are liable to the charge of freight; although it may be a good and valid demand against the owner, which the parties must settle elsewhere."

There are certain cases, however, in which contraband articles may be brought in, not for confiscation but for pre-emption. In the case of The Haabet (2 Rob. 174), Lord Stowell said, "The right of taking possession of cargos of this description (commeatus— 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 cargos subject only to a right of preemption, 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 cargos 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. It is a mitigated exercise of war on which my purchase is made, and no rule has established that such a purchase shall be regulated

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exactly upon the same terms of profit which would have followed the adventure if no such exercise of war had intervened. It is a reasonable indemnification and a fair profit on the commodity that is due, reference being had to the original price actually paid by the exporter, and the expenses which he has incurred. As to what is to be deemed a reasonable indemnification and profit, I hope and trust that this country will never be found backward in giving a liberal interpretation to these terms; but certainly the capturing nation does not always take these cargos on the same terms on which an enemy would be content to purchase them; much less are cases of this kind to be considered as cases of costs and damages, in which all loss of possible profit is to be laid upon unjust captors; for these are not unjust captures, but authorized exercises of the rights of war." Pre-emption," observed

the learned judge, in The Sarah Christina (1 Rob. 241), “is no unfair compromise between the belligerent rights, founded on the necessities of self-defence, and the claims of the neutral to export his native commodities, though immediately subservient to the purposes of hostility."

The Danish government has issued a declaration containing its definitions of contraband, which includes horses, timber for construction of vessels, tar, copperplates, sailcloth, canvas, hemp, cordage, &c., but not coals; besides, the royal Danish ordinance of May 4th, 1803, is renewed. So, no Danish pilots, or men acquainted with the Danish straits and seas, are allowed to serve on board the belligerent powers' vessels. In the instructions for the commanders of the Danish guard ships, they are instructed to observe a strict

neutrality-to protest against the taking of captured war or merchant vessels into Danish ports, but not to oppose it by force, and only to use force against privateers. The Danish territory is to be considered to extend one Danish sea mile from the coast, except at Kromborg and the river Elbe at Gluckstadt, where the distance is named as three thousand ells-six thousand feet.

RIGHT OF SEARCH.

The rights of a belligerent nation against the delinquencies of neutrals would exist in vain if she were not armed with a practical power, by which those rights may be enforced. Such a power, by the law of nations, regularly exists; and it is called the power of visitation and search. "We cannot prevent the conveyance of contraband goods," says Vattel (Book iii. c. 7, s. 114)," without searching neutral vessels that we meet at sea. We have, therefore, a right to search them." This is clear and satisfactory. If, upon making this search, the vessel be found employed in contraband trade, or in carrying despatches or troops, or in any other illegal commerce, she is brought in for adjudication in the Court of Admiralty. If, on the other hand, her commerce appear to be legitimate, she is dismissed without further molestation or inconvenience.

Neutrals have made many struggles against this right of visitation and search, and particularly by the celebrated league, which was formed during the American war, with the Empress of Russia at its head. A declaration, dated the 28th February, 1781, was delivered to the minister of each of the belligerent

powers, purporting, "that neutral ships ought to be at liberty to navigate freely from port to port, and upon the coast of the nations at war; that the goods and effects of the subjects of the belligerent powers should be free, with the exception of contraband goods; that no goods should be considered as contraband, but such as were specified in the 10th and 11th articles of the treaty of commerce between Russia and Great Britain, dated 20th of June, 1766; that to ascertain what should be deemed a blockaded port, it was determined that none should be admitted to come within that description, but such only, where, by reason of the near approach of the ships employed in the attack, there was an apparent danger that they would be able to enter it. And finally, that these principles should serve as a basis for all proceedings and judgments upon the legality of prizes."

The right of visitation and search was not strictly enforced by Great Britain under these circumstances; but it was not abandoned. Similar attempts, subsequently made, have been defeated and totally overthrown, and the right at this day subsists practically as well as theoretically. Such opposition (illegal according to the soundest principles of international jurisprudence) is adverted to in terms of strong disapprobation by three of the judges in Garrels v. Kensington (8 T. R. 230).

The whole international law upon this subject is thus summed up by Lord Stowell, in his judgment on the case of The Maria (1 Rob. 340). "The right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargos, whatever be the destinations, is an incontestable

right of the lawfully commissioned cruizers of a belligerent nation. I say, be the ships, the cargos, the destinations, what they may, because, till they are visited and searched, it does not appear what the ships, or the cargos, or the destinations are; and it is for the purpose of ascertaining these points that the necessity of this right of visitation and search exists. This right is so clear in principle, that no man can deny it who admits the legality of maritime capture; because, if you are not at liberty to ascertain by sufficient inquiry whether there is property that can be legally captured, it is impossible to capture. Even those who contend for the inadmissible rule, that free ships make free goods, must admit the exercise of this right at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception of Hubner himself, the great champion of neutral privileges. In short, no man in the least degree conversant with subjects of this kind has ever, that I know of, breathed a doubt upon it. The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as possible; but soften it as much as you can, it is still a right of force, though of lawful force-something in the nature of civil process, where force is employed, but a lawful force, which cannot lawfully be resisted. For it is a wild conceit that wherever force is used, it may be forcibly resisted; a lawful force cannot lawfully be