LECTURE VI.

OF THE GENERAL RIGHTS AND DUTIES OF NEUTRAL NATIONS.

THE rights and duties which belong to a state of neutrality form a very interesting title in the code of international law. They ought to be objects of particular study in this country, inasmuch as it is our true policy to cherish a spirit of peace, and to keep ourselves free from those political connections which would tend to draw us into the vortex of European contests. A nation that maintains a firm and scrupulously impartial neutrality, and commands the respect of all other nations by its prudence, justice, and good faith, has the best chance to preserve unimpaired the blessings of its commerce, the freedom of its institutions, and the prosperity of its resources. Belligerent nations are interested in the support of the just rights of neutrals, for the intercourse which is kept up by means of their commerce contributes greatly to mitigate the evils of war. The public law of Europe has established the principle, that, in time of war, countries not parties to the war, nor interposing in it, shall not be materially affected by its action; but they shall be permitted to carry on their accustomed trade, under the few necessary restrictions which we shall hereafter consider.

1. Neutrals must be impartial. — It belongs not to a common friend to judge between the belligerent parties, or to determine the question of right between them. (a) (x) The neutral is

(a) Bynk. 1. 7, c. 9; Burlamaqui, ii. pt. 4, c. 5, sec. 16, 17.

(x) The United States may co-operate in explorations in barbarous countries with other commercial powers, foster and protect a friendly trade therein, and give personal protection to its travellers and missionaries there; but it is not its policy to impeach any foreign government or to enter into alliances even for enforcing

neutrality in remote lands, such as Madagascar or the valley of the Congo. See 1 Wharton, Int. Law, §§ 51-54, 125. The privilege of protection and asylum in the legations of foreign diplomatic agents, though founded in humanity, is not a right allowed by the law of nations, but is frequently exercised by every civilized

not to favor one of them {116} to the detriment of the other;

and it is an essential character of neutrality, to furnish no aids to one party which the neutral is not equally ready to furnish to the other. (a)1 A nation which would be admitted

(a) Mr. Manning, after referring to the practice of former times on the subject of foreign levies in neutral countries, and critically examining the reasoning of Vattel, justly concludes that foreign levies may not be allowed to one belligerent, while refused to his antagonist, consistently with the duties of neutrality, unless such an exclusive privilege was granted by treaty antecedent to the war. Manning's Commentaries, 180.

1 Historicus, International Law, 147. See 117, n. 1.

State in barbarous or semi-barbarous lands. See 45 Albany L. J. 311; 17 Law Mag. & Rev. (4th Series), 93; 19 id. 38; 28 Am. Law Rev. 879. It is not conceded to exist in the civilized nations of Europe or their ships of war or in the Spanish-American States, and merchant vessels clearly have no right of asylum. See the authorities collected in Snow's Int. Law, 139-150; see also 7 Political Science Quarterly (1892), pp. 1, 197, 397. The right of asylum was, however, recently maintained by Portugal in support of the refuge accorded in 1894 at Rio Janeiro by her war-vessels to the fugitive Brazilian insurgents, and this action led to a rupture of diplomatic relations between the two governments. See 10 Law Quarterly Rev. 256.

"It is laid down by the publicists as an elementary principle that a man-of-war is permitted to enter a foreign port as a matter of courtesy, rather than of strict right.... On many occasions the government of the United States has in the most positive manner forbidden its diplomatic representatives to allow their protection to be made use of for the disturbance of the peace of the countries in which they reside. The duty of the government in respect to its men-of-war is yet more strict, since the extraterritoriality of a man-of-war is more nearly absolute than that of a minister's residence. Refugees may, if the local government deems it of sufficient

importance, be taken by force from a minister's dwelling, if he refuses to surrender them. But writers generally deny that this may be done as to a man-of-war, and, in proportion as the power of the local government to act for its own protection is diminished, the duty of the foreign government to prevent its generosity to individuals from becoming an injury to a friendly nation is increased." John Bassett Moore, upon The Case of the Salvadorean Refugees, in 29 Am. L. Rev. 1, 6. This article (p. 19) refers to the change made in 1894 in Art. 287 of the U. S. Navy Regulations, by which the privilege of asylum is to be accorded only in countries where, on account of frequent insurrections, and constant instability of government, local usage sanctions it, but even in the waters of such countries it should be refused except when required by the interests of humanity in extreme cases, such as the pursuit of a refugee by a mob; and officers are never to invite refugees to accept asylum.

A person who here claims a right of asylum in a foreign country, with which the United States has a treaty, but who, having been there kidnapped, is tried and convicted in a State court, cannot invoke the protection of the U. S. Supreme Court on error, because of the violation of such right of asylum, or on the ground of a denial of due process of law. Ker v. Illinois, 119 U. S. 436.

to the privileges of neutrality, must perform the duties it enjoins. Even a loan of money to one of the belligerent parties is considered to be a violation of neutrality. (b) A fraudulent neutrality is no neutrality. But the neutral duty does not extend so far as to prohibit the fulfilment of antecedent engagements, which may be kept consistently with an exact neutrality, unless they go so far as to require the neutral nation to become an associate in the war. (a) If a nation be under a previous stipulation made in time of peace, to furnish a given number of ships or troops to one of the parties at war, the contract may be complied with, and the state of peace preserved, except so far as the auxiliary forces are concerned. The cantons of Switzerland have been accustomed to furnish such assistance to the other European powers. In 1788, Denmark furnished ships and troops to Russia, in her war with Sweden, in consequence of a previous treaty prescribing the amount; and this was declared by Denmark to be an act consistent with a spirit of amity and commercial intercourse with Sweden. It was answered by the latter in her counter declaration, that though she could not reconcile the practice with the law of nations, yet she embraced the Danish declaration, and confined her hostility, so far as Denmark was concerned, to the Danish auxiliaries furnished to Russia. (d) But, if a neutral power be under contract to furnish succors to one party, he is said not to be bound if his ally was the aggressor; and in this solitary instance the {117} neutral may examine into the merits of the war, so far as to see whether the casus fœderis exists. (a) An inquiry of this kind, instituted by the party to the contract, for the purpose of determining on its binding obligation, holds out strong temptations to abuse; and, in the language of Mr. Jenkinson, (b) "when the execution

(b) Mr. Pickering's Letter to Messrs. Pinckney, Marshall, and Gerry, 2d of March, 1798. In Dewutz v. Hendricks, 9 Moore, C. B. 586, [S. C. 2 Bing. 314,] it was held to be contrary to the law of nations for persons residing in England to enter into engagements to raise money, by way of loan, for the purpose of supporting subjects of a foreign state in arms against a government in friendship with England, and no right of action attached upon any such contract.

