RIGHT OF A BELLIGERENT ON THE HIGH SEAS. 139 Protocol No. 24. annexed to that Declaration-Territorial Theory of Hübner-Doctrine of Martens-Bynkershoek's and Lampredi's Objections-Manning's Refutation of Hübner's Theory-The Passport, the true criterion of a ship's national character-The Sea Letter-It is conclusive of the national character of a merchant ship-Belligerent right of visitation and search-Case of the Swedish Convoy-Vattel-Chancellor Kent-Convention of the Baltic Powers in 1801-Wheaton-Right of Approach-Regulation of the right of visitation and search-Rule of an Affirming Gun -Lampredi's view-Mr. Justice Story's opinion-General Halleck-Sir Robert Phillimore-Heffter-Treaty of the PyreneesPractice of Nations as to ship's papers-Builder's Contract or Bill of Sale-Certificate of Registry, if required by Municipal LawNecessary cargo-papers-Ship's manifest and bills of ladingCharter-party-Absence of ship's papers or of cargo papers justifies the detention of a vessel for enquiry-Right of DetentionNeutral merchant vessel may not sail under convoy-Chancellor Kent-Wheaton-A neutral merchant may not embark his goods in an armed ship of the enemy, according to the judgment of the British Prize Courts-The Prize Courts of the United States in conflict with British Prize Courts on this subject. intercourse $72. THE open Sea is not capable of being Maritime reduced into the possession of any Nation, and of nations. accordingly can never become part of the territory of a Nation. There is therefore no juridical objection ratione loci to a Nation freely prosecuting its Right by force against another Nation upon the open Sea. Sea. On the other hand, all Nations are entitled to the free use of the open Sea for the purposes of innocent Navigation; and no Nation. can claim with reason to prosecute its Right by force against another Nation upon the open Sea in such a manner, as to interfere with the innocent Navigation of it by other Nations, which are not parties to the contention. It is obvious, however, when two Nations are contending by force in the prosecution of Right, that their relations, as belligerents, will differ essentially from the relations of Object of war. Nations which are at peace with one another; and in order that the Navigation of the open Sea by other Nations at such a time should have an innocent character, it must be so conducted as not to work any prejudice to the contention of either belligerent, as such. The conditions, therefore, under which Nations may innocently navigate the open Sea in time of war, will differ very materially from the conditions under which they may so navigate it in time of peace; and although there may be no conflict of principle between those conditions, the reason of the thing suggests that the maritime intercourse of Nations in time of war will be governed by very different rules from those which prevail in time of peace. § 73. The primary object of War being the reparation of damages, War for the most part implies Reprisals against the property of an enemy. But War differs so far from Reprisals, that whereas the latter are grantable against the ships and goods of an enemy ad damni dati modum et damnorum consequendorum causa, and all Reprisals, as distinguished from War, cease, when full satisfaction has been obtained; War, on the other hand, may contemplate, in addition to redress, the punishment of injustice or violence, and the taking of security against future injury, by depriving an enemy of some part of his property or possessions. Again War may be undertaken to prevent injustice or violence; in which case there will be no place for Reprisals as such, but the belligerent will be entitled of Natural Right to deprive his enemy of everything which tends to augment his strength and to enable him to do injustice or violence. Every belligerent endeavours to accomplish this object in the manner most suitable to himself; and whenever an oppor on tunity presents itself, he takes possession of the property of his enemy and confiscates it to his own use, thereby diminishing his enemy's power to carry on the war, whilst he secures at the same time to himself an equivalent for the expenses and losses incurred in the prosecution of it'. The movable property equally with the houses and lands of an Enemy-Nation is accordingly liable to be taken by a belligerent and confiscated to his own use, not merely when such movable property is found within the territory of an enemy, but when it is found on Enemy's the High Seas, there being no juridical impediment property ratione loci to a belligerent seizing the property of high seas. his enemy in a place which is nullius territorium. If a belligerent cruiser accordingly meets a merchant