of determining on its binding obligation, holds out strong temptations to abuse; and, in the language of Mr. Jenkinson,(a) "when the execution of guaranties depends on questions like these, it will never be difficult for an ally who hath a mind to break his engagements, to find an evasion to escape."

ritory invio

A neutral has a right to pursue his ordinary com- Neutral termerce, and he may become the carrier of the enemy's lable. goods, without being subject to any confiscation of the ship, or of the neutral articles on board; though not without the risk of having the voyage interrupted by the seizure of the hostile property. As the neutral has a right to carry the property of enemies in his own vessel, so, on the other hand, his own property is inviolable, though it be found in the vessels of enemies. But the general inviolability of the neutral character goes further than merely the protection of neutral property. It protects the property of the belligerents when within the neutral jurisdiction. It is not lawful to make neutral territory the scene of hostility, or to attack an enemy while within it; and if the enemy be attacked, or any capture made, under neutral protection, the neutral is bound to redress the injury, and effect restitution.(b)1 The books are full of cases recognizing this principle of neutrality. In the year 1793, the British ship Grange was captured in Delaware Bay by a French frigate, and upon due

(a) Discourse on the Conduct of the Government of Great Britain in respect to Neutral Nations, 1757.

(b) Grotius, b. 3, c. 4, sec. 8, note 2. Bynk. b. 1, c. 8. Vattel, b. 3, c. 7, sec. 132. Burlamaqui, vol. ii. part 4, c. 5, sec. 19.

1 The doctrine in the text was the subject of great discussion in a case of national interest.

The governments of the United States and of Portugal, by a convention of February 26th, 1851, submitted their differences, relative to "The General Armstrong," privateer, destroyed by an English squadron, in the port of Fayal, September 27th, 1814, to the decision of the President of the French Republic. The decision of Louis Napoleon, given November 30th, 1852, was in favor of Portugal, suggesting the following grounds:

That the English boats, approaching the privateer, in the night preceding the action, were ordered off, and fired upon by the American crew:

That the feebleness of the Portuguese garrison rendered an armed intervention impossible, and the governor endeavored, by remonstrance, to preserve the peace of his port: And the commander of the privateer, not having, from the beginning, had recourse to the intervention of the neutral power, and having employed arms to repel the attack, and thus disregarded the neutrality of the port, the neutral sovereign was released from the obligation to assure him protection by any other mode than pacific intervention.

complaint, the American government caused the British ship to be promptly restored. (a) So in the case of The Anna,(b) * 118 the * sanctity of neutral territory was fully asserted and vindicated, and restoration made of property captured by a British cruiser near the mouth of the Mississippi, and within the jurisdiction of the United States. It is a violation of neutral territory for a belligerent ship to take her station within it, in order to carry on hostile expeditions from thence, or to send her boats to capture vessels being beyond it. No use of neutral territory, for the purposes of war, can be permitted. This is the doctrine of the government of the United States. (c) It was declared judicially in England, in the case of The Twee Gebroeders; (d) and though it was not understood that the prohibition extended to remote objects and uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared, that no proximate acts of war were in any manner to be allowed to originate on neutral ground; and for a ship to station herself within the neutral line, and send out her boats on hostile enterprises, was an act of hostility much too immediate to be permitted. No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence. The neutral is to carry himself with perfect equality between both belligerents, giving neither the one nor the other any advantage; and if the

respect due to neutral territory be violated by one party, *119 without being promptly punished by just animadversion, it would soon provoke a similar treatment from the other party, and the neutral ground would become the theatre of war.(e)1

(a) Mr. Jefferson's Letter to Mr. Ternant, of 15th May, 1793.

(b) 5 Rob. Rep. 373.

(c) Mr. Randolph's Circular to the Governors of the several States, April 16th, 1795. The American commissioners to the court of France, (Benjamin Franklin, Silas Deane and Arthur Lee,) in their circular letter in 1777, to the commanders of American armed vessels, carried very far the extension of neutral protection, when they applied it indiscriminately to all captures "within sight of a neutral coast." Diplomatic Correspondence, by J. Sparks, vol. ii. 110. Vide supra, Lecture II. (d) 3 Rob. Rep. 162.