(c) Vattel, b. 3, c. 6, sec. 99, 100, 101; ib. c. 7, sec. 104, 105; Martens, Summary, b. 8, c. 5, sec. 9; Mr. Jefferson's Letter to Mr. Pinckney, Sept. 17, 1793.

(d) New Ann. Reg. for 1788, tit. Public Papers, 99.

(a) Bynk. Q. J. Pub. b. 1, c. 9; Vattel, b. 2, c. 12, sec. 168.

(b) Discourse on the Conduct of the Government of Great Britain in Respect to Neutral Nations, 1757.

of guaranties depends on questions like these, it will never be difficult for an ally who has a mind to break his engagements, to find an evasion to escape."

2. Neutral Territory inviolable. — A neutral has a right to pursue his ordinary commerce, and he may become the carrier of the enemy's goods, without being subject to any confiscation of the ship, or of the neutral articles on board; though not without the risk of having the voyage interrupted by the seizure of the hostile property. As the neutral has a right to carry the property of enemies in his own vessel, so, on the other hand, his own property is inviolable, though it be found in the vessels of enemies. But the general inviolability of the neutral character goes further than merely the protection of neutral property. It protects the property of the belligerents when within the neutral jurisdiction. It is not lawful to make neutral territory the scene of hostility, or to attack an enemy while within it; and if the enemy be attacked, or any capture made, under neutral protection, the neutral is bound to redress the injury, and effect restitution. (c)1 The books are full of cases recognizing this

(c) Grotius, b. 3, c. 4, sec. 8, note 2; Bynk. b. 1, c. 8; Vattel, b. 3, c. 7, sec. 132; Burlamaqui, ii. pt. 4, c. 5, sec. 19.

1Ante, 85, n. 1; post, 128, n. 1.

Historicus, in his paper on belligerent violation of neutral rights (Int. Law, 147 et seq.), lays it down that the right which is injured by the act of the offending belligerent is the right of the neutral government, and not that of the other belligerent; and that, therefore, it is the neutral, and not the belligerent, who is strictly entitled to claim or to enforce the remedy (p. 152). The belligerent, he concludes, cannot demand at the hands of the neutral, as of right, compensation for the injury he may hare sustained, or impose upon the neutral the duty of obtaining for him any remedy beyond what may be had over persons and things within the neutral jurisdiction. If the offender has succeeded in evading the neutral jurisdiction, the belligerent cannot, as of right, call upon the neutral to pursue those further remedies to which the

latter might be himself entitled (p. 162). In support of his positions he cites Kent, i. 116, 119, 121. But the text does not seem to bear out the conclusion just stated. In the well-known case of the General Armstrong, the United States made a claim against Portugal for not preventing the destruction of a United States privateer by British vessels, when lying in a Portuguese harbor during the war of 1812. The case was submitted to Louis Napoleon, then President of the French Republic, who held that Portugal was excused, even admitting the principle that a neutral might be liable under such circumstances, by the alleged facts that the garrison was feeble, and that the American commander had not applied in proper time to the local officers for protection, but had resisted the attack with arms, thus himself violating the neutrality of the territory. Wheat. Lawrence's

principle of neutrality. In the year 1793, the British ship Grange was captured in Delaware Bay by a French frigate, and upon due complaint the American government caused the British ship to be promptly restored. (d) So in the case of the Anna (e) the {118} sanctity of neutral territory was fully asserted and vindicated, and restoration made of property captured by a British cruiser near the mouth of the Mississippi, and within the jurisdiction of the United States. It is a violation of neutral territory for a belligerent ship to take her station within it, in order to carry on hostile expeditions from thence, or to send her boats to capture vessels being beyond it. No use of neutral territory, for the purposes of war, can be permitted. This is the doctrine of the government of the United States. (a) It was declared judicially in England, in the case of the Twee Gebroeders; (b) and though it was not understood that the prohibition extended to remote objects and

(d) Mr. Jefferson's Letter to Mr. Ternant, of 15th May, 1793.

(e) 5 C. Rob. 373.

(a) Mr. Randolph's Circular to the Governors of the several States, April 16, 1795. The American Commissioners to the court of France (Benjamin Franklin, Silas Deane, and Arthur Lee), in their circular letter in 1777, to the commanders of American armed vessels, carried very far the extension of neutral protection, when they applied it indiscriminately to all captures "within sight of a neutral coast." Diplomatic Correspondence, by J. Sparks, ii. 110. Vide supra, Lecture II.

(b) 3 C. Rob. 162.

note 217; Wheat. Dana's note 208. In 1 Pistoye & Duverdy, Traité des Prises Maritimes, 107, a contrary doctrine to that of Historicus is laid down.

The right of the neutral government to reparation from the offending belligerent is not disputed. During the late war, in 1864, the rebel steamer Florida was taken out by night from the Brazilian port of Bahia, where she had sought refuge, by the Wachusett, a war vessel of the United States. The American government disavowed the act, and although unable to restore the Florida, which was accidentally sunk, gave other reparation satisfactory to Brazil. Wheat. Dana's note 208. The matter is related with some temper in the Annual Register, 1864, p. 281. See also Mr. Seward to

Lord Lyons, June 10, 1863, 1 Dip. Corr. 1863, p. 581, for another admission of the same principle. [The Florida, 101 U. S. 37, was a case arising out of the transaction here mentioned. It was held that no title to the Florida vested in the United States, and that the vessel could not be libelled as prize. — B.]

It is undoubtedly true, that no private person can rest a claim for the restoration of prize in the courts of the captor on the ground that the capture was made in neutral waters, and that the neutral nation whose rights have been infringed alone can interpose. The Lilla, 2 Sprague, 177; The Sir William Peel, 5 Wall. 517; The Adela, 6 Wall. 266; The Anne, 3 Wheat. 435; Wheat. Dana's note 209.

uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared, that no proximate acts of war were in any manner to be allowed to originate on neutral ground; and for a ship to station herself within the neutral line, and send out her boats on hostile enterprises, was an act of hostility much too immediate to be permitted. No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence. The neutral is to carry himself with perfect equality between both belligerents, giving neither the one nor the other any advantage; and if the respect due to neutral territory be violated by one party, without being promptly punished by {119} just animadversion, it would soon provoke a similar treatment from the other party, and the neutral ground would become the theatre of war. (a)

