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enemy fortified place, or to a place serving as a base for the armed forces
of the enemy.
In fact, the Germans have assumed that all towns on the English coasts are fortified places. Thus their bombardment of Hartlepool, West Scarborough, and Whitby was defended on this ground, although the English assert that they were not only unfortified, but open and undefended. Whenever, therefore, a cargo of conditional contraband destined for any English port, whether actually fortified or serving as a base for the armed forces of the enemy or not, has been captured it has been destroyed. Even if the distinction which the Declaration of London recognizes between the right to capture or destroy cargoes of conditional contraband and cargoes of absolute contraband were scrupulously observed, the results would be of little practical consequence, for the reason that during the present war many of the most important commodities heretofore regarded as conditional contraband have in fact been placed by the several belligerents on the list of absolute contraband.
Professor John Bassett Moore, referring to the discussion between Great Britain and Russia during the Russo-Japanese War, remarks that the discussion seemed to emphasize the potentially important relation of the question of contraband to the question of destruction; and he adds:
When publicists have spoken of the presence of contraband as justifying or excusing the destruction of a neutral ship that should not be brought in, they have, no doubt, had in mind cargoes composed of things especially adapted to use in war and confessedly contraband, such as arms and ammunition, and cannot be assumed to have contemplated the subjection of neutral commerce to general depredation under an extension of the categories of contraband.74
The very general character of the language of the Declaration of London in respect to the destruction of neutral prizes undoubtedly leaves belligerents a very wide latitude, so that it is possible to turn the exception into the rule without a literal violation of the Declaration. In the present situation, with the ports of Germany blockaded and her naval operations carried on only by submarines, it may reasonably be claimed whenever a prize is captured at sea that the taking of it in would involve grave danger to the submarine, even if it were possible for such craft
74 Digest of International Law, Vol. 7, p. 527.
to conduct a prize into a home port. German naval commanders are practically in the same situation as the Confederate commanders were during the Civil War. Their home ports are blockaded and neutral ports are not open to the reception of their prizes; they must, therefore, allow their prizes to go free or destroy them. But in the present war they are doing what no Confederate naval commander ever assumed to do; they are not only destroying enemy prizes, but they are destroying on an extensive scale neutral vessels carrying contraband and with little or no regard to whether the goods consist of munitions of war or foodstuffs, sometimes without satisfying themselves of the true nationality of the ship or the character of the cargo, and sometimes without making any provision for the safety of the crew. If the existing rules of international law are susceptible of an interpretation which permits a belligerent to depredate upon neutral commerce in this fashion, they should be speedily altered. It is not to be assumed that it was the intention of the International Naval Conference to authorize general destruction by belligerents of neutral vessels carrying foodstuffs and other articles of conditional contraband, but the failure to specify precisely the contingencies under which a vessel may be sunk instead of a general authorization to destroy in case of danger or interference with the success of the captor's operations, has had the effect of making each belligerent the judge of the conditions under which destruction is allowable. If this principle be admitted, the rights of neutral commerce must henceforth be at the mercy of belligerent naval commanders, who are free to destroy any neutral vessels carrying goods which they may choose to regard as contraband and which they may find inconvenient to take in for adjudication by a prize court.
JAMES W. GARNER.
NAVAL WARFARE: LAW AND LICENSE
If any one having an elementary acquaintance with the law of nations had been asked, twelve years ago, what were the rights of belligerents and neutrals in naval warfare, he would not have been at a loss for a reply. Subject to one or two minor points of unsettled detail, he would have been quite clear and certain as to the position. A continuous series of cases and textbooks made it plain. If some went further than others in claiming extended neutral immunities, that was a point of academic argument which was perhaps of interest, but of no particular importance, except as showing that the trend of thought was on the whole unfavorable to the belligerent.
In twelve short years the system has been broken down which had lasted for two hundred and fifty, and had stood the test of repeated great wars. The beginnings of decay—the little rift which was to make the harmony of law mute and voiceless, are to be found in the judgment of Salmon P. Chase, Chief Justice of the Supreme Court of the United States, in the cases of the Bermuda and the Springbok. It is very extraordinary that no dissentient opinion was published. The minority of the Supreme Court contained that true successor of Marshall, Kent and Story, Samuel Nelson. No analysis of the voting appears in Wallace's Reports. But from other sources we know that Nelson carried with him Wayne, Clifford, and Swayne (afterwards Chief Justice), whilst Grier, Davis and the two junior judges went with Chase, who had himself only just been raised to the bench. His judgments are less regarded than those of many other Chief Justices of the United States, says Professor Gregory, of Columbia, because, we are told, his "consuming ambition for the presidency" and his political activities diverted his attention from his judicial duties.
