Embracing a
synopsis of the leading British Authorities as to the first proposed
Instruction.
The general rule of International Law, as received and
expounded in the British Prize Courts, as to the restrictions and limitations
imposed by it upon the lawfully commissioned belligerent cruiser, in the use of
neutral ports or other waters, with a view to the prosecution outside of their
limits, of his belligerent operations against the adverse belligerent, or the
exercise of his belligerent rights on vessels claiming to be neutral, is summed
up by Phillimore (citing his authorities) in the following terms: (Int. Law,
Vol. 3, pp. 451-452)
"It has been already shown, in preceding
portions (1.) of this work, that it is not competent to a belligerent to
exercise any Rights of War within the territorial jurisdiction of a neutral State
(m.), and that this jurisdiction extends not only within ports, headlands and
bays, but to a recognized distance at sea from the shore itself. Thus, captures
made by armed vessels stationed in a river of a Neutral Power, or in the mouth
of his river, or in his harbors, for the purpose of exercising the Rights of
War from that river or harbor, are invalid; and where a belligerent ship, lying
within neutral territory, made a capture with her boats, sent out of the
neutral territory, the capture was also held to be invalid; for though the
hostile force employed was applied to the captured vessel lying out of the
territory, yet no such use of a neutral territory for the purpose of war is to
be permitted. (n.)
All captures therefore made by
belligerents within these limits are, at the request of the Government of the
Neutral State, (o), pronounced by Courts of International Law, to be invalid.
(n) The Twee Gebroeders, 3 Robinson, p.
162, leading English case. The Anna, 5 ib., p. 373. The Vrow Anna Catharina,
ib., p. 15, see the arguments of the counsel in the Topaz, 2 Acton's Adm. Rep.
p. 20.”
The above statement of Phillimore, its brevity being
considered, is very exact, but he does not introduce into it all the exceptions
to its vigorous application which appears clearly in the cases adjudicated by
Lord Stowell, which he cites as his authority. It will be observed, however,
that in order to bring his act within the rule of prohibition, as laid down by
Phillimore, the lawfully commissioned belligerent cruiser must have his vessel stationed
in the neutral water or harbor, and stationed there for the
purpose of exercising the rights of war from that place. Now, neither this
government nor its Naval Commanders have ever thought of infringing this rule,
by so stationing its cruisers for such purpose. The importance of
the distinction between the use made by the belligerent of a neutral port or
water in the course of an occasional visit or sojourn there, and the use
of the same place by him as a station from which habitually to
exercise his rights of war, is emphatically set forth by Lord Stowell, in the
case of the Anna Catharina (5 Robinson, p. 18) as follows: —
"If the fact had been that the
privateer had made this capture in a neutral port, or whilst lying in harbor,
as was done in some of the ports of the North, with a view of making that
harbor an habitual station for captures, I should have concurred in
reprobating such a practice in the strongest terms; but, if whilst a
privateer is accidently lying there, she sees an enemy approaching, she
may go out and capture, I conceive, without any violation of the peace or
immunity of the neutral port, provided this is done beyond the limits of the
port.”
In the case of the Twee Gebroeders (3 Robinson, pp. 164-165)
where the vessel lay within the neutral waters and sent her boats just outside
of them to make the capture, Lord Stowell emphasized the same distinction, and
said: —
“You are not to avail yourself of a
station on neutral territory, making as it were a vantage ground of the
neutral country, a country which is to carry itself with perfect equality between
both belligerents, giving neither the one nor the other any advantage. Many
instances have occurred in which such an irregular use of a neutral
country has been warmly resented, and some during the present war: the practice
which has been tolerated in the Northern States of Europe, of permitting French
privateers to make stations of their ports, and to sally out to capture British
vessels in that neighborhood, is of that number.”
