Le fait de construire un bâtiment de guerre pour le compte d'un belligérant, ou de l'armer dans les états neutres, est une violation du territoire. Toutes les prises faites par un bâtiment de cette nature sont illégitimes, en quelque lieu qu'elles aient été faites. Le souverain offensé a le droit de s'en emparer, même de force, si elles sont amenées dans ses ports, et d'en réclaimer la restitution lorsqu'elles sont, comme cela arrive en général, conduites dans les ports hors de sa juridiction. Il peut également réclamer le désarmement du bâtiment illégalement armé sur son territoire, et même le détenir s'il entre dans quelque lieu soumis à sa souveraineté, jusqu'à ce qu'il ait été désarmé.1

After which the learned author goes on to use the following strong language, which, however, appears to express a view peculiar to himself, and, so far as I am aware, shared by no other writer on international law:

Le peuple neutre ne peut négliger l'accomplissement de ce devoir, sans s'exposer à la juste vengeance de la nation à laquelle cet abandon de ses droits porterait un grave préjudice, sans lui fournir un juste sujet de guerre. On pourrait en effet l'accuser, avec raison, d'abdiquer les droits de sa souveraineté, de son indépendance, en faveur de l'une des parties en guerre, au préjudice de l'autre, et par conséquent de manquer d'impartialité, de méconnaître le second devoir de la neutralité.2

If, indeed, by constructing or arming a ship, M. Hautefeuille means constructing or arming for the immediate purpose of war, so as to constitute a hostile expedition from the shore of the neutral, I entirely agree that this will amount to a violation of neutral territory. Short of that, it will only be a violation of the local law, and therefore will not amount to a violation of territory. This distinction is all-important, but appears to have been wholly lost sight of.

But even should it amount to a violation of territory, it seems monstrous to assert that the neutral is bound to have recourse to force, possibly to become involved in war, for the benefit of the other belligerent. It is to be observed that M. Hautefeuille, before he came to the subject of ships, had been speaking of the violation of neutral territory by acts of hostility, such as the taking of a ship in neutral waters.

He could hardly, I imagine, mean to go the length of saying that the clandestine equipment of a ship for belligerent use, not amounting to a hostile expedition, would be such a violation of the rights of the neutral as would justify, much less necessitate, a declaration of war. M. Ortolan discusses the subject with the calm judgment which distinguishes him.

Ortolan.

It is true that his reasoning is addressed to the obligation of the neutral state to insure the restoration of prizes illegally captured within its waters; but it is obvious that the principle he lays down applies to every violation of neutral territory by a belligerent:

L'illégalité des actes d'hostilité exercés dans les eaux territoriales d'une puissance neutre entraîne, comme conséquence directe, l'illégalité des prises faites en dedans des limites de ces eaux. Ces prises ne sont pas valables, soit qu'elles aient été faites par des navires de guerre, soit qu'elles l'aient été par des corsaires. C'est le devoir de l'état auquel appartient le capteur de les restituer aux premiers propriétaires; et même c'est le droit et le devoir de l'état neutre dont le territoire a été violé de prononcer lui-même cette restitution si la prise se trouve amenée chez lui.

nus.

Toutefois la nullité des prises ainsi faites, n'est pas tellement absolue qu'elle puisse être invoquée, et que l'état du capteur doive la prononcer même en l'absence de toute réclamation de la part de l'état neutre dont on prétend que les droits ont été mécon"C'est une règle technique des cours de prises," dit à ce sujet M. Wheaton, "de ne restituer leur proprieté aux réclamants particuliers, en cas pareil, que sur la demande du gouvernement neutre dont le territoire a été ainsi violé. Cette règle est fondée sur le principe que l'état neutre seul a été blessé dans ses droits par une telle capture et que le réclamant ennemi n'a pas le droit de paraître pour entraîner la non-validité de la capture."

Nous adhérons complétement à cette doctrine et à cette jurisprudence pratique. Elle concorde parfaitement avec ce que nous avons dit ci-dessus des cas où, à raison des circonstances et de l'état des côtes, les actes d'hostilité peuvent être excusés, bien qu'ayant eu 1 Droits et devoirs des nations neutres, vol. i, p. 295. 2 Ibid., p. 296.

law.

