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1. Whether the diligence due from Great Britain, as to any vessel equipped contrary to the first Rule, extended to the pursuit of the ves sel by a naval force after she had passed beyond British jurisdiction?
2. Whether the diligence, so due, extended to an obligation, on the re-entry of any such vessel into a British port, after she had been commissioned by the Confederate States as a public ship of war, to seize and detain her in such port? And,
3. Whether supplies of coal, furnished in British ports to Confederate cruisers, can be regarded as infractions of the second Rule of the Treaty, or as otherwise wrongful against the United States?
XII.-There existed no duty to pursue ships beyond the limits of British jurisdiction.
43. As to the al
suit: The Terceira
Upon the first of these three points, the sole argument of the United States appears to be derived from the precedent of the Terleged duty of pur, ceira expedition in 1829. It is a strange proposition, and expedition. one unsupported by any principle or authority in international law, that, because a Government, which conceived its neutrality laws to have been infringed upon a particular occasion, may have thought fit to visit that offense by extraordinary measures (really in the nature of war or reprisals) beyond its own territory, therefore it placed itself under an obligation to take similar measures upon subsequent occasions, if any such should occur of a like character. In point of fact, there is no similarity between the Terceira case, which (in the view taken of it by the British Government) was an expedition of embodied, tough unarmed troops, proceeding in transports from Great Britain, against an express prohibition of the British Government, for the invasion of a friendly territory, and the departure of unarmed vessels, for the use of the Confederates, from British ports. In point of international law, the British Government was not only under no obligation to pursue the Terceira expedition, but Sir Robert Phillimore (whose authority is so much extolled in the Argument of the United States) distinctly condemns that proceeding. "The Government," he says, "were supported by a majority in both Houses of Parliament; but in the protest of the House of Lords, and in the resolutions of (i. e., moved in) the House of Commons, (which condemned the proceedings of the Government,) the true principles of international law are found." (Commentaries, vol. iii, p. 235.)
The two remaining points are those on which the Arbitrators have consented to receive arguments, embracing other important questions. both of international law, and as to the proper interpretation of the rules of the Treaty of Washington, in addition to the question of the diligence (if any) due from Great Britain to the United States, in those respects.
CHAPTER II.-ON THE SPECIAL QUESTION OF THE EFFECT OF THE COMMISSIONS OF THE CONFEDERATE SHIPS OF WAR, ON THEIR ENTRANCE INTO BRITISH PORTS.
It is contended by the United States that these ships (or at least such of them as had been illegally equipped in British territory) struction of the 1st ought to have been seized and detained, when they came
1. The true con
rule of the Treaty.
into British ports, by the British authorities. This argu
ment depends upon a forced construction of the concluding words of the first Rule, in Article VI of the Treaty of Washington; which calls upon the neutral State to "use due diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use." Does this Rule authorize the Arbitrators to treat it as a duty undertaken by Great Britain, to seize Confederate cruisers commissioned as public ships of war and entering British ports in that character, without notice that they would not be received on the same terms as other public ships of war of a belligerent State, if they were believed to have been "specially adapted, in whole or in part, within British jurisdiction, to warlike use?" The negative answer to this inquiry results immediately from the natural meaning of the words of the Rule itself, which plainly refer to a departure from the neutral territory of a vessel which has not at the time of such departure ceased to be subject, according to the law of nations, to the neutral jurisdiction; and the cruising and carrying on war by which still rests in intention and purpose only, and has not become an accomplished fact, under the public authority of any belligerent Power.
war in neutral ports.
If a public ship of war of a belligerent Power should enter neutral waters in contravention of any positive regulation or prohibition of the neutral Sovereign, of which due notice had of public ships of been given, she might, according to the law of nations, be treated as guilty of a hostile act, a violation of neutral territory; and hostile acts may of course be justifiably repelled by force. But the original equipment and dispatch from neutral territory of the same ship, when unarmed, whether lawful or unlawful, was no hostile act; and a foreign Power, which afterward receives such a ship into the public establishment of its navy, and gives her a new character by a public commission, cannot be called upon to litigate with the neutral Sovereign any question of the municipal law of the neutral State, to whose jurisdiction it is in no matter subject. The neutral State may, if it think fit, give notice (though no authority can be produced for the proposition that it is under any international obligation to do so) that it will not allow the entrance of a particular description of vessels, whether commissioned or not, into its waters; if it gives no such notice it has no right, by the law of nations, to assume or exercise any jurisdiction whatever over any ship of war coming into its waters under the flag and public commission of a recognized belligerent. Such a ship, committing no breach of neutrality while within neutral waters, is entitled to extra-territorial privileges; no court of justice of the neutral country can assume jurisdiction over her; the flag and commission of the belligerent power are conclusive evidence of his title and right; no inquiry can be made, under such circumstances, into anything connected with her antecedent ownership, character, or history. Such was the decision (in accordance with well-established principles of international law) of the highest judicial authority in the United States in 1811, in the case of the Exchange, a ship claimed by American citizens, in American waters, as their own property; but which, as she had come in as a public ship of war of France, under the commission of the first Emperor Napoleon, was held to be entitled to recognition as such in the waters of the United States, to the entire exclusion of every proceeding
The proceedings of the British Government, in the case of the Tuscaloosa, turned entirely upon the question whether she was, or was not, a prize, whose entrance into a British port was prohibited by the rules publicly issued by the Queen at the beginning of the war.