In the same case he said: —
“I am of opinion that no use of neutral
territory for the purposes of war is to be permitted. I do not say remote
uses, such as procuring provisions and refreshments, and acts of that nature,
which the law of nations universally tolerates; but that no
proximate acts of war are in any manner to originate on neutral grounds;
and I cannot but think that such an act as this, that a ship should station
herself on neutral territory and send out her boats on hostile enterprises,
is an act of hostility much too immediate to be permitted.”
Now, is it not here too evident, that if the belligerent
cruiser may lawfully use the neutral port to get" provisions and
refreshments," he may certainly use it to get information, and may not
only in "appearance," but in "reality," "watch "
carefully, in order to obtain information. Nor is the slightest information
here given that the belligerent cruiser may not under public law, in the
absence of municipal regulation to the contrary, take his departure from the
neutral water just when he pleases, either following or accompanying any vessel
which may see fit to sail out at the same time.
But this position is by no means left to mere inference. In
another case of similar name, The Three [=Drie] Gebroeders (5 Rob. pp. 339 [et
seq.]), Lord Stowell held, in express terms, that a capture was not
vitiated by the capturing ship having passed through neutral territorial waters
in order to accomplish the capture outside of the neutral limits. This is the
very point. The belligerent cruiser may under public law, if unforbidden by
municipal regulation, rightfully sail out of the neutral port in order to
accomplish his capture in a lawful place.
Indeed, so well established is this right of departure at
pleasure, unless municipally forbidden, either at the same time with or just
after, even an adverse belligerent, and still more along with or just
after a commercial vessel under a neutral flag, that Great Britain herself has
held it to be necessary, in her general order in reference to her Bahama ports,
to forbid, municipally, such departure by the belligerent cruiser, along with,
or immediately after, a vessel of the adverse belligerent; but while making
this stringent regulation, rendered necessary because there was in the public
law as accepted by Great Britain, no such rule nor restriction, the British
Government has wholly abstained from imposing in that municipal regulation any
such restriction or rule in relation to neutral vessels in their departure from
the harbor, being accompanied, or immediately followed, by the belligerent
cruiser.
It is useless to pursue the examination of this point
farther. There are other cases in the British books, but they all speak with
the same voice. The Prize Courts of Great Britain have never upon any occasion
pretended to assert that under the Public Law, and in the absence of municipal
regulation to the contrary, any lawfully commissioned belligerent cruiser
occasionally visiting a neutral port and for a reasonable length of time
sojourning there, may not in a peaceable manner watch any neutral commercial
vessel there, and at his pleasure follow such vessel out of that port in order
to do, upon the high seas, upon her any act which, at any time, may upon her be
there lawfully done.
It is true that some of the Continental publicists,
especially Hautefeuille, Galiani, Azuni and of course HΓΌbner, — all avowedly impassioned champions of
neutral rights, have in their speculations in their closets, as to what
international law is, or in their judgment ought to be, gone farther. Lawrence
has collected some of their dicta in this sense in his last edition of
Wheaton, at page 767, and Lawrence's comments show that he leans too much in
their direction. But their dicta, as cited by him, are not law, and by
Prize Courts in Great Britain and the United States, at least, have never been
received or applied as law. It is true that in our past history the United
States has been almost as ardent a champion of the enlargement of neutral
rights as Hautefeuille himself; but it must not be forgotten that our policy in
that direction has always proceeded in the methods of attempted treaty
stipulations, in order to change the harsh fixed rule, upon the basis of
reciprocity. In the present case there is nothing either of such method or such
basis. Our policy would, therefore, seem to be to maintain, undiminished, our
belligerent rights as they stand in Public Law.
The quotation above given from Phillimore proves clearly
that whenever any act is done by a lawfully commissioned belligerent cruiser,
which infringes the right or immunity of a neutral port, no one in the Prize
Court of any other nation can be lawfully even heard to make suggestions of
such infringement, save only the neutral sovereign of the Port himself, through
his agent authorized ad hoc.
