PUBLIC RECORD
OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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no less than to regular soldiers. But he says nothing about the confiscation of the vessel as a penalty for carrying such persons, and only admits that the enemy military persons may themselves be taken prisoners.
Hall (Treatise on International Law;" 4th edition, 1895, pp. 701, 702) is the writer who, perhaps, speaks most strongly of all in favour of the right of the belli- gerent, maintaining that " in the transport of persons in the service of a belligerent, the essence of the offence consists in the intent to help him; if, therefore, this intent can in any way be proved, it is not only immaterial whether the service rendered is important or slight, but it is not even necessary that it shall have an immediate local relation to warlike operations. It is possible for a neutral carrier to become affected by responsi bility for a transport effected to a neutral port, and it may perhaps be enough to estab- lish liability that the persons so conveyed shall be in civn employment."
Subsequently, however (p. 708), in the same chapter ("Analogues of Contra- band") the following passage occurs in connection with the case of the mail-steamier "Trent":
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"It is to be regretted that Lord Russell did not address himself to the refutation of the doctrine that persons can be contraband of war. For the reasons mentioned above, however, there need be no hesitation in rejecting it. In the words of Mr. Ber- nard, it is incorrect to speak of the conveyance of persons in the military or civil em- ployment of a belligerent as if it were the same thing as the conveyance of contraband of war, or as if the same rules were applicable to it. It is a different thing, and the rules applicable to it are different.' If a vessel is so hired by a belligerent that he has entire control over it to the extent of his special needs, the ship itself is confiscable as having acquired an enemy character, and the persons on board become prisoners of If, on the other hand, belligerent persons, whatever their quality, go on board a neutral vessel as simple passengers to the place whither she is in any case bound, the ship remains neutral, and covers the persons on board with the protection of her neutral character."
war.
The following questions appear to arise from a study of the foregoing extracts: --- 1. Are persons in the civil employment of the enemy included among those the carriage of whom renders a neutral vessel liable to seizure?
No doubt, in the case of the “ Orozembo “ (6, Chr. Robinson's Reports, p. 430), which was decided in 1807, Sir W. Scott inclined to the opinion that the same penalties attached to the carriage of civil servants of the belligerent State.
Dana, however, observes, with reference to this judgment: "But it is plain, he confines this dictum to the case before him: that is, the case of a vessel let out to a belligerent Government to carry whatever persons it may designate. Even as a dictum it does not touch the case of a neutral vessel not let out as a transport and merely having civil officers of a belligerent Government on board, without other circumstances tending to show the vessel herself to be in the enemy's service."
It is to be noted, in support of this view, that in most of the Treaties concluded on this subject the words are "military persons in actual service," or persons "actuelle- ment au service des dits ennemis et se transportant pour être employés comme mili- taires dans leurs flottes ou dans leurs armées."
Moreover, even Hall goes no further in the passage just quoted than to observe tha" it may, perhaps, be enough to establish liability that the persons so employed shall be in civil employment."
2. Does the number of persons, military or otherwise, carried on board the vessel, make any difference in the guilt of the carrying vessel !
The general opinion would appear to be that it does not, the question being rather one of fact.
3. Does the fact that the vessel has been made to carry the persons in question, either by force or fraud, make any difference in her guilt?
English and American writers for the most part incline to the view that it does not, while foreigners lay stress on the necessity of the transport being of a voluntary
character.
It is to be observed, however, that as a line of steamers has agencies in every large town, unless military persons come in such numbers as to betray themselves, the master of a modern liner has no means of finding out the character and the intentions of his passengers.
4. May military persons in actual service be taken from neutral vessels without judicial proceedings being instituted against these vessels ?
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Dana (notes to edition of Wheaton, already quoted) observes that there are strong arguments in favour of such a course, but that it is out of harmony with the practice of modern times in cognate cases. The proper rule would seem to be that, if there is no probable cause for thinking the vessel in fault for carrying them, and as ho prize proceedings can be had against the persons, the persons should not be taken out of the vessel. But if the case warranted proceedings against the vessel on grounds of pro- bable cause to believe her in fault, she should be brought in for proceedings, and the persons held as prisoners of war, on the responsibility of the State to the neutral flag, until the case is determined.
"Still, it must be admitted that the subject is an embarrassing one, whether the right to take such persons be generally conceded, or be coupled with prize proceedings against the vessel, and seems to present a case for some special proceedings of a peculiar character, arranged by Convention on national guarantees."
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And Hautefeuille, in his pamphlet on "Questions of Maritime International Law," seems to admit that, by force of the old international law, modified by Treaties, & belligerent can take from a neutral vessel military persons
actually in the service of the enemy,' without making the vessel a prize, but no other persons.".
Such a course, indeed, presents considerable advantages on the ground of policy as contrasted with that of taking the vessel into a Prize Court, and seeking to have her condemned. No doubt many writers uphold the theory that, in the event of the captured vessel being proved guilty, her condemnation is a just consequence of guilt but this theory was enunciated at a time when the value and size of trading vessels could in nowise be compared to the value and size of the trading vessels of the present day, and the conliscation of one of the large ocean-going steamers now employed, in consequence of the presence on board of perhaps half-a-dozen enemy military persons, might seem a punishment out of all proportion to the offence committed, and might not be acquiesced in by the neutral Power to whom she belonged.
5. Is the situation of either the port of departure or the port of destination to be taken into consideration !
Hautefeuille also declares that in no case can mintary persons be contraband of war "if a neutral vessel is sailing between neutral ports."
Dana (notes to edition of Wheaton, already quoted), on other hand, lays
it down that" If the character of the service be admitted to be unneutral, it is of course immaterial how far the fieutral takes the troops on their way, and whether both or either of the termini of his trip are in belligerent territory."
6. To render a vessel liable to confiscation, or to justify the removal from on board
of persons carried by her, must such persons be in the actual military employ of the helligerent State, or will it suffice that they should be merely volunteers on their way to join his forces?
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Bluntschli, in a passage already quoted, maintains that a neutral is forbidden to carry volunteers no less than regular soldiers; but l'erels (“ Manuel de Droit Maritime International" French edition, 1884, pp. 286, 2×7) observes that "Il ne s'agit pas des individus qui se proposent seulement de s'engager dans la flotte ou dans l'armée ennemie, mais de gens qui en font réellement partie; done, des soldats ou des marins au sens propre du mot, recrues déjà enrôlées et hommes astreints au service militaire." 7. If a ship has been detained on other grounds than those of carrying enemy military persons for instance, on account of a suspected cargo which subsequently proves to be innocent-; may the fact of there being distinctly enemy military persons on board be taken into consideration in the assessment of compensation or otherwise?
I have to request you to take the above observations and questions into your consideration, and to favour Lord Salisbury with your opinion thereon, as well as with any general observations which you may have to offer on the subject under discussion. A collection of extracts from various writers on international law, which bear on the subject under discussion, is appended for convenience of reference.
Report.
I have, &c.,
FRANCIS BERTIE,
1. In our opinion, persons in the civil employment of the enemy are not included among those the character of whom renders a neutral vessel liable to seizure, unless they are in some way connected with the prosecution of the war. The test is whether