tured prizes, and it is argued that having failed to interdict the entrance of prizes into our ports permission to thus enter must be assumed. But whatever privilege might arise from this circumstance it would not warrant the attempted use of one of our ports as a place in which to store prizes indefinitely, and certainly not where no means of taking them out are shown except by the augmentation of her crew, which would be a clear violation of established rules of neutrality.

[The learned judge then discussed the provisions of the treaty between Prussia and the United States and concluded that "such use of one of our ports was in no wise sanctioned by the Treaty of 1799."]

It remains to inquire whether there was jurisdiction and authority in an admiralty court of the United States, under these circumstances, to order restoration to an individual owner of the vessel and cargo.

The earliest authority upon this subject in the decisions of this court is found in the case of Glass v. The Sloop Betsey, 3 Dall. 6, decided in 1794, wherein it appeared that the commander of the French privateer, The Citizen Genet, captured as a prize on the high seas the sloop Betsey and sent the vessel into Baltimore, where the owners of the sloop and cargo filed a libel in the District Court of Maryland, claiming restitution because the vessel belonged to subjects of the King of Sweden, a neutral power, and the cargo was owned jointly by Swedes and Americans. The District Court denied jurisdiction, the Circuit Court affirmed the decree, and an appeal was prosecuted to this court. The unanimous opinion was announced by Mr. Chief Justice Jay, holding that the District Courts of the United States possessed the powers of courts of admiralty, whether sitting as an instance or as a prize court, and sustained the jurisdiction of the District Court of Maryland, and held that that court was competent to inquire into and decide whether restitution should be made to the complainants conformably to the laws of nations and the treaties and laws of the United States.

The question came again before this court in the case of The Santissima Trinidad, decided in 1822, reported in 7 Wheat. 283. In that case it was held that an illegal capture would be invested with the character of a tort, and that the original owners were entitled to restitution when the property was brought within our jurisdiction. The opinion was delivered by Mr. Justice Story. and, after a full discussion of the matter, the court held that

such an illegal capture, if brought into the jurisdiction of the courts of the United States, was subject to condemnation and restitution to the owners.

In the subsequent cases in this court this doctrine has not been departed from. L'Invincible, 1 Wheat. 238, 258; The Estrella, 4 Wheat. 298, 308-311; La Amistad de Rues, 5 Wheat. 385, 390.

It is insisted that these cases involve illegal captures at sea, or violations of neutral obligation, not arising because of the use of a port by sending in a captured vessel and keeping her there in violation of our rights as a neutral. But we are at a loss to see any difference in principle between such cases and breaches of neutrality of the character here involved in undertaking to make of an American port a depository of captured vessels with a view to keeping them there indefinitely. Nor can we consent to the insistence of counsel for appellant that the Prize Court of the German Empire has exclusive jurisdiction to determine the fate of the Appam as lawful prize. The vessel was in an American port and under our practice within the jurisdiction and possession of the District Court which had assumed to determine the alleged violation of neutral rights, with power to dispose of the vessel accordingly. The foreign tribunal under such circumstances could not oust the jurisdiction of the local court and thereby defeat its judgment. The Santissima Trinidad, supra, p. 355.

Were the rule otherwise than this court has frequently declared it to be, our ports might be filled in case of a general war such as is now in progress between the European countries, with captured prizes of one or the other of the belligerents, in utter violation of the principles of neutral obligation which have controlled this country from the beginning.

The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neutrality. In each case the jurisdiction and order rests upon the authority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindicating our rights and obligations as a neutral people.

It follows that the decree in each case must be

Affirmed.

NOTE. The law of neutrality is the most recently developed of the great divisions of international law. It was a concept unknown to

antiquity and the middle ages.

