That the usage which is in course of growth extends the duties of a neutral state into new ground, territoire neutre, non pas sur commande d'un belligérant ou par suite d'un traité ostensible ou dissimulé avec ce belligérant, mais en vue d'un dessein quelconque, soit de navigation commerciale, soit tout autre, et que ce navire, déjà par lui-même propre à la guerre ou de nature à être converti à cet usage, une fois sorti des ports de la nation neutre, soit vendu, dans le cours de sa navigation, occasionellement, à l'un des belligérants, et se mette à naviguer en destination directe pour ce belligérant; un tel navire, dans de telles circonstances, tombe uniquement sous le coup des règles relatives à la contrebande de guerre. . . . Mais la situation change si l'on suppose qu'il s'agisse de bâtiments de guerre construits, armés, ou équipés sur un territoire neutre pour le compte d'un belligérant, par suite d'arrangement pris à l'avance avec lui, sous la forme d'un contrat commercial quel conque-vente-commission, louage d'industrie ou de travail; que les arrangements aient été pris ostensiblement, ou qu'ils le soient d'une manière secrète ou déguisée; car la loyauté est une condition essentielle dans la solution des difficultés internationales, et sous le couvert des fausses apparences il faut toujours aller au fond des choses. ... 'Les publicistes en crédit ne font aucun doute pour ce qui concerne l'armement et l'équipement dans un port neutre de bâtiments de guerre destinés à accroître les forces des belligérants. Ils s'accordent pour reconnaître l'illégalité de ces armements ou équipements, comme une infraction de la part de l'Etat neutre qui les tolérerait aux devoirs de la neutralité. 'N'est-il pas évident qu'il en doit être de même à fortiori de la construction de pareils bâtiments, lorsque cette construction a lieu dans les conditions prévues en notre seconde hypothèse?' vol. ii. 208-10. It does not appear to me to be quite clear at what conclusions MM. Heffter and Bluntschli arrive; and I cannot but think that both they and M. Ortolan struggle, under the guidance of their wishes, to reconcile what they feel to be existing law with what I am willing to admit approximates to the probable future rule. I do not, however, think that it would be convenient to adopt a usage entirely corresponding to their language. It implies a principle which is more frankly expressed by Mr. Dana in a note to Wheaton's Elements, § 439. He says: Our rules do not interfere with bona fide commercial dealings in contraband of war. An American merchant may build and fully arm a vessel, and provide her with stores, and offer her for sale in our own market. If he does any acts as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. He may, without violating our law, send out such a vessel, so equipped, under the flag and papers of his own country, with no more force is, I think, plain; but it does not follow that the extension is either unhealthy or unnecessary. Though an armed ship does not differ in its nature from other articles merely contraband of war, it does differ from all in the degree in which it approaches to a completed means of attacking an enemy. The addition of a few trained men to its equipage, and of as much ammunition as can be carried in a small coasting vessel, adapts it for immediate use as part of an organised whole of which it is the most important element. The same cannot be said of any other article of contraband. It is neither to be expected nor wished that belligerent nations should be patient of the injury which would be inflicted upon them by the supply of armed vessels to their enemies asmere contraband of war. But it is much to be hoped that the rule will not retain the indefiniteness which attaches to it in its of crew friendly nation? The latter we 6 to It is eminently inadvisable in matters which may lead to international controversy adopt as the test of the character of an action anything so indeterminate as to be often scarcely traceable.' No intent other than that which is inferred from acts of a broadly marked character can be safely so used, and such intent as is required for the fine distinctions of all the above writers, with the exception of M. Calvo, would certainly be hidden under the most elaborate precautions, and would be in the highest degree difficult of proof. If taken as a test of legitimateness in trade, it would either be nugatory or unjust in its consequences to the neutral state. Within equipment what limits of vessels should be forbidden present inchoate form. In planting their doctrine upon the foundation of the intent of the neutral trader, or of the agent of the offending belligerent in the neutral country, instead of upon the character of the ship itself, publicists appear to me hardly to have realised how unimportant is the advantage which is given to the injured belligerent in comparison with the grave evils of an indefinite increase in the number of international controversies. Experts are perfectly able to distinguish vessels built primarily for warlike use; there would therefore be little practical difficulty in preventing their exit from neutral ports, and there is no reason for relieving a neutral government from a duty which it can easily perform. But it is otherwise with many vessels primarily fitted for commerce. Perhaps few fast ships are altogether incapable of