for the purpose of escaping from the danger of the seas, or purchasing provisions and making repairs, indispensable to the continuance of the voyage. Everything accorded beyond this must be regarded as an act of international sociability or comity, not of humanity or obligation.

Accordingly, on this point there is much diversity in the practice of the nations of christendom. In general, the merchant ships of belligerents are received in port by the neutrals for all purposes, whether of shelter or commerce, just as in time of peace. As to the admission of ships of war, privateers, and prizes, whether made by the former or the latter, some nations are less liberal and others more, according to their own views of their interest, convenience, and sovereignty. ("Hautefeuille, Des Droit et des Dévoirs des Nations Neutres," tom., i, pp. 475, 476.) Upon this part of the subject, therefore, it becomes necessary to enter into more specific explanations.

The inquiry concerns three distinct things: 1st, ships of war; 2dly, privateers; 3dly, prizes of war.

1. Of ships of war.

In the present state of the law of nations, it is universally conceded that the armed ships of a belligerent, whether men-of-war or private armed cruisers, are to be admitted, with their prizes, into the territorial waters of a neutral for refuge, whether from chase or from the perils of the sea. That is a question of mere temporary asylum, accorded in obedience to the dictates of humanity, and to be regulated by the specific exigency.

Going beyond this, we find that the ships of war of a belligerent are generally admitted into the ports of the neutral, even when there is no exigency of humanity, but still under certain reservations. The neutral nation has perfect right so to measure the extent of the asylum thus accorded, as to cover its own safety and retain the means of enforcing respect for its own sovereignty. Thus, in Europe, it generally happens that war is commenced between two or three of the great powers for purposes of mutual jealousy or ambition of their own, and as to which the other states are comparatively indifferent in feeling or interest, or have conflicting interests, which impel them to remain neutral in the war. But, very soon, as the burden of the war presses on one or another of the belligerents, he, having undertaken more than he can accomplish alone, seeks to persuade or compel the neutral states to join him; or he cannot efficiently attack his enemy without occupying the territory of the ports of some neutral state. Or, perceiving that his own commercial resources are wasting away in the war, he looks resentfully on the prosperity of some neutral state, whose commerce flourishes at his expense. Or, jealous of the intentions of a neutral state, and fearing it may join his enemy, he seeks to anticipate such an event by

crippling the military forces of such neutral state. Or, finally, [367] becoming fatally engaged in a protracted war, until it has at

length degenerated into a mere willful contest of pride and passion, the belligerent enters upon the desperate and frantic plan of starving his adversary by cutting off all the neutral commerce, the very attempt to do which is an outrage on the law of nations, and can be carried out only by the perpetration of every kind of violence and fraud on the neutral nations.

We, in the United States, had ample experience of all these things in their most exaggerated form during the course of the reciprocally vindictive hostilities of twenty-five years, waged between Great Britain on the one hand, and republican or imperial France on the other; and although, in the single matter of neutral rights on the sea, the maritime

powers, parties to the existing war in Europe, started from a liberal point, if not of doctrine, yet of practice at least, as the progress of intelligence and of civilization required them to do, at the same time it is easy to perceive now a strong tendency to unjust belligerent pressure on the independent volition of neutral states in the conduct of Great Britain and France.

As a consequence of these considerations, it is customary for neutral powers to prescribe, either by treaty or by regulations when the exigency arrives, the number or weight of metal of belligerent ships of war admissible in the neutral ports, to limit the number of such ports, to define what anchorage shall be free, as whether within or only without the harbor fortifications-in other respects, to limit and regulate the privilege of asylum. (Hautefeuille, tom. ii, p. 98.)

A pertinent illustration of this doctrine occurs in the conduct of Denmark and Sweden in the present war. Sweden and Denmark, by reason of their proximity to the seat of war in the Baltic, and of their liability to inconvenience, though the solicitude of Great Britain and France to engage them in the alliance against Russia, having determined upon strict neutrality, perceived the necessity of imposing regulations on the asylum to be accorded to belligerent ships in their ports.

Accordingly, in deciding to admit belligerent ships of war and of commerce into the ports, whether of Sweden or Norway, the Swedish government reserved to itself the faculty of interdicting to ships of war entry into the port of Stockholm inside of the fortress of Maxholm; that of Christiana, inside of the port of Kaholm; the interior basin of the military port of Horten, the ports of Carlsten and Carlskrona within the fortifications; and the port of Slito, in Gothland, inside the batteries of Eneholm. (See the Swedish circular in the Post-och-Inrikes Tidninga, of January 24, 1854.)

