would be an end of any prohibition under the law of nations to carry contraband, or to engage in any other hostile act. If any loss is sustained in such a service, the neutral yielding to such demands

of goods of a belligerent to his fleet, lying in a neutral port, deprived the neutral of his freight, which the captor usually allows him in a simple case of carrying enemy's goods. The case was, in truth, one in which the neutral, by carrying directly to the fleet of a belligerent, articles capable of use by the fleet, and necessary for its support, dropped his neutral character, and made himself, so far, a party to the war. (See note 228, infrà, on Carrying Hostile Persons and Papers.) But it is not necessary that there should be a proved intent to deliver into military hands, to make the case one of contraband. The neutral will usually send his goods- whether purely contraband or ancipitis usus, the one as well as the other-to a private consignee, for sale in the market. He usually has, in fact, no intent in the matter but a commercial one, to sell his goods for the highest price. If his mortar and loaded shells will get a higher price from a humane society, to be placed on the coast to aid in rescuing shipwrecked mariners, or if his gunpowder will sell better to be used in blasting rocks, to build a church, his consignee will probably make such sales. The expectation or preference of the neutral for one use or another, belligerent or peaceful, of his goods, irrespective of their price, can rarely be ascertained by a prize court as a fact; and, if articles useful in war come within a belligerent's control, the belligerent government may buy them, or, in case of necessity, seize them, making compensation, without regard to the wishes of the owner or his agent. The truth is, the intent of the owner is not the test. The right of the belligerent to prevent certain things getting into the military use of his enemy, is the foundation of the law of contraband; and its limits are, as in most other cases, the practical result of the conflict between this belligerent right, on the one hand, and the right of the neutral to trade with the enemy, on the other. Belligerent interests might well contend, that any merchandise sent into his enemy's country gives that enemy aid or relief, moral, financial, or physical. But to prevent such trade, would be to end all neutral commerce. Neutral interests, therefore, insist on the strictest limits of the war-right of seizure, and have, at times, striven to confine the rule to instruments which are completed, and are of exclusively military use. The result of this conflict has left rather an undefined and irregular line. Articles of doubtful use the belligerent seeks to condemn, on evidence or presumptions that they were in fact intended to be, or would in fact become, whatever the intent, a direct contribution to the military force of his enemy. The chief maritime belligerents have enforced this right, while the chief neutrals have argued against it, in their books and diplomatic letters, and sought to restrict it in their treaties. So, where articles are not of a military character, but suitable for household food, as breadstuffs, the belligerent claims the right to capture them, if bound to a port under the stress of actual siege, where the fate of the place may depend on the mere question of food. The ground is, that the circumstances necessarily bring the food into the category of a direct supply of the military necessities of the enemy.

Mr. Moseley (Contraband of War, pp. 9, 110) contends, that, as to goods ancipitis usus, the question is solely one of evidence, in each case, whether "those very goods are or are not destined for military use;" and expresses the hope, that an adjustment may be made by the British courts throwing many articles of common use, as ship-timber, sails, cordage, marine steam-machinery, &c., from the first into the second class, — while the continental courts shall agree that articles of the second class, if they “have a manifest destination for use in war," shall be contraband. This, he says, will resolve such cases into questions of degrees of evidence in each instance. If the learned author

must seek redress from the government which has imposed the restraint upon him. (a) As to the number of military persons necessary to subject the vessel to confiscation, it is difficult to de

