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into New York for adjudication." After stating that "the capture was made within the territorial limits of Spanish St. Domingo," Mr. Justice Story, speaking for the Supreme Court, said:
The claim of the Spanish Government for the violation of its neutral territory being thus disposed of, it is next to be considered, whether the British claimant can assert any title founded upon that circumstance? By the return of peace, the claimant became rehabilitated with the capacity to sustain a suit in the courts of this country; and the argument is, that a capture made in a neutral territory is void; and therefore, the title by capture being invalid, the British owner has a right to restitution. The difficulty of this argument rests in the incorrectness of the premises. A capture made within neutral waters is, as between enemies, deemed, to all intents and purposes, rightful; it is only by the neutral sovereign that its legal validity can be called in question; and as to him and him only, is it to be considered void. The enemy has no rights whatsoever; and if the neutral sovereign omits or declines to interpose a claim, the property is condemnable, jure belli, to the captors. This is the clear result of the authorities; and the doctrines rest on well established principles of public law.
There is one other point in the case which, if all other difficulties were removed, would be decisive against the claimant. It is a fact, that the captured ship first commenced hostilities against the privateer. This is admitted on all sides; and it is no excuse, to assert that it was done under a mistake of the national character of the privateer, even if this were entirely made out in the evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in selfdefence. The privateer had an equal title with herself to the neutral protection, and was in no default, in approaching the coast, without showing her national character. It was a violation of that neutrality which the captured ship was bound to observe, to commence hostilities, for any purpose, in these waters; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign.
The General Armstrong (2 Moore's International Arbitrations, p. 1071, decided in 1852) an American privateer, put into the port of Fayal, in the Azores, September 26, 1814, in order to obtain a supply of fresh . water. The next day a British squadron entered the port of Fayal. A fight ensued in which the privateer, after defending itself with great spirit, was abandoned and destroyed by its crew to prevent its falling into the hands of the British. The United States maintained that Portugal should have protected the American vessel and that, having failed to do so, it was liable in damages for its loss. Portugal refused to accept liability and, after much correspondence, the case was submitted in 1851 to the President of the French Republic, later the Emperor, Napoleon III. After stating the facts as he understood them, the Prince-President thus concluded:
The weakness of the garrison of the island, and the undoubted decay of the guns in the forts, rendered all armed intervention on his [the Portuguese governor's] part impossible;
Considering, in this state of things, that Captain Reid [the commander of the General Armstrong], not having applied, in the beginning, for the intervention of the neutral sovereign, and having had recourse to arms for the purpose of repelling an unjust aggression, of which he claimed to be the object, thus failed to respect the neutrality of the territory of the foreign sovereign, and released that sovereign from the obligation to afford him protection by any other means than that of a pacific intervention;
From which it follows that the Government of Her Most Faithful Majesty cannot be held responsible for the results of a collision, which took place in contempt of her rights of sovereignty, in violation of the neutrality of her territory, and without the local officers or lieutenants having been requested in proper time and warned to grant aid and protection to those to whom it was due;
Therefore, we have decided and we declare that the claim presented by the Government of the United States against Her Most Faithful Majesty has no foundation, and that no indemnity is due by Portugal, in consequence of the loss of the American brig, the privateer General Armstrong.
The case of the Florida (101 U. S. 37, decided in 1879), which happened during the Civil War, is very interesting. The Florida, a Confederate steamer, was lying in the port of Bahia, Brazil. On the night of October 7,1864, it was attacked and captured by the U. S. steamer Wachusett against the protest of the Brazilian authorities. The Florida was brought to Hampton Roads, where it was sunk by a collision. The commander of the Wachusett libelled the Florida as prize of war. On confirming the judgment of the District Court dismissing the case, the Supreme Court said, per Mr. Justice Swayne:
The legal principles applicable to the facts disclosed in the record are well settled in the law of nations, and in English and American jurisprudence. Extended remarks upon the subject are, therefore, unnecessary. See Grotius, De Jure Belli, b. 3, c. 4, sect. 8; Bynkershoek, 61, c. 8; Burlamaqui, vol. ii, pt. 4, c. 5, sect. 19; Vattel, b. 3, c. 7, sect. 132; Dana's Wheaton, sect. 429 and note 208; 3 Rob. Ad. Rep. 373; 5 id. 21; The Anne, 3 Wheat. 435; La Amistad de Rues, 5 id. 385; The Santissima Trinidad, 7 id. 283, 496; The Sir William Peel, 5 Wall. 517; The Adela, 6 id. 266; 1 Kent, Com. (last ed.), pp. 112, 117, 121.
Grotius, speaking of enemies in war, says: "But that we may not kill or hurt them in a neutral country, proceeds not from any privileges attached to their persons, but from the right of the prince in whose dominions they are."
A capture in neutral waters is valid as between belligerents. Neither a belligerent owner nor an individual enemy owner can be heard to complain. But the neutral sovereign whose territory has been violated may interpose and demand reparation, and is entitled to have the captured property restored.
