Chapter XXIV: Neutral Relations Between States and Individuals

130. +Ordinary Commerce.+
(_a_) Destination.
(_b_) Ownership of goods.
(_c_) Nationality of vessel.
(_d_) Declaration of Paris.

131. +Contraband.+

132. +Penalty for Carrying Contraband.+

133. +Unneutral Service.+

134. +Visit and Search.+
(_a_) Right.
(_b_) Object.
(_c_) Method.
(_d_) Ship's papers.
(_e_) Grounds of seizure.
(_f_) Seizure.

135. +Convoy.+

136. +Blockade.+
(_a_) Historical.
(_b_) Conditions of existence.
(_c_) A war measure.
(_d_) Who can declare.
(_e_) Notification.
(_f_) Must be effective.
(_g_) Cessation.

137. +Violation of Blockade.+

138. +Continuous Voyages.+

139. +Prize and Prize Courts.+

§ 130. Ordinary Commerce

As a general principle, subjects of a neutral state may carry on commerce in the time of war as in the time of peace. At the same time, owing to the fact of war, a belligerent has the right to take measures to reduce his opponent to subjection. The general right of the neutral and the special right of the belligerent come into opposition. The problem becomes one of "taking into consideration the respective rights of the belligerents and of the neutrals; rights of the belligerents to place their opponent beyond the power of resistance, but respecting the liberty and independence of the neutral in doing this; rights of the neutrals to maintain with each of the belligerents free commercial relations, without injury to the opponent of either."[433]

In regard to commerce in the time of war, the matters of destination, ownership of goods, and the nationality of the vessel have been the facts ordinarily determining the treatment by the belligerent. If there is nothing hostile in the destination of the commercial undertaking, in the nature of the goods, or in the means of transport, the commerce is free from interruption by the belligerent.

(_a_) The questions arising in regard to =destination= will naturally be treated under the subjects of blockade and continuous voyage.

(_b_) =The ownership of goods= has usually been a fact determining their liability to capture.

The rules of the _Consolato del Mare_, compiled in the thirteenth or fourteenth century, looked to the protection of the neutral vessel and the neutral goods on the one hand, and to the seizure of the enemy vessel and of the enemy goods on the other hand. The goods of an enemy could be seized under a neutral flag, and the goods of a neutral were free even though under an enemy flag. This doctrine considered mainly the character of the goods. These rules were held in favor till the sixteenth century, from which time the practice varied greatly, sometimes being regulated by treaty. In the sixteenth century France advanced the doctrine of _hostile contagion_, maintaining the principle of "enemy ships, enemy goods," and "enemy goods, enemy ships."[434] The practice of states was far from uniform in the various wars.

(_c_) =The nationality of the vessel= has been sometimes regarded as the sole fact determining liability of goods to capture, and at other times affecting only the vessel itself.

Under the rules of the _Consolato_, the flag determined the liability of the vessel only. Under the French ordinances, the flag contaminated the goods. From 1778, the doctrine that the neutral flag covered enemy goods became more commonly accepted. This was especially emphasized by the armed neutrality of 1780.

Some of the agreements of the United States will show the variety of practice even in recent times. By Art. XXIII. of the Treaty of 1778 with France it is provided, "that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted." In the Treaty of 1785 with Prussia occurs the following: "free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other." In the Treaty of 1795 with Spain is a similar provision, excepting, however, contraband of war. It is asserted in the Treaty of 1799 with Prussia that as the doctrine of "free ships make free goods" has not been respected "during the two last wars," and in the one "which still continues," the contracting parties propose "after the return of a general peace" to confer with other nations and meantime to observe "the principles and rules of the law of nations generally acknowledged." The Treaty of 1819 with Spain interprets the clause of the Treaty of 1795, in which it is stipulated that the flag shall cover the property, by saying, "that this shall be so understood with respect to those Powers who recognize this principle; but if either of the two contracting parties shall be at war with a third party, and the other neutral, the flag of the neutral shall cover the property of enemies whose Government acknowledges this principle, and not of others." The Treaty of 1794 with Great Britain expressly provides that property of an enemy on a neutral vessel shall be good prize. In 1887 it was agreed in the treaty with Peru "that the stipulation in this article declaring that the flag shall cover the property shall be understood as applying to those nations only who recognize this principle; but if either of the contracting parties shall be at war with a third, and the other shall remain neutral, the flag of the neutral shall cover the property of enemies whose Governments acknowledge this principle, and not that of others."[435] In spite of these variations, the practice of the United States has been much more uniform than that of the states in which the foreign relations have exercised a more direct influence.

