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enemy from receiving the unlawful neutral aid which it is believed a vessel and its cargo, either or both, may contribute if the vessel be allowed to proceed. On the other hand it is to enable a legal proceeding to be initiated in order to ascertain whether in fact the vessel and the cargo which have been detained merely as a precautionary measure in the first instance, are capable of contributing unlawful aid to the enemy and are subject at law to the penalty of condemnation as prize for attempting to do so.
Obviously, therefore, since a legal proceeding is necessary to determine the facts, and it is lawful to detain the vessel for that purpose, the seizure may be lawful, or a capture, whereas the proceedings may establish the entire innocence of the vessel or its cargo, and the consequent immunity of either or both from the penalty of condemnation as prize. Again, the lawfully seized, or captured vessel may be unlawfully condemned as it would be if confiscated as prize without due process of law, or upon insufficient evidence of an unneutral character or mission. In the latter case the offense at international law consists not of the capture but of the condemnation of an innocent vessel, for the seizure was lawful while it was the condemnation that was unlawful. Therefore, while it is highly improper to speak of property unlawfully captured as prize, it is entirely correct to speak of captured property being unlawfully condemned as prize.
From the foregoing we may conclude that if a belligerent seize a neutral merchant vessel on the high seas without a justifiable belief that the vessel or its cargo is liable to condemnation as prize, the seizure is not a capture but an unlawful seizure, and the case is not one of prize but a mere violation of the sovereign right of jurisdiction of a neutral state, being no more nor less than unwarranted interference with neutral commerce in derogation of the neutral rights.
So, too, we may conclude that if a belligerent capture a neutral vessel on the high seas and appropriate to its uses the vessel and its cargo, either or both, before the property confiscated has been adjudicated by a prize court to be subject to the penalty of condemnation as prize, the appropriation amounts to no more nor less than the confiscation of neutral property on the high seas for which there is no sanction at international law.8
Growing out of and ancillary to the greater right of capture is the right of visit and search.
Said Chief Justice Marshall in The Nereide:
What is this right of search? Is it a substantive and independent right wantonly, and in the pride of power, to vex and harass neutral commerce, because there is a capacity to do so, or to indulge the idle and mischievous curiosity of looking into neutral trade, or the assumption of a right to control it? . . . But this is not its character.7
s A seizure of this character is entirely different from the requisition of neutral property and the taking of neutral property under the exercise of the right of angary, as will appear later.
The idea that a belligerent may stop, visit and search every merchant vessel on the high seas with impunity in order to determine its character is a wholly erroneous one which finds no sanction whatever in law. Like the right of capture the right of visit and search may only be exercised upon certain well defined conditions. There must at least be a reasonable suspicion that a vessel or its cargo is of an unneutral character to justify its exercise. A visit and search not made upon reasonable grounds of suspicion are no less unlawful than a seizure made under similar circumstances.
While the purpose of a visitation and search is merely to determine more surely whether or not the vessel is subject to capture, visitation and search are in no sense prerequisites of capture. Where the greater right may be legally exercised, that is where a reasonable suspicion as to the hostile character of the vessel or cargo already exists, the vessel may be captured without search, and taken into port to be dealt with by a prize court.
If the law of visit, search and capture be as stated, it would seem that visit and search, when made in good faith and in a proper way, should be welcomed rather than resented since they may disclose the fact that the suspicion which would have justified a capture and detention pending prize proceedings is ill founded, and that the vessel is innocent and should be allowed to proceed on her way without further detention.
But this is by no means the case. The national mind not having kept pace with the evolutions of international law, there remains a prejudice against the exercise of this belligerent right even in accordance with old methods, it being the popular conception that the acts of visitation and search are indignities to which only the most reluctant submission is due. It is, of course, a wholly erroneous conception, tracing back as it does to a time when these acts were performed by virtue of vis major rather than by virtue of right at law.
