Vessels chased into a Neutral Port. Consent of Neutral State necessary. Freedom of Neutral Commerce. hostile enterprises beyond the boundary. This is a direct hostile use of the neutral territory, and many instances have occurred in which such an irregular use of neutral territory has been warmly resented. Nor can the neutral, in true consistency with his neutrality, permit such a course of war.* Bynkershoek has maintained the anomalous principle, that vessels may be chased into a Neutral Territory, and there captured; but there is in reality no exception to the rule, that every voluntary entrance into a neutral territory, with hostile purposes, is absolutely unlawful. But this restoration takes place only on the application of the neutral government whose territory has been thus violated, the neutrality alone being the ground of the invalidity of the capture.† Though a belligerent vessel may not enter within neutral jurisdiction for hostile purposes, she may, consistently with a state of neutrality (unless prohibited by the neutral power), bring her prize into the neutral port and sell it there. A neutral has a right to pursue his accustomed commerce, and he may become the carrier of the enemy's goods, without being subject to 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. If we find an enemy's effects on board a neutral ship, we seize them by right of war; but we are naturally bound to pay the freight to the master of the vessel, who is not to suffer by such seizure.‡ * The Twee Gebroeders, 3 Rob. A. R. 162. †The Etrusco, 3 Rob. Adm. Rep. 1 Kent Com. p. 116; Vattel, book iii, chap. vii, sec. 115. See also, The Immanuel, 2 Rob. Adm. Rep. 198, and the Notes on the Declarations, in Appendix. The effects of neutrals found in an enemy's ship, are to be restored to the owners, against whom there is no right of confiscation, but without allowance for detainder, decay, &c. Neutrals voluntarily expose themselves to these accidents by embarking their goods in a hostile ship.* We have before mentioned that neutral ships do not afford protection to an enemy's property. 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. When an enemy's ship, containing free goods, is taken, if the captor carries the goods to the port of destination, he is entitled to the freight. He stands in the place of the owner of the ship, and performs (by completing) the specific contract between the owner and charterer. But he is not entitled, if he does not proceed and perform the original voyage. The specific contract is performed in the one case, and not in the other. But freight will be allowed to the captor, even though he does not carry the goods to the port of destination, if he carries them to his own country, and to the ports to which they would have been consigned, if not prevented by the regulations of the country of embarkation.‡ Under certain circumstances the Captor is considered entitled to Freight, even though the goods are carried to his own country, and restored. If the captor does anything to injure the property, or is guilty of misconduct, he may remain answerable for the effect of such misconduct or injury, in the way of set-off against him.§ * Vattel, book iii, chap. vii, sec. 116. The Diana, 5 Rob. Rep. 57. § The Fortuna. L This Rule No right of visitation and search, of capture, nor any other kind of belligerent right, can be exercised on board a public neutral vessel on the high seas. But private vessels form no part of neutral territory, and when within the limits of another state, are not exempt from local jurisdiction.* 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 rule has been steadily maintained in Great Britain, though in France and other countries it has been fluctuating. For the first time, England has voluntarily abandoned this right in the present war. If a neutral vessel, having enemy's goods on board, is taken, and there is nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage. The captor pays the whole freight, because he represents the enemy, by possessing himself of the enemy's goods by right of war; and although the whole freight has not been earned by the completion of the voyage, yet as the captor, by his act of seizure, has prevented its completion, his seizure operates to the same effect as an actual delivery of the goods to the consignee, and subjects him to the payment of the full freight.† In such case, however, the neutral master must have acted bonâ fide, and with strictly neutral conduct. This Rule is often Changed by Convention; and it is generally stipulated that "free ships shall make free goods." The converse, though also sometimes the subject of treaty, does not of necessity hold, enemy's ships do not make enemy's goods. Goods of neutrals, found on enemy's ships, are bound to be restored.‡ * Vide Vattel. † Kent's Com. 123; The Copenhagen, 1 Rob. Adm. Rep. 290. A neutral subject is at liberty to put his goods on board a merchant vessel, though belonging to a belligerent, subject nevertheless to the rights of the enemy who may capture the vessel; who has no right, according to modern practice, to condemn the neutral property. Neither will the goods of the neutral be subject to condemnation, although a rescue should be attempted by the crew of the captured vessel, for that is an event which the merchant could not have foreseen.* In America, Neutral Goods laden on an Armed† Belli- Neutral Goods on Armed Hosgerent Vessel are still protected, but in England it is different. tile Vessels. "If the neutral," says Sir Wm. Scott, "puts his goods on board a ship of force, which will be defended by force, he betrays an intention to resist visitation and search, and so far adheres to the belligerent, and withdraws himself from his protection of neutrality."+ and Purchase The Purchase of Ships from the enemy, is a liberty that The Sale has not been denied to neutral merchants, though by the of Vessels by regulation of France, it is entirely forbidden. The rule Neutrals. that this country has been content to apply is, that property so transferred, must be bona fide and absolutely transferred; there must be a sale divesting the enemy of all further interest in it; and that any thing tending to continue his interest, vitiates a contract of this description altogether.§ Russia is reported to have several vessels of war in different parts of the world; some of these vessels have been sold, and others are said to be in the process of sale. I shall cite what Sir Wm. Scott says, on a case nearly similar. “There have been many cases of enemy merchant vessels driven into ports out of which they could not escape, and * The Fancy, 1 Dod. Adm. Rep. 448. †The Nereide, 9 Cranch Rep. 398, The Fancy, 1 Dodson's Adm. Rep. 448. § The Sechs Gesawhistern, 4 Rob. Adm. Rep. 100. there sold, in which after much discussion, and some hesitation of opinion, the validity of the purchase has been sustained. But whether the purchase of a vessel, built for war, and employed as such, and rendered incapable of acting as a ship of war, by the arms of the other belligerent, and driven into a neutral port for shelter; whether the purchase of such a ship can be allowed, which shall enable the enemy so far to rescue himself from the disadvantage into which he has fallen, as to have the value restored to him by a neutral purchaser, is a question on which I shall wait for the authority of a superior court, hefore I admit the validity of such a transfer."* It has been said that the sale must be absolute and unconditional; so that a sale under a condition to re-convey at the end of the war, is invalid.† Similarly, where the seller is bound by his own government under a penalty not to sell, except upon a condition of restitution at the end of the war, and the purchaser undertook to exonerate the seller, the sale was held invalid.‡ Contraband of War. SECTION II. Contraband of War. The general freedom of neutral commerce is subject to certain restrictions with respect to neutral commerce. Among these is the trade with the enemy in certain articles, called Contraband of War. These are generally warlike stores, and articles which are directly auxiliary to warlike purposes. Writers on this subject have made distinctions between *The Minerva, 6 Rob. Adm. Rep. 399. 4 Rob. 100. |