International Law Part 56

104. +Personal Property of Enemy Subjects+

_Brown_ v. _United States_, 8 Cr. 110

It was held that British property within the territory of the United States at the beginning of hostilities with Great Britain could not be condemned without a legislative act, and that the act of Congress declaring war was not such an act. The property in question was the cargo of an American s.h.i.+p and was seized as enemy's property in 1813, nearly a year after it had been discharged from the s.h.i.+p.

110. +Privateers+

_United States_ v. _Baker_, 5 Blatchford, 6

This was an indictment in 1861 against Baker, the master of a private armed schooner, and a part of the officers and crew for piracy. They claimed to have acted under a commission from Jefferson Davis, President of the Confederate States of America. Nelson J. charged the jury at length; but they failed to agree on a verdict.

112. +Capture and Ransom+

_The Grotius_, 9 Cr. 368

The question in this case, which was heard in 1815, was whether the capture was valid. The master, the mate, and two of the seamen swore that they did not consider the s.h.i.+p to have been seized as prize, and that the young man who was put on board by the captain of the privateer was received and considered as a pa.s.senger during the residue of the voyage. It was held that the validity of the capture of the vessel as a prize of war was sufficiently established by the evidence.

113. +Postliminium+

_The Two Friends_, 1 C. Rob. 271

An American s.h.i.+p was taken by the French in 1799 when the relations between France and America were strained. She was recaptured by the crew, some of whom were British seamen. They were awarded salvage.

_The Santa Cruz_, 1 C. Rob. 49

A Portuguese vessel was taken by the French in 1796 and retaken by English cruisers a few days later. It was held that the law of England, on recapture of property of allies, is the law of reciprocity; it adopts the rule of the country to which the claimant belongs.

115. +Non-hostile Relations of Belligerents+

_The Venus_, 4 C. Rob. 355

A British vessel went to Ma.r.s.eilles, under cartel, for the exchange of prisoners, and there took on board a cargo and was stranded and captured on a voyage to Port Mahon. Held that the penalty was confiscation.

_The Sea Lion_, 5 Wall. 630

This case held that a license from a "Special Agent of the Treasury Department and Acting Collector of Customs" in 1863 to bring cotton "from beyond the United States military lines" had no warrant from the Treasury Regulations prescribed by the President conformably to the act of 13th July, 1861.

119. +Termination of War by Treaty of Peace+

_The Schooner Sophie_, 6 C. Rob. 138

A British s.h.i.+p, having been captured by the French, was condemned in 1799 by a French Consular Court in Norway. Other proceedings were afterwards had, on former evidence in the case, in the regular Court of Prize in Paris and the sentence of the Consular Court was affirmed. Sir William Scott said, "I am of opinion, therefore, that the intervention of peace has put a total end to the claim of the British proprietor, and that it is no longer competent to him to look back to the enemy's t.i.tle, either in his own possession, or in the hands of neutral purchasers."

126. +Neutral Territorial Jurisdiction+

_The Caroline_

_People v. McLeod_, 25 Wendell, 483

During the Canadian rebellion of 1837-1838, a force was sent in the night by the British commander to capture the steamer _Caroline_, owned by an American. The steamer was engaged in transporting war material and men to Navy Island, in the Niagara River, through which runs the line separating the British from the American possessions. The vessel not being in her usual place in Canadian waters, the force went into American jurisdiction and seized and destroyed her. One Durfee, an American, was killed. To the American a.s.sertion that the proceeding was an outrage, the British Government replied that the insurgents had used American ground as the starting-point of their expeditions and as their base of supplies. The controversy was renewed by the arrest, in 1841, in the state of New York, of one McLeod, and his indictment for the murder of Durfee. Great Britain demanded the release of McLeod, stating that as he was an agent of the British Government engaged at the time in a public duty, he could not be held amenable to the laws of any foreign jurisdiction. Mr. Webster, then Secretary of State, admitted the correctness of the British contention, but seemed powerless to obtain the release of McLeod, on account of the inherent weakness of the Federal system.[503] The Supreme Court of the state of New York held in _People_ v. _McLeod_, that McLeod could be proceeded against individually on an indictment for arson and murder, though his acts had been subsequently averred by the British Government. This view was generally condemned by jurists;[504] but the difficulty soon ended by the acquittal of McLeod. The British Government's contention was that the seizure of the _Caroline_ was excusable on the ground stated by Mr.