(_d_) Since 1856 the principles enunciated in the =Declaration of Paris= have generally prevailed. The provisions in regard to the flag and goods are:--

"2. The neutral flag covers enemy's goods, with the exception of
contraband of war.

"3. Neutral goods, with the exception of contraband of war, are not
liable to capture under the enemy's flag."[436]

This agreement bound only those states which signed it. A few states, including the United States, Spain, Mexico, Venezuela, and China, did not accede to these provisions. The United States declined because the government desired a provision exempting all private property at sea from capture.[437] In the War of 1898, the United States announced that the rules of the Declaration of Paris would be observed, and Spain made a similar announcement except as to the clause in regard to privateering.[438] Spain did not, however, make use of privateers. The goods of a neutral embarked in a belligerent carrying vessel are liable to the damages or destruction which may be the consequence of necessary acts of war. Destruction not the result of such necessary acts would be in violation of the spirit of the Declaration of Paris, and the neutral might justly demand reparation.

The rules of the Declaration of Paris have been so generally accepted in practice that there is little possibility that they will be disregarded by the civilized states of the world.

§ 131. Contraband

Contraband is the term applied to those articles which from their usefulness in war a neutral cannot transport without risk of seizure. While a state is under obligation to prevent the fitting out of hostile expeditions and to refrain from furnishing belligerent ships warlike material, a state is not bound to prevent the traffic of its citizens or subjects in contraband of war. Such articles as are contraband may be seized on the high seas,[439] and by the Declaration of Paris are not protected by the neutral flag.[440]

Of the articles of commerce themselves, Grotius makes three general classes:--

"1. Those which have their sole use in war, such as arms."

"2. Those which have no use in war, as articles of luxury."

"3. Those which have use both in war and out of war, as money,
provisions, ships, and those things appertaining to ships."[441]

Grotius regards articles of the first class as hostile, of the second as not a matter of complaint, and of the third as of ambiguous use (_usus ancipitis_), of which the treatment is to be determined by their relation to the war.

While the general principle may be clear, the application of the principle is not simple. Those articles whose sole use is in war are, without question, contraband. Articles exclusively for peaceful use are not contraband. Between these two classes are many articles in regard to which both practice and theory have varied most widely.[442] The theorists have usually endeavored to give the neutral the largest possible liberty in commerce, on the ground that those who were not parties to the war should not bear its burdens. This has been the opinion most approved by the jurists of Continental Europe. Great Britain and the United States have been inclined to extend the range of articles which might on occasion be classed as contraband.

The attitude of the United States may be seen from the following enumeration of articles, which is practically the same as was declared contraband in the Spanish War of 1898:--

"+Absolutely Contraband.+--Ordnance; machine guns and their appliances
and the parts thereof; armor plate and whatever pertains to the
offensive and defensive armament of naval vessels; arms and
instruments of iron, steel, brass, or copper, or of any other
material, such arms and instruments being specially adapted for use in
war by land or sea; torpedoes and their appurtenances; cases for
mines, of whatever material; engineering and transport materials, such
as gun carriages, caissons, cartridge boxes, campaigning forges,
canteens, pontoons; ordnance stores; portable range finders; signal
flags destined for naval use; ammunition and explosives of all kinds
and their component parts; machinery for the manufacture of arms and
munitions of war; saltpeter; military accouterments and equipments of
all sorts; horses and mules."

"+Conditionally Contraband.+--Coal, when destined for a naval station,
a port of call, or a ship or ships of the enemy; materials for the
construction of railways or telegraphs; and money; when such materials
or money are destined for the enemy's forces; provisions, when
actually destined for the enemy's military or naval forces."[443]

