of war, or others having commissions from any prince, republic or state whatever." But Bynkershoeck makes one exception to the general inviolability of neutral territory, and supposes that if the enemy be attacked on hostile ground, as in the open sea, and flee within the jurisdiction of a neutral state, the victor may pursue him dum fervet opus, and seize his prize within the neutral state. He rests his opinion entirely on the authority and practice of the Dutch, and admits that he had never seen the distinction taken by the publicists, or in the practice of nations. It appears, however, that Casaregis, and several other foreign jurists mentioned by Azuni, held a similar doctrine. But D'Abreu, Valin, Emerigon, Vattel, Azuni, and others, maintain the same doctrine, that when the flying enemy has entered neutral territory, he is placed immediately under the protection of the neutral power. The same broad principle that would tolerate a forcible entrance upon neutral ground or waters, in pursuit of the foe, would lead the pursuer into the heart of a commercial port. There is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. In the correspondence which took place between the American Secretary of State (Mr. Webster) and the British minister (the late Lord Ashburton), relative to the case of the American steam-boat Caroline, seized on the Canadian border, the former stated, and the rule appears to have been admitted by Lord Ashburton, that to justify a hostile entrance upon neutral territory, there must exist a necessity of self-defence, overwhelming, leaving no choice of means, and no moment for deliberation." (1 Kent, 125.)

CONTRABAND.

What commerce shall be deemed contraband is a question which has given rise to infinite discussion between the forces of belligerent states, and the merchants of neutral nations. "The king," said Lord

Erskine, (Speech on the Orders in Council, 8th March, 1808,) "having, by his prerogative, the power to promulgate who are his enemies, is bound to watch over the safety of the state; he may, therefore, make new declarations of contraband, when articles come into use as implements of war, which before were innocent; this is not the exercise of discretion over contraband; the law of nations prohibits contraband, and it is the usus bellici, which, shifting from time to time, make the law shift with them."

In the time of Grotius, some persons contended for the rigour of war, and some for the freedom of commerce. As neutral vessels 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 (Book 3, c. 1, s. 5) distinguishes between, first, things which are useful only so far as arms and ammunition; secondly, things which serve merely for pleasure, and, thirdly, things which are of a mixed nature, and useful both in war and in peace. He agrees with other jurists in prohibiting neutrals from carrying articles of the first kind to the enemy, and in permitting articles of the second class to be carried. As to articles of the third class, those of indiscriminate use in peace and war, such as money, provisions, ships, and naval stores, he lays it down

that they are sometimes lawful articles of neutral commerce and sometimes not, the question depending entirely upon the circumstances existing at the time. They would be contraband, for example, if carried to a besieged town, camp, or port, as in a naval war ships and materials for ships become contraband; and by Rutherforth (Ins. 1, c. 9) horses and saddles are included in the general category of contraband. Vattel (Book 3, c. 7, s. 112) says in general terms, "That commodities particularly used in war are contraband, such as arms, military and naval stores, timber, horses, and even provisions under circumstances, when there are hopes of reducing the enemy by famine.” Bynkershoeck (Lib. 1, c. 9, 10) rejects from the list of contraband those articles which are of indiscriminate use in peace and war, regarding the limitation assigned by Grotius to the right of intercepting them-to the case of necessity, and the obligation of restitution or indemnification-as inadequate to justify the exercise of the right. He insists that if all the materials, not intrinsically contraband, of which something may be constructed that is fit for war purposes, the catalogue of contraband will be endless, there being scarcely any article out of which something that may be used in war may not be formed, and that the prohibition of such an infinite variety of articles would constitute almost a total prohibition of commerce. He admits, however, that materials for building ships may fairly come within prohibition, "if the enemy is in great need of them, and cannot well carry on the war without them;" and upon this ground he justifies the edict of the States General of 1657 against the Portuguese, and that of 1652, against the English, as exceptions

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to his general rule. The marine ordinance of Louis the Fourteenth, Des Prises, article 11, included horses and their equipage, transported for military service, within the list of contraband, because they were necessary to war equipments; this is doubtless the general rule. The treaty of navigation and commerce of Utrecht, confirmed by the treaty of Aix-la-Chapelle, in 1748, the treaty of Paris, in 1763, the treaty of Versailles, 1783, and the commercial treaty between France and Great Britain of 1786, limited contraband strictly to munitions of war, expressly excluding naval stores, provisions and all other goods not worked up into the form of any instrument or furniture for warlike use. The subject of the contraband character of naval stores afforded matter for infinite altercation between Great Britain and the Baltic powers, throughout the whole of the 18th century. Various relaxations in favour of extreme belligerent pretensions on this subject had been conceded in favour of commerce in articles the peculiar growth and production of these states, either by permitting them to be freely carried to the enemy's ports, or by mitigating the original penalty of confiscation, on their seizure, to the milder right of preventing the goods being carried to the enemy, and applying them to the use of the belligerent, on making a pecuThis conniary compensation to the neutral owner.

troversy was at last terminated by the convention between Great Britain and Russia, concluded in 1801, to which Denmark and Sweden subsequently acceded. By the 3rd article of this treaty, which is literally copied from the treaties of armed neutrality of 1780 and 1800, the list of contraband is confined to munitions of war, excluding naval stores, "without pre

judice to the particular stipulations of one or the other crown with other powers, by which objects of similar kind should be reserved, provided, or permitted."

In the war between England and France, which commenced in 1793, the United States professed to be governed by the modern usage of nations on this point. (President's Proclamation, April 22, 1793.)

In the treaty concluded between Great Britain and the United States, on the 19th of November, 1794, it was stipulated (article 18) that under the denomination of contraband should be comprised all arms and implements serving for the purposes of war, "and also timber for ship building, tar or rosin, copper in sheets, sails, hemp, and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted."

Brimstone is an article which, under circumstances connecting it with a warlike purpose, is contraband. (The Ship Carpenter, 2 Acton, 11.)

The carrying of all merchandize on board of a packet-ship is strictly prohibited by 13 & 14 Car. 2, c. 11, s. 22, except under special allowance there described. The amount of the articles is immaterial, except in a very minute degree, which the revenue laws themselves have specified; the quality also is altogether immaterial; neither does it make any difference whether the owners are on board or not, or whether the lading is called a cargo or private adventure.

The statute enacts, "that no ship, vessel or boat appointed and employed ordinarily for the carriage of letters and packets, shall, unless it be in such cases as shall be allowed by the said person or persons