settled on the completion of the voyage, do not furnish (all circumstances being duly weighed) the necessary or just measure of value to be applied in transactions of this kind, I do not find myself enabled to sustain the objection.'

CCLXXI. Fifthly. An exception from the foregoing rule is furnished by the case of Ambassadors sending dispatches from the neutral country in which they are resident, for the purpose of preserving the relations of amity between that State and their own Government. It is indeed competent to a Belligerent to stop the Ambassador of his enemy on his passage; but when he has arrived, and has taken upon himself the functions of his office, and has been admitted into his representative character, he is entitled to peculiar privileges, as set apart for the protection of the relations of amity and peace, in maintaining which all nations are, in some degree interested. With respect to this question, the convenience of the neutral State is also to be considered; for its interests may require that the intercourse of correspondence with the enemy's country should not be altogether interdicted; it would be almost tantamount to preventing the residence of an Ambassador in a neutral State, if he were debarred from the means of communicating with his own.

Despatches found on board a neutral ship, containing communications from a hostile Government to their Consul resident in a neutral country, are not generally speaking, of the nature of Contraband. (a)

The legal presumption is that the communication has reference to the commercial relations of the Belligerent and the *Neutral, and if they were interdicted, the functions of the official persons charged [*369] with the maintenance of these relations would altogether cease. It is to be remembered, that the functions of the Consul relate to the joint commerce in which the neutral as well as the Belligerent is engaged. (b)

CCLXXII. Sixthly. As to carrying of military persons in the employ of a Belligerent, or being in any way engaged in his transport service.

It has been most solemnly decided by the Tribunals of International Law, both in England and the United States of North America, that these are acts of hostility on the part of the Neutral which subject the vehicle in which the persons are conveyed to confiscation at the hands of the Belligerent. (c)

It may be difficult to define what is the number of military persons the conveyance of whom may subject the neutral ship to this penalty; but, in truth, the number alone is an insignificant circumstance in the considerations on which the principle of Law is built; since fewer persons of high quality and character may be of more importance than a much greater number of persons of lower conditions: to send out one general may be a more noxious act than the conveyance of a whole regiment.(d) It has been justly holden that a ship so employed cannot escape confiscation by alleging that she acted under duress and violence. If an act

(a) The Caroline, 6 Ib., p. 468.

(b) The Madison, Edwards's Adm. Rep., p. 224.

(c) The Caroline, 4 Rob. Adm. Rep. p. 256. The Friendship, 6 Ib., p. 420. The Orozembo, ib. p. 430. The Commercen, 1 Wheaton's (Amer.) Rep. 391. (d) The Orozembo, 4 Rob. Adm. Rep., pp. 453-4.

of force, exercised by one Belligerent Power on a neutral ship or person, were to be deemed as sufficient justification for any act done by him contrary to the known duties of a neutral character, the rights of the Belligerent and the rules of International Law would be easily evaded and set at naught. The Neutral *must look to his own Govern

[*370] ment for redress against the Government which has coerced him.

Moreover, the penal liability of the ship so employed is not extinguished until the vessel has shaken off the belligerent character which her occupation has impressed upon her. So long as she continues under the command of the enemy she remains liable to capture and condemnation.(d)

CCLXXIII. Official communications from an official person on the public affairs of the belligerent Government, (e) are such despatches as impress a hostile character upon the carriers of them.

The mischievous consequences of such a service cannot be estimated, and extend far beyond the effect of any Contraband that can be conveyed, for it is manifest that by the carriage of such despatches the most important operations of a Belligerent may be forwarded or obstructed.

In general cases of Contraband, the quantity of the article carried may be a material circumstance, but the smallest despatch may suffice to turn the fortunes of war in favour of a particular Belligerent. (ƒ)

CCLXXIV. The penalty is confiscation of the ship(g) which conveys the despatches, and, ob continentiam delicti, of the cargo, (h) if both belong to the same master.

It is indeed competent to those entrusted with the care of the ship, on board of which such despatches are found, to discharge themselves from the imputation of being concerned in the knowledge and management of the transaction.(i) But the presumption is strong against the ignorance of the master of the ship, and when he has knowingly taken on [*371] *board a packet or letter addressed to a public officer of a belligerent Government, the plea of the insignificance of communication, and its want of connection with the political objects of the war, will not avail him, nor, except perhaps in an extreme case of imposition practised upon him, will the plea of ignorance of the contents of the despatches avail him; his redress must be sought against the person whose agent or carrier he was.(k

With respect to such a case as might exempt the carrier of despatches from the usual penalty it is to be observed that where the commencement of the voyage is in a neutral country, and is to terminate at a neutral port, or at a port to which, though not neutral, an open trade is allowed, in such a case there is less to excite the vigilance of the master, and,

(d) The Caroline, 4 Rob. Adm. Rep., pp. 259-261.

