that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful." The maritime territory of every state extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same state. The general usage of nations superadds to this extent of territorial jurisdiction, along all the coasts of the state (c), a distance of a marine league, the range formerly ascribed to cannon shot, from the shore. The range of modern projectiles has far outgrown the limit thus ascribed to the artillery of former times, but this definition of the territorial jurisdiction over the coastal waters is, notwithstanding, still maintained. Obviously the range of projectiles is no real test of the question of jurisdiction; for a case may well be imagined where, owing to the narrowness of a channel or to the great and ever increasing power of gunnery, the states divided by the channel could both send projectiles completely across it. In The Anna (d), a Spanish vessel captured by a British privateer near the mouth of the Mississippi, the vessel was claimed by the American ambassador in England, on the ground that the seizure had taken place within three miles of United States territory. It was proved that the capture had, in fact, been effected within three miles of some small mud islands forming a kind of portico to the main land. On this, Sir W. Scott decreed restitution; holding that the three mile limit must be reckoned from the islands, these being the natural appendages of the coast on which they bordered. "Captors," said his lordship, "must understand that they are not to station themselves in the mouth of a neutral river for the purpose of exercising the rights of war from that river; much less in the very river itself. They are not to be standing on and off, (c) Wheat. Int. Law, 2 Eng. ed. p. 237. overhauling vessels in their course down the river, and making the river as much subservient to the purposes of war as if it had been a river of their own country." Inclosed parts of the sea along the British coasts—that is, bays, called the "King's Chambers," cut off by lines drawn from one promontory to another-have immemorially been held to be within the British jurisdiction; and a similar jurisdiction is asserted by the United States over such bays on the American coasts. In The Twee Gebroeder (e), it was argued against the condemnation of the ship, that the capture was invalidated by the previous passage of the capturing vessel over neutral waters, animo capiendi; but Sir W. Scott held that the act of a war-vessel passing over neutral territory without violence was not considered a violation of the rights of that territory. In another case (f), a British cruiser stationed in neutral waters had sent boats off to, and had captured, some Dutch ships lying out of the jurisdiction; and the same eminent judge held that no proximate acts of war could be allowed to originate within neutral dominions, and he decreed restitution accordingly. The cases of The Chesapeake (g), The Wachusett (g), and The Caroline (h), may also be referred to in this connexion. The Franconia (Reg. v. Keyn) (i), tried in 1876 before thirteen learned judges, of whom seven held to one opinion, and six to another, raised the question of criminal jurisdiction over foreigners on foreign vessels within the three mile limit; and the judgment of Cockburn, L. C. J., in this case, is a highly instructive review of the authorities and statutes touching the three mile limit generally. This question of (e) (Capt. Northolt), 3 Rob. 336. (f) The Twee Gebroeder (Alberts), 3 Rob. 162. (g) Wheat. Int. Law, 2 Eng. ed. pp. 498-9. (h) Parl. Papers, 1843, Vol. LXI. See also The Grange (1793), Am. State Papers, Vol. I. p. 77. (i) L. R. 2 Exch. Div. 63. criminal jurisdiction, it may be here observed, has since been dealt with by 41 & 42 Vict. c. 73. But a capture within the neutral jurisdiction is not ipso facto void. It is good as between the belligerents, and can be called in question only by the aggrieved neutral state. On this subject Sir W. Scott declared that "it is a known principle of this (Admiralty) Court that the privilege of territory will not itself enure to the protection of property, unless the state from which that protection is due steps forward to assert the right" (j)-a doctrine also upheld by the United States Courts. But if the captured vessel shall at the outset have used force in its defence, the master will be deemed to have foregone his right of appeal to the protection of the neutral state (k). The neutral state, may, however, none the less claim restitution of the vessel—indeed, it is asserted that it is the duty of a neutral to do so—not by way of compensation to the unsuccessful belligerent, but in vindication of its own rights (7). Not only is it unlawful for a belligerent to engage in hostile acts within the dominions of neutral states, but it is also contrary to the law of nations for the commander of a belligerent vessel to enlist the subjects of such states to serve on his vessel, unless with the licence of their sovereign. And any such unlawful augmentation of forces will infect subsequent captures made by the vessel thus illegally reinforced. Belligerents are under the obligation to respect the municipal laws and proclamations of neutral states generally, but it will be more convenient to merge further (j) The Purissima Concepcion, 6 Rob. 45; The Anne, 3 Wheat. 447. See also The Sir Wm. Peel, 5 Wall. 585. (k) The General Armstrong, vide Cobbett's Cases, p. 162; The Anne, 3 Wheat. 435. (1) La Amistad de Rues, Cobbett's Cases, 190. reference to this and any other items of such obligation in the consideration of those neutral municipal laws themselves, viz., sub Neutral Rights and Obligations, p. 345, infra. (The subject of Admission of Belligerent Warships to Neutral Ports will be specially considered sub Neutral Rights and Obligations (m). As regards prisoners on board a belligerent vessel in neutral waters, vide p. 58, supra.) The special belligerent obligation with which we have now to deal is that of subjecting prizes to the adjudication of a properly constituted prize court of the captors. (m) Vide p. 375, infra. ADJUDICATION OF PRIZES (with a consideration of the Principles governing the Award of COSTS AND DAMAGES). In 1745, during the course of hostilities between this country and France, subjects of Prussia proceeded to employ neutral vessels to carry their own merchandise, whilst Prussian vessels loaded cargoes on account of France. On this, British cruisers intervened and seized fifty-one Prussian vessels thus engaged, and these vessels were subsequently condemned. By way of reprisal, the King of Prussia confiscated certain funds lent to the State by British subjects; and to report on questions arising out of the seizure and the consequent reprisal, a commission was appointed by the British Government. Amongst the findings of this commission were three which are material to the present consideration: viz. (1) That before appropriation there must be condemnation; (2) That the only tribunal competent to condemn is the court of the captor; and (3) That all proofs in the matter should, in the first instance, be taken from the vessel seized (n). The municipal laws of the European states commonly provide that prizes made by vessels cruising under their flag shall be brought into one of the national ports for adjudication; and condemnation can be adjudged only by a competent prize court of the captors. The court of an ally has no jurisdiction; but, on the other hand, a prize court of the captors (n) Vide Pitt Cobbett's summary of the case of The Silesian Loan: Leading Cases, p. 95. |