BOOK III. On the other hand, whenever I am at war with a nation, CHAP. VII. both my safety and welfare prompt me to deprive her, as far as possible, of every thing which may enable her to resist or injure me. In this instance, the law of necessity exerts its full force. If that law warrants me, on occasion, to seize what belongs to other people, will it not likewise warrant me to intercept every thing belonging to war, which neutral nations are carrying to my enemy? Even if I should, by taking such measures, render all those neutral nations my enemies, I had better run that hazard, than suffer him who is actually at war with me thus freely to receive supplies and collect additional strength to oppose me. It is, therefore, very proper, and perfectly conformable to the law of nations (which disapproves of multiplying the causes of war), not to consider those seizures of the goods of neutral nations as acts of hostility. 2112. Contraband goods. When I have notified to them my declaration of war against such or such a nation, if they will afterwards expose themselves to risk in supplying her with things which serve to carry on war, they will have no reason to complain if their goods fall into my possession; and I, on the other hand, do not declare war against them for having attempted to convey such goods. They suffer, indeed, by a war in which they have no concern; but they suffer accidentally. I do not oppose their right: I only exert my own; and if our rights clash with and reciprocally injure each other, that circumstance is the effect of inevitable necessity. Such collisions daily happen in war. When, in pursuance of my rights, I exhaust a country from which you derive your subsistence,-when I besiege a city with which you carried on a profitable trade, I doubtless injure you; I subject you to losses and inconveniences; but it is without any design of hurting you. I only make use of my rights, and consequently do you no injustice. But that limits may be set to these inconveniences, and that the commerce of neutral nations may subsist in as great a degree of freedom as is consistent with the laws of war, there are certain rules to be observed, on which Europe scems to be generally agreed. The first is, carefully to distinguish ordinary goods which have no relation to war, from those that are peculiarly subservient to it. Neutral nations should enjoy perfect liberty to trade in the former: the belligerent powers cannot with any rea[ 337 ] son refuse it, or prevent the importation of such goods into the enemy's country: the care of their own safety, the necessity of self-defence, does not authorize them to do it, since those things will not render the enemy more formidable. An attempt to interrupt or put a stop to this trade would be a violation of the rights of neutral nations, a flagrant injury to them ;— necessity, as we have above observed, being the only reason which can authorize any restraint on their trade and navigation to the ports of the enemy. England and the United Provinces having agreed, in the treaty of Whitehall, signed on the 22d of August, 1689, to notify to all states not at war with France, that they would attack every ship bound to or coming from any port of that kingdom, and that they beforehand declared every such ship to be a lawful prize,-Sweden and Denmark, from whom some ships had been taken, entered into a counter-treaty on the 17th of March, 1693, for the purpose of maintaining their rights and procuring just satisfaction. And the two maritime powers, being convinced that the complaints of the two crowns were well founded, did them justice.* Commodities particularly useful in war, and the importation of which to an enemy is prohibited, are called contraband goods. Such are arms, ammunition, timber for ship-building, every kind of naval stores, horses, and even provisions, in certain junctures, when we have hopes of reducing the enemy by famine.† (153) BOOK III. CHAP. VII. ther such goods may be confisca But, in order to hinder the transportation of contraband 113. Whegoods to an enemy, are we only to stop and seize them, paying the value to the owner, or have we a right to confiscate them? Barely to stop those goods would in general prove ted. an ineffectual mode, especially at sea, where there is no possibility of entirely cutting off all access to the enemy's harbours. Recourse is therefore had to the expedient of confiscating all contraband goods that we can seize on, in order that the fear of loss may operate as a check on the avidity of gain, and deter the merchants of neutral countries from supplying the enemy with such commodities. And, indeed, it is an object of such high importance to a nation at war to prevent, as far as possible, the enemy's being supplied with such articles. The Pensionary De Witt, in a letter of January 14, 1654, acknowledges that it would be contrary to the law of nations to prevent neutrals from carrying corn to an enemy's country; but he says that we may lawfully prevent them from supplying the enemy with cordage and other materials for the rigging and equipment of ships of war. In 1597, queen Elizabeth would not allow the Poles and Danes