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reports the Secretary of the Navy telegraphed to Captain Cotton as follows: "Vigorously protest against being forced out of the port in the face of superior blockading force, especially as you were detained previously in the port by the French authorities because Spanish men-ofwar had sailed from another port. Also state that United States Government will bring the matter to the attention of the French Government. Urge United States consul to protest vigorously." It proved to be unnecessary to take further action. Captain Cotton's request for time was granted. The governor showed no disposition to force him out of port, only requiring twenty-four hours' notice of an intention to sail; and the dangers to which the Harvard seemed to be exposed soon disappeared. It may be observed, however, that as the enforcement under circumstances such as were described of the twenty-four hours' limit would constitute a negation of the admitted privilege of asylum, it is not likely that it would be held to be applicable in such a situation. (Int. Law Situations, 1901, p. 147.)

General summary.-While the neutral state would of course have no jurisdiction over a war ship or fleet which had recently left its territory, even though it might remain off its coast, yet the neutral state would have the power to determine what vessels it might admit in view of a failure by the ship or fleet to observe the spirit of the regulations which the neutral state had established in regard to departure and sojourn. (Perels, Öffentliche Seerecht der Gegenwart, sec. 39, III, 3.)

If in the situation under consideration the war ships of State X were those which had last left port N, they would in effect be blockading the United States port N, a neutral port, for a bona fide departure twenty-four hours in advance of the ship of State Y would have taken the ships of State X by that much out of the range of of this ship of State Y. The offense is not in such a case in the ship of State Y, last departing, but in the ships of State X, whose departure purported to have been taken twenty-four hours earlier. The vessel of State Y should therefore be permitted to return to port in such a case without liability to internment.

If the war ships of State X were other than those which had recently left port N and were about to enter port N, it has been customary to allow the vessel about to depart to return or even for the neutral to summon

the vessel to return when vessels of one of the belligerents are sighted as vessels of the other belligerent leave the port.

If the war ships of State X off the port were other than those which had recently left port N and were not about to enter port N it would not be customary to force the war ship of State Y to meet these vessels, and her return would be permitted unless it should be evident that the original entrance to port N was in the nature of an attempt to escape capture and this return was in fact a part of the same transaction.

CONCLUSION.

The war ship of State Y should be allowed to return to the neutral port without necessarily incurring liability to internment, unless it is evident that this return is to escape military consequences to which this war ship has, through her own action, become subject after departure from port N.

SITUATION III.

SEQUESTRATION OF PRIZE.

There is war between the United States and State X. Other States are neutral. France has not placed any restriction on the entrance into French ports of vessels with prize.

A war ship of the United States captures a merchant vessel of State Z which has evidently been guilty of violation of blockade. The United States war vessel is near a French port, but remote from a United States prize court. In order to avoid more severe action the commander of the United States war vessel decides to send the captured vessel into the French port with the request that it be held pending the decision of the United States. prize court on the evidence which has been forwarded. How far would this action be allowable?

SOLUTION.

The commander should not take the prize into French port to be sequestrated pending prize proceedings unless instructed. He should act in accord with General Orders, 492, of the Navy Department, 1898.

20. Prizes should be sent in for adjudication, unless otherwise directed, to the nearest home port in which a prize court may be sitting.

NOTES ON SITUATION III.

Statement.-In Situation III while the United States is at war with State X and other States neutral, an American war ship captures a merchant vessel of State Z because of violation of blockade. This vessel is near a French port. The question then arises as to whether the captor can send a vessel into a neutral port to await the decision of a prize court of the United States.

Early history. In earlier centuries there seems to have been a considerable variation in the practice as to receiving prize within neutral ports. In France an ordinance in

1400 prescribes that prizes made by French war vessels shall be sent to French ports. A similar ordinance was issued in Denmark in 1710. French ordinances of 1543, 1674, and 1689, in general made definite provisions by which

Il étoit défendu à tous capitaines ou commandans des vaisseaux de guerre, de laisser, ou d'envoyer en pays étranger, aucunes des prises qu'ils pourroient faire.