If a belligerent cruiser inoffensively passes over a portion of water lying within neutral jurisdiction, that fact is not usually considered such a violation of the territory as to affect and invalidate an ulterior capture made beyond it. The passage of ships over territorial portions of the sea is a thing less guarded than the passage of armies on land, because less inconvenient, and permission to pass over them is not usually required or asked. To vitiate a subsequent capture, the passage must at least have been expressly refused, or the permission to pass obtained under false pretences. (b)

The right of a refusal of a pass over neutral territory to the troops of a belligerent power depends more upon the inconvenience falling on the neutral state, than on any injustice committed to the third party, who is to be affected by the permission or refusal. It is no ground of complaint against the intermediate neutral state if it grants a passage to belligerent troops, though inconvenience may thereby ensue to the adverse belligerent. It

(a) When Dom Miguel, 1828, ascended the throne of Portugal, by a vote of the Portuguese Cortes, in violation of the title by succession of his niece, Donna Maria, England declared herself neutral as between those claimants, in their domestic quarrel for the crown. Having declared her neutrality, England maintained it with fidelity and vigor. She would not allow any warlike equipments by either party in her ports; and when an armament had been fitted out in disguise, and sailed from Plymouth, in support of the claims of Donna Maria, England sent a naval force, and actually intercepted the Portuguese armament in its destination to the island of Terceira.

(A) The Twee Gebroeders, 3 C. Rob. 336.

is a matter resting in the sound discretion of the neutral power, who may grant or withhold the permission, without any breach of neutrality. (c)1 No belligerent power can claim the right of passage through a neutral territory, unless founded upon a previous treaty; and it cannot be granted by a neutral, where there is no antecedent treaty, unless an equality of privilege be allowed to both belligerents. (x) This is the reasonable and just rule to be deduced from the opinions of jurists and the conventional law of modern nations. (d)

{120} Bynkershoek (a) makes one exception to the general inviolability of neutral territory, and supposes that if an enemy be attacked on hostile ground, or in the open sea, and flee within the jurisdiction of a neutral state, the victor may pursue him dum fervet opus, and seize his prize within the neutral state. He rests his opinion entirely on the authority and practice of the Dutch, and admits that he had never seen the distinction taken by the publicists, or in the practice of nations. It appears, however, that Casaregis, and several other foreign jurists mentioned by Azuni, (b) held a similar doctrine. But D'Abreu, Valin, Emerigon, Vattel, Azuni, and others maintain the sounder doctrine, that when the flying enemy has entered neutral territory,

(c) Grotius, b. 2, c. 2, sec. 13, n. 4; Vattel, b. 3, c. 7, sec. 119, 123, 127; Sir William Scott, 3 0. Rob. 3E3.

(d) Grotius, b. 3, c. 7, sec. 2, 3; Vattel, b. 3, c. 7, sec. 126; Manning's Commentaries, 182-186. Within a few years after the expulsion of the Tarquins, the Romans, under the auspices of the consul Spurius Cassius, concluded a league with the thirty cities or states of Latium; and one article was, that neither party should give to each other's enemies a passage through their lands. Dionysius, b. 6, sec. 95; Niebuhr's History of Rome, ii. 28.

(a) Q. J. Pub. b. 1, c. 8. (b) Maritime Law, ii. 223, ed. N. Y.

1Ante, 117, n. 1; Historians, Int. Law, 153, 159.

(x) The assent of the neutral State now appears to be necessary for the passage of belligerent troops or vessels over its territory. See Cobbett's Int. Law Cases (2d ed.), 237. The approved opinion is that neutrality requires a refusal when permission is asked by one belligerent for its troops to pass over a neutral's territory, and that the privilege should be equally granted to both belligerents or to neither. See 21 Revue de Droit Int., 117,

130, 139. If a belligerent, when attacked on neutral territory, elects to defend himself, the neutral is no longer responsible for violation of territory. The General Armstrong, 2 Ortolon, Dip. de la Mer, 300; Cobbett's Int. Law Cases (2d ed.), 239. A rule as to land seizures laid down by a belligerent cannot change neutral territory into high seas or make it subject to maritime law. Field v. United States, 27 Ct. Cl. 224.

he is placed immediately under the protection of the neutral power. The same broad principle that would tolerate a forcible entrance upon neutral ground or waters, in pursuit of the foe, would lead the pursuer into the heart of a commercial port. There is no exception to the rule that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. (c). The neutral border must not be used as a shelter for making preparations to renew the attack; and though the neutral is not obliged to refuse a passage and safety to the pursuing party, he ought to cause him to depart as soon as possible, and not permit him to lie by and watch his opportunity for further contest. This would be making the neutral country directly auxiliary to the war, and to the comfort and support of one party. In the case of the Anna, (d) Sir William Scott was inclined to agree with Bynkershoek to this extent, that if a vessel refused to submit to visitation and search, and fled within neutral territory, to places which were uninhabited, like the little mud islands before the {121} mouth of the Mississippi, and the cruiser, without injury or annoyance to any person, should quietly take possession of his prey, he would not stretch the point so far, on that account only, as to hold the capture illegal. But in this, as well as in every other case of the like kind, there is, in stricto jure, a violation of neutral jurisdiction, and the neutral power would have a right to insist on a restoration of the property. It was observed by the same high authority, in another case, depending on a claim of territory, (a) "that when the fact is established, it overrules every other consideration. The capture is done away; the property must be restored, notwithstanding it may actually belong to the enemy." A neutral has no right to inquire into the validity of a capture, except in cases in which the rights of neutral jurisdiction were violated; and, in such cases, the neutral power will restore

(c) Vattel, b. 3, c. 7, sec. 133; 1 Emerigon, Traité des Ass. 449; Azuni, ii. 223. It was observed by the American Secretary of State (Mr. Webster), in the diplomatic correspondence between him and the British minister (Lord Ashburton), relative to the case of the steamboat Caroline, on the Canadian border, and seemingly admitted by Lord Ashburton, that, to justify a hostile entrance upon neutral territory, there must exist a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.

(d) 5 C. Rob. 373, 385, d.