Webster himself as "a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation."

_The Twee Gebroeders_, 3 C. Rob. 162

This case holds that a s.h.i.+p within three miles of neutral territory can not send boats beyond the line of division for the purpose of capturing enemy vessels.

129. +Positive Obligations of a Neutral State+

_The Alabama Cases_

Up to the period of the American civil war the opinion obtained among many that a vessel of war might be sent to sea from a neutral port with the sole liability to capture as legitimate contraband, with the exception that, if she was ready to go in condition for immediate warlike use, it was the duty of the neutral to prevent her departure. In 1863 during the American civil war this view was practically taken by the British court in the case of the _Alexandra_;[505] but the vessel after her release was taken on a new complaint at Na.s.sau and held until after the end of the war. Lawrence says that the att.i.tude of the British Government in regard to this vessel, its purchase in 1863 of two iron-clad rams of the Messrs. Laird for the navy, the construction, destination, and intended departure of which occasioned the now famous correspondence between Lord Russell and Mr. Adams, the detention of the _Pampero_, which was seized in the Clyde, until the end of the American civil war, and the preventing the sale of "Anglo-Chinese gunboats against the advice of its own law officers," indicated that that government "had uneasy doubts as to the validity of the doctrine laid down in their law-courts and maintained in their dispatches."[506] This doctrine would admit of a s.h.i.+p of war going to sea from a neutral port without arms, which she might receive on the high seas from another vessel which had sailed from the same port. For example, the _Alabama_ left Liverpool in 1862 ready for warlike use, but without warlike equipment. This and her crew were received on the high seas from other vessels which had cleared from Liverpool; and her career as a Confederate cruiser then began. The cases of the _Florida_, the _Georgia_, and the _Shenandoah_ were almost identical. The spoliations committed by these vessels led to the _Alabama_ claims, the British maintaining that the American contention that it was the duty of a neutral to prevent the departure of all vessels that could reasonably be expected as about to be used for warlike purposes was unsound.[507]

The _Alabama_ case and kindred cases have produced much speculation as to the establishment of a true and correct rule. After the enactment of the American neutrality statutes in 1818, there were numerous decisions of the United States courts to the effect that the intent was to govern, that is, if the purpose was to send articles of contraband, with the risk of capture, to a belligerent's country for sale, the neutral government had nothing to say, but if the purpose was to send out a vessel to prey on the commerce of a friendly power, then the neutral government should prevent her departure. It must be admitted that the rule is hardly satisfactory.[508]

Hall contends that the true test should be "the character of the s.h.i.+p itself." If built for warlike use, the vessel should be detained; if for commercial purposes, she should be allowed to depart. This rule has at least one element of fairness and sense. It is not always possible to get at intent, but the character of the vessel is likely to reward observation and scrutiny.[509]

Regret has been expressed by many writers that the award of the arbitrators appointed under the Treaty of Was.h.i.+ngton of 1871, upon the _Alabama_ claims, has proved of so little value as a precedent upon the liability of a neutral power for the departure from its ports of vessels fitted out and equipped for the destruction of belligerent commerce.

Article VI. of the Treaty provided that the Arbitrators should be "governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the Arbitrators shall determine to have been applicable to the case.

"A neutral Government is bound--

"First to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

"Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

"Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

The British government declared that it "cannot a.s.sent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned" arose but "in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries arising out of those claims, the Arbitrators should a.s.sume that her Majesty's government had undertaken to act upon the principles set forth in these rules.

"And the high contracting parties agree to observe these rules as between themselves in the future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them."[510]