voyage, and that the mere sailing under the enemy's license subjects the property to confiscation. The acceptance of such hostile license, by any individual, of a belligerent country, is an act inconsistent with the duties of his allegiance; it is an attempt, on his part, to clothe himself with a neutral character by favor of the other belligerent, and thus to separate himself, without the sanction of his own government, from the common character of his country, and such act is, in itself, a sufficient ground of condemnation. (Wildman, Int. Law, vol. 2, p. 259; Phillimore, On Int. Law, vol. 3, § 69; Duer, On Insurance, vol. 1, p. 587; The Aurora, 8 Cranch. Rep., p. 441; The Hiram, 1 Wheaton. Rep., p. 440; The Ariadne, 2 Wheat. Rep., p. 143; Colquhoun v. N. Y. F. Insurance Co., 15 Johns. Rep., p. 357; Ogden v. Barker, 18 Johns. Rep., p. 87; Craig v. U. S. Ins. Co., 1 Peter. C. C. R., p. 410.)

§ 20. The unlawfulness of trade with the enemy extends not only to every place within his dominions, and subject to his government, but also to all places in his possession or military occupation, even though such occupation has not ripened into a conquest, or changed the national character of the inhabitants. In each case there is the same hazard to the state, and, if the hostile occupation is known when the communication is attempted, there is the same breach of duty on the part of the subject. The reasons of public policy, which forbid such intercourse, apply as fully in the one case as in the other. The same rule holds even in the case of a revolted territory, or colony of the enemy, which is known to have been for years in the hands of the insurgents. courts of justice always regard such revolted territory as belonging to the enemy, until, by some public act of their own government, it is expressly recognized as an independent and friendly power. Until such express recognition, courts must regard the revolted territory as a subsisting part of the parent state, with its former relations unaltered. (Phillips, On Insuarnce, vol. 1, p. 82; Duer, On Insurance, vol. 1, pp. 590, 591; The Manilla, 1 Edw. Ad. Rep., p. 3; The Pelican, 1 Edw. Ad. Rep., appen. D.; Johnson v. Greaves, 2 Fount. Rep., p. 344; Blackburne v. Thompson, 15 East. Rep., p. 81; Rose v. Himely, 4 Cranch. Rep., p. 272; Gelston v. Hoyt, 13 Johns. Rep., p. 587; Wildman, Int. Law, vol. 2,

p. 116; The Fama, 5 Rob. Rep., p. 106; The Boletta, 1 Edw. Rep., p. 171; Hagedorn v. Bell, 1 Maule and Sel. Rep., p. 450; Bromley v. Hesseltine, 1 Camp. Rep., p. 75; Bentzon v. Boyle, 9 Cranch. Rep., p, 191.)

§ 21. It may be stated, as a general rule, that any insurance, on either vessel or cargo, engaged in illegal trade with the enemy, is illegal, and whenever the goods or vessel are liable to condemnation, the policy of insurance will be declared void. Where the property insured is justly liable to belligerent capture, whether the delictum, that is the substantive course of condemnation, exists at the inception of the voyage, or occurs subsequently, but prior to the time the policy attaches, it is considered to be illegal, and is declared void. There are, however, on this question conflicting opinions and decisions, the examination of which does not come within the purpose and object of this work. (Duer, On Insurance, vol. 1, p. 748; Arnould, On Insurance, pt. 3, ch. 1, sec. 7; Bedarride, Droit Maritime, §§ 1095, et seq.)

CHAPTER XXII.

RIGHTS AND DUTIES OF NEUTRALS.

CONTENTS.

1. Neutrality in war-2. Qualified neutrality-23. Advantages and resulting duties of neutrality- 4. Hostilities not allowed within neutral jurisdiction 5. Passage of troops through neutral territory- 6. Pretended exception to inviolability of neutral territory-27. Opinions of European and American publicists-28. Case of the Caroline-9. Belligerent vessels in neutral ports-2 10. Right of asylum- 11. Presumptive right of entry-12. Armed cruisers in neutral waters-13. Belligerent ships and troops in neutral ports and territory- 14. Arming vessels and enlisting troops-15. Loans of money by neutrals- 16. Pursuit of enemy from neutral port- 17. Passage over neutral waters - 18. Municipal laws in favor of neutrality- 19. Laws of U. S.- 20. Of Great Britain-3 21. Protection of neutral inviolability- 22. Claim for restitution- 23. If captured property be in possession of a neutral-2 24. Power and jurisdiction of federal courts- 25. Purchasers in foreign ports-26. If condemned in captor's country- 27. Illegal equipment.

