As we have seen, there is not complete unanimity touching the propriety of classifying such an objectionable traffic as an offence against the law of nations, and the penalty of confiscation is not enforced with the strict severity observed in some other cases. Thus, in the leading case of The Immanuel (z), in 1799, though the ship and cargo were of the same ownership, the cargo only was condemned. The Immanuel, a Hamburg ship, whilst on a voyage from Hamburg to St. Domingo, a French possession, shipped some goods at Bordeaux, and Sir W. Scott, in condemning these goods, intimated that, until better instructed by the judg ment of a superior tribunal, he would hold himself not to be authorized to restore goods, although neutral property, passing in direct voyage between the mother country of the enemy and its colonies. The Hamburg goods, on the other hand, were restored; and also the ship, but without freight or expenses. The learned judge, in restoring the ship, remarked that if the goods had been contraband, the ship would have been liable to confiscation, but that this was a case where a neutral might more easily misapprehend his own rights, and where he acted without the notice afforded by former decisions on the subject. In The Johanna Tholen (a), however, the King's Advocate, in his reply, laid down a clear distinction between cases of open and undisguised traffic, and cases attended by concealment of purpose and falsification of documents. "In such cases, the course which this Court has pursued in various instances has been to resort to the more strict principle of former times, and to hold the vessel herself subject to confiscation." Cases on this point are The Edward (b), The Hoffnung (c), The Ebenezer (d), The George

(z) 2 Rob. 186.

(a) Supra.
(b) 4 Rob. 68.

(c) 2 Rob. 162.

(d) 6 Rob. 250. See also The Carolina, 3 Rob. 75; and The Mars, 6 Rob. 79.

Thomas (e), and The Volant (f). And application of the same principle involved, as we have just seen, the condemnation of the brig Ernstern in the United States Courts.

Insurance.

The engaging in the enemy's privileged trade constitutes a breach of neutral warranty. Thus in Berens v. Rucker (g), Lord Mansfield intimated that if a neutral vessel traded to a French colony with all the privileges of a French vessel, it must be deemed to have been adopted and naturalized, and to be liable to condemnation as an enemy's ship. "There can be no doubt," says Arnould (h), "that an insurance effected in this country, being at the time a belligerent power, to protect neutral trading of this exceptional character, would be treated as wholly illegal and void by our Courts, on the ground that 'trading to an enemy's colony, with all the privileges of an enemy's ship, causes a neutral vessel to be regarded as an enemy's ship, and renders her lawful prize."" If illegal trading be carried on by the master without the authority of his owners, and the vessel be confiscated in consequence, the circumstances may be such that the loss may be attributed to barratry (i).

The last of the Belligerent Rights against Neutrals to be considered is that of Pre-emption.

(e) 3 Rob. 233.

(f) 4 Rob. App.; 1 Act. 171.

(g) 1 W. Black. 314. See also The Immanuel, and The Anna Catharina, supra, and The Dree Gebroeders, 4 Rob. 232.

(h) Mar. Insce. 5th ed. 701.

(i) Arnould's Insce. 5th ed. 763.

PRE-EMPTION.

66

The belligerent right to pre-empt or requisition" the property of neutrals may be resorted to either as a modified form of the harsher right of confiscation, or on the principle that necessity knows no law, and that consequently in a moment of peril the paramount right of self-preservation justifies the appropriation of whatever comes ready to hand either as a weapon of offence or a means of defence.

Under the head Contraband of War (k), the articles generally subject to pre-emption in lieu of confiscation, and the circumstances in which the right is to be applied, have already been considered. It may, however, be convenient for present purposes to briefly recapitulate them. Certain articles, then, of equivocal nature, that is, equally applicable either to peaceful or to warlike uses, have in bygone days, in lieu of the confiscation to which the latter quality condemned them, been sometimes placed on an exceptional footing.

Chief amongst these articles are provisions. There seems to be no definite rule governing the circumstances in which such goods are liable to pre-emption, and the subject has from time to time been by turns hotly debated and regulated by international treaty. This will sufficiently appear on reference to the subject of Contraband generally, pp. 156-200. Broadly stated, provisions in a made-up or manufactured state, ready for consumption and suitable for naval or military purposes, have been regarded as contraband if destined for a naval or military port of the enemy, or if presum

(k) Pages 173-179, supra.

:

ably intended for warlike purposes. Foodstuffs not made up ready for consumption, such as grain and flour, and provisions generally, destined for non-military ports of the enemy not invested, have been by some held to be subject to preemption, on the ground that such goods, though not subject to condemnation as contraband, are nevertheless objectionable as tending to defeat the possibility of starving the enemy into submission and that it is therefore permissible either to preempt them or to order them off from the enemy coast. Naval stores apparently intended for the enemy's warlike uses have been regarded as contraband and subject to condemnation accordingly, but pitch and tar, when the produce of the country exporting them, were, in Sir W. Scott's time, subjected to the milder right of pre-emption. The reason for this relaxation of the stricter belligerent right was that these articles formed such a considerable part of the ordinary export trade of the countries producing them that their wholesale confiscation would have exposed such neutral powers to exceptional injury. The treaty of commerce arranged between this country and the United States in 1796 provided, as regards provisions and other articles which, though not generally contraband, may be so regarded, that whenever these should by the existing law of nations be regarded and seized as contraband, they should not be confiscated, but the masters or owners of the vessels should be paid the full value of the articles, with a reasonable mercantile profit, plus freight and demurrage. The reason expressly given for this stipulation is that it is "expedient to provide against the inconveniences and misunderstandings" likely to arise from the difficulty of agreeing on the precise cases in which such goods become contraband. But to entitle a neutral owner to the benefit of the milder rule of pre-emption it has always been necessary that he shall have acted strictly bonâ fide (1). As to

(1) The Sarah Christina, 1 Rob. 241.

the price to be paid by the pre-emptors, it is to be based on the principle of reasonable compensation. Although famine prices may be prevailing at the port of the vessel's intended destination, the belligerent captor is not to be held liable to indemnify on that basis (m). The owner is to receive a reasonable indemnification and a fair profit, having regard to the original cost and expenses, and the captor is under no obligation to take these cargoes on the terms on which the enemy would be content to purchase them; and the same principle is to be observed in awarding costs and damages against captors adjudged to have made a wrongful seizure (n). In The Zacheman (o), where a cargo of tar from Sweden to Rochefort had been brought in for inquiry whether it was intended for government purposes or not, and with a view to exercise of the right of pre-emption (substituted by treaty with Sweden for that of confiscation), the British Government ultimately refused to purchase. On this the neutral owners claimed damages for the delay, and Sir W. Scott decided that three weeks' demurrage should be paid by the government, observing that the Admiralty must understand that it was due to the owners that such matters should not be kept subject to long negotiation, but that a conclusion must be come to promptly. Naval stores laden on neutral vessels before declaration of hostilities, and intended for an enemy port, are liable to be seized in port of loading and pre-empted (p).

Section No. 38, in the Naval Prize Act, 1864, deals with the subject of pre-emption as follows:

"Where a ship of a foreign nation passing the seas laden with naval or victualling stores intended to be

(p) The Maria Magdalena, Hay & Marriott, 250. Vide also The Vryheid, ibid. 188; and Mar. Warfare, pp. 253, 254.