Duty of seizing for

lieu dans une mer littorale neutre. Elle est même indispensable dans le systême de tous ceux qui admettent, comme nous, cette possibilité d'excuse. Puisque la nullité des prises ainsi faites n'a rien d'absolu, qu'elle est subordonnée aux réclamations de l'etat neutre, le fait est remis à l'appréciation de cet état. C'est à lui à juger s'il y a eu, ou s'il n'y a pas eu, véritablement atteinte portée à sa souveraineté; s'il doit à sa propre dignité et aux obligations d'impartialité que lui impose sa qualité de neutre, de réclamer contre cette atteinte et de demander que les conséquences en soient annulées ou réparées; ou bien s'il peut garder le silence et n'élever aucune réclamation. S'il réclame, et que ses plaintes soient fondées, le gouvernement du capteur doit annuler la prise ainsi faite au mépris d'une souveraineté neutre; s'il ne réclame pas nul n'est admis à le faire pour lui et le gouvernement du capteur n'a pas à tenir compte de pareilles objections.' But it is said that-independently of any violation of territory in the sense of international relations-because the vessel was breach of nun cipal equipped and armed in defiance, or in fraud, of the municipal law of Great Britain, it was incumbent on the British authorities to seize her when she next entered a British port. In this contention there appears to be-I say it with all possible respect-considerable confusion of ideas, and a losing sight of elementary principles. I agree with M. Staempfli that, these vessels having been ordered by agents of the confederate government, it is the same thing as though they had been ordered by that government itself; and that there was, cousequently, in respect of them, a violation of the municipal law of Great Britain by the confederate government itself. But it is a great mistake to suppose that a breach of the municipal law of a neutral country, though relating to neutrality, becomes a violation of the territorial rights of the neutral, because committed by a belligerent power. The character of the offender does not change or affect the character or quality of the offense. Nothing short of a breach of neutrality, according to international law, can justify a resort to forcible measures on the part of the neutral as for a violation of his neutral rights.

Now, the equipment of the Florida in England for the service of the confederates constituted no violation of neutrality by international law, the vessel not having been armed, or sent out for the present purpose of war. On her way to Nassau she would have been subject to seizure as contraband of war; but that is all. In like manner, though the arming of the vessel at the desert island of Green Cay may have been, strictly speaking, a violation of British law, yet, there being no present purpose of war, it was no violation of neutral territory within the rules of international law. It was, at the utmost, a breach of the law of Great Britain. And here the distinction should be kept in view to which I have already referred, and which seems to me to have altogether been lost sight of, namely, that a breach of the municipal law, though it may be of a law relating to neutrality, does not constitute a breach of neutrality as between nations. That which, if done by a subject, would simply amount to a breach of his own law, does not become a violation of neutrality because done by a foreigner. Nor is it the more so because done by a belligerent government, or the agent of such government. Let such a government send agents to purchase ships equipped and ready for war, not with any immediate purpose of using them as ships of war on leaving port, but that they may be conveyed to its own country, to be eventually used for war, if such an act is an offense by local law, it will still be an offense against the local law alone. How, then, can it be said that for a violation of municipal law alone a neutral can seize a vessel, in respect of which that law alone has been violated, when it has become the property of the government of another state? No principal of the law of nations is more firmly settled or universally acknowledged than that an independent sovereign or govern.

1" Règles internationales et diplomatie de la mer," vol. ii, p. 298.

ment—and, for this purpose, the government of a state, as yet acknowledged only as a belligerent, must be taken to be an independent government-is not amenable to the municipal law of another country. All rights, all obligations, all duties, all liabilities, as between sovereign and sovereign, state and state, government and government, depend wholly and solely either on express convention or on the principles and rules of the common law of nations. How, then, in the matter of an infraction of the municipal law only, could a neutral state have recourse, as against a belligerent government, to the powers which that law gave it against its own subjects alone?