In the same spirit, and in the exercise of the same right, Denmark has reserved to herself the faculty of interdicting to belligerents' ships of war, and even to transport ships, the entry of Christiana. (See letter of Mr. Torben Bille to Mr. Marcy, House Ex. Doc., 1st ses. 33d Congress, No. 103, p. 16. See also in the same document the letter of Mr. Sibbern to Mr. Marcy, p. 17.)

2. Privateers.

As to private vessels armed to cruise in time of war, although these constitute a valuable and efficient part of the military marine, and have the same relation to national ships of war that volunteer troops on land have to the regular army, yet they are not held as equally entitled to the right of asylum, because it is generally assumed that greater respect is due to national ships, and that the officers of the latter can better be relied on for the maintenance of discipline and the prevention of disorders and abuses. Hence, it is not uncommon for neutral nations wholly to exclude from their ports the privateers of the belligerent powers. (Hautefeuille, tom. ii, p. 136.) An illustration of this doctrine also occurs in the action of Sweden at the present time, she having, by a decree of April 8, 1854, not only forbidden privateers to enter her ports, but even to stay in her roads. (Hosack's Rights of Neutral Commerce, p. 114; House Ex. Doc. ut supra, p. 20.)

3. Finally, as to prizes of war, the same right exists, either to admit them or wholly to exclude them from the ports of the neutral state, according to its discretion. (Hautefeuille, tom. ii, p. 155; Martens, Droit des Gens, tom. ii, p. 252.)

Thus, at the present time, Sweden and Denmark have each interdicted the sale of prizes in their ports, or even their entry, except in recog

nized cases of distress. (See the letters of Mr. Sibbern and of Mr. Torben Bille, ubi supra.)

There is a temporary act of Congress, not now in force, namely, that of May 15, 1820, which illustrates the above doctrine. It enacts that for a period of two years ensuing no foreign armed vessels shall be permitted to enter into any harbor belonging to the United States, excepting only those of Portland, Boston, New London, New York, Philadelphia, Smithville, (North Carolina,) Charleston, and Mobile, unless when such vessels shall be forced in by distress by the dangers of the sea, or by being pursued by an enemy, and unable to make any of the ports enumerated; and, in this case, the vessels are to be subject to such regulations as may be prescribed by the President. All foreign armed vessels are also forbidden to enter or remain within the waters of the United States, except in direct course to or from the ports enumerated. And the President was authorized to employ the public force, either by land or sea, for the purpose of exacting respect in this relation for the territorial jurisdiction of the United States. (Stat. at Large, iii, p. 597.) It is to be remembered that in regard to prizes, as in regard to ships of war and privateers, impartiality of regulation, as between the bellig erents, is requisite. (Azuni, Maritime Law, vol. ii, p. 321.)

But it is not material whether such regulations operate more to the benefit of one or the other belligerent power.

Suppose, for instance, a maritime war between Great Britain and the United States: in such case an asylum in the French ports would be no object to English vessels, but of the greatest utility to American vessels; but, nevertheless, France discharges her whole duty of impartial neutrality in admitting to her ports, on the same conditions, the vessels either of Great Britain or the United States. (Hautefeuille, tom. i, p. 476.)

Thus also during the present war, the right of asylum in the ports of the United States may be useful to the cruisers of Great Britain and France, but not to those of Russia; and, on the other hand, to the merchant-vessels of Russia, and not to those of Great Britain or France. So, also, the regulations of Denmark and Sweden do in

fact operate only on the ships of war, privateers, and prizes [368] *belonging to Great Britain and France. Still, this inequality of

operation does not serve to change the rule of law.

But a neutral power may be so confident in its own strength, or so remote from the immediate scene of war, as not to have conceived it necessary to issue any regulation on the subject of belligerent asylum. In that case the right of asylum is presumed; for it would be unjust for the neutral state to reject it without previous notification to the belligerent states. (Vattel, 1. iii, ch. 7, section 132; Wheaton, p. 471.) And such, at the present time, is the relation of the United States to this question.

It must be admitted, therefore, that the British ship of war President, with her prize, the Sitka, had a perfect right to enter the port of San Francisco, and remain there a reasonable time for any of the purposes compatible with the neutrality of the United States.

That being the case, it seems to me unimportant whether the President, with her prize, entered the port of San Francisco from a long cruise, or directly from a Russian port, or whether she had since the capture touched at a British port. No treaty, no act of Congress, no received rule of the law of nations, raises any such question. The United States might, if they please, exclude prizes of war from their ports either absolutely or under qualification in favor of cases of mere

distress, or previous condemnation, or non-accessibility of any port of the belligerent power itself. But the United States have not in fact done this, and the faculty of doing it is a political one and foreign to the powers and the duties of the courts, whether of the States or of the United States.

Any officer, bearing the proper commission of his government, had as much right to enter the port of San Francisco in command of the Sitka, as if in command of the President, without its being the right or the duty of the United States to demand explanations as to her last or any previous port of departure.