(a) The Vrow Anna Catharina, 5 C. Rob. 15.

the property, if found in the hands of the offender, and within its jurisdiction, regardless of any sentence of condemnation by a court of a belligerent captor. (b) It belongs solely to the neutral government to raise the objection to a capture and title, founded on the violation of neutral rights. The adverse belligerent has no right to complain when the prize is duly libelled before a competent court. (c) If any complaint is to be made on the part of the captured, it must be by his government to the neutral government, for a fraudulent, or unworthy, or unnecessary submission to a violation of its territory, and such submission will naturally provoke retaliation.l In the case of prizes brought within a neutral port, the neutral sovereign exercises jurisdiction so far as to restore the property of its {122} own subjects, illegally captured; and this is done, says Valin, (a) by way of compensation for the asylum granted to the captor and his prize. It has been held, in this country, that foreign ships, offending against our laws, within our jurisdiction, may be pursued and seized upon the ocean, and rightfully brought into our ports for adjudication. (b)2

(b) The Arrogante Barcelones, 7 Wheaton, 496; The Austrian Ordinance of Neutrality, August 7, 1808, art. 18; La Amistad de Rues, 5 Wheaton, 390. (c) Case of the Etrusco, 3 C. Rob. 162, note; [ante, 117, n. 1.]

(a) Comm. ii. 274.

(b) The Marianna Flora, 11 Wheaton, 42.

1Ante, 117, n. 1; Historicus, Int. Law, 159.

2 In June, 1857, the Cagliari, a Sardinian mail steamer, plying between Genoa and Tunis, was seized by armed men and directed to a small island where were confined some Neapolitan prisoners. These were released and taken on board, and the vessel was directed to the coast of Naples. There the armed men and the released prisoners landed, with the intent to promote an insurrection, and abandoned the vessel. The master at once set sail for Naples under the Sardinian flag, but was captured by a Neapolitan cruiser on the high seas. The prize court at Naples condemned the vessel, and the government held the master and crew, including two Englishmen, as prisoners of

war. Dr. Twiss and Dr. Phillimore both gave opinions that the seizure, as it was not belligerent, and as the vessel was not under the suspicion of a piratical condition, was illegal, and that the privilege of the flag was the privilege of the state. June 8, 1858, the Cagliari and crew were given up to the British government, upon their earnest remonstrances, and by them restored to Sardinia. The Neapolitan appellate court afterward pronounced the seizure rightful, on the ground that the vessel had been engaged in mixed acts of war and piracy, with the fault of the master and crew. Ann. Reg. 1858, pp. 63, 181; Wheat. Dana's note 240; Wheat. Lawrence's note 84; Dr. Abdy (Kent, 331, 332) thinks this qualifies the case of the Marianna Flora.

The government of the United States was warranted by the law and practice of nations, in the declarations made in 1793, of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent powers, in their intercourse with this country. (c) These rules were, that the original arming or equipping of vessels in our ports, by any of the powers at war, for military service, was unlawful; and no such vessel was entitled to an asylum in our ports. The equipment by them of government vessels of war, in matters which, if done to other vessels, would be applicable equally to commerce or war, was lawful. The equipment by them of vessels fitted for merchandise and war, and applicable to either, was lawful; but if it were of a nature solely applicable to war, it was unlawful. And if the armed vessel of one nation should depart from our jurisdiction, no armed vessel, being within the same, and belonging to an adverse belligerent power, should depart until twenty-four hours after the former, without being deemed to have violated the law of nations. (d) Congress have repeatedly, by statute, made suitable provision for the support and due observance of similar rules of neutrality, and given sanction to the principle of them, as being {123} founded in the universal law of nations. (x) It

(c) Vattel, b. 3, sec. 104; Wolfius, sec. 1174; Austrian Ordinance of Neutrality, August 7, 1803; Cours de Droit Public, par M. Pinheiro-Ferreira, ii. 44-47.

(d) Instructions to the Collectors of the Customs, August 4, 1793. Mr. Jefferson's Letters to M. Genet, of 5tb and 17th June, 1793; his Letter to Mr. Morris, of 16th August, 1793; Mr. Pickering's Letter to Mr. Pinckney, January 16, 1797; his Letter to M. Adet, January 20, 1796. [Post, 124, n. 1.]

(x) The present neutrality laws are now embraced in U. S. Rev. Stat. §§ 5281-5291. Sect. 5283, prohibiting the fitting out and arming of vessels with intent to be employed against a State or people with which this country is at peace, presupposes, it seems, two or more foreign belligerent powers, and not factions unrecognized by this government. The Conserva, 38 Fed. Rep. 431; The Itata, 56 id. 505; 49 id. 646; but see 13 A. G. Op. 179; The Salvador, L. R. 3 C. P. 218. A cargo, which is contraband of war, may be landed on the territory of one belligerent

at a point not blockaded. The Florida, 4 Ben. 452. Sects. 5283, 5286 do not apply to arms and munitions of war purchased here and carried to insurgents in a foreign country but not forming a part of the vessel's furnishings. The Itata, supra; The Carondelet, 37 Fed. Rep. 799; United States v. Trumbull, 48 Fed. Rep. 99; see United States v. Rand, 17 id. 142; United States v. The Resolute, 40 id. 543. Or to a vessel merely employed to transport them to a vessel which is so fitting out. United States v. The Robert and Minnie, 47 Fed. Rep. 84; United States v. Skinner, 2 Wheeler

is declared to be a misdemeanor for any citizen of the United States, within the territory or jurisdiction thereof, to accept and exercise a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, colony, district, or people, with whom the United States are at peace; or for any person, except a subject or citizen of any foreign prince, state, colony, district, or people, transiently within the United States, on board of any foreign armed vessel, within the territory or jurisdiction of the United States to enlist or enter himself, or hire or retain another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or mariner, or seaman; or to fit out and arm, or to increase or augment the force of any armed vessel, with intent that such vessel be employed in the service of any foreign power at war with another power with whom we are at peace; or to begin, or set on foot, or provide, or prepare the means for any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people with whom we are at peace; or to hire or enlist

Cr. Cas. 232. Or to money contributed to aid a foreign insurrection. Bailey v. O'Mahoney, 33 N. Y. Supr. Ct. 239.

The intent is material, and is alone sufficient to constitute the statutory offence, the actual arming of the vessel here not being necessary. The City of Mexico, 28 Fed. Rep. 148; The Conserva, 38 id. 431; United States v. 214 Boxes of Arms, 20 id. 50. The plan and intent must be formed here and not after the vessel reaches a foreign port. The City of Mexico, 24 Fed. Rep. 33; see 25 id. 924; 32 id. 105. Sect. 5286 does not require that the expedition should have actually set out, or any particular number of men, the crime being completed by the organization only. United States v. Ybanez, 53 Fed. Rep. 536. The organisation is illegal, though formed and despatched in separate parts. United States v. Hogan, 18 Fed. Rep. 529; see United States v. 214 Boxes, 20 id. 50. As to in-

formers under these statutes, see The City of Mexico, 32 Fed. Rep. 105; United States v. The Resolute, 40 id. 543; The Chapman, 4 Sawyer, 501.

