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ciple, unless it be conceded also by the enemy of the bellige rent to the same neutral flag.a

But, whatever may be the utility or reasonableness of the neutral claim, under such a qualification, I should apprehend the belligerent right to be no longer an open question; and that the authority and usage on which that right rests in Europe, and the long, explicit and authoritative admission of it by this country, have concluded us from making it a subject of controversy; and that we are bound, in truth and justice, to submit to its regular exercise, in every case, and with every belligerent power who does not freely renounce it.

It has been a matter of discussion, whether the captor of the enemy's vessel be entitled to freight from the owner of the neutral goods found on board, and restored. Under certain circumstances, the captor has been considered to be entitled to freight, even though the goods were carried to the claimant's own country, and restored: and he clearly is entitled to freight, if he performs the voyage, and carries the goods to the port of original destination. In no other case is freight due to the captor; and the doctrine of pro rata freight is entirely rejected, because it would involve a prize court in a labyrinth of minute inquiries and considerations, in the endeavour to ascertain, in every case, the balance of advantage or disadvantage, which an interruption and loss of the origi nal voyage, by capture, might have produced to the owner of the goods.b

*132

*In the case of the Nereide, the Supreme Court of the United States carried the principle of immunity of neutral property on board an enemy's vessel, to the extent of allowing it to be laden on board an armed belligerent cruiser; and it was held, that the goods did not lose their neutral character, not even in consequence of resistance made by the armed vessel, provided the neutral did not aid in such armament or resistance, notwithstanding he had chartered the

Letter of Mr. Adams, Secretary of State, to Mr. Anderson, 27th May, 1823. President's Message to the Senate, of 26th December, 1825, and to the House of Representatives, March 15th, 1826.

b Bynk. Q. J. Pub. b. 1. c. 13. The Fortuna, 4 Rob. Rep. 278. The Diana, 5 Rob. Rep. 67. Vrow Anna Catharina, 6 Rob. Rep. 269.

9 Cranch's Rep. 398.

whole vessel, and was on board at the time of the resistance. The act of arming was the act of the belligerent party, and the neutral goods did not contribute to the armament, further than the freight, which would be paid if the vessel was unarmed, and neither the goods nor the neutral owner were chargeable for the hostile acts of the belligerent vessel, if the neutral took no part in the resistance. A contemporary decision of an opposite character, on the same point, was made by the English high court of admiralty, in the case of the Fannya and it was there observed, that a neutral subject was at liberty to put his goods on board the merchant vessel of a belligerent; but if he placed them on board an armed belligerent ship, he showed an intention to resist visitation and search, by means of the association, and, so far as he does this, he was presumed to adhere to the enemy, and to withdraw himself from his protection of neutrality. If a neutral chooses to take the protection of a hostile force, instead of his own neutral character, he must take (it was observed) the inconvenience with the convenience, and his property would, upon just and sound principles, be liable to condemnation along with the belligerent vessel.

The question decided in the case of the Nereide is a very important one in prize law, and of infinite importance in its practical results; and it is to be regretted that the decisions of two courts of the highest character, on such a point, *should have been in direct contradiction to *133 each other. The same point afterwards arose, and was again argued, and the former decision repeated in the case of the Atalanta. It was observed, in this latter case, that the rule with us was correct in principle, and the most liberal and honourable to the jurisprudence of this country. The question may, therefore, be considered here as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal on this side of the Atlantic.

a 1 Dodson's Adm. Rep. 443.

b 3 Wheaton, 409.

LECTURE VII.

OF RESTRICTIONS UPON NEUTRAL TRADE.

Contraband of war.

THE principal restriction which the law of nations imposes on the trade of neutrals, is the prohibition to furnish the belligerent parties with warlike stores and other articles which are directly auxiliary to warlike purposes. Such goods are denominated contraband of war; but in the attempt to define them the authorities vary, or are deficient in precision, and the subject has long been a fruitful source of dispute between neutral and belligerent nations.

