The law relating to enemy's property in neutral vessels, and to neutral property in enemy's vessels will be discussed in a later chapter of this work. CLVIII. Though a Neutral may, in the case which has been mentioned, be entitled to demand restitution of the belligerent's capture; yet he has no right to inquire into the validity of a capture, except in cases in which the neutral jurisdiction has been violated. In such cases only, the neutral power will, in spite of a sentence of condemnation in the court of the belligerent, restore the property if it be found within its jurisdiction, and in the hands of the offender.(y) It belongs, however, exclusively to the neutral government to raise the objection to a title, founded upon a capture, made within the neutral territory. So far as the adverse belligerent is concerned, he has no right to complain if the case be duly tried before a competent court.(z) The government of the owner of the captured property, may indeed call the Neutral to account, for permitting a *fraudulent, unworthy, [*229] or unnecessary violation of its jurisdiction, and such permission may, according to the circumstances, convert the Neutral into a belligerent. CLIX. The civil war in Portugal, in the years 1828–9, gave rise to a very important question respecting the duties of a Neutral State pending such contest. In 1827, Don Pedro, having retained to himself the empire of the Brazils, formally renounced the throne of Portugal in favour of hist daughter Donna Maria, having delegated to his brother Don Miguel the office of Regency of the kingdom, with the intention that he should marry his niece. Donna Maria II. was recognized by Great Britain and the other great Powers of Europe as the legitimate Sovereign of Portugal. Don Pedro imagined that he had adopted the most efficacious expedient for reconciling the parties of the Constitutionalists and the Absolutists which divided Portugal, and also that he had secured to that country the enjoyment of those free institutions which he had recently bestowed upon it. Don Miguel, however, after a very short period, violated all his engagements, placed himself at the head of the Absolutists, procured himself to be proclaimed king in 1828, proscribed the Constitutionalists, and plunged the country into the horrors of a most barbarous civil war. The Constitutionalists were at first defeated in the struggle. The King of Spain, though at first, in common with the other European Powers, he had withdrawn his ambassador from the court of the usurper, in a short time re-established with him relations of amity. The other sovereigns of Europe still kept aloof from any communication with the usurper-from any act which might be considered a recognition of this title. The Portuguese refugees, and the ministers of Don Pedro, insisted that they ought to do more, and drive him from his throne by positive interference. These applications were addressed (y) The Arrogante Barcelones, 7 Wheaton, (Amer.,) p. 496. La Amistad de Rues., 5 Ib., p. 390. (2) The Etrusco, 3 Rob., p. 162, n. particularly to the British Ministry. The Marquis of Barbacena, the Brazilian envoy, presented an official note to Lord Aberdeen, detailing the Treaties that regulated the *relations between Britain and [*230] Portugal; exposing the lawless course of Don Miguel's aggressions; and concluding that Miguel's proceeding, crowned by his assumption of the style and state of king, formed an attack upon the rights of the true Sovereign of Portugal, Donna Maria, which Britain, by her Treaties with that country, was bound to lend her aid in repelling. Lord Aberdeen, in answer, admitted to their fullest extent the obligations created by these Treaties; but he maintained that they did not countenance the demand now made of an armed interference, on the part of Britain, to remedy the consequences of an internal revolution. "It is assumed," he said, "that the usurpation of the throne of Portugal by the Infant Don Miguel has given to Her Most Faithful Majesty the right of demanding from this country effectual succours for the recovery of her crown and kingdom. But in the whole series of Treaties there is no express stipulation which can warrant this pretension, neither is such an obligation implied by their general tenor and spirit. It is either for the purpose of resisting successful rebellion, or of deciding by force a doubtful question of succession, that Great Britain is now called upon to act. But it is impossible to imagine that any independent State could ever intend thus to commit the control and direction of its internal affairs to the hands of another Power. For, doubtless, if His Britannic Majesty be under the necessity of furnishing effectual succours, in the event of any internal revolt or dissension in Portugal, it would become a duty, and, indeed it would be essential, to take care that no such case should exist, if it could be prevented. Hence a constant and minute interference in the affairs of Portugal would be indispensable; for his majesty could never consent to hold his fleets and armies at the disposal of a King of Portugal, without exercising those due precautions, and that superintendence, which would assure him that his forces would not be employed in averting the effects of misgovernment, folly, or