7

be injured by articles of contraband which the enemy actually receives from ships having an ostensibly neutral destination; nor, on the other hand, will a powerful neutral allow the property of his subjects to be seized on the high seas when those goods, although partaking of the character of contraband, have a bona fide neutral destination. In the cases above cited the ultimate destination of the goods was so clearly hostile as to make it difficult, if not impossible, for the British Government to maintain the position that the goods of its subjects had been seized in the prosecution of an entirely innocent voyage, and were so entitled to the protection which that government invariably accords to its subjects when their rights have been wrongfully invaded by a foreign state.

Occasional Contraband. During the disturbed period intervening between the outbreak of the French Revolution in 1789 and the Treaty of Vienna in 1815, the old usages of international law were subjected to a severe and constant strain. This was due, in part, to the frequency and magnitude of the wars that were carried on, in which, at times, nearly all of the European states were participants; and, in part, to the great disparity that existed in the relative naval and military power of the principal belligerents. During the greater part of this period the military supremacy of France was successfully maintained against every effort to overthrow it by operations on land; on the other hand, the supremacy of England at sea was so firmly established as to secure even more general recognition. As these powers were generally opposed to each other, it is not remarkable that they should have attempted to interpret the rules of war, each in a sense favorable to its own interests; and as the one was strong where the other was weak, neither was able to interpose an effectual check upon the pretensions of the other. The result was that the rules of capture, on land and sea, underwent a considerable modification in the interest of belligerents, and to the prejudice of the rights of neutrals, as those rights were then understood. This influence upon the law of maritime capture was the more powerful from the fact that the northern states of Europe,

and, to a certain extent, the United States as well, entered into general commerce largely as producers of raw materials, which were consumed by the principal belligerents, and so were obliged to find a market in belligerent territory. Thus, while these states were generally neutral, they were not strong enough at sea, even when acting in concert, to assert effectively their views of neutrality, or even to successfully maintain their neutral rights.

Under these circumstances, not only was neutral commerce likely to suffer from any extension of the definition of contraband, but the commercial prosperity of neutral states was made to depend, in no small degree, upon that definition being closely restricted in its application to neutral property. Such an extension was effected by the application of the doctrine of occasional contraband, by the English prize-courts, to cargoes of neutral merchandise. According to this rule articles were condemned which had previously either been exempt from seizure, or, if regarded as contraband, had acquired that character only in exceptional cases, where the circumstances pointed clearly to an undoubtedly hostile destination. The articles so condemned were those usually classified as naval stores and provisions; and neutral states resisted the application of the new rule, partly because of the extreme hardship of the case, and partly because it was not, and had never been, generally recognized as a rule of international law."

1 "By the modern law of nations provisions are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life in the enemy's country, they are not, in general, contraband; but it is otherwise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed con

traband. Another exception from being treated as contraband is where the provisions are the growth of the neutral exporting country. But if they be the growth of the enemy's country, and more especially if the property of his subjects, and destined for enemy's use, there does not seem any good reason for the exemption; for, as Sir William Scott has observed, in such a case the party has not only gone out of his way for the supply of the enemy, but he has assisted him by taking off his surplus

The English prize-courts admitted the force of the objection and the irregularity of the practice by a somewhat less rigorous application of the new rule, and certain mitigating circumstances were recognized as creating presumptions in favor of innocence. In their application of the modified rule it was held that if the goods were produce of a neutral state, and were shipped, as raw materials, to strictly commercial ports, these facts were allowed to weigh against condemnation and in favor of restoration.'

The Rule of Pre-emption. At a later period the original doctrine was still further modified by the adoption of the rule of pre-emption, by which the prize-courts, in some cases, decreed the purchase of the cargo at its value at the port of origin, together with freight and demurrage, with a fair mercantile profit, usually ten per cent., instead of condemning it as contraband of war. The rule, as modified, continued to be enforced until the close of the period of the Napoleonic wars. Their justice was not discussed at the Congress of Vienna, and the Treaty of Vienna contained no provisions upon the subject of maritime capture or contraband of war. They never received such general sanction as to entitle them to be accepted as rules of international law. On the other hand, they were objected to from the first, and so seriously as to lead to the formation of alliances to resist their application. They are no longer seriously maintained as rules of international obligation; and it may safely be said that no modern state would permit the property of its subjects to be confiscated by the operation of rules the justice of which it did

commodities."-The Commercen, I Wheaton, 382 [388]. "Admitting that provisions are not, in general, contraband of war, it is clear that they become so when destined to a port of naval equipment of an enemy, and, a fortiori, when destined for the supply of his army." -Maisonnaire vs. Keating, 2 Gal

lison, 335; III Dig. Int. Law, § 370.

