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was disarmed on arrival at Chefoo was untrue, and that the Ryeshetelni was in fact the first to begin hostilities, which resulted in her capture.
For. Rel. 1904, 139.
"There are, of course, states which are unable so to demean themselves as to be entitled to have their neutrality thus respected, as was the case when the Variag and Korietz were attacked in Korean waters at Chemulpo; and as seems to have been, at any rate partially, the case when the Ryeshetelni was forcibly abducted from the Chinese harbor of Chefoo."
Neutral Duties in a Maritime War, by Thomas Erskine Holland, Proceedings of the British Academy, II. 3.
2. DUTY TO PREVENT VIOLATIONS.
In all the authorities so far cited the question of the legal status of the men of war and other public property of a foreign sovereign is discussed from the point of view of privilege and exemption. Nothing is said as to the question of protection, nor is it intimated that the circumstance that the property is exempt from the local jurisdiction imposes upon the local sovereign a special obligation to protect. Marshall, in his opinion in the case of the Exchange, speaks of the public ship in the port of a friendly nation as being "under the protection of the government of the place," but the same thing is true of the merchant vessel; and it does not appear that he intended, by the phrase in question, to make any distinction between the two things. There is, however, a class of cases in which the duty of protection of men of war, as well as of merchant vessels, in the ports of a friendly country has been expressly considered. It has sometimes happened that a man of war or a merchant vessel of one belligerent has been attacked by the other belligerent in neutral waters. In such case, what is the measure of the neutral's duty?
This question has twice concerned the United States as an injured belligerent. In March, 1814, the United States frigate Esser was attacked and destroyed by the British men of war Phoebe and Cherub, just outside the limits of the port of Valparaiso, but in territorial waters. No claim for reparation appears to have been made in this case; nor does it appear to have been alleged that there was negligence on the part of the territorial sovereign in not preventing the attack.
In September 1814 the American privateer General Armstrong, Captain Reid commander, was destroyed by a British squadron in the port of Fayal, within the jurisdiction of Portugal. The fight
was begun by the privateer firing into a British longboat which was, as Captain Reid maintained, engaged in a design to board him. Three hours afterwards a set attack was made on the privateer by boats, but it was repulsed. Later, the privateer was scuttled and destroyed. It was admitted at the time, though it was questioned afterwards, that the authorities of the port were physically unable to protect the privateer against the British attack, and no application was made to them for protection till after the firing into the longboat.
November 13, 1815, Mr. Monroe, Secretary of State, instructed Mr. Sumter, United States minister at Rio de Janeiro, then the seat of the Portuguese court, that it was hoped that a sense of what was "due to their own dignity, as well as a sense of justice to the citizens of the United States " who had "suffered by the lawless capture and destruction of their vessels and property by British cruisers within the territorial jurisdiction of Portugal," would "induce the Portuguese Government to adopt effectual measures to cause reparation to be made," and that "this point should be pressed as far as it may be useful or proper to do so.” a
In a later instruction of January 3, 1815, Mr. Monroe informed Mr. Sumter that the "growing frequency" of outrages similar to that in the case of the General Armstrong made it "more than ever necessary" for the United States "to exact from nations in amity with them a rigid fulfillment of all the obligations which a neutral character imposes," and that the President did not doubt that the Prince Regent of Portugal would assert "the rights of his own dominion, and those of a belligerent power in friendship with him;" and he requested Mr. Sumter "to bring all the circumstances of the transaction distinctly to the view of the Portuguese Government, and to state the claim which the injured party has to immediate indemnification."b
Before these instructions were received by Mr. Sumter, the Portuguese Government had directed its minister at London "to require satisfaction and indemnification" not only for certain Portuguese subjects whose persons or property on shore were injured by the British fire, but also "for the American privateer, whose safety was guaranteed by the protection of a neutral port."
In 1818 Mr. John Quincy Adams, then Secretary of State, addressed a note to the Portuguese minister concerning the claim, concluding as follows: "It is hoped your Government will, without further delay, grant to the sufferers by that transaction the full indemnity to which they are by the laws of nations entitled." c
a MS. Inst. to U. S. Ministers, VIII. 2.
MS. Inst. U. States Ministers, VIII. 29.
e Mr. Adams, Sec. of State, to Portuguese min., March 14, 1818, MS. Notes to For. Legs. II. 315.
With this communication the diplomatic correspondence was closed for a period of nearly twenty years. It was reopened in 1835, when Mr. Asbury Dickens, Acting Secretary of State, writing to Mr. Kavanagh, United States chargé d'affaires at Lisbon, in relation to claims, observed that "another claim which appeared to the Department, upon the statement submitted in behalf of the parties interested, to be well founded," and which he was " accordingly instructed to present to the Government of Portugal," was that of the brig General Armstrong. "The Portuguese authorities having failed," said Mr. Dickens, "to afford to this vessel the protection to which she was entitled in a friendly port, which she had entered as an asylum, the Government is unquestionably bound by the law of nations to make good to the sufferers all the damages sustained in consequence of the neglect of so obvious and acknowledged a duty." a
Under these instructions the claim was, after further consideration, somewhat tentatively and doubtfully presented. A correspondence ensued, and the Portuguese Government at length declared the claim to be inadmissible; and on January 10, 1844, Mr. Upshur, as Secretary of State, informed the claimants that the Department of State was unwilling to press it further. "Argument and importunity had, he declared, been exhausted, and the Government could "see nothing in the circumstances to justify or warrant it in having recourse to any other weapons." This position was reaffirmed by the Department of State' in August, 1844, and it remained undisturbed, though the claimants had appealed to Congress, till 1849, when Mr. Clayton became Secretary of State. Mr. Clayton took ground in advance of any of his predecessors. He made a positive demand for redress, on the ground that Portugal was under an absolute obligation either to enforce her neutrality or to afford compensation for any injury resulting from her failure to do so, as well as on the ground that the governor of Fayal had not used all the means in his power for requiring the neutrality of the port to be respected. The Portuguese Government refused to yield to this demand, but offered arbitration. Mr. Clayton declined arbitration, and the two countries seemed to be on the brink of rupture, when Mr. Webster became Secretary of State and accepted the Portuguese offer. Louis Napoleon was chosen as arbitrator. He rendered, November 30, 1852, an award in which he held that as Captain Reid did not "in the beginning apply for the intervention of the neutral sovereign, but "had recourse to arms for the purpose of repelling an unjust aggression of which he claimed to be the object," and thus "released that sovereign from
a Mr. Dickens, Act. Sec. of State, to Mr. Kavanagh, May 20, 1835, MS. Inst. Portugal, XIV. 24.
