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Why should it be changed by the exercise of a belligerent right, universally acknowledged, and in common use when the rule was laid down, and over which the neutral had no control?
The belligerent answers, that by arming, his rights are impaired. By placing his goods under the guns of an enemy, the neutral has taken part with the enemy, and assumed the hostile character. Previous to that examination which the court has been able to make of the reasoning by which this proposition is sustained, one remark will be made, which applies to a great part of it. The argument which, taken in its fair sense, would prove that it is unlawful to deposit goods for transportation in the vessel of an enemy, generally, however imposing its form, must be unsound, because it is in contradiction to acknowledged law.
The Chief Justice then went further and held that the resistance of the enemy vessel to capture did not infect, as it were, the property of the neutral carrier, and that the property of the neutral would not share the fate of the enemy vessel unless the owner took part in the resistance to capture. Referring to the character of such a vessel and the risk assumed by neutrals in employing it as a means of transportation, the Chief Justice remarked:
She is an open and declared belligerent; claiming all the rights, and subject to all the dangers, of the belligerent character. She conveys neutral property, which does not engage in her warlike equipments, nor in any employment she may make of them; which is put on board solely for the purpose of transportation, and which encounters the hazard incident to its situation; the hazard of being taken into port, and obliged to seek other conveyance, should its carrier be captured.
The status of passengers was not and could not have been involved in this case, for that question has been raised for the first time by Germany in the present war. Their personal security was so firmly established in the practice of nations that the Chief Justice took occasion to reinforce his conclusion as to the goods on board by drawing an analogy between the status of neutral passengers and the position of neutral goods. He used the following language:
If the neutral character of the goods is forfeited by the resistance of the belligerent vessel, why is not the neutral character of the passengers forfeited by the same cause? The master and crew are prisoners of war, why are not those passengers who did not engage in the conflict, also prisoners? That they are not, would seem to the court to afford a strong argument in favor of the goods. The law would operate in the same manner on both. This case is more significant because the neutral owner of the goods was actually on board the armed merchant vessel at the time of seizure and during its resistance to capture.
The holding that merchant vessels may be armed for defensive purposes was actually applied in the practice of the United States during the present war before the submarine issue was raised. A circular issued by the Department of State on September 19, 1914, with reference to the status of armed merchant vessels, declares that “a merchant vessel of belligerent nationality may carry an armament and ammunition for the sole purpose of defense without acquiring the character of a ship of war," and the character of a defensive armament is defined in detail.
The opinion of Chief Justice Marshall on these points represents the mature conclusions of a great jurist applying, after careful examination and thorough consideration, the principles of the law of nations, which - the United States, with commendable firmness declares are immutable and cannot be modified by a single nation for reasons of expediency.
Assuming that proper steps are taken for the safety of the passengers and crew and the security of the neutral cargo on board an enemy vessel, no doubt can be raised as to the right of the German submarines to destroy the vessel itself. In the case of enemy vessels, capture, that is to say, seizure with intent to retain, passes title immediately to the captor's government. The intervention of a prize court is necessary only in order to pass the title from the capturing government to an individual claimant, if there be a municipal statute giving the individual captors an interest in the vessel or property. This is, however, a matter of indifference to the proprietors of the enemy ship. As soon as it is seized they lose their title and, barring recapture, the vessel is lost to them, and it is all one to the erstwhile owner whether the ship be sunk or whether it be taken into an enemy port.
The destruction of neutral vessels or of neutral property on board an enemy vessel is, however, a very different matter. The neutral does not lose title to his vessel or cargo until it has been legally condemned according to the regular course of proceedings in a prize court for reasons recognized by international law as just grounds for condemnation. Such proceedings should not be held upon the quarter deck of a warship nor after the vessel with its papers has been destroyed. While danger to the capturing vessel or to the success of its operations, distance from the home port, or other circumstances, may justify the destruction of an enemy vessel, it has been held by the prize courts that such reasons cannot justify the destruction of a neutral vessel, or of enemy vessels when there is neutral cargo on board, and if there is any doubt as to the captor's power to bring such a vessel to adjudication, it is his duty to release her.? Lord Stowell, in a case decided in 1819 8 went so far as to declare that the destruction of neutral property without bringing it in for adjudication “cannot be justified to the neutral owner by the gravest importance of such an act to the public service of the captor's own state. To the neutral it can only be justified, under any such circumstances, by a full restitution in value.” Where neutral lives, instead of neutral property, are destroyed, restitution in full value is impossible.
