blockade, which would be doing him an injury, and therefore would be unjust. And because it cannot be known what articles the besieged may want, the law forbids in general terms carrying any thing to them; otherwise disputes and altercations would arise to which there would be no end.

Thus far my opinion coincides with that of Grotius, but I cannot agree with him when he requires an expectation of a surrender or a peace, and when he says immediately afterwards that even under those circumstances, the carrier is only bound to an indemnity for the damage occasioned by his fault, and if no damage has been suffered, that he may only be compelled by the detention of his goods to give security that he will not do the like in future. I wish that Grotius had not laid down such principles, which are neither consonant to reason, nor to the sense of treaties. For on what principle am I to be the judge of the future surrender or peace? and if neither is expected, is it then lawful to carry any thing to the besieged? I think on the contrary, that during a siege, it is always unlawful. It is not acting a friendly part to ruin, or in any way impair, the cause of a friend, and if so, why shall he who carried supplies to my enemy not be bound farther than for the damage occasioned by his fault? Such conduct has always been considered as a capital crime in subjects, nay, in neutrals, when previously warned by a proclamation, and often without such warning. As they are generally private individuals, who, impelled by the thirst of gain, are in the habit of administering supplies to the besieged; suppose, for instance, that such a one has been the cause that a city has not been taken, I should hardly think in such a case that any individual could be rich enough to repair the damage thereby suffered. And if he should be intercepted on his way to the besieged town with

* Our author appears here to have mistaken the meaning of Grotius. That writer does not, in our opinion, require as a necessary ingredient in a strict blockade, that there should be an expectation of peace or of a surrender, but merely mentions that as an example, and by way of putting the strongest possible case. We have transcribed the passage in the original language, with a literal translation in the preceding note, in order that our readers may be enabled to judge for themselves of the correctness of this remark.

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the supplies that he is carrying thither, shall we be content with taking and retaining the articles, and that merely until he gives security that he shall not commit the like in future? I cannot subscribe to this opinion; being taught by the usage of nations, that the least punishment in such a case is the forfeiture of the things taken; and that a corporal penalty at least, if not a capital one, is often inflicted on the offender.*

Let us now turn to some treaties on this subject. By the 9th article of the marine treaty between the king of Spain and the states-general, of the 17th of December 1650, it is simply agreed, "that it shall not be lawful to carry goods, even not contraband, to places blockaded and besieged." The same clause is contained in a variety of other treatiest ‡ all of which, however, merely stipulate that it is unlawful to carry any thing to besieged or blockaded places, without affixing any penalty to the offence. But, if the carrying of any thing to a besieged town or place is illicit, it follows that every thing which is carried thither is to be considered as contraband; for every

* This is a very severe doctrine, and which certainly is not conformable to the usage of nations at the present day; but it must be observed that our author, as well as Grotius, only meant to speak of a strict and actual siege or blockade, where a town is actually invested with troops, or a port closely blockaded by ships of war, portus clausus, as Grotius emphatically expresses it; for at the time when those great men wrote, no idea was enter tained of that enormous system of universal blockade, by means of edicts and proclamations, the effects of which have desolated the world for the last twenty years. T.

†Treaty of commerce between the states-general and the king of France, of the 27th of April 1662, art. 29.-Marine treaty between the king of England and the states-general, of the 1st of December 1674, art. 4.—Treaty of commerce between the king of France and the states-general, of the 10th of August 1678, art. 16.-Treaty of commerce between the king of Sweden and the states-general, of the 12th of October 1679, art. 16, and a great number of other treaties.

In our treaties with other nations, no other punishment is contemplated for a breach of blockade, than a confiscation of the ships and goods. In our treaty with Great Britain of the 19th of November 1794, art. 18, it is even stipulated that that punishment shall not be inflicted, except in the case of a vessel which shall, after being warned, attempt to enter a blockaded port. 2 Laws U. S. 484. A similar stipulation is contained in the 12th article of our convention with France, of the 30th of September 1800. 6 Laws U. S. Appendix xx.

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thing which is carried from one place to another contrary to law and treaties* is contraband, and as such, is at least liable to forfeiture. Thus usage has established it, as will be more fully shewn in the sequel; it has also established that the offenders may be punished capitally, or with a milder punishment, according to the circumstances of the case.†

Not only towns or cities, but camps likewise may be surrounded with troops and as it were besieged. In such a case it is not more lawful to carry any thing to them, than to invested cities. But if they are not besieged, I see no reason why neutrals may not lawfully carry thither any thing which may be lawfully carried to towns, ports and places so circumstanced, that is to say, every thing which is not actually contraband. And yet, the counsellors of the states-general, in the name of the states, issued an edict on the 9th of August 1622, by which they decreed, that all who should carry any thing to the Spanish camp before Bergen-op-Zoom, should be considered as enemies. The same counsellors, on the 2d of September 1624, and on the 21st of March 1636, decreed the same thing against those who should carry any thing to the Spanish camp.

