any nation in particular, but against all nations in general, and which might, therefore, be observed without giving just offence to any.1

On the other hand, the minister of France asserted the right of arming and equipping vessels for war, and of enlisting men, within the neutral territory of the United States. Examining this question under the law of nations and the general usage of mankind, the American government produced proofs, from the most enlightened and approved writers on the subject, that a neutral nation must, in respect to the war, observe an exact impartiality towards the belligerent parties; that favors to the one, to the prejudice of the other, would import a fraudulent neutrality, of which no nation would be the dupe; that no succor ought to be given to either, unless stipulated by treaty, in men, arms, or any thing else, directly serving for war; that the right of raising troops being one of the rights of sovereignty, and consequently appertaining exclusively to the nation itself, no foreign power can levy men within the territory without its consent; that, finally, the Treaty of 1778, making it unlawful for the enemies of France to arm in the United States, could not be construed affirmatively into a permission to the French to arm in those ports, the treaty being express as to the prohibition, but silent as to the permission.2

$7. Hosti

lities within

the territory

of the neu

The rights of war can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. Hence it follows, tral State. that hostilities cannot lawfully be exercised within the territorial jurisdiction of the neutral State, which is the common friend of both parties.3

This exemption extends to the passage of an army § 8. Pasor fleet through the limits of the territorial jurisdiction, through the

sage

1 Mr. Jefferson's Letter to Mr. Hammond and Mr. Van Berckel, Sept. 9, 1793. Waite's State Papers, vol. i. pp. 169, 172.

2 Mr. Jefferson's Letter to Mr. G. Morris, Aug. 16, 1793. Waite's State Papers, vol. i. p. 140.

3 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 8. Martens, des Prises et Reprises, ch. 2, § 18.

neutral territory.

which can hardly be considered an innocent passage, such as one nation has a right to demand from another? and, even if it were such an innocent passage, is one of those imper fect rights, the exercise of which depends upon the consent of the proprietor, and which cannot be compelled against his will. I may be granted or withheld, at the discretion of the neutra. State; but its being granted is no ground of complaint on the part of the other belligerent power, provided the same privilege is granted to him, unless there be sufficient reasons for withhold ing it.1

The extent of the maritime territorial jurisdiction of every State bordering on the sea has already been described.2

§ 9. Capthe mari

rial juris

by vessels

stationed

hovering on

of

Not only are all captures made by the belligerent tures within cruisers within the limits of this jurisdiction absolutely time territo- illegal and void, but captures made by armed vessels diction, or stationed in a bay or river, or in the mouth of a river, or in the harbor of a neutral State, for the purpose within it, or exercising the rights of war from this station, are also the coasts. invalid. Thus, where a British privateer stationed itself within the river Mississippi, in the neutral territory of the United States, for the purpose of exercising the rights of war from the river, by standing off and on, obtaining information at the Balize, and overhauling vessels in their course down the river, and made the capture in question within three English miles of the alluvial islands formed at its mouth, restitution of the captured vessel was decreed by Sir W. Scott. So, also, where a belligerent ship, lying within neutral territory, made a capture with her boats out of the neutral territory, the capture was held to be invalid; for though the hostile force employed was applied to the captured 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

1 Vide ante, Pt. II. ch. 4, § 12, p. 253. Vattel, Droit des Gens, liv. iii. ch. 7, §§ 119-131. Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, § 13. Sir W. Scott, Robinson's Adm. Rep. vol. iii. p. 353.