But assuming even that a neutral state would be entitled to seize a vessel, though armed with a commission from a belligerent power, by reason of some offense committed against its neutrality, as a reparation for a wrong done against itself, how can it possibly be asserted that it is under any obligation to do so? It may be said that a nation is bound to maintain its own sovereignty, to vindicate its honor, to maintain the inviolability of its territory; and, morally speaking, this may be true; but, I ask, what law is there which makes it obligatory on it to do this? A state, like an individual, may omit to insist on its rights, among others on its right of reparation for wrong done to it-unusquisque potest renuntiara juri pro se constituto. I cannot admit the argument that it is less free to do so, because it is to the interest of a belligerent that it should resent a wrong by force, and so inflict damage on his adversary. To ask for apology or reparation is one thing; but to seize the ship of another state, is neither more nor less than a step towards war. It is an act which no powerful state would submit to; which would lead to reprisals, in all probability to war. It.is, therefore, one which no powerful state should have recourse to as against a weak one. Again, the neutral state may be a weak one-the wrong-doing belligerent a powerful one. The neutral may have the strongest motives for remaining at peace. Is it to be said that, in spite of all such considerations, the neutral, who would not have recourse to forcible measures so far as his own interests are concerned, is nevertheless bound to do so, no matter what may be the consequences, because the other belligerent has a right to insist on it? Yet this is what I understand our honorable president to maintain. I cannot, for my part, concur in such a view. What would be said if a state, the neutrality of which is secured by international arrangements, such for instance as Belgium, were to find itself in such a position? Would it be bound to have recourse to force because a belligerent had had a vessel of war constructed in one of its ports without its knowledge. I cannot think so. I adopt the conclusion of M. Ortolan. The question whether a breach of its neutral rights shall be resented or not is matter for the neutral state to determine. “C'est à lui à juger s'il y a eu, ou s'il n'y a pas eu, véritablement atteinte portée à sa souveraineté; s'il doit à sa propre dignité et aux obligations d'impartialité que lui impose sa qualité de neutre, de réclamer contre cette atteinte et de demander que les conséquences en soient annulées ou réparées; ou bien s'il veut garder le silence et n'élever aucune réclamation.”

No doubt a neutral state may, and in some instances ought-as, for instance, in such a flagrant case as the capture of the Florida by the Wachusett in the port of Bahia-to insist on redress. If the Florida had not sunk in the meantime, Brazil would have had a right to insist on her being set at liberty. But what if the Florida had not fortunately sunk, and the United States had refused to release her on the demand of Brazil? Though the latter might, if so minded, have made reprisals, or gone to war in vindication of her own rights, will any one

say that Brazil must necessarily, and as matter of obligation to the confederate government, have gone to war with the United States? Surely it is for a nation whose neutrality has been infringed to judge for itself whether it will or will not resent it. In some cases, as where the disparity of force is very great, it might not think it politic to do so. In others, where the degree of offense is comparatively slight, it might not be thought worth while to follow the matter up. In the present instance, Great Britain having no diplomatic relations with the confederate government, had no opportunity of remonstrating. This is an inconvenience which necessarily accompanies the recognition of belligerency without that of sovereignty, though the inconvenience is counterbalanced by other weighty considerations. Being thus unable to remonstrate, will it be said that Great Britain ought to have thrown the weight of her arms into the contest going on between the Confederate States and their more powerful opponent, because these vessels had managed to get away from her shores? especially when there was very great doubt whether, in respect of vessels armed out of British jurisdiction, any offense had been committed against international law. Would the world's opinion have sanctioned such a proceeding? At all events, would not public opinion have reprobated the seizure of these vessels as an act of unpardonable perfidy, if they had been allowed to enter British ports without notice, a deliberate intention of seizing them having been first formed?

In truth, this contention on the part of the United States is entirely an afterthought. During the whole course of the war, amid the numerous demands and reclamations made by the United States Government and its representatives, it never occurred to them, so far as I am aware, to suggest to Her Majesty's government to detain these vessels on their entering British ports. The conclusion, then, at which I arrive is that, even if Great Britain had a right by international law to seize these vessels, she was not bound to do so, and in common honor could not have done so without giving notice; that the United States had no right to insist on the seizure of them, and, at all events, never having attempted to do so, can have no right now to claim damages by reason of its not having been done.

