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Denmark and the United States protested. The British Government held that by modern law provisions are contraband whenever the depriving of an enemy of these supplies is one of the means of reducing him to terms. Here, in this argument, we are getting on more legitimate ground than the old motive of plunder. We are leaving the claim to use war as legalized brigandage and taking our stand on the right of a belligerent to prevent aid or succor in any shape from reaching his enemy—a much more respectable position, to say the least of it. The argument in the case of England was supported by the fact that the French Government had armed almost the whole French nation—and had established a virtual monopoly of the corn trade, but this was merely an extension of the principle laid down by the British Court of Admiralty, and in so far as it was a valid justification, its effect was to limit the use of the weapon of interception, or control of commerce, to nations where conscription or government control of food was in force.
On the British side it could be contended that it was not an invidious rule, but the revival of a practice recognized in many treaties of the seventeenth century. But, as we have seen, the United States objected. Jefferson wrote: “Such a stoppage to an unblockaded port would be so unequivocal an infringement of neutral rights, that we cannot conceive it will be attempted.” As the law stood Jefferson had a strong case. For in the absence of express treaty stipulations the law, as stated by the law officers in 1753, was good law and we may put aside for the moment the argument derived from the general mobilization of the French nation, for as we have seen this is a limiting argument, and look frankly at the conflict of claims.
There are no two nations which have a greater respect for the rights of property and the liberty of the subject than America and Great Britain. But there are also no more practical nations than those which form the two great branches of the Anglo-Saxon race, and they are quick to recognize that conditions may change in such a manner that the logical exercise of a right is out of date, and that rights which grew up under different conditions, call for a new interpretation suited to the changes brought about by human progress. Slavery was once a legal right in America—it has ceased to be so. The protection
of property and the liberty of the individual are guaranteed by the 5th amendment to the American Constitution, but the American Statute Book contains laws intended to limit such rights—in such a manner that the right of one party shall not be another's wrong. Here then we were in presence of two conflicting claims. On the one side we had a claim to use sea power not for purposes of plunder—but as a weapon of war for the purpose of bringing the enemy to terms. Sea power was to be used to intercept supplies and control commerce— but not to plunder commerce. On the other side was an appeal to a legal right which had been long established. The matter was very properly referred to negotiation and compromise, and the negotiations resulted in the famous Jay Treaty of 1794. The 18th Article of that treaty reads as follows:
In order to regulate what is in future to be deemed contraband of war, it is agreed that under the said denomination shall be comprised all arms and implements serving for the purposes of war, by land or by sea, such as cannon, muskets, mortars, petards, bombs, grenades, carcasses, saucisses, carriages for cannon, musket rests, bandoliers, gunpowder, match, saltpetre, ball, pikes, swords, head pieces, cuirasses, halberts, lances, javelins, horse furniture, holsters, belts, and generally all other implements of war, as also timber for ship building, tar or rozin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted; and all the above articles are hereby declared to be just objects of confiscation, whenever they are attempted to be carried to an enemy.
And whereas the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise: It is further agreed that whenever any such articles so becoming contraband, according to the existing laws of nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the captors, or, in their default, the Government under whose authority they act, shall pay to the masters or owners of such vessel the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage incident to such detention.
This treaty was concluded by George Washington, John Jay, William Pitt, and Lord Grenville.
In 1803 a treaty was concluded between Great Britain and Sweden. The following is the Second Article of that Treaty:
Les croiseurs de la Puissance bélligerante exerceront le droit de detenir les batimens de la Puissance neutre allant aux ports de l'ennemi avec des chargemens de provisions ou de poix, résine, goudron, chanvre, et généralement tous les articles non manufacturés, servant à l'équipement des bâtimens de toutes dimensions, et également tous les articles manufacturés servant à l'équipement des bâtimens marchands (le hareng, fer en barres, acier, cuivre rouge, laiton, fil de laiton, planches, et madriers, hors ceux de chêne et esparres, pourtant exceptés); et siles chargemens, ainsi exportés par les bâtimens de la Puissance, neutre, sont du produit du territoire de cette Puissance, et allant pour compte de ses sujets, la Puissance belligérante exercera dans ce cas le droit d'achat sous la condition de payer un benefice de dix pour cent sur le prix de la facture de chargement fidélement déclaré, ou du vrai taux du marché soit en Suede soit en Angleterre, au choix du propriétaire, et en outre une indemnité pour la détention et les dépenses nécessaires.
