making preparations to renew the attack; and though the neutral is not obliged to refuse a passage and safety to the pursuing party, he ought to cause him to depart as soon as possible, and not permit him 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, (d) Sir William Scott was inclined to agree with Bynkershoek 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 121 little mud islands before the 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, (a) "that when the fact is established, it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding 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. (b) 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. (c) If any complaint is to be made

the case of the steamboat Caroline, on the Canadian border, and seemingly admitted by Lord Ashburton, that, to justify a hostile entrance upon neutral territory, there must exist a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.

(d) 5 C. Rob. 373, 385, d.

(a) The Vrow Anna Catharina, 5 C. Rob. 15.

(b) The Arrogante Barcelones, 7 Wheaton, 496; The Austrian Ordinance of Neu. trality, August 7th, 1808, art. 18; La Amistad de Rues, 5 Wheaton, 390. (c) Case of the Etrusco, 3 C. Rob. 162, note. Ante, 117, n. 1.]

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

own subjects, illegally captured; and this is done, says *122 Valin, (a) 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. (b)1

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 were particularly recognized as necessary to be observed by the belligerent powers, in their intercourse with this country. (c) 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

(a) Comm. ii. 274.

(b) The Marianna Flora, 11 Wheaton, 42.

(c) Vattel, b. 3, sec. 104; Wolfius, sec. 1174; Austrian Ordinance of Neutrality, August 7th, 1803; Cours de Droit Public, par M. Pinheiro-Ferreira, ii. 44-47.

1 Ante, 117, n. 1; Historicus, Int. Law, both gave opinions that the seizure, as 159. it was not belligerent, and as the vessel was not under the suspicion of a piratical condition, was illegal, and that the privilege of the flag was the privilege of the state. June 8, 1858, the Cagliari and crew were given up to the British government, upon their earnest remonstrances, and by them restored to Sardinia. The Neapolitan appellate court afterward pronounced the seizure rightful, on the ground that the vessel had been engaged in mixed acts of war and piracy, with the fault of the master and crew. Ann. Reg. 1858, pp. 63, 181; Wheat. Dana's note 240; Wheat. Lawrence's note 84; Dr. Abdy (Kent, 331, 332) thinks this qualifies the case of the Marianna Flora.

1 In June, 1857, the Cagliari, a Sardinian mail steamer, plying between Genoa and Tunis, was seized by armed men and directed to a small island where were confined some Neapolitan prisoners. These were released and taken on board, and the vessel was directed to the coast of Naples. There the armed men and the released prisoners landed, with the intent to promote an insurrection, and abandoned the vessel. The master at once set sail for Naples under the Sardinian flag, but was captured by a Neapolitan cruiser on the high seas. The prize court at Naples condemned the vessel, and the government held the master and crew, including two Englishmen, as prisoners of war. Dr. Twiss and Dr. Phillimore

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. (d) 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, *123 as being *founded in the universal law of nations. It is

declared to be a misdemeanor for any citizen of the United States, within the territory or jurisdiction thereof, to accept and exercise a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, colony, district, or people, with whom the United States are at peace; or for any person, except a subject or citizen of any foreign prince, state, colony, district, or people, transiently within the United States, on board of any foreign armed vessel, within the territory or jurisdiction of the United States, to enlist or enter himself, or hire or retain another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or mariner, or seaman; or to fit out and arm, or to increase or augment the force of any armed vessel, with intent that such vessel be employed in the service of any foreign power at war with another power with whom we are at peace; or to begin, or set on foot, or provide, or prepare the means for any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people with whom we are at peace; or to hire or enlist troops or seamen for foreign military or naval service; or to be concerned

(d) Instructions to the Collectors of the Customs, August 4th, 1793. Mr. Jefferson's Letters to M. Genet, of 5th and 17th June, 1793; his Letter to Mr. Morris, of 16th August, 1793; Mr. Pickering's Letter to Mr. Pinckney, January 16th, 1797; his Letter to M. Adet, January 20th, 1796. [Post, 124, n. 1.]

