CHAPTER XI. OBLIGATIONS OF ABSTENTION.

INTRODUCTORY.

1

A number of obligations of abstention have received specific recognition in treaties and international agreements to which the United States is a party, and are therefore according to the constitution part of the law of the land. In the Hague conventions the United States has bound itself to abstain from exercising war rights against neutrals until it has notified them of the outbreak of war, from committing hostilities in neutral territory or in neutral waters, and from using neutral harbors or territory as bases of naval or military operations or for the undue asylum of war vessels. In special treaties as well as the Hague conventions and the Declaration of London, which, however, is unratified, it has agreed to abstain from injuring neutral individuals in person or property except in accordance with specified rules. Although so far as these rules bind the state they are sanctioned by considerations of policy rather than by municipal law, yet a belligerent acts through its agencies of government, largely its army and navy. The duties of abstention imposed upon it may be to a considerable extent guaranteed by the control of these bodies through municipal law. Looked at from this standpoint the duties in question become duties of prevention. What a belligerent community is bound to abstain from doing, it is bound to prevent its army and navy from doing. Such duties may be controlled by municipal law and will be considered under obligations of prevention.

Municipal law may also serve to make the obligations effective through the action of constitutional checks between departments of government. Thus the courts may be given authority to control the action of the executive in seizing neutral property. This situation actually exists in the provisions of municipal law requiring the adjudication of all maritime seizures by prize courts before their confiscation. The judiciary here, by its power to liberate prizes, acts as a check upon the abuse of authority by the executive, and in so far as it actually applies rules of international law in determining prize cases, enforces the belligerent government's duty to abstain from illegally interfering with neutral commerce.

It must not, however, be forgotten that the prize court, although it may apply international law, is a court of the belligerent state and is always bound by municipal law. It has no authority as against the sovereign power in its state. It is only over one branch of the government that its authority exists.

The fact that the belligerent state controls the prize court, a condition which it was hoped would be remedied by the establishment of an international prize court, inevitably puts the neutral claimant at a disadvantage in litigating, and were it not for the pressure of his own government and the sanctions of international opinion, he would not receive his rights, as is indicated by the distinct difference in the enforcement of neutral rights when most of the great powers are belligerent and when most of them are neutral.

It is the belligerent state's duty to make its prize court, in the words of Lord Stowell, “a court of the law of nations”.5 Yet as it is a court of the belligerent state the law which it! enforces is by definition municipal law. Here therefore we have a case where we should expect to find international law enforced directly as a part of municipal law. We should expect to find the rules applied by prize courts, rules of both international law and municipal law. Both English and American prize courts have on numerous occasions assured us that this is the situation which actually exists, yet with a few cases to the

5 The Recovery, 6 Rob. 348, (1807). See T. E. Holland, Studies in International Law, p. 196.

Cases asserting that prize courts apply international law. EnglishThe Maria, i Rob. 350, (1799); The Recovery, 6 Rob. 348, (1807); The Minerva, (1807); The Fox, Edw. Adm. 312, (1811); Le Louis, 2 Dods. 239, (1817); The Annapolis, 30 L. J. Pr. M. and Ad. 201. See also Phillimore, International Law, 3; sec. 436. For discussion of these cases see Holland, op. cit. 196. The first three of these cases are authority for the view that prize courts must apply international law even when con

contrary we have also been informed that even a prize court is bound to obey a positive mandate of its government, even when in conflict with the law of nations. Lord Stowell seized the dilemma by the horns. “These two propositions," he said, “that the court is bound to administer the law of nations and that it is bound to enforce the king's orders in council are not at all inconsistent with each other," because one could not “without extreme indecency" presume that a conflict could exist. In the United States Chief Justice Marshall solved the dilemma by resort to the magic power of legal interpretation, “It has also been observed that an act of congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights or to affect neutral commerce further than is warranted by the law of nations as understood in this country.'8

Neither Stowell's confidence in the impossibility of a conflict nor Marshall's reliance upon interpretation can obscure the fact that conflicts between the law of nations and of the nation have occurred and have been so direct that no interpretation can avail. In such circumstances prize courts, the same as any other courts, must obey municipal law.10 A failure to trary to municipal law. United States cases—Talbot vs. Seamans, I Cranch 1, 37, (1801); The Nereide, 9 Cranch 388; United States vs. The Active, Fed Cas. 759; Thirty Hogsheads of Sugar vs. Boyle, 9 Cranch 191; The Scotia, 14 Wall. 170; The Paquete Habana, 175 U. S. 677.

7The Fox, Edw. Adm. 312, (1811).
8Murray vs. The Charming Betsey, 2 Cranch 64, 118, (1804).

'Strangely enough the very case in which Lord Stowell spoke involved just such a conflict. The orders in council upon the basis of which he decreed condemnation of the neutral vessel before him, have been universally denounced as contrary to international law. See article entitled Disputes with America in Edinburgh Rev., Feb. 1812, 19;290, severely censuring Lord Stowell's alteration of opinion from 1798 to 1811, quoted Moore's Digest, 7;648-651. Phillimore in his international law, 3; sec. 436, implies a similar censure. "If he (Lord Stowell) had not so considered them (i.e. considered the orders in council to be consistent with international law) and nevertheless executed them, he would have incurred the same guilt and deserved the same reprehension as the judge of a municipal court who executed by his sentence an edict of the legislature which plainly violated the law written by the Creator upon the conscience of his creature." See Holland, op. cit. p. 198.

