« AnteriorContinuar »
are endangered. This consideration led, in the progress of the War of our Independence, to the formation of the celebrated confederacy of armed neutrality, a primary object of which was to assert the doctrine that free ships make free goods, except in the case of articles contraband of war-a doctrine which from the very commencement of our national being has been a cherished idea of the statesmen of this country. At one period or another every maritime power has by some solemn treaty stipulation recognized that principle, and it might have been hoped that it would come to be universally received and respected as a rule of international law. But the refusal of one power prevented this, and in the next great war which ensuedthat of the French Revolution—it failed to be respected among the belligerent states of Europe. Notwithstanding this, the principle is generally admitted to be a sound and salutary one, so much so that at the commencement of the existing war in Europe Great Britain and France announced their purpose to observe it for the present; not, however, as a recognized international right, but as a mere concession for the time being. The cooperation, however, of these two powerful maritime nations in the interest of neutral rights appeared to me to afford an occasion inviting and justifying on the part of the United States a renewed effort to make the doctrine in question a principle of international law, by means of special conventions between the several powers of Europe and America. Accordingly, a proposition embracing not only the rule that free ships make free goods, except contraband articles, but also the less contested one that neutral property other than contraband, though on board enemy's ships, shall be exempt from confiscation, has been submitted by this Government to those of Europe and America.
Russia acted promptly in this matter, and a convention was concluded between that country and the United States providing for the observance of the principles announced, not only as between themselves, but also as between them and all other nations which shall enter into like stipulations. None of the other powers have as yet taken final action on the subject. I am not aware, however, that any objection to the proposed stipulations has been made, but, on the contrary, they are acknowledged to be essential to the security of neutral commerce, and the only apparent obstacle to their general adoption is in the possibility that it may be encumbered by inadmissible conditions.
The King of the Two Sicilies has expressed to our minister at Naples his readiness to concur in our proposition relative to neutral rights and to enter into a convention on that subject. Annual Message of President Pierce, December 4, 1854, Richardson's Mes
sages of the Presidents, V. 275. On the outbreak of the War with Spain, a step was taken which legally fixed the position of the United States as an adherent of the rule of free ships free goods. By a telegraphic instruction to the diplomatic representatives of the United States, on April 22, 1898, the Department of State declared that, in the event of hostilities, the Government would act upon the second, third, and fourth rules of the Declaration of Paris as "recognized rules of international law."
This position was confirmed by a proclamation issued by the President on April 26, 1898, by which certain rules were promulgated for the observance of officers of the United States during the conflict. Of these, the first two were as follows:
“1. The neutral flag covers enemy's goods, with the exception of contraband of war.
“ 2. Neutral goods, not contraband of war, are not liable to confiscation under the enemy's flag.
Moore's Digest, Vol. VII, pp. 452, 453; Proclamations and Decrees issued
during the War with Spain, 77. Previously to the war with Russia in 1854, it was the British practice to detain any Neutral Vessel the cargo of which was Enemy property; but the right of so doing was waived during the war in question; and by the second clause of the Declaration of Paris of 1856, “the Neutral flag covers Enemy's goods, with the exception of Contraband of War.” It must, however, be remembered that “this Declaration is not binding, except between those Powers who have acceded, or shall accede, to it”; and that although most civilized States have acceded to the Declaration, the United States, Spain, Mexico, Venezuela, and Bolivia have not yet done so. In case therefore of a war, in which any of these last-mentioned States should be neutral, their vessels could not, as of right, claim the benefit of the Declaration; nor in case of a war in which any of these States should be belligerent, could the Declaration be invoked in favor of the immunity of cargoes belonging to their subjects on board neutral vessels. A commander must, however, in no case detain a neutral vessel for carriage of enemy's goods, not being contraband, without special instructions.
Holland, pp. 41 and 42. In exact accordance with the Declaration of Paris of the 4th (16th) April, 1856, the following rules are to be observed in applying these regulations:
(2) A neutral flag covers an enemy's goods, with the exception of contraband of war.
Russian Regulations, 1895, Art. 2. A neutral vessel carrying the goods of an enemy is, with her cargo, exempt from capture, except when carrying contraband of war or endeavoring to evade a blockade.
U. S. Naval War Code, 1900, Art. 19. The neutral flag covers enemy's goods, with the exception of contraband of war.
Russian Rules, 1904, Section 5. The rest of the cargo of a neutral ship, inclusive of enemy goods [except contraband and merchandise belonging to their owner] is not confiscable.
German Prize Rules, 1909, Art. 42. Likewise, cargo belonging to the enemy and found on board of vessels flying a neutral flag shall not be seized as far as it is not contraband of war.
Turkish Regulations, 1912, Chapter 1, Article 1.
Article 2, Declaration of Paris, is substantially identical with section 43, Austro-Hungarian Manual, 1913.
" It is possible that, in the pending negotiations for peace [July, 1797, between Great Britain and France] this principle of free ships making free goods may be adopted by all the great maritime powers; in which case, the United States will be among the first of the other powers to accede to it, and to observe it as a universal rule.”
Mr. Pickering, Secretary of State, to Mr. J. Q. Adams, July 17, 1797, 2
American State Papers, Foreign Relations, 250.
While “by the general usage of nations, independent of treaty stipulations, the property of an enemy is liable to capture in the vessel of a friend," it is not possible to justify this rule upon any sound principle of the law of nations, for by that law the belligerent party has no right to pursue or attack his enemy without the jurisdiction of either of them. The high seas are a general jurisdiction common to all, qualified by a special jurisdiction of each nation over its own vessels.
