"Je conclus à la restitution du navire et de sa cargaison.

"Du 7 ventôse an IX.-Decision du Conseil des prises, qui invalide la prise de la Thétis."

THE “PROTECTOR.”

SUPREME COURT OF THE UNITED STATES, 1871.

(12 Wallace, 700.)

The beginning and termination of the civil war in the United States in reference to statutes of limitation, is to be determined by some public act of the political department.

The war did not begin or close at the same time in all the States.

The question in this case was whether the suit was barred by the statute of limitations in Alabama. As the statute did not run during the period of the war, it was necessary to determine precisely the dates of beginning and end of the war.

Judgment,-CHASE, C. J.:

"The question, in the present case is, when did the rebellion begin and end? In other words, what space of time must be considered as excepted from the operation of the statute of limitations by the war of the rebellion?

"Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken.

"The proclamation of intended blockade by the President may, therefore, be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second. But the war did not begin or close at the same time in all the States. There were two proclamations of intended blockade: the first of the 19th of April, 1861 (12 Stat. at Large, 1258), embracing the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas; the second, of the 27th of April, 1861 (12 Stat. at L., 1259), embracing the States of Virginia, and North Carolina; and

there were two proclamations declaring that the war had closed; one issued on the 2d of April, 1866, (14 Stat. at Large, 811), embracing the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas, and the other issued on the 20th of August, 1866 (13 Stat. at Large, 814), embracing the State of Texas.

"In the absence of more certain criteria, of equally general application, we must take the dates of these proclamations as ascertaining the commencement and the close of the war in the states mentioned in them. Applying this rule to the case before us, we find that the war began in Alabama on the 19th of April, 1861, and ended on the 2d of April, 1866. More than five years, therefore, had elapsed from the close of the war till the 17th of May, 1871, when this appeal was brought. The motion to dismiss, therefore, must be "Granted." 1

1 See Brown v. Hiatts, 15 Wallace, 177.

In the case of Philips v. Hatch, 1 Dillon, 571 (1871), the United States Circuit Court for Iowa held that a contract entered into in the spring of 1866 between a resident of the State of Iowa and a resident of the State of Texas, was void as a contract between enemies.

CHAPTER III.

RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS.

SECTION 40.-BELLIGERENT CAPTURE IN NEUTRAL WATERS.

THE "ANNA."

HIGH COURT OF ADMIRALTY, 1805.

(5 C. Robinson, 373.)

The capture of the ship of an enemy in neutral waters is illegal; and the ship will be restored by the prize court of the captor.

Territorial waters extend three miles from the shore, or from islands near

shore.

This was the case of a ship under American colors, with a cargo of logwood, and about 13,000 dollars on board, bound from the Spanish main to New Orleans, and captured by the Minerva privateer near the mouth of the river Mississippi. A claim was given under the direction of the American Minister for the ship and cargo, as taken within the territory of the United States, at the distance of a mile. and a half from the western shore of the principal entrance of the Mississippi, and within view of a port protected by a gun, and where is stationed an officer of the United States.

The following is an extract from the judgment of Sir W. SCOTT:"When the ship was brought into this country a claim was given of a grave nature, alleging a violation of the territory of the United States of America. This great leading fact has very properly been made a matter of much discussion, and charts have been laid before the court to show the place of capture, though with different representations from the adverse parties. The capture was made, it seems, at the mouth of the river Mississippi, and, as it is contended in the claim, within the boundaries of the United States. We all know that the rule of law on this subject is terræ dominium finitur, ubi finitur armorum vis,' and since the introduction of fire-arms

that distance has usually been recognized to be about three miles from the shore. But it so happens in this case, that a question arises as to what is to be deemed the shore, since there are a number of little mud islands composed of earth and trees drifted down by the river, which form a kind of portico to the main-land. It is contended that these are not to be considered as any part of the territory of America, that they are a sort of 'no man's land,' not of consistency enough to support the purposes of life, uninhabited, and resorted to, only, for shooting and taking birds' nests. It is argued that the line of territory is to be taken only from the Balise, which is a fort raised on made land by the former Spanish possessors. I am of a different opinion; I think that the protection of territory is to be reckoned from these islands; and that they are the natural appendages of the coast on which they border, and from which, indeed, they are formed. Their elements are derived immediately from the territory, and on the principle of alluvium and increment, on which so much is to be found in the books of law. Quod vis fluminis de tuo prædio detraxerit, and vicino prædio attulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Consider what the consequence would be if lands of this description were not considered as appendant to the main-land, and as comprised within the bounds of territory.

"If they do not belong to the United States of America, any other power might occupy them; they might be embanked and fortified. What a thorn would this be in the side of America! It is physically possible at least that they might be so occupied by European nations, and then the command of the river would be no longer in America, but in such settlements. The possibility of such a consequence is enough to expose the fallacy of any arguments that are addressed to show that these islands are not to be considered as part of the territory of America. Whether they are composed of earth or solid rock, will not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil.

“I am of opinion that the right of territory is to be reckoned from those islands. That being established, it is not denied that the actual capture took place within the distance of three miles from the islands, and at the very threshold of the river. But it is said that the act of capture is to be carried back to the commencement of the pursuit, and that if a contest begins before, it is lawful for a belligerent cruiser to follow, and to seize his prize within the territory of a neutral state. And the authority of Bynkershoek is cited on this point. True it is, that that great man does intimate an opinion of his own to that effect; but with many qualifications, and

as an opinion, which he did not find to have been adopted by any other writers. I confess I should have been inclined to have gone along with him, to this extent, that if a cruiser, which had before acted in a manner entirely unexceptionable, and free from all violation of territory, had summoned a vessel to submit to examination and search, and that vessel had fled to such places as these, entirely uninhabited, and the cruiser had without injury or annoyance to any person whatever, quietly taken possession of his prey, it would be stretching the point too hardly against the captor, to say that on this account only it should be held an illegal capture. If nothing objectionable had appeared in the conduct of the captors before, the mere following to such a place as this is, would, I think, not invalidate a seizure otherwise just and lawful.

"But that brings me to a part of the case, on which I am of opinion that the privateer has laid herself open to great reprehension. Captors must understand that they are not to station themselves in the mouth of a neutral river, for the purpose of exercising the rights of war from that river, much less in the river itself. It appears from the privateer's own log-book that this vessel has done both; and as to any attempt to shelter this conduct under the example of King's ships, which I do not believe, and which, if true, would be no justification to others, captors must, I say, be admonished, that the practice is altogether indefensible, and that if King's ships should be guilty of such misconduct, they would be as much subject to censure as other cruisers.

"It is unnecessary to go over all the entries in the log. The captors appear by their own description to have been standing off and on, obtaining information at the Balise, overhauling vessels in their course down the river, and making the river as much subservient to the purposes of war, as if it had been a river of their own country. This is an inconvenience which the states of America are called upon to resist, and which this court is bound on every principle to discourage and correct.

"With respect to one vessel, it appears that the Bilboa, under Spanish colors, and an undoubted Spanish ship, had been captured and carried into the river; and it was stated in an affidavit which was exhibited to account for the absence of the usual witnesses in that case, that the prisoners had escaped. The cause was brought on upon the evidence of the releasing witnesses under this representation. It now appears by an entry in this log, that the prisoners were set on shore;' an act highly unjustifiable, in its own nature, independent of the deception with which it has been accompanied. The prisoners are the King's prisoners, and captors are particularly