§1. Neutrals in a war are those who take no part in it, but remain the common friends of the belligerents, favoring the arms of neither to the detriment of the others. "The neutral," says Phillimore, "is justly and happily designated by the latin expression in bello medius. It is of the essence of his character that he so retain this central position, as to incline to neither belligerent. He has no jus bellicum himself, but he is entitled to the continuance of his ordinary

jus pacis, with, as will presently be seen, certain curtailments and modifications which flow from the altered state of the general relations of all countries in time of war." According to Bynkershoek, he has nothing to do with the justice o rinjustice of the war, and can show no favors to one party in preference to another. The error of Grotius, copied by Vattel, in this respect, has not been followed by subsequent writers. All independent sovereign states have a right to remain neutral in a war, unless otherwise bound by treaties of alliance previously, entered into. It is not necessary that they should make any proclamation or public declaration of neutrality; the legal presumption is, that their pacific status continues, unless they declare to the contrary. (Bello, Derecho Internacional, pt. 2, cap. 7, §1; Wheaton, Elem. Int. Law, pt. 4, ch. 3, §§ 1, 2, 3; Phillimore, On Int. Law, vol. 3, §§ 136, 179; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 17; Vattel, Droit des Gens, liv. 3, ch. 7, §§ 113–110; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 9; Kluber, Europ. Volkerrecht, § 284; Manning, Law of Nations, p. 166; Moser, Versuch, etc., B. 10, ch. 1, § 211; Ortolan, Diplomatie de la Mer, tome 2, ch. 4; Garden, De Diplomatie, liv. 7, §1; Heffter, Droit International, § 144; Hautefeuille, Des Nations Neutres, tit. 4, ch. 1; Hubner, De la Saisie des batiments Neu., t. 1, pt. 1, ch. 2; Galiani, De Doveri, pt. 1, cap. 1; Azuni, Droit Maritime, ch. 1, art. 3, §1; Massé, Droit Commercial, liv. 2, tit. 1, ch. 2; De Cussy, Droit Maritime, liv. 1, tit. 3, §9; Lampredi, Commerce des Neutres, pt. 1, § 4.)

§ 2. There is, however, a qualified neutrality which forms an exception to this definition; it arises out of antecedent engagements, by which the neutral state has bound itself to one of the parties to the war, to furnish a limited succor, or to extend certain privileges. The fulfilment of such an engagement, entered into prior to the commencement of hostilities, does not necessarily forfeit the neutral character of a state, nor render it the enemy of the other belligerent party, because it does not render the neutral the general associate. of the belligerent to whom the succor or privilege is due. For example, Switzerland has furnished troops to certain European powers, in virtue of treaty stipulations, without herself being involved in the wars in which her troops were

engaged. Denmark, in consequence of a previous treaty, furnished limited succours in ships and troops to Russia, in 1788, against Sweden. By the treaty of amity and commerce between the United States and France, in 1778, the latter secured to herself the special privilege of the admission for her privateers, with their prizes, into American ports, to the exclusion of her enemies; and the admission of her public ships of war, in case of urgent necessity, to refresh, victual, repair, etc., but not exclusively of other nations at war with her. The first of these privileges being exclusive, was complained of by Great Britain and Holland, and France was not satisfied with the interpretation of the latter, by which the public ships of her enemies were admitted into the American ports for the same purposes. To furnish succors, or auxilliaries, or to extend privileges to one belligerent, to the detriment of the other, is undoubtedly a violation of strict neutrality, and, as such, is a just cause of complaint, if not of war. The peculiarity of the position of Switzerland, hemmed in on all sides by states having a direct interest in maintaining her neutrality, has generally prevented complaints against her, for furnishing a limited number of troops to one or more of the parties to a war. If she had been a commercial or maritime state, says Massé, a different rule would undoubtedly have been applied to this singular state of things. She has recently passed regulations prohibiting her citizens from enlisting in foreign service. There can be no question, that her former conduct, in this respect, was a violation of her neutrality. So, also, are the minor acts of partiality mentioned in the preceding paragraph; but, as Phillimore justly remarks, it would be pedantically rigid to consider, as a violation of neutrality, the allowing prizes captured by one belligerent to be brought into the neutral port, especially in compliance with the provisions of a treaty made antecedently to the war. How far a neutrality, thus qualified and limited, may be tolerated by the belligerent against whom the partiality is shown, is a question of expediency, rather than of right, and is generally governed by political circumstances. (Vattel, Droit des Gens, liv. 3, ch. 7, §§ 101-105; Wheaton, Elem. Int. Law, pt. 4, ch. 3, §§ 4-6; Kent, Com. on Am. Law, vol. 1, p. 116; Phillimore, On