§ 439s. The facts relating to The Florida are not very dissimilar. She was The Florida. built at Liverpool as a ship of war under the name of The Oreto, and she left Liverpool unarmed. The authorities thought she was built for the Italian government, and she cleared for Palermo and Jamaica in ballast. Representations as to her real destination were made to the government by the American consul at Liverpool, and by Mr. Adams, but as these were unaccompanied by what was deemed sufficient evidence for her seizure, she was allowed to go free. Even her crew were not aware of her real destination, and on her arrival at Nassau, most of them insisted on being discharged. After considerable discussion, she was seized at the Bahamas, and proceedings were taken in the Vice-Admiralty Court for her condemnation. She was, however, discharged, the judge being of opinion that, although she had been fitted out in British territory, yet, as she had shipped no munitions of war in the colony, and as there was no evidence that she had been transferred to a belligerent, he could not condemn her. In this he was mistaken. Fitted out, equipped, or armed, within British dominions, in contravention of the statute, a vessel becomes at once forfeited by the effect of the statute, and becomes liable to be condemned by proceedings in rem, taken before any competent court within whose jurisdiction she may be (t). The Florida (or Oreto) ought therefore to have been condemned at the Bahamas. On being released, she proceeded to Green Cay, a desert island sixty miles south of Nassau. In the meantime, her armaments had been made at Liverpool, but they were conveyed by train to Hartlepool, whence they were shipped, and at the time it was unknown in England that these armaments were intended for The Florida. It was thought they were simply contraband of war; however, they were shipped on board The Prince Alfred at Hartlepool, and transferred to The Florida at Green Cay. At Nassau she had enlisted some men for her crew, but not having a full complement, she went to Cardenas, in Cuba, and endeavoured to enlist others there. This was prevented by the authorities, and she then sailed for the port of Mobile, which she contrived to enter by eluding the blockading cruisers. She remained at Mobile, upwards of four months, and then issued as a Confederate ship of war; she was afterwards admitted into several British ports, and treated as a belligerent cruiser. With regard to this vessel, the tribunal, by a majority of four to one, decided that England had failed in her duties in not preventing the ship leaving Liverpool, in allowing her to enlist men at Nassau, and to be armed at Green Cay, and in afterwards receiving her in British ports (u). $ 439t. These two vessels, The Alabama and The Florida, were the only two Summary of vessels of war built in Great Britain for, and actually employed in, in England. ships fitted out the service of the Confederates during the whole civil war. Four others were intended to be built and equipped, but were arrested (t) [Parl. Papers, N. America, 1873 (No. 2), p. 140.] (u) [Parl. Papers, N. America, 1873 (No. 2), p. 3.] $ 439u. Indirect claims of the United States. $439v. Royal Com mission of 1868 on neu while in the course of construction. Four merchant vessels, though not adapted for warlike purposes, were converted into vessels of war by having guns put on board, but out of the jurisdiction of the British government-two of them in Confederate ports-and this by reason of the impossibility of getting ships of war built owing to the active vigilance of the authorities (v). It is impossible, from want of space, to go into the details relating to the other ships; it was only as regards these two, The Alabama and The Florida, and their tenders, and partially as regards The Shenandoah, that the tribunal condemned England to pay the United States a sum of $15,500,000 in gold, as indemnity for the ravages committed on American commerce. Numerous other claims were put in by the United States, such as damages for the cost of pursuing the Southern cruisers, for the prospective earnings of the ships destroyed, and for the double loss incurred by the owners of the ships and also by their insurers, but these were rejected by the tribunal. What are known as the indirect claims were dismissed by the arbitrators at the outset of the proceedings. They were for; (1) The enhanced rates of insurance in the United States, occasioned by the cruisers in question. (2) The transfer of the maritime commerce of the United States to England. This was a very sore point, but on no possible ground could England have been called upon to pay damages under such a head. (3) The prolongation of the civil war (w). In 1868, a Royal Commission was appointed to inquire into the working of the Foreign Enlistment Act of 1819. This commission trality laws. suggested several alterations in