« 이전계속 »
third case, where not only the ship is in no fault, but she is not by any act of her own, voluntary or involuntary, open to any fair ground of suspicion. In such a case, a belligerent may seize at his peril and take the chance of something appearing on investigation to justify the capture ; but if he fails in such a case, it seems very fit that he should pay the costs and damages which he has occasioned.” These views were sustained by reference to the opinions of foreign as well as English jurists, and to decisions in the French, the American, and the English prize courts,—to, among others, the opinions and judgments of Lord Stowell. It was further declared that violence and vexation were not necessary to entitle the ship illegally captured to damages, and that the mistake occasioned by the act of their government could not relieve the captors. These doctrines, very lenient to captors, and regarding them as ministers of the law rather than as enforcing their own special rights in the institution of the search and detention, had abundance of declaration, but not an exuberance of practice, to support them.
1785. On the previous hearing of the case of the Ostsee before the venerable judge of the prize court, he said, “ During the seventeen years that Lord Stowell presided in this court, and administered the law of nations with regard to war, I believe that out of the many ships and cargoes brought before him, he condemned the captors in costs and damages in only about ten or a dozen cases,—not one in & thousand. As far as I recollect, there are only three cases of restitution with costs and damages. I am well aware that when a seizure has been made without ostensible cause or reason, justice requires that the persons making the seizure should make good to the party the loss that may have been occasioned by the capture. At the same time, I am of opinion that this is the extremity of the law of nations, which ought not to be adopted except in cases which imperatively call upon the court so to do.” And on this ground be refused to give costs and damages to the ship
owner against the captain of the Alban for breaking the blockade of Cronstadt several days before the blockade had been imposed. Ostsee.
1786. The same learned judge in the case of the Leucade, which came before him after the reversal of his decision in the Ostsee, thus again expressed himself, and he is surely a competent witness :-" The next class of precedents areseizure without probable cause. This class must be subdivided. First, cases where it appears that the captors were guilty of misconduct or vexation. They are to be found upon the records and in our books. I believe there were some fourteen to eighteen cases. Secondly, cases of a totally different kind-cases when, upon the production of the depositions and ship’s papers alone, no probable cause was disclosed. I believe that all the precedents which have been produced are cases which fall under the first of these divisions. I have dedicated a considerable portion of all the time I could spare to search on this question. All the cases which have been cited in the Ostsee were cases of this description, --for I have examined them; all cases of improper conduct on behalf of the captors. I say, then, that I verily believe that not one case will be found wbere Lord Stowell condemned the captors in cost and damages upon the production of the ship’s papers and depositions, upon the ground that they did not disclose a probable cause of capture. I will state the ground of this belief. There were hundreds of cases,
—not scores, but hundreds,-in which costs and damages must have been decreed had such been the rule. There is not a single one in which they were decreed, though restitution had been constantly passing every day, and sometimes many in a day. There are cases where captors' expenses had been refused, on the ground that the seizure was not justifiable; but costs and damages were not given."
1787. In a previous case said the same learned judge:“ It is the bounden duty of persons acting under the command of Her Majesty,-namely, officers in the Navy, to seize
, as far as pose of the Diligenture of a parti
all vessels whatever to which a hostile character might reasonably be attributed; and when they fairly discharge that duty, the courts have been astute in discovering reasons to release them, as far as possible, from liability.” (Elise.) Lord Stowell had, in the case of the Diligentia, said :-“ If the Admiralty issued an order for the capture of a particular ship, that will not affect the interest of the captor in the prize which he may make. The order of the Admiralty will justify the seizure, so far at least as to indemnify the captor from costs and damages.” Which declaration Dr. Lushington thus expounds :—.“ Very different is the case where the government gives a lawful order, and the captor, from circumstances, has difficulty in applying it. In the case of an absolute order to seize a particular ship, Lord Stowell expressed his opinion that the captor would be indemnified; that is the case of the Diligentia. That is the expression used by Lord Stowell. Perhaps it may be somewhat ambiguous, but looking at the context, I think that in that case it meant he would not be liable to condemnation in costs and damages in a prize court;”—and in the case of the Leucade, he exempted the captors from costs and damages for the capture of an innocent vessel belonging to a protected neutral state.
1788. “The officer on shore,” says an eminent prize court advocate, “is not compelled by wind and weather, or any vis major, or any overwhelming necessity, to act according to his unaided discretion upon the spur of the moment, but it is often the bounden duty of the commissioned captor 80 to act; and it is therefore with reason and justice that prize courts usually award costs, damages, and expenses to the captor when they decree restitution of the vessel which he has seized ; ” and again,“ the reason of the thing therefore prescribes, that in case of capture on the high sea, if the captain has acted honestly, a less amount of probable cause -to use a phrase now stereotyped in the prize court-of suspicion shall avail, not only to protect him from the payment of damage to the vessel seized, but to insure him the payment of costs from her.” 3 Phil. 536.
1789. This account given by the learned judge of its practice, and by the learned advocate of its principles, will not fascinate neutral nations, or strongly impress the reader with the impartiality of the prize court. We fear that it may be deemed more consonant with the ancient Scandian (379) than with the modern Scandinavian law. We venture to think that neutral nations will not be satisfied with its “reason and justice,” or easily convinced of "the reason of the thing,"—that they will not approve the stereotyped phrase of the prize law.
1790. Let the government which issues the illegal com. mand indemnify both the neutral and its own agent; let the government indemnify the injury inflicted by the mistake of its officer. Nations will deem that more accordant with reason, and more in conformity with the principles on which the derided municipal tribunals administer justice. They do not deem the accused guilty until he is convicted; they call upon the accuser to prove the offence, before they require the accused to vindicate his innocence. Were these principles better observed, there would be no question of neutral convoy, there would be no place for armed neutralities, no outcry from merchants ruined by the usurpations of war. · 1791. Their precedents have inflicted on the people of France and England, during the present war, a wide-spread misery, from which, had their governments and prize courts conformed to the law of reason and nations, they would have been exempt. Their conversion of blockades into prohibitions of commerce seemed to sanction a practice which they were ashamed to contravene. They may be content to atone for their transgressions by submitting to the reprisals inflicted by the insulted law. The children in the second and third generation may be content to pay the penalty of their forefathers' offences. Their precedents may be cited against them with apparent force; but nations are not such unities as to be bound to submit to retaliation for every atrocity which their ancestors have perpetrated in semi-barbarous times. Their conduct is to be regulated by the reality of the law. Whether such submission redounds to their honour may not be always clear. It undoubtedly manifests their moderation; it may induce the insults which moderation not unfrequently provokes. They may flatter themselves that such submission will ratify their practice, as precedents for future times ; but neither tho repetition of their offences by others, nor an ignominious complicity of their own, will consecrate a wicked institution or constitute a law.
1792. Has a kingdom been subdued ? Has a province been irrecoverably conquered ? Has an insurgent colony been reduced to obedience, or has it achieved its independence ? Has a federation resolved itself into its elements, or have they recombined in several leagues ? Has unity ceased to be a reality, or has that, which was formerly one, been irreparably severed ? Do the belligerents confront each other like nations ? Do they stand in the attitude and wield the power of independent states ? Are they respectively alike, offensive and defensive, engaged alike in resistance and in attack? Or is it a doubtful struggle in a province which has hardly a hope beyond protracted resistance ? These are questions of fact, the nations are concerned in the decision.
1793. Rebellion has grown into insurrection. The insurgents have become a belligerent. The nations were compelled to admit it. The belligerent has become a nation.