The latter was not done in this case because the captured vessel had been sunk and lost. It was, therefore, impossible. * * *
The Brazilian Government was justified by the law of nations in demanding the return of the captured vessel and proper redress otherwise. It was due to its own character, and to the neutral position it had assumed between the belligerents in the war then in progress, to take prompt and vigorous measures in the case, as was done. The commander was condemned by the law of nations, public policy, and the ethics involved in his conduct.
The late Mr. W. E. Hall, thus comments upon the case:
The latter [the Cabinet at Washington] 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 [who had incited the attack], and by sending the captain of the Wachusett before a court-martial. (Hall's International Law, 4th ed., p. 644.)
In view of these authorities, comment on the action of the British cruisers in attacking and sinking the Dresden within Chilean waters would seem to be unnecessary. It may, however, be stated in conclusion that, in 1793, Great Britain demanded the return of the British ship Grange, seized in the Delaware Bay by the French cruiser L'Embuscade, and the United States complied with this request.
The consensus of opinion on this subject is thus stated in the Hague Convention concerning the Rights and Duties of Neutral Powers in Naval War, of October 18, 1907:
Article 1. Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality.
Article 2. Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war-ships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden.
Article 3. When a ship has been captured in the territorial waters of a neutral Power, this Power must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and crew, and to intern the prize crew.
If the prize is not in the jurisdiction of the neutral Power, the captor government, on the demand of that Power, must liberate the prize with its officers and crew.
It is believed that the last clause of Article 3 "implies," as specifically stated by the United States in adhering to the convention, "the duty of a neutral Power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction."
THE INTERNMENT OF GERMAN VESSELS IN THE UNITED STATES
It is of interest to refer to the number of German war vessels which have been interned in the United States since the outbreak of the war on August 1, 1914, and to explain the consequences of internment. As far as is known to the Journal, the following is a list of the interned vessels:
The Geier entered the port of Honolulu on October 15, 1914, and interned November 8, 1914. Its tender, the Locksun, entered Honolulu on October 16, 1914, and interned November 7, 1914.
The Cormoran arrived at Guam on December 14, 1914, and interned December 15, 1914.
The Print Eitel Friedrich entered the port of Newport News on March 10, 1915, and interned April 7, 1915.
The Kronprinz Wilhelm arrived at Newport News on April 11, 1915, and interned April 26, 1915.
The vessels of the Hamburg American Line and the North German Lloyd Line, lying in the port of New York, are merchant vessels, not ships of war, and they are not to be considered as interned, as internment is applied solely to ships of war.
Internment of ships is a recent comer in international law and made its formal, if not its first, appearance during the Russo-Japanese war. It was, however, well-recognized in land warfare, the most striking example being that of the disarmament of the French Army of the East, numbering 84,000 men, which, hard pressed by the victorious Germans, crossed the Swiss frontier early in 1871. The responsibility for the maintenance of the interned troops was not definitely settled at that time, and Hall, in commenting upon the incident, while pointing out the burden to neutrals which the support of these men involved, thought it would be unfair to tax their governments with the cost of their support, since such action would relieve its enemy of the expense of keeping them and the trouble of guarding them, while he was as safe from further danger from them as if they were prisoners of war. Hall suggested that such fugitives be released under a convention between the neutral and belligerent states, by which the latter should undertake not to employ them during the continuance of the war.1 The practice was regularized by the First Hague Peace Conference, which provided that belligerent troops which are received in neutral states shall be interned, and, unless there is a special convention on the subject, the neutral shall supply them with food, clothing, etc., the expenses of which shall be reimbursed at the conclusion of peace.2 These articles were carried over as Articles 11 and 12 of the convention respecting the rights and duties of neutral Powers and persons in war on land, adopted by the Second Hague Peace Conference in 1907. The indirect aid to the enemy pointed out by Mr. Hall, has, it will be seen, not been prevented by the provisions of the conference.
In the question of ships, the matter came up, as previously stated, in the Russo-Japanese war, primarily in connection with the right of vessels which had been injured in battle to remain and to repair in neutral ports the damage which they had received. The United States refused to allow the Lena, which put into San Francisco in 1904, to make repairs which would require months, even although they were not necessitated by injury in battle, because such extensive repairs amounted to a renovation of the vessel, which was inconsistent with neutrality. The Lena was therefore interned. Other Russian vessels which had entered American ports and sought to repair damages were refused permission and also interned, following the precedent of the Lena.3 At the conclusion of war, the vessels were allowed to depart.
It was natural, therefore, that the question of the internment of vessels of war should come up at the Second Hague Conference, which met within two or three years after this incident. This question was not quite so simple a matter, however, as the question of the internment of troops on land. For obvious reasons, a belligerent war ship could not be forbidden to enter neutral ports under penalty of immediate internment. It was necessary, therefore, first to agree upon the conditions and restrictions under which belligerent vessels might properly enter and remain in neutral ports.
The convention concerning the rights and duties of neutral Powers in naval war, adopted at the Second Hague Conference and ratified by many Powers, including Germany (November 27, 1909), and adhered
1 Hall, International Law, 4th Ed., p. 650.
1 Articles 57 and 58 of the annex to the convention respecting the laws and customs of war on land adopted by the First Hague Peace Conference on July 29, 1899. «Moore's International Law Digest, Vol. VII, pp. 992-994, 999-1000.