Argument for the claimants. therefore, upon the contestation of these competent litigants, any fact appears to the court exhibiting the capture to be unlawful and void, that fact is to have its consequence in a sentence of restitution, as necessarily as upon any other form of presentation to or cognizance by the court of the fact in question. It is impossible for the court to ignore such fact, for it is alleged and proved by a litigant, to whom it is open to allege and prove whatever is pertinent and is true, bearing upon the question of prize or no prize. If the fact thus before the court, under the rules of the law of nations, requires the restitution of the prize, sentence of condemnation cannot pass without a violation of the law of nations. 2. The Sir William Peel with her cargo, when lying at anchor within the neutral territory of Mexico, was captured, in violation of the absolute immunity from belligerent visitation, search, or capture, enjoyed by neutral property within neutral territory. Upon this fact appearing, the capture is, by the law of nations, illegal and void, carrying no rights to the captors, involving the neutral property or its neutral owners in no amenability to the prize jurisdiction on the merits, and exposing the captors to exemplary damages from the justice of the prize court, and to personal punishment from their belligerent government, which their misconduct has compromised with the neutral nation of the injured neutral owners, not less than with the neutral nation whose territory has been violated. As between belligerents, the rights of war are substantially measured by their power. But as between neutrals, the mere power of the belligerents carries no right whatever. The whole scope and measure of the rights of a belligerent towards neutrals, are determined by the conceded or adjusted rules and limits of interference fixed by the law of nations. These rules and limits relate either to the theatre or region within which any rights whatever are conceded to the belligerents towards neutrals, or to the restrictions upon such rights within the theatre or region where, to any degree, such rights are conceded. 66 Argument for the claimants. By the law of nations, within the region invaded by this belligerent capture, the belligerent had no right whatever as towards or against neutral nations, nor the property of their subjects. The rights of war," says Mr. Wheaton, "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 that hostilities cannot lawfully be exercised within the territorial jurisdiction of the neutral state which is the common friend of both parties."* "The maritime territory of every state extends to the ports, &c. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the state. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of any other nation."† Every exercise of belligerent right, whether of visitation, search, or capture, within neutral territory, is absolutely unlawful, and every capture within such territory is absolutely void. “There is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful." "All captures made by the belligerent within the limits of this (neutral) jurisdiction are absolutely illegal and void."§ "When the fact is established," says Lord Stowell, "it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding it may actually belong to the enemy; and if the captor should appear to have erred wilfully, and not merely through ignorance, he would be subject to further punishment."|| The government of the United States, in the most definite and vigorous manner, and in the most public and authentic form, recognized these limitations of belligerent rights, and enjoined upon our cruisers a strict observance of them, * Dana's Wheaton, 426. ‡ Id. 429. † Id. ¿ 171. The Vrow Anna Catharina, 5 Robinson, 18, cited and approved, Dana's Wheaton, 429. Argument for the claimants. under penalty of its displeasure. Upon a suggestion from the British minister, that the cruiser Adirondack had pushed the chase of a British vessel within the line of neutral maritime jurisdiction, the Secretary of State, under date of August 14, 1862, communicated to the Secretary of the Navy the views of the government in the following terms: "The President desires that you ascertain the truth of this fact with as little delay as possible, since, if it be true, the commander of the Adirondack has committed an inexcusable violation of the law of nations, for which acknowledgment and reparation ought to be promptly made. To guard against any such occurrence hereafter, the President desires that you at once give notice to all commanders of American vessels of war, that this government adheres to, recognizes and insists upon the principle that the maritime jurisdiction of every nation covers a full marine league from the coasts, and that acts of hostility or of authority within a marine league of any foreign country, by any naval officer of the United States, are strictly forbidden, and will bring upon such officer the displeasure of his government."* Indeed, the commission to cruisers, by the law of natious and by the practice of our government, accepts and enforces these limitations on belligerent rights towards neutrals. Thus, the "instructions to private armed vessels," during the last war with Great Britain, enforced this limita on: "The tenor of your commission, under the act of Congress, entitled An act concerning letters of marque, prizes, and prize goods,' a copy of which is hereunto annexed, will be kept constantly in your view. The high seas, referred to in your commission, you will understand generally to refer to low water mark, but with the exception of the space within one league, or three miles, from the shore of countries at peace both with Great Britain and with the United States. You may, nevertheless, execute your commission within that distance of the shore of a nation at war with Great * Lawrence's Wheaton, n. 215, p. 715. Argument for the claimants. Britain, and even upon the waters within the jurisdiction of such nation, if permitted so to do."* Accordingly, the Secretary of the Navy, in a communication to the Secretary of State, in answer to the remonstrance of the British minister against the violation of the law of nations by this and other captures in neutral waters, as made known to the Secretary of the Navy by the Secretary of State, expressly disclaims either the right or the purpose to make such captures. He said: "I do not understand our government to claim the right of, &c., nor the right, of capturing ships in Mexican waters, or in any neutral waters." "It is not improbable that the commanders of some of our cruisers in the Gulf are not accurately informed of the extent of the national rights herein referred to, and the department will lose no time in placing the matter properly before them.”† 3. A's, then, the capture was made in the neutral waters of Mexico, and upon that mere statement, was— (a) In excess of the cruiser's commission from our government; (b) In excess of exercise of belligerent rights, conceded and submitted to by the neutral nation whose subjects are the owners of the captured property; As it had been (a) In terms "strictly forbidden" to our cruisers, and brings upon the captors "the displeasure of the government;" (b) Pronounced by the government "an inexcusable violation of the law of nations, for which acknowledgment and reparation ought to be promptly made-" The vessel and cargo are not lawful prize of war, and the decree of restitution must be affirmed. The prize court is but a judicial scrutiny or inquisition, in behalf of the government, to ascertain and adjudicate * Wheaton on Captures, Appendix, 341. Mr. Welles to Mr. Seward, March 5, 1864, Diplomatic Correspondence, p. 548. Argument for the claimants. whether the res is subject to condemnation, as captured within and in pursuance of the belligerent right of the govcrument, conformably to the law of nations. When the contrary appears, restitution follows, and in no case can the treasury be enriched, and the captors rewarded, by condemnation, when the capture is "an inexcusable violation of the law of nations, for which reparation must be promptly made," and brings upon the captor "the displeasure of his government," provided this character of the capture is before the prize court. 4. It is submitted that no case can be found in which the property of neutral claimants, admitted to allege and prove the invalidity of a capture in neutral waters, has been condemned. The case of The Lilla (in Sprague's Decisions),* in the District Court of Massachusetts, is no exception to this proposition. The court held the fact not made out, and the very brief observation of the court, that, if made out, the objection was not open to the neutral claimant, was but obiter. 5. The rule, supposed to be established, and the cases in support of it, that, though actual enemy property captured in neutral waters is not good prize, and must be restored, upon that fact appearing, yet the enemy owner cannot be heard to make the objection, but only the neutral nation whose waters have been entered, rest upon the reason that no wrong can be done to an enemy, and no allegation can be heard in his behalf. In other words, that in the case of enemy's property, the fact of invalid capture cannot come before the prize court, except upon the representation of the neutral nation. "It is a technical rule of the prize courts," says Mr. Wheaton, "to restore to the individual 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 suggesting the invalidity of the capture." * Vol. ii, p. + Dana's Wheaton, 430. |