was engaged, or not. It was sufficient, that his armies were everywhere their enemies; and every assistance offered to them must, directly or indirectly, operate to their injury.

The court was, therefore, of opinion that the voyage in which the vessel was engaged was illicit, and inconsistent with the duties of neutrality, and that it was a very lenient administration of justice to confine the penalty to a mere denial of freight. (a)230

the war of

§ 508. It had been contended in argument in the Rule of above case, that the exportation of grain from Ireland 1756. being generally prohibited, a neutral could not lawfully engage in

(a) The Commercen, Wheaton's Rep. i. 382.

[230 Penalty for Carrying Contraband. — It would seem that neutral vessels carrying contraband were, in early times, treated as wrong-doers, and deemed subject to forfeiture. (Jonge Tobias, Rob. i. 330. Atalanta, Rob. vi. 440. Ringende Jacob, Rob. i. 90. Kent's Comm. i. 146. Bynkershoek, Quæst. Jur. Pub. cap. 12–14. Phillimore's Intern. Law, iii. 571.) Some relics of this practice remain. If the contraband cargo belongs to the owner of the vessel, the vessel is condemned. So, if the neutral vessel is bound by a treaty of her own country to abstain from the act in question, the vessel is condemned for the act, though the cargo be not the property of the owner of the vessel. In the absence of a treaty, on what principle can it be said that a neutral may carry contraband goods of another person without penalty on his vessel, but cannot carry his own? One act is as injurious to belligerents as the other. I hazard the conjecture that this rule arose out of a state of things where the knowledge of the carrier was or was thought to be important as determining the fate of his vessel, and he was held conclusively bound to know the character and destination of his own goods; and that the rule, once established, survived the reason which caused it. This consequence to the owner of the vessel and cargo was prohibited in the treaty between the United States and France, of 1800, art. 13, now expired. By the present practice of nations, if the neutral has done no more than carry goods for another which are in law contraband, the only penalty upon him is the loss of his freight, time, and expenses. If he makes use of fraudulent devices to mislead the belligerent, and defeat or impair the right of search, he is liable to condemnation, for unneutral acts in aid of the enemy. So, if he not only carries contraband goods, but engages in a contraband service. We have seen (Note 228, ante, on Carrying Hostile Persons or Papers), that, if a neutral lets his vessel to a belligerent government, it is immaterial what she is carrying, or whether she be in ballast, or what are the termini of her voyage; for she is in the enemy's service, and liable to be condemned as pro hâc vice enemy's property. But, if she has no relations with the enemy's government, and, as a private merchant-vessel, is carrying goods on private account, as merchandise, to the enemy's ports, to be put into the market there, or delivered into private hands, she is not, as the practice is now settled, liable to condemnation, whatever be the character of her cargo. It may be gunpowder, or provisions destined to a port hard pressed by siege. Her object is commercial; and the adapting of her cargo to the demands of its port of destination is allowed now to be a fair commercial enterprise. The probability, however great, that the gunpowder will at once or at last come into the hands of the enemy's government, or be otherwise used in war, and the chance that the provisions, whether they go into government hands or not, may enable the inhabitants the longer to support the

that trade during war, upon the principle of what has been called the "Rule of the War of 1756," in its application to the colonial and coasting trade of an enemy not generally open in time of

siege, -none of these considerations make the enterprise contraband. The reason for the rule is that the capital and industry of the world are deeply and permanently involved in making, raising, and transporting for sale or consumption all articles, whether usable in war or not and articles which all courts, treaties, and writers admit to be always contraband when destined to an enemy's port, are still also articles of utility and even necessity in peace; and in their production and transportation the capital and industry of the world are permanently involved. Gunpowder, for instance, smaller fire-arms, and even cannon, are necessary for peaceful purposes; and, if from these extreme instances, we pass through the scarcely distinguishable degrees of articles ancipitis usûs, it becomes apparent how strong and general is the motive for resisting restrictions upon this trade. The interests of peace and commerce, on the one hand, and those of war, on the other, have, in the conflict of their forces, rested at a practical line of settlement. The interests of peace have prevailed so far as to permit the carrier to transport contraband goods, subject to no other penalty than the loss of his commercial enterprise, -i.e., his freight and expenses; while the interests of war have prevailed so far as to permit the belligerent to stop the contraband goods on their passage, and convert them to his own use. The advantage of this is, that the carrying-trade of the world may go on, subject to an ascertainable risk, which may be provided for by contract, and guarded against by insurance; and producers and merchants can continue their business and procure transportation without criminality, taking the risk of the capture and condemnation of noxious articles. At the same time, the belligerents have the further security of being able to condemn all the interests involved, whether vessel or cargo, if there have been fraudulent practices, or hostile service.