Bearing in mind the law as to visit and search, capture, and the seizure of neutral property on the high seas, let us now examine the radical departures that were made during the late war from the practices sanctioned by that law.
In 1914 the Allies found themselves in a novel situation. Germany by the successful invasion of Belgium and a part of France had cast her western line of defense beyond the neutral states of Denmark and Holland, while Sweden also fell within the area which was denied to the Allies. As time wore on it became apparent that the Central Allies could not be defeated unless they were economically strangled by a blockade which, to be effective, had to infringe upon the freedom of neutrals as it had hitherto existed, a complication that arose directly from the fact that neutral states were wholly within the lines of circumvallation which the Entente of necessity had to throw about Germany's military and naval forces. Viewing the resulting situation in a broad way it is apparent that the hardships of the neutrals within the Allied lines of circumvallation resulted in a measure from their inability to free their territory from Germany's embrace as well as from the restrictions imposed by the blockading Powers. Their position was somewhat similar with respect to the results to that of neutral persons who are caught in a beleaguered city and yet, for physical reasons are unable to free themselves from the besiegers' lines.
Under the novel circumstances described it was inevitable that new practices should develop as to visit and search, and the seizure of neutral shipping and goods destined for the beleaguered areas. Not only had the growth in the size of steamships necessitated in many instances that a vessel be conducted long distances out of its course to calm water to enable it to be visited, but the cargoes which these enlarged vessels bore were of such immense volume and bulk that they could not be thoroughly searched at sea however long the vessel might be detained. Loaded by expert stevedore crews at wharves equipped with special machinery, and with scientific regard to the character and placing of the various components of the cargo, obviously their cargoes could not be displaced with the means available at sea; consequently they could not be thoroughly searched. And even had it been possible to search the cargoes, an amount of time would have been required that was prohibitive of search in view of the ever present danger from hostile submarines. Inevitably, therefore, Great Britain, or the leading maritime belligerent, soon instituted the practice of taking neutral ships into British ports and there detaining them for the purpose of searching for contraband.
In December, 1914, the State Department of the United States, admitting readily the full right of a belligerent to visit and search on the high seas the vessels of American citizens or other neutral vessels carrying American goods, and to detain them, when there was sufficient evidence to justify a belief that contraband articles were in their cargoes, protested against the new British practice. Great Britain responded that the undoubted right to visit and search would become a nullity if the old methods were pursued, and, undeterred, continued her course with respect to neutral shipping throughout the war.
On March 1, 1915, the State Department was informed by the British Embassy at Washington that by reason of alleged illegal practices on the part of Germany, her opponents were driven to frame retaliatory measures in order to prevent commodities of any kind from reaching or leaving that country. It was declared that these measures would be enforced by the British and French Governments without risk to neutral ships or to neutral or non-combatant life, and that Great Britain and France would, therefore, hold themselves free to detain and take into port neutral ships carrying goods of presumed enemy destination, ownership or origin. On March 11 and March 13, 1915, Great Britain and France issued an Order in Council and a Presidential Decree, respectively, putting into effect the announced policy.
The State Department promptly protested against the enforcement of the British Order in Council of March 11,1915, declaring that it would constitute, were its provisions to be actually carried into effect as they stood, a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations then at peace. "A nation's sovereignty over its own ships and citizens under its own flag on the high seas," unlimited in time of peace, was said by the Secretary of State to suffer no diminution in time of war, except in so far as the practice and consent of civilized nations had limited it by the recognition of certain clearly determined rights, which it was conceded that a belligerent might exercise, such as the rights of visit and search, and capture, and from this position the United States has never receded. The novelty of the practices of the Allies which have been described will appear very readily if it be attempted to bring them within the established rights of belligerents at international law with respect to the appropriation of neutral goods.
