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The exclusive jurisdiction of a neutral state extends to its merchant vessels on the high seas as well as to the land and waters within its territorial limits. Heretofore search has only been lawful on the high seas, or in one part of the jurisdiction of a neutral state. If when made on the high seas it was not in derogation of the neutral's right of exclusive jurisdiction, why should the search be deemed to be in derogation of the neutral's jurisdiction if made within the other part of the neutral's jurisdiction?
Surely, the prejudice of narrow nationalism should not be permitted to reduce the code of international law to a state of obsolescence. If it can be revivified by amendment so as to regain for it the universal obedience of the sisterhood of nations it should be amended. Nothing is more fatal to the spirit of respect for law than the tolerated abuse of law.
Would not the inspection of neutral vessels at the port of departure by agents of the belligerents through whose cordons the vessels were to pass, and the granting to them upon reasonable conditions of belligerent licenses, accomplish every object which search on the high seas may accomplish? Undoubtedly such a system would save all parties great annoyance and much expense in delays in transit. It would be no more subversive of neutral rights and dignity than the boarding and search of neutral ships on the high seas— less so than the herding and detention of them in belligerent ports.
In addition there might be required of vessels destined to certain prescribed neutral ports certificates of innocent character from the state whose flag they fly. The necessary examination for the granting of a belligerent license could be made in conjunction with that upon which the certificate of innocence would be based, so that the exercise of the belligerent right of search would be thoroughly regulated and controlled by the neutral state. This, too, would tend to relieve visit and search of its present vexatious characteristics, and to overcome the lingering prejudices against the exercise of the right.
Under such a system unlicensed and uncertified neutral vessels, destined to proscribed ports, would by reason of the lack of the required credentials be subject to capture, and no licensed and certified vessel proceeding to those ports would be subject to visit and search, or capture on the high seas, unless its conduct after leaving port were of such a character as to justify the revocation of the belligerent license. The question of what neutral ports might be proscribed would be one for diplomatic adjustment between the neutral and belligerent states, and would thus be done away with as a question of dispute between neutral nationals and belligerent states in the prize courts of the latter.
As to the appropriation of neutral goods seized on the high seas the law does not require to be amended. If an unlicensed and uncertified vessel destined to a proscribed port were seized, the seizure would be a capture which is presently lawful, and the vessel and its cargo would merely be liable to condemnation as prize by the adjudication of a belligerent prize court. On the other hand, if a neutral vessel not destined to a proscribed port, or a duly licensed and certified vessel were detained for search, or seized, or interfered with in any way except for the purpose of examining its credentials, the interference would be an out and out invasion of neutral rights for which the belligerent offender would be answerable at international law.
While the law as to the unwarranted seizure of neutral property by a belligerent is well settled, the theory of liability upon which damages are assessed therefor requires to be revised.
At common law the same act may constitute a crime against the state and a tort. For the first the state exacts a penalty. For the second the persons whose private rights have been invaded may recover damages. And so, the same act might constitute a dual offense at international law. For instance, the wrongful seizure of neutral property by a belligerent might be held to constitute a public international offense, analogous to a crime, for which satisfaction of the neutral sovereignty would be due, and an international tort for which the belligerent offender would be liable in damages as a tort-feasor to the private owners of the property.
It is only the form—the name—of this proposal that is novel. The underlying principle has already been adopted by several of the leading belligerents in the late war. It was adopted by Great Britain in the celebrated case of The Wilhelmina, and by the United States in the case of The Rijndam; in both of these cases neutral property that had not been condemned was appropriated by a belligerent. In both compensation was based upon the principle of full indemnification, which is the same principle from which is derived the measure of damages in tort. In both the belligerent made full satisfaction to the state who claimed the allegiance of the owners of the property seized.
It may be difficult to work out the details of the necessary amendments to the laws of nations as they exist today, but it is a task byno means too difficult for the enlightened international mind if it be recalled and frankly admitted that only the law of change is changeless.
ORDERS IN COUNCIL AND THE LAW OF THE SEA
By Gordon E. Sherman
In a maritime war the formal announcements of national executives concerning principles of intended action possess an interest frequently transcending the occasion calling them into being since they may originate important modifications in the imprescriptible system of the law of nations and thus become touched with that universality of which the sea itself offers so constant and striking a suggestion. In the conflicts of the French revolution and the First Empire, as well as in the great war of our own day, we find produced on the part of the opposing governments a series of declarations (orders in council, arrits) which have a permanent interest for the student of international law since they practically extend over the whole field of naval warfare and reach every aspect of belligerent action upon the high seas, while they may also become a cause oftentimes of strained relations between belligerent and neutral Powers arising through widely varying views touching the application of prize law to marine captures. The modern law of nations recognized, moreover, essential divergences between principles which should govern the treatment of property falling into belligerent power upon land or those controlling its seizure on the ocean or in belligerent territorial waters, and the subject may easily become highly complicated when a severe measure of repression, aimed in the first instance at an enemy, strikes a neutral and subjects persons or goods not primarily or properly identified with the struggle to every peril of combatant fate.1
Accordingly, when on February 1, 1793, war broke out between France and England, the ocean became at once a conspicuous theatre of hostilities. The destruction of enemy commerce furnished in its legal aspects a far-reaching and inexhaustible topic of discussion touching maritime rights or duties as coming within the scope of the jus gentium and continued to supply material for acrimonious or actually war-making difference during twenty years and until peace had suspended for a time at least the agitations of attempted world conquest. Scarcely, however, had the contest between British and French arms fairly begun when the merchants of leading neutrals, —conspicuously Holland and the United States,—determined upon the practical exploitation of opportunities likely to be offered by a war in which
