war, it is the right of neutrals to carry on their accustomed trade, with an exception of the particular cases of a trade to blockaded places, or in contraband articles, and of their ships being liable to visitation and search (1). It has even been holden, that a British-born subject, domiciled in a neutral country, may legally trade from that country with a state at war with this country. (2) Every maritime war in Europe, since civilization gradually made the benefits of commerce appreciated, has produced discussions about the rights of those nations that remained at peace. In some instances their commerce certainly suffered; but where their rights were supported, the balance of advantages was greatly in their favour. The belligerents themselves found a mutual benefit in the exchange of their own produce, which could only be effected by neutral carriers. The intercourse with their colonies was enlarged by all, but principally by the weaker party; and though the varying opinions of the belligerents of the comparative advantages they derived from this intercourse, produced occasional interruptions, neutrals still maintained their rights, partly from the power they were able to throw into one scale or the other, but principally by the general advantages which were recognized by all. Though, however, power and advantage were the real foundation of this practice, the variety of interests, and the constant changes in them, produced the necessity of some unvarying tribunal; for this purpose, the opinions of a few wise men, for want of better means, were erected into a code of international law; and though the contradictions and fanciful extravagances of some of their opinions still leave great room for arbitrary interpretations, something was gained towards permanency and justice, by the admission of these authorities. (3) In the case of Barker v. Blakes (4), where a neutral ship, trading to a hostile port, had been detained for the purpose of search, and thereby lost her voyage, the underwriters being called upon to indemnify the neutral owner, attempted to set aside his claim, on the ground, that a neutral could not, in a British court, recover an indemnity for losses incurred in a trade (1) De Tastet v. Taylor, 4 Taunt. 238. Bell v. Reid 1 M. & S. 727. & Lord Esrkine's Speech, Sth of March, 1808, upon the Orders in Council, 10 Cobbett's Parl. Deb. 935. (2) Bell v. Reid, 1 M. & S. 727. ante. (3) Baring on the Orders in Council, 30, 1. (4) 9 East, 283. Property of which he had carried on with the enemies of Britain, in contravention of her interests and policy. But the right of the neutral to carry on such a trade, was vindicated and clearly established by Lord Ellenborough, who decided, not only that a neutral has a right to pursue his general commerce with the enemy, but that he has a right even to act as the carrier of the enemy's goods from his own to the enemy's country, without being subject to any confiscation of the ship, or of the neutral articles which may be on board, though certainly not without the risk of having his voyage interrupted by the seizure of hostile property. As on the one hand, a neutral has a free and just right to carry the property of enemies in his own vessels; so, on the other, his own property is inviolable, though it be found in the vessels of enemies (1). "It is to be restored to the owners," says Vattel (2), "though without any allowance for detention, decay, &c. The loss sustained by the neutrals, on this occasion, is an accident to which they expose themselves by embarking their property in an enemy's ship; and the captor, in exercising the rights of war, is not responsible for the accidents which may thence result, any more than if his cannon kills a neutral passenger who happens unfortunately to be on board an enemy's vessel (3)." The law, on this subject, does not appear to have been always so distinctly understood; and it was an old saying, mentioned by Grotius (4), "that goods found in our enemies' ships are reputed theirs." But the sense of the maxim amounts only to this, that it is commonly presumed in such case, that the whole belongs to one and the same master; a presumption, however, which, by evident proofs to the contrary, may be taken off; and so it was formerly adjudged in Holland, in a full assembly of the sovereign court, during the war with the Hanse Towns, in the year 1338, and from thence hath passed into a law. At present, the law is so completely settled, that if a neutral, in partnership with any other trader, engage in a trade which, to that partner, is illegal, yet the share of the neutral is not affected by the illegality of such partner's trade. This may be collected (1) See Marshal, b. 1. chap. 8. sect. 5., where he cites the Consolato del Mare, and Bynkershock. (2) Vatt. b. 3. ch. 7. from the case of the Franklin (1), which was a case of a partnership between Mr. John Bell, residing in America, a neutral country, and Mr. William Bell, residing in England, a belligerent country. The partnership appeared to have carried on a trade in tobacco with the enemy; a trade which, to Mr. John Bell, as a neutral, residing in a neutral country, was perfectly lawful, but which, to Mr. William Bell, residing in a belligerent country, and therefore invested, as we have seen (2), with the national character of a belligerent, was of course illegal, as all trade with the enemy has previously been shown to be, according to the laws of all nations. The tobacco was seized; the share of Mr. William Bell was condemned; but that of Mr. John Bell, who retained his neutral character, was saved harmless. But if the neutral voluntarily constitute himself agent of the belligerent, and make use of false papers, his share in the cargo will also become liable to condemnation. (3) Neutral Port. Nor does the general inviolability of the neutral character ex- Protection af tend solely to the protection of neutral property; in some in- forded by a stances it goes even further, and protects the property of belligerents themselves. Thus "it is unlawful," says Vattel (4), "to attack an enemy in a neutral