On these articles M. Treitt, the learned counsel to the British embassy, makes the following observations: Vous vondrez bien remarquer la généralité de ces expressions, quiconque, actions hostiles: le législateur n'as pas voulu définir ce qu'il faillait entendre par actions hostiles; il en a laissé l'appréciation soureraine aux juges. Il ne s'agit point dans les articles 84 et 85 du code pénal des machinations et maneuvres au profit d'une puissance étrangère, et ayant pour objet de provoquer des hostilités. Ces machinations pratiqués dans une intention et un but criminels rentrent dans les différentes espèces de trahison, lesquelles sont punies par les articles 76 à 83 du même code. Les articles 84 et 85 s'appliquent aux simples cas d'imprudence, de témérité, de négligence; c'est moins l'intention que le fait matériel qui est puni. La loi ne voit que le résultat; ainsi: "La France a-t-elle été exposée à une déclaration de guerre, la guerre a-t-elle été déclaré? Les Français ont-ils été exposés à de représailles?” Ces seules questions résolues affirmativement entraineront l'application d'une des peines si sévères prononcées par la loi, et en outre le paiement de dommages-intérêts qui peuvent toujour être réclamés. Il faut donc trois conditions pourqu'il y ait lieu à l'application des articles 84 et 85 du code pénal: 1. Que l'action soit hostile. 2. Que l'action n'ait pas été approuvée par le gouvernement. 3. Que la France a été exposée à une déclaration de guerre ou des Français exposés à des représailles. Je précise ces trois circonstances parceque c'est le pouvoir judiciaire seul qui est appelé à les résoudre et à décider de la culpabilité. Si les juges décident que telle action n'est point une action hostile, et par conséquent non-violatrice de la neutralité, le gouvernement devra respecter cette décision et pourra l'opposer au belligérant qui se plaindrait. Si devant les juges l'accusé excipait d'une approbation, soit tacite, soit expresse par le gouvernement, l'action incriminée ne pourrait plus être punie. Enfin, si l'action hostile n'avait pas pour conséquence des représailles ou une éventualité de guerre, elle cesse d'être criminelle.1 Writing to Mr. Fane, then British minister at Paris, M. de Moustier, the minister for foregn affairs, says: A proprement parler, il n'y a pas de disposition dans la législation francaise qui marque d'une manière précise les limites de la neutralité à observer entre deux puissances étrangères qui sont en état de guerre, les questions de cette nature étant d'un caractère mixte, et trouvant leur solution dans les principes généraux du droit international. It is clear, therefore, that the French law went no further than to provide for the punishment of any infraction of international law which has the effect of exposing France to a declaration of war or to reprisals. Now, as we have seen, the sale even of armed ships is not an offense against neutrality and could not produce the consequences referred to in the articles of the code. It is true the government has the power of preventing the arming of vessels in its own hands, if it thinks proper to use it, as the exportation of arms, except with the permission of the government, is prohibited under heavy penalties-not, indeed, with the motive of preventing breaches of neutrality, but from motives of policy of a very different character. If, indeed, the construction of an armed vessel formed part of an enterprise having for its immediate object hostile operations against a belligerent power, then, as I have already pointed out, the whole would amount to a violation of neutrality. But an imperial decree of the 10th June, 1861, passed with a view to the war which had then broken out, contained in its 3d article the following provision: Il est interdit à tout Francais de prendre commission de l'une des deux parties pour armer des vaisseaux en guerre, ou d'accepter des lettres de marque pour faire la course maritime, ou de concourir d'une manière quelconque à l'équipement ou à l'armement d'un navire de guerre ou corsaire de l'une des deux parties belligérantes.3 Report of Neutrality Laws Commission, p. 45, British Appendix, vol. iii. British Appendix, vol. iii, p. 22. Thus, the law of France, in respect of the equipping and arming of ships of war, was placed on the same footing as that of Great Britain and America. Belgium, which, as it is known, has adopted the French codes, has likewise the eighty-fourth and eighty-fifth articles of the Code Law of Belgium. pénal; but with the exception of severe laws against privateering, or the reception of privateers, the prohibitive and preventive power of the law depends on the articles in question. Law of the Netherlands. The Netherlands, in like manner, having also adopted the French code, have the eighty-fourth and eighty-fifth articles; but no special provision as to equipping or arming of vessels in the way of trade existed prior to the year 1866, as appears from the express statement of M. van Zuylen de Nyevelt, the Netherlands minister for