During the World War, while our country was yet neutral, the question indicated in the title subject was one of the many which came up for consideration and determination. By expression or implication it recognizes two factors ; first, that regular judicial proceedings in prize probably cannot be had at an advanced base, and second, that the military situation may preclude sending such seized vessels into a port of the United States where a prize court may be in session.
Our participation in the struggle was portended to a practical certainty ; and in anticipation thereof it seemed only wise and prudent to reach, as far as possible, some definite conclusions, and to outline a course of action for our naval commanders, in relation to this important matter.
It was the writer’s privilege to prepare a discussion of the several phases, principally legal, of the subject involved; and although so far as he knows the regulations recommended were not actually applied in any given instance—largely, if not wholly, for lack of occasion—it is thought that the presentation to the service through the medium of these pages of the arguments employed and the conclusions reached may lead to valuable discussion of their soundness and practicability.
However earnestly we may wish and hope that international negotiations, conceived in optimism and prosecuted in mutual forbearance, may cause wars to cease, history justifies us in entertaining the possibility of future wars wherein we shall desire to perform worthy deeds in conformity with honorable principles. For this it will be well to prepare in advance by formulating rules for guidance in cases likely to arise.
“Times change and we change with them.” Views are modified as particular interests alter their aspect of importance or inconsequence. It may be that yesterday’s solution of a problem will seem illogical or inappropriate to-day or to-morrow. It is with these ideas in mind that the following observations are presented for consideration.
The nature of this subject demands that it be discussed from two points of view; the one that of municipal law, the other that of international law. Where these two, viewpoints coincide there will be no conflict of conclusion ; where they differ the differences must be reconciled in the light of reason and in consonance with current established practice of nations.
The municipal law governing United States naval forces in such cases is found in the Constitution itself as well as in the legislative acts of the Congress.
The Constitution of the United States, article I, section 8, clause ii, confers upon the Congress the power: “to ... make Rules concerning Captures on Land and Water.” Congress has exercised this power in enacting the legislation contained in the Revised Statutes of the United States, Title LIV, Prize.
Of particular application to the subject under discussion is Section 4624, R. S., which reads as follows:
Section 4624. Whenever any captured vessel, arms, munitions, or other material are taken for the use of the United States before it comes into the custody of the prize court, it must be surveyed, appraised, and inventoried, by persons as competent and impartial as can be obtained and the survey, appraisement, and inventory, shall be sent to the court in which proceedings are to be had; and if taken afterward, sufficient notice ' shall first be given to enable the court to have the property appraised for the protection of the rights of the claimants and captors. In all cases of property taken for or appropriated to the use of the government, the department for whose use it is taken or appropriated shall deposit the value thereof with the Assistant Treasurer of the United States nearest to the place of the session of the court subject to the order of the court in the case.
It will be noted that the language of this statute makes no distinction between neutral property and enemy property. From this omission it may reasonably be inferred that the conversion or appropriation to use of captured property, that of neutrals as well as that of the enemy, is authorized; and the fact that this conversion or appropriation may be effected in advance of actual judicial hearing or condemnation is plainly stated: “ Before it comes into the custody of the prize court, . . ."
Historically interesting in connection with this same subject is the act of March 3, 1863 (37th Congress, session III, page 6, section 2) which, in part, is in these words:
Section 2. And Be It Further Enacted, That the Secretary of the Navy and the Secretary of War shall be, and they or either of them are hereby, authorized to take any captured vessel, any arms or munitions of war, or other material, for the use of the government; and when the same shall have been taken, before being sent in for adjudication, the department for whose use it was taken shall deposit the value of the-same in the Treasury of the United States, subject to the order of the court in which prize proceedings shall be taken in the case; . . . .
Shortly after the passage of this act it was made the subject of a diplomatic protest by the British Ambassador to the United States. Because of this protest the Secretary of State under the date of May 9, 1863, requested an opinion of the Attorney General of the United States upon the provisions of the act involved. The opinion was requested in two questions, as follows:
1. Whether, under the clause of the Constitution which authorizes Congress to make rules concerning captures on land and water, that authority has been exceeded by the enactment of the second section referred to?
2. Whether the section itself gives such an extension to the belligerent right of capture and a corresponding diminution of the just rights of neutrals as is not warranted by public law ?
In reply the Attorney General said :
I am clearly of opinion that the authority has not been exceeded, and that there is no conflict between the section of the Act and the clause of the Constitution indicated.