the law. They added in their report, "In making the foregoing recommendations, we have not felt ourselves bound to consider whether we were exceeding what could actually be required by international law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality, will derive increased efficiency, and will, so far as we can see, have been brought into full conformity with your Majesty's international obligations" (x). In accordance with this report, a new Foreign Enlistment Act was passed in 1870 (y). $439w. Foreign Very material changes were thus introduced, and the hands of the executive greatly strengthened. It is now an offence to build or cause to be built, or to equip or despatch, or to cause or allow to be despatched, any ship, with intent or knowledge, or having reasonable cause to believe that the same will be employed in the service of any foreign State at war with any friendly State (z). Thus, all question as to intent is now done away with. If the Secretary of State, or the (t) [Parl. Papers, N. America, 1873 (No. 2), p. 106.] (w) [Argument of the United States. Parl. Papers, N. America (No. 12), 1872, p. 165.] (x) [Report of Neutrality Laws Commission, 1868, p. 7.] (y) [33 & 34 Vict. c. 90. See Appendix C., p. 737.] (*) [Section 8.] chief executive authority in any place, is satisfied that there is reasonable and probable cause for believing a ship in Her Majesty's dominions is being built or equipped contrary to the Act, and is about to be taken beyond such dominions, they may seize and search the ship, and detain it until condemned or released by a court of law. The owner may apply to the Court of Admiralty for its release, but it is then incumbent on him to prove that the Act has not been contravened—a reversal of ordinary procedure which assumes a man innocent until he has been proved guilty (a). These are certainly great changes, but whether they are as great improvements is not so certain. The Act goes far beyond what international law requires. It creates a new crime-that of building-and makes British subjects liable to penalties for acts which are lawful by the law of nations, and by all other municipal laws. It places the shipbuilding trade of this country at a disadvantage, as compared with that of the rest of the world (b). § 439x. Cases under the Act The Gauntlet. tional. The Act has been put in force several times since it was passed. During the Franco-German war, a French vessel of war captured a Prussian ship in the English Channel, and manned her with a prize crew. The prize was driven into the Downs by stress of weather, and while there, the French consul at Dover engaged a steam-tug to tow the prize to Dunkirk Roads. The tug did so, and on her return was proceeded against for a violation of the Act. The Privy Council (reversing the decision of the Admiralty Court) held, that towing the prize into French waters was despatching a ship within the meaning of section 8, and accordingly condemned the tug to the Crown (c). In The Internaanother case during the same war, an English company contracted with the French government to lay down some telegraph lines on the French coast. They were to complete the communication between Dunkirk and Verdun. The company shipped the wires on to a specially constructed vessel, but when she was about to start the Secretary of State seized her. The ship was, however, released by the Admiralty Court, it being proved that the undertaking was of a purely commercial character, and that though France might partially use the lines for military purposes, this would not divest the transaction of its primary commercial character (d). It is an offence The Salvador. against the Act to supply a vessel to insurgents. Thus, a British vessel employed as a transport or store-ship in the service of the Cuban insurgents, who, though not recognized as belligerents, had formed themselves into a body of people acting together, and undertaking and conducting hostilities, was condemned by the Privy Council, under the Act of 1819 (e). (a) [Section 23.] (b) [Report of Neutrality Laws Comm. pp. 9 and 10.] (c) [The Gauntlet, L. R. 4 P. C. 184.] W. (d) [The International, L. R. 3 A. & E. 321.] (e) [The Salvador, L. R. 3 P. C. 218. And see Burton v. Pinkerton, L. R. 2 Ex. 340.] Q Q The Justitia. § 439y. Enforcing municipal law when in ex cess of international law. In 1886, one Sandoval was indicted under the 8th and 11th sections of the Act. It appeared that Sandoval was a foreigner, but that while residing in England, he purchased at Sheffield two Krupp guns, and at Birmingham a quantity of ammunition, and that he then caused the guns and ammunition to be shipped on board a trading ship for Antwerp, where they arrived, and where at the same time arrived The Justitia, which had been purchased also in England by another person in the name of that other's valet. The Justitia was then loaded at Antwerp with the