Imágenes de páginas
PDF
EPUB

of whom, however, borrows it from Grotius. They support it by adducing instances of similar rapine, as if example, in such cases, were sufficient; while it is only solving a problem by another problem, litem quod lite resolvit. Nor is what they say about embargoes of ships at all analogous to the present case; for, ships that are found in the dominions of another sovereign, are in a manner subject to him, and those embargoes are laid by virtue of a custom universally received among sovereigns. But, it never has been admitted as a custom, that the dominions, towns or forts of a friendly nation, may otherwise than tortiously be invaded or retained.

II. Conquered countries, like lands purchased, pass CUM ONERE.

The king of Spain had hypothecated a certain territory for a sum of money which he had borrowed of one who was in friendship with him and the states-general. The states conquered that territory in the course of a war. The counsel. lors of Holland were of opinion, that the pledge was extinct. * But they were mistaken, for the states had only conquered what belonged to the king of Spain, that is to say, the right of empire and dominion, as he had possessed it. And as he held it subject to that hypothecation, it could not pass over to the states in

any other manner. If the states, instead of conquering, had purchased from the king a part of that territory, the creditor would still have been entitled to his whole pledge. He would have preserved his rights against the king of Spain, the vendor, who had bound himself for the debt, and against the states-general, who had purchased the land hypothecated for its payment, because property, when sold, passes with all its charges, which remain entire for the benefit of the creditor. But now the Dutch have taken the territory, and consider it as confiscated to them. And so it is, as far as it belonged to the king of Spain, but that does not include the interest which the neutral creditor had in it. If the hypothecated debt, indeed, had belonged to an enemy, it might also have been justly confiscated by the law of war.

Consil. Belg. vol 3. Consil. 2.

III. Property captured and afterwards ransomed or given up by the enemy, is not thereby liberated from the claims of the insurer or lender at maritime risk.*

It has been questioned, whether property, particularly ships and merchandize, which after being captured, are ransomed or given up by the enemy, to their former owner, are thereby exonerated from the prior claims of the insurers or of those who had lent money thereon at maritime risk? Some lawyers have been of opinion,t that if a ship has been ransomed, or if the captor has given her up to her former owner, she has, as it were, ceased to be entire, and she is to be considered as a new ship, and that a total loss has taken place with respect to the insurers and lenders at maritime risk.

But this appears to me, neither just nor equitable, because the insurer is only responsible for the damage suffered, and the money lender only liable to a loss on the amount of his loan in proportion to that damage. The one, therefore, is not bound to pay, nor the other to lose more, than the amount of the salvage or ransom. Philip the II. in his ordinance upon insurance, of the 20th of January 1550,4 section 27, prohibits the ransoming of vessels from pirates, and therefore permits it from real enemies, with a view, no doubt, to shew, that the insurers are bound for the amount of the salvage, but no farther; otherwise, there was no reason for speaking of ransom in an edict which exclusively relates to the subject of insurance. Nay, the last clause of the policies in common use among the merchants sufficiently shews, that when a ship is ransomed, the interest which the insurers have therein, is not less redeemed than the property of the owner himself. I am, therefore, of opinion, that the loss or damage which the insurers are bound to pay, and which the lenders at maritime risk are obliged to lose, is the precise amount of the money

The civil law denominates maritime loans or loans at maritime risk, (fænus nauticum), those contracts which at common law are called bottomry and respondentia.

T † Consil. Belg. vol. 1. Consil. 52.- vol. 3. Consil. 248.

See note I p. 131. in which this ordinance is mentioned, by mistake, as of the 26th, instead of the 20th of Fanuary.

T.

expended in the salvage or redemption of the property. I grant, however, that if a ship has been captured, carried into port, and there condemned and sold, and afterwards is purchased by her first owners, in that case the loss will be total to the underwriters and money lenders; and the ship thus purchased, will be considered as a new ship in the hands of the first owner. There is an opinion to this effect in the Consilia Belgica.*

IV. Orders, in war, are to be strictly obeyed.

The states-general had ordered, that their troops, who held the citadel of Reyd, in the country of Juliers, should obey the orders of Florence van den Boetseler, who was lord of the place. Boetseler exhibited that order to the commandant of the fort, and required him to deliver it up to the Spaniards, who were approaching, and the commandant accordingly surrendered it up on the 30th of August 1621.7 But Maurice, prince of Orange, was so angry with him on that account, that he punished him with death on the 14th of September following, pretending that the order was only applicable to civil and not to military matters. I doubt whether he did right; for, as the citadel did not belong to the states-general, that order can have meant nothing, but that the rights of the lord of the territory, although he had admitted a garrison within it, were to be kept inviolate, and that the soldiers should not defend the citadel any longer than the lord should think proper, lest he should be involved in the same difficulty with the Spaniards, in which the count of East Friesland found himself, when the states refused to evacuate fort Lieroort, as I have mentioned at the beginning of this chapter.

