violated. This rule is founded upon the principle, that the neutral State alone has been injured by the capture, and that the hostile

tween 1861 and 1865, in the volumes of Diplomatic Correspondence of those years; especially the letters of Earl Russell to Mr. Adams, of Jan. 10, 1862, and Feb. 1, 1862, relating to the Tuscarora and Nashville. See also Earl Russell's speech of March 10, 1862, and his reply to the Liverpool ship-owners of July 5, 1862.

Violations of neutral waters by acts of war were almost the rule, rather than the exception, in the early wars and those arising out of the French Revolution. British cruisers seldom hesitated to continue their pursuit of any vessels into neutral territory, and even to complete their capture in neutral ports; and the cutting enemy's vessels out of neutral ports by boat expeditions was a common occurrence. In those days, it was rarely that a nation powerful enough to resent such an injury was not either an enemy or an ally of England. A memorable instance was that of the capture and destruction of four French vessels off Lagos, in Portugal, by a British fleet, which had pursued them there. Portugal made earnest remonstrances, and demanded restitution or indemnification, by which she could satisfy the claims of France upon her. Although the British Government treated Portugal with great courtesy, Mr. Pitt instructed his minister to avoid the direct issue, and to suggest the fact of hot pursuit; but privately assuring him that restitution or compensation would not be made and it was not. France alleged the failure of Portugal to insist on her rights against England as one of the justifications for her invasion. In 1793, the French frigate Ambuscade captured a British merchant-vessel (The George) in Delaware Bay, and took her to Charleston as a prize; and the United States Government, on complaint of the British Government, brought the subject to the attention of the French Minister, who caused the vessel to be restored. (Mr. Jefferson to M. Ternaut, May 15, 1793; opinion of the Attorney-General, May 14, 1793; and reply of M. Genet, of May 27, 1793. Waite's Am. State Papers, i. 69-80.) In 1805, the British Court of Admiralty restored an American vessel captured within American waters, near the Mississippi River, by a British privateer, and taken to England as a prize, on suspicion of unneutral character. The Anna, Rob. v. 373.

During the war of 1812-15 between the United States and Great Britain, the United States frigate Essex was attacked and compelled to surrender, while at anchor, dismasted, in Valparaiso, by the British frigate Phoebe and sloop-of-war Cherub. The sloop-of-war Levant, a recent prize to the United States frigate Constitution, was chased into Port Praya, and captured while at anchor there by vessels from the British fleet. The United States privateer General Armstrong, lying in the harbor of Fayal, was destroyed by vessels from the British fleet. The demand upon Portugal, by the United States, for indemnification, was ultimately left to the arbitration of Louis Napoleon, then President of the French Republic. He recognized the attack as a violation of neutral rights, but decided against indemnification, on the ground that the privateer did not demand protection from the Portuguese authorities at the time, but resisted by battle the unjust attack of the British vessels, instead of relying upon the neutral protection. This decision was not satisfactory to the United States, as they did not consider the fact on which it rested as established in proof. The principle of the decision must certainly be confined to cases where the vessel attacked has reason to believe that effectual protection can be seasonably afforded by the neutral, and makes a fair choice to take the chances of a combat rather than to appeal to neutral protec tion. Ex. Doc. 32d Cong. Senate, No. 24.

In the case of the schooner Caroline, that vessel had been employed by Canadian insurgents to carry munitions of war and persons taking part in the insurrection, from

claimant has no right to appear for the purpose of suggesting the invalidity of the capture. (a)209

the New York side of the Niagara River to the Canadian side. A Canadian armed force was sent to capture her, expecting to find her on the Canada side; but, learning that she was on the American side, they went over and destroyed her. In the correspondence between Mr. Webster and Lord Ashburton on the subject, Mr. Webster contended, that, for such an infringement of territorial rights, the British Government must show "a necessity of self-defence, instant, overwhelming, and leaving no choice of means and no moment for deliberation;" and it should further appear that the Canadian authorities, in acting under this exigence, "did nothing unreasonable or excessive." Lord Ashburton admitted the correctness of Mr. Webster's doctrine, contended that the circumstances came up to that statement of it, and "regretted that some explanation and apology for the occurrence was not immediately made." This was accepted by the United States as satisfactory. (Webster's Dip. and Off. Papers, 112-120. Webster's Works, vi. 255-262, 292-303.)