Military expeditions or enterprises originating within the United States, and to be carried on from this country, are clearly prohibited by the Rev. Stats. § 5286. But the sending of a ship from a foreign country to the United States, to take on board arms and ammunition purchased here, and carry them to the foreign state, is not the preparing or setting on foot of such an expedition or enterprise within the meaning of the statute. United States v. Trumbull, 48 Fed. Rep. 99; The Itata, 49 id. 646; The City of Mexico, 24 id. 33; Hendricks v. Gonzalez, 67 id. 351. See Glenn's Int. Law ch. 21, p. 286.

A neutral government is not bound to prevent neutral ships from supplying materials to a belligerent. The Madagascar Expedition, 29 Am. L. Rev. 539.

troops or seamen for foreign military or naval service; or to be concerned in fitting out any vessel to cruise or commit hostilities in foreign service against a nation at peace with us; and the vessel, in this latter case, is made subject to forfeiture. The President of the United States is also authorized to employ force to compel any foreign vessel to depart, which, by the law of nations, or by treaty, ought not to remain within the United States, and to employ the public force generally in enforcing the observance of the duties of neutrality prescribed by law. (a)1 In

(a) Acts of Congress of 5th June, 1794, and 20th April, 1818, c. 83. By an act of Congress of March 10, 1838, c. 31, the provisions of the act of 1818 were enlarged and applied to any military expedition or enterprise against the territory of any foreign prince or state, or of any colony, district, or people, conterminous with the United States, and with whom they are at peace. Great Britain, by act of Parliament of 59 Geo. III., called the Foreign Enlistment Act, in like manner prohibited enlistments and equipments within the king's dominions, for warlike purposes in foreign states.

1 United States v. Kazinski, 2 Sprague, 7; 18 Law Rep. 254; 7 Op. Att.-Gen. 367; ante, 117, n. 1. The act of 1838, mentioned in note (a), expired by limitation at the end of two years.

The result of the controversy between the United States and England as to rebel privateers built and fitted out in English ports, has been to establish principles of dealing, at least between the two countries in question, which England had previously insisted did not belong to international law, but depended on municipal regulations, like the act referred to in the text. The principles are embodied in the following rules which were agreed to be taken as applicable to the case before the board of arbitration on the Alabama claims; but the protestation of England as to the principles in force at the time the claims arose should be noticed.

"A neutral government is bound —

"First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the

departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

"Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

"Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.

"Her Britannic Majesty has commanded her High Commissioners and Plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I. arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the

case of the Santissima Trinidad, (b) it was decided, that captures made by a vessel so illegally fitted out, whether a public or private armed ship, were torts, and that the original owner was entitled to restitution, if the property was brought within our jurisdiction; but that an illegal outfit did not affect a capture made after the cruise, to which the outfit had been applied, had terminated. The offence was deposited with the voyage, and the delictum ended with the termination of the cruise. (c)

Though a belligerent vessel may not enter within neutral jurisdiction for hostile purposes, she may, consistently with a state of neutrality, until prohibited by the neutral power, bring her prize into a neutral port, and sell it. (d) The neutral power is, however, at liberty {124} to refuse this privilege, provided the refusal be made, as the privilege ought to be granted, to both parties, or to neither. The United States, while a neutral power, frequently asserted the right to prohibit, at discretion, the sale within their ports of prizes brought in by the belligerents; and the sale of French prizes was allowed as an indulgence merely, until it interfered with the treaty of England of 1794, in respect to prizes made by privateers. (a) In the

(b) 7 Wheaton, 283.

(c) The seamen of a neutral nation may serve on board of a commercial vessel of a belligerent power, or be employed in a contraband trade on board of a neutral vessel, without being liable to punishment personally, by the municipal laws of his own country, or by the law of nations. Opinions of the Attorneys-General of the United States, i. 35.

(d) Bynk. b. 1, c. 15; Vattel, b. 3, c. 7, sec. 132; Martens, b. 8, c. 6, sec. 6; Hopner v. Appleby, 5 Mason, 77.

(a) Instructions to the American Ministers to France, July 15, 1797. Mr. Pick-

future, agrees that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules.

"And the High Contracting Parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."

For discussions of the question, see Wheat. Dana's note 215; Bemis on American Neutrality, Boston: Little,

Brown, & Co., 1866; Mountague Bernard on Neutrality of Great Britain during the American Civil War, London: Longmans, 1870, Historicus, Int. Law, 151; [Hall, Int. Law, pt. 4, c. 3; 6 Revue de Droit International, 453 and passim.] See also the great case under the British act, The Alexandra, Attorney-General v. Sillem, London: Eyre & Spottiswoode, 1863, and letter of Earl Russell to the Lords of the Treasury, ib. vol. 2, app. i.; S. C. 2 Hurlst. & C. 431; and a very important case under the American act, The Meteor, Boston: Little, Brown, & Co., 1869, stated briefly, 3 Am. Law Rev. 234; 1 id. 401.

opinion of some jurists, it is more consistent with a state of neutrality and the dictates of true policy to refuse this favor; for it must be very convenient to permit the privateers of contending nations to assemble, together with their prizes, in a neutral port. The edict of the States General of 1656 forbade foreign cruisers to sell their prizes in their neutral ports, or cause them to be unladen; and the French Ordinance of the Marine of 1681 contained the same prohibition, and that such vessels should not continue in port longer than twenty-four hours, unless detained by stress of weather. (b) The admission into neutral ports of the public ships of the belligerent parties, without prizes, and under due regulations, is considered to be a favor, required on the principle of hostility among friendly powers, and it has been uniformly conceded on the part of the United States. (c)1

3. Enemy's Property in Neutral Vessels. — But neutral ships do not afford protection to enemy's property, and it may be seized if found on board of a neutral vessel, beyond the limits of the neutral jurisdiction. This is a clear and well-settled principle of the law of nations. (d) 2 It was formerly a question whether

ering's Letters to M. Adet, May 24, and November 15, 1796. His Letter to Mr. Pinckney, January 16, 1797. It is deemed proper and safe for a neutral power to permit a prize, brought into port in distress, to be repaired, for the purpose of further navigation. Opinions of the Attorneys-General, i. 603.

(b) Valin, Comm. ii. 272.

(c) Mr. Jefferson's Letter to Mr. Hammond, September 9, 1793; Instructions to the American Commissioners to France, July 15, 1797; Cours de Droit Public, par M. Pinheiro-Ferreira, ii. 47. Such public vessels are exempt from the jurisdiction of the local authorities, but this exemption does not extend to private vessels. Vide infra, 156, note.