The range of articles classed as contraband will naturally vary from time to time as changes in the method of carrying on war occur. Horses have usually been regarded as contraband by France, England, and the United States, except in their dealings with Russia, which state has always opposed this inclusion. The increasing importance of coal during the latter half of the nineteenth century has led to the policy of determination of its character by its destination. Provisions are in practically the same position as coal.[444] In the war with Spain in 1898, the United States included as absolute contraband, horses, and as conditionally contraband, coal, money, and provisions, which Spain did not mention. Spain mentioned by name sulphur, which the United States did not specify, though it might be included in some of the general classes. "As the supply of sulphur is chiefly obtained from Sicily, the Spanish government would have had a rare opportunity to seize and confiscate it as it passed through the Straits of Gibraltar. But upon the request of the Italian government it ... refrained from treating sulphur as contraband."[445]

§ 132. Penalty for Carrying Contraband

No penalty attaches to the simple act of transportation of contraband. It is the hostile destination of the goods that renders them liable to penalty and the vessel liable to delay or other consequences according to circumstances.

The general rules are as follows:--

1. When the ship and the contraband cargo belong to the same owner, both are liable to be condemned.

2. When the ship and the contraband cargo belong to different owners, the cargo only is liable to be condemned.

3. When the owner of the cargo is also part owner of the ship, it has been held that his part of the ship is also liable to be condemned.[446]

4. When non-contraband goods on the ship belong to the same owner with the contraband goods, it has been held that these goods are also liable to be condemned. "To escape from the contagion of contraband, the innocent articles must be the property of a different owner."[447]

5. A vessel which would otherwise be free when carrying contraband may become liable to condemnation on account of fraud. Such fraud may consist in bearing false papers or claiming a false destination.

6. In certain instances, vessels have been held liable to condemnation because carrying articles which by treaty between the state of the captor and the state of the carrier are specially forbidden.

As Perels maintains, it is difficult to see how the fourth rule can be enforced consistently with the Declaration of Paris, by which they would be exempt even if belonging to the enemy.[448]

The neutral carrier loses freight on the contraband goods and suffers such inconvenience and delay as the bringing in of the contraband and its adjudication in a proper court may entail.

Under special circumstances goods have been treated as liable to preëmption instead of absolute seizure. Of this Hall says, "In strictness every article which is either necessarily contraband, or which has become so from the special circumstances of war, is liable to confiscation; but it is usual for those nations who vary their list of contraband to subject the latter class to preëmption only, which by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent on the amount."[449] This practice is not viewed with favor upon the Continent as indicating a departure from the generally accepted practice.[450]

§ 133. Unneutral Service

Unneutral service differs from the carriage of contraband, particularly in being hostile in its nature and involving a participation in the contest. Such service involves assistance in the performance of warlike acts. While the destination is a question of vital importance in the case of contraband, the intent of the act is a matter of highest importance in cases of unneutral service.

The acts generally regarded as in the category of unneutral service are:--

1. The carriage of enemy dispatches.

2. The carriage of certain belligerent persons.

3. Aid by auxiliary coal, repair, supply, or transport ships.

4. Knowing coöperation in the transmission of certain messages and information to the belligerent.

(1) Of the _carriage of dispatches_, in the case of the _Atalanta_, Lord Stowell said:--

"How is the intercourse between the mother country and the colonies
kept up in the time of peace? By ships of war or by packets in the
service of the state. If a war intervenes, and the other belligerent
prevails to interrupt that communication, any person stepping in to
lend himself to effect the same purpose, under the privilege of an
ostensible neutral character, does in fact place himself in the
service of the enemy state."[451]

"A neutral vessel carrying hostile dispatches, when sailing as a
dispatch vessel practically in the service of the enemy, is liable to
seizure. Mail steamers under neutral flags carrying dispatches in the
regular and customary manner, either as a part of their mail in their
mail bags, or separately as a matter of accommodation and without
special arrangement or remuneration, are not liable to seizure and
should not be detained, except upon clear grounds of suspicion of a
violation of the laws of war with respect to contraband, blockade, or
unneutral service, in which case the mail bags must be forwarded with
seals unbroken."[452]

Regular diplomatic and consular correspondence is not regarded as hostile unless there is some special reason for such belief.

