text-writers and with judicial decisions, it would be that what is directly and immediately useful to belligerents in carrying on war, and is not ordinarily useful in peace,-what is evidently meant for soldiers and not for civilians,-is contraband; and that what is an ordinary article of utility and consumption to a peaceful community, and is only useful to soldiers in common with others, as food, clothing, fuel, and materials for building or manufacture,-is free, or that at most, and in very exceptional circumstances, the belligerent has only the right of preemption over it.

Any right of visit, seizure, and confiscation, which accrues to belligerents as against neutrals is founded on the principle that the belligerents may see to the observance of neutrality by the subjects of a neutral sovereign, either within the limits of their own territorial jurisdiction, or outside the territorial sovereignty of the sovereign, and other neutral powers, i.e. on the high seas. It is clearly a taking part in hostilities to put into the hands of either party a warlike weapon, a ship-of-war, or warlike stores. This involves, however, no offence on the part of a neutral trader; because he is supposed to do it only in the pursuit of trade, and in the ordinary spirit of his avocation, and not with a hostile animus. His object as a trader is presumed to be to make a good bargain of his commodities by carrying them to a good market. If a sovereign were to supply either party with arms, it would be an undoubted breach of neutrality, involving a hostile animus.

We might perhaps express the relations between neutral traders and belligerents by supposing that the law of nations implies a contract on the part of the former not to participate in hostilities by furnishing military aid to either party, and limiting the right of vindication to such measures of redress as the belligerent may be able to apply on the high seas,— the common property of all nations, or in his own territory by virtue of his own local sovereignty, but without usurping any right of sovereignty over persons-the subjects of other sovereigns-further than is necessary and allowed for the purpose of ascertaining whether the delictum has been committed, or, as we are now putting it, whether the contract has been broken.

Now the supply of arms to an open port of the enemy is direct military aid. The supply of merchandise to a blockaded port tends directly to defeat the object of the belligerent in subjecting the port to a blockade; it is like supplying a besieged place with provisions when cutting-off its supply

of food is one of the lawful means employed for its reduc

tion.

But the aid in either case must be direct. No doubt all commercial intercourse with belligerents is some aid to them in carrying on the war; and the enemy may, in point of fact, be better aided in carrying on the war by the prosecution of a perfectly unimpeachable trade than by being supplied with a cargo of rifles. But since no belligerent will himself give up all neutral trade, he cannot impose abstinence from it on neutrals; even if, in a particular case, he were ready to do this, he cannot impose a new law on neutrals outside the established implied contract, in the interpretation of which usage is a material element. Any supplies or aid furnished otherwise than by sea form no portion of our subject; but it is a principle of vast importance that the aid furnished by sea should be direct. Thus, suppose it to be certain that a great trade existed in smuggling arms from an open port of the United States to the Confederate States, and suppose that the value and importance of this supply were as great as possible, arms consigned to a neutral merchant at the United States port from which this smuggling was carried on could not be seized on the high seas, and confiscated in transitu to the open port of the United States. By a municipal law, arms might be made contraband of entry, and a cargo seized on arrival; and if such were the legal penalty, they might be forfeited, but they could not be made contraband of war, and seized on the high seas.

3. Enemies' property at sea.-There is no doubt at all that a belligerent has the right to seize what may reasonably be suspected to be enemies' property on the high seas, and to confiscate it by the sentence of his prize-court: and this under whatever flag it may be found.

The Maritime Declaration of 1856 modifies this right between the parties to that declaration, supposing it to have been accepted by the sovereigns represented by the plenipotentiaries. By the 2d Art. it is declared that "the neutral flag covers enemy's goods, with the exception of contraband of war."

Those who contend for the universal application of this rule usually do so upon grounds which may very properly be urged as available for the foundation of special international engagements or treaties, but which are inadmissible as means of determining the law of nations. They speak of its inexpediency as injuring the commerce of the belligerent who

avails himself of his rights; and they allege the inviolability of private property on land as an admitted principle with which capture at sea is inconsistent. But all war inflicts great injury on the belligerent, which he sustains with the object of inflicting still greater injury on the enemy; and the belligerent, not the judge of the law of nations, is the judge of how much inconvenience or injury he will put up with to attain his object. The sovereign who exposes the lives of his subjects may well also incur some risk of commercial loss; and the trader who suffers will loyally bear his share of that burden of war which cannot be equally shared by the whole community.

