페이지 이미지
PDF
ePub

1338. We bave already shown that the ship has her own nationality; she may be held in shares by many owners, some of one country, some of another, such ownerships being more or less allowed by municipal laws; she is however of one nation only, that under whose sanction, whose credentials and flag she sails. As a consequence, if she is of a hostile nation, she is liable to confiscation in the entirety, although one or more shares in her may belong to a neutral or to a subject of the captor's country, or although a neutral or a fellow-subject may hold a mortgage or lien upon her. All who take shares or interest in her embark in a common venture, and characterize their interests by the flag she is entitled to call her own.

1339. Such is the law of the English prize court with regard to the vessel which bears a hostile banner, in accordance with the law of nations. It has been carried to the questionable extent of condemning the ship of a neutral owner because it bore the flag and pass of the enemy, which she had obtained before the war, and the English prize court violated this principle with regard to a neutral vessel for the benefit of its favourite captors, by allowing them to prove that a share in her belonged to the enemy, and condemning that share. Primus. Industrie.

1340. The court was more indulgent to the ship of a British owner, which was colourably transferred to an enemy when icebound, to protect her from seizure, she having been seized as Russian on her return to this country; but with an intimation that, had she been taken sailing under the Russian flag, she could not have been restored. Ocean Bride.

1341. Ships of neutrals engaged in the military service of the enemy are regarded as hostile. Even a neutral ship carrying shipwrecked enemies to their port on freight was held to be a transport in the employ of the enemy, and condemned. Greta.

1342. The belligerent confiscates all goods belonging to his enemy found on board the captured enemy's vessel. As a general rule, the character of the goods depends upon that of the owner; if he is an enemy, they are enemy's goods ; if he is a neutral, the goods are neutral. As the title to such goods depends, according to the law of nations, upon the genuine documents which travel with them,—the manifest, invoices, bills of lading, and the like, a neutral or a fellowsubject of the captor cannot assert against cargo appearing by the documents to belong to the foe any lien, charge, mortgage, or other right of ownership. With this principle the law of the prize court accords, except that it erroneously suggests a probable exception in favour of a fellow-subject's lien or latent claim. Aina. Ida.

1343. Moreover, the owner cannot assert that the documents are fictitious, and establish his neutral title, though real; unless he can prove that the fiction was adopted for a purpose collateral to the protection of his property against the ships of the captor's state. A subject may be relieved from the effect of documents fabricated to protect him from capture by the foe. Whea. 414.

1344. The goods of a subject employed in traffic with the enemy are regarded as enemy's goods. Such as had been left by a subject in the enemy's country beyond the prescribed period of withdrawal, for trading purposes, have, on exportation and capture, been so treated..

1345. The prize court has held that the property of a mercantile firm in an enemy's country was enemy's property, although the principal partner was a neutral. (Whea. 408.) This decision cannot well be questioned; but it has also inconsistently held that the property of a mercantile firm in a neutral country was enemy's property, because one of the partners was domiciled in the enemy's country, and consequently an enemy.

1346. Prize courts have held that the produce of a neutral's land in the enemy's country was enemy's property, and that it could not lose that character until sold to some other privileged person (Phænix. Anna Catherina. Bentzons sugar.

Whea. 409-413), because, although it belonged to a neutral, it smelt of a hostile land.

1347. The belligerent is not entitled to confiscate the goods of a neutral found on board a captured hostile vessel. This, one of the fundamental principles of international law, based on dictates of reason, could not obtain general acqui. escence before the declaration of Paris.

1348. The belligerent is not entitled to confiscate the goods of the enemy found on board a neutral vessel. Free ships make free goods. This also has at length been established by the universal voice of nations, amid the lamentations of the British courts of prize. We shall have to treat the two preceding points more fully in considering neutral rights.

1349. Then, as the enemy's cargo on board a hostile vessel is liable to confiscation, and the neutral's is free when the ownership is ascertained, we have to inquire whether the owner is enemy or neutral.

1350. The cargo is not, like the ship, an individuality, in which all the interests are bound together. One portion may belong to one, and another portion to a different owner. Each portion is to be dealt with according to the hostile or amicable relation in which its owner stands.

1351. If the owner is domiciled in the hostile country, he is for this purpose regarded as an enemy; if he is domiciled in a neutral country, he is regarded as a friend or neutral. The inquiry into what constitutes and what effects a change of domicile is too extensive for this treatise. But we may observe that with respect to the domicile of the owner of cargo, the prize court diverges, in some respects improperly, and in some respects necessarily and justifiably, from the general law of domicile.

1352. Every one who continues to reside and carry on his trade in an enemy's country, although the consul of a neutral state, is regarded as an enemy. Aina. Abo. Emilia.

1353. ENEMY'S PRODUCE AND MANUFACTURES.—Tra.

ding with an enemy, and trading in the produce and manufactures of the enemy's country, are obviously distinguishable. Such produce may be purchased from a neutral, who had previously purchased it from the enemy; in this case the purchase is from the neutral owner, from a friend, and the place of origin of the property, the antecedent ownership, the price which the neutral paid, the market in which he bought it, the mode of conveyance to the port of shipment, its further or ultimate destination, are manifestly immaterial; for the neutral is entitled to purchase it in the port of one belligerent and convey it for sale to the port of the adversary, for both are equally his friends.

CHAPTER IX.

ALLIES.

1354. THERE are two kinds of alliance, defensive and offensive.

1355. A treaty of defensive alliance only binds the contractor to aid in resisting a war commenced against the party whom he has contracted to aid. By commenced, we mean caused,—not formally commenced, for the preparations of one country may render it necessary for the other to anticipate a meditated invasion. He is not bound to aid in a war created by the ally's own provocation, injustice, or aggression; but he cannot evade his contract on any shallow pretence; he is bound to regard his arly as in the right unless he is manifestly wrong.

1356. A treaty of offensive alliance is a contract engaging co-operation in war, either immediate, prospective, or conditional, against some particular Power or Powers. Such treaties are numerous, and in general define the terms, contingencies, and conditions.

1357. Treaties may be offensive and defensive, as offensive treaties necessarily to some extent are.

1358. These treaties sometimes stipulate for aid by good services; that failing, with stipulated marine or land forces ; that failing, with open declaration of war and assistance, with all the vigour they can employ.

1359. Strictly speaking, the relation of allies refers to the actual raging of war, as during general peace the various alliances existing between nations, however influential, are inoffensive to others.

1360. All the allies are enemies of the common enemy, and consequently the subjects of neither of the allies can carry on commerce with the common enemy without the sanction of the sovereign authority of all the nations engaged in the alliance.

1361. The offending vessel of any one of the allies is liable to capture by the cruiser of its own nation, or of any other of the allied nations, and to condemnation in the prize-courts of either of the allies. · 1362. All the allies on one side stand confronted with all the allies on the other. Each set of allies, to a certain extent, constitute one belligerent; and as such, any of the allies on the one side is entitled to treat and to capture the vessel and goods of any of the allies on the other, as if two nations only were engaged in the conflict.

1363. And their relations to neutral powers are similar. But both with regard to enemies confederated in the alliance and to neutrals, each of the allied nations may be bound by antecedent conventions, and special engagements in treaties, even affecting the conduct of war, as though each of the belligerent nations were warring only against that included in the treaty, or as if it were not associated with bellige. rents whose relation to the neutral is different. All those allied with a nation so bound must respect, so far as his conduct is concerned, the conditions of the treaty.

« 이전계속 »