CO885-(15-16) — Page 190

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PUBLIC

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Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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No. 136A (GENERAL.)

[Commerce Protection in War.-Arming of Merchant Vessels.] CASE FOR THE OPINION OF THE LAW OFFICERS.

(Confidential.)

The following is an extract, referred to as marked "B," from a Memorandum by Captain H. S. H. Prince Louis of Battenburg, with reference to a scheme for the pro- tection of commerce in war; and to the extent to which reliance could be placed upon the ability of merchant vessels to assist in their own defence: --

"On the much debated question whether merchant vessels should be allowed to be armed in self defence an authoritative ruling should be obtained." In reply to a request from the Senior Naval Lord for information as to the exist ing international understanding as regards the above paragraph, Admiral Custance, the Director of Naval Intelligence, wrote as follows:-

"Belligerent merchant ships undoubtedly possess the right of self defence against attack by an enemy, but they have not the right to attack; if they defend themselves and are captured they become prisoners of war.

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'As merchant ships possess the right of defence it would seem that they

have the right to carry guns and arms for their defence.

FL

The celebrated case of Commodore Dance and the Squadron of East Indiamen is a case in point. If there is any doubt about the point it would be desirable to have the views of the Law Officers on the subject, and the decision of the Cabinet.'

The Senior Naval Lord minuted as follows upon the point:--

EL

The point referred to at (b) of Prince Louis' remarks is important, and

one which up to the present does not seem to be clearly defined. The matter

is important, and it is very desirable to have an understanding on the subject

if it can be arrived at. I anticipate some difficulty but propose to refer to the Law Officers for a ruling, and subsequently to the Cabinet."

The subject of the right of a non-commissioned vessel to resist capture is referred to in Wheaton's International Law, 3rd edition, at page 487, where the following pas- sage occurs:—

"The effect of a state of war lawfully declared to exist is to place all the

The subjects of each belligerent Power in a state of mutual hostility.

of usage nations has modified this maxim by legalising such acts of hostility only as are committed by those who are authorised by the express or implied command of the State. Such are the regularly commissioned Naval and Military forces of the Nation, and all others called out in its defence or spontaneously defending themselves in case of urgent necessity without any express authority for that purpose."

Hall writes as follows on the subject at page 550 of the 4th edition :-

"Non-commissioned vessels have a right to resist when summoned to sur- render to public ships or privateers of the enemy. The crews, therefore, which make such resistance have belligerent privileges; and it is a natural consc- quence of the legitimateness of their acts that if they succeed in capturing their assailant the capture is a good one for the purpose of changing the ownership of the property taken and of making the enemy prisoners of war."

"By some writers it is asserted that a non-commissioned ship has also a right to attack. - If there was ever anything said for this view, and the weight of practice and of legal authority was always against it, there can be no question that it is too much opposed to the whole bent of modern ideas to be open to argument."

Wheaton, page 487, also refers to the right to attack. as follows:-

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'It must probably be considered as a remnant of the barbarous practices of those ages when maritime war and piracy were synonymous, that captures made by private armed vessels, without a commission, not merely in self defence, but even by attacking the enemy, are considered lawful, not, indeed, for the purpose of vesting the enemy's property thus seized in the captors, but to pre- vent their conduct being regarded as piratical either by their own Government or by the other belligerent State."

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