5 Supplement to this JOURNAL for January, 1915, p. 121. 6 Hall, International Law, 4th Edition, pp. 474-5, 477.
In the course of the discussion relating to neutral vessels, Germany has modified her original warning that, in order to avoid mistakes, such ships keep entirely away from the war zone, by suggesting that such vessels when navigating the war zone be convoyed or be made recognizable as neutral by special markings. The reasons given for requiring neutrals to take these precautions is that British ships are sailing under neutral flags, and that neutral ships sailing under their own flags may be mistaken for enemy ships. Here again Germany seeks to impose upon neutrals an entirely new and illegal burden. The disguising of the ships of belligerents is a longstanding practice of naval warfare, and is expressly recognized in the German Prize Code. It is a matter over which neutrals have no control and they have never been punished for its exercise. Indeed, one of the chief reasons for recognizing the right of visit and search of vessels flying neutral flags is precisely to determine if they are entitled to fly the neutral flag. The onus of proof of belligerent nationality has always rested upon the captor, but Germany now seeks to relieve herself of this duty and to impose it upon neutrals by forcing them, under penalty of destruction and death, to establish their neutral character by external signs. The United States was, therefore, fully justified in ignoring such suggestions. Further ample and sufficient reasons for disregarding them will also appear upon slight reflection. To acknowledge Germany's right to sink on sight vessels not distinctively marked as neutral would, by implication, be an acquiescence in her claim to sink on sight other neutral vessels not so marked and enemy vessels which may have neutral persons and cargoes on board. The convoying of American vessels bound for enemy ports would in addition give Germany an opportunity to insist that American vessels
7 The Leucade, 2 Spinks, 228, 231. 8 The Felicity, 2 Dod. 381.
bound for German or neutral ports be also convoyed and thus embroil the United States in the disputes between Germany and her enemies on the question of imports into Germany.
A further excuse for the acts of her submarines is given in Germany's allegation that it would endanger the safety of the German officers and submarines to attempt to visit and search British vessels, and even neutral vessels for fear of encountering a British vessel in disguise. This unfortunate embarrassment does not exist through any fault of the neutrals who may happen to be on board a British vessel or who are lawfully navigating their own vessels. It arises solely by reason of the difficulty of adapting such an instrument of warfare as the submarine to the universally recognized rules applicable to the capture of merchant vessels. The logic of such a situation would seem to require, not that neutrals be punished for Germany's inability to comply with the rules, but that she accede to the demand of the United States and either devise means of adapting her practice to the rules or discontinue it. This acknowledgment by Germany of her inability to apply the rules of naval warfare is a conclusive verification of the statement contained in the American note of May 13th that “manifestly submarines cannot be used against merchantmen without an inevitable violation of many sacred principles of justice and humanity.”
From this review of the questions at issue between Germany and the United States and the examination of the principles involved, the conclusion is unavoidable that the warfare against merchant vessels as at present conducted by Germany is, in the words of Mr. Bryan while Secretary of State, “in clear violation of universally acknowledged international obligations” and constitutes, in the language of Secretary of State Lansing, “grave and unjustifiable violations of the rights of American citizens.” No matter how necessary such acts may be to the success of Germany's naval and military operations, they are, again to quote Secretary Lansing, “manifestly indefensible when they deprive neutrals of their acknowledged rights." These rights the United States enjoys not only under the general principles of international law, codified in some cases by international conventions adopted at The Hague to which both Germany and the United States are firmly bound, but the United States is specially entitled to them against Germany by virtue of the provisions of the treaty of 1828 between the United States and Prussia, which expressly stipulates that “if one of the contracting parties should be engaged in war with any other power, the free intercourse and
commerce of the subjects or citizens of the party remaining neuter with the belligerent powers shall not be interrupted.”
THE QUESTIONS IN DISPUTE BETWEEN THE UNITED STATES AND GREAT
BRITAIN WITH REFERENCE TO INTERFERENCE WITH NEUTRAL TRADE
The government of Great Britain on March 1, 1915, notified the Department of State at Washington that the German proclamation of a war zone and its enforcement by submarines through indiscriminate destruction, instead of by regulated capture, with the object of preventing commodities of all kinds, including food for the civil population, from reaching or leaving the British Isles or northern France had forced Great Britain and France to take retaliatory measures to prevent commodities of any kind from reaching or leaving Germany, by detaining and taking into port ships carrying goods of presumed enemy destination, ownership or origin. These measures would be enforced without risk to neutral ships or to neutral noncombatant lives and in strict observance of the dictates of humanity. The vessels and cargo would not be confiscated unless they were otherwise liable to condemnation.
The United States promptly, on March 5, 1915, interrogated the British and French Governments as to the meaning of this declaration. It pointed out that the right to prevent commodities of any kind from reaching or leaving Germany appertained to a state of blockade which, in this case, had not been declared, while the announcement that the vessels and cargoes would not be confiscated for attempting to enter or leave Germany indicated a treatment as if no blockade existed. In this paradoxical situation the United States declared that neutrals had no standard by which to measure their rights and insisted that the declaring powers assert whether they rely upon the rules covering blockade or the rules applicable when no blockade exists. It also pointed out that the announcement that vessels or cargoes detained for attempting to enter Germany would not be confiscated unless otherwise liable to condemnation indicated that the rules of contraband were to be applied to the cargoes detained. Attention was called to the fact, however, that the rule covering noncontraband articles carried in neutral bottoms, requires that the cargoes be released and the ships allowed to proceed. According to the announcement, however, the ships were not to be allowed to proceed to their destination, and the United States inquired what was to be done with innocent and conditional contraband cargoes?