vernment is perfectly justified in interposing to discourage the commencement of such a practice; for the inconvenience, to which the neutral territory will be exposed, is obvious. If the respect due to it is violated by one party, it will soon provoke a similar treatment from the other also, till, instead of neutral ground, it will soon become the theatre of war." Neutral Ship no But the immunity which neutral territory imparts, is not imImmunity for Enemy's Goods. parted by neutral ships; for an enemy's goods may be regularly captured on board a neutral ship, as in any other situation. Thus Vattel (1) lays it shortly down, that "if we find an enemy's effects on board a neutral ship, we seize them by the rights of war: but we are naturally bound to pay the freight to the master of the vessel, who is not to suffer by such seizure." But this freight is not, in all cases, to be measured by the charterparty (2). But particular states have sometimes relaxed the rigour of the rule, and granted, by treaty, a privilege of immunity to all goods found sailing in each other's ships, to whomsoever such goods may belong: the maxim in such cases being "Free ships, free goods." Such a privilege was granted by this country to Portugal in the treaty of 1654. (3) Illegal Com trals. These are the immunities which may be legally afforded by merce of Neu- neutrals to the subjects of one belligerent nation against the hostility of the other. We will now proceed to those instances where neutrals, so far from affording immunity to the commerce of strangers, forfeit, by misconduct, even that immunity which would otherwise belong to their own. This misconduct is of various kinds. We will first speak of the cases where neutrals are found engaged in contraband commerce. (4) Contraband What commerce shall be deemed contraband is a question which has given rise to various discussions, between the forces of belligerent states, and the merchants of neutral nations. "The catalogue of contrabands," said Sir William Scott, in the case of the Jonge Margaretha (5), "has varied very much, and sometimes in such a manner as to make it very difficult to assign the reason of the variations; owing to particular circumstances, the history of which has not accompanied the history of (1) Vatt. b. 3. ch. 7, s. 115. 6 Rob. Rep. 24. 41. 358. (4) See Acton's Rep. 25. the decisions." The King having, by his prerogative, the power to promulgate who are his enemies, is bound to watch over the safety of the state; he may, therefore, make new declarations of contraband, when articles come into use as implements of war which were before innocent; this is not the exercise of discretion over contraband; the law of nations prohibits contraband, and it is the usus bellici, which shifting from time to time, make the law shift with them (1). Thus much, at least, is acknowledged on all hands, as Vattel (2) has laid it down, that commodities particularly useful in war are contraband, such as arms, ammunition, horses, timber for ship-building, and every kind of naval stores. But torse and Cordilla hemp, found unfit for naval service, have been held not to be contraband. The greatest difficulty seems to have occurred in the instance of provisions: which have not been held universally contraband, though Vattel (3) admits that they become so on certain occasions, when there is an expectation of reducing the enemy by famine. In modern times, one of the principal criteria adopted by the courts for the decision of the question, whether any particular cargo of provisions be confiscable as contraband, is to examine whether those provisions be in a rude or in a manufactured state. For all articles, in such examinations, are treated with greater indulgence in their native condition, than when they are wrought up for the convenience of the enemy's immediate consumption. « Thus,” said Sir Wm. Scott, in the case of the Jonge Margaretha (4), “iron unwrought is treated with indulgence, though anchors and other instruments fabricated out of it, are directly contraband. Hemp is more favourably considered than cordage: and wheat is not considered so obnoxious a commodity, as any of the final preparations of it for human use." But these differences of opinion, with respect to the nature of provisions, appear to have arisen, rather from individual carelessness or misapprehension, than from any radical confusion in the law of nations on this subject. That they are, in strictness, confiscable as contraband, appears to be undeniable. In the case of the Haabet (5), Sir William Scott explained the strict law, and the relaxations of modern practice, in the following words: "The right of taking possession of cargoes of this de (1) Lord Erskine's Speech 8th March, 1808, on the Orders in Council, 10 Cobbett's Parl. Deb. (2) Vatt. b. 3. ch. 7. sect. 112. (3) Vatt. b. 3. ch. 7. sect. 112. (4) 1 Rob. Rep. 189. scription, commeatus, or provisions, going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent nations. The ancient practice of Europe, or at least of several maritime states of Europe, was to confiscate them entirely. A century has not elapsed since this claim has been asserted by some of them; a more mitigated practice has prevailed in later times, of holding such cargoes subject only to a right of pre-emption; that is, to a right of purchase, upon a reasonable compensation to the individual whose property is thus diverted. I have never understood that, on the side of the belligerent, this claim goes beyond the case of cargoes avowedly bound to the enemy's ports, or suspected, on just grounds, to have a concealed destination of that kind; or that, on the side of the neutral, the same exact compensation is to be expected, which he might have demanded from the enemy in his own port. The enemy may be distressed by famine, and may be driven by his necessities to pay a famine price for the commodity, if it gets there: it does not follow that, acting upon my rights of war