means, by "destination," the actual and fixed intent of the owner,- that his intent is to be the factum probandum, which the prize court must be satisfied of, by proof or by the aid of artificial presumptions, in each case, —I doubt if such a thread of doctrine is to be traced in the cases; nor can I believe it to be a practicable rule in war. As suggested above, the owner will usually have no fixed intent, or his intent may be overridden by the enemy's power. Besides, if the proved intent is made to operate against the neutral in cases of articles ancipitis usus, why should not the absence of such intent, or proof of a contrary intent, operate in his favor, in cases of articles primarily of military use? I am inclined to the opinion, that an actual intent to deliver articles capable of military use directly into military hands, condemns the articles, at all events, as a voluntary intervention of their owner in the war; and that, whether there be or be not such an intent, the belligerent may capture certain articles, because of their destination to a place where they will come under the enemy's control, and so may be used by the enemy in direct military operations. This view is more in harmony with the laws of war in other cases. The goods of a neutral who is domiciled in enemy's territory are condemned, not because of any proved or presumed hostility of their owner, or because of any proved or presumed intent of his as to their use, but because the belligerent State, in whose territory the owner is domiciled, has such a sovereign authority over him and his property as to give that State an interest in the goods and their transit, and thus make them, in the technical language of prize courts, enemy's property. If a neutral, domiciled in a neutral land, sends goods not contraband for sale in market to a belligerent country, it is true the belligerent has some interest in the goods and their transit; but he has not sovereign authority over the owner or his goods, and to interdict such trade would be to interdict all trade between neutrals and belligerents. For these reasons, it is allowed that such goods, so destined, are not enemy's property. But one belligerent may prevent the other from obtaining direct military aid; and goods of a certain description, bound into the country of the one, are so liable to become directly military aid, that they may be intercepted by the other. This is the practical result of the conflict of the two forces of war and of trade. In administering this law, the question has arisen, whether the belligerent is limited to an inspection into the intrinsic nature of the goods themselves, or may look further. It is agreed, that a class of goods may be declared, in their inherent nature, exclusively or substantially of military use, and that these he may intercept without further inquiry. It is also agreed, that there are goods not coming within that class, but which are capable of direct military as well as civil use, as to which their intrinsic nature alone ought not to furnish conclusive proof in their favor. The question is, shall the fact of their ambiguous character stop, or shall it open, further inquiry? The weight of practice by belligerents or concession by neutrals, and of the opinions of writers, has certainly hitherto been in favor of the latter course. If further inquiry shows that the owner intended to deliver them directly into military hands for military use, he loses them, not simply from their inherent contraband nature, but by reason of his own unneutral act. Although nothing be developed as to the owner's intent, yet if the condition of the port of destination, or the character and state of the war, make it satisfactorily appear that they will, in all probability, go directly into military use, or directly tend to relieve an enemy from hostile pressure, the right of the belligerent to intercept them may be (a) The Carolina, Robinson's Adm. Rep. iv. 256.

fine; since fewer persons of high quality and character may be of much more importance than a much greater number of persons of lower condition. To carry a veteran general, under some circumstances, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore the belligerent has a stronger right to prevent and punish it; nor is it material, in the judgment of the prize court, whether the master be ignorant of the character of the service on which he is engaged. It is deemed sufficient if there has been an injury arising to the belligerent from the employment in which the vessel is found. If imposition be practised, it operates as force; and if redress is to be sought against any person, it must be against those who have, by means either of compulsion or deceit, exposed the property to danger; otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the privity of the immediate offender. (b)

lently car

ry ing hostile

§ 503. The fraudulently carrying the despatches of the Frauduenemy will also subject the neutral vessel, in which they are transported, to capture and confiscation. The conse- despatches. quences of such a service are indefinite, infinitely beyond the effect of any contraband that can be conveyed. "The carrying of two or three cargoes of military stores," says Sir W. Scott, "is necessarily an assistance of a limited nature; but in the transmission. of despatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent in that quarter of

exercised solely for those reasons. In such case, it rests on his right to intercept aid to his enemy, though the act of the neutral carrier is not unlawful; and the captor, therefore, pays the neutral his freight. (This part of the subject is further considered in the note 230, infrà, on Penalty for Carrying Contraband.)

The leading English decisions as to what articles are and are not contraband of war are the following: Richmond, Rob. v. 325. Brutus, Ibid. v. 331, note. Neptunus, Ibid. iii. 108. Nostra Signora de Begona, Ibid. v. 97. Carpenter, Acton, ii. 11. Neptunus, Rob. vi. 403. Staat-Embden, Ibid. i. 26. Endraught, Ibid. i. 22. Twende Brodre, Ibid. iv. 33. Twee Juffrouen, Ibid. iv. 242. Jonge Tobias, Ibid. i. 329. Maria, Ibid. i. 340, 873. Christina Maria, Ibid. iv. 166. Sarah Christina, Ibid. i. 237, 241. Charlotte, Acton, i. 201. Med Good's Hielp, Rob. i. 89 (cited). Ringende Jacobh, Ibid. i. 89. Gute Gesellschaft Michael, Ibid. iv. 94. Apollo, Ibid. iv. 158. Evert, Ibid. iv. 344. Jonge Margaretha, Ibid. i. 189. Hacket, Ibid. ii. 174. Edward, Ibid. iv. 68. Frau Margaretha, Ibid. vi. 92. Zeiden Rust, Ibid. vi. 93. Ranger, Ibid. vi. 125.