In every war it was assumed that every nation would be a friend or partisan of one or the other of the belligerents. The publicists of the eighteenth century, particularly Vattel, advocated as a matter of theory something like the modern law of neutrality. But it remained for Washington, actuated chiefly by the necessities of the young American republic, to give these theories practical effect by adopting them as the policy of the government. His steadfast devotion to the principle which he had espoused and his refusal to be diverted by the clamor of Jefferson and his followers in favor of France entitle Washington to recognition as the father of the modern law of neutrality. See Foster, A Century of American Diplomacy, 151; Lodge, George Washington, II, ch. iv; Evans, Writings of Washington, 404. On the law of neutrality in general see Bonfils (Fauchille), sec. 1441; Kleen, Lois et Usages de la Neutralité; Pillet, Les Lois Actuelles de la Guerre, chs. xi, xii; Fenwick, The Neutrality Laws of the United States; Moore, Digest, VII, ch. xxviii; Cobbett, Cases and Opinions, II, Part III. For the application of the principles of neutrality in the wars of the last half-century, see Bernard, The Neutrality of Great Britain during the American Civil War; Benton, International Law and Diplomacy of the SpanishAmerican War; Campbell, Neutral Rights and Obligations in the Anglo-Boer War; Ariga, La Guerre Russo-Japonaise; Hershey, International Law and Diplomacy of the Russo-Japanese War; Takahashi, International Law as Applied to the Russo-Japanese War; Lawrence, War and Neutrality in the Far East; Phillipson, International Law and the Great War; Garner, International Law and the World War, II, ch. xxxvi; Hyde, II, 692.

The development of the law of neutrality, particularly as respects the rights of neutrals, has been much hampered by the fact that the judicial determination of questions involving such rights has been largely in the hands of prize courts, which, not unnaturally, have been strongly impressed by the necessities of the belligerents which established them. Furthermore no neutral government can overlook the fact that it may sometime cease to be a neutral, and that the protests which it makes as a neutral against the claims of belligerents may be cited against it when it in turn becomes a belligerent. And in every country the powerful influence of the army and navy is unavoidably directed to the preservation of the rights of the government as a belligerent rather than as a neutral. As a result of all these forces, the rules governing the rights of neutrals have been formulated either by the prize courts of belligerents or by neutral governments which sought to compromise between their actual status as neutrals and their potential status as belligerents. In consequence the law governing neutral rights is crude and indefinite, and it would seem possible for it to attain a satisfactory condition only by development with reference to some consistent principle.

The inviolability of neutral territory has long been recognized as a principle of law, although in practice the principle has often been violated. As early as 1528, when a French and a Flemish ship engaged in battle at the mouth of the Thames and continued to fight

up the river to London where the French boarded the enemy, they were seized by the Lieutenant of the Tower and brought before the Council, Marsden, Select Pleas in the Court of Admiralty, II, lxxxii, note.

In the reign of Queen Mary (1553-1558), England and Scotland being at war, a Scottish vessel attacked and captured an English vessel in a Danish harbor and sold it. The buyer took it to an English port where its original owner caused it to be arrested by a process from the Court of Admiralty. The case having come before the Lords of the Council, they asked Dr. Lewes, Judge of the Admiralty, and his fellow civilians for a report on the law. They replied (Marsden, Law and Custom of the Sea, I, 179):

We havinge weyd this case, with the circumstances thereof, as behoved us, thinke that hit standeth with no lawe or reason that Smythe, havinge orderly come by the possession of his owne shippe, should be dryven to restore the same to Ramsey, the Scotishman that solliciteth this cause and claymeth to have boughte the same of the first takers. For all thoughe he were not the first spoyler, yet his title, beying dereyved from the same fyrste taker, is no better then theirs. And to them was the said shippe no good prise, for whate so ever the enemy dothe take from thenemye in the harborowe of a frende, that is no prise; for the proprietie therof is not altered, but remayneth still in lawe with the first owners.

In 1559, Dr. Lewes again wrote that it is unlawful "that in time of warre one enemy shall annoy the other within the territory or jurisdiction of any prince that is friendlie to both." Marsden, Ib. I, 180. The Scottish captures of English vessels in Danish harbors continued, and in 1562 the Judge of the Admiralty said, "The territory of an indifferent and meane prince is saufe conduct in lawe," Ib. I, 173. The principle was well debated before the Court of Session of Scotland in Robert Hunter v. The Baron Count de Bothmer (1764), Morison, Decisions, 11957.