Here then we find the system of preemption defined, and legalized. Manning (Law of Nations), after referring to the older treaties of the seventeenth century, says:
In this country, although some of the treaties [i.e. seventeenth century treaties] above quoted show that our government formerly recognized the right of Pre-emption in its most comprehensive scope, yet such exercise of the right has, with us, long fallen into disuse. Pre-emption is confined in our practice to those instances where goods are of that description that their transport to our enemy would be manifestly to our disadvantage, while, on the other hand the law of Contraband does justify their confiscation. “Pre-emption,” said Sir William Scott, “is no unfair compromise, as it should seem, between the belligerents’ rights, and the claims of the neutral to export his native commodities, though immediately subservient to the purposes of hostility.”
In the case of the Haabet, Lord Stowell (Sir William Scott) said:
The right of taking possession of cargoes of this description, Commeatus or Provisions, going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent nations. The ancient practice of Europe, or at least of several maritime States of Europe, was to confiscate them entirely; a century has not elapsed since this claim has been asserted by some of them. A more mitigated practice has prevailed in later times of holding such cargoes subject only to a right of pre-emption, that is, to a right of purchase upon a reasonable compensation, to the individual whose property is thus diverted.
1 The Haabet (No. 1), 2 C. Rob. 174; 1 Roscoe's Prize Cases, 212. See p. 214.
The reasoning of Manning and of Lord Stowell seems unanswerable and is a confirmation of the wisdom and justice of the Jay Treaty and the Swedish Treaty. But since the great Revolutionary and Napoleonic wars many things have happened. Conscription has become universal in Europe. Even in times of peace. For years Europe has been in presence of the “Nation in Arms’’: nor has the organization for war stopped at the military forces. The railways—the means of production and distribution of all commodities—have been so arranged as to pass under what is virtually government control immediately on the outbreak of war. Contemporaneously with the changes in organization there have been changes in the material of war. Science has not been idle, and the best brains in Europe and America have been applied to utilizing all the resources of chemistry—or metallurgy—as well as all the forces of nature for the purposes of war. The list of articles that have a double use now includes almost every product either in a raw or manufactured state. It is almost impossible to say what is not or may not become conditional contraband. Raw cotton, india-rubber, motorcars, steam yachts—all mineral or vegetable products may have a military use. In fact everything may be, and probably is, conditional contraband. Sive instrumenta bellica sint, sive materia per se bello apta (Bynkershoek). It was in the presence of this difficulty that the Foreign Office addressed the following instruction to Sir Edward Fry, the British representative at the Second Hague Conference. The paragraph is given in full. With regard to contraband, many most difficult questions arose during the late war. These cases were sufficient to show that the rules with regard to contraband that were developed at the end of the eighteenth and the beginning of the nineteenth centuries are no longer satisfactory for the changed conditions under which com
merce and war are now carried on. His Majesty's government recognize to the full the desirability of freeing neutral commerce to the utmost extent possible from interference by belligerent Powers, and they are ready and willing for their part, in lieu of endeavoring to frame new and more satisfactory rules for the prevention of contraband trade in the future, to abandon the principle of contraband of war altogether, thus allowing the oversea trade in neutral vessels between belligerents on the one hand and neutrals on the other to continue during war without any restriction, subject only to its exclusion by blockade from an enemy's port. They are convinced that not only the interest of Great Britain, but the common interest of all nations will be found, on an unbiassed examination of the subject, to be served by the adoption of the course suggested.
Even Homer nods, and the British Foreign Office which on the whole deserves the gratitude of mankind for its constant efforts to limit the hardships and the horrors and injustice of war, showed less than its usual clear vision in this paragraph. It was proposed to abolish contraband because practically everything had become contraband. A strange and insufficient reason. It was proposed to substitute blockade with all the penalties incidental thereto, for the more merciful system approved in the Jay Treaty and by Lord Stowell, that is to say, it proposed to substitute the confiscation of commerce for the control of commerce. And it was proposed to rely on blockade when blockade in the legal sense had become impossible or would shortly be rendered impossible by the submarine. But there is some excuse for this defect of vision. The present writer happened about that date, i.e., 1907, to discuss the naval position with a captain in the German Navy who has achieved distinction as an authority on naval subjects. To the remark that the submarine was a new weapon which would change naval war, the German captain replied: I don't believe it. The submarine is dangerous to its crew, look at the accidents that have taken place—if anything goes wrong, and things must always go wrong sometimes, everyone is drowned or suffocated. No, I have no faith in submarines, what we want is more battleships and bigger battleships. For our present ships are too small. We want bigger guns and bigger ships if we are to face your Fleet. It is right to add that at the outbreak of the present war the Germans actually possessed a smaller fleet of submarines than the British.