Portuguese having submitted to repeated insults from France, though she had not declared war. "Upon the breaking out of war," said Lord Stowell, "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."

In the case of Barker v. Blakes (9 East, 283), 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 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 had a right to pursue his general commerce with the enemy, but that he had 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 might 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. (Marshall, b. 1, c. 8, s. 5, quoting the "Consolato del

Mare," and Bynkershoeck.) "It is to be restored to the owners," says Vattel (b. 1, c. 7, s. 116), "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."

The law on this subject does not appear to have been always so distinctly understood; and it was an old saying, mentioned by Grotius, "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 rebutted, 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 has 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. In The Franklin (6 Rob. 120; The Zulema, 1 Acton, 14), which was a case of 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, as to Mr. J. Bell, a

merchant residing in a neutral country, was perfectly lawful, but which to Mr. William Bell, residing in a belligerent country, and therefore invested with the national character of a belligerent, was of course illegal, as all trade with the enemy is according to the laws of all nations. The tobacco was seized; the share of Mr. William Bell was condemned, but that of Mr. J. Bell, who retained his neutral character, was saved harmless. If, however, 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. (The Zulema, 1 Acton, 14.)

A capture made by citizens of the United States of property belonging to subjects of a country in amity with the United States, is unlawful wheresoever the capturing vessel may have been equipped or by whomsoever commissionated; and the property thus captured, if brought within the neutral limits of the United States, will be restored to the original owners. (The Bello Corrunes, 6 Wheaton, 152.) In the case of an illegal augmentation of the force of a belligerent cruizer, in the ports of the United States, the onus probandi is thrown on the cruizer to show, that the persons enlisted were subjects of the belligerent state, or belonging to its service, and then transiently within the United States. The exemption of foreign public ships coming into the waters of the United States, under an express or implied licence from the local jurisdiction, does not extend to their prize ships or goods captured in violation of the neutrality of the United States. (La Santissima Trinidad, 7 Wheaton, 283.)

Where a capture is made of the property of the subjects of a nation in amity with the United States, by a

vessel built, armed, equipped, and owned in the United States, such capture is illegal, and the property, if brought within the territorial jurisdiction of the United States, will be restored to the original owners. (La Concepcion, 6 Wheaton, 235.) Where a transfer of the capturing vessel in the ports of the belligerent state, under whose flag and commission she sails, is set up, in order to legalize the capture, the bona fides of the sale must be proved by the usual documentary evidence in a satisfactory manner. (Ib.) In The Fanny, however (10 Wheaton, 658), a case of capture by an armed vessel, fitted out in the ports of the United States in breach of neutrality, and where the claim of an alleged bonâ fide purchaser in a foreign port was rejected and restitution decreed to the original owner, it was held that the bona fide purchaser without notice is in such case entitled to be reimbursed the freight which he may have paid on the captured goods; and that the innocent neutral carrier of such goods, the same having been transhipped in a foreign port, is entitled to freight out of the goods. So also in The Commercen (2 Gallison, 264), it was decided as a general rule that the neutral carrier of enemies' property is entitled to his freight, though there are many exceptions to the rule, as where the property consists of contraband articles carried to the enemy. A neutral cargo on board an armed vessel of the enemy is not liable to condemnation as a prize of war. (The Atalanta, 3 Wheaton, 409.) Mr. Justice Story dissented from this principle in the case of The Nereide (9 Cranch, 388), where the majority of the court decided that the neutral came within this exemption, provided he had not armed the vessel, or aided in the resistance, although he had

chartered the vessel, and was on board at the time of the resistance.

The general inviolability of the neutral character extends, in some instances, to protect the property of belligerents, as well as of neutrals. "It is unlawful," says Vattel, Book 3, c. 7, s. 132), "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 into Bergen, in Norway, in 1666, to avoid the English, the English 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 its 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 the neutral fortress, is not lawful prize.

Martens, in his Summary of the Law of Nations (Book 8, c. 6, s. 6; and see Molloy, Book 1, c. 3, s. 7, & c. 4, s. 16), 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 refrain from all hostilities while they remain there, but, should one set sail, the other must not set sail in less than twenty-four hours afterwards."

In The Anna (5 Rob. 373), Lord Stowell said: "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