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cade, in the Delaware Bay, and brought to Philadelphia. Next day Mr. Jefferson assured Mr. Hammond that the United States would "certainly not see with indifference its territory or jurisdiction violated" by either belligerent, and that an inquiry would at once be made into the facts. On the same day Mr. Jefferson wrote in a similar sense to the French minister and asked that the ship be detained till the President's decision could be made. Subsequently Mr. Jefferson asked that the ship and her cargo be restored, and this was done.
Am. State Papers, For. Rel. I. 148, 150; Moore, Int. Arbitrations, IV. 3968; Mr. Jefferson, Sec. of State, to the British minister, May 3, 1793, 5 MS. Dom. Let. 101; Mr. Jefferson, Sec. of State, to the French minister, May 3, 1793, id. 100.
"As in cases where vessels are reclaimed by the subjects or citizens of the belligerent powers, as having been taken within the jurisdiction of the United States, it becomes necessary to ascertain that fact, by testimony taken according to the laws of the United States, the governors of the several States, to whom the application, will be made in the first instance, are desired immediately to notify thereof the attorneys of their respective districts. The attorney is thereupon instructed to give notice to the principal agent of both parties, who may have come in with the prize, and also to the consuls of the nations interested, and to recommend to them to appoint, by mutual consent, arbiters, to decide whether the capture was made within the jurisdiction of the United States, as stated to you in my letter of the 8th instant, according to whose award the governor may proceed to deliver the vessel to the one or the other party. But in case the parties, or consul shall not agree to name arbiters, then the attorney, or some person substituted by him, is to notify them of the time and place, when and where he will be, in order to take the depositions of such witnesses as they may cause to come before him, which depositions he is to transmit for the information and decision of the President."
Mr. Jefferson, Sec. of State, to Mr. Hammond, Brit. min., Nov. 10, 1793, Am. State Papers, For. Rel. I. 183; 1 Wait's State Papers, 196; 4 Jefferson's Works, 76.
No foreign power can of right institute or erect any court of judicature in the United States, except such as may be warranted by treaties, and the admiralty jurisdiction which has been exercised in the United States by the consuls of France, not being so warranted, is not of right and cannot be recognized
Glass v. Sloop Betsey (1794), 3 Dall. 6.
By a royal cedula of June 14, 1797, the King of Spain declared that the immunity of the coasts of all his dominions should not be limited as theretofore "by the doubtful and uncertain reach of a cannon shot, but by the distance of two miles of nine hundred toises each," and that no prize made within that distance should be valid unless it belonged to a power with which he was at war. All prizes made within that limit were to be adjudged by the Spanish tribunals; those made outside, by the tribunals of the captor. But this rule was subject to the qualification that, if a neutral vessel captured outside the territorial distance and brought into a Spanish port should contain Spanish property amounting to a half of the value of the cargo, the whole prize should be judged by the Spanish tribunals, while, if the Spanish property on board amounted to less than half the value of the cargo, the tribunals of the captor should take cognizance of it.
10 MS. Dom. Let. 284.
The invasion of neutral rights by an attack on one belligerent cruiser by another on neutral waters is not condoned by the fact that the chase was begun outside of the neutral line.
Mr. Madison, Sec. of State, to Mr. Monroe, Nov. 25, 1806, MS. Inst. U.
“I take the true principle to be, that 'for violations of jurisdiction, with the consent of the sovereign, or his voluntary sufferance, indemnification is due; but that for others he is bound only to use all reasonable means to obtain indemnification from the aggressor, which must be calculated on his circumstances, and these endeavors bonâ fide made; and failing, he is no further responsible.' It would be extraordinary indeed if we were to be answerable for the conduct of belligerents through our whole coast, whether inhabited or not."
Mr. Jefferson, President, to the Secretary of State, Apr. 21, 1807, 5 Jefferson's Works, 69.
In the case of the American privateer brig General Armstrong, which was destroyed by an English squadron in the harbor of Fayal in 1814, the United States claimed indemnity from Portugal on account of the failure of protection. Louis Napoleon, to whom the case was referred as arbitrator, disallowed the claim on the ground that, before the fight took place, the commander of the privateer omitted to invoke the protection of the colonial authorities.
Moore, Int. Arbitrations, II. 1071, 1096.
See, also, Hall, Int. Law (4th ed.), 648; Abdy's Kent (2d ed.), 157;
As to the distribution of the appropriation made by Congress in this case, see 21 Op. At. Gen., 154, 523.
A capture made in 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 if he omits or declines to interpose a claim, the property is condemnable, jure belli, to the captors. If the captured vessel commence hostilities upon the captor in neutral waters, she forfeits the neutral protection, and the capture is not an injury for which redress can be sought from the neutral sovereign.
The Anne, 3 Wheat. 435.
The minister of Colombia having complained of the capture within the territorial waters of the United States by the Mars and another Spanish brig of the Colombian privateer Zulmi, which was taken to Havana and detained there, together with the crew, the minister of the United States in Madrid was directed to present the case to the Spanish Government "and demand an immediate restoration of the Zulmi and her crew," as well as damages for her unlawful capture and detention. "A compliance with this demand," said the Department of State," is due to the violated authority of the United States, and to the fidelity with which this Government has observed a neutrality during the existing war."
