Exception.

The "Anne," 3 Wheaton, 435.-The Court said: "There is one other point in the case which, if all other difficulties were removed, would be decisive against the claimant. It is a fact that the captured ship first commenced hostilities against the privateer. This is admitted on all sides: and it is no excuse to assert that it was done under a mistake of the national character of the privateer, even if this were entirely made out in the evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in self-defence. The privateer had an equal title with herself to the neutral protection, and was in no default in approaching the coast without showing her national character. It was a violation of that neutrality which the captured ship was bound to observe, to commence hostilities for any purpose in these waters; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign."

"La Amistad de Rues," 5 Wheaton, 385.-In this case it was held that a civil court of a neutral country cannot adjudicate upon the validity of a capture jure belli, as between the captor and the prize. Its only function is to vindicate the offended sovereignty of its own country, when the capture was made in violation of the neutrality of the country.

The "Alerta," 9 Cranch, 359.-In this case the court said: "The general rule is undeniable, that the trial of captures made on the high seas, jure belli, by a duly commissioned vessel of war, whether from an enemy or a neutral, belongs exclusively to the courts of that nation to which the captor belongs. To this rule there are exceptions. which are as firmly established as the rule itself. If the capture be made within the territorial limits of a neutral country into which the prize is brought, or by a privateer which had been illegally equipped in such neutral country, the prize courts of such neutral country not only possess the power, but it is their duty to restore the property so illegally captured to the owner. This is necessary to the vindication of their own neutrality."

See also The Nancy, 4 Fed. Cases, No. 1898; The Betty Cathcart, 17 Fed. Cases, No. 9742; Talbot v. Jansen, 3 Dallas, 133; Glass r. The Betscy, id.. 6: The Invincible. 1 Wheaton, 238; La Conception, 6 Wheaton, 235; The Santissima Trinidad, 7 Wheaton, 283; The Gran Para, 7 Wheaton, 471; The Arrogante Barcelones, 7 Wheaton, 496.

The Florida, 101 U. S., 37.-The court said: "A capture in neutral waters is valid as between belligerents. Neither a belligerent owner nor an individual enemy owner can be heard to complain. But the neutral sovereign whose territory has been violated may interpose and demand reparation, and is entitled to have the captured property restored."

See also The Sir William Peel, 5 Wall., 517; The Anne, 3 Wheat., 435; and The Adela, 6 Wall., 266.

PRIZE COURT, IN NEUTRAL TERRITORY OR WATERS, FORBIDDEN.

A Prize Court cannot be set up by a belligerent on neutral territory or on a vessel in neutral waters.-Hague Convention XIII, 1907, Article 4.

But a prize court of the captors cannot sit in a neutral territory, nor can its authority be delegated to any tribunal sitting in neutral territory. The reason of this rule is obvious. Neutral ports are not intended to be auxilliary to the operations of the belligerents, and it is not only improper but dangerous to make them the theatre of hostile proceedings. A sentence of condemnation by a belligerent prize court in a neutral port is, therefore, considered insufficient to transfer the ownership of vessels or goods captured in war, and carried into such port for adjudication.

Halleck, p. 757.

Nor can he [a neutral state] allow his courts to be employed in deciding upon the validity of captures made by belligerent vessels. Woolsey, p. 275.

Even when a prize lies in a neutral port, the belligerent power whose cruisers have captured her cannot set up a court there to try the capture. The exercise of jurisdiction being a right attached to Sovereignty, to attempt it anywhere without the permission of the territorial sovereign would be a usurpation, and for that sovereign to grant the permission would be an unneutral loan of his sovereignty to the belligerent.

Westlake, vol. 2, p. 244.

Among the uses of its territory a neutral is bound to prevent must be reckoned the setting up in it of a belligerent prize court.

Lawrence, p. 635.

*

During the eighteenth century it was not considered illegitimate on the part of neutrals to allow the setting up of Prize Courts on their territory But since in 1793 the United States of America disorganized the French Prize Courts set up by the French envoy Genêt on her territory, it became recognised that such Prize Courts are inconsistent with the duty of impartiality incumbent upon a neutral, and article 4 of Convention XIII. enacts this formerly customary rule.

Oppenheim, vol. 2, p. 395.

It has long been universally recognised that the duty of impartiality must prevent a neutral from permitting a belligerent to set up Prize Courts on neutral territory. The intention of a belligerent in

setting up a court on neutral territory can only be to facilitate the plundering by his men-of-war of the commerce of the enemy. A neutral tolerating such Prize Courts would, therefore, indirectly assist the belligerent in his naval operations.

Oppenheim, vol. 2, p. 395.

The privateers fitted out in the United States [in 1793], under the auspices of the French Minister and French consuls, took many prizes, and brought them into ports of the United States. In these ports, the French consuls undertook to hold prize courts, authorized thereto by the French Republic, and to condemn and sell the prizes. The British Minister, Mr. Hammond, remonstrated. M. Genet claimed the right under the law of nations and the Treaty of Commerce. The claim was denied by the United States Government, in a letter by the Secretary of State, Mr. Jefferson; and the ground was taken, that, of national right, all judicial functions within the territory of the United States must be exercised only by the government of the United States, and that such right had not been impaired by any treaty with France. This, with the decision of the Supreme Court in The Betsey, put an end to French consular courts of prize in the United States.