On the general doctrine of the rights and obligations of neutrals in giving asylum to belligerent cruisers within their waters, and belligerent acts done therein, see also Halleck's Intern. Law, 517-523, Kent's Comm. i. 118-125, Heffter, Europ. Völker. § 146-150, Hautefeuille, Droits des Nat. Neutr. tit. 6, ch. 1, § 1, De Cussy, liv. i. tit. 3, § 13, Ortolan, Règl. Intern. liv. ii. ch. 8, Manning's Law of Nations, 387, Martens, Précis du Droit des Gens, § 310.

On the occasion of a complaint by the British Government that a cruiser of the United States had captured a vessel in British waters, Mr. Seward, by direction of the President, addressed a note to the Secretary of the Navy, of Aug. 8, 1862, giving strict instructions to be communicated to the officers of the navy, “under no circumstances to seize any foreign vessel within waters of a friendly nation," and wrote to Lord Lyons, that, if any act of hostility or pursuit was committed within the maritime jurisdiction of Great Britain, the act would be disavowed, and ample redress

(a) Robinson's Adm. Rep. iii. note, Case of The Etrusco. The Anne, Wheaton's Rep. iii. 447.

[209 Although this phrase has been repeated by many text-writers, it can hardly be said to be simply a "technical rule of prize courts." It involves a direct and paramount question of right, and is settled upon principle. If a neutral vessel, which has violated neutrality so as to make herself liable to condemnation as prize, is captured as such at sea by a cruiser, and sent in for adjudication, the court will condemn her as prize, on the merits of the case. It is not a valid defence that the place of her arrest was the waters of some other neutral power. The breach of sovereign territorial right is a matter solely between the State making the capture and the State whose territory is entered upon. The demand made by the latter State may involve the restitution of the prize, and so, if complied with, operate in favor of the vessel in the hands of the court, whether neutral or enemy; but that is only an indirect effect. If the offended State does not demand restitution, or if the belligerent government refuses it, the prize will be condemned. It is not to be supposed that even the demand of the neutral State would operate directly a restitution of the prize, by the court, against the will or without the consent of the sovereignty under which the court sits. In short, the question is one of international diplomacy, and not a rule of decision in prize law between the captor and the claimant. (Judge Story, in The Anne, Wheaton's Rep. iii. 435. Judge Sprague, in The Lilla, Sprague's Decisions, ii.; and Law Reporter, xxv. 92.)]—D.

Restitution

tral State of

in violation

of its neutrality.

§ 431. Where a capture of enemy's property is made by the neu- within neutral territory, or by armaments unlawfully fitproperty ted out within the same, it is the right as well as the captured within its duty of the neutral State, where the property thus taken jurisdiction, or otherwise 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. Traces of the exercise of such a jurisdiction are found at a very early period in the writings of Sir Leoline Jenkins, who was Judge of the English High Court of Admiralty in the reigns of Charles II. and James II. In a letter to the king in council, dated October 11, 1675, relating to a French privateer seized at Harwich with her prize, (a Hamburg vessel bound to London,) Sir Leoline states several questions arising in the case, among which was, "Whether this Hamburger, being taken within one of your Majesty's chambers, and being bound for one of your ports, ought not to be set free by your Majesty's authority, notwithstanding he were, if taken upon the high seas out of those chambers, a lawful prize. I do humbly conceive he ought to be set free, upon a full and clear proof that he was within one of the king's chambers at would be promptly given. (Mr. Seward to Lord Lyons, June 16, 1863: Dip. Corr. 1863, p. 581.)

In October, 1864, the armed steamer Florida, which, under rebel colors and command, had been depredating on American commerce, sought refuge in Bahia, and was permitted to remain forty-eight hours, for necessary repairs and supplies. The United States steamer Wachusett, which was lying in Bahia, took out the Florida by night, from under the guns of a Brazilian corvette which had her in charge, and sent her as prize to the United States. The Brazilian Government at once remonstrated against this violation of its territory, demanding explanation and reparation. No mode of reparation was alluded to. Mr. Seward replied, condemning the act as a violation of territorial rights of Brazil admitting of no justification. In reparation, he stated that the commander of the Wachusett would be subjected to trial by court martial; and that the President would dismiss the United States Consul at Bahia, who had lent active aid in the capture. As to the crew of the Florida, he said, that, although they were liable as pirates under our law, and those who were citizens as traitors, yet, as their arrest was in violation of the sovereign rights of Brazil, they would be permitted to leave the jurisdiction of the United States. The Florida herself had been sunk by a collision in Hampton Roads, the circumstances of which had been inquired into, and were held to be an accident for which the United States was not responsible. With this reply, the Brazilian Government expressed itself satisfied. In this correspondence, Mr. Seward took care to protest against the admission of vessels of war, under the rebel colors, to rights of belligerents by Brazil; and to deny that the Florida, even if the rebels were to be treated as lawful belligerents, was a proper cruiser in that service, under the circumstances of her English building and outfitting. Correspondence of Mr. Seward and Señ. Da Silva, Dec. 12 and 26, 1864.] — D.

