and 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. (a) He admits that he had never seen it mentioned in the writings of

dignity of both countries," and without any unnecessary severity or violence. That, at the same time, he regarded these acts as unjustifiable in strictness of law, and regrets and disapproves them "as a violation of the law of nations, and of the friendly relations existing between the two countries," and had directed the naval officer to be censured for this violation. Earl Russell, in a letter to Lord Lyons, of Feb. 3, 1864, states that the British Government is satisfied with the letter of Mr. Seward.

The Advocate-General, in behalf of the crown, instituted proceedings in the ViceAdmiralty Court at Halifax against the Chesapeake as having been piratically taken at sea. The owners of the vessel and cargo made claims to them in court; but no appearance was entered, either for Braine and his party, or for the United States naval captors. The affidavits exhibited showed only a piratical seizure, and the AdvocateGeneral consented to a delivery of the vessel and cargo to the several claimants—without stipulations to cover latent claims—as a restoration from piratical seizure. The judge (the Hon. Alexander Stewart) ordered delivery; giving at the time an elaborate opinion to the effect, that, on the affidavits alone, no belligerent authority for the seizure by Braine and his party appearing, the seizure was piratical, and the restoration proper; and intimated that, even if, as had been suggested by an amicus curia at the bar, Braine and his party acted under belligerent authority, their course was such as to deprive them of the benefit of that plea in the court of the neutral; for they had brought their prize, uncondemned, into the ports of that neutral, and concealed her there to escape recapture by vessels searching for her, and landed and sold cargo, both enemy's and neutral property alike, and obtained supplies surreptitiously and under false names; and then, instead of appearing to claim their prize in court, had abandoned her, and fled the province in avoidance of warrants issued by the authorities of the province. This restitution of vessel and cargo ended the question between the two governments.

The whole case is resolved into a few elements: Whether Braine and his party were pirates jure gentium, or only criminals by the municipal law of the United States, the naval officers of the United States, as belligerents, had no right to arrest them or the vessel within British territorial jurisdiction. Disclaimer and apology by the United States became necessary, and were freely tendered. The United States regarded the case as one of pure piracy, and the act of its officers in making the arrest as the result of a zealous desire to perform a duty to mankind, and accompanied with no wilful or unnecessary force or rudeness; and, as the port was a small one, with no local police force, the retaking possession of persons and property piratically seized, under such circumstances, for the sole purpose of delivering them at once into competent neutral custody, constituted rather a formal than a serious violation of the law of nations, for which restoration of the vessel and prisoners to British authority, disclaimer, apology, and a censure of the officers, was an adequate satisfaction and security. Great Britain acquiesced in this view. No competent claim of belligerent authority for the seizure by Braine and his party was ever made, either in the courts or to the

(a) 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, Part I. ch. 4, art. 1. Valin, Traité des Prises, ch. 4, § 3, No. 4, art. 1. D'Habreu, Sobre las Prisas, Part I. ch. 4, § 15.

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." (b)208 political authorities of Great Britain. So the legal and political character of the case was one of piracy, with a notion that a color of belligerent authority might possibly have existed, which was never produced. The restitution of the vessel and cargo to the owners, by rule of the Vice-Admiralty Court, on motion of the crown officer, ended the question as to the vessel; and the escape of the men, between their discharge and re-arrest, closed the question as to extradition. U. S. Dip. Corr. 1864, Part I. pp. 46, 72, 77, 121, 196, 431; Part II. pp. 401-407, 468, 474, 482, 483, 488, 490, 511, 538, 562, 650. Papers presented to the House of Commons in reply to the Address of March 7, 1864, North America, No. 9.]—D.

(b) The Vrow Anna Catharina, Robinson's Adm. Rep. v. 15.

[28 Belligerent Acts in Neutral Waters. — It may be considered the settled practice of nations, intending to be neutral, to prohibit belligerent cruisers from entering their ports, except from stress of weather or other necessity, or for the purpose of obtaining provisions and making repairs requisite for seaworthiness. They must not increase their armament or crew, or add to their belligerent efficiency. It is now the custom to fix a short time for the stay of such vessels, after they have done what is permitted them, or the marine exigency has passed, — usually twenty-four hours. These rules, however, are at the option of the neutral. But, at all events, no acts of hostility are permitted within neutral waters, nor can neutral ports or waters be made a base of operations. Cruising within those limits, to prevent entrance or exit by an enemy, is prohibited, and all forms of using the asylum of neutral waters for hostile acts. The fact that a chase is pursued, dum fervet opus, into neutral territory, does not justify a capture there. (Halleck's Intern. Law, 520. Kent's Comm. i. 120. Phillimore's Intern. Law, iii. § 154. Heffter, Europ. Völker. § 146. Manning's Law of Nations, 186, 386.) It is usual, and indeed necessary, in order to prevent an undue use of neutral waters as asylum, to establish a rule as to the departure of hostile belligerents lying in a neutral port at the same time. Twenty-four hours' delay is now often exacted of one belligerent after the other shall have sailed, which, in case of steamers, is sufficient. And, if a cruiser is within the neutral waters, though not in port, the neutral may

Claim on

of violation

$430. Though it is the duty of the captor's country to make restitution of the property thus captured within the the ground territorial jurisdiction of the neutral State, yet it is a of neutral technical rule of the prize courts to restore to the indi- must be vidual claimant, in such a case, only on the application by the neuof the neutral government whose territory has been thus tral State.

territory

sanctioned

convoy the belligerent in port beyond its waters, and insist that the other shall keep within the waters for a reasonable time thereafter.

