for confiscation of the ship, but merely justified her capture, and authorised the captors to send her into a proper port for adjudication. By the general law of nations, as well as by the particular stipulations of the treaty in question, the parties were considered to be at liberty to give further explanations of their conduct, and to make other proofs of their property, for the spoliation of the papers may be caused by accident, necessity, or superior force. The observation of Lord Mansfield, in Bernardi v. Motteaux,2 was to a similar effect. By the Maritime Law of all countries, he said, throwing papers overboard was considered as a strong presumption of enemy's property; but in all his experience he had never known a condemnation on that circumstance only.

ships of

war.

With regard to public vessels, their nationality is Public ascertained from the Flag and the Commission. The latter furnishes the most complete proof; for the flag, although primâ facie, is not conclusive evidence of national character. But the commission of a public ship signed by the proper authorities of the nation to which she belongs, so far at least as foreign Courts are concerned, imports absolute verity, and the title is not examinable. The property in her must be held to reside in the nation to which she professedly belongs, and it must be taken to have been duly acquired. This has, as observed by Mr. Justice Story, been the settled practice between nations. It is a rule founded in public convenience and policy, and cannot be broken in upon without endangering the peace and repose, as well of neutral as of belligerent sovereigns.3

1 The Pizarro, 2 Wheaton, p. 243. | 2 Dougl. p. 581.

3 La Santissima Trinidad, 7 Wheaton, p. 283.

CHAPTER VI.

CONTRABAND OF WAR.

CONTRABAND OF WAR-DOCTRINE OF TEXT-WRITERS AND THE PRACTICE OF NATIONS ARTICLES DIRECTLY CONTRABAND ARTICLES ANCIPITIS USUS-DOCTRINE OF CONSTRUCTIVE CONTRABAND-PROVISION-DESTINATION AS AFFECTING THE QUESTION OF CONTRABAND-ARTICLES MUST BE TAKEN IN DELICTO-GOODS DESTINED FOR A NEUTRAL PORT NOT CONTRABAND-MAXIM THAT (6 THE OFFENCE DEPOSITED WITH THE CARGO "-DESPATCHES-AMBASSADORS IN A NEUTRAL COUNTRY-THE AFFAIR OF THE TRENT— PENALTY, CONFISCATION OF CARGO-RIGHT OF PRE-EMPTION— NEUTRALS MAY LAWFULLY SELL TO EITHER BELLIGERENT.

It is not intended in this place to enter into the history of the law of contraband of war. The reader who is desirous of pursuing this subject, which is one full of interest to the student of prize law, will find it fully and at the same time concisely treated in Dr. Twiss's work on the "Law of Nations in Time of War," where the authorities bearing on the question are collected and examined. Probably no question of international jurisprudence has been more fruitful in dispute between neutral and belligerent nations, owing to the uncertainty which has at all times prevailed as to the precise articles which come under the denomination of contraband. Here it must be sufficient to give the leading points of the law of contraband of war, as it may be collected from the writers who have treated 1 Ch. 7, p. 232.

of, and the decisions which have enforced, this branch of international jurisprudence in England and in America.

The law of nations has imposed upon neutrals certain restrictions on their commerce with belligerent States-a traffic into which they are naturally desirous to enter on the commencement of war. Among these restrictions is the rule under which a neutral is prohibited from supplying a belligerent power with warlike stores, or articles that may be made subservient to warlike purposes. These articles are termed contraband; which is a term of positive law, and means, in its primary sense, something prohibited by ban or edict. It subsequently came to be applied to a trade in certain articles carried on by the subjects of a neutral Power with the ports of a belligerent State. These articles range themselves into two classes. The first class comprehends all such as are in themselves implements of war, or which may be made immediately and directly of use in war. The second includes all those articles, ancipitis usus, which, not being at all times illegal merchandise to a belligerent port, have acquired the character of contraband, either from their destination or from other circumstances arising out of the particular situation of the war or the condition of the parties engaged in it. The former class may be termed contraband direct; the latter, contraband constructive.

1

of text

"There have been formerly," says Grotius," and still Doctrine are, great disputes as to what may lawfully be done writers. to those who are not our enemies, nor are willing to be

1 Twiss, p. 232,

thought so, and yet furnish our enemies with supplies. This is a point which has been sharply contested, both in ancient and modern times, some maintaining the extreme right of war, others the liberty of commerce. In the first place we must distinguish between the things themselves for there are some things which are of use only in war, as arms, others which are of no use in war, but serve only for pleasure, others which are useful both in war and peace, as money, provisions, ships, and their appurtenances. Concerning the first kind, it is true what was said by Amalasuntha to Justinian, that they are on the side of the enemy who supply him with things necessary for the war. As to. the second class of things, no complaint can be raised. With regard to the third class, which are objects of equivocal use, the circumstances of the war must be considered; for if I cannot protect myself unless I intercept what is sent, necessity will give me a right to intercept it, but under the obligation of restitution, except there be cause to the contrary. But if the supplying of the articles will impede the execution of my design, and the party who transports them might have known this fact-as, for instance, if I am besieging a town or blockading a port, and a surrender or a peace is daily expected-he will be liable to me for damages, and his property may be taken to satisfy the damages. If he has not done the damage, but is only attempting to do it, his property may be detained until he gives security for the future; but if the injustice of my enemy be very clear, and the supplies conveyed to him support him in his unjust war, then shall the party who conveys them to my enemy be not only liable to repair

my loss, but he may be treated as a criminal, as one who is rescuing a notorious offender from impending judgment; and for this reason it will be lawful for me to deal with him according to his offence, and for the purpose of punishment I may deprive him of his merchandise."1

Bynkershoek questions the opinion of Grotius, that there is an intermediate class of articles of promiscuous use which a belligerent may intercept on their way to his enemy if he cannot defend himself except by intercepting them, under the obligation of making restitution, on the ground that no belligerent can be expected to judge equitably between himself and a neutral merchant, as to the existence of such necessity as will warrant him in intercepting the goods of the latter, whilst the practice of nations makes no such distinction. He speaks of a common law of nations founded upon reason and usage, and that whilst reason suggests that we should be friends in an equal manner to our friends, although they should be enemies to each other, the usage of nations may be gathered from the conventions and declarations of sovereign princes. He says, "Dixi ex perpetuâ quodammodo consuetudine quia unum forte alterumve pactum, quod a consuetudine recedit jus gentium non mutat."2 He holds it to be lawful for a belligerent, under special circumstances, to forbid other articles besides what are contraband of war to be carried to the enemy; and he accordingly admits a class of things which, if not at all times contraband, may become contraband under circumstances.

1 De Jure Belli et Pacis, lib. iii. | Nations, p. 249. c. 1, § 5, cited Twiss, Law of

2 Quæst. Jur. Pub., lib. i. c. 10.