of Neutral It is not the practice of modern nations to grant Salvage Recapture on the Recapture of Neutral Vessels; and upon this plain Property. principle, that the liberation of a clear neutral from the hand of the enemy, is no essential service to him; for the enemy would be compelled by the tribunals of his own country, after he had carried the neutral into port, to release him with costs and damages, for the injurious seizure and detention. This proceeds on the supposition, that those tribunals would duly respect the law of nations; a presumption which, in the wars of civilized states, each belligerent is bound to entertain in their respective dealings with neutrals. But in the wild hostilities declared and practised by France in the Revolutionary War, there was a constant struggle between the governing powers of France and the maritime courts, which should most outrage the rights of neutral property; the liberation of neutral property out of their hands then came to be deemed, not only by Lord Stowell, but by the neutrals themselves, a substantial benefit; and salvage for such service was not only awarded, but thankfully paid.* Postliminii. The rule by which things taken by the enemy are restored Jus to their former owner, upon coming again under the power of the nation to which they formerly belonged, is termed jus postliminii, or the right of postliminy. Real property, which is easily identified, is more completely within the right of postliminy than moveable property, which is more transitory in its nature, and less easily recognized. During war, the right of postliminy can only be claimed in the tribunals of the belligerent powers, and not in the courts of neutrals; for by a general law of nations, neutrals have *The War Onskan, 2 Rob. 300. Costs and invalid no right to enquire into any captures, except such as are an infringement of their own neutrality.* It often happens that captains of ships of war and privateers make seizures of native or neutral vessels, under the impression that such vessels are occupied in illicit trade or other condemnatory acts. This may arise from error, and in such cases the vessel is restored to the owner by the prize court; but still there may be circumstances justifying the seizure, though not condemnation; and if condemnation is not granted, the owner sets up a claim for any damage that may have occurred to his vessel. And the rule is, that where the capture is not justifiable, a captor is answerable for every damage.† But if a seizure is justifiable, all that the law requires is that the captor shall be held responsible for due diligence ; it is not enough that the captor should use as much caution as he would in his own affairs, the law requires that there should be no deficiency of due diligence.‡ When property is confided by an owner to another person, the care that the owner would take of his own property may be a reasonable criterion of the care that he may expect his agent to take. But in the case of capture, there is no confidence reposed, nor any voluntary election of the person in whose care the property is left. It is a compulsory act of justifiable force, but still of such force as removes from the owner any responsibility for the imprudent conduct of the prize-master. Hence, where the prize-master refused to take a pilot, and the ship and cargo were lost, restitution in value was decreed. * 1 Kent, Com. 108. The William, 6 Rob. 316. CHAPTER III. SECTION I. Neutrality. It now only remains for me to place before the reader the Rights of Rights and Obligations of Neutral Nations, as they influence Commerce. Neutral Nations are those who, in time of war, take no part in the contest, but remain common friends to both parties, without favouring the arms of the one to the prejudice of the other.* Neutrality consists in-1st, Giving no assistance when there is no obligation to give it; nor voluntarily to furnish troops, arms, ammunition, or anything of direct use in war. 2ndly, In whatever does not relate to war, a neutral and impartial nation must not refuse to one of the parties (on account of his present quarrel) what she grants to the other.† Neutral These rules do not apply to engagements by treaty, to Qualified which the Neutral may be bound previous to war; as for Neutrality. example, an engagement to furnish one of the belligerent parties with a limited succour in money, troops, ships, or munitions of war, or to open his ports to the armed vessels of his ally with his prizes. ‡ Neutrality, again, may be qualified by treaties (antecedent to war), to admit vessels of war, with their prizes, of * Vattel, book iii. c. 7. † Idem. 2 Wheaton, chap. iii. sec. i. p. 133. one of the belligerent parties, into the neutral's ports, to the complete or limited exclusion of the other. Neutral The Rights of War can be exercised only within the terriTerritory protected. tory of the belligerent powers, upon the high seas, or in a territory belonging to no one. To make use of neutral territory for the proximate purposes of war cannot be allowed, although it is to be understood that the prohibition does not extend to remote objects and uses, such as procuring provisions, and other innocent articles.* The sanctity of a claim of territory is very high. When the fact is established, it overrules every other consideration; the property taken must be restored, notwithstanding that it belongs to the enemy; and if the captors should have erred wilfully, and not merely through ignorance, he would be subject to further punishment. It is however, a point on which foreign states are very likely to be misinformed and abused, by the interested representations of those who are anxious to catch at their protection. The claim of territory is, therefore, to be taken according to the letter of the law, and to be made out by clear and unimpeached evidence. The right of seizing the property of the enemy is a right which extends, generally speaking, universally, wherever that property is found. The protection of neutral territory is an exception only to the rule; it is not therefore to be considered disrespectful to any government that the fact, on which such claims are founded, should be accurately examined†. The neutral territory is supposed to extend three English miles from the shore.‡ * Wheaton, vol. ii. 137; Kent's Com. vol. i. p. 116. † Vrow Anna Catharina, 5 Rob. 18. + Idem. But the general inviolability of neutral character goes Property of Belligerents further than merely the protection of neutral property. in Neutral It protects the property of belligerents within the neutral Territory. territory. Thus, if the enemy be attacked, or any capture made under neutral protection, the neutral is bound to redress the injury, and effect restitution. As for example, in 1793, the English ship Grange was captured in Delaware Bay, by a French frigate, and upon due complaint, the American Government caused the British ship to be promptly restored. Similarly, in the case of the Anna, restoration was made of property captured by a British cruizer near the mouth of the Mississippi, and within the jurisdiction of the United States.* An armed ship has no right to lie in a neutral harbour, in order to make it an habitual station for her captures, as that would be a continuous direct infringemeut on neutral trade with the enemy; but if she is accidentally in a neutral port, and sees an enemy coming, she may go out and fight or take her, beyond the range of neutral ground.† Nor ought captors to station themselves at the mouth of a neutral river for exercising the rights of war from that river, much less in the very river itself.‡ The doctrine is carried to the extent that no use of a neutral territory for the purposes of war is to be permitted; this does not include remote uses, such as procuring provisions and refreshments, and acts of that nature, which the law of nations universally tolerates; but that no proximate acts of war, in any manner, are to be allowed to originate on neutral grounds;-thus a ship has no right to station herself in neutral waters, and then to send out her boats on * 1 Kent's Com. p. 117; The Anna, 5 Rob. Adm. Rep. 373. † Vrow Anna Catharina, 5 Rob. 18. The Anna, 5 Rob. 385 c. |