to him, it is hard to see on what ground he can be prohibited from dealing with his own. But it is now usual for the neutral state to restrain belligerents from bringing their prizes into its harbours, except in cases of danger or of want of provisions, and then for as short a time as the circumstances of the case will allow; and it is impossible not to feel an ardent wish that a practice at once wholesome and consistent with principle may speedily be transformed into a duty.2 Duty of a state to procure reinjuries neutral dress for done to a territory. § 27. It follows from the fact of a violation of the sovereignty of a nation being an international wrong, that the injured country has the right of demanding redress; and the obligation under which a neutral state lies to prevent infraction of its neutrality would belligerent seem to bring with it the duty of enforcing such within its redress in all cases in which the state would act if its own dignity and interests were alone affected. Its duty cannot be less than this, because quiescence under any act, which apart from the interests of the belligerent would not be permitted, is the concession of a special favour to his enemy; and it cannot be more, because no one has a right to expect another to look upon a treaty made before 2 Denmark laid down the rule the matter. to incur greater inconvenience or peril for him in their common quarrel than a man actuated by the ordinary motives would undergo on his own account. Practice in A state is supposed not to allow open violations of its territory to take place without exacting reparation; it is therefore expected to demand such reparation in the interest of the belligerent who may have received injury at the hands of his enemy within the neutral jurisdiction. And as from the exclusive force of the will of a sovereign, all acts contrary to it done within his dominions are void, the redress which it is usual to enforce consists in a replacement in its anterior condition, so far as may be possible, of anything affected by the wrongful act. Thus, when in 1864 the Confederate cruiser Florida was seized in the harbour of Bahia by the United States' steamer Wachusett, the Brazilian Government immediately demanded reparation from the Cabinet at Washington. The latter was unable to restore the vessel, which had foundered in Hampton Roads, but it surrendered the crew, and offered a more special satisfaction for the affront to Brazilian sovereignty by saluting the flag of the Empire at the spot where the offence had been committed, by dismissing the consul at Bahia, and by sending the captain of the Wachusett before a court-martial. Again, in 1863, the Chesapeake, a passenger boat plying between New York and Portland, was captured on its voyage by a small number of Confederate partisans, who had embarked at New York. She was pursued by an armed vessel belonging to the United States, which found her and seized her in British waters. Two men only were on board, the rest of the captors having deserted her, but a third prisoner was taken out of an English ship lying alongside. The United States surrendered the vessel and the men, and made an apology for the violation of territory of which its officers had been guilty.1 When protured in perty cap violation If an occasion offers, the neutral sovereign will take upon himself to undo the wrongful act of the belligerent. When property is captured in violation of neutralof neutrality, whether actually within the neutral ity returns territory, or by a vessel fitted out in a neutral port, neutral it will be seized on entering the neutral jurisdictions, tion. and will be restored to its original owner.2 The 1 Dana's Wheaton, note to § 430, gives the cases in detail. 2 Wheaton, Elem., pt. iv. chap. iii. § 12; Pando, tit. iii. sec. vii. 192; Hautefeuille, tit. vi. sect. ii. and tit. xiii. sect. i. 2; Ortolan, ii. 298; Phillimore, ii. § 157-8, § 327, and 372. Calvo, § 1248, limits the right of the neutral sovereign to cases of capture within his jurisdiction. 'When a captured vessel is brought, or voluntarily comes infra præsidia of the neutral power, that power has the right to inquire whether its own neutrality has been violated by the capture, and if so it is bound to restore the property.' La Estrella, iv Wheaton, 298. See also La Amistad de Rues, v Wheaton, 385; Talbot v. Janson, iii Dallas, 157; and the Betsey Cathcart, Bee. 292. Properly, whatever the municipal means employed, restoration ought in all cases to be effected, so far as the surrender to the belligerent is concerned, by an immediate act of the state. The wrong being solely international, all its consequences are international also; and in most countries restoration may made either by the state administratively, or by its courts judicially, Calvo, § 1080, Hautefeuille ubi sup. But the advan be to the jurisdic tage, when the property of individuals is involved, of a judicial investigation of evidence, generally throws such cases into the lap of the courts. When restoration is craved on the ground of capture within the neutral territory, the belligerent government is expected itself to prosecute the suit-the individual owner will not be