If a capture is made in neutral waters, the "claim of territory" may be set up only by the neutral sovereign, The De Fortuyn (1760), Burrell, 175; The Purissima Conception (1805), 6 C. Robinson, 45; The Diligentia (1814), 1 Dodson, 404, 412; The Lilla (1862), 2 Sprague, 177; The Adela (1867), 6 Wallace, 266; The Bangor (1916), L. R. [1916] P. 181. This rule is based partly on the fact that an enemy could not appear as a claimant and partly on the fact that the violation of a country's neutrality was regarded as an offense against the country where the capture was made rather than against the owner whose property was taken. If, however, the owner is a neu tral or a citizen of the state of the captor, the first of these reasons disappears. Hence in The Sir William Peel (1867), 5 Wallace, 517, the court allowed a neutral claimant to set up the invalidity of a capture made in neutral waters, and decreed the restitution of the vessel, but refused to allow damages for its detention because of suspicious circumstances affecting the question of its neutral char

acter. This was one of the cases submitted to the British-American Claims Commission established by the Treaty of Washington, and that Commission, not being bound by the rules of the prize courts, allowed damages on the ground that the whole transaction was invalid because the capture was made in neutral waters. See Moore, Int. Arb. IV, 3935. For an instance of seizure in a foreign jurisdiction because of violation of municipal neutrality laws, see The Itata (1892), Moore, Int. Arb. III, 3067.

A capture made in the territorial waters of a neutral state is valid as between the captors and the enemy owner, and may be questioned only by the neutral state, The Adela (1867), 6 Wallace, 266; The Bangor (1916), L. R. [1916] P. 181. If the infringement of neutral territory is the result of a bona fide mistake, the neutral sovereign may claim the restitution of the vessel, but not damages, The Twee Gebroeders (1800), 3 C. Robinson, 162; The Vrow Anna Catherina (1803), 5 C. Robinson, 15. If the vessel is lost through bad weather while being taken to a port of the captor, the territorial sovereign may not claim its value in money, since the principle of redress is restitutio in integum, not reparation, The Valeria (1920), L. R. [1921] 1 A. C. 477. If the ship so captured has been requisitioned by the captor, the neutral government is not entitled to anything for its use, The Düsseldorf (1920), L. R. [1920] A. C. 1034. Vessels so requisitioned do not thereby become the property of the captor, since an order for requisition is not a judgment in rem. It confers merely a right to use, and for all purposes of prize jurisdiction such vessels are represented by their appraised value. Hence if they are lost after requisition, the sovereign making a claim of territory is entitled to their value, The Pellworm (1922), L. R. [1922] 1 A. C. 292.

It is well settled that a captor who takes his prize into a neutral port subjects it to the neutral jurisdiction, which may restore it to the original owner if there has been any infraction of neutrality on the part of the captor. See L'Invincible (1816), 1 Wheaton, 238; The Estrella (1819), 4 Wheat, 298; The Gran Para (1822), 7 Ib. 471; The Queen v. The Chesapeake and Cargo (Nova Scotia, 1864), 1 Oldright, 797. For other examples of the use of neutral territory by belligerents see "Neutral Port as Refuge to Escape Capture," Int. Law Sit. 1904, 79; "The Twenty-four Hour Rule," Ib. 1908, 37; "Sequestration of Prize," Ib. 53; "Asylum in Neutral Port," Ib. 1911, 9. On the use of neutral territory as an asylum see Oppenheim, II, 409-425; Moore, Digest, VII, 982. On the attempt of the French minister, Genet, to set up prize courts in the United States see Glass v. The Sloop Betsey (1794), 3 Dallas, 6.

The decision in the case of The Appam gave rise to much discussion. See notes in Harvard Law Review, XXX, 161; Columbia Law Review, XVII, 585; Michigan Law Review, XV, 487; Allin, "The Case of the Appam," Minnesota Law Review, I, 1; Coudert, "The Appam Case," Am. Jour. Int. Law, XI, 302; Dr. Arthur Burchard, "The Case of the