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Neutral property in an enemy's vessel.
and authority have been ably vindicated by English statesmen and jurists, and particularly by Mr. Ward, in his treatise of the relative rights and duties of belligerent and neutral powers in maritime affairs, published in 1801, and which exhausted all the law and learning applicable to the question.
It is also a principle of the law of nations relative to neutral rights, that the effects of neutrals, found on board of enemy's vessels, shall be free; and it is a right as fully and firmly settled as the other, though, like that, it is often changed by positive agreement. The principle is to be met with in the Consolato del Mare, and the property of the neutral is to be restored without any compensation for detention, and the other necessary inconveniences incident to the capture. The former ordinances of France of 1543, 1585, and 1681, declared such goods to be lawful prize and Valin justifies the ordinances, on the ground, that the neutral, by putting his property on board of an enemy's vessel, favours the enemy's commerce, and agrees to abide the fate of the vessel. But it is fully and satisfactorily shown, by the whole current of modern authority, that the neutral has a perfect right to avail himself of the vessel of his friend, to transport his property; and Bynkershoeck has devoted an entire chapter to the vindication of the justice and equity of the right.
The two distinct propositions, that enemy's goods found on board a neutral ship, may lawfully be seized as prize of war, and that the goods of a neutral found on board of an
a Grotius, b. 3. c. 6. and 16. Bynk. c. 13. Vattel, b. 3. c. 7. sec. 116. Answer to the Prussian Memorial, 1753. Mr. Jefferson's Letter to M. Genet, July 24th, 1793. Mr. Pickering's Letter to Mr. Pinckncy, January 18th, 1797.
b Com. b. 3. tit. 9. des Prizes, art. 7.
c Consulat de la Mer, par Boucher, tom. 2. c. 276. sec. 1012, 1013. Heineccius, de Nav. ob. vect. c. 2. sec. 9. Opera, tom. 2. part 1. p. 349-355. Vattel, b. 3. c. 7. sec. 116. Bynk, c. 13.
enemy's vessel, were to be restored, have been explicitly incorporated into the jurisprudence of the United States, and declared by the Supreme Court to be founded in the law of nations. The rule, as it was observed by the Court, rested on the simple and intelligible principle, that war gave a full right to capture the goods of an enemy, but gave no right to capture the goods of a friend. The neutral flag constituted no protection to enemy's property, and the belligerent lag communicated no hostile character to neutral property. The character of the property depended upon the fact of ownership, and not upon the character of the vehicle in which it is found. After vindicating the simplicity and justice of the original rule of the law of nations, against the speculations of modern theorists, and the ultima ratio of the armed neutrality, which attempted to effect by force a revolution in the law of nations; the Court stated, that nations have changed this simple and natural principle of public law, by conventions between themselves, in whole or in part, as they believed it to be for their interest, but that the one proposition, that free ships should make free goods, did not necessarily imply the converse proposition, that enemy's ships should make enemy's goods. If a treaty established the one proposition, and was silent as to the other, the other stood precisely as if there had been no stipulation, and upon the ancient rule. The stipulation that neutral bottoms should make neutral goods, was a concession made by the belligerent to the neutral, and it gave to the neutral flag a capacity not given to it by the law of nations. On the other hand, the stipulation subjecting neutral property found in the vessel of an enemy to condemnation as prize of war, was a concession made by the neutral to the belligerent, and took from the neutral a privilege he possessed under the law of nations; but neither reason nor prac
tice rendered the two concessions so indissoluble, that the one could not exist without the other. It rested entirely in the discretion of the contracting parties, whether either or both should be granted. The two propositions are distinct and independent of each other, and they have frequently been kept distinct by treaties, which stipulated for the one, and not for the other."
