The Schooner Sophie, 6 C. Rob. 138
A British ship, having been captured by the French, was condemned in 1799 by a French Consular Court in Norway. Other proceedings were afterwards had, on former evidence in the case, in the regular Court of Prize in Paris and the sentence of the Consular Court was affirmed. Sir William Scott said, "I am of opinion, therefore, that the intervention of peace has put a total end to the claim of the British proprietor, and that it is no longer competent to him to look back to the enemy's title, either in his own possession, or in the hands of neutral purchasers."
126. Neutral Territorial Jurisdiction
The Caroline
People v. McLeod, 25 Wendell, 483
During the Canadian rebellion of 1837-1838, a force was sent in the night by the British commander to capture the steamer Caroline, owned by an American. The steamer was engaged in transporting war material and men to Navy Island, in the Niagara River, through which runs the line separating the British from the American possessions. The vessel not being in her usual place in Canadian waters, the force went into American jurisdiction and seized and destroyed her. One Durfee, an American, was killed. To the American assertion that the proceeding was an outrage, the British Government replied that the insurgents had used American ground as the starting-point of their expeditions and as their base of supplies. The controversy was renewed by the arrest, in 1841, in the state of New York, of one McLeod, and his indictment for the murder of Durfee. Great Britain demanded the release of McLeod, stating that as he was an agent of the British Government engaged at the time in a public duty, he could not be held amenable to the laws of any foreign jurisdiction. Mr. Webster, then Secretary of State, admitted the correctness of the British contention, but seemed powerless to obtain the release of McLeod, on account of the inherent weakness of the Federal system.[503] The Supreme Court of the state of New York held in People v. McLeod, that McLeod could be proceeded against individually on an indictment for arson and murder, though his acts had been subsequently averred by the British Government. This view was generally condemned by jurists;[504] but the difficulty soon ended by the acquittal of McLeod. The British Government's contention was that the seizure of the Caroline was excusable on the ground stated by Mr. Webster himself as "a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation."
The Twee Gebroeders, 3 C. Rob. 162
This case holds that a ship within three miles of neutral territory can not send boats beyond the line of division for the purpose of capturing enemy vessels.
129. Positive Obligations of a Neutral State
The Alabama Cases
Up to the period of the American civil war the opinion obtained among many that a vessel of war might be sent to sea from a neutral port with the sole liability to capture as legitimate contraband, with the exception that, if she was ready to go in condition for immediate warlike use, it was the duty of the neutral to prevent her departure. In 1863 during the American civil war this view was practically taken by the British court in the case of the Alexandra;[505] but the vessel after her release was taken on a new complaint at Nassau and held until after the end of the war. Lawrence says that the attitude of the British Government in regard to this vessel, its purchase in 1863 of two iron-clad rams of the Messrs. Laird for the navy, the construction, destination, and intended departure of which occasioned the now famous correspondence between Lord Russell and Mr. Adams, the detention of the Pampero, which was seized in the Clyde, until the end of the American civil war, and the preventing the sale of "Anglo-Chinese gunboats against the advice of its own law officers," indicated that that government "had uneasy doubts as to the validity of the doctrine laid down in their law-courts and maintained in their dispatches."[506] This doctrine would admit of a ship of war going to sea from a neutral port without arms, which she might receive on the high seas from another vessel which had sailed from the same port. For example, the Alabama left Liverpool in 1862 ready for warlike use, but without warlike equipment. This and her crew were received on the high seas from other vessels which had cleared from Liverpool; and her career as a Confederate cruiser then began. The cases of the Florida, the Georgia, and the Shenandoah were almost identical. The spoliations committed by these vessels led to the Alabama claims, the British maintaining that the American contention that it was the duty of a neutral to prevent the departure of all vessels that could reasonably be expected as about to be used for warlike purposes was unsound.[507]