nations, her attitude will have been one of great advantage to the world. If not, her plea of self-defence in keeping up the system of privateering will probably be regarded in another age as more selfish than wise.

176.

Until about the middle of the eighteenth century writers on the law of nations for the most part held, that Opinions of pubneutral goods were safe in any vessel, and hostile licists, etc. liable to capture in any vessel. Some of the earlier writers, as Grotius, Zouch and Loccenius, go beyond this rule in severity towards the neutral ship, and seem to think that if the owners admitted hostile property on board, the vessel might be made prize of. They also lay it down that goods on hostile vessels belong presumptively to the enemy, but may be saved from harm on proof to the contrary. Bynkershoek in 1737, and Vattel in 1758, state the doctrine as it has been understood by those who maintain that enemy's goods on neutral vessels but not neutral on enemy's vessels are lawful prize. The latter expresses himself thus: "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. The effects of neutrals found in an enemy's ship are to be restored to the owner, against whom there is no right of confiscation; but without any allowance for detainer, decay, etc. The loss sustained by the neutrals on this occasion is an accident, to which they exposed themselves by embarking their property in an enemy's ship; and the captor, in exercising the rights of war, is not responsible for the accidents which may thence result, any more than if his cannon kills a neutral passenger who happens unfortunately to be on board an enemy's vessel." Mr. Manning cites Moser (1780) and Lampredi (1788) to the same effect. English authorities are unanimous in declaring these to be rules of international law. Our supreme court, and our principal writers on this branch, take the same ground. Chancellor Kent says: "The two distinct propositions, that enemy's

goods found on board a neutral ship may be lawfully seized as prize of war, and that the goods of a neutral found on board an enemy's véssel are to be restored, have been explicitly incorporated into the jurisprudence of the United States, and declared by the supreme court to be founded on the law of nations. I should apprehend the belligerent right to be no longer an open question; and that the authority and usage on which that right rests in Europe, and the long, explicit, and authoritative admission of it by this country, have concluded us from making it a subject of controversy; and that we are bound in truth and justice to submit to its regular exercise, in every case, and with every belligerent power who does not freely renounce it."* Again, Dr. Wheaton says: "Whatever may be the true, original, abstract principle of natural law on this subject, it is undeniable that the constant usage and practice of belligerent nations, from the earliest times, have subjected enemy's goods in neutral vessels to capture and condemnation, as prize of war. This constant and universal usage has only been interrupted by treaty-stipulations, forming a temporary conventional law between the parties to such stipulations." "The converse rule, which subjects to confiscation the goods of a friend on board the vessels of an enemy, is manifestly contrary to truth and justice." +

The opposite doctrine, in regard to enemy's goods on neutral vessels, was first maintained by a Prussian commission appointed to look into the complaints of certain merchants who had had French goods taken out of their vessels by English cruisers in 1744. They venture to affirm that such conduct is * I. 129–131, Lect. VI.

† El. IV. 3, §§ 19, 21. It may be added that the United States, in their diplomatic intercourse with foreign governments, have long claimed it to be a neutral right that free ships should make free goods. Mr. Marcy, in 1854, in a note to the British envoy at Washington, expresses the President's satisfaction that "the principle that free ships make free goods, which the United States have so long and so strenuously contended for as a neutral right, is to have a qualified sanction" in the war of England and France with Russia. He means probably no more than that this is a fair and just claim of neutrals, not that it is an admitted one, or a part of actual international law. And such we believe to have been the ground previously taken.

