be

tercept, capture, and condemn her, if he can. She may unsold, the property of the builder, or she may have been purchased by neutrals on speculation, to be offered for sale in another market. As soon as she has left the protected region, her character depends on her destination;—if that be to a neutral port, however near the coasts of a belligerent, to be sold there, although the agents of one belligerent only are waiting to bid for her, she constitutes the unassailable, the unquestionable, even, according to the strictest notions of belligerent rights, the innocent goods and chattels of the owner. If the adverse belligerent want her, unless he can bargain for her on the sea, he must go to the market and offer a tempting price. But when her destination is to the belligerent, there arises a conflict between the neutral and belligerent rights; the neutral is entitled to sell his vessel, and to send her where he thinks it most to his advantage, for sale; but the belligerent, on the natural right of defence, is entitled to intercept the weapons with which he will otherwise be assailed. The right of self-defence against destruction is a higher right than that of the trader to sell his ship, and when two rights come in conflict, that which is paramount must prevail. The war-ship destined to a belligerent port for sale is subject to this right; she is contraband of war.

1444. But this, which is the foundation and, with its incidents, the limit of the rights of war in respect of contraband, does not affect the trader with guilt; although the expression guilty is a convenient mode of distinction in speaking of capture and search.

1445. Nor is the sending of an armed ship fully equipped, even to a belligerent port, for sale, an offence against either the American (Santissima Trinidad) or English municipal law. It is merely an impartial commercial speculation, of which, as in many other adventures, the speculator runs the risk. He does not trouble himself with any intention or order, that she should be employed in the service of any

nation or person against any other; his intention is to sel her to the best customer, be he one of his own or any other neutral nation, or of either of the parties to the war; after the purchase is completed, it is indifferent to him whether she founder or not. Undoubtedly, when he sends her to a belligerent port, he hopes to sell her there; but he may be disappointed of his customer, or if she is sold, his intention is accomplished as soon as he has received the price.

1446. The ship which has been sold to a belligerent, whether armed or unarmed, is then to be considered by the adversary, whatever her destination, an enemy's ship. The ship of war sent by the neutral owner to an enemy's port for sale is simply contraband of war.

1447. We have now to consider what contraband is, using that expression for contraband of war.

1448. We have already spoken of the armed ship, which is the perfection of contraband, as it contains all essentials of an armament, with one great exception, the military commander and his crew.

1449. As the shipbuilder is at liberty to pursue his vocation to so formidable an extent, it is obvious that the founders, the powder manufacturers, and all the artisans of the machinery and implements of war, may pursue their craft, and that they will pursue it vigorously, when their productions are most in request. As the ships may be built in the neutral dockyards, so the mortars, the cannon, the rockets, the shell, the rifles, the bayonets and the swords, the gunpowder, and all the other materials of destruction, may occupy the quays and fill the warehouses of the neutral ports. The neutral sovereign may behold all these menacing materials on his wharves, and loading on board his merchant ships. He is not bound to interfere with their export; he is not bound to inquire as to their destination. Though he may deem it proper for his own safety, he is not bound to refuse the clearance for belligerent ports. The cruisers of the belligerents are on the sea; he has not protected this

branch of the national commerce; the merchant and the belligerents must settle the conflict between their rights.

1450. But the neutral sovereign has not abandoned the commercial rights of his people to the despotism of those occupied in the war; his ships sail, though not attended by convoy, under the protection of his flag. It is only in respect of contraband of war that they may be searched and arrested, or on their way to break a blockade. Nor may they, on suspicion of bearing contraband, or of being bound to a blockaded port, be insulted or improperly treated or delayed.

1451. We have, then, to ascertain what is contraband. This depends upon its quality and its destination or ownership. To possess the character of contraband, it must possess two of those characteristics. It must be of the quality of contraband, and the property of the enemy of him who would capture it; or otherwise, it must be of the quality of contraband, and destined to such enemy.

1452. In some countries, as in Prussia and Austria, the municipal law has prohibited the carriage of contraband by the subjects; of course, contraband according to the acceptation in the country to which the law applies.

1453. It is not unusual, on the outbreak of a war, for the neutral nations not only to warn their subjects of the danger of their enterprises in the carrying of contraband, but also to prohibit the export of specific articles to either of the belligerents. Such practice, when adopted, is as a matter of national policy, and not on account of any obligation imposed by the public law.

1454. The belligerent nations also, on the breaking out of war, generally proclaim their views on the subject by ukases, edicts, decrees, or orders of council, in which, in effect, they sometimes command all nations to abstain from conveying to the ports of the enemy any of the articles which they designate contraband; and as surely as they proclaim the iniquity of selling it to the enemy, they purchase it themselves.

1455. Nothing is contraband unless it is property of a belligerent, or destined to a belligerent; we do not say to a belligerent port.

1456. If it be the property of a belligerent, or destined to a belligerent, his adversary may take it, although on board a neutral ship.

1457. We will first inquire as to its quality. Practice affords no guide, even if practice could create the law. If all things which have been treated as contraband were of that character, during war all commerce between neutrals and belligerents must cease.

1458. There are advocates of belligerent rights who assert that the belligerent may intercept every commodity, the deprivation of which would distress the foe, utterly regardless of the rights of neutrals, and as thoughtless of the mischiefs which it may bring upon him who asserts the right.

1459. The neutrals have a right to say, and to maintain the assertion by menace, and if necessary by convoy, by confederacy and proclamation of war, that nothing is or shall be treated as contraband except that which directly assists the belligerent in the conduct of war.

1460. It has often been determined between nations in their treaties what alone shall be considered as contraband, or what shall be excluded from that character. Whatever either party involved in a war is, under treaty, bound to permit, or, in fact, does permit, his adversary to import from one neutral, or from his own ports, he cannot treat as contraband when imported by others; inasmuch as he permits his antagonist to be supplied with such articles, he cannot assert that their exclusion is necessary for his self-defence, or complain of any nation which affords the supply. He cannot confer a monopoly on one of his friends. But two allies in a war are not bound to admit the importation into the country of their adversary of articles really of the quality of contraband, merely because they are not treated by them as such in a treaty to which they are the only parties.

Where the article is equivocal, the treaty may be reasonably cited against them as expressing their opinion at a happier time. Franciska. Atlanta.

1461. The essential quality of contraband is that it will directly aid the enemy in the conduct of war.

1462. Despatches from the enemy to his officers or others engaged in his service, and between such persons themselves, may obviously constitute most valuable assistance in the war. Such despatches are contraband, and those who carry them knowingly are guilty of violating the belligerent right. Except that the neutral nation is not only entitled to a free intercourse between herself and her own ministers in the belligerent country, but also to protect the correspondence between each belligerent and his ministers resident at her court. Caroline.

1463. The search and detention in respect of despatches is, however, confined to private ships. Public packets convey, in conformity with their duty, such documents as are, according to the general regulations to which they are subject, committed to their charge. The officers and crew of such packets have to govern and navigate the ship, they have no authority to violate the confidence of the documents entrusted in due course to their care; they consequently are not responsible, nor is their ship responsible, for the contents of the letters and despatches which she may convey. Nor can she be taken by a belligerent for examination before any court; nor can any officer of the belligerent break open and examine the correspondence on board. So any other ship which is bound to receive and convey letters is in effect to that extent a packet, and entitled to the same immunity. But the master or any person on board any such ship, knowingly, in excess of his duty, conveying despatches or military correspondence to the enemy, cannot claim the privileges to which he is entitled while acting within the rules which he is bound to obey.

1464. Cannon, mortars, all firearms, gunpowder, shells,