being more extensive than was claimed by any of them Chap. III. 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. But in case it should so happen, the party whose territorial rights shall thus have been violated, shall use his utmost endeavours 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 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 Part IV. 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). § 433. Limitations of the neutral to restore in cases of illegal capture. It has been judicially determined that this peculiar jurisdiction 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 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 had been applied is actually terminated (b). § 434. Right of asylum in dependent on the consent of the neutral State. An opinion is expressed by some text writers, that neutral ports belligerent cruisers not only are entitled to seek an asylum and hospitality in neutral ports, but have a right to bring in and sell their prizes within those ports. But 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 (a) Mr. Jefferson's Letter to M. Genet, Nov. 8, 1793-Waite's State Papers, vol. vi. p. 195. Opinion of the Attorney-General on the capture of the British ship Grange, May 14, 1793Ibid. vol. i. p. 75. Mr. Jefferson's Letter to Mr. Hammond, Sept. 5, 1793 -Ibid. vol. i. p. 165. Wheaton's Reports, vol. iv. p. 65, note (a). (b) The Amistad de Rues, 5 Wheaton, 385; La Nereyda, 8 ibid. 108; The Fanny, 9 ibid. 658; The Arrogante Barcelones, 7 ibid. 519; The Santissima Trinidad, ibid. 283. from all the belligerent powers; or even from granting Chap. III. it to one of them, and refusing it to others, where stipulated by treaties existing previous to the war. 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 sea-ports, 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 (c). cruisers in § 434a. The reception or exclusion of belligerent cruisers and their prizes in Reception of neutral ports is a matter entirely at the discretion of the neutral belligerent government. When there are no prohibitions, or conditions of entry, neutral ports. belligerent ships of war are entitled to expect all the ordinary hospitalities of a friendly port. If the neutral government chooses to make regulations for the admission of ships into its ports, foreign ships must obey them. A neutral is, however, not required by the law of nations to make any such rules, or to place any restrictions upon the liberty which it accords of purchasing provisions, coal, and other supplies (not being arms or munitions of war). It is not a rule of international law that the supplies purchased should be limited to any particular quantity. So long as the neutral supplies both parties equally, neither have any right to complain (d). § 434b. There is what constitutes a real exception to the rule that neutrals Repairs in may not assist belligerent ships of war in carrying on their warlike neutral ports. operations. Although such ships of war may not purchase arms or ammunition, or recruit men, in the neutral port, yet they may be repaired and provisioned in it. This is in reality assisting the belligerent; for the cruiser in fact refits herself for war by repairing her engines, quite as much as by repairing her gun-carriages. But she is allowed to do the one and not the other (e). The reason for permitting her to be refitted seems to be, that unless this were allowed she might be unable to leave the neutral port. It would be inhuman to compel her to go to sea without provisions, or in an unseaworthy state; yet the neutral, in permitting her to enter his harbour, does not bargain that she shall remain there always, or at all events till the end of the war. (c) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 15. Vattel, liv. iii. ch. 7, § 132. Valin, Comm. sur l'Ordonn. de la Marine, tom. ii. p. 272. Positive prohibitions are now the rule. See, for the latest instance, the British Proclamation of Feb. 10th, 1904, in the London Gazette of the following day. (d) British counter-case at Geneva. Parl. Papers, N. America, 1872 (No. 4), p. 13. Ortolan, Diplomatie de la Mer, tom. ii. p. 283. (e) Montague Bernard, Neutrality of England, p. 400. RIGHTS OF WAR AS TO NEUTRALS. Part IV. On the outbreak of a maritime war, neutral States generally make § 434c. some rules on this subject. During the American civil war, England English rules. prohibited all ships of war and privateers of either party from using any port or waters subject to British jurisdiction, as a station or place of resort for any warlike purpose, or for obtaining any facilities of warlike equipment; and no vessel of war or privateer of one belligerent was to be permitted to leave any British port, from which any vessel of the other belligerent (whether a ship of war or a merchant vessel) should have previously departed, until twenty-four hours after the departure of the latter. Any ship of war or privateer of either belligerent entering British waters was to be required to depart within twenty-four hours, except in case of stress of weather, or of requiring repairs, or necessaries for the