Mr. Clay, Sec. of State, to Mr. A. H. Everett, min. to Spain, Jan. 15, 1827,
As to the capture of an American vessel called the Kelton by a British
It is a principle of the law of nations that no belligerent can rightfully make use of the territory of a neutral state for belligerent purposes, without the consent of the neutral government.
Cushing, At. Gen., 1855, 7 Op. 367.
The pursuit by a belligerent cruiser of an enemy's ship within neutral waters, and driving the latter ashore, is a violation of the law of nations.
Mr. Seward, Sec. of State, to Mr. Tassara, May 21, 1863, MS. Notes to
"I am directed by the President to ask you to give the following instruc-
In a note of Dec. 12, 1864, which seems, by an understanding between Mr. Seward and the Brazilian legation, not to have been formally submitted by the latter till the 21st of December, certain demands were presented in connection with the capture of the Confederate cruiser Florida by the U. S. S. Wachusett at Bahia, Brazil, on the 7th of the preceding October. The Wachusett had been some days in port, when, on the 4th of October, the Florida arrived, sixtyone days out from Teneriffe, and applied for permission to obtain provisions and coal and to repair her boilers, which were in bad condition. The United States consul opposed her receiving any hospitality, but the authorities allowed her 48 hours for provisions and a further time for repairs, subject to an examination by a machinist, and the consul was said to have given a pledge for the observance of neutrality by the commander of the Wachusett. At dawn of the 7th of October, however, the Wachusett was seen to leave her anchorage and approach the Florida, and soon afterwards to fire on the latter. The commander of the Brazilian naval division then present intervened, and the firing ceased. But it was soon afterwards perceived that the Florida was in motion, and that the Wachusett was towing her out to sea. The Brazilian commander pursued, but could not overtake her, and the Florida was brought to Hampton Roads. The consul, who had been actively implicated in the affair, left on the Wachusett. The Brazilian Government demanded (1) a "solemn and public declaration by the Government of the Union that it was surprised by the unusual action of the commander of the Wachusett, which it highly rebukes and condemns, regretting that it should have occurred;" (2) the "immediate dismissal of said commander, followed by the commencement of proper process;" and (3) "a salute of 21 guns to be given in the port of the capital of Bahia by some vessel of war of the United States, having hoisted at her masthead during such salute the Brazilian flag.” The Brazilian Government also claimed, "as reparation, full liberty to the crew and all individuals who were on board the Florida when she was captured; and the delivery of the vessel to the Government of the Emperor" in one of its ports.
Mr. Seward, Dec. 26, 1864, replied that the President disavowed and regretted the proceedings at Bahia; that he would suspend the commander of the Wachusett and direct him to appear before a courtmartial; that the consul, as he admitted that he advised and incited the commander, would be dismissed, and that the flag of Brazil would receive from the United States Navy the honor customary in the intercourse of friendly maritime powers. This answer, said Mr. Seward, rested exclusively upon the ground that the capture of the Florida was "an unauthorized, unlawful, and indefensible exercise
of the naval force of the United States, within a foreign country, in defiance of its established and duly recognized Government." As to the captured crew of the Florida, it was stated that they would be set at liberty to seek refuge wherever they could find it, with the hazard of recapture when beyond the jurisdiction of the United States. With reference to the demand for the return of the Florida to Bahia, Mr. Seward stated that the vessel, while anchored in Hampton Roads, sank on the 28th of November, owing to a leak which could not be seasonably stopped.
Mr. Barboza da Silva, Brazilian chargé, to Mr. Seward, Dec. 12, 1864,
As to the special salute to the flag of Brazil, see Dip. Cor. 1866, II. 302,
With reference to a report that the troops of General Diaz, after defeating and routing their adversaries on Mexican soil, pursued them into Texas, where they again attacked and dispersed them, Mr. Evarts instructed the American minister in Mexico: "While it is deemed hardly probable that this unjustifiable invasion of American soil was made in obedience to any specific orders from the Mexican capital, it is, nevertheless, a grave violation of international law, which can not, for a moment, be overlooked. You are instructed to call the attention of the officers of the de facto Government with whom you are holding unofficial intercourse to this case, and to say that the Government of the United States will confidently expect a prompt disavowal of the act, with reparation for its consequences, and the punishment of its perpetrators."
Mr. Evarts, Sec. of State, to Mr. Foster, No. 395, June 21, 1877, For. Rel. 1877, 413.
According to the Japanese official statement of the Ryeshetelni incident, Chinese neutrality was held to be imperfect, being applicable only to places not occupied by the armed forces of either belligerent, so that, when the vessel escaped from Port Arthur and sought asylum at Chefoo, Japan was justified in regarding the harbor of Chefoo as belligerent, so far as the incident in question was concerned. With the termination of the incident the neutrality of the port was revived. The Japanese Government also contended that Russia had disreregarded her engagement to respect the neutrality of China, by establishing a system of wireless telegraphy between Port Arthur and the Russian consul at Chefoo. The Japanese Government also alleged that the statement of the commander of the Ryeshetelni that his ship