in intercepting such supplies, I am under the obligation of paying that price of distress." From the foregoing opinions of Sir Wm. Scott, it may be collected that all provisions going to an enemy's port are, in strictness, confiscable as contraband; but that, in the case of provisions in their rude state, such as wheat, the strict right of confiscation is waived by the belligerent for the more lenient exercise of pre-emption; that, nevertheless, where those provisions are manufactured for use, as, if the wheat be baked into biscuit, the rigour of the original right revives, and the penalty of confiscation for contraband may be, in strictness, enforced. From a further position, laid down by the same learned judge in the case of the Jonge Margaretha (1), it will be found that of all circumstances in the interpretation of contraband, none will be deemed more materially to affect the cargo than the destination with which it is sailing. "The most important distinction," continued he, " is, whether the articles were intended for the ordinary use of life, or even for mercantile ships' use, or whether they were going with a highly probable destination to military use. Of the matter of fact on which the (1) 1 Rob. Rep. 189. Vid. et 6 Rob. Rep. 126. 4 Rob. Rep. 33. 5 Rob. Rep. 97. 93. 6 Rob. Rep. distinction is to be applied, the nature and quality of the port to which the articles were going, is not an irrational test; if the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate, or other ships of war, may be constructed in that port. On the contrary, if the great predominant character of a port be that of a port of naval military equipment, it shall be intended that the articles were going for military use, although merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consumption; for it being impossible to ascertain the final application of an article ancipitis usûs, it is not an injurious rule which deduces, both ways, the final use from the immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed if, at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful." There are some articles decidedly contraband in their nature, such as tar and pitch: which, however, when they are the produce of the claimant's own country, have been exempted from the penalty attaching upon contraband in general; as it has been deemed a harsh exercise of a belligerent right to prohibit a material branch of a neutral's natural trade. "But," said Sir William Scott, in the case of the Sarah Christina (1), " this relaxation is understood with a condition that the cargo may be brought in, not indeed for confiscation, but for pre-emption." 66 Except in cases of relaxation like these, where the practice of pre-emption has interposed, it usually happens that when the goods are once clearly shewn to be contraband, confiscation to the belligerent captor ensues, as a matter of course. "Barely to stop such goods," says Vattel (2), ❝ would in general prove an ineffectual mode, especially at sea, where there is no possibility of entirely cutting off all access to the enemy's harbours. Recourse is therefore had to the expedient of confiscating all contraband goods that we can seize on, in order that the fear of loss may operate as a check on the avidity of gain, and deter the merchants of neutral countries from supplying the enemy with such commodities. And, indeed, it is an object of such high import (1) Rob. Rep. 237. 1 Rob. (2) Vatt. b. 3. ch. 7. sect. 113. ance to a nation at war, to prevent, as far as possible, the enemy's being supplied with such articles as will add to his strength, and render him more dangerous, that necessity, and the care of her own welfare and safety, authorize her to take effectual methods for that purpose, and to declare that all commodities of that nature destined for the enemy, shall be considered as lawful prize. On this account, she notifies to the neutral states her declaration of war; whereupon the latter usually gives orders to their subjects to refrain from all contraband commerce with the nations at war, declaring, that if they are captured in carrying on such trade, the sovereign will not protect them. This rule is the point where the general custom of Europe seems at present fixed, after a number of variations. And, in order to avoid perpetual subjects of complaint and rupture, it has, in perfect conformity to sound principles, been agreed that the belligerent powers may seize and confiscate all contraband goods which neutral persons shall attempt to carry to their enemy, without any complaint from the sovereign of those merchants; as, on the other hand, the power at war does not impute to the neutral sovereigns these practices of their subjects." It is necessary for a neutral, if he would escape the danger of these seizures, to be exceedingly circumspect in his whole voyage. From the case of the Trende Sostre (1) it appears that he will not be permitted with impunity to touch at an enemy's port, if he have contraband goods on board, upon any excuse, however genuine, of selling other things less objectionable in their nature. Innocent articles, if they are so unfortunate as to be in company with obnoxious commodities, must take the ill consequences resulting from such an association. They must proceed to some other port, where the enemy is not established, and where the obnoxious commodities consequently lose their contraband character, and become fair articles of general trade. For though sailcloths and hemp are most mischievous materials, if they be sailing to a hostile market, yet a belligerent nation interposes no objection against the transfer of such commodities from a neutral possessor to her own subjects, or to another neutral. It is a metaphorical maxim very frequently to be met with in the cases upon these captures, that contraband is of an infectious nature, and contaminates the whole cargo. The innocence, (1) Reported in a note to the case of the Lisette, 6 Rob. Rep. 390. |