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Sale of War Ships to Neutrals.
It is impossible to quarrel with the purchase by Turkey of war ships from Germany. She is at liberty to buy her navy where she likes provided the transaction is bonâ fide. The many cases in which purchases from an enemy in wartime have been disregarded are all cases of merchant ships, in which the vessel, after sale, was still carrying on the enemy's trade as before.
One can hardly accept the suggestion that the case of The Minerva is in any way applicable. There, the refugee man-of-war was taken up by the neutral sovereign (Count Bentinck of Oldenburg) to be used in trade, and probably, in the enemy trade in which formerly she had been employed. In such cases as that of the Goeben, it is not the case that the enemy is relieved from the consequences of his vessel's predicament. That predicament results in the neutral obtaining an expensive ship extremely cheap.
Little regret can be affected at the disappearance of the capitulations. True, they rested on treaty, and we should be the last to deny the binding obligation of treaty stipulations. But these particular engagements, entered into centuries ago as a matter of mutual convenience, have gathered round themselves such an accretion of customary encroachment, that they amount to the constitution of a very serious imperium in imperio. Their furthest extension took place in Morocco, where they patently sapped the independence of the kingdom. Natives were granted "protection" wholesale, and thus withdrawn from the national jurisdiction into that of the consul. Something of the same sort took place in Siam, and nearly made the country a French colony. Japan took the earliest opportunity of repudiation; and we
cannot wonder that Turkey has at last got rid of a constant source of irritation. The letter of the treaties. in no way supports the vast structure which custom has raised upon it. It gives little more than a right to the consul to attend proceedings. Difficulties of language, and the far niente disposition of Turkish officials, allowed the procedure to slip into trials before the consul alone. The whole practice was challenged and examined in the Joris Case, where a Belgian shot at the Sultan in Constantinople. It was apparent that wars and the influx of fresh nations had left matters pretty much as they had been. Privileges were granted to new comers and to late enemies by reference to existing ancient treaties. It may probably be quite possible to justify the Turkish action by insisting upon the letter of the treaties, and by ruthlessly clearing away the mass of customary practice which has gone so far beyond what was expressly stipulated. Incidentally, this would render it possible for Egypt also, in a large measure, to emancipate itself from the mixed tribunals, which rest entirely on the fiction that Egypt is incorporated with the Ottoman dominions.
The survivors of the Cap Trafalgar have been interned in Argentina. The survivors of the Aboukir have not been. interned in Holland. In the former case, they were brought in by a belligerent vessel. In the latter case, they were landed by neutral ships. Is this a fair ground of distinction?
Internment is a very modern thing, as applied to ships. In fact, it is a very modern thing altogether. It has for some fifty years past been recognized that an organized military force is out of place in neutral territory, and that a victorious enemy can hardly be expected to refrain from attacking it. It would probably have been sufficient to enact that such a force must be dispersed, and perhaps
disarmed. But at the Hague Conference of 1899, it was provided that it must be imprisoned by the neutral: otherwise it is argued, the enemy will certainly pursue it into the neutral country with a view to annihilating it. It is possible to criticise this view, as too favourable to the belligerent. It gives him, at the expense of the neutral-(we are not speaking of financial expense)—all the advantages of a crushingly successful pursuit. The fugitives are friends in the neutral country. They may well be dispersed, but it is going too far to shut them up, and charge their country with the cost of their keep.
However, that course was adopted. And in 1907, it was extended to the sea. A war ship, in the first place, taking refuge in a friendly port, and not leaving as soon as repairs are accomplished (subject to any special provision to the contrary in the local law), is to be "interned." This is a further advance upon the military provisions; for a war ship, unlike an army, is in a normal and usual position in friendly ports (vide Arts. 12, 13, 24 of No. 13 of 1907). But even in 1899 (Art. 10 of No. 3; Art. 15 of No. 10 of 1907) it had been provided that, "shipwrecked, wounded or invalid persons (evidently belligerent combatant persons are meant), who are landed at a neutral port by consent of the territorial authority, must be put under surveillance by the neutral state, so as not to be able to participate further in the war. It will be observed that nothing is said as to their being rescued after any engagement. A typhoid patient, or the victim of a cyclone or a stranding, is equally within the rule with a defeated armada. Since vessels in distress have always been peculiarly protected (or have even been restored, by somewhat quixotic enemies), this provision is particularly gratuitous and objectionable, though it was extended to neutral war ships as well as territory by Art. 13 of No. 10 of 1907. It is only proper to cut
it down as much as possible. Thus the word "landed" (débarqués) may exclude the case of shipwrecked men who come ashore by swimming, or by escape from a wreck. And even where there is a regular "landing" from a ship, it will be noted that the Article rather implies that the landing shall be from a ship of his own side. If he is picked up by a neutral vessel, it is agreed that the situation contemplated by the Article does not arise. It is on this ground that the Dutch released the British survivors. They were, in the first place, after their shipwreck, taken on board a neutral vessel, which was not a war ship (so that the internment provisions of Art. 13 of No. 10 of 1907 did not apply). Once in that position, the Article became inapplicable, though a German war ship might have demanded their surrender en route under Art. 12 of No. 10 of 1907. The subsequent landing was simply a landing of men already under neutral protection in a neutral port. It is difficult to appreciate the force of the logic, though we gratefully recognise the humanity of the argument.
Reservists on Neutral Vessels.
The mere carriage of military persons has never, we believe, been made an occasion for interference with neutral vessels. This, in fact, was the great strength of the British case in dealing with the stoppage of the Trent. It is not un-neutral service to carry civil or military servants for hire. Nor are such persons contraband. The uses of a man as a human being preponderate over his utility as a soldier or an ambassador. The cases in which it has been held un-neutral service are (including the Japanese case of the Nigretia) all cases in which the ship was temporarily under hostile control (though fraud or force may have been exercised on the master or owner). It is, of course, possible that the proportion of reservists might be so high, and
so notorious, that the presumption that the voyage was organized by the enemy might be too strong to be disproved; and for any considerable movement of troops to take place the proportion must be high. The Declaration of London, however, goes considerably beyond the law. By Art. 47, "every person included, 'incorporés,' ['embodied,' the current translation, has a connotation in English which is a trifle misleading] in the armed forces of the enemy, who is found on board a neutral merchantman, may be taken prisoner, even in cases where there is no ground for capturing the ship." This provision has often been criticized as unEnglish, obliging a neutral to give up, for instance, rescued men whose fate may be exceedingly uncertain, once they go over the ship's side. But, if we can take advantage of this provision, it certainly gives us all we want in the particular matter of arresting reservists. The United States have ratified the Declaration, but we cannot expect any nation to allow it to be adopted in an altered form, and to admit certain of its provisions to be law whilst others are discarded.
IX.-NOTES ON RECENT CASES (ENGLISH).
HE Law Reports for the last three months are, as might be expected, very scanty in bulk: they fill, in fact, less than 250 pages. Few of the cases reported are of any considerable or even general interest. Perhaps the most noticeable in this respect is In re Harris, Davis v. Harris (L. R. , 2 Ch. 395). In that case two questions arose. The first was as to an executor's right to retain a simple contract debt due to him, as against specialty debts owed by the testator to other creditors. Hinde Palmer's Act 1869 abolished the preference theretofore enjoyed by specialty creditors. The English Courts, however, in interpreting this statute, held that it did not