Commerce in War by L.A. Atherley-Jones

Author:L.A. Atherley-Jones [Atherley-Jones, L.A.]
Language: eng
Format: epub
ISBN: 9781344833264
Google: V12WDAEACAAJ
Publisher: Creative Media Partners, LLC
Published: 2015-10-18T01:34:22+00:00

The learned judge then deals with the argument that although resistance by a neutral convoy is unlawful and may incriminate the whole of the associated ships, yet since resistance by a belligerent convoy is lawful a forfeiture cannot flow from an act which is strictly justifiable.

“The fallacy of the argument,” answers the learned judge, “consists in assuming the very ground in controversy, and in confounding things in their nature entirely distinct. An act perfectly lawful in a belligerent may be flagrantly wrongful in a neutral. A belligerent may lawfully resist search; a neutral is bound to submit to it. A belligerent may carry on his commerce by force; a neutral cannot. A belligerent may capture the property of his enemy on the ocean; a neutral has no authority whatever to make captures. The same act, therefore, that with reference to the rights and duties of the one may be tortious, may with reference to the rights and duties of the other be perfectly justifiable. The act then, as to its character, is to be judged of, not merely by that of the parties, through whose immediate instrumentality it is done; but also by the character of those who, having co-operated in, assented to or sought protection from it, would yet withdraw themselves from the penalty of the act. It is analogous to the case at Common Law where an act justifiable in one party does not from that fact alone shelter his coadjutor. They must stand or fall upon their own merits. It would be strange indeed, if because a belligerent may resist search a neutral may co-operate to make it effectual. It is therefore an assumption utterly inadmissible that a neutral can avail himself of the lawful act of the enemy to protect himself in an evasion of a clear belligerent right.

“And what reason can there be for the distinction contended for? Why is the resistance of the convoy deemed the resistance of the whole neutral associated ships, let them belong to whom they may? It is not that there is a direct and immediate co-operation in the resistance, because the case supposes the contrary. It is not that the resistance of the convoy of the sovereign is deemed an act to which all his subjects consent, because the ships of foreign subjects would then be exempted. It is because there is a constructive resistance resulting in law from the common association and voluntary protection against search under a full knowledge of the intention of the convoy. Then the principle applies as well to a belligerent as to a neutral convoy? For it is manifest that the belligerent will at all events resist search; and it is quite as manifest that the neutral seeks belligerent protection with an intent to evade it. Is it that an evasion of search, by the employment of protection or terror of force, is inconsistent with neutral duties? Then a fortiori the principle applies to a case of belligerent convoy, for the resistance must be presumed to be more obstinant and the search more perilous.

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