10 Regina vs. Keyn, L. R. 2 Ex. D. 160; The Schooner Exchange vs. McFaddon, 7 Cranch 116; Murray vs. The Charming Betsey, 2 Cranch 64; Mortenson vs. Peters, 14 Scot. L. T. R. 227, (1906) Bentwich, p. 12.

do so would be a dereliction of duty on the high way to rebellion. The duty therefore rests with the belligerent state to see that the law applied by its prize courts is international law. We will examine the principles of law thus applied in the United States, in cases involving the rights of neutral individuals. They are to be found largely in prize court decisions, but there have also been statutes, treaties, and executive orders stating principles of this branch of law which the courts are bound to observe.

NEUTRAL PROPERTY AT SEA.

The doctrine is maintained in the United States that title to property seized at sea does not vest until after decision of the court. 11 The government, therefore, appears before the prize court as an applicant for condemnation while the neutral individual claims restitution, compensation, damages, or, if the vessel is a recapture, restoration.

The bases upon which condemnation of neutral vessels and property are justified under international law are (1) breach of blockade, (2) carriage of contraband, (3) unneutral service, (4) presumption of enemy character, (5) necessity or the right of angary. The belligerent government will therefore claim condemnation on one of these grounds. The neutral owner will claim restitution if the belligerent does not make good his claim for condemnation; he will claim compensation if in such a case the vessel has been sold, destroyed or requisitioned; he will claim damages if the vessel has been seized without probable cause or has not been treated with proper care in bringing in; or he will claim restoration if he is an original owner of a recaptured prize.

GROUNDS FOR CONDEMNATION.

(1) Breach of Blockade. In a number of early treaties the principles of blockade were laid down, requiring effectiveness and sometimes individual notification of vessels.12 The

11 The Adventure, 8 Cranch 221, (1814); The Nassau, 4 Wall. 634; The Nuestra Senora de Regla, 108 U. S. 92, 103, (1882); The Tom, 29 Ct. CI. 68, 97, (1894); Grundy, Att. Gen., 3 op. 377, (1838). See letter of Sir W. Scott, (Lord Stowell) and Sir J. Nicholl, to Mr. Jay, 1794, stating the general principles of prize law and the necessity of adjudication. Am. St. Pap., 1;494, printed in Moore's Digest, 7;603-608.

12 Effectiveness has been required in nineteen treaties with thirteen countries, of which the following are in force: Bolivia, 1858, art. 18,

Declaration of London of 190913 lays down the rules of blockade at length. This treaty, however, has not received general ratification, although the United States senate has approved it.

The United States has instituted blockades during the Mexican, Civil and Spanish wars. On these occasions the law to be applied in dealing with neutrals was defined in proclamations declaring the blockades and instructions to naval commanders. The prize courts in applying the law have relied on these treaties, proclamations and instructions in addition to judicial precedents and general principles of international law on the subject. In proclamations and instructions the principles that the blockade must be effective and declared in order to be binding have been generally specified. Individual warning, however, has usually not been required. The whole practice on the subject stating these points was embodied in Stockton's Naval war code in force as a general order of the Navy Department from 1900 to 1904.14 Malloy, p. 119; Colombia, 1846, art. 18, p. 308; Italy, 1871, art. 13, p. 973; Sweden, 1783-1798, revived, 1816, 1827, art. 10, p. 1728.

Individual notification of vessels ignorant of blockade has been required in twenty-one treaties with seventeen countries, of which the following are in force: Bolivia, 1858, art. 26, p. 120; Colombia, 1846, art. 20, p. 308; Italy, 1871, art. 13, p. 973. Individual warning unless the vessel could have heard of the blockade has been required in six treaties with five countries, of which the following are in force: Sweden, 1827, art. 18, p. 1754; Prussia, 1828, art. 13, p. 1500; Greece, 1837, art. 16, p. 853. See also Moore's Digest, 7;827.

13 Declaration of London, Charles, Treaties, 1913, pp. 269-272, signed Feb. 26, 1909. Ratification advised by senate, Apr. 24, 1912,

14 Proclamations of Blockade: Aug. 19, 1846, by Commodore Stockton, (Moore's Digest, 7;790, Br. and For. St. Pap. 34;1139); Apr. 19, 27, 1861, by President Lincoln, (12 stat. 1259); Apr. 30, 1861, by Commander Prendergast, (F. H. Upton, Law of Nations affecting commerce during war, 3rd ed., N. Y. 1863, p. 487); Apr. 22, 1898, by President McKinley, (30 stat. 1769). Naval Instructions relating to blockade, May 14, 1846, (Moore's Digest, 7;828; Br. and For. St. Pap., 34;1139); Dec, 24, 1846, (Moore's Digest, 7:790); May 8, 1861, (Prize cases, 2 Black 676); Nov. 6, 1861, May 14, 1862, (Upton, op. cit., p. 490); Aug. 18, 1862, (Official Records, Union and Confederate Navies, Ser. I, 1;417, Moore's Digest, 7;700); June 20, 1898, (Gen. Ord., Navy Dept., 1898, No. 492, For. Rel., 1898, p. 780, Freeman Snow, International Law, 2nd. ed., Washington, 1898, p. 174); June 27, 1900, Stockton's Naval War Code, (Gen. Ord., Navy Dept., 1900, No. 551, revoked Gen. Ord., Navy Dept., Feb. 4, 1904, No. 150, Printed, Naval War College, International Law Discussions, 1903, p. 112).