If the act of the neutral carrier amounts to a hostile service, his vessel is liable to condemnation; and his act is not to be retained within the category of contraband simply because it consisted in carrying contraband goods. The Commercen (Wheaton's Rep. i. 382) might have presented this question satisfactorily, but for an error in the court below. The vessel was neutral, and was carrying a cargo of wheat from Cork, to be delivered to the British fleet, lying in a neutral port in Spain. She was not let to the British Government for the purpose; and it does not appear at what stage that government became, or was to become, interested in the cargo, as owner. The shipper was probably a contractor for supplying the fleet. Exportation of wheat was prohibited at that time; and the shipper obtained special permission, giving bond for its due delivery to the fleet. The vessel was captured by an American privateer; and, in the prize court below, for some unexplained reason, the case was treated simply as one of enemy's goods in a neutral's vessel. The goods were condemned as enemy's property; and the vessel was restored, but without freight. The owner of the vessel appealed from the denial of freight; and it was upon that point only that the case came before the Supreme Court. That court had no difficulty in finding the cargo contraband, under the circumstances; and that alone required a confirmation of the decree. There seems to have been no attempt in the court below to procure a condemnation of the vessel for being engaged in a hostile service; and the record did not present that point to the Supreme Court. Had it been presented, there would seem little doubt that the service, under all its circumstances, might be considered as hostile, and the vessel as pro hâc vice in the employment of the enemy's government. The fact that the British fleet lay in a neutral port was immaterial. Indeed, it is a confusion

peace. The court deemed it unnecessary to consider the principles on which that rule is rested by the British prize courts, not regarding them as applicable to the case in judgment. But the legality of the rule itself has always been contested by the American government, and it appears in its origin to have been founded upon very different principles from those which have more recently been urged in its defence. During the war of 1756, the French government, finding the trade with their colonies almost entirely cut off by the maritime superiority of Great Britain, relaxed their monopoly of that trade, and allowed the Dutch, then neutral, to

of ideas to apply the doctrines of continuous voyages and neutral termini, to cases of service performed for an enemy.

(On the penalty for contraband and its reasons, see further Hautefeuille, Des Nat. Neutr. tom. iii. pp. 224-234. Ortolan, Règl. Intern. tom. ii. liv. iii. p. 187.)

There is a French règlement of Louis XVI. of 26th July, 1778, which condemns the vessel and cargo, if three-fourths of the cargo in value is contraband. But, as this is in derogation of the international law as now settled, it cannot be enforced against neutrals.

TAKING CONTRABAND GOODS OUT OF NEUTRAL VESSELS. It is for the interest of the neutral carrier, if he knows that the goods claimed by the visiting cruiser are contraband, to give them up, and be permitted to go on his way, rather than to be carried into the belligerent's port to await adjudication upon them. In the seventeenth article of the treaty of 1800 between the United States and France, which expired in 1808, there is a provision, that, if the vessel boarded shall have contraband goods, and shall be willing to surrender them to the cruiser, she shall be permitted to pursue her voyage, unless the cruiser is unable to take them on board, in which case the vessel shall accompany her to port. This stipulation is common in the treaties between the United States and the other American republics. Hautefeuille contends for this as a right of a neutral by international law; by which, however, he means that it should be the neutral's right, by justice and reason, in the author's opinion. No national act in diplomacy, or based on adjudication, and independent of treaty, has been produced or suggested by the distinguished author, in affirmance of such a right. It is to be observed, that, as the captor must still take the cargo into port, and submit it to adjudication, and as the neutral carrier cannot bind the owner of the supposed contraband cargo not to claim it in court, the captor is entitled, for his protection, to the usual evidence of the ship's papers, and whatever other evidence induced him to make the capture, as well as to the examination on oath of the master and supercargo of the vessel. It may not be possible or convenient to detach all these papers, and deliver them to the captor; and certainly the testimony of the persons on board cannot be taken at sea in the manner required by law. Such a provision may be applicable to a case where the owner of the goods, or a person capable of binding him, is on board, and assents to the arrangement, agreeing not to claim the goods in court; but not to a case where the owner is not bound. There may also be a doubt whether the ostensible owner or agent is really such; and so the captor may be misled. Indeed, a strong argument might be made from these considerations, that the article in the treaty can only be applied to a case where there is the capacity in the neutral vessel to insure the captor against a claim on the goods.]-D.

