PROBLEMS OF INTERNATIONAL LAW 521 



Dana says that the " decision was not satisfactory to the United 

 States Government, as they did not consider the fact on which it 

 rested as established in proof." He thinks the rule should be con- 

 fined to cases where the vessel " makes a fair choice to take the 

 chances of a combat rather than to appeal to neutral protection." 



Lawrence thinks the doctrine of the decision has been fully ac- 

 cepted by British publicists, while American jurists have been dis- 

 posed to deny or qualify it, but he reaches the conclusion that the 

 side which in a neutral harbor fights purely in self-defense can 

 hardly on that account forfeit the right to redress. 2 



The rule that the belligerent captured in a neutral port cannot 

 recover compensation from the neutral power unless he demanded 

 protection and there was failure to afford it, is by no means an indi- 

 cation that the neutral may not demand satisfaction for the invasion 

 of its sovereignty without any such circumstances. The basis of 

 recovery is the negligence of the neutral in one case, but the basis 

 of recovery in the other is the trespass of the offending belligerent. 



Mr. Justice Story, a person quite as extensively versed in public 

 law as Napoleon the Third, considered that a belligerent attacked 

 in neutral territory is justified in using force in self-defense. 3 



It is impossible that international law should be so divorced 

 from the law of nature and all municipal law as to hold otherwise, 

 and in the private law of self-defense one may always justify upon 

 the appearance of necessity. 



It is believed that later practice and decisions in no way warrant 

 the invasion of a neutral port even to seize or attack a hostile cruiser 

 harboring there. Ortolan long since, while strongly supporting the 

 exterritoriality of ships of war, yet declared that if the vessel of 

 war in territorial waters undertakes to commit any acts of aggression 

 or hostility or violence, it is the right of all nations immediately to 

 take all the measures and employ all the means necessary for a 

 legitimate defense. 4 It is literally defense against a hostile invasion. 



The more recent precedents are as follows: Near the opening of 

 the Franco-Prussian war, a French ship, after an unsuccessful combat 

 with a German ship off the harbor of Havana, escaped into the 

 harbor. The German vessel respected the neutrality of the Spanish 

 port and did not further molest the French ship, which remained 

 at Havana until the close of the war. 5 



The United States warship Wachusett in 1864 attacked and cap- 

 tured the Confederate cruiser Florida in the harbor of Bahia and 



1 Dana's A T otes to Wheaton, sec. 430. 



2 T. J. Lawrence's International Law, p. 540. 



3 Hall's International Law (ed. of 1904), p. 625, and note citing The Anne, 3 

 Wheaton, 477. See also T. J. Lawrence, International Law, p. 540. 



4 Diplomatic de la Mer, rx, 218. 



5 Harper's Weekly, August 27, 1904, p. 1309. 