The principal American cases on the same point are the Commercen, Wheaton, i. 382; and Gallison, ii. 261. Maissonnaire v. Keating, Gallison, ii. 325.] — D. (6) The Orozembo, Robinson, vi. 430.

the world. It is true, as it has been said, that one ball might take off a Charles the XIIth, and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that, in the contemplation of human events, it is a sort of evanescent quantity of which no account is taken; and the practice has been, accordingly, that it is in considerable quantities only that the offence of contraband is contemplated. The case of despatches is very different; it is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences. It is a service, therefore, which, in whatever degree it exists, can only be considered in one characteras an act of the most hostile nature. The offence of fraudulently carrying despatches in the service of the enemy being, then, greater than that of carrying contraband under any circumstances, it becomes absolutely necessary, as well as just, to resort to some other penalty than that inflicted in cases of contraband. The confiscation of the noxious article, which constitutes the penalty in contraband, where the vessel and cargo do not belong to the same person, would be ridiculous when applied to despatches. There would be no freight dependent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which they are carried must, therefore, be confiscated." (a)

Carrying § 504. But carrying the despatches of an ambassador diplomatic despatches. or other public minister of the enemy, resident in a neutral country, is an exception to the reasoning on which the above general rule is founded. "They are despatches from persons who are, in a peculiar manner, the favorite object of the protection of the law of nations, residing in the neutral country for the purpose of preserving the relations of amity between that State and their own government. On this ground, a very material distinction arises, with respect to the right of furnishing the conveyance. The neutral country has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any communication between them can partake, in any degree, of the nature of hostility against you. The limits assigned to the operations of war against ambassadors, by writers on public law, are, that the belligerent may exercise his right of war against them, wherever the

(a) The Atalanta, Robinson, vi. 440.

character of hostility exists: he may stop the ambassador of his enemy on his passage; but when he has arrived in the neutral country, and taken on himself the functions of his office, and has been admitted in his representative character, he becomes a sort of middle man, entitled to peculiar privileges, as set apart for the preservation of the relations of amity and peace, in maintaining which all nations are, in some degree, interested. If it be argued, that he retains his national character unmixed, and that even his residence is considered as a residence in his own country; it is answered, that this is a fiction of law, invented for his further protection only, and as such a fiction, it is not to be extended beyond the reasoning on which it depends. It was intended as a privilege; and cannot be urged to his disadvantage. Could it be said that he would, on that principle, be subject to any of the rights of war in the neutral territory? Certainly not: he is there for the purpose of carrying on the relations of peace and amity for the interests of his own country primarily, but, at the same time, for the furtherance and protection of the interests which the neutral country also has in the continuance of those relations. It is to be considered also, with regard to this question, what may be due to the convenience of the neutral State; for its interests may require that the intercourse of correspondence with the enemy's country should not be altogether interdicted. It might be thought to amount almost to a declaration, that an ambassador from the enemy shall not reside in the neutral State, if he is declared to be debarred from the only means of communicating with his own. For to what useful purpose can he reside there, without the opportunity of such a communication? It is too much to say that all the business of the two States shall be transacted by the minister of the neutral State resident in the enemy's country. The practice of nations has allowed to neutral States the privilege of receiving ministers from the belligerent powers, and of an immediate negotiation with them." (a)228

(a) Sir W. Scott's Opinion in the Caroline, Robinson, vi. 461.

[28 Carrying Hostile Persons or Papers. — This topic requires a separate treatment from that of contraband, by reason of the actual state of the practice of nations, although logically it may seem to come within the same principle. The rule is that the neutral shall not intervene to aid a belligerent in his military operations, or to ward off or relieve the pressure of war which the other belligerent is exercising upon him. But here arises the question of degree. How much may he do, without violating this rule! The question of degree is not settled with exactness; and, where settled, it is