During the Russian war, in 1854, Sweden and Denmark made declarations as to their course of neutrality in similar terms. They would admit belligerent vessels into their ports (reserving the right to prohibit the use of certain fortified ports); allow them to get supplies of stores not contraband of war; and would exclude the entrance and sale of all prizes, except in cases of proved distress. (Phillimore's Intern. Law, iii. § 141.)

During the civil war in the United States, the British Government issued general regulations as to all its ports in the kingdom or beyond seas, and special regulations as to the ports in the British West Indies near to the United States. The Order in Council of 31st January, 1862, provides that cruisers of either belligerent, entering any British port, shall leave it after twenty-four hours, "except in case of stress of weather, or of her requiring provisions, or things necessary for the subsistence of her crew, or repairs;" and, in that case, she must sail as soon as possible after the reason for remaining ceases, and, in no event, more than twenty-four hours thereafter. It prohibits the taking on board of supplies "beyond what may be necessary for her immediate use." It prohibits, in general terms, belligerent cruisers “making use of any port, roadstead, &c., as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities of warlike equipment." As to supplies of coal, they are limited to such as may be necessary to carry the cruiser to the nearest port of her own country, or some nearer port; and no vessel shall, without special permission, obtain a second supply of coal within three months of a previous supply obtained within British waters. Earl Russell made a distinction as to coal, that the furnishing it by a merchant to a war-steamer of either belligerent in Europe, so far from her own ports, might be considered the furnishing of a matter of general necessity; but refused to allow a steamer of the United States to take coal at Nassau from vessels sent there by the Navy Department, with coal consigned to the United States Consul, for the supply of their war-steamers. (Earl Russell to Mr. Adams, March 25, 1862.) The Order in Council provides, that, if vessels of both belligerents are within British waters, the proper official may order the time of sailing of each; and no armed vessel of one belligerent shall be permitted to depart from the limits of British waters until at least twenty-four hours after the vessel of the other belligerent, whether it be an armed vessel or a merchantman, shall have sailed and passed beyond those waters. As to the Bahama Islands, the Order makes the further prohibition that no cruisers of either belligerent shall come within their waters, except by special leave of the Lieutenant-Governor, or in case of stress of weather.

(In Phillimore's Intern. Law, iii. § 380, may be found a reference to the chief treaties on the subject of receiving prizes and permitting their sale in neutral ports, from 1654 to 1829.)

The government of the United States made no objection to this order as a regulation between belligerents, although it objected to the recognition of belligerency of the rebels. See the correspondence between Mr. Adams, Earl Russell, and Mr. Seward, be

violated. This rule is founded upon the principle, that the neutral State alone has been injured by the capture, and that the hostile

tween 1861 and 1865, in the volumes of Diplomatic Correspondence of those years; especially the letters of Earl Russell to Mr. Adams, of Jan. 10, 1862, and Feb. 1, 1862, relating to the Tuscarora and Nashville. See also Earl Russell's speech of March 10, 1862, and his reply to the Liverpool ship-owners of July 5, 1862.

Violations of neutral waters by acts of war were almost the rule, rather than the exception, in the early wars and those arising out of the French Revolution. British cruisers seldom hesitated to continue their pursuit of any vessels into neutral territory, and even to complete their capture in neutral ports; and the cutting enemy's vessels out of neutral ports by boat expeditions was a common occurrence. In those days, it was rarely that a nation powerful enough to resent such an injury was not either an enemy or an ally of England. A memorable instance was that of the capture and destruction of four French vessels off Lagos, in Portugal, by a British fleet, which had pursued them there. Portugal made earnest remonstrances, and demanded restitution or indemnification, by which she could satisfy the claims of France upon her. Although the British Government treated Portugal with great courtesy, Mr. Pitt instructed his minister to avoid the direct issue, and to suggest the fact of hot pursuit; but privately assuring him that restitution or compensation would not be made and it was not. France alleged the failure of Portugal to insist on her rights against England as one of the justifications for her invasion. In 1793, the French frigate Ambuscade captured a British merchant-vessel (The George) in Delaware Bay, and took her to Charleston as a prize; and the United States Government, on complaint of the British Government, brought the subject to the attention of the French Minister, who caused the vessel to be restored. (Mr. Jefferson to M. Ternaut, May 15, 1793; opinion of the Attorney-General, May 14, 1793; and reply of M. Genet, of May 27, 1793. Waite's Am. State Papers, i. 69-80.) In 1805, the British Court of Admiralty restored an American vessel captured within American waters, near the Mississippi River, by a British privateer, and taken to England as a prize, on suspicion of unneutral character. The Anna, Rob. v. 373.

