A treatise on the law of war

Front matter

ALL MATERIAL NONCIRCULATING

CALL NUMBER

ISIO

Table Of Contents

Page

Preface . . v

An account of the life and writings of the author . . . xiii

CHAPTER I. Of War in general 1

CHAPTER H.

Of a declaration of war 6

CHAPTER HI.

Of War, considered as between enemies • 18

CHAPTER IV.

Of the capture of movable property, and particularly of ships 27

CHAPTER V.

Of the recapture of movable property 36

CHAPTER VI.

Of the possession of immovables taken in war .... 45

CHAPTER VII.

Of the confiscation of the enemy's actions and credits . . 51

CHAPTER VIII.

Of hostilities in a neutral port or territory ...... 58

CHAPTER IX.

Of Neutrality • . 66

CHAPTER X.

Of Contraband 74

CHAPTER XI.

Of Trade with blockaded and besieged places 82

t a

546442 iv TABLE OF CONTENTS.

Page

CHAPTER XII.

Of the mixture of lawful with contraband goods .... 93

CHAPTER XHI.

Of neutral goods found on board of the ships of enemies . 100

CHAPTER XIV.

Of enemy's goods found on board of neutral ships ... 106

CHAPTER XV.

Of the right of Postliminy on neutral territory .... 113

CHAPTER XVI.

Of the right of Postliminy, as applied to cities and states 122

CHAPTER XVII.

Of Pirates 127

CHAPTER XVIII.

Of Privateers 139

CHAPTER XIX.

Of the responsibility of owners of privateers . . . , . 147

CHAPTER XX.

Of captures made by vessels not commissioned .... 155

CHAPTER XXI.

Of insuring enemy's property 163

CHAPTER XXII.

Of enlisting men in foreign countries, and incidentally, of expatriation 174

CHAPTER XXIII.

Of the right of the several provinces of the United Kether- /awcfs, to declare and make war 181

CHAPTER XXIV.

Of Reprisals 182

CHAPTER XXV.

Miscellaneous maxims and observations 190

Table of titles contained in the index 201

Index 203

Preface

1 HE following translation was made several years ago for my own private use, and without any intention of ever publishing it. But Mr. Hall^ the editor of the American Law Journal^ having expressed a wish to insert it in that valuable periodical work, I freely consented to it, having no other idea at the time but that it should appear there as an anonymous performance. The manuscript was accordingly handed over to the printers of the Journal, and the first ten chapters were printed off, without undergoing any other corrections but such as occurred in revising the proof sheets, to which I subjoined a few short notes as 1 went along.

But while I was engaged in that occupation, I felt my ancient attachment to a favourite author revive; the subject grew upon me; I gave an attentive revisal to the remainder of the manuscript, and added to it a more copious body of notes; and 1 now, with diffidence, venture to present the result of my labours in my name to my brethren of the American bar. It is, according to its first destination, published in and for the American Law Journal^ and will be delivered to its subscribers as the third number of the third volume of that publication; but a sufficient number of copies will also be struck vi PREFACE.

off for such as may wish to possess it as a separate work.

I need not explain to those who are conversant with the works of my author, that his Qucestiones Juris Publici are divided into two parts, entirely distinct from and unconnected with each other, otherwise than by being pubhshed together under one title, and by their general relation to subjects of public law. The first part, De Rebus Bellicis^ treats exclusively of the law of war, and forms of itself a complete treatise on that particular subject. I have thought it best, therefore, to translate and publish it separately, under its appropriate title, A Treatise on the Law of War,

To expatiate on the merits of this excellent work would be useless. It is known and admired wherever the law of nations is acknowledged to have a binding force. Its authority is confessed in the cabinets of princes, as well as in the halls of courts of justice: to be unacquainted with it, is a disgrace to the lawyer and to the statesman. It ranks its author among the great masters of the law of nature and nations, with Grotius^ Puffendorff^ Wolffius^ and Vattel. His range is not indeed so extensive as that of his illustrious colleagues; but he has more profoundly investigated and more copiously discussed than any of them the particular branch which he assigned to himself.

