Prince within his Territory, without his permission, is a violation of his Rights of Sovereignty. Accordingly, if a foreign vessel of war should enter the harbour of an Independent State, and its Commander should enlist any of the Subjects of that State to serve on board his vessel, without the license of the Sovereign Power, it would be a violation of the Sovereignty of the State, and accordingly the augmentation of the force of a Belligerent vessel of war in the harbour of a Neutral State without the license of the Sovereign Power, will be a breach of the Law of Nations. It has therefore been held by Courts which administer the Law of Nations, that such an unlawful augmentation of the force of a Belligerent vessel of war in the port of a Neutral Nation will infect every capture made during the voyage, upon which she is engaged with the character of a Maritime tort, which the Neutral Nation is empowered to redress, if the Belligerent vessel should bring any capture within the Territory of the Neutral Nation. A question of this kind came before the Supreme Court of the United States, on appeal from the District Court of Virginia, in reference to the cargo of a Spanish vessel, which had been captured by two Belligerent cruisers commissioned by the de facto Government of Buenos Ayres. Although the independence of Buenos Ayres had not at such time (April 1817) been recognised by the Government of the United States, the existence of a Civil War between Spain and her Colonies had been recognised by it, and each party was deemed by it to be a Belligerent Nation, having, so far as concerned the United States, the Sovereign Rights of War, and entitled to be respected in the exercise of those Rights. One of the Belligerent cruisers, which had effected the capture of the Spanish vessel, came into the port of Virginia, and there, with the consent of

the Custom-house Authorities, landed for safe keeping a quantity of property which had been taken out of the captured vessel. The original Spanish owner of this property, through the medium of the Spanish Consul at Norfolk, thereupon commenced proceedings in the District Court of Virginia for the recovery of his property, as having been captured under circumstances, which involved a violation of the Neutrality of the United States. Two pleas were relied upon by the claimants as justifying restitution: 1. that the Belligerent cruiser had been originally equipped, armed, and manned as a vessel of war in the ports of the United States; 2. that there had been an illegal augmentation of the force of the Belligerent vessel during her cruise, whilst she was in a port of the United States.

The Court dismissed the first plea in a few words. "It is apparent," says Mr. Justice Story, "that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, Contraband indeed, but in no shape violating our Laws or our National Neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemnable as good Prize for being engaged in a traffic prohibited by the Law of Nations. But there is nothing in our Laws, or in the Law of Nations, that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale. It is a commercial adventure, which no Nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bond fide sale, (and there is nothing in the evidence before us to contradict this,) there is no pretence to say that the original outfit on her voyage was illegal, or that a capture made after the

sale was, for that cause alone, illegal." But on the second plea the Supreme Court held that, as it was proved that during the stay of the Belligerent cruiser in the port of Baltimore she had enlisted thirty persons, there was an illegal augmentation of her force by a substantial increase of her crew, and that such an augmentation of her force was not merely an infraction of the Municipal Law of the United States, subjecting the offender to personal penalties, but was a violation of the Law of Nations, infecting all captures made during the cruise. "It has never been held," says Mr. Justice Story," that an augmentation of force or illegal outfit affected any captures made after the original cruise was terminated. By analogy to other cases of violation of Public Law, the offence may be well deemed to be deposited at the termination of the voyage, and not to affect future transactions. But as to captures made during the same cruise, the doctrine of this Court has long been established, that such illegal augmentation is a violation of the Law of Nations, as well as of our own Municipal Laws, and as a violation of our Neutrality, by analogy to other cases, it infects the captures subsequently made with the character of torts, and justifies and requires a restitution to the parties who have been injured by the misconduct. It does not lie in the mouth of wrong-doers to set up a title derived from a violation of our Neutrality. The cases in which this doctrine has been recognised and applied have been cited at the bar, and are so numerous and so uniform that it would be a waste of time to discuss them or to examine the reasoning by which they are supported 24"

24 The Santissima Trinidad and the St. Ander, 7 Wheaton's Reports, p. 348.

The offence of violating the Territory of a Neutral Nation by enlisting seamen within its ports to man a Belligerent vessel, without the previous consent of the Sovereign Power of the Nation, has been held by the Supreme Court of the United States 25 not to be purged by the discharge of her crew in a foreign port, if the same crew has been re-enlisted in that port, and the vessel has thereupon proceeded to sea, and made captures under the commission of a Belligerent Power. Under such circumstances, the Supreme Court held that the discharge of the crew was a colourable transaction, and that a Neutral Power was justified in enforcing its Neutrality by the restitution of the prizes made by the Belligerent vessel, when those prizes had been brought within the Neutral Jurisdiction. The same Court 26 has held that the sale of a vessel in a Belligerent port to the Belligerent Government was a colourable sale, insufficient to purge the offence of a breach of Neutral Territory, where an interest in the prizes made by the vessel could be traced as still attaching to the parties who had committed the offence. The Courts of the United States appear, from a long series of decisions, to hold it to be the Right of the Courts of a Neutral Nation to require from Belligerents as strict proof of bona fides on their part, in matters involving a violation of its Neutrality, as the Courts of Belligerent Powers require from Neutrals in matters involving a violation of their Belligerent Rights, and that every Neutral Power is entitled to refuse the use of its Territory for any Belligerent purpose, and to vindicate its refusal by restoring all prizes made in violation of

25 The Gran Para, 7 Wheaton, Rainha de los Anjos, 7 Wheaton, P. 471. P.. 520.

26 The Monte Allegre and the

its Territory, if they should be brought by her captors

within its Territory.

tion over

in Neutral

the Neutral

§ 233. The principle upon which the Courts of the JurisdicUnited States, sitting as Courts of a Neutral Nation captures within Neutral Territory, have claimed to exercise a waters exJurisdiction over Prize of War, has been lucidly set ercised by forth by Mr. Justice Washington. "The general Power. rule," he observes 27, "is undeniable, that the trial of captures made on the High Seas, jure belli, by a duly commissioned vessel of war, whether from an Enemy or a Neutral, belongs exclusively to the Courts of that Nation to which the captors belong. To this rule there are exceptions, which are as firmly established as the rule itself. If the capture be made within the territorial limits of a Neutral country, into which her prize is brought, or by a privateer which has been illegally equipped in such Neutral country, the Prize Courts of such Neutral country not only possess the power, but it is their duty, to restore the property so illegally captured to the owner. This is necessary to the vindication of their Neutrality. A Neutral Nation may, if so disposed, without a breach of her Neutral character, grant permission to both Belligerents to equip their vessels of war within her territory. But without such permission, the subjects of such Belligerent Powers have no right to equip vessels of war, or to increase or augment their force, either with arms or with men, within the territory of such Neutral Nation. Such unauthorised acts violate her Sovereignty, and her rights as a Neutral. All captures by means of such equipments are illegal in relation to such Nation, and it is competent to her Courts to punish the offenders; and in case the prizes taken by them are

27 The Brig Alerta and Blas Moran, 9 Cranch, p. 364. PART II.

I i