It is also to be observed as a rule of Public Law too well
settled to require either elucidation or citation of authority, that whosoever
is injured in any manner, in a case of capture by a lawfully commissioned
belligerent cruiser, who sends the prize vessel in for adjudication, is bound
in law to seek in the proper manner his remedy in the Prize Court; and if he
thinks that justice is not done him by such court of primary jurisdiction in
the case, then he is bound in law to pursue and exhaust his judicial remedy by
appeal, — and this under penalty of being held to acknowledge the justice of
the sentence of the Court below, unless he does so appeal to the Appellate
Court. And it is altogether irregular for him, or his Government, being
neutral, in his behalf to make Diplomatic demand for reparation in his case,
until his judicial remedy be thus exhausted; and this is confidently believed
to be the inexorable judgment of the British Government, in relation to all
such Diplomatic reclamations, when so prematurely addressed to itself as a
belligerent.
As to the Second proposed Instruction.
Phillimore (Int. Law. Vol. 3, p. 602.) says:
"And indeed, in ordinary cases,
the prize crew, whether national, neutral or hostile, are necessary witnesses
in the cause. (r.) And upon further proof ordered the attestation of the claimant
and his clerks, and the correspondence between him and his agents, are admissible
evidence and proper proofs of property." (s.)
(r.) The Henrick & Maria, 4 Rob. p. 43, (s.). The
Adelaide, 3 Ad. p. 281. The Henrick & Maria, thus cited by Phillimore, was
a neutral (Danish) vessel, captured by a British cruiser for alleged attempt to
break blockade, — released by Lord Stowell, for want of previous knowledge or
due notification. Incidentally came up the question, what persons the Court had
a right to have within its reach, in the adjudication of such a case, and Lord
Stowell said: —
“Prisoners are accessory witnesses to
be examined; according to our instructions, they are the only witnesses. The French
regulations admit the evidence of the captor, but hold at the same time that
natural justice requires the crew of the captured vessel should be examined
touching the rights in question.”
LaPurissima Conception1 (5 Rob. p. 40) is still stronger. A neutral
(Spanish) vessel captured with scarcely justifiable cause by a British
privateer, who sent her in with her whole ship's company, 22 in number, all in
irons. Released at once and captor mulcted in 100 pounds sterling for his
cruelty in so confining the captured persons without showing to the Court that
such rigor was necessary for his own security, or that of his prize. Stowell
found no fault with him for bringing them all in, — assumed indeed that he had
a right to do so, and to handcuff or otherwise confine so many of them as he
could show to be needful for his security. The case therefore stands as full
authority for the perfect right of the captor to send in with his prize, being
under a neutral flag, all her ship's company.
It is needless to cite other cases to show on this point the
rule of International Law, as expounded and applied in the Prize Courts of
Great Britain.
It may be added, however, that in other passages of his work
(see Vol. 3, p. 590) Phillimore speaks of the “captured crew,” as in due course
“brought in,” and says that “the examination” must be confined to “persons on
board at the time of the capture,” unless otherwise ordered by the Court.
Upton, in the latest and fullest, and upon the whole, the
most accurate Manual on Prize Law and Proceedings in the English language,
which the Supreme Court in its latest judgment in prize cited as authority,
lays down the settled rule of International Law upon this point, as established
in the practice of our Prize Courts, in the following terms: —
“The general rule in relation to the
duty of captors towards the persons captured on board the vessels taken, is to
send "them in with the prize as witnesses in the proceedings in
adjudication.”
Indeed are we not ourselves fully committed to the doctrine
that in the case of the "Trent" it was the right, under the public
law as expounded by Great Britain, of Admiral Wilkes to capture that ship and
send her in, with all on board, and that his omission, under the circumstances
of the case, to do so, was an irregularity?
_______________
1 Sic
Phillimore and Robinson.
SOURCE: Gideon Welles, Diary of Gideon Welles,
Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30,
1864, p. 461-6
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