Part IV. 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 to be 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 (o). § 428a. Case of The In 1863, during the civil war, the United States merchant-ship Chesapeake, while on a voyage from New York to Portland, was seized upon by a number of her passengers, who killed and wounded some of the crew, and put the rest on shore. They ran the vessel to several small ports in Nova Scotia, representing her as the Confederate warsteamer Retribution, and finally abandoned her off Sambro, a port of Nova Scotia. The Chesapeake was there found and captured by a United States ship-of-war, and taken to Halifax. There were then on board two British subjects who had been employed by the passengers as engineers; and Wade, one of the ringleaders, was discovered on board a small schooner lying near where The Chesapeake had been abandoned. The three men were made prisoners, and conveyed to Halifax. In the discussion resulting from this case, the United States disclaimed any intention of exercising jurisdiction in the waters of Nova Scotia, and explained that their naval authorities had acted "under the influence of a patriotic and commendable zeal to bring to punishment outlaws who had offended against the peace and dignity of both countries" (p). It was admitted that these acts were, in strictness of law, "a violation of the law of nations, and of the friendly relations existing between the two countries." This was deemed a satisfactory explanation by Her Majesty's Government. England was entitled to look upon this capture as, prima facie, a belligerent act. The civil war was flagrant at the time, and The Chesapeake had been originally seized by persons representing themselves as acting on behalf of the Confederates. As a matter of fact, they failed to produce any valid belligerent commission; but this did not give the United States any right to capture the ship in British waters. Beyond seizing the vessel, the passengers had committed no piratical acts. They were thus entitled to prove themselves belligerents if they could, and their failure to do this laid them open to the charge of piracy. The United States demanded the extradition of the persons captured with the vessel, but the British government insisted on their being first released and set upon British soil, and they managed to escape before they could be re-arrested. The ship itself was restored to the owners. Some of the parties concerned afterwards (0) The Anna, 5 C. Rob. 373; The Twee Gebroeders, July, 1800, 3 ibid. 162. (p) Mr. Seward to Lord Lyons, 9th Jan. 1864. 581 appeared in Canada, and were apprehended, but the Court decided Chap. III. that they could not be extradited (9). § 428b. In 1864, a most flagrant violation of neutral jurisdiction was perpe- Capture of trated by a United States ship-of-war. The Florida, the well-known The Florida. Confederate cruiser, entered the port of Bahia, in Brazil, to obtain provisions and coals, and to effect some necessary repairs; and while there The Wachusett, a Federal man-of-war, also entered the port. The Brazilian authorities took all necessary measures to prevent a conflict, and assigned a berth in the harbour to each ship. During the night, and while a large part of The Florida's crew were on shore, The Wachusett steamed across the harbour, fastened a cable to The Florida, towed her out to sea, and escaped from the pursuit of the local forces. The Brazilian government demanded an explanation and reparation. Mr. Seward, in a somewhat haughty reply, admitted "that the President would disavow and regret the proceedings at Bahia," but he persisted in maintaining that The Florida was a pirate, and "that the harbouring and supplying piratical ships and their crews in Brazilian ports were wrongs and injuries for which Brazil justly owes reparation to the United States." The captured crew of The Florida were, however, set at liberty, and the vessel herself sank in Hampton Roads by "an unforeseen accident which cast no responsibility upon the United States "(r). The absurdity of calling The Florida a pirate at that period of the war is manifest; but had she been the most atrocious of pirates, her capture under such circumstances would have been wholly unjustifiable. $429. chased into territory, Although the immunity of the neutral territory from Vessels the exercise of any act of hostility is generally admitted, the neutral yet an exception to it has been attempted to be raised in and there the case of a hostile vessel met on the high seas and captured. pursued; which it is said may, in the pursuit, be chased within the limits of a neutral territory. The only text writer of authority who has maintained this anomalous principle is Bynkershoek (8). He admits that he had never seen it mentioned in the writings of the public jurists, or among any of the European nations, the Dutch only excepted; thus leaving the inference open, that even if reasonable in itself, such a practice never rested (2) See Parl. Papers, 1876, N. America (No. 10). Wheaton, by Dana, note 207. (r) Parl. Papers, 1873, N. America (No. 2), pp. 176-178. (s) Quæst. Jur. Pub. lib. i. cap. 8. This opinion of Bynkershoek, in which RIGHTS OF WAR AS TO NEUTRALS. Part IV. upon authority, nor was sanctioned by general usage. The extreme caution too, with which he guards this license to belligerents, can hardly be reconciled with the practical exercise of it; for how is an enemy to be pursued in a hostile manner within the jurisdiction of a friendly power, without imminent danger of injuring the subjects and property of the latter? Dum fervet opus—in the heat and animation excited against the flying foe, there is too much reason to presume that little regard will be paid to the consequences that may ensue to the neutral. There is, then, no exception to the rule, that every voluntary entrance into 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" (t). $430. Claim on the ground of violation of neutral terri 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 sanctioned by rule of the Prize Courts to restore to the individual tory must be the neutral State. § 430a. Capture in neutral waters. claimant, in such a case, only on the application of the neutral government whose territory has been thus 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 (u). This can hardly be called a technical rule, and Mr. Wheaton himself admits it to be founded upon principle. The Supreme Court of the United States has recently determined that neither an enemy, nor a neutral acting the part of an enemy, can demand restitution on the sole ground of capture in neutral waters. This fact alone will not prevent condemnation if done without intent to violate neutral jurisdiction (x). Lord Stowell also said long ago, "It is a known principle of this Court that the privilege of territory will not itself enure to the protection of property, unless the State from which that protection is due steps forward to assert the right " (y). (t) The Vrow Anna Catharina, 5 C. Rob. 15. (u) Case of The Etrusco, 3 C. Rob. note; The Anne, 3 Wheaton, 447. (x) The Adela, 6 Wallace, 266. (y) The Purissima Concepcion, 6 C. Rob. 45. See, also, The Sir William Peel, 5 Wallace, 585. Restitution property within its or otherwise of its neu Captures Chambers. Where a capture of enemy's property is made within Chap. III. neutral territory, or by armaments unlawfully fitted out § 431. within the same, it is the right as well as the duty of the by the neutral neutral State, where the property thus taken comes into State of its possession, to restore it to the original owners. This captured restitution is generally made through the agency of the jurisdiction, courts of admiralty and maritime jurisdiction. Traces in violation of the exercise of such a jurisdiction are found at a very trality. early period in the writings of Sir Leoline Jenkins, within the who was Judge of the English High Court of Admiralty King's 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 Hamburgher, 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 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 2nd, 1604, being that all officers and subjects, by sea and land, shall rescue and succour all merchants and others, as shall fall within the danger of such as shall await the coasts, in so near places to the hinderance 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 Part IV. 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" (z). $ 432. Extent of the neutral jurisdiction along the coasts and within the bays and rivers. 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. When the maritime war commenced in Europe, in 1793, the American government, which had determined to remain neutral, found it necessary to define the extent of the line of territorial protection claimed by the United States on their coasts, for the purpose of giving effect to 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 did not propose, at that 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 (2) Life and Works of Sir L. Jenkins, vol. ii. p. 727. |