The government of the United States, in their recent negotiations with the republics in South America, have pressed very earnestly for the introduction and establishment of the principle of the Baltic code of 1780, that the friendly flag should cover the cargo; and this principle is incorporated into the treaty between the United States and Colombia, in 1825. The introduction of those new republics into the great community of civilized nations, has justly been deemed a very favourable opportunity to inculcate and establish, under their sanction, more enlarged and liberal doctrines on the subject of national rights. It has been the desire of our government to obtain the recognition of the fundamental principles, consecrated by the treaty with Prussia in 1785, relative to the perfect equality and reciprocity of commercial rights between nations; the abolition of private war upon the ocean; and the enlargement of the privileges of neutral commerce. The rule of public law, that the property of an enemy is liable to capture in the vessel of a friend, is now declared, on the part of our government, to have no foundation in natural right; and that the usage rests entirely on force. Though the high seas are a general jurisdiction, common to all, yet each nation has a special jurisdiction over its own vessels, and all the maritime nations of modern Europe have, at times, acceded to the principle, that the property of an enemy should be protected in the vessel of a friend.. No neutral nation, it is said, is bound to submit to the usage; and the neutral may have
a The Cygnet, 2 Dodson's Adm. 299. S. P.
yielded, at one time, to the usage, without sacrificing the right to vindicate, by force, the security of the neutral flag at another. The neutral right to cover enemy's property is conceded to be subject to this qualification: that a belligerent nation may justly refuse to neutrals the benefit of this principle, unless it be conceded also by the enemy of the belligerent to the same neutral flag.'
But, whatever may be the utility or reasonableness of the neutral claim, under such a qualification, I should apprehend the belligerent right to be no longer an open question; and that the authority and usage on which that right rests in Europe, and the long, explicit, and authoritative admission of it by this country, have concluded us from making it a subject of controversy; and that we are bound, in truth and justice, to submit to its regular exercise, in every case, and with every belligerent power who does not freely renounce it.
It has been a matter of discussion, whether the captor of the enemy's vessel be entitled to freight from the owner of the neutral goods found on board, and restored. Under certain circumstances, the captor has been considered to be entitled to freight, even though the goods were carried to the claimant's own country, and restored; and he clearly is entitled to freight, if he performs the voyage, and carries the goods to the port of original destination. In no other case is freight due to the captor, and the doctrine of pro rata freight is entirely rejected, because it would involve a prize court in a labyrinth of minute inquiries and considerations, in the endeavour to ascertain, in every case, the balance of advantage or disadvantage, which an interruption and loss of the original voyage, by capture, might have produced to the owner of the goods."
a Letter of Mr. Adams, Secretary of State, to Mr. Anderson, 27th May, 1823. President's Message to the Senate of 26th December, 1825, and to the House of Representatives, March 15th, 1826.
b Bynk. Q. J. P. b. 1. ch. 13. The Fortuna, 4 Rob. 278. The Diana, 5 Rob. 67. Vrow Anna Catharina, 6 Rob, 269,
In the case of the Nereide, the Supreme Court of the United States carried the principle of immunity of neutral property on board an enemy's vessel, to the extent of allowing it to be laden on board an armed belligerent cruiser; and it was held, that the goods did not lose their neutral character, not even in consequence of resistance made by the armed vessel, provided the neutral did not aid in such armament or resistance, notwithstanding he had chartered the whole vessel, and was on board at the time of the resistance. The act of arming was the act of the belligerent party, and the neutral goods did not contribute to the armament, further than the freight, which would be paid if the vessel was unarmed, and neither the goods nor the neutral owner were chargeable for the hostile acts of the belligerent vessel, if the neutral took no part in the resistance. A contemporary decision of an opposite character, on the same point, was made by the English High Court of Admiralty, in the case of the Fanny; and it was there observed, that a neutral subject was at liberty to put his goods on board the merchant vessel of a belligerent; but if he placed them on board an armed belligerent ship, he showed an intention to resist visitation and search, by means of the association, and, so far as he does this, he was presumed to adhere to the enemy, and to withdraw himself from his protection of neutrality. If a neutral chooses to take the protection of a hostile force, instead of his own neutral character, he must take (it was observed) the inconvenience with the convenience, and his property would, upon just and sound principles, be liable to condemnation along with the belligerent vessel.
The question decided in the case of the Nereide is a very important one in prize law, and of infinite importance in its practical results; and it is to be regretted, that the decisions of two courts of the highest character, on such a point,
a 1 Dodson, 443.