neutral ter- which can hardly be considered an innocent passage, ritory. such as one nation has a right to demand from another; and, even if it were such an innocent passage, is one of those imperfect rights, the exercise of which depends upon the consent of the proprietor, and which cannot be compelled against his will. It may be granted or withheld, at the discretion of the neutral State; but its being granted is no ground of complaint on the part of the other belligerent power, provided the same privilege is granted to him, unless there be sufficient reasons for withholding it.1

The extent of the maritime territorial jurisdiction of every State bordering on the sea has already been described.2

§ 9. Cap

the mari

diction, or by vessels stationed

hovering on

Not only are all captures made by the belligerent tures within cruisers within the limits of this jurisdiction absolutely time territo- illegal and void, but captures made by armed vessels rial jurisstationed in a bay or river, or in the mouth of a river, or in the harbor of a neutral State, for the purpose of within it, or exercising the rights of war from this station, are also the coasts. invalid. Thus, where a British privateer stationed itself within the river Mississippi, in the neutral territory of the United States, for the purpose of exercising the rights of war from the river, by standing off and on, obtaining information at the Balize, and overhauling vessels in their course down the river, and made the capture in question within three English miles of the alluvial islands formed at its mouth, restitution of the captured vessel was decreed by Sir W. Scott. So, also, where a belligerent ship, lying within neutral territory, made a capture with her boats out of the neutral territory, the capture was held to be invalid; for though the hostile force employed was applied to the captured vessel lying out of the territory, yet no such use of a neutral territory for the purposes of war is to be permitted. This prohibition is not to be extended to remote uses, such as procuring provisions and refreshments, which the law of nations universally tolerates; but no proximate acts of

1 Vide ante, Pt. II. ch. 4, § 12, p. 253. Vattel, Droit des Gens, liv. iii. ch. 7, §§ 119-131. Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, § 13. Sir W. Scott, Robinson's Adm. Rep. vol. iii. p. 353.

2 Vide ante, Pt. II. ch. 4, §§ 6-8, pp. 233-236.

war are in any manner to be allowed to originate on neutral ground.1

§ 10. Ves

into the

ritory, and

Although the immunity of the neutral territory from the exercise of any act of hostility is generally admitted, sels chased yet an exception to it has been attempted to be raised neutral terin the case of a hostile vessel met on the high seas and there cappursued; which it is said may, in the pursuit, be chased tured. within the limits of a neutral territory. The only text writer of authority who has maintained this anomalous principle is Bynkershoek. He admits that he had never seen it mentioned in the writings of 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.”3 (a)

1 The Anna, Nov. 1805. Robinson's Adm. Rep. vol. v. p. 373. The Twee Gebroeders, July, 1800. Vol. iii. p. 162.

2 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, Pt. I. c. 4, art. 1. Valin, Traité des Prises, ch. 4, § 3, No. 4, art. 1. D'Habreu, Sobre las Prisas, Pt. I. ch. 4, § 15.

3 Robinson's Adm. Rep. vol. v. p. 15. The Vrow Anna Catharina.

(a) [A case of violation of neutral territory occurred in the destruction, in the harbor of Fayal, in September, 1814, of the American privateer General Armstrong, by an English squadron. Reclamations, founded on it, were made against

11. Claim

on the ground of

neutral

territory must be

Though it is the duty of the captor's country to make restitution of the property thus captured within violation of the territorial jurisdiction of the neutral State, yet it is a technical rule of the prize courts to restore to the indisanctioned vidual claimant, in such a case, only on the application by thene 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.1

tral State.

tution by

§ 12. Resti- Where a capture of enemy's property is made within the neutral neutral territory, or by armaments unlawfully fitted out State of pro- within the same, it is the right as well as the duty of tured within the neutral State, where the property thus taken comes its jurisdiction, or into its possession, to restore it to the original owners.

perty cap

the government of Portugal, which were, by the 2d article of the Treaty of 26th of February, 1851, (Treaties of the United States, 1854, p. 92,) agreed to be submitted to the arbitration of a sovereign, potentate, or chief of some nation in amity with both the high contracting parties. Under this provision, Louis Napoleon, the President of the French Republic, was selected as arbitrator. There is some discrepancy between the American statement and the summary of facts on which the award proceeds. The Prince President, however, in pronouncing that no indemnity was due from Portugal, does not deny the responsibility of a neutral to make compensation to a belligerent, whose property has been captured or destroyed within its jurisdictional limits by the opposing belligerent; but he bases his decision on the assumed fact, that the American commander had not applied, from the beginning, for the intervention of the neutral sovereign; that by having recourse to arms, to repel an unjust aggression of which he pretended to be the object, he had himself, failed to respect the neutrality of the territory of the foreign sovereign, and had thereby released that sovereign from the obligation to afford him protection by any other means than that of pacific intervention; and that the Portuguese government could not be held responsible for the result of the collision which took place, in contempt of its rights of sovereignty, and in violation of the neutrality of its territory, and without the local officers being required, in proper time, to grant the necessary aid and protection. Cong. Doc. 32d Cong. 1st Sess. H. Rep. Ex. Doc. No. 53. 32d Cong. 2d Sess. Senate Ex. Doc. No. 24. See Rev. Etr. et Fr. tom. vii. p. 751, for the case of the French ships of war captured by the British in 1759, within the jurisdiction of Portugal, and restored on the demand of the Marquis Pomballos.]

