Sec. 8. Asylum in neutral territory.

the same places, except that merchant vessels are suffered to take military stores on board, which is forbidden generally, and ought to be forbidden, to ships of war.

"The general practice of nations, dictated perhaps by comity, has hitherto permitted cruisers to bring their prizes into neutral ports. This is not obligatory on neutrals, and sound policy demands that it be prohibited."*

The present rule is for neutral nations to admit vessels of war with their prizes only in case of stress of weather, or for necessary supplies or repairs, and their stay in the neutral port is limited to twenty-four hours, unless a longer time is actually required. The neutrality proclamation of Great Britain in 1870 prohibited the armed vessels of either party from carrying prizes into British waters, without any exceptions. The same proclamation limited the stay of vessels of war in British ports or waters to twenty-four hours, except in cases of necessity, which was to be determined by the authorities of the port.

Asylum is allowed within neutral territory and waters to a defeated or fugitive belligerent force, and the victor must stop his pursuit at the borders. The conditions, however, according to which refugees shall be received are not absolutely settled. In the case of troops fleeing across the borders, justice requires that they shall be protected, not as bodies of soldiers with arms in their hands, but as individual subjects of a friendly State; they are, we believe, in practice generally disarmed, and supported in their place of shelter at the expense of their sovereign. The other course would be unfriendly, as protected soldiers might issue forth from a friend's territory all ready for battle; and would also tend to convert the neutral soil into a theatre of In the case of ships of war running into neutral waters in order to escape from an enemy, to demand that they shall either be disarmed, like fugitive troops, or return to the high seas, seems to be a harsh measure and unauthorized by the usages of nations..... The analogy from the practice of disarming fugitive troops does not hold here. If the ship is driven out at once, it goes where a superior force is waiting for it; if it remains disarmed, the expense and inconvenience are great."§

war.

*Woolsey, Sec. 159. Hall, App. IX, p. 716. States.

† Comp. Sec. 2, also Sec. 6, "Privateering." The same rule was adopted by the United ? Woolsey, Sec. 158.

hours rule.

Mr. Bernard says, in his "Historical Account of the Neutrality Twenty-four of Great Britain": "The rule that when hostile ships meet in a neutral harbor the local authority may prevent one from sailing simultaneously with or immediately after the other will not be found in all books on International Law. It is, however, a convenient and reasonable rule; it has gained, I think, sufficient foundation in usage; and the interval of twenty-four hours adopted during the last century in a few treaties and in some marine ordinances has been commonly accepted as a reasonable and convenient interval."*

of neutrals.

A neutral nation has the right to demand of belligerents that Sec. 9. Rights its sovereignty be respected and that no portion of its territory be used for any purposes of war. It claims from all belligerents the same protection for its citizens and their property, engaged in operations lawful during war, to which they are entitled in time of peace.

"The rights of war can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. Hence it follows that hostilities cannot lawfully be exercised within the territorial jurisdiction of the neutral State, which is the common friend of both parties."†

diction.

"The maritime territory of every State extends to the ports, bays, harbors, mouths of rivers, and adjacent parts of the sea enclosed by headlands, belonging to the same State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannonshot will reach from the shore, along all the coasts of the State. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation." "The maritime dominion stops at the place where continuous Maritime jurispossession ceases, where the people who own the shore can no longer exercise power, at the point from whence they cannot exclude strangers, and finally, at the place where, the presence of foreigners being no longer dangerous to their safety, they no longer have an interest in excluding them. The point at which these three causes, which render the sea susceptible of private possession, cease is the same for all. It is the limit of the power which is represented by instruments of war. All the space through which projectiles pass, protected and defended by these † Lawrence's Wheaton, p. 713. Ibid. p. 320.

* Page 273.

warlike instruments, is territorial and subject to the dominion of the power that controls the shore. The greatest reach of a ball fired from a cannon on the land is, then, really the limit of the territorial waters. The sea-coast does not present one straight regular line, but is, on the contrary, almost always intersected by bays, capes, etc. If the maritime domain must always be measured from every point of the shore, great inconveniences would result. It has therefore been agreed in practice to draw an imaginary line from one promontory to another, and to take this line as the point of departure for the reach of the cannon. This mode, adopted by almost all nations, is only applicable to small bays, and not to gulfs of great extent, as the Gulf of Gascony, or the Gulf of Lyons, which are in reality parts of the open sea, and of which it is impossible to deny the complete assimilation with the great ocean."*

It has been suggested by Mr. Lawrence that, with the increased range of modern artillery, the territorial jurisdiction over the sea has been correspondingly increased. This would follow from Hautefeuille's derivation of territoriality, but, as yet, the marine league is the extent of maritime jurisdiction that is claimed by nations.†

