case of a truce between the governor of a fortified town and the army besieging it, neither party is at liberty to continue works, constructed either for attack or defence, and which could not safely be done if hostilities had *continued; for this would be to make a mischievous and *161 fraudulent use of the cessation of arms. So, it would be

a fraud upon the rights of the besieging army, and an abuse of the armistice, for the garrison to avail themselves of the truce to introduce provision and succors into the town, in a way, or through passages, which the besieging army would have been competent to prevent. (a) The meaning of every such compact is, that all things should remain as they were in the places contested, and of which the possession was disputed, at the moment of the conclusion of the truce. (b)

At the expiration of the truce, hostilities may recommence without any fresh declaration of war; but if it be for an indefi

(b) Vattel, b. 3, c. 15, sec. 239, 244.
(a) Vattel, b. 3, c. 16, sec. 247, 248.

(b) Ib. sec. 250.

nite time, justice and good faith require due notice of an intention to terminate it. (c)

Grotius and Vattel, (d) as well as other writers on national law, have agitated the question, whether a truce for a given period, as, for instance, from the first of January to the first of February, will include or exclude the first day of each of these months. Grotius says, that the day from whence a truce is to be computed, is not one of the days of the truce, but that it will include the whole of the first day of February as being the day of its termination. Puffendorf, Heineccius, and Vattel, on the other hand, are of opinion, that the day of the commencement of the truce would be included; and as the time ought to be taken largely and liberally, for the sake of humanity, the last day mentioned would also be included. Every ambiguity of this kind ought always to be prevented, by positive and precise stipula

tions, as, from such a day to such a day, both inclusive. (e) *162 2. Passports.—* A passport or safe-conduct is a privilege

granted in war, and exempting the party from the effects of its operation, during the time, and to the extent prescribed in the permission. It flows from the sovereign authority; but the power of granting a passport may be delegated by the sovereign. to persons in subordinate command, and they are invested with that power either by an express commission, or by the nature of their trust. (a) The general of an army, from the very nature of his power, can grant safe-conducts; but the permission is not transferable by the person named in the passport, for it may be that the government had special reasons for granting the privilege to the very individual named, and it is presumed to be personal. If the safe-conduct be granted, not for persons, but for effects, those effects may be removed by others besides the owner, provided no person be selected as the agent, against whom there may exist a personal objection, sufficient to render him an object of suspicion or danger, within the territories of the power granting the permission.

(c) Vattel, b. 3, c. 16, sec. 260.

(d) Grotius, b. 3, c. 21, sec. 4; Vattel, b. 3, c. 16, sec. 244; Puff. 8. 7. 8; Heinecc. Jur. Nat. et. Gent. 2. 9. 208.

(e) The rule proposed by the English commissioners, in their report on the practice of the English courts, in July, 1831, is recommended by its simplicity and certainty. They propose to compute the first day exclusively, and the last day inclusively, in (a) Vattel, b. 3, c. 17.

all cases.

See iv. 95.

He who promises security, by a passport, is morally bound to afford it against any of his subjects or forces, and to make good any damage the party might sustain by a violation of the passport. The privilege being so far a dispensation from the legal effects of war, it is always to be taken strictly, and must be confined to the purpose, and place, and time, for which it was granted. A safe-conduct generally includes the necessary baggage and servants of the person to whom it is granted; and, to save doubt and difficulty, it is usual to enumerate, with precision, every particular branch and extent of the indulgence. If a safe-conduct be given for a stated term of time, the person in whose favor it was granted must leave the enemy's country before the time expires, unless detained by sickness, or some unavoidable

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circumstance, and then he remains under the same pro- *163 tection. The case is different with an enemy who comes into the country of his adversary during a truce. He, at his own peril, takes advantage of a general liberty allowed by the suspension of hostilities, and, at the expiration of the truce, the war may freely take its course, without being impeded by any claims of such a party for protection. (a)

It is stated that a safe-conduct may even be revoked by him who granted it, for some good reason; for it is a general principle in the law of nations, that every privilege may be revoked, when it becomes detrimental to the state. If it be a gratuitous privilege, it may be revoked purely and simply; but if it be a purchased privilege, the party interested in it is entitled to indemnity against all injurious consequences, and every party affected by the revocation is to be allowed time and liberty to depart in safety. (b)

The effect of a license given by the enemy to the subjects of the adverse party, to carry on a specified trade, has already been considered, (c) in respect to the light in which it is viewed by the government of the citizens accepting it. A very different effect is given to these licenses by the government which grants them, and they are regarded and respected as lawful relaxations or suspensions of the rules of war. It is the assumption of a state of peace to the extent of the license, and the act rests in

(a) Vattel, b. 3, c. 17, sec. 273, 274.

(b) Ib. sec. 276.

(c) Supra, [81.] 85.

the discretion of the sovereign authority of the state, which alone is competent to decide how far considerations of commercial and political expediency may, in particular cases, control the ordinary consequences of war. In the country which grants them, licenses to carry on a pacific commerce are stricti juris, as being exceptions to a general rule; though they are not to be con164 strued with pedantic accuracy, nor will every * small

deviation be held to vitiate the fair effect of them. (a) An excess in the quantity of goods permitted to be imported might not be considered as noxious to any extent; but a variation in the quality or substance of the goods might be more significant. Whenever any part of the trade assumed under the license is denuded of any authority under it, such part is subject to condemnation.

Another material circumstance in all licenses, is the limitation of time in which they are to be carried into effect, for what is proper at one time may be very unfit and mischievous at another time. Where a license was limited to be in force until the 29th of September, and the ship did not sail from the foreign port until the 4th of October, yet, as the goods were laden on board by the 12th of September, and there was an entire bona fides on the part of the person holding the license, this was held to be legal. (6) But where a license was to bring away a cargo from Bordeaux, and the party thought proper to change the license, and accommodate it to another port in France, it was held by the English admiralty, in the case of the Twee Gebroeders, (e) that the license was vitiated, and the vessel and cargo were condemned. It has also been held, that the license must be limited to the use of the precise persons for whose benefit it was obtained. The great principle in these cases is, that subjects are not to trade with the enemy without the special permission of

(a) The Cosmopolite, 4 C. Rob. 8; Grotius, b. 3, c. 21, sec. 14, lays down the general rule, that a safe-conduct, of which these licenses are a species, are [is] to be liberally construed; laxa magis quam stricta interpretatio admittenda est. And licenses were eventually construed with great liberality in the British courts of admiralty. Judge Croke, in the case of the Abigail, Stewart, Vice-Adm. 360; Duer on Insurance, i. 595-619. The English admiralty and common law decisions on this subject of licenses are collected and examined by Mr. Duer, with his usual diligence and sagacity.

(b) Schroeder v. Vaux, 15 East, 52; 3 Camp. 83. (c) Edw. Adm. 95.

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