This is universally admitted in time of peace. War gives the belligerent a right to pursue his enemy within the jurisdiction common to both, but not into the special jurisdiction of the neutral power."
Mr. Adams, Secretary of State, to Mr. Anderson, Minister to Colombia,
May 27, 1823, Moore's Digest, Volume VII, pp. 444, 445.
“The necessity, however, for urging either the treaty with Colombia or that of 1795 with Spain as a justification of the demand in this case will be obviated if we reflect that the principle of the law of nations violated by the capture of the Morris [the principle that free ships make free goods] is one the soundness whereof has always been contended for by the United States and of which no doubt is now entertained."
Mr. Forsyth, Secretary of State, to Mr. Semple, chargé d'affaires to New
Granada, February 12, 1839, Moore's Digest, Volume VII, p. 447.
“ With respect to the protection of the vessel and cargo by the flag which waves over them, the United States look upon that principle as established, and they maintain that belligerent property, on board a neutral ship, is not liable to capture; and from existing indications they hope to receive the general concurrence of all commercial powers in this position.
It is not necessary that a neutral power should have announced its adherence to this declaration [of Paris of 1856] in order to entitle its vessels to the immunity promised. Because the privilege of being protected is guaranteed to belligerents coparties to that memorable act, and protects their property from capture wherever it is found on board a vessel belonging to a nation not engaged in hostilities,
such an immunity withheld from this country would in fact operate as a premium, granted to other nations, and would be almost destructive of that important branch of our national industry, the carrying trade.”
Mr. Cass, Secretary of State, to Mr. Mason, Minister to France, June 27,
1859, Moore's Digest, Volume VII, p. 450.
The “Atlas," 3 C. Rob. 299. In this case tobacco belonging to a Spaniard, captured on board an American vessel, was condemned as enemy's goods. Contra. The “Nereide,” 9 Cranch, 288. The Court said: “
the propositions that the neutral flag constitutes no protection to enemy property
are necessarily admitted." Darby v. T'he brig“ Erstern," 2 Dallas, 34. In this case the vessel was owned by neutrals, but the cargo was enemy owned, and the shipowners supplied the vessel with false and colorable papers, assumed the ownership of the cargo, and sent it to a port which had been captured from the enemy. At the time of capture, a capitulation took place by which commercial intercourse between that port and the enemy was prohibited and the voyage of the vessel in question was the outcome of a plan between the shipowners and the cargo owners to circumvent that prohibition.
Held, that the ship and cargo was subject to condemnation.
The Court said: “If the Erstern had been employed in a fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enemy, could not be prize; because Congress had said, by their ordinance, that the rights of neutrality shall extend protection to such effects and goods of an enemy."
Schwartz v. Insurance Co. of North America, 3 Wasă. (C.C.) 117. In this case the court said that international law does not prohibit the carrying of enemies' goods in neutral vessels, and indeed holds that the vessel is entitled to freight upon the condemnation of the goods, but that if a neutral endeavors, by false appearances, to cover the property of a belligerent from the lawful seizure of the enemy, such conduct identifies the neutral with the belligerent whom he thus endeavors to protect, and is a fraud upon the neutrality of his own government and the rights of the belligerent.
The “Allanton,” Russian and Japanese Prize Cases, vol. 1, p. 1. The Russian Supreme Court held that the cargo (coal) of a British vessel, shipped from a Japanese port to Singapore, was not subject to condemnation, even if it was considered to belong to a Japanese company, since
a neutral flag covers an enemy cargo, provided that it is not contraband, and coal could only be recognized as contraband if it was being conveyed to the enemy or to an enemy port, which was not so in the present case."
NEUTRAL GOODS ON ENEMY'S VESSEL.
Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag.
Article 3, Declaration of Paris.
It is likewise agreed that whatever shall be found to be laden by the subjects of either of the two contracting parties, on a ship belonging to the enemies of the other party, the whole effects, although not of the number of those declared contraband, shall be confiscated as if they belonged to the enemy. Treaty of Amity and Commerce concluded between the United States and
Sweden, April 3, 1783, Article XIV. If any citizens or subjects, with their effects, belonging to either party, shall be found on board a prize vessel taken from an enemy by the other party, such citizens or subjects shall be liberated immediately, and their effects so captured shall be restored to their lawful owners, or their agents. Treaty of Peace and Amity concluded between the United States and
Tripoli, June 4, 1805, Article V. If either of the parties shall be at war with any nation whatever, and take a prize belonging to that nation, and there shall be found on board subjects or effects belonging to either of the parties, the subjects shall be set at liberty, and the effects returned to the owners. Treaty of Peace and Friendship, Concluded between the United States and
Morocco, September 16, 1836, Article III. Contra.
It is likewise agreed that, in the case where the neutral flag of one of the contracting parties shall protect the property of the enemies of the other, by virtue of the above stipulation, it shall always be understood that the neutral property found on board such enemy's vessels shall be held and considered as enemy's property, and as such shall be liable to detention and confiscation, except such property as was put on board such vessel before the declaration of war, or even afterwards, if it were done without the knowledge of it; but the contracting parties agree that, two months having elapsed after the declaration of war, their citizens shall not plead ignorance thereof. On the contrary, if the flag of the neutral does not protect the enemy's property, in that case the goods and merchandise of the neutral embarked on such enemy's ship shall be free. Treaty of Peace, Amity, Navigation and Commerce concluded between the
United States and New Granada (Colombia), December 12, 1846, Article XVI.