Mr. Upshur, Sec. of State, to Mr. S. C. Reid, Jan. 10, 1844, 33 MS. Dom. Let. 450.
the obligation to afford him protection by any other means than that of a pacific intervention," Portugal could not be held responsible" for the result of a collision, which took place in contempt of her rights of sovereignty, in violation of her territory, and without the local officers or lieutenants being requested in proper time or warned to grant aid and protection to those to whom it was due."
It is obvious that the arbitrator did not decide that the Portuguese Government was under an absolute duty to protect the privateer in all contingencies.
Not long after the decision of the arbitrator was rendered Mr. Sam C. Reid, jr., as agent of the owners, officers, and crew of the privateer, made a claim against the United States, based partly on the allegation that the case was not properly presented to the arbitrator. This claim was referred to the Court of Claims, which, in 1858, by a vote of two to one, reported against allowing it. The Court of Claims, while citing Bynkershoek as maintaining a doctrine which would make Portugal in any event liable for the loss of the privateer, if the privateer was not the aggressor, quoted, as maintaining the opposite view, Kent, Wheaton, and Klüber.
By a bill which became a law May 1, 1882, without the approval of the President, the sum of $70,739 was appropriated for the payment of the claim, but not upon any particular ground. Mr. Penci ton, who supported the bill in the Senate, said: "I do not care to place this claim upon any particular or special legal ground, although I think it is defensible upon several. I wish gentlemen to vote for it either because it appeals to patriotism, to good feeling, to an admiration of the heroism of our countrymen which was displayed on that occasion." Mr. Platt, of Connecticut, the only other Senator who spoke, said that the only other ground on which the claim could be put was "that stated by the Senator from Ohio, that it appeals strongly to the imagination."
The only international question actually decided in the case of the General Armstrong is that a vessel which, in anticipation of a hostile attack, prepares to resist it by force, and does so resist it, without applying to the neutral sovereign for protection, can not afterwards hold such a sovereign responsible for his injuries.
The question of governmental liability has been discussed in various cases in which a vessel of one belligerent has attacked a vessel of another belligerent in the waters of a third and neutral nation. As against such acts, it is admitted that the territory of a neutral is inviolable, and it has therefore been held that a belligerent is legally bound to restore, on the application of the neutral, enemies' property which he may have captured within the latter's jurisdiction or by means of hostilites there committed." "The sanctity of a claim a Wheaton, Law of Maritime Captures and Prizes, 57.
H. Doc. 551-vol 770
of territory," said Lord Stowell in a well-known case, "is undoubtedly very high. When the fact is established, it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding that it may actually belong to the enemy; and if the captor should appear to have erred willfully, and not merely through ignorance, he would be subject to further punishment." Acting upon this doctrine, Lord Stowell ordered the Spanish ship Anna, which was captured by a British privateer within a mile or two of some of the small mud islands at the mouth of the Mississippi, to be restored."
March 4, 1801, the Danish minister at London demanded the restitution of certain Swedish ships which had been captured by the English frigate Squirrel in Danish waters. On the 18th he demanded restitution of a French ship captured by the British mantution of certain Swedish ships which had been captured by the English frigate Squirrel in Danish waters. On the 18th he demanded restitution of a French ship captured by the British manof-war Achilles under similar circumstances. March 24 Lord Hawkesbury replied that the complaints, so far as they related to the Swedish ships, having been ascertained to be well founded, His Majesty's Government would signify in the strongest manner its disapprobation of the conduct of the offending officer, and would cause the ships in question to be released.c
Such being the duty of the belligerent, what is the duty of the neutral? Vattel cites the case of the Dutch East India fleet, which having put into Bergen, in Norway, in 1866, in order to avoid a British squadron, was attacked by the English admiral. 'But," says Vattel," the governor of Bergen fired on the assailants; and the court. of Denmark complained, though perhaps too faintly, of an attempt so injurious to her rights and dignity." The action of the governor of Bergen was within his admitted right; and it is not only the right but the duty of the neutral to cause its territory to be respected. But, if its territory is violated by the seizure or destruction of enemies' property within its jurisdiction, is it under an absolute obligation to the injured belligerent to compel the offending belligerent to restore or pay for the property, or else to restore or pay for it itself?
By various early treaties it was stipulated that if the property of either party should be captured within the jurisdiction of the other, the latter, being at the time neutral, should do its utmost to
a The Vrow Anna Catharina, 5 C. Rob. 15, 16.
Ortolan, Dip. de la Mer, II. 432.
d Lib. III, c. VII., 132.