CHAPTER XVI ASSISTANCE BY NEUTRALS TO BELLIGERENTS SECTION 1.-UNNEUTRAL SERVICE THE OROZEMBO. (High Court of Admiralty, 1807. 6 C. Rob. 430.) This was a case * * * of an American vessel that had been ostensibly chartered by a merchant at Lisbon, "to proceed in ballast to Macao, and there to take a cargo to America," but which had been afterwards, by his directions, fitted up for the reception of three military officers of distinction, and two persons in civil departments in the government of Batavia, who had come from Holland to take their passage to Batavia, under the appointment of the government of Holland. There were also on board a lady and some persons in the capacity of servants, making in the whole seventeen passengers. * * * SIR W. SCOTT.1 This is the case of an admitted American vessel; but the title to restitution is impugned, on the ground of its having been employed, at the time of the capture, in the service of the enemy, in transporting military persons first to Macao and ultimately to Batavia. That a vessel hired by the enemy, for the conveyance of military persons, is to be considered as a transport subject to condemnation, has been in a recent case held by this court, and on other occasions. What is the number of military persons that shall constitute such a case, it may be difficult to define. In the former case there were many, in the present there are much fewer in number; but I accede to what has been observed in argument, that number alone is an insignificant circumstance in the considerations on which the principle of law on this subject is built, since fewer persons, of high quality and character, may be of more importance than a much greater number of persons of lower condition. To send out one veteran general of France to take the command of the forces at Batavia, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater; and, therefore, it is what the belligerent has a stronger right to prevent and punish. In this instance the military persons are three, and there are, besides, two other persons, who were going to be employed in civil capacities in the government of Batavia. Whether the principle would apply to 1 Part of the statement of facts is omitted and only extracts from the opinion are given. SCOTT INT.LAW-55 them alone, I do not feel it necessary to determine. I am not aware of any case in which that question has been agitated; but it appears to me, on principle, to be but reasonable that, whenever it is of sufficient importance to that enemy that such persons should be sent out on the public service, at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with the hostile operations. It has been argued that the master was ignorant of the character of the service on which he was engaged, and that, in order to support the penalty, it would be necessary that there should be some proof of delinquency in him, or his owner. But, I conceive, that is not necessary. It will be sufficient if there is an injury arising to the belligerent from the employment in which the vessel is found. In the case of the Swedish vessel there was no mens rea in the owner, or in any other person acting under his authority. The master was an involuntary agent, acting under compulsion put upon him by the officers of the French government, and, so far as intention alone is considered, perfectly innocent. In the same manner, in cases of bona fide ignorance, there may be no actual delinquency, but if the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done, or at least repeated, by enforcing the penalty of confiscation. If imposition has been practiced, it operates as force; and if redress in the way of indemnification is to be sought against any person, it must be against those who have, by means either of compulsion or deceit, exposed the property to danger. If, therefore, it was the most innocent case on the part of the master, if there was nothing whatever to affect him with privity, the whole amount of this argument would be that he must seek his redress against the freighter; otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the knowledge and privity of the immediate offender. It has been argued throughout, as if the ignorance of the master alone would be sufficient to exempt the property of the owner from confiscation. But may there not be other persons, besides the master, whose knowledge and privity would carry with it the same consequences? Suppose the owner himself had knowledge of the engagement, would not that produce the mens rea, if such a thing is necessary? or if those who had been employed to act for the owner, had thought fit to engage the ship in a service of this nature, keeping the master in profound ignorance, would it not be just as effectual, if the mens rea is necessary, that it should reside in those persons, as in the owner? The observations which I shall have occasion to make on the remaining parts of this case will, perhaps, appear to justify such a supposition, either that the owner himself, or those who acted for him in Lisbon or in Holland, were connusant of the nature of the 2 The Carolina. 4 C. Rob. 256 (1802). SCOTT INT.LAW whole transaction. But I will first state distinctly, that the principle on which I determine this case is, that the carrying military persons to the colony of an enemy, who are there to take on them the exercise of their military functions, will lead to condemnation, and that the court is not to scan with minute arithmetic the number of persons that are so carried. If it has appeared to be of sufficient importance to the government of the enemy to send them, it must be enough to put the adverse government on the exercise of their right of prevention; and the ignorance of the master can afford no ground of exculpation in favour of the owner, who must seek his remedy in cases of deception, as well as of force, against those who have imposed upon him. * * * On every view which I take of the case, on the principle of law, or on the evidence of the facts, I have no hesitation in pronouncing that this vessel is liable to be considered as a transport, let out in the service of the government of Holland, and that it is. as such, subject to condemnation. THE ATALANTA. (High Court of Admiralty, 1808. 