It being thus demonstrated that the Sitka was rightfully within the port of San Francisco, it only remains to consider what jurisdiction, if any; the United States had over prisoners of war, if any there were, on board the Sitka.

Now, the courts of the United States have adopted, in its fullest extent, the doctrine that they have no jurisdiction to redress any supposed torts committed on the high seas, even as against our own citizens, by a cruiser of a foreign and friendly power, except when such cruiser has been herself guilty of a violation of our neutrality. (L'Invincible, 1 Wheat., p. 239.) There can be no question of such exception here, because the captor was a national ship of war.

Our courts have also adopted unequivocally the doctrine that a foreign ship of war of a foreign sovereign, at peace with the United States, coming into our ports and demeaning herself in a friendly manner, is exempt from the jurisdiction of the country. She remains a part of the territory of her sovereign.

This doctrine has been affirmed by us on various occasions, among which is the emphatic case of a vessel, herself a prize, taken from a citizen of the United States. (The Exchange, 7 Cranch, 116. See also the case of the Betsey, 3 Dal., 6; the Cassius, ib., 121; the Alerto, 9 Cranch, 359; L'Invincible, 2 Gal., 29; and Guestier rs. Hudson, 4 Cranch, 293.)

Exceptions to this doctrine exist, which exceptions constitute some of the most critical questions of public law. (Ortolan, Diplomatie de la Mer, tom. ii, liv. 3, ch. 8.)

Such, for instance, is the case of uncondemned prizes which may have been captured in violation of the neutral immunity in the regard of place, or by a cruiser equipped in violation of the rights of the neutral sovereign, and are then brought within his jurisdiction, either voluntarily or by stress of weather. (Wheaton, p. 471.)

Here it is unnecessary to consider these exceptions, for the reason already intimated, that in the present case it is not pretended that either in manner and place of capture, or the character and equipment of the captor, there was any violation of the rights of the United States. (Wheat., p. 470.)

From all these premises, the consequences are inevitable in regard to the prisoners on board the Sitka. So long as they remained on board that ship, they were in the territory and jurisdiction of her sovereign. There the neutral has no right to meddle with them. If, indeed, they be landed, then they pass from the jurisdiction of the belligerent to that of the neutral; they become practically free, because their detention is forcible, and force cannot be exercised on the neutral territory, unless, indeed, the neutral consent to their being landed, and afterward re-embarked, as it well might from motives of humanity, for instance, to succor the sick or wounded, without any violation of its neutrality,

or any derogation from its own rights of territorial sovereignty. (Hautefeuille, tom. ii, p. 157.)

I conclude, for these reasons, that the courts of the State of California had no jurisdiction whatever as to these prisoners on board the Sitka.

Now, can it be affirmed that it is one's duty, at whatever inconvenience, to obey a writ issued by a court having no jurisdiction? With all due respect for courts of justice, it is impossible for me to affirm this. I cannot say that, in my opinion, it was the duty of the commander of the Sitka to remain in port to answer to the process of a court having no jurisdiction of the matter in issue. Especially, if there was any danger of his lawful prisoners being taken away from his custody by such process, his duty to his own sovereign required him to withdraw from the circumstances creating such danger. The ship which he commanded was a part of the territory of his country; it was threatened with invasion by the local courts; and, perhaps, it was not only lawful, but highly discreet in him to depart, and so avoid unprofitable controversy. I do not mean to say or to intimate that the issue of a writ of habeas corpus, in the present instance, was particularly exceptionable, at least in comparison with other cases of more obvious indiscretion in this respect, which daily occur in the United States. But, indeed, if there be anything in the practice of the courts of the States at the present time most of all exceptionable, it is the indiscreet levity with which they issue the writ of habeas corpus ad subjiciendum, regardless of the old and sound rule to refuse it when the petition

itself shows the absence of good cause, or that the petitioner is [369] lawfully held by some other jurisdiction. (Ex parte *Kearney,

7, Wheat., 38; Ex parte Watkins, 3 Peters, 201; Ex parte Milburn, 9, ib., 704.) That great prerogative writ is now so cheapened by the multitude of hands to which it is committed, and by the consequent abuse of it, that it is itself rapidly degenerating into a mere abuse.

Perhaps, in due courtesy to the courts of California, the commander of the Sitka might well have made return to the writ of habeas corpus, if he had service of it while on shore. But how the service was made does not appear. And however this may have been, as on the face of the writ the court had no jurisdiction, it does not seem to me that his omission to make this return even constitutes an act of such gravity as to deserve to become the subject of complaint to his government. I have, &c.,

(Signed)

Hon. WM. L. MARCY,

Secretary of State.

C. CUSHING.