It is extraordinaiy that a treatise, the merit of which is so generally acknowledged, has not as yet been translated into any of the modern languages (the Low Dutch excepted), and that the English, particularly, who profess to admire it so much, have not favoured the world with a good translation of it into our common idiom. For we cannot consider as such the incorrect and incomplete version which in the year 1759 was, by the help

PREFACE. vii

of some interpolations, published by Mr. Richard Lee, as an original work, under the title of A Treatise of Captures in War, a second edition whereof appeared at London in 1803, in the preface to which the book is for the first time acknowledged to be an enlarged translation of the present work. The insufficiency of that performance to supply the place of our author's text is every where admitted; and the friends of science in this country have long expected that some of the learned civilians of Great Britain, a Robinson, a Ward, or a Brown, would present the world with an English translation of the treatise De Rebus Bellicis, executed in a manner worthy of its author. But this fond hope has unfortunately been disappointed.

No person has wished more anxiously than myself to see this translation performed by some one of the able professors whom I have just named, and who are so capable of doing it complete justice. Then my favourite author would have appeared in an English dress, with all the advantages which brilliant talents, combined with 1 profound knowledge of the science of which he treats, could have given him. The translation which I offer to the public cannot boast such high advantages; it claims no other merit but that of correctness, the only one which a translator cannot dispense with. To deserve this humble praise has been the object of my constant efforts. I have endeavoured to discover the precise English expressions w^hich my author would have used, if he had written in our language. If sometimes I have shortened his long Ciceronian periods, and divided them into more convenient paragraphs; if sometimes, also, I have connected his phrases in a manner more suited, as I thought, to the idiom in which I wrote, I believe that I have done it without injury to the viii PREFACE.

sense. Where my author narrates, I have endeavoured to state with fidelity the facts and events that he relates; where he argues, to convey the full force of his able and luminous reasoning, and I w^as sensible that it could not be done better, than by keeping as close to the text as possible. I have but in few instances wandered from this strict plan, and only Avhere our author treats of local subjects, of little or no interest to the American reader. Of the few other liberties, which I have thought necessary to take in the course of this work, it is proper that I should give an account in this place.

I have shortened the titles of the several chapters, which in the original are presented in the shape of queries, to suit the modest title of Questions^ which is prefixed to the whole work. Considering this first part, as justly entitled to be considered a complete and regular treatise on the law of war, 1 have thought it my duty to present it as such to my readers, and to head its several divisions accordingly.

For the same reason, I have entitled the twenty fifth chapter, which in the original bears the title of " Various Small Questions," [Varice Qucestiuncul{s)\ Miscellaneous Maxims and Observations, for such they will appear to be; and I have headed each of the sections into which that chapter is divided, with the result of the obhcrvations that it contains, in the form of an axiom or aphorism^ so that the reader may see at once the proposition which the author means to maintain or to illustrate in each of those subdivisions.

I have omitted the whole of the twenty third chapter and some parts of a few others, which are pointed out in notes in their several places, as treating of subjects which are local in their nature and application, and consequent- Iv, are neither useful nor interesting to us. I have, for the

PREFACE. i%

satne reason, left out a great number of the references, which our author frequently makes to the Dutch statute books, and to some other national works, little or not at all known in this country. I have, however, preserved a few to some of the most noted among them, and particularly to Aitzema^ whose Chronicle I consider as an excellent compilation of historical facts and documents, of which I have endeavoured to give a character in a note to page 15.

I have thrown into notes, in the fifteen last chapters, the numerous references which abound in the body of the original work. The first ten chapters being in the press, as I have already mentioned, when I began to revise this translation, I was prevented from doing the same with respect to them by the fear of giving to the printers too much additional trouble.

