intended that it should be transshipped at Nassau; that the voyage from London to the blockaded port was, as to cargo, both in law and in the intent of the parties, one voyage; and that "the liability to condemnation, if captured during any part of that voyage, attached to the cargo from the time of sailing." THE CASE OF "THE PETERHOFF ” The Supreme Court in December, 1866, handed down an opinion in the case of The Peterhoff. This was the case of a British merchant vessel captured near the Island of St. Thomas in 1863, while on a voyage from London to Matamoras, Mexico. The Court considered that there was in this case no question of violation of the blockade and mentioned that in the case of The Bermuda it was considered that an ulterior destination to a blockaded port would infect the primary voyage to a neutral port with liability for intended violation of blockade. The question in this case was whether the same consequence would "attend an ulterior destination to a belligerent country by inland conveyance." The Court then considered the question of destination of the cargo in connection with the subject of contraband. In this regard it was stated that there were three classes of articles, of which "the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes." A considerable portion of the cargo of the Peterhoff was of the third class, and did not need to be further referred to. A large portion, perhaps, was of the second class, but was not proved to have been actually destined for belligerent use, and could not therefore be treated as contraband. Another portion was of the first class, or, if of the second, destined directly for the rebel military service. This portion of the cargo consisted of artillery harness, "men's army bluchers," "artillery boots," and government regulation gray blankets." These goods came fairly under the description of goods primarily and ordinarily used for military purposes in time of war. Even these goods, if really intended for sale in the market of Matamoras, would be free of liability, but the Court was not convinced that such was their real destination, while all the circumstances indicated that these articles, at least, were destined for the use of rebel forces. 66 Contraband merchandise was subject to a different rule in respect to ulterior destination than that which applied to merchandise not 'Document 138, p. 466. contraband. The latter was liable to capture only when a violation of blockade was intended; "the former when destined to the hostile country, or to the actual military or naval use of the enemy, whether blockaded or not." Neutral trade with belligerents in articles not contraband was absolutely free unless interrupted by blockade; the conveyance by neutrals to belligerents of contraband articles was always unlawful, and such articles could always be seized during transit by sea. Hence, while articles not contraband might be sent to Matamoras and beyond to the rebel region, where the communications were not interrupted by blockade, articles of a contraband character, destined in fact to a State in rebellion or for the use of the rebel military forces, were liable to capture though primarily destined to Matamoras. The Court concluded that the portion of the cargo characterized as contraband should be condemned and that the part of the cargo belonging to the same owner must share its fate. 42179-34-8 66 CHAPTER XII DISCUSSIONS OF IMMUNITY, 1867-1871 NEGOTIATIONS WITH ITALY Secretary Seward, in a note of November 21, 1867, to the Italian Minister in Washington, commented on a draft of a commercial treaty which the latter had presented in September.1 Article 12 of the draft included a statement that in fulfillment of the principles of maritime law established by the Declaration of Paris which were accepted without reservation " by the parties in their mutual relations, the two powers agreed that in case of war between them, the private property of the citizens of one should be respected by the other on the same footing as neutral property both on land and upon the ocean, without any other limitations than "the case of forced blockade and contraband of War, which are excepted." Seward stated that it was preferred there should be no reference to the Congress of Paris because several of the rules adopted by it had long been both adopted and acted upon by the American Government. In 1785 the abolition of privateering and the exemption of private property from capture during war had been stipulated for in the treaty between the United States and Prussia. Consequently he proposed to substitute an article providing that in case of war between the parties "the private property of their respective citizens and subjects with the exception of contraband, shall be exempt from capture and seizure on the high seas or elsewhere, by the armed vessels or by the military forces of either Party; it being understood, however, that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either Party." Seward's draft of this article was eventually incorporated in the treaty with Italy discussed below. The Italian Government on November 10, 1867, had invited the American Government to renew Marcy's proposition of 1856 for amending the first article of the Declaration of Paris, in the belief that the time had come for establishing by universal law the immunity of private property on the sea in time of war. Seward replied on December 11 that when the United States offered to 1Document 139, p. 477. 1 accede without reservation to the Declaration of Paris, some powers refused accession except upon condition that they should be at liberty to recognize "the United States rebels as a maritime power equal under the Treaty of Paris to the United States themselves, although those rebels were destitute of a single ship of war." The "remembrance of this great wrong" still lingered and weakened the disposition of the United States to confide in treaty stipulations as a security for their national commerce. Under these circumstances the American Government considered that a convenient time had not yet come for renewing the debate upon the questions which arose upon the conclusion of the Treaty of Paris. NEGOTIATIONS WITH GERMANY A few months after agreeing that the principle of immunity should be included in the treaty with Italy, Seward informed Minister Bancroft at Berlin that because of the existing relations with one of the European powers, any proposition to a foreign state for the inviolability of private persons and property on the high seas could not be expected to find favor with the Senate or with the country. However, he stated that the principle which Franklin proposed was widely cherished and that there existed an earnest desire to give it vitality. It was "not to be understood that the President thinks that the time has not arrived, but only that the immediate condition is unfavorable." 2 The North German Government in 1870 announced that private property on the ocean would be exempt from seizure during the war with France. Secretary Fish considered that this action gave reason to hope that the principle of immunity might soon be universally recognized as another restraining and humanizing influence imposed by modern civilization upon the art of war. In expressing this opinion to the North German Minister, the Secretary stated that the Government of the United States received with great pleasure the renewed adherence of his Government to the principle temporarily established by the treaty of 1785, "and since then advocated by this government whenever opportunity has offered."3 Shortly thereafter Secretary Fish informed Minister Bancroft that in the pending treaty with the North German Union he was authorized to obtain "the recognition of the principle of the exemption of private property of citizens or subjects of either of the two parties from capture on the high seas by either privateers or public vessels of the other." 4 Document 140, p. 478. 2 Document 141, p. 479. 3 Document 142, p. 480. TREATY OF 1871 WITH ITALY A commercial treaty between the United States and Italy was signed February 26, 1871.1 This treaty contained the article which Seward had drafted in 1867, providing that, in case of war between the parties, the private property, not contraband, of their nationals should be exempt from seizure, but that this exemption should not extend to vessels and their cargoes attempting to enter a blockaded port. Other stipulations in the treaty relating to commerce in war were to operate when one of the parties was belligerent and the other neutral. Article 13 provided that a state of war between one of the parties and a third power should not, except in the cases of blockade and contraband of war, affect the neutral commerce of the other. It also contained the following definition of a blockaded port: "such places only shall be considered blockaded as shall be actually invested by naval forces capable of preventing the entry of neutrals, and so stationed as to create an evident danger on their part to attempt it." Article 14 provided that when a vessel sailed for an enemy port without knowing it was blockaded, it should not be detained nor should any part of its cargo, if not contraband, be confiscated unless after a warning from an officer of a blockading vessel it should again attempt to enter. In article 15 there was included a list of contraband of war strictly limited to arms and war supplies, and in the following article provision was made for freedom of neutral trade between enemy ports. Article 16 also provided that free ships should make free goods but that this provision should be understood as applying to those powers only which recognized the principle. Document 144, p. 482. |