the time of the seizure, which he, in his first memorial, sets forth to have been eight leagues at sea, over against Harwich. King James (of blessed memory) his direction, by proclamation, March 2, 1604, being that all officers and subjects, by sea and land, shall rescue and succor all merchants and others, as shall fall within the danger of such as shall await the coasts, in so near places to the hindrance of trade outward and homeward; and all foreign ships, when they are within the king's chambers, being understood to be within the places intended in those directions, must be in safety and indemnity, or else when they are surprised must be restored to it, otherwise they have not the protection worthy of your Majesty, and of the ancient reputation of those places. But this being a point not lately settled by any determination, (that I know of, in case where the king's chambers precisely, and under that name, came in question,) is of that importance as to deserve your Majesty's declaration and assertion of that right of the crown by an act of State in council, your Majesty's coasts being now so much infested with foreign men of war, that there will be frequent use of such a decision." (a)

Whatever doubts there may be as to the extent of the territorial jurisdiction thus asserted, as entitled to the neutral immunity, there can be none as to the sense entertained by this eminent civilian respecting the right and the duty of the neutral sovereign to make restitution where his territory is violated.

§ 432. When the maritime war commenced in Europe, Extent of in 1793, the American government, which had determined the neutral jurisdiction to remain neutral, found it necessary to define the extent along the coasts and of the line of territorial protection claimed by the United within the bays and States on their coasts, for the purpose of giving effect to rivers. their neutral rights and duties. It was stated on this occasion, that governments and writers on public law had been much divided in opinion as to the distance from the sea-coast within which a neutral nation might reasonably claim a right to prohibit the exercise of hostilities. The character of the coast of the United States, remarkable in considerable parts of it for admitting no vessel of size to pass near the shore, it was thought would entitle them in reason to as broad a margin of protected navigation as any nation whatever. The government, however, did not propose, at that

(a) Life and Works of Sir L. Jenkins, ii. 727.

time, and without amicable communications with the foreign powers interested in that navigation, to fix on the distance to which they might ultimately insist on the right of protection. President Washington gave instructions to the executive officers to consider it as restrained, for the present, to the distance of one sea league, or three geographical miles, from the sea-shores. This distance, it was supposed, could admit of no opposition, being recognized by treaties between the United States, and some of the powers with whom they were connected in commercial intercourse, and not being more extensive than was claimed by any of them on their own coasts. As to the bays and rivers, they had always been considered as portions of the territory, both under the laws of the former colonial government and of the present union, and their immunity from belligerent operations was sanctioned by the general law and usage of nations. The 25th article of the treaty of 1794, between Great Britain and the United States, stipulated that "neither of the said parties shall permit the ships or goods belonging to the citizens or subjects of the other, to be taken within cannon-shot of the coast, nor in any of the bays, ports, or rivers, of their territories, by ships of war, or others, having commissions from any prince, republic, or state whatever.210 But in case it should so happen, the party whose territorial rights shall thus have been violated, shall use his utmost endeavors to obtain from the offending party full and ample satisfaction for the vessel or vessels so taken, whether the same be vessels of war or merchant vessels." Previously to this treaty with Great Britain, the United States were bound by treaties with three of the belligerent nations, (France, Prussia, and Holland,) to protect and defend, “by all the means in their power," the vessels and effects of those nations in their ports or waters, or on the seas near their shores, and to recover and restore the same to the right owner when taken from them. But they were not bound to make compensation if all the means in their power were used, and failed in their effect. Though they had, when the war commenced, no similar treaty with Great Britain, it was the President's opinion that they should apply to

[210 This article of the treaty expired, by its own limitation, in twelve years, and has not been repeated in later treaties. As to the extent of territorial waters, see note 105, ante, on Territorial Waters; note 113, ante, on National Appropriation of Open Seas; and note 142, ante, on The North-eastern Fisheries. As to Delaware Bay, see the opinion of the Attorney-General, May 14, 1793, Waite's Am. State Papers, i. 72.]—D.