With regard to the notes which I have subjoined to the body of the work, and which, to distinguish them from those of the author, are marked 7',, they are principally intended to elucidate and explain the text. Our author often slightly refers to facts which were well known, and some of them even remembered in his day; frequently, also, he alludes to particular texts of the civil law, and to the opinions of writers whose works were familiar to the civilians of Europe and of his country, but are little read among us. In every such instance, whenever it has been in my power, I have presented the reader, in a note, with the text or passage referred to; and where that could not conveniently be done, I have given such explanations as I thought would best enable him clearly to understand the scope and meaning of the observations or arguments of our author.

As I progressed in the work, I have added some other notes, which exhibit a comparative view of the

X PREFACE.

principles and practice of the different states of America and Europe on various interesting points. In a few instances I have presumed to advance my own opinions, and even in some of them to differ from my author himself; but I have done it, I am sure, in the spirit, and, I hope, in the manner pointed out by the great orator, qucerens omnia, dubitans plerumque, et mihi diffidens,^

I have thought that an account of the life and writings of Bynkershoek would not be unacceptable to the reader, and therefore it will be found immediately after this preface. I have added to it a brief alphabetical notice of those writers on the civil law or the law of nations, whose works are not generally known, and are quoted or referred to in this book. A list of the American and English cases cited in the notes, and a table of reference to the books and titles of the quotations from the text of the civil law, which occur in the course of the original work, are also subjoined. I regret that some errors of inadvertence have escaped my attention, particularly in the notes, which I acknowledge, were written with some degree of haste, though they are the result of much previous study and reflection. Such of those errors as I have discovered are noticed in an errata, at the end of the book.f

Being about to commit this work to the candour and indulgence of the public, I have thought it necessary to premise these few observations. It has long been, as I have already observed, an anxious wish of the American jurists to see this celebrated treatise correctly translated into our language, and published in a portable form. It is very difficult to procure in this country a copy of the

* Cic. acad. qusest. 1.

t To which add the following, which was not noticed at the time: page 155, line 1, of the text, dele " whether."

PREFACE. xi

original, which is only to be found in a few of our libraries. Nor can it be obtained from Europe, without purchasing at the same time two folio volumes, which contain a great deal of matter of little interest to those who do not make the civil law the object of their particular study. With the greatest diffidence, therefore, I submit this feeble attempt to the candid and enlightened judgment of my professional brethren; if it shall be thought deserving of their approbation, I shall consiiler it as an ample and honourable reward of my labours, otherwise I shall endeavour to profit by their censure.

At the present moment, when the fate of Holland creates a lively interest in every feeling mind, the public will be disposed to receive with peculiar indulgence, a work which recals to our memory the brilliant epochs of that celebrated republic, once so famed in arts as well as in arms. She has proved to the world, that the republican spirit of commerce, and the honourable pursuits of industrious enterprise are not incompatible with any of those more brilliant attainments by which nations as well as individuals are raised to celebrity. Since her separation from the Spanish empire she has produced more great men, and achieved more great deeds, than all the remainder of that once immense and powerful monarchy.

Holland is no more, but the remembrance of her past glory can never die. The admirers of military exploits will with pleasure and pride dwell on the achievemeuts of her Maurice^ her De Ruyters, and her Van Tromps, The statesman will still guide his poiiti ai b irk by the lights which her De IVitts^ her Fan Beuningens^ and her Fagels have supplied. The astronomer, the philosopher, will explore the secrets of nature and ihe heeivens, with her ^sGravesandes and her Huygens. I he physician will improve his theory and his practice by the discoveries

t b xii PREFACE.

of her Boerhaaves and her Van Stvietens. And the student, who delights in investigating the principles of that hiw of nations, so much talked of and so little practised, will ever revere the hallowed soil which gave birth to such illustrious men as Grotius and our Bynkershoek.

Munere.

Philadelphia, October, 1810.

AN ACCOUNT or THE

LIFE AISD WRITINGS

OF

THE AUTHOR.

