that it was not illegal to sail for a blockaded port, if it were intended to enquire as to the continuance of the blockade before entering. This would seem to imply that it would have been illegal to sail without such an intention.

In all these cases "illegal" must be understood as meaning illegal by our own municipal law. That what is illegal by the law of nations is illegal by our municipal law, is throughout assumed. This, we think, admits of argument, and we are inclined to the opinion that, when the question is fully considered, it will be decided that no illegality attaches to contracts contemplating a breach of blockade; and we propose to discuss this point.

It must be premised that to trade with any port which, by the municipal law of the country in which it is situated, is an open one, is a natural right. A state of war interferes with this right only to a certain definite extent. If the port is blockaded, neutral vessels cannot enter; not because it is wrong or illegal to enter, but because the blockading squadron is there to prevent their entering. If the squadron were not there, they might enter; and if they entered in such large numbers as to make it evident that the blockading force was un. able to keep up an effectual blockade,-i.e. to make it evident that it was dangerous to enter,--the blockade would be at an end, and the right of capture and confiscation would end with it. This capture and confiscation is, we contend, the only penalty to which the neutral trader who attempts to break a blockade is subject; and he is only so far subject to it as the belligerent has the power to inflict it without the assistance of any neutral sovereign, who loses his character of neutrality by aiding one belligerent to blockade the ports of the other. It is not only not the duty of a neutral sovereign to aid the belligerent in enforcing his belligerent rights, but he would be guilty (if the word may be used) of an act of hostility to the blockaded enemy if he were to do so; and it would no doubt be a very great aid, if, through his courts of law, he visited an attempt to enter the blockaded port by refusing to entertain a suit between his subjects relating to a marine adventure, if one of them had broken, or attempted to break, the blockade in the course of that adventure.

To break, or to attempt to break, a blockade is a delictum only, involving no personal penalty. The penalty is most strictly limited to the ship and cargo, and to them only in the prize-courts of the capturing belligerent, sitting in his own territory or in that of a belligerent ally. The persons of

VOL. III.

the master and crew are not answerable. They may be detained to give evidence; but they come before the court as witnesses only, not parties. But in our municipal courts the persons interested in the adventure are parties; and although the sovereign, as a neutral, is bound to look with a perfectly equal eye on both belligerents, his courts (on the hypothesis under consideration) practically enforce the blockade established by one against the other, by refusing to give effect to a contract, say of indemnity against a certain risk, because the party who has suffered the loss against which he effected an insurance has incurred that loss by attempting to break a blockade to which the sovereign was no party, and which, by the law of nations, the neutral trader might break if he could. If he offends against any law primarily, it is clearly against the law of nations; and it would be to take an unnatural and extreme view to suppose that any municipal law, other than a statute of his country, should be more than coextensive with the law of nations, and should view the act in any other light than as a delictum to which a definite penalty is attached, and which, if he escape it, leaves no taint on either person or property. No one contends that there is any English statute by which the act or intention of breaking a blockade is illegal, and the only question is, whether it is so at common law.

As a relief to a mere abstract view of the subject we will put a case. A ship is insured in the present state of things in the North American continent, from London to any portia of North America, and sails to a blockaded port-say Charleston. Let us suppose that no concealment is made, but that the particular port had not been selected at the moment of effecting the policy. We believe this to be immaterial, but we do not wish to discuss a question, in maintaining the validity of the insurance, foreign to our subject. Having arrived near Charleston the vessel is captured, and, we will suppose, condemned and confiscated. Or it succeeds in entering, but suffers damage in doing so, for which, in any ordinary case, the underwriters would be liable. In either case, the owners come upon the underwriters :-in one case, for total loss by capture; in the other, for repairs in the way of average. The underwriters plead that the loss was not occasioned by any of the perils insured against, but by the illegal act of the master; and the insured join issue on the question of illegality.

We will not pretend to say what authority the court

18 Any port means, undoubtedly, any lawful port.

would allow to the decisions already quoted, in which the illegal nature of the act of breaking a blockade was assumed, but not argued. We incline to believe that the court would not hold themselves bound by those decisions. If, however, they held by those decisions, and not on the argument that the act was illegal, we have only further to suppose that the case was carried before a court of appeal, which would review the whole case independently of the decisions of an inferior court.

Before such a court the defendants (the underwriters) would argue that the act of the master was against the law of nations, and that this law was a part of the common law of England. Forestalling a not very formidable objection, they might perhaps say that it was not illegal to embark in an adventure against the revenue-laws of another country, but that we were no parties to those laws, whilst all nations are parties to and subject to the law of nations.