(2) The limitation in regard to the _carriage of certain belligerent persons_ applies to those who travel in such manner as to make it evident that they travel in the military or naval service of the belligerent state. If the carriage of the person or persons is paid by the state, or is done under state contract, it is regarded as sufficient evidence of unneutral service.[453] The neutral carrier engaged in ordinary service is not obliged to investigate the character of persons who take passage in the usual way. The case of the _Trent_ had no particular bearing upon this subject, as it merely emphasized an already settled principle "that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons."[454]

(3) _Auxiliary coal, repair, supply, or transport ships_, as, directly in the service of the belligerent, have an undoubted hostile character.[455]

(4) Knowing coöperation in the _transmission of certain messages_ for the belligerent renders the ship liable to penalty. Such an act as the repetition of signals would fall in this class. Submarine telegraphic cables between a belligerent and a neutral state may become liable to censorship or to interruption beyond neutral jurisdiction if used for hostile purposes. A neutral vessel engaged in the laying, cutting, or repair of war telegraph cables is held to be performing unneutral service.

The general penalty for the performance of unneutral service is the forfeiture of the vessel so engaged.

§ 134. Visit and Search

(_a_) "The right of visiting and searching merchant ships upon the seas--whatever be the ships, whatever be the cargoes, whatever be the destinations--is an incontestable right of the lawfully commissioned cruisers of a belligerent nation,"[456] is the statement of the general principle laid down in the case of the _Maria_. Judge Story says that the right is "allowed by the general consent of nations in the time of war and limited to those occasions."[457] There is, however, a qualified right of search in the time of peace in case of vessels suspected of piracy or of slave trade. Under these circumstances the right must be exercised with the greatest care, otherwise the searching party is liable to damages.[458]

(_b_) =The Object.= In the time of war the right is exercised in order to secure from the neutral the observance of the laws of neutrality, or specifically, according to the regulations of the United States:--

1. To determine the nationality of a vessel.

+Note.+ The right of approach to ascertain the nationality of a vessel
is generally allowed in time of peace. "International Law," Naval War
College, p. 165.

2. To ascertain whether contraband of war is on board.

3. To ascertain whether a breach of blockade is intended or has been
committed.

4. To ascertain whether the vessel is engaged in any capacity in the
service of the enemy.[459]

(_c_) =The Method.= The vessel is usually brought to by firing a gun with a blank charge, or if this is not sufficient, a shot across the bows or even by the use of necessary force. The cruiser should then send a small boat with an officer to conduct the search. Arms may be carried in the boat but not upon the persons of the men. The officer should not be accompanied on board the vessel by more than two men. He should examine the papers of the vessel. "If the papers show contraband, an offense in respect to blockade, or enemy service, the vessel should be seized; otherwise she should be released, unless suspicious circumstances justify a further search. If the vessel be released, an entry in the log book to that effect should be made by the boarding officer."[460]

(_d_) =Ship's Papers.= The papers expected to be on board as evidence of the character of the vessel are:--

1. The register.

2. The crew and passenger list.

3. The log book.

4. A bill of health.

5. The manifest of cargo.

6. A charter party, if the vessel is chartered.

7. Invoices and bills of lading.[461]

(_e_) =Grounds of Seizure.= It is generally held that a vessel may be seized in case of:--

1. Resistance to visit and search.

2. Clear evidence of attempt to avoid visit and search by escape.

3. Clear evidence of illegal acts on the part of the neutral vessel.

4. Absence of or defect in the necessary papers.

(_a_) Fraudulent papers.

(_b_) Destruction, defacement, or concealment of papers.

(_c_) Simple failure to produce regular papers.

(_f_) =Seizure.= In case of seizure it is held that the neutral vessel and property vests in the neutral till properly condemned by a duly authorized court. The captor is therefore under obligation:--

1. To conduct the seizure with due regard to the person and property
of the neutral.

2. To exercise reasonable diligence to bring the capture quickly to
a port for its adjudication.

3. To guard the capture from injury so far as within his power.

Failure to fulfill these obligations renders the belligerent liable to damages.[462]

In the Chino-Japanese War of 1894, the Japanese war vessels visited eighty-one neutral vessels but only one was brought to the prize court.[463]

§ 135. Convoy

A neutral merchant vessel is sometimes placed under the protection of a ship of war of its own state, and is then said to be under convoy.

It has been claimed by many authorities, particularly those of Continental Europe, that such a merchant vessel is exempt from visitation and search upon the declaration of the commander of the neutral ship of war that the merchantman is violating no neutral obligation. England has uniformly denied the validity of this claim.

