brought into

fled within neutral territory, to places which were unin*121 habited, like the little mud islands before the *mouth of the Mississippi, and the cruiser, without injury or annoyance to any person, should quietly take possession of his prey, he would not stretch the point so far, on that account only, as to hold the capture illegal. But in this, as well as in every other case of the like kind, there is, in stricto jure, a violation of neutral jurisdiction, and the neutral power would have a right to insist on a restoration of the property. It was observed by the same high authority, in another case, depending on a claim of territory,a "that when the fact is established, it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding it may actually belong to the enemy."

Prizes A neutral has no right to inquire into the validity of a neutral ports, capture, except in cases in which the rights of neutral jurisdiction was violated; and, in such cases, the neutral power will restore the property, if found in the hands of the offender, and within its jurisdiction, regardless of any sentence of condemnation by a court of a belligerent captor. It belongs solely to the neutral government to raise the objection to a capture and title, founded on the violation of neutral rights. The adverse belligerent has no right to complain, when the prize is duly libelled before a competent court.c If any complaint is to be made on the part of the captured, it must be by his government to the neutral government, for a fraudulent, or unworthy, or unnecessary submission to a violation of its territory, and such submission will naturally provoke retaliation. In the case of prizes brought within a neutral port, the

neutral sovereign exercises jurisdiction so far as to restore *122 the property of its *own subjects, illegally captured;

and this is done, says Valin,d by way of compensation for the asylum granted to the captor and his prize. It has been held, in this country, that foreign ships, offending against our laws, within our jurisdiction, may be pursued and seized

The Vrow Anna Catharina, 5 Rob. Rep. 15.

The Arrogante Barcelones, 7 Wheaton, 496. The Austrian Ordinance of Neutrality, August 7th, 1808, art. 18. L'Amistad de Rues, 5 Wheaton, 390. • Case of the Etrusco, 3 Rob. Rep. 162, note.

d Com. tome ii. 274.

upon the ocean, and rightfully brought into our ports for adjudication.a

The government of the United States was warranted, by Arming in the law and practice of nations, in the declarations made in neutral ports. 1793, of the rules of neutrality, which were particularly recognised as necessary to be observed by the belligerent powers, in their intercourse with this country. These rules were, that the original arming or equipping of vessels in our ports, by any of the powers at war, for military service, was unlawful; and no such vessel was entitled to an asylum in our ports. The equipment by them of government vessels of war, in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful. The equipment by them of vessels fitted for merchandize and war, and applicable to either, was lawful; but if it were of a nature solely applicable to war, it was unlawful. And if the armed vessel of one nation should depart from our jurisdiction, no armed vessel, being within the same, and belonging to an adverse belligerent power, should depart until twenty-four hours after the former, without being deemed to have violated the law of nations. Congress have repeatedly, by statute, made suitable provision for the support and due observance of similar rules of neutrality, and given sanction to the principle of them, as being *founded in the universal law of *123 nations. It is declared to be a misdemeanor for any citizen of the United States, within the territory or jurisdiction thereof, to accept and exercise a commission to serve a foreign prince, state, colony, district or people, in war, by land or by sea, against any prince, state, colony, district or people, with whom the United States are at peace; or for any person, except a subject or citizen of any foreign prince, state, colony, district or people, transiently within the United States, on board of any foreign armed vessel, within the ter

The Marianna Flora, 11 Wheaton, 42.

Vattel, b. 3. sec. 104. Wolfius, sec. 1174. Austrian Ordinance of Neutrality, August 7th, 1803. Cours de Droit Public, par M. Pinheiro-Ferreira, tome ii. pp. 44-47.

• Instructions to the Collectors of the Customs, August 4th, 1793. Mr. Jefferson's Letters to M. Genet, of 5th and 17th June, 1793. His Letter to Mr. Morris, of 16th August, 1793. Mr. Pickering's Letter to Mr. Pinckney, January 16th, 1797. His Letter to M. Adet, January 20th, 1796.

ritory or jurisdiction of the United States, to enlist or enter himself, or hire or retain another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered in the service of any foreign prince, state, colony, district or people, as a soldier, or mariner, or seaman; or to fit out and arm, or to increase or augment the force of any armed vessel, with intent that such vessel be employed in the service of any foreign power at war with another power, with whom we are at peace; or to begin, or set on foot, or provide, or prepare the means for any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district or people, with whom we 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 us; and the vessel, in this latter case, is made subject to forfeiture. The President of the United States is also authorized to employ force to compel any foreign vessel to depart, which, by the law of nations, or by treaty, ought not to remain within the United States, and to employ the public force generally, in enforcing the observance of the duties of neutrality prescribed by law. In the case of the Santissima Trinidad," it was decided, that captures made by a vessel so illegally fitted out, whether a public or private armed ship, were torts, and that the original owner was entitled to restitution, if the property was brought within our jurisdiction; but that an illegal outfit did not affect a capture made after a cruise to which the outfit had been applied had terminated. The offence was deposited with the voyage, and the delictum ended with the termination of the cruise.c

• Acts of Congress of 5th June, 1794, and 20th April, 1818, c. 83. By an act of Congress of March 10th, 1888, c. 31, the provisions of the act of 1818 were enlarged and applied to any military expedition or enterprise against the territory of any foreign prince or state, or of any colony, district or people, conterminous with the United States, and with whom they are at peace. Great Britain, by act of parliament of 59 Geo. III, called the Foreign Enlistment Act, in like manner prohibited enlistments and equipments within the king's dominions, for warlike purposes in foreign states.