Many seizures by the Allies were made without any reasonable ground for a presumption that'the property taken was of an unneutral character. The seizures cannot be said to have been made in the exercise of the old and more or less obsolete right of angary (Jus angariae) which has never been held to apply to neutral shipping except when the vessels appropriated by a belligerent to its uses were in the territorial waters of the belligerent at the time they were impressed. Even according to those authorities which hold that the right of angary still exists as a belligerent right, the neutral property that is liable to seizure thereunder, either for use or destruction, must be temporarily at least within the territory of one of the belligerents, and the use or destruction thereof must be impelled by necessity.
In 1863 an Act of Congress provided that the Secretary of the Navy and the Secretary of War might requisition any captured neutral vessel, arms, or munitions of war or other material for the use of the Government, before adjudication by a prize court, or afterwards. Great Britain protested against the provisions of this act at the time it was passed, and the Attorney General of the United States held that there was no warrant for it in international law. In The Zamora* the Judiciary Committee of the Privy Council of Great Britain also condemned the act of 1863, and held that the right to requisition neutral ships and their cargoes only exists when they have been captured and brought into a prize court for adjudication, and when the property to be taken is urgently required for use in connection with the defense of the realm, the prosecution of the war or other matters involving national security. Furthermore, it was expressly declared that it was for the court, and not the executive of the belligerent state to decide whether the right can be lawfully exercised in a particular case, and that in the absence of a real or bona fide question in prize no application for the requisition of neutral goods before condemnation would be entertained by the court else seizures known to be unwarrantable by law and, therefore, not captures at all, would be encouraged as a means by which a belligerent might obtain useful property.
By reason of the fact that the novel practices described, and many others, » 4 Lloyd's Prize Cases, 62 (1916).
were adopted by the belligerents during the late war, one often hears it said by members of the legal profession as well as by laymen that today there is no international law. If this statement be analyzed it will be seen to be about the equivalent of a statement that because certain elements of a frontier population invariably are able during the early period of settlement to run things pretty much their own way in the absence of representatives of the law in sufficient force to control them, there is no municipal law. But, after the centuries of toil and suffering which the ever-enlightening mind of mankind has devoted to the establishment of order, are we to admit that whenever, by reason of local conditions it becomes possible and advantageous to ignore the law as it has existed, we may do so with impunity?
The question answers itself. But while it is absurd to contend that violations of law do away with the law, whether a law will continue to be enforced is another question. As a general proposition it may be stated that no law that is not based upon reason will long continue to be respected, and when not held in respect its enforcement or attempted enforcement will lead to its repeal.
The situation today is that the law is well established but it is being ignored, and in its present form will probably continue to be ignored.
Although for political reasons full reparation may be made for every violation of the law of which England and France were guilty during the late war, in view of their experiences, and especially those of Great Britain, it is not likely that they will ever again observe the old rules. This being so, it is a matter of grave concern to amend the existing law in such way as to render the same acceptable to all the powers who must be relied upon to enforce the law of nations. Else in fact there will be no international law worthy of the name. Nothing is more essential to the sanctity of any code of law than that dead letters be removed from the statute book. If it be that merchant vessels cannot be searched effectively on the high seas let the fact be admitted and the law be amended accordingly.
The right of visit and search as it now exists is in no sense exercisable in diminishment of the sovereignty of neutral states whose merchant vessels on the high seas are subject to visit, search and capture, but is derived from the sovereignty of the belligerent state exercising the right. In other words, while the right of exclusive jurisdiction over its merchant vessels on the high seas and the persons thereon, is a sovereign right in a neutral state, it is also a sovereign right in a belligerent state to determine whether a merchant vessel on the high seas is within the exclusive jurisdiction of the neutral state whose protection is claimed by the vessel to be searched. Thus, it is seen that in submitting to the visitation and search of its merchant vessels on the high seas a neutral cannot be said to yield anything out of its own sovereignty to the belligerent. Why then, if conditions have so changed as to make it impracticable to exercise these rights in the old way, should they not be exercised in some practical new way?