Those edicts are undoubtedly too unjust to be defended, if the camp to which they apply is not besieged, and the things

* Goods prohibited by treaty between the sovereigns of the captors and the captured, though otherwise they might not be considered as contraband, are condemned ex delicto, and no freight is allowed upon them. The Neutralitat, 3 Rob. 240. Am. edit.

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At this day, however, the only penalty which is inflicted for trading with a blockaded port is the forfeiture of the property detected in the pursuit of such trade. It is true, that on the strict principles of the law of nations, those who knowingly trade with blockaded ports, may justly be considered and treated as enemies, and so Vattel lays it down in his Treatise on the Law of Nations, 1. 3. c. 7. § 117. But, in the manner that war is now carried on, such treatment cannot extend farther than the confiscation of the property, and perhaps, the imprisonment of the neutral captains and crews, which has sometimes, though rarely, taken place, and can only be justified (if at all) in very flagrant cases. Vattel does not mention any specific punishment to be inflicted in cases of this kind, though he relates the story of Demetrius, who hanged the captain and pilot of a ship carrying provisions to Athens, which he was besieging. But precedents are not now to be drawn from such barbarous times.

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are not carried through the neutral's territory. The two first, however, extended to the subjects of the United Netherlands, to neutrals, and to the subjects of those states who were under the protection of the Dutch. But, although every sovereign has a right to enact with respect to his own subjects, what laws he may think proper, and no one can find fault with him for so doing; yet as far as they apply to neutrals, and the subjects of countries under the protection of the states, those edicts cannot be supported unless they are restricted to contraband only. The third edict of the 21st March 1636, relates to neutrals who should carry provisions or implements of war to the Spanish fortresses; but that was done, as is expressly mentioned, by way of retaliation, because the Spaniards had treated as enemies those who had assisted the town of Maestricht with provisions and arms. Retaliation,* therefore, removes the hardship of the edict as to provisions, which otherwise neutrals may lawfully carry, if there be no treaty to the contrary; but it is otherwise with arms and military stores, even though they be carried to a place not besieged, and so far this edict is perfectly just. As to other things, whether they were or not lawfully prohibited by the edicts of the Spaniards or of the states-general, depends entirely upon the circumstance of the places being besieged or not.

* It is but seldom that we are disposed to controvert the principles laid down by this excellent author, but we must here again refer the reader to what he says himself in chapter 4: Retorșio non est nisi adversus eum, qui ipse damni quid dedit, ac deindè patitur, non verò adversùs communem amicum. "Retaliation is only to be exercised on him who has inflicted the injury, and therefore justly suffers for it, but not on a common friend." See above, p. 33. How then can he maintain in the present instance, as well as in another (p. 61.) that an injury done to a neutral can be justified on the principle of retaliation upon the enemy? We would have supposed that national prejudice (as in both the above cases the Dutch were the authors of the injury to neutrals) had made him overlook the very principle on which he had set out in the beginning of his work, were it not that he applies it there against a similar act of his own government, and freely reproves their conduct in several other instances. Whatever may have been his motive, we are compelled to say that he is here in direct contradiction with himself, and that on his own clear and luminous principle, his justification of the conduct of the Dutch in these two instances cannot be supported. T.

The same law which obtains with respect to towns that are really besieged, and by a parity of reasoning has been applied to camps, as being, as it were, besieged, applies also to enemy's ports, which are blockaded by ships of war, and therefore are considered as in a state of siege. There is on this subject a remarkable decree of the states-general, of the 26th of June 1630, made with the advice and opinion of the court of admiralty of Amsterdam, and of other courts of admiralty, nay, it is probable, with the advice also of some private lawyers.* At that time, the states were blockading with ships of war the maritime coast of Flanders; it was then made a question whether neutrals might carry on trade with the ports of that country, and upon that the states made the decree in question, which we shall here lay before our readers and accompany it with a few remarks.

The first article provided "that the ships and goods of neutrals which should be found going in or coming out of the enemy's ports in Flanders, or being so near thereto, as to shew beyond a doubt that they were endeavouring to run into them, should be confiscated, because their high mightinesses kept the said ports continually blockaded with their ships of war, in order to prevent any commerce between them and the enemy;} as had been the custom many years before, after the example of all other princes, who had claimed and enforced a similar right in like cases.

By the second article it was ordered that the ships and goods should be confiscated, "if from the charter-parties, or other documents on board, it should appear that the vessels were bound to the said Flemish ports, although they should be found at a distance from them, unless they, of their own accord, before coming in sight of or being chased by our country's ships, should repent their intention, while the thing was yet undone, and alter their course; in which case the matter should be decided according to conjectures and circumstances."

*Consil. Holland. vol. 5. Consil. 161.

†The Spaniards, whose king was at that time sovereign of the county of Flanders, and of the rest of the Catholic Netherlands.

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