Responsi indivi violation duties § 3. But while the law of nations holds the government of the neutral State responsible for any act of positive duals for hostility committed by its officers, or, in most cases, by its of neutral citizens and subjects, it is not in general held responsible for ordinary violations of neutral duty (not in themselves of positive hostility) by such citizens or subjects. The law in such cases imposes the duty upon the individual, and if it be violated the penalty is imposed and enforced upon the individual by the capture and confiscation of his property. Thus, the neutral State is not bound to restrain its subjects from engaging in contraband trade, or from violating the right of visitation and search, or the law of sieges and blockades; the law imposes upon the individual the duty of abstaining from such illegal acts, and, if guilty of a violation of this duty, he is the one to suffer the punishment due to the offence. Nor do the courts of a neutral country, as a general rule, enforce penalties for violations of neutral duty.' As before remarked, there are certain obligations of neutrality, such as abstaining from acts of positive hostility, which the neutral State is bound to enforce with respect to its subjects; its own municipal laws in relation to such matters are, of course, administered by its own tribunals. But such courts do not enforce penalties for carrying contraband of war, for a breach of blockade, or for violating the belligerent right of visitation and search. All such cases are left to be adjusted by the prize tribunals of the belligerents. As to the rules of the Treaty of Washington, 1871,2 concerning the fitting out and arming of vessels for warlike use in the ports of a neutral, and laying down certain principles of neutrality as binding on the Government of a neutral country, it must be noticed that they are only binding as between Great Britain and the United States of America, and any other maritime Power (if any) who may in the future accede to those rules. They must be looked upon rather in the light of peculiar treaty obligations than as real principles of international law. Their interpretation is far from easy. § 4. It may be stated, as a general principle which lies at 1 Ex parte Chavasse, re Grazebrook, 2 Mar. Law Cas. (Chan.), 197 ; Webster, Dip. and Off. Papers, pp. 309, 310; Lee, Opinions of U.S. Attys.Genl., vol. i. p. 61; Heffter, Droit International, §§ 148, 172; Ortolan, Diplomatie de la Mer, tome ii. ch. vi. 2 See ante, ch. xxiv. § 154. citizen to an enemy the foundation of the rules of international law relating to Where a neutral duties, that their violation is neither innocent nor offers lawful. It is not simply the penalty incurred by such supplies violation that makes it wrong, as some have asserted; nor is it correct to say that, if the neutral merchant is willing to incur the risk of capture and condemnation, he may engage, with entire security of conscience, in a trade forbidden by the law of nations. The act is wrong in itself, and the penalty results from his violation of moral duty, as well as of law. The duties imposed upon the citizens and subjects flow from exactly the same principle as those which attach to the Government of the neutral States. Where he supplies to the enemy,' says Duer, 'munitions or other articles contraband of war, or relieves with provisions, or otherwise, a blockaded port, although his motives may be different, his moral delinquency is precisely the same. By these acts he makes himself personally a party to a war, in which, as a neutral, he had no right to engage, and his property is justly treated as that of an enemy.' It appears, from early decisions in the courts. of Common Law in England, that the above doctrine has been explicitly recognised. די 6 § 5. The first question which presents itself for considera- Neutral tion, as connected with neutral duties, is the transport of transgoods of an enemy in a neutral vessel. Whatever may be porting the true original abstract principle of natural law on this enemy's goods subject,' says Wheaton, it is undeniable that the constant usage and practice of belligerent nations, from the earliest times, have subjected enemy's goods in neutral vessels to capture and condemnation as prizes of war. This constant and universal usage has only been interrupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations. The regulations and practice of certain maritime nations, at different periods, have not only considered the goods of an enemy laden in the ships of a friend liable to capture, but have doomed to confiscation the neutral vessel, on board of which these goods were laden. This practice has been sought to be justified upon a supposed analogy with that provision of the Roman law, which in 1 Duer, On Insurance, vol. i. pp. 531, 754, 755, 772-775; the 'Shepherdess,' 5 Rob., 264; Pistoye et Duverdy, Traité des Prises, tit. vi. ch. ii. sec. iii.; Hautefeuille, Des Nations Neutres, tit. 15. volved the vehicle of prohibited commodities in the confiscation