Cornelius van bynkershoek was bom the

29th of May 1673, at Middleburgh^ the capital of the province of Zealand^ where his father was a respectable merchant. He received his education at the university of Franeker in Friesland^ and his juvenile exercises while there, drew upon him the attention of the celebrated professor Huberus^^ who in one of his elaborate dissertations, calls him eruditisshmts juvenis Cornelius Bynkershoek.j On leaving the university, he settled at the Hague, where he exercised with great applause the profession of an advocate, and published from time to time ingenious and learned dissertations on various subjects of the civil, and of his own municipal law. In the year 1702, he published his excellent dissertation De Dominio 31arzs^ and the next year was appointed a judge of the Supreme Court of Holland^ Zealand^ and West Friesland^ which sat at the Hague* In the year 1721, he published his learned treatise Deforo Legatorum^ and three years afterwards, on the 26th of May 1724, was appointed president of the respectable court, of which he already was a member. He was now fifty one years of age. His

* Well known in this country, by his dissertation De Confiictu Leguin^ part of which has been translated into English, a>ui published by Mr. Dallas, in a note to the case of Emory v. Greenuugh, in tlie third volume of his Reports, pag-e 370.

r s;iy ACCOUNT OF THE AUTHOR.

celebrated ^icestiones juris piiblzvi, are among the last works that he produced, as they did not appear until the year 1737, when he was sixty four years old. He died of a dropsy in the chest, on the 16th of April 1743, in the seventieth year of his age. He was twice married. By his second wife he had no children, but left six daughters by his first wife.

His works consist chiefiyof dissertations and treatises (which he modestly calls questiGns) on various subjects of the law of nations, and of the civil law, combined in some instances with the municipal regulations of his own country. They were published separately, in his lifetime, except the ^icestiones juris privati^ which appeared only after his death. These are only a part of a larger work, which he did not live to finish. He had however prepared the four first books for the press, when death put a period to his labours. He had not even time to write more than the first paragraph of a preface, with which he intended to usher that work into the world, and in which he appears fully sensible of his approaching end.

Eighteen years after his death, his scattered writings were collected together by the learned Ficat^^ professor of jurisprudence in the college of Lausanne in Switzerland^ and published in two folio volumes at Geneva^ in the year 1761. This edition is the only one, that we know of, of all the works of our author, though we are informed that some of his treatises have gone through several editions in his own country. The Baron Von Ompteda] notices a second edition of the ^tcestiones juris publici.heydtn 1752,4to. But thisi the best and most complete monument of his fame, was published in a foreign land.

This edition is remarkable for its beauty and correctness, and is adorned with an elegant preface by the learned editor, and an account of the author's life and writings, from which we have in part gathered the information which we now communicate to the American reader.

* M. Ficot is the author of an esteemed treatise on natural law, entitled; Traite ^du Droit Naturel klf de r application de ses principes au Droit Civil i!!' au Droit des Gens. Lausanne, 1782, 4 vols 8vo. Baron Von Ompteda calls it a very useful book. Litter des Valkerr. p. o89.

ACCOUNT OF THE AUTHOR. xv

We shall here give a brief notice of the several works of our author, which are contained in the collection of professor Vicat^ although but few of them can be of any practical use in this country, yet we believe that a general idea of the whole will not be thought altogether uninteresting.

I. The first volunne contains:

1. Observat/ ones juris Romania in eight books, in which a variety of curious points, relating to the ancient i^i'ma^z jurisprudence, are ably discussed, several of which are interesting in an historical point of view, as elucidating through the medium of their laws, the manners and customs of that once great people. Among those, we notice the first chapter of the first book, in which the terrible partis secanto of the law of the twelve tables is ingeniously and plausibly maintained to have meant no more than that the insolvent debtor should be sold in the public market as a slave, and the proceeds of the sale distributed among his creditors. The 14th chapter of the third book discusses the question, how far and in what cases the military force could among the Romans be called in to the aid of the judicial authority. In the 4th book, chap. 13, the author comments on the 19th law of the digest De ritn nuptiarum^ by which a father was obliged to give his daughter in marriage with a competent portion, if a suitable match offered; and if he refused, might be compelled to it by the magistrate. Various other subjects of an equally interesting nature to the scientific lawyer, are examined and discussed in the course of that work; of which we think it sufficient to have instanced a few, to give an idea of the general scope and object of the whole.

