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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,
MS. Inst. U. States Ministers, XI. 237.

As to the capture of an American vessel called the Kelton by a British
cruiser apparently within Portuguese jurisdiction, see Mr. Clay, Sec.
of State, to Mr. Holmes, M. C., March 16, 1826, 21 MS. Dom. Let. 289.

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
Spain, VI. 378.

"I am directed by the President to ask you to give the following instruc-
tions, explicitly, to the naval officers of the United States, namely:
Firstly, that under no circumstances will they seize any foreign
vessel within the waters of a friendly nation." Mr. Seward, Sec. of
State, to Mr. Welles, Sec. of Navy, Aug. 8, 1862, Blue Book, North
America, No. 5 (1863), 3, 4.

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,
MS. Notes from Brazil; Mr. Seward, Sec. of State, to Mr. Barboza
da Silva, Dec. 26, 1864, MS. Notes to Brazilian Leg. VI. 173.
See, also, Mr. Seward to Mr. Barboza da Silva, Dec. 15, 1864, id. 319;
Mr. Seward, Sec. of State, to Mr. Webb, min. to Brazil, No. 146, June
15, 1865, MS. Inst. Brazil, XVI. 115.

As to the special salute to the flag of Brazil, see Dip. Cor. 1866, II. 302,
305, 307.

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

was disarmed on arrival at Chefoo was untrue, and that the Ryeshetelni was in fact the first to begin hostilities, which resulted in her capture.

For. Rel. 1904, 139.

"There are, of course, states which are unable so to demean themselves as to be entitled to have their neutrality thus respected, as was the case when the Variag and Korietz were attacked in Korean waters at Chemulpo; and as seems to have been, at any rate partially, the case when the Ryeshetelni was forcibly abducted from the Chinese harbor of Chefoo."

Neutral Duties in a Maritime War, by Thomas Erskine Holland, Proceedings of the British Academy, II. 3.

2. DUTY TO PREVENT VIOLATIONS.

§ 1335.

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In all the authorities so far cited the question of the legal status of the men of war and other public property of a foreign sovereign is discussed from the point of view of privilege and exemption. Nothing is said as to the question of protection, nor is it intimated that the circumstance that the property is exempt from the local jurisdiction imposes upon the local sovereign a special obligation to protect. Marshall, in his opinion in the case of the Exchange, speaks of the public ship in the port of a friendly nation as being "under the protection of the government of the place," but the same thing is true of the merchant vessel; and it does not appear that he intended, by the phrase in question, to make any distinction between the two things. There is, however, a class of cases in which the duty of protection of men of war, as well as of merchant vessels, in the ports of a friendly country has been expressly considered. It has sometimes happened that a man of war or a merchant vessel of one belligerent has been attacked by the other belligerent in neutral waters. In such case, what is the measure of the neutral's duty?

This question has twice concerned the United States as an injured belligerent. In March, 1814, the United States frigate Essex was attacked and destroyed by the British men of war Phoebe and Cherub, just outside the limits of the port of Valparaiso, but in territorial waters. No claim for reparation appears to have been made in this case; nor does it appear to have been alleged that there was negligence on the part of the territorial sovereign in not preventing the attack.

In September 1814 the American privateer General Armstrong, Captain Reid commander, was destroyed by a British squadron in the port of Fayal, within the jurisdiction of Portugal. The fight

was begun by the privateer firing into a British longboat which was, as Captain Reid maintained, engaged in a design to board him. Three hours afterwards a set attack was made on the privateer by boats, but it was repulsed. Later, the privateer was scuttled and destroyed. It was admitted at the time, though it was questioned afterwards, that the authorities of the port were physically unable to protect the privateer against the British attack, and no application was made to them for protection till after the firing into the longboat.

November 13, 1815, Mr. Monroe, Secretary of State, instructed Mr. Sumter, United States minister at Rio de Janeiro, then the seat of the Portuguese court, that it was hoped that a sense of what was "due to their own dignity, as well as a sense of justice to the citizens of the United States" who had "suffered by the lawless capture and destruction of their vessels and property by British cruisers within the territorial jurisdiction of Portugal," would "induce the Portuguese Government to adopt effectual measures to cause reparation to be made," and that "this point should be pressed as far as it may be useful or proper to do so." a

In a later instruction of January 3, 1815, Mr. Monroe informed Mr. Sumter that the "growing frequency" of outrages similar to that in the case of the General Armstrong made it more than ever necessary" for the United States "to exact from nations in amity with them a rigid fulfillment of all the obligations which a neutral character imposes," and that the President did not doubt that the Prince Regent of Portugal would assert "the rights of his own dominion, and those of a belligerent power in friendship with him;" and he requested Mr. Sumter "to bring all the circumstances of the transaction distinctly to the view of the Portuguese Government, and to state the claim which the injured party has to immediate indemnification."

Before these instructions were received by Mr. Sumter, the Portuguese Government had directed its minister at London "to require satisfaction and indemnification" not only for certain Portuguese subjects whose persons or property on shore were injured by the British fire, but also "for the American privateer, whose safety was guaranteed by the protection of a neutral port."

In 1818 Mr. John Quincy Adams, then Secretary of State, addressed a note to the Portuguese minister concerning the claim, concluding as follows: "It is hoped your Government will, without further delay, grant to the sufferers by that transaction the full indemnity to which they are by the laws of nations entitled." c

a MS. Inst. to U. S. Ministers, VIII. 2.

MS. Inst. U. States Ministers, VIII. 29.

© Mr. Adams, Sec. of State, to Portuguese min., March 14, 1818, MS. Notes to For. Legs. II. 315.

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