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restore it, but at the owner's expense." Bynkershoek considered this rule unjust. If, for example, the captor should seize the property and go away, was the private person to make war to regain it? By later treaties, however, the stipulation as to the expense was omitted, and it was provided that the contracting parties should use "all the means in their power" to effect restitution. And "if," says Bynkershoek, "it is the duty of the prince to do this, even by all the means in his power, he will do it at his own expense, even by war, if no other argument (ratio) suffices." Molloy refers to a case in which the Dutch" assaulted, took, burnt, and spoiled" some English merchantmen in the neutral waters of Hamburg; " for which action," he says, "and not preserving the peace of their port, they (the Hamburghers) were by the law of nations adjudged to answer the damage, and I think they have paid the most or all of it since." с He makes no statement of the case beyond this unsatisfactory version of it.
May 12, 1675, Sir Leoline Jenkins gave the King an opinion on a memorial of the Dutch ambassador concerning the Dutch ship Postillon. (The Postillon had on board 164 pipes of Spanish wines.) It appeared that this ship, while at anchor in the English port of Torbay, on March 29, 1675, discovered four French ships making at her. She cut her cable and ran aground for better security, but the French ships then sent out four boats, manned and armed, which, under the conduct of the frigate, seized the Postillon so near to the shore that the bullets fell on land. The deputy vice-admiral went on board the French admiral's vessel, and, in the name of the King of England, demanded restitution of the ship and cargo as being unduly seized and carried away in a British port. The French admiral refused to give her up and took her away, saying that he would leave it to his King to settle the matter.
Sir Leoline Jenkins said:
That the matter of the fact was thus, I have all reason to believe, because it agrees with the information I have from Sir John
a "Article XXII. That if any Ship or Ships belonging to the People or Inhabitants of either Republick, or any neutral Power, be taken in the Harbours of either by any third Power, not belonging to the People or Inhabitants of either Republick, they in whose Port, or Offings, or Jurisdiction the Ships aforesaid shall be taken, shall be oblig'd in like manner with the other Party to do their utmost for pursuing and bringing back the said Ship or Ships, and restoring them to their Owners. But all this shall be done at the Expence of the Owners, or those whom it concerns." (Treaty of Peace and Union between Oliver Cromwell, as Protector of England, and the United Provinces of the Netherlands. At Westminster, April 5, 1654. A General Collection of Treatys (London 1732), III. 74.)
Questionum Juris Publici, Lib. I. c. VIII., "An hostem aggredi vel persequi in Amici territorio vel portu?"
c De Jure Maritimo (ed. 1701), 12.
Fowell, your Majesty's vice-admiral in those parts; and I humbly conceive it to be a violation of that security, which all parties in war ought, by the law of nations, to suffer each other to enjoy in your Majesty's ports. And as your Majesty's vice-admiral used his endeavours to prevent the said violation, so the French commander is more deeply in the wrong, in that the action here is not of a desperate caper, but of a commander of note; who being admonish'd by the proper signal and spoken to by the proper officer to forbear hostility, has more violated the reverence due to your Majesty's ports, than I have known hitherto in any case that has fallen within the compass of my observation.
"That there is a reparation most justly due to your Majesty, and to your Majesty alone in this case, is my humble opinion; yet I know not how that reparation can be reputed a full and satisfactory one, unless the ship and goods that were taken out of your Majesty's protection be restored, or else the full equivalent thereof with the damages; 'tis true the Dutch are now in a capacity to make a direct demand of such a restitution from the French, yet if the wrong doer do carry away and enjoy the fruits of his violences, and the innocent ally be forced to sit down by his loss, the the rights of ports, where every man promises to himself safety from his enemy, (as it were upon the public faith) will be thought not asserted to the full, since they consist not only in the reverence due to the Government, but in the indemnity of all parties for the punishment of an unjust violence, such as this is; and which undoubtedly belongs to your Majesty, and to your Majesty alone to punish; the affront to authority must in the first place be expiated, but then the loss to the party violated ought, as I humbly conceive, to be fully made up. However, the time and manner of demanding this reparation, is not (cannot be) prescribed by any rule of law that I know of; therefore I shall not presume to speak any thing in it; your Majesty's reasons of state, and your royal resentment, being the proper measures for this demand." a
In this opinion the measure of reparation due from the belligerent to the neutral for his violation of the neutral territory is clearly defined, but it is stated that the "time and manner" of demanding this reparation are not prescribed by any law, but must depend upon His Majesty's "reasons of state" and "royal resentment."
