is undoubtedly due in large measure to the situation of the United States as the most important power of European civilization remaining neutral in various European wars. It indicates, however, the effect which municipal law may have in creating new international law. CHAPTER IX. OBLIGATIONS OF VINDICATION. INTRODUCTORY Duties of vindication are necessitated by the failure of belligerent troops, warships or prize crews to observe their obligations as belligerents toward neutrals, and some of them also imply a failure on the part of the neutral state to perform its duties of prevention. Thus a neutral state is bound to prevent hostilities in its land or water territory, but if it fails in this it must perform its duty of vindication by interning troops, or restoring prizes captured in the course of such hostilities. Most of the obligations of this kind are specified in the Hague conventions, and consist of measures to be taken by the neutral state in case of violations of its territory by land forces, hostilities in its territorial waters by naval forces or violations of the right of asylum by belligerent warships or their prizes. There are a number of general requirements laid down for belligerent warships which a neutral is at liberty to modify by law. Thus a neutral state is permitted to vary the general rule demanding that all belligerent vessels be equally permitted to enter its ports, by forbidding such entrance to vessels which have violated its neutrality. It may also vary the twenty-four hour stay rule by municipal regulations, and the general rule permitting no more than three belligerent warships in a port at one time. The conventions also give a neutral power the right to grant asylum to belligerent prizes on condition that it sequestrate them, pending adjudication, but this provision was not ratified by the United States.* 2 1Hague Conventions, 1907, xiii, art. 9, Malloy, p. 2352. 2Ibid., xiii, arts. 12-14, 19. 3Ibid., xiii, art. 15. *Ibid., xiii, art. 23. This permission was a variation from the general rule laid down in articles 21 and 22 which forbade the giving of asylum to prizes except in cases of "unseaworthiness, stress of weather, or want of fuel or provisions," and even then only temporarily. The United States ratified the convention with a proviso excluding article 23, thereby recognizing it as neutral duty to refuse to permit prizes to be sequestrated in her ports. See Naval War College, International Law Situations, 1908, p. 76. It is interesting to note that the United States had specifically permitted the sequestration of prizes in a number of its early treaties. See International law in these cases imposes a belligerent duty but no corresponding neutral duty of vindication. The belligerent duty is for the benefit of the neutral and if the neutral indicates by local law that it does not care to avail itself of this benefit international law is unconcerned. These subjects therefore do not form obligations of vindication; they are rather exceptions to those obligations. Eliminating these exceptions, the duties of vindication recognized by the United States by treaty may be classified as (1) the internment of belligerent troops violating neutral territory," (2) the internment of belligerent warships violating the law of asylum, (3) the expulsion of belligerent warships after a twenty-four hour stay, subject to exceptions, (4) the detention of belligerent warships in accordance with the twenty-four hour interval rule, (5) the restoration of prizes captured in neutral waters or brought into neutral ports in violation of the law of asylum, and the internment of the prize crew. These are positive duties imposed upon the neutral state, and failure to perform them will furnish grounds for diplomatic complaint and demand for reparation by the injured belligerent. The performance of these duties involves an assertion of jurisdiction over foreign prizes, warships or armed forces, agencies which under ordinary circumstances are exempt from the jurisdiction of any sovereign but their own. It is therefore of importance to investigate the measures which the United States has taken for performing its duties of vindication by the exercise of this extraordinary jurisdiction. The subject may be conveniently divided into the three parts, (1) illegal prizes, (2) illegal treaties with France, 1778-1789, art. 17, p. 474; 1800-1809, art. 24, p. 504; Netherlands, 1782-1795, art. 5, p. 1245; Sweden, 1783-1799, revived 1816, 1827, art. 19, p. 1732; Prussia, 1785-1796, art. 19, 21, p. 1493; Great Britain, 1794-1807, art. 25, p. 604. Treaties with Tripoli, 1805, art. 17, p. 1792 and with Algiers, 1795-1815, art. 10, p. 3; 1815-1830, art. 18, p. 10, permitted United States vessels to sequestrate and sell prizes in their ports and forbade the sale of prizes taken by any of the Barbary states from the United States in a similar manner. Asylum to merchant vessels and in most cases to warships and privateers also when necessitated through "stress of weather or pursuit of pirates or enemies" is provided for in treaties with twenty-five countries, a few of which are still in force. "Hague Conventions, 1907, v, arts. 11-12, Malloy, p. 2300. "Ibid., xiii, arts. 12, 13. Ibid., xiii, art. 8. Ibid., xiii, arts. 3, 21, 24. acts of belligerent warships, (3) violations of land