Practice has been very divergent in most states. From the middle of the seventeenth century the right of convoy has been asserted. From the end of the eighteenth century the claim has gained in importance.[464] The United States has made many treaties directly recognizing the practice, and instructs naval officers that, "Convoys of neutral merchant vessels, under escort of vessels of war of their own State, are exempt from the right of search, upon proper assurances, based on thorough examination, from the commander of the convoy."[465]

In the war of 1894,--

"Japan ordered naval officers to give credence to the declaration of a
convoying officer. The idea was simply that, as generosity was the
chief object of Japan, she did not wish to search and make actual
inspection in order to verify the character of escorted merchantmen
and goods, trusting to the honor of neutral officers. This was the
main idea of the Japanese in adopting the Continental principle
regarding convoy; but she was not, in actual cases, so lax as to admit
exorbitant claims of the right of convoy, such as an English admiral
made for all British ships in the China Sea."[466]

The present tendencies seem to indicate an inclination to admit the right of convoy within reasonable limits and under reasonable regulations.[467]

§ 136. Blockade

Blockade is the obstruction of communication with a place in the possession of one of the belligerents by the armed forces of the other belligerent. The form which blockade takes in most cases is that of obstruction of communication by water.

(_a_) =Historical.= In 1584 Holland declared the ports of Flanders blockaded. Holland did not, however, maintain this declaration by ships of war; indeed, in the early days there were no such ships as would make the maintenance of a blockade possible. Such paper blockades were common in the following centuries, and all the ports of a state were frequently proclaimed blockaded, even though there might be no force in the neighborhood to insure that the blockade would not be violated. Treaties of the eighteenth century show an inclination in the states to lessen the evils of blockade by proclamation. The growth of neutral trade led to the adoption of rules for its greater protection. The armed neutrality of 1780 asserted in its proclaimed principles that a valid blockade should involve such a disposition of the vessels of the belligerent proclaiming the blockade as to make the attempt to enter manifestly dangerous.[468] The armed neutrality of 1800 asserted that a notice from the commander of the blockading vessels must be given to the approaching neutral vessel. During the Napoleonic wars there was a return to the practice of issuing proclamations with the view to limiting neutral commerce. The English Orders in Council of 1806 and 1807, and the Berlin Decree of 1806, and the Milan Decree of 1807, by which Napoleon attempted to meet the English Orders, were the expression of the extremest belligerent claims in regard to the obstruction of neutral commerce. The treaties of 1815 said nothing in regard to blockade. The practice and theory varied till, by the Declaration of Paris in 1856, a fixed basis was announced in the provision that "Blockades, in order to be binding, must be effective."[469]

(_b_) =Conditions of Existence.= A blockade presupposes,--

1. A state of war.

2. Declaration by the proper authority.

3. Notification of neutral states and their subjects.

4. Effective maintenance.

(_c_) =Blockade a War Measure.= The so-called pacific blockade differs in its purpose and method to such an extent as to cause many to deny it any standing in international law. Only a belligerent can institute a blockade which other states are bound to respect, as, without war, there are no neutrals. The blockade may continue even until the conclusion of peace. The agreement to a truce or an armistice does not put an end to the blockade.

(_d_) =Declaration.= Blockade can be declared only by the proper authority.

As war is a state act, only the person or authority designated by the constitution or law of the state can declare a blockade. Such a declaration must, in general, come from the chief of the state. In certain cases a blockade declared by an officer in command of forces remote from the central government is held to be valid from the time of its proclamation, if the act of the commander receives subsequent ratification from the central authority.

(_e_) =Notification.= Neutrals must be notified of the existence of a blockade. This notification may be:--

1. By official proclamation announcing the place to be blockaded,
and the time when the proclamation becomes effective.

2. By notification to vessels when they come near the place
blockaded.

3. The use of both the above methods.

The theory of the American and English authorities has been to assume a knowledge of the blockade on the part of subjects if the political authority of their state had been informed of the existence of the blockade before the neutral vessel left port. In practice both powers have in recent years given a neutral vessel warning of the existence of blockade of a port before seizure.[470]

The French rule is to give in every instance an approaching neutral vessel warning of the existence of a blockade, and to consider the notification to the neutral state authorities as merely a diplomatic courtesy.

Sometimes local notification is made to port and consular authorities of the place blockaded.

In recent years the time allowed a vessel to discharge, reload, and to leave port has been specified.

