secretary of my office, in the city of Barranquilla, on the eighteenth day of the month of April, 1885. [Signed] Pedroa Lara. "The Secretary [Signed] R. A. Del Valle." Indorsed: "Office of the Military, "Barranquilla, April 18, 1885. "Registered and noted in folio and book, respectively. "The General in Chief, N. Juneno Collante. "Adjutant and Secretary, A. Solanom." Believing this commission to be irregular, and to show no lawful authority to cruise as a man-of-war on the high seas, Commander Clarke reported her under seizure, in accordance with the naval regulations, to Admiral Jouett, commanding the North Atlantic squadron, then: cruising in the Central American waters, and the admiral directed the vessel to be taken to New York for adjudication as prize. The vessel was at first supposed to belong to citizens of the United States. The proofs showed that she had been sold to, and legally belonged to, Colente, one of the chief military leaders of the insurgents at Barranquilla. None of her officers or crew were citizens of the United States. She was engaged upon a hostile expedition against Cartagena, and designed to assist in the blockade and siege of that port by the rebels. against the established government of the United States of Colombia. She had left Sabanilla on April 20th, bound for Baru, near Cartagena, where she expected the soldiers aboard to disembark. She was under. the orders of the colonel of the troops, whose instructions were to shoot the captain if disobedient to his orders. Further instructions were to fight any Colombian vessel not showing the white flag with a red cross. Sabanilla, and a few other adjacent sea-ports, and the province of Barranquilla, including the city of Barranquilla, had been for some months previous, and still were, under the control of the insurgents. The proofs did not show that any other depredations or hostilities were intended by the vessel than such as might be incident to the struggle between the insurgents and the government of Colombia, and to the so-called blockade and siege of Cartagena. As respects any recognition of the insurgents by foreign powers, it did not appear in evidence that up to the time of the seizure of the vessel, on April 24, 1885, a state of war had been recognized as existing, or that the insurgents had ever been recognized as a de facto government, or as having belligerent rights, either by the Colombian government, or by our own government, or by any other nation. The claimants introduced in evidence a diplomatic note from our Secretary of State to the Colombian minister, dated April 24, 1885, which, it was contended, amounted to a recognition by implication of a state of war. The government claimed the forfeiture of the ship as piratical, under the law of nations, because she was not sailing under the authority of any acknowledged power. The claimants contended that, being SCOTT INT. LAW-35 actually belligerent, she was in no event piratical by the law of nations; but if so, that the subsequent recognition of belligerency by our government by implication entitles her to a release. Elihu Root, U. S. Atty., and J. P. Clark, Asst. Atty., for the United States. Frank F. Vanderveer, for claimants. BROWN, J. * * * 6. That recognition by at least some established government of a "state of war," or of the belligerent rights of insurgents, is necessary to prevent their cruisers from being held legally piratical by the courts of other nations injuriously affected, is either directly affirmed, or necessarily implied from many adjudged cases; and I have found no adjudication in which a contrary view is even intimated. * * * This great weight of authority, drawn from every source that authoritatively makes up the law of nations, seems to me fully to warrant the conclusion that the public vessels of war of all nations, for the preservation of the peace and order of the seas, and the security of their own commerce, have the right to seize as piratical all vessels carrying on, or threatening to carry on, unlawful private warfare to their injury; and that privateers, or vessels of war, sent out to blockade ports, under the commissions of insurgents, unrecognized by the government of any sovereign power, are of that character, and derive no protection from such void commissions. It thus appears that the rules laid down and implied in the decisions of our Supreme Court in the cases of Rose v. Himely [4 Cranch, 241, 2 L. Ed. 608], and U. S. v. Palmer, [3 Wheat. 610, 4 L. Ed. 471], nearly 70 years ago, have been since almost universally followed. The practical responsibility of determining whether insurgent vessels of war shall be treated as lawful belligerents, or as piratical, rests where the supreme court then in effect decided that it ought to rest, viz. with the political and executive departments of the government. These departments have it in their power, at any moment, through the granting or withholding of recognition of belligerency, and through the extent of such recognition as they may choose to accord, virtually to determine how such cruisers shall be treated by the courts. Even after judgment and sentence the prisoners may, like Smith and his associates, convicted before Mr. Justice Grier, be treated, and exchanged, as prisoners of war. And it is with those departments, exclusively, that the discretion. ought to rest to determine when and how its technical rights against rebel cruisers shall be enforced. Its naval regulations will be framed accordingly; and any seizures made under such regulations may be enforced, or at any moment remitted, at the pleasure of those depart ments. Parts of the opinion are omitted. SCOTT INT.LAW Where insurgents conduct an armed strife for political ends, and avoid any infringement or menace of the rights of foreign nations on the high seas, the modern practice is, in the absence of treaty stipulations or other special ties, to take no notice of the contest. One of the earliest applications of this rule that I have met is in the answer of the states-general to Sir Joseph York's demand in 1779 for the surrender of Paul Jones' prizes as piratically captured, in which their Mightinesses say that "they had for a century past strictly observed the maxim that they will in no