2 Vide ante, Pt. II. ch. 4, §§ 6-8, pp. 233-236.

war are in any manner to be allowed to originate on neutral ground.1

§ 10. Ves

into the

Although the immunity of the neutral territory from the exercise of any act of hostility is generally admitted, sels chased yet an exception to it has been attempted to be raised neutral territory, and in the case of a hostile vessel met on the high seas and there cappursued; which it is said may, in the pursuit, be chased tured. within the limits of a neutral territory. The only text writer of authority who has maintained this anomalous principle is Bynkershoek. 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 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."3 (a)

1 The Anna, Nov. 1805. Robinson's Adm. Rep. vol. v. p. 373. The Twee Gebroeders, July, 1800. Vol. iii. p. 162.

2 Quæst. Jur. Pub. lib. i. cap. 8. This opinion of Bynkershoek, in which Casaregis seems to concur, is reprobated by several other public jurists. Azuni, Diritto Maritimo, Pt. I. c. 4, art. 1. Valin, Traité des Prises, ch. 4, § 3, No. 4, art. 1. D'Habreu, Sobre las Prisas, Pt. I. ch. 4, § 15.

3 Robinson's Adm. Rep. vol. v. p. 15. The Vrow Anna Catharina.

(a) [A case of violation of neutral territory occurred in the destruction, in the harbor of Fayal, in September, 1814, of the American privateer General Armstrong, by an English squadron. Reclamations, founded on it, were made against

§ 11. Claim on the ground of

neutral

territory

must be

Though it is the duty of the captor's country to make restitution of the property thus captured within violation of the territorial jurisdiction of the neutral State, yet it is a technical rule of the prize courts to restore to the indisanctioned vidual 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 sug gesting the invalidity of the capture.1

by the nex

tral State.

§ 12. Restitution by

Where a capture of enemy's property is made within the neutral neutral territory, or by armaments unlawfully fitted out State of pro- within the same, it is the right as well as the duty of tured within the neutral State, where the property thus taken comes its jurisdiction, or into its possession, to restore it to the original owners.

perty cap

the government of Portugal, which were, by the 2d article of the Treaty of 26th of February, 1851, (Treaties of the United States, 1854, p. 92,) agreed to be submitted to the arbitration of a sovereign, potentate, or chief of some nation in amity with both the high contracting parties. Under this provision, Louis Napoleon, the President of the French Republic, was selected as arbitrator. There is some discrepancy between the American statement and the summary of facts on which the award proceeds. The Prince President, however, in pronouncing that no indemnity was due from Portugal, does not deny the responsibility of a neutral to make compensation to a belligerent, whose property has been captured or destroyed within its jurisdictional limits by the opposing belligerent; but he bases his decision on the assumed fact, that the American commander had not applied, from the beginning, for the intervention of the neutral sovereign; that by having recourse to arms, to repel an unjust aggression of which he pretended to be the object, he had himself failed to respect the neutrality of the territory of the foreign sovereign, and had thereby released that sovereign from the obliga tion to afford him protection by any other means than that of pacific intervention; and that the Portuguese government could not be held responsible for the result of the collision which took place, in contempt of its rights of sovereignty, and in violation of the neutrality of its territory, and without the local officers being required, in proper time, to grant the necessary aid and protection. Cong. Doc. 32d Cong. 1st Sess. H. Rep. Ex. Doc. No. 53. 32d Cong. 2d Sess. Senate Ex. Doc. No. 24. See Rev. Étr. et Fr. tom. vii. p. 751, for the case of the French ships of war captured by the British in 1759, within the jurisdiction of Portugal, and restored on the demand of the Marquis Pomballos.]

Robinson's Adm. Rep. vol. iii. Note. Case of the Etrusco. Wheaton's Rep. vol. iii. p. 447. The Anne.

violation of

Chambers.

This restitution is generally made through the agency otherwise in of the courts of admiralty and maritime jurisdiction. its neutralTraces of the exercise of such a jurisdiction are found ity. 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 Captures council, dated October 11, 1675, relating to a French within the places called privateer seized at Harwich with her prize, (a Hamburg the King's 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 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 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 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." 1

Whatever doubts there may be as to the extent of the territorial jurisdiction thus asserted, as entitled to the neutral immu

1 Life and Works of Sir L. Jenkins, vol. ii. p. 727.