As to the second question, I do not perceive that the section itself gives any extension to the belligerent right of capture; and, therefore, there can be 110 corresponding diminution of the just rights of neutrals in that regard, for the section applies itself wholly to a state of facts existing after the capture. The principles and facts upon which the capture may be justified or condemned, are not touched by the section.
Farther along in the same opinion the Attorney General, in noting that municipal law may, and not infrequently does, conflict with public international law, sometimes even with danger of grave complications, says:
I am not aware of any settled doctrine of the law of nations, to the effect that a belligerent nation whose cruiser has captured a vessel, as prize of war, has the right, at its own pleasure and convenience, to appropriate the prize to its own use, before condemnation. (I speak not here of the case often mentioned in the books, in which the captor at sea is excused from sending in the prize for obvious reasons of necessity—that is an exception against the rule.) The rule is that the prize must be sent in for adjudication, not necessarily for the benefit of the captor nation, for it cannot be certainly known that the captor has any beneficial interest in the prize until that fact is ascertained by legal adjudication, (in Op. Atty. Gen. 519.)
Moore (International Law Digest, 7, p. 620), quoting the syllabus of the opinion of the Attorney General, apparently misinterprets the real gist of the opinion, with which the syllabus is actually at variance. The syllabus states:
.... This provision is not in conflict with the public law of war, and does not impair the just rights of neutrals. . . .
a statement which is broader than that contained in the body of the opinion, to wit,
.... and, therefore, there can be no diminution of the just rights of neutrals in that regard,
that is, capture, but not appropriation or requisition before being brought into the jurisdiction of the prize court.
The Attorney General’s attitude of mind regarding the justification under international law of the section in question is significantly indicated in the concluding paragraph of the opinion:
Fortunately, the law objected to by the British minister is not imperative. It does not require the Secretaries of the Navy and of War, to take any prize, for the public use, before condemnation. It only authorizes them to do it, and leaves the act to their sound discretion. So that if there be any danger of dissatisfaction on the part of foreign powers, that danger may be easily avoided by abstaining from the use of the power granted by the said 2d section of the act.
The above quoted act of March 3, 1863, section 2, was expressly repealed by the act of June 30, 1864 (13 Stat., Section 35, p. 316) and is therefore no longer binding as municipal law. Section 27 of the repealing act, which is in effect a substitute for the section thus repealed, is identical with section 4624 of the Revised Statutes, previously quoted herein.
Section 2 of the Act of March 3, 1863, has fairly recently been substantially quoted in a judgment of the Judicial Committee of the Privy Council (British) hearing an appeal from an order of the Admiralty Division in Prize, in. qualified support of their decision confirming the judgment of the lower court in respect to the right of the British Crown to requisition neutral cargo (Case of the Zamora, April 7, 1916). The appellate court referred to Section 2, not in full approval thereof—on the contrary they courteously regarded it as “somewhat unfortunate from the standpoint of an international lawyer”—but “as embodying the considered opinion of the United States authorities as to the right possessed by a belligerent to requisition vessels or goods seized as prize before adjudication.” The higher British court seems to have been in ignorance of the fact that this act was repealed the year following its enactment, a half century ago.
The repealed statute is of interest as indicative of the view held by the United States authorities under the exigencies of the situation, the Civil War, existing at the time of its enactment.
So far, then, as municipal law is concerned Section 4624 of the Revised Statutes, which is still in force, apparently authorizes the appropriation or requisition of captured vessels and their cargoes before judicial proceedings and condemnation; and this, whether such vessels and cargoes are of neutral or enemy character, even before coming into the custody of the court.
It remains then to determine what authority, if any, there is under international law for such appropriation or requisition of captured vessels and cargoes in advance of judicial condemnation.
In investigating this phase of the question it will be well to consider the practice, expressly authorized or tacitly permitted with approval, on the part of the several maritime nations.
The German Prize Code of September 30, 1909, as in force July 1, 1915, prohibits requisition in the following language:
9. The commander may not, without the consent of the parties interested, requisition a vessel or goods not subject to capture or seizure, even if payment is made.
As to this, however, skeptical ones may suggest that Teutonic logic and shrewdness would not be overtaxed in arriving at a favorable “interpretation” of this prohibitory provision on occasion.
The French Prize Regulations of 1912, Article 148, permit requisition of enemy vessels.
The British view as presented in a recent famous case, that of the Zamora, April 7, 1916, above referred to, may be gathered from the recorded conclusion of the Judicial Committee of the Privy Council in that case:
A belligerent power has by international law the right to requisition vessels or goods in the custody of its prize courts, pending a decision of the question whether they should be condemned or released, but such right is subject to certain limitations. First, the vessel or goods in question must be urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security. Secondly, there must be a real question to be tried, so that it would be improper to order an immediate release. And, thirdly, the right must be enforced by application to the Prize Court, which must determine judicially whether, under the particular circumstances of the case, the right is exercisable. (Italics are the writer’s.)
