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INTERNATIONAL LAW TOPICS AND
It was voted at the conference at The Hague in 1899 that
“The conference expresses the wish that the proposal, which contemplates the declaration of the inviolability of private property in naval warfare, may be referred to a subsequent conference for consideration.”
In view of the above, what regulations should be made in regard to private property at sea in time of war?
The following regulations should be made in regard to private property at sea in time of war:
Innocent neutral goods and ships are not liable to capture.
Innocent enemy goods and ships, except vessels propelled by machinery and capable of keeping the high seas, are not liable to capture.
DISCUSSION AND NOTES.
Attitude of the United States.- Franklin very early expressed a general principle for which the United States has stood. He said, in a letter to Messrs. D. Wendorp and Thomas Hope Hey hger:
Passy, 8 June, 1781. There are three employments which I wish the law of nations would protect, so that they should never be molested or interrupted by enemies even in time of war. I mean farmers, fishermen, and merchants, because their employments are not only innocent, but are for common subsistence and benefit of the human species in general.
As men grow more enlightened, we may hope this will in time be the
Till then we must submit, as well as we can, to the evils we can not remedy.
Franklin in 1783 sent an article to Richard Oswald, of which he said: “I rather wish than expect that it will be adopted."
If war should hereafter arise between Great Britain and the United States, which God forbid, the merchants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance. And all fishermen, all cultivators of the earth, and all artisans or manufacturers unarmed, and inhabiting unfortified towns, villages, or places, who labor for the common subsistence and benefit of mankind and peaceably follow their respective employments, shall be allowed to continue the same, and shall not be molested by the armed force of the enemy in whose power by the events of the war they may happen to fall; but if anything is necessary to be taken from them, for the use of such armed force, the same shall be paid for at a reasonable price. And all merchants or traders with their unarmed vessels employed in commerce, exchanging the products of different places, and thereby rendering the neces
cessaries, conveniences, and comforts of human life more easy to obtain and more general, shall be allowed to pass freely, unmolested. And neither of the powers parties to this treaty shall grant or issue any commission to any private armed vessels empowering them to take or destroy such trading ships or interrupt such com
(Sparks, The Works of Franklin, IX, p. 469.) The first part of this proposed article is now generally recognized as binding throughout the world. States have been more reluctant to adopt the principles in regard to “merchants or traders with their unarmed vessels." The proposition in regard to privateering has become a generally recognized principle.
The United States has uniformly endeavored to obtain the broadest freedom for commerce in time of war.
Exemption from capture has been extended to the following when innocently employed: To
(1) vessels engaged in scientific work and in exploration; (2) coast-fishing vessels innocently employed; (3) cartel ships acting within their permitted sphere; (4) hospital and other Red Cross vessels.
EARLY ATTITUDE OF UNITED STATES.
The treaty between the United States and Prussia of 1785, in Article XXIII, provided thatall merchant and trading vessels employed in exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy to be obtained and more general, shall be allowed to pass free and unmolested; and neither of the contracting powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce. (Treaties and Conventions, 1776–1887, pp. 905–906.)
This provision did not, however, reappear in the treaty of 1799, which took the place of the treaty of 1785, which had expired in 1786 by limitation.
It is evident that Franklin's position was the ideal for which the United States was striving. It was fully recognized that it was yet to be attained.
In a long letter to the minister of foreign affairs of the French Republic, of January 27, 1798, signed by Charles C. Pinckney, J. Marshall, and E. Gerry, occurs the following well-considered statement in regard to the relations of ships and goods:
This principle is to be searched for in the law of nations. That law forms, independent of compact, a rule of action by which the sovereignties of the civilized world consent to be governed. It prescribes what one nation may do without giving just cause of war, and what, of consequence, another may and ought to permit without being considered as having sacrificed its honor, its dignity, or its independence.
What, then, is the doctrine of the law of nations on this subject? Do neutral bottoms of right, and independent of particular compact, protect hostile goods? The question is to be considered on its mere right, uninfluenced by the wishes or the interests of a neutral or belligerent power.
