66 "Upon the conceded facts thus far stated the propriety of the condemna tion admits of no serious question. "It is said however that restitution to the owners should have been decreed because the Washington passed into the hostile service by the barratry of her master, and 2d that the seizure and employment of her by the insurgents were piratical. "It is not denied that the master of the Washington was in conspiracy with the revolutionists to whom he voluntarily surrendered her. Assuming that the owners of the steamer were guiltless of any complicity with the master, the question is how does his conduct, criminal both as respects the Ecuadorian Government and the owners, affect the rights of the latter? 'It is doubtless true that the owners of a ship are often held responsible for offences committed by the master against belligerent rights, so as to involve the forfeiture of the vessel and sometimes even personal damages in addition, although they neither commanded nor knew of them. "I think, however, that such cases will be found to have in them this element, viz, that the acts were such as the master could have supposed himself to be doing in the course of his general employment, and in the interest of his owners. The abandonment of the ship to pirates or to mere insurgents can hardly be brought into this category. Then these are maritime instances, and it seems to me there is such a difference between the very large authority and discretion necessarily entrusted to the master of a seagoing vessel, and that which suffices for short river voyages, as to justify a corresponding distinction in the liability of the owners for his acts. At sea, out of reach of his owners, and of courts, he may be taken to represent them in a much ampler sense than on a river. "I am bound to say however that this view of the case does not strike 66 me as so irresistible that I could characterize an opposite determination by any judicial tribunal as manifesting such flagrant disregard of law and justice, as to lose its title to respect and submission. 'Let us suppose that we had permitted a steamer, owned about half by English residents of Baltimore, and commanded by such a resident, to ply between that port and City Point, at the time of the outbreak of the late rebellion; the steamer to have been surrendered by him to rebels in the James River; to have been armed by them and to have captured one of our small cruisers in the Potomac; to have been subsequently captured by us and brought before a prize court. The evidence wholly failing to inculpate the owners who intervene and ask a restitution of the vessel, the court may be supposed to say: "Public policy requires that those who entrust a steamer, capable of the mischief which this has wrought, with the power to put her into a position to do that mischief, should be answerable for the conse quences of his acts, though not contemplated, or approved by them. True, we find no evidence of their complicity, and this act, as it turns out, was manifestly opposed to their interests. But, if the captain was acting in conformity with their secret instructions, or with their real, though unexpressed desire, it would always be a matter of the greatest ease to conceal the proofs. A consideration of the general interest in having a plain rule capable of ready practical application, must override that of occasional hardship to the innocent.' * Would such a decision be so manifestly outrageous, as to authorize Great Britain to declare that it could not have proceeded from error but must have been dictated by interest, malice or wilful disregard of universal principles of justice? I think not. "I attribute no consequence whatever to the fact that the Ecuadorian Government denounced the seizure as piratical, nor does it seem important to enquire whether in truth it was piratical either under the municipal law, or the law of nations. It was a naval operation for a political insurrection. That it so overstepped the limits which nations prescribe to themselves in the prosecution of war, as to be piratical also, does not seem to me so to restrict the rights which the capturing government may assert in its discretion, or waive in its generosity. "This I think disposes of any question under article 10 of our treaty with Ecuador. That must I think be understood to refer to cases of simple piracy, unconnected with insurrection or belligerency in any form. "I understand the rule to be that before a nation intervenes in behalf of its citizens domiciled abroad whose rights have been passed upon by a judicial tribunal, it is required, 1st. That he should have defended those rights himself and done what was in his power to enlighten the court. 2d. That he should prosecute the case through all the appellate tribunals to that of last resort, so that it may appear that no farther remedy is left to him in the courts. 3d.-That the final decision should be not merely erroneous, but so flagrant as to shock the moral sense and beget the conviction that the court could not be supposed to have acted from mistake of judgment but have wilfully disregarded plain rights. "Our citizens who go to reside under foreign jurisdictions, go there to take such law, and such modes of administering it, as are dealt to native subjects, however imperfect they may be-except in such countries as China, Japan, &c., where special treaties relieve them of the obligation. "In this case there is no pretence that the injustice alleged is aimed at American citizens as such, for a majority of the owners of the Washington are Ecuadorians. "On the whole, I think, that our minister should desist from farther discussion until, after final judgment in the court of last resort, he has reported its decision and the reasons it may assign, and has received such instructions as the case may then seem to require. "If it were practicable to advise the American owners of the Washington, I should recommend them to offer to the Ecuadorian Government the same salvage (3 of the value) which that Government offered for the recapture of its warship captured by the Washington, and ask restitution on those terms, before the prize court had reviewed the judgment in the first instance. It is unreasonable (dismissing all question of legal rights) that the government should bear the expense of restoring to the owners a ship of which they had been deprived by their own agent. The salvage is probably quite insufficient to reimburse Ecuador for the expenses to which it has been subjected. "Approved. "WILLIAM H. SEWARD," 66 15. A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure; but not when she is a mail packet and carries them in the regular and customary manner, either as a part of the mail in her mail bags, or separately, as a matter of accommodation and without special arrangement or remuneration. The voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade." Instructions