་ William Scott, in the case of the Neptunus (1), considered as "the cargo is liable to the same judgment with the ship." But evidence will be generally admitted, on the part of the owners of the cargo, sel is implicated; for though the presumption is always against to exonerate them from the guilt in which the ves them, yet it is not impossible that the master alone may have been to blame. In cases however where any privity appears between the owners of the cargo and the master, the subsequent imputation of the entire blame to the master alone will not avail to protect the owners of the cargo. In the Juffrow Maria Schroeder (2), the cargo was even placed in a worse situation than the ship: for the ship was restored on the ground of her having been permitted by licence to take a cargo in, and being therefore fairly at liberty to bring a cargo out: but an evil intention appearing on the part of the owners of the cargo to slip it out whenever an opportunity should occur, the cargo was condemned. From the same case it farther appears, that where a ship has contracted guilt, by sailing with an intention of entering a blockaded port, or by sailing out, "the offence is not purged away until the end of the voyage; till that period is completed, it is competent to any cruizers to seize and proceed against her for that offence (3).” "When a vessel enters an interdicted port," said Sir William Scott, in the case of the Christianberg (4)," the offence is consummated, and the intention is for the first time declared. It is not till the vessel comes out again, that any opportunity is afforded of vindicating the law, and of enforcing the restriction of this order. It is objected that, if the penalty is applied to the subsequent voyage, travel on with the vessel for ever. In principle perhaps it might, not unjustly, be pursued farther than to the immediate voyage. But we all know, that in practice it has not been carried farther than to the voyage succeeding, which affords the first opportunity of enforcing the law." it may But though the offence is consummated by the act of sailing, yet if between the times of sailing and of capture the blockade have been raised, that offence is held to be wiped away. This (1) 3 Rob. Rep. 173. Juffrow Maria Schroeder, 3 Rob. 147. Adonis, 5 Rob. 256. Exchange, 1 Edw. 39. Mercurius, 1 Rob. 80. (2) 3 Rob. Rep. 147. (3) Juffrow Maria Schroeder, 3 Rob. 147. Acton, 25. (4) 6 Rob. Rep. 376. Welvaart Illegal assistance by conveying dispatches. was decided in the case of Lisette (1), on the ground that the necessity of applying the penalty to prevent future transgression continued no longer, after the cessation of the blockade. Now with respect to the circumstances under which a blockade may be deemed to have ceased, the case of the Hoffnung (2) seems to have firmly established, that the raising of a blockade by a superior force is a total defeasance of that blockade and of its operations. "A new course of events arises," said Sir William Scott, which may tend to a very different disposition of the blockading force, and which introduces therefore a very different train of presumptions in favour of the ordinary freedom of commercial speculations. In such a case, the neutral merchant is not bound to forsee or to conjecture that the blockade will be resumed; and therefore, if it is to be renewed, it must proceed de novo, and without reference to the former state of facts which has been so effectually interrupted.” On the same principle on which contrabands of war and infractions of blockade have been interdicted in the commerce of neutrals, I mean the principle, that a neutral has no right to relieve a belligerent against the direct hostility of his enemy,.it has been held, that other acts of illegal assistance afforded to an enemy, expose to confiscation the property of the neutral concerned in them. Among these, none is of a more injurious nature than the conveyance of hostile dispatches. A full review of the authorities and a summary of the principles on this subject, will be found in Sir William Scott's judgment in the case of the Atalanta (3). The vessel bearing that name had been captured, carrying dispatches from a French colony to Paris. The mischievous consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be conveyed; the carrying of two or three cargoes of stores is necessarily an assistance of a limited nature: but in the transmission of dispatches may be conveyed the entire plan of a campaign, that may defeat all the projects of the other belligerent in that quarter of the world. The strict rule of the law of nations originally was, as we have already seen, that in cases of contraband the ship should be (1) 6 Rob. Rep. 387. (2) 6 Rob. Rep. 112. Tuketen, 6 Rob. 65. ; and see 1 Ac ton's Rep. 59. 61. 261. (3) 6 Rob. Rep. 440. 1 Edw. 41. confiscated as well as the cargo. Modern practice has, in most cases of that rule, But as the conveyance of dispatches is a much greater offence, and as that offence, though committed by the master, is to be taken as virtually the offence of the owner of the ship, contraband, though not in all, very leniently relaxed according to that rule of law which makes the principal responsible for the acts of his agent, the court in this case thought it proper to condemn the ship. In cases of contraband, the forfeiture of the goods themselves, and the loss of the freight by the master, are penalties of considerable force. "But," observed Sir William Scott, "to talk of the confiscation of dispatches would be ridiculous. There would be no freight dependant on it, and therefore the same precise penalty cannot, in the nature of things, be applied. It becomes absolutely necessary as well as just, to resort to some other measure of confiscation, which can be no other than that of the vehicle." The owners of the cargo, as appears from the same case (1), are resposible only as