Duty of excluding

But it has been said that, whether or not Great Britain had the right to seize, or whether or not, having the right, she was from neutral ports. under any obligation to exercise it, or whether or not she was bound to give notice of the intention to do so, the government should have resented the violation of its law by refusing to the delinquent vessels entrance into British ports.

The answer is, that the questions, whether the law of Great Britain had been broken, and whether the vessels were, in this sense, delinquent or not, were in each case disputable questions of mixed law and fact, which could not in any way be investigated between Great Britain and the Confederate States, and on which the opinions of high legal authorities in Great Britain were known to differ. It was the right and duty of the British government, under such circumstances, to take the course which it deemed most consistent with the maintenance of a strictly impartial neutrality; and if, under the influence of this motive, it decided (as it did) against attempting to discriminate between the different vessels bearing the public commission of the Confederate States, it acted in the exercise of its own proper right, and violated no obligation due to the other belligerent. The rules of the treaty of Washington are wholly silent as to any such obligation, and the law of nations imposes none. The question as to the effect of a belligerent commission in the case of

a vessel illegally armed in a neutral port came under the consideration of a circuit court of the United States in the case of the United States vs. Peters1—a case relating to a ship called Les Jumeaux, otherwise the Cassius. The result was remarkable, and is deserving of serious attention.

Case of the Cas

The vessel in question was originally a British cutter engaged in the Guinea trade. She was pierced for twenty guns, but only carried four guns in broadside and two swivels. Having passed sius. into the ownership of one Lemaître, a Frenchman, she came into Philadelphia with cargo as a merchant-vessel. Lemaître having admitted others of his countrymen to joint ownership, it was resolved to augment the force of the vessel with a view to her sale to the French government, then at war with England, as a ship of war. The attempt having been prevented by the United States Government, the vessel left Philadel phia in ballast; but some sixty miles down the river took in more guns and a considerable number of men. There was no doubt that what was done amounted to a breach of the neutrality act of 1794. One Guinet, who had taken part in arming the vessel, was indicted under that act, found guilty, and was sentenced to a year's imprisonment and a fine of $400.

The vessel was sold to the French government and duly commissioned as a vessel of war. Coming into Philadelphia the year after, with a prize, no less than three suits arose; one in rem for restitution of the prize one in personam against Davis, the officer in command of the Cassius, for damages for taking the prize vessel, neither of which are in point to the present purpose; in the third, a Mr. Ketland instituted a suit to have the vessel declared forfeited. The act of 1794 giving half the value of forfeited vessels to the informer, Ketland filed his information for the forfeiture, as it is technically termed qui tam, for the benefit as well of the treasury as himself, on the ground of the illegal equipment of the vessel the year before. On M. Adet, the French minister, writing to complain of this procedure, Mr. Pickering, then Secretary of State, replied that the executive could not take this case, any more than it could the preceding one relative to the same vessel, from the judiciary; and that the court had decided that it could not, in this penal proceeding, accept security for the Cassius in lieu of the vessel herself. He stated the unquestioned fact that the Cassius was, the year before, fully equipped and armed in the United States, and that the acts done had been already decided (in the trial of The United States rs. Guinet) to be a violation of their laws of neutrality; and he added, that the French minister ought not to be surprised that this matter should become a subject of judicial inquiry, and the effect of the subsequent alleged transfer to the French government a matter of judicial decision.

The United States Attorney was instructed by the Government to intervene in these suits, and to suggest for the consideration of the court, as matter of defense, the transfer of the vessel to the French government, and her having been commissioned by the latter, which he did in the form of a suggestion. In the suit in rem against the vessel, at the term of the court in April, 1796, the Secretary of State, Mr. Pickering, requested M. Adet to furnish the evidence of the bona fide transfer to the French government, for the use of the United States attorney. M. Adet replied, declining to furnish proofs to the judiciary of a sale and payment, saying that his relations were solely with the Executive.

1 Reported in 3 Dallas, 121, and in a note to Dana's edition of Wheaton, reprinted in the United States Documents, vol. vii, p. 18.