1 Robinson's Adm. Rep. vol. iii. Note. Case of the Etrusco. Wheaton's Rep. vol. iii. p. 447. The Anne.

:

1

violation of

Chambers.

This restitution is generally made through the agency otherwise in of the courts of admiralty and maritime jurisdiction. its neutralTraces of the exercise of such a jurisdiction are found ity. at a very early period in the writings of Sir Leoline Jenkins, who was Judge of the English High Court of Admiralty in the reigns of Charles II. and James II. In a letter to the king in Captures council, dated October 11, 1675, relating to a French within the places called privateer seized at Harwich with her prize, (a Hamburg the King's vessel bound to London,) Sir Leoline states several questions arising in the case, among which was, "Whether this Hamburger, being taken within one of your Majesty's chambers, and being bound for one of your ports, ought not to be set free by your Majesty's authority, notwithstanding he were, if taken upon the high seas out of those chambers, a lawful prize. I do humbly conceive he ought to be set free, upon a full, and clear proof that he was within one of the king's chambers at the time of the seizure, which he, in his first memorial, sets forth to have been eight leagues at sea, over against Harwich. King James (of blessed memory) his direction, by proclamation, March 2, 1604, being that all officers and subjects, by sea and land, shall rescue and succor all merchants and others, as shall fall within the danger of such as shall await the coasts, in so near places to the hinderance of trade outward and homeward; and all foreign' ships, when they are within the king's chambers, being understood to be within the places intended in those directions, must be in safety and indemnity, or else when they are surprised must be restored to it, otherwise they have not the protection worthy of your Majesty, and of the ancient reputation of those places. But this being a point not lately settled by any determination, (that I know of, in case where the king's chambers précisely, and under that name, came in question,) is of that importance as to deserve your Majesty's, declaration and assertion of that right of the crown by an act of State in council, your Majesty's coastsbeing now so much infested with foreign men of war, that there will be frequent use of such a decision."

Whatever doubts there may be as to the extent of the territorial jurisdiction thus asserted, as entitled to the neutral immu

1 Life and Works of Sir L. Jenkins, vôl. ii. P. 727.

jurisdiction

along the coasts and

within the bays and rivers.

nity, there can be none as to the sense entertained by this eminent civilian respecting the right. and the duty of the neutral sovereign to make restitution where his territory is violated. Extent of When the maritime war commenced in Europe, in the neutral 1793, the American government, which had determined to remain neutral, found it necessary to define the extent of the line of territorial protection claimed by the United States on their coasts, for the purpose of giving effect to their neutral rights and duties. It was stated on this occasion, that governments and writers on public law had been much divided in opinion as to the distance from the seacoast within which a neutral nation might reasonably claim a right to prohibit the exercise of hostilities. The character of the coast of the United States, remarkable in considerable parts of it for admitting no vessel of size to pass near the shore, it was thought would entitle them in reason to as broad a margin of protected navigation as any nation whatever. The government, however, did not propose, at that time, and without amicable communications with the foreign powers interested in that navigation, to fix on the distance to which they might ultimately insist on the right of protection. President Washington gave instructions to the executive officers to consider it as restrained, for the present, to the distance of one sea league, or three geographical miles, from the sea-shores. This distance, it was supposed, could admit of no opposition, being recognized by treaties between the United States, and some of the powers with whom they were connected in commercial intercourse, and not being more extensive than was claimed by any of them on their own coasts. As to the bays and rivers, they had always been considered as portions of the territory, both under the laws of the former colonial government and of the present union, and their immunity from belligerent operations was sanctioned by the general law and usage of nations. The 25th article of the treaty of 1794, between Great Britain and the United States, stipulated that "neither of the said parties shall permit the ships or goods belonging to the citizens or subjects of the other, to be taken within cannon shot of the coast, nor in any of the bays, ports, or rivers, of their territories, by ships of war, or others, having commissions from any prince, republic, or State whatever. But in case it should so happen, the party whose territorial rights shall thus have been