The Laws of Neutrality as Existing on August 1, 1914

No cruiser is authorized to chase a vessel within or across neutral waters, and all captures so made, or made in violation of the neutral laws for maintaining neutrality, must be regarded as illegal with respect to the neutral, although not illegal with respect to the enemy.

Woolsey, pp. 282, 283.

It has been already seen that the commission of hostilities within neutral territory was the earliest subject of legal restraint. Their prohibition was so necessary a consequence of the doctrine of sovereignty, and is so undisputed a maxim of law, that it would be superfluous to recur to the subject were it not that aberrations in practice have been more common than in any other matter connected with neutrality in which the rule is so clear. In 1793 the French frigate Modeste was captured in the harbour of Genoa by two English men of war; and it was neither restored nor was any apology made for the violation of Genoese neutrality. But in the same year the American government acted upon this law by causing the_restoration of the ship Grange, seized in Delaware Bay; and the English Courts gave effect to it by voiding a capture which took place within the mouths of the Mississippi.

Hall, p. 626.

Again, in 1863, the Chesapeake, a passenger boat plying between New York and Portland, was captured on its voyage by a small number of Confederate partisans, who had embarked at New York. She was pursued by an armed vessel belonging to the United States, which found her and seized her in British waters. Two men only were on board, the rest of the captors having deserted her, but a third prisoner was taken out of an English ship lying alongside. The United States surrendered the vessel and the men, and made an apology for the violation of territory of which its officers had been guilty.

Hall, pp. 644, 645; Dana's Wheaton, Note 209.

That a prize cannot lawfully be made in neutral waters does not depend on whether they were furnished with forts or other means of defence. There were none in the cases before Lord Stowell which have been cited, and in the case of La Perle, Portalis observed that it is the neutral territory which must be respected, without regard to its strength, and for its own sake.

Westlake, vol. 2, p. 232; 1 Pistoye et Duverdy 100, Freeman Snow, 398.

Exception.

But the prize which is to benefit by the fact that she was taken in neutral waters must not have begun the hostilities, although if attacked there she does not lose her right by defending herself. And she must apply to the neutral authorities for protection, if she has the opportunity to do so before being attacked, and this even although those authorities may have no force at the spot capable of preventing the capture, for it is always possible that an intervention by a civil representative of the neutral state may be effectual.

Westlake, vol. 2, p. 232.

The law of nations defines with a fair amount of clearness the obligations of belligerent states in their dealings with those of their neighbors who remain neutral in the contest. The first and most important of their duties in this connection is to refrain from carrying on hostilities within neutral territory. We have already seen that, though this obligation was recognized in theory during the infancy of International Law, it was often very imperfectly observed in practice. But in modern times it has been strictly enforced, and any state which knowingly ordered warlike operations to be carried on in neutral territory, or refused to disavow and make reparation for such acts when committed by its subordinates on their own initiative, would bring down upon itself the reprobation of civilized mankind. * Even when cruisers have begun the chase

of an enemy vessel on the high seas, they may not follow it into neutral waters, and there complete the capture.

Lawrence, pp. 608-609.

On the occasion of a complaint by the British Government that a cruiser of the United States had captured a vessel in British waters, Mr. Seward, by direction of the President, addressed a note to the Secretary of the Navy, of Aug. 8, 1862, giving strict instructions to be communicated to the officers of the navy, "under no circumstances to seize any foreign vessel within waters of a friendly nation," and wrote to Lord Lyons, that, if any act of hostility or pursuit was committed within the maritime jurisdiction of Great Britain, the act would be disavowed, and ample redress would be promptly given.

Note 208, Dana's Wheaton; Mr. Seward to Lord Lyons, June 16, 1863; Diplomatic Correspondence, 1863, p. 581.

This Government adheres to, recognizes, and insists upon the principle that the maritime jurisdiction of every nation covers a full marine league from the coast and acts of hostility or authority within that limit can not be legally exercised, and if committed or exercised will certainly bring upon the offending party the displeasure of this Government.

Instructions of United States Secretary of the Navy, September 23, 1864,

A vessel within a marine league of a neutral coast is regarded as free from interruption. It is not lawful to chase, fire at, bring to, or capture any vessel within the waters or jurisdiction of a neutral.

Instructions of United States Secretary of the Navy, September 23, 1864. These powers [of visit, search, and detention] may be exercised in any Waters except the Territorial Waters of a Neutral State. The Territorial Waters of a State are those within three miles from low water mark of any part of the Territory of that State, or forming bays within such Territory, at any rate in the case of bays the entrance to which is not more than six miles wide.

These powers may not be exercised over a Vessel in Neutral Territorial Waters, although she may have been beyond those limits when first descried or chased.

Holland, pp. 1 and 2.

The stopping, examining, and seizing of hostile or suspected vessels and cargoes is permitted in all parts of the sea and other waters,

with the exception of waters which are under the dominion of a neutral Power, or from which warlike operations are excluded by special international Agreements.

Russian Regulations, 1895, Article 16.

Territorial waters.

The area of maritime warfare comprises the high seas or other waters that are under no jurisdiction, and the territorial waters of belligerents. Neither hostilities nor any belligerent right, such as that of visitation and search, shall be exercised in the territorial waters of neutral States.

The territorial waters of a State extend seaward to the distance of a marine league from the low-water mark of its coast line. They also include, to a reasonable extent, which is in many cases determined by usage, adjacent parts of the sea, such as bays, gulfs, and estuaries inclosed within headlands; and where the territory by which they are inclosed belongs to two or more States, the marine limits of such States are usually defined by conventional lines.