to furnish Spain with provisions, much less with arms, alleging that, "according to the rules of war, it is lawful to reduce an eneiny even by famine, with the view of obliging him to sue for peace." The United Provinces, finding it necessary to observe a greater degree of circumspection, did not prevent neutral nations from carrying on every kind of commerce with Spain. It is true, indred, that, while their own subjects sold both arms and provisions to the the same edict declared that "the con- (153) What are contraband goods, BOOK III. as will add to his strength and render him more dangerous, CHAP. VII. that necessity and the care of her own welfare and safety authorize her to take effectual methods for that purpose, and to declare that all commodities of that nature, destined for the enemy, shall be considered as lawful prize. On this account she notifies to the neutral states her declaration of war (§ 63;) whereupon, the letter usually give orders to their subjects to refrain from all contraband commerce with the nations at war, declaring, that if they are captured in carrying on such trade, the sovereign will not protect them. This rule is the point where the general custom of Europe seems at present fixed, after a number of variations, as will appear from the note of Grotius, which we have just quoted, and particularly from the ordinances of the kings of France, in the years 1543 and 1584, which only allow the French to seize contraband goods, and to keep them on paying the value. The modern usage is certainly the most agreeable to the mutual duties of nations, and the best calculated to reconcile their respective rights. The nation at war is highly interested in depriving the enemy of all foreign assistance; and this circumstance gives her a right to consider all those, if not absolutely as enemies, at least as people that feel very little scruple to injure her, who carry to her enemy the articles of which he stands in need for the support of the war. She, therefore, punishes them by the confiscation of their goods. Should their sovereign undertake to protect them, such conduct would be tantamount to his furnishing the enemy with those succours himself:-a measure which were undoubtedly inconsistent with neutrality. When a nation, without any other motive than the prospect of gain, is employed in strengthening my enemy, and regardless of the irreparable evil which she may thereby entail upon me,* she is certainly not my friend, and gives me a right to consider and treat her as an associate of my enemy. In order, therefore, to avoid perpetual subjects of complaint and rupture, it has, in perfect conformity to sound principles, been agreed that the belligerent powers may seize and confiscate all contraband goods which neutral persons shall attempt to carry to their enemy, without any complaint from the sovereign of those merchants; as, on the other hand, the power at war does not impute to the neutral sovereigns these practices of their subjects. Care is even taken to settle every particular of this kind in treaties of commerce and navigation. 114. We cannot prevent the conveyance of contraband goods, Searching without searching neutral vessels that we meet at sea: we [339] have therefore a right to search them. Some powerful nations In our time, the king of Spain prohibited all Hamburgh ships from entering his harbours, because that city had engaged to furnish the Algerines with military stores; and thus he obliged the Hamburghers to cancel their treaty with the Barbarians.-Ed. A.D 1797. CHAP. VII. have indeed, at different times, refused to submit to this BOOK III. search. "After the peace of Vervins, Queen Elizabeth, continuing the war against Spain, requested permission of the neutral king of France to cause all French ships bound for Spain to ships. (154) be searched, in order to discover whether they secretly carried any military stores to that country: but this was refused, as an injury to trade, and a favourable occasion for pillage.' At present, a neutral ship refusing to be searched, would from that proceeding alone be condemned as a lawful prize. (154) But, to avoid inconveniences, oppression, and every other abuse, the manner of the search is settled in the treaties of navigation and commerce. It is the established custom at present to give full credit to the certificates, bills of lading, &c., produced by the master of the ship, unless any fraud appear in them, or there be good reasons for suspecting it. (155) If we find an enemy's effects on board a neutral ship, we ? 115. Eneseize them by the rights of war: (156) but we are naturally my's pro (154) As to the right of visiting and a deliberate and continued resistance searching neutral ships, see the celebrated letter of the Duke of Newcastle to the Prussian Secretary, A. D. 1752; 1 Collect. Jurid. 