and inquiry whatever, which might tend in any way to deprive her of the benefit of that privileged character. The principles laid down in the following extracts from that judgment are in accordance with those which will be found in every authoritative work on international law which treats of the subject; (see the passages from Ortolan, Hautefeuille, Pando, &c., cited at length in the note to the British Counter Case, pp. 14, 15; also Azuni, vol. ii, (Paris edition, 1805,) pp. 314, 315. &c.; and Bluntschli's "Droit international," Article 321, p. 184 of the French translation by Lardi :)
The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all Sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. This consent may, in some instances, be tested by common usage and by common opinion growing out of that usage.
A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly, and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.
3. The case of the Exchange.
This full and absolute territorial jurisdiction being alike the attribute of every Sovereign, and being incapable of conferring extra-territorial power, would not seem to contemplate foreign Sovereigns nor their sovereign rights as its objects. One Sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its Sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.
This perfect equality and absolute independence of Sovereigns, and this common interest impelling them to mutual intercourse and an interchange of good offices with each other, have given rise to a class of cases in which every Sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.
If, for reasons of state, the ports of a nation generally, or any particular ports, be closed against vessels of war generally, or the vessels of any particular nation, notice is usually given of such determination. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports, and to remain in them, while allowed to remain, under the protection of the Government of the place.
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant-vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraetion and the Government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign Sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.
But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and direct com mand of the Sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign State. Such interference cannot take place without affecting his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port may reasonably be construed, and it seems to the court ought to be construed, as containing an exemption from the jurisdiction of the Sovereign within whose territory she claims the rights of hospitality.
Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but certainly, in practice, nations have not yet asserted their jurisdiction over the public armed ships of a foreign Sovereign entering a port open for their reception.
4. Other authorities.
The words of Bluntschili are:
Exceptionellement on accorde l'exterritorialité aux navires de
guerre étrangers, lorsqu'ils sont entrés dans les eaux d'un état avec la permission de ce dernier.
Mr. Cushing, when Attorney-General of the United States, in 1855, thus stated the rule, as received in the United States:
A foreign ship of war, or any prize of hers in command of a public officer, possesses, in the ports of the United States, the right of exterritoriality, and is not subject to the local jurisdiction.
It cannot, therefore, be supposed that when two nations, 5. The rule cannot by both of which these principles of international law had require an act wrona been habitually acted on, recognized, in the first Rule of law. the Treaty of Washington, an obligation to "use due diligence to prevent the departure of a ship intended to cruise," &c., from the "neutral jurisdiction," either of them meant to authorize the other to demand, under any circumstances, a violation of these principles, in the case of any ship cruising as a ship of war by the public authority of a belligerent at the time of her entrance into neutral waters, and which, according to these principles, was there entitled to the privilege of exterritoriality, and was not subject to the neutral jurisdiction. Had an innovation of so important and extraordinary a kind been intended, it would certainly have been unequivocally expressed; and it would have become the plain duty of any neutral State, which had entered into such an engagement, to give notice of it beforehand to all belligerent Powers before it could be put in force to their prejudice. It is impossible that an act which would be a breach of public faith and of international law toward one belligerent could be held to constitute any part of the "diligence due" by a neutral to the other belligerent. The rule says nothing of any obligation to exclude this class of vessels, when once commissioned as public ships of war, from entrance into neutral ports upon the ordinary footing. If they were so excluded by proper notice they would not enter, and the rule (in that case) could never operate to prevent their departure. If they were not so excluded, instead of being "due diligence," it would be a flagrant act of treachery and wrong to take advantage of their entrance in order to effect their detention or capture. Can Her Majesty be supposed to have consented to be retrospectively judged, as wanting in due diligence, because, not having excluded these Confederate ships of war from her ports by any prohibition or notice, she did not break faith with them, and commit an outrage on every principle of justice and neutrality by their seizure? The rules themselves had no existence at the time of the war; the Confederates knew, and could know, nothing of them; their retrospective application cannot make an act ex post facto "due," upon the footing of "diligence," to the one party in the war, which, if it had been actually done, would have been a wholly unjustifiable outrage against the other.