6 C. Rob. 440.) Sir W. SCOTT. This ship, or rather that of which the present vessel is the representative, sailed from Bremen, with a cargo of dry goods and provisions, part of which had been brought from Amsterdam on the 23d of July, 1805. She touched at the Cape of Good Hope, 3 See The Carolina, 4 C. Rob. 256 (1802), and The Friendship, 6 C. Rob. 420 (1807). In a note to the latter case, the learned reporter, Dr. Robinson, said: "The act of carrying the soldiers of the enemy has been in former wars assimilated to contraband, by public proclamation and instructions, and has been declared to render the ship liable to condemnation. The declaration of war, 25th March, 1744, concludes with the following clause: 'And we do hereby commánd our own subjects, and advertise all other persons of what nation soever, not to transport or carry any soldiers, arms, powder, ammunition, or other contraband goods, to any of their territories, lands, plantations, or countries of the said French king, declaring, that whatsoever ship or vessel shall be met withal transporting or carrying any soldiers, arms, powder, ammunition, or other contraband goods, to any of the territories, lands, plantations, or countries of the said French king, the same being taken shall be condemned as good and lawful prize.' The same declaration is also inserted in the second article of the instruction to cruisers of the same date; also in the second article of the instructions in the war with Spain, 20th Dec., 1718." In The Svithiod, L. R. [1920] App. Cas., 718 (1920), it appeared that a Swedish ship, on its voyage from Buenos Ayres to a Danish port, took on board at Pernambuco, in Brazil, a German stowaway, who was a qualified third officer of the German mercantile marine. This was done with the connivance of the captain of the Swedish steamer. The stowaway was discovered at Halifax, and although the captain had attempted to conceal the presence of the stowaway there was no evidence that he was carried at the expense of the German government, or that he intended to go to Germany. The Privy Council reversed the judgment of the lower court on the ground that no unneutral service was performed, and that therefore the Svithiod was improperly condemned. 4 The statement of facts and parts of the opinion are omitted. and from thence proceeded to Batavia, where the cargo was sold, and another cargo taken in for Tranquebar. From that place a returned cargo was again brought to Batavia, where the present cargo of coffee and sugar was purchased, with which the ship sailed, on her return to the river Jade, in December, 1806. It appears that the voyage was interrupted by a violent tempest or hurricane, which visited those seas at that time, and the vessel was driven, by distress, into the Isle of France, where she was sold, as not sea-worthy; and the present vessel was purchased, which sailed with the cargo that had been transshipped, on the 12th of May, 1807. The original master had died at Tranquebar, where the present master was appointed in his place by the two supercargoes, who were on board, and whose conduct will constitute the chief subject of observation in the present inquiry. * * * The The The vessel sailed from the Isle of France, in May, * capture was made on the 14th of July by The Argo. ship's papers were demanded in the usual manner; and again, afterwards, on the 5th September, there was a farther demand, on a supposition that the former had not been complied with. The mate and four men were put on board the Argo, who carried the vessel to St. Helena, where they met his Majesty's ship the 'Sir Edward Hughes, under the convoy of which ship they afterwards proceeded to England. * * In the course of the voyage, some apprehensions, * led to a request that Mr. Meinen, the other supercargo, might be removed on board the Sir Edward Hughes, and that his baggage might be examined for concealed papers, though it is not explained what had given rise. to a suspicion of this kind. On this search was found, in the possession of Mr. Meinen, in his trunk, a small tea-chest, at the bottom of which were discovered those papers, which are described, * in the letter from the secretary of state's office, "to contain despatches from the governor of the Isle of France to the different departments of government in Paris, stating the distress of the colony, and requesting assistance to preserve the settlement from ruin." * * On these grounds, * * * I feel myself bound to pronounce, that there were papers received on board, as public despatches, and knowingly by those who are the agents of the proprietors, * and that the fact of a fraudulent concealment and suppression is most satisfactorily demonstrated. The question then is, what are the legal consequences attaching on such a criminal act? for that it is criminal and most noxious is scarcely denied. What might be the consequences of a simple transmission. of dispatches, I am not called upon by the necessities of the present. case to decide, because I have already pronounced this to be a fraudulent case. That the simple carrying of dispatches between the colonies and the mother country of the enemy, is a service highly injurious to the other belligerent, is most obvious. In the present state of the world, in the hostilities of European powers, it is an object of great impor tance to preserve the connection between the mother country and her colonies; and to interrupt that connection, on the part of the other belligerent, is one of the most energetic operations of war. The importance of keeping up that connection, for the concentration of troops, and for various military purposes, is manifest; and I may add, for the supply of civil assistance, also, and support, because the infliction of civil distress, for the purpose of compelling a surrender, forms no inconsiderable part of the operations of war. It is not to be argued, therefore, that the importance of these dispatches might relate only to the civil wants of the colony, and that it is necessary to show a military tendency; because the object of compelling a surrender being a measure of war, whatever is conducive to that event must also be considered in the contemplation of law, as an object of hostility, although not produced by operations strictly military. How is this intercourse with the mother country kept up, in the time of peace? by ships of war or by packets in the service of the state. If a war intervenes and the other belligerent prevails to interrupt that communication, any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does, in fact, place himself in the service of the enemy-state, and is justly to be considered in that character. Nor let it be supposed that it is an act of light and casual importance. The consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be conveyed. The carrying of two or three cargoes of stores is necessarily an assistance of a limited nature; but in the transmission of dispatches may be conveyed the entire plan of a campaign, that may defeat all the projects of the other belligerent in that quarter of the world. It is true, as it has been said, that one ball might take off a Charles XII, and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that in the contemplation of human events it is a sort of evanescent quantity of which no account is taken; and the practice has been accordingly, that it is in considerable quantities only that the offence of contraband is contemplated. The case of dispatches is very different; it is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences in the operations of the enemy. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature. It has accordingly been so held in decided cases, that fully recognize the principle; for on this principle The Constitution,5 Tate, was condemned.. * * * In all these cases the principle was uniformly asserted, although the circumstances, under which the fact appeared, did not lead the court to consider it with that particularity which the nature of the present case requires. Unless, therefore, it can be said, that there must be Lords, 14th July, 1802. |