PIUZK. 



709 



acter of the party is resumed, the moment he puts 

 himself upon his journey (in itinere) to return home. 

 Thus a belligerent subject, domiciled in a neutral 

 country, ceases to hold the character of a neutral as 

 soon he is on his return to his native country, and 

 becomes an enemy; and, e converse, a neutral 

 domiciled in an enemy's country ceases to be an 

 enemy upon his return to his own country. But 

 mere residence in a neutral country is not always 

 sufficient to protect the property of a party from 

 being deemed hostile ; for there may be a hostile 

 character impressed upon the property by the mere 

 nature of the trade in which the party is engaged. 

 Thus if a party reside in a neutral country, but has 

 an agent stationed in the enemy's country, who 

 carries on trade there on his account, upon the same 

 footing as a resident merchant and privileged trader, 

 he will, as to such trade, be deemed an enemy. 

 So if a neutral person is a partner in a house of 

 trade in the enemy's country, the partnership is 

 deemed hostile ; and his neutral residence will not 

 save his share in the concern from being liable to 

 confiscation as enemy's property. But here the 

 principle of reciprocity is not applied ; for if an 

 enemy be a partner in a house of trade in a neutral 

 country, his share in the concern is not protected 

 by the neutral character of the partnership; but 

 his character as enemy attaches to it. There are 

 many other cases in which traffic alone, indepen- 

 dent of domicil, stamps upon the party engaged in 

 it a hdstile character. Thus if a party be engaged 

 in the navigation of an enemy, or his ships sail 

 under the flag, and pass, and papers of an enemy, 

 the property so employed partakes of the hostile 

 character. There are certain species of trade 

 which are ordinarily confined to the subjects of a 

 nation ; and no foreigners are permitted to take 

 part in such trade. Thus, before the late South 

 American revolution, Spain prohibited all foreign 

 intercourse with her continental colonies. In such 

 cases of colonial monopoly, if, by special privilege 

 or license, a foreigner should, pro hac vice, be 

 allowed to carry on the trade ; or if, under colour 

 of the names of subjects, he should secretly embark 

 in it, his property so engaged would be deemed 

 hostile. Great Britain has attempted to maintain a 

 further principle, that neutrals shall not be allowed 

 to carry on any trade with colonies in time of war, 

 which is not allowed them in time of peace, con- 

 tending that if the ports are generally opened 

 during war, so as to ward oft' its pressure, it ought 

 to be deemed a privileged trade, and subject the 

 property to confiscation. America has resisted this 

 extension of the doctrine, asserting it to be new, 

 and not founded in the law of nations. So the 

 coasting trade of a country is so generally confined 

 to its own subjects that it is deemed a privileged 

 trade ; and the property of neutrals engaged in it 

 is treated as hostile. And the produce of an estate 

 situated in a hostile colony has been held to be 

 impressed with the character of the soil, although 

 the owner of the estate is resident in a neutral 

 country ; and, as to such produce, he is deemed an 

 enemy. A peculiar rule has been applied to cer- 

 tain European factories established in the Eastern 

 and Asiatic nations. These factories are deemed 

 to possess the national character of the countries to 

 which they belong, and not that of the countries 

 where they are situated. The same rule has been 

 applied to European establishments in Smyrna and 

 other Turkish provinces. But the property of 

 enemies is not always liable to capture, for the 

 government itself may limit the operations of war ; 

 and certain property is, by the law of nations, 

 exempted from capture. Tims vessels which are 



cartels, or are sailing under the license flag and 

 pass of the government, cannot be seized as enemy's 

 property ; for they are protected by the express or 

 implied authority of the government itself. And 

 it is not uncommon for the government, by special 

 instructions, to limit hostilities. Thus fishing ves- 

 sels are often exempted from capture, though 

 belonging to the enemy. 



IV. Under what circumstances neutral property 

 becomes subject to capture. 1. Belligerents having 

 a right to capture the property of their enemies on 

 the ocean, wherever it can be found, this right 

 would become utterly ineffectual unless they were 

 permitted to visit and search vessels on the ocean, 

 in order to ascertain whether they and their cargoes 

 were neutral or hostile. The right of search is 

 therefore generally admitted as an incident to the 

 right of capture. It has been, indeed, occasionally 

 resisted ; but it seems now firmly established as a 

 part of the law of nations, though it is often used 

 as an instrument of vexation to neutrals. Sweden, 

 in the war between France and England, from 

 1793 to 1802, attempted to establish an exception, 

 where her own ships, being neutral, were navigat- 

 ing under the convoy of her own public ships. 

 But England made captures of them for resistance 

 of the right of search ; and, though much irritation 

 existed at the time, the doctrine maintained by 

 England seems now generally admitted. Neutrals 

 taking the advantage of belligerent convoy will, it 

 is said, not be liable to confiscation, unless they 

 receive convoy orders and co-operate in resistance 

 of the right of search. But this doctrine seems 

 questionable ; and the judicial opinions in England 

 and America on this subject are irreconcilable. It 

 may, then, be laid down as a general rule, that 

 neutrals are bound to submit to the right of search ; 

 and, if they resist it, the property is liable to con- 

 fiscation. 2. And the right of search draws after 

 it a right to capture and send in the visited ship for 

 adjudication, whenever (though the ship and cargo 

 are under neutral papers) there are circumstances 

 of just suspicion as to their real character. The 

 neutral, under such circumstances, is bound to sub- 

 mit, and wait the regular result of the adjudication 

 of the proper prize tribunals. If, after the capture, 

 the neutral crew rise, and regain the neutral ship 

 from the possession of the captors, that alone is a 

 hostile act ; and however innocent in other respects 

 the ship and cargo may be, they are justly sub- 

 jected thereby to confiscation. 3. Another cause 

 of the just confiscation of neutral property is that 

 it is contraband of war. (See Contraband.} Goods 

 contraband of war are generally those which are 

 peculiarly and exclusively adapted to war, such as 

 military and naval equipments and stores, such as 

 guns, muskets, ammunition, and other articles 

 usually appropriated to war. So ships built for 

 war, and going to the enemy's country for sale, are 

 contraband. 'Neutrals, being bound to abstain 

 from taking any part in the war, are justly deemed 

 to identify themselves with the enemy by any inter- 

 position in it, or by any act against their duty ; 

 and if they commit any such acts, they are treated 

 as enemies. Many articles of commerce are of 

 promiscuous use, both in war and peace ; and, in 

 general, such articles are treated with indulgence, 

 and furnish no ground for capture. And, especially, 

 articles which constitute the produce and export of 

 a neutral nation are, at all times, though applicable 

 to war, treated with indulgence. But if such articles 

 are directly destined for the military or naval use 

 of the enemy, they will then be subject to confisca- 

 tion, although they are of promiscuous use. Thus 

 ship timber and naval stores, destined to the ports 