Note 215, Dana's Wheaton; 1 Am. State Papers, p. 144; 3 Dallas, 6.

** *

under no circumstances can proceedings for Adjudication [on a prize] be instituted in a Neutral Country.

Holland, p. 85.

Article 4, Hague Convention XIII, 1907, is substantially identical with section 124, Austro-Hungarian Manual, 1913.

The "Flad Oyen," 1 C. Rob., 135.-In determining whether a belligerent could set up a Prize Court in neutral territory, Lord Stowell repudiated the condemnation, by the French Consul in Bergen, of an English prize vessel carried there by a French privateer.

Donaldson v. Thompson, 1 Camp., 429.-The court said: "The sentence was pronounced by a belligerent on neutral territory, and is therefore void."

Glass v. Sloop" Betsey," 3 Dallas, 6.-In this case it was held that no foreign power can of right institute or erect any court in the United States, except such as may be warranted by treaties, and that the admiralty jurisdiction which has been exercised in the United States by French consuls, not being so warranted, was not of right and could not be recognized.

Prize court may be set up in territory of an ally.

See Cady v. Bovill. 2 East., 473; The Harmony, 2 C. Rob., 210n; The Adelaide, id.; and The Betsy Kruger, id.

USE OF NEUTRAL WATERS AS BASE OF NAVAL OPERATIONS FORBIDDEN-ESPECIALLY AS TO APPARATUS OF COMMUNICATION.

Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea.-Hague Convention XIII, 1907, Article 5.

Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other,

Treaty of Washington, for the arbitration of the "Alabama Claims," concluded between the United States and Great Britain, May 8. 1871, Article VI.

Likewise, the neutral State should not permit nor suffer one of the belligerents to use its ports or waters as a naval base of operations against the other.

*

Institute, 1875, p. 13.

*

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.

Kent, vol. 1, p. 126.

The neutral border must not be used as a shelter for 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.

Kent, vol. 1, p. 127-128.

Not only are all captures made by the belligerent cruisers within the limits of this jurisdiction [the maritime territorial jurisdiction of a neutral State] 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. * no proximate acts of war are in any manner to be allowed to originate on neutral ground.

Dana's Wheaton, pp. 520, 521.

* *

* nor can neutral ports or waters be made a base of operations. Cruising within those limits, to prevent entrance or exit by

an enemy, is prohibited, and all forms of using the asylum of neutral waters for hostile acts.

Note 208, Dana's Wheaton.

Persons in the service of the insurgent colonies [in South America] seized upon two places near the American coast, but beyond our jurisdiction, and not within the certain limits of any responsible power (Amelia Island and Galveston), and made them bases of naval operations against Spain and Portugal. President Madison having called the attention of Congress to this state of things, Congress recommended the suppression of these establishments, and the President took the extreme step of breaking them up by a military force, apparently on the ground that they were a kind of international nuisance, which it was in our power to suppress without a serious violation of territoriality of any responsible sovereign.

*

Note 215, Dana's Wheaton.

* * *

**it is a violation of neutrality for a neutral state to open harbors for hostile enterprises; or to allow the presence of any individual or vessel pertaining to a belligerent state within his territory, when believed to be stationed there for the purpose of carrying out a hostile undertaking; *

Woolsey, p. 275.

*

Much the larger number of cases in which the conduct of a neutral forms the subject of complaint is when a belligerent uses the safety of neutral territory to prepare the means of ultimate hostility against his enemy, as by fitting out expeditions in it against a distant objective point, or by rendering it a general base of operations. In many such cases the limits of permissible action on the part of the belligerent, and of permissible indifference on the part of the neutral, have not yet been settled. Generally the neutral sovereignty is only violated constructively. The acts done by the offending belligerent do not involve force, and need not entail any interference with the supreme rights of the state in which they are performed. They may be, and often are, innocent as regards the neutral except in so far as they endanger the quiescence of his attitude towards the injured belligerent and their true quality may be, and often is, perceptible only by their results.

At the root of this class of cases lies the principle that a neutral state cannot allow its territory to become a scene of hostile operations to the disadvantage of one of two belligerents. The extension of this principle to acts of hostility taking their commencement in neutral ground and leading to immediate violence, which was made by Lord Stowell, is equally applicable to acts the completion of which is more remote in point of time or place, but which have been as fully prepared within the neutral territory. All such acts must

be offences against the neutral on the part of the belligerent performing them; and if knowingly permitted by the neutral they are offences on his part against the belligerent for whose injury they are intended. Ordinarily their identification presents little difficulty. There could be no question as to the nature of the filibustering expeditions from the United States, of those which fed the Cretan insurrection of 1867, or of the Fenian incursions into Canada; and there