It will be observed that neither the German Prize Code, nor the French Prize Regulations, nor the British view as set forth in the judicial decision just quoted, approves or sanctions the requisition of neutral vessels or cargoes prior to their delivery to the prize court for adjudication. Several cases tried before the French prize courts in the earlier stages of the current war seem to have awarded the neutral claimant full compensation where ships and cargoes had been taken and appropriated to the use of the French Government.
Article 49 of the United States War Code of 1900 which, although withdrawn from circulation in 1904, may yet be considered as expressing to some degree at least the views of the United States on the subjects treated of in that code, reads as follows:
Article 49. The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel or its cargo is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to by the Prize Court.
Note that in this article, which was doubtless so phrased as to come within the authorized provisions of Section 4624, Revised Statutes, supra, there is expressed no distinction between enemy and neutral property.
Article 6 of the same Code provides:
Article 6. If military necessity should require it, neutral vessels found within the limits of belligerent authority may be seized and destroyed or otherwise utilized for military purposes, but in such cases the owners of neutral vessels must be fully recompensed. The amount of the indemnity should, if practicable, be agreed on in advance with the owner or master of the vessel. Due regard must be had to treaty stipulations upon these matters.
Article 54 of the Declaration of London of 1909, which having been signed by the United States may for the purposes of this discussion be considered as expressive of policy and intention, touching upon the subject of the destruction of captured vessels, provides:
Article 54. The captor has the right to demand the handing over, or proceed himself to the destruction of, any goods liable to condemnation found on board a vessel not herself liable to condemnation, provided that the circumstances are such as to, under Article 49 (of this Declaration) justify the destruction of a vessel liable to condemnation…
From a consideration of the foregoing observations and references it appears that so far as municipal law is concerned there is sufficient authority to support United States naval commanders in the requisition or appropriation of neutral vessels and cargoes before their actual condemnation by a prize court; but that the consensus of opinion of the several great nations, including the principal belligerents in the present war, is against the practice of requisitioning or appropriating in advance of delivery to a prize court for judicial proceedings and decree. Professor George Grafton Wilson expresses his view thus:
While any prize may thus, under Act of June 30, 1864 (Revised Statutes, Section 4624), be legally converted to immediate public use, and would be under compelling circumstances, it is inadvisable to so convert neutral property, taken as prize, because indemnification will follow if the prize court fails to condemn the property.
Up to this point this discussion has had reference to the general question as to whether or not United States naval commanders have the right under either municipal or international law, or both, to requisition and appropriate, in advance of judicial condemnation, neutral vessels and cargoes, wherever seized and wherever sent in.
A special feature of the particular question under consideration is whether or not such rights as may be generally possessed can be exercised within the limits of an advanced base. For whatever cause seizures may be made the subsequent procedure in the normal course of events involves sending in to a port of the captor the seized vessel in order that the case may be adjudicated before a civil court of adequate jurisdiction sitting as Court of Prize. In fact this procedure is required by the Prize Law of the United States (Revised Statutes, 4616). It is necessary because title to prize does not pass and invest anew until established and confirmed by judicial proceedings. Courts of prize are the sole competent judges of the validity of capture.
Prize courts are prohibited from sitting or performing their judicial functions in neutral territory (Hague XIII, Article 4).
It is highly improbable that duly established prize courts, as now constituted by statute, would be available at an advanced base; it is therefore almost certain that there would be no court at an advanced base competent, legally speaking, to pass upon the validity of capture. The question would then arise concerning the disposition to be made of a captured ship and her cargo. Obviously if there is no court of jurisdiction sitting at the advanced base no final judgment can be had. The captor is then confronted with a problem in solution of which are these alternatives: either he must send the captured vessel and cargo into a port of the United States, or he must make proper disposition of them in advance of prize court proceedings. What disposition can be made of them at an advanced base? It would seem to be beyond doubt that whatever right of disposition of captured property the captor may possess on the high seas, he may also exercise within the limits of an advanced base under his authority, provided that such advanced base is not situated within neutral territory.
This immediately brings into consideration the status of such advance bases as we now possess, or may hereafter obtain, in leased foreign territory. For example, Guantanamo, Cuba, and Fonseca, Nicaragua. Is the United States naval station at Guantanamo in foreign territory within the meaning of international law; that is. if the United States were at war and Cuba were neutral, would this naval station be in neutral territory?