On the morning of the 18th of August, 1759, the Toulon fleet of seven vessels, while on its way to Havre under the command of M. de la Clue, was chased by a British fleet of sixteen ships of the line and two frigates under the command of Admiral Boscawen. A running fight ensued, and on the following morning M. de la Clue
a Life of Sir Leoline Jenkins, II. 777.
had only four vessels left the Océan, the Redoubtable, the Temeraire, and the Modeste. His position was then such that escape seemed impossible, and, being near the Portuguese fortress of Lagos, in Algarve, he determined to run his ships aground and burn them, trusting to the protection of the neutral territory for saving their crews. The Océan was the first vessel to go ashore. She was beached near the fort of Almadana, and an officer was sent to the commandant to express the hope that, if the English should attack her, he would defend her. The Redoubtable grounded near the fort of Ezaria. The Temeraire did not go ashore, but anchored near the fort of Figueras and asked for protection. Nevertheless, the Temeraire and the Modeste were attacked by the English and carried away, while the Océan and the Redoubtable, though aground, were fired on and burnt.
When Pitt first heard of this incident he hastened to instruct the British minister at Lisbon to express regret for any violation of territory which might have been committed. He was not to attempt to justify what the law of nations condemned; but if there had been an actual violation of the coasts of Portugal, it might be urged in "extenuation" that the action was begun a great way from them. Moreover, "all reasonable satisfaction" consistent with "honor " would, said Pitt, be given; but, he added, “any personal mark on a great Admiral who has done so essential a service to his country, or on anyone under his command, is totally inadmissible, as well as the idea of restoring the ships of war taken." The King would not be averse even to sending an extraordinary mission to Portugal if the circumstances should turn out to be of sufficient magnitude."
At this time the prime minister of Portugal was the famous Conde d'Oeyras, better known as the Marquis of Pomba. He represented in strong terms the injury done to Portugal, and, while refusing to accept as satisfactory the expressions of the British minister, demanded the restoration of the vessels that were carried away. This demand seems to have given Pitt much annoyance. The Earl of Kinoul was appointed special ambassador extraordinary to Lisbon, and in a "most secret" instruction to him Pitt referred to the demand for restitution as "unexpected," and said that notwithstanding the friendly and confidential " declaration of the Conde d'Oeyras" that a compliance therewith was not expected," it was attended with difficulty and inconvenience. A refusal would be made use of both by enemies and by neutrals. A total declination of discussion would look like peremptoriness, and the going far into one" would open an
a Mahon's History of England from the Peace of Utrecht to the Peace of Paris (Reed's ed.), II. 581.
Ortolan, Dip. de la Mer. II. 317.
