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insurance stated her as "carrying the Kniphausen flag," and in the broker's instructions she was called "a Kniphausen vessel." The captain swore that the 'Neptunus" (the vessel) belonged to Varrel, a port in the Kniphausen territory; that she was properly documented, according to the laws and regulations of that principality, and that she was captured on her voyage back from Oporto to London, and carried into Dunkirk.

The defence to a claim for loss against the insurance, was rested on the foreign decree of the French Court, condemning her as lawful prize. Lord Ellenborough held, that there was here no warranty of neutrality. "Here," he added, "the letter of instructions directing the insurance to be made, cannot amount to more than a representation that the 'Neptunus' was a Kniphausen vessel, and consequently neutral property. Therefore, if she was in reality documented and navigated according to the laws of the state to which she belonged, the sentence of a foreign court will not invalidate the policy. On the other hand, had there been a warranty of neutrality, the sentence might have been conclusive. In De Souza v. Ewer (Park, Ins., p. 361), Lord Kenyon held, that a sentence proceeding upon the violation of the particular ordinance of a belligerent state, falsified the warranty of neutrality."-(Von Tungeln v. Dubois, 2 Camp., p. 151.)

WHAT NEUTRALS MUST OBSERVE.

Although it is a part of the law of nations that neutrals are entitled to carry on trade with the

belligerents, yet they can only do so subject to the enemy's right of blockade, and to the exception of carrying contraband of war. Neutrals are therefore bound by the law of nations not to carry contraband of war into the enemy's country, and not to do any act inconsistent with a strict neutrality.-(Phillimore, vol. iii., p. 202.) They are entitled to carry on trade with the enemy under that exception; and in order to see that no contraband of war is carried by neutral ships, there is a right of search on the part of the belligerents. As Lord Erskine said, in his speech on the Orders in Council, 8th March 1808: "Upon the breaking out of war, it is the right of neutrals to carry on their accustomed trade, with an exception of the particular cases of a trade to blockading places, or in contraband articles, and of their ships being liable to visitation and search." If a neutral ship, therefore, carry contraband of war, or attempt to violate a blockade, she will forfeit her right of neutrality, and be liable to capture.-(Manning's Law of Nations, p. 281; Phillimore's International Law, vol. iii., p. 315; Vattel, lib. iii., ch. 7, § 117.)

If a neutral allow prizes, taken by one of the belligerents, to be carried into the neutral port, that will forfeit their right of neutrality, and convert the neutral into a party aiding the belligerent state.(Phillimore, 203.)

If a neutral attempt to rescue a seized ship, she will forfeit her right of neutrality, and be liable to be condemned. (Garrels v. Kensington, 8 Ter. Rep. 230.)

If a neutral ship violate a blockade, she will be

liable to seizure, and, of course, thereby forfeit her right of neutrality; but if a port be blockaded by sea, it will be no violation of the blockade for the neutral to carry on traffic with it by land.—(The Ocean, 3 Rob., p. 297.)

The exception of contraband of war necessarily leads to an inquiry of what shall be deemed contraband of war. This is most commonly regulated by treaty, but the articles known by munitions of war, and other articles of that nature, are included within it. (Chitty's Law of Nations, p. 120, et seq.; Manning's Law of Nations, p. 283; Phillimore, vol. iii., p. 315.)

The property or cargo belonging to neutrals, carried in an enemy's ship, is protected, although the ship may be condemned.-(Vattel, lib. iii., ch. 7, § 107; Manning's Law of Nations, p. 206.)

In cases where vessels are seized for carrying contraband of war, the rule formerly was to confiscate both ship and cargo. Now this has been relaxed so as to confine it to the confiscation of the property of the party who is wilfully and knowingly guilty of the act, leaving the other cargo and property of the ship free. (Manning's Law of Nations, p. 310; Chitty's Law of Nations, p. 148.)

It is a violation of neutrality for a neutral state to allow the enlistment of troops within its territory, for either of the belligerents.-(Phillimore, vol. iii., p. 209.)

By existing treaty, however, between one of the belligerents and the neutral state, a relaxation of this law of neutrality may take place. But the rule itself

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is so inviolate, that in several states there are positive enactments against foreign enlistment.-(Vide the speeches of Mr Canning, Mr Mackintosh, Lord Stowell, and Dr Phillimore, on the Foreign Enlistment Act of 1819; and also on Lord Althorpe's motion for the repeal of that Act in 1823.1

By treaty in 1835, there was a concession made by Great Britain to Spain, to relax the law against foreign enlistment, so as to permit the formation of a Spanish Legion. In the debate which followed in the House of Commons," the only question raised was as to the expediency of the relaxation; but no one attempted to question the propriety of the law of neutrality in the particular of foreign enlistment, or doubted the power of the Crown to relax it.

On the other hand, the neutral territory or rights of a neutral must not be infringed by the belligerent. The waters and territory of the neutral are inviolate. So, if a belligerent ship flee and take refuge in a neutral port, she cannot be followed into that port and seized by the enemy. If the enemy chase her into a neutral port or neutral waters or territory, and seize her, the neutral state is entitled to demand her restoration. (Per Lord Stowell in the "Vrow Anna Catherina," 5 Rob., p. 15.)

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1 The Foreign Enlistment Acts are-9 Geo. II., c. 30; 29 Geo. II., c.. 17; and 59 Geo. III., c. 69 (1819).

2 Hansard's Parl. Deb., 3d ser., vol. xxviii.

3 If the "Nashville" had captured the "Harvey Birch" in the British waters-in other words, in British territory-there would have been a violation of the rights of a neutral nation on the part of South America, such as would have entitled Great Britain to demand restoration of the

118 EFFECT OF FOREIGN DECREE OF CONDEMNATION.

FOREIGN DECREE NEGATIVING WARRANTY OF

NEUTRALITY.

It becomes necessary, where a policy bears a warranty of neutrality, to consider the effect of the decrees of foreign Courts, in the case of a vessel insured being captured and condemned as enemy's property. As already explained, the warranty usually expressed is a warranty of neutrality, or a warranty of American, or other nation; or it may appear, without any express warranty, if the vessel is described as of a particular nation, in which case this will imply a warranty that she is of that particular nation named. If, then, in these circumstances, the ship so insured is captured, and taken to the enemy's ports and condemned as prize, the question will arise, What effect shall be due to the foreign sentence or decree of condemnation in our courts, in negativing the warranty of neutrality in a policy of insurance? And this seems to be settled, that these foreign judgments are conclusive, but shall

vessel; but it appears that the "Harvey Birch" was captured by the Confederate States vessel on her way from Havre to America.

On the principles laid down by Lord Stowell and Dr Phillimore, it would appear that the "Trent," a British vessel, and therefore, with reference to the present war between the Americans themselves, a neutral ship, carrying a neutral flag, was entitled to all the rights of a neutral vessel subject only to the right of search for contraband of war. The "San Jacinto's" search of the "Trent" was so far lawful; but when her captain proceeded further to seize four passengers on board, and carry them off, he violated the right of the neutral flag and the law of nations; for, whether these parties were to be deemed belligerents in the true sense, or rebels, the neutral territory was invaded by their being taken from under the British flag.

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