It is a general rule that war gives to a belligerent power a right to seize and confiscate the goods of his enemy. However humanity may deplore the application of this principle there is perhaps no one to which man has more universally assented, or to which jurists have more uniformly agreed. Its theory and its practice have unhappily been maintained in all ages. This right, then, may be exercised on the goods of an enemy wherever found unless opposed by some superior right. It yields by common consent to the superior right of a neutral nation to protect, by virtue of its sovereignty, the goods of either of the belligerent powers found within its jurisdiction. But can this right of protection, admitted to be possessed by every government within its mere limits in virtue of its absolute sovereignty, be communicated to a vessel navigating the high seas?
It is supposed that it can not be so communicated, because the ocean being common to all nations no absolute sovereignty can be acquired in it. The rights of all are equal, and must necessarily check, limit, and restrain each other. The superior right, therefore, of absolute sovereignty to protect all property within its own territory ceases to be superior when the property is no longer within its own territory, and may be encountered by the opposing acknowledged right of a belligerent power to seize and confiscate the goods of his enemy. If the belligerent permits the neutral to attempt, without hazard to himself, thus to serve and aid his enemy, yet he does not relinquish the right of defeating that attempt whenever it shall be in his power to defeat it. Thus it is admitted that an armed vessel may stop and search at sea a neutral bottom, and may take out goods which are contraband of war, without giving cause of offense or being supposed in any degree to infringe neutral rights. But this practice could not be permitted within the rivers, harbors, or other places of a neutral where its sovereignty was complete. It follows, then, that the full right of affording protection to all property whatever within its own territory, which is inherent in every government, is not transferred to a vessel navigating the high seas. The right of a belligerent over the goods of his enemy within his reach is as complete as his right over contraband of war; and it seems a position not easily to be refuted that a situation that will not protect the one will not protect the other. A neutral bottom, then, does not, of right, in cases where no compact exists, protect from his enemy the goods of a belligerent power. (Vol. II, American State Papers, Foreign Relations, p. 171.)
The American envoys also affirm that,
The desire of establishing universally the principle that neutral bottoms shall make neutral goods is, perhaps, felt by no nation on earth more strongly than by the United States. Perhaps no nation is more deeply interested in its establishment. It is an object they keep in view, and which, if not forced by violence to abandon it, they will pursue in such manner as their own judgment may dictate as being best calculated to attain it; but the wish to establish a principle is essentially different from a determination that it is already established. The interests of the United States could not fail to produce the wish; their duty forbid them to indulge it when deciding on a mere right. However solicitous America might be to pursue all proper means, tending to obtain for this principle the assent of all or any of the maritime powers of Europe, she never conceived the idea of obtaining that consent by force. (Ibid., p. 172.)
President Monroe's message of December 2, 1823, commenting on the position taken by France in the recent war with Spain, states that instructions have been given to the
LATER ATTITUDE OF UNITED STATES.
United States ministers abroad to make proposals to their respective governments which should look to "the abolition of rivate war on the sea.” The same attitude was also maintained in the message of December 7, 1824. No international agreement was reached, however.
In the message of December 4, 1854, President Pierce, after considerable discussion of the rights of property at sea, says:
Should the leading powers of Europe concur in proposing as a rule of international law to exempt private property on the ocean from seizure by public armed cruisers as well as by privateers, the United States will readily meet them upon that broad ground.
The treaty of the United States with Russia, negotiated by Secretary W. L. Marcy in 1854 and still in force, in Article I provides:
The two High Contracting Parties recognise as permanent and immutable the following principles, to wit:
1st. That free ships make free goods, that is to say, that the effects or goods belonging to subjects or citizens of a Power or State at war are free from capture and confiscation when found on board of neutral vessels, with the exception of articles contraband of war.
2d. That the property of neutrals on board an enemy's vessel is not subject to confiscation unless the same be contraband of war. They engage to apply these principles to the commerce and navigation of all such Powers and States as shall consent to adopt them on their part as permanent and immutable.
To the proposition that the United States accede to the Declaration of Paris in 1856, President Pierce, in his message of December 2, 1856, states that the Government is desirous to secure “the immunity of private property on the ocean from hostile capture. To effect this object, it is proposed to add to the declaration that 'privateering is and remains abolished the following amendment: and that the private property of subjects and citizens of a belligerent on the high seas shall be exempt from seizure by public armed vessels of the other belligerent except it be contraband.”
This proposition was at that time favorably received by several States. Italy, Prussia, and Russia were prepared to accede to the wish of the United States. Some of the leaders in France were similarly inclined. Great Britain was, however, unwilling to give assent.