respect presume to judge of the legality or illegality of the actions of those who, upon the open sea, have taken any vessels that do not belong to this country." On this point Prof. Lawrence, in his recent Hand-Book of Int. Law (London, 1884), says: "When a community, not being a state in the eye of international law, resorts to hostilities, it may, in respect of war, be endowed with the rights and subjected to the obligations of a state if other powers accord it what is called recognition of belligerency. Neutral powers should not do this. * * * (4) unless it affect by the struggle the interests of the recognizing state. If the struggle is maritime, recognition is almost a necessity. The controversy of 1861 illustrates the whole question." The practice is stated by Hall as follows: "When, however, piratical acts have a political object, and are directed solely against a particular state, it is not the practice for states other than that attacked to seize, and still less to punish, the persons committing them. It would be otherwise, so far as seizure is concerned, with respect to vessels. manned by persons acting with a political object, if the crew, in the course of carrying out their object, committed acts of violence against ships of other states than that against which their political operation was aimed; and the mode in which the crew were dealt with would probably depend on the circumstances of the case." Int. Law, § 81, p. 223. Whether a foreign nation shall exercise its rights only when its own interests are immediately threatened, or under special provocations only after injuries inflicted by the insurgents, as in this case, at Colon, is a question purely for the executive department. But when a seizure has been made by the navy department, under the regulations, and the case. is prosecuted before the court by the government itself, claiming summum jus—its extreme rights-the court is bound to apply to the case the strict technical rules of international law. The right here asserted. may be rarely enforced; the very knowledge that the right exists tends, effectually, in most cases, to prevent any violation of it, or at least any actual interference by insurgents with the rights of other nations. But if the right itself were denied, the commerce of all commercial nations would be at the mercy of every petty contest carried on by irresponsible insurgents and marauders under the name of war. In the absence of any recognition of these insurgents as belligerents, I therefore hold the Ambrose Light to have been lawfully seized, as bound upon an expedition technically piratical. * THE THREE FRIENDS." (Supreme Court of the United States, 1897. 166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897.) See post, p. 830, for a report of the case. 6 Notwithstanding the opinion in the principal case, it is to-day recognized in practice as well as in theory, that a vessel belonging to insurgents who have not yet been recognized, will not be treated as a pirate engaged in a piratical enterprise, if it limits its actions to the parent state. While it is unnecessary to cite authority for this statement, attention is invited to 2 Moore's Digest of International Law (1906) 1098 et seq., and L. Oppenheim, 1 International Law (2d Ed., 1912) 342. 7 As this case deals with the question of neutrality, it is printed in Part III, chapter XV, Belligerent Use of Neutral Territory. The portion of the opinion to which reference is made for present purposes deals with the distinction between belligerency and insurgency, post, p. 834. CHAPTER III ENEMY PROPERTY IN TERRITORY OF OTHER Ex parte BOUSSMAKER. (High Court of Chancery, 1806. 13 Ves. Jr. 71.) The object of this petition was to be admitted to prove a debt under a commission of bankruptcy, which the commissioners refused to admit, upon the objection, that the creditors applying to prove were alien enemies. Mr. Perceval, in support of the petition. This proof ought to be admitted at least. It will be another consideration, whether the petitioners shall receive dividends. But clearly the other creditors ought not to be permitted to take the dividends accruing upon this debt; for the crown will be entitled. There is no law, now subsisting, that a debtor to an alien enemy shall not pay the debt: the act of Parliament to prevent that in the last war having expired; and not being renewed. Upon the common law undoubtedly the objection might be made by the debtor by plea. The demand would survive at the end of the war; the suit only being suspended. The effect of that suspension will be obtained, admitting the proof, either by not permitting them to take a dividend, or by having it paid into Court. Here is no allegation, that these persons were alien enemies at the date of the contract. The LORD CHANCELLOR [ERSKINE]. If this had been a debt, arising from a contract with an alien enemy, it could not possibly stand; for the contract would be void. But, if the two nations were at peace at the date of the contract, from the time of war taking place the creditor could not sue; but, the contract being originally good, upon the 1 For sequestration of property during the World War of 1914-1918, see James W. Garner's article entitled "Treatment of Enemy Aliens," 12 American Journal of International Law (1918) 744, and his International Law and the World War, vol. 1, p. 86 et seq. (1920); "Germany's Treatment of American Property," Report of the Alien Property Custodian for 1919, p. 268; and "American Property in Germany," The Nation, February 16, 1921, p. 272. See, also, Ernest J. Schuster, "The Peace Treaty [of Versailles] in Its Effects on Private Property," British Year Book of International Law, 1920-21, p. 167; J. W. Scobell Armstrong, War and Treaty Legislation Affecting British Property in Germany and Austria and Enemy Property in the United Kingdom (1921), and Paul F. Simonson, Private Property and Rights in Enemy Countries, under the Peace Treaties with Germany, Austria, Hungary, Bulgaria, and Turkey (1921). Evans v. Richardson, 3 Mer. 469 (1817); Ex parte Schmaling, Buck, 93 (1817); Potts v. Bell, 8 Term R. 548 (1800); Willison v. Patteson, 7 Taunt. 439 (1817), in which case this petition is supposed to have been heard by Lord Eldon. |