territory. The mere fact that these duties are contained in the Hague conventions, which are treaties and "the law of the land" would furnish ground for the assertion of jurisdiction by judicial and executive officers, but in some cases jurisdiction has been specifically conferred by statute, and in others it is necessary to consider the view which the courts and executive authorities have taken as cases have arisen. We will therefore consider the supplementary laws enacted for carrying out these obligations, and the rules laid down by the executive and judicial officers themselves in carrying them out. ILLEGAL PRIZES. The neutrality laws give the United States district courts a jurisdiction over captures made in the territorial waters of the country,10 and imply that a jurisdiction exists over prizes taken by privateers outfitted in the United States." This provision contained in the original neutrality act of 179412 was enacted as a result of Washington's address to congress of Dec. 31, 1793,13 in which he urged upon congress the enactment of neutrality acts, and also provisions ensuring a sufficient jurisdiction in the courts to carry out the duties of restoring illegal prizes. It seems probable that United States courts can assume jurisdiction over illegal prizes under their general admiralty and prize jurisdiction even in the absence of statute, as was in fact done in the cases of Glass vs. The Betsey11 and Talbot vs. Jansen,15 both of which came before the court before the passage of the first neutrality act. The view was emphatically stated in the case of the Estrella16 that the jurisdiction existed independently of statute. Furthermore, so far as the writer has been able to discover, there has never been a case before the court in which the capture was made in the territorial waters of the United States, and in which 10 Rev. Stat. Sec. 5287, Penal Code of 1910, sec. 14. 11 Rev. Stat. Sec. 5287, Penal Code of 1910, sec. 14, gives the President power to utilize the military forces of the country to "detain such ship or vessel (violating the neutrality of the United States) with her prize or prizes-in order to restore the prize or prizes in the cases to which restoration shall be adjudged." 12 Act. June 5, 1794, I stat. 381. 13 See Am. St. Pap., For. Rel., 1;31. 14 Glass vs. The Sloop Betsey, 3 Dall. 6, (1794). 15 Talbot vs. Jansen, 3 Dall. 133. 16 The Estrella, 4 Wheat. 298, (1819). therefore the jurisdiction explicitly conferred by statute would strictly apply. In all the cases the illegality of the prize has been based on an outfitting of the privateer, or augmenting of its forces, in the United States, prior to the capture. We may therefore safely assert that the jurisdiction exercised by United States courts while the country is neutral, over belligerent prizes, is not dependent on statute. The nature of the prize jurisdiction while the country is neutral has been discussed at length in a number of cases and with a remarkable concurrence of opinion. The court has always insisted that its jurisdiction does not extend over the question of prize or not prize. This is a matter solely within the authority of the prize courts of the belligerent country, and their determination is conclusive. The neutral's jurisdiction over prizes of war can only arise where (1) its own duty of vindicating its neutrality is involved, (2) where the capture was entirely without evidence of belligerent authorization or for other reason not within the belligerent's prize jurisdiction,18 or (3) where sal 17L'Invincible, I Wheat. 238, 261; McDonough vs. Dannery and the Ship Mary Ford, 3 Dall. 188; The Alerta, 9 Cranch, 359, (1815); The Estrella, 4 Wheat. 298. 18This situation occurs where the capture was so clearly unwarranted that the belligerent prize court can not legitimately assert a jurisdiction. There is of course room for difference of opinion in any case as to whether it could or could not, and the question virtually resolves itself into this Is the belligerent prize court's assertion of its own jurisdiction to be considered conclusive? In Glass vs. The Sloop Betsey, (3 Dall. 6, 1794) the supreme court upheld jurisdiction over a capture by a French privateer, apparently on the sole ground that being neutrally owned the vessel was not liable to condemnation in a French Prize court. It is doubtful whether such a jurisdiction would now be maintained. In Rose vs. Himely, (4 Cranch 241, 1808) the prize, owned by an American, Rose, was seized on the high seas near Cuba for breach of municipal regulations and after sale to Himely brought to Charleston. Here it was libeled by the original owner, Rose, and while in the custody of the United States District court, a French Prize court in Santa Domingo issued a decree of condemnation upon which Himely based his title. The majority of the court though disagreeing in reasons agreed that the Santa Domingo court lacked jurisdiction and consequently Himely had no title. Three justices denied its jurisdiction on the ground that actual custody of the prize was necessary. Two justices, including Chief Justice Marshall, held that captures on the high seas for breach of municipal regulations were contrary to international law and so conferred no jurisdiction upon the prize court of the capturing country. Justice Johnson dissented from the decision, |