'The Jonge Margaretha, 1 Robinson, Adm. Rep. p. 189; III Phillimore, §§ 249-259.

2

See Admiralty Instructions of June 8, 1793, and the British Orders in Council of April, 1795; Dana's Wheaton, §§ 485-501, note 226; II Halleck, pp. 261-266.

not recognize, or by the exercise of rights which were not sanctioned by international law.'

Neutral Conveyance of Enemy's Troops and Despatches. It has been seen that the conveyance of contraband of war is an offence against the law of nations. A neutral individual who carries contraband to either belligerent assists that belligerent to a greater or less extent, depending upon the character and quantity of the goods transported. A neutral who goes a step further and engages in the transport service of a belligerent renders still more material aid to such belligerent than is afforded by the mere conveyance of contraband, and, by such conveyance of ammunition, provisions, and warlike stores to a belligerent, for the support of his armies in the field, divests himself of his neutral character and acquires that of an enemy, including the liability to capture and condemnation of both ship and cargo. The conveyance of troops and despatches operates still more powerfully to impress the neutral carrier with the enemy character to the extent of causing the ship so engaged to be condemned as prize of war-this because, in point of directness and importance, the service rendered by the conveyance of either is much greater than that afforded by the conveyance of ordinary contraband. The assistance rendered

III Phillimore, §§ 267-270; Manning, pp. 359, 393; V Calvo, §§ 27902795; the Sarah Christina, 1 Robinson, Adm. Rep. p. 238; the Haabet, 2 Ibid. p. 174.

"An attempt has been made to distinguish this case from the ordinary cases of employment in the transport service of the enemy, upon the ground that the war of Great Britain against France was a war distinct from that against the United States, and that Swedish subjects had a perfect right to assist the British arms in respect to the former, though not to the latter. Whatever might be the right of the Swedish sovereign, acting under his own authority, we are of opinion that if a Swedish vessel be

engaged in the actual service of Great Britain, or in carrying stores for the exclusive use of the British armies, she must, to all intents and purposes, be deemed a British transport. It is perfectly immaterial in what particular enterprise those armies might, at the time, be engaged; for the same important benefits are conferred upon an enemy, who thereby acquires a greater disposable force to bring into action against us.""-Per J. Story. The Commercen, 1 Wheaton, 382; the Carolina, 4 Rob. 256; the Friendship, 6 Rob. 420; the Orozembo, Ibid. 430.

Chief-justice Marshall strongly dissented from the application of this principle.

to an enemy by a single cargo of munitions of war, though direct and material, is, at best, limited. The mischief that may result from the carriage of a single despatch, or general officer, may have a decisive effect upon the issue of a war. The penalty for engaging in contraband trade usually extends to a forfeiture of the contraband articles. The question as to the ship and non-contraband cargo is made to depend on the guilty knowledge of their owners. If they are forfeited it is because a presumption of such knowledge is created by the fact of ownership. When troops or despatches are carried to a hostile destination, however, the presumption of guilt created by such carriage is so strong as to be regarded as conclusive; and the ship is invariably condemned as the instru ment with which the offence against international law has been committed.'

Definition of Terms Troops and Despatches. The term troops includes not only military persons, but all individuals having an official character in the service of a belligerent, whose assistance is material in the prosecution of the war, or whose detention is calculated to impair his military efficiency.

Despatches are official communications between official persons, in the military or civil service of a state, upon matters connected with the public business. All other communica

1 "The general rule that the neutral carrier of enemy's property is entitled to his freight is now too firmly established to admit of discussion; but to this rule there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or has interposed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence the carrying of contraband goods to the enemy, the engaging in the coasting or colonial trade of the enemy, the spoliation of papers, and the fraudulent suppression of enemy's inter

ests, have been held to affect the neutral with the forfeiture of freight; and in cases of a more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy, or a breach of blockade, the penalty of confiscation of the vessel has also been inflicted."-The Commercen, I Wheaton, 382; the Atalanta, 6 Robinson, Adm. Rep. p. 440; the Madison, Edwards, 224; V Calvo, §§ 2796-2826; Hall, §§ 249, 250; III Phillimore, §§ 271-274; Dana's Wheaton, § 502, note 228.