"2. If lawful, whether the assured were bound to disclose to the defendant the fact, that part of the cargo was contraband of war.

"On the first point, I am of opinion, that the contraband goods were lawful goods, and that whatever is not prohibited to be exported, by the positive law of the country, is lawful. It may be said, that the law of nations is part of the municipal law of the land, and that by that law (and which, so far as it concerns the present question, is expressly incorporated into our treaty of commerce with Great Britain) contraband trade is prohibited to neutrals, and, consequently, unlawful. This reasoning is not destitute of force, but the fact is, that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the belligerent powers; and this it does from necessity. A neutral nation has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade; and yet, at the same time, from the Jaw of necessity, as Vattel observes, the powers at war have a right to seize and confiscate the contraband goods, and this they may do from the principle of self-defence. The right of the hostile power to seize, this same very moral and correct writer continues to observe, does not destroy the right of the neutral to transport. They are rights which may, at times, reciprocally clash and injure each other. But this collision is the effect of inevitable necessity, and the neutral has no just cause to complain. A trade by a neutral in articles contraband of war is, therefore, a lawful trade, though a trade, from necessity, subject to inconvenience and loss."

EX-PARTE CHAVASSE, IN RE GRAZEBROOK.

COURT OF APPEAL IN BANKRUPTCY, 1865.

(34 L. J. n. s., Bankruptcy, 17.)

Trade in contraband articles by a neutral is lawful.

Chavasse and Grazebrook went into partnership in the furnishing of contraband articles to the Confederacy. Both parties became bankrupt, and the assignees of Chavasse presented a petition to have the proceeds of these transactions apportioned, Chavasse never having received anything from them. This petition was dismissed with costs on the ground of the illegality of the contract. An appeal was allowed, the Lord Chancellor considering that there was a valid partnership. He cites the Santissima Trinidad (7 Wheat., 340), and quotes the following passage to be a very correct representa

tion of the present state of the law of England also :

"There is noth

ing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation."

He also said: "But this commerce, which was perfectly lawful for the neutral with either belligerent country before the war, is not made by the war unlawful or capable of being prohibited by both or either of the belligerents; and all that international law does is to subject the neutral merchant who transports the contraband of war to the risk of having his ship and cargo captured and condemned by the belligerent power for whose enemy the contraband is destined." 1

SECTION 45.-DESPATCHES AND PERSONS AS CONTRABAND.

THE "ATALANTA.”

HIGH COURT OF ADMIRALTY, 1808.

(6 C. Robinson, 440.)

Carrying dispatches from the Governor of the Isle of France to the Minister of Marine, at Paris, is cause of confiscation of the ship.

This was a case of a Bremen ship and cargo, captured on a voyage from Batavia to Bremen, on the 14th of July, 1797, having come last from the Isle of France; where a packet containing dis patches from the Government of the Isle of France to the Minister of Marine, at Paris, was taken on board by the master and one of the supercargoes, and was afterwards found concealed in the possession of the second supercargo, under circumstances detailed in the judgment.

Extract from judgment,-Sir W. SCOTT:-

"The question then is, what are the legal consequences attaching on such a criminal act?-for that it is criminal and most noxious is scarcely denied. What might be the consequences of a simple transmission of dispatches, I am not called upon by the necessities of the present case to decide, because I have already pronounced this to be a fraudulent case. That the simple carrying of dispatches, between

The only penalty by the modern law of nations for carrying contraband is the loss of freight and expenses. The Ringende Jacob, 1 C. Rob., 90: the Sarah Christina, Ib., 242, and others.

the colonies and the mother country of the enemy, is a service highly injurious to the other Belligerent, is most obvious. In the present state of the world, in the hostilities of European powers, it is an object of great importance to preserve the connection between the mother country and her colonies; and to interrupt that connection, on the part of the other Belligerent, is one of the most energetic operations of war. The importance of keeping up that connection, for the concentration of troops, and for various military purposes, is manifest; and I may add, for the supply of civil assistance, also, and support, because the infliction of civil distress, for the purpose of compelling a surrender, forms no inconsiderable part of the operations of war. It is not to be argued, therefore, that the importance of these dispatches might relate only to the civil wants of the colony, and that it is necessary to shew a military tendency; because the object of compelling a surrender being a measure of war, whatever is conducive to that event must also be considered in the contemplation of law, as an object of hostility, although not produced by operations strictly military. How is this intercourse with the mother country kept up, in time of peace? by ships of war or by packets in the service of the state. If a war intervenes and the other Belligerent prevails to interrupt that communication, any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does, in fact, place himself in the service of the enemy-state, and is justly to be considered in that character. Nor let it be supposed, that it is an act of light and casual importance. The consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be conveyed. The carrying of two or three cargoes of stores is necessarily an assistance of a limited nature; but in the transmission of dispatches may be conveyed the entire plan of a campaign, that may defeat all the projects of the other Belligerent in that quarter of the world. It is true, as it has been said, that one ball might take off a Charles the XIIth, and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that in the contemplation of human events it is a sort of evanescent quantity of which no account is taken; and the practice has been accordingly, that it is in considerable quantities only that the offence of contraband is contemplated. The case of dispatches is very dif ferent; it is impossible to limit a letter to so small a size, as not to be capable of producing the most important consequences in the operations of the enemy. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature.