7 Wheaton, 283.

• The seamen of a neutral nation may serve on board of a commercial vessel of

Though a belligerent vessel may not enter within neutral jurisdiction for hostile purposes, she may, consistently with a state of neutrality, until prohibited by the neutral power, bring her prize into a neutral port, and sell it. The neutral power is, however, at liberty *to refuse this privilege, *124 provided the refusal be made, as the privilege ought to be granted to both parties, or to neither. The United States, while a neutral power, frequently asserted the right to prohibit, at discretion, the sale within their ports, of prizes brought in by the belligerents; and the sale of French prizes was allowed as an indulgence merely, until it interfered with the treaty of England of 1794, in respect to prizes made by privateers. In the opinion of some jurists, it is more consistent with a state of neutrality, and the dictates of true policy, to refuse this favour; for it must be very inconvenient to permit the privateers of contending nations to assemble, together with their prizes, in a neutral port. The edict of the States General of 1656, forbade foreign cruisers to sell their prizes in their neutral ports, or cause them to be unladen; and the French ordinance of the marine of 1681, contained the same prohibition, and that such vessels should not continue in port longer than twenty-four hours, unless detained by stress of weather. The admission into neutral ports of the public ships of the belligerent parties, without prizes, and under due regulations, is considered to be a favour, required on the principle of hospitality among friendly powers, and it has been uniformly conceded on the part of the United States.d

a belligerent power, or be employed in a contraband trade on board of a neutral vessel, without being liable to punishment personally, by the municipal laws of his own country, or by the law of nations. Opinions of the Attorneys-General of the United States, vol. i. 35.

Bynk. b. 1. c. 15. Vattel, b. 3. c. 7. sec. 132. Martens, b. 8. c. 6. sec. 6. Hopner v. Appleby, 5 Mason's Rep. 77.

Instructions to the American Ministers to France, July 15th, 1797. Mr. Pickering's Letters to M. Adet, May 24th and November 15th, 1796. His Letter to Mr. Pinckney, January 16th, 1797. It is deemed proper and safe for a neutral power to permit a prize brought into port in distress, to be repaired, for the purpose of further navigation. Opinions of the Attorneys-General, vol. i. 603.

• Valin's Com. tome ii. 272.

Mr. Jefferson's Letter to Mr. Hammond, September 9th, 1793. Instructions to the American Commissioners to France, July 15th, 1797. Cours de Droit Public, VOL. I.

9

Prizes in neutral ports.

Enemy's property in a

But neutral ships do not afford protection to enemy's proneitral ves-perty, and it may be seized if found on board of a neutral vessel, beyond the limits of the neutral jurisdiction. This is

Eel.

a clear and well settled principle of the law of nations.a *125 It was formerly a question, whether the neutral *ship, conveying enemy's property, was not liable to confiscation for that cause. This was the old law of France, in cases in which the master of the vessel knowingly took on board enemy's property; but Bynkershoeck truly observes, that the master's knowledge is immaterial in this case, and that the rule in the Roman law, making the vessel liable for the fraudulent act of the master, was a mere fiscal regulation, and did not apply; and for the neutral to carry enemy's goods is not unlawful, like smuggling, and does not affect the neutral ship.c If there be nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage, and his freight for the carriage of the goods, though he has not carried them to the place of destination. They are said to be seized and condemned, not ex delicto, but only ex re. The capture of them by the enemy is a delivery to the person who, by the rights of war, was substituted for the owner.d Bynkershoecke thinks the master is not entitled to freight, because the goods were not carried to the port of destination, though he admits that the Dutch lawyers, and the consolato, give freight. But the allowance of freight in that case has been the uniform practice of the English admiralty for near two centuries past, except when there was some circumstance of mala fides, or a departure from a strictly proper neutral conduct. The freight is paid not pro rata, but in toto, because

par M. Pinheiro-Ferreira, tome ii. p. 47. Such public vessels are exempt from the jurisdiction of the local authorities; but this exemption does not extend to private vessels. Vide infra, p. 156, note.

■ Grotius, 1. 3. c. 6. sec. 6. Heinec. de Nav. ob. vect. c. 2. sec. 9. Bynk. Q. J. Pub. c. 14. Loccenius, de Jure mar. et nav. b. 2. c. 4. sec. 2. Molloy, de Jure maritimo, b. 1. c. 1. sec. 18. Lampredi, du Commerce des Neutres, sec. 10, 11. Vattel, b. 3. c. 7. sec. 115. Answer, in 1753, to the Prussian Memorial. Consulat. de la Mer, par Boucher, tome ii. c. 273. 276. sec. 1004.

bOrd. de la Marine, liv. 3. tit. 9. des Prises, art. 7.