« ПредыдущаяПродолжить »
hand, it is not a merchant vessel plying its peaceful calling without taking part in hostilities. On September 19, 1914, the Department of State issued a circular which recognized that, “A merchant vessel of belligerent nationality may carry an armament and ammunition for the sole purpose of defense without acquiring the character of a ship of war," and prescribed certain rules for determining the offensive or defensive character of the armament in each case.
The Department of State has the authority of Chief Justice Marshall in the case of The Nereide (9 Cranch, p. 388), decided by the Supreme Court of the United States in 1815, to the effect that a neutral may lawfully employ an armed belligerent vessel to transport his goods, and such goods do not lose their neutral character, by the armament, nor by the resistance made by such vessel, provided the neutral do not aid in such armament or resistance. The same question arose later and the judgment of the court in the case of The Nereide was affirmed in the case of The Atalanta (3 Wheaton, p. 409), decided in 1818.
It should be said that Mr. Justice Story delivered a vigorous dissenting opinion in the case of The Nereide, but, apparently regarding the question as settled by the holding in that case, he did not dissent in the case of The Atalanta.
It should also be said that, while there do not appear to be many adjudged cases, the practice of Great Britain, as stated by Sir William Scott in the case of The Fanny (1 Dodson, p. 443), decided in 1814, is opposed to The Nereide and accords with the dissenting opinion of Justice Story in that case. The distinction between The Nereide and The Fanny, and the questions involved in these decisions is thus pointed out by Chancellor Kent, in his Commentaries:
In the case of The Nereide, the Supreme Court of the United States carried the principle of immunity of neutral property on board an enemy's vessel to the extent of allowing it to be laden on board an armed belligerent cruiser; and it was held that the goods did not lose their neutral character, not even in consequence of resistance made by the armed vessel, provided the neutral did not aid in such armament or resistance, notwithstanding he had chartered the whole vessel, and was on board at the time of the resistance. The act of arming was the act of the belligerent party, and the neutral goods did not contribute to the armament, further than the freight, which would be paid if the vessel was unarmed, and neither the goods nor the neutral owner were chargeable for the hostile acts of the belligerent vessel, if the neutral took no part in the resistance. A contemporary decision of an opposite character,
The text of the circular is printed in the Special Supplement to the JOURNAL for July, 1915, p. 234.
on the same point, was made by the English High Court of Admiralty in the case of the Fanny; and it was there observed that a neutral subject was at liberty to put his goods on board the merchant vessel of a belligerent; but if he placed them on board an armed belligerent ship, he showed an intention to resist visitation and search, by means of the association, and, so far as he does this, he was presumed to adhere to the enemy, and to withdraw himself from his protection of neutrality. If a neutral chooses to take the protection of a hostile force, instead of his own neutral character, he must take (it was observed) the inconvenience with the convenience, and his property would, upon just and sound principles, be liable to condemnation along with the belligerent vessel.
The question decided in the case of the Nereide is a very important one in prize law, and of infinite importance in its practical results; and it is to be regretted that the decisions of two courts of the highest character, on such a point, should have been in direct contradiction to each other. The same point afterwards arose, and was again argued, and the former decision repeated in the case of the Atalanta. It was observed, in this latter case, that the rule with us was correct in principle, and the most liberal and honorable to the jurisprudence of this country. The question may, therefore, be considered here as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal on this side of the Atlantic. (12th ed., Vol. 1, pp. 132-3.)
As far as the United States is concerned, the Nereide is the measured judgment of the Supreme Court, not overruled or departed from, but solemnly affirmed on a reconsideration of the question involved. The law seems to be clear, as far as the Supreme Court of the United States can make or expound the law.
JAMES BROWN SCOTT.
THE CONSEQUENCES OF THE SEVERANCE OF DIPLOMATIC RELATIONS
There seems to be some confusion in the public mind as to the consequences of a break in the diplomatic relations between two states.
When a certain diplomatic agent is unacceptable for a personal reason, his recall may be asked or he may even be sent out of a country, but the presumption is that a successor will be appointed. Suppose this not to take place, it is still no proof of strained relations, because the individual and not the state sending him is at fault.
It is quite otherwise when state A commits an unfriendly act which state B desires to resent. Their diplomatic relations may cease, e. g., through B's recall of its agent to A, not because the agent conducting them is persona non grata, but because governmental intercourse implies an amicable understanding which no longer exists. The recall of a minister is a mark of displeasure aimed at the state. But even so, and even if reciprocated, it is not the beginning of hostilities necessarily, not even the equivalent of a non-intercourse act or reprisals. Treaties between A and B are operative, commerce is unchecked, communication other than diplomatic unhindered. There is a background of what is conveniently called "strained relations," which may doubtless grow into hostilities but which equally well may melt away in the warmth of returning good-will or be allayed by reparation. The stoppage of direct diplomatic intercourse may last for a considerable time with no hostile sequel, as in the case of Great Britain and Venezuela with their boundary dispute, for ten years.
