agreed on if it be inflamed by extraordinary circumstances'. The fact of the enemies' goods thus carried by the neutral being carried to the other belligerent does not prevent the neutral carrier from claiming and obtaining his freight, for though so far as the subjects of the enemy are concerned the trade with the other is illegal, yet that is not so as regards neutrals, and therefore even if the voyage be from the port of one enemy to that of the other the neutral's trade is legal, and his claim for freight allowed. But in order to entitle himself to freight the conduct of the neutral must be entirely free from fraud or unfairness; for fraud, or unfairness, or violation of belligerent rights will, under ordinary circumstances, work the forfeiture of his freight and expenses; in flagrant cases will even cause the confiscation of the ship itself and all on board her. Therefore where he has used false papers, or carried contraband goods, or wilfully destroyed his ship's papers, he will be refused freight; and the same consequence follows where the cause of capture was the ship, not the cargo. So far for the question of freight where the carrier is a neutral and the goods are those of a belligerent. In the next class of cases, where the position is reversed, the goods being neutral and the carrier a belligerent, 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. As a general rule, he is not entitled to freight, unless he performs the voyage and carries the goods to the port of original destination, a rule that holds notwithstanding there may have been a sale of the goods beneficial to the owner]. Under certain circumstances, too, the captor has been considered to be entitled to freight

1 The Twilling Riget, 5 Robinson, 82.

2 The Hoop, I Robinson 196, 219. The Wilhelmina, 2 Rob. 101, note. 3 Story on Prize Law, ed. 1854, by Dr. Pratt, p. 93.

The Atlas, 3 Robinson, 299-304, note. The Sarah Christian, 1 Robinson, 237. The Mercurius, 1 Rob. 288. The Commercen, 1 Wheaton's Reports, 382. The Rising Sun, 2 Rob. 104. The Fortuna, Edwards, 56.

The Nereide.

even though the goods were carried to the claimant's own country and restored'. [So also if the captors bring the cargo to the country where the claimants ultimately designed to send it, though compelled to take a circuitous route under existing circumstances, notwithstanding the ship was actually destined to another country there to land it. Or if the cargo be brought to the same country, but not to the port of actual destination, in both these cases the captors are entitled to freight.] But 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 original voyage, by capture, might have produced to the owner of the goods.

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 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

1 Bynk. Q. J. P. B. 1. ch. xii. The Fortuna, 4 Robinson, 278. The Diana, 5 Rob. 67. The Vrow Anna Catharina, 6 Rob. 264.

2 The Diana, ut supra. The Vrow Henrietta, in 5 Rob. 75, note. See also Story on Prize Law, pp. 94, 95.

3

9 Cranch's Reports, 398.

English High Court of Admiralty, in the case of the Fanny'; and it was there observed, that a neutral subject The Fanny. 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 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 of the United States was correct in principle, and the most liberal and honourable to the jurisprudence of that country. The question may, therefore, be considered there as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal in the United States.

Criticism on

the Nereide.

[On these two cases Mr Duer's remarks deserve to be quoted: he says, "The authority of the decision in the Mr Duer's Nereide, as a just exposition of the law of nations, is the case of greatly impaired by the dissent of a learned judge (Mr J. Story), by whom the principles and doctrines of that law are known to have been profoundly studied, and whose decisions evince his masterly knowledge of the entire

system to which they belong." In support of his opinion, which was in accordance with the view taken by Sir Wm. Scott in the case of the Fanny above mentioned, Mr. J. Story referred to the cases, then recent, of American ships captured, while under British convoy, by the Danes, and condemned by the highest prize tribunal in Denmark, and cited with approval the grounds of the decision in the case of the Samson Barney'. In spite therefore of the decision of the rest of the court in the Nereide, and in spite of Mr J. Johnson's elaborate vindication of that decision in his judgment in the Atalanta, Mr Duer doubts whether any change will be produced in the conviction that the arguments of Sir William Scott and Mr J. Story are fitted to impress. It should, however, be noticed that the American government pressed their claims upon that of Denmark for the condemnation of the American ships above referred to. These claims, after a peremptory refusal in the first instance, and a long and elaborate argument in support of a renewal of them, were settled by a treaty between the two countries in 1830, by which the latter power agreed to indemnify the American claimants for the loss of their property by the payment of a fixed sum, to be apportioned by commissioners appointed by the American government.]

1 Quoted in the Maria, 1 Robinson, 346.

3 For a full account of the transaction, and the arguments involved in it, see Wheaton's Elements, Vol. II. Part 4. ch. iii. § 32. pp. 858-867. Laurence's ed. of 1863.

CHAPTER IX.

OF RESTRICTIONS UPON NEUTRAL TRADE.

THE principal restriction which the law of nations im- Contraband. poses 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. For whilst, on the one hand, the list is an extensive one, and the catalogue has varied so much at times, as to make it very difficult to assign the reason for the variation, on the other, it is scarcely possible to lay down any general test that shall enable us at once to say what are, or are not, contraband articles.

rules on the

In the time of Grotius, some persons contended for the Ancient rigour of war, and others for the freedom of commerce. As subject. 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 distin

1 Vattel, Bk. I. ch. viii. § 90. On this subject generally the reader may refer with advantage to Ortolan, Règles Internationales, &c. T. 11. Liv. III. ch. vi. especially for an historical account of the French regulations on the subject to Cauchy, Droit Marit. Intern. T. II. ch. vi. § 3, and to Massé, Droit Commercial, T. 1. Liv. II. ch. ii. § 11. Art. II.

2 The Jonge Margaretha, 1 Robinson, 189.