foreign affairs, in a letter to Mr. Ward, found in the appendix to the British case.1 It is true that M. de Zuylen makes the following observation: Quant aux moyens coactifs dont le gouvernement pourrait disposer pour empêcher des violations de sa neutralité, les articles 84 et 85 du code pénal peuvent aussi daus quelques cas servir à ce but. Ceux, par exemple, qui tacheraient d'équiper ou de vendre des vaisseaux de guerre dans nos ports pour le compte des belligérants pourraient être poursuivies en vertu de ces articles; les navires alors seraient saisis comme pièce de conviction et par là mème leur sortie serait empêchée. But it is to be remarked that the foregoing observation as to the possible application of the eighty-fourth and eighty-fifth sections of the penal code to the equipping or sale of ships is given only as a matter of opinion; no instance appears to have occurred in which the equipping or sale of a vessel of war has been held to be an offense within these articles. It must obviously depend on whether what was done amounted to a violation of international law affording a just cause of war. The regulations issued by the Dutch government in 1866 do not touch the case of the equipment or sale of ships, but only the admission of belligerent vessels into Dutch ports. It may be remarked, in passing, that it is expressly provided by article 4 of the regulations that "ships of war may remain an unlimited time in Dutch harbours and estuaries, and may also provide themselves with an unlimited supply of coal.”1 Spain has two provisions corresponding to the articles of the French code, viz, article 148 of the codigo penal, and article 258 of a statute of 1822:2 Law of Spain. ART. 148. Whosoever shall, without having been permitted to do so by competent authority, have provoked or given motive to a declaration of war against Spain on the part of another power, or shall have exposed Spanish subjects to suffer vexations or reprisals against their persons or properties, shall be punished with imprisonment; and if such person be a public functionary, he shall be punished with temporary reclusion. ART. 258. Whosoever shall, without the knowledge, authority, or permission of the government, have committed hostilities against any allied or neutral power, or shall have exposed the State to suffer for that cause a declaration of war, or if such hostilities shall have been the ground for reprisals against Spaniards, he shall be condemned to give public satisfaction for such offense, and to reclusion or imprisonment for a term of from two to six years, and shall pay a fine equal to one-quarter of the amount of damages he shall have occasioned, without prejudice to any further punishment which he may be liable to incur for the violence committed. If said hostilities shall have brought on an immediate declaration of war, or if such declaration shall have preceded the time of the trials, the offender shall be punished with transportation. But there is no law which touches the equipping or arming of ships of war for a belligerent. The decree relating to neutrality issued on the 1 Report of neutrality laws commission, p. 63, British appendix, vol. iii. 2 Appendix to United States Counter Case; p. 1062. occasion of the American civil war is set out in the British Appendix.1 It contains no prohibition relating to the equipping or arming of ships. It is stated, indeed, in the United States argument that the codigo penal, in article 151, forbids the expediting of "cruisers." Is it possible that the writers are ignorant that the term "destinare buques al corso" does not refer to cruisers but to privateers? Portugal has a corresponding provision in the one hundred and fortyeighth article, the Empire of Brazil in the eighty-third arti Law of Portugal cle, of the penal code of the respective countries. In the and Brazil. Brazilian code the offense consists in "committing, without the order or the authorization of the government, hostile acts against the subjects of another nation, so as to endanger peace or provoke reprisals." In the report presented to His Majesty the Emperor of Brazil on these laws by D. Silva Ferrão, set out in the later United States documents,3 there is the following very pertinent observation: Thus, it remains understood that if the fact in itself were not such as to give just reason for war, according to international right, it could never be reputed a crime even were it not authorized by the government, and were it eventually followed by war. Such a fact is not then a reason but a pretext for war. In this elaborate report, in which the effect of the foregoing law is fully discussed, I find no reference whatever to the equipment or arming of ships, as being within it. The government of Brazil, like that of France, upon the breaking out of the civil war, made special provision by law for the enforcing of neutrality. By a circular of the 1st of August, 1861, the presidents of the different provinces were instructed as follows: 1 The Confederate States have no recognized