guns and ammunition. She took on board a number of generals and Sandoval, who asserted himself to be the commander, and sailed with "machinery for mines," and papers for Trinidad. Not being permitted to enter port at Trinidad, she sailed towards Grenada, and then the valet executed a transfer of the ship to one of the generals, whereupon the British flag was hauled down, and the Venezuelan flag hoisted, the guns were mounted, the boats swung out-board, and boats full of armed men taken in tow. The Justitia-re-named The Liberata-proceeded along the Venezuelan coast, had an engagement with a Venezuelan war-vessel, fired at some forts and a custom-house, and finally went to St. Domingo, where she was seized by the authorities. The object appeared to be to assist certain persons who were engaged in a rebellion against the Venezuelan Government. The indictment under section 8 was clearly not sustainable; but the jury found that Sandoval, when he purchased the arms and ammunition in England, knew and expressly intended that they should form part of a naval expedition which was being prepared to proceed against a foreign friendly State, and that the purpose intended at the time of the respective purchases was to assist in a hostile expedition against a foreign friendly State. Upon these findings, a verdict of guilty was directed against Sandoval, and judgment accordingly. An application for a new trial failed, and the prisoner was afterwards sentenced to fine and imprisonment (ƒ). There can be no doubt that the Act of 1870 is in excess of what international law requires as the duty of a neutral. Thus, the (f) [Reg. v. Sandoval, 56 L. T. 526; 16 Cox, C. C. 206; 3 T. L. R. 411, 436, pendently of the municipal law of the neutral. They would exist exactly the same, though the neutral State had no municipal law to enable it to enforce the duties of neutrality on its subjects. It would obviously afford no answer on the part of a neutral government to a complaint of a belligerent of an infraction of neutrality that its municipal law was insufficient to enable it to insure the observance of neutrality by its subjects; the reason being that international law, not the municipal law of the particular country, gives the only measure of international rights and obligations. While, therefore, on the one hand, the municipal law, if not co-extensive with the international law, will afford no excuse to the neutral, so neither on the other, if in excess of what international obligations exact, will it afford any right to the belligerent which international law would fail to give him" (g). Both belligerents must of course be treated equally in this respect. Partiality towards one will give the other a ground of complaint. § 439z. Sale of ships of war by neutrals to The question arises, has there been any change effected in the general principles of international law respecting the duties of neutrals? England and America by agreeing to act in future on the belligerents. three rules of the Treaty of Washington, have added to their duties as neutrals. But owing to a difference of opinion between these two countries as to the interpretation of these rules, foreign States have not been invited to accede to them (h). Therefore, as regards other States, the general principles of international law remain the same. A neutral government is bound not to assist a belligerent in any way. On the other hand, the subjects of the neutral are entitled to continue their ordinary trade, and when that trade consists in exporting arms, or ships of war, there arises a conflict between the rights of a belligerent and the rights of neutral subjects. A government may not in any case sell munitions of war to a belligerent, but its subjects may, provided they sell indifferently to both parties in the war, and provided the transaction is a purely commercial one, and not done with the intent of assisting in the war, animo adjuvadi, but simply for purposes of gain. The right which war gives to a belligerent is that of seizing such goods as contraband, when on their way from the neutral State to his adversary. This is undoubtedly an encroachment on the neutral's right of trade in favour of belligerents, but it is firmly settled, and could hardly be avoided in the nature of things. Now ships intended for war, whether armed or not, are clearly contraband, and the difficulty of distinguishing between the bond fide sale of a ship of war, and the organizing of a hostile expedition in her territory, has induced England to prohibit altogether the sale of such ships by her subjects to belligerents. But this is not prohibited by international law when done bond fide. "There is nothing in our laws," said Mr. (9) [Reasons for dissenting from Geneva Award. Parl. Papers, N. America, 1873 (No. 2), p. 29.] (h) [Papers presented to Parliament, 17th July, 1874 (No. 1012). Hansard, vol. ccxviii. p. 1839.] |