The Laws Of War, Affecting Commerce And Shipping Part 8

As it has been stated above, in cases of recapture, the material question is, whether there was such a capture made by the enemy, as to found a case of re-capture.

This is settled by the question whether the enemy have an effectual possession; by this is not meant the _complete_ and firm possession obtained by condemnation in a Court of Prize, but that effectual possession, that if not interrupted by recapture, would have enabled the captor to exercise rights of war over her. For this purpose it is not necessary that the possession should be _long_ maintained. The following are some examples of such effectual possession.

An English merchantman, separated from her convoy during a storm, was brought to by an enemy's lugger, which came up and told the master to stay by her till the storm was abated, when they would send a man on board; a British frigate coming up afterwards chased the lugger and took her, thus releasing the merchantman; the frigate was held ent.i.tled to salvage.[132]

But when a small English vessel, armed with two swivels, forced a privateer row-boat from Dunkirk to strike, but was not able to board her, because the English vessel has only three men, and no arms but the swivels,--the Frenchman being filled with a well armed crew; and subsequently, the row-boat was forced to put into the port of Ostend, then the port of an ally; this might not be a capture under the act, so much as it was under the general maritime law.

A vessel brought out of port, and which was in the power, though not in the actual occupation of the enemy, was thus rescued from considerable peril, was held to be recaptured.[133]

Similarly, with a vessel abandoned by the enemy, having possession of her, through the terror of an approaching force.[134]

There is no claim to Salvage where the property rescued was not in the possession of the enemy, or so nearly as to be certainly and inevitably under his grasp.

[Sidenote: Recapture of Property of Allies.]

England restores the Recaptured Property of her Allies, on the payment of salvage; but if instances can be given of British property retaken by them, and condemned as prize, the Court of Admiralty will determine their cases according to their own rule.[135]

[Sidenote: Recapture of Neutral Property.]

It is not the practice of modern nations to grant Salvage on the Recapture of Neutral Vessels; and upon this plain principle, that the liberation of a clear neutral from the hand of the enemy, is no essential service to him; for the enemy would be compelled by the tribunals of his own country, after he had carried the neutral into port, to release him with costs and damages, for the injurious seizure and detention. This proceeds on the supposition, that those tribunals would duly respect the law of nations; a presumption which, in the wars of civilized states, each belligerent is bound to entertain in their respective dealings with neutrals. But in the wild hostilities declared and practised by France in the Revolutionary War, there was a constant struggle between the governing powers of France and the maritime courts, which should most outrage the rights of neutral property; the liberation of neutral property out of their hands then came to be deemed, not only by Lord Stowell, but by the neutrals themselves, a substantial benefit; and salvage for such service was not only awarded, but thankfully paid.[136]

[Sidenote: Jus Postliminii.]

The rule by which things taken by the enemy are restored to their former owner, upon coming again under the power of the nation to which they formerly belonged, is termed _jus postliminii_, or the right of postliminy. Real property, which is easily identified, is more completely within the right of postliminy than moveable property, which is more transitory in its nature, and less easily recognized.

During war, the right of postliminy can only be claimed in the tribunals of the belligerent powers, and not in the courts of neutrals; for by a general law of nations, neutrals have no right to enquire into any captures, except such as are an infringement of their own neutrality.[137]

[Sidenote: Costs and Damages to Owners for invalid Seizures.]

It often happens that captains of ships of war and privateers make seizures of native or neutral vessels, under the impression that such vessels are occupied in illicit trade or other condemnatory acts. This may arise from error, and in such cases the vessel is restored to the owner by the prize court; but still there may be circ.u.mstances justifying the seizure, though not condemnation; and if condemnation is not granted, the owner sets up a claim for any damage that may have occurred to his vessel.

And the rule is, that where the capture is not justifiable, a captor is answerable for every damage.[138]

But if a seizure is justifiable, all that the law requires is that the captor shall be held responsible for _due diligence_; it is not enough that the captor should use as much caution as he would in his own affairs, the law requires that there should be no _deficiency of due diligence_.[139]

When property is confided by an owner to another person, the care that the owner would take of his own property may be a reasonable criterion of the care that he may expect his agent to take. But in the case of capture, there is no confidence reposed, nor any voluntary election of the person in whose care the property is left. It is a compulsory act of justifiable force, but still of such force as removes from the owner any responsibility for the imprudent conduct of the prize-master. Hence, where the prize-master refused to take a pilot, and the ship and cargo were lost, rest.i.tution in value was decreed.

CHAPTER III.

SECTION I.

_Neutrality_.

[Sidenote: Rights of Neutral Nations.]

It now only remains for me to place before the reader the Rights and Obligations of Neutral Nations, as they influence Commerce.

Neutral Nations are those who, in time of war, take no part in the contest, but remain common friends to both parties, without favouring the arms of the one to the prejudice of the other.[140]

Neutrality consists in--1st, Giving no a.s.sistance when there is no obligation to give it; nor voluntarily to furnish troops, arms, ammunition, or anything of direct use in war. 2ndly, In whatever does not relate to war, a neutral and impartial nation must not refuse to one of the parties (on account of his present quarrel) what she grants to the other.[141]

[Sidenote: Qualified Neutrality.]

