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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, advancing by order of the President into a state in organ- : ized 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 carrying 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 undoubtedly 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 pur pose 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.
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 insurlection 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
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 lying.
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 guished by designating the one as warlike, as operating directly upon the vessels of the
and the other as civil, as operating upon those of the citizens or subjects of the nation proclaiming the embargo.
Vattel says :: “ 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, , and if they stay beyond the term prescribed, he
has a right to treat them as enemies--as unarmed
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
tice as to em
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 in. demnify 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
declaration of hostilities, and upon the effect of such seizure, in the event of an adjustment of diffi. culties, 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;
ellect of embargo.