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stress of weather, or other extreme and unavoidable necessity, the governor may allow for her removal such time as he may consider to be necessary.
4. If any prize shall not be removed at the time prescribed to the captors by the governor, the governor may detain such prize until Her Majesty's pleasure shall be made known.
5. If any prize shall have been captured by any violation of the territory or territorial waters of Her Majesty, the governor may detain such prize until Her Majesty's pleasure shall be made known.
Declaration of Emperor Napoleon III, of June 10, 1861.
1. No vessel of war or privateer of either of the belligerents will be permitted to bring prizes into our ports or roadsteads and to remain there more than twenty-four hours, except in case they have been forced to put into port.
2. No captured articles can be sold in our said ports or roadsteads."
Belgium has given its adhesion to the principles laid down in the Declaration of the Congress of Paris of April 6, 1856. This adhesion was published, together with the said Declaration (6th June, 1856) in the Belgian Moniteur of June 8, 1856.
The commercial public is notified that instructions on this subject have been given to the judicial, maritime, and military authorities, warning them that privateers, under whatever flag or commission, or letters of marque, are not to be allowed to enter our ports except in case of imminent perils of the sea. The aforesaid authorities are charged, consequently, to keep a strict watch upon all such privateers and their prizes, and to compel them to put to sea again as soon as practicable.
In obedience to the King's orders, the Ministers for Foreign Affairs, of Justice, and of the Marine, present to the knowledge of all whom it may concern, that to guard against probable difficulties during the doubtful complications in the United States of North America, no privateers under any flag, or provided with any commission or letters of marque, or their prizes, shall be admitted into our havens or seaports, unless in case of distress, and that requisite orders be issued that under any circumstances such privateers and their prizes be required to go again to sea as speedily as possible."
Article 3. It is forbidden to vessels of war or privateers with their prizes, to enter or to remain for more than 24 hours in the ports of the monarchy, except in case of
Bernard, A Historical Account of the Neutrality of Great Britain during the American Civil War (1870), pp. 140–141.
Ibid., p. 144.
8 Ibid., p. 145. Ibid., p. 146.
stress of weather. Whenever this last shall occur, the authorities will keep watch over the vessel, and oblige her to go out to sea as soon as possible without permitting her to take any stores except those strictly necessary for the moment, but in no case arms nor supplies for war.
Article 4. Articles proceeding from prizes shall not be sold in the ports of the monarchy.10
Article 1. In all the ports and waters of this kingdom, as well on the continent and in the adjacent islands as in the ultramarine provinces, Portuguese subjects and foreigners are prohibited from fitting out vessels destined for privateering.
Article 2. In the same ports and waters referred to in the preceding article is, in like manner, prohibited the entrance of privateers and of the prizes made by privateers, or by armed vessels.
The cases of overruling necessity (force majeure), in which, according to the law of nations, hospitality is indispensable, are excepted from this regulation, without permission, however, being allowed, in any manner, for the sale of any objects proceeding from prizes.11
From the actions of European nations in the Crimean War and in the Civil War, it seems to be clear that the attitude of neutral nations is against the admission of prizes, except for humanitarian reasons. Further proof is furnished by Convention No. 13 of the Second Hague Peace Conference of 1907 concerning the rights and duties of neutral Powers in naval war. The subject of the admission of prizes is stated and regulated in the following three articles:
A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions.
It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral Power must order it to leave at once; should it fail to obey, the neutral Power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew. (Article 21.)
A neutral Power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in Article 21. (Article 22.)
A neutral Power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports.
If the prize is convoyed by a war-ship, the prize crew may go on board the convoying ship.
If the prize is not under convoy, the prize crew are left at liberty. (Article 23.) This convention is not cited as binding, because by Article 28 thereof, "its provisions do not apply except between contracting Powers, and
10 Bernard, A Historical Account of the Neutrality of Great Britain during the American Civil War (1870), p. 147.
11 Ibid., p. 148.
then only if all the belligerents are parties to the convention." Inasmuch, however, as neutrals are admitted to have the right to exclude prizes, or to admit them on conditions, it is evident that any neutral can enforce Articles 21, 22, and 23 if it should so desire, irrespective of the question whether the convention is or is not legally binding. It should be said, as explaining the attitude of the United States in this matter, that in adhering to the convention, the United States specifically excluded Article 23. JAMES BROWN SCOTT.