country, or to commit in it any other act of hostility. The Dutch East India fleet having put to Bergen, in Norway, in 1666, to avoid the English, the British admiral had the temerity to attack them there, but the governor of Bergen fired on the assailants; and the court of Denmark complained, though perhaps too faintly, of an attempt so injurious to her rights and dignity. At present the whole space of the sea, within cannon shot of the coast, is considered as making a part of the territory; and, for that reason, a vessel taken under the cannon of a neutral fortress, is not a lawful prize (5)." Professor Martens, in his summary of the Law of Nations (6), enforces the same doctrine, and adds, in a note, that" when two vessels, the enemies of each other, meet in a neutral port, or when one pursues the other into such port, not only must they (1) 6 Rob. Rep. 127.; see also the case of Zulema, 1 Acton Rep. 14. (2) Ante, 32 to 54. (4) Vatt. b. 3. ch. 7. sect. 132. (3) The Zulema, 1 Acton Rep. and c. 1. s. 16. ante. refrain from all hostilities while they remain there, but, should one set sail, the other must not set sail in less than twenty-fou hours afterwards." Some important cases have been tried in the British Court of Admiralty in which the immunity of neutral domain has been strenuously and most ably enforced by the learned judge who presides there. Such were the cases of the Twee Gebroeders (1), and of the Anna (2), in the latter of which, Sir William Scott observed, "captors must understand, that they are not to station themselves in the mouth of a neutral river, for the purpose of exercising the rights of war from that river; much less in the very river itself. They are not to be standing on and off, overhauling vessels in their course down the river, and making the river as much subservient to the purposes of war, as if it had been a river of their own country." But the principal decision is the Twee Gebroeders (3). In that case, boats had been sent out from L'Espiegle, a British ship, which was itself lying in the Eastern Eems, within the protection of the neutral territory of Prussia, to capture the vessel called the Twee Gebroeders, with three others, which were all lying a little way out at sea. A. claim was given in against the captors by the Prussian consul, in consequence of the violation of his country's neutrality. In that case, Sir William Scott said, "It is said, that the ship was, in all respects, observant of the peace of the neutral territory; that nothing was done by her, which could affect the right of territory, or from which any inconvenience could arise to the country, within whose limits she was lying; in as much as the hostile force which she employed, was applied to the captured vessel lying out of the territory. But that is a doctrine that goes a great deal too far; I am of opinion, that no use of a neutral territory for the purposes of war, is to be permitted, I do not say remote uses, such as procuring provisions and refreshments, and acts of that nature, which the law of nations universally tolerates; but, that no proximate acts of war are, in any manner, to be allowed to originate on neutral grounds: and I cannot but think, that such an act as this, that a ship should station herself on neutral territory, and send out her boats on hostile enterprises, is an act of hostility much too immediate to be permitted. For supposing, that even a direct hostile use should be required to bring (1) 3 Rob. Rep. 336. (2) 5 Rob. Rep. 373. (3) 3 Rob. Rep. 162. it within the prohibition of the law of nations, nobody will say, that the very act of sending out boats to effect a capture, is not itself an act directly hostile, not complete, indeed, but inchoate and clothed with all the characters of hostility. If this could be defended, it might as well be said, that a ship, lying in a neutral station, might fire shot on a vessel lying out of the neutral territory; the injury, in that case, would not be consummated, nor received on neutral grounds, but no one would say, that such an act would not be an hostile act immediately commenced within the neutral territory. And what does it signify to the nature of the act, considered for the present purpose, whether I send out a cannon shot, which shall compel the submission of a vessel lying at two miles distance, or whether I send out a boat, armed and manned, to effect the very same thing at the same distance? It is, in both cases, the direct act of the vessel lying in neutral ground. The act of hostility actually begins, in the latter case, with the launching, and manning, and arming the boat, that is sent out on such an errand of force. "If it were necessary, therefore, to prove, that a direct and immediate act of hostility had been committed, I should be disposed to hold, that it was sufficiently made out by the facts of this case. But direct hostility appears not to be necessary; for whatever has an immediate connection with it is forbidden. You cannot, without leave, carry prisoners or booty into a neutral territory, there to be detained: because such an act is an immediate continuation of hostility. In the same manner an act of hostility is not to take its commencement on neutral ground. It is not sufficient to say, it is not completed there; you are not to take any measure there, that shall lead to immediate violence; you are not to avail yourself of a station in neutral territory, making, as it were, a vantage ground of the neutral country, a country which is to carry itself with perfect equality between both belligerents, giving neither the one or the other any advantage. Many instances have occurred, in which such an irregular use of a neutral country has been warmly resented; and some during the present war. The practice which has been tolerated in the northern states of Europe, of permitting French privatcers to make stations of their ports, and to sally out to capture British vessels in that neighbourhood, is of that number: and yet, even that practice, unfriendly and noxious as it is, is less than that complained of in the present instance: for here, the ship, with |