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defend against any aggression, search, restraint, depredation or seizure which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States.
While insurgents are thus restricted in their actions as regards foreigners, yet foreigners may not with impunity come within the field of actual hostile operations. Admiral Benham in the Brazilian revolution of 1893–94, admitted that any movement on the part of American merchant vessels during the continuance of actual hostile operations was at their own risk. The principle is generally accepted that no obligation to pay an indemnity exists when the party injured in an insurrection brings the injury upon himself.
It is also evident that the existence of an insurrection may cause inconvenience to a foreign state and, in some instances, notably in the case of the United States, it is admitted that it may bring into operation the domestic laws in regard to neutrality.
The neutrality laws of the United States forbid citizens to accept within its jurisdiction a commission or enlist others to serve a foreign prince, state, colony, district, or people at war with a similar body with which the United States is at peace. The courts have held that this applies to cases of insurrection as being war in a “material sense."
Similarly citizens may not fit out vessels. The government may expel foreign vessels from port if they act in violation of the neutrality laws.
Insurgency, then, may be regarded as a fact which is generally accepted in the international practice. The admission of this fact is by such domestic means as may seem expedient. This admission is made with the object of bringing to the knowledge of citizens, subjects, and officers of the state such facts and conditions as may enable them to act properly. In the parent state the method of conducting the
hostilities may be a sufficient act of admission, and in a foreign state i the enforcement of a neutrality law. The admission of insurgency I by a foreign state is a domestic act which can give no offense to the
parent state as might be the case in the recognition of belligerency. Insurgency is not a crime from the point of view of international
law. A status of insurgency may entitle the insurgents to freedom of action in lines of hostile conflict which would not otherwise be accorded, as was seen in Brazil, in 1893–94, and in Chili in 1891. It is a status of potential belligerency which a state, for the purpose of domestic order, is obliged to recognize. The admission of insurgency does not place the foreign state under new international obligations as would the recognition of belligerency, though it may make the execution of its domestic laws more burdensome. It admits the fact of hostilities without any intimation as to their extent, issue, righteousness, etc. The admission of the existence of this status of insurgency makes unnecessary much of the earlier diplomatic circumlocution prevailing between the state divided by domestic strife and foreign states and makes it possible for states to conduct negotiations with much less liability to misunderstandings. This is particularly evident in the diplomatic correspondence of late years. The tendency to depart from or to give special interpretations to the principles ordinarily governing the recognition of belligerency is much less, because when a status of insurgency is admitted many of the domestic reasons for such recognition may disappear and the formal recognition need only take place when the international relations warrant such action. The admission of insurgency is the admission of an easily discovered material fact. The recognition of belligerency involves not only a recognition of a fact, but also questions of policy touching many other considerations than those consequent upon the simple existence of hostilities.
GEORGE GRAFTON WILSON.
THE DOCTRINE OF CONTINUOUS VOYAGES 1
The doctrine of continuous voyages was developed by the English courts to defeat the devices by which American merchantmen endeavored to avoid the rule denying to neutrals in time of war the right to engage in a commerce from which they were excluded in time of peace. Under the system of colonial monopoly which then prevailed the trade with colonial possessions was confined to the ships of the home country. Colonists were regarded as the property of the mother country and as existing exclusively for her use and benefit. They were expected to supply markets for her manufactured goods and products for her markets. With respect to other countries colonies in a commercial sense had no existence. In theory, it has been said, the English colonies were no more to France than as if they were settlements in the mountains of the moon. For commercial purposes they were not on the same planet. Had they been annihilated it would have left no chasm in the commercial map of Germany. Had they been submerged the fact would have found its way into the chronicles of other countries as an interesting event but nothing more.
During the Seven Years' War the maritime supremacy of Great Britain enabled her to sweep French commerce from the seas and thus destroy her carrying trade with her colonies. Unable to maintain the monopoly of this trade, France attempted to retain a part of its benefits by transferring it to the care of the neutral Dutch. At first the Dutch merchants were granted licenses, or passes which authorized them to trade with the French colonies. But Great Britain, refusing to be thus deprived of the advantage she had gained, captured and condemned the ships upon the theory that they had forfeited their neutral character and had been in effect incorporated into the French marine. The force of this contention was such that the French government ceased to issue the licenses and thereafter threw the trade open to the Dutch without restrictions. The British, however, continued to make prizes of the vessels and to condemn them on the ground that the trade was virtually French.
