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"The laws of the United States do not admit of the sale within their jurisdiction, for any purpose, of prize goods taken by one belligerent from another and brought into their ports. This Government does not take jurisdiction at all upon the question of prize or no prize, but leaves that question exclusively to the cognizance of the tribunals of the respective belligerents."
Mr. Clay, Sec. of State, to Mr. Obregon, May 1, 1828, MS. Notes to For.
See, also, Mr. Buchanan, Sec. of State, to Mr. Saunders, min. to Spain,
"Neither belligerent is allowed by the laws of the United States to sell his prizes within their ports. The rights of hospitality are equally offered to both. They could not be denied, in many cases, without a violation of the duties of humanity."
Mr. Clay, Sec. of State, to Mr. Rebello, May 1, 1828, MS. Notes to For.
A neutral nation, while admitting belligerent men-of-war to its ports, may, as it sees fit, wholly admit or wholly exclude their prizes.
Cushing, At. Gen., 1855, 7 Op. 122.
In the case of the American steamer Chesapeake, which was taken possession of, while on a voyage from New York to Portland, Me., by persons acting in the name of the Confederate States, and which was afterwards recaptured in Nova Scotian waters, where the captors had sought asylum, by a United States ship of war, who took the vessel to Halifax and delivered her to the colonial authorities, the Hon. Alex. Stewart, C. B., of the vice-admiralty court, held that the sovereign whose territorial rights are violated by the subjects or citizens of a friendly state can, if he finds them within his jurisdiction, inflict on them his own penalty in his own mode; that the Chesapeake, if a prize at all, was an uncondemned prize; that for a belligerent to bring an uncondemned prize into a neutral port to avoid recapture is such a grave offense against the neutral state that it ipso facto subjects the prize to forfeiture, and that the vessel should be restored to the owners on the payment of costs. Mr. Seward had contended for the restitution of the vessel unconditionally, by executive authority, without waiting for an adjudication; but, on the rendition of the court's decision, he advised the owners to pay the costs under protest, and accepted the restitution as decreed. Mr. Seward, Sec. of State, to Mr. Adams, min. to England, No. 852, Feb. 24, 1864, Dip. Cor. 1864, I. 196.
For the judgment of the court, see id. 197.
For a further account of the case of the Chesapeake, see supra, § 210.
Replying to an inquiry of the Peruvian legation as to the course the United States would pursue during the war between Spain and Peru, Mr. Seward said: "This Government will observe the neutrality which is enjoined by its own municipal law and by the law of nations. No armed vessels of either party will be allowed to bring their prizes into the ports of the United States."
Mr. Seward, Sec. of State, to Señor Garcia, Feb. 26, 1866, MS. Notes to
(3) HOSTILE PASSAGE.
Early in April, 1898, the Canadian Government, acting upon a request presented by the Department of State to the British ambassador at Washington, granted permission for four United States revenue cutters to pass through the canals under Canadian control from the Great Lakes to the Atlantic coast, two of the vessels being armed revenue cutters, while the other two were under construction and were not to be delivered by the builders to the United States till they reached the sea. April 27, 1898, war between the United States and Spain having meanwhile begun, a memorandum was left at the Department of State by the British ambassador, in which, referring to the fact that the four vessels were in Lake Ontario awaiting the opening of navigation, he stated that Her Majesty's Government were of opinion that the permission given before the outbreak of war should not be withdrawn, " provided that the United States Government are willing to give an assurance that the vessels in question will proceed straight to a United States port without engaging in any hostile operation." The opinion was further expressed" that the vessels should not be furnished with more coal and stores than are necessary to take them to New York or some other United States port within easy reach." The hope was expressed that assurances to that effect would at once be given, "in order that the facilities granted before the outbreak of war .. may still be extended without any breach of neutrality." The Department of State replied that instructions would be sent to the commanders of the vessels to observe the conditions above expressed, but added: "It is, of course, understood that the prohibition of engaging in any hostile operation would not preclude resistance to a hostile attack." On the 4th of May the British ambassador was advised that the proper orders had been issued to the commanding officers of two vessels which were then on their way to the Atlantic coast, and that similar orders would be given to the others whenever they should follow.
For. Rel. 1898, 968-970.
This incident is mentioned in President McKinley's annual message, Dec. 5, 1898. See, also, H. Doc. 471, 56 Cong. 1 sess. 65–72.
"In order that it may be able to refute the charges
the Portuguese authorities are allowing the free passage through this port of European volunteers for the Republican armies, the local government, some time ago and while I was in Pretoria, decided that all passengers passing through this port and bound for the Transvaal should, before receiving their Portuguese passports to cross the frontier, make oath, before their respective consuls, that they desired to proceed to the Transvaal to engage in some particular business, and not with the intention to take part in the war. As
a good many Americans are now passing through this port I had some of these oaths printed, and enclose a copy for your inspection. "The American wishing to proceed to the Transvaal subscribes to this oath in duplicate. One copy I retain here on file, and the other is filed in the archives of the Government of Lourenço Marquez." Mr. Hollis, consul at Lourenço Marquez, to Mr. Hill, Assist. Sec. of State, April 4, 1900, MSS. Dept. of State.