ample and litigious field for every hireling and ill-intentioned pen all over Europe to inveigh against the naval pretensions of England, already too much the common object of envy and calumny." Under these circumstances Lord Kinoul " was not to enter into much controversial reasoning," but to " touch lightly." on the continuous character of the fight and add that English officers would be admonished to be more careful in the future." It seems that Lord Kinoul afterward, in the presence of the diplomatic corps at Lisbon, made a speech in this sense, and that the Portuguese Government investigated the conduct of the commandants of the forts at Lagos, who were charged with having made "a very feeble resistance" to the English. It does not appear, however, that anyone was punished. The French Government demanded that Portugal procure restitution of the captured ships, and her failure to do so was mentioned when in 1762 France and Spain declared war against her. But it was not the cause of the hostilities on the part of France. The war was preceded by a demand on the part of France and Spain that the King of Portugal join their alliance against England. They gave him eight days in which to answer. The Spanish declaration of war recited that neither representations" founded in justice and utility "fraternal persuasions" had been able to “alter the King of Portugal's blind affection for the English." The French declaration recited the alliance between France and Spain "to curb the excessive ambition of the English Crown; their "invitation" to the King of Portugal to join their alliance; his "suspicious and dangerous neutrality;" Spain's "motives of the most tender friendship and affinity;" the Portuguese King's "blind devotion to the will of England," and the fact that "moderation" had been "thrown away" on him. Independently of these common motives each government had, said the French declaration, separate grievances, and it then referred to the demand for the restitution of the ships and to an attempt on the part of the Portuguese court to regulate the precedence of ambassadors by the date of their commissions."
a Mahon's History of England, II. 581–582.
Flassan's Diplomatie Française, VI. 179, 467.
c Annual Register, 1762 , . "Everyone knows the utmost and violent attack made by the English, in 1759, on some of the (French) King's ships under the cannon of the Portuguese forts at Lagos. His Majesty demanded of the most faithful king to procure him restitution of those ships; but that prince's ministers, in contempt of what was due to the rules of justice, the laws of the sea, the sovereignty and territory of their master (all which were indecently violated by the most scandalous infraction of the rights of sovereigns and of nations), in answer to the repeated requisitions of the king's ambassador on this head, made only vague speeches, with an air of indifference that bordered on derision." (The French King's declaration of war against Portugal, Versailles, June 20, 1762. Annual Register, 1762, p. .) See
In 1781, during the reign of Louis XIV., an English squadron commanded by Commodore Johnstone was, while at anchor at Porto Praya, in the Cape Verde Islands, in the dominions of Portugal, attacked by a French fleet under the command of M. De Suffern. Neither side took any prize from the other, and after the attack was over M. De Suffern, who had been resisted by the Portuguese forts as well as by the English ships, continued on his course. He subsequently received the approbation of his Government; perhaps, says Ortolan, in retaliation for the action of the English at Lagos. It seems that he was a lieutenant on the Océan on that occasion, and was carried a prisoner to England."
By the foregoing precedents it appears (1) that the commission of hostilities by one belligerent against another in neuRosults of prece- tral territory is a violation of the law of nations; (2) that such violation involves an offense to the neutral nation, and that reparation from the offending belligerent is due to that nation alone; (3) that, if property was captured, it is the duty of the offending belligerent to restore it on the demand of the neutral; (4) that nations have by numerous treaties pledged themselves as neutrals to use "all the means in their power" to protect or effect the restitution of property in such cases; but (5) that the manner in which this obligation must be discharged was not ascertained either by any express rule or by any general understanding. Turning to the diplomatic history of the United States, we find that the character of the obligation in such cases has American prece- on certain occasions, when that Government held the position of a neutral, been specifically discussed and defined. By early treaties with France, the Netherlands, and Prus sia, the United States bound itself by a reciprocal engagement to endeavor "by all the means in its power" to protect and defend in its ports or waters, or in the seas near its coasts, "the vessels and effects" belonging to the citizens of the other parties, and to "recover and restore" to the right owners any such vessels or effects as should there be taken from them. In the first war of the French Revolution the Government of the United States, being neutral, received complaints of the seizure of British vessels by French cruisers within its jurisdiction, as well as of the sale within its jurisdiction of British vessels which were captured on the high seas by French cruisers Flassan, Diplomatie Française, VI. 182. Lord Mahon, referring to the French and Spanish declarations, remarks: Never was any aggression more destitute I will not say of good reason-but even of plausible pretext." (History of England, II. 457.)
a Dip. de la Mer. II. 320.
France, February 6, 1778, Art. VII.; Netherlands, October 8, 1782, Art. V.; Prussia, September 10, 1785, Art. VII.