Christopher Robinson says:

The practice continued till a new system was introduced by the ord. 11 March, 1705. "Qui pour la première fois a permis de conduire es prises dans les ports étrangers, de les y vendre, ou de les ramener, sous la guarde et la surveillance des consuls Français." (Code des Prises 1799, vol. i, p. 375.) In 1759, ord. 22 May, France seems to have returned to the old practice: "Aucune prise ne sera conduite dans un port étranger, à moins d'une absolue nécessité." Code des Prises 1784, p. 1221. (Collectanea Maritima, p. 32n.)

The wars at the end of the eighteenth century disturbed practice and gave rise to irregularities in many matters relating to maritime warfare.

British opinion, court and vessel in neutral jurisdiction.In the case of the Flad Oyen which had been condemned by a French consul in a neutral port, Lord Stowell in 1799 said of prize condemnations:

Now, in what form have these adjudications constantly appeared? They are the sentences of courts acting and exercising their functions in the belligerent country, and it is for the very first time in the world that, in the year 1799, an attempt is made to impose upon the court a sentence of a tribunal not existing in the belligerent country, but of a person pretending to be authorized within the dominions of a neutral country. In my opinion, if it could be shown that, regarding mere speculative general principles, such a condemnation ought to be deemed sufficient, that would not be enough; more must be proved; it must be shown that it is conformable to the usage and practice of nations.

A great part of the Law of Nations stands on no other foundation; it is introduced, indeed, by general principles, but it travels with those general principles only to a certain extent; and, if it stops there, you are not at liberty to go farther, and to say that mere general speculations would bear you out in a further progress. Thus, for instance, on mere general principles it is lawful to destroy your enemy, and mere general principles make no great difference as to the manner by which this is to be effected; but the conventional law of mankind, which is

evidenced in their practice, does make a distinction, and allows some and prohibits other modes of destruction; and a belligerent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes.

Now, it having been the constant usage that the tribunals of the Law of Nations in these matters shall exercise their functions within the belligerent country, if it was proved to me in the clearest manner that on mere general theory such a tribunal might act in the neutral country, I must take my stand on the ancient and universal practice of mankind, and say that, as far as that practice has gone, I am willing to go, and where it has thought proper to stop, there I must stop likewise.

It is my duty not to admit, that because one nation has thought proper to depart from the common usage of the world, and to meet the notice of mankind in a new and unprecedented manner, that I am on that account under the necessity of acknowledging the efficacy of such a novel institution, merely because general theory might give it a degree of countenance, independent of all practice from the earliest history of mankind. The institution must conform to the text law, and likewise to the constant usage upon the matter; and when I am told that, before the present war, no sentence of this kind has ever been produced in the annals of mankind, and that it is produced by one nation only in this war, I require nothing more to satisfy me that it is the duty of this court to reject such a sentence as inadmissible. Having thus declared that there must be an antecedent usage upon the subject, I should think myself justified in dismissing this matter without entering into any farther discussion. But even if we look farther, I see no sufficient ground to say, that on mere general principles such a sentence could be sustained; proceedings upon prize are proceedings in rem; and it is presumed that the body and substance of the thing is in the country which has to exercise the jurisdiction. (1 C. Robinson, Admiralty Reports, 135.)

The condemnation in a neutral port is not far removed from the sequestration in a neutral port pending a decision of the prize court. Either makes possible the using of the neutral port as a sort of base. As was said by Lord Stowell in this case of the Flad Oyen:

It gives one belligerent the unfair advantage of a new station of war which does not properly belong to him, and it gives to the other the unfair disadvantage of an active enemy in a quarter where no enemy would naturally be found. The coasts of Norway could no longer be approached by the British merchant with safety, and a suspension of commerce would soon be followed by a suspension of amity..

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