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The justice of this doctrine (that upon the neutral lies the burden of proving that his new trade is harmless to the belligerent; and if he fails in this proof, the support which he affords to the enemy may looked upon as intentionally given) was strongly contested by the American government; it has since remained a subject of lively debate in the writings of publicists; and it cannot be said to have been sanctioned by sufficient usage to render such debate unnecessary. Nor is it easy to see that the question has necessarily lost its importance to the degree which is sometimes thought. The more widely the doctrine is acted upon that enemy's goods are protected by a neutral vessel, the more necessary it is to determine whether it ought to be governed in a particular case by exceptional considerations.
The arguments which may be urged on behalf of the right of neutrals to seize every occasion of extending their general commerce do not seem to be susceptible of a ready answer. Neutrals are in no way privy to the reasons which may actuate a belligerent in throwing open a trade which he has previously been unwilling to share with them; they can be no more bound to enquire into his objects in offering it to them than they are bound to ask what it is proposed to do with the guns which are bought in their markets. The merchandise which they carry is in itself innocent, or is rendered so by being put into their ships; in the case of coasting trade they take it to ports into which they can carry like merchandise brought fronı a neutral harbour; and the obstructing belligerent is unable to justify his prohibition by any military strength which it confers upon him. On the one hand the neutral is free from all belligerent complicity with a party to the war; on the other the established restrictive usages afford no analogy which can be extended to cover the particular case.
Hall, pp. 660-663.
In the wars growing out of the French Revolution, in which the rule (of 1756] was revived, American vessels, which had then come upon the seas as neutral carriers, sought to avoid its application by first bringing the cargo to the United States and thence carrying it on to its European or colonial destination, as the case might be. To thwart this mode of prosecuting the trade, Sir William Scott applied what was called the doctrine of continuous voyages.
Moore's Digest, vol, vii, p. 383; The Polly, 2 C. Rob., 361; The Martin,
5 C. Rob., 365. It is still doubtful what would be the fate of neutral ships engaged in a trade which before the war had been reserved by the enemy for his own merchantmen, but was thrown open by his government during the war or in anticipation of it. Great Britain has, under what is called her Rule of War of 1750, claimed the right to regard such vessels as enemy vessels, and at the Naval Conference she supported a German proposal to insert in the Declaration of London a rule embodying her view. The attempt was, however, foiled by the strong opposition of the United States and several other powers. The matter is, therefore, left open. It may in the end be decided 55565-18
by the International Prize Court, or it may be settled at the next Hague Conference. A reasonable compromise might be found in a rule that permitted such a trade to neutrals if it were thrown open generally and for all future time, but forbade it if the permission were confined to the vessels of one or more privileged countries or limited in time to the duration of the war then raging.
Lawrence, pp. 382, 383. According to British practice---adopted by America and Japanneutral merchantmen likewise acquire enemy character by violating the so-called rule of 1756, in case they engage in time of war in a trade which the enemy prior to the war reserved exclusively for merchantmen sailing under his own flag. The Declaration of London has neither rejected nor accepted this rule of 1756, for article 57 stipulates expressly that the case where a neutral vessel is engaged in a trade which is closed in time of peace, remains unsettled. It would, therefore, according to article 7 of Convention XII, of the Second Peace Conference, be the task of the proposed International Prize Court to settle this point.
Oppenheim, vol. 2, p. 114. Under what is known as the “Rule of the War of 1756," it was held, down to the early years of the present century, that Neutral Vessels were liable to Detention for engaging in a trade which in time of peace was closed to Vessels other than those of the Enemy State. The colonial and coasting trades, at one time customarily closed to foreign Vessels, are, however, now so generally open to the Ships of all Xations, that the Rule in question has perhaps lost its practical importance. Its operation would also be interfered with by the second clause in the Declaration of Paris of 1856, to the effect that "the Neutral flag covers Enemy's goods, with the exception of Contraband of War.” In any case, the Rule is not to be enforced by Commanders of British cruisers without special instructions.
Holland, p. 41.
A neutral ship is to be treated as an enemy ship further when it
(a) engages in a voyage which is permitted only after the outbreak of the war, or within two months before.
German Prize Rules, 1909, Article 16.
“With respect to the particular rights to be placed under the guaranty of a general treaty of peace, it will naturally occur that the one having the first place in the wishes of the United States is that which is at present violated by the British principle subjecting to capture every trade opened by a belligerent to a neutral nation during war.
It will be recollected that this right stands foremost in the list comprised in the two plans of armed neutrality in 1780 and 1800. In general it is to be understood that the United States are friendly to the principles of those conventions, and would see with pleasures all of them effectually and permanently recognized as principles of the established law of nations."
Mr. Madison, Secretary of State, to Mr. Armstrong, minister to France,
March 14, 1806, Moore's Digest, Vol. VII, p. 387.
The principle that “a trade opened to neutrals by a nation at war, on account of the war, is unlawful," has no foundation in the law of nations.
Mr. Madison, Secretary of State, report of January 25, 1806, Moore's Digest,
vol. vii, p. 1107. The rights of a neutral to carry on a commercial intercourse with every part of the dominions of a belligerent permitted by the laws of the country (with the exception of blockaded ports and contraband of war) was believed to have been decided between Great Britain and the United States by the sentence of their commissioners mutually appointed to decide on that and other questions of difference between the two nations, and by the actual payment of the damages awarded by them against Great Britain for the infractions of that right. When, therefore, it was perceived that the same principle was revived with others more novel and extending the injury, instructions were given to the minister plenipotentiary of the United States at the court of London, and remonstrances duly made by him on this subject, as will appear by documents transmitted herewith. These were followed by a partial and temporary suspension only, without any disavowal of the principle. He has, therefore, been instructed to urge this subject anew, to bring it more fully to the bar of reason, and to insist on rights too evident and too important to be surrendered. In the meantime the evil is proceeding under adjudications founded on the principle which is denied. . Under these circumstances the subject presents itself for the consideration of Congress.