These rules do not apply to engagements by treaty, to which the Neutral may be bound previous to war; as for example, an engagement to furnish one of the belligerent parties with a _limited_ succour in money, troops, ships, or munitions of war, or to open his ports to the armed vessels of his ally with his prizes.[142]

Neutrality, again, may be qualified by treaties (antecedent to war), to admit vessels of war, with their prizes, of one of the belligerent parties, into the neutral's ports, to the complete or limited exclusion of the other.

[Sidenote: Neutral Territory protected.]

The Rights of War can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. To make use of neutral territory for the _proximate_ purposes of war cannot be allowed, although it is to be understood that the prohibition does not extend to remote objects and uses, such as procuring provisions, and other innocent articles.[143]

The sanct.i.ty of a claim of territory is very high. When the fact is established, it overrules every other consideration; the property taken must be restored, notwithstanding that it belongs to the enemy; and if the captors should have erred wilfully, and not merely through ignorance, he would be subject to further punishment. It is however, a point on which foreign states are very likely to be misinformed and abused, by the interested representations of those who are anxious to catch at their protection. The claim of territory is, therefore, to be taken according to the letter of the law, and to be made out by clear and unimpeached evidence. The right of seizing the property of the enemy is a right which extends, generally speaking, _universally_, wherever that property is found. The protection of neutral territory is an exception only to the rule; it is not therefore to be considered disrespectful to any government that the fact, on which such claims are founded, should be accurately examined.[144]

The neutral territory is supposed to extend three English miles from the sh.o.r.e.[145]

[Sidenote: Property of Belligerents in Neutral Territory.]

But the general inviolability of neutral character goes further than merely the protection of neutral property. It protects the property of belligerents within the neutral territory. Thus, if the enemy be attacked, or any capture made under neutral protection, the neutral is bound to redress the injury, and effect rest.i.tution. As for example, in 1793, the English ship Grange was captured in Delaware Bay, by a French frigate, and upon due complaint, the American Government caused the British ship to be promptly restored. Similarly, in the case of the Anna, restoration was made of property captured by a British cruizer near the mouth of the Mississippi, and within the jurisdiction of the United States.[146]

An armed ship has no right to lie in a neutral harbour, in order to make it an habitual _station_ for her captures, as that would be a continuous direct infringement on neutral trade with the enemy; but if she is accidentally in a neutral port, and sees an enemy coming, she may go out and fight, or take her, beyond the range of neutral ground.[147] Nor ought captors to station themselves at the mouth of a neutral river for exercising the rights of war from that river, much less in the very river itself.[148]

The doctrine is carried to the extent that no use of a neutral territory for the purposes of war is to be permitted; this does not include _remote_ uses, such as procuring provisions and refreshments, and acts of that nature, which the law of nations universally tolerates; but that no _proximate_ acts of war, in any manner, are to be allowed to originate on neutral grounds;--thus a ship has no right to station herself in neutral waters, and then to send out her boats on hostile enterprises beyond the boundary. This is a _direct hostile use_ of the neutral territory, and many instances have occurred in which such an irregular use of neutral territory has been warmly resented. Nor can the neutral, in true consistency with his neutrality, permit such a course of war.[149]

[Sidenote: Vessels chased into a Neutral Port.]

Bynkershoek has maintained the anomalous principle, that vessels may be chased into a Neutral Territory, and there captured; but there is in reality no exception to the rule, that every voluntary entrance into a neutral territory, with hostile purposes, is absolutely unlawful.

But this restoration takes place only on the application of the neutral government whose territory has been thus violated, the neutrality alone being the ground of the invalidity of the capture.[150]

[Sidenote: Consent of Neutral State necessary.]

Though a belligerent vessel may not enter within neutral jurisdiction for hostile purposes, she may, consistently with a state of neutrality (unless prohibited by the neutral power), bring her prize into the neutral port and sell it there.

[Sidenote: Freedom of Neutral Commerce.]

A neutral has a right to pursue his accustomed commerce, and he may become the carrier of the enemy's goods, without being subject to confiscation of the ship, or of the neutral articles on board; though not without the risk of having the voyage interrupted by the seizure of the hostile property. If we find an enemy's effects on board a neutral ship, we seize them by right of war; but we are naturally bound to pay the freight to the master of the vessel, who is not to suffer by such seizure.[151]

The effects of neutrals found in an enemy's ship, are to be restored to the owners, against whom there is no right of confiscation,--but without allowance for detainder, decay, &c. Neutrals voluntarily expose themselves to these accidents by embarking their goods in a hostile ship.[152]

We have before mentioned that neutral ships do not afford protection to an enemy's property. It may be seized if found on board of a neutral vessel, _beyond the limits of the neutral jurisdiction_. This is a clear and well-settled principle of the Law of Nations.

When an enemy's ship, containing free goods, is taken, if the captor carries the goods to the port of destination, he is ent.i.tled to the freight. He stands in the place of the _owner of the ship_, and performs (by completing) the specific contract between the owner and charterer. But he _is not_ ent.i.tled, if he does _not_ proceed and perform the original voyage.[153] The specific contract is performed in the one case, and not in the other. But freight will be allowed to the captor, even though he does not carry the goods to the port of destination, if he carries them to his own country, and to the ports to which they would have been consigned, if not prevented by the regulations of the country of embarkation.[154]