pronounced against the prohibited goods themselves. Thus, by the marine ordinance of Louis XIV., of 1681, all vessels laden with enemy's goods are declared lawful prizes of war. The contrary rule had been adopted by the preceding prize Ordinances of France, and was again revived by the règlement of 1744, by which it was declared that, in case there should be found on board of neutral vessels, of whatever nation, goods or effects belonging to his Majesty's enemies, the goods or effects should be good prize, and the vessel should be restored.' Valin, in his commentary upon the Ordinance, admits that the more rigid rule, which continued to prevail in the French prize tribunals from 1681 to 1744, was peculiar to the jurisprudence of France and Spain; but that the usage of other nations was only to confiscate the goods of the enemy. The concurring testimony of textwriters is that, by the usage of the world, neutral vessels are not liable to condemnation for carrying enemy goods, whatever rule may be adopted or enforced with respect to the condemnation of the goods themselves. The transport of enemy's goods in a neutral vessel cannot, therefore, be regarded, in general, as a violation of any neutral duty, or as an act subject to any punishment. 1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. §§ 19, 20; Wheaton, Hist. Law of Nations, pp. 111-119, 200-206; Albericus Gentilis, Hist. Advoc., lib. i. ch. xxvii.; Valin, Com. sur l'Ord., liv. iii. tit. ix. In 1640 it was asserted, on the authority of Sir H. Martin, that it had never been the practice to condemn neutral ships for having enemy's goods on board, but the freight of the enemy's goods condemned was always paid. (Sydn., State Papers, vol. xxi. p. 662.) The Court books of the Admiralty show the case of the 'Pearl,' in which a question was raised, in 1704, on the point concerning freight. In the result freight was decreed, although the cargo was condemned. In 1753, in the celebrated answer to the Prussian memorial, it is asserted that in the case of ships restored freight was paid for such of the goods as manifestly belonged to the enemy, and were condemned; and amongst the list of Prussian cases referred to there is a class described, Ships restored with freight according to the bills of lading for such goods which were found to be the property of enemy, and condemned as prize.' It was the invariable practice of the British Court of Admiralty during the wars of 1801, unless in cases where some circumstances of mala fides occurred, or where the ship was adjudged to have drawn on herself the loss of freight-as a penalty for some act which, though a departure from pure neutral conduct, has not, according to the practice of the law of nations, made her liable to condemnation. In 1866, upon a seizure of a neutral vessel engaged in shipping coin under circumstances adapted to excite reasonable suspicion, there being no proof that it was enemy's property, a decree was made by the Supreme text § 6. The rule of international law, as stated above by Opinions of English Wheaton, with respect to enemy goods in neutral vessels, is and sustained by English and American text-writers, and by the American older Continental publicists, as Bynkershoek, Heineccius, writers Cocceius, Vattel, Lampredi, Azuni, &c., while Hubner, Kluber, Rayneval, Jouffroy, Massé, Ortolan, and Hautefeuille have not only attacked its principles, but have denied its correctness as a rule of law. Hautefeuille has discussed the question at great length, and with marked ability. His conclusions are:- I. That neutrals may freely transport in neutral vessels the goods of one of the belligerents, except contraband of war. 2. That belligerents have not, in any case, the right to seize the property of their enemy in neutral vessels; in a word, that free ships make free the merchandise which they carry, whatever may be the ownership.' ' Court of the United States restoring the vessel and cargo, including the coin, but apportioning the costs and expenses consequent on the capture rateably between the vessel and coin, exempting from contribution the rest of the cargo. (The 'Dashing Wave,' 5 Wall., 170.) 1 Azuni, Droit Maritime, tome ii. ch. iii.; Lampredi, Du Commerce, &c., pt. i. 10; Cocceius, De Jure Belli in Amicos; Vattel, Droit des Gens, liv. iii. ch. vii. § 115; Heineccius, De Navium, &c., com. ii. §§ 8, 9: Bynkershoek, Quæst. Jur. Pub., lib. i. cap. iv.; Hubner, Saisie des Bâtimens, tome i. pt. ii. ch. ii.; Rayneval, De la Liberté des Mers, tome i. ch. vi.; Jouffroy, Droit Maritime, pp. 188 et seq.; Massé, Droit Commercial, liv. ii. tit. i. ch. ii. sec. ii. ; Ortolan, Diplomatie de la Mer, liv. iii. ch. v.; Hautefeuille, Des Nations Neutres, tit. x.; Zouch, Juris et Juridici Fecialis, p. ii. § 8; Bello, Derecho Internacional, pt. ii. cap. viii. § 1; Riquelme, Derecho Púb. Int., lib. i. tit. ii. cap. xiv. From the earliest time Great Britain had claimed and exercised the right of seizing an enemy's goods under whatever flag they might be found, and that right had been unquestioned in England. Lord Mansfield, when appealed to by that Government in 1756, laid down the following principles: 1. The goods of an enemy on board the ships of a friend might be taken. 