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their voyage), or any other article prohibited or contraband of war, or any despatch of or to the Spanish Government.
The Spanish Government issued a royal decree, dated April 23, 1898, which permitted, five days from the date of publication, the departure of American ships from Spanish ports. It was not so liberal as the American proclamation, for the Spanish decree did not in terms prohibit the capture of the American merchantmen after their departure nor did it provide for the entrance and discharge of American ships sailing for Spanish ports before the war. captures were made by Spain, the exact nature and extent of the immunity were not tested before a prize court. The President's proclamation, however, was passed upon by the courts of the United States, and the interpretation thereof was liberal, in accordance with its spirit. The leading case on the subject is the Buena Ventura (1899, 175 U. S., 384). The vessel in question was a Spanish merchant ship captured on the morning of April 22, 1898, soine eight or nine miles off the Florida coast.
At the time of capture the vessel was on a voyage from Ship Island, Mississippi, to Rotterdam, by way of Norfolk, Va., with a cargo of lumber. She arrived at Ship Island March 31, 1898, and sailed for Rotterdam April 19, with a permit, obtained in accordance with the laws of the United States, to call at Norfolk for supply of bunker coal. When captured on April 22 she made no resistance, had on board no military or naval officer, and carried no arms or munitions of war. The question at issue was therefore whether the vessel could be brought within the exemption of the fourth rule of the proclamation of 1898 as to
Spanish merchant vessels, in any ports or places within the United States.” In delivering the opinion of the Supreme Court, Mr. Justice Peckham observed, to quote the language of Professor Moore - 5 that the vessel in question, as a merchant vessel of the enemy carrying on an innocent commercial enterprise at or just prior to the time when hostilities began, belonged to a class which the United States had always desired to treat with great liberality, and which civilized nations had in their later practice in fact so treated. The President's proclamation should therefore receive the most liberal and extensive interpretation” of which it was capable, and where two or more interpretations were possible the one most favorable to the belligerent in favor of whom the proclamation was issued. The provision that “ Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing ” might, said the learned justice, be held to include (1) only vessels in port on the day when the proclamation was issued, namely, April 26, or (2) those in port on April 21, the day on which war was declared by Congress to have begun, or (3) not only those then in port, but also any that had sailed therefrom on or before May 21, whether before or after the commencement of the war or the issuing of the proclamation. The court adopted the last interpretation. While the proclamation did not in so many words include vessels which had sailed from the United States before the commencement of the war, such vessels were, said Mr. Justice Peckham, clearly within its “intention,” under the liberal construction which the court felt bound to give it. In view of the fact, however, that at the time of the capture the proclamation of April 25, without which the vessel would have been liable to condemnation, had not been issued restitution was awarded without damages or costs.
5 Digest of Inter. Law, sec. 1196.
The recent Russo-Japanese war likewise followed the enlightened practice dating from the Crimean war. For example, the Imperial Japanese ordinance of February 9, 1904, provided that —
ARTICLE 1. Russian merchant ships which happen to be moored in any Japanese port at the time of the issue of the present rules may discharge or load their cargo and leave the country not later than February 16.
ART. 2. Russian merchant ships which have left Japan in accordance with the foregoing article and which are provided with a special certificate from the Japanese authorities shall not be captured if they can prove that they are steaming back direct to the nearest Russian port, or a leased port, or to their original destination; this measure shall, however, not apply in case such Russian merchant ships have once touched at a Russian port or a leased port.
And the Imperial Russian order of February 14, 1904, provided that
Japanese trading vessels which were in Russian ports or havens at the time of the declaration of the war are authorized to remain in such ports before putting out to sea with goods which do not constitute articles of contraband during the delay required in proportion to the cargo of the vessel, but which in any case must not exceed forty-eight hours from the time of the publication of the present declaration by the local authorities. It is thus seen that in no less than five great wars of the last fifty years an exemption is made in favor of enemy merchant vessels in port at the outbreak of hostilities, and that a longer or shorter period is fixed within which such vessels may safely leave their ports and proceed to their destination. Although the custom is modern, it can not be said to be limited to any particular quarter of the world; for the states generally have recognized the exemption in their recent wars, not only in Europe and America, but also in Asia. Such a custom, however recent it may be, may rightly claim to form a part of the law of nations. It is therefore a source of regret that the Second Peace Conference refused to recognize it as a right but simply as a privilege, a délai de faveur, which may be accorded or refused at the option of the belligerent, and that the privilege was unaccompanied by any recommendation of a period of time within which the privilege in question should be accorded. The exact wording of the first two articles of the convention follows:
ARTICLE 1. When a merchant ship belonging to one of the belligerent powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely, either immediately or after a reasonable number of days of grace, and to proceed, after being furnished with a pass, direct to its port of destination or any other port indicated.
