18

No. 3. .. . , NOTE BY THE EAEL OF DESART RESPECTING THE DESTRUCTION OF NEUTRAL SHIPS. Much prejudice has been excited on this subject by opponents of the Declaration, who have either given little thought to the subject or who find in it a method of attack which is startling and picturesque, and likely to appeal to persons wholly ignorant either of the methods of war or of the history of wars. The only justification for such attack would be, that under the existing law of nations and according to the actual practice of nations, neutral vessels could not in any circumstances legitimately be destroyed—that in fact they had not been in the past, and could not in the future be, so destroyed in any circumstances, and that the right to do this is created by the Declaration of London. The actual facts are that prizes whether enemy or neutral would not as a rule be destroyed, both on general principles, and because it is in the interest of the captor to bring them in, and because of the difficulty of disposing of crews and passengers, which affords another deterrent. No question arises as to the right of a captor to destroy a prize which is undoubtedly an enemy ship, both on general grounds, and because on capture she becomes the property of the belligerent, who can deal as he chooses with her —and no question as to her being lawful prize arises. A neutral ship is on a different footing. Her seizure is on the ground that she is suspected to be lawful prize because of the nature of her cargo, or the service on which she is engaged, and it is for the Prize Court before which she should be brought to decide whether she is or is not lawful prize. No property in her passes to the captor, unless she is condemned by a Prize Court. Thus, on technical grounds alone we should contend that the belligerent's duty is to bring her in for adjudication. On general and practical grounds also, a belligerent has no right to destroy or damage the property of neutrals. This appears to me to be the principle in theory—but facts have to be faced, and the actual practice and exigencies of belligerents are what really govern the matter, so that it can only be dealt with in the light of this practice and these exigencies of war. As would be expected, there is general agreement that in principle neutral prizes should not be destroyed. This is conceded as the right principle, and the more readily, because it is, as a rule, the interest of the belligerent to preserve and bring in his prizes. But, adopting this principle, belligerents—including Great Britain—have taken the view that in exceptional cases a prize, whether it be enemy or neutral, must of necessity be destroyed, and has given effect to that view by so destroying them. That there may be circumstances in which a Naval Commander, who could not, without endangering his fleet or sacrificing the success of important operations, bring in a neutral vessel or release her, must either betray the interests of his country, or destroy his prize is clear, and there can be no doubt as to which alternative he would select. The British cases on this subject have been already cited, but as they are habitually disregarded by those who attack the Declaration, I again quote certain judgements of Lord Stowell and Dr. Lushington as showing the views of British Prize Courts on this point: — " Actaeon," 2 Dodson, 54 : " Lastly, it has been said that Captain Capel could not spare men from his own " ship to carry the captured vessel to a British port, and that he could not " suffer her to go into Boston, where she would have furnished important " information to the Americans. These are circumstances which may have " afforded very good reasons for destroying the vessel and may have made it " a very meritorious act in Captain Capel so far as his own Government is " concerned, but they furnish no reason why the American owner should be " a sufferer, .... I think, therefore, that he is entitled to receive " the fullest compensation." " Felicity," 2 Dodson, 386 : ' When doubtful whether enemy property and impossible to bring in .... " the safe and proper course is to dismiss.