Restitution

tral State of

in violation

of its neu

§ 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 trality. 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 Majes ty'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. Cor respondence 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 civil-、 ian respecting the right and the duty of the neutral sovereign to make restitution where his territory is violated.

the neutral

along the

coasts and

bays and

§ 432. When the maritime war commenced in Europe, Extent of in 1793, the American government, which had determined jurisdiction to remain neutral, found it necessary to define the extent of the line of territorial protection claimed by the United within the 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.

that nation the same rule which, under this article, was to govern the others above mentioned; and even extend it to captures made on the high seas, and brought into the American ports, if made by vessels which had been armed within them. In the constitutional arrangement of the different authorities of the American Federal Union, doubts were at first entertained whether it belonged to the executive government, or the judiciary department, to perform the duty of inquiring into captures made within the neutral territory, or by armed vessels originally equipped or the force of which had been augmented within the same, and of making restitution to the injured party. But it has been long since settled that this duty appropriately belongs to the federal tribunals, acting as courts of admiralty and maritime jurisdiction. (a)

Limita

tions of the

to restore in cases of

illegal cap

§ 433. It has been judicially determined that this peculiar jurisdiction to inquire into the validity of cap- neutral tures made in violation of the neutral immunity, will be jurisdiction exercised only for the purpose of restoring the specific property, when voluntarily brought within the territory, ture. 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 where the property has been once 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 (a)211

§ 434. An opinion is expressed by some text-writers, Right of that belligerent cruisers, not only are entitled to seek an neutral

asylum in

(a) Mr. Jefferson's Letter to M. Genet, Nov. 8, 1793: Waite's State Papers, vi. 195. Opinion of the Attorney-General on the capture of the British ship Grange, May 14, 1793, Ibid. i. 75. Mr. Jefferson's Letter to Mr. Hammond, Sept. 5, 1793: Waite's State Papers, i. 165. Wheaton's Reports, iv. 65, note a.

(a) The Amistad de Rues, Wheaton's Rep. v. 385. La Nereyda, Ibid. viii. 108. The Fanny, Ibid. ix. 658. The Arrogante Barcelones, Ibid. vii. 519. The Santissima Trinidad, Ibid. 283.

[211 See note 215, infrà, on Neutrality or Foreign Enlistment Acts.]-D.

ports de

of the neutral State.

asylum and hospitality in neutral ports, but have a right

But

pendent on the consent to bring in and sell their prizes within those ports. there seems to be nothing in the established principles of public law which can prevent the neutral State from withholding the exercise of this privilege impartially from all the belligerent powers; or even from granting it to one of them, and refusing it to others, where stipulated by treaties existing previous to the war.212 The usage of nations, as testified in their marine ordinances, sufficiently shows that this is a rightful exercise of the sovereign authority which every State possesses, to regulate the police of its own seaports, and to preserve the public peace within its own territory. But the absence of a positive prohibition implies a permission to enter the neutral ports for these purposes. (a) 213

in what it

war.

Neutral § 435. Vattel states that the impartiality, which a neuimpartiality, tral nation ought to observe between the belligerent parconsists. ties, consists of two points. 1. To give no assistance where there is no previous stipulation to give it; nor voluntarily to furnish troops, arms, ammunition, or any thing of direct use in "I do not say to give assistance equally, but to give no assistance for it would be absurd that a State should assist at the same time two enemies. And besides, it would be impossible to do it with equality: the same things, the like number of troops, the like quantity of arms, of munitions, &c., furnished under different circumstances, are no longer equivalent succors. 2. In whatever

[212 A nation cannot expect to maintain its neutrality long, if its treaties put it in that situation in a great maritime war, to the disadvantage of any leading maritime power. See note 145, ante.] — D.

(a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 15. Vattel, liv. iii. ch. 7, § 182 Valin, Comm. sur l'Ordonn. de la Marine, tom. ii. p. 272.

[218 Halleck's Intern. Law, 523; Heffter, Europ. Völker. §§ 146–150; Hautefeuille, Droits des Nat. Neutr. tit. 6, ch. 2; Manning's Law of Nations, 387; and the opinion of Attorney-General Cushing, April 28, 1855 (Opinions of Attorneys-General, vii. 123), in the case of the British ship of war Sitka. This opinion presents all the learning on the subject; and the conclusion was reached, upon which the President acted, that, in the absence of any prohibition, a belligerent ship-of-war of a friendly nation might visit our ports with her prizes, and remain there a reasonable time for the ordinary purposes of temporary repairs and supplies, and her commander would not be subject to obey a writ of habeas corpus, issued by a local tribunal to inquire into the lawfulness of the custody of her prisoners of war on board.

The aversion to recognizing privateering in war has led to rules less favorable to privateers than to regular cruisers. (Hautefeuille, tom. i. p. 380.) In the late American war, though the United States employed no privateers, the neutral maritime powers prohibited such vessels their ports, except as a refuge from stress of weather.]—D.