Part 9 (1/2)

Under certain circ.u.mstances the _Captor_ is considered ent.i.tled to Freight, even though the goods are carried to his own country, and restored.

If the captor does anything to injure the property, or is guilty of misconduct, he may remain answerable for the effect of such misconduct or injury, in the way of set-off against him.[155]

No right of _visitation_ and search, of capture, nor any other kind of belligerent right, can be exercised on board a _public neutral_ vessel on the high seas. But _private_ vessels form no part of neutral territory, and when within the limits of another state, are not exempt from local jurisdiction.[156]

The right to take enemy's property on board a neutral s.h.i.+p has been much contested by particular nations, whose interests it strongly opposed. This rule has been steadily maintained in Great Britain, though in France and other countries it has been fluctuating. For the first time, England has voluntarily abandoned this right in the present war.

If a neutral vessel, having enemy's goods on board, is taken, and there is nothing unfair in the conduct of the neutral master, he will even be ent.i.tled to his reasonable demurrage. The captor pays the whole freight, because he represents the enemy, by possessing himself of the enemy's goods by right of war; and although the whole freight has not been earned by the completion of the voyage, yet as the captor, by his act of seizure, has prevented its completion, his seizure operates to the same effect as an actual delivery of the goods to the consignee, and subjects him to the payment of the full freight.[157] In such case, however, the neutral master must have acted _bona fide_, and with strictly neutral conduct.

[Sidenote: This Rule Changed by Convention.]

This Rule is often Changed by Convention; and it is generally stipulated that ”_free s.h.i.+ps shall make free goods_.” The converse, though also sometimes the subject of treaty, does not of necessity hold, _enemy's s.h.i.+ps do not make enemy's goods_. Goods of neutrals, found on enemy's s.h.i.+ps, are bound to be restored.[158]

A neutral subject is at liberty to put his goods on board a merchant vessel, though belonging to a belligerent, subject nevertheless to the rights of the enemy who may capture the vessel; who has no right, according to modern practice, to condemn the neutral property. Neither will the goods of the neutral be subject to condemnation, although a rescue should be attempted by the crew of the captured vessel, for that is an event which the merchant could not have foreseen.[159]

[Sidenote: Neutral Goods on _Armed_ Hostile Vessels.]

In America, Neutral Goods laden on an _Armed_[160] Belligerent Vessel are still protected, but in England it is different. ”If the neutral,”

says Sir Wm. Scott,

”puts his goods on board a s.h.i.+p of force, which will be defended by force, he betrays an intention to resist visitation and search, and so far adheres to the belligerent, and withdraws himself from his protection of neutrality.”[161]

[Sidenote: The Sale and Purchase of Vessels by Neutrals.]

The Purchase of s.h.i.+ps from the enemy, is a liberty that has not been denied to neutral merchants, though by the regulation of France, it is entirely forbidden. The rule that this country has been content to apply is, that property so transferred, must be _bona fide_ and absolutely transferred; there must be a sale divesting the enemy of all further interest in it; and that any thing tending to continue his interest, vitiates a contract of this description altogether.[162]

Russia is reported to have several vessels of war in different parts of the world; some of these vessels have been sold, and others are said to be in the process of sale. I shall cite what Sir Wm. Scott says, on a case nearly similar.

”There have been many cases of enemy _merchant vessels_ driven into ports out of which they could not escape, and there sold, in which after much discussion, and some hesitation of opinion, the validity of the purchase has been sustained. But whether the purchase of a vessel, _built for war_, and employed as such, and rendered incapable of acting as a s.h.i.+p of war, by the arms of the other belligerent, and driven into a neutral port for shelter; whether the purchase of such a s.h.i.+p can be allowed, which shall enable the enemy so far to rescue himself from the disadvantage into which he has fallen, as to have the value restored to him by a neutral purchaser, is a question on which I shall wait for the authority of a superior court, before I admit the validity of such a transfer.”[163]

It has been said that the sale must be absolute and unconditional; so that a sale under a condition to re-convey at the end of the war, is invalid.[164] Similarly, where the seller is bound by his own government under a penalty not to sell, except upon a condition of rest.i.tution at the end of the war, and the purchaser undertook to exonerate the seller, the sale was held invalid.[165]

SECTION II.

_Contraband of War_.

[Sidenote: Contraband of War.]

The general freedom of neutral commerce is subject to certain restrictions with respect to neutral commerce. Among these is the trade with the enemy in certain articles, called _Contraband of War_.

These are generally warlike stores, and articles which are directly auxiliary to warlike purposes. Writers on this subject have made distinctions between those things useful only for the purposes of war, those which are not so, and those which are susceptible of indiscriminate use in war and peace.

All seem to agree in excluding the first cla.s.s from neutral trade; and, in general, admitting the second. The chief difference is about the third cla.s.s. The last kind of articles--for example, money, provisions, s.h.i.+ps, and naval stores, according to Grotius, are sometimes lawful articles of neutral trade, and sometimes not; and the question depends upon circ.u.mstances. This is perhaps the truest ground of decision, as we shall see in subsequent ill.u.s.trations.[166]

Thus, these articles become contraband, _ipso facto_, if carried to a besieged town, camp, or port. So in a _naval_ war, s.h.i.+ps and materials for s.h.i.+ps, are contraband, although timber and cordage may be used for other purposes, besides fitting out s.h.i.+ps of war; and so horses and saddles are not of necessity warlike stores, except when comparing the quality, manufacture, or quant.i.ty attempted to be imported into the hostile state, with the circ.u.mstances and condition of the war, it appears (if not to be impossible) to be in the highest degree unlikely, that they should be designed for any other purposes besides the purposes of war.[167]

[Sidenote: Provisions, when Contraband.]