In consequence of reports reaching the government at Washington, in August, 1862, that the United States steamer Adirondack had chased a blockade-runner within the marine league of the island of New Providence in the Bahamas, the Secretary of State wrote to Mr. Welles, on August 14: "The President desires that you ascertain the truth of this fact with as little delay as possible, since, if it be true, the commander of the Adirondack has committed an inexcusable violation of the law of nations, for which acknowledgment and reparation ought to be promptly made. To guard against such occurrence hereafter, the President desires that you at once give notice to all commanders of American vessels of war that this government adheres to, recognizes, and insists upon the principle that the maritime jurisdiction of every nation covers a full marine league from the coast, and that acts of hostility or of authority within a marine league of any foreign country by any naval officer of the United States are strictly forbidden, and will bring upon such officer the displeasure of his government."

*Hautefeuille, Vol. I, p. 89.

† Note to Wheaton, p. 321.

tures made territory.

in neutral

"Not only are all captures made by the belligerent cruisers Sec. 10. Capwithin the limits of this jurisdiction absolutely illegal and void, but captures made by armed vessels stationed in a bay or river, or in the mouth of a river, or in the harbor of a neutral State, for the purpose of exercising the rights of war from this station, are also invalid.

"So, also, where a belligerent ship, lying within the neutral territory, made a capture with her boats out of the neutral territory, the capture was held to be invalid; for though the hostile force employed was applied to the captured vessel lying out of the territory, yet no such use of a neutral territory for the purposes of war is to be permitted. This prohibition is not extended to remote uses, such as procuring provisions and refreshments, which the law of nations universally tolerates; but no proximate acts of war are in any manner to be allowed to originate on neutral ground."*

"If it be not admissible for an armed vessel of a belligerent to take advantage of neutral waters, in the manner mentioned in the text, as against enemy's vessels, it is, à fortiori, a violation of neutrality thus to use them, for the purpose of intercepting the merchant vessels of the same or of another neutral State, under suspicion of having contraband on board, or for any other purpose which might make them liable to the belligerent right of search."+

"There is no exception to the rule that every voluntary entrance into the neutral territory with hostile purposes is absolutely unlawful. When the fact is established,' says Sir W. Scott, 'it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding that it may actually belong to the enemy.'

"Though it is the duty of the captor's country to make restitution of the property thus captured within the territorial jurisdiction of the neutral State, yet it is a technical rule of the prize courts to restore to the individual claimant, in such case, only on the application of the neutral government whose territory has thus been violated. This rule is founded upon the principle that the neutral State alone has been injured by the capture, and that the hostile claimant has no right to appear for the purpose of suggesting the invalidity of the capture.

*Lawrence's Wheaton, pp. 715-16.

↑ Ibid. p. 716, n.

Duty of the neu

tral to restore

"Where a capture of enemy's property is made within the illegal prizes. neutral territory, or by armaments unlawfully fitted out within the same, it is the right as well as the duty of the neutral State, when the property thus taken comes into its possession, to restore it to the original owners. This restitution is generally made through the agency of the courts of admiralty and maritime jurisdiction.

"It has been judicially determined that the jurisdiction to inquire into the validity of captures made in violation of the neutral immunity will be exercised only for the purpose of restoring the specific property, when voluntarily brought within the territory, and does not extend to the infliction of vindictive damages, as in ordinary cases of maritime injuries. And it seems to be doubtful whether this jurisdiction will be exercised when the property has once been carried infra præsidia of the captor's country, and there regularly condemned in a competent court of prize. However this may be in cases where the property has come into the hands of a bona fide purchaser, without notice of the unlawfulness of the capture, it has been determined that the neutral Court of Admiralty will restore it to the original owner, where it is found in the hands of the captor himself, claiming under the sentence of condemnation. But the illegal equipment will not affect the validity of a capture made after the cruise to which the outfit has been applied is actually terminated."*

Mr. Hall remarks on the above quotation from Wheaton: "Ortolan justly urges that as the sovereign rights of a nation cannot be touched by the decision of a foreign tribunal, the consequences of such a decision cannot be binding upon it; and it may be put still more generally that nothing performed mero motu by a wrong-doer in confirmation of his wrongful act can affect the rights of others."†

"If such a prize is brought into any of the neutral's ports, he is authorized to seize and restore it. If it be carried into a port of another country, he has a right to demand its restoration, and the prize court of the belligerent is bound to respect the objection. If the neutral fails to exercise his rights in these respects, the government of the vessel which has been thus captured may complain or even retaliate. The wrong-doing vessel may † Hall, p. 546.

*Lawrence's Wheaton, pp. 721-5.