order that such corn, &c., might be purchased on behalf of Government.

This last order was subsequently revoked, and the question of its legality became the subject of discussion in a mixed commission, constituted under the treaty, to decide upon the claims of American citizens, by reason of irregular or illegal seizures of their vessels and cargoes, under the authority of the British Government.

A full indemnification was allowed by the commissioners, under the 7th article of the Treaty of 1794, to the owners of vessels and cargoes seized under the orders in council, as well for the loss of a market as for the other consequences of their detention.

It was, however, urged on the part of the United States, that the 18th article of the Treaty of 1794, manifestly intended to leave the question where it was before, namely, that when the law of nations, existing at the time the case arises, pronounces the articles contraband, they may for that reason be seized; when otherwise, not so. Each party was thus left free to decide what was contraband in its own courts of the law of nations, leaving any false appeal to that law to the usual remedy of reprisals and war.*

Since the ratification of this treaty, we have a decision of Lord Stowell, in 1799, on this very subject, in the case of the Haabet, which, however, arose on a question of insurance.

"The right of taking possession of provisions is no peculiar claim of this country; it belongs generally to belligerent nations: the ancient practice of Europe, or at least of several maritime states of Europe, was to confiscate them entirely. A century has now elapsed since this claim has been asserted by some of them. A more mitigated practice has prevailed in later times, of holding such cargoes subject

* 2 Wheaton, 194, 210.

only to a right of pre-emption; that is, to a right of pur-
chase, upon a reasonable compensation, to the individual
whose property is thus diverted. This claim on the part
of the belligerent cannot go beyond cargoes avowedly
bound to the enemy's ports, or suspected on just grounds
to have a concealed destination of that kind.
The neu-
tral can only expect a reasonable compensation. He cannot
look to the price he would obtain in the enemy's port. An
enemy, distressed by famine, may be driven by his neccessi-
ties to pay a famine price; but it does not follow that the
belligerent, in the exercise of his rights of war, is to pay
the price of distress."*

"It is a mitigated exercise of war, on which any purchase is made; and no rule has established that such a purchase shall be regulated exactly on the same terms of profit which would have followed the adventure, if no such exercise of war had intervened; it is a reasonable indemnification, and a fair profit, that is due, reference being had to the price originally paid by the exporter, and the expenses he has incurred."

Vessels

Forces.

Transporting the Enemy's Forces, subjects a Neutral Ves- Neutral sel to confiscation, if captured by the opposite belligerent. Transporting Sir Wm. Scott says, in the leading case on this subject- Enemy's "That a vessel hired, by the enemy, for the conveyance of military persons is to be considered as a transport, subject to condemnation, has been in a recent case, held by this Court, and on other occasions.† What is the number of military persons that shall constitute such a case it may be difficult to define. In the former cases there were many, in the present they are fewer in number; number alone is an insignificant circumstance in the considerations on which *The Haabet, 2 Rob. Adm. Rep. 182.

†The Carolina, Rob. Adm. Rep. vol. iv. p. 256,

the principles of law on this subject are built; since fewer
persons of high quality and character may be of more im-
portance than a much greater number of persons of lower
condition. To send out one veteran general of France to
take command of the forces at Batavia might be a much
more noxious act than the conveyance of a whole regiment.
The consequences of such assistance are greater, and there-
fore it is what the belligerent has a stronger right to prevent
and punish. In this instance the military persons are three,*
and there are besides two other persons who were going to
be employed in civil capacities in the Government of Bata-
via. * * It appears to me, on principle, to be but reason-
able that, whenever it is of sufficient importance to the
enemy that such persons should be sent out on the public
service, and at the public expense, it should afford equal
ground of forfeiture against the vessel that may be let out
for a purpose so intimately connected with hostile operations.†
The fact of the vessel having been pressed into the ene-
my's service does not exempt her. The master cannot aver
that he was an involuntary agent."+

Neutral Ships Carrying the Despatches of the Enemy is also a ground of
Carrying
Enemy's Des- condemnation. "In the transmission of Despatches may be

patches.

conveyed the entire plan of a campaign, that may defeat all
the plans of the other belligerent, in the world. It is a
service, therefore, which, in whatever degree it exists, can
only be considered in one character-as an act of the most
hostile nature. The offence of fraudulently carrying des-
patches in the service of the enemy being greater than other
contraband, some other penalty has to be affixed. The con-
fiscation of the noxious article would be ridiculous when
*They were officers of distinction.

†The Orozembo, 1 Rob. Adm. Rep. p. 434.
+ Idem.

applied to Despatches. There would be no freight dependent on their transportation. The vehicle (i.e. the ship) in which they are carried must, therefore, be forfeited.” *

The Despatches of an Ambassador or other Public Ambassadors excepted. Minister of the Enemy, resident in a neutral country, are an exception to this rule, being the despatches of persons who are in a peculiar manner the favourite object of the Law of Nations, residing in the neutral country for the purpose of preserving peace and the relations of amity between that state and their own government.

The ambassador of the enemy may be stopped on his passage, but when he has arrived in the neutral country, he becomes a sort of middleman, and is entitled to peculiar privileges.†

Contraband

Under the present Law of Nations, a Contraband Cargo Penalty for cannot affect the ship; the carrying of contraband articles Trade. is attended only with loss of freight and expenses, except where the ship belongs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with some malignant and aggravating circumstances.‡

Penalties.

The aggravation of fraud justifies additional Penalties; Additional thus, the carriage of contraband with a false destination, will work a condemnation of the ship as well as the cargo; the false destination being intended to defeat the right of preemption.§ Generally, false papers will extend the taint of contraband to the vessel.

* The Atalanta, Rob. Adm. Rep. vol. vi. p. 440.
†The Caroline, Rob. Adm. Rep. vol. vi. p. 461.
The Ringende Jacob, Rob. Adm. Rep. vol. i. p. 90.

§ The Franklin, Rob. vol. iii, p. 125.

Return

Free.

It is also an established rule, that the transfer of contraband by a neutral, from one port of a country to another, where it is required for the purposes of war, is subject to be treated in the same manner as an original importation into the country itself.*

Generally, the proceeds of the Return Voyage cannot be Voyage taken. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods are actually endeavouring to enter the enemy's port; but beyond that, if the goods are not taken in delicto, and in actual prosecution of such a voyage, the penalty is not now generally held to attach.†

Blockades.

SECTION III.

Blockades. Right of Search. Convoys.

We now pass on to the subject of Blockade, which is the next exception to the general freedom of neutral commerce in time of war.

A blockade is a high act of Sovran authority; it cannot be assumed or exercised by a commander, without special authority, provided his Government is sufficiently near at hand to superintend and direct the course of operations; but a commander on a distant station is supposed to carry with him such a portion of the Sovran authority as may enable him to act with energy against the commerce of the enemy, as against the enemy himself‡

*The Rolla, 6 Rob. 366.

†The Edward, Rob. Adm. Rep. vol. iv. p. 70,
The Tonina, Rob. Adm. Rep. vol. iii. p. 168.