in other instances, where they are actually culpable, or where a privity subsists between them and the master, which involves them, by implication, in his delinquencies. The case of the Caroline (2), turns upon the same question; and Dr. Robinson has subjoined a valuable note, containing several interesting authorities. In this case of the Caroline, however, the ship and cargo were restored to the neutral claimants, because it appeared that the dispatches on board were not (as in the last case) going to the mother country of the enemy, from the enemy's colony, but only from the enemy's ambassador resident in a neutral country. "The neutral country," said Sir William Scott, "has a right to preserve its relations with the enemy, and you are not at liberty to conclude, that any communications between them can partake in any degree of the nature of hostility against you. The enemy may have his hostile projects to be attempted with the neutral state; but your reliance is on the integrity of that neutral state, that it will not favour nor participate in such designs, but, as far as its own counsels and actions are concerned, will oppose them. them. Another distinction," continued the learned judge," arises from (1) Vide et Rapid, 1 Edwards, (2) 6 Rob. Rep. 461. Madison, Carrying troops, &c. Trade contrary to treaty. Submission of Neutral to outrages of one of the character of the person who is employed in the correspondence. He is not an executive officer of the government, acting simply in the conduct of its own affairs, within its own territories, but an ambassador resident in a neutral state, for the purpose of supporting an amicable relation with it. I have before said, that persons discharging the functions of ambassadors, are, in a peculiar manner, objects of the protection and favour of the law of nations.". Equally intolerable is the employment of a neutral ship, as a transport for the private men, or for the officers of the enemy; and such vessels were accordingly condemned, in the cases of the Friendship (1), and the Orozembo (2). There is yet another species of commerce, which is illegal to the neutral engaged in it. It is that which he may be carrying on, in contravention of particular treaties, concluded with either belligerent. In this case, the belligerent, whose compact is thus violated, has a right to call the neutral to account for his misconduct (3). It appears also to be admitted, that if a belligerent adopts a mode of conduct towards a neutral, which amounts to an act of the Belligerents. hostility, and in which that neutral acquiesces, the other belligerent has a right to retaliate (4); and that if a decree interdicting a neutral from trading with us, or visiting our ports, is executed upon him, it is an interdiction he has no right to submit to, because the moment it is executed, we are injured by the interruption of his commerce with us. If he submits, from favour, to the unjust belligerent, he directly interposes in the war, and the neutral character is at an end; retaliation then would not only be strictly applicable, but just and legal; and if he submits from weakness or from any other cause not hostile or fraudulent, we have an unquestionable right, without any invasion of neutrality, to insist, that what he suffers from the enemy he shall consent to suffer from us, otherwise he would keep an open trade with the enemy at our expence, relieving him from the pressure of the war, and becoming an instrument (1) 6 Rob. Rep. 420. (4) Lord Holland's Speech, 26 Feb. 1808, on Orders in Council, 10 Cobbett's Parl. Deb. 783. See also Baring on Orders in Council, 110, 1. of its illegal pressure upon us. In that case also the term retaliation, though not applicable perhaps in literal strictness, as it applies to the neutral, is substantially and justly applicable to him; because it is, in fact, retaliation upon the enemy through the sides of the neutral, in a case where the injury to us cannot exist without the participation of the neutral, in doing or suffering, by either of which our commerce is alike interrupted (1). It was on this principle that Sir William Scott, in the case of Nayade (2), decided, that goods the property of a merchant resident in Portugal, and consigned from thence to Bourdeaux, were liable to capture by a British vessel, the Portuguese having submitted to repeated insults from France, though she had not declared war. Having thus considered the illegal acts by the commission of which a neutral trade may forfeit the natural immunities of his own commerce, as by contraband traffic, transgressions of blockade, the conveyance of dispatches or of troops, and by the contravention of particular treaties, or submission to the outrages of one of the belligerents—all which illegal acts are of an intelligible and unequivocal character-we will now examine a class of cases of a less decided character, cases of commerce so constituted as not to be necessarily fraudulent, though they usually are so. I speak of that commerce which either belligerent forbids to neutral states in time of peace, but permits them to enjoy in time of war; possibly, indeed, with a fair design, but more probably with the fraudulent and collusive intention of covering and withdrawing his own possessions from the grasp of his enemy's hostility. The possibility of fair dealing makes it impracticable to decide, ipso facto, on any particular adventure, that it is fraudulent and collusive; and therefore, on the other hand, the strong probability of fraud and collusion has made it necessary for the belligerents to declare that such adventures shall not be tolerated at all. The principal branches of trade which are thus incessantly liable to abuse, and from which it has therefore been deemed necessary that neutrals shall be totally excluded, are the enemy's coasting trade and the enemy's colonial trade. (2) 4 Rob. Rep. 251. |