2. Opuscula varii argumenti. This work like the formei", consists of dissertations on various subjects of the Roman law. They are six in number, the most interesting of which are the first, on the second law of the digest De origine juris, the third on the right which fathers had among the ancient Romans, of killing, selling, or exposing their children, and the fourth on the Roman laws, respecting foreign modes of worship. This last is replete with curious information, particularly with regard to the law which prevailed on that important subject, in the first ages of Christianity.

3. This volume concludes with an answer to his learned xvi ACCOUNT OF THE AUTHOR.

cotemporary Gerard Noodt^ who had controverted some of the opinions which he had delivered in his above mentioned dissertation, on the power which fathers had at Rome over their children.

II. The contents of the second volume are as follow:

1. Opera Minora^ consisting of six dissertations on various subjects, none of which will be thought very interesting in this country, except the 5th, De Dominio Maris^ and the 6th, De foro legatorum. These, indeed, had he never written any thing else, would have been sufficient to establish our author's reputation as a lawyer, and a publicist. Every one who has read and understood, and of course admired them, cannot help finding fault with the excessive modesty which induced him to publish them under the inappropriate title of opera minora. The learned world has long classed them among the best works that have ever appeared on those generally interesting subjects.

In the dissertation De Dominio Maris^ our author considers the long agitated question of the Dominion of the Sea^ in a liberal and impartial manner, unbiassed by prejudice, and unswayed by party spirit. He calmly and dispassionately considers in what cases the sea is capable of becoming the subject of sovereignty or exclusive jurisdiction, discusses with candor the various pretensions which different states have set up from time to time to the dominion of that element, or of considerable portions thereof; and upon the whole, his conclusions are such as reason avows, and moderate men will ever be disposed to adopt.

His dissertation, or rather treatise De foro Legatorum is in every body's hands, in the excellent translation which Mr. Barbeyrac made of it into the French language, with notes, in which he has displayed his usual judgment and learning. That translation has not only received the approbation, but the praise of our author himself, with whom Mr. Barbeyrac was intimate. We shall therefore dispense with giving a more particular account of a work which is so well and so generally known. To name it is suffieient praise.

2. ^ucestiones juris publici. This work is divided into two parts; the first of which, entitled De Rebus Bell'icis is now presented in an English translation to the American public, under

ACCOUNT OF THE AUTHOR. xvii

its appropriate title of " A Treatise on the Law of War;''^ and a more complete one never yet has been written on this interesting subject. The seco7id ■p2Lrt which is entitled De rebus varii argumenti^ treats of various subjects, some of them belonging to the law of nations, and others to the constitution and laws of the United Netherlands* From the 3d to the 12th chapter inclusive, our author treats of the law of ambassadors^ and those chapters might well be added to the treatise Deforo LegatoYum^ with the subject of which they are more nearly connected than with any other. In the seventh chapter he examines the question, whether the acts of a minister are binding when contrary to his secret instructions^ The 21st chapter treats of the salute to ships of war at sea, and seems to belong more properly to the dissertation De Domi?iio Maris^ where the same subject is treated of. The remainder of the chapters, twentyfive in number, do not treat of any subject of general concern, and the whole of this second book is unconnected with the first, which is best exhibited as a separate and independent treatise on the Law of War,

The ^ucestiones juris publici have been translated into the Low Dutch language by Matthias Ruuscher^ in the year 1739. We do not know of any other translation of them into any language whatever, except that of the first book by Mr. Lee into English^ of which we have made mention in the preface.

3. ^oestiones juris privati. This work, which was to have contained one hundred chapters, and contains only forty-eight, was left incomplete, as we have already mentioned, by the death ofthe learned author. It is divided into four books, chiefly on topics ofthe civil law and the municipal law of Holland, The fourth book alone, and the last chapter of the third, may be considered as interesting to the American jurist^ as they treat ofthe subject of insurance, and of various points ofthe maritime and commercial law. This work closes the second and last volume.