In case of special notification by the officer in command of a blockading ship, the fact with particulars should be entered in the log of the neutral vessel over the officer's signature.

(_f_) =A Blockade must be Effective.= This principle applies both to the place and to the manner of enforcement.

1. It must apply to a place which may be blockaded, _i.e._ to
seaports, rivers, gulfs, bays, roadsteads, etc. A river which forms
the boundary between one of the belligerent states and a neutral state
may not be blockaded. Rivers flowing for a part of their course
through belligerent territory but discharging through neutral
territory may not be blockaded. Certain waters are not liable to
blockade because exempt by agreement; as in the case of the Congo
River by the Act of 1885.

2. "Blockades, in order to be binding, must be effective, that is to
say, maintained by a force sufficient really to prevent access to the
coast of the enemy."[471] This is interpreted in the United States
Naval Code as a "force sufficient to render hazardous the ingress to
or egress from a port."[472] The subject of the degree of
effectiveness which is necessary has been much discussed, and can only
be determined by the circumstances in a given case.[473] The English
interpretation in the main agrees with that of the United States. The
Continental states are inclined to give a more literal interpretation
to the rule.

(_g_) =Cessation.= A blockade comes to an end:--

1. By the cessation of any attempt to render it effective.

2. By the repulse by force of the vessels attempting to maintain the
blockade.

3. For a given neutral vessel when there is no evidence of a
blockade, after due care to respect its existence. This may happen
when the blockading force is absent in pursuit of an offending vessel,
or for similar reason.

In this last case the Continental authorities hold that the neutral is free to enter without question, as it is the duty of the belligerent to render the blockade at all times evident and effective. The English and American authorities generally consider such a case merely an interruption, and hold that it does not require that the blockade be proclaimed again. There is a general agreement that in the other cases it must be formally instituted again as it was in the beginning.

§ 137. Violation of Blockade

"A breach of blockade is not an offense against the laws of the country of the neutral owner or master. The only penalty for engaging in such trade is the liability to capture and condemnation by the belligerent."[474] The American and English practice is to regard as the breach of blockade the act of passing into or out of a blockaded place, unless by special privilege, or a manifestation of an intent to thus pass. The French courts impose a penalty only upon those who actually attempt to run the blockade. The American practice would make the vessel liable to penalty from the time of its departure from neutral jurisdiction with intent to enter the blockaded port until its return, unless the blockade is raised meantime.

Under proper regulations, certain vessels are usually allowed to pass a blockade without penalty:--

1. Neutral vessels in actual distress.

2. Neutral vessels of war.

3. Neutral vessels in the port at the time of the establishment of the blockade, provided they depart within a reasonable time. In the War of 1898, the United States allowed thirty days after the establishment of the blockade to neutral vessels to load and to depart.

The penalty for the violation of blockade is forfeiture of vessel and cargo, although when vessel and cargo belong to different owners, and the owner of the cargo is an innocent shipper, it has been held that the cargo may be released. This may happen if a vessel deviates from her original destination to a blockaded port. Even though a vessel pass a blockade, she is liable to capture while at sea before the termination of the voyage, provided the blockade continues.[475] The crews of neutral vessels violating a blockade are not prisoners of war, but may be held as witnesses before a prize court.

§ 138. Continuous Voyages

The Rule of War of 1756 declared that during war neutrals were not permitted to engage with the colonies of a belligerent in a trade which was not permitted to foreigners in time of peace.[476] Ordinarily in the time of peace, trade between the mother country and the colony was restricted to domestic ships. This rule was adopted in order that a neutral might not, by undertaking trade denied him in time of peace, relieve one of the belligerents of a part of the burdens of war which the interruption of domestic commerce by the other belligerent had imposed. Trade with neutral ports was allowed in time of peace. Therefore, to avoid technical violation of the rule, neutral vessels sailing from a port within belligerent jurisdiction, touched at a port within neutral jurisdiction, and in some cases landed and reshipped their cargoes. Lord Stowell decided that it was a settled principle "that the mere touching at any port without importing the cargo into the common stock of the country will not alter the nature of the voyage, which continues the same in all respects, and must be considered as a voyage to the country to which the vessel is actually going for the purpose of delivering her cargo at the ultimate port."[477] In the case of the _William_ in 1806, Sir William Grant declared that "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 cannot alter their quality or their effect."[478] The English authorities held that the visit to a neutral port did not constitute the trip two voyages, but that the voyage was continuous and the property liable to confiscation, though Hall says the "cargo was confiscated only when captured on its voyage from the port of colorable importation to the enemy country."[479] British cruisers, however, seized three German vessels, the _Herzog_, the _Bundesrath_, and the _General_, during the South African War of 1899-1900, while on a voyage to the Portuguese port of Lorenço Marques, which was the natural port of entry for Pretoria, the capital of the South African Republic. Germany protested. The vessels were released and the English authorities promised that in the future they would refrain from searching vessels until the vessels had passed beyond Aden, or any other place at the same distance from Delagoa Bay.