2. The lawful goods of a friend on board the ships of an enemy ought to be restored. 3. Contraband goods going to an enemy, although the property of a friend, might be taken as prize. In 1780, when the armed neutrality was formed by the Empress Catherine of Russia, England again declined to abandon these principles; and within fifteen years every nation who had joined it, as soon as it touched its interests, abandoned it. In 1801, when there was the armed confederacy, Ergland laid an embargo on the property of each of the countries forming that league. Letters of marque were issued, and in six months the whole confederacy was at an end. Lord Eldon held that the right of searching neutral vessels originated in the right of nature, and that no convention or treaty could destroy that right. Lord Stowell held that 'a war and a commercial peace is a state of things not yet seen in the world; there is no such thing as a war for arms and a peace for commerce; and the right of visiting and searching merchantmen on the high seas, whatever be the cargoes, whatever the destination, is the incontestable right of the lawfully commissioned cruisers of a belligerent State.' Neutral enemy's vessels § 7. Another question, usually discussed in connection goods in with the carrying of enemy's goods in neutral ships, is that of transporting neutral goods in enemy's ship. On this question we quote some of the remarks of Wheaton. 'Although,' he says, by the general usage of nations, independently of treaty stipulations, the goods of an enemy found on board the ships of a friend are liable to capture and condemnation; yet the converse rule, which subjects to confiscation the goods of Lord Nelson, in the House of Lords in 1801, stigmatised the maxim, ‘free ships free goods,' as 'a proposition so monstrous in itself, so contrary to the law of nations, so injurious to the maritime interests of this country, that if it had been persisted in we ought not to have concluded the war with those powers while a single man, a single shilling, or even a single drop of blood remained in the country.' Buonaparte, on the same subject, said 'the greatest blow that could be given to England would be to compel her to give up her maritime rights.' The rule was that a neutral should not be allowed to feed the resources of one belligerent as against another. Enemy's goods, as well as contraband of war, should be seized whenever found on a neutral vessel. The neutral vessel was not seized, but was detained, and after adjudication in a prize court was not only released, but the owners were paid the freight to which they would have been entitled had they taken the goods to their destination, and in some instances demurrage was allowed as well. This was never disputed till Frederick the Great refused to satisfy the English claims after the cession of Silesia, and then for the first time the new principle, 'free ships free goods,' was put forward, but was resisted, and the claims were paid. Next, the Prussian Commission was appointed to alter the old maritime rules, and establish other rules more favourable to Prussian interests. The memorials which were issued by this Commission were answered by the able letter of the Duke of Newcastle, and by the report which Lord Mansfield assisted in drawing up, and nothing more was heard of the new doctrine until the armed neutrality of 1780. By a decree of the National Convention of May 9, 1793, 'enemy's goods on board neutral vessels' were declared good prize, the neutral ships being released and freight paid by the captors. On February 8, 1793, Russia renounced her treaty of 1786 with France, declaring that the principle, 'free ships free goods,' should be no longer obligatory until the restoration of order in France.' In the same year Russia renewed with England her treaty of 1776, stipulating that neutral commerce should be carried on according to the principles and rules of the law of nations generally recognised,' and further, engaged to prevent neutrals from giving, on that occasion of common concern to every State, any protection whatever, directly or indirectly, in consequence of their neutrality, to the commerce or property of the French on the sea or in the ports of France. A similar article was inserted in the treaty of the same year between Great Britain and Spain, between Great Britain and Russia, and between Great Britain and the Emperor. These powers all re-affirmed the old rule. The new rule was abandoned by Sweden in 1788, and by Russia, France, Spain, Prussia, and by the Emperor. In 1809 Russia declared that ships laden in part with goods of the manufacture or produce of hostile countries should be stopped, and such merchandise confiscated and sold by auction for the profit of the crown, and if the merchandise composed more than half the cargo, not only the cargo, but also the ship should be confiscated. |