It is almost certain, a priori, that the decision of such a majority would be wrong. And wrong it surely was in these instances. It broke down the traditional American encouragement of peaceable merchants which Jefferson and Franklin had established as a canon of American policy. Shortly to state his view, Chase made the supposed intention of aiding the enemy's forces the sole test of contraband or breach of blockade. He accordingly (1) admitted extraneous evidence, contrary to the rule which made the guilt of the ship and cargo depend, in these extraordinary processes, on her own admissions; (2) rejected the rule which absolutely required, as a condition of confiscation, an avowed destination to an enemy port; (3) adapted and extended the list of contraband so as to include anything that an army might find useful, from buttons to quinine.
1 See the writer's Prize Law and Continuous Voyage, pp. 89, 111.
His first innovation only a lawyer, trained to know the importance of evidence and costs, could appreciate. His third was universally rejected. His second-generally repudiated so far as blockade was concerned-was more leniently regarded when contraband was in question. And this fatal leniency drove home the wedge. The lenient critics had for the most part in mind the “absolute” variety of contraband only. Insisting on the absolute limitation of contraband to guns, rifles, explosives and the like, they were not very much concerned if such cargoes were cut off from neutral ports. Unpractical and pedantic, they conceded the points that captors might give evidence, and that the theoretical "intention” that the goods should ultimately aid the enemy should condemn. They sold the key of the pass. These two practical safeguards (the common law of Europe from time immemorial) once thrown away, neutral safety had been bartered for nothing. All that remained was for belligerents to insist on enlarging the list of contraband articles. And to this the theorists could not object. For they had agreed (1) that the "intention" was decisive; and (2) that any evidence might be adduced to prove it. After that there was no sense or logic in saying that if you may stop bayonets because they are meant to help the enemy, you may not stop quinine or potatoes. The very raison d'être of the former rule which limited the category of contraband to markedly military articles, was to avoid the necessity for disputes about intention. Once it was admitted that disputes about intention were precisely what it was the business of a prize court to try, there was evidently no point in restricting its laudable activities. A prize court must act summarily, or it does injustice. It cannot act summarily if it tries cases like a court of common law. But if it has made up its mind to abandon its functions of deciding summarily on the ship's own evidence, and to behave like a court of nisi prius, there is no reason why it should stop short in its novel career. Chief Justice Chase was logical, and did not stop short. The pedants were mistaken in thinking that other tribunals would.
But for a long time no occasion arose. The French proclamation declaring rice contraband in 1885 was never acted upon, nor accepted by any prize court, and was quoted by authors only as a strange aberration-a sort of specimen hung up for admiration in a moral museum, like a white blackbird. Bismarck's speech to an inconvenient deputation of merchants, in which he declined to quarrel with France on their account, telling them that the exclusion of provisions might sometimes be a legitimate means of warfare, was certainly not meant as an exposition of the law of contraband. Probably he meant no more than this that by proper means (e. g., a blockade) provisions could be excluded from China by France, so that it was impossible to rely on any natural and immutable right to import them. We know that on another occasion the Prince flatly declared that saltpetre could not possibly be contraband, since it was incapable of direct use in war, and needed to undergo a process of manufacture. In the South African War of 1900 and in the Abyssinian-Italian War of 1896 the question of transport to a neutral port did arise. In both cases the incriminated cargo was restored or compensation paid. On the whole, therefore, the ancient doctrines were maintaining their ground. Pillet and Despagnet-Bolck assert them no less than Kleen Hall persisted that the American decisions would probably find no defenders even in America.
Then came the Russo-Japanese War of 1904-5. It found an ignorant world, which had forgotten its rights. An extended list of contraband was published by the Russian Admiralty. Neutral destinations were disregarded. Captors' evidence was de rigueur. Neutral ships were destroyed.
Abraham Lincoln had certainly never contemplated this last behavior. He might well have desired to keep up a blockade of the Southern ports by the expeditious process of firing on everything that approached. But neither he nor Semmes of the Alabama harmed a neutral