Part 57 (1/2)

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-s.h.i.+p 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 establis.h.i.+ng 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 s.h.i.+p 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 s.h.i.+p 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 s.h.i.+pped 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 s.h.i.+p taken on a voyage from Bremen to Roch.e.l.le, laden with tar. The s.h.i.+p was claimed by one Schraeder and others.

Schraeder, who was owner of the cargo, withheld his claim, knowing it would affect the s.h.i.+p. 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