vessel on the open Sea, and the vessel or its cargo belongs to an enemy, it is consistent with the primary object of all war, that the belligerent should do justice to himself by taking possession of his enemy's property and converting it to his own use. Property so taken by a belligerent from an enemy on the high sea is termed prize (prise) of war, whilst property taken from an enemy on land is termed booty (butin) of war2. No juridical difficulty can arise when the property of an enemy found on the high sea is not mixed up with the property of a neutral; but it may happen in the case of a ship and its cargo, that the ship itself is the property of several owners, one or more of whom are the subjects of a Neutral Power; or the vessel may be the property of a neutral merchant and the cargo the property of an enemy; or the vessel may be enemy's property, and the cargo neutral property; or the cargo may be 1 Vattel, L. III. c. 161. 2 The French word Butin is supposed to be a diminutive of the Low German word Bute. of Admiral. owned in part by an enemy and in part by a neutral. When movable property is found in the territory of an enemy, the locus in quo determines the right of a belligerent to take possession of it, for everything which is in the territory of an enemy is prima facie appurtenant to his territory, Quicquid est in territorio est de territorio; but as the open Sea cannot become the territory of any Nation, no similar rule can determine the right of a belligerent to take possession of a ship or its cargo on the open Sea, and the ownership of the property thus becomes the test of its liability to make good the damages and expenses of the belligerent, and of his right to take possession of it. § 74. If we go back to the early Laws of the The office Sea, we find the juridical distinction taken between armed vessels and merchant vessels. An armed ship might be simply navigating the high sea or cruising (en course). If an armed ship was cruising, she was engaged in making reprisals or in making war, the expression originally made use of in Letters of Marque being the same as in the ancient formulary of declaring war, which enjoins all subjects courir sus à l'ennemi. But this expression was borrowed from an earlier state of things, when the police of the High Seas was maintained by voluntary associations amongst merchants. In the state of wild anarchy, to which the navigation of the High Seas was subject after the breaking up of the Roman Empire, when the Norman sea-rovers infested the North Sea and the Baltic, and the Saracens and Greeks covered the Mediterranean Sea with piratical vessels, every merchant ship navigating the High Seas with a valuable cargo was liable to pillage. It was in vain for the plundered trader to prefer his complaint to the Sovereign of the country, from which the piratical vessel had been fitted out; the Sovereign was either too feeble to do justice upon the criminals, or was conniving at their crimes. Merchants accordingly were obliged to associate themselves together for mutual protection; and their vessels sailed forth in fleets, of which a chief was elected, called the Admiral. The rule of these Associations was in the first place mutual defence, and secondly joint participation in all prize, which might be made in the conduct of such mutual defence. Every vessel of a fleet was bound to obey the Admiral, not merely as a leader in battle, but as a judge in dividing the prize made from the enemy; and the usages of such Associations in their expeditions against pirates, for they fitted out at times fleets of armed vessels expressly to cruise after pirates (per la guerra del corso), came by degrees to be the usages of Nations in their warfare on the High Seas. Such a result seems to have been brought about in this manner. Independent Princes were fain to enlist into their service the armed fleets of these voluntary Associations, when the occasion presented itself of attacking an enemy by sea, or the necessity arose of defending themselves against any attack by sea. Thus there was a mercantile Association at Pisa, called the Umili, which was constituted after the likeness of an independent State3, waging war and making conquests with a military marine of its own. It lent its powerful aid to the Princes of Austria in A.D. 1188, and obtained from them in return special privileges for the Company. But in enlisting the 3 The British East India Company was a striking instance in modern times of a voluntary association of merchants exercising, amongst other attributes of an independent State, the right of making war and peace. 4 Muratori Antiq. Ital. Medii Ævi, Tom. II. col. 910 et seq. Pardessus, Tom. II. Introduction, p. 127. |