The inviolability of the property of the enemy on land may be conceded, although as a principle we cannot find it in the law of nations, without admitting any inconsistency between the practice on land and at sea. In the former case the property is inactive, and as it were neutral; in the latter it is sent out on an active mission of profit, and passes out of the jurisdiction of the sovereign to whom the trader is subject. It becomes in fact aggressive, and may well be seized on the high seas, when it would have been respected at home.

We see, then, that all access to blockaded ports is by the law of nations illegal; and so, that all goods on their way to such a port are to coin a word-contraband of blockade. There is no occasion to enquire into the nature of the goods; all goods are shut out. We see also that some goods to an open port of a belligerent are contraband of war; that some other goods may be enemy's property; but that all other goods are free.

Thus, with respect to the free intercourse between neutrals and the enemy, the law of nations confers on the belligerent the power:-(1) of blockading his ports against the entry and exit of all trading vessels and all cargoes; (2) of preventing the entry of contraband of war into those ports of the enemy which are open and accessible to all other merchandise because not blockaded; (3) of seizing the property of the enemy on the high seas.

But the law of nations gives to the belligerent no right of interference with the commerce between neutrals and neutrals. It confers and limits the right of interference in the trade of neutrals with the enemy, as has been laid down; but it confers no right of interference whatever with the trade of neutrals with each other, or between neutral ports; nor between the open port of an enemy and a neutral port; except

inasmuch as the necessary means of exercising belligerent rights may indirectly interfere with the perfectly unobstructed exercise of the commercial rights of neutrals.

4. The right of visitation, search, and capture.-The right of a belligerent to visit neutral merchant-ships, and to search them, so as to ascertain their nationality, destination, and, if their destination is to an open port of the enemy, the nature of their cargoes, is undoubted. If the result of the search is to fix on them the suspicion of being bound to a blockaded port of the enemy, of being bound to an open port of the enemy with contraband of war, or of having enemy's property on board although bound to a neutral port, the belligerent acquires the further right of capture, and must, if it be possible, send the vessel and cargo at once before a prizecourt to determine the questions raised.

It has been pretended that this belligerent right ceases in the presence of a ship-of-war of the neutral sovereign acting as convoy of the vessel of his subject. This case of exception was tried in the case of the Maria19 (1799), and it was decided, so far as the judgment of a prize-court can decide a principle, that the convoy of a vessel-of-war of a neutral Sovereign did not protect the vessel of his subject from any exercise of the belligerent rights of another sovereign who was a belligerent.

That, in all ordinary cases, the resistance of a neutral trader to visitation, search, or capture, involves capture and condemnation, was not disputed in this case, the leading facts of which were as follows: Commodore Lawford fell in, in the British Channel, with a fleet of Swedish merchantmen, which, as it subsequently appeared, were laden with contraband of war, if destined for an open hostile port. These vessels were under the convoy of a Swedish frigate whose commander was instructed-and he communicated his instructions to Commodore Lawford-to resist by force any attempt to visit and search the vessels under convoy. Commodore Lawford applied to the Admiralty for instructions, and was ordered to capture the vessels, except the frigate, which he did, but not without acts of resistance on the part of both frigate and merchantmen; and it was for this resistance that the latter were brought before the Court of Admiralty, sitting as a court of prize, and condemned.

This case is so high an authority, that we shall not hesi tate to give the more important points of Sir Wm. Scott's

19 1 Rob. 340.

All

judgment in his own words. After reciting the facts, he says: "1. That the right of visiting and searching merchantships upon the high seas, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destinations what they may, becanse, till they are visited and searched, it does not appear what the ships, or the cargoes, 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 enquiry whether there is property that can legally be captured, it is impossible to capture... 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 preexisting, and merely regulate the exercise of it. writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. . . . 2d. That the authority of the sovereign of the neutral country being interposed in any manner of mere force cannot legally vary the rights of a lawfully commissioned belligerent cruiser; I say legally, because what may be given, or be fit to be given, in the administration of this species of law, to considerations of comity or of national policy, are views of the matter which, sitting in this Court, I have no right to entertain. . . . Two sovereigns may unquestionably agree, if they think fit (as in some instances they have agreed), by special covenant, that the presence of one of their armed ships along with their merchantships shall be mutually understood to imply that nothing is to be found in that convoy of merchant-ships inconsistent with amity or neutrality; and if they consent to accept this pledge, no third party has a right to quarrel with it, any more than with any other pledge which they may agree mutually to accept. But surely no sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independent of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it. . . . 3d. That the penalty for the violent contravention of this right is the confiscation of the property so

It is made an article of treaty between America and Holland, an. 1782, article 10. Mart. Tr. vol. ii. p. 255.