caprice. Is this a condition in *which any State, professing to be independent, could endure to exist? (a) The truth is, that the whole [*231] spirit of the Treaties, as well as their history, shows, that the principle of the guarantee given by England is the protection of Portugal from foreign interference." The British Government refused, therefore, to interfere in this domestic quarrel; and, holding that it was not entitled to make any distinction between the claimants of the Portuguese Crown, in so far as their respective pretensions were supported only by domestic force, considered itself bound to observe, in regard to all military operations, a strict Neutrality. A great number of Portuguese refugees, most of them military men, had arrived in England, taking up their residence principally in Portsmouth, Falmouth, and the neighbourhood. As it was believed that they were meditating to fit out some expedition from these ports against Don Miguel, the British Government, holding that to permit this would be (a) Vide ante, vol. i. pp. 434, 441-2, 457; vol. ii. pp. 76-7. a breach of Neutrality, informed the Brazilian Minister, that it would not allow such designs to be carried on in British harbours, and that, for security's sake, the refugees must remove farther from the coast. The envoy then stated that those troops were about to be conveyed to Brazil; and accordingly four vessels, having on board 652 officers and men, under the command of General Count Saldanha, who had been the constitutional Minister of War, sailed from Plymouth. The British Government suspected that the true design was to land these troops at Terceira, although the ostensible destination was Brazil. Notice was given to them before they sailed, that any such attempt would be resisted, and a small force of armed vessels, under the command of Captain Walpole of the Ranger, was dispatched beforehand to Terceira, to enforce the prohibition. His instructions were to cruise off the island, to inform the Portuguese, if they appeared, that he had authority to prevent their landing; *«and, should they persist, notwithstanding such warn [*232] ing, in hovering about, or in making any efforts to effect a landing, you are then to use force to drive them away from that neighbourhood, and keep sight of them until you shall be convinced, by the course they may steer, and the distance they may have proceeded, that they have no intention of returning to the Western Islands, or to proceed to Madeira." The expedition of Count Saldanha appeared off Terceira on the 16th of January, and was discovered by Captain Walpole standing right in for Port Praya. He fired two shots, to bring them to, but they continued their course. The vessel, on board of which was Saldanha, although now within point blank range of the Ranger's guns, seemed determined to push in at all hazards. To prevent him from effecting his object, Captain Walpole was under the necessity of firing a shot at the vessel, which killed one man and wounded another. The vessel then lay to, and to a note from Captain Walpole, inquiring what was their object in coming thither, Saldanha answered, "My object in appearing here is to fulfil the orders of Her Majesty the Queen of Portugal, and which prescribe me to conduct, unarmed, without any hostile appearance, to the isle of Terceira, the men that are on board the four vessels in sight, which island has never ceased to obey and acknowledge, as its legitimate Sovereign, Her Faithful Majesty Donna Maria II. As a faithful subject and soldier, I think it unnecessary to assure you that I am determined to fulfil my duty at all peril." Captain Walpole replied, that he too had instructions to obey, and an imperious duty to perform; that both of them prevented him from allowing the Count, or any part of his force, to land, either at Terceira, or on any of the Western Islands or the Azores, or even to continue in that neighbourhood; that, therefore, unless the Count immediately quitted the vicinity of the islands, he should be obliged, and was determined, to use force to compel him to do so. Saldanha then declared that *he consi[*233] dered himself, and his men, as being, in these circumstances, Captain Walpole's prisoners; that they would follow his vessel wherever he chose to take them, but must have a written order to that effect, and be supplied with water and provisions. Captain Walpole simply answered, that they were at liberty to go to England, to France, or wheresoever they chose, provided only they quitted the islands. Saldanha still insisted that he should be told whether or not he was considered a prisoner of war: if he was, he would follow; if he was not, he would pursue his course, and endeavour, at every risk, to fulfil his instructions: “Only force shall prevent me from executing the orders of my Queen." Captain Walpole's reply still was, "Go where you choose, but don't stay here: if you persist in hovering about these islands, it is my duty and firm determination to carry those measures you are already in possession of into full effect. I therefore trust you will see the wisdom of quitting this neighbourhood." The Portuguese vessels then made sail for the westward, accompanied by the British ships. They continued together till the 24th of January, when