heard; and even a consul is not clothed with sufficient representative character to Mode in appear on behalf of his state. which restitution is Note to the Twee Gebroeders, effected. iii Rob. 162; La Santissima Trinidad, vii Wheaton, 341; The Anne, iii Wheaton, 446. The latter part of the rule is undoubtedly logical. Capture in neutral waters as between enemies is deemed to all intents and purposes rightful. If the neutral sovereign omits or declines to put in a claim, the property is condemned jure belli to the captors.' Anne, iii Wheaton, 447; and see Bluntschli, § 786. But when the capture has been the result of a remoter breach of neutrality on the part of the offending belligerent, as by making neutral territory a base of operations, the private owner is allowed to claim in the courts of the United States. J. Story, speaking in 1822, said: 'If the question were entirely new it would deserve very grave con When it so returns after hav ing been infra pre sidia of the captor. Courts of the United States have gone so far as to hold that offending vessels may be pursued and captured upon the high seas.1 According to Wheaton it is doubtful whether the neutral will restore property, which has been once carried infra præsidia of the captor's country, and there regularly condemned in a competent court of prize;' but Ortolan justly urges that as the sovereign rights of a nation cannot be touched by the decision of a foreign tribunal, the consequences of such a decision cannot be binding upon it;2 and it may be sideration whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than by a direct interposition of the government itself. But the practice from the beginning of this class of cases, a period of nearly thirty years, has been uniformly the other way, and it is now too late to disturb it.' La Santissima Trinidad, vii Wheaton, 349. If the captured property has been carried into the jurisdiction of the belligerent whose subjects are the wrongdoers, his courts will do justice to the neutral state on application being made by it to them. Twee Gebroeders, ubi sup.; La Nostra Señora del Carmel contre la Vénus de Medicis; Pistoye et Duverdy, Traité des Prises Maritimes, i. 106; Ortolan, ii. 298. The practice is everywhere more or less erroneous theoretically. There can be no doubt that it is the government within whose territory the wrong has been done which ought to call into action its own courts in all instances in which the prize comes within its jurisdiction; and that the neutral state, when the property has been carried into the dominions of the belligerent, should confine itself to international means for obtaining restitution. 1 Hudson v. Guestier, vi Cranch, 284, overruling Rose v. Himely, iv Cranch, 279. These cases only involved breaches of municipal regulations; but they are generally held to admit of the application which is made of them in the text. 2 Wheaton, pt. iv. chap. iii. § 13; Ortolan, ii. 312. An incidental remark of J. Johnson, made while giving a decision in the Supreme Court of the United States, supports, and perhaps was the source of, Wheaton's opinion. The Arrogante Barcelones, vii Wheaton, 519. It has also been said that 'The sentence of a court of admiralty or of appeal in questions of prize binds all the world as to everything contained in it, because all the world are parties to it.' Penhallow v. Doane's Executors, iii. Dallas, 86. put still more generally that nothing performed mero motu by a wrongdoer in confirmation of his own wrongful act can affect the rights of others. a vessel been converted into sioned ship of war. The case, however, stands differently when the When it is captured property is a ship which, before returning which has to the neutral port, has been furnished with a commission from the captor's sovereign. The Admiralty a commiscourts of the neutral may enquire whether the vessel is in fact commissioned;1 but so soon as it is proved. to be invested with a public character, though the right of the neutral state to expect redress for the violation of its sovereignty remains unaltered, its own right to apply the remedy is gone. The vessel has become by an accepted fiction, which no one nation can reject, part of the territory of the state from which the commission has issued. Its seizure would therefore be an act of war, and the neutral can only apply for satisfaction to the offending belligerent.2 1 L'Invincible, i Wheaton, 254. 2 It was contended on behalf of the United States before the Tribunal of Arbitration of Geneva, that Great Britain had a right to seize vessels fitted out in violation of her neutrality on entry into her ports after receipt of a commission. State Papers, North America, 1872. Case of the United States, p. 55. Argument of the United States, p. 113. The argument seems to rest on the assumptions; 1. that the privilege of extraterritoriality accorded to foreign public vessels is revocable at will. 2. That a belligerent people not recognised as a nation does not possess the same belligerent privileges as a recognised state. The second of these assumptions raises a somewhat new point, and requires an argument which is foreign to the scope of this work, but of which |