(e) The Caroline, 6 Ib., p. 465.

(f) The Atalanta, ib. 440, is a leading case on the subject, in which all the premises which lead to the conclusion expressed in the text are fully set forth.

(g) The Caroline, ib., p. 461, note.

(h) The Atalanta, ib. p. 460.

(i) Ib., p. 445. The Rapid, Edwards's Adm. Rep., 228.

(k) The Hope, cited in the Atalanta, 6 Robinson, p. 457. The same case cited in note to the Caroline, 6 Rob., pp. 461, 462. The Rapid, Edwards's Adm. Rep., pp. 228-229.

therefore, it may be proper to make some allowance for any imposition which may be practised upon him. But when a neutral master receives papers on board in a hostile port, he receives them at his own hazard, and cannot be heard to avow his ignorance of a fact with which, by due inquiry, he might have made himself acquainted.

CCLXXV. Seventhly. We have to consider the penalty of carrying Contraband.

By the ancient Law of Nations, the carrying of Contraband worked in all cases a forfeiture of the vehicle which carried it.

According to the mitigated rule of modern practice, the ship is not generally condemned, but freight and expenses only are forfeited.(7) *The exceptional cases, in which the severity of the ancient law is still applied, are―

1. Cases in which there are circumstances of aggravation.

[*372]

2. Cases in which the Contraband belongs to the owner of the ship.(m) CCLXXVI. 1. Among the circumstances of aggravation, are to be mentioned :

α.

A false destination, which, with Contraband on board, subjects both ship and cargo to condemnation.(n)

B. The carriage of Contraband, with the privity of the owner, and in violation of a Treaty.(o)

y.

A concealment of Contraband in the outward cargo, which has been holden to render the ship, on her return, subject to condemnation; and the misconduct of the supercargo-the agent of the owner-has been holden to affect the owner's interest. (p)

♪. A private vessel has been forfeited by the contraband traffic of an officer placed in command by the Board of Admiralty.(q)

2. In cases in which the ship belongs to the owner of the Contraband, condemnation always follows. If the owner of the Contraband own a share only in the vessel, his share will be condemned: and this effect will be produced by the contraband articles, though unclaimed, if they appear by the evidence to belong to such part-owner. (r) [*373] CCLXXVII. With respect to the effect of Contraband upon the rest of the cargo, it is to be observed that the penalty of Contraband extends to all the property of the same owner involved in the same unlawful transaction.(s) And therefore, if the same owner possess articles which are and which are not Contraband, all will be alike condemned. To

(1) Bynkershoek, Q. J. P., l. i. c. x. The Ringende Jacob, 1 Rob. Adm. Rep., p. 90. The Sarah Christina, ib., p. 242. The Jonge Jacobus Baceman, ib., p. 243. The Mercurius, ib. p. 288. The Emanuel, ib., p. 296. The Jonge Tobias, ib., p. 329. The Wilhelmina, note to the Rebecca, 2 Rob. Adm. Rep., p. 101. The Franklin, 3 Ib., p. 217. The Neutralität, ib., p. 295. The Atlas, ib., p. 304, n. (m) The Mercurius, note, 1 Rob. Adm. Rep., p. 288. The Jonge Tobias, ib., p. 329. The Franklin, 3 Rob., p. 217. The Ringende Jacob, 1 Rob., p. 91. The Neutralität, 3 Rob., p. 295.

(n) The Franklin, 3 Rob., p. 217. The Ranger, 6 Rob., p. 125.

4 Rob., p. 68.

The Edward,

(0) The Neutralität, 3 Rob., p. 295. (p) The Baltic, 1 Acton, p. 25. (g) Blewitt v. Hill, 13 East's Reports, p. 13.

(r) The Floreat Commercium, 3 Rob., p. 178. The Franklin, ib., p. 217. (s) The Sarah Christina, 1 Rob., p. 242. The Neptunus, 6 Rob., p. 409.

escape from the contagion of Contraband, the innocent articles must be the propety of a different owner.(t) "Sed omnino distinguendum putem," Bynkershoek says, "an licitæ et illicita merces ad eundem dominum pertineant an ad diversos, si ad eundem omnes rectè publicabuntur, ob continentiam delicti." (u)

In a case, however, in which the ship was condemned for carrying the particular Contraband of despatches, the penalty was not extended to the cargo, though the property of the same owner, it being shown that he was ignorant of the shipment, and it not being shown that the master had been appointed agent for the cargo.(x)

CCLXXVIII. A neutral ship cannot claim exemption from the penalty of carrying Contraband because there exists between her and the country of her seizors a Treaty that Free Ships make Free Goods,(y) or because a permission has been given to her to trade with the enemy in innocent articles.(z)

A British subject, resident and domiciled abroad, may engage in trade with the enemy; but nevertheless, the duty of allegiance so far travels with him as to restrain him from *trafficking with the enemy in [*374] articles of a contraband nature. (a)

CCLXXIX. Eighthly. It now remains to make some observations with respect to the Treaties-more especially, and in detail, those which affect England-upon this subject.

