The phrases "due diligence" and "base of naval operations" gave rise to a difference of opinion, as also the last part of paragraph "First"
relative to preventing the departure of vessels intended to carry on war and adapted for warlike use.
The contentions and the decision relative to the last point were as follows:
1. +The British Contention+
This was that the only duty of Great Britain applied to the departure of the vessel originally, and that, if she escaped, and afterwards as a duly commissioned war-ship entered a British port, there was no obligation to detain her.[511] The case of the _Schooner Exchange_ v.
_M"Faddon_[512] was cited, in which a libel was filed in 1811 against that vessel, then in American waters, as an American vessel unlawfully in the custody of a Frenchman, the libellants contending that in December 1810, while pursuing her voyage she had been forcibly taken by a French vessel at sea. The Attorney General suggested that she was a public armed vessel of France, visiting our waters as a matter of necessity. Chief Justice Marshall decided that as a public vessel of war coming into our ports and demeaning herself in a friendly manner she was exempt from the jurisdiction of the country.
2. +The American Contention+
This was that if a Confederate cruiser, which had originally escaped, afterwards came into a British port, her commission was no protection, as it was given by a government whose belligerency only, not sovereignty, had been acknowledged.[513]
3. +The Award of the Tribunal+
This award exceeded the claim of the United States in deciding that "the effects of a violation of neutrality committed by means of the construction, equipment and armament of a vessel are not done away with by any commission which the Government of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step, by which the offense is completed, cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence," that "the privilege of extra-territoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principles of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality," and that "the absence of a previous notice can not be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with it its own condemnation."[514]
That the decision of the Tribunal has not become a precedent is quite generally conceded. Lawrence a.s.serts that the award seems "to have been dictated more by a regard for equitable considerations than by reference to principles. .h.i.therto accepted among nations;" that other nations have refused to accede to the "three rules" and "that it has been doubted whether they bind the two powers which originally contracted to observe them."[515]
It is to be observed, however, that at the present time a cruiser is of such peculiar construction and depends for her efficiency on such a large outlay of money that an honest neutral is likely to have abundant proof of her character and hence the best reasons for detaining her.
131. +Contraband+
_The Peterhoff_, 5 Wall. 28, 62
The _Peterhoff_, a British steamer, bound from London to Matamoras in Mexico, was seized in 1863 by a United States vessel. It was held that the mouth of the Rio Grande was not included in the blockade of the ports of the Confederate states; that neutral commerce with Matamoras, a neutral town on the Mexican side of the river, except in contraband destined to the enemy, was entirely free; and that trade between London and Matamoras, even with intent to supply, from Matamoras, goods to Texas, then an enemy of the United States, was not unlawful on the ground of such violation. Questions of contraband were also considered, and Chief Justice Chase concluded, "Considering ... the almost certain destination of the ship to a neutral port, with a cargo, for the most part, neutral in character and destination, we shall not extend the effect of this conduct of the captain to condemnation, but we shall decree payment of costs and expenses by the ship as a condition of rest.i.tution."
_The Commercen_, 1 Wheat. 382
In 1814, during the war between the United States and Great Britain, a Swedish vessel bound from Limerick, Ireland, to Bilboa, Spain, with cargo of barley and oats, the property of British subjects, was seized and brought into an American port. The cargo was shipped for the sole use of the British forces in Spain. The cargo was condemned.
132. +Penalty for Carrying Contraband+
_The Jonge Tobias_, 1 C. Rob. 329
This was a case of a ship taken on a voyage from Bremen to Roch.e.l.le, laden with tar. The ship was claimed by one Schraeder and others.
Schraeder, who was owner of the cargo, withheld his claim, knowing it would affect the ship. The cargo and his share of the vessel were condemned in 1799, and an attestation was required of the other part owners of the vessel that they had no knowledge of the contraband goods.
_The Magnus_, 1 C. Rob. 31
A ship laden with coffee and sugars was taken on a voyage from Havre to Genoa. The claimant of the cargo was a Swiss merchant. Held, that while interior countries are allowed to export and import through an enemy"s ports, strict proof of property is required. The cargo was condemned.
133. +Unneutral Service+
_The Kow-Shing Affair_, Takahashi, 24-51
On July 25, 1894, a j.a.panese war-ship stopped the _Kow-Shing_, a British transport engaged in carrying Chinese troops. After fruitless parleying, the _Kow-Shing_ refusing to surrender as her British captain was overawed by the Chinese he was carrying, the _Kow-Shing_ was sunk by the j.a.panese war ship. The affair produced great excitement in England, and there was a demand of satisfaction from j.a.pan on the ground that war had not been declared between that country and China. The facts appearing that a declaration of war is not necessary, and that the British captain of the transport was under compulsion, the affair was referred to Mr.
Choate, the American Amba.s.sador to Great Britain, as referee.
_The Friendship_, 6 C. Rob. 420, 429
This was the case of an American ship bound on a voyage from Baltimore to Bordeaux, with a light cargo and ninety French mariners as pa.s.sengers, shipped by direction of the French minister in America. In condemning the ship and cargo in 1807, Sir William Scott said, "It is the case of a vessel letting herself out in a distinct manner, under a contract with the enemy"s government, to convey a number of persons, described as being in the service of the enemy, with their military character traveling with them, and to restore them to their own country in that character."
_The Orozembo_, 6 C. Rob. 430
An American vessel, having been ostensibly chartered by a merchant at Lisbon "to proceed in ballast to Macao, and there to take a cargo to America," was afterwards, by his directions, fitted up for three military officers and two persons in civil departments in the government of Batavia, who had come from Holland to take their pa.s.sage to Batavia, under the appointment of the Government of Holland. The vessel was condemned in 1807 as a transport, let out in the service of the government of Holland.
_The Atalanta_, 6 C. Rob. 440
A Bremen ship and cargo were captured on a voyage from Batavia to Bremen, in July, 1807, having come last from the Isle of France, where a packet, containing dispatches from the government of the Isle of France to the Minister of Marine at Paris, was taken on board by the master and one of the supercargoes, and was afterwards found concealed in the possession of the second supercargo. Both ship and cargo were condemned.
137. +Violation of Blockade+
_The Juffrow Maria Schroeder_, 3 C. Rob. 147
"Where a ship has contracted the guilt by sailing with an intention of entering a blockaded port, or by sailing out, the offense is not purged away till the end of the voyage; till that period is completed, it is competent to any cruisers to seize and proceed against her for that offense." In this case the plea of remissness in the blockading force in permitting vessels to go in or out, was held to avail, and the ship, which was a Prussian one taken on a voyage from Rouen to Altona and proceeded against for a breach of the blockade of Havre, was restored.
138. +Continuous Voyages+
_The Hart_, 3 Wall. 559, 560
"Neutrals who place their vessels under belligerent control and engage them in belligerent trade; or permit them to be sent with contraband cargoes under cover of false destination to neutral ports, while the real destination is to belligerent ports, impress upon them the character of the belligerent in whose service they are employed, and cannot complain if they are seized and condemned as enemy property." See the preceding case, _The Bermuda_, 3 Wall. 514.
_The Maria_, 5 C. Rob. 365
This was a case of a continuous voyage in the colonial trade of the enemy. The Court reviewed former cases and asked for further proof on the facts. On such further proof the court decreed rest.i.tution. See _The William_, 5 C. Rob. 385.
139. +Prize and Prize Courts+