The American doctrine of continuous voyages is a considerable extension of the English doctrine and has met with severe criticism. In the case of the _Bermuda_, captured during the Civil War of 1861-1864, it was held that:--

"Destination alone justifies seizure and condemnation of ship and
cargo in voyage to ports under blockade; and such destination
justifies equally seizure of contraband in voyage to ports not under
blockade; but in the last case the ship, and cargo, not contraband,
are free from seizure, except in cases of fraud or bad faith."[480]

In the case of the _Stephen Hart_, a British schooner, bound from London to Cuba with a cargo of war supplies, captured in 1862 off the coast of Florida, Judge Betts condemned both vessel and cargo. He maintained that:--

"The commerce is in the destination and intended use of the property
laden on board of the vessel, and not in the incidental, ancillary,
and temporary voyage of the vessel, which may be but one of many
carriers through which the property is to reach its true and original
destination.... If the guilty intention, that the contraband goods
should reach a port of the enemy, existed when such goods left their
English port, that guilty intention cannot be obliterated by the
innocent intention of stopping at a neutral port on the way.... This
court holds that, in all such cases, the transportation or voyage of
the contraband goods is to be considered as a unit, from the port of
lading to the port of delivery in the enemy's country; that if any
part of such voyage or transportation be unlawful, it is unlawful
throughout; and that the vessel and her cargo are subject to capture;
as well before arriving at the first neutral port at which she touches
after her departure from England, as on the voyage or transportation
by sea from such neutral port to the port of the enemy."[481]

This position of the United States, which has been so criticised, is liable to be abused to the disadvantage of neutral commerce. The absence of some such rule would open the door to acts which, though neutral in form, would be hostile in fact. The present tendency seems to be to allow the exercise of a certain amount of supervision over commerce of neutrals when it is destined to neutral ports having convenient communication with the enemy. This may extend to the seizure of neutral vessels bound for that port only in form, provided there is no doubt as to the true destination, but such seizure must be made with the greatest care not to violate the proper rights of neutrals. There is less reason for the general exercise of this supervision over vessels sailing to a neutral port which is separated from the belligerent territory by a considerable expanse of water, than for its exercise over vessels sailing to a port which is separated only by a narrow expanse of water. In cases where the neutral port is upon the same land area with the belligerent territory and has easy communication by rail or otherwise, so that it may become a natural port of entry for goods bound for one of the belligerents, the other belligerent may properly exercise a greater degree of authority in the supervision of commerce than would ordinarily be allowable. It was on this ground that England could justify her action in the seizure of vessels bound for Delagoa Bay during the war in South Africa, in 1899-1900; and similarly Italy justified her seizure of the Dutch vessel, _Doelwyk_, in August, 1896, during the Abyssinian war. This vessel was bound for a friendly port, but a port from which its cargo of war supplies would pass overland to the enemy without difficulty.

§ 139. Prize and Prize Courts

_Prize_ is the general term applied to captures made at sea. The ships and goods of an enemy liable to capture by the laws of war, and the ships and goods of a neutral when involved in acts forbidden by the laws of war, may be brought into port for adjudication and disposition. Enemy's goods, except contraband of war, are not liable to capture on neutral ships.[482] Certain ships engaged in charitable or scientific pursuits, and coast fishing vessels, are exempt from capture,[483] as are also certain specially exempted by treaty. In general other goods and vessels of the enemy are liable to capture. Contraband goods of a neutral, vessels attempting to violate blockade, vessels performing unneutral service, or goods or vessels otherwise involved in a way contrary to the laws of war are liable to capture.

