neutral. These stipulations shall consequently be regarded as permanent, and shall serve as a constant rule for the contracting parties in matters of commerce and navigation" (f). It was only by reason of such special Conventions that Great Divergent Britain temporarily recognised the immunity from visit and search views. of neutral vessels sailing under their national convoy. When these Conventions were rescinded, Great Britain resumed the right of visit and search in the case of convoyed vessels. But the practice was rarely enforced, however, after the conclusion of the Napoleonic wars. Moreover, in 1854, during the Crimean war, the British Government for the time being waived the right of search, in order to secure harmonious co-operation with France which recognised the right of convoy (g). The Declaration of Paris, 1856, having declared that the neutral flag shall cover enemy goods other than contraband, the application of the British doctrine was considerably restricted; but it was not abandoned. Great Britain has stood almost alone in opposing the right of convoy; Continental practice followed generally by the United States, though opposed by most of the American publicists-has supported it (h). At the London Naval Conference, 1908, the British delegates signified their readiness to admit the right of convoy (¿), and the Declaration of London (1909) arrived at a solution to this effect (k). an enemy In the case of The Maria, the resistance of the convoying ship Forcible was held to be a resistance of the whole fleet of merchant vessels resistance by under convoy, and subjected the whole to confiscation. This was master. a case of neutral property condemned for an attempted resistance by a neutral armed vessel to the exercise of the right of visit and search, by a lawfully commissioned belligerent cruiser. But the forcible resistance by an enemy master will not, in general, affect neutral property laden on board an enemy's merchant vessel; for an attempt on his part to rescue his vessel from the possession of the captor is nothing more than the hostile act of a hostile person, who has a perfect right to make such an attempt. "If a neutral (f) The question arising out of the case of the Swedish convoy gave rise to several instructive polemic essays. The judgment of Sir W. Scott was attacked by Professor J. F. W. Schlegel, of Copenhagen, in a Treatise on the Visitation of Neutral Ships under Convoy (transl. London, 1801); 66 Reand vindicated by Dr. Croke in marks on M. Schlegel's Work" (1801). See also "Letters of Sulpicius on the Northern Confederacy (London, 1801). "Substance of the Speech of (9) Cf. Parl. Papers, Miscell. No. 4 (h) Cf. Parl. Papers, Miscell. No. 5 (1909), p. 78. (i) Parl. (1909), p. 25. Papers, Miscell. No. 4 (k) See infra, p. 798. Handing over contraband goods to belligerent warship. UNNEUTRAL are in an unmanufactured state, and are the produce of the country exporting them, is usually followed only by the pre-emption of such goods by the British Government, which then pays freight to the vessel carrying the goods." "A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. The delivery of the contraband must be entered by the captor in the logbook of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has thus been handed over to him " (h). We have seen that contraband trading is forbidden by a belligerent, because it increases the means and resources of the enemy in the prosecution of his hostilities. That is, contraband trading assists the enemy-although the neutral trader undertakes his enterprise solely for the purpose of acquiring profit for himself. In so doing he identifies himself with the enemy, but only indirectly and only to a certain extent; therefore, if he is taken in the act by the other belligerent, he is liable to the penalties imposed, which may bring about the loss of his property hazarded in the adventure. If a neutral, instead of such partial identification with the enemy, entirely identifies himself, his acts, and his possessions with the interests of the enemy, he necessarily becomes one with the enemy, he divests himself completely of his neutral character, and in the eyes of the other belligerent becomes himself an enemy, and so is subject to all the liabilities of an enemy proper. Between these two cases there is an intermediate position, which arises out of the performance of what has been described as ' unneutral service'-'assistance hostile.' This involves an interference in the conflict of a character not merely commercial but also warlike; so that the penalty here will be generally severer than that imposed for contraband commerce; e.g., whereas in the latter case the banned goods alone may in certain circumstances be confiscated, in the former the vessel engaged in the forbidden service will herself be subject to condemnation. To show the connection (h) Art. 44. see Phillipson, Int. Law and the Great War, pp. 340 seq.; Manual of Emergency Legislation, passim. . mercen. of unneutral service with contraband trading, we may refer to an American case that occurred in the war between Great Britain and the United States at the beginning of the nineteenth century. Although the general policy of the American Government, in The Comits diplomatic negotiations, then aimed to limit the catalogue of contraband by confining it strictly to munitions of war, excluding all articles of promiscuous use, in the remarkable case of The Commercen the Supreme Court of the United States was disposed to adopt all the principles of Sir W. Scott, as to provisions becoming contraband under certain circumstances. But as that was not the case of a cargo of neutral property, supposed to be liable to capture and confiscation as contraband of war, but of a cargo of enemy's property going for the supply of the enemy's naval and military forces, and clearly liable to condemnation, the question was, whether the neutral master was entitled to his freight as in other cases