So likewise Italy recalled her minister at Washington in 1891 to mark her displeasure at the slowness of redress for the New Orleans lynching. And, breaking relations at its own end, France refused to receive Pinckney in 1796, to show its resentment at Jay's Treaty. Similar pressure was put by the United States upon France in 1834 to enforce the Spoliation Claims, and upon Mexico in 1858 to prevent discrimination against our citizens. None of these instances resulted in actual war.
T. S. WOOLSEY.
THE SEIZURE OF ENEMY SUBJECTS UPON NEUTRAL VESSELS UPON
THE HIGH SEAS
In the Journal Officiel of the French Republic for November 3, 1914, there appears the following brief but very important paragraph:
By reason of measures taken by the German military authorities in Belgium, and especially in France, regarding persons susceptible of being called to the colors, and whom the said authorities have taken as prisoners of war or have held for further action, the Government of the Republic has given instructions that all enemy subjects of the same category as the above and found on board neutral vessels shall be made prisoners of war.
There are several points of view from which this paragraph of a single sentence should be considered. In the first place, German subjects susceptible of military duty are not to be taken from German control, which would be proper enough to do if the French Republic were able to capture them and to remove them from German jurisdiction; the German subjects belonging to this category are those found, not in German territory or in territory subject to German control, nor upon German vessels upon the high seas, from which they could properly be taken, but upon neutral vessels, and such persons are to be made prisoners of war. That is to say, the French authorities are to visit and search neutral vessels upon the high seas, not neutral vessels which have subjected themselves to French jurisdiction by entering a French port, and the German subjects not actually incorporated in the army, but capable of being so incorporated, are to be removed from the neutral vessels upon the high seas and made prisoners of war.
Now, the reason for this is, not that neutrals have committed any crime for which they are to be punished, but the reason, or pretext, is that German authorities in Belgium and in France have made prisoners of war, or have otherwise held French citizens and Belgian subjects fit for military service. This action of the German authorities is regarded as wrong, and neutral vessels carrying German subjects of the class specified are to suffer for alleged misconduct of German authorities in Belgium and in France.
Retaliation is at best an ugly word, and leads easily to reprehensible acts which people regret and would rather have undone when it is too late. But retaliation upon the enemy which affects only, or principally, neutrals who have committed no wrong is indefensible, and the nation doing so makes the justification of its course very difficult and alienates the sympathy of the neutrals of which the belligerents of to-day stand So sorely in need.
JAMES BROWN SCOTT.
SOME POPULAR MISCONCEPTIONS OF NEUTRALITY
There seems to be considerable popular misconception of the rights and obligations involved in a proper idea of neutrality.
In the first place, it should be observed that the popular idea of neutrality seems to differ widely from its juristic conception or content. In the eyes of the international jurist neutrality is a status or condition, and consists in the observance of the law of neutrality. This law consists of certain fairly well-defined rules and regulations which are, historically speaking, for the most part the results of precedents and of a series of compromises between the opposing interests of neutrals and belligerents.
Neutrality has been well defined as “the condition of those states which in time of war take no part in the contest, but continue pacific intercourse with the belligerents.” States choosing a neutral status during war enjoy certain legal rights, such as the inviolability from belligerent activities of their own territory and the free use of the high seas, the common highway of nations. This latter right is, however, subject to the exercise of the belligerent rights of visit and search and, under certain circumstances, of capture or even of destruction of neutral vessels and cargoes.
The rules of neutral obligation prescribe total abstention from certain acts (such as the sale of warships or the fitting and sending out of military expeditions); the observance of a formal impartiality in cases where indirect aid is permissible (as in that of the sale of munitions and war supplies); and the toleration by neutrals of the exercise of certain belligerent rights (such as those of visit, search, and capture).
The popular idea of neutrality seems to be much broader and far more comprehensive than the legal conception thereof. The popular idea seems to imply an attitude of assumed indifference or impartiality, of isolation or aloofness, involving a total abstention from acts which might possibly be of material assistance to either side. Or, if such indirect aid be permitted, this conception of neutral obligations would require that the impossible attempt be made of holding even the balance of indirect assistance between the opposing belligerents. Some would even go so far as to demand a sort of spiritual, moral, or intellectual neutrality involving (as such an attitude would) a suspension of judgment, a suppression of emotional life, and a negation in practice of our fundamental conceptions of justice and righteousness.
It is not always remembered that the status or condition of neutrality is not itself a legal duty. No state is under legal or moral obligation to be or remain neutral. Whether, for example, the United States shall continue to act the part of a neutral or belligerent in this war is a question of national policy which, like any other political question, should be decided from the standpoint of what we deem to be our own essential and permanent interests coupled with those of humanity at large.
It is of particular interest to note that the idea of juristic neutrality is comparatively recent. The theory of neutral rights and obligations was first formulated by the great publicists of the eighteenth century like Bynkershoek, Hübner, and Vattel; but was first put into real practice by the United States during Washington's administration. The socalled "founder" or "father” of international law, Grotius, was not an advocate of neutrality. In a single passage-almost his sole reference to the subject-he thus summarizes his position:
It is the duty of neutrals to do nothing which may strengthen the side which has the worse cause, or which may impede the motions of him who is carrying on a just