President Jefferson, special message, January 17, 1806, Richardson's Mes
sages, I, 395. “ The declaration which Her Britannic Majesty's Government proposes to issue is distinct in interdicting to neutrals the coasting and colonial trade with the belligerent, if not enjoyed by them previous to the war. In regard to this trade, you are aware that Great Britain asserted principles, in the wars resulting from the French revolution, before she issued her obnoxious orders in council, which this country held to be in violation of the law of nations. Should she still adhere to those principles in the coming conflict in Europe, and have occasion to apply them to our commerce, they will be seriously controverted by the United States, and may disturb our friendly relations with her and her allied belligerents. The liberal spirit she has indicated in respect to the cargoes under a neutral flag, and neutral property which may be found on board of enemies' ships, gives an implied assurance that she will not attempt again to assert belligerent rights, which are not well sustained by the well-settled principles of international law." Mr. Marcy, Secretary of State, to Mr. Buchanan, April 13, 1854, H. Ex. Doc.
03, 33 Co 1 sess., 12, 13, Moore's Digest, vol. vii, p. 1108. The “Ann Green,” 1 Gallison, 274.—The court said that where a neutral is engaged in a trade, which is in time of peace exclusively confined to the subjects of a country, and forbidden to all others, such a trade is so purely national, that it must follow the situation of the country, as to peace or war, and be deemed hostile or neutral accordingly; and that, in such trade, it is immaterial whether the shipment be made in time of peace or war.
V'asse v. Bali, 2 Dallas, 270.-In this case the court maintained that there was no violation of neutrality in the trading by an American vessel with French islands, which was unlawful before the existing war between France and England. The Emanuel, 1 C. Rob., 296.-The court said: "*
in the ordinary state of affairs, no indulgence is generally permitted to the ships of most other countries to carry on the coasting trade. I think therefore the onus probandi does at least lie on that side and always makes it necessary to be shown by the claimants, that such a trade was not a mere indulgence, and a temporary relaxation of the coasting system of the state in question; but that it was a common and ordinary trade, open to the ships of any country whatever
The “ Immanuel," 2 C. Rob., 186.- This was the case of a Hamburg ship, seized during war between England and France, because it was engaged in the trade between France and a French Colony, a trade which apparently was closed to neutrals in time of peace, but had been opened to them after the breaking out of war.
Held that neutrals had no right to engage in such trade.
The “ William,” 5 C. Rob., 385.—Held that an attempt, by touching at a neutral port, to avoid the “Rule of 1756" forbidding neutrals to engage in the direct trade between the enemy and its colonies, did not make the voyage lawful.
The “ Montara,” Russian and Japanese Prize Cases, vol. 2, p. 403.This was the case of a neutral ship which was chartered by a Russian company for the purpose of carrying on a trade which was closed in time of peace to foreign vessels. It appeared that upon the outbreak of war this company and one other company had been allowed by the Russian Government to charter foreign vessels to engage in the trade in question.
Held that the above facts were sufficient to constitute the vessel a ship sailing with a special license from the enemy. Ship and cargo were condemned.
NATIONAL CONVOY OF NEUTRAL VESSELS AS AFFECTING SEARCH AND CAPTURE.
Neutral vessels under national convoy are exempt from
search. The commander of a convoy gives, in writing, at the request of the commander of a belligerent warship, all information as 'to the character of the vessels and their
cargoes, which could be obtained by search. If the commander of the belligerent warship has reason to
suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to him. In such a case it is for the commander of the convoy alone to investigate the matter. He must record the result of such investigation in a report, of which a copy is handed to the officer of the warship. If, in the opinion of the commander of the convoy, the facts shown in the report justify the capture of one or more vessels, the protection of the convoy must be withdrawn from such vessels.-Declaration of London, Articles 61 and 62.
The principle laid down is simple; a neutral vessel under the convoy of a warship of her own nationality is exempt from search. The reason for this rule is that the belligerent cruiser ought to be able to find in the assurances of the commander of the convoy as good a guaranty as would be afforded by the exercise of the right of search itself; in fact, she can not call in question the assurances given by the official representative of a neutral government without displaying a lack of international courtesy. If neutral governments allow belligerents to search vessels sailing under their flag, it is because they do not wish to be responsible for the supervision of such vessels, and therefore allow belligerents to protect themselves. The situation is altered when a neutral government consents to undertake that responsibility; the right of search has no longer the same importance.
But it follows from the explanation of the rule respecting convoy that the neutral government undertakes to afford the belligerents every guaranty that the vessels convoyed shall not take advantage of the protection accorded to them in order to do anything inconsistent with their neutrality, as, for example, to carry contraband, render unneutral service to the belligerent, or attempt to break blockade. There is need, therefore, that a genuine supervision should be exercised from the outset over the vessels which are to be convoyed; and that supervision must be continued throughout the voyage. The government must act with vigilance so as to prevent all abuse of the right of convoy, and must give to the officer who is put in command of a convoy precise instructions to this effect.
A belligerent cruiser encounters a convoy; she communicates with the commander of the convoy, who must, at her request, give in writ