of the transportation of innocent articles of enemy's property; and it was not essential to the determination of the case to consider under what circumstances articles ancipitis usûs' might become contraband. On the actual question before the Court, it seems there would have been no difference of opinion among the American judges in the case of an ordinary war; all of them concurring in the principle, that a neutral, carrying supplies for the enemy's naval or military forces, does, under the mildest interpretation of international law, expose himself to the loss of freight. But the case was that of a Swedish vessel, captured by an American cruiser, in the act of carrying a cargo of British property, consisting of barley and oats, for the supply of the allied armies in the Spanish peninsula, the United States being at war with Great Britain, but at peace with Sweden and the other Powers allied against France. Under these circumstances a majority of the judges were of the opinion that the voyage was illegal, and that the neutral carrier was not entitled to his freight on the cargo condemned as enemy's property. It was stated in the judgment of the Court, that it had been solemnly adjudged in the British Prize Courts, that being engaged in the transport service of the enemy, or in the conveyance of military persons in his employment, or the carrying of despatches, Hostile are acts of hostility which subject the property to confiscation. In aid.' these cases, the fact that the voyage was to a neutral port was not thought to change the character of the transaction. The principle of these determinations was asserted to be, that the party must be deemed to place himself in the service of the enemy State, and to assist in warding off the pressure of the war, or in favouring its offensive projects. Now these cases could not be distinguished, in principle, from that before the Court. Here was a cargo of provisions exported from the enemy's country, with the avowed purpose of supplying the army of the enemy. Without this destination, they would not have been permitted to be exported at all. It was vain to contend that the direct effect of the voyage was not to aid the British hostilities against the United States. It might enable the enemy indirectly to operate with more vigour and promptitude against them, and increase his disposable force. But it was not the effect of the particular transaction which the law regards: it was the general tendency of such transactions to assist the military operations of the enemy, and to tempt deviations from strict neutrality. The destination to a neutral port could not vary the application of this rule. It was only doing that indirectly which was directly prohibited. Would it be contended that a neutral might lawfully transport provisions for the British fleet and army, while it lay at Bordeaux preparing for an expedition to the United States? Would it be contended that he might lawfully supply a British fleet stationed on the American coast? An attempt had been made to distinguish this case from the ordinary cases of employment in the transport service of the enemy, on the ground that the war of Great Britain against France was a war distinct from that against the United States; and that Swedish subjects had a perfect right to assist the British arms in respect to the former though not to the latter. But the Court held, that whatever might be the right of the Swedish sovereign, acting under his own authority, if a Swedish vessel be engaged in the actual service of Great Britain, or in carrying stores for the exclusive use of the British armies, she must, to all intents and purposes, be deemed a British transport. It was perfectly immaterial in what particular enterprise those armies might, at the time, be engaged; for the same important benefits were conferred upon the enemy of the United States, who thereby acquired a greater disposable force to bring into action against them. In The Friendship (i), Sir W. Scott, speaking on this subject, declared that "it signifies nothing, whether the men so conveyed are to be put into action on an immediate expedition or not. The mere shifting of drafts in detachments, and the conveyance of stores from one place to another, is an ordinary employment of a transport vessel, and it is a distinction totally unimportant whether this or that case may be connected with the immediate active service of the (i) (1807), 6 C. Rob. 420. enemy. In removing forces from distant settlements, there may The Court was, therefore, of opinion that the voyage in which the vessel was engaged was illicit, and inconsistent with the duties. of neutrality, and that it was a very lenient administration of justice to confine the penalty to a mere denial of freight (k). persons. In 1807, during the war between Great Britain and Holland, Transport of military the former captured an American vessel, the Orozembo, whichchartered by a merchant at Lisbon ostensibly to take a cargo to America-had received on board three Dutch military officers of distinction and two civil officials. It was proved that this took place with the knowledge of the charterer, and that the vessel had been specially fitted beforehand for the purpose. Condemnation was decreed on the ground that the vessel had been let out in the service of the enemy. In the course of judgment Sir W. Scott pointed out that in accordance with previous decisions a vessel hired by the enemy for the conveyance of military persons was to be regarded as a transport, and therefore liable to confiscation. As to the number of military persons necessary to subject the vessel to confiscation, it was difficult to define; since fewer persons of high quality and character might be of much more importance than a much greater number of persons of lower condition. To carry a veteran general, under some circumstances, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore the (k) The Commercen (1816), 1 Wheaton, 382. |