(d) Grotius, 1. 3, c. 6, sec. 6; Heinec. de Nav. ob Vect. c. 2, sec. 9; Bynk. Q. J. Pub. c. 14; Loccenius, de Jure Mar. et Nav. b. 2, c. 4, sec. 2; Molloy, de Jure Maritimo, b. 1, c. 1, sec. 18; Lampredi, du Commerce des Neutres, sec. 10, 11; Vattel, b. 3, c. 7, sec. 115; Answer, in 1753, to the Prussian Memorial; Consulat de la Mer, par Boucher, ii. c. 273, 276, sec. 1004.

1 Mr. Cushing's opinion in the case of The Sitka, 7 Op. Att.-Gen. 122, contains much learning on this subject, and confirms the text and note (c).

The twenty-four hours rule seems to have become part of international law. Pistoye & Duverdy, i. 108; M. Bernard, Neutrality of Great Britain, c. 11, p. 273; Moore's Rebellion Record, iii. 454; Haute-feuille, i. 366.

2Post, 128, n. 1; [Hall, Int. Law, pt. 4, c. 7 and 9. In the Institut de Droit International, held at La Haye in 1875, resolutions were adopted, though not without dissent, to the effect that — 1. The rule that enemy's property on board neutral vessels is inviolable unless contraband is a part of the positive law of nations. 2. That merchant ships and cargoes should not be captured unless they carry contra-

the neutral {125} ship, conveying enemy's property, was not liable to confiscation for that cause. (x) This was the old law of France, (a) in cases in which the master of the vessel knowingly took on board enemy's property; but Bynkershoek truly observes, that the master's knowledge is immaterial in this case, and that the rule in the Roman law, making the vessel liable for the fraudulent act of the master, was a mere fiscal regulation, and did not apply; and for the neutral to carry enemy's goods is not unlawful, like smuggling, and does not affect the neutral ship. (b) If there be nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage, and his freight for the carriage of the goods, though he has not carried them to the place of destination. They are said to be seized and condemned, not ex delicto, but only ex re. The capture of them by the enemy is a delivery to the person who, by the rights of war, was substituted for the owner. (c) Bynkershoek (d) thinks the master is not entitled to freight, because the goods were not carried to the port of destination, though he admits that the Dutch lawyers and the Consolato give freight. But the allowance of freight in that case has been the uniform practice of the English admiralty for near two centuries past, except when there was some circumstance of mala fides, or a departure from a strictly proper neutral conduct. (e) The freight is paid, not pro

(a) Ord. de la Marine, liv. 3, tit. 9, des Prises, art. 7.

(b) Bynk. Q. J. Pub. lib. 1, c. 14.

(c) Vattel, b. 3, c. 7, sec. 115. (d) B. 1, c. 14. (e) Jenkinson's Discourse in 1757, p. 13; The Atlas, 3 C. Rob. 304, note; Answer to the Prussian Memorial, 1753.

band or attempt to violate a duly declared blockade. 3. The above rules not to apply to any vessels taking part, or des-

tined to take part, in the hostilities. See 7 Revue de Droit International, 288. — B.]

(x) As between the parties to the Declaration of Paris, hostile goods in neutral ships go free. Cobbett's Int. Law Cases (2d ed.), 293, 298. A neutral vessel in the direct employ of a belligerent is, upon capture, as well as her enemy's cargo, liable to condemnation. The City of Mexico, 24 Fed. Rep. 33, 40; see 11 Law Mag. & Rev. (4th Series), 56; 50 Albany L. J. 389. A neutral vessel laden with neutral cargo is liable if captured

when actually and voluntarily under an enemy's protection. The Nancy, 27 Ct. Cl. 99. At the close of the eighteenth century an enemy's cargo captured on such a vessel was subject to confiscation, but the vessel itself would have been freed with freight money and compensation for loss directly caused by the seizure. The Joanna, 24 Ct. Cl. 198; The William, 23 id. 201.

rata, but in toto, because capture is considered as delivery, and the captor pays the whole freight, because he represents his enemy, by possessing himself of the enemy's goods {126} jure belli, and he interrupts the actual delivery to the consignee. (a)

The right to take enemy's property on board a neutral ship has been much contested by particular nations, whose interests it strongly opposed. This was the case with Prussia in the case of the Silesia loan, and with the Dutch in the war of 1756; and Mr. Jenkinson (afterwards Earl of Liverpool) published, in 1757, a discourse, very full and satisfactory, on the ground of authority and usage, in favor of the legality of the right, when no treaty intervened to control it. The rule has been steadily maintained by Great Britain. In France it has been fluctuating. The ordinance of the marine of 1681 asserted the ancient and severe rule, that the neutral ship, having on board enemy's property, was subject to confiscation. The same rule was enforced by the arrêts of 1692 and 1704, and relaxed by those of 1744 and 1778. (b) In 1780 the Empress of Russia proclaimed the principles of the Baltic code of neutrality, and declared she would maintain them by force of arms. One of the articles of that code was, that "all effects belonging to the subjects of belligerent powers should be looked upon as free on board of neutral ships, except only such goods as were contraband." The principal powers of Europe, as Sweden, Denmark, Prussia, Germany, Holland, Prance, Spain, Portugal, and Naples, and also these United States, acceded to the Russian principles of neutrality. (c) But the want of the consent of a power of such decided maritime superiority as that of Great Britain was an insuperable obstacle to the success of the Baltic conventional law of neutrality; and it was abandoned in 1793 by the naval powers of Europe, as not sanctioned by the existing law of nations, in every case in which the doctrines of that code {127} did not rest upon positive compact. During the whole course of the wars growing out of the French revolution, the government of the United States admitted the English rule to be valid, as the true and settled doctrine of

(a) The Copenhagen, 1 C. Rob. 289.

(b) Valin, Comm. 1. 3, tit. 9, des Prises, art. 7.

(c) New Ann. Reg. 1780, tit. Public Papers, 113-120; Martens, Summary, 327. ed. Phil.; Journals of Congress, vii. 68, 185.

international law; and that enemy's property was liable to seizure on board of neutral ships, and to be confiscated as prize of war. (a) It has, however, been very usual, in commercial treaties, to stipulate that free ships should make free goods, contraband of war always excepted; but such stipulations are to be considered as resting on conventional law merely, and as exceptions to the operation of the general rule, which every nation not a party to the stipulation is at perfect liberty to exact or surrender. The Ottoman Porte was the first power to abandon the ancient rule, and she stipulated, in her treaty with France, in 1604, that free ships should make free goods, and she afterwards consented to the same provision in her treaty with Holland, in 1612; and according to Azuni, (b) Turkey has, at all times, on international questions, given an example of moderation to the more civilized powers of Europe.