to United States Blockading Vessels and Cruisers, General "When a person belonging to a neutral state takes permanent civil or military service with a foreign state he identifies himself so fully with it that he becomes the enemy of its enemies for every purpose. When he merely contracts to do specific services, he becomes an enemy to the extent, and for the purposes, of those services." So a neutral may so identify himself or his property with a possible or intending belligerent that hostilities may even be opened by an attack on him or by the capture of his property. Hall, Int. Law (5th ed.), 501, 502. On July 25, 1894, about 7 a. m., a Japanese squadron, cruising off the Corean coast, before declaration of war, was attacked by Chinese warships which had been convoying reinforcements to Asan. About 9 a. m. the Kowshing, a British vessel, carrying further Chinese reinforcements for Asan, appeared on the scene. The Japanese cruiser Naniwa signaled her to stop and sent a boat aboard, and, finding that she was carrying 1,200 Chinese troops, with several generals, including the German major, von Hanneken, asked the captain to follow the Naniwa to Japan. The captain assented, but the Chinese officers by force and threats restrained him. The Naniwa, then, after some parleying, warned those on board to quit the vessel, and afterwards fired into and sank her. Most of the Europeans were picked up by the boats of the Naniwa. As soon as the facts could be fully ascertained, Professors Holland and Westlake both took the ground, in the face of much popular excitement, that at the time of the sinking of the Kowshing a state of war de facto existed between China. and Japan; that the Kowshing, as a neutral ship engaged in the transport service of a belligerent, was liable to be visited and taken in for adjudication, with the use of so much force as might be necessary; that, as one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, she was clearly part of a hostile expedition, or one which might be treated as hostile, which the Japanese were entitled by all needful force to arrest; that the force used did not appear to be excessive, either for the capture of an enemy's neutral transport or for barring the progress of a hostile expedition, and that, as the rescued officers were duly set at liberty, no apology was due to the British Government and no indemnity to any person. Holland, Studies in Int. Law, 126 et seq. 5. TRANSFER OF ENEMY SHIPS TO NEUTRALS. (1) PUBLIC SHIP. § 1187. A bona fide purchase for a commercial purpose by a neutral in his own home port, of a ship of war of a belligerent that had fled to such port in order to escape from enemy vessels in pursuit, but which was bona fide dismantled prior to the sale, and afterward fitted up for the merchant service, does not pass a title above the right of capture by the other belligerent. The Georgia, 7 Wall. 32. See, also, The Georgia, 1 Lowell, 96. (2) MERCHANT VESSELS. § 1188. It was alleged that a violation of the act of February 27, 1800, suspending commercial intercourse between the United States and France, had been committed by selling an American vessel to an innabitant of St. Thomas, with a view to its being used in trade with the French island of Guadaloupe. Marshall, C. J., delivering the opinion of the court, said that the building of vessels in the United States for sale to neutrals during war was a profitable business which, in the absence of a clear intention, it could not be supposed that Congress intended to prohibit. He further declared that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and, consequently, can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country." He held that no violation of the act of Congress had been committed. Murray r. Schooner Charming Betsey (1804), 2 Cranch, 64, 118. A citizen of the United States may purchase a ship of a belligerent power, at home or abroad, in a belligerent port, or on the high seas, provided the purchase be made bona fide, and the property be passed absolutely and without reserve; and the ship so purchased becomes entitled to bear the flag and receive the protection of the United States. Neutrals have a right to purchase ships of belligerents. Cushing, At. Gen., 1854, 6 Op. 638; 1855, 7 Op. 538. "The law of nations secures to neutrals unrestricted commerce with. the belligerents, except in articles contraband of war, and trade with blockaded or besieged places. With these exceptions commerce is as free between neutrals and belligerents as if it were carried on solely between neutral nations; and it is difficult to conceive upon what principle an exception can be made and the neutral deprived of the rights secured in regard to the purchase of merchant vessels. "It is true a regulation of France has been referred to in support of the doctrine avowed by the Imperial Government, but it is hardly necessary to observe that a municipal law of that country can only affect persons under its control, and can have no binding force beyond its territorial limits. The parties who made the contract for the sale and purchase of the ship St. Harlampy were not under the jurisdiction of the municipal law of France; on the contrary, they were both within the jurisdiction of the United States as well as the property which formed the subject of the transaction. The validity or invalidity of the transaction can be determined only by the local or international law. It was a contract authorized by the laws of this country and the law of nations; and it was supposed to be universally conceded that such a contract would be respected everywhere. Certainly no government except that under which the contract was made could interpose to destroy or vary the obligations which its provisions impose if not contrary to the law of nations. This is the doctrine of the European publicists, and it is especially sustained by Hautefeuille, whose authority will, I doubt not, be recognized by the Emperor's Government. He says, 'It is impossible to recognize such a right as that claimed by the regulation of France.' Commerce,' he adds, is free between the neutral and belligerent nations; this liberty is unlimited except [by] the two restrictions relative to contraband of war, and to places besieged, blockaded, or invested; it extends to all kinds of provisions, merchandise, and movable objects without exception. Pacific nations can then, when they judge proper, purchase the merchant ships of one of the parties engaged in hostilities, without the other party having the right to complain, without, above all, that it should have power to censure, to annul these sales, to consider and treat as an enemy, a ship really neutral and regularly recognized by the neutral Government as belonging to its subjects. To declare null and without obligation a contract, it is indispensable that the legislator should have jurisdiction over the contracting |