The same rule should apply in the case of a ship which has left its last port of departure before the commencement of the war and entered a port belonging to the enemy while still ignorant that hostilities had broken out.
ART. 2. A merchant ship unable, owing to circumstances of force majeure, to leave the enemy port within the period contemplated in the above article, or which was not allowed to leave, can not be confiscated.
The belligerent may only detain it, without payment of compensation, but subject to the obligation of restoring it after the war, or requisition it on payment of compensation.
It may be said that the expression “it is desirable " that the vessels should be allowed to depart freely amounts in reality to a command, and that the practice of the future will recognize the custom as freely as it has done in the past, thus establishing as a right what the conference modestly denominates a privilege. If such be the case the opposition of Great Britain to the recognition of the right will be as futile in practice as it was unreasonable at the conference.
Passing to the second branch of the question, namely, the treatment accorded to enemy merchant ships which prior to the outbreak of war had left port destined to any port or place of the other belligerent, the enlightened policy of the European states in their recent wars of 1854, 1866, and 1870, has been stated in the extracts already quoted from their respective declarations. The more recent practice will be briefly set forth. The fifth rule of the Presidential proclamation of April 26, 1898, provided :
5. Any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States shall be permitted to enter such port or place, and to discharge her cargo, and afterward forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded.
It has previously been observed that the Spanish decree did not provide for the entrance and discharge of American ships sailing for Spanish ports before the war, but, as no captures were made by Spain, the less liberal provisions of the Spanish decree did not affect American commerce. Rule 5 of the American proclamation was judicially interpreted in the case of the Pedro (175 U. S., 354). This vessel, sailing under the Spanish flag and officered and manned by Spaniards, was loaded in Antwerp for Cuba, and on March 18, 1898, was chartered by an American firm to proceed to Pensacola, Fla., or Ship Island, Miss., for a cargo of lumber for Rotterdam or Antwerp. Shortly after this date the Pedro sailed from Antwerp with a cargo of merchandise for Havana and Cienfuegos. She arrived at Havana on April 27 and, after discharging her cargo, sailed on the 22d for Santiago, Cuba, with a small quantity of general merchandise taken at Havana. While pursuing the voyage from Havana to Santiago, Cuba, she was captured on the same day, April 22, a few miles from Havana by the United States blockading fleet. In delivering the opinion of the Supreme Court, Chief Justice Fuller held that the Pedro did not fall within the exemption contained in rule 5; that she lay at Havana from the 17th of April to the 22d; that she cleared from Havana April 22, a day after the war began; that she had then no cargo for any port of the United States, but only for an enemy port, namely, Santiago and Cienfuegos. It could not therefore be said that she had left a foreign port in ignorance of the “ perilous condition of affairs; " that it must be assumed that she either knew of hostilities or had been advised that hostilities were imminent. She was not bringing a cargo to the United States for the increase of its resources and the convenience of its citizens, but she was an enemy vessel trading with an enemy port. The Supreme Court therefore affirmed the condemnation of the District Court and held squarely that the contract to proceed ultimately to a port of the United States did not bring the vessel within the exemption of the fifth rule. While the decision of the Supreme Court is technically correct, it would seem that it was illiberal both in its interpretation and application of the exemption meant to be confererd by the fifth rule, as was pointed out by Mr. Justice White in a strong dissenting opinion, in which Justices Brewer, Shiras, and Peckham concurred. While it is true that a statute in derogation of the common law should be strictly construed, this principle clearly should not apply to an exception in the common law of nations made in the interest of innocent enemy subjects engaged in innocent commerce.
In the recent Russo-Japanese war an indemnity of a like nature was extended by article 3 of the Imperial Japanese ordinance of February 9, 1904, the exact text of which is as follows:
Russian steamers which may have left for a Japanese port before February 16 may enter our ports, discharge their cargoes at once, and leave the country. The Russian steamers coming under the above category shall be treated in accordance with article 2 [previously quoted].
It will be seen, therefore, that recent enlightened practice permits enemy merchant ships which have left their last port of departure before the commencement of the war, or within a certain fixed period, to continue their journey unmolested to the port or place within the territory of the other belligerent, to unload their cargoes and to return to the home port without danger of capture during the voyage. The convention concerning the status of enemy merchant ships un