The jurisdictional status of leased areas has been the subject of much discussion and consideration in the past. Volumes of correspondence of a diplomatic nature have passed between the great powers in relation to the international character of the areas leased by China to the several powers. The actual status of the territory acquired by lease from China to the various European powers is a matter upon which there can be said to be almost unanimous accord. Whether or not sovereignty as well as administrative jurisdiction passes with the lease is still in question, in a report of Minister Conger to the Secretary of State, Mr. Hay (Foreign Relations, U. S., 1900, 386), he says:
I have conferred with the English, German, Russian, French, Spanish, Netherlands, and Japanese ministers upon the subject, and all of them except the Japanese agree that the control over all of these leased ports has, during the existence of the lease, passed as absolutely away from the Chinese Government as if the territory had been sold outright, and that they are as thoroughly under the jurisdiction of the lessee governments as any portion of their home territory, and their consuls, accredited to China, would not attempt to exercise jurisdiction in any of said ports.
Territorial jurisdiction may be based on initial, or fundamental, sovereignty, on lease, or on some other special ground. The jurisdiction based on sovereignty is in general exclusive, though some exceptions are sanctioned by international law and practice. The jurisdiction based upon lease is naturally dependent upon the terms and conditions of the lease, which are various. In the Chinese lease of Wei-hai-wei to Great Britain, July 1, 1898, it is agreed that, “…Within the above-mentioned territory leased Great Britain shall have sole jurisdiction ” Article III of the convention leasing Kuang Chau Wan to France by China, ratified January 5, 1900, says: “ The territory shall be governed and administered during the 99 years of the lease by France alone, so that all possible misunderstandings between the two countries may be obviated. . . .”
The agreement between the United States and Cuba of February 23, 1903, contains the following:
Article III. While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the republic of Cuba over the above described areas of land and water, on the other hand the republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said area with the right to acquire (under conditions to be hereafter agreed upon by the two governments) for the purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.
On the face of it this article seems to indicate that while Cuba does not cede to the United States ultimate territorial sovereignty over the leased areas she nevertheless agrees that the United States shall, during the term of the lease exercise plenary and exclusive jurisdiction over such territory. Under this interpretation of the conditions of the agreement it would not seem to be claiming too much to maintain that for all purposes of both peace and war the United States naval station at Guantanamo and, by analogy, that at Fonseca, Nicaragua, are wholly within the jurisdiction of the United States. (The analogy is perfect so far as Nicaragua is concerned, under the provisions of Article II of the Treaty, No. 624, between the United States and Nicaragua, proclaimed June 24, 1916. There is, however, a flaw in the title to the whole Gulf of Fonseca, because of the riparian rights of the neighboring states, Salvador and Honduras, with whom appropriate treaties have not yet been concluded.)
After reviewing the principles and practices discovered in the foregoing discussion it seems not unreasonable to conclude that although the practice of requisition and appropriation of neutral vessels and cargoes which are presumptively liable to condemnation, in advance of their delivery into the custody of a prize court, is authorized by the domestic law of the United States, the same is not recognized by international authority or agreement and for this reason should be indulged in under no condition other than that of imperative military necessity.
The following suggestions have been made as rules for guidance in the circumstances of the case under consideration:
1. A neutral merchant vessel which may be seized for probable cause, whether fault of ship or fault of cargo, should, in all cases where compelling necessity does not render such course impracticable, be sent in with as little delay as feasible to a port of the United States where a Prize Court is or may be sitting.
2. Should, however, military exigency forbid such sending in, the neutral merchant vessel so seized may be detained in company with the captor forces or sent in to an advanced base of the United States naval forces and there detained until the passing of such exigency.
3. If the captor forces have need, for immediate public use, of the neutral merchant vessel or of her cargo so seized and sent in to an advanced base, the vessel and cargo may be converted to such use, a careful inventory and appraisal of the property so converted being made by impartial persons and certified and transmitted to the Prize Court along with other related documents and evidence.
4. The conversion to captor’s use of neutral vessels and cargoes, prior to delivery into the jurisdiction of a court of prize, is always inadvisable and should be resorted to only under compelling circumstances.
5. In all cases of requisition or appropriation to use of captured vessels or cargoes, whether enemy or neutral, in advance of Judicial proceedings and decree, the Navy Department should be promptly and fully informed in order that the provisions of Section 4624, Revised Statutes, concerning depositing in the treasury the value of the property so taken, may be complied with.