existence; but, having constituted a distinet government de facto, the imperial government cannot consider their naval armaments as acts of piracy, nor refuse them, with the necessary restrictions, the character of belligerents, which they have assumed. In conformity with this, Brazilian subjects are to abstain from all participation and aid in favor of one of the belligerents, and they must not take part in any acts which can be considered as hostile to one of the two parties, and contrary to the obligations of the neutrality. The exportation of warlike articles from the ports of the empire for the new Confederate States is absolutely prohibited, whether it is intended to be done under the Brazilian flag or that of another nation. The same trade in contraband of war must be forbidden to Brazilian ships, although they may be destined for the ports subject to the Government of the North American Union. No ship with the flag of one of the belligerents, and which may be employed in this war, or intended for it, can be provisioned, equipped, or armed in the ports of the empire; the furnishing of victuals and naval provisions indispensable for the continuation of the voyage not being included in this prohibition. No ship of war or privateer shall be allowed to enter and remain with prizes in our ports or bays more than twenty-four hours, except in case of forced arrival, and they shall in no way be allowed to dispose of the said prizes, or of objects coming from them. Thus, going far beyond other nations, Brazil prohibited not only the sale of ships, but all trade in articles contraband of war even in its own ports. Serious disputes having arisen in the course of the ensuing year between the Governments of the United States and Brazil on the subject of confederate cruisers received in ports of the empire, the Government, in order to prevent as far as possible the occasion of such troublesome remonstrances, published the still more stringent regulations con 1 British Appendix, vol. iii, p. 24. 2 Ibid., p. 68. 3 Appendix to the United States Counter Case, Part IV, p. 988. tained in the circular of the 23d of June, 1863, set out in the seventh volume of the appendix of the United States, regulations much more rigorous than those which have been adopted by any other nation.1 But, as these regulations relate entirely to the reception of belligerent vessels in Brazilian ports, it is unnecessary to dwell upon them here. Italy has in the one hundred and seventy-fourth and one hundred and seventy-fifth articles of the penal code, provisions correLaw of Italy. sponding to those of the French code:2 ART. 174. If any person whosoever shall, by acts not authorized by the government of the King, have exposed the state to a declaration of war, he shall be punished with banishment; if the war has actually occurred, he shall be punished with temporary penal servitude. ART. 175. If any person whosoever shall, by acts not approved of by the government of the King, have exposed the subjects of the kingdom to reprisals, he shall be punished with banishment even for a term of ten years or with imprisonment, without prejudice to any further penalty to which he may be liable on account of the acts he has committed. If the offender be a public functionary, he shall be punished with banishment. So stood the law at the time of the breaking out of the civil war between the Northern and Southern States of America. In the course of it the King of Italy, in an ordinance of the 6th of April, 1864, but, so far as I have been able to discover, then for the first time, adopted the regulations established three years before by the Emperor of the French. By article IV, "no Italian subject shall take commission from either belligerent power to arm ships for war, or accept letters of marque to cruise, or assist in any way in fitting out, arming, or preparing for war a vessel or privateer of the said belligerents."3 The naval code, which was published in 1866, in the chapter relating to the neutrality of the state toward foreign powers, (chap. vii,) has the following provisions: 3 In case of war between powers toward which the state remains neutral, privateers or vessels of war with prizes shall not be received into the harbors or roadsteads, except in cases of stress of weather. They will have to leave as soon as the danger has ceased. No ship of war or privateer belonging to a belligerent will be allowed to remain longer than twenty-four hours in a port, harbor, or roadstead of the state, or in the adjacent waters, even when alone, except in case of necessity, arising from bad weather, of shipwreck, or of an absence of the means necessary to carry on the navigation with safety. In no case will they be permitted during their stay in the port, harbor, or roadstead of the state to sell, exchange, or barter, or even give away any of the prizes (taken in war.) The ships of war of a friendly power, even when belligerent, are permitted to touch or even to remain in any harbor, port, or roadstead of the state on