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LORD STOWELL'S OPINION.
hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjustly engaged in conveying the goods of the enemy, and others will be unjustly suspected of doing it. These inconveniences are more than fully balanced by the enlargement of their commerce; the trade of the belligerents is usually interrupted in a great degree, and falls in the same degree into the lap of neutrals. But without reference to accidents of the one kind or the other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use and habit in times of peace, and which, in fact, can obtain in war by no other title than by the success of one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his title; and such I take to be the colonial trade, generally speaking.
In the same case, speaking further of colonies, he says:
Upon the interruption of a war, what are the rights of belligerents and neutrals, respectively, regarding such places? It is an indubitable right of the belligerent to possess himself of such places, as of any other possession of his enemy. This is his common right, but he has the certain means of carrying such a right into effect if he has a decided superiority at sea. Such colonies are dependent for their existence, as colonies, on foreign supplies; if they can not be supplied and defended, they must fall to the belligerent of course; and if the belligerent chooses to apply his means to such an object, what right has a third party, perfectly neutral, to step in and prevent the execution? No existing interest of his is affected by it; he can have no right to apply to his own use the beneficial consequences of the mere act of the belligerant; and to say, “True it is, you have, by force of arms, forced such places out of the exclusive possession of the enemy, but I will share the benefit of the conquest, and by sharing its benefits prevent its progress. You have in effect, and by lawful means, turned the enemy out of the possession which he had exclusively maintained against the whole world, and with whom we had never presumed to interfere, but we will interpose to prevent his absolute surrender by means of that very opening which the prevalence of your arms alone has effect'd, supplies shall be sent, and their products shall be exported; you have lawfully destroyed his monopoly, but you shall not be permitted to possess it yourself; we insist to share the fruits of your victories, and your blood and treasure have been expended, not for your own interest, but for the common benefit of others.”
The British Order in Council issued June 8, 1793, and followed by others, aimed to restrict neutral commerce with the belligerent. It was conceded under interpretation of the Orders in Council that if goods were brought from the belligerent territory into a neutral country they might be free when transshipped.
Robinson (4 Admiralty Reports, Appendix) summarizes the course of the Orders in Council as affecting trade:
Soon after the commencement of the late war (November 6, 1793), the first set of instructions that issued were framed, not on the exception of the American war, but on the antecedent practice, and directed cruisers “to bring in, for lawful adjudication, all vessels laden with goods, the produce of any colony of France, or carrying provisions or supplies for the use of any such colony." The relaxations that have since been adopted have originated chiefly in the change that has taken place in the trade of that part of the world, since the establishment of an independent government on the continent of America. In consequence of that event, American vessels had been admitted to trade in some articles, and on certain conditions, with the colonies both of this country and France. Such a permission had become a part of the general commercial arrangement, as the ordinary state of their trade in time of peace. The commerce of America was therefore abridged by the foregoing instructions, and debarred of the right generally ascribed to neutral trade in time of war, that it may be continued, with particular exceptions, on the basis of its ordinary establishment. In consequence of representations made by the American Government to this effect, new instructions to our cruisers were issued on the 8th January, 1794, apparently designed to exempt American ships trading between their own country and the colonies of France. The directions were “to bring in all vessels laden with goods, the produce of the French West India Islands, and coming directly from any port of the said islands to any port in Europe.”
In consequence of this relaxation of the general principle in favor of American vessels, a similar liberty of resorting to the colonial market for the supply of their own consumption was conceded to the neutral States of Europe. To this effect, a third set of public instructions was issued on the 25th January, 1798, which recited, as the special course of further alteration, the present state of the commerce of this country, as well as that of neutral countries, and directed cruisers "to bring in all vessels coming with cargoes, the produce of any island or settlement belonging to France, Spain, or Holland, and coming directly from any port of the said islands or settlements to any port of Europe, not being a port of this Kingdom, nor a port of the country to which such ships, being neutral ships, belonged."
Neutral vessels were, by this relaxation, allowed to carry on a direct commerce between the colony of the enemy and their own country; a concession rendered more reasonable by the events of war, which, by annihilating the trade of France, Spain, and Holland had entirely deprived the States of Europe of the opportunity of supplying them
COLORABLE IMPORTATION OF GOODS.
selves with the articles of colonial produce in those markets. This is the sum of the general rule, and of the relaxations, in the order in which they have occurred.
Many protests came from the United States against the position assumed by Great Britain. It was claimed that neutrals had the right “to trade, with the exception of blockades and contrabands, to and between all ports of the enemy, and in all articles, although the trade should not have been opened to them in time of peace."
Naturally the concessions in regard to importation of goods from the colony gave rise to questions as to what constituted an actual importation of the goods and a completed voyage.