The Department of State took the view that the Portuguese authorities had the right, in execution of their neutrality laws and regulations, to require the oath to be made.
Mr. Cridler, Third Assist. Sec. of State, to Mr. Hollis, No. 58, May 12, 1900, 173 MS. Inst. Consuls, 341; same to same, No. 66, Aug. 8, 1900, id. 592.
The consul was instructed that it was not proper for him to charge a fee for the issuance of the neutrality certificates required by the Portuguese Government.
When the war between Great Britain and the Transvaal began, free passage was given by Portugal to British troops through Beira to Rhodesia. This permission was based on the Anglo-Portuguese treaty of June 11, 1891. By Art. XII. of this treaty Portugal
a London Standard, April 27, 1900.
engages to permit and to facilitate transit for all persons and goods of every description over the waterways of the Zambesi, the Shiré, the Pungive, the Busi, the Limpopo, the Sabi, and their tributaries, and also over the landways which supply means of communication where these rivers are not navigable." By Art. XIV. Portugal agrees to grant absolute freedom of passage between the British sphere of influence and Pungive Bay for all merchandise of every description, and to give the necessary facilities for the improvement of the means of communication," and also "to construct a railway between Pungive and the British sphere."
83 Br. & For. State Papers, 1890, 1891, 27, 35, 36, 38; Hertslet's Com-
The question "whether a neutral state may permit a belligerent force
(4) TELEGRAPHIC SERVICE.
After the destruction of the Spanish fleet at Manila in May, 1898, Admiral Dewey obtained possession of the Philippines end of the cable of the Hongkong and Manila Telegraph Company, which held its concession from Spain on condition that it should not send telegrams when forbidden by the Spanish Government to do so. Acting under this clause, the Spanish Government ordered the company to cease working the cable at Hongkong, and the company was obliged to suspend operations. Under these circumstances, the United States sought from the British Government permission for the landing at Hongkong of a new cable from the Philippines, to be constructed by an American company. Lord Salisbury replied, after consultation with the law officers of the Crown, that it had been decided that the British Government was not at liberty to comply with the request of the United States. The Marquis of Tweeddale, president of the Hongkong and Manila Telegraph Company, sought permission from the Spanish Government to take telegrams from both sides, but this was at first refused, and he therefore declined to yield to solicitations for the use of the cable by the United States, unless secured by the latter by a formal guarantee against all losses which might result, including those arising from the forfeiture of the company's concession. On July 11, 1898, however, the London representative of the Spanish telegraph department informed Lord Tweeddale that he was authorized by the Spanish Government to take the necessary
steps to obtain complete neutralization of the cable, giving you entire independence and freedom from interference on the part of the one or the other of the belligerents, on condition that your office at Manila is considered neutral territory to give free course to all telegrams-official, private, in plain or secret language, whether in code or in figures, without distinction, by senders of all nationalities or addressed to the same." On the 12th of July the American ambassador at London was instructed by his Government to "postpone consideration" of this proposal for the time being.
For. Rel. 1898, 976-980.
On August 17, 1898, after the conclusion of the armistice between the United States and Spain, the American ambassador in London was instructed that the United States did not object to the restoration of the cable, and that the French ambassador had been requested to express the hope that Spain would not object. On August 22 notice was received by the United States that the cable was repaired and open for business. (For. Rel. 1898, 980.)
On May 2, 1898, the consul of the United States at Barbados, British West Indies, telegraphed that the governor of the colony, under instructions from the home Government, controlled the cable office and would not permit messages to be sent out relative to the movements of war ships, whether Spanish or American.
Mr. Adee, Second Assist. Sec. of State, to Sec. of Navy, May 3, 1898, 228
"A neutral state is, no doubt, on principle, similarly bound to prevent the use of its territory for the reception and transmission of messages by wireless telegraphy, in furtherance of belligerent interests; and China seems to have accordingly destroyed, though tardily, the electrical installment placed by the Russians in the neighborhood of Chefoo, for the maintenance of communications between the beleaguered fortress of Port Arthur and the outer world."
Neutral Duties in a Maritime War, by Thomas Erskine Holland, Proceedings of the British Academy, II. 3.
Perhaps the learned author of the above passage did not intend to convey the idea that it would be the duty of a neutral state to prevent a private company engaged in transmitting wireless messages from receiving and transmitting any such message in furtherance of belligerent interests. The point in the particular case to which he refers was the establishment of a station in neutral territory by one of the belligerents, an act which the neutral undoubtedly may be required to use due diligence to prevent. With regard to the transmission of telegraphic messages by private companies regularly engaged in such business, there would appear to be no difference between the use of wireless telegraphy and the use of land lines or submarine cables.