intended to be sold at the neutral port, and that they were therefore not contraband, and were wrongfully condemned as such. "The allegation," said the Court, "that the goods were shipped for the purpose of being sent to an enemy's port is an allegation of a mental process only. We are not to assume either that the plaintiff had made any contract or provided any means for the further transmission of the goods into the enemy's state, or that the shipment to Matamoras was an unreal pretence. If the goods were in a course of transmission, not to Matamoras, but to an enemy's port, the voyage would not be covered by the policy.” In the view of the Court (g), the assured must be taken to have known of the good demand at Matamoras, and to have shipped to that port in the expectation of a profitable sale there to purchasers on behalf of the Confederate States; but that a price was the sole object in view, and that he was indifferent whether the sale were to Confederate or Federal purchasers; and that in a neutral territory he might lawfully sell to either: therefore that the plea was bad (as to intention); for, there being no warranty against contraband, it was necessary to show that the goods were contraband of war, and, as such, liable to be seized by the Federal Government: the averment of the intention that the goods should go to the Confederate States did not indicate that the goods were bound to go there, and therefore that the plea (i. e., in effect, of concealment) was insufficient. (It was considered by the Court that the plea of contraband of war was intended to be a defence on the ground of concealment by the plaintiff of a material fact.) In the opinion of the Court the seizure by the Federal Government was, on the facts, so far as concerned the plaintiff's property, unlawful. But the insurance was against capture, lawful and unlawful, and the defendant, said the Court, in order to discharge himself, must show concealment by the assured. The further allegation that the ship was carrying goods and papers which involved liability to seizure, was held to be immaterial as a ground of defence; for these goods were not alleged to be plaintiff's goods, and the plaintiff was not shown to be responsible for the ship's papers, nor for any other goods than his own. (g) So understood in Seymour's case, infra, 41 L. J. C. P. 193. This decision was, as has been said, arrived at in 1864-5, and the American judgment in The Peterhoff, on appeal to the Supreme Court in 1866, amply establishes the justice of the conclusions of the British Court in Hobbs's case. Further, it goes to show that there is no difference of opinion between the Courts of this country and of the United States as to the principles by which the question of alleged contraband is to be tested. That the District Court had wrongly interpreted the facts in The Peterhoff case appears from the subsequent judgment of the Supreme Court (h). Said the Court: "The evidence in the record satisfies us that the voyage of The Peterhoff was not simulated. . . . Nor have we been able to find anything in the record which fairly warrants a belief that the cargo had any other direct destination. . . . We dismiss, therefore, from consideration the claim, suggested rather than urged, on behalf of the Government, that the ship and cargo, both or either, were destined for the blockaded coast." With respect to the permissive or innocent goods, the Court thought it a "fair conclusion from the whole evidence, that the cargo was intended to be disposed of in Mexico or Texas as might be found most convenient and profitable to the owners and consignees ;" and that the destination in this case became specially important only in connexion with the question of the goods of a contraband nature. With respect to the equivocal goods, they had not been proved to have been actually destined to belligerent use, and they could not therefore be treated as contraband. The articles held to be contraband were artillery harness, military boots, and regulation blankets. These, said the Court, came fairly within the description of goods primarily and ordinarily used for military purposes in time of war, and made part of the necessary equipment of an army. If really intended for sale in the market at Matamoras, even these goods would have been free from liability, but all the circumstances indicated that these articles at least were destined for the use of the rebel forces then occupying Brownsville and other places in the vicinity, notwithstanding that they were primarily destined for Matamoras. This portion of the cargo was therefore con (h) 5 Wall. 28. demned, and with it any part of the cargo belonging to the owner of the same goods. As regards the ship, although the conduct of the master had been inconsistent with the frankness and good faith due from neutrals in such circumstances, yet, in face of the fact of the almost certain destination of the ship to a neutral port with a cargo for the most part neutral in character and destination, the Court decreed restitution on payment of costs and expenses. This judgment, both for its searching and impartial