* The Immanuel, 2 C. Rob. 186 (1799), Scott's Cases, 845, Sir Wm. Scott; 4 C. Rob. App. viii, n. 1; Anderson, History of Commerce, vol. i, p. 334.
* Brymer v. Atkins, 1 H. Black. 165, 191, Lord Loughborough. In Berens v. Rucker 1 W. Black. 314, Lord Mansfield said: “The rule is that if a neutral ship trades to a French Colony with all the privileges of a French ship and is thus adopted and naturalized, it must be looked upon as a French ship, and is liable to be taken. Not so, if she has only French produce on board, without taking it in at a French port: for it may be purchased of neutrals."
In the closing years of the eighteenth century the British prize courts announced the general rule that a trade not open to neutrals in time of peace cannot be pursued by them in time of war, and asserted that the principle had been applied as the basis for the condemnation of the Dutch ships during the war of 1756. It is more than probable that this famous doctrine was an afterthought and that it should be known as the rule of the war of 1793.3 Great Britain conceding that neutrals might continue their customary trade,' now denied their right to enter upon a traffic which she claimed was a direct interference with her maritime rights and which enabled the colonies to maintain themselves when they otherwise would have fallen into her possession as the natural result of successful belligerent operations. It was argued that neutrals could not properly claim the right to intrude into a commerce which had been uniformly closed to them and which had been forced open merely by the pressure of war. When an enemy under an entire inability to supply her colonies and carry their products, opened the trade to neutrals it was not an act of will but of necessity that changed the system; the change was the direct and unavoidable consequence of the compulsion of war. It was the measure not of the desires of the mother country but of the force of her enemies.
3 Duer, Mar. Ins., vol. i, p. 762, n. 1; Madison's Examination of British Claims; Madison's Works, vol. 2, p. 226; Wheaton's Note on the Rule of the War of 1756, 1 Wheat. (U. S.) App., p. 507; Pinckney's review of the British proceedings in the Memorial of the Baltimore Merchants, Wheaton's Life of Pinckney, p. 372; 1 Wheat. (U. S.) App., 506. For the British view, see The Practice of the British Prize Courts with Reference to the Colonial Trade of the Enemy during the American War, 6 C. Rob. App. iii. Jenkinson (Lord Liverpool), Discourse on the Conduct of Great Britain with Respect to Neutral Nations. This work was published in 1757, soon after the close of the war, and is apparently the only contemporaneous assertion of the principle or rule of the war of 1756.
Duer contends that the rule was not enforced in any form by the English admiralty prior to 1756, that as then enforced it was founded on a different principle from that subsequently adopted and that during and after the American war it was explicitly abandoned and over-ruled by the Lords of Appeal and by the House of Lords.
* The claim of a right to prohibit all trade with an enemy had been definitely abandoned. See generally, Ward, Rights and Duties of Belligerents, p. 3; Jenkinson, Discourse, etc., p. 36; War with America, Edinburgh Review (Nov., 1812), vol. xx, p. 453; Hennebicq, Principes de Droit Maritime Comparé; Speech of Erskine on the Orders in Council, 10 Cobbett, Parl. Deb. 935. In the Immanuel, 2 C. Rob. 198, Scott's Cases, 845, Sir William Scott said:“The general rule is that the neutral has the right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable.”
"It is,” said Sir William Scott,"an indubitable right of a 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 & 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 cannot 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 belligerent 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.
This rule, which was asserted to be the converse of the general principle that a neutral is entitled to continue his customary trade with the enemy during the war, was enforced by England throughout the period of the Napoleonic wars. Its soundness was denied by neutrals and the right to carry on a trade which had been closed during peace, formed one of the principles of the Armed Neutrality League of 1780. During the war between England and her colonies the so-called rule of the war of 1756 was not asserted by England and the Americans now claimed that if it had ever existed as a principle of international law, it had, through the acquiescence of the maritime powers ceased to have any vital force. But it is probable that Great Britain never consciously abandoned the principle as it appears to have been occasionally asserted and enforced.
During the same period France announced that she had abandoned the system of monopoly and meant thereafter to throw open her entire colonial trade to the world. It is impossible to determine how far
• The Immanuel, 2 C. Rob. 186, Scott's Cas. 845.