In the time of Grotius, some persons contended for the rigour of war, and others for the freedom of commerce. As neutral nations are willing to seize the opportunity which war presents, of becoming carriers for the belligerent powers, it is natural that they should desire to diminish the list of contraband as much as possible. Grotius distinguishes between things which are useful only in war, as arms and ammunition, and things which serve merely for pleasure, and things which are of a mixed nature, and useful both in peace and war. He agrees with other writers in prohibiting neutrals from carrying articles of the first kind to the enemy, as well as in permitting the second kind to be carried. As to articles of the third class, which are of indiscriminate use in peace and war, as money, provisions, ships and naval stores, he says, that they are sometimes lawful articles of neu

tral commerce, and sometimes not; and the question *136 will depend upon circumstances existing *at the time. They would be contraband if carried to a besieged town, camp or port. In a naval war, it is admitted, that ships and materials for ships, become contraband, and horses and

a B. 3. c. 1. sec. 5.

saddles may be included.a Vattel speaks with some want of precision, and only says, in general terms, that commodities, particularly used in war, are contraband, such as arms, military and naval stores, timber, horses, and even provisions, in certain junctures, when there are hopes of reducing the enemy by famine. Locennius,e and some other authorities referred to by Valin, consider provisions as generally contraband; but Valin and Pothier insist that they are not so, either by the law of France or the common law of nations, unless carried to besieged or blockaded places. The marine ordinance of Louis XIV.e included horses, and their equipage, transported for military service, within the list of contraband, because they were necessary to war equipments; and this is, doubtless, the general rule. They are included in the restricted list of contraband articles mentioned in the treaty between the United States and Colombia, in 1825. Valin says, that naval stores have been regarded as contraband from the beginning of the last century, and the English prize law is very explicit on this point. Naval stores, and materials for ship-building, and even corn, grain, and victuals of all sorts, going to the dominions of the enemy, were declared contraband by an ordinance of Charles I. in 1626. Sail cloth is now held to be universally contraband, even on a destination to ports of mere mercantile naval equipment;s and in

the case of the Maria, it was held, that *tar, pitch and *137 hemp, and whatever other materials went to the construction and equipment of vessels of war, were contraband by the modern law of nations; though formerly, when the hostilities of Europe were less naval than at the present day, they were of a disputable nature. The executive government of this country has frequently conceded, that the materials for the building, equipment, and armament of ships of war, as

a

Rutherforth's Inst. b. 1. c. 9.

b B. 3. c. 7. sec. 112.

De Jure Maritimo, lib. 1. c. 4. note 9.

d Valin's Com. tome ii. p. 264. Pothier de Propriété, No. 104.

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a

timber and naval stores, were contraband. But it does not seem that ship timber is, in se, in all cases, to be considered a contraband article, though destined to an enemy's port. In the case of the Austrian vessel, Il Volante, captured by the French privateer L'Etoile de Bonaparte, and which was carrying ship timber to Messina, an enemy's port, it was held, by the council of prizes at Paris, in 1807, upon the opinion of the advocate-general, M. Collet Descotils, that the ship timber in that case was not contraband of war, it being ship timber of an ordinary character, and not exclusively applicable to the building of ships of war.b

Questions of contraband were much discussed during the continuance of our neutral character, in the furious war between England and France, commencing in 1793, and we professed to be governed by the modern usage of nations on this point. The national convention of France, on the 9th of May, 1793, decreed, that neutral vessels laden with provisions, destined to an enemy's port, should be arrested and carried into France; and one of the earliest acts of *138 England, in that war,d was to detain all neutral *ves

sels going to France, and laden with corn, meal or flour. It was insisted, on the part of England,e that, by the law of nations, all provisions were to be considered as contraband, in the case where the depriving the enemy of those supplies was one of the means employed to reduce him to reasonable terms of peace; and that the actual situation of France was such, as to lead to that mode of distressing her, inasmuch as she had armed almost the whole labouring class of her people, for the purpose of commencing and supporting hostilities against all the governments of Europe. This claim on the part of England was promptly and perseveringly resisted by the United States; and they contended, that corn, flour and

Mr. Randolph's Letter to M. Adet, July 6th, 1795. Mr. Pickering's Letter to Mr. Pinckney, January 16th, 1797. Letter of Messrs. Pinckney, Marshall and Gerry, to the French Minister, January 27th, 1798.

b Repertoire universel et raisonne de Jurisprudence, par M. Merlin, tome ix. tit. Prise Maritime, sec. 3. art. 3.

• President's Proclamation of Neutrality, April 22d, 1793.

d Instructions of 8th June, 1793.

• Mr. Hammond's Letter to Mr. Jefferson, September 12th, 1793, and his Letter to Mr. Randolph, April 11th, 1794.

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