carry on the commerce between the mother-country and her colonies, under special licenses or passes, granted for this particular purpose, excluding, at the same time, all other neutrals from the same trade. Many Dutch vessels so employed were captured by the British cruisers, and, together with their cargoes, were condemned by the prize courts, upon the principle, that by such employment they were, in effect, incorporated into the French navigation, having adopted the commerce and character of the enemy, and identified themselves with his interests and purposes. They were, in the judgment of these courts, to be considered like transports in the enemy's service, and hence liable to capture and condemnation, upon the same principle with property condemned for carrying military persons or despatches. In these cases, the property was considered, pro hac vice, as enemy's property, as so completely identified with his interests as to acquire a hostile character. So, where a neutral is engaged in a trade, which is exclusively confined to the subjects of any country, in peace and in war, and is interdicted to all others, and cannot at any time be avowedly carried on in the name of a foreigner, such a trade is considered so entirely national, that it must follow the hostile situation of the country. (a) There is all the difference between this principle and the more modern doctrine which interdicts to neutrals, during war, all trade not open to them in time of peace, that there is between the granting by the enemy of special licenses to the subjects of the opposite belligerent, protecting their property from capture in a particular trade which the policy of the enemy induces him to tolerate, and a general exemption of such trade from capture. The former is clearly cause of confiscation, whilst the latter has never been deemed to have such an effect. The "Rule of the War of 1756" was originally founded upon the former principle: it was suffered to lie dormant during the war of the American Revolution; and when revived at the commencement of the war against France in 1793, was applied, with various relaxations and modifications, to the prohibition of all neutral traffic with the colonies and upon the coasts of the enemy. The principle of the rule was frequently vindicated by Sir W. Scott, in his masterly judgments in the High Court of Admiralty and in the

(a) The Princessa, Robinson's Adm. Rep. ii. 52. The Anna Catharina, Ibid. iv. 118. The Rendsborg, Ibid. 121. The Vrow Anna Catharina, Ibid. v. 150. Whea ton's Rep. ii. Appendix, 29.

writings of other British public jurists of great learning and ability. But the conclusiveness of their reasonings was ably contested by different American statesmen, and failed to procure the acquiescence of neutral powers in this prohibition of their trade with the enemy's colonies. The question continued a fruitful source of contention between Great Britain and those powers, until they became her allies or enemies at the close of the war; but its practical importance will probably be hereafter much diminished by the revolution which has since taken place in the colonial system of Europe. (b)231

(b) Wheaton's Rep. i. Appendix, Note III. See Madison's "Examination of the British Doctrine which subjects to Capture a Neutral Trade not Open in Time of Peace." [231 Continuous Voyages. — The examination into the continuous nature of voyages is, or may be necessary in reference alike to blockade, trade with enemies, unneutral service, and carrying contraband, and, indeed, to all cases where the destination of the vessel or cargo is material. The right of the belligerent is to know the facts. The policy of the neutral is to conceal them. If the destination is really to a hostile port, -if that is the plan or scheme of the voyage, it is, of course, immaterial what formal acts, intended to deceive, are interposed. If the plan of the voyage is, that the cargo be landed in a neutral port, and thence transshipped to its actual destination, it is to be expected that the neutral, whose object is to deceive, will be careful to go through all the forms which would be gone through with for a cargo actually destined to that neutral port. His object is to assimilate all the acts of a fictitious destination to those of a real destination. Such a cargo will be furnished with bills of lading and invoices, letters of instruction to the master or supercargo, and to the consignee in the neutral port, — all ostensibly contemplating an actual termination of the commercial enterprise there. That may be as well assumed, as it would be assumed that a spy would have not only no signs of his real character about him, but all the usual badges of an opposite character. The shipper may actually intend to have the goods landed in the neutral port, and stored there, and the employment of the vessel may cease there; and the mode, means, and time of transshipment to the real port of destination may be either planned by the shipper or left entirely to the discretion of his agent, and even a sale may be gone through with. All these facts are merely evidential, and consistent alike with an honest and a fraudulent intent. If a real hostile destination is proved aliunde, they make the fraudulent character of the scheme the more incontrovertible, while, if a hostile destination is disproved, they are natural and proper. It is the duty of the prize court to sift thoroughly all the facts, and detect the fraud if it exists; none of them having any conclusive and defined legal effect attached to them.

With reference to cargo landed at the neutral port, and a sale made there, Sir William Scott puts the test, whether the cargo, at that place, is " imported into the common stock of the country." (Thomyris, Edwards, 17. Maria, Rob. v. 365. William, Ibid. v. 385.) If, all the while, the consignee is merely an agent and bailee, whose office is to hold the goods for a greater or less time, and go through with more or less ceremonies over them, and ultimately to transship them to their real destination, with or without discretion in him or some one else as to the time and mode of transshipment, the hostile destination remains impressed on the goods; and they are all the while in itinere. If the form only of sale is gone through with, it is adding so much