138; and Halliday's Life of Lord Mansfield; Elements of General History, vol. iii. p. 222; Marshall on Insurance, book i. ch. 8, sect. 5; Garrels v. Kensington, 8 Term Rep. 230; Lord Erskine's Speech upon Orders in council, 8 March, 1808; 10 Cobbett's Parl. Deb. 955; Baring upon Orders in Council, p. 102. Clearly at this day the right of search exists practically as well as theoretically. The right of search, and of the consequence of resistance, and of the papers and documents that ought to be found on board the neutral vessels, are most clearly established by the best modern decisions; see Barker v. Blakes, 9 East Rep. 283, and numerous other cases, collected in 1 Chitty's Commercial Law, 482-489; Chitty's L. Nat. 190-199. The international law upon the subject will be found admirably summed up by Sir Wm. Scott, in his Judgment in the case of the Maria, 1 Rob. Rep. 346, and 1 Edwards's Rep. 208, confirming the authority of Vattel, and on which he thus concludes: "I stand with confidence upon all fair principles of reason,-upon the distinct authority of Vattel, and upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, of search, on the part of a neutral ves- Grotius, ubi supra. (155) As to papers and documents that ought to be on board, see 1 Chitty's Commercial Law, 487-489, and Chitty's L. Nat. 196-199, and authorities there collected. The owner of the neutral vessel has no remedy for loss of voyage, or other injury occasioned by the reasonable exercise of the right of search (infra note), but he may insure against the risk; Barker v. Blakes, 9 East, 283.-C.-{Seo Maley v. Shattuck, 3 Cranch, 458.} (156) Particular states have relaxed the rigour of this rule, and, by express treaty, granted immunity, by establishing a maxim, "Free ships, free goods;" see instances, 5 Rob. Rep. 52; 6 Rob. Rep. 24, 41-358.-C. perty on BOOK III. bound to pay the freight to the master of the vessel, who is CHAP. VII. not to suffer by such seizure.* (157) board a neu 116. Neu tral property enemy's The effects of neutrals, found in an enemy's ships, are to tral ship. be restored to the owners, against whom there is no right of confiscation; but without any allowance for detainer, decay, on board an &c. (158) The loss sustained by the neutrals on this occasion is an accident to which they exposed themselves by embarking their property in an enemy's ship; and the captor, in exercising the rights of war, is not responsible for the accidents which may thence result, any more than if his cannon kills a neutral passenger who happens unfortunately to be on board an enemy's vessel. (158) ship. 2117. Trade Hitherto we have considered the commerce of neutral nawith a be- tions with the territories of the enemy in general. There is a sieged town. particular case in which the rights of war extend still farther. (159) All commerce with a besieged town is absolutely prohibited. Blockade. If I lay siege to a place, or even simply blockade it, I have a right to hinder any one from entering, and to treat as an enemy whoever attempts to enter the place, or carry any thing to the besieged, without my leave; for he opposes my undertaking, and may contribute to the miscarriage of it, and thus involve me in all the misfortunes of an unsuccessful war. [ 340] King Demetrius hanged up the master and pilot of a vessel carrying provisions to Athens at a time when he was on the point of reducing that city by famine. In the long and bloody war carried on by the United Provinces against Spain {See the rule as recognised by the United States. The Nereide, 9 Cranch, 110.-"I have obtained," said the ambassador Boreel, in a letter to the Grand Pensionary, De Witt, "the abrogation of that pretended French law, that enemies' property involves in confiscation the property of friends; so that, if henceforward any effects belonging to the enemies of France be found in a free Dutch vessel, those effects alone shall be liable to confiscation; and the vessel shall be released, together with all the other property on board. But I find it impossible to obtain the object of the twenty-fourth article of my instructions, which says, that the immunity of the ressel shall extend to the eargo, even if enemies' property." De Witt's Letters and Negotiations, vol. i. p. 80.-Such a law as the latter would be more natural than the former.-Edit. A. D. 1797. 1 Molloy, 1-18; and Twilling Ruet, 5 Rob. Rep. 82.-C. (158) 1 Chitty's Commercial Law, 440; Grotius, b. iii. c. vi. vi.; Marshall on Insurance, b. i. c. viii. v. The loss of voyage and damage may be insured against; Barker v. Blakes, 9 East, Rep. 283.-C. (159) As to violation of blockade in general, see the modern decisions, 1 Chitty's Commercial Law, 449 and 460-492; Chitty's L. Nat. 129–144, and 259; and see, as to the distinction between a military and commercial blockade, and their effect, 1 Acton's Rep. 128. On a question of violation of blockade, Sir W. Scott said, "Three things must be proved-1st, the existence of an actual blockade; 2dly, the knowledge of the party supposed to have offended; and 3dly, some act of violation, either by going in or coming out with a cargo laden after the commencement of blockade." In case of Betsy, 1 Rob. Rep. 92, and Nancy, 1 Acton's Rep. 59.-C.-{Fitzsimmons v. The Newport Ins. Co., 4 Cranch, 185.} † Plutarch, in Demetrio. (157) Schwartz v. The Ins. Co. of North America, 3 Wash. C. C. Rep. 117.)-But, in these cases, the freight to be paid is not necessarily to be measured by the terms of the charter-party, |