The effort made by the Baltic powers, in 1801, to recall and enforce the doctrines of the armed neutrality, in 1780, was met, and promptly overpowered, and the confederacy dissolved by the naval power of England. Russia gave up the point, and by her convention with England of the 17th June, 1801, expressly agreed that enemy's property was not to be protected on board of neutral ships. The rule has since been very generally acquiesced in; and it was expressly recognized in the Austrian ordinance of neutrality, published at Vienna the 7th of August, 1803. Its reasons {128} and authority have been ably vindicated by English statesmen and jurists, and particularly by Mr. Ward, in his treatise of the relative rights and duties of belligerent and neutral powers in maritime affairs, published in 1801, and which exhausted all the law and learning applicable to the question. (a)1

(a) Mr. Jefferson's Letter to M. Genet, July 24, 1793; Mr. Pickering's Letter to Mr. Pinckney, January 16, 1797; Letter of Messrs. Pinckney, Marshall, and Gerry, to the French government, January 27, 1798.

(b) Maritime Law of Europe, ii. 163. Flasson, in his Histoire de la Diplomatie Française, ii. 226, says, that it was not the object of the Ottoman Porte, in the instance mentioned in the text, to abandon the ancient rule, and that it was not a treaty, but a concession to France of privileges and exemption, from pure liberality.

(a) Mr. Manning, in his Commentaries on the Law of Nations, 203-244, has discussed the question, whether "free ships make free goods," quite at large, and with

1 On the breaking out of the war with the English principle that enemy's goods Russia in 1854, as the combined effect of on neutral vessels are good prize, and the

4. Neutral Property in an Enemy's Vessel. — It is also a principle of the law of nations relative to neutral rights that the effects of neutrals, found on board of enemy's vessels, shall be free; and it is a right as fully and firmly settled as the other, though, like that, it is often changed by positive agreement. (b) The principle is to be met with in the Consolato del Mare, and the property of the neutral is to be restored without any compensation for detention, and the other necessary inconveniences incident to the capture. The former ordinances of France, of 1543, 1585, and 1681, declared such goods to be lawful prize; and

great strength of reasoning. He vindicates the belligerent right against the doctrine of the Baltic powers, upon solid principles, and upon the authority of the Consolato del Mare, and of the most eminent European jurists who have written on the law of nations within the last two centuries. The principal authorities have been already referred to, at pages 124, 125, n. [et seq.]. Mr. Manning also examines the question, on the authority of the customary and conventional law of nations, by a review of a succession of treaties between European powers, from the year 1351 to the present times. The result is, that there is nothing like system or consistency of principle in the conventional law of Europe. The belligerent rule has been alternately adopted and rejected, and qualified with infinite vicissitude, and so as to leave the rule, as a general and settled principle of international law, when not disturbed by positive stipulations, in full force. Comm. 244-280.

(b) Grotius, b. 3, c. 6 and 16; Bynk. c. 13; Vattel, b. 3, c. 7, sec. 116; Answer to the Prussian Memorial, 1753; Mr. Jefferson's Letter to M. Genet, July 24, 1793; Mr. Pickering's Letter to Mr. Pinckney, January 10, 1797.

French doctrine that neutral goods on enemy's vessels are so, would have been to almost put an end to neutral commerce, the English and French governments declared that although they could not forego the right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's despatches, or from breaking effective blockades, they would "waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war." Neither was it intended "to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships." Spinks, Ec. & Ad. R. app. i. No. 1, and Order in Council of April 15, 1854, ib. ix. No. 8; Ann. Reg. 1854, p. 210; Wheat. Lawrence's note 228; Wheat. Dana's note 223; 1

Pistoye & Duverdy, 316 et seq. (tit vi. c. l); Edinburgh Review, July, 1854. By the declaration of principles of the Congress of Paris, April 16, 1856, "The neutral flag covers enemy's goods, with the exception of contraband of war. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag." Ann. Reg. 1856, p. 221; Pistoye & Duverdy, ii. 507; ib. i. 337 (tit. vi. c. 2); Wheat. Lawrence's note 192. See Treaty of United States with Russia, July 22, 1854, 10 St. at L. 215; and the treaties 11 St. at L. 607; 695; 12 id. 1003, 1012; 15 id. 473, 481, &c. These principles were applied as embodying the traditional policy of the United States during the war of the rebellion. Dip. Corr. 1861, pp. 44, 143, 191, 251.

Valin (c) justifies the ordinances, on the ground that the neutral, by putting his property on board of an enemy's vessel, favors the enemy's commerce, and agrees to abide the fate of the vessel. But it is fully and satisfactorily shown, by the whole current of modern authority, that the neutral has a perfect right to avail himself of the vessel of his friend, to transport his property; and Bynkershoek has devoted an entire chapter to the vindication of the iustice and equity of the right. (d)

The two distinct propositions, that enemy's goods found on board a neutral ship may lawfully be seized as prize of war, and that the goods of a neutral found on board of an {129} enemy's vessel were to be restored, have been explicitly incorporated into the jurisprudence of the United States, and declared by the Supreme Court (a) to be founded in the law of nations. The rule, as it was observed by the court, rested on the simple and intelligible principle, that war gave a full right to capture the goods of an enemy, but gave no right to capture the goods of a friend. The neutral flag constituted no protection to enemy's property, and the belligerent flag communicated no hostile character to neutral property. The character of the property depended upon the fact of ownership, and not upon the character of the vehicle in which it was found. After vindicating the simplicity and justice of the original rule of the law of nations against the speculations of modern theorists, and the ultima ratio of the armed neutrality, which attempted to effect by force a revolution in the law of nations, the court stated that nations have changed this simple and natural principle of public law, by conventions between themselves, in whole or in part, as they believed it to be for their interest; but the one proposition, that free ships should make free goods, did not necessarily imply the converse proposition, that enemy's ships should make enemy's goods. If a treaty establish the one proposition, and was silent as to the other, the other stood precisely as if there had been no stipulation, and upon the ancient rule. The stipulation that neutral bottoms should make neutral goods was a concession

(c) Comm. b. 3, tit. 9, des Prises, art. 7.