A _prize court_ is the tribunal which determines the rights of the parties concerned in the capture and the disposition of the goods or vessel. All captures belong to the state in whose name they are made. An inchoate title to the prize is acquired by possession, but complete title is acquired only after condemnation by a properly constituted prize court.

A prize court may be established by the belligerent in its own state, in the territory where the belligerent has military jurisdiction or in the territory of an ally.[484] The establishment of a court in neutral jurisdiction is not permitted. When Genêt, the minister of France, tried, in 1793, to set up consular prize courts in the United States, Washington protested and Genêt was recalled. Takahashi says, "It is clear that if we admit the prevailing principle concerning the establishment of a prize court in a belligerent's own dominions or its ally's, or in occupied territory, we may infer that a court can be held on the deck of a man-of-war--a floating portion of a territorial sovereignty--lying in the above-mentioned waters, provided the processes of procedure are followed."[485] He maintains, however, that a court might not be established on the high seas, as proper procedure for the interested parties would not be possible.

The tribunals which have jurisdiction of prize cases differ in the different countries. In the United States, the District Courts possess the powers of a prize court, and an appeal lies to the Supreme Court.[486]

The methods of procedure of prize courts are similar in different countries. The practice in the United States is as follows:--

Dana calls the prize tribunal _an inquest by the state_, and regards it as the means by which the sovereign "desires and is required to inform himself, by recognized modes, of the lawfulness of the capture." The commanding officer of the capturing vessel, after securing the cargo and documents of the captured vessel, makes an inventory of the last named, seals them and sends them, together with the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and also any one on board supposed to have information, under charge of a prize master and a prize crew, into port to be placed in the custody of the court. The prize master delivers the documents and the inventory to prize commissioners, who are appointed by the court, and reports to the district attorney, who files a libel against the prize property and sees "that the proper preparatory evidence is taken by the prize commissioners, and that the prize commissioners also take the depositions _de bene esse_ of the prize crew, and of other transient persons cognizant of any facts bearing on condemnation or distribution."[487] The libel should "properly contain only a description of the prize, with dates, etc., for identification, and the fact that it was taken as prize of war by the cruiser, and brought to the court for adjudication, that is, of facts enough to show that it is a maritime cause of prize jurisdiction and not a case of municipal penalty or forfeiture."[488] Notice is then published that citizens or neutrals, but not enemies, interested in the prize property shall appear and enter their claims. As there are no allegations in the libel, the answer of the claimant is only a general denial under oath. The prize commissioners then examine the witnesses privately; and this evidence, which is kept in secret until complete, is called _in preparatorio_.[489] If the court is in doubt it will order "further proof," that is besides the ship, cargo, documents, and witnesses. The burden is on the claimant to prove title.[490] If the claimant's right is not sufficiently established, the property is condemned. The captors are, however, liable to damages if there is found no probable cause for the capture.[491]

It has been the general practice to distribute the proceeds, or a part of the proceeds, of a capture among the captors. This distribution is a matter of municipal law. In England the sum realized from the sale of the goods and vessel is distributed among the captors, though the crown reserves the right to decide what interest the captors shall have, if any.[492] By a royal decree of June 20, 1864, Prussia provided in detail what each of those participating in the capture should receive.[493] By the act of March 3, 1899, the United States provided that "all provisions of law authorizing the distribution among captors of the whole, or any portion, of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed."[494]

"If there are controlling reasons why vessels that are properly
captured may not be sent in for adjudication--such as unseaworthiness,
the existence of infectious disease, or the lack of a prize crew--they
may be appraised and sold, and if this cannot be done, they may be
destroyed. The imminent danger of recapture would justify destruction,
if there should be no doubt that the vessel was a proper prize. But in
all such cases all of the papers and other testimony should be sent to
the prize court, in order that a decree may be duly entered."[495]

APPENDICES

APPENDIX I

INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD

+General Orders+, } WAR DEPARTMENT,
No. 100. } +Adjutant General's Office+,
_Washington, April 24, 1863_.

The following "Instructions for the Government of Armies of the United
States in the Field," prepared by +Francis Lieber+, LL.D., and revised
by a Board of Officers, of which Major General +E. A. Hitchcock+ is
president, having been approved by the President of the United States,
he commands that they be published for the information of all
concerned.

+By Order of the Secretary of War+:

E. D. TOWNSEND,
_Assistant Adjutant General_.

INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD