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Early rulings of Lord Stowell are to the same effect and the practice of sequestration was condemned by him on the ground that “It gives one belligerent the unfair advantage of a new station of war which does not properly belong to him, and it gives to the other the unfair disadvantage of an active enemy in a quarter where no enemy would naturally be found."
It is interesting to observe that the German Prize Code itself expressly adopts the rules of Articles 21 and 22, for it declares:
A prize may be brought into a neutral port only if the neutral Power permits the bringing in of prizes. A prize may be taken into a neutral port on account of unseaworthiness, stress of weather, or lack of fuel and supplies. In the latter case she must leave as soon as the cause justifying her entrance ceases to exist.
As long ago as 1866 the rule was admirably stated in Dana's note to Wheaton: “The modern practice of neutrals prohibits the use of their ports by the prize of a belligerent, except in case of necessity, and they may remain in the ports only for a meeting of the exigency."1
It is true that, as the delegates to The Hague say, certain abuses did arise and that in the eighteenth century may be found bases in which prizes were allowed to be sent into neutral ports for sequestration. This, however, could not be done without the consent, express or implied, of the neutrals, and aside from the treaties shortly to be mentioned, the United States never consented to such a practice.
In principle such asylum is evidently a violation of the fundamental obligations of neutrality. If applied to the present war, it would mean that German submarines operating on our coast might have brought into our ports several hundred belligerent vessels, and thus made our territory the basis from which to carry on their raiding expeditions. This is the view adopted by the great German commentator Bluntschli himself, for he says:
If, on the contrary, the victor brings his prize into a neutral port in order to make her more safe and so that he may fly the more quickly to new conquests, he would be using the neutral territory as a base of operations, which could not be tolerated. The neutral state should then, in order clearly to indicate its intention to remain neutral, refuse the
1 Wheaton's Int. Law, 8th Am. ed. sec. 391.
entry of its ports to all prizes taken by belligerents unless there is a question of ships in distress.?
Such was the attitude adopted by foreign nations toward the United States during the Civil War. As early as June, 1861, the British Foreign Office instructed the Admiralty that, pursuant to the desire of Her Majesty's Government to observe the strictest neutrality between the United States and the Confederate States, the armed ships and privateers of both parties are interdicted “from carrying prizes made by them into the ports, harbors, roadsteads or waters of the United Kingdom, or of any of Her Majesty's Colonies or possessions abroad.” These instructions were rigidly carried out, and similar rules announced by France, Belgium, The Netherlands, Spain, Portugal, and Hamburg and Bremen, then free states. That this was the law and the usual and proper practice of nations appears clearly from Mr. Seward's communication to the Peruvian Legation as to the course the United States would pursue during the war between Spain and Peru: “This government will observe the neutrality which is enjoined by its own municipal law and by the law of nations. No armed vessels of either party will be allowed to bring their prizes into the ports of the United States."
It is difficult to see how, at this late date, this practice, so consonant with common sense, supported by authority, consecrated by long practice and approved by the United States officials and its treatymaking power, should now be put in question.
The German Government during the course of the litigation laid much stress upon the incident of the Bergen Prizes. These were British vessels taken as prizes by Paul Jones and sent into Bergen, which Denmark seized and restored to their former owners on the ground that it had not acknowledged the independence of the United States and the prizes could not be considered as lawful. The prizes were sent into Bergen under stress of weather and for necessary repairs, which might have justified the claim of the United States, but in any event that claim was not acceded to, no arbitration was had, and so far as any precedent at all was created, it was against the right of sequestration.
We must remember that international law is continually in process of growth. Originally the concept of neutrality was of a very vague
2 International Law Codified, sec. 778 notes.
character and belligerents refused to recognize neutral rights. During our Revolutionary War these rights were still unsettled. It was the course of the United States subsequent to the Revolution and during the long wars ensuing from the French Revolution which did so much to place on a definite basis the rights and duties of neutrals. This was very clearly indicated throughout the painful controversy with France engendered by the acts of M. Genet in fitting out ships and establishing prize courts in American ports. The treaties with France of 1778 and 1800 contained a provision substantially similar to that contained in the Prussian treaty of 1799 and relied upon by the German Government as justifying the sending of the Appam into an American port. Article XXIV of the treaty with France of 1800 and Article XIX of the treaty with Prussia of 1799 are juxtaposed in parallel columns, where their similarity may easily be seen. Treaty With Prussia, 1799
Treaty With France, 1800 Article XIX
Article XXIV The vessels of war, public and When the ships of war of the private, of both parties, shall two contracting parties, or those carry freely, wheresoever they belonging to their citizens which please, the vessels and effects are armed in war, shall be admitted taken from their enemies, with- to enter with their prizes the out being obliged to pay any ports of either of the two parties, duties, charges or fees to officers the said public or private ships, of admiralty or of the customs, or as well as their prizes, shall not any others; nor shall such prizes be obliged to pay any duty either be arrested, searched, or put under to the officers of the place, the legal process, when they come to judges or any others; nor shall and enter the ports of the other such prizes when they come to party, but may freely be carried and enter the ports of either party, out ain at any time by their be arrested or seized, nor shall the captors to the places expressed in officers of the place make examinatheir commissions, which the com- tion concerning the lawfulness of manding officer of such vessel such prizes; but they may hoist
; shall be obliged to show. sail at any time and depart and conformably to the treaties existing carry their prizes to the places between the United States and expressed in their commissions, Great Britain no vessel, that shall which the commanders of such have made a prize upon British ships of war shall be obliged to subjects, shall have a right to
It is always understood shelter in the ports of the United that the stipulations of this article States, but if forced therein by shall not extend beyond the privitempests or any other danger, or leges of the most favored nation. accident of the sea, they shall be obliged to depart as possible.
Relying upon this treaty, Genet undertook to have French consuls establish prize courts in American harbors and to use such harbors for fitting out privateers to prey upon British commerce. Great Britain naturally protested and much diplomatic controversy ensued. Finally, Mr. Jefferson stated the views of this government, as follows:
The doctrine as to the admission of prizes maintained by the government from the commencement of the war between England, France, etc., to this day has been this: The treaties give a right to armed vessels with their prizes to go where they please (consequently into our ports) and that these prizes shall not be detained, seized or adjudicated, but that the armed vessel may depart as speedily as may be with her prize to the place of her commission; and we are not to suffer their enemies to sell in our ports the prizes taken by their privateers. Before the British treaty, no stipulation stood in the way of permitting France to sell her prizes here; and we did permit it, but expressly as a favor not as a right. . . . These stipulations admit the prizes to put into our ports in cases of necessity, or perhaps of convenience, but no right to remain if disagreeable to us; and absolutely not to be sold.
And Mr. Pickering, Secretary of State in 1796, held that the sale of prizes brought by armed ships of the French Republic into our ports was not a right to which the captors were entitled either by the law of nations or our Treaty of Amity and Commerce with France.
Thus, even at a time when the general rule was much less firmly established than at present and when every consideration dictated the most sympathetic treatment of France, prizes even when arriving with their captors were only allowed temporary stay in our ports. The possibilities which might have arisen from giving to the treaty a wider interpretation were vividly impressed upon the officials of Washington's administrations, and had it not been for the firm attitude adopted by them in preventing our ports from being used as a deposit for the spoils of war, we should have been dragged into war long before 1812.
The German Government claimed from the beginning of this litigation that the Appam had been sent into Newport News in reliance upon Article XIX of the Prussian treaty. It was quite evident that they intended to make of this a test case. Had they prevailed in their
contentions the United States ports, if the government remained neutral, would have been of the utmost convenience to them in the not improbable event of submarine operations along our coast. Such operations could have been much more effectively carried on here than in the waters surrounding the British Channel and would, in fact, not only have stopped shipping so effectively as to create a blockade here, but would have created for the German Government a fine fleet of merchant vessels for use after the war. It is, therefore, not to be wondered at that the German Foreign Office felt that it had discovered in Article XIX a war instrument of superlative value.
The question was raised in foro before the State Department by Count Bernstorff, late German Ambassador. He insisted that the Appam was under the treaty immune from the jurisdiction of our courts, and that she might remain sheltered in our ports indefinitely. The State Department gave very careful consideration to the question and held the treaty inapplicable. As it would be impossible to condense the very succinct reply of the Secretary of State, whose statement of the law was approved by the Supreme Court of the United States, I cite it as follows:
At the outset it may be pointed out that as the object of this provision was to mollify the existing practice of nations as to asylum of prizes brought into neutral ports by men-of-war it is subject to a strict interpretation when its privileges are invoked in a given case in modification of the established rule. By a reasonable interpretation of Article XIX, however, it seems clear that it is applicable only to prizes which are brought into American ports by vessels of war. The Appam, however, as your Excellency is aware, was not accompanied by a ship of war, but came into the port of Norfolk, alone in charge of a prize master and crew. Moreover, the treaty article allows to capturing vessels the privileges of carrying out their prizes again "to the places expressed in their commissions." The commissions referred to are manifestly those of the captor vessels which accompany prizes into port and not those of the officers of the prizes arriving in port without convoy, and it is clear that the port of refuge was not to be made a port of ultimate destination or indefinite asylum. In the case of the Appam, the commission of Lieutenant Berg, a copy of which was given to the collector of customs at Norfolk, not only is a commission of a prize master, but directs him to bring the Appam to the nearest American port and “there to lay her up.” In the opinion of the Government of the United States, therefore, the case of the Appam does not fall within the evident