not only contrary to the law of nations, but also to all the treaties which were ever concluded between maritime powers,— two propositions which are equally untenable. In 1759, Martin Hübner, a professor at Copenhagen, claimed that this principle ought to be admitted into international law; and chiefly on two grounds, first that neutral ships are neutral territory, and again that commerce is free to neutrals in war as well as in peace; since war ought not to injure those who are not parties in the contest. In more recent times several writers on the law of nations have taken the same position. Thus Klüber says, "On the open sea every ship is exterritorial in reference to every state except its own: a merchant ship is to be looked on as a floating colony. Therefore a belligerent power on the open sea ought to be permitted neither to visit a neutral vessel, nor to take hostile goods out of it, still less to confiscate the ship on account of the goods found in it." And again, "A belligerent power ought to be allowed as little to confiscate neutral goods found on an enemy's vessel, as if they had been met with on the soil of the enemy's territory." De Martens holds to the freedom of neutral ships.* Ortolan, while rejecting this ground, turns to sounder principles of natural justice. "If the goods," says he, "put on board a neutral vessel have not, of themselves, a hostile character, that the neutral should take pay for his ship and for the labor of his sailors, has nothing in it irreconcilable with the duties of neutrality. Why then should a belligerent obstruct such trade by seizing the cargo? Is it not legitimately in the hands of friends, who have made and have had the right to make a bargain to carry it for pay to a place agreed upon, and who, apart from the freight, have an interest in securing its preservation, since on this may depend the success or failure of the commercial enterprise in which they are engaged? And in hindering, by the confiscation of goods transported, this commerce of freight and commission, do not belligerents abuse the principle, which permits them to capture enemy's property on the sea, by pushing this prin

* Klüber, § 299, p. 354, ed. in German of 1851. De Martens, § 316, vol. II. 322, Paris ed. of 1858.

ciple into consequences which unjustly attack the independence and essential rights of friendly nations?" He adds, that the practice of paying freight for the goods thus taken out of neutral ships contains a kind of confession that the neutral has sustained an injury, whilst yet the payment of freight is by no means an adequate compensation for all their losses.

Neutral property

vessels.

$177.

While the neutral can put his goods on the merchant vessel of either of the belligerents in safety, it has been in armed enemies' made a question whether he can make use of their armed vessels for that purpose. The English courts have decided against, and the American courts in favor of the neutral's using such a conveyance for his goods. On the one hand it may be said, that in this act an intention is shown. to resist the right of search, and the inconveniences of capture, and of transportation to a port such as the captor may select. On the other hand, the neutral, his goods being safe already, has perhaps no great motive to aid in resistance, for the complete loss of his goods is endangered by an armed engagement. If, however, the neutral can be shown to have aided in the arming of the vessel, it is just that he should suffer.

The decision of this case, as Chancellor Kent observes,* is of very great importance. Yet with the discontinuance of privateering such cases would cease, for few ships will be armed with the purpose to resist ships of war.

Contraband of

war.

$ 178.

Contrabannum, in medieval Latin, is merces banno interdictæ. (Du Cange.) Bannus, or bannum, represented by our ban, and the Italian bando, denoted originally an edict, a proclamation, then an interdict. The sovereign of the country made goods contraband by an edict prohibiting their importation or their exportation. Such prohibitions are found in Roman law. A law of Valentinian and his colleagues (Cod. IV. 41, 1), forbids the exportation of wine,

* I. 132, Lect. VI.

oil, and fish-sauce (liquamen) to barbarian lands, and another of Marcian (ibid. 2), the selling of any arms or iron to barbarians, the latter on pain of confiscation of goods and death. Several Popes threatened with the ban the conveyance of arms. to infidels, and similar prohibitions are found in some of the ancient maritime codes. Contraband of war perhaps denoted at first that which a belligerent publicly prohibited the exportation of into his enemy's country, and now, those kind of goods which by the law of nations a neutral cannot send into either of the countries at war without wrong to the other, or which by conventional law the states making a treaty agree to put under this rubric.*

If there was a famine in one of the countries at war, and a friendly power should send provisions thither, either at the public expense or for a compensation, the act would be a lawful one. But if the neutral, instead of wheat, should send powder or balls, cannon or rifles, this would be a direct encouragement of the war, and so a departure from the neutral position. The state which professed to be a friend to both has furnished one with the means of fighting against the other, and a wrong has been done. Now the same wrong is committed when a private trader, without the privity of his government, furnishes the means of war to either of the warring parties. It may be made a question whether such conduct. on the part of the private citizen ought not to be prevented by his government, even as enlistments for foreign armies on neutral soil are made penal. But it is difficult for a government to watch narrowly the operations of trade, and it is annoying for the innocent trader. Moreover, the neutral ought not to be subjected by the quarrels of others to additional care and expense. Hence by the practice of nations he is passive in regard to violations of the rules concerning contraband, blockade and the like, and leaves the police of the sea and the punishing or reprisal power in the hands of those who are most

* The explanation of contrabannum from the church ban laid on the carrying of arms, etc., to the enemies of Christianity, seems to be less worthy of acceptation than that given in the text.