The Laws of War, Affecting Commerce and ShippingThomson, H. Byerley (Henry Byerley)
History
The Laws of War, Affecting Commerce and Shipping
Thomson, H. Byerley (Henry Byerley)
Maritime law; War (International law); War, Maritime (International law)
A stoppage or seizure (in other words, an embargo), must not be
confounded with complete reprisals. When ships are seized for the
purpose of obtaining satisfaction for a particular injury, or security
against a possible event, that seizure is only an embargo. The vessels
are preserved as long as there is any hope of obtaining satisfaction
or justice. As soon as that hope disappears, they are confiscated, and
the reprisals are accomplished. In fact, that which was _embargo_
becomes reprisals by the _act of confiscation_.[201]
In the words of Lord Stowell:
"Upon property so detained the declaration of war is said to
have a retroactive effect, and to render it liable to be
considered as the property of enemies taken in time of war.
The property is seized provisionally--an act hostile enough
in the mere execution, but equivocal as to its effects, and
liable to be varied by subsequent events, and by the conduct
of the government, the property of whose subjects is so
detained. Where the first seizure is equivocal, if the
matter in dispute terminates in reconciliation, the seizure
is converted into a mere civil embargo. This would be the
retroactive effect of that course of circumstances. On the
contrary, if the transactions end in hostility, the
retroactive effect is directly the other way. It impresses a
hostile character upon the original seizure. It is declared
to be embargo; it is no longer an equivocal act, subject to
two interpretations; there is a declaration of the _animus_
by which it was done, that it was done _hostili animo_, and
is to be considered a hostile measure _ab initio_. The
property taken is liable to be used as the property of
persons, trespassers _ab initio_, and guilty of injuries
which they have refused to redeem by any amicable alteration
of their measures. This is the necessary course, if no
particular compact intervenes for the restitution of such
property taken before a formal declaration of
hostilities."[202]
The modern rule seems to be, that tangible property, belonging to an
enemy, ought _not_ to be _immediately confiscated_. It may be
considered as the opinion of all who have written on the _jus belli_,
that war gives the _right_ to confiscate, but does not of itself
confiscate the property of an enemy.
Chancellor Kent expressly terms this species of hostility--_a
reprisal_.[203] And Lord Mansfield says, that though foreign ports or
harbours are not the high sea any more than the shore, yet numberless
captures made there have been condemned as prize,[204] _i.e._ can be
the subject _of reprisal_.
NOTE B.--_War Bill Act_.
Public-domain text, read in full here on John Shaqi.
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