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cessity, and then compensation shall be given, to be arranged beforehand if possible.

Recognition of the right of requisitioning neutral property in case of necessity is given in the Declaration of London, the Hague Conventions, Lieber's instructions of 1863, the naval instructions of 1898 and Stockton's naval war code of 1900 to 1904.121 In all of these cases, however, full payment for such requisitions is stated as an obligation.

CLAIMS OF THE NEUTRAL OWNER.

Having considered the claims which the captor state will offer as a basis for the condemnation of neutral prizes, the claims of the neutral owner involved may be considered. These claims may be grouped under the heads, (1) restitution, (2) compensation, (3) damages, (4) restoration.

(1) Restitution of the actual property has been recognized by the United States courts as the proper course in all cases where the government does not make good its claim to condem, nation. It is the logical corollary of the principle that title to property does not change until after the decision rendered by the prize court. If the court does not support the government's claim for condemnation, the original owner's title has never been lost and he can claim the goods.

(2) Restitution, however, may be impossible. The cargo may have been requisitioned or destroyed. If enemy goods on board are condemned, a practice now repudiated, the shipper can not get freight from the consignee. In such cases the courts have held compensation to be due the innocent neutral,122 but this is subject to important limitations. The seizure may have been justifiable because of suspicious circumstances, although there is no condemnation. Here losses caused by delay must be borne by the owner. Part of the cargo may have been destroyed through accident or the lawful exercise of belligerent rights by

121 Declaration of London, art. 29, 49-54; Hague Conventions, 1907, iv, annex, art. 52, v, art. 19; Instructions for the government of the Armies of the United States in the Field, by Francis Lieber, Apr. 24, 1863, Gen. Ord., War Dept., No. 100, printed, Naval War College, International Law Discussions, 1903, art. 14, 38; Naval Instructions, June 20, 1898, For. Rel., 1898, p. 780; Stockton's Naval War Code, art. 3, 6, 14, 50.

122 Declaration of London, 1909, art. 64; Hague Conventions, 1907, v, art. 19; Stockton's Naval War Code, art. 6, 14. The Nuestra Senora de Regla, 108, U. S. 92, (1882).

the captor. Here again the neutral suffers the loss of freight and goods.123

(3) However, restitution and compensation for actual goods seized may by no means cover the loss of the neutral. Even if the ship and cargo are intact the delay may have caused serious loss through fall of markets or breach of contract. The right of the neutral to damages in such cases has been recognized in the United States courts.124 Damages cannot lie against the government for more than the value of the prize under adjudication,125 but they may be had from a naval officer if the seizure was made without probable cause.126 The burden of proof, however, is always upon the neutral claimant.127 Except in a very clear case recovery is impossible.

(4) The claim for restoration differs from those just considered in that it is not brought by the party from whom the vessel was immediately seized, but from a former owner. It arises in cases of recapture from the enemy of a vessel or goods originally belonging to a neutral or national individual.128 The validity of the claim depends on whether or not title had passed to the enemy captor before recapture. If it had, the vessel is enemy property, if it had not it is neutral or national property, and must be restored. The different views which have been held on

123 The Antonia Johanna, 1 Wheat. 159, (1816).

124 The Siren, 7 Wall. 152, (1868); The Nuestra Senora de Regla, 108, U. S. 92; Slocum vs. Mayberry, 2 Wheat. 1; The Appollon, 9 Wheat. 377; The Lively, I Gall. 315.

125 In The Siren, 7 Wall. 152, (1868), a neutral vessel was run into and sunk by a captured prize. The court held the owner of the sunken vessel could recover to the value of the prize if subject to condemnation, but no more.

126 Del Col vs. Arnold, 3 Dall. 333, (1796); Little vs. Barreme, 2 Cranch 170, (1804); The Eleanor, 7 Wheat. 345; Jecker vs. Montgomery, 13 How. 498; The Thompson, 3 Wall. 155; The Dashing Wave, 5 Wall. 170; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 3 Wheat. 546. See Moore's Digest, 7:583-597.

127 The Marianna Flora, 11 Wheat. 1, (1826); Murray vs. The Charming Betsey, 2 Cranch 64; The Buena Ventura vs. U. S. 175 U. S. 384; The Thompson, 3 Wall. 185; The Dashing Wave, 5 Wall, 170. See Moore's Digest, 7:598.

128 The right of restoration has been derived from the Roman Jus Postliminii, although that applied to the rule whereby slaves and property on land returned to their former status after reconquest. See Hershey, op. cit., p. 439.

this subject assert that title to captured property vests, (1) immediately on seizure, (2) after twenty-four hours quiet possession, (3) after bringing "infra praesidia", (4) after condemnation by a prize court. All of these rules have been at different times acted on by courts and embodied in executive orders, 129 but the one at present established appears to be the last. The original owner's claim is good until the vessel has been condemned in an enemy prize court.130 A statute of 1800,131 continued by subsequent acts, required restoration to United States citizens where the property had not been condemned by competent authority, and to neutral subjects on a basis of reciprocity.132 The neutral can make good his claim only where the law of his country would allow restoration to a citizen of the United States. In any case a deduction of military salvage for the recaptors is allowed before restoration.