U. S. Naval War Code, 1900, Article 2.

Visit, search, or capture may not take place in the territorial waters of a neutral Power, nor in waters which are by Treaty clearly placed outside the area of hostile operations.

Japanese Regulations, 1904, Article 2.

The right of capture does not hold:

(a) Within neutral waters, i. e. within a sea area three sea miles wide, measured from the low water coast line, bordering the coast and the islands and indentations appertaining thereto. As appertaining are:-Islands which are no farther than six sea miles distant from one of the mainland coasts of the same state; indentations whose coast is exclusively in the possession of the neutral state and whose opening is six sea miles or less wide.

(b) Within those waters which are by convention closed to operations of war or to ships of war. These are:

(a) The Suez Canal, including its entrance harbors and a sea area of three sea miles beyond them (Article 4, Section 1, of the Treaty of Constantinople of 29. October 1888).

(b) The Bosporus and the Dardanelles, so far as Turkey is not herself a belligerent. (Treaty of London concerning narrow seas of July 13, 1841: Article 10 of the Peace of Paris of 30, March 1865 and Appendix I thereto; Article 2 of the Treaty of London of 13, March 1871; Article 63 of the Treaty of Berlin of 13. July 1878.).

(c) The waters of Corfu and Paxo, so far as no other power than Greece, Great Britain, France, Russia, Austro-Hungary, and Germany are parties to the war (Article 2 of the Treaty of London of 14, November 1863, and Article 2 of the Treaty of London of 24, March 1864).

(d) The mouths of the Danube (Article 52 of the Treaty of Berlin of 13, July 1878).

(e) The mouths of the Congo and Niger and the Coastal waters adjacent thereto (General agreement of the Berlin Conference of 26, February 1888, Articles 25 and 33.).

The right of capture may also be no further exercised when a merchant vessel during the course of pursuit or while under visit and search reaches the waters referred to in (a) and (b).

A ship seized in violation of the foregoing provisions is to be released immediately, especially at the request of the neutral Govern

ment.

German Prize Rules, 1909, Article 3.

Article 2, Hague Convention XIII, 1907, is substantially identical with section 122, Austro-Hungarian Manual, 1913.

In 1801 an English frigate seized some Swedish vessels at Oster Risøer, within Norwegian waters. Lord Hawkesbury expressed the regret of the English Government that the Danish sovereignty had been violated, but failed to see that the international illegality of the capture required the application of an international remedy; and professing that the government had no power to restore the ships. referred the aggrieved parties to the courts. Count Wedel-Jarlsberg, the Danish Minister of Foreign Affairs, declared that his sovereign "would never consent that the open violation of his territory should be submitted under any pretext whatever to the decision of the courts." In the end Lord Hawkesbury receded from his pretension. and the ships were given up.

Hall, page 85 and note; Ortolan, Dip. de la Mer, Annexe F, ii, 427–33.

"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, Secretary of State to Mr. Monroe, November 25, 1806; Moore's Digest, Vol. VII, p. 1088.

"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, Secretary of State, to Mr. Tassara, Spanish Minister, May 21, 1863; Moore's Digest, Vol. VII, p. 1089.

Exception in case of military occupation of territorial waters by seizing power. The "Eliza Ann," 1 Dodson, 244.-This was the case of seizure of American vessels in Swedish territorial waters during the year 1812, after the declaration of war between the United States and Great Britain. Earlier in the year, England and Sweden had been at war, but prior to the seizure had signed a treaty of peace, which, however, had not then been ratified. At the time of the seizure the territorial waters in which it took place, were in possession of British forces.

Held that Sweden was not a neutral power at the time. of the seizure (1), because the treaty of peace had not been ratified, and (2), because she admitted to her ports American vessels but excluded British vessels.

Also held that there was no violation of Swedish territory as the waters where the seizure took place were then under British military occupation.

The acts of the boats of a man of war are the acts of the ship.

"Twee Gebroeders," 3 C. Rob., 162.-In this case four Dutch ships, during the blockade of Amsterdam by the British were captured by

the boats of two British cruisers, when the cruisers themselves were lying within neutral waters.

Held that the sending out of the boats was the commencement of a hostile act, and thus there was a violation of neutral territory.

The court said that the situation was comparable to that of the firing of a cannon by a cruiser lying in neutral waters, the shot striking outside of such waters.

The neutral sovereign can alone question the validity of the capture.

The "Anne," 3 Wheaton, 435.-The court said: "A capture made within 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 as to him and him only is it to be considered void. The enemy has no rights whatsoever, and if the neutral sovereign omits or declines to interpose a claim, the property is condemnable, jure belli, to the captors. This is the clear result of the authorities; and the doctrine rests on well-established principles of public law."

See to the same effect The Eliza Anne, 1 Dod., 244: The Purissima Conception, 6 C. Rob., 45; The Diligentia, 1 Dod.. 404; The Etrusco, Lords, 1795; The Lilla, 2 Sprague, 177; The Adela, 6 Wall., 266; The Florida, 101 U. S.. 37.

Seizure, within neutral waters, not matter for cognizance by court.

Ship Richmond v. United States, 9 Cranch, 102.-In this case it was held that the seizure of a vessel by the naval force of the United States in waters belonging to a friendly power, though an offense against that power. is a matter to be adjusted between the two Governments and not within the cognizance of the court, and does not render unlawful judicial proceedings against the vessel, instituted after her arrival within the jurisdiction of the United States.

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