condition that the object of their mission be exclusively a scientific one. In no case can a belligerent ship avail itself of an Italian port for the purposes of war, or of obtaining arms and munitions. It shall not be able under the pretense of repairs to execute any alterations or other works designed to augment its warlike force. Nothing shall be furnished to vessels of war or to belligerent privateers beyond articles of food and commodities, and the actual means of repair necessary to the sustenance of their crews and the safety of their navigation. In the case in which vessels of war, whether privateers or merchantmen of the two belligerent nations, are both together in a port, harbor, or roadstead of the state, there shall be an interval of at least twenty-four hours between the successive departures of the vessels of one belligerent and those of the vessels of the other. This interval can be increased according to the circumstances brought before the maritime authorities of the place. The capture of prizes as well as any other act of hostility between two belligerent ships within the territorial waters or the adjacent waters of the islands of tire state will constitute a violation of territory. United States Documents, vol. vii, p. 110; British Appendix, vol. iii, p. 24. 2 American MS., Part IV, p. 949. 3 Report of Neutrality Laws Commission, p. 62, British Appendix, vol. iii. In all these countries, at the time to which our attention has to be directed, the question whether there had been a breach of the municipal law by a subject, turned on whether there had been a breach of neutrality, such as to expose the nation to war or reprisals. The equipping or arming of vessels for sale in the way of commerce does not come into question at all. It is, therefore, manifest that the municipal law, both of Great Britain and the United States, was far more stringent, though the punishment under the foreign law in case of a breach of the law was more severe, by reason of the greater gravity of the result, when a nation becomes exposed to war, or possibly actually involved in it. I next turn to the law of the northern nations on the subject of neutrality. The law of Demark relating to ships, with reference to neutrality, is fully set out in the third volume of the British Appendix.1 Law of Denmark. Denmark appears to be one of the very few countries that have gone the length of prohibiting to the subject the carriage of articles contraband of war. But though unusually strict in that respect, and minute as to its regulations in many others, the law contains no prohibition of the equipping or arming of ships of war for the purpose of sale. The Swedish ordonnance of April 8, 1854, while it expressly prohibits, by the eighth section, the arming or equipping of vessels for the purpose of privateering, is wholly without any prohibition against doing so with reference to ships armed or equipped for a belligerent state.2 Law of Sweden. The only article in the Russian code relating to neutrality is the two hundred and fifty-ninth, which is as follows:3 Law of Russia. If any Russian subject in time of peace shall by open force attack the inhabitants of a neighboring state or those of any other foreign country, and shall thereby subject his own country to the danger of a rupture with a friendly power, or even to an attack by such foreign subjects on the territory of Russia, for such a crime against international law, the offender and all those who participate voluntarily in his enterprise, with a knowledge of its objects and illegality, shall be sentenced to lose all their civil rights, and be condemned to hard labor in a fortress for a term of eight to ten years. With the exception of this article, says M. de Westmann, in answer to an official inquiry from the British government,3 "La législation russe ne renferme pas de dispositions ayant pour but d'empêcher sur le territoire de la Russie l'accomplissement d'actes dont les puissances belligérantes pourraient se plaindre comme d'une violation du principe de neutralité." There being thus no law in Russia relating to ships of war, and, as I have shown, none such in Prussia, I was surprised, after reference to the efficient regulations of the Dutch government, followed afterward by an assertion that by those regulations the construction of cruisers was prohibited, (which it is not,) to see it stated that "similar laws were to be found in Russia and in Prussia," as to the latter of which it is added, (in a friendly spirit no doubt,) that it "once had occasion to apply its laws to the acts of British agents." Laws as to priva But while the codes of so many maritime nations are silent as to the equipping or arming of ships of war in the way of trade, the codes of several-for example, Belgium, Denmark, Sweden-\ teers, prohibit the fitting out of privateers. Here again the argument of the United States falls into the same strange mistake as before. It rep 1 Report of Neutrality Laws Commission, p. 40, British Appendix, vol. iii. 3 Ibid., p. 65. |