Commentaries on American Law

principle of neutrality. In the year 1793, the British ship Grange was captured in Delaware Bay by a French frigate, and upon due complaint the American government caused the British ship to be promptly restored. (d) So in the case

of the Anna (e) the sanctity of neutral territory was 118 fully asserted and vindicated, and restoration made of property captured by a British cruiser near the mouth of the Mississippi, and within the jurisdiction of the United States. It is a violation of neutral territory for a belligerent ship to take her station within it, in order to carry on hostile expeditions from thence, or to send her boats to capture vessels being beyond it. No use of neutral territory, for the purposes of war, can be permitted. This is the doctrine of the government of the United States. (a) It was declared judicially in England,

(d) Mr. Jefferson's Letter to Mr. Ternant, of 15th May, 1793.

(e) 5 C. Rob. 373.

(a) Mr. Randolph's Circular to the Governors of the several States, April 16, 1795. The American Commissioners to the court of France (Benjamin Franklin, Silas Deane, and Arthur Lee), in their circular letter in 1777, to the commanders of American armed vessels, carried very far the extension of neutral protection, when they applied it indiscriminately to all captures "within sight of a neutral coast." Diplomatic Correspondence, by J. Sparks, ii. 110. Vide supra, Lecture II.

the garrison was feeble, and that the American commander had not applied in proper time to the local officers for protection, but had resisted the attack with arms, thus himself violating the neutrality of the territory. Wheat. Lawrence's note 217; Wheat. Dana's note 208. In 1 Pistoye & Duverdy, Traité des Prises Maritimes, 107, a contrary doctrine to that of Historicus is laid down.

The right of the neutral government to reparation from the offending belligerent is not disputed. During the late war, in 1864, the rebel steamer Florida was taken out by night from the Brazilian port of Bahia, where she had sought refuge, by the Wachusett, a war vessel of the United States. The American gov. ernment disavowed the act, and although

r1 The Florida, 101 U. S. 37, was a case arising out of the transaction here mentioned. It was held that no title to

unable to restore the Florida, which was accidentally sunk, gave other reparation satisfactory to Brazil. Wheat. Dana's note 208. The matter is related with some temper in the Annual Register, 1864, p. 281. x1 See also Mr. Seward to Lord Lyons, June 10, 1863, 1 Dip: Corr. 1863, p. 581, for another admission of the same principle.

It is undoubtedly true, that no private person can rest a claim for the restoration of prize in the courts of the captor on the ground that the capture was made in neutral waters, and that the neutral nation whose rights have been infringed alone can interpose. The Lilla, 2 Sprague. 177; The Sir William Peel, 5 Wall. 517; The Adela, 6 Wall. 266; The Anne, 3 Wheat. 435; Wheat. Dana's note 209.

the Florida vested in the United States, and that the vessel could not be libelled as prize.

in the case of the Twee Gebroeders; (b) and though it was not understood that the prohibition extended to remote objects and uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared, that no proximate acts of war were in any manner to be allowed to originate on neutral ground; and for a ship to station herself within the neutral line, and send out her boats on hostile enterprises, was an act of hostility much too immediate to be permitted. No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence. The neutral is to carry himself with perfect equality between both belligerents, giving neither the one nor the other any advantage; and if the respect due to neutral territory be

violated by one party, without being promptly punished *119 by *just animadversion, it would soon provoke a similar treatment from the other party, and the neutral ground would become the theatre of war. (a)

If a belligerent cruiser inoffensively passes over a portion of water lying within neutral jurisdiction, that fact is not usually considered such a violation of the territory as to affect and invalidate an ulterior capture made beyond it. The passage of ships over territorial portions of the sea is a thing less guarded than the passage of armies on land, because less inconvenient, and permission to pass over them is not usually required or asked. To vitiate a subsequent capture, the passage must at least have been expressly refused, or the permission to pass obtained under false pretences. (b)

The right of a refusal of a pass over neutral territory to the troops of a belligerent power depends more upon the inconvenience falling on the neutral state, than on any injustice committed to the third party, who is to be affected by the permission or refusal. It is no ground of complaint against the intermediate (b) 3 C. Rob. 162.

(a) When Don Miguel, 1828, ascended the throne of Portugal, by a vote of the Portuguese Cortes, in violation of the title by succession of his niece, Donna Maria, England declared herself neutral as between those claimants, in their domestic quarrel for the crown. Having declared her neutrality, England maintained it with fidelity and vigor. She would not allow any warlike equipments by either party in her ports; and when an armament had been fitted out in disguise, and sailed from Plymouth, in support of the claims of Donna Maria, England sent a naval force, and actually intercepted the Portuguese armament in its destination to the island of Terceira. (b) The Twee Gebroeders, 8 C. Rob. 336.

neutral state if it grants a passage to belligerent troops, though inconvenience may thereby ensue to the adverse belligerent. It is a matter resting in the sound discretion of the neutral power, who may grant or withhold the permission, without any breach of neutrality. (c) No belligerent power can claim the right of passage through a neutral territory, unless founded upon a previous treaty; and it cannot be granted by a neutral, where there is no antecedent treaty, unless an equality of privilege be allowed to both belligerents. This is the reasonable and just rule to be deduced from the opinions of jurists and the conventional law of modern nations. (d)