In the case of the William there is a full discussion of what constitutes a completed, in distinction from an interrupted, voyage:
What, with reference to this subject, is to be considered a direct voyage from one place to another? Nobody has ever supposed that a mere deviation from the straightest and a shortest course in which the voyage could be performed would change its destination and make it cease to be a direct one within the intendment of the instructions. Nothing can depend on the degree or the direction of the deviation, whether it be of more or fewer leagues, whether toward the coast of Africa or toward that of America. Neither will it be contended that the point from which the commencement of a voyage is to be reckoned changes as often as the ship stops in the course of it. Nor will it the more change because a party may choose arbitrarily, by the ship's papers or otherwise, to give the name of a distinct voyage to each stage of a ship's progress. The act of shifting the cargo from the ship to the shore and from the shore back again to the ship does not necessarily amount to the termination of one voyage and the commencement of another. It may be wholly unconnected with any purpose of importation into the place where it is done. Supposing the landing to be merely for the purpose of airing or drying the goods, or of repairing the ship, would any man think of describing the voyage as beginning at the place where it happened to become necessary to go through such a process? Again, let it be supposed that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading, and that he therefore lands the cargo purely and solely for the purpose of enabling himself to affirm that it was at such other place that the goods were taken on board, would this contrivance at all alter the truth of the fact? Would not the real voyage still be from the place of the original shipment, notwithstanding the attempt to give it the appearance of
having begun from a different place? The truth may not always be discernible, but when it is discovered it is according to the truth and not according to the fiction that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended. That those acts have been attended with trouble and expense, can not alter their quality or their effect. The trouble and expense may weigh as circumstances of evidence to show the purpose for which the acts were done, but if the evasive purpose be admitted or proved, we can never be bound to accept, as a substitute for the observance of the law, the means, however operose, which have been employed to cover a breach of it. Between the actual importation by which a voyage is really ended, and the colorable importation which is to give it the appearance of being ended, there must necessarily be a great resemblance. The acts to be done must be almost entirely the same; but there is this difference between them, the landing of the cargo, the entry at the custom-house, and the payment of such duties as the law of the place requires, are necessary ingredients in a genuine importation; the true purpose of the owner can not be effected without them. But in a fictitious importation, they are mere voluntary ceremonies which have no natural connection whatever with the purpose of sending on the cargo to another market, and which, therefore, would never be resorted to by a person entertaining that purpose, except with a view of giving to the voyage, which he has resolved to continue, the appearance of being broken by an importation which he has resolved not really to make.” (5 Robinson's Admiralty Reports, 387.)
Extension of the doctrine of continuous voyage.- The doctrine of continuous voyages as originally enunciated was intended to apply to comparatively slow-moving sailing vessels. The aim of the rule was to prevent the giving of aid to a belligerent by a neutral. It is undoubtedly proper for one belligerent to take measures which will prevent a neutral from aiding his opponent in his warlike undertaking. Therefore, it is generally held that he may capture and confiscate contraband having a belligerent destination or seize vessel and goods bound for a blockaded port. The question of destination becomes one of great importance. It is undeniable that neutral commerce in goods of whatever kind if bona fide commerce between neutral ports can not be interrupted.
The destination of the vessel is usually evident from the ship’s papers and should always be thus shown. If the port of ultimate destination and all intermediate ports of
EXTENSION OF DOCTRINE.
call are neutral, there can be no question that the destination is neutral. If any port, an intermediate or ultimate port, is belligerent, the destination is considered belligerent.
As a general rule the destination of the cargo is held to follow the destination of the vessel. This might be said to be almost the sole rule for determining the destination of cargo before the American civil war. At that time new positions began to be taken. These positions referred back to English practice in the war with France for support. The doctrine now separates vessel and cargo and considers that a vessel may have a neutral destination, while the cargo may have a belligerent destination or that the cargo may be bound for a blockaded port while the vessel upon which it is for the time being has a neutral destination.
During the American civil war the Supreme Court, referring to the precedents in the opinions of Lord Stowell, gave new interpretations to the principles and a decided extension to the doctrine of continuous voyage. While Lord Stowell bad applied the doctrine to vessels of one of the belligerents carrying on forbidden trade with the enemy, the United States courts extended the doctrine to neutral vessels and cargo sailing from neutral ports with intent to violate blockade even if a neutral port should be the immediate point toward which the vessel was bound with the intent of there interrupting the voyage. Under the ordinary rules of war the vessel and cargo would be liable to capture when bound directly for the blockaded port. The new interpretation extended the liability to the voyage between the port of departure and the port of call provided the intent could be proven in regard to the earlier stage of the voyage.
The law in regard to blockade runners shows effect of intent:
A vessel of this class is engaged ab initio in illegal traffic. From the hour she sails to the hour she returns to her home port she is taking part in existing war-she is assisting or endeavoring to assist one of the belligerents and to thwart the military plans and purposes of the other. It is not necessary that she be taken in the act of breaking the blockade to be in delicto-she is in delicto from first to last. Fig