crew. As soon as she was repaired, or had obtained her necessary stores, she was to be required to depart forthwith. Nothing but provisions requisite for the subsistence of the crew, and so much coal as would carry the ship to the nearest port of her own country, or to some nearer destination, was to be supplied to ships of war or privateers; the coal only to be supplied once in three months to the same ship, unless this was relaxed by special permission (ƒ). Similar rules were put in force during the Franco-German war, 1870-1 (g), in the Spanish-American war of 1898, and in the Russo-Japanese war of 1904. The rule in this latter case limited the supply of coal to so much only as may be sufficient to carry such vessel to the nearest port of her own country, or to some nearer named neutral destination" '(h). And the 1904 regulations mark a further advance over their predecessors in that they make it clear that the Foreign Enlistment Act extends to all the dominions of His Majesty, including the adjacent territorial waters, and that the rule compelling them to leave British waters within twenty-four hours is now specifically applied to those vessels which are at present in port, instead of only to those which may come into port after the issue of the proclamation (¿). § 434d. Prizes brought into British ports. During the American civil war a captor, who brought his prizes into British waters, was to be requested to depart and remove such prizes immediately. A vessel bona fide converted into a ship of war was, however, not to be deemed a prize. In case of stress of weather, or other extreme and unavoidable necessity, the necessary time for removing the prize was to be allowed. If the prize was not removed by the prescribed time, or if the capture was made in violation of British jurisdiction, the prize was to be detained until Her Majesty's pleasure should be made known. Cargoes were to be subject to the same rules as prizes (). A subsequent order provided that no ship of (f) Earl Russell to the Admiralty, &c. London Gazette, Dec. 15th, 1863. (g) Lord Granville to Admiralty, &c. London Gazette, 19th July, 1870. (h) London Gazette, Feb. 11th, 1904. (i) See, for the whole proclamation Appendix C. (k) Circular to Governors of Colonies, 2nd June, 1864. 589 war of either belligerent should be allowed to remain in a British port Chap. III. for the purpose of being dismantled or sold (7). During the Franco-German war of 1870-1, armed ships of either party were interdicted from carrying prizes made by them into the ports, harbours, roadsteads, or waters of the United Kingdom, or any of Her Majesty's colonies or possessions abroad. A similar rule was made in 1898 and 1904 (m). While the American civil war was prevailing France prohibited all ships of war or privateers of either party from remaining in her ports with prizes for more than twenty-four hours, except in case of imminent perils of the sea. No prize goods were permitted to be sold in French territory (n). Prussia remained content with ordering her subjects not to engage in the equipment of privateers, and to obey the general rules of international law (o). The Belgian rule commanded all privateers to depart immediately, unless prevented by absolute necessity. The Dutch regulation was the same. Neither country made any provision as regards ships of war (p). In the subsequent wars between Brazil and Paraguay, and Spain and Chile, Holland prohibited ships of war or privateers, with prizes, from entering or refitting in her harbours, unless overtaken by evident necessity. Ships of war without prizes might, however, remain an unlimited time in Dutch harbours, and provide themselves with an unlimited supply of coal, the government reserving to themselves the right of limiting their stay to twenty-four hours, should this be deemed advisable. When ships of both parties were in any harbour at the same time, one was not to be allowed to depart until twentyfour hours after the other (g). Japan adopted what is practically the British twenty-four hour rule as far back as 1870 (r). There is thus no uniform practice established, but the rule that when two hostile ships of war meet in a neutral port, the local authorities are to detain (1) London Gazette, 9th Sept. 1864. (m) Lord Granville to Admiralty, &c. London Gazette, 19th July, 1870. Hertslet, Commercial Treaties, xxi. p. 834. Lord Lansdowne to Admiralty. London Gazette, Feb. 10th, 1904. The hostilities between France and China in 1884-5 were conducted without any formal declaration of war. Complaints were made in Parliament that, although the French operations were chiefly injurious to British merchants, the French warships were suffered to use Hong Kong as, practically, their base of operations. Early in 1885, however, Great Britain decided to regard the French notification of the blockade of Formosa as equivalent to a declaration of war. Permission to refit was, consequently, denied to The Triomphante when she (n) Rep. Neutrality Laws Comm. (0) Ibid. p. 70. (r) M. Sakuyé Takahashi in the Revue de Droit International, 1901, p. 264. $ 434e. Rules of other countries. |