DAYS OF GRACE FOR MERCHANT VESSELS OF THE ENEMY
A degree of consideration for merchant vessels of one belligerent within the ports of the other belligerent has often been shown since the seventeenth century. Such consideration was particularly common after the middle of the nineteenth century, though no clear principle could be said to be established. The practice of granting days of grace showed wide differences in the period granted, varying from six weeks to a few hours. At the Conference at The Hague in 1907 the delegates of the United States took the position that days of grace for departure of merchant vessels of one belligerent in the port of the other belligerent at the outbreak of war should be regarded as obligatory. The British delegation were opposed to making the grant of a period for departure obligatory, though supporting the idea that it would be desirable as a favor. The result of the consideration at The Hague in 1907 was the formulation of a convention less stringent in its provisions than recognized by the United States delegation as then legally binding under international practice.
The objection brought forward against an obligatory period was that a fixed number of days would be undesirable, as the period should be determined in each case as it arose. This objection seemed sound, but in no way insurmountable. The Convention of 1907 relative to the Status of Enemy Merchant Vessels announces in the preamble that the states of the world are anxious in negotiating the convention "to insure the security of international commerce against the surprises of war" and to protect commercial operations "in process of being carried out before the outbreak of hostilities." As commercial relations involve mutual exchange, the difficulty which many felt lest one state should gain an advantage over another at the outbreak of war would seem to be met by the insertion of a reciprocal obligation to grant days of grace
accompanied by the proviso that one belligerent should be obliged to grant no longer period than that granted by his opponent. Such a plan is both reasonable and practicable.
It is reasonable that one belligerent should not be under obligation to accord to his opponent more favorable treatment than that accorded to him by his opponent. It is practicable because the belligerent granting a given period to his opponent may under the reciprocity principle shorten the period to that accorded by his opponent.
Further to support this position may be adduced the practice of the present war in Europe. The German declaration of war against France of August 3, 1914, contained a provision for reciprocity in regard to treatment of merchant vessels, which France immediately met. The British Orders in Council of August 4, 1914, contained a similar plan for German vessels, but this was not carried into effect rather because of misunderstanding of telegrams, than because of lack of willingness on the part of Great Britain and Germany. The principle of days of grace was adopted as regards Austria-Hungary when Great Britain was informed that Austria-Hungary would treat British ships in a manner "not less favorable" than that proposed by Great Britain for Austro-Hungarian vessels. France likewise accorded reciprocal treatment to AustroHungarian merchant vessels.
It would seem proper that the United States should continue to support as reasonable and practicable a plan to which in actual test of war the great states have resorted, and that the principle of reciprocity in the grant of days of grace for innocent merchant vessels of one belligerent in the ports of the other at the outbreak of war should prevail. GEORGE GRAFTON WILSON.
ARMED MERCHANT SHIPS
The question has been much discussed whether merchant ships of the enemy carrying arms for defensive purposes are to be considered as losing their mercantile character by this fact and are to be denied the privileges accorded by international law to enemy merchant vessels. The question has also been discussed since the outbreak of the great war whether the Declaration of Paris of 1856 forbidding privateering should in spirit, if not in the letter, prevent enemy merchant vessels from carrying arms, even for defensive purposes. The question has also arisen and has been the subject of diplomatic negotiations, with resultant tension,
whether neutrals can properly ship their goods upon such armed merchant vessels without properly subjecting them to the fate of the vessel carrying them; and, finally, whether neutral persons traveling upon such vessels are to be held as voluntarily subjecting themselves to the risk incurred by such vessels and, by assuming the risk, depriving themselves of the claim to protection of their governments, or, indeed, whether their governments have the right under such circumstances to protect their subjects or citizens in the premises.
It will clear the field of discussion, at least so far as the United States is concerned, to state that this government is not a party to the Declaration of Paris, that it is therefore not bound by its provisions, and that the United States is free to recognize the right to indulge in privateering should it desire to do so.
In the next place, it should be said, at least according to the practice of the United States, that an American citizen can not renounce the right of the government to protect him in an appropriate case, of which the government is the judge, because a citizen of the United States as such does not represent the United States, and a renunciation of a right can only be made by an official agent of the government acting within the scope of his agency. A familiar illustration from municipal law will make this distinction clear: A person injured by a tort may, if he choose, waive the civil injury; but if the tort be at one and the same time a crime, the injured person can not waive this, because he is not the agent of the public, and the appropriate agent of the public must determine whether or not prosecution shall take place.
With these two questions out of the way, the others may be taken up and considered.
It may be admitted that it is difficult to determine whether a gun is carried for a defensive or for an offensive purpose, but the circumstances of the individual case may be appealed to, as the armament required for one purpose differs from that necessary for the other. The view has been expressed that the duty of a merchant ship is not to resist if attacked, and that by defending itself it loses the character of a merchant ship and becomes a privateer, in the sense that it carries on hostile operations without becoming a public vessel: and as privateering is forbidden by the Declaration of Paris, which binds the contracting parties, the vessel in question has no legitimate standing in international law. It is not a private vessel converted to a public purpose, commissioned by the government and manned by officers of the navy; and, on the other