V. It is not lawful to repair fortifications during a truce, or pending a capitulation.

Albericus Gentilist is of opinion, that while a treaty is on foot concerning the surrender of a town or place, it is lawful to finish or repair the fortifications thereof. Zouch, after him, adopts the same opinion. But Ferdinand thought otherwise,

1

• Vol. 1. Consil. 11. Aitz. I. 1.
| De Jure Belli, I. 2. c. 18.
§ De Jure Fec. p. 2. § 10. Q. 10.

2 B

who, after the surrender of Reggio, precipitated the French on that very account from the top of the walls; * and when the Spaniards, who, in 1622, were besieging Bergen, during a truce which had been granted to them to bury their dead, completed their works, and from thence reconnoitered the for. tifications of the town, the Dutch complained that the truce had been broken, and that the usage of war had been violated. It was, however, in 1664, agreed at Bylerschans, that the truce should not prevent the erecting and perfecting of fortifications on both sides. But it is best, when a truce is made, to suspend every warlike operation, for, such appears to be the intent and meaning of a truce; otherwise, it would be very difficult to define it.

VI. Governments are not bound to repair every loss that is occasioned by the calamities of war.

When the bishop of Munster, in 1665 and 1666, had taken and laid waste certain places in Over-Yssel, and the French, who had come to the assistance of our countrymen, had not behaved with much more moderation, the people of OverYssel applied to the states-general to be indemnified for the damage which they had suffered, but the counsellors having been consulted on that subject, gave it as their opinion, that no indemnity ought to be given, except for the deficiency suffered in their taxes and contributions, in proportion to the time during which the places had been occupied by the enemy. As to the remainder, it was to be imputed to fate, and was one of those calamities of war which must be supported by those on whom they happen to fall.

Afterwards, however, the same counsellors, having somehat changed their opinion, thought that an indemnity ought to be allowed to the inhabitants of Over-Yssel for other things, and particularly for the money which they had been obliged to raise, to save their towns from threatened conflagration.|| Agreeably to this latter opinion, the states of Holland gave their vote on the 27th of February 1667. I think that they were wrong, as far as concerned the monies levied on the inhabitants, to redeem the towns from conflagration; for, although it is certain, that that money actually saved them from being destroyed by fire; still it was not just, that the other confederates should bear the loss, who had not been exposed to the risk of perishing in that manner. For, nobody will venture to say, that a whole fleet ought to contribute, if a single ship is obliged to have recourse to jettison, for her own safety.

- Aitz. I, 44.

-$ Aitz. I. 46.

* Gentil. ubi suprd - f Aitz. I. 1..

Aitz. I. 46. - Ibid. I. 47.

VII. Relates solely to the right of the several provinces of the Dutch confederation to make peace, as incident to that of making war. It is entirely local, and therefore is omitted in this translation.

VIII. One who resides in an enemy's country, under a safe conduct from the sovereign, may sue and be sued.

It has been questioned, whether, if a safe conduct is granted to an enemy to come into our country, he may be sued here by his creditors. It was so decreed by the court of Holland, in 1588, and their judgment was confirmed by the supreme court, on the 18th of September 1590. Those decrees, I think, were perfectly just; because, the safe conduct given to an enemy, is only to protect him against hostile acts; he becomes, by virtue of it, as it were, a neutral, and neutrals may be sued and detained for their debts. At the same time, if we permit enemies to be sued, we must not prevent them from prosecuting their demands against us in a course of law,* as I have discussed more at large in a former chapter.t

IX. A safe conduct to go into or pass through the enemy's country, is no protection out of the enemy's territory.

A safe conduct, in time of war, is given for no other purpose than that the party may safely come into the enemy's territory, and continue there. Wherefore, I am astonished, that lawyers should have doubted, whether he, who has a safe

• In England, in a plea of alien enemy, the defendant must not only state “ that the plaintiff was born in a foreign country, in enmity with Great. Britain,” but “that he is not residing in the British dominions under letters of safe conduct from the king." Casseres v. Bell, 8 Term Rep. 166. T

† Above, c. 7. p. 55,

« AnteriorContinuar »