being so used as to inflict damage upon trade; and there are at least two classes of vessels which on the principles urged by the government of the United States in the case of the Georgia might fix a neutral state with international responsibility in spite of the exercise by it of the utmost vigilance. Mail steamers of large size are fitted by their strength and build to receive without special adaptation one or two guns of sufficient calibre to render the ships carrying them dangerous cruisers against merchantmen; and steam yachts and vessels of the type of the packets plying between Dover and Calais are well suited for use as torpedo vessels. These vessels, though of distinct character in their more marked forms, melt insensibly into other types, and it would be impossible to lay down a rule under which they could be prevented from being sold to a belligerent and transformed into constituent parts of an expedition immediately outside neutral waters without paralysing the whole shipbuilding and ship-selling trade of the neutral country. neutral 1. cap § 26. The jurisdiction of a sovereign being ex- Effect of clusive, upon him necessarily depends the liberty of sovereignthe person and the ownership of property within his ty upon, dominions. If anyone is retained in captivity there, tured he is identified with the act; and therefore, as it has persons. always been held, with obvious reason, that it is continuation of hostilities to bring prisoners of war into neutral territory, its sovereign cannot allow subjects of a state with which he is in amity to remain deprived of their freedom in places under his control.1 If they touch his soil they cease to be prisoners.2 An exception from this general rule is made in the case of prisoners on board a commissioned ship of a belligerent power, which in virtue of a special privilege is looked upon as forming part of the territory of its sovereign even while lying within neutral waters.3 It is not easy to see why property should not be 2. pro 1 Vattel, lib. iii. chap. vii. § 132; Lord Stowell, in The Twee Gebroeders, iii Rob. 165; Pando, tit. iii. sect. vii. § 192; Bluntschli, & 785. 2 The Neutrality Ordinance of Austria of 1803 says: 'Il ne sera pas permis aux Puissances belligérantes de mettre à terre dans nos ports, etc., aucun individu comme prisonnier de guerre: car aussitôt que de tels prisonniers auraient mis le pied sur le territoire d'un souverain neutre ou ami de leur gouvernement ils devront être regardés comme libres, et toutes les autorités civiles et militaires leur devront, sous ce rapport, protection et assistance." De Martens, Rec. viii. 111; and the Neutrality Edict of Venice, 1779, Art. xx. ib. iii. 84. 3 It is a principle of public law that national ships of war entering the port of a friendly power open for their reception, are to be considered as excepted by the consent of that power from its jurisdiction.' Č. J. Marshall in Exchange v. McFaddon, vii Cranch, 145. The reasons for this immunity from local jurisdiction are stated at large in the above judgment, by Ortolan, i. 190, and by Calvo, §371-3, and § 538. The principle is applicable to privateers, L'Invincible, i Wheaton, 252; and according to Hautefeuille (tit. vi. chap. ii. sect. 3), and Calvo (§ 265) it so far extends to prizes that prisoners may be retained on board of them. perty. subject to the principle which governs the treatment of persons. It is in fact admitted in the case of that which has come into the possession of a belligerent by way of booty, whenever the custom of his nation requires not merely capture, but continued possession during some period, whether definite or not, in order to give him a firm title.1 But the practice with respect to property taken at sea has till lately been anomalous. The right of the captor to it is only complete after judgment is given by a prize court. If therefore the belligerent, without protection from such judgment, carries his prize into neutral waters, he brings there property which does not yet belong to him; in other words, he continues the act of war through which it has come into his power. Indirectly also he is militarily strengthened by his use of the neutral territory; he deposits an encumbrance, and by recovering the prize crew becomes free to act with his whole force. Nevertheless, although the neutral may permit or forbid the entry of prizes as he thinks best, the belligerent is held, until express prohibition, to have the privilege not only of placing his prizes within the security of a neutral harbour, but of keeping them there while the suit for their condemnation is being prosecuted in the appropriate court. Most writers think that he is also justified by usage in selling them at the neutral port after condemnation; and, as they then undoubtedly belong 1 Vattel, Lord Stowell, and Bluntschli, loc. cit. On Booty, and the time at which property in it vests, see Wheaton, Elem. pt. iv. chap. ii. § 12, and Heffter, § 136. 2 An attentive review of all the cases decided in the courts of England and the North American United States during the last war (1793-1815) leads to the conclusion that the condemnation of a capture by a regular prize court, sitting in the country of the belligerent, of a prize lying at the time of the sentence in a neutral port, is irregular, but clearly valid.' This is also the law in France. Phillimore, iii. § 379. |