These principles receive illustration from the controversy which took place in Decemcer, 1861, between Brazil and the United States, on the subject of the reception of the Sumter in Brazilian ports. Señor Taques, the Foreign Minister of Brazil, wrote thus to Mr. Webb, the United States Minister at Rio, on the 9th December, 1861:
Some Powers have adopted as a rule not to admit to entry in their ports either the privateers or vessels of war of belligerents; others are holden to do so under the obligations of treaties concluded with some of the belligerents before or during the war.
It has been the practice of the United States to restore prizes, when brought into their ports, if made by ships illegally equipped in their territory, on proof of such illegal equipment in their courts of law; all the world having notice of their rule and practice in this respect. It has not been their rule or practice to seize or detain, on the ground of any such illegal equipment, ships afterward commissioned, and coming into their ports as public ships of war of a recognized belligerent Power.
Brazil has never placed herself in this exceptional condition, but, under the general rule, which admits to the hospitality of her ports ships of war, and even to a privateer compelled by stress to seek it, provided she brings no prizes, nor makes use of her position in such ports for acts of hostility by taking them as the basis for her operations.
The rule adopted by civilized nations is to detain in port vessels equipped for war until twenty-four hours after the departure of any hostile vessel, or let them go, requir ing from the commanders of vessels of war their word of honor, and from privateers pecuniary security and promise, that they will not pursue vessels which had left port within less than twenty-four hours before them. Nor do the rules of the law of nations nor usage, nor the jurisprudence which results from treaties, authorize a neutral to detain longer than twenty-four hours in his ports vessels of war or privateers of belligerents, unless it could be done by the indirect means of denying them facilities for obtaining in the market the victuals and ship's provisions necessary to the continuance of their voyages. A neutral who should act in this manner, incarcerating in his ports the vessels of one of the parties, would take from one of the belligerents the exercise of his rights, turn himself by the act into an ally and co-operator with the other belligerent, and would violate his neutrality.
Without a previous declaration, before the principles adopted in Brazil and in the United States being known, such a proceeding on the part of the Brazilian authorities toward the Sammter would take the character of a snare, which would not meet the esteem or approval of any Government.
The absence of any rule obliging a neutral to exclude from his ports foreign ships of war, if originally adapted, wholly or in part,
6. There is no rule
exclude from his
obliging a neutral to to warlike use within the neutral jurisdiction, rests evidently ports ships of this upon good reasons, and cannot have been unintentional. description. Whatever, as a matter of its own independent discretion and policy, a neutral Government may, at any time, think fit to do in such cases, it will certainly do with all public and proper notice, which cannot be retrospectively assumed to have been given, or agreed to be given, contrary to notorious facts. The reasons, which in some cases might make a policy of this kind just and reasonable, as against a Power which, first infringing the laws of a neutral State by procuring vessels to be illegally equipped within its territory, might afterward employ them in war, would not apply to other cases, which may easily be sup posed; e. g., if such a vessel, having been disposed of to new owners after her first equipment, were afterward commissioned by a Power not in any sense responsible for that equipment. The offense is one of persons, not of things; it does not adhere necessarily to the ship into whatever hands she may come; even a ship employed by pirates in their piracy, if she is afterward (before seizure in the exercise of any lawful jurisdiction) actually transferred to innocent purchasers, ceases to have the taint of piracy in the hands of such new owners, as was ely decided by the Judicial Committee of the English Privy Council in the case of the Dominican ship Telegrafo. Nor, in a question of this kind between Great Britain and the Confederate States, is it possible to assume (in view of the facts that the interpretation of the British prohibitive law was disputed and doubtful, and that international law had never treated the construction, equipment, and dispatch of unarmed ships of war by neutral shipbuilders, to the order of a belligerent, as a violation of the territory or sovereignty of the neutral State) that the authorities of the Confederate States, when they commissioned the vessels in question, were actually in the situation of a Power which had willfully infringed British law, or British neutrality, within British territory.
Even if the latter part of the first Rule could be construed as the United States suggest, with respect to the subject of the
7. In any view the
latter part of Rule 1 present chapter, it would not apply to the Georgia—a ship Georgia or the Shen Whose special adaptation, within British jurisdiction, to war
cannot to the
like use, the Tribunal is asked to take for granted without
1 British App., vol. vi, p. 14.