Purchase and Sale of tions the liberty of carrying on trade in a particular article of merchandise within its Territory, if the motive of such denial should be to impede the military operations of one of the belligerent Powers, and to favour the other, it is manifest that such conduct would be a breach of Neutrality3. § 227. That there is nothing in the Law of Nations Ships by which requires a Neutral Power to prohibit its Subthe Subjects from selling armed vessels to a Belligerent, was jects of Neutral very carefully laid down by Mr. Justice Story, in delivering the judgment of the Supreme Court of the United States on the subject of the equipment of an armed vessel called the Independencia del Sud, which had been fitted out by some merchants of the United States in the port of Baltimore, and sent to Buenos Ayres for sale, where she was purchased by the de facto Government of Buenos Ayres, at that time engaged in war with Spain. The question came before the Supreme Court on appeal from the Circuit Court for the district of Virginia, in which the owners of certain cargo captured by the Independencia del Sud and the Altravida claimed that their property, which had been brought infra præsidia of the United States, should be restored to them, on the ground that the equipment and sale of the Independencia del Sud was a breach of the Neutrality of the United States. "It is apparent," said Mr. Justice Story," that although equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, Contraband indeed, but in no shape violating our Laws or our National Neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as good prize for being 3 Opinions of Attorneys General of the United States, Tom. I. p. 61. engaged in a traffic punishable by the Law of Nations. But there is nothing in our Laws, or in the Law of Nations, which forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no Nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of Contraband. Supposing therefore the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona fide sale, there is no pretence to say that the original outfit on the voyage was illegal, or that a capture made by the vessel after the sale was, for that cause alone, illegal'. The above judgment proceeds upon the assumption that by the Law of Nations an armed ship, although it be the private property of a Neutral merchant, may be captured by a Belligerent cruiser on the High Seas as Contraband of War, if it be destined to an enemy's port for sale; but that if it has arrived in an enemy's port, a Neutral merchant may lawfully sell it, just as he may lawfully sell a cargo of arms and munitions of war, which he has safely transported over the High Seas to an enemy's market. In accordance with this view we find numerous treaties, in which it is stipulated that ships of war which are being carried to an enemy, shall be liable to capture and confiscation. Thus in Art. XI5 of the treaty of friendship between Charles II of England and Charles XI of Sweden (anno 1661), it is provided that no merchandise called Contraband, and especially no money, nor provisions, nor arms, 4 The Santissima Trinidad and the St. Ander, 7 Wheaton's Reports, p. 283. 5 This Treaty was renewed by Art. XI of the Treaty of Orebro, 1812. Hertslet's Treaties, Tom. I. p. 328. nor cannon, &c.; "as also no ships of war or convoys be supplied or carried to the enemy, without peril, in case they be taken, of being adjudged lawful prize, without hope of restitution." So likewise in the treaty between Denmark and Great Britain, signed at Copenhagen on 11 July 16706, it is provided that the contracting Parties shall not aid or furnish the enemies of either Party, that shall be aggressors, with any provisions of war, as soldiers, arms, engines, guns, ships, or other necessaries for the use of war, nor suffer any to be furnished by their Subjects; but if the Subjects of either Prince shall presume to act contrary hereunto, then that King, whose Subjects shall have so done, shall be obliged to proceed against them with all severity, as against seditious persons and breakers of the league." Numerous other treaties might be cited in which ships are classed in the same category with money, troops, ammunition, arms, and provisions, as articles which are not to be sent to the enemy. Amongst these may be more particularly noticed a treaty concluded between Charles I of England and the United Provinces (17 Sept. 1625), in which Ships are enumerated amongst those articles of merchandise which are Contraband of War. "Toutes merchandises de contrebande, comme sont munitions de bouche et de guerre, Navires, armes, voiles, cordages, or, argent, cuivre, fer, plomb, et semblables, de quelque part qu'on les voudra porter en Espagne et aux autres Pays de l'obeissance du dit Roi d'Espagne et de ses adherens, seront de bonne prise avec les Navires et Hommes qu'ils porteront 7." It is competent for a Neutral Power to allow the 6 This Treaty was renewed by Art. XIII of the Treaty of Kiel, 1814. Hertslet's Treaties, Tom. II. p. 187. 7 Dumont, Traités, Tom. V. Part II. p. 480. Subjects of a Belligerent Power to sell ships which are within its ports, even when such ships have been captured from the enemy, provided that the rightful possession of the captors has been affirmed by the sentence of a competent Prize Tribunal. A Neutral Power does nothing incompatible with a state of Neutrality in permitting a Belligerent to transfer his rights of property over a ship within its territory to a Neutral merchant. But when a vessel, which has been sold by a Belligerent in a Neutral port, ventures out of the jurisdiction of the Neutral Power, she ceases to be under its protection and becomes amenable to the Rights of War; and it is the practice of some of the European Powers to refuse to recognise, if they happen to be Belligerents, the sale of any ship by the Enemy to a Neutral merchant after war has commenced, on the ground of such a sale being a fraud of a Belligerent's Rights against the property of the Enemy. The practice of the French tribunals under the Prize regulations of 23 July 17048 and 26 July 17789 is to refuse to recognise as Neutral Property any vessel of Enemybuild, or which has ever been Enemy-owned, unless the sale of it to a Neutral merchant has taken place before the commencement of hostilities. The British Prize Courts on the other hand recognise such a sale as a valid transaction of commerce, if it be bona fide and the Enemy's interest has been entirely divested. Lord Stowell held this doctrine repeatedly, and Dr. Lushington, during the war between the Allied Powers and Russia in 1854, observed, in reference to a vessel which had been purchased from a Russian ship-owner by a merchant of Hanover, "that if the bona fides of the sale be assumed, it is not to be denied that it PART II. 8 Lebeau, Code des Prises, Tom. I. p. 287. Hh Sale of Ships of Neutral Power. is competent to Neutrals to purchase the property of Enemies to another country, whether consisting of ships or anything else; they have a perfect right to do so, and no Belligerent Right can override it 10" The United States of America" have in a similar manner maintained the Right of any citizen of the United States to purchase a foreign ship of a Belligerent Power, and this anywhere, at home or abroad, in a Belligerent port or a Neutral port, or even upon the High Seas, provided the purchase is bona fide, and the property be passed absolutely and without reserve. § 228. It has never been a subject of complaint on War by a the part of a Belligerent against a Neutral Power that the latter has permitted an Enemy of the former to effect the sale of a vessel in the course of trade within its ports. But it may reasonably be a subject of complaint on the part of a Belligerent Power against a Neutral Power, if the latter should itself purchase from an Enemy an armed ship which had taken refuge in its ports, or if the latter should itself sell to an Enemy-Power, or to its agents, any vessels of war lying within its waters. The distinction between such a transaction on the part of a Neutral Power, and a similar transaction on the part of a Subject of such Power in the ordinary course of commerce, is obvious. Trade is not the normal occupation of a Sovereign Power in the sense in which it is the business of a merchant; and although, whilst general peace prevails, a State may put on the character of the Merchant without injury thereby resulting to any other State, and may freely sell or buy articles of immediate use in war, it is difficult for it 10 The Johanna Emilia, I Spinks's Eccl. and Adm. Reports, p. 321. 1 Letter of Attorney General Cushing of Aug. 7, 1854, to Mr. |