* Bynkershoek (a) makes one exception to the general *120 inviolability of neutral territory, and supposes that if an enemy be attacked on hostile ground, or in the open sea, and flee within the jurisdiction of a neutral state, the victor may pursue him dum fervet opus, and seize his prize within the neutral state. He rests his opinion entirely on the authority and practice of the Dutch, and admits that he had never seen the distinction taken by the publicists, or in the practice of nations. It appears, however, that Casaregis, and several other foreign jurists mentioned by Azuni, (b) held a similar doctrine. But D'Abreu, Valin, Emerigon, Vattel, Azuni, and others maintain the sounder doctrine, that when the flying enemy has entered neutral territory, he is placed immediately under the protection of the neutral power. The same broad principle that would tolerate a forcible entrance upon neutral ground or waters, in pursuit of the foe, would lead the pursuer into the heart of a commercial port. There is no exception to the rule that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. (c) The neutral border must not be used as a shelter for

(d) Grotius, b. 3, c. 7, sec. 2, 3; Vattel, b. 3, c. 7, sec. 126; Manning's Commentaries, 182-186. Within a few years after the expulsion of the Tarquins, the Romans, under the auspices of the consul Spurius Cassius, concluded a league with the thirty cities or states of Latium; and one article was, that neither party should give to each other's enemies a passage through their lands. Dionysius, b. 6, sec. 95; Niebuhr's History of Rome, ii. 28.

(a) Q. J. Pub. b. 1, c. 8.

(b) Maritime Law, ii. 223, ed. N. Y.

1 Ante, 117, n. 1; Historicus, Int. Law, 153, 159.

making preparations to renew the attack; and though the neutral is not obliged to refuse a passage and safety to the pursuing party, he ought to cause him to depart as soon as possible, and not permit him to lie by and watch his opportunity for further contest. This would be making the neutral country directly auxiliary to the war, and to the comfort and support of one party. In the case of the Anna, (d) Sir William Scott was inclined to agree with Bynkershoek to this extent, that if a vessel refused to submit to visitation and search, and fled within neu

tral territory, to places which were uninhabited, like the * 121 little mud islands before the mouth of the Mississippi,

and the cruiser, without injury or annoyance to any person, should quietly take possession of his prey, he would not stretch the point so far, on that account only, as to hold the capture illegal. But in this, as well as in every other case of the like kind, there is, in stricto jure, a violation of neutral jurisdiction, and the neutral power would have a right to insist on a restoration of the property. It was observed by the same high authority, in another case, depending on a claim of territory, (a) "that when the fact is established, it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding it may actually belong to the enemy."

A neutral has no right to inquire into the validity of a capture, except in cases in which the rights of neutral jurisdiction were violated; and, in such cases, the neutral power will restore the property, if found in the hands of the offender, and within its jurisdiction, regardless of any sentence of condemnation by a court of a belligerent captor. (b) It belongs solely to the neutral government to raise the objection to a capture and title, founded on the violation of neutral rights. The adverse belligerent has no right to complain when the prize is duly libelled

was observed by the American Secretary of State (Mr. Webster), in the diplomatic correspondence between him and the British minister (Lord Ashburton), relative to the case of the steamboat Caroline, on the Canadian border, and seemingly admitted by Lord Ashburton, that, to justify a hostile entrance upon neutral territory, there must exist a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.

(d) 5 C. Rob. 373, 385, d.

(a) The Vrow Anna Catharina, 5 C. Rob. 15.

(b) The Arrogante Barcelones, 7 Wheaton, 496; The Austrian Ordinance of Neutrality, August 7, 1808, art. 18; La Amistad de Rues, 5 Wheaton, 390.

before a competent court. (c) If any complaint is to be made. on the part of the captured, it must be by his government to the neutral government, for a fraudulent, or unworthy, or unnecessary submission to a violation of its territory, and such submission will naturally provoke retaliation.1 In the case of prizes brought within a neutral port, the neutral sovereign exercises jurisdiction so far as to restore the property of its

own subjects, illegally captured; and this is done, says *122 Valin, (a) by way of compensation for the asylum granted to the captor and his prize. It has been held, in this country, that foreign ships, offending against our laws, within our jurisdiction, may be pursued and seized upon the ocean, and rightfully brought into our ports for adjudication. (6) 1

The government of the United States was warranted by the law and practice of nations, in the declarations made in 1793, of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent powers, in their intercourse with this country. (c) These rules were, that the original arming or equipping of vessels in our ports, by any of the powers

(a) Comm. ii. 274.

(b) The Marianna Flora, 11 Wheaton, 42.

(c) Vattel, b. 3, sec. 104; Wolfius, sec. 1174; Austrian Ordinance of Neutrality, August 7, 1803; Cours de Droit Public, par M. Pinheiro-Ferreira, ii. 44-47.

1 Ante, 117, n. 1; Historicus, Int. Law, 159.

1 In June, 1857, the Cagliari, a Sardinian mail steamer, plying between Genoa and Tunis, was seized by armed men and directed to a small island where were confined some Neapolitan prisoners. These were released and taken on board, and the vessel was directed to the coast of Naples. There the armed men and the released prisoners landed, with the intent to promote an insurrection, and abandoned the vessel. The master at once set sail for Naples under the Sardinian flag, but was captured by a Neapolitan cruiser on the high seas. The prize court at Naples condemned the vessel, and the government held the master and crew, including two Englishmen, as prisoners of war. Dr. Twiss and Dr. Phillimore

both gave opinions that the seizure, as it was not belligerent, and as the vessel was not under the suspicion of a pirati cal condition, was illegal, and that the privilege of the flag was the privilege of the state. June 8, 1858, the Cagliari and crew were given up to the British government, upon their earnest remonstrances, and by them restored to Sardinia. The Neapolitan appellate court afterward pronounced the seizure rightful, on the ground that the vessel had been engaged in mixed acts of war and piracy, with the fault of the master and crew. Ann. Reg. 1858, pp. 63, 181; Wheat. Dana's note 240; Wheat. Lawrence's note 84; Dr. Abdy (Kent, 331, 332) thinks this qualifies the case of the Marianna Flora.

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