The measures taken to enforce the duty of the United States as a belligerent to abstain from illegally interfering with neutral commerce are found in the rules laid down for the courts in treaties, statutes, and executive orders and instructions, but pri

129 Vesting of title immediately on seizure was held to be the rule of international law during the Revolutionary War, (see the Resolution, Fed. Ct. of App. 1781, 2 Dall. 1, 4; McDonough vs. Dannery and the Ship Mary Ford, 3 Dall. 188, 1796) thus the right of restoration was denied altogether except by way of comity or express ordinance. An ordinance of congress, (Nov. 25, 1775, Journ. Cong., Ford. ed., 3;373) granted restoration of recaptures made before twenty-four hours possession, but the court held this could not apply where the enemy had sold the prize to a neutral, and in any case it applied only to United States citizens (The Resolution, Fed. Court. of Appeals, 1781, 2 Dall. 1, 4). The twenty-four hour rule was also recognized in several early treaties as to neutrals, where the captor was a privateer, although restoration was permitted even after twenty-four hours possession and before condemnation when the captor was a public vessel. (See treaties with Netherlands, 1782-1795; Malloy, p. 1243; Sweden, 1783-1798, revived 1827, p. 1730; Prussia, 17851796; 1799-1810, arts. 17, 21, pp. 1482, 1492).

130 Talbot vs. Seamans, 1 Cranch 1, (1801); Murray vs. The Charming Betsey, 2 Cranch 64, 121, (1804); The Star, 3 Wheat, 78, 86, (1818). Restoration even after condemnation has been allowed where the condemnation by the enemy prize court was clearly illegal. See The Resolution, 2 Dall. 1, (1781).

131 Act. Mch. 3, 1800, 2 stat. 16, June 26, 1812, 2 stat. 760; June 27, 1813, 2 stat. 793; June 30, 1864, 13 stat. 306, 314; rev. stat. sec. 4652.

132 The Schooner Adeline, 9 Cranch 244, see Moore's Digest, 7;521

marily in the principles of law to which prize courts have habitually adhered. These principles to which American prize courts have professed obedience are (1) the principle that title does not pass until decree of a prize court, (2) the law applied by prize courts is the law of nations, (3) statutes and orders should be interpreted if possible so as not to conflict with international law, (4) treaties, including law making international conventions, are to be applied as part of the law of the land. So long as these principles are adhered to by discreet courts the national duties of this character will undoubtedly be fulfilled. Yet on account of the inevitable tendency of even the most conscientious judges to be swayed by national partisanship the establishment of the international prize court with a final jurisdiction in cases involving neutrals would be a most important addition to these sanctions of neutral rights. The United States has signed the international prize court convention and the senate has recommended ratification. The same is true of the Declaration of the London naval conference designed to serve as a law to be applied by that court. It has therefore done the most in its power to add this sanction also for the enforcement of its duties as a belligerent.

CHAPTER XII. OBLIGATIONS OF PREVENTION.

INTRODUCTORY.

A belligerent state while acting in that capacity is for the most part represented by its army and navy. The part of international law defining the obligations of belligerents to neutrals therefore consists to a considerable extent of rules of conduct for such agencies of government. The land and naval forces may be controlled by municipal law. The obligations of prevention require a state to exercise this control and prevent infractions of international law by its armed representatives.

With the theory of territorial state sovereignty, neutral states have a right, in war as well as in peace, to exclusive control of their territory. As has been noted they are under an obligation to vindicate this right by interning armed forces of a belligerent violating their territory. The belligerent is under an equal obligation to respect this right by preventing such violations of neutral territory.

Although with a strict application of the theory of territorial sovereignty the state's interest in its citizens would vanish as soon as he leaves its frontiers, the actual law recognizes that states have a limited right to protect their citizens on the high seas and in foreign countries. Belligerents must respect this right and prevent injury to such persons and illegal destruction of their property. We may therefore classify the obligations here considered into those of preventing (1) violations of neutral territory, and (2) injury to neutral persons and property. Reserving this as a secondary classification, we will divide the obligations of prevention primarily into those relating to (1) acts by the land forces and (2) acts by naval forces.

ACTS BY LAND FORCES

The probability of land forces violating neutral territory or injuring neutral individuals is much less than in the case of naval forces, yet the United States has recognized by treaty the duty of preventing its land forces performing certain acts.

1For exceptions to this general statement see supra p. 45 et seq.

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