in fitting out any vessel to cruise or commit hostilities in foreign service against a nation at peace with us; and the vessel, in this latter case, is made subject to forfeiture. The President of the United States is also authorized to employ force to compel any foreign vessel to depart, which, by the law of nations, or by treaty, ought not to remain within the United States, and to employ the public force generally in enforcing the observance of the duties of neutrality prescribed by law. (a) In the case of the Santis

(a) Acts of Congress of 5th June, 1794, and 20th April, 1818, c. 83. By an act of Congress of March 10th, 1838, c. 31, the provisions of the act of 1818 were enlarged and applied to any military expedition or enterprise against the territory of any foreign prince or state, or of any colony, district, or people, conterminous with the United States, and with whom they are at peace. Great Britain by act of Parlia ment of 59 Geo. III., called the Foreign Enlistment Act, in like manner prohibited enlistments and equipments within the king's dominions, for warlike purposes in foreign states.

1 United States v. Kazinski, 2 Sprague, 7; 18 Law Rep. 254; 7 Op. Att.-Gen. 367; ante, 117, n. 1. The act of 1838, mentioned in note (a), expired by limitation at the end of two years.

The result of the controversy between the United States and England as to rebel privateers built and fitted out in English ports, has been to establish principles of dealing, at least between the two countries in question, which England had previously insisted did not belong to international law, but depended on municipal regulations, like the act referred to in the text. The principles are embodied in the following rules which were agreed to be taken as applicable to the case before the board of arbitration on the Alabama claims; but the protestation of England as to the principles in force at the time the claims arose, should be noticed.

"Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.

"Her Britannic Majesty has commanded her High Commissioners and Plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I. arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provi sion for the future, agrees that in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's Gov

sima Trinidad, (b) it was decided, that captures made by a vessel so illegally fitted out, whether a public or private armed ship, were torts, and that the original owner was entitled to restitution, if the property was brought within our jurisdiction; but that an illegal outfit did not affect a capture made after the cruise, to which the outfit had been applied, had terminated. The offence was deposited with the voyage, and the delictum ended with the termination of the cruise. (c)

*

Though a belligerent vessel may not enter within neutral jurisdiction for hostile purposes, she may, consistently with a state of neutrality, until prohibited by the neutral power, bring her prize into a neutral port, and sell it. (d) The neutral *124 power is, however, at liberty to refuse this privilege, provided the refusal be made, as the privilege ought to be granted, to both parties, or to neither. The United States, while a neutral power, frequently asserted the right to prohibit, at discretion, the sale within their ports of prizes brought in by the belligerents; and the sale of French prizes was allowed as an indulgence merely, until it interfered with the treaty of England of 1794, in respect to prizes made by privateers. (a) In the opinion of some jurists, it is more consistent with a state of neutrality, and the dictates of true policy, to refuse this favor; for it (b) 7 Wheaton, 283.

(c) The seamen of a neutral nation may serve on board of a commercial vessel of a belligerent power, or be employed in a contraband trade on board of a neutral vessel, without being liable to punishment personally, by the municipal laws of his own country, or by the law of nations. Opinions of the Attorneys-General of the United States, i. 35.

(d) Bynk. b. 1, c. 15; Vattel, b. 3, c. 7, sec. 132; Martens, b. 8, c. 6, sec. 6; Hopner v. Appleby, 5 Mason, 77.

(a) Instructions to the American Ministers to France, July 15th, 1797. Mr. Pickering's Letters to M. Adet, May 24th, and November 15th, 1796. His letter to

ernment had undertaken to act upon the principles set forth in these rules.

"And the High Contracting Parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."

For discussions of the question, see Wheat. Dana's note 215; Bemis on American Neutrality, Boston: Little, Brown, & Co., 1866; Mountague Bernard on Neutrality of Great Britain during the

American Civil War, London: Longmans, 1870; Historicus, Int. Law, 151. See also the great case under the British act, The Alexandra, Attorney-General v. Sillem, London: Eyre & Spottiswoode, 1863, and letter of Earl Russell to the Lords of the Treasury, ib. vol. 2, app. i.; s. c. 2 Hurlst. & C. 431; and a very important case under the American act, The Meteor, Boston: Little, Brown, & Co., 1869, stated briefly, 3 Am. Law Rev. 234; 1 id. 401.