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Of Hostilities in a neutral Port or Territory.
WE only exercise the rights of war in our own territory, in the enemy's, or in a territory which belongs to no one. If we take the enemy in our own territory, and he has come to it without a safe conduct, there is nothing that prohibits our treating him in a hostile manner. To enter the territory of an enemy, and there to make captures, is permitted by the law of war. The same may lawfully be done on the high seas, as being the territory of no one. But he who commits hostilities on the territory of a friend to both parties, makes war upon the sovereign who governs there, and who by his laws coerces every violence, by whomsoever it may be committed. Therefore the Carthaginians, though with a superior naval force, did not dare to attack the Romans in a port of the king of Nwnidia, as Grotius (after Livy*) relates in 1. 3., De Jur. Bell, ac Pac. c. 4. § 8. n. 2., and Zouch, De Jur. Fee. part 2. § 9. Q. 7., transcribes it out of Grotius. Zouch there states some contrary arguments, but Grotius had already mentioned and refuted them.
But as all the publicists (without any exception that I know of) prohibit the use of force in the dominions of another, it deserves to be considered, whether the usage of nations and the edicts of our princesf and states^ are conformable to this opinion, and whether on this subject the right to pursue ought to be distinguished from the right to attack? To begin with the princes. Philip 11. king of Spaing in the nautical laws
* Lit, 1. 28. c. 17.
f The counts of Holland, who were the sovereigns of that province before the Dutch revolution. , T. ,
$ The states-general of the United Netherlands, and the provincial states of Holland. T.
§ Who was also count of Holland, and sovereign under different titles of the seventeen provinces of the Netherlands. T.
which he gave to the Belgians on the last day of October 1563, (tit. 1. § 27.) ordered, on pain of death, that no violence should be done on the sea, by reason of war or for any other cause, on his subjects or allies, or on foreigners, within sight from land or from a port. He therefore understood the dominion of the continent to be extended as far as the sight can reach from the shore, and there are authors who are of that opinion. But I have shewn this to be too vague, in the second chapter of my Dissertation de Dominio Maris, being of opinion that the dominion of land ends where the power of arms terminates. And that the states-general and the states of Holland were of the same opinion, I think I have sufficiently proved by the two decrees made concerning the salute at sea, quoted in the said chapter 2, and also in chapter 4.*
Certainly it is by no means lawful to attack or take an enemy in the port of a neutral who is in amity with both parties. If it be done, it is the duty of the neutral state to cause the thing taken to be restored, either at its own expense or at the expense of the injured party. That it should be done at the expense of the latter has been agreed by the twentysecond article of the treaty of peace between the commonwealth of England and the states-general of the 5th of April 1654, the twenty-first article of the treaty of peace between the king of England and the states-general of the 14th of September 1662 and again by the 29th article of the treaty of peace between the same powers of the 31st of July 1667. The same is stipulated by the forty-eighth article of the commercial treaty between the king of France and the states-general
j- The states of Holland decreed on the 3d of January 1671, that their ships of war should salute those of other sovereigns on their coasts within reach of the cannon of batteries and forts, precisely in such manner as the government of the country should require, leaving it entirely to its discretion to return or not the salute; adding, that every government is sovereign within its own jurisdiction, and every foreigner is a subject there. Bynk. de Dom. Mar. c. 2. On the 16th of May 1670 the same states decreed that the Danish fort of Croneborg situate on the shores of the sound in the Baltic sea, should be saluted in such manner as the king of Denmark should require. Ibid. c. 4. T.