(e) When Don Miguel, in 1828, ascended the throne of Portugal, by a vote of the

i By a treaty, ratified July 4, 1850, between the United States and Great Britain, these

If a belligerent cruiser inoffensively passes over a portion of water lying within neutral jurisdiction, that fact is not usually considered such a violation of the territory as to affect and invalidate an ulterior capture made beyond it. The passage of ships over territorial portions of the sea, is a thing less guarded than the passage of armies on land, because less inconvenient, and permission to pass over them is not usually required or asked. To vitiate a subsequent capture, the passage must at least have been expressly refused, or the permission to pass obtained under false pretences.(a)

The right of a refusal of a pass over neutral territory to the troops of a belligerent power, depends more upon the inconvenience falling on the neutral state, than on any injustice committed to the third party, who is to be affected by the permission or refusal. It is no ground of complaint against the intermediate neutral state, if it grants a passage to belligerent troops, though inconvenience may thereby ensue to the adverse belligerent. It is a matter resting in the sound discretion of the neutral power, who may grant or withhold the permission, without any breach of neutrality.(b) No belligerent power can claim the right of passage through a neutral territory, unless founded upon a previous treaty, and it cannot be granted by a neutral, where there is no antecedent treaty, unless an equality of privilege be allowed to both belligerents. This is the reasonable and just rule to be deduced from the opinions of jurists and the conventional law of modern nations.(c)

Portuguese Cortes, in violation of the title by succession of his niece, Donna Maria, England declared herself neutral as between those claimants, in their domestic quarrel for the crown. Having declared her neutrality, England maintained it with fidelity and vigor. She would not allow any warlike equipments by either party in her ports; and when an armament had been fitted out in disguise, and sailed from Plymouth, in support of the claims of Donna Maria, England sent a naval force, and actually intercepted the Portuguese armament in its destination to the island Terceira. (a) The Twee Gebroeders, 3 Rob. Rep. 336.

(b) Grotius, b. 2, c. 2, sec. 13, n. 4. Vattel, b. 3, c. 7, sec. 119, 123, 127. Sir William Scott, 3 Rob. Rep. 353.

(c) Grotius, b. 3, c. 7, sec. 2, 3. Vattel, b. 3, c. 7, sec. 126. Manning's Commentaries, 182-186. Within a few years after the expulsion of the Tarquins, the Romans,

powers engaged that neither would obtain exclusive control over a ship-canal which might be made between the Atlantic and Pacific oceans, by way of the River San Juan de Nicaragua, and guaranteed the neutrality of the canal.

*120 * Bynkershoek (a) makes one exception to the general inviolability of neutral territory, and supposes that if an enemy be attacked on hostile ground, or in the open sea, and flee within the jurisdiction of a neutral state, the victor may pursue him dum fervet opus, and seize his prize within the neutral state. He rests his opinion entirely on the authority and practice of the Dutch, and admits that he had never seen the distinction taken by the publicists, or in the practice of nations. It appears, however, that Casaregis, and several other foreign jurists mentioned by Azuni, (b) held a similar doctrine. But D'Abreu, Valin, Emerigon, Vattel, Azuni and others maintained the sounder doctrine, that when the flying enemy has entered neutral territory, he is placed immediately under the protection of the neutral power. The same broad principle that would tolerate a forcible entrance upon neutral ground or waters, in pursuit of the foe, would lead the pursuer into the heart of a commercial port. There is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. (c) The neutral border must not be used as a shelter for making preparations to renew the attack; and though the neutral is not obliged to refuse a passage and safety to the pursuing party, he ought to cause him to depart as soon as possible, and not permit him to lie by and watch his opportunity for further contest. This would be making the neutral country directly auxiliary to the war, and to the comfort and support of one party. In the case of The Anna, (d) Sir William Scott was inclined to agree with Bynk

under the auspices of the Consul, Spurius Cassius, concluded a league with the thirty cities or states of Latium; and one article was, that neither party should give to each other's enemies a passage through their lands. Dionysius, b. 6, sec. 95. Niebuhr's History of Rome, vol. ii. 28.

(a) Q. J. Pub. b. 1, c. 8.

(b) Maritime Law, vol. ii. 223, edit. N. Y.

(c) Vattel, b. 3, c. 7, sec. 133. 1 Emerigon, Traité des Ass. 449. Azuni, vol. ii. 223. It was observed by the American Secretary of State, (Mr. Webster,) in the diplomatic correspondence between him and the British minister, (Lord Ashburton,) relative to the case of the steamboat Caroline, on the Canadian border, and seemingly admitted by Lord Ashburton, that to justify a hostile entrance upon neutral territory, there must exist a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.

(d) 5 Rob. Rep. 385 d.

ershoek to this extent; that if a vessel refused to submit to visitation and search, and fled within neutral territory, to places which were uninhabited, like the little mud islands before the mouth of the Mississippi, and the cruiser, *121 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. Thecapture is done away; the property must be restored, notwithstanding it may actually belong to the enemy."

neutral ports.

A neutral has no right to inquire into the validity Prizes of a capture, except in cases in which the rights of brought into neutral jurisdiction were 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. (b) 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 the property of its own subjects, illegally cap- *122 tured; and this is done, says Valin, (d) by way of compensation for the asylum granted to the captor and his prize.

(a) The Vrow Anna Catharina, 5 Rob. Rep. 15.

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

(d) Com. tom. ii. 274.