(d) Consulat de la Mer, par Boucher, ii. c. 276, sec. 1012, 1013; Heineccius, de Nav. ob. Vect. c. 2, sec. 9; Opera, ii. pt. 1, 349-355; Vattel, b. 3, c. 7, sec. 116; Bynk. c. 13.

(a) The Nereide, 9 Cranch, 388.

made by the belligerent to the neutral, and it gave to the neutral flag a capacity not given to it by the law of nations. On the other hand, the stipulation subjecting neutral property found in the vessel of an enemy to condemnation as prize of war was a concession made by the neutral to the belligerent, and took from the neutral a privilege he possessed under the law of nations; but neither reason nor practice {130} rendered the two concessions so indissoluble, that the one could not exist without the other. It rested entirely in the discretion of the contracting parties, whether either or both should be granted. The two propositions are distinct and independent of each other, and they have frequently been kept distinct by treaties, which stipulated for the one and not for the other. (a)

The government of the United States, in their negotiations with the republics in South America, have pressed very earnestly for the introduction and establishment of the principle of the Baltic code of 1780, that the friendly flag should cover the cargo; and this principle was incorporated into the treaty between the United States and Colombia, in 1825, and into the treaty of navigation and commerce between the United States and the Republic of Chili, in 1832. (b) The introduction of those new republics into the great community of civilized nations has justly been deemed a very favorable opportunity to inculcate and establish, under their sanction, more enlarged and liberal doctrines on the subject of national rights. It has been the desire of our government to obtain the recognition of the fundamental principles, consecrated by the treaty with Prussia, in 1785, relative to the perfect equality and reciprocity of commercial rights between nations; the abolition of private war upon the ocean; and the enlargement of the privileges of neu-

(a) The Cygnet, 2 Dods. 299, S. P.

(b) It was stipulated in those American treaties that, as between the parties, free ships should give freedom to goods, — that the flag should cover the cargo even of enemies, contraband goods excepted, and should also cover the persons, though enemies, unless they were officers or soldiers in actual service. But the provision was only to apply to those powers who recognized the principle; and neutral property found on board enemy's vessels were [was], under the above stipulation, liable to capture. If, however, the neutral flag did not protect enemy's property, then the goods of a neutral on board of an enemy's vessel were to be free. Treaty with Colombia, art. 12, 13; Treaty with Chili, art. 12, 13; Treaty with Venezuela, art. 15; Treaty with the Peru-Bolivian Confederation, art. 11, 12; Treaty with Ecuador, in 1839, art. 15.

tral commerce. The rule of public law, that the property of an enemy is liable to capture in the vessel of a friend, is now declared, on the part of our government, to have no foundation in natural right; and that the usage rests entirely on force. Though the high seas are a general jurisdiction, common to all, yet each nation has a special jurisdiction over its own vessels; and all the maritime nations of modern Europe have, at times, acceded to the principle, that the property of an enemy should be protected in the vessel of a friend. No neutral nation, it is said, is bound to submit to the usage; and the neutral may have {131} yielded at one time to the usage, without sacrificing the right to vindicate, by force, the security of the neutral flag at another. The neutral right to cover enemy's property is conceded to be subject to this qualification: that a belligerent nation may justly refuse to neutrals the benefit of this principle, unless it be conceded also by the enemy of the belligerent to the same neutral flag. (a)

But whatever may be the utility or reasonableness of the neutral claim, under such a qualification, I should apprehend the belligerent right to be no longer an open question; and that the authority and usage on which that right rests in Europe, and the long, explicit, and authoritative admission of it by this country, have concluded us from making it a subject of controversy; and that we are bound, in truth and justice, to submit to its regular exercise, in every case, and with every belligerent power who does not freely renounce it.

It has been a matter of discussion, whether the captor of the enemy's vessel be entitled to freight from the owner of the neutral goods found on board, and restored. Under certain circumstances, the captor has been considered to be entitled to freight, even though the goods were carried to the claimant's own country, and restored: and he clearly is entitled to freight, if he performs the voyage, and carries the goods to the port of original destination. In no other case is freight due to the captor; and the doctrine of pro rata freight is entirely rejected, because it would involve a prize court in a labyrinth of minute inquiries and considerations, in the endeavor to ascertain, in every case, the

(a) Letter of Mr. Adams, Secretary of State, to Mr. Anderson, 27th May, 1823; President's Message to the Senate, of 26th December, 1825, and to the House of Representatives, March 15, 1826.

balance of advantage or disadvantage which an interruption and loss of the original voyage, by capture, might have produced to the owner of the goods. (b)

{132} In the case of the Nereide, (a) the Supreme Court of the United States carried the principle of immunity of neutral property on board an enemy's vessel to the extent of allowing it to be laden on board an armed belligerent cruiser; and it was held that the goods did not lose their neutral character, not even in consequence of resistance made by the armed vessel, provided the neutral did not aid in such armament or resistance, notwithstanding he had chartered the whole vessel, and was on board at the time of the resistance. The act of arming was the act of the belligerent party, and the neutral goods did not contribute to the armament, further than the freight, which would be paid if the vessel was unarmed; and neither the goods nor the neutral owner were chargeable for the hostile acts of the belligerent vessel, if the neutral took no part in the resistance. A contemporary decision of an opposite character, on the same point, was made by the English High Court of Admiralty in the case of the Fanny; (b) and it was there observed that a neutral subject was at liberty to put his goods on board the merchant vessel of a belligerent; but if he placed them on board an armed belligerent ship, he showed an intention to resist visitation and search, by means of the association, and, so far as he does this, he was presumed to adhere to the enemy, and to withdraw himself from his protection of neutrality. If a neutral chooses to take the protection of a hostile force, instead of his own neutral character, he must take (it was observed) the inconvenience with the convenience, and his property would, upon just and sound principles, be liable to condemnation along with the belligerent vessel.

The question decided in the case of the Nereide is a very important one in prize law, and of infinite importance in its practical results; and it is to be regretted that the decisions of two courts of the highest character, on such a point,

{133} should have been in direct contradiction to each other. The same point afterwards arose, and was again argued,

(b) Bynk. Q. J. Pub. b. 1, c. 13; The Fortuna, 4 C. Rob. 278; The Diana, 5 C. Rob. 67; Vrow Anna Catharina, 6 C. Rob. 269.

(a) 9 Cranch, 388. (b) 1 Dods. 443.

and the former decision repeated in the case of the Atalanta. (a) It was observed, in this latter case, that the rule with us was correct in principle, and the most liberal and honorable to the jurisprudence of this country. The question may, therefore, be considered here as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal on this side of the Atlantic.

(a) 3 Wheaton, 409.

135