of the 27th April 1662, but there is no mention made therein of the expenses being to be borne by the injured party, which appears to me to be very unjust, as it is the duty of the sovereign of the territory to revenge the injury done to himself; for it is an injury done to him to violate a port which is equally open to all his friends. And what if he who committed the violence goes away immediately? Is the individual, whose vessel, perhaps, has been taken, to make war at his own expense? Therefore the mention of the expense is properly omitted in the thirty-fifth article of the treaty of commerce which was made between the same powers on the 10th of August 1678, in the fortieth article of the treaty of commerce between the same of the 20th of September 1697, and again in the thirtyninth article of the treaty of commerce between the same of the 11th of April 1713, for later treaties are generally without any further examination copied from the former ones, as we have seen just now to have been the case with the English. Those articles of treaties between France and the statesgeneral only stipulate that the sovereign of the port, bay or river in which a prize shall be made from a friend, shall use his utmost endeavours that the captured property be fairly and justly restored. If it be the duty of the sovereign to use his utmost endeavours to effect that purpose, it follows that he must do it at his own expense, nay, by going to war, if other means are not sufficient. Such is the law which is observed among all nations, and there is no other reason for it than that it is not lawful to commit violence within the territory of another, and that ports, bays,* and rivers, are also within the territory of the sovereign of the country. Thus the grand duke of Tuscany, in the year 1695, caused the French,
* In the year 1793 the British ship Grange was captured by the French. frigate L'Ambuscade, in the waters of the bay of Delaware, and brought into the port of Philadelphia, to which she was bound. The British minister demanded her restitution of the government of the United States. In vain did the French minister, M. Ternant, allege that the bay of Delaware was an open sea, not subject to the exclusive jurisdiction of the American government. His arguments had no effect, and the Grange was very properly restored. T.
who had taken near the port of Leghorn a ship of the powers allied against France, who were friends to the grand duke, and carried her into that port, to restore her immediately; for, as I have said, the sea which is near to the ports of a sovereign is a part of his territory. These.principles may easily be applied to the following cases:
In the year 1639, while admiral van Tromp was blockading in the Downs the fleet of the Spaniards, who were in amity with England, the states-general, on the 21st and 30th of September 1639, issued decrees by which they ordered him " to destroy the Spanish fleet, without paying any regard to the harbours, roads, or bays of the kingdoms where it might be found, even though the English should make resistance," and the admiral immediately carried that order into execution, and was praised and approved for it by the states-general, as is commemorated by Aitzema in various places.*
This can hardly be defended, neither can the conduct of the English, who, on the 12th of August 1665, took some ships of our East India company, in the port of Bergen, in Norway,] not without great indignation in the Danes, whp repelled the English with all their might. In order, however, that the^ase of van Tromp may not be considered as too outrageous, two things are to be attended to; the one, that the English, in the year 1627, had taken out of Holland a ship of the king of France, then at war with England, but in amity with the states-general;^ the other, that the Spaniards themselves, in the year 1631, were charged with having committed hostilities against the ships of the states-general, in the ports of the king of Denmark, then a common friend to both, as I read in Aitzema.§ Otherwise, if nothing can be charged that gives just cause to exercise the right of retaliation,^ it is manifestly unjust to attack an enemy in the port of a common friend. And thus the states-general decreed in the year
* Aitz. 1.19. 1 Ibid. 1.45, 6, 7. * Ibid. L 7. 9.19.20 r§ Ibid. 1.11.
But see page 33, where our author justly contends that retaliation is only to be exercised directly against the enemy, and never through tht injury of a friend. "71
1623,* on a memorial of the English ambassador. The ships of the states-general had committed hostilities, against the ships of England, in the river Elbe, a neutral river. Great complaints were made on this subject, not only by the English, but by the Hamburghers, and various ambassadors of the Germanic empire.f As to the complaints of the English, they could easily have been silenced, by reminding them of what had happened the preceding year at Bergen, in Norway, but it was not so with the others, for this aggression was solely founded on the right of retaliation. Nor can it be doubted that the French acted very unjustly, when in the year 1693 they set fire to certain Dutch ships in the port of Lisbon, at that time neutral, which the king of Portugal would not either permit to be fired at nor to be taken away. This fact I assert from my own memory.
It might be more doubted, whether it is lawful to pursue in the heat of battle an enemy met with on the high seas, into a neutral river, station, port or bay? The weight of argument is in favour of permitting it, on taking certain precautions which I shall enumerate by and by. Such certainly was the opinion of the states-general in the year 16234 when they answered to the English ambassador that it was not lawful to commit violence in a neutral port, "with this understanding, however, that it was hoped his majesty would not take it amiss, if any Dunkirkers were met with on the high seas, that they might be pursued even along the king's coasts and into the king's ports." The same opinion of the states-general appears expressed in their decree of the 10th of October 1652,$ but so, however, as is very properly added in it, that the » castles of neutrals be spared, even though violence should be committed from them, and that the enemies also be spared, if they should have already entered the neutral ports. Both of these exceptions are right, for it is better to suffer within the dominions of another than to act, and if we act, we are to be very careful that the force used against pur enemy «hall not