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This was the state of the first seizure. It was at first equivocal; and if the matter in dispute had terminated in reconcilation, the seizure would have been converted into a mere civil embargo. That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impressed the hostile character upon the original seizure. It is declared to be no embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus, by which it was done, that it was done hostili animo, and is to be considered as an hostile measure ab initio. The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries, which they have refused to redeem by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities. No such convention is set up on either side, and the State, by directing proceedings against this property for condemnation, has signified a contrary intention. Accordingly, the general mass of Dutch property has been condemned on this retroactive effect; and this property stands upon the same footing.
However artificial, illogical, or unjust we may consider the reasons advanced by Lord Stowell, the case of the Boedes Lust was unquestioned law and actual practice. As late as 1854 Dr. Lushington
With regard to an enemy's property coming to any part of the Kingdom, or being found there, being seizable, I confess I am astonished that doubt should exist on the subject. I apprehend the law has been this, that it is competent for any person to take possession of such property, unless it had any protection by license, or by some declaration emanating by the authority of the Crown, and to assist the Crown to proceed against it to adjudication. (Johanna Emilie, 1854, Spinks, 14).
As Professor John Basset Moore says, in his monumental International Law Digest:
It was formerly the practice not only to seize enemy vessels in port at the outbreak of war, but also to lay an embargo upon them in expectation of war, so that if war should come they might be confiscated. A rule of precisely the opposite effect has been enforced in recent wars."
The innovation came from a quarter in which it was least expected, for on October 4, 1853, Turkey said, in its declaration of war against Russia:
1 Moore, Digest of Inter. Law, sec. 1196.
The Sublime Porte does not consider it just that, agreeable to ancient usage, an embargo should be laid upon Russian merchant vessels. Accordingly, they will be warned to proceed within a period to be fixed hereafter to the Black Sea or to the Mediterranean, as they choose.
The Christian governments did not lag behind the followers of Mahomet, for the Russian Government granted full liberty to Turkish vessels in its ports to return to their destination till the 10th (220) of November. For example, on March 27, 1854, France issued the following declaration:
ARTICLE 1. Six weeks from the present date are granted to Russian ships of commerce to quit the ports of France. Those Russian ships which are not actually in our ports, or which may have left the ports of Russia previously to the declaration of war, may enter into French ports and remain there for the completion of their cargoes until the 9th of May, inclusive.
Great Britain issued a similar declaration on March 29, 1854. Further indulgences were afterward allowed to Russian vessels which had sailed for English and French ports prior to May 15, 1854, and Russia on its part allowed English and French vessels six weeks from April 25, 1854, to load their cargoes and sail from Russian ports in the Black Sea, the Sea of Azof, and the Baltic, and six weeks from the opening of navigation to leave the ports of the White Sea.?
We thus see that the right of capture and confiscation was recognized in the Crimean war, but following the initiative of the Turkish Government, the great maritime States of Great Britain, France, and Russia, while recognizing the right, limited it in such a way as to free from capture and confiscation enemy merchant ships found in their respective ports and to give them a certain time within which to unload their cargo and proceed to their port of destination. Capture is always a harsh measure, but it seems peculiarly harsh to capture and confiscate merchant vessels whose owners did not or could not know of the outbreak of war and who in no way either directly or remotely influenced or were concerned in the outbreak of war. An enemy vessel found upon the high seas or in an enemy port after such warning or after the various dates prescribed might be treated as having voluntarily assumed the risk of capture, and therefore properly exposed to it. The precedent of 1854 was followed in the Prussian-Austrian war of 1866. For example, the Prussian ministerial declaration, June 21, 1866, provided :
2 Halleck, Inter. Law (3d ed., by Baker), Vol. I, 552, 533, note.
Austrian merchant vessels which are now in Prussian ports, or whose masters, unaware of the breaking out of the war, may enter Prussian ports, shall, on condition of reciprocity, have six weeks reckoned from the day of their entry into port to land their cargo and to go away with a new cargo, contraband of war excepted. On the expiration of this term they must leave port. Austrian merchant vessels whose masters are aware of the breaking out of the war are not permitted to enter a Prussian port.
In the great war of 1870 France granted a leave of thirty days, as appears from the following:
Merchant vessels belonging to the enemy which were actually in the French ports, or which entered the ports in ignorance of the war, were allowed a delay of thirty days for leaving, and safe-conducts were given them to return to their port of despatch or of destination. Vessels which took in cargoes for France, or on French account, in enemies or neutral ports before the declaration of war, were not subject to capture, but were allowed to disembark their freights in the French ports, and afterwards received safe-conducts to return to their ports of despatch.“
These European precedents were followed by the United States in the Spanish-American war of 1898. In the President's proclamation, dated April 25, 1898, for the government of the officers of the United States during the war with Spain the fourth rule read as follows:
4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage if, on examination of their papers, it shall
appear that their cargoes were taken on board before the expiration of the above term: Provided, That nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for The Sublime Porte does not consider it just that, agreeable usage, an embargo should be laid upon Russian merchant cordingly, they will be warned to proceed within a perio, hereafter to the Black Sea or to the Mediterranean, as th:
3 Moore, Inter. Law Digest, sec. 1196. - Halleck, Inter. Law (3d ed., by Baker), Vol. I, 532, note.
The Christian governments did not lag behind t Mahomet, for the Russian Government granted full | vessels in its ports to return to their destination ti of November. For example, on March 27, 1854, following declaration:
ARTICLE 1. Six weeks from the present date : ships of commerce to quit the ports of France which are not actually in our ports, or which m Russia previously to the declaration of war, ma and remain there for the completion of their May, inclusive.
Great Britain issued a similar declar Further indulgences were afterward which had sailed for English and Fri 1854, and Russia on its part allower six weeks from April 25, 1854, to lo Russian ports in the Black Sea, th. and six weeks from the opening of the White Sea.?
We thus see that the right of cat nized in the Crimean war, but follo Government, the great maritime and Russia, while recognizing the to free from capture and confis in their respective ports and to to unload their cargo and Capture is always a harsh me capture and confiscate mere could not know the outbr directly or remot influen of war. An eneself
liberal and extensive interpretation were two or more interpretations were
the belligerent in favor of whom the rovision that “Spanish merchant vessels we United States shall be allowed until lling their cargoes and departing” might, id to include (1) only vessels in port on on was issued, namely, April 26, or (2) e day on which war was declared by Connot only those then in port, but also any
or before May 21, whether before or after var or the issuing of the proclamation. The erpretation. While the proclamation did not de vessels which had sailed from the United cement of the war, such vessels were, said Mr.
within its “intention,” under the liberal conurt felt bound to give it. In view of the fact, me of the capture the proclamation of April 25, sel would have been liable to condemnation, had ration was awarded without damages or costs.
D-Japanese war likewise followed the enlightened rom the Crimean war. For example, the Imperial hce of February 9, 1904, provided that sussian merchant ships which happen to be moored in ort at the time of the issue of the present rules may ad their cargo and leave the country not later than
ussian merchant ships which have left Japan in acin the foregoing article and which are provided with a cate from the Japanese authorities shall not be captured
prove that they are steaming back direct to the nearest urt, or a leased port, or to their original destination; this
all, however, not apply in case such Russian merchant ships touched at a Russian port or a leased port.
the Imperial Russian order of February 14, 1904, provided
panese trading vessels which were in Russian ports or havens at the of the declaration of the war are authorized to remain in such ports
re putting out to sea with goods which do not constitute articles of straband during the delay required in proportion to the cargo of the
sel, but which in any case must not exceed forty-eight hours from the me of the publication of the present declaration by the local authorities.