It should be premised that Treaties respecting Contraband are framed for cases in which one party is in a state of Neutrality, and not where both are connected in hostilities against one common enemy. They cannot, therefore, extend to the trade of either country, at a time when both countries are associated in war, and are bound to contribute their whole force and energy against the common enemy. In that case, questions of Contraband are not to be determined by the provisions of Treaties relating to a state of Neutrality on the part of one of the contracting parties, but by the rules provided by the common Law of Nations.

CCLXXX. The first armed Neutrality, 1780, declared (b) that the parties to it "shall only acknowledge to be contraband commodities those which are included and mentioned as such in the Treaties now subsisting between their respective Courts and the one or the other of the belligerent Powers."

(t) The Staadt Embden, 1 Rob. Adm. Rep., p. 28.

(u) Bynk., Q. J. P., l. i. c. 12.

(x) The Susan. The Hope. Notes to the Caroline, 6 Rob., pp. 462-3.

Y The Asia, cited in Index to 6 Rob., p. 483.

The Eleonora Wilhelmina, 6 Rob., p. 331.

a) The Neptunus, 6 Rob., p. 409. See, too, Holland v. Hall, 1 Barnewall & Alderson's Reports, p. 53. "Where A. agreed to sell to B. one-third share of a ship, which was then to be employed on a joint adventure, in the exportation of military stores to South America, contrary to an Order in Council then in force; it was holden, that (the agreement being entire, and containing on the face of it an illegal stipulation) it lay on the party seeking to enforce the same, to show that means had been used to obtain a license, or that the illegal purpose had been abandoned, and that, in failure thereof, A. could not recover for the share of the ship." The Eleonora Wilhelmina, 6 Rob., p. 331. The Neptunus, 6 Rob. p. 403. (b) Article 2.

The second armed Neutrality, 1800, acknowledged only "cannons, mortars, firearms, balls, flintstones, (c) *matches, gunpowder, [*375] saltpetre, sulphur, helmets, pikes, swords, hangers, cartridgeboxes, saddles and bridles, with the exception of such a quantity of the above-mentioned articles as may be necessary for the defence of their ships and crews." (d)

By the Treaty between England and Russia of 1797 and of 1801, it was agreed not to consider as Contraband the merchandise of the produce, growth, or manufacture of the countries at war which should have been acquired by the subjects of the Neutral Power, and should be transported for their account.(e)

The following articles only were acknowledged as Contraband:cannons, mortars, firearms, pistols, bombs, grenades, balls, bullets, firelocks, flints, matches, gunpowder, saltpetre, sulphur, cuirasses, pikes, swords, swordbelts, knapsacks, saddles, bridles, with the same reservation as in the other Treaties as to the use and defence of the ship and crew.(ƒ)

The 8th article provided that "these stipulations shall be regarded as permanent, and shall serve for a constant rule to the contracting Powers in matters of commerce and navigation."

In consequence of this article, Lord Grenville expressed, in a masterly speech, in which he reviewed the whole Treaty, his apprehension that England might be holden to have enunciated a general and universally binding principle of International Law upon this subject.(g) This Treaty is not now in force.

CCLXXXI. We now proceed to mention the provisions upon this subject which are now in force between Great Britain and other Powers.

*Between England and Denmark.

[*376]

By the explanatory article of the Treaty with Denmark of 1780, "the two contracting Sovereigns reciprocally engage, for themselves and their successors, not to furnish to the enemies of either party in time of war any succour, neither soldiers nor vessels, nor any effects and merchandise called Contraband; and in like manner to prohibit their subjects from so doing, and to punish severely, and as destroyers of the peace, those who should dare to act contrary to their prohibitions in this respect; but in order to leave no doubt upon what is to be understood by the term Contraband, it is agreed that this denomination is meant only to comprehend arms, as well firearms as other kinds, with their furniture, as cannon, muskets, mortars, petards, bombs, grenades, carcasses, saucisses, carriages for cannon, musket-rests, bandoleers, gunpowder, matches, saltpetre, balls, pikes, swords, helmets, cuirasses, halberts, lances, javelins, horses, saddles, pistol-holsters, belts, and generally all other warlike implements, also ship-timber, tar, pitch, and resin, sheet copper, sails, hemp, and cordage,

(c) Would anybody contend that copper caps are not now Contraband?
(d) Article 2.
(ƒ) Article 3.

(e) Ibid.

(g) Pp. 55-60,of Speech published by Cobbett, 18 Pall Mall, London, January, 1801. Vide ante, vol. i. (of this work,) pp. 44-5, upon this point.