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)

tions of the

to restore in

illegal cap

§ 433. It has been judicially determined that this Limitapeculiar 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 cases of 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 bonâ 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

pendent on

of the neu

tral State.

asylum and hospitality in neutral ports, but have a right the consent 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 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, § 132. Valin, Comm. sur l'Ordonn. de la Marine, tom. ii. p. 272.

[213 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.

does not relate to the war, the neutral must not refuse to one of the parties, merely because he is at war with the other, what she grants to that other. (a)

ping vessels,

ing men

neutral ter

either bel

ligerent,

unlawful.

§ 436. These principles were appealed to by the Ameri- Arming can government, when its neutrality was attempted to be and equipviolated on the commencement of the European war, in and enlist1793, by arming and equipping vessels, and enlisting within the men within the ports of the United States, by the re- ritory, by spective belligerent powers, to cruise against each other. gerent It was stated that if the neutral power might not, consistently with its neutrality, furnish men to either party for their aid in war, as little could either enrol them in the neutral territory. The authority both of Wolfius and Vattel was appealed to in order to show, that the levying of troops is an exclusive prerogative of sovereignty, which no foreign power can lawfully exercise within the territory of another State, without its express permission. The testimony of these and other writers on the law and usage of nations was sufficient to show, that the United States, in prohibiting all the belligerent powers from equipping, arming, and manning vessels of war in their ports, had exercised a right and a duty with justice and moderation. By their treaties with several of the belligerent powers, treaties forming part of the law of the land, they had established a state of peace with them. But without appealing to treaties, they were at peace with them all by the law of nature; for, by the natural law, man is at peace with man, till some aggression is committed, which by the same faw authorizes one to destroy another, as his enemy. For the citizens of the United States, then, to commit murders and depredations on the members of other nations, or to combine to do it, appeared to the American government as much against the laws of the land as to murder or rob, or combine to murder or rob, their own citizens; and as much to require punishment, if done within their limits, where they had a territorial jurisdiction, or, on the high seas, where they had a personal jurisdiction, that is to say, one which reached their own citizens only; this being an appropriate part of each nation, on an element where each has a common jurisdiction. (a)214

(a) Droit des Gens, liv. iii. ch. 7, § 104.

(a) Mr. Jefferson's Letter to M. Genet, June 17, 1793: Am. State Papers, i. 155. [214 See note 215, infrà, on Neutrality or Foreign Enlistment Acts.] — D.

The United

States neu

§ 437. The same principles were afterwards incorporated in a law of Congress, passed in 1794, and revised trality acts. and re-enacted in 1818, by which it is declared to be a misdemeanor for any person, within the jurisdiction of the United States, to augment the force of any armed vessel, belonging to one foreign power at war with another power, with whom they are at peace; or to prepare any military expedition against the territories of any foreign nation with whom they are at peace; or to hire or enlist troops or seamen for foreign military or naval service; or to be concerned in fitting out any vessel, to cruise or commit hostilities in foreign service, against a nation at peace with them; and the vessel, in this latter case, is made subject to forfeiture. The President is also authorized to employ force to compel any foreign vessel to depart, which by the law of nations or treaties ought not to remain within the United States, and to employ generally the public force in enforcing the duties of neutrality prescribed by the law. (a) The Brit- § 438. The example of America was soon followed by ish Foreign Great Britain, in the act of Parliament 59 Geo. III. ch. Act. 69, entitled, “An act to prevent the Enlisting or Engagement of His Majesty's Subjects to serve in foreign Service, and the Fitting out or Equipping in His Majesty's Dominions Vessels for warlike purposes, without His Majesty's License." The previous statutes, 9 and 29 Geo. II., enacted for the purpose of preventing the formation of Jacobite armies in France and Spain, annexed capital punishment as for a felony, to the offence of entering the service of a foreign State. The 59 Geo. III. ch. 69, commonly called the Foreign Enlistment Act, provided a less severe punishment, and also supplied a defect in the former law, by introducing after the words, "king, prince, state, or potentate," the words "colony or district assuming the powers of a government," in order to reach the case of those who entered the service of unacknowledged as well as of acknowledged States. The act also provided for preventing and punishing the offence of fitting out armed vessels, or supplying them with warlike stores, upon which the former law had been entirely silent.

Enlistment

in Parlia

Debates § 439. In the debates which took place in Parliament ment the upon the enactment of the last-mentioned act in 1819, act of 1819. and on the motion for its repeal in 1823, it was not denied by Sir J. Mackintosh and other members who opposed the

(a) Kent's Comm. i. 123.