"This country, which-however much its practice may be misrepresented by foreign writers, and sometimes by our own, has always administered the law of nations with lenity, adopts a more indulgent rule, inflicting on the ship only a forfeiture of freight in ordinary cases of contraband. But the offence of carrying dispatches is, it has been observed, greater. To talk of the confiscation of the noxious article, the dispatches, which constitutes the penalty in contraband, would be ridiculous. There would be no freight dependent on it, and therefore the same precise penalty cannot, in the nature of things, be applied. It becomes absolutely necessary, as well as just, to resort to some other measure of confiscation, which can be no other than that of the vehicle.

"Then comes the other question, whether the penalty is not also to be extended further, to the cargo, being the property of the same proprietors—not merely ob continentiam delicti, but likewise because the representatives of the owners of the cargo, are directly involved in the knowledge and conduct of this guilty transaction? On the circumstances of the present case I have to observe, that the offence is as much the act of those who are the constituted agents of the cargo, as of the master, who is the agent of the ship. The general rule of law is, that, where a party has been guilty of an in terposition in the war, and is taken in delicto, he is not entitled to the aid of the court, to obtain the restitution of any part of his property involved in the same transaction. It is said, that the term., interposition in the war' is a very general term and not to be loosely applied. I am of opinion, that this is an aggravated case of active interposition in the service of the enemy, concerted and con... tinued in fraud, and marked with every species of malignant con duct. In such a case I feel myself bound, not only by the general rule, ob continentium delicti, but by the direct participation of guilt in the agents of the cargo. Their own immediate conduct not only excludes all favourable distinction, but makes them pre-eminently the object of just punishment. The conclusion therefore is, that I must pronounce the ship and cargo subject to condemnation.

"The court observed afterwards:-I will mention, though it is a circumstance of no great consequence, that I have seen the dispatches in this case, and that they are of a noxious nature, stating the strength of the different regiments, &c., and other particulars entirely military."

THE "RAPID."

HIGH COURT OF ADMIRALTY, 1810.

(Edwards, 228.)

As a rule, carrying dispatches to the enemy involves the confiscation of the ship; but where the master denied all knowledge of the presence of the dispatch, he was subjected to loss of expenses and time only.

This was the case of an American ship which was captured on her voyage from New York to Tonningen, on suspicion of an intention to push into the Texel. But the question of destination being abandoned by the captors, they now contended that the case came within the principle laid down by the court in the case of the Atalanta, as it had been discovered, that among the papers given up by the master at the time of capture, there was a dispatch addressed to the Dutch colonial minister at the Hague, under cover to a commercial house at Tonningen.

Judgment, Sir WILLIAM SCOTT:

"The question of destination being disposed of, I have now only to consider what will be the legal effect of carrying these dispatches; and as it appears that the practice of conveying papers of this description, for the enemy, prevails to a considerable extent, I must take occasion to remind the proprietors of neutral vessels, that wherever it is indulged without sufficient caution, they will inevitably subject themselves to very grievous inconveniences. I should certainly be extremely unwilling to incur the imputation of imposing any restrictions upon the correspondence which neutral nations are entitled to maintain with the enemy, or, as it was suggested in argument, to lay down a rule which would in effect deter masters of vessels from receiving on board any private letters, as they cannot know what they may contain. But it must be understood, that where a party, from want of proper caution, suffers dispatches to be conveyed on board his vessel, the plea of ignorance will not avail him. His caution must be proportioned to the circumstances under which such papers are received. If he is taking his departure from a hostile port in a hostile country, and still more, if the letters which are brought to him are addressed to persons resident in an hostile country, he is called upon to exercise the utmost jealousy with regard to what papers he takes on board. On