The plaintiffs, admitting that the law of nations was a part of the common law, would perhaps argue much as we have done against its action extending further than the exaction of the immediate penalty. To enter a blockaded port is not an act malum in se, but only a delictum, for which the penalty had been exacted if the ship had been confiscated, and which had not been incurred if the ship had got into port, but had received damage in getting in; for the penalty is conditional on capture, and no capture had been made, and the ship was no longer liable, even by the law of nations, to any penalty. They might, perhaps, also argue that if this and most other masters had been successful in getting in, they could not properly be subject to any penalty, even in the prize-court of the belligerent, for the facts would show that there was no actual blockade. If the capture of a vessel was pro tanto evidence of a blockade, the entry of one was pro tanto evidence of there being no blockade. But admitting the law of nations to be part of the common law, it might, we think, be triumphantly argued that the parties to the law of nations were not individuals but sovereigns, or sovereign communities; and that subjects were only parties through their sovereigns. That the subjects of any sovereign in unarmed ships should break a blockade can be no casus belli between their sovereign and the belligerent power; it would not, in point of fact, be any breach of the law of nations on the part of the sovereign or of his subjects, who have a right, even by the law of nations, to get into a blockaded port if they can. The operation of the law of nations in the matter of blockades is simply to

confer on the blockading belligerent the right to search the ships of neutrals; and if he find grounds for suspecting them of an intention of breaking the blockade, to capture them, and to send them before a prize-court of his own sovereign for adjudication. The sovereign of the neutral trader is bound to stand by and permit this, and has no ground of complaint if, by the rightful sentence of the prize-court, the vessels and cargoes of his subjects are confiscated. But he is not bound to go a step further and aid the blockading belligerent, and thereby injure the blockaded enemy. The merchant who despatches goods to a blockaded port commits no act of hostility --no breach of neutrality. He acts in the ordinary exercise of his calling, in going to a good market, and has the right to take his chance of getting in. If he fails, no question is raised but one between him and the prize-court of the captors. The law of nations, as far as it relates to him, begins and leaves off with conferring on the belligerent the right, without committing an act of hostility against the neutral trader's sovereign, to capture his subject's vessel and cargo if he can, and to confiscate them if he can make out that the adventure was, not illegal, but an attempted breach of the blockade.

To supply either side with arms and other contraband of war is in the same way perfectly legal; but the law of nations confers on either belligerent the right to confiscate such merchandise in transitu. Any cargo whatever in a vessel bound from Liverpool to Charleston is in the same predicament with a cargo of rifles bound to New York. În each case the trade is perfectly legal, and the only bearing of the law of nations upon either is that the property is subject to capture and confiscation. The law of nations presses, in fact, less hardly on the goods on their way to a blockaded port than on military stores on their way to an open port of the enemy. The latter are immediately and hopelessly confiscated; the former are restored if it be clearly proved that they were innocently on board. Neither the law of nations nor the common law of this country forbid either adventure or make it illegal; but, by the law of nations, the cargo in either case may be confiscated. When it is captured, there is a total loss under the policy, which can only be avoided by the pretended illegality of the adventure; and we think we have shown that there is no illegality, properly so called, in it by the law of nations, and that even if there were, the common law cannot be invoked to assist the belligerent blockader by imposing a difficulty in the way of trade with the blockaded port, which

to some persons might be, as it ought to be, more formidable than the risk of capture.

If adventures of the nature in question were illegal, it would also follow that persons combining to accomplish them would be guilty of conspiracy, and indictable for that offence. Thus the owner who undertook to run the blockade of Charleston or to convey rifles to New York, the merchant who consigned the goods, and the underwriter who, knowing their destination, insured them, might be subjected to fine and imprisonment. And, if by the common law such adventures are illegal, the Federal Government might as properly call on our Government to take such a step as to enforce the Foreign Enlistment Act.

We think that the plaintiffs would have the best of the argument, and that the decision of the court must maintain that the neutral trader may lawfully run the risk of capture if he likes, and that the law of nations simply arms the belligerent with the right to capture if he can, and creates neither obligation nor offence as against neutrals.

2. Contraband of war.-All commerce of neutrals with an open port of a belligerent is lawful except in contraband of war.

The list of articles which are contraband of war is necessarily variable. Arms and gunpowder are always contraband; sail-cloth and timber for ship-building are by some authors considered contraband if sent to a port of naval equipment, but not if sent to a commercial port. But there is much difference of opinion as to these and other articles ancipitis

usus.

Grotius and Vattel are in the main agreed not only that arms and munitions of war are contraband, but that the circumstances of the time may make articles ancipitis usus contraband also. Bynkershoek would limit contraband to arms, munitions of war, and military persons; but he nevertheless admits that materials for ship-building, and even, in some cases, provisions may become so.

The different opinions which have been maintained or enforced on the question of contraband would seem to express rather the tendency of writers or governments to extend or contract the actual admitted list of contraband, than to formulate any essentially different principle by which to test the quality of merchandise as free or contraband. If we might venture to enunciate a rule most in accordance with the great