Captain Walpole, having sent a note to Count Saldanha, resquesting to know whether it was his intention to proceed to England, as the captain, who was himself to return to Terceira, wished to forward despatches to Government, Count Saldanha returned the following answer: "Sir,—I am astonished at your question. What, Sir? you came to Terceira to make us prisoners; you have escorted us these eight days; you have prevented me fulfilling my orders; you have endangered the lives of so many faithful subjects of the most ancient allies of your sovereign; you have made us consume our scanty provisions; you have positively obliged me not to separate my vessels; you have used over me the discretion of a conquror, and, at the end of all this, you ask me where I am going! I do not know, Sir, where to; the only thing I know is, that I am going wherever you lead us, according to my positive assertions in every one of my official *letters." Captain Walpole answered: "Sir,-I am both surprised and con[*234] founded at the contents of your letter just received, after my repeatedly declaring to you in my correspondence that you were at liberty to pursue your own course and discretion. I have now to inform you, that your conduct has determined me to escort you no farther." The captain accordingly, having now brought them within five hundred miles of Scilly, and seeing them still pursuing a channel course, parted company, and returned to his station at Terceira, leaving them to go wheresoever they might think good. In February he stopped another vessel, with about forty Portuguese officers and men, entering Port Praya, which had likewise sailed from London, and, having supplied her with water and provisions, sent her off from the islands. Count Saldanha, and his squadron, instead of returning to England, proceeded to Brest.(a) It is to be observed that Terceira alone of the Islands of the Azores, had not fallen into the possession of Miguel, but had remained faithful to the Queen of Portugal. The act of the British Government produced a great excitement in England, and very animated debates in Parliament, in which the principles of International Law were laid down with great precision, and discussed with no ordinary ability. The Government defended the instructions given to Captain Walpole, (a) Annual Register for 1829, vol. lxxi. p. 186, from which this account is taken. upon the ground that the refugees had fitted out a warlike armament in a British port: that the armament having been equipped under the disguise of a destination to Brazil, had not been prevented from sailing, as it otherwise would have been, out of the port of Plymouth; and that they were therefore bound, by the duties of Neutrality, to prevent by force an armament so equipped from disembarking, even in the harbour of the Queen of Portugal's dominions. The Government was supported by a majority *in both Houses of Parliament; but in the protest [*235] of the House of Lords, and in the resolutions of the House of Commons, the true principles of International Law are to be found. "PROTEST-TERCEIRA. "Because the forcible detention or interruption of the subjects of a belligerent State, upon the high seas, or within the legitimate jurisdiction of either of the Belligerents, by a Neutral, constitutes a direct breach of Neutrality, and is an obvious violation of the Law of Nations. And such an act of aggression, illegal and unjust at all times against a people with whom the interfering Power is not actually at war, assumed in this instance a yet more odious and ungenerous aspect, inasmuch as it was exercised against the unarmed subjects of a defenceless and friendly Sovereign, whose elevation and right to the Crown of Portugal had been earnestly recommended and openly recognized by his majesty, and whose actual residence in Great Britain, bespeaking confidence in the friendship and protection of the king, entitled both her and her subjects to especial favour and countenance, even if considerations of policy precluded his majesty's Government from enforcing her just pretensions by arms, [*236] *The Resolutions moved in the House of Commons were :(d)— "That prior to the 12th of December, 1828, her majesty the Queen Donna Maria II., had been recognized by his majesty, and the other great Powers of Europe, to be legitimate Queen of Portugal; and that at the period above-named, the said Queen was residing in this country, and had been received by his majesty with the accustomed honours of her royal rank. (b) Lord Clanricarde brought forward the resolutions in the House of Lords. The numbers on the division were: content present, 21; proxies, 10; total, 31. Non-content present, 61; proxies, 65; total, 126. Majority, 95.-Hansard's Parl. Deb. (N. S.,) vol. xxiii. pp. 738-81. Some Resolutions moved in March 23, 1830, by the Marquis of Clanricarde, in the House of Lords. Hansard's Parl. Deb. (1830,) vol. xxiii. pp. 780, 781. "The resolutions were moved in the House of Commons by Mr. Grant, and supported in a very elaborate and able speech by Dr. Phillimore. On the division the numbers were, for the motion, 78; against it, 191. Majority, 113."-Hansard's Parl. Deb. (N. s.) vol. xxiv. pp. 126-214, (April 28, 1830.) Debates in the House of Commons on the Resolutions moved by Mr. Grant. |