examination of the facts and for its able and exhaustive review of the law, well repays perusal. The final judgment of the United States Court in The Peterhoff and of the British Courts in Hobbs v. Henning must be considered to set at rest, once and for all, the principles to be followed in deciding questions of contraband of war: as to which principles there would appear to be no difference of opinion between the government of this country and that of the United States. In Seymour v. London and Provincial Insurance Co. (i), an insurance had been effected in London on goods per Peterhoff from London to Matamoras, "Warranted no contraband of war." The goods having been confiscated as above stated, the underwriters repudiated liability on the ground of misrepresentation and breach of warranty. This refusal was justified by the Court, by which it was held that the goods were intended from the beginning to go to Matamoras, not to be disposed of there as part of the merchandise of such port, but for the purpose of being transhipped across the Rio Grande, to be delivered to the Confederate Government under contract. This decision, which was on all fours with the finding of the American Court, was subsequently confirmed, the Court thinking that the special facts of the particular case clearly showed, first, that the artillery harness was destined to a belligerent state for belligerent purposes, and so, as was admitted, "in such case contraband"; and, secondly, that there had been a concealment of this material fact (k). (i) 41 L. J. C. P. 193. As the ownership of goods partly contraband and partly permissive taints the whole with the vice of contraband, in the case of an insurance on the permissive portion of such mixed goods, or on a neutral ship carrying contraband goods belonging to her owner, the underwriter must be either explicitly or impliedly informed of the circumstances. Otherwise, as intimated above, the insurance may be held void on the ground of concealment (7). But it is to be deduced from Hobbs's case, supra, that the circumstance that a Court of the alien captors has condemned property as contraband of war will not necessarily debar the assured from pleading in the Courts of this country that the condemnation was bad under the law of nations; and that it is not de facto a defence to a claim on the underwriters under a policy warranting no contraband (m). The carriage by neutrals to a belligerent of all articles subservient to warlike uses being by the common law of nations attended by the liability to confiscation of the obnoxious cargo, it naturally follows that the transport of the enemy's troops and conveyance of his despatches will be at least as strictly prohibited. This subject we will now consider. (7) Arnould, 6th ed. p. 636, reads as follows: "As carrying contraband articles entails the confiscation of all property on board the neutral ship belonging to the same owner, it would clearly amount to a breach of the warranty of neutrality as to such property. With regard to the ship and such portion of the cargo as belongs to different owners, it will only produce such a result when the circumstances of criminality are such as involve both ship and cargo in one common penalty; as where they show that the shipowner and the other freighters were cognizant of, and concerned in, the contraband trading." But seeing that contraband of war may be directly shipped and insured without being so described in the policy, and yet without violating the neutral warranty, it is by no means obvious why any violation of neutral warranty should ensue in such circumstances as the above. Vide sub War Warranties, p. 387, infra. (m) For examples of clauses expressly excluding risks arising from carriage of contraband of war, vide p. 124, supra. CAPTURE AND CONFISCATION OF PROPERTY ENGAGED IN CARRYING DESPATCHES OR MILITARY PERSONS OF THE ENEMY. The transport of hostile despatches, or of military persons in the service of the enemy, is regarded as a heinous offence against the law of nations. The injury likely to result from the carriage of a cargo of contraband articles is necessarily of a limited nature; but the transport of hostile despatches may affect perhaps the whole plan of campaign: while the presence of military persons with the forces of the enemy may indefinitely increase his powers of conducting warlike operations. What are Despatches.-"The carriage of despatches," said Sir W. Scott, in The Atalanta (a), “is a service which, in whatever degree it exists, can only be considered in one character—as an act of the most noxious and hostile nature." "Despatches," observed the same learned judge, in The Caroline (b)," are all official communications of official persons on the public affairs of the government. The comparative importance of the particular papers," his lordship added, "is immaterial, since the Court will not construct a scale of relative importance, which, in fact, it has not the means of doing with any degree of accuracy or with satisfaction to itself; it is sufficient that they relate to the public business of the enemy, be it great or small. . . . . The true |