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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. It was declared judicially in England, in the case of the Twee Gebroeders; 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, without being promptly punished by
a Mr. Randolph's Circular to the Governors of the several states, April 16th, 1795. The American Commissioners to the Court of France, (Messrs. 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. 2. 110. Vide Supra, sec. 2.
b 3 Rob. 162.
just animadversion, it would soon provoke a similar treatment from the other party, and the neutral ground would become the theatre of war.a
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 permision 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.b
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.
a When Don Miguel, in 1828, ascended the throne of Portugal by a vote of the 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 vigour. 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.
b The Twee Gebroeders, 3 Rob. 336.
e Grotius, b. 2. c. 2. sec. 13. Vattel, b. 3. c. 7. sec. 119. 123. 127. Sir William Scott, 3 Rob. 353.
Bynkershoeck 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, held a similar doctrine. But d'Abreu, Valin, Emerigon, Vattel, Azuni, and others, maintain 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 pusuer 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. 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 pursued party, he ought to cause him to depart as soon as possible, and not 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, Sir William Scott was inclined to agree with Bynkershoeck 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
a Q. J. P. b. 1. ch. 8.
b Maritime Law, vol. 2. 223. edit. N. Y.
c Vattel, b. 3. c. 7. sec. 133. 1 Emerig. Traité des Ass. 449. Azuni vol. 2, 223.
d 5 Rob. 365.
mouth of the Mississippi, and the cruiser, 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," that when the fact is established, it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding that it may actually belong to the enemy.
A neutral has no right to inquire into the validity of a capture, except in cases in which the rights of 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. 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. 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
a The Vrow Anna Catharina, 5 Rob. 15.
b The Arrogante Barcelones, 7 Wheaton, 496.
Ordinance of Neutrality, August 7, 1803. art. 18. La Amistad de Rues, 5 Wheaton, 390.
c 3 Rob. 162. note. Case of the Etrusco. VOL. I.
own subjects, illegally captured; and this is done, says Valin, by way of compensation for the asylum granted to the captor and his prize. It has been held, in this country, that foreign ships, offending against our laws, within our jurisdiction, may be pursued and seized upon the ocean, and rightfully brought into our ports for adjudication."
The government of the United States was warranted by the law and practice of nations, in the declarations made in 1793, of the rules of neutrality, which are particularly recognised as necessary to be observed by the belligerent powers, in their intercourse with this country. These rules were, that the original arming or equipping of vessels in our ports, by any of the powers at war, for military service, was unlawful; and no such vessel was entitled to an asylum in our ports. The equipment by them of government vessels of war, in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful. The equipment by them of vessels fitted for merchandise and war, and applicable to either, was lawful; but if it were of a nature solely applicable to war, it was unlawful. And if the armed vessel of one nation should depart from our jurisdiction, no armed vessel, being within the same, and belonging to an adverse belligerent power, should depart until twenty-four hours after the former, without being deemed to have violated the law of nations. Congress have repeatedly, by statute, made suitable provision for the support and due observance of similar rules of neutrality, and given sanction to the principle of them, as being
a Com. tom. 2. 274.
b 11 Wheaton, 42. The Marianna Flora.
c Vattel, b. 3. sec. 104. Wolfius, sec. 1174. Austrian Ordinance of Neutrality, August 7, 1803.
d Instructions to the Collectors of the Customs, Mr. Jefferson's Letters to Mr. Genet, of 5th and
August 4th, 1793. 17th June, 1793.
His Letter to Mr. Morris, of 16th August, 1793. Mr. Pickering's
Letter to Mr. Pinckney, Jan. 16th, 1797. His Letter to M. Adel, Jan. 20th, 1796.