1 See Appendix, paragraph 1, page 410.
each of the chief contestants possessed rich colonies beyond the Atlantic and whose colonial products were of the first importance to Europe generally, although, in so far as France was concerned the physiocratic idealists claimed to find in the agricultural resources of their own country supplies adequate to every requirement and whose sufficiency justified a scornful view of British commercialism. To strike, consequently, at Britain's sea-borne traffic became at every period of the struggle a fixed aim of the French Republic and Empire, and as an inevitable sequence of such a determination there soon appeared disputes of great bitterness, not alone with the English Government, but with neutral Powers as well, touching the violation or maintenance of acknowledged canons of international law as between belligerents and again between belligerents and neutrals.2
In these fields, somewhat vaguely defined, the differences were grouped about conceptions of blockade, contraband, convoy, the colonial carrying trade and the coasting trade regarded as state monopolies normally closed to all but nationals, together with the closely-related British conception of entrepdt (deposit) as applied specially to colonial commerce and navigation. Briefly stated, questions concerning blockade centred upon attempts to merely declare or proclaim a blockade of a coast line frequently of such great extent that it was quite beyond the power of the declaring belligerent to actually guard all approaches to the invested places, which were thus sought to be closed by mere empty "proclamation" as the term ran. In the matter of contraband, there evidently existed a wide margin for interpretation of what merchandise with enemy destination should be held confiscable as essentially appropriate to warlike use; in many treaties an effort had been made to standardize this vexed subject through agreed contraband list3, though always, and of necessity, without permanent result. Again, the colonial and coasting trades opened practically illimitable fields instinct with elements of hostile action and debate, nor were the vast and mysterious stretches of the Atlantic itself more pregnant with storm and disaster than the now asserted rules of the law of nations governing transoceanic carriage of merchandise, especially between European colonies in the West Indies and their parent countries. The vital issues here turned upon transport of enemy property by neutrals eager to assume the advantages of trade from which a belligerent might be for the time excluded through its adversary's superior prowess at sea. But, it was asked, should a neutral be permitted thus to interpose its shield between enemies with manifest profit to itself and to the weaker belligerent as well? Again, should a neutral be permitted to conduct the coasting trade of this same weaker belligerent, regard being had to the undoubted fact that only the pressure of warfare on the part of a stronger enemy had induced the said belligerent to open his coasts along which theretofore, and in time of peace, traffic had been held inviolable as a state monopoly? Did not the neutral in such cases practically • See Appendix, paragraph 2, page 411.
identify itself with enemy interests and hence convict itself of unneutral service?
Around these and allied problems there gathered those forces of opinion which resulted in the orders and arrits which we are now to briefly examine and whose significance, it is hoped, will be more clearly exhibited in the texts themselves. In a perusal of these texts it will readily be noted that the opposing belligerents freely impute to each other wilful violations of all principles of international law and maintain that their standards can no longer be expected to conform in letter or spirit with an international code flagrantly disregarded. The essential intendment, however, of every decree and order will be plain enough if we but bear in mind the practically identical aims, though along different channels, of England and France, these aims contemplating the destruction or appropriation of each opponent's sea-borne commerce. On the one hand, the French standpoint demanded at whatever cost to France the isolation of England from every market. As an indispensable feature of such a purpose it was sought, in the first place, to effect a closing of the transatlantic colonial carrying trade between America and England. From the British point of view, not the closing, but rather the complete control of European coasting trade and transatlantic traffic was striven for, England to become the entrep6t or point of deposit through which all ocean commerce must pass or originate on its way to supply continental needs; foreign ports were to be open to commerce which had in this manner paid a British duty, while these same ports would otherwise be closed by either actual or proclaimed blockade. Of this entrepdt feature we shall have occasion to speak later at more length. Despite the economic fallacy here quite apparent, British commercial interests, it was confidently reasoned, might well be thought safeguarded since England would constitute a dutiable halting-place for world sea-traffic. There was evidently in this design small room for the interests or rights of American, Dutch, or Baltic Sea neutral shipping, nor need we be surprised at the early development of a singular naval warfare between the United States and France in 1798-1800, or at the large indemnities subsequently admitted as due to our merchants through illegal captures and condemnations.
On May 9, 1793, the National Convention at Paris issued the first of a series of memorable decrees declaratory of principles intended to be recognized by it in naval warfare. England replied by various orders in council, and soon neutrals were drawn within the circle of general disaster. This decree of May 9th announced the sequestration of provisions by way of retaliation for a similar course already taken by England:—
The National Convention, after having heard the report of their Marine Committee; considering that the flag of the neutral Powers is not respected by the enemies of France, that two cargoes of flour arrived at Falmouth in Anglo-American vessels, and purchased before the war for the service of the Marine of France, have been detained in England