During the war of 1812-15 between the United States and Great Britain, the United States frigate Essex was attacked and compelled to surrender, while at anchor, dismasted, in Valparaiso, by the British frigate Phoebe and sloop-of-war Cherub. The sloop-of-war Levant, a recent prize to the United States frigate Constitution, was chased into Port Praya, and captured while at anchor there by vessels from the British fleet. The United States privateer General Armstrong, lying in the harbor of Fayal, was destroyed by vessels from the British fleet. The demand upon Portugal, by the United States, for indemnification, was ultimately left to the arbitration of Louis Napoleon, then President of the French Republic. He recognized the attack as a violation of neutral rights, but decided against indemnification, on the ground that the privateer did not demand protection from the Portuguese authorities at the time, but resisted by battle the unjust attack of the British vessels, instead of relying upon the neutral protection. This decision was not satisfactory to the United States, as they did not consider the fact on which it rested as established in proof. The principle of the decision must certainly be confined to cases where the vessel attacked has reason to believe that effectual protection can be seasonably afforded by the neutral, and makes a fair choice to take the chances of a combat rather than to appeal to neutral protection. Ex. Doc. 32d Cong. Senate, No. 24.

In the case of the schooner Caroline, that vessel had been employed by Canadian insurgents to carry munitions of war and persons taking part in the insurrection, from

claimant has no right to appear for the purpose of suggesting the invalidity of the capture. (a)209

the New York side of the Niagara River to the Canadian side. A Canadian armed force was sent to capture her, expecting to find her on the Canada side; but, learning that she was on the American side, they went over and destroyed her. In the correspondence between Mr. Webster and Lord Ashburton on the subject, Mr. Webster contended, that, for such an infringement of territorial rights, the British Government must show "a necessity of self-defence, instant, overwhelming, and leaving no choice of means and no moment for deliberation;" and it should further appear that the Canadian authorities, in acting under this exigence, "did nothing unreasonable or excessive." Lord Ashburton admitted the correctness of Mr. Webster's doctrine, contended that the circumstances came up to that statement of it, and "regretted that some explanation and apology for the occurrence was not immediately made." This was accepted by the United States as satisfactory. (Webster's Dip. and Off. Papers, 112-120. Webster's Works, vi. 255-262, 292–303.)

On the general doctrine of the rights and obligations of neutrals in giving asylum to belligerent cruisers within their waters, and belligerent acts done therein, see also Halleck's Intern. Law, 517-523, Kent's Comm. i. 118-125, Heffter, Europ. Völker. § 146-150, Hautefeuille, Droits des Nat. Neutr. tit. 6, ch. 1, § 1, De Cussy, liv. i. tit. 3, § 13, Ortolan, Règl. Intern. liv. ii. ch. 8, Manning's Law of Nations, 387, Martens, Précis du Droit des Gens, § 310.

On the occasion of a complaint by the British Government that a cruiser of the United States had captured a vessel in British waters, Mr. Seward, by direction of the President, addressed a note to the Secretary of the Navy, of Aug. 8, 1862, giving strict instructions to be communicated to the officers of the navy, "under no circumstances to seize any foreign vessel within waters of a friendly nation," and wrote to Lord Lyons, that, if any act of hostility or pursuit was committed within the maritime jurisdiction of Great Britain, the act would be disavowed, and ample redress

(a) Robinson's Adm. Rep. iii. note, Case of The Etrusco. The Anne, Wheaton's Rep. iii. 447.

[29 Although this phrase has been repeated by many text-writers, it can hardly be said to be simply a "technical rule of prize courts." It involves a direct and paramount question of right, and is settled upon principle. If a neutral vessel, which has violated neutrality so as to make herself liable to condemnation as prize, is captured as such at sea by a cruiser, and sent in for adjudication, the court will condemn her as prize, on the merits of the case. It is not a valid defence that the place of her arrest was the waters of some other neutral power. The breach of sovereign territorial right is a matter solely between the State making the capture and the State whose territory is entered upon. The demand made by the latter State may involve the restitution of the prize, and so, if complied with, operate in favor of the vessel in the hands of the court, whether neutral or enemy; but that is only an indirect effect. If the offended State does not demand restitution, or if the belligerent government refuses it, the prize will be condemned. It is not to be supposed that even the demand of the neutral State would operate directly a restitution of the prize, by the court, against the will or without the consent of the sovereignty under which the court sits. In short, the question is one of international diplomacy, and not a rule of decision in prize law between the captor and the claimant. (Judge Story, in The Anne, Wheaton's Rep. iii. 435. Judge Sprague, in The Lilla, Sprague's Decisions, ii.; and Law Reporter, xxv. 92.)] — D.