Our author also wrote two other considerable works, the one entitled Corpus juris Hollandice £s? Zelandice^ and the other Observation's Tumultuarice or hasty notes^ being memoranda which he took from day to day, of the decisions of the court in which he sat for the space of forty years. He gave directions xviii ACCOUNT OF THE AUTHOR.

by his will, to his executors, that those works should not be published; and they strictly complied with his injunction. As the ancient laws of Holland have been subverted, and the Napoleon code introduced in their place, it is probable that those writings, if published, would not be found of any great use at the present time.

The character of our author's works has long been established among the learned of Europe. Heineccius, who, in the year 1723, published at Leipsick^ an edition of the four first books of the Observationes Juris Romaiii^ calls him in his preface to that work, *'^ a man of consummate learning and ability, possessing a sound discriminating mind, and an extraordinary and incredible fund of legal knowledge."^ Barbeyrac^ in the preface to his translation of the treatise Deforo Legatorum^ describes him as one of that superior class of writers, whose works are only intended for men of learning, and who, disdaining to retail the opinions of others, are unwilling to say any thing which has been observed before, and endeavour, as much as they can, to exhibit their subject in some new point of view. "And he is right;" continues he, " to have taken that ground. One who possesses, within himself, such a rich fund of knowledge, may well leave it to others to borrow and repeat what has already been said."f

In England^ the great Lord Mansfield thought him worthy of his high commendation from the bench, and recommended the work which we have translated, to the attention of the members of the English bar.* Since that time, our author's works on the law of nations, (but particularly that which is now before us) have been considered as standard authorities, in Great Britain as well as in the United States^ and are daily quoted

t Notre auteur est tin de ces ecrivains du plus hciut vol, qui n'^crivent que pour les savants, et qui 7ie veutent dire, autantqxi'il se pent, rien que du nouveau- Et it a raison de se mettre sur ce pied id. ^land on est si riche de son propre fonds, on fait tres bien de laisser d d'autres ie soin d'' empruriter ce qui a M dcjd dit

* 'L.ovd Mansfield ^Tpoke extremely well (jf Bynkershoek, Sim\ recommended especially, as w^ell worth reading, his book of prizes, ^laestiones juris publici. 2 Bur. 690. in Tnargin.

ACCOUNT OF THE AUTHOR. xlx

with respect by the bar, and relied on by the bench as the ground of their decisions.

Nor have our American statesmen been behindhand in commending the merit and talents of this eminent writer. Among them none has bestowed upon him more correct and judicious praise, than the great character, who is generally understood to be the author of the excellent Examination of the British doctrincy which subjects to capture a neutral trade^ not open in time of peace, " Bynkershoek^"^ says he, " treats the subject of belligerent andneutral relations with more attention, and explanshis ideas with more precision than any of his predecessors,'^''] How honourable to our author is this testimony, when we consider, on the one hand, by whom it is given; and reflect on the other, that in the list of those predecessors whom Mr. Madison speaks of, are found the celebrated names of Puffendorff ^w^ of Grotiusl

It ought to be a great inducement to the study of the law of nations, that the fame of those who devote themselves to that important branch of science, extends throughout the civilized world; while the most excellent works on mere municipal jurisprudence, are hardly known or spoken of out of the country which gave them birth. Thus the writings of Grotius^ Bynkershoeky and Vattel^ are read and admired in all America and Europe^ while the very names of Coke and Dumoulin\ are unknown out of the countries where the particular systems of law are in force, which they took so much pains to methodize and elucidate. Of the truth of this observation, a striking instance is to be found in the works of our author, who from an opinion of lord Coke^ which he had found quoted and misrepresented in Dr. Zouchbs treatise De jure inter gentes^ conceiving him to be a writer entirely ignorant of the law of nations, treated him and his opinion with the most marked contempt, calling him a certain Coke^-(Cocus quidam); and punning upon his name, declared that he could not concoct his opinions,