Part 1 (1/2)
The Laws Of War, Affecting Commerce And s.h.i.+pping.
by H. Byerley Thomson.
PREFACE.
The success which attended the publication of the First Edition of this Treatise, on ”The Laws of War, affecting Commerce and s.h.i.+pping,”
has confirmed the author's opinion of the utility of such a work; and its hearty acceptance by the mercantile world has induced him to add largely and materially to this edition. The general plan of the former work has not been departed from in the first portion of the present; and although a great number of fresh and popular topics have been here touched upon, the author has endeavoured to preserve (as far as was consistent with accuracy), that concise and popular character which he believes in no small degree contributed to the favourable reception of the first edition.
An Introduction has also been added, discussing the origin of the Laws of War generally, and the utility of the work has been enhanced by an Index for facilitating reference.
In a Second Part, which will shortly appear, the Author proposes to treat of the Laws of War relating to the Army, Navy, and the Militia, as well as the administration of the bodies governing those various sections of the war force of the country.
H.B.T.
8, SERJEANT'S INN, TEMPLE,
APRIL 15, 1854.
INTRODUCTION TO PART I.
It would be superfluous to trouble my readers, in a concise practical treatise, with any theoretical discussion on the origin of the Law of Nations, had not questions of late been often asked, respecting the means of accommodating rules decided nearly half-a-century ago, to those larger views of international duty and universal humanity, that have been the natural result of a long Peace, and general progress.
To commence with the question, Who is the international legislator? it must be observed, that there is no general body that can legislate on this subject; no parliament of nations that can discuss and alter the law already defined. The Maritime Tribunals of maritime states always have been, and still are, almost the sole interpreters and mouthpieces of the International Law. Attempts that have been made by our own parliaments, by individual sovereigns, and even by congressional a.s.semblies of the ministers of European powers, to create new universal laws, have been declared by these courts to be invalid, and of no authority. And though it is distinctly laid down, that the Law of Nations forms a part of the Common Law of England, yet it is not subject to change by Act of Parliament, as other portions of the Common Law are; except so far as Parliament can change the form, const.i.tution, and persons of the courts that declare the law.
Lord Stowell says
”No British Act of Parliament, nor any commission founded upon it, can affect the rights or interests of foreigners, unless they are founded upon principles, and impose regulations, that are consistent with the Law of Nations.”
And in another place--
”Much stress has been laid upon the solemn declaration of the eminent persons (the ministers of the European powers), a.s.sembled in Congress (at Vienna). Great as the reverence due to such authorities may be, they cannot, I think, be admitted to have the force of over-ruling the established course of the general Law of Nations.”
It is to the Maritime Courts, then, of this and other countries, that the hopes of civilization must look for improvement and advance in the canons of international intercourse during the unhappy time of war.
The manner, and the feeling in which they are to p.r.o.nounce those canons cannot be more finely enunciated than in the words of Lord Stowell himself.
”I consider myself as stationed here, not to deliver occasional and s.h.i.+fting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the _Law of Nations_ holds out, without distinction, to independent states, some happening to be neutral, and some belligerent.
”The seat of judicial authority is indeed locally _here_ in the belligerent country, according to the known law and practice of nations; _but the law itself has no locality_.
It is the duty of the person who sits here to determine this question exactly as he would determine the same question, if sitting at Stockholm; to a.s.sert no pretensions on the part of Great Britain, which he would not allow to Sweden in the same circ.u.mstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to _Great Britain_, in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as UNIVERSAL LAW upon the question.”
When an Admiralty Judge investigates the law in this impartial spirit, he occupies the grand position of being in some respects the director of the deeds of nations; but with equal certainty does the taint of an unjust bias poison all his authority; his judgments are powerful then only for evil; they bind no one beyond the country in which he sits, and may become the motive and origin of reprisal and attack upon his native land.